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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26422
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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Hello, I had filed for bankruptcy in Dec,2011. There was

Customer Question

Hello,
I had filed for bankruptcy in Dec,2011.
There was an ongoing litigation in a civil matter at that time, The attorney for the plaintiff filed for an adversary asking the lawsuit be relieved of any judgement that may be granted. I represented myself and responded to the adversary with a General Denial to most of the items listed in there. I got an order for scheduling a pre-trial conference just the day I left US for a 45day trip related to new job. My question is:
1.How can I request to postpone that date about 30days ahead as I wont be in the country till end of May?
2.What essentially is a pre-trial conference and what happens there?
3.Will I need an attorney in the PTC?
Pls answer in details.
Thank you in advance for your time.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 2 years ago.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney here to assist you.1. In order to postpone the pre-trial conference, you must file a motion to continue the hearing with the court. There are no forms for this, so you'll have to draft something yourself. However, it is not complicated. All you need to do is title the document "motion to continue pre-trial conference" and state in the document that you are going to be out of the country and ask the court to re-schedule it to be held after the date you'll be back. You'll have to file the motion with the court and send a copy to the trustee and the attorney who filed the adversary. If you plan to hire an attorney, you could go ahead and do so and have him/her handle this motion to continue. Usually, these motions are granted by the court unless something has been continued many times. I'll provide the responses to the other 2 questions momentarily.
Customer: replied 2 years ago.
Thank you Kirk. That info is very helpful. Awaiting the rest of the answer
Expert:  Roger replied 2 years ago.
2. A Pre-trial conference for an adversary proceeding in bankruptcy is governed by Federal Rule of Civil Procedure 16: http://www.law.cornell.edu/rules/frcp/rule_16

Basically, the pre-trial conference is where the parties set deadlines for all things related to the litigation of the case - discovery deadlines, motion deadlines, deadlines to join parties, settlement conferences, and finally the trial date. Thus, you really don't get into the substance of the case. Instead, you just set a scheduling order which you'll follow to keep the case moving toward a trial date.

3. There's no requirement to have an attorney at the conference, and because the matters discussed are merely procedural, there's no need to have an attorney there UNLESS you have hired an attorney before the conference. In that case, he/she would need to be there.

Customer: replied 2 years ago.
Two quick follow up Q's:
1.Will I be asked any questions here in the bankruptcy court during the Pre-Trial Conf?
2.If this is just to set and schedule dates, does the adversary also follow the same path like a civil lawsuit?
Thank you.
Expert:  Roger replied 2 years ago.
1. Generally, the facts of the case are not discussed in a pre-trial conference. Usually, the only questions asked pertain to deadlines that the court wants to set.

2. Yes. An adversary proceeding is a civil lawsuit; it just happens to be in bankruptcy court because a party to the action is in bankruptcy. The process followed is the same. In fact, Bankruptcy Rule 7016 says that an adversary proceeding follows the same pre-trial track and procedure as a regular federal civil suit, and directs that Federal Rule of Civil Procedure 16 be used to set the pre-trial conference. If you look at the bankruptcy rules, all of the procedural rules that deal with litigation defer to the federal rules.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26422
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 4 other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you for all that info Kirk, They were helpful in my planning the next step.
I am proceeding with the payment now.
How do you advise can I choose the right bankruptcy attorney to represent me in
this matter, Most of the ones I talked to seem to be only interested in filling the case (bankruptcy)
and following the standard steps.
Would a civil attorney be qualified to represent me when needed?
Expert:  Roger replied 2 years ago.
Most bankruptcy attorneys want to take simple cases with flat fees - they don't want to dive into a civil adversary case.

Yes, you're likely best served by hiring an attorney with a civil litigation practice who does some bankruptcy work.
Customer: replied 2 years ago.
I will have some more questions for you this week.
Thanks
Expert:  Roger replied 2 years ago.
Just let me know. Thanks.
Customer: replied 2 years ago.
Hello Kirk,
Thank you for following up. I have been travelling for a while, So I had requested for the adversary processing to be moved forward. The judge had granted it on account of a motion of continue the PTC.
Since at this moment I havent signed an attorney and I want to handle this myself till where I can, I have some questions in relation to the next set of events that have followed.

