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adversarial proceeding

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  • adversarial proceeding

    I got a call from my attorney this morning stating that an AP has been filed against my by a credit union I owe money to. They're seeking something like 15K (about what I owe them for various loans). They're citing fraud as there reasoning. My only mistake was telling them that I paid no rent when I live with my mom (which I didn't at the time, but shortly there after, I did). It was a very off and on thing. I would pay rent when she needed help, and when she didn't, I wouldn't have to pay anything. Her health is up and down so bills come along from time to time. There is also the qustion of a motorcycle that I bought via a loan from this credit union which was stolen 2 months later (back in 2007) and recently recovered (2009) in pretty beat up shape. I think that it's possible they think I had something to do with the theft of the motorcycle or something which I didn't and I can prove. They converted their loan from secured to unsecured when they couldn't get the title due to it being stolen and then doubled my interest rate on the loan which I continued to pay without fail. Out of all my creditors, these guys were never paid late because they deducted from my paycheck every 2 weeks. I meet with my attorney on Weds to find out how much is going to cost me to retain him for the AP and what our options are.

    Im thinking that I can give them the beat up bike back (my only asset) and try to make a settlement with them on the 15K or so that they want. Id rather not give them anything (bike or money), but I am a realist and I don't have the money to fight this tooth and nail. Im not 100% sure it's worth going through the litigation and ending up on the hook for the 15K as a judgement. My gut tells me to fight for what is right, but my brain says take a settlement if they will offer one. Im looking for some wisdom here. Please feel free to chime in.... I need a drink
    Filed 6/4/09
    341 7/6/09
    Discharged 9/23/09

  • #2
    When they say fraud there has to be a range of reasons. They cannot possibly just go after you based on your rent figure. If they are only going after you for that, I would definitely go to court. They would have to prove you were or were not paying rent. When its out of the 60/90 day rule, the creditor must have a credible case. They cannot just pull something out of the hat and accuse you of fraud. There has to be some sort of intent on your behalf.

    How many payments did you make on the loans? Have you looked on pacer to see your actual AP?
    Last edited by shabam; 08-31-2009, 01:07 PM.
    My comments are solely based on my opinion. The information and links that I have
    posted are provided solely for informational purposes, and do not constitute legal advice

    Comment


    • #3
      I made payments on the loans from October 2007 until i filed in May of 2009 with out being late or missing one payment. I have not seen the actual AP on pacer yet, i'll login shortly to see if I can find it.
      Filed 6/4/09
      341 7/6/09
      Discharged 9/23/09

      Comment


      • #4
        Tell us what you find. You made 20 months worth of payments on the loan. How can they legitimately claim you intended to defraud them?
        Last edited by shabam; 08-31-2009, 01:10 PM.
        My comments are solely based on my opinion. The information and links that I have
        posted are provided solely for informational purposes, and do not constitute legal advice

        Comment


        • #5
          Originally posted by shabam View Post
          Tell us what you find. You made 20 months worth of payments on the loan. Therefore, how can you have intended to defraud them.
          Well he is back in possession of the asset that the bank thought was long gone and had modified his secured loan to an unsecured loan. They probably find the idea that the motorcycle incredibly reappeared just after the bk filing as possibly a fraudulent event.
          Well, I did. Every one of 'em. Mostly I remember the last one. The wild finish. A guy standing on a station platform in the rain with a comical look in his face because his insides have been kicked out. -Rick

          Comment


          • #6
            It will be interesting to hear what they entered in their AP.

            How would they even know he got the asset back? Finding assets is usually something the trustee or UST would go after.
            My comments are solely based on my opinion. The information and links that I have
            posted are provided solely for informational purposes, and do not constitute legal advice

            Comment


            • #7
              Originally posted by shabam View Post
              It will be interesting to hear what they entered in their AP.

              How would they even know he got the asset back? Finding assets is usually something the trustee or UST would go after.
              Read this thread: http://www.bkforum.com/showthread.php?t=43668&page=2



              He was anticipating the AP. I think there is more to the story than we're reading.
              Well, I did. Every one of 'em. Mostly I remember the last one. The wild finish. A guy standing on a station platform in the rain with a comical look in his face because his insides have been kicked out. -Rick

              Comment


              • #8
                I wasn't anticipating the AP per say. I was anticipating them wanting the bike back or to eat least hear something from them since they showed at the 340 and informally requested a 2004. There isn't anything more to the story than what im telling you. I think that everyone thinks there is more involved...which is probably why I got the AP. I just got a copy of the AP, i'll get it formated and posted for review.
                Filed 6/4/09
                341 7/6/09
                Discharged 9/23/09

                Comment


                • #9
                  Originally posted by Meh View Post
                  I wasn't anticipating the AP per say. I was anticipating them wanting the bike back or to eat least hear something from them since they showed at the 340 and informally requested a 2004. There isn't anything more to the story than what im telling you. I think that everyone thinks there is more involved...which is probably why I got the AP. I just got a copy of the AP, i'll get it formated and posted for review.
                  This is what you posted the other day:

                  So I just got off the phone with my attorney. We are in agreement thet there are no lien on the bike but is afraid that a creditor may file an AP. The situation is sticky.
                  Well, I did. Every one of 'em. Mostly I remember the last one. The wild finish. A guy standing on a station platform in the rain with a comical look in his face because his insides have been kicked out. -Rick

                  Comment


                  • #10
                    Originally posted by OhioFiler View Post
                    They probably find the idea that the motorcycle incredibly reappeared just after the bk filing as possibly a fraudulent event.
                    It's a credit union. Nothing is surprising with them.
                    A rational person would not think it's strange at all that it appeared before discharge, provided the filing was amended. Now had it appeared shortly after discharge or closing......

