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Help! Mostly won AP but suspect appeal will be filed

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  • Help! Mostly won AP but suspect appeal will be filed

    I filed an AP pro se. I tried to settle before trial but ECMC would have none of it. Judgment dismissed $28K of my student loans, and required me to pay $8K.

    The opposing counsel has filed for a transcript and the little box that says 'is this for an appeal.' If they appeal, WTF do I do next. I just want this nightmare over. I was treated for a very, very bad type of cancer two years ago and I do not need this stress in my life. I really, really despise the opposing counsel. He freaked out on me during the trial, and I almost started laughing at him because he was acting like such an a$$hole. I think he thought he was being some sort of tough guy.

    Anyway.... Any advice would be really, really appreciated so I can get to work on my appeal response or whatever it is I will need to file. I think the admission of some exhibits will be the substance of their appeal. They submitted a motion in limine trying to exclude some of my exhibits. I filed a response that the judge agreed with and the exhibits were introduced. Some of the exhibits were admitted for hearsay purposes because they were produced by the National Cancer Institute pursuant to the National Cancer Act.

    Complicating issues is that I am out of the country until July.

    HELP!!!!!!!!!!
    Filed Ch 7 pro se Oct 2010 . Filed student loan AP pro se Feb 2011 . Discharged Feb 2011 . AP trial 1/10/2012 . $28K in student loans dismissed Jan 2012 . ECMC appealed. Appeal hearing 7/2012. Original judgment upheld 9/2012.

  • #2
    Look at your local rules of bankruptcy procedures, the 8000 series.

    The plaintiff will need to file a Notice of Appeal. The Federal Rules require the notice to be filed within 14 days of the entry of the judgment of the bankruptcy court.

    However, you will want to review your local rules to see if the procedure differs.

    Generally, any time a lender loses on a student loan case, you should "expect" an appeal. However, given the amounts involved ($36,000) they "might" not.

    That is all you can do, there is nothing proactive you can do, if they appeal, they appeal, and you will need to respond.

    Comment


    • #3
      As HHM states, ECMC has 14 days from the entry on the docket of the ruling to file a Notice of Appeal. While ordering the transcript is concerning, my gut tells me that ECMC is not going to appeal. To be reversed on appeal, ECMC would have to show that your judge "abused his discretion" in going through the Brunner factors. The "abuse of discretion" standard is very hard to show. My guess is that ECMC wants to review the transcript to make sure that the testimony "justifies" a partial discharge.

      For now, do not lose sleep over this issue. Wait the 14 days. Let us know if a Notice of Appeal is filed.

      And. . .

      If you are so inclined, please go to Suzie Orman's web site and let her know what an idiot she is. According to her, student loans simply cannot be discharged. Pisses me off. Have to wonder how many folks out there, in similar shoes to you, think they can't even attempt to discharge loans because of her comments.

      Kudos to you for your successful efforts and I wish you the best.

      Des.

      Comment


      • #4
        Yes, kudos to a pro se debtor who actually was able to not open an adversary proceeding (AP) but also get a partial judgment in your favor! Yes, your case reads as though you are deserving of some non-dischargebility of the debt given your condition. I don't have much else to say but best wishes on a very quiet passing of the 14-day period to file an appeal or seek an order vacating a final order of the court!
        Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
        Status: (Auto) Discharged and Closed! 5/10
        Visit My BKForum Blog: justbroke's Blog


        I am not an attorney. Any advice provided is not legal advice.

        Comment


        • #5
          Thanks all. At this point, I think ECMC is just throwing good money after bad if they appeal. This coming Friday, February 3 is the final day for the notice of appeal to be filed. Actually, the whole case has been a bit of throwing good money after bad, as I tried and tried to get a settlement offer from ECMC to no avail.

          And despritfreya I will go to Suzie Orman's site and clarify things. I think a lot of people could probably get at least a partial discharge, but they are basically scared off doing anything because they see "student loans are never discharged" repeated so often. I do admit I had a somewhat exceptional case.

          I do plan on FOIAing ECMC's records and finding out how much they spent on the local attorneys. I plan to write my Senators and Representative to let them know what a screwed up processes we currently have regarding student loan debt.
          Filed Ch 7 pro se Oct 2010 . Filed student loan AP pro se Feb 2011 . Discharged Feb 2011 . AP trial 1/10/2012 . $28K in student loans dismissed Jan 2012 . ECMC appealed. Appeal hearing 7/2012. Original judgment upheld 9/2012.

          Comment


          • #6
            Actually, not sure the FOIA will work, ECMC is a private company, not a government entity, but if you could get the info, that would be interesting.

