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Hello there, My name is XXXXX XXXXX I had filed for bankruptcy…

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Hello there, My name is XXXXX...
Hello there,
My name is XXXXX XXXXX I had filed for bankruptcy in Nov,2011. In Dec 2011 I had the 341 meeting which went smooth. This is the first time I have filed due to huge losses I suffered from my business that failed during the recession around 2008-2009. Another major reason for me to file bpcy and not wait till I pull myself out was a civil lawsuit that was filed against me, where there were no value defined but it was for negligence and other matter that is 'dischargeable' in the bankruptcy court. I tried to fight it but I exhausted all my savings and had to humbly file the bankruptcy. Now I am facing two hiccups and have some questions that relate to it, the answers which will better guide me how to proceed in this matter:
1.The first hurdle now is that attorney who filed the lawsuit that got me broke, now has filed a complaint in the bankruptcy court. I was just notified via email by the bankruptcy firm that filed on my behalf,I asked for a copy of the complaint but they dont have it as they havent recieved it, I am not in my state for the next few weeks so I dont get my mails timely anymore and I will be flying outside the country for 6 weeks for training for my new job. I am not in any better shape financially yet to be able to afford another lawyer to handle this matter, So i am wanting to understand the process and the solutions that are available, My question being:
1.I understand I have to be served the summons before the time starts for my response, Is that correct? By serving, would it just mean they can drop in mail and consider served? Or it starts from the day I/my bankruptcy attorney are in possession of it?
2.Does the complain hurt my bankruptcy case and affect my discharge abilities?
3.How can I buy time to answer since I am traveling out of the country and am very occupied at the moment, plus it will give me some time to save and invest in an attorney if needed?
4.What can I do to dismiss it? How easy/tough is it to dismiss it?
5.What motives may the attorney have to file the complaint other than hurt my case and bloat his ego, since he knows I am totally squeezed out.
6.Can I fight this complaint without an attorney? How complicated is this?
7.What can be the possible outcomes of the case If I chose to stay mum and not respond to it? Will that impact my bankruptcy discharge?
8.How can I request the judge to dismiss it on harassment grounds as the lawsuit they filed had not much credit anyways?
9.Their clients are not in US anymore, I dont think they can or will want to come back to US anytime soon, and can get the visa for it otherwise, So Can i ask the attorney to produce the client first or any other direction I can take with this?
10.What are my options to appeal in case they get a judgement on grounds of no response from my side? What happens if they get a judgement, Will that lawsuit become active or just the judgement stays? If the judgement is awarded in case of my No response, and the attorney still has to collect it, i am OKAY with that as they really cant collect anything in the shape or form i am in for now.
Please advise.
Thank you for your time.
Submitted: 6 years ago.Category: Consumer Protection Law
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Answered in 4 minutes by:
3/13/2012
Consumer Protection Lawyer: cfortunato, Lawyer replied 6 years ago
cfortunato
cfortunato, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 8,023
Experience: Areas of practice: Landlord/Tenant, Bankruptcy, Consumer Debt
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Customer:

Hi JACustomer,

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Consumer Protection Lawyer: cfortunato, Lawyer replied 6 years ago

Hi JACustomer,

Did the plaintiff get a judgment in civil court - or was the lawsuit still in progress?

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Customer reply replied 6 years ago
No, the plaintiff did not get a judgement nor were any trial dates set, it was in the middle of the process in discovery.
Consumer Protection Lawyer: cfortunato, Lawyer replied 6 years ago

Then the plaintiff's attorney probably filed a motion for relief from the automatic stay - so that the lawsuit could proceed.

1) Service is completed upon placing the Summons in the mail.

2) No.

3) No - this complaint, if the plaintiff prevails, will only grant the relief asked for in the motion - it will not affect the rest of your Bankruptcy case.

4) No - it is not possible to continue proceedings in Bankruptcy court. You do not have to be present if your attorney shows up for court. If no one shows up, the motion will be granted. (The plaintiff will prevail.)

5) A judgment creditor has at least 10 years to collect a judgment.

6) You can oppose this motion without an attorney. It is not difficult, and you should be able to get the necessary forms and instructions from the clerk at the Bankruptcy court.

7) If there is no opposition to the complaint, the relief requested will be granted, but this will not affect the rest of your Bankruptcy case.

8) It will be hard to dismiss with an accusation of harassment, but you could have the motion dismissed by asserting that any judgment the plaintiff would be able to get in court would be dischargable in your Bankruptcy, and therefore the request for relief is moot.

9) The client does not have to appear - only his attorney has to appear.

10) You will be given 30 days to appeal the motion's decision. If this debt is dischargable in your Bankruptcy, it will really not matter if the plaintiff gets a judgment, as any judgment they get can be discharged.

 

I think this is what you wanted to know. If not, please let me know.

Thank you.

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Customer reply replied 6 years ago
Thank you for your responses. The answer to #8 was most helpful.
Can you please check the answers to #2, #3 and #4. The answers
seem to have got a bit mixed up or I was not able to understand them.

Continuing on #8, How likely is the judge going to accept that motion.
8.a)How friendly are they in the court when they have to deal with adversarial proceedings?
8.b)Can the attorney choose to depose me in the court even if i filed a response?
8.c)Can I get extension to answer as I will be travelling? if yes, how long at max?

Lastly to understand this better,
10.a)Can the plaintiff take this lawsuit back to civil court or does it have to proceed in the BK court?
10.b)If the plaintiff's motion is granted, does that mean they get to continue the case in BK court or
get a judgement? Either ways, I want to avoid confrontation as what they may want to depose could
possibly have criminal ramifications?
10.c)Can I plead the fifth in the court if I have to?
10>d) will this be a new lawsuit or continuation of the same previous one? As in can they involve
the same other parties that were named to be deposed in the original lawsuit?

Thank you for your patience, As you see this is a bit complicated than a standard case.


Consumer Protection Lawyer: cfortunato, Lawyer replied 6 years ago

The answers to #2, #3 and #4 are correct. Please indicate what you do not understand about those answers.

8) a) There is generally no friendliness or unfriendliness on the part of the court regarding adversarial proceedings.

b) Not if the plaintiff is asking for relief from the automatic stay.

c) No - you cannot get an extension because you are traveling.

10) a) This lawsuit cannot proceed in Bankruptcy court - it would have to continue in civil court.

b) If the motion is granted, the proceeding has to continue in civil court.

c) This motion may be about a civil court proceeding that has criminal implications, but the motion itself has no criminal implications - therefore there will be no need to assert the 5th Amendment as a defense to testifying.

d) It the motion is granted, it will be a continuation of the lawsuit - not a new one.

 

cfortunato
cfortunato, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 8,023
Experience: Areas of practice: Landlord/Tenant, Bankruptcy, Consumer Debt
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Customer reply replied 6 years ago
Continuing on 10)c)
1.Can the attorney ask to depose me in the bankruptcy court? If Yes, and they chose to, Can i still assert all my rights as i would have in the civil suit? I understand here my position may change as in the civil suit I
am able to defend myself but when i seek for the benefit of a bankruptcy, I cant raise the same defenses?
Please advise in detail or point to an article that I can read in detail.
Thanks
Consumer Protection Lawyer: cfortunato, Lawyer replied 6 years ago

A motion asking for relief from the automatic stay is not the type of AP that requires or calls for the debtor be deposed, so no - the attorney cannot ask to depose you.

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