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Heres one for the books!!!

sunrise
Frequent Contributor

Heres one for the books!!!

My DH & I filed for a ch 7 BK in 10/2002 it was discharged in 03/03.  One month later we received papers in the mail for a Ch. 13 BK...we called the atty that did our CH7 and he said it was an error.....so he filed papers for my DH and myself requesting a dismissal...we were granted a dismissal in late 04/03.  All 3 CRA's are showing a CH7 & CH 13...the 7 was discharged and the 13 was dismissed......we have tried to dispute the 13 that was filed in error, but the CRA's are verifying as dismissed.......We asked for the dismissal (it was not dismissed by the courts) and it was granted....is this legal?  We would love to get the 13 removed as it is a legit error!!! 
 
I called the BK courthouse, and they said all they could do is mail us the docket info and we could then dispute w/ the new info....and the gal at the BK courthouse also said all our paper work shows us as the parties requesting the dismissal and that the courts granted us that dismissal!
 
 
So, technically it was dismissed......but, NEVER should have been filed!!!Smiley Mad  Does it matter that we requested the dismissal?
 
Any suggestions?     Thank youSmiley Happy
takin' it one day at a time
Message 1 of 9
8 REPLIES 8
sunrise
Frequent Contributor

Re: Heres one for the books!!!

Bump, pleaseSmiley Wink
takin' it one day at a time
Message 2 of 9
SmartCookie
Valued Contributor

Re: Heres one for the books!!!

The good news is that a Chapter 13 only stays on your CBRs for 7 years from filing.
 
The bad news is that this should not be there at all, I understand.  With a Chap 13, the debtor can request a dismissal at any time.  This is the easiest way to scrap something filed in error.  Unfortunately what is easiest for you and the Courts does not follow suit with you and your credit.  They just are not aware of that... it's not on their priority list.
 
Now, way back when... your attorney could instead have asked the Court to issue an order striking the case or deeming it as never filed.  The Court would still have a case number from when the case was errantly filed, and records of what happened to the case and why.  This would be your ammo for accurate verification with the CRAs.  
 
I think you should get in touch with the attorney who did this filing.  Essentially, if s/he cannot get it corrected with the Courts and therefor with CRAs, they are liable for a malpractice suit due to any damages.  I'd think that any attorney would want to clean up their own mess that they caused for a client just on a moral basis, but maybe the concern of a complaint to the state Bar association and hints at a malpractice suit might cause a more concerned reaction.
 
So, call your attorney.  Ask for a letter explaining the error and thereby requesting removal from the CRAs.  Send to CRA.   At the same time, have attorney see what might still be able to be done to correct the Court records to indicate the error.  Let the attorney speak with the clerks etc and see if they can find out who can remove the reporting of the record on your CBRs.  Between the three, hopefully something will give.
 
G'luck!
EQ 787 EX 781 TU 737 11/17/07 *** I am not an attorney. If I was, I might not clip coupons. If you want legal advice, consult an attorney. If you want my personal opinion, feel free to consider my posts***
Message 3 of 9
sunrise
Frequent Contributor

Re: Heres one for the books!!!

Thanks SmartCookie.....I called atty. from the very beginning, they want payment for anything they do!!  They also said this will take months for all of this to go through.  We are going for a mtg. in March, and atty doubted that even if he got all his paper work filed/corrected that the courts would have them updated/corrected in time for it to matter, being that the courts are closed so much through the holidays and everyone is on vacation.  Smiley Mad  I know this is true....I have called to make sure the ball keeps rolling, and on more than one occasion the people I need to talk to were on vacation until Jan.2!!  Heck, even I took off Dec. 21 through Jan. 2nd.
 
We are plowing through anyway, hoping it works.....darn attys...always want money!  We have to pay to have records pulled because "everything is on microfilm and at another location, blah, blah blah!!"
 
 Will keep ya posted!!
takin' it one day at a time
Message 4 of 9
SmartCookie
Valued Contributor

Re: Heres one for the books!!!

So the original atty who made the error is going to attempt to correct this.... but charge you for it???  Trust me when I say an honorable one would not be charging for filing fees and time... what a snit!
 
Who is better at negotiating between you and DH?  If it's been you that has been doing the talking with atty, having someone else (DH in this case) step in might bring more attention to this.
 
It may be uncomfortable but you guys are not the ones that made the mistake.  You've got to be impeccably clear to atty that this is urgent and is to fixed ASAP... that you are not going to pay for his mistake and that you are already paying for it do to this being on your credit reports.  If atty does not drag his feet, March may not be too late.  
 
I didn't realize the atty was wanting to charge you... I'm really ticked at that.  You've got to play hardball, use the word malpractice, and not be intimidated into not letting him know how rightfully angry you are.
EQ 787 EX 781 TU 737 11/17/07 *** I am not an attorney. If I was, I might not clip coupons. If you want legal advice, consult an attorney. If you want my personal opinion, feel free to consider my posts***
Message 5 of 9
sunrise
Frequent Contributor

Re: Heres one for the books!!!

