Wednesday, July 29, 2020

Can You Discharge Divorce Attorney Fees in Bankruptcy?

Divorce and bankruptcy often go hand-in-hand.  The increased expenses of dividing one household into two, paying court filing fees, and paying two attorneys can lead the newly divorced to consider their debt relief options.  At times, that debt relief option is chapter 7 bankruptcy - and for many, it can eliminate debt in a matter of months, including divorce attorney's fees.

How Divorce Attorneys Bill Their Clients

Most divorce attorneys collect a retainer fee (which functions as a deposit) and bill their clients "by the hour."  In other words, the client pays an initial deposit that the attorney holds in a trust account.  As the attorney works on the client's case they bill the client according to the attorney's hourly rate.  At the end of each month, they send an invoice to their client that reflects the attorney's hourly rate multiplied by the total number of hours worked by the attorney for that month.  Shortly after the invoice is sent the attorney withdraws that amount from the client's "retainer fee."

If The Divorce Attorney Didn't Charge A Retainer Fee And The Client Files Bankruptcy

However, some divorce attorneys take the risk of working on their client's case without a retainer fee.  In that scenario, the attorney hopes that the client will pay their bill, but there's no guarantee. Unfortunately, if the client files chapter 7 bankruptcy - usually due to debts other than attorney fees - the general unsecured attorney fees will be discharged in a chapter 7 bankruptcy.

Thursday, June 25, 2020

Are Debts for Personal Injury Resulting From A DUI Car Accident Dischargeable in Bankruptcy?

DUI car accidents can result in serious and sometimes fatal injuries.  Due to the potential severity of DUI auto accident injuries, many civil judgments against DUI drivers are substantial.  With such significant judgments, some DUI drivers may wonder whether they can escape liability in chapter 7 bankruptcy. 

So, the question is: Are Debts for Personal Injury Resulting From DUI Car Accidents Dischargeable in Bankruptcy?

Thankfully the Bankruptcy Code protects DUI personal injury victims.  Section 523(a)(9) of the Bankruptcy Code states:

(a) A discharge under...this title does not discharge an individual debtor from any debt...(9)
for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance

Accordingly, debts for personal injury resulting from a DUI car accident cannot be eliminated in bankruptcy.  With that said, note that the section only applies to debts for personal injury or death.  Debts for property damage after a drunk driving car accident may be dischargeable.

How To Prove That The Personal Injury Resulted From A DUI Car Accident

In many cases, the creditor will use the prior state court judgment as proof the injury was the result of a DUI car accident.  Absent that judgment, the creditor can still establish the required elements to deny discharge before the Bankruptcy Court.  Those elements are as follows:

the debt resulted from (1) a death or personal injury, (2) caused by the operation of a motor vehicle by the debtor, and (3) the unlawfulness of the operation because the debtor was intoxicated from using alcohol, a drug, or another substance.  (In re Felski)

Friday, January 24, 2020

Eliminating divorce attorney fees in bankruptcy

In chapter 7 bankruptcy general unsecured debt is included in the discharge order.  In practical terms, this means that credit card debt, medical bills, and payday loans are eliminated after the order for discharge is entered by the Bankruptcy Court.  However, what many clients don't know is that past attorney fees may be included in the discharge order and thereby eliminated in bankruptcy.

Divorce Attorney Fees in Bankruptcy

Most divorce and family law attorneys charge an initial retainer fee and bill against that retainer according to their hourly rate as they work on a case.  As a result, the attorney is guaranteed payment as they work on the case.  If the retainer is depleted and the client doesn't replenish the trust balance by making another payment, the attorney can withdraw from the case.  In essence, the client pays only for work as it's performed and the attorney is guaranteed payment as they work on the case.

However, in some cases, a family law attorney will work on a case without the security of a positive trust balance consisting of a retainer fee.  In these cases, the attorney may be working with the hope that the client will have money after marital property is sold or support ordered.  When divorce attorneys bill by the hour in these instances there is a risk that the client won't pay the bill and debt will accrue.  Unsurprisingly, some clients can't afford their attorney fees after divorce and turn to Bankruptcy for relief.

In chapter 7 bankruptcy divorce and family law attorney fees can be discharged and thereby eliminated as general unsecured debt.  That's possible in cases where the attorney does not have a lien against real estate but rather sends invoices in the hope the client would later pay for services.

