- As mentioned above, they are not allowed to give legal advice (and are required to tell you that they are not attorneys).
- They cannot provide advice as to what bankruptcy exemptions a debtor should claim or what property a debtor may exempt. Not claiming the proper applicable exemption can place an asset at risk of seizure or liquidation by a bankruptcy trustee. Just as damaging can be filing for bankruptcy and not realizing that there is no available exemption or enough of an exemption to protect an asset in a bankruptcy case. An example of this can be filing a bankruptcy petition with too much equity in a house or money in a bank account or stock in a brokerage account that there isn’t an exemption for or a sufficient exemption.
- They cannot advise a debtor regarding the applicability of bankruptcy means test and how it is computed. The means test is a budget test required for most bankruptcy cases when the debtor’s household income is above the median income for their household size. Properly computing the test is more than just inputting figures into a software application. One has to know what income to input and what deductions can properly be used. Filing for chapter 7 bankruptcy with an inaccurate means test result can result in dismissal of the case or force a debtor to convert to chapter 13 bankruptcy, which has a required payment plan to pay back a certain amount of debt to creditors.
- They cannot advise as to whether a debtor should file for Chapter 7 bankruptcy or Chapter 13 bankruptcy and the possible benefits and negative consequences of each one. Filing for the right bankruptcy chapter for a debtor’s particular circumstances is extremely important and filing for the wrong chapter can have serious negatives consequences. In addition, for those filing for chapter 7 bankruptcy, pursuant to 11 U.S.C. § 707(a), once a chapter 7 bankruptcy petition is filed it cannot be withdrawn without court approval and only “for cause” in very narrow circumstances. As such, if a debtor makes a mistake and files for chapter 7 bankruptcy with too much equity in a home, bank balances that are too high or has a personal injury claim that is above the exemption limits, they cannot simply withdraw their petition as if nothing ever happened.
- A bankruptcy petition preparer cannot advise or prepare a debtor for the mandatory 341 meeting of creditors. At the meeting, a debtor will be questioned under oath by the assigned bankruptcy trustee. That trustee will typically verify the debtor’s identity, and ask them questions regarding assets set forth in their petition and possible assets not identified in their petition. They will also ask questions regarding claims they may have such as a personal injury claim or the right to receive money, any payments to creditors (including family and friends) that may be improper preferences and any previous transfer of assets. Creditors, it should be noted, do not typically appear at this hearing, but they may. Additionally, the United States Trustee has the right to ask questions of any debtor. The U.S. Trustees are a component of the U.S. Department of Justice and are distinct from the bankruptcy trustee assigned to your case. They monitor the conduct of parties in a bankruptcy, oversee administrative function in the Bankruptcy Court, and act to ensure compliance with applicable laws and procedures.
- A bankruptcy petition preparer who advises a debtor about how to complete the bankruptcy petition and schedules may be engaging in the unauthorized practice of law. If this advice is incorrect or if the debtor’s own interpretation of the bankruptcy laws is incorrect, they may lose assets, certain debts may not be discharged, and they may have to pay money or turn over assets to the Trustee for distribution to creditors. The bankruptcy petition preparer cannot represent a debtor in a bankruptcy case, and a debtor would face the consequences of any errors or omissions on their own.
Foreclosure Caselaw Update: N.Y. Court of Appeals Reverses Kessler Decision
Introduction On February 14, 2023, the New York Court of Appeals overturned the Appellate Division, Second Department’s decision in Bank of America v. Kessler, which