Frequently Asked Bankruptcy Questions

Do I need an attorney to file bankruptcy?

Individuals may file a bankruptcy petition without an attorney. This is called appearing "pro-se." However, the bankruptcy code is very complex and filing a bankruptcy petition requires a thorough knowledge of both the bankruptcy code and other Federal and State laws. In addition, bankruptcy practice differs from court to court. Experienced bankruptcy attorneys are familiar with the local rules, both written and unwritten.

Filing your own petition is very risky. Often "do-it-yourselfers," or even attorneys lacking proper experience, make serious mistakes with drastic results. A mistake can cause the unnecessary loss of assets, loss of a personal home, or even the loss of the right to receive a bankruptcy discharge. You may be able to read the bankruptcy code, but only an experienced bankruptcy attorney can provide a realistic assessment of what can and cannot be accomplished by filing a bankruptcy petition, and make sure that your case proceeds smoothly.

How do I find an experienced bankruptcy attorney?

Finding an experienced bankruptcy attorney with a good reputation can be difficult for people unfamiliar with the legal system. Bankruptcy law and practice is difficult and full of traps, so you want to make sure the attorney you chose is experienced. You also want an attorney who is committed to helping his or her clients by providing attentive, quality service. Some attorneys who advertise themselves as providing bankruptcy services are either inexperienced or interested only in generating a volume business. Using the yellow pages, newspaper advertisements or television or radio advertisements to find an attorney is generally a mistake.

If you plan to file in Massachusetts, consider Warren E. Agin of Swiggart & Agin, LLC. If not, here are some ways to find a good attorney.

1. One way to locate a good attorney is word of mouth. If you know someone who recently filed bankruptcy and feel comfortable talking with them, ask them about their experience.

2. Contact a bankruptcy attorney at a major law firm in the area and ask for a recommendation. Senior attorneys at the large firms know who handles consumer cases in their area competently and usually are more than happy to recommend one or more attorneys for your to call. If you don't know the major firms in your area by reputation, try using the Martindale Hubbell on-line directory.

3. Local bar associations often have referral services that can help you locate an attorney. These services generally require that the attorney specialize in bankruptcy and maintain malpractice insurance. Sometimes local bar associations operate programs to assist low income individuals to obtain low cost or free legal services. Check the yellow pages under "Lawyer Referral Services."

4. Organizations like the American Bankruptcy Institute and the Commercial Law League of America operate certification programs and can refer you to a certified attorney in your area. While most competent bankruptcy attorneys do not bother obtaining certification, you are guaranteed that an attorney having certification is an experienced and knowledgeable bankruptcy attorney.

Once you locate an attorney, call and ask for a initial consultation. Most bankruptcy attorneys don't charge for the first meeting. When you meet the attorney ask questions before hiring him or her. Make sure that you are comfortable with the attorney and feel comfortable asking questions. The attorney should explain the bankruptcy process in a way you understand. Confirm that the attorney carries malpractice insurance. Make sure that you will be dealing with an attorney, not a paralegal or secretary. Many attorneys use paralegals to help prepare the bankruptcy papers, but your contact during the initial meetings should be with an attorney. If you are not completely comfortable with the lawyer, do not feel pressured into hiring him or her. Find someone else.

An excellent article on how to choose and use a lawyer is available on-line from the Colorado Bar Association.

What about non-attorney bankruptcy petition preparers?

Bankruptcy petition preparers are barred by law from providing you with any legal advice. In enacting legislation governing bankruptcy petition preparers Congress stated: "These preparers often lack the necessary legal training and ethics regulation to provide [legal advice and legal services] in an adequate and appropriate manner. These services may take unfair advantage of persons who are ignorant of their rights both inside and outside the bankruptcy system."

The bankruptcy petition preparer's role is limited by law solely to typing. Unlike an attorney, a bankruptcy petition preparer can not help you understand the law, advise you on how to answer questions, assist you in planning, or assist you in court. They may be useful, but you must be prepared to do all the real work yourself.

Federal law requires that bankruptcy petition preparers sign any documents they prepare, print on the document their name, address, social security number and furnish you a copy of the document. A bankruptcy petition preparer may not sign any document on your behalf, may not use the word "legal" or any similar term in any advertisement, and may not receive any payment from you on account of court fees. The bankruptcy petition preparer is also required to disclose to the court the amount of any fee you pay. Beware of any bankruptcy petition preparer who does not comply with these requirements.

