Bankruptcy Chapter 7 & 13

McDonald Law
Offices PLLC

L A W Y E R S
Copyright Notice

On this page:
FAQ Topics
  Stopping Creditors
When, Where & What
  to File

Debts Discharged
Child Support &
  Spousal Maintenance

Spouses & Joint Debts
Listing Creditors
Preference in
  Paying Creditors

Court Meeting
Property Lost
Tax Effect
Secured Debts
Changes &
  Chapter 13 Plan

Missed Plan Payments
Dismissed Cases
Credit after Bankruptcy
      

Listing Creditors


Do I have to list all of my creditors?

Yes. You may not get a discharge for any debt which you do not list. In addition, you will sign a declaration under penalty of perjury that your schedules listing your creditors are "true and correct". Intentionally omitting a creditor could be a violation of this oath.  [9-98]


If my bank card or other account has been paid off, do I have to list it?

If you have an account with no balance (such as a Visa or MasterCard which has been paid off), you do not owe that company any money and it does not have to be listed. The creditor may still allow you to use the account after the bankruptcy. However some creditors (American Express, for example) may check bankruptcy filings and may cancel the card even if they are not listed.  [9-98]


Can I pay off a creditor to avoid listing it?

If you pay any creditor a total of more than $600 within 90 days before your case is filed, you must list those payments in your schedules as a preference. If the creditor was a relative or business associate, payments which total $600 or more within the year before your cases is filed are preferences and must be listed. The Chapter 7 trustee may make the creditor turn over those payments to him to be divided between all of the creditors. In Chapter 13, the amount of your payments may be effected by preferences.   See 547 [9-98]


Can I add a creditor after the case is filed?

Yes, if you add the creditor soon enough. In order to share in any assets which the Trustee distributes, creditors must file a Proof of Claim within 60 days after date your meeting with the Trustee is originally scheduled. You can add a creditor only if the creditor receives notice of the Bankruptcy in time to file a Proof of Claim.  [9-98]


After I received a discharge in Chapter 7, I discovered 3 creditors that I had know idea existed. These items did occur before I filed chapter 7. But, according to your website, if I did not add the creditor to my bankruptcy it's "tuff luck, you have to pay those debts." That doesn't seem fair. I never knew that the creditors existed.

It does seem rather harsh, doesn't it? That was the simple answer. It gets a bit more complicated and depends upon the kind of Chapter 7 case which you had, as well as which court your case might be in. Here is the complicated answer:

Many courts would hold that debts will be discharged in a no-asset Chapter 7 case even if they are not listed. There are two key phrases in that answer that require more explanation.

  • Many courts. The bankruptcy code is not at all clear on this subject. While the trend appears to be that the unlisted debts in no-asset cases are discharged without any further action, the code has been interpreted in differently in many courts. Some courts would allow you to reopen the case to add a debt. Others would say that the debt cannot be added and therefore is not discharged.
  • No-asset. In many Chapter 7 cases, there are no non-exempt assets which the Trustee may sell for the benefit of the creditors. These are called "no-asset" cases.

Courts say that unlisted debt is discharged in no-asset cases have carefully read Section 523(a)(3)(A). This section excepts debt from discharge if they were not listed in time for the creditor to file a timely proof of claim. The proof of claim is used by the Trustee to determine the proportion to divide the debtor's assets between the creditors. In a no-asset case, there will be nothing to divide and no reason to file a proof of claim. As a result, in no-asset cases the bankruptcy notice instructs creditors that they are not to file a proof of claim. Courts taking this position reason that since it will never be too late to file a proof of claim, a debt is not excepted from discharge because it has not been listed. Cases in which the courts reach this conclusion include: In re Madaj, 149 F.3d 467 (6th Cir. 1998); Judd v. Wolfe, 78 F.3d 110 (3rd Cir. 1996); Stone v. Caplan, 10 F.3d 285, 289, n. 13 (5th Cir.1994); and In re Beezley, 994 F.2d 1433 (9th Cir.1993).   [8-99]



These questions and answers are not intended as legal advice or as a statement of the law.  They are intended to suggest areas which you should discuss with your attorney.

Although Bankruptcy law is Federal code applicable to all states, the way it is applied may depend upon state law and varying practices of the courts, trustees, and even attorneys. As a result, some of these answers are directly applicable only in cases filed by our office in Arizona.

This page was last revised: 09/18/04