Complaint to Determine Dischargeability and for Willful Violation

[justbroke]

My local rules requires that every motion be accompanied by a proposed order or risk being dismissed. But I have been through PACER in my district and cannot find a single one of the successful APs that was accompanied by a proposed order. Or at least not such that was filed in PACER. Is this an exception to that Rule? Can I skip the proposed order? It seems logical, yes, but that is not what the rule says. Or.

APs are not contested matters. They are trial matters. As such, there is no "proposed" order included with them.

I'm going overboard, I suppose, in that none of the successful AP complaints in my district seem to be verified or accompanied by a Memorandum of Points and Authorities, but you know what? I have seen JUST AS MANY that were dismissed because they WERE NOT verified or accompanied by P&A. So I'm doing it. Over kill? Maybe. Maybe not. Your thoughts?

You should find out what your District requires. Our Judges in Florida publish their courtroom rules and what the Judges like. Not all Judges like you to submit Memorandum of Law (which is what we call it here), unless the Judge asks for it. They don't like to be inundated with paper. Also, some things they only want submitted to Chambers and not "filed". Yes, this is why Pro Se debtors clog up the system, but most would never even contemplate filing a complaint (Adversary Proceeding)!

I know that I have to file this with the coversheet and summons, but does that mean that I must have the whole shebang served on the parties AFTER I file it? Because it requires an AP case number? Or is it just like when I filed my bk, before I had my case number, I served my matrix? Or am I over thinking things again?

You file the complaint FIRST. The Clerk of the Court issues a summons. (Please check your District. In my District, CM/ECF automatically issues the summons and you can print it from PACER. In some Districts, YOU have to write the summons and submit it with the complaint so that the Clerk can sign it.) Then you also wait for the Notice of Hearing (Scheduling Conference). Together with the Summons, the Notice of Hearing are served upon the defendant within 10 days. This is because the defendant only has 30 days from the filing of the complaint, to answer the complaint or be found in default.

This procedural stuff will kill you if you don't do it right! The defendant will ask for a dismissal for simple issues with service of process which is much more important in the adversary proceeding than I've found in general contested matters.

[tigergem]

Absolutely yes.

Wait a minute. Are you sure about that? I just read a thing. The court allowed the Debtor to retain the award in an AP proceeding because it was deemed independent of the estate. ah fiddlesticks. I know this is important. Now I need to find it again. When I find it again, I will post the content and source.

[tigergem]

I think this only works when it's a clear and documented issue. I wouldn't go the AP/complaint route unless I was positive. I actually thought it would go to trial!

Mine is very clear and highly documented. I would be confident in eventually motioning for a summary judgment, but that doesn't mean I'm not scared. Just a little. Ok. Just a lot. This is scary. After all, it's the IRS. I feel like the proverbial Davida vs. Goliath and I am really really scared. I have 23 pages in my pleading and 18 pages of exhibits, and that's all I really have. Nothing that I could add by way of oral of argument, but DRAMA, and for discovery, well, I ain't got no more.

I covered all of the bases that I thought the IRS could possibly find for a basis for objection. I read in one of your threads that a well argued pleading is the best offense or something like that, and took it to heart, and left nothing out.

I have a couple of questions, and I hope you can or will answer them for me. Even PM would be fine if this is too touchy, but my questions are all procedural. I could call the clerk but she is on one of her "this is why Chapter 13 filers shouldn't file Pro Se" mood swings, so I want to ask here first. Last week when I asked a question, that is what she said to me, and I told her, "Well I'm confirmed and 8 months into having this baby, so it' a little late to change my mind!" But I digress...

My local rules requires that every motion be accompanied by a proposed order or risk being dismissed. But I have been through PACER in my district and cannot find a single one of the successful APs that was accompanied by a proposed order. Or at least not such that was filed in PACER. Is this an exception to that Rule? Can I skip the proposed order? It seems logical, yes, but that is not what the rule says. Or.

What is the RULE or PROCEDURE that I am overlooking on this?

I'm going overboard, I suppose, in that none of the successful AP complaints in my district seem to be verified or accompanied by a Memorandum of Points and Authorities, but you know what? I have seen JUST AS MANY that were dismissed because they WERE NOT verified or accompanied by P&A. So I'm doing it. Over kill? Maybe. Maybe not. Your thoughts?

Ok. Now my other question.

The order of how things occur. I am guessing, because ONLY BECAUSE I haven't finished reading the rules, not that I haven't read the rules, but today I am reading them like a BOOK, one-at-a-time and going over the list and checking it twice...

I know that I have to file this with the coversheet and summons, but does that mean that I must have the whole shebang served on the parties AFTER I file it? Because it requires an AP case number? Or is it just like when I filed my bk, before I had my case number, I served my matrix? Or am I over thinking things again?

Thanks, I really appreciate your help, more than you know.

[justbroke]

I was just wondering...If you were still in your 13 when receiving this would the trustee take your settlement?

Absolutely yes.

[vicmost]

Adversary Proceeding closed! Looks like it was an administrative issue and when I called my case manager, discovered that the Judge's deputy forgot to tell her something. So, it's now closed.

In the end, I settled for about $3K on a willful violation of the automatic stay.

I was just wondering...If you were still in your 13 when receiving this would the trustee take your settlement?

[justbroke]

I think this only works when it's a clear and documented issue. I wouldn't go the AP/complaint route unless I was positive. I actually thought it would go to trial!

[vicmost]

Congrats!

[newbie2]

Adversary Proceeding closed! Looks like it was an administrative issue and when I called my case manager, discovered that the Judge's deputy forgot to tell her something. So, it's now closed.

In the end, I settled for about $3K on a willful violation of the automatic stay.

Phenomenal!!

[tigergem]

[justbroke]

The interesting thing is that the facts were never contested, the defendant defaulted, I was able to have the Clerk enter a Default, the case never made it to the Scheduling Conference, and I was able to settle for 75% of the actual damages I was pursuing.

[tigergem]

Great jb! I'm happy for you! That is sooo cool.

[justbroke]

Adversary Proceeding closed! Looks like it was an administrative issue and when I called my case manager, discovered that the Judge's deputy forgot to tell her something. So, it's now closed.

In the end, I settled for about $3K on a willful violation of the automatic stay.

[justbroke]

Looks like the Court won't consider the motion to dismiss until the preliminary hearing which is next week. I didn't want to appear, but I'm going to appear. It's quite possible that the Judge doesn't like the settlement agreement and wants to hear the case.

[vicmost]

The court has a tickle date and hasn't considered the motion to dismiss yet. This is why the complaint and case is still open. I actually did pretty well with the settlement.

I'm glad you did well with the settlement. I hope you will tell all when everything is finalized...I'm dying to know the amount you actually receive!

It sounds like your just about done with all this BK stuff and your ready to move on with your life....and leave us behind...

I can't say that I blame you. I don't know how you've found all of this time to share with all of us on this forum but I'm sure glad you have! You've been a tremendous help and inspiration. I've always found your posts very informative and humorous. Heck, you've even increased my vocabulary (did I spell that right?)


What I'm failing to say so succinctly is....THANKS!

...or was that succently suctititous....?

[ugghh]

Congrats JB. I never doubted you.