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advessary proceeding & 341 meeting questions from a creditor

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  • advessary proceeding & 341 meeting questions from a creditor

    I live in Georgia. There was a roofer that managed to bilk over $150,000 in cash (mainly up front insurance money) from 36 people in 4 months. Now he is declaring bankruptcy. I have read up on what I can do about my debt listed on his bankruptcy. My goal is to file an advessary proceeding to claim that my debt not be listed as dischargable under the grounds of fraud.

    Here are my questions:

    1) I filed a pro se advessary proceeding at the courthouse and they said that I need to pay a $250 filing fee. There are several of us that are filing to protest the bankruptcy. Can all of us file under the same advessary proceeding and pay the fee just once?

    2) The original 341 meeting of the creditors was reset because the debtor was on holiday in Europe. Then at the second meeting he did not show up either and he claimed that his truck broke down on the highway driving to the court. All the creditors objected to having the meeting reset for a third time and the debtor's attorney stated that he would not request another reset. Well it has been reset for a 3rd time. Is there any way to protest him getting a 3rd meeting date becuase I was under the impression that if he didn't show up 2 times then the bankruptcy was dismissed.

    Any assistance would be appreciated. We are going to file our advessary proceeding tomorrow and the final 341 meeting is Friday of this week.

    Jennifer

  • #2
    I believe in all Civil Suits (an AP is a Civil Suit) that the Plaintiffs as well as the Defendants can be multiple. That is no problem. You are not large enough for a class action but many Plaintiffs can sue.

    About the lengthening of time for the 341's, that is strictly up to the Judge/Trustee. I would say at this time he has no chance for a fourth. There is no time limit on this that I know of, but many times it will pizz a Judge off not showing up for a hearing. This does not set a good light upon him. Also when he shows, you will have a time to voice your objections. This will not go very far, but will be on the transcription of the hearing. Ask him how his vacation out of the Country was. Apparently he could afford it on your money. '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.

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    • #3
      He is filing Chapter 7. There were 36 people that he took primarily the upfront insurance money for a new roof and then never did the work. For a few people he actually did the work and took all the insurance money and then did not pay their supplier who put a lien on the home that the homeowner now has to pay. There are at least 2 cases in which he took the upfront money, did not do the work and then called the insurance company and claimed he finished. In one case the insurance company sent a check to him and he cashed it by forging the homeowner's signature and in the other case the check was sent to the homeowner who called his insurance company to see why they sent the check and they told him that they were told the work was done.

      He took in over $150,000 in cash in the first four months of this year with no corresponding expense since he did not do the work. In his filing he claims that his company made only $120,000 in the entire calendar year of 2010. This is clearly a case of fraud and we want to fight him being able to dismiss all of our debts in his bankruptcy.

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      • #4
        Originally posted by ratracegrad View Post
        He is filing Chapter 7. There were 36 people that he took primarily the upfront insurance money for a new roof and then never did the work. For a few people he actually did the work and took all the insurance money and then did not pay their supplier who put a lien on the home that the homeowner now has to pay. There are at least 2 cases in which he took the upfront money, did not do the work and then called the insurance company and claimed he finished. In one case the insurance company sent a check to him and he cashed it by forging the homeowner's signature and in the other case the check was sent to the homeowner who called his insurance company to see why they sent the check and they told him that they were told the work was done.

        He took in over $150,000 in cash in the first four months of this year with no corresponding expense since he did not do the work. In his filing he claims that his company made only $120,000 in the entire calendar year of 2010. This is clearly a case of fraud and we want to fight him being able to dismiss all of our debts in his bankruptcy.
        I believe you are dealing with the wrong entity, here. You need to talk to the States Attorney. He has committed a crime, not a tort. BK does not let him off of a Criminal offense. Get on the ball with that one. It just may ruin his day. '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.

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        • #5
          Make sure that all of you have your paperwork with what the roofer was hired to do, and what the homeowners approved being done. Oral agreements are difficult to prove.

          Make sure his signature is on the paperwork of any estimates, bills of lading, etc. I also hope that the signature is legible. So many scam artists now 'write' only a line with a loop or two, and call that a signature. I used to be a notary, and I insisted on a legible signature for my own protection.

          Also to add to the above: if any of this is on this person's letterhead, so much the better.
          Last edited by AngelinaCat; 08-17-2011, 09:45 PM. Reason: spelling and added a sentance begininng with 'Oral"
          "To go bravely forward is to invite a miracle."

          "Worry is the darkroom where negatives are formed."

