Adversary Threat Question

[gello]

repeat post

[gello]

repeated post

[gello]

It seems, through talking with a few BK attorneys, that if the debtor has a big charge, then makes 3 months of payments, then stops - including using the card for purchases - then waits another 3 months to file, there will be no problems with APs.

Well, in my case, it was a balance transfer to a much lower rate. No additional charges. At the time, we had no intention of declaring BK. Now it is just wait and see. However, I do wish my attorney would have told me to wait to file, but I am hoping he knows more about than I here in NH.

[JackBondLove]

It seems, through talking with a few BK attorneys, that if the debtor has a big charge, then makes 3 months of payments, then stops - including using the card for purchases - then waits another 3 months to file, there will be no problems with APs.

[justbroke]

Cool. I think that I like your attorney. Ignoring them is good because if they choose to file an AP, you'd have to fight it anyway, and could easily settle before it really gets going. Nice strategy.

[gello]

Well, my lawyer emailed me today and recommends not paying any attention to the letter at this point. If they follow up, we can address it then, but according to him, I guess he doesn't expect it. I'll be praying until 5/10.

[TurnThePage]

If case law matches the same circuit Debtor is in, it is binding on the Bankruptcy Court Judge; otherwise it is merely "persuasive .." Hopefully gello's attorney has a good defense to this BT; many courts have held that BT's are not necessarily "fraudulent," but it varies ... I am surprised, too, that the attorney did not catch this ... But I believe Chase is a creditor that will more than likely accept a settlement in a counter offer though ... Anyway, that's just my 2 cents.

[keptdigging]

Okay, as to Gello's case....

Maybe the law is on your side in your district and your attorney knows it. Note that at this point, all Chase has had to do is send out a letter. They haven't had to commit any funds to litigation nor risk having to cover your attorney costs.

Still amazing that he'd let that go through when you're not even outside of the 70 day window (and thus YOU have the burden of proof, not the creditor.)

====

If I was a little bit (or a lot bit!) younger and willing to take out student loans (if there's one thing I'm thankful for it is that I don't have any of those... those are the chains of a slave)... I'd go to law school just to get out and practice consumer bankruptcy.

[keptdigging]

I am going to have similar issues... big time. I am so thankful that I found this site BEFORE finding an attorney. I knew all about the 90 day presumption, but this site is where I learned what creditors really do. I'm actually in the process of putting together a "dirty laundry list." If an attorney tells me "no problem," I'm likely to just move on. I'm looking for the one who can quote odds and experience and suggest strategies.

The irony is that the sins I committed, I committed trying to be a good boy and pay all my bills on time. If I was really planning to go bankrupt, I would have done a lot more research and done a much better job! But such is life when you've fallen into the rabbit hole. (Along with: more income is bad, home going up in value is bad, etc. etc.)

What I've also learned: I wish I was in the Inland Empire (I'm in San Diego instead) and could use Albacore44's attorney.

[justbroke]

Yes but the exception doesn't swallow the rule. While it's true that there are specific portions of the code where there is such a presumption, there is no overarching rule that "90 days=insolvent". After all, if there were such a rule the rebuttable presumption would no longer be rebuttable.

Didn't mean to indicate that it did from a "purely" wording standpoint, and I think I used the words "is presumed insolvent" and not "is insolvent". Perhaps I'm not saying it right, so I apologize.

Because the original poster's question is specifically about a charge made within 90 days, the "presumption" is in play (11 USC 523). Also, the "presumption" comes into play from a preference point (11 USC 547) should the Trustee choose to pursue that avenue to avoid the transfer on behalf of the other unsecured creditors.

So my answer was specific to preferences and to a cash advance (balance transfer) that occurred during the period shown in 523 and 547 as presumed insolvency. Or am I missing something here?

[BKFOURAB]

I had a similar situation in my first BK, but the laws have changed. I had several creditors scream that I was abusing the law(s). None of which were upheld by the trustee. It was Chase MC who brought the first adversarial against me. I had to go through interrogatories, and the credit union said everything was cross-collateralized, blah, blah, blah. But the trustee saw it my way and discharged it all. Talk to your attorney. He/she should already have a copy of the paperwork the CC sent to you.

[Dst1]

There are multiple sections of the Bankruptcy Code where it is spelled out. When dealing with preferences, which is in 11 USC 547, the code specifically mentions in (f) that (with regard to preferences), "the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition."

Yes but the exception doesn't swallow the rule. While it's true that there are specific portions of the code where there is such a presumption, there is no overarching rule that "90 days=insolvent". After all, if there were such a rule the rebuttable presumption would no longer be rebuttable.

[MrsDixon]

I filed in 10/2008 and had just completed BT's a month or two earlier. A few lawyers didn't want to touch my case until the BT's had seasoned but one lawyer that I talked to called me a few days later and said "something just came down the pipes about BT's, I can file it". He filed it and everything was fine. Has something changed since 2008?

[albacore44]

its really to bad you did not find this forum before you did that. you say you did that in january ?? and this is March ?? holy shizz.

Why the rush to file ?? I think you got bad advise from an attorney who was in a rush to take your money, sorry to say. many of us here did balance transfers. but in order to get past the presumption of abuse, you should have waited. i waited a whole year from the time i made my last CC payment, for just that reason.

best of luck to you. your going to need it.

[justbroke]

You are technically and presumed to be insolvent 90 days within filing.

That's news to me. Would you care to tell me why you think that.

There are multiple sections of the Bankruptcy Code where it is spelled out. When dealing with preferences, which is in 11 USC 547, the code specifically mentions in (f) that (with regard to preferences), "the debtor is presumed to have been insolvent on and during the 90 days immediately preceding the date of the filing of the petition."

But as you point out, this is a rebuttable presumption.

Insolvency is only rebuttable if you can prove that you weren't, actually, insolvent. If gello can show that they had money at the time and were only rearranging debt, to take advantage of the 0% interest (for example), I think this can be shown.

I'm sorry that the attorney put gello into this position, but Chase is probably thinking easy money. This is a double-whammy. The Trustee could seek to avoid the payment that Chase made to the other creditor by recovering the preferential payment from that other creditor. But "gello" you need not concern yourself with the preference issues.