By Ryan C. Wood
Once your debts are discharged in your bankruptcy case and the case is closed you would think that it is all over and you can start fresh. Well, that is in a perfect world and most of the time this is definitely true. However, once in a while, your creditors believe they have never heard of the bankruptcy code, your order of discharge and try to collect from you even after receiving your fresh start. So what do you do to protect yourself?
Under 11 U.S.C. §727, all your dischargeable unsecured debts that were incurred prior to the filing of your Chapter 7 bankruptcy case are discharged, therefore you are no longer personally liable for those debts. Creditors are prohibited from collecting those debts from you after your order of discharge is signed and entered. All collection activities are prohibited, including but not limited to, contacting you by phone, sending collection letters to you, suing you, or continuing a lawsuit against you. You can always pay for the discharged debt if you wish to, but you are under no obligation to do so, and creditors cannot force you to do so. If creditors have a valid lien against you, however, they can still enforce those liens if those liens were not avoided in your bankruptcy case. Examples of valid liens are mortgage or vehicle liens. Some of the debts that are not dischargeable, however, are debts such as alimony/child support, recent taxes owed, student loans, debts incurred fraudulently, and debts for personal injuries caused by the debtor when operating vehicles while intoxicated. These debts would still need to be paid by the debtor after the Chapter 7 bankruptcy discharge.
Under 11 U.S.C. §1328, you will receive a discharge of all your dischargeable unsecured debts once you successfully complete your Chapter 13 bankruptcy plan. Similar to a Chapter 7 bankruptcy, the discharge applies to all your unsecured debts that were incurred prior to filing your bankruptcy case. Since creditors receive a percentage of your Chapter 13 plan payments, the only creditors you receive a discharge from are the ones scheduled in your Chapter 13 bankruptcy petition. The creditors that you inadvertently failed to disclose did not receive notice of your bankruptcy case, and thus you may not receive a discharge from those undisclosed debts.
Once you receive a Chapter 7 or Chapter 13 bankruptcy discharge, if creditors continue their prohibited collection activity against you, you need to notify them that you have already received a discharge of the debt they are trying to collect on. If they still continue to harass you or try to collect from you, it is time to contact your bankruptcy attorney to have them put a stop to these actions. These creditors may be sanctioned by the court for violating the discharge order.
As bankruptcy attorneys know it can be challenging to obtain sanctions and have attorneys fee and costs paid for by the offending creditor. Most bankruptcy judges believe there is some sort of duty to give creditors bites of the apple over and over again for violating the order of discharge. Generally bankruptcy attorneys have to send letters, call or fax information to the creditor that they are violating the automatic stay and to stop immediately. There is no such obligation under the law to do this. Creditors rarely if never call or email me before filing an objection to confirmation of a chapter 13 plan or filing a motion for relief from stay adding in attorneys fees and costs for doing such things. It is a troubling double standard that continues to persist. The pendulum has swung too far towards big business rights instead individual human rights.
If you are being pursued by an overzealous creditor that is still trying to collect on a discharged debt, and if you did not have a bankruptcy attorney, contact a Fremont bankruptcy attorney or Union City bankruptcy lawyers today at 877-9NEW-LIFE or 877-963-9543 to protect your rights.