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I am creditor in a Chapter 7 Case Personal Bankruptcy

Discussion in 'Bankruptcy Law' started by Billy_Mitchell, Nov 16, 2010.

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  1. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    I am a creditor in a Chapter 7 BK. I have a judgement against a debtor wich is a result of him committing embezzlement of funds and Fraud.

    I was wondering what I should do to keep the dept from being discharged?

    How do I get the order enforced, the order is worth over $800k with penalties?

    Thank You
     
  2. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    More info,

    I have filed an adversary motion to stop the discharge and served the summons on the attorney of record.

    Now debt's second attorney has filed a motion to dismiss based on claims that the debtor was not served before the 14 day deadline. The debtor is using a PO BOx that has refused service and the residence adress on the BK paperwork does not essist.

    I have filed an Answer to their motion to dismiss stating that the debtor is unservable?

    The debtor's attorney is also stating that I need to serve them before fiing paper work with the clerk of court?

    Any advise would help. Thanks
     
  3. army judge

    army judge Super Moderator

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    This could get very tricky. If you have an almost million dollar judgment, you'd be smart to hire an attorney. If you don't, your debtor's attorneys are gonna outsmart you. You could lose the judgement entirely. Don't be pound smart and penny foolish, hire yourself a GOOD attorney tomorrow.
     
  4. despritfreya

    despritfreya Active Member

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    1. You needed to hire an attny. Filing a 523(a)(2)(A) or (a)(4) or (a)(6) complaint and prosecuting it to a successful conclusion is not something you want to do on your own.

    2. Since you opted to represent yourself you are deemed to have the knowledge an attorney would have. You were required to serve the Summons and Complaint within 14 days of the issuance of the Summons. Service had to be upon the debtor and the debtor's attny, not just the attny. Your service is defective and the Motion to Dismiss is well taken - but, see 4 below as you may still be able to salvage your adversary.

    3. Service in bankruptcy is through regular mail utilizing the address listed by the bk court for the Debtor. You could have sent the Summons and Complaint to the PO Box assuming that was the official address on file with the bk court.

    4. You have 120 days from the date of filing the Complaint to properly serve it. If you are still within the 120 days you need to have the Clerk issue an "alias summons". You must properly serve the "alias summons" and the Complaint within 14 days (it was 10 days but I do believe that the time period has been increased to 14). If you are outside the 120 day time frame you are just out of luck.

    5. If you are still within the 120 days HIRE AN ATTORNEY.

    Des.
     
  5. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    Des,

    I filed the complaint Sep 27th, I have served the attorney of record but the residencial adress and mailing adress "PO Box" are unserable. THey refused deleivery on the Answer I filed to the motion to dismiss.

    Should I try to fight the motion to dismiss or should I just file an alias summons and try to serve him again? We have a hearing the 29th of November.

    I am a school teacher and unable finacially to hire an attorney. It has been hard find one that will even help a creditor.

    Thanks again for the info.
     
  6. despritfreya

    despritfreya Active Member

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    What do you mean, "unservable"? Did the mail come back as "undeliverable" or "delivery refused"? If so, I will assume you kept proof that the address on file with the court for the debtor is "no good".

    Again, what do you mean? If you have proof that you are mailing documents to the correct address and the debtor is "refusing" delivery I think you have a strong argument and the judge will not take too kindly to the action of the debtor.

    You should do both. Once the Alias Summons is issued (should take 24 hours after requesting) send a copy of it and the Complaint to both the Debtor and the Debtor's attorney. Send it regular mail AND Certified Mail - keeping the USPS receipts. Once you have "served" the Summons and Complaint file a Certificate of Service in the adversary proceeding. This document "certifies" what you have done to complete proper service. Try to do all of this before the Hearing, including the filing of the Certificate of Service. Bring all documents with you to the Hearing.

    Note: While Certified Mail is not required, sending it both regular and Certified lends credibility to your concerns over the Debtor not accepting mail. The bottom line is: document, document, document.

    Des.
     
  7. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    Des,

    Yes I sent the answer to the their motion "to dismiss" registered mail to the deptors POBOX and his two attorney's.

    The Debtor refused servise by the post office and I have the documents filed. I have contacted his attorney several times trying to get a valid adress for his client he keeps say I have everything I need.

    I am contacting the BK courts clerk tomorrow to try and get an Alias Summons. THey are in San Diego and I am in Nevada.

    I will mail it to both debtor's attorneys and his POBOX again.

    Hopefully the judge will see he is playing games the same games that resulted in the judgement against him.
    I have also noticed that he has giver false information on his BK paperwork that he testified is true. Any advise what I should do?


