*** AP Filed Against Me - Please Help!! ***

[frogger]

OK so I finally just heard back from the bank's attorney. They submitted a counteroffer of 60% which they are claiming to be about $5000 with monthly payments of $100. I feel that it is a little high and I am waiting for them to put it in writing.

Plane tickets and jewelry...........

5k @ 100 per month might be a bargain compared to legal costs.

[catleg]

I think I would counter offer 36 months at $100 a month = 3600 total but be prepared to accept their original offer. It's not too terrible that it's worth making a big fight over.

[Brazzy]

From their point of view because its past 90 days the creditor must prove that you had no intent of paying it back. Thats tough to prove on their part. As previously stated you could easily fight this and win. However it will cost you. Typically it simply easier and cheaper to just settle. Some creditors will file AP cases knowing they dont have much of a case but they know that they will get something back just because of the fees associated with the creditor fighting the case.

[TurnThePage]

When I filed BK, my paralegal asked for the prior 6 months of income which came out to the figure that they presented on the AP ........ I made a minimum payment of like 30 or 40 in April, then they raised my APR through the roof in May which also made it very hard. I filed BK at the end of December 09.

If I read this correctly, you made only one minimum payment in April? They would have no case if you made every payment up to when you filed. I don't know all the details but I would definitely settle. Unfortunately, $7000 of purchases when you were clearly insolvent (as posted on your Bankruptcy Schedules) including travel expenses & jewelry will most likely be considered "luxury items" to the Court. Remember that the Creditor's "burden of proof" is only a preponderance of the evidence. Sorry, it seems risky to litigate this ... but @ least you get a 40% discount anyway.

Disclaimer: These are my opinions only and do not constitute legal advice.

[TurnThePage]

On a side note ... you might be able to settle for even less ... maybe about 40 - 50% if you offer a lump sum cash payment. The Creditor will probably accept as they would prefer to avoid litigation, too.

[AZJack9]

Thanks for all of the input. I counter offered and I am looking to see if they will take $3600 within 120 days. I think they may accept it because of the fact that I am going to pay it off much faster.

I explained to the attorney that 60% is too high considering the fact that pre-charge off customers receive these types of offers all of the time. Charge off settlements are often 20-35%.

The attorney is supposed to get back to me today. If they don't accept, I don't know if I will accept their offer of $5400 over 54 months or not.

[AZJack9]

The bank accepted my counter offer @ $3600. They said I have to accept the default judgement of the $9K which includes the terms of the settlement.

[catleg]

Nice going.

[sailing2013]

If I read this correctly, you made only one minimum payment in April? They would have no case if you made every payment up to when you filed.

Just curious Turn, why do you believe they wouldn't have any case if he had continued to make payments up until he filed?

I am currently debating if I will file, and, since I had used a card last month--coincidentally a First National Omaha as well--the threat of an AP has a bearing on my decision.

Not that I made the purchases in bad faith, mind you, just that getting hit with an AP regardless of innocence or guilt can be expensive. And a few of my purchases were for airline tickets. (further complicating matters, the tickets would be unused when I file.) I went from a zero balance to $4.5K in a matter of weeks. And, like OP, I would be filing about seven months after my final charge.

I am in a position to make payments until I file--if I file, it will be in July--and, since I need not make a decision to file or not until April, I will continue to make payments until at least then.

I know no one here is a future-teller, but am trying to grasp the likelihood of an AP being filed.

Cheers,
Steve

[ValleYum]

Just curious Turn, why do you believe they wouldn't have any case if he had continued to make payments up until he filed?

I am currently debating if I will file, and, since I had used a card last month--coincidentally a First National Omaha as well--the threat of an AP has a bearing on my decision.

Not that I made the purchases in bad faith, mind you, just that getting hit with an AP regardless of innocence or guilt can be expensive. And a few of my purchases were for airline tickets. (further complicating matters, the tickets would be unused when I file.) I went from a zero balance to $4.5K in a matter of weeks. And, like OP, I would be filing about seven months after my final charge.

I am in a position to make payments until I file--if I file, it will be in July--and, since I need not make a decision to file or not until April, I will continue to make payments until at least then.

I know no one here is a future-teller, but am trying to grasp the likelihood of an AP being filed.

Cheers,
Steve

Just a comment: This is an almost 3 year old thread and e-mail notifications have been wonky here since the first of the year, don't be disappointed if you don't get a response.

A gentle moderator nudge: Please try to remember to check out dates of the threads before posting in them. The posting population here changes a good deal so we try not to bump older threads unless we have a specific update to them. Thanks!!

[sailing2013]

Cheers, thanks! Sorry about breaching etiquette!

[EandGWZ]

Just curious Turn, why do you believe they wouldn't have any case if he had continued to make payments up until he filed?

I am currently debating if I will file, and, since I had used a card last month--coincidentally a First National Omaha as well--the threat of an AP has a bearing on my decision.

Not that I made the purchases in bad faith, mind you, just that getting hit with an AP regardless of innocence or guilt can be expensive. And a few of my purchases were for airline tickets. (further complicating matters, the tickets would be unused when I file.) I went from a zero balance to $4.5K in a matter of weeks. And, like OP, I would be filing about seven months after my final charge.

I am in a position to make payments until I file--if I file, it will be in July--and, since I need not make a decision to file or not until April, I will continue to make payments until at least then.

I know no one here is a future-teller, but am trying to grasp the likelihood of an AP being filed.

Cheers,
Steve

Do you have a BK attorney? Generally speaking, past performance (having paid your minimum's in the past) is sufficient proof to suggest that your use of the card was NOT fraudulent. People get all worked up (understandably so) about the potential of an AP but they are far and few. Charging big and then failing to make a payment doesn't mean or lend support to the purchases being fraudulent. There are a multitude of reasons why you couldn't make a minimum payment. If you have a lawyer I'd run this by him or her.

[AZJack9]

Just curious Turn, why do you believe they wouldn't have any case if he had continued to make payments up until he filed?

I am currently debating if I will file, and, since I had used a card last month--coincidentally a First National Omaha as well--the threat of an AP has a bearing on my decision.

Not that I made the purchases in bad faith, mind you, just that getting hit with an AP regardless of innocence or guilt can be expensive. And a few of my purchases were for airline tickets. (further complicating matters, the tickets would be unused when I file.) I went from a zero balance to $4.5K in a matter of weeks. And, like OP, I would be filing about seven months after my final charge.

I am in a position to make payments until I file--if I file, it will be in July--and, since I need not make a decision to file or not until April, I will continue to make payments until at least then.

I know no one here is a future-teller, but am trying to grasp the likelihood of an AP being filed.

Cheers,
Steve

Hi Steve,

I made the mistake of charging a large amount, and then not making an effort to try and stay up with the payments. If you make some minimum payments before you file, it makes it much harder for the bank's attorney to prove that you had the intent to avoid repayment. The attorney that I made the settlement with (hired by the bank) said that if I would have made 3-4 minimum payments after the fact, it would have been much harder for them to go after an AP.

[sailing2013]

I really appreciate the follow-up, Jack.

Sorry you got burned, but glad you were able to settle.

I reckon your life is much easier having this all settled!

Cheers!