Answer and Motion to Dismiss

[montana59451]

Had an AP filed against us to determine dischargability. Do I need to file the Answer seperately or can I include the Motion to Dismiss in the same filing?

[HHM]

You can do both at the same time, but it is two separate documents.

What are your reasons for the motion to dismiss?

[montana59451]

This AP comes from a default judgment which a party who sued for an unpaid balance of equipment which was sold to them. THEY did not pay the equipment finance company when demanded but sued the LLC (which no longer exists) and the LLC member who signed the bill of sale.

A representative of the LLC signed a bill of sale prior to their [the buyer's] payment clearing and then paid to original creditor the amount we believed to be owing. The bill of sale was not generated by the LLC (seller) but instead generated by the buyer.

Buyer had been told that there was a balance owing on the equipment which would be paid off when buyer's payment cleared. Buyer stated needed bill of sale signed to transport equipment home. Bill of Sale was signed only by LLC member, not notarized or signed by the buyer, nor was there a mention of purchase price.

Heard nothing from equipment finance company and then 1 year later heard from buyer who claimed still a balance owing. Checked with finance company and there was. In the mean time buyer sues LLC for the balance owing and alleges fraud on part of LLC member who signed the Bill of Sale. They get default judgment as we were not home to receive service (served former registerd agent who resigned some time before and she did not inform us).

Buyer makes no collection attempts and all attempts to contact their attorney go unresponded to. It has been 1 year since they got judgment.

Now here it gets dicey....equipment company then sues LLC for the unpaid balance AND the buyer (who has the judgment). That case is still proceeding (although nothing has been done with the case since 1/26/2010.

Basis for Motion to Dismiss is:

Plaintiff (buyer) received an un litigated default judgment therefore no basis for fraud against member who signed in representative capacity

Plaintiff did not pay equipment dealer and thus equipment dealer is still suing LLC and the one member who is actually the secured party (not the member sho signed bill of sale)

Plaintiff did not attend 341 meeting (although that does not preclude him from filing this suit, it shows they were still not making any collection attempts)

Plaintiff filed only after the notice of assets was sent BUT if he looked at the case on PACER he would have seen that it was for a tax refund of $1768 (which was an EIC and fuel tax refund)

The signing member of the LLC's sole source of income is Social Security Disability which cannot be garnished. Plaintiff would have known this fact had they attended the 341 meeting.

Plaintiff is NOT a collection agent for the equipment company and therefore has no right to attempt to collect on their behalf. Not only that the equipment company is suing them as well (so if BK is dismissed or something then defendant would be paying for the same thing twice with Plaintiff receiving money for nothing?)

I think they are just doing this to be mean. This is the only creditor who has complained or done anything and the 60 days is up. This one creditor filed this 9 days prior to the 60th. Not even the equipment company filed anything.

[catleg]

So put this is English for us.

You sold a guy a piece of equipment that was financed, he didn't pay the balance due to you guys. So you never paid off the vendor/finance company

I'm guessing he took equipment for service that's how vendor/finance company knows who has it.

So now they're suing you and him to get the money owed for the original financing.

And so this bozo is suing you in the AP, on what basis?

I think you need a lawyer dude.

[montana59451]

Yeah, that't what I think, but I can't afford one

[HHM]

Can't or Won't. 9 times out of 10, it is later. Many attorneys have ways to make payments etc., people who file pro se (especially the ones that get themselves into trouble) simply get sticker shock and immediately assume they cannot afford it, and therefore never try to think of a way to do it. Then the BK ends up costing them much more than the initial attorney. (i.e. my sense is, if you lose this AP, the amount involved will be several times more than what you would have needed to pay an attorney to figure this out a head of time to avoid an AP).

[montana59451]

The AP is for $8663 I talked to an attorney who told us it would cost that much and then some for him to take it (basically $10,000).

It would seem to me that since they filed the AP against my wife who only gets SSD (then they can't touch that anyway) and the dissolved LLC what would they get in the long run?

[montana59451]

Never thought that this would even be an issue because creditor never made a collection attempt, would not return phone calls trying to settle never went to 341 meeting nothing, so I did not think this would ever be an issue.