amending to add a creditor

[justbroke]

But all I'm pointing out is that, as long as the debt is never scheduled and they're never notified, their case passes the laugh test and they can get a hearing before a judge with no guaranteed outcome either way.

Two things. First, the process is very simple. If you failed to schedule someone... send them a copy of your Discharge Order and tell them you were a No Asset Chapter 7. If they are smart, they will go away.

Second, If they are stupid... or they contend that you fraudulently obtained money or services from them, then sure... they can file with a court. However, going before the judge and you entering your Exhibit 1 as a Discharge Order... goes a long way. Most will go away with a copy of your Discharge Order.

Anyone can bring you into court for just about any "ciam" to which you must answer. That's just the facts of our system. Whether you have an affirmative defense or not, is the kicker. In any claim in the above styled scenario, your affirmative defense is that the debt is discharged!

[IOIOIO]

Two things. First, the process is very simple. If you failed to schedule someone... send them a copy of your Discharge Order and tell them you were a No Asset Chapter 7. If they are smart, they will go away.

Second, If they are stupid... or they contend that you fraudulently obtained money or services from them, then sure... they can file with a court. However, going before the judge and you entering your Exhibit 1 as a Discharge Order... goes a long way. Most will go away with a copy of your Discharge Order.

Anyone can bring you into court for just about any "ciam" to which you must answer. That's just the facts of our system. Whether you have an affirmative defense or not, is the kicker. In any claim in the above styled scenario, your affirmative defense is that the debt is discharged!

Right, once I notify them it's a whole different ballgame. Then I'm unambiguously covered by statute.

But let me ask you this. We all know student loans are non-dischargeable (except in very narrow circumstances). Given your reading the word "all" how do student loans survive bankruptcy so easily? Is there some particular provision for student loans spelled out in a statute somewhere?

[justbroke]

Right, once I notify them it's a whole different ballgame. Then I'm unambiguously covered by statute.

But let me ask you this. We all know student loans are non-dischargeable (except in very narrow circumstances). Given your reading the word "all" how do student loans survive bankruptcy so easily? Is there some particular provision for student loans spelled out in a statute somewhere?

Yes. It's in the Code, not Statute. Remember, that 11 USC 727 reads that all debts are discharged, except as provided in section 523 of this title.

The part of the code which address student (educational) debt is 11 U.S.C. 523(a) and more specifically 11 USC 523(a)(8).

[IOIOIO]

The part of the code which address student (educational) debt is 11 U.S.C. 523(a) and more specifically 11 USC 523(a)(8).

Rats.

[justbroke]

Rats.

Sorry. Congress actually made sure there was no loophole with that type of debt. Unlike they did with the fiasco with 11 USC 1325(a)(9) with the so-called hanging paragraph which has driven courts mad over the past 3 years!

[krielly]

JMHO, but in reality, it would seem that "better safe than sorry" applies here.

I'm not sure I understand the resistance you have to filing an amendment.

I would sure as heck rather attend another 341 (if that even happens) then be on the hook for that kind of money.

Seems like by the time all these posts have gone back and forth, you could have filed the amendment

Get-R-Done!!!!!!!!!!!!!!!!

Good luck
K

[justbroke]

I'm not sure I understand the resistance you have to filing an amendment.

Some Districts won't even allow you to do so... on what is, by law, a discharged debt. This is regardless as to whether a Creditor contends that it isn't. There's a process for that.

I believe the OP is doing the correct thing. THe first thing you do is respond to the Creditor and send them a copy of your Discharge Order and Injunction. As I wrote, most will go away with this.

Next, you may then decide to amend the schedules. However, many Districts won't let you amend the schedules on a No Asset Chapter 7 just because your "forgot" to add someone. It's clear that it's not required, so I can see why the court wouldn't allow you.

If you do end up getting sued, then you go in with Exhibit 1 as your Discharge order. After you get the dismissal with prejudice -- if the Creditor can't prove fraud -- then you re-open your Chapter 7 for a Violation of Discharge Order and for Sanctions.

