What is a Bankruptcy Discharge?
When a bankruptcy discharge is entered, the debtor is released from all personal liability for certain types of debts. This means that under the law, the debtor is no longer legally required to pay any debts that are discharged. The discharge prohibits the debtor’s creditors from pursuing further collection efforts on any discharged debts. This means they cannot pursue legal action, call, write or otherwise harass the debtor for payment. If a debtor has secured liens, however, these secured creditors can pursue efforts to enforce their lien to recover the property secured by the debt if payment if a debt has not been reaffirmed and payments are not being made.
The purpose of filing bankruptcy is to give an individual a fresh start. In most instances, the court will grant the debtor a discharge; however, there are some exceptions. (See 11 USC Section 727(a)(1).). You should seek legal advice if you have any questions about whether or not your debts are dischargeable.
In Chapter 13 cases, the court usually enters a discharge shortly after the debtor has completed all payments required under their plan. Since a chapter Plan may provide for payments to be made over three to five years, a discharge would not occur until after the Plan has been completed.
A discharge will also not be entered until the debtor completes “an instructional course concerning financial management.” Every debtor must complete this course, with a few exceptions, such as if there are inadequate educational programs available, or if the debtor is disabled or incapacitated or on active military duty in a combat zone. If the debtor fails to timely complete this class and file the appropriate form with the court, the court will dismiss the case without a granting a discharge.
There are 19 categories of exceptions to discharge under chapters 7, 11, and 12. A more limited list of exceptions applies to cases under chapter 13. The most common types of nondischargeable debts are:
- Certain types of tax claims,
- Debts not set forth by the debtor on the lists and schedules the debtor must file with the court,
- Debts for spousal or child support or alimony,
- Debts for willful and malicious injuries to person or property,
- Debts to governmental units for fines and penalties,
- Debts for most government-funded or guaranteed educational/student loans or benefit overpayments,
- Debts for personal injury caused by the debtor’s operation of a motor vehicle while intoxicated,
- Debts owed to certain tax-advantaged retirement plans, and
- Debts for certain condominium or cooperative housing fees.
If you have any questions regarding the dischargeability of a particular debt, you should speak to an attorney. Many attorneys offer free consultations.