BK "Memorandum Decision" Capital One alleges fraud.......default judgment

[Widdle]

I originally posted this over in Collections, However, I was thinking it may be helpful in the General BK section as I know this weighs alot on many of our minds.

Mods if this is not allowed, please delete--

BK "Memorandum Decision" where Capital One alleges fraud and non-dischargeability of debt...............




http://www.wieb.uscourts.gov/index.p...wnload&gid=276

[DebtEnder]

So in short a BK judge does will not award a default judgement just because the debtor did not contest it. The creditor has to prove within reason that the debtor had no intent to repay. As the creditor admited in thier own motion that the debtor did in fact make payments after charging the judge ruled that cap one assumption that luxuries were purchased was unfounded and unproven.

I wish regular courts dealing with civil judgements would work the same way. As it is now I could walk into a court files a suit vs someone, make stuff up and if I get at all lucky as the guy makes no attmept to defend himself I get a judgement for whatever I want for the most part.

[Dst1]

So in short a BK judge does will not award a default judgement just because the debtor did not contest it. The creditor has to prove within reason that the debtor had no intent to repay. As the creditor admited in thier own motion that the debtor did in fact make payments after charging the judge ruled that cap one assumption that luxuries were purchased was unfounded and unproven.
.

That's not quite right. In fact, when you look at the 12 part test whether payments were made is not even in it.

The creditor only has to allege facts with enough degree of specificity that a reasonable person could conclude there was fraud to win the default judgment. The judge is not saying there was no fraud, only that the pleading was defective.

Now, I suspect in most cases that lack of specificity is going to be true because the creditor is not going to waste the resources to depose the debtor and go over their cases with a fine tooth comb for a few thousand dollars. But if the amounts were big enough I bet they would.

In fact, given the amount was 10K I'm a little bit surprised that cap one didn't put some effort into it. But I guess that 10K must be small fry as far as they are concerned.

[DebtEnder]

O DST I know there was alot more to it. In short the judge said many of the points cap one brought forth has no evidence to back it up. Just thier thoughts of what occured. Which in most civil cases I have seen will get a judge at local level to happily award a default judgement....