Legal Question in Bankruptcy in New York

Indicted in NY after bankruptcy in FL to repay discharged loan?

Loans were taken out from two individuals in new york state.

Loans went into default.

Borrower moves to florida and files chapter 7 bankruptcy.

Trial hearing resulted in bankruptcy for both loans, one lender shows up and testifies the other lender does not. The court rules in favor of Defendant/Borrower and discharges both loans.

Borrower returns to NY and is indicted for Grand Larceny and scheme to defraud. Plea is offered to reafirm debt and pay lenders restiution.

Question: Is this in violation of the judgment issued in Florida? Can borrower file a motion in Florida to decide if this is a violation of that order / Estoppel? /


Asked on 1/23/04, 12:19 pm

2 Answers from Attorneys
Eric Kochel The Law Office of Eric David Kochel, Esq., P.C.

Re: Indicted in NY after bankruptcy in FL to repay discharged loan?

No, the plea agreement to reaffirm the loans does not violate the bankruptcy. First of all, bankruptcy is a federal law. It doesn't matter that the bankruptcy was filed in Florida. The discharge is granted in federal bankruptcy court and is not a "Florida decision" - it applies in all states equally. Also, debt discharged in any bankruptcy can be re-affirmed by the debtor - it is the debtor's and creditor's mutual choice to do so and if the debtor and creditor agree and the court approves - any re-affirmation is valid. If in a seperate criminal case the debtor agrees to plea guilty to a lesser charge and part of the plea agreement is that he will re-affirm the debt in order to pay restitution, this is perfectly legal as long as the creditor has a legitimate criminal complaint against the debtor. It is the debtor's choice to accept those terms of the plea or not. But it does not violate the bankruptcy. If the creditor(s) have a legitimate criminal complaint against the debtor, I see no reason why the creditor(s) can't ask for a re-affirmation as part of a plea agreement. If the debtor doesn't want to re-affirm, then he must not accept the plea agreement on those terms. As for restitution, the criminal court should set forth the terms of the restitution and the re-affirmation agreement filed in the bankruptcy court should be identical to the terms of the restitution agreement.

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Answered on 1/25/04, 1:01 pm
Andrew Nitzberg Andrew Nitzberg & Associates

Re: Indicted in NY after bankruptcy in FL to repay discharged loan?

An interesting case. The Bankruptcy discharge establishes that the creditor may not collect on the debt. This is a criminal matter, not an effort to collect the debt.

You need an experienced criminal attorney. Merely affirming the debt will not accomplish your purpose - a conviction in the criminal court will likely include an order for restitution.

I do criminal work and would be happy to speak with you.

You are welcome to a consultation at no fee at my offices at 42 west 44th st., NY,NY. Please call for an appointment first. (646) 591-5786

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Answered on 1/23/04, 6:10 pm


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