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A discharge order that tells your creditors they are forever prohibited from asking you to pay your pre-bankruptcy debts ever again.
Written by Attorney Andrea Wimmer. В
Updated December 28, 2020
Having your debts discharged means that the court entered a discharge order in your case. The discharge (orВ discharge order) is your main goal in filing for bankruptcy protection. It is an order from the court – entered pursuant to the provisions of the Bankruptcy Code – that tells your creditors they are forever prohibited from asking you to pay your pre-bankruptcy debts ever again. Whether you file underВ Chapter 7В and your discharge is entered approximately four months after your case is filed, or you filed underВ Chapter 13В and your discharge is entered after you complete your payment plan, getting your discharge is what protects you even after your bankruptcy case is closed. In other words, a discharged debt is a debt that the creditor canвЂ™t try to collect from you.
The court will automatically send a copy of the discharge order to all of the creditors on your mailing list. At the same time that happens, the court will send you a copy as well. Since this is what youвЂ™ve been working towards, itвЂ™s important to keep thisВ documentВ in a safe place where you can find it again in case you need it. You do not have to send the discharge to your creditors. By now, your creditors should have stopped contacting you long ago and the only reason you would ever need to send them a copy of your discharge is if they didnвЂ™t get the copy from the court, forВ whatever reason.
You will not receive a separate notice from each of your creditors that your debt has been discharged. We do recommend, however, that youВ get a copy of your credit reportВ about a month after your discharge is entered, so you can make sure everyone is correctly reporting your discharge. If a pre-bankruptcy debt does not show up as discharged on your report,В you should file a disputeВ with the credit reporting agency to correct this. At this point, it is not practical (nor effective) to contact your creditor about this as they will (or should) have a big flag in their system that they are legally prohibited from trying to collect from you. Therefore, even if you call them, they might not speak to you about your account at all, even if all you are trying to do is verify that the debt has been discharged.
The discharge does not list out each one of your creditors individually – it applies to them all across the board and is limited only by the non-dischargeability provisions in the Bankruptcy Code. This means that evenВ creditors who cannot be dischargedВ (such as student loans or some tax debts) will receive a copy of the discharge. For those creditors, the discharge tells them that theВ automatic stayВ has been terminated and they can resume collection activities from you.
If you have tax debts that are more than three years old,В they may have been discharged. Since a lot of factors go into determining whether your tax debt was discharged, your best bet is to wait 30-60 days, then contact your local IRS office. By then, their system should have updated throughout and they should be able to tell you which of your tax debts, if any, have been discharged. If you had a taxВ lienВ filed against you for any of the discharged tax years, you should also ask them about releasing the lien at that time.
Getting your debts discharged is the point of your bankruptcy case (there may be others, but itвЂ™s definitely the main one). Getting the discharge is an automatic process assuming you complete all the necessary steps of the process and the court will notify your creditors as soon as it has been entered. It doesВ notВ mean that your case has been closed and you continue to be obligated to assist theВ trusteeВ in the administration of your case. If you donвЂ™t, the trustee can ask the court to revoke your discharge which would then allow all of your creditors to start coming after you again (making the entire bankruptcy case basically pointless). You should continue to monitor correspondence from your trustee and the court, and keep both updated if your mailing address changes to avoid any unnecessary hiccups.
Debt collectors cannot try to collect on debts that were discharged in bankruptcy. Also, if you file for bankruptcy, debt collectors are not allowed to continue collection activities while the bankruptcy case is pending in court.
If a debt collector calls and you have filed for bankruptcy, tell the debt collector. You should also be sure the debt is in your list of debts and creditors filed with the bankruptcy court. If you are represented by an attorney for your bankruptcy, you should let the debt collector know this. Then the debt collector must contact the attorney instead of you while the bankruptcy is pending. You should also let your attorney know that you have been contacted by a debt collector. Once the debt is discharged by the bankruptcy court, the discharge permanently bars the creditor or debt collector from collection of the debt. Filing for bankruptcy can have long-term consequences so consult a bankruptcy attorney to learn more.
