UST Motion to Dismiss and Atty QUIT!

[Harris51698]

We are absolutely in shock. The UST sent a letter to us and basically our atty made multi mistakes on ch 7 forms which lead to significant bills not being applied in debt ratio calculations. Mainly, My almost 700 a mo student loans did not get applied. she doubled child support obligation from 350 to 700 amo, wihc UST caught. Then she put an mo expense of 934, which was actually a garnishment from creditor pre bankruptcy. Those are just a few. Letter from UST was FIFTEEN pages. So, after researching options on here, I sent an email concisely noting the errors and what I wanted fixed as well as, that we wanted to resubmit the correct figures with ch 7 BEFORE auto conversion to 13. If we have to go ch 13, that is one thing but I won't do it because she had made multi errors. SHe wrote me back and said "your retainer is already expended with my filing the ch7 go and find a ch13 atty to move forward with, i will not file anything else on your behalf."

I will list numbers if you feel that it is neccessary for input. I am flabbergasted that she just quit! Our ch 7 case has not been brought to it's conclusion, in fact as I hvae learned from here a UST motion is just meirly part of the process. So now I am most likely going to have to move forward myself as I can not afford another 1500 retainer within the short amt of time i havce to respond to the motion.

where do i strat? any recourse here? Is it legalf or her to simply quit? Can I report this to UST and have continuance? I am so lost, scared and just sick with worry since this came to be. I think my atty knows she messed up because she never even sent the letter to me, even though she said she would via email. we got it form the UST in the snail mail.

Thanks and sorry<
Teressa

[AngelinaCat]

Hello, Teressa, and welcome to the Forum. I am so sorry that you have had this trouble. The first thing I would do if I were you is to go to the nolo.com site and purchase a copy of their guide for filing Chapter7 bankruptcy yourself. You can purchase the download-able edition and save it to your hard drive and print out what you need. Their e-book edition is $24.99, ten dollars cheaper than the print version. Then you will have it as your reference bible.

Then start perusing thorough this forum and read the stickies, and especially the Pro Se Filers board (the do-it-yourselfers):

http://www.bkforum.com/forumdisplay.php?30-Pro-Se-%28Pro-Per%29-Filing

Then, I would file a complaint with your states' Bar Association against your attorney and have her called before them and have to answer for her errors. (She must be the long-lost twin of our worthless attorney).

There are plenty of member here who will be glad to assist you.

[momofthree]

Just wanted to mention that the attorney was correct in leaving out the student loan. Student loans go into forbearance during a ch.13, so the payments are not allowed on your schedules when trying to determine whether or not you have enough DMI to fund a ch.13. Unfortunately, it sounds like with the errors your attorney made, you probably should have been a ch.13 from the get-go and she was just trying to slip you by as a ch.7.

[despritfreya]

Your attorney is wrong. As long as your case is pending, she has an ethical duty to follow through in her representation of you until such time as she files a Motion to Withdraw and the Judge signs an Order granting the Motion. Until then she is the attorney of record in your case.

As an attorney I am appalled by her behavior. Whether the numbers are right or wrong is not the point. The point is that you, the client, have concerns over what was filed. She, as your attorney, has a duty to address those concerns and, if mistakes were made by her, to correct them. If the mistakes are the result of your actions then she may correct them but should be compensated for the additional work. You need to demand a meeting with her and if she refuses then file a bar complaint.

Mistakes aside, you should look at your fee agreement. The one I use specifically excludes handling any adversary or contested matter. This would include an issue over the presumption of abuse. However we usually know going in if there will be a problem and the client has already agreed to any additional representation. The basic fee agreement tells the client that if they want me to handle the matter they can "hire" me to do so and my normal hourly rate will apply. My "flat fee" for a Chapter 7 does not include the additional time and effort it takes to handle contested matters.

I hope all works out for you.

Des.

[tcreegan]

Hi Harris, fellow Coloradoan here!

Did the UST just want corrected information or did they actually file 'presumption of abuse exists' or a motion to dismiss/convert?

I agree w/ previous posts, send a complaint to the bar association and get the NOLO book.

