Motion Objecting to Discharge
(11 U.S.C. §§ 727(a)(8), 727(a)(9))

Summary

This template motion is for use by an attorney representing a party objecting to the discharge of a Chapter 7 debtor under Section 727(a)(8) or Section 727(a)(9). This template includes practical guidance, drafting notes, and alternate and optional clauses. Section 727(a) of the Bankruptcy Code requires the bankruptcy court to grant an individual debtor a discharge unless there are grounds to deny it. 11 U.S.C. § 727(a). Section 727(a) lists 12 grounds that serve as a basis for the denial of a general Chapter 7 discharge. If one of these grounds exists and is timely asserted, the debtor is denied a discharge of all debts. Section 727(a)(8) prevents a Chapter 7 debtor who previously received a discharge in a case commenced under Chapter 7 or Chapter 11 within 8 years of the current petition date from receiving a discharge in the current case. Under Section 727(a)(9)(A), the debtor will be denied a discharge if the debtor received a discharge in a prior Chapter 12 or 13 case commenced within 6 years of the current petition date unless the debtor paid 100% of the allowed unsecured claims pursuant to a plan filed in the prior case. Under Section 727(a)(9)(B), the debtor will be denied a discharge if the debtor received a discharge in a prior Chapter 12 or 13 case commenced within 6 years of the current petition date unless the debtor paid at least 70% of the allowed unsecured claims pursuant to a plan filed in the prior case and such plan was (1) proposed in good faith and (2) represented the debtor's best effort. Note that for both Section 727(a)(8) and (a)(9), the relevant date is the commencement date, or petition date, of the prior case, not the actual discharge date. The Chapter 7 trustee, the U.S. Trustee, or any creditor of the debtor may object to the discharge of the debtor. 11 U.S.C. § 727(c)(1). While most objections to discharge are commenced by adversary proceeding, objections to discharge under Sections 727(a)(8) or (9) can be made by motion rather than adversary proceeding. See Fed. R. Bankr. P. 4004(d), 7001(4). The objecting party must file a motion objecting to the discharge of the debtor under Section 727(a)(8) or (a)(9) within 60 days of the date first set for the Section 341(a) meeting of creditors. Fed. R. Bankr. P. 4004(a). The main part of this template includes relief under Section 727(a)(8) and, in some places, subsection (a)(9). In certain parts of the template, optional or alternate clauses must be used for relief under subsection (a)(9). The drafting notes assist in determining the edits and the clauses that should be used for the different subsections. For general information on Chapter 7 bankruptcy cases, see Chapter 7 Liquidation. For a template complaint objecting to Chapter 7 discharge on other grounds, see Complaint Objecting to Chapter 7 Discharge. For additional Chapter 7 resources, see Individual Chapter 7 Bankruptcy Resource Kit.