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.
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