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Hi, I'd like to assist you with your bankruptcy questions this afternoon.
It sounds like the Answer should have been filed with the court on or before December 6. However, since you did fax the Answer to the Debtor by the deadline, you should bring a copy of the fax receipt with you to the court hearing on December 13 so you can show the judge that you substantially complied with the court's order.
You can simply explain to the judge that the Answer wasn't filed with the court by December 6th due to your excusable neglect (i.e. you're trying to handle a bankruptcy case by yourself as a pro se creditor and aren't aware of all of the procedures, etc.)
But you did, in fact, timely submit a copy to the Debtor, so you substantially complied with the court's order.
Since the Debtor hasn't filed a response, the most likely outcome at the hearing is that this will be continued until next month.
There's a small chance that the judge would rule against you, as you technically didn't file your Answer by the deadline, but it would surprise me if this actually happens due to the fact that you're pro se, substantially complied with the court order, and provided a legitimate explanation for your excusable neglect (i.e. you can't e-file since you're not an attorney and failed to realize that mailing in your Answer would result in such a delay).
If the judge really seems inclined to rule against you, request a continuance so you can hire an attorney.
I've found this to be an effective strategy in bankruptcy court when you're about to lose on a Motion.
Please let me know if you have any additional questions. Thanks!
yes...i would like to ask...so the attorney gets my answer on time....he doesn't know that the court didn't get my filing and so he just decides he doesn't have to answer and now i did what I was supposed to do and i may be dismissed... this attorney is just abusing and he does this all of the time.... he doen't file timely and he doesn't state facts just throws what's in the garbage can whatever stinks the best..
that's not right... regardless of what i did not file with the court...he got his answer on time and should have been followed the order himself anyway!
Should I file a default or should I file a letter witht he court or anything?
My understanding is that the Debtor/Debtor's attorney generally wouldn't be required to file a Reply by December 11, as the Debtor's attorney should be able to appear at the hearing and argue the Motion orally without filing a Reply. Your Local Rules and/or the specific Order from your Judge may state otherwise, but that's generally allowed in Bankruptcy Court.
You should ask a local attorney to double-check whether you need to file anything pursuant to your Local Rules, but you could generally just show up and explain everything to the judge at the hearing. Don't try to cast blame on the Debtor/Debtor's attorney at the hearing; simply stick to the facts, and you should be fine.
Hypothetically, if the Judge does rule against you, you would hire an attorney, contest the ruling, and a lot of time and money would end up being wasted on all sides over a hypertechnical procedural issue. Judges are aware of all of this and will generally cut you some slack.
okay so I am the creditor and the debtor is an attorney who has owed me $10,000 based on a findings and award and also based upon the judgement entered over a year ago... he is now filing bk to "free himself"... right... but he is using his corp to hide behind and he claims the corp owes the debt not him... he is aka his law firm and aka alter ego with his law firm... he skates the issues and deliberately tells fabricated stories... i filed an adversary complaint under the elements of 523 and the court accepted it then the attorney/debtor asked for it to be dismissed and then i responsed asking for it not to be dismissed
the judge ordered me to state the reasons why not and respond based upon the complaint i filed...and then asked the debtor/attorney to reply by the 11th ... and the rest is history...
ALSO...i filed a supplement to my answer with the court this a.m. ....should i get the attorney a copy despite the fact that he did not comply with the order of the court.... or should i just give it to him tomorrow in the hearing?
Fax the Debtor the Supplement ASAP so he has a chance to look it over before the hearing; otherwise the hearing will almost certainly be continued, and you may not be able to make your substantive arguments in front of the judge at tomorrow's hearing (the judge would likely continue the hearing to next month and move on to the next case - not the worst thing in the world, but it sounds like you'd prefer that the issue be heard tomorrow, while your legal arguments are still fresh in your head).
it just does not seem to be 'right'... he gets to see my answers etc and i get nothing from him,,,
if it does get continued... to i have another chance as well to respond and present more details and support of my claim...
"it just does not seem to be 'right'... he gets to see my answers etc and i get nothing from him,,,"
A: But the benefit is that the judge has the opportunity to read what you filed before the hearing, so he or she will have your view of the facts in the back of his or her mind when the hearing begins.
"if it does get continued... to i have another chance as well to respond and present more details and support of my claim..."
