Harassment lawsuit vs. someone in Chapter 13

[disabledbut]

I just filed a slander/harassment lawsuit vs. my soon to be ex-wife and her lover. She filed Chapter 13 last October even though she makes $180,000.yr.
and her lover lives for FREE in my house and has a full time job. ( The morning of the day we had a hearing to collect atty fee's from her ) Well her Bankruptcy attorney sent my attorney a note saying that I am trying to collect
a debt pre-filing and I have violated the automatic stay. I am NOT a creditor so, how am I violating the stay? Also, if you can't sue someone for slander
or harassment in a Chp. 13 then it gives anyone open to season to harass and slander someone all they want.

Can I sue for harassment/defamation when she is in Chp. 13. They have sent my neighbors false lie filled U.S. Mails about me, put notes on driveways and more.

[justbroke]

If this harassment which is causing you to file a non-criminal (civil) case occurred before she filed, then you are in fact a.) a pre-petition creditor, and b.) bound by the automatic stay imposed by 11 USC 362.

If you want to proceed with a lawsuit, you would need to file a Motion for Relief from the Automatic Stay in the Chapter 13 bankruptcy. Did you even tell your attorney that your ex-spouse had filed for bankruptcy or was s/he surprised when a notice of a violation of the stay was sent?

Perhaps you and your attorney should sit down and maybe the two of you should consult with a bankruptcy attorney. You are a creditor. A creditor is quite simply any "entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor". You in fact have a "claim" of harassment and you are probably suing for monetary damages (or some sum certain).

Tread carefully, stay violations can be very punitive.

(Note: if the alleged acts occurred post-petition, after they filed, then the Stay would not be in place. The fact that you filed the lawsuit (claim) itself post-petition could be a violation if it's for a pre-petition event/claim Again, you can Motion for Relief from the Stay and if you have a valid claim outside the bankruptcy, the Judge would certainly grant such relief and allow you to continue your lawsuit in the non-bankruptcy court.)

[disabledbut]

I am NOT on her creditor list and therefore I get nothing. How can I get something from her when I am not on the list? So, I can't sue even though I am getting NOTHING from her Chp. 13? That makes NO sense. So, anyone can harass and defame someone and then they are immune to any punitive damages?

[keepmine]

If she filed in Oct. she had no knowledge of the lawsuit so no need to list you as a creditor.
Expect a communication shortly from the bk court where she has amended her filing and lists you as a creditor.

Justbroke has given good advice. Regroup and do this the right way or you may well be the one writing a check.

[justbroke]

I am NOT on her creditor list and therefore I get nothing. How can I get something from her when I am not on the list? So, I can't sue even though I am getting NOTHING from her Chp. 13? That makes NO sense. So, anyone can harass and defame someone and then they are immune to any punitive damages?

As keepmine wrote, she may not have known you would file a lawsuit for pre-petition harrassment. Please remember that a bankruptcy discharges "all" debt that arose prior to the petition. Chapter 13s are special and I don't want to spend the time with some of the issues, but she could quite easily, now that she knows that you have filed a lawsuit, add the "potential" lawsuit and you to her petition. (Her lawyer is probably all on top of this and her petition is being amended to include you.)

You are a creditor (period). You were a creditor because you have a claim regardless of whether that claim or you, as creditor, are scheduled on the petition.

You can sue her if you seek leave from the Bankruptcy court and the court agrees that your debt is non-dischargeable. If the debt is dischargeable and/or the judge doesn't see that you would prevail, then the judge could deny your motion for relief from the automatic stay. There is a process and you must follow that process. You and your attorney should sit down with a bankruptcy attorney. Again, the debt my be non-dischargeable if it fits under 11 523 which covers non-dischargeability. You and your attorney may need to file a dischargeability complaint. You may also need to file a "claim" in the bankruptcy. The process and procedure should be reviewed with a bankruptcy attorney.

You may have recourse, but you must follow the rules and procedures.

[spidge]

Have you divorced yet? You stated she filed last Oct.(2012?) so wouldn't this be a new debt that she is incurring and not protected by any stay? If you are part of the BK could she be liable for paying you the value of your part of the marital assets? Based on what you state her income is I would think all creditors will be paid back a considerable percentage. Can BK abuse on her part be found?

What a mess, and sorry about your troubles. I have no answers for you but can only throw in more questions.

[disabledbut]

Part of the lawsuit happened pre-petition and some post petition. How can I be a creditor when you have no idea if I will win and how much. She just had to pay 100% of secured and unsecured as she LIED on her income and I told the trustee who got her pay records to show it. So, how can I not sue for money that we have NO idea how much it will be. And then I have to wait 5 years until I can sue? So, someone can defame and harass you and then file bankruptcy and you can't do a friggin thing to them? I have a call with my attorney on Monday but, this is crazy. Chp. 13 is the perfect storm. She ran up her credit cards to the max while NOT paying the mortgage and getting $23,000 in pay a month from her new job and severance pay. Then 2 weeks before she filed she buys a brand new car with $5,000 down and then the day we go for atty fee's she says "Poor me making $180,000/yr. can't pay them as I filed Chp. 13 bankruptcy. WTF??????

[kjrmom911]

I have no answers for you, but I will say that you sound extremely angry, which I get, but it will do you no good in this situation. JustBroke has given you excellent advice. You can proceed, but you do need to follow the rules of the court or you will find yourself in a heap of trouble. Try to leave emotions out of this and no you can not wait 5 years to sue as I am fairly certain there is a statute of limitations. If she is harassing you then you might consider getting a civil restraining order which would prevent her from contacting you and then you would have a recourse if she continues her behaviour. Also, it really doesn't matter how much she makes in a chapter 13. Sounds like she is paying all of her debt back, so if you are added as a creditor and you win your suit then you would also be paid in full.

[disabledbut]

UNFRIGGIN believable. So, Bankruptcy protects you from being a [moderated] in her case? So, it makes no sense. You could be suing somebody for big money and during the case they get a continuance and then file Chp. 13 and you can't collect or you become an unsecured creditor? WTF? The last straw was something they did in June 2013 which was post filing. So, it's pre and post filing. WTF? Bankruptcy is A JOKE. It screws the ones who gave goods services and the like and someone making $180,000/yr. just lies and they don't investigate her income or expenses even after I gave PROOF she lied? The trustee and her atty. said they have to many cases to do that and unless a creditor objects they just let them be confirmed. What a joke. Well maybe I sue her and if they say I owe money I'll go bankrupt. What a joke..

[disabledbut]

Last question and THANKS EVERYONE for your responses. I have a call w/my atty. on Mon. A.M. as he's been out of town since we got her atty's note on Friday. What made me file the lawsuit was actions her and her lover ( who lives In MY HOUSE with MY KID for FREE the piece of crap who went AWOL in the Army ) did in 2013 which were POST filing. They filed a Domestic Violence Injunction ( DVI ) both of them which were DROPPED. they've done that 6 times ALL DROPPED besides a false CPS report and a FALSE police report all dropped. ( the police one the psycho. boyfriend said I pointed a gun at him as my dad and I waited for my wife to come home to watch my kid. I don't drive as I'm paralyzed and I don't own a gun. He waited A WEEK to file it and did the WRONG day. It was dropped but, they wouldn't charge him with filing a false report ) My wife then went to the police and said I violated the DROPPED motion by contacting her with evidence OUTSIDE The timeframe of the temporary motion and the police sent it to the state who charged me. We told them you have NOTHING and my wife asked for a continuance as she said she had more evidence. She had NONE and dropped it. Well it costs me $196 to get transportation each time as I don't drive. That is MALICOUS PROSECUTION as she knew she had nothing and lied. Then the first week of June ALL of my neighbors get a BEWARD NEIGHBORHOOD ALERT about me with sick lies that I point guns at people, that I intercept WiFi and other signals to sue against people and more. Each envelope had the other neighbors as the sender. It's them. That was IT!!!! I paid for ANOTHER atty. as we were having our final divorce hearing in July and filed the lawsuit last month after a long time to get all the stuff together. So, I can't still file one vs. her as it's pre and post filing? This is her lovers 3rd bankruptcy. 1st one was a 13 with his 1st wife ( 96), then another in 2006 he had his wife file Chapter 13 while they were married as she bought property with $214,000 he stole from his dad who told me his son is evil and has disowned him for that. And now my wife is filing the MORNING WE WENT TO GO GET ATTY. FEE'S FROM HER. Think it was planned?

[justbroke]

Part of the lawsuit happened pre-petition and some post petition. How can I be a creditor when you have no idea if I will win and how much.

You misunderstand the definition. It has absolutely no bearing on "how much" of if you will win. The definition of a creditor is in 11 USC 101. It is any entity that has a claim. The claim may or may not have been "reduced" to a money value.

She just had to pay 100% of secured and unsecured as she LIED on her income and I told the trustee who got her pay records to show it. So, how can I not sue for money that we have NO idea how much it will be. And then I have to wait 5 years until I can sue?

Huh? If she is paying 100%, then she is NOT lying. She has been ordered to payback every creditor. If you were smart, you'd be filing a claim and get on the list so that you are paid 100% as well (if she has the disposable monthly income to pay such).

So, someone can defame and harass you and then file bankruptcy and you can't do a friggin thing to them? I have a call with my attorney on Monday but, this is crazy. Chp. 13 is the perfect storm. She ran up her credit cards to the max while NOT paying the mortgage and getting $23,000 in pay a month from her new job and severance pay. Then 2 weeks before she filed she buys a brand new car with $5,000 down and then the day we go for atty fee's she says "Poor me making $180,000/yr. can't pay them as I filed Chp. 13 bankruptcy.

