Small Claims court an option for Fraud if person declared bankrputcy

[NetBook]

Hello.

Do I have the option of litigation in a small claims court against an individual who defrauded me ?

I have tried for over 9 months to get my money and she just filed for bankruptcy protection and I received a letter( with my name misspelled) saying that I am not allowed to try try to collect money from her.

However, I ready online that fraud is not protected under bankruptcy. Since this is a fraud case, am I allowed to file against her in small claims court or am I at the mercy of her local bankruptcy court?

This is not a general commercial debt but massive fraud.

Please advice

Thanks.

 

[Antigone*]

Duplicate post

 

[latigo]

What you received from the bankruptcy clerk was a notice of the bankruptcy court’s stay order (Section 362 of the Bankruptcy Code), which becomes automatically effective immediately upon the filing of the debtor’s petition.

What the order does is to temporarily freeze all activity by the petitioner’s creditors.

So regarding you question about bringing a small claims action –

If you were to do so at this juncture, that is, while the stay order is in place, you’d be in serious contempt of the federal bankruptcy court - not recommended! Doubly not recommended!
___________________

Next, as a general principle what you say is correct in that “fraud (is) not protected in bankruptcy”.

But is not so simple that you could avoid the bankruptcy stay order by filing an independent lawsuit against your debtor simply alleging that your claim is the result of the defendant’s fraudulent conduct.

It is much more complicated. It would require you to file in the debtor’s bankruptcy case what is known as an adversary proceeding and thus challenge the dischargeability of the debt as being the result of fraud.

A hearing would be held in which you’d be required to prove that the debt arose under circumstances that fall with a specific section of the Bankruptcy Code declaring it non-dischargeable.

For your purposes that would be Section 523(a) (2) of the Code which essentially states that the debtor in bankruptcy cannot be discharged of a debt for “money, property, services, obtained by false pretenses, a false representation, or actual fraud”.

So in actuality you have the same rights to take your debtor to court and prove that you were defrauded out of the $800, as you would have had the debtor not filed in bankruptcy.

The only difference is that your case must now be heard before the bankruptcy judge.

 

[Antigone*]

What you received from the bankruptcy clerk was a notice of the bankruptcy court’s stay order (Section 362 of the Bankruptcy Code), which becomes automatically effective immediately upon the filing of the debtor’s petition.

What the order does is to temporarily freeze all activity by the petitioner’s creditors.

So regarding you question about bringing a small claims action –

If you were to do so at this juncture, that is, while the stay order is in place, you’d be in serious contempt of the federal bankruptcy court - not recommended! Doubly not recommended!
___________________

Next, as a general principle what you say is correct in that “fraud (is) not protected in bankruptcy”.

But is not so simple that you could avoid the bankruptcy stay order by filing an independent lawsuit against your debtor simply alleging that your claim is the result of the defendant’s fraudulent conduct.

It is much more complicated. It would require you to file in the debtor’s bankruptcy case what is known as an adversary proceeding and thus challenge the dischargeability of the debt as being the result of fraud.

A hearing would be held in which you’d be required to prove that the debt arose under circumstances that fall with a specific section of the Bankruptcy Code declaring it non-dischargeable.

For your purposes that would be Section 523(a) (2) of the Code which essentially states that the debtor in bankruptcy cannot be discharged of a debt for “money, property, services, obtained by false pretenses, a false representation, or actual fraud”.

So in actuality you have the same rights to take your debtor to court and prove that you were defrauded out of the $800, as you would have had the debtor not filed in bankruptcy.

The only difference is that your case must now be heard before the bankruptcy judge.

Gee, latigo why not just encourage this guy to keep on starting thread after thread. I think we're at 4 or 5 so far ~ all basically the same.

 

[NetBook]

What you received from the bankruptcy clerk was a notice of the bankruptcy court’s stay order (Section 362 of the Bankruptcy Code), which becomes automatically effective immediately upon the filing of the debtor’s petition.

What the order does is to temporarily freeze all activity by the petitioner’s creditors.

So regarding you question about bringing a small claims action –

If you were to do so at this juncture, that is, while the stay order is in place, you’d be in serious contempt of the federal bankruptcy court - not recommended! Doubly not recommended!
___________________

Next, as a general principle what you say is correct in that “fraud (is) not protected in bankruptcy”.

But is not so simple that you could avoid the bankruptcy stay order by filing an independent lawsuit against your debtor simply alleging that your claim is the result of the defendant’s fraudulent conduct.

It is much more complicated. It would require you to file in the debtor’s bankruptcy case what is known as an adversary proceeding and thus challenge the dischargeability of the debt as being the result of fraud.