Saturday, August 17, 2019

The Debts After Divorce That Don't Go Away in Bankruptcy

Divorce is an expensive process.  First, you have to hire a family law attorney - and possibly use credit cards to pay such a large expense.  Then you have to pay court filing fees, process servers and related expenses.  After divorce you may have to establish a new household which means new rent or mortgage, maybe another car and everything else that goes into establishing a new home.  Those additional expenses can be bad enough, and for many people mean additional credit card debt.  Unfortunately, some people coming out of divorce also face new expenses in the form of spousal support and child support.  With credit card debt, additional living expenses, and domestic support obligations many people wonder whether bankruptcy after divorce is a solution.

Credit Card Debt After Divorce

The good news is that credit card debt is generally dischargeable in bankruptcy.  Credit card debt that is unsecured can be eliminated in chapter 7 bankruptcy and chapter 13 bankruptcy without much difficulty.  The only exception pertains to very recent credit card debt which may be vulnerable to claims of "bankruptcy fraud."  Nevertheless, with the guidance of a local bankruptcy attorney credit card debt is one of the easiest forms of debt to eliminate in bankruptcy.

Child Support and Spousal Support After Divorce

Whereas bankruptcy can provide relief with respect to credit card debt, it does not relieve debtors of their obligation to pay past and future child and spousal support.  Simply put, domestic support obligations as defined in the bankruptcy code include child support and spousal support - and unfortunately, the bankruptcy code makes domestic support obligations non-dischargeable in chapter 7 bankruptcy and chapter 13 bankruptcy.

Monday, October 23, 2017

All The Costs That Go Into Chapter 7 Bankruptcy

The primary costs of filing chapter 7 bankruptcy consist of (1) attorney fees, (2) the court filing fee, (3) credit counseling and (4) optional fees such as ordering a credit report, tax transcript or real estate appraisal.

Attorney Fees

Many articles have been written about how much a bankruptcy attorney costs, but the general range in Sacramento is $500 to over $2,000.  Some of the cheapest bankruptcy attorneys can be found on Craigslist and some of the most expensive are on television ads.  To find an effective middle ground many consumers look to the internet.  Many reasonably priced bankruptcy attorneys with favorable reviews can be found with a simple Google search and quick phone consultation. 

$335 Chapter 7 Court Filing Fee

As of 2017 the chapter 7 court filing fee in the Eastern District of California is $335.  If clients cannot pay the entire $335 before filing a filing fee installment plan may be obtained.  When the court approves such a filing fee installment plan the entire $335 court filing fee can be paid over 4 months after the case is filed.  Filing fee installment plans allow clients to pay a little over $83 a month for 4 months while their case is pending with the automatic stay in place.

Credit Counseling

Credit counseling is required before a chapter 7 bankruptcy petition can be filed.  Fortunately, internet credit counseling can cost as little as $15.  Telephone credit counseling can cost more, typically $35.  To learn more about credit counseling visit DECAF, a U.S. Trustee approved agency.

Optional Fees

Optional fees that may not be required in every case include costs associated with ordering credit reports, tax transcripts and real estate appraisals.  

Sunday, August 9, 2015

Some Reasons Why You Don't Have A Simple Case

Many bankruptcy attorneys get calls from prospective clients who swear they have "a simple case."  Of course, we all want to believe that our case is simple, especially when a complicated case may warrant a higher fee.  However, these prospective clients are often a poor judge when evaluating the complexity of their chapter 7 or chapter 13 bankruptcy case.

