Writ of Execution questions...

[cowgirlup289]

Should have posted here, as he had an LLC. All business debt was listed, discharged from all.
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Boyfriend’s bankruptcy is over and closed. Discharge was back in July ’10 closed after the Trustee searched high and low for assets related to the company, etc, in January ‘11. He found nothing – and hired another lawyer to assist him. Boyfriend filed Chap 7 personal bankruptcy (listed all the business debt since he was personally liable for same at the advice of his horrible lawyer). He suggested the business would probably be sued, but you’re basically suing a ‘dead person’. We get that. However, Monday night boyfriend notices the constable of our county standing out in front of our gate with papers in his hand. He served him with a writ of execution and said that he would be back on the 19th to seize anything related to the business for the Bank where he had his business accounts. One of which was his truck that he didn’t reaffirm in the bankruptcy and allowed them to repo it last July. The business has no assets, period. Otherwise, the Trustee or their attorney would have found them.

He told the constable he would have his lawyer call because he informed him of the bankruptcy and suggested he was in contempt because the business was dissolved and had no assets. The constable said he wasn’t aware of any of that and, was “counting cows (which belong to someone else), asking about our trucks, trailer, etc.” boyfriend said nothing on the property was his. Everything actually is in my name or his dads. He has a stock trailer which he didn’t reaffirm that I continue to pay for well over a year but it has a loan left on it. The only thing they thought “was” an asset of the business is a low-boy trailer that he hauls with. His lawyer asked us to find the Title to the trailer, telling my boyfriend that so long as it wasn’t registered to the business (which it is not, it is in his name only) they were in contempt and weren’t entitled to seize it.

His lawyer was all jazzed up to file contempt charges Monday night, but last night suggested he may have to give a deposition. I called BS on that. Depositions cost money, who is going to pay for that – just tack it on the 22K they are trying to come after the ‘business’ for already. I don’t think so. His lawyer left the banks lawyer a message, but I told boyfriend if they want to ask questions about anything on the property they can send that request and we will do an affidavit happily. I don’t think we should have to do that, but will. However, wondering what thoughts are on this – thanks to all!!!

[BigJohn]

Didn't your boyfriend have a 341 meeting?

If there was any irregularities, the bank should have brought it up there or before the 341 meeting.

Just because laws are not enforced, I would say the bank is definetely in the wrong.

I guess you could wait and let the bank seize some of your assets and maybe you can have them arrested for theft.

[cowgirlup289]

Didn't your boyfriend have a 341 meeting?

If there was any irregularities, the bank should have brought it up there or before the 341 meeting. Just because laws are not enforced, I would say the bank is definetely in the wrong. I guess you could wait and let the bank seize some of your assets and maybe you can have them arrested for theft.

Big John - thanks for the reply. Unfortunately, my boyfriend's lawyer is the worst, I've had to do a few things on my own. Yes, he had the 341 a year ago, the bankruptcy discharge was in July, it was officially closed (after the Trustee filed a motion to appoint counsel to dig for assets since it was a Chap 7 filing listing all the small business assets), and came to the conclusion, after we provided more paperwork than they could ask for indicating the business was putting out more than it was taking in, that there were 'no' assets. The business used to have trucks in the LLC's name, but they were traded in to this very bank for "one" truck after the employees were let go a few months later. This bank tried to have him 'reaffirm' the line of credit along with that "one" truck if he tried to keep it, and he didn't reaffirm. He cleaned it out and said "come and get it" - and I bought him another truck.

We were told that since the business doesn't file a bankruptcy, but it hasn't been active since the filing and all business debt was discharged, they may try to come after the LLC if it had any assets, and it doesn't. Everything on our property is mine or his father's, but what they're doing is assuming what they "see" could be, but that's still contempt in my book. He just has a lawyer that won't grow a "set" to deal with the bank and the lawyer representing the bank. They would have a right to seize if the business had assets, but they are spending money trying to get through a brick wall. The business has no assets and is dead. We don't feel we should have to comply with anything, they had every chance to file a proof of claim, etc., and had the stay lifted "during" bankruptcy to repossess the truck, but we didn't fight it, after that - what other recourse can they use. Can't come after him "personally" -

His lawyer said he may have to give a deposition. That's when I said BS, I work for lawyers, and depositions cost money - are they going to foot the bill. I told his lawyer he'll sign a sworn affidavit regarding anything they "see" from the street view on the property to inform them, nothing is related to the business - otherwise the trustee would have found it, trust me. However, outside of that, they shouldn't be entitled to, much less threaten (constable), that he'll be back next week to 'take a look' at what's on the property. At what point does it become harassment.

[despritfreya]

Cowgirl,

You asked me to look at this.

Your BF’s attorney was correct in having all business debt listed in his bk. He was also correct that if a creditor sues an entity that is not operating and has no assets, it is suing a “dead person”. Interestingly, this is exactly what I say to my clients.

Assuming Texas laws are similar to my state, and further assuming that the judgment is against the entity and that the lender is seeking to collect against the entity only, the constable would have no right to take property that does not belong to the entity, regardless of the bk. If the vehicles and trailer are titled to someone other than the entity, they can’t be seized. Have your BF get the paperwork in order. Again, I am assuming that Texas law provides for this.

Your BF does not have a contempt action against the bank for violation of the discharge if the bank is attempting to collect against the entity. When there is a question of who owns what, the bank should set up a judgment debtor’s exam and serve it upon your BF as the representative of the entity. This exam, taken under oath, would give the bank the opportunity to ask if there are any assets belonging to the entity and where those assets are located.

Now, if the entity has any assets the entity could file a chapter 7 and your BF could offer to purchase those assets from the Trustee “free and clear” of the claims of any creditor of the entity.

My gut tells me that the Constable will not be back and the next thing that will happen is the issuance of a judgment debtor’s exam. The problem is that you BF is dealing with a Texas “law enforcement” officer. I can tell you from experience that some of them disregard the law.

Keep us posted.

Des.

[cowgirlup289]

First and foremost Des, you rock - and I know I speak for just about everyone on this Board who knows you. ;-)

Thanks so much for the response - I understand what you're saying 100%, however, the business has not been operating and, there are no assets. In fact, aside from the bank account that used to be with this 'bank' (obviously, went OD before the bankruptcy), there were never any assets of the business. He owned nothing outright under the business name. The only potential asset we 'thought' was in the business name, turned out to be titled in his personal name. However, they do not know this, of course, and I understand they are going to do what they can to show this to their client, but what what extent and to what cost, as a deposition or debtor's exam would too have its costs -

We believe the Constable did not have any knowledge of the bankruptcy as to his personal liability, as he was sitting there outside the gate counting cows stating to my BF that he was only entitled to so many. The comedy in that is, they belong to a friend of ours who can only hold so many on his land at one time when they are young, so we have a deal with him where we take so many to feed and fatten up until they are big enough for him and his buddies to rope on. They aren't our cows. Of course, the Constable wouldn't know this, but standing outside of our property "assuming" I would think is a slippery slope, and at what point since I live there (his father and I have gone to great length's to help him back on his feet) does it border harassment? Obviously, that doesn't matter. I suppose.

What I want to know, and hopefully his lawyer (when he's sober, not kidding - it's very frustrating) can explain in layman's terms is, why wouldn't they do a deposition upon written questions so there aren't any additional costs expended, because my BF's response will be two statements to every question they ask: (1) the business is dead, hasn't operated since Jan 2010; and (2) the business had no assets. My BF does not feel he should have to respond to any other questions related to our personal life. They could search high and low, just as the Trustee did (and trust me, I don't have to tell you, he DID), and find nothing related to the business. Except maybe a closed business account - at that bank.

He just wants to know the best way to handle the exam/depo, should they subpoena him for same, which is an absolute inconvenience. At what point do they realize, they are exhausting and expending more costs against a brick wall.

Again, thanks Des - you truly rock!

[despritfreya]

The lender is not stupid. If it decides to proceed with a judgment debtor's exam, the questions will be directed to the entity. What does it own? Does it have any bank accounts? Has it transferred any property? And so on. Your BF as the "agent" of the entity must comply with any discovery requests or face a Motion to Compel. Since there is nothing, it should not be a big deal. Of course, this assumes the lender takes the matter to this level which, is not likely.

As it relates to the Constable, if he was unaware of the personal bk and he was, in fact, executing on a judgment against your BF (not the entity), it is doubtful that he will be back now that he has been advised of the bk.

Play the "wait & see" game.

Des.

[cowgirlup289]

True -
There is nothing, so the responses, should they subpoena him for one, will be basic and straight forward. Nothing, no, no, nothing, no, nothing. Hopefully, the lender won't take it to that level since, it is further expense to them.

