Creditor Attorney threatening Adversarial

[DontBother]

My attorney just called. She said she received a letter from an attorney for Wells Fargo Bank regarding my credit card that's included in my ch 7. We took out a $4000 cash advance on 9/10. We made 1 payment on it, then filed BK7 on 11/30.

The letter offers a settlement for $3200.

My attorney says we have a few options:
We can go back and offer a lower settlement, such as $2000 payable in monthly payments. Or we can wait and see if they really do file an adversarial action. She said even if they do file, they're still usually willing to negotiate a settlement... The deadline to file adversarials is 2/26.

What do you guys think would be my best course of action?? I really have no money to pay them, either in lump sum or monthly (I may be able to swing, say, $40 a month).

I'm thinking just let the time play out, and see if they really do file anything. I filed shortly after the 70-day rule expired, so the burden of proof would be on them to prove fraud. However, my attorney said that's true, but it would cost about $2000 for her to defend me in an adversarial trial. Is this something that I could defend myself in??? I certainly don't have more money to pay my attorney!

[DontBother]

Oh yeah, the attorney is Jerome Yelsky. Here's his website http://www.cherinandyelsky.com/attorneys_2.htm

[aachudneymiles]

you would need to talk with your att. about that we are not suppose to give legal advice.. plus you paid the att make your dollars work for you.

[HHM]

Well, you can try the waiting game, but you are "most likely" going to LOSE that objection nine ways to Sunday. What was the cash advance for?

There is a thread in the FAQ that talks about objections.

If you really can't pay a settlement, you might as well make them file an objection and see what happens. If the creditor wins, the amount becomes a judgment. If you settle, and then miss a settlement payment, then the whole amount becomes due anyway.

[DontBother]

Cash advance was to consolidate a few other credit cards. I believe we kept $1000 in our checking account "just in case" something came up. Later, when we decided to file BK, the attorney fee "came up".

Well, you can try the waiting game, but you are "most likely" going to LOSE that objection nine ways to Sunday. What was the cash advance for?

There is a thread in the FAQ that talks about objections.

If you really can't pay a settlement, you might as well make them file an objection and see what happens. If the creditor wins, the amount becomes a judgment. If you settle, and then miss a settlement payment, then the whole amount becomes due anyway.

[jp2861]

There's no way you'll win that if it goes in front of a judge. They'll look at it like some of your creditors got paid at the expense of Wells Fargo. You also can't take cash advances to pay your attorney, so you may want to watch what you say in that respect. I'd negotiate back and forth as long as they'll put up with you and see what happens. If they don't agree to something you can swing, then all you can do is sit back and see if they actually move forward. I guess the real question is why your lawyer didn't advise you to hold off for a while.

[DontBother]

She did, but she only advised me to wait until the 70-day rule expired.

There's no way you'll win that if it goes in front of a judge. They'll look at it like some of your creditors got paid at the expense of Wells Fargo. You also can't take cash advances to pay your attorney, so you may want to watch what you say in that respect. I'd negotiate back and forth as long as they'll put up with you and see what happens. If they don't agree to something you can swing, then all you can do is sit back and see if they actually move forward. I guess the real question is why your lawyer didn't advise you to hold off for a while.

[HHM]

Yeah, $4,000 is the borderline amount...maybe your attorney is familiar with how this lawyer deals with objections, but you barely waited 20 days from the expiration of the 70 day period...AND you did so based on the advice of an attorney...(that IS fraud).

At this point...you need to look at your budget and see if there is any amount you can actually settle...keep in mind, most creditor attorney's are authorized to settle at 50% of the balance and accept payment plans out to 12-18 months. So, if you had the rest of your unsecured discharged, could you afford $112 per month for 18 months (that would roughly be a $2000 settlement). If so, you may want to consider doing that. Otherwise, your options are to do nothing...defend yourself (since you don't have the money to pay your attorney to defend you, and a defense is probably pointless anyway), and see if an objection gets filed. If the objection does get filed, the FULL amount will be granted, and they can eventually garnish your wages and you can NEVER discharge this debt in the future.