Borrowers who file a bankruptcy petition are always looking for creative new challenges to claims asserted by their bank creditors. In recent years, debtors have argued that a bank's issuance of an Internal Revenue Code form 1099-C "Cancellation of Debt" has the effect of waiving the bank's claims against the borrower, and should preclude the bank from having an allowed claim in the bankruptcy case. Fortunately, some recent court opinions state that a bank's issuance of a 1099-C does not constitute a waiver, and the bank remains entitled to enforce its claim in a subsequent bankruptcy case.
Bankruptcy courts around the country have expressed differing opinions about whether a 1099-C forgives or discharges the debtor from further liability on a debt. For example, courts in Connecticut have said that filing a 1099-C has the effect of discharging the underlying debt. Arizona courts have declined to state a definitive answer, whereas courts in Indiana have held that filing a 1099-C does not excuse the debt, and instead is an administrative filing made merely to meet IRS requirements. Similarly, in a recent bankruptcy case in Pennsylvania, In re Zilka, a bankruptcy court held that filing a 1099-C does not waive the debt, operate as a release or discharge the borrower's liability. In addition, the bankruptcy court in Zilka held that the lender's issuance of a written statement to the borrower citing the outstanding loan balance as $0.00 due to a "charge off" only reflected the bank's internal accounting procedure and was not an admission that the loan balance was forgiven.
A recent North Carolina decision follows the Pennsylvania bankruptcy court's reasoning in Zilka. In FDIC as receiver for Bank of Asheville v. Cashion, the United States District Court for the Western District of North Carolina rejected the debtor's argument that the note was cancelled when the bank filed a 1099-C. Citing Zilka, the North Carolina court held that the 1099-C did not operate to discharge the debtor's liability, and was issued only to comply with IRS administrative requirements.
A few practical tips may help banks protect themselves from challenges to their proofs of claim or debt collection activities following issuance of a 1099-C: