How to File an Ojection to Discharge a Debt in a Chapter 7 Bankruptcy

Certain debts are not dischargeable in bankruptcy, such as child support, some taxes, and debts that were secured by fraud. If you are the holder of a debt that you believe should not be discharged, you have the right as a creditor to file an objection to the discharge of the debt. By filing an adversary proceeding and going before the bankruptcy judge, you may be able to prevent the debt from being discharged in a Chapter 7 bankruptcy.

Instructions

Instructions:

1. Determine the grounds for objection. The Bankruptcy Code details specific instances in which debts are non-dischargeable. When filing an objection to discharge, you should review the Bankruptcy Code to be certain at least one of these particular circumstances apply. If they do not, you may be unable to successfully object to the discharge of the debt.

2. Prepare a Complaint objecting to the dischargeability of the debt in question. This is done in the form of an adversary proceeding, which is a type of civil litigation within the bankruptcy court. In the Complaint, you will detail the circumstances of the debt in question and why the court should deem it non-dischargeable. Upon filing the Complaint with the bankruptcy clerk in the district in which the bankruptcy is pending, you must request that the clerk prepare a Summons, which is a form that is served with the Complaint on the debtor.

3. Serve the debtor with the Complaint and Summons. This may be done by hiring a process server to deliver the document, by publication or by first class mail in certain circumstances. You must also serve the debtor’s attorney, if there is one.

4. Exchange pleadings and discovery. The opposing party will file an Answer to your Complaint and each party will have the opportunity to perform discovery against the other side. "Discovery" is an opportunity to obtain relevant documents or other information that may be in the possession of the opposing party to the suit, such as a contract or income information.

5. Attend a hearing before the judge. Once all discovery is complete, the judge will likely order a hearing to consider the arguments of both parties. At this time, you will have an opportunity to verbalize your arguments, call witnesses to testify, and present any relevant evidence to the court. The opposing party will have the same opportunity. Once all evidence is received, the judge will determine whether the debt should be discharged.

References

• Cornell Law School: Federal Rules of Bankruptcy Procedure Part VII. Adversary Proceedings
• Cornell Law School: Federal Rules of Bankruptcy Procedure 4004. Grant or Denial of Discharge
• Cornell Law School: 11A U.S.C. § 4004. Grant or Denial Of Discharge