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A.J.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4262
Experience:  Experienced consumer bankruptcy attorney.
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We just finished our court day tuesday, it has not been an

Resolved Question:

We just finished our court day tuesday, it has not been an easy rd to get here.
the defendent lie so clearly on the stand.
I hope judge see that he is a lier.
my question is if we have all the written evidence to prove the defendent and his wife have committed fraudulent act.
how likely is it that we win the case?
and if we win the case where his debt to us can not be dismissed, what will happen next? will the feb judge force them to have payment plan?
before his decision made, can we write letters to the judge or we have to wait until after his judgement?
how likely people that being fraudulence and lie under oath get off from their responsibility?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  LegalEagle1 replied 1 year ago.
Hello and welcome to JustAnswer. I would like to assist you with your question today.

Before I provide you with an answer, can you tell me what type of case this is? Is this a civil case where you are seeking damages or is it a criminal case where you will ask the court to order restitution?
Customer: replied 1 year ago.


it is civil, the defendence filed chapter 7 with his wife to avoid debt

Expert:  LegalEagle1 replied 1 year ago.
So was the hearing today held in bankruptcy court or was part of your civil case against the defendant?
Customer: replied 1 year ago.


it was held tuesday 26th in federal court (bankruptcy counrt)


for the hearing of our initially approved 523

Customer: replied 1 year ago.


yes in bankruptcy court, federal, bc some of our 523 was initially approved that is why we even got a court date to appear and testify

Expert:  LegalEagle1 replied 1 year ago.
Since your question involves a bankruptcy proceeding I am going to opt out and transfer your case to the bankruptcy section of JA. One of the experts in that area should be able to assist you further.
Customer: replied 1 year ago.


yah I thought I did put in category of bankruptcy law lawyer but thanks anyway

Customer: replied 1 year ago.
Relist: Other.
my question was for a BANKRUPTCY lawyer, it is not direct to the right lawyer, please direct to the right lawyer thanks!
Expert:  A.J. replied 1 year ago.
Hi,

My name isXXXXX am a bankruptcy law professional, and I look forward to answering your question today.

It is very difficult to predict how likely a victory in a petition under section 523 is (a petition to have a debt considered non-dischargeable) without being able to review all of the evidence presented to the judge. However, if there is significant proof that the debtor committed fraud in taking on the debt, making little or no effort to pay the debt and then filing bankruptcy, or using the bankruptcy code to maliciously try and injure a creditor, then the chances should be good. Ultimately, any determination by a court, including a federal bankruptcy court, is how compelling the evidence of fraud or malicious intent is. If the evidence is comprehensive, and clearly demonstrates fraud on the part of the debtor, then the court is significantly more likely to find for the creditor (you) that there was fraud. Where it is a close call, or the evidence is not clear or is ambiguous, it is more likely that the court will find for the defendant (the bankrtupcy debtor).

Now, in answer to your second question, while you can write letters to the judge, if the letters contain new arguments or new evidence, that information would need to be presented in new hearing with the debtor having an opportunity to refute the new evidence or arguments. The reason this is true is that in any legal proceeding, including a bankruptcy proceeding, all parties must have the right to respond to new arguments and new evidence presented. So, while you are allowed to send a letter to a judge, if it contains new arguments or evidence, it is possible that the judge will not consider it unless you request a hearing on the evidence with the debtor present to respond. A judge is not under any obligation to consider anything that is not presented to the court in a hearing, or filed with the clerk with notice given to the debtor so that they can respond.

Finally, generally the bankruptcy court will not require the debtor to pay the amount in question, because collection is not the issue in front of the court, but rather whether or not the debt can be discharged in bankruptcy. If a creditor wins on a 523 petition to have a debt considered non-dischargeable, the creditor (in this case you) still has to go through collection proceedings, which vary from state to state and may include asking the court to garnish wages, seize funds from a bank account, or seize property for sale to collect on the debt. Generally collection actions are taken in a seperate proceeding in state court.

