Post-Discharge Contact with Debtor and other questions - Long

[AngelinaCat]

tobee43, our friend has downloaded the debtor's petition from PACER, as per LITR's suggestion, and found an amended Schedule F listing his client as a creditor. So I believe that with that statement, and the fact that the creditor has since gotten updates on the case, constitutes that "the creditor has been notified in writing" [my words and quotes]

The questions may be:

'When was the amendment done?'
'How timely was this amendment in relation to the original filing date?'
'How timely was the notification to the creditor, with regard to the debtor's potential discharge date?'

I may think of others while pondering this....

[helpmeout]

yes fraud is an uphill battle. i thought maybe the only way I could speak to him was by making it clear i am speaking to him as an officer of his corporation. but i am not sure that would fly to get past the bankruptcy statute and in any case we are suing his company and him individually, so the ny ethical rules would apply.

believe me i certainly thought it was a trap, but I have a duty to report any non-frivolous settlement offer to my client. and believe me his attorney's discourteous behavior will be remembered.

For heavens sake, you want to claim fraud then you need to prove the case in the BK court. You are violating the BK stay and putting your client at risk of serious fees. And if you don't know how to fight this in BK court, then you shouldn't be representing your client at all.

The Defendant isn't calling you to settle, s/he's calling you to inform you about the BK filing. And all the defendant has to do is file the BK notice with the court you filed in and your case will be dismissed.

[tobee43]

tobee43, our friend has downloaded the debtor's petition from PACER, as per LITR's suggestion, and found an amended Schedule F listing his client as a creditor. So I believe that with that statement, and the fact that the creditor has since gotten updates on the case, constitutes that "the creditor has been notified in writing" [my words and quotes]

The questions may be:

'When was the amendment done?'
'How timely was this amendment in relation to the original filing date?'
'How timely was the notification to the creditor, with regard to the debtor's potential discharge date?'

I may think of others while pondering this....

yes, got it, missed it at first and then glanced through the rest. so it had been amended. they if our OP failed to respond after the amended petition and was property notified i don't know what basis of the law there could be to re-open the case to allow the filing of the ap. it wouldn't hurt to file the motion, but may be a waste of time. appears as though our OP is SOL.

as lady pointed out speaking with another bk atty may help enlighten OP as to the process. (great idea lady).

helpmeout is correct...plus sanctions which could be quite stiff.

[LadyInTheRed]

if our OP failed to respond after the amended petition and was property notified i don't know what basis of the law there could be to re-open the case to allow the filing of the ap. it wouldn't hurt to file the motion, but may be a waste of time. appears as though our OP is SOL.

I suspect that the creditor received notice shortly after the amendment. So, based on the late notice, they may have a basis for filing a petition to revoke the discharge. If I understand correctly, the case hasn't closed yet, there are assets and the deadline to file a proof of claim hasn't expired.

[attyny1234]

Lady you are correct on all counts.

[LadyInTheRed]

The Defendant isn't calling you to settle, s/he's calling you to inform you about the BK filing.

That very well may be true. The fee agreement with his/her attorney probably only covered work through the 341, which is why the attorney isn't returning calls.

And all the defendant has to do is file the BK notice with the court you filed in and your case will be dismissed.

In this case, the debtor should file the order for discharge and I think the case would be dismissed against the individual debtor, but not the corporation. I am not certain, but I believe that a state court case doesn't necessarily have to be dismissed before the BK discharge. It just can't go forward against the debtor who filed BK. If the BK is dismissed without a discharge, the case can proceed. In this case, there is a corporation as a defendant. So, the case can continue against the corporation since there is no co-debtor stay in a Chap 7.

[tobee43]

Lady you are correct on all counts.

yes, i think as we both viewed this, OP may be SOL, however, it's still worth a shot. perhaps based on new evidence your client provided? you never know, and it doesn't hurt to file the motion anyway. i most certainly would do to the late filing of the amendment. don't know, it's really going to depend on the trustee here.

[AngelinaCat]

I am not certain, but I believe that a state court case doesn't necessarily have to be dismissed before the BK discharge. It just can't go forward against the debtor who filed BK. If the BK is dismissed without a discharge, the case can proceed. In this case, there is a corporation as a defendant. So, the case can continue against the corporation since there is no co-debtor stay in a Chap 7.

Here is my 'take' on this: No, a state court case, or civil case that is somewhere in progress when BK is filed, is 'tolled' or stopped dead in it's tracks, while the BK is in progress. If the case is a suit regarding debts that the debtor owes, but cannot pay--providing that the debt is dischargeable under BK law--then that case becomes moot, and the court dismisses the matter.

If the suit is against the debtor for something like 'spitting on the sidewalk', then that case is 'tolled' or stopped, until after the BK is discharged. I am not sure that it is 'tolled' until after the Close. But I know that once Discharge has happened, the plaintiff can resume the case.

All of this is speculation on what our OP's client may or may not have as a case and evidence. We really do not know any details, and for all intents and purposes, this is thread is largely an exercise in educated guessing.