QUESTION
Do I need to replace my attorney and if so can we delay the confirmation until the new attorney gets this case under control?
Asked on Apr 16th, 2013 on Bankruptcy - Michigan
More details to this question:
Our bankruptcy is 2-1/2 years into the process and not confirmed. The attorney told us that this is due to our HAMP situation but it has just come to light that he is not communicating with the Mortgage company, nor passing along any communication, therefore each of thee (3) attempts have failed. Now the court and trustee are demanding that we confirm the plan not knowing if we can afford to keep the house. Is this malpractice?
7 ANSWERS
Bankruptcy Attorney serving Livonia, MI
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Charles J. Schneider, P.C.
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My experience with mortgage companies and loan modifications indicates that it is they who are the source of the problem and usually not the attorney. It appears that the mortgagee makes up its own rules as they go along. It cannot be judged whether there is malpractice as it cannot be ascertained what is meant by "it has come to light". I would certainly dismiss my attorney if I lost confidence with him. However, clients don't often know whether they are assessing their attorneys performance correctly. It is best to consult another attorney but this blog is not where this is done.
Answered on Apr 18th, 2013 at 10:18 PM
I have heard your side of the story, but it often takes a judge to decide if something is malpractice or not. I am sure if I asked your current attorney he would have an explanation of what has caused the delay and would have business records to back up his story. The court & the trustees often demand things, but that doesn't mean your attorney hasn't performed his job in an appropriate way. You would need to have an expert review your file in order to see if replacing your current attorney would be possible.
Answered on Apr 18th, 2013 at 3:12 PM
Deborah F. Bowinski
In my experience, a bankruptcy attorney has no control over the mortgage modification process. I think you need to lol to your retainer agreement to determine exactly what you retained your attorney to do. There are a number of questions that come to my mind after reading your post. Was your case filed prior to the completion of a loan modification at your request or urging? Was it filed to stop a foreclosure? Did your attorney agree to represent you in and assist you with the loan modification process? It sounds as though it is long past time to get a plan confirmed. The chapter 13 case can be voluntarily dismissed if it stops working to your advantage in the future.
Answered on Apr 18th, 2013 at 3:03 PM
Bankruptcy Attorney serving Dallas, TX
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Polk & Associates
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If you hired the attorney to handle a loan mod for you in addition to handling the bankruptcy case for you, and you paid the legal fees associated with him doing the extra loan mod work, then it might be malpractice. If you hired the attorney to handle the bankruptcy case but did not make any additional agreements about him taking on the extra work of the loan mod project, then he hasn't done anything wrong.
Answered on Apr 18th, 2013 at 3:03 PM
Bankruptcy Attorney serving Plantation, FL
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Moffa & Breuer, PLLC
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I suggest that you consult with another attorney and get a second opinion. Make sure the attorney is experienced!
Answered on Apr 18th, 2013 at 3:03 PM
Bankruptcy Attorney serving Phoenix, AZ
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Law Office of D. L. Drain, P.A.
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You could talk to an experienced chapter 13 bankruptcy attorney licensed in the state where you live.
Answered on Apr 18th, 2013 at 3:03 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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Your attorney, nor the Court or Trustee, controls the bank. Ask your attorney directly about the issues.
Answered on Apr 18th, 2013 at 3:02 PM