Small Claims Suit after 341

[sunshapestan]

Hello,
I need to file a small claims suit against a business that owes me money. I filed for bk in Sept and had my 341 meeting last week. Can I file the small claims suit now and collect before my bk discharge or should I wait until I recieve the discharge then file the small claims case?

[despritfreya]

Did you list this "asset" on Schedule B? If not, you need to amend Schedule B and, if there is one available, claim some exemption on Schedule C. If there is no exemption you cannot try to collect until such time as the Trustee (who is the true owner of the claim) abandons this asset.

If you do not list the asset and get a proper abandonment my recommendation is that you do not try to collect. All it will take is one phone call from the other side to your Trustee. . .

Des.

[AngelinaCatHub]

It is my understanding that not only does the automatic stay stop process of suits, but also stops suits in both directions. The OP cannot address any suit during this stay. Correct me if I am wrong, Des, but give me law please? Thanks. 'Hub

[AngelinaCat]

Yes, one of the questions at your 341 should have been: "does anyone owe you any money?" At that point, you should have said: "yes, XYZ company owes me $$$." At that point, the trustee would then take the information and go after the company for money to pay your creditors.

If you were asked that question, and you said answered in the negative knowing that this company owed you money, then you did wrong. Now you should leave the entire matter alone until after you are discharged AND closed.

If you were nervous and 'forgot', then do as Des suggests and amend your schedules, and follow his/her advice.

[despritfreya]

QUOTE=AngelinaCatHub;461822]It is my understanding that not only does the automatic stay stop process of suits, but also stops suits in both directions. The OP cannot address any suit during this stay. Correct me if I am wrong, Des, but give me law please? Thanks. 'Hub[/QUOTE]

The automatic stay works in one direction. In pending litigation which was initiated by a debtor the debtor may continue a suit however, only if the debtor files an 11 or 13 since in those cases, the debtor is a "debtor in possession". In a 7, the asset belongs to the Trustee. If the Trustee wishes to continue the suit he must "substitute in" as the "true party in interest". Interestingly, any counter-claim would be stayed but, of course, the stay could be lifted since it would be a violation of due process to allow the debtor to continue the suit but not the defendant as it relates to any counter-suit.

Des.

[sunshapestan]

I dont believe I was asked if anyone owed me money...maybe I was and forgot. I know that question was on my paperwork and I did not list it because I'm not really sure if I could consider this business I wish to sue as oweing me money until I received a judgement. I just feel they owe me a refund for a service I paid for and did not receive, they however feel otherwise which is why I planned on sueing. It is not much money...less than $700 and the suit would not be about the money for me...just the principal. At any rate, I do not have to sue anytime soon, so I can wait...just didnt know if it would affect my bk. Thanks for your help.

[DebtEnder]

As others have said, since you think they owe you this money then it is a possible asset. As such the TT should be made aware of it. If nothing else if it is just the principle of the matter then let the TT do it for you. They have some evil powers to play with.