Bankruptcy Law Questions? Ask a Bankruptcy Lawyer.
Hi - thanks for looking me up.
Your previous questions should be accessable from your account.
Okay, good...so I filed the continuance, went before the judge, got granted time to answer and today I must fax to the defendant that answer on or before 4:00 CA time,,,I am in AZ.
I was told by the judge to make sure I answer based upon my ad proc complaint which is Award and Judgment used as exhibits to support my claim for fraud and not as facts to support my claim but that this judgment stems from the legal representation of this attorney and his alter-ego law firm.... the Arb Panel will not amend my Award as there are no procedural rules to do that? sooo I need to find a way to file a motion to request that they amend the Award to show his corp name as was my original application... they said they are a forum for attorney fee disputes and cannot hold a hearing or determine for companies corp's etc.... I am so overwhelmed and frustrated... but today I have to make sure I fax my answer and get past this claim for dismissal of my complaint...can you help me with some language etc?
kirk adams...R U There?
I am here.
I can't provide specific information, but I can try to give you some information if you need it.
where is the information from the expert?
Hi - -
I'm sorry, but my internet connection has been going in and out.
I think I'm ok now.
thank you... did you get my question?
I didn't see a particular question - - only that you were working on your response to the motion to dismiss the adv. proceeding.
In order to defeat a motion to dismiss, the main criterion is whether the pleading states a cause of action. In other words, if the complaint's factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss should fail.
I see, okay, yes I am working on my response that must be faxed today to the defendant, he is using that my Exhibits of the award and judgment do not specifically state fraud...but I am saying the documents "speak for themselves"...as he is held for improprietary actions and the retainer agreement was void etc... I am have documents to provide facts that he took every penny of my support without telling me and is claiming i gave him permission and agreed to just give up the money to him...he was ordered to pay me direct in my name and only thru his office...but he got the check in his name cashed it and spent it and i found out after the fact...he then substituted out... however, the forum scope of arb hearing was only atty fees and costs disputes..so they awarded me the money as damages under fees and costs ... the atty is saying that since he was awarded sheer money for labor and efforts and the corp which was not named received money... i am claiming the difference between the two amounts and that is too bad he is not responsible for that and i dont have a right to have his debt discharged...
If the arbitration panel is only set up to resolve fee disputes, then that's what you need to tell the court, and note that the documents from those proceediings do not deal with anything other than the fee issue. The fact that the arbitration panel only dealt with the fee issue means that no adjudication or proceedings have been held concerning the fraud you allege. You can inform the court that your claims in the adversary complaint are separate from those determined by the arbitration board, and that you should be allowed to pursue your claims as stated with this court.
You will need to provide any evidence and information that you have to prove to the judge that your claim in the adv. proceeding is viable, and that you will be able to support your claims with evidence - - including what you attach to the response.
I see, so then what do I state as my reason to use my Exhibits attached to the adversary complaint... i have told the court that that was only to illustrate that I have grounds to make a claim and collect on my judgment and request the court not to discharge the debt?
It proves that the panel didn't hear, consider or make a finding as to your claim of fraud. The documents should show that the panel only heard and determined the issue of attorney's fees.
Thus, you can claim that your current case is a cause of action for fraud, and for a judgment based on fraud.
...Kirk, do i need to fax the defendant all of the supporting documents with my answer and also the court, or can i bring them to the hearing ?
Yes, you would need to include your exhibits with your response AND bring them with you to court as well.
also, please how do i address that he is just a debtor who deserves a fresh start and that it is his law firm that really owes the money and that i hired....he keeps saying he is innocent of the debt and was awarded his "reasonable and sheer" fees as an attorney and the money i am after is the difference between the law firms billing and his awarded fees?
The attorney is the one that is practicing law - - not the company - - and the attorney is ultimately responsible for his actions or the actions of his company, secretary, etc.
I understand his point, BUT the attorney charged you the full fee - - his cut of the fee really isn't the point.
so if he keeps passing the buck to his aka alter-ego corp... i can submit docs that I have that shows he wears one set of pants with his hands in both pockets? also he uses the corp staff and money to file his fees and represent himself? oh my gosh... I hope i can get this done in time today... i am not sure I can cite cases on all of this stuff?
Well, he's the attorney, so he's responsible for what he does - - not the company. The company cannot practice law and he shouldn't be able to hide behind the company
okay...kirk i am going to try and get this done the best i can...can i chat with you later and will the information i provide be discounted if not based upon the citing of cases to support it and make it different than opinion on my part and not fact by case precedent?
Sure, I'll be here all day, and the question will remain open.
The court will not discount your brief on the lack of case law IF the issue is well settled.
thank you.... so very very much ... you are a great "Obi Won" for me!
However, if you make legal claims that aren't well settled and need some case law, it may cut against you, BUT the judge will usually request post-hearing briefs on a point that may not be very clear to the court based on the arguments and briefs presented.
Glad to help. It is tough to give specific guidance without seeing the documents, reading the content, etc., but I hope this puts you on the right track to find information and make arguments that you need to respond.
okay...this is huge...thank you..
...is there ever a way that you can view docs or information...or is this forum just for the purpose we have shared so far?
Unfortunately, no - - we can't review legal documents and provide "legal advice", which is what my comment at the beginning was about. All we can do is provide information relevant to your legal situation. The main reason is that there's no attorney/client relationship and no attorney/client privilege since we're not meeting face to face.
okay i totally understand and this has been really fine... talk to you later...thank you.
Glad to help. If you need anything else, just post it in the Q&A to avoid another fee.
