My attorney...should I be worried?

[laurannm]

My attorney works for a Chapter 7 trustee, but I just realized that she has about 2 years of experience doing BKs, and from what I can see on Pacer, she has never done a Ch 13. She has done an above-median case though and many below-median cases.

We are borderline Ch 7/Ch 13, and I am concerned that if we get pushed into a 13 we won't have an experienced lawyer in our corner. On the other hand, she is the only attorney who was willing to run our means test and schedules I & J for free to give us an idea of where we stand, and she does work for a trustee, which I would think is a plus (she is confident in a Ch 7, but I have my doubts...long story).

All other lawyers immediately were talking Ch 13 without even looking at our info.

Should I be concerned about my lawyer's lack of experience in a Ch 13?

I am completely torn on what to do...thanks!

[getouttadebt]

My case has been a challenging one due to high income. My attorney never batted an eye at whether or not we would qualify for a 7. The thing to remember is,generally speaking, the local Ch. 7 Trustee is the administrator of the BK estate. He is looking for assets. It's the UST looking to disqualify people from Ch. 7 and force them into Ch. 13. My local Ch. 7 Trustee was honest and thorough and we left the 341 feeling great. Felt even better the next day when Report of No Distribution and No Asset was filed on PACER. Then, the UST jumped in and ruined my party. We are still going and battling the UST.

I was concerned at one point about my attorney, but now I really trust him. I think you need to ask yourself whether or not you personally feel comfortable with your attorney? Does she seem trustworthy? Ask her some difficult questions and see how she responds. Above all, go with your gut instinct and allow your attorney to do their job.

Good luck and best wishes,
getouttadebt

[Flamingo]

Have you talked to her directly about this for her own opinion? It seems you like her but her lack of experience bothers you. Her response and reaction to you question should answer your questions. If she is worth her stuff, you will know. If you still have doubts, you can always find another attorney.

[laurannm]

Thanks to you both for the input

You both touch on valid points...personally I definitely feel comfortable with her. I have only met her in person once during the initial consult in March, but we are filing in July so I'll be meeting her again in a couple of weeks to start the paper work. During this time I have called her multiple times with all sorts of questions, and she has answered them with confidence (even when I brought up the doubts I had, she still seemed confident in her response). And a part of me says you know what, I am not a lawyer, so why not just let her do her job.

I'll bring up the Ch 13 at our next meeting and see what she says. Only problem is that while we haven't paid her anything yet, I am guessing at the next meeting we'll have to give her some sort of deposit at a minimum.

for the heck of it I started researching other attorney's...found someone who has filed lots of cases, but also discovered they have pending disciplinary action against from the state bar association. Found another attorney who claims to know "legal loopholes" that help above-median debtors get into a Ch 7, but has even less experience then our current attorney.

Ugh...fustrating

[Help!]

I know you've seen my posts and replied to them. I can't emphasize enough that you hold the power to determine whether or not your 7 becomes a 13. Your attorney has little to do with the direction it takes once the UST steps in. You will be the one who has to come up with the documentation, the one who has to answer the questions and the one who ultimately proves that you qualify. They may have done the initial calculations, but it will be up to you to substantiate or correct them. Being in the middle of this process myself, I am glad that I do not have to provide explanations for any "legal loopholes". The numbers don't lie - either you have them on the means test and/or schedule J or you don't. Make sure you understand where the numbers come from and that they have been calculated correctly. Don't rely on your attorney!

[FreshLikeADaisy]

Laurannm, for what it's worth, I think you're doing right by sticking with this atty, for the sole reason that she alone is at least willing to TRY for a Ch7, and guide you through the extra work involved. I wouldn't be too worried about the two years in bk, either: while you surely would not want a 2-yr *surgeon* doing your heart transplant the actual fact is that when the law changed in 2005, it was such a huge change in so many ways that they ALL pretty much had to start over. So many times, people have gotten into trouble because their attys advised them out of their experience with the old law: you won't have that problem. Also, you know her experience is good, because working for a trustee she's been in the heart of all of it, much more so than the average bk atty who shows up in court for 341 meetings and the occasional creditor objection.

Here's another way to look at it. So far, every other atty has immediately relegated you to a 13. If this one tries for a 7, and you end up in a 13 after all, what have you lost that another atty would have gotten for you? They're not even willing to try, apparently. Plus, in a 13, you can convert to a 7 whenever your circumstances change and you become eligible, so trying for a 7 and being converted isn't the worst thing that could happen to you: you'd already have a great head start by filing either way.

To me, in your case, with the over-median issue, her experience working for the bk trustee under the new law, her willingness to at least TRY... I honestly think you probably have a good deal, at least from the facts you've offered. Feel free to disagree of course, but that's my take on it. Good luck!!!

