Short answer: You can discharge unemployment overpayments in both a chapter 7 and a chapter 13, but only if they don’t fight you over it for fraud. If they fight you, you’ll lose.
Long answer: Most debts are dischargeable in bankruptcy (they can be wiped out). There is a pretty limited list of debts that are non-dischargeable. Under 11 U.S.C. 523, the following debts are non-dischargeable (see list at bottom of page, with bold added).
Unemployment overpayments are not specifically listed in the group of debts that cannot be discharged. In other words, they normally can and are discharged. However, if the state has alleged fraud with those overpayments, it opens a whole new can of worms.
If the state has alleged that you committed fraud in receiving those benefits, you can still list them in your bk. After you file, the state has 3 months to file a bankruptcy lawsuit to show that those overpayments were received by fraud. If they file that lawsuit, called an “adversary proceeding,” you are probably going to lose. You will still owe those overpayments. If the state gets a bankruptcy court judgment that those debts are based on fraud, they win, and you’ll still need to pay them back, eventually.
Now I know that you are thinking that you didn’t mean to commit fraud, and you’ll fight them in bankruptcy court to prove that you are right. “Fraud” is such a harsh term, and it was more of a simple accounting misunderstanding. However, it’s expensive to fight them (this is not part of your normal bankruptcy), and they are almost always right. If you really think you can beat their fraud lawsuit, be prepared to pay at least another $5,000 to yet another attorney to fight their adversary proceeding.
And yes, this applies to state unemployment benefits, and those federal Pandemic Unemployment Assistance (PUA) payments as well.
Here is that list of debts that cannot be discharged:
(note that there are many exceptions to the tax ones).
(1)for a tax or a customs duty—(A)of the kind and for the periods specified in section 507(a)(3) or 507(a)(8) of this title, whether or not a claim for such tax was filed or allowed;
(B)with respect to which a return, or equivalent report or notice, if required—(i)was not filed or given; or
(ii)was filed or given after the date on which such return, report, or notice was last due, under applicable law or under any extension, and after two years before the date of the filing of the petition; or
(C)with respect to which the debtor made a fraudulent return or willfully attempted in any manner to evade or defeat such tax;
(2)for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—(A)false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition;
(B)use of a statement in writing—(i)that is materially false;
(ii)respecting the debtor’s or an insider’s financial condition;
(iii)on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and
(iv)that the debtor caused to be made or published with intent to deceive; or
(C)(i)for purposes of subparagraph (A)—(I)consumer debts owed to a single creditor and aggregating more than $500  for luxury goods or services incurred by an individual debtor on or within 90 days before the order for relief under this title are presumed to be nondischargeable; and
(II)cash advances aggregating more than $750 2 that are extensions of consumer credit under an open end credit plan obtained by an individual debtor on or within 70 days before the order for relief under this title, are presumed to be nondischargeable; and
(ii)for purposes of this subparagraph—(I)the terms “consumer”, “credit”, and “open end credit plan” have the same meanings as in section 103 of the Truth in Lending Act; and
(II)the term “luxury goods or services” does not include goods or services reasonably necessary for the support or maintenance of the debtor or a dependent of the debtor;
(3)neither listed nor scheduled under section 521(a)(1) of this title, with the name, if known to the debtor, of the creditor to whom such debt is owed, in time to permit—(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 such creditor had notice or actual knowledge of the case in time for such timely filing; or
(B)if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request;
(4)for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny;
(5)for a domestic support obligation;
(6)for willful and malicious injury by the debtor to another entity or to the property of another entity;
(7)to the extent such debt is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss, other than a tax penalty—(A)relating to a tax of a kind not specified in paragraph (1) of this subsection; or
(B)imposed with respect to a transaction or event that occurred before three years before the date of the filing of the petition;
(8)unless excepting such debt from discharge under this paragraph would impose an undue hardship on the debtor and the debtor’s dependents, for—(A)(i)an educational benefit overpayment or loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution; or
