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My lawyer did not show up and my hearing and I was forced to file my bankruptcy alone. Do I have reason to file a complaint?

Los Angeles, CA |

My lawyer and I planned on reaffirming my car loan. After my BK was discharged I noticed my car loan WAS NOT reaffirmed and it was included in my BK.

Attorney Answers 4

  1. Most bankruptcy attorneys in my district (Central Dist. of CA) do not recommend filing reaffirmation agreements. I really can't speak for all LA attorneys and don't mean to, but I do not usually recommend reaffirming a car loan. Have you spoken with him/her? I would reach out to your attorney first b/c your question states that "you were forced to file ... alone" which would imply that he did not file it and his name was not on the paperwork - yes? no? On the other hand if you gave him/her money and they did not complete the task you have a complaint. I'm just not understanding how you were "forced" to file the bankruptcy "alone." You should be able to pay and retain the car. Further, if the Judge doesn't reaffirm the Agreement, it's not reaffirmed. Meaning, even if you filled out the reaff agreement, if the Judge didn't approve / order it, it would not be reaffirmed and you are not on the hook for the debt - your personal liability is gone. However, if you pay and retain the car, you should be okay. Did you sign a client engagement agreement? Is there anything in the Agreement that stated that the attorney would assist but not appear with you? I guess I'm asking if you had some special agreement that wasn't properly clarified before I would recommend filing any complaints. Sorry if this answer is a bit rambling, it's late ;-).

  2. It's extremely rare for an auto lender to want to repo a vehicle that's current on the payments just because you filed BK. You probably did not need to reaffirm the debt as long as you stay current on the payments.
    As for not showing up at your hearing, it sounds like you signed and returned the ReAff to the lender yourself and, because your lawyer didn't sign off on it (and I wouldn't have either) the court set a hearing for you to convince the judge that it made sense to do so. If I did not sign the ReAff, I would not have attended the Hearing either. Although, with some judges, you can have the ReAff denied but receive additional court orders requiring the lender to continue to accept the car payments ... in some rare cases, depending on the lender, that might be a reason to attend the Hearing.

  3. These are 2 different issues. Your attorney should have been with you at the 341 hearing. [FILING the petition would have taken place several weeks earlier.] The reaffirmation agreement is drafted by the creditor, it they did not draft one, there is nothing you can do about it. Just keep making payments on time and creditor will not take your car.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

  4. 1. If you hired and paid a lawyer to do your bankruptcy, and the lawyer did not show up to required hearings, then YES you should complain. Call the attorney first, then the US Trustee's office, then file a complaint with the California State Bar and contact the County bar (LA County?) and demand a fee arbitration too so you can get some of your money back.

    2. After the 9th Circuit affirmed Dumont v. Ford Motor Credit, the old practice of "pay and retain" is NOT legally sound anymore! Creditors are LEGALLY allowed to repossess collateral EVEN IF all payments are timely made if a reaffirmation agreement is NOT timely processed. My experience is that only Ford Motor Credit is making a big deal about this, but EVERY lawyer should at least advise clients of the risk of not re-affirming, especially in the rare situation where FMV > loan balance!

    3. The deadline to file a reaffirmation agreement is 60 days after first meeting of creditors unless an extension of time is obtained before discharge is entered. Therefore, it is already too late for you. Moreover, re-opening a case is expensive (over $250) and is up to the Judge's discretion. Your best bet (and only real alternative now) is to make sure you keep current on the payments and, if you are really worried about a repossession, don't park it where the repo company can find it (e.g., private, enclosed garage).

    Good luck.

    Answers to questions are for general purposes only and do not establish an attorney-client relationship. This is not legal advice, simply information. You SHOULD NOT act on this information without consulting an experience bankruptcy attorney in your area and providing ALL relevant information.

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