Bankruptcy Attorney Legal Malpractice

[doomed]

My question involves malpractice by a lawyer in the state of: South Dakota

We filed bankruptcy and had our 341 yesterday. Our lawyer, when filling out our petition, couldn't change the state of residence from SD to the state we were going to use, PA. He was supposed to correct this before the 341. At the 341 he told the trustee he wasn't able to fix it. Trustee said user error. Anyway, no matter, because the state he told us we could file in, PA, was incorrect. We were going to use federal exemptions. The trustee informed us we would have to use ME, the state we lived before (we've moved a lot). This brings us from a no asset chapter 7 to losing our savings and car, and possibly being pushed to a Ch 13. Our attorney told us there would be no surprises at the 341. This was a HUGE one. He tried to tell us briefly after the 341 that the trustee was wrong, that he's never heard of a state that allowed former and now non-residents to use their exemptions. He is wrong. He admitted to my husband he should of researched better.

Do we have a case against the guy? The 341 was yesterday at 11:30 AM. My husband tried to visit him around 2pm and he was "rushing" out of his office, barely saying a word to my husband. He's called him twice today and the attorney won't return our calls. What the hell?!??!?!?!?!??!

[Dogmatique]

How long have you been in SD?

How long were you in ME?

How long were you in PA?

Time line would help.

[doomed]

How long have you been in SD? 18 months

How long were you in PA? 6 months

How long were you in ME? 3 years


Time line would help.

I corrected the order for you . . We moved here to SD from PA and ME before that. Our lawyer told us we would use PA and use federal exemptions. We show up at 341 and trustee says NO. So then lawyer tries to say he was banking on the fact that no states allow former residents to use their exemptions, which is entirely untrue. Maine, along with atleast half of all others, does.

Obviously, we know now that the trustee is correct, based on the 720+180 rule, which apparently our lawyer has never heard of.

[Dogmatique]

Determining The Applicable State

If you live in a state that allows the choice of the federal bankruptcy exemptions, then you can choose the federal bankruptcy exemption without regard to how long you were living in the state.

730-day rule. If you have lived in a state for at least 730 calendar days continuously (2 years) previous to the filing of bankruptcy, you can use that state's exemptions or the federal options if the state allows it.

180-day rule. If you did not live in your current state continuously for at least 730 days, then you must pick the state in which you lived most of the time during the 180 days previous to the 730 days. In other words, the state that must be selected is where you lived most of the time between 2 and 2 ½ years before filing.

Default rule. If no state qualifies using the above rules or if the 180-day state requires current residency or domiciliary to use its exemptions, then the petitioner must use the federal exemptions. The default rule will only apply if you did not live in any state during the 180 day period that began 730 days before filing, or if the state requires current residency or domiciliary.

(from several sources)

[doomed]

Thanks, I'm aware of all of this now, after we've filed and had our 341. My question was, can we take our attorney to court for malpractice once this is all done? We've now gone from no asset to asset case and we're going to lose not only the vehicle we were giving up but my husbands vehicle too, and our savings and who knows what else, by losing the federal exemptions.

I mean, isn't knowing what state you're filing in and your exemptions kinda crucial? Do attorneys normally screw this up?