Creditor didn't show for Adversary Pretrial

[tana0220]

My question is what happens now that the creditor who filed adversary did show up for the pretrial on September 15. My bankruptcy is now in limbo. Only thing pacer shows is on September 17th the adversary was moved to dismiss by the judge. Anyone have experience with this?

[midnight]

Did the judge give the creditor time to respond to the motion to dismiss? Or did he dismiss their adversary claim altogether? Do you have a lawyer that you could ask? I work at a law firm, so I would imagine the creditor messed up by not showing up, but sometimes judges can be sympathetic and give them a second try?

[tana0220]

I do have a lawyer, he mentioned a waiting period but didn't know how long it was 10 days, 20 days. Pacer shows, dismissed but with a pending status that says Awaiting Closing. My husband called the bankruptcy court and they told him they were waiting for the trustee. I don't understand why it's taking so long, i feel they should have closed it when the creditor didn't show up. The whole point of the Adversary was to discredit our bills he said we inflated what we pay a month and it's not true we maybe were a few dollars off here and there on our estimates but not enough to make a big difference.

[tobee43]

My question is what happens now that the creditor who filed adversary did show up for the pretrial on September 15. My bankruptcy is now in limbo. Only thing pacer shows is on September 17th the adversary was moved to dismiss by the judge. Anyone have experience with this?

that's good news for you....they filed but never showed up to fight it. you may be a no asset case...you do not mention it....however, if the trustee's office let them know you have nothing...they just back down and don't spend another dime going after something they can't get.

that is what appears to have happened by them not showing up. your atty should advise you about this....because he or she should now jump on a dismissal of the ap.

[tana0220]

We are a "no asset" case. We have 4 kids 1 income the only thing "big" we own is a 1998 Dodge Stratus we bought for $3500 with our income tax money. This damn adversary has cost an extra $800 for that creditor not to even show, sucks. The discharge is so dang close i can touch it but it's nerve racking not knowing why it's taking so long and what is going on. Funny thing is that creditor called my lawyer 2 days before the pretrial hearing, and my lawyer thought for sure he'd show up, but he & the judge waited and he never showed up. That's not fair that we have to wait to give the creditor a chance, when he wasted the judges time.

[tobee43]

We are a "no asset" case. We have 4 kids 1 income the only thing "big" we own is a 1998 Dodge Stratus we bought for $3500 with our income tax money. This damn adversary has cost an extra $800 for that creditor not to even show, sucks. The discharge is so dang close i can touch it but it's nerve racking not knowing why it's taking so long and what is going on. Funny thing is that creditor called my lawyer 2 days before the pretrial hearing, and my lawyer thought for sure he'd show up, but he & the judge waited and he never showed up. That's not fair that we have to wait to give the creditor a chance, when he wasted the judges time.

i still believe you are most likely in good shape....i hear you on the fairness.....but unfortunately all creditors have 60 days to file a claim.

we had to wait as well and were a no asset case...i think had anyone filed the trustees office would have told them...these people are homeless and you want WHAT????

i know it's hard not to worry...but i promise it will be ok...really.

[tana0220]

We filed on April 4, 2010. We are going on 6 months, it is just so stressful! Thank you tobee43 for reassurance it helps. Our creditor waited until 2 days before the 60 day period was up.
I noticed on Pacer that on May 13th the Trustee's report of No Distribution, so what is he now waiting for?? It seems like case closed to me. I'm just ready for this chapter to be closed!

[HHM]

Keep in mind that an Adversary Proceeding is Separate from your bankruptcy case. An AP can continue even after you BK is discharged and closed.

So, what you want to see is a dismissal of the AP. The BK will proceed as normal. What the court is telling you is that the trustee hasn't filed is final report.

[tobee43]

We filed on April 4, 2010. We are going on 6 months, it is just so stressful! Thank you tobee43 for reassurance it helps. Our creditor waited until 2 days before the 60 day period was up.
I noticed on Pacer that on May 13th the Trustee's report of No Distribution, so what is he now waiting for?? It seems like case closed to me. I'm just ready for this chapter to be closed!

as HHM pointed out although you may have gotten a report of no asset distribution...the discharge has not be issued as yet.

these are two separate documents and legal instruments required to put your bk behind you. while it is true the discharge can be held up due to ape's it's still good news about the report of no distributions since that usually means the trustee has released the estate... what now does the creditor expect to game when the trustee says there is nothing there? some just like to be crumbs in our beds.

and since the no asset order, ir doesn't mean the creditor will not fight it...but hopeful they will lose because there's nothing there to take.

[tobee43]

Keep in mind that an Adversary Proceeding is Separate from your bankruptcy case. An AP can continue even after you BK is discharged and closed.

