Received a letter from Creditor's Attorney

[tigergem]

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

[justbroke]

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

[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]

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.

[PoorGrammyinBK7]

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.

[tigergem]

Well. In your letter, which will be just like any other business type letter, you don't really need a template...you want to just mention all the things that justbroke and backtoschool wrote:

You weren't insolvent at the time,

it wasn't within the statutory 90-days (for presumption of abuse),

wasn't a cash advance,

wasn't an eve-of-bankruptcy purchase,

and wasn't for a luxury purchase.

Mention if you also made "some" payments on it (at least the minimum) between when the charge was made and filing...a five month gap between the charge and your filing and you made at least a few minimum payments until you filed...

... and pay special attention to what AngelinaCatHub said as well!

Those are your "basic" affirmative defenses that you would (only if you have to, of course!) build a court defense on. And you would find that there are statutes you can cite primarily in the Federal Rules of Bankruptcy Procedure, I think, for each one of those listed points that you are making. You don't have to go to all that work just write the letter, though.

Officially I think the term that is used for them having caused the over limit by changing the terms of your credit might be "unclean hands"... but again that is not something you would need to worry about unless it actually progresses to an AP.

You should be able to write the letter pretty quickly and then do the homework on the statutes, after you have it sent off.

[Alix23]

Thank you very much everyone for all your help and comments.
As you all suggested, I am going to write a letter to them explaining the situation and as Hub mentioned, I'll be brief and to the point!

tigergem, you mentioned something about stature citings that I can use. can you tell me where I can find such information?
is there a template out there I can use to start off my response letter?

Thank you again for your time

[tigergem]

As a second pro se person I am going to pipe in here and say that I "think" if you list your affirmative defenses in the letter back to them just as the others have said here, that they will probably back off. And. I think those same affirmative defenses backed up with a little bit of case law and a couple of statute citings would make this particular AP do-able for you, even if you had to do it yourself. I don't think I would be so very afraid of this one, and I am considerably more timid about rocking the judicial boat than justbroke is. Of course be sure to send it by certified mail and keep a copy.

[AngelinaCatHub]

I agree with 'JustBroke' and 'Backtoschool'.

My opinion is write a nicely written letter, pointing the blame at them in a diplomatic way in that whatever "over limit" was caused by their own hands, and that you intended to pay until "unforeseen" circumstances happened, and that you ARE NOT ABLE TO PAY AT ALL, and there was absolutely no intent of fraud.

Please respond, but very carefully worded as, yes anything can be used against you. Make no statement acknowledging you owe anything, except you are responding. Make no mention of any amount. Use the word "assumed" debt, or "alleged" amount liberally (gawd I hate that word), and by all means do respond.

A lawsuit can be a nasty little bother. 'Hub

[backtoschool]

If there was a five month gap between the charge and your filing and you made at least a few minimum payments until you filed, then I do not think that the creditor has a case in an adversary proceeding.

The problem is, that an AP is a separate trial and will cost you money until you win and recoup that money from the creditor.

I do not think the creditor has a strong case here at all.

[justbroke]

Well, the lawyers won't give you advice on here, but may mention something. Personally, I'd fight it, but that's me. You weren't insolvent at the time, it wasn't within the statutory 90-days (for presumption of abuse), wasn't a cash advance, wasn't an eve-of-bankruptcy purchase, and wasn't for a luxury purchase. I assume that you also made "some" payments on it (at least the minimum) between when the charge was made and filing.

[Alix23]

Sounds like you have a crummy lawyer (and I am not one - so take this as just one layperson's opinion)

Was it an actual cash advance or run through as a charge to pay for medical expenses?

Either way, I really don't think you have to worry about this since it was 5 months before you filed and used for necessary medical expenses, and especially if you have paid some payments since then. From what I've read the creditor filing the AP has the burden of proof, which I think would be very difficult in this case.

If no motion has been filed, they are probably just trying to intimidate you into settling, which has happened to many. IMHO they are bluffing. But I don't know all the details and again, I am not a lawyer.

Hopefully one of the lawyers on here will reply soon.

Couldn't agree with you more. He is a crummy lawyer. he's not even willing to even write a response letter for me with pay!! so I guess I have to ignore the letter completely or find another attorney to write one up. But I have to start all over and find an attorney I can afford that can do this. so.....its gonna be a headache!
To answer your question, it definitely was not a cash advance. The card was used (striped) to pay for medical service. I like to mention that I had 2 other cards with zero balances with credit lines totaling $18K that was not even touched, plus I had plenty of available credit on the cards i was using.(I had a 814 FICA score at one point)

I am also convinced that this letter is just a scare tactic to try to get me to pay that amount. Also, with that amount, is it even worth their while to pursue this? I'm assuming with all the fees taken out, the creditor might get less than 50%!!

I hope that a lawyer on here can give me some advise soon.

[PoorGrammyinBK7]

Sounds like you have a crummy lawyer (and I am not one - so take this as just one layperson's opinion)

Was it an actual cash advance or run through as a charge to pay for medical expenses?

Either way, I really don't think you have to worry about this since it was 5 months before you filed and used for necessary medical expenses, and especially if you have paid some payments since then. From what I've read the creditor filing the AP has the burden of proof, which I think would be very difficult in this case.

If no motion has been filed, they are probably just trying to intimidate you into settling, which has happened to many. IMHO they are bluffing. But I don't know all the details and again, I am not a lawyer.

Hopefully one of the lawyers on here will reply soon.

[Alix23]

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).

Thank you again for the info.
well, I have emailed my attorney's "assistant" and asked him if they can write a response letter explaining my situation. and I told them that I would pay for their services. but as of now, I have not heard back yet. When I talked to the assistant, he was kinda hinting that i should take the settlement and that the lawyer might not take on these cases, eventhough I have a good reason as to why I used the card. He kinda scared me a little by saying if you lose, they'll garnish your wages, and I have to pay for all the fees and that would be a lot more than $3000.
now, my thing is, If I pay the $3000, wouldnt that put a red flag on my case and other creditors might come out and say, hey if you paid so and so, $3K, why cant you pay us $500....etc. its like opening yourself up to more of these collections.
anyway, I thank you again for your input. I will put an update here if anything else happens.

[justbroke]

anyhow, is there any way I can file a response myself without an attorney? what is that response called in this case?

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).