The plaintiff's attorney had served me in my absence and via email a notice for taking VIDEO deposition, Notice of serving interrogatories and a Request for production as well. He has scheduled all these to be on a date before the PTC has been rescheduled. At this point, I need to understand what they CAN DO, what THEY CANNOT DO, and what I dont have to DO.

1.As for the deposition, Do I have to attend it? How can I have the Bankruptcy judge get me any relief from this as these are the same tactics they were pursuing in the civil litigation that has prompted me to file for bankruptcy.

2.They demands for production exceed what I can and wish to provide, how do I answer/defend that?

3.Their request for interrogatories is similar as they had asked during the civil litigation, How can I avoid/defend responding to the same?

4.Do they have the right to pursue the same Notices (Depo,Interrogatories & Production) as they would have in the normal civil litigation at a stage where the case is up for a pretrial?

5.How can I request the judge to take a hearing on this sooner?

6.How can I dismiss their demands?

7.How can I postpone what they are asking to get suitable time to find an attorney (if needed)

In a nutshell I would like the judge to throw away the frivolous adversary that has been filed
solely to feed the counsel's ego and also trying to scrape the last dime off my pocket.
Pls advise a way to accomplish this.
Thank You.


Pls advise
Expert:  Roger replied 2 years ago.

Hi -

 

I'll try to respond to each question:

 

1.As for the deposition, Do I have to attend it? How can I have the Bankruptcy judge get me any relief from this as these are the same tactics they were pursuing in the civil litigation that has prompted me to file for bankruptcy.

 

Yes, you must attend the deposition. The opposing party has a right to take your deposition as part of the discovery process. The judge is not going to prohibit this from occurring. They can ask you about anything that is relevant to the litigation. If a question concerns some irrelevant topic or issue, you can object and refuse to answer. If you can't agree on what is relevant and is not relevant, the judge can be called to decide the issues.

2.They demands for production exceed what I can and wish to provide, how do I answer/defend that?

 

You can object to any request for production as being overly broad, unduly burdensome, irrelevant and not calculated to lead to any discoverable evidence. However, any relevant documents related to the litigation must be produced. If you can't agree, or if you can't resolve the objections, the other party will file a motion to compel discovery, state their case (and you will be allowed to respond to the claims) and the judge will decide what you must produce.


3.Their request for interrogatories is similar as they had asked during the civil litigation, How can I avoid/defend responding to the same?

 

You do this the same way as with the requests for production. You can object on the grounds of that the interrogatory is overly broad, unduly burdensome, irrelevant and not calculated to lead to any discoverable evidence. However, any relevant question must be answered, and if you can't agree, that would also be the subject of a motion to compel.


4.Do they have the right to pursue the same Notices (Depo,Interrogatories & Production) as they would have in the normal civil litigation at a stage where the case is up for a pretrial?

 

Yes.


5.How can I request the judge to take a hearing on this sooner?


You can file a motion for an expedited hearing with the court and then ask the court to set the matter asap.


6.How can I dismiss their demands?

 

In order to do this, you would have to file a motion to dismiss and prove that there is no claim stated upon which relief can be granted, and that the claims should be dismissed. A motion to dismiss is very difficult unless you can prove that there are no grounds, facts or circumstances that gives the other party a viable claim against you.

7.How can I postpone what they are asking to get suitable time to find an attorney (if needed)


You can file a motion for additional time to respond to the discovery propounded. You can usually get an extra 30 days or so without much trouble.

Customer: replied 2 years ago.
Hello Kirk,
Your answers are quite detailed and also up to the point. Thank you.
Now in continuation of Q #5:
5.How can I request the judge to take a hearing on this sooner?
You can file a motion for an expedited hearing with the court and then
ask the court to set the matter asap.
----
If I file a motion for expedited hearing:
1.What can be the basis for that?
2.Can I file it myself?
3.Can I request more time for deposition and production as well as discovery and meanwhile
hope the judge will bring the case for hearing soon and take a decision?
4.Or will the Opp Counsel stall the early hearing?
5.can the judge grant early hearing if the opp. counsels demands for depo,prod and disc are pending?
If you see what i am trying to accomplish, i am afraid that the Opp counsel would trick me and
get me into trouble as the matter he has accused me of also has a criminal ramification. My previous
attorney had advised me to use the fifth amendment at all those places but can I use it now when I
replied to their adversary complaint with a 'general denial'?
6.How can I request the case to be tried asap? I am really really pressured at this time.

