Post dated checks in payment of the debtor’s attorneys fees create a prepetition claim, subject to the automatic stay and the bankruptcy discharge, held the court inWalton v. Clark & Washington (Bnkr. MD FL 2011). The opinion rejects the claim that the checks and the fee agreement created an executory contract and went on to hold that the post dated checks created an impermissible conflict between the debtor and the attorney.
This decision falls in behind the 9th Circuit decision in Biggar that the debt for the unpaid balance of bankruptcy attorneys fees was not an unwritten exception to discharge; exceptions were confined to those enumerated in §523.
The lesson, however difficult, is clear. You cannot collect on a prepetition fee agreement post petition.
The economics of this practice are undoubtedly hard. But, as I told my kids when they whined that something was hard, “you can do hard things.”
Image courtesy of Les Haines.