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Just_whats_fair
Posts: 3
Registered: ‎10-14-2012
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Non Dischargable debts have to be listed?

Do debts that are not dischargable have to listed on a chapter 7 bankruptcy in FL?  Ex is insisting she has to stop paying on joint debt because she is filing.  I am sure the debt is not able to be discharged, and there is a hold harmless disclaimer in divorce decree.. however she is stating it has to be listed and if its listed she must stop payments.  Which will RUIN my near perfect credit.

 

Please advise!

Valued Contributor
IOBA
Posts: 2,697
Registered: ‎08-13-2009
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Re: Non Dischargable debts have to be listed?

Wow.  I am not the expert in this field....but I would say the lady is trying to get out of paying, period.

 

As I understand it, ALL debt must be listed when you file BK.

 

Once BK is filed, all creditors are forbidden from contacting you.  (in this case, her)

 

She can STILL send in payments.  Filing BK does not stop her from paying - it only stops the creditor from contacting her.

 

Tell her she still has to pay and go talk to your attny to talk to her/her attny.  

 

Let us know how things work out.

 

ps - and yes, I think if she stops paying, it will ruin your credit score.

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StartingOver10
Posts: 4,545
Registered: ‎03-06-2010
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Re: Non Dischargable debts have to be listed?

[ Edited ]

Just_whats_fair wrote:

Do debts that are not dischargable have to listed on a chapter 7 bankruptcy in FL?  Ex is insisting she has to stop paying on joint debt because she is filing.  I am sure the debt is not able to be discharged, and there is a hold harmless disclaimer in divorce decree.. however she is stating it has to be listed and if its listed she must stop payments.  Which will RUIN my near perfect credit.

 

Please advise!


Well, there are a couple of issues here. 

Any payments she makes within 90 days of the filing date (before filing) could be considered preferential payments by the BK trustee and clawed back from the creditor. She does have to list each and every debt on her BK petition. She can continue to pay, but she risks the trustee going to each of the creditors to get the payments back for the BK estate.

 

Your divorce decree has no weight in the BK court. There is debt that is non-dischargeable, but you will need to find out which debt it is that she has joint with you that is non-dischargable. You might want to speak to a BK attorney yourself, in addition to doing the research, to see which is non-dischargable.

 

If you want to keep your pristine credit on your joint debt, then you need to make the payments on that debt. Discuss it with a BK attorney (not your divorce attorney) in your consultation. Most of the time the consultations are free, but since you aren't filing, you may have to pay a small fee. When she is discharged, that joint debt becomes your responsibility. You might have recourse via the divorce decree after her BK, but I don't know how that works. Your best best is to bring in your divorce decree to the BK attorney so you get proper advice.

 

 

Valued Contributor
chasmith
Posts: 1,062
Registered: ‎05-26-2010
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Re: Non Dischargable debts have to be listed?

I was in exactly the position that your ex is, I had joint debt that my lawyer agreed was non-dischargeable.  Not only did we have to list it, it helped in dealing with the means test.  But at the bottom line I knew and accepted that I had to pay it.

 

I kept paying the minimum on the joint debt right through BK, there wasn't a peep from the Trustee or creditors.  I believe what is going to trigger a clawback is a large, "extra" payment - for example if the ex paid off the entire debt within the lookback period.

 

Your ex needs to understand that the debt is non-dischargeable.  If it's being treated as dischargeable (and it sounds like it may be) you need to get with a BK attorney NOW to see whether you need to object in BK court.  Yes, your rights continue but you don't want to have to try to reopen a BK case later if there are conflucting divorce decree and discharge papers.

BK7 Filed 8/11/2009 Discharged 11/23/2009. Purchased new home 4/11/2012
Starting Score:11/16/2009 EQ 566 11/16/2009 TU 538
Interim Score: 12/27/2012 EQ 683 09/17/2012 EX (lender) 670 1/01/2013 TU 701
Current Score: 11/06/2013 EQ 708 11/06/2013 EX 702 11/16/2013 702 11/06/2013 TU 729
Goal Score: EQ 740 EX 740 TU 740
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Just_whats_fair
Posts: 3
Registered: ‎10-14-2012
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Re: Non Dischargable debts have to be listed?

Thank You Chasmith.. this is what i suspected.  We have told her over and over it is not dischargeable, nowever she is sticking to the story that "her lawyer told her to not pay any payments" and we are sure she has not told him the story behind this particular debt. 

 

I will be contacting a bankruptcy lawyer today to assist.

 

One more question.. is the bankruptcy filed and made public record during the 90 days they don't want you to make payments, or do you not make payments for 90 days then they file?  I;m not seeing any papers filed in the State of Florida for the bankruptcy as of yet.

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chasmith
Posts: 1,062
Registered: ‎05-26-2010
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Re: Non Dischargable debts have to be listed?

[ Edited ]

The 90 day period is a look back, backwards from the filing date, to deal with what are called preferential payments.  The advice your ex is receiving isn't in line with what I received.  Normal payments don't seem to be a problem, even if you stop some and continue others.  In fact a debtor could make some or all scheduled payments up to the date of filing.  What the law is seeking to prevent is preferring some creditors over others.  Paying off your loan in full while dropping other payments would be preferential.  Now I'm not an attorney, just someone who went through this.  And I suppose practices might be different in Florida (but doubt it), I filed in the Eastern District of Virginia.

 

I had two debts I was required to pay by my divorce decree.  One was a car loan which I paid on time through filing and a couple of months after filing, it was paid off before my discharge.  The other was a credit card balance.  I paid the minimum payment through the case and I'm still paying it off.  In my case the Trustee showed no interest in this.

BK7 Filed 8/11/2009 Discharged 11/23/2009. Purchased new home 4/11/2012
Starting Score:11/16/2009 EQ 566 11/16/2009 TU 538
Interim Score: 12/27/2012 EQ 683 09/17/2012 EX (lender) 670 1/01/2013 TU 701
Current Score: 11/06/2013 EQ 708 11/06/2013 EX 702 11/16/2013 702 11/06/2013 TU 729
Goal Score: EQ 740 EX 740 TU 740
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Just_whats_fair
Posts: 3
Registered: ‎10-14-2012
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Re: Non Dischargable debts have to be listed?

What im thinking is happening is, she got some advice and is twisting it to suit her.

 

I consulted with a lawyer - we are very lucky to have UAW legal servics available for low to no charge, he confirmed most of what we said here and in addition plans on filing a motion persuint to the divorce decree for the 30 day late payment.

 

Thanks for taking the time!

 

 

Valued Contributor
chasmith
Posts: 1,062
Registered: ‎05-26-2010
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Re: Non Dischargable debts have to be listed?

That's good.  Filing something now may get her (and her BK Attorney's) attention.  I hope things work out for you.

BK7 Filed 8/11/2009 Discharged 11/23/2009. Purchased new home 4/11/2012
Starting Score:11/16/2009 EQ 566 11/16/2009 TU 538
Interim Score: 12/27/2012 EQ 683 09/17/2012 EX (lender) 670 1/01/2013 TU 701
Current Score: 11/06/2013 EQ 708 11/06/2013 EX 702 11/16/2013 702 11/06/2013 TU 729
Goal Score: EQ 740 EX 740 TU 740
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