I cosigned on a loan with my ex-wife in 2007. We are now divorced. I filed bankruptcy and this debt was discharged in 2010. I do not know if my ex ever filed her bankruptcy. I was just served with a lawsuit on a debt that was fully discharged. Can I sue them?
Family Law Attorney
All you need to do is attach a copy of your Discharge notice to the Summons, and mail copies to the creditor AND to the Court. Double check with the court in about a month to be sure you have been dismissed from the suit. If that does not work, call a consumer debt attorney in your area.
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There are two answers to your question, a THEORETICAL answer and a PRACTICAL answer.
Yes, you can sue anyone for anything. Yes, they probably violated the automatic stay and permanent injunction by suing you.
It is likely an honest error and the Courts expect you to act reasonably by giving the plaintiff a chance to correct its error. So, get a copy of your NOTICE OF DISCHARGE, a copy of SCHEDULE F (circle the debt they are suing on), and a copy of the SUMMONS just served on you and scan/email or fax or snail mail the three documents to the plaintiff's attorney with a note (including your contact info) requesting that they dismiss you from the lawsuit because the debt was discharged in bankruptcy. KEEP a copy of what you sent. This will be an exhibit in your lawsuit. They might not dismiss you right away - but that's okay as long as they do so eventually.
If they do ANYTHING else against YOU in the lawsuit (i.e., file a default or request a judgment or serve you with discovery) THEN you need a bankruptcy attorney to file a motion for sanctions in the bankruptcy court.
Since you let them know about their error and they intentionally went forward anyway, they are in a LOT MORE TROUBLE now than if you had filed your motion without even giving them a chance to fix the problem.
If you need further clarity, please email me at MICHAEL@MIRELAND.US Answers to questions are for general information purposes only and do not establish an attorney-client relationship. This is not legal advice, simply information. You SHOULD NOT act on this information without consulting a competent bankruptcy attorney in your area and providing ALL relevant information.
Yes, probably. Attorneys have a duty to conduct a reasonable investigation before filing suit. Sync they haven't I would allege they violated the FDCPA. I have an attorney I work with in CA if you want more information.
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Chapter 7 Bankruptcy Attorney
Attorney Michael Ireland has offered a fairly complete/ thorough analysis of your situation and steps forward. Question-asker, you would be wise to follow the steps outlined to a "T"...and once you have given notice of your discharge to the lawyer for plaintiff (and separate notice to the plaintiff too, perhaps), be prepared to contact a bankruptcy lawyer to help you protect your discharge injunction.
Best of luck!
Michael Salanick, Esq.
NOTE: we can be reached at www.salanicklaw.com (310) 590-4575. This answer is made available by the lawyer for educational purposes only. By using or participating in this site you understand that there is no attorney client privilege between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed professional attorney with whom you have established an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question.
Real Estate Attorney
If a creditor continues to prosecute a claim which has been discharged, the debtor can file a motion for contempt of the bankruptcy discharge injunction in the bankruptcy court and seek monetary sanctions.