Republic Bank of California, N.A. v. Getzoff (In Re Getzoff)

180 B.R. 572, 33 Collier Bankr. Cas. 2d 1281, 95 Cal. Daily Op. Serv. 3515, 95 Daily Journal DAR 6076, 1995 Bankr. LEXIS 606
United States Bankruptcy Appellate Panel for the Ninth Circuit·Decided April 21, 1995·No. BAP No. CC-94-2368-MeSHa. Bankruptcy No. LA 92-24707 TD. Adv. No. 94-02623·Published·Cited by 56 cases

Opinion

OPINION

MEYERS, Bankruptcy Judge:

I

The bankruptcy court held that a guaranty executed postpetition was invalid under Section 524 of the Bankruptcy Code because it was based on a discharged debt. The creditor appeals from the summary judgment entered against it.

We AFFIRM.

II

FACTS

On November 20, 1991, Getzoff Accountancy Corporation (“GAC”) signed a promissory note and obtained a loan from SafraBank California, now known as Republic Bank of California (“Bank”). The note called for monthly payments of interest only, with the entire principal balance of $250,000 due and payable on May 20, 1992.

*573 On the same day the note was executed, Stephen Getzoff (“Getzoff”), the sole owner of GAC, executed a continuing guaranty of GAC’s obligations under the note (“First Guaranty”). Under the First Guaranty, Get-zoff promised to pay “[a]ny and all indebtedness” of GAC to the Bank. The First Guaranty stated:

The word “indebtedness” is used herein in its most comprehensive sense and includes any and all advances, debts, obligations and liabilities of Borrowers or any one or more of them, heretofore, now, or hereafter made, incurred or created, whether voluntary or involuntary and however arising, whether direct or acquired by Bank, by assignment or succession, whether due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined ....

The First Guaranty made Getzoff hable for up to $250,000 in principal, plus interest and other charges without limitation.

Getzoff and his wife filed a Chapter 7 bankruptcy petition on April 13, 1992.

On May 20, 1992, the Bank and GAC entered into an agreement under which the principal was reduced to $213,075.93 (the amount which had not been paid) and the loan was extended. The agreement was evidenced by a new note and provided for payment of the principal and interest in 24 monthly installments of not less than $10,000, commencing on June 20,1992. No additional funds were advanced. The interest rate was the same for both the first and second notes.

On the date the new note was executed, Getzoff signed another guaranty (“Second Guaranty”), guaranteeing the new obligation of GAC. The Second Guaranty was executed on a form identical to that used for the First Guaranty.

In December 1992, the Bank asked Getzoff to execute a reaffirmation agreement in support of the Second Guaranty. Getzoff did not comply with this request.

GAC made payments on the new note until July 1993. In January 1994, the Bank and GAC agreed to stipulate to a judgment allowing GAC to extend the date for repayment of the note until April 1998. After the doeu-ments were prepared, Getzoff claimed for the first time that his obligation on the Second Guaranty had been discharged in bankruptcy-

On June 28, 1994, the Bank filed a complaint for declaratory relief, seeking a declaration from the bankruptcy court that the Second Guaranty was a postpetition obligation of the Debtor which had not been discharged in bankruptcy. Getzoff answered the complaint and both parties filed motions for summary judgment.

After briefing and argument, on October 24, 1994 the bankruptcy court entered an order granting summary judgment in Get-zoffs favor. The court found that the Bank had given additional consideration in exchange for the Second Guaranty. Nonetheless, the court held that Getzoff s First Guaranty was a dischargeable debt, and that execution of the Second Guaranty postpetition was an improper attempt to reaffirm the discharged debt without complying with Section 524(c) and (d) of the Bankruptcy Code. The Bank appeals from the summary judgment order.

III

STANDARD OF REVIEW

Summary judgments are reviewed de novo. In re Florida, 164 B.R. 636, 639 (9th Cir. BAP 1994).

IV

DISCUSSION

Subject to certain exceptions enumerated in Section 523, Section 727 discharges a debt- or from all debts that have arisen before the date of the order for relief. In re Price, 871 F.2d 97, 98 (9th Cir.1989). Section 524(a) permanently enjoins all creditor actions to collect debts discharged under Section 727. In re Poule, 91 B.R. 83, 87 (9th Cir. BAP 1988). However, a debtor may voluntarily repay a discharged debt. 11 U.S.C. § 524(f). See In re Kroeger Properties and Development, Inc., 57 B.R. 821, 823 n. 3 (9th Cir. BAP 1986).

*574 The debtor also may enter into an agreement with a creditor to reaffirm an otherwise dischargeable debt. The agreement will be binding only if made in compliance with Section 524(c) and (d). In re Bowling, 116 B.R. 659, 663 (S.Ind.1990). See In re Daily, 47 F.3d 365, 367 (9th Cir.1995). Pursuant to Section 524(c) and (d), there are five requirements that must be fulfilled in order to properly reaffirm a previously discharged debt: (1) the agreement must be made prior to discharge; (2) the agreement must advise the debtor that the reaffirmation may be rescinded up to sixty days after it is filed; (3) the agreement must be filed with the court; (4) the debtor cannot already have rescinded the agreement within the proper time frame; and (5) the agreement must be in the best interest of the debtor. In re Heirholzer, 170 B.R. 938, 940 (N.Ohio 1994).

The reaffirmation rules are intended to protect debtors from compromising their fresh start by making unwise agreements to repay dischargeable debts. In re Martin, 761 F.2d 1163, 1168 (9th Cir.1985); In re Fernandez-Lopez, 37 B.R. 664, 667 n. 1 (9th Cir. BAP 1984); Bowling, supra, 116 B.R. at 664. Because of the danger that creditors may coerce debtors into undesirable reaffirmation agreements, they are not favored under the Bankruptcy Code and strict compliance with the specific terms in Section 524 is mandatory. In re Artzt, 145 B.R. 866, 868 (E.Tex.1992); In re Petersen, 110 B.R. 946, 949 (Colo.1990); In re Gardner, 57 B.R. 609, 611 (Me.1986). A reaffirmation agreement which does not comply fully with Section 524 is void and unenforceable. Artzt, supra, 145 B.R. at 868.

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Republic Bank of California, N.A. v. Getzoff (In Re Getzoff), 180 B.R. 572, 33 Collier Bankr. Cas. 2d 1281, 95 Cal. Daily Op. Serv. 3515, 95 Daily Journal DAR 6076, 1995 Bankr. LEXIS 606 (bap9 1995).

180 B.R. 572 (Republic Bank of California, N.A. v. Getzoff (In Re Getzoff)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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