adversary proceedings

[danohio2831]

i got a discharge, but there ws a objection for a cash advance i took out for 10,000. i am down to the wire and have to submit a answer to the court. does anyone know how to do this?

[HHM]

First, do you have any real chance of defending the claim...(sounds like you must have filed pro se, i.e. without an attorney, is that correct).

What was the exact date you took out the cash advance and what is the exact date you filed BK?

Typically, the credit card company will accept a reduced amount in settlement and allow monthly payments to avoid having to go to court.

However, to file an answer, you must respond to each of the enumerated claims contained in the creditors Objection to Discharge. There are 3 ways to respond to each claim...
1. Admit (i.e. you admit that the statement is true).
2. Deny (i.e. you deny that the statement is true).
3. Lack sufficient knowledge (i.e you do not have enough information to determine if the statement is true or false).

So, for example. I would expect the Objection to make a claim that.
(n)...Debtor opened an account with xyz creditor on abc date.
odds are, that statement is true, and you know that it is true...so you would write.
"Answering paragraph (n) of Creditor's Objection to Discharge, Debtor admits the allegations contained in paragraph (n)"
or, if you lack sufficient knowledge...
"Answering paragraph (n) of Creditor's Objection to Discharge, Debtor lacks sufficient knowledge and information to form a belief as to the truthfulness of the allegations therein, and on that basis deny the same in their entirety"
or, if you know the allegation is false
"Answering paragraph (n) of Creditor's Objection to Discharge, Debtor denies the allegations contained in paragraph (n)"

You only admit an allegation if you "know" the statement is true, conversely, you only deny an allegation if you "know" the statement is false, otherwise, you use the "lacks sufficient knowledge" clause.

You type a response for each of the enumerated paragraphs in the Creditors Objection, and file it with the Bankruptcy Clerk of Court (i.e. you will have to go down to the Clerks Office, and there is probably a fee associated with filing an answer).

Howver, before filing an answer, you may want to contact the attorney for the creditor and feel out what kind of settlement is available if any (however, if you took out the cash advance within 90 days of filing BK, you are SOL and will have to payback the entire amount). Generally, you might be able to get the creditor to accept 50% with a payment plan of 12 to 18 months (perhaps a little longer if the final settlement is a large amount)

[no_it_all]

You can also <partially>admit to a statement. To Wit:

Defendant is three months in arrears of his $578 monthly car payment

An answer might state:

Defendant agrees that his payment is $578 monthly put lacks sufficient knowledge as to the rest of the statement in paragraph 3.

It would be hard to claim you didn't know your monthly payment amount, but not everyone is <exactly> sure if they are three or four or two months behind.

[HHM]

Generally, if the Objection is well formatted, it will contain only ONE factual allegation per enumerated statement...but that is not always the case, so you're correct, you can partially admit, or deny etc.

When you partially admit a claim, you want to state specifically what you are admitting, so for example.

"Answering paragraph (n) of creditors objection, debtor admits that the monthly payment is $578 per month, but as to all the remaining allegations of paragraph (n), debtor lacks sufficient knowledge and information to form a belief as to the truthfulness of the allegations therein, and on that basis denies the same in their entirety."

I just didn't want to make matters more complicated, you are generally safe to deny or claim lack sufficient knowledge even if part of the statement is ture. Remember from grade school, if any part of a statement is false, the entire statement is false

[SinkingFast]

I looked back in Dan's old posts.

http://www.bankruptcyforum.com/showt...&highlight=110

Post #10. Dan took an $11000 Cash Advance 110 days prior to filing.

Dan did not file Pro Se, but his attny lost her license to practice law in the middle of his 60 day Objections period.

So, essentially, Dan is currently Pro Se as far as handling this Creditor's Objection.

[HHM]

I looked back in Dan's old posts.

http://www.bankruptcyforum.com/showt...&highlight=110

Post #10. Dan took an $11000 Cash Advance 110 days prior to filing.

Dan did not file Pro Se, but his attny lost her license to practice law in the middle of his 60 day Objections period.

So, essentially, Dan is currently Pro Se as far as handling this Creditor's Objection.

Ouch...if he goes the distance on the objection, he will probably lose. Much will depend on what he used the cash for, but its so close to the deadline, and he probably had a mountian of other debt, his odds of succesfully defending this objection is probably 70/30 against.

His best option is to see if the other side will accept 50% with a payment plan that he can afford.

[9877donna]

I looked back in Dan's old posts.

http://www.bankruptcyforum.com/showt...&highlight=110

Post #10. Dan took an $11000 Cash Advance 110 days prior to filing.

Dan did not file Pro Se, but his attny lost her license to practice law in the middle of his 60 day Objections period.

So, essentially, Dan is currently Pro Se as far as handling this Creditor's Objection.

