Listed Creditor Wrong

[sunshapestan]

Hello,
I filed chapter 7 BK and it was discharged in Jan. I am now being sued by a creditor because I listed it under the wrong name in my BK. I listed the president of the company instead of the corporation name. I never gave it a 2nd thought because each month when I wrote the check, I made it payable to the person and not the corporation. Can he still sue me? Is there a way a can fix this problem?
Thanks!

[df04527]

i think it depends on if you were a asset or a no asset case. If no asset and the debt was incurred pre filing then they would be considered included.

[despritfreya]

The "creditor" is taking advantage of you and probably violating your discharge. . .

1. The address you used in the bk - is it the correct address for the corporation? If yes, then I don't care what name you directed it to. The corp got actual notice of the bk. Debt discharged.

2. Let's assume that notice was not sufficient (not likely but. . .), were you an "asset case" or a "no asset case"? If you were an asset case then there is a problem. If you were a "no asset case" then the debt was discharged UNLESS the creditor is alleging some kind of fraud.

Please give a little more detail as to what happened in the bk.

Des.

[sunshapestan]

It was a no asset case. I did own a business (this specific person is who I purchased the business from), I sold the business and then filed chpt 7 on my personal debts and business debts. I listed everything in the bk....all debts and also all information about the sale of my business. The only mistake that I made was I listed this debt in the person's name and not the corporation name. I spoke with my attorney's paralegal and she told me it doesnt matter its the same debt and she sent him a letter. But then today I received a summons to court.

[despritfreya]

I love cases like this. Go back to your attorney. . . reopen your case. . . file an "Application for Order To Show Cause Why Contempt Sanctions Should Not Be Imposed".

As to the State Court suit. . . file a Notice of Bankruptcy Filing (attach a copy of the Discharge as an Exhibit) along with a "Motion to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted" - make sure you ask for your legal fees in this Motion. Not sure if your bk attorney will do this. Can tell you that my Firm does not step foot in State Court so we would refer this part out.

Des.

[chrisdfw]

It was a no asset case. I did own a business (this specific person is who I purchased the business from), I sold the business and then filed chpt 7 on my personal debts and business debts. I listed everything in the bk....all debts and also all information about the sale of my business. The only mistake that I made was I listed this debt in the person's name and not the corporation name. I spoke with my attorney's paralegal and she told me it doesnt matter its the same debt and she sent him a letter. But then today I received a summons to court.

If the president of the corporation recieved notice, and he is aware of this suit or caused this is a clear violation of discharge. Even if it isn't, then it is a discharged debt anyway in a no asset case. The only real question is whether the corporation or president is liable for damages. In either case you are not liable for the debt as far as I know. I am not an attorney but this is my understanding.

[sunshapestan]

Do you know what my rights are? I am really tired of being stressed and harrassed about this debt. I know he knows that the debt was discharged, my attorney has notified him 2 times now.

[sunshapestan]

So are you saying that I would basically sue them for making me reopen the case to change the name of the debt that they knew was discharged?

[despritfreya]

So are you saying that I would basically sue them for making me reopen the case to change the name of the debt that they knew was discharged?

No. . In the bk court you would be asking the judge to impose sanctions for violating the discharge. This is a "contempt" proceeding. You are not going to get anything but a sanction - something the judge will decide as he/she deems appropriate.

In State Court you should defend the action since you have an "affirmative defense" - discharged in bk. Instead of answering the Complaint you file a Motion to Dismiss. Your attorney can fill you in on the details.

Des.

[sunshapestan]

No. . In the bk court you would be asking the judge to impose sanctions for violating the discharge. This is a "contempt" proceeding. You are not going to get anything but a sanction - something the judge will decide as he/she deems appropriate.

In State Court you should defend the action since you have an "affirmative defense" - discharged in bk. Instead of answering the Complaint you file a Motion to Dismiss. Your attorney can fill you in on the details.

Des.

But they could be liable for my attorney fees to file the "Motion to Dismiss"?

[despritfreya]

You always ask for attorney's fees. It will be up to the Judge as to whether or not you get them.