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Question re Debtor hiring counsel for her state court
The varied text size in my prior email was unintentional.
Nick makes some good points as always.
On Thu, Jun 6, 2013 at 3:56 PM, Kirk Brennan wrote:
> I think your idea of showing up as bankruptcy counsel and ask for a
> continuance is a good one. Explain that you can't hire new counsel yet due
> to the pending hearings in the bankruptcy court.
>
>
> On Thu, Jun 6, 2013 at 3:11 PM, Holly Roark wrote:
>
>> **
>>
>>
>> I subbed into a problem CH 7 case and am trying to convert it to a
>> Chapter 13.
>>
>> My motion to convert to Chapter 13 is pending and will be opposed by the
>> Chapter 7 Trustee who has a pending motion to hire counsel (I opposed his
>> motion.)
>>
>> Debtor has 4 state court actions 3 where she is plaintiff, 1 where she
>> is defendant. Her former counsel subbed out and put her in pro per in ALL
>> the actions. In a state court action where she is plaintiff there is
>> an OSC re sanctions for her alleged bad conduct postpetition. These cases
>> are assets of the bankruptcy estate.
>>
>> I found competent counsel to sub into all these cases for her. Can the
>> Debtor hire this counsel? Or can only the CH 7 Trustee hire counsel until
>> (or unless) we convert to Chapter 13?
>>
>> The pending problem right now is that the OSC hearing in state court is
>> prior to my Conversion motion. I don't want Debtor to go there in pro per,
>> but I can't be heard as her "counsel" unless I formally sub in, and I can't
>> do that because it's an elder abuse case - not my area of law. I can show
>> up as bankruptcy counsel and maybe ask for a continuance but I don't think
>> I can represent her on the substance of the sanction motion.
>>
>> Suggestions on how to handle??
>>
>>
>> Holly Roark
>> Certified Bankruptcy Specialist*
>> holly@roarklawoffices.com **primary email address**
>> www.roarklawoffices.com
>> Central District of California
>> Consumer Bankruptcy Attorney
>> 1875 Century Park East, Suite 600
>> Los Angeles, CA 90067
>> T (310) 553-2600
>> F (310) 553-2601
>>
>> *By State Bar of California Board of Legal Specialization
>>
>>
>> **For a quicker response, email me at holly@roarklawoffices.com.
>> I only use gmail for my listservs, and am likely to miss private emails
>> directed to my gmail account.**
>>
>>
>>
>>
>> --
>> Holly Roark
>> Certified Bankruptcy Specialist*
>> holly@roarklawoffices.com **primary email address**
>> www.roarklawoffices.com
>> Central District of California
>> Consumer Bankruptcy Attorney
>> 1875 Century Park East, Suite 600
>> Los Angeles, CA 90067
>> T (310) 553-2600
>> F (310) 553-2601
>>
>> *By State Bar of California Board of Legal Specialization
>>
>>
>> **For a quicker response, email me at holly@roarklawoffices.com.
>> I only use gmail for my listservs, and am likely to miss private emails
>> directed to my gmail account.**
>>
>>
>>
>>
>
>
>
> --
> Kirk Brennan
>
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Kirk Brennan
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The varied text size in my prior email was unintentional.Nick makes some good points as always. On Thu, Jun 6, 2013 at 3:56 PM, Kirk Brennan <kirkinhermosa@gmail.com> wrote:
I think your idea of showing up as bankruptcy counsel
and ask for a continuance is a good one. Explain that you can't hire new counsel yet due to the pending hearings in the bankruptcy court.
The post was migrated from Yahoo.
I think your idea of showing up as bankruptcy counsel and ask for a
continuance is a good one. Explain that you can't hire new counsel yet due
to the pending hearings in the bankruptcy court.
On Thu, Jun 6, 2013 at 3:11 PM, Holly Roark wrote:
> **
>
>
> I subbed into a problem CH 7 case and am trying to convert it to a
> Chapter 13.
>
> My motion to convert to Chapter 13 is pending and will be opposed by the
> Chapter 7 Trustee who has a pending motion to hire counsel (I opposed his
> motion.)
