GF owes me 2k and using my BK as reason not to repay? Help?

[Aledrell]

GF and I agreed that she'd claim all of our jointly owned home housing interest on tax return as she benefited more. In return she'd pay me what I lost by not claiming deduction (2k). When we got our refunds she needed expensive surgery so I told her to use the money she was going to give me to help pay for it and she could pay me back when she could. Now this was 8 months before I filed CH 7, I got discharge in Dec 09 but case still open as trustee is wating for my tax return money, I filed extension Now we hate each other and she denies it ever happened, so I filed in small claims and she wants to hide behind the BK as reasons not to pay. Now ofcourse this is not on my schedules anywhere. Should I ammend? What would happen?
Now in my state we have the following exemption, can I use this?

Any claim for damages recoverable by any person by reason of any levy upon or sale under execution of his exempt personal property or by reason of the wrongful taking or detention of such property by any person, and the judgment recovered for such damages.

The money was to be used for a Roth IRA, but never opened one, not sure if that helps. I really don't want the money I simply don't want her benefitting from my generosity. How can I get her back? Thanks.

[despritfreya]

In response to:

"Now we hate each other and she denies it ever happened, so I filed in small claims and she wants to hide behind the BK as reasons not to pay. Now ofcourse this is not on my schedules anywhere. Should I ammend? What would happen?"

1. If she owes you money that IS an asset of the bk estate and should have been listed on Schedule B. You need to immediately amend Schedule B and send a copy to the Trustee.

2. You had no right to file a law suit in an effort to collect an asset that, as of the day you filed bk, did not belong to you. You are not the correct Plaintiff. You need to send a copy of the suit to the Trustee and apologize for trying to collect $$ that belongs to the bk estate.

3. If you correct your errors now you should be fine. If you don't, you may be in trouble when the Trustee finds out and you can bet your ex is going to tell him. Do the right thing now.

In response to:

"Now in my state we have the following exemption, can I use this?
Any claim for damages recoverable by any person by reason of any levy upon or sale under execution of his exempt personal property. . ."

No, this does not apply in your situation as you are not claiming damages for someone wrongfully selling your exempt property. You loaned your ex money. The fact that YOU planned on putting the $$ into your IRA is irrelevant. Now, if you had owed her money and SHE somehow got a bank to give her money from your IRA account to satisfy the debt, it appears that you would be able to use this exemption in recovering the $$.

[Aledrell]

[QUOTE=despritfreya;437748]

[despritfreya]

In response to:

"Also if the Trustee fails to go after this money don't I get back according this if I schedule it?"

Yes. Under 554 if you properly disclose the asset and the Trustee does not administer it, it will be abandoned either by the Trustee filing a Notice of Abandonment or when he closes the case. However, they key to this is disclosure, disclosure, disclosure. If the asset is not properly disclosed it is never abandoned.

The problem you have is that you have not listed this asset. You cannot proceed in an effort to collect it as it does not belong to you. If you do not disclose the asset, it will never belong to you and, you run the risk of being charged with bankruptcy fraud. You need to stop what you are doing, amend Schedule B and give all of the information, including the filing of the suit, to the Trustee. The Trustee will then decide if he wants to keep control over the asset for the benefit of your creditors. This choice does not belong to you.

Lastly, while you think your ex will not tell the Trustee, you better act as though she will. Murphy's Law - what can go wrong, will go wrong. Get right on it on Monday.

[Aledrell]

In response to:

"Also if the Trustee fails to go after this money don't I get back according this if I schedule it?"

Yes. Under 554 if you properly disclose the asset and the Trustee does not administer it, it will be abandoned either by the Trustee filing a Notice of Abandonment or when he closes the case. However, they key to this is disclosure, disclosure, disclosure. If the asset is not properly disclosed it is never abandoned.

Lastly, while you think your ex will not tell the Trustee, you better act as though she will. Murphy's Law - what can go wrong, will go wrong. Get right on it on Monday.

No problem I can do that, my small claims also includes return of an engagement ring. It was given in 2005, not sure it was technically my property at filing because the condition had not yet been broken. Regardless my state has a $1000 engagement ring exemption......would you list it? I'm hoping I can simply ammend my pleading to the ring only so it's not like I brought suit just for the loan. I also need to figure how to respond to the motion to dismiss with prejudice because I may regain standing soon.

[helpmeout]

That $2K does not belong to you, it belongs to the Trustee. You will need to amend your petition to reflect the asset that you left off of it.

[Anon]

Forget the money and start your new life, sans GF.

[helpmeout]

She won't tell the trustee anything, she doesn't want to pay anyone. She has an attorney helping her and I think they're convinced if it gets scheduled the Trustee will not pursue it because the ends will not justify the means. All the money can go to the trustee for all I care, family members make up 90% of my unsecure debt due to divorce costs. I want them paid.

You need to amend your petition, because if the Trustee finds out about this (and given that there IS a legal action on your part to recover this asset, the chances are good).

The Trustee can undo your discharge and make it to where you can't file on the debt listed in the petition again. Fraud is not taken lightly by the bankruptcy court.

[Aledrell]

So here's my plan then let me know if you see an issue. So Monday I ammend my schedules and file a motion for modification of the automatic stay. The motion will outline my stupidity and request the court allow me to pursue a judgement and/or funds on behalf of the estate and creditors. Since she's going to fight me on the engagement ring anyway. I will also file objection to motion to dismiss in civil sighting motion filed in BK and my other cause for action (engagement ring) and request motion to stay proceeding til BK rules. It's kind of complicated but rarely if ever has the BK court seen someone willing to chase down money for them for free, truely vindictive

[despritfreya]

You could try the MLS but the Trustee is going to object, and, most likely the Judge will roll his eyes at you. At that point the Trustee will be pissed: 1) you failed to initially list the asset 2) behind his back you filed suit to collect an asset that does not belong to you 3) you discovered the err of your ways and amended and then had the audacity to request the Court allow YOU to proceed in state court.

