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any AP success stories?

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  • any AP success stories?

    if you have any specific stories where you prevailed in an AP, id be interested in hearing them.

    and more broadly, does anyone know what the success rate is of a debtor prevailing?

    it would seem to me that a creditor would have to feel pretty confident at winning before even objecting to a discharge, which might mean the success rate for debtors is low. is that an incorrect assumption?

  • #2
    Creditor AP's are probably filed in less than 5% of BK's. (I bet the number is even smaller than that). Of those that are actually filed, less than 10% ever go as far as a trial (again, the number is probably even smaller).

    Based on what you have previously posted, you must be obsessing again.

    With a little planning and the right attorney, I really don't think you have too much to worry about.

    Comment


    • #3
      Maybe they should rename this forum BK Anonymous for Obsessive Filers. Or give us our own section. Yeah I am obsessing again, too, but the issues have already been addressed in other threads. I just need to get my head together and get on it.

      Comment


      • #4
        Originally posted by HHM View Post
        Creditor AP's are probably filed in less than 5% of BK's. (I bet the number is even smaller than that). Of those that are actually filed, less than 10% ever go as far as a trial (again, the number is probably even smaller).

        Based on what you have previously posted, you must be obsessing again.

        With a little planning and the right attorney, I really don't think you have too much to worry about.
        not really obsessing, just interested. i still probably wont file for at least a few months.
        so perhaps just a case of idle hands....

        but what planning can be done and what, specifically, can i or an attorney do to prevent an AP? or are you referring to things that can be done after the objection is raised and the AP is initiated?

        btw, you still didnt really answer my OP. i get that APs arent an every day occurrence. and i get that some are negotiated/settled/resolved before the trial. im talking about those that go the distance. what's the debtor success rate? (and if anyone has any success stories - and what their defense was, id be curious to hear those).

        have you gone the distance on these HHM, and if so, what is your success rate?

        Comment


        • #5
          In my experience they pretty much NEVER go the distance. At some point one or both sides look at their chances of winning and decide its not worth the risk. In student loan cases the debtors are doing fairly well, but in ap cases where the creditor files the ap they typically do not do so unless they have something rock hard so their success is a bit higher.

          HHm is right in that the numbers are VERY low. Lower than he estimates (as he stated). They almost never go to trial so putting a statistical success rate number would be relative. If one party is willing to go to trial then they obviously have a smoking gun and usually the other party wants no part of that. If they do go to trial its usually paving new ground on an issue that hasnt really been clearly defined by bankruptcy law or case law. I would estimate that 99%+ are settled before trial. With that said its hard to define "success" when the account is settled.

          Comment


          • #6
            As Brazzy points out...

            These cases hardly ever go the distance, when they do, it is usually a stubborn pro se debtor who loses, or there is some question of fact or law that is up in the air and not settled. If the creditor has a slam dunk case, the debtor attorney will usually settle (because settling is the better deal), if the debtor has a good case, or at least a tacit defense, usually the creditor backs of or some token settlement is reached.

            Your situation, based on what you described does not appear to fall in the "obvious" category.
            Last edited by HHM; 06-10-2010, 09:05 PM.

            Comment


            • #7
              Originally posted by HHM View Post
              Creditor AP's are probably filed in less than 5% of BK's. (I bet the number is even smaller than that). Of those that are actually filed, less than 10% ever go as far as a trial (again, the number is probably even smaller).

              Based on what you have previously posted, you must be obsessing again.

              With a little planning and the right attorney, I really don't think you have too much to worry about.

              again, getting back to this point - what planning/strategy can be done? what is the "right" attorney going to do for me?

              can an attorney prevent a creditor objection? and if so, what strategies does that involve?

              since, most AP cases arent going the distance, what is the right attorney going to be doing for me between the time of objection and the resolution of the case to make it so that i dont have too much to worry about - which to me means coming out of bankruptcy fully discharged.

              and if these cases are settled (because i dont think i would have that strong of defense to withstand an objection and an AP trial) why would it matter if i am settling for $5,000 or $20,000 if i dont have any money in the first place?

              and why would an attorney care either way (which might be why YOU dont have much to worry about hhm)? they arent paying the settlement amount. they bare no burden for the manner in which its settled - just that it is so they can move on to the next case.

              can anyone enlighten me further on these points?

              Comment


              • #8
                If a creditor has a balls out win on their hands there isnt much you can do to avoid it. All they can do is pull some case law to show how some half backwards judge made a dumbass pro debtor ruling in a moderately similar case in order to try to get leverage to help settle at a lower amount. Pretty much every district has a pro debtor judge who the creditors dont really want to mess with. Better to settle it than risk having him try the case. With that said the creditors are very patient in their settlements. They are looking for a judgment to an amount to not be included in BK. They know you came into the ordeal with no assets, but they have no problem pushing the issue to make sure they are there when you do have some cash, or a job, or some property.

                The creditors typically wont push the issue unless they have you dead to rights. If they have you dead to rights they know you did something wrong. If they know you did something wrong, then odds are you know you did something wrong.

                When I say push the issue I mean to threaten to go to trial. I'm not talking about filing the complaint, a 2004 exam, filing a motion to extend a deadline, or investigating a bit. Thats no big deal. Its not easy to mount an AP to object to the discharge. Extra time and info may be needed so dont be alarmed by the 2004, or an extensions unless you know you F'ed up.

                Comment


                • #9
                  I hav not filed yet, our attorney is still debating between 13 and 7. My problems stemsfrom a credit line that the bank claimed default on because of a collateral issue.

                  We were working on a large proposal with a huge client that was supposed to be finalized "any time". We were to be paid with mostly inventory, which we listed on our finance statements. Our client was then suddenly bought by an even larger company, and our deal never materialized with the new company. All the inventory we had on our inventory reports to the bank esentailly evaporated when the new company didn't want to work with us.

                  The bank is claiming that I misrepsented the inventory to them. I am sure they will file an AP becuase of it. However, we did not get our credit line with this information. We had the line previous to all of this. Essentailly we had bought invnetory with it as we were supposed to, but when it was sold, the money got used for operating expense instead of paying down the line. We were not that concerned at the time, because we thought we were getting inventory from our client, which is what we showed on the financials.

                  My attorney says that they would need to show fraud in the induncement, which I can't see how they can. The attorney also mentions that the burden of proof is on them to show that I took that money without any intention of repaying it. Again, not the case. In fact, our loan was current at the time I informed the bank of the inventory issue. Also, I had stopped personally taking funds from the business (regular payroll) in order to make sure the bank was paid. Finally, I offered the bank a payment plan on my own that gave them all of my current monthly income until the debt was paid. They refused and sued me. Which leaves me where I am today.


                  Just trying to get some opinons on how hard will it be for my bank to win their AP in this type of situation. I think I can show we made every effort to pay them, we did not get the loan in the first place with fraudulent information, etc. This will be the second largest loss in this small banks history, so I do not imagine them going quietly. Any thought, ideas , or suggestions?

                  Comment

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