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Hit with 2 AP's; no money for attorney

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  • Hit with 2 AP's; no money for attorney

    First AP: ex suing for nondichargeability of post divorce debt (attonrey fees awarded to him by me under a marital statute to 'equalize' the finances of the two parties...even though he made big bucks and I made nothing...but then, I had a friendly to ex judge.
    He says that the sale of my house didn't cover the debt which he says was secure. On both counts he is lying: (1) he filed a lien without a judgment...using the property settlenent that spoke to debts being offset and paid off AFTER the house sold...lien was in violation of court order that neither of us could file a lien on the house. (2) he WAS paid off in full for his lien because the judge wrongfully 'gave' him my homestead exemption (against state law). Essentially then, he is lying to the bk court, isn't he?

    So: I have to file a response to this AP. Do I bring up all of the above in my response to show that he brought the AP in bad faith?

    Second AP: My Chapter 13 was dismissed because the court found that my secured debt to buy an investment property was unsecure because I couldn't produce a deed (only a contract for sale, a promissory and a deed of trust) The deed was/is held by the notario in costa rica where the investment was until the loan is paid off and I had 2 days notice to procure an English translation of the deed for the court hearing (over a weekend). My attonrey should have asked for a continuance or otherwise fought this in the hearing, but she was incompetent and playing for the other side.
    OK, as a result, and with a little help from my ex's attonrey, the trustee has filed a
    fraudulent transfer, preferential transfer and recover transfer and disallow claim. (Ex doesn't want their to be any other creditor but him so that he can get all the money that is they are going to try to get the money from this lender who loaned me the money in good faith and it is SECURE except for the court saying it isn't so that my 13 could be dismissed.

    The accusations:
    (1)the lender is an insider. Nope, the state court found that she wasns't an insider...not family and not a partner. (can the bk court ignore the state court finding?)
    (2) I was or became insolvent. Nope, I owned twice as much equity in my house as the amount of the loan which was secured by the investment property AND I had significant money in retirement assets owed to me (by ex) that were ovver twice the amount of loan. So my assets were 4 times the amount of the loan and my income was 3 times the amount of the monthly payment.
    (3) that becuase the loan wasn't 'secure' that this means I was paying money on land that I supposedly wasn't buying????????????? just can't grasp this gobbleygook but that was the essence of what the bk judge said in the 13..that since I dind't procure a deed that meant I didn't own anything...I said that unitl I paid off the loan I didnt' get the deed, but no one cared. SO: since I was paying monthly, a year's worth of payments prior to filing were 'preferential' to an UNsecured creditor over other unsecured creditors. EXCEPT: I didn't have any unsecured creditors at the time???????
    (4) bottom line, she wants to recover $24k of payments
    (5) she wants to disallow the creditor from filing a claim (so that ex will be the only other creditor for his claims and get paid with the $24k and the money the trustee hopes to take from my retirement plan (yet another story)

    SO...she is bbringing this AP against the creditor who is mmy friend and who gave me lots of slack when I was told by the Chapter 13 trustee that I couldn't keep the investment property and had to give it back. (She could have charged me beaucoup bucks but didn't). My DOT with friend says taht if I don't pay, she can take the property back AND charge me attorney fees. SO in this case of an AP against her, I will have to pay her attonrey fees which I surely can't afford.

    SO: do I respond to an AP claim made by the TRustee because I haven't seen anything to that end like with the other AP by ex? Or does the court automatically set a hearing if the AP is filed by a Trustee? Can I bring up that the Trustee abandoned a house worth $1.56 mil so that it voculd be sold to ex's intimate friend for $600,000 leaving me with nothinbg instead of the half mil I was ordered to get by the state court? So she abandons that asset that is worth something only to go after my retirement fund (qualified) and the payments I made on a secured debt which wasn't found unsecure until long after I stopped making payments.
    Finally, my friend has no money of her own (her business and assets are all corporate) she is in RE and no one is making much in RE right now so she is in debt herself and put the investment property (that she owns as a corp, but I was buying a subdivided piece of for resale) up for sale. What can they take from her if they win and she can't afford to pay?

    this is fubar and vindictive, but this is what happened in the divorce court all this time so I fear it happening here. Sorry it is such a long post.

