I need guidance as a creditor. Anyone?

[anabanana]

What is the name of your state? Florida

If someone files bankruptcy before we have any judgment or even a hearing in my lawsuit, how can their debt to me be discharged in a Chapter 13? There hasn't even been any finding or agreement on what the amount would be, so what is there for the debtor to be relieved of?

And do people filing Chapter 13 really not have to provide supporting documentation for their financial status? All they have to do is fill out the form (under penalty of perjury) without providing any verification?

I know some people really need the relief of bankruptcy, but I'm about to get screwed by someone who has about $125,000 stashed away (not to mention propery), and they're filing bankruptcy to get out from under only about $25,000 in consumer debt. Something's very fishy here.

 

[Ladynred]

They include your lawsuit against them as a 'contingency' debt - meaning they don't know how much it is/would be, don't know if there would ever be a debt owing, but it COULD happen - so they just fill in some amount.

If you feel there is fraud going on, then you need to write to the Trustee and explain it.

 

[anabanana]

so am I just dismissed?

There's no figure listed. It says "notice only" and it doesn't say anything about contingency, it just notes that the suit is pending.

Part of what this clod owes me is misappropriated support money for our two kids, and that's not supposed to be exempt, so what happens to my suit? Can I ask for it to be heard first, to get a judgment one way or the other from the civil court, and then let the bankruptcy court decide what if any portion I should get?

 

[JETX]

Lets try this a different way...
The judgment hasn't been rendered (or if it will be at all), however, the plaintiff in the lawsuit certainly feels that they owe him/her something..... therefore, the lawsuit.

And when they file for bankruptcy, that underlying claim (for whatever it is) can be included by simply listing that person or company as a creditor. Once the bankruptcy is filed, the lawsuit either halts or, if a judgment has already been rendered, they can request that the judgment be set aside if included in the filing.

 

[anabanana]

Not much justice in that, huh?

Wow. Before there's any discovery or finding of fact or anything? That's a gas. And a real drag, as it sounds like it's essentially a free pass for all sorts of malfeasance.

Though I do find on the site these general principles about debts that can't be discharged:

(8) Debts incurred due to false statements made with the intent to deceive
(9) Fraud committed in a fiduciary capacity, such as embezzlement or larceny
(10) Punitive damage claims for "willful and malicious" acts

I just don't see how they can say, "sux to be you" and leave it at that, when the purpose of the suit is to establish the first two, and in part, ask for the third (though mainly I just want to be paid back, which at this point would be vindication and probably punitive enough). And I had sorta hoped that, because part of what I'm owed is misappropriated child support monies, the suit en toto might be allowed to proceed. Fat chance, huh? I mean, are they ever allowed to proceed, at least to the point of getting a judgment, which then might be reduced or weaseled out of? What if someone had just been sued in a drunk driving case, which is another (very) specific exemption. This blows my mind.
Anyway, thanks for your input.

ana

 

[Ladynred]

You can always request a relief from stay to go forward with that phase of the suit, especially if it will determine that child support is at risk as well as the perpetration of fraud. You'll have to make your case very strongly to get the BK court to grant you the relief, but it can and does happen.

 

[anabanana]

Well, allllrighty, then!

a-HA! There IS some hope, then...

<<<You'll have to make your case very strongly to get the BK court to grant you the relief, but it can and does happen.<<<

And perhaps it will here, too. That's something to reach for at least. So is this an argument I'll have to have ready for the 341 hearing? Or will I need to file a motion of some sort? Can you recommend a book or guide of some sort? I've been kicking butt so far as a pro se respondent (to the debtor's groundless custody suit), but that's mainly because it was so very, very groundless, and not due to any particular legal acumen on my part. Representing myself as a "creditor" is going to get out of my depth, and the lawyer who helped me with the civil action is out of the country until after the 341 is over. I'm happy to do the legwork, but I just can't find much guidance on the web for do-it-yourselfers on the creditor side of the bankruptcy equation. Any recommendations, anyone?

Thanks!
ana

 

[Ladynred]

You don't HAVE to wait for the 341 meeting, you can file your motion requesting "relief from stay" right now. You could also show up at the 341, and probably should if you can, and file your objection to this person's discharge of this debt. Be prepared with as much proof of fraud and the misrepresentation of the child support debt as you can.

You can find sample forms for the Motion for Relief from Stay ( and lots of others) here:

http://lawyerassistant.com/freeforms/#creditor

Obviously you will need to tailor it to suit your situation.

 

[anabanana]

Objecting to the confirmation?

You know, the more I read from some of the folks in here who actually have some real problems their BK could help them with, it's starting to tick me off that this mook is essentially just filing this thing to thwart me. It's just abusing the system for spite.

He's got perfect credit, and does not appear to be living beyond his means to any great extent. My guess is that once he decided he could only avoid my civil interrogatories by filing BK, he just looked around to see what other obligations he might be able to skip on, since it's going to hurt his credit now, no matter what. And at that, I bet he reaffirms his other debts. Aside from his mortgage, there are only three others, for a total of about $25K! Two credit card companies and the attorney he used to sue me for custody. Maybe he's gonna try to stiff her because they lost. How low is that?

The 341 is next Thursday. Couldn't I just make an objection to the confirmation based on the fact that the debtor has recently REDUCED his expenses and had previously been making all his payments timely anyway, so there's no need for a BK, other than to avoid my litigation?

I think I could show enough inconsistencies and inaccuracies in his filing to raise questions about the authenticity of the whole thing. I guess for big creditors for whom the debtor is just another account, this stuff is routine, and probably part of the cost of doing business. But it's probably not wise to file bankruptcy just to screw someone who knows you well, especially if you can't keep your facts straight. Harrrumphh!

 

[Ladynred]

I would tend to agree. Your biggest trump card in all this is the child support. If he's misrepresenting that debt to make it look like its NOT child support, then you definitely need to step in, loaded with proof and as much backup to your claims as you can and put it in front of the Trustee. If you can get it together, you can take your motion for relief from the stay with you and let the Trustee know you're filing it.. and why.

 

[anabanana]

relief from the stay

Since the issue of support is part and parcel of a larger suit, is it possible that they might tell me I can proceed on the support part, but I'm out of luck on the rest of it? And would it make any difference that it was third-party support, paid by the State, rather than support that had been ordered for HIM to pay?

tnx
ana