BK Adversary Proceeding Woes & Questions

[threegmgs]

[HHM]

Regarding the procedural aspect of your question...

The adversary proceeding is NOT separate from the BK because the AP takes place because your husband filed BK. However, the "normal" aspects of a BK proceed notwithstanding the AP, thus, you can receive your discharge and still have the AP going ongoing. That is just how it works. The objection PUTS the discharge of THAT particular debt on hold, but the rest of your BK proceeds as normal.

As for the other issues, you only have 2 options, fight or settle. The AP is not going to "retry" the underlying case. The only issue the BK judge will be interested in is the nature of the judgment against your husband, i.e. was the actual judgment for fraud, etc. Also, not to be judgmental...but as cynical as we like to be about the justice system, the fact of the matter is, 9 times out of 10, the right person wins the case (especially if the case is overturned on appeal), so you may need to take off the rose-colored glasses regarding this case.

As for an overview of the process of objections, read this http://www.bkforum.com/showthread.php?t=20078

[threegmgs]

No false hope here; Only Worries.

Rose colored glasses? I'd think you'd "see" from my post that I certainly don't hold false hope. My husband & I still "believe in" his original case, & we feel that we were failed by the court system in that regard. This is the reason that I DON'T wear rose colored glasses.

Regardless or whether my husband won/lost the case on appeal, when he did lose, it wasn't b/c of FRAUD. So, let's just ASSUME that is true: Wouldn't the judge then say that particular part of the BK will still be discharged?

Thanks for the info on the rest. It does help.

Regarding the procedural aspect of your question...

The adversary proceeding is NOT separate from the BK because the AP takes place because your husband filed BK. However, the "normal" aspects of a BK proceed notwithstanding the AP, thus, you can receive your discharge and still have the AP going ongoing. That is just how it works. The objection PUTS the discharge of THAT particular debt on hold, but the rest of your BK proceeds as normal.

As for the other issues, you only have 2 options, fight or settle. The AP is not going to "retry" the underlying case. The only issue the BK judge will be interested in is the nature of the judgment against your husband, i.e. was the actual judgment for fraud, etc. Also, not to be judgmental...but as cynical as we like to be about the justice system, the fact of the matter is, 9 times out of 10, the right person wins the case (especially if the case is overturned on appeal), so you may need to take off the rose-colored glasses regarding this case.

As for an overview of the process of objections, read this http://www.bkforum.com/showthread.php?t=20078

[threegmgs]

Pro Se

Guru,
What are your thoughts on his doing this w/o a lawyer? It really puzzles me. Thanks.

[threegmgs]

One more thing...

This guy will never "settle."

[threegmgs]

[threegmgs]

[HHM]

Let's back up...have you spoken to your BK attorney about this situation?

Unfortunately, your questions are too specific to your circumstance such that there is no way anyone here can answer them and have those responses be anything other than wild speculation.

1. As to why this person is not using a lawyer...who knows? (1) maybe he has a large ego, (2) maybe any respectable lawyer refused to take the case.

2. As to why other lawyers said it would not matter...who knows? (1) maybe you shared more information with those lawyers than you are here, (2) (more likely), most non-bk lawyers don't know anything about BK.
The fact of the matter is, if the objection is upheld by the BK court, this guy will have a judgment against your husband that can NEVER be discharged, and thus, this guy will be able to put liens on your property, garnish wages, etc, until the judgment is paid in full, plus fees and interest.

3. Discovery: Well, in every AP, some evidence must be gathered. My guess is, since this person is representing himself, he is probably over-reaching with his discovery requests.

AT THIS POINT, you must get an attorney to help protect you and try to quash this objection. The cost of not doing so (especially if this guy is the jerk you say he is) will be huge if you don't.

[threegmgs]

[HHM]

It’s actually been bankruptcy attorneys that have told us, in general, if someone objects to their portion of the BK, oh, well, they’re SOL.

Well, that is SIMPLY NOT THE CASE. If the judgment creditor has grounds for the objection, and the objection is sustained by the BK court, you now have a permanent liability to this person until it is paid.

[threegmgs]

Why

Can you tell me why a judgment would NEVER be discharged? I thought judgments went away after 10 yrs. Would this be b/c it would specifically have been DENIED a bankruptcy discharge?

[HHM]

1. Yes, judgments may eventually expire, BUT, nearly all states have a mechanism to renew judgments (i.e. just filing out some forms). You will need to check to see if your state allows renewing of judgments.

2. Yes, if the court declares the debt non-dischargeable, then no future BK can resolve the issue. The debt is, effectively, permanent until paid.