By Ryan C. Wood
Yes, it happens. Just because you filed for Chapter 7 or Chapter 13 bankruptcy and the Bankruptcy Court signed your order of discharge does not mean a creditor will not call you, write you a letter or even sue you to try and get paid on a debt that was discharged. They can do these things and they can be wrong for doing it.
Most people first contact their bankruptcy attorney to let them know a creditor is still bothering them. That attorney’s representation of you most likely ended upon the entry of the discharge or even after the conclusion of the meeting of the creditors. This is pretty standard. The attorney may not be willing to get involved with enforcing the order of discharge without further compensation. More time equals more money. Instead of calling your bankruptcy lawyer send the creditor or the collection agency that is still bothering you a copy of the order of discharge. Whether they were served with the original bankruptcy petition at the time of filing could be an issue depending upon the circumstances. This article is not going to address the legal rights of parties under the different chapters of the Bankruptcy Code and whether they have to be listed as a creditor in the case or received some sort of notice of the bankruptcy case filing when it was filed.
So what if the creditor or collection agency will not go away or still is bothering you? Even calling you at work attempting to collect on a discharge debt? You may have to take legal action and have the Bankruptcy Court hold them in contempt of court for violating 11 U.S.C. §524, the order of discharge. See Barrientos v. Wells Fargo Bank (In re Barrientos), 663 F. 3d 1186 (9th Cir. February, 2011). The 9th Circuit Court of Appeals has instructed us in Barrientos that the proper remedy is to reopen the bankruptcy case and file a motion for contempt. In this particular case the bankruptcy attorney filed an adversary proceeding and not a motion for contempt. An adversary proceeding is a lawsuit filed within a bankruptcy case to adjudicate something. Without boring you with all the legalese in this case the bottom line is your bankruptcy lawyer that filed your case, or who you retain later, needs to reopen that bankruptcy case and file a motion for contempt, not file adversary proceeding for violation of the order of discharge. In Barrientos the Ninth Circuit Court of Appeals explains that Congress did not intend for enforcement of a discharge order to be left to any other judge than the bankruptcy judge who issued the order. Contempt proceedings for a violation of § 524 must be initiated by motion in the bankruptcy case under Fed. R. Bankr. P. 9014 and not by adversary proceeding. This does not mean that you are not allowed to provide testimony and serve discovery if necessary.
