Legal Question in Criminal Law in California

what kind of lawyer should you use if : You sued a co worker in smalls claims court and won the judgement. Now the person appealed because they are now in bankruptcy (chapter 13). The reason why I won was because the co worker gave me a contract for 4 months to invest in a storefront property she never opened and used the money to bail out of forclosure. She also took a cruise with some of that money.

I want to take her to criminal court for fraud but I'm not sure which type of lawyer I should use to get my money back based on the fraud. I was told that you can't put debt from fraud in a bankruptcy. If that true.

Deanna


Asked on 10/22/09, 7:07 pm

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

You can't take anyone to criminal court. Only the government can do that. If you think your co-worker committed a crime, report it to the police and/or the district attorney. If they agree with you and think there is enough evidence to prove her guilty beyond a reasonable doubt, they may prosecute her.

You're right that debts which result from fraud cannot be discharged in bankruptcy, but the creditor must prove the fraud to the bankruptcy court. If you already have a state-court judgment that says this was fraud the task will be easy, but you will still have to do it.

Chances are, though, that your small-claims judgment merely says your co-worker breached a contract. Breach of contract does not imply fraud. If that is all your judgment says, you will have to bring what is known as an adversary action in the bankruptcy case -- essentially a lawsuit within a lawsuit, in which you will have to prove that the her debt to you resulted from fraud. Your best bet would be to get a bankruptcy lawyer to help you with this.

The dollar amount at stake may be quite modest given that this was a small claims judgment. You may find it difficult to get a lawyer unless you are willing to pay by the hour. Even then, you may find that the debt is too small to justify the expense.

Good luck.

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Answered on 10/27/09, 7:17 pm


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