Bankruptcy Attorney: Do You Need One And What To Expect?

Posted by Skyseo Roundtable on March 10th, 2023

SO, DO I NEED A LAWYER TO FILE A SIMPLE BANKRUPTCY CASE?

Your longtime clients name to inform you they are struggling economic troubles and they agree with they want to record a simple, directly-forward financial disaster case. The clients further suggest you that when having completed some online research, they're conscious that there's an opportunity to hiring an “expensive bankruptcy attorney” and this is to hire a “petition preparer,” an entity mainly legal through the Bankruptcy Code to prepare a financial disaster petition on their behalf and accordingly enable them to shop a major portion of the budget otherwise required to pay an legal professional for his offerings. What do you tell them?

Any advice to the clients need to start with the very basic proposition that a bankruptcy petition preparer, described as “someone, aside from an attorney… who prepares for repayment a record for [bankruptcy] submitting,” won't “offer a capacity bankruptcy debtor any prison advice.”1 Accordingly, if they're going to are searching for as an opportunity to keeping a legal professional, using a non-attorney financial ruin petition preparer, not most effective will they not receive any prison advice but the rendering of such legal recommendation would violate bankruptcy law, may also make the preparer responsible for fines, penalties and damages which includes affordable attorney’s fees,2 and can constitute a violation of Federal criminal law.3
One would possibly assume the clients to ask in reaction, “Well, can we actually need criminal recommendation if we're simply going to be filling out a chain of papers with the records the courtroom calls for’? The solution to that question may obviously depend on the extent of sophistication of the customers. However, it is able to be secure to assume that the clients can be less state-of-the-art then they believe they may be. Appropriate criminal advice should begin with the following questions: First, is financial ruin the satisfactory alternative for the clients to deal with their financial issues? There are various alternatives to bankruptcy. Next, insofar as there are various chapters which might be available to a debtor, which bankruptcy fine accomplishes the debtors’ objectives? To answer each of those essential questions is to render legal advice. Unless your customers are simply certain of the answer to each of those questions, they may now not be capable of gain such answers from a petition preparer.

The case law is apparent that a petition preparer might not propose the debtor as to the proper chapter below which he should record.Four However, for functions of this evaluation, allow us to assume the debtor is assured as to the appropriateness of a submitting of a bankruptcy petition because the nice alternative to cope with his financial problems and has in addition decided to record a Chapter7 liquidation case. The next question the petition preparer can not answer is whether any of the debtor’s belongings are at hazard. There are numerous bodies of regulation that permit a debtor to shield certain of his belongings from creditors. These are normally known as “exemption” statutes. However, it is truely clear that a financial ruin preparer may not render any recommendation as to the supply of exemptions. Such criminal advice is expressly proscribed underneath the Bankruptcy Code.Five Certainly it'd be not anything quick of a disaster if the debtor became pressured to deliver to his Trustee appointed by using the Court for the benefit of his creditors, assets that he never counted on dropping when he selected financial disaster because the automobile to solve his debt issues.

Under the 2005 Amendments to the Bankruptcy Code, an individual debtor is required to take a credit score counseling direction as a pre-situation to financial ruin eligibility. If one does not take the course earlier than filing, his case is situation to dismissal.6 However, over again the case regulation is apparent; educating a purchaser as to the need for credit counseling constitutes bankruptcy recommendation, again prohibited by financial disaster regulation.7
To report for financial ruin, a sequence of files have to be filed with the courtroom. These in large part consist of a bankruptcy petition, helping schedules, a Statement of Financial Affairs, a Statement of Current Monthly Income and Means Test Calculation and “Statement of Your Social Security Numbers.” These need to be correct and complete and the debtor is required to swear or verify the truth under penalty of perjury. The first issue a debtor need to do in reference to those papers is to list all of his belongings and efficaciously replicate the value thereof. Certain property are blanketed (are exempt) as much as positive economic thresholds. If the cost of the asset is extra, the Trustee might also sell the asset for the benefit of creditors, remitting to the debtor only the amount blanketed by the exemption statute. The preparer can deliver no recommendation as to how a lot is blanketed and he additionally can not advise the clients whether to pick, as is their choice,nation or Federal exemptions.8 Moreover, the preparer can not even deliver recommendation as to the proper wellknown to make use of to price the scheduled asset. Is it liquidation price? Is it replacement fee? Is it the quantity the debtor had to pay to gather the asset? These questions can't be responded by the preparer with out violating the law.

Next, the debtor is required to listing all of his creditors in the right classes wherein they fall. To do so, the Debtor must have the ability to differentiate between secured claims, priority claims and fashionable unsecured claims. Case regulation is apparent that a petition preparer can supply no advice with respect to the right categorization of money owed.Nine Sometimes, whether or not an obligation is a debt at all is not definitely clean. For instance, when a consumer takes a loan from a tax qualified retirement plan, is the duty to pay off that mortgage a debt? A petition preparer may not deliver that legal advice.10
The debtors’ schedules require them to outline their income and fees on a modern-day basis. There are outcomes if those schedules are improperly completed. For instance, if the debtors leave out a number of their expenses and thereby display that at months’ cease they have got surplus earnings, the Court can also determine that they ought to be repaying their lenders in an alternative bankruptcy intending over time, in place of obtaining a discharge without paying whatever on their claims as is the case in Chapter 7.  A petition, preparer can provide no advice when finishing the schedules of income and prices.