It is important to recognize that lenders often have a right to repossess the collateral. For example, auto loan lenders generally have a right to repossess the vehicle after default. If so, then the lender may still have that right after the bankruptcy discharge, if that debt is unpaid. If you have a bankruptcy lawyer, you might want to get advice from your lawyer about repossession.
We have prepared sample letters that a consumer could use to respond to a debt collector who is trying to collect a debt that you no longer owe due to a bankruptcy discharge. Additionally, the sample letters may help you to get information, stop or limit any further communication, or protect some of your rights.
How to Find the Date a Bankruptcy Was Discharged
Finding your bankruptcy discharge order is the simplest way to find the date your bankruptcy was discharged. When a person files for bankruptcy, they eventually receive a bankruptcy discharge that signifies the end of the process and releases the debtor from personal liability for their debts. All debts involved in the bankruptcy case are no longer legally enforceable. The discharge is a permanent order prohibiting any creditors listed in your bankruptcy petition from making any contact with you or taking any action to collect the discharged debts.
If you plan on applying for credit after completing bankruptcy, new lenders may require you to provide proof that your discharge has taken place. If you are uncertain of the date of your bankruptcy discharge, there are a few different ways to find it.
Find the Original Discharge Order
This is the simplest way to find the date of your discharge. After your bankruptcy proceedings end, the bankruptcy court clerk must mail a copy of the initial discharge order to you. The clerk is only required to send new bankruptcy discharge notices, so if your discharge is old you may have to request one from the court.
If you file for a Chapter 7 bankruptcy—typically the option for people with limited income who cannot repay their debts—it usually takes about three to four months after you file your initial bankruptcy petition to receive a discharge order. For Chapter 13 bankruptcies—which require the debtor to enter into a repayment plan to pay back the debts—you receive a discharge order upon completion of the repayment plan. Typically, repayment takes three to five years to complete.
If you either lost or misplaced the original discharge order, you can still ask for one from the bankruptcy court that handled your case. To do this, contact the clerk in the court that entered your discharge order. If you need to obtain a certified copy, you usually have to pay an additional fee. If your bankruptcy case is older and archived, the court may charge an additional fee to retrieve your order as it may take more time to locate your case. If all you are looking for is the date and do not need a physical copy of the discharge, a clerk may be willing to simply give you the information without charging a fee.
PACER, or “Public Access to Court Electronic Records,” is an electronic database accessible to the public that provides information about all cases filed in federal courts, including bankruptcy courts. You can use PACER to find your discharge order.
To begin, you must register with the PACER Service Center. The registration is free and can be submitted electronically. However, PACER does charge a fee depending on how much you use the service. For example, while it charges a 10-cent fee for each page you search for, if you spend less than $15 in a three month period, the service is free to use. Thus, if you are just looking up your discharge order and not hundreds of other documents, the service will likely be free to use. When you access PACER, you must enter your case number into the search function to find all documents related to your bankruptcy case.
If you would like further assistance in obtaining your discharge order or accessing PACER, reach out to an online service provider who can help guide you through the process.
This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.
After your bankruptcy, one of the hardest questions is figuring out just which debts were discharged.
Eliminating debts was the whole point of filing bankruptcy. You’ve got a court order, but no list.
You and your creditors understandably expect to find a single document telling them what debts are no longer enforceable and which survive the bankruptcy.
Bankruptcy discharge order
The official form used by most bankruptcy courts merely states that the debtor is granted a discharge. The general information on the second page of the form suggests that you might need an attorney to understand the application of the discharge in a particular case.
That’s because, while the bankruptcy schedules require you to list all of your debts, not all of your debts are dischargeable.
Some debts automatically survive the bankruptcy filing. Survivors include family support, recent taxes, and criminal restitution.
Other debts may be non dischargeable if the creditor challenges the dischargeability of its debt and wins at trial.