You are not reading anything that I wrote. If you have a claim, which a lawsuit is... noting but a claim until it is reduced to a certain money value... then you file a claim in the bankruptcy. If you want it to be declared non-dischargeable, you do so inside the confines of the bankruptcy. If you want the bankruptcy court to allow you to proceed in non-bankruptcy court in order to obtain a judgment, you do so inside the confines of the bankruptcy. You do not even have a judgment (a claim reduced to a money value). You need to work on obtaining a judgment if it is possible. You must follow the rules of the bankruptcy laws since this claim was created pre-petition. The intricacies of a Chapter 13 bankruptcy could allow you buy a new car just days before filing, and even pay for an attorney with pre-petition non-exempt funds.

I think you're very angry. Try not to concentrate on her money or how she spent it to get into bankruptcy. Denying how the system works or being angry about it will never allow you to clearly see what your next step is. As I wrote, you and your attorney need to sit down with a bankruptcy attorney to figure out if a.) you have a non-dischargeable claim, and b.) whether to file a claim in the bankruptcy, and c.) whether to seek leave from the automatic stay in the bankruptcy.

Let me leave you with this. Divorce is typically a messy business. If you don't let the emotions of YOUR house and HER money cloud your better judgment, you would not be in this place. If you have a valid lawsuit, then you fight it in court and abide by the rules. Bankruptcy is almost always planned after a major event occurs. Some planning is long and deliberate and some is reactionary to a threat of a lawsuit. Please relax and speak with your attorney and contact a bankruptcy attorney. We do not have the luxury of knowing both sides (yes I said that) and the core of this divorce and this complaint (lawsuit).

(If your lawsuit is for willful misconduct, it is possible to have the debt declared non-dischargeable in the bankruptcy. However, and I repeat for the umpteenth time, you need to stay within the rules. You need to seek leave from the bankruptcy stay. You may also need to file a complaint (adversary proceeding) in the bankruptcy. That complaint is known as a Complaint to Determine Dischargeability under 11 USC 523. You would need to prove that the was willful and malicious conduct which arises to a claim that should be non-dischargeable.)

[despritfreya]

UNFRIGGIN believable. So, Bankruptcy protects you from being a [moderated] in her case?. . .

The above is the reason I stayed away from answering OP's questions. My guess is that we will be reading about his next move in the papers or hear about it on the local evening news.

OP, if you want to find out what YOUR rights are you need to calmly and intelligently discuss the issues with a qualified domestic relations attorney and a qualified bankruptcy attorney. The two can work together in an effort to counsel you as to what you can and cannot legally do. The anger you have is not going to help you in any situation and will most likely cause you to make a mistake you will regret later. You have recourse in both state and federal court but you must take steps to get the bk court to approve your actions to proceed in state court and to determine what you can and cannot do to collect should you succeed in obtaining a monetary award against the ex.

Now, take something to calm down and on Monday contact your divorce attorney and find a good bankruptcy attorney who will handle creditor/claimant issues.

Des.

[disabledbut]

OP is dealing with someone who ADMITTED TO PERJURY in our divorce trial.
OP has had 9 FALSE ACTIONS filed against him by his wife and her lover who went AWOL in the Army and was dishonorably discharged who fled to California while he had FELONY charges to face in court until the U.S. Marshall's got him, whose father told me he stole $214,000 from him and so much more. Like a subpoena to Verizon and the Gay Magazine Instinct showing his IP address was used with my name to get a subscription in my name. He is on the lawsuit also but, is hiding from the process servers. He has NO workplace and uses a camera to not answer the door. We got him into court once after 8 MONTHS of trying to serve him.

SO, I have a claim but, no monetary value. SO, I have to see if the court lets me sue her? Yeah, those laws make sense. So, someone can slander, harass and defame you and bankruptcy takes over? Maybe I just continue the lawsuit and play dumb. I have NO MONEY for them to get.

BTW, she is a ***** who cheated on me not once but, TWICE.

[df04527]

You really need to let go of the anger and put your listening ears on. You have been given the best advice for your circumstances by folks who are very experienced AND caring. USE the system to your advantage. If you don't your ex will win.

It isn't that we don't sympathize, we do. We are trying to help you understand that NOW is not the time to let your anger guide you, Save that for later.

[disabledbut]

When you have spent $100,000 of your 401K money, have been in a 4 year divorce, were paralyzed during the divorce, that your wife started an affair while you were in a 3 month rehab hospital stay to learn how to live with paralysis and then she making $180,000/yr. pulls a Chp. 13 to avoid atty fee's and alimony, when you have all that and MORE like her psychopathic boyfriend stalking, harassing and defaming you, when all that happens to you, then you can tell me to calm down.

Maybe I just continue the lawsuit and play dumb. I have $1900/mo. soc. sec. I live on and what else can they take?