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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
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Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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About five years ago my billing firm embezzled a very large

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About five years ago my billing firm embezzled a very large amount from me and several others. She was prosecuted for medicare and tax matters, pled guilty, and is presently in jail for a year. During the course of the investigation she shredded documents and did not turn over petitioned records. She has protected assets including a home and cars bought with stolen funds. I have only recently obtained records form the DOJ. Would there be any advantage to re-opening the (fraudulent) bankruptcy vs. a civil suit?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 5 years ago.

I assume that you were listed as a creditor on the original bankruptcy. If so, then in order to reopen the bankruptcy and file an adversary complaint, you would need evidence that could not have been known by use of the tools of discovery at the time that the original discharge order was entered.

 

This means that even if you did not have the evidence in your possession, if you could have subpoenaed it from the DOJ at the time of the bankruptcy, and you failed to do so, then the court is likely to deny your complaint as res judicata (already decided).

 

If the evidence was unavailable by any means due to the debtor's willful concealment, and only now has become available, then that would give you grounds to pursue the debtor.

 

Hope this helps.

 

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Customer: replied 5 years ago.
I am reasonably certain that the DOJ became involved after the bankruptcy began, but before the discharge. During this time I was prohibited from further pursuit of information by the bankruptcy court. There were also Hippa considerations. The DOJ was only able to return the records that I sent to them - not the entire investigative effort (including bank deposits.) So this means I probably cannot re=open at this time? My estimated loss is roughly $300-400,000.
Expert:  socrateaser replied 5 years ago.

If by "prohibited from further pursuit of informatin by the bankruptcy court," you mean that the automatic stay prevented you from further collection efforts, then that won't help your cause, because had you filed an adversary complaint fto have the debtor's debt to you declared fraudulent, at the time, you would have been able to force discovery by subpoena of whatever information you needed to make your case.

 

If you mean that the court made specific orders preventing you from pursuing the debtor because it would undermine the government investigation, then that would give you grounds to reopen the case.

 

Considering the amount at stake, you don't have a heck of a lot to lose either way, by moving to reopen -- I just don't think you'll be able to win your motion unless your facts are as I've described.

 

But, you can certainly run it by a local bankruptcy lawyer and see if there's something I've missed in the analysis.

 

For a referral, see: http://www.abanet.org/legalservices/lris/directory/ and www.martindale.com.

socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34675
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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socrateaser
socrateaser
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Attorney and Real Estate Broker -- Retired (mostly)