Judgement after Chapter 7

[dsmasters]

What is the name of your state? CA

Hello.

I filed a chapter 7 BK in late 2002 that was discharged in early 2003.

We forgot to add a personal debt from a friend’s mother for 4K.

This person contacted us (harassed a little too) early this year demanding the money.

We called our lawyer (we did not file ourselves) and he informed us that since it was a non-asset case that it did not matter that we included her. He gave us case information in regards to the 9th circuit on how it didn’t need to be listed and so on. He said that we should inform her of the BK in writing (which we did on our doorstep).

She proceeded to file a judgment against us where the only way that we found out that was the day after we lost (we were never served). The amount was $5200 since the judge added interest.

We filed a motion to vacate based on not being served and that the debt was discharged in our chapter 7 (we did this ourselves). When she showed up she brought a man we had never seen before who perjured himself saying that he had given us the summons.

The judge believed them and would not hear anything in regards to the debt being discharged stating “that would have to be determined by the BK court”. (he was an interim judge – a lawyer filling in for a judge).

Anyway, there we are. Has anyone been here and done that. Our lawyer suggested trying to work with her but if she is willing to perjure herself I don’t see that happening. We are thinking of filling an appeal and charging her with contempt of the Bankruptcy order.

Does anyone know if this will stick?



P.S. Where do I file the Motion on Contempt - with the Civil Court where the judgement is or in Bankruptcy Court?

[Ladynred]

If you re-open your bankruptcy and file a motion for contempt and the judge agrees with you, then it will most certaily stick !

You're in luck to be IN the 9th Circuit as that decision regarding debts not listed in a no-asset case being discharged DOES hold water. The court HAS decided.. as cited in that case law your lawyer gave you.

You can appeal this interim judge's decision, or you could just go after the contempt. If you win, she would be liable for ALL court costs, your attorney's fees PLUS damages.. make sure you tell her that should you decide to talk to her again.

[dsmasters]

Thanks for the quick response.

What would be the best course of action though?

My lawyer said that if I want to reopen my BK (through him) it would cost me $2500 at least because it is a lot of work.

If I do the appeal through the civil will the appeal judge be familiar with the BK laws and uphold them?

Should I try one first then the other if that doesn't work?

[Ladynred]

Considering the cost involved to re-open your case, yes, I'd try the appeal process first. With any luck you won't wind up with the same interim judge you had before.

Did you have that case law with you in court the first time ??

As for the defective service, did you get a copy of the judgment case file before you went to court ?? If not, do so. The case file should contain a proof of service affidavit that will tell you when, where, and to whom the summons was served.

[dsmasters]

Would that affidavit have to be signed by whoever surpassingly RECEIVED the summons?

I ask because they say they gave it to my wife and I.

I will not get the same judge as you have the option if you want him or a real judge (no offense to anyone )

[Angilix]

Are you saying you borrowed money from your friend's mother and now that you have all your debts discharged you don't want to pay it back? I don't suppose you can count that person as a friend anymore. I hate to go off tangent , but this reeks. That is probably why the judge ruled in her favor. I hope she gets her money back. The debt was discharged in early 2003. It's now 2005. I think she's waited long enough. Pay the woman.

Chapter 2 pg 15 section 1.b of the 11th edition of the NOLO form book reads:
Don't pay off a debt that could be discharged in bankruptcy. Many debts (such as credit card bills) can be completely discharged in bankruptcy. The only reason you should consider paying a dischargeable debt is to pay a debt for which a relative or friend is a cosigner, so that the friend or relative is not stuck paying the whole debt after your liability is discharged.

Technically your friend is a cosigner, as she guaranteed that you would pay her mother back.

[Ladynred]

Would that affidavit have to be signed by whoever surpassingly RECEIVED the summons?

Not necessarily, no. I'd have to look up CA rules for service of process to see what IS required.

Technically your friend is a cosigner

There's no 'technically' about it, if there was no formal loan agreement and no signatures, there is no 'co-signer' either.

