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Brent Blanchard
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
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Experience:  Twelve years experience in all aspects of debtor & creditor BK.
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NYS Chapter 7 filing- how does a co-debtor dispute any listings

Resolved Question:

NYS Chapter 7 filing- how does a co-debtor dispute any listings on Schedule H. If it is a married couple, but separated, and the wife is filing, how does the husband dispute- If the wife had title to the home in her name only, is the husband considered a codebtor?
If the wife has now left the house, and the husband is living there, and part of the divorce will be to transfer title to husband, is he liable for previous debts.
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Brent Blanchard replied 1 year ago.
Thank you for your question.

A bankruptcy filing of any sort is not supposed to change whether anyone other than the Debtor is liable for any debt. It *does* change whether a creditor can go after the Debtor, so there is a huge incentive to go after anyone else who is already on the hook for a debt listed on the bankruptcy schedules (paperwork).

Whether someone is a co-debtor depends on the contract paperwork with the creditor. Things like co-signing on a debt WILL make that person a co-debtor, regardless of how the BK Debtor lists things on the schedules. A mistake by the Debtor on the BK paperwork is not necessarily binding on a third-party co-debtor.

Please know why the answer is "it depends"--people take title to land all the time in their own names, while multiple people might be on the LOAN used to finance the purchase of that land. Again, see the debt contract paperwork with the creditor.

In community property states (not NY), debts taken on by only one spouse *for the benefit of the marital "community"* CAN and often ARE laid upon the non-contracting spouse. This is more difficult to do in non-community property states, but can still happen if the debt was for something truly necessary like food, housing, medical services or medicines or other "necessaries". Whether that would truly happen depends on a lot of facts that we cannot review in an on-line setting and which the Terms of Service here prohibit us from analyzing the law to your specific situation.

Since property and debt divisions in divorces are enforceable ONLY between the parties and are not legally binding on the creditor, adding a bankruptcy to the situation can trigger all sorts of legal ways for a creditor to try to go after the non-Debtor spouse or ex-spouse. The remedy under that situation is, as you suspect, in the bankruptcy case. The good news is that child support and spousal support arrears are NOT dischargeable in bankruptcy, and the "discharge" does not affect those financial obligations between ex-spouses. There is further good news that in Chapter 7 cases, most property settlement agreements are also NOT dischargeable between the spouses.

The bad news is that if the BK paperwork shows a desire to get the property settlement agreement debt discharged, the way to challenge that is through an "adversary proceeding"--a lawsuit in the BK court asking a judge to rule on the question of dischargeability. These usually go on for months or even years after the rest of the BK case is over and everything else that's undisputed as to dischargeability has indeed been discharged.

Like any lawsuit, if an adversary proceeding is needed, professional assistance is HIGHLY recommended.

Thank you.

BAB.
Brent Blanchard, Bankruptcy Attorney
Category: Bankruptcy Law
Satisfied Customers: 1905
Experience: Twelve years experience in all aspects of debtor & creditor BK.
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