Creditor Lawsuit Counterclaims Post Filing

[willdufauve]

A creditor filed lawsuit in progress will be Stayed after a BK 7 filing but what about the debtor's counterclaims against the creditor for FDCPA violations,etc.?

Is the debtor still able to pursue counterclaims damages against the creditor? What about claims for creditor's legal fees to defend if the debtor loses in court? The suit is disclosed in the bk7 filing and the counterclaims are in the BK estate.

[justbroke]

Yes, you can pursue them. The stay only exists as to acts against you. However, you should have disclosed these pending lawsuits (FDCPA, liability, or other) on your Statement of Financial Affairs. The proceeds are property of the bankruptcy estate unless otherwise exempt. Since you have disclosed this, you need to exempt it as well. Otherwise, the Trustee may take (over) the other case and seek to recover money for the creditors.

[despritfreya]

I need to expand on JB's comments. If and when the Trustee abandons the asset you can continue with the claim. If the asset is exempt only after the time period for objecting to exemptions (30 days after the 341) passes can you pursue the claim. The moment the case is filed YOU are not the "true party-in-interest", the Trustee is. You cannot prosecute a claim that no longer belongs to you. Until it is returned to you and/or you get the Trustee's express WRITTEN permission, you do nothing.

Lastly, while the pending litigation is listed on the Statement of Financial Affairs, your claim is listed on Schedule B.

Des.