I have a judgment to an individual that had filed for chapter 7, and where granted a discharge. I had no idea of the filing. My lawyer obtained the paper work after the fact. My name is on the creditor list but not my address. My lawyer or myself never received a notice of filing. Court papers show that they’re where no funds available to pay any non secured dedts, which mine was. Is my judgment discharge or is this an illegal discharge?
Answered on: 12/18/12, 11:46 am by David Gibbs
Unfortunately, it is very likely that in spite of the Debtor not having given you notice of the bankruptcy, your debt is still discharged. There are a long line of cases which hold that in a no-asset Chapter 7 bankruptcy, where the creditor's treatment would have been no better had they received notice, the debt is discharged whether scheduled or not scheduled, notice or no notice. See In re: Beezley, 994 F.2d 1433 (C.A.9, 1992). This case and its predecessors are cited over and over again for the proposition that even if a debt is not listed in a no-asset Chapter 7 bankruptcy, that it is still discharged. The only possible exception to this rule is if you could have avoided discharge because the debt is of the type that is non-dischargeable. The analysis of whether or not you might have grounds to avoid the discharge is a complicated one, and so I suggest that you contact a local bankruptcy attorney with experience in handling non-dischargeability claims. If you had the right to avoid discharge in the bankruptcy, you may have the right to reopen the Debtor's bankruptcy, and file your Adversarial Proceeding. Be advised, however, that unless the debt owed to you is substantial, the cost of pursuing non-dischargeability may be cost-prohibitive.
David L. Gibbs, Esq.
The Gibbs Law Firm, APC
San Clemente, California
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