Debts that are dischargeable unless the creditor objects
Willful and Malicious Conduct
The creditor can file a formal complaint with the bankruptcy court to determine the nondischargeability of the debt. This is common in cases where the creditor suspects that the debtor committed fraud or acted willfully and maliciously. The question what exactly constitutes willful and malicious is being argued about by bankruptcy courts and depending on what court your bankruptcy is being filed your acts may or may not be viewed as falling into this category. It is important to know the particular views of the local bankruptcy trustee and judges. For example crimes for intentional injury to a person or property are typically considered willful and malicious. It is the intent to inflict a specific injury to a person or property that renders the behavior malicious.
Breach of Fiduciary Duty
Fraud can be claimed by creditors based on intentionally fraudulent behavior or on a false written statement about your financial affairs.
- You took out a loan telling the lender you had the intent to pay it back but in truth did not intent to repay it
- You wrote a check for against insufficient funds but told the person that the check was good
For the behavior to be considered fraudulent you must have the intent to deceive the other person and the other person must rely on our deceit.
All creditors must be listed in the bankruptcy petition and notified. The notice to the creditors is a prerequisite for your debt to be discharged. If you do not notify a creditor this debt will survive the bankruptcy unless one of the following reasons apply:
- The debtor knew that you were filing bankruptcy through other ways such as a phone call from you or from someone who informed them about your filing.
- Your assets are all exempt and there was no question whether one or all of your debts were not dischargeable.
If you committed fraud your debt will not be discharged. The creditor must prove that the debt was created by your dishonest act and that had you been honest the debt would not have been created. Some examples of typical fraud claims by creditors are:
- 1. False statement of your financial standing It must be a written statement such as a statement in a credit application. The statement must have been important enough for the creditor to extend credit to you. The creditor has relied on your false statement and the reliance was reasonable. You had the intent to deceive.