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A.J.
A.J., Attorney
Category: Bankruptcy Law
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Experience:  Experienced consumer bankruptcy attorney.
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I filed a chap 13 through my atty and then after about a year

Customer Question

I filed a chap 13 through my atty and then after about a year fell a little behind on my trustee payments -about 2 months - I set up a mtg with my attorney to find out what my options were - the atty suggested that I allow my chap 13 case to dismiss and refile - I tookd the advice of the atty and did just that - I refiled my chapt 13 through the same atty and then he called me 4 days later to say that he had made a mistake - that there was a stipulation on my last filing that prevented me from filing a bankruptcy for 6 months following the dismissal of my bankruptcy - this effectively has caused me to lose my house (sale date is April 2nd) and forced me to relocate and lose my employment also. The atty admitted to me that he made a mistake and offered to file a chap 7 for me for free. Unfortunately a chapter 7 does not allow me to keep my house and will likely prevent me from continuing my career as an insurance agent. What are my options here? Could I expect to win a malpractice
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  A.J. replied 1 year ago.

SavyLawyer :

Hello, and thank you for contacting Just Answer. My name isXXXXX am a bankruptcy law professional, and I look forward to answering your questions this afternoon.

SavyLawyer :

Yes, that does sound like a very strong malpractice case. While there are no guarantees, generally where an attorneys obvious mistake causes such significant damages, there are pretty good grounds for a malpractice suit. There are a number of situations in which the debtor must wait 180 days to file another bankruptcy

SavyLawyer :

If one of the stipulations was that no subsequent case would be re-filed within 180 days, that is certainly something that the attorney of record should have known about. Now, everyone is human, and mistakes are made, but it sounds as if the damages involved are significant. In order to win a malpractice suit, you must be able to show:

SavyLawyer :

(1) A duty of care (this is always true for an attorney), an attorney has a duty of diligence and competence)

SavyLawyer :

(2) The duty of care was breached

SavyLawyer :

(3) The breach caused damages

SavyLawyer :

(4) The damages were foreseeable based on the breach

SavyLawyer :

Based on the information provided, it does sound as if all of the elements for malpractice are met. Again, there are no sure things in a lawsuit, but it does seem as if all of the required elements are there.

SavyLawyer :

Although you have not had the greatest luck with lawyers so far, before pursuing malpractice, I would encourage you to sit down with a malpractice attorney prior to taking action. For a referral, the state bar association may be reached online at:

SavyLawyer :

http://www.texasbar.com/AM/Template.cfm?Section=Lawyer_Referral_Service_LRIS_

SavyLawyer :

or by phone at:

SavyLawyer : (NNN) NNN-NNNN/p>
Customer:

what could I typically expect by pursuing a malpractice case in this circumstance? Is it possible to still save my home? Can you give me an idea of what type of settlement I might expect?

SavyLawyer :

You could expect, should you win a lawsuit, damages covering your actual losses (lost work, loss of personal or real property, including the home, etc), plus there is the potential for punitive damages (Extra money) as well. If the attorney, or their insurance company, wanted to settle, it is near impossible for me to give you an accurate idea of what that might be, there is just no way to asses that on a forum such as this, without being able to review all the evidence available in person.

Customer:

Is it possible to prevent the sale of my house using this potential/pending litigation as a reason? A stay of execution?

SavyLawyer :

If the house has already been foreclosed on, probably not. The homestead exemption in a chapter 7 bankruptcy in Texas appears to be pretty expansive, so that is one route you could try, if the bankruptcy petition is filed prior to the foreclosure being finalized. However, in order for a chapter 7 to protect the home, the debtor typically needs to re-affirm the debt or at the very least be current on the payments. If the debtor is significantly behind on payments and is unlikely to catch up soon, then chapter 7 may be of no help where the lender is motivated to foreclose.

Customer:

unfortunately -the stipulation on the previous bankruptcy prevents me from filing either a chapter 13 or a 7 to protect my home for a period of 6 months following the dismissal of my chapter 13

SavyLawyer :

That is unfortunate. In that case, while waiting for the 180 days to expire, if the mortgage lender is willing to work with you to get current on the payments, that might be one approach. Otherwise, the home may not be protectable. It is probably unlikely that you would be able to use a malpractice action to prevent a sale of a home, although, with the assistance of a malpractice attorney, you could certainly try (I just do not want to give false hope).

Customer:

thank you for the info

A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4296
Experience: Experienced consumer bankruptcy attorney.
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