chp 13 - asset question

[mytwocents]

Feb 2009, i filed a personal chp 13 for myself (not the wife, as this would exclude the house from the bankruptcy).

Bankruptcy was caused by a bad faith lawsuit (i was defendant) that the apparent strategy was to deplete my funds to win (plaintiff had already used this ploy successfully in 8 previous lawsuits against others - it was a trademark lawsuit).

Anyway, as i was sued in Fed Court in Phoenix, AZ and I'm in Virginia, i hired a Phoenix atty, who proved to be the stereotype of an unethical divorce atty. He filed 2 futile motions, costing me $14K over 9 months - i say futile, when i changed attorneys I interviewed 3 intellectual property attys and one by accident commented in response to a stmt i made about the first atty "sandbagging" one of the earlier motions, responded he'd never have expected the judge to rule any other way and he had no idea why that first atty had bothered to file those motions (both the first atty and the 2nd one i went with were high end attys, the 2nd one was and is a frigging saint as far as i'm concerned, the first atty is a bottom feeder.

anyway, in reviewing the matter with another atty, he ended up with the same response - those first motions should never have been filed - complete waste of time.

Point of all this, when the bankruptcy was over, i planned to sue & file a complaint with the bar in AZ against the first atty, so i preserved a claim against that first atty in the chp 13 filing - my BK attorney listed an asset/claim for $1.

I keep getting confusing answers from my BK atty (he's 78 and i'm starting to think he should have retired), some times he tells me any assets i come into 6 months from the filing date are mine to keep, and his staff sez 6 months after the final discharge of the BK, ie at the 66 month mark. But assuming i secure a refund from the first atty in AZ, does it become an asset for the BK trustee to distribute to my creditors, or does it come to me. We've made all our pmts to date but the money sure would make life a little easier.

tks in advance

[mytwocents]

let me try a shorter more condensed / focused version of the question

i filed a chp 13 personal bkruptcy - and preserved a claim against an atty

if i receive any refund from that atty, will the refund be subject to the trustee or will i be entitled to receive it?

tks

[NoTomatoCan]

Point of all this, when the bankruptcy was over, i planned to sue & file a complaint with the bar in AZ against the first atty, so i preserved a claim against that first atty in the chp 13 filing - my BK attorney listed an asset/claim for $1.

Just curious... Under what theory of law are you thinking about suing your former attorney? It is REALLY difficult to show malpractice - the bar is typically set pretty high in terms of what proof you have to show (if that is what you were contemplating)

Also, what is the statute of limitations for your claim - regardless of bankruptcy? I would be surprised if it is greater than 5 years (I thought most malpractice statutes are only like 2 years - but don't know AZ)

[mytwocents]

it was a trademark lawsuit, that was filed against me in phoenix, az

the first two motions he filed were totally futile motions - i don't state that on my "expertise" but after a year and about 23K in billings, his arrogance wore my patience down, so after he lost both motions, i went looking for new counsel.

one of the filings was a motion to dismiss on grounds of lack of jurisdiction in arizona - ie that i should have been sued in va

when interviewing 3 other attys, i found one that proved extremely apt w/ high integrity. One day we were talking, and i stated " i'll go to my grave knowing that atty "X" sandbagged the pleadings in that motion". He asked "how so" and i responded - "he seemed to always round the percentage numbers on my state sales versus national sales awfully high and i could only see one purpose, if he had won that pleading, which he had assured me was a no brainer, there'd have been no lawsuit and he'd have been out of work as the plaintiff would have had to come out to VA to sue me,".

the new atty said (and this was 3 or 4 months after he'd taken over the case) "i wouldn't have expected the judge to rule any other way than he did - there were too many state level issues involved".

