The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 6 of 6

21. Can my creditors dispute the discharge of my debts?

If your debt is not one that’s automatically discharged then there may be a dispute over whether the debt should survive your bankruptcy. For example, if the debt is one that you have to prove should be discharged, you may have to file a complaint to determine dischargeability. Or, if the creditor must prove that the debt should not be discharged, you might have to defend yourself in court against the creditor’s claims.

22. How can I apply to have my student loan or a disputed tax debt wiped out?

If you want to have a student loan or tax debt wiped out, then you will have to prove to the court that you satisfy all of the requirements for discharge. To accomplish  this, you must file a formal complaint with the bankruptcy court. Generally, you can file your complaint any time after you file for bankruptcy. These type of cases are called adversary cases.

Suppose, for example, that you want to have a student loan discharged. As discussed above, you will have to prove that it would be an undue hardship to repay the loan. You will file at least two forms: a complaint, stating the facts that make repayment an undue hardship, and a proof of service, showing that you served the complaint on the affected creditor and the trustee.

23. How can my creditors object to my bankruptcy?

To object formally to the discharge of a debt, the creditor must file a document called a Complaint to Determine Dischargeability of a Debt. These type of cases are also called adversary cases. The creditor must give you and the trustee a copy of the complaint. To defend against the objection, you must file a written response within a specified time limit and be prepared to argue your case in court. It can be very difficult for a creditor to prove that a debt was fraudulent and it can’t be discharged. The vast majority of adversary cases are settled.

If the creditor’s debt is one of the types that will be discharged unless the creditor objects, the creditor has the burden of proving that the debt fits within the specified category. For instance, if the creditor claims that the debt arose from a “willful and malicious injury” you caused, the creditor will have to prove that your actions were willful and malicious. Moreover, if the creditor is arguing that a particular debt arose from your fraudulent acts, then the creditor will have to prove that all the required elements of fraud were present.

It is important to emphasize that  if you plead guilty to a criminal charge involving fraud, a document from the court showing your conviction may be all that’s necessary to convince the judge to rule the debt non-dischargeable.

The fact that the creditor has the burden of proof doesn’t mean that you should do nothing and blow off an adversary case. You should be prepared with proof of your own to show that the creditor’s allegations in the complaint are not true.

24. What are the most common ground for a creditor to object to the discharge of a debt on my bankruptcy?

The vast amount of adversary cases are filed by credit card companies.  There are few specific rules about what constitutes credit card fraud in bankruptcy. The bankruptcy courts are review following factors to determine fraud:

• Timing. A short time between incurring the charges and filing for bankruptcy may suggest a fraudulent intent.

• Manipulation of the system. Incurring more debt after consulting an attorney may lead a judge to conclude that you ran up your debts in anticipation of your bankruptcy filing.

• Amount. As mentioned earlier, recent charges over $550 for luxuries will be presumed to be fraudulent.

• Crafty use of the card. Multiple charges under $50 (to avoid preponderance of the charge by the credit card issuer) when you’ve reached your credit limit will start to look a lot like fraud.

• Deliberate misuse. Changes after the card issuer has ordered you to return the card or sent several “past due” notices don’t look good.

• Last-minute sprees. Changes in your pattern of use of the card (for instance, much travel after a sedentary life), charges for luxuries, and multiple charges on the same day could lead to problems.

• Bad-faith use. Charges made when you were clearly insolvent and wouldn’t be able to make the required minimum payment (for instance, you had lost your job and had no other income or savings) are a no-no. Banks claim that insolvency is evidenced by
any of the following,

• A notation in the customer’s file that the customer has met with an attorney’ (perhaps because the customer told the creditor he or she was considering bankruptcy and had talked to an attorney about it).

• A rapid increase in spending, followed by 90 days without activity.

• The date noted on any attorney’s fee statement, if the customer consults a lawyer for help with a bankruptcy.

It is important to emphasize that the mere fact that a credit card company challenges your discharge of a credit card debt doesn’t mean the creditor will win in court. In most of these cases, these cases are settled for 20% to 30% of the amount of the disputed credit card debt. It is very time consuming to litigate an adversary case. Moreover, if the credit card company wins the adversary case, they still have to file yet another lawsuit in the civil courts to collect their money. Therefore, in the vast majority of the adversary cases that I have handled, I have been able to settle with the credit card company for 10% to 30% of the disputed debt.

To read the balance of this article or to find more articles about Bankruptcy in New Jersey can be found at New-Jersey-Lawyers.com To find a NJ Bankruptcy Lawyer and New Jersey Law Firms that practice Bankruptcy

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The following article was written by Theodore Sliwinski, Esq. and can be found on New-Jersey-Lawyers.com part 5 of 6

18. What other type of debts are not dischargeable in bankruptcy if the creditor successfully objects?

Four types of debts may survive a chapter 7 case if, and only if,

• the creditor files a formal objection-called a Complaint to Determine Dischargeability—during the bankruptcy proceedings, and

• the creditor proves that the debt fits into one of the categories discussed below.

