Legal advice needed in Socal

[Bobboloo]

Any Pelican attorneys in the Socal area that can give me some advice to steer me in the right direction?

I just need some brief telephone/email advice. I can trade my Porsche mechanical and sheet metal repair skills.

Brief synopsis:

1. Landlord will not respond to demand for payment; return of security deposit.
2. Small claims filed; trial tomorrow. (6 months after the deposit return was due)
3. Landlord filed Notice of Stay last Friday. reason: Bankruptcy Chapter 7 (petition filed last November)
4. Found my name on list of creditors yesterday with a bogus address. (saw other names of tenants with bogus addresses)
5. Trustee says there is no money or says he can't find it.

So here's the thing. I want to proceed and get a judgement against this joker.

The landlord has at least 4 properties I know of that she bought in the boom and is not paying for. She's still collecting rent on the properties and the banks are trying to get motions of relief from the stays so they can foreclose and move on.

It's doubtful I'll ever see my $5300 but I still want a judgement against her.

Can I file fraud or theft charges with USBC to remove the stay so I can proceed with my small claims? I believe she knowingly deceived the court process with bogus addresses for creditors. I paid rent at the same address for 3 years other tenants even longer. She amazingly somehow got my address correct for filing a Stay but couldn't get mine or other previous tenants (creditors) addresses correct so they could be notified of the Bankruptcy.

Small Claims trial is tomorrow. Should I try to get another reset?

This lady has probably stolen $50k in security deposits. Should I contact the DA? She must be hiding money somewhere. She's collecting rent on properties that she's not paying for.

I'm broke as can be right now but I will gladly pay you Tuesday for a hamburger today.

TIA Bobby

[Rot 911]

This is a BK issue now. If what you are saying is true and can prove landlord submitted fraudulent address on you then you need to file a motion with the BK court to set aside the stay as it pertains to your case. Tell the small claims court judge you are going to do this and ask for a continuance.

[RWebb]

Todd Serota is an IP atty in LA

he may know a type of atty who can help you - you MAY need federal ct. expertise as BK usually/often goes to a special fed. BK ct.

- he is active in the DE scene and even set up his own school; good guy

[stomachmonkey]

1099 her $5300 bucks.

[Bobboloo]

Thanks Kurt will do.

Randy do you have contact info for Todd so he might suggest a BK attorney? I'll need help with the exact forms I'll need like "Proof of Claim", "Notice of Motion" etc.

[RWebb]

unfortunately no - I haven't seen him in several years (since I broke up w/ an Ojai gf)

[Bobboloo]

Thanks Randy I'll continue the search.

[McLovin]

You cannot go forward with the trial tomorrow, now that you know of the bky. That would be a knowing and willful violation of the automatic stay and you will be in a world of hurt if you do that. You must advise the court tomorrow about the bky. The small claims court will stay (put on hold) your case.

Right now, all your remedies are in the bky court.

It sounds like the Trustee has already looked at the Ch 7 case and determined it is a "no asset" case. That's too bad, because there will be no assets to collect and pay to creditors. You could file a Proof of Claim in the Ch. 7, but that won't do you any good if it is a no asset case.

Your only hope is to try to get the discharge of the debt denied. There are basically 2 ways that can happen: (1) the Trustee files a complaint seeking to deny the discharge as to all creditors, or (2) you file a complaint seeking to deny the discharge of his debt to you.

(1) isn't going to happen, since there is no $$ in the estate to pay the trustee to hire a lawyer to do it.

(2) realistically sounds like it isn't going to happen because you don't have the $$ to do it, and for a $5K debt it isn't cost effective to do it. Plus, from what you have posted, it's not clear there are any grounds for it anyways.

There are plenty of bky lawyers, just do an Internet search and you'll find plenty in your area. Problem is, any of them are going to require a retainer (probably at least $1500).

Creditors get screwed in bky, that's what bky is all about. IMO you would be throwing good money after bad. The debt that he owes you is highly likely one that is properly discharged in a bky (it sounds like just a normal biz debt), and trying to get his entire discharge denied doesn't seem likely.

(One thing you can do is try contacting the United States Trustee's office, and the Chapter 7 Trustee's office, to complain that the filing is bogus because he intentionally didn't list the proper addresses of creditors. The upside to that is it won't cost you anything, except your own time. The downside is it is almost certainly a fruitless endeavor).

[McLovin]

"This lady has probably stolen $50k in security deposits. Should I contact the DA? She must be hiding money somewhere. She's collecting rent on properties that she's not paying for."

That is something the US Trustee or Chapter 7 Trustee might be interested in. The practical problem is that unless there is some "seed money" in the bky estate (for example, there is $50,000 in cash or other liquid assets to fund an investigation/litigation), it's hard to get them interested in looking or taking action.