I had another trademark atty that i use, that doesn't not practice trial work, and i asked him to confirm what the 2nd atty had said - he confirmed - while not condemning the 1st atty, he did say he say, in a half perplexed/half shocked manner, that he couldn't understand why he'd filed those motions.

there's other evidence i have (thank god i have an office phone system that records every call, and he was aware of the phone recording system's)

his attitude (arrogant, would speak to me like he was a supreme court judge deigning to give me the courtesy of a response) had told me he was awfully callous toward his clients and possibly their interests. discovering the state issues aspect just confirmed

not all attorneys are evil, cold hearted, but i've known hundreds (been in real estate since moses was in shorts) - it's too easy to take advantage of their clients and a good number do.

i realize it's difficult to prove malpractice (if that's the appropriate term - i believe this is more "neglecting a client's interest" and putting his own interests ahead of mine) but the unfortunate part for him is that with this economy, i've got the time, and with the bankruptcy i've got the motivation - dangling me for 11 months (i'd never been sued period, much less for $1M was a stressful affair - i didn't need unnecessary stress while he tried to run his billable hours as high as he could.

Plus i've got another attorney friend (non trademark or intellectual property atty) that's willing to help me pro bono.

[Pandora]

Just curious... Under what theory of law are you thinking about suing your former attorney? It is REALLY difficult to show malpractice - the bar is typically set pretty high in terms of what proof you have to show (if that is what you were contemplating)

Also, what is the statute of limitations for your claim - regardless of bankruptcy? I would be surprised if it is greater than 5 years (I thought most malpractice statutes are only like 2 years - but don't know AZ)

I can attest to this - tried to sue our lawyer back in 1998 for a MASSIVE screw up that ended up costing us a few million dollar lawsuit - he admitted to wrongdoing - was reported to the state bar, and even they found in our favor, stating it was an open and shut case and it was his fault (he neglected to file on time and a few other things I wont go into - too long). Long story short - it took us 2 years from start to finish, the state bar slapped him with massive fines, barred him from ever practicing EEO law and in a few other areas as well ever again - but refused to disbar him, but slapped him with gross misconduct.

Talk about a sucker punch to the stomach. He cost me millions - and basically got a slap on the wrist Small satisfaction is that he cannot do the same thing to anyone else ever again that he did to us and will forever be under the scrutiny of the state bar.

[NoTomatoCan]

it was a trademark lawsuit, that was filed against me in phoenix, az...

...i realize it's difficult to prove malpractice (if that's the appropriate term - i believe this is more "neglecting a client's interest" and putting his own interests ahead of mine) but the unfortunate part for him is that with this economy, i've got the time, and with the bankruptcy i've got the motivation - dangling me for 11 months (i'd never been sued period, much less for $1M was a stressful affair - i didn't need unnecessary stress while he tried to run his billable hours as high as he could.

Ok... Just to be clear on the question you are asking... It seems as though you asking what your right of claim to any settlement would be if you sued your former attorney for malpractice (which is what your "neglecting a client's interest" would fall under).

The points that I am trying to make are:

1. While it sounds like you got a really poor attorney, you likely have very little chance of a successful malpractice claim. Just because other attorneys think one attorney screwed up, and even if those attorneys would be willing to testify to as much in court (unlikely) your chance of recovering anything for malpractice are slim.

2. You do NOT have time on your side. The statute of limitations is probably less than the 5 years of your plan. By the time your plan ends, your right to a claim is barred due to the passing of the statute of limitations.

Sounds like you got jobbed by a bad attorney and it was a very stressful situation. I totally get that. I just wouldn't anticipate being able to collect anything on this 4 years from now...

[catleg]

Unless some lawyer is willing to take the case for a contingency fee, I would forget about it and get on with my life.

The only thing worse than getting taken by a lawyer, is, getting taken by two lawyers.

And I think if the ch13 trustee was willing to let you keep that claim, it's a sign that it's pretty weak.

[mytwocents]

his employment ended July 2008,
but whether the trustee would take the funds, if any are retrieved, is irrelevant - one thing is for sure, i do not intend to let him keep the proceeds of his "work"

i do have an attorney, a good friend (we went to college together, i'm godfather to his daughter) that will assist but i'll do the work myself, both filing the claim & the complaint

right now, my question is: does preserving a claim with the trustee just allow me to continue with action after the bankruptcy, or does it also allow me to keep any awards or settlements?

i'm not a bankruptcy atty, and the one i employed, like i said is 78, i like him but i've gotten too many conflicting answers from him.

having declared it as an asset, and the trustee not taking it for the creditors, would seem to leave it mine but.....