Small Claims Suit filed against me while my BK7 was processing...

[Saffy]

Hi Everyone,

I file for BK7 on 07/13/2010, and was discharged 10/15/2010. I had a small claims suit filed against me on 9/22/2010, and default judgment was entered against me on 12/2/2010.

What will I need to do now to avoid the judgment? I live in CA. Thanks.

~Saffy

[tcreegan]

Hi Saffy,

Well, one thing you could do is take them to BK court and collect damages for their blatant violation of the BK automatic stay....

The other thing you could do, if you're feeling nice, is take a copy of the discharge order and attach it to a motion to vacate/set aside the judgement and file it in the court where the judgement was entered.

Do you have an attorney for the BK case? I am just incredulous about this, was this creditor listed in your BK? If they had notice of the BK and filed the suit anyhow, I would like to see your BK judge pin their ears back.

Tom in Colo

[Saffy]

Hi Tom,

Thanks for taking the time to reply. The "creditor" was not listed in my schedules when I filed petition. Will I still be able to file motion to vacate and attach my discharge order? What will happen to the judgment once I do this?

Thanks

[chicagoannie]

Hi Tom,

Thanks for taking the time to reply. The "creditor" was not listed in my schedules when I filed petition. Will I still be able to file motion to vacate and attach my discharge order? What will happen to the judgment once I do this?

Thanks

I am curious as to the answer to Saffy's question. Anyone?

[daylate]

Since the "creditor" is in quotes does this mean that someone you didn't owe money to file suit against you? If so I'm guessing you could be on the hook.

[free2breathe]

I was also wondering about the creditor. Was it perhaps a JDB or another collection agency that acquired the debt from an original creditor that you did have listed? Or was it simply a creditor that you forgot to list in your bankruptcy petition?

[chicagoannie]

And I was thinking perhaps the "creditor" was a personal loan maybe not included in the OP's BK...

[tcreegan]

Hi Saffy, hope this isn't a double post, computer is not feeling well today....

The "creditor" was not listed in my schedules when I filed petition. ....ahhh, therein lies the rub....

Will I still be able to file motion to vacate and attach my discharge order? ....yes and this is most likely the best solution.

What will happen to the judgment once I do this? ...goes away like it never happened

File the motion to vacate in the court where the judgement was awarded, make 4 copies of the motion + discharge order, one for you, one for the court, one for the creditor, one for the creditors lawyer. Ask the court clerk what is the proper way to serve these papies on the creditor and creditor lawyer. Worst case scenario they tell you no and you go to Plan B

This works more often than not b/c BK courts have consistently ruled that pre-petition debts that were accidentally left off the BK creditor matrix are still discharged. The courts almost universally invoke the 'fresh start' envisioned by Congress when they wrote the law. (Bk judges being generous, I don't think Congress 'envisions' much)

Plan B
The other path is to amend your BK filing to include this creditor. If your case hasn't closed yet, that saves a chunk of $$. Amending the schedules, refiling, re-serving everyone, another 341? ....from other folks posts, apparently this can be fairly easy to do in some courts, and a costly pain-in-the-posterior in other courts.

Whichever path you take, keep us posted on how it turns out!

Tom in Colo

[Saffy]

The reason I put creditor in quotation marks is because it is not a creditor. It is my ex-tenant who lived in my home who claims a security deposit is still owed.

Am I able to file the motion to vacate and attach my discharge even if the BK case is closed?

Thanks everyone, especially you Tom - I'll follow your instructions to the T.