Bankruptcy Dismissed due to Attorney Error. Refile or reopen?

[txeagleair]

This is a Chapter 13 case under the new laws. My attorney forgot to submit information to the court regaring my wages. The court closed the case but gave me the option of reopening or refiling since it was an attorney error. In the mean time I barely managed to survive December financially which included making a partial payment on my mortgage. I know I need to make the full payment each month but I just had to get by till January. Now I got myself back to the point where I can manage my finances through a Chapter 13. However I still have a large mortgage payment due by the 15th of January and another at the end of the month. If I refile the case instead of re-opening my lawyer stated that we would be starting over and anything else I have not paid to date can could into the Chapter 13 filing. His fee for refiling would be much less than the partial mortgage payment due at the middle of the month and leave me with the means to get through to the 341 meeting and make payments. I would like to hear some thoughts on this.

[StaciMM]

I think the most important thing to consider is that you want to be able to complete the plan. If re-opening would be a financial stress, then you would be more likely to not make it. You have an option to refile, include the additional mortgage, and that would have a better chance at a fresh start.

Use your leverage. You are in this predicament because of an attorney error. It will hurt you to have 2 BK's filed on your credit report (though you may be able to convince the bureaus that is a mistake). Stress this to your attorney. Other than paying a new filing fee (required by the court) insist that the attorney not charge you anything more. If he refuses, remind him that you can hire someone else and possibly even file a complaint w/ the bar over his errors.

[Kam]

I agree with Staci. The *decent* thing for the attny to do since it was *his* bloody fault that your case was dismissed is to represent you free of charge, including paying the filing fee. THat's just plain *stupid* that you should even have to pay the filing fee, your attorney screwed up, not you!

[sunshine08]

I agree, I think your attorney should have offered to do this and not charge you any additional fees.
In the future, my best advice to you, is to look over everything and double check behind him that all the figures are there and in the right place (going by the information that you know about) Our attorney let us know that we needed to carefully look over everything and make sure that the information was correct and accurate to the best of our knowledge. We found mistakes, she found mistakes and we were able to correct them early on.
Ultimately YOU are responsible for the information on the petition. It is your signature and your case that is at stake, not the attorneys. I am not pointing the blame finger at the attorney either if this was filed under the "new" laws either. Information about the changes etc. was not given to the legal profession in a timely manner, the attorneys, clerks and trustees are still wading through what is what.

[StaciMM]

I just figured paying the filing fee again would be reasonable-since there is an option to reopen the case (no filing fee required) but refiling (new filing fee) would be in the OP's best interest so they can include the mortgage payments that are due.

If there is no hope to bargaining about the attorney fee, though, I'd say see a new lawyer. If you have to pay one, find one who seems very competent-don't want another messed up filing!