Legal Question in Bankruptcy in New York

bankruptcy

Back in August 1998 My wife and I filed for Bankruptcy and we listed as one of the creditors a landlord who back in 1997 obtained a judgment against my wife and I the judgment was handled by her son in law who is a attorney the women died before we filed the bankruptcy but at that time I did not know when she died until now this bankruptcy is still active because of a on going personal injury case still pending in court the son in law has laid claim to the bankruptcy stating that it was the wish of her to pass this on to her children to collect this judgment now at the time of her death there was no will can he get away with this and claim the money that his mother in law filed in court back in 1997


Asked on 7/05/08, 8:29 pm

1 Answer from Attorneys
Nancy Delain Delain Law Office, PLLC

Re: bankruptcy

Let me get this straight. Your bankruptcy petition, filed in 1998, is still active now, ten years later? With a personal injury case mixed up in it somehow?

You folks need to hire a lawyer to get this mess straightened out. Contact an attorney who is geographically local to you; the NYS Bar Association (www.nysba.org) or your local county bar can be good sources for referrals if you need one.

In general, if a judgment exists, and a bankruptcy petition includes in it a proper listing of the debt underlying the judgment, Debtor can move under NY state law to get the judgment averted (expunged, removed, deleted) if at least one year has passed since discharge of the bankruptcy case. Even if the bankruptcy case has not discharged or if one year has not yet passed since discharge, no one can collect on a properly listed debt unless Creditor has been granted relief from the automatic stay that is in place on every bankruptcy case upon filing. Debtor would generally know about that motion because the court provides notice of motions for relief from the automatic stay to the attorney of record or, if Debtor is not represented, to Debtor.

Some debts are not dischargeable in bankruptcy: they include judgments where the underlying debt is restitution for a personal injury to another that was adjudicated against Debtor, student loans, child support...things like that. In those cases, Debtor will have to pay the debt and the judgment will not be averted, even under state law, until the judgment is satisfied (paid off).

Hope this helps.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

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Answered on 7/06/08, 1:41 am


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