December 2007

Help Offered for Pro Se Filers and Bankruptcy Courts

Filing a bankruptcy case pro se—without the assistance of an attorney—is not for the faint of heart. “Before the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), a pro se debtor could successfully navigate filing a Chapter 7 bankruptcy,” said Bankruptcy Judge S. Martin Teel, Jr. (D.D.C.). “But with the new Act and its many technical requirements, it’s really a minefield for pro se filers.”

Now the Administrative Office’s Bankruptcy Judges Advisory Group (BJAG), of which Teel is a member, has developed a helpful web page for individuals who are thinking of filing a bankruptcy petition pro se. The website is www.uscourts.gov/bankruptcycourts/prose.html.

“We noted the growth in pro se filings around the country, particularly after the BAPCPA was implemented,” said Chief Bankruptcy Judge Judith Wizmur (D. NJ), BJAG’s chair. “The reason for the increase may be that some attorneys who dabbled in bankruptcy filings were driven out of the field, deterred by the complexities and the greater impositions the law placed on attorneys. The growth in pro se filings also has increased pressure on bankruptcy clerks and courts, so we thought we could assist with a web page for pro se filers.”

The website’s message is cautionary. “While individuals can file a bankruptcy case without an attorney or pro se,” the opening text warns, “it is extremely difficult to do it successfully. . . . The rules are very technical, and a misstep may affect a debtor’s rights. For example, a debtor whose case is dismissed for failure to file a required document, . . . may lose the right to file another case or lose protections in a later case, including the benefit of the automatic stay.”

If an individual is still intent on filing pro se, the page provides information on credit counseling, free legal services, foreclosure resources, and petition preparers. Links direct a user to the local website of the court in which they may file a bankruptcy petition.

The pro se website is the BJAG’s first round effort. “It will evolve and become more sophisticated with links to other organizations,” Wizmur said. The site already links to the ABA and its attorney resources, the Legal Services Corporation, HUD’s approved housing counseling agencies, the Federal Trade Commission’s mortgage facts for consumers, and Freddie Mac’s guide to avoiding foreclosures.

“We’re also exploring the role of the clerk’s office to see how we can help them,” Wizmur adds. She notes that a very large pro se population prompted the clerk’s office in the Bankruptcy Court for the Eastern District of New York to hire the first pro se law clerk just for bankruptcy. The Advisory Group also will have suggestions for the physical set-up of the clerk’s office—in terms of computer access­—that may help filers and court staff.

“There is great variation in how individual courts handle pro se filers,” said Wizmur. “Some are successful in reaching out to pro se filers, and some could use some help.”

That’s why the Advisory Group’s next step will be to disseminate information to bankruptcy judges on some of the approaches being taken by courts in pro se bankruptcy filing.

“We recognized that it will be useful for the bankruptcy courts to be apprised of the different approaches in providing assistance to pro se parties,” said Teel, who chairs a subcommittee established by BJAG. For example, his subcommittee is canvassing various court websites regarding information made available to pro ses. The subcommittee’s goal is a compilation for bankruptcy judges regarding useful approaches so that a court will not need to reinvent the wheel in implementing steps to assist pro ses.

“We are looking to assist the local courts,” said Wizmur. “We highlight the possibilities and programs. Each bankruptcy court will structure their resources their own way.”