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          • #6
            I filed a pro se advessary proceeding at the courthouse and they said that I need to pay a $250 filing fee. There are several of us that are filing to protest the bankruptcy. Can all of us file under the same advessary proceeding and pay the fee just once?
            Interesting question. In theory I see no reason why you cannot have multiple plaintiffs even though each plaintiff’s cause of action arises out of different facts. In practice however, I would advise against it unless you all join in and hire a well qualified litigator. The problem is that someone needs to draft a complaint that properly and artfully describes each cause of action for each plaintiff in the correct “count” and correctly asks for relief for each plaintiff. If the complaint is not sufficient in its allegations it can be dismissed for failure to state a cause of action for which relief can be granted. It is hard enough to draft a good complaint when there is one plaintiff. I can’t imagine the difficulty in drafting one for multiple plaintiffs when the facts surrounding each are different.

            The original 341 meeting of the creditors was reset. . .Then at the second meeting he did not show up either. . . All the creditors objected to having the meeting reset for a third time. . . Well it has been reset for a 3rd time. Is there any way to protest him getting a 3rd meeting date. .
            Not really. I will assume this person filed a Chapter 7. The Trustee may want to keep the case alive because he/she thinks there may be some asset to liquidate. Further, since the debtor has counsel the Trustee is going to give a little but, I am sure his/her patience will wear thin if the debtor fails to show up a 3rd time.

            Des.

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            • #7
              My gosh. When I started writing my response there were none posted. With the added info, Hub is correct. You and those similarly situated need to talk to the AG. It sounds like you have a good case for civil fraud AND a potential for the State to institute a criminal investigation for criminal fraud.

              Also, if the debtor did scam the insurance companies, you can be you and your group will not be the only ones looking to have the claims determined to be non-dischargeable.

              Des.

              Comment


              • #8
                Originally posted by despritfreya View Post
                Interesting question. In theory I see no reason why you cannot have multiple plaintiffs even though each plaintiff’s cause of action arises out of different facts. In practice however, I would advise against it unless you all join in and hire a well qualified litigator. The problem is that someone needs to draft a complaint that properly and artfully describes each cause of action for each plaintiff in the correct “count” and correctly asks for relief for each plaintiff. If the complaint is not sufficient in its allegations it can be dismissed for failure to state a cause of action for which relief can be granted. It is hard enough to draft a good complaint when there is one plaintiff. I can’t imagine the difficulty in drafting one for multiple plaintiffs when the facts surrounding each are different.



                Not really. I will assume this person filed a Chapter 7. The Trustee may want to keep the case alive because he/she thinks there may be some asset to liquidate. Further, since the debtor has counsel the Trustee is going to give a little but, I am sure his/her patience will wear thin if the debtor fails to show up a 3rd time.

                Des.
                But Des, if these victims go to the State Attorney, the automatic stay will not stop that investigation or legal action as it is a criminal offense. If this guy took people to the tune of 150K, that is not small change. Once criminalized whatever the Court gives him as time, fines, or recovery cannot be discharged. I think the crook is manipulating a system to creep out of a crack. (Creep was not a pun). '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


                • #9
                  Originally posted by AngelinaCatHub View Post
                  But Des, if these victims go to the State Attorney, the automatic stay will not stop that investigation or legal action as it is a criminal offense. . .
                  This is absolutely correct but, there is both a criminal and civil side to this. The State may determine that it cannot prosecute and win. There is no private right to impose a criminal charge. Only the State can do that and, if the prosecutor determines there is not enough evidence then the State may decide not to proceed. Both avenues need to be worked on. Remember, OJ was found not guilty for murder (criminal) but was found liable for wrongful death (civil). The civil burden of proof is a much easier burden to meet.

                  Des.

                  Comment


                  • #10
                    Originally posted by despritfreya View Post
                    This is absolutely correct but, there is both a criminal and civil side to this. The State may determine that it cannot prosecute and win. There is no private right to impose a criminal charge. Only the State can do that and, if the prosecutor determines there is not enough evidence then the State may decide not to proceed. Both avenues need to be worked on. Remember, OJ was found not guilty for murder (criminal) but was found liable for wrongful death (civil). The civil burden of proof is a much easier burden to meet.
                    Des.
                    How well I know this with my enemy attempting to serially sue me as well as turn the feud towards criminal. He lost on both attempts but broke my bank literally. His Karma took him away in a most painful year long process called death. Nine years of hell with one person and his lunacy.

                    I think the OP and friends should at least attempt to make the complaint to the powers to be on a criminal aspect. Even if it is "too small a fish to fry", it would be on record that this was in process. As far as Civil suits, if or when the jerk files, the AP is their only chance since it can run with the bk and/or after the bk is discharged. My enemy also APed me but it was thrown back to Civil Court with stipulation. He never pursued then Karma. '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

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