Discharge in Bankruptcy – Bankruptcy Basics
A discharge in bankruptcy is the release of one or more debts by the bankruptcy court. A discharge means that all debts, including any discharged debt obligations, are legally forgiven. There are two types of discharges: general and special. General discharges are any debts belonging to one or more people who can be held liable for the debts, such as cosigners on mortgages and guarantors of student loans. Unusual discharges are not personal debts a debtor has, such as a wage earner’s retirement plans. The courts determine which debts are discharged and which are not by appointing a trustee (or “trustee” in the original, unadorned type of a discharge order). A trustee holds the money owed to creditors and transfers it to the court. The court then distributes the money to creditors on their filed claims.
A general discharge wipes out an individual’s outstanding debts with no remaining liability for those debts. An available shot eliminates the repayment of all debts that would otherwise have been paid through a chapter 13 bankruptcy repayment plan or a chapter 7 liquidation. A particular discharge will only reduce or eliminate debts owed to a creditor, such as credit card debt incurred within the last year.
When does the discharge occur?
After the court has ruled that a debtor is bankrupt and discharged its debts, the debtor is no longer liable for any outstanding debts. The discharge date will be on the court’s bankruptcy order, but if a discharge has not occurred when a debtor has completed all repayment plan requirements, she may request that the court issue an order to make her eligible for release.
The effect of a discharge order
After the granting of a discharge, there are no conditions for filing past-due income taxes and no filing of an “Adversary Proceeding” that stops an IRS audit. The court may also require the debtor to reapply for Federal Deposit Insurance Corporation (FDIC) membership. A debtor must file a tax return yearly during his bankruptcy until he obtains a final discharge. If a debtor receives any income under Chapter 13 or 7 bankruptcy protection, they must disclose this to their trustee.
Individuals can receive chapter 7 or 13 protection only once every eight years. Once an individual files Chapter 7, he cannot file again for seven years. Similarly, if a debtor files for chapter 13 relief within 3½ years of receiving chapter 7 bankruptcy relief, they must wait another three and one-half years before filing again.
For individuals who have committed fraud in their bankruptcy case(s), it is suggested that the copy be resolved before the completion of their bankruptcy discharge. It is always best to consult with an attorney specializing in bankruptcy law so that your intentions and the facts regarding your situation can be thoroughly evaluated and any actions can be taken accordingly.
Chapter 7 in Wisconsin is also a more popular option than chapter thirteen in Wisconsin because of the extra protection that it provides from creditors. It means a bankrupt can be discharged without paying back taxes and interest due on their investment accounts and real property such as their homes.
How does the debtor get a discharge?
After the bankruptcy was filed, a notice was sent to each creditor listed in the petition. The message informs creditors of the bankruptcy petition and provides them with information about the case, including when the plan should be received. A debtor must also file a list of creditors with all required debt and creditor information to the court.
Are all of the debtor’s debts discharged or only some?
Under chapter thirteen, all but secured creditors are discharged. Under chapter seven, all debts are removed. However, a debtor may choose to pay some debts ahead of others, so there is not always a complete discharge of all debts in the first case.
What happens if the creditor disagrees with the discharge?
Creditors have 60 days from being served notice of the bankruptcy to object and state their reasons for objecting to the order discharging their debts. Suppose a creditor needs to file an objection within 60 days of being notified of the bankruptcy petition. In that case, he cannot later object that he was unaware that you filed for bankruptcy or that he was never told of your claim, even if you lied about helping him.
What about taxes?
Federal and Wisconsin income taxes are automatically waived for persons who have filed for bankruptcy relief. However, the creditor may object if a debtor fails to file a federal or state income tax return. Similarly, if a debtor owes state or FHA-insured mortgage loans, the trustee may object to a discharge of those debts and then counterclaim against the debtor in an attempt to collect on the debt. Suppose a debtor fails to pay FICA or ERISA withholding tax owed on wages such as Social Security or Medicare benefits. In that case, his creditors may object to the discharge of those debts and then counterclaim against him in an attempt to collect on these debts. Once the trustee has collected the withheld amounts, he forwards the funds to the Internal Revenue Service for distribution.
What about non-tax debts, such as credit card debt?
Under chapter 7, non-tax debts such as credit card debt and medical bills are discharged. The debtor will also be relieved of liability for student and automobile loans secured by real property. Generally speaking, under chapter 7, all debts are discharged other than those specifically identified on the bankruptcy petition. But a debtor may choose to pay some debts ahead of others so that there is not always a complete discharge of all debts in the first case.
Clear that a person in a bankruptcy proceeding can begin to discharge any debts not listed on the petition. However, if you are ever unsure of your options, consult an experienced bankruptcy attorney. In chapter 7 and chapter 13, the trustee(s) is appointed by the court and given complete control over all debtor’s assets. The proceeds of any sale or transfer of property will then be split between the creditors according to their claims.
