Legal Question in Bankruptcy in California

I loaned a friend money about 5 years ago - 20,000. She signed a sort of promissary note. Paid me one time. I never said anything more about it and neither did she. I found out they are most likely filing BK and need to know where I stand. I think they are adding me on the list of creditors. can I sue? am I out of luck because of the SOL?

Asked on 9/05/09, 12:10 pm

2 Answers from Attorneys

Vincent Gorski The Gorski Firm, APC

You did not indicate what chapter of bankruptcy your friend is filing. Also, I assume that you do not have any collateral (i.e., you didn't take a lien on some property).

Generally speaking, your friend is required under the bankruptcy code to include ALL debts. Since she still owes you money, she is required to include you in the list of creditors. Once she files bankruptcy, the automatic stay prevents you from taking efforts to collect on the money. You will want to file a proof of claim in her bankruptcy so that you can share in any distribution, if any to unsecured creditors.

Regarding your question about "suing," if there was some type of fraud you could commence a suit for a determination that her debt to you is non-dischargeable in the bankruptcy. Otherwise, there really is nothing else to "sue" on.

I wish you the best of luck in finding a resolution to this matter.

Vincent A. Gorski, Esq.

Disclaimer: The materials provided herein are for informational purposes and neither constitute legal advice nor should they be relied upon as legal advice. Every situation is fact sensitive, and it is impossible to evaluate a legal problem without a comprehensive consultation and a review of all facts and documents at issue. This answer does not create an attorney-client relationship. I am a California Bankruptcy lawyer. You should consult with a bankruptcy attorney to obtain advice specific to the particular facts of your case.

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Answered on 9/05/09, 12:30 pm
Robert F. Cohen Law Office of Robert F. Cohen

A four-year statute of limitation would run (expire) four years after the last payment.

A person who files bankruptcy is required to list all of her debts as well as all of her assets. If it's a chapter 7, generally all debts are discharged, except those procured through fraud, those for child support, damages caused while driving under the influence, intentional harm to others, etc. Thus, if your friend were to file a chapter 7, and there had been none of these exceptions, you'd be out of luck.

If she were to file a chapter 13, then you would file a proof of claim, in the hope that when your friend prepares a repayment plan, you might get something back. Chapter 13 plans may include repayment to creditors over three or five years of pennies on the dollar owed.

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Answered on 9/05/09, 12:44 pm

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