CH 7? 11 usc 523


D

Damon Pearcy

I have a question on my chapter 7 bankruptcy case. a lawyer for one of my
creditors(mbna - non secured line of credit) sent a letter to my lawer
stating that they are fileing a 11 u.s.c 523 objection to discharge of debt.
the filing date is 6/24/2004 the letter was dated 7/16/2004 i received it on
7/21/2004 from my lawyer in the mail about 4hrs after my meeting with
creditors. the debt they are objecting to was dated 1/20/2004 of 6550$. do i
have to reafferm the debt? the lawyer only asked about debt that occured in
the last 60 days. the debt was over the 60 day question. if the creditor
didn't show up for the meeting of creditors, what does that mean? and do i
need to reafferm the debt to avoid a fight in court over the debt? called my
lawyer after i got the letter but have not heard back yet. was trying this
opiton for a quick answer to my question. i live in NC
 
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T

Thoth

Damon Pearcy said:
I have a question on my chapter 7 bankruptcy case. a lawyer for one of my
creditors(mbna - non secured line of credit) sent a letter to my lawer
stating that they are fileing a 11 u.s.c 523 objection to discharge of debt.
the filing date is 6/24/2004 the letter was dated 7/16/2004 i received it on
7/21/2004 from my lawyer in the mail about 4hrs after my meeting with
creditors. the debt they are objecting to was dated 1/20/2004 of 6550$. do i
have to reafferm the debt? the lawyer only asked about debt that occured in
the last 60 days. the debt was over the 60 day question. if the creditor
didn't show up for the meeting of creditors, what does that mean? and do i
need to reafferm the debt to avoid a fight in court over the debt? called my
lawyer after i got the letter but have not heard back yet. was trying this
opiton for a quick answer to my question. i live in NC
A creditor has 60 days from the first scheduled meeting of creditors to file
a complaint to determin the dischargeability of a debt. It is not relevant
that the creditor did not attend the meeting of creditors because that
meeting is not an opportunity to conduct discovery on particular claims.
Once the complaint is filed reaffirmation is no longer possible, but you do
have the options to defend, settle, or do nothing.

You can defend by denying the allegations set forth in the complaint.
Assuming credit card debt, certain debts incurred within 60 days of the
filing are presumptivly nondischargeable, but debts incurred after that may
be proven to be nondischargeable if, generally speaking, the creditor can
show that the debtor made a misrepresentation that the debtor knew was false
and was made with the intention to deceive (or in some jurisdictions was
made recklessly), and the creditor actually and justifiably relied upon that
misrepresentation, and the creditor suffered damages that were proximately
caused by that misrepresentation.

You can settle. Which is to say that you can negotiate with the creditor
for some reduction in the principal owed and/or interest to be paid. The
discount available to you will depend upon the facts of your case and the
skills of your attorney (i.e., the probability the creditor can prove fraud
and/or the ability of your attorney to defend a fraud claim).

If you do nothing the court is likely to enter a default judgment against
you for the amount alleged in the complaint, and you will have to repay that
amount plus interest. Doing nothing may be an acceptable option if it is
highly probable that the creditor will prevail. But doing nothing doesn't
mean that the creditor is certain to win. By doing nothing the creditor
does not get to conduct discovery, and will have to prove up its case
without the benefit of your answers to interrogatories, the production of
your documents, or your testimony in deposition. Depending on the facts and
the judge involved, the default prove up may be easy or impossible.
 
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T

Thoth

Damon Pearcy said:
so if i do nothing will i have to go back to BK court?
Not for a trial or anything like that. However, once the creditor obtains a
default judgment you may be compelled to appear at a debtor's examination.
But even a debtor's exam may be avoidable if you can work out a payment
arrangement with the judgment creditor.
 

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