What Does It Mean That My Debts Have Been Discharged
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In a Nutshell
A discharge order that tells your creditors they are forever prohibited from asking you to pay your pre-bankruptcy debts ever again.
Written byAttorney Andrea Wimmer.
Having your debts discharged means that the court entered a discharge order in your case. The discharge 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 under Chapter 7 and your discharge is entered approximately four months after your case is filed, or you filed under Chapter 13 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 canât try to collect from you.
What Does Bankruptcy Discharged Mean For 1 Bankruptcy Trustee And Someone Who Is Seriously Bankrupt
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What Happens After The Debtor Is Discharged
Although the debtor is discharged, the administration of the bankruptcy continues until the trustee has done everything they need to and they are discharged from their duties. A debtor must continue to co-operate with the trustee until the trustee’s discharge.
If the debtor is making a contribution they must continue to pay it to the trustee even after they have been discharged.
How does the trustee receive their discharge?
The trustee remains in office as long as necessary to conclude the administration of the debtor’s estate. It is only when the trustee has dealt with all of the estate and accounted for the work they have done that they can seek their own discharge.
When the trustee has finished the administration, they must complete the sederunt book and, where the trustee was not the Accountant in Bankruptcy, send it to The Accountant.
They may, at the same time, apply to The Accountant for their own discharge. The Accountant in Bankruptcy will examine the sederunt book and, if there have been no objections, grant a certificate of discharge.
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What Happens To Debts
Once a debtor is discharged they no longer have a personal liability to repay the debts they had before they were made bankrupt, although there are exceptions to this.
A debtor is still personally responsible for:
- student loans
- fines, penalties, compensation and forfeiture orders imposed by any sheriff
- any liability incurred as a result of fraud or breach of trust on the debtors part
- any liability to forfeiture of bail
- any obligation to pay aliment
- any periodical payment ordered by the sheriff to the ex-spouse of the debtor
The pre-bankruptcy creditors, except those above, will not be able to take any legal action against the debtor to recover their debts. However, the debts still exist and the debtor is still responsible for paying any contributions agreed with the trustee.
A creditor can still take action against anyone else, for example the debtor’s spouse, who had a joint liability for the debt.
A debtor is also still responsible for making payments to any secured creditor, for example, for the mortgage on their house.
A debtor is also responsible for repaying any debts which they have run up after they were made bankrupt along with any ongoing liabilities such as rent, council tax, gas, electricity and telephone bills.
First And Second Bankruptcy
This timeline extends significantly for subsequent bankruptcies.
24 months For bankruptcies not requiring income payments into the bankruptcy estate and where the bankrupt individual attends their two mandatory counselling sessions and no party opposes.
36 months For bankruptcies requiring income payments into the bankruptcy estate and where each of the other conditions are satisfied.
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What Happens If Bankruptcy Is Not Discharged
The end goal in personal bankruptcy is to be discharged from it. Not being discharged from bankruptcy puts you in a vulnerable legal and financial situation. Until the discharge has been handled appropriately, all of your finances are essentially at a standstill.
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For starters, your ability to take out a loan will be limited. Without a formal bankruptcy discharge on file, you wont be allowed to borrow any more than $1,000 without notifying the lender that you are bankrupt. If you attempt to take out a loan for more than that amount and fail to disclose your bankruptcy to the lender, you would be in violation of the law.
You could also find yourself scrambling and paying to find a new trustee if the one who was originally appointed applies for discharge. If you dont complete the process and fail to get discharged, you may find yourself having to hire a new trustee, which will cost you more money and waste a lot of time.
Once your trustee is discharged, your creditors may come back at you for the money you owe them on. Not only will they demand the original loan amount, they will likely charge you interest on monies owed. They may even choose to take you to court to get what is rightfully theirs.
Read this to discover some ways of rebuilding your credit after a bankruptcy.
Limitations Of Bankruptcy Discharge
Contrary to what some consumers may believe, bankruptcy is not always the best option in a financial crisis, and a bankruptcy discharge may not relieve them from the obligation of paying off all their debts. Simply put, there are some debts that just cant be discharged.
