Shortly after my Chapter 7 bankruptcy was discharged I received several calls from creditors stating I still owed them money and they were not included in my bankruptcy. I provided all three credit reports plus a couple of creditors who were not listed to my attorney, but from what the attorney's office is saying is they only included creditors from the bureau report they pulled. Plus one of the unsecured creditors has a judgment against me and now despite filing Chapter 7 I'm still going to have my wages garnished by this unsecured creditor because my attorney didn't include it. Can I sue my attorney for negligence?
If you filed Chapter 7, just about anywhere the country (the main exception being the First Circuit in New England) and there were no assets distributed to creditors, your debts are probably wiped, period. It doesn't even matter if they are listed or not. I would if I were you send them a copy of the bankruptcy discharge, and if they insist on continuing to come after you, have your bankruptcy attorney find out whether they are violating the discharge injunction.
For you to successfully sue your attorney, you'd probably have to have some sort of damage, and I am not sure what it is in this case. If you were discharged, he did the job he was supposed to do.
You were supposed to review your bankruptcy petition before it was filed and you signed your bankruptcy petition saying, under oath, that it was truthful & complete. You probably testified to this when you attended your 341 creditor's meeting as well.
So it was your responsibility, not your attorney's, to make sure that all your creditors were listed on your bankruptcy & to ask that any corrections be made.
There are things your bankruptcy attorney can do to stop the creditors that are pressing you for payment and from garnishing your wages, but if you decide your attorney is to blame for not including all your creditors, you are just shooting yourself in the foot.
Hope this perspective helps!
Review schedules D, E, & F of your petition. These schedules contain all of the creditors that received notice of your bankruptcy. Note that some of your creditors may have transferred collections to a collection agency shortly before your bankruptcy was filed and therefore, the collectors did not receive direct notice of the bankruptcy. If the original creditor was listed in the schedules and you are getting calls from a collection agency on the debt, you have a claim under the Fair Debt Collection Practices Act, as they are attempting to collect a debt you no longer owe.
If you are getting calls from a creditor that was not included on the schedules, case law in most jurisdictions provides that the debt is discharged anyway (unless you had to turnover assets to your creditors during your case). If that is the case, simply send them a copy of your order for discharge and inform them that if they continue collections that you intend to sue.
If they were not included and you did have to turnover some assets to your creditors, then the creditors that are calling you were not included in your case. However, if your schedules were incomplete when filed, you bear the responsibility for ensuring that the information provided to the court was truthful and accurate. Instead of suing your attorney, see if s/he can assist you in reopening the case (if closed) and adding the creditor(s).
If your case was recent and not yet closed (different from receiving discharge), your attorney may need to do nothing more than amend the creditor matrix by adding these new creditors, which is relatively simple.
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