Can the trustee do this???

[2farindebt]

We filed an amended schedule C (property claimed as exempt) on 9/17/04. We received a notice from the court that the deadline to object to this was 10/18/04. I saw on PACER today that the trustee filed an objection to our amended schedule C on 1/14/05. Can he do that? I found Bankruptcy Rule 4003(b) which states that the trustee or any creditor may file objections to the list of property claimed as exempt within 30 days after the conclusion of the 341 or the filing of any amendment to the list or supplemental schedules unless further time is granted by the court.

[Ladynred]

Well, you picked up the right part of the law, now you have to use it. You can object to the Trustee's objection and use that part of the law - that the Trustee did not timely file his objection per Rule 4003b. Unless the BK court granted him/her an extension of time, then the Trustee missed the boat, but you'd better speak up !

[2farindebt]

Lady, I DID "speak up" earlier this week when I phoned my lawyer and told him I'd called the bankruptcy court to confirm they even got our amended schedule since we hadn't heard from the trustee and the clerk told me since he hadn't objected he "was out of luck". I told my lawyer this and he said he didn't "think" the trustee was bound by the same rules as the creditors and he was surprised the clerk would offer me any kind of opinion. I really think I have a crappy lawyer and I don't know what to do next. I saw that the "objection" was filed on PACER but for some reason I can't open it and read it. It's 3 pages and now I have to wait on the mail to see what the trustee says. The exemption in question is that I "might" receive social security disability benefits - I haven't even been approved as of this date - but the trustee wants any back pay I receive up to the date of filing. I'm so frustrated by it all! My lawyer told me he hasn't "researched" yet whether or not SSDI is exempt and he will do it once I am approved (if I am). Do I now file some kind of objection to the trustee's objection? Help!!

[Ladynred]

Trustees most certainly ARE bound by the Federal Rules of Bankruptcy Procedure !! They don't get a free pass around the law, it applies to them too.

(b) Objections to claim of exemptions.

A party in interest may file an objection to the list of property claimed as exempt only within 30 days after the meeting of creditors held under §341(a) is concluded or within 30 days after any amendment to the list or supplemental schedules is filed, whichever is later. The court may, for cause, extend the time for filing objections if, before the time to object expires, a party in interest files a request for an extension. Copies of the objections shall be delivered or mailed to the trustee, the person filing the list, and the attorney for that person.

(c) Burden of proof.

In any hearing under this rule, the objecting party has the burden of proving that the exemptions are not properly claimed. After hearing on notice, the court shall determine the issues presented by the objections.

The Trustee is a 'party in interest' and this Rule clearly states that the objection must be filed with 30 days after the 341 meeting or 30 days after an amendment is filed, whichever is later. If the Trustee didn't also file a request for an extension, then you SHOULD be able to object to his objection for not filing is objection w/in the 30 days required in this Rule.

[2farindebt]

Lady, there is no notice on PACER of the trustee filing for an extension beyond the 30 days he has to object to our amended schedule. I have researched on the internet and found several US Supreme Court decisions about the trustee not objecting in a timely manner where his requests to keep "exempt" assets were overruled. This is good. However, I also did some more research on PACER and found out that my lawyer has filed just 66 cases since 1985 (14 of them in 2004). I think I'm in deep trouble here. My husband is going to our lawyer's office Monday morning to ask him point blank if he's qualified to help us or if we need another lawyer. What a mess!

[anabanana]

2far--

The extension request might be part of the three pages you can't open. If you IM or email me your case number, I'll try to open it with my pacer acct and email you the doc. You're right to be concerned about your atty's competence. The bankruptcy venue is not for the faint of heart, nor anyone who is not on top of the latest BK developments. You really want someone who is aggressive and attentive. Good luck in questioning him, but you may be stuck unless you've got the money to hire someone else.

Ladyinred... good to see you still in here offering a large order of help without the side of snide. The mouth karate on these boards has really degenerated in the last few months. It's like open season on the posters. Yikes!

[Ladynred]

Hi Anabanana !

Yes, I took a bit of a hiatus from the board, I just had too much to catch up on over and after the holidays. The mouth karate was getting tiresome too, so it gave me a break from that too.

[2farindebt]

Anabanna, Thank you for offering, but I was finally able to open the document and print all three pages. There is no request for an extension of time to object to our exemptions anywhere on our PACER account. Funny thing is, the trustee is using Bankruptcy Rule 4003 as his basis for being able to object and that's the very rule that states he has only 30 days (unless an extension has been granted). He cites no law saying why he thinks our exemptions are not allowed by law (just his word). My husband is going to speak with our lawyer in the morning and ask him once and for all what's going on and if he's qualified to fight this for us. I'll post again after we see our lawyer and light a fire under him!

