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Is this Show Cause frivolous?

Discussion in 'Lawyers, Legal Practice, Ethics & the Bar' started by Law911, Jan 28, 2020.

  1. Law911

    Law911 Law Topic Starter New Member

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    Jurisdiction:
    Virginia
    This Show Cause was filed for not making payments on a co-signed loan, which had not been in default and was discharged by Chapter 13.

    Under the Separation Agreement incorporated in the Divorce Decree, I was to pay a loan for which my ex-spouse was co-signer. This loan was not in default. Subsequently, I filed Chapter 13.

    The Bankruptcy Attorney (who also practices Family Law) sent notice to the ex-spouse, and the attorney, that both this debt and this personal obligation to the ex-spouse had been discharged. To wit, the Creditor sent correspondence to me and the ex-spouse acknowledging that the loan, as to me, had been discharged. Afterward, the ex-spouse's attorney filed a Show Cause for willfully not paying this discharged loan, which was not in default at the time of the Chapter 13.

    Does this appear to be frivolous litigation? (Model Rules for Professional Conduct, Rule 3.1: Meritorious Claims and Contentions)
     
  2. flyingron

    flyingron Well-Known Member

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    As you were told on the other site, as long as the lawyer has a reason to believe that there is a legal basis for pursuing it, it is not frivolous. To be frivolous, he has to be doing it with no legal basis or for a purpose other than obtaining the decision asked for.

    Your first issue is determining if you indeed are in violation of the order in a way not exempted by the bankruptcy statutes. As you were told, your obligation in the decree is DISTINCT from the forgiveness of the loan itself in bankruptcy. You should be directing these questions to your own attorney(s).

    .
     
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  3. Law911

    Law911 Law Topic Starter New Member

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    Thank-you for your succinct, pertinent answer.

    The other site, from the initial response, had derailed onto a fairness track. The subsequent responses were to the initial response, not to the question.

    Sometimes, a question to one's own attorney does not get past the paralegal.
     
  4. flyingron

    flyingron Well-Known Member

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    A paralegal is NOT empowered to give legal interpretations. You should demand to speak to the attorney at his convenience. Or you can write him a letter.
     
  5. Zigner

    Zigner Well-Known Member

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    Generally, the "answer" from the paralegal was sanctioned (approved) by the attorney.
     
  6. army judge

    army judge Super Moderator

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    Whether any litigation is frivolous is determined ONLY after "due process" has transpired.

    That said, using the ABA Model Rules for attorney conduct are meaningless insofar as the laws of the state of Virginia are concerned.

    In fact, should someone choose to litigate a matter based upon an alleged violation of ABA attorney conduct rules, I doubt that such an action would be a cause for which VA state laws could offer a remedy.

    I suggest you research VA STATE laws to determine if the state in which you reside (or where the alleged action took place) outlaws the conduct you cite.

    IMHO, filing a Chapter 13 BK seems perfectly lawful and reasonable.

    I base my opinion on the representation that you provided that a federal court judge DISMISSED (as in relieved YOU of any legal obligation to pay the debt).

    It appears that your BK also absolved your former spouse of the debt, too.

    You appear to have done nothing violative of any laws.

    I suggest you draft a letter to your attorney, send same by mail with the ability for you to track the delivery of same, and ask for a written response.

    I would do nothing to upset or anger the attorney who seems to have extricated you from a large financial burden with amazing legal acumen.

    It can sometimes be difficult to recognize a win and walk away with a wry, mysterious smile, basking in the warm glow of a delightful personal victory.
     
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  7. flyingron

    flyingron Well-Known Member

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    Actually, while the model itself isn't binding, Virginia has adopted most of the provisions of it, and Rule 3.1 is adopted without modification.

    That rule only covers how the state bar may sanction the attorney if he violtes it. What you would be looking at to cover your current litigation is 8.01-271.1 out of the Code of Virginia (Title 8.01 is civil procedure).

    But again, it's not clear that this is frivolous. § 8.01-271.1. Signing of pleadings, motions, and other papers; oral motions; sanctions
     
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  8. Law911

    Law911 Law Topic Starter New Member

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    Thank-you for your citations and sage advice.

    I cited Model Rule 3.1 because I think that a Bar Complaint would be appropriate. Especially, it seems to me, in Virginia, an attorney was sanctioned for filing frivolous litigation after suing on a Promissory Note a person who was no longer a holder.

    Pardon my question for its brevity.
     
  9. flyingron

    flyingron Well-Known Member

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    A bar complaint won't get you out of the need to show up and court and defend yourself in the action.

    You're misusing the legal terms. Your ex and you were never "holders" of the note. The person who you borrowed from is the holder. Further, it's not the legal responsibility for the debt you appear to be running afoul of (indeed that is dismissed by bankruptcy), but rather the obligations spelled out in your divorce order. A divorce order can tell you to do things even if there is no underlying debt. (For example, my wife had to give $40,000 to her husband upon eventual sale of the house that she was deeded over sole possession of). As you've been told, these oft can't be discharged in bankruptcy and such obligations aren't discharged solely because some related debt is. This obligation to your ex should have been listed in the bankruptcy.

    Again, even with the advice of two different internet forums, you don't seem to be able to grasp the essential facts. You need to be dealing with your attorney(s).
     
  10. P1776

    P1776 Member

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    Generally it means the Attorney has not be paid in full, or the client is calling all the time
     
  11. Zigner

    Zigner Well-Known Member

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    Huh? I'll tell you what...I much prefer dealing with the paralegal for basic questions, etc. They're cheaper.
     
  12. P1776

    P1776 Member

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    I understand what you mean, but they are giving responses through different lenses and experiences. If its a legal question that you need to act on then just pay the Attorney
     
  13. Tax Counsel

    Tax Counsel Well-Known Member

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    An action is only frivolous is there is clearly no way given the facts stated in the complaint that there would be a valid cause of action and the party filing it knew it (or should have known it). The best way I can describe them is that these are the cases the are so clearly lacking in any legal basis that any lawyer reading it would say "that's just silly."

    If there is a dispute over whether your obligation to your ex was discharged in the bankruptcy then that's not a frivolous action, even if the ex ultimately loses the case. It doesn't take much for a lawsuit to clear the low hurdle of not being frivolous, and so far I'm not seeing that the ex's claim here is clearly frivolous. You may file the bar complaint and a motion for sanctions for being frivolous if you want, but if you file the motion you had better be able to back it up that the case truly frivolous lest you draw the ire of the judge. I suggest to you that the better way to deal with this problem is to file a motion to dismiss for failure to state a claim or for summary judgment if you think the complaint lacks merit. That's by far the more common way to dispose of these kinds of cases.
     

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