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socrateaser
socrateaser, Attorney
Category: Business Law
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Experience:  Retired (mostly)
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New Jersey law... Basic contract law... Personal loan currently

Customer Question

New Jersey law... Basic contract law... Personal loan currently under adjudication... question, can a arbitration agreement be written to protect me the plaintiff against the defendant filling bankruptcy to avoid payment..

I have been told by a NJ attorney that it is not possible and/or enforceable to add this clause to any agreement? Is there any stipulation/clause/method that can be used to protect me if the defendant claims bankruptcy after judgment or arbitrator agreement.
Submitted: 9 months ago.
Category: Business Law
Expert:  socrateaser replied 9 months ago.
Hello,

"Ipso facto" bankruptcy provisions which cause a contract to terminate upon the filing of a bankruptcy petition are void as in violation of federal law, in most circumstances. Bankr. Code 365; In re Rickel Home Centers, Inc., 209 F. 3d 291 (U.S. 3rd Cir. 4/6/2000).

However, where a contracting party seeks to enforce a pre-bankruptcy petition rescission of a contract via an arbitration clause in the original loan contract, the bankruptcy court must permit arbitration rather than litigation via an adversary proceeding in bankruptcy. In re Mintze, 434 F. 3d 222 (U.S. 3rd Cir. 1/13/2006).

So, the answer here is, "yes," it is possible to enforce an arbitration clause in bankruptcy, but only to the extent that the matter in bankruptcy is related to the dischargeability of the debt. Because if the matter concerns the breach of contract itself, then the debtor can simply claim protection of the bankruptcy laws and discharge the debtor's obligation.

Please let me know if I can clarify anything or further assist.

Hope this helps.
Customer: replied 9 months ago.


This was a loan with the following parameters: A family member (B) needed a vehicle. His (A) girlfriends mother purchased the vehicle based on verbal agreement with me to provide the funds. The mother (A) accepted the check, cashed it, titled, registered and insured the vehicle in her name for our nephew. Payments began for a short time then ceased after the nephew (B) moved in with family (A). Our approach is to hold (B) liable as she owned operated and insured the vehicle. But have named both parties jointly and severely liable. Is this the correct approach. We wish to secure and have our original loan amount repaid.

Expert:  socrateaser replied 9 months ago.

If (B) induced you to make the loan to (A) based upon (B)'s promise to pay, then that would be either a breach of contract between you and (B), assuming that (B) intended to pay at the time that the promise to pay was made; or fraud, if (B) did not intend to pay.

Proof of fraud is always difficult. But, as a pure contract law matter, both breach of contract and fraud are colorable claims for a lawsuit.

Hope this helps.

socrateaser, Attorney
Category: Business Law
Satisfied Customers: 33504
Experience: Retired (mostly)
socrateaser and 4 other Business Law Specialists are ready to help you
Customer: replied 9 months ago.

I need different representation in Toms River, NJ. Any you can recommend? This should have been an open & shut civil and we are on the losing end. Please help me.

Expert:  socrateaser replied 9 months ago.
Hello again,

I regret that I am not permitted to make direct referrals from this forum. The best that I can do is to provide you with a link to the various NJ Bar Association legal referral websites (click here).

Before you start looking for a new lawyer, I encourage you to sit down with your current legal counsel and have him/her explain specifically why the arbitration clause is unenforceable.

I can see different rationales under which arbitration might not be permitted. There are several different legal concepts in play here.

Best wishes.
Customer: replied 9 months ago.

"1. Keith to pay a total of $9000 at a rate of $160 per month until paid in full beginning November 1, 2013 and continuing monthly till paid in full;




2. If any payment is late, you must email or write him telling him its late and he has 15 days to make payment. If he fails to do so , you can make application to the judge for a judgment against him for $9000 minus any payments he has made.




3. By November 1, 2013 , Keith has to provide you with the new title with John’s name as a lien holder which you will hold till the debt is paid in full. If he fails to do, you have the right to reopen the case as to both defendants.




4. By November 1, 2013 , Keith is to provide photos of the car . The debt must be paid regardless of the current or future condition of the car.




5. The Complaint is dismissed as to Judy, except as to number 3, above."


 


Vehicle currently titled to Judy Kushner.



I live in Illinois. I did get a reference from said list... hence our attorney hired from said list... attorney made concessions that we didn't agree with and he put it in front of a judge without our consent as to each point. I guess I have no further options. What is my recourse if I can't get a recommendation? I suggested criminal theft and was told it wouldn't be feasible... My lawyer got "out-lawyered" by their lawyer. I'm the victim yet they prosper. What channels are left for us to explore?


