collectors demanding items back after bankruptsy has been discharged
The letter she received dated 3/7/2013 stated that the bankruptcy was discharged but they want mom to "Voluntarily" return the items. The person who called threatened my mother stated "it was their right" to receive the furniture back. This phone call was made today
Can they demand the return of the furniture?
that is why BK lawyers go
that is why BK lawyers go over this with a potential filer.btw
And I suppose you are a bk attny? Doubt it but I digress. . .
For information on a secured creditor’s right to seek replevin (but no $$$$) read:
Butler v. Nat'l Bank (Bankr. C.D. Ill., 2011);
In re McNeil, 128 B.R. 603 (Bankr. E.D. Pa., 1991)
There are tons others but most deal with larger items. But for McNeil, which dealt with purchases from Levitz, you won't find much relating to smaller items. Again, such is the reason that we (that is, bk attnys) recommend ignoring creditors and their agents - like B&A.
Des.
this was an unsecured account
this was an unsecured account,
Nope - not unsecured. Mom purchased furniture at a store and financed the purchase. If B&A is involved the finance company is probably HSBC. It is secured and a debtor listing it as unsecured does not make it so. Read McNeil.
creditor had its opportunity to be present at the creditors meeting. . . At that point, they are sunk.
Not relevant. Point to a Code provision that requires creditors (secured or unsecured) to appear at 341 meeting? There is none.
I must ask, are YOU a BK attorney?
Yup - 25 years and counting. Google the handle or look at any of my comments on this forum.
what you failed to mention is that the cost of filing a replevin makes it a lousy option in most cases
Wrong. I clearly stated that replevin actions for small items are unlikely hence the reason most ignore B&A.
The problem you are having is that you do not know the Bankruptcy Code or how judges have interpreted it. You, like most consumers, are basing your beliefs on what you think should be the way things are. The Code is not designed to function based upon what a consumer thinks, and, unfortunately, according to Congress, BAPCPA is "a perfect law".
Des.
des, there are two problems
des, there are two problems with your contention as I see it. First, as the OP stated, this was an unsecured account, so anything relating to secured creditors does not apply the same way. Second, the creditor had its opportunity to be present at the creditors meeting, and chose not to show up for whatever reason. At that point, they are sunk. They are not protected as a "secured creditor" because it was an unsecured debt.
OP, I would send Bass a certified letter informing them that they are to cease all contact with you regarding this matter, which is rightfully considered closed thanks to the discharged bankruptcy. Being a third party debt collector means that they have to honor a C&D demand.
des, in light of your argumentative attitude, I must ask, are YOU a BK attorney? If not, what business do you have grilling paulmergel on the matter?
Also, what you failed to mention is that the cost of filing a replevin makes it a lousy option in most cases. You have attorney's fees, costs of filing, costs of acquiring the items, cost of storage and upkeep or repair, and then for all of that, they sell the items to try to recover some sort of dollar amount to apply towards a debt that has already been discharged. Why is it, des, that replevins are almost never filed in cases like these?? Ask yourself that question. The reason is because it isnt worth the $$$. And before any of this could even happen, they would have to try to counter the court listing it as unsecured by proving that the OP's mother signed a credit agreement that granted them security interest in the items purchased. If the account is old, chances are good that they couldnt even prove that in the first place. Show me an OC that keeps old records like that--not very common if at all these days.
well
good luck proving said merchandise was incurred between the time frame meaning if the furniture is more than 3yrs old how do you prove the right to regain?that is why BK lawyers go over this with a potential filer.btw if a creditor is going to demand property or merchandise yes the 341 meeting is the time to file any objections and intentions to retrieve merchandise,or property.last thing i have seen this in reference to lawsuits against a person,not bk's.
The creditor IS secured by
The creditor IS secured by the items purchased and Bass & Assoc typically represents such creditors. The creditor does have the right to demand its property back however, as Soaplady points out, if your mom either ignores them or tells them to “go away”, most likely B&A will eventually stop calling. The general consensus is to ignore the creditor, however, the creditor does have the right to go to State Court and obtain a writ of replevin to get its property. Have I ever seen this happen post bk. . . No. But it can.
Des.
Tell her to inform them that
Tell her to inform them that she no longer has the furniture and to never contact them again.
HOW
the original creditor didn't show up as bass is a collector,and a bottomfeeder.they have no recourse here from my point of view.i don't see a court ruling in basses favor.they are collecting on a debt discharged in BK.tough tittie for them.the creditor should have shown up when they had the chance.i don't see any scenario here where this piece of dirt can do that legaly meaning with a court order.if they can why have BK?
Paul,
Paul,
Here is where you need to make a distinction between attempting to collect on a discharged debt and taking back collateral that secured the debt. You are correct. The debt was discharged and B&A has no authority to ask for money. HOWEVER, the lien that attaches to the collateral did not go away. The creditor, through its agent (B&A) has the absolute right to regain possession of its property.
The lender, through B&A, has the right to file a law suit for the purpose of securing a writ of replevin for its property. It is unlikely that such will happen and that is the reason the consensus is to ignore B&A.
Showing up or not showing up to the 341 meeting has no relevance to anything. Niether does opposing the discharge. Liens pass through Chapter 7s unaffected.
Des.