A: Yes. You would most likely want to schedule a Rule 2004 Examination of the Debtor (the bankruptcy equivalent of a deposition) at some point in the near future, as Debtors tend to slip up and make at least a couple of damaging admissions in these types of cases (i.e. "I took out the loan... I mean my corporation took out the loan," that sort of thing).
okay thank you i understand... i tried to assert type of things in my supplement to my initial answer that i filed today... but i have provided so many documents to the court to show that he flip-flop all over the place, do not give facts and that i have provided proof to his allegations that he thinks i cant...but the case is so overlapping and he is an attorney and starts rambling on about irrelevant details and things that don't matter and throws issues off track and presents me as just a dissatified client .... he took $21,000 of supposal support from me and if the retainer agreement states that that was he is claiming.... but i have documents that show he did not tell me before he took it spent it and charged me when i called to find out about if it had come in yet in my name only thru he office as court ordered... it came in his corp name and he took all of it... i was devistated and emotional and financial beyond duress...i have the documents to show proof but the state bar could not do anything within there jurisdiction and the RCBA awarded me $10,000 as refund etc he is contesting he does not owe the money he corp does, but he did not object ever during the five years i am been pursuing him ...he did not ever send in writing a non-responsibility notice to point the finger to his corp instead...
Hi Fritz...sorry about not rating you at the moment.... in the midst of my unending choas and trying to get the paperwork out to the court and the debtor ASAP and a 6 hr trip to CA to attend the hearing ....I was literally out of my mind...!!!
...sooo I got the court filed and the supplemental docs to the debtor ASAP and attended the hearing...
now with my question.... "BotXXXXX XXXXXne" the judge (whom I understand is a very good and fair one).... did not require the debtor to have to file his response to me...not right and not an advantage to me....however, I guess he would have repeated all of his denial lies anyway... so I am not at a loss, except that he did not even attempt to comply the court order and he got out of paying his staff to do the work and he skated what he should have been required to do regardless...it is the abuse and favoritism I find appalling the legal system...he is an attorney and above all should be held to follow the rules and order of the court...
Next... she did except my "complaint and answer and supplement to my answer"..... even though she said the law made not have been given as to that of a lawyer... the content was good the foundation of underlying disputes was understood, and she was very pleased with my relentless efforts in pro se....
However, the attorney debtor did his whinney song and dance and his disgusting snickering and his attempt to never ever give information ever... he just snarls throws tantrums and point the finger of blame on everyone else find ridiculous things to say to drail the truth and insist on things that are irrelevant because he has not basis and no truth to share at all ... just reinforce lie after lie....
so he threw a tantrum and when the judge told him I have the legal right to reopen my unadjuicated claims under elements 523 2 and 4...he kept insisting that I was barred by the Statute of Limitations on State Court..
the judge insisted that under Federal rules and jurisdiction I am not...
he would not let go and finally even though she kept saying he was not right and she knew the laws better... she gave him to the opportunity
to oppose her acceptance of my complaint/answer against him by allowing him to file a "Summary Judgement" with regard to the Statute of Limitations Rules and anything else he wants to contest etc.
She said that she is changing my complaint from fraud to non-deschargeable etc and the hearing is scheduled several months out!!!
I kinow this is a lot to read and answer...please help and please give me your thoughts and feedback????
It sounds like you won this round. If your claim was legally insufficient, the Judge would have dismissed it outright, so it's a good sign that this didn't happen.
"She said that she is changing my complaint from fraud to non-deschargeable etc and the hearing is scheduled several months out!!!"
Response: This may be good for you - do you mean that the Complaint is being changed from fraud to fraudulent transfer and/or preferential transfer? "Fraud" per se is very difficult to prove, so the judge may be trying to help you bring your Complaint into the fraudulent transfer and/or preferential transfer provisions of the Bankruptcy Code (Sections 547 and 548).
If a hearing is scheduled for several months out, now would be a good time to schedule and Subpoena the Debtor for his 2004 Examination. What's the next hearing - a status conference-type of hearing or the hearing on the Debtor's Motion for Summary Judgment?
....The next hearing is as follows....
yes, the debtor files a motion for summary judgment and that is scheduled for april 4,... 45 days before that hearing which would be middle or end of february he files his summary judgment with the court and me...then I have a few weeks to respond then he can respond one more time,,,,
She said that she will allow the elements of 523(a)2 and 523(a)(4) to be heard not.... 523(a)(6).... and she is amending my complaint to be for a non-dischargeable debt under those elements and not fraud because it is hard to prove... I am very confused about the difference and what she is saying...
so you think I won this round... but how can that be so if he gets to file a motion for summary judgment... does she think she just owes me a chance that she doesn;t think I can win in pro se...
