Possible AP - or are they just trying to scare us into paying?

[losingmybiz]

A week or two after our 341 meeting in December our lawyer recieved a letter from a law firm representing two creditors (Discover and Chase). They wanted to settle a presumed fraud total of $5500 for $4900.

These charges were outside the 90 days, (by only about 2-3 weeks, however) and the charges were for termite damage to our home and water damage to our bathroom. And nevermind what the charges were for, my husband wasn't really planning to file - I was only going to file on my business debts.

Obviously this is a much longer story, but I just wanted to get some feedback on what others have experienced with a "threat" of filing an AP. After our lawyer talked to this guy, they offered to settle for $3500. We said no. They said they were going to file the next day. That was almost 2 weeks ago and we are 2 weeks away from the 60 day mark.

We are going to wait it out. I just really think they are bluffing, but my husband is worried.

Does anyone care to share their story?

[losingmybiz]

So 11 days before the deadline for objections, the lawyer for Discover/Chase files a "Notice of Appearance". From what I have read, this could be a standard procedure, but it's looking more likely that they will file. They have 10 days now.

[losingmybiz]

Filed today. On the very last day.

Now what? We would rather pay our attorney to fight it, than pay this debt that should be discharged with the rest.

[AbbeyA]

From what I have learned on this board, AP's are very expensive to fight. It will probably cost you more money to fight it than to settle. I would see if they will settle for aroung $2k and call it a day.

[HHM]

Time to settle...sounds like the creditor has the stronger side of the case.

[BKIN2010]

Time to settle...sounds like the creditor has the stronger side of the case.

HHM, How do you figure?

[losingmybiz]

HHM, How do you figure?

I wonder this too, without knowing anything about our case at all. What do you know about APs that makes them right and us wrong? We did not go into this driving up our credit cards on purpose. I've read the entire lawsuit and they are making quite a lot of assumptions that are just wrong. They don't know that most of our debt is business. The AP has to do with my husband's personal credit, and he was not even planning to file at the time. Just about everything they are charging is false.

[tobee43]

interesting enough.....someone just mentioned today that many times the "90" rule of not charging could be viewed differently by different states....i'm certain about that...but all i can say is in florida...if you didn't use your card within that 90 days.....the creditor is SOL.....

now...that being said....depending on how the creditor presents the case it may be in your best interest to settle...additionally, your atty should have advised that you should have maybe delayed your filing for a few months to..."clear" the air...but as once stated by one of our wise mods...hindsight is blind....

it is usually suggested that you attempt a settlement...however, as you said, we aren't hearing the entire situation....such as if you are an "asset" case or not.

[BKParalegal]

A good BK attorney does not want a reputation that he will settle borderline frivolous AP's otherwise he invites future ones to be filed. I will admit our office has setltled one but that is because the client took a cash advance to pay a non dischargeable debt ( taxes-he actually used of those checks the credit card issues and wrote it write to the IRS!) but for all other matters we file a motion to dismiss and ask for attorney's fees. AP's are becoming more prevalent because weak attorneys are caving, we have had 3 in our office in the last year and had all 3 dismissed.

I hate to see you settle that is unless you actually violated the BK code.

Good luck

[tobee43]

A good BK attorney does not want a reputation that he will settle borderline frivolous AP's otherwise he invites future ones to be filed. I will admit our office has setltled one but that is because the client took a cash advance to pay a non dischargeable debt ( taxes-he actually used of those checks the credit card issues and wrote it write to the IRS!) but for all other matters we file a motion to dismiss and ask for attorney's fees. AP's are becoming more prevalent because weak attorneys are caving, we have had 3 in our office in the last year and had all 3 dismissed.

I hate to see you settle that is unless you actually violated the BK code.

Good luck

i so agree....but i do think it was the atty's responsibility to had advised you if there was in fact, a questionable situation, that you should have allowed "time" to pass prior to your filing to protect your position. i also agree with the fact that we will begin to see more ap hearings pop up...just because atty's need business.

also the few i have known also lost and the debtor won and did not have to pay. that is why it is quite interesting that it is usually advised to attempt a settlement as opposed to going to court....keeping in mind that you may lose and have to pay the debt in full.

[HHM]

Okay, I didn't see the specific use in the original post, looks like it was to repair termite damage and water damage (assuming that is true), then the debtor has the stronger case. HOWEVER, the decision to defend needs to balanced by the practicality and cost of defending. If it would cost you $2,500 to defend and the creditor would accept $1,500 to settle, what would you do.

I think this is a good case to fight.

[tobee43]

Okay, I didn't see the specific use in the original post, looks like it was to repair termite damage and water damage (assuming that is true), then the debtor has the stronger case. HOWEVER, the decision to defend needs to balanced by the practicality and cost of defending. If it would cost you $2,500 to defend and the creditor would accept $1,500 to settle, what would you do.

I think this is a good case to fight.

if the debtor wins...doesn't the creditor have to pay the costs????

[losingmybiz]

In the complaint they mention specific charges and that one of the charges was 240 days prior and another was 191 days prior to filing. They are really assuming a lot. There is absolutely nothing within the 90 days.

This is a no asset case.

We took pictures of the hole in our celing under the bathroom and pictures of the hole in our house when they originally found the termites. We have receipts too. What more proof would they need?

We also were expecting a 12k tax return, and were planning to use it to pay down my husband's cc's so he would not have to file. Of course, sh*t happens and things did not work out that way. We got the 12k tax return, but had to use it to pay business related taxes.

[losingmybiz]

Originally they were looking for the $5500 and $4900.....and willing to settle for $3500. Well now they are coming after the total credit card balance - more than the original 5500 and 4900.

[losingmybiz]

if the debtor wins...doesn't the creditor have to pay the costs????

Yes. PLUS...our lawyer is filing a counterclaim based on the new federal truth in lending laws...anyone have experience with that?