AP notice received today ... scared ... stressed ... long story thanks for helping

[scbendel]

Long story short (as short as I can make it)

Preface (for back story):

In August of 2011, we had some work done in our home. The insurance company paid us for the work. The work wasn't done correctly, and with the recommendation of our 3rd party adjuster, we paid a second company to do the work correctly. The check we received DID have the first company's name on it, but our bank let us cash it, saying that two signatures was all they needed (and we sent a rescind of power of attorney letter to the first company). So we lost in arbitration with the first company's lawyer, basically because we couldn't afford an attorney. We always do the right thing, and we tried to get all our ducks in a row especially since we knew they would probably sue. Well, they won, to the tune of about $16,000.

We waited as long as we could (while they were trying to garnish our accounts, etc) and finally decided to just go ahead and file chapter 7 in April of 2013. We had our creditors meeting 59 days ago today... lo and behold, the lawyer for the first company is objecting to our case via AP. We received an email today for "notice of Adversary proceeding opened". I'm slowly understanding what this means, after reading on this VERY helpful site.

Here's my problem: Since we lost in arbitration and had a judgment against us, will we automatically lose? We can NOT afford to pay them back at all, I'm the sole earner in my family of 5 and we barely scrape by as it is. I have so many questions and since my case seems to be different than others listed here, I'd like to incur anyone's advice here that can help. Attorneys are preferred but anyone with experience is welcome.

We didn't lose in arbitration due to them claiming fraud, we lost due to the fact that they argued there was "no duplication of work by the second company, that the first had already completed". Which is total crap. We did get a 2nd check for some additional work that the 2nd company did ON TOP of the first company's work, but had to pay out of pocket for an additional $3,000 in hotel expenses because we were out of the house that much longer.

I hope I've given enough background on this to get as much help as possible.

FYI, everything else is going smoothly with our still opened BK. We signed a reaffirmation agreement on our one vehicle, but the judge "vacated the hearing" so we wouldn't be responsible for anything if the car was repossessed later due to non-payment, etc. That's a whole other story, though...that creditor asked for another reaffirmation hearing, but we have since decided to surrender the vehicle and purchase another less expensive vehicle. (Curious though, the attorney for the construction company received notice of the request for a new reaffirmation hearing, is this normal?)

So, in summary, I guess I'll simplify this with my questions:
1. What happens next?
2. What do I need to do today?
3. Should I retain an attorney? We were a pro se case because we cannot afford one.
4. Is there any way this can "go away"? My wife and I have dealt with so much over the last couple years, we're ready to just give up and let whatever happens happen.

Thank you in advance for all of your help, I'll be trolling this forum to determine what to do next.

[LadyInTheRed]

We didn't lose in arbitration due to them claiming fraud,

But did they claim from and was the judgement for fraud? If so, the creditor will probably win the AP. What is stated as the basis for the AP?

You should at least consult with a few BK attorneys who defend APs. Do it soon so you don't miss the deadline to respond. You say you lost the first case because you didn't have an attorney. This is your second chance to have an attorney help you get out of paying this creditor.

Attorneys are preferred but anyone with experience is welcome.

Hopefully one of our attorney members will come give you some tips. But, rememver that most of bkforum members are not attorneys. Even if an attorney does respond, you should not rely on this site as a substitute for an attorney who can examine all of the facts of your case.

Re the reaffirmation: I assume you filed a reaffirmation agreement with the court. Have you formally revoked it? If not, I think you probably should.

[scbendel]

Hello LadyInTheRed, thank you for your reply!
As far as arbitration, they never said or even insinuated fraud in the final rulings. They simply stated that there was "no found duplication of work" between the first and second company... all because their invoices were worded differently.

As far as the reaffirmation agreement, I formally rescinded that just a few minutes ago. I successfully secured a new car loan for a MUCH cheaper vehicle (at a higher interest rate, unfornately, but it is what it is).

As far as the AP, since we haven't been served, when does the 14 day answer period start?

Thank you for your help.

[scbendel]

Here's the emails that I've received so far today:
This is why I wish we had money for an attorneyt. If anyone can explain these, that'd be great.

Adversary Proceeding Opened (with AP case number)
Complaint fee paid (on AP case number)
Request for issuance of summons (with AP case number)
Notice of Appearance (with BK case number)

That's all we've gotten so far today.

Thanks again.

[scbendel]

Also, sorry for all the posts...Is it typical and normal for lawyers to use big scary words in their initial complaint to open a AP? I read the file and they're all over the place, and I'm honestly shaking while reading it. Any comfort would be appreciated.
Thanks again.

[AngelinaCat]

Have you signed up for PACER? You can keep track of your case with that, and see the pdf document online when it hits your file, and before the paper copy arrives in your mail. You will need to be careful, because each time you open a document to look at it online, you will be charged $0.10 a page, and it can mount up.

You really need to see the wording in the AP document. Until then, you don't really know what they are getting at.

