I am going to screm....NOW on Xanax pls help

[CarleyJo]

"Ok....went to 341.... well what do you know our attorney who I TOLD we filed in October 05...(told him to look it up on Pacer even) got a notice handed to him by the trustee saying notice of objection by the STUPID truck (credit union) because we DONT qualify for a 13 since we filed in OCtober. We went through this with him...over and over and now he is shaking his head saying he doesn't know what to do ..he thought we filed in Jan 05. Remember this is the same attorney that supposely looked at our truck for the 910 cram down and was off by a few days on that. Literally I am on xanax...I can't afford all this stress....so I dont' know what to do...my attorney is asking me what to do? Hellooooo I don't know a damn thing about BK...we went through everything with him.....adn this credit union that has/had the loan bk attorney that keeps objecting was a trustee so you can forget that he won't be on top of everything. You guys I am so stressed...upset feeling my life is in the ditch and don't have ANY legal help. We needed a new car (if we gave back said truck) and can't find ANYONE that can help. My attorney's answer buy a 3-5 k vehichle ..hello if I HAD that we wouldn't have been behind in payments!!!!!!!!!!!!!!!!!!

[rrockinggramma]

ok so you filed a chapter 7 in 2005? and now in 2009 you "can't file" a chapter 13? You can't get discharged until 4 years after the previous discharge. So clarify this for me please. Then we can go from there. .

The credit union is all wet. You can file a chapter 13 but have to wait 4 years for discharge. Since you won't be receiving a discharge right away, it should all be good.

The credit union pulls this crap all the time. If I were you I would 722 the vehicle and screw the credit union. We did that for the credit union here and even though they were mad, they couldn't do a damn thing about it.

[CarleyJo]

Thank you!!!!! Ok so we filed in October 2005 prior to law changes...were discharged in Jan 2006. The former Trustee now CU bk attorney said we don't qualify since we filed in 05....I dont' understand this.

[rrockinggramma]

Effect of prior bankruptcies
While you can only file Chapter 7 every 8 years, you can file a Chapter 13 bankruptcy even if you got a Chapter 7 discharge less than 8 years ago.

A strategy frequently used is to file Chapter 7 to discharge those debts that are dischargeable, and file a subsequent Chapter 13 to repay those debts that were not discharged in Chapter 7. This sequence is sometimes called a "Chapter 20", a 7 plus 13. In fact there is no Chapter 20 of the Bankruptcy Code. This approach is limited by the provisions of the 2005 amendments which allow a discharge in a subsequent 13 only when specified time has passed.

I also read that it is set by the local bankruptcy rules of your district. So what district are you filing in (what state etc) The general rule is you can file but not receive a discharge until at least 4 years since the last one so you might need to research BK law in your state and area and then get your attorney to fight for you.

Ohhhh so the CU attorney is telling you this. LOLOLOL He is full of it. But check out your local rules. You can't get DISCHARGED until 4 years have passed (at a minimum) LOLOLOLOL CU are the worst to work with in BK.

[AngelinaCatHub]

I agree with Rgramma, but get another attorney first please. Even a stupid attorney does not state to his client that he does not know what to do. They are supposed to research a way of doing it. That statement is outrageous. Fire him and move on to the 13. 'Hub

[CarleyJo]

AND it gets better....today my attorney said the CU BK attorney filed a motion (this was from last week) to deny our plan. Ok so the hearing is for the 10th.....he had the nerve to say...he didn't know what to do because we need to stall until the October filing date passes dismiss and refile. He said maybe I should be honest with the court and tell them we are going to refilel in October. UMMMMMMMMMMM who the hell's side is he on? He said he coudlnt' think of an excuse to ask for an continuance of the motion. SOOOOOOOOOOOOOOO I told him I just started a new job monday..we don't know what my income is and ask for a continuation based on needing to redo our schedule. Is this normal???? Then he said ..do you have access to pacer to get the correct date you file in 05 ...I said no..he then said " I could try and look it up" WHich is what I suggested in July ...I am going to screm.

[jb300]

OMG... I don't know how to deal with your issues but your attorney is enough to give you stress. You have got to get a new one, really. If you do nothing else find another attorney.

