Ask the lawyer

Rodney Caldwell

I filed a Chapter 7 bankruptcy, but I forgot to put a debt in my bankruptcy petition, and that particular creditor has started back with the phone calls. What can I do?

If this creditor keeps calling you about a debt after you have filed bankruptcy, then you may be able to sue the debtor. This is true even if you failed to list the creditor on your Chapter 7 bankruptcy. You may only bring a lawsuit if the creditor had notice of the bankruptcy petition and your bankruptcy case is a “no asset” case.

Whenever an individual files for bankruptcy, they need to list all of the creditors that they owe money to on their bankruptcy petition. Creditors are given notice of the bankruptcy when they are listed on the bankruptcy petition. The Bankruptcy Court will send notice out to all of the creditors who are listed on the petition. If an address for a particular creditor is incorrect, the Court will notify the debtor’s attorney that the creditor did not receive notice, and the debtor can get a better address for their attorney to file with the Court so that the creditor can receive notice.

Once a bankruptcy petition is filed, an automatic stay in put in place which prevents creditors from collecting on the debts owed to them by the debtor. If a creditor tries to collect on a debt once the case has been filed and they have notice of the filing, the creditor can be sued for a violation of the automatic stay. Once a case has been discharged, and the debt has been discharged, the creditor can never try to collect on the debt owed to them by the debtor or the creditor will be in violation of the bankruptcy discharge order. If the case is a “no asset” case, a case in which there were no assets available to take care of any outstanding debts at the time of the bankruptcy, and the creditor was not listed, the debtor can simply have their attorney send the creditor notice of the bankruptcy even after the case has been discharged, and the creditor is precluded from its efforts to collect on the debt. If the bankruptcy is an “asset” case, one in which there were assets to liquidate the debts, the creditor may still maintain a claim. You should contact an attorney to determine the type of case you filed and your ability to file a suit against the creditor. If the creditor continues to collect on the debt, the debtor has the right to ask their counsel to sue the creditor.

The article above is for informational purposes only. The article is not legal advice. You should consult with a lawyer for legal advice and should not rely on the article for the same. For comments, contact Rodney Caldwell at Rodney@flexerlaw.com or call 615.255.2893.