Should I start a claim in small claims court after having filed for BK?

[Zee]

Hi all,

I filed BK on October 29, 2010 and my 341 is December 17, 2010.

I want to make a claim in small claims court for a defective computer that the manufacturer refuses to repair. This claim could be for as much as $2000.00.

Should I wait to start this until I am discharged? I actually expect the manufacturer to settle, and the time frame on that seems to be about 30 days or so.

So, I could receive a check for $1500.00, or thereabouts, and if I filed this week I might get the check around December 20.

What do you folks think?

Also, I saw a thread here about food stamps being considered income. Yipe! I didn't even think about that being income. I didn't mention it to my attorney - I just didn't think of it. What should I do about that?

I am unemployed, getting like $127.00 per week in benefits plus the food stamps, the value of which is $91.75 per week. Can I get in trouble here?

My BK is a no asset case, we are of very modest means.

Thanks.

Zee

[DebtEnder]

Anyone that you think owes you money is part of the BK estate. If you get a settlement it will be based off damages you incurred before filing I assume, as such it is part of your BK. IE if not exempted the TT can claim it. In fact the TT may pursue the case himself if you cannot exempt the possible proceeds from it. During BK anything you own or could possibly own, based on before BK filing actions, is managed by the TT until he says otherwise. Failing to make him aware of it does not mean he would not be interested.

[Zee]

"If you get a settlement it will be based off damages you incurred before filing I assume, as such it is part of your BK. IE if not exempted the TT can claim it "

Actually, this device just failed five days ago. I don't HAVE to do anything about it. I can just accept their decision.

The company has told me that they don't wish to repair it as it is out of warranty.

I think I have my answer, though.

Thank you, DebtEnder.

[DebtEnder]

Well if there was no potential lawsuit before filing then you should be ok. It seems since you did not have a defect until after filing that this exist outside the BK estate. The TT may raise an eyebrow if he gets wind of it, but I don't see how he should have a claim on it. I assume the computer's value was exempted in the filing and as such the TT won't try to liquidate the device outright?

[tcreegan]

Hi Zee,

The US Trustees position on the means test is food stamps are not income.

But in your case I don't think it matters, even if you add in the food stamps I'll bet you are still below median income for IL

My first instinct is to stay out of court until your BK case closes.

My second instinct is that if they settle w/ you its not going to matter b/c it is after the filing date.

If asked at the 341, just be honest. If not asked, don't tell

Good luck with it,

Tom in Colo

[Zee]

Well if there was no potential lawsuit before filing then you should be ok. It seems since you did not have a defect until after filing that this exist outside the BK estate. The TT may raise an eyebrow if he gets wind of it, but I don't see how he should have a claim on it. I assume the computer's value was exempted in the filing and as such the TT won't try to liquidate the device outright?

DebtEnder, all that is correct. I do think, upon further reflection , that to pursue this now is not the way to go.

Thanks for your comments.

[Zee]

Hi Zee,

The US Trustees position on the means test is food stamps are not income.

But in your case I don't think it matters, even if you add in the food stamps I'll bet you are still below median income for IL

My first instinct is to stay out of court until your BK case closes.

My second instinct is that if they settle w/ you its not going to matter b/c it is after the filing date.

If asked at the 341, just be honest. If not asked, don't tell

Good luck with it,

Tom in Colo

Hi Tom,

Yes, I am way below the median income for Illinois even with the SNAP. What I was trying to find out in regards to the stamps is that since I didn't mention them to the attorney (I just didn't even think to do so, completely slipped my mind) it would be difficult to add them in since the paperwork is filed, thereby perhaps giving the appearance of keeping something from the trustee. Since it has been made clear that the filing and 341 is a "come to jesus" moment, I just wanted to make sure my "t's" were crossed, so to speak.

On the matter of the computer, I think I will just wait until after I am discharged. That is the prevailing advice from this board and my attorney, whom I have since spoken to on the subject - he gave an answer somewhat similiar to yours, Tom : yes, the computer was exempted, but lets not upset the apple cart. The attorney went on to say that we may need to mention it at the 341 meeting.

Thanks for your thoughts, Tom.

[tcreegan]

Hi Zee,

Glad I am on the same track as your lawyer....must be doing something right...

I think you apply the same strategy on the SNAP, yeah it is exempt but lets not upset the applecart. If asked at the 341, be honest, if not asked, don't tell...

Good luck, I am glad you have a good lawyer on your side!

Tom in Colo