Got Summons from Amex ( COMPLAINTand objection to discharge )

[deepin]

Major Mike

Unless I'm missing a post ... I don't see the conclusion of this issue.

How did this turn out for you?

[MajorMike]

By the way, had I known I was supposed to wait 90 days, I would have but most on here and from what I've read in other places, gave me the illusion that since it is a Chapter 13, it wouldn't be too much of a problem, I wasnt worried. I think I mis-read a lot because had I been at 100 percent payback, I'm sure they wouldn't of objected.

[MajorMike]

It wasn't a cash advance, Diviaruba, it was a purchase and I had a big sale pending that I was going to pay off this charge within 30-45 days. The sale didn't come through so I panicked and with all the other bills, decided to file BK. I can see how they will look at it and as I said a million times, I have no problem paying it, but how? In payments now or later?? I admit, it is my debt, as are ALL the debts I have. Trust me, I'd ask the trustee for a 10 year plan just to pay it all off, but that isn't possible. It was NOT fraud in the least, but I can see how they would view it. I just want this nightmare over.

[diviaruba]

Right, I sold them and paid bills with it ( on ebay )

And as their attorney would point out, "So Major Mike, you were aware that a cash advance would likely be non-dischargable, and therefore concocted this scheme to purchase gift cards and sell them for cash to pay your bills instead, hoping that it would just be seen as necessary purchases. No matter your intent, these charges did take place within 90 days of your filing, and because you needed the money to pay bills - but not ours! - you were insolvent at the time you made these gift card purchases. The burden of proof of is on YOU to prove that the debt was not incurred fraudulently."

[MajorMike]

Thank God I found this online on a website where someone was rating the business credit cards.

American Express - Does not report to any business credit bureaus but reports to personal credit bureaus as a business card.

As you can see, both American Express and Advanta Business Cards do not report to business credit bureaus. Hence, if building a business credit history is important to you (as it should be), then you should actually avoid both these issuers. But if you do not care about building a business credit history, then which card you get shouldn’t really matter from that perspective.

[MajorMike]

Ok, so my attorney filed an answer but the card in question has MY name and my the old employer I was with underneath. I worked from home and when I applied, asked if I needed a Tax ID. They said, NO, that it was a personal debt on my soc sec number which was perfect because all I wanted it for was to use it for tax purposes. Now my attorney emails me this:

Mike,
I received an inquiry from the Chapter 13 Office regarding your possible interest in XX XXXXXX Inc. . Please advise whether you had any ownership in this company or whether the credit card was a company card.

The company doesn't even know I put their name on the card because like Amex said, it was on MY personal credit and it was just to put a name on it. Come to find out, Amex is saying that this company isn't listed in any of my business affairs. It shouldnt be, I just worked for them and used the card for business expenses that were NOT re-imbursed. I just wanted them seperate for tax purposes. The company should NOT be liable.

What do you guys think could happen? I dont want that company contacted or anything and they should NOT be since it's under MY social security number and when I left the company, I called Amex to tell them and asked if I should remove their name from the card and they said, it didn't matter because they weren't liable anyway.

Is this correct and what could happen here? Now i'm panicking!!!!!

[MajorMike]

I'd be very careful with this angle, MM. Might as well wave a red flag in front of your trustee yelling, "Look! I have extra disposable income!" Don't think you want to go there.

I understand what you're saying Irprn, but I DO have extra and if it will make amex happy, then I want to pay it.
My income is so flexible that I can make more if I want to plus my wife and I have side jobs available for extra money if need be.

[lrprn]

I wonder if they'll let me pay amex extra during bk too to pay it down?

I'd be very careful with this angle, MM. Might as well wave a red flag in front of your trustee yelling, "Look! I have extra disposable income!" Don't think you want to go there.

[MajorMike]

Right, I sold them and paid bills with it ( on ebay )

[keepmine]

I think a question that is going to be asked is, why would someone buy $5K worth of gift cards on credit to begin with? You can't use a gift card to pay your rent or the utilities.

[rrockinggramma]

but if he used the gift cards income to pay his bills, then those are not luxury purchases. But the gift cards themselves are considered gift cards? I think it was a business transaction that didn't go according to plan. What is the case law on that angle?

[MajorMike]

I wonder if they'll let me pay amex extra during bk too to pay it down?

[MajorMike]

I just had to send him a check for $450

Is your attorney charging you to answer the adversary proceeding?? Most do not include that in the filing because it requires additional work and a court date in front of the judge, it's basically a mini-trial. I would guess that AMEX thinks they have a pretty good case because gift cards can treated almost like a cash advance. Worse case is you have to pay back the 5K after your chapter 13 ends and hopefully interest and late fees won't be tacked on at the end. How much is your attorney going to charge for the AP? Most tend to tack on at least another 1-2K to do an AP.

[diviaruba]

My REAL question is, if I have to pay the $5K, how will I have to pay it?

If you lose the presumptive abuse decision, the amount non-dischargeable may be included in the plan at the same percentage pay-back as other unsecured creditors, but if the nondischargeable debt is not paid in full under the Chapter 13 plan, the unpaid amount of the debt will still remain at the conclusion of the case. It is NOT a priority claim and as such, will not be paid in full under the plan.

While postpetition interest cannot be a claimed in a bankruptcy estate, there is some difference in case law as to whether when debts are nondischargeable, the postpetition interest is collectable from the debtor after the bankruptcy discharge.

The seminal case on this issue is Bruning v. United States, where the Supreme Court held that although postpetition interest on a nondischargeable tax debt could not be paid by the bankruptcy estate, it nevertheless survived bankruptcy and could be recovered personally from the debtor.

The Court reasoned that "interest is an integral part of a continuing debt," and becomes part of the debt itself. The Court distinguished between the disallowance of postpetition interest against the bankruptcy estate on a nondischargeable debt, and the creditor's right to recover postpetition interest on a nondischargeable debt from the debtor personally after the discharge has been entered.

Bottom line is that interest will likely continue to accrue on the non-dischargeable debt, the portion of the debt that is not paid down during the pendancy of the plan will survive discharge, and collection efforts on the unpaid principal and all post-petition interest accrued during the plan will begin in earnest after the discharge.

I would ask your attorney to make whatever inroads are necessary to settle this before it gets to hearing. You're going to have a tough time rebutting the presumption, based on the facts you've outlined here (you were insolvent enough that you needed to sell the purchased gift cards just to pay your bills), and it will cost big time over the long run if you lose.

[biotechsolution]

Is your attorney charging you to answer the adversary proceeding?? Most do not include that in the filing because it requires additional work and a court date in front of the judge, it's basically a mini-trial. I would guess that AMEX thinks they have a pretty good case because gift cards can treated almost like a cash advance. Worse case is you have to pay back the 5K after your chapter 13 ends and hopefully interest and late fees won't be tacked on at the end. How much is your attorney going to charge for the AP? Most tend to tack on at least another 1-2K to do an AP.