DO I NEED AN ATTORNEY TO FILE A BANKRUPTCY?
This is a common question that is asked by potential clients. The short answer is “no”. Bankruptcy law does not require that a debtor have an attorney in order to file a bankruptcy case. However, the Bankruptcy Court clerk’s office is not permitted to give legal advice to anybody who files a bankruptcy case, or is a creditor. In addition, the Bankruptcy trustee acts on behalf of the creditors, and many times may have an adverse interest to that of the Debtor. As a result, a debtor who files a bankruptcy petition “pro se” often finds that there are no resources to consult if a petition is not prepared accurately, or if there is opposition from the trustee or creditors.
Why is it helpful to have the assistance of an attorney in filing a bankruptcy? Here are some reasons:
– Deciding on what type of case to file. Are you trying to save a house from foreclosure? Or are you trying to keep a car from being repossessed? Or are you trying to stop a wage garnishment? Different types of bankruptcy offer different types of relief, and filing the wrong chapter of bankruptcy may not provide the protection or relief that you were seeking.
– Accurate petition preparation. The most common mistake by a pro se debtor is the failure to list all of their assets and debts. Failure to list an asset (such as a bank account, potential lawsuit, or retirement plan) can result in the loss of that asset, or even the denial of a bankruptcy discharge.
– Exemption planning. Bankruptcy law does allow you to exempt (protect) certain assets. However, if exemptions are not claimed, or are claimed improperly, a pro se debtor may forfeit property that they would have been able to keep.
– Adherence to deadlines. Personal bankruptcy cases have many requirements that are time sensitive, and failure to provide the required information by these deadlines will result in the dismissal of your case.
– Negotiating with creditors. Creditors do have the right to oppose or object to the filing of a bankruptcy case, or their treatment in a bankruptcy case. In addition, there may be debts that you wish to maintain, such as a car payment or house payment, that require the execution and filing of a reaffirmation agreement.
– Representation in court. A bankruptcy attorney will accompany you to court, and let you know what to expect during your testimony.
– Motion filing. In addition to the preparation of the bankruptcy petition and representation in court, a bankruptcy attorney can file all necessary motions to protect assets after the bankruptcy case is completed. While a bankruptcy filing will stop any lawsuits that are pending at the time of filing, separate motions must be prepared and filed to avoid any liens created as a result of the lawsuits.
As I have explained to many clients in the past when asked if they needed an attorney to file a bankruptcy, “I could pull my own teeth if I wanted to, but I would rather pay a dentist to do it.” Unfortunately, by the time that a pro se debtor realizes that they need an attorney, it may be too late to fix the problems that could have easily been avoided with the assistance of an attorney before the case was filed.