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Will I lose?

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  • Will I lose?

    I'm in the middle of an AP for a business debt. My lawyer did not respond to their request for admissions and discovery in a timely manner. Now their attorney has filed a motion for summary judgment. There is a hearing scheduled and if we don't respond by May 20th they request that the court grant the motion without a hearing. Does anyone have any experience with this? Should I have received a copy of the original request for admissions from the plaintiff's attorney or was it enough that it was sent to my attorney (who did not notify me until today)?

  • #2
    I am not an attorney and by no means anywhere near an expert, but I believe that you have to be personally served, as well as your attorney receiving the request for submissions and discovery. Did your attorney send you a copy of the request? Are you listed on the service list? If you were not properly served, I don't think the request for summary judgment is valid. Did you receive the motion for summary judgment or was it only your attorney?

    Since your attorney has clearly dropped the ball here, can you consult with another attorney who is familiar with business bk's/adversarial proceedings?

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    • #3
      Originally posted by AbbeyA View Post
      I am not an attorney and by no means anywhere near an expert, but I believe that you have to be personally served, as well as your attorney receiving the request for submissions and discovery. Did your attorney send you a copy of the request? Are you listed on the service list? If you were not properly served, I don't think the request for summary judgment is valid. Did you receive the motion for summary judgment or was it only your attorney?

      Since your attorney has clearly dropped the ball here, can you consult with another attorney who is familiar with business bk's/adversarial proceedings?
      My attorney just contacted me today even though he was served at the beginning of April! He did not mention the deadline. I went onto Pacer and discovered that opposing counsel had filed for summary judgment today. I was never served-just my attorney. I am very upset! Finding another attorney may be difficult. My bankruptcy attorney referred me to my current attorney because my bankruptcy attorney doesn't handle Adversary Procedures. My bankruptcy was closed last November. I just need to get through this AP.

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      • #4
        An Adversary Proceeding is a mini-lawsuit within, but not really connected to your Bankruptcy. You have been Discharged, and that will not change. The only thing that MAY change (and is in dispute with this AP, is one particular debt.)

        Typically, an AP is a different matter from your original BK case, and the attorney MAY choose to handle it, but you will then sign a different contract for it. Or, as in your case, you may be referred to a different attorney.

        I am surprised that this AP did not appear at some time when your BK was still open and before Discharge. If it happened after Discharge, and especially AFTER the case was Closed, you may well have grounds for 'Untimely Protest', or something similar to that. Usually, a Creditor has 60 Days to Object to the discharge of their debt. If it is an Asset Case, the trustee can ask for an extension to that period of time. Still, the Creditor filing an AP has to get it filed within that time-frame.

        Good wishes!!!~~~
        "To go bravely forward is to invite a miracle."

        "Worry is the darkroom where negatives are formed."

        Comment


        • #5
          Originally posted by AngelinaCat View Post
          An Adversary Proceeding is a mini-lawsuit within, but not really connected to your Bankruptcy. You have been Discharged, and that will not change. The only thing that MAY change (and is in dispute with this AP, is one particular debt.)

          Typically, an AP is a different matter from your original BK case, and the attorney MAY choose to handle it, but you will then sign a different contract for it. Or, as in your case, you may be referred to a different attorney.

          I am surprised that this AP did not appear at some time when your BK was still open and before Discharge. If it happened after Discharge, and especially AFTER the case was Closed, you may well have grounds for 'Untimely Protest', or something similar to that. Usually, a Creditor has 60 Days to Object to the discharge of their debt. If it is an Asset Case, the trustee can ask for an extension to that period of time. Still, the Creditor filing an AP has to get it filed within that time-frame.

          Good wishes!!!~~~
          I wasn't clear. This AP was started while my bankruptcy was still open. I found out today that the opposing attorney had incorrectly calculated the number of days and so he is withdrawing his motion for summary dismisal! We will still have a hearing and I will keep you posted on the outcome.

          Comment


          • #6
            Update: I settled this for $5000. I was going to fight it but my attorney said it would end up costing me at least $10,000 in attorney's fees. They initially didn't want to settle for less than $15,000 but then I lost my job. I guess they decided that since their case was very weak at best, and there wasn't any money for them to get now that I've lost my job, they would settle. I'm glad that it is finally over but I'm still kind of ticked that I have to pay thousands to settle when I didn't do anything wrong.

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