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Requirements for Creating a Reaffirmation Agreement

Posted on in Loan Modification

Requirements for Creating a Reaffirmation AgreementAfter bankruptcy filers discharge their debts, unsecured creditors may lose the ability to seek or enforce repayment. The debtor can voluntarily repay the creditor in order to keep a property but has no contractual obligation to make continued payments. In some cases, the debtor may choose to reaffirm the debt. The debtor signs a new agreement that requires him or her to repay the debt. As an incentive, the creditor may offer to refinance the debt into terms that are more manageable for the debtor. However, courts will not enforce a reaffirmation agreement unless you met the legal requirements in creating it. You could instead be liable for damages to the debtor if the court rules that the agreement violated the bankruptcy discharge injunction.

Deadline

You must meet two deadlines in order to file a reaffirmation agreement with a debtor:

  • The agreement must be filed no later than 60 days after the first meeting of creditors unless the bankruptcy court gives you an extension; and
  • The agreement must be filed before the debts are discharged as part of a bankruptcy.

The deadlines mean that you must discuss and complete the reaffirmation agreement while the bankruptcy case is ongoing. Once a debt has been discharged, you cannot create a new agreement that requires payment of the same debt from the same party. Even if the debtor agrees to reaffirm the debt, a court will likely rule that the contract is unenforceable. However, a third party who was not involved in the bankruptcy could agree to take on the debt.

Voluntary Agreement

You must be careful about how you approach a debtor about a reaffirmation agreement because you are not allowed to coerce someone into reaffirming a debt. The debtor must voluntarily enter a reaffirmation agreement. As part of a reaffirmation agreement, the debtor must sign an affidavit that states:

  • The debtor is choosing to reaffirm the debt;
  • The debtor understands the legal ramifications of reaffirming the debt; and
  • The reaffirmation will not cause undue hardship to the debtor or any of his or her dependents.

Contact a Chicago Creditor’s Rights Lawyer

A bankruptcy filer may be motivated to reaffirm a debt if you have a security interest in a property. The filer may also want to protect a co-signer on the loan from being liable for the debt. A Chicago creditor’s rights attorney at Walinski & Associates, P.C., can advise you on how to create an enforceable reaffirmation agreement. To schedule a consultation, call 312-704-0771. 

Source: 

https://www.law.cornell.edu/uscode/text/11/524

Illinois Creditors Bar Association Chicago Bar Association Illinois State Bar Association
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