July 24, 2017

Reaffirmation Agreements – Do They Make Sense?

Is “Ride-Through” still an option for Chapter 7 Debtors?

Prior to the bankruptcy law change in 2005, there was a circuit split (i.e. the courts were divided) as to whether debtors had the right to retain their vehicle and continue making regular monthly payments without signing a reaffirmation agreement in places that allowed “retain and pay.” The debtor’s personal obligation on the note was discharged, and the automatic stay prevented repossession of the collateral. If the debtor defaulted after the bankruptcy, he would not be on the hook for any deficiency after repossession.

Now that BAPCPA has made clear the elimination of the option of “retain and pay,” creditors have the ability to repossess a vehicle even if the payments are current, simply by virtue of the debtor filing a bankruptcy and not reaffirming the debt.

But, do creditors actually take advantage of this option?

The short answer seems to be “no.”

According to the American Bankruptcy Institute’s Reaffirmation Agreements in Consumer Bankruptcy Cases by Daniel Austin and Donald Lassman, “the likelihood of a creditor repossessing the collateral of a debtor who is current simply because a bankruptcy has been filed is very remote” (see pg. 31).

Creditors are almost always better off continuing to accept payments from a bankrupt debtor who refuses to reaffirm, as opposed to repossessing the collateral. Repossessed vehicles only net a small percentage of the loan balance after considering attorney fees, repo fees, storage fees, auction fees, and low market value of a vehicle at auction. So, creditors have very little incentive to expend the time and money necessary to compel reaffirmation. And even if the lender is successful in getting the debtor to reaffirm, there is no guarantee they will be able to collect from a judgment-proof debtor who later stops paying.

Nationwide, only 23% of cases ever have reaffirmation agreements filed in them. In Texas, the percentage is higher. At 37%, Texas ranks in the top four states, along with Mississippi, Alabama, and Maine (see Austin and Lassman pg. 61 & 62). It is hard to believe that so many Texas debtors make a fully informed decision to reaffirm. Reaffirmation agreements disproportionately benefit the creditor. The only up-sides to the debtor are (a) an ability to have timely payments reported on the debtor’s credit report, (b) maintaining a positive relationship with the creditor, and (c) eliminating the very small chance of repossession. Thus, the benefit of discharging your personal obligation to pay an entire auto loan usually greatly outweighs the limited benefits of reaffirmation.

From attorney to attorney, there seems to be a large disparity in percentage of reaffirmation agreements filed for clients. Some bankruptcy attorneys file many more reaffirmation agreements on their clients’ behalf than other attorneys. This is further evidence that something is amiss. Clearly, a large number of debtors are reaffirming debts that they do not really have to reaffirm. If you do not reaffirm, and the lender fails to repo while your bankruptcy case is still open, it is arguably too late for them to repossess on the basis of your bankruptcy. In other words, you can argue that they have waived the default you committed by filing bankruptcy, and thus can not lawfully repo the vehicle unless you create a new default by missing a payment or failing to maintain insurance, etc.

Granted, a small calculated risk must be accepted by the debtor when he chooses not to reaffirm. However small the chance may be, there is a possibility that the debtor’s vehicle will be repossessed even if he is current on the payments. Debtors should be cautious in choosing an attorney who will look out for their best interest when dealing with reaffirmation. Debtors should be wary of anyone who is too eager to have them reaffirm.

Making a sound financial decision should take priority over a personal attachment to a car, or a debtor’s strong desire to have their payments reported to the credit bureaus. In practice, the “ride-through” option has not been completely eliminated, and should be fully explained by the debtor’s attorney before a reaffirmation agreement is hastily signed.

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