I don't get it.I thought as long as you were past the 90 day mark you were safe from this kind of action?? How can they file an objection to a cash advance that was done more than 90 days before the date they filed BK?
I know the BK rules and this does not fall within the boundries.
Can someone explain?
Thanks.Donna

[HHM]

I don't get it.I thought as long as you were past the 90 day mark you were safe from this kind of action?? How can they file an objection to a cash advance that was done more than 90 days before the date they filed BK?
I know the BK rules and this does not fall within the boundries.
Can someone explain?
Thanks.Donna

Ok, the 90/70 day exception means that any charge or cash advance made within 90/70 days of filign BK is PRESUMED fraudulent. Meaning, all the creditor has to do is file their objection to dishcarge of their debt and demonstrate to the court that the charge or cash advance was made within those time frames, case closed, creditor wins.

However, outside of those deadlines, a creditor can still claim fraud, but they have to affirmatively "prove" that you committed fraud (note, BK fraud is unlike any other type of fraud, it really does not require mal intent). Probably the best examples of this non-timeline related fraud would be, (1) applying for and getting a new credit card eight months before filing BK, charging it up, but never making a single payment, (2) making a false statement on a credit application, i.e. overstating your income, (3) buying nothing but luxury goods, i.e. jewelry, vacations, cash advances at casinos, within the year before filing BK. However, there are more subtle ways to prove fraud as well. One of the most common ways creditors do this is to make an argument based on your financial history, i.e. you already owe $50,000 in debt, you only make $x amount of income, thus, you had no really expectation or ability to pay back the debt, hence, fraud.

[danohio2831]

i had receipts for everything the money went for,

i had another attorney looking over it and he has done nothing to help me, he said they had agreed on 7,000 over a long period of time and a payment of 100 to 150 a month. i said i would take it and he has not said anything. when i call he says he has not heard anything.

this is my gripe

1 the court ordered the two partys to work together for agreement to not have to go to court. i have done everything in my power to settle out of court. the creditor that objected to the discharge of the debt is stalling.

i started contacting them, then my attorney for 40 days now, and they just stall

2 i am going over my medical records, i believe i was on a new medication ( i have severe depression and a bipolar disorder and do not think straight alot of the times) i have been positively diagnosed with attention deficate disorder and hospitalized for suicidal and homicidal depression.

with this medical documentation, they have to prove at the time i took the cash advance i could pay it back

would it help if i honestly was under a severe depression mode?

thanks to all

[HHM]

Well, what did the money go for...

A mental capicity defense is probably not a very good one in this instance...courts are generally hostile to it, plus, you will have to call (and pay for) an expert to testify on your behalf, medical records are not enough. You will need someone to testify and connect the dots for the judge. Just like in criminal cases where, to prove insanity, the defendant must demonstrate that they could not distinguish between right and wrong, you would have to do essentially the same thing...that your conditions are such that it impairs your financial judgment as to what is in your best interests and if I had to guess; ADD, bipolarism, and depression aren't going to cut it. Sorry...but I could be wrong...but its a tough call.

[danohio2831]

SO I AM SCREWED

WELL I WAS OUT OF WORK FOR 1.5 MONTHS, DUE TO MENTAL ISSUES DURING THE CASH ADVANCE, AND GOT LAID OFF

I GUESS I AM SCREWED

SO IF THEY WIN, WILL THE COURTS SET UP A PAYMENT PLAN, I DO NOT EVEN HAVE A JOBE YET, AND MY UNEMPLOYMENT IS RUN OUT


ALSO CAN THEY GO AFTER MY WIFE, sorry about caps lock, she may have been a authorized user, but i took the cash advance and the credit card was in my name

also if they go by my income, will they take into medical, daycare, and nessecery issues then set a judgement payment

thanks

[HHM]

Don't jump to too many conclusions here...I am trying to give you a realistic picture of what is likely to happen, but every court has its idiosyncracies.

No matter what, FILE THE ANSWER...if you don't file the answer, the credit will win no mater what...at least by filing the answer you create "some" uncertainty for the creditor and may be able to get a settlement.

At the same time, bad judgment is not necessarily fraud...so you have some hope...it would, of course, be better if you had an attorney that was really helping you.

At least, FILE THE ANSWER.

[danohio2831]

At least, FILE THE ANSWER.[/QUOTE]

that is what i was wondering on how to do, the attorney wants 2000 to fight it, i would rather go alone than rack up more debt, he says the case is strongly against me

so al in all, how do i file a answer, can it be verbal or do i have to write it?

dan

[FoolAndHisMoney]

error

[FoolAndHisMoney]

Do you have a pacer account? You can probably run a report to see others in your shoes and get a sample letter. Since your attorney thinks you will lose anyway maybe you can pay him much less then $2000 to settle the debt with the creditor. IMO it looks as if settling will be in everyones best interest.