AMENDED MOTION TO SET ASIDE THE JUDGEMENT

   IN THE XXX BANKRUPTCY COURT

for the SOUTHERN DISTRICT OF XXX

IN RE: XXX

CHAPTER 7 Debtor CASE NO. XXX

AMENDED MOTION TO SET ASIDE THE JUDGEMENT AND INTERROGATORIES OF WELLS FARGO; AND MOTION TO COMPEL THE TRUSTEE TO PAY WELLS FARGO FROM THE PROCEEDS OF SALE OF REAL PROPERTY.

COMES NOW Defendant XXX and submits this Amended Motion to Set aside the Judgment and Interrogatories of XXX; and Motion to Compel the Trustee to Pay XXX from the Proceeds of the Sale of Real Property. In support of the Motion(s), Defendant alleges as follows:

FACTUAL BACKGROUND

XXX after Defendant’s discharge has gone after Defendant’s wife XXX for the debt discharged in this bankruptcy with added interest of $115,000 and lawyer fees after getting $360,000 from the trustee on a dischargeable judgement lien.

XXX debt was a line of credit to Inland Family Practice.

XXX secured an uncontested judgment through fraud on the court in the circuit court of XXX County.

XXX rolled that judgment to a building owned by XXX in Destin and also properties in XXX County.

The judge in that case specifically told the lawyer XXX Hearn that represented Inland and Defendant to review the judgment with Defendant prior to signing but the lawyer did not do so. Not only did XXX not do what the Judge instructed him to review with Defendant but waited until XXX rolled the judgment in on all the properties to let Defendant know.

Defendant did not know until he got service about the liens that a hearing was even done on the matter.

XXX did not receive service on that lawsuit for it was served on Defendant at the clinic at 908 W. Pine Street, XXX MS 39402. Since the line of credit was to Inland there was no need for Defendant to discuss that with anyone else. 

XXX deliberately served Defendant’s wife the motion for the interrogatories to a non-existent lawyer Mr. Hearn and at an address, which Defendant used 13 years ago. This was done to fraudulently get the court to sign off on the interrogatories.

Further, the hearing was done on zoom with no notification to Defendant and his wife.

Wells Fargo is currently being paid under Inland plan.

The Destin property was sold for $1.5MILLION by the bankruptcy trustee and 912 W. Pine XXX MS 39402 a mortgage sold for $204,000 making a total of $1.704Million.

The first bank loan which was a non-purchase loan was paid with the proceeds of these loans made to Inland.

XXX was paid $220,000 from the proceeds PLUS $140,000 FROM 912 W. Pine building.  Exhibit 1a and b (loan settlement on the two properties sold to the benefit of Judgment lien by XXX)

Wells Fargo did not want to get more money from the Trustee because they have been charging interest on the judement to the tune of $115,000 plus additional per diem $35/day since XXX.

Majority of these interests was added while this case was in bankruptcy.

There is still $261,888 left over from the sale of these two properties.

During the negotiations for the sale, the Trustee stated that she was doing us (Defendant and his wife) a favor to sell the property and pay Wells Fargo in full. See Exhibit 2.  (e-mail from The Trustee XXX that she wants to pay Wells Fargo in full).

After the sale Defendant and his wife do not know where the remaining of the money has gone. Defendant has asked the US Trustee’s office to see how it is possible that a secured creditor could get less on a secured security. This money was enough to satisfy Wells Fargo’s judgment if it was legitimately applied as promised by the trustee. Exhibit 3. (Letter to US Trustees office)

Inland is in Chapter 11 with a confirmed plan and Wells Fargo is getting monthly payments on that plan.   Exhibit 4

XXX did not object to any sale of Defendant’s marital properties in this bankruptcy because the trustee said her aim is to pay off XXX since Mrs. Vivian was a guarantor to their loans.

Majority of the debt in this bankruptcy were loan made to Inland Family Practice that Defendant personally guaranteed. None of the building the Trustee has sold was purchased by loan money mortgage.

Wells Fargo’s continued harassment and intimidation tactics on debt collection as to this bankruptcy case, and is nothing but deplorable.

ARGUMENTS

A bankruptcy court’s has authority to fully adjudge state-law claims in dischargeability actions. Stern v. Marshall, 564 U.S. 462, 479-80 (2011).

The trustee is a fiduciary of the estate. Moulded Products, Inc. v. Barry, 474 F.2d 220, 224 (8th Cir. 1973); see also Commodity Futures Trading Comm. v. Weintraub, 471 U.S. 343 (1985). According to the Supreme Court, “a trusteeship is serious business and is not to be undertaken lightly. . . . ” Mosser v. Darrow, 341 U.S. 267, 274 (1951). In Mosser, the Court recognized that a trustee may derive some qualified immunity from the “difficult business judgments” he is called upon to make. However, that immunity will not protect the trustee from personal liability for negligent or wilful acts. Id. at 273-74. In interpreting Mosser, the circuit courts are split regarding the imposition of personal liability for acts of negligence. See Carter v. Schott (In re Carter Paper Co.), 220 B.R. 276, 293-94 (Bankr.M.D.La. 1998) (discussing in detail the split in circuits); see also Norton Bankruptcy Law and Practice 2d § 79:21 p. 79-45 n. 44.

The basis for holding bankruptcy trustees liable is the equitable power of courts to enforce fiduciary duties. The foregoing was held in In re Carter Paper Co., Inc., 220 B.R. 276 (Bankr. M.D. La. 1998), where the court stated: “The vast majority of Courts to rule on the issue has held that breach of fiduciary actions are equitable actions,” Id. at 303 (citing many cases).

In the instant action, Defendant contends that Wells Fargo misused the Courts to fraudulently obtain judgment against the Defendant. Besides, Wells Fargo failed to properly serve the parties in the case, which conduct voids any judgment from the Court, pursuant to State law. See S & M Trucking LLC v. Rogers Oil Co. of Columbia Inc., 195 So. 3d 217, 221 (¶17) (Miss. Ct. App. 2016). Fraud upon the Court is also sufficient ground to vacate a Judgment. Notably, “[i]f a judgment is procured by fraud, it can be set aside under Rule 60(b)(3).” In re Whitney-Forbes, Inc., 770 F.2d 692, 698 (7th Cir. 1985). It follows; therefore, this Court should not recognize and/or rule against the Judgment, which was obtained by fraud, and in violation of the requirement to conduct proper service.

Defendant also avers that the Trustee has a fiduciary duty to conduct the proceeds of the sale to settle the debt as stated by Defendant. Besides, this Court would rightly hold the Trsutee personally liable for a breach of the said duty by failing to carry out his duties accordingly. Defendant therefore moves this Court to Compel Trustee to Pay Wells Fargo from the Proceeds of the Sale of Real Property.

CONCLUSION

Defendant has made numerous efforts to get to this Honorable Court throughout this bankruptcy but it is almost impossible through counsel. This leaves Defendant with no other choice than to file this motion pro se.

WHEREFORE, Defendant prays this Honorable Court set up a hearing to determine where the rest of the money from the sale of the property is going; and also to set aside the judgement on XXX. Defendant also prays for any other relief this Court deems just.  

Dated: _________________

Respectfully submitted,

______________________XXX (PRO SE) 107 XX

CERTFICIATE OF SERVICE

I certify that a copy of the foregoing pleading has been served this day on the below named individual(s) via first class U.S. Mail at the address listed below or by Notice of Electronic Filing via the email address on file with the Court’s CM/ECF system:

XXX, PC

XXX                                     

XXX

CCC                

Respectfully submitted,

______________________XXX