There’s only one lesson here: it all turns on the evidence.
It is widely believed that Casey Anthony was responsible for her daughter’s death, but she was acquitted in a court of law because the prosecution didn’t present evidence that proved culpability beyond a reasonable doubt. Supposition, inference, and logic won’t cut it; it required evidence.
Evidence? I’m a bankruptcy lawyer, you say. If I wanted to be a litigator, I wouldn’t have chosen bankruptcy law.
Hel-lo? If you want to strip a lien, defeat a motion for relief from stay, or get a hardship discharge for your client, you’re in the courtroom, or prepared to be there if your motion papers don’t scare off the opposition.
In bankruptcy practice, evidendiary issues arise in motion practice. The motion sets out what we want the court to do for us and why our client is entitled to the relief sought. But the facts that underlie that request have to get before the court. Evidence does not come in via osmosis.
How is the court going to know if you don’t provide admissible evidence? What’s the value of the property we’re stripping the lien from? Who says? Why should we credit their opinion?
I declare
Or someone declares. Your motion is supported by a declaration or two, depending on who could testify to the facts needed. I found my motion to strip a judgment lien yesterday needed three separate pleadings to supply the evidence: the debtor’s declaration as to value; my declaration as to the recording information on the lien in question; and a request for judicial notice of the claim filed by the lien senior to the one we were stripping.
Together, those three documents established the value of the property, the total of the liens recorded senior to the lien to be stripped; and the recording information on the lien sufficient to positively identify the lien I’m seeking to void.
Double check
When I have my motion drafted, I read it over before signing, flag each of the predicate facts necessary to bring myself within the statute and precedent that entitle me to what I’m seeking, and then make sure I can find each fact in the declarations or other evidentiary pleadings. If there’s a hole, I’ve got to fill it before I file it.
Get what you want by giving the judge what she wants: admissible evidence.
Terrific post and spot on. Forget Casey Anthony, we had O.J. teach this issue. Evidence, credible evidence, is key.