AP notice received today ... scared ... stressed ... long story thanks for helping

[AngelinaCat]

You can call the Clerk of the BK Court and ask to speak with your caseworker. Ask if there is anything missing from your file that may be holding up the discharge. If there is you can ske your attorney to post it. I don't remember if you have an attorney or not. I know you don't for the AP.

A Discharge will not help you if your wife receives an inheritance with 180 days of your filing. On day 181, you would be free and clear. Otherwise, that money or asset belongs to your BK Estate.

BTW, this is a NEW question that is primarily about your AP. This NEW question needs to be in a thread all it's own. At 7 pages with 102 posts, this thread has gotten unwieldy for people to go back through.

Thanks

PS: I will let this reside here until I know that you have seen it, then I will start a new thread for you.

[scbendel]

Update: bk is past the 90 days and still hasn't discharged. Can I call the clerk and have them enter an order of discharge even though the AP is still opened?

The reason I'm asking is this: my wife just lost a relative who is most likely leaving her a small sum of money; and obviously I want to be discharged before (and if) that happens. As far as the AP, I may offer a settlement at the status conference of 33 cents on the dollar; since the debt is still "open", as it were, would the be entitled to anything we were to get? It may be 90+ days before we see anything.

Thanks again guys! Oh and btw, I filed my answer last week.

[scbendel]

One more question I'm kind of fuzzy on. Can I partially deny a paragraph if half of it is true but a part of it is false? Or at that point do I deny the whole thing?

[scbendel]

Thank you Des!! I've been on the self help website like CRAZY. And have been on pacer looking at a few files answers plus I was able to speak with one attorney for about 15 minutes yesterday. I'm pretty confident that we will have a solid answer tomorrow. I'll post tomorrow when we have it finished (or if I have any questions I can't find the answer to). You are amazing! Thanks again!

[despritfreya]

Look at Rule 7008 Federal Rules of Bankruptcy Procedure, which, in turn, refers you to Rule 8 of the Federal Rules of Civil Procedure. Rule 8(c) list the affirmative defenses that must be raised in the answer or may be deemed waived.

A Motion for Summary Judgment is something you file down the road. An answer is just that, an Answer. The "Wherefore" statement at the end can state something like,

WHEREFORE, Defendants pray:
1. Plaintiff take nothing by way of its Complaint; and
2. The Defendants be awarded their reasonable attorneys fees and costs and
for such other and further relief as the Court deems just and proper.

Once the Answer is filed the Court will require the parties to meet and confer and attend some sort of status conference. Each Judge is different. You can look up the procedures at:

http://www.azb.uscourts.gov/default.aspx?PID=65

Find your Judge then carefully review the entire procedure list top to bottom to see if there is a specific listing for Adversary Proceedings.

Also, the Court does have a "self-help" center. You may want to take advantage of it.

Des.

[scbendel]

Thanks again Des. We are drafting our answer tomorrow.

When it comes to the affirmative defenses section, how specific do we need to be? Also, at the and of the answer, we can ask for a summary judgment conference, right? Thank you again, I think we've about got this straight.

[despritfreya]

If the claim is excepted from discharge the creditor can collect as allowed by state law - garnishment of wages, garnishment of bank account, etc. You can also try to negotiate payment terms to avoid garnishment.

Des.

[scbendel]

Question: if we lose this and the judge orders the debt stands, what methods of collection can they use? Before BK they were aggressively stalking my payroll coordinator, had a writ of garnishment, and a debtors conference scheduled to assess my bank account. They didn't succeed in getting a dime, thanks to the automatic stay, but lets just say we lose this battle...can they go back to their old tactics, or is there a limit to what they can take after being through a bankruptcy?

[scbendel]

Thanks Des.

[despritfreya]

Call them back and ask for referrals.

Des.

[justbroke]

You could keep calling around while you do your own research.

[scbendel]

Bad news. I got appointment reminder calls from the two attorneys I had appointments with. I explained my case, and both of them canceled the appointments due to the fact that they are "start to finish" lawyers and won't help with an existing case if they didn't file it. I've called 5 more this morning and they're all saying the same thing: even telling me they won't consult. I feel like I'm back to square one now, so I'm going to head over to the courthouse and look at some sample answers/motions for summary judgement. Is there anyone who thinks I should keep trying different attorneys? Or any other advice? -feeling lost again.

[scbendel]

Thanks guys, I'm on it. First consult is Tuesday, then two more Wednesday. I'm hoping that one of them will be willing to write the answer/motions then let me handle the rest; if they can or do work that way. I'm hoping it'll be cheap enough to take the burden off of us. But it's probably just wishful thinking.

[AngelinaCat]

JB's post jogged my memory a bit.

Go to your BK Court's website and look for your trustee and judge. If your judge is anything like ours was, there will be a manual that you can download for procedures and forms that your judge will accept in his or her court. Many times, at least in our case, there was a form with instructions on how to fill it out and submit it. These were general things, though. I can't guarantee that you will have forms and procedures for what JB is suggesting, but it is worth a look.

[justbroke]

In your opinion (attorneys please), would I have much luck filing a motion to dismiss on the grounds that their claims aren't factual? Or is this something I would provide in my positive defenses section of my answer?

You would ask for a Motion for Summary Judgement. It's hard to just answer and say "everything they said is wrong" and expect a Judge to issue in your favor on the MSJ in your favor. In other words, you can't just say their claims aren't factual because I say so. You would file an MSJ based on the lack of evidence or showing that they lack standing or the case is without merit or the debt is otherwise dischargeable.

Maybe Des will provide you with more information. You should read on procedures for Complaints (APs) and determine what the Judge would hear at the Status Conference. You may be able to pen and serve an MSJ and schedule it for the same date as the Status Conference, after you submit your answer.

Procedure is probably going to be your worse enemy.