chapter 7

[djsd]

What is the name of your state? TX
Pro Se, I received a letter from one of my creditor's attorney, one week and five day's after my 341 which none of the creditor's were present. This letter states client is considering filing an adversary proceeding pursuant to 11 U.S.C. & 523 objecting to the discharge of the debt. Reason $3,051.00 of transactions were made withing 60 day's of bankruptcy filing, $1,051.00 in retail charges and $2,000.00 in cash advance. They say before they contact local counsel they are giving me the option of settling the account, either 1)reaffirmation of the sum of $3,051.00 or 2)one time cash settlement in the sum of $2,400.00. Also stated the letter say's they trust that we can resolve this matter without unnecessary expense. Last they state there are instances in which there my be a satisfactory explanation.

Yes their is an explanation, loss of income, unplaned vehicle expenses, unplaned plumbing repair, medical, and necessary monthly expenses, utility payment's, food, laundry supplies, gas, dental, property taxes. Bankruptcy is not something you ever plan to do I didnot want this, unfortunately I was hit with unplaned expenses that had to be repaired, at the last minute I made the decision to file for bankruptcy.

My question is I thought the creditors were not aloud to contact me, will I be able to get this $3,051.00 discharged, do I need to contact trustee, or do I need to answer this letter to creditor's attorney, please help?

[Ladynred]

This is not an ordinary collection contact, which IS forbidden. Since you are acting PRO SE, then ALL communication regarding your case HAS to go thru YOU. If all of these expenses they are saying were incurred within 60 days of your filing were NECESSARY and unavoidable, not just frivolous spending, then you have a good chance of the judge denying their motions to have that portion of your debt deemed non-dischargeable. In other words, go thru with the adversary proceeding, you'll have your chance in front of a JUDGE to explain the charges and cash advances. THEY have to prove that you were running up charges fraudulently because you KNEW you were going to file BK. Its NOT that easy for a creditor to prove you were up to no good.

Do NOT crumble to their sword rattling and attempts to get you to settle or reaffirm without your day in court. Let them file their Adversary Proceeding. If you can prove that you weren't on a wild spending spree, then they are likely to LOSE. Just make sure you start digging up receipts and all proof you have of what the charges were for and where they cash advance money went.

[djsd]

State of Texas,
Thank You Ladynred for your reply.
I'm 77 years old, this is all so frightening, I would be abit nervous being in court with a judge and all. I can prove I do have all receipt's on retail charges and cash advance. Would it be best to send information to creditor's attorney, or will they take advantage of my age and nonrepresentation of an attorney? Thank you for your help.

I forgot to mention during the time of the in question expenses, the credit card bank phoned me and questioned me on activity, usage on my card. I told them I was aware but I need the car part's for repair's, the gasoline all explained to bank and this was approved and ok'd by creditor. Thanks again for your help.

[Ladynred]

I can well understand being frightened, I would be too, tackling a bankruptcy pro se is never, ever easy. I don't know many people who wouldn't be nervous in front of a judge, but since you ARE pro se, you do get a little slack.

The best thing you can do is have all your ducks in a row if the adversary proceeding comes about. Have copies of all your receipts prepared, one set for the judge, one for the opposing attorney. The fact that you've got them is a huge plus, something far too many people do NOT do. IF they go thru with the AP, they will have to convince a judge that you were spending money with no intention of paying at all because you were going to file BK.

I would not send anything to the creditor's attorney, its not necessary. Since they have mentioned a reaffirmation or settlement, they are fishing, hoping to scare you into an agreement to pay when you may not have to at all. Just wait and see what they do. If they file the AP, go thru with it, tell your side, and let the judge decide.

[djsd]

To Ladynred,

I would like to say Thank You very much for all your help, I greatly appreciate the needed information and your time to reply. Thanks Again

[Ladynred]

You're welcome and I hope it all works out for you

[AttorneyOney]

Originally Posted by Ladynred

IF they go thru with the AP, they will have to convince a judge that you were spending money with no intention of paying at all because you were going to file BK.

Under the old law, cash advances of more than $1,225 on a single credit card and within 60 days before filing are PRESUMED to have been fraudulent. The presumption means that the burden of proof shifts to the debtor to DISPROVE the fraud. In other words, the creditor doesn't have to convince the judge of anything because they can simply rely on the presumption.

[djsd]

TX.
I was unaware of this law on using credit card within 60 days of filing. However I also never had plan's to file. The charges and cash advance were in no way fraudulent, as stated previously I do have all receipt's of these necessary expenses. I want no problem's, just honest and best way to handle this. Thank You