Friend included me in Bankruptcy??

[mdj67]

I borrowed a friend money quite a long time ago, over several years we would talk and she just wasn't in a good place. Finally, she has a very good job, just married and her husband makes great money so I contacted her and about a week or so later I get a letter from an attorney that basically states, sorry we overlooked sending you a notice (4 YEARS AGO) but she filed bankruptcy and no you need to go through us.
I am blown away because she and I have talked about this - now I didn't get my chance to go to the hearing and explain why I shouldn't be included in the dismissal.
Sad things is, I see her almost every day at work and I can't stand it. When she needed help I helped, now I just started working after 2 years of unemployment and need that money. Do I have the right to take her to small claims court?? She never had any intention of adding me to the list of creditors -- HELP in Minnesota please.

Matt

[DesdemonaB]

Wow - Sorry to hear you were dissed by a so called friend.

IMHO I doubt she included you on her petition and is now scrambling to cover her butt and is hiding behind her lawyer.

Contact her lawyer and ask for a verification that you were listed as a creditor - if they bulk ask for her case number then sign up for a PACER account and see if you were truly on the petition. If you were truly listed you would see yourself on Schedule B6 as well as the creditor matrix – if you don’t see yourself then she committed fraud as well as perjury @ her 341 meeting.

Do you have anything in writing? A loan agreement or promisary note? Did you give her cash or write a check that she cashed? You will need show you loaned her money and she agreed to pay you back and that she is not viewing this as a gift.

Go through her lawyer, if you speak with her directly emotions will get in the way and you might say something that could hurt you in the end. Besides she has to pay her lawyer fees not you.

If you start to fell like you are getting the runaround I would ask her lawyer "what is the process is to report BK fraud?" I bet that would get their full attention.

Here is the link to the UST fraud process just in case http://www.justice.gov/ust/eo/fraud/index.htm

Oh and this "friend" needs to google the word: Karma

[marie]

She may not be legally obliged to pay you, but Morally, she should, as she is now in a better financial position. Even if the debt was included and written off in the BK , she could still repay voluntarily after the discharge. I don't have any legal knowledge, but I'm sorry this is happening to you.

[biotechsolution]

How much are we talking about?? 10's of thousands of dollars? If it's a smaller amount, I'd chalk it up to experience. You only recourse is if her bk was an asset one.

[tobee43]

sadly, you most likely can't do anything other than file a motion that you were not notified.

my understanding, and i have heard to the contrary on this site, however, i feel strongly on this point.

a creditor MUST get "proper" notification from the court. that is why the 60 day rule is there, so one can file an objection to the discharge of the debt. now, while this may have NOT been a secured debt, if it was NOT included in the bk i would say....she still owes you. absolutely.....and if, as biotechsolution points out....if and only IF it's worth it, i do think you have a right to collect the debt. but will you win in court....doubtful...

if she inadvertently left you off, that's NOT your problem, i believe it's hers, so i would at the least consult an atty and see what their thoughts are.

i might be incorrect...i haven't researched the exact law, i just know you have a legal right to "proper" notice by the court informing you of her pending bk and your right to object....... and you didn't....but, again, the question is, will you win the motion in court .

[Alt2Att]

Sorry to hear about your situation. I hope things work out and you can salvage a friendship.

[free2breathe]

Before doing anything else, I think I'd sign up for a pacer account or go to your local bankruptcy court and ask how to go about getting access to the file. If the case was no-asset, chances are great that the bk court would include your debt as discharged in her bankruptcy. That would give you the information you need to decide whether to pursue this legally. If it was a no-asset case, that means none of her creditors received a dime, and you would not be receiving anything either - even IF you hadn't been listed on her original petition as a creditor. On the other hand, if it was an asset case and you weren't listed, you have ground to stand on. You should have been listed and received notice, and if you weren't, she may have a problem.

Sometimes the hardest lessons in life involve friends or family and money. Sad to say, but it's true.

