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What does one have to prove in an AP?

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  • What does one have to prove in an AP?

    Long story short. I am a Defendant in a libel lawsuit that is total and complete BS.

    Plaintiffs have claimed I anonymously posted defamatory content about them on a website, and have produced word processed documents (not printouts from the alleged website) as proof. Through the course of discovery the plaintiffs have refused to produce the correct URL addresses for the site these comments allegedly appeared on, refuse to produce any IP address information tied to me, refuse to state how they know I posted the anonymous comments, and refuse to produce any actual proof these comments were ever actually published and/or viewed by a third party.

    I am filing BK because of this lawsuit and other circumstances. These people are just silly enough to file an AP. If they do, will they have to produce SOME kind of proof of publication/my involvement to succeed? Or will their accusation be enough to get them through on circumstantial "evidence?"

    And for the record...I have absolutely no involvement in any kind of publication of ANYTHING as alleged by the plaintiffs.
    Last edited by coradio; 03-05-2011, 01:04 AM.

  • #2
    Hang on a minute. Don't you have to wait for them to actually get a judgment against you before you can discharge anything related to the suit in BK? Isn't a lawyer advising you?

    It may be a big mistake to declare BK at this juncture--since they might simply proceed with the civil case anyway and get the judgment AFTER your BK goes through.

    In an AP case they generally have to prove that you committed fraud (or that the debt is in one of the other categories that are not dischargable, such as child support, taxes, some student loans, etc.)

    Civil judgments are generally dischargable debts. But it sounds as if they don't yet have a judgment against you.

    Comment


    • #3
      Hi 33ayy.

      I do have an attorney advising me. Apparently a lawsuit can be discharged in BK pre-judgment. If you or anyone else knows something that I or my attorney do not, please do share it...

      Comment


      • #4
        If you file bk the following will happen.

        1. The State Court proceeding will be stayed - stopped dead in its tracks.
        2. The claimant will receive a notice that he/she/it has until ___ day (60 days from your 341 meeting) to file a 523/727 complaint against you in the bk court.

        The claimant will do one of three things:
        a. Nothing before the "bar date" for the 523/727 complaint - claim discharged, or;
        b. Depending upon how far along the State suit is, file a timely 523 Complaint AND a Motion to Lift the Stay to allow the action to proceed in State Court as to liability and, if found liable, bring that finding back to the bk Judge for a 523 ruling on the amount that will survive the bk, or;
        c. Forget the State court and simply bring a timely 523 action in the bk court and sue you there.

        The bk non-dischargeability cause of action would be under:

        523(a)(4) - fraud or defalcation while acting in a fiduciary capacity. (But there must be an express trust or fiduciary relationship for this cause of action so it may not apply.)

        523(a)(6) - willful and malicious injury.

        And, yes, the claimant will have to prove all elements of his/her/its liable claim as well as the higher burden of proving that there was a willful AND malicious injury.

        Des.

        Comment


        • #5
          Originally posted by coradio View Post
          Long story short. I am a Defendant in a libel lawsuit that is total and complete BS.

          Plaintiffs have claimed I anonymously posted defamatory content about them on a website, and have produced word processed documents (not printouts from the alleged website) as proof. Through the course of discovery the plaintiffs have refused to produce the correct URL addresses for the site these comments allegedly appeared on, refuse to produce any IP address information tied to me, refuse to state how they know I posted the anonymous comments, and refuse to produce any actual proof these comments were ever actually published and/or viewed by a third party.

          I am filing BK because of this lawsuit and other circumstances. These people are just silly enough to file an AP. If they do, will they have to produce SOME kind of proof of publication/my involvement to succeed? Or will their accusation be enough to get them through on circumstantial "evidence?"

          And for the record...I have absolutely no involvement in any kind of publication of ANYTHING as alleged by the plaintiffs.
          First my friend, I was sued for five years (causing much of my financial woes). My jerk didn't want to bring me to trial, he wanted to bleed me to death. Mine was for alleged cyber crimes as yours is.

          THEY HAVE NO CASE. First of all, they have to pin the IP address upon the item of libel you are accused of. They have to prove the IP address is truly yours, and this means subpoena your ISP logs with your IP's date and time. They have about 30 days depending on the ISP as the logs are huge, and your record has to be queried out and most ISPs purge every 30 days or the log is programed to "roll off" at that time. There (so far) is no law requiring them to maintain logs of use.

          If they do not have screen prints of this, and from what you say, a non original copy of the accusation, they have nothing at all. I could do the same and point my finger to anyone, but to prove that in fact it is you is very difficult. Both logs from YOUR ISP and the ISP hosting the blog have got to match time and day of the occurrence.

