QUESTION
If a debtor has not had charges against them for fraud/racketeering, but evidence exists, can this be filed against their attempts for bankruptcy?
Asked on Apr 17th, 2015 on Bankruptcy - Colorado
More details to this question:
Goal is not to allow her to use that protective measure by writing a dispute of such rights letter to court.
6 ANSWERS
That would be a yes.
Answered on Aug 31st, 2015 at 8:23 PM
Commercial & Bankruptcy Law Attorney serving Powell, OH
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Ronald K. Nims
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If she files bankruptcy and names the victim as a creditor, the creditor must file an action in the bankruptcy court and prove that the action was fraud (racketeering isn't recognized by the bankruptcy law as an exception). Warning, you'd better have strong evidence because in bankruptcy court the burden of proof is higher than in civil court and if you lose, you'll probably have to pay her costs and attorney fees.
Answered on Apr 21st, 2015 at 2:43 AM
Criminal evidence can be used in an adversary proceeding to prevent the discharge only if the crime or quasi crime relates to the debt. So if the debtor is a cat burglar, his occupation may not be relevant to the debt owed to you for a personal loan. The criteria is set out in 11 USC section 523.
Answered on Apr 20th, 2015 at 6:34 PM
Bankruptcy Attorney serving Madison, WI
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Richard B. Jacobson & Associates, LLC
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If a prior court decision held that an act was fraudulent, the bankruptcy court must generally accept that finding. However, a prior court decision is not needed to bring an Adversary Proceeding seeking to exclude a debt from discharge on the ground that it was incurred fraudulently. But Bankruptcy courts are somewhat reluctant to find fraud, so your evidence should be strong. Also, prosecuting an Adversary Proceeding can be rather demanding and expensive. Good Luck.
Answered on Apr 20th, 2015 at 6:32 PM
A debt obtained by fraud is not dischargeable in bankruptcy, but the fraud must be proven in an adversary proceeding within the bankruptcy case. You would definitely need to hire an experienced attorney to help you. It is not enough to write a letter or to speak at the routine trustee's hearing.
Answered on Apr 20th, 2015 at 2:17 PM
The simple answer to your question is "yes". However, you must file an adversary proceeding. Speak with an experienced BK lawyer about this proceeding. There are deadlines, so time is of the essence. You will need to act quickly.
Answered on Apr 20th, 2015 at 2:16 PM