Bankruptcy Law/chapter 13

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Expert: - 5/30/2009


Question
I am 2 years into a 5 year plan (1%-no room to modify)and I was out of work for a couple of months and have gotten behind. I am making less and I don't believe that the plan is feasible anymore. My current lawyers office has said to make payments as much as I can when I can and that is getting me further behind. I consulted with another lawyer for a second opinion and was told it would be better to not make payments for a couple of months and allow the court to dismiss my case and refile again within a few days. That would be better in the long run since my payments would adjust to my correct income but I am concerned about my car and the automatic stay and also a judgement that was obtained prior to filing. A wage garnishment would be higher than the pal payment. How do I get the automatic stay extended so I can keep the car (no car no job) and prevent a wage garnishment? And if the case is dismissed how do I prevent the 180 days before refileing rule?

Answer

Leon Bayer
I generally can't answer a question like yours, because I don't have the opportunity to review all the papers and speak with you. Because of that, there can be a risk of overlooking something. Ordinarily, I would just reject the question and not try to answer it. However, I really don't like the advice that you have been given. So, here goes:  

I do advise you to return to your own attorney, or else consult a different experienced bankruptcy attorney immediately. Here are some discussion points for you to raise when you meet with an attorney. An attorney who has the actual opportunity to meet with you and review all the papers is the only person who can advise you. Please go see a lawyer immediately and discuss:

Is dismissal really wise? You have no guarantee that the court will approve a new Plan in a case filed after the present case is dismissed. Moreover, won't you be saddled with the expense of a new filing fee, credit counseling, and attorney fees for the new case? Also, you would have to file a motion to extend the automatic stay, and that will cost extra money, wouldn't it? Even if the lawyer fees are included in the Plan, wouldn't that make your Plan payments even more than they are presently?

I would think that the best thing is to go into court right away with a motion to modify, asking to suspend the missing payments and make up the missing payments in little bits spread out over the next 3 years. I know you say the current Plan payment is unaffordable due to a drop in income. If you were my client, I would tell you that there is no easy way out - the only way you are keeping your car is that you have got to find additional income and/or reduce living expenses.

For other readers who would like to do some general reading on banruptcy, see my Bankruptcy Guide at http://www.debt-relief-bankruptcy.com/guide-new.asp

I really hope things work out for you.  

Los Angeles Bankruptcy Lawyer Leon D. Bayer

Expertise

Leon Bayer has successfully represented clients in bankruptcy for over 30 years. He is frequently called upon by the media, the California Bar and other associations to provide insight and help educate attorneys on bankruptcy issues. If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/ and my personal web site at http://www.debt-relief-bankruptcy.com and A Human Guide to Bankruptcy at http://www.thebankruptcyguide.net/ Leon also writes about bankruptcy law for Nolo, see http://www.nolo.com/law-authors/leon-bayer.html and his "Ask Leon" bankruptcy law blog column at http://blog.nolo.com/bankruptcy/

Experience

Leon is a Certified Specialist in Bankruptcy Law by the State Bar of California, and has been a practicing bankruptcy lawyer in Los Angeles, California for 33 years.

Organizations
National Association of Consumer Bankruptcy Lawyers, California Bar Association, Los Angeles County Bar Association.

Publications
Author, ?The Essentials Of Chapter 13,? Daily Journal Report, December 18, 1987.
Contributing Editor, Basic Bankruptcy, California Practice Handbook, Matthew Bender 1992, 1993.
CEB Consultant, CEB-Personal and Small Business Bankruptcy Practice in California, 2003.


Education/Credentials
B.A., J.D.

Awards and Honors
President, 1995-1996-Los Angeles Bankruptcy Forum; Member - Los Angeles County Bar Association Committee on Commercial Law & Bankruptcy, 1988. Law Advisory
Commission-Personal & Small Business Bankruptcy Law of the State Bar of California, 1996-2000

MR. BAYER SAYS: The big banks and credit card companys have been working overtime for many years to undermine the Consitutional right of the American people to be able to claim bankruptcy protection. In 2005 the banking lobby successfully convinced Congress and the President to make the laws and proceedures more complicated, hopeing that it will stymie legitimate people from filing bankruptcy. They succeeded in gaining these complex new legal proceedures by greasing the legislative system with hundreds of millions of dollars in "campaign contributions." The good news for the American people is that while the new laws have made the proceedures needlessly complex to the point where inexperienced people can't help but trip over the maze of new rules and regulations, the process is still doable, especially with a lawyer who is well trained and experienced in this specialty.

Past/Present Clients
I have probably handled something on the order of about 15,000 bankruptcy cases thropughout my career.

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