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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33574
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I found out last night that a (former) friend..that I loaned

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I found out last night that a (former) friend..that I loaned $175,000 in June 2007....and stopped making monthly payments on the loan 6 months ago...is filing for bankruptcy tomorrow. I have a notarized Promissory note and Stipulation of Settlement...how can I get any of this money back??What steps do I take.?? It seems that al the rights are in favor of the debtor...not the The debtor does own an antique store with assets up to $700,000 ...but there are also other creditors in line. What are the steps for me to take before he files tomorrow?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 5 years ago.

If your loan was secured by the debtor's home, then you still have the right to foreclose, assuming that the property has any equity in it that you could get from a sale.

 

Otherwise, the only thing you could do would be to challenge the discharge of the debt in bankruptcy court on grounds that you were defrauded/duped into making the loan, based on your friend's exploitation of the relationship. That is, if you could show that the debtor had no money or property value at the time the loan was made, and that he/she purported otherwise to you, then the bankruptcy could could refuse to discharge the debt, and you could continue to pursue the debtor after bankruptcy -- assuming that he/she ever earns any money in the future.

 

If you can't do any of the above, then the debtor's claim will be discharged and you will never collect anything.

 

I know this isn't what you want to hear -- please don't shoot the messenger.

 

Customer: replied 5 years ago.
The loan was NOT secured by the debtor's home -- he told me had a lot of money in equity in his home...when,in fact, he is mortgaged over tbe value of the home and now is going thru a divorce. The only asset that he has is his antique store with approximately $750,000 worth of furniture in it ---- using my $175,000. I'm not trying to shoot the messnger...I thought you would give me some positive feedback on the fact there is a notarized Promissory note and Stipulation of Settlement that he agreed to.
Expert:  socrateaser replied 5 years ago.

The note is an unsecured loan. The bankruptcy court will discharge it.

 

The stipuated settlement will similarly be discharged.

 

However, if the debtor has assets that could be used to satisfy your claim, then you can file your proof of claim with the bankruptcy court and hopefully get something back via the liquidation of the antique store assets.

 

Note: if the store is a separate business, and it is not insolvent, then you would have to show that your friend used your money to fund the business, and that said funding occurred within the past 4 years. If you do, then that would be a "fraudulent transfer" which would permit you to reach the store's assets to pay your claim. This could give you an advantage over other creditors. However to make your case, you may need to hire a forensic accountant to help you trace the funds to the store.

 

Debtors in bankruptcy must attend a hearing wherein creditors are entitled to ask questions about assets, which the debtor must answer under oath. You may be able to get some good evidence from that hearing if you ask the right questions.

 

Ultimately, you will have to move the bankruptcy court to refuse to discharge the debt, and for that you will almost certainly need an attorney to help you plead the case.

 

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33574
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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