Louisiana Judgment Survival and prescription question
OK still battling the ex. I will keep it as short as I can and to the point and then ask the final questions.
As some of you may remember my other post a while back I have another question and kind of an update so I will refresh.
I co signed the loan as a joint applicant for my now ex wife to get a loan to pay off her credit cards back in 1998. We filed for divorce in 1999 and during one of the hearings we signed a consent judgment on child support, custody, visitation and this loan. I agreed to be responsible for the loan and she agreed to joint custody, no child support with me paying for listed items on a monthly basis and split time visitation. We then got back together and never went through with the divorce. In Louisiana if you reconcile or do not file for a final divorce within 2 years you have to refile and those proceedings are dismissed. We then had a subsequent child proving we reconciled and then split up again and went through with the divorce. When we were together she started not paying any of the family bills out of the joint account and stock piling cash. She also broke the original agreement by filing for temporary alimony and child support which made it impossible to keep payment on anything much less the loan. That loan was one of the things that went unpaid. Later I filed chapter 7 in 2005 under the old laws and got a discharge and the case closed. The creditor found out she was employed and began garnishment proceedings. Here is where it was tricky. She filed a Motion for contempt in the original abandoned proceedings from the first time we split claiming I did not pay the loan. I did not list her on the list of creditors but did list the loan and original creditor but did not list her or her as a joint applicant. So i was released from the obligation of the loan but she was filing for contempt for non payment. The court actually said the consent judgment was still viable which I could not beleive. However the judgment just said I was responsible for the loan and did not specify for me to do anything, have an actual balance, intrest rate or itemize which was joint loans of individual loans as we had several at the same bank. My attorney filed a no cause of action claim saying we do not think her claim is valid. It was at this hearing that the court ruled that the consent judgment was viable but a motion for contempt was not warranted as in order for me to be held in contempt I would have had to violate the judgment and the best the court could do would to say Im still liable for the debt which would over run the bk court. The court ruled since the consent judgment was not written very well that it did not order me to pay anything it just said I would be responsible for the loan balance. Therefore the court could not do me anything which was the exact statement from the court. He did suggest that they may be able to either go back to the bk court and tell them I did not disclose then as a joint creditor and that the bk may or may not be interested and also said they may be able to file a civil suit against me over the debt but may have prescription problems doing that.
So here we are. Even if they filed in BK court saying I failed to disclose them as a joint creditor I'm not reallt concerned with. By the courts ruling that it was a valid consnet judgment I can explain my lack of including her by shwoing the judgment saying I had a vaild state judgment that said I assumed all responsiblity for the loan so therefore ny that consent judgment she was not a joint creditor that even the state judge just verified. I can also prove that even though she was not listed she still was notified and had possession of one of the forms sent out as a notice to creditors to file a claim and she introduced a copy of that form in other legal proceedings before the deadline to file a claim. So even though she was not listed she was well aware of my bk and the need and date to file a claim as she presented in court as evidence in a suit on the exact loan with the original creditor. So by the consent judgment being valid it made me 100% responsible for the debt and therefore I did not violate anything by not listing her other than to screw myself. ALso the original creditor filed a claim and the debt was reduced by them being paid from my assets a portion what they was owed. So by her filing the claim or not it was still the same debt so in fact she was not harmed by not being included.
The question is prescription. As far as I know in Louisiana a judgment prescribes and cannot for any reason be revived after prescription. Prescritption on open accounts is 3 years. A judgment prescribes in 10 years. My first question is would this need a 3 year prescription or 10?
Certain things interrupts prescription. They say it does not run during the marriage, so in this case I assume if I need a 10 year time frame the time the consent judgment would prescribe would be 10 years after her and I actually divorced and it became final. Does filing BK interrupt prescription especially in this case where the judgment was not listed or included in the bk?
I then ask if by her filing the motion for contempt against me since she filed in that case but did not file a motion if that qualifies as intterupting prescription?
The reason is because if this is a 3 year prescription then she has no other method of doing anything. As to file suit she would have to do so and the enforcement of the consent judgment (contract, open account) would require a suit to determine what loans I'm actually responsible for and what balance and interest rate and I would file a no cause of action claiming that her time to file suit to determine this has long past 3 years.
If it would need a 10 year prescription I may almost be there even with the interruption of the marriage as long as by me filing for bk by her filing the motion for contempt did not interrupt the prescription time and start it over.
last but not least if she pushes it the court said the judgment was still valid so therefore i could sue her for the alimony and child support payments which far exceed by more than 10 times what the loan pay off is.