Student loans may be discharged only if the person filing bankruptcy brings an adversary proceeding to establish that repayment creates an undue hardship.
And then, liens generally survive as a charge on the debtor’s property but not a personal liability.
So, it’s complicated.
And the court doesn’t work out all the intricacies before issuing the discharge order.
Who was included in bankruptcy
The basic rule about discharging debts provides that debts are discharged unless there is a statutory exception to discharge listed in the Bankruptcy Code.
The concept of due process (and a provision of the Bankruptcy Code) says creditors get their debt discharged only if they get notice of the bankruptcy.
That’s why saving your bankruptcy papers is so on point. The schedules and the mailing matrix in your case (and any amendments to them) show who was listed in your case.
Listed creditors are most likely discharged.
Californians get broader discharge
In California, where 9th Circuit decisions are controlling, the Beezley opinion (994 F.2d 1433 1993) tells us that even a creditor who wasn’t listed is discharged in a no asset bankruptcy.
The caveat is that if the creditor has a claim to non dischargeability because of the debtor’s bad acts, the claim survives until the creditor has a chance to challenge the discharge of his debt.
Beezley stands for the proposition that even creditors not listed are discharged in a no asset case.
If everything you owned when you filed bankruptcy was exempt or not worth the trustee’s time to administer, you don’t need to amend your bankruptcy schedules to add creditors that you forgot when you filed. If there are no assets, they didn’t miss anything financial by being omitted.
Other circuits have similar case law, too.
When creditors call after bankruptcy
In this era of debt buyers and zombie debt, most debtors can expect to get a collection letter on a debt that was discharged in their bankruptcy.
Usually what it takes to make a zombie debt collector go away is a copy of the discharge order and a copy of the schedules showing that the original creditor was listed in the bankruptcy.
A creditor who sold off bad debt can’t give the buyer anything more than the seller had; in this case, the creditor had an unenforceable debt.
So, save your bankruptcy documents. If giving the collector a copy of the schedules doesn’t make the creditor go away, contact a bankruptcy lawyer.
The bankruptcy court stands ready to sanction creditors who blow off the discharge order.
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About Cathy Moran
I’m a veteran bankruptcy lawyer and consumer advocate in California’s Silicon Valley. I write, teach, and speak in the hopes of expanding understanding of how bankruptcy can make life better in a family’s future.
T his is a very good question, and a bit tricky depending on the circumstances.
First, you need to know if your debts were discharged under Chapter 7 or 13 . The rules are different for each.
Secondly, it depends on which Chapter you want to file this time.
Here are the general rules:
Filing Under the Same Bankruptcy Chapter: Chapter 7 v. Chapter 13
If you are filing under the same bankruptcy chapter, the time frames are different depending on whether you are filing for successive Chapter 7 or Chapter 13 cases.
Successive Chapter 7 Cases
If you received your first discharge under a Chapter 7, you cannot receive a second discharge in any Chapter 7 case that is ?led within eight years from the date that the first case was filed.
Successive Chapter 13 Cases
If you received your first discharge under Chapter 13, you cannot receive a second discharge in any Chapter 13 case that is filed within two years from the date that the first case was filed.
This can get tricky if you file your second Chapter 13 case between two and six years from the first Chapter 13 and the court refuses to confirm your Chapter 13 plan in the second case. Normally, if your plan is not confirmed you could convert to a Chapter 7 case. But in this situation, the rules for receiving a Chapter 7 discharge after a Chapter 13 discharge would kick in (see below) and prevent you from getting a discharge in the converted case.
Filing Under Different Chapters: The Order Matters
If the second bankruptcy case you want to file is under a chapter that is different from the chapter you received your first discharge under, the order determines the time frame.
Chapter 13, Then Chapter 7
If your first discharge was granted under Chapter 13, you cannot receive a discharge under any Chapter 7 case that is filed within six years from the date that the Chapter 13 was filed. The only exceptions to the six-year waiting period are:
if you paid all unsecured creditors in full in the Chapter 13, or if you paid at least 70% of the claims in the Chapter 13 and the plan was proposed in good faith and was your best effort.
