Bankr. M.D.N.C.: In re Griffin- Attorney Certification of Reaffirmation

Summary:

The bankruptcy court issued a show cause order to the Debtor’s attorney for signing a certification that a reaffirmation would not be an undue hardship for the Debtor. The court held that in regards to a reaffirmation the debtor’s attorney must file an Affidavit stating that the Reaffirmation:

1. Represents a fully informed and voluntary agreement by the debtor;
2. Does not impose an undue hardship on the debtor or a dependent of the debtor;
3. That the attorney fully advised the debtor of the legal effect and consequences of the agreement and any default under such an agreement, as well as other options available instead of reaffirmation. See See In re Vargas, 257 B.R. 157, 165 (Bankr. D. N.J. 2001).
4. Verifies the creditors’ current security interests as unavoidable. Id.
5. Is based on the attorney’s personal knowledge of the facts. See In re Adams, 229 B.R. 312, 317 (Bankr. S.D.N.Y. 1999)

If the Debtor’s attorney cannot certify these, the statement required by 11 U.S.C. § 524(c)(3) should not be signed, thereby setting the Reaffirmation for hearing with the possible outcome being a determination that the debtor had timely complied with the requirements of 11 U.S.C. §§ 521(a)(2) and 524(c) and that accordingly, the Debtor is allowed a “ride through”. See In re Perkins, 418 B.R. 680, 681-82 (Bankr. M.D.N.C. 2009) (citing, inter alia, Coastal Federal Credit Union v. Hardiman, 398 B.R. 161, 189 (E.D.N.C. 2008)).

Commentary:

Despite the skepticism expressed in this order, at hearing, the court found that the Debtor’s attorney had, in fact, satisfied these requirements and that the Reaffirmation did not present an undue hardship.

For a copy of the opinion, please see:

Griffin- Attorney Certification of Reaffirmation

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993.

2. Juris Doctor degree from George Washington University, 1996.

Admissions to Practice of Law:

North Carolina Bar, 1996.
Federal District Courts for the Eastern and Middle Districts of North Carolina.

Specialty Certification:

North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy.

Areas of Practice:

Practice limited to consumer and business debtor bankruptcy law, 1998 to present.

Memberships:

National Association of Consumer Bankruptcy Attorneys (NACBA).
North Carolina Academy of Trial Lawyers (NCATL).
North Carolina Bar Association, Bankruptcy Section.

Lectures prepared and presented:

North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court – C.Y.A. Forms to Help ‘Gird They Loins’; 2001.
Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002.
NACBA National Convention; Topic: Efficient Office Practices; 2003.
NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004.
Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004.

Positions held:

NACBA National Convention; Convention Chair; 2008.
NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008.
NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007.
NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007.
NACBA, Member of National Board of Directors, 2006 to present.
NCATL, Chair of the Bankruptcy Section, 2003 to 2007.
NACBA, Chair of the North Carolina Section, 2003 to 2007.
NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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