(ii)an obligation to repay funds received as an educational benefit, scholarship, or stipend; or
(B)any other educational loan that is a qualified education loan, as defined in section 221(d)(1) of the Internal Revenue Code of 1986, incurred by a debtor who is an individual;
(9)for death or personal injury caused by the debtor’s operation of a motor vehicle, vessel, or aircraft if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance;
(10)that was or could have been listed or scheduled by the debtor in a prior case concerning the debtor under this title or under the Bankruptcy Act in which the debtor waived discharge, or was denied a discharge under section 727(a)(2), (3), (4), (5), (6), or (7) of this title, or under section 14c(1), (2), (3), (4), (6), or (7) of such Act;
(11)provided in any final judgment, unreviewable order, or consent order or decree entered in any court of the United States or of any State, issued by a Federal depository institutions regulatory agency, or contained in any settlement agreement entered into by the debtor, arising from any act of fraud or defalcation while acting in a fiduciary capacity committed with respect to any depository institution or insured credit union;
(12)for malicious or reckless failure to fulfill any commitment by the debtor to a Federal depository institutions regulatory agency to maintain the capital of an insured depository institution, except that this paragraph shall not extend any such commitment which would otherwise be terminated due to any act of such agency;
(13)for any payment of an order of restitution issued under title 18, United States Code;
(14)incurred to pay a tax to the United States that would be nondischargeable pursuant to paragraph (1);
(14A)incurred to pay a tax to a governmental unit, other than the United States, that would be nondischargeable under paragraph (1);
(14B)incurred to pay fines or penalties imposed under Federal election law;
(15)to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit;
(16)for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor’s interest in a unit that has condominium ownership, in a share of a cooperative corporation, or a lot in a homeowners association, for as long as the debtor or the trustee has a legal, equitable, or possessory ownership interest in such unit, such corporation, or such lot, but nothing in this paragraph shall except from discharge the debt of a debtor for a membership association fee or assessment for a period arising before entry of the order for relief in a pending or subsequent bankruptcy case;
(17)for a fee imposed on a prisoner by any court for the filing of a case, motion, complaint, or appeal, or for other costs and expenses assessed with respect to such filing, regardless of an assertion of poverty by the debtor under subsection (b) or (f)(2) of section 1915 of title 28 (or a similar non-Federal law), or the debtor’s status as a prisoner, as defined in section 1915(h) of title 28 (or a similar non-Federal law);
(18)owed to a pension, profit-sharing, stock bonus, or other plan established under section 401, 403, 408, 408A, 414, 457, or 501(c) of the Internal Revenue Code of 1986, under—(A)a loan permitted under section 408(b)(1) of the Employee Retirement Income Security Act of 1974, or subject to section 72(p) of the Internal Revenue Code of 1986; or
(B)a loan from a thrift savings plan permitted under subchapter III of chapter 84 of title 5, that satisfies the requirements of section 8433(g) of such title;
but nothing in this paragraph may be construed to provide that any loan made under a governmental plan under section 414(d), or a contract or account under section 403(b), of the Internal Revenue Code of 1986 constitutes a claim or a debt under this title; or
(19)that—(A)is for—(i)the violation of any of the Federal securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934), any of the State securities laws, or any regulation or order issued under such Federal or State securities laws; or
(ii)common law fraud, deceit, or manipulation in connection with the purchase or sale of any security; and
(B)results, before, on, or after the date on which the petition was filed, from—(i)any judgment, order, consent order, or decree entered in any Federal or State judicial or administrative proceeding;
(ii)any settlement agreement entered into by the debtor; or
(iii)any court or administrative order for any damages, fine, penalty, citation, restitutionary payment, disgorgement payment, attorney fee, cost, or other payment owed by the debtor.
For purposes of this subsection, the term “return” means a return that satisfies the requirements of applicable nonbankruptcy law (including applicable filing requirements). Such term includes a return prepared pursuant to section 6020(a) of the Internal Revenue Code of 1986, or similar State or local law, or a written stipulation to a judgment or a final order entered by a nonbankruptcy tribunal, but does not include a return made pursuant to section 6020(b) of the Internal Revenue Code of 1986, or a similar State or local law.