Every client deserves competent advice in order to plan their lives, but they also need to be able to avoid unforeseen results.
Helping a client protect important assets before filing bankruptcy has always been seen as appropriate “pre-bankruptcy planning. To quote Ret. Bankruptcy Judge Sarah Curley “it is malpractice not to provide competent pre-bankruptcy counsel”.
A good friend of mine, Larry Karandreas, said “are we at a time that good advice = bad faith?”. This is a warning to all consumer debtor attorneys and their clients. The adage refers to the reality that the consumer bankruptcy world is changing. Reduced bankruptcy filings result in the bankruptcy trustees, their attorneys and the US Trustee’s Office having more time to spend nit-picking every bankruptcy case filed. What was good solid good faith pre-bankruptcy planning yesterday may result in a bankruptcy action alleging “bad faith” today.
One Arizona bankruptcy trustee attorney received over one million dollars a year for several years running.
The behind the scenes reason for this increased scrutiny is that the bankruptcy trustees and their attorneys are hungry. Bankruptcies are down, but their firm and life style were built on earning a very healthy income. Now they are desperate to keep up that same level of income.
The behind the scenes reason for this increased scrutiny is that the bankruptcy trustees and their attorneys are hungry.
Their firm and life style were built on earning a certain amount of money. When bankruptcy filings were up there was plenty of work to be done on those files where debtors actually did something inappropriate. The bankruptcy system was well-served by the trustees and their attorneys pursuing the bad actors who had committed a bad faith act. This was healthy for the system and the creditors. The debtor received their discharge and all was well with the world.
For instance, Terry Dake, an Arizona trustee attorney received approximately one million dollars a year for several years (e.g. 2018 $896,120.80, plus costs – see report below).
Not so much today. Bankruptcy filings are down. This is good for the economy, but the trustees and their attorneys still have a lifestyle that reflects a more affluent time. The only way they can feed that lifestyle is to pick at the small and most innocent of acts. Including those acts that were never considered inappropriate or “bad faith” yesterday. Innocent debtors receive good legal advice from their experienced bankruptcy counsel. According to the law or prior cases this advice was long settled as good advice. These innocent debtors follow their attorneys direction and take the appropriate action. Actions such as using their vehicle as collateral for funds; funds used to feed their family.
Unfortunately, the hungry trustees and/or their attorneys jump on the innocent debtor alleging “bad faith”.
Defending this action will cost the debtor, and perhaps their attorney. Threatening this action really amounts to blackmail. Trustees and/or their attorney know the debtor cannot afford to litigate. They realize they can strong-arm the debtor into paying something in order to make the lawsuit stop. Unfortunately, most of the Arizona bankruptcy judges have not admonished these trustees and their attorneys. This only encourages their continued blackmail.
How are these blackmail funds used?
The funds are paid first to the trustee, then to the trustee’s attorney and, lastly, to the creditors. The trustee is paid 25% of the first $5,000 collected, with a sliding scale from there. The trustee’s attorney is paid all of their fees and costs. Which really rewards the attorney for bringing or threatening to bring a bad faith action (whether credible or not). How about the creditors? One of the trustee’s duties is to maximize the return to creditors. With these types of actions is there normally something left to pay to the creditors? Typically very little, if any. In fact, it may cost the creditor more money than they receive due to the overhead related to applying accounts receivable. Too complicated to explain here, but just know the creditors are really irritated by the trustees sending them checks in small amounts ( e.g. under $100).
How Can I Help You?MUSINGS FROM DIANE:
We have several videos on this site. Such as the following:
- “The Chapter 7 Process”
- “The Chapter 13 Process”
- “Arizona Exemptions”