Seems like by the time all these posts have gone back and forth, you could have filed the amendment.

Filing an amendment on a Closed case isn't that simple. It can take weeks. You have to first Motion to court to Re-Open the case. This costs money. Then, after it is re-opened, then you amend the schedules. That costs money. Then, you ask for it to be closed... The lawyer won't mind... as he will get paid for his billable hours.

[krielly]

The OP doesn't yet have a discharge...................They just filed on 10/8...........

[justbroke]

The OP doesn't yet have a discharge...................They just filed on 10/8...........

I guess I got lost in the hypothetical. The OP was asking about post-discharge what would happen. My answers are consistent with that scenario.

However, it still holds true. Do you really need to amend Schedule F to add a creditor which you forgot (post-petition, pre-discharge and close)? I say no. But, then again, I'm not a lawyer and I'm not offering any legal advice.

The key to the argument here, is that scheduling or forgetting to schedule a creditor on Schedule F is moot for purposes of a Chapter 7 No Asset case.

I love what the Madaj court had to say about this subject...

... when an otherwise dischargeable debt is omitted from the schedule in a Chapter 7 no-asset case and the debtor receives a discharge, what is the effect of reopening the case to permit the debtor to schedule the omitted debt?

The answer is "there is no effect." The reason that the reopening has no effect is clear. A debtor cannot change the nature of the debt by failing to list it in his petition and schedules. Section 523(a)(3)(A) excepts from discharge only those debts as to which a timely proof of claim cannot be filed because the debts were not listed and the creditor had neither notice nor actual knowledge of the bankruptcy in time to file a timely proof of claim. In a no-asset Chapter 7 case, there is no date by which a proof of claim must be filed in order to be "timely."

[IOIOIO]

Seems like by the time all these posts have gone back and forth, you could have filed the amendment

You're right, and it's done.

[krielly]

Hope you didn't think I was being a smart "A"????????
I didn't mean to be.

I'm just a firm believer in "CYA"

[IOIOIO]

I should add that my resistance was 1) to avoid complications whose consequences aren't guaranteed, 2) to avoid expense for filing, traveling, sending proof of service to three different parties, 3) involving yet another person in my affairs (to file proof of service) when I've so far limited knowledge of my situation to me, my creditors, the court (and anyone who can acces the internet!).

Since my original filing fee was waived, they waived my amendment fee, and didn't ask for proof of service. I merely sent certified letters to the creditor and collection agency, so even if that's somehow deficient notice, the point is moot as justbroke says because I'm no assets. And if it ever appeared in front of a small claims judge, the other party can claim all the technicalities of deficient notice they would like, but can't claim they had no knowledge of the case, which is all that's required.

[justbroke]

I should add that my resistance was 1) to avoid complications whose consequences aren't guaranteed, 2) to avoid expense for filing, traveling, sending proof of service to three different parties, 3) involving yet another person in my affairs (to file proof of service) when I've so far limited knowledge of my situation to me, my creditors, the court (and anyone who can acces the internet!).

I'm glad that you got this behind you. I am even more impressed that the Court was accommodating.

Actually, when I first started dealing with the Clerk's office, they told me that I had to serve my Plan (amendments) on all Creditors (there were 60 unpurged creditors on my original list). So, I, like sent out my first plan to 60 people... and it cost me $1.41 for each envelope to mail!

Then the Case Manager (Clerk's Office) started doing all the mailings for me through the BNC! She told me that they try to help the Pro Se filer where they can. That saved me MUCH postage. However, I've still spent over $200 in postage and certified mailings since July.

[justbroke]

I'm just a firm believer in "CYA"

Me too, but you have to weigh the CO$T of that. Many Chapter 7 (and even some Chapter 13) debtors, don't have money to waste.

Luckily, the Court was very accommodating to IOIOIOIO and s/he was able to get this amended without CO$T, although it probably cost them time, and gas, and a visit to the Court.