When Your Bankruptcy Is Not Simple

  1. Tax Debt.  The inquiry into whether tax debt is dischargeable is not a simple one.  It requires more than a base understanding of the language of Section 523.  Have you made an offer in compromise?  Did you file your taxes before they were assessed by the IRS?  These questions need to be answered before filing, and this inquiry is something that makes a case anything but simple.
  2. You're new to the State.  If you have not continuously resided in California (or whatever state you live in now) for the past 2 years you might not be able to use California exemption law (or the exemption law of the state you live in now) to protect your assets in bankruptcy.  Since your bankruptcy lawyer in California is most familiar with California exemption law, having to use another state's exemptions to protect property makes the case more difficult. 
  3. Self Employed.  If you have your own business and file chapter 7 bankruptcy the Trustee may require that your attorney file a motion to compel abandonment.  Any case where motion work may come into play is not an easy case.
  4. Real Estate.  The largest asset in consumer bankruptcy cases are often homes.  Since your bankruptcy attorney must protect your home in chapter 7 bankruptcy it's value must be determined prior to filing.  If this value is close to the amount of equity you can protect in bankruptcy, your attorney will be working more on your behalf as he or she goes back and forth with the Trustee on your home's value.  
  5. You're Pushy.  It's true that the squeaky wheel get's the grease, so a little "presence" can help move your case along.  However, being aggressive or "pushy" with your attorney can sour the attorney-client relationship.  If your attorney is thinking that your personality alone will require more of their time then you can expect a higher quote after the free consultation.  

Thursday, May 7, 2015

Can You Eliminate Immigration Attorney Fees in Chapter 7 Bankruptcy?

Some clients want to know if their debt to an attorney can be eliminated in chapter 7 bankruptcy.  The situation may involve a former divorce attorney, criminal lawyer, or as is becoming more common, an immigration attorney.  

Immigration attorney fees are generally dischargeable in chapter 7 bankruptcy.  Whether the immigration attorney charges a flat fee or by the hour does not change the dischargeability of the debt.  Attorney fees are usually unsecured debt, just like credit cards and payday loans, that are included in a chapter 7 discharge. 

 Some clients believe they are in debt to their former attorney when they in fact owe credit card companies.  Many attorneys including immigration attorneys accept credit card payments.  When clients make a credit card payment to an attorney they have paid the attorney but now owe the credit card company the amount charged plus interest if not paid in full by the due date.  Since a part of bankruptcy is accurately listing your creditors and their contact information it is important for clients to understand who they owe before filing chapter 7 bankruptcy.

Monday, April 6, 2015

Why Filing Bankruptcy in Lake County is No Easy Task

If you're looking for a bankruptcy attorney in Lake County your search will not last very long.  With only a handful of bankruptcy attorneys in Lakeport, Clearlake, Kelseyville and surrounding communities Lake County residents don't have many options.  A quick internet search will yield 2-3 local attorneys holding themselves out as bankruptcy attorneys, but who in truth are more general practice than bankruptcy specific.

With such a small population of local bankruptcy attorneys many Lake County residents look to Santa Rosa for bankruptcy representation.  Located only an hour and fifteen minutes away Santa Rosa is not exactly next door, but not too far away either.  More to the point, there are many more bankruptcy attorneys for prospective clients to choose from, with many attorneys charging much less than Lake County attorneys.

The bottom line: prospective Lake County bankruptcy clients should look to Santa Rosa for cost-effective representation.

Tuesday, July 8, 2014

The "Best" Bankruptcy Lawyer?

No attorney can claim to be the “best” bankruptcy attorney. All California attorneys must comply with Rule 1-400 of the California Rules of Professional Conduct which prohibits false, deceptive or misleading communications. Accordingly, any bankruptcy attorney claiming to be the “best” would likely violate this rule since the classification is inherently deceptive and misleading. 

No bankruptcy attorney can claim to be the “best,” but many can be honest and diligent.

Instead of searching for the best bankruptcy attorney, look for an attorney who is straightforward, punctual and empathetic. A straightforward attorney will not be evasive in their answers or noncommittal of what is and is not included in their fee. Likewise, an honest attorney will not quote one amount where a different amount is identified in the representation agreement. While the difference between the verbal quote and written amount may be technically honest if the attorney is careful with their language, the practice may have the intended effect of misleading you...Keep Reading

Friday, May 2, 2014

Credit Counseling Before Filing Bankruptcy

It's not hard to take credit counseling

One of the many unfortunate results of the 2005 BAPCPA is the credit counseling requirement. People who want to file chapter 7 or chapter 13 bankruptcy must complete credit counseling from an approved credit counseling agency.  While not difficult to complete, credit counseling stands as yet another hurdle to be cleared before filing.

