Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
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Hey I was wondering, I had my chapter 7 discharged on 5/25/2010 by the Western District Court of NC with all debts discharged except my student loans. Today I was contacted by the lender for my vehicle which was surrendered under the bankruptcy (It was a piece of junk anyways) and they said in a letter that "We have repossessed your vehicle because of default and you have 10 days to pay the full balance or we will sell your vehicle off at auction at which point you will be liable for the balance"...The letter was dated on 06/02/2010. I was wondering, I have spoken with my lawyer about it and he said to document everything I've said to them and he thinks there is enough to file suit against them. When I called them they said "You'll still be liable for the debt" even after mentioning the discharge like 6 times. Do you think there is a possible case here against them?
Response: Yes, the lender is in clear violation of your discharge injunction. The attempts to collect on the debt by the lender are illegal. If they persist on calling you, you would need to file a Motion with the Bankruptcy Court to reopen your case in order to file action against the lender for violation of the Bankruptcy Code Discharge Injunction. The debt that the lender is trying to collect was properly discharged in your bankruptcy filing since you did not reaffirm the debts and you surrendered the property. Their persistent efforts to collect the debt after they have been told of the discharge is willful violation of your bankruptcy Discharge Order. See 11 U.S. C. Section 524. You would reopen your case pursuant to 11 U.S.C. Section 350(b).
Now we did have issues with surrendering the vehicle. After numerous attempts by my lawyer to get them to take the vehicle back, the only reason they took it back is because I dropped the insurance on it and turned the plate into the state's DMV. That wouldn't affect anything would it?
Response 1: No, that would not affect anything. The bankruptcy Code does not require you to do something more after declaring your intention to surrender the vehicle. It is up to the lender to decide how and when to take possession of the collateral.
I mean the debt was discharged regardless.
Response 2: Yes.
Also, what does it do to a discharge in the event we reopen the case and file the motion?
Response 3: Nothing. You are only reopening the case to file the Motion. Your case may not be closed yet. So, there may not be a need to reopen the case. Sometimes, cases are closed months after the discharge order. Your attorney should be able to tell you whether your case is still open.
I would still be granted the discharge after the issue has been resolved in the courts right?
Response 4: Your issue does not have anything to do with your discharge. You have already been granted discharge on the debt since the lender did not file any objection to the dischargeability of the debt.
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