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Sister state judgment
A California Superior Court Default Judgment for Fraud is accorded collateral estoppel effect by the Bankruptcy Court in a 523 action objecting to discharge of the same claim based on fraud. In re Younie, 211 B.R. 367 (9th Cir. BAP 1997). Harry Rebhuhn
Sent: Monday, December 21, 2009 7:16 PM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Sister state judgment
Thanks, that's it Nourbaksh, which says that the issue preclusion rules of the state where the default judgment was taken control the outcome of a summary judgment motion in the 523 action. Recall that in Nourbaksh, the Florida judgment included a specific finding of fraud and the Debtor lost the argument that the elements of collateral estoppel could not be met by a fraud finding made by mere prove up because that would not be "fully litigated." The 9th said, "No, Florida law says the default finding is "fully litigated," the Florida court found fraud, and therefore Debtor loses."
In my client's case, there is no finding of fraud, just simple money judgment by default on a complaint that makes allegations of fraud - oughta be distinguishable.
Mark J. Markus wrote:
Creditor must still file a 523 action.
See In re Nourbaksh, 67 F.3d 798 (9th Cir. 1995), holding that a default judgment is given collateral effect in a subsequent bankruptcy discharge hearing.
However, note that all elements of whichever section of 523 is being argued must be met by the creditor. Thus, for example, if alleging the 523(a)(2)(A) fraud exception, if the judgment states the fraud was for money, property, or services obtained via "actual fraud", then I think they can prevail on a MSJ just based on the default judgment. There may be arguments to be made if all the elements of whichever 523 section is being alleged have not been proven in the underlying judgment.
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Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw. com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw. com/bankruptcy- blog/2008/ 09/debt-relief- agencies- definition/)
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johnl@teconectamos. com wrote:
Client debtor on $500k sister state judgment, fraud is among the
allegations made in the underlying sister state complaint, default
judgment taken in sister state on dollar amount only, no findings
whatsoever on the fraud allegations, just a prove up on the money.
So . . . I forget, what happens when client files Ch 7?
Thanks
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charset="windows-1251"
someone needs to file a 523(a)(2) complaint.
David A. Tilem
Certified Bankruptcy Specialist*
Law Offices of David A. Tilem (a debt relief agency)
206 N. Jackson Street, #201, Glendale, CA 91206
Tel: 818-507-6000 Fax: 818-507-6800
* Bankruptcy specialist cert. by State Bar of CA Bd of Legal
Specialization.
johnl@teconectamos.com
Sent: Monday, December 21, 2009 11:10 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Sister state judgment
Client debtor on $500k sister state judgment, fraud is among the
allegations made in the underlying sister state complaint, default
judgment taken in sister state on dollar amount only, no findings
whatsoever on the fraud allegations, just a prove up on the money.
So . . . I forget, what happens when client files Ch 7?
Thanks
charset="windows-1251"
Message
someone needs to file a
523(a)(2) complaint.
David A.
Tilem
Certified Bankruptcy
Specialist*
The post was migrated from Yahoo.
Creditor must still file a 523 action.
See In re Nourbaksh, 67 F.3d 798 (9th Cir. 1995), holding that a default
judgment is given collateral effect in a subsequent bankruptcy discharge
hearing.
However, note that all elements of whichever section of 523 is being
argued must be met by the creditor. Thus, for example, if alleging the
523(a)(2)(A) fraud exception, if the judgment states the fraud was for
money, property, or services obtained via "actual fraud", then I think
they can prevail on a MSJ just based on the default judgment. There
may be arguments to be made if all the elements of whichever 523 section
is being alleged have not been proven in the underlying judgment.
*************************
Mark J. Markus
Law Office of Mark J. Markus
11684 Ventura Blvd. PMB #403
Studio City, CA 91604-2652
(818)509-1173 (818)509-1460 (fax)
web: http://www.bklaw.com/
This Firm is a Qualified Federal Debt Relief Agency (see what this means at http://bklaw.com/bankruptcy-blog/2008/0 ... efinition/)
________________________________________________
NOTICE: This Electronic Message contains information from the law office of Mark J. Markus that may be privileged. The information is intended for the use of the addressee only. If you are not the addressee, note that any disclosure, copy, distribution or use of the contents of this message is prohibited.
IRS CIRCULAR 230 NOTICE: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this communication (or in any attachment) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed in this communication.
johnl@teconectamos.com wrote:
> Client debtor on $500k sister state judgment, fraud is among the
> allegations made in the underlying sister state complaint, default
> judgment taken in sister state on dollar amount only, no findings
> whatsoever on the fraud allegations, just a prove up on the money.
>
> So . . . I forget, what happens when client files Ch 7?
>
> Thanks
>
>
> ------------------------------------
>
> Yahoo! Groups Links
>
>
>
>
The post was migrated from Yahoo.
Client debtor on $500k sister state judgment, fraud is among the
allegations made in the underlying sister state complaint, default
judgment taken in sister state on dollar amount only, no findings
whatsoever on the fraud allegations, just a prove up on the money.
So . . . I forget, what happens when client files Ch 7?
Thanks
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The post was migrated from Yahoo.