You can take credit counseling online or over the phone.  Phone providers generally charge more, sometimes as much as $40 for the hour-long course.  Internet providers are less expensive with many courses ranging from $10 to $20.  DebtorCC offers a $10 online credit counseling course without any wait time between completing the course and emailing the certificate.  Therefore, those wishing to file an emergency bankruptcy petition are well served by taking DebtorCC's credit counseling course.

There's no way to fail credit counseling.  You really just need to complete the course and get the certificate.

Thursday, April 10, 2014

The Importance of a 3 Source Credit Report Before You File Bankruptcy

Know Who Owns Your Debt

It will cost you several thousand dollars to file bankruptcy, so why would you jeopardize the success of your bankruptcy to save $50?  A good 3 source credit report will cost you about $30 to $50; not much  money compared to the $306 chapter 7 filing fee or several hundred dollar attorney fee.  By obtaining a 3 source credit report you will know who owns your debt, how much you owe them, and the last 4 digits of the account number relating to each debt.  If you look at Schedule F you will understand that this information is incredibly helpful.

Tuesday, April 8, 2014

The Dangers of an Emergency Bankruptcy Filing

Filing An Emergency Bankruptcy Petition Is Not Without Danger

So you're facing a lawsuit, wage garnishment, foreclosure, or any other imminent collection event that prompts you to contact a bankruptcy attorney.  After a brief consultation the attorney tells you that he can file a bankruptcy petition with the court right away, and that by doing so your collection event will stop immediately.  This power of the automatic stay coupled with the attorney's low fee sounds great, so you file an emergency bankruptcy petition.

Now the clock is ticking...

Filing this bare bones petition is the easy part.  Now you have 2 weeks to file the remaining schedules, statements, and required documents.  This means that you have about 1 week to give the attorney 6 months of pay stubs, 2 years of tax returns, 6 months of bank statements, and any other document the attorney requests.  Furthermore, depending on the bankruptcy attorney you may need to complete a 30-40 page bankruptcy workbook.  If you can't get these documents to the attorney quickly enough he won't have time to draft the outstanding schedules, statements, and required documents.  In that event, your case will be dismissed.

In brief, an emergency bankruptcy filing gives you a brief window of time to furnish a large amount of documentation.  Likewise, the attorney is under time pressure to draft your outstanding documents and file them with the court within the 2 week period.  Therefore, emergency bankruptcy filings are by no means easy; they require close communication and fast action by the attorney and client.

Tuesday, March 18, 2014

Why Chapter 7 Bankruptcy Can Be Difficult in Santa Rosa

Chapter 7 Bankruptcy Can Be Hard in Santa Rosa

Santa Rosa lies in the heart of the wine country.  For residents of this Northern California resort destination life can be expensive.  With rental prices easily exceeding one thousand dollars per month Sonoma County is not the most affordable area.  Unfortunately, many hard working residents of Santa Rosa fall victim to the high cost of living in Sonoma County and turn to bankruptcy for debt relief.  These very same residents who are already dismayed at the thought of bankruptcy are further crushed when they learn that they make too much money to qualify for chapter 7 bankruptcy

To qualify for chapter 7 bankruptcy a Santa Rosa resident's annualized current monthly income (the average monthly income over the past 6 months) must be below the California median family income for a household of the same size.  For residents of this expensive area with wages to offset the higher cost of living this California median threshold can be a difficult one to fall below.  As a result, many residents make what the Bankruptcy Code considers to be too much money to qualify for chapter 7 bankruptcy.  However, they can still file chapter 7 bankruptcy if they can pass the means test.

The means test is a calculation designed to determine whether filing chapter 7 bankruptcy would be an abuse in that the individual has enough money to fund a chapter 13 repayment plan.  Certain expenses can help the individual pass the means test and thereby qualify for chapter 7 bankruptcy.  Child care, tax obligations, alimony, child support, mortgages, and car payments, among other expenses can help residents of Santa Rosa pass the means test.  With that said, it is important to note that not all monthly expenses count, only certain expenses.  Therefore, if you're considering filing chapter 7 bankruptcy in Santa Rosa you should consult with a local bankruptcy attorney.

