Legal Question in Bankruptcy in California

can a debtor re-affirm a debt after bankruptcy? We had a judgement on the debtor. he filed bankruptcy chapter 7. He went out to by a home after bankruptcy and the escrow company found our judgement. The debtor them came to our office and signed a new note assuming the old debt. The debtor did this so we would release the judgement to the escrow company allowing the debtor to purchace the home. The debtor made us two payments then went default. We have filed and served the debtor in a small claims action on 12/17/2012. Is this debt collectable since the debtor re-affirmed the debt after bankruptcy?

Asked on 12/04/12, 11:25 am

1 Answer from Attorneys

Mark Saltzman, MBA, JD Law Offices of Mark E. Saltzman

A debtor can reaffirm a debt, while in bankruptcy. There are different rules for reaffirmations, if the debtor is representing him or herself or is represented by counsel.

You need to check whether the debt to you was discharged.

If you had a secured debt, such as an Abstract of Judgment that was recorded on real property with adequate collateral, a Chapter 7 bankruptcy does not automatically discharge the debt, along with the unsecured debts, such as credit card debt.

If your debt was fully secured, the new note was not really necessary. Your debt was alive and well, if there was not an order that it was discharged in the bankruptcy proceeding.

In small claims court, you may want to show the judge a copy of the bankruptcy documents that show that your debt was fully secured and that there was no order to discharge your debt. You can also bring in the recorded Abstract to show that it was recorded. You can obtain the bankruptcy documents at any bankruptcy court. There are computers on which you can look up the case and have documents printed out. If you need a copy of your Abstract, you can get it at the office of the County Recorder, where it was recorded.

Once you have established that the debt was not discharged, you can simply prove up the case by showing the note and evidence of the payments that were made and not made.

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Answered on 12/04/12, 12:14 pm

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