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

[AngelinaCat]

I got it, thanks!

PM has been sent.

[despritfreya]

I am going to give you food for thought and continue to recommend you see an attny.

If I got your posts right, the creditor is claiming you cashed a check that should have gone to it for work it did. This was an insurance check right???

My guess is that the creditor is alleging you had some fiduciary duty to protect its interest in the check. That would be a 523(a)(4)
“breach of fiduciary duty” matter. In my opinion, it’s a loser for the creditor because there had to be an “express trust” between you and it. I doubt there was. Further, I direct your attention to the very recent US Supreme Court case of Bullock v. Bank Champaign
(5/13/13). Although it is too soon to tell, I believe this case is going to make is harder for creditors to prove a debtor committed “defalcation” (embezzlement) in 523(a)(4) matters. Some info on this decision can be read at. . .

http://www.lexisnexis.com/community/bankruptcylaw/blogs/bankruptcylawblog/archive/2013/05/15/supreme-court-sets-defalcation-bar-at-gross-recklessness-under-section-523-a-4.aspx

Hopefully the link will work... if not, try the cut and paste routine.

Des.

[scbendel]

Thanks Des! I'll read it now.

[scbendel]

It wasn't a "cashing", we deposited it, with the bank's approval, after sending a formal letter to the contractor revoking their power of attorney for that and other payments. We clearly paid that money to another company to do the exact same work, but because the 2nd company's invoice was worded differently, the attorney for the plaintiff sold the arbitrator on the "no duplication of work" theory. I'm digging through all of my files to try and find the arbitrator's final decision...but there was no indication of embezzlement or larceny or fraud in it, that I know for sure. Probably because they couldn't prove it; which is good because there was none.

[justbroke]

I'm lurking. You are in good hands.

[scbendel]

Excellent! I have found some useful information from the link Des laid out.

Thanks guys, a lot. Still just getting started (again). It seems like every time I see the light at the end of the tunnel, these guys pop back up like a crazy ex-girlfriend.

[tobee43]

Cat, that'd be okay with me. I'd like as many pointers as I can get. Thank you!

des can give you more than pointers, he most likely is truly one of the best atty's there is today. i have worked for many, and have yet to ever meet anyone other that des so willing to give help those who need it. if you live in the same state i would run as quickly as i could to him. i just keep begging him to come to florida or clone himself. i was actually thinking of trying to talk him into selling franchises of "him" LOL!!!

[tobee43]

Excellent! I have found some useful information from the link Des laid out.

Thanks guys, a lot. Still just getting started (again). It seems like every time I see the light at the end of the tunnel, these guys pop back up like a crazy ex-girlfriend.

that light will start getting brighter, promise. again, just take this step by step, you have des guiding you, and again, one way or another this will resolve itself.

[scbendel]

I'm just sick of all the mental torture and taking time off of work to go downtown to the courthouse. No fun trying to find a sitter for my kids and someone to cover my shift. Not to mention all the stupid filing fees that I already can't afford. I kinda see where Des is going though.

[tobee43]

I'm just sick of all the mental torture and taking time off of work to go downtown to the courthouse. No fun trying to find a sitter for my kids and someone to cover my shift. Not to mention all the stupid filing fees that I already can't afford. I kinda see where Des is going though.

i know, it's really hard. especially when you don't have the freedom of time at your door. really, it will get better. i hope you see where des is going, and will follow that advise, he/she would never steer you in the wrong direction, ever.

you're close to the finish line, just hang in there and keep posting, we are here, if for nothing else to hold a hand out during a stressful time. it's going to be okay. really.

[scbendel]

Thanks again tobee.

[scbendel]

You guys were right, the Summons was emailed and entered today. So we should have the complaint in a day or two. I'll keep y'all posted. Thanks again!

[despritfreya]

I urge you to get a PACER account (or have an attny you meet with do this) and pull up the following case. . .

Branden Trust v. Chavez, Case Number 0-09-ap-128 JMM. Find and read the Memorandum Decision - Docket No. 40 (there should not be a charge to download a Memorandum Decision).

Please note that this is not a published opinion and therefore has no value but to educate.

The facts are not the same as yours but Judge Marlar (now retired) gives and excellent dissertation of what a Plaintiff must show under 523(a)(4). It also discusses briefly a claim under (a)(6). There is no way to know if your judge would rule the same way but it is a start for you to get a feel for what is going on.

I’m still trying to find a case that deals with a two-party check but don’t hold your breath. We never find cases with exactly the same facts.

Des.

[malf1204]

I got into a fight with the Illinois State Unemployment last year. They seized my tax return after my no-asset BK7 discharge from an alleged overpayment in 2000. They claimed to have held an administrative hearing in 2002 and found me guilty of fraud and that was the basis for 13 weeks of overpayment. The BK judge was not impressed and told them to provide proof other than a bias review by a state employee. He simply wrote an order giving them 21 days to provide proof or refund my money. I got a check in the mail about 15 days later. My bet is this attorney knows you did not defend yourself at the arbitration and will not at the AP. Prove him wrong.

[scbendel]

Thanks again guys! Des, I'm going to read that now...and most likely quote from it in my answer.

If my answer is convincing enough, is there any way the process will stop at that point? I really don't feel like rehashing this case, it put us through two years of hell, and the judge we see this time around will most likely be inexperienced in the practices of contractors.