Creditors might not bother to object. Even though bankruptcy rules provide the creditors the right to object to the discharge of certain debts, many creditors-and their attorneys don’t fully understand this right. Moreover, many creditors might sensibly decide to write off the debt rather than contesting it. It can be expensive to file a “dischargeability action” The filing fee to file an adversary case is $250. Moreover, your creditor will also have to pay lawyer fees. If the debt is not significant, then many creditors will not believe that it is worth the effort to contest the dischargeability of their debt.

a. Debts Arising From Fraud. In order for a creditor to prove that one of your debts should survive bankruptcy because you incurred it through fraud, the debt must fit one of the categories below.

b. Debts from intentionally fraudulent behavior. If a creditor can propve that a debt arose because of your dishonest act, and that the debt wouldn’t have arisen had you been honest, then the court probably will not permit you discharge the debt. Here are some common examples:

• You wrote a check for something and stopped payment on it, even though you will kept the item.

• You wrote a check against insufficient funds but assured the merchant that the check was good.

• You rented or borrowed an expensive item and claimed it was yours, in order to use it as collateral to get a loan.

• You got a loan by informing the lender you’d pay it back, when you had no intention of doing so.

For this type of debt to be non-dischargeable, your deceit and lies must be intentional, and the creditor must have relied on your deceit and lies in extending credit. It is important to emphasize that these are facts that the creditor has to prove before the debt will be ruled non-dischargeable by the court.

c. Debts from a false written statement about your financial condition. If a creditor proves that you incurred a debt by making a false written statement, then the debt isn’t dischargeable.

Here are the rules:

• The false statement must be written-for instance, made in a credit application, rental application, or resume.

• The false statement must have been “material” that is, it was a potentially significant factor in the creditor’s decision to extend you credit. The two most common materially false statements are omitting debts and overstating income.

• The false statement must relate to your financial condition or the financial condition of an “insider”- a person close to you or a business entity with which you’re associated.

• The creditor must have relied on the false statement, and the reliance must have been reasonable.

• You must have intended to deceive the creditor. This is extremely hard for the creditor to prove based simply on your behavior. The creditor would have to show outrageous behavior on your part.

d. Recent debts for luxuries. If you run up more that $550 in debt to anyone creditor for luxury goods or services within the 90 days before you file for bankruptcy, the law presumes that your intent was fraudulent regarding those charges; all the charges will survive your bankruptcy unless you prove that your intent wasn’t fraudulent. The term “luxury goods and services” does not include things that are reasonably necessary for the support and maintenance of you and your dependents .

e. Recent cash advances. If you get cash advances from anyone creditor totaling more than $825 under an open-ended consumer credit plan within the 70 days before you file for bankruptcy, the debt is non-dischargeable. “Open-ended” means there’s no date
when the debt must be repaid, but rather, as with most credit cards, you may take forever to repay the debt as long as you pay a minimum amount each month.

f. Debts Arising From Debtor’s Willful and Malicious Acts. If the act that caused the debt was willful and malicious (that is, you intended to inflict a specific injury to person or property), then the debt isn’t dischargeable if the creditor successfully objects. However, for reasons probably related to ignorance of their rights, creditors don’t often object in this situation.

Generally, any crimes that involve intentional injury to people or damage to property are considered willful and malicious acts. Some examples are assaults, rape, intentionally setting fire to a house (arson), or vandalism. Your liability for personal injury or property damage the victim sustained in these types of cases will  almost always be ruled non-dischargeable. Other acts that would typically be considered to be willful and malicious include:

• kidnapping

• deliberately causing extreme anxiety, fear, or
shock

• libel or slander, and

• illegal acts by a landlord to evict a tenant, such as
removing a door or changing the locks.

g. Debts From Embezzlement, Larceny, or Breach of Fiduciary Duty

A debt incurred as a result of embezzlement, larceny, or breach of fiduciary duty is not dischargeable if the creditor successfully objects to its discharge. “Embezzlement” means taking property entrusted to you for another and using it for yourself. “Larceny” is another word for theft, “Breach of fiduciary duty” is the failure to live up to a duty of trust you owe someone, based on a relationship where you’re required to manage property or money for another, or where your relationship is a close and confidential one. Common fiduciary relationships include those between:

• business partners
• attorney and client
• estate executor and beneficiary
• in-home care giver and recipient of services
• guardian and ward, and
• husband and wife.

19. What happens to any debts or creditors that I don’t list on my bankruptcy?

The most important part of the bankruptcy process is to make sure that your paperwork is complete. Your bankruptcy lawyer is not a mind reader, he does not have a crystal ball and he does not know who your creditors are. If you don’t list your debts on your bankruptcy petition, then there is a good chance that this debt won’t be wiped out. The bankruptcy law requires you to list all of your creditors on your bankruptcy papers and provide their most current addresses. This information  gives the court some assurance that everyone who needs to know about your bankruptcy will receive notice. As long as you do your part, the debt will be discharged . Even if the official notice fails to reach the creditor for some reason beyond your control, the debt will still be wiped out

20. What will happen if an creditor pops up after bankruptcy?

If a creditor comes out of the woodwork after your bankruptcy case is closed, then you can always file a motion to reopen your case. If your application to reopen is granted, then you can file an application to amend the bankruptcy schedules, and add any omitted debts. Unfortunately, it can be expensive to reopen up a case. The filing fees alone to file a motion to reopen a case are $250. Moreover, your lawyer will also have to file a motion. A typical motion to reopen takes at least 5 to 15 hours of attorney time. Therefore, the costs to prepare and litigate a motion to reopen can be as expensive if not more than the costs of the original case. However, if the omitted debt is significant, then it pays to reopen up the case.

To read the balance of this article or to find more articles about Bankruptcy in New Jersey can be found at New-Jersey-Lawyers.com To find a NJ Bankruptcy Lawyer and New Jersey Law Firms that practice Bankruptcy

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