What do you need to do, what efforts are worth taking, if there are debts you don’t have any records on or you have forgotten?
Several blog posts ago we introduced the law that debts “neither listed nor scheduled” risk not being forgiven in a bankruptcy. Section 523(a)(3) of the Bankruptcy Code. This follows the bankruptcy principle that debts are forgiven—“discharged”—unless a debt fits within a specific exception. Debts “neither listed nor scheduled” is one of the exceptions.
Related to this exception to discharge we’ve recently looked at:
- how to add a debt after filing your case that you didn’t list initially, and your timing for doing so;
- an exception to this discharge exception, that is, your unlisted creditor’s debt still being discharged if the creditor finds out about your case, and does so on time; and
- debts sold or assigned to collection agencies.
The above-listed discussions leave one last question for today concerning unlisted debts:
What do you do if you don’t know all of your debts because you’ve moved or lost track of them for any reason?
This practical question allows us to apply the principles we’ve been digging into these last few blog posts.
The Potential Consequences of Not Listing Debts
Start with the assumption that you will continue to owe any debt you don’t include in your bankruptcy debt schedules. Although the discharge of debts is a legal right, it is one that you can exercise very seldom. Hopefully, it’s something you’ll only need once in your life. You want to do it right.
Chapter 7 “straight bankruptcy” generally takes about four months from start to finish. It costs pretty much the same in fees and damage to your credit whether you include all your creditors or miss one or two. You vastly increase its effective cost if afterward, you continue to owe a debt or two that you could have discharged. Plus, instead of getting the peace of mind of a full fresh start, you’d be saddled with potentially avoidable debt.
Chapter 13 “adjustment of debts” involves a payment plan lumping together all your debts. Most unsecured creditors have to share out of a pool of money based on what you can afford to pay. The payments are often a small percentage of what you owe, perhaps even 0%. If you neglect to list a debt in your schedules, it can’t participate in your plan. So, instead of paying that debt the same percentage that you’re paying others, you’d have to pay it in full. Since the bankruptcy earmarks all your money for your other creditors, you’d have nothing to pay the unlisted creditor. So when it forced you to pay—such as by garnishing your paychecks—that would disable your Chapter 13 plan. Frankly, that would be a mess.
So, of Course, Do All You Can to Know and List All Your Debts
We don’t want to scare but rather to motivate you. It’s worth the effort to figure out who you owe and to find their accurate addresses.
One prominent place to start is with a credit report. Talk with your bankruptcy lawyer about getting free ones from all three of the major consumer credit agencies.
But it’s essential to know that a credit report is NOT necessarily a complete list of your debts. For some people, it might be. But for others, their credit reports would be woefully incomplete. Financial institutions and significant consumer creditors will quite reliably be on your credit reports. But medical providers and various other kinds of creditors—not so much.
It is worth sifting through ALL of your paper and computer files (and piles!) to find any other debts. Scour through your memory about possible obligations you haven’t thought about lately. Think about old unpaid landlords and utilities, possible bounced checks, or outstanding personal loans from friends or family.
Possible Claims, Ambiguous Amounts
Consider situations where you may or may not owe anything. Are there any old or more recent unresolved vehicle accidents? Might you have caused personal or property damages to some person or business? Are there any unusual possible claims against you, for defamation, embezzlement or another misuse of funds or trust? Could there be any claims come out of an old or not so old divorce, non-marital relationship, any family fight, or the closing of a business? Are there any almost forgotten threats against you to pay for anything whatsoever?
Bring any of this stuff up with your Kalispell bankruptcy attorney, preferably at your first meeting. Some situations may genuinely not warrant including as a possible debt. Your lawyer is the person who knows how to protect you and to guide you through the tough judgment calls. You need to ask the questions so that he or she can give you the right advice.
It’s generally not that important to know how much you owe—a reasonable estimate is often good enough. But again talk with your lawyer, because sometimes—depending on the type of debt—the amount is essential.
If you know the original creditor but not a subsequent collection agency, start by listing the original creditor. It may well pass on your bankruptcy filing information to the collector (although you can’t count on this). Also, the original creditor may still owe the debt. The collector may have only a temporary collection agreement.
You still want to list any collectors on an account. That’s because it’s hard to know who owns the debt. That may take not just looking through all your papers but also doing internet research and making phone calls. Your bankruptcy lawyer and his or her staff will be your guide.
Very Old Debts
Most debts can get old enough that the creditors can no longer collect on them. Most states have statutes of limitations on the collection of debts.
But those laws are often complicated, with different lengths of time for different kinds of debts. Different triggers start the time running, and other events that can suspend (“toll”) the time from running. The time limit can sometimes be extended simply by you being out of state or hiding from the collection.
Even if a statute of limitation arguably applies you’d rather not have to defend a collections lawsuit on this basis.
Talk with your bankruptcy lawyer about what to do to best protect you from old and ancient debts.