Dear Bankruptcy Adviser, My husband filed bankruptcy personally and from his business. He had a credit card with both our names that he used for business. It was included in the bankruptcy, and he ordered a discharge. It shows on both of our credit reports as a charge-off. We've now received a letter, three years later, directed to only me from an attorney filing to take me to court to repay the debt. It turns out the credit card company that had both of our names now shows just my name on it. Can they force us to pay even though it was charged off? -- Sandra
Continue Reading Below
Dear Sandra, You might be liable for this debt, but it is hoped you'll be able to prove otherwise. Take this letter very seriously, and immediately determine whether you have actually been sued or whether it merely states that you will be sued unless you start making payments.
Oftentimes, the letter simply states that a lawyer is now handling your file and may begin legal action against you. Someone should have served you with official court documents if, indeed, you have been sued.
Here are the paths to take after receiving such a letter.
You have not been sued. After calling the attorney, you find out that a lawsuit has not been filed. At this point, you can breathe -- for now. Immediately demand validation of the debt in writing. You need proof that you are personally liable on this account. This attorney needs to provide you with a copy of the signed contract. Many of my clients in a similar situation confirm they were not personally liable even after receiving a similar letter.
Whether you are personally liable depends upon if you were an authorized user on the account. If you were an authorized user, it would have allowed you to use the card but does not mean you are obligated to pay back the debt. This could have happened if your husband called the credit card company and asked for a card in your name allowing you to use the card.
This is different than when you are personally liable, which means you signed a contract or verbally committed to pay back the debt. Regardless of whether you or your husband used the card, you and your husband are individually liable to pay back the account.
You should also find out if your debt is outside of the statute of limitations in your state. If this is the case, you might be unable to be sued for the balance. Most state laws say you are legally liable for a debt four years after the last time you used the account or made a payment on it. So while you are morally responsible to pay the debt, you are not legally required to pay it.
If none of these are the case, then:
You've been sued. You need to file an answer with the court, and confirm the same information as above. Many times, people are sued even though they are not personally liable on the debt or the statute of limitations has run out. It is hoped that not too much time has gone by since the lawsuit was filed, and you are still able to defend yourself.
While you can respond to the lawsuit without an attorney, a competent one could help make sure to protect all your rights.
Good luck, and I hope you are not personally liable on the debt.
Copyright 2012, Bankrate Inc.