What if you Forgot to List a Creditor on your Bankruptcy Forms?


Category: Personal Bankruptcy (33) comments

Filing for bankruptcy is a stressful time. As part of the process you are asked to provide your bankruptcy trustee with a list of your creditors, how much you think you owe on each debt and a list of your assets. Can you forget one or two? It happens, and the fact that a creditor didn’t appear on your official bankruptcy documents does not, in and of itself, cause any problems.

What happens next depends on the circumstances of the omission.

forgot creditor bankruptcy formsThe most common scenario is that someone honestly forgets about one of their debts when filling out their bankruptcy application. A typical example might be an overdrawn bank account that they haven’t used for a few years. If you become aware of the debt while you remain in bankruptcy, all you need to do is inform your trustee so that the creditor can be sent the appropriate documents. In the majority of these cases the creditors actually find out about the bankruptcy themselves (usually because of another debt with you) and contact the trustee on their own. Regardless, no harm was done and the debt simply gets included in your bankruptcy along with all of your other debts.

But what if you don’t discover the debt until after you have completed your bankruptcy? In these cases, your creditor is entitled to the same rate of return that all of your other creditors received from the bankruptcy. For example, if all of the previously disclosed creditors received $0.10 on the dollar for their debts then the newly discovered creditor is entitled to the same $0.10 on the dollar for their debt. Since the vast majority of personal bankruptcy result in no payments to a person’s creditors, in most cases the new creditor is entitled to nothing. You simply send them proof of the bankruptcy, proof you have completed it properly, and proof of what the other creditors received.

A less common and more problematic scenario is one in which the person that filed for bankruptcy deliberately left a creditor off their list. This can result in a lot of trouble.
If the creditor can prove the person that filed ought to have reasonably known about the debt and therefore in all probability made a conscious decision not to list the debt on their bankruptcy forms then the creditor can argue that the debt should survive the bankruptcy process. Further, if this matter is brought before the Court, the Court could decide to question the original intent of the person that filed for bankruptcy. The Court has the right to impose whatever terms they want in order to complete a bankruptcy. In extreme cases the Court has the right to refuse to grant a discharge from bankruptcy if they think the person that filed has been less than honest in their dealings with their creditors, their trustee, or the Court.

So, for the people that made an honest mistake, the fact that a creditor didn’t appear on the official documents does not cause any serious problems. You should not be worried if you can’t recall every single debt when talking to your trustee.  Make your best efforts, and advise your trustee ahead of time if you are concerned. They can provide you with some information on how to complete your bankruptcy forms as fully and honestly as you can.

 

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  1. Rene

    Hi there,

    I have a question. I was discharged from Bankruptcy on April 7, 2012. I just received a notice from revenue Quebec stating that I owe them back taxes of $2134 dating from an invoice that they sent me on September 28, 2011. The invoice was sent while I was in my 9 months of bankruptcy. Is there anyway that this can be included in my bankruptcy from 2012?

    Thank you,

    Rene

    Reply
  2. Matthew

    Hi! I have a question as well.

    I was discharged from bankruptcy way back in June 2010. I included all my debtors, including “Company A”, “Company B” and “Company C”.

    To my shock I’ve just received a call from an agent of “Company B” who has since purchased my account for debt collection purposes. They do not dispute that I included “Company B” in my bankruptcy, but they say assert that I owe them for a separate (pre-declaration of bankruptcy) debt that I did not include in my bankruptcy that is owed to “Company B”, and, consequently, I am still liable for this separate debt. (Debt was an unsecured loan of sorts with a private for-profit financial institution.)

    Obviously I highly doubt doubt the validity of this claim because as far as I’m aware, the most important thing when declaring bankruptcy is including all the creditors that you owe, not the amounts owed.

    Thank you

    Reply
    1. J. Douglas Hoyes

      Hi Matthew. Sounds like a scam to me. All of the debts that existed at the time of your bankruptcy are included, whether or not they appeared on your original bankruptcy paperwork. Regardless, Company B was aware of your bankruptcy, so the fact that they sold your debt to a debt buyer has no bearing on this. I don’t see how their claim can be valid. It’s more likely that the debt buyer wants to try to recover some money, so they are telling you lies in the hope that you will pay them something.

