Expert: Mark J. Markus- California Bankruptcy Attorney - 8/8/2006

Question
Hi, My bankruptcy has already been discharged.  I am trying to recoup some money that was collected (by way of bank account lien).  The money was collected at the same time I was filing bankruptcy.   According to section 547b, 90 day preference period, I have the right to recover the money since it was collected within 90 days.   My attorney, that handled the initial bankruptcy, told me he would help me recover the money, but has not returned my phone calls or emails.  This has been going on for several months.  I went to the bankruptcy court myself, but the judge kept asking for things that were beyond my understanding.   According the judge and trustee, this is a very simple process, but for me it is too difficult to handle myself.  My attorney won't return my calls/emails, I can't afford to hire a new lawyer (unless he can wait until I collect the money).  Do you have any suggestions?  What will I have to file?  Should I just call the collector and ask for the money?   Please me your opinion on this matter.  Also, should I report my attorney for not fulfilling is obligations?

Thanks
Shana

Answer
To my knowledge, you do not have Standing to bring a preference action.  That is something that the Trustee in your case must bring in the first instance.  I suppose that the Trustee could give the action to you, which might have been done automatically when the case was discharged, so you could theoretically file a motion to reopen your case, and then file a preference complaint against whoever the creditor is and then litigate it.  It is FAR from a simple matter.  You have to initiate the complaint and then go through a trial on it.  I have no idea what your retainer agreement says with your attorney, but I highly doubt that it included preference litigation.  Calling the collector and asking for the money back might be your best shot, because going the preference route, if possible, would be rather expensive.