[AngelinaCatHub]

AND it gets better....today my attorney said the CU BK attorney filed a motion (this was from last week) to deny our plan. Ok so the hearing is for the 10th.....he had the nerve to say...he didn't know what to do because we need to stall until the October filing date passes dismiss and refile. He said maybe I should be honest with the court and tell them we are going to refilel in October. UMMMMMMMMMMM who the hell's side is he on? He said he coudlnt' think of an excuse to ask for an continuance of the motion. SOOOOOOOOOOOOOOO I told him I just started a new job monday..we don't know what my income is and ask for a continuation based on needing to redo our schedule. Is this normal???? Then he said ..do you have access to pacer to get the correct date you file in 05 ...I said no..he then said " I could try and look it up" WHich is what I suggested in July ...I am going to screm.

I just cannot believe the incompetence of this guy you have. It is my opinion that you may state: Mr. xxxxxxx, I hired you to do a job, I gave you all the info I can. You expect me to be your equal in what to do in this situation. If I had that knowledge, I would not have needed you at all. Now sir, you state, "You do not know what to do????"

Sir: I have a good reason, not only to write the Judge a "Motion to dismiss" you and go pro se, or with another, but competent attorney, with an enclosed copy of my complaint to our states Bar Association, within the Motion to "enlarge time to prepare", and ask this Judge for "Sanctions" against you for your obvious lack of interest, knowledge, or competence.

This is near to what we did as we in no way had a jerk like you do, but were very unhappy with our lawyer who did not inform us of a damn thing. However, the Judge stated that we could pursue, but the case was over and so we withdrew.

You really NEED to get rid of this jerk. My opinion. 'Hub

P.S. Get your money back.

[rrockinggramma]

research the bk code online and then print out the section that talks about refiling. It is the CU attorney that is jerking his chain not the trustee. So insist that the plan continue. Now the CU attorney is protecting his client and he sounds like a real jerk.

Now you go to the hearing on the 10th and you go armed with the bk law that states you can file a chapter 13 anytime just not receive a discharge until 4 years has passed. Since you are just beginning the plan, that is not a problem.

Then at this hearing file the motion to fire this attorney. You can get the forms online.
The court may deny a chapter 7 discharge for any of the reasons described in section 727(a) of the Bankruptcy Code, including failure to provide requested tax documents; failure to complete a course on personal financial management; transfer or concealment of property with intent to hinder, delay, or defraud creditors; destruction or concealment of books or records; perjury and other fraudulent acts; failure to account for the loss of assets; violation of a court order or an earlier discharge in an earlier case commenced within certain time frames (discussed below) before the date the petition was filed. If the issue of the debtor's right to a discharge goes to trial, the objecting party has the burden of proving all the facts essential to the objection.

In chapter 12 and chapter 13 cases, the debtor is usually entitled to a discharge upon completion of all payments under the plan. As in chapter 7, however, discharge may not occur in chapter 13 if the debtor fails to complete a required course on personal financial management. A debtor is also ineligible for a discharge in chapter 13 if he or she received a prior discharge in another case commenced within time frames discussed the next paragraph. Unlike chapter 7, creditors do not have standing to object to the discharge of a chapter 12 or chapter 13 debtor. Creditors can object to confirmation of the repayment plan, but cannot object to the discharge if the debtor has completed making plan payments.

Can a debtor receive a second discharge in a later chapter 7 case?

The court will deny a discharge in a later chapter 7 case if the debtor received a discharge under chapter 7 or chapter 11 in a case filed within eight years before the second petition is filed. The court will also deny a chapter 7 discharge if the debtor previously received a discharge in a chapter 12 or chapter 13 case filed within six years before the date of the filing of the second case unless (1) the debtor paid all "allowed unsecured" claims in the earlier case in full, or (2) the debtor made payments under the plan in the earlier case totaling at least 70 percent of the allowed unsecured claims and the debtor's plan was proposed in good faith and the payments represented the debtor's best effort. A debtor is ineligible for discharge under chapter 13 if he or she received a prior discharge in a chapter 7, 11, or 12 case filed four years before the current case or in a chapter 13 case filed two years before the current case.


So according to the last statement, the file date is important. So you filed in Oct of 2005 so the rule is 4 years. The question then is, that does mean you can't have a discharge at all or not until after the 4 years has passed.

If I were you I would be calling a couple of other attorney's to get their opinion. But I would still go to the hearing and see what the judge says.

[CarleyJo]

Thank you everyone....we paid $1400.00 to do this...and I can't afford to pay another. We should have filed pro se that is for darn sure. I am sure no attorney wants to lie to a judge but we do need more time (stall tactic) so we can motion to dismiss and refile in October. He said we need a discharge from what we filed or the CU can come after us for the defiancy? I am so lost yet learning everyday thanks to you all. I have never heard an attorney not ask for a continuance on a motion..seriously?

