I. THE DISCHARGE
A. The notion of a “fresh start” is one of the three fundamental philosophical tenets
of the Bankruptcy Code. 1
B. The concept of the “fresh start” is premised on the notion that in most instances a
debtor ought to have a second chance with a clean slate free of personal liability
C. The bankruptcy discharge is the primary mechanism by which the Bankruptcy
Code effectuates the “fresh start”.
D. As such the bankruptcy discharge is the starting place for considering: “What if
anything can creditors do to enforce their pre-petition claims as personal liabilities
of the debtor?”
E. The obtaining of a discharge is frequently a central, often a controlling, goal of
the debtor in bankruptcy.
F. Matters surrounding the discharge and its consequences have an enormous impact
on debtors and creditors alike, throughout and after the bankruptcy process.2
G. What is a discharge in bankruptcy? 11 U.S.C. § 524(a) provides the answer:
“(a) A discharge in a case under this title–
(1) voids any judgment at any time obtained, to the extent that such judgment is a
determination of the personal liability of the debtor with respect to any debt discharged
under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of
such debt is waived
1 The other two fundamental tenets of the Bankruptcy Code can be referred to as the “Equity
Principle” (which deals with the question of how creditors’ claims are dealt with within the
bankruptcy system, and stands for the proposition that all claims similarly situated should be
treated the same), and the “Reorganization Principle” (which stands for the idea that, under
appropriate circumstances, a reorganized debtor, even one that does not pay all of its debts in
full, is better for the world than no debtor at all, and accordingly provides the philosophical
underpinnings for reorganizations under Chapters 11, 12 and 13, respectively). As it turns out,
most outcomes in bankruptcy that may otherwise be incomprehensible or inexplicable to the
general practitioner, can be at least rationalized, if not fully explained, by reference to one of the
three fundamental tenets, or principles, noted above. For example, the Bankruptcy Trustee’s
seemingly overreaching “strong-arm powers”, by which the Trustee might, for example, recover
a payment that was made to a creditor on the eve of bankruptcy under certain circumstances, can
be rationalized, if not swallowed whole, by reference to the “Equity Principle”.
2 And yet, ironically to some and mysteriously to others, the granting of a discharge in and of
itself has virtually no direct effect on the rights of many lienholders. See Section VI, below.
(2) operates as an injunction against the commencement or continuation of an action, the
employment of process, or an act, to collect, recover or offset any such debt as a personal
liability of the debtor, whether or not discharge of such debt is waived; and
(3) operates as an injunction against the commencement or continuation of an action, the
employment of process, or an act, to collect or recover from, or offset against, property
of the debtor of the kind specified in section 541(a)(2) of this title that is acquired after
the commencement of the case, on account of any allowable community claim, except a
community claim that is excepted from discharge under section 523, 1228(a)(1), or
1328(a)(1), or that would be so excepted, determined in accordance with the provisions
of sections 523(c) and 523(d) of this title, in a case concerning the debtor’s spouse
commenced on the date of the filing of the petition in the case concerning the debtor,
whether or not discharge of the debt based on such community claim is waived.”
H. Notwithstanding discharge in bankruptcy, it is not impermissible voluntarily to
repay a discharged debt. 11 U.S.C. § 524(f).
I. However, nothing in the commencement of voluntary repayments obligates the
debtor to continue making any further payments. Nor does the commencement of
voluntary repayments relieve the creditor from the proscriptions of the discharge
J. The discharge generally is granted on the 61st day of after the first date scheduled
for the Meeting of Creditors, but counsel is cautioned to make his or her own
determination, in each specific case, as to the entry of discharge in any particular
II. VIOLATIONS OF THE DISCHARGE INJUNCTION
A. The discharge affects not only the debtor, but also directly affects and impacts on
each of the debtor’s creditors.
B. This is because the discharge acts as an injunction. See11 U.S.C. § 524(a)(2) and
(3), quoted supra at Section I.B.
C. Willful violations of the discharge injunction are treated as a civil contempt of
D. Selected cases finding civil contempt for violation of the discharge injunction:
Hubbard v. Fleet Mortgage Co., 810 F.2d 778 (8th Cir.1987); In re Atkins, 176
B.R. 998 (Bankr.D.Minn.1994); In re Bowen, 89 B.R. 800 (Bankr.D.Minn.1988);
In re McGovern, 295 B.R. 897 (Bankr.D.Minn.2003); In re Howard, 307 B.R.
