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Going After Dissolved Corporations
One of many judgment-related articles: I am a judgment broker, not a lawyer, and this article is my opinion based on my experience in California, please consult with a lawyer if you need legal advice.
Remember that only a bankruptcy judge can decide if they agree with a creditor(s) motion to add people or officers as alter egos, and only if that court has the proper jurisdiction. The creditor's arguments would usually include fraud, and include their alter-ego proof and assertions.
You or your lawyer should read the governing statutes concerning going after officers in a dissolved corporation in your state. For those in California, Corporation Code Section 2011(2)(A)(B) states: (2) Except as set forth in subdivision (c), all causes of action against a shareholder of a dissolved corporation arising under this section are extinguished, unless the claimant commences a proceeding to enforce the cause of action against that shareholder of a dissolved corporation prior to the earlier of the following:
(A) The expiration of the statute of limitations applicable to the cause of action.
(B) Four years after the effective date of the dissolution of the corporation.
So, consider the effective date of the dissolution of the corporation. Also, consider the statute of limitations, and if they apply, and any possible fraudulent transfers.
With a Chapter 13 BK; debts not listed on the BK 13 petition, are not usually included in the debtor's discharge.
With a Chapter 7 BK, things may work differently. Violation of a BK stay is not the same as a violation of a discharge injunction.
In Texas, alter-ego additions are prohibited by the debtors BK stay. Any creditor's actions against non-bankrupt defendants, based upon remedy of alter ego under Texas law, belonged to debtor-in-possession, and is "property of the estate" to which the automatic stay applied. In re: S.I. Acquisition, Inc. (1987, CA5 Tex) 817 F2d 1142, 16 BCD 505, 17 CBC2d 207, CCH Bankr L Rptr P 71841 (criticized by Robert W. Selgrad, IRA v U.S. Lending Corp. (1996, SD Fla) 1996 US Dist LEXIS 22927), and (criticized in Elegant Custom Homes, Inc. v Dusharm (In re Elegant Custom Homes, Inc.) (2007, DC Ariz.) 57 CBC2d 1789). Successor entities and other third-parties, including veil-piercing parties, all are not prohibited by the BK stay.
Successor alter-ego possibilities may mean that BK stays are not prohibited. The rights to sue successor of corporate debts and/or its principal officers, once abandonment by the Chapter 7 trustee was occurred, that means the creditor is free of any BK stays under 11 USCC section 362(a)(3).
In Texas, this usually means that automatic stay provision do not deprive district courts from having subject matter jurisdiction under the creditor's claims the alleging fraudulent conveyance and conspiracy to defraud by means of transferring corporate debtor's assets to corporate successors and others while insolvent. See Unisys Corp. v Dataware Products, Inc. (1988, CA1 Mass) 848 F2d 311.
In that case, the debtor got more than usual on their chapter 13 BK discharge, however they might of had a problem on with a Chapter 7 BK. Such cases, and related cases, can help you research more.
On the top of the regular statute of limitations issues, a BK motion based on a 187 does not have the same statute of limitations a common chapter 7 BK.
There is a case called "Alexander v Abbey of the Chimes" that dealt with statute of limitations issues on 187s. It is 7-8 years old, however other than that case, there seems to be no other cases that set such statute limitations.
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