Ammendment Dilemna

[InOverHead]

I am so fed up. If filing/having to file was not stressful and damaging enough - the lackluster performance of my attorney have put me beyond any mental and physical state of well being. I am getting gray hairs, my stomach is in knots, i can't sleep and my head is spinning!

Please some of the experts on here tell me how out of the ordinary this is:

My 341 is Aug 30th. The petition was incorrect when filed. It took a few weeks to actually get a copy to verify that fact, but immediately after (the next day) i notified attorney and paralegal. An ammendment was promised. I was Told Aug 10th that the paperwork for me to sign was in the mail.

Time kept ticking and i kept on them about it. Yesterday i finally recieved a copy. An email version (obviously the mailing was blatant LIE).

The ammendment is STILL incorrect!!!

I notified them and they said they are reviewing my revisions and will update and re-send.

Having heard nothing back, today i contacted them. Confused about the hangup. I mean what could be the delay? The incorrect info on my petition was noted and crossed off PRIOR to filing (attorney had promised to remove and change before he filed). Then every single change was clearly and concisely spelled out in an email.

Now i am assume the delay is they have other clients. However, at what point do they drop everything and get my filing correct??

And now, with the 341 so close, how is this late in the game ammendment going to play out with the Trustee??

[frogger]

Document, document, document. If your attorney can not or will not get the thing right, make sure that you take all of your documentation to the 341 meeting. At that point, you can advise the trustee that things are not correct.

Your trustee will not be pleased with your attorney and will probably light a fire under their a$$.

[InOverHead]

Thanks Frogger!

Is it unusual for an ammendment to be file so close to the 341? Is it going to raise any red Flags? Do the Trustee's look at your case prior to the meeting, assuming so, this will cause everything to be double checked, Right? So if somehow i was flying in under the radar...chances are a closer look will happen now.

[justbroke]

Some changes are "minute" and won't raise a flag at all. If the changes are nothing more than minutia, then please don't worry. Minutia would include things such as an address or account number of a creditor, the balance on an account, even a missing account can be minutia in a no-asset case. If it's serious, such as they used the wrong pay advices and incorrectly calculated your gross/net income, then that's not minutia. There are just some things that can "wait" to be corrected. Some attorneys will actually wait until after the 341 Meeting to correct things, since the 341 Meeting sometimes yields more corrections based on the Trustee's feedback.

Having written all that... the attorney's office should have kept you up to date and should have made the revisions prior to filing. There is no sense paying the $26 correction fee for amending (certain) schedules. Hopefully, your attorney doesn't bill you for the additional "hours" to make the corrections since this was brought to his/her attention earlier.

Please relax. So, what are these revisions?

(On a side note... it's not the Panel Trustee that you don't want scrutinizing your paperwork. The Panel Trustee is looking for assets. It's the United States Trustee that scrutinies, or doesn't scrutinize in most cases, your paperwork!)

[InOverHead]

Thanks JustBroke! And i appreciate to info on who exactly i should fret...

The changes not made were:
My Bank account was not listed. I think this was major! I do have two acct's, but only one of them that a car payment goes thru once a month was listed.

The retain/surrender box for my house was incorrect. Thanks to 'Valleyum' i provided exactly what he should check according to what his/her lawyer checked. Actually i am not sure if that is correct or incorrect, as he had other and the statute 'valleyum' listed checked for both my 1st and 2nd. I just questioned if that was correct for my 2nd as i no longer pay them nor have i payed in 8 Months nor do i intend to - so "retain and pay' may not make sense. Initially he had surrender checked for Both. Which befuddled me as i have been consistent from meeting # 1 i wanted to keep the house and continue to pay.

Debtors listed in error. Some duplicates. Some did not even exist (i owe nothing to them) and am 100% certain of that!

That's about it. But they have had so many chances and so much time to get it straight it blows my mind it is still incorrect. And now, another day is about to pass. I feel like i am being penalized intentioanlly for them doing the extra work to make the petition right! Multiple emails and phone calls today with no response!

[justbroke]

My Bank account was not listed. I think this was major! I do have two acct's, but only one of them that a car payment goes thru once a month was listed.

Not major unless there is more than $10 in it at the time of filing.

The retain/surrender box for my house was incorrect. Thanks to 'Valleyum' i provided exactly what he should check according to what his/her lawyer checked. Actually i am not sure if that is correct or incorrect, as he had other and the statute 'valleyum' listed checked for both my 1st and 2nd. I just questioned if that was correct for my 2nd as i no longer pay them nor have i payed in 8 Months nor do i intend to - so "retain and pay' may not make sense. Initially he had surrender checked for Both. Which befuddled me as i have been consistent from meeting # 1 i wanted to keep the house and continue to pay.