E. While the discharge injunction is very broad, it is not without its limits. What
follows is a list of cases where the court found that the creditor’s action was, for
one reason or another, outside of the scope of the discharge injunction. Do not be
deceived by the length of the list into believing that there are many acts that fall
outside the scope of the discharge injunction; the length of the list likely stands
for nothing more than the proposition that unique fact patterns tend to get
litigated. If, as creditor’s counsel, you think that what you are about to do does
not violate the discharge injunction, think again, and if you still think so, give
serious thought to consulting with an expert before sticking your neck out. That
said, here is a partial list of some cases that have found no violation of the
discharge injunction under the particular facts presented: Brinkman v. City of
Edina, 123 B.R. 318 (Bankr.D.Minn.1991); LaBule v. Minneapolis Public
Housing Authority, 250 B.R. 690 (Bankr.D.Minn.2000); Annen v. Annen, 246
B.R. 337 (8th Cir. BAP 2000); DuBois v. Ford Motor Credit Company, 276 F.3d
1019 (8th Cir. 2002) (but see In re Arnold, 206 B.R. 560 (Bankr.N.D.Ala.1997,
whose facts the 8th Circuit distinguishes from those in DuBois); Swain v.
Dredging Inc., 325 B.R. 264 (8th Cir. BAP 2005); Everly v. 4745 Second Avenue,
Ltd., 346 B.R. 791 (8th Cir. BAP 2006).
III. REAFFIRMATION AGREEMENTS AND THEIR REQUIREMENTS:
VOLUNTARILY CHOOSING TO DECLINE THE DISCHARGE AS TO A
PARTICULAR DEBT BY AGREEMENT UNDER 11 U.S.C. § 524(C)
A. Under certain limited circumstances, a debtor can enter into an agreement with a
particular creditor to “reaffirm” what would otherwise have become a discharged
debt. To be enforceable, such agreements must satisfy stringent statutory
requirements and judicial scrutiny, as described further below.
B. While routinely utilized in certain situations involving debt secured by non-luxury
collateral that is worth no less than the debt to be reaffirmed, in all other situations
reaffirmation of debt that would have otherwise been discharged is a disfavored
procedure that may not pass judicial muster. (More on the mustering of the
judiciary, in this context, in a moment.)
C. Reaffirmation agreements are tricky, and difficult, both procedurally and
substantively. This is no accident, since the net effect of a reaffirmation is to
undo the very discharge that is a central component of the bankruptcy process in
the first place.
D. Procedurally, the reaffirmation agreement must be entered into in conformity with
a prescribed form, containing required disclosures and other terms, all of which
must be executed and filed with the court within a certain deadline, and which
may in some circumstances then be followed by a hearing before the judge
wherein the judge determines whether or not to approve or disapprove the
E. For full detail regarding the required procedures and form, see 11 U.S.C. §§
524(c-d), (f), (k-m), Fed. R. Bankr. P. 4008 (effective 12/1/08), and Local Bankr.
R. (D. Minn.) 4008-1, and Form 240A – Reaffirmation Agreement (aka Local
Form 4008-1 (Bankr. D. Minn.
F. Substantively, it is important to have a good understanding of what will and what
will not withstand scrutiny and be approved. This is especially so if an approval
hearing is required before a bankruptcy judge. There are probably few moments
that are more embarrassing to a practitioner than to show up at a reaffirmation
hearing and have the judge lecture your client on why your client will not be
permitted to enter into the reaffirmation agreement that you, as debtor’s counsel,
have participated in creating. As a general rule of thumb, if (a) the debt to be
reaffirmed is secured by collateral (i) that is not a luxury item (note that for these
purposes Harleys and Hummers are the definitive luxury items under most
circumstances), (ii) that is genuinely necessary for the debtor to keep, (iii) that
cannot be replaced on more favorable terms through another borrowing source,
and (iv) that is worth no less than the debt to be reaffirmed, and if (b) the terms of
the reaffirmation are such that (i) the interest rate is appropriate to the
circumstances, (ii) the debtor can afford the payments and (iii) are not otherwise
onerous, the reaffirmation agreement is likely to be approved. In all other
instances, consult with an expert before throwing you and your debtor client
before the court.
