New Judgement after Chapter 7 filed

[exHCh7]

Hi,

My exH filed for Chapter 7 on Sept 20, 2010. His 341 meeting was October 13, 2010 and he is now awaiting discharge.

He was sued in small claims court on August 18 and had a hearing date of October 13 which was continued to November 3 because of his 341 meeting. The hearing for the small claims matter was held on November 3 and a judgment was issued against him on November 10 for about $2600.

My question is, since he already filed for BK and had his 341 meeting prior to this new lawsuit, will the latest judgment be included in his BK or will it survive?

The interest part about this whole thing is that the reason he was sued and a judgment was ordered against him was because he signed as a guarantor on his stepson's lease. The stepson subsequently broke the lease leaving property damage and unpaid rent in the judgment amount. After unsuccessfully trying to collect from the stepson for many months he landlord came after the guarantor's (my exH) and won the lawsuit.

Notwithstanding that exH is a big schmuck, if he didn't have bad luck he wouldn't have any luck at all!

Thanks for any insight into what happens to this latest judgment ~

[tobee43]

as long as he listed the debt on the petition he will be fine...

what happens is...once the bk is discharged, he goes back and and files a motion to vacate the judgment. it may cost extra legal fees, but it does need to be removed or it could pop up at a later date...so you really want to encourage him to get it done after his discharge.

[exHCh7]

He didn't list the debt on his petition because he filed the petition on Sept 20 and the judgment against him was order on November 10. I looked at the matrix of creditors and didn't see the landlord in the list either.

Does he somehow have to ammend the BK filing since this judgment came after he filed?

[DebtEnder]

So the court knew of his active BK and the attorney continued with the lawsuit?

All debt is discharged, baring a few exemptions, with chapter 7. New action does not void the discharge injunction. The case should have never continued with active stay in place. Yes all potential debts should be listed but if the court knew of his active BK then his attorney should have done SOMETHING to make sure the case was set aside, assuming he does get discharged. TBH this sounds like a violation of the stay. The stay exist regardless of prior knowledge, it is AUTOMATIC. Once aware of the stay, as the creditor knew based on the reschedule, then all further collection action should have ceased.

I find it odd since he filed after he was sued it does not make sense he would not have already had this on his creditor matrix.

[tobee43]

He didn't list the debt on his petition because he filed the petition on Sept 20 and the judgment against him was order on November 10. I looked at the matrix of creditors and didn't see the landlord in the list either.

Does he somehow have to ammend the BK filing since this judgment came after he filed?

if he has an atty...he needs to immediately amend his petition to include this creditor, IF he still has time...or they can execute the judgment. you need to call asap...really.

if he did not list it...like i said he needs to see if there is time to amend the petition to include the debt. the creditor, if not listed would have had no knowledge of the pending bk and continued to take action and it would be perfectly legal, because that creditor had no proper notice.

the creditor MUST be given written notice by the bk court....but can only do so, if the debt was listed on the petition.

[tobee43]

So the court knew of his active BK and the attorney continued with the lawsuit?

All debt is discharged, baring a few exemptions, with chapter 7. New action does not void the discharge injunction. The case should have never continued with active stay in place. Yes all potential debts should be listed but if the court knew of his active BK then his attorney should have done SOMETHING to make sure the case was set aside, assuming he does get discharged. TBH this sounds like a violation of the stay. The stay exist regardless of prior knowledge, it is AUTOMATIC. Once aware of the stay, as the creditor knew based on the reschedule, then all further collection action should have ceased.

I find it odd since he filed after he was sued it does not make sense he would not have already had this on his creditor matrix.

true, but not if the OP's h didn't include the debt on the petition...the creditor would have never been notified of the pending bk court...so of course they would have continued their action. i hope there is some way to amend it prior to discharge.

i'm certain this is not a unique problem....many times people "forget" to list...so i'm hoping it's not too late at this point. it seems like it's in between that "60 day" waiting period at this point.

[exHCh7]

So the court knew of his active BK and the attorney continued with the lawsuit?

This was small claims court so there were no attorneys. He did send a letter to the court explaining that he couldn't make the original hearing date of Oct 13 because that was the day of his 341 meeting.

I find it odd since he filed after he was sued it does not make sense he would not have already had this on his creditor matrix.

The creditor was not a creditor until November 10 when the judgment was ordered. But yes he did know about the lawsuit on August 18.

I don't know how to quote multiple posts but to answer tobee43's question, yes he already had his 341 and is awaiting discharge and never listed this potential creditor in his filing. What is the timeframe for ammending the petition? Or is it already too late since the 341 meeting happened 30 days ago?

