Received a letter from Creditor's Attorney

[BigJohn]

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.

I had a feeling the creditor was on a fishing expedition. Good thing you did nothing - hard to do.

[justbroke]

Yes, it's a strategy, and one, hopefully working with their attorney, makes the correct choice based on who the adversary is. When I did my adversary (as the plaintiff), I did everything by the book and even obtained an entry of default. I leveraged that default to get a settlement rather than go through the hearings required to get a judgment. (I couldn't get a default judgment on the technicality that I was suing for damages and that it wasn't a "sum" certain.)

Good to read of a specific company that likes to actually follow through with a complaint.

[CObkatty]

Just a note, one creditor who sends out these letters, Weinstein & Riley, has proceeded to file complaints and obtain default judgments. I don't mean to make these letters more effective than they are or self-servingly advocate that everyone rush right out and pay an attorney to address these, but ignore them at your own risk. Sure you may be able to fight it once the complaint has been filed, but if you respond firmly with your affirmative defenses, you may discourage them from even bothering to file as they're more interested in a default judgment than litigation.

[justbroke]

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.

As expected. Congratulations!

[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

[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.

[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?

[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.

[yourbabymomm]

Any update on this?

[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..

[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.

[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.

[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.

[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.

[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?