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Charge Off Debts, What Are they. What Not To Do In Bankruptcy

Issues Relating to Credit Card Discharge.

Not too often credit card issuers sometimes challenge the debtor if the credit card should be discharged. If they do contest the debt,  this would be during an adversary proceeding which they must file.  They normally will claim debt was incurred by fraud and therefore should be excluded from the discharge under bankruptcy code §523(a)(2).  (non-dischargeability action).

Most of the time a charge card debt might be non-dischargeable in bankruptcy under either of two common legal theories:

• The application for credit was not accurate and there was a  fraudulent action.  
• The card was used by the debtor without an intent to repay the obligation.  This is by far the most common ground.

This issue in the past only arose in Chapter 7 prior to the October 2005 bankruptcy code changes. However now, creditors can contest the discharge of debts in a  Chapter 13 as well based on a claim of fraud.  La Mesa Bankruptcy Attorney explains Charge-offs and what  NOT to do prior to or after seeing an Bankruptcy Attorney. Avoid bankruptcy credit card fraud La Mesa.

Red Flag for card issuers:

Each credit card or store card issuer has a different criteria when to bringing an adversary action to challenge if debt is non-dischargeable.

Here are some of the common items  that might bring a red flag to the card issuers.  However, this does not mean they are. 

  ● Increase in credit card usage shortly before filing       

·         Newly issued card

·         Many cash advances in months before filing Bankruptcy.

·         Large cash advances in the months before filing Bankruptcy.  

·         Use of card for recent travel or vacations before filing.

·         Getting cash advances at an ATM at casinos months before filing.

·         Making payments to one creditor and not the other and borrowing more on the card you are not making payments on.

·         Not making payments on one card and increase borrowing on another which you are current on.

·         Exceeding credit limit.

·         Maximum amount charged months before filing.

·         Increase in credit card usage shortly before filing

·         Using card when unemployed or without reasonable belief that the debt can be repaid.

·         You become injured or ill and there is no reasonable belief you will be able to pay the amount back.

·         Large balance at filing.

·         Charges made after consulting bankruptcy lawyer. (Don’t charge anything after coming to my office!)

As a general rule, the greater the period of time between the last usage and the date of filing, the lower the chances of the lender filing an action against you. Generally, the longer the length of time between any particular use of the credit card or loans before bankruptcy filing, the less likely the past usage will trigger a challenge to discharge ability.   In order for the card company to prevail, it must be based on some type of  fraudulent use of the card and may seek non-dischargeability for certain items of the charges, not necessarily the entire balance.  

Example:  You paid for travel due to a death in a family to travel across country.  You were planning to file bankruptcy or you have already contacted a bankruptcy attorney.  This debt probably would not be dischargeable.

The judge decides the debt was incurred by fraud, barring the discharge of that debt.  You would then be responsible for this debt.

OK what are some solutions to the following charges?

If you or your bankruptcy attorney is concerned about a challenge by a credit card issuer on one or more debts or cards, there might be some options available.  If there was an intent to defraud the card holder no attorney will try to defend your action since you probably would have to lie under oath in an effort to discharge the debt.  I don’t know of one bankruptcy attorney who would do this for you.  It is illegal.

But there are some options that might help:

• Wait to file bankruptcy so as to put more time and/or more payments on the account between the questionable usage and filing bankruptcy.  This way at least the debts you recently charged would be paid for. Thus you can show you did not intently try to defraud the creditor(s).
• Settle with any objecting creditor in advance of filing if at all possible, agree to reaffirm that debt post bankruptcy. If and when they file a non-dischargeability action, have your attorney try to work out an agreement regarding those charges.
• At a hearing, your attorney can contest the action if you actually didn’t try to defraud the creditor. If you win, you may recover your attorney's fees incurred to defend the action.

IMPORTANT!!! Any NEW charges to credit cards or store cards made after you have consulted with my office or any bankruptcy attorney are likely to be challenged by the creditor.  So I highly recommend that you stop using your charge cards and destroy them!!!  As soon as you decide to file bankruptcy for sure, you know you will not be paying back that debt, right? So don’t charge anymore.  

Once you have decided to file bankruptcy, no matter if it is a Chapter 7 or Chapter 13, you can hardly have an intention to repay the charge card.  By doing so you make it easier for the card lender to bring an action for fraud. Even if you didn’t intend commit the fraud, don’t do it!

Also, cash advances over $1075 obtained within 60 days of the bankruptcy or purchases of luxury goods within 60 days of bankruptcy are presumed by the courts to be non-dischargeable.  Again, if you have decided to get a fresh start the first thing you do is to stop using ALL charge cards, if at all possible at least 90 days before filing.