A hearing would be held in which you’d be required to prove that the debt arose under circumstances that fall with a specific section of the Bankruptcy Code declaring it non-dischargeable.

For your purposes that would be Section 523(a) (2) of the Code which essentially states that the debtor in bankruptcy cannot be discharged of a debt for “money, property, services, obtained by false pretenses, a false representation, or actual fraud”.

So in actuality you have the same rights to take your debtor to court and prove that you were defrauded out of the $800, as you would have had the debtor not filed in bankruptcy.

The only difference is that your case must now be heard before the bankruptcy judge.

This person kept insisting that I sent them a letter staying how much they owe me in order to file the bankruptcy.

I knew that she was trying to declare bankruptcy and told her that she knew she owned me $800.

1. The letter I got had both my first name and last name spelled completely wrong and also I never signed any acknowledgment that I received the letter. Could this be a legal loophole that would allow me to file in small claims court since the letter technically had the wrong name on it and no acknowledgment of receipt?

2. Can she technically even add me to her bankruptcy case if she does not have any documentation saying that I am a creditor ( no bills, no letters, nothing) ? Perhaps the might be another technicality?

3. We are both in different states. She is half way around the country. Since I am the victim in this fraud case, is it possible to file for a change in location to my state vs her state? Alternatively, is it possible to participate in Federal bankruptcy cases over the phone instead of in person?

4. Can a bankruptcy judge award me money in the case of fraud. Do they have that power or are they limited to only allowing or discharging a bankruptcy claim ?

5. Would contacting the local police department or FBI and asking to press charges and ask for restitution from this individual be violating the bankruptcy court ? ( Can this be considered as an alternative way to recover the money from this fraud)

Thanks for the response.

 

[latigo]

This person kept insisting that I sent them a letter staying how much they owe me in order to file the bankruptcy.

I knew that she was trying to declare bankruptcy and told her that she knew she owned me $800.

1. The letter I got had both my first name and last name spelled completely wrong and also I never signed any acknowledgment that I received the letter. Could this be a legal loophole that would allow me to file in small claims court since the letter technically had the wrong name on it and no acknowledgment of receipt?

2. Can she technically even add me to her bankruptcy case if she does not have any documentation saying that I am a creditor ( no bills, no letters, nothing) ? Perhaps the might be another technicality?

3. We are both in different states. She is half way around the country. Since I am the victim in this fraud case, is it possible to file for a change in location to my state vs her state? Alternatively, is it possible to participate in Federal bankruptcy cases over the phone instead of in person?

4. Can a bankruptcy judge award me money in the case of fraud. Do they have that power or are they limited to only allowing or discharging a bankruptcy claim ?

5. Would contacting the local police department or FBI and asking to press charges and ask for restitution from this individual be violating the bankruptcy court ? ( Can this be considered as an alternative way to recover the money from this fraud)

1. No

2. Yes

3. Double no

4. All the bankruptcy court can do is determine whether or not the claim is exempt from discharge under Section 523. Should the adversary proceeding result in your favor, you could then seek judgment from a state court having personal jurisdiction over the debtor. Which could be local if the circumstances giving rise to your cause of action falls within your state's "Long Arm Statute".

5. You can involve any law enforcement agency that will listen to you (none I venture to say) without violating the 362 stay order. However, no such agency can assist with restitution. They are not bill collectors!
_________________________

And this is the last from my end. So don’t ask. I've already ruffled Plato's feathers who is likely brewing up an Hellenic pox to cast upon me.

 

[NetBook]

1. No

2. Yes

3. Double no

4. All the bankruptcy court can do is determine whether or not the claim is exempt from discharge under Section 523. Should the adversary proceeding result in your favor, you could then seek judgment from a state court having personal jurisdiction over the debtor. Which could be local if the circumstances giving rise to your cause of action falls within your state's "Long Arm Statute".

5. You can involve any law enforcement agency that will listen to you (none I venture to say) without violating the 362 stay order. However, no such agency can assist with restitution. They are not bill collectors!
_________________________

And this is the last from my end. So don’t ask. I've already ruffled Plato's feathers who is likely brewing up an Hellenic pox to cast upon me.

Law enforcement you say will probably not want to help?

It seems that the law does not give the victim much help here. This person tried to scam like 15 other people also for thousands of dollars.


Is there anyway to get my $800 back without spending over $800 to do it?

I know the police,FBI can't order restitution but can a judge during a criminal case?

Please let me know what you would do if you got scammed by someone on the internet to get your money back?

Thanks

 

[cosine]

You should have filed the appropriate police report as soon as the crime took place. You can still file it, anyway, but then, you may have to explain why the delay happened. it may be that you intended to just give the her and opportunity to right a wrong. You can say at this point it is clear she has no intention to do so, and you have proceeded to file the appropriate criminal charge.

