Motion for Relief of Stay -- Insane

[Jengo]

I'm in California. I filed for Chp 7 BK in Feb this year. A lawsuit was filed by a very corrupt group of people claiming I owed them almost 50,000. Long story. It is not secured debt at all. No property rights attached to it, etc. It would be considered unsecured debt. It's not for any property, home, car, etc. It's a no asset case because I have no assets.

They filed a relief from the stay and I'm a bit freaked out and very very angry right now. They're attempting to claim that it is non-dischargable debt and that the reason for my filing was filed in bad faith to hinder, delay, interfere with their suit. I have substantial debt and very limited income. I have family contribution which is little from a family member staying with me. She pays some to the household expenses but the reason the family is here is to help with my disabled child in exchange for monetary contribution. We've had a massive family crisis with my child that has lasted for 1. 5 years. the family member that is living with me has helped me on ocassion when I was unable to pay rent and bills and I have also had to borrow money from them to help get us through the family crisis. I have a severely disabled child and I have numerous health issues myself. My income is very limited. They're claiming in their motion for relief and continue to go after me is that I filed BK in bad faith to hinder the prosecution of the Non-bankruptcy Action. The timing of the petition filing shows that it was intended to delay or interfere with their non BK action. They are also claiming that the family member in the home shares rent which I have proof that I pay for in my checks. She has helped with utilities but not rent. They're saying that since I am saying that I pay full amount of rent is erroneous and possibly an intentional misrepresentation.

They are claiming I evaded being served with suit. Once I investigated this further, actually the server went to the wrong apartment, wrong complex and have proof of this. They are also claiming that I have not sought for child support nor do I intend to. They are claiming that I can work more and pay back well over 100,000 dollars in debt when my last 6 months income has come to about 3,300 with family contribution. They are attempting to claim that I do not live at my place of residence because they were unable to serve me with their suit. They're claiming that further analysis of Debtor's disclosers will allow the court to conclude that debtor's only intention in filing the BK petition is to avoid this one debt.

I'm extremely angry over this and now freaked out. I have proof and explanations for everything they are raising. I have copies of rent checks, etc., that are in my name. I can supply some utilities, etc., with checks in my name but others I can't because the other family member was helping us get through our crisis ordeal with my child. Come on, to avoid one creditor only when my debt now is well over 100,000 and my monthly income is 3300. I've been working but have been have to take time off because of doctor apptments for my child and myself because of my own health issues.

I'm freaked out. I have an attorney and having a hard time getting a hold of them. I've talked to someone at their office. I wrote up a 10 page response explaining and then sent it to my attorney's office. I'm going to be calling them again and emailing as well.

Can they do this? This is insane. On the amount they're saying I owe them, it's not attached to any property at all and is considered dischargeable but they're saying it's not dischargeable. Given the issues they're raising and basically asking for an investigation into what I've reported, how much evidence am I going to have to bring in. I already plan on bringing in documents to the hearing that is scheduled such as copies of rent checks, copies showing that they never served me because they attempted service at the wrong location, copies of lease agreement, letter from front office verifying that I live at this address, etc., etc. I can show that I started the BK process two weeks before they filed the suit showing that I didn't file to hinder their ability. But that it was the fact that I had way too much debt and so little income.

Any response at all regarding this would be most appreciated as I am kinda freaking and so angry right now. I can understand a motion for relief if it was a home that I owed on, a car, etc., etc., but its not and I have no assets at all, no savings account, and so forth.

Please and thank you for any responses

[music12]

the only relevant question is what their suit is about. if it doesn't fall into very specific categories of non-dischargeable debt (something like fraud or some criminal fine or restitution), then what they claim doesn't matter. it's ridiculous to fault you for filing bk to hinder their ability to sue you - the whole point of bk, a right given in the constitution, is to stop all attempts at debt collection. half the time people file for bk because there is a lawsuit pending against them or they know one is coming. also, it wouldn't matter even if you had avoided service, so i don't see what they are trying to say.

do they have a lawyer?

my feeling is that the worst that could happen is that if they have any actual evidence showing that you lied somewhere in your bk petition (which from what you say they don't), the trustee might scrutinize your case a little more than usual. i seriously don't see the bk court lifting the stay to allow them to continue to sue you. that would go against everything that bk is about.

so try to relax (i know, much easier said than done).

[justbroke]

Right, the only real legal question is if their request for relief actually has merit and whether they are entitled to the relief requested. In other words, can they prove that they served you properly, that the debt is otherwise non-dischargeable, and that you used fraud. That's a pretty high bar.