  • #2

    I will look at your PM this evening. In response to the 2nd part of this post, it sounds like the AP was filed only against the party that received the payments, not you. If I am correct, you are not a party to this AP and therefore cannot file an Answer. The party being sued must file the Answer.



    • #3
      You're are always right I think! taht the AP is against the lender BUT my loan with the lender makes me responsible for any attonrey fees that she has to pay with regard to the loan. I was told locally that this is all part of fishing expeditions by the TRustee, esp as she knows I don't have an attonrey or money to afford one. Neither does my friend!
      But my guess is that the answer....whoever writes it...should ask for summary judgment in that the lender is NOT an insider and the payments to the lender were over 5 months ago and not within the 3 month period. It seems that in order to collect further back than 90 days, the judge would have to find that lender was an insider and I just vcan't see that happening..

      Just more work to deal with and more legal fees to pay. Sigh.


      • #4
        Sorry CoBelle, it certainly seems like it's never ending for you : (


        • #5
          Yea're right. Almost seems unbelievable that this could happen to someone who filed so taht she could buy out her ex's share of the house so that it wouldn't be sold for nothing to his intimate friend and so she could fix up the house , sell it and pay all her bills and have money left over. Seems like I should have been the perfect candidate for a chapter 13. Instead , I'm told that I am someone trying to subvert state court orders to sell the house (my priority right to buy it must not count) and defraud my creditors (ex and his attorney who filed judgment liens after the court said that they couldn't)

          It's just unbelievable, and I wonder sometimes if even my friends wonder ....she must have done SOMETHING. But if I did (other than cross a judge) I have no idea what it is.


          • #6
            Wish I had some good advice for you CoBelle, but sending hugs, sympathy and prayers your way.

            Keep On Smilin'


            • #7
              So not sure if anyone will read this question if I post in the middle ofa thread but,
              TheAPwas filed Feb3, but no one has gotten a copy of it yet.
              Does the cour issues some sort of summons with a response time....or what/


              • #8
                Originally posted by CoBelle View Post
                The AP was filed Feb3, but no one has gotten a copy of it yet.
                Does the cour issues some sort of summons with a response time....or what/
                Assuming the time periods have not changed:

                1. The Complaint must be served within 120 days of its filing.
                2. The Plaintiff needs to request the Court to issue a Summons. Once issued, the Summons must be served within 10 (it may now be 14) days. If it is not served within the required time the Plaintiff must ask for the issuance of an alias summons.
                3. Service is by regular mail.



                • #9
                  johnny (or should I say Des-on-the-spot!)

                  I rec'd a copy in the mail ....but the defendant hasn't yet and I guess hers will have the date on which the summons was issued in re the 30 day response time.



                  • #10
                    Yes in federal court, bankruptcy matters, you have 30 days from service to file a response. If you need more time you should request for more time and the courts are generally grant them freely for another. Typically 2-3 additional weeks.


                    • #11
                      Originally posted by SteveGreen View Post
                      Yes in federal court, bankruptcy matters, you have 30 days from service to file a response.
                      Not correct.


                      Rule 12 Fed. R. Civ. P. states:

                      Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
                      (A) A defendant must serve an answer:
                      (i) within 21 days after being served with the summons and complaint;

                      HOWEVER, Bankruptcy Rules are different.

                      Rule 7012 Fed. R. Bk. P. states:

                      If a complaint is duly served, the defendant shall serve an answer within 30 days after the issuance of the summons, except when a different time is prescribed by the court.



                      • #12

                        You need to clean out your mailbox. Cannot send my other PM



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