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I filled chapter 7 almost 3 years ago and my attorney did not file a motion to avoid lien on debetors exempt property.

Portland, OR |

I am now trying to refinance and they are saying that my home has a judgement lien on it and they want me to pay, but thats why i filled in the first place. was it my attorneys responsibility to file that paper and should i have to pay him to do so over the amount of the filing fee?

Attorney Answers 7

  1. Depends on what your written agreement with the lawyer said.

  2. If you still have a copy available, read over your fee agreement. Motions to avoid liens are often not covered by standard chapter 7 bankruptcy fee agreements and require paying your attorney additional fees. That said, this is an issue that your attorney should have identified, discussed with you, and taken action to handle. The first step in figuring out what happened is to contact your attorney.

    My answer is for only informational purposes and is not legal advice. I am licensed to practice law in Oregon and I recommend contacting a local attorney for the best help with your legal questions.

  3. Because motions to avoid lien are rarely included in the flat fee for a Chapter 7 Bankruptcy, it would likely be completely appropriate for an attorney to bill you for doing the motion.

    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.

  4. All counsel offer great advice. It is highly dependent on what your agreement with your attorney included. Good luck!

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.

  5. You should look and see what your original fee agreement said. In my fee agreements, judicial lien avoidances are separate from a standard Chapter 7 filing. You will likely have to pay the $260.00 filing fee to reopen the case as well as some additional fees for drafting and serving the avoidance motions.

  6. Hang on, now, your attorney still had the responsibility to talk to you about this issue regardless of what your fee agreement says. Sure, you may have had to pay more to get it done, but that doesn't mean the attorneys gets a pass on not informing you.

    If your attorney never mentioned it, the attorney may have missed it. If the attorney missed it, didn't inform you, and now you're losing your house as a result, the attorney may have malpracticed, regardless of the fee agreement.

    It's more likely there may have been more equity in the house than you realize and the attorney didn't mention it because it wasn't applicable in your case. Or maybe the attorney mentioned it in a letter and you're blanking on it -- you may want to go over all your prior communications.

    You'd have to bring the whole thing in to a lawyer to have it analyzed. I'd call a plaintiff's attorney who specializes in malpractice and see what s/he thinks. Many will evaluate a case for free, or for a small fee. Call the Oregon State Bar for a referral to this kind of malpractice attorney.

    Take care,

    You are not my client and this answer is not meant as legal advice -- it is for general knowledge only. If you want expert advice that is legal advice, you need to make a private appointment with an attorney skilled in the area of practice that pertains to your question.

  7. Most Chapter 7 fee agreements are for the basic bankruptcy proceeding. A Motion to Avoid a LIen is a separate "a la carte" type of service that is in addition to the original bankruptcy fees. I agree with the other attorneys that you need to check your retainer agreement but I'm pretty sure it doesn't cover this.