Forgot to ad creditor at the schedule and is now discharge

[Batiatus]

I just got a call from one of my creditor and asking me to pay $450. I told them I filed for BK and they said they never got any letter. I filed on 2/17/10 and was discharge on 06/01/10. What can I do?

[drowning123]

I found this answer for you.

That is a question that has not yet been decided by a federal appeals court.

Prior to BAPCPA (Bankruptcy reform law) of 2005, there were some Federal Circuits in which an accidentally omitted debt was considered discharged anyway, and others that had ruled that it might not be.

To fix this, BAPCPA explicitly said that creditors must receive "notice" of the bankruptcy in order for their debts to be discharged. But lower courts have been pretty liberal in interpreting "notice" -- for example, a creditor who heard from her sister that the debtor had filed bankruptcy was deemed to have received "notice" by one bankruptcy court.

Others have ruled that if the creditor isn't listed on the creditor matrix, it hasn't received "notice."

This is going to have to be appealed, probably up to the Supreme Court before there is a final ruling on it.

But until then, ask your attorney what local practice is. It is at least theoretically possible to file a motion to reopen the bankruptcy (the filing fee is $250 and doesn't guarantee you that your motion will be granted), and then file an amended schedule F and an amended creditor matrix. Most bankruptcy judges really *hate* the idea of reopening a bankruptcy case just to add a creditor -- so that could pose an added issue.

It is possible that the debt you omitted was not discharged.

Put in a call to your bankruptcy attorney (if you had one).

[drowning123]

My own answer is to send them a copy of your discharge papers and see if they'll respond.

[Batiatus]

Hi Filed on my own and I really thought I put it on the schedule because I went off by all the letters I got from the collection agencies and also from my credit report

[oregonpilot]

I just got a call from one of my creditor and asking me to pay $450. I told them I filed for BK and they said they never got any letter. I filed on 2/17/10 and was discharge on 06/01/10. What can I do?

I checked my cr yesterday and found my QVC card balance was 0 and IIB.
I didn't have them listed on my matrix cuz i didn't know i had a balance ($20) i guess i had one of those payments with so much a month for say 3 months or so. thought i had it all paid off. but had 1 more month to go. OOPS

[tcreegan]

Hi Batiatus,

To check whether they got the BK notice, look to see if they are on your creditors matrix. Everyone there got a notice.

BUT...the simple solution that works 99.9% of the time is to send them a letter including a copy of the discharge order. Politely, but firmly, inform them that continuing collection activities are in violation of the federal BK discharge injunction and that all further contact will be recorded as evidence. Send it certified mail return receipt requested. Short, sweet, and effective.

Hold your head up high, you hold the winning hand: a discharge!

Tom in Colo

[despritfreya]

The Code provides as follows:

11 U.S.C. § 523

A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b)of this title does not discharge any individual debtor from any debt-

(3) neither listed nor scheduled under section 521(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit-

(A) if such debt is not of a kind specified in paragraph (2), (4) or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing or

(B) if such debt is of a kind specified in paragraph (2), (4) or (6) of this subsection, timely filing of a proof of claim and timely request for determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request.

______________________________

Based upon the plain meaning of the above language the vast majority of the Courts (both at the bk level and at the appeal level) have held that in a “no asset” case the failure to list a creditor does not preclude the discharge of the debt. In a "no asset" case there would not have been a notice sent to creditor to file a Proof of Claim. As a result, if the Clerk’s office did not send out a bar date notice advising creditors of the need to file a timely claim and/or the creditor does not have a reason to try to get its debt excepted from discharge based upon some fraud, misrepresentation, willful and malicious injury etc., the unlisted creditor’s claim is subject to discharged.

Please note that the above provision does not apply to a discharge under §1328(a) as an unlisted creditor would not have been given the opportunity to participate in the distribution under the Chapter 13 Plan. As a result, enforcing a discharge upon the creditor would be a violation of that creditor’s due process rights.

Des.

[frogger]

Provided you filed a Chapter 7 and were a no asset case, send them a copy of your discharge and let them pound sound.

[oregonpilot]

Provided you filed a Chapter 7 and were a no asset case, send them a copy of your discharge and let them pound sound.

frogger...
did you see my visual of your "pound sand"

A guy in a suit out on the beach beating a sand castle with a rubber mallet!

[ValleYum]

frogger...
did you see my visual of your "pound sand"

A guy in a suit out on the beach beating a sand castle with a rubber mallet!

Bwahahahahaha I am laughing again (sans ice water out my nose this time, thank goodness!)

[oregonpilot]

sorry VY didn't mean to do that to you AGAIN..

[scorpion35]

does this apply to medical debt thats not reported to the credit bureaus?