Skip to main content

Can we switch attys in middle of chapter 13

Chillicothe, OH |

first we are unhappy with our atty...is it possible to get a new one...secondly i worked a yr on getting modification for home mortgage..was granted july 2012...trustee pyt not reduced yet!..just received a notice of modifying pyt..trustees office wanting from 1% to 100% on plan... we are lost atty not responding .... any ideas on what this means and what we should do?

Attorney Answers 5

Posted

1). Yes you can switch attorneys, it's your case, you control it. Whether it is advisable to do so or not is another matter. 2) Since your mortgage was modified, that presumably means that your mortgage payment has gone down. The amount you had to pay your unsecured creditors back was determined, in part, on how much you owe on your mortgage. For instance, if your mortgage payment went from $1,000 to $500 each month, presumably you would have an extra $500 in disposable income each month that could be used to pay your creditors. The trustee is going to want at least some of this money to go towards your unsecured creditors. That's why your plan is increasing to a 100% plan. 3) There is no excuse for your attorney to not to be responding to your legitimate questions. I would contact him/her again. If they continue to ignore you, you can tell them you're considering contacting the state bar.

Keeping in mind that I have no idea what your financial situation is, if the modification has allowed you to keep your home and cure any arrearages owed, you might ask your attorney if you qualify for a conversion to Chapter 7 where you would not have to make payments to your unsecured creditors. Your attorney should be able to advise you on this.

Hope this helps and best of luck!

The information provided in this post is not "legal advice." Rather it is general information on common legal issues. If you have questions concerning your specific situation, it is always best to consult an attorney in your area.

Mark as helpful

11 lawyers agree

Posted

Your bankruptcy case is definitely yours. Your attorney, like all attorneys, is simply your servant. If your attorney is not responding to you then perhaps you need one who will. Contact your local bar, or use Avvo, to find some names of good bankruptcy attorneys.

This answer does not create an attorney-client relationship.

Mark as helpful

10 lawyers agree

Posted

Yes, you can switch attorneys in the middle of a Chapter 13. Should you? Depends. First of all, are you sure your expectations about your plan payment going down are realistic? If you've cut your mortgage payment, you may have more money to pay back the Chapter 13 trustee, not less. Second, it's possible your lawyer isn't getting your messages. Have you written a letter?

Finally, even if you have good grounds for switching, consider that the bulk of the work for the Chapter 13 has been done. The papers drafted, the budget proposed, court hearings attended, and presumably, the case is confirmed. A new attorney may have concerns about getting paid, and to do what work, exactly? Submitting a motion to modify your plan payment, as indicated above, may actually end up hurting you if your payment goes up.

Maybe you should try to sit down with your attorney, and start with a polite letter asking for 20 or 30 minutes to go over things.

I hope this helps, and good luck to you.

Remember to mark "best answer."

This answer does not create an attorney-client relationship between you and I. I am not your attorney unless we both sign a written contract that describes our relationship and terms of the representation. Any information provided to you here is not a substitute for the advice you need to pursue any legal matter. I advise you to retain the services of a local attorney before taking any legal action in this matter.

Mark as helpful

8 lawyers agree

1 comment

Hale Andrew Antico

Hale Andrew Antico

Posted

ps: The 1% to 100% trustee request may be due to liquidation issues that have nothing to do with your mortgage change. Speak to your counsel.

Posted

You can switch attorneys post-confirmation but for a variety of reasons attorneys are often hesitant to take cases on once cases have reached that stage. Just because you received a mortgage modification does not necessarily mean that your plan payment will go down: There may for example simply be more money available now fo your unsecured creditors. I do agree that you need clarity on this issue. If the attorney has been non-responsive for years now, I would recommend setting up an in-person consultation with a local Chapter 13 Bankruptcy attorney. I would use the National Association of Consumer Bankruptcy Attorneys web site to find an attorney who has been practicing bankruptcy for at least ten years. It actually may be money very well spent to pay that attorney for at least an hour of her time so that she can actually spend the time to look at the case online and come to a meaningful determination of whether there actually is room to modify your plan payment.

Please consult an attorney who is licensed in your state to evaluate your case if you have any questions at all. This communication does not in any way create an attorney client relationship.

Mark as helpful

11 lawyers agree

Posted

It sounds like you achieved a long term reduction in your monthly mortgage payment while you had a Ch 13 confirmed Plan that included a low percentage to be paid to general unsecured creditors. From your facts, it appears that the Ch 13 Trustee is taking (rightfully) the position that the extra money you will save over the remaining months of your plan should be paid into the plan so that the general unsecured creditors will get paid more. As you go forward in a Chapter 13 Plan, unfortunately your income remains under the Court's jurisdiction. In our District, with a large reduction in ch 13 filings the past 24 months, the Trustee has started sending out audit letters to Debtor(s)' lawyers requesting updated tax returns and pay stubs, looking to get a raise in what started in a low monthly payment. The light at the end of the proverbial tunnel lies in the fact that if you were given a permanent loan modification, you will enjoy the benefits soon of all of your debts being resolved (except long term secured debts and non-dischargeable debts like most student loans and most income taxes), while having the permanent lower payment. Best way to get your attorney to get back to you quickly is to send via U.S. Mail a letter briefing stating the issue and requesting a call back, in a civil tone. Bankruptcy Attorneys can lose days while wrapped up in resolving more pressing issues (clients with wage garnishments, Court hearings, Trustees demanding documents, U.S. Dept of Justice issues or inquiries on cases, audits, tax issues, office issues, etc). Your lawyer most likely has some other temporary issues tying him or her down. Give your lawyer a chance to look at the case, and via phone conference call (like on a Friday afternoon or Saturday morning when its calm at the lawyer's office), you can have a conversation of substance about whether there is any move you can make. You should accept the possibility that the money you will save on the loan mod will have to be paid into the plan.

this answer should not be considered as legal advice, only as informational purposes to encourage the Questioner to seek the assistance of a qualified attorney wherein these issues, and any others, can be fully worked through between Attorney and Client. No Attorney Client Relationship is created with Ryan Legal Services, Inc., its attorney(s) or agent(s) who have answered this Question, unless a separate written Fee Agreement is executed between the parties for legal services.

Mark as helpful

4 lawyers agree

1 comment

Kevin Michael Ryan

Kevin Michael Ryan

Posted

another attorney taking over the case would also result in the attorney requesting a retainer fee against costs/time, and your having to sign an attorney fee agreement to cover any overage on attorney time and costs. If you otherwise like your current lawyer and he or she has overall worked hard for you under the circumstances, don't make the mistake of cutting the lawyer loose, only to get stuck with more fees and a lawyer who ultimately will have to concede that you actually did have to pay more into the plan in the first place. Get that phone conference call set up with the current attorney and keep an open mind. We aren't miracle workers and you are better off with someone who will tell you the landscape on your case truthfully, even if it is unpleasant.

Bankruptcy and debt topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics