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Need Some Help Please on a AP Filing

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  • Need Some Help Please on a AP Filing

    If a person files a AP against our BK in Oregon and it is heard here, and loses (we win), can they then file the same claims in a California Court to try to get an judgement that way, or is it all over?

    I will be meeting today with my attorney on this AP filing, ,which is over a month late and appears that we coulld file a motion on those merits an be sucessful since this filing is about 6 wks past the objection deadline. If we have this case dismissed on the timlyness grounds, ,then they will file in California where the property is in Civil Court.

    So, does the Fed trump the State Court if it is herd in Frd BK court, or can they still turn around and file a civil on me?

    I see the Attorney at one. By the way, there was no service on me or my attorney. I picked up this action that was filed on pacer, and the Attorney just found it on a AP filing report, but also was not served in person or by mail.

    All answers welcomed.

    BooBoo

  • #2
    Did the creditor ever file an objection in your bankruptcy or start the AP before the deadline? If they missed the deadline, then they cannot sue you for debt that is included in your bankruptcy.

    When was the AP started?
    You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

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    • #3
      The filer missed the deadline, and I know we can object and probably win this. There was not request for time extension etc,

      But my question is this: If we decide to answer this complaint and have it heard here in Oregon, we would most likley win and disprove the allegations made in the filing (fraud, larceny, elder abuse, etc) and would probably win this. But if we get a win on these charges, can the person (family of course) who filed these charges refile the same charges in a Civil Court in Calif against us, or is it over since the BK court dismissed those charges as false.

      Also, if we just object to this filing by failing to meet the time limits, are we entitled to recover the Attorney fees of $800 that this is going to cost?

      Comment


      • #4
        If you win the AP, the creditor cannot sue you in court for the same debt.

        If the creditor loses the AP, you might be able to sue them to recover the attorney's costs but it will not be automatic. Your attorney will have to go after them in a separate proceeding.
        You can't take a picture of this. It's already gone. ~~Nate, Six Feet Under

        Comment


        • #5
          Originally posted by booboo View Post

          But my question is this: If we decide to answer this complaint and have it heard here in Oregon, we would most likley win and disprove the allegations made in the filing (fraud, larceny, elder abuse, etc) and would probably win this. But if we get a win on these charges, can the person (family of course) who filed these charges refile the same charges in a Civil Court in Calif against us, or is it over since the BK court dismissed those charges as false?
          BTS is right. It's over if you win the AP. If you sue someone and get a result that you're unhappy with, you can't just move to a different court in a different state and start over again. The legal doctrine behind this is called res judicata. (We lawyers like to say things like that in Latin, because it shows people how smart and noblesse we really are. ) In English it means "the matter has been adjudicated". Here's a link http://www.lectlaw.com/def2/q036.htm
          Pay no attention to anything I post. I graduated last in my class from a fly-by-night law school that no longer exists; I never studied or went to class; and I only post on internet forums when I'm too drunk to crawl away from the computer.

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          • #6
            Originally posted by booboo View Post
            The filer missed the deadline, and I know we can object and probably win this. There was not request for time extension etc,

            But my question is this: If we decide to answer this complaint and have it heard here in Oregon, we would most likley win and disprove the allegations made in the filing (fraud, larceny, elder abuse, etc) and would probably win this. But if we get a win on these charges, can the person (family of course) who filed these charges refile the same charges in a Civil Court in Calif against us, or is it over since the BK court dismissed those charges as false.

            Also, if we just object to this filing by failing to meet the time limits, are we entitled to recover the Attorney fees of $800 that this is going to cost?
            I don't understand how (fraud, larceny, elder abuse, etc) can be heard in a BK court to begin with. This confuses me, as they appear to be criminal charges and not BK related charges. Unless a person is claiming that something is not dischargeable due to these allegations.

            I with the OP the best, but am confused how BK court gets the rights to preside over such allegations.
            Last edited by NoMoreCards; 01-14-2010, 01:40 PM. Reason: typo
            8-07-09-filed Chapter 7
            11-18-09-DISCHARGED!!

            Life is not what challenges you face, but how you face those challenges.

            Comment


            • #7
              Originally posted by NoMoreCards View Post
              I don't understand how (fraud, larceny, elder abuse, etc) can be heard in a BK court to begin with. This confuses me, as they appear to be criminal charges and not BK related charges. Unless a person is claiming that something is not dischargeable due to these allegations.

              I with the OP the best, but am confused how BK court gets the rights to preside over such allegations.
              This question is relevant to my situation and one I've been wondering. We're currently in an AP where we are challenging the dischargeability of our debt created from fraud, larceny, and defalcation from a dissolved corporation where we had 50% shareholder status. The defendant was the other 50% shareholder and the sole officer. Obviously, we're trying to prevent the dichargeability of the debt we were sued for or collected on because the debtor was raiding the corporate accounts instead of paying the bills.

              Not surprisingly, in discovery from bank production, we've encountered much more embezzlement and larceny than we expected. So not only are we out the debt created from the debtor's stealing, but also that what we didn't receive nearly what we should have from dividends over ten years.

              We're wondering if we can file a suit in state court (or whatever proper jurisdiction) for the 50% profit that the debtor stole that we were unaware of until discovery in this AP? Aside from the automatic stay, are we prevented from pursuing such a claim simply because they filed and named us creditors? On their schedules, we are only specified as creditors for the Promissory Note which only includes the corporate debt we were personally sued or collected on.

              Comment


              • #8
                The Fraud, Larceny, Elder Abuse is a result of a 2nd home that was bought for my mo-in-law- to live her years out in....without going into a disirtation, the relative that was caring for her decided he wanted to stay in the home and claiming that this home was suppose to be part of a trust, however this trust never existed and he has filed numerous actions against us and putting this home on the courts docket.

                We could not continue payments on the 2nd mortgage we had on the home as we tanked with the economy and were forced to file a BK, we included the home and both mortages (1st & 2nd). He has an ongoing probate, but has filed a AP on our case to exempt the mortages claiming the above.

                I know this might be a bit confusing to you, and to tell you the truth, confusing to us, but he filed this AP.

                The AP was filed 5 weeks to late, and we saw our Attorney today and if we can, we will try to get the BK court to accept this case (they tend not to want to try civil), as if it dismissed he will just file a civil suit in Calif and I would rather fight this in our backyard and have him do the travel etc.

                Besides, a Federal Court would be better than the liberal So Calif Courts that seem to let anything go on, and on, and on, like they have already on this and has only cost us $$$$ in fees.

                Hope that helps...

                BooBoo

                Comment


                • #9
                  Booboo, thank you very much for taking the time to spell this out including your case specifics to help me to understand. I feel for you, that is one tough spot to be in. I have to agree it might just be best to get this over and done and put it all behind you and to do it in your own back yard seems logical and smart.

                  I do not have any advice to help, but my thoughts are with you.

                  Thanks again
                  8-07-09-filed Chapter 7
                  11-18-09-DISCHARGED!!

                  Life is not what challenges you face, but how you face those challenges.

                  Comment

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