The Statement of Financial Affairs is an vital report which offers to the Trustee and the creditor frame, exact history records that would deliver upward thrust to various moves via the Trustee to get better assets and to investigate whether suits may be added to convey property into the financial ruin property. Typically, an legal professional will recommend a proposed debtor as to the results of diverse of his solutions to the questions posed in the Statement of Financial Affairs. However, a petition preparer is neither sufficiently knowledgeable nor authorized to offer legal recommendation as to the of completion of this form. An uninformed consumer ought to cause accidental lawsuits in opposition to pals and spouse and children due to facts provided inside the Statement of Financial Affairs.

The Statement of Intention which need to be filed as one of the respectable bureaucracy calls for the debtor to take a position with admire to whether he wishes to reaffirm mortgage responsibilities and automobile loans, and whether he wishes to hold to honor or disclaim vehicle rentals. Once again, there are very awesome our bodies of regulation governing a debtor’s duties with appreciate to the of completion of this shape, and whether and beneath what occasions he's required to reaffirm his loan responsibility to maintain his right, to hold the loan in pressure and impact. Similarly, there are implications to timely finishing this shape to preserve or give up rights in automobiles. It is almost positive that a petition preparer will now not be versed inside the felony nuances governing  the completion of this form. Moreover, he absolutely has no criminal authorization to opine on how it have to be completed.

In 2005, the Bankruptcy Code become amended beneath the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Public Law 109-eight. These amendments included the

advent of the so-known as “Means Test” to determine the debtor’s eligibility to report a ‘Chapter 7 petition. The Means Test, amongst other matters, calls for a complex calculation of “Current Monthly Income” based totally upon a debtor’s last six months earnings and presents

sure specific deductions there in opposition to, regularly no longer bearing any dating to the debtor’s actual prices, to determine whether the debtor is eligible to record a Chapter 7 petition. The proper of completion of the Means Test is hard even to financial ruin attorneys who report a couple of Chapter 7 instances in a route of a year. It is improbable that a petition preparer ought to even deal with some of the nuances involved. Certainly, to the quantity that he attempts to ‘he will be rendering unauthorized legal recommendation. 

Finally, the Bankruptcy Code is specific that a preparer can't collect or acquire any price from or on  behalf of the debtor “for the court docket charges in connection with submitting of the petition.”11 Thus, the petition preparer can't even document the petition on behalf of the debtor. In this era of digital submitting, this hindrance creates a vast inconvenience and

obstacle to debtors’ expedited submitting of papers with the Bankruptcy Court.

As the legislative records to §one hundred ten makes crystal clean, to operate inside permissible pointers, a financial disaster petition preparer is little if something extra than a typist (‘whilst it's far permissible for a petition preparer to provide services entirely constrained to typing, a long way too a lot of them also try and offer prison advice and prison offerings to the debtors.”).12 While in practice many petition preparers pass beyond the constraints of the statute, now not simplest is this unlawful, however it subjects the preparer and his client to research via the Office of the United States Trustee, the watch dog of the manner. Your clients do no longer want to face the capacity anxiety and uncertainty even as a U.S. Trustee examines them as to their ability unlawful courting with the preparer. Just as importantly, any recommendation, albeit improperly given, will now not be as sound as ‘that being rendered with the aid of an experienced financial ruin lawyer. Finally, it ought to be cited that properly undertaken, in maximum instances, an attorney’s illustration in a customer financial ruin want no longer be an expensive project. It may very well be that the overall prices charged by using an skilled financial disaster legal professional may additionally quantity to no longer very lots extra than that charged by using a non-attorney preparer.

Robert L.Pryor is a associate and founder of the “Westbury law company of Pryor & Mandelup, L.L.P., concentrating In financial ruin, reorganization and insolvency-associated litigation. Mr. Pryor is past Chairman of Bankruptcy Committee of the Nassau County Bar Association.

1. See 11 USC § 110(a)(1) and 11 USC § one hundred ten(e)(2) (A).
2. See 11 USC § one hundred ten(i)
three. See 18 USC § 156
four. See US Trustee v. Costello, (In re Rankin) 320.. BR,171 (Bankr.D. Mont. 2005); In re Guttierez, 248 BR. 287 (Bankr. W.D. Tex. 2000).
Five. See In re.Gross, 2009 Bankr. LEXIS 2761. (Bankr. E.D.Va. 2009); In re Brummitt, 323.BR 522. (Bankr. MD. Fla. 2005).
6. See eleven. UBC §109 (h)(1).
7. See In re Martin, 424 BR 496 (Bankr. D.NM.2010).
8. See In re Bonarrigo, 282 B.R. One hundred and one (D. Mass 2002)
9. See Bonarrigo, 282 B.R. At 101.
10. See Taub v. Weber, 366 F. 3d. 966 (9th Cir,2004).
Eleven. See eleven USC § 110(g).
12. House Report No. 109-31, PT 1, 109th Cong.,1st SESS sixty two-63 (2005); See also Taub v. Weber, 366F.3d at 966;-Guitierrez, 248 B.R. At 237.