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微博《楊清泉律師專欄》CREDITOR HAS BURDEN OF PROVING CLAIM IS NOT DISCHARGEABLE(Part I)
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時間:04/27/2011
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《楊清泉律師專欄》CREDITOR HAS BURDEN OF PROVING CLAIM IS NOT DISCHARGEABLE(英文版)
Creditor is required to prove by a preponderance of evidence that his claim against debtor is not dischargeable in bankruptcy. Documentary evidence has much weight and normally allows creditor to satisfy his burden of proof. For instance, if creditor alleges that debtor made a written representation that he had $100,000 of liquid assets at the time debtor applied for the loan, a written representation signed by debtor to that effect addressed to creditor satisfies the threshold preponderance of evidence to prove that fact. Thus, even if debtor vehemently denies that he signed the document, he would not have the preponderance of evidence, unless he can prove by other documentary evidence and a handwriting expert that the signature on the document was not his. What happens if both creditor and debtor have no documents showing what really happened or what the agreement was? Then, it is a matter of who is more credible to the court. But what happens if the testimony of creditor and debtor are equally credible and there is no other proof presented as to who is telling the truth? Does the court need the wisdom of Solomon to decipher what the truth is by cutting the baby in half? Not really.
If both creditor and debtor are equally credible, the creditor loses and the debtor wins, because creditor as plaintiff in objecting to discharge of his claim did not satisfy his burden of proof to show that the claim is not dischargeable by a preponderance of evidence. There is no preponderance of evidence in favor of creditor because both parties did not produce any documentary evidence and the testimony of both parties was equally credible to the court. Since the weight of the evidence presented by both parties is equal, creditor failed to carry his burden of proof and loses the case. The claim is therefore discharged.
《楊清泉律師專欄》CREDITOR HAS BURDEN OF PROVING CLAIM IS NOT DISCHARGEABLE(Part II)
Creditor is required to prove by a preponderance of evidence that his claim against debtor is not dischargeable in bankruptcy. Documentary evidence has much weight and normally allows creditor to satisfy his burden of proof. For instance, if creditor alleges that debtor made a written representation that he had $100,000 of liquid assets at the time debtor applied for the loan, a written representation signed by debtor to that effect addressed to creditor satisfies the threshold preponderance of evidence to prove that fact. Thus, even if debtor vehemently denies that he signed the document, he would not have the preponderance of evidence, unless he can prove by other documentary evidence and a handwriting expert that the signature on the document was not his. What happens if both creditor and debtor have no documents showing what really happened or what the agreement was? Then, it is a matter of who is more credible to the court. But what happens if the testimony of creditor and debtor are equally credible and there is no other proof presented as to who is telling the truth? Does the court need the wisdom of Solomon to decipher what the truth is by cutting the baby in half? Not really.
If both creditor and debtor are equally credible, the creditor loses and the debtor wins, because creditor as plaintiff in objecting to discharge of his claim did not satisfy his burden of proof to show that the claim is not dischargeable by a preponderance of evidence. There is no preponderance of evidence in favor of creditor because both parties did not produce any documentary evidence and the testimony of both parties was equally credible to the court. Since the weight of the evidence presented by both parties is equal, creditor failed to carry his burden of proof and loses the case. The claim is therefore discharged.
《楊清泉律師專欄》CREDITOR HAS BURDEN OF PROVING CLAIM IS NOT DISCHARGEABLE(Part II)
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個人、公司破產，第7、13章，破產法庭出庭訴訟
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