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**malf1204** · 09-27-2011, 05:44 PM

What kind of lawsuit is it. Some judgements are not able to be discharged. Why not add the new case to your BK as soon as you file. Just list the Plaintiff and dollar amount as a ?. That immediately stops the lawsuit and if it is a debt that can be discharged the suit can be dismissed as soon as the BK is discharged. You know you can pay your fees in installments.

**justbroke** · 09-27-2011, 05:51 PM

I don't think that you can reinstate a case that has been dismissed for 14 days. An order of the court is considered final and even appeal can be closed off if you don't ask for one in the right time.

You would need to re-file. You will have a new 341 Meeting and new complaint bar date. If you file a new case, you can include the current civil case. So long as that civil case isn't for some sort of liability -- drunk driving or something like that -- or fraud, then it can be discharged before it even reaches judgment. You also need to look at the dismissal order to see if it's with prejudice. If it was with prejudice, you need to wait 180 days from the date of that order before you can file again.

The interesting question is... did this civil lawsuit start before the Chapter 7 or after you first filed Chapter 7?

**peculiar** · 09-27-2011, 06:02 PM

The law suit is over a dispute I'm having with a neighbor over a shared water well and what we think each other should be paying towards it. I actually filed the suit...but he is counter suing. I think I will win the suit...but I just needed to know the options if i lose the case.

Justbroke - I filed the lawsuit AFTER I filed the original Ch 7. Now, the original Ch 7 is dismissed (its been about 3 weeks). The hearing for the suit is in early Nov.

**justbroke** · 09-27-2011, 06:16 PM

Originally posted by peculiar View Post

Justbroke - I filed the lawsuit AFTER I filed the original Ch 7. Now, the original Ch 7 is dismissed (its been about 3 weeks). The hearing for the suit is in early Nov.

Since it is 21 days, I don't think that you can re-instate the case or otherwise seek to re-open the dismissed case.

As for the lawsuit, this appears to be just be some sort of declaratory judgment and not necessarily some sort of monetary award. You are seeking to have a court of equity just tell you who is responsible for what.

**despritfreya** · 09-27-2011, 06:35 PM

The law suit is over a dispute I'm having with a neighbor over a shared water well and what we think each other should be paying towards it. I actually filed the suit...but he is counter suing. I think I will win the suit...

I am not going to comment on whether or not you can reinstate the 7 or whether or not you should. I will only state that if you file a 2nd case you must ask the Court to extend the protection of the automatic stay since you will be a "serial filer".

I am more concerned over your belief that once you file a Chapter 7 you have any right to pursue the claim. While the automatic stay will stop the other side dead in its tracks, your claim against the other side IS an asset and the moment you file a Chapter 7 that asset belongs to the Trustee, not you. Until the Trustee abandons the asset you have no right to continue the litigation.

Des.

**peculiar** · 09-27-2011, 06:45 PM

Thanks guys. Des - where can I find information about the "serial filer" thing? I tried to pay in installments for the original case...but could not afford the continued payments. I applied for the waiver...but honestly don't know why it was denied.

It sounds like I should wait until after the suit is resolved before I should file again perhaps?

**despritfreya** · 09-27-2011, 06:54 PM

Originally posted by peculiar View Post

where can I find information about the "serial filer" thing?. . . It sounds like I should wait until after the suit is resolved before I should file again perhaps?

Automatic stay, serial filer issue. . review 11 USC 362(c)(3).

Yes, you could wait but winning a judgment is not the end of the story. You have to collect on the judgment. If you win a judgment but have not collected on it then the judgment becomes an asset of the bk estate when you file.

Des.

**justbroke** · 09-27-2011, 06:56 PM

How to deal with serial filing is procedural. There are some differences between just what paperwork must be filed, but when you are considered a serial filer (filed within 180 days of another dismissed case as well as some other rules on multiple filing), you must do some first day motions. One of those motions is a Motion to Extend the Automatic Stay. (Since the automatic stay expires 30 days from the filing of your second petition.)

I'm guessing that you filed pro se. If you didn't have enough money to afford the filing fees, the court will usually set up a hearing on the matter. That is where you prove that you are below 150% of the poverty level. If you are applying for the waiver, you generally don't make any payments until you receive the order (and/or hearing) on the matter. If you want to know why it was denied, you should check PACER for the entry of an order denying the waiver.

I don't know what you should do about the lawsuit. I was thinking it was only declaratory and had no monetary value so you could pursue it. I'd defer to Des' opinion on that.

**despritfreya** · 09-27-2011, 07:05 PM

Originally posted by justbroke View Post

I don't know what you should do about the lawsuit. I was thinking it was only declaratory and had no monetary value so you could pursue it. I'd defer to Des' opinion on that.

Even if declaratory I would want the Trustee to abandon any interest the estate might have.

Des.

**justbroke** · 09-27-2011, 07:30 PM

I think that would be the best procedural move, Des... in case it ends up turning into a monetary judgment.

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