4 years after BK discharge, collection agency pressing charges against me

[joward]

Hi everyone,

I hope that someone may be able to provide me with advice. In late 2008, I successfully filed for Chapter 7 (pro se, with help from users on this forum!). My case proceeded with no surprises and was discharged in early 2009. Since then I have gotten a better job and successfully rebuilt credit.

In the interim, I would periodically receive letters or calls from collectors trying to collect on a credit card debt that I included in my BK filing and was presumably discharged. I would tell them the case number and fax them supporting paperwork, and the calls/letters would stop until I received another piece of correspondence from another collection agency trying to collect the same debt. Rinse, repeat.

Today, my family (not me) received a call from someone who stated they were looking for me for the purposes of serving me papers. I called the number they left, and the man told me that there was a lawsuit being filed against me by the DA for check fraud, with the plaintiff being the original credit card company. I explained that the debt was discharged in a bankruptcy. He quoted back a handful of generic facts about my case (such as the filing and discharge years) and said that the debt was not listed in the paperwork and is still valid. He said that the total amount of the debt was now $7000+ (the original credit card debt was $1200) and that it would be felony fraud charges, but he could make my problems go away if I paid him $700 give or take. I informed him that the debt was listed in the schedules (I checked and verified that it was) and said that I would file information with the court to that effect. He mentioned that I should submit a copy of the schedules to him right away and that he would forward it to legal and “see what he could do.” Before he hung up, I got his name, company, and a court case number that I have not verified with the local courts.

The entire exchange seemed bizarre, and I’m not sure where to go next. I feel like I’m just getting shaken down to see if I will pay on a discharged debt, but I’m not sure. I have not sent him any information. What should I do?

[keepsmiling]

If you were a no asset case, he doesn't have a leg to stand on.
Pretty much he's just blowing smoke. Don't let it get to you.
IN FACT-- if you send the discharge papers and harassment continues- sue them for FDCPA violations. Could be a nice chunk of change for you.
And WELCOME and congrats on finally posting and your successful pro se! Hope you will post some more, could be very helpful to others considering doing so!!!

[justbroke]

This is so bizzarre. No one can threaten jail time or that it is a felony fraud. if it was felony fraud, they would have already went through "normal" channels to prosecute the offense. In fact, I believe the words used by the collection agency were "illegal" in and of themselves under collection law.

Regardless of what they said, the debt is discharged. In fact, they only had until the bar date for determining dischargeability to fight this. This creditor is just preying upon an ill-informed pro se debtor. I would pounce on this creditor without any regard for any lack of knowledge, on their part, that the debt was in fact discharged. If you were a no-asset case, the dischargeability of the debt is not in question! A (Chapter 7) discharge in a no-asset case, discharges "all" debts that arose before the filing of the petition unless you reaffirm some specific debt.

In fact, you should re-open your case for the sole purpose of a willful and egregious violation of the permanent discharge injunction and for sanctions. This type of activity will continue unless and until debtors go back to the bankruptcy court to have the offenders punished and sanctioned. I might shop this around with several bankruptcy attorneys to see if they would take this on contingency. Some attorneys like these types of cases where they can earn fees and punish bad creditors.

Of all the creditors that tried to call me and tell me I owed them something -- which was discharged -- not one has popped back up. I never "talk" to these people anyhow. I tell them, in no ambiguous terms, that the debt is discharged and that they should seek legal advice before saying another word to me. Even if they did say "another" word, I let them know, again, that I would personally name them in my motion for contempt and sanctions and that they can personally explain to the judge why they are trying to collect on a discharged debt.

By the way, and I'm no attorney, I don't know how a credit card company can sue you for check fraud. It doesn't even make sense and this person may have just been "fishing" for information. Regardless, it is time to pounce and use the power and equity of the bankruptcy court and the finality of the bankruptcy discharge and permanent discharge injunction to set this creditor straight... once and for all.

In fact, this whole thing is making me quite disturbed. I believe that in no way should you let this go. I truly feel that this is a perfect example of a situation in which the case should be re-opened. (There would be no cost to you to re-open, even though the Clerk may think you should pay the $260 re-opening fee. Just make sure, if you do file a motion to re-open, that you mention that it is to determine dischargeability and for sanctions; there is no cost for those items.)

[joward]

Thanks both of you for your replies! Thanks especially justbroke; it was your advice that you gave me so long ago that made it possible for me to file successfully on my own (I wish I could remember what my username was...mentalward perhaps?). My case was a no-assets case, and I was pretty firm in the impression that all debts of this nature were discharged-even if they weren't listed-unless it can be shown that I omitted them intentionally, which was not the case here. In fact, this debt was one of my oldest, dating back to 2005, so I was able to include the original debtor as well as the initial collection agency in my schedules. It was well-documented.

