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Need help to file an AP against exhub

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  • Need help to file an AP against exhub

    I have been divorced for 5 years and have a property settlement agreement stating he was responsible for his student loans and 1 credit card. I was the Co-signer.

    Being the person that he is... he never took me off the loans by refinancing or paying them off. Over the years I have sent him numerous cert. letters and filed out loan applications with "sign here" tabs and stamped addressed envelopes requesting he refinance.

    It's mostly just been a irritating situation until recently. He began being regularly late. I have been harassed by the creditors and they call me asking for the full amount due.

    I filed a pro-se contempt motion in order to "push him" to get me off the debt. He filed chap 7 five days later...

    My concern is that now he will be released from the debt and I will be solely responsible.

    Do I file a motion objection to discharge? Should I call the creditors and ask them to file an objection?
    Does it help me I filed contempt prior to him filing chapter 7?

    Any help would be appreciated.

  • #2
    This is an issue that will be handled in Family Court, not bankruptcy court.

    He WILL discharge his liability to the banks for this debt (not the student loan), but the terms of the settlement agreement/divorce decree are NOT discharged. Thus, if the settlement agreement says he is responsible for those debts, a BK will not undue that.

    You do not need an AP, what you need is a Motion to Lift the Automatic Stay so your contempt proceeding in Family Court can go forward.

    Comment


    • #3
      The student loan is not a federal loan. I believe he can discharge those types of student loans?
      I filed on the April 23 for contempt and he filed chapter 7 on April 28. We have a court date for the Contempt on June 15th. The meeting for creditors is May 26th.
      Do I need the motion to lift the automatic stay by the 26th? Perhaps I should ask the banks that hold the debits file the motion?

      Deadlines to file complaints is 7/26/10 so the judgement for contempt will be entered before the deadline.

      Comment


      • #4
        The divorce settlement agreement is not binding on the banks. They aren't the ones going to be doing any motions with the BK Court. It seems very common that divorce lawyers don't fully explain the pitfalls of assigning debt in a divorce settlement.

        Did he properly list his obligations to you in his BK filing (you would have been noticed by the court)?

        You need to do what was mentioned above and get the automatic stay lifted for yourself, so you can pursue family court action to compel him to pay.

        Comment


        • #5
          Originally posted by exhubsucks View Post
          The student loan is not a federal loan. I believe he can discharge those types of student loans?
          I filed on the April 23 for contempt and he filed chapter 7 on April 28. We have a court date for the Contempt on June 15th. The meeting for creditors is May 26th.
          Do I need the motion to lift the automatic stay by the 26th? Perhaps I should ask the banks that hold the debits file the motion?

          Deadlines to file complaints is 7/26/10 so the judgement for contempt will be entered before the deadline.
          As to the student loans, it doesn't matter, since 2005 (the BK code amended) there is no distinction between public vs private loan, Any Student Loan CANNOT be discharged.

          The banks are NOT going to do anything, they don't have too, and there is nothing for them to do.

          Go to your local BK courts website. Look for the Local Rules of Procedure. As for lifting the automatic stay, that can filed at anytime.

          Comment


          • #6
            He listed me as a codebtor. And I was notified by letter from his lawyer.
            Do I need to go to the creditors meeting?

            Comment


            • #7
              Yes you should. Go to the meeting of Creditors, called here the 341, and present your case to the trustee. Tell him/her exactly what you have told us here. That may light a firecracker under his posterier and get him moving.

              Good luck to you!
              "To go bravely forward is to invite a miracle."

              "Worry is the darkroom where negatives are formed."

              Comment


              • #8
                Please note that there is a filing fee for filing a Motion for Relief from the Automatic Stay. I believe it's $150 in most locales. Also, be aware of local procedures and using negative noticing if allowed.
                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


                • #9
                  Originally posted by exhubsucks View Post
                  He listed me as a codebtor. And I was notified by letter from his lawyer.
                  Do I need to go to the creditors meeting?
                  By all means go. AND after your departing in divorce, if he used your name as comaker, he could also be guilty of fraud. That would possibly be a criminal action. 'Hub
                  If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

                  Comment


                  • #10
                    I am going to disagree, I don't think you need to go to the 341. There is no point to do so. The 341 exists only to allow creditors to ask the debtor questions. It is not an opportunity to present a case or do anything else. From the Trustees perspective, this is between you and your EX, there is nothing the trustee would do. f you really want to determine your rights, you should go see a lawyer. But based on what you have described so far, there is nothing you need to do. You COULD file a Motion to Lift Stay so you can have your Family Court Contempt hearing sooner rather than later, OR do nothing, wait for his case to discharged, and then refile your contempt motion in Family Court.

