Newbie needs AMENDMENT help

[becca24]

Hi There!
Newbie here, and I have been searching the forum all over for simple advice on exactly how to file, meaning what form to use when filing Pro Se, for Amending original documents. I filed BK 7 09/15/2014 and is was discharged 12/29/2014.. YEAH!!!!

I then filed an Adversary Proceeding for Student Loans Pro Se and now realized I listed a debt collector and not the original Loan Provider. I have the correct information now but am at a loss for how to file an amendment. I see a lot of posts on amending and so it seems like common knowledge but ALAS this is one part I can't seem to figure out despite my PRETTY DARN GOOD researching skills.


Please point me in the right direction and THANKS SO MUCH in advance, this forum is a BLESSSING.

YOU GUYS ROCK

Til Then

[despritfreya]

You are not giving enough info. You filed an AP against the student loan lender. Who is the lender? Who did you serve with a copy of the Summons & Complaint? How much time has passed since you 1) filed the Complaint and 2) obtained the Summons from the court clerk?

Amending Schedule F to include the creditor IS NOT going to help you in the AP. You have to properly and timely serve the Summons and Complaint.

Des.

[justbroke]

I agree with Des. The procedural requirements around filing a complaint, which starts an Adversary Proceeding (AP), is what is important when... filing a complaint. There are just so many variables, including, but not limited to, whether you actually served the summons, upon who the complaint was filed, the service requirements based on the defendant (Federal government versus private "insured" FDIC bank, versus some other entity).

I agree that this is not an amendment issue, but purely just procedural (and practice) issues. I'm glad you found our forum, but you will find that there is very little information on filing a complaint to determine dischargeability of student loans. There is, however, discussion about the difficulties and you'll find very few success stories. It is a very precarious area of the bankruptcy code and there are not even many practicing bankruptcy attorneys that can or will handle them.

[becca24]

Adversary Proceeding Predicament

Hi there and thanks for getting back so quickly and with such great questions.

I filed the Complaint on 12/5/2014 to US Department of Education and to NCO Financial. I had such a hard time understanding if you send it to the originator or who was holding it at the time I filed. Anyways, I pick the wrong one it seems. The good news is, that a lawyer who represents ACCESS group called me personally and told me to amend the complaint, educate myself more and gave me permission to serve him at his law firm in Southern CA, as he is a ACCESS group lawyer. This I thought was good news. I don't know maybe its not, you tell me. This is why I was asking how to amend the.... 'complaint'..... is that what i should be asking instead of amend adversary proceeding????

He ALSO told me to word my complaint differently and so it was then that I found your forum and started researching the old timers who have gone before. I do understand it is a long shot, especially as pro se but I have nothing to lose SO>>>>>>> Here is my story:

I am a single mother of a 3 year old and I have a ABD in Clinical Psychology and owe 200,000 dollars. I owe USDE 150,000 but already put those loans into the income-based repayment plan and would be fine if that stays there. As for ACCESS group, I owe them 50,000 dollars and they have been on my tail for 2 1/2 years until I just recently filed.

I am on Welfare and food stamps and have sent in so many applications I don't know where to begin, but I do have the evidence to back up my unemployment stretch. I moved two times now for what I thought was better opportunities and I do finally have a job interview this Wednesday for a job that pays 12 dollars an hour. I recently went on medication from the stress, even though I know that's not enough for the medical requirement needed to prove my ability or rather inability to work in the future or not..... but my last job ended in November of 2012 and I have been unemployed since. I paid on my ACCESS loans when I was working and have the paperwork and taxes to show that.

I sent the summons on 12/22/2014 to both of the defendants and my Discovery Trial is set for 2/26/2015. Please let me know if I missed anything and if any other information is helpful. I appreciate all you DO!

thanks for your time

[justbroke]

I believe that you also needed to serve the U.S. Attorney (for your District) and the U.S. Attorney General (Washington). Unless you mean that by filing on the U.S. Department of Education, you served the summons on the clerk for the U.S. Attorney General and your District U.S. Attorney?

I personally cannot assist you or provide any help with framing your argument (complaint). I have initiated an AP (complaint) myself twice for dischargeability, but not for student loans. In both cases, my defendants either defaulted (failed to respond to the complaint after being "properly" served) or had no real defense. Both of my cases were settled in my favor.

The dischargeability for a student loan is much much different. It will be a full blown civil trial with discovery, evidence, witnesses and expert witnesses. I'm not trying to scare you as I'm sure you have already done your homework. I know of only one case that I read, Roth, that was Pro Se and it was California and very fact specific. I'm sure you already reviewed that case as I recall that the person won the case.

The Forum may not be able to help you in the areas, which are questions of law, since most of us are laymen and are not authorized to practice law. There are Pro Bono clinics in California. You may want to also see if you could get one of those awesome attorneys to take your case.

[becca24]

I believe that you also needed to serve the U.S. Attorney (for your District) and the U.S. Attorney General (Washington). Unless you mean that by filing on the U.S. Department of Education, you served the summons on the clerk for the U.S. Attorney General and your District U.S. Attorney?

I personally cannot assist you or provide any help with framing your argument (complaint). I have initiated an AP (complaint) myself twice for dischargeability, but not for student loans. In both cases, my defendants either defaulted (failed to respond to the complaint after being "properly" served) or had no real defense. Both of my cases were settled in my favor.

