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BK Q?


Kristin36
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Recently, I have been receiving calls from an CA regarding 3 OC accounts. I totally forgot about this debt as no one had been trying to collect for over a year, thus, didn't put this debt on my BK!! Do I have any recourse other than the normal dispute processes? Charged off on MANY dates per account. I will be posting in another forum about that. TIA

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No, I mean maybe you edited and my answer was removed....

Anyway, Tell them that you filed a BK. DO NOT tell them they were not included.

Did you file on the OC? If so, they can't try to collect.

It is also assumed that in a no asset/no liability BK that even if a debt were forgotten it is included.

Maybe LadynRed can ad something....

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Again, I'm sorry for any problems in helping me. I do appreciate your help.

I've told the CA several times that I filed BK. They are actually very nice to deal with, they just don't listen. :roll: The last time they called, they said it was a 'courtsey' call before they turned it back over to the OC. As I stated previous, OC has several ''charge off' dates on CR, and I'll address those issues on the correct board. I know lots of people have had tons of problems with this particulat OC, and a few have prevailed. :D

No, I didn't file BK on the OC since I completely forgot about the darn thing.

No asset/no liability BK as far as I understand it. Was a normal 'cut & dry' case. I co-own (and reside in) a house, BUT it's in my ex-husbands name first & primarily, so, mortgage company didn't reaffirm or acknowledge the debt/BK since I filed 'individual' BK. I had read another post (posted 2002) on one of the boards where someone posted that

'it is also assumed that in a no asset/no liability BK that even if a debt were forgotten it is included.'

I'm hoping that is still true with all the new BK Law changes. This is actually the one answer that I am looking for. If I can find that out, Look out OC! :D

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I will. I hope she does. :D

Nope, haven't contacted him yet, but may have to. He's just so darn hard to get ahold of, and he makes me feel really stupid about 'trivial' things such as this. I know that he will yell at me for forgetting the debt. :roll:

They are always hard to get ahold of after the fact... :roll:

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8-) I think I found my answer!! I just hope that LadynRed verifies it!!!!

http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=14675

Her reply to the poster:

Ok, thanks for the clarification, helps a lot :)

There is some discussion on whether or not debts not listed are discharged or not, the courts have ruled both ways. In a CH 7 no-asset case, ALL unsecured debts pre-filing are considered discharged. There is enough case law to support the argument if you wish to use it to get these creditors to update or get rid of them.

Here are some excerpts from case law on this subject:

1) "In the present case, Debtor seeks to reopen and to amend the schedules to list five creditors in order to subject their debts to discharge. For the reasons just stated, reopening this case will not accord the Debtor the relief she seeks. As prepetition debts of the Debtor in this no-asset Chapter 7 case, the debts were discharged when the debtor received her discharge on August 5, 2002, unless the debt is one which is nondischargeable under any of the

subparagraphs of 5 523(a) other than 5 523(a)(3) (A). The limited information presented regarding the five unlisted creditors suggests that their debts are not ones which are nondischargeable.'

Therefore, it appears that the five debts have been discharged even though they were not scheduled by Debtor. In any event, reopening the case and scheduling the five debts at this time would have no effect on the status of the debts. Because reopening the case to amend the schedules would be a futile act which would not affect the

rights or liabilities of any party in interest, the motion to reopen should be denied."

http://www.ncmb.uscourts.gov/opinions/docs/serge.PDF

2) "The Ninth Circuit decided it makes no difference that such debts are not listed in the schedules or that no notice was given to the unlisted creditors because in no-asset Chapter 7 cases, proofs of claim are not filed with the court and no assets are available for liquidation. Because, according to the Ninth Circuit, nothing will be paid to creditors there is no harm to unlisted creditors in subjecting their claims to the discharge just as if they had been listed. Therefore, the Bankruptcy Court held that the creditor’s claim was discharged even though it had not been listed and, accordingly, the sums garnished from debtor’s wages after the discharge had to be returned."

http://www.idahocul.org/Leagueinfo/cameron/2001/sep01.htm

3) "Many courts would hold that debts will be discharged in a no-asset Chapter 7 case even if they are not listed. There are two key phrases in that answer that require more explanation.

* Many courts. The bankruptcy code is not at all clear on this subject. While the trend appears to be that the unlisted debts in no-asset cases are discharged without any further action, the code has been interpreted in differently in many courts. Some courts would allow you to reopen the case to add a debt. Others would say that the debt cannot be added and therefore is not discharged.

* No-asset. In many Chapter 7 cases, there are no non-exempt assets which the Trustee may sell for the benefit of the creditors. These are called "no-asset" cases.