IF a judge honors the decision of the higher court in HIS DISTRICT, this woman IS in contempt for attempting to collect on a DISCHARGED debt. It is a violation of a court order -the permanent injunction of the discharge. There is no bar in the BK code to keep you from VOLUNTARILY paying back ANY discharged debt, but the discharge DOES bar collection activity of ANY kind.

[Angilix]

I just think it's wrong to screw a friend over like that . An interest free loan based on friendship from tht's friend's mother. Two years after bankruptcy not even willing to work something out. (Angilix shakes head). That's what you call burning your bridges.

[Ladynred]

I don't necessarily disagree.. unless the OP WANTS to sever all relationships and burn the bridges. This is why loaning money to 'friends' is just not a good idea - not unless you get something in writing..and that wouldn't help in this situation.

[dsmasters]

I agree with those that say that I should pay her back if it were that cut in dry. And we did have something in writing that was even notarized.

But of course you do not have the whole story so here it is in brief (I only post this becuase I still need LEGAL advise and I don't want those who could help me not do so becuase they think that I am trying to screw someone).

Her son who we were helping ended up stealing my car and hocking several of my personal belongings because of his drug problem. Needless to say this ended our freindship and any contact I had with him (we did not have a direct releationship with her).

We made payments to her but were unable to continue due to unsteady income on my part.

We tried working with her but she got very irrate and showed up at my wife's mother's house (who had nothing to do with it - we don't even know how she knew where she lived) yelling, screaming, and threatening her and us.

This along with some other high pressure creditors is what pushed us to BK in the first place.

As far as I am considered she burned the bridge a long time ago.

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I really appriciate the fact that there is this forum and that legal advise can be obtained here for free. I am thankful for those that provide there services/knowledge even though they may not get anything in return.

What I don't appriciate are those who jump to conclusions and want to flame me for what I am trying to accomplish. I am trying to do the best thing for my family which is to deal with this finacial issue, learn from it, and teach my kids so they don't get into the same mess.

[dsmasters]

Originally Posted by Ladynred

Considering the cost involved to re-open your case, yes, I'd try the appeal process first.

Is it that difficult to reopen it myself without my lawyer? Do you have any resources that you can point me too?

Did you have that case law with you in court the first time ??

Yes but the judge would not even hear it. His issue was the summons.

As for the defective service, did you get a copy of the judgment case file before you went to court ?? If not, do so. The case file should contain a proof of service affidavit that will tell you when, where, and to whom the summons was served.

I did not get it but they stated in court the time, location, and who (my wife and I in our driveway @ 7pm). I have been trying to get some sort of evidence that shows that we were somewhere else but I haven't had luck.

A side note - I cannot believe how easy it was for them to file, not give us the summons, and the get awarded the judgement. That is totally in favor of whoever wants to file a judgement for whatever reason to get free money.

[Angilix]

flaming you. I suggest just stating the facts. I went with what you gave me, and what you gave me didn't make you out to be a very nice person.
Obviously I was wrong.

[dsmasters]

I understand what you are saying but the fact that it was even mentioned was to address the nature of the debt (being personal as opposed to a company), not the moral implications of it.

It's just by getting into a totally different "moral arena" didn't help anyone, and that is what I came here for.

[storybookjim]

Originally Posted by Angilix

flaming you. I suggest just stating the facts. I went with what you gave me, and what you gave me didn't make you out to be a very nice person.
Obviously I was wrong.

Way to go, Angelix. Thank you. Ya put your two cents in. You might misinterpret; that's easy to do. You admit your mistake and move on without hurling an insult.

[Ladynred]

You CAN re-open your case w/o a lawyer, yes. There is a sample of a motion to re-open a case and a motion for contempt here:

[url]http://lawyerassistant.com/freeforms/[/url]

The difficulty lies in making your case to re-open and the reason for asking that she be charged with contempt.