I received a call from a creditor who was included in my ch 13 filing in 1997. This is a unsecured creditor and the company calling was a collection agency. I pleaded the SOL defense, and they informed me that I made a payment on this account in 2002. So of course I said prove it. I received a letter today with copies of 3 checks sent to them by the chapter 13 trustee. I don't understand. Non of my other unsecured creditors were paid anything. Reason being was that my case was dismissed, and it was my understanding the only priority/secured creditors received anything. And that being the case I guess the SOL has not expired. ANY IDEAS!!!
Call your bankruptcy attorney and find out why they were paid. Ask him what action you should take at this time.
First of all your Chapter 13 was dismissed and not discharged which means that ALL of your creditors could go after you. But fortunately for you they probably didn't file a "proof of claim" so they weren't paid anything. It is true that creditors are paid in a specific sequence;priority claims, secured claims and unsecured claims. The reason this creditor probably got paid was because first and most importantly the creditor filed a "proof of claim" (most unsecureds don't). It is also possible that the priority claimants and/or the secured claimants were either paid on a pro-rata basis all that was owed after they filed their "proof of claim" so they went away. Your atty should have sent you copies of all the "proofs of claims" that were filed. My feeling is that this creditor is one of them. Since your case was dismissed and not discharged AND the creditor filed a timely proof of claim then you're right in assuming the debt gets legally re-aged and you're on the hook to pay it. It also means the SOL is reset to zero. This is the inherent problem with Chapter 13 bk'ers. If they do not have the discipline to finish their plan then they can get royally screwed unless they can get it converted to a Chapter 7. Many people file a 13 in order to buy time in which they can put off a foreclosure on their home or some other large asset (but < 350K). So there are savvy creditors that file a proof of claim in order to take a "wait and see" approach as only 35% of debtors complete a Chapter 13. clc
Clc Thanks for your input. I recently received copies of the checks that were allegedly sent by my bk 13 trustee. But non of the checks have my name or bk 13 case number on them. I find that to be a little strange. At this point shouldn't' I demand that this CA prove that these payments were for my account? Has anybody every heard of a CA trying to pull something like this?
I talked with someone from the trustee's office, and they confirmed that they did in fact send payments to the CA. Is it too late to request validation? This account is not currently showing and any of my reports, but now the SOL is not up until Jul 05. I don't know if I can afford to pay in full to avoid any further action. Any suggestions?