Courts say that unlisted debt is discharged in no-asset cases have carefully read Section 523(a)(3)(A). This section excepts debt from discharge if they were not listed in time for the creditor to file a timely proof of claim. The proof of claim is used by the Trustee to determine the proportion to divide the debtor's assets between the creditors. In a no-asset case, there will be nothing to divide and no reason to file a proof of claim. As a result, in no-asset cases the bankruptcy notice instructs creditors that they are not to file a proof of claim. Courts taking this position reason that since it will never be too late to file a proof of claim, a debt is not excepted from discharge because it has not been listed. Cases in which the courts reach this conclusion include: In re Madaj, 149 F.3d 467 (6th Cir. 1998); Judd v. Wolfe, 78 F.3d 110 (3rd Cir. 1996); Stone v. Caplan, 10 F.3d 285, 289, n. 13 (5th Cir.1994); and In re Beezley, 994 F.2d 1433 (9th Cir.1993). [8-99]"

http://www.doney.net/faq_creditors.htm

So, basically what this says is even if the creditors were not listed, the debt was discharged. You could use this case law to dispute with the creditors who will bitch and moan that they were not notifed of the bK.

I'm so excited! All I want is to tell the OC to KMA! :lol:

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Another thought. Does this apply to only accounts dated BEFORE the filing or BEFORE the discharge? I would think BEFORE the filing, but want to know what the heck I am talking about when dealing with CA's/CRA's/Collection Lawyers. I'm sick of their forked tongues and trying to turn things around to their benefit and misleading people. xSteaminx

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Sorry, I was away for the holiday weekend.

Everything I posted in that other thread is definitely TRUE ! Tell them to "KMA" and get lost or you'll file a motion for contempt and request for fines and sanctions against them if they don't cease their illegal collection activities. Attempting to collect on a discharged debt is a big no-no and they know it.

Only debts incurred BEFORE you filed for BK are covered by the law.

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Thanks! Hope you had a good holiday weekend.

I'll tell 'em with pleasure! Actually, thinking on it for a while, seems like at least 2 companies have been trying to collect off and on for the last year or so. I have my CR and it's a BIG mess regarding this OC. Multiple listings and every catagory is different for all 3 CRA's. Translate that into about 9 different TL's, open, closed, BK....everything. Yep, 3 per CRA. Sheesh!! I have a PG account and hopefully I'm going about cleaning it up in the right manner.

Thanks again DocPC and LadyInRed!!!!

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Guess Who Called Again Today and pulled their normal "let the phone ring once and hang up". PITA CA. Sometimes they do that 3-4 times a day. I know, b/c their name comes up on caller ID. They called once so far today. The problem lies in the fact that they won't let me answer the phone. So much for being told the last time that 'this is a courtesy call before we turn the account back over to the OC" Grrrrrrrrrrr............. :evil:

Beat me up....I was pi$$ed (which is BAD b/c one doesn't stop and think before taking action) and I'm TRYING to do this nice. I don't WANT to sue for violations. I don't have the time or the money, but it seems like they are forcing my hand. Are they that stupid or just ignoring the BK b/c the OC wasn't specifically named?? After they called today and hung up after 1 ring, I called them back and left the following message with my name and ph #: that I filed almost 18 months ago, I have told them this repeatedly, they are in severe violation of the BK and to get it off my credit report and to stop calling unless it's to get my BK case # so they can get this straightened out. I told them that I DO NOT want to have to sue them for repeated violations, but they are making it difficult for me to ignore this any longer, and I will if this isn't taken care of ASAP. I PLEADED for them to straighten this out one last time. I was FIRM, but very nice, matter of factly and to the point.

I know....I did a stupid thing. :roll: Let the beatings commence. I deserve it.

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IF they respond to that message, it will probably be to either ask you to give them a copy of the creditor matrix, or to deny any knowledge of the bankruptcy and keep trying to collect - which would be a bad move on their part. Its easier if Verizon had been listed, but its still considered discharged in a no-asset CH 7 case.

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Yeah....IF. IF they don't respond and WHEN they call 1 more time, REGARDLESS of whether or not I get the opportunity to talk to them, NO MORE Miss Nice Guy.

Thanks for not beating me up for my stupidity btw.

