Midland Funding-Posting collections 8 months after BK completed

[azusa313]

Hello,

 

Midland Funding just posted degratory information on Experian for an account that was included in Bk.  The BK was completed 8 months ago.  What should I do?

[WhoCares1000]

If they show the balance as 0 and the statement that the debt was included in the BK, there is not much you can do. They are simply reporting what happened. Now if the listing shows a balance and/or does not state that it was included in the BK and hence is a current debt owed, you might have recourse through the BK court.

[azusa313]

Report date was 6/24/2013

unpaid balance of 4313

Business Name is Midland Funding

Activity Type is Grid Code G (collections)

 

What should be my next steps?

[admin]

Report date was 6/24/2013

unpaid balance of 4313

Business Name is Midland Funding

Activity Type is Grid Code G (collections)

 

What should be my next steps?

You should dispute with the credit bureaus as "not mine" first to see if you can get it completely removed.  If they don't remove it, they might update it to "included in BK".  If neither occurs, time to send Midland a letter telling them the account was included in bankruptcy and they need to completely remove the account from your credit report or they will be in violation of the FDCPA "misrepresenting the status of the account".  

[BTO429]

You need to go back to the atty that handled you bk,,,,let him handle the law suit for it.

[WhoCares1000]

If they are not reporting this properly, then yes, go back to the attorney who handled the BK and let them help you deal with this. It sounds like they are not reporting properly in hopes of at some point, you needing credit will be so important that you just pay them even though you do not owe them. Even if I were an attorney though, I would give them the benefit of the doubt and send a letter telling them to fix this or we will be having a date in Federal Court.

Note that the BK judges have gotten wise to this tactic and are not thrilled about it. They will not want this issue in front of a BK judge.

[BTO429]

In Re Mendiola holds that if a creditor was inadvertently omitted in a no-asset case, the debt is still discharged and the discharge injunction applies to that creditor.

 

You need to find out exactly when the Midland obtained the account and if they purchased it.....it is against the bk codes to sell a discharged debt to a collection agency. Creditors who violate the bankruptcy discharge are in contempt of court, and can be liable for damages as well as attorney fees. Additionally, creditors who violate the discharge may be subject to statutory fines.

 

If Midland bought the account after the discharge you have a suit against the OC. You need to send Midland an In Re Mendiola statement.

 

In Re Mendiola is case precedent that most courts look at when dealing with bk

 

Section 727( of the Bankruptcy Code states in part

, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing.] "The operative word is 'all'. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled." In re Mendiola.

 

n a case without assets to distribute the right to file a proof of claim is meaningless and worthless.In re Mendiola.

 

"Thus, in the typical no asset Chapter 7 case, where the no dividend statement of [rule] 2002(e) is utilized by the clerk and no claims bar date set, the prepetition dischargeable claim of an omitted creditor, being otherwise unaffected by § 523, remains discharged, In RE Mendiola.

[azusa313]

Thanks Serg, 

 

Do you think I should send a dispute to the bureau as well as something to Midland?  How should I proceed in finding out when Midland obtained the account?  Thanks in advance

[BTO429]

Send them a debt validation letter and in the letter ask them when they obtained the debt. If they don't answer that question there are legal ways to find out. You may or may not have a suit against Midland, they may not know of the bk. Your suit would be with the OC, because the debt was discharged and they cannot sell a discharged debt. This could be handle pro se because the evidence is clear. It was discharged, they sold it, and they have no real defense.

 

Once you inform Midland of the bk they have to investigate it, if they try to claim it was not discharged you can include them in your suit or file a separate claim against them.

[admin]

Thanks Serg, 

 

Do you think I should send a dispute to the bureau as well as something to Midland?  How should I proceed in finding out when Midland obtained the account?  Thanks in advance

@azusa313 - I would send a letter to the credit bureaus first.  If it's removed, then you're done.  If not, then you send a letter to Midland saying the original account was included in a BK and they shouldn't be collecting or reporting this account. Why do the credit bureaus first?  You take the chance that Midland will screw up either intentionally or not and report the account on your report as "included in BK".  It's just one extra black mark that shouldn't be there.  

[azusa313]

Thanks for the reply.  I figured the credit bureaus first and have sent out the DV letter on Saturday.  I will update the case when I hear back.  Thanks again. 

[admin]

@azusa313 - you didn't send out a DV to the credit bureaus, did you?