If you have an attorney and your attorney is comfortable, then you should be comfortable. Relief from Stay hearings happen all the time. From my study of at least 100 stay relief requests, the overwhelming majority of the ones brought on by non-banks and non-secured creditors... were denied!

Since they brought forth the request for relief, they have to prove the points and to show that they are entitled to the relief requested. I think they also made a procedural error. They should be filing a complaint to determine non-dischargeability not a stay relief motion... in my opinion.

[Dst1]

I'll just chime to say I agree with the prior posters. They can file anything they want; that doesn't mean they have a leg to stand on. That stuff about fraud is standard language; they have to say that because they can't legally say "wah! wah!" which is exactly are what they are doing.

A ten page response? That's a little much. Simply say, "tell it to da judge!"

[Jengo]

the only relevant question is what their suit is about. if it doesn't fall into very specific categories of non-dischargeable debt (something like fraud or some criminal fine or restitution), then what they claim doesn't matter. it's ridiculous to fault you for filing bk to hinder their ability to sue you - the whole point of bk, a right given in the constitution, is to stop all attempts at debt collection. half the time people file for bk because there is a lawsuit pending against them or they know one is coming. also, it wouldn't matter even if you had avoided service, so i don't see what they are trying to say.

They're claiming that I owe them 50,000. No. It doesn't fall into non-dischargeable debt. They're just saying that I owe them this exorbitant amount. No, I didn't avoid service. They never served me. I found out about it through another family member who they are also attempting to go after. Actually I investigated this claim that they served me. What I found out is that the service company they use and their courier attempted to serve the wrong person, wrong apartment, wrong complex. I called the courier service and told her what had happened. She had the nerve to ask me if I wanted a redelivery of the lawsuit and I told her no; that it was already being disputed. I'm assuming since their idiot servicing company couldn't figure out where I was they don't have anything to stand on anyway in regards to their filing a relief of stay in regards to their lawsuit since there's proof that they screwed up and in fact I was never served with the lawsuit.

That's another thing they're attempting to get an order barring ANYONE who is not the debtor (me) from filing from bankruptcy on their alleged claim and debt which is just insane and I don't think they would be allowed to strip EVERYONE'S rights and filing for BK on them. I'm now afraid that they are going to attempt to go after my other family members with lawsuits and them having to defend or have to hire a lawyer to defend showign they aren't responsible for the debt.

do they have a lawyer?

No, they don't but the person filing is a lawyer. He was my past legal representation and he is claiming that I racked up 50,000 in 3 months for legal fees which they have a so called detailed billing which is again insane because they're attempting to claim that they pretty much worked on my case 8 hours a day for almost 2 months straight. Case wasn't complex at all and have an order stating this and that the hearing would only take one day. Anyway, I fired them in January because I had found out that they did substantial damage to our case amongst other issues that I had found out. That case that they butchered has been withdrawn. I withdrew it after I fired them.

my feeling is that the worst that could happen is that if they have any actual evidence showing that you lied somewhere in your bk petition (which from what you say they don't), the trustee might scrutinize your case a little more than usual. i seriously don't see the bk court lifting the stay to allow them to continue to sue you. that would go against everything that bk is about.

No. They don't have any evidence. They're trying to attempt to state that although i live with one family member who helps with my disabled son, they're trying to say that what I've reported on my BK petition and being responsible for my monthly living expenses is erroneous because they're trying to say that all rent and utilities is shared which would lower my monthly living expenses. Which this is wrong. They know that this person was helping me at times and I would occassionally ask for help with rent, etc., but again this was a verbal when I told them this. The person in my home does help on ocassion especially if I can't do it but the rent, etc., has been paid by me and I have copies of all my rent checks showing that I paid it.

They attempted to use a signed declaration from six months ago trying to prove that that is where I am living because they were questioning where I lived. Well, their courier service couldn't find my actual location and attempted service to the wrong person. I called the service company and told them this so i am assuming that the courier service may have called them to let them know that they screwed up and didn't serve the right person.

I don't know. In looking at their motion and the way it is done, it's absolutely ridiculous given they don't have a leg to stand on. I have proof of everything they are alleging, especially that they serviced the wrong person, wrong apartment and spoke with the wrong apartment complex manager.

I know I shouldn't worry about this because I don't have anything to hide but so much harder said than done. Unfortunately our system doesn't always work and those that are innocent easily can get sh*t on sometimes.

