Leaderboard 728 X 90

Friday, February 15, 2008

Bad Judges and Cockroaches, Part III

Let's return for a moment to our journey into the murky world of bankruptcy and legal malpractice. In our previous installments, I've pointed to evidence that makes me think another Republican judge, this time Allwin Horn of Jefferson County, Alabama, is blowing some serious smoke up my fanny. Let's take a look at some more evidence that backs up that argument.

As I noted in my first post on this subject, I'm hardly an expert on bankruptcy law. Heck, most lawyers in this country aren't experts in the labyrinthine procedures of the bankruptcy code, so I don't feel so bad. But I have become somewhat of an expert at detecting bad judges, particularly when they are Republicans and seem to want to provide zero information to explain their rulings.
Experience has taught me that's usually because there is no law to support their rulings. And I suspect that's what is going on in my legal malpractice case against Richard Poff, my second attorney. (My first attorney was Jesse P. Evans III, then of the Birmingham firm Adams & Reese/Lange Simpson. An associate, Michael Odom, did most of the work on my case. Much more about these two gentlemen, and their handling of my case, in future posts.)

As I've noted, Judge Horn has ruled that my professional-malpractice lawsuit is a claim that requires me to seek permission from the bankruptcy court in order to proceed in state court. He made this ruling even though Poff's bankruptcy case was concluded more than two years ago, and Poff never mentioned me or my lawsuit in his papers filed in bankruptcy court.

I contend that a lawsuit for professional malpractice does not entail a "right to payment" or an "enforceable obligation" that would constitute a claim under bankruptcy law. Horn has not offered one sentence, not one word, to indicate what law he is basing his ruling upon. (This, unfortunately, is common practice for trial-court judges--one of many things that need to be changed about our court system.)

The fundamental question is this: Is my lawsuit for professional malpractice dischargeable under the bankruptcy code? If it is dischargeable, then Poff is free and clear, as I understand the law.

But my research indicates that, even if my lawsuit is considered a claim, it still is not dischargeable. Section 14.4.2 of Consumer Bankruptcy Law and Practice states that the bankruptcy code presents two categories of "exceptions to discharge."

The first category consists of debts that are excepted from discharge regardless of whether the issue is raised during the bankruptcy case. The second category of exceptions consists of debts that are excluded from the discharge only if their nondischargeability is raised and determined during the bankruptcy case.

Among exceptions in the first category are "debts not listed by the debtor." Well, my lawsuit was not listed by Richard Poff. My name is not listed anywhere in his papers. I never received a Notice of Bankruptcy, which I understand normally goes out to creditors.

I did receive a Suggestion of Bankruptcy, notifying me that my case in state court was stayed pending a resolution on Poff's bankruptcy case. That's all it said. Did not say I was a creditor and gave no information about what I was to do, or any deadlines for doing it, other than to cease all action in state court until the bankruptcy case was concluded--which I did.

The Suggestion of Bankruptcy was dated August 5, 2005, and Poff's debts were discharged on August 17, 2005. The hay pretty much was already in the barn before I ever heard about the bankruptcy case.

What if my lawsuit had been listed and fell in the second category noted above? According to Section 14.4.2 of Consumer Bankruptcy Law and Practice, I would have been required to raise my nondischargeability issues by filing an adversary proceeding. "The deadline for commencing such a proceeding is sixty days after the first date set for the section 341 meeting of creditors. The court gives at least thirty days notice of this deadline . . . "

I received no notice of a 341 meeting or any deadline. The court evidently did not consider me a creditor with a "claim." At the time, Richard Poff evidently did not consider me a creditor with a claim. And most importantly, Poff's own bankruptcy attorney, a fellow named Jonathan S. Wesson, evidently did not consider me a creditor with a claim.

If Mr. Wesson thought I had a "claim" under bankruptcy law, it seems that he would have included me in Poff's papers and made sure I received proper notice. He didn't do that. I suspect that's because he knew I wasn't a creditor.

As I noted in my previous post on this subject, I asked Judge Horn in a hearing what he based his finding on. He said it was "his impression" that the law required me to get permission from the bankruptcy law.

Funny, I've never read that language in the judicial oath: "I swear to uphold my impressions of the law, so help me God." (I guess you would lay your hand on a copy of a Rich Little video to take that oath.)

So far, though, I've found nothing terribly amusing, or accurate, about Judge Horn's impressions. If there's anything in the bankruptcy code, or case law, that requires someone in my situation to seek permission of the bankruptcy court before proceeding in state court, I sure haven't found it.

Update: A reader who seems to be knowledgeable on such matters has alerted me to a case involving a legal-malpractice lawsuit and a defendant attorney who had gone through bankruptcy. I haven't had a chance to fully digest the case yet, but it appears to have numerous similarities to my situation. Will follow up with more details soon.

No comments: