Bankruptcy Litigation to Protect Debtors from Non-Dischargeability, Denial of Discharge Actions and Violations of the Automatic Stay
We work with your bankruptcy lawyer to oppose creditor’s non-dischargeability actions and bring actions for damages related to violation of the automatic stay.
It is common that debt collection companies, landlords, banks, spouses and creditors ignore the automatic bankruptcy code imposed stay against taking any action to enforce or collect on a debt. Often, by going on the offensive, and “suing” the creditor for that violation, you can negotiate a better bankruptcy plan (Chapter 11 or 13) or avoid an action for non-dischargeablity of a debt. It is very complicated what is dischargeable, what is not. Sometimes it is how you categorize a debt that is critical. For example, here is a chart of the common debts that can be or not be discharged in bankruptcy. (View Chart 1)
We will help you and your bankruptcy counsel to defeat claims that you are not entitled to a discharge and “fresh start” because of alleged fraud or non-dischargeable family law or tax claims. Bankruptcy law is very complex, almost Byzantine and requires an attorney to take the time to analyze not only the underlying facts, but the theory asserted by the creditor and purpose of the law. Sometimes courts look to doctrines such as the Rooker-Feldman Doctrine and its exceptions. Other issues are that the bankrutpcy code is quite flexible by certain definitions.
For example, in determining non-dischargeability of a debt under 11 U.S.C. section 523(a)(6), the proper inquiry is whether the injury underlying the judgment involved either a subjective intent to harm, or a subjective belief that harm was substantially certain. However “subjective” issues have a range of interpretation! A civil action for “theft” is called conversion. However in PEKLAR v. IKERD (08/09/01 - No. 00-55464) (9th Cir. Ct App) the court found that a California state civil court judgment for conversion may be discharged in bankruptcy because it does not involve "willful and malicious injury" under 11 USC 523(a)(6).
Another complicated area is when family law collides with bankruptcy and creditor laws. (View Chart 3) See also some of the overall issues when one spouse files for bankruptcy on this chart: (View Chart 4)
Judges look at several issues when evaluating these actions and claims. Some of those factors are listed here. (View Chart 2)
Often there are loopholes or laws that are not in the bankruptcy code but which the US. Federal Bankruptcy Court can or must follow to defeat the creditor’s claim and allow you a discharge and the ability to take back your financial life from exploitive creditors and to rebuild your life.
Chart 1: What debts are discharged in Chapter 7
Chart 2: Some Factors Judges Look at to Determine Fraud
Chart 3: Divorce & Bankruptcy
Chart 4: How Bankruptcy by one spouse affects the non-filing spouse.
Simkin & Associates
Los Angeles Real Estate Attorneys
Proudly Serving Southern California for over 25 Years
For Real Estate, Business Law, Asset Protection, Trust, Conservatorship and Immigration needs in
Los Angeles, Ventura, and Orange Counties
Phone: (310) 788-9089
Serving Los Angeles and Southern California since 1989
Including Van Nuys, Beverly Hills, Santa Monica, West Hollywood, Culver City, Burbank, and the communities in Ventura County, Orange County, and Los Angeles County