Every once in a while, courts tell us explicitly how to do things. The 9th Circuit took its turn when it laid out how to get a violation of the debtor’s discharge before the court.
The narrow issue in Barrientos v. Wells Fargo, 09-55810,was whether the action against a creditor with a discharged debt should be brought as an adversary or as a motion. The 9th voted for a motion , reasoning that there already was an injunction (§524) and that the court that issued the injunction should be the one to enforce it.
Don’t miss the overview of distinctions between adversary proceedings, contested matters, and applications.
The issue that wasn’t discussed, since the appeal challenged the dismissal of the adversary proceeding by the bankruptcy court, was the nature of the stay violation alleged. The credit reporting agencies continued to report a debt discharged in bankruptcy. The debtor disputed the accuracy of the report and post discharge, former creditor Wells Fargo confirmed the accuracy of the report of outstanding debt.
That kind of behavior is rife. And without getting an accurate credit report, our clients have difficulty recovering from bankruptcy as they should.
Read this case, and if you are in the 9th circuit anyway, the path to the court house is illuminated.
It sounds like the bankruptcy case must be open for that type of remedy. If the case is already closed, could you reopen it for this purpose?
Absolutely you can reopen.
Malcom,
You can try to reopen the case for this purpose, but in the Ninth circuit authority holds that you do not have to and I have seen it denied:
In re Menk, 241 B.R. 896, 910 (9th Cir. BAP 1999)
Geoff
Open or closed, there* is* a remedy in bankruptcy court.
Sorry, Cathy, my earlier post was too simplistic.
The decisions I have seen since the Menck decision stated that the case didn’t need to even be re-opened to pursue discharge injunction violations.
Here are the comments from an Order Denying Reopening that a friend received:
*Reopening a case is not necessary for the debtor to file
adversary proceedings to enforce discharge injunction or seek
civil contempt. See In re Menk, 241 B.R. 896, 910 (9th Cir. BAP 1999) (Reopening associated with filing a discharge-related, postclosing adversary proceeding is not of jurisdictional
significance.); see also Collier on Bankruptcy, Paragraph
350.03[4], p. 350-11 (16th Ed., 2010) (reopening a case to enforce
the discharge injunction of section 524(a) is not necessary for
the court to render a decision because the court has jurisdiction
under 28 U.S.C. section 1334.) Debtor may file his adversary complaints without reopening the main case.
The Menck decision held that there is no need to reopen a case for an adversary complaint, and was decided before the 9th Cir held that discharge violations should be brought by Motion. Does this change the rule that you don’t have to reopen the case? Since it is a motion and not an adversary proceeding, it would seem the case would have to be reopened since the Motion depends on access to the Discharge which is part of the closed file.
I’m not sure what “access to the discharge” means? I don’t see that the court needs the case to be open to take judicial notice of the discharge.
This area of reopening is, in my experience, highly variable with two judges in the same division taking different approaches.
If you have a bench/bar committee where you practice, this would be a good issue for discussion.
I have an overpayment and a unemployment release pay to me with bankruptcy quittingvmy job prior to bankbankruptcy I had to explain myself and it was investigated prior to the first meeting of creditors letters went out from unemployment office if anybody had any problems with that it needed to be brought to my first meeting of creditors no claims were filed against me throughout the whole thing my bankruptcy discharged 2/19 I had an investigator re open it up 2/26 make up a whole bunch of stuff and it’s taking my check now for 3 months and charging me $15,000 owed money my trusty thinks I should open my bankruptcy up and fight and file charges against this as violationin the bankruptcy in junction can you help me with that my numbers 5:03 2009 9390 thank you
I’m currently going thru part one of hearing which is get in in my favor but the time with no checks is causing me to be worse of than prior to bankruptcy I feel like the I’m ready for a nervous breakdown