I would definitely contact the UST and let them know your lawyer quit on you.

debt ratio calculations ...someone correct me if I'm wrong, but I don't think there is a debt ratio in a Ch 7...

How are you on the means-test?
What is the monthly income averaging the last 6 months?
What was included in the income side?
What did you have for expenses on the means-test?

Lots of good folks to help you through this, keep posting!

Tom in Colo

[AngelinaCatHub]

On Des' behalf, I have to add my two cents. Our attorney as the Mrs. stated, was none better. In that she never informed us of the process. Being under a major suit at that time, one that caused the final nail in the bk coffin, that was Mrs.'s job loss, we went for a C7. When she informed us that the law suit would be tolled for the bk, we actually and literally, both, broke down and cried. She was aghast with what happened and we had to explain. She said, I thought that was why you came here? We told her no, we got no money, that is why we are here. We had no idea it would stop the suit.

After a no results situation, I finally petitioned the Court as a self proclaimed pro se person divesting myself from the attorney in a motion to go pro se and get rid of her.

It cost her a day of work, the Judge stated that he advised me to forget the motion due to the fact that for all practical reasons, we were finished and that this action would actually prolong our case. Of course we agreed as we did NOT know our progress due to her disinterest.

Here is what it did to her: lost her a days work, brought her to the attention of a UST as he showed, brought her to public ridicule before the Judge, as well as some peers.

So, a year after our four year C7, with AP, we get a letter telling us that our case was closed, ONE YEAR AGO, as if we didn't know.

This is what gives lawyers a bad rap. Des, you are not included and are a welcomed resource here. Thank you. 'Hub

[Harris51698]

Thanks for all the replies and info. I will have to buy the book becasue Ihave until the 15th to "oppose motion to dismiss or willingly convert to ch 13. " according to UST letter.

My problem is that the atty TRIED to SLIP IN so much that this has to be malpractice. She tried to put my student loans in erroneously, doubled my husbands child support payment, added in a granishment as a reg mo bill, on and on....

In my opinion and now looking at the papers with the UST "eyesight" along side her figures, I think she only filed this ch 7 to get the 1500 retainer and that was that. I think she KNEW she was being dishonest against the codes. I think she knew we were not or so borderline that she should have said you may need more as a ch 7 case and this is the cost. She specifically called me and said "you are under the line on mean's test.".....anyhow, doesn't matter right now. although I will deal with that element with the bar assoc later.

ok figures:

married joint
income; spouse: 4205 and 4033
total mo income: 8238
annualized: 98,859 (per UST figures) (atty reported 85660)
monthly income: 7138 and 8238

Deductions: co fam 4
Food, clothing an dother items, 1371 (per UST)
utilities 453
rent 930 (actually 850) UST put the ihgher
local standards transportation: 2 vehicles 472
ownership cost veh 1: 314 my car 250 payment
ownership veh 2: 441 his truck 400 (high interest 22% used vehicle 2006 GMC canyon)
courtordered child support 350 (atty put 700)
education for employment for a physically or mentally challenged child: 1000 (atty entered) **I was on disability up until this past april due to my back. i went back to school while on disability for nursing. The debt was accured while in school and husbands hrs got cut to 30 from 75 wkly. i don't know why she put this in here anyhow.
childcare 600
total expense allowed under IRS per UST 6752

ded of debt payment 182 and 55 for vehicles total of 237
ch 13 admin expenses 6.2% average mo admin edp of ch 13 case 66.00
total expenses for debt payment 303 (per UST)
total of all ded allowed 7236+


current mo income 8238
ded akkowed 7236
monthly disposable income under 707 (atty (303)) UST 1002
60 month disposable income 60119
presumption arises

then on another page it states it states monthly disposable income is 1553.00

total plan payments 931776
ch 13 trustee fees 5777
additional atty fees 1500
available for unsecured debts 85899
unsecured debt 81615 (schedule F)
dividend to unsecured creditors 105.25%

there is no mention of student loans in the projections of ch 13 or ch 7 in these papers.

