Roll of a paralegal?

[Jf24]

What is the roll of a paralegal? Confused now.

I want to file soon and don't know if should trust what paralegal says, demand to sit down with atty and go over options or find another atty.

A recap of situation.
Married but filing on my own. 4 months behind on first mort, 5 months behind on second mort. No way to catch up. First is underwater. Would like to do ch13 to strip second and cc debt.

Been sending attys office updates on everything including mortgage statements for 1st and 2nd showing I am behind and what I owe, they have the appraisal that was done showing 1st is under water.

Talked to paralegal the other day and she says I qualify for a ch7, needs a few things and I can file. For one thing I don't see how I qualify for a 7, I did the means test on line and followed all instructions and show I would pay
about $250 a month in a ch 13. Did not include amount of 2nd mortgage payment in means test. I am no expert but believe I did it right.

I told her I want to do a 13 to strip the second mortgage. She puts me on hold for 5 minutes, comes back and says "oh yea, you are underwater on the first" Shouldn't she have known this?

She then told me to get current on the mortgages (impossible) do a ch7 then do a ch 13 to strip the 2nd. I'm confused now.

By doing a 13 I would rather pay $250 a month for 5 years instead of paying $550 a month on the 2nd for another 15 years.

[justbroke]

Simply put, it sounds as though you are ready for a sitdown with the attorney.

The role of the paralegal in a law office is to assist the attorneys with the preparation of cases and legal papers. They do a good amount of the "data entry" in the bankruptcy case. They are usually responsible for collecting and entering all the case data into the system that generates the paperwork -- known as the petition. They are not attorneys and generally avoid making any legal determinations. Everything must be signed off by both the attorney and you!

So, I think you're just a little confused about the process. Hopefully the "data collection" aspect of your case will be completely shortly and you'll have your face-to-face with your attorney. At that point, make sure s/he explains everything to you so that you understand. It is then that the attorney may talk to you about the benefits of one chapter versus the other... and then the so-called Chapter 20, which was the last thing you posted about.

A Chapter 20 can be the best of both worlds if it works in your District. This is where you file a Chapter 7 first to get rid of all dischargeable debt. You then, right after discharge of the Chapter 7, file a Chapter 13 to strip the second.

[LadyInTheRed]

A paralegal works under the supervision of an attorney. She should not give legal advice except to convey the advice of the attorney. Whether to file a Chap 7 or 13 is legal advice. She may have the knowledge and experience to know what is the best option for you. Often, experienced paralegals train new attorneys. But, regardless of how sure she is with her advice, she should not give it without clearing it with her supervising attorney.

It's possible that when she put you on hold, she went to have a quick check with your attorney. It is possible she checked your file to refresh her memory of what the attorney has already said/decided. It is also possible she is giving you advice that she shouldn't be. A good paralegal will make sure she is getting adequate supervision to avoid the unauthorized practice of law. Because you are confused about what this paralegal is telling you, you should talk directly to the attorney to go over your case. I am a paralegal (not in BK) and when I sense a client is confused, I recommend I have the attorney call the client to discuss what is confusing them. Even if I am the one the client talks to most, it is ultimately the attorney's responsibility to make sure the client is adequately advised.

She then told me to get current on the mortgages (impossible) do a ch7 then do a ch 13 to strip the 2nd. I'm confused now.

What she is talking about is called a Chap 20. It is somewhat controversial whether it works. Different courts have ruled differently. You should definitely hear directly from your attorney that it is allowed in your district.

Have you considered catching up on the first, filing a Chap 7 and then trying to settle the 2nd? Maybe you are too far behind on the first to do that.

It is true that when you file a Chap 13, a 2nd mortgage that you are stripping should not be included in the means test. (It's actually not even called a means test in Chap 13. Its called "Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income"). But I believe that when you do the means test for a Chap 7, you do include the 2nd mortgage. That could be why you don't think you qualify for a 7 and the paralegal thinks you do.

[Jf24]

Seems like she didn't give me the 13 option. Quick to just do a 7 and I am sure there is a way to find DMI to fund a plan.

Is it true to do a 7 you have to be caught up on both mortgages? If so would a mortgage co set up a plan to get current that will satisfy that requirement. Both 1st and 2nd are from same mortgage co.

I might be able to catch up on 1st, slim but maybe but not both.

[LadyInTheRed]

Is it true to do a 7 you have to be caught up on both mortgages? If so would a mortgage co set up a plan to get current that will satisfy that requirement. Both 1st and 2nd are from same mortgage co.

That makes the option to settle the 2nd after a Chap 7 discharge less likely.

There is nothing in the law that requires you to catch up on your mortgage before filing a 7. But, the lender may file a motion for relief from automatic stay and foreclose before you are discharged. Even if they don't get relief from the stay (more likely in the current market), if you are behind on your mortgages at discharge, you are vulnerable to foreclosure. You may be able to do a mortgage modification before filing a 7 to bring the loans current. It is also an option after the 7. But that takes a long time and there is no guaranty you'll get the modification. After a Chap 7 discharge, you can walk away from the mortgage at anytime without liability for a deficiency.

