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.

[Twigs1972]

We are in a 60 month plan and have weighed all our options and we just want to be done with the 13. Our home is paid for and our cars are current. Our lawyer keeps hounding us for reasons why we want to dismiss, which I know we do not have to include. She always treats us like we are morons, which we are not. She sent us this letter to sign but I do not feel comfortable signing it. The first draft she sent was in my married name not my legal name. If we stay in the plan we will pay in an additional $37,500 above the $30,700 we have already paid in. At this point it is just not sustainable for us. She also stated that despite our interpretation of the law, the judge has the discretion to either grant or reject our motion. And if the judge decides that we need a hearing, both of us as well as our attorney would have to attend and there would be additional fees involved. We have already paid her $10,291 dollars, which has been paid in full to her.

This is the letter she wants us to sign. If we were to do so, could she include it in the filing of our dismissal?

We, the undersigned, —are the Debtors in this Chapter 13 case,— We have instructed our attorney— to file a motion to dismiss our Chapter 13 case.
Our attorney has repeatedly asked to meet with us and advise us regarding the consequences of dismissal, as well as other options that may be available, including possible alternatives to dismissal. We have chosen not to have that discussion with our attorney and instead have elected to rely on our own research and judgment.
We recognize that bankruptcy is a very complicated area of law, that each person's facts and circumstances may be different, and that experienced and competent legal advice is the best way to understand the options, risks, and consequences involved. We also recognize that our attorney has substantial bankruptcy experience and has offered to provide us with legal advice concerning this decision. Even so, we have voluntarily declined that advice and have decided that our own research is sufficient for us to make this very important decision, even though it may have serious financial consequences.
We further understand that by requesting dismissal of our Chapter 13 case, we may be prohibited from filing another bankruptcy case for 180 days. Despite that risk, we have decided that we want our Chapter 13 case dismissed, if the Court approves that request.
We acknowledge that this decision is made knowingly, voluntarily, and despite counsel's repeated efforts to advise us about the legal consequences of dismissal and possible alternatives. We accept full responsibility for this decision and for any consequences resulting from the dismissal of our case.
We further acknowledge and agree that our attorney shall have no responsibility or liability arising from our decision to seek dismissal without first obtaining and considering her legal advice.
Dated:

[justbroke]

Well, that contradicts In re Nichols with respect to the absolute right to voluntarily dismiss a Chapter 13. The statute clearly reads that the court "shall dismiss" on request, unless the case was previously converted. Was your case previously converted?

As far as the letter, it seems the attorney is just doing a CYA letter letting the court know that you were informed of all of the potential dangers, pitfalls, and consequences of a dismissal.

[Twigs1972]

No it was always only a chapter 13. She has always been insulting to us, I am so done with her, I am thinking of just terminating her representation as I know that we are allowed to file the dismissal pro se once she withdraws.