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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26702
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Hello I am looking for for Kirk Adams... if he is there I have

Customer Question

Hello I am looking for for Kirk Adams... if he is there I have a question of great urgency for him to try and answer...
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Roger replied 1 year ago.

Hi - I'm here.

Customer: replied 1 year ago.

Hello Kirk..


Okay here I got the answer to the Debtor as ordered on Dec 6 end of the day and they received it...


 


I then sent the answer to the court and they got it on the 11th a.m.


 


the debtor was supposed to respond to me by the 11th with his reply to what i sent him on dec 6th


however, the debtor did not reply and so i called the court ...


 


the court is saying that they didn't get my response until 11th...and that i should have sent it at the same time i sent it to the debtor...But


 


they cannot advise me what to do about the debtor that he did not comply with the order to reply to me by the 11th...


 


I told the court that i understood the order this way:


...i was to send answer to debtor by 12/6th


...the debtor was supposed to reply by 12/11th


 


and at the same time to the court....


since first class and priority mail could not be guaranteed to get there by the 11th at the same time as the debtor filing etc... i sent it overnight next day !


 


I think I blew it,,,,I am so upset.... I did finish my


supplement and I am filing that with the court this morning in ca.... should I now fax it to the debtor and say i did not get his reply do on the 11th ???


 


or should I wait with the fax to the debtor and just have it filed with the court today...


 


the hearing is still set for Dec 13th and has not been vacated.... should I just bring an extra copy for the debtor?


 


I am scared the judge will just default me...even though i did send it to debtor on time as ordered>>>


 


 

Customer: replied 1 year ago.


kirk what is happening, who is answering my questions who are an attorney named fritz?

Expert:  Roger replied 1 year ago.
As long as you got a copy to the debtor on time, getting the document filed a few days later should no get your response kicked out. The debtor may file a motion to strike the response as being filed late, but if he can prove no prejudice for the late filing - especially if he got it on time.

Also, I wouldn't push the issue with his late filing to you as you'll really be in the same boat. If you're both late with filings, then it's not to either ones advantage to call out the other for being late.

You should fax a copy of your supplement to the debtor ASAP.

I can't say what the Judge will do, but being called on a technicality - like a filing being a day or so late - is not usual.

Customer: replied 1 year ago.


okay... i do have the transmission that i got from sending the fax to the attorney and i do have the delivery receipt to the court on the 11th...


 


I am just going to tell the court that the copy of the order i received from the court states to the debtor on dec 6th and to the creditor on dec 11th and at the same time...


 


sooo it is $1.00 a page to fax to the debtor and since i could not guarantee first class of over 2lbs of mailing and i could not guarantee priority of 2-3 days i spent $50.00 to send it ups overnight to guarantee a before 10:00 delivery time to the court...


 


it is just not right that the attorney picks things out of the garbage that he uses to tell his fabricated stories..


I have so many many documents where he contradicts himself in all the prior proceedings from and yet i still won the award and still got my judgment now he wants to blame the debt the corp and is asking for a fresh start and then he will live off of his corp hello!! doesn't the judge see thru this of him??


 


 

Expert:  Roger replied 1 year ago.

Like I said, there is certainly a possibility for the judge to make a big deal about the filings being later than scheduled, etc., but it is not likely. Also, you will have the right to challenge the allegations of the attorney and make your case that the attorney is not being honest, fabricating stories, etc.

Customer: replied 1 year ago.


Hello Kirk...


 


I got the supplemental paper filed with both the court and the debtor...


and took a 6 hr trip to CA to attend the hearing ...


 


the debtor never responded to me and the judge said he did not have to... that is not right he did not have to do the work follow the court order and he just ignored what was ordered and did not have to pay his staff or give me the advantage of reading his repeated lies... but he should have been reprimanded or at least heard the disatisfaction of the judge... he is an attorney and the favoritism and the lack of respect for the order should have been not okay with the judge...it is so very wrong!


 


My answer to his opposition was accepted not as to law, but to content, effort and make it known to the court what the underlying disputes are that lead up to the award and judgment against him... she changed my complaint agains the attorney/debtor from "Fraud" to non-dischargeable


under elements of 523 2 and 4??? I don't understand the difference???


 


Also she said that since the elements I brought to the RCBA were not yet adjudicated by the prior preceedings, she would allow me to have those issues relitigated....