One thing you should remember is that if you keep your home in a Chap 13, your 1st mortgage will not be discharged even if you get rid of the 2nd. I believe New York is a deficiency state. So, if you have problems with your mortgage in the future and the bank forecloses, you may be liable for a deficiency.

[Jf24]

Have you considered catching up on the first, filing a Chap 7 and then trying to settle the 2nd? Maybe you are too far behind on the first to do that. Maybe with tax check but don't look good.

It is true that when you file a Chap 13, a 2nd mortgage that you are stripping should not be included in the means test. (It's actually not even called a means test in Chap 13. Its called "Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income"). But I believe that when you do the means test for a Chap 7, you do include the 2nd mortgage. That could be why you don't think you qualify for a 7 and the paralegal thinks you do. This makes sense and using the other calcualation would give me dmi to fund a 13.

I am no expert but to me it makes sense in my case to do a 13=behind on mortgage and strip 2nd.

[tobee43]

I am no expert but to me it makes sense in my case to do a 13=behind on mortgage and strip 2nd.

insist on the atty....doesn't matter. damand it, or move on to another atty like your instints tell you.

i'm the best paralegal i know and i would never give an option or an opinion other than on this forum and not in the role of a paralegal. it's irresponsible for any paralegal. i have never worked under a watchful eye of atty and as far as i know, the best paralegals usually work alone with their own staff, certainly if their own attys can't trust them i can see how that would be an issue a serious one for any client, indeed. if that's not who is helping you, (a paralegal with staff), i would insist on seeing the atty... period.

personally, i would attempt the 7, just me. however, you know your own circumstances far better.

[despritfreya]

Is it possible that you are being pushed into a 7 because you are over the debt limits for a 13? That would be the only reason for a "20".

You need to discuss this with your attny (not the paralegal). You need to be comfortable with ALL aspects of your case BEFORE you file.

Des.

[Jf24]

personally, i would attempt the 7, just me. however, you know your own circumstances far better.

I have one calculation in my head thinking a 13 is better form me. Strip 2nd that is $550 a month for the next 15 years or pay in a 13 for 5 years. Is this not logical? Plus mortgage arears.

Is it possible that you are being pushed into a 7 because you are over the debt limits for a 13? That would be the only reason for a "20".

You need to discuss this with your attny (not the paralegal). You need to be comfortable with ALL aspects of your case BEFORE you file.

Des.

I have $65000 in cc and 2nd is $55000

Will make a point next week to see atty.

[tobee43]

it may be logically if that is what works best for you. however, it is still vital that you discuss this with someone that YOU feel absolutely comfortable with. and, while, indeed, that aspect of your case does make sense to follow that path, one would have to look at the totality of your situation to really truly advise you.

best of luck!

[HHM]

Well, if you qualify for a 7, it is less risky to do a 7, wipe out what you can wipe out and then see if the 1st mortgage will work with you and then settle with the 2nd. If you do qualify for a 7, that means you have very little, or really no disposable income, so that makes you super high risk to complete a chapter 13 from the get go.

However, as far as process, at some point, you should be meeting with the attorney for a finalization.

[Jf24]

Is settling the 2nd possible if the same cu has both mortgages?

[Jf24]

First of all, Happy Easter to all.

Seems the majority where ever I read says to go for a ch7. I know my atty will know best and will get to speak with him soon. I really like him, it's just the roll of the paralegal that was confusing me.

I actually met my atty one day when I went to view some 341 meetings, he remembered me, pulled me aside (he thought I went with someone else and I explained I was just just viewing some 341s to learn) and talked with me for a while answering some questions. I even saw him in action and looked good up there, didn't seem to have any problems with any clients.

I may be able to get 3 of the 4 month of areas on the 1st paid with some money I have aside and my tax check that will soon get but catching up on both is not possible. Since the 1st and 2nd are with the same credit union, them knowing that if I do a 7 and not a 13 I can't strip the 2nd and will work with me on the first.

A modification was done 2 years ago to get me from 5 to 3.5%. Can another mod be done?

[SMinGA2]

Sounds like you could 'use' the 2nd payment to qualify for a 7. (If you have $250 DMI when not paying the 2nd, you're -$300 when you count the 2nd payment.) It may or may not be possible to file 7 then file 13 for a lien strip - depends on your district.

The paralegal helps with paperwork and such - cannot give legal advice. You need to sit down w/ the attorney - and get legal advice on your situation. Ultimately you have to choose what is best for you. It might be a simple situation of your attorney's office does mostly 7's, and is not so familiar with 'strategic' 13s. You also may be more informed than their standard customer.