HELP PLEASE!@#$%^&*(

[badapple40]

I am supposing that Belize's response was directed at me, what, with me being the new guy here and all. And for the record, I never made $2,000,000. I just worked my tail off so that partners made money and drew a salary. Anyhow:

I just read that case, the full cite is 284 F.3d 1007. It continues to support my contention that service by publication is a last resort, and usually implemented only where the Defendant is unknown.

To initiate suit, RIO attempted to locate RII in the United States for service of process. RIO discovered that RII claimed an address in Miami, Florida when it registered the allegedly infringing domain names. As it turned out, however, that address housed only RII's international courier, IEC, which was not authorized to accept service on RII's behalf. Nevertheless, IEC agreed to forward the summons and complaint to RII's Costa Rican courier.
...
Unable to serve RII by conventional means, RIO filed an emergency motion for alternate service of process. RII opted not to respond to RIO's motion. The district court granted RIO's motion, and pursuant to Federal Rules of Civil Procedure 4(h)(2) and 4(f)(3), ordered service of process on RII through the mail to Carpenter and IEC and via RII's email address, [email protected].

While I agree the decision stands for the proposition that there is no heirarchy between methods of service under the Federal Rules of Civil Procedure, the constitution, under Mulane still requires the notice be "reasonably calculated" to give notice. What is notable in the case you cite is that they communicated with the Defendant at a United States address the defendant used to conduct operations in the United States, as well as an e-mail address the Defendant used in connection with its business.

One wonders why, if, as has been contended, service by publication would have been proper at the outset, despite knowledge of an actual ability to contact the Defendant, the Plaintiffs had not pursued that option.

I challenge you to point to any case where a Defendant's address was known, overseas or locally, where the Defendant was served by publication, where the sufficiency of process has been challenged, and where the sufficiency of process was upheld.

Siefkes v. Nichols, 788 F. Supp. 477 indicated:

This circular reasoning makes no sense. K.S.A. 60-307 specifically provides for the due process protections which Siefkes claims are applicable. It says publication service can be utilized only when the defendant's whereabouts are unknown or not reasonably ascertainable. The statute would be unconstitutional if it did not contain such a requirement.

Citizens & Southern Nat'l Bank v. Auer, 514 F. Supp. 631 , which denied a motion for service by publication where service on a last known address wasn't made.

In Preston v. Denkins, 94 Ariz. 214; 382 P.2d 686, the Supreme Court of Arizona set aside a default judgment obtained through publication where it was shown that diligence was not used to give actual notice to the Defendant.

My point is this, if it is clear that a Defendant moves to a foreign jurisdiction, not for the purposes of evading service, and his address there is known, there has to be actual notice to him in the foreign country, and service by publication isn't going to cut it.

The Hague Convention, ratified by the United States in 1965, regularized and liberalized service of process in international civil suits. HN3The primary means by which service is accomplished under the Convention is through a receiving country's "Central Authority." The Convention affirmatively requires each member country to designate a Central Authority to receive documents from another member country. See Hague Convention, art. 2. The receiving country can impose certain requirements with respect to those documents (for example, that they be translated into the language of that country). See id., art. 5. If the documents comply with applicable requirements, the Convention affirmatively requires the Central Authority to effect service in its country. See id., arts. 4 & 5. Brockmeyer v. May, 2004 U.S. App. LEXIS 18349 (Aug. 31, 2004).

I am fully willing to admit that I have never had a case dealing with Hague Convension service. But the thought occurs to me that there is nothing about service by publication in the Convension, insofar as I can see. The preferred method of service is one that involves actually receiving the summons.

If I am wrong about something, I'm willing to take a hit on it, but I'd like to see a case where a Defendant whose whereabouts could be ascertained was successfully served via publication.

 

[BelizeBreeze]

Are you doing drugs? You don't even know what you're arguing.

Remember this statement?

