Attorney is unresponsive and seems to be jerking us around

[Hdb99]

We filed Chapter 13 nearly one year ago. Our situation has never been doable - but became less so after our health insurance premium skyrocketed by 83% as of January 1, 2017. We already had an enormous premium, and most of our debt was either medical debt or a result of medical expenses. Over the course of the past year, our attorney has ignored numerous emails - we finally realized we would need to just make an appointment with him every time we had a question, and that is what we did. Once we found out (in October) how much our insurance premium was going up, he told us that at the first of the year, we could likely easily convert to Chapter 7. We had an appointment with him on January 2. My husband is paid hourly, and had some overtime in the preceding months - our attorney said he needed his income to be lower for 2 months - then come back. We went back last week, with 2 months' worth of paystubs showing an average reduction of $500 per month in income. He wanted the previous 5 months' stubs previous to that (which he had already been given), so we sent him those. He emailed us the next day saying that the average income for 6 months had not changed, so we need another month of reduced income before we can file for a conversion to Chapter 7. Additionally, other expenses have increased over the past several months, so it seems like this should be able to happen. We feel like he is putting us off, not answering questions, and in general, is more concerned with the trustee than advising us. He either is doing a terrible job of explaining things, or truly is jerking us around. We have asked him very direct questions, which are not getting answered. We are considering consulting with a different attorney, at this point. This is my first time asking anything on this forum - thank you in advance for any suggestions.

[justbroke]

There may be a third reason; you may simply not qualify, yet, under a 6 month lookback. To convert to a Chapter 7 you must qualify for the Chapter 7 discharge before converting as you must certify to that question.

Typically, when there is a reduction in income or increase in "allowed" expense during a Chapter 13, attorneys will either a.) seek an abatement of payments to see if the situation changes, b.) seek to lower the payments in the Chapter 13, and/or c.) consider having the case be dismissed. The strategy is important because the attorney must insure that you otherwise qualify for a Chapter 7 at conversion. It's easier to do this when you qualified for a Chapter 7 when you first filed your Chapter 13. In my case, I already qualified with a negative DMI, but I chose Chapter 13 to protect property.

When a debtor's income changes from something like a job loss, in a Chapter 13, the first response is typically an abatement in payments for a few months. Usually the Trustee will agree to that. If there is no change of income in those months, the attorney may do another means test with a lookback of six months. While not all districts require a new means test, you still need to otherwise prove that you would qualify for a Chapter 7 based on the means test. At least this is the case in my district (no means test required, but most attorneys file them anyhow as proof).

Simply put, your change in circumstances is an increase in average income (the overtime) combined with an increase in at least one allowable expense category. Reads as though they countered each other.

I can not readily tell if your attorney is jerking you around, but what I write is the typical process. It can take 3-6 months before the conversion is noticed (filed). I tell everyone to always make an appointment with their attorney when it's not a simple question, and this is surely not a simple question. I would also say that it's only February 27 and you have not had this healthcare premium issue for a significant time. When your "disposable monthly income" (DMI) is calculated, it is based on a six month lookback of all income and not an average of that income period.

Should you choose to hire another attorney, you'll have to fire the first one and they would need to withdraw from your case before another would probably even talk to you.

[Hdb99]

Thank you for your response. I do understand that we have to qualify for the Chapter 7, and we did not initially, as we are above the median income, and the means test did not work in our favor.
I think the biggest problem we have is our attorney communicates very poorly. He has led us to believe over the past several months that we will be able to convert, once the insurance premium went into effect, and there was a reduction in overtime. He doesn't take notes when we are in his office, and seems to forget significant information. I write things down, so I know what was said.
Our attorney advised us to (in preparation for a possible conversion), beginning in January, reduce our plan payment to only cover our mortgage and the trustee's and attorney's fees, which we have done. We are struggling financially, as it is. Based on what you are saying, it seems that everything is based on the 6 months previous, but our questions to clarify how it actually works have gone unanswered by our attorney. We feel like he is not working for us, and our Chapter 13 has given us no relief. We need to do more research - wish I would have found this forum sooner - there is so much info here.

Thank you again for your response - I apologize for the length of my post.

[justbroke]

Welcome to the Forum.

I can't tell whether your attorney is lazy or just not really good at follow through. In many cases, Chapter 13 attorneys are truly hands off after confirmation and it can be a pain getting them "interested" in the case again. I would hope that the attorney at least was minimally responsive and very clear about the process and how slow it could be.

I always tell people, here, that whenever there is an expense of income issue in a Chapter 13 that they immediately contact and work with their attorney -- even when they have to hound them down and sit in their office to wait. It reads as if you have such an attorney. It can get very frustrating and I can tell that you're beyond frustrated at this point. I would also hope that the attorney told you what it would cost to convert along with the time (and timeline) to get everything in order.

It reads as though you have already done some "plan abatement" by reducing your plan payments. That is typically a part of the process to demonstrate a change in conditions. In my district that's done with formal notice to the Trustee and possibly to the court as well. Your attorney may just be slow, deliberately slow, or just simply not motivated. I hope that the reduction in payments are helping during this period where you seek to convert to Chapter 7. The nice thing is that once you convert, the minute it is filed, you make no more payments to the Trustee. Additionally, any new debt that occurred between filing the Chapter 13 and the conversion, can be included in the Chapter 7.

Don't apologize for the length of your posts since my posts are novels in and of themselves.