QUESTION
If a co defendant has received a bankruptcy stay in our case, can I still get a fair trial without him?
Asked on Mar 19th, 2013 on Bankruptcy - Texas
More details to this question:
My case revolves around proving he is guilty of fraud not me and without him there, I cannot do that. So is he not an indispensable party?
10 ANSWERS
Whether or not this person has filed bankruptcy should have no bearing on your case, you can still call him in as a witness on your case.
Answered on Mar 25th, 2013 at 8:25 PM
Construction Litigation Attorney serving Mission Viejo, CA
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Law Office of Christian F. Paul
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It sounds as though you are a defendant in a civil case and a co-defendant filed a bankruptcy petition. If you need his testimony to prove your case, you should be able to take his deposition before trial and to subpoena him as a witness at trial. You cannot pursue him for whatever he may owe you because of the bankruptcy stay, but asking him questions under oath to prove your defense is not prohibited. If in doubt, make a motion in the Bankruptcy Court for permission to subpoena the debtor in your civil case. I hope you are represented by counsel in your case. If not, and if it is important for you to prevail in defending the case, you might want to hire a lawyer while there's still time. Hope this perspective helps.
Answered on Mar 21st, 2013 at 10:34 AM
You cant get a fair trial. The plaintiff should request a relief from the stay to prove fraud, which is not dischargeable in bankruptcy.
Answered on Mar 19th, 2013 at 3:52 PM
Yes.
Answered on Mar 19th, 2013 at 2:35 PM
Complex Litigation Attorney serving Costa Mesa, CA
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Thomas Vogele & Associates, APC
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Whether a party is an indispensable party is not a bankruptcy question, per se. In this case you should have your lawyer seek a stay of the action against you until such time as your co-defendant can participate in a trial. A finding of fraud would render the plaintiff's claims against your co-defendant non-dischargeable and the plaintiff's lawyer should be considering filing an adversary action in the bankruptcy court or seeking relief from stay. Meanwhile, your lawyer needs to do whatever he/she can to postpone trial so your defense can be asserted.
Answered on Mar 19th, 2013 at 1:51 PM
Bankruptcy Attorney serving Plantation, FL
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Moffa & Breuer, PLLC
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Bring this person in as a witness rather than as a defendant.
Answered on Mar 19th, 2013 at 1:51 PM
Appellate Attorney serving Grosse Pointe Farms, MI
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Musilli Brennan Associates, PLLC
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I would speak either attorney but it certainly appears that he is an indispensable party, and additionally the creditor should be seeking a determination on the discharge ability of his debt if it was incurred as a result of a fraud. Generally, fraudulently incurred debts are not dischargeable.
Answered on Mar 19th, 2013 at 1:51 PM
2 Awards
You can get the stay lifted for purposes of trying your case. Just can't collect from debtor.
Answered on Mar 19th, 2013 at 1:51 PM
It sounds like he might be an indispensible witness, but not an indispensible party. Hope you have an attorney representing you because you are in a high risk situation.
Answered on Mar 19th, 2013 at 1:51 PM
Bankruptcy Attorney serving Dallas, TX
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Polk & Associates
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Based on 20 years of trial work, I'd say your chances of proving him guilty of fraud are about 1,000 times better without him there than they'd be if he was. It's much easier to deflect liability to "the empty chair" than to someone who'll just get on the witness stand and deny everything you accuse him of.
Answered on Mar 19th, 2013 at 1:18 PM