North Carolina  |  Bankruptcy

Legal Question

Asked on: 1/12/13, 12:51 pm

We are about to be discharged from bankruptcy and I used and paid off a charge card that was not included in our file..will that effect our discharge?

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Answered on: 1/13/13, 8:53 am by Kenneth Love

This could be a problem. In Bankruptcy you are not allowed to choose which debts to include and keep ones you wan tto use. Potentially this can be seen as bankruptcy fraud if it is discovered. If it is discovered, the trustee can seek a repayment of every dime you paid to the credit card company and use it to pay other creditors. If not discovered, it won't affect the case


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Ken Love Law 3410 Healy Drive Winston Salem, NC 27103

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Answered on: 1/18/13, 7:12 am by Thomas Zimmerman

I do not see it as a serious problem if you amend your schedules to include this creditor. There is a duty to list all creditors. It is a serious matter to omit assets, especially assets you cannot exempt. The trustee likely take action in the case of hiding assets which would likely result in loss of discharge, loss of the asset and even prosecution. Omission of a creditor is not seen as serious because there is no gain to you. The fact that you paid it off suggests that the omission was deliberate and thus the suggestion of false swearing when you signed the petition and schedules and told the trustee at the meeting of creditors that you had listed all of your creditors. Such omission, even if deliberate, shows ignorance and not fraud for gain. Your lawyer should have asked you if you included all creditors and he either didn't do so or you forgot at that time or you lied to him. However, you have a right to pay creditors with post petition earnings. The next logical step is to ask for a hold on the closing of the case to allow the submission of a reaffirmation agreement. Doing these two things would make the case near perfect. Amendment is easy and should be done. The reaffirmation may not be easy to get, but there is no harm in sending one out to the creditor. Likely the creditor will ignore it because it is very unusual to reaffirm a credit card debt. The bigger risk is that the creditor finds out about the bankruptcy and revokes the card. You may have to reapply for credit or seek a new card, perhaps a prepaid one, that is a card where you make an advance deposit. You could just use a debit card which is functionally the same. Discuss it with your lawyer, he should recommend at least amendment of the schedules. There is a filing fee and the lawyer may do it at no extra cost since it takes a motion and order for him to secure more fee, almost double the work. It should be done immediately because if the case is closed, it will have to be reopened by court order to make the amendment.


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