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DrakeLAW, Attorney
Category: Bankruptcy Law
Satisfied Customers: 715
Experience:  Attorney at Drake Law Firm PLC
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Here is a real world scenario: My company filed a suit

Customer Question

Here is a real world scenario:My company filed a suit against an individual in federal court and a trial date has been set for later this year. Early in the case, the individual filed counterclaims against my company for new issues to which my company answered and filed additional claims against this same person in response. We have two pending fraud claims against this person in federal court, along with other claims.We believe it is highly likely that this individual that my company brought suit against may file for some form of bankruptcy before the trial date in an attempt to stay the case with the hope that we will simply give up, and to also try to escape liability.Is the fact that this person asserted claims (baseless as they are) against my company enough to preclude them from filing a bankruptcy petition or can this person still move forward will filing a bankruptcy petition even though they initiated counterclaims against my company in federal court?
Submitted: 10 months ago.
Category: Bankruptcy Law
Expert:  DrakeLAW replied 10 months ago.

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The fact that the individual asserted claims against your company will have no impact at all on their ability to file bankruptcy. However, while there may be a temporary stay of the trial, you will want to file the fraud claims as an adversarial proceeding in his bankruptcy before the deadline to do so. And then your company and the bankruptcy court will talk and decide if the fraud claims should be heard in the federal court where they are now or moved to the BK court.

Customer: replied 10 months ago.
A large portion of our dispute with this person is the ownership of a patent portfolio. We can show we now own the patents per this person's breach and/or fraud but we do not want to risk this person stating that they own the patent portfolio as part of a listed asset on a BK petition. Any advice on that?
Expert:  DrakeLAW replied 10 months ago.

Well, there is nothing you can do to stop the person from listing and asserting it as an asset. If there is any doubt, you would indeed have a little fight over that with the trustee. What is the basis of your claim of ownership of the patent portfolio? Did you purchase it or always own it?

Customer: replied 10 months ago.
our company was the original owner and assigned it to this person (who is a patent attorney) under written agreement that rhey would share 50% of all revnue with us. we found out this person did a lot of licenseing deals with the assigned patents that he never told us about and collected a lot of money, hence why we brought a fraud claim. we also found out this person granted rights to a third party under our patents BEFORE the patent assignment agreement was executed that we didnt know about until after the current lawsuit was started.
Expert:  DrakeLAW replied 10 months ago.

Ok, and is there a term to the assignment? Or breach conditions where if there is a default/breach the assignment reverts back to your company?

Customer: replied 10 months ago.
there is a automatic reversion and breach clause related to non-payment within a certain time period (30 days after receipt of money). There were license deals done that go as far back to mid 2013 that we just found out about.
Expert:  DrakeLAW replied 10 months ago.

Alright, well my bigger concern for you was the trustee claiming some interest in it and avoiding a transfer back to your company, but I think with the automatic reversion you will be fine. So yes, if he files bankruptcy, be very active in it. Despite what I said previously, there are circumstance that you can dismiss a bankruptcy filing as filed in "bad faith" and based on what you have told me that may be something to explore right up front as well. But failing that, you will want to bring an adversarial proceeding in his bankruptcy to pursue the fraud charges.

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