Chapter 7, Then Chapter 13
If your first discharge was granted under Chapter 7, you cannot receive a discharge under any Chapter 13 case that is filed within four years from the date that the Chapter 7 was filed.
This can get tricky if you file your second case (the Chapter 13) between four and eight years after the Chapter 7 case and the court does not confirm your Chapter 13 plan. Normally, if your Chapter 13 plan is not confirmed, you could convert the case to a Chapter 7 bankruptcy. However, in this situation, the rules for successive Chapter 7 discharges would kick in, preventing you from getting a discharge in the converted case. In this case, it might make sense to simply dismiss the Chapter 13 case.
Call and speak to a Church and Korhonen, PC bankruptcy lawyer, (800)758-5611 today if you live in the Upper Peninsula.
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Filing for bankruptcy can sometimes be the best way to move on from large amounts of debt. You can hit the financial reset button and get a fresh start. However, only certain debts can be discharged. Others are nondischargeable, and you will still be on the hook for paying them.
Knowing which debts you can and cannot get rid of may help you determine whether bankruptcy is the right debt relief option for you. Below, we’ve explained how discharge works and which debts qualify.
Need to review bankruptcy basics first? Read this.
What is a bankruptcy discharge?
When you file for bankruptcy, you are acknowledging to the court and to your creditors that you cannot pay what you owe. The debt you don’t repay is discharged — basically, it’s written off and you are no longer held liable.
Dismissal is NOT the same thing as discharge
It’s much better to have bankruptcy discharge than a dismissal. Dismissed debt still needs to be repaid. Dismissal closes your bankruptcy case and ends the automatic stay on your accounts, meaning that your creditors can once again contact you about your debt.
When does bankruptcy discharge occur?
This depends on the type of bankruptcy you file. In Chapter 7 bankruptcy, your debts will be discharged after about four months.
Chapter 13 bankruptcy discharge takes longer. Since Chapter 13 involves a repayment plan to help you repay some of your debts, you are granted discharge only after this plan ends three to five years after filing.
Which debts get discharged?
If you have these debts, filing bankruptcy can help you get rid of them:
- Payday loans
- Credit card debt
- Business debts
- Medical bills
- Some tax penalties
- Past-due utility bills
Bankruptcy discharge of tax debt
Tax debt must meet specific requirements to be discharged. These include:
- Must be income tax debt.
- Should be at least three years old.
- Cannot be the result of fraud.
- Ideally, the tax return should have been filed on time.
- The IRS should have assessed the tax debt at least 240 days before the bankruptcy filing.
If your debt doesn’t fit these requirements, it may be nondischargeable. You will have to repay it in another way. Learn more about bankruptcy and tax debt here.
Bankruptcy discharge of student loans
Getting your student loans discharged is very unlikely. According to the Bankruptcy Abuse Prevention and Consumer Protection Act, student loans can only be discharged if they cause a consumer “undue hardship.” This term is vague for a reason − BAPCPA wants to leave the decision up to the bankruptcy court.
The easiest student loans to discharge are private educational loans. Since federal student loans are connected to the government, they run by different rules. Private loans are similar to any other bank loan and can be discharged if listed in a bankruptcy.
Learn more about student loans and bankruptcy discharge here.
Ready to file bankruptcy? Debt.com can help you get started.
Which debts are not discharged?
Unfortunately, filing bankruptcy cannot get rid of these debts.
- Child support and alimony
- Car loans
- Debt from fraud
- Criminal penalties and fines
- Court costs
- Mortgages, HOA fees, co-op and condo fees
- Nondischarged debts from a prior bankruptcy case
- Money you owe due to DUI/DWI charges
- Debts you didn’t list in your bankruptcy case
Why are some debts nondischargeable?
