Attorney refuses to file voluntary dismisssl of chapter 13.

[Twigs1972]

Our payment went up $400 per month, we have paid in $30,700 in 30 months (increase from $850 to $1250) per month. I am 73 and had my aortic valve replaced recently. I am still working but not sure how much longer I can work. Thus we are requesting to dismiss our chapter 13. Our attorney is refusing to file on our behalf without extensive written explanation on why we want to file. It is my understanding that we can ask for dismissal without specifying a reason. I don’t want to feel like I have to continue working just to make the payment. We fully understand what the consequences could be but feel that this is the best option for us. We do not want to file a hardship case or convert to a chapter 7. Can we dismiss her and use another attorney and would it be difficult to find an attorney just to file the dismisssl? We are in Arizona if that makes a difference.

[justbroke]

Maybe despritfreya has some common ways to do this in Arizona. Looking at what you wrote, it reads as though your attorney is asking for a reason to file a motion for a hardship discharge. Maybe they think that's better, to have all your debt discharged now. Unless you have some strategy where you want to preserve being able to file Chapter 7 in the next 2 years for a new Chapter 13.

I'm thinking your attorney believes and wants to motion for a hardship discharge. Maybe you could try to explain again that you just want a dismissal and don't want a discharge.

It can be complicated, in a 30-month confirmed Chapter 13, to force withdrawal of your attorney and substitute another. I would just go back to your existing attorney and say you want to dismiss, not receive a hardship discharge. They may say that you're just 6 months away (if you're in a 36-month plan) from a full discharge, and that's why they want to know the reason. Make an appointment to speak with the attorney for 15 minutes.

[despritfreya]

In the 9th Circuit you have an absolute right to dismiss a Chapter 13 at any time. This right stems from the Arizona case of In re Nichols. If your attorney is not willing to file a Motion to Dismiss then you can do it yourself. HOWEVER, you need to make sure that a dismissal will not put you in further jeopardy.

If the Plan included payment of vehicles, how are you going to keep them once the case is dismissed? You will need to bring payments current or they will be repoed.

If the Plan included bringing a mortgage current, how are you going to complete the task?

If the Plan included paying taxes, you will need to get on an installment payment with the IRS and/or AzDOR.

I note that in a prior post you mentioned a settlement from an auto collision. Maybe those funds can be used to bring things current.

Upon dismissal, all creditors will have the right to collect but. . . if one or more gets a judgment against you and your sole source of income is SS and/or VA Disability, there would be nothing to collect from. Bank accounts (other than ones ONLY containing only SS or VA Disability benefits - which are protected) are protect up to $5,600 for each of you. If your home has less than about $437,000 in equity, the judgment creditor would not be able to force the sale of the home.

Dismissal vs. conversion vs. sticking it out, really depends upon your situation but, if you want to dismiss, you have that right and the attorney should honor your wishes or withdraw from the case. Go back to the attorney and instruct him/her to file the Motion to Dismiss and upload an Order approving the Motion. It takes less than a half hour to do this and you should sign off on the Motion as “approved to form and content”.

Des.