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How does default judgment affect executory contract or rescission?
I agree with Michael. The default judgment makes it a good claim. Prior
to default , A's defense would have been to the formation of contract, but
alas, no rights were exercised.
Bummer for A.
My .02
Christine
Christine A. Wilton,
Esq.
Law Office of Christine A.
Wilton
5011 Argosy Avenue, Suite 3
Huntington Beach, CA 92649
Office: 714-533-9210
Fax: 714-489-8150
Email: attorneychristine@gmail.com
Blog: www.losangelesbankruptcylawmonitor.com
The post was migrated from Yahoo.
If no one gives you a good answer, then mine is worth looking at.
*Judgment*
There is a judgment for 100k that you are unable to set aside. Since your
client exhausted all his state court remedies, any defenses like "there is
no contract" or "impossibility" etc. are all gone. *The merits no longer
matter*.
*The judgment is a 100k unsecured claim against the Estate.*
*Exec K*
You want to tell the Court there is a valid contract that you want to
reject. To do this, you have to explain to the Court why, on the merits,
there is a valid contract. Can you make an argument that there is a valid
contract between your client and a dead guy over the sale of property which
they owned as JT? I have a feeling there are many cases on the matter and
all would say that death would void the K and the land goes to survivor.
Assuming though that you are able to convince the court there is a valid
contract. What are rejection damages for breach? Survivors will argue
breach is at least 100k. *So they get a 100k unsecured claim against the
Estate. *Query, would this make the Judgment void? Or are there now 2
claims against the estate for 100k each?
Seems to me to be the same or worse the Exec contract way.
Your client was happy with 100k for 50% of the property. Your client got a
windfall. Your client slept on his rights and the windfall was taken away.
He is no longer happy with 100k for 50% of the property, he should be.
That's my point of view.
Sincerely,
Michael Avanesian
On Fri, Oct 3, 2014 at 1:36 AM, Holly Roark hollyroark22@gmail.com [cdcbaa]
wrote:
>
>
> The contract that was to be performed:
>
> A & B owned house in joint tenancy.
> B was to give A a quitclaim deed in exchange for $100K, effectively buying
> out B.
> Bank would not give A funds unless she owned house outright.
> B refused to give quitclaim deed to A because B wanted funds first.
> Original contract signed solely by B and delivered to A said A would give
> funds first.
> A handwrote on contract, "funds cannot be assembled without quitclaim
> deed". Then A signed contract and sent back to B.
> B never rejected new terms.
> B never gave quitclaim deed to A.
> A could not assemble funds.
> B died.
> B's interest transferred to A.
> B's heirs sue A for the $100K, saying, "no fair, you got the property but
> we didn't get the $100K promised in the contract".
> B's heirs get default judgment against A.
> Court refuses to set aside default judgment.
> A files Chapter 13 and "rejects" this contract as an executory contract
> (though I am not sure if it quite fits the definition since B cannot
> perform since B died, and may be moot anyway because A got B's interest in
> any event.)
>
> It seems to me at the point that A rejected the term that she pay the
> funds to B first, and then handwrote that she could not perform without the
> quitclaim deed, that they did not have a meeting of the minds and that
> there is a problem in the formation of the contract such that there was in
> fact no contract.
>
> There may be a good case for rescission at least, but since B's heirs
> already got a default judgment against A I am not sure whether that's
> possible, or if in the alternative, this could be construed as an executory
> contact that can be rejected even after a default judgment.
>
> I would appreciate your thoughts.
>
>
>
> Holly Roark
> Certified Bankruptcy Specialist*
> *and Sports Lawyer*
> holly@roarklawoffices.com **primary email address**
> www.roarklawoffices.com
> Central District of California
> Consumer Bankruptcy Attorney
> 1875 Century Park East, Suite 600
> Los Angeles, CA 90067
> T (310) 553-2600
> F (310) 553-2601
>
> *By State Bar of California Board of Legal Specialization
>
>
> **For a quicker response, email me at holly@roarklawoffices.com.
