Signed a reaffirmation agreement, BK has been discharged, the creditor never signed

[RW3]

Is it still valid?

[DebtEnder]

No and you have the best of both, you made good faith effort to reaffirm, creditor failed on their end. As such they can't come back later and try to take back property, car house whatever at a later date just because you filed BK.

[tcreegan]

Keep asking the easy one RW3...

Signed a reaffirmation agreement, BK has been discharged, the creditor never signed
Is it still valid? .....No.

[RW3]

well I spoke to my BK attorney and he told me that the reaffirmation I got off PACER was the one that was filed with the court by the creditor. I told him that they did not sign, and asked if it was still binding. He says he believes it is. I'm going to meet with another attorney next week to show them a copy of it, I'm wondering if it can be thrown out by a judge since they did not sign, or I can use it as ammo to get the servicer of my underwater HELOC to settle. I'm not in a hurry time is on my side.

[enuffznuff]

A contract has to be signed by both parties to be binding. If they signed one somewhere else and filed it, and you just have an unsigned copy, that's different, but if they've not signed it at all, it's not a contract.

Unless by filing it and signing elsewhere it has the same effect.

[DebtEnder]

Just to be sure if your within 60 days just rescind your reaffirm and be 100% sure.

[RW3]

Well I went back on to Pacer and the creditor is not in the list of filers. Looks like my attorney was the one who filed? But how can that be valid, isn't the creditor the one that files? Anyways I had signed another reaffirmation for my car, and that one was singed by the creditor with a date as well. I'm thinking I may be on to something here, looking forward to talking to the attorney next week!

I would also mention that the auto company is on my list of filers as well. Something isn't adding up with this HELOC reaffirmation....

[tcreegan]

Hi again RW3,

Reaffirmations can be filed by debtor, creditor, or attorney, shouldn't make a difference.

Another wrinkle would be your attorney signing off on the reaffirmation. The reaff needs to be approved by either your attorney or the BK judge. If your attorney did not approve it, you would need to appear b4 the BK judge in a hearing.

But, with the ability to rescind any reaffirmation within 60 days....doesn't matter what happened (or not) if you don't want to reaffirm, rescind

Tom in Colo

[RW3]

HI

My attorney did sign off on the reaffirmation. My Bk was already discharged back in 2009. My question/concern is if the reaffirmation is no longer valid due to the filed documents not having a creditors signature on them.

I did find one example online:

The Turner case
In Turner, the debtor submitted a reaffirmation agreement to the Court which indicated that the debtor would pay
a pre-petition installment loan "according to its original terms and conditions notwithstanding the debtor's
bankruptcy filing." The debtor signed a reaffirmation agreement, but the creditor did not sign the agreement, nor
did the agreement provide for the creditor's signature.
The Bankruptcy Court noticed that the reaffirmation agreement was not executed by the creditor and set a
hearing to determine the validity of the reaffirmation agreement. The Court held that the agreement was not
effective, and the debtor appealed. The District Court affirmed the Bankruptcy Court's decision, and the debtor
appealed to the Seventh Circuit Court of Appeals.
In determining the validity of the reaffirmation agreement, the Court of Appeals noted that Section 524 of the
Bankruptcy Code was designed to ensure that the debtor agrees to reaffirm a pre-petition debt with the debtor's
best interest in mind. By reaffirming the debt, the debtor is foregoing discharge of the debtor's personal liability
for the debt and, consequently, is compromising the "fresh start" afforded the debtor as a result of the bankruptcy
filing.
Requirements for a reaffirmation agreement
In Turner, the Court of Appeals listed the following express requirements for an effective reaffirmation agreement
pursuant to Section 524 of the Bankruptcy Code: The agreement must be filed with the bankruptcy court.
The agreement must contain a clear and conspicuous statement advising the debtor that he or she can rescind the
agreement within 60 days after it is filed or at any time prior to discharge.
If the debtor is represented by counsel, the debtor's counsel must include a declaration that the debtor is
voluntarily entering into the agreement, that he or she is fully informed, that the agreement does not impose an
undue hardship, and that counsel advised the debtor of the legal effect and consequences of the agreement and
any default under the agreement.
If the debtor has no counsel, the Court must hold a hearing to determine that the execution of the agreement is
voluntary, with full information, and will not impose an undue hardship on the debtor.
The debtor in the Turner case argued that Section 524 does not expressly require the creditor's signature and,
because the debtor was current in installment payments, he had a right to reaffirm without the creditor's consent
(or to continue to make payments as they come due without reaffirming the debt). Therefore, argued the debtor,
the creditor's consent was not required in the reaffirmation agreement.
The debtor also argued that the creditor acquiesced to the reaffirmation, and an actual signature on a
reaffirmation agreement was not required. The debtor compared a reaffirmation agreement to other contracts
which are enforceable despite the lack of a written agreement.
The Court rejected these arguments and held that Section 524 of the Bankruptcy Code requires both the
creditor and the debtor to evidence their agreement to reaffirmation in writing. The Court explained that a
reaffirmation agreement is distinct and unique to the bankruptcy process and, although Section 524(c) does not
expressly require a creditor's signature, it clearly envisions an agreement.

The Court noted that the creditor's signature provides evidence that the creditor is aware of the reaffirmation and
has consented to its terms. Accordingly the Court refused to honor or enforce the reaffirmation agreement
without the creditor's signature.
Comment
Recently reaffirmation agreements have received a great deal of scrutiny as a result of their widespread and often
inappropriate use by retailers. The Turner decision underscores the need to comply with the Bankruptcy Code's
stringent requirements for enforcing reaffirmation agreements. The cautious creditor should take precautions to
ensure that its reaffirmation agreements comply with the requirements explicitly set forth in the Bankruptcy Code,
as interpreted by the Turner Court, including the consent of both parties evidenced by the written agreement of
both parties.

[AngelinaCatHub]

No and you have the best of both, you made good faith effort to reaffirm, creditor failed on their end. As such they can't come back later and try to take back property, car house whatever at a later date just because you filed BK.

Well, not exactly. If the OP wish to "pay through" he can keep the stuff, but if he fails to pay, the auto stay is over once discharged. He cannot be sued if he lets the stuff go back however, for any deficiency. 'Hub

[DebtEnder]

Hence the part about, "just because he filed bankruptcy" As in nothing else changed regarding creditor debtor relationship. Paying as before was implied.

[tcreegan]

Hi again RW3,

The Turner case seems to reinforce the fact that a contract has to be signed by all parties involved. Legally pretty basic, I don't see how filing it w/ the court constitutes a signing.

Tom in Colo