What You Need to Know About Bankruptcy Attorneys Before You Hire One

The function of good bankruptcy attorneys is to guide potential bankruptcy applicants through bankruptcy procedures and to act on their behalf in court. With the new amendments, good bankruptcy attorneys will also inform their clients about why certain legal loopholes no longer exist.

It is best to seek services of a bankruptcy lawyer if you are facing any difficulty in declaring bankruptcy and starting over again. Bankruptcy proceedings have to be initiated and proceeded in adherence to all relating legal laws and requirements. A bankruptcy attorney is best qualified to explain the finer details of bankruptcy issues to make concepts and procedures clear and simple. Such attorneys help to relieve you of the pressure and anxiety that arises when filing for bankruptcy proceedings. They help you to successfully complete a discharge of debts under bankruptcy code helping you with advice, support and also assisting you with all related legal formalities and paperwork. An experienced bankruptcy lawyer can relieve you of your debt problems and help you find a feasible debt solution without jeopardizing your home, vehicle, wages, retirement account and other valuable assets.

You may seek services of a bankruptcy attorney if you are facing any of the following problems:

· Tax problems

· Foreclosures

· Auto and truck repossessions

· Creditor harassment

· Lawsuits

· IRS wages garnishment

· Tax levies and seizure

It is common procedure to seek referrals from family and friends when looking to find a reliable attorney. However, this procedure may not be entirely advisable when looking for a bankruptcy attorney unless your friend has gone through a bankruptcy. Instead, ask for suggestions and reference from legal professionals whom you already know. Check if your attorney is certified by the American Bankruptcy Institute and also meets the required additional standards. Make it a point to personally check out your attorney’s law firm’s offices. You may not be comfortable dealing with an attorney having a completely disorganized office. Also, it is essential to look for an attorney with whom you are comfortable discussing your personal and financial problems.

Every state and city has a Bar Association, and the Association of Consumer Bankruptcy Attorneys is another good source. While narrowing down your final choice, ensure that the attorney is certified by the American Bankruptcy Institute, so that a reasonable degree of accountability is established. Finally, find out how many actual bankruptcy cases the attorney has handled in the given year, and how many of them yielded satisfactorily results from the client’s point of view.

Here are few factors to consider while selecting a bankruptcy lawyer:

· Check out and Compare profiles and credentials

· How experienced is the particular bankruptcy attorney

· How many bankruptcy cases the attorney has handled

· What is the nature of bankruptcy cases that he commonly handles, are they personal, consumer, or business filings

· Is the attorney willing to offer personalized services apprising you of the various procedures that are involved

· How comfortable are you with the attorney to discuss your problems

· How much access you have to your attorney during bankruptcy filing

· How much fee does the attorney charge, etc.

Avoiding Common Pitfalls When Hiring a Lawyer

Hiring a lawyer is never a simple matter. Just ask some people you know about their experiences and you will likely hear a few negative comments about certain lawyers and law firms they have previously worked with. Unsatisfactory performance and expensive charges are two of the most common complaints among those who have had a bad time in the past.

Of course, there are a lot of ways to help you prevent these usual problems. One of the best things you can do is to check a lawyer’s expertise. A lot of clients fail to do this and this can lead to undesirable consequences. While most lawyers can function even outside of their fields of specialty, it is always better to hire an attorney based on your specific needs. For example, a family lawyer is much more updated with laws and requirements pertaining to divorce and similar topics. A commercial lawyer, on the other hand, is usually tapped by big and small companies whenever they need legal assistance.

Put in proper perspective, it simply means you have to exert special effort finding someone who has sufficient knowledge and expertise. While it is always tempting to hire someone who is sympathetic and supportive, these qualities should never replace the lawyer’s effectiveness in the courtroom. It is your duty and right to take a look at the person’s track record before making up your mind.

Another thing you shouldn’t overlook is to check all the fees upfront. Majority of clients who eventually complain that they’ve been charged too expensively by their attorneys are those who skip this crucial step in the first place. Before deciding to hire a lawyer, ask a lot of questions about the legal fees and be clear with him so you can avoid being surprised later on in the process.

