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Pertains to question reqarding possible Adversarial

Pertains to question reqarding...

Pertains to question reqarding possible Adversarial Proceedings in Bankruptcy court

Lawyer's Assistant: What state are you in? And has anything been officially filed?

Florida, I believe the party who owes me money have yet to file in the bankruptcy Court.

Lawyer's Assistant: Has anything been filed in civil court? If so, what?

Only my lawsuit against the parties who owe me money.

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Here is the background and questions I have:

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Answered in 11 minutes by:
9/22/2017
KLAW
KLAW, Lawyer
Category: Bankruptcy Law
Satisfied Customers: 2,289
Experience: I have over 20 years of experience in commercial real estate law, finance, consumer credit, landlord tenant, and business law.
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Customer reply replied 9 months ago
Over a period of a few years, I cumulatively loaned a husband and wife in Florida $250,000 unsecured. Earlier this year, I had to file suit for recovery of the same. In March, 2017 The matter was settled between the parties and their respective attorney’s March, 2017 on the basis of monthly payments, which if not paid by the plaintiff, as per the Settlement Agreement, the case pending in the District court would remain open until paid in full. or if monthly payments by Plaintiff per a settlement agreement were ever in default and the Plaintiff filed an affidavit so stating, such action by Plaintiff would automatically provide for a court judgment in favor of the Plaintiffs in the sum of $250,000. plus $6,000.
The Plaintiff is currently in default. A notice of default has been issued by the Plaintiff to the defendant and their attorney as per the Settlement Agreement. The plaintiff has until September 28, 2017 to bring the default payments current. Until then the attorney for the Plaintiff is barred from filing the necessary affifivit with the District Court and obtain a judgment almost automatically.
Parenthetically, the defendants have now openly stated to the Plaintiff they have and/or intend to file for bankruptcy almost immediately.
Questions:
If the Defendant files for bankruptcy before the affidavit can be issued and judgment is entered in favor of the Plaintiff, would this stay the ability of the Plaintiff to obtain a Judgment?
If the bankruptcy has been opened and a stay of the Plaintiff obtaining the judgment was in effect, once the bankruptcy iss filed, would it be possible to file Adversarial Proceedings to seek both the judgment and the debt tp remain as a undischarged debt?
Customer reply replied 9 months ago
Should be the Defendant ( not plaintiff) is currently in default
Customer reply replied 9 months ago
Did you receive my background and questions?
Joycelaw
Joycelaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 118
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Customer reply replied 9 months ago
Alternatively to cell, can call my landline(###) ###-####
Customer reply replied 9 months ago
I am ready and waiting for a call... either cell(###) ###-####or
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Customer reply replied 9 months ago
In my earlier initial outline of the situation, I seem to have verbally messed up Defendants and Plaintiffs. Have now re-written and hope is less confusing...9/22/17
Proforma Bankruptcy Defense
Over a period of a few years, I cumulatively loaned a husband and wife in Florida $250,000, unsecured. Due to nonpayment, in January, 2017 I filed a lawsuit for recovery of the same. In March, 2017, The matter was settled between the parties in conjunction with their respective attorney’s, on the basis of monthly payments, during which the case pending before the District Court would remain open until the sum of $200,000 was paid to Plaintiff in full. Further, if at any time monthly payments by Defendants per the settlement agreement were ever in default and the Plaintiff filed an affidavit with the district Court so stating, such action by Plaintiff's attorney would automatically provide for a court judgment in favor of the Plaintiffs in the sum of $250,000. plus $6,000.The Defendant is currently in default. A Notice of Default has been issued by the Plaintiff to the Defendant and their attorney as per the requirements of the Settlement Agreement. The Defendant has until September 28, 2017 to bring the default payments current and the notice of default withdrawn. Until then, the attorney for the Plaintiff is barred from filing the necessary affidavit with the District Court so as to obtain the a judgment. against the Defendants.Parenthetically, the Defendants have now openly stated to the Plaintiff they have and/or intend to file for bankruptcy almost immediately. I presume Defendant will be filing for Chapter 7 or Chapter 13.Questions:
1. If the Defendant files for bankruptcy before the affidavit can be issued by the Plaintiffs’ attorney, and judgment thus cannot be entered in the District Court in favor of the Plaintiff prior to the filing of Bankruptcy by the Defendant, would this action of the Defendant (filing bankruptcy) hinder the ability of the Plaintiff to still proceed to obtain the Judgment in the District Court as set out in the Settlement Agreement?2. If the bankruptcy has been filed by the Defendant and a stay is in place concurrent with the bankruptcy filng relative to the Plaintiff obtaining the judgment in the District Court, is it then relevant for the Plaintiff to subsequently file Adversarial Proceedings against Defendant in the bankruptcy proceedings seeking a judgment for both the $250,000 plus $6,000, as per the Settlement Agreement; as well as to have the Bankruptcy Court retain said debt as an ongoing undischarged debt, regardless of the remainder of the terms of the balance of the otherwise completed bankruptcy?
DMc
socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,986
Experience: Attorney and Real Estate Broker -- Retired
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Hello,

