Bankruptcy Filings On Your Own Can Be Risky
Not using an attorney to file a bankruptcy can cause problems
Most individuals have limited contact with the law. Other than an occasional traffic tickets, few people are called into court and become familiar with courts and their procedures. And when they do, most rely on attorneys for representation. However, bankruptcy is one area of the law where many people attempt to navigate the system on their own, and they file "pro se."
Some pro se parties may be concerned with the paperwork necessary when filing abankruptcy, as it can be complex. In lieu of hiring a bankruptcy attorney, they may use a petition preparer to assist with assembling their bankruptcy petition documents and the required financial schedules.
Did you claim all of the correct exemptions?
One man did this when filing his Chapter 7 bankruptcy. His situation became more difficult and complex due to his estranged wife living on some property that he had failed to claim an exemption for during the filing process. The Chapter 7 trustee moved to sell that property since it was not claimed as exempt, which would have protected the equity.
This error led to the debtor's attempt to convert the Chapter 7 into a Chapter 13, to which the Chapter 7 trustee objected. The debtor, in his filings on this motion, complained that his petition preparer had advised him poorly regarding this conversion.
This led the bankruptcy court to ask the preparer about his activity, as it would constitute the unauthorized practice of law, as he was not a licensed attorney.
Would you know how to convert Chapter 7 into a Chapter 13?
The preparer then stated he had assisted in the conversion motion, which would have been "practicing law." He later claimed that that was a typo caused by his wife and that he had only worked on the initial petition filings.
The bankruptcy court fined the preparer $500 and ordered him to disgorge the $200 fee he had been paid for the petition preparation. He appealed and the reviewing court found that he had been denied due process rights because he was not present when the bankruptcy court held a hearing on the issue of the conversion motion.
This denied him the right to cross-examine the debtor and question his credibility. There were also problems with the evidence or actually, the lack of evidence the bankruptcy court relied on in its ruling.
The statements made by the debtor were not sworn testimony and therefore not competent evidence in court. This coupled with the lack of the accused preparer meant the court had no real evidence on which to base its ruling.
If all of this sounds confusing, it points to one reason it is worth your time and expense to hire a bankruptcy attorney when filing for protection from your creditors. Bankruptcy procedure can be complex even in a simple bankruptcy and when something happens that you do not expect or understand, as occurred in this case, you may be ill-prepared to deal with the consequences.
At Illini Legal Services, we offer a free, no-obligation consultation to each of our clients. During your consultation, we will take the time to listen to your financial concerns and assess your case and individual situation. We have five locations to serve you. Contact us today for help!
Illini Legal Services is engaged in the private practice of law and is not a public legal aid agency. We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.