where can i find examples of responses (answers) to AP summons and complaints?

[craig]

filed chapter 7, was discharged, but received an AP by a credit union alleging fraud and willful harm. i am pro se, and need to respond without an attorney as i cannot afford one now, but can by the time pre trial conference is held.
where can i find examples of what my response (answer) should look like as far as legal format i concerned?
thanks

[justbroke]

First, when was the AP actually filed? If it was after the deadline to file a complaint to determine dischargeability -- the 60 days after the first scheduled 341 Meeting -- then it is time barred. What specifically is in the complaint? Do you know why the Credit Union filed a complaint? Did you make charges within the 90 days or otherwise were insolvent when you used one or more of their credit products?

There is no "template" for responding. You could go into PACER and look at a few Adversary Proceedings and look at the responses given. It's technically a paragraph for paragraph answer to the complaint that is filed with either denying, affirming, or denying because there is not enough information to respond.

The respond should follow the same technical format as the complaint or any other paper filed in your District. That's usually a Caption and then the response and then the prayer for relief. Don't just "copy" a response from another case.

Let me know what your dischargeability bar date was, and the date that the AP was filed. Based on your response to that question, your response may be solely that the plaintiff is time barred.

If they are seeking to revoke your discharge, this is an entirely different matter and you should see an attorney.

[craig]

341 meeting was on October 5, AP was file on December 6 (monday) so they were timely.
complaint is related to a vehicle finance contract
payments were made on the loan for two years
vehicle was repo'd after i lost my job and couldn't make payments
complaint alleges fraud for lying about income and expense. a broker handled the transaction, i had a very high credit score, and broker indicated loan was approved, i signed no papers until closing of the loan. in signed a blank credit app, and broker filled out rest after the fact. The broker fabricated an income number, and only included three of my credit accounts as liabilities on the application, when i had several more.
complain also alleges i returned a stripped down vehicle. the vehicle was repo'd in the same condition as i took delivery at closing of financing. repo man later approached me to sell me vehicle in stripped down form. repo man indicated he removed parts to satisfy repo and storage fees as the credit union that financed it abandoned title claiming it is worthless. stripped down vehicle is worth about $25k in current form credit union is after me for $60k.
they are only looking to determine ability to discharge only the one debt, not the whole case. the chapter 7 bk discharged on december 21st. i have to file a response by january 10

[justbroke]

First, wow, they did it on the last day (since Day 60 fell on a Saturday, the last day moved to Monday (Day 62)). Ankle biting credit unions!

Second, it's very hard for them to prove that you defrauded them by "lying" on your application. It was their fiduciary duty to very everything. So they basically gave you the loan without validating anything on the application? That's their fault. I don't see that count going anywhere. It was very easy for them to actually look at your credit report and see your credit obligations. The fact that they chose to ignore that and look at a credit app, is their own fault.

You may want to implead the broker. If you don't understand what an impleader is, you may want to do some research on adding another defendant to the complaint. I would implead the broker, and definitely have them as a witness (on witness list).

You have pictures, right? You have pictures of what you received on the day the loan closed? Or do you have evidence (admissible) that can show the condition of the vehicle upon delivery? What type of vehicle is this? Seems like a lot of money for a vehicle ($60K) that you claim was stripped down when you received it, so only worth $25K when it was delivered to you and the Note signed.

I really don't see this going anywhere but you really need to file a responsive answer or it will go to judgment (default judgment). You should really hire an attorney for this since it can get dicey. I still see no claim even if you returned a stripped down vehicle!!! It's still dischargeable!

[HHM]

When it is a secured creditor, these cases get somewhat complex. Especially with needing to cross claim 3rd parties.

Your first move should be to see what settlement is on the table, but I would STRONGLY STRONGLY advise that you hire an attorney. There is $60K at stake, if you lose, you will emerge from BK still owing this $60K, Most lawyers charge around $4-$6K to handle an AP (there is probably regional variation). I suggest that that 10% investment will yield a good return. Don't try to do this yourself. When a secured creditor files these, they are not frivolous. Especially since you are dealing with a credit union, CU's are very anti BK and will go to the mat if they think they have a case.

