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Attorney 1
Attorney 1, Attorney
Category: Legal
Satisfied Customers: 1780
Experience:  Knowledgeable and Experienced Attorney.
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I am a creditor in the state of Oregon. A debtor of mine has

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I am a creditor in the state of Oregon. A debtor of mine has filed for bankruptcy. I filed an adversarial case against the debtor to stop the discharge of the debt she owes me. She has responded and requested the case be dismissed. What form or paperwork do I use to respond to her request?
Submitted: 2 years ago.
Category: Legal
Expert:  Attorney 1 replied 2 years ago.

Attorney 1 :

Hello, and welcome to JustAnswer! I am preparing your response. Please remain online for a few moments, so you can get your answer right away.

Attorney 1 :

Please let me know the exact title of the document that was filed by the debtor.

Customer:

It was just a regular legal form, no title. But the judge has told me I must repspond to the debtor's request for dismisal.

Attorney 1 :

What was the basis for the request"

Customer:

She filed for bankruptcy. I file my case to stop her from getting a discharge on the debt she owes me. I then served her with that action. She then mailed me this response. It answers the allegations I made in my adversarial case. In that response she requested that my debt be allowed to be in the bankruptcy. I.E. she wants to get my case against her dissmised.

Attorney 1 :

All in one document??

Customer:

It is four pages of large font typing.

Attorney 1 :

And that constituted her answer to your complaint and her request for dismissal?

Customer:

Yes. And I just got ordered by the judge at the pretrial hearing to respond in writing to this document by 5 December 2011. Or and I'm quotting her here,"If you dont respond, I might, no gurantees, but I might just dismiss this whole case." End quote.

Customer:

Pretrial is reset for 20 December 2011

Attorney 1 :

Would it be alright with you if I pulled the case to look at the documents? I would need you to give me the adversary proceeding case number XXXXX I can pull it from the court docket, right now. I would not be able to tell you how to respond without seeing what we are talking about.

Customer:

Her original case no for bankruptcy is 11-35324-tmb7 the document I got from her had that number on it then she scratched through it with pen and changed the number to read 11-03287-tmb7 Judge Brown is the judge on the case.

Attorney 1 :

Thanks. Please remain online while I run these.

Customer:

Ok, thank you for your help, I need it badly.

Attorney 1 :

So, it looks like a motion to dismiss was filed on 11/4/11. Is that what we

Attorney 1 :

we're talking about?

Customer:

Yes, but the documents I told you about is all I have. I have recieved nothing else. I told the judge that and then told her about the document I told you about, she said that is the motion to dismiss. I don't understand that, but Im not a lawyer.

Customer:

And I will toss in here, that if Mrs Hunt had a lawyer helping her, I hope she isnt paying him. Her documents say she is going in the whole every month just to live. LOL

Attorney 1 :

OK, just a minute while I read this. I'll be able to let you knonw whether there is an attorney doing the work or not.

Attorney 1 :

Yes. She does.

Customer:

Thank you.

Attorney 1 :

But not a very good one.

Attorney 1 :

I'm going to need to pull and print your complaint, too. Just a minute while I retrieve it.

Customer:

Ok.

Attorney 1 :

Printing.

Attorney 1 :

Better type size.

Attorney 1 :

Looks like you had an attorney, too.

Attorney 1 :

One who doesn't need glasses.

Customer:

I have had no attorney, I will swear on a stack of bibles to that. I have been doing this on my own. I just used what I could find on line. I dont have the big bucks for a lawyer. That is why I am here. I can afford to pay a small amount, unless ofcourse I can reclaim my money from her.

Customer:

LOL, yeah, I tried to do mine like the ones I had seen online.

Customer:

We are both Pro se. The judge was pretty hard on a couple of the attorneys in court, but she seemed to be a little less to the point with both of us. But I dont want to push my luck with Judge Brown either.

Attorney 1 :

You don't have an attorney,

Customer:

I have been to court before. I do property management so I am trying to draw on my knowlege from doing evictions and such. And no, I have no lawyer.

Attorney 1 :

You need one. So far the defendant is correct. You have failed to state a claim upon which relief may be granted. Hang on, still analyzing.

Customer:

I did put in that she used fraud to get the note. That said, she is a bartender and claiming minimul funds. Yet I have been using my limited resources to keep an eye on her. She goes out and drinks, spending money on that and other things. I have a recording of her on my voicemail from May of this year saying she doesn't pay rent. Yet her bankruptcy forms say she does pay rent. Rent to the guy that owns her house, her boss from work is the owner of that house. I have her lying on other various items as well.

Attorney 1 :

The motion almost addresses a phantom document. It's hard to imagine that this person was actually responding to your complaint. Looks like something that was used for someone else, and the defendant's name was slapped on it.

Customer:

I dont think the trustee did a very good job at examing her forms or interviewing her at the hearing.