IV. CHALLENGING THE DISCHARGE AS TO A PARTICULAR DEBT:
“DISCHARGEABILITY” LITIGATION UNDER 11 U.S.C. § 523
A. Notwithstanding the general philosophical underpinnings of the concept of the
discharge, which is to give a debtor a “fresh start”, Congress has determined that
there are certain debts which should not be discharged by virtue of the nature of
B. There are nineteen such categories of debts. They are listed at 11 U.S.C. § 523(a).
C. All but three of the nineteen categories of debts that are excepted from discharge
under 11 U.S.C. § 523(a) are “self-effectuating”. This means that no action on the
part of the creditor is required before the discharge is entered, and the subject
debts are excepted from discharge simply because of the nature of the debt.
Everly v. 4745 Second Avenue, Ltd., 346 B.R. 791, 795 (8th Cir. BAP 2006).3
3 One of the self-effectuating exceptions to discharge is for “domestic support obligations” as
that term is defined at 11 U.S.C. § 101 (14A); see 11 U.S.C. § 523(a)(5); see also 11 U.S.C. §
523(a)(15) as to other dissolution-related obligations. Another of the self-effectuating exceptions
is for death or personal injury caused by the debtor’s operation of a motor vehicle, boat or plane
while intoxicated by liquor, drugs or other substances; see 11 U.S.C. § 523(a)(9). Other
notables among the sixteen self-effectuating exceptions to discharge are debts for certain taxes,
as well as fines or penalties to governmental units (see 11 U.S.C. §§ 523(a)(1) and (7)); debts
incurred to pay certain taxes, fines or penalties (see §§ 523(a)(14), (14)(A) and (14)(B)); debts
for certain student loans unless failure to discharge the debt would result in undo hardship to the
debtor or the debtor’s dependents (see 11 U.S.C. § 523(a)(8) and see also Section IV.O. infra.);
and debts for certain types of loans owed to certain pension, profit sharing, stock bonus or other
plans (see 11 U.S.C. § 523(a)(18)).
D. Notwithstanding that sixteen of the nineteen categories of such debts are “selfeffectuating”,
there can still be litigation over whether a particular fact pattern fits
within one of those sixteen categories. See, for example, Everly, supra.
E. The three “non-self-effectuating” categories of debts that may be excepted from
discharge are enumerated at 11 U.S.C. § 523(a)(2), (4), and (6). In a nutshell,
these involve debts incurred by fraud, defalcation in a fiduciary capacity, or
willful and malicious injury to property rights.
F. In order to prevent a debt that falls within the scope of 11 U.S.C. § 523(a)(2), (4),
or (6) to be excepted from the discharge, the creditor must commence a legal
action (an “adversary proceeding”) by filing a complaint in bankruptcy court
within a strict statutory deadline. (Generally the deadline set to run out sixty days
from the date that the Meeting of Creditors was first scheduled, but counsel is
cautioned to make his or her own determination, in each specific case, as to the
running of the deadline.) Extensions are rarely, if ever, granted, and if granted,
are only granted before the running of the initial deadline. (The one exception is
by consent of the parties and their counsel which is reached, presented to the court
and acted upon before the running of the initial period.)
G. Nondischargeability litigation proceeds on a very truncated timeline. In virtually
all instances the court will set a Scheduling Order. Usually all discovery must be
completed within sixty days. If a case is complicated or there are other reasons
justifying a longer discovery period, counsel will need to take this up with the
H. In due course, or sometimes at the outset, the court will issue a Trial Order. All
parties are required to submit trial memoranda, as well as marked copies of
exhibits. Consult with experienced counsel for further detail.
I. The plaintiff bears the burden affirmatively to prove facts to satisfy all the
recognized elements of the exception to discharge under which they are
proceeding. In re Scarborough, 171 F.3d 638 (8th Cir. 1999). Proof must be by a
preponderance of the evidence. Grogan v. Garner, 498 U.S. 279 (1991).
J. Selected cases as a starting point for analyzing cases under §523(a)(2)(A)
(actual fraud, etc): Field v. Mans, 516 U.S. 59 (1995); Grogan v. Garner, 489
U.S. 279 (1991); Foust v. Foust, 52 F.3d 766 (8th Cir. 1995); Neumann v.