How will a judge decide if you committed  fraud?

During an adversary proceeding, the creditor may challenge the discharge of a debt in bankruptcy.  Most will not even consider it if the debt is an old debt.  However, assuming there are newer debts or the   creditor believes the debt was incurred by fraud, they may be challenged.  

In the credit card or store card context, that means that the creditor alleges you were issued the card based on using false information, OR, it is more common that they will claim that the use of the charge card by the debtor was fraudulent.

The creditor just stating that the debt was incurred by fraud does not mean it is.  The creditor must file in a timely manner an adversary proceeding in your bankruptcy case, present evidence (facts) that prove fraud took place at trial.

Factors suggesting fraud

Some times this is easy for the creditor to prove, but most of the time they have to use facts that would lead the judge to believe fraud was committed. Here are samples of some items the court may use.  Some judges may use a checklist of common factors that may suggest fraud. Most of the time there are seldom explicit evidence of dishonesty by the debtor so the court has to rely on their actions.  Charge Off Debts, What Are they. What Not To Do In Bankruptcy.

Those factors which the court weighs in making its decision are: 

1.    The period of time between the charges and the bankruptcy filing;   (again if you are planning to file bankruptcy stop all charges at least three months before filing).

2.    Whether or not an attorney had been consulted concerning the filing of bankruptcy before the charges were made; 

3.    The number of charges made;  (if it was just one maybe there wasn’t any fraud but if there are several, it might suggest fraud).

4.    The amount of the charges (a few dollars not likely, hundreds of dollars more likely).

5.    The financial condition of the debtor at the time the charges were made.  

6.    The charges made placed you above the credit limit of the account.  

7.    If the debtor made multiple charges on the same day. 

8.    If the debtor was employed at the time of the charge.

9.    The debtor's prospects of employment. 

10.                       If  there was a sudden change in the debtor's buying habits or the amount of items bought; and if the purchases made were luxury or for necessity.  If the items were for food, or business expenses that is one thing, however, if they were for  jewelry or an expensive gift then that would suggest fraud and may be at issue.

11.                       Cash advances up to 13 months prior to filing.

If you want to understand more I would suggest reading See In re Dougherty, 84 B.R. at 657.

My office will advise you during the pre-bankruptcy meeting what you should and should not do after we receive your completed questionnaire for review.  All the above statements are good standards.  YOU SHOULD NOT CHARGE anything after you seek legal help for your debt problems.

I believe that success can be measured by providing personal service.  You'll be treated with respect.  You are not just a bankruptcy number on some form but a real person so you deserve to be treated like one.

Let the bankruptcy laws

work for you!

FACTS ABOUT CHARGE OFFS

QUESTION: What is A Charge off ?

Answer:  Many companies will list the amount you owe as a charge-off. Many people will believe that since it is listed as a charge off they no-longer owe the debt.  This is far from the truth.

Just because a credit card or creditor listed this only means that for their accounting method for the debt is listed as a loss. This in no way reflects that they will not bring a legal action against you. 

Also it will be on your credit report for 7 years.

Many creditors will list a valid debt as a charge off after they have cancelled your right to use their charge card. Some companieswill wait until the debt is 180 days past due. Again this has nothing to do with you not owing the debt. 

Even though the creditor has listed it as a loss does not mean in any way they will not expect payment from you.  Many times this is a sign they they are about to file a legal action to collect the debt.

Most of the debts that are listed as a charge off can be discharged using a chapter 7 bankruptcy.  Under a chapter 13, the debt is paid under the plan.   

What ever you do, don't be mislead into the false sense of believing you are free and clear of the debt.   If you do pay the charge off amount it will still be listed on your credit report as a charge off but paid.  Still a black mark on your credit report.

Chapter 13 and Chapter 7

Bankruptcy

can get you a fresh start and

relieve the stress of

your financial problems.    

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Let's face it the reason you are not paying your creditors is because you just don't have the money.  Most people just do not intentionally charge up debt with the intent of going bankrupt.   Most Americans are hard working who always try to pay the debt they owe but some unfortunate event disrupts their finances such as the loss of job by one or both members of the family, costly medical bills, illness, divorce, and devaluations of real property. During these unprecedented times what you once were able to use and count on to support you and your family no longer exists. In other words, there is no money to rely upon.

You have probably done everything possible.  It is now time to stop the creditor's harassment and to stop them from calling at work or even your family members. 

Charge-offices and the do not do list of Bankruptcy. Get a Fresh Start!