Adversary Complaint Draft

[Chankoowashtay]

I recently attended a 341 meeting. I'm the creditor. i have a court order against the debtor and a wage garnishment that was stopped due to the filing of the bankruptcy. I want to draw up an adversary complaint draft and attach it to the adversary complaint cover sheet(B-104). How do i start an adversary complaint draft? What does it look like and what info should it include? Thank you. Theo

ANSWER: I'm not sure what sort of complaint you think you can file.  If this is a Chapter 13, about all you can do is file a claim.  If it is a Chapter 7 and your claim was based on fraud or some other bad act by the debtor, you may be able to file a complaint to have your debt determined to be non-dischargeable.  I'm not sure I would recommend trying to do that by yourself, without legal counsel, but a simple complaint form can be found(for example) at http://www.uslegalforms.com/prodpages/US-BKR-506.htm%7Calllaw.  I'm sure you can find others on the internet if you look.  If the debtor has been hiding assets or might have other issues, a complaint to deny the discharge totally might be possible.  Please note that any such complaint to deny discharge or dischargeability of debt must be filed promptly(usually within 2 months of the first meeting of creditors -- there should be a notice to that effect on the bankruptcy notice you received).

Before you file a complaint to deny discharge or dischargeability of debt, review 11 U.S.C. Section 523 and 727 to make sure your complaint has a chance of standing up in court.

If you want to give me more facts about the bankruptcy and about the court order you received against the debtor, I'd be happy to respond to a follow-up.

---------- FOLLOW-UP ----------

Good evening. I'm new at this so i apologize for not giving all the details initially. O.K. the judgement is for attorney fees that I had to spend because during our divorce the debtor failed to comply with the court order that stated Petitioner is to cooperate in executing the transfer of title to the home(which was awarded to me. After numerous attempts by my former attorney to get debtor/petitioner to sign the quit claim deed(california)we went back to court to ask the superior court judge to allow the county recorder clerk to sign on behalf of the debtor/petitioner. The judge granted our request and because we asked for reimbursement on this which we should not have had to incur, the judge granted us $3090.00 in attorney fees. I filed a writ of execution and a wage garnishment order and had the sheriffs dept serve the debtor's employer. The employer started garnishing her wages and sent the funds to the sheriffs dept to be dispersed to me.The sheriffs dept is currently holding $1990.00 of the total debt. There is interest that has been accruing at the rate of 0.84 per day and is currently up to $3249.28 The debtor filed a claim of exemption. I filed a opposition to the claim of exemption and a hearing was set. At the hearing the judge upheld his original order and ordered that the sheriffs dept release $1000.00 of the $1990.00 to be released to me and the rest to be refunded back to the debtor. He also ordered the debtor to pay $300.00 per month plus interest until debt was paid in full. Debtor then upset with judges order filed for bankruptcy. This stopped the wage garnishment and the money to be released to me being held by the sheriffs dept. So because of the debtor being in clear violation of the judges orignal court order in the divorce is what caused me to have to spend additional money on an attorney just to get her name of the property deed. The judge agreed it should have been done in a timely matter. It wasnt and this was the result. So with all the info. i provided, do i have a dischargeable or non dischargeable claim? Looking forward to response. $4242323544 if ud like to call.

[Traveon]

I read your two follow-ups.  Basically, I believe that the debt owed to you is non-dischargeable without the need to file a complaint in the bankruptcy court.  Under Sec. 523(a)(15), debts incurred by the debtor "in the course of a divorce or separation" and owed to a spouse or former spouse is automatically nondischargeable.  It sounds as though the situation you described arose during the divorce(that is, was part of it).  If that's the case, once the debtor receives her discharge, you can continue to try to recover on the judgment you have.  (If the debtor is represented by an attorney, you may want to mention this to the attorney to see if he or she disagrees.  You don't want to wind up violating the debtor's discharge if my analysis is wrong.  If the debtor's attorney takes a contrary position, find out why).

The money held by the sheriff is a trickier problem.  Technically, the trustee in bankruptcy could go after it for his estate.  However, it's unlikely that he will unless there are other assets to administer.  Also, the debtor could claim the money exempt under the rules applicable in federal bankruptcy(which are different from those which the state court applied in your earlier hearing).

I suspect that the debtor probably won't fight you for the money once she realizes that the debt owed to you is not dischargeable.  The trustee is not likely to administer the funds in the sheriff's hands if there are no other funds or assets to administer.  Once the trustee closes the case(you can get proof of that by looking at the court docket sheet or even inquiring of the trustee), you can then try to get the funds from the sheriff.  You can ask the sheriff what is required of you to get those funds.  Hopefully, there won't be a lot of administrative roadblocks thrown in your way.

Best of luck.