I have a default judgement against someone that has filed for chap 13 bankruptcy.  I am not listed as a creditor in his filing, and I'm inclined to keep it that way.

How long should I wait before filing my next motion?

What sort of motion are you contemplating filing?

The thing is, since you have actual knowledge of the bankruptcy, it doesn't matter that you are not listed and your debt will still be discharged.  (True, it might be difficult to prove you have actual knowledge but why get into that fight?)

Assuming that you have not missed the deadlines, I'd suggest you just go ahead and file a claim in the case and if you have grounds, object to the plan.

Motion to compel interrogatories is my next step.

I think I could make the argument that the judgement is non-dischargeable.(Fraud)

Why would you do a Motion to Compel Interrogatories? Did you give the Debtor some Interrogatories that he hasn't responded to?  Under what basis do you have to serve Interrogatories?  Why not just take their deposition under Rule 2004?

If you want to have the Court determine that your debt is non-dischargable for fraud, presumably under 11 USC 523(a)(2), then you have to file an adversary (and do it prior to the deadline).  As part of the adversary, you can do discovery, including Interroagatories.

Please keep in mind that Fraud is hard to prove and has to be more than "he said he would pay me back and didn't" because that is the case with nearly all debts that get discharged.

Correct, he failed to respond to interrogatories, so my next step would be the motion to compel. He can either answer or the judge would have the Sheriff go pick him up. Small claims court.



So even if I am not listed as a creditor in his Chap 13 filing, the debt he owes me would be discharged?

Even if you are listed as a creditor but you have actual notice of the bankruptcy, your debt would be included and discharged.

In what case did you send the debtor interrogatories?  In the bankruptcy case or small claims court?  Unless you have stay relief from the bankruptcy court, you are not allowed to proceed in the small claims case, even if you don't know about the bankruptcy as it is still a violation of the automatic stay (although not a willful violation).

I ask because you mention small claims court and the sheriff.  Bankruptcy is Federal Court and if someone is being arrested, it is by the US Marshals, not the Sheriff.  Also, it is pretty rare to see someone arrested in bankruptcy court, and certainly not for failure to answer interrogatories.

Before someone gets arrested, you'd have to get an Order compelling the debtor to answer.  Then when they fail to answer, you would do a motion for contempt or motion to show cause why they shouldn't be held in contempt.  From there there is typically some fine assessed, not jail time.  The Debtor would have to repeatedly fail to show up in court before someone is getting arrested and then jail time would only apply if it was criminal contempt, not civil contempt.

Has the 341 meeting of creditors already occurred?  If not, you can attend and get in a few questions though expect if it is more than a few minutes worth, you will be told to go do your own 2004.

Why not just file your adversary case, then send request for admissions such that when they fail to respond, they admit your allegation and you win?

Everything I've done has been at the County Magistrate level. I haven't involved myself in the bankruptcy filing yet. 

I'm unsure if the creditors meeting has occurred yet, I'm gonna call the court tomorrow and ask.

It is important that you don't do anything besides participate in the bankruptcy case (until you have stay relief or the case is dismissed) or you will be in violation of the automatic stay.

You can find out anything you want about a federal case (which includes bankruptcy) for 10 cents a page at www.pacer.gov

I'd suggest finding out the deadlines asap because you don't want to miss the deadline to file a claim, to object to discharge or dischargability, the 341 hearing and such.  

bankruptcy

Did the person sign a personal guarantee?

OP doesn't need a personal guarantee as he already has a judgment against the Debtor so it's clear he has a claim.

The issues are that the Debtor failed to list OP in his schedules and that OP would like to have his debt excepted from discharge.

No, no, no, no, no.

The next thing you should file in small claims is notice of the debtor's pending bankruptcy, and nothing else.  You don't want to violate the automatic stay.

Then file a proof of claim in the bankruptcy court.

A chapter 13 is a re-organization of debt, the goal is not to discharge the debtor's debts, but to control the creditors actions to allow the debtor time to pay them off.  That being said, debts can be discharged.

Stay your small claims action, and line up at the Chapter 13 trough in Bankruptcy Court.

Violating the provisions of the automatic bankruptcy stay may result in you landing in jail (or at least an appearance before the bankruptcy court).  How much $$$ are we talking about?  It might be a lost cause.

I've seen many automatic stay violations litigated in bankruptcy court and the stay violations range from a warning up to sanctions.  The only time I've seen jail time... well threatened jail time was as a result of contempt of court.  

That is, if you don't pay the sanctions or you don't show up in court on a show cause order, I've seen a bk judge issue a pick up order to the US Marshals, though I haven't actually seen one carried out as they ended up paying up.

The last one I saw a pickup order issued for the president of a large bank because a $10k sanction wasn't paid and a show cause order was ignored.  Once the pickup order was issued, the $10k was wired within an hour and that resolved the matter.

That's why I used the word "may."