By: Donald L Swanson
What happens if an individual debtor faces a Complaint to deny Debtor’s discharge under § 727 and Debtor fails to attend the trial?
- Is the failure to attend ok? or
- Might such failure be grounds for denying a discharge under § 727?
An opinion on such questions is Black v. Triplett (In re Triplett), Case No. 25-40520 (5th Cir.; decided August 6, 2026). What follows is a summary of the Black v. Triplett opinion on the failure-to-appear issue.
Facts
Debtor files a voluntary Chapter 7 Petition, and Plaintiffs file a Complaint in the bankruptcy to deny Debtor’s discharge under § 727.
The Bankruptcy Court holds a four-day trial on Plaintiff’s § 727 Complaint.
On the first day of trial, Debtor is absent because Plaintiffs failed to subpoena him—a failure the Bankruptcy Court finds “astonishing” because trial had been set months in advance and because the parties made numerous pretrial filings.
Without Debtor’s testimony on the first day, Plaintiffs’ attorney decides to build a case-in-chief by admitting certain exhibits. On a later trial day, Plaintiffs’ attorney cross-examines Debtor.
The Bankruptcy Court rules in Debtor’s favor and against Plaintiffs on § 727 discharge issues.
Plaintiffs appeal, and the District Court affirms on § 727 discharge issues, and Plaintiffs appeal to the Fifth Circuit Court of Appeals.
The Fifth Circuit also affirms on § 727 issues. What follows is a summary of the Fifth Circuit’s rationale.
Debtor’s Failure to Attend First Day of Trial
Under Fed.R.Bankr.P. 4002(a)(2), a debtor “must . . . attend the hearing on a complaint objecting to discharge and, if called, testify as a witness.”
The parties dispute whether Debtor violated this rule in the first place and if so, whether any such violation was harmless error.
These are not hard issues.
First, Debtor plainly violated Rule 4002 by failing to appear for the first day of trial.
Although Debtor contends that “a purely literal reading” of Rule 4002 means that his eventual appearance at trial was enough, his absence still prevented him from testifying as a witness when Plaintiffs would have initially called him to the stand.
That failure violates Rule 4002’s plain language.
Although the Bankruptcy Court blames Plaintiffs for failing to subpoena Debtor and finds this failure “astonishing,” nowhere does any rule require a party to subpoena the debtor to a trial on a complaint objecting to discharge.
For context, the immediately preceding provision in Rule 4002(a)(1) states that a debtor must attend “an examination when the court orders.”
So, based on the text and context of Rule 4002, Debtor had to attend the trial, regardless of whether a subpoena issued.
In re De Ronde, 509 B.R. 223, 228 (Bankr. S.D. Iowa 2012), says that “if a party in an adversary proceeding brought pursuant to section 727 calls the debtor as a witness, the debtor must appear, regardless of a subpoena.”
Harmless Error?
But it is equally plain that, despite Debtor’s violation, any resulting error is harmless. Here’s why.
First, Fed.R.Bankr.P. 9005 incorporates Fed.R.Civ.P. 61, which states that a court “must disregard all errors and defects that do not affect any party’s substantial rights.”
Second, Debtor’s violation of Rule 4002(a)(2) is harmless error because that violation did not affect substantial rights:
- after a thirty-minute recess at trial, Plaintiffs’ attorney stated his belief that Plaintiffs had “enough information from prior testimony to go forward”;
- the Bankruptcy Court then allowed Plaintiffs to call Debtor in their rebuttal case; and
- Plaintiffs’ attorney confirmed to District Court that he was able to ask Debtor every question on cross-examination that he would have otherwise asked Debtor during Plaintiffs’ case-in-chief.
Such evidence shows no harm.
No Bright Line Rule
Plaintiffs argue that Debtor’s error was harmful because “a debtor’s violation of Bankruptcy Rule 4002, alone, is sufficient to deny discharge.”
Such an argument is misplaced because:
- the right to a bankruptcy discharge is addressed to the sound discretion of the bankruptcy court;
- appellate courts should interfere only for the most cogent, compelling reasons in situations of gross abuse; and
- Plaintiffs cite no supporting caselaw and cite no basis for finding an abuse of Bankruptcy Court discretion.
Other courts agree that a debtor’s failure to appear gives the bankruptcy court discretion to deny discharge—but not a mandate to do so. For example:
- In re De Ronde, 509 B.R. at 228 (Debtor “did not appear at trial and discharge may be denied on this basis if the Plaintiff presents a prima facie case”) ;
- In re Sadler, 282 B.R. 254, 262 (Bankr. M.D. Fla. 2002) (“Although Rule 4002(a)(2) requires a debtor to attend the hearing on a complaint objecting to discharge and to testify if called as a witness, a debtor’s failure to do so does not mandate the denial” of discharge; and
- In re Poland, 222 B.R. 374, 377 (Bankr. M.D. Fla. 1998) (“the current Code and Rules do not contain a mandatory denial of discharge if the debtor fails to appear at a trial objecting to the discharge”).
Two court opinions talk about a debtor’s failure to attend the trial as a basis “in itself” for denying discharge, but such opinions turn on debtor’s refusal to obey lawful orders, not on debtor’s failure to appear at trial:
- In re Simon, 297 F. 942, 945 46 (2d Cir. 1924) (concludes that a debtor’s refusal to appear “after having been subpoenaed” constituted a refusal to obey a lawful order and justified a denial of discharge); and
- In re Kauffman, 675 F.2d 127, 128 (7th Cir. 1981) (affirms a denial of discharge because of debtor failure to comply with a court order—not because debtor failed to appear).
In sum, Debtor’s violation of Rule 4002(a)(2) for one day was not prejudicial, did not cause harmful error, and furnished no independent ground to deny his discharge.
Conclusion
Very interesting.
[Note: This is the second of a two part series of articles on technical rules of procedure addressed in the Fifth Circuit’s Black v. Triplett opinion]
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