The incompetent attorney saga continues

[cosmicmama]

So I posted before about how my attorney had my paperwork all screwed up and our payment about $1000 more than we can afford in our plan. I asked them going on two weeks ago to please amend the plan, and they are still working on it, in the meantime, we had our 341. The trustee basically said the paperwork made no sense, there were several errors and omissions, and he scolded us for signing it. He said "We cannot go forward with this until this is fixed", but instead of dismissing us, he gave us ten days to file an amendment. We have a week left, and again my attorney and his wife (paralegal) are being retarded and dragging feet. I have no faith in them whatsoever anymore, I feel they don't understand the forms any better than I do, and I can't communicate with them. Every time I bring up a concern, the paralegal acts like I'm bothering her and like I don't know what I'm talking about, reassures me that it is ok the way she is doing it, and goes ahead. I asked for a sit-down a couple of days ago to go through the entire filing package and make sure we have everything right for the amended plan, and she said it wasn't necessary and refused. Now I'm waiting for her to finish the amendment, and if it goes like it did last time, I will bring up my concerns about things that don't make sense to me, and she will get defensive and start yelling. I don't want to feel rushed and pressured to sign a plan that I'm not comfortable with like I did last time (because we were trying to file before the end of the year and it was New Years Eve at 5 pm and she was throwing a fit). What can I do? Can I ask for a dismissal and start over with a better attorney? Or if we file the amendment and the trustee still doesn't like it, will he dismiss us with prejudice or without? AND, will we get back the $2800 payment we've already made (which is about three times what my disposable income is, and caused me to drain all my savings just to be able to do it, with the hopes that with the amended plan the next one would be much lower).

This is a mess, I feel I would have been just as well off if I had filed pro se. This is a small town attorney who advertises that he does bankruptcy, but apparently hasn't done one in a very long time.
Yes, I know I should have researched him further, but its done now and I just need help fixing this mess.

[cosmicmama]

Anyone? I'm just sick with worrying about this, and I don't trust my attorney at all. Is it possible or feasible to change attorneys in the middle of 13?

[optimistic1]

I am sure he does do bankruptcies, but Chapter 7's, not 13's which are more complex, something you already know.

I would do just as suggested, wait or ask for a dismissal, and ask for a refund of your fees, and start over. If they refuse, you can go through your local state board to resolve the issue.

What state do you live in?

[cosmicmama]

I live in North Carolina.

[lrprn]

It's obvious that your current lawyer does not understand Ch 13 filings. You have three choices:

(1) Fire your attorney and find another asap to ask the court for an extension and refile your amended forms;
(2) Ask to voluntarily dismiss your 13, but the problem here is that you may not be able to refile for six months; or
(3) Report your current attorney to the North Carolina bar disciplinary board for misrepresentation - here's the contact information from http://www.abanet.org/cpr/regulation/directory.pdf:

North Carolina State Bar Counsel
Post Office 25908
Raleigh, NC 27611-5908
(919) 828-4620
Fax: (919)834-8156
Website: www.ncbar.gov

While you have the disciplinary board on the phone, get referrals for excellent Ch 13 bk lawyers in your area, and follow #1. Personally (3) is likely to bring you the best outcome, plus then you've done what you could to make sure your current bk lawyer can't hurt others the way you've been hurt.

As your trustee said, please don't sign your amended Ch 13 bk forms if they propose a plan with payments you know you cannot afford and will fail trying to make. I'm sorry that your lawyer has so poorly represented you - you deserved better.

Now you have a better idea about what to look for when retaining a Ch 13 attorney. Finding the right attorney is the most important thing you can do to dramatically increase your chances of finishing your Ch 13 plan successfully. Keep us posted about what you decide to do - we're rooting for you!

[cosmicmama]

Thank you so much! I am going to give them a chance to fix our plan this week, I've figured out what I think the payment I should be based on our income and secured/priority debt, and if it's more than that I won't sign. I'm sick of worrying over this, and if they don't step up, the trustee will dismiss the case, I will cut my losses and find a better attorney.

[HHM]

I must slightly disagree with lrprn. You need to take steps to salvage your bankruptcy ASAP, going with option (3) is not going to accomplish that. Option (3) is something you do after you stabilize your case.

Realize, it is actually quite tough to nail an attorney for any sort of malpractice or other discipline in the bankruptcy field. Reason being, a client's circumstances dictate the outcome of a bankruptcy, not the attorney. Also, it is very difficult to show that you are actually harmed by the advice of the attorney.

[cosmicmama]

So, here we are, a week after the 341. I called my attorney's office, the paralegal again acted like I was annoying her, states she will have the amended plan done this week (the deadline that the trustee is Friday, and I will be out of the state all next week).