So, what you want to see is a dismissal of the AP. The BK will proceed as normal. What the court is telling you is that the trustee hasn't filed is final report.

i'm not exactly clear on that.....can you elaborate...as my understanding is once the order of no asset distribution is signed and issued, the trustee has released the estate and no longer has any interest in it.

however, the discharge is not issued due to the open AP....so isn't that decision only based on one aspect of the case, resulting in the case not being "discharged" until that matter is settled?

i, for one was more impressed upon the receipt of the no distribution order than the discharge...although happy to had rec'd them both in one day.

[HHM]

i'm not exactly clear on that.....can you elaborate...as my understanding is once the order of no asset distribution is signed and issued, the trustee has released the estate and no longer has any interest in it.

however, the discharge is not issued due to the open AP....so isn't that decision only based on one aspect of the case, resulting in the case not being "discharged" until that matter is settled?

i, for one was more impressed upon the receipt of the no distribution order than the discharge...although happy to had rec'd them both in one day.

The discharge should still issue notwithstanding an AP. An objection to discharge of debt filed by a creditor only contests the discharge of the "particular debt". The rest of the debt (and the rest of the underlying BK) gets discharge, on time and as usual. The existence of the AP acts as the mechanism that puts the specific debt in dispute.

For the unwary, this is a big mental trap. When an AP is filed, too many pro se debtors make the mistake of not following through with the AP because they receive their BK discharge prior to the final conclusion of the AP.

An objection to discharge of debt is asking the court to remove a particular debt from the BK estate because it is non dischargeable (for whatever reason). That proceeding can continue and be determine notwithstanding what happens with the rest of the BK.

[tobee43]

The discharge should still issue notwithstanding an AP. An objection to discharge of debt filed by a creditor only contests the discharge of the "particular debt". The rest of the debt (and the rest of the underlying BK) gets discharge, on time and as usual. The existence of the AP acts as the mechanism that puts the specific debt in dispute.

For the unwary, this is a big mental trap. When an AP is filed, too many pro se debtors make the mistake of not following through with the AP because they receive their BK discharge prior to the final conclusion of the AP.

An objection to discharge of debt is asking the court to remove a particular debt from the BK estate because it is non dischargeable (for whatever reason). That proceeding can continue and be determine notwithstanding what happens with the rest of the BK.

thanks for that clarification....so in other words...or in your words...yes, the bk can in fact be discharged..however the open AP...can be kept open until resolved.

i would think it wise if one had an AP...even when filing initially pro se...to have that motion handled by an attorney.

i know we were prepared...for the "just in case" scenario...we had an extremely intelligent brand spankin new atty....perfect for the bk...but i would have felt much more secured if an AP was filed to have a more "seasoned" atty handle that. and, did, in fact interview a few others just in case the situation arose. thankfully, we did not have to go down that route.

good info...thanks!!!

[tana0220]

In my AP, my creditor is not trying to get his debit thrown out of the bankruptcy but instead he's trying to call us liars and get our whole debit dismissed. He knew he couldn't prove we got this loan out of fraud so his only way to hurt us would be to try to get our whole thing thrown out. Well mid-fight he didn't show up to a pretrial hearing, i know it's because he knew he didn't have any major proof that we lied other than calling the electric company and asking them what a family of 6 in a house our size should be spending a month on the bill. He even went as far as to call the welfare office to find out how much money it would take to feed a family of 6. His big argument was that since my husband got a per diam at work he can't include work expenses, his major point is false! My husband does not get a per diam and everything he eats or drinks on the road comes out of our pockets, including showers.
I'm just ready for this to be over!!

[tobee43]

tana...i think you have answered your own concerns.....

they can't prove fraud....and if you have already been established as an no asset case...i'm not exactly understanding where they could be going with this other than no where.

HHM will be able to advise if and what types of proofs are required to win a AP in an no asset chapter 7. but once again, i really think they didn't show up simply because they had absolutely NOTHING to show!


really....don't they have bigger fish to fry...PLEASE!!! go after the people that have millions would they already??
i think it will be over really soon for you and yours...

[tana0220]

Fianally free of debt!

Here's the update: I couldn't figure out what was taking everything so long, we filed 04/0502010 and had an AP filed two days before out 60 day period was over, so we filed to get it dismissed but the judge decided we needed a pretrial hearing that was scheduled for September 15th. We were not required to show, just our attorney, well the creditor who filed the AP never showed up to the pretrial. The judge issued a dismissal on the 17th of September. We've been waiting for 3 weeks today to hear anything, well yesterday i called the court house to find out what was going on, turns out that our case was in limbo. The very nice lady couldn't figure out why it had just stopped, so she transferred me to the Discharge team and after looking at our case she said for some reason the adversary wasn't marked as officially closed so she did that last night and low and behold today i just checked and We are officially DISCHARGED! it's been 6 long months of stress but oh so worth every minute of it to finally be free of our debt!

Thank you God for hearing my prayers and ending our suffering!

~Thank you for your advice & wisdom~