Sunday, February 16, 2014

Virtual Bankruptcy Representation

The limits of virtual bankruptcy representation in the 9th circuit

Many people can't afford to hire a bankruptcy attorney. As a result, California bankruptcy courts have been overrun with pro se petitions, often fatally flawed leaving indigent filers with dismissed cases and no discharge. To lower costs and make bankruptcy representation more affordable some California bankruptcy attorneys have attempted to provide virtual representation. While many definitions of virtual legal representation exist, the general idea is that the attorney uses technology to replace office visits. In bankruptcy this model would include the use of email, phone and regular mail for attorney-client communication. For instance, gives an overview of virtual bankruptcy representation which includes use of online forms and electronic contracts in the bankruptcy process. While this model is acceptable for pre-filing work, virtual representation has a major limitation after filing according to 9th circuit case law.

No virtual representation at the meeting of creditors

If a bankruptcy attorney agrees to represent a client in chapter 7 bankruptcy they cannot exclude representation at the meeting of creditors. In so many words, your bankruptcy attorney must facilitate attorney representation at the meeting of creditors, otherwise known as the 341 meeting. The court in Hale v. Trustee ruled that your attorney's appearance at the 341 meeting is necessary service required to adequately represent you in your bankruptcy case. Therefore, a bankruptcy attorney cannot exclude that service from the scope of their representation, and therefore cannot engage in 100% virtual representation in bankruptcy. In essence, a bankruptcy attorney must make a physical appearance at the meeting of creditors.

Monday, February 3, 2014

How To Stop Foreclosure in Roseville

If you're facing foreclosure in Roseville CA you're not alone. At the peak of Roseville's real estate market home prices were inflated and mortgages easy to secure. Real estate agents sold overpriced homes to highly leveraged buyers. When the Roseville real estate bubble burst many homeowners were highly leveraged. As the economy declined some of these highly leveraged individuals experienced a disruption in income through no fault of their own. With less money these individuals incurred greater debt and fell behind on their massive mortgage payments. As a result, foreclosure greeted many of these homeowners. If you're facing foreclosure in Roseville you have some options. If you don't want to keep the home, but do want to eliminate your liability for the mortgage, chapter 7 bankruptcy can be the right solution. When you file chapter 7 bankruptcy the foreclosure process will temporarily be halted. However, the lender will eventually (normally after a few months) be able to resume foreclosure and sell the house. Fortunately, if they sell the house for less than you owe you will not be liable for the deficiency. In brief, your chapter 7 bankruptcy will have discharged your liability for the mortgage debt. Therefore, you can walk away from the house free and clear. If you want to keep your home you will need to file chapter 13 bankruptcy. After hiring a Roseville chapter 13 bankruptcy attorney you will propose a repayment plan to the court in which you will repay your late mortgage payments over 3 to 5 years. Once you have made all these payments you will no longer be in default and can keep your home after bankruptcy. In so many words, chapter 13 bankruptcy allows you to catch up on your payments while you keep your home. Hence, if you need to stop foreclosure in Roseville but want to keep your home you should file chapter 13 bankruptcy.

Sunday, December 29, 2013

Foreclosure Defense Strategies in Sacramento

Show me the note!

Many online bloggers instruct homeowners in default to adopt the "show me the note" defense when facing foreclosure.  In essence, the homeowner is supposed to demand that the lender produce the original promissory note to evidence their right to pursue foreclosure in the event of default.  As mortgages are bought, bundled, and sold in the secondary market this tactic is designed to exploit this vulnerability of securitization.  However, courts have routinely held that non-judicial foreclosure can proceed without the lender producing the original promissory note.  As a result, the "show me the note" defense has become something of a pipe-dream among buyers in default.

So, what's the answer?

File chapter 13 bankruptcy.

Chapter 13 bankruptcy is a powerful tool in foreclosure defense.  In chapter 13 bankruptcy you can force your lender to accept your repayment terms while you keep your home.  In brief, you will repay your late mortgage payments over several years, and in exchange you will get to keep your home.  

Friday, December 6, 2013

Wage Garnishment & Bankruptcy

Many people experiencing a wage garnishment turn to bankruptcy.  In short, bankruptcy can stop a wage garnishment and discharge the underlying debt.  In fact, once a bankruptcy petition is filed with the court the "automatic stay" prevents the continuation of a wage garnishment.  For example, if you have a wage garnishment effective on Monday, but file bankruptcy on Tuesday, you will not have a 25% deduction from your wages on Wednesday.  The relief provided by the automatic stay is often the motivating force for debtors to call a bankruptcy attorney.  However, waiting until a wage garnishment is active is often a sign that the debtor should have called a bankruptcy attorney earlier.  With advance planning a bankruptcy petition can be filed before a wage garnishment comes into existence, thereby protecting wages and making the entire bankruptcy process generally easier and less rushed.