 


THEN the attorney threw a tantrum and started whinning and started to insist that it is not fair and that I should be barred from the originally filing of the State Statutes of Limitations from 2008 and that it is too late for me to do that.... the judge disagreed and insisted that in Federal court it is okay and also in state court she believes it is okay also and said she is going to allow it.... he kept complaining and whinning and arguing over and over...finally the judge said she thought he was wrong but if he wanted to oppose her belief's she would then allow him to file a "summary Judgment" and then I could answer and then he could answer and if he won it would be over, but if I could respond and prevail, then she would set it for trial... I JUST cant believe this to let him do this...


 


She also said that only the attorney as an individual will be the issue before the court and not his corporation "aler-ego" status, as the corp is hot apart of the BK jurisdiction at this time...


 


O.M.G.!!! please give me your thoughts feedback??? THANK YOU!!

Expert:  Roger replied 1 year ago.
Hi -

It's very good news that the judge found that your debt is not dischargeable through the bankruptcy. That's really the best you can hope for. There are several non-dischargeable debts, and designating it away from fraud and to something else is something that the judge has the right to do if he/she believes the facts support it. Thus, I wouldn't get too caught up with that IF the debt was determined to be non-dischargeable.

As for allowing the attorney to file a motion for summary judgment, that is not unusual and it is actually probably the right thing for the judge to do. Also, the judge has already basically telegraphed that he/she is on your side, so you've got the leg up.

When he files his motion for summary judgment on this, you will have to respond and rebut the claims he makes about you not being able to proceed with this case. However, my thinking has been in line with what the judge ruled. You may recall that we discussed the fact that you should be able to proceed with any claims that weren't settled or ruled on by the panel; and that's what the judge has ordered too.

A summary judgment motion is a critical point in a case, and if you cannot find case law or legal arguments to rebut his motion, it is likely best to consult a local attorney about helping you respond in order to put a good legal argument together to give you the best chance to defeat the motion. But, the good news is that the judge appears to be on your side.
Customer: replied 1 year ago.


Thanks Kirk...I always appreciate your thoughts/constructive feedback...


 


However, I want to clarify that did not get the debt is not non-dischargeabe yet...


 


the judge just wanted me to know that she was accepting my adversary complaint based upon my answer, but she was amending it from "fraud" to 523 (2) and 523 (4) OR to seek relief as Non-dischargeable...


 


so I was confused...BUT you are saying that even though fraud is under the same elements as under 523(2) and 523(4)... I can restate my claims under other headings of those elements, away from the fraud??


 


I am trying to relate to what you are saying, that it appears that she is trying to work with me and "telegraph" the details of the issues she wants me to assert.... do you think she is just feeling sorry for me and the work I am doing to try and protect my interest...??


 


 


 


 


 


 

Expert:  Roger replied 1 year ago.

Ok. Thanks for the clarification. I'm sorry for the misunderstanding.

I think the judge just helped you frame your allegations because any claim for a debt not to be discharged must come under 11 USC 523. Section (2) deals with not discharging a debt that relates to false pretense, false representation, fraud and section (4) is also a fraud-based claim. Thus, I don't think she did anything to hurt your claim.

No, I don't think that the judge feels sorry for you. As institutional as it may sound, the judge would have thrown your case out to get it off of her docket if at all possible. She doesn't have feelings on the bench - - it's all about moving cases along and getting rid of those that shouldn't be there.

Thus, the court believes that your claim has merit, but you are going to have to get past the summary judgment and the claims the lawyer makes. But, it appears from what you posted that the judge is leaning in your favor.

Customer: replied 1 year ago.


Okay, kirk...thank you... is there anything I can do to file anything like an examination of the debtor before the summary judgment is filed? can I file a 2004 debtor's exam motion...


 


can I file a motion with Superior Court to have the RCBA and the Court amend the award with the Corp name/


 


can I file a small claims against the corp or do i need a judgment or award that the court owes me the money first?


 

Expert:  Roger replied 1 year ago.

You can't file any claims outside of the bankruptcy proceeding because the automatic stay (11 USC 362) from the bankruptcy court prevents you from proceeding against the creditor.

However, nothing prevents you from pursuing the corporation.

Yes, you can file a 2004 examination of the debtor, which is basically a deposition in the bankruptcy.

