Likelihood of Reopening BK Case to Save State Case where claims were not disclosed
Posted: Tue Apr 22, 2014 10:16 am
Each trustee is different. Pick up the phone, call the trustee.
You can ask the trustee to be a coplaintiff, or ask the trustee to agree to hire the lawyer the debtor is using, amend the suit and keep on going, or you can move to abandon, if you have enough exemptions to cover the expected damages.
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Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Apr 11, 2014, at 9:57 PM, Diaz Law Firm wrote:
>
> Dear Listmates,
>
> I seek your opinion and guidance on the following:
>
> Senior citizen client filed a Chapter 7 March 2011, which was discharged July 2011. May 2013 she filed an action in state court for violations of the Labor Code, Elder Abuse and other personal injury claims against her former employer. Judges tentative ruling on a demurrer is to sustain with 15 days leave to amend, based on issue of res judicata and issue preclusion. The court finds plaintiff lacks standing to sue because she did not disclose claims in her bankruptcy schedules as a possible asset of the bankruptcy estate. The failure to disclose is not tied to bad-faith. Senior citizen client just did not know she was supposed to list those items, was just released from hospital with angina, and did not know that she actually had claims against her former employer until after the fact.
>
> I reviewed Cloud V. Northrop (1998) 67 Cal.App.4th 995 where 9th circuit appellate court remanded trial court to give plaintiff leave to amend, to give Plaintiff the opportunity to file a motion to reopen the bankruptcy case and secure the Chapter 7 trustees participation (as the Trustee is the correct person to have standing to file these lawsuits) or abandonment of Plaintiffs claims.
>
> My questions: Have you heard of our local trustees agreeing to participate or abandon in state court cases such as these? Especially when there is no bad-faith? Or, will trustee just ignore all requests?
>
> I appreciate your time in replying and sharing your thoughts. Thank you so much.
>
> Very truly yours,
> Cheryl
> -------
> Cheryl Deptowicz-Diaz
> DIAZ LAW FIRM
> 3435 Wilshire Blvd., #2700
> Los Angeles, CA 90010
> Telephone (213) 232-0103
> Facsimile (800) 343-2957
> cheryl@diazlawfirm.net
> www.diazlawfirm.net
>
>
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