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  1. #1

    Default Complex Bankruptcy

    My question involves bankruptcy in the state of: Illinois

    Hello All, I am new to this forum. I may ask this question in the child support section as well.

    Here is a quick summary of the situation.
    I am in child support litigation. This situation is a little bazaar in that I countered sued the mother.
    I had one child support order vacated. In the hearing the mother realized that she could loose, so she stopped showing up to court.
    She now no longer shows up to court, but the State is still trying to collect child support arrearages.
    I realized that the state is culpable as well so I sued the state.

    After suing the State, they decided to play dirty and levy my bank accounts.
    Now I am considering moving to federal court under 42 U.S. Code 1983.
    Mostly because they are collecting under a void order.

    Here is the bankruptcy question.....
    Bankruptcy is the best way for me to deal with levyed accounts.

    When I file a chapter 13, can I some how force the mother to appear as a creditor?
    If I can, can I counterclaim against her?

    The State waives sovereign Immunity as it regards to the debt.
    Also can I challenge the child support order? The order is definitely void, I know this for a fact.
    However, I need an impartial forum to have it heard. I know that you cant attempt to not pay child support.
    This is not what I am doing. What I am trying to do, is force all parties to submit to some type of forum where they submit to jurisdiction.
    right now, im the only person who is being forced to submit to jurisdiction.
    Once all parties submit to jurisdiction, I can comfortably pursue counter claims.

    How crazy is this question?

  2. #2
    Join Date
    Sep 2010
    Posts
    478

    Default Re: Complex Bankruptcy

    Not so complex or crazy:

    I can tell you right now the Bankruptcy Court IS NOT going to determine whether or not a State Court Order is “void”. Bankruptcy Courts must follow the Rooker-Feldman doctrine. Google it.

    As to your specific comments:

    I had one child support order vacated
    This implies that there was more than one such Order. The State has the right to collect CS until there is either 1) a court order vacating the obligation to pay or 2) a Court Order staying the enforcement of a CS Order while the parties litigate.

    Now I am considering moving to federal court under 42 U.S. Code 1983.
    I am not sure why you think your civil liberties have been violated by the State. If there is no court order requiring payment of CS then you go to the State Court judge for injunctive relief and damages. Disliking your particular judge (if that is the case) does not give you the right to move a purely state law matter to a federal district court under the guise of asserting some violation of your civil rights.

    (Is) Bankruptcy. . .the best way for me to deal with levied accounts?
    Filing a bankruptcy will stop, at least temporarily, attempts to collect on a pre petition debt. It will not allow for the recovery/return of money garnished prior to filing. Nor will it force the end of court ordered garnishment for post petition support payments so long as there is a state court order directing such payments.

    When I file a chapter 13, can I some how force the mother to appear as a creditor? If I can, can I counterclaim against her?
    If you file a Chapter 13 and properly notify the State and the mother, one of them will file a Priority Proof of Claim asserting $XX was owed on the day the case was filed. If your Chapter 13 Plan does not properly provide for payment of this top level priority claim your case will eventually be dismissed.

    You, of course, could file an Objection to the Proof of Claim and presumably assert your counterclaim, however, the bankruptcy court may send the parties back to state court. Bankruptcy judges do not like dealing with family law matters and, in many instances, simply do not have jurisdiction to make support determinations.

    Lastly, you need to be careful. A bankruptcy judge will not set aside a contempt citation issued by a court of competent jurisdiction. So. . . if you pissed off your state court judge and are facing some sort of contempt order you should tread lightly.

    You need to sit down with a family law attorney who also handles bankruptcy matters and discuss your situation. You certainly do not want to screw it up.

    Des.

  3. #3
    Join Date
    Mar 2013
    Posts
    18,305

    Default Re: Complex Bankruptcy

    Quote Quoting prosepursuit
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    I may ask this question in the child support section as well.
    You did and it will be deleted as a duplicate. Please keep all your discussion to this thread and don't open any new ones. We all read all the forums anyway.

  4. #4
    Join Date
    Oct 2006
    Posts
    16,441

    Default Re: Complex Bankruptcy

    Quote Quoting prosepursuit
    View Post
    My question involves bankruptcy in the state of: Illinois

    Hello All, I am new to this forum. I may ask this question in the child support section as well.

    Here is a quick summary of the situation.
    I am in child support litigation. This situation is a little bazaar in that I countered sued the mother.
    I had one child support order vacated. In the hearing the mother realized that she could loose, so she stopped showing up to court.
    She now no longer shows up to court, but the State is still trying to collect child support arrearages.
    I realized that the state is culpable as well so I sued the state.

    After suing the State, they decided to play dirty and levy my bank accounts.
    Now I am considering moving to federal court under 42 U.S. Code 1983.
    Mostly because they are collecting under a void order.

