I am supposed to make a payment this week to a creditor but I am going to be filing for BK next month early. I am trying to avoid having the collection agency filing against me in small claims court. I thought if I informed him that I am filing for BK next month, this might keep him from wasting his time and money and help me avoid a judgment. However, I don't know if there is a problem with this or if it could be bad for me legally. Please advise.
It is impossible to predict what, if any reaction the collection agency will have to the news you are filing bankruptcy. For some, it will make no difference whatsoever. Others may speed up collection efforts. Many people say their are going to file bankruptcy and don't, so the collection agencies typically will not give any credence to these types of statements.
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It has no legal implications to say that you are going to file for bankruptcy. In fact, many debt collectors will leave you alone if you tell them that you have retained bankruptcy counsel and plan on filing.
Chapter 7 Bankruptcy Attorney
It is my experienced that when a debt collector is told that you intend to file bankruptcy, you cannot get that debt collector to give you any information that would allow you to include this debt in your bankruptcy - such as the name of the principal creditor, the amount owed, the account number, or even the address of the collector. Since is information you have to have to include the debt properly in the bankruptcy, and since the debt collector is not likely to leave you alone based on your representation that you MIGHT file bankruptcy, why say something this stupid? Hope this perspective helps!
Normally, when a person hires my firm to file a bankruptcy, I tell them to tell debt collectors that they have hired the Law Firm of Dallas Jolley to prepare and file a bankruptcy for them, and that they instruct the creditor/debt collector to call my office to confirm our representation. This normally stops the collection action. But of course, until you file, you do not have the protection of the Automatic Stay to stop collection action. So you should get with it and file. We are glad to field calls from creditors who are after you.
All the other responses to your question are good responses.
There are two schools of thought: (1) that telling the debt collector will stave off a lawsuit (works some of the time); and (2) not telling them will gain a slight advantage for you when it comes to information.
When faced with a debt collector bugging a client, the first line of defense is to immediately deny that the debt is owed and demand that the debt collector make the necessary disclosures under the Fair Debt Collection Practices Act. I do this because many times the original creditor has sold the debt and it has been palmed off between different collectors until a zombie debt-buyer gets a hold of it. Many of these debt collectors have paid pennies on the dollar to obtain the debt, and often they have no real paperwork to back up the claim.
Filing suit for some of them is a waste of time and money if they know you will defend. They will not bother because proving the debt requires someone from the original creditor to come and testify as to the truth and accuracy of the original creditor's actual business records.
So the second, third, fourth and zombie tiers are often clueless as to whether you repaid the debt to anyone else quite frankly. They buy these accounts by the thousands in one sitting and receive a general assignment without recourse against the assignor.
Now I am explaining this to you so you can understand the thought process behind telling them vs. not telling them.
Most debt collectors will cease all activity if they think you have retained a lawyer, especially if you refer all future inquiries to your bankruptcy lawyer. They do that because federal law requires them to. They will check with your attorney periodically to find out if and when you filed, if they did not receive notice of the bankruptcy in the mail.
Some debt collectors don't care. They will do what they do until someone like a judge, stops them, sanctions them or holds them in contempt.
When you file through a lawyer, the lawyer may ask you for a copy of your most recent credit report which will list all of your known creditors. You should save every dunning letter, bill and everything else so that your creditors can be properly listed in Schedules D, E and F.
As far as trying to save a bill collector time and money, that position though noble is laughable. I'm sorry but most people would say you're stalling for time. And that's fine. You didn't have it 15 minutes ago and barring a big lottery win you won't have it 15 minutes from now.
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To echo the other responses, often if you let them know you are represented by an attorney in a bankruptcy action, they will not pursue the debt and will probably cease contacting you at all. My only word of caution is if this particular creditor is a bank where you also keep assets (for example, you have a checking and savings at Chase and you are intending to default on a payment on your Chase credit card), your accounts may be vulnerable to a pre-filing seizure. Often the fine print of a credit card agreement allows the bank to reach into your accounts with that bank upon default. I personally have only seen Credit Unions do this but I recommend to my clients that they move their accounts if there is going to be a period of time between default and filing for bankruptcy.
Please note that this AVVO answer is for information only. It does not constitute legal advice. This information does not constitute, nor does it create, an attorney-client relationship between the law office of Luce, Kenney & Associates, LLC, or Brittany Cline, Esq. and any receiver.
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