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FDCPA lawsuit in a chapter 13 bankruptcy case

Fort Lauderdale, FL |

A collection company routinely files expired [statute of limitations] claims in chapter 13 bankruptcies. Can the Debtor file a FDCPA adversary action in his chapter 13 bankruptcy.

Attorney Answers 4

Posted

In Bankruptcy Court you are limited to objecting to the proof of claim.

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Shaye Larkin

Shaye Larkin

Posted

Great response by my colleague!

Posted

If you believe you have a claim before filing you list in schedules b and c. If it is your belief that the proof of claim is some how wrong you file objection to it... then look at language on that proof of claim if it is untrue. Now a statute of limitations does n it mean you do not owe the debt; it is a defense to a claim raised and debt otherwise owed . So don t believe that gives rise to any claim in and of itself.!

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Shaye Larkin

Shaye Larkin

Posted

Great response by my colleague!

Sandra A Kuhn Esq.

Sandra A Kuhn Esq.

Posted

Great answer!

Posted

I would have to agree with my colleagues. The creditor can file a claim if they think they are owed money from you. You must then object to the claim. If you have an attorney, then you should speak to him/her about this issue. If you don't have an attorney and think that the claim should not be paid, then you should speak to an attorney about jumping on to your case. As far as the FDCPA, I do not think that this action would arise in a cause of action. However, you should take the specific facts of your case to an attorney that handles FDCPA matters and have a consult with them. Some may offer free consultations. Good luck!

The asking of and answering general questions does not establish an attorney-client relationship. Please consult with an actual attorney in your local area before deciding on a course of action.

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Shaye Larkin

Shaye Larkin

Posted

Great response by my colleague!

Sandra A Kuhn Esq.

Sandra A Kuhn Esq.

Posted

Great answer!

Posted

When I work on preparation of a Ch. 7 case, and its an unsecured debt in a no-asset 7 its usually unnecessary to dispute any alleged claims. Because the creditor is neither required to file a POC or if the creditor does, the POC goes nowhere and if there are assets the Trustee can object.

In a Ch. 13 its primarily your responsibility to list the claim in your Schedule F if it is unsecured or D if its secured.

Then there are some boxes that you check: []contingent [] unliquidated []disputed. Check em all.

Then when the creditor files the POC in your Ch. 13 you object to it, and if the court sets the objection down you have to prove that its barred. You do that by establishing when the statute of limitations began to run and the date of filing. If its been too long, you win. If its not been too long, you have to pay it back in your plan.

If you don't check those little boxes, the creditor is going to say you affirmed the debt under oath and waived the SOL. Bad. Very bad. Because you didn't check those boxes. Simple as that actually.

Of course, some creditors don't look at your petition because they avalanche the court with stale POC's all the time. So you might get away with it anyway.

This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.

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Shaye Larkin

Shaye Larkin

Posted

Great response by my colleague!

Sandra A Kuhn Esq.

Sandra A Kuhn Esq.

Posted

Great answer!

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