Can I File a Counter-Suit During an Adversary Proceeding?

[justbroke]

If he already answered, perhaps he waiived his right to counterclaim?

From what I know now of prosecuting a Complaint, any counter-claim must be in the answer. Otherwise, you'd have to motion for leave to amend the answer.

The real question is, is it a separate cause of action. In other words, does it stand on its own anyhow, and could be brought as a separate cause?

[Dewey]

The OP stated that he was in the middle of the AP. It was my understanding that any counterclaim must be filed at the time of the Answer. At least that is what my local rules state.

If he already answered, perhaps he waiived his right to counterclaim?

[iv65536]

Did the assault happen after you filed? If so, you may be able to argue the assault in the context in which it occurred constituted collection activity and is thus a stay violation.

[justbroke]

Anyone know how to file criminal charges in an event like this?

You would file a police report with your local municipality or, more appropriately, with the police that have jurisdiction at the location where the assault occurred. Then file for a TSO -- temporary restraining order. Later get a permanent restraining order against this person.

In these events, it is the State's Attorney or District Attorney that prosecutes crime within your State. This would proceed inside the criminal division(s) of the Court based on the type of assault (simple versus aggravated, etc).

[tigergem]

ummm... I guess if I was in your position I would call the police and ask them. I thought if you filed a police report, they handled the whole process? yes/no?

[BMGinFlorida]

I don't know. Unless you have absolute proof that this is related to the debt... violation of the stay seems like a stretch. I think you should file a police report and proceed that direction.

Thanks. Actually, I have filed a police report. What would be my next step in filing criminal charges? I thought that had to be done by the police or DA.

justbroke - Thanks, you are probably right. The bk court probably doesn't want to hear it. The judge seems like she doesn't really even want this current adversary proceeding, so I could see her tossing this out over improper venue. The threats and assault, though, were directly related to the debt, since that's what he was threatening me about.

Anyone know how to file criminal charges in an event like this?

[tigergem]

doh. jurisdiction and venue. Why didn't I think of that? Good call justbroke. (Per usual.)

[justbroke]

You have to look to the jurisdiction of the Bankruptcy Court which comes from 28 USC 1334. An assault would easily be dismissed for improper venue and kicked to non-bankruptcy (and likely, non-Federal as well) since it's not a "core" or even a "non-core" proceeding! When you file a complaint, the first thing you need to do is allege that the Bankruptcy Court has jurisdiction in the matter. This is why a lot of "foreclosure" related relief from stay motions are granted, because the Court really doesn't want to be in the foreclosure business, unless a genuine issue of standing comes in to play.

That your creditor assaulted you, is inconsequential to a bankruptcy matter... in my opinion. I don't know that the Bankruptcy Court wants to hear an assault case.

[tigergem]

I don't know. Unless you have absolute proof that this is related to the debt... violation of the stay seems like a stretch. I think you should file a police report and proceed that direction.

[helpmeout]

Why not just press criminal charges against the creditor?

[BMGinFlorida]

Thanks for the response.

So, I CAN file a counter-suit, right? It costs me nothing to file a counter, and it will certainly muddy up the waters for them, which is my goal at this point.

Here's the connection... The debtor is an individual whom I allegedly owe money to. In his anger over me (possibly) personally owing this money to him, he confronted me in a parking lot and assaulted me.

This is directly linked to the debt, and was the debtor's direct reaction to said debt ... without the debt, there is no assault and battery.

I just wanted to know if I can file in bk court. I know I can in civil court.

[HHM]

You can always allege it, but it would probably get kicked by the BK court. Reason being, what does assault have to do with a debt?

Counter-claims need to be related in some manner to the underlying action (objection to discharge of debt), I am at a loss for how an assault claim would be related.

[BMGinFlorida]

I am a pro-se debtor in Chapter 7. I am in the middle of an adversary proceeding from one of my creditors, objecting to discharge.

My question is procedural. I know if I am sued in civil court, I can file a counter-suit.

Can I file a counter-suit when it is an adversary proceeding in bk court?

My counter would be for assault, if that is relevant.
Thanks for any responses