Sanctions? Is this a game?

[anabanana]

What is the name of your state? FL


This just gets crazier all the time. Now this loser's attorney is asking for sanctions against me because the Debtor and I went to arbitration for the child support. Nevermind that the Debtor willingly participated, nevermind that the Debtor's attorney prepared the Summary of Facts for the Debtor to provide to the arbitrator, nevermind that they actually proposed in their summary some of the same points the arbitrator ultimately awarded.

And nevermind that the arbitrator asked the judge in the state court if there was any reason to not proceed because of this BK, and that judge told him to go ahead. This sadistic Beelzebub-at-law is asking for sanctions against ME. It's like some kind of sick sport for this guy. Jeeezus, what am I supposed to do? Defy the state court? I was ORDERED to go to arbitration. He wants ME to vacate the award? It is not within my purview to vacate the award!! What does he expect me to do?

Are there any grounds under which I can ask for sanctions against HIM? Malicious prosecution or something? This is just savagery. I am sick to my stomach, scared to death, ground to the bone. There has got to be some recourse against this gratuitous brutality. It's just sick.

 

[AttorneyOney]

The attorney is just doing his job, which is to zealously advocate for his client. Just oppose the request for sanctions and tell your story calmly. The key facts are (a) the arbitration involved child support, concerning which bankruptcy courts routinely defer to the competent state authorities, (b) the Debtor didn't raise any objection, thereby arguably "estopping" him (to use the legal term) from complaining now that you violated the stay, and (c) you were acting as directed by a court. The calmer and more organized you are, the more likely the judge is to scold the debtor for bothering him or her with this issue.

 

[anabanana]

Thank you, Walter. You offer such civilized input.

I have to disagree about the zealous defense of the Debtor's interests, though, because he's not doing the Debtor any favors either, since they both end up looking like bullies. An attorney has some kind of obligation to help move the client toward an ethical resolution. This guy is having great sport of kicking the 98-pound (pro se) weakling around the beach, and sucking up more and more of the money while he's at it, prejudicing both the Debtor's children and all the creditors.

I gather that he will get all his fees paid out of the BK estate (at full pop, not at .20 on the dollar), so he's not concerned in the least about running up egregious bills while everyone else gets hung out to dry. What a roach.

In some cases I've read, the Court has put a limit on what the attorney was paid, but I didn't notice any specific reference to statute. Is there any way of knowing how long he's going to keep this crap up? The debtor was hiding a bunch of money that the Trustee and I exposed. Suddenly, his representation of the Debtor got wayyyy more zealous, so now I'm sure this creep feels like he can have all kinds of fun and screw everyone else, as long as he comes out ahead. Yuck. Are there rules about how much he can get?

 

[anabanana]

Just bumping Part II of the question...

Since the Debtor's attorney found out that there's a bunch of money squirreled away, he's become much more enthusiastic than he was when he thought he was just churning through another $1,200 flat fee for this Chap. 13. He is a brute, and no fewer than 7 other attorneys have told me he is a hideous cretin, so he likely has no compunctions about milking this client for every penny he can get. I don't think he gives two ethical hoots about a reasonable, ethical, equitable or expeditious outcome. Since he's getting all his fee covered by the estate, are there rules about how much he can get?

 

[AttorneyOney]

The court has to approve fee payments to lawyers, accountants, and other professionals hired by the estate. There aren't many bankruptcy judges in a given district, and they have had long experience in private practice before becoming judges. You should be able to count on the judge to spot needless churning and to at least not reward it.

 

[anabanana]

Well, THAT's reassuring at least. The judge on this case is famous for his short temper, but I've found him to be outstandingly just, even if he does yell at people a lot.

Walter, perhaps you can tell me this, as no one else seems able to... Section 362(b) says the Automatic Stay "DOES NOT OPERATE AS A STAY... for the establishment or enforcement ... of ... support..." It's pretty plain language. And apparently, in some districts, you don't have to ask for relief from the stay for a support matter. But in some you do. SO WHERE IS THAT LAID OUT?? I can't find it in the local rules, the FRBP, or anywhere!! I cannot understand where it establishes that I have to ask for relief from the stay in a case where it "does not operate as a stay." Where can I find that??

Thanks so much.

 

[AttorneyOney]

Yes, it says that, and many attorneys will just go ahead and file stuff in whatever state court is responsible for family law matters. Cautious attorneys will get permission from the court first. I recently heard one of our local bankruptcy judges talk about this issue, and his bottom line was that he would nearly always defer to the Probate and Family Court [which is where divorce issues are considered] for adjudication of these issues. But it can't hurt to ask first.

There may, however, be case law in your district that explicitly says what needs to be done when there's a dispute over child support. The case law may not be in West's Bankruptcy Reporter, so it may be hard to find. Bankruptcy practitioners in your area should know all about it, though, from continuing education and other legal-update programs.