Is This Too Good To Be True?

[BKDefender]

I agree that objecting based on a lack of standing (i.e. not the 'party in interest'). Look for some recent MERS cases where they were found not to be parties in interest and there's got to be a lot of case law cited there to kick start your research.
There was a good one that came out of Nevada recently (Joshua & Stephanie Mitchell http://www.nvb.uscourts.gov/Opinions...%20Opinion.pdf )

Good luck and keep us updated.
William

[Dst1]

There was a good one that came out of Nevada recently (Joshua & Stephanie Mitchell http://www.nvb.uscourts.gov/Opinions...%20Opinion.pdf )

Good luck and keep us updated.
William

I thought this case was also worthwhile for the reiteration of the Federal Rules of Evidence that a "bald assertion that one has reviewed the file" is not enough. This seems to come up a lot when someone is sued by a JDB and the debtors response is to challenge their basis for believing they are debtor.

[tigergem]

Something I have run into more than once, trying to research this type of matter is the court stating that it has no jurisdiction over an entity that does not exist.

[dscurlock]

$20k @ 30% on a 2nd mortg?? Thats loan sharking...

her payment most likely would have been high
if not higher then her 1st mortg...

[tigergem]

Books! With citations!

I found this book that reads like an encyclopedia of statutes and case law citations on just about every aspect of corporate law. I didn't see this topic specifically in the preview, but I am willing to bet it is covered in this book.

Macey on corporation laws: Model business corporation act ..., Volume 1
By Jonathan R. Macey and there is a pretty extensive (50 pages or so...) preview of its contents on google books.

http://books.google.com/books?id=3zrt63k2vFsC&printsec=frontcover&source=gbs_navlinks_s#v=onepage&q=&f=false

It seems to be a little dated, but appears to possibly have annual supplements.

And some similar titles... the top 4 or 5 look like they might (maybe) be useful references.

http://books.google.com/books?q=related:ISBN1567063470&id=3zrt63k2vFsC&source=gbs_similarbooks_s&cad=1

The Macey book actually looks to me to be a little more thorough than a book with a similar title by the American Bar Association, Committee on Corporate Laws.

I hope this is helpful.

[MSbklawyer]

Yes, it was too good to be true. On further research I found that the legislature changed to law last session to provide that an administratively dissolved corporation can retroactively reinstate itself at any time. It used to be a 5 year time limit, and that has passed. It would be pointless to file this motion -- they guy will just retroactively reinstate his corporation. Dang.

[tigergem]

Yes, it was too good to be true. On further research I found that the legislature changed to law last session to provide that an administratively dissolved corporation can retroactively reinstate itself at any time. It used to be a 5 year time limit, and that has passed. It would be pointless to file this motion -- they guy will just retroactively reinstate his corporation. Dang.

But what if he doesn't? Doesn't your argument hinge on him actually doing that? And would he go to that trouble for $20k? And... it still wasn't an active corporation at the time of the note, right? Shouldn't that have some bearing on the ability to enter a contract? It is my understanding that an administratively dissolved business is limited to conducting business to conclude it's affairs, not to generating new business. Yes/no?

[MSbklawyer]

But what if he doesn't? Doesn't your argument hinge on him actually doing that? And would he go to that trouble for $20k? And... it still wasn't an active corporation at the time of the note, right? Shouldn't that have some bearing on the ability to enter a contract? It is my understanding that an administratively dissolved business is limited to conducting business to conclude it's affairs, not to generating new business. Yes/no?

Yes, he would actually have to do it, but I know he's not going to let $20K go down the tube when all it would cost to stop it is $150 and a stamp to get his corporation reinstated.

True, it wasn't an active corporation at the time the note was made. It had been administratively dissolved because he hadn't paid his fees. But the reinstatement operates retroactively. It would be like it had never been dissolved.

[tigergem]

But it was dissolved 10 years ago. And he hasn't yet been troubled enough to go do the $150 stamp thing. And do you really think this is the first BK on any note of his? I think the odds are in your favor.

[MSbklawyer]

But it was dissolved 10 years ago. And he hasn't yet been troubled enough to go do the $150 stamp thing. And do you really think this is the first BK on any note of his? I think the odds are in your favor.

I doubt that he has ever been in danger of losing a loan repayment because of his corporation's disolution. There's no way he would stand by and lose 20 grand when all he has to do is reinstate his corporation. It just seems to me that filing the motion would be a waste of time and effort.

This really bums me out. I thought I had him.

[tigergem]

How much time and effort might actually be wasted if you stand a chance of saving the lady's home on the basis of errors, lack of knowledge or non response on the part of the other party? Especially a party that let his business lapse for 10 years. You would be going in with eyes wide open, so you know there is a chance you might lose the motion and can strategize around that knowledge. But it's like the lottery. You have to play to win.

[Dst1]

Yes, he would actually have to do

True, it wasn't an active corporation at the time the note was made. It had been administratively dissolved because he hadn't paid his fees. But the reinstatement operates retroactively. It would be like it had never been dissolved.

You know the case law in your state better than I but I find this shocking. While it may be true that reinstatement operates retroactively I don't see why it would apply retroactively.

In other words, just because it operates administratively as if it always existed it remains a factual reality that at the time the note was signed it was not in existence. I don't see how a mere administrative change can come along and change the facts as you propose.

Edit: another way to attack this is contract law. Typically, a contract is governed by the applicable laws at the time the contract was signed. At the time the contacts was signed there was a five year period to reinstate the corporation. That period had passed in your client's case. So even if the law was changed and he reinstates the corporation now it has no impact of the contract that your client signed.