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Reaff Order Must Be Entered Before Discharge is Entered
Nate:
Besides your inherent charm and brilliance, what were the grounds? All the
case law seems to go against your result, except that I have not yet seen a
case which directly addressed the issue of whether the creditor filed a
claim as required by 521(a)(6). The recent 9th circuit In re Dumont case,
the court stated that Ford had filed a claim, but did not otherwise address
the issue.
Pat
Patrick T. Green, Esq.
Fitzgerald & Green
Attorneys at Law
1010 E. Union Street
Suite 206
Pasadena, CA 91106
Tel: 626-449-8433
Fax: 626-449-0565
pat@fitzgreenlaw.com
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Just so you know, I was able to vacate a discharge temporarily and get the reaf. signed and approved on a Ford debt in the Santa Barbara court.
I know you can't do it, but Judge Riblet allowed it. I now have to do another one and I hope she will still do the same.
Nate Berneman
Jon Hayes wrote: Its scary what you don't know.
In re Engles, ---- B.R. ----, 2008 WL 555009 (Bkrtcy M.D. Okla,
Feb. 2008)
Issue: Can the bankruptcy court "temporarily" vacate the discharge
on the debtor's motion for the purpose of permitting entry of an
order approving a reaffirmation agreement?
Holding: No.
Judge Terrence Michael
The debtors executed a reaffirmation of a debt on a vehicle. They
sent it to the lender, Regions Bank. "For reasons unknown to the
parties, the Agreement was apparently delayed in reaching its
destination and was never filed with the Court." The discharge was
entered and the car repo'ed. The debtors then moved the court, under
FRCP60(b), to vacate the discharge for the purpose of entering an
order of reaffirmation. The car had equity and the debtors, at all
times, were current with the monthly payments. The court denied the
motion.
"Because of the serious consequences associated with reaffirmation-
that the debtor will remain liable for an otherwise dischargeable
debt-strict compliance with the terms of 524 is mandatory. Based
on the plain language of 524(c)(1), which mandates that an
agreement must be made before the granting of the discharge in order
to be enforceable, the execution of a reaffirmation agreement after
the granting of the discharge renders that agreement unenforceable as
a matter of law."
As to vacating the discharge, the court said that under Section 727
(d) and (e), only "the trustee, a creditor, or the United States
trustee" has the ability to revoke a debtor's discharge. As to the
equitable power of the court to vacate the discharge, "[A] bankruptcy
court's supplementary equitable powers under [section 105] may not be
exercised in a manner that is inconsistent with the other, more
specific provisions of the Code."
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Just so you know, I was able to vacate a discharge temporarily and get the reaf. signed and approved on a Ford debt in the Santa Barbara court.I know you can't do it, but Judge Riblet allowed it. I now have to do another one and I hope she will still do the same.Nate BernemanJon Hayes <Jhayes@polarisnet.net> wrote: Its scary what you don't know. In re Engles, ---- B.R. ----, 2008 WL 555009 (Bkrtcy M.D. Okla, Feb. 2008) Issue: Can the bankruptcy court "temporarily" vacate the discharge on
the debtor's motion for the purpose of permitting entry of an order approving a reaffirmation agreement? Holding: No. Judge Terrence Michael The debtors executed a reaffirmation of a debt on a vehicle. They sent it to the lender, Regions Bank. "For reasons unknown to the parties, the Agreement was apparently delayed in reaching its destination and was never filed with the Court." The discharge was entered and the car repo'ed. The debtors then moved the court, under FRCP60(b), to vacate the discharge for the purpose of entering an order of reaffirmation. The car had equity and the debtors, at all times, were current with the monthly payments. The court denied the motion. "Because of the serious consequences associated with reaffirmation- that the debtor will remain liable for an otherwise dischargeable debt-strict compliance with the terms of 524 is
mandatory. Based on the plain language of 524(c)(1), which mandates that an agreement must be made before the granting of the discharge in order to be enforceable, the execution of a reaffirmation agreement after the granting of the discharge renders that agreement unenforceable as a matter of law." As to vacating the discharge, the court said that under Section 727 (d) and (e), only "the trustee, a creditor, or the United States trustee" has the ability to revoke a debtor's discharge. As to the equitable power of the court to vacate the discharge, "[A] bankruptcy court's supplementary equitable powers under [section 105] may not be exercised in a manner that is inconsistent with the other, more specific provisions of the Code."
Be a better friend, newshound, and
know-it-all with Yahoo! Mobile. Try it now.
The post was migrated from Yahoo.
Its scary what you don't know.
In re Engles, ---- B.R. ----, 2008 WL 555009 (Bkrtcy M.D. Okla,
Feb. 2008)
Issue: Can the bankruptcy court "temporarily" vacate the discharge
on the debtor's motion for the purpose of permitting entry of an
order approving a reaffirmation agreement?
Holding: No.
Judge Terrence Michael
The debtors executed a reaffirmation of a debt on a vehicle. They
sent it to the lender, Regions Bank. "For reasons unknown to the
parties, the Agreement was apparently delayed in reaching its
destination and was never filed with the Court." The discharge was
entered and the car repo'ed. The debtors then moved the court, under
FRCP60(b), to vacate the discharge for the purpose of entering an
order of reaffirmation. The car had equity and the debtors, at all
times, were current with the monthly payments. The court denied the
motion.
"Because of the serious consequences associated with reaffirmation-
that the debtor will remain liable for an otherwise dischargeable
debt-strict compliance with the terms of 524 is mandatory. Based
on the plain language of 524(c)(1), which mandates that an
agreement must be made before the granting of the discharge in order
to be enforceable, the execution of a reaffirmation agreement after
the granting of the discharge renders that agreement unenforceable as
a matter of law."
As to vacating the discharge, the court said that under Section 727
(d) and (e), only "the trustee, a creditor, or the United States
trustee" has the ability to revoke a debtor's discharge. As to the
equitable power of the court to vacate the discharge, "[A] bankruptcy
court's supplementary equitable powers under [section 105] may not be
exercised in a manner that is inconsistent with the other, more
specific provisions of the Code."
The post was migrated from Yahoo.