So, in summary (1) If the evidence was strong that actual fraud was committed, or the debtor intentionally used the bankruptcy code to harm a creditor (which usually means they took out a debt with no intention of paying and then filed a bankruptcy petition), then the chances are good for success, but are never guarunteed. (2) A judge may be willing to accept a letter from a party to a case, but if the letter is intended to persuade, make new arguments, or offer new evidence, then it is unlikely the court will consider it unless the debtor has an opportunity to respond in court (After having been given notice). (3) Collection generally happens at the state court level, the goal of the 523 petition is just to prevent the debt from being discharged by the bankruptcy court. If the debt is not discharged, the creditor (you) then have the opportunity to collect on the debt through typical channels (namely a collection action through state court). If everything works out and the bankruptcy court determines that the debt is still owed, it would be prudent to consult with a debt collection attorney in your area of Texas, as although debt collection often appears easy to people, it can get complicated in hurry. For a referral to an attorney in Texas, the state bar association may be of some assistance at:

(800)(NNN) NNN-NNNNbr/>
I hope this helps, but let me know if you require any clarification of anything I have said (never be afraid to ask for clarification!). Otherwise, please remember to RATE my answer positively so that I can receive credit for my work.
Customer: replied 1 year ago.

very very helpful,


I also wondering by law can a person that only have 2.5% of ownership of a company has the right to claim as general manager of the company to induce people of loan them money and sign as general manager?


is that not against criminal law

Expert:  A.J. replied 1 year ago.
Theoretically, a person with only 2.5 % interest in a company could be the general manager yes. Now, if they are not actually a general manager and hold themselves out to be fraudulently, that could potentially be fraud under Texas's criminal code, which defines fraud, among other things, as:

Sec. 32.32. FALSE STATEMENT TO OBTAIN PROPERTY OR CREDIT OR IN THE PROVISION OF CERTAIN SERVICES. (a) For purposes of this section, "credit" includes:

(1) a loan of money;

(2) furnishing property or service on credit;

(3) extending the due date of an obligation;

(4) comaking, endorsing, or guaranteeing a note or other instrument for obtaining credit;

(5) a line or letter of credit;

(6) a credit card, as defined in Section 32.31 (Credit Card or Debit Card Abuse); and

(7) a mortgage loan.

So, such an act could, theoretically, be fraud, both criminally and for purposes of bankruptcy, if such an individual was not actually a general manager of a company or did not actually have the authority to make financial transactions on behalf of the company, and still knowingly did so.

I hope this helps further, and I appreciate the opportunity to answer your question. If you do not have any further questions, please remember to RATE my answer positively so that I can receive credit for my work.
Customer: replied 1 year ago.


ok I will need to find out if he is in fact a general manager, the comp was 2.5% of him and 2.5% of his wife and rest 95% divided in half between his 2 kids, so maybe they have all 4 under general manager.


 


but in court we had printed memo that he signed to say the loan he asked of my dad was just like bank CD and it is safe and secure and protected by state and federal law and he signed and he admit he signed


but he claim on the stand he does not know what cd is at the time, yet he owe businesses for 33 years and has 2 degrees from us.


he just lie and lie all over.


I can not imagine judge could not see that


but I do not know how fed judge works


and he said he never threatened not to pay off even my dad asked many time when loan matured.


my lawyer did a very good job, he asked so what you are saying is Mr xx never asked for the repayment of the loan during the years


so when he has to scrub $$ to survive and he has $$ at 3rd party, he never asked to pay back so he can survive? and this man lie under oath that "I do not know why he does that but yah he never asked"


and when my layer pushed for him to say "no I am asking is it logical and if it is you what will you do, he just refused to answer directly..


I just want to know does it affect his credibility in front of the judge.


will judge under normal circomstances see through what is so obvious to us.

Customer: replied 1 year ago.


did u see my following question?

Expert:  A.J. replied 1 year ago.
I apologize for the delay, it looks like the site took a little while to post your responses so that I could see them.

In answer to your question, being caught in a lie, or being unable to demonstrate the logic of your position, certainly can hurt the credibility of a witness or the debtor themselves in the eyes of the judge. There is no sure fire way to know how a specific judge will react, bankruptcy or otherwise, because they are all different, and while the law says one thing, each judge will view the law, and the statements made by witnesses, a little bit differently. It is certainly very difficult to show intent to commit a fraudulent act, but it sounds as if your attorney did well in their attempt to do so. Ultimately, the best you can do is have a competent attorney make the best argument that can be made, and hope for the best (which it sounds like has been done). Then, it is a matter of how the judge sees the situation, and that can really judge from judge to judge.

I certainly wish you the best of luck, and hope that, if there was fraud, the judge can see that. Let me know if you require any additional information. Otherwise, please remember to RATE my answer positively so that I can receive credit for my work.
A.J., Attorney
Category: Bankruptcy Law
Satisfied Customers: 4262
Experience: Experienced consumer bankruptcy attorney.
A.J. and 2 other Bankruptcy Law Specialists are ready to help you

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