Need advice before speaking with attorney tomorrow....
Date: Thu, 04/27/2006 - 20:28
I was seperated in 1999, divorce was final in 2001. Divorce decree states that in lieu of back child support and alimony, my ex-husband agreed to pay specific debts that were in both of our names. Of course, he stopped paying on them, and he filed Chapter 13 bankruptcy about 3 years ago. Last weekend I got a letter from a collection agency that had purchased one of the debts (all are credit card debts) from Discover. They gave me the option of paying over $5000.00 in 30 days or making payment arrangements on over $7700.00. This particular debt has already fallen off of my credit report. ALL of these debts are past the 3 year Statute of Limitations for my state (AR). I just found out about the SOL tonight, and I have an appointment to speak with my attorney tomorrow to get more info on filing bankruptcy (total bills are over $30,000.00 thanks to huge interest amounts). Should I file bankruptcy and just get out from under all of it, or should I fight it with the SOL? I have worked my credit score back up from 620 to 715 and I really don't want to have to start working it back up again. The remaining debts are set to fall off of my credit report in 1 to 2 years, and all should be past the SOL for my state.
Another question....if my ex's bankruptcy payments paid anything at all to those credit card companies (which I kind of doubt because he had one or two cars on it too), would that void my SOL argument?
And one last question....one of the debts that he filed bankruptcy on is still showing as being paid every month, even though no one is making payments on it, and the balance is NOT going down. How would I argue SOL on that particular debt?
I should also mention that ALL of my current debt (mortgage, car, and 2 credit cards) are ALL current with NO late payments...that's why I hate to file bankruptcy and start having to raise my score again. 715 is pretty good, and I would much prefer to go UP!!
Advice???
Ask your attorney. This is a rather touchy matter. It all depe
Ask your attorney. This is a rather touchy matter. It all depends on what the final divorce documents say, as well as whether your ex-husband's Chapter 13 has made payments to this creditor.
I think you are taking the right step in consulting an attorney
I think you are taking the right step in consulting an attorney in your state. If you haven't already, I would contact the ex to verify if he paid the trustee of the court, if Discover was indeed included AND if his bankruptcy has been discharged. If it's been discharged, Discover accepted the plan, then they can't collect from you (or him) now.
(side note- my suspicious nature wonders if a junk debt buyer saw $$$ from this)
I found this online:
http://www.uscourts.gov/FederalCourts/Bankruptcy/BankruptcyBasics/Chapter13.aspx
Quote:
Chapter 13 also contains a special automatic stay provision that protects co-debtors. Unless the bankruptcy court authorizes otherwise, a creditor may not seek to collect a "consumer debt" from any individual who is liable along with the debtor. 11 U.S.C. ?? 1301(a). Consumer debts are those incurred by an individual primarily for a personal, family, or household purpose. 11 U.S.C. ?? 101(8). |
and
Quote:
The discharge releases the debtor from all debts provided for by the plan or disallowed (under section 502), with limited exceptions. Creditors provided for in full or in part under the chapter 13 plan may no longer initiate or continue any legal or other action against the debtor to collect the discharged obligations. |
If your ex is still paying the trustee, Discover was included, and a collection agency has contacted you, again violation of the law. I hope you are able to get some straight answers on this.
Dana
Dana, I know that Discover, along with all of the other credi
Dana,
I know that Discover, along with all of the other credit cards that we had together were on my ex's Chapter 13. I also know that my ex has been making the payments to the trustee, because they were automatically deducted from his paycheck. As for his Chapter 13 being discharged....if it hasn't already been discharged, it will be very very soon.
I know that when he filed Chapter 13, that there was an automatic stay so that they could not contact me until the Chapter 13 has been discharged...but from what I had understood, once it had been discharged, then they were free to come after me again because it was a joint account.
If I find out that his Chapter 13 has not been discharged yet, then what do I need to tell this collection agency...just to cease and desist?
It's my understanding that once discharged, the debt is consider
It's my understanding that once discharged, the debt is considered paid. They can't come back and ask you to repay it, because otherwise what is the purpose of filing?
Yes, if you haven't already I would send a cease communications letter to the collection agency. Wouldn't hurt to ask them to validate the debt either.
If your ex is making payments, then I think that by seeking payment through a collection agency Discover is in violation of the bankruptcy agreement also.
I didn't know that I was protected by his Chapter 13, because I
I didn't know that I was protected by his Chapter 13, because I did not file with him...in fact, I was listed as one of his creditors (because of child support and medical bills that he owed for our son). I thought that the Chapter 13 only protected HIM from the creditors during and after discharge, and that I was free game as soon as it was discharged. I will definately ask my attorney about it today.
Hi krazykat Whether the 'Discover' account has been included
Hi krazykat
Whether the 'Discover' account has been included in your bankruptcy or not, you have the legal rights to refuse payments on this accounts for others reasons as well. This debt is out of the SOL period and the account has also past the 7 years reporting period as per the FCRA laws. Under these circumstances, you are in no legal obligation to pay the account. You can simply refuse to make any payment on it. Send a letter to the collection agency if they are not aware of the facts. Do your correspondences in writing through certified mail with return receipt requested for records.
Know the fact that if you make a payment on this account, the SOL will be renewed again and the account will appear in your file.
SOL gets void if a payment is made on a joint account with a credit company.
Quote:
And one last question....one of the debts that he filed bankruptcy on is still showing as being paid every month, even though no one is making payments on it, and the balance is NOT going down. How would I argue SOL on that particular debt? |
Put a dispute with the credit bureau on this account. They will investigate the account with your information providers and update it accordingly. There is a possible chance of an error here.
