It is indeed the attorney's responsibility to go over the paperwork with a fine tooth comb and for a motion to dismiss to be filed, that indicates this was not done. Some Chapter 13 Trustees are more aggressive than others, however, and quicker to go the motion to dismiss route. When a Chapter 13 case is filed, even if the case is extremely well prepared beforehand, things often come to light that mean changes to the Plan, or bankruptcy schedules. I can't say what happened in your brother's case, but it could be a matter of sloppiness on the attorneys part or it could be that your brother was not able to get requested items to his attorney for the documents to be fully prepared. If a case is filed on an emergency basis, usually there is a lot of missing information at filing. If a "skeleton" bankruptcy is filed, the Debtor only has 2 weeks to get the scheduled filed and that means an enormous amount of work needs to be done in a short period of time or the case will be dismissed (unless the deadline is extended by motion). I myself do not file skeleton Chapter 13 cases - I prepare every case fully before filing it because I don't like surprises, nor do my clients. I want to know as much as possible BEFORE I file the case. But many attorneys make a practice of filing skeleton bankruptcy cases and catching up later.
Yes, if your brother files the missing information before the case is dismissed, that will fix things.
If the case is dismissed, it is unknown how long it will take the creditors to start coming around. Some may not be paying attention and may never come around again; others might start coming around immediately.
Your brother can file a new bankruptcy case right away if this one is dismissed so long as the only reason for the dismissal was the failure to file the missing documents.
Yes, it is normal to pay the trustee the Chapter 13 Plan payment before the hearing has happened. In my jurisdiction, the first payment is due within 30 days of filing the bankruptcy and then on the 20th of each month thereafter.
Yes, if your brother files a new bankruptcy case with a new lawyer that lawyer can apply for an extension of the automatic stay since there will have been two bankruptcy filings within the year and otherwise there would be limitations. Good luck!
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Right now let the lawyer work this out. The payment plan depends on the debt, and yes it is normal, payments must start 30 days after the filing. Trustee's seldom recommend the first plan, he needs to have this conversation with his own attorney who can answer everyone of this questions, we have no idea about the specifics of the plan. He should not panic
In nearly every case in the Northern District of Georgia, a debtor will receive a document entitled "Objections to Confirmation and Request for Dismissal of the Case" around 10 days after the creditor's meeting. Many of the objections are minor, but it is important that he contact his attorney to go over these objections in person before the confirmation hearing. The number of objections can be misleading. I recently had a situation where a debt on a vehicle was $10.00 less than what we had anticipated. The trustee based 5 different objections on this difference, and all were correctable with about 15 seconds of work. Know that trustee's are there to pick through things and make sure that every aspect of the case is perfect, and are often just trying to push a debtor into paying more money to unsecured creditors. Tell him to sit down with his attorney and go over these things and he should be fine. As to his payments, he should start making payments from the time the case is filed, and the time he will be in the case begins to run from that date. There is no need to be concerned about converting or hiring a new lawyer until his own lawyer has a chance to make the changes. I often tell my clients that a chapter 13 case is much like assembling a classic car from a mail order kit. Due to all the moving parts, there is always something that is going to need to be tweaked.
The above information is general in nature. In order to obtain more specific legal advice upon which to base your important decisions, you should consult with an attorney in person and retain one of your choosing. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP Website: www.gadebtlaw.com or www.hicksmasseyandgardner.com EMAIL: email@example.com PHONE: (770) 307-4899 or (770) 538-0555 OFFICES: 53 W. Candler St. Winder, Ga. 30680 106 Washington Street Jefferson, Ga. 30549 718 Oak St. Gainesville, Georgia serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation
The fact that the trustee filed a motion to dismiss for lack of documents is a standard way for the trustee to get the missing documents. Chapter 13 trustees often change what documents they require each month & it becomes virtually impossible to predict what might be this month's required document. In addition, debtor's often tell the trustee something entirely different than what they told the attorney during the initial consultation, meaning that the attorney is just hearing that there is an issue for the first time at the 341. This is particularly true when a debtor waits a long time to authorize filing after the full consultation takes place. If the Chapter 13 isn't going to work, it is often better to convert to a Chapter 7 rather than dismiss. I presume your brother is a big boy now & doesn't need you to babysit him. He should be the person asking these questions & if he isn't satisfied with his current attorney, he is welcome to hire someone else. Hope this perspective helps!
Objections are filed in about 99% of Atlanta cases. Most are easily addressed assuming your brother doesn't waste time meeting with his lawyer. A plan with no payments will get dismissed and payments must be made as soon as a case is filed.
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Prior to the 2005 change in the Bankruptcy Code, all the little problems the Trustee sees in a Ch 13 could be taken care of with a directive from the Trustee. Now, the Trustee's only choice is to file an objection and motion to dismiss. Then, if you are able to fix all the little problems with a few weeks after the meeting with the Trustee, the case can be confirmed and all is well. In my district they just starting requiring the attorneys to file an official objection to a Trustee's motion to dismiss if the motion is based on a failure to file certain documents. The only purpose for this is to keep the attorneys on their toes so they don't have to file a lot of objections. And, yes, it is common to make your monthly payment before the hearing. In fact, failure to make that payment can be another objection the Trustee can file. So, in all probability, things are just standard practice as we have come to know it since 2005. If you have additional doubts, you might check with a local bankruptcy attorney who is familiar with the rules in your district.
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Less than 5% of Chapter 13 cases that are filed without an attorney end in discharge.
An attorney would likely lower your trustee payment, not raise it. Get an attorney.
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