Legal Question in Credit and Debt Law in California

I had a chapter 7 bankruptcy discharged in 2008. I am now being sued for a debt owed by written contract back in 2004. Isn't this debt also discharged back in 2008 even though it was not listed on the creditors list. (I didn't know it was owed at the time) and also isn't the statute of limitations over for trying to sue me for it? Thank you kindly.

Asked on 2/27/12, 12:03 pm

4 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Yes and yes. You might have a good lawsuit for unfair debt collection practices. Contact me for more info. Watch out for legal time limits.

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Answered on 2/27/12, 12:07 pm

Larry Rothman Larry Rothman & Associates

Your case against this company depends on whether you have been making payments as the statute of limitations depends on the date of last payment. Even if a debt is not named in a bankruptcy, if it is a normally dischargable debt, it still is dischargable even if it is not named.

We would have to review the lawsuit and any correspondence to see if you have a case.

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Answered on 2/27/12, 3:45 pm
Timothy McCormick Libris Solutions - Dispute Resolution Services

As with so many things in the law the simple answer is usually the wrong one. First off, you have no case against the creditor based on the bankruptcy discharge until you have given them legal notice of the bankruptcy and discharge. Second, the basic rule is that debts not scheduled in the bankruptcy filings and that the creditor did not have notice of in time to file a proof of claim are not discharged. However, IF the case was a no-asset case in which NO payments were made to creditors, OR there was payments to creditors BUT this creditor was not of a class of creditors who would have received anything, AND the creditor was unsecured then most Circuits have declared a "no harm no foul" rule and have held the debt discharged anyway. So without reviewing all the details of the situation there is no way to say that the debt was discharged or not. As for the statute of limitations, the previous answers are correct, that it depends on when the last transactions on the account were. The creditor has four years from the breach of the contract, or four years from the last activity on a written account to file suit.

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Answered on 2/28/12, 11:58 am

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