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  • flashoflight
    replied
    imtryingtho So how about your BK lawyer ghosting you and how are you going to pay him for the extra services not included in the no look fee?

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  • imtryingtho
    replied
    Oh by the way, we got the insurance check for the recoverable depreciation ($1800) and it’s just sitting on our counter. I’m not even sending to the mortgage company until the rest of this is settled.

    Leave a comment:


  • imtryingtho
    replied
    Hi everyone, thanks for your responses!

    To be clear, I’m not even sure that the trustee can do anything with the check. The original insurance check was made out to us and our mortgage company. We sent it to the mortgage company fully endorsed and they cashed it.

    The first check the mortgage company sent was 25% of the funds once we chose our contractor and they sent us the check directly. So you can imagine our shock when we finish repairs, submit everything, and I see the document online says the final check was sent to the trustee. When I called the mortgage company they said it’s standard for the final payment to be sent to the trustee. I’m like thanks for the heads up, do you want this contractor to get paid or not? It feels like we were tricked into this situation, the mortgage company was up our butts constantly about making sure every single repair was done. The mortgage is part of the 13 and I imagine that considering the mortgage company has an interest in the repairs, the trustee would be making sure they’re done and the contractor gets paid. The trustee has seemed reasonable so far, not that I have experience with other trustees. But the trustee can only know what our attorney tells her which apparently is nothing. So far $30k hasn’t magically appeared in the data center portal, so maybe the standard will be to mail to our attorney to forward to us?

    Leave a comment:


  • despritfreya
    replied
    flashoflight
    Unless I'm misunderstanding something, the house is in the bankruptcy estate, so the roofer can't put a mechanic's lien on it unless the trustee and the debtor goes along with it.
    justbroke
    Now, the question of whether the house is in the bankruptcy estate, post confirmation, is question of the plan treatment. In most Chapter 13 bankruptcies, the confirmation of the plan vest the property back to the debtor. Even if it didn't vest back to the debtor, there may still be a valid post-petition claim and hence a lien can be perfected.
    These are very good points. All the more reason to get the contractor paid (I’m thinking a constructive trust or equitable lien against the insurance proceeds). If the contractor is smart enough to hire an attny he/she will get the stay lifted for the purpose of perfecting the lien against the property under state law. Remember, property rights stem from state law, not bankruptcy law. Homeowner may be responsible for the legal fees of the contractor so resolution sooner rather than later makes sense.

    Des.

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  • justbroke
    commented on 's reply
    From what I have read, California is one of the few States in which the debtor's property does not revest upon confirmation. (A debtor can change the vesting of the property via the plan. That decision is based on a specific strategy.)

  • flashoflight
    replied
    Originally posted by justbroke View Post
    The roofer is not a creditor with a pre-petition claim. Post-petition actions can cause issues because the new debt is not part of the bankruptcy. This is why you can get in trouble with post-filing taxes, newly incurred debt, and other claims arising from post-petition behavior.

    Now, the question of whether the house is in the bankruptcy estate, post confirmation, is question of the plan treatment. In most Chapter 13 bankruptcies, the confirmation of the plan vest the property back to the debtor. Even if it didn't vest back to the debtor, there may still be a valid post-petition claim and hence a lien can be perfected.
    OK. I think you're right that lien can be perfected. But the roofer still can't do anything more than perfecting the lien until the case is over if the estate doesn't vest to the debtor until the end of the case, which is the rule in my district in California.

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  • justbroke
    replied
    Originally posted by flashoflight View Post
    Unless I'm misunderstanding something, the house is in the bankruptcy estate, so the roofer can't put a mechanic's lien on it.
    The roofer is not a creditor with a pre-petition claim. Post-petition actions can cause issues because the new debt is not part of the bankruptcy. This is why you can get in trouble with post-filing taxes, newly incurred debt, and other claims arising from post-petition behavior.

    Now, the question of whether the house is in the bankruptcy estate, post confirmation, is question of the plan treatment. In most Chapter 13 bankruptcies, the confirmation of the plan vest the property back to the debtor. Even if it didn't vest back to the debtor, there may still be a valid post-petition claim and hence a lien can be perfected.