Also, do ask about the attorney’s availability. It is not uncommon for most lawyers to have busy schedules and that’s why it’s important that you discuss the time needed to help you with the case. Are there any courtroom appointments in the weeks ahead? Do you need assistance with some paperwork? The lawyer should be able to lend a hand every step of the way for you to have higher chances of winning the legal battle.

To sum it all up, the biggest mistake you can make is to do no researches and simply hire the first lawyer that you find. Wise clients know how crucial it is to know their attorneys well before proceeding further. Doing your homework is a prerequisite so make it a point to ask for referrals, visit relevant websites, and meet lawyers in person to arrive at a right decision.

Finding The Right Bankruptcy Attorney Might Be Harder Than You Think

When considering mainstream America most people don’t know how to find a bankruptcy attorney, let alone a good one. Most people never want to think about ever having to need one. The subject of filing bankruptcy is not something that people throw across the dinner table. When it comes to financial matters and especially bankruptcy people generally are too embarrassed to let people know what they’re going through. This is one reason why it’s hard to get a referral from a friend or family member, for a bankruptcy attorney, when a person is considering filing. It’s almost as bad as referring a friend to a proctologist to have a colonoscopy done. It’s just one of those subjects that no one wants to talk about. Considering this, where is the best place to find a bankruptcy attorney when an individual is faced with a financial collapse and no way out but to file bankruptcy?

Finding a bankruptcy attorney that will fit your personal situation will take a little bit of work and luck for the consumer. A good place to start looking would be on the Internet. Search for terms like, bankruptcy, bankruptcy attorney, filing bankruptcy and so on. This will give you a good start by hooking you up with a few consumer bankruptcy attorney websites. Many of these sites will try to set you up with an attorney in your area to fit your particular needs.

Look for a bankruptcy attorney which has been practicing in consumer bankruptcy law for a minimum of five years. Because of the economic downturn here in the US, many opportunist attorneys have converted their practice to include bankruptcy law. These attorneys blow in with the wind from the last legal trend to jump on the bankruptcy bandwagon for financial reasons. Many of these attorneys don’t have the experience necessary to give their clients the expertise to fully protect them using the law to its full potential. When a family is in financial distress and needing to file bankruptcy, they don’t need the added stress of an inexperienced attorney representing them.

Before filing bankruptcy, make sure you’ve checked out all your options. When all you’ve got is a hammer, everything looks like a nail. This is also true with bankruptcy. Not everyone in financial trouble is necessarily a candidate for bankruptcy. A good attorney will be honest with their client and not put them in a bankruptcy filing if it’s not necessary. That’s why the term “ambulance chaser” was coined. It’s sad to say, but there are attorneys that are more interested in financial gain than in protecting their clients. Sit down and interview a few different attorneys along with meeting their staff. Most bankruptcy attorneys will give a free consultation to give the clients a chance to ask any questions they might have about their situation. This will give you a chance to get a feel for the dynamic of the relationship you might be starting. You need to find someone you like, because you’ll be working with them for 4 to 6 months when filing Chapter 7 bankruptcy and 3 to 5 years if we’re talking about a Chapter 13.

Making the final decision to hire someone, before filing bankruptcy, should be done after you do your diligence. Snoop around online with organizations like the Better Business Bureau to see if there is any negative information on the bankruptcy attorney you’re considering to hire. This process will take some time and effort on the debtor’s part, but when it comes to protecting your final future, finding the right professional might make the difference between success and failure.

Patience Is a Virtue When Dealing With Your Bankruptcy Attorney

When a person is filing bankruptcy, their whole world seems like it’s going upside down. The only focus they have is on getting that bankruptcy discharge and getting the creditors off their back. During these stressful times many people continuously call their bankruptcy attorney with problems or to ask stupid questions. While they don’t believe the questions are stupid, in the big scheme of things they are wasting the time of the attorney. Overbearing clients can cause a rift between the bankruptcy attorney, the law office staff and the client.

