by Greg Tolland
One of the primary facts you learn during law school is: “only a fool has himself for a client”. It can be difficult to imagine a scenario that this truism applies more to than filing bankruptcy. While most people may represent themselves in bankruptcy court and file a bankruptcy case without an attorney or “pro-se,” it is very difficult to do it effectively. It’s really important that a bankruptcy case be planned, prepared and filed properly. The laws are very complex (the Code is over 500 pages long!), and I have witnessed first-hand many pro-se debtor’s have sadly damaged their chances by filing by themselves. If you think filing bankruptcy is as easy as completing some forms, paying a fee and then making an appearance in court, you’re putting your case in danger.
Whenever you file a bankruptcy case by yourself, you’re held to the same exact standards as an attorney. “I didn’t know” won’t save your case and it won’t save you from being charged with perjury. Many cases of pro-se filers are dismissed for all kinds of reasons, making what might have been a painless, successful filing, considerably more complicated and possibly catastrophic. Allow me to share the specific reasons you mustn’t go it alone: A pro-se debtor’s case could be postponed or dismissed for failure to file a necessary document, for instance a copy of their petition and supporting paperwork to the trustee prior to the 341 Hearing. Meeting deadlines is an important factor in a successful filing. Overwhelming pressure to meet deadlines could cause your petition and other forms to be incomplete or worse, inaccurate, further delaying the process, and triggering other more complex, court measures.
In addition, besides the general Federal rules that apply to every case, you’ll find “local” rules and customs, that differ from trustee to trustee: Only an experienced Bankruptcy lawyer can direct you adequately. If you make a mistake and your bankruptcy petition is dismissed, it’ll likely cost you hundreds of dollars extra to reinstate it. Roughly 50% of pro-se filings get dismissed! There are also restrictions in place that prevent “serial filers.” They may impede you from refiling. You could end up with a bankruptcy filing on your credit record and no relief.
Waiting through numerous 341 Hearings, the most common and possibly damaging mistakes a pro-se debtor might make is not being aware of what is considered “legal title” to assets. Should your name is on a car title or on a bank account, it’s considered your asset for bankruptcy purposes! It does not matter that it might be the car your daughter drives and pays for, or that the bank account is all your mother’s money and you’re a co-signer “just in case.” These are going to be viewed as part of your filing. This idea is essential, as I have personally seen pro-se debtors forfeit assets they otherwise could have kept, with a bit of simple planning. Most debtors will need to prepare a “means test”. This is a really difficult 6-page calculation, a lot like preparing a tax return, which is a detailed assessment of your income and expenses. It is so complex that a lot of attorneys use specialized software to ensure that it is done correctly. Preparing this form is essential to a successful filing. Calculating the means inaccurately can have dire consequences: dismissal of case or transfer of a Chapter 7 (liquidation) case to a Chapter 13 (repayment plan) case.
Surprisingly, Debtors will have to list all assets and all debts in their bankruptcy schedules; you don’t get to pick and choose or give a credit card out for a rainy day. If a debt is not listed, it’s possible your debt will not be dismissed. The judge can also deny the discharge of all debts if a debtor does something dishonest in connection with the bankruptcy case, for example destroying or concealing property, falsifying records, or lying. Are you aware that transferring some of your property to a relative before filing may constitute fraud? Moreover, individual bankruptcy cases are randomly audited to discover their precision, truthfulness, and completeness of the information that the debtor is required to provide. Under Bankruptcy Law, several assets are “exempt” fully (i.e., retirement accounts) or as is more common, exempt up to a specific amount (i.e. Home, car, cash in the bank). In New York, it’s not always a simple process to find out what is exempt, as there is now an option between “New York” exemptions or “Federal” exemptions, dependant upon the nature and variety of assets of the debtor. Now there are “wildcard” exemptions, which can be applied to almost any asset, it is critical to apply these correctly.
Without the assistance of a qualified attorney, you could forfeit a priceless asset. For instance, in New York, should you file Chapter 7 bankruptcy, your car is protected provided you have less than $4000 equity in it. Should you have more equity than that, you may lose your car. Do you own an RV, boat or second vehicle? You could lose them in a bankruptcy, unless you have taken the proper steps to avoid it from happening. An experienced attorney knows how to deal with these types of scenarios before you file. An additional change instituted in 2005, was the credit counseling requirement. A course needs to be completed both prior to filing and prior to discharge, and then to file a statement of compliance and a certificate of credit counseling furnished by the provider. Failure to do so may lead to dismissal of your case. This is routinely provided by an experienced Bankruptcy attorney (our office sends you links automatically), but not so easy to set up by yourself.
Although rare, creditors have the right to challenge your filing, which means they may eventually be owed some money. You will need a skilled, aggressive litigator who knows how to deal with them. In the instance that your case faces opposition, the pro-se filer’s lack of knowledge of responding to an Objection to Exemptions or to an Objection to Discharge may be disastrous. Property loss or case dismissal may occur, both of which are generally avoided when an experienced attorney is handling your case. Most people shouldn’t file Chapter 7 but should file Chapter 13instead. This isn’t always an obvious decision. There are several factors that can come into play, i.e. income, expenses, assets, and unusual circumstances that are particular to each and every filing. Meeting with a certified bankruptcy attorney will put you in the correct direction to ensure that you are filing under the right Chapter.
You might have to file Bankruptcy, but believe you can’t afford to hire a lawyer. You can find non-attorney petition preparers who solely type your information on bankruptcy forms. Nevertheless, please be careful here. Although Petition preparers could possibly charge cheaper than a lawyer, they’re barred legally from providing legal services. They can not explain how to answer legal questions or help in bankruptcy court. So although you may save a few bucks in filing, it is very often that your case may be at risk by using these types of services.
In sum, bankruptcy laws are quite complex and so are best approached using the legal expertise of a professional bankruptcy lawyer. Each case features its own technicalities, so working with a bankruptcy attorney who knows how to represent your specific interests to achieve the most valuable terms to suit your needs is crucial to a effective filing.