Every creditor has the right to challenge your ability to write off your debts in bankruptcy. But none of them likely will. Why not?
For most people filing bankruptcy, every debt they intend to discharge (write off) will in fact be discharged.
There are two categories of debts that are not discharged in bankruptcy. The first category includes those special ones that Congress has decided for policy reasons simply should not be subject to a bankruptcy discharge. Among the most common ones are spousal and child support, most student loans, and many tax obligations. Assuming you are represented by a competent bankruptcy attorney, you will know before your case is filed if any of your debts fall into this category.
The second category of debts includes those that are discharged UNLESS the creditor files a formal objection to the discharge. Any creditor can raise an objection. But creditors very seldom do, for these reasons:
1. Although any creditor can challenge your discharge of its debt, it can only win such a challenge if it can prove that you acted inappropriately in certain very specific ways. In essence, the creditor has to show that you cheated it in how you incurred the debt. I won’t go into the details here of exactly what kind of dishonest behavior qualifies, but just be aware it simply does not apply to most people and their debts. So a creditor would just be wasting its time to raise a challenge when it had no legal grounds for doing so.
2. It would not just be wasting its time, but also a fair amount of money. The creditor’s objection has to be in the form of a lawsuit filed in bankruptcy court, which means paying a filing fee and at least hundreds of dollars for its attorney fees. Most creditors are sensible enough to not throw the proverbial good money after bad chasing a hopeless cause.
3. On top of that, bankruptcy law discourages creditors from raising challenges in two ways:
a. Debts are presumed to be dischargeable—at least if they do not fit any of the special nondischargeable debts in the first category referred to above. So the creditor has the burden of proving that the debt is not dischargeable, and the debt is discharged if it fails to provide the necessary evidence to meet that burden.
b. The creditor risks being ordered to pay YOUR costs and attorney fees for defending a challenge if you defeat the challenge. This is an added disincentive for a creditor to push a challenge when it has weak facts against you.
So no matter what a bill collector told you to try to get you not to file bankruptcy, creditors will usually not raise challenges because they usually don’t have legal grounds to do so. And even when a creditor believes it has some facts in its favor, the creditor takes significant financial risks in pushing the challenge.
However, creditors sometimes DO genuinely think your behavior in incurring the debt gives them grounds for filing a challenge to the discharge of its debt. Also the law can favor them when it comes to certain actions by you such as incurring credit card debt or cash advances in the months before filing bankruptcy, writing bad checks even inadvertently, and similar actions which might not seem very egregious.
Also, you may have a creditor who is motivated less by economic good sense than by a desire to cause you trouble, say an ex-spouse or former business partner.
The best way to deal with these situations is, first, to be completely honest with your attorney in answering every question he or she asks you, whether during a meeting or when providing information in writing. Be thorough in your responses. And second, if you have ANY concerns along these lines, make a point of voicing your concerns, and do so early in the process. Never hide the ball from your attorney. Particularly, if you wonder whether you’ve acted inappropriately with any of your creditors, or if you have any personal creditors who are carrying a grudge, discuss it with your attorney. Not only will you be much better protected from rude surprises. Often you’ll feel the relief of learning that you have much less to worry about than you had feared.