Publication is a last resort and only where the whereabouts of the defendant is unknown. If they know where he is, e.g. europe, they have to serve him there.

No one ever said they "KNEW" where this poster is. The point is that if he flees to Europe, service CND be effected, period.

Or are you saying that the court will simply send the notice of service to 'Europe'?

No one is arguing that if the whereabouts of the defendant are known.

And, in fact, one treaty in the European theatre denies service by publication. So it's a moot point. Want to guess which?

 

[Ladynred]

Ok, lets concede that they CAN follow the OP to the UK. The big question is WILL they bother ?? They obviously can get judgments here w/o the OP even being here, as we all know it happens all the time. 75K spread across 10 cards, its reasonable to assume that some of them WILL sue, but WILL they bother to pursue him out of the country ?? Most of these companies and collection agencies want it over and done with as quickly as possible, they EXPECT default judgments and I suspect they don't care all that much for a fight from a defendent that actually shows up in court to face them. I just wonder how far they'll actually go with a debtor who is, most likely, permanently out of the country ???

Bankruptcy might still be your better option. As far as I know, you don't have to reside in the state for 6 months AFTER you file, but you DO have to be a resident of the state for the majority of the 180 days BEFORE you file. You also MUST be here for the creditors meeting which happens about 30 days after your filing date. After that, I'm not aware of any residency requirement. If you move, you will have to notify the court so they will know where to send your discharge papers and any notices that come up (if any).

You might be better off by filing for BK and getting shed of the burden and the potential risk for international lawsuits.

 

[badapple40]

Are you doing drugs? You don't even know what you're arguing.

Remember this statement?


No one ever said they "KNEW" where this poster is. The point is that if he flees to Europe, service CND be effected, period.

Or are you saying that the court will simply send the notice of service to 'Europe'?

No one is arguing that if the whereabouts of the defendant are known.

And, in fact, one treaty in the European theatre denies service by publication. So it's a moot point. Want to guess which?

I fully agree with you that if the poster cannot be reasonably located that service by publication would be effected. I'm assuming that he is in some kind of contact with the creditors, given the extent of the debt.

And I think we all agree he needs to work out a repayment plan with these creditors or file bankruptcy to take care of the debt.

 

[pliers]

Hi Ms Red

I too, thought this was the case but I checked with CCS (Consumer Credit Services) and an attorney there told me that I had to be resident for at least six months after the filing date as the court administered all my accounts. I was a bit surprised as this seemed to penalize me as I am almost certain I can get back on my feet by relocating. My concern is simple. If I no longer have the threat of bankruptcy as a legitimate weapon to stall legal harrassment and come to some compromise with my creditors what can I do? The advice given to me by CCS was go to Europe, then inform creditors one by one where you are, and offer them a percentage as a settlement. They will take it because the cost of suing you is too high. Is this still a good plan? Also in your post you allude to collection agenicies not bothering to sue. Is this true ? . The biggest single debt is $12,000 . If all the get is a default judgement what does that mean ?

Thanks for your help.

 

[Ladynred]

I'm sorry, but CCS people are not bankruptcy lawyers !! I've seen more accounts of BAD information out of these CCS people than you might believe.

Were you talking about a Chapter 13 (3-5 year repayment plan) or a Chapter 7 (no repayment, debts essentially wiped out). In a Ch 7, which it seems to me would fit your needs and your current financial situation, there is no 'administration of accounts' by the court. Once you have your discharge - about 90 days after you file - its over and done with. The courts, in that case, do NOTHING with your accounts except to notify your creditors that you have filed for bankruptcy. If you were talking about a Ch 13 - which would only work if you had a steady income - then once your plan is accepted, then you typically send money in a lump sum to the Trustee and the Trustee sends money on to your creditors. The court still doesn't really administer your accounts in the way CCS implied.

I think you should go talk to a bankrutpcy lawyer or 2, most all of them give free initial consultations, get the straight story from someone who DOES know.

