In re Pitts

462 B.R. 844, 23 Fla. L. Weekly Fed. B 207, 2012 WL 29096, 2012 Bankr. LEXIS 6
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedJanuary 6, 2012
DocketNo. 8:09-bk-03914-MGW
StatusPublished
Cited by2 cases

This text of 462 B.R. 844 (In re Pitts) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Pitts, 462 B.R. 844, 23 Fla. L. Weekly Fed. B 207, 2012 WL 29096, 2012 Bankr. LEXIS 6 (Fla. 2012).

Opinion

MEMORANDUM OPINION ON CREDITOR’S MOTION TO REOPEN CASE TO ENFORCE REAFFIRMATION AGREEMENT

MICHAEL G. WILLIAMSON, Bankruptcy Judge.

In order for a reaffirmation agreement to be binding upon an individual debtor who is not represented by an attorney while negotiating the agreement, the court must hold a hearing at which the debtor appears in person and at which the court informs the debtor of the voluntary nature of the agreement and the legal consequences of entering into it. Even though most courts have long since dispensed with discharge hearings, and hearings are not required to approve reaffirmation agreements for consumer debt secured by real property, this Court finds that hearings apprising pro se debtors of their rights with respect to a reaffirmation agreement must still be held if the reaffirmation agreement is to be enforceable. Because no hearing was held in this case, the Court finds that the Reaffirmation Agreement at issue is not enforceable, and the Court will [845]*845therefore deny the Creditor’s Motion to Enforce Reaffirmation Agreement.

Factual and Procedural Background

This case was filed under Chapter 13 on March 2, 2009 and later converted to a Chapter 7 case. Upon conversion, the Debtors decided to surrender their homestead, but sought to reaffirm a debt secured by rental property that had been in the Debtor’s family for over eighty years. The Debtors entered into a Reaffirmation Agreement with the Creditor regarding this property. This agreement, which was filed on July 27, 2009, mostly mirrors the requirements set forth in 11 U.S.C. § 524, but is missing Part E (the motion for court approval).1

The Debtors received their Chapter 7 discharge on November 19, 2009. There was no discharge hearing held in the case, as it is the practice of the court in the Middle District of Florida not to hold discharge hearings. Nor was there any hearing held to advise the Debtors of their rights with respect to the Reaffirmation Agreement. The case, having been fully administered, was thereafter closed.

After the case was closed, the Creditor foreclosed on the rental property based on the Debtor’s failure to make payments under the Reaffirmation Agreement. The Creditor now seeks to enforce the Reaffirmation Agreement so that it may obtain a deficiency judgment. In response, the Debtors have asserted that their liability for any deficiency was discharged in their bankruptcy case notwithstanding the Reaffirmation Agreement. In this respect, they contend that the Reaffirmation Agreement is not binding because it was not entered into in strict compliance with the requirements of Bankruptcy Code § 524. The Creditor now moves the Court for an order confirming that the Reaffirmation Agreement is binding upon the Debtors.

Conclusions of Law

The Court has jurisdiction over this contested matter under 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), (I), and (O).

The reaffirmation provisions are set forth in Bankruptcy Code § 524. While this section is, at its heart, a predominantly consumer provision, it is among the most complicated provisions of the Bankruptcy Code. Accordingly, in determining whether the Reaffirmation Agreement at issue complies with those provisions, the Court will walk through §§ 524(c) and (d) prior to reviewing the relevant case law.

Section 52i(c)

Under § 524(c), certain requirements must be satisfied in order for a reaffirmation agreement to be valid and binding on the debtor. To begin with, § 524(c)(1) requires that a reaffirmation agreement must be made before the discharge is granted.2 In this case, the Reaffirmation Agreement was made over three months before the discharge was granted, so this requirement is met.

Next, § 524(c)(2) provides “the debtor must receive the disclosures described in subsection (k) at or before the time at which the debtor signed the agreement.”3 Subsection (k) requires a disclosure statement as described in § 524(k)(3), together with the reaffirmation agreement, and the statement, declaration, motion, and order described, respectively, in sub-paragraphs (4) through (8) of § 524(k).

Relevant to this case, § 524(k)(3) requires a disclosure statement containing the following information. First, “[i]f you [846]*846don’t have an attorney helping you, the judge will explain the effect of your reaffirming a debt when the hearing on the reaffirmation agreement is held.”4 This disclosure is included in the Reaffirmation Agreement filed in this ease, although the hearing was not held. Second, “[i]f you were not represented by an attorney during the negotiation of your reaffirmation agreement, you must have completed and signed Part E.”5 Part E includes a motion for approval and a form of order approving the motion.6 While this disclosure was included in the Reaffirmation Agreement, and while the front page of the agreement states it is included, Part E was not filed. For purposes of this Opinion, the Court concludes that any issue about the Debt- or’s technical failure to include the Part E motion for approval is subsumed in the issues dealt with in this Opinion.

Finally, the disclosure statement required by § 524(k)(3), must contain the following additional statement:

[i]f you were not represented by an attorney during the negotiation of your reaffirmation agreement, it will not be effective unless the court approves it. The court will notify you of the hearing on your reaffirmation agreement. You must attend this hearing in bankruptcy court where the judge will review your reaffirmation agreement. The bankruptcy court must approve your reaffirmation agreement as consistent with your best interests, except that no court approval is required if your reaffirmation agreement is for a consumer debt secured by a mortgage, deed of trust, security deed, or other lien on your real property, like your home.7

This disclosure is also included in the Reaffirmation Agreement. For purposes this Opinion, the Court assumes that this debt is a consumer debt secured by real property.8 As such, no Court approv-is necessary, and thus, no hearing for approval of the agreement was held in this case.

Returning to the requirements under § 524(c), subsection (3) requires that the agreement must be filed with the court, and if the debtor is represented by an attorney, that the agreement is accompanied by a declaration or affidavit of the attorney that basically states that the attorney has informed the debtor of the debtor’s rights (and any legal consequences) and that the agreement will not impose an undue hardship on the debtor.9 Because the Debtors are not represented by an attorney in this case, that part is inapplicable. The filing requirement set out by the first part is met, as the Reaffirmation Agreement in this ease was filed on July 27, 2009.

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Cite This Page — Counsel Stack

Bluebook (online)
462 B.R. 844, 23 Fla. L. Weekly Fed. B 207, 2012 WL 29096, 2012 Bankr. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pitts-flmb-2012.