Discover Card coming after me! Great, just, Great

[wayovermyhead]

So I filed bk chap 7 April 1st. Everything seems to be going fine, I went into lawyers office yesterday to reaffirm car. He sat down with "other" documents.

He told me that Discover card was possibly taking action on the $5000 I owe them. Letter stated that they may possibly come after me because they feel I had taken the card out 12/1/07 transferred a balance 12/6/08 with the intention of filing bk... NOT TRUE


So now what, what do I do, lawyer said that if they file suit against me he charges $150 per hour and there is no guarantee that the judge will dismiss it.

Anyone been through this please some advise.


THANKYOU!!

[HHM]

Start here

http://www.bkforum.com/showthread.php?t=20075

http://www.bkforum.com/showthread.php?t=20078

But yea, given that you actually applied for the card and did a balance transfer and only 4 month later filed BK, that is BAD, no if, ands, or buts about it. Was your attorney aware of the situtation before you filed, because given the amount involved and the fact that this was NEW credit, Discover's objection was practicaly guaranteed.

[wayovermyhead]

Start here

http://www.bkforum.com/showthread.php?t=20075

http://www.bkforum.com/showthread.php?t=20078

But yea, given that you actually applied for the card and did a balance transfer and only 4 month later filed BK, that is BAD, no if, ands, or buts about it. Was your attorney aware of the situtation before you filed, because given the amount involved and the fact that this was NEW credit, Discover's objection was practicaly guaranteed.

Yep lawyer knew all about it he said that I should not file right away and gave me a time frame to file where I would be ok. So basically I screwed on this one?

[HHM]

Well, read those other threads so you have some idea of what is going on.

As one of the threads points out, you have 3 options

1. Do nothing, see if they actually object.
2. Settle for some lower amount and set up a payment plan
3. Fight it (in your case, probably a losing battle and sounds like you cannot afford to pay your attorney to fight it anyway).

If I were you, I would try to figure out a budgeted amount that you can pay each month and offer a settlement. $250 per month for 10 months, or 208 per month for 12 months. etc.

You will still get your other debt discharged, so an objection is not the end of the world.

[laurannm]

Had you been making payments on the Discover card up until you filed BK? I am in a similar situation where I did a cash advance of $3k on my Discover in early March, but my lawyer felt it wouldn't be an issue as long as I continued to make payments for at least 3-4 months. Granted my card wasn't new credit however, but the first time I had a balance on it in a couple of years

[wayovermyhead]

Had you been making payments on the Discover card up until you filed BK? I am in a similar situation where I did a cash advance of $3k on my Discover in early March, but my lawyer felt it wouldn't be an issue as long as I continued to make payments for at least 3-4 months. Granted my card wasn't new credit however, but the first time I had a balance on it in a couple of years

nope I never made any payments even though I felt I should make 1 or 2 the lawyer said no dont! So crap

[FreshLikeADaisy]

Wayover, just want to reaffirm what HHM said: one creditor objection to a specific debt is not the worst thing that could happen to you. To be honest, $5000 is a fraction of your total unsecured debt, and it may be worth it to go ahead and negotiate a reaffirmation on this debt, because it will probably be much easier to pay after the rest of your debt has been lifted from your shoulders.

But -- and this is a big caveat -- do your best to have them knock down (or off!) interest and fees; if you continue to accrue interest and fees on a cash advance with a low income, it's a debt that can become virtually unpayable. So in return for signing a reaff, either you or your atty should concentrate on getting those fees & interest limited, and the clock stopped on that debt, if at all possible. Good luck!!!

[CindyLou]

Hold on...they haven't objected yet!! The burden of proof is on them at this point. I would include them in the BK and see what happens...then go from there.

You other option is that you can represent yourself for this portion of your case if they do object.

Don't go making any deals until you have to!!!!

[wayovermyhead]

thanks everyone!!!

[banca rotta]

Hold on...they haven't objected yet!! The burden of proof is on them at this point. I would include them in the BK and see what happens...then go from there.

You other option is that you can represent yourself for this portion of your case if they do object.

Don't go making any deals until you have to!!!!

I know I am new here but it seems that with a large cash advance taken a few months prior to filing is going to be hard to prove there was no fraud intended. The only defense I can see a judge may accept would be some natural disaster causing some major financial distress right after the advance was made.

If it were me I would start the negotiation process as soon as possible. Just my opinion.

[PaKettle]

Hold on...they haven't objected yet!! The burden of proof is on them at this point. I would include them in the BK and see what happens...then go from there.

You other option is that you can represent yourself for this portion of your case if they do object.

Don't go making any deals until you have to!!!!

I agree. I would consider defending yourself in this objection, IF you have any evidence to show that you did not plan to file bk at that time.

If you can come up with ANY evidence that you did not intend to file bankruptcy at the time you did the Discover transfer, then maybe you can win against them. Also, are they really willing to send an attorney to fight you for recovery of $5k?? or will they drop the objection when they see you are willing to fight?

I THINK though, if you lose, you do have to pay the full $5k as opposed to possibly negotiating downward to, say, half of what you owe them... Mighdt be better to negotiate IF they are reasonable and will knock it down to, say $2500.

Sorry this is happening to you... But you should have made at least one or two payments... (hind sight is 20/20, I know...)

[sisterfunkhaus]

a large cash advance taken a few months prior to filing is going to be hard to prove there was no fraud intended.

But is the burden of proof on him or them? If it's on them, he doesn't have to prove anything.

[wayovermyhead]

But this was never a cash advance. I did a balance transfer. Is that the same thing?

[HHM]

It really does not matter if it is a cash advance or regular charge.

But yes, the burden of proof is on the creditor, but frankly, based on what has been shared so far, this case is about as close to being a slam dunk for the creditor as they can get short of the charge being done within the 70/90 day rule.

[CindyLou]

But is the burden of proof on him or them? If it's on them, he doesn't have to prove anything.

Exactly. You are defending yourself when you don't even have to. An objection hasn't even been filed!! Even if an objection is filed you are "innocent until proven guilty" because it has been longer than 90days.

I stand by my opinion of not making any deals. This should be a wait and see situation. They may not even file an objection, and if you make a deal then they manipulated you into doing so when you had a right to discharge this debt legally!!