In Bankruptcy, Your Attorney Can Make All the Difference

by Dana Wilkinson, Attorney at Law

January 24, 2013

bankruptcy petitionThis morning while I sat in court waiting for my case to be called, I listened to two hearings that drew a sharp contrast. Both hearings were on the same type of motion. Both were motions brought by mortgage creditors seeking what lawyers call relief from stay. In layman’s terms that means the mortgage creditor is asking the bankruptcy court to release property to allow the lender to foreclose.

In the first case, an elderly woman, a debtor in a Chapter 13 bankruptcy case, was represented by an attorney.  Her attorney spoke to the court on her behalf, but also allowed her to speak to the court on her own.  Although she didn’t have a strong defense to the motion, the court gave her an opportunity to explain what had gone wrong and why her payments were behind.  At the end of the hearing, she and the lender agreed to a schedule to catch up her payments.  While she may not be able to make those payments, and may still lose her house, it struck me that she really gained something by coming to court:  the opportunity to speak out, someone who listened, and a chance to resolve a problem.  I was also struck by the kindness shown to her by her own attorney, the lender’s attorney, and the judge, none of whom exhibited the slightest impatience with the lack of a provable, legal, defense.  And, perhaps most importantly,  she has someone to explain the implications of all that occurred.

In the other case, the debtors were not represented by an attorney.  They court gave them the same opportunity to be heard, but the outcome was much different.  The debtors in that case were trying to stop a foreclosure on their home while their application for a mortgage modification was processed.  But they had filed their case without an attorney, and they had filed a Chapter 7 case, which lacks the provisions of Chapter 13 for dealing with a pending foreclosure.  And instead of focusing on the reasons they felt it was important for the lender to stop foreclosure while a modification application was processed, they focused on a rule, which they had, unfortunately, misread.  Because they did not have counsel to explain the available types of bankruptcy, the implications of the motion, or the application of the rules, they did not have a good day.  I feel sure they left court feeling confused, frustrated, and uncertain about their future, and they don’t even have anyone to ask questions.  It was a stark contrast to the first hearing.  The irony is that the second debtors may have had a better chance at keeping their home that the first debtor.  But they are now in the position of waiting and hoping for a favorable decision by the lender on a mortgage modification.

Each of us has the right to represent ourselves in court, including bankruptcy court.  One of our Chapter 7 trustees has been known to tell pro se debtors that they also have the right to do surgery on themselves, but that doesn’t mean it’s a good idea.   Having an attorney doesn’t mean everything will always go your way.  But it can make the difference between making a good choice and a bad one, knowing your rights or giving them up, or getting another chance or being cut off at the knees.  At the very least, an attorney can tell you what to expect when all your best laid plans go wrong.

One more point bears repeating, too.  When you choose to represent yourself in bankruptcy, that does not mean that the judge, opposing counsel, the clerk of court, the trustee, or anyone else will step in the help you navigate the court system.  Sometimes  some (or maybe all) of those folks will try to avoid taking advantage of you, but the bottom line is that none of them can act as your representative.  They can’t advocate for you, they can’t tell you what to do, they can’t explain your rights, they can’t tell you what to expect.  Only YOUR attorney can do that for you.  If you are going to file bankruptcy, you don’t just want your own attorney, you NEED your own attorney.

With banrkuptcy, like much of life, you get what you pay for.

 

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Däna (pronounced "Donna") Wilkinson, has been a bankruptcy lawyer in South Carolina for 20 years. She is certified as a bankruptcy specialist by the South Carolina Supreme Court.

Last modified: August 20, 2013