Thinking about filing for bankruptcy? Discharge is one of the terms that you should be familiar with.
The ultimate goal of most bankruptcy cases is to obtain a discharge of debts. A discharge is the removal of the legal obligation to repay a debt. In more legalistic terms, it is a permanent injunction preventing creditors from trying to collect on the debt.
When Is A Discharge Not Granted?
In bankruptcy discharge is neither honorable nor dishonorable, like in the military. You either get a discharge, or you don’t. Not all bankruptcy cases result in a discharge being entered. And not all debts are dischargeable.
One’s entire discharge can be denied for many reasons, such as making false statements on your bankruptcy papers (omitting assets, failing to list debts, failing to account for where money/assets you had have gone or engaging in a scheme to defraud your creditors, etc.).
Creditors also have the opportunity in every bankruptcy case to object to the discharge of their individual debts, if they can prove the debts were incurred through fraud. Some debts are not dischargeable regardless of whether an objection is filed, such as student loan debts, domestic support obligations, certain taxes, and several others.
A Discharge Is Not A Dismissal
Sometimes cases will be dismissed without a discharge. This can occur either voluntarily (you decide you don’t want to proceed with a case, usually in Chapter 13). Or it can occur involuntarily pursuant to a request from a creditor or the bankruptcy trustee for failure to comply with rules and requirements, or not being eligible, and so forth.
Dismissal and Discharge are two completely different things. These are important terms to understand when communicating with a bankruptcy attorney.
When Do I Get My Discharge?
This depends on which Chapter you filed. In a Chapter 13 case, for example, you receive your discharge about 4-6 months after you complete all required payments due under your plan, assuming you have complied with all other requirements. In a Chapter 7 case, the discharge is usually entered after the expiration of the objections period for creditors to object to the discharge of their debts. This is 60 days after the initial date set for the Meeting with the Trustee in your case. Typically the discharge will be entered 4-5 months after the filing of the case, but objections or other factors can delay this.
How Long Does The Discharge Last?
The discharge lasts forever. It is permanent. The only exception is if the discharge is revoked due to later discovery of some sort of fraud or other wrongdoing in connection with your bankruptcy case. The time limit for seeking revocation of a discharge in a Chapter 7 case is the later of one year after entry of discharge, or the date the case is closed.
The Discharge is not the end of a bankruptcy case. In fact, a bankruptcy case can remain open for a long time after the entry of the discharge. Why should you care (one might ask)? Because until the case is closed, particularly in a Chapter 7 case, the bankruptcy trustee remains the legal owner of all assets which are property of the bankruptcy estate. That basically means everything you owned or had rights to on the date your case was filed. And that means until the case is closed, you cannot do anything with your assets, such as sell your house or give your car to your favorite nephew without permission from the Trustee. In the normal Chapter 7 case, the case will be closed within a couple of weeks after the entry of the discharge. But not always.
The Trustee could be looking into selling assets or seeking to recover transfers or any number of actions to benefit creditors. And that can take years sometimes. In those situations, it is important to have your attorney monitor the case for closing. If it does not close within a reasonable time, they should file a Motion with the court to “Abandon” the property back to you.
Carolyn Secor P.A. focuses its practice in the areas of Bankruptcy and Foreclosure Defense in Clearwater, Florida. For more information, go to our web site www.BankruptcyforTampa.com or call 727-254-1704.