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  1. #1
    Join Date
    Nov 2012
    Posts
    2

    Default Late Creditor Claim Filed Against Me

    My question involves bankruptcy in the state of: Wisconsin. I have received a complaint from a creditor dated Nov 5th 2012 as the service of summons to determine dischargeability of a debt. The court had fixed Oct 29th 2012 as the last day for filing complaints pursuant to 523(c) of the bankruptcy code. Can I file a motion to dismiss based on the summons date being past the court ordered fixed date to file a complaint??

    P.S. the plaintiff is an executive agency of the government of the state of Wisconsin if that makes any difference..

  2. #2
    Join Date
    Sep 2010
    Posts
    478

    Default Re: Late Complaint Filed Against Me

    The Complaint was not filed under 523(c) as that provision simply authorizes the filing of a non dischargeability complaint.

    Why does the creditor assert the debt should not be discharged? If the assertion is under 523(a)(2),(4) or (6) or under 727(a) then the filing of the Complaint is time barred after October 29th UNLESS the creditor requested an extension of the filing date before October 29th. The issuing of the summons is not relevant so long as the Complaint was filed on or before the deadline.

    Once the Complaint is timely filed the creditor requests the issuing of a Summons. The Summons and Complaint must be served within 14 days of the issuance of the Summons. If not, the creditor must get the Clerk to issue an “Alias (replacement) Summons” which must then be served within 14 days. The creditor has a total of 120 days from the filing of the Complaint to make sure it is properly served.

    If, in your case, the Complaint covers (a)(2),(4) or (6), was filed after 10/29, and the creditor did not get the deadline extended, the Complaint is time barred the proper course would be to file a Motion to Dismiss within 30 days of the date of the Summons instead of an Answer. If the Complaint was timely filed (or covers any other non-dischargeability provision under 523) and served you have 30 days from the date of the Summons to file your Answer.

    Des.

  3. #3
    Join Date
    Nov 2012
    Posts
    2

    Default Re: Late Complaint Filed Against Me

    Thank you Des,
    The creditor is using 523(a)2, the complaint is just a regular typed document stating the creditors claims and on the last page it says it was written on the 29th of Oct, but "29th" is just hand written on the document, how do I find out exactly when the complaint was filed??

  4. #4
    Join Date
    Sep 2010
    Posts
    478

    Default Re: Late Complaint Filed Against Me

    If you do not have access to PACER you should sign up for it. Go to:

    http://www.pacer.gov

    OR

    Call the Clerk of the Court to find out exactly when the Complaint was filed. Remember, if it was filed on the 29th and the 29th was the deadline, it was timely filed.

    Des.

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