Messed up ch 13 case

[kaygee]

I need some advise about what to do with my atty and his handling of my case. I could go into all the details but make it short to say that I feel(can demonstrate) that he has not properly represented me on my case and now has my money(being self employed, if I mess someone's job up, I would have to fix it for free or pay someone else to do that). I have mentioned this before in a post but now I think he has demonstrated that he has been incompetent regarding my case, the proceedings, being prepared in court, and telling me to show up for the confirmation hearing when after having done so, I absolutely did not(by the way he didn't show). Now, yesterday I get a notice from trustee of pending dismissal saying that I have not made the required pymnts. Yet, I am current on all pymnts agreed to at the start(I still have initial notice from trustee and have never received anything else in writing from her). I'm thinking now that there may be an issue with the trustee too. She is demanding that I make a lump sum pymnt soon to make up the difference or my case will be dismissed. She has given me a chance to object at a hearing next month but what can I do other than make that lump sum pymnt that I cannot come up with( I am self-employed and have no work now) and cannot borrow either???

[newbie2]

I've gone through your last few posts, and even though things are not quite clear the issue of a possible dismissal remains. What should you do? Don't call your attorney except to make an appointment to sit down face to face and go over everything. You converted from a Chapter 7 to a Chapter 13 it appears because of an asset you couldn't keep in a Chapter 7. You are self employed, with no income right now and this is a recipe for disaster. Sit down face to face, that is the best way to get answers from your attorney. It sounds like you may have to convert back to a 7 and give up that asset in order to get a true fresh start.

[kaygee]

The problem I have going back to a ch 7 is the means test. My wife makes good money,which my lawyer should have seen on the pre-qualify form I filed out with him, but has her own cc debts( she did not file) Yet, he set it up as a 7 for me and then it got rejected by court(which he should have seen ahead of time but informed me otherwise). The only way I can see a 7 happening is if I get divorced and I'm not wishing that to happen.

[justbroke]

You really need to sit down and speak with your attorney. I'm sure your wife is actually listed on the forms but her income was "adjusted" since she pays her own bills. However, there may be confusion over just what the contributions were and what the UST believed that you weren't qualified due to the "marital adjustment" (where your wife's income was reduced by her specific debt payments).

In any case, this can only be resolved until you both sit down and get to an understanding. I have no clue as to why you believe you should have been paying one amount -- in your Chapter 13 -- yet the Trustee was expecting a different one. Through your attorney, you should be able to get back on track with the Trustee through an "installment" plan to payback your plan arrears.

There is certainly a communication issue and that needs to be fixed. Don't settle for a phone call. Go sit in the attorney's office until they show up.

[mountanddo]

What does it show you owe for your monthly payments on 13datacenter?

[kaygee]

Well, what I would like to know is if the atty can be held responsible by the court for not doing his job? Or is this one profession where you can screw up and still charge people more money and not have to worry about fixing your mistakes?

[justbroke]

Well, what I would like to know is if the atty can be held responsible by the court for not doing his job? Or is this one profession where you can screw up and still charge people more money and not have to worry about fixing your mistakes?

It's tough. An attorney is paid based on the fees that they "earn". The fact that you didn't qualify for a Chapter 7, is not a reason to "disgorge" the attorneys fees. Likewise, your attorney probably "earned" his/her fees getting you through confirmation in your Chapter 13. Remember, that most of the work in a Chapter 13 is getting your petition and plan done and then attending the 341 meeting and confirmation hearing. The attorney would have earned most of his/her fees as of the time of filing in a Chapter 13 (non-emergency filing).

Now, you could seek a professional review and talk with the Bar Association for your State. They could review the attorneys conduct and decide what the appropriate -- if any -- punishment should be. That may include returning fees, but it's probably not likely.

How attorneys earn fees is not how people usually thing they are earned. That are not paid for an outcome. They are paid for "representation"; in many cases, the outcome is not as expected. In those cases, where the outcome doesn't meet what was expected, many clients get upset and want money back. The court won't even entertain these actions.

Was your attorney not doing his/her job? I don't know. How much did you pay them?

Did your attorney not represent your properly? I don't know. Did they show up for court and the hearings when they were scheduled?

It's tough to be in the position where your expectations of a particular outcome don't meet the results. I am one of the first people, on this forum, to tell posters to seek disgorgement of fees, but those cases are usually clear as to what happened.

