What is Legal Status of this Judgment?


M

Moral Turpitude

Plaintiff sues Defendant in a debt action in a state court.
Unbeknownst to Plaintiff, Defendant had filed Ch.13 bankruptcy shortly
before the debt action was commenced.
For reasons not clear, Defendant failed to raise his bankruptcy filing
as a defense against the Plaintiff's claim.
Plantiff gets judgment against Defendant.
In time, Defendant's bankruptcy is dismissed for failure to make plan
payments.
Can Plaintiff now execute on his judgment?
 
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D

duh

Moral Turpitude said:
Plaintiff sues Defendant in a debt action in a state court.
Unbeknownst to Plaintiff, Defendant had filed Ch.13 bankruptcy shortly
before the debt action was commenced.
These facts don't answer when the bankruptcy proceeding first did
become knownst to plaintiff.
For reasons not clear, Defendant failed to raise his bankruptcy filing
as a defense against the Plaintiff's claim.
Plantiff gets judgment against Defendant.
These facts still don't answer when plaintiff first learned or absent
actual knowledge should have known of the bankruptcy proceeding in
relation to when judgment was granted/filed, whether the reference to
defendant not having raised bankruptcy as a defense is not meant to
suggest defendant appeared and in other ways attempted to defend on
the merits compared with having defaulted completely in answering or
otherwise appearning, whether defendant also informed the trustee if
there was one of that lawsuit if defendant did appear and attempt to
defend, and of course how/whether defendant was served with process if
the judgment referred to was granted on default, and yet all these
facts (most especially whether you are/aren't referring to a default
judgment and also what plaintiff knew or should have known and when
about the bankruptcy) would be relevant to resolving a contest between
proffered "Yes" and "No" answers to the question below.
In time, Defendant's bankruptcy is dismissed for failure to make plan
payments.
Can Plaintiff now execute on his judgment?
Yes - except that, if threre is a litigated disputed between defendant
and plainatiff about plaintiff's right to do so, the outcome will
depend mostly on the facts that answer the above questions.
 
M

Moral Turpitude

These facts don't answer when the bankruptcy proceeding first did
become knownst to plaintiff.




These facts still don't answer when plaintiff first learned or absent
actual knowledge should have known of the bankruptcy proceeding in
relation to when judgment was granted/filed, whether the reference to
defendant not having raised bankruptcy as a defense is not meant to
suggest defendant appeared and in other ways attempted to defend on
the merits compared with having defaulted completely in answering or
otherwise appearning, whether defendant also informed the trustee if
there was one of that lawsuit if defendant did appear and attempt to
defend, and of course how/whether defendant was served with process if
the judgment referred to was granted on default, and yet all these
facts (most especially whether you are/aren't referring to a default
judgment and also what plaintiff knew or should have known and when
about the bankruptcy) would be relevant to resolving a contest between
proffered "Yes" and "No" answers to the question below.




Yes - except that, if threre is a litigated disputed between defendant
and plainatiff about plaintiff's right to do so, the outcome will
depend mostly on the facts that answer the above questions.

Not enough facts for ya, huh? OK, here we go . . . .

Plaintiff was a pro se litigant. He knew one week after he filed his
action that the Defendant had already filed his chapter 13, but didn't
think it made any difference. "SO WHAT he filed bankruptcy!" he
shouted. "I want JUSTICE!"

The Defendant was properly served, but did not show up at the hearing.
"Hey, what the hell. I FILED BANKRUPTCY," he said defiantly. "I don't
have to give this guy a penny. Got better things to do with my time
than sit in a courtroom."

No, wait a minute. That's not true. Scratch all that.

Plaintiff was represented by counsel, who knew one week after filing the
action that Defendant was under bankruptcy protection, but, based on his
personal knowledge of the Defendant's profligate tendencies, predicted
that the Defendant would never, ever, be able to discipline himself to
faithfully make all his plan payments to the trustee. So, confident that
time was on his side, he just said nothing and gambled that no one would
raise an objection. No one did, and his prediction was fulfilled.

The Defendant DID show up at the hearing but was unrepresented by
counsel and didn't understand that he could assert bankruptcy as a
defense. Instead, he said in his defense he didn't think he ought to
pay the Plaintiff because he didn't get his money's worth.

Can Plaintiff now execute on his judgment?
 
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D

duh

Moral Turpitude said:
{ When plaintiff sued defendant in state court on an
allegedly unpaid debt, plaintiff did not know defendant
had petitioned for Ch.13 bankruptcy relief shortly before
though plaintiff learned of that filing about a week after
suing. However, based on his knowledge of defendant's
psyche and past practices, plaintiff guessed defendant
would not be able to discipline himself to comply with a
Ch. 13 repayment plan with the result of the bankrutpcy
case probably being dismissed and so decided to proceed
with his state court lawsuit. Defendant then effectly facilitated
this decision by appearing in the state court trial and trying to
defend on the merits by disputing the the amount sued for
though ineffectually so and also without invoking the statutory
bankruptcy stay or otherwise trying to raise the pendency of
his bankruptcy proceeding in defense. Plaintiff was granted the
money judgement sued for but, also calculating that attempting
to enforce it might trigger affirmative invocation the statutory
stay, chose to refrain from seeking its enforcement while waiting
to see whether his earlier guess / prediction about the likely
dismissal of the bankruptcy case would be proven correct, and
it was not long thereafter. Defendant's bankruptcy petition
having been dismissed for failure to make plan payments and
the bankruptcy case having been closed, may plaintiff now execute
on his judgment? ]
You ask little more than whether, abstractly/analytically, the former
statutory stay had the per se effect of rendering void plaintiff's
steps by proceeding with his trial and obtaining the entry of
judgement arguably in violation of that prohibition, although you also
still do not make make clear how plaintiff learned of the pendency of
the bankruptcy case - e.g., as it were, informally "through the
grapevine" compared with because he was listed as a creditor in the
bankruptcy petition and was informed of the proceeding by the
bankruptcy court ir even whether the bankrupt listed him as a creditor
or whether he subjected himself to the bankruptcy court's jurisdiction
by filing a claim in the bankruptcy proceeding, although any/all these
factors might bear on the disposition of a litigated dispute over a
"Yes" answer to your question above. If, however, you are trying to
suggest that plaintiff avoided participation in the bankruptcy
proceeding, e.g., by refraining from filing a claim, and thus had not
subjected himself to direct jurisdiction over him by the bankruptcy
court, then it is also arguable (as of course you've already
specultated) that your question concerns a now largely moot "what if?"
in light of the expiration of the interim stay upon the earlier of the
denial of a discharge or dismissal of the bankruptcy case and related
implication if the facts as summarized above constitute all the
relevant ones that there could not be any basis for a claim of injury
to the defendant let alone to the bankrupt's "estate" over which the
bankruptcy court no longer has jurisdiction (and so which doesn't
actually "exist" as an "estate" in the bankruptcy law sense of that
term).

Perhaps, however, it might be fair to ask what facts you've
"forgotten" to state in your postings that, if fairly considered,
would change the (so far) apparently correct evidently also by you
desided answer ("Yes") to a "No" because, in light of the facts as
you've so far seemed to contend them to be, the actually practical
person might wonder why plaintiff has not already sought to enforce
his judgment.
 

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