Volume 5 Winter 2011 Number 2 - Charleston Law Review

CHARLESTON LAW REVIEW [Volume 5Espinosa impact this situation, if at all? If the creditor receives“actual notice” of the proceeding, will this be deemed “Mullane”notice? 56 Is this an opportunity for a debtor to get away with notlisting a creditor or to not properly notice a creditor as requiredby the Code when the debtor knows and can prove that a creditorhas actual notice?One could make the argument that so long as the creditorhad actual notice that the debtor filed bankruptcy, Mullane hasbeen satisfied and due process has been accorded to thecreditor. 57 But the consequences can be significant. Assumingthe debtor acted innocently and, thus, cannot be found to havecommitted a deliberate act of fraud, hindrance, or other bad act,the debtor still may not be able to gain a discharge of thatparticular debt. 58 The Code contains a provision enumeratingexceptions to discharge. 59 Among those exceptions is a provisionId.Id.(1) Notice provided to a creditor by the debtor or the court otherthan in accordance with this section (excluding this subsection) shallnot be effective notice until such notice is brought to the attention ofsuch creditor. If such creditor designates a person or an organizationalsubdivision of such creditor to be responsible for receiving noticesunder this title and establishes reasonable procedures so that suchnotices receivable by such creditor are to be delivered to such personor such subdivision, then a notice provided to such creditor other thanin accordance with this section (excluding this subsection) shall not beconsidered to have been brought to the attention of such creditor untilsuch notice is received by such person or such subdivision.56. Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306 (1950).57. Id.58. 11 U.S.C. § 523(a)(3)(A)–(B) (2006):(A) if such debt is not of a kind specified in paragraph (2), (4), or(6) of this subsection, timely filing of a proof of claim, unless suchcreditor had notice or actual knowledge of the case in time for suchtimely filing; or(B) if such debt is of a kind specified in paragraph (2), (4), or (6) ofthis subsection, timely filing of a proof of claim and timely request fora determination of dischargeability of such debt under one of suchparagraphs, unless such creditor had notice or actual knowledge of thecase in time for such timely filing and request.59. Id.206