Can I Sue Someone Who Has Filed for Bankruptcy?

Yes, you can sue someone who has filed for bankruptcy, but only in specific circumstances. The automatic stay prevents most lawsuits for dischargeable debts like credit cards and medical bills. However, you can proceed with lawsuits involving nondischargeable debts such as fraud, intoxication-related injuries, criminal matters, and debts incurred after the bankruptcy filing. Therefore, even though bankruptcy protects debtors from most creditor collections, you still have legal options in many circumstances.

How Bankruptcy's Automatic Stay Affects Lawsuits

When someone files a bankruptcy case, a federal court order called the automatic stay that stops creditors from collecting immediately goes into effect. (11 U.S.C. § 362.) This stay brings most creditor collection activities to a halt, including many types of lawsuits.

The primary purpose of the stay is to prevent a creditor from grasping more assets than they're entitled to receive. It gives the trustee time to evaluate whether assets are available for creditors, and, if so, to ensure distribution according to bankruptcy law.

What Types of Lawsuits Does Bankruptcy Stop?

Whether you can sue someone will depend on whether the automatic stay applies to your action. The automatic stay stops creditors from calling the debtor, sending bills, or continuing most existing lawsuits. However, this protection isn't absolute. The stay only applies to debts that can be forgiven or "discharged" in the bankruptcy case.

Tip. A quick rule of thumb is to assume you can't sue someone to collect most debts in bankruptcy. If you think your debt or action doesn't apply, research your options carefully. Violating the automatic stay order can have serious consequences.

Can vs. Cannot Sue in Bankruptcy

When You Can Sue Someone Who Filed for Bankruptcy

The automatic stay doesn't prevent all court proceedings. You can often file or continue lawsuits when the case involves:

Suing for Fraud, DUI Injuries, and Other Nondischargeable Debts

If the obligation owed is a nondischargeable debt, or if the matter doesn't involve compensation, the lawsuit can likely proceed after the debtor files for bankruptcy. Some cases don't require permission from the bankruptcy court. In contrast, others do—and most lawyers ask for permission in unclear situations.

Divorce and child custody matters typically aren't affected by bankruptcy. Child custody proceedings, restraining orders, and other similar family law matters can proceed without permission from the bankruptcy court. However, when dividing marital property, the bankruptcy court might need to approve property divisions involving bankruptcy assets. (11 U.S.C. § 362(b).)

Criminal prosecutions continue despite bankruptcy filings. Filing for bankruptcy won't stop a criminal case against the debtor. (11 U.S.C. § 362(b)(1).)

• Example. Emma was being prosecuted for a reckless driving misdemeanor when she filed for bankruptcy. Because the automatic stay doesn't affect ongoing criminal cases, Emma's case proceeded in criminal court.

Lawsuits for nondischargeable debts. You don't need permission to file an adversary proceeding for fraud in bankruptcy court. (11 U.S.C. § 523.) Fraud cases filed in state court before bankruptcy can often continue in that venue after receiving permission from the bankruptcy judge.

• Example. Sheryl loaned Jon $10,000 after he provided false documents verifying his income. After Jon filed for bankruptcy, Sheryl learned he was unemployed when she loaned him the money. If Sheryl files an adversary proceeding in bankruptcy court and proves fraud, the bankruptcy judge will declare the debt nondischargeable. If she doesn't file the case, or files but doesn't win, the case will be discharged in bankruptcy.

Personal injury cases involving intoxication can proceed. When the debtor caused death or injury while intoxicated, bankruptcy won't discharge that debt. The bankruptcy court typically allows these lawsuits to proceed to determine whether intoxication occurred.

• Example. Holly was injured in a car accident when struck by Don, who was driving under the influence, and filed an action against him in state court before he filed for bankruptcy. The bankruptcy court allowed her to continue her personal injury case against Don in state court because debts arising from intoxication-related injuries aren't dischargeable in bankruptcy.

Nondebt matters. If the case doesn't involve collecting money, you can likely sue. However, to avoid unnecessary problems, you'd probably want to get permission from the bankruptcy court first.

• Example. Helen wants to file a lawsuit for property line encroachment, a nondebt matter, against her neighbor, who is in bankruptcy. With permission from the bankruptcy court, this lawsuit can likely proceed.

Suing for Debts and Incidents After Bankruptcy Filing

Bankruptcy only covers debts that existed before the filing date. If something happens after the bankruptcy filing, you can pursue legal action.

For instance, if the debtor causes a car accident two months after filing bankruptcy, you can sue for those damages. Similarly, suppose the debtor takes out a loan three months after filing for bankruptcy and fails to repay it. In that case, you can pursue your legal remedies.

Example. Shortly after filing for Chapter 7 bankruptcy, Henry financed a new car but soon stopped making payments. Because the debt was incurred after the bankruptcy filing, the vehicle lender can sue Henry for the unpaid car loan.

Example. Suppose someone owed you money from a personal loan made six months before filing for bankruptcy. In that case, you typically can't sue them for that debt during the bankruptcy case.

