Posted by NCBRC - August 11th, 2020
The Ninth Circuit found that a debtor who assumes a lease under Section 365(p) of the Bankruptcy Code waives her right to discharge of debt arising out of that lease. Bobka v. Toyota Motor Credit Corp., No. 18-55688 (9th Cir. Aug. 3, 2020).
The debtor filed her chapter 7 petition in 2016. She had an ongoing lease with Toyota Motor Credit on her Toyota Rav4. The trustee opted not to assume the lease. In September 2016, the debtor called Toyota about keeping the vehicle. Toyota agreed and sent her and her attorney a lease assumption agreement. She did not return the agreement until December 5, well more than 30 days after she orally told Toyota she wanted to keep the vehicle. The next day, the debtor received her bankruptcy discharge. Read More
Posted by NCBRC - November 17th, 2017
“A party to a reaffirmation agreement cannot bootstrap contract terms into the reaffirmation agreement through inconspicuous additions to the statutory disclosures on a form represented to be a Director’s Form.” In re Jenkins, No. 17-30753 (Bankr. S.D. Ohio Sept. 26, 2017).
Chapter 7 debtor, Tracy Michelle Jenkins, entered into a reaffirmation agreement with KH Network Credit Union concerning Ms. Jenkins’ 2015 Volvo. After Ms. Jenkins received her discharge, the Credit Union rescinded the reaffirmation agreement. The Credit Union pointed to language it had added to the “Disclosure Statement” on Director’s Form 2400A, in which it asserted a right to rescind the agreement in the manner it followed. Read More
Posted by NCBRC - March 29th, 2016
The debtors failed to rebut the presumption of undue hardship in their motion to reaffirm two vehicle loans for newer, high-cost vehicles. In re Nielsen, 2016 Bankr. LEXIS 456, No. 15-1596 (Bankr. N.D. Iowa Feb. 12, 2016). Read More
Posted by NCBRC - October 27th, 2015
The court was powerless to permit the pro se debtor to rescind her reaffirmation agreement with her car creditor where she failed to rescind the agreement within the sixty-day time limit set forth in section 524(c)(4). In re Galloway-O’Connor, 2015 Bankr. LEXIS 3283, No. 15-70981 (Bankr. E.D. N.Y. September 29, 2015). Read More
Posted by NCBRC - September 1st, 2015
A post-discharge debt repayment agreement violated the discharge injunction because it was neither voluntary nor supported by new consideration. Venture Bank v. Lapides, No. 14-3085 (8th Cir. Aug. 25, 2015).
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Posted by NCBRC - August 28th, 2015
Bank of America’s failure to provide the debtor with a written reaffirmation agreement during the pendency of her bankruptcy led the court to deny its motion to reopen and compel surrender. In re Rodriguez, No. 12-12043 (Bankr. S.D. Fla. Aug. 12, 2015). Read More
Posted by NCBRC - February 13th, 2015
The debtor filed for chapter 13 relief after having received a discharge in chapter 7 less than one year earlier. During her chapter 7 she neither reaffirmed the non-purchase money loan secured by her truck nor redeemed it. In her chapter 13 she sought to pay the debt secured by the truck, as well as other debt. The lender objected to confirmation of the plan and sought relief from stay to exercise its rights against the truck. The court denied the motions by the trustee and confirmed the debtor’s plan. In re Francis, No. 14-42974 (Bankr. N.D. Tex. Jan. 7, 2015). Read More
Posted by NCBRC - April 7th, 2014
Three recent cases involve sanctions for violation of the discharge injunction by a creditor filing suit in state court over a debt discharged in bankruptcy. King v. Williams (In re King), No. 12-3701 (8th Cir. March 5, 2014); In re Gracia, No. 13-1373 (B.A.P. 9th Cir. April 4, 2014); In re Hopkins, No. 09-5835 (Bankr. S.D. Ia. April 1, 2014). Read More
Posted by NCBRC - January 2nd, 2014
Some banks are refusing to enter into post-discharge mortgage modification agreements when debtors have not reaffirmed the debt in bankruptcy. In In re Conner, No. 09-42532 (Bankr. S.D. Ga. Oct. 25, 2013), the debtor moved to reopen his chapter 7 bankruptcy in order to reaffirm his mortgage and clear the way to enter into a mortgage modification agreement with Wells Fargo. Read More
