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Roger
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26558
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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I had filed Chapter 13 bankruptcy in late May my 341 meeting

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I had filed Chapter 13 bankruptcy in late May my 341 meeting has not arrived yet. So today I see that Capital one put a claim in for $5000. They are unsecured general. Where did they come from? This is a bad debt from years ago. Shouldn't the statute of limitations have run out by now? Should I call capital one to resolve this or wait till the 341 meeting?
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Roger replied 2 years ago.

Hi - my name is XXXXX XXXXX I'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.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26558
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
Mr. Adams
This is a case of identity theft and it occurred in NY. What is the statute of limitations in NY?
Expert:  Roger replied 2 years ago.

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).

Customer: replied 2 years ago.
I still don't know why they filed. It has been at least 9 years. Should I be safe and not worry and don't even bother with this?
Expert:  Roger replied 2 years ago.

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.

Customer: replied 2 years ago.
But I have already filed the plan and the schedules. Do I need to amend it now or wait and take the amended paperwork to the 341 meeting?
Expert:  Roger replied 2 years ago.

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.

Customer: replied 2 years ago.
Let me ask to you this. So today I had a hearing with the court. I actually made a mistake and valued the car incorrectly and took an exemption that I was not supposed to. The creditor filed a motion. I fixed the mistake as they indicated in the motion for objection to exemption. The hearing was today at 1:45 PM. I emailed the attorney, faxed him the corrected paper work and even sent the paper work to the court. So what is going to happen now? Can I be in trouble for not showing up to court. Could they dismiss the case? Any help?
Expert:  Roger replied 2 years ago.
It's never a good idea to miss a court date, but it is not likely that your case would be dismissed for missing one hearing. Instead, the penalty would be that the creditor would get the relief it requested. However, if you agree with the request of the other party, then it should not be a huge issue.

However, it would have been better to appear and tell the judge that you don't dispute the relief requested.
Customer: replied 2 years ago.
so what do I do now? I sent the paperwork to the other attorney. Shouldn't he have cancelled it. I mean I was told the matter would become moot. Why would a hearing even be necessary. It was in the Florida Southern Bankruptcy court. Is their a way to check to see what went on today and the ruling if their was any?
Expert:  Roger replied 2 years ago.
It may be that all that happened was the other party announced to the court that an agreement had been reached and that an order would be submitted.

You can call the court clerk to check the docket or call the opposing attorney about what happened today in the case.
Customer: replied 2 years ago.
Hi Mr. Adams
Called the clerk but no information yet. However the hearing was not cancelled but they don't have information as to what took place. It is unlikely that the court would dismiss the entire case. I mean I did make the changes so what is their to even rule on?
Expert:  Roger replied 2 years ago.
Yes, it is highly unlikely that the court would cancel the case based on your failure to appear this one time. The more likely scenario would be for the judge to file an order to you to show cause for failing to appear IF the court takes any action. If that happens, you would have to appear and tell the judge that you thought the matter was resolved and that's why you didn't come.

If you failed to appear for the show cause hearing, the judge would likely dismiss the case at that point.
Customer: replied 2 years ago.
Is their any other way to find out what happend today? Is calling the clerk the only way or is their an online system?
Expert:  Roger replied 2 years ago.
There is a case management/electronic case filing system (CM/ECF), but you must have a user name and password XXXXX access the site. Attorneys have access, but I don't think individuals do - you would have to call the court clerk and ask if you can get access to the system.

It's not likely that anything is showing up on the system if the clerk said they didn't see anything - because they were probably looking at the online filing system when you talked to them.

The only other alternative would be to call the other party's attorney and ask what happened.
Customer: replied 2 years ago.
Hey Thanks for all the help so far. So today I saw that the mortgage company's lawyer filed a notice of appearance two weeks ago. The bank is bank of America and it said to direct future matters to this attorney. What is a notice of appearance? Does this mean he is coming to the 341 meeting?
Expert:  Roger replied 2 years ago.

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.