The judge did say that if I could afford and attorney etc I could probably bringe to light what I do not have the knowledge to do in pro se>>>
Q: "She said that she will allow the elements of 523(a)2 and 523(a)(4) to be heard not.... 523(a)(6).... and she is amending my complaint to be for a non-dischargeable debt under those elements and not fraud because it is hard to prove... I am very confused about the difference and what she is saying..."
A: Here's the short version:
523(a)(2) would make the debt non-dischargeable to the extent it was obtained by "false pretenses, a false representation, or actual fraud." This may be difficult to prove, but certainly not impossible. For instance, a false representation might be that the Debtor agreed in writing to handle your case for $3,000, then kept the entire $21,000 settlement (I'm making up possible scenarios for purposes of illustration; none of these examples may be that close to what actually happened in your particular case). The false representations would be that he was only going to charge you $3,000 and (more implicitly) that he would not steal your money.
523(a)(4) would make the debt non-dischargeable to the extent it was obtained by "fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny." Depending on the specific details of your case, this may be your strongest argument when you're dealing with a Debtor who was acting in his capacity as an attorney in an attorney-client relationship when the underlying harm occurred. In the Debtor's role as an attorney, he owed you strict fiduciary duties to act in your best interest at all times, not defraud you, not embezzle trust funds earmarked for disbursement to you, and/or not steal your money. A bankruptcy judge should be especially receptive to the "fiduciary" argument, as an attorney doing this kind of thing and getting away with it makes all lawyers (and the entire judicial system) look bad.
523(a)(6) (the one that got tossed out) would make the debt non-dischargeable to the extent it was a debt "for willful and malicious injury by the debtor to another entity or to the property of another entity." The terms "willful" and "malicious" are separate elements. You must prove both elements in order for the debt to be found non-dischargeable. The injury itself must be desired and in fact anticipated by the debtor in order or for the debt to be excepted from discharge. Thus, debts arising from recklessly or negligently inflicted injuries do not fall under 523(a)(6). The term "malicious" refers to the debtor's motivation in committing the act and has been defined by the court to mean wrongful and without just cause or excuse, even in the absence of personal hatred, spite, or ill-will. Actual or constructive malice will suffice and may be imputed to the Debtor in cases where a Debtor seeks profit or some other benefit only upon a finding of aggravated circumstances. To sum it up, you would essentially need to prove, for instance, that the Debtor stole your money specifically to spite you or due to some kind of malice toward you (VERY hard to prove, as he's obviously going to deny anything tending to show a personal motivation to harm you).
Q: "so you think I won this round... but how can that be so if he gets to file a motion for summary judgment... does she think she just owes me a chance that she doesn;t think I can win in pro se..."
A: I don't know exactly what the Debtor is alleging, but Rule 56(b) of the Federal Rules of Civil Procedure (incorporated by the Bankruptcy Rules) is extremely liberal in allowing parties to bring Motions for Summary Judgment. Rule 56(b) states as follows: "Time to File a Motion. Unless a different time is set by local rule or the court orders otherwise, a party may file a motion for summary judgment at any time until 30 days after the close of all discovery." Basically, at this point in the case, the Judge can't stop the Debtor from filing a Motion for Summary Judgment and having it heard; the Judge simply has very little discretion here to deny the Debtor's Motion without a hearing.
Below are the links to the Federal Subpoena forms you may be able to use to Subpoena the Debtor for a 2004 Examination (make sure to Subpoena all relevant documents Debtor might possess as well). Since you don't have an attorney, the court clerk should issue a Subpoena for you. When you go to the courthouse to have the clerk issue the Subpoena (or hire an attorney to represent you and have him or her serve it), ask whether your particular District (i.e. Central District of California, or wherever you are) uses a different Local Form for this Subpoena or requires you to fill out any other Local Forms in order to have a Subpoena issued.
Federal Subpoena Form for Adversary Proceedings: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_1207/B_255_1207.pdf
Instructions for Same: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Bk%20Forms%2008%20Dir%20Instructions/Form_255_INSTR_Subpoena_Adv_Proc_1208.pdf
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