How does on fight an objection?

[manglicmot]

I have been searching in google and on here and I haven't found anything where an individual fought an objection to a discharge of debt. The closest thing I found was from a poster called cali7 in 2005 who didn't fight his objection, but settled it.

I have a $4K cash advance from November of 06. I immediately paid back $400, then made above minimum paymnets for January and Feburary. I expect my filing to take place this week. That puts the charge at five months ago, outside the 70/90 period, but it's large enough to warrant an objection from the creditor. This is one creditor of six that I'm filing on, none of the others have any charges in the last year or more. I'm filing chp 7.

The attorney fees I paid do not cover fighting objections, so I will try to fight on my own. I believe I can do that by notifying the judge, or trustee or whomever, that I have fired my attorney. Is this correct? (I'm asking if this is correct procedure, not if it's wise). I assume there will be paperwork that I have to file to, 1. fire attorney, 2. answer objection, 3. something else that I haven't thought of. Exactly what forms do I need and how do I file paperwork, just take it to the court and look for the clerk?

I'm in the southern district of California.

If there is anything out there that shows court cases of individuals fighting objections from credit card companies in chapter 7, can you post links here? I'm not finding anything in google.

[BKOnce]

Might be possible but hard & rare indeed.

[HHM]

You don't have to fire your attorney.

There is no problem in being ready, but you should at least talk to your attorney about whether it is worth the effort to fight it. After all, given the age of the debt, (assuming they object in the first place), you can probably settle it for 50% and make payments over the course of 12-18 weeks. If you go to court and lose, then you have to pay back the entire amount, plus interest, etc and possibly their attorney's fees.

As for the forms, all I can say is to search web. As far as I know, there is no "standard" form that the court prepares for you to answer an objection. But I am sure you can find sample answers. After that, generally a hearing will be scheduled, you show up, testify and answer questions, and the judge makes a ruling. After you file your answer, the creditor may request some documents from you, but other that, the answer is generally the only thing you need to prepare. And you do not need to fire your attorney.

Honestly, you should try to hold out another month, 6+ months seems to be the practical cut off for creditor objections.

[spell]

It sounds like your case isn't filed yet. Why are you so sure they're going to object to discharge?
They'd be barely breaking even in hiring a lawyer to bring up this objection.

Do you have a reason why you need to file very quickly? There are legitimate reasons, but most cases are not urgent. A 3-6 month delay would increase the odds of them not objecting.

If it did come down to them objecting, and you don't have the time or inclination to wait them out, just plan ahead for their objection. Likely they'll claim you were already planning you bankruptcy when you took out the loan.
Not to put too fine a point on it, but.... were you?
If so, there's no point in fighting the objection, I dislike perjury and I'm quite sure they'll ask you directly.
If not, the truth shall set you free. Simply lay out for the judge your exact timeframe for deciding on bankruptcy and how this debt fits into your overall decision.

[HHM]

They'd be barely breaking even in hiring a lawyer to bring up this objection.

Actually, that is not an accurate characterization, if this is a major creditor, (i.e. Chase, Discover etc), the attorney's do these cases on a 20-25% contingency.

They "might" object, and as I said in my earlier thread, if you can hold off filing BK until there is 6 months from the date you took that cash advance, you significantly reduce your risk of the creditor objecting. However, if you file BK, and they object, keep an open mind about settling, there is risk to going forward with fighting it, i.e. the debt, in its full amount is declared nondischargeable, plus interests, and "possibly" their attorney's fees, the reward may be that you win the case, but that is not something we can determine here. Thus, taking a settlement of 50% or less, and paying back the debt over 12-18 weeks might be better. Note, I am NOT talking about you settling the debt BEFORE you file BK, you settlement occurs after you file BK in lieu of a creditor objecting. Essentially, you would be reaffirming the debt.

[frankies_mom]

Just a question. Is the settlement payback really only 18 weeks? Say if half your debt is $5000, that is a lot to pay back in 4 months time frame. I know I couldn't possibly do it without taking 3 or 4 jobs! I ask because I have a chance that I may have an objection but I am not opposed to settling if it is something I can handle. After all, I did take out the money and if they are willing to work with me on a percentage it is only right.

