[CNYBBA-LISTSERV] Reaffirmations.

[Louis L. Levine]

I don't think section 524(e) is relevant, that just says that the non-debtor (son) is not shielded by the discharge of the debtor (father); the question is whether the secured creditor can repo and the answer depends on whether the secured creditor has a basis for repo, which is determined solely by state law; even if there is a default termination of the stay for failure to reaffirm the creditor cannot repo unless he has a basis under state law and the only basis under state law is a default under the contract (UCC Section 9-601 Official Comment 3) so reference must be made to the terms of the contract and there is no reason why the contract cannot say that failure of any obligor to reaffirm is a default 
 

MELVIN & MELVIN, PLLC 
Louis Levine, Esq. 
217 South Salina Street 
Seventh Floor 
Syracuse, New York 13202 
315-422-1311 voice 
315-479-7612 fax 
llevine at melvinlaw.com 

-----Original Message-----
From: cnybba-bounces at cnybba.org [mailto:cnybba-bounces at cnybba.org]On Behalf Of Ruth Babbitt
Sent: Thursday, June 08, 2006 3:05 PM
To: Central New York Bankruptcy Bar Association
Subject: Re: [CNYBBA-LISTSERV] Reaffirmations.



Father need not sign reaffirmation agreement because son's discharge will not affect father's obligation. Section 524(e). I assume your concerns here are founded on Sections 521(a)(2)/362(h)(1) and Section 521(a)(6), which when read together with Section 521(d) give life to insolvency/bankruptcy ipso facto clauses and effectively eliminate the so-called "fourth" (Boodrow) option on obligations secured by personal property. However, if the debtor reaffirms within the time (30 days?/45 days?) so limited, those provisions are defused.

Query. Suppose son is willing to reaffirm for the full car loan amount, but refuses to sign the reaffirmation prepared by lender's counsel because it adds lender's counsel's attorney's fees to the loan amount. Is son protected by Section 362(h)(1)(B) provision that reads: "unless such statement [of intention] specifies the debtor's intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms." ? In other words, is the creditor's request for attorney's fees something beyond the original contract terms - even if the contract contains an attorney's fees clause in lender's favor? 

-Ed Crossmore

 

Ruth Babbitt 
Secretary to Edward Y. Crossmore, Esq. 
The Crossmore Law Office 
115 West Green Street 
Ithaca, New York  14850 
Tel.:  (607) 273-5787 
Fax:  (607) 273-0291 

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-----Original Message-----
From: cnybba-bounces at cnybba.org [mailto:cnybba-bounces at cnybba.org]On Behalf Of TampaStomp at aol.com
Sent: Wednesday, June 07, 2006 4:43 PM
To: cnybba at cnybba.org
Subject: [CNYBBA-LISTSERV] Reaffirmations.



Question:
 
    Father and son are on title to car and are co-obligors.  Father files Chapter 7 Bankruptcy.  Does father need to sign reaffirmation agreement?  Son is in possession of car and is making the payments.  If father does not sign reaffirmation agreement, may lender repossess the car from the son?
 
    Your thoughts are appreciated.
 
Russell


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