Attorney Issue! Pro Se Motion To Dismiss Without Prejudice

[pgranere]

I think i just made a really big freaking mistake.... and i need help... My attorney hasn't returned my phone calls, hasn't answered my questions, hasn't made modifications to my schedules, that were discussed at the 341 and he hasn't done what he has promised that he would do....

I sent several e-mails to him and his paralegal and the only thing the paralegal would say was that she would pass the message along, never heard back. I have found other legal counsel but she wont take the case over until i file a motion to dismiss because the case is such a mess at this point...

But i think i went about it the wrong way... *kicks himself* I wish i would have found this forum sooner and ultimately what i'm hoping for is someone to tell me i have a shot of getting this thing dismissed without prejudice.

I filed a motion on 11/04/2009 see http://www.granere.com/downloads

Pro Se Motion To Dismiss Without Prejudice

I also filed a Memorandum in Support of motion to dismiss without prejudice. also located at http://www.granere.com/downloads

*sorry if broke a rule in putting in links??* *asks for forgiveness* I list all the problems and everything that has gone wrong in the memorandum, once i filed the motion my attorney FINALLY e-mailed me and said that i'm only hurting myself because no matter what if i am successfull i have to wait 180days....

He said there was no way around the 180days... am i hit for 180days?? anyone know if judges have the discression to dismiss without prejudice or by statute do they have to dismiss it with prejudice.

Any help would be great.

[HHM]

Well, I think you made a mistake filing the motion. BK's are essentially automatic, I don't see any reason why your case should be dismissed based on the information you provided.

[mike258]

Why would you try to dismiss your case? Your report of no distribution was filed by your trustee on 10/6/09 and your 60 days are up on 11/30/09.

[AngelinaCatHub]

You can file an amended motion to go pro se and continue your bk. Do this right away before your motion is made an order.

We stupidly attempted to fire our lawyer too. We simply filed a motion to vacate our counsel and go pro se. It was stupid in that all was through except the waiting. HOWEVER, the Judge is more likely to call a hearing and your old lawyer MUST attend. At that time you can make a verbal correction if you wish.

All we accomplished was a wasted day of the lawyers, and our own and the Courts time. The Judge was cool with it though and stated he would hope that we wished to change our minds as the case was near completion. We agreed with the Judge and he denied the motion and all was well. The lawyer wasn't too happy though. It did get her attention. 'Hub

[AngelinaCatHub]

Also, your new lawyer is right. She cannot just move in until the other lawyer is vacated. Then she sends a notice of appearance to the Court announcing she is your counsel. 'Hub

[pgranere]

Why would you try to dismiss your case? Your report of no distribution was filed by your trustee on 10/6/09 and your 60 days are up on 11/30/09.

Mike, the situation is complicated, there is a vehicle involved see http://www.granere.com memorandum in support... My main concern is the bankruptcy, but the people have possession of the vehicle claim there is a lein on the car by utah statute "repairmans lein" but the title is free and clear.., my attorney hasn't made the modifications to the supplemented records in regards to that, and other things he needs to add, im fairly frustrated that they haven't been done and he hasn't contacted me up until now.

He hasn't put in the amount in regards to what i owe the shop for the car modification/storage fee's.... there is a big issue here, we want the car back from the shop because we feel the title is free and clear and it's value isn't very much because it's not working, but it's a car that would be like getting rid of a 66 mustang etc, it's has potential but not right now.. a few years maybe..

My point being, i don't want this bankruptcy to go through, and not have that paperwork right, and have the bankruptcy discharged and then find out that im stuck with $15,000 in storage fee's and repair costs because they weren't listed in the bankruptcy? Regardless of if i get the car back or not... I want that included in there.

My attorney has failed to respond to my e-mails, phone calls etc up until i filed that motion.

I can file a motion to dismiss/vacate my motion i'm sure or the judge could simply deny the motion and then i would have to make the modifications myself, thats fine as well... But i'm not proficent with these proceedings i guess i could do them myself but the issue here is the shop is now defunt out of business they still hold personal possession of the vehicle in their personal garage (former owner) and we have asked him numbers of times to tell us or send us proof of what I owe and hasn't done it...

I'm lost... call me stupid make fun of me or whatever... but i'm upset with the attorney for not doing his job and i'm willing to pay for an attorney but she or any other attorney can't seem to give me advice without him being fired... i don't know what to do..

I admit i need help.. but ok what's my next step... how do i unwind this how do i make the ammendments... is there anyone here willing to hold my hand through this... i'm frustrated.. and i don't want to be anymore up **** creek than i already am.

[mike258]

No one is making fun of you or calling you stupid. We are all here for the same reason...

I wish I could give you advice, but I dont know what you should do.

