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I am a plaintiff in small claim case and the defendent, just…

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I am a plaintiff in...
I am a plaintiff in small claim case and the defendent, just before our hearing date, has filed Chapter 13 bankruptcy. His BK atty. has filed a Suggestion of Bk and requested a stay which I know is automatic. Also, tho, he has requested a dismissal with prejudice in the small claim case. Is the req. for dismissal normal? with prejudice? Should I oppose the req. for dismissal? I am afraid if granted it would affect my ability to claim in BK court or to continue the Small Claim if the BK is not approved. How do I oppose this? THere is a Small Claim hearing scheduled on Monday which of course wont happen due to the BK.
Submitted: 6 years ago.Category: Bankruptcy Law
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3/9/2012
Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
D. WINOGO ESQ.
D. WINOGO ESQ., Attorney
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What is the basis stated in the motion to dismiss?
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Customer reply replied 6 years ago
Just the Chapter 13 filing.
Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
You should absolutely oppose the motion to dismiss. It is fairly typical for the bankrupt party to request a dismissal but without prejudice. As such, if you have only just now received the defendant's motion, you should appear in court on Monday for your scheduled appearance, since if the bankruptcy petition was only recently filed, the defendant has to to file it with small claims court as well.

When you appear on Monday, you should ask the judge whether he/she will grant the stay on the case until the defendant is discharged from bankruptcy, or in the alternative, that you be permitted to voluntarily withdraw the claim without prejudice, so that you can refile when the defendant is discharged.
D. WINOGO ESQ.
D. WINOGO ESQ., Attorney
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Customer reply replied 6 years ago
Another question in this matter. I am not listed in the Bankruptcy filing on the creditor matrix. Since I did not receive a judgement before the BK filing should I be on the matrix anyway? I know I can file a claim even if I am not on the matrix. Also, since my claim is based on pre-petition occurances, will my claim be discharged in bankruptcy even if I do not file a claim and am not on the matrix, or will I be able to pursue the case when the bankruptcy debt is discharged against the creditors on the matrix? basically, should I file a claim in BK court, get myself added to the matrix, or wait and continue my small claim when BK is discharged (some 3-5 years from now). This is a chapter 13 filing.
Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
If you are not included on the list of creditors, then defendant cannot discharge the debt/judgment owed to you.
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Customer reply replied 6 years ago

Is there a "statute of limitations" that might kick in on my small claim if the BK is discharged in 5 years? The case is stayed at this point but not dismissed.

 

Any advantage to either jumping on the BK creditor list or to delaying and filing separately later? Any disadvantage to filing the claim in BK even though I do not yet have a juddgement?

 

Thanks,

Dave

Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
If the defendant is disputing the debt, then there is no sense in filing a claim in bankruptcy (unless you file an adversary proceeding where you would need to prove that the defendant filed bankruptcy solely to defraud you and steal your money).

Since you have filed your lawsuit on small claims, then you have satisfied the statute of limitation and it is frozen until the bankruptcy proceeding is concluded and your claim is unfrozen.
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Customer reply replied 6 years ago
One more question: is it likely in a Chapter 13 filing that the defendant will dispute the debt since the pool of funds available for distribution is fixed based on income rather than the total amount of the debts? I had understood that unless the other creditors dispute the claim in BK, the debtor is unlikely to dispute. Your thoughts?
Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
First things first. If you are not on the list of creditors, then there is no way the debtor will be able to dispute the debt, unless another creditor tries to add it.
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Customer reply replied 6 years ago
Did you mean unless another creditor tries to block it, rather than add it?
Bankruptcy Lawyer: D. WINOGO ESQ., Attorney replied 6 years ago
Yes.
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Customer reply replied 6 years ago

So, the debtor has now converted his Chapter 13 filing to Chapter 7. I am not listed on the creditor matrix but by unresolved Small Claim is listed in the Statement of Financial Affairs. I believe this will be a No Assets case. Since my Small Claim has been stayed and never adjudicated will it or will it not be discharged in the Chapter 7 bankruptcy? Will I be able to resume the claim in Small Claims after the discharge? The claim relates to damages incurred prepetition.

 

Thanks, Dave

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