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