Wage order and trustee problems

[taco]

I have been reading and learning on this forum for the past two years. I finally have a question I can't find searching any old threads.

Quick History:

Filed Chapter 13, Feb. 2010 - 100% payback to unsecured; payment made to trustee by wage order
July 2011 - Filed Plan Modification due to changes in income - down to 30% to unsecured
August 2011 - Local BK court confirmed the modified plan after no objections made during objection period

To this day, the wage order taken out of my DW paycheck has not changed. Repeated phone calls to attorney throughout these months, he assures that he is looking into it and communicating with trustee to get wage order reduced.

Spoke with attorney this morning, states that he is in continued communication with trustee, trustee is moving offices right now so things are a little mixed up. Trustee's representative says that their numbers guy hasn't really had a chance to crunch the numbers yet on modified plan and that is why the wage order has not changed.

Attoney now ways he will file a new motion to modify, and hopefully this one will be approved by the trustee.

I am at a loss, confused, and frustrated. The orignal motion to modify was proposed, time went by and no objections so court issued confirmation and approval of modification of plan in August 2011. How can the trustee's office continue to ignore the modified plan's new payments?

The difference in payments is $340 per month. Living in on a budget, that amount of money is a huge difference.

[HHM]

Why not just fax the confirmed plan to your payroll department. The confirmation "order" is the court order upon which the plan payment is designated. I wouldn't think you would need anything further from the trustee.

I don't have any direct experience with wage order chapter 13's, but it would seem that the confirmation order would also include the wage order (keep in mind, the order is usually prepared by your attorney based on the judges rules).

[taco]

Thanks for the response.

I have previously contacted the payroll department, but they said they needed the new amount from the trustee.

Based on what you said, I looked in PACER and found the original wage order issued by the court. It makes total sense that my attorney should have prepared a new order to submit to the court to be issued.

On the original wage deduction order it says, " The foregoing monthly deduction shall continue until such time as the employer receives an Order from this Court releasing the wages of the Debtor(s)."

I am due to speak with the attorney again Wednesday afteroon, so I will just ask him to submit the new order to be issued by the court.

[HHM]

Of course, now your in the position of having to redo something, but in general, payroll departments are required to follow court orders, so in that sense, this situation seems like it could have been handled without any interaction with the trustee by the attorney submitting both the confirmation order and updated wage order.

[taco]

Sigh...............

Just got off phone with attorney. He still has not spoken with trustee. According to attorney, in this district the trustee is the one to submit ammended wage order.

Attorney asked that I call him back tomorrow to see if he has made any progress with getting information from the trustee's office.

[justbroke]

This is pathetic.

While it may be policy for the Trustee to "write" the Order and submit it to the court, your attorney could always Motion the Court for an Entry of Order to Modify Wage Order. Serve it on the Trustee, and then wait for the judge to rule. (This can be done in my District using negative noticing -- no hearing -- or with a joint stipulated order granting the motion.)

How I know this? I had the a similar problem and my employer would only stop or modify the Wage Deduction with an Order from the court. Even though the Order read that the Trustee could have it stopped/modified without an Order. The Trustee would not write motion for a new order so I had to do it.

(ETA) And let me add that it was almost $13K of more deductions before I got the thing stopped! I had asked the Trustee to stop the wage deduction and it took, literally, 6 weeks before they told me that I should Motion the court to Revoke the Wage Deduction Order.

[HHM]

This is pathetic.

While it may be policy for the Trustee to "write" the Order and submit it to the court, your attorney could always Motion the Court for an Entry of Order to Modify Wage Order. Serve it on the Trustee, and then wait for the judge to rule. (This can be done in my District using negative noticing -- no hearing -- or with a joint stipulated order granting the motion.)

How I know this? I had the a similar problem and my employer would only stop or modify the Wage Deduction with an Order from the court. Even though the Order read that the Trustee could have it stopped/modified without an Order. The Trustee would not write motion for a new order so I had to do it.

I concur...it doesn't matter what the "standard practice" is in the area...at its core, all a Motion is is a request for the court to take some action. You can submit a Motion for anything, the judge will either grant it or deny it. Justbroke has the best approach...the attorney needs to file the Motion, serve the trustee. At least that way it puts a clock on the issue and it WILL GET Resolved, instead of this stupid back and forth with the trustee.

[df04527]

I can't help but comment why your attorney desn't know he can do what is being proposed. Ridiculous

[keepsmiling]

I would like to think that when it finally gets submitted, it will be RETROACTIVE.
Good luck OP. It just sucks that this is going on for almost a year. Frankly it smacks of malpractice to me.

[taco]

Grrrrrrrr. Update.