[JollyGG]

Just a question. Is the settlement payback really only 18 weeks? Say if half your debt is $5000, that is a lot to pay back in 4 months time frame. I know I couldn't possibly do it without taking 3 or 4 jobs! I ask because I have a chance that I may have an objection but I am not opposed to settling if it is something I can handle. After all, I did take out the money and if they are willing to work with me on a percentage it is only right.

12 to 18 months, not weeks. I assume that was a typo.

[HHM]

Yes it is a typo, but realize they tend not to offer long repayments, most will initially offer 6 months, but you can generally get them to agree to 12 months, and sometimes 18.

[frankies_mom]

Is this something your lawyer helps with? Is their room for negotiation or do you have to accept what they offer you? Do you get a 1099 with this type of settlement or no b/c it is bankruptcy?

[HHM]

Is this something your lawyer helps with? Is their room for negotiation or do you have to accept what they offer you? Do you get a 1099 with this type of settlement or no b/c it is bankruptcy?

Your lawyer would probably help with the settlement since it usually only consists of a couple phone calls and going over a reaffirmation agreement with you. And no, you do not get 1099'd because the settlement occurs in the BK context.

[DeadManCrawling]

I think you are worrying yourself too much over this. You are right, it IS outside the window, and you re right, they will look at it.

In so many cases I have read, this has come up. Now, I am not talking about this board, I am talking about ACTUAL cases I read-the actual judgements, as written by the BK judges.

Here's what they generally look for:

Does it APPEAR you tried to defraud someone? In looking at this, there are two considerations. One is the length of time before filing. You are outside the normal window, which is great.

THEN, the next question is INTENT. Did you pay back any or some of the amount? Your answer is YES. That is probably as far as anyone will take it, if they even examine it at all.

It is NOT a fraudulent charge unless you:

A) Knew you were insolvent at the time you took the loan. (No one would ever admit this if it were true anyway)

B) Never intended to pay them back.

It is NOT fraudulent if you intended to pay it back, but circumstances changed-you didn't get the raise you counted on, other debts skyrocketed, or you simply weren't capable of for any reason, including poor planning.

I have a 2k cash advance from January. I don't think it will be brought up, as the payment went from the card to my checking account. Then we wrote a check for 2k to cover part of our newly increased 12k per year hurricane insurance fee.

Ours is in the "window" of fraud, but it's clear what we used it for.

I'd be happy to dig up some of the actual rulings I am speaking of, if you like. I believe a couple were in southern California. Let me know.

DMC

[manglicmot]

I think you are worrying yourself too much over this. You are right, it IS outside the window, and you re right, they will look at it.

In so many cases I have read, this has come up. Now, I am not talking about this board, I am talking about ACTUAL cases I read-the actual judgements, as written by the BK judges.

Here's what they generally look for:

Does it APPEAR you tried to defraud someone? In looking at this, there are two considerations. One is the length of time before filing. You are outside the normal window, which is great.

THEN, the next question is INTENT. Did you pay back any or some of the amount? Your answer is YES. That is probably as far as anyone will take it, if they even examine it at all.

It is NOT a fraudulent charge unless you:

A) Knew you were insolvent at the time you took the loan. (No one would ever admit this if it were true anyway)

B) Never intended to pay them back.

It is NOT fraudulent if you intended to pay it back, but circumstances changed-you didn't get the raise you counted on, other debts skyrocketed, or you simply weren't capable of for any reason, including poor planning.

I have a 2k cash advance from January. I don't think it will be brought up, as the payment went from the card to my checking account. Then we wrote a check for 2k to cover part of our newly increased 12k per year hurricane insurance fee.

Ours is in the "window" of fraud, but it's clear what we used it for.

I'd be happy to dig up some of the actual rulings I am speaking of, if you like. I believe a couple were in southern California. Let me know.

DMC

DMC - I would very much like to see the rulings in southern cal.

The creditor may not object, but I want to be prepared if they do.