Received a letter from Creditor's Attorney

[justbroke]

Still think you should ask another attorney, before doing any letter writing.

Absolutely agree. I suggested that the poser do so and the poster is going back to his attorney to see if they'll write the letter for a fee.

[AngelinaCatHub]

Hate to disagree with some of you guys - you probably know much more than me, but I just feel uneasy about him writing a letter to the creditor or the creditor's attorney. Still think you should ask another attorney, before doing any letter writing. Just my opinion.

True 'Grammy' and 'JB', but the poster plainly said he's broke. After all, that is why he is bk. The letter is the cheapest out and better than not responding.

Bankruptcy is made to give a person one new start (hopefully only one) and a clean slate. Under normal situations, a creditor has only two legal reasons to have their debt not discharged; fraud as in taking advantage of a creditor, or willful or malicious damage such as a pending lawsuit for personal damages with intent to harm. Otherwise, all other reasons are statutory such as fines, taxes, school loans.

I don't think the creditor has a legal cause to AP. On what basis? He would be the one that would have to prove fraud. The OP has a near iron clad defense. It is called receipts for payment. As long as he can show the payments went to were they were and no reason to take advantage could be seen, the creditor fell outside of the time frame for his AP. Even an AP has to be filed within the 60 days. (I didn't catch if the OP was discharged). 'Hub

EDIT: Add on that the debt fell way outside of the traditional look back and if the 10 days for assumption of fraud has passed, I feel more confident that the creditor is blowing smoke and the OP can deny any charges of misconduct denying his "clean start". I vote that the Judge in the AP would dismiss this cause. 'Hub again

[justbroke]

I was hoping his lazy attorney would at least look at his letter... even if he had to pay him $50.

[tigergem]

What do you think are the odds that a NACA attorney would take a look at it?

[Alix23]

Thanks again for all the feedback. I wish I knew about this site earlier!

thats the thing, should I write the letter myself? or have an attorney (other than the one I had who filed the BK for me, since he not willing to do so) write one? how much does it cost?
I checked PACER last night, and it says under status that "there is no distribution" and "awaiting discharge". so I dont know if I should worry about this letter at all.

suppose, they do file and that amout does not get discharged. How do then pay for it? will they set up a payment option or do I have to pay it in a lump sum (although I can not do that)? what are my options IF it is filed?

[justbroke]

The No Distribution has absolutely nothing to do with a complaint filed by a creditor seeking to have the Judge determine dischargeability of a debt.

I suggested that you write the letter, and have your existing attorney review it. Try not to pay more than $50.

As for losing the Adversary Proceeding (AP), yes, you would probably need to go on some sort of payment plan.

[TurnThePage]

This situation actually sounds like a slam dunk for the Debtor. Medical expenses are one of the many reasons that people file for bankruptcy. The Judge would rule that the charges were not for luxuries, are outside of the 60 / 90 day rule, too, and therefore, were not fraudulent.

The Creditor is trying to scare you into settling; he has no case. Even if the Creditor goes ahead and files the AP, you'll have the opportunity to respond to the Complaint with an Answer, and then list all these Affirmative Defenses mentioned above.

Your "prayer for relief" should also run as follows:

#1 Dismissing the Complaint with prejudice.
#2 Awarding the Debtor his reasonable costs / attorney fees.
#3 Such other and further relief as the Court may deem just and proper.

You'll also have an opportunity to send Interrogatories to the Creditor, to be answered under oath ... See the book "How to File for Chapter 7 Bankruptcy" (Nolo) for a list of possible questions, which has great suggestions in defending against an AP.

No advice provided here should constitute legal advice; you should consult with a Bankruptcy Attorney to discuss your options.

[bobbyquefour]

Since it appears they didn't file a Motion with the court, you'd just be answering the letter. If you do answer, see if your (cheap) attorney will take a quick peak at it for free... even if he charges you $50, it could be worth it? Don't elaborate on things. Just answer their probing questions with SHORT and to the point responses. Remember, this could (will) be used against you later. What you're trying to do though is making them feel that pursuing the complaint is fruitless and a waste of time.

