If a Debt Isn’t Scheduled in a Chapter 7, Is it Discharged?

Growing up, my dad liked the saying, “If a tree falls in the woods and nobody is there to hear it, does it make noise?” (Actually, he used the alternate version, involving a bear, bear poop, and the resulting odors).

But, let’s get back to creditor rights talk: “If a Debt isn’t Scheduled in a Chapter 7, Is it Discharged?

The general thought is, if you want to discharge the debt, you have to list and send notice that creditor. Most Debtor Bankruptcy attorneys err on the side of listing any and everybody: paid debts, unpaid debts, potential debts, everything.

This comes from 11 U.S.C. § 523 (a)(3), which says that all debts are discharged under § 727, unless those debts that are:

“…neither listed nor scheduled under section 521(a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit–

(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or

(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request…”

Based on the text above, it’s pretty clear, right? If it’s not listed, it’s not discharged, right?

Well, the Sixth Circuit Court of Appeals has very convincingly ruled otherwise, in In re Madaj, 149 F.3d 467 (6th Cir. 1998). In that case, the debtor intentionally hid the bankruptcy from the creditors (who, coincidentally, were his foster parents). They weren’t listed, weren’t warned, and, in fact, the debtors actively kept the case a secret from mom and dad.

But, nevertheless, the Bankruptcy Court noted that the case was a no-asset case, meaning no Proof of Claim deadline was ever set, such that the § 523 (a)(3) timelines and deadlines were never implicated. The Court said that, because no claim deadline was ever set in this no asset case, then it didn’t matter when the creditors learned of the Bankruptcy Case: the instant they learned about the Bankruptcy, the debt was discharged. Subpart (A) above never came into play, because no Proof of Claim was ever set. Heck, the Court reasoned, the creditor could file a Claim today and still be technically “timely.”

“Their learning of the bankruptcy after the entry of the discharge order did not transmogrify the debt into one that is excepted from discharge under some provision of the Code other than § 523(a)(3)(A).”

Once upon a time, when a creditor wasn’t listed, the debtor would file a Motion to reopen the closed bankruptcy case and then amend their Schedule F to include the debt. The Court expressly rejected that practice. Instead of imposing administrative hassle on the Clerks and counsel, the Court found that such debts–listed or unlisted–are discharged. In a no asset case, “the fact that the debts were not listed becomes irrelevant.”

So, in these situations, that sound you hear is the debt getting discharged.

Bankruptcy Discharge: You Only Get One Every Eight Years

Sometimes people need to hit the “reset” button more than once, even in Bankruptcy Court.

How quickly can an individual who has received a Chapter 7 discharge obtain a new Chapter 7 discharge?

The answer is in 11 U.S.C.A. § 727(a)(8), which provides that the Bankruptcy Court shall grant a discharge, unless:

(8) the debtor has been granted a discharge under this section, under section 1141 of this title, or under section 14, 371, or 476 of the Bankruptcy Act, in a case commenced within 8 years before the date of the filing of the petition;

So, the quick answer is that you count out 8 years from the date that the individual filed the first case in which he or she received a Discharge. Note: You don’t count the 8 years from the last discharge, but, instead, from the date that the earlier case was filed.

This is why you see what some people refer to as “Chapter 20″ bankruptcy cases, in which a debtor receives a discharge in Chapter 7 and then immediately (or soon thereafter) files a subsequent Chapter 13 case. The debtor doesn’t get a discharge in the Chapter 13, but can get the other benefits of Chapter 13, like stretching out the amortization of a debt that was reaffirmed in Chapter 7 or obtaining a stay from collection on liens or reaffirmed debts.

This is a change from earlier law, which set the time period between discharges using a 6 year period.

Another side issue to consider: under 11 U.S.C.A. § 1328(f)(1), the debtor in a subsequent Chapter 13 will not receive a discharge in that Chapter 13 if he or she received a discharge under 7 or 11 in a case filed under 7 or 11 during the 4 year period preceding the Chapter 13 filing.

Snake Eyes for Gamblers: Gambling Debts are Enforceable in Tennessee, Where the Debts arose in a State Where Gambling is Legal

Gambling is illegal in Tennessee, and, as a result, Tennessee courts will not look kindly on lawsuits to enforce gambling debts.  This includes gaming losses and debts incurred for the purpose of gambling (i.e. a loan from a casino for in-house gambling).