The attorney knows the timeline that needs to be to get a successful bankruptcy discharge and usually is on top of things. It is best to let the attorney do their job and not bother them unless you are being harassed by creditors. If the bankruptcy has already filed and creditors are continuing to call, the individuals should call the bankruptcy attorney and make them aware of the automatic stay violations. Most of the time, a staff member from the law office will call the creditor and make them aware of the bankruptcy filing. This usually will stop them from calling.

Because of the relationship and the time frame it takes to file bankruptcy, it’s important that people need to take the time to look for a bankruptcy attorney that they get along well with. The entire process of filing Chapter 7 bankruptcy takes about 4 to 6 months of someone’s life. Because someone’s life is turned upside down, they are very hypersensitive during this time frame. If the person filing for bankruptcy finds an attorney they trust, they will be able to chill out and let the attorney do their job. If there is no trust or relationship there, the individual will try and micromanage the law office making everybody mad. This is not the way to have a successful bankruptcy filing. When someone becomes a problem, typically, the bankruptcy attorney will stop calling the individual back and the fight will be on. The old statement, patience is a virtue should be taken to heart because this process doesn’t happen overnight.

My personal belief is hiring a bankruptcy attorney should be looked at the same as putting a sports team together. If all the members don’t work together successfully, the outcome will be shown in the results. There will be important items that might slip through the cracks because the dynamic of the relationship has gone south. In today’s complicated legal system it is much better to rely on the expertise of a bankruptcy attorney then trying to go it alone. Try to keep in mind at all times the reason of why the attorney was hired in the first place.

Commercial Law – Alleged Breach of Contract – Building Contract – Performance Bonds

The case of Spiersbridge Property Developments Ltd vMuir Construction Ltd [2008] involved a determination relating to an action alleging breach of a building contract. A bank had paid out an amount demanded by the pursuer under a performance bond and it had to be decided, if the demand on the bond exceeded the sum ultimately due, whether the pursuer was obliged to account for the excess to the bank or to the defender.

The pursuer in this case was a property development company and the defender was a construction company. The parties entered into a building contract in June 2005, in accordance with this contract, the defender was to design and construct a development consisting of warehouses and office space.

This case was centred on the pursuer claiming for alleged delays in completing the works whilst the defender counterclaimed, requesting for an extension of time in which it could complete its obligations.

According to clause 2.10.2 of Appendix 1 of the building contract, the defender, as the contractor, made an undertaking to execute and deliver to the pursuer, as the employer, no later than 14 days following a written request from the pursuer to do so:

“…A performance bond in an amount not less than 10% of the Contract Sum in terms the same as the draft performance bond set out in Part Five of this Schedule”.

The Bank of Scotland subsequently issued a performance bond. The performance bond was in the form of a letter which was addressed to the pursuers and included substantially the same terms as the draft bond referred to in clause 2.10.2.

Then, in November 2006, the pursuer made a demand requiring the bank to pay £503,193.75 under the bond, which the bank duly paid to the pursuer. The defender stated that it was obliged, under a counter-indemnity it had granted to the bank, to pay that same amount to the bank and that it had duly done so.

Furthermore, the defender stated in its counterclaim that the grounds on which the pursuer called on the bond were erroneous. The defender argued that the grounds were erroneous due to the fact that it was not in breach of contract as alleged by the pursuer. It asserted that the pursuer was obliged to account to it for the sums received under the bond. The basis for that assertion being that the following term was to be implied into the building contract:

“…In the event that… the pursuer should make a call on the bond it would account to the defender for the proceeds of the bond, retaining only the amount equivalent to any loss suffered by the pursuer as a result of the defender’s breach of contract, if any”.

It was argued that such a term required to be implied as a matter of business efficacy. This meant that the dispute as to whether the defender was in breach of the building contract, as alleged by the pursuer, was yet to be settled.

Despite the fact that a ‘proof before answer’ had been appointed, the parties also disagreed on whether the pursuer was obliged to account to the defender for that excess, assuming it was found to be entitled to a sum less than it was paid under the bond.

Accordingly, the pursuer argued that its duty to account was owed to the bank and not to the defender. The pursuer’s principal concern was that if it made payment of that excess to the defender, it risked being sued for an equal sum by the bank.

