Hi - my name is XXXXX XXXXX X'm a Bankruptcy litigation attorney here to assist you.
There is a 4 year statute of limitation for credit card debts in Florida. The 4 years begin from the last charge or last payment, whichever occurred last.
If the debt is barred by the statute of limitations, you can claim that in your proposed chapter 13 plan of reorganization and state that the debt is not collectible, and therefore, you will not repay any part of the debt under your plan. The creditor will be given an opportunity to state it's objection and the judge will then decide the issue.
Thus, there's no need to do anything before the meeting of creditors. If Capital One has an attorney there (which is unlikely), and brings up the debt, you certainly can state your position that the debt is barred by the applicable statute of limitations and isn't collectible.
Sorry - you've got Florida listed in your question.
The statute of limitations in New York for fraud (which would include identity theft) is 6 years (N.Y. Civ. Prac. L. & R. §213).
If the debt is that old, it should be un-collectible (statute of limitations on collecting a credit card debt in NY is 6 years) and you should not have to worry about it.
Because this creditor filed a claim, you will need to address it in your chapter 13 plan proposal, but your only address should be to claim that the debt is barred by the applicable statute of limitations and that it is not collectible.
You've file the petition and schedules by now - but the plan is the actual proposal of how you're offering to repay all of the creditors. Usually, this comes much later in the process.
However, if you have already filed your proposed plan, it hasn't yet been approved by the court. Thus, the issue of whether or not you would owe this lender/creditor will be settled before the plan is confirmed by the court.
You should not have to do anything until at least the 341 meeting. Usually, resolving the validity of the debt will occur when the creditor files an objection to your proposed plan. At that point, the court will conduct a hearing on whether or not the lien is valid, and at that point, you would be able to raise your statute of limitations claim against the debt.
No, it doesn't necessarily mean that the lawyer is coming to the 341.
A notice of appearance is a procedural form that simply requests the court clerk to copy him (electronically through the CM/ECF system) on anything that is filed in your case, anything order entered, any claim filed, etc.
It's nothing more than asking the court to copy him on anything that happens with your file. A notice of appearance is something that is filed by any creditor in any case.
Yes, you should wait and see if they file a proof of claim. If the claim is not submitted on time, the creditor's claim would be barred. Thus, there's no need to offer to pay a creditor until a claim is properly filed.
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It all boils down to adequate protection for the lender. Basically, this means that the creditor must be put in substantially the same position as it would be if it were allowed to foreclose/liquidate your collateral (home) right now. Here's a link to the adequate protection statute: http://law.onecle.com/uscode/11/361.html
As long as you can prove that the lender will recover the same money as it would right now, and that the property value is not going to depreciate over time with use to the point of a negative impact on the creditor, you should be fine.
You can always provide any proposal you like, and the lender will have the right to object to it. If you can't reach an accord, the judge will decide the issue.
Yes, you can call the bank, but they may or may not talk to you because of the bankruptcy. If they won't ask for the contact information for its attorney and contact him/her for the information.
A cash gift is not income.
However, you can't offer to help pay her monthly plan payment by supplementing her income. She has to be able to make the plan based on her own income.
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