Court changed titling of lawsuit need help!

[montana59451]

On friday we received a court order relating to a case which was included in our bankruptcy. There were 2 sets of defendants ourselves and an equipment dealer. The equipment dealer must have paid the original creditor and the Court then allowed the equipment dealer was allowed to become the Plaintiff. They DID NOT change the case number. Now I have a creditor who was not a creditor prior to filing on 2/25/10, BUT the case # is the same and the amount is also the same. The district court had received my Suggestion of Bankruptcy. Do I need to amend my filing? The amount owed to the original creditor is the same, we just did not include the other defendant as they had nothing to do with the case. the case had just been filed about a month prior to us filing. What do i need to do? We have our continued 341 meeting tomorrow....do I need to tell the trustee...or what am I supposed to do? We filed Pro Se.

[montana59451]

Thoughts anyone?

[Mensa1]

The equipment deal must have cross claimed you in the lawsuit, therein becoming effectively a Plaintiff as far as you are concerned. This action would explain exactly what has happened here.

Relative to your Bk filing, you should have already named the existence of the suit on Form B7, question 4: Suits and Administrative proceedings. If not you should mention the suit to TT and amend your filing; (after obtaining legal advice, because I am not a lawyer).

[montana59451]

No, the equipment dealer did not file a countersuit. It appears that they must have paid the original creditor (which they were responsible to have done 2 years ago but didn't and then denied responsibility). At that point the court allowed them to become the plaintiff (and got rid of original creditor) under the same suit.

Paperwork is going to the BK court to reflect the amendment to this suit (as it is the same case #) but I am not amending my schedules unless the TT instructs me to. I am filing a statement and proof of service (which all involved parties already were served including the court).

[montana59451]

The original suit was already listed on our schedules

[AngelinaCatHub]

This does not ring right. Your bk should toll all sue-able actions in any and all cases. It is too late to do much as tomorrow you have a 341, but after the 341, it would not hurt to either ask the Trustee or better your lawyer, why is this suit in progress?

It does not seem to be an Adversary Procedure that could be done during the bk, but this is not the case.

Unless you have info that could explain all this, I am at a stop as this goes against all that I have learned here and in the laws (the little bit I know). 'Hub

[AngelinaCatHub]

OK, a reread, you are pro se'. You need a lawyer at this time in my opinion. You stated this is a 341 continuance, and that sends a red light in my eyes. Then you have an active suit still in progress. So what has happened? Have you filed outside of the automatic stay due to a failed attempt at bk and outlived the stay?

More info for help would be needed by all to get any advice or opinion here. 'Hub

[montana59451]

well this does not seem right to me either so at our continued 341 I will talk to the TT. we filed pro se but this is NOT an AP, it is simply in the district court where the original suit was filed.

I may have to consult with an attorney over this as it seems to me that this violates the AS. It does not give me an opportunity to Answer it as a new suit, it just gave the new plaintiff the right to take over any pleadings and filings etc. I think they have done something wrong. I called the clerk of court and they said that they had received our suggestion of bankruptcy so I do not know why this is being done. No objections or filings in the BK so far. Our original 341 was 4/5 and continued until 4/19 because TT wanted 2009 tax return and P&L (ours is non consumer Ch 7)

[montana59451]

The stay is still in place and no motions to lift the stay have been filed. I don't think the continuance is a big deal as they really did not want anything but '09 tax returns and the P&L which the TT did not ask for prior to the original 341. the district court clerk said that this was fine. I forgot to mention that there was another co debtor (member of LLC) but this LLC was dissolved last Nov. The original suit dealt with equipment that was purchased by the LLC and guaranteed by the 3rd member. BUT now the co-signor should be out of the deal since the finance company is out of it. Maybe they are looking to go after the other co signor? I don't think they can since the equipment dealer and the co signor had no direct dealings. The co signor only dealt with the finance company which the equipment dealer paid off to become the plaintiff

[montana59451]

OK, a reread, you are pro se'. You need a lawyer at this time in my opinion. You stated this is a 341 continuance, and that sends a red light in my eyes. Then you have an active suit still in progress. So what has happened? Have you filed outside of the automatic stay due to a failed attempt at bk and outlived the stay?

More info for help would be needed by all to get any advice or opinion here. 'Hub

Have not filed outside AS. No previous attempt at BK. Have not outlived the stay.

too late for attorney right now, did not get notified of this change in the case until Friday at noon when the mail came.

[montana59451]

The equipment deal must have cross claimed you in the lawsuit, therein becoming effectively a Plaintiff as far as you are concerned. This action would explain exactly what has happened here.

Relative to your Bk filing, you should have already named the existence of the suit on Form B7, question 4: Suits and Administrative proceedings. If not you should mention the suit to TT and amend your filing; (after obtaining legal advice, because I am not a lawyer).

