Bankruptcy filing... owe a payday lender 3000, took the money from my account . can i get it back with Chapt 7
Bakersfield, CA |
I was supposed to make installment payments but could not now Im filing for chapter 7 and called them to tell them with my attorneys number now they just took it out causing me an overdraft of 3000 with fees.
A lot depends on the circumstances of the creditor taking the money from your account. Did they obtain a judgment against you for that amount and are now simply enforcing the judgment? Or did your loan agreement give them the right to withdraw the funds in a non-payment situation? The circumstances could give you an idea of how the creditor might proceed regarding any opposition to your attempt to recover the money. However, regardless, you should discuss this matter with your bankruptcy attorney. More than likely your attorney will show the funds on your Schedule B, exempt them on your Schedule C, and show them as having been taken by the creditor within the past 90 days before filing on your Statement of Financial Affairs #3 or #4 (depending on the circumstances of your particular case). Then the Trustee may attempt to recover the funds for you, or if the Trustee concludes your Meeting of Creditors and abandons his or her interest in those funds, then you can request them back by sending the creditor a copy of your BK filing notice along with the above-mentioned Schedules B, C & SOFA. If necessary, your attorney may need to file a motion with the Court for an order for the return of the funds, assuming the underlying debt that the funds relate to is otherwise dischargeable.
It's possible that some of the money is taken back as a preference to pay your other creditors. A bankruptcy can help you start all over, including resetting the bank fee (since you probably won't have to pay it). Talk to a local attorney.
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The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here. Please visit my web site: www.avanesianlaw.com for more information about my services.
If you file your BK within 90 days of when they took the money, that payment (and anything else you paid them in that 90 days) constitutes a "preference" payment. Your BK Trustee would have the right to retrieve that preference in order to redistribute it to all your creditors; but there's a good chance that he won't bother and abandon it. At that point, you (or, preferably, your attorney) can pursue what the trustee abandoned. Based on our experience, the money is generally returned without having to file the threatened actions.
Telling a creditor that you are going to file bankruptcy isn't the same thing as telling a creditor you actually have filed bankruptcy. You have no protection under the bankruptcy laws until you have a bankruptcy case number. It sounds like all you did was encourage the creditor to take action as soon as it could. Hope this perspective helps!