Desperate for HELP with Bankruptcy and Lawsuit!!!!

[SinkingFast]

Most likely, the Judgement Lien will be placed against your property. Generally Real Estate. The Lien won't be against you personally.

[dbleblanc]

Dbl, I hope you didn't think I was prying into the case--I just wanted to state what was not dischargeable so that you could determine on your own (without having to post it on the board) whether there was even a chance of being discharged.

There are forums on http://community.lawyers.com/messageboards/list.asp which is staffed by lawyers that might be able to help.

There's a lot of "what ifs" in your case which makes it hard to respond to even though we'd love to help and have an answer to everything.

Write down these questions ahead of time for the lawyer--don't count on your memory for when you go there. Put all those "what ifs" on paper.

THANK YOU FOR POSTING THIS URL!!!!!!!!!! Finally something that actually mentions BK, lost to lawsuit, judgement and a hint a how it works.


The Judgment/Garnishment Process


Automatic Stay In Bankruptcy


Thank You!

[dbleblanc]

SinkingFast, thank you for posting that. That does help me understand alittle better. It also helps me decide on what my next move should be. I was starting to think I would just ride this out but now I think I want to visit a Law/BK Lawyer for more advice.

[alh]

Interesting question is that since is was not her or her husband who commited the criminal act, could a civil judgement against them be discharged. Need a good laywer for that one. I would think you could make a good argument for it.

[dbleblanc]

Interesting question is that since is was not her or her husband who commited the criminal act, could a civil judgement against them be discharged. Need a good laywer for that one. I would think you could make a good argument for it.

This is a million dollar question!!!!

[SinkingFast]

I came across a case where the BK Law would not allow for the Judgement to be discharged. But the State the case was filed in had a law that allowed for the debt to be discharged. In that particular case, that particular Judgement was allowed to be discharged in the BK.

The question ALH posed is a good one. Can you and Hubby indeed be held accountable for a judgement as a result of the act of your child. My guess, and just a guess here,....... If your Son was a minor at the time the vandalism occurred, you can be held responsible for his actions. Many times parents are held accountable for Restitution when their minor children commit acts resulting in injury or property damage. But that's gonna vary by State and should be researched in Case Law and Statutes/Codes of Louisianna.

You definitely need to chat with a competent attny who can better advise you in this area.

The suggestion to file Ch 7 before the Judgement Lien is filed and then Ch 13 afterward came from an attny's website. That attny practices in California and deals with similar situations all the time, evidently.

And an FYI for you about the Automatic Stay,...........

You would be under the protection of the Automatic Stay the entire time you're in Ch 13. If your payment plan is 5 years, then the Stay is in place for 5 years.

Ch 7,..... The Automatic Stay only lasts for the 90-120 day period that it takes for the Ch 7 to be processed. If there's some sort of glitch that causes your Ch 7 to drag on a bit, the Automatic Stay could last longer. But once you're discharged, you loose the protection of the Automatic Stay.

[dbleblanc]

I just got a letter in the mail from my lawyer stating:

ABC Insurance(my insurance) filed a Motion for Summary Judgment. The hearing date was set for [date]. There have been a couple of other Motions for Summary Judgment also filed on that date. As you(me) know, our trial date was also set for [same date]. As a result of the setting of the motions for that date, that trial date will be continued. A new trial date will be obtained.

Additionally, I(lawyer) will attend the hearing on the Motion for Summary Judgment filed by ABC Insurance. I(lawyer) will let you know how that turns out.

Should I be worried about this? I know my insurance does not want to pay so this could be their attempt to get out???

[dbleblanc]

Oh... just remembered why that letter does bother me.

If the judge does grant ABC Incurance company their Motion for Summary Judgment which will in turn release them of all responsibility related to this case based on evidence/facts. If this happens I am out of a Lawyer. My current lawyer is paid for by my insurance company up until the point of release of responsibilities. Which will mean that I have to find me a new lawyer to represent me at my expense. (great) I was legally advised back in 2003 not to hire on my own and ride with the insurance paid lawyer to such said time due to finances. I would have been in bankrupt along time ago if I had to pay for 3 years of service and still don't have a pot to pee in. Excuse my french. This case is crawling - makes me wonder what is going on and why I don't know more than I do about this stuff.

But I am working on it! The next lawyer that sits in front of me will have to answer some questions!

[SinkingFast]

That's kinda what I thought from your previous post, but didn't wanna say. I wasn't sure if the Insurance Co was representing you to this point or not. If they were, which they are, then the Summary Judgement would end their responsibility to you in connection with this incident.

The injured party probably isn't paying an hourly rate like you might think. Generally, attnys who take a case like that get paid a % (30%, 35%, sometimes 40%) of the settlement or the Judgement plus costs associated with filing Motions, responding to Motions, and such.

