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微博《楊清泉律師專欄》CREDITOR HAS BURDEN OF PROVING CLAIM IS NOT DISCHARGEABLE(Part II)
法律
時間:04/28/2011
瀏覽: 2089
《楊清泉律師專欄》債權人有舉證的責任來證明索賠不應該予以免除(中文版)
In Re Miga, the chapter 7 debtors owned and operated a used car lot. On July 24, 2008, the plaintiff gave the debtor husband a cashier’s check for $25,000. Debtor negotiated and deposited the check into the business account. Other than a copy of this check, there was no other documentation to memorialize the parties’ agreement with respect to the July 2008 transaction. The parties told the court different stories regarding why plaintiff gave the debtor $25,000. Plaintiff said he gave the debtor the money to buy two cars for him at auction. When he saw debtor after the auction, debtor told him that the auction did not have the type of vehicles that plaintiff wanted. Plaintiff sued the debtor and the business after the debtor failed to return his money. The plaintiff also alleged that the debtors engaged in a series of transactions that reduced their ability to repay creditors. The debtors countered that the money was a loan and that they transactions complained of were efforts to save the business. Neither plaintiff nor debtor presented any documentary evidence to support what each of them was saying. The court found that the plaintiff failed to demonstrate by a preponderance of the evidence that the debtor obtained the check by virtue of a misrepresentation. “Given that the parties’ presented markedly different scenarios of what transpired on the date of the transaction, and neither party has documentary evidence related to the transaction itself so as to substantiate their version of events, the court’s determination rests solely on credibility.” the court said. The parties’ stories were equally credible, and wholly irreconcilable. Therefore, the plaintiff lost because he had the burden of proving that his claim was non-dischargeable under Section 523(a)(2) and (a)(6) . 523 (a)(2) provides that a claim is not discharged if money is obtained by false pretenses, a false presentation or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 523 (a)(6) provides that a claim is not discharged if debtor had willfully and maliciously caused injury to creditor.
Thus, keep your documents and tangible evidence to ensure discharge of debt. Lawrence Bautista Yang is a graduate of Georgetown University Law Center and has been in law practice for thirty years. He specializes in bankruptcy, business and civil litigation and has handled more than four thousand successful bankruptcy cases in California. He speaks Mandarin and Fujien and looks forward to discussing your case with you personally. Please call (626) 284-1142 for an appointment at 1000 S Fremont Ave Bldg A-1 Suite 1125 Unit 58 Alhambra, CA 91803.
In Re Miga, the chapter 7 debtors owned and operated a used car lot. On July 24, 2008, the plaintiff gave the debtor husband a cashier’s check for $25,000. Debtor negotiated and deposited the check into the business account. Other than a copy of this check, there was no other documentation to memorialize the parties’ agreement with respect to the July 2008 transaction. The parties told the court different stories regarding why plaintiff gave the debtor $25,000. Plaintiff said he gave the debtor the money to buy two cars for him at auction. When he saw debtor after the auction, debtor told him that the auction did not have the type of vehicles that plaintiff wanted. Plaintiff sued the debtor and the business after the debtor failed to return his money. The plaintiff also alleged that the debtors engaged in a series of transactions that reduced their ability to repay creditors. The debtors countered that the money was a loan and that they transactions complained of were efforts to save the business. Neither plaintiff nor debtor presented any documentary evidence to support what each of them was saying. The court found that the plaintiff failed to demonstrate by a preponderance of the evidence that the debtor obtained the check by virtue of a misrepresentation. “Given that the parties’ presented markedly different scenarios of what transpired on the date of the transaction, and neither party has documentary evidence related to the transaction itself so as to substantiate their version of events, the court’s determination rests solely on credibility.” the court said. The parties’ stories were equally credible, and wholly irreconcilable. Therefore, the plaintiff lost because he had the burden of proving that his claim was non-dischargeable under Section 523(a)(2) and (a)(6) . 523 (a)(2) provides that a claim is not discharged if money is obtained by false pretenses, a false presentation or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition. 523 (a)(6) provides that a claim is not discharged if debtor had willfully and maliciously caused injury to creditor.
Thus, keep your documents and tangible evidence to ensure discharge of debt. Lawrence Bautista Yang is a graduate of Georgetown University Law Center and has been in law practice for thirty years. He specializes in bankruptcy, business and civil litigation and has handled more than four thousand successful bankruptcy cases in California. He speaks Mandarin and Fujien and looks forward to discussing your case with you personally. Please call (626) 284-1142 for an appointment at 1000 S Fremont Ave Bldg A-1 Suite 1125 Unit 58 Alhambra, CA 91803.
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(626) 284-1142
個人、公司破產，第7、13章，破產法庭出庭訴訟
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