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JP
JP, Attorney
Category: Bankruptcy Law
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Experience:  Represented creditors and individuals in bankruptcy and consumer matters.
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I filed in small claims court on a personnal loan owed me,

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I filed in small claims court on a personnal loan owed me, the person declared bankruptcy which I was named on. My question is can my wife who was not named in his bankruptcy file in small claims court after this persons chapter 7 is over
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  JP replied 5 years ago.

Unfortunately, if the unsecured debt was included in the bankruptcy, the entire debt will be discharged upon successful completion of the chapter 7 case. Your wife, nor any other person, will be allowed to attempt to collect this debt from the debtor (your wife's son) during the bankruptcy proceeding and especially not after a discharge order has been entered in the case.

 

However, your wife's son can always voluntarily re-pay a debt that has been discharged in a bankruptcy case. (although I realize that it would be unlikely since he hs not paid you in over a year). But, you can't pursue any collection remedies/efforts against him at this time. I hope he decides to do the right thing and repay this personal family debt voluntarily after the chapter 7 case has been discharged and closed.

 

Best Regards.

 

 

Customer: replied 5 years ago.
The amount we were to get back was $2500. This was the amount the will appear on his bankruptcy. The amount we invested was about $1200. Can she or I sumit a claim for the $1200. as a new small claim? Since the $2500. will be discharged
Expert:  JP replied 5 years ago.

You can only submit a claim for the $1200 in small claims court IF the debt was incurred after the bankruptcy case was filed. (referred to as post-petition) If the debt was incurred pre-petition (before the case was filed) then it will be subject to discharge in your step-son's case.

 

Now you can attempt to proceed against him and attempt to make the argument that the $1200 was not listed in the bankrutpcy case, but you may cause more harm than good to yourself. Proceeding against your step-son for debt that is included in his bankruptcy case will be considered a violation of the automatic stay he received once the bankruptcy case was filed. Bankruptcy Court is a Federal Court and to violate bankruptcy law will be violating federal law and there are penalties for violating the automatice stay.

 

You should consult a bankruptcy attorney in your area, if you truly want to look into proceeding against your step-son for the $1200. Someone needs to analyze the specifics of your situation and determine whether attempting to collect the $1200 would be benenficial and/or legal.

 

On first impression, it would appear that it was your step-son's intent to include what he believed to be the total amount of debt owed to you and/or his mother as of the date of filing the petition. Furthermore, if you wanted to pursue the claim while the bankruptcy case is open, you will have to file it in bankruptcy court or request permission from the bankrutpcy court to proceed against your step-son in the small claims court. The test is when the debt was incurred. Only debt incurred before the case was filed will be discharged. Your step-son will be responsible for any debts incurred post-petition. Therefore, if the $1200 was incurred post-petition, then you can try to collect. However, if it was incurred pre-petition, it will be discharged in the chapter 7 case.

 

Customer: replied 5 years ago.
Can I not ask the judge not to aloud the debtor to discharge my case. Seeing how he lost my money he was trusted with due to the company that he was investing it in(Google) suspended the account do to him committing several policy violations. It was due to his negligence that lost our funds. He is just using the courts to get out of his responsiblility. If so under what grounds would it be under? Could it be breach of Trust? Also what is this that we can file a lawsuit with the bankruptcy court?
Expert:  JP replied 5 years ago.

Yes, you can pursue recovery of your debt by filing a lawsuit in the bankruptcy court and ask the Judge to not allow the discharge of your debt. Lawsuits filed in bankruptcy court are called "adversary proceedings". However, you should have an attorney in your area review the complete facts of the case and determine which cause of action(s) should be pursued against your step-son, if any. A nonexclusive list of adversary proceedings is set forth in Federal Rules of Bankruptcy Procedure No. 7001.

 

I hope you found this information helpful.

 

Best Regards.

JP, Attorney
Category: Bankruptcy Law
Satisfied Customers: 109
Experience: Represented creditors and individuals in bankruptcy and consumer matters.
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