What Happens to Pending Lawsuits When Someone Files Bankruptcy

If your lawsuit was already pending when the debtor filed bankruptcy, you have several options depending on the type of case:

• For cases involving dischargeable debts. The lawsuit must stop due to the automatic stay.
• For cases involving nondischargeable debts or matters not involving debt. The parties can choose to dismiss the lawsuit, request permission from the bankruptcy court to continue in state court, or transfer the lawsuit to bankruptcy court.

How to File a New Lawsuit Against Someone in Bankruptcy

If you want to sue someone who has already filed bankruptcy, your options depend on the nature of your claim:

• For nondischargeable debts. You can file an "adversary proceeding" in the bankruptcy court. An adversary proceeding is essentially a lawsuit filed within the bankruptcy case but separate from the main bankruptcy proceedings.
• For nondebt matters. You can bring the lawsuit in another court after getting permission from the bankruptcy court.

What You Should Do Next

Before deciding whether to sue someone in bankruptcy, you should:

• Determine whether your claim involves a dischargeable debt or falls into one of the exception categories.
• Consider consulting with a bankruptcy attorney who specializes in litigation to review your specific situation.
• Understand that even if you can sue and win, collecting money from someone in bankruptcy can be challenging.

Remember that bankruptcy laws are complex, and your specific circumstances play a significant role in determining your legal options. What works in one situation might not apply to another.

Frequently Asked Questions about Suing Someone Who Has Filed for Bankruptcy

Below you'll find answers to common questions about filing a lawsuit against a bankruptcy debtor.

What should I do if someone I want to sue has filed bankruptcy?

It depends on the type of debt and when it occurred. Usually, you can't sue for dischargeable debts that arose before the bankruptcy filing due to the automatic stay. Lawsuits you typically can proceed with involve nondischargeable debts like fraud (you'll file an adversary case in the bankruptcy court or ask for permission to proceed with a state case), criminal matters, family law issues, or debts that arose after the bankruptcy filing.

How long does the automatic stay last in bankruptcy?

The automatic stay is in place until the debtor receives the discharge or the court lifts the stay at the creditor's request. In Chapter 7, the stay usually remains in place for about four months. A Chapter 13 case takes three to five years to complete.

What types of lawsuits aren't affected by the automatic stay?

Criminal prosecutions and child support and alimony collection can proceed. Other actions, like fraud-related lawsuits and personal injury cases involving intoxication, can proceed. However, to avoid accidentally violating the automatic stay, most people get permission from the bankruptcy judge first.

Can I continue a lawsuit against someone who files for bankruptcy after I already sued them?

If your lawsuit involves dischargeable debts, the automatic stay will stop the suit. For nondischargeable debts and matters not involving a debt, the bankruptcy court might allow you to proceed with the state court action. Your other option would be to file an adversary proceeding in the bankruptcy court.

What is an adversary proceeding?

An adversary proceeding is a lawsuit filed within a bankruptcy case to resolve disputes related to discharge objections and other issues that need to be decided by a bankruptcy judge.

Can I sue for fraud if the defendant has filed for bankruptcy?

Yes, fraud cases can often continue during bankruptcy because fraud debts are typically nondischargeable. You can file an adversary proceeding in bankruptcy court, asking the judge to declare the debt nondischargeable.

What happens if I violate the automatic stay?

Violating the automatic stay has consequences, including sanctions, monetary damages, and attorney fees.

Can I sue someone for a car accident if they've filed for bankruptcy?

Typically, no, because damages from negligence actions can be discharged in bankruptcy. If the bankruptcy filer caused harm with a vehicle intentionally or while under the influence of drugs or alcohol, the related debts are nondischargeable.

Does bankruptcy affect divorce and child support cases?

Bankruptcy doesn't stop divorce proceedings, child custody matters, or child support collection. Property division could be delayed if it involves assets that are part of the bankruptcy estate.

Can I collect money if I win a lawsuit against someone in bankruptcy?

To collect on a lawsuit judgment secured before the bankruptcy filing, you'd need to have either placed a lien on the bankruptcy debtor's property before the case was filed, or there would need to be funds available to distribute to creditors. A bankruptcy lawyer can help you work through these challenging issues.

What should I do if someone I want to sue has filed for bankruptcy?

Your best bet would be to talk with a bankruptcy attorney who specializes in litigation. The lawyer will help you determine whether it's a nondischargeable debt or a dischargeable debt involving fraud and whether you'll need to sue.

Can I sue for debts that occur after someone files for bankruptcy?

Yes. The bankruptcy only covers preexisting debts. The automatic stay doesn't protect new debts that arise after filing.

Need More Bankruptcy Help?

Did you know Nolo has made the law accessible for over fifty years? We wholeheartedly encourage research and learning, and you can find many more helpful bankruptcy articles on Nolo's bankruptcy homepage. These resources can explain what bankruptcy entails, what you should avoid before filing for bankruptcy, and more. Additionally, information needed to complete the official downloadable bankruptcy forms can be found on the Department of Justice U.S. Trustee Program website.

However, online articles and resources can't address all bankruptcy issues and aren't written with the facts of your particular case in mind. The best way to protect your assets in bankruptcy is by hiring a local bankruptcy lawyer.