    Leave a comment:


  • flashoflight
    replied
    Originally posted by despritfreya View Post

    Why on this planet would a trustee “keep” an insurance check that is suppose to be utilized to pay a post petition construction claim to a roofer who, in all likelihood, now has a lien against the property for work not paid? .
    Unless I'm misunderstanding something, the house is in the bankruptcy estate, so the roofer can't put a mechanic's lien on it unless the trustee and the debtor goes along with it. He has to wait until the case is over and that's assuming that the time limit for filing the mechanic's lien is tolled by the bankruptcy like the SOL. So it's just a post-petition unsecured debt unless the roofer is successful in converting the debt to secured.

    Nevertheless, it's clear that the check belongs to the roofer to the extent of the services and material provided so the debtor's attorney needs to fix this. So this goes back to either the debtor's attorney ghosting his client or the client being unable to pay the post-confirmation legal fees not included in the no-look retainer agreement so no services need to be performed.
    Last edited by flashoflight; 05-14-2022, 09:44 AM.

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  • justbroke
    replied
    Originally posted by bornfree2 View Post
    I love all the gaslighting going on here for the obviously incompetent and unprofessional lawyer that OP unfortunately had.
    Nope. Everyone said that a.) the attorney was unprofessional, and b.) that changing Chapter 13 attorneys post-confirmation is difficult and can be expensive.

    Unfortunately, this is an issue in solo practice offices. As you have read above -- I hope you did -- another debtor used a work provided service which only paid the Chapter 13 attorney $1,500 for a complex Chapter 13. That attorney, though, kept providing services despite the very low payment on a Chapter 13. (The no-look fee for a Chapter 13 in my area of Florida is $4,500 and that's without a la carte services.)

    An attorney "is" worried about being paid, just as the carpenter is worried about a client not paying on their contract. My observation is that the supermajority of attorneys try to be as effective as possible given the terms of the fee agreement. Perhaps this attorney is like the plumber that took a job from a so-called "home warranty" company. Sure, you sign up for the work, but then realize you are severely being underpaid for the work required. (Maybe that's a bad analogy.) But, that still doesn't excuse the terms of the fee agreement. You must look to what you agree to in that agreement for the terms of your attorney representation.

    Originally posted by bornfree2 View Post
    Heck i cant see any professional having a successful business this way.
    Yep, not responding is unprofessional. It may even be worthy of a report to the bar, but rest-assured that if you report them to the bar they will drop representation. The first goal is to figure out the problem and then determine whether the incident should be reported, along with what you'll need to do if dropped.

    Leave a comment:


  • bornfree2
    replied
    I love all the gaslighting going on here for the obviously incompetent and unprofessional lawyer that OP unfortunately had. Its a fact of life there are some very incompetent and lazy lawyers out there. I have met my fair share of bozo clowns in the bankruptcy circuit.

    OP is in a difficult spot BECAUSE of the attorney -- something as simple as mailing a tax return to a trustee should be free if it was 'outside the flat fee'. That is extremely unprofessional and straight up greedy

    The only thing a lawyer should be worried about when they take on a client is how to properly represent them - not if they cant bill a quarter hour for stuffing an envelope and putting a stamp on it. They should not be lawyers if they are so determined to turn every turn of the hour hand into money for their pockets - they should be prostitutes instead.

    My mid term goal is to become a lawyer myself. My practice will never short a client. Cause im in it for justice not money. Heck i cant see any professional having a successful business this way.

    Leave a comment:


  • despritfreya
    replied
    This is in response to the following, which I modified for ease of reference:

    We asked in February for (our attny) to submit a request for temporary lower payments due to a new roof deductible as well as a modification due to our son’s increased medical expenses. He told us to move forward repairing the roof and get him documentation paperwork and he would submit everything by March 8th. (He did not timely submit papers to the court).

    We got the roof repaired and the mortgage company endorsed the insurance check and then sent it to our trustee, (not the contractor. As a result,) we owe the roofer $30k.

    (Our attny finally) sent us loan modification documents to sign. (We signed and returned them to our attny) and now, radio silence.
    You have the right to seek out a new attorney but such may be difficult. Most attorneys do not like to take over a case. We each control our cases in unique ways and typically do not like to take over something we did not have control of from day one. Having said that, there are attorneys who do this routinely. When we take over a case we do what we can to fix any problems to get the case back on track. This, unfortunately, costs the client more money as being new to a case includes the expense of the learning curve.