Different contributor here. Please permit me to assist. You asked:

1. If the Defendant files for bankruptcy before the affidavit can be issued by the Plaintiffs’ attorney, and judgment thus cannot be entered in the District Court in favor of the Plaintiff prior to the filing of Bankruptcy by the Defendant, would this action of the Defendant (filing bankruptcy) hinder the ability of the Plaintiff to still proceed to obtain the Judgment in the District Court as set out in the Settlement Agreement?

A: A bankruptcy petition stays all actions to collect a debt, including a "confession of judgment", which is the legal term for the type of contractual agreement that you describe between yourself and the defendant/debtor. So, yes, it would hinder your ability to collect. If the bankruptcy is a Chapter 7, you would be unable to enforce the debt unless there is some security interest such a a mortgage protecting your right to repayment.

Your recourse in this circumstance would be to try to prove in a bankruptcy court adversary proceeding that the debtor never intended to pay the debt. This would convert the breach of contract/loan default claim into an intentional misrepresentation (i.e., a fraud). And, a proven fraud is not dischargeable in bankruptcy. See 11 U.S.C. Section 523(a)(2).

2. If the bankruptcy has been filed by the Defendant and a stay is in place concurrent with the bankruptcy filng relative to the Plaintiff obtaining the judgment in the District Court, is it then relevant for the Plaintiff to subsequently file Adversarial Proceedings against Defendant in the bankruptcy proceedings seeking a judgment for both the $250,000 plus $6,000, as per the Settlement Agreement; as well as to have the Bankruptcy Court retain said debt as an ongoing undischarged debt, regardless of the remainder of the terms of the balance of the otherwise completed bankruptcy?

A: Actually, I didn't read this question until after I answered your first question. However, now that I've read this question, I believe that my first answer also covers this second question, as well.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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Hello again,

I see that you have reviewed my answer, but that you have not provided a rating. Do you need any further clarification concerning my answer, or is everything satisfactory?

If you need further clarification, concerning this matter, please feel free to ask. If not, I would greatly appreciate a positive feedback rating for my answer (click 3, 4 or 5 stars) – otherwise, Justanswer retains your entire payment, and I receive nothing for my efforts in your behalf. Note: If you cannot find the rating button on your webpage, please just type in your rating in a response to this note, and customer service will apply the rating for you.

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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 39,986
Experience: Attorney and Real Estate Broker -- Retired
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socrateaser and 87 other Bankruptcy Law Specialists are ready to help you
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Customer reply replied 9 months ago
After 2 hrs, called customer service and cancelled the call... waiting for e mail confirmation call was. Ancelled

I regret your difficulties -- moreover, I don't accept phone consults in this forum. I hope that your inconvenience will not affect your evaluation of my service. I will send this Q&A session to customer service if you ask and they can check again for you.

Please advise if that's what you would like me to do. Thanks again for using Justanswer!

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Customer reply replied 9 months ago
No problems.. you written opinion was 100% satisfactory.. phone would have been totally superfluous/unnecessary
Thanks for your assistsnce.
Dennis A. McElrath

Thanks for your kind words and for using Justanswer! Have a pleasant weekend.

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