Yep, we gotta pay.  Atty. stated he "thought we would need a ch.13 after our ch.7 in order to keep our home and car"  So, he filed it.....we were not going to lose the house or car, they were current at time of BK.  I think he is just looking for a way to NOT have to admit he was wrong!  He is now saying it wasn't filed in error...that his office didn't make a mistake....it was a "misunderstanding"!!  Whatever! 
 
We are trying to be nicey, nicey...because if we really pi** them off I am sure they will drag their feet!!  I did mention last month that I may have to contact the State Bar Associaltion and that is when the story changed.....they no longer said "oops...mis-filed"  now it's a misunderstanding.  And, the kicker is......he said we told his secretary (one of 15 in 7 offices) that we wanted a ch.13?!  WHAT??!!  Slimy sleezeball!!  I bet they have doctored records to prove this!  We can't take chances with this creepster.  I can't seem to find the paper where we signed/agreed to the ch.7 (I bet we weren't given a copy!....we were awfully nervous during this process!)    All I have on record are the actual BK papers and my cancelled check.........which doesn't help prove what we filed..."we charge according to difficulty of case and amount of time spent working on it?!"
 
You see our predicament?  Be forceful...and they drag their feet and admit no wrong doing...be nice and they "will try their best to meet our time limit" 
 
I will be glad when it is done.  There is no doubt it will get done...just when!
 (for a $45.00 doc fee...and $100. flat fee for their time...so, a total of $145.) 
 
When it is over I will plan my revenge!!!  Just kiddingSmiley Wink  He already has a bad rep....wish I knew this way back when!!! 
takin' it one day at a time
Message 6 of 9
SmartCookie
Valued Contributor

Re: Heres one for the books!!!

Hopefully the $145 will be the max loss.  I'd probably do the same... get it done and then complaint to the Bar and at the least speak with someone about suing him for malpractice.
 
I most definitely see where you are coming from and why you are going this route.  Consider something though... check out www.naca.net  and see if you can get a free phone consult with a consumer attorney in your state.  It can't hurt! 
EQ 787 EX 781 TU 737 11/17/07 *** I am not an attorney. If I was, I might not clip coupons. If you want legal advice, consult an attorney. If you want my personal opinion, feel free to consider my posts***
Message 7 of 9
sunrise
Frequent Contributor

Re: Heres one for the books!!!

I am writing that link down and as soon as this mess is over....I will take action!  Thanks for all your help!!Smiley Happy
takin' it one day at a time
Message 8 of 9
mrthomas
Established Member

Re: Heres one for the books!!!

[Atty. stated he "thought we would need a ch.13 after our ch.7 in order to keep our home and car"  So, he filed it.....we were not going to lose the house or car, they were current at time of BK.]
 
 
I'm a bankruptcy attorney.   What happened here is unfortunate, but repairable. But in my opinion, how the attorney handled it since the mistake was made is pure CYA on the attorney's part.  
 
When I started reading this thread, I immediately recognized the problem.  The attorney (or one of his/her employees) was filing cases electronically and accidentally filed a Chapter 13 case for you, when they meant to file a Chapter 13 case for someone else (probably with a similar name).  It is a horrible mistake, but it happens.  The problem is, it is a ton of work to correct it.  
 
But, then I got to the part where he offered the car/house reason for filing the Chapter 13, and alarm bells went off in my head.   How could he intentionally file a Chapter 13 case for you, without a signed Petition? 
 
A bankruptcy (Chapter 13 or Chapter 7) is initiated by filing a Bankruptcy Petition with the Court Clerk.  You (the debtor) must sign the Bankruptcy Petition.  However, the copy filed with the court doesn't normally have your actual signature, because it is an electronic copy created using bankruptcy software.  On the petition filed with the Court, your signature would look like "/s/ John Doe".   The software used to create the documents is usually the same software used to file with the Court, so it is easy to pick the wrong case, push a few buttons, and file a bankruptcy.  With your name, address, and socials, I could physically file a (invalid) bankruptcy for you in about 5 minutes.   
 
So. although the attorney doesn't need a Petition with your signature on it to physically file the case, he MUST have an original Chapter 13 Bankruptcy Petition with your actual signature on it.  Does the attorney have that?  If so, then the powers-that-be will say you "knew" you were filing a Chapter 13 bankruptcy.   Other factors could come into play here, such as when you signed it, etc., but you should talk with another, competent bankruptcy attorney in your area to discuss that. 
 
But, if he doesn't have a Petition, then you have a gigantic hammer and the attorney needs to pay to have this bankruptcy struck from the record (an "adversary proceeding" may be required), as well as certified letters with certified copies of the striking order sent to all your creditors and the CRAs.  It sounds like he made an excusable error, compounded it by lying to you, and compounded it further by lying to the Court.   If he doesn't become extremely cooperative after learning that you know he needs an original signed petition, then perhaps a letter directly to the Bankruptcy Judge and/or Chapter 13 Trustee would resolve your problem.   I cannot speak for other bankruptcy courts, but the ones I practice in would bar this attorney from future practice for lying to you and the court, instead of owning up to the mistake and fixing it.   
 
Good luck.  Again, this problem can be corrected.  It just takes a bunch of work on somebody's part.  Who pays for it depends on whether you signed a Chapter 13 Bankruptcy Petition. 
Message 9 of 9
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