discharge of lawsuit?

[coradio]

Hi there, I live in Oregon, I have been sued in Nevada for "libel per se" for some anonymous comments that were allegedly posted on a website, although the comments haven't appeared on the website at any point since I was served. I didn't publish anything.

I am filing bankruptcy here in Oregon and I fully expect these Plaintiffs will contest the discharge of the lawsuit. If they were to challenge this would they have to hire an attorney in Oregon to do the work for them? Their attorney is not licensed to practice in Oregon, and there is no reciprocity agreement between the Nevada and Oregon bar associations that I am aware of. Would their current attorney be able to argue to lift the automatic stay in an Oregon court?

[AngelinaCat]

Your lawsuit will not be discharged, but will be 'tolled' for the period of time that you are in Bankruptcy. That means it is stopped dead in its tracks for that period of time. The plaintiff and his attorney cannot contact you or your attorney or the lawsuit proceed any further. Once you are Discharged, then the suit can proceed if the plaintiff wishes to.

If the plaintiff wishes to object to your bankruptcy, and is mean enough, he will hire an attorney in Oregon to file an Adversary Proceeding against you. This is a mini-lawsuit attached to but not necessarily contained within your bankruptcy. They will seek to have any possible existing or future judgment that he may think he can win against you form being Discharged in your bankruptcy.

This sounds very much like the situation we had with an 'Enemy'. Can you provide a few more details?

Welcome to the Forum. Googling a question similar to yours is how we found this Forum in the first place.

[coradio]

I'm confused on one point. If they DON'T come to Oregon to oppose the discharge and it is granted by the court, they couldn't possibly come back and sue me later if it is discharged. Right?

This is all nuts. I retained a bankruptcy attorney who assured me this was dischargeable and then later he became not so sure. I don't want to go forward with this if the Plaintiffs can just turn around and re-sue me after discharge.

[AngelinaCat]

I really cannot answer further without some more details of your case. When was this lawsuit filed? How long has it been in the civil court system? Has it been resolved? Is there a judgment against you? Or were you adjudicated not guilty? What are the statute of limitations in your case?

In our case, the Enemy never took us to trial, and the case sat fallow in the court system for 17 months before we filed BK. After 12 months, the clerk of court should have dismissed it, but didn't. Once the 'Suggestion of Bankruptcy' went out to all of the creditors--also to the Enemy, as technically he was a creditor, he then hired a BK attorney to file an Adversary Proceeding against us. To truncate a very long story, the BK judge did not want to try this AP and sent it back to the local civil court where it belonged with the stipulation that the BK court would accept whatever the outcome from the civil case was.

Again, nothing happened on the plaintiff's end, and the BK judge dismissed the AP for want of prosecution. The plaintiff suffered a massive coronary, and was mostly a vegetable until his death a few months ago.

[coradio]

Angelina,

Is your experience in law or is it as a person who has gone through the bankruptcy process? The only reason I ask is your reference to your opposing party as "the Enemy." I'm hoping there are some people here with a law background who might just feel charitable enough to share their understanding of current bankruptcy code.

[AngelinaCat]

My understanding of it is on a very personal level. My husband and I were victims of a cyberbully/cyberstalker for nine years. Continuing frivolous lawsuits from this person is one of the causes of our bankruptcy. And yes, he filed an AP against us. We had to fight it pro se, because we had no more money to hire a another attorney to fight it.

(I bumped into your post by mistake when trying to reply. Sorry.)

[tcreegan]

Hi coradio,

I think your BK attorney becoming not-so-sure is a good thing. This is complicated, needs research, some precedents, definitely not a yes/no situation.

The BK auotmatic stay halts the lawsuit.
The plaintiff has to decide if they want to proceed in the BK court or Nevada court.
To continue in the Nevada court, they will file a motion for relief from stay.
To move to the BK court, they file an adversary proceeding to prevent the discharge of their potential award.
US title 11 Section 523(a)(6) requires that the plaintiff must show you were willful and malicious to prevent discharge (you intended to harm them)

I think 28 U.S.C. §157(b)(5) determines if the matter belongs in the BK court or stays in the Nevada court. There have been a variety of rulings on this, it may come down to what your local BK court does, need to see how they have ruled in the past.

In Jasmine C. Lewis v. Guy William Cekosh, No. 08-985, Chapter 7, E.D. Wis.; 2010 U.S. Dist. LEXIS 50285 ruled that a personal injury tort claim (such as libel) survived the BK. (bad news for you)

Dont count on the out-of-state attorney strategy, they could be admitted to the federal bar or apply to appear in the OR bk court.

Good luck to you, keep us posted on how this turns out!

Tom in Colo

almost forgot: they can argue §523(a)(6)

[AngelinaCat]

Thanks Tom. I was at work when attempting to answer the OP, and had none of my paperwork available or the ability to research. Our case, which occurred before the case you found, also involved a personal injury tort as per US title 11 Section 523(a)(6).

To the OP: it depends on how mean your Adversary is, as to how far--and how much money he/she is willing to invest in pursuing you.