Neumann (In re Neumann), 374 B.R. 688 (Bankr.D.Minn.2007); Northern State
Bank of Virginia v. Hames (In re Hames), 53 B.R. 868 (Bankr.D.Minn.1985); Fee
v. Eccles (In re Eccles), 407 B.R. 338 (B.A.P. 8th Cir. 2009)(Mahoney, J.); Murrin
v. Scott (In re Scott), 403 B.R. 25 (Bankr.D.Minn.2009)(Kishel, J.); R & R Ready
Mix, Inc. v. Freier (In re Freier), 604 F.3d 583 (8th Cir. 2010); Treadwell v.
Glenstone Lodge, Inc. (In re Treadwell), 637 F.3d 855 (8th Cir. 2011); Medlock v.
Meahyen (In re Meahyen), 422 B.R. 192 (Bankr.D.Minn.2010)(Kressel, J.); SE
NEB Coop. Corp. v. Schnuelle (In re Schnuelle), 441 B.R. 616 (B.A.P. 8th Cir.
K. Selected cases as a starting point for analyzing cases under § 523(a)(2)(B)
(financial statement fraud): Field v. Mans, 516 U.S. 59 (1995); First National
Bank of Olathe, Kansas v. Pontow, 111 F.3d 604 (8th Cir. 1997); R & R Ready
Mix, Inc. v. Freier (In re Freier), 392 B.R. 779 (Bankr.D.Minn.2008); IFG
Leasing Company v. Harms (In re Harms), 53 B.R. 134 (Bankr.D.Minn.1985);
Northland National Bank v. Lindsey (In re David P. Lindsey), 443 B.R. 808
(B.A.P. 8th Cir. 2011); Vermillion State Bank v. Scott (In re Scott), 2011 U.S. Dist.
LEXIS 33279 (D. Minn. 2011).
4 One subset of the “actual fraud” nondischargeability cases are the credit card cases, which
were very popular for a time, but have recently waned in frequency. In short, the credit card
nondischargeability cases turn on whether an insolvent debtor’s use of a credit card, particularly
on the eve of bankruptcy, should be nondischargeable under §523(a)(2)(A). Has there been a
representation? Has the issuer justifiably relied on any such representation? How should
damages be computed? For an encyclopedic dissertation covering all sides of the credit card
issues, see L.A.Capitol F.C.U. v. Melancon, 223 B.R. 300 (Bkrtcy.M.D.La.1998). In a nutshell,
there are at least three schools of thought covering the various issues. One holds that, at least
until the credit card usage is restricted by the issuer, the issuer assumes the risk of credit card
abuse; hence, no reliance; hence no case. See First Nat. Bank of Mobile v. Roddenberry, 701
F.2d 927 (11th Cir. 1983); In re Burdge, 198 B.R. 773 (B.A.P. 9th Cir. 1996). Another more
frequently followed view finds that each time a debtor uses a card, the debtor makes an “implied
representation” that he or she has the ability and intent to repay. See, for a local example, In re
Barnacle, 44 B.R. 50 (Bankr. D. Minn. 1984, criticized by Judge Kishel in Stearns, infra. Yet
another approach looks to the “totality of the circumstances”. See In re Shartz, 221 B.R. 397
(B.A.P. 6th Cir. 1998.) See in particular In re Dougherty, 84 B.R. 653 (B.A.P. 9th Cir. 1988).
Although Dougherty was criticized on other grounds by the Supreme Court in Grogan v. Garner,
498 U.S. 279 (1991), the “Dougherty factors” are still used by courts in the Eight Circuit–
including Judge Kishel in Star Bank, N.A. v. Stearns (In re Stearns), 241 B.R. 611 (Bankr. D.
Minn. 1999)–and by the Bankruptcy Appellate Panel in Universal Bank, N.A. v. Grause (In re
Grause), 245 B.R. 95, 98 (B.A.P. 8th Cir. 2000). The Dougherty factors are as follows: the
length of time between the charges made and the filing of bankruptcy; whether or not an
attorney has been consulted concerning the filing of bankruptcy before the charges were made;
the number of charges made; the amount of the charges; the financial condition of the debtor at
the time the charges are made; whether the charges were above the credit limit of the account;
whether the debtor made multiple charges on the same day; whether or not the debtor was
employed; the debtor’s prospects for employment; the financial sophistication of the debtor;
whether there was a sudden change in the debtor’s buying habits; and whether the purchases were
made for luxuries or necessities. For a case involving the related concept of “credit card kiting”,
see In re Eashai, 87 F.3d 1082 (9th Cir. 1996).
