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cfortunato
cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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What rights do creditors have in a Chapter 7 bankruptcy filing

Resolved Question:

What rights do creditors have in a Chapter 7 bankruptcy filing? I am an unsecured individual creditor trying to prevent a fradulent bankruptcy filing and the dischargement of the debt owed to me.
Submitted: 3 years ago.
Category: Bankruptcy Law
Expert:  cfortunato replied 3 years ago.

Hi JACustomer,

Are you listed as one of the creditors on the Bankruptcy petition?

Customer: replied 3 years ago.

I was listed as a creditor on November 17th. I never received any info about any deadlines, objections, etc. in the letter from the bankruptcy attorney. I found out that the creditor' meeting was November 5th. When I contacted the bankruptcy court I found out that the deadline for filing objections was the 24th of November. I was notified on Friday the 19th and had less than 3 days to file an objection due to everyone closing for the Thanksgiving holiday. I was trying to find a creditor's attorney while the bankruptcy attorney was enjoying his vacation. I even went to the attorney's office to try and get more information and was told that I had plenty of time to file an objection to dischargability. They not only denied me pertinent info, but also tried to deliberately mislead me. The bankruptcy attorney obviously that tried to get the bankruptcy resolved before I could do anything about it. I have filed for an adversarial summons in an attempt to stop what I think is a fraudulent bankruptcy filing. No one seems concerned about this except me. I am going to contact the bar about the attorney's dirty tactics and ask for an ethics investigation. I don't know what else I can do.

 

Expert:  cfortunato replied 3 years ago.

1) Are you saying that you were added to an amended Schedule F?

2) Was your debt fraudulently incurred, was the Bankruptcy filing fraudulent, or both?

Customer: replied 3 years ago.

1) Yes, I was added to an amended Schedule F on the 17th of November.

2) I gave the debtor a loan only because everything he told me was a lie. He misrepresented his credit history, his ability and/or willingness to pay and strung me along for many months with many excuses before I started legal action. I know I am a complete fool to be taken in by a con artist but he played on my sympathies and earned my trust. We treated him like family only to have him steal from us. I also believe that the filing is based on fraud because his new wife filed only because it would be an inconvenience to pay his debts. (She also was misled about his credit history!) She told me that they had the ability to pay, but she did not think it was fair that she would have to take on/pay down his debt. He has enough income from a pension and from working to pay his bills, he's just using the bankruptcy as a way to get out of paying.

Expert:  cfortunato replied 3 years ago.

When a creditor is added to the Bankruptcy petition, it is supposed to be done "in time to permit...timely filing of.." a motion to determine the dischargeability of a debt. If a creditor is not added in time to file a motion to determine the dischargeability of a debt, that debt is non-dischargeable. Bankruptcy Stat. 523(a)(3).

Additionally, a complaint based on the above (that you were not given sufficient notice), can be brought at any time. In re Staffer 306 F.3d 967 (9th Cir.2002).

Accordingly, if the court will not allow you to file a motion to determine the dischargeability of your debt because it was obtained fraudulently (a 523(a)(2) motion), you can still file a motion to determine the dischargeability of your debt based on section 523(a)(3) - that it is non-dischargeable because you were not added to the petition in time to give you the chance to file a non-dischargeability motion.

 

cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience: Bankruptcy professor.
cfortunato and other Bankruptcy Law Specialists are ready to help you
Customer: replied 3 years ago.
I filed a complaint/objection with the Middle Georgia Bankruptcy Court and paid for an Adversarial Summons/Hearing. My court date is January 26, 2011. Am I going to be in big trouble if I am pro se? I just want a chance to show the judge that this guy is a total deadbeat and con artist. Is there any way that I can be held in contempt just by asking for the adversarial hearing?
Expert:  cfortunato replied 3 years ago.

Thank you for accepting my answer!

You are not going to be in trouble because you filed pro se. If the judge gives you a hard time, you can explain that it does not make sense and/or you do not have the money to pay an attorney for a $6K debt.

And as it is your right to file an Adversary Proceeding, you cannot be held in contempt for doing so.

Customer: replied 3 years ago.
Thank you. People have tried to discourage me because they say it is a waste of time and energy plus I could be sued by the debtor for court costs. His lawyer is a sleazy guy and I don't want to be intimidated by him because of my legal ignorance. I just don't want to pour more money down a hole or get into trouble. I know the Debtor is smug and thinks he's getting away with stealing from us, but I want it to be as hard as possible for him to be relieved of his debts.

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