This hostility is codified in Tennessee statutes.  Tenn. Code Ann. § 29-19-101 provides that: “All contracts founded, in whole or in part, on a gambling or wagering consideration, shall be void to the extent of such consideration.” Tenn. Code Ann. § 29-19-102 states: “No money, or property of any kind, won by any species or mode of gambling, shall be recovered by action.”

To show how serious they are, there’s Tenn. Code Ann. § 29-19-103, which imposes a $100 fine against any person who files a lawsuit based on a gambling debt.  In fact, the next statute, Tenn. Code Ann. § 29-19-103 says that a losing gambler can sue to recover his losses in an action.

But, Tennessee Courts have allowed lawsuits to collect gambling loans and losses where the gambling debts were incurred in a state where gambling is legal.

This is seen in both: (1) lawsuits filed  by out-of-state casinos to enforce gambling debts in Tennessee (see Robinson Prop. Grp., L.P. v. Russell, W2000-00331-COA-R3CV, 2000 WL 33191371 (Tenn. Ct. App. Nov. 22, 2000); and (2) enforcement actions to domesticate foreign judgments based on gambling debts (see Mirage v. Pearsall, 02A01-9609-CV-00198, 1997 WL 275589 (Tenn.Ct . App.1997).

The courts have found that it’s not contrary to Tennessee public policy to allow enforcement of gambling debts in Tennessee, where the gambling loans/gaming contracts were entered into in a state where gambling is legal.

The Tennessee Court of Appeals has reasoned “it would be a great injustice if Tennesseans could reap the benefits of gambling in states where it is legal when they are successful, but seek shelter in Tennessee courts when they lose.”

Keep in mind, however, if you file a lawsuit to enforce a gambling debt incurred in Tennessee–where gambling is illegal–it’s no crap-shoot: you’re probably going to have to pay the $100 fine.

Quick Note on Negligent Misrepresentation in Tennessee

One of the ways this blog helps me is as a research note. When I find a statement of an issue of law, I’ll post it here so I’ll know where to find it later.  Good for me, sort of boring for you. 

In the case of First Tennessee Bank, N.A. v. Shelby Village Mobile Home Park, LLC, et. al., the Tennessee Court of Appeals outlined the elements of the Tennessee tort negligent misrepresentation. Here’s what the Court said:

“A party pursuing a claim of negligent misrepresentation “must prove by a preponderance of the evidence that the defendant supplied the information to the plaintiff; the information was false; the defendant did not exercise reasonable care in obtaining or communicating the information; and the plaintiff justifiably relied on the information.” Hill v. John Banks Buick, Inc., 875 S.W.2d 667, 670 (Tenn. Ct. App. 1993) (citations omitted). The tort of negligent misrepresentation is most often recognized “in connection with business or professional persons who carelessly or negligently supply false information for the guidance of others in their business transactions.” Houghland v. Sec. Alarms & Servs., Inc., 755 S.W.2d 769, 774 (Tenn. 1988). Our Supreme Court has recognized, however, that, “[t]his theory of law . . . does not convert every breached promise or contractual undertaking into a basis for the rescission of otherwise valid contracts and the abrogation of their terms.” Id.”

 

Interesting Collections Questions Raised at 2014 General Practice Summit

I presented at the Tennessee Bar Association’s 2014 General Practice Summit today. My topic was “Collection in General Sessions Court.”

I’m always curious to see what topics attract questions, as well as what parts cause the listeners to take the most notes. Today’s questions were:

  • Whether General Sessions Courts allow post-judgment asset depositions and discovery? Yes, they do, although written discovery isn’t very helpful because a judgment debtor is likely to ignore it or not understand/make a full disclosure. I prefer to obtain this information in person, in an in-office deposition.
  • Is the failure to include an Affidavit fatal to a Motion for Slow Pay in Sessions Court? Maybe, but it depends on if the Judgment Debtor has the necessary asset/liability information with them in Court. If the debtor shows up on the hearing date with the information in hand, then the Judge will likely consider it. 
  • Can a litigant remove a matter from General Sessions? Yes, pursuant to Tenn. Code Ann. 16-15-732, a party can file a Motion and Affidavit that they have a defense or claim that is so complex or expensive to present that, in the interests of justice, it should be moved to Circuit Court, where a more deliberate process controls (with discovery, pre-trial pleadings, etc.).
  • Are legal briefs allowed in Sessions Court? Yes, but the Judges may not–and probably won’t–read the briefs in advance, due to their caseload. 