I would seriously at least consult with your attorney on this. It may be worth your while. I would hate to see you shell out $3K to settle, but at the same time, I'd hate to see this go to trial and you lose and be out $4,500 plus attorney fees (their attorney fees).

I thought in the Creditor's Objection section HHM stated that if you lose you are not responsible for the creditors' attorney's fees. Did I misread?

I know I am late in posting on here, I am just trying to educate myself. For me, I would not respond to them myself, I would have my attorney do it, even if it took me a couple of extra bucks. You never know if one innocent word in your response could give them a stronger case.

Yes, here is what I read in the Creditor's Objections section:

What happens if the creditor wins?

A judgment is entered in favor of the creditor declaring the debt non-dischargable. This judgment can ultimately be used in State Court to get a state judgment that can then be used to garnish wages, etc.

One thing to note...you will NOT be held responsible for the creditor's attorney's fees and costs if you lose.

[justbroke]

I thought in the Creditor's Objection section HHM stated that if you lose you are not responsible for the creditors' attorney's fees. Did I misread?

I don't know... I haven't read that post.

Costs may be awarded if allowed by underlying State non-bankruptcy law. This is covered under the Federal Rules of Bankruptcy Procedure Rule 7054. It's not so much a guarantee, but the court might allow costs if the prevailing party asks for costs, and it is allowable by State statute.

FRBP Rule 7054(b): "The court may allow costs to the prevailing party except when a statute of the United States or these rules otherwise provides. Costs against the United States, its officers and agencies shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice; on motion served within five days thereafter, the action of the clerk may be reviewed by the court."

That's all I know on this topic.

[BKchapter13]

creditors have thier time to object in court, once it lapses that is it.. I am not sure what they can do after your discharge but thats a good question.. I was also told absolutely no contact with creditors.. Right before our filing the repo guy came over looking for the truck that was under our chapter 13, I called my attorney and they promptly called them back.. Absolutely no contact with creditors.. that is what my attorny told me..

[yourbabymomm]

Any update on this?

[paralegal]

Key issue is whether or not the charges / fees were PRE-petition....

BTW - as a paralegal for a creditor I am only here to tell you what it looks like from OUR side of the fence. I actually believe that bankruptcy is a viable option for those who do not abuse it....by that - I mean people that are serial filers drive me crazy.

If you have an attorney use him or her to contact the creditor on your behalf because (a) they know the law WAY better than you (or me or probably any other person on this forum AND they are allowed to PRACTICE law) and (b) it will relieve your stress.

[JackBondLove]

EDIT: Add on that the debt fell way outside of the traditional look back and if the 10 days for assumption of fraud has passed, I feel more confident that the creditor is blowing smoke and the OP can deny any charges of misconduct denying his "clean start". I vote that the Judge in the AP would dismiss this cause. 'Hub again

At what time is the 10 day period for assumption of fraud? Right after the 341?

[Alix23]

Sorry for the very very late update.
well, After talkin to an attorney and getting some feedback on here, I decided to take chance and ignore the letter and "call their bluff". and as I thought, nothing happened!!! the creditors didnt follow up on the AP and my case was discharged and closed as scheduled.
I want to thank everyone on here who took the time to write me with their help/suggestions.

[AngelinaCatHub]

Sorry for the very very late update.
well, After talkin to an attorney and getting some feedback on here, I decided to take chance and ignore the letter and "call their bluff". and as I thought, nothing happened!!! the creditors didnt follow up on the AP and my case was discharged and closed as scheduled.
I want to thank everyone on here who took the time to write me with their help/suggestions.

Yeah you are a bit late, but great news. Pleased to hear you are now free. Enjoy your new start in life. 'Hub