The original suit WAS listed on form B7 (and it was an unsecured debt because the equipment was already repossessed)

[AngelinaCatHub]

I see: Everything looks on the up and up. The "Suggestion of Bankruptcy" IS the notice to the Court that tolls any action. Either the Judge and attorneys are bk stupid or they are breading the law. This is a Civil case, yes? If it were criminal your Plaintiff would be a DA and that is not tolled.

I have read the legalese of section 362 regarding the automatic stay. Although it is difficult for a non lawyer I glean out of this that unless for fraud or a motion to the Court for good cause, they cannot continue your suit. The only way is basically for three reasons, such as marital judgment (alimony, child support, etc.) fraud, or willful and malicious. You might submit a Court Paper to the Judge with a copy of your Civil docket listing the "Suggestion of Bankruptcy" with the case law section number as reference. Perhaps search Google for case law reference for a similar anomalie as you are having. The bk clearly stops all civil action except for domestic (divorce, etc.) both on Plaintiff's part and Defendants part.

Something is definitely being misused and this could be to your benefit as if you get a Judgment during this Automatic Stay, and the Court has been properly notified as well as re-notify the Plaintiff, you could get it thrown out with prejudice. I would not go pro se' in this case though. It could work for for your benefit in the long run. 'Hub

[montana59451]

Thanks 'Hub. that is what I was able to find. Unfortunately I had no time to get an attorney since I was notified so late. Also, the continued 341 did not notify any of the creditors and we received only an "Oral Notice of Continuance" and Pacer shows the only ones who received a copy in the mail was us.

There are few bankrptcy attorneys in MT and from what I have seen and heard they are pretty ummm....well....hand holders, no doers! I don't know if I could get one to jump in now that we have filed pro se.

I think I will deal with this continued 341 first and then deal with the civil suit.

I would have thought that the original creditor would have had to drop the suit and then if the equipment dealer wanted to sue for what they paid then that would be a new suit. Let's say for a moment that the court dismisses this "new original" suit and the equipment dealer then decides to file against us.....would i be correct in saying that he cannot because he was already notified of the bankruptcy on 2 occassions AND the court would not accept a new suit based on the first because they were notified of the bankruptcy?

You have to understand that Montana is a "challenged" state....they kinda do whatever they feel the need to do and the hell with the system!

The court clerk did say that they were aware of the bankruptcy. I wonder if they left the case # and the title of the defendants the same because of the bankruptcy knowing that nothing can be collected? I don't even have contact info for the new Plaintiff's Attorney (I found it online, that is how I served him) but I don't think that is my responsibility. I will try to get an attorney for this one (it should interest somebody to take my $$$)

[montana59451]

UPDATE! Continued 341 was concluded yesterday with no problems even though the UST was there. He just had a couple of questions related to the amendments in our schedules. Asked the TT what should I do about the lawsuit in civil court and she stated that the court had sent her a copy of it. Said we did not have to amend the schedules because she knew it was the same as the original just new plaintiff. I told her I would be filing the proof of service on all parties again she said that would suffice. I guess we are done!

[AngelinaCatHub]

Thanks 'Hub. that is what I was able to find. Unfortunately I had no time to get an attorney since I was notified so late. Also, the continued 341 did not notify any of the creditors and we received only an "Oral Notice of Continuance" and Pacer shows the only ones who received a copy in the mail was us.

There are few bankrptcy attorneys in MT and from what I have seen and heard they are pretty ummm....well....hand holders, no doers! I don't know if I could get one to jump in now that we have filed pro se.

I think I will deal with this continued 341 first and then deal with the civil suit.

I would have thought that the original creditor would have had to drop the suit and then if the equipment dealer wanted to sue for what they paid then that would be a new suit. Let's say for a moment that the court dismisses this "new original" suit and the equipment dealer then decides to file against us.....would i be correct in saying that he cannot because he was already notified of the bankruptcy on 2 occassions AND the court would not accept a new suit based on the first because they were notified of the bankruptcy?

You have to understand that Montana is a "challenged" state....they kinda do whatever they feel the need to do and the hell with the system!

The court clerk did say that they were aware of the bankruptcy. I wonder if they left the case # and the title of the defendants the same because of the bankruptcy knowing that nothing can be collected? I don't even have contact info for the new Plaintiff's Attorney (I found it online, that is how I served him) but I don't think that is my responsibility. I will try to get an attorney for this one (it should interest somebody to take my $$$)

None the less, bankruptcy is Federal Law. Your Civil law suit should be set aside by Federal Court if it is pursued and they win.

If what you said is as so, they are plainly breaking Federal Law. If you are now pro se' on both suits write a Court Paper stating you are currently in bankruptcy 7, give the date and the docket number of your bk and a reminder that under Federal law the suit is tolled and any action after the date of filing is null and void and cannot be used in a Civil Case as any "discovery" is now taken illegally and cannot be used in a Civil Court of law.
'Hub