Bernstein Law Firm often represents creditors in consumer bankruptcy cases, whether for clients directly or as local counsel. Most of the time, the debtor on the other side of the matter is represented by counsel, but sometimes they represent themselves Pro se – meaning they are their own attorney.
The Bankruptcy Code specifically permits people to represent themselves in bankruptcy, although an owner of a business cannot represent himself or herself if the business has filed for bankruptcy. In that case, an attorney must appear for the business at all hearings.
Whether a person should represent themselves in their own bankruptcy is another question – the Bankruptcy Code contains many pit traps for the unwary and can even seem a tad complex at times to your average 10-year practitioner such as myself.
Most Chapter 13s and Chapter 7s filed Pro Se fail almost immediately because the debtor neglects to file the necessary documents to get the case started – such as completed Schedules or the Certificate of Credit Counseling.
However, if the debtor clears the first few hurdles and the case survives, the case may reach the point where we would become involved on behalf of a creditor. At that point, I have observed a modified set of rules being applied to Pro Se debtors and want to share some tips about how to approach these cases to get the desired result.
I have observed that judges will give Pro Se debtors more of a benefit of the doubt, forgive pleading deficiencies and tolerate worse behavior and appearance than from an attorney representing the debtor.
Judges will also invariably let the debtor have his/her day in court no matter how irrational the complaint or defense. Pro Se debtors are more likely to be allowed to proceed with an action to the conclusion and to be allowed to vent/rant their position ad infinitum. However, at the end of the proceeding, the court will rule on the matter impartially most often against the Pro Se debtor. I applaud judges for this approach because it allows the Pro Se debtor to feel like they were at least able to get their point off their chest.
In one infamous case in our office (where the parties will have to remain anonymous), a Pro Se debtor sought to discharge his student loans despite the fact that he was young, healthy and employed. The Pro Se debtor’s pleadings contained insults and wild accusations against the opposing attorneys, the clerk of courts and the judge himself. The Pro Se debtor’s behavior in court was so erratic and threatening that security staff were brought into the courtroom to ensure order was maintained.
Nevertheless, the judge involved maintained decorum in the courtroom and treated the Pro Se debtor with absolute respect. The debtor was allowed to proceed to trial despite refusing to turn over relevant evidence to opposing counsel. At trial, the debtor did not present a witness. The proceeding was to a degree a wasted enterprise for all involved, but the Pro Se debtor had his day in court. In a way, the process of justice was served.
In summary, the lessons I have learned from opposing Pro Se debtors are the following:
1. The court will indulge their often incoherent arguments and treat them with respect, even if the debtor is not returning the respect by his comments, demeanor or dress. Opposing attorneys should do the same and avoid patronizing or insulting the debtor. If that occurs, the court will be upset with the creditor’s attorney.
2. The court will often forgive pleading errors that would be more important if made by an attorney, including timing and service errors. It is not always useful to concentrate on the debtor’s procedural mistakes. The best approach is to address the merits.
3. The court will want the creditor’s attorney to address the debtor’s concerns, no matter how confusingly presented. The court will appreciate goodwill gestures by the creditors such as small compromises or offers to consider the debtor’s concerns outside of the bankruptcy process.