AP filing fee for debtor?

[wipetheslate]

I am going to file an AP to determine the dischargeability of my student loans. On the court's website the fee is listed as $250!! As the debtor, do I need to pay that, or is that just what a creditor would pay to file an AP against me?

It's too early for me to call the court and ask them.

If I have to pay that, can I request to pay it in installments or at a later date?

[biotechsolution]

You have to pay that. You do realize even if you file it yourself you're going to invest a lot more than $250. You need to line up experts showing that you're disabled and won't be able to work and such for your court hearing.

[despritfreya]

You have to pay that

Not always correct. Many, if not all, jurisdictions waive the fee for such AP's filed by a debtor. Call the clerk of the court to find out.

Des.

[Pandora]

*raises hand* ;)

Hey Des...

I'm wondering though - (given we currently have an AP ourselfs *for stay violations*, albeit through our lawyer) if the OP loses, wont he/she be responsible for the other parties legal fees? I know we're in discovery at the moment, with court date looming next month and in the response from the creditor, they're seeking legal fees (will never happen as they wont win ) but our attorney is also seeking legal fees from them as well. Our creditor has discussed settling prior to court, however that amount will also include legal fees.....

Would that apply in this case as well?

to the OP: Make sure you read and understand very clearly what you must do and how it must be presented in your AP - especially the discovery part; its very very specific as to how its supposed to be presented.

[despritfreya]

I'm wondering though - (given we currently have an AP ourselfs *for stay violations*, albeit through our lawyer) if the OP loses, wont he/she be responsible for the other parties legal fees? .

Theoretically maybe but highly unlikely. First it would be bad press for a student loan lender to sock a debtor with legal fees if a debtor is unable to prove a hardship. Second, to get legal fees the lender would have to request it from the Court. I doubt very much that a judge will grant such a request. Third, most of these types of suits settle with an agreed reduction and/or payment plan. Some do go to trial but most settle.

I know we're in discovery at the moment, with court date looming next month and in the response from the creditor, they're seeking legal fees but our attorney is also seeking legal fees from them as well. Our creditor has discussed settling prior to court, however that amount will also include legal fees......

Your situation is a bit different. It would be standard for both sides to have a prayer in either the complaint or answer requesting legal fees and thereafter try to get fees awarded.

You are entitled to all damages resulting from a proven violation of the stay and the legal fees are part of those damages. HOWEVER, READ ON.

I direct you to Sternberg v. Johnston, 595 F.3d 937 (9th Cir., 2009). Let me tell you that the issue between the parties was quite nasty, both are attorneys and neither represented themselves. The bk ct found a willful violation and hammered Sternberg to the tune of $80k, including all legal fees incurred by Johnston. The ruling was appealed by Sternberg 1st to the BAP and then to the 9th Cir. CA. The 9th Cir. upheld everything but kicked it back on the legal fees indicating that Johnston was only entitled to the amount incurred to get the violation stopped. It held that the fees incurred for litigating were not recoverable as damages for a stay violation. A Writ of Cert was made to the USSC but I cannot remember by which side or what issues nor do I know the status - If you want I can find out.

Des.

[wipetheslate]

Thanks all. I just had a moment of panic this morning. No fee to file and they even made some copies of the summons for me for free.

I'm in the Ninth Circuit, where they have been a bit more liberal in discharging student loans. I'm not worried about legal fees. Given my circumstances, which I clearly described in my complaint, they'd have to be jerks with a heart of stone to even try it. I obviously hope to not have to even go to trial. I have extensive medical expenses, and I'm likely to have them for years if not the rest of my life, even though I am working. I paid on my loans for over 8 years without missing a payment. I believe I will be able to demonstrate to the court that I pass all three prongs of the Brunner test.

[Pandora]

Theoretically maybe but highly unlikely.....

Your situation is a bit different. It would be standard for both sides to have a prayer in either the complaint or answer requesting legal fees and thereafter try to get fees awarded. ...You are entitled to all damages resulting from a proven violation of the stay and the legal fees are part of those damages. HOWEVER, READ ON.

I direct you to Sternberg v. Johnston, 595 F.3d 937 (9th Cir., 2009). ..... A Writ of Cert was made to the USSC but I cannot remember by which side or what issues nor do I know the status - If you want I can find out.

Des.

Des

Thanks for the clarification and answer - I wasnt sure if it worked the same way for all AP's or not. I just read the case you quoted and ruling (came down Jul 2010) - what a mess!


Wipetheslate: Wishing you all the best - and I hope things get better for you!