Called attorney's office, spoke with receptionist who asked me to call back in 30 minutes as attorney was in meeting. Although I called at the time (3:30) the attorney asked me to call when I spoke with him last. I called back, attorney not available left message with receptionist. Call never returned. So at close of business after call not returned I sent the following e-mail:

"I left a message this afternoon at the office when I called concerning the wage order change for the plan modification that was approved in August. My wife and I really need to resolve this situation.

Please refer to the following timeline:

As you may remember I first saw you about the plan modification in December of 2010.
The modified plan was not submitted to the court until July of 2011 and approved in August of 2011.
June 2012 still waiting on wage order amount to change. Payment to the trustee is taken by a wage order which is still at the original plan amount.

If you do not have any confirmation from the trustee that the wage order amount accepted by the trustee has been changed, I ask that you please motion the court for an entry of order to modify wage order.

At least this will give us a court document to take to the employer to get the wage order amount changed."


I guess my day tomorrow will be spent down at his office with a good book until I can speak with him face to face.

[LadyInTheRed]

Good letter. Because you sent it at close of business, you may want to wait until Monday to sit in his office. He might respond tomorrow and save you a trip.

[keepsmiling]

I think you are being too nice.
While you are waiting, maybe try HHM's advice again? Maybe a different grunt will see it this time.

[taco]

UPDATE:

After reading another member's post about being upset with information from his attorney, it reminded me of my post and figured I would give an update...

Sorry for the long post.

As of writing this, the wage order is still at old amount and unchanged.

After last post, I went down to attorney's office to talk to him. I get same story of Trustee moving offices and he will continue dealing with the Trustee. The words "Entry of Order to Modify Wage Order" seemed foreign to him. I guess they don't do that in this district (please note the sarcasm)

After getting nowhere with my attorney, I finally e-mailed the two attorneys whose names are on the practice. Several days later, I was then able to go and speak with the managing partner that replied to my e-mail. I assume he managed the office (multiple offices for firm) that we had been dealing with. In our meeting he stated that he was going to get to the bottom of our case and figure out what the problem was. At one point he said that he was trying to figure out if the Trustee was just ignoring the new plan or if there is something else. I honestly felt he genuinely wanted to help, but at the same time did not want to throw the Trustee or attorney under the bus without having a full grasp of the situation.

I met with him on or about June 22, so I knew there would be no chance of the wage order deduction being changed for the next pay period. DW gets paid once a month, last working day of the month. Usually payroll department has checks cut by then.

I talk to my attorney of record and he says he is going to go through and file a new motion to modify plan. His story is the trustee did not change the wage order because the figures did not work out due to the income amount on the modified plan. When my attorney filed the modified plan back in July of last year, he did not put our new reduced income on the form, he had our original income from when we filed in Feb 2010. I even e-mailed my attorney last July (PACER addict) when he filed modified plan that he filed the wrong figures. I talked to him and he said he talked to trustee's office and everything was OK.

Of course the trustee never followed the new payment of the modified plan.

Needless to say, I at this point no longer trust anything this attorney tells me. He wanted two months of pay stubs to have when negotiating and dealing with the trustee and filing the new modified plan. I take the documents down to the office, and he tells me he will be coming in on a Sunday to work on our case and will get it filed. I actually get an unsolicited phone call from attorney several days later stating that he was filing everything and he had already talked with trustee and everything was copacetic.

Problems with Internet service provider, I finally get service back today (No, do not have a smart phone, cable company had to put a new line into the house). I look in PACER and find the new modified plan. Lo and Behold, the attorney still had the OLD INCOME AMOUNT on the form. He did it AGAIN. Their office was closed by the time I found this. I fired off an e-mail to attorney and partner I spoke with before.

I will be at firm's office on Monday morning. I don't know if I can, but I will demand that a new attorney in the firm take over anything else in my Chapter 13 case.
From what I have read on here, it is a real big deal to try and change attorneys in the middle of a 13, but as in the last e-mail is sent to the attorney, "This is past the point of ridiculous."

[justbroke]

If the attorney is a part of a larger firm's bankruptcy division, you can certainly ask to have a different attorney assigned. As you did before, I would go to the Managing Partner's office. You may want to mention "bar association" and "complaint" while you are there. While I am not privy to your documents and plan -- and I don't want to be -- it is either a misunderstanding on the amount by your attorney and you, or there is another error; the latter being inexcusable.

If I were unemployed or otherwise bored, I might let the Managing Partner know that you will be in the office everyday until the problem is corrected.

[taco]

What is sad is, on the document filed in Pacer this July, you can actually tell where "white out" was used on the old modified plan and the new information was written in. I guess he forgot to white out the current monthly income and place the new amount.