Notice of Service on a Motion to Dismiss?

[justbroke]

You know, in the long run, I don't know why you (moonflower) wouldn't just let the case continue to its natural conclusion. You may have no choice anyhow, as I'm confident, but not adamant, that the Judge will deny your motion to dismiss.

The facts are you (moonflower) have stepped into the deep end of the jurisprudence pool. If your case should be dismissed, you will be able to work with new attorneys, but much of the issues surrounding the treatment of personal property is already done and could preclude you from filing for a year or more. Many people make preference errors because they don't know that they are going to file. You just either have to accept the consequence of the preference or wait a long time to file.

You say that you want this government (DHS) job, but I don't think you could clean up your credit, quicker than with this pending bankruptcy -- you know that's already in progress and post-341. It may be fortuitous that the judge denies your motion to dismiss and you end up discharging this debt that you now want to "settle" on.

[music12]

i don't know enough about your situation, but i agree with justbroke: it seems that it would be in your best interest at this point to just let the bk take its course. i hope whatever the judge decides will be in your best interest.

what reasons did you give in your motion for requesting to dismiss? was there a problem at the 341?

[moonflower]

Motion to Dismiss was filed and hearing set for May 24. Now theres a new twist. I put in a Motion for Voluntary Dismissal because of an imperfected lien on my car with my Dad, and the trustee wants to sue my Dad for the outstanding lien on the car. $4700. The trustee called me today and said if I withdraw my Motion to Dismiss without prejudice, then he will settle for $3800. I filed pro se, and I want to dismiss so I can file with an attorney. Think I should move forward or settle with the trustee?

[justbroke]

Motion to Dismiss was filed and hearing set for May 24. Now theres a new twist. I put in a Motion for Voluntary Dismissal because of an imperfected lien on my car with my Dad, and the trustee wants to sue my Dad for the outstanding lien on the car. $4700. The trustee called me today and said if I withdraw my Motion to Dismiss without prejudice, then he will settle for $3800. I filed pro se, and I want to dismiss so I can file with an attorney. Think I should move forward or settle with the trustee?

I can't provide you with the legal advice on proceed to dismissal or not. What I told you before is QUITE clear now that the Trustee responded.

The Trustee is going to fight your dismissal. I don't see how you are going to get one. You personally need to weigh the issue. I don't think you can fix this even with a dismissal. The only thing that could fix it is (near term) is a Chapter 13, but you'd be in that for years.

You could counter the Trustee for $3000, but I don't see how this case isn't going to not be dismissed. The Trustee would just sue your Dad. This is an asset case. You are going to pay, one way or the other. The nice thing about the Trustee is that you could arrange interest free payments over 12 months to pay this. (Yes that's $250/month for 12 months @ $3,000)

You can't dismiss just to go get a lawyer. It has a life of its own now, and the Trustee smells blood (money) in the water.

[tigergem]

This specific topic seems to be running in more than one thread.

moonflower, you should listen to justbroke. justbroke is one of the most profound and knowledgeable people you are going to find on this forum.

For example, I did not even think to tell you to try to convert to a 13, and although I knew you should counter the trustee's offer, I did not know what amount would possibly be appropriate. And I am sure jb is correct. Your motion to dismiss is probably not going to fly. Especially not without prejudice.

[moonflower]

justbroke, Thank you for the advice. I didn't know they would allow me to spread it out over 12 months. I will try a counter offer, although I doubt it will fly. Trying never hurts, right? Maybe $2800 now, or $3500 over 12 months?

An attorney suggested the Chapter 13 conversion, but again she thought I should try the Motion to dismiss first. But the attorney fees will probably cost close to the same.

Tigergem, yes I answered you in another thread. Thank you for your counsel.

I will definitely try your suggestions.

You guys are great!

[justbroke]

I do wish you luck and maybe a sympathetic judge will step in, but I just see your dismissal or want of a dismissal as a bad move, personally.

[tigergem]

I do wish you luck and maybe a sympathetic judge will step in, but I just see your dismissal or want of a dismissal as a bad move, personally.

heh. I wonder if the trustee offered a settlement for withdrawal of the motion because the judge is sympathetic and the trustee knows it? What do you think? I mean if the trustee was hedging his bets for a dismissal of the motion, would he have offered a compromise?

[justbroke]

No, it's just because litigation costs time and money. The Trustee usually hires an attorney to litigate on their behalf, and that would eat up some of the "potential" $4,700 preference avoidance.

Apparently, the Trustee believes that his litigation costs would be $900 and offered to settle for $3,800.

[tigergem]

No, it's just because litigation costs time and money. The Trustee usually hires an attorney to litigate on their behalf, and that would eat up some of the "potential" $4,700 preference avoidance.

Apparently, the Trustee believes that his litigation costs would be $900 and offered to settle for $3,800.

ah... I see. Ok. Thank you for your insight.

[moonflower]

I got the same feelings as Tigergem. I think the trustee is uncertain as to the outcome of the dismissal hearing. He said, "knowing the facts of your case, it may happen. But I'm going to file an objection and I have just as much chance of prevailing as you."

But now that I know he has costs that will eat up the $4700, I can see why he may accept a $3000 offer. I believe the $3800 number came from the appraisal of the car from the auction house he uses.

Would there be a reason for him to accept my offer of $3000 when he thinks he can sell the car for $3800? Are there administrative costs involved for him selling the car at auction?

[justbroke]

[QUOTE=moonflower;410761]I got the same feelings as Tigergem. I think the trustee is uncertain as to the outcome of the dismissal hearing. He said, "knowing the facts of your case, it may happen. But I'm going to file an objection and I have just as much chance of prevailing as you."[/QUOTE}Yep, it's nothing to do with outcome. It's the costs to prosecute the complaint. If you think the appraised value is $3,800 then offer the Trustee $2,800.

But now that I know he has costs that will eat up the $4700, I can see why he may accept a $3000 offer. I believe the $3800 number came from the appraisal of the car from the auction house he uses.

Remember, the Trustee still has costs if he has to "fight" with you in Court. The Trustee will have attorney fees of about $250/hr and that's going to eat into the money the Trustee could get. If your Dad, or you, were to just surrender the car, then the Trustee would have more fees trying to auction the car. So, I think... if the car is valued at $3,800, then offering $2,800-$3,000 is a fair counter-offer. Of course, you offer the $2,800 on a 12/month 0% interest plan. (So yes, there are administrative costs for an auction as well. Plus the Trustee would pay STORAGE fees of about $25/day until auction.)

[moonflower]

Thank you for your input and expertise. I will approach the trustee on Monday.

Have a great weekend.