      Reply
  3. Maryam B.

    My situation is similar to Matthew’s above and I’m wondering if your response also applies to me.
    In my 2006 bankruptcy, I listed all accounts in my name (3) with TD- Canada Trust and I paid all fees required and was granted an Absolute Discharge in 2007. I have just been contacted by FDR who claim I owe for a 4th TD account that I neglected to list in 2006. (It was a joint account with another person and I’d forgotten about it.) The amount owing in 2006 was $1080 and FDR now wants $2118.41 to settle it, “due to interest charges accumulated”.
    Since TD-Canada Trust was notified of my bankruptcy and received a portion of the debt owing on each of the 3 accounts listed as part of the bankruptcy settlement, it is clear they knew about my bankruptcy. I have sent copies of my bankruptcy papers to FDR, showing the payments made and the Absolute Discharge Notice but they claim I still owe them for the account not listed.
    What are my options at this point?

    Reply
    1. J. Douglas Hoyes

      I would suggest you review this with your trustee, because I agree with you; the debt existed at the date of your bankruptcy, and since TD was aware of your bankruptcy, it should be included.

      Given the age of the debt, it is highly unlikely that the collection agency will sue you for it (since in most provinces the limitation period is two years, and this is far past that), so the simple solution may be to advise the collector that the debt was included in your bankruptcy, and regardless it is past the limitation period. That should eventually stop the phone calls.

      Reply
  4. Bitabella

    Thank you for being there.

    I declared bankruptcy in 2012 as a physician who went through depression and was not able to work having to give up my license. I included all my debt, including 5K taxes owed on my medical corp and provided them the binder.

    I received absolute discharge in late 2014. CRA contacted me about 6 months ago asking for taxes owed on corp. they are aware of my bankruptcy as I owed some personal taxes. Bankruptcy trustee told me they have included it and CRA should not contact me and they would clear it. Fast forward to moe, CRA contacted me again saying trustee did not file taxes for 2012, 2013 or 2014. This time I emailed my trustee and she wrote that they did not file taxes as my corp did not declare bankruptcy.

    I wrote back I trusted their advice, provided all info including corp binder and what I owed. I was the sole shareholder with no money left in corp, with no medical license to keep the corp and trusted they would do what is needed to be done to have a fresh start.

    It feels like they forgot to include. They didn’t care to let me know they made a mistake 6 months ago when they found out and I feel betrayed. I trusted them when I was down, suicidal barely affording their monthly fee. Can they just wash off their hand for this mistake?

    God bless you
    I read your blogs, videos and wish I was living in ON to seek your help throughout those black days

    Reply
    1. J. Douglas Hoyes

      Without knowing the full circumstances of your bankruptcy it is impossible to give you a complete answer. Clearly you filed personal bankruptcy, so any debts owed by a separate corporation would not be included. However, if the corporation is no longer operating, it may not be an issue. I would suggest you review this again with your trustee and ask them to explain in detail your options. If you are not satisfied with your trustee, you can discuss your situation with the Office of the Superintendent of Bankruptcy.

      Reply
  5. Matt

    I declared bankruptcy 6 months ago based on my Equifax credit report. I only recently (a week ago) received my Transunion report which includes several creditors not mentioned in my Equifax report. As I am 6 out of the 9 months through the process is it too late to submit and include these debts?.. Will it protract the bankruptcy process to give them sufficient time to respond?

    Thanks!

    Matt

    Reply
  6. Liz M.

    Hello,
    I have a question. There is someone who owes my father a large amount of money. She declared bankruptcy in 2017. She didn’t include my father’s loan. My fathere has dementia and couldn’t have forgiven the loan. What are my options here? Did she commit fraud by making her debt look smaller and being able to keep her house? Does she have to re-open the bankruptcy to add the debt and, if she does, what would that mean?
    Thank you.

    Reply
    1. J. Douglas Hoyes

      Hi Liz. I would suggest you contact the trustee, and they can investigate. You will want to provide whatever documents you have about the loan so the trustee can review them.

