Served lawsuit while in Chapter 13

[bclinton73]

Over the weekend I was served a lawsuit for a credit card that I included in my Chapter 13 filed in 2008. My Chapter 13 is current and I am making payments. The credit card was included in my Chapter 13 but the original creditor is going under a different name than listed in my BK and the lawsuit is actually from a debt collector type company.

I have called my attorney but it has been 2 days and have not recieved a call back. I am not certain what should be done here. I will continue to call my attorney but the lawsuit requires a response in 10 days. What should I expect my attorney to do in this instance? My assumption was that these guys could not sue me if I am currently in a Chapter 13 and they were included.

Thanks!

[Lissy]

They can't, it's a violation of the automatic stay. It doesn't matter if it's a collection agency or any other third party, as long as the debt itself was included in your BK, you're fine. You may want to ask your atty if it would be worth going after them for the violation. Also, I've never heard of only having 10 days to respond to a lawsuit. I thought it was supposed to be 30? Are you sure they actually filed a suit?

[LadyInTheRed]

I would send a copy of your Bankruptcy Notice to the creditor and its attorney. Send it by certified mail, return receipt. That may take care of things, but don't assume it will.

If you haven't already, make sure in your messages to your attorney that you make it clear you were served with a lawsuit by one of your creditors on April __ and that you have 10 days to respond. If you leave a message with one of his staff members, ask when you should expect a call back and call again if you don't receive a return call by then.

[LadyInTheRed]

They can't, it's a violation of the automatic stay. It doesn't matter if it's a collection agency or any other third party, as long as the debt itself was included in your BK, you're fine.

It's true that it's a violation of the automatic stay, but that won't stop the creditor from getting a default judgement if no action is taken to get the creditor to dismiss the suit or to file a response to let the court know about the BK. Better to take action now then deal with additional paperwork later to get a judgement vacated. It's possible the creditor bought the debt and doesn't realize the OP filed BK. They will hopefully do the right thing as soon as they recieve notice of the BK.

Also, I've never heard of only having 10 days to respond to a lawsuit. I thought it was supposed to be 30? Are you sure they actually filed a suit?

It vary's by state. I did a quick Google search and found that in Texas, depending on what court the suit is filed in, the defendent has either 10 or 20 days to respond.

[bclinton73]

Thanks for your responses. Yes, I'm sure they filed. It shows up on the county courthouse website as filed and the suit actually says the Monday next following the expiration of 10 days from when I was served so I guess I actually have closer to 14 days. Either way I'm going to give my attorney another call this afternoon. Here's hoping I get a call back soon.

[kornellred]

Please continue to post with regard to this situation. The creditor proposing this lawsuit has got to be terribly misinformed. You could go to the hearing and just laugh at them, but you would be risking a contempt charge.

[bclinton73]

I will continue to post. I can only assume the debt was bought off and the current creditor is misinformed, but like LadyInTheRed says above I want to deal with this the correct way. If a response needs to be filed or a letter sent to the creditor's attorney then I want to do it right. My attorney has been out of the office so I am supposed to have a phone call by noon tomorrow. I will wait to take any action until I hear from him... or don't hear from him...

[jcj112562]

For what it's worth, most BK attorneys are not going to represent you in other matters without being compensated for their time. In this case, take a copy of the filing notice that has your BK case number on it, along with a copy of the matrix of creditors that shows that the subject debt of the suit is included in the BK, and take a cheery walk to the court clerk's office where the suit is filed, and file said papers with the clerk/court, along with sending a courtesy copy of both (RMRRR) to the plaintiff's attorney. That should stop said suit in it's tracks. In any case, your attorney will need to be kept abreast of this. Best of luck.

John

[bclinton73]

Quick update on this issue. John was correct in that my attorney wanted $600 to help out in this circumstance. So I drafted a Suggestion of Bankruptcy letter myself, sent it along with my offical Bankruptcy Notice to the court clerk and the attorney which was suing me. I checked the status of the case online today and saw that there was a Motion/Order for Non Suit and it was dismissed. A relief to know it was handled fairly painlessly and without me having to spend money for an attorney.