Adversary Hearing Questions

[Davidca]

What is the name of your state? California

I have an adversary hearing coming up aginst MBNA. I took a cash advance of about $4000 on my Mastercard 4 months before filing chapter 7. I did not make payments after that. MBNA claims that given my income level, I could not have expected to pay this cash advance back and so they are claiming fraud. My questions are:
1) Do they have to prove how specifically it is fraud (like what I spent the money on) rather than just claiming it is fraud because of the situation. Or is the fact that I took the cash advance 4 months before filing, had a low income and didnt make a payment good enough to prove it is fraud.
2) The rest of my debt has been discharged by the trustee so in this hearing, is it possible for the judge to reverse any of that?

 

[jadedone24]

I'm going through the same ordeal

David,
I had BankOne do the same to me. They claimed that I charged $1,200 some odd dollars and never made a payment after I did. That is true, I did not make a payment. I told my lawyer about it--they were claiming I took extended credit which I did not do. I do not know if this adversary is what triggered my order of 2004 exam or not but I had to do it shortly after the adversary was filed. It has gotten me in a real mess, but I won't go into that. The short of it is--although I don't think I should have to pay that, I probably will end up having to. My hope would be to get the rest discharged--be glad that you have! Keep us updated, I wish you luck!

 

[bigun]

Not fussing at either of you and I sure hope things work out for you but:

There's a good lesson here for folks that are starting to think about bk. Put those cards away and just bite the bullet and file. Don't take cash advances knowing you can't make any monthly payments. As bk filings surge, expect creditors to really play hardball and use every trick in the book to keep their clain from being discharged.

 

[bigun]

Not fussing at either of you and I sure hope things work out for you but:

There's a good lesson here for folks that are starting to think about bk. Put those cards away and just bite the bullet and file. Don't take cash advances knowing you can't make any monthly payments. As bk filings surge, expect creditors to really play hardball and use every trick in the book to keep their claim from being discharged.

 

[jadedone24]

your absolutely right bigun...

I agree, and that was something that I brought up in the 2004 exam. The trustee asked about eating out charges, do you do it anymore? NOOOOO we don't ha! It is true when you don't have you do without--I don't think I will ever have another cc--some may do fine with them and I started out that way, but really they are just to easy to get and too easy to use! I think you are absolutely right though

 

[Davidca]

OK, so getting off our soap boxes, I know they are objecting but what does the LAW say? Can someone PLEASE answer my original two questions?

 

[Ladynred]

1) Do they have to prove how specifically it is fraud (like what I spent the money on) rather than just claiming it is fraud because of the situation. Or is the fact that I took the cash advance 4 months before filing, had a low income and didnt make a payment good enough to prove it is fraud.

They are claiming fraud and you will be questioned about the cash advances - what did you take the money for ?; were you planning on filing bankruptcy at that time ?; can you prove what you spent the money on ?; why did you take it when you didn't have the income to pay it back ? - those are the kinds of things you'll be asked. Their arguments to claim fraud are fairly standard, you're going to have to show that you were NOT DELIBERATELY COMMITTING FRAUD by taking those cash advances so close to filing for bankruptcy.

2) The rest of my debt has been discharged by the trustee so in this hearing, is it possible for the judge to reverse any of that?

Unlikely, there were no objections, so why would he/she ?? Only the MBNA issue will be addressed.

 

[Davidca]

Thanks Lady in Red. Dont know what I would do without you.

 

[Davidca]

Out of curiosity, They are going to ask me all these types of questions...what if I take the 5th ammendment and dont say anything? Will the judge get annoyed and grant judgement for the credit card company or will the credit card company have to actually prove something on their own rather than speculate?

 

[Ladynred]

Taking the 5th would NOT be a good idea, it would only make you look really guilty. You need to answer their questions and produce whatever documentation they ask for. If you're not hiding anything and you were honest on your schedules, you really have little to worry about.