What is the name of your state (only U.S. law)? AZ
Person A already owes Person B some money. Later on, Person A perpetrates identify theft fraud by applying for a personally guaranteed line of credit in his name and Person B's name with bank.
Person A defaulted on line of credit and renegotiated line of credit to an amortizing loan, apparently in his name only. Person B is still unaware of either account.
Person A defaulted on amortizing loan and bank came after Person B for the original fraudulent account that had been paid off by the transfer to Person A's amortizing loan, a fact the bank concealed. Person B denied knowing anything about the account and claimed fraud.
Coincidentally, bank owned Person B's mortgage and essentially extorted much of the debt owed on the amortizing loan by threatening the property--Person B's and Mrs. Person B's community property in a community property state.
Person B later discovered that there were two accounts and that the bank had entered into the secondary agreement with Person A only. The bank's own statements reflect that the original fraudulent account was satisfied. In addition, bank violated AZ state law and it's own contract since wives' signatures were not obtained for the personal guarantee. Bank knew that the community property of both Person A and Person B were off limits.
Mrs. Person B finally finds out what's going on and files police report and retains attorney who sends demand letters to the bank to return the money collected on Person B. Bank refuses.
Person B has always intended on action against the bank to recover the money extorted and damages. Person B's attorney has been dragging his feet and Person B has had to interview other attorneys for the case. In the meantime, Person B gives Person A the option of being sued in civil court or signing a Promissory Note and Trust Deed for the money originally owed in addition to the fraud. Person A signs the instruments.
Person A files bankruptcy petition 59 days later.
Person B files adversary proceeding challenging the discharge of debt obtained by fraud owed to Person A as well as challenging overall discharge for other false information found in petition.
Bank is named as creditor in Person A's petition for the remainder of the debt not collected on Person B.
Person A's senior trust deed is seeking a relief from stay to foreclose. Person B's interest will be wiped out since there is now an inadequate equity cushion.
QUESTIONS:
If the senior trust deed forecloses and Person B's junior trust deed is wiped out, can Person B ask the court in the Adversary Proceeding for a judgement for the value of the breach of contract on the Promissory note WITHOUT jeapordizing the future action against the bank?
If Person B obtained the judgement, could the bank claim that Person B had been "made whole" by that action in a claim against it and get the suit dismissed?
Person B is concerned about the appearance of attempting to "double-dip." The fact is, the money is most recoverable from the bank than from someone who is attempting to declare bankruptcy and who hasn't paid a dime. Couldn't Person A just sue Person B if the money is later recovered from the bank?
Person A already owes Person B some money. Later on, Person A perpetrates identify theft fraud by applying for a personally guaranteed line of credit in his name and Person B's name with bank.
Person A defaulted on line of credit and renegotiated line of credit to an amortizing loan, apparently in his name only. Person B is still unaware of either account.
Person A defaulted on amortizing loan and bank came after Person B for the original fraudulent account that had been paid off by the transfer to Person A's amortizing loan, a fact the bank concealed. Person B denied knowing anything about the account and claimed fraud.
Coincidentally, bank owned Person B's mortgage and essentially extorted much of the debt owed on the amortizing loan by threatening the property--Person B's and Mrs. Person B's community property in a community property state.
Person B later discovered that there were two accounts and that the bank had entered into the secondary agreement with Person A only. The bank's own statements reflect that the original fraudulent account was satisfied. In addition, bank violated AZ state law and it's own contract since wives' signatures were not obtained for the personal guarantee. Bank knew that the community property of both Person A and Person B were off limits.
Mrs. Person B finally finds out what's going on and files police report and retains attorney who sends demand letters to the bank to return the money collected on Person B. Bank refuses.
Person B has always intended on action against the bank to recover the money extorted and damages. Person B's attorney has been dragging his feet and Person B has had to interview other attorneys for the case. In the meantime, Person B gives Person A the option of being sued in civil court or signing a Promissory Note and Trust Deed for the money originally owed in addition to the fraud. Person A signs the instruments.
Person A files bankruptcy petition 59 days later.
Person B files adversary proceeding challenging the discharge of debt obtained by fraud owed to Person A as well as challenging overall discharge for other false information found in petition.
Bank is named as creditor in Person A's petition for the remainder of the debt not collected on Person B.
Person A's senior trust deed is seeking a relief from stay to foreclose. Person B's interest will be wiped out since there is now an inadequate equity cushion.
QUESTIONS:
If the senior trust deed forecloses and Person B's junior trust deed is wiped out, can Person B ask the court in the Adversary Proceeding for a judgement for the value of the breach of contract on the Promissory note WITHOUT jeapordizing the future action against the bank?
If Person B obtained the judgement, could the bank claim that Person B had been "made whole" by that action in a claim against it and get the suit dismissed?
Person B is concerned about the appearance of attempting to "double-dip." The fact is, the money is most recoverable from the bank than from someone who is attempting to declare bankruptcy and who hasn't paid a dime. Couldn't Person A just sue Person B if the money is later recovered from the bank?
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