He seemed to be tossing out information that would be easy to find with a couple of basic searches. The check fraud is especially bizarre, as I have never written bad checks and there were none included in my filing, but I think I know where it came from: Freakishly, there is another individual in my small town with the same first name, last name, and birthday as me, who has several bad-check warrants out. Only our middle names and birth years are different (and then only by one year: '82 vs. '83). This collector probably found it on some public-records search and thought he'd threaten me with it.

I will check on the case number he gave me to ensure that there is no legal action pending against me, and then take it from there. I am interested in re-opening this case in pursuit of sanctions, but I have little faith in the local attorneys. There are only two, and during my hearing in court, every single bankruptcy case that had been filed by either of them ran into trouble due to obvious paperwork problems. One of the lawyers even showed up wearing dirty jeans, which drew the ire of the trustee! Only myself and one other couple, who also filed pro-se, made it through unscathed. The other 20-25 cases were continued and the attorneys dressed down for wasting the court's time. Yikes! I will post any updates, in case this is useful to anyone else.

[frogger]

With that information, it's starting to make sense. If there is another person with the same name that was writing bad checks, then the collector probably does have you confused with him. If that is the case, that's why he was threatening you, even after you stated that you had discharged in chapter 7, because you can't discharge criminal acts.

When you speak with the collector again, you need to point him in the right direction, and that direction is not towards you......

[keepmine]

At a minimum, I'd contact both the FTC and, your states AG's office and file complaints.

[justbroke]

I don't believe that anyone should be treated that way by any creditor. Personally, I would have already submitted my motion to re-open, yesterday.

[frogger]

I don't believe that anyone should be treated that way by any creditor. Personally, I would have already submitted my motion to re-open, yesterday.

And I personally believe that as well.

[GoingDown]

This is a scam.

They are violating the FDCPA as well as bankruptcy court laws.

Don't pay them anything.

Record their calls, if possible, and tell them you are going to be giving these recordings to your attorney general's office. And then follow up by filing a complaint against them with the Attorney General's Office. I have personally found them to be very helpful in dealing with rogue debt collectors like West Asset Management, etc.

In the meanwhile realize that they are lying about everything. They bought a worthless bankrupted debt and they know it is worthless. The only way for them to get a penny out of it is to scare you into doing something foolish, like paying them.

They are so corrupt, that they probably don't care about the FDCPA, but nevertheless, they are violating it, and if you record their calls, you will have proof that they are violating it.

I would also send them a DV and C & D letter:

"I dispute the validity, and I request written verification from you.

This may be a case of mistaken identity or identity theft and I demand to see the information you have concerning this matter.

It is inconvenient for me to receive phone calls from you at any time and any location. Do not call me on the phone ever again.

I revoke any prior authorization you may have had to call my cell phone number and I demand that you never use an auto-dialer to call me on my cell phone.

Your continued collection activity is in contempt of the bankruptcy court. BK #........"

And send it off by certified mail.

They are already violating the FDCPA by threatening to put you in jail, lying about it being fraud, etc. But after they get this letter, they will be violating the FDCPA every time they call you on the phone. It is a flat $1000 in statutory damages, but there have been recent cases where debtors were able to get huge judgments against debt collectors who willfully and blatantly violated the FDCPA over and over again. If they use an auto-dialer to call you, they will be violating the TCPA, which is violation which carries about a $500 per call statutory damage. It mounts up. Enough to get a consumer attorney involved to sue them, if necessary for such a blatant violation of both the FDCPA and the TCPA.


Here's an interesting case...

"A jury in Montana awarded $311,000 last week to a Montana man who was sued by the debt collection law firm of Johnson, Rodenburg & Lauinger. JRL tried to seize his social security disability payments to satisfy a judgment for CACV, a debt buyer. The jury awarded $1,000 in statutory damages [for violating the FDCPA], $250,000 for the consumer’s emotional distress, and another $60,000 for punitive damages, the maximum permitted by Montana law."

http://caveatemptorblog.com/johnson-rodenburg-lauinger-to-pay-311000-for-fdcpa-violations/

[GoingDown]

I don't believe that anyone should be treated that way by any creditor. Personally, I would have already submitted my motion to re-open, yesterday.

And yes, I agree with this, too.

[malf1204]

The Statute of Limitations for Fraud in Montana is 2 years.

[BigJohn]

Have you ever noticed ........... when these fine, up right citizens tell us words we do not want to hear ..... they NEVER follow up their vile threats with a letter?