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Zachary
Zachary, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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A small quick mart type store sold beer to a minor, the minor

Resolved Question:

A small quick mart type store sold beer to a minor, the minor confessed that he bought beer there quite often with out a problem.. The minor got drunk had an accident and caused another man to die..
The Quick mart type store was named in the law suit and served the appropriate papers, they never responded..
Shortly there after they changed their name, although still owned by the same family. They've been served several times since, and have not responded.
The judge made a judgement in favor of the family of the deceased to be paid by the store. Still no response.
Is it legal to change your name during a lawsuit, and is it possible they can get away with the judgement against them..
Is there a law that would protect the family of the deceased in this case of obvious avoidance.?
Thanks.
Submitted: 1 year ago.
Category: Legal
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question.

Was the Quick Mart store an corporation?

-ZDN
Customer: replied 1 year ago.


Yes it's incorporated..

Expert:  Zachary replied 1 year ago.
OK,

A corporation which during litigation, or in anticipation of litigation, transfers all of its assets in a deliberate attempt to avoid payment of a liability under that litigation may be restrained from doing so, or may have the transfer cancelled under the New York Fraudulent Conveyances Act, 2006 New York Code Art. 10, Section 270 et seq.

In other words, the deceased's family (plaintiffs) will need to request that the court either enjoin the Quick Mart from completing the transfer of assets or to cancel the transfer of assets and to maintain the status quo until the end of the lawsuit so that if the Quick Mart is found liable, it will be able to satisfy the judgment from its assets.

Please let me know if you need more information or would like to discuss this matter further.

-ZDN
Customer: replied 1 year ago.


They already did change the name, approx 2 years ago.. It can't be canceled, they found out about the name change after the fact. The judgment in favor of the family was made in just the past 6 weeks or so..


 

Expert:  Zachary replied 1 year ago.
Thanks for your response.

It's not a matter of the "name change". The thing that matters is whether the corporation is able to pay the judgment. If it cannot pay the judgment because it transferred its assets in anticipation of the liability on the lawsuit, then the transaction may be cancelled.

If the transfer of assets occurred prior to the lawsuit being filed without any intent to defraud the plaintiffs, then the quick mart is safe for now since it did not answer the lawsuit. The plaintiff would be required to either prove a fraudulent intent under the statute to be able to enforce the judgment against the quick mart, or would need to refile the lawsuit against the current incorporation. There may be a statute of limitations problem in refiling the lawsuit, and the plaintiff may be in a situation where it waived its right to recover against the quick mart by failing to sue it in its proper name if the plaintiff cannot establish a fraudulent transfer under the act.

If the plaintiffs have attempted to satisfy the judgment on the corporation and they claim there are no assets left, then the plaintiffs can go back to the court and request that the transfer be cancelled. This would be in the form of a new lawsuit since the trial court has probably already lost original jurisdiction.

The statute of limitations on this kind of fraudulent conveyance is 6 years from the date of the conveyance, so its probably not too late.

You say it was a "name change." Is it the same corporation which simply changed names, or did the owners dissolve the prior corporation and then open up a new corporation with a different name.

If it is the same corporation and they simply changed the name, then they are still liable on the judgment.

-ZDN
Zachary, Attorney
Category: Legal
Satisfied Customers: 3851
Experience: Lead trial/International commercial attorney licensed 11 yrs
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