Thinking of filing..

[steak]

My wife and I are planning to file chapter 13..The only problem that I have is that I might have some accounts that might be considered fraud. No transferring of assets or anything like that. I just spent and balance transferred. I opened about 40k in credit cards back in 2006. Some of the cards I didn't even bother paying the minimum because I just couldn't afford it.Will this be a problem? Majority of the cards have all been charged off and I've been getting calls after calls..I even received a summons letter. If I decide to do this and they object to lets say the account that has a summons against me, but they still approve my chapter 13 on the other accounts. What happens to the summons? Does it go away until my chapter 13 is over?

***GREAT FORUM BTW***

[StartingOver08]

If you file, you want to bring the lawsuit (summons) info to your attorney to include in the BK. If the lawsuit has become a default judgment, the judgement can be removed in the BK. If a default judgment has not yet been awarded, then the BK will 'automatically stay' the lawsuit.

There is a spot right in the petition for you to list all of your lawsuits.

If you opened cc's in 2006 and have not recently charged on these cards (90 days) or recently (last 70 days) done a balance transfer to the cards, then you should be safe. Just make sure to list every debt owed - and bring it to your attorney.

[justbroke]

steak, as posted, include any judgments and lawsuits in your filing.

As for whether it would be considered fraud, I can't say. I will say this though... you are definitely outside of the window in which fraud is usually alleged. That is the magic 90-day window prior to filing for Bankruptcy that it's presumed that you're already insolvent (bankrupt).

If you charged up your cards 2-3 years ago, and never paid, due to whatever circumstances... then may alleviate most concerns of fraud.

However, having not made even one payment on any of those cards, may be construed as you never intended to pay these back, which raises the concern of fraud. This would make them non-dischargeable.

[steak]

steak, as posted, include any judgments and lawsuits in your filing.

As for whether it would be considered fraud, I can't say. I will say this though... you are definitely outside of the window in which fraud is usually alleged. That is the magic 90-day window prior to filing for Bankruptcy that it's presumed that you're already insolvent (bankrupt).

If you charged up your cards 2-3 years ago, and never paid, due to whatever circumstances... then may alleviate most concerns of fraud.

However, having not made even one payment on any of those cards, may be construed as you never intended to pay these back, which raises the concern of fraud. This would make them non-dischargeable.

Do I need to state that to the trustee that I did not make one payment? Ok so if they consider the account non-dischargeable, do I settle the matter after the chapter 13 is over..Can I get my wage garnished even if I am in a chapter 13?

[justbroke]

Do I need to state that to the trustee that I did not make one payment? Ok so if they consider the account non-dischargeable, do I settle the matter after the chapter 13 is over..Can I get my wage garnished even if I am in a chapter 13?

First, you only answer the Trustee asks, and only respond with short concise answers... don't elaborate. (Hopefully, you have an attorney and they'll guide you through this!)

Second, if it's considered non-dischargeable, then the Creditor can continue to collect in whatever manner provided by non-bankruptcy law.

It won't be settling the matter after the Chapter 13. They'll proceed immediately if they are smart.

Since we don't know what the creditors will do right now, you'll just have to wait and see. They may not even care since it's been so long... but, by definition, you never intended to pay them back.

[steak]

First, you only answer the Trustee asks, and only respond with short concise answers... don't elaborate. (Hopefully, you have an attorney and they'll guide you through this!)

Second, if it's considered non-dischargeable, then the Creditor can continue to collect in whatever manner provided by non-bankruptcy law.

It won't be settling the matter after the Chapter 13. They'll proceed immediately if they are smart.

Since we don't know what the creditors will do right now, you'll just have to wait and see. They may not even care since it's been so long... but, by definition, you never intended to pay them back.

Is the trustee or the creditor going to consider in non dischargeable? Who has the say so? Is this what happens at the 341 meeting? Does the trustee go down hte list and question me on every single creditor? If a creditor doesn't object I'll be ok right?All the accounts have been sold off to credit agencys so does the creditor even care? How can they prove that I didn't intend to pay them back..I just didn't have the money..I had other obligations at the time. I was out of work in 7/2006 used credit cards to get by...If I decide to file and they dismiss it, what then, will I be able to file in the near future?