Not a real major issue. You can always amend the Statement of Intentions. Additionally, in Florida, there is NO SUCH THING as "Retain and Pay" (based on the landmark 11th Circuit Case of In Re Tanner). You have to list Surrender, Redeem or Reaffirm. Your attorney's strategy is probably to make sure that the UST doesn't complain about extra money since you are discharging the debt.

Debtors listed in error. Some duplicates. Some did not even exist (i owe nothing to them) and am 100% certain of that!

You mean creditors? Duplicates are actually PERFECTLY fine. If you owe nothing to a creditor, you don't need to add them. Additionally, missing creditors is not a huge thing in a no asset case.

I agree though, that they should have used more care. You would always want the most perfect representation of your case when filed.

[InOverHead]

JB - Thank you soooo much for taking the time to explain.

The duplicate creditors (yes, ppl/institutions whom i owe money to) THAT's what i was complaing to the atty about. I mean why is sallie mae listed 3x. I paid off student loans over 4 years ago. One particulary irritating erroneous creditor listed was my VET. I included a paid bill when i gave the atty all my paperwork. He had asked to me back up/verify any misc expense. Everything i gave him was clearly separated and labeled in different piles using binder clips. I noticed the VET bill that was already paid was on the forms when asked to sign, he said he would remove prior to filing etc..

On the bank accounts: is $10 an absolute figure? If so i may be in trouble as i have 2 other bank accounts not listed. They are actually credit unions where i have car loans through but did not list becuase there is never any activity and one has $15 the other $20. Accounts were needed with each CU in order to get the loans.

Last thing - The Florida laws you mentioned. I used the advice from another member on here 'Valleyum" and provided that to my attorney. This was the only real change i noticed on the ammendemnt he sent for approval. He changed from surrender to:

Property will be (check one):
___ Surrendered _X_ Retained

If retaining the property, I intend to (check at least one):
___ Redeem the property
___ Reaffirm the debt
_X_ Other. Explain: Retain and pay (for example, avoid lien using 11 U.S.C. § 522(f)).

Property is (check one):
_X_ Claimed as Exempt ___ Not claimed as exempt

Is that going to cause a problem or should i quickly ask him to change it back. If i do he will then be the one thinking i'm a nutcase, but i would rather get it right and not have any problems.

Thanks for you help JustBroke, or anyone that replies really!

[justbroke]

The duplicate creditors (yes, ppl/institutions whom i owe money to) THAT's what i was complaing to the atty about. I mean why is sallie mae listed 3x. I paid off student loans over 4 years ago. One particulary irritating erroneous creditor listed was my VET. I included a paid bill when i gave the atty all my paperwork. He had asked to me back up/verify any misc expense. Everything i gave him was clearly separated and labeled in different piles using binder clips. I noticed the VET bill that was already paid was on the forms when asked to sign, he said he would remove prior to filing etc..

No one is concerned that a creditor is listed multiple times. In fact, many accounts that have gone to collections, may actually appear several different times with different names on them. I had 6 different AMEX accounts, so I listed them 6 differtent times... all at the same address. Now that I think of it, it was silly, but it didn't hurt anything.

On the bank accounts: is $10 an absolute figure? If so i may be in trouble as i have 2 other bank accounts not listed. They are actually credit unions where i have car loans through but did not list becuase there is never any activity and one has $15 the other $20. Accounts were needed with each CU in order to get the loans.

Actually, I retract part of my statement that a bank account is insignificant. The real deal is that the Trustee "usually" likes to see the Statements for those accounts, more than the balance on the Schedules. The Trustee is trying to find out if you moved a lot of assets (money) around in the months prior to filing.

Last thing - The Florida laws you mentioned. I used the advice from another member on here 'Valleyum" and provided that to my attorney. This was the only real change i noticed on the ammendemnt he sent for approval.

I think the form is filled out as I did. I marked Retain and then "Retain and Pay"... although that is "technically" not the right thing in Florida. No one complained so... so be it. There are some cases where that "Retain and Pay" could draw the ire of the lender/creditor. It's only the small (ankle biting) credit unions and small local banks that seem to care. The larger banks to mind the ride through (retain and pay) for real property. I actually had mine listed as reaffirm but I never reaffirmed -- the bank didn't require that and I changed my mind about doing so. I don't think it's really going to be a problem unless you have a creditor who complains about "retain and pay" in Florida. Unlikely to happen that they would.

Thanks for you help JustBroke, or anyone that replies really!

Just trying to help ease your mind and help explain some things in the process!

Note: I messed up on the Tanner reference. Tanner was about lien stripping and not property retention.

[InOverHead]

You are a BIG help and definitely doing a good job at easing some of the stuff that is going thru my mind; which is sorely needed.

So then, WRT the property retention, is listing it as he did (as "Valleyum" suggested) eliminating me from future financial burden on the loans? That is of course my Goal with the property - i want to continue to live there and pay the 1st Mtg. The house is so underwater that it would take years for the 2nd to even consider paying off the first in order to foreclose, so i would like to remain so long as the cost of owning is about the same as i would pay for renting - but, with the freedom to walk away without any financial consequences as it is already discharged in BK.

