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Need Some Help Here...AD Proced Filed

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  • Need Some Help Here...AD Proced Filed

    Against my Chapter 7 on 12-21-09. I had my 1st meeting of the creditors on 8-23-09, so since my 60 days from that meeting is past and no objection until now, when I answer this complaint, can this be dismissed for failing to meet the 60 day filing deadlines?

    I am confused and worried. Please give me some input. It was a 727 filing that the 2nd property we owned, that they have a "constructive trust" in property and I was holding property in our name only. Trust instrument was never filed or executed, just an agreement of sorts, but lacking 50% of the interested parties signatures.

    Please some input here, I need some peace.

    Nervous in Oregon


  • #2
    If the Trust instrument was never filed or executed then it doesn't exist. And if its lacking half the interested parties signatures then I'd state that it was non binding.

    Did you file with a lawyer? You'll probably need one to fight an AP.

    What date did you file?
    I assume your not discharged/closed, but are you either?
    Was the creditor meeting continued, if so how many times?

    Normally as you say they only have 60 days to object but we'd need to know more as there are cases where you can file it after that depending on case and motions etc.
    May 31st, 2007: Petition Filed by my lawyer
    July 2nd, 2007: 341 Meeting Held
    September 4th, 2007: Discharged and Closed.


    • #3
      were there motions to extend the 60 days? if not, i don't see how they can file against you now.
      filed ch7 May 09
      341 june 09
      discharged, closed Aug 09


      • #4
        My filing date was 7-21-09. There were no motions to extend, and up to me finding this AP was filed yesterday everything was going as planned. I did file my BK with an attorney, we knew that this person was a problem and this was possible, but this patry did nothing.

        We had our 341 on 8-23-09, no objections. On my status page on pacer, it shows the timelines for objections expired, etc. My 6 months date is 1-24-10. My case was discharged on 11-26-09.
        Last edited by booboo; 12-27-2009, 09:53 AM. Reason: Content left out


        • #5
          Contact your attorney right away.

          You must respond.

          Number 1 defense - adversary proceeding filed too late. Should not be a problem at all - the case will be dismissed.

          Only potential hiccup - were they originally listed on your schedules? If they were, and the date has passed, then too bad for them. If they were not listed, then the times are extended automatically.


          • #6
            OK, let me try to give it in a nutshell to you for a better understanding.

            Back in 1992 my mother-in-law husband passed, she had been married to him for 24 years. The home they lived in was already paid for before they were married and the home was claimed by his children. She being 78 years old was faced to either buy the home for what the value was at the time they married and those proceeds going to his chilren, or take a life estate to live in the home until her death.

            Being that she did not have the funds to buy this home ($65K), cheap by Calif standards I had figured that if I was to buy the home and she make the payments from her SS, when she was to pass there would be a huge equity that the 3 children could split when the home was sold. A younger sibling moved into the home to also care for her. An agreement was signed by my Mo-In- Law with the estate to buy home from her husbands estate (children) and the home loan was finalized in my wifes and my name and Mom signed her rights away from this home in order to faciliate this. The only names on that title was my wife and I.

            In 2005 due to some serious medical reasons, we (wife and I) took out a 2nd to finance our debt's etc. In late 2006 my Mo-In-Law passed. The sibiling that was staying in the home refused to allow us to sell and filed a lawsuit in a Calif court for fraud, etc claiming that this home was in a trust and that were were not entitled to just "sell" and claimed this 2nd was done in fraud. It went to court and after several motions, etc the case was demurred. I might add that the payment on the 1st is only $386 a month, a 3 beedroom, 2 bath home in Palm Springs, oh yeah, a pool. Now you might understand why he is fighting this home being sold.

            A few months later he filed a petition to open a probate and again claimed the above and the judge refused at that point to assigned an administrator and ordered the parties to mediation to try to get this issued settled. We went to mediation and came to an agreement that he could buy the home for his preceived "share" and was given 30 days to apply for a loan and finance. Out of our (wifes) proceeds, the 2nd was to be paid off.

            The next day he failed to show to sign and after attempts to reach him, he said he was not going to do it and said he was getting an attorney. He had been doing this pro-se.

            It has been going back and forth within the probate court and he was finally given the status of Personal Rep for her estate even though he pilfered all belongings and no legal claim to home at this point. He still was refusing to make any credible offer for the home, he lives on SS disibility and has no means to buy this home, but continued to file motions etc to delay any possible sale and to cost us $$$$$ in attorney fees to try to work through this.

            Well things got worse for us and we filed BK, listed the homes and listed him for $$ he had claimed in the past for repairs. Soon after our BK he withdrew his petition with the Probate court to determine ownership of this home.