Try your game-plan and you can bet the Trustee will be all over you. If you want to go down that path, feel free, but, my guess is that you can kiss the discharge good bye. All over $2,000.00 and you need to be vindictive. You really need to let it go and move on. List the asset, let the Trustee try to collect or abandon. If he abandons then you can continue down the path you have chosen instead of moving on.

Oh, I forgot to add... The Trustee is not going to allow you to represent the estate. You are clearly on a mission which means the Trustee has to worry about your actions which, if you are allowed to proceed, are binding upon him. That leaves him open to suit for your conduct as a vindictive litigant. Won't happen.

[Aledrell]

I'm not sure I see it that way, but I hear you. The trustee seem extreemly overloaded and this assett is a verbal agreement I'm 99% sure from other cases I've seen that they won't even try to pursue it because the ends won't justify the means. I'm not so worried about them dismissing my case because I have been ligitmately diagnosed with ADD one of the main systoms is forgetting small details and if it does get dismissed I am judgement proof and will be for as long as I need to be. On VA benefits can't touch them.............I would also like to add that Trustee work on commision the more they get for the estate the more they take.....not sure how trustee would be liable for anything by simply returning ownership rights to me with the agreement that any proceeds go to them.

[tcreegan]

complicated.......

<she took his IRS credit, was supposed to give him back his share (2K)>

Do you have any of this in writing? Please say you do......

<GF owes me 2k and using my BK as reason not to repay? Help?>

Huh??? There is nothing in the BK law to hide her. If you can prove she owes you that money, the trustee has legal permission to go and get it from her. The trustee can also go after the $$ as a preferential payment. If the trustee fails to go after the money, you can wait for your case to close and then sue her in a local court for the 2K YOUR debts get discharged in a BK, but NOT her debts nor $$ owed to you (income)


<GF and I agreed that..................... 8 months before I filed CH 7,>

bottom line, you gave her a loan. Any documentation? Any? an email?


< I got discharge in Dec 09 but case still open as trustee is wating for my tax return money, I filed extension>

This has nothing to do with you and GF. Standard case of trustee going after tax refund $$. This involves $$ on your return, not hers. Faster you file, the faster your bk case can close.

<Now we hate each other and she denies it ever happened, so I filed in small claims and she wants to hide behind the BK as reasons not to pay.>

There is no "hiding behind the BK" No where to hide, she owes the money.
Filing in small claims court needed to be approved by your bk trustee. Tell the trustee IMMEDIATELY about the small claims suit. Do what she/he tells you.

<Now of course this is not on my schedules anywhere. Should I ammend? What would happen?>

Seems like Sched. G is where this belongs. Scan statement of financial affairs, Sched J & I, to see if anything there gets altered. ($$ she owes is an asset)


<Now in my state we have the following exemption, can I use this?

Any claim for damages,.................. recovered for such damages.>

Does not look helpful until you are trying to collect a judgment from her.



Step 1 Did the trustee go after her for the $$?
Step 1a Find out what your cash exemption is and ask the trustee for any amount he collected up to the exemption limit.
or
Step 2 Ask why the trustee is not going after the $$ (This is to get some free legal advice for when YOU go after the $$)

if needed
Step 3 File in the appropriate court to get a judgement against her for the 2K. You win this, you can collect by garnishing wages or levying bank accounts.

<The money was to be used for a Roth IRA, but never opened one, not sure if that helps. I really don't want the money I simply don't want her benefitting from my generosity. How can I get her back? Thanks.>

All irrelevant, no help here. What you really need is to able to document the loan from you to her.

Good luck with all this,

Tom in Colo

[despritfreya]

To Aledrell:

I now know you are in AZ from one of your posts. Who is your Trustee? Use initials. Once I know who it is (assuming I do) I can tell you what will happen.

[helpmeout]

I'm not sure I see it that way, but I hear you. The trustee seem extreemly overloaded and this assett is a verbal agreement I'm 99% sure from other cases I've seen that they won't even try to pursue it because the ends won't justify the means. I'm not so worried about them dismissing my case because I have been ligitmately diagnosed with ADD one of the main systoms is forgetting small details and if it does get dismissed I am judgement proof and will be for as long as I need to be. On VA benefits can't touch them.............I would also like to add that Trustee work on commision the more they get for the estate the more they take.....not sure how trustee would be liable for anything by simply returning ownership rights to me with the agreement that any proceeds go to them.

Kind of hard to use the ADD as a defense when you filed a civil suit.

And the banktruptcy court can do a lot more than just dismiss the case. They can throw you in jail.

You are not judgement proof when it comes to perjury. Stop playing games, file an amendment to correct the petition.

[Aledrell]

Kind of hard to use the ADD as a defense when you filed a civil suit.

And the banktruptcy court can do a lot more than just dismiss the case. They can throw you in jail.

You are not judgement proof when it comes to perjury. Stop playing games, file an amendment to correct the petition.

I already said I was going to ammend the schedules...trying to figure out where to put it......and does anyone know if you can amend one page versus resubmitting the whole packet etc???? and "helpmeout" thanks for the negativity.......