motion to file extension of time for complaint

[jadedone24]

What is the name of your state?What is the name of your state? Arkansas
I recently received a letter where the judge granted my creditors another month to file a complaint. I contacted my attorney and he told me that one had filed a complaint stating that 1,285.09 should not be discharged because of "luxury" goods and that I commited "fraud". However, he looked through my list of charges and said that Wal-Mart and restaurants were the main of the charges and asked me if I had called in to request more credit before I filed bk. I did not do what they are claiming and he thinks I can beat it in court. My question is, do these usually get cleared or should I just see if I can make payments to get this taken care of? And, if I do who do I need to contact? OR, should I go through my attorney and try to beat it and risk having to pay him and the creditor? I am just not sure what to do, I am just ready to get this over with! Please help!

 

[Ladynred]

If you have gone thru ALL your charges on the account in question and your lawyer thinks you can beat their objection, then go with the lawyer. The BS about 'luxury goods' is if you spend $1100 or more on things that are NOT necessities. Eating out isn't 'luxury goods'.. maybe not smart if you're claiming you can't pay bills, but I doubt it qualifies as a 'luxury' unless you were eating at Sardi's or Cirque Du Soleil ! Wal-Mart.. 'luxury goods' ?? Those 2 terms hardly go together !

Trust your lawyer. The creditor will have to make their case and prove their claim of 'luxury' purchases.

 

[jadedone24]

He (my lawyer) got a copy of the charges from 8-03-04 through 8-25-04. Is this period of time the only thing they can question? I wasn't sure since that is what he was asking for--my copies of credit card purchases for that time. I survived the 314, but I am sure this will be different if I have to go to court again I didn't know if it would be worth it, but he (my lawyer) does. Thanks LadynRed for the advice, I have an appointment with my lawyer Friday. Can you tell me how this will go, I mean what will happen from here once I file a response to the complaint?

 

[Ladynred]

Your lawyer will have to answer the creditors complaint with facts to support that the purchases were not "luxuries". There may be a hearing, or the judge could make a decision based on the arguments from both sides. I really think you should trust your lawyer, this is EXACTLY the kind of thing you hired him for.

When did you file ? They're complaining about charges made back in AUGUST ?

 

[jadedone24]

Yep that is the date he got copies of my credit card transactions for, so I am assuming that is the trouble. He went over each of the charges with me on the phone and he said he didn't think they had a leg to stand on. He told me will probably have to go back to court, I really would like it if I didn't. I would like to know if it will be the trustee or a judge? I filed back in November and had my 314 meeting December 15. I got the letter the judge granted until March 15 to my creditors to file a complaint. That confused me--my lawyer told me one had filed a complaint, although I have not received any form of notification of that. Anyways, I did make an appointment with him. He assured me this will not affect my other debt from being discharged, but I am assuming with the exteded time to file a complaint they could?! I emailed the trustee and asked him what the letters meant and told him my lawyer said a complaint had been filed, but that I wasn't sure what was going on. I didn't know if that was the right thing to do or not--I hope it was ok to do that. I am just ready to get it done and over with! Let me know if you have any other insight, I sure appreciate it!

 

[AttorneyOney]

Trust your attorney, who seems to be on top of things. You can do yourself great harm by making direct contact with creditors or the trustee (who represents your creditors' interests, not yours), and you could force an excellent attorney to withdraw from representing you.

As far as the deadline extension goes, I'm sure your attorney objected if he thought there was a basis to object and a likelihood of success. A debtor's nevousness at having the case last another month would not normally be grounds to deny a motion for an extension.

If you need an extra level of comfort, I suggest reading section 523(d) of the Bankruptcy Code. As debtor's counsel, I would positively welcome a bad faith dischargeability complaint asserting fraud.

 

[jadedone24]

Okay, thanks so much for the advice, I do feel more confident now! I am ready to hold my head up high and get this done I am not proud of having to file bankruptcy, I have had such excellent credit my whole life! Life's circumstances has a way of bringing you to your knees sometime! I will trust my lawyer, I just needed to hear it form someone other than him, you never know when someone is out for their own best interest, and I knew maybe some of you could let me know what I needed to do. Thanks a bunch, I genuinelly appreciate your advice!

 

[jadedone24]

I just returned from consutling with my attourney about a complaint filed about my bankruptcy. He settled my mind about others. I will, after filing an answer to the complaint, go to court in front of the bankruptcy judge. The lawyer representing the credit card company is seeking 1,200 some odd dollars and have hired an attorney to travel cross state. It seems odd to me that they are so bent on pursuing this when my lawyer says according to my charges there aren't any "luxury" charges. Why are they doing this? Is it to see if I will fight it or what? He said they suggested fraud. That I called in and asked for extended credit, which I did not. He told me that if evidence comes up that will prove we do not have a strong case he will let me know. I don't want to fight it if I am guilty of something, I would rather just try to pay it out, but I do not think I am wrong. Do you know what types of questions they might ask me or be interested in the day of the hearing? Any help would be great. Thanks!

 

[Ladynred]

Afraid I can't help you on what types of questions will be asked. They will try to make their case. If you are 100% certain you did NOT ask for extended credit, or even that you never called them at all, then you probably have nothing to worry about.

AttorneyOney gave you good advice, read Section 523 of the BK code.

523. Exceptions to discharge

(a) A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debt—

(C) for purposes of subparagraph (A) of this paragraph, consumer debts owed to a single creditor and aggregating more than $1,000 for “luxury goods or services” incurred by an individual debtor on or within 60 days before the order for relief under this title, or cash advances aggregating more than $1,000 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 60 days before the order for relief under this title, are presumed to be nondischargeable; “luxury goods or services” do not include goods or services reasonably acquired for the support or maintenance of the debtor or a dependent of the debtor; an extension of consumer credit under an open end credit plan is to be defined for purposes of this subparagraph as it is defined in the Consumer Credit Protection Act;

(d) If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and fees if special circumstances would make the award unjust.

(d) means that if this creditors objection is denied and the debt is discharged anyway, the CREDITOR will have to reimburse you for all costs and attorney's fees you incurred because of their claim.