Attorney Problem, need help

[ColoradoBell]

I had a '12th hour' emergency bk filing in order to save my house from sale (not foreclosure, but from an evil exhusband who was trying to sell the house for cheap to an ahhhhh'intimate' friend of his.

I felt lucky to find a lawyer, even though the charge seemed extremely high based on everyone else's rates. ($4000 up front and $6000 in the plan)

I had the barrage of shedules , means test, filled out and all the accompanying info, taxes, counseling etc....so the paralegal and I worked on the forms for an afternoon, the lawyer double checked everything and boom...filed. I was thankful.

Of course the trustee and my ex (who has a $700k annual income so can afford to object to any and everything) objected to the plan and then X and an attorney objected to the lien avoidance of judgment liens, and X asked that the house be freed from the BK estate so it could be sold. All, of course, iinvolved a lot of litigation!

The attorney had mentioned that she didin't do a lot of litigation at the onset, so I admit I was a little concerned that she'd be overwhelmed if there was some.
At the 341, she advised me that we didn't need to respond to the objections to the plan, even tho the advice here seemed to be that yes, we should respond. She was offended when I mentioned that 'I'd heard that it's good to respond because then you get a lot of evidence in the record and that sometimes dissuades peoplle from going to the next step (a hearing)'.

Last week she called and said that 'we had to talk' because the lien avoidance wasn't included in our fee agreement and she wanted another $4000 up front to do those. !!!!!!!!( I reviewed the fee agreement as she asked and it said that 'any additional charges would be included in the plan payment', which in mmy case was the $6000. In the fee agreement that accompanied the BKpetition it said under inclusions: filing,amendments, 341, and all adversarials up to confirmation and nothing was listed under exclusions. So I wrote her a nice letter, said that it seeme dthat shewas worried that if the plan wasn't confirmed that she wouldnt' get paid, and then assured her that I thought we could get the plan confirmed and that she would get paid.

Yesterday, I had an atrial fibrillation attack (essentially, I crash) while driving and got taken to the ER (kicking and screaming cuz there isn't anything they can do about it, and I sure can't afford to pay the charges with a $4000 deductible on health insurance). I let my lawyer know cuz we had a phone consult at 3.

So today she calls and says: I'm withdrawing because we disagree on how to handle your case!!!!! I said, is it the money? She said NO, but I think its the money and her being uncomfortable with litigation. I told her that I felt this would really hurt my chances of a successful confirmation with the trustee the judge and my x...who would certainly sweep in for th ekill with responses due on the 23rd. (She says she will ask for extensions, but still...)

I'm really upset...and the fact that I'm having these a-fib attacks nearly daily isn't helping. I've read on here thatattoneys really hate 'pickingup' where some other attorney left off and that they will charge you double...but what can I do?
If I object to her withdrawing, andeven if the judge says no you can't withdraw...I end up with a lawyer who is angry and probably wont' try very hard.

Ijust can't take much more of this and worry that ex has bought off yet another attorney (as he did in the divorce case...and yes, I caught that attonrey dead to rights)

Sorry this is so long...I'm just really upset right now and my brain hasn't kicked back into gear from the a-fib.

[seanjpatel]

10k for a chapter 13 that is absurd!! File a complaint with the bar assoc in your area. A lawyer that is not comfortable litigating is like a Surgeon uncomfortable operating. BTW you probably need to worry about your health ie.pacemaker for your a-fib.

[ColoradoBell]

Thanks, Sean.

I guess after what I've been through (neverendingdivorcefromhellwhereattorneysandevenju dgesarebought)
I'm rather afraid to file a complaint....I think it might make it even that much harder to find another attorney if I do. I wish I felt I could without getting blacklisted, but I think that I'll have to toss the $4000 as a loss and then if she tries to claim some of the $6000...THEN do some serious complaining.

Sounds like you know about a-fib....sucks! Hoping a pacemaker is a few decades off tho!

[despritfreya]

In response to:

"10k for a chapter 13 that is absurd!! File a complaint with the bar assoc in your area."

Sorry to break this to you, but from what the OP states, with the nasty litigation that is going to take place, she will be lucky to defend her position for under $20K. My guess is that, until she gets tired of dealing with divorce issues (justifiably or not) and decides to move on with life, the legal fees will be ever increasing.

Not all bk's are in-and-out no big deal cases. Many of the cases my firm handles have fees much higher than 10K. Even had one case where the fees were in the 6 figures (by the way, the firm and Special Counsel did eventually get paid on that one) However, if the attorney was not willing to take on the litigation one of two things should have happened.

1. She should have declined representation or
2. Made it perfectly clear that the client, for the litigation aspects of the case, needed to enlist the aid of Special Counsel.

The second choice is routinely done by my firm if the issues are "specialized" requiring the expertise of an attorney who handles similar issues outside of the bankruptcy context.

[ColoradoBell]

Just a quick response...I was divorced in 2003...gave it without a property settlement in exchange for ex's promise that we'd divide assets 'fairly' WITHOUT lawyers or courts. HA! He then asked for a trial. I didn't get temp maintenance and paid all I had to my attorney while he used marital assets to pay his. Perm orders were in late 2005. He appealed. He then kept asking lower court to change perm orders on appeal. Paid the court enough money so that it changed perm orders on appeal so I got less than originally awarded. He lost his appeal, but it didn't matter cuz the judge had already changed everything he wanted anyway. I didn't do anything; I didn't go back to court to ask for anything...didn't have any money to hire an attorney, so I couldn't . All the litigation comes from ex. So please, be careful when you advise someone to stop litigating the divorce/etc/get on with your life....unless you have specifics.

