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Dear Bankruptcy Adviser,
I had my bankruptcy filed in May 2006. I was told at my 341 meeting that I was discharged by my trustee. However, I got dismissed
for failure of my attorney to file my Financial Management Certificate, after it was faxed to him on three separate occasions. My
attorney will not answer or return any calls. He's always with other clients. How do I get this corrected and get discharged?
-- Heather
Dear Heather,
This is a very common occurrence and most local bankruptcy district courts have made appropriate changes to the system. I am not sure
why your case was dismissed, and not simply closed. Most of the time, failing to file the second certificate, called the Financial
Management Certificate, causes the case to be closed without a discharge. Meaning, your bankruptcy case has been concluded, but the
debts have not been officially eliminated.
For those unfamiliar with bankruptcy terms, the ultimate goal when you file bankruptcy is to receive a "discharge" of
debts. This means that all pre-bankruptcy debt is eliminated.
A dismissal, in general, means that you either did not qualify for bankruptcy relief, or you failed to properly comply
with local bankruptcy rules.
In the district in which I practice, the court has addressed this issue and allows people to reopen their case, file
the second certificate and receive their bankruptcy discharge. The cost is $260 to reopen your case and allow you to file the missing
document.
If your specific district has not created a similar process, then you will need to file a motion to reopen your case.
You have valid grounds to reopen, as your attorney should have filed the second certificate. Judges are not inclined to punish a client
for the failures of his or her attorney. Therefore, the motion to reopen likely will be granted.
Go to the official bankruptcy courts
Web site for the district in which you filed your
case. Look through the list of documents relating
to bankruptcy. In California, the document is
Form 5010-1, Debtor's Motion to Reopen Case and
for Extension of Time to File Certificate of Completion
of Postpetition Instructional Course Concerning
Personal Financial Management. A similar form
may be available and you may be able to complete
it yourself.
Failure to rectify this situation will mean your bankruptcy was a complete waste of time and money. While the cost to
correct this mistake may be significant, look at the larger picture: You will eventually be able to eliminate all your credit cards and
get the relief you deserve.
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