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Ch7 and FIA (bank of america) filed an AP!!!

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  • Ch7 and FIA (bank of america) filed an AP!!!

    Two close friends of mine, did their BK7, pro se. 1 day before the discharge some jerkwad attorney 500 miles away filed an AP in our district. (he is in OH, we are in MD). He alleged fraud, blah, blah, blah. Basically it was 7 months since the usage of the card, and he said it was fraud because of a cash advance they took out for a new HVAC system in April (and they filed in Sept), and then about $6000 in food, gas and auto repair charges as clearly indicated on the statements.

    In any case, he is not admitted to the Maryland bar, BUT he is admitted to the federal bar in Ohio, so what are the chances he will actually travel the 500 miles to MD to prosecute the case). She already filed a MTD and counterclaim against BOA for BK stay violations and an AP in a core proceeding too.

    They want $18k (only 13k was charged from Jan to April) and payments were made (only a few) afterwards then stopped.

    So anyways, the pre-trial conf is 3/13, what exactly happens at a pre-trial conference in a BK AP? She can prove the charges to the judge were for "normal" household usage (gas, auto repair, food, etc), there is only one questionable charge for a computer at Best Buy for $2000, which they are willing to pay.

  • #2
    This doesn't sound good. 7 months before filing, a cash advance for a new hvac system? $6k charges for food, gas, auto repair? The attorney sees something that is walking like a duck, quacking like a duck, and looking like a duck.

    I would say that your "friends" have problems that is going to cost them some $$$$$$$$.
    All information contained in this post is for informational and amusement purposes only.
    Bankruptcy is a process, not an event.......

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    • #3
      True but the cash advance look back is 90 days. The charge activity look back is 6 months. The BK probably was bad timing, but the wife wanted to do it. Seriously though, why would an attorney not even on the bar in this state try to prosecute the case unless he intended to travel (which is doubtful). From what I hear, normal expenses are ok. The husband is a contractor and drives 100 miles each way to work in a 1990 van so $1600/mo for fuel is not out of the norm, and expenses to fix their cars were around $4k. They lived within their means for as long as they could.

      The funny thing is another set of friends intentionally ran up their cards for 3x what this poor couple is going through (although they waited a year and a half to file) with the same creditors and bk7'd and got a discharge even though they were over the median by 20k. Didn't seem quite fair.
      Last edited by mysticspirit25; 01-13-2011, 04:27 PM.

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      • #4
        Ugh! I need to sign off before I pop off on what I don't think is fair!
        Filed Ch 7 Pro Se 11-18-2010 341 Meeting 12-16-2010 Discharged 2-15-2011
        New Job 7-2011

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        • #5
          I agree, the ones who intentionally ran their cards up should have the AP. Not the other couple just scraping by.

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          • #6
            Spending $2000 on a computer when you are living on credit cards is not living within your means.

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            • #7
              I agree with you and they are willing to pay for that charge. The computer, while most would think is a luxury purchase was for the husband to upgrade so he could use the new CAD programs for his job in construction/building. Nonetheless, they are willing pay that back. In any case, the question was what happens at a pre-trial conference?

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              • #8
                Hi all, Hi mystic,

                Pre-trial conferences are by their nature designed to either prevent trials or make them go as smoothly as possible.

                Go here for what can be in the p.t.conf. http://www.rib.uscourts.gov/Docs/Apf...lchecklist.PDF

                Since your friends are pro-se, tell them that for an AP they will need to know the rules and procedures for a federal court trial....that is a pretty daunting task for a pro-se filer. Tell them to go here and go to part VII http://www.law.cornell.edu/rules/frbp/

                Each individual court can have their own rules too, go to the court website and find the "local rules"


                so what are the chances he will actually travel the 500 miles to MD to prosecute the case ....who knows...might depend on whether he is a "hired gun" or company lawyer. If he's a company lawyer, they are spending some $$ which means they are probably serious. A "hired gun" is not on the payroll but get paid hourly on cases the company dumps on him, they get paid to file motions, appear in court, travel to another state to appear in court....but usually these guys are local, at least more local than Ohio...

                Whatever happens, I wish your friend the best...would be nice to see the "little guy" win one..

                Tom in Colo

                ps: and an AP in a core proceeding too. ....I seem to be missing the boat here...what is this about?
                Ch7 filed 5/12/2010.....341 meeting 6/30/2010....report of no distribution 8/15/2010.....discharged 10/01/2010.....closed 11/09/2010

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                • #9
                  Well....not sure if it is a hired gun, but they definately are not BOA legal counsel. They are only admitted in Ohio and are in Akron, Weinstein & Riley P.S. is the name of the firm, and the atty is in Ohio only. When I said "and an AP in a core proceeding", what I meant is my friends filed a motion to dismiss, and motion to compel based on the underlying arbitration clause in the cardmember agreement which says both sides give up their right to go to court and the arbitration provision survives bankruptcy. So that is what the MTC/MTD is for. They also filed an original AP against BOA for FCRA violations (reporting the status of the account incorrectly), and for telephoning them to collect a debt while under the automatic stay. So my buddy and wife are in essence suing BOA in the BK court for $50,000. They only filed this as a tactical move, but as with all legal moves, I guess it's a game of chicken. They will have to hire local counsel to fight the AP as far as I know (BOA that is).

                  We shall see. The only other experience I have with advice on an AP is when my MIL filed pro se in NC, and Chase filed an AP b/c she wrote a cash advance check to her husband for 14k 30 days before the BK. Their lawyer filed based on fraud, and Chase settled for $2000.

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                  • #10
                    This sure sounds like questionable charges to me. But thinking something is questionable and proving fraud are different matters. This is pretty close though. The lookback period is when cash advances are AUTOMATICALLY deemed fraudulent. If the lookback period is 70 days, and you have a large advance 80 days back, it is not automatically determined to be fraudulent, but the creditor can still file an AP complaint. In this case I'd say the creditor might have a case. Especially if the usage is most or all of the credit available, which makes it look like a spending spree to use up all the credit.

                    Bank of America is known to settle for very little, as low as 10-15% in a normal delinquency. I am not sure what they do in bankruptcy. I would not want to fight it with this set of facts.

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