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Amend or not to amend...

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    Amend or not to amend...


    Hello Everyone,
    This is my first post on this forum. I’m trying to seek out all my options before I act, and my research led me to this forum. It will be much appreciated if some of you will share your knowledge/input.
    I’ll give you the gist of my situation. I filed for Chapter 7, no asset, US Bankruptcy Court, in Sept of 2005 (before the law change) and it was fully discharged. I had a small business that closed down in late 2007. I had a corporate credit card that wasn’t included with the Chapter 7 that has taken me to court (civil). I didn’t include the credit card on the schedule because I was unaware that I personally guaranteed it, obviously, if I had known, I would have included it with my bankruptcy. I was under the impression I was protected by my corporation. From the date of my Chapter 7 filing, the card was still in use until my corporation closed. The creditor is now suing me for the full amount. Court date has been adjourned.
    I see that I have a couple of options that brings me to a few questions.

    Option 1 - Stay with the court date, and see if the creditor has proof of my signature.
    If they do not have my signature, will the case be dismissed? Are monthly statements suffice for them to win? (I dont recall signing anything, usually I open these credit cards over the phone.)

    Option 2 – File a motion to amend my chapter 7.
    (This is what I read in the Chapter 13 forums.) Obviously I don’t fully understand…
    Motions to reopen are often filed by debtors seeking to amend schedules (lists) to include an additional creditor. Generally, such motions are liberally granted. The courts have held that there will be no prejudice or harm to the creditor in a no asset case when proper notice to creditors has been given that there is no need to file a claim. In such a case, the omitted creditor is not harmed if the case is reopened and the creditor is added to the schedule because the creditor would not have received a distribution in any event. Motions to reopen for the purpose of adding creditors to the schedules are often filed by debtors in the mistaken belief that adding the creditor to the schedules is necessary for the debt to be discharged. The delayed scheduling of a creditor after the case has been closed has no effect on whether the debt is discharged. What matters is whether the creditor was hurt by the delay.
    Will an amendment protect me at all?
    I’m sure after an amendment they will file for an adversary hearing, but what will they fight for? The full amount of the debt or are they only allowed to try for the POST bankruptcy amount?

    Will this amendment refresh my chapter 7’s 10 years on the credit report?
    Will re-opening my Chapter 7 “open up a new can of worms” and make things worse somehow?
    eg: dismissal of any previous debts or I did something wrong by not including this debt. (Again I was under the impression this is a corporate debt.)

    Thanks ahead for your time, and I hope this post will be informative to others as well.
    Regards.
    Last edited by chee; 02-02-2010, 02:30 PM.

    #2
    im not sure but i think you only have one year after the discharge to re-open a case.is there any statue of limitations for this debt in the state in which you reside?i know some states the sol is pretty short.some like my state,ohio.are unfortunetly,too long.

    Comment


      #3
      I think if you're already being sued in state court, you might as well fight it in state court as being discharged in bankruptcy and let the creditor try and prove otherwise. Was the card issued to a corporation? I would assume that upon your discharge you would be freed from your individual guarantee on the account. On the other hand this may simply be a non dischargeable debt.
      What has your lawyer told you?
      filed chapter 13..confirmed...converted to chapter 7...DISCHARGED!

      Comment


        #4
        Originally posted by catleg View Post
        I think if you're already being sued in state court, you might as well fight it in state court as being discharged in bankruptcy and let the creditor try and prove otherwise. Was the card issued to a corporation?
        Yes, it was a corporate credit card, with me as a personal guarantee that I wasn't aware of. I dont remember signing anything as I opened this over the phone.

        If they do not have my signature, will the case be dismissed? Are monthly statements suffice for them to win?

        Originally posted by catleg View Post
        I would assume that upon your discharge you would be freed from your individual guarantee on the account.
        WOULD this debt be discharged even though it wasn't on my schedule on my original filing?

        If no, would an amendment discharge it?

        If yes, then what about the account activity AFTER my original discharge?

        WOULD an amendment or an adversary hearing go by my original bankruptcy rules (pre law change) or will they go by the new rules? In other words, will an amendment open up my old discharged debts to the new rules?

        Originally posted by catleg View Post
        On the other hand this may simply be a non dischargeable debt.
        Please elaborate.




        I haven't seen a lawyer yet, I will see the clerk at the bankruptcy court next week to see if she can help me at all. If she can't then I would try to get some advice from a lawyer, not really the route I want to go since I dont have a job. The creditor is Capital One btw.

        Comment

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