Here's the link to PACER:

http://www.pacer.gov/

You just follow the instructions and enter your info here:

https://www.pacer.gov/psco/cgi-bin/regform.pl

There is also a detailed manual available:

http://www.pacer.gov/documents/pacermanual.pdf

[scbendel]

Somehow, I was able to get to the doc the first time I clicked on it, and they used words like "larceny" and "extortion" when those words were never mentioned or even eluded to in arbitration. I'm guessing this was to make it look "juicy" enough for a judge to look at? Or should I really be scared?
I'm going to sign up for PACER, but is it really worth seeing the items if they're mailing them same day? It's only usually a 2-day turnaround.

[ValleYum]

If you do have PACER, you can type the document in here removing any identifying info (name, court, judge, appellant, etc.) if that is in your comfort zone.

Hang in there. (((hug)))

[scbendel]

Thank you, ValleYum.

[tobee43]

i read and re-read you reasoning for losing the arbitration and i just don't understand the basis of the decision. as lady has pointed out, if the decision of the arbitrator was based on fraud then yes, they could win the AP. of course that would be the all time worse scenario. what would that mean to you? it would just mean you would have to work out payments on the debt. that's the worse. however, if you are a NO asset 7, it is likely they will have a difficult time collecting.

again, it's difficult to understand what or why you lost the arbitration, you really don't need an atty to win at a sitting arbitration, you just need a properly presently defense to the other parties argument. i have found, and i'm certain lady has seen it as well, it just seems to happenstance that many of these arbitrators side with the companies as opposed to individuals, although i have seen a few result in a stepped up position.

as suggested you really need to check with your atty. make certain as also suggested that they are well versed on the adversary proceedings, many are not, so you may have to hire an additional atty to handle this situation for you.

while it's really scary and i really feel for you, other than the plaintiff/creditor being able to absolutely submit unquestionable proofs of fraud on your behalf, their position will or should not hold up. i know also how it must make you feel to see the wording of "larceny" and "extortion" but consider this, fraud or a criminal act is their ONLY way to win this so of course they are going to spout all sorts of nastys about you. it's just part of their game. again, if you are a NO asset 7, they don't have much of a way to collect.

again, do as everyone suggests and run this by the atty. i for one, unless there is provable fraud think you'll be fine. however, it will cost you most likely anywhere from $750 and over for the atty. it's well worth the money. (it may have gone up since ours was a few plus years ago and that was the going rate).

take a deep breath, really, you know the worse scenario and it's ONLY money. keep us posted, there is always someone here to listen.

[scbendel]

tobee43, THANK YOU. I am going to try and contact a few attorneys tomorrow and see where to go from here. I guess I'm worrying now more about the criminal aspect of this, since they're using such big words that weren't brought up in arbitration. I guess if they DID have proof, they would have already tried to prosecute criminally, no?

[LadyInTheRed]

I'm going to sign up for PACER, but is it really worth seeing the items if they're mailing them same day? It's only usually a 2-day turnaround.

I don't know when the 15 days start. Either way, with only 15 days to respond, I wouldn't waste any time.

You really should start calling attorneys and see if you can get a consultation or two. Bring copies of the complaint and the judgement from the lawsuit and of the AP. Even if you don't hire an attorney, you may at least get some valuable input. Have you looked for legal aid options?

[LadyInTheRed]

tobee43, THANK YOU. I am going to try and contact a few attorneys tomorrow and see where to go from here. I guess I'm worrying now more about the criminal aspect of this, since they're using such big words that weren't brought up in arbitration. I guess if they DID have proof, they would have already tried to prosecute criminally, no?

They are probably just using that language to try to convince the court that the debt is not dischargeable.

[tobee43]

tobee43, THANK YOU. I am going to try and contact a few attorneys tomorrow and see where to go from here. I guess I'm worrying now more about the criminal aspect of this, since they're using such big words that weren't brought up in arbitration. I guess if they DID have proof, they would have already tried to prosecute criminally, no?

absolutely, and your atty will clearly point that out. i know it's hard for me to tell you relax, but this will run it's course, either way. it's just a bump in the road, and you just have to move it to the side and get on with your lives.

i have been through one, so it's hard to hear people tell all these lies, but in the end, we won. our opponent had a bit of twist on their argument claiming theirs was a "secured" debt as opposed to non secured. here's the kicker, i knew the debt was not secured but the atty we hired said and told us, sorry you have to pay them and it was approx 25k. i said NO way, i have all the documents that the loan was secured by inventory. i have inventory left, so let them have at it. no way was it personally guarantee, no collateral other than inventory. period. we ended up having to hire yet another atty for the AP and won with ease. my point in telling you this is to also let you know not all AP's are based on the argument of fraud.

i'm with you, if they had the proof THEN they would have used it. good, get the best atty you can, i really think it's going be fine. also, check your records and see if you can find the final decision from the arbitration that might help give you more insight to where they are going or trying to go with this. it's always best to be one step ahead if you can be.

[scbendel]

LadyInTheRed, from what I'm reading, I have 14 days from being served. I haven't been served yet, so I'm going to gather all of my options and make a decision and go from there. These guys really have me up in arms today. All of this while I'm trying to work too...which has made today ridiculously hard to bare.