Hi...I am looking for Kirk Adams...however its Sunday and I don't know if he is available today...if so I would appreciate being able to ask him a questions as I have been working with him...Thank You
Hi Kirk I am so very sorry to bother you on a Sunday, but thank you for responding to me...do you recall our chat on Thursday, regarding the Adversary complaint response I was ordered to fax to the attorney who is trying to dismiss my action for failure to state a claim that relief can be granted.... etc.....
Anyway I did the best I could with the time and knowledge I have...I stated my claim that the Arb award and the judgment were attached to my complaint only as proof that the elements of my complaint have not yet been adjudicated etc and therefore my claim under sections 523 etc have not been heard, only the issues of the attorney's impropriety and fee disputes have been and therefore they award was a lump sum award based upon the only way the arbp panel could make a right a wrong and granted me a refund and/or damages in the amount of the award....
Anyway...after all of this I have just said...I am concerned that I did not elaborate enough under the elements of 523 and ran out of time to really get into major detail dates, times, things said and done etc under these elements...although I did submit a lot of documented support....what can I do about this???
I have not sent anything to the court yet...the Debtor Attorney is supposed to respond by fax to me by
Dec 11 ...I am planning on overnighting my docs to the court on Monday ??
Hi - yes I remember our conversation from earlier in the week. Thanks for looking me back up.
First, you need to get the original response filed with the court. Then, you can file a supplement to the response you filed. You can simply file a document entitled "supplemental response to debtor's motion to dismiss". You can then elaborate on the issues you weren't able to get to in your initial response.
You need to get this done as soon as you can the debtor can't claim that he didn't have time to respond.
...the hearing is scheduled for this Thursday 12/13...can I file the orginal with the court...? The attorney is suppose to fax me his answer to my answer on Dec 11th... should I wait for his answer and then file my supplemental response or do i have to wait and ask the judge if i can? OR can I do my supplemental to my answer ...send the attorney one and file both with the court at the same time?
Also, Kirk do I have to be that elaborate in the content of my answer or can I elaborate with the docs I support with my answer to show what he did etc ?
...okay i know you are stating in simple terms for me to understand but I think I am overwhelmed right now and so it is not sinking in....
...if i file my supplemenal now, before I receive his reply on dec 11th for the court hearing of dec 13...you are saying that is okay and not in violation of the order to give the debtor my response on dec 6...you are saying that by realizing that I need to submit more detailed facts after the fact that I already sent my answer to the debtor, that will be okay with the court and I should do my supplemental now and amend, fix, and add anything that I left off in the Original answer and put that in a separate answer...and i can get that to the court at the same time overnight on monday...before I even get the debtor reply....is that right?
...my order to respond to the debtor was dec 6 and i did that...I am filing monday via overnight mail my original response to the court .... the debtor must file to me by dec 11 and the hearing is dec 13...okay...i understand.
now...please tell me if the supplemental I am going to file with the court and before I receive the debtor reply as ordered by dec 11.... please tell me if I need to do it like the original answer i am filing...stating all of the causes and stating the claims of the debtor and stating all of my claims again establishing what is in my original OR Please send me a sample of how I would begin my "supplemental reply"...
Please...Kirk I know I am full of drama here, and thank you for being patient with me.... but please tell me if I can state an element of fraud and give the court some explanation of what he did but support it with the documents attached in order to fully explain without every detail in the answer.
can i use the answer of the original and just add to the caption...then add where i left off on the original...plus can i also fix and add within the orginal body of the original and modify with additional info and case law and detial ...add to the original as long as i note on the caption that it is a supplemental to the answer and then it to both the debtor and court?
i guess I wont be able to understand this procedure...I am at a loss...i have worked so hard, but hitting a wall on this....
I understand what you mean by supplement, and i understand what you mean by adding more detail to the detail already sent on the original...
I hit a wall when you say to add to the content already filed... I keep thinking that I can take the original already filed.... using that original already filed and changing the caption to read supplemental etc... and then in the body change, alter, add etc the new information and submit that as my supplement to amend my answers....
what that said i would use the original and add to it to create a supplemental answer
I dont want to amend the original but I do want to make more points and supplement.... Kirk i am just asking if I can use the original format etc get rid of the body of the original but leave the point numbers and headings and fill in the new, added and supplemental information//and of course change the caption read supplemental information///
also, if i amend the original with some changes that does not really alter the content extent to clarify and make it read better will the court throw it out if it does not make exactly what i sent the debtor....
like i noticed some mispelled words in my haste to get it sent to the debtor... i noticed i said does when i meant to say does not... can i change that from what i sent the debtor or does it have to be exact even with spelled words etc wrong?
...okay so I would just reference that same content and when making that same point i would correct those items... can I reiterate points I have in my original answer and just expand on them, and give more detail and add more documented support... then do I send this to the Debtor attorney also?
...so I need to file this first before I get it to the court?
oh that's not what I understood before...I thought you had mentioned that I could send this to the court before I got the debtor's response and then send the original to the court and then the supplemental etc...
so then I would need a proof of service and a cover sheet and then an oder for the judge to allow it?
So then this would be like a motion to amend asking the judge to allow it? Or how is it different and what
is the procedure of the Supplement answer.
The hearing is the 13th of this month?
thank you kirk, i do understand what you mean by file... but with the response and with the supplement filing...(not an amended answer) do i need a proof of service and do I need a cover sheet to the court in order to filethese documents?
What do I need to File with the Court the Answer and the Supplemental answer?