Plaintiff commenced this small claims action for failure to return money loaned. A judgment was entered against the defendant on August 2, 2010 in the amount of $5,020.00.

Defendant now moves by order to show cause to vacate the judgment arguing that she inadvertently failed to list the subject debt on her Bankruptcy Court petition filed on January 19, 2009. A copy of a Discharge of Debtor Order of Final Decree issued by the United States Bankruptcy Court, Southern District of New York (J. Hardin), dated April 30, 2009 is attached as Exhibit A. The order of the Bankruptcy Court states in pertinent part:

"1. The Debtor is released from all dischargeable debts.

2. Any judgment not obtained in this court is null and void as to the personal liability of the Debtor(s) regarding the following:

(a) debts dischargeable under 11 U.S.C. § 523(a);

(b) debts alleged to be excepted from discharge under 11 U.S.C. § 523(a)(2),(4),(6) or (15) unless determined by this court to be nondischargeable;

(c) debts determined to be discharged."

Defendant argues that the subject debt was incurred prior to the discharge order, and despite her failure to list it on the bankruptcy petition, this Court should vacate the judgment.

The Court refuses to sign defendant's application for an order to show cause. The United States Bankruptcy Law states in pertinent part: "(a) A discharge under . . . this title does not discharge and individual from any debt . . .(3) neither listed nor scheduled under section 521(1) of this title 11 USCS § 521(1), with the name, if known to the debtor, of the creditor to who such debt is owed, in time to permit (A) . . .timely filing of a proof of claim (11 U.S.C. § 523(a)).

The final judgment and order of the Bankruptcy Court states that the defendant is only discharged from dischargeable debts. Defendant had the responsibility of [*2]seeking the Bankruptcy Court's determination that the subject loan was a dischargeable debt. Since she failed to avail herself of the determination by the Bankruptcy Court that this loan should have been discharged due to undue hardship, this loan cannot be discharged and the judgment shall not be vacated.

Defendant's application for an order to show cause is denied.

Dated:August 30, 2010

Mount Vernon, New York

___________________________________

HON. ADAM SEIDEN

Associate City Judge of Mount Vernon

To:

Beryl Dove

Plaintiff pro se

Majorie Guthrie

Defendant pro se