My husband left our house and got a judgement years later after some household property was sold. He is using his financial position to make my life heck. He has gotten a default judgment for civil theft in florida against me, i did not go to the hearing because i was taking care of my newborn. Can this judgement be discharged based on the fact that it was not larceny because the alleged removed property at the time was jointly owned under marraige? I only have a under 5000 vehicle and no job or other property but i just want the harrasment to stop. He is spending thousands with his attorney to make me suffer. I have an upcoming deposition, will chpt 7 allow me to not go? His attorney has been very beligerent in the past in depositions during our divorce and i cant take the stress.
Though the Florida theft law includes many acts that aren't just larceny (which is nondischargeable in bankruptcy), your ex would be allowed to prove that his theft judgment means "larceny," and it sounds like he might be right. You should discuss it with a bankruptcy lawyer, though.
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If you file bankruptcy, the debt will presumably be discharged. HOWEVER, he can bring an adversary proceeding to have it declared not dischargeable. If you let a judgment get entered against you, then you have to live with the consequences, regardless of your excuse. Your bankruptcy attorney should be able to assess the possibilities, as long as you provide all the lawsuit documents for review.
Judgments for intentional torts (Larceny) are presumed dischargeable when you file. However, he can bring an action in bankruptcy to determine the debt to be not dischargeable. If he does that and wins the debt will not be discharged in bankruptcy and you will have to pay him.
Wow, sorry to hear that you are having such problems. The earlier postings all contain good advice. However when you consult with an attorney be sure to explore any avenue you may have to setting aside the default judgment prior to filing for bankruptcy. This is not easy and may not be possible but please find out first.
Otherwise, when you former spouse files an exception to discharge complaint the bankruptcy court will be obliged to give full faith and credit to the Florida judgment (it's in the Constitution). That means that the Bankruptcy court can not hear the facts of the case, but will have to accept as true everything your former husband said in the civil theft complaint. Not a good place to be.
As I am not a Florida attorney I can offer you no advice as to the significance of Florida's civil theft law in the context of the exceptions to discharge. You do need to seek advice in a confidential setting as the your post contains things that won't help you if and when they become discoverable in subsequent litigation.
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The default judgment will not automatically bar the debt from discharge. He will have to seek an exception from discharge under 11 USC sec 523, likely subsection 6. You will have a chance to defend yourself. You will be more likely to win if represented by experienced counsel. Look at the website abcworld.ord to find a certified consumer bankruptcy attorney in the Sebring area. You might have to go to Orlando to find someone qualified and experienced in adversary proceedinggs.
“If the important issues were not actually litigated in the prior proceeding, as is the case with a default judgment, then collateral estoppel does not bar relitigation in the bankruptcy court.”) (emphasis added); In re: Raynor, 922 F.2d 1146, 1150 (4th Cir.1991), In re Gottheiner, 703 F.2d 1136, 1140 (9th Cir.1983); In re McMillan, 579 F.2d 289, 292 (3d Cir.1978).
In re Bush 62 F.3d 1319, 1323 (C.A.11 (Fla.),1995)
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