In our previous posts in this series you should have already identified why you received the Bankruptcy Notice and what the deadlines are that might apply to you. In order to determine whether you should take any action related to this Notice, you now need to determine what you may have to lose.
If you are a creditor and you take no action, the debt owed to you may be discharged. In most cases, there is nothing a creditor can do to prevent the discharge, especially in a no-asset case. The right of the debtor to file for bankruptcy trumps your right to be paid by the debtor. However, there are some examples where taking action can result in payment (or at least non-discharge of your debt). Some examples where you may be able to prevent discharge of your debt, or all debts, is when the debtor committed fraud, when the debtor is trying to exempt property that should not be exempted, or when the debt is secured or otherwise protected from discharge (these are just some examples and is not intended to be an exhaustive list).
In any case where a creditor can prevent discharge, they are usually required to take some action to notify the court of their dispute and enforce their rights. For example, in the case of fraud, the creditor must file an adversary proceeding challenging the discharge of that debt based on fraud. In each individual case, you will have to determine if the value of preventing discharge of the debt is greater than the cost of enforcing that right. In many such cases the creditor may reach settlement with the trustee regarding payment.
There are also situations where a bankruptcy may affect your liability, but there is nothing you can do about it. For example, many codebtors will be affected by the bankruptcy of the debtor but have little rights to challenge the bankruptcy, because their liability is due to their own agreement with the creditor and they have no separately existing rights against the debtor. This is often the case when one spouse, or ex-spouse files for bankruptcy. Bankruptcy can have a major affect on debts owed by both spouses, and therefore property division, but if the divorce agreement doesn't appropriately address this possibility, the non-debtor spouse may have few or no options. For more information about cosignors or the interplay of divorce and bankruptcy you may want to review these other posts:
I am the primary borrower on a loan and my cosigner has filed for bankruptcy. What should I do to protect myself?
I co-signed a loan and the primary borrower has filed for bankruptcy. What should I do to protect myself?
4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #4: Jurisdiction over Your Assets
4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #3: Jurisdiction over Your Debts
4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #2: Domestic Support Obligations
4 Facts Your Divorce Attorney Should know about Bankruptcy? Fact #1: The Automatic Stay
Once you've identified your exposure in a bankruptcy, the last step is to determine if you need help in limiting that exposure. Should you hire a bankruptcy attorney to help you evaluate your claims?
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