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Creditor objection to exemption Incorrectly Filed

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  • Creditor objection to exemption Incorrectly Filed

    My brother is a creditor (he received all of my parent's inheritance & went after me for an old loan to my father). I do not believe he has enough money to file and get a lawyer to go after me for an adversary claim (& my lawyer & I feel he would lose -- but that it will be expensive and move my discharge date out).

    So my brother filed an Objection to an Exemption on me 1 day before deadline (the exemption is for a wrongful death lawsuit from my father that all the children were able to sign on, but not settled yet -- & I used my wildcard exemption). I talked to my lawyer & he said it was filed wrong in so many ways -- so we're waiting out a little time to see if the Trustee throws it out, but I am stressing. It will cost me $750 to fight it (but my lawyer feels we will be fine. He filed without a lawyer, filed an incorrect form, did not notify myself or my lawyer, and did not send a list of hearing dates (there may be more errors I am not sure about). I have read that even creditors should have a lawyer when filing a motion because they might not fill out forms properly, but I can't find anywhere how much time a Trustee in California usually takes to throw out an incorrectly filed motion. Has anyone else had something similar.

  • #2
    The trustee doesn't "throw out" anything. A judge can overrule or sustain an objection. Procedures in responding to a Motion/Objection vary from district to district and you would need to check your local rules.

    In general, assuming an Objection to Claimed Exemption was filed, it should have been served by regular mail along with a Notice telling you when your response was due. If no notice was sent and there is no local rule relating to proper notice, my belief is that a response is due within 14 days (or is it 21 days I can't remember and can't quickly find the Rule) of the date of service. For the actual objection to have been timely, it needed to be filed no later than 30 days after your 341 meeting (Rule 4002(b), Fed. R. Bankr. P.).

    Regardless of local rules or the general rule for the filing of a response, if the Movant/Objecting Party fails to follow through on what was filed, the Motion/Objection will most likely sit in limbo as the court is unlikely to act upon it without further request of the parties.

    Please verify with your attorney the correct procedures for such motions/objections and have him/her respond accordingly to protect your right to claim the exemption.

    Des.

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