What if I still want to file my own petition?

Again, I strongly advise against filing bankruptcy without using an attorney. If you insist on doing it yourself you can do so by using forms which can be obtained from any legal stationery store. In addition to those forms you may need some local forms which can be obtained from the bankruptcy court where you plan to file.

A few tips will help you file your own bankruptcy petition successfully:

1. Learn the law. Bankruptcy law is complicated and full of traps. Make sure you learn about what you are doing. Just following the instructions on the forms is not enough. You will need to obtain the following materials:

• A current copy of the bankruptcy code - Title 11 of the United States Code, or The Bankruptcy Code, is the starting point for learning bankruptcy law. You can find a copy at any law library. Better yet, buy a copy of Bankruptcy Code, Rules and Official Forms : 1997 available from West Publishing Co. You can purchase it on-line from Amazon.com by clicking on the title. Don't rely on the versions of the code on the Internet, they may not be up-to-date.
• A copy of the rules of bankruptcy procedure - The Rules of Bankruptcy Procedure govern every aspect of a bankruptcy filing and they must be followed to the letter. Both books referenced above include copies of the rules. As with the bankruptcy code, the on-line versions of the rules are not current as the rules change yearly.
• A copy of the local rules governing the court in which you plan to file your petition - Each bankruptcy district has its own rules and procedural orders which must be followed to the letter. Local forms may also be required. You can generally obtain a copy of the local rules and procedural orders from the clerk's office.
• A good bankruptcy treatise - Try to locate a local law library with a copy of Norton Bankruptcy Law and Practice, 2d. If you are filing a chapter 13 petition try to locate a copy of "Chapter 13 Bankruptcy" by Judge Keith M. Lundin. Both treatises will help you to answer questions you may have about the bankruptcy process.

2. Ask questions. Some bankruptcy procedure is unwritten. Although court clerks and bankruptcy trustees can not provide you with legal advice, they may assist you with procedural questions. Ask them questions about what you are supposed to do and make sure you understand the answers.

3. Take the process seriously. Make sure you file all documents on time and properly completed. Make sure you appear on time for all meetings and court hearings. Make sure that you follow to the letter any instructions given you by a trustee or judge.

4. Be complete and accurate. Remember, you have an obligation to disclose to the court all assets, creditors, and information regarding your financial affairs and you will sign your schedules under the penalties of perjury. If you intentionally omit something relevant, you have committed perjury. Even forgetting to disclose an asset by accident may have serious repercussions. Assets debtors typically forget to disclose include personal injury actions, property they own which is held by another person, the right to sue another person, and stock or an interest in a defunct company. Remember, if you own stock or an interest in a company which is no longer operating, or which is even in bankruptcy, you still have to disclose that interest to the court.

5. Recognize when you are in over your head. If you no longer understand what is going on, or the process becomes adversarial, either with the bankruptcy trustee or a creditor, it is time to get an attorney.

What do I do if I don't like my attorney?

Common complaints concerning attorneys include: my attorney doesn't listen to me; he/she doesn't return my telephone calls; he/she doesn't keep me informed of the status of the case; he/she failed to attend a court hearing or missed a filing deadline; there was bad news and my attorney did not tell me until it was too late; he/she (or his/her paralegal) treats me like a disease when I call.

Remember, your attorney works for you. If practicable, fire your attorney and hire someone else. If the problem is one of communication, telephone the attorney and express your displeasure. Write a letter if necessary. Most attorneys will respond favorably.

If your attorney has committed malpractice by missing a filing deadline, failing to appear at a hearing, or by failing to inform you that your case was about to be dismissed or converted, contact the appropriate state bar about the attorney's misconduct. The bankruptcy court itself may be able to assist you if your counsel is incompetent.

What if my question isn't answered here?

Send your question to Warren E. Agin of Swiggart & Agin, LLC using the Feedback page and we will try to help you. Make sure you state where you live. Please keep in mind that we can not provide legal advice over the Internet or answer questions about state law (other than in Massachusetts).

You may want to contact an attorney. Most bankruptcy attorneys do provide free initial consultations and can provide you with the guidance you need to decide whether to file a bankruptcy petition.