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Hello , unfortunately the creditor has now brought an adversarial proceeding.
Response 1: That is quite unfortunate indeed.
The complaint in essence raises the same arguments it made in its motion for the court to reconsider the re-opening of the case.
In my answer could I raise the issue that because the creditor reiterates her previous argument that the complaint is frivolous, wastes the courts time and resources.
Response 2: Regrettably no. Even if the argument is the same, the Plaintiff must restate them in its core case. Otherwise, the Plaintiff would not have any case. In the law, pleadings are quite repetitive.
Also could I counter claim for attorney fees and that the court sanction the creditor for harassment.
Thanks for your help
Response 3: Yes, you can. Also, more importantly, you need to make sure that you respond to each Paragraph of the complaint. You can deny, admit, or state that you do not have enough information to either admit or deny, or you can admit in part or deny in part. Generally, everything would be "Deny" except for your address. Also, recall my previous answer:
"...even if the debt was incurred within the 90-day of the bankruptcy filing, which is the presumptive period for obtaining money through false pretenses, this charge could easily be defeated/rebutted by showing that the Debtor made payments on the debt. Thus, Debtor did not obtain money by false pretenses with no intention to pay the debt because the Debtor made payments on the debts."
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Sample Answer to Adversary Complaint
There is a pre-trial conference in january. Will this be like a civil trial with discovery and motions. Can the creditor request my current financial status like my assets? The bankrutcy was discharged in 2009. This creditor obtained a judgement after the discharge date for fees and part of the fees occurred pre-petition. I am requesting that court reduce the judgment to reflect the fees that occured pre-judgement.
There is a pre-trial conference in january. Will this be like a civil trial with discovery and motions. Response 1: Yes. However, the pre-trial conference is just a status conference—a tool the Court uses to see whether the parties have finished with discovery, whether settlement is possible, set discovery deadlines if discovery has not been completed, resolve issues with discovery requests and responses, etc. In short, the pre-trial conference is used by the Court to determine the readiness of the parties to go to trial. See Federal Rules of Bankruptcy Procedure Part VII. Can the creditor request my current financial status like my assets? Response 2: Yes, but not at the pre-trial conference. However, the request should be objected to as immaterial and irrelevant and just a fishing expedition on the part of the Plaintiff. Your current financial status has nothing to do with your debt with the Plaintiff.
The bankrutcy was discharged in 2009. This creditor obtained a judgement after the discharge date for fees and part of the fees occurred pre-petition. I am requesting that court reduce the judgment to reflect the fees that occured pre-judgement. Response 3: The Plaintiff was not supposed to obtain Judgment against you in the first place since it never filed Motion for Relief from the Automatic Stay to proceed with the lawsuit if I recall correctly and therefore had no right to continue with the lawsuit during your bankruptcy case or after a Discharge Order was issued in your case. You can and should bring this issue of violation of the Automatic Stay up in your Counterclaim.
Thank you very much. As always you have been very helpful
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