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TJ, Esq.
TJ, Esq., Attorney
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Experience:  JD, MBA
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my husband and i were defendants in a civil suit in Az. some

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my husband and i were defendants in a civil suit in Az. some defendants settled or were dismissed because they were never served. I filed bk and on my bk i listed two judgements for attorneys fees related to this complaint. The complaint against me was fraud, etc. my counterclaim was for loans not repaid and for breach of contract. They intend to file a non-dischargeable request for the attorney fees - not to motion for lift of automatic stay. Can they do that? Now my second question is my husband engaged the attorney for plaintiff/counterdefendants in a settlement discussion to avoid "the uncertainity They sent the agreement over with an email that said if we wanted to make any changes to do so. We did. The atty called my husband and said he will sign this settlement agreement it is binding. she quoted rule 80(d) az r civ proc. Sheordered him to sign it. He doesn't want to. - can they force him to sign - they said w/o his signture the judge will sign it. how can that be?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  TJ, Esq. replied 5 years ago.

Hello and thank you for allowing me the opportunity to assist you.

Question: “They intend to file a non-dischargeable request for the attorney fees - not to motion for lift of automatic stay. Can they do that?”

Answer: At the very least they can file the adversary proceeding and request that the debt be excepted from discharge. Debts incurred through fraud cannot be discharged pursuant to Section 523 of the Bankruptcy Code. I can’t say that they’ll win, but it’s possible. If they do win, then you’ll continue to owe the monies after discharge.

Question: “They sent the agreement over with an email that said if we wanted to make any changes to do so. We did. The atty called my husband and said he will sign this settlement agreement it is binding. she quoted rule 80(d) az r civ proc. Sheordered him to sign it. He doesn't want to. - can they force him to sign - they said w/o his signture the judge will sign it. how can that be?”

Answer: Rule 80(d), Arizona Rules of Civil Procedure, states:

“No agreement or consent between parties or attorneys in any matter is binding if disputed, unless it is in writing, or made orally in open court, and entered in the minutes.”

Here’s what an Arizona court stated about the issue:

The policy behind Rule 80(d) is to relieve the trial court from having to resolve factual disputes as to the existence and terms of an alleged settlement agreement.

In order to effectuate Rule 80(d)'s policy of avoiding difficult issues of proof in the context of enforcing settlement agreements, we hold that the manifestation of assent, as well as the terms of the agreement, must be in writing. Canyon Contracting Co. v. Tohono O'Odham Housing Authority, 837 P.2d 750, 172 Ariz. 389 (Ariz. App. Div. 1, 1992).

So basically, a settlement is binding if (1) the terms are written, and (2) the parties’ assent can be shown (note that nothing is mentioned about a signature). Assuming the unsigned document clearly states the terms of the settlement, then the first prong is met. The only other issue is whether the parties’ assent can be shown. The other party’s assent is clearly shown in that he did sign the document. You husband did not sign it, but the fact that he made changes and sent it to the other party could be viewed as assent. In other words, if your husband didn’t agree to the terms of the document, why would he make edits and then send it back to the other party for approval? I think you’re husband may lose that argument. I wish I had better news.

Have I satisfactorily addressed your concerns? If not, then please feel free to ask for clarification.

Although my answer was unfavorable, please understand that my goal was to provide you with honest information. With that in mind, I hope that you found my answer useful. If so, then please remember to click the green accept button so that I will receive credit and compensation for my time. Positive feedback is always appreciated as well. Thank you and good luck!

.

DISCLAIMER: Please understand that the complexities of most legal problems cannot be adequately addressed in this setting, and that I am only licensed to practice law in the State of Maryland. Accordingly, by continuing in this discussion and/or by “accepting” my answer you acknowledge that (1) we have not formed an attorney-client relationship, (2) my answer is general information only and is not legal advice, and (3) you should not rely on my answer in undertaking any course of action without first consulting with an attorney in person who can review all relevant facts.

 

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