There is no detective work for the police to do, since the perp is identified. Whether criminal charges are to be brought is up to the DA. Maybe they will. Maybe they won't. Since you didn't file the charges immediately, it is less likely they will.

But, filing the report at least gets it on the record, formally, that you are making this charge. Since such a filing done falsely is itself a crime, you are effectively saying this crime took place in a very affirmative manner. Include that paperwork with your BK court filing (as well as other evidence).

Did the criminal action take place in your state and locality, or hers, or somewhere else?

It may be possible for you to add legal costs to the debt when you sue her after (and if) the BK court exempts this debt from discharge. It may be possible for the costs of this action by you with her BK to be part of those added costs.

 

[NetBook]

You should have filed the appropriate police report as soon as the crime took place. You can still file it, anyway, but then, you may have to explain why the delay happened. it may be that you intended to just give the her and opportunity to right a wrong. You can say at this point it is clear she has no intention to do so, and you have proceeded to file the appropriate criminal charge.

There is no detective work for the police to do, since the perp is identified. Whether criminal charges are to be brought is up to the DA. Maybe they will. Maybe they won't. Since you didn't file the charges immediately, it is less likely they will.

But, filing the report at least gets it on the record, formally, that you are making this charge. Since such a filing done falsely is itself a crime, you are effectively saying this crime took place in a very affirmative manner. Include that paperwork with your BK court filing (as well as other evidence).

Did the criminal action take place in your state and locality, or hers, or somewhere else?

It may be possible for you to add legal costs to the debt when you sue her after (and if) the BK court exempts this debt from discharge. It may be possible for the costs of this action by you with her BK to be part of those added costs.

First of all, thank you for reading and trying so hard to understand my situation. I will try to answer your question as best I can. Please let me know if you need more explanation.

This individual is not your run of the mill Nigerian scam but a actual seasoned professional con artist on the highest caliber. Her full time job is to scam people, that is how she makes her living full time.

It was not like I realized from the beginning that I had been scammed, I was always lead to believe that I was just a few days from receiving the items or my money back if I just gave it 1 more week. She would use very sad stories to gain sympathy and delay for time, nothing was off limits.

Car accidents, divorced, Sick child at the hospital, going into surgery tomorrow, being heavily medicated and unable to speak to you right now. Possible amputating of limbs, Calling up absolutely crying in tears,etc..

She knew the right things to say to make you feel like a complete jerk. She knew her medical terms, hospital procedures and would really put on a show.

She tried to make you into a monster for even questing someone in such an awful situation. She would literally say that they were prepping her for surgery within the hour and it was life threading. Her voice would tremble as if she truly believe it would be her last words.

Many of the stalling methods, were, its in the mail, its lost in the mail, I waiting for replacements to be issues, they were lost in the mail, I am waiting for my child support check to come in the mail so I can pay you back,etc..

Basically the dying in the hospital, relative just died, child dying of a disease was pulled out every time things got heated over the replacements items were lost in the mail.


By the way, everything she said was a complete fabricated lie and she pulled this trick on many other people which filed disputed with their credit card company when I emailed the other buyers later. However, at the time, she told me she had taken care of the other people on ebay and they had left all the negative feedback claiming fraud prematurely.

Anyway, later on I was told that she could not work because of a life threaten illness and her husband left her to raise her kids alone and that she would pay me in small payment per month. Just wait a month for her first check to come in,etc..
She never even sent me even so much as a $1,. Finally, she just just said, well, you will never get anything because I am declaring bankruptcy so I don't have you pay you anything.

I am not sure if that is an excuse or not but never she never openly said that she did not intend to pay me until recently. It was always a sob story and a promise to pay or deliver until in a heated moment, she brag about not going to pay me and the next thing I know, I get a bankruptcy letter.

I never experienced a situation like this before and I did not know were to start. I actually did try calling my police department once but they told me that they could not help me because the person was out of state and I should contact the FBI. I called the small claims court, they would not even tell me how the system works. I looked up some association that would allow you to talk to a lawyer pro bono, but most all of them could only deal with exclusively immigration services or filing for bankruptcy. They would not help in a case of being defrauded.
It was basically an online/telephone involving ebay transactions. ( not sure what state online/phone would be subject to)


So I did not even know what state, what branch of authority, court system to even start with a case like this.

I was always told by her for the majority of the time that I was between 1-7 days away from either getting the item or money back.

Please let me know if this help to clarify the time delay issue. Let me know if there is anything else you would like to know. I really have no place left to turn on this nightmare.



Thanks.