When Delaying The Discharge May Benefit The Debtor

Ever read, much less used, FRBP 4004(c)(2)?

Have to say I’d done neither until Judge Christopher Klein mentioned it at a bankruptcy seminar earlier this year.  He told the group that he had learned about it from a pro per who cited it to him in a dispute in a Chapter 7.  So what’s this obscure rule?

Subsection(c)(2) allows the debtor to move to delay entry of the discharge in his case. The result is that the court continues to have jurisdiction and the bankruptcy case does not get closed out from under an action pending in the case.

Judge Klein’s pro per used it to maintain jurisdiction over a mortgage servicing dispute.  I could have used it when I was seeking attorneys fees for a relief from stay motion brought and prosecuted for months by a party without standing.  I found myself in court being told that the judge would not rule on my request since the clerk had closed the case and he was without jurisdiction.

I have subsequently made use of 4004 to prevent entry of the discharge while we scurried to get reaffirmation agreements on file.  The cases are pretty consistent that the agreement needs to be filed before entry of discharge and that you cannot reopen the case or set aside the discharge to file such an agreement.  So, if you want to reaffirm, and time is tight, consider a motion under 4004 to delay the entry of discharge.

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