Here is a little detail about our case that I didn't share before.
We sold our business (coffee shop) on 100% owner financing last September, and the buyer was supposed to pay us $500 a month for 30 months until it was paid off. We put that on our original paperwork as monthly income. At the end of December the buyer had only made one payment so we sent her notice of default. Then she wrote us a check to cure the default, which bounced. We filed BK on 12/30, but after the check bounced, on 1/5 we sent her a letter stating that the contract was void and she needed to move out of the coffee shop and return our equipment to us.
We listed her as a creditor on our BK filing, so she had gotten a notice in the mail about it. When she got our letter demanded she vacate the business, she called everyone she knew and found someone to give her the amount of payoff ($14,000). Then she called me and demanded I meet her the next day and accept her payoff. I told her no, that our contract was null and void, that she had had plenty of opportunity to communicate with us before and had refused to do so, and had skipped payments and written a bad check instead. I didn't want to accept her money because I didn't want it to screw up my BK. So, without my knowing, she called my BK attorney and told them that she was my creditor, that she was trying to pay me off and I wouldn't accept her money (of course she didn't tell them the rest of the story). WITHOUT MY CONSENT, the attorney's office told her to send THEM the check, and they would work it out. Now, for three weeks, my attorney has had my money. He had some stupid notion that the trustee was going to take it, put it in an account, and take my payments from that each month until it was gone. At the 341, the trustee said he didn't want it and had nowhere to put it. Now, my attorney is supposedly trying to figure out a way to include the 14,000 as income (as it was originally until they made an unauthorized business decision for me) so I can use it as payments, instead of having the court take it.

So now, not only has my attorney screwed up my paperwork, but they are screwing with my money. My payments are $2800, way too high for me to afford, which is why I told them A MONTH AGO that I wanted to amend my plan and surrender one of my houses. Now my next payment is due and I can't pay it because they STILL haven't gotten my new plan ready to file. The excuse is that they don't know what to do with the $14,000 (which is why I didn't want to accept it in the first place). Now we have three days to file the amendment, because the trustee only gave us 10 days to fix the messes he found on our original plan.

I really want to dismiss the case, take my $14,000 and cure the arrearages on my mortgages, start a payment plan for the IRS, and wait 6 months to refile with an attorney that knows what he he doing. But not only are they incompetent, there is a major personality clash and I can't even communicate with them.

Is it inappropriate for me to write a letter to the trustee, explaining that I am uncomfortable with the way my attorney is representing me, and asking for a dismissal w/o prejudice? Advice, please, this mess is stressing me out. I thought it would have gotten better AFTER I hired an attorney and filed BK, but they have just made it so much worse!

Edit: One more thing...I already made one $2800 payment to the trustee, but they haven't dispersed it to any creditors yet because they are waiting for the amended plan. Will I get that payment back, minus trustees fees, if I am dismissed? If not, what will the trustee do with it?

[indebt00]

I sure hope someone has some advice and you can FIRE that attorney...

just wanted to say "good luck"

[cosmicmama]

C'mon, anybody have any words of wisdom?
Can I write a letter to my trustee, requesting dismissal due to irreconcilable differences with my attorney?

[cosmicmama]

How can I file a request for dismissal myself, if my attorney refuses to do it?
(Remember, I asked them to amend my plan a month ago and they still haven't done it).

[olivies]

I'm curious to know if you can just fire the attorney and hire a new one to take over (because I may end up in the same boat myself) or just file the amendment on your own without dismissing. I would probably call your court clerk and find out what the best course of action is. AND I would demand your money from the coffee shop funds from your attorney. If you didn't know they took funds from someone who owed you money, and set them up in a trust account (here's HOPING that's what they did) in your name without your knowledge, that seems at least unethical if nothing else.

[BKDefender]

The problem with firing your attorney after you've filed BK is that all of your money after filing BK is property of the estate with certain allowances for food/clothing/housing expense/mortgage/etc, so you have to ask the court for permission if you want to pay money to another attorney for their services. You could always fire your attorney and request a dismissal of your case then hire another attorney to file a brand new Chapter 13 case. A chapter 13 case that is not one that was converted from a chapter 7 SHALL be dismissed at the request of the debtor.

Your problem though is getting your $2800 back. Most attorneys around Las Vegas Nevada take at or less than half of that up front with the remainder paid through the chapter 13 plan, me included. I don't know what the practice is in your area but if I required clients to pay me all of it up front, I wouldn't have many clients - price competition being what it is.

--William

[HHM]

Assuming the case wasn't converted from a 7, you can simply file a Notice of Dismissal with the court. It is not even a request, you have the right to dismiss a chapter 13.

HOWEVER, as a practical matter, I would let this situation play out some more. You are in the no-mans land between the trustee meeting and the confirmation. The trustee is likely going to object to something in the plan anyway. It is this time when your "real" chapter 13 will emerge.

[cosmicmama]

So, our 10 days (given to us by the trustee to fix the messes with our plan) came and went, and our attorney still didn't have the amended plan ready to file. Plus, our $14,000 was in their trust account (their own doing), and we heard through the grapevine that the woman who just paid us that money for our coffee shop is already trying to sell the equipment out of it and close down. Which made me afraid of losing my business equipment AND my money, through the stupid actions of my attorney. My husband went in this morning and talked with them, and he mentioned dismissing the case. He said it was like a huge weight lifted when he said it, they (the attorney and his wife/paralegal) acted extremely relieved, because they realized that they were about to lose our $14,000 for us, and didn't know how to fix the mess they had made.
I guess I'll be filing again in 6 months. My plan is to take the money from the coffee shop and pay the arrearages on my mortgage, then contact the IRS to start a payment plan for what I owe them. Maybe I'll be in a position to file a chapter 7 later this year if I get those things taken care of, to just wipe out the rest of my debt, which is all unsecured.