Input/Tips Sought - Chapter 7 with Potential 523 Issues
Posted: Fri Nov 25, 2016 8:17 am
Jonathan,
I agree with everything that has been said. I have never worked in
criminal defense law, but I've had a couple shaky clients where I learned
things after beginning my representation that would have led me not to take
the case if I had known earlier.
Because I had already been paid and didn't want to immediately make a
refund to the debtor(s), I did a couple things to try and protect myself
and also to help the client.
First, I made it clear to the client that I would not sign the bankruptcy
petition or any other document filed with the court that I did not believe
to be accurate and truthful. If I doubted the amounts listed for bank
accounts then I would need to see the statements for confirmation. If the
debtor stated the statements were not available, then that would need to be
mentioned on the petition. [I also have all prospective clients sign that
they have received certain disclosures, attached, on our first meeting.]
Second, I explained to the client that his statements made in the petition
and at the meeting of creditors are made under penalty of perjury and that
there are serious consequences for making false statements. I think I
repeated the information on the wall signs at every 341 meeting.
Third, I explained that a bankruptcy trustee has the power and the duty to
investigate the debtor's financial affairs and assets, and that if the
debtor is not truthful it is highly likely the trustee will find out.
Finally, I would explain the difference between the discharges obtained in
a chapters 7 case versus a chapter 13 full compliance case - see Section
523(a). A chapter 13 full compliance -1328(a) discharge is much more
extensive and can discharge a debtor's liability for money obtained by
fraudulent means and false pretenses. A chapter 13 case is easier to
dismiss, as well, if that becomes desirable (though a chapter 13 trustee
may object to dismissal if there are clear signs that the petition was
filed to defraud creditors, and limited other reasons). I've also given
such clients a brief understanding of "taking the fifth" and recommended
that they have a criminal defense attorney on speed dial if they intend to
commit perjury. [and a clear statement in my fee agreement as to the scope
of my services, which do not include criminal defense]
In two such cases I handled, the bankruptcy went through without too much
hassle. In one there was an adversary proceeding by a creditor, but not by
the trustee. The adversary was dismissed shortly after the debtor
answered. In the other, the creditor requested and held an extensive 2004
Examination, but did not timely file an adversary proceeding, and the
discharge was granted.
In one other case, I calculated my lodestar and refunded to the debtor the
balance of what I was paid. I did this even though my fee was stated as
"nonrefundable".
All three of the cases mentioned were in the Central District of California.
Kindest regards,
Link Schrader
On Wed, Nov 23, 2016 at 12:20 PM, Larry Simons larry@lsimonslaw.com
[cdcbaa] wrote:
>
>
> To piggy back on Pats comments, I always advise my clients and other
> attorneys that a debtor will never lose his/her discharge for over
> disclosure. In my little universe, the twin pillars of disclosure and
> cooperation are the keys to having a case go smoothly.
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *Sent:* Wednesday, November 23, 2016 10:00 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] Input/Tips Sought - Chapter 7 with Potential 523
> Issues
>
>
>
>
>
> Jonathon:
>
>
>
> You have two options here: listen to the collective wisdom and avoid big
> trouble or learn the same lesson the hard way by representing this client.
>
>
>
> I want to add that the number of red flags in this case is scary. One
> failure to disclose is all that is reasonable and even that may be too
> much. An innocent oversight that is immediately corrected might be a
> reason to keep a client who has failed to disclose something. Continued
> attempts to withhold information are a clear signal that the client is
> dishonest and is trying to job the system. Always begin your
> representation with emphasizing the need to disclose, disclose, disclose.
> Read the clients expression and listen to their words in reaction to that
> admonition. That is your first test of your client's veracity. If they
> look down, if they look away, if they tighten their lips while you are
> emphasizing the importance of disclosure, you know that you have a liar on
> your hands. Run, don't walk, away from the client, they will take you
> under with them.
>
>
>
> If you have any questions or concerns, please contact me.
>
>
>
> Pat
>
>
>
> Patrick T. Green
>
> Attorney at Law
>
> Fitzgerald & Green, Attorneys at Law
>
> 1010 E. Union St. Suite 206
>
> Pasadena, CA 91106
>
> Tel: (626) 449-8433
>
> Fax: (626) 449-0565
>
> pat@fitzgreenlaw.com
>
>
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com
> ]
> *Sent:* Tuesday, November 22, 2016 8:03 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Input/Tips Sought - Chapter 7 with Potential 523
> Issues
>
>
>
>
>
> If the client refuses to cooperate with you by fully disclosing bank
> statements and financial history - fire the client. You put your
> reputation on the line when you file a case Doing so without bank
> statements to back up the client's representations invites trouble. Plus
> the client will always point the finger of blame at you the second anything
> goes wrong!
>
> Sent from my iPhone
>
>
> On Nov 22, 2016, at 10:45 AM, 'Jonathan Vaknin' jonathan@voklaw.com
> [cdcbaa] wrote:
>
>
>
> Greetings colleagues:
>
>
>
> I have a client wanting to file Chapter 7 immediately, against my advice.
>
>
>
> There is the potential of 523 issues to emerge with respect to a sizeable
> cash advance taken out in the recent past from a credit union credit card
> account. It took some digging for me to have my client divulge that he
> took out around $8,000.00 - $10,000.00 days before he retained us in early
> October.
>
>
>
> In addition to that, while trying to prepare schedules, the client has
> been inconsistent with providing me bank account balances. I was provided
> figures from $2,000.00 to the $8,000.00 to $10,000.00 range. I was later
> informed that the monies derived from the proceeds of the cash advance
> mentioned above. The client is consequently unwilling to provide me with
> bank statements. I naturally have concerns that there may be more monies
> sitting in his account than he is disclosing.
>
>
>
> This clients level of resistance to be cooperative coupled with his
> willingness to act against my advice is very concerning. I advised the
> client of the potential for causes of action by his creditor(s) to except
> the cash advance and any other recently acquired debts from discharge. I
> recommended that he make a couple of months of payments to these creditors
> before filing for Chapter 7. The advice is unfortunately not being given
> serious consideration.
>
>
>
> Im curious to see how my fellow colleagues in the community would deal
> with this type of situation.
>
>
>
> Thank you,
>
>
>
> *Jonathan N. Vaknin, Esq.*
>
> Associate Attorney
>
> 213-986-4323 x104 (direct) | 310-881-6996 (fax)
>
> jonathan@voklaw.com (email) | www.VokLaw.com
> (website)
>
>
>
> VOKSHORI LAW GROUP
>
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>
>
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Link W. Schrader, Attorney
Law Office of Link W. Schrader
P.O. Box 412914, Kansas City, Missouri 64141
Missouri/Kansas: (816) 841-2642 (No Texts); California: (310) 413-6924
(Phone or Texts )
Fax: (310) 878-4158; www.schrader-law.com
Admitted to practice law in all courts in California and Missouri, and in
the federal courts in Kansas.
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