I am so confused as to what all these numbers mean...

my medical situation is very well pitiful at this point. I have ahd 2 back surgeries fail. they want to fuse it. i won't do it since last surgery I got MRSA and nearly died. Long story short, I fight pain everyday I work but I work. I am off disability and trying. we got credit cards to help while I was in school, then got out during economy crash and didin't work for a couple months. This left us with about 8 credit cards. we had to stop paying on those to feed us. i started working just about eight mos ago. now everything is crashing in on us. I got a garnishment order in June they were taking up to 500 in ONE check. so we filed. This atty told us she would not file us if she didn't think we qualified without pause. then we got a letter of audit, she said status quo they do this all the itme. then she was ifnormed at meeting with UST that she "made several typos and made us look worse than we are" per Trustee. we asked what does that mean? she said nothing, the auditors are his boss so they will see big pic, then presumped abuse, then motion to dismiss and she bailed.

i dont know what do to now.

[Peeps]

Wow. Well, the good news is you're in a place where lots of people with oodles of experience can offer advice.

As far as your attorney's intentions, it's hard to say what was going on. But allow me to just add one thought:
"Never attribute to malice anything adequately explained by incompetence" (or a bad batch of crack)

[Pandora]

Ouch... sorry you're in a hard spot, thats awful. From the income you posted, I dont see how you could've been a Ch. 7 as you are over median and have positive DMI.

The one thing I'm curious about is where are the rest of your expenses?

medical, health insurance, car maintenance, house maintenance, life insurance, recreation, tithing, etc, etc, etc.

Are your utilities $453 a month or are they higher? You should be allowed the actual amount that your bills are unless they're excessive (like cable or sat. premium pkgs) - then the trustee might lower it.

Is that $1000 for education for you or for one of your children? It states for a child, however you wrote that it was for you. ?

The truck payment and interest rate - why wasnt that crammed down and lowered? Does the 910 day rule not apply to you for some reason (it should if you purchased that vehicle in 06) ?

As the others have mentioned your student loans do not count as they can be deferred.

From looking at what you posted...I'd definitely go back over your figures.

[Harris51698]

i do not know what crammed down or 910 day rule is. my atty basically qual'ed us for ch 7 even tho we asked her for a consensus of what was what. what we didn't know or become aware of until now. She ONLY does ch 7 not ch 13, so had she been honest with us we would have never retained her. Here's my thing, how am I to get this motion answered during THANKSGIVING holiday. she tells me to pick up papers today (which I can't I have worked all night and again tonight) and then she is gone untl the 1st. how are we to retain or answer this motion and no atty. How can she just simply lie about numbers, submit and then run.

any advice about my calling UST myself to explain turn of events?

[justbroke]

First let me just say that your attorney certainly has some issues. It reads too much as though the attorney (herself) tried to fudge the numbers in order to get you into a Chapter 7. Unfortunately, looking at your numbers above, it appears that you don't qualify to receive a discharge under Chapter 7 at this time. Unless those numbers that the UST used are rebuttable and you have admissible evidence to prove the UST wrong, this will be a problem.

It reads as though you're an over-the-median income filer with nearly $100K a year in income between you. Your attorney made too many "mistakes" for me to believe that they were actually "mistakes". For your attorney to abandon you at this point is bad. I would be inclined to remind your attorney that they are under a fee agreement. As Des wrote, the litigation may cost you, per the fee agreement, but looking at your numbers, I don't see how you overcome the UST's motion to dismiss. There is a significant amount of disposable monthly income (DMI) to reduce (by over $1,300/month).

Unfortunately, the book, NoLo or any other, is not going to help you with a Motion to Dismiss for Abuse under 11 USC 707(b)(2). The guidebooks help you file, but don't help you defend actions from the UST, Trustee or Creditors. In order to respond to the Motion to Dismiss (the motion) you'd have to respond to each paragraph in the motion and provide evidence (attached exhibits) as to why the UST is incorrect -- by facts and/or by law/precedence. As previously stated, perhaps some other items were left out from your expenses as well, but it's still a big gap. You can always attempt to "rebut" a presumption of abuse or abuse by showing a medical condition, but that type of litigation can cost as well.

I would go back to the attorney and find out what went wrong, and then between your attorney and you, you'll need to determine whether the fight is worth it.