    Here is the bankruptcy question.....
    Bankruptcy is the best way for me to deal with levyed accounts.

    When I file a chapter 13, can I some how force the mother to appear as a creditor?
    If I can, can I counterclaim against her?

    The State waives sovereign Immunity as it regards to the debt.
    Also can I challenge the child support order? The order is definitely void, I know this for a fact.
    However, I need an impartial forum to have it heard. I know that you cant attempt to not pay child support.
    This is not what I am doing. What I am trying to do, is force all parties to submit to some type of forum where they submit to jurisdiction.
    right now, im the only person who is being forced to submit to jurisdiction.
    Once all parties submit to jurisdiction, I can comfortably pursue counter claims.

    How crazy is this question?
    One thing that you should be aware of is that child support is fluid and modifiable. Therefore, even if you get a ruling at some point that you do not owe child support, that doesn't mean that there won't be a later ruling that you do owe child support.

  5. #5

    Default Re: Complex Bankruptcy

    Great answers.

    I was just reading about Rooker-Feldman doctrine this morning. Now it clicks.

    This implies that there was more than one such Order. The State has the right to collect CS until there is either 1) a court order vacating the obligation to pay or 2) a Court Order staying the enforcement of a CS Order while the parties litigate.
    The initial support order is void because it was based off of a consent judgment. I never saw the consent judgment, I never agreed to the terms and conditions. I never signed it. a consent judgment is a contract. Its bound by the same rules of a contract. If the contract is void, then the initial child support order is void because a judgment based on a void judgment, is itself void.

    There are other problems with the initial judgment. In illinois a court gets its jurisdiction from the constitution, which says that the circuit courts shall have jurisdictions over all justiciable matters. However, the legislators can create a justiciable matter by creating a statute. When this happens the court has statutory jurisdiction, and it must follow the strictures of the statute. Any deviation and the court looses jurisdiction.
    With this said, the court did not follow the statute when it made a judgment for the original support order.

    Ill stop here, because there are lots of arguments on why the order is void, but I don't want to write a 50 page essay.

    I am not sure why you think your civil liberties have been violated by the State. If there is no court order requiring payment of CS then you go to the State Court judge for injunctive relief and damages. Disliking your particular judge (if that is the case) does not give you the right to move a purely state law matter to a federal district court under the guise of asserting some violation of your civil rights.
    Well, I would only go to federal court because I believe my rights were violated. . The main problem is that the mother disappeared after she lost a hearing on vacating the judgment.
    She knows I have a counter claim and now she does not want to show up to court. I then realized that she never submitted to the courts jurisdiction. This is a problem. The State should never allow her to sue for arrearages unless she submits to the courts jurisdiction. What happen to sue and be sued? I also believe the State violated my rights. According to history, child support was created for the State and Women. One problem with this is that initially child support was not designed to consider the rights of both parents. In some states women are considered automatic custodians when there is no court order. Some states don't even have laws to protect unmarried men from kidnapping unless they first have a court order. Therefore women can go to the State and apply for services without the knowledge or consent of fathers. When the State allows this, they violate your civil rights. I believe the only way justice can be served is to have all parties submit to the jurisdiction of the court. Anything less would not be in the interest of justice.


    Filing a bankruptcy will stop, at least temporarily, attempts to collect on a pre petition debt. It will not allow for the recovery/return of money garnished prior to filing. Nor will it force the end of court ordered garnishment for post petition support payments so long as there is a state court order directing such payments.
    From the limited reading I've done, filing bankruptcy forces CS to stop collection attempts against you. All child support proceedings will be temporarily stayed. The levy on my bank account will be removed. CS will then have to file a proof of claim in bankruptcy court. The problem is that CS is violating a court order, but I've pissed the judge off so hes not going to issue an injunction.


    If you file a Chapter 13 and properly notify the State and the mother, one of them will file a Priority Proof of Claim asserting $XX was owed on the day the case was filed.
    I plan to file an objection to claim. I understand that bankruptcy court cant discharge this, however I am hoping to somehow get her to submit to jurisdiction in the process.

  6. #6
    Join Date
    Oct 2006
    Posts
    16,441

    Default Re: Complex Bankruptcy

    Quote Quoting prosepursuit
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    Great answers.

    I was just reading about Rooker-Feldman doctrine this morning. Now it clicks.


    The initial support order is void because it was based off of a consent judgment. I never saw the consent judgment, I never agreed to the terms and conditions. I never signed it. a consent judgment is a contract. Its bound by the same rules of a contract. If the contract is void, then the initial child support order is void because a judgment based on a void judgment, is itself void.

    There are other problems with the initial judgment. In illinois a court gets its jurisdiction from the constitution, which says that the circuit courts shall have jurisdictions over all justiciable matters. However, the legislators can create a justiciable matter by creating a statute. When this happens the court has statutory jurisdiction, and it must follow the strictures of the statute. Any deviation and the court looses jurisdiction.
    With this said, the court did not follow the statute when it made a judgment for the original support order.

