Bankr. M.D.N.C.: In re Macy- Reaffirmation Is Voluntary for Both Debtor and Creditor

Summary:

Following receipt of an Reaffirmation Agreement from World Omni, the Macys completed and signed the statutorily prescribed form and both returned the documents to World Omni and filed a copy with the bankruptcy court.

The bankruptcy court sua sponte held that the filing of the Reaffirmation “absent a signature of an authorized representative” of World Omni was improper and of no binding effect, despite that it may be necessary for a debtor to establish that the requirements of 11 U.S.C. § 521(a)(2) were met, since only partially executed “creates uncertainty with the vital and powerful discharge injuction….” The court did allow, however, that debtor’s counsel can file a certificate of service reflecting compliance with the requirements of 11 U.S.C. § 521.

Commentary:

This is a step towards clarifying how debtors and their attorneys in the Middle District can both comply with the requirements of 11 U.S.C. § 521 and also move towards the “ride through” option that was revivified in Coastal Federal Credit Union v. Hardiman, 398 B.R. 161 (E.D.N.C. 2008), but in which the route is much clearer in the Eastern District.

Of course, these reaffirmation opinions still seem to make the false assumption that debtors are the one that want a reaffirmation and will try to trick creditors into such. In fact, debtors just want their cars and generally do not care one whit about the reaffirmation and resulting personal liability, especially since in North Carolina, with its lack of wage garnishment, there is no real means of enforcing and collecting a judgment. Even more, if a debtor falls delinquent on car payments following a Chapter 7, he or she is very likely to file Chapter 13 to keep the vehicle (and thus their job).

Instead it is car creditors, desirous of uniform nation standards that do not require differentiation between states, that want reaffirmations. Appropriately shifting the some of the onus for these reaffirmations to the creditor would increase the efficiency of the process.

For a copy of the opinion, please see:

Macy- Reaffirmation Is Voluntary for Both Debtor and Creditor

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.

Tagged with:

Leave a Reply