If I file an emergency petition pro se, can attorney take over after that?

[phoenyx]

On February 20, 2008, I gave my attorney all the information he would need for my personal Chapter 7 petition. I learned everything I could about Chapter 7 as it pertains to me, the petition and schedules, so I would be able to file pro se. I decided early on through an attorney, so I would have his expertise on the case.

Right after I gave him the information last month, he had a family emergency come up and also became quite ill. I am very understanding of his situation, and am not upset with him. I sure understand how family emergencies mess up plans, and how buried you are after being sick for two weeks then lacking energy to work once you are "better."

I am freaking out a bit because there is a HUGE tax difference for me, depending on whether my petition is filed by March 31 or not. It's a very technical reason, so I won't go into details, but I'm positive the tax difference exists and have very specific and clear portions of US Code and Federal Regulations that create it.

I explained my need to have my case filed by March 31, and he had his paralegal bump my case to the front of the pile, and she entered all of my creditors into their system today.

My attorney prepares the rest of the petitions himself, he doesn't want to have his paralegals do that type of work. The earliest appointment I could get with him to go through the rest of my paperwork is on March 31. I already basically filled out the rest of my petition, in the documents I gave him last month, so it should be an easy appointment. He assured me we can get it done and filed electronically the same day, so it's received by the court on March 31.

I really would prefer to meet earlier than March 31, but he doesn't have any other time because he's off from work next week. I'm not sure why.

I am really worried that my attorney is planning on meeting with me to fill out the rest of my petition on the last day that it needs to be filed. I didn't want to be doing this last minute. If anything goes wrong that day, there's no more time to get it filed.



SO... If anything goes wrong that day, I think I need to file an emergency personal Chapter 7 petition myself on March 31. I am going to prepare this now, so if my attorney can't meet with me as planned or if he can't file the petition that day, I can get it in myself. (It makes no difference taxwise to me whether it's a full petition or an emergency petition filed by March 31.)

If I am forced to file an emergency personal Chapter 7 petition myself, would I still be able to have my attorney work on my petition (within the 15 day limit) and represent me through the process? Or, is there any reason that would limit him from being able to do that? I can't think of a reason, but I want to see if anyone else can.

He's a great attorney, and I definately want to have him on my case.

[Flamingo]

I may be wrong but if you file pro se, you cannot bring in an attorney later to take over your matter. It probably would have to be dismissed and refiled. If you are that worried about the situation, call the clerk at the Bankruptcy Court in your district/state and ask your question specifically. Most, if not all, state websites have links to the bankrupty courts in their realm. BK Court websites can be chock full of all the information you need or ever want to know. Many list the entire filing processes.

[phoenyx]

Uggh, that really sucks. Thanks for your reply, I'll ask my district bankruptcy court tomorrow what would happen.

[HHM]

You "can" bring in an attorney, but the real question is whether an attorney will be willing. Most attorney's don't like to jump into a case once it has began.

[FreshLikeADaisy]

Phoenyx, this is just a thought, but given the situation would this atty be willing to allow you to meet with his paralegal *now*, giving her the info right as she enters it, so that you can look things over and file right away? At the very least, you could meet with his paralegal (who is acting as his bk preparer in a very real sense), getting the forms filled out, and then let him look over a copy before filing it -- this way it's all done but the proofreading.

I'm with you, if I had a solid deadline like that I would not be comfortable waiting until *that day* to file. I wish your atty the very best of health, but you are right in the proverbial "what if he gets run over by a bus?" scenario, unfortunately. Good luck!!!

[phoenyx]

Phoenyx, this is just a thought, but given the situation would this atty be willing to allow you to meet with his paralegal *now*, giving her the info right as she enters it, so that you can look things over and file right away? At the very least, you could meet with his paralegal (who is acting as his bk preparer in a very real sense), getting the forms filled out, and then let him look over a copy before filing it -- this way it's all done but the proofreading.

I'm with you, if I had a solid deadline like that I would not be comfortable waiting until *that day* to file. I wish your atty the very best of health, but you are right in the proverbial "what if he gets run over by a bus?" scenario, unfortunately. Good luck!!!

I asked the paralegal earlier today if I could stop by to get a copy of everything she has prepared in advance, which is just the Schedule D (Secured Claims), Schedule E (Unsecured Priority Claims), Schedule F (Unsecured Nonpriority Claims), and the creditor matrix. She said that would be fine.

I have been planning on trying to "stick my head in" to my attorney's office which is beside the paralegal's desk, and again mention my concern about waiting until that last day. I hadn't thought of your suggestion, but I would be comfortable with it, so I will definately mention that to him.


