Legal Question in Bankruptcy in California

Re: Attorneys / Defendants in chp 7 bk

That is certainly true some of the time. However it is more common that the plaintiff doesn't believe what the defendant is saying!

Moreover, the plaintiff may actually receive some pleasure at seeing the defendant file bankruptcy, especially since a bankruptcy trustee will be making an investigation of the defendant's assets and financial affairs.

Re: Attorneys / Defendants in chp 7 bk

The answer depends a lot on the facts surrounding your claim against the defendants. First, if the claims are absolutely dischargeable (no possible means of exempting them from a discharge), and there is no way to pursue parties other than the now bankrupt defendants, then yes, dismissing the lawsuit without prejudice might be appropriate. That being said, there is a lot of work that needs to be done before determining that the case should be dismissed. The claims, as mentioned previously, need to be evaluated to determine if there is an exemption from discharge available in the bankruptcy. If so, your litigation attorney might not want to pursue that (as he is not a bankruptcy attorney), but you can certainly hire a bankruptcy attorney to get relief from the bankruptcy court. You will need to consult with a bankruptcy creditors attorney in your area to determine if the claims are able to be exempted from a discharge. Second, someone needs to very carefully review the Chapter 7 filing and ensure that it is not fraudulent. If you can prove to the court or Trustee that the bankruptcy was fraudulent, and only an attempt to avoid judgment, then you might be successful in dismissing the bankruptcy, and proceeding with your lawsuit. Again, a bankruptcy creditors attorney will probably be necessary to investigate this. Finally, be sure that your litigation attorney isn't just taking the easy way out by dismissing the case - he should have advised you of all of this, and failure to do so with a blanket "dismiss the case" direction might be malpractice on his part, you may have a claim against the attorney. Good luck.

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Re: Attorneys / Defendants in chp 7 bk

It depends on the nature of the lawsuit. All lawsuits are stayed. But if the suit is for intentional injury or fraud, it can be pursued within the bankruptcy. If it's a breach of contract or auto accident-related, more than likely the debt will be discharged. But, it's worth waiting to see what happens with the bankrupty before dismissing the case. The state court will stay the case pending the bankruptcy's outcome.