[Bobboloo]

I understand what you are saying and realize that I'll never see the money. For me the point is that this person stole the security because it wasn't their money to spend. If there is no money, that the trustee can find, then the deposit was stolen by the debtor.

I'm not alright with someone stealing my money. I want some form justice whether it be criminal charges or a judgement on the debtors record.

California Civil code states that security deposits are prior to all other creditors. I realize BK trumps the state court but the BK judge has the power to grant a relief from the stay so that I can proceed with my claim in Small Claims. I understand that the BK judge is there for the debtors protection but some people should not be protected in certain situations and this is one of them.

[Bobboloo]

Originally Posted by McLovin

"This lady has probably stolen $50k in security deposits. Should I contact the DA? She must be hiding money somewhere. She's collecting rent on properties that she's not paying for."

That is something the US Trustee or Chapter 7 Trustee might be interested in. The practical problem is that unless there is some "seed money" in the bky estate (for example, there is $50,000 in cash or other liquid assets to fund an investigation/litigation), it's hard to get them interested in looking or taking action.

I talked with the trustee this morning and he suggested I find someone/lawyer for legal advice and wished me good luck. He couldn't say much more obviously for legal reasons. He sounded frustrated as far as finding any money.

[McLovin]

Originally Posted by Bobboloo

I understand what you are saying and realize that I'll never see the money. For me the point is that this person stole the security because it wasn't their money to spend. If there is no money, that the trustee can find, then the deposit was stolen by the debtor.

I'm not alright with someone stealing my money. I want some form justice whether it be criminal charges or a judgement on the debtors record.

"I know I'm never going to see a penny of my money back, but it's for the principle/justice/whatever" never comes out well.

If I were you, I'd analyze what the best business decision for you is, given the law and the facts, and taking out emotion/justice, etc. completely out of the analysis, and follow that course.

But, best wishes and good luck.

[RWebb]

Originally Posted by McLovin

"I know I'm never going to see a penny of my money back, but it's for the principle/justice/whatever" never comes out well.

If I were you, I'd analyze what the best business decision for you is, given the law and the facts, and taking out emotion/justice, etc. completely out of the analysis, and follow that course.

But, best wishes and good luck.

- that advice normally costs about $200

think hard

[Bobboloo]

Originally Posted by McLovin

"I know I'm never going to see a penny of my money back, but it's for the principle/justice/whatever" never comes out well.

If I were you, I'd analyze what the best business decision for you is, given the law and the facts, and taking out emotion/justice, etc. completely out of the analysis, and follow that course.

But, best wishes and good luck.

Preaching to the choir with that advice. I'm way past that point.

I removed the emotion before I ever started. I knew there was a long road ahead of me because with this person I would need to.

1. Prove the case and win a judgement. (no problem I'm ready)
2. Get a Writ of Execution because the person I'm suing would still probably not pay.
3. Find the money and have a Peace Officer execute the Writ.

These things all take time and the more time that passes the less likely you are of success. So on that note enough time has been wasted here with this discourse. I posted here looking for guidance from a professional.

If there are any lawyers on the board that I can get advice from, my offer stands.

If the advice is nothing more than sending me to another attorney, be it district attorney or a bankruptcy lawyer whatever then great.

[RWebb]

"I posted here looking for guidance from a professional."

and you got it - the best advice; tho obviously not what you wanted to hear

b/c you don't like the advice you should pay careful attn to reconsidering

why?? b/c you are about to spend $8k or more in something that will not repay you much, if anything at all

[McLovin]

Winning your small claims case and getting a writ of execution are things you could have easily done yourself. Finding assets to levy on probably would have been more difficult, but you could have tried that yourself, too. You were doing all the right things, and it made sense for you.

But the bky really changed everything. Unless you get an order from the bky court saying otherwise, your state court action is dead, and the debt owing to you is going to be legally wiped out.

Prior to the bky, you were on a relatively short and easy road, because you had the facts and the law on your side, and a relatively summary way of getting your remedy.

To cut to the chase, after the bky was filed, your road became a dead end, at least if you are analyzing this from a truly business/economic standpoint. Your only real remedy now is to pursue a non-dischargeability complaint, seeking a judgment from the Bky court finding that her debt to you is not discharged in the bky.

From an economic standpoint, the second you hire a lawyer to do that for you, you have lost. Given the amount of the debt, that makes no economic sense. That lawyer will require a $2500 retainer (minimum), and you'll never see any of that back (that's just a retainer, you'll still have to pay the $300+ hr).

