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I am being sued by Cach, LLC. I filed bankruptcy 3 1/2 years ago. If all debts were discharged, can they sue legally?

Clermont, FL |

My Wife received a letter from an Orlando Law Firm stating: "Through review of online court records in the county you live, we have learned of a current lawsuit filed". I checked our county's online records & there had indeed been a small claims filed only the day b4. My Wife filed bankruptcy 3 1/2 years ago & any debts must be considered discharged I assume. If this is the case, is it not illegal for CACH LLC to file suit? If it is illegal for them to sue after discharge of debt, can we file counter-suit for collection harassment or whatever?

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Attorney answers 3

Posted

The options you mention are available IF you filed bankruptcy with your wife. If she filed by herself and you were jointly liable for the debt, then you still owe it and the lawsuit would be allowed.

Posted

If the lawsuit is against your wife and the debt was incurred prior to the bankruptcy and the debt was listed in her petition, then you should fax to creditor's counsel copy of discharge order. If they don't immediately dismiss the case, remove all negative information from credit report, then you should file an answer to the lawsuit with copy of discharge order stating as defense that this debt was discharged and case should be dismissed. You can also re-open the BK case and file motion for sanctions because creditor has violated discharge order.

If the debt was incurred prior to bk filing but was not included in the BK, then creditor did not receive notice. If will still be discharged if the BK case was a no-asset chapter 7 case. Then do same as above except can't sanction creditor since they had no notice.

If debt was incurred after filing of BK, then it was not part of BK case and was not discharged. You can obtain verification of debt (invoices etc) through creditor's counsel if not already attached to the complaint filed with the court.

If lawsuit is filed against you, not your wife, and you were not a party to the BK petition, and you are liable for the debt then creditor can sue you and you cannot claim wife's discharge as a defense.

Asker

Posted

According to online records, the suit was filed against my Wife 2 days ago. She has no idea what the debt is about because she listed all her debts allowable when she filed Chapter 13 in 2009. She was in the process of Chapter 13 when we met & married. It is my understanding that any debts that I incurred prior to our marrying cannot be considered her debt. Your first paragraph pretty much addresses our issue. Since this case is only 2 days old, she's not been process served. Should we ignore the doorbell until we know for certain that this is a case of Cach LLC going after a discharged debt? The online record is ambiguous at best & doesn't list the debt. If she is served, will the process list the debt they are seeking so she can confirm it was listed in the initial BK petition?

Kathryn Ursula Tokarska

Kathryn Ursula Tokarska

Posted

Don't try to evade the service. Since you know about the lawsuit (we're discussing it right now) your knowledge is sufficient and formal service is not required to move the case forward. The summons should include additional information about the debt, when incurred, who the original creditor is, for what, how much) Hopefully that will clarify what this debt is about and whether it was included in the BK.

Asker

Posted

Thank You, you've been extremely helpful. However, I do have one last question for now. I'm a retired LEO & Court Clerk (civil & criminal) and over the years filed petitions & motions pro se since having a small fundamental understanding of minor matters. My question is that you alluded that my knowledge alone is sufficient to move the case w/o service of process. I've never known that a judgment could be issued w/o same. Can process be served via USPS? I only know about the suit by extrapolating from the obvious template letter mailed from Cach LLC under the guise of a lawfirm and checking online court records. The court doesn't know I know of this suit. It's not my intention to be mischievous, I'm just very interested in knowing how a judgement can possibly be granted w/o service of process. Again, Thank You for your time Ms. Tokarska

Robert A. Stumpf

Robert A. Stumpf

Posted

In some places, it is possible to serve via US Mail, NY being one of them.

Posted

The wording of the letter sounds strange. Why would a law firm have to learn of a suit filed? Are they offering to perhaps represent you? Maybe they are suing you themselves. ?

If the discharge was obtained, you could either reopen your bankruptcy case, or use it as a defense (with a counterclaim for collection violation in state court.

This is AVVO, a place for users to obtain general legal information to general legal questions. I am glad to help you in any way I can, within those limits. I wish to make clear I am only communicating with you for the sole purpose of exchanging such general information, and nothing more. It is not legal advice, which I can not provide because among other reasons I know few of the necessary details of your situation. I do not purport to represent you in any way, shape or form. Of course, if you would like to seek out my services, and if you are a NY resident, I will probably not put up very much resistance but representation would still necessitate a signed retainer agreement between yourself and I. Thank you.