[justbroke]

Is the trustee or the creditor going to consider in non dischargeable?

It's the creditor. The Trustee is only an entity who manages the Estate. Some creditors don't think it's worth the fight... especially for small amounts. The reason is that these non-dischargeable claims are done via a mini-lawsuit within the Bankruptcy process called an Adversary Proceeding (AP). This can get expensive. It's $250 just to file an AP. The creditor will have spent probably $700+ just to file the AP (with the lawyer's fees).

Who has the say so? Is this what happens at the 341 meeting?

The deadline (bar date) for filing a complaint about non-dischargeable debt (other than debt with, by law, is non-dischargeable such as student loans) is about 60 days after your 341. This should be clearly shown on your Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines. On that sheet of paper is a date labeled Deadline to File a Complaint to Determine Dischargeability of Certain Debts:.

Does the trustee go down hte list and question me on every single creditor?

Not unless you're benig audited (which is unlikely, but possible).

If a creditor doesn't object I'll be ok right?

Absolutely.

All the accounts have been sold off to credit agencys so does the creditor even care?

It depends if it was sold, or only assigned for collection. Many Collection Agencies (CA) collect under a contract. If you file Bankruptcy, or some other event happens, many CAs send the "file" back to the original Creditor. However, some debt is outright sold to another company. In the latter case, it is highly unlikely that the new debt owner will pursue a non-dischargeability claim because it requires having a lot of proof, which many just don't have.

How can they prove that I didn't intend to pay them back..I just didn't have the money..I had other obligations at the time. I was out of work in 7/2006 used credit cards to get by...If I decide to file and they dismiss it, what then, will I be able to file in the near future?

First, the appearance/presumption of you not intending to pay it back, is the fact that you didn't pay back one penny of it. That's enough for them to file an Adversary Proceeding (AP). Then you'll have to prove that you didn't know you had no job and still charged to your card... knowing you couldn't pay it back.

Again, this is all speculation and is only the what could happen. I will reiterate my prior statement. If the debt was truly sold, the likelihood of the new creditor filing such a proceeding as a fraudulent debt is very low. Mainly, because they purchased the debt for so little.

I hope that helps.

[steak]

It's the creditor. The Trustee is only an entity who manages the Estate. Some creditors don't think it's worth the fight... especially for small amounts. The reason is that these non-dischargeable claims are done via a mini-lawsuit within the Bankruptcy process called an Adversary Proceeding (AP). This can get expensive. It's $250 just to file an AP. The creditor will have spent probably $700+ just to file the AP (with the lawyer's fees).

The deadline (bar date) for filing a complaint about non-dischargeable debt (other than debt with, by law, is non-dischargeable such as student loans) is about 60 days after your 341. This should be clearly shown on your Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines. On that sheet of paper is a date labeled Deadline to File a Complaint to Determine Dischargeability of Certain Debts:.

Not unless you're benig audited (which is unlikely, but possible).

Absolutely.

It depends if it was sold, or only assigned for collection. Many Collection Agencies (CA) collect under a contract. If you file Bankruptcy, or some other event happens, many CAs send the "file" back to the original Creditor. However, some debt is outright sold to another company. In the latter case, it is highly unlikely that the new debt owner will pursue a non-dischargeability claim because it requires having a lot of proof, which many just don't have.

First, the appearance/presumption of you not intending to pay it back, is the fact that you didn't pay back one penny of it. That's enough for them to file an Adversary Proceeding (AP). Then you'll have to prove that you didn't know you had no job and still charged to your card... knowing you couldn't pay it back.

Again, this is all speculation and is only the what could happen. I will reiterate my prior statement. If the debt was truly sold, the likelihood of the new creditor filing such a proceeding as a fraudulent debt is very low. Mainly, because they purchased the debt for so little.

I hope that helps.

It truly does help. I guess I'll take my chances and file chapter 13..Thanks.

[steak]

It's the creditor. The Trustee is only an entity who manages the Estate. Some creditors don't think it's worth the fight... especially for small amounts. The reason is that these non-dischargeable claims are done via a mini-lawsuit within the Bankruptcy process called an Adversary Proceeding (AP). This can get expensive. It's $250 just to file an AP. The creditor will have spent probably $700+ just to file the AP (with the lawyer's fees).

