Thursday, December 15, 2011

Reaffirmations - Secured Debt

- Written by Lindsey Gardner, Law Clerk, Heartland Bankruptcy

A secured debt consists of debt backed by collateral, for instance a home mortgage is backed by the home itself and a car payment is backed by the car. Debtors may choose to keep their secured property by use of a redemption or a reaffirmation agreement. Redemptions allow debtors to redeem the property by purchasing it from the creditor with a lump sum payment. Reaffirmations allow debtors to ‘redo’ the agreement with the creditor. The Federal Bankruptcy “Code permits reaffirmations of unsecured as well as secured debt.” In Re Kinion, 207 F.3d 751 (5th Cir. 2000).

The new agreement can have the same terms as the old one or set forth a new amount owed and terms of repayment, allowing possibly for better terms to be negotiated. As long as the terms of the new agreement are kept current, the debtor can keep the property. This is especially helpful when the property being reaffirmed is an essential item, such as a car as the only means of transportation. Under reaffirmation agreements the creditor must include certain disclosures about the reaffirmation. 11 U.S.C § 524(c).

As long as an attorney represents the debtor and the debtor's budget shows they can afford the payments, upon signing the agreement it becomes effective immediately. If the debtor is not represented by an attorney, he/she must file the agreement with the court, appear at a court hearing, and get the approval of the bankruptcy judge. Nothing in the Bankruptcy Code stops the debtor from voluntarily repaying any debt; however case law suggests that not reaffirming on property such as a vehicle may be grounds for repossession in some states, including Missouri. In addition, if the debtor reaffirms the debt and subsequently defaults on the payments, the debtor then becomes responsible for the debt as though he/she never filed bankruptcy. Be sure to read all agreements carefully and that the debtor can afford to make any payments agreed to.

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