So I'm not the worlds greatest when it comes to bankruptcies. I dont read much on bankruptcies but I happened to find this. Short story, debtor commited ID Theft and opened an account in family members name, served jail time and was sued by the US AG. This account was not included in that suit for some reason. We had her served with garnishment papers and she responded with a chapter 7. Since she commited actual fraud on this account it would seem to me that it can not be discharged under her bankruptcy, am I wrong? http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000523----000-.html TITLE 11 > CHAPTER 5 > SUBCHAPTER II > § 523 (a) A discharge under section 727, 1141, 1228 (a), 1228 (b), or 1328 (b) of this title does not discharge an individual debtor from any debtâ?? § 523. Exceptions to discharge (2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained byâ?? (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtorâ??s or an insiderâ??s financial condition;
I would file a relief from stay with copies of her court & criminal papers proving account is fraudulent.Trustee probably will motion to dismiss entire proceeding once he/she is fully aware of the facts.
That's what I was thinking from what I read, but again, I dont deal with these and have a lot to learn about them.
Since this wasn't included in any ID Theft suits from the US AG, think a copy of the family members answer to his complaint will work, and a copy of the US AG case for the other accounts?
Oh sweet day it is! I had a brief chit chat with an attorney about this and indeed I'm/we/are correct, but I have to file the necessary documents/papers. I'm just glad she isn't going to walk away from this without paying.
Thats good Collectman. I am not collector friendly,but if anyone should pay for an Id theft account,it is the crook who opened it.Personally they should have been locked up for a good while too.My comment about collectors doesn't include you yet. I have found most of your posts to be informative and it looks like you stay in complianace so I have placed you in the 1% of them that do their jobs properly.
While I may be blunt with some of the postings, I do try to be as honest as I can. I have seen/heard/worked with collectors that have totally crossed the line and caused a violation, and it makes me cringe when I hear one that was done intentionally. Sure everyone in my line of work is going to make a mistake at some point in time, just as any other profession, so those types of errors dont bother me as much as a blatant one, as long as it's corrected immediately and more training is done. On the banko-this person was tried and convicted for various counts of ID Theft by the US AG, however, this one account was not included for whatever reason. She made payments to my office until, we found out her probation time was over, then quit paying. I pulled her banko papers from PACER, and she signed under penalty of perjury, I'm sure she cares about that, that she hasn't been sued or property seized, or placed a lien against, or any garnishment orders, 1 year prior to filing the banko. I won judgment 9-11-06 and garnishment was served at her POE on 4-26-07, she sought help from the attorney 4-30-07. Not sure what her and the attorney are trying to pull, but I'm not going down without one hell of a fight on this one.
I haven't retained one yet. Just spoke with a friend's attorney who represents creditors. It annoys me to have to actually hire one, but I think this may fall outside my comfort zone with the documents I will need to file and produce to prove our side. I haven't even been sent the banko papers from the attorney yet. I was pulling PACER reports for a couple other accounts and just happened to check the accounts I have judgments on. It was just filed 5-19.
*Irritated* I actually have to hire they attorney now. I thought I was going to be able to draft a motion for an adversary proceeding and motion to deny discharge, and muttle my way through that. However, I found on PACER today that the debtors attorney has filed a MOTION TO AVOID JUDICIAL LIEN, that we placed on her property when we obtained judgment. Pursuant to 11 USC 522 f 2. I read that, I so dont understand it. I dont really understand the whole document in itself. *pulls out hair*
From what I read on it,they are filing to remove your lien as it is causing damage or detrimental to their legal homestead exemption in the bankruptcy.Until the court is aware of your fraud claim,they will follow Us code and this motion is an open and shut case to remove the lien.The only one allowed to retain a lien in this case is a creditor holding mortgage security instrument on the exemption. I would advise you to run not walk to a attorney experienced in bankruptcy law.
Already have a call into the attorney I think I'm going to use. I have 20 days from the date of service, so I believe June 11 is the deadline. I pulled and printed the banko ''checklist'' they fill out. She said she hasn't been sued or a lien against her property in the 1 year preceeding the filing of the banko. Perjury charges maybe?
Perjury is a nice addition to Fraud. I would almost pay money to see what that judge is gonna do when he gets his hands on the documentation. ROFLMFAO!
Sigh...the lawyer called me back last night and gave me some bad news, well sorta. The case will be easy enough to file and prove, however, it will be expensive. Guesstimating about 3-8k to represent. I was a little suprised at that number. I asked him if the attorney's fees were recoverable in the matter, he stated since you have a secured lien against property then yes. I was also surprised at that, I wasn't aware filing a lien against a property turned it secured?
Your fees will be secured by the judgement that originally secured the lien.Lawyers can be expensive,but are useful at times.If you think they have assets worth the funds involved,then go for it.Judgements are fairly easy to get at times,but can be darn hard to enforce sometimes.I was a judgement creditor once when a individual breeched an agreement.It took about three years of sitting on it and then they paid me off when they wanted to buy a home.
I already have the lien against the house, bank accounts are being monitored, and wages were going to be garnished, but now are on stay for the banko. There are assets and plenty of equity in the home to refinance and pay off I assume all debts owed. But she is claiming it's not her house that she is only holding it for her mother. That's a lie, she bought it 9 years ago from, I believe, Secretary of HUD. I just want to fly down there ask her what the hell she is thinking, and her attorney, laugh, serve them with the lawsuit and walk out.
I can understand where you are coming from.Credit,finance,& collections can become downright emotional at times.Make you want to smack somebody. I am learning that if I treat anything that deals with the above as a simple business transaction with the associated good & bad risks,then I sleep better at night& blood pressure stays normal. Once you have been releived from stay,you can enforce everything.Here is another idea,have you called the attorney who prosecuted the person for the crimes and updated them on what is going on here.I would think that they might be interested in being informed of potential felonies from a previous case they worked.
I haven't called the US Attorney that prosecuted her originally. I was unaware of 1. what they would do, 2. if they would take the account from me, 3. if she is in jail how am I going to get my money? I have definately thought about it. But it's my money dangit! ;-)
Another collector brought this to my attention, which I never thought of, even if I go through with the attorney and we get this denied of discharge granted, can she just refile in a year or so on this again? Will I have to go thru the same steps? Will the deny of discharge letter work on a new bankruptcy case? Also, will the new bankruptcy, will she file on my judgment or the credit card?
