Weird situation here and needing some input

[sscott4775]

Hi,
Sorry if this is long, but I could definitely use some input. On the Statement of Financial Affairs form, there is a question about lawsuits the debtor has been a part of. This would seem like a simple yes/no question, except, that's not the case.
One night, about a month or so ago, I was browsing through online court records from the town where I used to live, just to see in the off chance if I had been sued, because many of my debts are old enough to have been placed in collections and I could have faced a lawsuit. Well, come to find out, Capital One had filed papers with the local courthouse for a $934.00 debt. Yes, they sued over that amount. Well, I called the courthouse, and, this is where it gets confusing, but the CC company listed the wrong address when they filed the suit. Instead of the correct address number, they were one digit off! They listed 102, instead of 101.
Well, the clerk that I was speaking with, I gave him the correct address (this was my mother's address, by the way), so, if they wanted to try to serve the papers, they could go ahead and do so. Well, a couple of weeks go by, and then a month, and still no word on them serving the papers. Sooo...I'm not sure whether I should list that I've been sued or not! lol! Really confused on this one. Technically, yes, they have filed papers for a lawsuit, but can I honestly say that I'm part of a suit considering they never came back to serve the papers and give me a chance to respond?
Again, I apologize if this was so long and confusing, but I would really appreciate any help on this one!

Thanks!

[tobee43]

sscott....when filing out your petition it's best to name every creditor you can think of...and to provide a GOOD address for them...that may take some research on your part...but proper notification to the creditor is a vital part of your filing.

you did the search, you saw the effort and the suit...i would personally list it and use "unknown" for the amount, as at this point you do not know what the exact amount of the suit is with interest etc...although the amount does not matter as much as giving them "proper" notice of your filing.

really...this can and will come back to haunt you at some time in your life if you don't clear it up. also, make certain you let the atty you will be using knows that there are suits or judgments against you, since after your discharge each will require a motion to vacate...which could cost you more in legal fees, but well worth it for you!!

best of luck!

[Flamingo]

sscott....when filing out your petition it's best to name every creditor you can think of...and to provide a GOOD address for them...that may take some research on your part...but proper notification to the creditor is a vital part of your filing.

you did the search, you saw the effort and the suit...i would personally list it and use "unknown" for the amount, as at this point you do not know what the exact amount of the suit is with interest etc...although the amount does not matter as much as giving them "proper" notice of your filing.

really...this can and will come back to haunt you at some time in your life if you don't clear it up. also, make certain you let the atty you will be using knows that there are suits or judgments against you, since after your discharge each will require a motion to vacate...which could cost you more in legal fees, but well worth it for you!!

best of luck!

tobee...his inquiry is in the "pro se" forum - he will not be using an attorney....he is looking for advice from experienced pro se filers on here...

[tobee43]

tobee...his inquiry is in the "pro se" forum - he will not be using an attorney....he is looking for advice from experienced pro se filers on here...

oh, yes, i know..but it when it gets complicated, many times it may be best to get an atty. i understand the PO's a pro se'er. just would hate to see someone get in over their heads and make an error..i should have been "clearer" on that and stated maybe it's time, or suggest to go see an atty with these types of complications.

[justbroke]

Really confused on this one. Technically, yes, they have filed papers for a lawsuit, but can I honestly say that I'm part of a suit considering they never came back to serve the papers and give me a chance to respond? Again, I apologize if this was so long and confusing, but I would really appreciate any help on this one!

I don't think it would really matter if you listed the lawsuit or not since you were never notified. As another poster suggested, just make sure you list all creditors. The reason the Statement of Financial Affairs (SoFA) asks for disclosure of lawsuits is really to see if you are a Plaintiff and/or you may be entitled to some sort of award or settlement which could become property of the Estate.

I would list it on the SoFA just to cover all bases. I'm assuming that there was no judgment issued in that case, and as such, there isn't a judgment. You may want to recontact the Clerk and ask the "procedure" to file a Suggestion of Bankruptcy in that case. This "should" keep the case from progressing further. (Of course, you will need to have already filed your Bankruptcy case so that your Suggestion of Bankruptcy will have your case number and the District/Division in which your case is filed.)

[free2breathe]

I think I would go ahead and list the suit on the Statement of Financial Affairs. For disposition, I'd simply state that you are aware that Capitol One filed a lawsuit for X amount, that you discovered it by contacting the court, and that you were never served papers. I think I'd even state that you gave the courts your correct address to serve the papers, but as of yet, you haven't been served. Your Capitol One debt is listed in your Schedule F, and it was a pre-petition debt. Some would say don't bother listing it, but as a pro se filer, I have to say that I would rather disclose every bit of information I know. You can call the clerk back to find out about the case number.

Now, as far as the lawsuit being filed, I would send the court where the suit was filed a "Suggestion of Bankruptcy" just as soon as you file your petition. Capitol One will already be receiving a notice from the bankruptcy court. This should stop the lawsuit in its tracks. The court does not want to hear a case that is included in bankruptcy, as they know that if they issue a judgment, it can be vacated due to being included in bankruptcy.

Hope this makes sense. I feel like I've done a lot of rambling ;)

*totally missed jb's post, didn't scroll down enough. yep, I ramble

[sscott4775]

Thank you all for replying!
But I do have an interesting update: I went back online to the Kentucky court records site...the one that I first saw that I was being sued...well, after searching through very thoroughly five or six times, my case has disappeared! I don't know if Capital One just dropped the case because they couldn't find me (because they had the wrong address) or what. I thought by giving the correct address to the clerk they would send the sheriff back out and serve the papers, but evidently not.
I guess the only thing to do is come Monday, call and verify that this is what happened. If they did drop, then, hooray! one less thing to fill out on the SoFA!

Thanks again, everyone!!

[tigergem]

I have seen creditors obtain judgments after serving the wrong person at the wrong address. It happens. How it disappeared, who knows? Withdrawn? I kinda don't think that would make it disappear completely. I think it would show as withdrawn. But you can list the creditor anyway, and if you really don't know the amount, list it as the amount $1.00 and also list it as disputed. It will be up to the creditor to file a claim if they are to obtain any distribution.

[sscott4775]

Hi tigergem,

I called the courhouse today and they told me that the case had been dismissed on Oct. 29. I'm not gonna rule out the possibility that they wouldn't file again, but my paperwork is almost finished, so I'm gonna get this turned in as quickly as possible. Hopefully they'll get notice of the filing before they consider refiling.

[tigergem]

It doesn't matter, really, if they refile or not, if you know for sure you are filing bk. No matter where in the process of the lawsuit they are when you file bk, the automatic stay takes precedence over it and the suit will just be dismissed again. They will simply have wasted attorney and filing fees. Don't worry about it.

[sscott4775]

Oh, I won't. I am relieved to hear that it was dismissed, but like you said, the automatic stay has precedence over the suit, so I'm sure everything is going to be just fine.