Specifics About Chapter 7 Bankruptcy Discharge

A discharge releases individual debtors from personal responsibility for almost all debts and helps prevent the creditors owed those debts from taking any collection measures against the debtor. Because a chapter 7 discharge is subject to loads of exceptions, debtors should consult skilled legal counsel just before filing to discuss the scope of the discharge. Often, excluding cases that are dismissed or converted, individual debtors get a discharge in above 99 percent of chapter 7 cases. In the vast majority of cases, unless a party in interest files a complaint objecting to the discharge or a motion to extend the time to object, the bankruptcy court will issue a discharge order relatively early in the case ñ generally, 60 to 90 days following on from the date first set for the meeting of creditors. Fed. R. Bankr. P. 4004(c).

The grounds for denying an individual debtor a discharge in a chapter 7 case are slim and are construedagainst the moving party. Among other causes, the court may refuse the debtor a discharge if it finds out that the debtor: failed to keep or produce decent books or financial records; failed to explain satisfactorily any loss of possessions; committed a bankruptcy criminal offence such as perjury; failed to obey a lawful order of the bankruptcy court; fraudulently moved, hid, or damaged property that would have become property of the estate; or failed to finish an approved instructional course concerning financial management. 11 U.S.C. – 727; Fed. R. Bankr. P. 4005.

Secured creditors may retain some rights to seize real estate property securing an underlying debt even after a discharge is granted. Depending on personal circumstances, if a debtor wants to keep particular secured property (such as an automobile), he or she may make a choice to “reaffirm” the debt. A reaffirmation is a understanding between the debtor and the creditor that the debtor will remain liable and will pay all or a portion of the money owed, even though the debt would otherwise be discharged in the bankruptcy. In exchange, the creditor promises that it will not repossess or take back the automobile or other property so long as the debtor goes on to pay the debt.

If the debtor chooses to reaffirm a debt, he or she must do so before the discharge is entered. The debtor must sign a written reaffirmation agreement and file it with the court. 11 U.S.C. – 524(c). The Bankruptcy Code requires that reaffirmation agreements consist of an extensive set of disclosures described in 11 U.S.C. – 524(k). Among other things, the disclosures must advise the debtor of the amount of the debt being reaffirmed and how it is computed and that reaffirmation means that the debtor’s personal liability for that debt will not be discharged in the bankruptcy. The disclosures also require the debtor to sign and file a statement of his or her current income and expenses which shows that the balance of income paying expenses is sufficient to pay the reaffirmed debt. If the balance is not enough to pay the debt to be reaffirmed, there is a presumption of undue hardship, and the court may decide not to approve the reaffirmation agreement. Unless the debtor is represented by an attorney, the bankruptcy judge must approve the reaffirmation agreement.

If the debtor was represented by  a legal professional in connection with the reaffirmation agreement, the attorney must certify in writing that he / she cautioned the debtor of the legal effect and drawbacks of the agreement, including a default under the agreement. The attorney must also certify that the debtor was fully informed and voluntarily accepted the agreement and that reaffirmation of the debt will not create an undue hardship for the debtor or the debtor’s dependents. 11 U.S.C. – 524(k). The Bankruptcy Code requires a reaffirmation hearing if the debtor has not been represented by an attorney during the negotiating of the agreement, or if the court disapproves the reaffirmation agreement. 11 U.S.C. – 524(d) and (m). The debtor may repay any debt voluntarily, however, whether or not a reaffirmation agreement exists. 11 U.S.C. – 524(f).

An individual receives a discharge for most of his or her debts in a chapter 7 bankruptcy case. A creditor may no longer start or carry on any legal or other action against the debtor to collect a discharged debt. But not all of an individual’s debts are discharged in chapter 7. Debts not discharged comprise of debts for alimony and child support, certain taxes, debts for certain educational benefit overpayments or loans made or guaranteed by a governmental unit, debts for willful and malicious injury by the debtor to another entity or to the property of another entity, debts for death or personal injury caused by the debtor’s operation of an automobile while the debtor was intoxicated from alcohol or other substances, and debts for specific criminal restitution orders. 11 U.S.C. – 523(a). The debtor will continue to be liable for these types of debts to the extent that they are not paid in the chapter 7 case. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for willful and malicious injury by the debtor to another entity or to the property of another entity will be discharged unless a creditor timely files and prevails in an action to have such debts declared non-dischargeable. 11 U.S.C. – 523(c); Fed. R. Bankr. P. 4007(c).

For help with an Augusta GA chapter 7 bankruptcy, find a bankruptcy attorney Augusta Georgia. An Augusta bankruptcy law firm could give you the help you need.