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PLEASE HELP - Creditor's Rule 2004 Exam & Adversary Proceeding Filed!!

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  • PLEASE HELP - Creditor's Rule 2004 Exam & Adversary Proceeding Filed!!

    So, this is the saga that will never end.

    I posted here some weeks back about the bank that repossessed my car well after our Ch. 7 case was filed.

    I originally filed a motion to show cause and for sanctions against them pro se, as my attorney was "too busy" to help me at the time, and they would not return the vehicle. After that, my atty filed a slightly amended motion that joined the towing company.

    The judge scheduled a hearing in the case for Sept. 3, and today my atty notifies me that the bank wants to depose me tomorrow. I read the motion that she sent, and the bank requested an exam under Rule 2004 of the bankruptcy code.

    Everything I've read about Rule 2004 exams says that judges generally do not grant them if an adversary proceeding has been filed, but this one was granted. They can be fishing expeditions and prejudicial to the debtor, so formal discovery rules should apply.

    I'm really tired of my attorney. She seems only to want to take the easy way out. I brought this to her attention by email tonight, but I doubt she'll give me a suitable answer.

    I'm really considering firing her at this point. She seems to be making this worse, and allowing the creditor to violate my rights. Does anyone know how I can or if I should try to reverse this motion? What do I file? Objection? Motion to quash?

    Please help as the examination is scheduled for tomorrow afternoon.

    Thanks in advance.
    Filed Ch 7: 6/11/09
    341 Meeting: 7/21/09

  • #2
    well, i don't care what anybody says, NOBODY can give you less than a day's notice and expect you to just drop everything and show up at their whim. they can't just schedule something behind your back. how long did your lawyer know about this and not tell you? when was the motion for a 2004 filed?? did your lawyer file an objection to the motion?
    filed ch7 May 09
    341 june 09
    discharged, closed Aug 09


    • #3
      I have no idea how long she knew, but your question prompted me to go and check PACER and read the motions again really carefully. These motions are not even showing on PACER and the certificates of service have no dates. There's something strange going on here.

      No, my atty did not file an objection. She just told me to show up for a deposition at 3pm. She already agreed that I would do it. I sent her another email asking why she would agree to a Rule 2004 exam considering that there is an open AP, and that I won't be there unless she gives me some good answers.

      Funny thing is I didn't even want her help with this. She jumped back in after reading the complaint that I submitted against the bank on PACER. I think she saw $$$$$.
      Filed Ch 7: 6/11/09
      341 Meeting: 7/21/09


      • #4
        Okay first off Show Up. If you don't that might cause problems.

        I'd first remind them that there is an active AP in the case and that you understand that you cannot give testimony that might prejudice that case.
        May 31st, 2007: Petition Filed by my lawyer
        July 2nd, 2007: 341 Meeting Held
        September 4th, 2007: Discharged and Closed.


        • #5
          this is why i HATE lawyers. the bank's motion was NOT allowed by any judge. only by your own lawyer. and without so much as talking to you! at this point, it's not a court order at all, and my guess is that if this judge heard about the motion, he would not allow it. this is the same judge who got pissed at them last time and said he would not allow them to settle your AP, right?

          they most likely noticed that your lawyer didn't bother to write that AP, and smelled that she is not working hard enough for you. they figured they'll try to "win" their 2004 motion by asking her rather than risk being shouted at again by the judge.

          i don't know if not showing up would cause problems. i am thinking, maybe tell your lawyer that you can't make it - who the hell can with such short notice?!? - and tell her you want to ask that judge on sept. 3 whether you should show up or not. also remind her that you never agreed to this. my guess is, the bank knows you never agreed because she didn't even tell them she'll talk to her client before agreeing on your "behalf".

          this will result in one of two things: either the bank will file their motion for a 2004 with the court, or they won't even dare. if they do file the motion, it will go to the same judge, who seems to be more on your side than your own lawyer.

          i don't see much of a risk doing that - if they do file a motion and the judge allows it, then you will appear for a deposition.
          filed ch7 May 09
          341 june 09
          discharged, closed Aug 09


          • #6
            oh, is this lawyer going to charge you for "representing" you at the 2004? has she given you any instructions about what not to say? i bet the answer is no. does she have experience with 2004s?

            oh, and did they "date" their motion before or after the hearing on your AP? before or after they received a copy of your AP motion?
            filed ch7 May 09
            341 june 09
            discharged, closed Aug 09


            • #7
              daedalus, don't keep us in suspense! what happened?
              filed ch7 May 09
              341 june 09
              discharged, closed Aug 09


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