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adversary proceeding, Worried, please help

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  • adversary proceeding, Worried, please help

    i filed & have received my discharge of my ch. 7 bk. however one of the debtors filed an adversary proceeding claiming that theyre debt is non dischargeable because i never made 1 payment & 2 because i misrepresented my income on the credit card application.

    i have 3 questions...

    1. do i have any chance of winning this case? ive read on this site that its a slam dunk win for amex because i never made a payment.

    2. do i have any risk of jail time for misrepresenting my income on the credit card application?

    3. what is the best way to handle this? should i fight it or just not respond & let them win the judgement?

    thank you for your help

  • #2
    What was the nature of the Amex charges and now much were they? How long between the charges and the bk filing? How long did you have the Amex? How badly did you misprepresent your income?
    What does your lawyer say?

    Comment


    • #3
      We would need more info to determine how likely you are to win your AP, but usually a creditor will not file an AP unless their case is solid. (unless it is a crazy family member or disgruntled ex-spouse filing the AP, etc.)

      Here is some info regarding APs in general to consider:

      1. They cost around $5,000 and up to defend. Defending AP's are not included in your original bankruptcy fee that you paid your attorney.

      2. Large cash advances taken several months before filing, where no payments were made on the debt can trigger an AP.

      3. Purchase of expensive electronics (computers, plasma tv, etc) within a couple of months of filing can trigger an AP.

      4. The creditor will use your income misstatement as an additional point in their case, but it is hard to prove. The creditor's main argument will usually be that you knew you were insolvent at the time you made the purchases. If you made these purchases just a few months before filing, the creditor will have a strong case.

      If you give us more details about the specific charges that are being contested in the AP we can give you more specific comments.
      Last edited by backtoschool; 10-02-2009, 01:29 PM.
      You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

      Comment


      • #4
        made the charges late sept 08 & filed late may 09, (8 months between) i charged 10k to the card.

        i had the card for about 8 months before making these charges.

        dont know exactly but i think i misrepresented my income by about 400k ( not certain on that though)

        here are the complaints summarized.

        they are saying that i charged the amount to my card for luxury goods with no ability or intent to repay. (the charges went to a persons personal paypal account & were for a business transaction.

        i never made 1 payment.

        i misrepresented my income on the credit card application.

        Comment


        • #5
          Originally posted by jturk View Post
          made the charges late sept 08 & filed late may 09, (8 months between) i charged 10k to the card.

          i had the card for about 8 months before making these charges.

          dont know exactly but i think i misrepresented my income by about 400k ( not certain on that though)

          here are the complaints summarized.

          they are saying that i charged the amount to my card for luxury goods with no ability or intent to repay. (the charges went to a persons personal paypal account & were for a business transaction.

          i never made 1 payment.

          i misrepresented my income on the credit card application.
          Ok, here is more info for the other readers of this thread. You have asked this question in another thread. Here is the thread.

          http://www.bkforum.com/showthread.php?t=44495

          If the facts have not changed in a month since that thread, then amex will win the AP. Here are the reasons that amex will win, for readers of this thread that do not want to look at the old thread.

          1. The charges were two large payments on paypal to an individual for partial ownership of a computer dating site. The payments will be seen as cash advances that you never made a payment on. Amex will claim that taking two large advances in a short period of time and never making a payment on those advances shows intent to fraud on your part.

          2. A 400k misstatement of income on your amex application is fraud and will help amex show that you had an intent to fraud them.

          Amex will most likely win here.
          Last edited by backtoschool; 10-02-2009, 02:12 PM. Reason: typos
          You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

          Comment


          • #6
            How close to your discharge date did they file the AP?
            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
              i received theyre complaint letter about a month before i received my discharge papers.

              Comment


              • #8
                Computer dating site ?? God I'd hate to hear that be brought up in court. Hope she was worth it.
                Stopped Paying CC's 2/2009. Retained Attorney 1/10/2010 Filed 1/23/2010. Discharged 5/19/10 $187K CC, $240K 2nd,$417K 1st, No asset Ch-7

                Comment


                • #9
                  There is certainly a long enough time period between the charges and the time you filed. The thing that concerns me is 400K is a big number to misstate.

                  It may be worth your while to attempt a settlement with them. Have you discussed this with your attorney?
                  Filed Chapter 7: 7/3/09
                  341 Hearing: 8/6/09 - Went Smoothly!
                  Discharged: 11/30/2009
                  Closed: 12/16/2009

                  Comment


                  • #10
                    Originally posted by 2manybills View Post
                    There is certainly a long enough time period between the charges and the time you filed. The thing that concerns me is 400K is a big number to misstate.

                    It may be worth your while to attempt a settlement with them. Have you discussed this with your attorney?
                    I agree with 2manybills that the eight months is long enough between the charges and the AP, but the OP never made even one minimum payment in those eight months, which makes it relatively easy for amex to show intent to fraud, especially combined with the 400k misstatement of income.
                    You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

                    Comment


                    • #11
                      I would look at settling.

                      If you had made at least three or four payments, then this would have at least showed good faith. The issue regarding the income can be a problem but also a defense too. You did state you earned $400K so that would be an issue. However, what did they do to verify this? It's not as if they gave you a $100k credit line and you simply went out and spent it. I am guessing that even if you put down $40K, you still would have been allocated that credit.
                      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


                      • #12
                        the charges were not for computer dating. the funds were intended to be used to create a computer dating site.

                        also i could be wrong about the amount of the income stated on the application. thats my best recollection.

                        Comment


                        • #13
                          Originally posted by jturk View Post
                          the charges were not for computer dating. the funds were intended to be used to create a computer dating site.

                          also i could be wrong about the amount of the income stated on the application. thats my best recollection.
                          I guess you could say it was projected income, but i still think it may be tough. Again, sometimes its worth it to settle. These guys are taking pennies on the dollar, especially in lieu of spending the $$ to fight it themselves.
                          Filed Chapter 7: 7/3/09
                          341 Hearing: 8/6/09 - Went Smoothly!
                          Discharged: 11/30/2009
                          Closed: 12/16/2009

                          Comment


                          • #14
                            Originally posted by jturk View Post
                            the charges were not for computer dating. the funds were intended to be used to create a computer dating site.

                            also i could be wrong about the amount of the income stated on the application. thats my best recollection.
                            I guess at this point I would ask you what answers and advice are you looking for from us? I think we have beaten the point to death that amex has a solid AP case here. Settling is probably your least expensive option at this point. An AP will cost you around $5,000 in legal fees PLUS the non-discharged debt.
                            You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

                            Comment


                            • #15
                              ok all that being said, how much should i offer them? i owe 10k, how much will creditors usually settle for?

                              Comment

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