This was a well-run and well-attended Session, and I’ll definitely be back to teach in the future. It will be available online for viewing, so tune in and, in the meantime, feel free to call or email me if you have special collections issues. 

What to do about a Late Filed Garnishment Response: An Employer Remains Liable for Monies Paid

I file wage garnishments all the time on my Tennessee judgments.

If you know where a defendant works, Tennessee law allows a judgment creditor to garnish the debtor’s wages for payment toward the judgment. (See Tenn. Code Ann. § 29-7-101). Without boring you with the details (see this earlier post instead), an employer then is required to pay about 25% of the employee’s wages to the Court Clerk, who then holds the wages and disburses them to the creditor.

In the event the employer fails to respond to the garnishment, the creditor can seek a judgment against the employer itself for the full amount of the judgment (not just 25% of it), which, clearly, is an awesome way to actually get your money.

I’ve explained this process before: you get a “Conditional Judgment” against the employer and then you issue a Scire Facias, which requires the employer to come to Court and “show cause” why it shouldn’t be a “final” judgment.

This sounds great, but nine times out of ten, the employer shows up in response and files (finally) an answer. Under Tennessee case law, a late filed response is good enough to stop the process and avoid a “final” judgment being entered. Last week, the Tennessee Court of Appeals issued a great opinion in Emrick v Moseley (July 30, 2014), reviewing this entire process.

So, if a conditional judgment is considered a “wake up call” to prompt a response from an employer, then what do you do about the money that the employer should have paid to the Clerk? Two weeks ago, I had this exact case and argued that, under the existing case law, the cow was out of the barn and the employer’s only obligation is to comply with future obligations (i.e. withhold future wages).

I was wrong. That’s where the Emrick case is so good. Via dicta, the Emrick Court says that the employer has exposure under Tenn. Code Ann. § 29-7-112 for any money that it should have paid in, if it had timely responded.

So, no, you can’t get a judgment for the full amount of the debtor’s judgment, but you can get a judgment for the garnishment amounts that should have been withheld.

This is good news for creditor attorneys, and, even though I was wrong on this issue in the past, I’m glad to have been wrong.

A Reminder About Collection on Unpaid Legal Invoices: Wait a Year

This is an issue I’ve written about before, in Collection on Unpaid Invoices: One Really Good Reason to Wait a Year.  

But, I mention it again because the Tennessee Court of Appeals revisited the issue recently, in Scott Ostendorf, et. al. v. R. Stephen Fox, et. al. (Tenn. Ct. Apps.,  No. E2013-01978-COA-R3-CV, July 16, 2014).

In that case, the law firm committed possible malpractice regarding the perfection of a client’s lien security interest rights. The issue came to light in November 2008, and the client sued for malpractice in March 2012. Clearly, the lawsuit was filed more than one year after the facts alleged to be malpractice. 

This was a pretty easy one for the Court, which cited the Tennessee Supreme Court’s opinion at Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn. 1998):

“The statute of limitations for legal malpractice is one year from the time the cause of action accrues. Tenn. Code Ann. § 28-3-104(a)(2). When the cause of action accrues is determined by applying the discovery rule. Under this rule, a cause of action accrues when the plaintiff knows or in the exercise of reasonable care and diligence should know that an injury has been sustained as a result of wrongful or tortious conduct by the defendant. Shadrick v. Coker, 963 S.W.2d 726, 733 (Tenn. 1998).” 

As I said in my prior post, I’m not condoning legal malpractice, nor suggesting that you should play hard-ball in collection of unpaid invoices for services that involved malpractice. But, as I said in my last post, if you sue a client for unpaid bills, it’s more than likely going to result in that client claiming malpractice, whether it’s merited or not. 

If you think that such a claim will be raised from vindictiveness or tactic planning, then any lawyer should sit on the unpaid bills for services for at least a year. It’s an easy summary judgment / failure to state a claim upon which relief can be granted issue. 

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