If you have filed for Chapter 7 bankruptcy, and creditors and bill collectors are continuing to pester you with phone calls and notices despite the fact that you believe your debts were discharged, you should ask yourself the following questions:
Was I Officially Discharged? Many debtors misunderstand the bankruptcy process, and erroneously believe that they are automatically declared bankrupt at the filing of their petition. A discharge is an order by the court forgiving all or some of your debts permanently. To be declared officially bankrupt by the court takes time, and the filing of the petition is the first step geared towards that goal. In a Chapter 7 bankruptcy, a discharge is granted approximately ninety days after the petition is filed. Upon the granting of a discharge, the bankruptcy court mails the debtor and the debtor’s attorney a notice notifying of the discharge. If you do not recall receiving a discharge notice in the mail, and are unsure whether a discharge was granted, contact the Clerk’s Office in the district where you filed for bankruptcy or contact your bankruptcy lawyer. If your inquiry reveals that you were not officially discharged then creditors have all the right to try and collect on the debt.
Was The Creditor Included? If you contacted the Clerk’s Office and learn that you did receive an official discharge, and the creditor keeps calling despite the fact, check to see if the creditor was accidentally omitted from your bankruptcy papers. In order for a debt to be forgiven, it must be listed in your filing documents. All debts you want discharged must be listed in the mailing List of Creditors, and Schedules D, E, and F. Failure to list a creditor makes the debt not dischargeable to that creditor. You should refer to the aforementioned schedules and verify that the creditor and the debt was listed with a valid mailing address. If the creditor was not listed, then that debt is non-dischargeable and the creditor can continue to pursue any and all collection efforts against you.
Was The Debt Discharged? You can list as many debts as you want in your bankruptcy filing, but it does not mean that they will all be forgiven. There are certain types of debts that are not dischargeable in bankruptcy: student loans, taxes incurred by failing to file or fraud, child support and alimony payments, parking tickets and traffic fines, criminal fines, personal injury lawsuits resulting from driving under the influence, and fraudulently obtained debts, to name a few. Debts that are often discharged are credit cards (unsecured debt), medical bills, personal loans, lawsuits, and judgments. Although you may have listed the debt in your schedules, if the debt is a non-dischargeable then the creditor has all the right to try and collect after bankruptcy. Contact the bankruptcy lawyer who filed your petition, or the Clerk’s office to confirm that the debt has not been forgiven in your proceeding.
Give Notice: If you listed the debt in your schedules, provided a valid address for the creditor, received an official discharge from the court, the liability is a dischargeable debt, and the creditor is still calling, then that creditor is violating the law by making contact. What typically resolves this problem is a simple phone call. You should contact the creditor and inform
them that you have filed for bankruptcy and were officially discharged, provide them with the index number, the date the petition was filed, and the district of the bankruptcy court in which same was filed. Make sure to write down the name and the department of the representative you speak to over the phone. It is also good practice to follow up with that representative via letter, enclosing the same information you relayed over the phone. Your bankruptcy filing is a public record and can be easily accessed by the creditor(s) with just the case number you provide. The letter confirming your phone call is recommended, but not necessary. Debt collectors and creditors alike are usually very careful with contacting a debtor after bankruptcy for fear of being ordered to pay fines and lawyer fees.
Is the Creditor Still Contacting You?
If you are still receiving notices for the debt, after you called and sent a letter confirming your filing, you should consider heading to court.
A creditor who intentionally defies the official discharge of the bankruptcy court, can be held responsible for your attorney fees, can be ordered to pay any damages you incurred because of their breach, and can be held in contempt of the court. Furthermore, a creditor that pursues collection efforts on a debt that has been forgiven in bankruptcy is in violation of the Fair Debt Collection Practices Act, which carries its own consequences.
You can Amend Your Filing: If you are able to answer the first three questions in the affirmative, and you have contacted the creditor and informed them of your filing, the necessity of going back to court will be unlikely. In the event that you failed to include a debt and the creditor in your schedules, you can amend your chapter 7 documents to include the individual or entity. Commonly, you are allowed to amend your papers and list the debt years after the you filed your petition. Contact the Clerk’s Office in the Bankruptcy Court where you initially filed and inquire on how to amend your petition. You can also contact the bankruptcy lawyer who handled your matter and ask him to list the omitted debt in your amended papers. If the omission was due to negligence of the lawyer then the amendment should be of no cost to you. However, if you failed to inform your bankruptcy lawyer of this certain creditor, then be prepared to pay a legal fee for the amendment. The legal fee incurred will most likely be insignificant compared to the debt that will still be due and owing without the amendment.
Mishiyeva Law- Bankruptcy Lawyer NYC 80 Wall Street New York, NY 10005 (646) 736-6328 kmbankruptcylawyerny.com