Is there a good defense to this?

[Davidca]

What is the name of your state? California

A credit card company has filed for an adversary proceeding regarding just under $4000.00 in cash advances I took 4 months before filing chapter 7. They are claiming fraud because I did not make any payments and due to my income level, I could not have expected to pay these cash advances off. I have to submit a written answer this week. I honestly took the cash advances just to pay for rent/food, etc because I was so broke. Is there a good defense to these claims?



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[Davidca]

Anyone? Anyone?

 

[Ladynred]

I answered your question in the OTHER duplicate thread you posted.

 

[Davidca]

Actually, while I appreciate it, that form you referenced was for a Chapter 13 case whereas this is a Chapter 7 case and there is no repayment and a different situation completely.

 

[Ladynred]

So.. modify the form to suit your needs ! All you need is the right format, that Motion is the right format. You're not going to find blank EXACT forms.

 

[Davidca]

I guess my point is that outside this form, I am trying to address and overcome their claim of fraud. This form is stating that the person is repaying under chapter 13 so the company has no grounds to have this charge excluded from the case. Whereas I am not repaying and my creditor wants the charges left out. I can use the form (thanks) but not the words. Its a different situation.

So is there a general or specific argument as to why a cash advance 4 months before filing chapter 7 should be allowable? The is the basic claim of fraud proof for the court or do they have to do something else to prove it? How can I stop them from getting away with this?

 

[jadedone24]

I am sorry I cant really answer your question, although I am going through something similar. I had an adversary filing and now I am going through a 2004 examination by the US Trustee. My plea is similar to your and I am predicting (perhaps it is me being negative) that it either gets dismissed or they make me roll chp 7 into a 13...either way it is not good news for me. I hope that yours turns out better!

 

[bigun]

David,

About all you can do is make the case that you used the card for reasonable and necessary expense. Have canceled checks for rent, groceries, utilities, etc. and hope for the best.

 

[Ladynred]

Exactly. THEY do have some burden of proof to make their case for the accusation of fraud. If you can show the Trustee the cash advances were for necessities and you didn't just blow it on a big screen TV, then the creditor will lose.