                    Regardless, it's all about the value of this bike. Having owned several, I know just how little damage can result in a bike being considered totaled. A theft recovery could easily fit the bill.
                    No Asset 7 closed 11/09

                    Comment


                    • #11
                      Originally posted by Chowder View Post
                      It's a credit union. Nothing is surprising with them.
                      A rational person would not think it's strange at all that it appeared before discharge, provided the filing was amended. Now had it appeared shortly after discharge or closing......

                      Regardless, it's all about the value of this bike. Having owned several, I know just how little damage can result in a bike being considered totaled. A theft recovery could easily fit the bill.
                      The filing wasn't amended. The CU had already converted the secured loan to an unsecured loan.
                      Well, I did. Every one of 'em. Mostly I remember the last one. The wild finish. A guy standing on a station platform in the rain with a comical look in his face because his insides have been kicked out. -Rick

                      Comment


                      • #12
                        Well he does have a police report that it was recovered. So they cannot claim he hid it from them. I am interested to see what other bs they piled on for the AP. Sounds like the CU is grasping for straws to get paid.
                        My comments are solely based on my opinion. The information and links that I have
                        posted are provided solely for informational purposes, and do not constitute legal advice

                        Comment


                        • #13
                          Originally posted by OhioFiler View Post
                          This is what you posted the other day:
                          My attorney was worried, I wasn't. I thought before the requested an AP they would request a 2004 formally. I was ready for the 2004. The AP caught me slightly off garud.
                          Filed 6/4/09
                          341 7/6/09
                          Discharged 9/23/09

                          Comment


                          • #14
                            Originally posted by OhioFiler View Post
                            The filing wasn't amended. The CU had already converted the secured loan to an unsecured loan.
                            I contacted my attorney the day I recovered the bike and told them. They said they would ammend the filing to show it. I talked to the paralegal on Weds or Thursday of last week and she said she had done it or was in the process of doing it at that exact moment. I haven't attempted to hide anything from them or anything. The bike will likely cost me 3-4 grand to repair and it's only worth 5 in perfect conditon with a non salvage title. They can have it if that's what they want. Im still formating the AP, hope to have it done within the hour. Thanks for the help guys!
                            Filed 6/4/09
                            341 7/6/09
                            Discharged 9/23/09

                            Comment


                            • #15
                              Here is the meat of the AP via Microsoft Word:

                              Defendant filed a Ch 7 BK petition on June 4th 2009.
                              Prior to the filing of the petition, defendant obtained the following loans from Plaintiffs:

                              Loan 1 was made in March 2007. The balance on that loan is $3966.19

                              Loan 2 was made on November 2008. The balance on that loan is $5,777.09. This loan was for the purchase of a motorcycle.

                              Loan 3 was made on June 2007. The balance due on that loan is 4,943.63

                              The defendant obtained a forth loan on Feb 25th 2009 in the amount of $1,000

                              Count one
                              Defendant borrowed the money from Plaintiff by representing that Defendant would abide by the terms and conditions of the various notes and agreements and repay all the amounts borrowed.
                              At the time Defendant obtained the loans, he did not intend to repay Plaintiff. Defendant intentionally defrauded Plaintiff by accepting the benefits of the loans, representing that Defendant would and could repay the monies borrowed when in fact the defendant never intended to repair the obligations as evidence by the defendant’s conduct.
                              Plaintiff relied upon defendant’s misrepresentations and allowed defendant to obtain the loan proceeds and use the line of credit. Such reliance was based, in parts, on the information provided by defendant on the applications.
                              Plaintiff’s reliance on Defendant’s misreprenstaion that, by obtaining and using the loan proceeds and line of credit, defendant would repay the amounts borrowed under the terms and conditions of the notes and agreements was justified.
                              As a result if defendants actions, plaintiff sustained damages in the amount of 15,686.91
                              By reason of the forgoing, defendant obtained money from plaintiff by false pretenses, false representations or actual fraud.
                              Wherefore, plaintiff requests this Court to enter a judgment declaring the sub of 15686.91 to be non-dischargeable, together with interest and costs.

                              Count Two

                              Defendant submitted an application before obtaining the Loan 1, Loan 2 and Loan 3 loans from the Plaintiff.
                              The info provided in the application and the materials submitted with the application were materially false respecting defendant’s financial condition.
                              Plaintiff relied on the info submitted in making the loan and plaintiff’s reliance was reasonable.
                              Defendant made the representations with intent to deceive Plaintiff for purposes of obtaining loans from Plaintiff from Plaintiff.
                              Where for plaintiff request judgment for 15686.91 to be non dischargeable.

                              Count Three

                              Defending obtained a loan for the purchase of a motorcycle and title was to be issued with plaintiff as Lien holder. Defendant, shortly after the transaction reported the bike stolen. Defendant’s insurance carrier would not pay the claim for the alleged theft of motorcycle because defendant misrepresented info in the policy application. Wherefore plaintiff requests judgment declaring the sum of 577.09 to be non discharbale.

                              Count Four

                              Defendant is no in possession of the motorcycle. He did not list the motorcycle in his schedules and has not amended his schedule to reflect that he is in possession of the motorcycle. Where for they request $5,777.09 to be non dischargeable.
                              Filed 6/4/09
                              341 7/6/09
                              Discharged 9/23/09

                              Comment

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