Consultation is date creditors use for accountability?

[momoftwo]

I had asked a question regarding the 90 day waiting period and someone answered that since I had consulted with an attorney a creditor would likely object and go back to the date of my consult.

How does consulting with an attorney over whether or not filing for bk is right for you confirmation to any creditor that this is the day they can begin to hold you accountable?

I still don't know if filing is right for me. I have many questions and concerns, and I still have some hope that I can pull out of this financial mess. I am just exploring my options and trying to educate myself on what is involved when filing for bk.

I just don't understand if I decide to file, whether it be in 90days or 6 months or a year, how could a creditor come back and say "well, you had a consult on this date so this is the date we will begin holding you accountable for contemplating filing for bk".

I have been in a financial strain for over a year now, but I have to this day been able to find a way to pay my bills every month on time. Filing for bk is definitely a last resort for me. I keep hoping for a miracle.

[HHM]

The date you consult is merely ONE piece of the puzzle that a creditor needs/could use to prove that subsequent charges were made without the intent to pay it back.

I would not worry about it too much.

The 90 day rule is based off the date your actually FILE for BK.

To go back further than 90 days to prove fraud, the creditor must demonstrate that you made the objectionable charge without the intent to pay back. If you made the charge AFTER you consulted with an attorney about filing BK, then that fact has some dis-positive weight, but the creditor still needs to prove other facts to win their case.

Don't worry about consulting an attorney vis-a-vis BK fraud.

[momoftwo]

Thanks for the information.

[diviaruba]

One of the twelve (non-exclusive) "Dougherty Factors" used in weighing a debt's non-dischargability* is whether an attorney had been consulted concerning the filing of bankruptcy before the charges were made. No mention is made of whether the attorney was in fact retained. I would be very careful about any charges even after free consultations.



*These factors are: (1) the length of the time between the charges made and the filing of bankruptcy; (2) whether or not an attorney has been consulted concerning the filing of bankruptcy before the charges were made; (3) the number of charges made; (4) the amount of charges made; (5) the financial condition of the debtor at the time the charges were made; (6) whether the charges were above the credit limit of the account; (7) whether the debtor made multiple charges on the same day; (8) whether or not the debtor was employed; (9) the debtor's prospect for employment; (10) the financial sophistication of the debtor; (11) whether there was a sudden change in the debtor's buying habits; and (12) whether the purchases were made for luxuries or necessities. See Dougherty, 84 B.R. at 657.

[momoftwo]

What if I decide not to file and in 6 months or a year find myself no better off and need to file for bk. Are you saying that creditors would go back to an origianl consultation? I am not even sure that the attorney I went to is the right attorney for me should I decide to file. I would like to meet a few attorneys and then make a decision. Do the creditors look at the time of consultation with the attorney you actually use in bk or the first attorney you ever visited? How would they know about an attorney visit if that is not the attorney you use in bk?

[HHM]

You are worrying about this too much. The date your visit your attorney is NOT that important in the grand scheme of things.

You need to focus on your financial situation, you are letting your mind waunder to unimportant issues.

[momoftwo]

I know you're right. Thanks. I feel like I'm having a nervouse breakdown. I can't think about anything else. I even dream about it. I am worried about the reprocussions of filing bk now or wondering if I should wait until the smokes clears so to speak. I haven't meant to do anything fraudulant, but I'm not sure the creditors would look at it that way. I just don't know what to do.

[Bit_Image]

I have often wondered this question. Does anyone know how the credit card companies actually know what date that you first consulted with an attorney? Is there some database were this information is kept, or is it listed in your credit report that you attended a consult? Obviously, if you used only 1 attorney to consult, and then filed, the attorney would record this information. However, if you had a free consult and decided not to file, then filed a year later filed with a different lawer, how would anyone know that you met with an attorney a year ago????

[HHM]

They ask you at the 341 meeting when you are under oath, or at a 2004 exam (a deposition), or as a written interrogatory as part of the discovery process.