HHM, I am still going to make a call to my bankruptcy district to make sure, but I am glad to hear from you that I might be able to
"bring on" an attorney if he is willing. I'm pretty certain he would be in this exact situation, but I realize it would ultimately be up to him. Hopefully nothing comes up and my meeting with him goes smoothly on March 31, and we get everything filed that day.

I have my emergency petition all filled out and ready to be filed in case of a disaster.

[JRScott]

Most attorney's that take on pro se cases charge more than if you had actually just hired them to begin with.

Assuming he has all the information he should be able to file it on the 31st. I hope all goes well.

[rfassett]

In the "old days" I would be more concerned about this deadline, but since the attorney can electonically file the petition upto midnight, my approach would be to be prepared to file yourself in the event the meeting does not happen or falls apart. Be sure to give yourself enough time to get to the clerk's office. If the meeting does happen, I would make sure the attorney has a way to contact me without fail. In other words, give him your cell number, work number, home number or whatever number that you are going to be at until midnight and tell him to call you as soon as the petition is transmitted. And tell him you want to know where you can contact him up to midnight, in the event that he fails to call you. Let's not forget that the filing does not have to be perfect to be effective, amendments happen all the time.

Best of luck to you!

[FreshLikeADaisy]

Sound advice, Rfassett. You're right about making sure Phoenyx has enough time to get to the bankruptcy clerk's office: Phoenyx's ATTY can file until midnight via ECF (PACER) but if Phoenyx has to go ahead and file her emergency petition pro se, she is limited actual court hours (4 or 5 pm) and submitting her filing in person, on paper.

If neither she nor her atty has filed by the close of the actual clerk's office hours and she has to wait on him to file electronically -- potentially until midnight -- she no longer has the option of filing that emergency petition on the 31st.

So depending on where the courthouse is, if she can't get filed prior to the 31st, she might want to set her own personal deadline that day an hour or two prior to close of actual business hours for the court: either a firm commitment from the atty if she feels comfortable that he will follow through on his word and file by midnight, or go ahead and submit her emergency pro se petition before the court closes. It's a tough call, and I don't know that I would have the guts to wait it out with so much at stake, but I'm also not good with trusting people so there you go.

Phoenyx, you're a woman after my own heart: that you already have an emergency petition done and ready to go *just in case* is impressive as hell to me.

[phoenyx]

OMG, I'm so ... I'll say upset ... since I shouldn't say what I really am on this forum.

I picked up my Schedules E, F, and creditor matrix today. Appointment with my attorney is still scheduled for March 31, can't be earlier.

The things I picked up today are a giant mess. Maybe I'm being too perfectionist, but they totally don't follow the information I gave them, and the research I have done on the internet and in the Nolo book.

I prepared all the fricking documents for them, in the actual format of the bankruptcy petition. All she (the assistant paralegal) had to do was retype what I did, or make corrections if I made a mistake. How does a person screw that up?

There's supposed to be a Schedule D, but there isn't. All the creditors who should be on there were instead thrown on E or F. Creditors who have judgments and recorded judgment liens should be on Schedule D. Taxing authorities who recorded tax liens should be on Schedule D. I showed them these debts on my Schedule D paperwork, AND included the judgments and liens to justify my reasoning. And they still threw them on E or F.

Schedule F is all wrong.

They only listed one address per creditor or collection agency, even though I provided several addresses for some as is generally stated on this forum and in the Nolo book, to make sure proper notification is made. They used several addresses which I've never seen before, and wasn't on the paperwork I gave them. I'm not sure if they're using addresses they have used in the past, but that can't be correct. A large creditor has different addresses for different types off accounts.

They listed some of my debts twice. I think what they did is took the amounts I gave them, listed it, and took the amounts on my credit report, and listed that too. There's $42,000 in additional listed debt because they've listed so much stuff twice.

WTF! It was the assistant paralegal who prepared the paperwork I prepared today, but I'm in an impossible situation now.

I either have to teach this paralegal what she did wrong while the attorney is gone next week, or walk. I don't think there's enough time to wait to see my attorney on March 31 to basically redo these schedules.

I would so walk, if there wasn't a potential business opportunity for me. I am providing a service that is instead of paying a retainer, and could potentially earn me a decent income in the future which would be great. Either way, I'm so glad I haven't put anything down.

I'm so torn, because I still think the attorney is good. I think it's just his help that either did this too fast or doesn't understand it well.


