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In re Harvey (Case No. 10-71616) 09/21/2010

The Court denied the debtor’s motion to approve a reaffirmation agreement because the attorney representing the debtor in the bankruptcy case did not sign the attorney certification. The Court rejected the argument that no certification was necessary because no negotiation took place within the meaning of § 524(c) when the creditor insisted on reaffirmation on the same terms as the original contract.  The Court concluded its responsibilities and authority with respect to approval of reaffirmation agreements are limited to those situations where (i) bankruptcy debtors are not represented by counsel in the bankruptcy case, or (ii) they are represented by counsel in cases where a “presumption of undue hardship” has arisen pursuant to the provisions of 11 U.S.C. § 524(m) and their counsel has executed the certification prescribed by § 524(k)(5)(B) that even though the presumption of undue hardship has been established, “in the opinion of the attorney, the debtor is able to make the payment.”

Date: 
Tuesday, September 21, 2010
Category: 
Chapter 7 Issues
Reaffirmation
Chapter: 
7