 

Expert:  socrateaser replied 9 months ago.
What you've just described seems like a pretty unremarkable payment plan ($160 per month for 57 months).

Is this a settlement agreed to by the lawyers and already ordered by the court?

If yes, then please tell me what you find unacceptable about the agreement.

If no, then please explain what the payment plan represents?

Thanks in advance.
Customer: replied 9 months ago.

Vehicle has been titled by Judy since 2006...not indicated in "agreement" that Judy relinquishes title rights to said vehicle. Keith can then (per our previous content, as discussed) can turn around and file for bankruptcy. They also agreed to a lien holder on the title but would not agree to "full coverage" insurance. Having lived in NJ till '96, a lien required full coverage. I believe it still does.


 


We did agree to payment to be received by the first of the month. Now it became the 15th of the month without any penalties. Not discussed with us. We would not have agreed without a penalty.


 


#2 Keith has no official email address that I know of (all comms went through XXXXX@XXXXXX.XXX) and has continued to use the email of the co-defendant. Keith also lives with the co-defendant. His wife is now the daughter of the co-defendant. I need to notify HIM when HE is late??? You know when you are late when you pay your bills. This is wrong in so many ways. Since there are too many ways to claim "I didn't get notification", I requested bank transfer as an option to remove the uncertainty of USPS mail. My attorney declined to answer and obfuscated the subject with another subject. What do I do at this point? I did not agree and he has taken too many liberties along with my trust. What are my options? Thank you.


 


 


 


 

Customer: replied 9 months ago.

I have sent the unacceptable terms... Keith has no official email address that I know of (all comms went through his mother-in-law, XXXXX@XXXXXX.XXX) and has continued to use the email of the co-defendant. Keith also lives with the co-defendant. His wife is now the daughter of the co-defendant. I need to notify HIM when HE is late??? You know when you are late when you pay your bills. This is wrong in so many ways. Since there are too many ways to claim "I didn't get notification", I requested bank transfer as an option to remove the uncertainty of USPS mail. My attorney declined to answer and obfuscated the subject with another subject. What do I do at this point? I did not agree and he has taken too many liberties along with my trust. What are my options? Thank you.

Expert:  socrateaser replied 9 months ago.
I need to know if your posted "agreement" is a settlement agreed to by the lawyers and already ordered by the court?

Thanks in advance.
Customer: replied 9 months ago.

Not all disclosed... have been told to "wait for agreement".


"John and Maggie: to confirm, I signed the agreement and represented to the judge that you agreed to the following settlement:


 



  1. Keith to pay a total of $9000 at a rate of $160 per month until paid in full beginning November 1, 2013 and continuing monthly till paid in full;

  2. If any payment is late, you must email or write him telling him its late and he has 15 days to make payment. If he fails to do so , you can make application to the judge for a judgment against him for $9000 minus any payments he has made.

  3. By November 1, 2013 , Keith has to provide you with the new title with John’s name as a lien holder which you will hold till the debt is paid in full. If he fails to do, you have the right to reopen the case as to both defendants.

  4. By November 1, 2013 , Keith is to provide photos of the car . The debt must be paid regardless of the current or future condition of the car.

  5. The Complaint is dismissed as to Judy, except as to number 3, above.


 


I will send you a copy of the order by regular mail and this email as a confirming letter. as the it does not scan well.


 


As to how Keith is going to pay the debt, who knows. Hopefully , he takes this seriously now. He did appear to be a bit frightened to be hauled into court on this. In the very least, you established in writing that he is responsible for this debt and you have a lien on the car.


 

Expert:  socrateaser replied 9 months ago.
In Amatuzzo v. Kozmiuk, 305 NJ Super. 469 (NJ Sup. 11/14/1997), the NJ Superior Court writes:

 

In sum, the contract that you need to be concerned with is your written fee agreement with the attorney. Unless that agreement expressly granted the attorney the authority to settle this matter, then the attorney's statements to the court are grounds for suspension/disbarment, and are subject to being set aside by the court on a motion for relief from judgment, or by reversal on appeal.

 

It's also grounds for a malpractice action against your attorney, to the extent that the attorney's actions damage your interests.

 

Your recourse is to tell the attorney that he can either rescind the unauthorized settlement, or personally guarantee the defendant's payments in writing -- otherwise, you will be forced to take appropriate legal action to enforce your rights.

 

You cannot threaten to file a complaint with the State Bar -- that would be criminal extortion. All you can do is threaten to take appropriate legal action.

 

Again, I would encourage you to try to figure out a way to avoid a real war with the lawyer, but unless your fee/retainer agreement, or something else written by you, provided the attorney with authority to settle this matter, then the attorney could not settle the matter.

 

Hope this helps.

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