Pls advise.
Thanks
Expert:  Roger replied 2 years ago.
Hi -

If I file a motion for expedited hearing:

1.What can be the basis for that?

The basis can be that an expedited determination of this matter is imperative to prevent irreparable harm to you and your bankruptcy case.

2.Can I file it myself?

Yes. However, I would recommend an attorney for this.

3.Can I request more time for deposition and production as well as discovery and meanwhile
hope the judge will bring the case for hearing soon and take a decision?

Yes, you can file a motion to for additional time to respond to the discovery that is currently outstanding. Also, you can ask that the discovery deadline be extended, which would buy some additional time.

4.Or will the Opp Counsel stall the early hearing?

I can't say what the other attorney may do. He may or may not want to stall the hearing based on the urgency his client feels to get this accomplished.

5.can the judge grant early hearing if the opp. counsels demands for depo,prod and disc are pending?

Yes, the judge can grant the hearing before the discovery or deposition is completed. However, the judge could order those things to occur before a hearing as we'll. It really just depends on what the judge decides.

6.How can I request the case to be tried asap? I am really really pressured at this time.

The only thing you can do to get this heard asap is to file a motion for an expedited hearing.

As for pleading the fifth amendment, you can do it anything your testimony would result in you incriminating yourself of a crime.
Customer: replied 2 years ago.
I will have tow more questions related to these chain of replies. Will get back to you by tomorrow.
Thank You.
Expert:  Roger replied 2 years ago.
Just let me know. Thanks.
Customer: replied 2 years ago.
Morning Kirk,

So few follow up Q's

1. Does an email delivery of the Notice of Interrogatories and Production equal to properly served? The notice of deposition was served in my absence (i was out of country) and I only recieved it yesterday. So when does the clock technically start ticking on the documents?

2.Who would best be skilled to handle this matter in bankruptcy court? - A civil attorney or a bankruptcy attorney? The BK attorneys that I have spoken to so far are only interested in filling of banruptcies and didnt show much interest in the adversary. Will a civil attorney be good enough to handle the responses etc? What certain set of experience should I look for when searching for the attorney?

Pls advise.

Thank you
Expert:  Roger replied 2 years ago.
1. With bankruptcy courts using an electronic filing system (CM/ECF), practically everything is done electronically - including discovery (interrogatories, etc.). However, a notice of service also has to be filed file the court electronically and sent to the opposing party as well. That said, you need to look at the notice of service as the time begins ticking from the date of the notice of service.

2. Generally, a civil litigation attorney certainly should be able to handle this type of case. It would be great to find an attorney that has some bankruptcy experience. You can search for an attorney in your area at www.martindale.com.
Customer: replied 2 years ago.
Hello Kirk,
Following up with the events as previously discussed above, The plaintiff attorney has scheduled a deposition for the following Monday and has arranged for a video deposition. My questions on that matter are:
1.Can I object to being on video as the attorney has in the past been very quick on giving information to media and I suspect his intention is to get publicity for him and humiliate me for that matter.
2.If I cant object, what can I file (i researched a 'protective order') with the judge/court, how soon can it be answered and how can I be granted of the protective order?-Pls explain in detail the process of filling and follow up.
3.I had asked my attorney to postpone the depos twice in the past, and he (plaintiff)went to court and got a Motion to compel. Now If all this doesnt fall in place before the depo date, Can my attorney ask it to be postponed again?

Pls advise.

Thank you
Expert:  Roger replied 2 years ago.
1. You can't object to taking a video deposition. However, you can file a motion and ask the judge to order that the deposition not be disseminated to the public during the ongoing litigation.

2. Yes, you can file a motion for protective order and ask that the use of the deposition be restricted to the litigation - no dissemination to the public.

