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The AP Filed Was Dismissed, They Now are Taking to Civ Ct

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    The AP Filed Was Dismissed, They Now are Taking to Civ Ct

    Any insight would be very helpful. This as the Forum remembers, this has been an a journey, but last Thurday the Judge in the AP filed against us dismissed the case because of failing to meet filing time limits. Here is a short insight to what this case is about. The creditor has made overtures that they will now move on to the Calif Civil Court on the same basis and I want to know if we will be able to use the ruling of the BK court to protect us. Here is the circumstances in short order without getting to runny with my mouth.

    my wife and I bought a home in the PS california area for her mother to live her life out with. This home was bought from the estate of her late husband when he passed away so that she would have something to leave her children when she passed. My wife and I bought the home as she had no money to do so. This at the time was the best way to go, as her spouse's children only wanted to give her a life estate since the home was fully paid for when they married. We negotiated this and bought the home from them for what the home was worth when they married.

    One of the brothers stayed with mom during her final 4 years then she passed. At that time I discussed with him that the home was to be sold and the proceeds to be split between the 3 children. Then he dug in and refused to allow a sale and started filing lawsuits for Larcenay, elder abuse, not protecting and adhearing to fidiceary duty etc. We even went before a mediater on this case and all agreed to a $$ amount that this brother was to pay the other 2 sibilings to retain full ownership of the home assuming he wanted keep it for himself. The next day he refused to sign the agreement and filed a petition with the probate court to become administrator of her estate, but it was denied at that time because of concerns of his moral core.

    In the meantime, the economy tanked and my wife and I could not afford to continue to make payments on the 2nd we took out on that home 2 years prior, and we were forced to file a Chap 7 BK. This is what all these trumped up carges are about, and they claim that we had no right to take out this 2nd mortage, thus embezzeled from the estate. The deed on the home is in my wifes and my names only, and they are claiming that this home was going to be put into trust for her, but that her mental state would not allow it, so it never happened, so part of the charges was to have this home be put into a trust.

    My BK was commenced on 7-24-09 and this brother was noticed as a creditor because of the home, but he was not appointed as administrator until 9-6-09, but before the 10-24-09 objection timeline.

    His objection was not filed until 12-21-09 and his reasons were that the Estate was not noticed. The BK Judge in the dismissal of this case cited that although the Estate was not noticed, the party that was appointed as administrator was(brother) and it was their duty to object within the time frame by 10-24-09. Thus the case (AP) was dismissed. Also noted by the Judge was that the Representive for the Estate compromised with the Trustee to avoid litigation on wether this home belonged in a Construtive trust, the Trustee sold my wifes interest in the property to the Estate for $3000, which consisted of all liens and encumbrances etc, to avoid the cost of litigation.

    My question is this and all input is very much appreciated......If they now file an action in California (which they will) as they are trying to do a "Legal Theft" can I "hide" behind this AP Ruling (dismissed) and his agreement and bought the rights of my wifes equity from the Trustee?

    Any insight will be helpful as this is very nerve wracking.

    BooBoo

    #2
    If this was already resolved in your favor in Federal Bankruptcy Court, I can't imagine it can be brought up again in a state court. It might be worth you meeting with your bankruptcy attorney and getting his advice, even though you would have to pay for this meeting. Good luck!
    Filed Chapter 7 July 2010
    Attended 341 September 2010
    Discharged November 2010 Closed November 2010

    Comment


      #3
      The only resolve was that they missed their time frame for filing their Adversary Proceeding, so it was dismissed. They will file a Civil Suit on the same, but I think that the BK ruling will work in our favor?

      BooBoo

      Comment


        #4
        If your bankruptcy was discharged, that's that. Nothing can be done about it. If the adversarial proceeding was dismissed, that's too bad for the adversary. They can try to go to civil court, but if the debts are discharged, there is no case.

        Unless there is some angle that you don't know about.

        Comment


          #5
          they can't sue you for something that was discharged in bankruptcy. that would violate the bk code and they could be found in contempt. the fact that the AP was dismissed "only" because it was late will not help them.

          the only way for them is to try to appeal the bk judge's ruling about the AP. but it doesn't sound like they have a leg to stand on. they will be wasting their time.

          if they do file a lawsuit in state court, get your bk attorney to file for contempt in the bk case; they will have to pay your attorney's fees plus damages for violating the bk code.
          filed ch7 May 09
          341 june 09
          discharged, closed Aug 09

          Comment


            #6
            I think what BooBoo is saying is that the judge didn't consider the merits of the substance of the AP, rather he dismissed it because it was filed late.

            The BK discharged him of the debt related the bank loan against the mothers home, but he expects a lawsuit from the step brother for the alleged fraud (which the BK judge didn't even consider).

            My best guess is that the BK dismissal of the AP, will have no bearing on his ability to sue for fraud commited before the BK.

            In general does a BK preclude someone for suing you for something that happened before BK was filed? Can you pre-emptively file BK to avoid a lawsuit for some type of fraud or theft? I don't know the answer. But if yes, then you are ok, If no, then he may be able to sue.

            Good luck either way.
            Wife Laid off - 11/16/2009 Missed First Payments - 12/5/2009
            Filed Chap 7 - 12/31/2009
            341 - 2/12/2010
            Discharged - 4/19/2010

            Comment


              #7
              i think before they can sue for fraud they have to prove to the bk court that it was fraud and therefore nondischargeable. they had the opportunity to do that by filing an AP objecting to the discharge on the basis of fraud, but they were late. so they missed their chance. i don't think they get to try again by going to state court.
              filed ch7 May 09
              341 june 09
              discharged, closed Aug 09

              Comment


                #8
                Originally posted by music12 View Post
                i think before they can sue for fraud they have to prove to the bk court that it was fraud and therefore nondischargeable. they had the opportunity to do that by filing an AP objecting to the discharge on the basis of fraud, but they were late. so they missed their chance. i don't think they get to try again by going to state court.
                You may be 100% correct, but I don't think the brother is now objecting to the discharge. He is going to sue BooBoo for taking advantage of the mother. He is suing for something that is not really related to the BK.

                I may not be understanding it correctly or I may just be plain wrong, but it sounds like the AP was an attempt to keep BooBoo from being discharged of the mortgage on the mother's house (because the brother doesn't want it to be foreclosed on). That failed due to late filing. Now he wants to sue Booboo for fraud/theft from the mother. It may be prevented by the BK, but I really don't see it being covered by the BK court. It would be state law that would govern the alleged theft, not the federal BK court.

                He really needs good attorney, I'm just making observations, not giving advise.
                Wife Laid off - 11/16/2009 Missed First Payments - 12/5/2009
                Filed Chap 7 - 12/31/2009
                341 - 2/12/2010
                Discharged - 4/19/2010

                Comment


                  #9
                  The question is, what rights did (a) mom or (b) brother have in dad's home.
                  That would be an issue decided in probate court.

                  Let's assume that a legal transfer occurred of house from dad's estate to OP.
                  That would seem to be a prerequisite for a title search to permit OP to borrow anything using the home as collateral.

                  I just don't see the brother having any leg to stand on.

                  He should probably be stopped from talking to any more attorneys to protect his remaining assets. That's where the other 2 siblings come in.

                  I'm guessing they're sick of the paranoia and just wanted to move on.
                  filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

                  Comment

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