[tobee43]

Before doing anything else, I think I'd sign up for a pacer account or go to your local bankruptcy court and ask how to go about getting access to the file. If the case was no-asset, chances are great that the bk court would include your debt as discharged in her bankruptcy. That would give you the information you need to decide whether to pursue this legally. If it was a no-asset case, that means none of her creditors received a dime, and you would not be receiving anything either - even IF you hadn't been listed on her original petition as a creditor. On the other hand, if it was an asset case and you weren't listed, you have ground to stand on. You should have been listed and received notice, and if you weren't, she may have a problem.

Sometimes the hardest lessons in life involve friends or family and money. Sad to say, but it's true.

good idea! asset or no asset case...Op should have still been given proper notification from the court as per the law...

Obtaining Copies of Bankruptcy Documents

Copies of bankruptcy documents can be obtained in a variety of ways depending on when the case was filed and/or closed.

Beginning with 1998 cases and forward, copies of bankruptcy and adversary case documents are available through electronic case filing system (ECF). Case documents can be viewed and printed from your computer. To access the information, you must have a PACER account. If you do not have a PACER account/password you can register for one on-line by clicking here http://pacer.psc.uscourts.gov/ No fee is owed until you accrue more that $10 of PACER usage in a quarterly billing cycle.


however, i would think you would at least have to know the case or docket number, the date of the filing...etc. as well, i don't think that someone else can obtain the records....i'm not certain if they will require a SS number?

[chicagoannie]

however, i would think you would at least have to know the case or docket number, the date of the filing...etc. as well, i don't think that someone else can obtain the records....i'm not certain if they will require a SS number?

I was able to look up a local bankruptcy on PACER - all I knew was the person's name and which district they filed.

[tobee43]

I was able to look up a local bankruptcy on PACER - all I knew was the person's name and which district they filed.

cool!!! then what?? LOL!!!

i guess she can see if she was listed. however, the law, is clear, she MUST get notified....but, it she was listed with her proper address she is SOL...although, really the only chance she has is to file the motion if she was not notified and then it's still rare that she would win in the courts...although possible....

[Flamingo]

To the OP - I am not sure if a statute of limitations would apply to your matter or not since you state it has been quite a while since you loaned her the money. If you have nothing in writing or a cancelled check or other document stating you lent her the money (do you have any emails saved?), I believe you probably will have to lick your wounds on this one and chalk it up to experience as much as you hate the idea. Morally, she owes you. Not too many people would do this to a "friend." She should have advised you she was in a bad place 4 years ago and gone over the whole thing with you since she knew she owed you money. As the others stated, you need to go to your area BK court (or access Pacer) and find out what went down and if you show up. It's up to you as to what you want to do - let it go or one quick posting in any social forum about what she did would fly all over the internet...it's up to you how much you value her "friendship."

[chicagoannie]

cool!!! then what?? LOL!!!

OK, I admit it, my halo is a LITTLE TARNISHED, lol....Tobee - this was the person I told you about, that I got unwantedly pulled into their custody mess because they lied to family court. So I peeked at the person's BK just to see what all they'd lied to me about their finances. And I could see the entire BK, every document.

[justbroke]

I would first be very cautious now that you are notified that there was a bankruptcy filing. You do not want to be hit with a lawsuit on a violation of the permanent discharge injunction. Second, if it's worth it, look up the case and see if it was a no asset case. If it was a no asset case then you are pretty much done, unless the precedence in your District states otherwise.

Otherwise, as free2breath wrote, you may be able to sue the friend if it was an asset case and that you were never notified. Best of luck on this.

[tobee43]

OK, I admit it, my halo is a LITTLE TARNISHED, lol....Tobee - this was the person I told you about, that I got unwantedly pulled into their custody mess because they lied to family court. So I peeked at the person's BK just to see what all they'd lied to me about their finances. And I could see the entire BK, every document.

flamingo: remind me to never borrow any money from you......are you a bit less strict with a cup of sugar....LOL!!! wow....that's scary.. if i ever owe you money i promise you in front of everyone i will pay you back!!! all over the social network...oh my!

chicagoannie: now i get it!!! that just didn't sound like your tone..

jb: i still question the fact whether the 7 was an asset case or not, if there was no proper notifcation if the debt was left off the petition? i understand if it's a no asset case there is really no recourse. but if the amount is substantial enough, and one can prove they were left off the petition... shouldn't there at least be attempt to retrieve some of the money?

and flamingo poses another good question...what is the statue of limitation on even attempting a recourse action?

