By: J. Ellsworth Summers, Jr. and Scott St. Amand
The Bankruptcy Code provides that creditors holding nondischargeable claims may pursue post-confirmation collection efforts. For example, § 1141(a), provides that a confirmed plan binds the debtor and the debtor’s creditors, “ except as provided in subsections (d)(2),” which subsection provides that the confirmation of a plan does not discharge an individual debtor from debts that are nondischargeable under § 523 of the Bankruptcy Code. Thus, if debts are not discharged upon confirmation of the debtor’s plan, a creditor is permitted to proceed with its post-confirmation collection efforts outside of the bankruptcy case.
A debtor’s immediate reaction to a post-discharge claim is to assert a violation of the discharge injunction. However, bankruptcy courts, including the Bankruptcy Court for the Middle District of Florida, have held that when a debt is not discharged in a bankruptcy proceeding, whether due to the debtor’s inadvertence or intentional failure to schedule the debt, the debtor may not sustain a claim for damages for violation of the permanent discharge injunction.