ridiculous AP filed by ex spouse pro se but non-admitted atty doing the ppw

[mysticspirit25]

Ok, my friend, who had a chapter 7, was scheduled to be discharged today. At the very last minute, his ex filed a pro se AP with the court objecting to 14k in a civil judgment she obtained against him to be discharged. Her lawyer who did the case in state court is not allowed to practice in federal court (he is an ambulance chaser), so he drafted the "pro se motion" and cited all the applicable rules and why it should not be discharged, and gave it to the ex, and she filed it as her own on day 60, forgot the filing fee, but the court gave her time to remedy the deficiency.

Anyways, is there anything my friend can do since we know the ex (who is dumb as a bag of hammers) got the complaint from her atty who is not allowed to practice in federal, and told her to file it "pro se" when in fact it is not????

Since he is not allowed or admitted I should say in fed court, he is doing this for her and having her pro se it. Total BS.

BTW the 14k civil judgment was BS too...it was from when my friends 17 year old son threw a wrench at my friend and busted his arm and his dad slapped him in the head, he called the police and ran to an atty and sued his dad for 20k for mental anguish, and other bs reasons, medical bills (which the health insurance paid), etc. My friend could not get off work on the day of the trial asked for 3 emergency continuances and was denied, so they got a default judgment.

So what can be done, my friend is pro se as well.

[NoMoreCards]

I do not believe there is any law requiring papers to be filed out by the person that files the papers Pro se. It could have been a friend, or any other relationship that helped fill out the papers. Not much different than having assistance in filling out BK papers prior to them being filed.

Pro se...all that means, is the person is not legally represented by a attorney in the court setting. It does not mean the person is bound by law to fill the papers out without assistance.

This is my understanding, however I am sure a expert in this manner will chime in as well.

[mysticspirit25]

I disagree, If I fill out legal forms for somebody and use laws, citations, etc, then I am engaging in the unauthorized practice of law, and its a crime and against the rules of civil procedure. If anybody who is not admitted to the bar prepares legal forms for somebody with or without a fee, it is UPL plain and simple.

[NoMoreCards]

Regardless, the definition is as follows...

A Latin phrase meaning "for himself" or "in one's own behalf." This term denotes a person who represents herself in court. It is used in some states in place of "in pro per" and has the same meaning.

[mysticspirit25]

I agree with you, but I still think it's illegal for anybody who is not an attorney to cause to be entered into public record via a lawsuit to be considered unauthorized practice of law...that is why we have those laws. But the atty won't be there to represent her when she is in court "fighting" so she better brush up on her FRCP.

[shabam]

I disagree, If I fill out legal forms for somebody and use laws, citations, etc, then I am engaging in the unauthorized practice of law, and its a crime and against the rules of civil procedure. If anybody who is not admitted to the bar prepares legal forms for somebody with or without a fee, it is UPL plain and simple.

How can anyone prove he filled out the forms?

She is not filing ch 7; therefore, the rules that apply to a ch 7 application would not apply to filing an AP pro se.

Anyway, I would seek legal advice on this rather than guess or go on opinions.

[shabam]

I agree with you, but I still think it's illegal for anybody who is not an attorney to cause to be entered into public record via a lawsuit to be considered unauthorized practice of law...that is why we have those laws. But the atty won't be there to represent her when she is in court "fighting" so she better brush up on her FRCP.

Guiding someone in filling out, as in explaining, a form is hardly considered legal advice or unauthorized practice of the law.

[AngelinaCat]

There are statutes and limitations to that kind of thing.

I am far from an expert, but I remember seeing something, when working to defend against the AP that was filed against us, that there is a provision in the BK law about filing objections on Day 60 or 61. It's going to take a lot of research and I am headed to bed right now.

I suggest starting by reading HHM's excellent 'sticky' about 'Creditor Objections to Discharge', which is what an AP (Adversary Proceeding) is. Here is the link:

http://www.bkforum.com/showthread.php?t=20075

Many APs are brought about by an ex-spouse, or some other enemy that serve no other purpose than harassing the debtor and trying to mess up his/her BK. We, my 'Hub and I, have certainly had that problem.

Good luck to you, and may God bless+

[shabam]

Speaking of that, I hope the ex-spouse realizes that if the matter proceeds to court and she loses, even for not filing on the appropriate date, she will have to pay for your friends lawyer. Therefore, not only would she not get the $14k but she will be out of pocket and liable for your friends legal fees.

[danaf]

I do not disagree with the unethical points here BUT - in all reality, without proof I doubt anything can be done about it. No doubt, if this goes further, she will be asked who prepared her complaint. Even if she admits the attorney did it, I doubt it will be thrown out on that basis (although I could be wrong). At best, the defendant can file a complaint with the state bar given this matter is too small to litigate (against the attorney).

[mysticspirit25]

Guiding someone in filling out, as in explaining, a form is hardly considered legal advice or unauthorized practice of the law.

what about doing the form for them, and then having that person sign their name to it? Then what exactly is UPL? You cannot give legal advice, bankrupty petition prepaers are not allowed to explain anything....

[mysticspirit25]

I do not disagree with the unethical points here BUT - in all reality, without proof I doubt anything can be done about it. No doubt, if this goes further, she will be asked who prepared her complaint. Even if she admits the attorney did it, I doubt it will be thrown out on that basis (although I could be wrong). At best, the defendant can file a complaint with the state bar given this matter is too small to litigate (against the attorney).

Yeah, I agree with you, it's a small matter, and she is broke, and he (the atty) refused to do anymore. So when she gets to court and is dumbfounded, I am sure it will be realized for what it really is, a vendetta against an ex spouse.

[shabam]

BTW the 14k civil judgment was BS too...it was from when my friends 17 year old son threw a wrench at my friend and busted his arm and his dad slapped him in the head, he called the police and ran to an atty and sued his dad for 20k for mental anguish, and other bs reasons, medical bills (which the health insurance paid), etc. My friend could not get off work on the day of the trial asked for 3 emergency continuances and was denied, so they got a default judgment.

Let me guess this straight:

1. Friend A: 17 year old douche throws a wrench.
2. Friend B: busts arm, consequently this friend's dad slaps around friend A's son. Personally I would have knocked him out, unless it was an accident.
3. Friend A: Calls police and then sues Friend B's dad.
4. Friend B: Dad suffers default judgment because they could not get time off work

[shabam]

what about doing the form for them, and then having that person sign their name to it? Then what exactly is UPL? You cannot give legal advice, bankrupty petition prepaers are not allowed to explain anything....

For someone filing a ch 7, you are right. From what I remember, that was a special provision added in the last bk act. I don't believe this automatically applies to AP or any other non-filing app.

[AngelinaCat]

danaf, you are absolutely correct. There are provisions and hoops the AP filer must prove just to get there.

Our attorney told us that the person filing the AP against us was not using the right format and other things were wrong. BUT, this was a separate issue from our original BK filing and would be costing us more fees, plus travel time from her office to the court and back--a distance of 120 miles round trip.

We could not afford this--we're broke, i.e. Bankrupt!!!

For the OP, I can scan and send to you via PM a copy of the form we got with all the rules and regs on it.

The OP, and anyone else interested, search out the very earliest posts by AngelinaCat and AngelinaCatHub around April 16, 2008. The very reason we joined this forum was the AP from an enemy--and our dissatisfaction with our attorney.

Good luck to you.