QUESTION
What happens to my counterclaims in a post-bankruptcy lawsuit?
Asked on Oct 19th, 2013 on Bankruptcy - Colorado
More details to this question:
I was sued after my Chapter 7 discharge for events prior to my bankruptcy (not personal injury) and filed a counterclaim. Upon notification of the bankruptcy the Plaintiff dropped his claims. What happens to my counterclaims? Who is the party in interest?
6 ANSWERS
Consumer Bankruptcy Attorney serving Los Angeles, CA
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Orantes Law Firm
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It depends. If you listed the counterclaims as assets in your schedule B, you can pursue them and keep the money because when the Chapter 7 trustee closed your case, he is deemed to have abandoned them. If you did not list them, the opposing side may be able to find case law saying that you are barred from pursuing them or notify the Chapter 7 trustee of the counterclaims and the Chapter 7 trustee may want to reopen your case to pursue them instead.
Answered on Oct 22nd, 2013 at 5:39 AM
Depends - what were the nature of your counterclaims? We're they listed as possible causes of action on your schedules?
Answered on Oct 22nd, 2013 at 5:16 AM
Your counterclaims belong to your bankruptcy trustee unless you claimed them as exempt on Schedule C. (You did list them on Schedule B, didn't you?) The trustee may decide to pursue these claims on behalf of your creditors or may abandon these assets, at which point they belong to you again.
Answered on Oct 22nd, 2013 at 4:46 AM
Debt Settlement Attorney serving San Diego, CA
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Law Offices of Kathryn Tokarska
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Since the lawsuit was dropped, the case is over. Did you list the claim as an asset on your petition? If the actions that created the claim occurred before the bankruptcy was filed, then any such claim should have been listed on your schedule B. If you didn't list it and you continue to pursue this matter there could be a problem as the creditors in your bankruptcy are entitled to all non-exempt assets. Caveat: Answers to questions online cannot replace actual legal advice or being represented by a lawyer in your case. There may be other undisclosed facts that could impact your results. A legal consultation with an attorney would involve disclosing quite a few other things about your financial activities and situation.
Answered on Oct 22nd, 2013 at 3:28 AM
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You must have listed your counterclaims in the bk and give the trustee of your case option to purse them. If trustee elects not to pursue them they are abandoned back to you upon closure of your case, or upon motion. These claim survive your filing. You may pursue them. They may be offset by any claim the creditor has against you, however.
Answered on Oct 21st, 2013 at 2:25 PM
Deborah F. Bowinski
If you worked with a lawyer, contact him or her. You probably have to amend your bankruptcy schedules to include and disclose your claim against the other party if it is the result of pre-petition circumstances. You should also claim any exemption to which you may be entitled. If the trustee abandons the claims then you would be free to pursue, but they may belong to your trustee at this point in time.
Answered on Oct 21st, 2013 at 2:22 PM