Expert: Mark J. Markus- California Bankruptcy Attorney - 10/13/2010

Question
I financed a mobile home for my 83 year old mother. I owe  a note on it with a private party. She lives in it alone and pays everything, all payments are current. I filed a Ch 7 in CA in June 2010. I listed that I wanted to surrender my car but keep the mobile. It was listed as an federal wildcard exemption. I just received a notice of case closed without discharge due to my forgetting to file the second credit counseling certificate. In researching how to reopen the case and file the cert. I came across info re. a reaffirmation agreement. Should/can I file this when I reopen the case to protect the mobile from repossession?  

Answer
That's a very good question.   From my reading of the Code, you can file a reaffirmation agreement any time prior to discharge, so if your discharge wasn't granted, you should be able to reopen the case for the purpose of filing a reaffirmation agreement and attending a hearing with the judge on that.   The bigger question is whether you really need to do that.

Most creditors will not repossess as long as you remain current with payments, although technically they have the legal right to seek to do so if you do not reaffirm.  If you reaffirm, you will be obligating yourself to make all payments due under the Note despite your bankruptcy, so that if your mother at some point defaults on the payments, you will be liable for any deficiency balance owed after the vehicle is repossessed and sold.  I don't know how much is owed on it, but that is something you should carefully consider before doing a reaffirmation agreement.

Mark J. Markus, Attorney at Law
http://www.bklaw.com/