What qualifies as bankruptcy malpractice? I think I may need a lawyer to help me on my Chapter 7 case.

Asked almost 2 years ago - Long Beach, CA

I believe my bankruptcy attorney did a horrible job representing me. I told him I wanted to keep my house, which I eventually lost, so he put me in a Chapter 7. Then when the Trustee moved to sell my house, my bankruptcy attorney did not even bother to defend against that action. Was this proper representation or do I have a claim?

Additional information

Does anyone know of a malpractice atty that handles BK cases?

Attorney answers (4)

  1. Matthew Scott Berkus

    Contributor Level 20


    Lawyers agree

    Answered . Right or wrong, successful malpractice claims against bankruptcy attorneys are rare. What happens to a debtor inside and outside of bankruptcy is nearly entirely dictated by the debtor's circumstances. So, what an attorney does or does not do rarely changes the outcome. The problem many client's have is that the attorney fails to fully explain something, which may be an ethical violation and can be raised with the state bar association, but rarely, does that situation rise to malpractice.

    For example, if a debtor is behind on her house payments and cannot afford the mortgage payment, the debtor will lose the house regardless of what the attorney does or does not do.

    As for defending against the trustees action, I would suggest reviewing your fee agreement with the attorney. In chapter 7 bankruptcy, it is fairly standard practice that attorneys limit their representation and do not prosecute or defend actions that arise after the bankruptcy filing without additional fees being paid. Also, it is entirely possible that there was no viable defense against the trustees action (can't really say one way or the other).

    You should probably sit down with a competent bankruptcy attorney. and yes you will probably need to pay some money, to have the attorney audit your bankruptcy to determine if anything is really at issue.

    Maybe not what you want hear, but part of bankruptcy is moving on.

  2. Jonathan David Leventhal

    Contributor Level 13


    Lawyers agree

    Answered . I would suggest going to a mal practice attorney. It is impossible to give you an answer without all the facts in detail.

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  3. L. Maxwell Taylor

    Contributor Level 20


    Lawyers agree

    Answered . The link below contains general information that may assist you in evaluating the circumstance in which a chapter 7 trustee takes and sells a home to pay unsecured creditors from the debtor's equity.

    Not legal advice, just general information. I practice in Vermont, not California. Consult California counsel to obtain legal advice.

  4. Diane L Gruber

    Contributor Level 18


    Lawyers agree

    Answered . In my opinion your BK attorney should have told you to have an appraisal (costs $$$) or at least a CMA (free) BEFORE you filed your petition. Also, he should have given you a list of exemptions that are available to protect your assets. IF your house's equity is in excess of the available exemption AND he told you that you ran the risk of the trustee "taking & selling" your house. If he did all three, there probably is no malpractice.

    Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662.... more

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