/cry /scream

[Flamingo]

You have a decision to make; stick with this attorney and his outfit or go get another attorney. If you stick with your present attorney and what sounds like his either rushed or incapable help, you had better give her a call Monday morning with your corrected schedules and have her revise them to your satisfaction or I would be on the phone getting another attorney. You do have time to do either. Or you can do it on your own as has been explained to you by other posters. Is this a one attorney outfit or is it a firm? Attorney's in firms have backups if they are on vacation or out ill to take over casework if there are close deadlines or emergencies.

[HHM]

I hate so say it, but some of your frustration is based on your misunderstanding.

Schedule D is for secured claims. You only list debts that were "originally" secured claims, e.g. car loans, mortgages, go on schedule D. Judgements and what not do not. You only list those secured debts that were secured at their inception.

Schedule F: regarding the addresses, you need to discuss this with your attorney, but as part of the NEW law, creditors may designate an address for reciept of BK notices, so your attorney "may" be using that address. But you are correct, if their are collection agencies involved, those addresses should be listed (but it really does not matter whether they are listed seperately).

But, it sounds like there are some mistakes, i.e. listing debts twice (based on using a credit report) and not cross checking, but at the same time, I don't think it is as bad as you think.

[diviaruba]

Oh for heaven's sake, if you are that worried, just file a "skeletal position" on March 31. This consists of :

1) the voluntary petition (Form B1)

2) the Statement of Social Security number (Form B21)

3) The Certificate of Credit Counseling (with the Statement of Compliance Form B1D)

4) The creditor matrix (with the creditor matrix cover sheet)

and

5) The filing fee.

That's it - your petition will be in.The remainder of the required documents, as listed on Form B200, must be filed within 15 days from the date of the filing of the petition, or your case may be subject to dismissal.


Better to do it this way than to be rushed. You'll have the benefit of a few extra days to go over things with your attorney and hash out any things that you feel are in error or that you disagree on.

[phoenyx]

You have a decision to make . . .

I'm definately calling Monday morning. I'm definately not taking the stance that the petition should be filed as I originally wrote it, but anything changed I would like properly explained to me so I know it's right. I think there is a second attorney, but I've never met him. Perhaps I'll need to.

I hate so say it, but some of your frustration is based on your misunderstanding.

Schedule D is for secured claims. You only list debts that were "originally" secured claims, e.g. car loans, mortgages, go on schedule D. Judgements and what not do not. You only list those secured debts that were secured at their inception.

Schedule F: regarding the addresses, you need to discuss this with your attorney, but as part of the NEW law, creditors may designate an address for reciept of BK notices, so your attorney "may" be using that address. But you are correct, if their are collection agencies involved, those addresses should be listed (but it really does not matter whether they are listed seperately).

But, it sounds like there are some mistakes, i.e. listing debts twice (based on using a credit report) and not cross checking, but at the same time, it don't think it is as bad as you think.

At least with me, don't hate to say it! I truly hope that I have misunderstanding some things, that's exactly why I am using a lawyer rather than filing pro se, and why I joined this forum. I recognize experience trumps reading laws and books, and I definately recognize how much experience you have on almost all bankruptcy issues. Anytime I have a misunderstanding, I'm thrilled when someone points it out.

Schedule D Creditor Issue

In the Nolo book, page 155 states: "Schedule D - Creditors Holding Secured Claims ... In this schedule, you list all creditors who hold claims secured by your property. This includes... creditors who have won lawsuits agianst you and recorded judgment liens against your property ... taxing authorities, such as the IRS, that have obtained tax liens against your property."

I have two debts that based on the language in the Nolo book I considered being a Schedule D creditor. (1) I have a personally guaranteed bank loan that they obtained a judgment against me personally on, and filed a judgment lien against my personal property with my county's register of deeds. (2) My State filed a tax lien against me, and filed a tax lien against my personal property with my county's register of deeds.

Perhaps I'm interpreting it wrong, or perhaps the Nolo book is wrong. To me, these two debts are explained in the Nolo book to be Schedule D creditors. Since both debts have liens against any property I now own, and any property I aquire in the future, it makes sense to me that they would now be considered secured creditors.

Schedule F Address Issue

I hadn't heard creditors could designate a single address for the receipt of bankruptcy notices. I will follow up with them on this issue. That being said, there's not a single creditor with two addresses listed, even "small" creditors that I'm not sure would have designated a single address.

I even called all of my creditors to ask what address to use, and included whatever I was told, but I know for a fact each phone representative doesn't necessarily give good advice, so maybe that is how they got some of the addresses.

Oh for heaven's sake, if you are that worried, just file a "skeletal position" on March 31 . . .

Yep, I have an emergency petition completely filled out and ready to go if things fall through otherwise.