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Person we have a judgment against filed bankruptcy. After meeting of creditors, his lawyer wants to make a deal with us. Legal?

Rome, GA |

An ex-partner of ours that we have a judgment against filed bankruptcy. We attended the meeting of creditors and showed he was lying about income, assets, expenses, etc. He admitted there were about 15 so called "errors" in his papers. The trustee has objected to the plan and has said the bankruptcy claim should be dismissed or converted to chapter 7. His attorney amended some of the errors, but not most, included income. On paper he said he makes $18,000 from his business monthly, during the meeting of creditors he said it was $33,000+. This still has not been amended, along with other major "errors" His lawyer called us and wants to make a deal that he will pay back a portion of what owes us at $200 a month until is paid off through bankruptcy court. Is this legal? Is he just scared?

Attorney Answers 4

Posted

Yes, lawyer is worried. Your question doesn't specify the type of BK debtor is in, but by mentioning conversion I am guessing he is in a chapter 13. I am not sure by what you mean when you say "...that he will pay back a portion of what owes us at $200 a month until is paid off through bankruptcy court" Does that mean an agreement to pay $200/mo on the lowered total amount?

Here are my thoughts, in no particular order of priority:

The debtor probably went into chapter 13 to save property, possibly a home. He doesn't have enough income to save the home and pay unsecured creditors, based upon what he owns. By getting you to commit to $200.00 a month it may free up income to apply to other creditors. It is "legal" for the attorney to negotiate with you to obtain a Stipulation, legal word for agreement, that is made a part of the bankruptcy case. I would not worry so much about his statement at creditors meeting that he makes $33k, he could have been confused as to gross vs. net income.

My question for you is: where do you think you would be better off--in a Chapter 13 where he would at least be making payments for 36-60 months, or in a Chapter 7, where his assets would be liquidated at extremely low values and then shared with other creditors. The amount to be shared obviously depends upon how much $ he owes to other creditors. If I am correct and he is attempting to save his home from foreclosure and you are the only creditors he has that are no secured, then a liquidation of his assets in a Chapter 7 might be wonderful. The house, if that is what it is, would be sold and the proceeds used to pay off any secured loans on the house. If there is equity, you might see some of that. If there is no equity, you won't and the secured creditor can also put in a proof of claim and share with you on a pro rata basis the proceeds from the sale of his other assets. If you are the only unsecured creditors, then you have tremendous leverage in the Chapter 13, if it is a 13, because you can object to his Plan also, in addition to the Trustee.

On the other hand, if your claim is just one of zillions out there, his going into a Chapter 7 would probably not benefit you, since, depending on what he owns and what it is worth, you might be getting just a tiny sliver of the proceeds from the liquidation sale of his assets, and that might be less than $200/mo for 36-60 months.

Clear as mud? lol

Obviously, bankruptcy questions are very detail oriented. I know people hate to get the advise here on Avvo to "consult with an attorney", but that is what is called for here. You need the advise of a BK attorney in the state where the judgment debtor filed so that you will learn whether the mistakes are major or minor, how much money you could expect to receive in a Chapter 13 if you did not cut a deal with the debtor for $200/mo, the effects of a conversion to Chapter 7, etc. etc. etc.

PS--you should know that the debtor has the absolute right to dismiss a Chapter 13 bankruptcy without court approval. So, when exercising your leverage in your negotiations with debtor, consider that as well.

Best of luck to you.

T.

I hope you found this response to be of assistance. This response shall not be considered the rendering of legal advise but instead a general response to a general question. While Avvo is a wonderful resource, nothing can be a substitute for an in-depth consultation with an attorney in the jurisdiction in which the law is to be applied. This response shall not be deemed to create an attorney-client relationship, nor shall it create an obligation on the part of the attorney to respond to further inquiry from the questioner.

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8 comments

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Asker

Posted

Thank you .. this has all been a learning experience. He is a sole proprietor and was asked his gross income and he said $33,000+. His schedules list his gross at $18,000 with business expenses at $15,000+. Yet his monthly sales tax expense as he listed would mean gross revenue of over $30,000. Also he had yet to list all of the vehicles he owns with correct year make and model. He still has not ammended the extra income his wife makes .. He just purchased a used vehicle and put it in his wife's name but had it vehicle wrapped with an advertisement for his business yet they don't have money .. the inventory/equipment for his business was listed in.the schedules at $4,500 yet last years property tax paper shows the value over $33,000 .. His lease for his restaurant was not listed in the filing ... He filed an affidavit that he didn't have employees in 2009 and 2010 but he did in 2009 with a partnership and in 2010 he had the same employees with his sole proprietorship as a restaurant .. During the meeting of creditors there were do many so called errors that were never amended ... We are going to talk with his attorney but we really don't see any hope of a settlement .. He owes more than he is offering and there are still so many lies or errors in his filings .. thank you for your answer .. I know you take your own time to respond to these questions and it is greatly appreciated..

Posted

If a significant amount of money is involved, you need to shut your computer, retain a lawyer, and file proper objections before you miss the very short deadlines in a Chapter 13. No one here can possibly answer details without seeing the schedules (and analyzing your numbers). You may have altready missed deadlines since the 341 hearing is history, so Monday morning cancel all your plans and see a lawyer that morning.

If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.

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Posted

You may also have a fraud claim that could be determined not discharged. See an attorney.

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Posted

Regardless of whether his income is 18K monthly or 33K monthly, he is likely in a 100% repayment plan and you will get your money in 3-5 years, or less, depending on the amount of debt and his monthly payment. You want his Chapter 13 Plan to succeed. In Chapter 7, depending on his assets and debts, your judgment may be wiped out subject to 19 exceptions, including debts arising from fraud while acting in a fiduciary capacity. 11 USC 523(a)(4).

Why haven't you retained a lawyer yet?

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