Notice Regarding Reaffirmation Agreements

Release Date: 
Monday, April 3, 2006

Click here for full document

 

NOTICE REGARDING REAFFIRMATION AGREEMENTS

11 U.S.C. §524(c) and (k) clearly prescribe the language required in a reaffirmation agreement. A reaffirmation agreement that does not comply with the requirements of these
subsections will be considered deficient and may be stricken.

The Court has made a determination regarding the actions that should be taken for the various types of reaffirmation agreements:

Reaffirmation with Attorney Certification

- If the debtor’s attorney certifies that the agreement does not impose an undue hardship on the debtor, neither a motion nor court action is required.

- If the debtor’s attorney certifies that a presumption of undue hardship has been established with respect to an agreement, a motion for approval of the reaffirmation agreement is
required pursuant to L.B.R. 4008-1. The motion shall be filed in the ECF event “Motion for Approval of Reaffirmation Agreement - Presumption of Undue Hardship Applies.”
Otherwise, a notice of deficiency will issued. Such a motion will be set for hearing.

Reaffirmation by a Debtor Not Represented by an Attorney in the Case

- If a reaffirmation agreement is filed and the debtor is not represented by an attorney in the bankruptcy case, the debtor must sign a motion for approval of the reaffirmation agreement
pursuant to 11 U.S.C. §524(k)(7), attached as Part E. The reaffirmation agreement, including Parts A-E shall be filed in ECF with the event “Reaffirmation Agreement by Debtor Not Represented by An Attorney.” Otherwise, a notice of deficiency will be issued. Such a motion will be set for hearing. The creditor may file the motion even though the
motion is signed by the debtor.

Reaffirmation by a Debtor Represented by an Attorney Who Did Not Negotiate the Agreement
-This circumstance will be addressed in the same way as a reaffirmation by a debtor not represented by an attorney in the bankruptcy case.

In addition, if a reaffirmation agreement is signed by the debtor’s attorney but the attorney has failed to certify whether or not the agreement will pose an undue hardship, a notice of deficiency will be issued and the pleading may be stricken if not corrected.