Adversary action - going to court

[inhocknow]

Hello folks, thanks for all of your help. If a creditor takes adversary action and you opt not to settle out of court, whats the best defense that you can come with? Like may on here, I'm worried about some recent cash advances about 80 days before filing. I know its outside of the 70 days but the creditor still might object. Whats the best defense? What does all this solvent and not solvent thing mean? Thanks folks for your great and fanstastic help. Thank you.

[danaf]

i don't know what the best defense might be but insolvent at the time you took the money means that when you took it, you didn't have the means to pay it back. if they can prove that, then they've got a good case.

although i feel they are partly to blame when they know what your debt ratio was when they lent you the $$$.

[leftyf]

How much is that costing you in attorney fees, if I may ask? I will have to pay $250.00/hour if any of my creditors take adversary action...that's crazy!

[jp2861]

The burden of proof lies with the creditor, but I can relate to you wanting to have a story lined up. The problem with filing right after the time limit is it looks like you took the money knowing that you'd be filing. That's the whole point of putting as much time as possible between the cash advance and filing date. More time creates the illusion that you had all intentions of paying back the advance.

Hopefully, you didn't take the cash advance after you retained your lawyer. That would be a hard one to explain.

[BurgerKingVII]

Did you make any repayments -- even the minimum -- toward the cash advance before you filed BK? There's at least one reported case where the Court of Appeals found that making payments tends to negate a claim of fraud. (I wish I had the name or citaton handy... I know it's a 9th Circuit case.)

[a.fla]

My lawyer said that the trustee didn't look at credit cards statements, just bank statements. So how would a credit card company know when you retained your lawyer? They don't have the right to check out your bank statements, correct?

[keepmine]

My lawyer said that the trustee didn't look at credit cards statements, just bank statements. So how would a credit card company know when you retained your lawyer? They don't have the right to check out your bank statements, correct?

If an adverserial proceeding is filed, the question of when you first spoke with a lawyer regarding bk will be asked.

[a.fla]

What is an adversial proceeding?

[a.fla]

Also, what's the worse that can happen if they find that I used credit cards for necessities after retaining a lawyer because my husband hadn't gotten his first check from his new job?

[keepmine]

What is an adversial proceeding?

The subject of this thread.

Worse case, if the creditor prevails, the debt to that particular creditor will not be discharged.

[a.fla]

Thanks Keepmine, obviously not the in-depth response I was looking for being that I'm new or I wouldn't have asked what adversial proceeding was, right?????

[oldbaddebts]

An adverserial proceeding is a court case within the bk proceeding. Typically related to a creditor claiming that you should not be able to discharge the debt you owe them. It is something that rarely happens, but nearly everyone that files spends the entire time from filing to closing nervous that it might happen to them.

If you need more of a clarification, we are all here to help. Best thing I can say to someone new is make a strong effort to read, read, and read. There are several good books that are mentioned in the forum, as well as people from all walks that have been where you have been or are now. Even if you plan on getting an attorney, this is still a big deal in YOUR life, and information creates confidence, creates a slightly less stressful time.