If you guys can let me know my options both with the prescription or by reopening my bk case to list her which I would like to avoid if possible
As some of you may remember my other post a while back I have another question and kind of an update so I will refresh.
I co signed the loan as a joint applicant for my now ex wife to get a loan to pay off her credit cards back in 1998. We filed for divorce in 1999 and during one of the hearings we signed a consent judgment on child support, custody, visitation and this loan. I agreed to be responsible for the loan and she agreed to joint custody, no child support with me paying for listed items on a monthly basis and split time visitation. We then got back together and never went through with the divorce. In Louisiana if you reconcile or do not file for a final divorce within 2 years you have to refile and those proceedings are dismissed. We then had a subsequent child proving we reconciled and then split up again and went through with the divorce. When we were together she started not paying any of the family bills out of the joint account and stock piling cash. She also broke the original agreement by filing for temporary alimony and child support which made it impossible to keep payment on anything much less the loan. That loan was one of the things that went unpaid. Later I filed chapter 7 in 2005 under the old laws and got a discharge and the case closed. The creditor found out she was employed and began garnishment proceedings. Here is where it was tricky. She filed a Motion for contempt in the original abandoned proceedings from the first time we split claiming I did not pay the loan. I did not list her on the list of creditors but did list the loan and original creditor but did not list her or her as a joint applicant. So i was released from the obligation of the loan but she was filing for contempt for non payment. The court actually said the consent judgment was still viable which I could not beleive. However the judgment just said I was responsible for the loan and did not specify for me to do anything, have an actual balance, intrest rate or itemize which was joint loans of individual loans as we had several at the same bank. My attorney filed a no cause of action claim saying we do not think her claim is valid. It was at this hearing that the court ruled that the consent judgment was viable but a motion for contempt was not warranted as in order for me to be held in contempt I would have had to violate the judgment and the best the court could do would to say Im still liable for the debt which would over run the bk court. The court ruled since the consent judgment was not written very well that it did not order me to pay anything it just said I would be responsible for the loan balance. Therefore the court could not do me anything which was the exact statement from the court. He did suggest that they may be able to either go back to the bk court and tell them I did not disclose then as a joint creditor and that the bk may or may not be interested and also said they may be able to file a civil suit against me over the debt but may have prescription problems doing that.
So here we are. Even if they filed in BK court saying I failed to disclose them as a joint creditor I'm not reallt concerned with. By the courts ruling that it was a valid consnet judgment I can explain my lack of including her by shwoing the judgment saying I had a vaild state judgment that said I assumed all responsiblity for the loan so therefore ny that consent judgment she was not a joint creditor that even the state judge just verified. I can also prove that even though she was not listed she still was notified and had possession of one of the forms sent out as a notice to creditors to file a claim and she introduced a copy of that form in other legal proceedings before the deadline to file a claim. So even though she was not listed she was well aware of my bk and the need and date to file a claim as she presented in court as evidence in a suit on the exact loan with the original creditor. So by the consent judgment being valid it made me 100% responsible for the debt and therefore I did not violate anything by not listing her other than to screw myself. ALso the original creditor filed a claim and the debt was reduced by them being paid from my assets a portion what they was owed. So by her filing the claim or not it was still the same debt so in fact she was not harmed by not being included.
The question is prescription. As far as I know in Louisiana a judgment prescribes and cannot for any reason be revived after prescription. Prescritption on open accounts is 3 years. A judgment prescribes in 10 years. My first question is would this need a 3 year prescription or 10?
Certain things interrupts prescription. They say it does not run during the marriage, so in this case I assume if I need a 10 year time frame the time the consent judgment would prescribe would be 10 years after her and I actually divorced and it became final. Does filing BK interrupt prescription especially in this case where the judgment was not listed or included in the bk?
I then ask if by her filing the motion for contempt against me since she filed in that case but did not file a motion if that qualifies as intterupting prescription?
The reason is because if this is a 3 year prescription then she has no other method of doing anything. As to file suit she would have to do so and the enforcement of the consent judgment (contract, open account) would require a suit to determine what loans I'm actually responsible for and what balance and interest rate and I would file a no cause of action claiming that her time to file suit to determine this has long past 3 years.
If it would need a 10 year prescription I may almost be there even with the interruption of the marriage as long as by me filing for bk by her filing the motion for contempt did not interrupt the prescription time and start it over.
last but not least if she pushes it the court said the judgment was still valid so therefore i could sue her for the alimony and child support payments which far exceed by more than 10 times what the loan pay off is.
If you guys can let me know my options both with the prescription or by reopening my bk case to list her which I would like to avoid if possible
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