ch 7 reaffirm..... then let it go back

[samtaylor]

ok so we had filed chapter 13 and then we converted to ch 7.... we reaffirmed with state farm bank oustide of the courts... according to the courts the car was given back and included in the ch 7.... we did everything one on one with state farm.... the car was having major problems and we couldnt fix it and make the payments.... so we let them come and get it.... my question is ... is there anything legally that they can do since according to the courts it was included in the bk anyway?



please advise of what you know or what you think

[keepmine]

ok so we had filed chapter 13 and then we converted to ch 7.... we reaffirmed with state farm bank oustide of the courts... according to the courts the car was given back and included in the ch 7.... we did everything one on one with state farm.... the car was having major problems and we couldnt fix it and make the payments.... so we let them come and get it.... my question is ... is there anything legally that they can do since according to the courts it was included in the bk anyway?



please advise of what you know or what you think

It is impossible to reaffirm outside the courts. The code is pretty specific. You must have a properly signed AND filed reaffirmation agreement.
What exactly did you do?

[samtaylor]

we called state farm and told them we wanted to reafirm with them.... they told us to pay 5,000.00 over a 12 month period and then the car would belong to us..... we just signed a paper from them thats it... it didnt go through our attorney or the courts.... on our credit reports it shows that it is included in ch 7.... i was just wondering since it didnt go through the courts could they do anything to us

[6ftladycop]

My car was leased, but since I had two more years to go, they sent me what GMAC calls a "Lease Acknowledgment agreement". I signed it and it did not go through the courts either. I did this directly with their bankruptcy department.....which I had no idea they had.

[samtaylor]

this was just a paper that was typed up that had the arrangements on it....

[CindyLou]

hmmmm..that doesn't sound like a reafirmation agreement to me. That just sounds like an "agreement" to me, which probably wouldn't hold much water. Sounds more like a ride through than anything. A ride through is when you include something in a BK and the creditor allows you to keep it as long as you continue to make the payments. I would check with our attorney to be sure, but the law is pretty clear. If it is discharged, it is discharged. Nothing can undo that. You can pretty much call them to pick it up and you are done. Keep us posted.

[keepmine]

You don't have a reaffirmation agreement.

http://doney.net/bkcode/11usc0524.htm

Begin with paragraph {c]


c) An agreement between a holder of a claim and the debtor, the consideration for which, in whole or in part, is based on a debt that is dischargeable in a case under this title is enforceable only to any extent enforceable under applicable nonbankruptcy law, whether or not discharge of such debt is waived, only if--

(1) such agreement was made before the granting of the discharge under section 727, 1141, 1228, or 1328 of this title;

(2) the debtor received the disclosures described in subsection (k) at or before the time at which the debtor signed the agreement;

(3) such agreement has been filed with the court and, if applicable, accompanied by a declaration or an affidavit of the attorney that represented the debtor during the course of negotiating an agreement under this subsection, which states that--

(A) such agreement represents a fully informed and voluntary agreement by the debtor;

(B) such agreement does not impose an undue hardship on the debtor or a dependent of the debtor; and

(C) the attorney fully advised the debtor of the legal effect and consequences of--

(i) an agreement of the kind specified in this subsection; and

(ii) any default under such an agreement;

(4) the debtor has not rescinded such agreement at any time prior to discharge or within sixty days after such agreement is filed with the court, whichever occurs later, by giving notice of rescission to the holder of such claim;

(5) the provisions of subsection (d) of this section have been complied with; and

(6)

(A) in a case concerning an individual who was not represented by an attorney during the course of negotiating an agreement under this subsection, the court approves such agreement as--

(i) not imposing an undue hardship on the debtor or a dependent of the debtor; and

(ii) in the best interest of the debtor.

(B) Subparagraph (A) shall not apply to the extent that such debt is a consumer debt secured by real property.

(d) In a case concerning an individual, when the court has determined whether to grant or not to grant a discharge under section 727, 1141, 1228, or 1328 of this title, the court may hold a hearing at which the debtor shall appear in person. At any such hearing, the court shall inform the debtor that a discharge has been granted or the reason why a discharge has not been granted. If a discharge has been granted and if the debtor desires to make an agreement of the kind specified in subsection (c) of this section and was not represented by an attorney during the course of negotiating such agreement, then the court shall hold a hearing at which the debtor shall appear in person and at such hearing the court shall--

(1) inform the debtor--

(A) that such an agreement is not required under this title, under nonbankruptcy law, or under any agreement not made in accordance with the provisions of subsection (c) of this section; and

(B) of the legal effect and consequences of--

(i) an agreement of the kind specified in subsection (c) of this section; and

(ii) a default under such an agreement; and

(2) determine whether the agreement that the debtor desires to make complies with the requirements of subsection (c)(6) of this section, if the consideration for such agreement is based in whole or in part on a consumer debt that is not secured by real property of the debtor.

(e) Except as provided in subsection (a)(3) of this section, discharge of a debt of the debtor does not affect the liability of any other entity on, or the property of any other entity for, such debt.

(f) Nothing contained in subsection (c) or (d) of this section prevents a debtor from voluntarily repaying any debt.

I'd agree with Cindylynn-not sure what you'd call it-it sure ain't reaffirmation. Call your lawyer but I'm betting you have no liability.
Sears used to pull this stuff and it cost them some huge fines and sanctions.

http://www.ftc.gov/opa/1997/06/sears.shtm

By the time many states AG's were done, the settlement approached a billion dolars.

[samtaylor]

thanks for all the advice