Anyway, I'm not stupid enough to do THEIR work for them in sending them a copy of my BK. TU already tried that and I told them NO, IT'S A MATTER OF PUBLIC RECORD. DO YOUR OWN JOB, I'M NOT DOING IT FOR YOU. TIME IS TICKING.

the bottom line is that a Chapter 7 is a no asset bankruptcy and that reopening it to add a creditor to that bankruptcy is pointless, in the eyes of the court. So, even though your client was not included on the schedule, the debt is still considered discharged based on the fact that the debtor filed a "no asset" bankruptcy and any debt that was incurred prior to the date of filing is included.
That is straight from a 'Collector' of some sort on another board replying to another collector. Just tells me that there is NO reason for stupidity or blindness on the part of a GOOD CA. The GOOD ones KNOW and the stupid ones are the ones that give the good ones a bad name.
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CA didn't call me back, but sent me a "1st Collection" letter today. 8-) That's SO funny since they have been trying to collect for 6 months. :roll: I guess my next move would be what I posted above? Suggestion? * :NudgeNudge:

Edited to say: They just called me again....let it ring 2 times, and hung up when I answered. :evil: Harrassment twice this week.

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Alllllllllllllllllllllrighty then!! Just checked my EX disputes. They say that the OC verified the accounts and they will REMAIN as posted. That is 'charge off/in collection/bad debt/skip tracing'. They aren't going to make the status 'IIB'!!! :evil:

Wonder how they 'verified' those accounts? I really need advice on what to do here. I have yet to hear back from EQ and TU, but I have a strange feeling that those will 'remain' as reported as well. I'm not a person that will dispute things that aren't true in order to get them off my account or to 'bait' in order to go after some 'quick' cash, but the CRA's, CA and OC are REALLY pi$$ing me off now. My 18 month old Chap 7 No Asset BK is a matter of PUBLIC RECORD. That's ALL the proof I need to prove that I do NOT owe these debts any longer! I WANT SOME PEOPLE'S BUTTS!! I DO NOT want to screw this up. I want to nail everyone possible now AND do it right WITH NO CHANCE of screwup. I'm too mad to be thinking/knowing what my next step should be. TIA for help.

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Time for an intent to sue, very strongly worded. You might also add in that if they don't immediately cease and desist, you'll file a Motion for Contempt with the bankruptcy court. I can point you to a template for it that you could attach and say 'back off or I file this Motion'. I know a girl who did successfully get a CA in front of a BK judge on a Motion for Contempt - she won !

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Sounds good to me. Just for clarification, WHO am I sending it to? The CA? The CRA's? All 4? Just skipping all the other processes such as DV? Since this wasn't technically ON my BK, I was thinking that at least I should have a good paper trail, but maybe not? Again, wondering how and/or with whom they 'verified' those accounts? I believe that CA is a JDB (but don't know that for fact), so OC could be out of the picture (b/c of charge offs).

I know where the templates are, but the one(s) you have in mind would be good. As much as I hate to ask, I think need this spelled out for me. I do not want to lose, and now I want deletion for my frustration and their stupidity. I'm not sure if EX just didn't check my BK, or if they think it's still owed b/c I didn't list OC and they are ignorant of the cases you sighted. Who knows? I will search the templates and see what I can find and start putting something together until I hear from you again.

I do thank you SO very much for your time and advice. I'm told on this board, as well as 2 others that I frequent, that you are one of the best, and how highly respected you are, as well as your advice.

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UPDATE

Time for an intent to sue, very strongly worded. You might also add in that if they don't immediately cease and desist, you'll file a Motion for Contempt with the bankruptcy court.

:NudgeNudge: Just got a return call from my lawyer. Based on the decision of the 9th Circuit court, he told me to send OC, CA letters as suggested above. Today, OC Internal Collections Dept called! xSteaminx Now, not only am I getting harrassing hang-up calls from CA, I'm getting them from OC, AND CA sent a '1st Notice' dunning letter. :roll: Yeah, ok, and this is the 3rd '1st' letter. sheesh! Lawyer said if they don't c&d, to let him know and we will sue them for violations, sanctions, his fees and court costs. :lol: Gotta LOVE money hungry lawyers. :lol: Yep, he said I can tell them to :thefinger: AND :moon::woohoo:

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Time for an intent to sue, very strongly worded. You might also add in that if they don't immediately cease and desist, you'll file a Motion for Contempt with the bankruptcy court. I can point you to a template for it that you could attach and say 'back off or I file this Motion'.

LadynRed.....can you please point me in the direction of that template? THANKS!!!! :)

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Thanks!!!!!!!!! Yeah, he made me feel much better, though he did say that even though that ruling hasn't been tested here to his knowledge, it should fly with no problem. :D

Thanks for your help.Please keep an eye on this thread, as I will post my letter for your opinion/approval before I send it. :wink:

EDITED TO SAY:

HELP!!! I have searched the forums and web all day long, and can't find a sample letter for my specific purpose. :cry:

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