normal or extortion?

Extortion might be overstating the action but using the Oxford dictionary and not a law book, it fits.

In the creditors meeting when one of the lenders says that you either pay us this sum of money or we will proceed with fraud charges, is that extortion? The trustee agreed with the lender and the lenders offer to loan money with interest for the payment. It seems to me that this is a matter for the police. Is that correct? It is my understanding than no victim of an alleged criminal act can negotiate a cash settlement in exchange for not pressing charges.

The requirement that the loan agreement be signed within 2 days of the creditors meeting prevented the obtaining of legal counsel which would have clarified the language in the loan agreement. A clarification on this point was requested and the answer was ‘sign it or we will proceed with fraud charges’.

BTW and for what its worth, a fraud charge investigation would be a good thing as it would clear the air as to intentions and actions. It is to bad that having a person who is possibly not capable of understanding the loan agreement sign for a loan (with lots of insurance added!) is not illegal.

One Response to “normal or extortion?”

A licensed trustee said...

We weren’t going to publish this question (for various reasons), but in the end we decided to so that we can provide some generic advice for all bankrupts.

Most people voluntarily assign themselves into bankruptcy as a means of dealing with excessive debt. The assumption under the law is that the bankrupt is honest, but unfortunate. As such, you are expected/required to co-operate with your trustee.

That doesn’t mean that you have to do everything a trustee or creditor tells you. If you disagree with something, you have the right to ask for time to consult with a lawyer or you may request that the matter be put before the Court.

A word of warning – don’t waste the Court’s time. There has to be a reasonable basis for failing to act. Generally speaking, if you give your trustee a good reason, they will accomodate your concerns. If the your trustee doesn’t accept your reason then it is unlikely the Court will either…

I don’t know anything about the writers situation, but when fraud is raised in a creditors meeting it usually means that credit was used or obtained in the period immediately preceding the bankruptcy.

The test for fraud in this period is pretty simple: if you used credit after you spoke to a trustee or counselor then it is likely fraud. Similarly, if you made large/unusual purchases immediately before filing you may be ordered to repay those amounts (without a declaration that you committed fraud).

Back to the person who wrote the question: if you think you’ve been treated incorrectly you may contact the Office of the Superintendent of Bankruptcy and lodge a complaint or hire a lawyer and head for Court.

Just don’t waste the Court’s time – if you did something inappropriate before you filed then you have to “pay the piper”.