A recent comprehensive report on self-represented litigants in the Central District of California Bankruptcy Courtwas conducted titled “Access to Justice in Crisis: Self-Represented Parties and the Court.”
The report summarizes what the Court knows about its self-represented litigants, and it identifies what happens to their cases in comparison to attorney-represented consumer cases.
In the year of 2011 there were 134,501 bankruptcies filed in the Central District of California Bankruptcy Court. This is the most in the nation. 31% of the bankruptcies filed in the Central District were filed by self-represented parties. Again the most in the nation.
In the report, the critical question addressed asks, “Does it actually matter if a litigant has an attorney?” The response is as follows:
“Anecdotally and experientially, those working within the bankruptcy system know how vital proper legal representation is. Because we see so many parties harmed by the lack of representation, the bankruptcy bar and the Court have spent years developing pro bono programs, developing attorney referral resources, and trying to find legal advice for as many people as possible. After years of such efforts, with an increasing pro se rate, we must reluctantly conclude that personalized legal representation for each litigant is an unrealistic goal.”
Common problems in self-represented debtors’ cases include: the failure to file required documents, resulting in dismissal; filing a chapter which may not be correct for the debtor’s circumstances; choosing incorrect property exemptions; unnecessarily filing bankruptcy in the first place; not filing the required credit counseling or financial management certificate; being unable to answer or adequately defend an action seeking to deny discharge; and not understanding the significance of certain motions or adversary actions. Self-represented creditors are often harmed by not filing a proof of claim in time, by missing the deadline to file a dischargeability action, and having difficulty filing an objection to a claim.
Consider the following statement provided within the article, “A chapter 7 bankruptcy—generally, the easiest type of bankruptcy available—should result in a discharge of debts. Using this basic measure of success, a self-represented debtor in chapter 7 will obtain a discharge of debt only approximately 61 percent of the time in this district, compared to the much more favorable 95 percent discharge rate of attorney-represented chapter 7 cases.”
Under 11 U.S.C. §110, non-attorneys are permitted to type bankruptcy forms for debtors according to certain rules detailed in that section. These individuals are known as bankruptcy petition preparers (BPPs). Debtors believe themselves to be “represented” by the BPP regardless of what warnings are posted, disclosures signed, or lack of legal degree obtained.
Though some BPPs in the district may get good results for debtors, many practice outright fraud. While this has long been the case in the district, the prevalence of “foreclosure assistance” and “loan modification” scams has increased with the foreclosure crisis in the last few years. The incidence of BPPs either ignoring the requirements of §110 or committing fraud has increased as well. Many of the BPPs are charging debtors anywhere from $400 to $1,500. when only legally allowed to charge up to $200.
Also, a large number of pro se debtors have limited education and difficulty with basic reading and comprehension in any language; some cannot comprehend even the most basic information requested on bankruptcy forms.
In sum, to avoid fraud, scam, or misrepresentation, the Central District of California Bankruptcy Court advocates for the use of legitimate court appointed legal services/aid, or better yet, one-on-one attention to your specific case that can only come from a trained attorney, both of which have proven to increase the success rate of your bankruptcy filing.
“Access to Justice in Crisis: Self-Represented Parties and the Court.” United States Bankruptcy Court – Central District of California. United States Bankruptcy Court, 17 Apr.2012.Web.18Apr.2012