Lawyer says I can't file chpt 7, I think he's wrong...

[johnnyp26]

My attorney just emailed me and said that my wife and I exceed the median income for our family size in our state (family of 4, state of FL). We are about a month into the process as our attorney is overwhelmed and just got around to looking at my pay stubs. Now everything I have seen online seems to say if we are above that median income we can proceed to the second portion of the means test which breaks down our expenses and assuming we have less than $166 a month we would still qualify for a chapter 7. However my attorney says that the second we make more than the median we do no qualify for chapter 7, period.

Part of me thinks there is no way an attorney could be wrong about something like this seeing as he does it every day, but I can't find anything online that backs up what he is saying. Before I even started this process I did somewhat look into all of this and did a means test online that I figured would give me a general idea of where I stand, just to be sure I wasn't wasting my time. The test showed that we had negative income of about $200 a month. The site I used is below.

http://www.legalconsumer.com/bankruptcy/means-test/state.php?st=FL

At this point should I contact another attorney, or is this one correct? I just don't feel like I can trust what he says at this point with how long he has taken with this. And the kicker is the fees went from $2,500 to $3,900.

[StartingOver08]

Contact another attorney - pronto! If he is only looking at your income and not your expenses he is not a good BK attorney IMHO - he sounds like a Mill attorney.

[signal]

StartingOver08is right, that just sounds bad. I mean no doubt, it will require more work on the attorneys part for someone over median, and maybe he deosn't want to explore that. Him making a blanket statement like those over the median cannot file ch7 would be enough to turn me off for sure.

[Walangatik]

Dont let anyone tell u that bologny. Only crooked attorneys tell u that and then try to get u into a chapt 13 because thats how they make money. They dont make money in chapter 7 other than the fee u pay them.

Whatever u do, dont believe such a thing. A few attorneys tried the same thing on me and It didnt work and I filed a 7.

[mhman]

Try at leat 5 attorneys. One of the attorneys I met just pushed me into chapter 13. She was wrong since Chapter 7 was available. Chapter 13 was way more expensive than chapter 7....That's why?

So I met another attorney who told me that chapter 7 is 100% available even though my income is above the state income.

Remember that attorney is just an advisor but you are the one who sign on the petition and take all responsibility.

[leena]

I agree with everyone here and I might add that the DMI max to qualify for Chapter 7 is actually now around $180.00, providing that paying that amount monthly for five years would not pay 25% of your unsecured debt.

My attorney told me that in our district, above mendian filers get so much scrutiny from the local trustee, even before a UST sees anything that his firm does not deal much with above median cases because they simply do not have the time. I think that is honest, rather than just trying to shove people into 13s because it is easier that way and he could make a buck.

LOTS of above median people get 7's. It is just a little more work is all.

[justbroke]

Not to be in defense of the attorney, but you may have other issues causing you to not be qualified to receive a discharge under Chapter 7.

First, there is no connection between being over the median or under the median when it comes to qualifying for a discharge under Chapter 7. An attorney should tell you that you don't qualify because you don't have enough expenses to reduce your disposable income below the $182.50 or $109.00 thresholds. Or, they can just be open and honest and say that they don't like to do over the median Chapter 7 cases. (They can cost more for the attorney to deal with since they get more scrutiny.)

There are plenty of people on this forum, from Florida even, that have received Chapter 7 discharges while being over the median by varying and sometimes huge amounts!

As previously posted by others, please shop around for another attorney who specilizes in Chapter 7s. You may want to ask the attorneys that you consult with, if they are willing and able to handle over-the-median Chapter 7 cases.

[johnnyp26]

I agree with everyone here and I might add that the DMI max to qualify for Chapter 7 is actually now around $180.00, providing that paying that amount monthly for five years would not pay 25% of your unsecured debt.

My attorney told me that in our district, above mendian filers get so much scrutiny from the local trustee, even before a UST sees anything that his firm does not deal much with above median cases because they simply do not have the time. I think that is honest, rather than just trying to shove people into 13s because it is easier that way and he could make a buck.

LOTS of above median people get 7's. It is just a little more work is all.

First off thank you for all of your replies. Everyone seems to for the most part agree that I need another opinion, and that's what I was leaning towards anyway. The attorney was encouraging me to send him a check first thing tomorrow for the extra $1,400 to file the chapter 13, so I think he was in a hurry to reel me in. I did question him over the phone today about the means test, and he simply replied that it's federal law that if I pass over that median income I can't file 7, period. Clearly that isn't the case, and I think the majority of you are right, he doesn't want to get involved with the extra work since the trustee probably will go through our case a lot more thoroughly given our income. If the trustee tells us we have to go chapter 13 so be it, because we are certainly reducing our debts by quite a bit, but that initial means test I took does show us at about $190 deficit a month.

To justbroke, I certainly agree that there are other things that could be factoring into him telling me I have to go 13, but when I called him on it today he should have taken that opportunity to tell me that. Instead he stuck to his story with our income being the ONLY factor. He flat out said our debts have nothing to do with it. My attorney is a 1 man show, and I wanted to think the best of him just being overwhelmed, but clearly he doesn't have our best interest in mind.

I guess I'll be calling around tomorrow for a new attorney. I have a feeling it's going to be an issue getting my money back from my current attorney at this point, but it would be worth it if I am right.

[signal]

I can't believe your lawyer told you that. Ill-advising someone about bankruptcy, especially by misrepresenting the federal law and thus their options, should be actionable in itself! I mean, had you not had this forum, or other information you could be making a less than ideal decision, all because of misguided legal information. Negligence on the attorneys part.......

[BobMango]

I can't believe your attorney talked to you on a Sunday!

[want2save]

The fees quoted for a Chapter 7 is astonishing. I guess I used a "mill" lawyer, as BK is all he does. BUT...his fee was $1,000.00 and he saved me $500. each on the two vehicles I repurchased from the Trustee, giving me excellent advice as to what to offer, $1,000 less than I planned. I also paid him the $299 filing fee in addition to the $1,000. He was astonished that I had not talked to him in person or on the phone, just filled out his online questionaire . So, he did not charge extra for working with the Trustee on my vehicles. My emails were always answered within 24 hours.

My 341 and discharge went without a hitch and I was way over $100 k in unsecured debt. I kept my home as the exemption and costs of sale exceeded the equity. Since I am an asset case, I still await closing.

There are some fair lawyers out there.....keep looking!!!!!

[pcn]

Keep looking. We had one atty tell us that we could lien strip in a ch7... There are good and bad out there, just like any profession.

[OhioFiler]

Rather than starting to lawyer shop why don't you sit down with the attorney and see what you can work out? As an informed consumer he may be willing to listen to your viewpoint more than he might listen to an uninformed client. I'm thinking of the investment you've already made with him. I'd hate to see you throw that money away.

[aljohnson007]

If you have done your research and know the facts, keep looking for the right attorney. I filed pro se because three attorneys told me I couldn't exempt assets under Tenancy by Entirety and they were all wrong.

[aces67]

I would get a second opinion also. That's not right.