[2farindebt]

Well, my husband talked to our lawyer this morning about seeing on PACER that the trustee objected to our amended schedule C four months after we filed it and our lawyer QUIT! He said we need a "bankruptcy specialist". GREAT!! Does anyone know if we are entitled to any money back from our first lawyer for not staying with our case until it is closed? Also, does anyone know if we are bound by some time frame within which to replace our lawyer?
One thing the trustee mentioned was that the debtors (me) did not send him a copy of our amended schedule C. We filed it with the court and the court sent him a notice of it - wasn't that good enough? Was our lawyer supposed to mail him a copy separately? This is spiraling out of control now and if the trustee is trying to scare me, he sure is!

[Ladynred]

I believe a copy of any amendments must also be sent to the Trustee, but look in your local rules to be certain. You're probably better off that this lawyer quit, he clearly was NOT qualified enough to follow thru with anything that was other than a 'simple' case with no bumps.

There is no time frame to replace your lawyer, but if you don't have another one before your 341 make sure you tell the Trustee that your first one quit on you when the going got bumpy.

If you have any kind of written agreement with the first lawyer, read it to find out EXACTLY what he was getting paid for. You may be entitled to part of his fee back since he couldn't and wouldn't complete the job he was hired for !

[anabanana]

Lady is right... if you have any kind of fee agreement, see what it says. If you have nothing in writing, you may as well kiss it goodbye, because your only recourse would be to sue him for malpractice, which is another whole passle of headaches that you probably couldn't even pursue, in this case.

In many BK districts, there is an automated mailing system so that any electronic filings automatically go to anyone on the mailing matrix, but if he's not a BK lawyer, he probably doesn't do electronic filing and so even if you have that there in Indiana, he's probably not got the benefit of it. Nevertheless, he's obligated to serve those copies, and he's time bound for when he has to do that. The clerk down here was just helping me with that question this very morning, though my question went to a slightly different angle.

He'll have to file a motion to withdraw. You can file a response to that motion, explaining your version of what went wrong. It won't change anything, but it will get it on the record, because he's sure not going to say, ooops, I took this case and it's over my head. Come to think of it, if he's flaky, he might not even file the Mo for Withdrawal. But the judge may be sympathetic if he sees the failing was on the lawyer's part, not yours.

You need to get a real BK lawyer on this ASAP, no kidding. And if I were you, I'd go to the phone book and pick the guy with the big bankruptcy ad, the fellow who specializes. Then ask around. A lot of BK lawyers aren't really known for being especially caring and responsive to their indigent clientele. Shocking, huh? But even aside from the rules and knowledge of the very complicated BK laws, do not underestimate the power of your lawyer's relationship with the court, ESPECIALLY in bankruptcy. When some general practice attorney comes sashaying into our BK court, they start salivating.

The federal rules about filing and notice and service can be found here, but ALSO check your local rules.
[url]http://www.law.cornell.edu/rules/frbp/[/url]

And get help. A knowledgeable BK lawyer can probably get the Trustee in line on this without a fistfight, unless your trustee is a really aggressive jerk, and if he is, I just wanna know, where was he when I needed him??

[2farindebt]

Ana...and Lady, our original lawyer (#1) recommended someone for us to call to help us with our bankruptcy since he no longer could (we got a letter from him today stating "Your bankruptcy has become beyond the scope of my original representation of you and the original fees paid." If you read between the lines, it says "I don't know what I'm doing and I messed up"). We called lawyer #2. He said it would cost us $1500 but he thought #3 would be less expensive. We called #3 and he said it would cost $1500 PLUS extra for any briefs to be filed or court appearances. I then called my social security lawyer and asked her if there was any way to find out if my case was being denied because I wasn't going to pay someone $1500 if the ALJ in my social security hearing has already decided to deny me the benefits and just hasn't had time to notify me (my hearing with him was 1/04/05). She had no answer but recommended lawyer #4. Called lawyer #4 - he was sympathetic, said he'd charge much less but couldn't help me. Sent me to #5. Called lawyer #5 and he said he didn't really fight that kind of problem with his BK cases and recommended lawyer #6. Called #6 and BINGO!! This guy was nice right off the bat, listened to me and then pulled my account up on PACER and started telling me things that should have been done differently. He said for me to stop worrying, everything will be okay, he's working on a fee of $150 an hour and said it shouldn't even cost $500 because the trustee doesn't have a leg to stand on -- trustee objected way too late, my exemption is legit and we did distribute the amended papers properly (even though lawyer#1 should have filed them BEFORE we were discharged because by filing them after the discharge, this would tick off the trustee). So, I'm trying to calm down and relax until our appointment with lawyer #6 on Monday. My head is pounding and I've been clenching my teeth, but I do feel like we will finally have some competent representation, FINALLY! I'll keep you posted.

[Ladynred]

Well, you followed a long chain, but sounds like you got someone who knows what he's doing. Good luck !!