          Yes bk will in fact stay the civil case but YES they can bring an untried case to Federal Court under the Malice section. Not the fraud section. This is an Adversary Procedure. Then the case can be tried during your bk.

          I got four hours to try a five year $190K (my lawyers fees) civil case by a Federal Judge who knew nothing of section 18 (regarding communications crimes).

          If you spent one dollar on the evidence presented, you threw your money away as they need MUCH clearer proof and MUST supply all they know to you or your lawyer in discovery. If that is what they sent, your lawyer does not know Jack about this kind of evidence. Fire him.

          Since I went pro se for the AP, I was allowed to talk to the adversary's lawyer. He knew this was a vindictive situation, and he said to my wife and I, after an hour of talking hunting, fishing etc in small talk, well, Mr. 'Hub, I happen to talk to your Judges clerk (meaning I fish with him) and he has no will to try your case. Would you accept a stipulation to toss this case back to Civil and after the original trial accept that ruling and Judgment either way? THAT is all I expected as he would not bring it to Court for five years, it was victory for us.

          He sat on it another year and both cases were abandoned for lack of prosecution ( see my signature ).

          Do not worry, he is pulling your strings not for money but for spite. Ignore it, or cross file for personal harassment and once the Judge sees the lack of evidence, open your suit and nail his @zz. 'Hub


          EDIT: Des, you are correct, but it would be on 6 only as libel is not fraud. It is malice and unfortunately, cyber crime is still difficult to prosecute. It would be a lucrative thing to get into but the lawyer would have to be a real techie in computer protocols and records tracing. My adversary Jerk defamed us for five years and sued us several times with no real Court action other than incessant depositions. Cost us three career jobs. Much harassment. Well he posted his last post on April fools day 2009, fell to the floor, massive coronary, lost his kidneys and stroked out, died 13 months later. As an Atheist his only belief was Karma. As a Christian I am, I too believe in Karma. LOL. What's your take on this. I'm interested. 'Hub
          Last edited by AngelinaCatHub; 03-05-2011, 09:29 AM. Reason: add on
          If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

          Comment


          • #6
            And i will also add that we were mid case, also as a defendant, AND with a jerk too! When the BK was filed - the COURT automatically closed that case with a "suggestion of bankruptcy" - now we are just waiting for the objection date to pass...

            and i'll add that that date is MONDAY!!! No word from these idiots yet either! Expecting discharge Tuesday next week.... YAHOO!

            I also love your story ACH. We're waiting for a slow and painful death for our jerk too!

            Comment


            • #7
              To all of you who have had these "vindictive" or "harassment" type cases filed against you (where the plaintiff had no evidence supporting his/her claims), can you please indicate if you were successful in having your legal expenses compensated?

              I am trying to understand how common it is for a BK judge to order the plaintiff to pay reasonable attorneys fees.

              I mean, I know it's theoretically possible--but has anybody actually seen it happen?

              Thanks,

              33

              Comment


              • #8
                Originally posted by 33ayy View Post
                To all of you who have had these "vindictive" or "harassment" type cases filed against you (where the plaintiff had no evidence supporting his/her claims), can you please indicate if you were successful in having your legal expenses compensated?

                I am trying to understand how common it is for a BK judge to order the plaintiff to pay reasonable attorneys fees.

                I mean, I know it's theoretically possible--but has anybody actually seen it happen?

                Thanks,

                33

                I was one, and nothing ever went to Court, got no monetary recompense. In a cross suit we did get an award of $11.5K as a sanction as the adversary lawyer lied and was caught. Unfortunately, my very poor lawyers failed to parse the award when the Judge wished to itemize the loss. So I and they lost it. After months of pleading to go forth, I fired them all and withdrew.

                However, the fact that my losses I could no longer endure, I felt freedom from those incompetent people. In the end, my reward was given in new values, and freedom of "things". Now you may not understand, but do not wish ill upon your adversary. Karma goes around. Pray for him in his actions. Ignore much of his spite. He too, will get his reward, by Karma or in my belief, God's will. Do not place Karma at YOUR door. 'Hub
                Last edited by AngelinaCatHub; 03-06-2011, 09:41 PM.
                If I knew it all, would I be here?? Hang in there = Retained attorney 8-06, Filed 12-28-07, Discharge 8-13-08, Finally CLOSED 11-3-09, 3-31-10 AP Dismissed, Informed by incompetent lawyer of CLOSED status, October 14, 2010.

                Comment

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