Bankruptcy

ND GA - Court May Consider Reaffirmation Agreement Where Debtor's Attorney Refuses To Provide Certification

By Scott Riddle

In In re Goodman, Ch. 7 Case No. 08-41521, 2009 WL 936910 (Bankr.N.D.Ga. Apr 06, 2009), the debtor proposed a reaffirmation agreement with her auto lender.   However, although her attorney represented her in the negotiations of the agreement, and continued to represent her in the other matters in the case, the attorney refused to sign the certification  11 U.S.C. §524(c)(3).

It is clear from the hearing that the debtor's lawyer represented the Debtor in connection with negotiation of the reaffirmation agreement but declined to provide the required certification for reasons that, properly, she did not disclose, given her duty of maintaining the confidences of her client and the protections of the attorney-client privilege. In this regard, the Court is satisfied that the Debtor's lawyer properly fulfilled her professional responsibilities to represent the Debtor in all aspects of this case, including counseling with regard to the proposed reaffirmation agreement. Thus, this is not a case in which a debtor's lawyer attempts to exclude reaffirmation matters from the scope of the bankruptcy representation.

The question here is whether the Court may even consider approving the proposed reaffirmation agreement in view of the fact that her lawyer represented her at least with regard to advising her about it, continues to represent her in the case, but refused to provide the required certification. The answer must be affirmative because the lawyer's certification necessarily cannot be the only way for a debtor with a lawyer to enter into an enforceable reaffirmation agreement.

In the final analysis, it is the client, not the lawyer, who makes the decision about reaffirmation. So a debtor must have the opportunity to seek to enter into an enforceable reaffirmation agreement notwithstanding her lawyer's decision not to sign the certification based on the lawyer's professional judgment that it is not in her best interest or for other valid reasons. And the debtor's lawyer, who ordinarily has a duty to represent a consumer debtor in all aspects of a bankruptcy case, need not seek to withdraw from representation in the case (in which her services may still be required with regard to other matters) so that the debtor can become unrepresented so that she can pursue an enforceable reaffirmation agreement. Indeed, the lawyer's professional responsibilities actually require the lawyer to represent the debtor in connection with reaffirmation matters.
 

The Court, therefore, considered the proposed reaffirmation under 11 U.S.C. §524(a)(6).  Since the debtor's budget clearly indicated that she could not make the payments on her own, and the vehicle was worth less than the balance owed, the propowed agreement was not approved.  However, because the debtor wanted to protect her mother, who co-signed, the Court noted she could continue to make voluntary payments to the lender to pay off the debt.

Full post as published by Georgia Bankruptcy Blog on April 10, 2009 (boomark / email).