Bankruptcy Malpractice

[woodrow]

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


At the time I filed for bankruptcy, I owed (because of ex-husband's multi-year failure to pay his business taxes) over $118,000 in back-taxes. My bankruptcy attorney did not advise me of any options with respect to the TIMING of my filing. At the final discharge, the trustee made the remark that I should now experience some relief from certain of the oldest tax debts.

Later, I learned that the trustee was correct. But I was furious when I learned that, had my attorney advised me to wait 54 days longer before filing, I would have had an additional $37,000 fall off the tax total.

When I brought this to the attention of a tax attorney, he said I should sue the bankruptcy attorney for malpractice. He said the bankruptcy attorney's failure to tell me of the options/consequences of the TIMING of my filing was an "actionable" offense and should be pursued in a malpractice suit. He said no competent bankruptcy attorney acting in a proper fiduciary capacity would have made such an expensive mistake.

What do you think?

Thanks

[aaron]

You should consult a lawyer who handles legal malpractice cases, to have your case fully evaluated.

Is this a Chapter 7 case or Chapter 13? How many years ago did this occur?

[woodrow]

Ch. 7.

Everything happened last year: The original filing was Feb. 22, 2008 and the final discharge took place May 13, 2008. If the original filing had been postponed to April 16, the 2004 back taxes ($37,000+) would have fallen off along with the 2001-03 taxes. I would gladly have delayed the filing for 8 weeks if I had known such a delay would save me $37,000. At no time in the proceedings did the attorney advise me of the relationship of filing dates and back-taxes discharge rules.

[woodrow]

A new thought has come to me since my last post. As I said earlier, my bankruptcy attorney failed to acquaint me with the importance of TIMING my filing correctly and so cost me $37,000. To add insult to injury, I now have reason to believe my ex plans to file bankruptcy with a VERY CAREFUL view to timing so he succeeds in discharging ALL the taxes that we incurred jointly ($118,000). He will likely do this in late April. A filing on or after April 16 of this year will successfully discharge ALL his back taxes.
This sets up my question. Even though my ex's Ch. 7 filing will discharge all the back taxes he owes, this action by him will not discharge the back taxes I still owe as a result of bad legal advice. But in our divorce decree, it says my ex will pay all back taxes. Clearly, he plans to use a well-timed Ch. 7 filing to get out of paying back taxes in his name. But such a filing won't get him out of still owing for MY surviving back taxes, will it?
I guess my ultimate question is: Once he satisfactorily concludes his Ch. 7 filing and gets his back taxes fully discharged ($118,000), can I then file against him to pay MY back taxes which the final divorce decree says he is responsible for? (As I type this, it occurs to me that my question is not really in the "legal malpractice" area any more. If someone knows the answer to my question, I will be grateful for an answer. If I need to route my question to a different section of the forum, I will gladly do that -- just so I somehow get an answer.)
Thanks.