Discharge in Bankruptcy

From Florida Legal Wiki

If the debt defendant is being sued for was discharged in a bankruptcy proceeding, this claim should be raised as an Affirmative Defense. Discharge cannot be a basis for dismissing a complaint unless it is apparent from the face of the complaint. Kalmanson v. Adams, 988 So.2d 1121, 1122 (Fla. 5th DCA 2008).

[edit] Proof at Trial

"The affirmative defense of discharge may not be sustained merely by a showing that a Chapter XI proceeding once existed and then was terminated." Wellington-Hall, Ltd. v. Comprehensive Communities Corp., 321 So.2d 124, 126 (Fla. 4th DCA 1975). In Wellington-Hall, Ltd the Defendant properly raised the affirmative defense that the admittedly unsecured debt sued upon had been discharged in bankruptcy. "At the nonjury trial the defendant introduced in support of this defense only a ‘Final Decree’ entered by a Bankruptcy Judge which reflected that Comprehensive Communities had been involved *in Chapter XI proceedings under the Bankruptcy Act and that the ‘estate (was) . . . closed;‘" Id. However, the Fourth DCA found this was not sufficient to prove that the debt had actually been discharged.