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Motion to Dismiss


xavi72
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This is the situation:  I'm helping out a family member in which he was sued by the OC but just previous to being served, he had already filed BK.  The lawsuit is still ongoing, however, just recently, he charges have been officially discharged.  The trial for the lawsuit is coming up in February so at this point should he file a summary judgement instead to have the case dismissed completely?

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This is the situation:  I'm helping out a family member in which he was sued by the OC but just previous to being served, he had already filed BK.  The lawsuit is still ongoing, however, just recently, he charges have been officially discharged.  The trial for the lawsuit is coming up in February so at this point should he file a summary judgement instead to have the case dismissed completely?

Did he file using an attorney or ProSe??

 

If he is using an attorney contact him an have him remind the OC of the automatic stay for BK and discharge of debts. If he's pro se then he needs to lookup the BK rules and file something to get the trustee to slap their hands.

 

If you have been to a 341 hearing and received papers from the BK trustee discharging is accounts, then file an answer or amended answer to the suit informing the court of this and attach a copy of the discharge paperwork.

 

Then ....................................... I'd go to the lawyers office and............... :<img src=:'>  :<img src=:'> , but  that's me, I'd probably  also.... xshakeitx

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Did he file using an attorney or ProSe??

 

If he is using an attorney contact him an have him remind the OC of the automatic stay for BK and discharge of debts. If he's pro se then he needs to lookup the BK rules and file something to get the trustee to slap their hands.

 

If you have been to a 341 hearing and received papers from the BK trustee discharging is accounts, then file an answer or amended answer to the suit informing the court of this and attach a copy of the discharge paperwork.

 

Then ....................................... I'd go to the lawyers office and............... :<img src=:'>  :<img src=:'> , but  that's me, I'd probably  also.... xshakeitx

He filed his BK Pro se...When he received the lawsuit summons, he filed the automatic stay with the courts as his only Answer to the summons.  At this point should file an Answer with the corresponding BK documents or will it be a demurrer instead?

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This is for Californian's only from a CA BK attorney,

 

You do not need to file an Answer. You could just fax the Notice of Commencement of Case to the plaintiff's attorney and let the plaintiff's attorney take care of notifying the court.

If you were to file and send notice yourself, you might have to pay the first appearance filing fee. Here is what you would do:

When a defendant in a pending state court litigation matter files for bankruptcy, it is necessary to inform the state court of the bankruptcy filing. To do so, the defendant (or any party in the litigation) should file a Notice of Stay of Proceedings (Form CM-180):

http://www.courtinfo.ca.gov/forms/fillable/cm18...

Use of this particular form is mandatory.

Attach to the CM-180 a copy of the Notice of Commencement of Case, along with a proof of service. You can use POS-030:

http://www.courtinfo.ca.gov/forms/fillable/pos0...

Attach the POS-030 to the CM-180 with the the Notice of Commencement of Case so that it is all one single document (as a packet). Then file the Notice of Stay packet with the court, and provide one extra copy to be conformed stamped.

Mail a copy of this same document packet to all of the attorneys (or parties if self represented) in the lawsuit.

 

 

I'd say make sure you filed the proper forms and such with the court, then if so make copies of the court stamped documents and send them CMRRR to the Plaintiffs attorney...then being me.....

 

....................................... I'd go to the lawyers office and............... :<img src=:'> ::doublefinger:: , but that's me, I'd probably also.... xshakeitx

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This is for Californian's only from a CA BK attorney,

 

You do not need to file an Answer. You could just fax the Notice of Commencement of Case to the plaintiff's attorney and let the plaintiff's attorney take care of notifying the court.

If you were to file and send notice yourself, you might have to pay the first appearance filing fee. Here is what you would do:

When a defendant in a pending state court litigation matter files for bankruptcy, it is necessary to inform the state court of the bankruptcy filing. To do so, the defendant (or any party in the litigation) should file a Notice of Stay of Proceedings (Form CM-180):

http://www.courtinfo.ca.gov/forms/fillable/cm18...

Use of this particular form is mandatory.

Attach to the CM-180 a copy of the Notice of Commencement of Case, along with a proof of service. You can use POS-030:

http://www.courtinfo.ca.gov/forms/fillable/pos0...

Attach the POS-030 to the CM-180 with the the Notice of Commencement of Case so that it is all one single document (as a packet). Then file the Notice of Stay packet with the court, and provide one extra copy to be conformed stamped.

Mail a copy of this same document packet to all of the attorneys (or parties if self represented) in the lawsuit.

 

 

I'd say make sure you filed the proper forms and such with the court, then if so make copies of the court stamped documents and send them CMRRR to the Plaintiffs attorney...then being me.....

 

....................................... I'd go to the lawyers office and............... :<img src=:'> ::doublefinger:: , but that's me, I'd probably also.... xshakeitx

 

This is great information, thank you!  After the Notice of Stay, will there be a hearing that he must attend or will he have to wait until his trial date?

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From what I read he "shouldn't have to", but if the court sets a date always be there just in case. No time to get lazy now. Now remember that this is what he should have done as soon as he received his discharge paper's. Not being from California I don't know if there is a certain time in which to file these. CALawyer would know as he is a CA attorney.

 

That is the only problem with ProSe...........you must cross all the t's and dot all the i's...........or learn how to clean up errors.

 

 

  California Rules of Court

 

http://www.courts.ca.gov/cms/rules/index.cfm?title=three

 

From CA Lawyers:

You must act quickly to avoid having the default entered. Attempt to file the Notice of Stay with the Court Clerk. If they accept it, you can always file the Proof of Service later. Your priority should be to get something on file to prevent entry of the default.

File the Notice today if possible.

  1. . Yes, someone other than yourself should sign the proof of service and mail it out.

In your friends case I would print it out and have you hand carry it to the plaintiffs attorney while he files it immediately at court.

The way I am reading, if the default is entered prior to this he might be stuck for the default judgment. And no way out for 8 yrs.

 

I'd do it now .............today! Youl can fill it out on line and print it out right there.........then march it immediately to the court and file.........with a proof of service affidavit in hand.

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