Cleveland, OH asked in Appeals / Appellate Law and Bankruptcy for Ohio

Q: Can a civil defendent whose case is stayed by bankruptcy, file a counterclaim in the same, and ask for damages? In Ohio.

1 Lawyer Answer
W. J. Winterstein Jr.
W. J. Winterstein Jr.
  • Bankruptcy Lawyer
  • Boyertown, PA

A: You don't identify which party is the debtor in bankruptcy.

The automatic stay is triggered by the filing of a bankruptcy case, and prohibits any action against the debtor or property of the debtor's bankruptcy estate (which is very broadly defined).

If the proposed "counterclaim" is against a debtor, it is most probably stayed (when in doubt, seek relief from the stay from the bankruptcy court).

If the bankruptcy case is a Ch. 11 or 13, where there is a "debtor in possession", a debtor is free to assert claims, and counterclaims, against others, in a non-bankruptcy court, but should certainly seek advice of bankruptcy counsel about whether it is wise to do so.

Timothy Denison agrees with this answer

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