According to the Federal Judiciary, there are 19 different types of debt that are not eligible for discharge. The most common are spousal child support, alimony payments, and debts for willful and malicious injuries to person or property.
For certain kinds of bankruptcies, condo fees, debts owed to some tax-advantaged retirement plans, debts from DUIs, and student loans are also among them. And any debt not listed on the bankruptcy cannot be discharged. In addition, valid liens on specific property to secure payment of debts that have not been discharged will remain in effect after the discharge, and a secured creditor has the right to enforce the liens to recover such property.
As mentioned above, creditors listed on the discharge are not permitted to contact the debtor or pursue collection activity, and a debtor may file a report with the court if a creditor violates the discharge order. The court may sanction the creditor with civil contempt, which also may be accompanied by a fine.
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Can Bankruptcy Discharge Be Denied
A court can deny a discharge in Chapter 7 for a number of reasons, including, among others, the debtor’s failure to provide tax documents that have been requested, destruction or concealment of books or records, violation of a court order, or an earlier discharge in an earlier case that began within eight years before the date the second petition was filed, and failure to complete a course on personal financial management. In addition, a creditor, trustee in the case, or U.S. trustee may file an objection to the debtor’s discharge.
A discharge may also be denied in Chapter 13 if the debtor doesn’t complete a course on personal financial management or if they’ve gotten a prior discharge in another Chapter 13 case within two years before the filing of the second case, with a few exceptions. A court may even revoke a discharge under certain circumstances, such as allegations that the debtor obtained the discharge fraudulently or fails to provide documents or information requested in an audit of the case.
What Leads To A Conditional Discharge
Generally, conditional discharges are the result of a creditor, Licensed Insolvency Trustee or the Office of the Superintendent of Bankruptcy opposing an absolute discharge usually because the bankrupt individual has failed to meet one or several of their duties.
Common reasons a person may receive a conditional discharge include failing to:
- Disclose all property and deliver all non-exempt property to the LIT
- Provide the LIT with RRSP statements, insurance policies, tax records and returns
- Surrender all credit cards in to the LIT for cancellation
- Attend two mandatory financial counselling sessions
- Report household income and expenses to the LIT and make all required payments
- Attend a meeting of creditors or an examination by the OSB, if required
- Keep the LIT advised of their place of residence throughout the bankruptcy process
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Order Of Suspended Bankruptcy Discharge
A suspended discharge is essentially an absolute discharge that wont be effective until a specific date. A court might demand a delay in the bankruptcy outcome due to a breach of your duties or an ongoing criminal investigation. You also might face a suspended bankruptcy discharge if youve had a prior bankruptcy. In other words, sometimes, based on the situation, the court may feel you need to be bankrupt longer than the statute specifies.
How Discharge Affects Your Home
The official receiver has 3 years to take action in relation to your home, this means it wont be affected by your discharge. Your share in your home will become yours again if they haven’t done any of the following within 3 years from the date your bankruptcy order was made:
- sold your share to someone – like your partner, friend or family member
- applied to the court for an order that you and anyone else living in your home have to leave
- applied to the court for a charging order
- come to an agreement youll pay them the value of your share
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Chapter 13 And Student Loans
A case under chapter 13 is often called reorganization. In a chapter 13 case, you submit a plan to repay your creditors over time, usually from future income. These plans allow you to get caught up on mortgages or car loans and other secured debts. If you cannot discharge your student loans based on undue hardship in either a chapter 7 or chapter 13 bankruptcy, there are still certain advantages to filing a chapter 13 bankruptcy. One advantage is that your chapter 13 plan, not your loan holder will determine the size of your student loan payments. You will make these court-determined payments while you are in the Chapter 13 plan, usually for three to five years. You will still owe the remainder of your student loans when you come out of bankruptcy, but you can try at this point to discharge the remainder based on undue hardship. While you are repaying through the bankruptcy court, there will be no collection actions taken against you. You may have other options, depending on how judges decide these cases in your judicial district. For example, some judges allow student loan borrowers to give priority to their student loans during the Chapter 13 plan.
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