Should I switch attorney?

[Omnipotent]

A little back ground info:

Due to an illness that hindered my ability to work, in Jul '11 I filed for ch13. I filed for the arrears on my mortgage, a vehicle loan, and a little cc debt. The only debt obligation I was behind on was the mortgage. My vehicle was current and never late on a payment, and had very little cc debt since I routinely zeroed them out every 30-60 days anyway. So my payment was based off that secured debt, and of course the attorney & trustee fees.

At the end of last summer my bank finally agreed to a restructuring of my mortgage (which if they had done that in the first place I would have never needed to file bk). Now I'm thinking, since the trustee said my unsecured debt was dismissed, I could get out of bk early. Discussed this with my attorney and she led me to believe that was a possibility. So I ask, since the arrears are not in the bk anymore what should I pay each month. She tells me to send in an amount that is about 1/5 the original amount, as she said, "until I get a final number". Well, six months has rolled by with several emails asking for a final resolution. Last month I get slapped with a notice from the trustee wanting to dismiss my case due to "delaying the case" from non payment. Come to find out my attorney has done nothing to remove the arrears out of bk. So now the only option I am given is to go back to paying the original amount, plus, a make up payment for the next 6 months. She says it's not a good idea to remove the arrears because the trustee will raise my monthly bk payment. Wait... what? Had a LOT of problems over the last few months getting good communication from my attorney. Come to find out, she is ill and been working from home all this time.

OK, so I come here for advice since no attorney can talk to me without my current attorney's permission. I can't even talk to my own attorney face to face. What are my options? Can I fire her and get another attorney? Maybe convert to ch7? Thoughts?

[LadyInTheRed]

The fact that your attorney told you to lower your payment without first modifying your plan is not a good sign that your attorney knows what she is doing. But, you also say that the arrears are not in your plan anymore. Was your plan modified?

You say that the trustee said your unsecured debt was dismissed. Assuming creditors filed claims that were not dissallowed, then those debts are not discharged until you finish your plan. To finish your plan early (before 36 months if your income was below median when you filed, before 60 months if it was over median), you must pay 100% of all unsecured claims. Was your mortgage modified to include the arrearages that were being paid through the BK and were your mortgage payments lowered? If so, your plan probably should be modified (if it wasn't already) which will result in your payments increasing unless your disposible income decreased in an amount equal to the decrease in your mortgage payment.

Yes, you can fire your attorney. But, I don't recommend doing so until you make sure your case will not be dismissed and make sure you understand her recommendations for going forward. You don't need your attorney's permission to talk to another attorney. You may find many attorneys are reluctant to meet with you if you already have an attorney. But, it isn't because they need her permission. Once you have your case stabilized and have a good understanding of what your attorney says your options are to move forward, try calling attorneys and telling them that you are looking for a second opinion and are willing to pay for their time.

Does she work in a firm with other BK attorneys? If so and you are more comfortable with a face-to-face meeting, I suggest you call the firm and ask to make an appointment with another attorney to review your case. If there are not other attorneys, then you need to have a long conversation with your attorney to discuss your options. You may want to try email instead of the telephone conversation.

[BKAttyMI]

Lady gives you good information. From the attorney viewpoint, remember that bankruptcy attorneys know that fees are paid through the Chapter 13 Plan and your current attorney has already likely been paid. Another attorney will not want to spend the time sitting down to review your case knowing that they will not be paid for their time, you should offer to pay a consultation fee to sit down with someone else to review the case history and offer a second opinion on your options.

[Omnipotent]

The fact that your attorney told you to lower your payment without first modifying your plan is not a good sign that your attorney knows what she is doing. But, you also say that the arrears are not in your plan anymore. Was your plan modified?

No, the bk plan was NOT modified and as far as the trustee is concerned I still owe the arrears on the mortgage. Only with respect to my bank I have no more arrears. When the mortgage was restructured the entire balance was included. So it is no longer in default and is current.

You say that the trustee said your unsecured debt was dismissed. Assuming creditors filed claims that were not dissallowed, then those debts are not discharged until you finish your plan. To finish your plan early (before 36 months if your income was below median when you filed, before 60 months if it was over median), you must pay 100% of all unsecured claims.

Yeah, I've found out threw my own research the trustee meant 'will be' dismissed. He wasn't clear on that part and my attorney never clarified it. She should have told me when I inquired about getting out of it early with a loan mod on the mortgage.