[Help!]

And... if you have a good attorney that feels you have the numbers, go for it! The very worst that can happen is that they move to convert it to a 13. I agree with FreshLikeADaisy... still not a bad outcome. I don't mean to be negative, just trying to give others with incomes over the median filing a 7 a heads up. I do wish you the best of luck and I hope it works out for you.

[laurannm]

Just wanted to post an update....

I met with another attorney in-person yesterday and had a great conversation, very comfortable and had a good rapport with him. Spent nearly 2 hours answering all of our questions, and even ran a means test for free (using my actual pay stubs) while I was there and showed me the results. He sees no problem doing a Ch 7, and all of his calculations completely lined up with everything I have read on these boards (in particular taxes withheld vs actual tax, which is the problem I had with the first attorney). The "legal loopholes" he first mentioned to me didn't really come into play, as we pass the means using just base numbers (nothing above standards or any special expenses). Also put together a preliminary schedule I & J, and saw no issues

He has experience in Ch 13 cases (as seen on Pacer), which was important to me in the event we get converted, and seems to be the type of lawyer who is very much willing to fight issues that may come up (did NOT get this feeling with the first attorney). He even knocked $300 from his usual fee because he was very impressed with how prepared we were, which I attribute directly to the info on this board.

We've pretty much decided that we are going to switch to this lawyer. I know the other works for a trustee, but I am bothered by the fact that she wanted to use taxes withheld vs actual taxes on the means test, which I am 99.9% sure is incorrect, again thanks to the info gleamed from everyone on here (we receive a large refund). Plus to get getouttadebt's point, in a case such as ours where we have no assets to lose and are above-median, we need to be more concerned with the UST.

Great point FreshLikeDaisy....all lawyers experience prior to the changes in BK law is more or less moot, so all lawyers are starting over.

[Phillymanhere]

By the way, Daisy, a two-year surgeon could be an excellent surgeon!

My close friend's plastic surgeon (for breast cancer) was considered the best in the area. He told us he had 5 years of doing the particular breast reconstruction he was going to do with my friend.

Young people coming out an excellent residency in medicine can be excellent doctors; they are up on all the latest techniques and have a lot of energy.

Laura, glad you liked the lawyer. I'd go with him. Even if things don't turn out exactly as you want, working with someone you feel you can trust is a really reassuring thing.

[AngelinaCat]

Laurannm, if you have a *GOOD* working / talking relationship with this attorney, you are extremely lucky. We don't have that, and also have no means now to fire her and start over. Even so, we are progressing.

Our best wishes go with you~~~

[laurannm]

Laurannm, if you have a *GOOD* working / talking relationship with this attorney, you are extremely lucky. We don't have that, and also have no means now to fire her and start over. Even so, we are progressing.

Our best wishes go with you~~~

Thanks...we've only had one phone call and then the actual consult, but so far so good. Sending in the retainer fee this week, so hopefully the good rapport continues.

[CindyLou]

maybe she doesn't do too many 13's because she is so successful with the 7's!!!!!!!!!!!!!

[Mom2one]

Laura,

Quick question can you explain to me the taxes thing? Actual vs. Whatever?

Thanks
Christine

[laurannm]

maybe she doesn't do too many 13's because she is so successful with the 7's!!!!!!!!!!!!!

That's possible....but from what I can see in Pacer, she hasn't done many cases period and all have been below-median debtors.

Also too, when I first asked her about whether or not my husband's income would be taken away if he went back to work after our Ch 13 was confirmed, and she said yes. However, I have since discovered (in talking with multiple other attorneys) that in fact the trustee in our district does not require debtors to submit tax returns or income increases. Adds to the reasons why I want an experienced attorney in my corner in case we are converted

[laurannm]

Laura,

Quick question can you explain to me the taxes thing? Actual vs. Whatever?

Thanks
Christine

On line 25 on the means test it specifically asks for "Actual Taxes Incurred, including federal, state and local (but not real estate or sales).

The first lawyer was of the opinion that this number should be based soley on what my paystub was showing for taxes withheld (federal, state and medicare...I work for the state of MA so I do not pay into SS, instead I have to pay into the state pension plan

The problem with this method is when you typically receive a refund (we usually receive a good sized refund..this year was $8400). Since we get a refund, that means we are over-withholding, and therefore my paystub is not an accurate inidcation of our actual tax obligation. I found a couple of cases on Pacer in my disrict in which the debtor tried to use withholding, and the UST corrected the number on their means test.

So for example, my withholding averages around $1200/month. However, if you were to look at my tax returns for state and fed, my actual tax obligation (i.e. the actual tax I owed after deductions, exemptions, etc.) is around $520/month (significantly less), thus the big refund.