Customer: replied 2 years ago.
Also I am going with my mother to the 341 meeting. She is the one who is in Chp 13 but has a language barrier. I am assuming they are not going to let me talk. So is their anyway I can? As an agent, or maybe getting a power of attorney? Any route you can recommend,
Expert:  Roger replied 2 years ago.
You can't likely act as her agent because you're not an attorney. However, you can offer to be an interpreter for your mother if there is a language barrier. To be honest, I've never encountered that, but I would recommend that you contact the bankruptcy trustee's office (the trustee conducts the 341 meeting) and ask how they want to handle this. My inclination is that they will either provide an interpreter or allow you to do it.
Customer: replied 2 years ago.
Ok. I understand that. The other issue is that the bank has not filed their proof of claim. They have an attorney but no proof of claim. It would be better for me to redo my payment plan so I can figure the amount into it. What should I do? Wait?
Expert:  Roger replied 2 years ago.

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.

 

Also, please take time to positively rate my answer so I may receive credit for my time assisting you. The question will not close and we can continue as long as you like. However, it will give me assurance that I'll be paid for my time. Thanks.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26558
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
Hey
I filed chp 13 to save my home so I need their proof of claim. They are a priority debt. Should I still wait or what do you think I should do?
Expert:  Roger replied 2 years ago.
Sorry for the delay. If it's your mortgage, and you certainly want to reaffirm it, then you can go ahead and make a proposal to repay the debt in your plan. There's nothing wrong with doing it that way, and if its a debt you want to keep, then it's probably wise to do this.
Customer: replied 2 years ago.
i already proposed it in the chp 13 plan. I just have not heard anything from them.
Expert:  Roger replied 2 years ago.
Ok. In that case, you just need to wait and see if the creditor files an objection.
Customer: replied 2 years ago.
ok. i have another question. I have closed to $18,000 that I need to bring current on the mortgage. I have proposed a step up plan. $100 a month for 2 years and the remaining split into 36 months. We anticipate an income increase later on. Is this viable or will creditors object or trustee object. I mean they get all of it in 5 years are required by law.
Expert:  Roger replied 2 years ago.
I can't say for sure what the creditor will object to, but if you're offering to repay all of the debt within a reasonable time, the lender will likely be agreeable. The trustee usually doesn't object unless the debtor is trying to avoid paying a valid debt.
Customer: replied 2 years ago.
but what is reasonable? the law gives me 3 to 5 years. Don't I even have the right to choose how I pay? As long as I satisfy the debt in 5 years, shouldn't that be enough? I know I am the debtor but I should have some basic rights.
Expert:  Roger replied 2 years ago.

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.

Customer: replied 2 years ago.
i hate to keep bothering you. Ok I owe $18,000. I prosed $100 a month for 24 months and the rest of the 36 months. Comes out to $438 or so a month. So what do you think? Creditor may try to object. What is your personal opinion?
Expert:  Roger replied 2 years ago.
The creditor will probably want more money sooner than later, which may make it object to the first two years of payments at a lower amount. They would probably want a more even payment amount across the board.
Customer: replied 2 years ago.
And the objection needs to be filed before the 341 meeting or at the meeting itself?
Expert:  Roger replied 2 years ago.
Not necessarily. When you file your plan proposal, the court will issue a filing deadline for any objections to your plan.
Customer: replied 2 years ago.
let me ask you one more thing. My mortgage payment is $1100. I recently downgraded the home insurance so the new payment should be lower. As a pro se debtor, am I allowed to call the bank and get the new amount. And also find out what their claim is so I can propose the "right" plan. Should I call to get the new amount since I need it.
Expert:  Roger replied 2 years ago.

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.

Customer: replied 2 years ago.
ok. thanks Mr. Adams
Customer: replied 2 years ago.
Is gift income allowed in a chp 13? Cause if the bank does not go for this payment plan I proposed for my mother than I may have to help my mother out.
Expert:  Roger replied 2 years ago.
Cash gifts generally aren't an issue because they are voluntary gifts and isn't considered income.
Customer: replied 2 years ago.
But I thought they were income. Lets say the chp 13 plan dictates a monthly payment of $2200. And the person who is in chp 13 only has $2000 a month. Can they get a $200 gift from a family member to help make the deficit. I thought the courts treated this as income?
Expert:  Roger replied 2 years ago.

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.

Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26558
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
Roger and 3 other Bankruptcy Law Specialists are ready to help you

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