L. Practice pointer: Note that fraud must be pleaded with particularity.
M. Selected cases as a starting point for analyzing cases under § 523(a)(4)
(fiduciary defalcation, etc.): Hunter v. Philpott, 373 F.3d 873 (8th Cir. 2004);
Tudor Oaks Limited Partnership v. Cochrane (In re Cochrane), 124 F.3d 978 (8th
Cir. 1997); First National Bank of Fayetteville, Arkansas v. Phillips (In re
Phillips), 882 F.2d 302 (8th Cir. 1989); Jafarpour v. Shahrokhi (In re Shahrokhi),
266 B.R. 702 (Bankr.D.Minn.2001); Murrin v. Scott, supra; In re Nail, 680 F.3d
1036 (8th Cir. 2012).
N. Selected cases as a starting point for analyzing cases under § 523(a)(6)
(willful and malicious injury): Kawaauhau v. Geiger, 523 U.S. 57 (1998);
Fischer v. Scarborough (in re Scarborough), 171 F.3d 638 (8th Cir. 1999); Porter
v. Porter (In re Porter), 539 F.3d 889 (8th Cir. 2008); Patch v. Patch (In re
Patch), 526 F.3d 1176 (8th Cir. 2008); Siemer v. Nangle (in re Nangle), 274 F.3d
481 (8th Cir. 2001); Werner v. Hoffman, 5 F.3d 1170 (8th Cir.1993); First
National Bank of Fayetteville, Arkansas v. Phillips (In re Phillips), 882 F.2d 302
(8th Cir. 1989); Barclays Am./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875
(8th Cir. 1985); Gadtke v. Bren (In re Bren), 284 B.R. 681 (Bankr.D.Minn.2002);
Masloski v. LaCasse (In re LaCasse), 23 B.R. 214 (Bankr.D.Minn.1983); Murrin
v. Scott, supra.
O. Selected cases as a starting point for analyzing cases under §
523(a)(8)(student loan nondishargeability). In these cases the debtor, not the
creditor, brings the action. See In re Reynolds, 425 F.3d 526 (8th Cir. 2005); Long
v. Educ. Credit Mgmt. Corp (In re Long), 322 F.3d 554 (8th Cir. 2003);
Educational Credit Management Corp. v. Jesperson, 571 F.3d 775 (8th Cir.
2009)(Loken, C.J.); Halverson v. Dep’t of Educ. (In re Halverson), 401 B.R. 378
(Bankr.D.Minn.2009)(Kressel, J.); Brooks v. ECMC (In re Brooks), 406 B.R. 382
(Bankr.D.Minn.2009)(O’Brien, J.); United Student Aid Funds, Inc. v. Espinosa,
130 S. Ct. 1367 (2010); Sederlund v. Educ. Credit Mgmt. (In re Kellie K.
Sederlund), 440 B.R. 168 (B.A.P. 8th Cir. 2010); Walker v. Educational Credit
Management Corporation (In re Walker), 10-2032 (8th Cir. 2011); Nielsen v. ACS,
Inc. (In re Nielsen), 473 B.R. 755 (B.A.P. 8th Cir. 2012).
P. A significant body of law has developed on the question of whether and to what
extent collateral estoppel applies in nondischargeability litigation (so as to avoid,
or take advantage of, as the case may be, the results of prior proceedings in state
court). For a starting place for authorities on this issue, see Porter v. Porter, 539
F.3d 889 (8th Cir. 2008); see also New York v. Khouri (In re Khouri), 397 B.R.
111 (Bankr.D.Minn.2008)(Kishel, J.); see also Tristate Ins. Co. of Minn. v.
Stewart (In re Stewart), Adv. 09-3092 (Bankr.D.Minn.2010)(O’Brien, J.).
V. CHALLENGING THE DISCHARGE IN ITS ENTIRETY AS TO A PARTICULAR
DEBTOR: DENIAL OF DISCHARGE LITIGATION UNDER 11 U.S.C. § 727
A. 11 U.S.C. § 727 provides, under certain circumstances, the debtor may be denied
the discharge in its entirety.5 This is not a self-effectuating provision and requires
the commencement of litigation. Again, stringent deadlines apply.
B. See, generally, Addison v. Seaver, 540 F.3d 805 (8th Cir.2008); see also Clark v.
Wilmoth (In re Wilmoth), 397 B.R. 915 (B.A.P. 8th Cir.2008 (Kressel, C.J.).
These decisions deal with 727 actions brought by trustees based on allegations of
pre-bankruptcy “planning” gone too far. Both cases deal with “planning” in the
form of transfers of non-exempt assets into exempt assets. In both instances the
trustee’s attempts fell short and the discharge stood. See, also, Sullivan v. Bieniek
(In re Bieniek), 417 B.R. 133 (Bankr.D.Minn.2009). For an interesting case on
revocation of discharge, see Doeling v. Coating Specialties, LLC (In re Chad R.
Toftness), 439 B.R. 499 (B.A.P. 8th Cir. 2010).
C. In the early days of the Bankruptcy Code, the utility of this remedy was explored
by creditors’ counsel with generally unsatisfactory results. Creditors’ counsel are
cautioned to consult with an expert before even thinking about resorting to this
remedy. Among other things, the statute prohibits settlements. Moreover, at the
end of the day, if the litigation is successful and the entire discharge is denied, the
debtor will owe all of his or her creditors, not just the creditor who spent the
money to bring the action.
D. The § 727 remedy continues to have vitality as an enforcement tool to protect the
sanctity of the system. If you are debtor’s counsel and your client is faced with a
§ 727 action, and you are not an experienced practitioner in the field, the stakes
are very high, arguably too high for you to learn on the job. Consider consulting
with and associating with experienced bankruptcy counsel.
VI. EFFECT OF THE DISCHARGE ON LIENS
A. The discharge itself does not prevent enforcement of a prepetition lien on assets
of the debtor.
B. A properly perfected lien that is itself not avoidable as a preference or as a
fraudulent transfer will under most circumstances pass through bankruptcy
C. The lienholder’s remedy is enforcement of the lien itself against the property
encumbered by the lien. Note, however, that the discharge does prevent
5 Prominent among the grounds for denial of discharge under 11 U.S.C. § 727 are (i) the
fraudulent transfer of assets, (ii) the fraudulent concealments of assets or information, (iii) the
failure to keep adequate books and records, (iv) the making of false statements in connection
with the case, and (v) the failure to cooperate with the court. Collier on Bankruptcy (15th Ed.) ¶
727.01 at notes 29 through 34.
enforcement of any rights, including deficiency rights, that would otherwise have
been available against the discharged debtor as a personal liability.
D. If your client is the holder of a lien on real or personal property, but the lien (i)
was not properly perfected under otherwise applicable non-bankruptcy perfection
law (such as real estate law or the UCC)6, or (ii) was perfected more than thirty
days after the transaction giving rise to the lien, but less than 90 days (or a year in
certain circumstances) before the commencement of the bankruptcy case7, or (iii)
was given for insufficient value or as a sham to hinder delay or defraud creditors8,
or (iv) is a judgment lien on exempt property, or is a non-possessory nonpurchase-
money lien on most kinds of exempt personal property9, it is lien
avoidance, not discharge, that you need to consider.
6 Here your problems start under 11 U.S.C. § 544, the dreaded “hypothetical lien creditor”
avoidance powers of the trustee.
7 Here your problems start under 11 U.S.C. § 547, the dreaded preference avoidance provisions.
8 Here your problems start under 11 U.S.C. § 548, the dreaded fraudulent transfer provisions, and
the same facts that give rise to your problems may also create problems for the debtor under 11
U.S.C. § 727, the denial of discharge provisions.
9 Here your problems arise under 11 U.S.C. § 522(f), a provision under which the debtor can
avoid many liens on exempt personal property. Note though, that this provision does not apply
to liens for domestic support obligations as that term is defined at 11 U.S.C. § 101 (14A).
This information is general in nature and should not be construed for tax or legal advice.