You could try filing a non-dischargeability complaint yourself. You could probably figure it out by doing research on the Internet, carefully reading the rules on the Bky court website, and using as many forms as possible from that website. But unlike a small claims action, litigating a non-discharg. complaint in the Fed Bky court is not something designed to be "user friendly" to non-lawyers.

It is possible that if you just file a non-discharg. complaint, you can get the debtor to the table and reach a settlement. She will be fighting the same issue as you - she will have to pay her lawyer to defend against the complaint, so maybe she'll decide to pay that money to you instead.

(But, again, you need to be sure you actually have good legal and factual basis for a non-discharg. complaint. Based on what you have written, it does not appear that you really do. At least, not any really "clear cut" grounds).

[McLovin]

P.S. One way to get free advice from a lawyer is to call them as a potential client, and try to arrange a consultation, which is usually free. Look in your yellow pages or on line for bky lawyers, start calling them, tell them you are a creditor in a bky who may need representation, and you'd like to meet with them to discuss.

They will ask you on the phone about your matter. After you tell them your basic facts and the amount of the debt, almost all of them will not agree to spend their time meeting with you, because they will see the dead end. But if up front you tell them you would be willing to provide a retainer and pay their hourly rate if it appears legal action makes sense, you may get someone to meet with you.

[dad911]

Sorry, I am in NJ and not an attorney, but I was able to get another attorney that was already involved in a bankruptcy case to 'piggy-back' my issues for little expense, because he was there anyway and was already up to speed in the bankruptcy.

[Bobboloo]

Originally Posted by McLovin

Winning your small claims case and getting a writ of execution are things you could have easily done yourself. Finding assets to levy on probably would have been more difficult, but you could have tried that yourself, too. You were doing all the right things, and it made sense for you.

But the bky really changed everything. Unless you get an order from the bky court saying otherwise, your state court action is dead, and the debt owing to you is going to be legally wiped out.

Prior to the bky, you were on a relatively short and easy road, because you had the facts and the law on your side, and a relatively summary way of getting your remedy.

To cut to the chase, after the bky was filed, your road became a dead end, at least if you are analyzing this from a truly business/economic standpoint. Your only real remedy now is to pursue a non-dischargeability complaint, seeking a judgment from the Bky court finding that her debt to you is not discharged in the bky.

From an economic standpoint, the second you hire a lawyer to do that for you, you have lost. Given the amount of the debt, that makes no economic sense. That lawyer will require a $2500 retainer (minimum), and you'll never see any of that back (that's just a retainer, you'll still have to pay the $300+ hr).

You could try filing a non-dischargeability complaint yourself. You could probably figure it out by doing research on the Internet, carefully reading the rules on the Bky court website, and using as many forms as possible from that website. But unlike a small claims action, litigating a non-discharg. complaint in the Fed Bky court is not something designed to be "user friendly" to non-lawyers.

It is possible that if you just file a non-discharg. complaint, you can get the debtor to the table and reach a settlement. She will be fighting the same issue as you - she will have to pay her lawyer to defend against the complaint, so maybe she'll decide to pay that money to you instead.

(But, again, you need to be sure you actually have good legal and factual basis for a non-discharg. complaint. Based on what you have written, it does not appear that you really do. At least, not any really "clear cut" grounds).

Thank you very much for taking the time. I really mean that sincerely.

Truth be told I don't have the money to pursue her with an attorney that I may hire.

I believe however she is engaging in criminal activity at this point. I got a copy of the creditor list from BK and I counted no less than 30 tenants she listed as creditors. This could only be for one reason and that is to discharge security deposits that were not loans for her. It was money in trust for her to hold.

When I saw my name on the list I saw a bogus address for me and two other people I know. So last night I went on line and looked up the other tenants and all the addresses were switched just like mine so anyone who should have received notice of the BK did not. Somehow she miraculously got my address right to serve a Notice of Stay.

Also in speaking with the Trustee yesterday he said he can't find any money and wished me luck. I know for a fact that she collects serveral thousand every month on rental property that she is not paying the mortgage on. Where is that money going if the Trustee can't find it?

Security deposits go to the front of the creditors' line. Why is there no money there for the tenants?

So one more question if I may ask it of you? How do I bring this to the BK courts attention? District Attorney? Federal, State?

[Bobboloo]

Originally Posted by dad911

Sorry, I am in NJ and not an attorney, but I was able to get another attorney that was already involved in a bankruptcy case to 'piggy-back' my issues for little expense, because he was there anyway and was already up to speed in the bankruptcy.

That's a thought. I could track down and call all the tenants and see if an attorney would be interested in representing the whole group. Unfortunately if she's hiding the money then it may still be a hard sell to find an attorney.