Was your mortgage modified to include the arrearages that were being paid through the BK and were your mortgage payments lowered? If so, your plan probably should be modified (if it wasn't already) which will result in your payments increasing unless your disposible income decreased in an amount equal to the decrease in your mortgage payment.

Yes, and yes payments were lowered by 25%. And my disposable income has decreased also. I'm self employed one man operation. And trying operate under a bk is very, very difficult. My credit cards were my line of credit for goods and supplies. I think she's under the impression I am making way more than I am. A couple of days ago I sent her an email asking where is she getting her numbers. It might be a day, week, month... or never before she replies back.

Yes, you can fire your attorney. But, I don't recommend doing so until you make sure your case will not be dismissed and make sure you understand her recommendations for going forward. You don't need your attorney's permission to talk to another attorney. You may find many attorneys are reluctant to meet with you if you already have an attorney. But, it isn't because they need her permission. Once you have your case stabilized and have a good understanding of what your attorney says your options are to move forward, try calling attorneys and telling them that you are looking for a second opinion and are willing to pay for their time.

I recently visited a diff attorney, and that's where I got the "I can't talk to you without your current attorney's permission". At least that's what he told me. :/ Also, my case as of now is not being dismissed because she filed a motion for 'catch up' plan payment for the next six months.

Does she work in a firm with other BK attorneys? If so and you are more comfortable with a face-to-face meeting, I suggest you call the firm and ask to make an appointment with another attorney to review your case. If there are not other attorneys, then you need to have a long conversation with your attorney to discuss your options. You may want to try email instead of the telephone conversation.

Yes she works in a firm. And I've seen her face to face just once, and that was to pass me off to an assistant. And as I said, email take too long. I can't email her directly anymore and it goes through an office assistant. She may never respond unless I persist. As I said before, she is too ill to work from the firms office and operates from home. She was struck with MS about the time I was getting my mortgage modified.

I should also note, this is not the original firm that was handling my case. The first one, the attorney that owned it retired from bk law and I was passed on to another firm. The attorney that is representing me now however, worked for the original firm.

Going to digest what you said some more, but I think your suggestion to call the firm and request to speak to someone else is going to be my first step. Let me note though, there is a trustee meeting on Apr 8. I was told I didn't need to attend since I signed off on the 'catch up plan'. But would it be a good idea to go anyway? I'm not even with the original trustee. The first one DIED! And as soon as the new trustee took over he filed a motion to dismiss my case.

And thank you so much for your help!!

[Omnipotent]

Lady gives you good information. From the attorney viewpoint, remember that bankruptcy attorneys know that fees are paid through the Chapter 13 Plan and your current attorney has already likely been paid. Another attorney will not want to spend the time sitting down to review your case knowing that they will not be paid for their time, you should offer to pay a consultation fee to sit down with someone else to review the case history and offer a second opinion on your options.

I know for a fact they have been paid. I get a yearly statement of the disbursement of funds collected. And it shows the trustee has already paid them in full.

As I said in the previous post. I visited another attorney. I made it clear I was willing to pay and ask what their fees were. That's where I was told they couldn't talk to me without my current attorney's permission.

I've emailed other firms, and only two responded back. And that was with "sorry, we are not accepting new clients at this time".

*sighs

[LadyInTheRed]

I definitely think you should ask to meet with another attorney in the firm. If you need to, ask to speak with the managing partner. Tell them about your attorney telling you to lower your payment without a modification and that you have lost confidence in her and would like to review your case with somebody else.

[Omnipotent]

I definitely think you should ask to meet with another attorney in the firm. If you need to, ask to speak with the managing partner. Tell them about your attorney telling you to lower your payment without a modification and that you have lost confidence in her and would like to review your case with somebody else.

That's definitely what I am going to do first on Monday morn.

And btw, today I get a notice the lender for my vehicle filed a motion for relief. Great... now I got to deal with that.

[LadyInTheRed]

When you call be sure to speak with an attorney. Tell them that you started making lower plan payments based on the advice of Ms. Attorney and as a result, the trustee has filed a motion to dismiss and your car lender has filed a motion for relief. You want to give them enough information to realize the firm may have malpractice exposure. But, don't make any threats or even mention malpractice at this point unless they are completely unhelpful.

[Omnipotent]

Well.. I wanted to give everybody a follow up.

So Monday on the 6th, I called and ask to speak to the principal owner of the firm. Of course, he wasn't available. So I said he needs to call me by noon tomorrow(7th) or I will be seeking another attorney. He called post haste and set up a meeting the next day.