            The government actually has a formula for this (it is official Department of Education policy to oppose student loan discharge).
            The formula is simply, if the cost to defend is 1/3 or less of the balance owed, then Dept of Education says, "oppose discharge".

            http://www.**********.com/blog/2010/...ent-loan-debt/

            Comment


            • #7
              Just out of curiosity, is there any way to estimate what an average cost-to-defend for government student loans might be for an AP? If there is a way to guesstimate a threshold amount, that would be very powerful information for people who might be considering filing an AP.

              Comment


              • #8
                Well, the Notice of Appeal was filed. I'm going to call the ECMC jokers in Saint Paul to set up a payment plan for the judgement amount and try and determine how serious they are about the appeal.
                Filed Ch 7 pro se Oct 2010 . Filed student loan AP pro se Feb 2011 . Discharged Feb 2011 . AP trial 1/10/2012 . $28K in student loans dismissed Jan 2012 . ECMC appealed. Appeal hearing 7/2012. Original judgment upheld 9/2012.

                Comment


                • #9
                  Not unexpected. Hope is not lost, the Notice gets filed regardless to preserve the right of appeal, but sometimes, after they look at it, they may withdraw it.

                  I think at this point, you may want to consider getting an attorney, the battle is going to turn from one of facts, to one of law. Maybe start by calling NCLC (National Consumer Law Center) and see if they have someone who can help. Since you won at BK court, they may be able to find someone to handle the appeal (it is worth a shot).

                  Do keep us posted.

                  Comment


                  • #10
                    Originally posted by GoGoGophers View Post
                    Just out of curiosity, is there any way to estimate what an average cost-to-defend for government student loans might be for an AP? If there is a way to guesstimate a threshold amount, that would be very powerful information for people who might be considering filing an AP.
                    Hard to say, but mostly likely, you can expect them to defend anything north of $20K.

                    Comment


                    • #11
                      I see that you represented yourself Pro Se. Did you use any particular books to help you through the process, etc. ?


                      While I've had numerous attorneys tell me that I'm a good candidate to be able to win an AP, I can't afford their costs. (If I could, I'd just pay off my loans.)


                      I am looking to do the Pro Se route too, but would love if you have any advice as to where to look for guidance on forms/going through the process. Thanks!

                      Comment


                      • #12
                        Okay I'm officially annoyed. I typed out a lengthy response twice only to have them not be submitted and me be directed to another Reply to Thread page.

                        Short answer: I used the Bankrupt your student loans book for the initial filing of my AP. Beyond that, it was research via Google and PACER. I made sure to read the Trial Brief and judgements involving the judge overseeing my case and the attorneys representing ECMC and also find as many recent cases in the ninth circuit as I could.
                        Filed Ch 7 pro se Oct 2010 . Filed student loan AP pro se Feb 2011 . Discharged Feb 2011 . AP trial 1/10/2012 . $28K in student loans dismissed Jan 2012 . ECMC appealed. Appeal hearing 7/2012. Original judgment upheld 9/2012.

                        Comment


                        • #13
                          Originally posted by wipetheslate View Post
                          Okay I'm officially annoyed. I typed out a lengthy response twice only to have them not be submitted and me be directed to another Reply to Thread page.
                          Not an unusual occurrence. I got around the problem by typing my response in word or word perfect then cutting and pasting. Hit the post button and if it does not post, try again until it does. At least what I typed is saved in my word document until the post goes through. Then I delete it. Works every time.

                          Des.

                          Comment


                          • #14
                            Originally posted by wipetheslate View Post
                            Okay I'm officially annoyed. I typed out a lengthy response twice only to have them not be submitted and me be directed to another Reply to Thread page.

                            Short answer: I used the Bankrupt your student loans book for the initial filing of my AP. Beyond that, it was research via Google and PACER. I made sure to read the Trial Brief and judgements involving the judge overseeing my case and the attorneys representing ECMC and also find as many recent cases in the ninth circuit as I could.
                            Thanks for the info! I was wondering if I should invest in that book.

                            Good luck on your continued fight! Keep us updated.

                            Comment


                            • #15
                              Wipetheslate.

                              Bumping this thread. . . and I hope you are still subscribed to it. . .

                              I just wanted to congratulate you . . . 9/11/12. . .

                              “ORDERED PUBLISHED. . .

                              Conclusion. . .

                              Having determined the bankruptcy court’s factual findings are not clearly erroneous and the bankruptcy court correctly applied the Brunner test, we AFFIRM.”
                              I realize this board is suppose to be anonymous but your efforts will help others that come after you. You were forced into an appeal and, as it turns out, your pro se victory will set precedent in the 9th Circuit - although each case does turn on the specific facts. With any luck, lenders will think twice about putting debtors through what you had to endure.

                              Hopefully this will be the end and there will not be an appeal to the 9th Circuit Court of Appeals.

                              Best regards,

                              Des.

                              Comment

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