When A Creditor Attempts To Collect A Discharged Debt
A bankruptcy discharge is an order from the United States Bankruptcy Court. The discharge is a court injunction prohibiting any attempt to collect on a discharged debt. Creditors are strictly prohibited from contacting the debtor by mail, phone, or otherwise; filing or continuing a lawsuit; attaching wages or other property; or taking any other action to collect a discharged debt. A creditor that violates this order is subject to contempt of court and may have to pay damages and attorney’s fees.
A creditor that contacts you in an effort to collect a discharged debt is in violation of the bankruptcy court’s discharge injunction. Usually such contact is a mistake and the creditor is unaware of your bankruptcy discharge. While claiming ignorance is not a valid excuse for violating the bankruptcy court order, informing the creditor that you have filed bankruptcy and received a discharge of the debt is often enough to stop future collection actions. The creditor may want to know certain information about the bankruptcy (case number, date of discharge, chapter, etc.) to update their records and stop further collection efforts. You can answer these questions or simply refer the creditor to your attorney.
It is good practice to document any post-discharge collection action by creditors. While these collection attempts are often mistakes, a main purpose of the bankruptcy discharge is to allow you to live your life free from creditor harassment. The bankruptcy discharge applies to the debt and enjoins any collection of the debt. Consequently, the discharge injunction applies to the original creditor, collection agencies, attorneys, and any other subsequent collector.
Your bankruptcy discharge is legal protection against creditor harassment concerning discharged debts. If you are repeatedly contacted by a creditor after your bankruptcy discharge, document the creditor contact and report it to your attorney. The law is on your side and will protect your right to a fresh start free of creditor harassment.
What To Do When A Creditor Is Left Out Of The Bankruptcy Petition.
It is extremely important to list all of your creditors in bankruptcy. Only the debts listed will be discharged. This is why we run a credit report and ask our clients to give us a list of every creditor. Usually we find all of the creditors this way, but sometimes a forgotten (or unknown) creditor that does not appear on the credit report will be inadvertently left off of the schedules, meaning their debt is not subject to discharge, and the Client can still be held liable for that debt regardless of the bankruptcy UNLESS action is taken.
The most common occurrence of this involves debts associated with hospital visits. When you receive services through a hospital, you will generally receive invoices from not only the hospital, but also the doctor who treated you. So, if you only list the hospital, the debt to the physician who bills you separately from his office is not going to be covered. It is very important to list both. If your trip to the hospital was so close to your filing date that you have not yet received bills, you must make a phone call to the hospital to find out who you should expect to receive bills from.
This also happens when a Debtor has no recollection of a creditor’s details and the debt does not appear on the credit report. In these situations I encourage the Debtor to try their hardest to remember as much as possible. Even if we do not know an account number or the amount owed, as long as we get the creditor’s name and address, we can include it in the bankruptcy.
If a creditor has been left off of the schedules and you realize it while your case is active, we are required to file amended schedules and identify the creditors. There is a small fee to the Court for filing amended schedules, but it is necessary to complete your bankruptcy petition. If you do not realize it until after your case has been closed out, we may have to petition the court to re-open the case in order to amend the schedules and discharge that debt. There is a more substantial fee for that, but again, it is usually necessary.
Obviously, debtors are expected to be open and honest in describing assets and debts, so if a debt was unintentionally left off of the Petition, you must bring that to your attorney’s attention RIGHT AWAY. It can be fixed. An intentional failure to list a creditor, on the other hand, can cause that debt to be declared non-discharged and survive the bankruptcy. In extreme cases courts have denied a bankruptcy discharge because of the debtor’s intentional failure to list all debts.