Debtor's examination

What is the name of your state? Nebraska

I received a court stating my husband and I need to appear Order to appear in court on August 29, 2003 for a debtor's examination for a judgment that was granted against me. I am planning on declaring this in my bankruptcy proceedings how do I go about handling this since I have to appear in court for this. Do I tell the court at that time that I am going to be filing bankruptcy or what?

[email]villahomes@aol.com[/email]

[Ladynred]

Unless you can file BEFORE 8/29, you're still going to have to appear for the debtor's exam. Your best bet would be to retain a BK lawyer NOW, even if you don't file right away, having representation for a bankruptcy lends credence to your statement in court that you intend to file. The lawyer may even be able to stop the debtor's exam.

[I AM ALWAYS LIABLE]

Originally posted by Ladynred
Unless you can file BEFORE 8/29, you're still going to have to appear for the debtor's exam. Your best bet would be to retain a BK lawyer NOW, even if you don't file right away, having representation for a bankruptcy lends credence to your statement in court that you intend to file. The lawyer may even be able to stop the debtor's exam.

My response:

Just a slight "correction".

"Retaining" a BK lawyer, and / or intending to file BK, isn't enough to "stay" the State court "Debtor Examination". You know what they say about "good intentions", don't you?

The State court judge has no discretion (ability) to stop the Examination unless there's an "official" BK filing, and that the creditor has received a "Notice of Stay". Since federal bankruptcy law supersedes state law, and automatically enjoins "commencement or continuation" of most debt enforcement proceedings, including "any act to create, perfect or enforce any lien" against the debtor's estate, it is probable that continuation of judgment enforcement proceedings are automatically stayed upon filing of a bankruptcy petition. Thus, unless the automatic stay has terminated by operation of law (e.g., bankruptcy case is closed), the judgment creditor must obtain relief from the automatic stay before proceeding. [11 USCA § 362]

So, if prior to August 29, 2003, a BK has not been filed, and the automatic "Notice of Stay" has not been served, then the State court examination goes forward.

IAAL

[Ladynred]

Right.. good intentions...

I didn't mean to imply that just retaining a BK lawyer would stop the exam.

Can a debtor request a continuance or postponement of this type of proceeding ?? If that's possible, I'd certainly find out and ask for it .. then you can get your Bk filed before the new court date.

You can file an 'emergency' BK petition and that'll put the automatic stay into effect. The only thing is that once you do that, you only have 10 days (I think) to get the rest of your Bk paperwork filed or risk dismissal.

[I AM ALWAYS LIABLE]

[quote]Originally posted by Ladynred
[b]Right.. good intentions...

I didn't mean to imply that just retaining a BK lawyer would stop the exam.

MY RESPONSE: That's okay. Hey, that was only the way I interpreted what you said.



Can a debtor request a continuance or postponement of this type of proceeding ?? If that's possible, I'd certainly find out and ask for it .. then you can get your Bk filed before the new court date.

MY RESPONSE: Sure, the debtor can "ask" for a continuance, but once the debtor declares their reason for the continuance, it would be highly unlikely that one would be granted. Again, the judge would have to believe "Hey, your Honor, I "intend" to file a BK."

Further, the judge, by granting a continuance, would be pulling the rug out from under the creditor on a "promise" or an "intention" to do a future act. The judge would be without discretion to do that to the creditor when the debtor, presumably, had plenty of time prior to the Debtor Examination to file for BK protection.

Also, the Creditor might be ready on that very day of Examination to empty a bank account or two with a Writ, prior to any filing of BK.

IAAL

[I AM ALWAYS LIABLE]

My further response:

Note to our writer - -

At the Debtor Examination, be prepared to take off your shoes and socks, empty your pockets inside-out, and to empty your wallet and purse, and to remove all jewelry, placing all "found" assets within those areas, onto the judge's bench for inspection and "taking".

IAAL

[Ladynred]

MY RESPONSE: Sure, the debtor can "ask" for a continuance, but once the debtor declares their reason for the continuance, it would be highly unlikely that one would be granted. Again, the judge would have to believe "Hey, your Honor, I "intend" to file a BK."

I agree, a judge wouldn't likely grant a continuance for that reason.. but say... the OP can't get the time off from work would be reasonably legit - or some other reason besides bankruptcy.

Of course, the OP could go file that emergency petition tomorrow.. or on the 28th.. and go to court with a BK case number in -hand.

[I AM ALWAYS LIABLE]

[quote]Originally posted by Ladynred
[b]I agree, a judge wouldn't likely grant a continuance for that reason.. but say... the OP can't get the time off from work would be reasonably legit - or some other reason besides bankruptcy.

My response:

Regardless of the circumstances necessitating a postponement of the hearing, a stipulated continuance should always be sought in the first instance. Some courts will not consider a unilateral request for continuance unless the applicant has previously attempted to obtain a stipulation.

Then, once a postponement is agreed upon, then our writer needs to "communicate" that fact IN WRITING to the judge PRIOR to the hearing date (usually 5 days prior).

If the postponement is NOT agreed, then the writer needs to request the same in writing PRIOR to the hearing date, and write in that declaration all efforts made to obtain an agreed postponement, and the reason(s) why the same failed, along with a reasonable reason for a unilateral postponement for the judge's review PRIOR to the hearing.

And still, none of this is guaranteed. The judge still has the option to deny any such postponement. So, be prepared to attend the hearing on the date and time appointed.

Our writer has some fast work to do.

IAAL

[Ladynred]

Thanks for the clarification, IAAL

Fast work is right...

Originally posted by I AM ALWAYS LIABLE
My further response:

Note to our writer - -

At the Debtor Examination, be prepared to take off your shoes and socks, empty your pockets inside-out, and to empty your wallet and purse, and to remove all jewelry, placing all "found" assets within those areas, onto the judge's bench for inspection and "taking".

IAAL

the trustee, or creditor can try to make you do this?

[Ladynred]

Well, no.. IAAL was being a tad facetious. However, they WILL dig very deeply into your financial affairs, so you need to be prepared with as much documentation about your assets and liabilities as you can. Put it all on paper, and list ALL of your normal expenses. There is plenty they cannot touch, those are your exemptions, but you also, at some point, need to claim those exemptions.