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socrateaser, Attorney
Category: Bankruptcy Law
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Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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As a follow up to the Rule 26 question earlier, in the underlying

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As a follow up to the Rule 26 question earlier, in the underlying civil suit to the AP action, I had listed a counterclaim against the Plaintiff for wages not paid in performance of duties. In the Required Disclosures section a-1-A-iii noted that there is a disclosure of computation of damages. Would I need to specific my counterclaim damages here in order to preserve them as a defense against what could be owed or claimed as damages to the Plaintiff or does the bankruptcy wipe those out as a claim against the plaintiff ?
Submitted: 5 years ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 5 years ago.
The amount claimed in the initial disclosures is not a limit on damages recoverable at trial, at least where the counterclaim-defendant is aware (e.g., through discovery) that a greater amount is sought. Plaintiffs are required to supplement their initial disclosures where “additional or corrective information” is not otherwise known to defendant.

A bankruptcy does not destroy the debtor's right to sue a creditor -- counterclaims are still available to the defendant -- however, in a Chapter 7 case, such claims belong to the bankruptcy trustee, and you would have to obtain consent from the trustee to plead them in place of the trustee. Otherwise, you would have no standing to sue and the counterclaim-defendant could move to dismiss your claims for lack of subject matter jurisdiction.

Hope this helps.

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