                    ACH, I think what she means by being listed as a co-debtor is that the ex put the OP as a co debtor on the petition, which sounds like is accurate.

                    Comment


                    • #11
                      I need to get the motion to lift the stay before the bankruptcy is discharged because although he will not be able to discharge the Student Loans he will be able to discharge the credit card and I will be held liable for that debt.

                      When he filed the motion to say, he referenced the Contempt charge even though I am not a creditor. How can he stay something that is not an attempt to collect a debit? It's a contempt charge in family court.

                      Does anyone know all the forms I need to file the Motion to lift stay?
                      http://www.mow.uscourts.gov/forms.html#bankruptcy

                      Do I also need "For Notice Under 342(b) (go to federal forms website below and locate forms B201A and B201B)"?

                      Comment


                      • #12
                        Originally posted by exhubsucks View Post
                        I need to get the motion to lift the stay before the bankruptcy is discharged because although he will not be able to discharge the Student Loans he will be able to discharge the credit card and I will be held liable for that debt.

                        When he filed the motion to say, he referenced the Contempt charge even though I am not a creditor. How can he stay something that is not an attempt to collect a debit? It's a contempt charge in family court.

                        Does anyone know all the forms I need to file the Motion to lift stay?
                        http://www.mow.uscourts.gov/forms.html#bankruptcy

                        Do I also need "For Notice Under 342(b) (go to federal forms website below and locate forms B201A and B201B)"?
                        You are still missing a point here...

                        Your EX's BK only discharges his liability to the bank, his BK will NOT discharge his obligation to pay you for that debt. The Motion to Lift Stay will not change that fact. If the settlement agreement states that your Ex is responsible for Y debt, the BK does not change that fact. All the BK does is affect your EX's legal responsibility to the underlying bank. If the debt in question was a joint debt prior to the divorce, you are liable for that debt regardless. Even today, you are liable to the bank for that debt. All the divorce decree did is assign responsibility for that debt as part of a division of assets and liabilities. The divorce decree does NOT alter your legal responsibility to the underlying debt.

                        Go at least consult with an attorney, you might find one that can do this on the cheap. You are freaking out over nothing. You can file the Lift Stay motion now, and get the contempt hearing sooner, or you can save yourself $150 and the hassle of trying to figure out how to do the Lift Stay motion and wait until his case is discharged at which point the stay is lifted automatically. However, that is a decision you should make in consultation with an attorney.

                        Comment


                        • #13
                          I could be wrong and someone correct me if I am however something else to be aware of is if had filed ch 13 and if indeed you have a property settlement that is dischargable. i.e. if he was trying to get rid of his liablilty to you and the bank for the cc debt he should have filed a 13. Debts under 523(a)15 ARE dischargable in a 13 just not a 7.

                          Comment


                          • #14
                            Originally posted by wanuvas View Post
                            I could be wrong and someone correct me if I am however something else to be aware of is if had filed ch 13 and if indeed you have a property settlement that is dischargable. i.e. if he was trying to get rid of his liablilty to you and the bank for the cc debt he should have filed a 13. Debts under 523(a)15 ARE dischargable in a 13 just not a 7.
                            That is true, but if you read the first post, the exhusband in this thread filed chapter 7.

                            Comment


                            • #15
                              I did HHM... I was merely pointing out the ex husband chose the wrong tool if the primary goal was to get rid of all their debts under the decree based on the author's description of their decree. A ch 7 never discharsges the debt to the ex but a 13 can in some instances where there is a property settlement. At least that's my understanding.

                              Now getting a divorce decree written in such a way to make it an airtight DSO rather than a property settlement requires some careful wording.

                              Comment

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