3. Yes, he can ask to postpone the depo until the motion is heard.
Customer: replied 2 years ago.
Thank you Kirk,
1.How long does that motion take to be answered/heard?
2.Will this motion legally bind the attorney and the person taking the video deposition to not disseminate? Can they still dessiminate stating ignorance?
3.The plaintiff attorny is very hard to convince for depo postponing, and the judge had extended the date of Motion to compel to Aug17, so Can I still ask for a postponement?
Expert:  Roger replied 2 years ago.
1. If the motion is expedited, it could be heard within a few days. Without a request for an expedited hearing, it could take 30 days or more.

2. Yes. If the court orders the deposition not to disseminated, all parties will have to abide by the order.

2. Yes, you can still ask for a postponement.
Customer: replied 2 years ago.
Hello Kirk,
So the opposing counsel is not agreeing to confidentiality and My attorney says its not in the scope to ask for a protective order. I havent been able to get hold opf my attorney but If I have to go to court and file a Emergency Motion, What kind of document with it be, what can it be titles and what does it have to say?
Expert:  Roger replied 2 years ago.
It would be a motion for protective order, and it would have to allege that the dissemination of your deposition to the public/media before the trial of the case would highly prejudice your case and also taint the potential jurors as they may see the deposition and pre-judge the case. If you can't get a fair jury, the process doesn't work.
Customer: replied 2 years ago.
I called the Judge's office and the assistant informed me that I will need a certificate of necessity that will need to be accompanied along with the Emergency Motion. Can you suggest what that document is and where can I look for it?
Thank You
Customer: replied 2 years ago.
Thank You. And What should I write here in the legal terms as the need for the necessity? Can I write it in simple language that the attorney has been continuously maligning my reputation in the media and gives out all documents and pictures to press weaving a story of their client as a victim and me as a bad person.
Customer: replied 2 years ago.
Also Is there a sample document for the Emergency Motion for Protective order template?
Expert:  Roger replied 2 years ago.

Yes, it can be a simple statement, but it should be more about preserving the integrity of the case, keeping the jury from being prejudiced or tainted by the media attention, pre-judging the case, etc.

 

I can't find any forms for this online. There is not likely a form. Instead, you would just have to make it up or have your attorney assist you with it.

Customer: replied 2 years ago.
I was informed If i cant make it to the deposition,the opposing counsel could file for sanctions, However I didnt understand very well, what sanctions could mean. Can you pls explain in detail? Thank You
Expert:  Roger replied 2 years ago.
Sanctions usually means a fine/monetary punishment, which could include the payment of the other party's attorneys fees, court reporter's fees, etc.
Customer: replied 2 years ago.
I havent been able to get hold of my attorney for past two days. Kirk Can you pls check if this language makes sense? I will be headed to file this with the court office in next few mins.


CERTIFICATION OF NECESSITY OF REQUEST FOR EMERGENCY HEARING.


I , the defendant, hereby certify that I have a true necessity for an emergency motion, that the matter under consideration is not interposed for any improper purpose, such as to harass, to cause delay, or to increase the cost of litigation, and there is just cause to request a consideration of the following pleading on an emergency basis:





Emergency Hearing on Motion for Protective Order


 


The Plaintiff’s have refused to keep confidential the VIDEO DEPOSITION and may possibly disseminate that to the public and media before the trial of the case, as they have done four times in the past by calling media and giving interviews with allegations and this would highly prejudice the case. It can also possibly taint the potential jurors and they may pre-judge the case. Since the deposition is scheduled for Monday, August 13,2012, and since the Plaintiff’s have refused to keeping this confidential and only for use in litigation, there is a need for an emergency hearing on this motion.


I CERTIFY FURTHER that the necessity of this emergency hearing has not been caused by a lack of due diligence on my part, but has been brought about only by circumstances beyond my control or that of my attorney.

Expert:  Roger replied 2 years ago.
Sorry about your delay - I just saw the post. However, we're not allowed to review legal documents for accuracy as it is against the terms of service.

Thus, all I can do is refer you to the forms provided by the court. Sorry for any inconvenience.

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