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
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