So should the 1st be listed as is "retain and pay" and the 2nd the same, or should he 2nd be listed as surrender? I believe the atty or actually it was the paralegal that said it has to be one or the other for both, cant do one thing for the 1st and another for the 2nd. Just checking/asking to get another opinion because i am not sure they know for certain either!

My thought is that in the future i could possibly settle with the 2nd, i would only do so at like 5 cents on the dollar though.

[justbroke]

So then, WRT the property retention, is listing it as he did (as "Valleyum" suggested) eliminating me from future financial burden on the loans?

The only thing that could have made you liable for the loan, was to list your intention as "reaffirm" and actually sign and file a reaffirmation agreement.

So should the 1st be listed as is "retain and pay" and the 2nd the same, or should he 2nd be listed as surrender? I believe the atty or actually it was the paralegal that said it has to be one or the other for both, cant do one thing for the 1st and another for the 2nd. Just checking/asking to get another opinion because i am not sure they know for certain either!

It's all just strategy. Most lenders don't care that you list "retain and pay", but some really small lenders could complain and force you to surrender or reaffirm. (This has actually happened in at least one Middle District of Florida case! The case is In Re Linderman, 09-BK-02087, Middle District of Florida. This was on a "small" bank's motion to compel.) I would not worry though.

My thought is that in the future i could possibly settle with the 2nd, i would only do so at like 5 cents on the dollar though.

This could be a good strategy!

(FYI, the 11th Circuit case is In Re Taylor... not In Re Tanner. Hey, they both started with "Ta"! My memory is going since I'm not in court as often since my case is closed!)

[BKAttyMI]

Wow, sounds like some major errors were made on the part of this attorney. Weren't you posting awhile ago about your lack of faith in this attorney? Didn't some people suggest that you run then? For future reference of anyone with attorney problems, take this as a sign BEFORE the case is filed that you really need better counsel.

As for this case, everything should be ok. It's unfortunate the counsel wasn't competant enough to do this correctly the first time, however, you should have been there to go over all the paperwork when you signed the documents to make sure everything is listed. I take the time with every client to go through every page of the schedules to make sure all items are correctly listed, if your attorney didn't, I think it might be cause for concern for anyone. It's your name you're signing to the paperwork, make sure you know what's being said about YOUR financial affairs and assets.

[InOverHead]

Positively 100% correct. I was warned multiple times in fact to RUN.

Fact remains, im a sucker. Everytime i would get a hold of this guy and voice my concerns he would reassure me that i am worried uneccessarily. that the main thing the trustee's looking for is Money - Which i do not have.

I emailed him again today a recap of everything and asked if i had wronged him in someway to treat my case with such disregard. While i was typing this he called and once again smoothed things over.

Let me ask anyone this: He has now left my 2nd Mortgage completely out. He uses Best Case and said the software allows for it and it can then be corrected if need be/issues arise. If my plan is to potentially settle with them at some point in the future, is what he is doing the best course of action. Or should he just surrender it or should he list it like the 1st "retain and pay" and avoid lien using 522f etc..

[justbroke]

Leave out a 2nd mortgage? This doesn't even make sense to me. Reads to me as if this bankruptcy attorney is "learning on the job". That's not a bad thing... if he's part of a larger firm with a senior attorney reviewing his work. The fact that you can get him to easily change things and for him not to explain thoroughly why it was a particular way at the start... is disarming.

However, much of this may not be critical at all to your overall case.

[kornellred]

Your petition should not have been filed with numerous errors in the first place. You should have had a pre-filing meeting with your attorney and gone over the entire set of documents on a line-by-line basis. When you signed those documents, you were attesting to their accuracy and completeness.

[InOverHead]

I know i should have waited. This whoel thing has just dragged on since i signed up here in Nov and when i finally knew there was no hope and decided to file - at that point i just wanted it done quickly and filed. (which did not amtter anyway as he dragged his before filing). It was also difficult to set up meetings so i thought if i did not sign then it could be another two weeks before he had time.

Anyway, mistake is on me and i am just trying to get out of this whole mess as cleanly as possible. A fresh start is EXACTLY what i need.

Umm...JB. He is actually an older Gentleman. It's his law firm, but it's a little confuisng becuase he is sorta partnered up or maybe sharing a location as they also do debt settlement out of the same office.

WRT the 2nd no longer being listed on "debtors statement of intentions". The amount of my Delinquency with the 2nd (the amount i have not payed since Jan.) is listed along with unsecured creditors. This was actaully one of the revisions i asked to be made as i thought it was a mistake. It was never made, but now with the 2nd not being part of the "statement of intentions" it seems that it's ok and should be listed at least somewhere??

If it's not listed it does not get discharged, correct?