 

[pliers]

Thanks

Chapter 7 was what I was thinking of. But according to the books I got out of the Library they close your bank account and open a new one that is addmistered by a representative of the court. I was told you are not free of this service until six months past the judgement date. But I will try and find an attorney.

Thanks

 

[Ladynred]

What ?? No, I don't know what book you're looking at but "they" don't do ANYTHING with your bank accounts and they do NOT administer your accounts in a CH 7.

Read here about the BK process: www.thebankruptcysite.com.
A typcial BK timeline is here: http://www.doney.net/timeline.htm

Basically you list all your debts, your assets, and your entire financial picture, asking for 'relief' from your debts. 30 days after you file, you have a meeting with the Trustee, he asks you some questions and then you go home. The whole thing lasts less than 10 minutes for most people. After the 341 meeting, creditors have 60 days to file an objection to your bankruptcy - most never do. On day 61, if there have been no objections, your discharge is granted and you're free of your unsecured debts.

Now, that's a rather simplified version of the process, but there's no administration of your accounts, the court has nothing to do with your bank accounts, etc. You want a good book, look for the NOLO Press book, "How to File Chapter 7 Bankruptcy", the library might have it and Borders or Barnes and Noble carry it and you could browse thru it

 

[pliers]

Thank you. You make it sound very simple. I looked at the two web sites you recommended and they made it sound simple, too. But I could have sworn that I read that they closed your bank accounts and the trustees administered your estates (i.e., assets) throughout the process. We are just bringing in enough for the essential bills right now (rent, food, emergency health insurance). Also from your links it seems to say that as long as I stay in the US for 90 days from the filing date we will be allowed to file Chapter 7. Once again, than you very much for your advice.

 

[pliers]

In Fact

Thanks everyone for their advice. Including the fiesty Mr Belize ( i'm sure not his real name). I have enjoyed the ensuing battle of legalise my inqury promted.


Pliers ( not my real name either )

 

[Ladynred]

I read that they closed your bank accounts and the trustees administered your estates (i.e., assets) throughout the process.

Ok, now I understand what you're reading and getting at. Let me clarify. When you file for bankruptcy, everything you own becomes your bankruptcy 'estate' as of that date. Essentially then, the Trustee does, in a way, administer that estate. That means that IF you have assets that the Trustee can take and sell to pay off your creditors, he has the authority to do it. That's not to say you have no choice in the matter, there are ways to save assets you wish to keep. However, in a no-asset case (meaning no non-exempt assets), there's nothing for the Trustee to take and sell and the Trustee then 'abandons' the estate and informs your creditors there are no assets to sell off and they are not to file any proofs of claim.
As far as I know, they don't close your bank accounts, that would be stupid, people have to pay bills and pay normal expenses while the whole process is going on.

Hope that helps

 

[pliers]

Hi

In California the way I read it was that the Tristee opened an account that they look after. This was in a no asset and asset case. The buisness of what you can keep got very murky as well. I am allowed I believe to keep $5000 worth of assest to conduct my buisness and there seem to be a celling for furniture ,clothing and effects. But the reason I thought it did'nt apply to me was the fact that the trustee stayed in touch for six months afterwards. I was also told if I suddenlly started work in that period and got a big paycheck (not unusal in my line of work) that may go to pay of my bills.

Pliers

 

[badapple40]

I'm going to explain this in simple terms and not use legal language. I am going to assume we are talking about a Chapter 7 liquidation bankruptcy filing and not a Chapter 13 or Chapter 11 action.

When you file:

1. An automatic stay occurs, stopping creditors from getting or coercing you to pay. There are exceptions to the automatic stay provision, e.g. governmental enforcement actions, and the like.