That's what I suspect - will play that game...just exhausted by it all, as is he.

Thanks Des. I appreciate it and will keep you posted.

[BigJohn]

I would send the bank a certified letter stating you are not happy with the bank sending the Constable to your property with the intent of extorting money/assets from you.

I would also present a copy of the Bankruptcy discharge papers.

I would also tell the bank they are in violation of the Bankruptcy laws.

[cowgirlup289]

The lender is not stupid. If it decides to proceed with a judgment debtor's exam, the questions will be directed to the entity. What does it own? Does it have any bank accounts? Has it transferred any property? And so on. Your BF as the "agent" of the entity must comply with any discovery requests or face a Motion to Compel. Since there is nothing, it should not be a big deal. Of course, this assumes the lender takes the matter to this level which, is not likely.

As it relates to the Constable, if he was unaware of the personal bk and he was, in fact, executing on a judgment against your BF (not the entity), it is doubtful that he will be back now that he has been advised of the bk.

Play the "wait & see" game.

Des.

Des, update:

My BF's lawyer said the banks' lawyer was somewhat of a "D" - however, he said it is within the law for the constable to be let on the property to 'view' what's out there and make a report for the bank so the bank can decide if there is anything of "interest". Um, the problem "I" personally have with this is, everything on that property, is mine. Or, my BF's father. So he'll stand there and say to the constable, "that's my girlfriend's, my dad's, girlfriends, one horse is mine, other 3 are my girlfriend's" - and is he allowed to go in the house? Even all the furniture, etc. is mine, after I sold my house last year to move in with him, and have been paying the mortgage for over a year now. What I want to know is, how far can this constable go in 'poking and prodding' because it's a fine line between what they may 'think' belongs to my BF and what doesn't, what is mine. I mean, what are the boundaries here? I know it's Texas, but they are walking a fine line. He has NOTHING and I'm starting to lose my cool about it all, because they are a** holes (excuse the language) about it. They didn't want a deposition or debtor's exam - they want a "list" of what's out there. How do they think they can "determine" any of that belongs to him, and what if they want proof - then I get my boss involved to tell them, sorry, he has "nothing" move along. It's getting old and I'm worn clear out already!!!!!!

[cowgirlup289]

I should say not what belongs to him, NOTHING belongs to the old business - and wouldn't they have to show proof, you can't just assume!

[despritfreya]

Yes, Cowgirl, you picked up on the issue on your 2nd updated post. If I recall correctly, your BF received a discharge and the creditor has a judgment against the business. Well, not knowing what kind of business, I must assume that it would be quite obvious that the business does not own household goods and furnishings as well as domestic livestock and animals (unless the business is in the ranching industry).

Unfortunately I would imagine that under Texas law the Constable can enter the home searching for business assets. Your BF just needs to be ready to state nothing belongs to the business. Again, I have to wonder if the Constable will be back.

Des.

[cowgirlup289]

Thanks Des - I swear I get more from you than he does from his attorney, until he's sober. Then he explains things to my BF in layman's terms. Still, I have bigger balls than his lawyer.

It was a concrete business, so yes, there is literally no assets. As previously mentioned, the only thing we thought was an asset (and in the biz name) until we found the title (in his name personally), was a trailer he hauls with which I would think is still "tools of trade". So, the bank's lawyer keeps charging them to pursue this for assets that don't exist (I get that they don't know that), but if they have no proof of same (and the Trustee exhausted every effort plus an appt of a lawyer to assist him and found none), I would think they are walking a very fine line, if they are aware or have been told "I" live there as well. That's why I keep saying, the things they are seeing from the 'gate' (which is about 500 yards away) are all 'assumptions'. None of it belongs to him, seriously. Not to mention, he never had anything in the business name, nor operated the business from his home.

We shall see what the constable does - it's a slippery slope.

[cowgirlup289]

Des and Big John:
Just letting you guys know it should end today - the Constable called my BF and said he needed him to come in and sign a sworn statement that there are 'no' business assets.
Wow, that's what I suggested from the beginning. "How about offering them a sworn affidavit" - I heard "crickets".

Anyway, thanks to you both!! Greatly appreciate it!!! I'm sure there will be 'others', but we know how to handle it - without lawyers.

This forum, truly rocks and Des, you're the best!

[despritfreya]

I am glad it is all working out. See, this forum helps folks end the panic attacks. My hat's off to all posters.

Des.