I understand your other comments and agree...if she had said that she'd do the petition and up to the creditor meeting but if there was litigation that I'd have to pay hourly or hire it out to a litigator I would have been fine with that, but she didn't .

My fee agreement price included all adversarial procedures...We aren't to that point yet, as there is only the objection to the plan (X says I can't fund it as I don't have any money...because he won't give me the property that perm orders awarded me) and objection the liens he put on the house he owns 40% of ...liens against me for what he says I owe him, even tho he has no judgments and even tho the state court enjoined either of us from encumbering the property. the liens were put on after he knew i was filing for bk and are preferential in that he had been an 'unsecured' creditor and by liening the house he became secured. Then he insisted that the house be sold to his 'friend' for 1/3rd the appraised value and refused my offer to buy out his share at several thousand more than the offer from his friend. Anyhow, we filed to avoid these liens as they impaired my homestead...he objected . There were 10 separate liens all totaling $130,000 filed on the same day. The motions to avoid were identical except for the amount. The attorney charged $4k to file them which really is a bit much since I helped her write them. The other issue was a motion to remove the house from the estate so that it could be sold to the friend.

I think its unfair to expect that clients have to pay up according to a fee agreement, as I have, but if the attorney decides they want more that he can just withdraw.

[despritfreya]

I was not be accusatorial. I have seen many, many cases just like yours. The blame is never one sided hence, my statement "justifiable or not".

Regardless, the litigation path in your case is obvious and, my guess is that your current attorney will eventually withdraw as she is not ready to be a divorce lawyer. I will also venture a guess that once things really get moving (and they will), the matters will be returned to the State Court as the State Court knows the history of the case, good or bad, and is in a much better position to determine the rights of the parties.

If I was the attny for the ex I would be filing a Motion for Relief asking the bk ct to allow the parties to go back to state court where the issues belong. To entice a favorable ruling from the bk judge I would ask that the state court's authority be limited to only determining the rights of the parties and that any enforcement of those rights remain under the bk ct's jurisdiction, at least for the moment. This would afford the bk ct the opportunity to wash its hands of a domestic dispute since the bk ct hates dealing with them, but keep control over the enforcement of the ruling and the assets of the estate. This is the typical path I see. Would be interesting to see if it holds true to course in your case.

I do wish you the best and I do hope you find counsel capable of defending your position to the fullest.

[ColoradoBell]

I know that you have NEVER seen a divorce case like mine, but again the divorce, the property division , the appeal , and the ruling upholding the property division are years past. The judge is retired. The only thing left to litigate in divorce court is a modification of maintenance. (After a 25 year marriage, I was awarded short term maintenance based on the property I was awarded. But the property I was awarded remains in X's hands, and not having that property to invest (which is what the court said I should live on after short term maintenance ended) drove me into BK.

I filed for Ch 13 protection to plan a way to pay my debts. The plan involves my buying out X's share of my house which right was decreed in perm orders.
My buy out offer is for more than the price X's friend wants to pay for the house. BK partition law allows for said buy out. Yes, the family court could have allowed the buy out, but the current judge has already been bought and has not upheld the perm orders in any way since the previous judge retired.

The BK judge is not being asked to do anything except approve a plan which I have pledged to pay for 5 years. My creditors are better off than in a Ch 7
(if the house is sold to X's friend, there is nothing for creditors and it is my only non-exempt asset). I made the filing in good faith and haven't committed fraud. It is ex who is bringing up objections with no basis (so far)
He says I cvan't afford the plan (because he knows he is holding my retirement assets except for my IRA...My IRA is enough to pay my expenses and the plan for 5 years ). He says that if the house is sold to his friend that 'the creditors benefit' but only he benefits to the detriment of all the other creditors.

Not sure how the answer got so off topic because I think the question posed here originally was that I have a contract with an attonrey who isn't willing to honor the terms of the contract she wrote and filed with the court. And I was asking opinions about what I should do.

Thanks for your good wishes for my simple plan to be confirmed.

[despritfreya]

You may be correct that the posts have gotten off topic - because on poster was amazed that legal fees could be so high. So, in addressing your concerns over the fee agreement, without seeing it I cannot give a seemingly good answer.

So, in general, most fee agreements have a provision that the attorney may ask the Court to allow him/her to withdraw from representation. I think, until such time as your attorney files a Motion to Withdraw, she is bound by the fee agreement and all that it covers.

The fee agreement my firm uses is very, very specific since we handle "out of the norm" case. Fees are charged on an hourly basis and we never "estimate" the amount. If we know there will be litigation that our firm is not comfortable in addressing, it is made clear to the client that Special Counsel will be needed and that the representation by Special Counsel is based upon his fee agreement, not ours.

If you are concerned over the ability of your attorney to handle the issues with your ex then you should begin searching for a new attorney. You may like your attorney but if your comfort level is not at the top of the spectrum you need to look elsewhere.

I wish I could be more specific but without reading the specific terms of the agreement I cannot (DO NOT post the agreement).