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Monday, January 28, 2008

Bad Judges and Cockroaches, Part II

In a post the other day, I recounted my most recent encounter with what appears to be a bad judge. Now we return to that topic.

Let's say that I am wrong about my legal-malpractice lawsuit not being a "claim" under bankruptcy law. Let's say that Judge Allwin Horn is correct in his assessment that my lawsuit accrued prior to Richard Poff's bankruptcy petition, and therefore I should have to seek leave from bankruptcy court before proceeding.

I still think Horn is a bad judge, and here is why.

In his ruling, Horn gives me (nor Poff, for that matter) no clue as to what he based his decision on. And I have found this to be common practice among judges. A judge will simply rule that a motion is denied, or a party must do such and such, while giving absolutely no reason for the ruling.

If Horn had said his ruling was based on this case law, or that procedural rule, I could look up the law and be satisfied that I was being treated fairly and correctly under the law. But his written ruling gives no indication that it is based on anything.

And you know what? He and other Alabama judges get away with this all of the time. Why? Because Rule 52 of the Alabama Rules of Civil Procedure allows them to. Without going into too much detail, the rule essentially says that it is not necessary for judges to explain most of their rulings on motions. This is one of many, many things wrong with our justice system, but that's a subject for another day.

There is nothing to keep Horn, or any other judge, from explaining what he based a ruling on. It just is not required.

Since Horn gave no clues in his written ruling, I asked him during a hearing what he based his ruling on. Know what the judge said? He said it was "his impression" that the law required me to seek leave from the bankruptcy court. It was "his impression" that my lawsuit was considered a claim for bankruptcy purposes.

Translation: He didn't know what the frick the law really is, and he wasn't going to bother to find out.

Then he threw out this little pearl: "If I'm wrong, you can appeal me."

I've heard that from two other judges, J. Michael Joiner and G. Dan Reeves in Shelby County, and they both have been bad--criminal, in fact. So you can see why I don't think much of Allwin Horn at this point.

And here's another reason. Even if the term "claim" applied to my lawsuit, it still is not barred under bankruptcy law. Under 11 U.S. Code 523, several exceptions are listed to discharge of debts in a bankruptcy case. The section states that an individual debtor will not be discharged from any debt for money that was obtained by "false pretenses, a false representation, or actual fraud" or "for willful and malicious injury by the debtor to another entity or to the property of another entity."

My lawsuit, filed before I ever was notified that Poff had filed for bankruptcy, alleges fraud and willful and malicious injury. Therefore, it is not barred.

Does Allwin Horn make any mention of this in his ruling. Nope.

I will keep you posted on the latest happenings in this installment of "As the Judges Turn . . . "

And by the way, upon conducting further research, I am even more convinced that I am correct about my professional-malpractice lawsuit not being a claim under bankruptcy law. In fact, I've uncovered real strong indicators that another Republican judge, in this case Allwin Horn, is blowing serious smoke up my fanny.

More on that coming up.

Before we go, let's look at a case that has some similarities to mine--except this one has been in the national news and involves a whole lot more money. It's the case of Mike Nifong, the "Duke lacrosse" prosecutor who recently filed for bankruptcy.

In his filing, Nifong listed assets of $243,898 and debt of $180.3 million, including $30 million to each of the six lacrosse players who have sued him. Legal experts said Nifong might have to pay damages despite his bankruptcy filing if the player's can prove "malicious and willful" injury.

It's interesting that Nifong listed the six $30 million lawsuits filed against him in his bankruptcy filing. Richard Poff never listed my lawsuit against him in his filing.

2 comments:

Anonymous said...

Circuit Court judges do not write opinions on every motion because they do not have the time. A jefferson county judge probably has close to 1000 cases on his docket at any time. usually, the judge does not even have a clerk, although some do. given the extensive motion practice in civil suits, if judges were required to issue opinions on every ruling, the courts would grind to a halt. state judges rely on the parties to be informed on the legal issues. therefore, if the judge is clearly wrong, he knows that one party will take it to the appellate court for review at some point.

as for your claim, i am 99% sure that it is a "claim" under the code. I am telling you that you had better go file something in bankrutpcy court, or you may find yourself holding the bag.

a case similar to yours is found at 264 b.r. 685, in re parker as i recall. look at what the 10th circuit did there. your claim may not be dischargeable, but the bankrutpcy court has the jurisdiction to make such a determination.

justice seeker said...

Anonymous is way off. I've read In re Parker, 264 B.R. 685, 689 (B.A.P. 10th Cir. 2001),. aff’d, 313 F.3d 1267 (10th Cir. 2002). That case has to do with bankrutpcy court not "legal ethics "(that's a joke). One would have to have won a ruling award damages in the legal malpractice case before any claim could be filed. Without a favorable ruling the bankruptcy court would surely dismiss any claim filed.
Legal Schnauzer wasn't filing in bankruptcy court for an award--from what I gather he was filing against his attorney for possible ethic violations and for breaching the standard of care owed.

The Judge's ruling is questionable and should be reported and appealed, but remember--Judges are lawyers in black robes-the lawyer spots never fade away.