Attorney 1 :

I missed that part. Are you sure you put it in there?

Customer:

The note she signed for the money was included with that paperwork. She does admit to obtaining the note from me for the purchase or the house

Attorney 1 :

That's not fraud.

Customer:

I did accuse her of fraud to get the note. She told me repeatedly that my note was one hundred percent safe and that I would never, never lose my money as it was secured by the real property.

Customer:

I do have a witness to her saying that on more than one occassioin.

Customer:

occassion.

Customer:

She used to be a realestate agent. sadly enough

Attorney 1 :

She was wrong. Lots of people enter into deals thinking they will work out, and they don't her representations were a prediction into the future. Help me see the fraud.

Attorney 1 :

Fraud requires an intentional false representation of fact.

Customer:

She guranteed me that I could never ever, her words lose my money in that house

Customer:

She was a realestate agent and knew that wasnt true

Customer:

Fraud

Customer:

And what about making faulse claims on her bankruptcy forms about her income?

Attorney 1 :

Fraud also required reasonable reliance on the misrepresentation. So, 1. Would you have made the deal without her statement that you would never ever lose money, and 2. Was it reasonable to rely on such puffery? You are a property manager and understand values. Help me see why it was reasonable for you to rely on this statement from the defendant. I'm envisioning a kid making a deal with a parent of the basis of "oh I promise it will be perfect," so help me see how this is different.

Attorney 1 :

By the way, I

Customer:

I relide on her expertise and her assurance that my secured interest in the house was just that.

Attorney 1 :

am not being critical. I am forcing the issues that you are going to need to have in your amended complaint, which we will talk about soon.

Attorney 1 :

And on what basis was she such a secure risk? If she was such a good candidate for a loan, why didn't she walk into a bank and get one?

Attorney 1 :

What made her prediction about the unpredictable future, so reliable to you? That's the botXXXXX XXXXXne. We need to show that your reliance on her statementn was justifiable, but the statement is just a bunch of puffery with no basis in fact or reality. Dig deep.

Customer:

She did have another mortgate which she failed to make payments on years down the road. My interest in the house was the downpayment, she then got a loan from a bank for the rest. The bank knew about me, and I abou them.

Attorney 1 :

I need to know why you feel you were justified in relying on her statement that you could never lose money on the deal.

Customer:

As I said before, as my realestate agent, as a professional that I trusted, and that fact that she told me that my money was in that house and I could never lose it in any way, aswaded my fears about the deal.

Attorney 1 :

Thank you. That will go in your amendment.

Attorney 1 :

Next, if she had not made that express represntation to you, would you have enered into the agreement, because you felt it could still be a good agrement for you?

Customer:

No. I asked her point blank with no hesitation how safe this was. I was worried I would not see my money again. She said, 100 percent safe. My money is in that house and I will never lose it under any


circumstance


 

Customer:

I would like to ask, what about her lying about her expenses and income to the bankrupcy trustee?

Attorney 1 :

Would you have entered into the deal if her response to you was not as strong.

Customer:

NO, never. I was too scared about my money.

Attorney 1 :

That is not your issue to deal with, but you could show up at the 341(a) meeting to ask questions that might be helpful to the admnistration of the estate. You would need to refrain from accusations. Only calm, rational questions are allowed.

Attorney 1 :

If she is found to be lying on her petition, and you have proof of that, the trustee may recommend that her case be dismissed without discharge.

Attorney 1 :

Again, another good answer.

Customer:

ok. thank you.

Attorney 1 :

I'm going to check your court rules for some procedural issues. It may take me a few minutes to find what I need, but I'm still with you and will check back with status if it's going to be longer.

Customer:

I had planned on asking her to produce her financial information such as how she paid her rent and introduce it as evidence to her lying on the petion, hence her web of lies continues. Her bankruptcy documents are full of lies. She will say anything she feels she needs to. She even accused me of being a law student to Judge Brown. I am not a law student and at the time I didnt even dignify her lie with a response.

Customer:

I greatly appreciate your help. Thank you. I am lost in the woods on this.

Attorney 1 :

Wow, that was actually really funny! Law student - how dare she - and if she ever accuses you of being an attorney, it would be the end of your good reputation - how dare she!

Attorney 1 :

Sorry, couldn't resist. ;-)

Attorney 1 :

Checking local procedure now.

Customer:

LOL. She just thought it would make me look like I had the upper hand. She was in court crying and acting up. It was quite pathetic really.

Attorney 1 :

Here's a helpful link for future reference:

Attorney 1 :

http://www.orb.uscourts.gov/Rules_Form/court_local_rules.cfm

Attorney 1 :

Sorry, keep hold of this one, instead:

Attorney 1 :

http://www.orb.uscourts.gov/Rules_Form/court_local_rules.cfm

Attorney 1 :

Seems to be the same.

