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cfortunato, Attorney
Category: Bankruptcy Law
Satisfied Customers: 8023
Experience:  Bankruptcy professor.
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Hello, on 8-18-2008 we filed a chapter 13,on 1-23-2009 a customer

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Hello, on 8-18-2008 we filed a chapter 13,on 1-23-2009 a customer filed a small claims against my business which we did not know it it was mailed to our ex-business location that we did not have anymore control over. the small claims court in another county of mine entered an appearence date of 2-26-2009,we did not appear as we did not know it was going on. the judge in the small claims case accepted a judgement against us because of course we failed to appear. a garnishment order was then filed,of which a date of 4-02-2009 was entered, and of course again, since we knew nothing was going on we did not appear. the garnishment order was appoved and at this time my employer notified me of such, I turned this over to my attorney who turned it over to my trustee and nothing was ever heard from again.untill now.we recieved out discharge in december 2009 as eariler in the year I filed for a conversion to a chapter 7.we are now attempting to refinance our home over three years after our discharge and now have found out that we have an open judgement in that county that was granted while we were in bankruptcy. my question is. what process do I have to go through to get this resolved as we have a time sensitive issue with our finance the county in question in the wrong by not closing their case even if they aired by ordering a judgement aginst us while we were in protection in federal court?
Hi - my name is ***** ***** I'm a Bankruptcy attorney here to assist you.
1) Was this customer included in the papers you filed for your Bankruptcy?
2) Was this customer's claim based on fraud or on a false representation?
3) Did any of your unsecured creditors receive any money from your Chapter 13 monthly plan payments?
Customer: replied 3 years ago.
1) NO,it's because he filed his small claim while I was in bankruptcy, the two hearings happened and i did not even know they were active as all their letters were either sent to my former business location or our home that we surrendered when we first signed our bankruptcy papers.
2)NO. just a business disagreement on issues.
3) We signed a 13 at the beginning and were making a $750.00 monthly payment to our trustee.two creditors were demanding more out of us than what we could pay. and after faithfully making a year of payments into our five year plan, our attorney advised us to sign a conversion to a 7 because he felt these creditors were not going to stop their pursuit from our trustee for more money.I was maxed out at the $750.00.
Thank you for your response.
Since the customer did not know about your Bankruptcy filing (because he was not included in the Bankruptcy papers), no automatic stay violation occurred by filing a small claims court case.
However, since you did not know about the small claims court case, and therefore did not appear or respond, the customer received a "default judgment". You should be able to have that judgment vacated by going to the clerk at the court that issued the judgment, and asking to file a "Motion to Vacate a Default Judgment", based on the fact that you never received the papers.
Customer: replied 3 years ago.
cfortunato, I contacted the clerk of this court a few days ago and after I explained to her exactly what I explained to you, she advised me to write a letter to the Judge and explain it all to him.Thats what I did on thursday.I wish I would have asked you prior because I'm not sure what the judge's response will be.I sent him all supporting documentation with it. I just happened onto today. But Chris I thank you for your advise, hopefully the Judge will advise me to do the same and file the motion to vacate a default judgement.not sure,but again. your advise was still invaluble to me as I've now found a superway to get legal questions anwsered. next time I'll ask the question first before acting on my own. Thanks a million ( chaulk one up, you made a fan today ).JIM
You're welcome!
And I am happy I was able to help you!
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