[pgranere]

neither do i



Other counsel has told me that they wouldn't take the case because everything is such a mess, but they would take it over from scratch.
I felt i had no choice but to file this motion because i don't know what i'm doing. I can write motions, but don't understand the laws and the time frames etc.

[awayalways]

OP I dont know the answer either but I think that most courts will let you change your own motion anytime before the court makes a ruling on it. And because you own the vehicle, you maybe able to just pick it up without the owner even getting involved. The lein is another issue though.

[pgranere]

awayalways, thanks for your response, I have received several responses already from the attorney at question here today alone, it looks as if he is going to make the changes and has set a time for 7:00pm tonight to call and discuss how to unwind my motion. He explained the car situation to me in depth and it is a separate issue, in the state of utah there is something called a repairman's lien, (no paperwork was ever filed no notice was ever given of a lien) they claim by law it's statutory and no notice need be given, however, the business like i said is defunct, can a defunct business make claim to a lien even after the business is defunt? That is why they refuse to give the car back, they claim they have secured interest in the vehicle (were it relates to the bk) and therefor they don't have to give the car back.

Right now it looks like the attorney has gotten off his feet and wants to make good and get this done with... i'm cautious however.

he claims his paralegal will make the changes today to the record... He also states the the fact we served notice upon the shop the car was at, that the debt is canceled because they didn't object. In his e-mail he also states he's made numerous inquires abotu the accounting on the vehicle without response.

just an update for everyone.. it's a confusing case. He suggests i take it to state court after im done to obtain the car back.

[awayalways]

OP Im sure a defunct business can file a lien but I "think" the law may be on your side concerning your vehicle. It is a separate matter from your BK filing.

I had an experience once where a builder put a lien on one of my homes and then changed the locks on me. So I called the police and when they arrived, they told the builder to remove the locks, that it was my house and they had no right to possession. They told the builder that he would have to litigate this matter in court.

Hope it all works out for you guys. aa

[pgranere]

Thanks for your reply, TG i found this forum.... talk about a total bookmark!

[aljohnson007]

I thought bk rules did not allow one to switch from represented to pro se or visa versa. I beileive I read this in local rules for MDFL. Hope you can work this out with the attorney.

[HHM]

You may have a problem with the car that the bankruptcy cannot solve. These repairman liens are a super-priority lien, in most states, they even supercede a car lenders lien and they are created "automatically". This is more an issue with state law than with bankruptcy law. I don't know specifically how Utah's repairman lien's work, but you will want to look that up. But the old adage is true, possession is 9/10's the law, they have the car and they, apparently, have the right to keep the car until their debt is satisfied.

Now, your petition should reflect the debt owed to the repair shop, but the amount of debt, in a chapter 7, is immaterial. Thus, you will discharge your pesonal liability to that debt, but I am afraid they can probably keep car. What you probably need to do (or what your attorney should have done) is file a Motion to Determien Secured Status (this would force the repairshop into court, if they didn't respond, then you could get a court order to turnover the car), if the lien is valide then file a Motion to Value the Lien. A security interest is only as valuable as the current market value of the item securing the loan. So, if the car is worth only $5,000, but you owe them $15,000, you would still be responsible to PAY them $5,000. In this context, you probably could have done this with a redemption loan, unless the vehicle was too old.

Bottomline, short of a defect in the repairman's lien (state law), it almost impossible to have a defect in this type of lien unless no work has been done or if the state does have some sort of filing requirement; the repair shop has a right to the vehicle and you, minimually, would have to pay them the value of the vehicle to remove the lien. Sorry.

Also, I don't think dismissing your BK is the best strategic move, once the case is dismissed, the automatic stay is lifted. That will allow the repairshop to sell the car. Once the car is sold, it is gone, there is NO WAY to get it back.

[pgranere]

Thanks for rseponding i found your information very usfull, as usual i got two e-mails both emails stating he would call me at 9am in the morning then he sent me an e-mail stating that he wouldn't be able to call me and that he would call me at 7pm... neither of those he did... now im just upset period...

I think what i'm going to do is file an other motion to withdraw my motion to dismiss. As well as file a motion to remove my attorney, I think from that point i will file the motion like you said to determine if it is a secured debt or not.

My attorney told me on the car issue that this business is defunt and he held on to the car in his personal garage a guy who has nothing to do with the business. And the attorney said that he would have a hard time explaining that why after 3 years he hadn't sold the car or filed the paperwork to be able to sell it. The business *repairshop* has been out of business for 3 years. I have also been gone for 3 years well 2 1/2...


The entire issue was to determine if the car was really secured or unsecured my attorney has stated that he has on numerous occasions tried to contact the other attorney *the guy who has the car* to get an "accounting" of the vehicle and the debt thats owed, and he hasn't responded at all...


it's complicated.