[tobee43]

First let me just say that your attorney certainly has some issues. It reads too much as though the attorney (herself) tried to fudge the numbers in order to get you into a Chapter 7. Unfortunately, looking at your numbers above, it appears that you don't qualify to receive a discharge under Chapter 7 at this time. Unless those numbers that the UST used are rebuttable and you have admissible evidence to prove the UST wrong, this will be a problem.

It reads as though you're an over-the-median income filer with nearly $100K a year in income between you. Your attorney made too many "mistakes" for me to believe that they were actually "mistakes". For your attorney to abandon you at this point is bad. I would be inclined to remind your attorney that they are under a fee agreement. As Des wrote, the litigation may cost you, per the fee agreement, but looking at your numbers, I don't see how you overcome the UST's motion to dismiss. There is a significant amount of disposable monthly income (DMI) to reduce (by over $1,300/month).

Unfortunately, the book, NoLo or any other, is not going to help you with a Motion to Dismiss for Abuse under 11 USC 707(b)(2). The guidebooks help you file, but don't help you defend actions from the UST, Trustee or Creditors. In order to respond to the Motion to Dismiss (the motion) you'd have to respond to each paragraph in the motion and provide evidence (attached exhibits) as to why the UST is incorrect -- by facts and/or by law/precedence. As previously stated, perhaps some other items were left out from your expenses as well, but it's still a big gap. You can always attempt to "rebut" a presumption of abuse or abuse by showing a medical condition, but that type of litigation can cost as well.

I would go back to the attorney and find out what went wrong, and then between your attorney and you, you'll need to determine whether the fight is worth it.

i so agree with your advise jb....no book, nor facing the atty's errors are going to be of much assistance at this point.

it is also clear Harris, that unfortunately the numbers you have posted, i truly agree, with everyone else...they are "off" for the filing of a chapter 7. i would go right back to that atty and have her explain her actions and also attempt to work it out. sometimes, it may be the easiest way to handle the situation...you just may have to face the fact that you will have to file a chapter 13...which is NOT the end of the world..

there are MANY on this board who have successfully gone through and maintain their lives just fine in a chapter 13. and, from what your saying that may be the only way you can go at this point.

best of luck to you!!

[Harris51698]

we did talk to one atty, the day before thanksgiving. She called me back and said to come in so we could get a tentative plan together. well all she said was I need 490.00 to start and since you are already in a mess and filed we need it within 2 days. Then nada. no plan no nada. My husband and I are going to just give up. we don't have the money to pay especially that quick after lossing that 1500 to ch 7 atty. I can't believe she just flat out manipulated us and tried to scam UST with numbers. I am going to call UST monday and tell them what is going on. thanks for the input no other atty's will even return call..... how do we file to get this dismissed without prejudice?

[Pandora]

we did talk to one atty, the day before thanksgiving. She called me back and said to come in so we could get a tentative plan together. well all she said was I need 490.00 to start and since you are already in a mess and filed we need it within 2 days. Then nada. no plan no nada. My husband and I are going to just give up. we don't have the money to pay especially that quick after lossing that 1500 to ch 7 atty. I can't believe she just flat out manipulated us and tried to scam UST with numbers. I am going to call UST monday and tell them what is going on. thanks for the input no other atty's will even return call..... how do we file to get this dismissed without prejudice?

Was this a Ch. 13 attorney you met with? If so, they cant give you a plan until / unless you pay the retainer fee and get all the paperwork done - any remaining fees may be able to be rolled into your plan if the attorney allows. The attorney cant do it for you, its something you have to do and provide to the attorney.

[dumpinmydebt]

I'd advise that attorney that they either need to fix this mess that they created or give you your money back so you can retain a smart attorney. If she truly screwed up that bad, they should incur all costs to fix this. I'd let them know if they keep your money and refuse to work with you that I would be contacting the Bar.

then she was ifnormed at meeting with UST that she "made several typos and made us look worse than we are" per Trustee Though it sounds like the Trustee has already recognized that this woman is a piece, I would most certainly talk to your Trustee, after you speak with this "lawyer."

This doesn't even affect me, but it still ticks me off.