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Do I Really Need an Attorney To File Bankruptcy?


In this age of internet services and self-help legal services, it is a very legitimate question as to whether you need an attorney or not for certain legal proceedings. The answer to this question would seem to be easy. All you have to do with bankruptcy is fill out some forms and appear in court and your debts are gone! While that is an extreme simplification of the process, that sort of does sum up the legal proceeding. So, this article will go step-by-step to figure out if you indeed should represent yourself.

The first question you should ask yourself is what type of bankruptcy do you need to file? If you were not aware there were many types of bankruptcy, you may already have answered the question as to whether you need a lawyer. Also, please note that the question is not what type of bankruptcy you “want” to file, but what type you need to file. If you are attempting to file a Chapter 7, you must first complete the means test. The means test takes a complicated formula that involves your last six months of income and you average daily expenses and then compares them to the IRS standards for what a person or family makes in your zip code. Make certain you take the proper adjustments for each family member and any “heads on beds” residents in your household. Next, you must look at the abuse standard. Even though you have “passed” the means test, do you have any situations that might be a standard of abuse problem? If you are filing a Chapter 13, you need to know how to apply those numbers to determine the unsecured creditor pool you are required to pay. Already feeling a little insecure? You should not feel too bad. The lawyer who works on your case goes through years of formal education to learn to do just what I am describing.

Once you figure out the numbers in the means test, you must balance that number with the case law in the district that you are filing in. Most courts have interpreted those numbers in different ways. Next, you must list any and all property you own. Once done, you must elect what exemption scheme you wish to take. There is the state exemption scheme and the federal exemption scheme. Be careful here. If you chose the incorrect exemptions, or you apply them in a way that is contrary to the case law in your state or district, you could lose everything you own. Once you file the bankruptcy, you often are stuck with the choices you made. You will appear before a bankruptcy trustee. Don’t expect much help from that person. They are there to protect your creditors and make certain they get whatever they may be entitled to. Also, the trustee gets a percentage of the assets to pay their attorney fees. Interestingly, most property lost in a bankruptcy is by unrepresented individuals. Your attorney will likely be able to protect everything you own.

Also, don’t forget about the potential adversary proceedings. Creditors are bullies. You already know that if you are having financial issues. When you try to talk to them and offer reasonable solutions, they respond by insulting you and making you feel like less of a human being. Don’t think that attitude does not follow you into the bankruptcy. If they see you do not have an attorney, they can file a lawsuit in your bankruptcy to challenge your discharge. They can file that when you have an attorney, but then they have to prove the allegations they made about you. If you do not have an attorney, it is hard to defend yourself.

So, you have guessed by now that my recommendation is that you have an attorney. With an attorney, a bankruptcy is a fairly easy legal proceeding. It is a proceeding where you get to keep virtually everything you own. Without one, it can be a nightmare. Don’t opt for the nightmare. If you are in debt, come see us. Book an appointment with a skilled bankruptcy attorney. At Bailey & Galyen we would like to help you achieve your financial independence without all of the headache.