Federal Rules of Bankruptcy Procedure or the Federal Rules of Civil Procedure:

(b) Joinder of petitioners after filing. If the answer to an involuntary petition filed by fewer than three creditors avers the existence of 12 or more creditors, the debtor shall file with the answer a list of all creditors with their addresses, a brief statement of the nature of their claims, and the amounts thereof. If it appears that there are 12 or more creditors as provided in 303(b) of the Code, the court shall afford a reasonable opportunity for other creditors to join in the petition before a hearing is held thereon.

Rule 1003(b) implements a portion of the 303(c) joinder provision. After an involuntary petition is filed but before the case is dismissed or relief is ordered, any other creditor with a noncontingent, unsecured claim may join in the petition "with the same effect as if such joining creditor were a petitioning creditor" in the original petition. 11 U.S.C. 303(c); In re Kidwell, 158 B.R. 203, 210-13 (Bankr. E.D. Cal. 1993) (intervention is "of right" per Fed. R. Civ. P. 24(a)(1)); cf., Canute S.S. Co. v. Pittsburgh & WV Coal Co., 263 U.S. 244, 248-49 (1923) (Bankr. Act 59f).

just a quick seach indicates the following two senerios:


What Happens If You Fail To List All Creditors On Your Bankruptcy Filing?



"In one of the federal bankruptcy districts in which I practice, Judge Dana L. Rasure held in In re Cerrudo, 214 B.R. 500 (Bankr. N.D. Okl. 1997) that an unlisted debt that would otherwise be dischargeable is discharged without further action by the debtor if the case was a Chapter 7 in which no assets were distributed. In the Cerrudo case, Judge Rasure denied the debtor’s Motion to Reopen finding that unscheduled debts are not excepted from discharge by virtue of 11 USC Section 523(a)(3) unless the debt would be non-dischargeable under one of the intentional tort exceptions contained in Section 523(a)(2), (4), or (6) and that pursuant to Section 727(b), an unscheduled debt in a no-asset chapter 7 case is discharged unless the debt could have been found to be non-dischargeable under the intentional tort exceptions if the creditor had been given an opportunity to timely seek such relief."

then we have:

By David Hoyer Platinum Quality Author

When you file for bankruptcy, you are required to list all of the creditors to whom you owe money to. You are required to list their names, their contact information such as addresses and phone numbers, the amount that you owe, and other miscellaneous information about the debt.

The purpose of this is so that the court can notify all of these entities of your intent to file for bankruptcy and discharge your debt to them. Once your creditors receive this notification, they will then have the chance to contest the discharging of their debt if they so wish.

But, there are certain times, when you simply forget to list one or more creditors to whom you owe money. So what happens in these cases?

If you notified the creditor through other means, then as long as the debt is a dischargeable debt, it should have no effect on your bankruptcy filing. For example, if you owe $5,000 on a credit card that you haven't used in months and simply forgot to list it on the forms that you turned in to the court, you can send a letter to the credit card company yourself.

As long as you can prove that you have notified the creditor, your filing should be ok. Once the creditor is notified, the court takes the position that it is his responsibility to show up in court to protect his interests if that is his wish.

In other cases, it really doesn't matter if you notify the creditors or not. This is especially true in what lawyers call no-asset cases. In other words, if you have no assets which can be divided up to pay the creditors, it makes no difference whether a particular creditor received a notice. In either case the creditor would have received nothing. Knowing this, if a creditor shows up after the bankruptcy and tries to have the case reopened, he will be denied.

In other cases, however, where you intentionally left a creditors name off of the list, he may later show up in court and ask to have the case reopened because he was not notified. In this case, he may very well be successful and his debt will survive the bankruptcy. In other words, it will not be discharged, and you have to pay the debt.

If, however, you discover on your own that you left someone off your list, you can seek an amended discharge. If the debt is one that would have been discharged anyway, the court will consider it discharged.

Article Source: http://EzineArticles.com/5725430

[tobee43]

oh!!! and just an after thought...

IF you can prove you lent the monies and you can't pursue the situation.....it's a tax loss....on the positive side??