I have a default judgement issued by CFTC administrative judge and domesticated in Georgia. Through the FOIA i have proof that certified mail was sent to wrong address and was past 2 year statute of limitations. The CFTC even sent me letter stating i was not served papers. Can this judgement be stopped by bankruptcy? Does federal bankruptcy judge have authority of dismis
s this unlawfully judgement. CFTC has a 1 year limitations on appeals and say they cannot help but also sent me letter of non service in 2012. My home is attached and local judges is forcing sale
Sounds like a very stressful situation. You can file a bankruptcy petition and stop the pending sale. The Bankruptcy Court also has the power to decide if the judgment is valid; however, if the CFTC judgment is fraud-related, it may not be dischargeable in bankruptcy. You need to consult with an attorney who is an expert in Bankruptcy law/debt collection practices. AVVO has a search function to help you choose an attorney in your area.
U.S. Commodities Futures Trading Commission judgments may have different components, and they should be carefully reviewed by bankruptcy counsel. Some civil penalties may not be discharged in bankruptcy, if they are levied as part of the police powers of the agency. Concerning the general money judgment, unless the CFTC can plead and prove that their civil judgment involves some form of willful or malicious injury, or fraud or defalcation while you were acting in a fiduciary capacity, or embezzlement, or larceny, you would be able to discharge this judgment in a Chapter 7 case. There are several cases that have held that such debts can be discharged unless the CFTC can prove fraud in a fiduciary capacity on the part of the debtor. You would need to hire an attorney to file this Chapter 7 case, because a motion to avoid the judicial lien must also be filed with the bankruptcy court as well. You may need to provide for an additional retainer for counsel to litigate an adversary proceeding here, because the government will probably fight the discharge of this CFTC judgment.
I agree with both of the other attorneys responding to your question.
I add in part that the unlike the SEC, CFTC restitution judgments, especially administrative actions, are dischargeable at least in the 9th Circuit, based on my reading of In re Matter of Sherman, link here:
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