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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34138
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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I have an adversarial suit filed against my husband and I in

Customer Question

I have an adversarial suit filed against my husband and I in our chp 7 bankruptcy in North Texas (it has been discharged other than this claim). The plaintiff is completely ignoring the contractual agreement he and the my husband signed with a notary in 2007. In his filing, he does not reference any proof, just he said this and that. The written agreement between my husband and the plaintiff plainly states that any verbal agreements or promises are not included in the agreement. And my husband says he did not verbally promise what he is alleging anyway.

Today, the plaintiff is threatening discovery and the whole unpleasant experience of a civil lawsuit. I am going to file a detailed response to the suit tomorrow morning with the corresponding written agreement and other papers that dispute the plaintiff's claim.

My question: Is there any hearing with the judge or trustee to review the claims between us and the plaintiff we can request? To restate, the plaintiff does not reference any real evidence (other than verbal) in his suit.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 2 years ago.
Hello,

Federal District Court actions subscribe to something called "notice pleadings." This means that the complaint need only put the defendant on notice that the plaintiff alleges that a wrong was done. The fact that the wrong may not hold up based upon the facts proved at trial, does not defeat the complaint.

The only way to defeat the complaint is to file a motion to dismiss based upon the failure of the plaintiff to state a claim for which relief may be granted. This means, that if you take everything (and I mean everything) that the plaintiff claims and assume it's true, then if it still does not amount to a breach of contract or fraud (which is what I'm betting that the plaintiff is alleging), then the court will dismiss the case. Otherwise, the court must permit the case to continue, so that the plaintiff can try to prove the case.

When you answer a complaint, your goal is to simply state for each paragraph of the complaint, whether or not you admit or deny the allegation stated. You do not explain why you are admitting or denying anything.

Then you add what are known as "affirmative defenses," if you have any. A list of affirmative defenses for a breach of contract can be found at this link.

A sample text for an answer to a federal court action can be found at this link, at page 124.

Note: If you answer with just a letter explaining yourself, you will lose this case. Don't make that mistake. If you can't do this like it's required by the court, then you need a lawyer, or you may be stuck with the debt after your bankruptcy is discharged.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


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socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 34138
Experience: Attorney and Real Estate Broker -- Retired (mostly)
socrateaser and other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
I started reading the link you sent to me called "Answering a Complaint" written by John Bridger. On page 13, the document refers to adequacy of service, we were never served and our bankruptcy attorney was not served either. We found the lawsuit online with Pacer when our attorney told us that his attorney planned to file. Our answer to the court is due on October 12.
Expert:  socrateaser replied 2 years ago.
Resisting service when you already have actual notice of the lawsuit is a waste of time in my opinion. You will only stall and then be served again. Defendants frequently think this is a way to escape a lawsuit, but the only time that it actually has any validity is where the cost of service is high, as with an foreign national defendant, or where the statute of limitation is about to run out, and by forcing the plaintiff to serve you again, the statute runs and then you can dismiss the entire lawsuit.

On a breach of contract claim in Texas, the statute of limitations is four years from the date of the breach. So, if you're right on the edge, then maybe moving to dismiss for ineffective service makes sense. Otherwise, it's probably a dead end.

Hope this helps.

NOTICE: My goal here is to educate others about the law. I am always available to answer your follow-up questions after you click Accept – however, if you do not click Accept, the website gets paid, and I receive nothing. This is true, even if you are on a subscription plan. So please click Accept, so that I will be able to continue to provide this service for others in the future.


And, if you need to contact me again, please put my user id on the title line of your question (“To Socrateaser”), and the system will send me an alert. Thanks!

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