The deadline (bar date) for filing a complaint about non-dischargeable debt (other than debt with, by law, is non-dischargeable such as student loans) is about 60 days after your 341. This should be clearly shown on your Notice of Chapter 13 Bankruptcy Case, Meeting of Creditors, & Deadlines. On that sheet of paper is a date labeled Deadline to File a Complaint to Determine Dischargeability of Certain Debts:.

Not unless you're benig audited (which is unlikely, but possible).

Absolutely.

It depends if it was sold, or only assigned for collection. Many Collection Agencies (CA) collect under a contract. If you file Bankruptcy, or some other event happens, many CAs send the "file" back to the original Creditor. However, some debt is outright sold to another company. In the latter case, it is highly unlikely that the new debt owner will pursue a non-dischargeability claim because it requires having a lot of proof, which many just don't have.

First, the appearance/presumption of you not intending to pay it back, is the fact that you didn't pay back one penny of it. That's enough for them to file an Adversary Proceeding (AP). Then you'll have to prove that you didn't know you had no job and still charged to your card... knowing you couldn't pay it back.

Again, this is all speculation and is only the what could happen. I will reiterate my prior statement. If the debt was truly sold, the likelihood of the new creditor filing such a proceeding as a fraudulent debt is very low. Mainly, because they purchased the debt for so little.

I hope that helps.

Would it be best if I just hold off on the Chapter 13 and work with the CAs? Try to pay off the accounts that I didn't make a single payment on, and once I pay them off go thru with the Chapter 13..

[justbroke]

Would it be best if I just hold off on the Chapter 13 and work with the CAs? Try to pay off the accounts that I didn't make a single payment on, and once I pay them off go thru with the Chapter 13..

The question you ask yourself for whether you need to file a Chapter 13 or not, usually depends on whether you're trying to protect property.

Most people will say that this property should also be real property, and not just a car.

If you're trying to protect your home or other investment/property, then you should file regardless of the questionable unsecured debt.

Filing for Chapter 13, or working with the unsecured creditors, could yield the same results anyhow. If you filed Chapter 13, the creditors could move to make the debt non-dischargeable, and work with you anyhow to pay the debt back (outside the Ch. 13).

I have no direct experience in questionably non-dischargeable credit card debt. Your decision should be a balance of what I write about in this post. What are you really trying to do with your Chapter 13? That's the question you must answer.

[steak]

The question you ask yourself for whether you need to file a Chapter 13 or not, usually depends on whether you're trying to protect property.

Most people will say that this property should also be real property, and not just a car.

If you're trying to protect your home or other investment/property, then you should file regardless of the questionable unsecured debt.

Filing for Chapter 13, or working with the unsecured creditors, could yield the same results anyhow. If you filed Chapter 13, the creditors could move to make the debt non-dischargeable, and work with you anyhow to pay the debt back (outside the Ch. 13).

I have no direct experience in questionably non-dischargeable credit card debt. Your decision should be a balance of what I write about in this post. What are you really trying to do with your Chapter 13? That's the question you must answer.

We have a house that we would like to keep..Thanks for your help. I will look for a lawyer today. I should mention all of the possible non-dischargeable cc's to the lawyer right? I wonder if they will even take my case..

God I hate myself, I hate what I've done to my family..My wife and 2 kids do not deserve this..

[justbroke]

We have a house that we would like to keep..Thanks for your help. I will look for a lawyer today. I should mention all of the possible non-dischargeable cc's to the lawyer right? I wonder if they will even take my case..

God I hate myself, I hate what I've done to my family..My wife and 2 kids do not deserve this..

Don't beat yourself up over this. What's done is done. Many millions of people have and will continue to be in a similar position.

You will just tell your lawyer what he asks. He will ask about your credit cards, just tell them that you have these cards and you didn't pay several of them. If you care to ask the lawyer "what if" scenarios, that's what you pay them for.

The lawyer wants to know the truth anyhow, because they are there to defend you. Always be open with your lawyer.

I wish you the best. Protect that home for your wife and children. They need a roof over their heads.