>
> Debtor has 4 state court actions 3 where she is plaintiff, 1 where she
> is defendant. Her former counsel subbed out and put her in pro per in ALL
> the actions. In a state court action where she is plaintiff there is
> an OSC re sanctions for her alleged bad conduct postpetition. These cases
> are assets of the bankruptcy estate.
>
> I found competent counsel to sub into all these cases for her. Can the
> Debtor hire this counsel? Or can only the CH 7 Trustee hire counsel until
> (or unless) we convert to Chapter 13?
>
> The pending problem right now is that the OSC hearing in state court is
> prior to my Conversion motion. I don't want Debtor to go there in pro per,
> but I can't be heard as her "counsel" unless I formally sub in, and I can't
> do that because it's an elder abuse case - not my area of law. I can show
> up as bankruptcy counsel and maybe ask for a continuance but I don't think
> I can represent her on the substance of the sanction motion.
>
> Suggestions on how to handle??
>
>
> Holly Roark
> Certified Bankruptcy Specialist*
> holly@roarklawoffices.com **primary email address**
> www.roarklawoffices.com
> Central District of California
> Consumer Bankruptcy Attorney
> 1875 Century Park East, Suite 600
> Los Angeles, CA 90067
> T (310) 553-2600
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
> I only use gmail for my listservs, and am likely to miss private emails
> directed to my gmail account.**
>
>
>
>
> --
> Holly Roark
> Certified Bankruptcy Specialist*
> holly@roarklawoffices.com **primary email address**
> www.roarklawoffices.com
> Central District of California
> Consumer Bankruptcy Attorney
> 1875 Century Park East, Suite 600
> Los Angeles, CA 90067
> T (310) 553-2600
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
> I only use gmail for my listservs, and am likely to miss private emails
> directed to my gmail account.**
>
>
>
>
Kirk Brennan
CONFIDENTIALITY NOTICE: This e-mail and any attachments are for the
exclusive and confidential use of the intended recipient. If you are not
the intended recipient, please do not read, distribute or take action in
reliance on this message. If you have received this message in error,
please notify us immediately by return e-mail and promptly delete this
message and its attachments from your computer system. We do not waive
attorney-client or work product privilege by the transmission of this
message.
TAX ADVICE NOTICE: Tax advice, if any, contained in this e-mail does not
constitute a "reliance opinion" as defined in IRS Circular 230 and may not
be used to establish reasonable reliance on the opinion of counsel for the
purpose of avoiding the penalty imposed by Section 6662A of the Internal
Revenue Code. The firm provides reliance opinions only in formal opinion
letters containing the signature of a director.
I think your idea of showing up as bankruptcy counsel
and ask for a continuance is a good one. Explain that you can't hire new counsel yet due to the pending hearings in the bankruptcy court.
On Thu, Jun 6, 2013 at 3:11 PM, Holly Roark <
The post was migrated from Yahoo.
Dear Holly,
Until the case is converted the Chapter 7 Trustee "owns" the bankruptcy estate, and therefore has the exclusive right to prosecute the three state court actions in which your client is the plaintiff.
As for the Chapter 7 Trustee's opposition to your conversion motion, you will undoubtedly face an argument based on Marrama v. Citizens Bank, 127 S. Ct. 1105 (2007). Therefore, you should make absolutely sure that your client's bankruptcy papers were without error, and without anything misleading in them. In addition, you should be prepared to explain the alleged bad postpetition behavior as that could provide ammunition for the Chapter 7 Trustee to use in opposing your conversion motion. Otherwise, the conversion motion may be denied.
As for the action in which she is the defendant, why isn't that case stayed pursuant to 362(a)? Did the plaintiff get a motion for relief from stay granted?
Finally, with respect to the case in which your client is the defendant, it's a bit dangerous to attend the OSC hearing because the state court judge might decide that you must defend your client right there - that has happened in other cases. Therefore, your best move is to instruct your client to attend the state court hearing and ask for a continuance to a date far enough into the future that the conversion is completed, and give as the reason that she is in the process of retaining competent counsel to represent her.
Good luck,
Nick
Nicholas Gebelt, Ph.D., J.D.
Board Certified Bankruptcy Specialist
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The post was migrated from Yahoo.