One of the first things you learn in law school is: “only a fool has himself for a client”. It truly is hard to imagine a situation that this truism applies more to than filing bankruptcy. Even though individuals might represent themselves in bankruptcy court and file a bankruptcy case without an attorney or “pro-se,” it is quite hard to do so properly. It is critical that a bankruptcy case be planned, prepared and filed properly. The rules are very complex (the Code is over 500 pages long!), and I have seen first-hand many pro-se debtor’s have unfortunately hurt their chances by filing them selves. If you think filing bankruptcy is as easy as filling out some forms, paying a fee and then making one appearance in the courtroom, you’re putting your case at risk.
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, aside from the common Federal rules that apply to every case, you’ll find “local” rules and customs, that vary from trustee to trustee: Only an experienced Bankruptcy lawyer can guide you adequately. If you make a mistake and your bankruptcy petition is dismissed, it is going to likely set you back several hundred dollars extra to reinstate it. Somewhere around 50% of pro-se filings get dismissed! There are 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.
Contrary to popular belief, Debtors will have to list all assets and all debts in their bankruptcy schedules; you don’t get to pick and choose or leave a credit card out for a rainy day. If a debt is unlisted, it is possible the debt will not be dismissed. The judge may also deny the discharge of all debts if a debtor does something dishonest in connection with the bankruptcy case, such as destroying or concealing property, falsifying records, or lying. Did you know transferring some of your property to a member of the family before filing may constitute fraud? Additionally, individual bankruptcy cases are arbitrarily 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 a choice between “New York” exemptions or “Federal” exemptions, dependant upon the nature and number of assets of the debtor. Now there are “wildcard” exemptions, that 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 could eventually be owed some money. You’ll need a skilled, aggressive litigator who knows how to handle them. In the instance that your case faces objection, the pro-se filer’s lack of knowledge of responding to an Objection to Exemptions or to an Objection to Discharge may be destructive. Property loss or case dismissal may occur, both of which usually are avoided when an experienced attorney is handling your case. Some people shouldn’t file Chapter 7 but should file Chapter 13instead. This isn’t always an obvious decision. There are many factors that come into play, i.e. income, expenses, assets, and unusual circumstances that are particular to each and every filing. Meeting with a skilled bankruptcy lawyer will put you in the proper direction to ensure that you are filing under the right Chapter.
You might need to file Bankruptcy, but feel you are unable to afford to retain a lawyer. There are non-attorney petition preparers who solely type your information on bankruptcy forms. However, please be cautious here. Even though Petition preparers may charge cheaper than an attorney, they’re barred legally from supplying legal counsel. They can not explain how to answer legal questions or help in bankruptcy court. So even if you save a few dollars in filing, it is very often that your case could be in danger by using these services.
In sum, bankruptcy laws are really complex and so are best approached using the legal experience of a reliable bankruptcy attorney. Each case has its own subtleties, so working with a bankruptcy attorney that knows the best way to represent your specific interests to obtain the most advantageous terms in your case is crucial to a effective filing.
Visit Long Island Bankruptcy Advice to learn more about Long Island bankruptcy and to hire a Long Island bankruptcy attorney.