Legal Question in Civil Litigation in California

I was the original defendant in a civil fraud case involving a piece of real estate (which by the way is a totaly frivolous suit, but due to a technicallty it looks like they may win). However, I filed chapter 7 BK, and due to the pantiff's attorney not filing the proper paperwork in time, I was relieved of all monetary obligations. I'm scheduled to be deposed on Friday, but all other parties are meeting for mediation on Tuesday. If they are settling, why am I being ask for my deposition?


Asked on 12/16/09, 11:50 pm

2 Answers from Attorneys

George Shers Law Offices of Georges H. Shers

Check with the plaintiff's attorney if he still wants to take your deposition. He probably believes that since you are "out" of the case you may tell him information that will be harmful to the other defendants so that he can demand more at the mediation [which is a lengthy settlement conference].

I do not know that much about BK, but I believe claims of fraud are not dismissed by going through BK.

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Answered on 12/22/09, 10:12 am

If they settle, your deposition will be cancelled, but mediation is not always successful and sometimes it takes multiple sessions with further discovery in between to narrow the issues being mediated. And of course if the mediation is a total failure, they will want to actively proceed with the case. So they will keep your deposition "on calendar" unless and until they settle.

As for the BK issue. As you probably know, but others who read this answer may not, claims of fraud are NOT automatically preserved in a bankruptcy, unless there is already a judgment on the fraud claim. If the creditor is not a judgment creditor on a fraud claim, but rather the plaintiff in a lawsuit for fraud, they must transfer the case to the Bankrutpcy Court as a Bankruptcy Adversarial Proceeding and obtain a judgment there on the fraud claim. Otherwise the fraud claim is discharged like any other.

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Answered on 12/22/09, 10:27 am


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