Basically, go talk to some attorneys and see how much a proper defense will cost. Then contact the creditor and see if they will settle for that amount ($4-6K or whatever attorneys charge for AP's in your area), if the CU says no, go lawyer up, too much is at stake.

[craig]

yes, thinking of dragging broker into this mess. probably will have to include the repo man too.
i have pictures at delivery, and at repo, ... the vehicle was worth $60k in early 2007, but now worth less than half that due to market conditions. does anybody know if they have to mitigage their losses? i.e. by not taking possession of the vehicle and selling it, would i not be eligible to receive the vehicle since in their opinion it is of no value?
the vehicle was an off road racing rolling chassis, which includes frame and suspension components. a complete vehicle has a price tag in the $150k to $250k price range.
i am definitely filing a response, just not sure if i use simple one word answers, of introduce points of contention. this being the reason for the post in the beginning.
i will retain a lawyer around the time of the case management conference, as i anticipate to have resources by then to do so.

[craig]

i am scheduling an appointment with counsel to get an idea of price... i expect it to be in the $5k range. also, the credit union board of directors was taken over by the feds last month for only having a 3% asset base when they were supposed to have a 7% base. they have closed 2/3 of all their branches, and still posted a $56mil loss last quarter, which is over 20% of their asset base, so at that rate they will be out of business in a few more quarters.
when i contact the lenders counsel, i assume i shall ask them what they are willing to accept in lieu of going to trial correct? assuming they don't want to settle for $.10 on the dollar, then do i threaten engaging counsel at that point, or remain silent on the issue, or just wait until i engage counsel to begin any negotiations?

[justbroke]

Some lawyers won't take a case where you have already filed a response. Your response is basically your case and it may make it difficult for them to litigate the a more legally sufficient defense. Just letting you know that.

If they declared that the vehicle was worthless, then they would need to prove it, but HHM brings out the real problem. If this goes to trial and judgment, they might win because you may not mount the right defense. I don't know how it's not dischargeable, but that's not for me to decide since I'm not the Judge. You will need more than one word answers since your answer must be responsive. Perhaps you can work out a free agreement and retain an attorney now? I'd start looking.

[craig]

reply to justbroke:

fortunately the attorney i am meeting with, i've used before for a business bankruptcy where luckily i was not an officer of the corporation. a LOT of money was spent with this attorney, and the outcome was spectacular. i expect he will take a token payment to engage him, and i can pay as fees are incurred or with reasonable payment terms. additionally, he is local and so is the credit union, and i'm sure he's stuck it to them more than once.
the credit union, who only has branches within a 25 mile radius of me has engaged a single office, two attorney firm over two hours away, which i don't understand their reasoning as there are plenty of hungry attorneys around here.

[justbroke]

Best of luck craig. I guess they are in receivership and that's never a good thing. I'm glad that you have an attorney that you know and who can work out the fee schedule and payments!

[craig]

the saga continues . . . after my discharge i began working on disputing items on my credit report to reflect the ones included in the bankruptcy which were still being reported incorrectly.
one account i had which was a second mortgage was allegedly sold by the lender to a collection agency right as i filed chapter 7. i named the original lender, and received the discharge.
i saw the collection agency reported the debt on my credit and disputed it as included in bankruptcy, and they responded verifying the debt. then i receive a fedex from them indicating
they have "bought" the debt, and are attempting to collect.
my question is: since the original lender was included in my filing, and did receive notice, and i had no knowledge of this collection company "acquiring" the debt, how do i respond to them to
get them off my case and are they included in the discharge as they were the "buyer of the debt"? i have many other accounts that were in the hands of collection agencies that were indicated as
discharged in bankruptcy.

[justbroke]

You send them a demand notice to stop attempting to collect, as it was included in bankruptcy, and that any further attempts to collect will be met with a complaint filed with the bankruptcy court for a violation of the permanent discharge violation. Also, I would title the actual demand as a violation of the permanent discharge injunction -- which it is.

Send that CMRR and be sure to follow up!