Can they proceed with discovery while I am in the stay or do they have to file something with the bankruptcy court to do so? 16 Answers as of March 12, 2014

I filed a pro se chapter 7 and a lower court judgment for fraud. At the time of the lower court case I was unable to pay an attorney and I was pummeled by the Plaintiff’s attorney. The lower court case is now in post judgment discovery.

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Stephens Gourley & Bywater | David A. Stephens
In a civil fraud case they would need an order lifting the stay to proceed in a court other than bankruptcy court.
Answer Applies to: Nevada
Replied: 3/12/2014
SmithMarco, P.C.
SmithMarco, P.C. | Larry P. Smith
The case against you must be stayed. If they do not stop, they are in violation of the bankruptcy stay and can face sanctions.
Answer Applies to: Illinois
Replied: 3/10/2014
GARCIA & GONZALES, P.C.
GARCIA & GONZALES, P.C. | Richard N. Gonzales
The automatic stay protects you. The judgment creditor has to file an Adversary Proceeding in the Bankruptcy Court alleging the debt is not dischargeable in your bankruptcy filing (i.e., based on fraud). It may be a easy since they already have a state court judgment based on fraud, but they have to file the Adversary Proceeding within 60 days of your creditors' meeting to survive the bankruptcy discharge. The automatic stay is effective until you get your discharge, or the file and ask permission for relief from the automatic stay.
Answer Applies to: Colorado
Replied: 3/10/2014
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
They have to stop now. But the fraud finding will haunt you in the bankruptcy case as they can file an action to have it declared nondischargeable. You should see a lawyer about a possible chapter 13 case if that happens.
Answer Applies to: California
Replied: 3/10/2014
Law Office of Marlin Branstetter
Law Office of Marlin Branstetter | Marlin Branstetter
In order to do discovery the judgment creditor needs permission of the bankruptcy court.
Answer Applies to: California
Replied: 3/10/2014
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    The bankruptcy filing stops the movement of every court proceeding outside of bankruptcy, so you will be protected by the bankruptcy court's "stay." However, a good attorney may simply move the discovery into the bankruptcy process and continue to harass you.
    Answer Applies to: Nevada
    Replied: 3/10/2014
    Garner Law Office
    Garner Law Office | Daniel Garner
    It sounds like the plaintiff would need to ask the bankruptcy court for relief from the stay before they can conduct discovery, but they are likely to get approval in due time so you are merely postponing the inevitable if they already have a judgment against you. I hope you included the plaintiff in your bankruptcy and made sure that their attorney received formal notice of your bankruptcy and of the date and time of the trustee hearing. Most lawyers will respect the bankruptcy stay if they are aware of it.
    Answer Applies to: Oregon
    Replied: 3/7/2014
    Goldsmith & Guymon
    Goldsmith & Guymon | Marjorie Guymon
    No further litigation may occur until the creditor seeks relief from the stay.
    Answer Applies to: Nevada
    Replied: 3/7/2014
    Law Offices of Linda Rose Fessler | Linda Fessler
    Send the opposing attorney and the court a notice of the filing of the bankruptcy and everything should be halted. As long as the judgement is not for personal injuries and you list it in your bankruptcy papers, the judgement should be discharged with the bankruptcy. However, if they have already put a lien on your property that will not be removed.
    Answer Applies to: California
    Replied: 3/7/2014
    Law Offices of Eric W. I. Anglin
    Law Offices of Eric W. I. Anglin | Eric W. I. Anglin
    The first thing you should do is file a notice of bankruptcy filing in the lower court. Your bankruptcy filing should act as an automatic stay in most circumstances unless you've had multiple bankruptcies dismissed in the past year. Once the stay is in place the lower court case should not proceed pending the outcome of your case unless it is determined in the bankruptcy court that their debt is not dischargable. The second thing you should do is hire an attorney to assist you with both matters as you may be in over your head.
    Answer Applies to: Indiana
    Replied: 3/7/2014
    Law Office of Shawn N. Wright | Shawn N. Wright
    No, the creditor has to petition the Bankruptcy Court for relief from the automatic stay in order to conduct discovery. I would advise you to consult with a bankruptcy attorney.
    Answer Applies to: Pennsylvania
    Replied: 3/7/2014
    Rosenberg & Press
    Rosenberg & Press | Max L. Rosenberg
    You need an attorney. No post discovery will go forward without a judgment of relief from stay.
    Answer Applies to: Connecticut
    Replied: 3/7/2014
    Danville Law Group | Scott Jordan
    First of all, you need a bankruptcy attorney representing you. A judgment for fraud is not dischargeable in bankruptcy, so if this was the only reason you filed bankruptcy, you may be disappointed. You need to file a Notice of Bankruptcy Proceeding with the civil court. Did you list the plaintiff as a creditor in your bankruptcy case? You should have listed the plaintiff and the plaintiff's attorney. Once they have notice, they have to go to the bankruptcy court and file an adversary proceeding to have the debt declared nondischargeable. If the judgment is for fraud, it will be difficult, but not impossible, to prevail in the AP.
    Answer Applies to: California
    Replied: 3/7/2014
    The Law Office of Mark J. Markus
    The Law Office of Mark J. Markus | Mark Markus
    The plaintiff cannot do anything in the non-bankruptcy action without first obtaining relief from the automatic stay from the bankruptcy court. You would be notified if they filed such a motion. If there is fraud involved, the most likely outcome is going to be that they will file a Complaint in the bankruptcy court objecting to the discharge of your debt, and then obtain permission to complete the state court action against you to determine the fraud. If they are successful, the debt will not be discharged. This would be a good time for you to hire an attorney.
    Answer Applies to: California
    Replied: 3/7/2014
    Deborah F Bowinski, Attorney & Counselor at Law | Debby Bowinski
    Did you properly list all parties on your creditor matrix when you filed your bankruptcy case? Did you receive the interrogatories before or after your filing date? If you received court-ordered discovery requests before you filed your bankruptcy case you are obligated to comply with the court's order. You risk a contempt citation if you do not. You really need to hire a lawyer. Debts that were incurred through fraud are not dischargeable in bankruptcy. If the creditor files an adversary proceeding in your bankruptcy case they will most likely win if there is already a state court judgment for fraud. Hopefully you also have other debts that can be discharged in bankruptcy. I would hate to learn that you filed the bankruptcy case for nothing.
    Answer Applies to: Colorado
    Replied: 3/7/2014
    Robert S. Payne, Utah Bankruptcy Attorney
    Robert S. Payne, Utah Bankruptcy Attorney | Robert S. Payne
    The automatic stay in bankruptcy stops all collection activity, including their post-judgment discovery. The hardest part will be trying to file a motion for sanctions with the bankruptcy court by yourself. You may want to threaten them with a motion for sanctions for violation of the automatic stay first, and see if that stops the discovery. If not, you'll need a good bankruptcy litigation attorney to actually sue them for sanctions.
    Answer Applies to: Utah
    Replied: 3/7/2014
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