Amended Discharge Orders SDNY
Bankruptcy Court
Since the end of August 2017 through
today the U.S. Bankruptcy Court for the Southern District of New York (SDNY Bankruptcy Court) has been sending electronic notices of
the filing of Amended Discharge of Debtor Order of Final Decree
in our clients’ previously closed (and successful) chapter 7 personal
cases. The Court has mailed out copies to the debtors (our clients) as
well as the service list in each case. Some of our bankruptcy attorney
colleagues have reported they are experiencing the same thing.
We have received calls from
concerned clients regarding receipt of an Amended Discharge Order from the SDNY Bankruptcy Court. The SDNY
Bankruptcy Court has not posted any information about this on its
website. For all the hundreds of clients that Vern Lazaroff has
successfully represented in personal bankruptcy cases over the years, please be
aware that no action on your part is necessary in response to this
order. Please view this as a technical correction that the SDNY Bankruptcy Court is doing. It does not change
any of the advice we previously provided our clients. For more
information continue reading below.
The Amended Discharge Orders all say the same thing as follows:
It has been brought to the Court’s
attention that the Discharge of Debtor Order of Final Decree entered in this
case on January 15, 2010 was not in compliance with The Bankruptcy Abuse
Prevention and Consumer Protection Act of 2005 due to a clerical error; and the
Debtor having been required to comply with the Bankruptcy Code in effect at the
time the discharge order was entered, see Commissioner of
Administrative Services v. Spell (In re Spell), 650 F.2d 375, 377 (2d Cir. 1981); it
is hereby
ORDERED that pursuant to the power of this
Court under 11 U.S.C. § 105(a) and Rule 60(a), which
states that “[t]he court may correct a clerical mistake or mistake arising
from an oversight or omission whenever one is found in a judgment, order,
or other part of the record. The court may do so on motion or on its own, with or
without notice;” and is made applicable to bankruptcy cases under Federal Rule
of Bankruptcy Procedure 9024, the order entered by the Court on January 15,
2010 is amended nunc pro tunc [means retroactively] to comply with the
Bankruptcy Code in effect at the time the discharge order was entered
This is something the SDNY Bankruptcy Court is apparently doing of its own accord
in all of the personal bankruptcy cases in which discharge orders (i.e., orders
wiping out debts at the conclusion of the case) were entered after the
effective date of a 2005 amendment to the Bankruptcy Code known as The
Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCA).
The reason for this is to clarify
that the Discharge Orders that were previously entered after BAPCA’s effective date (which was of 4/20/05 for certain
provisions and for other provisions later in 2005) were Discharge Orders that
were entered based on the law then in effect which was BAPCA.
As a reminder, in addition to
bankruptcy, our practice includes real estate, personal injury and estate
planning. If you would like to discuss
any of these areas with us call 24/7 (845) 856-5335 NY (570) 686-2824 PA