Representing yourself in front of a Bankruptcy Judge

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Once upon a time, Abraham Lincoln, who was a talented attorney, is credited as saying “he who represents himself has a fool for a client.”  When you represent yourself, we call it being “pro se”, which is Latin for “in one’s own behalf”, and in fact, our American legal system has a very long tradition of allowing people to represent themselves in court.

When you do not have a lot of money, representing yourself might seem like your only option.  Any assistance you can get from a trained attorney is generally better than representing yourself.  You should call your local Bar Association.  Every State has a bar association, and oftentimes, counties have their own smaller Bar Association.  There is a Federal Bar association, and there are even small bar associations for various interest groups, such as ethnic bar associations.  All of these bar associations are populated with attorneys, and some of them are willing to either consult with you, or (in some limited cases) represent you for free.  So ALWAYS explore those options first.

But when all else fails, and you do not have the money for an attorney, representing yourself pro se is an option.

In Bankruptcy cases, there are not a lot of situations that would cause you to have to go in front of a Judge.  Everybody has at least on meeting with an assigned attorney representing the Trustee, but that meeting is usually pretty straightforward.

On occasion, however, you will need to go in front of a Bankruptcy Judge.  Here are the most common reasons why a pro se debtor in Bankruptcy might have to go in front of a Bankruptcy Judge:

1)  Obtaining approval to reaffirm on your car loan.

2)  A creditor has filed a motion for relief from stay in order to continue collection activity such as a foreclosure.

3)  The Chapter 13 Trustee has filed a motion to dismiss your case.

4)  You have filed a second Bankruptcy after your last Bankruptcy was dismissed and you are asking for the Judge to keep the automatic stay on collection in your new case.

5)  A Trustee is asking the court to order you to turn over some asset that belongs to you.

Before you go in front of a Bankruptcy Judge without an advocate on your side, you need to keep a few things in mind.

First, the Bankruptcy Judge usually has a full docket of cases, and they do not have the time to listen to your entire life story.  If that sounds dismissive, I do not mean it to be.  I want you to prevail, but we have to deal with certain realities.  This is Bankruptcy Court.  It is highly unlikely that you are going to say something that a Bankruptcy Judge has not heard before.  As bad as your personal circumstances may be, that will generally not be enough to sway a Bankruptcy Judge.

We have something called “due process”.  Most people think that “due process” means fairness.  It does not.  It just means that you have to have the same opportunity as the other side to present a meaningful legal argument.  “This isn’t fair” is a terrible legal argument.  Remember that “due process” does mean that you have to have the same opportunity as the other side to present your case, so if they did not effectively notify you of the hearing, or if you did not receive all the written materials that the other side presented, that is a great due process argument, because you were not given adequate preparation for the motion.

But, if you come to court and the substance of your argument is “this isn’t fair”, you are going to get a sympathetic look by a Judge, and then he or she is going to rule against you.

So, it is very important to be brief.  You need to confine your argument to the important legal points.  If you want to start out with “Your Honor, I am a (say your personal circumstance here)” you can do that, but make sure that you confine it to one line and move onto the substance of your argument.

You need to avoid easy mistakes that cause you to lose before you even get to court.  The biggest mistake is missing a deadline, or filing paperwork late.  If you get material from an attorney, read it carefully.  In nearly every case, there are deadlines written in obvious places on the paperwork.  Do not wait until the last minute to respond.  You might have a decent argument, but if your paperwork is filed late, the Judge may not even look at it.

Another mistake that pro se litigants make is to ask the opposing side for advice.  Most attorneys will ethically let a pro se person know basic information such as the date and time of the hearing, or the location of the courthouse, but they will rarely give you any helpful information for presenting your case.  These people are not your friends…they are trying to beat you.  Don’t listen to them.

Save everything.  I am always amazed at how many pro se litigants throw away the paperwork that is sent to them.  Keep all of it.  For example, in most cases an attorney must file a “certificate of service” or “proof of service” with the court telling the court when they provided notice to you.  If notice is done by mail in your jurisdiction, keep the envelope.  There is a post-mark on the envelope.  Compare it to the proof of service.  If the days are wildly off, then the attorney lied about when they sent off their materials.  This is a great due process argument to make to the Judge, because by statute you are required to have a certain amount of time to respond to the motion and if they do not afford you that amount of time, they must lose on procedural grounds alone.  This is so powerful that many attorneys (like me) have gone to professional mailing services just so that we don’t get blamed for any mistakes at the post office and lose on procedural grounds.  Don’t throw away the exhibits either.  Oftentimes, the exhibits do not actually match up to what the attorney argues for in their paperwork.  You can use that discrepancy in court…so the bottom line is read everything and keep everything.

Finally, the biggest mistake that I see that pro se litigants make in Bankruptcy court is bringing up irrelevant facts to the Judge.  In a Chapter 13 case the Judge is interested in how you are going to fulfill the terms of your Chapter 13 plan payment.  Everything has to be centered around that.  Even if you fell behind in your payments, the Judge is not interested in why you fell behind in your payments as much as he/she is interested in how you are going to get them caught up.  In a Chapter 7 case, if you run into problems with the Trustee it is because they believe that you lied about something material in your case, or you concealed an asset.  Stick to what is relevant.  Don’t bring up facts or circumstances that have nothing to do with why you are in court.  If you do, you will lose the Judge’s attention, and you will lose your case.

I have seen very successful pro se Bankruptcy litigants, but the fact is that most end up regretting the decision.  The one quality that all the successful pro se debtors had was that they were prepared and they were well researched.  If you can’t take the time to do that, seek out help.

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