Some debts may be incurred by a consumer’s own wrongdoing. For example, driving while intoxicated (DWI) charges and debt from fraud cannot be discharged. Any other court fees or fines from crimes you committed in the past are also off-limits.
Domestic support debts like child support or alimony also cannot be discharged. These aren’t like credit card debt or a loan − you agreed to pay these to a person, not a creditor or lender.
Since debts like mortgages and car loans are secured with collateral, they are nondischargeable because the creditor can simply confiscate the asset.
Debts not listed in the bankruptcy case can’t be discharged simply because the court doesn’t know about them. This is why it’s important to work with a bankruptcy lawyer instead of filing pro se.
What do I do if my largest debts are nondischargeable?
If you can’t receive a discharge on the types of debt giving you the most trouble, you will have to seek other solutions besides bankruptcy. For housing debts, you may face foreclosure. If you can’t pay car loans, your vehicle may be repossessed. So, what can you do to prevent losing your property or being stuck in a cycle of debt?
Even if your largest debts are nondischargeable, filing for bankruptcy to discharge your other, smaller debts may free up cash to repay the debts you can’t get rid of. You can also seek out other solutions, such as debt settlement, to pay off smaller debts so you can focus on the larger ones that are holding you back.
In a business Chapter 11, the debtor receives a discharge upon confirmation of the plan. In that case, the only debt that isn’t discharged is a nondischargeable tax debt. Other debts are discharged.
On the other hand, in a Chapter 11 for an individual or a married couple, things are quite different. First, the debtor doesn’t get the discharge upon confirmation. Instead, the debtor gets a discharge after substantial completion of the plan, which could be five years after the plan has been confirmed. The list of debts that are not dischargeable in Chapter 11 for individuals or married couples, is the same as the list of nondischargeable debts in a Chapter 7.
For example, most tax debts are nondischargeable, as are student loans, obligations to pay child support or alimony, fines or penalties imposed by a judge to punish the debtor for having done something wrong, debts that are incurred through fraud, debts that are the result of a breach of the fiduciary duty, debts that are the result of doing willful and malicious harm to a person or property, and homeowner’s dues that come due prior to the day the debtor files for bankruptcy. The complete list is in section 523(a) of the Bankruptcy Code.
One kind of debt that is dischargeable in a Chapter 13, but not in a Chapter 7 or Chapter 11 is a debt to a spouse or former spouse, that is not child support or alimony, and that was incurred as part of a separation agreement or a divorce decree.
For example, suppose the divorce judge assigns some debts to a debtor who subsequently files for Chapter 11 protection. With respect to those creditors the debt is dischargeable. If one of those creditors attempts to collect from the nondebtor ex-spouse, the ex-spouse can go back to the divorce judge and ask for contributions from the debtor to pay the debt. The divorce judge will grant the request. It is in that sense that a debt to a spouse or former spouse that’s assigned in the divorce decree or separation agreement, is not dischargeable.
How Long Does A Chapter 11 Bankruptcy Case Last?
The length of a Chapter 11 bankruptcy will depend on the type of case, and the peculiar facts of the case. There is quite a range.
On the one hand, sometimes, it’s clear, ab initio, that the case has no chance of success, and shortly after filing the Court dismisses it. On the other hand, a Chapter 11 case can stretch out for many years.
An individual Chapter 11 case typically lasts for three to five years, though I have had cases lasting longer. In one of my recent cases, my client had an unsecured debt that had to be paid in full over the life of the plan, but the debt was too large to be paid in five years. After successful negotiations, we proposed a seven-year plan that the Court confirmed.
The Bankruptcy Code requires a debtor in a Chapter 11 Subchapter V case — which is available to an individual who owns a small business — to make payments equal to the disposable monthly income for at least three years, and up to five years.
Secured debts — other than those secured solely by the debtor’s principal residence — can be restructured and spread out over a long period of time. As a matter of fact, in that same recent case, I modified a creditor’s secured claim, so that the payment period was 30 years.
