June 3

Do You Need An Attorney To File Bankruptcy?

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Please note: this article is about individual bankruptcy and not business bankruptcy.

Well, the short answer to this question is No. You don’t necessarily need an attorney or lawyer to file for individual bankruptcy. You can file it on your own, or “pro se” which is the term for representing the case.

But whether you should file your bankruptcy yourself without a lawyer or attorney, well that’s another question entirely. 

But it’s the next follow-on question, and is one that we will aim to answer here for you today. And we will answer more questions along the way. We’re going to concentrate on filing for Chapter 7 and Chapter 13 bankruptcies.

Do you need an attorney to file bankruptcy

What area of law does bankruptcy fall under?

Bankruptcy cases fall almost exclusively under federal law and not state law. However, states may pass laws governing issues that federal law doesn't address.

Bankruptcy cases must then be filed in a federal court, and usually this is the U.S. Bankruptcy Court.

Bankruptcy cases are not considered criminal law cases or civil law cases, and they fall under their own category. But we can confirm that it comes under private law rather than public law.

When You Might Not Need a Bankruptcy Attorney

The easiest case  to file a bankruptcy for would be a straightforward Chapter 7.

Here are some signs that you may not a bankruptcy attorney to make your Chapter 7 claim:

  • Your household income is below that of the state’s median level of income
  • You have very little property to your name or none at all
  • There have been no recent property or money transfers to your creditors
  • Your creditors are unlikely to dispute the nature or size of a debt

When You Will Need a Bankruptcy Attorney

However, even Chapter 7 bankruptcy cases aren’t always plain sailing and straightforward.

Here are the signs that it would be best to get an attorney for your Chapter 7 case:

  • You are disqualified from filing a Chapter 7 because you have a significant regular income
  • You own a business
  • You have a lot of assets that might be at risk
  • You have debts that even a bankruptcy can’t discharge
  • You have creditors that might challenge you
  • You have recently transferred assets out of your name

If just one of these signs pertains to your particular situation, then we would strongly recommend that you get yourself an attorney to represent your case. As any of these issues instantly makes for a more complicated case.

You should also enlist an attorney if you intend to file a Chapter 13 bankruptcy.

A Chapter 13 bankruptcy is one where you can catch up on missed mortgage or loan payments, reduce the principal balance or interest rate of a car loan, or get rid of unsecured junior liens, such as second mortgages.

A Chapter 13 bankruptcy is significantly more complicated than a Chapter 7, and not only requires more work, but is particularly challenging to do without all the legal knowledge and the software used by bankruptcy lawyers.

How hard is it to file bankruptcy without a lawyer?

How hard you’ll find it to file a bankruptcy without a lawyer depends of course on the level of complexity in your case. Much of it is straightforward form filling, but you will also have to do a lot of your own research.

Here’s a brief list of tasks you will have to undertake:

  • Accurately fill out several bankruptcy forms and schedules
  • Learn all about how bankruptcy laws work
  • Research any exemptions that your particular state may have
  • Follow all of the rules and procedures necessary to complete the process

Each of these tasks will take real time and precision. It should not be rushed, and should take all important matters into account.

To be perfectly honest with you, even filing a straightforward Chapter 7 bankruptcy can be both very daunting and considerably time consuming.

And more often than not you would be better off using the services of an attorney if you can. Especially if you feel like you would lack the confidence to represent yourself.

Should you file your bankruptcy yourself without an attorney?

So, as we have covered, it certainly is possible to file for bankruptcy yourself without an attorney if you so wish. But it’s far from ideal.

Even if you want to file for a straightforward Chapter 7 bankruptcy, it’s a lot more work than just form filling.

You will have to carry out a lot of research into bankruptcy laws, and learn all of your state’s exemptions to check whether any apply to your particular set of circumstances.

And in some cases, like a Chapter 13 bankruptcy case, you would be very foolish not to employ an attorney if at all possible.

So to sum up, we would argue that in most instances you are far better off hiring an attorney to represent you and file your bankruptcy for you rather than going alone.

And if you do decide to get an attorney, be sure to get one that is sufficiently experienced in bankruptcy if you can. Rather than a general practice attorney.

You can also find lists of bankruptcy lawyers online, such as on  www.nacba.org, a site that provides contact information for members of the National Association of Consumer Bankruptcy Attorneys.

What if I have no money for an attorney?

We certainly get why you would feel like you couldn’t go ahead and hire an attorney. By the time most people are ready to file for bankruptcy they feel like they have no money to pay for a lawyer…

But even then there are options available to you. You could for example get help from a local free clinic or legal aid society, you could look for a pro bono attorney who will accept your case at a reduced rate, or maybe even for free, or if you file a Chapter 13, you could play most of the attorneys’ fees by way of a repayment plan.