The dischargeability for a student loan is much much different. It will be a full blown civil trial with discovery, evidence, witnesses and expert witnesses. I'm not trying to scare you as I'm sure you have already done your homework. I know of only one case that I read, Roth, that was Pro Se and it was California and very fact specific. I'm sure you already reviewed that case as I recall that the person won the case.

The Forum may not be able to help you in the areas, which are questions of law, since most of us are laymen and are not authorized to practice law. There are Pro Bono clinics in California. You may want to also see if you could get one of those awesome attorneys to take your case.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>> >>>>>>>>>>>>>>>>>>>>>>>>>>

I do understand. I will investigate Pro Bono clinics to increase my sad to nil chances but is there any information on the forum about how to file the amendment to the Complaint?.

I feel that the sooner I file the amendment the better off everything else will go. I am primarily concerned about the ACCESS loan and really need to serve the kind lawyer who contacted me so as not to miss my opportunity for even a settlement which is what he was discussing. I did file with the US Attorney General in Washington but can anyone guide me through the process or form to amend the complaint.

Thanks again,

Brokenbecca

[justbroke]

An amended complaint is no different than the complaint itself. You would just caption it as "FIRST AMENDED COMPLAINT TO DETERMINE DISCHARGEABILITY OF..." This is just standard practice for papers. Of course, you would need to serve the amended complaint on the defendant(s) (US Attorney, US Attorney General, and co-defendants) and file a certificate of service of the damned complaint. Don't be surprised if you get some sort of attack on the amended complaint because you failed to specify a cause of action or some other "legal" basis (cause). Of course you'll be attacking under 11 USC 523 on the dischargeability.

If you are having procedural issues, you may try to contact your Case Manager and as a procedural question... such as "I have a procedural question. I am amending my complaint. Do I need to provide a proposed Order granting the amendment or do I only need to file and serve the amended complaint?"

(Just wondering, because our language terms are different... by "file with the US Attorney General in Washington" do you mean that you served the "alias summons" along with the complaint (and any other paper required by your District )on the US A.G or do you mean that when you filed the complaint, you served the complaint (alone) on the US A.G.? There's a difference in that service of process.)

Actually, now that I look at this since I never had to amend my complaint, there are certain time periods and other rules around amending a complaint. Specifically FRBP 7015 must be filed (which is just Federal Rules of Civil Procedure Rule 15). Whether the 21 days has elapsed or there's a scheduling conference docketed could require you to file a motion for leave to amend (in other words, get permission to amend). Otherwise, it's a straightforward as I listed if you are within that limited period.

[becca24]

Thank you so much for your response. Gosh did I say "damned complaint"? I know I am frustrated, but I apologize if I came off that way.

I had no idea it was so easy to amend. I am not aware of standard procedure since this is my first time filing. That was the question I was posing originally and I thank you dearly.

As for your second and third paragraph, I do not know who or what a CASE MANAGER is and was not aware I had one. I am also confused and curious what you mean "our language terms are different."? I am sincere here and only want to learn.

I want to be clear also in going further, I was advised by the forum to seek Pro Bono help so that is what I will do, but if you want to spend the time: Here is what I did:

I researched what forms needed to be filed for serving a government agency for my local bankruptcy court here in the Central Valley of CA. It indicated I needed to send the complaint and certificate of service to the US Attorney Office for the US Department of Education so that is what I did. I send the same forms addressed to NCO FINANCIAL, which is wrong and so therefore I am going to amend, but since the lawyer suggested I amend the original complaint, are you saying I missed something?

I do not know what an Alias Summons is.

All my best and if you choose to not respond I just want to again say thanks for helping me clarifying my process here and I will be seeding ProBono help.

[justbroke]

I don't think it is (or should be) different in your District, but filing a complaint has a certain choreography. Unless your District has changed to the "new" model (where the Case Managers no longer work on specific cases), your case has a specific person in the Clerk's office known as a Case Manager. The work is divided just to equalize the workload on the Clerk's office. I had mentioned the alias summons in case you needed attempt service again on the right parties.

I think you should really talk to someone in the Pro Bono clinic. You may, or may not, have (processs of) service issues. The reason I keep saying this is that are language is different. I don't know if you mailed the complaint to the US Attorney and District US Attorney at the same time you filed, or if you waited for the Clerk to issue the Summons and filed the complaint, along with the summons, on the parties. This is all outlined in FRBP 7004.

FRBP 7004(a)(4)

Upon the United States, by mailing a copy of the summons and complaint addressed to the civil process clerk at the office of the United States attorney for the district in which the action is brought and by mailing a copy of the summons and complaint to the Attorney General of the United States at Washington, District of Columbia, and in any action attacking the validity of an order of an officer or an agency of the United States not made a party, by also mailing a copy of the summons and complaint to that officer or agency.

This is such a difficult area to navigate that any "help" that I could provide is limited to pointing you in the right direction.

Remember, time is of the essence for amending a complaint (see FRBP 7015). You should re-read the entire 7000 series from the Federal Rules of Bankruptcy Procedure and understand the process. After that, make sure you start to understand the Federal Rules of Civil Procedure and Federal Rules of Evidence. Also, see the forum sticky (Almost) Everything You Wanted to Know about Evidence

I would first make sure that I followed the process correctly. It seems the opposing attorney already gave you some hints that your complaint may be flawed.