There is, of course, the somewhat delicate issue in an individual case of how long the debtor is going to live. For example, if a 75-year-old debtor files for Chapter 11 protection, and wants to restructure a debt to last for 20 years, the Court may be somewhat reluctant to confirm the plan. But in theory a Chapter 11 plan can last almost any length of time. There’s a lot of flexibility.
Sometimes a Chapter 11 plan involves a partial liquidation. In a partial liquidation the plan contains a provision that funds the plan through the liquidation of a particular asset. If the Court approves the sale, then the asset is liquidated in an auction conducted in the Bankruptcy Court. In sum, a Chapter 11, a partial liquidation could lead to a short-lived plan.
You might wonder why the debtor doesn’t sell the asset prior to filing the Chapter 11 petition. Time can be a crucial factor. For example, if a creditor has scheduled a foreclosure sale of the asset, there might be insufficient time for the debtor to sell it prepetition. And even if there were enough time to conduct a sale, a buyer may be reluctant to purchase the asset from the debtor when it could buy the asset for a lower price in the foreclosure sale.
For more information on Chapter 11 bankruptcy, or a Subchapter V Chapter 11 bankruptcy, call (562) 777-9159 for a free 20 minute phone strategy session today.
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It’s hot in Chicagoland and if you are worried about your electric bill and running the AC – check out Chapter 24 of Attorney Peter Francis Geraci’s “Complete Book on Bankruptcy.” Utility bills can be discharged in a bankruptcy. Excerpt is below, check out the entire book @ https://www.bankruptcybookbypeterfrancisgeraci.com/
Gas, electric and telephone (utility bills) can be dealt with in a bankruptcy. If they are current, they should not be listed on a bankruptcy petition. If they are more than 3 months past due, they should be listed, because you can be protected from utility shutoffs, and continue getting utility service without paying the past due bills, in many cases. Most states have laws which say that public utilities cannot refuse to give you service after a bankruptcy, even if you had a bill with them that you are discharging.
For instance, if your electric bill is behind $600, and your regular monthly bill is $75.00, but your electric is shut off because you were so far behind, a bankruptcy will be of great help to you. I will list the electric company as a creditor, and provide you with documents that you must carry in person to the electric company. They will zero out your bill. You then can get service turned on, providing you make satisfactory deposit arrangements. Usually, the deposit would be 2 times an average bill, or 2 x $75.00. This may be payable in installments over several months.
So, you can see that, if you are severely behind in your utilities, and have enough other bills to warrant filing a bankruptcy, you can get your past due utility service up to date very quickly with very little money.
Cell phone carriers may shut off your service if you owe them money and file. The same with cable companies. Most will turn it back on when you provide them with the bankruptcy papers and catch up. Usually our clients only list those providers that are already shut off, so this is not a problem.
The only problem with clients whose utility bills are past due, is that it is a signal that the have problems that bankruptcy cannot solve. Not paying utility bills is like not paying your rent. Unless that is caused by a temporary disaster, you may need more income to live normally. If you don’t have enough income to pay necessities, you may find yourself back in the same situation again very soon after a bankruptcy. (see the Chapter on What Bankruptcy Won’t Solve)
Problem: Mrs. Wilson has 3 finance company loans, 4 credit cards, and a big hospital bill that was not covered by insurance. Her house payment is 2 months late, because she paid the other creditors instead of paying the house payment. Her gas bill is $600 behind, and her lights are off.
The Peter Francis Geraci Chapter 7 or 13 Solution: If she files a bankruptcy petition, her utilities can be “zeroed out”, and her outstanding balance reduced to nothing. She starts fresh with the utility companies, and will only have to put up a deposit in order to get service again. Of course, she will have to remain current in the future.
A Chapter 13 will pick up the past due mortgage payments and prevent collection by the other loans. Of course, there is no sense filing a Chapter 13 if she cannot meet her mortgage, utilities and Chapter 13 payment regularly in the future.
It may be better to file a Chapter 7 in such a case, and perhaps sell the house or live out the equity without making any more mortgage payments.