Attorney refuses to file voluntary dismisssl of chapter 13.

[womanonfire]

I did that with my crappy attorney and was able to successfully file a motion to modify the plan on my own. I just paid my plan off early, so I'm waiting for the trustee to file the certificate of final payment and report and then I'll file my Debtor's certificate and be done! Best wishes for success to you!

[Twigs1972]

Thanks I will give him a call. Appreciate all your help.

[despritfreya]

Try Scott Hyder - he's at 34th Street & Shea. 3420 East Shea Blvd., Ste. 200 Phoenix, Arizona 85028 | Phone 602-923-7370.

Des.

[Twigs1972]

I live in North Phoenix Cave Creek Road and Greenway Road area

[despritfreya]

Tami will respond and she won't mind if you do a follow up. As to another attorney, not sure one would jump in for this one thing. Do you live on the east or west side of the Valley?

[Twigs1972]

hi, I called Tami at the Self Help Center and she said we could file the dismissal ourselves and that she would send me a template to follow. I did not receive it and don't want to bug her about it, so I hope she will send it later. My question, since you seem so knowledgeable about this, do you know of any attorney that would take on filing the dismissal on our behalf? I just want to hire them for this one specific task but all the lawyers I have talked to said they do not do that. Thanks,

[Twigs1972]

Thanks that is very reassuring.

[despritfreya]

Just curious, were you able to find our judge and trustee with the information I gave you?

All you had to do was supply the initials. Your judge is very good and I have know your trustee for well over 30 years which takes us back to long before he was a trustee.

Des.

[Twigs1972]

Des, Thanks I will contact her today. You have been more helpful during our brief correspondence than our attorney ever has! I will keep you posted. Just curious, were you able to find our judge and trustee with the information I gave you? Thanks again for all your help.

[despritfreya]

There are only two letters at the end PS and my trustee is EM no creditor filed a relief from stay either. Do you think we can find another lawyer to just file the dismissal for us after we terminate her representing us? Is it difficult to file a pro se motion?

Unless there was something unusual in your case, neither your judge nor your trustee are going to "oppose" a dismissal. Contact Tami Johnson at the Self Help Center. Tell her your situation and see is she can refer you to someone or talk you through the relatively simply process of preparing and filing a Motion to Dismiss. The number should be 602.682.4010.

Keep us posted.

Des.

[Twigs1972]

There are only two letters at the end PS and my trustee is EM no creditor filed a relief from stay either

do you think we can find another lawyer to just file the dismissal for us after we terminate her representing us? Is it difficult to file a pro se motion?

[despritfreya]

In response to. . .

She also stated that despite our interpretation of the law, the judge has the discretion to either grant or reject our motion.

I would love to know who this attorney is but, do not disclose on a public forum. If you are comfortable, please state the last 3 initials of your case number. That will tell me who your judge is.

The judge does not have discretion unless the case had been initially filed under a different Chapter and then converted to a 13.

I just dealt with this in the context of a Chapter 12 (very similar dismissal provisions) and the creditor attorney who raised the issue was the same creditor attorney in Nichols. When he finally opposed the dismissal he did not state there was no absolute right. He argued that the dismissal could be conditioned upon not being able to file another case for a period of time. It was a contested bankruptcy so we ended up agreeing to having any new case within ___ months would be assigned to the same judge – who also was the judge in the Nichols case. It is highly unlikely that the Debtor will file again.

In response to. . .

We further understand that by requesting dismissal of our Chapter 13 case, we may be prohibited from filing another bankruptcy case for 180 days.

During the course of the case did any creditor file a Motion for Relief From Stay? If “yes”, then the 180 day provision can apply. Read 11 U.S.C. 109(g) as it relates to a voluntary dismissal. If "no", the attorney is not familiar with the Code provision.

I agree with JB that the letter is a CYA. I can tell you that only in rare cases would I have my client sign a CYA letter. If you and the attorney cannot agree on the letter, you can fire the attorney and file the Motion yourself.

Again, if you are comfortable with this, what are the 3 initials at the end of your case number?

One last item, is your trustee DK?

Des.

[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.

[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]

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: