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

[scbendel]

Not yet. I've called both numbers and gotten details and locations, but with 3 kids and the inability to take days off of work, I'm tied down to telephonic consultations, which neither of them will do. I've set aside some funds for PACER, and tomorrow I'm downloading the complaint in its' entirety. I was able to read a lot of it, and they're basically rehashing the arbitration, which was hell. I gotta say, I'd be lying if i said I wasn't depressed and consumed with this. These lawyers ruined almost a year of my life, and now they're at it again. Looking at the hardcore facts of the case, we should win, even without being able to afford an attorney. But I can't help wondering how the judge is going to interpret this, and how bad the opposing attorneys are going to spin this to their advantage. Sigh.

[AngelinaCat]

Congratulations on the loan! Have you made the appointments for the consults yet?

[scbendel]

Good news, somewhat. I was able to explain the AP to the finance company today, and they approved my loan for the new vehicle. So tomorrow I'm surrendering my other vehicle...still no complaint in the mail. If I don't get it in the mail tomorrow I'm going to sign up for PACER and just download it. Will keep you posted on what the complaint says as soon as I get it.

[LadyInTheRed]

The lender said it was fine as long as it was after my 341 meeting. I've had two other loans paid in full with this lender...so I'm hoping that will help. Is there any way they can even be asking for complete denial of discharge?

They can ask for anything. Whether they have a valid basis to get it is another question. Read the complaint and make sure you understand exactly what they are asking for.

[scbendel]

The lender said it was fine as long as it was after my 341 meeting. I've had two other loans paid in full with this lender...so I'm hoping that will help. Is there any way they can even be asking for complete denial of discharge?

[despritfreya]

So long as the complaint does not ask for the complete denial of the dishcarge under 11 USC 727 your discharge will be entered by the Clerk of the Court in due course (assuming you filed the financial management/debtor education certificate). However, I am not aware of any normal lender that will even consider a loan until the discharge has been entered therefore your attempt to finance a vehicle, regardless of the AP, appears to be premature.

Des.

[scbendel]

So, as I posted before, I purchased a car this past weekend for my family. I financed it at a rather high rate, but I expected that...and the payments are way more manageable than the vehicle that I surrendered to the finance company. I got a call today, for what I was expecting to be the normal "interview" from the finance company, verifying job info, etc. they said they might not be able to fund the loan due to the AP. I explained the situation to the finance manager at the dealership and that it had nothing to do with a vehicle loan, and that it wouldn't affect my overall discharge of debt...only the one in question (lawsuit). That is correct, right? The AP, from what I understand, ONLY affects the discharge of this ONE debt, and the rest will discharge as they're supposed to, correct? They're supposed to call me back tomorrow with a decision...is there anything I can tell them to persuade them to fund my loan? This would be another nail in the coffin and leave my family without a vehicle...this cannot happen. Any advice, please? Sigh.

[despritfreya]

I am about 99% sure I can't afford a lawyer...hell, I just filed chapter 7. Lol.

But. . . at least talk to a few. Consultations are usually free and you can get valuable info.

Des.

[scbendel]

I am about 99% sure I can't afford a lawyer...hell, I just filed chapter 7. Lol.

[pamkev]

I have nothing to add just wanted you to know we are with you here. Listen to Des and he is one awesome lawyer. Make sure you find one just as good if possible as he is do not do this by yourself.

Pam

[scbendel]

Hi Des, you are correct...this case is going to be VERY helpful in helping to build my arguments against their claim of "fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny".

Basically from what I'm gathering, I was not acting in a fiduciary capacity, there was no express trust, and I did not embezzle or commit larceny. So it's a long road, and I hope that I can fight this.

[despritfreya]

If my answer is convincing enough, is there any way the process will stop at that point?

No. Once you file the Answer the Judge's procedures take over and a hearing will be held at some point. You will be trying the case in bankruptcy court either at a full trial or on a Motion for Summary Judgment (like what happened in the case I referred you to) but the focus will be on whether or not the conduct alleged rises to a level that would require it to be non-dischargeable. Of course, during the process, you can open the lines of communication and try to settle.

Des.

[scbendel]

Thanks again guys! Des, I'm going to read that now...and most likely quote from it in my answer.

If my answer is convincing enough, is there any way the process will stop at that point? I really don't feel like rehashing this case, it put us through two years of hell, and the judge we see this time around will most likely be inexperienced in the practices of contractors.

[malf1204]

I got into a fight with the Illinois State Unemployment last year. They seized my tax return after my no-asset BK7 discharge from an alleged overpayment in 2000. They claimed to have held an administrative hearing in 2002 and found me guilty of fraud and that was the basis for 13 weeks of overpayment. The BK judge was not impressed and told them to provide proof other than a bias review by a state employee. He simply wrote an order giving them 21 days to provide proof or refund my money. I got a check in the mail about 15 days later. My bet is this attorney knows you did not defend yourself at the arbitration and will not at the AP. Prove him wrong.

[despritfreya]

I urge you to get a PACER account (or have an attny you meet with do this) and pull up the following case. . .

Branden Trust v. Chavez, Case Number 0-09-ap-128 JMM. Find and read the Memorandum Decision - Docket No. 40 (there should not be a charge to download a Memorandum Decision).

Please note that this is not a published opinion and therefore has no value but to educate.

The facts are not the same as yours but Judge Marlar (now retired) gives and excellent dissertation of what a Plaintiff must show under 523(a)(4). It also discusses briefly a claim under (a)(6). There is no way to know if your judge would rule the same way but it is a start for you to get a feel for what is going on.

I’m still trying to find a case that deals with a two-party check but don’t hold your breath. We never find cases with exactly the same facts.

Des.