apealing a trustees order

[Interlaw]

Correct

In such cases, I have asked the Court to strike the discharge so that the case can be converted to a Chapter 13.

Brett Weiss
[email protected]
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The Small Print: This response is for discussion purposes only.
It isn't meant to be legal advice and you shouldn't treat it as
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[needhelp]

Great news im screwed........

The annuity comp has suppended payments to anybody because there is a dipute to has rights.

the trustee sent a letter to all 3 of the companys i have annuitys with. 2 responded saying that the payments are not assingable without court order.
the 3rd comp says without a court ruling they will not send it to anybody.

Thats the problem we use this money for living expenses. Without this I cant pay my current bills. So them suspending the payments is bad news. we are scrambling to find a way to make it till this gets resolved. 1300 bucks a month is hard to replace.

Life is grand.

filled 12/05...2grand
discharged 6/06 as asset case 1350 a month for 28 months
being totally screwed priceless

[SinkingFast]

Have you discussed the option InterLaw suggested with your attny??

To strike/dismiss the Discharge of the Ch 7 and file a Ch 13 instead??

If so, what's your attny's take on that approach??

Maybe the Court will take a nominal $200/mo payment for 3 years instead of your whole annuities payments.

[needhelp]

my lawyer seems to think he wont be able to get a court order or wont even try to get one. Thinks he will give up and just close the case. hopefully this will happen. but now that they have suppended the payments it puts us in a situation where we have to find some money to make it till its setteled.

We have looked in to cashing in a annuity to pay the debts but thats a last resort.


Can we make an offer to the trustee?
Say he wants 37500 to pay debts.
can i offer say 20 grand.

is this done alot.

[HHM]

Go speak to another BK attorney ASAP.

I think what has been suggested earlier about striking the discharge and converting to a 13 may be your only hope.

The problem here...and one your attorney should have probably been aware of, is that income from annuities is NOT wages and since the annuities existed before you filed, strictly speaking, the trustee is entitled to the entire balance of those annuties (they are assets of the Bankruptcy Estate), or at least the equivelant cash value if they were liquidated with subtracting taxes and penalties. The trustee probably wants the payments because of the difficulty of liquidating the annuties. But essentially, you said you were looking at cashing in the annuities to pay the debt, but that is essentially what the trustee is doing...by you filing for BK, you have given the trustee the power to make that decision.

Regarding your suggested offer, where would you get the $20K?

I am in no way current on Bankruptcy Procedure, so I don't know if this is anything you can appeal; appeal is probably the wrong word anyway since the trustee doesn't really make orders...but I suspect that you would lose anyway...so you probably want to go get a GOOD BK attorney, reopen your case and convert it to a 13. Under a 13, the annunities would be treated as part of your income...however, realize, that the basic tenant of a chapter 13 is that your creditors must get at least as much from a Chapter 13 as they would from a Chapter 7, so you may be screwed either way. So, if in a liquidated Chatper 7, your creditors would get $37,000, then your chapter 13 would have to provide that same $37,000...Sorry

You may seriously want to take action against your BK attorney, there are attorneys who do specialize in Professional Negligence, but cases against BK attorney's tend to be weak becuase given your financial problems before filing BK, you really don't suffer that much in damages (i.e. you would have had to deal with this debt sooner or later, so you would have lost some money, somewhere at sometime). About all you can argue is...if I had known, I wouldn't have filed...but some debts were discharged, so you received a tacit benefit. I don't think you have a malpractice claim, but probably a professional negligence, given your financial situation with the annuities, (note, I don't know your entire financial pictures, so I may be wrong here), the attorney should probably have recognized and advised you that Bankruptcy might not be in your best interests.

In any event, good luck.

[HHM]

Although it may be a long shot at this point, some states do provide exemptions for certain types of annuities...(again, at the very least, your attorney should have known to claim these exemptions)...so you may want to look into amending your petition to claim an exemption.

[tradewiz50]

Needhelp,

Did you not know that when you filed your chapter 7 with the bankruptcy courts, you were giving total control over to the trustee?