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AP notice received today ... scared ... stressed ... long story thanks for helping

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  • #46
    Originally posted by scbendel View Post
    If my answer is convincing enough, is there any way the process will stop at that point?
    No. Once you file the Answer the Judge's procedures take over and a hearing will be held at some point. You will be trying the case in bankruptcy court either at a full trial or on a Motion for Summary Judgment (like what happened in the case I referred you to) but the focus will be on whether or not the conduct alleged rises to a level that would require it to be non-dischargeable. Of course, during the process, you can open the lines of communication and try to settle.

    Des.

    Comment


    • #47
      Hi Des, you are correct...this case is going to be VERY helpful in helping to build my arguments against their claim of "fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny".

      Basically from what I'm gathering, I was not acting in a fiduciary capacity, there was no express trust, and I did not embezzle or commit larceny. So it's a long road, and I hope that I can fight this.
      Happily accepting help and advice from any and all helpers

      Comment


      • #48
        I have nothing to add just wanted you to know we are with you here. Listen to Des and he is one awesome lawyer. Make sure you find one just as good if possible as he is do not do this by yourself.

        Pam

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        • #49
          I am about 99% sure I can't afford a lawyer...hell, I just filed chapter 7. Lol.
          Happily accepting help and advice from any and all helpers

          Comment


          • #50
            Originally posted by scbendel View Post
            I am about 99% sure I can't afford a lawyer...hell, I just filed chapter 7. Lol.
            But. . . at least talk to a few. Consultations are usually free and you can get valuable info.

            Des.

            Comment


            • #51
              So, as I posted before, I purchased a car this past weekend for my family. I financed it at a rather high rate, but I expected that...and the payments are way more manageable than the vehicle that I surrendered to the finance company. I got a call today, for what I was expecting to be the normal "interview" from the finance company, verifying job info, etc. they said they might not be able to fund the loan due to the AP. I explained the situation to the finance manager at the dealership and that it had nothing to do with a vehicle loan, and that it wouldn't affect my overall discharge of debt...only the one in question (lawsuit). That is correct, right? The AP, from what I understand, ONLY affects the discharge of this ONE debt, and the rest will discharge as they're supposed to, correct? They're supposed to call me back tomorrow with a decision...is there anything I can tell them to persuade them to fund my loan? This would be another nail in the coffin and leave my family without a vehicle...this cannot happen. Any advice, please? Sigh.
              Happily accepting help and advice from any and all helpers

              Comment


              • #52
                So long as the complaint does not ask for the complete denial of the dishcarge under 11 USC 727 your discharge will be entered by the Clerk of the Court in due course (assuming you filed the financial management/debtor education certificate). However, I am not aware of any normal lender that will even consider a loan until the discharge has been entered therefore your attempt to finance a vehicle, regardless of the AP, appears to be premature.

                Des.

                Comment


                • #53
                  The lender said it was fine as long as it was after my 341 meeting. I've had two other loans paid in full with this lender...so I'm hoping that will help. Is there any way they can even be asking for complete denial of discharge?
                  Happily accepting help and advice from any and all helpers

                  Comment


                  • #54
                    Originally posted by scbendel View Post
                    The lender said it was fine as long as it was after my 341 meeting. I've had two other loans paid in full with this lender...so I'm hoping that will help. Is there any way they can even be asking for complete denial of discharge?
                    They can ask for anything. Whether they have a valid basis to get it is another question. Read the complaint and make sure you understand exactly what they are asking for.
                    LadyInTheRed is in the black!
                    Filed Chap 13 April 2010. Discharged May 2015.
                    $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

                    Comment


                    • #55
                      Good news, somewhat. I was able to explain the AP to the finance company today, and they approved my loan for the new vehicle. So tomorrow I'm surrendering my other vehicle...still no complaint in the mail. If I don't get it in the mail tomorrow I'm going to sign up for PACER and just download it. Will keep you posted on what the complaint says as soon as I get it.
                      Happily accepting help and advice from any and all helpers

                      Comment


                      • #56
                        Congratulations on the loan! Have you made the appointments for the consults yet?
                        "To go bravely forward is to invite a miracle."

                        "Worry is the darkroom where negatives are formed."

                        Comment


                        • #57
                          Not yet. I've called both numbers and gotten details and locations, but with 3 kids and the inability to take days off of work, I'm tied down to telephonic consultations, which neither of them will do. I've set aside some funds for PACER, and tomorrow I'm downloading the complaint in its' entirety. I was able to read a lot of it, and they're basically rehashing the arbitration, which was hell. I gotta say, I'd be lying if i said I wasn't depressed and consumed with this. These lawyers ruined almost a year of my life, and now they're at it again. Looking at the hardcore facts of the case, we should win, even without being able to afford an attorney. But I can't help wondering how the judge is going to interpret this, and how bad the opposing attorneys are going to spin this to their advantage. Sigh.
                          Happily accepting help and advice from any and all helpers

                          Comment


                          • #58
                            Okay so I downloaded the complaint today. It's almost word for word what Des says, exact sections and everything. Basically their supporting "complaint" to the fraud or defalcation is a copy of the check written to us, them, and our 3rd party adjuster (who told us what to do, and didn't contest our depositing without his signature), and a copy of the "contract" we signed when they performed services at our house. They conveniently leave out the fact that we paid someone else to do work, and then paid that second company even more for additional work, and that we paid $3k out of our own pockets for extra hotel time. The complaint is PDF of course, but it's not one I can copy-paste text out of so I'd like to send it to one of the lawyers on forum as an attachment to see if there's anything that stands out. If they are ok with that, of course. I still can't PM. Weird, right?

                            Anyhow, I'm kinda feeling positive about our chances, but now I have to dig and find the arbitration summary, all they sent is a copy of the judgment; which doesn't say anything about the reasoning for the award to the plaintiff. Thoughts anyone, please?

                            Thank you all again.
                            Happily accepting help and advice from any and all helpers

                            Comment


                            • #59
                              I've got twenty days to submit out answer...so there's a little time, but I want to get it done as quickly (yet thoroughly convincing) as possible.
                              Happily accepting help and advice from any and all helpers

                              Comment


                              • #60
                                Originally posted by scbendel View Post
                                I've got twenty days to submit out answer...so there's a little time, but I want to get it done as quickly (yet thoroughly convincing) as possible.
                                I can't private message you at all - check your settings! There also is a minimum number of posts required to avoid spamming ads in PMs but the number seems to vary (to keep it trickier!). Maybe you could answer some of the polls and movie and book threads to bump your post count if it isn't something in your settings.
                                ~~ Filed Over Median Income Chapter 7: 12/17/2010 ~~ 341 Held: 1/12/2011 ~~ Discharged: 03/16/2011 ~~
                                Not an attorney - just an opinionated woman.

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