            His AP that was filed 12-21-09 was an objection to our discharge, fraud, elder abuse, larceny etc. The fraud and elder abuse issue is due to the 2nd claiming that we took advantage of mom while she was ill and that she had no knowledge of the 2nd as there was a "constructive trust" and that we had no right to take this out on the property.

            When we bought the home for her to live in, she signed her rights to the home away to us and no trust was set up to umbrella this home. The attorney that arranged this for us, is the same attorney who has been fighting us in Porbate and working pro-bono for him against us. The thing is, he has been and I am sure will continue to "ghost" him through this BK AP, and his basis for this "fraud and elder abuse" he claims that a document that was signed by my wife and I (don't remember doing this) stated the proceeds of the home when sold would be split ( 3 kids)33, 27 and 40%..the higher amount going to him for taking care of and living with mom. The only problem is that the document does not have moms signature, or the other sibilings signature on it agreeing to the same. The attorney claims that a "trust instrument" was not executed because of moms mental state and that she would not have been found competant and he could have been sued, but he had her signed her rights away to the home 2 weeks before that. We feel he is just trying to cover his basis for not completing a trust and his errors in the same.

            Now this AP for the 727 and the fraud issue and elder ablse and Larceny??

            Sorry for the rambling.......but some backgrouond.

            Last edited by booboo; 12-27-2009, 11:20 AM. Reason: Added Content


            • #7
              you say you listed him in your bk as a creditor. if you had his address correctly in your matrix or if you have other proof that he had notice of the bk, then this AP should be dismissed.

              in his filing, did he claim that he did not receive timely notice of your filing?

              i didn't understand the whole situation, but it sounds like this attorney is trying to represent both sides of one issue, a totally unethical thing to do.
              filed ch7 May 09
              341 june 09
              discharged, closed Aug 09


              • #8
                Agreed, not ethical at all. Yes, he got a timley notice and no prior request for extensions...

                I am sick over this for sure.



                • #9
                  Take it to your attorney, and have him file a motion to dismiss the AP on grounds that the AP was filed after the 60 day filing period, and cite the other courts previous rulings. State that there was no trust ever filed or executed on the estate. As such the AP is a frivolous waste of the courts time and should be dismissed, your lawyer should know what to type up. Sadly might cost you a bit more but would be worth it.
                  May 31st, 2007: Petition Filed by my lawyer
                  July 2nd, 2007: 341 Meeting Held
                  September 4th, 2007: Discharged and Closed.


                  • #10
                    also your lawyer could ask the court to order them to pay your attorney's fees for filing the motion to dismiss.

                    is your case not closed yet? and why do you mention the 6 month date? i don't think it is significant.
                    filed ch7 May 09
                    341 june 09
                    discharged, closed Aug 09


                    • #11
                      If it was filed late, and he was notified of the bankruptcy, then it is late ... period.

                      Nothing else matters at this point.

                      Take it to the attorney. Have him respond to the complaint, and in his response the first defense is that the complaint is untimely. Case dismissed.


                      • #12
                        What's more the attorney who filed the AP looks like he has a conflict of interest as well. You may want to see if your attorney can oust him from the case.

                        4 months after the 341? At the very least you should try for sanctions and attorney fees.
                        C7 Filed: 2009-11-06 | 341: 2009-12-14: | DISCHARGED: 2010-02-09
                        Condo: Walked away due to 2nd mortgage intransigence; 1st foreclosed. Now totally DEBT FREE!!


                        • #13
                          I want to keep up on the status of this case. Sounds very interesting, and it appears that other than Credit Unions... family, friends, and former business partners are the WORSE to deal with in a Bankruptcy. I'd rather fight with creditors... at least they play by the rules!

                          Best wishes and the advice you're getting here from several members is spot on. You need to get with your attorney to have this Adversary Proceeding (complaint) either dismissed or stricken.
                          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                          Status: (Auto) Discharged and Closed! 5/10
                          Visit My BKForum Blog: justbroke's Blog

                          I am not an attorney. Any advice provided is not legal advice.


                          • #14
                            Thank you all for your responses. I will keep you updated as this progresses. I am sure when I get this dismissed, he will then file a complaint in California. It's like a bad dream and a Energizer Battery, it keep's going, and going, and going.

                            Thanks again....BooBoo


                            • #15
                              Originally posted by booboo View Post
                              Thank you all for your responses. I will keep you updated as this progresses. I am sure when I get this dismissed, he will then file a complaint in California. It's like a bad dream and a Energizer Battery, it keep's going, and going, and going.

                              Thanks again....BooBoo
                              Once dismissed how can he file a complaint anywhere again? The first defense in a serial harassment of the person would be that he is now using the Judicial System punitively and you will have the right to sue him for that alone. 'Hub

                              P.S. ask your lawyer for a motion to dismiss with prejudice.
                              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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