2. Your assets, at the time of filing, then belong to the bankruptcy estate, administered by the trustee. While the bankruptcy trustee can go after fraudulent transfers occurring before the filing and "get back" some of the property transfered, they cannot touch money you make post-filing (this is different than, say, interest on accounts you held pre-filing, since those accounts, and the interest on them, are owned by the estate) . Since the purpose of the bankrupcy process is to give you a fresh start, anything you make post-filing is yours. Not all assets at the time of filing belongs to the bankruptcy estate, since some property is exempted from the process. Each state enacts laws governing what is and is not exempt property and it is not consistent at all from state to state. For instance, Florida allows you to keep an expensive house out of the bankruptcy estate, while Deleware exempts the family bible. Obviously, in both Deleware and Florida, more is exempt than just that, but I list those as examples. Most states take a middle of the road view, and allow you to keep so much money regarding your house, a car, tools of your trade, etc.

3. Debts are scheduled at the time of filing, e.g. you list everyone you owe money to and an approximation of the amount owed. Similarly, proofs of claim are filed by creditors seeking to establish that they are in fact owed.

4. From the bankruptcy estate creditors are paid according to priority rules. Secured creditors, who have perfected their interest, are paid from the collateral. Administrative expenses are paid next, and so on.

5. You then will get an order from the court, after all the assets have been paid out, discharging the remaining debt, which means that it is invalid. Some debts, such as student loans, are not subject discharge, but in your case, the credit card debt would be. If you play games with your assets or otherwise attempt to engage in activities to attempt to defraud your creditors of what is due them, the bankruptcy court has the option to deny you a discharge -- meaning you are still on the hook for anything not paid from assets.

This is the extent of the advise I am going to give you. You should consult and retain counsel to pursue the matter.

 

[JETX]

Though I do appreciate your attempt to clarify... it is equally important that your information be correct. With that:

I am going to assume we are talking about a Chapter 7 liquidation bankruptcy filing and not a Chapter 13 or Chapter 11 action.

A chapter 11 applies to businesses. There is NOTHING in this thread to even suggest that an 11 would apply.

While the bankruptcy trustee can go after fraudulent transfers occurring before the filing and "get back" some of the property transfered,

That isn't really correct. The Trustee can request/order any payments made to creditors in the 90 days preceding a bankruptcy case as preferential under Section 547 of the Bankruptcy Code if certain conditions are met. This has NOTHING to do with fraud or transfers.

Not all assets at the time of filing belongs to the bankruptcy estate, since some property is exempted from the process. Each state enacts laws governing what is and is not exempt property and it is not consistent at all from state to state.

That is correct. It might have been helpful to provide a link to one of the many sites that list the exemptions for all the states, like:
http://www.thebankruptcysite.com/what-do-i-keep.php

 

[badapple40]

Though I do appreciate your attempt to clarify... it is equally important that your information be correct. With that:


A chapter 11 applies to businesses. There is NOTHING in this thread to even suggest that an 11 would apply.

I'm aware that it probably is not a chapter 11. I wanted to clarify, however, that I was simply discussing a chapter 7, which appeared to be appropriate. There isn't anything unaccurate about it. However, there was some indication that he was employed as a contractor in the entertainment business -- and if he had his own business as a result, the door may be opened to an 11.

That isn't really correct. The Trustee can request/order any payments made to creditors in the 90 days preceding a bankruptcy case as preferential under Section 547 of the Bankruptcy Code if certain conditions are met. This has NOTHING to do with fraud or transfers.

Right I don't disagree with your point about preferences, and, by the way, some preferences look back one year, e.g. for payments to "insiders." The trustee can also revoke payments under state fraudulent transfer statutes as well. However the advise and point I was making had nothing to do with the ability of the trustee vis-a-vis preferences and fraudulent transfers, but rather that, as of the time of filing, any wages he makes or money he brings in, so long as it is not due to him at the time he files the petition, is not part of the bankruptcy estate.

That is correct. It might have been helpful to provide a link to one of the many sites that list the exemptions for all the states, like:
http://www.thebankruptcysite.com/what-do-i-keep.php

I agree.