i recently was awarded a small claims court case. went through a reason to show cause against person as well. He filed bankruptcy judge stated court needed to see proof within 5 bus. days. will i get my money with this person filing bankruptcy?
There are two answers: the LEGAL answer and the PRACTICAL answer.
LEGALLY, it depends on the nature of the debt. If it was for fraud or similar reasons, then legally you can pursue the debtor through bankruptcy to obtain a judgment of non-dischargeability.
PRACTICALLY, since this is a small claims case, the amount involved is probably too small to justify the cost, effort, stress and angst or pursuing the debtor through bankruptcy.
If the judgment creditor does file bankruptcy, you should file a proof of claim (unless the Court tells you not to do so) and be sure the judgment creditor receives a "discharge" before you give up all hope. If there is NO DISCHARGE, then your judgment is still valid.
If you need further clarity, please email me at MICHAEL@MIRELAND.US Answers to questions are for general information purposes only and do not establish an attorney-client relationship. This is not legal advice, simply information. You SHOULD NOT act on this information without consulting a competent bankruptcy attorney in your area and providing ALL relevant information.
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Chapter 7 Bankruptcy Attorney
You could pursue him in the Bankruptcy Court by filing a non-dischargeability complaint, but you have a certain amount of time with which to do so, AND, you have to prove fraud. In other words, just saying you got stiffed is not enough. You have to show that this was actual fraud. Not an easy standard. And even then, how easy would it be to collect? Collecting is often more difficult than winning. So practically speaking, I think you're probably better off moving on.
Whether or if you can collect any money depends. If you got a judgment against this person ( and they owe you money because you won the lawsuit) and then they filed bankruptcy, you are a creditor and should be listed as a creditor in the bankruptcy papers. Creditors are entitled to get official notice of the bankruptcy case. You can call a local attorney in your area to see if they could confirm whether this person has in fact filed for bankruptcy.
You'll also need to determine whether it is a chapter 7 bankruptcy or a chapter 13 case. This can make a difference as to whether you might be able to ever recover any money on the judgment. As mentioned by the other attorneys commenting here, you will need to hire someone to help you determine whether you can recover any money.
This answer is for informational purposes only and may not be relied upon as legal advice.
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Chapter 7 Bankruptcy Attorney
If they filed a chapter 7 bankruptcy then most likely no. If they filed a chapter 13 bankruptcy case then maybe you have a shot at getting something. The chapter 7 case could be an asset case though. If it is an asset case then creditors will be asked to file a proof of claim proving the amount they are owed by the debtor. In the chapter 13 case all creditors are asked to file a proof of claim given that there are assets available to creditors or the debtor would not have filed chapter 13 to begin with.
Ryan C. Wood is Bay Area bankruptcy lawyer and has been practicing exclusively bankruptcy law in California since 2007. Mr. Wood formerly worked for David Burchard, Chapter 13 Trustee for the Santa Rosa and San Francisco Divisions of the United States Bankruptcy Court for the Northern District of California. West Coast Bankruptcy Attorneys has filed hundreds of bankruptcy cases and has an “A” rating by the Better Business Bureau.
Legal Disclaimer: Ryan C. Wood practices law in California only. Any answers to questions re not intended to be legal advice or create an attorney-client relationship. Always consult an attorney in your jurisdiction about your particular circumstances.
If it is a Chapter 13 bankruptcy or a Chapter 7 resulting in liquidation of some type, then you MAY be able to get some money but you would have to TIMELY file a Proof of Claim with the court. Most Chapter 7 cases are no-asset cases that do not result in any payment to creditors, including judgment-creditors such as yourself.
Advice on this forum is for informational purposes only and should never be mistaken as a substitute for legal advice. If you are in need of legal advice, you should consult local legal counsel.
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