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Will this bring on an adversery proceeding or motion to lift the automatic stay?

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    Will this bring on an adversery proceeding or motion to lift the automatic stay?

    Alright, I got my first issue posted on the board and now I have the other one which complicates my bankruptcy filing even more...but weighs heavily on my conscience due to the nature of the debt. My posting this is not for all of you to judge me for how I incurred this debt but to get feedback and help others through my experience, so here it goes:

    My father passed in Jun 06. I was the executor to his estate and was also a joint account holder to his checking account. I kept his pension deposits for about a year and then closed the account. About a year later, the pension fund eventually contacted my estate attorney demanding I pay them back. My estate attorney worked out a deal where I make an initial lump sum payment and repay the rest of the debt on a monthly basis. I signed and notarized an installment note and have been paying on this debt since last year. I owe 12k on the debt.

    The note does not say anything about the nature of the debt. It says "FOR VALUE RECEIVED, the undersigned promises to pay to the order of X at X or at such other place as the payee or legal holder hereof may in writing appoint, the principal sum ...." It goes on to say that they can get a judgement for default.

    My attorney advised to list the debt as unsecure non priority since, even though it is fraudulent, I have not been found guilty in a court of law. He was surprised that the pension fund agreed to settle it this way and warned that the pension fund may file a motion to lift the automic stay.

    I called my father's estate attorney and asked him if he thinks the pension fund would challenge the bk and he said that he doesnt think they have grounds to do so considering they had me sign an installment note to settle it. Since I am filing ch 13, they will get paid something. He added that the balance due is not worth sueing since they live in the mid-west and I live on the east coast.

    Although I am filing ch 13, I intend to continue paying the fund after I file even though the plan will pay them. If the trustee doesn't say anything about my 401k deduction I will reduce my contribution to free up disposable income to pay the fund

    Your thoughts and/or experiences?

    #2
    Reducing your 401K to free up DMI to pay the fund isn't a good idea. When you reduce the 401K, that DMI should now be redirected into the plan. If you get confirmed I wouldn't want to mess with anything that possibly makes your case stick out or have to be reviewed further.

    It seems ambiguous. Would fraud issues pass to the promissory note? If there's no admission of fraud in the note, is it anything more than just a regular unsecured? You didn't lie when singing the note, I assume.

    My concern would be is it cheaper and easier for them to pursue criminal charges against you? I know nothing of your state and it's laws, but is it possible they could eventually get criminal fines or restitution that can't be discharged for less in legal costs than filing an adversarial proceeding in your BK case?

    I would just make sure to run it by one of your lawyers to ensure it's either not a possibility or they've already accounted for it in their plans.



    Best of luck.

    Comment


      #3
      In a 13 the fraud issue would be put to rest. You are making your best effort to repay them, although it could be as low as 0%. You may have an income/IRS issue for that money though...
      7-2-2009 Filed
      8-28-09 341 Concluded, no assets
      10-28-09 DISCHARGED/CLOSED!!!!

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        #4
        Originally posted by jadams View Post
        Reducing your 401K to free up DMI to pay the fund isn't a good idea. When you reduce the 401K, that DMI should now be redirected into the plan. If you get confirmed I wouldn't want to mess with anything that possibly makes your case stick out or have to be reviewed further.

        It seems ambiguous. Would fraud issues pass to the promissory note? If there's no admission of fraud in the note, is it anything more than just a regular unsecured? You didn't lie when singing the note, I assume.

        My concern would be is it cheaper and easier for them to pursue criminal charges against you? I know nothing of your state and it's laws, but is it possible they could eventually get criminal fines or restitution that can't be discharged for less in legal costs than filing an adversarial proceeding in your BK case?

        I would just make sure to run it by one of your lawyers to ensure it's either not a possibility or they've already accounted for it in their plans.



        Best of luck.
        I live in NJ and the pension fund is in Illinois. I personally consider the debt fraud. My attorney referred to it as theft and for purposes of filing classified it as unsecure. There is no mention of the word fraud or no reference made to the nature of the debt in the note. The note simply starts with the section I restated in my initial post and goes on to say that if I default they can confess judgment for the balance due, attorney fees and collection costs.

        There is a lot of legal mumbo jumbo about what will happen if I default, but it looks like a canned agreement: for services rendered, you owe me, and if you dont pay I will take you to court

        Comment

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