The parties came to the mutual decision to have the issue decided in a debate before the proof. The question for decision during the debate was:

“Where a demand had been made on a performance bond in an amount which was ultimately found to exceed the sum due to the party making the demand, was that party obliged to account for that excess:

(a) To the bank; or

(b) To his opposite contracting party?”

Counsel for the pursuer said that there were three contracts which needed to be considered:

§ The bond contract, namely the contract on the performance bond between the pursuer and the bank;

§ The building contract, which was the contract between the pursuer and the defender; and

§ The banking contract between the defender and the bank pursuant to which the bank agreed to issue the performance bond.

It had to be decided to whom the pursuer should account for the excess and the route to achieve this. It was submitted that the most sensible route was by implication of a term into the bond contract. The term would state that the pursuer would repay the excess to the bank. This would be matched by a corresponding term to be implied into the banking contract under which, if it had already been paid by the defender, the bank would repay the said amount to the defender.

This however raised some potential difficulties. If the term was implied into the building contract where the defender became insolvent, and the pursuer was required to account for the excess to the defender, the payment by the pursuer would go into the pot for the general body of creditors of the defender. This would mean that unless it had already been paid by the defender, the bank would lose out.

Counsel for the defender submitted that the term should be implied in the building contract. If it were the case that it was the bank that could sue on the bond for the excess, the bank would be undertaking the burden of seeking to prove in litigation with the pursuer that the defender was not in breach of contract. Alternatively, that the damage suffered by the pursuer was less than the amount called under the bond.

It was argued that that was not a task a reasonable banker would be particularly willing to undertake, not just because of the difficulty of running such a case, but also due to the fact that it would be expensive.

It would be much better for the bank to be able to rely upon its counter-indemnity from the defender at the time that the bond was called. If the bank had the right of action for recovery of the excess, counsel for the pursuer argued that those difficulties could be overcome by an assignment of the right of action by the bank to the defender. However, this would not work as the terms of the bond prohibited the bank from assigning its rights without the pursuer’s consent. Furthermore, if the bank had been paid by the defender pursuant to its counter-indemnity, it would not have suffered any loss and would have no claim to assign.

After much deliberation, the court held that where a demand was made on a performance bond in an amount which was ultimately found to exceed the sum due to the party making the demand, that party was held to be obliged to account for that excess to the opposite contracting party. In the circumstances of this case, the parties had agreed that the obligation on the pursuer to account for any excess must rest upon an implied term in one of the contracts to which it was a party.

This meant that the question then became one of establishing which implication best gave the intended business efficacy to the transaction.

The court was of the opinion that the natural implication was an implication of the type for which the defender argued, namely an implication of a term into the building contract as follows:

‘…In the event that… the pursuer should make a call on the bond it would account to the defender for the proceeds of the bond, retaining only the amount equivalent to any loss suffered by the pursuer as a result of the defender’s breach of contract, if any’.

It was held that a term implied into the building contract had none of the disadvantages of involving the bank in the merits of the case. Furthermore, it also allowed for establishing what loss, if any, the pursuer had suffered as a result of the defender’s alleged breach of the building contract. This could be determined in litigation or arbitration between the parties to that contract.

The court further held that it was unrealistic to think that the bank would not have agreed with the defender a counter-indemnity in terms of which the defender would in turn indemnify the bank in the like amount upon a call being made upon the bond.

In the event that the call on the bond was excessive, the defender would be out of pocket, not the bank. According to the court, it seemed quite natural that it should be the defender to whom the pursuer had to account for that excess. This did however leave one potential problem. That problem being that if the defender became insolvent after the bond was established by the bank, but before the bank could claim against the defender on the counter-indemnity, then the bank would stand to lose out if it had not taken security.

This potential problem was held to merely be a commercial risk which the bank would decide whether or not to take depending upon its assessment of the defender’s creditworthiness. As such, the bank could overcome this problem by refusing to issue the bond, or require some security before agreeing to issue it.

© RT COOPERS, 2008. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.