Attorney 1 :

Here you go:

Attorney 1 :

http://www.orb.uscourts.gov/Rules_Form/file_attachment/200201011110140157.pdf

Attorney 1 :

You will want to print that and keep it handy for future reference.

Customer:

Thank you. It will help me to better get a grasp on this.

Customer:

Ok, so I need to ammend my complaint. And Im affraid I still dont know how to respond to her dismissal request.

Attorney 1 :

Technically, you are too late. See local rule, below:

Attorney 1 :

Timing Requirements.
(A) Opposition. Any opposition statement and supporting brief must be filed
and served no later than 14 days after the filing of a motion.

Attorney 1 :

Let me check something else for you.

Attorney 1 :

Stay with me. Still working on something.

Customer:

Ok

Attorney 1 :

You mentined that you have received only one document in this matter. That is the motion to dismiss?

Customer:

I got her orginal bankruptcy. then I got that response to my complaint and ofcourse the notice from the court about the hearing that is it.

Attorney 1 :

On what date were you served the answer to your complaint? If you are not sure, look on the last page. There should be a proof of service with a date on it.

Customer:

30th of September 2011

Customer:

Was the date on it and mailed on that date as well.

Attorney 1 :

Then you will not be able to amend, as a matter of right. You have only 21 days to amend as a matter of right after service of the answer. Your deadline to respond to the motion was 14 days after service of the motion, which has also passed. The ramifications of that wll be dismissal of your adversary complaint, without hearing and without further notice. If you respond to the motion before the judge enters a ruling, you may be able to slip it in if the defendnat doesn't know to object.

Customer:

Ok. I just assumed that since the judge had verbally given me until 5th of December I was still ok. I just didnt understand that her answering my compaint required a response from me.

Attorney 1 :

If you want to keep this viable, you will need to retain bankruptcy counsel - spefifically an attorney who represnets creditors in adversary proceedings, to see what magic he/she can work under the circumstances. This could be a bit costly, but without it, you're likely going to be out of luck. In deciding whether to retain an attorney, you should decide what the likelihood of ever collecting from this person will be.

Attorney 1 :

The judge gave you until the 5th of December for what, exactly?

Customer:

If I can get a judgement I will send it to collections. She has to work and i will get my money back after a long, long time.

Attorney 1 :

Her answer to the complaint did not and does not requre a response from you.

Customer:

the 5th of December to file my response to her request for dismissal. That is why I had orginaly askede how to responde. I couldnt find a form to use for it.

Attorney 1 :

Garnishing wages is better than collections.

Customer:

Good point.

Attorney 1 :

Geez, and I normally represent debtors in bk court. I'm switch hitting tonight.

Customer:

But I told the judge that I got no official letter asking for dismisal. She said that on the 4th page of that document was the request for dismissal

Customer:

lol

Attorney 1 :

So what was the 12/5 deadline for?

Customer:

To respond to the debtors request for dismissal

Customer:

The last page of the document I received says. 1 Defendant be allow to include the Plaintiff, in the discharged creditor list. That was the dismissal request.

Attorney 1 :

On what date were you told that?

Attorney 1 :

If you remember.

Customer:

During the hearing on 11-22-2011

Attorney 1 :

Thanks. I'll see if it's in the order.

Customer:

I will say this. No matter how this turns out, Im never loaning my hard earned money out to anyone again. It just isnt worth any amount of potential gain.

Attorney 1 :

The judge actually put 12/5 in the order, so you are stil o.k. You also have a hearing on 12/20, so you know.

Attorney 1 :

Good, and while you're at it, don't co-sign for anyone, either.

Customer:

Yes, that is the hearing for discovery and procedural rules and so on

Customer:

I would never co-sign to start with lol Im down right frightened of that.

Customer:

So what form do I use to respond to the request for dismissal?

Attorney 1 :

OK, so your case is still breathing, but you need respond and file an amended complaint with the response. You will not be able to do this yourself. That said, it's not that big of a deal, so if you choose to hire an attonrey for piecemeal litigation on this, rather than to actually represent you, you should be able to find someone - if you start looking first thing in the morning. Take the comments that we discussed about the fraud with you when you meet with the attorney, so he/she will not put you through that all over again.

Attorney 1 :

If you would like to request my assistance for future questions, please begin the new question with "FOR ATTORNEY 1".

Attorney 1 :

Best of luck!


 


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Customer:

Ok, I will try to find an attorney. But I dont have the money for it. I doubt they will like that. Its hard for me to come up with hundreds of dollars just for documents. But thank you for your help.

Attorney 1 :

You should be able to get this done for about $200 - $300, given the simplicity of the case at this point, if you hire just for the document and not for full representation.

Attorney 1, Attorney
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Experience: Knowledgeable and Experienced Attorney.
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