12 Jul Should I Get A Bankruptcy Attorney?
Should I represent myself in a Bankruptcy is the all time question people ask themselves when considering bankruptcy. Is this a silly question? Absolutely not because Congress has mandated that attorneys inform you that you have the absolute right to represent yourself. 11 U.S.C. 527(b) of the Bankruptcy Code specifically states: “If you decide to seek bankruptcy relief, you can represent yourself, you can hire an attorney to represent you, or you can get help in some localities from a bankruptcy petition preparer who is not an attorney. THE LAW REQUIRES AN ATTORNEY OR BANKRUPTCY PETITION PREPARER TO GIVE YOU A WRITTEN CONTRACT SPECIFYING WHAT THE ATTORNEY OR BANKRUPTCY PETITION PREPARER WILL DO FOR YOU AND HOW MUCH IT WILL COST. Ask to see the contract before you hire anyone.” If you represent yourself you will be called a Pro Se Debtor.
So you have asked the question, now what should the answer be? It depends. As an attorney who focuses on bankruptcy I can tell you that the interpretation of the law changes very frequently. So what the standard was a month ago or even a week ago may not hold true today. How does this affect you? When you represent yourself you are held to the same standard as an attorney. Meaning that you MUST be aware of what the local rules and case law are for a particular court. DO NOT MAKE THE MISTAKE BELIEVING THAT JUST BECAUSE YOU ARE PRO SE THE JUDGE WILL GO EASY ON YOU. Although most judges maybe sympathetic towards the pro se debtor, they and you are required to follow the law. Meaning the judge will not hesitate to dismiss your case if you have not followed the law.
If you were getting ready to have surgery would your perform surgery on yourself? Probably not. Why? Because one you would have to be under anesthetic and therefore unable to perform the surgery. Or in the alternative and more reasonable notion, you would not perform the surgery because you are not trained in surgery or perhaps medicine at all. Even physicians do not treat themselves for the most part. Why? Because you want a third party with a clear head reviewing your case that can look at it from every angle. The doctor who treats himself has a fool for a patient. The attorney who represents himself has a fool for a client. Here is an article that explains to attorneys why they should not represent themselves even if they went to law school and passed the bar.
This is not saying that all pro se debtors do a bad job. There are those that file their own Chapter 7 and 13 cases. Out of that bunch some of the pro se debtors do an excellent job of representing themselves. I would even go so far to say that they give the attorneys a run for the money. But many do not do an adequate job. It is not because they did not read the free information or did not do the research or even that they do not have the intelligence to file. It is simply because they are not trained in doing bankruptcy cases and do not work every day in this area of the law.
Did you know that if you are not married you cannot file a case together? Clients of mine did. They filed because a petition preparer prepped the case telling them that they could could file together to save money and they were representing themselves. Not only did we have to dismiss one of the parties we had to file an emergency motion to save one of the homes due to a deadline that had passed. These clients are not stupid by any means but they are young and not trained in bankruptcy. The boyfriend did not even need to file but now has a dismissed bankruptcy on his credit report for ten years. One of my husband and wife cases filed together. They are married and could file together but the husband did not need to file because none of the debt was in his name. They filed together because someone had told them that they had to. Case was dismissed and we only re-filed for the wife who carried the debt. We were able to save these two cases but they are others who have lost homes, cars, or other assets because they did not understand everything about bankruptcy.
Do you understand Joint Tenancy by the Entirety? Does it affect your case? Do you live in a state that is a judicial foreclosure or are you a non-judicial foreclosure state? Are your taxes that are due and owing eligible for discharge? Is your mutual fund protected as an IRA? Do you have an exemption available in your state to protect next year’s tax refund? Do you have an inheritance? Is any one about to pass and you may inherit money? Did you transfer money in the last year to a family member? How much equity do you have in your car or your home? Is your dog worth any amount of money? Do you know the credit counseling and financial management requirements? Do you know what it means when the US Trustee files a 707(b) motion? Do you know how to answer discovery requests? Do you know what discovery is?
If these issues in the last paragraph make you nervous than you probably should not file the case by yourself. Bottom line whether it is medicine, law, plumbing, electrical, etc… when you attempt to do certain things in life in order to save money it may cost you more than you were trying to save. In the article above regarding the physician treating himself, it cost him his life. In bankruptcy you can lose your home, your car or your freedom if you do not know what you are doing.
If you are solely filing a bankruptcy case pro se because your back is against the wall and you cannot afford an attorney, check out your local Legal Aid Organizations for possible assistance. At the very least contact an attorney near you for a consultation. Mr. Lieferman wanted to represent himself pro se. As a result of his self representation the Court has issued a $3.7 million dollar judgment against him. Paying an attorney for an initial consultation may be less expensive than filing pro se .