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Roger, Attorney
Category: Bankruptcy Law
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We received bankruptcy discharge January 2006. Have been notified of adversary hearing re

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We received bankruptcy discharge January 2006. Have been notified of adversary hearing regarding this with trial date of January 2013. Nothing was done fraudulenty intentionally. Are we protected by the statute of limitations against criminal charges? I have read that 5 years is the statue of limitations.
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Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney.

 

The statute of limitations on civil claims is generally tolled or stayed during the pendency of the bankruptcy. Thus, you can't count the time you were in bankruptcy against any statute of limitations.

 

Also, an adversary proceeding is not a criminal matter, and just because this action is being brought doesn't mean that criminal charges would be filed.

 

As for the criminal charges, the statute of limitations would not be tolled by the bankruptcy as a criminal act is not something that the bankruptcy court has jurisdiction over.

Customer: replied 4 years ago.


Can you be more specific? I don't understand your answers.


 


I do understand that an adversary hearing doesn't necessarily mean criminal charges will be brought, but it will be decided as a result of that meeting.

Sorry if the response was confusing.

 

The adversary proceeding is NOT a criminal proceeding. It is a civil proceeding against you for some claim. The adversary proceeding will seek money, recovery of property, etc.

 

Criminal charges are a totally separate issue and would not be handled by the bankruptcy court. If the statute of limitations has run on the criminal charge, then you should not have to worry about that.

 

Please let me know if this makes better sense, or if you have other questions. Thanks.

Customer: replied 4 years ago.

Let me ask this way - has the statue of limitations run out for a bankruptcy discharged in January 2006, for either civil or criminal proceedings?

It is very likely that all criminal and civil statutes of limitation have run. Since you're more than 6 years from the discharge date, you should be in good shape unless you are being sued for something that has a statute of limitation over 6 years.

 

Here's a link to the statutes of limitation for criminal charges: http://statelaws.findlaw.com/missouri-law/missouri-criminal-statute-of-limitations-laws.html. As you can see, the longest statute of limitation is 3 years (except for a sexual abuse or murder charge). Thus, you should be past that time period.

 

Here's a link to the statute of limitations for civil claims: http://statelaws.findlaw.com/missouri-law/missouri-civil-statute-of-limitations-laws.html. As you will see, fraud, breach of contract and collection of a debt on an open account all have a 10 year statute of limitation. If you're being sued for one of those things, then the claimant still has time to sue.

Customer: replied 4 years ago.


First of all, they are seeking to revoke our discharge based on false allegations made by other persons. Then, there are 2 questions I answered "no" to on the original worksheet. The first no answer was when asked if we had any open lawsuits. In our first discussion with the attorney's legal assistant, we told him the reason for filing the bankruptcy was that my husband had been unable to work for the past 4 months due to an accident that was not his fault. The truck driver admitted guilt in court. We told him that we had hired an attorney but nothing had been filed. We were left with the understanding that we did not have to report this because it had not been filed. In fact, it did not get filed until 2009. (We dropped the lawsuit in 2010, so no money forthcoming.) The second no answer was to the question "have you ever filed bankruptcy before." My husband was filling out the papers and responded "no" because the question was "you." The fact is, I had filed bankruptcy with a previous husband and it was discharged in 1997, just over the 8 years that another discharge can be requested. I wasn't trying to hide the fact as it is public information, but just didn't pay enough attention when I signed the bankruptcy papers. So, do these constitute "fraud?" And do they put us in the 10 year limitations?


 


They are also asking that we pay all court costs and attorney fees, which doesn't seem fair to me. This bankruptcy was brought to the trustee's attention after all theses years by the attorney for the other side, trying to make us look fraudulent in the lawsuit we had filed against his client.


 


Is that standard practice or is that unethical?

There is no statute of limitations when it comes to re-opening a bankruptcy.

They can certainly allege fraud given the incorrect information. However, proving fraud is very difficult and even if there were mistakes - it doesn't mean that you committed fraud. Also, if the mistakes didn't make any difference to your bankruptcy, there's really no harm. Thus, the judge could find that the errors don't rise to a level that would necessitate dismissing your case.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 31010
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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