QUESTION
Can they proceed with discovery while I am in the stay or do they have to file something with the bankruptcy court to do so?
Asked on Mar 02nd, 2014 on Bankruptcy - Utah
More details to this question:
I filed a pro se chapter 7 and a lower court judgment for fraud. At the time of the lower court case I was unable to pay an attorney and I was pummeled by the Plaintiff’s attorney. The lower court case is now in post judgment discovery.
8 ANSWERS
The automatic stay protects you. The judgment creditor has to file an Adversary Proceeding in the Bankruptcy Court alleging the debt is not dischargeable in your bankruptcy filing (i.e., based on fraud). It may be a easy since they already have a state court judgment based on fraud, but they have to file the Adversary Proceeding within 60 days of your creditors' meeting to survive the bankruptcy discharge. The automatic stay is effective until you get your discharge, or the file and ask permission for relief from the automatic stay.
Answered on Mar 10th, 2014 at 8:30 PM
Debt Relief Attorney serving Anaheim, CA
Partner at
Marlin Branstetter Attorney at Law
In order to do discovery the judgment creditor needs permission of the bankruptcy court.
Answered on Mar 10th, 2014 at 8:29 PM
The bankruptcy filing stops the movement of every court proceeding outside of bankruptcy, so you will be protected by the bankruptcy court's "stay." However, a good attorney may simply move the discovery into the bankruptcy process and continue to harass you.
Answered on Mar 10th, 2014 at 8:09 PM
It sounds like the plaintiff would need to ask the bankruptcy court for relief from the stay before they can conduct discovery, but they are likely to get approval in due time so you are merely postponing the inevitable if they already have a judgment against you. I hope you included the plaintiff in your bankruptcy and made sure that their attorney received formal notice of your bankruptcy and of the date and time of the trustee hearing. Most lawyers will respect the bankruptcy stay if they are aware of it.
Answered on Mar 07th, 2014 at 9:16 PM
2 Awards
No further litigation may occur until the creditor seeks relief from the stay.
Answered on Mar 07th, 2014 at 9:16 PM
You need an attorney. No post discovery will go forward without a judgment of relief from stay.
Answered on Mar 07th, 2014 at 5:36 PM
Information provided doesn't create an attorney/client privilege nor constitute an offer of services and is only general responses to hypotheticals
Deborah F. Bowinski
Did you properly list all parties on your creditor matrix when you filed your bankruptcy case? Did you receive the interrogatories before or after your filing date? If you received court-ordered discovery requests before you filed your bankruptcy case you are obligated to comply with the court's order. You risk a contempt citation if you do not. You really need to hire a lawyer. Debts that were incurred through fraud are not dischargeable in bankruptcy. If the creditor files an adversary proceeding in your bankruptcy case they will most likely win if there is already a state court judgment for fraud. Hopefully you also have other debts that can be discharged in bankruptcy. I would hate to learn that you filed the bankruptcy case for nothing.
Answered on Mar 07th, 2014 at 4:06 PM
Personal Bankruptcy Attorney serving West Jordan, UT
at
Robert S. Payne, Attorney at Law
Update Your Profile
The automatic stay in bankruptcy stops all collection activity, including their post-judgment discovery. The hardest part will be trying to file a motion for sanctions with the bankruptcy court by yourself. You may want to threaten them with a motion for sanctions for violation of the automatic stay first, and see if that stops the discovery. If not, you'll need a good bankruptcy litigation attorney to actually sue them for sanctions.
Answered on Mar 07th, 2014 at 4:05 PM