You, on the other hand, will probably have to pay by the hour. Going rate for a decent attny these days, where we live is $200-$300/billable hour, calculated to the next tenth of an hour for the minutes. They are only gonna charge you when they are actually doing something for you. Filing a Motion may be 15 minutes to an hour of their time, plus associated Court costs to file. If you call and chat with the attny for 15 minutes, you might as well shoot the breeze for another 3 minutes cause you're gonna pay for those minutes anyway. Generally, attnys bill every month, or every other month if they haven't done much. But it doesn't take much to run up quite a tab with a decently good attny.

You might wanna spend some time on the phone calling BK attnys in your area. Some BK attnys do only BK's. Some attnys file BK's but practice other types of law as well. You might be served well to find an attny that can attend to both your Law Suit and your financial needs. Can't hurt to chat with 1 or 2 and see for sure.

[dbleblanc]

Thanks to everyone who has been so patient with me. You really did help me. And just so you know I just got an email from a local lawyer in my area that 'does not' specialize in BK but was nice enough to respond to my questions. Here is what he had to say based on the same questions I had posted on this board:

Reply: You should speak to a qualified bankruptcy attorney as soon as possible. Not everyone loses everything in a Chapter 7 Bankruptcy. Quiet often, a debtor can keep most of his assets. It really depends on the circumstances. If a Chapter 7 is not feasible, there are other options.

Whether your debt is discharged also depends on various circumstances. Your bankruptcy attorney should discuss all these issues with you.

I advise you to call an attorney as soon as you can.

[dbleblanc]

And yes I am calling a BK attorney.

[dbleblanc]

I am really excited about this find - it gives me a very wide open range of questions to ask the bankruptcy lawyer. This is or will probably be the core issue that will clarify a large portion. The machanics of bankruptcy and lawsuits????? Hum! Who is right and who is wrong on their facts? I have seen and heard but over the last few days let me tell you... not everyone(my legal advisors) seems to have been right. I so look forward to my next meeting.

I knew that a judgment filing could possibly be an issue in this case without knowing squot about the new or old laws!!!!!!!!!

Again, this is something that we will have to ask the Bankruptcy Lawyer to CLEARLY Explain under the Louisiana Bankruptcy Law even though our case will depend on special circumstances regarding the criminal act issue! Which will be a request of "in addition to" the first response!

This is ONE if not THE Biggest concerns regarding filing bankrupt for us. It apears (just as I thought) that not only will it be a matter of circumstances but also a matter of timing.

This IS based on the New Bankruptcy Laws released in 2005!
Example given - Lawsuit/bankruptcy filing:
Q. I’m being sued by one of my creditors. 1) If I file for bankruptcy, will filing stop the suit from proceeding? 2) If so, how long in advance of the court date should I file?

A1. Yes, the filing of bankruptcy will automatically stop the suit. Rely upon the advice of your lawyer regarding when your bankruptcy case is to be filed. Most, but not all, lawsuits will “go away” after a bankruptcy filing, as the defendant’s debts will be subject to discharge in bankruptcy. If possible, file the bankruptcy case before a judgment is rendered against you in state court.
Answer by Judge David S. Kennedy, United States
Bankruptcy Court, Western District of Tennessee

A2. Yes. There is an automatic stay in bankruptcy cases that immediately prohibits creditors from continuing such actions without getting the
bankruptcy court’s permission. You can file at any time before the date of the applicable hearing in order to stop a proceeding, even moments before if necessary, but the situation becomes much more complicated after a hearing has occurred.
Answer by Shayna M. Steinfeld, Steinfeld & Steinfeld, P.C.,
Atlanta, Georgia

[dbleblanc]

I am so proud of myself - I understand so much more now that it actually freaks me out!

[dbleblanc]

I have found some really go information in this link:

http://www.abanet.org/abastore/products/books/abstracts/235044_ch17.pdf

It has helped me in making my list of questioning to meet with my BK lawyer next week.

[aa06a47]

OK, I was actually a juror on a case very similiar to what you described. On a positive note, don't be so sure you will lose the case. The person suing the parents lost big time. In the case I was on, the defendent was found NOT Guilty. (Only 1 person actually voted guilty)

I have to ask this question....was your son tried and convicted as an adult or as a minor? If he was convicted as an adult, IMO, that means he is soley responsible in the eyes of the law for his acts.

If I were you, and they do end up winning and get a big judgement, I would find a bankruptcy lawyer willing to go to trial on the dischargability of the debt. After all, the law says "

(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;

http://www.law.cornell.edu/uscode/html/uscode11/usc_sec_11_00000523----000-.html

You, "the debtor" didn't do anything to the person suing you. Your son did. You might be responsible for your son, however I would want the court to interpret the rule in the meaning of the text. It also would be helpful if they had tried your son as an adult.

I do feel for the person who was the victum in all this. However, the insurance company that you paid premiums to and the victum's insurance company they paid premiums to should have this all taken care of.