Monday, November 18, 2013

Bankruptcy Quotes: Finding BK Lawyers

While personal referrals are the best way to find a trusted bankruptcy attorney, many people do not want to share their financial troubles with friends or relatives. If personal referrals are not an option for you using the internet may be your best tactic for finding a good bankruptcy attorney. How To Find A Bankruptcy Attorney on

You should be looking for a qualified bankruptcy attorney who charges a transparent fee. You should hire a bankruptcy attorney who has their act together and who adds value to your case by charging less than the estimated value of your discharge. The right bankruptcy attorney will take their time explaining the law to you during the free consultation, and will not pressure you to sign a representation agreement. Once you have found a Santa Rosa bankruptcy attorney like this, consider hiring them to represent you in your bankruptcy. You will probably fare better with this bankruptcy attorney than a supposedly “cheap” one.

Tuesday, November 12, 2013

How Much Does Chapter 7 Bankruptcy Cost?

Everyone wants to know what their bankruptcy will cost before they pick up the phone and call a bankruptcy attorney.  Unfortunately, bankruptcy attorneys do not post prices online or guarantee certain prices in advertisements.*  Hiring a bankruptcy attorney is not like ordering a medium pizza.  All chapter 7 bankruptcies do not cost the same amount; the total cost of your chapter 7 bankruptcy will depend on the complexity of your case

If you have a no-asset case (all assets are covered by bankruptcy exemptions) your chapter 7 bankruptcy will cost less.  If you have very little income such that you circumvent the means test your bankruptcy will cost less.  If you do not have any dischargeability issues, do not own a business, and do not have any problem debts your bankruptcy will also cost less.

The cost of your chapter 7 bankruptcy will include the attorney's fee, filing fee, credit counseling, and possibly the cost of buying a credit report and tax transcripts.

*(Well, that's not strictly true.  Some petition mills post ads guaranteeing a certain price for a chapter 7 bankruptcy, but the total cost of chapter 7 bankruptcy always turns out to be greater than the posted price.)

Thursday, October 31, 2013

Qualifying For Chapter 7 Bankruptcy In Sonoma County

Qualifying For Chapter 7 Bankruptcy With High Income in Santa Rosa, CA

Filing for bankruptcy in Sonoma County or Sana Rosa, CA is generally similar to filing in other locations in the Norther District of California, but the relatively high average income for the County, and by extension your own high income, may be holding you back from qualifying for chapter 7 bankruptcy.  Remember, to qualify for chapter 7 bankruptcy you must pass the means test or have income below the state median for a household of your size.  Sonoma County and Santa Rosa residents may have incomes reflective of the higher cost of living in the area, and this high income may be sabotaging their eligibility for chapter 7 bankruptcy.  If your income is holding your back from chapter 7 bankruptcy here are a few things you should consider.

Talk to an experienced Santa Rosa bankruptcy attorney

An experienced Santa Rosa bankruptcy attorney can help you structure your expenses over 6 months to pass the means test in bankruptcy.  Under the means test certain expenses can be deducted.  An experienced Santa Rosa bankruptcy attorney will take an itemized list of your current expenses and tell you which expenses should become a priority and which should be decreased.

Start the process early

Many people considering bankruptcy wait until the last minute.  As soon as things become unbearable they turn to a bankruptcy attorney expecting the process to take days instead of months.  In reality, bankruptcy is best when there are a few months to prepare.

Don't hire the cheapest attorney in Santa Rosa

A cheap Sonoma County bankruptcy lawyer may just look at your situation and tell you to file for chapter 13 bankruptcy.  These attorneys may just look at your income and say "well, it's above the state median for a household of your size, so you don't qualify for chapter 7 bankruptcy."  A good bankruptcy attorney in Santa Rosa, CA will run the means test, deduct your secured debt payments and allowed expenses, and explore the possibility of increasing deductible expenses.  In short, pay a little more for an experienced bankruptcy attorney.