Comments on: Credit Card Company Loses a Discharge Action http://www.thebklawyer.com/thebkblog/2006/05/15/credit-card-company-loses-a-discharge-action/ Personal Bankruptcy tips and tricks moderated by Atlanta lawyer Jonathan Ginsberg Tue, 17 Jan 2012 01:57:46 +0000 hourly 1 By: Jonathanhttp://www.thebklawyer.com/thebkblog/2006/05/15/credit-card-company-loses-a-discharge-action/#comment-977 Jonathan Tue, 16 May 2006 02:51:10 +0000 http://host.jonathanginsberg.com/~thebklaw/thebkblog/?p=31#comment-977 Steve, you are, of course, correct about the reason the debtor was successful. However, what is important here is that the debtor's bar needs to be willing, on occasion, to challenge objections filed by creditors. It would appear that the creditors' counsel here has never had one of her form complaints challenged. Howard took on the challenge and when he caught the creditor napping, he won. I suspect that this particular creditor's counsel will not make this same mistake again, but I think it is healthy for debtors to challenge assumptions. Sometimes a recent use of credit is not wrongful. And sometimes creditors will not be able to prove that a debtor's conduct should result in a non-dischargeability decision. Unfortunately most debtors do not have the funds to finance this type of litigation but without these types of challenges, the creditors and their representatives will use this type of litigation to squeeze money out of honest but unfortunate debtors. Steve, you are, of course, correct about the reason the debtor was successful. However, what is important here is that the debtor’s bar needs to be willing, on occasion, to challenge objections filed by creditors. It would appear that the creditors’ counsel here has never had one of her form complaints challenged. Howard took on the challenge and when he caught the creditor napping, he won.

I suspect that this particular creditor’s counsel will not make this same mistake again, but I think it is healthy for debtors to challenge assumptions. Sometimes a recent use of credit is not wrongful. And sometimes creditors will not be able to prove that a debtor’s conduct should result in a non-dischargeability decision.

Unfortunately most debtors do not have the funds to finance this type of litigation but without these types of challenges, the creditors and their representatives will use this type of litigation to squeeze money out of honest but unfortunate debtors.

]]> By: Stevehttp://www.thebklawyer.com/thebkblog/2006/05/15/credit-card-company-loses-a-discharge-action/#comment-976 Steve Tue, 16 May 2006 00:22:27 +0000 http://host.jonathanginsberg.com/~thebklaw/thebkblog/?p=31#comment-976 While the plaintiff need to present evidence to back up its case, here the debtor prevailed because the creditor did not respond to the motion for summary judgment, thus making it unopposed. Without disparaging debtor's counsel, the Judge does not need to make new law when one party fails to respond to discovery or oppose the motion. The news would have been if the debtor has lost the motion. While the plaintiff need to present evidence to back up its case, here the debtor prevailed because the creditor did not respond to the motion for summary judgment, thus making it unopposed. Without disparaging debtor’s counsel, the Judge does not need to make new law when one party fails to respond to discovery or oppose the motion. The news would have been if the debtor has lost the motion.

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