    Ill stop here, because there are lots of arguments on why the order is void, but I don't want to write a 50 page essay.


    Well, I would only go to federal court because I believe my rights were violated. . The main problem is that the mother disappeared after she lost a hearing on vacating the judgment.
    She knows I have a counter claim and now she does not want to show up to court. I then realized that she never submitted to the courts jurisdiction. This is a problem. The State should never allow her to sue for arrearages unless she submits to the courts jurisdiction. What happen to sue and be sued? I also believe the State violated my rights. According to history, child support was created for the State and Women. One problem with this is that initially child support was not designed to consider the rights of both parents. In some states women are considered automatic custodians when there is no court order. Some states don't even have laws to protect unmarried men from kidnapping unless they first have a court order. Therefore women can go to the State and apply for services without the knowledge or consent of fathers. When the State allows this, they violate your civil rights. I believe the only way justice can be served is to have all parties submit to the jurisdiction of the court. Anything less would not be in the interest of justice.



    From the limited reading I've done, filing bankruptcy forces CS to stop collection attempts against you. All child support proceedings will be temporarily stayed. The levy on my bank account will be removed. CS will then have to file a proof of claim in bankruptcy court. The problem is that CS is violating a court order, but I've pissed the judge off so hes not going to issue an injunction.



    I plan to file an objection to claim. I understand that bankruptcy court cant discharge this, however I am hoping to somehow get her to submit to jurisdiction in the process.
    You are being (I believe deliberately) vague on the actual facts of your case.

    Bottom line, unless you have a true 50/50 timeshare and equal incomes and child expenses one of you is going to be paying child support to the other. There is absolutely no way around that.

    At some point, the expense of legal fees, time off work for court hearings and other costs of litigation are going to far outweigh what should have been paid in child support...and the hostility involved will be quite damaging to your child.

    Think about that.

  7. #7

    Default Re: Complex Bankruptcy

    You are being (I believe deliberately) vague on the actual facts of your case.
    not true. just trying to summarize. My thinking is that you don't want to read a book.

    Bottom line, unless you have a true 50/50 timeshare and equal incomes and child expenses one of you is going to be paying child support to the other. There is absolutely no way around that.
    My child is an adult. This is about arrearages.

    At some point, the expense of legal fees, time off work for court hearings and other costs of litigation are going to far outweigh what should have been paid in child support..
    something to think about. Though at this point the only thing I can do is give up and just simply let them take arrearages?

    .and the hostility involved will be quite damaging to your child.
    Too late.

    How damaging is a bankruptcy?
    I've never filed one before. I don't believe I know any one who has.

    I am trying to weigh the decision of bankruptcy against the decision of just going though a hardship for a while.

  8. #8
    Join Date
    Sep 2010
    Posts
    478

    Default Re: Complex Bankruptcy

    The court did not follow the statute when it made a judgment for the original support order.
    This is why there are appellate courts. Did you appeal the judgment? If not, it is “final” and enforceable.

    From the limited reading I've done, filing bankruptcy. . . All child support proceedings will be temporarily stayed. The levy on my bank account will be removed. . . The problem is that. . . I've pissed the judge off so he’s not going to issue an injunction. . . My child is an adult. This is about arrearages.
    Then, looking at a Chapter 13 makes sense as it relates to addressing a pre petition claim. Just remember at least two things:

    1. A bk court is a court of very limited jurisdiction. Matters may very well be sent back to state court for a final determination as to the amount of mother’s claim. The final amount will have to be paid through the Plan if you remain in Chapter 13.

    2. Once the actual claim is established, unless you are in a 100% repayment Plan, the Chapter 13 will not provide payment of the interest accrual on the DSO arrears. Interest will continue to accrue under state law and will be fully due and payable once the Chapter 13 is done. See 11 USC §1322(a)(10).

    Again, please find a well qualified attorney.

    Des.

  9. #9

    Default Re: Complex Bankruptcy

    This is why there are appellate courts. Did you appeal the judgment? If not, it is “final” and enforceable.
    Not true, a void judgment can be challenged at any time. In any court.

    Also, what kind of forum is this. I may be in the wrong forum.
    Is this a forum for lawyers? Is this a forum for people who want to ask legal questions so they can be more informed when they deal with their lawyer?
    Is this a forum for pro se litigants?

    I only ask because this may not be the right place for me. I want to avoid upsetting the community with my post.

    Thx.

  10. #10
    Join Date
    Jan 2011
    Posts
    398

    Default Re: Complex Bankruptcy

    This is a forum for volunteers.

    You will want to retain a BK attorney if you are going to file, especially if you have a habit of pissing off judges.

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