      Reply
  7. Jero

    I have a question as well. I had a court case that resulted in costs to the other party in 2014. They filed for a consumer proposal that got discharged in 2016; however they did not disclose the debt owed to me. They were obviously aware of it and I did fill out a claim form for the trustee. I am thinking they owe me the total amount….any thoughts? I contacted the trustee and will resend the forms I sent back in 2014.

    Reply
    1. J. Douglas Hoyes

      Hi Jero. That’s a difficult question to answer. I would suggest you contact the trustee again and ask what happened to the forms you sent in 2014. Given that the proposal was discharged 3 years ago it’s too late to get any money from the proposal, so you may also want to talk to a lawyer to see what other recourse you have.

      Reply
  8. Stacy

    I have been receiving numerous phone calls and letters from a company called CBV for an overdraft amount on a TD bank account that was included in a bankruptcy over 15 years ago. They have now somehow located my ex-husband’s address (it was a joint account) and sent a letter in my name to his address stating that I have 15 days to pay the balance or I will have to go to court.
    What is my best course of action here?

    Reply
    1. J. Douglas Hoyes

      Hi Stacy. Your best course of action is to ask them to send you proof of the debt owing. A collection agency is required to notify you in writing of the amount and name of the original creditor, with proof that you owe the money and that they have the authority to collect it. If the debt is 15 years old it is likely that they don’t have any paperwork, and that will probably be the end of it.

      Also, in all provinces there is a “Limitations Act” that prevents a creditor from getting a judgement against you for an old debt. For example, in Ontario, the limitations period for an old debt is 2 years, so if they did take you to court for a 15 year old debt you would go to court and tell the judge that it’s past the limitations period, and that should be the end of it.

      If they continue to contact you, you could consult a lawyer or a licensed insolvency trustee, but in your case that should not be necessary.

      Reply
  9. Sarah Scott

    I was left off a creditor list when the person who owes me filed for bankruptcy. The person knew about the debt and I believe left me off on purpose. Is there a step I need to do as the creditor to show this.

    Reply
    1. J. Douglas Hoyes

      You should contact the trustee who is handling the bankruptcy file and provide them with the information proving that you are a creditor, and they will send you the necessary claims paperwork to complete.

      Reply
  10. WaitingPatiently

    Hello, I am currently in a bankruptcy that was filed in March of this year. I didn’t include a bill that I still have outstanding and have been making payments on. I should have included it then but I didn’t realize I could because it’s a monthly service I still use. (Phone company). I have contacted my trustee 4 times and they haven’t responded back. I want to know if I can include it in my bankruptcy. I do understand that I will lose the service now, but I want to make sure it’s possible to include. Thank you.

    Reply
    1. Ted Michalos Post author

      The short answer is if you continued to use the service and make payments towards the debt then likely it cannot be added to your bankruptcy. If your trustee is not responding to your request I suggest you contact the Office of the Superintendent of Bankruptcy and ask them to give your trustee a little “nudge”…

      Reply
  11. Tamime

    Hello
    I have declared bankruptcy over 3 years ago and I got a call from creditor that I owed them 1300 from overdraft I told creditor that I have declared bankruptcy while ago the creditor ask the collection office to take action now I keep receiving calls and email what should I do

    Reply
    1. J. Douglas Hoyes

      You should contact your trustee and ask them to send a copy of your creditor’s package to the creditor so that they are aware of your bankruptcy. Generally that is sufficient to stop the phone calls, assuming this was a debt that existed when you filed bankruptcy.

      Reply
  12. David

    I have a question which I suspect I already know the answer but possibly not. I am currently in bankruptcy, filed in Jun 2018. At the time I filed I was in middle of a custody battle through the courts which started in Sept 2016. I had a lawyer at the time and did not include his bill in my bankruptcy as I was still using his services for court. I fired him a couple months later in Sep 2018. At the time I had paid a retaining fee but nothing else. Today I finally received an invoice for his services from Sep 2016 – Sep 2018 which was for 12k. (I honestly thought the 5k retainer would have covered it but I was terribly wrong!)
    My question is can I include all or any of this invoice in my bankruptcy at this stage or am I completely out of luck now? (Which is what I suspect is the answer)
    Thank you,

    Reply
    1. J. Douglas Hoyes

      Hi David. Your bankruptcy includes whatever debts existed at the time of your bankruptcy, so presumably whatever portion of the lawyer’s fees were related to the pre-bankruptcy period, would be a claim provable in the bankruptcy. Your trustee can provide you with the specific process for notifying the lawyer and admitting the partial claim.

