Bankruptcy Dischargeable Debts: Erasable Debts, Bankruptcy Discharge

This comprehensive guide explains the concept of dischargeable debts in bankruptcy, detailing which debts can be erased, the legal framework governing the process, and the implications of reaffirmation agreements for individuals and businesses.

Introduction

Bankruptcy is a legal process designed to help individuals and businesses eliminate or repay their debts under the protection of the bankruptcy court. One of the most significant aspects of bankruptcy is the discharge of debts. A discharge releases the debtor from personal liability for certain specified types of debts, effectively erasing them. This guide will explore the concept of dischargeable debts in bankruptcy, detailing which debts can be erased and the legal framework governing this process.

Understanding Bankruptcy Discharge

What is Bankruptcy Discharge?

Bankruptcy discharge is a court order that releases a debtor from personal liability for specific debts. This means the debtor is no longer legally required to pay any debts that are discharged. The discharge also prohibits creditors from taking any form of collection action on discharged debts, including legal action and communications with the debtor, such as telephone calls, letters, and personal contacts.

The legal framework for bankruptcy discharge is primarily governed by the United States Bankruptcy Code. The relevant sections include:

  • 11 U.S.C. § 524: Effect of discharge.
  • 11 U.S.C. § 727: Discharge in Chapter 7 cases.
  • 11 U.S.C. § 1141: Discharge in Chapter 11 cases.
  • 11 U.S.C. § 1228: Discharge in Chapter 12 cases.
  • 11 U.S.C. § 1328: Discharge in Chapter 13 cases.

For more detailed information, you can refer to the United States Bankruptcy Code.

Types of Bankruptcy

Chapter 7 Bankruptcy

Chapter 7, also known as liquidation bankruptcy, involves the sale of a debtor's non-exempt assets by a trustee. The proceeds are then distributed to creditors. Most unsecured debts are discharged in Chapter 7 bankruptcy.

Chapter 11 Bankruptcy

Chapter 11 is primarily used by businesses to reorganize their debts while continuing operations. It can also be used by individuals with substantial debts and assets. The discharge in Chapter 11 is granted after the debtor successfully completes the reorganization plan.

Chapter 12 Bankruptcy

Chapter 12 is designed for family farmers and fishermen. It allows them to propose a plan to repay all or part of their debts. The discharge is granted after the debtor completes all payments under the plan.

Chapter 13 Bankruptcy

Chapter 13, also known as a wage earner's plan, allows individuals with regular income to develop a plan to repay all or part of their debts. The discharge is granted after the debtor completes all payments under the plan.

Dischargeable Debts

General Dischargeable Debts

Most unsecured debts can be discharged in bankruptcy. These include:

  • Credit Card Debt: Unsecured credit card debt is typically dischargeable.
  • Medical Bills: Medical expenses can be discharged.
  • Personal Loans: Unsecured personal loans are dischargeable.
  • Utility Bills: Past-due utility bills can be discharged.
  • Rent: Unpaid rent from a previous lease can be discharged.

Specific Dischargeable Debts in Chapter 7

In Chapter 7 bankruptcy, the following debts are generally dischargeable:

  • Business Debts: Debts incurred in the operation of a business.
  • Civil Court Judgments: Judgments from lawsuits, except those involving fraud or malicious intent.
  • Certain Tax Debts: Some older tax debts may be dischargeable if they meet specific criteria.

Specific Dischargeable Debts in Chapter 13

In Chapter 13 bankruptcy, the following debts can be discharged:

  • Debts from Willful and Malicious Injury: Debts arising from willful and malicious injury to property can be discharged.
  • Debts Incurred to Pay Non-Dischargeable Tax Obligations: Debts incurred to pay non-dischargeable tax obligations can be discharged.
  • Certain Divorce-Related Debts: Debts arising from property settlements in divorce proceedings can be discharged.

Non-Dischargeable Debts

General Non-Dischargeable Debts

Certain debts are not dischargeable in bankruptcy. These include:

  • Student Loans: Generally, student loans are not dischargeable unless the debtor can prove undue hardship.
  • Child Support and Alimony: Obligations for child support and alimony are not dischargeable.
  • Certain Tax Debts: Recent tax debts and certain other tax obligations are not dischargeable.
  • Debts for Personal Injury or Death Caused by DUI: Debts arising from personal injury or death caused by driving under the influence are not dischargeable.
  • Fines and Penalties: Fines and penalties owed to government agencies are not dischargeable.

Specific Non-Dischargeable Debts in Chapter 7

In Chapter 7 bankruptcy, the following debts are non-dischargeable:

  • Debts from Fraud or Malicious Acts: Debts incurred through fraud, embezzlement, larceny, or malicious acts are not dischargeable.
  • Debts from Willful and Malicious Injury: Debts arising from willful and malicious injury to another person or property are not dischargeable.

Specific Non-Dischargeable Debts in Chapter 13

In Chapter 13 bankruptcy, the following debts are non-dischargeable:

  • Debts from Criminal Restitution: Debts arising from criminal restitution orders are not dischargeable.
  • Debts from Fraud or Defalcation: Debts incurred through fraud or defalcation while acting in a fiduciary capacity are not dischargeable.

The Discharge Process

Filing for Bankruptcy

The discharge process begins with filing a bankruptcy petition. The petition must include detailed information about the debtor's financial situation, including assets, liabilities, income, and expenses.

The Automatic Stay

Upon filing the bankruptcy petition, an automatic stay goes into effect. The automatic stay halts most collection actions against the debtor, providing temporary relief from creditors.

Meeting of Creditors

A meeting of creditors, also known as a 341 meeting, is held. During this meeting, the trustee and creditors can ask the debtor questions about their financial situation and the bankruptcy petition.

Objections to Discharge

Creditors or the trustee can file objections to the discharge of specific debts. Common reasons for objections include allegations of fraud, failure to keep adequate records, or failure to comply with court orders.

Discharge Order

If no objections are filed, or if the court overrules any objections, the court will issue a discharge order. The discharge order releases the debtor from personal liability for the discharged debts.

Reaffirmation Agreements

What is a Reaffirmation Agreement?

A reaffirmation agreement is a voluntary agreement between the debtor and a creditor to repay a dischargeable debt. By reaffirming the debt, the debtor agrees to remain liable for the debt even after the bankruptcy discharge.

Reaffirmation agreements must meet specific legal requirements to be enforceable:

  • Written Agreement: The agreement must be in writing.
  • Filed with the Court: The agreement must be filed with the bankruptcy court.
  • Court Approval: In some cases, the court must approve the agreement, especially if the debtor is not represented by an attorney.

Risks and Benefits

Reaffirming a debt can have both risks and benefits. The primary benefit is that it allows the debtor to retain certain assets, such as a car or home, that serve as collateral for the debt. The primary risk is that the debtor remains liable for the debt, and if they default, the creditor can take legal action to collect the debt.

Conclusion

Bankruptcy discharge provides significant relief to debtors by erasing certain debts and offering a fresh financial start. However, not all debts are dischargeable, and the process involves specific legal requirements and procedures. Understanding which debts can be discharged and the implications of reaffirmation agreements is crucial for anyone considering bankruptcy.

For more detailed information on bankruptcy discharge and related topics, you can refer to the following official resources:

By understanding the intricacies of bankruptcy discharge, individuals and businesses can make informed decisions and navigate the bankruptcy process more effectively.

About the author
Von Wooding

Von Wooding

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