So lost..so confused and stress. This does not help my ulcerative colitis at all...it has reared its ugly head. I don't understand why we can't motion to dismiss now...then in October include the defiancy of the balance of the car sold at the auction (since they will take it back)..he said we need a discharge and a 910 cram down. The CU attorney was a trustee so any wrong move and my attorney is worried we will be dismissed with prejudice. Mentioned something about missing our first payment...but that seems risky to me? He said the BK court would dismiss w/o prejudice for a missed payment?

[TooMuchCredit]

Thank you everyone....we paid $1400.00 to do this...and I can't afford to pay another. We should have filed pro se that is for darn sure. I am sure no attorney wants to lie to a judge but we do need more time (stall tactic) so we can motion to dismiss and refile in October. He said we need a discharge from what we filed or the CU can come after us for the defiancy? I am so lost yet learning everyday thanks to you all. I have never heard an attorney not ask for a continuance on a motion..seriously?

So lost..so confused and stress. This does not help my ulcerative colitis at all...it has reared its ugly head. I don't understand why we can't motion to dismiss now...then in October include the defiancy of the balance of the car sold at the auction (since they will take it back)..he said we need a discharge and a 910 cram down. The CU attorney was a trustee so any wrong move and my attorney is worried we will be dismissed with prejudice. Mentioned something about missing our first payment...but that seems risky to me? He said the BK court would dismiss w/o prejudice for a missed payment?

I think from what I read is you don't have to dismiss and refile in October. the CU is wrong and their objection would get thrown out. If your Ch. 7 was filed in Oct 2005 and disharged in Jan 2006, that means you can't have another discharge within 4 years, so not before Oct 2009. However, you are now filing Ch. 13, your plan would be atleast 36 months and you would not receive a discharge until after that time...so 2012. While your lawyer should know this, they're lawyers and not always that great at math ;-) Present this information to him and just see if he changes his tune.

[rrockinggramma]

Has the trustee objected to your case. I would go to the hearing on the 10th and see what plays out. The law intrepretation depends on your district and your local rules. It could be in your favor here and the CU attorney is just trying to scare you.

You have given the car back already, correct?
Or are you trying to keep it?

Yes you can dismiss and refile in October. The credit union could make your life miserable until then ( I would definitely not dismiss though until after the hearing)

If you gave the car back, the credit union can harass you to pay the deficiency balance on the car

If you have the car and your payments are not current, then they could reposess. So I think what the attorney is trying to say is that this whole thing started because you crammed down the car to the FMV of the car and what he is trying to say is that without a discharge, the credit union can repo the car because you are "behind" on it if you dismiss this case.

So the credit union has filed an advesarial action against you regarding the 910 rule and they also are trying to say that you can't even file (which is wrong) because of a chapter 7 a little less than 4 years ago.

So they are upset ( I wanted to use another word but decided agains it) and are making your life hell. That is what credit unions do. It is nasty, trust me.

So again

question 1. HAS THE TRUSTEE OBJECTED TO YOUR FILING?
The crux of the matter here is whether or not you will receive a discharge even after your plan is complete in several years because you FILED before the 4 years had passed. THIS IS WHAT YOU NEED TO FIND OUT. I know you can't afford another attorney HOWEVER you can call a few on the phone and ASK the question "If I filed a chapter 7 in Oct of 2005 and have recently filed a CHAPTER 13, does our local bk rules interpret the law to be that no matter what I won't receive a discharge because I filed just prior to the 4 year time limit OR because I won't actually be DISCHARGED for several years, will I be eligible. So does the 4 years go from FILE DATE to FILE DATE? that is the question.

If the answer is YES, file date to file date, then you will have to make a decision. And this one has to be a logical one and one based on reason and what is best for your situation and family.

And I believe that your situation was that obtaining another vehicle was not possible for you at this time. I also went through this and ended up going to a place for a vehicle where they do not pull your credit and purchased an older car and held it together as best I could. I had to pay every 2 weeks and if I didn't pay they shut off the car. It was not easy but I did what I had to do.

It sounds like this credit union will never work with you again no matter what happens here so if the answer to the above question is YES (file date to file date) then I would

1. give the car back to the credit union and tell them to shove it
2. dismiss and refile in October ( but not until after the hearing, it takes time to get the dismissal) And I would be soooo ready to refile in October.
3. If you go the above route, be prepared for phone calls from creditors and a judgment from the credit union regarding the car

Now if the answer to the above is NO it isn't from file date to file date, then tell the credit union to shove it and proceed.

Keep us posted and hang in there. This too shall pass. . . . .