[Jengo]

OMG, thank you everyone for replying. I've been so stressed out over this because if I don't get a discharge or it gets dismissed as these people are very corrupt, I'm screwed financially. Not good to have bank accounts taken from me, any wages I am earning, etc., when i have my own very serious health problems and my child is substantially disabled.

[tigergem]

They sure know an awful lot about your personal life to have not known where to find you for service.

[Jengo]

They sure know an awful lot about your personal life to have not known where to find you for service.

Yeah, they do because they represented me in a case for my child and there's been many emails back and forth. But the courier service couldn't find my apartment complex.

I have looked in all those emails where it may state that the other family member was responsible for rent and utilities, etc., but I haven't been able to find any. I found some but it was always me complaining that I couldn't do it and was struggling with coming up with rent. It was a verbal and they knew that this person was helping me a lot and lending money when I needed it because at that time my son was in the hospital. They're also attempting to state that I can work more which I have been working but economic crisis has taken toll on my industry. I'm an independent contractor. I was working but I was having to take time off because of my son and there are emails regarding this and that I was having to take time off from work because of so many doctor appointments and so forth so it did lower my income. But the point is is that there are still many doctor appointments to come in the future for him as well as myself so regardless I have to take care of my health and my son's.

They're also trying to claim that there is no child support and that I have no intent to divorce or legally separate and that this support could be used as income. I have been separated for about 3 years now and there is no agreement for child support and I do not recieve child support and there is an agreement with him that as long as he provides insurance for me that I wouldn't ask for child support. I am being provided insurance through his work because I am uninsurable because of so many pre-existing conditions. I've already checked into getting my own insurance and the premiums are way through the roof and very little coverage or they deny me straight out.

It seems they're just trying to show that the family member is contributing to rent and sharing rent, paying utilities lowering daily living expenses, showing that I could get money for child support...enough to lower it to qualify me for a chapter 13 and paying back my debt. Regardless of that, my income falls well below the household median in my state and the reason why I qualified for chapter 7. But the issue is unfortunately the person that is living with me is extremely upset at the whole situation and is threatening to move out, I had to name them on my BK because I had to borrow money from her and I do owe her quite a bit because of the amount I had to borrow from her to get through the family crisis. Reality is, even if they can show which will be very difficult that they are paying rent...she has paid some utilities and there are checks with her name on it but there are no checks for payments of rent because I'm the one that's been paying rent and have proof of this, I can't depend on her or anybody else to be responsible for my life and my debts. If she moves, i am screwed. I guess if it gets converted to a chapter 13 and then she leaves I will have to reconvert it back to a chapter 7.

But also, another issue with the person living with me helps a lot iwth my child especially for daycare and I did not claim this in my BK. If she leaves, then i will have daycare costs as well.

I don't know. I have yet to talk to my attorney. BUT a lady today emailed me and said she checked the court website and there so far is no motion that has been filed. She asked me to please send her a scanned copy of it. I'm assuming since they never served me and I have proof of their screw up and attempting service to the wrong apartment complex that they may very well have withdrew their motion because this is what a large amount of their motion was based on and why they were attempting to use the signed declaration in an attempt to show that that was my CURRENT living situation and what I signed 6 months ago.

Anywya.....OI. I just wish these A holes would leave me and my family alone.

[tigergem]

If they didn't file it and you didn't get served, how do you even know it exists?

[Jengo]

If they didn't file it and you didn't get served, how do you even know it exists?

Because they served my husband and he told me about it so I am aware of the lawsuit

[tigergem]

Is your husband party to your bankruptcy?

[Jengo]

Is your husband party to your bankruptcy?

No. He's not. But he will also have to file for a Chapter 13 because of them and his overall debt now is exorbitant with a lot of nondischargeable debt.

[tigergem]

So why was he served with a Motion for Relief from Stay if he hasn't even filed a bk of his own yet? And why would he have been served with a Motion for Relief from Stay in your bk if he isn't a party to it?

[Jengo]

So why was he served with a Motion for Relief from Stay if he hasn't even filed a bk of his own yet? And why would he have been served with a Motion for Relief from Stay in your bk if he isn't a party to it?

He wasn't served with a otion for relief. I was. He was served with the lawsuit back in Feb of this year which in turn he told me about the lawsuit

[tigergem]

Oh ok. Gotcha. I was having trouble getting my head around all of this. It's quite a convoluted situation, and doesn't quite all make sense. If this was a social service organization of some type that provided your family with assistance with your child, one would think their attorneys would be more sophisticated than this situation portrays. What are they trying to say you owe them money for anyway?