Is withdrawal of atty grounds to move for dismissal and refile?

[medievalmagg]

If you paid an atty (bad one who fouled up your case) and they withdrew after really screwing the pooch, prejudicing you to the point where you couldn't get anyone to represent you, is it reasonable to move for a dismissal and refile?

An appeal is already pending, but chances are you're going to lose, and your house is set for a sheriff's auction before your appeal will be heard. Do you have grounds because of the prejudice of not having an atty to represent you, and you are also disabled with memory loss issues, to refile? Will that automatically reset the stay again?

[RunningMan]

I don't understand how your case could be prejudiced to the point where no other attorneys will represent you. Maybe there is something else wrong with your case that you are not saying. I don't think you need grounds for a dismissal. It sounds like your case has already been dismissed if your house is being auctioned. I am not sure about the rules for refiling, but it seems unlikely they would let you keep refiling indefinately just to extend the stay if the circumstances for your dismissal have not changed. At my 341 hearing the trustee did say he was going to recommend a case (not mine) be dismissed and refiled, so it is possible at least under certain circumstances.

[medievalmagg]

I don't understand how your case could be prejudiced to the point where no other attorneys will represent you. Maybe there is something else wrong with your case that you are not saying. I don't think you need grounds for a dismissal. It sounds like your case has already been dismissed if your house is being auctioned. I am not sure about the rules for refiling, but it seems unlikely they would let you keep refiling indefinately just to extend the stay if the circumstances for your dismissal have not changed. At my 341 hearing the trustee did say he was going to recommend a case (not mine) be dismissed and refiled, so it is possible at least under certain circumstances.

Okay...it's complicated. The case has gone on almost 2 years and there are a lot of issues. It's a friend's case and he has probable early onset Alzheimer's, so there are memory issues with him, but that's not the problem with getting another atty. Basically, it's so far into the case that it's difficult for another atty to take over under the best of circumstances, and in the case of BK, my friend is absolutely flat broke. The alzheimer's has stopped him from being able to continue with previous work, which was self-employment now clearly impossible. All the money he had went to retaining the first lawyer. Not only did she refuse to consult with him, but he appointed a power of attorney and she also refused to communicate that person. She didn't understand the full facts of the previous judgment he had against him, and when the judge made a wrong decision based on a mistaken conclusion, she refused to object, request reconsideration, correct errors or anything when it was a factual error, even when the poa pointed it out. (it denied his homestead exemption and allowed a creditor a secured claim on his house) So, a year later when he tries pro se to correct the mistake, it's too late. Judge says you shouldda done it then. The atty also found out that the original case didn't even have grounds, but failed to mention it... the judge writes, you need to go back to state court for that, and she never brings it up! It's that judgment that's giving the creditors their 'secured' lien wrongfully.

No, the case isn't dismissed, only the stay was lifted. But, as far as he's concerned it's the end. The creditors have spent over $70K defeating this bk case on an original judgment that was only $22K by the time of filing. With their inflated costs and fees and second judgment, they were claiming $45K by the end of the period. Still, spending over $70K to fight it?? He filed a Notice of Appeal for the lifting of the stay, and put in a motion for a new stay pending his appeal. There is a hearing on the motion for stay tomorrow, which was objected to. Being that he gets so confused and upset in court due to Alzheimer's, (it's only early stages mind you, he's not totally out of it or needing a keeper) I'm very worried that they are just going to bulldoze him completely and deny the stay. Then the creditor will immediately move to dismiss. Which I guess, now that I mention it, might accomplish the same thing perhaps? I have no idea anymore... all I know is that it's totally unjust since they never should have gotten the other judgment in the first place. He needs to go back and challenge that, now that he knows he can. It would have been helpful if his atty had let him in on it LAST year. House is set to be sold Feb 3rd... it's going to be hard to file in the other case fast enough to get an injunction on the sheriff's sale. Obviously, I have no belief that the judge will grant the stay. The next step is an emergency motion to the BAP, but then what are the grounds?

[lrprn]

Your friend's power of attorney holder needs to contact his state's bar or association to file a complaint against the lawyer who messed up the case. Here's the list of the lawyer disciplinary agencies by state - http://www.abanet.org/cpr/regulation/directory.pdf

From your desciption, it sound like this lawyer may also have committed ethics violations. Here's how to report a lawyer for ethics violations - http://legal-malpractice.lawyers.com...iolations.html

Of course, we only have your side of this unfortunate situation. However, when your friend's power of attorney holder contacts the agencies, they can assess whether the lawyer involved is at fault and should be censured.

[medievalmagg]

Thanks very much... I do have most of a complaint to the bar prepared. I have copies of every email I sent her, and what was sent back. Abruptly, I got an email that said they would no longer communicate with me that way any longer (I'm the power of atty by the way) and that I would have to call them in the future. I think they belatedly realized that email left a record. The first phone call made, there was a miscommunication. I believe that I am entitled to contact them via email and they cannot dictate otherwise... I don't forget what I want to say in an email, don't get sidetracked by something else that's said, can be detailed yet manage to make it concise, can send it at 3 am if that's when I happen to think about it, and I don't have to keep leaving phone calls that don't get returned. It usually wasn't something urgent that required an immediate response anyway, so I thought an email was more considerate and could be responded to when there was a free moment. So, when I got the email saying no more, I thought it was really unreasonable and also way out of left field. After the first miscommunication I emailed back and told them that; also that they are perfectly free to call me if they want, but I want to be sure that I get everything I need across to them etc and would continue to email.

I did not know that lack of communication was an ethics violation, so thanks very much for that information and the link. My friend's been so busy trying to deal with his case pro se that I've not had time to send the complaint in... we should really move on it I'm sure. Thanks very much again for your helpful information. By the way, the judge miraculously granted a stay, albeit only temporary. However, it gives him a chance!