    Having said the above, here is my spin on this. . .

    Why on this planet would a trustee “keep” an insurance check that is suppose to be utilized to pay a post petition construction claim to a roofer who, in all likelihood, now has a lien against the property for work not paid? IMHO that check should have been issued as a joint check between the mortgage company, you and the roofer. In some states, the lien rights of a contractor are ahead of a mortgage holder.

    This is what I would do:

    1. File a Motion for the Release of Insurance Proceeds. This Motion would seek the release of the funds for payment to the roofing contractor. Any proceeds not needed would remain with the Trustee for the benefit of creditors.

    2. As it relates to the loan modification, contact the lender to make sure it has what it needs. Please note, in my jurisdiction, the lender’s attny (not the debtor’s attny) files a Motion to approve the modification. It is possible that your jurisdiction handles things in the same way and you just need to prod the lender to get the paperwork filed.

    3. To the extent necessary, file a Motion for Plan Payment Moratorium. Ask the court to allow you a grace period of ____ number of months. Just remember, the missed payments have to be made up so the Plan payment may increase at some point.

    4. To the extent you are not getting a response from your attorney - go to his/her office and meet face-to-face. We are now sort of “post pandemic”. Most attorneys have resumed in-office visits.

    Hope this helps.

    Des.

    Leave a comment:


  • Barbisi
    replied
    Wow, I think we are so lucky to have survived our BK13 since we used the employee benefit R. provided , Hyatt Legal Services.
    Our attorney told us they didn't pay him post-petition, but somehow he always responded and actually did fight the trustee when he attempted to raise our payment by 100% in 2020!
    I realize now that we did actually get a pretty decent lawyer after all! He never charged us after he was paid the $1500 that the plan allowed and as bad as our 5 years proved to be, at least we didn't have to look for another attorney.
    imtryingtho, I wish you the best and hope you can perservere and make it through what really sounds like a waking nightmare!
    Last edited by Barbisi; 05-13-2022, 10:41 PM.

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  • flashoflight
    replied
    How much are the legal fees for what you're requesting so far and are you planning to somehow pay him through the plan? Nothing other than forwarding the tax return would be free, and I do that myself so I don't bug my attorney until the end of the case. I had a lot of post-confirmation legal services, but they are paid for. It was almost $3k in legal fees.

    If you get a new attorney, he will want to be paid too. A request for temporary lower trustee payments isn't a good sign that the legal fees will be paid.

    Leave a comment:


  • justbroke
    replied
    Originally posted by imtryingtho View Post
    When we HAVE met with our attorney, he is very helpful and takes his time and then gives us these ETAs such as “I’ll send that by Monday” etc and it never EVER happens like he says. I don’t get why he can’t set expectations better so at least we aren’t just floating in the wind.
    I don't know either and you will need to find out, one way or another, where you stand with the attorney. I'd call twice a day until they respond, or go down to their office if it's not too far from your home.

    Leave a comment:


  • imtryingtho
    replied
    Originally posted by justbroke View Post
    This, that I underlined, is likely the issue. The attorney probably received a flat-rate (no look) payment for the services and the engagement agreement may or may not provide for a la carte services (post confirmation).
    We asked once if we needed to open a new request with the legal benefits, thinking that if there was the option for more money he would be better. He never responded to it. It’s hard because while he may not have motivation to help us, we have no other option. Clearly we can’t contact the trustee ourselves, everything I’ve seen advises against it, including the trustee’s website. I imagine trustees are used to this behavior by attorneys? We want to stay in good with the trustee and our attorney is making us look like crap. Last year we were shocked when the trustee said in May she never received our tax return. We sent it to our attorney in February! Well I guess it wasn’t a signed copy and our attorney never told us to send a signed copy.

    To further complicate things, our contractor who is waiting for the $30k is a relative of a friend, so things could get very awkward if he isn’t paid, although he fully understands the mortgage company holds the funds initially. Now that the work is done, we have no explanation to give him since he doesn’t know about the trustee situation and we want to avoid disclosing.

    When we HAVE met with our attorney, he is very helpful and takes his time and then gives us these ETAs such as “I’ll send that by Monday” etc and it never EVER happens like he says. I don’t get why he can’t set expectations better so at least we aren’t just floating in the wind.

    Leave a comment:

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