[wnguyen]

I think there's somewhere on the bk petition it has something called unexpired lease/contract. His lawyer should list this landlord when filing. Right now it's still not too late to amend it to add.

[exHCh7]

I just looked at his filing again and in his statement of financial affairs item #4 where it asks to list suits and administrative proceedings he only listed a money suit against him that Target Corp won and was awarded a $19K judgment for cc debt. No mention of the other lawsuit on his filing, even though it was filed against him on August 18.

I guess it is possible that he didn't know about it when he filed, but he did write a letter to the court at the beginning of October asking for a continuance because of his BK 341 meeting. So he knew about it before the 341 meeting for sure. Maybe his lawyer screwed up, or maybe he forgot to tell his lawyer about it. That's probably more likely.

At any rate does anyone know about the process to add creditors after the 341 but before the discharge?

Thanks for all of the replies!

[exHCh7]

I think there's somewhere on the bk petition it has something called unexpired lease/contract. His lawyer should list this landlord when filing. Right now it's still not too late to amend it to add.

Yes I see that section on Schedule G. So he would include the judgment in that section and file an ammended petition?

[free2breathe]

He just needs to contact his attorney and have him amend his Schedule. The court filing fee will be $26 per schedule and the attorney will likely charge a fee for doing the paperwork. That's really all there is to it though, at least while the case is still open. If he waits till after the close of the case, it costs $260 to the courts to reopen the case, plus the additional feels for filing an amendment. Definitely best to jump on it now.

[tobee43]

This was small claims court so there were no attorneys. He did send a letter to the court explaining that he couldn't make the original hearing date of Oct 13 because that was the day of his 341 meeting.



The creditor was not a creditor until November 10 when the judgment was ordered. But yes he did know about the lawsuit on August 18.

I don't know how to quote multiple posts but to answer tobee43's question, yes he already had his 341 and is awaiting discharge and never listed this potential creditor in his filing. What is the timeframe for ammending the petition? Or is it already too late since the 341 meeting happened 30 days ago?

you did a fine job with the quotes...it's still within the 60 filing period...does he have an atty...and if NOT i'm hoping maybe jb or one of the pro se'ers could give advise to amend the petition.

and what i do not understand is IF both his court date and his 341 were on the same day....then why didn't he do something to amend the petition while he was at the court house.

i think and hope he should have time to amend the petition...once again call the lawyer asap...and if NOT call the court to find out how to amend it...i THINK..but i'm not certain...but i think you still may have some time to amend it...

[tobee43]

Yes I see that section on Schedule G. So he would include the judgment in that section and file an ammended petition?

i agree..about his lawyer...but you need to understand the lawyer only knows what and can work with the information he gave him/her to put on the petition...so in this case it's really not the atty's fault...

now...let me ask you this...if he was being sued ....didn't he know he owned someone the money...i mean the suit doesn't have to be listed, but the creditor does...so if the creditor NOT the judgment was on the petition that would mean that in fact the creditor did violate the stay...

[exHCh7]

The landlord wasn't really a creditor (stepson owed the money) until the judgment was ordered. The landlord sued my exH as a guarantor. The creditor (landlord) definitely does not appear on the list of creditors (I checked).

Yes, he must have been notified about the suit and also the amount ($2592). Who knows why he didn't put that pending legal action on his petition or let his attorney know about it, but it appears that is what happened.

He does have an attorney so what I take from all of your kind replies is that he should contact his atty when he gets notification in the mail of the judgment and the atty will take it from there?

Also, will filing an ammendment show up on pacer? I have been trying to keep an eye on things because, while exH and I have had our history, I hope he manages to stay between the ditches for the sake of our three kids...

[tobee43]

The landlord wasn't really a creditor (stepson owed the money) until the judgment was ordered. The landlord sued my exH as a guarantor. The creditor (landlord) definitely does not appear on the list of creditors (I checked).

Yes, he must have been notified about the suit and also the amount ($2592). Who knows why he didn't put that pending legal action on his petition or let his attorney know about it, but it appears that is what happened.

He does have an attorney so what I take from all of your kind replies is that he should contact his atty when he gets notification in the mail of the judgment and the atty will take it from there?

Also, will filing an ammendment show up on pacer? I have been trying to keep an eye on things because, while exH and I have had our history, I hope he manages to stay between the ditches for the sake of our three kids...

well, i think with some fast action you'll or he'll be able to get the petition done and it will be fine...

best of luck!! and let us know how it all goes for you!