Expert: Mark J. Markus- California Bankruptcy Attorney - 4/3/2009

Question
Northern California, represented by an attorney. BK7 was discharged, then closed in Dec 2008. I should note that when I showed up for my original Trustee meeting in Oak, the Trustee stated that my case had been dismissed because he had not received ANY of my filing to review. My attorney begged him for an extension citing “staffing issues”. I was granted a 3 weeks extension. This is also the time when I was notified that my residential address was filed with the last two house numbers reversed (my attorney never fixed that either).
On my primary filing I stated that I intended to retain my vehicle. I called the lien holder (creditor) to notify them of my intent. Because I was represented, they faxed the form to my attorney for me to sign. I signed the document in my attorney’s office (I recall, but don’t have proof of any kind). My attorney never returned the document to the creditor. At my next Trustee meeting, I filled out the BK questionnaire marking the box “Yes” meaning that I had signed the doc with “Intent to Retain” my vehicle property. I also answered “Yes” to this question when during the recorded meeting with the Trustee (2nd/final meeting).  
My creditor said that as long as I continue to pay on time, it’s not a problem for them. My problem: The on-time payments are not being reported to the Credit Agencies giving me the ability to rebuild my credit. The creditor stated that they are not able/willing to simply have me sign another Reaffirmation to Retain Debt since my BK has been closed. My attorney stated that “it’s no big deal” and to “leave it alone, your BK has been discharged, I did my job.” He stated that if I demand my BK case to be reopened for the sole purpose of Reaffirming my vehicle debt, that he would start by charging me $500-something dollars just for the filing fee. This is obviously a colossal administrative error on his part, but what steps can I take to get the debt reaffirmed? Is there a code that was violated on the part of my attorney that I can cite to encourage him to correct this “oversight”? Can I reopen my closed BK case myself for the purpose of getting this document included? What are my options? This is my only goal.

Answer
First of all, there's no way to reaffirm a debt after the discharge has been entered.  The only way to theoretically do it would be to file a Motion to reopen your case, revoke your discharge, enter the reaffirmation agreement, then somehow apply for another discharge.  I can't fathom a judge granting all of that.  In fact, I don't even think the court has jurisdiction to do it even if it wanted to.

Second, you're much better off not having entered into a reaffirmation agreement.  You have the best of both worlds right now:  You get to keep your vehicle as long as you maintain payments, but if you are unable to make the payments in the future, you can surrender the vehicle with no further obligation.   Contrast this with if you entered into a reaffirmation agreement, if you missed any payments on the vehicle, the creditor can repossess it AND you'd owe the balance due under the agreement.

While I agree your attorney messed up by not filing the agreement you wished, I think he's correct in this instance that it's no big deal.