Customer: replied 1 year ago.

,,,,so I can file for a Debtor's exam...but will he protest my motion as not relevant to anything since the judge ordered the "summary judgment" and it will depend on whether or not the summary judgment is in my favor...


if I win It goes to trial and if I lose it is over.... do I wait to see if I win the April 4 hearing or can I do an exam now...?


 


do I need a judgment against the corp or can I go into small claims at this point I have no order that says the corp owes me??


 


with the debtor;s exam what am I looking for... the judge is not accepting any discovery against the corp only the individual attorney... so am I looking for the commingly of the attorney or what??


 


 

Expert:  Roger replied 1 year ago.

Yes, you're a creditor so you can notice the exam, and you would actually need to try to do it before he files his motion for summary judgment as you can use the testimony he provides to combat his motion.

The exam is a deposition, and you would be looking for anything to support the claims that you have made against the debtor/lawyer. It's likely that he'll try to put things off on the corp., but you'll have to hold the line that he's the lawyer and he's the one making the calls.

Like you said, if you lose, it's over, so you need to pull out all the stops now. If you wait and lose, you're done.

As for the corp., you'd just have to file a claim in small claims court and try to obtain a judgment against it for the amount at issue.

Customer: replied 1 year ago.


Can I do a "debtor's exam on my own, or do I need a lawyer and do I get a reporter to log the depo or do I do this i court or where?


 


okay, so I have written admissions on his part and written statements of his to support my small claims actions etc.... but how do i go to small


claims without something that says that he owes me... can I use the


award and the judgment against him and then provide the small claims court with the supporting documents that says he acknowledges that


there is a debt but it is his corp's debt...


 


he will then likely in small claims state that he has a pending BK and that I am currently in an adversar hearing and that he is discharging the debt.


 


what about the Motion with the RCBA to compel then to add the Corp name to the Award?

Expert:  Roger replied 1 year ago.
You can do it on your own, but it's not an easy task - - especially when the deponent is a lawyer!! It'd really be best if you think about hiring an attorney. You'd have to get a court reporter and you could schedule the deposition at the debtor's office, at the court reporter's office, at the courthouse, etc.

You're probably better off to ask the arbitration panel to amend your award to include the corp rather than filing a new claim in small claims court. Especially if this was a result of an error as we discussed a few days ago.

If you want to sue the corp., you don't have to have an order against them to file. You can claim that it is liable based on the facts - - you don't need the arbitration award to sue in small claims court.
Customer: replied 1 year ago.


...unfortunately the result of my request to the RCBA was denied based upon the fact that the State Bar really cannot tell the RCBA to do or not do something as they have limited jurisdiction over the RCBA... ALSO


the State Bar said there is no "Procedure" in place by which to add the name of the Corp to an already determined award, and they only due orders to pay against the attorney for fees damages... so i was told to either get an attorney or file a motion to get them to do it???


 


Kirk do you know what the statute of limitations ...that is what the attorney is doing the Summary Judgment primarily on... he thinks I am barred from the State since the original filing was in 2008 and even though the judge says she has thinks he is not correct with regard to Federal court limitations?? He is trying to say my time has run out to bring up anything at this point?

Expert:  Roger replied 1 year ago.
The statute of limitations for fraud in California is 3 years, but it only begins when you knew or should have known that the fraud was committed against you.
Customer: replied 1 year ago.

so the attorney is saying that I am not allowed to bring up issues under the elements of 523..... because I am
barred under state statutes from my RCBA disputes that started in 2008...


 


The BK Federal law judge said he was mistaken under Federal rules etc and that I can reopen issues litigate the elements under 523... and that Federal Jurisdiction can override State Courts and State Limitations etc and therefore she will allow me to bring my complaint to BK court under those elements... however, not under Fraud but under %23(a)(2) and 523(a)(4)... for non-dischargeable under those elements...Not Fraud>>.??


 


soo I am confused...


 


 

Expert:  Roger replied 1 year ago.
I think the bankruptcy judge is looking at it from the perspective that the arbitrator didn't consider fraud or award damages for such. Had the arbitration panel determined liability based on fraud, that would be a different issue.
Expert:  Roger replied 1 year ago.
Hi

Please let me know if you have any additional questions related to this issue. Also, please positively rate our conversation so that I may receive credit for my research and response.

Thanks,

Kirk

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