> I only use gmail for my listservs, and am likely to miss private emails
> directed to my gmail account.**
>
>
>
>
If no one gives you a good answer, then mine is worth looking at.JudgmentThere is a judgment for 100k that you are unable to set aside. Since your client exhausted all his state court remedies, any defenses like "there is no contract" or "impossibility" etc. are all gone. The merits no longer matter.The judgment is a 100k unsecured claim against the Estate.---Exec KYou want to tell the Court there is a valid contract that you want to reject. To do this, you have to explain to the Court why, on the merits, there is a valid contract. Can you make an argument that there is a valid contract between your client and a dead guy over the sale of property which they owned as JT? I have a feeling there are many cases on the matter and all would say that death would void the K and the land goes to survivor.Assuming though that you are able to convince the court there is a valid contract. What are rejection damages for breach? Survivors will argue breach is at least 100k. So they get a 100k unsecured claim against the Estate. Query, would this make the Judgment void? Or are there now 2 claims against the estate for 100k each?Seems to me to be the same or worse the Exec contract way.---Your client was happy with 100k for 50% of the property. Your client got a windfall. Your client slept on his rights and the windfall was taken away. He is no longer happy with 100k for 50% of the property, he should be. That's my point of view.Sincerely, Michael AvanesianOn Fri, Oct 3, 2014 at 1:36 AM, Holly Roark hollyroark22@gmail.com [cdcbaa] <cdcbaa@yahoogroups.com> wrote:
The contract that was to be performed:A & B owned house in joint tenancy.B was to give A a quitclaim deed in exchange for $100K, effectively buying out B.Bank would not give A funds unless she owned house outright. B refused to give quitclaim deed to A because B wanted funds first. Original contract signed solely by B and delivered to A said A would give funds first.A handwrote on contract, "funds cannot be assembled without quitclaim deed". Then A signed contract and sent back to B.B never rejected new terms.B never gave quitclaim deed to A.A could not assemble funds.B died.B's interest transferred to A.B's heirs sue A for the $100K, saying, "no fair, you got the property but we didn't get the $100K promised in the contract".B's heirs get default judgment against A.Court refuses to set aside default judgment.A files Chapter 13 and "rejects" this contract as an executory contract (though I am not sure if it quite fits the definition since B cannot perform since B died, and may be moot anyway because A got B's interest in any event.) It seems to me at the point that A rejected the term that she pay the funds to B first, and then handwrote that she could not perform without the quitclaim deed, that they did not have a meeting of the minds and that there is a problem in the formation of the contract such that there was in fact no contract.There may be a good case for rescission at least, but since B's heirs already got a default judgment against A I am not sure whether that's possible, or if in the alternative, this could be construed as an executory contact that can be rejected even after a default judgment.I would appreciate your thoughts.Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T
The post was migrated from Yahoo.
The contract that was to be performed:
A & B owned house in joint tenancy.
B was to give A a quitclaim deed in exchange for $100K, effectively buying
out B.
Bank would not give A funds unless she owned house outright.
B refused to give quitclaim deed to A because B wanted funds first.
Original contract signed solely by B and delivered to A said A would give
funds first.
A handwrote on contract, "funds cannot be assembled without quitclaim
deed". Then A signed contract and sent back to B.
B never rejected new terms.
B never gave quitclaim deed to A.
A could not assemble funds.
B died.
B's interest transferred to A.
B's heirs sue A for the $100K, saying, "no fair, you got the property but
we didn't get the $100K promised in the contract".
B's heirs get default judgment against A.
Court refuses to set aside default judgment.
A files Chapter 13 and "rejects" this contract as an executory contract
(though I am not sure if it quite fits the definition since B cannot
perform since B died, and may be moot anyway because A got B's interest in
any event.)
It seems to me at the point that A rejected the term that she pay the funds
to B first, and then handwrote that she could not perform without the
quitclaim deed, that they did not have a meeting of the minds and that
there is a problem in the formation of the contract such that there was in
fact no contract.
There may be a good case for rescission at least, but since B's heirs
already got a default judgment against A I am not sure whether that's
possible, or if in the alternative, this could be construed as an executory
contact that can be rejected even after a default judgment.
I would appreciate your thoughts.
Holly Roark
Certified Bankruptcy Specialist*
*and Sports Lawyer*
holly@roarklawoffices.com **primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal Specialization
**For a quicker response, email me at holly@roarklawoffices.com.
I only use gmail for my listservs, and am likely to miss private emails
directed to my gmail account.**
The contract that was to be performed:A & B owned house in joint tenancy.B was to give A a quitclaim deed in exchange for $100K, effectively buying out B.Bank would not give A funds unless she owned house outright. B refused to give quitclaim deed to A because B wanted funds first. Original contract signed solely by B and delivered to A said A would give funds first.A handwrote on contract, "funds cannot be assembled without quitclaim deed". Then A signed contract and sent back to B.B never rejected new terms.B never gave quitclaim deed to A.A could not assemble funds.B died.B's interest transferred to A.B's heirs sue A for the $100K, saying, "no fair, you got the property but we didn't get the $100K promised in the contract".B's heirs get default judgment against A.Court refuses to set aside default judgment.A files Chapter 13 and "rejects" this contract as an executory contract (though I am not sure if it quite fits the definition since B cannot perform since B died, and may be moot anyway because A got B's interest in any event.) It seems to me at the point that A rejected the term that she pay the funds to B first, and then handwrote that she could not perform without the quitclaim deed, that they did not have a meeting of the minds and that there is a problem in the formation of the contract such that there was in fact no contract.There may be a good case for rescission at least, but since B's heirs already got a default judgment against A I am not sure whether that's possible, or if in the alternative, this could be construed as an executory contact that can be rejected even after a default judgment.I would appreciate your thoughts.Holly RoarkCertified Bankruptcy Specialist*and Sports Lawyer
holly@roarklawoffices.com**primary email address**
www.roarklawoffices.com
Central District of California
Consumer Bankruptcy Attorney
1875 Century Park East, Suite 600
Los Angeles, CA 90067
T (310) 553-2600
F (310) 553-2601
*By State Bar of California Board of Legal
Specialization
The post was migrated from Yahoo.