Debt and discharged BK

What is the name of your state? CA

We filed BK in 2001, and it was discharged in July 2001.

At the time of filing, I was unaware that my husband had a ongoing debt. It was for flying lessons, that he was taking. Approximately, 1 month after filing, and I found out about the new debt...we filed an amendment to the BK adding this flying lessons into the BK. He had taken lessons for about 3 weeks after we had filed the BK. When our BK was discharged, the flying lessons were shown on the BK as being discharged.

However, the organization that was providing the lessons, has filed a judgement against my husband for the amount of lessons, and all sorts of legal fees. The amount, is for the fees that he incurred after our original filing date. It is going to be in small claims court.

My question is...since the amount was discharged, are they able to go after this money from us? Are they able to sue him for the amount that was incurred after our original filing date, but before our amendment date?

[HomeGuru]

No, so tell them to go fly away.

[JETX]

Sorry, but I disagree with HG on this one.... the debts from the flying school before the filing would likely (read your filing) have been discharged. However, the new debts incurred AFTER the date of filing are not included in the discharge and would be valid and enforcable debts.

[HomeGuru]

My response was based on the writer amending the BK to include the entire debt (total amount ) of the flying lessons. If the total amount was shown on the BK petition and discharged the flying compnay would have no claim.

Yes, we filed an amendment to cover all the costs of the flying lessons, prior to the BK being discharged.

The only costs that are listed in the judgement that were not disclosed in the BK, are their charges for court fees, and atty fees.

[JETX]

Good point.

Clairification:
If your amended petition included the debt currently being pursued, it is possible that the amended creditor list with that amendment was not sent to the flight school. I would suggest you advise the flight school that the debt was included in the filing and was discharged. Include the court and case number. You might also advise them that federal law requires them to cease any efforts to collect a discharged debt.

However, if the debt was incurred AFTER the discharge, or was not included in the order, then the debt would still be due.

One other option.... it is very important that you review the filing and make sure that the debt was included. Most trustees (at least the ones I have dealt with) would not normally include 'new' debts incurred after the filing.... even if included on an amended filing.

Yes the flight school recieved a copy of the amendment. We had to have a copy served on them, and on the trustee, ourselves. They have acknowledged receipt of it, but they have an atty that is "representing" them, that says we still owe them the money...even though he has seen the paperwork, showing that this amount had been discharged.

Is there any advice you could give as far as how we should prepare for the hearing? I mean, we figured that since it was included on the BK discharge that it was discharged, but since they are saying it is not, how do we prove that it is not collectable? My husband has to prepare a response for the court, and he has to file it in approx 2 weeks. (I was mistaken when I said it was a small claims hearing...they are actually trying to pursue this into a whole trial hearing).

I mean, would this be something that a judge would just look at, look at our file date, look at our amendment date, and then at our discharge date, and say that they have no recourse? Is there anything that you would suggest we have on hand, to prove our side?

We have called several atty's in our area, and about 90% of them, just tell us, that they don't do "that" sort of thing, and end the call or meeting. I have looked on the net for info about this, and since I am not in the legal business, I am having a hard time deciphering most of the lingo in laws and rules!

[JETX]

If the case is as you claim.... and the debt was truly discharged by the court, simply argue that in court.

However, I have to think that it would be unlikely for the opposing attorney to have made that statement and to proceed to court if the debt had in fact been discharged. I suggest you re-confirm the discharge with your bankruptcy attorney. Something is clearly missing here.

[HomeGuru]

I agree JETX, something seems strange.

[djohnson]

Although I'm in agreement with JETX on this I think there is going to be specific information needed to give you a better answer. What was the terms of the flight school payments? Were they monthly? Post petition debt would be anything after the file date not the amended date unless the amended specified something other that adding the creditor. Did he continue to take the lessons after the file date? If he did then it would be considered post petition. What was the amount included in the bankruptcy compared to the terms? If you claimed more than he owed at that time and continued to take the lessons post petition I think they have a good case. It might be like having a 5000.00 balance on a credit card and saying you owe 7000.00 and thinking you can go out and spend that other 2000.00 after its discharged. I think unless there is more than meets the eye here you will not have a good chance with this. But that is just my opinion. Usually I see this happen with utility bills that are prorated and the amounts argued over. It always go by the file date in those many that I have seen.

Let me check with my husband about the terms and stuff...because he was the one that had done it.

Yes, he did continue lessons after the original file date. He filed the amount on the Amendment, after he quit the lessons, and filed for more than he owed (at the time, he was not positive how much he owed). They were not listed anywhere on our BK, until we made the amendment.