What If I Forgot To Include A Debt In My Bankruptcy?

It seems to me that nearly every one of my clients has this concern, but really, it’s no big deal. In fact, it’s pretty common for my clients to receive collection demands from creditors that my clients had long forgotten about *after* we filed their bankruptcy cases. So here’s what we do:

If the bankruptcy case is still open, then I ask my client to send me the name and address of the creditor, along with the approximate amount owed as of the bankruptcy filing date. Additionally, I ask my client to provide the approximate date or range of dates that my client incurred the debt. I then prepare an Amended Schedule D, E or F (where secured, priority, and unsecured debts are listed in the bankruptcy case forms), adding this additional debt to the bankruptcy case. I also draft an accompanying cover sheet, explaining to the bankruptcy court clerk exactly how the schedule is being amended. Next, I send the Amended Schedule and cover sheet to my client, explaining the revision, and asking the client to sign the cover sheet. Once I receive the signed cover sheet back from my client, then I file it and the Amended Schedule with the Bankruptcy Court, along with the $30 filing fee. Voila! That’s it!

Now, if the bankruptcy case is already closed, then there are a few other things to consider. Assuming that your case was a “no asset” case (the trustee did not receive any property from you when your case was open), then technically, that forgotten debt was automatically discharged in the bankruptcy, regardless of whether it was listed in the Schedules. Moreover, if you send the Notice of Bankruptcy and the Order of Discharge to the creditor, then chances are pretty good that the creditor will back off. If you’re interested in the legal reasoning behind why it’s not necessary to reopen a closed “no asset” bankruptcy case to add a forgotten creditor, here is an excellent article by Alexander L. Edgar, Assistant United States Trustee, providing all the exciting statutory language and case law you could ever ask for on this issue.

Now, if your case was an “asset” case (meaning that when your bankruptcy case was open, the value of your assets exceeded the allotted exemptions, and so you had to turn over some of your property to the chapter 7 trustee), then in order to add a pre-bankruptcy debt to the bankruptcy, an additional, and more expensive step must be taken before we can file the Amended Schedule. Namely, we have to file a Motion to Reopen the case, asking the bankruptcy court to reopen the case in order to amend either Schedule D, E or F to add the forgotten debt. There is a $260 filing fee to reopen chapter 7 cases. Once the bankruptcy judge enters the order reopening the case, then all you need to do is file the amended schedule (along with the $30 filing fee).

Bear in mind that the information in this article only applies to debts incurred *before* the bankruptcy case was filed! Debts incurred *after* your bankruptcy case was filed are not part of your bankruptcy case, and are not dischargeable in your bankruptcy case.

Posted in Bankruptcy

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1459 18th Street
San Francisco, CA 94107
Phone:(415) 493-8416
Email:heather@hcutlerlaw.com

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