      Reply
  13. David

    Thank you for the response Mr. Hoyes, and a much better response than I expected. I will be in contact with my trustee today!

    Reply
  14. Theresa

    What happens if all assets where not reported when claiming bankruptcy . My soon to be ex husband (separated 4 yrs ago) claimed bankruptcy and did not include all assets.
    I was not part if his bankruptcy. and the bank came after me for the join visa which although it included in his bankruptcy i paid
    Now i find out he never he claimed his 15000 motorcycle. .

    Thank you

    Reply
  15. Gaétan P.

    Hello MR Hoyes,

    I did a consumer proposal that was accepted in 2005 and paid. BUt. I asked my trusteee to include a 90 000$ mortgage that I had done with a person (not a bank). The trustee person forgot to include it and died in 2006. The person then filled a legal mortgage against me in 2010 for the amount. Should it be included in my proposal and then pay the portion or that ammoint only. For example if it was 0-10cent to the dollar, only 10 per cent of that 90k so 9k?

    Best regards,

    Reply
    1. J. Douglas Hoyes

      Hi Gaétan; that’s a question you will need to either ask a lawyer, or contact the Office of the Superintendent of Bankruptcy to discuss. In general, mortgages are secured debts, so they are not discharged in a proposal, unless the property is also being surrendered (in which case any resulting shortfall becomes an unsecured debt). So, either a lawyer or the Superintendent’s office will need to review your original paperwork to determine if the debt was dischargeable, and then, if so, what can be done (perhaps nothing, given the amount of time that has elapsed).

      Reply
  16. Brendan

    Hello

    I was a creditor of a company I worked for. The receiver told me I became a creditor “after the initial mailout” I made a foi request for a list of assets as I witnessed the ceo of the company removing them from the property. The receiver replied that I had never been a creditor and he would not give that info to me. A small claims action was started before the receivership where the ceo was present. He did not forget. A list of creditors which I was not on included suppliers to his wife’s business which is still in business. He was able to gain and wipe debt that was incurred for his house and wife’s business

    Reply
    1. Ted Michalos Post author

      Sorry Brendan, but you don’t want to speak with a trustee, you need to speak with a lawyer. If the Receiver was Court appointed they have an obligation to share information with “any interested party”. If they were privately appointed they still have a duty of care to the general public. It sounds like you have some valid concerns…

      Reply
  17. Mathieu

    Hello I have 2 question in regards to a consumer proposal

    In may 2021 I had first filed a consumer proposal due to my financial problems, the firm I was dealing with was hard to get in contact with and was told my trustee dosnt take phone calls only appointments, I decided to withdraw my proposal the following week, I decided to wait until recently to get another consumer proposal or if I should go bankruptcy rout since I was told that I could refile another consumer proposal but then was reading that I would not be protected until the proposal is deemed accepted and that they have 45 days to vote on it, I find that a little uneasy since that would be plenty of time for creditors to try and sue me before they vote on the proposal , since I would not be getting a stay of proceeding, my question is that should I keep paying the creditors the best I can while I wait for the proposal to be accepted or would I be safe enough to wait it out or would I be able to switch immediately to a bankruptcy

    Reply
    1. J. Douglas Hoyes

      Hi Mathieu. If a consumer proposal is withdrawn prior to the expiration of the 45 day voting period, if you file another proposal within 6 months of the date of the filing you do not get the automatic stay of proceedings, meaning that a creditor could take you to court and sue you. Of course if the proposal is accepted, that would stop the court action, so if you file a viable proposal you are likely only at risk for the first 45 days. You could also file a bankruptcy at any time, which would give you an automatic stay of proceedings.

      I would suggest that you contact a trustee (presumably a different one than the first time) and ask them to review your options in detail. Hope that helps.

      Reply

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