Bankruptcy: Consumer Bankruptcy [1] Introduction [2] General Information [3] Limitations on Filing [4] The Automatic Stay [5] Debt Treatment under Chapter 7 [6] Debt Treatment under Chapter 13 [7] Asset Treatment under Chapter 7 and 13 [8] Choosing Between the Alternatives [9] Case Summary and Outline [10] Getting Started [11] Typical Pre-Filing Problem Areas [12] Filing [13] Typical Post Filing Issues [14] The First Meeting of Creditors [15] Chapter 7 Interim Administration [16] Chapter 13 Interim Administration [17] Chapter 7 Discharge [18] Chapter 13 Discharge [19] Typical Post Discharge Issues [20] Fees and Costs [21] Bankruptcy Reform Booklet One Booklet Two Client Page Bankruptcy Packet Fees and Costs Power Point [1] Introduction & Priority Debt [2] Secured Debt [3] Executory Contracts & Unsecured Debt [4] The Bankruptcy Estate [5] Chapter 7 [6] Chapter 13 [7] Final Matters Other Areas: Arbitration Business Formation Agreement Writing Small Claims Radio Show Paralegal Training Practice Areas: Bankruptcy Wills & Trusts Home: Resume Office Hours Location Emergencies Fees Disclaimer Omphalos Chapter 18 Chapter 13 Discharge 1.0 Availability A chapter 13 discharge under 11 U.S.C. §1328 is available only to individual debtors. In addition, a discharge is not available in a chapter 13 if a discharge has been granted previously in a chapter 7 or 11 within the previous four years. Thus, such a case should never be filed. A discharge in chapter 13 is also not available if the debtor has obtained a discharge in a chapter 13 within less than 2 years. Under the new law there are additional restrictions. First, you must have complete the Financial Management class. Second, under 1328(h) the court must certify that the debtor has not been convicted of (nor is there pending an action for) a securities law violation or intentional injury to an individual in the last 5 years. And third, the debtor must be current on all Domestic Support Obligations. 2.0 Extent The chapter 13 discharge, discharges debts arising before the commencement of the case, as well as those arising under §502 which are treated as having risen before the petition was filed. It does not effect the validity of liens (other than judicial liens) on the debtors property, but only the debtors personal liability on those debts. This means that a lien can be collected post discharge upon the property of the debtor securing that lien but by no other assets of the debtor. Nor does it affect tax liabilities for returns due after filing. Further, the discharge is limited by 1322(b)(5), 507(a)(8)(C), 523(1)(B), 1(C), (2), (3), (4), (5), (8), or (9), and 1328(a)(3) or (4). 3.0 Revocation A discharge obtained by fraud may be revoked under section 11 U.S. C. § 1328(e) within one year of issuance if the fraud is not discovered until after the discharge is granted. 4.0 Effect 11 U.S.C. §523(a) operates as a permanent injunction to protect the debtor from any action to collect discharged debts as a personal liability of the debtor. It also protects the debtors post -bankruptcy property from the claim of discharged debts. A violation of this injunction is punishable by the bankruptcy court. It may be brought before the court by an order to show cause. It should be noted again, however, that a creditors lien remains on any property of the debtor unless otherwise avoided during the bankruptcy proceeding, and the creditor may enforce such lien, only to the extent of the property's value. 11U.S.C. §525 also gives other protections regarding employment and licensing. 5.0 Notice In a Chapter 13, once you have made the final payment on your plan, the Chapter 13 Trustee’s office will do an audit of your case. Once that audit is completed, a notice will be sent to the Court and a Discharge will be issued. This notice will come in the mail and a copy will also be sent to each of your creditors. This process can take a month or more.