    Thanks again

    Billy
     
  8. despritfreya

    despritfreya Active Member

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    I will assume that you filed a 523 complaint and did not include a reference to 727 (727 is used for a denial of a complete discharge due to some sort of fraud against the court such as failure to disclose assets, keep sufficient records etc.) The reality is you, as a creditor holding a judgment apparently based upon fraud, should only care about your own judgment being non-dischargeable. If the complaint deadline has passed you cannot file a 727 anyway. However, if you have verifiable information that the debtor has failed to list assets contact the Trustee. Just remember, Trustee's are wary of "creditors" who claim the debtor has done some wrong. There is a not so fine line between a valid complaint to a trustee and one driven by vindictiveness.

    Des
     
  9. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    Des,

    Thank You again for your time and help with this matter.

    I am not sure what the numbers = the name of the forms:

    I have filed a

    1. Proof of Claim
    2. Complaint to avoid and recover. with exhibits

    Is there anything missing or I need?

    Also I am contacting the Clerk to get an Alias Summon, should I send it out to his attorney and PO bOx again or wait until the hearing the 29th? It is good for 14 days.

    Thanks a world

    Billy
    Teammtrsprts at Aol
     
  10. despritfreya

    despritfreya Active Member

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    1. A Proof of Claim only allows a creditor to participate in any distribution made by a Trustee. If there is no $$ to distribute the Proof of Claim is irrelevant.

    2. 11 USC Section 523 is the Code provision that excepts certain debts from Discharge. The Clerk of the Court has taken your "Complaint to Avoid and Recover" as a "Compliant to Determine Dischargeability Under 11 USC 523" (I doubt the Clerk has marked it as a 727 Compaint as well). If you filed the Complaint on or before the "deadline to file Complaints", it was timely. It just has not been served correctly.

    Since you are doing this pro se you really need to look up 11 USC 523(a)(2)(A), 523(a)(4) and 523(a)(6). I will presume that your theory of the debt not being dischargeable is under one or more of those three provisions.

    11 USC Section 727 is the provision that, if proven, will deny a debtor a discharge of all debts. If you have not passed the Complaint deadline you could amend the pending Complaint to include a 727 matter in addition to the 523 but, again, you need to read the Code provision to see if you have sufficient cause to file such a Complaint. If you have passed the Complaint deadline you cannot amend.

    I would serve the Alias Summons and Complaint (regular and Certified to both the debtor [using the address on file with the Court] and the Debtor's attny) before the Hearing and then file a Certificate of Service. That way the Judge knows you have taken steps to correct the apparent deficiency in service.

    Des.
     
  11. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    Des,

    I am not sure what the dealine is for the 727? How can I find this out? He filed his BK on 7/06/10

    Also The dept I am trying to stop from being discharged was a result of him embezzleing monies that resulted in the Bank foreclosing on my home. He violation a deed of trust. He went further and committed fraud several times by disoving the corperation after the first Arbitration court order wich he participated. Then later committed fraud by telling the courts that he was just an employee of the company. I then proved that he had violated Nevada business law and was the LLC, He used his personal bank accounts to pay Loan payments on the property. He then went so far to say he was not servered properly, but later admitted he was served by the San Diego serriff's department.

    Thank You again, I am really thankful for the advise.

    Billy
     
    Last edited: Nov 18, 2010
  12. despritfreya

    despritfreya Active Member

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    The deadline was the same as the time in which you had to file the 523 Complaint. It should have been within 60 days after the 341 First Meeting of Creditors. To find the actual date look on the 1st notice you received from the Court. It told you when the 341 Meeting was and it also, about 1/2 way down the page, gave you the deadlines.

    As to the specifics of your case, I cannot comment as it appears it is quite involved. If you have a judgment that clearly states the debtor defrauded you then you may have a case. You really need to meet with a local attorney who handles creditor issues in the context of bk.

    Des.
     
  13. Billy_Mitchell

    Billy_Mitchell Law Topic Starter New Member

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    Des,

    I spoke with the Judge's clerk regarding the Alias Summons. She reviewed the case and said that is looks like the judge will be making sanctions against the attorney. She said it is clear the attorney is playing games and should have never filed the motion in the first place. I am also getting the summons at no cost and will be sending out to his attorney.

    Thank you very much for all your assistance. I will keep you updated in how it goes.

    Thanks again,

    Billy Mitchell
     
  14. despritfreya

    despritfreya Active Member

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    Yes, please do and best of luck.

    Des.
     
  15. steveblisslaw

    steveblisslaw New Member

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    Is there any update on what happened here. I am pretty interested to find out if the 800,000 or anything was ever collected.
     

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