April 21, 2014

Can I File a Chapter 7 By Myself, Without an Attorney

This morning, I received an email from a gentleman named Jim, who writes:

How can I file chapter 7 by myself without paying someone, anyone $ 99.00 $199.00, $299.00 etc… Three different people( with a financial intrest of course) said representation is required.

Here is my response: Jim, you certainly have the right to file a Chapter 7 case by yourself.  The forms are available either on-line or at an office supply store.  There are also several books about how to do this.  I am currently reviewing a book entitled The Complete Chapter 7 Personal Bankruptcy Guide by attorney Edward Haman that is published by Sphinx Publishing that is quite comprehensive.

Here are the issues:

1. the bankruptcy process has become significantly more complicated since October, 2005, when the BAPCPA changes to the bankruptcy laws were enacted.   I know a number of lawyers who used to file the occasional Chapter 7 here in Atlanta, but who have now given up the practice because of the complications.  In particular, you need to fully understand how the median income test and the means test works – if you do the calculations incorrectly, you could end up in a deposition at the United State’s trustee’s office, face a motion to dismiss or face a motion to convert to Chapter 13.

2. you need to understand about the pre-filing credit counseling requirement as well as the pre-discharge financial management course requirement

3. in order to actually file your case, you will need to go to the Clerk of Bankruptcy Court and scan your pages to get your case filed.  I suspect that this process is not particularly complicated, but I have not used the scanning equipment at the Clerk’s office.

4. you cannot dismiss a Chapter 7 voluntarily if you change your mind.  For example, if you file, but it turns out that you earn too much or own too many assets the judge may not let you out of your case, at least until after your assets are liquidated.

5. you need to understand how the Georgia exemption law works and how it applies in Chapter 7 to protect property that the law allows you to protect.  If you don’t properly declare property as exempt even if the law would otherwise allow you to protect it, then you could lose your property anyway.

6. do not expect to receive advice from the Chapter 7 trustees or the U.S. Trustees.  Their interest is to maximize the recovery of the estate (i.e. your creditors).

While folks contemplating bankruptcy obviously do not have a lot of money, I think that in most situations the complexity (which, no doubt is unnecessarily complex) makes a pro se filing a mistake.

About

Jonathan Ginsberg practices consumer bankruptcy law in the Atlanta, Georgia area.

Comments

  1. John E Wilson says:

    I agree that ideally one should get an attorney to help with a bankruptcy. As in my case I do not have the money to pay for one. I live on just my social security monthly check. Even if the attorney would be willing to have me pay them monthly, it would take me 2 to 3 years to pay them back.

    So the only option I see is to wade through the do it yourself books and be very careful how I fill out the forms.

    John E Wilson

  2. Bankruptcy or credit counseling? which is better?

  3. John B in minnesota says:

    First off thank you for the information, although I can’t disagree more. Filing yourself is fairly easy and straight forward, if you purchase the right software for downloading information. No I am not selling anything, or plugging for business! And if you are filing Chap 7, its fairly easy, as long as you don’t have alot of assets to list. Multiple assets of varying value can complicate the first time filer. The classes that are required by the court and acceptable by the trustee is public information and can and will be obtained by calling around your area to local law firms. I went in to a local law firm shopping for representation, and gathered all the pertinent info on classes, means test etc. It cost me nothing! The meeting of creditors was simple and straight forward. The trick is to be honest with the information, if a creditor wants to be heard(which is doubtful, placing odds of it happening at less than 1 out of a 100 cases my opinion), they can object to the case with or without an attorney involved. Creditors only contest a Bankruptcy if they feel fraud has taken place or if the dollar amount involved is quite substantial. In minnesota the number of cases where creditors attended or contested Chap 7 hearings was less than 2% in 2009. Current software is up to date and just asking for advice, and due diligence will save you tons. If your case is messy and complicated, lots of assets, homes cars, valuables, then spend the money for a lawyer. One last thing I am not selling software nor am I an attorney or plugging a business, just a normal average joe who almost spent $3300.00 for what I did on my own for $299.00(filing fee) $49.00(software forms) $50.00(finance class) $50.00 (misc, paper, copies etc). Use the net, take control, the feeling is very empowering, and once you get out of debt, stay out. Life is fun when you do:)

  4. John:
    Thanks for your comment, although I disagree with your conclusions. In my view, the arcane rules relating to the means test, the local rules and procedures in bankruptcy court and the rules prohibiting dismissal of a Chapter 7 without court permission make filing a pro se Chapter 7 a poor choice. Two points in addition to what I already discussed on this post: (1) several years ago, I was retained by a gentleman who filed a Chapter 7 pro se (without a lawyer) because he was being sued. He had about $100,000 of credit card debt. Unfortunately, his elderly mother had added him to the title of her house (which she owned free and clear) for estate planning purposes. The house was worth over $200,000 and Georgia only allows a $10,000 exemption for real estate. This meant that there was about $90,000 of non-exempt equity that was part of the bankruptcy estate.My client wanted to dismiss voluntarily but the trustee said “no way.” The trustee was prepared to seize the elderly mother’s house and sell it to liquidate the non-exempt equity. My client’s mother had to take out a home equity loan to buy the trustee out of his interest. (2) Chapter 7 trustees and bankruptcy judges do not have time to educate pro se debtors nor will they point out mistakes. If you make a mistake such as not filing your financial management certificate or not coordinating your form B22 budget with your Schedule I & J budget, you may end up without a discharge or facing a U.S. Trustee motion to convert to Chapter 13. Further, you may have difficulty finding a lawyer once your case is filed. I generally avoid taking on cases after they have been filed by a pro se debtor or even ones filed by another lawyer. Inevitably those cases require a lot more time to undue mistakes and you often find yourself having to explain why the budget you swore was correct is, in fact, not correct at all. If you want additional perspective on this, take a look at the series called “How to File Bankruptcy” on the BankruptcyLawNetwork.com blog. This series identifies a variety of issues that anyone trying to file must address. While I think that most reasonably intelligent people could deal with one or two of these issues, when add them all up, the burden is just too much. I know several lawyers who used to dabble in bankruptcy prior to the 2005 changes to the law, who no longer practice in this area.

  5. israel pena says:

    i just moved from nyc a year ago i now live in florida i have 85000 in debt from a vending machine company that i owned at one time and liquidated everything in 2006 i do not have any assets and do not own anything not even a bank account and make less that 25000 a year and i have three dependents, can i file for chapter seven myself since it is straight forward ? , thank you

  6. Russell Ammons says:

    Would you be open to sharing what software you used? Thanks! @John B in minnesota:

  7. Russell, I use Bestcase bankruptcy preparation software. It is very comprehensive and also quite expensive (currently $1,195 for a 1 year license to file Chapter 7 or 13).

  8. Hello! I currently sell real estate and made on $5,100 in 2012. I don’t have any assets, not even a bank account. I live with a family member and hope to return to school via financial aid this fall. I don’t have $1,500 to pay to file a chapter 7 (I don’t want to consolidate) but I have debt that I can not pay. I’m just wondering if I can really mess this up by doing it myself. I am pretty smart and filed in 2003 but I used my cousins software (she is an attorney). Your thoughts please….

  9. Given that you cannot dismiss a Chapter 7 without court permission, I think it is dangerous to try to file on your own.

Speak Your Mind

*

Page optimized by WP Minify WordPress Plugin