Had the meeting with him and the attorney in charge of my case over the phone. Long story short, they agreed to do what I asked for over 6 months ago. And that was to file a motion to remove the arrears of the mortgage, and submit my income to lower my payment. Also, they assured me I had the option at anytime after that to file another motion to pay off the balance of my vehicle loan with a lump sum(providing those moneys are not from any recurring revenue) and get out of bk early.

Fast forward to today. No word from my attorney on the status of my case or what my lowered payment would be. Yesterday a notice arrived in the mail stating the courts have approved the banks motion for relief on my vehicle, because no response was made to counter it. So I assume my truck can be repossessed at any time now. So best I can tell, my attorney pretty much has done nothing since our last talk. I called them again yesterday and made the same demand if someone didn't return my call. I was told there is a new attorney working on my case and he would call before the day was out. And... as expected.. no phone call.

I am at a total loss as to what to do. I've contacted numerous other firms reaching out for help, and NONE of them will return my calls. My truck is my mobile office. Without it I pretty much cannot work. If I loose it, I am doomed.

Does anybody know of an attorney in the Dallas area that would talked to me?

[Omnipotent]

Just talked to another firm and explain nobody will talk to me and I desperately need help. The lady said attorneys are not willing to take over bk cases, and only offered to let me leave a message for one of their attorneys.

Should I contact the trustee and explain my plight?

[BKAttyMI]

The Trustee (at least around here) will not give you any information if you have an attorney representing you. You may want to consider a bar grievance complaint (I'm not sure what these are called in TX). I also wonder why you aren't showing up at the attorney office and demanding someone do something there on the spot? I also can't believe NO attorney will look at your case for $! You must not be contacting the right attorney offices. I would certainly look at a case for a consult fee even if the debtor already had an attorney. Make some more phone calls, I would suggest opening with "how much is a consult for a chapter 13 case that is already open".

[despritfreya]

Just talked to another firm and explain nobody will talk to me and I desperately need help. The lady said attorneys are not willing to take over bk cases, and only offered to let me leave a message for one of their attorneys. Should I contact the trustee and explain my plight?

Bull. We do it all the time. You need a referral to an attny who handles something other than the run-of-the-mill case. You can call the Trustee to see if he/she has a list. If he/she does not, he/she will tell you. Also contact the Bk court. It may have a referral list. Both of these options are available in AZ so maybe they are also available in TX.

For sure, your Trustee is not going to give you any legal advise as that would be improper.

Des.

[Omnipotent]

The new attorney(within the same firm) that is handling my case finally called. He gave me some bs reason about a glitch in the software they are using is why they didn't file an objection to the motion for relief before the dead line. Also, he says he "reached out to the bank's attorneys" to inform them my intentions is to pay the balance on my truck. Although he wouldn't assure me 100% a tow truck wouldn't show up to take my truck at any moment.

The reason I ask about talking to the trustee isn't for any legal advise, but to inform him that I have no arrears on the mortgage and I was having trouble getting my attorney to file the proper motions. As far as the courts and trustee are concerned, they think I still have arrears. If he knew what was going on in the first place, he might not have ask to courts to dismiss my case and trigger the bank to file a motion for relief.

I just don't understand why this firm hadn't filed anything other than a motion for a 'make-up payment' plan. And that is for making up payments that I shouldn't be making in the first place! Can someone speculate as to why they wouldn't have filed something on the 6th or by next day to have the arrears removed and payment modified?

[BKAttyMI]

I can speculate that they aren't competent enough to pay attention to your case. GO TO ANOTHER ATTORNEY.

[Omnipotent]

Another follow up:

I talked to several other firms, and nobody wants to take my case over. Even talked to a couple that specialize in legal malpractice. Both told me "sorry, we don't deal in bk malpractice".

I called the original firm I hired and explained to them what was going on, and was there someone else they could recommend to take over my case. They wouldn't recommend anybody and insisted I just need to keep the talks open with my current attorney. And I was like... yeah, been trying to do that. So I said I had no option but to wait until shtf and deal with it after the fact. The guy told me he would call their contact within the firm I was being represented by and have a chat with them. Next morning the owner of the firm is calling me to touch base and explain all that was taking place. So what ever they said to him, seems to have lit a fire under them. Even got the paperwork emailed to me to sign to move forward with the motions, and supposedly got my bank to agree to reinstate the stay on my vehicle.

So at this point... maybe... my attorney has got a handle on this. *crossesfingers Now if I can just hold off on having a stroke or heart attack until this crap is done! :/