How do we get a judgement removed that was included in our bankruptcy?
Full Question:
Answer:
There are two options for trying to reverse a bankruptcy order: a motion to reconsider the order may be filed with the Bankruptcy Court, or the order may be appealed. The deadline for taking either action is 10 days from entry of the contested order. If any party debtor decides to appeal a Bankruptcy Court order, he or she must file a notice of appeal with the Bankruptcy Court. When an appeal is filed, the matter is referred to the Bankruptcy Appellate Panel (BAP) or (at the election of any party to the appeal) to the United States District Court. A filing fee, currently in the sum of $255, must be paid when the notice of appeal is filed. At various stages in the appellate proceedings, the debtor will be required to file additional documents.
Within 10 days after the Notice of Appeal is filed, the Appellant must file a Statement of Issues on Appeal, and a Designation of Record on appeal, or the bankruptcy appeal is subject to being dismissed for failure to properly prosecute that appeal. Appellees can file a counter-designation of record is Appellant fails to designate all items in the record below necessary to deciding the appeal.
The answer will depend on whether the debt was discharged or not. The discharge releases the debtor from all debts provided for by the plan or disallowed (under section 502), with limited exceptions. Creditors provided for in full or in part under the chapter 13 plan may no longer initiate or continue any legal or other action against the debtor to collect the discharged obligations.
As a general rule, the discharge releases the debtor from all debts provided for by the plan or disallowed, with the exception of certain debts referenced in 11 U.S.C. § 1328. Debts not discharged in chapter 13 include certain long term obligations (such as a home mortgage), debts for alimony or child support, certain taxes, debts for most government funded or guaranteed educational loans or benefit overpayments, debts arising from death or personal injury caused by driving while intoxicated or under the influence of drugs, and debts for restitution or a criminal fine included in a sentence on the debtor's conviction of a crime. To the extent that they are not fully paid under the chapter 13 plan, the debtor will still be responsible for these debts after the bankruptcy case has concluded. Debts for money or property obtained by false pretenses, debts for fraud or defalcation while acting in a fiduciary capacity, and debts for restitution or damages awarded in a civil case for willful or malicious actions by the debtor that cause personal injury or death to a person will be discharged unless a creditor timely files and prevails in an action to have such debts declared nondischargeable. 11 U.S.C. §§ 1328, 523(c); Fed. R. Bankr. P. 4007(c).
The discharge in a chapter 13 case is somewhat broader than in a chapter 7 case. Debts dischargeable in a chapter 13, but not in chapter 7, include debts for willful and malicious injury to property (as opposed to a person), debts incurred to pay nondischargeable tax obligations, and debts arising from property settlements in divorce or separation proceedings. 11 U.S.C. § 1328(a).
If the creditor of a discharged debt continues collection attempts it is a violation of Federal Bankruptcy Law and subject to court sanction. A discharged debtor may send a letter telling the creditor that if it continues to try to collect funds that have been discharged under federal Law, an adversary proceeding against the creditor may be filed in the United States Bankruptcy Court. The letter should also enclose a copy of the discharge order. The bankruptcy court has the power to hold the persistent creditor in contempt of court. The court also may fine the creditor.
