QUESTION

How do I successfully enforce a promissory note?

Asked on Nov 27th, 2018 on Breach of Contract - Iowa
More details to this question:
Hello, I have a promissory note that was notarized between a friend and myself. There is a large sum of money involved but this person has in no way kept to the conditions laid out in the note. Should I collect more evidence or will the promissory note be enough? Also does it matter that this person declared bankruptcy since this is a personal debt or does chapter affect that? Also if I were to win how can I get paid? This person married then signed this promissory note but has no intention of holding a job as her husband provides all income for the family.
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1 ANSWER

Appellate Practice Attorney serving New York, NY
There's no way of knowing whether the promissory note itself will be enough evidence without knowing what, if any, defense the debtor will assert.  Often the promissory note itself is enough, but if, for example, the debtor asserts that they didn't sign the note, you would need evidence (from a handwriting expert usually) that the signature is heirs.  If the debtor claims that she was not of age when she signed the note, you would need evidence of her true age.  And so on.  The note is certainly a sufficient basis to start a lawsuit, except that the debt may have been wiped out in bankruptcy. You say that this person filed bankruptcy after signing the promissory note, but then you seem to distinguish between her bankruptcy and her "personal" obligation, implying that the bankruptcy wasn't personal.  If the bankruptcy was for a separate entity, a corporation for example, and not the debtor personally, it would not wipe out the note, but if she personally filed bankruptcy, it almost certainly would. With limited exceptions, such as debts arising out of drunk driving, student loans, debts incurred by fraud, etc., a bankruptcy filing wipes out all debts listed in the bankruptcy petition.  The creditors receive any payments, full or partial, from the bankruptcy estate, based on the payment plan ordered (in a ch. 13 or ch. 11) or based on the sale and pro rata distribution of the debtor's non-exempt assets (in a ch. 7).  Unsecured creditors, such as yourself, would come behind secured creditors and priority claims. If you obtain a judgment, you may be able to collect even if the debtor has no income, by forcing the sale of any assets and having the debt satisfied from the proceeds.  However, you are probably correct that you would not have recourse to any of her husband's income or assets.
Answered on Nov 27th, 2018 at 2:13 PM

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