In many Districts, attendance at the confirmation hearing is entirely procedural and it's usually JUST the Trustee and the Judge and maybe some creditor attorneys. I have sat in on several where the debtor(s) and debtor(s) attorney were not present and confirmation is still entered! The only time you need to show up at confirmation is if there is an evidentiary hearing that needs to close out some items.

I just haven't read where your attorney did anything where his/her fee could be disgorged or that they were wrong.

Even in self-employment cases, your earned work can't be disgorged. It really depends on what's in your contract and your services agreement is what you need to look at. That services (fee) agreement should spell out exactly what you get for the money that you are spending. This would be the same in self-employment cases or contract cases. Generally, lawyers are very careful about what's in a fee agreement and what costs more money.

How much did you pay and what did your fee agreement read? Are you interested in filing a complaint with the Bar Association?

[kaygee]

Well, I paid 1500 for the ch 13 part and that is scheduled into the pymnts. Shouldn't the trustee have sent me a notice of confirmation and the new plan pymnt amount by mail like she did in the beginning with the initial pymnt that states $300 due every month. And what I don't understand too is that she is maintaining that the pymnt was $500 from the beginning and yet in court she said the current pymnt is $300 and was I sure I could afford that. Should I contact her directly and ask her about that or bring it up with atty first?

[mountanddo]

Before I even attended my 341 my information was on 13datacenter and stated my monthly payment. I printed a copy of it along with a list of who made claims and my check ledger. If you have something that she mailed you that says $300 and you say you didn't get another letter revising that amount to $500 either ask them to re-send it or ask your attorney for documentation that they let the attorney know. Then I would go from there. There must of been something mailed to you changing your payment from $300 to $500. Are you sure you didn't get anything?

[kaygee]

I never received anything from her except that initial letter. In Oct though the atty asked me if I could do $500. I balked at that amount questioning the valuation of a travel trailer in my plan(only secured asset). Atty never got back to me about any negotiations he may have had with creditor atty. I also never was informed that $500 was a done deal. Trustee sent atty a notice of new plan but it was only about a change in our mortgage pymnt due to escrow increase.

[justbroke]

If it is true that you only have documentation for $300, you could present evidence at the hearing (Motion to Dismiss hearing) indicating otherwise. However, I wouldn't wait until then. I would address this with the Trustee immediately. If you really want to stay in plan, then you and your attorney really need to sit down face to face and discuss this and see where you are. You need to come up with a plan on how you'll address the Trustee; be it argue the $300 in court or agree to a forbearance and/or an installment plan to come current.

If an escrow increase came in and was $200, then that would explain the additional amount. The Trustee isn't required to go back through plan modification for "escrow" changes.

I can tell you that $1,500 is not a large amount for a Chapter 13. You may have received limited representation due to the amount. In my District, it is common to pay $2,500 "in plan" and at least $1,500 to $3,500 outside the plan for a typical Chapter 13!

[mountanddo]

On December 5th you posted that you knew that your plan payment went from $300 to $500. You must of gotten some notice that this happened. You've known about this for a month and a half. Why haven't you done anything about this sooner?

http://www.bkforum.com/showthread.php?74437-Is-my-lawyer-an-idiot&p=551679#post551679

[kaygee]

OK thanks, I think I will send trustee a note to that effect along with a copy of her original letter to me and then sit down with atty. You're probably right. I am just small fish. He's making a lot more elsewhere. I appreciate the advise from all, especially the data center link.

[kaygee]

What I was whining about was a proposed increase that I objected to...but that's a moot point now that I have learned that the trustee has adjusted my plan so that now she wants $1150/mo. So from just being able to afford 300( considering that maybe 500 could be done if I drop my health insur) to now $1150. There is now way we can afford that pymnt. I would have been better off not filing BK and trying to work some plan out with cc companies. I think she has me paying back every penny due. I thought BK was supposed to provide relief. This is a joke.

[mountanddo]

It sounds like you have a big mess on your hands and a sit down with your attorney is the first thing you should do. I guess I don't understand why your payments keep getting bumped up since you say you have no income. How were you planning on paying the initial $300 if you didn't have any income. How did your plan get approved if you couldn't show that you had a steady stream of income? It just doesn't make sense that you don't know the reason why your payment went from $300 to $500 to now $1150. You must have some idea.