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Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2447
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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I went through bankruptcy and I have been named in an adversary

Customer Question

I went through bankruptcy and I have been named in an adversary proceeding. I donot have an attorney. The judge said at a previous hearing that he was not inclined to postpone based on not having an attorny.

What are my options. Mediation? if so, how do I submit a request to the judge to have mediation?
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  Fran-mod replied 3 years ago.

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Expert:  Terry L. replied 3 years ago.
Hi and thank you for your question. In the future, you can request me to answer any further questions.

An adversary hearing is an objection filed by a creditor to determine dischargeability of a debt.

Mediation is not available. It's only a matter of if it is, or is not, non-dischargeable.

You can either defend yourself, or hire an attorney to help defend you (recommended).

If you do nothing, the debt will be declared non-dischargeable.
If you file your appearance, then the creditor must prove that the debt is non-dischargeable, using evidence, and citing to the code and available caselaw pertaining to the precise issue.

You have the chance to dispute the claims, and need to show that the creditor did not meet the elements needed to show that the debt is non-dischargeable.

If you lose the adversary, the creditor would then be able to collect on the debt, the same as if you hadn't filed bankruptcy. they would have to sue to garnish wages, freeze bank accounts, attach liens etc.

You can then negotiate repayment plan at that time. You can talk to the creditor now as well to see if they would entertain any settlements. If you save them time and money by agreeing to the non-dischargeability, they may offer you a discount since they will save cost and attorneys fees too.

Best of luck to you.
Customer: replied 3 years ago.
I was served with a compel to answer and production of documents as well. Do I have to make known to the court my exhibits or just to the attorney as requestd
Expert:  Terry L. replied 3 years ago.
the order to answer, is to file an answer with the court.
as for discovery, it would go to the other side, then will be presented to court as the time comes up during trial marked with exhibit numbers etc.
Customer: replied 3 years ago.

Maybe I'm not being clear. They compelled me to produce documents tt I was gong to use as exhibits. Am Ithen equired to file them with the court as my exhibits ordoes the other side do that

 

Expert:  Terry L. replied 3 years ago.
For the motion to compel, you need to turn the documents over to whom is asking you to do so. If the creditor brought the motion, you would turn them over to the creditor (thru their attorney).
You can also use the same documents for your own defense too. You never send originals, only use copies.


Edited by Terry L. on 12/7/2010 at 4:03 PM EST
Customer: replied 3 years ago.
Final Question: Is this a true statement?

To provide that a debtor committed "actual fraud," the objecting creditor must show the following: (1) a representation made by debtor to the objecting creditor; (2) debtor's knowledge of the falsity when the representation was made; (3) debtor's intent to deceive in making such representation; (4) creditor's justifiable reliance; and (5) creditor's damage as a result. A creditor must plead and prove each element of fraud in order to sustain a finding that a debt is nondischargeable, including intent on the part of the debtor to deceive at the time the debt was created.

Expert:  Terry L. replied 3 years ago.
That sounds like it is from a specific case. Please bear in mind that each state is different as to the precise definitions and elements depending on case law in the state and the district your case falls in. You need to consult with a local attorney to develop defense strategy. This forum prohibits us from providing specific legal advice on the merits of a case. I wish you the best of luck. Thanks for your question.

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