After discharge loan company calling for furniture

[Scupra]

I fully agree with Dave here.. Tell this company to pound sand and send you whatever they want in WRITING via mail. Heck, with how amazing your lawyer is, give them your lawyers number and tell them to contact them

[Shannon3671]

Thank you both for the information. I guess if they should call again that's what I'll tell them to do. Howerver, if they do go to court to seek to have the items picked up, would I then be responsible for their court costs? 

[MakingProgress]

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@Shannon3671 wrote:

Thank you both for the information. I guess if they should call again that's what I'll tell them to do. Howerver, if they do go to court to seek to have the items picked up, would I then be responsible for their court costs? 

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They aren't going to go to court for a mattress and recliner that is unsecured debt discharged in BK.  It was unsecured so now that it has been discharged they can't legally even talk to you about that debt little lone ask for repayment or repossion of the items purchased.

[Shannon3671]

I think my attorney or his preparer listed it wrong though. Even though they are under the unsecured section, I pulled an old contract from a previous purchase I'd paid off long ago and the contract is titled "Retail Istallment contract Security Agreement." Wouldn't that give them a purchase security interest? Or is it unsecured now because they didn't dispute it? Then, under the Description of Goods or Services, it just says "see attached invoice."

I'm sorry for all of the questions, I'm just really confused as to what's going on and now worried that my attorney messed something up on top of it...or his preparer. 

I do appreciate all of the help.

[DaveInAZ]

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@Shannon3671 wrote:

I think my attorney or his preparer listed it wrong though. Even though they are under the unsecured section, I pulled an old contract from a previous purchase I'd paid off long ago and the contract is titled "Retail Istallment contract Security Agreement." Wouldn't that give them a purchase security interest? Or is it unsecured now because they didn't dispute it? Then, under the Description of Goods or Services, it just says "see attached invoice."

I'm sorry for all of the questions, I'm just really confused as to what's going on and now worried that my attorney messed something up on top of it...or his preparer. 

I do appreciate all of the help.

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Exactly, if they felt they had a security interest it was their job to dispute the filing at the 341 Creditors Meeting, and certainly before discharge. It has now been discharged, nothing they can do to change that. And remember that Bankruptcy court is a Federal court and the BK judge is a Federal judge. If they tried to take you to court it would be a state or local court, and that court would say a federal court has already ruled this an unsecured debt and discharged it. Case dismissed.

And no problem, that's what we're here for, because we already went though this.

[ptkdude]

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Exactly, if they felt they had a security interest it was their job to dispute the filing at the 341 Creditors Meeting, and certainly before discharge. It has now been discharged, nothing they can do to change that. And remember that Bankruptcy court is a Federal court and the BK judge is a Federal judge. If they tried to take you to court it would be a state or local court, and that court would say a federal court has already ruled this an unsecured debt and discharged it. Case dismissed.

And no problem, that's what we're here for, because we already went though this.

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Keep in mind, if they sue you will need to file an answer saying the debt was discharged in bankruptcy and include your case number.  Don't assume that the court involved will automatically know about the bankruptcy.  They might, but don't take that chance.  You'll save yourself lots of hassle.

[despritfreya]

I need to set this record straight. Many of you think that a creditor must show up to the 341 to dispute how a debtor lists the debt (secured v. unsecured in this thread).

1. Creditors DO NOT, I repeat, DO NOT have to show up at the 341.

2. If a creditor thinks the debt should be non-dischargeable due to fraud, willful & malicious injury, or breach of fiduciary duty the creditor MUST file a timely objection under 523(a)(2)(4) or (6). This has nothing to do with the 341.

3. In a Chapter 7, a secured creditor is a secured creditor REGARDLESS of how the debtor lists the obligation.

4. A creditor secured by personal property, especially if the security is based upon a PMSI (purchase money security interest) as in OP’s situation, is entitled to a) the surrender/return of its property; b) payment of the value of its property (redemption); or c) the reaffirmation (pay & retain when courts say "no" to reaffs) of the entire obligation.

5. If a debtor simply ignores a creditor secured by items of personal property that is in the nature of typical household goods and some (inexpensive) jewelry, in all likelihood the creditor will go away. HOWEVER, if the creditor wants to pursue the return of its property (creditor has no right to demand $$) and the debtor fails to cooperate, the creditor can go to court to obtain a writ of replevin.

Des.

[Shannon3671]

Thank you. Yes, that was my original concern was the questioning for money. The manager of Tower Loan, Scott, Thursday called me once at work, left 2 voicemails on my personal phone while I was at work and then called me again that evening wanting money. I had already told them before the bankruptcy discharged (conversation with the regional manager was on September 20th and the discharge was November 1st) that I had no intentions of keeping the items when their regional manager got beligerant on the phone with me wanting money for the mattress and wanting to know why I wouldn't pay it since the monthly payments were so low. I tried to explain to him that regardless of how small the amount for the mattress was, that 11 days after I filed the bk, I wound up in the hospital for almost a week having an unplanned surgery and almost 4 weeks off work with 3 of those weeks off at no pay, to which his response was "what does that have to do with anything." Even that conversation with the regional manager wanting money was nearly 2 months after the bankruptcy had been filed, so their demanding of money has been a constant through the entire bankruptcy really. This past Thursday, when he called my work, he wanted to know if I'd come in and start getting current on my payments. I told him no, that I had no intentions of doing such and had already told them that then let him know I had to go since I was at work. Then he called me back Thursday night wanting money telling me I'd only have to pay $205.63 to become current and that I'd only have to deal with him, not the regional manager. When I told him no, he said, so you don't want to keep the items? I again had to tell him no after multiple requests to just come in and pay the past due in full or work with him on a way for me to become current on the account.  Now, I don't know if that qualifies for demanding money, but it sure as heck was multiple attempts over the last 2 months to make payment on the account both during the automatic stay and after the discharge. 

If I'm being honest, I don't see why I should make the return of the items any easier on them than what they have made the bankruptcy on me, so I will let them go through the process of the replevin to get them. I also don't trust them one bit to come get the items and then turn around later and claim that they haven't so I'd feel better if there was documentation and a realiable witness as to the return of them. I have also looked up various cases where companies have tried to charge debtors attorney fees from the replevin and have failed, so I believe I will be covered there as well.

Thank you all again for everything.

[despritfreya]

The demands for money as opposed to setting up a time and place to take back the collateral is a violation of your discharge.  Your attny should be handling this matter however that would entail setting up the surrender of the collateral, not holding out for a writ of replevin.  If you want the calls to stop, the next time he calls, tell the idiot that if he continues to ask for money you will seek an Order of Contempt against him and the company for violating the Discharge.  Then tell him when and where the item can be picked up.  Document, in detail, the conversation by sending a certified letter confirming the conversation. Copy your attorney.  In the letter tell the creditor that if it fails to pick up the item as instructed the item will be taken to the dump.

Des.

[Scupra]

Or file a CFPB complaint against this company for their collection practices.. Abusive, harassment and asking for money? This is ridiculous and the company is preying on you not knowing your rights. They don't want the mattress, they want MONEY. They played the good guy bad guy skit and I highly doubt any of these jokers are the "regional manager"..