BK13 dismissal SOL question

Need lawyers to answer.

 

In my opinon, the answer should be the same as in any other situation.

Most folks seem to want to subscribe to the legal theory that if something is not expressly forbidden by the law then it is not regulated by the law and the citizen or company can do as they please. This is a valid legal concept except where a law specifies what must occur and/or when which is the case with SOL as it deals with reporting of charge-offs which is specifically covered in 15 USC 1681 &#167 605.

However, that appears to me to be additionally addressed in 15 USC 1681 &#167 605(1) where it modifies the normal requiirements because of the addition of the bankruptcy clause which seems to me to say that it can be reported for 10 years after bankruptcy.

Now then, I must admit that I am as green as a gourd and as dumb as a fence post when it comes to bankruptcy, and I am most assuredly no lawyer, so maybe you ought to CLICK HERE and read it for yourself to see what you think.

 

bk falls under federal law, "tolling" the SOL falls under state statutes, to the best of my understanding. The SOL does not apply, is "suspended" for certain lengths of time under certain conditions.

 

Regardless of what happens with the bankruptcy, the SOL will NOT change or be suspended for the original accounts. The SOL varies from state to state and, therefore, is covered by state law. Bankrputcy is a federal issue.

File for Chapter 13. The SOL and CRA reporting clocks started ticking before this (original delinquency date or charge-off date, whichever is later). If the 13 is dismissed (not discharged, but dismissed) one day before the SOL on, say, a car loan, expires, they have one day to obtain a judgement, not the original X years (depending upon state).

Bad part is, you get saddled with the 7 years (from date of filing) for the CH13, even though it was dismissed (no relief) and, if soon enough, the creditors still have plenty of time to obtain a judgement.

 

jshimmer:

Your post really makes you sound authoritative, i.e. sound like you really know what your are talking about.

It sounds like you may be an attorney or have had some very valid personal experience or have done your research.

Please tell us which it is.

 

My grandfather used to ask my dad what good he thought it would do him to have a million dollars if he became unable to use the bathroom. Needless to say, Old grandad hasn't said anything at all for the last 40 years or more.
(LOL)

 

Married in '89. Divorced in '94. Wife had filed for Chapter 13 in '93, before the divorced was final (we were separated). I was left holding the bag for ALL debt (house, car, credit cards, loans) PLUS paying 50% of my check in child support.

I could only hold on for so long, then was forced to file for relief under CH 13 myself in 11/1993.

1 year into it, I realized the only secured property was the car (they repo'd the house - a mobile home), so I had the Chapter 13 dismissed. Unfortunately, I learned (much later) the hard way that the 13 would remain on my credit history -- as far as credit reporting is concerned, it doesn't matter whether it was dismissed, discharged, etc.. -- it was FILED and that's what counted.

My BK attorney never spent the time to explain all the repercussions of filing BK -- never once did he tell me that I might have other options.

I spent several years trying to 'make good', with creditors, but due to the large child support obligations ($1300/mo), I just couldn't do it.

I spent years avoiding the phone, tossing mail out and living by cash only. By this time (1997), only four or five creditors were still on the bandwagon, actively trying to collect and occasionally garnish my wages. Since I was paying so much child support, they never saw a dime of my paycheck (support was over 25% of my income, the max garnishable amount in my state, and that came AFTER any previously existing garnishment orders, such as a child support order).

I changed jobs a couple times during these 5 or so years, and finally got a great opportunity to make a very good salary. Due to other changes, my child support all but went away. Low and behold, one of the creditors found me and started garnishing 25% of my take home pay. I "owed" them $9000, so I knew I had to do something.

At this time, I had never seen a credit report, nor known what the FCRA, FDCPA or any other consumer protections laws were.

I had nothing to lose, and everything to gain, so I started doing research. HEAVY research. Reading books, discussing matters with a (new) friend who happened to be a collection attorney, using the internet to access legal and government resources and, eventually, places like creditnet.com.

I ordered my first tri-merged report in 1998. What a mess! Not only were there 25+ derogatory trade lines, collection notices and public notices of mine, but I had four or five derogatory items that were NOT mine (REAL erroneous data). As I used to say, I could not have financed the steam off of a hot dog at that time. Pheew!

As I stated, I read, read, read, researched, researched, researched and began to realize that it didn't have to be this way. I learned about the consumer protection laws and how they could help me.

Using what I had learned, I mailed out my first dispute letters. Then successfully used the phone as a transport of my rights. I was able to get many things removed -- judgements, 5/6 year old trade lines, collection accounts -- simply be disputing them because many of the creditors had given up trying (remember my garnishments were being returned with 'no disposable income available after preexisting orders are satisfied').

When the disputes had removed everything they could, I went into 'settlement mode'. Over the next 6 months or so, I used the knowledge that I had gained by reading, researching, speaking with my collection attorney friend and using the internet to successfully settle the remaining derogatory items on my reports. After settlement, some items actually disappeared from my reports, even when the creditors stated that they would not remove them. Others remained, including the CH13 BK. No matter what I did, that public record remained.

During 1998, I began entering the sub-prime market. The whole Cross Country and Providian bits. Purchased a $21,000 used truck with $8,000 down and 20% interest -- what the heck, I had learned that I needed to rebuild my credit history, even if it costed me plenty in interest for a couple of years.

I waited out the BK removal -- 7 years from the date of filing. In November of last year, it was removed. During the next couple months, the remaining items were removed due to age (had a couple collection accounts AFTER the BK.

By 2000, I had gained more knowledge and personal experience than 99% of the people I knew (in person, online, etc.). I was finally able to obtain a prime mortgage for my first house ever. I had finally made it through the mess.

I've never claimed to be a legal expert. I have, however, felt determined to help anyone and everyone that I could that found themselves in the same mess that I did. I have the knowledge and experience to navigate the waters of credit hell -- waters that I would never wish even on my worst enemy. I felt that it would be a waste to 'forget' about everything that I had learned when there were people out there who needed the help -- help that I only WISH that I had gotten back in 1994 instead of 1998/1999.

That is the primary reason that I started the 'Millennium CBS Ultimate Creditor/CRA List'. It's a web site where people can add their own experience -- credit inquiries, which CRA was used by which creditor, location, date - so that others could use it to help obtain fair, decent credit instead of being stuffed into sub-prime hell due to lack of knowledge.

I'm currently updating the site to include the ability to add creditor addresses, phone numbers, e-mail addresses and employee/contact information.

Of course, it's all free. And no advertisements.

Again, I'm not a legal expert. My obligation to help those with my experiences and knowledge are all that drive my desire to assist.

John Shimmer
Millennium Credit Building Strategies
www.millcbs.com
Home of the Ultimate Creditor/CRA List