Lease Assumptions Disguised as Reaffirmation Agreements During a Bankruptcy in Bergen County New Jersey

There is a distinction in the bankruptcy code between a Lease Assumption and a Reaffirmation Agreement.  While a Lease Assumption letter is typically required to assume a lease on personal property including automobiles, some creditors may require that you execute a Reaffirmation Agreement in order to continue your lease.   Your attorney should advise you that the firm does not recommend signing a reaffirmation agreement on a lease as there is no such creature in the Bankruptcy Code.  Below is the language in the disclosure I provide to all my clients when they are financing or leasing a vehicle.

 

“REAFFIRMATION DISCLOSURE

I understand that by executing this reaffirmation agreement (hereinafter the “agreement”), I am agreeing to be held liable under the terms of the original financing terms of the contract and/or lease agreement, including but not limited to the obligation to make payment of unpaid principal, interest, fees and other costs associated with the reaffirmed/assumed debt for automobiles.

I understand that by executing this agreement, I may be required to appear before the court to testify as to my ability and desire to continue making payments on the reaffirmed debt. I understand that this agreement may not be approved by the court. I understand that I am not required by law enter into this agreement. I understand that I may rescind (cancel) the agreement at any time before the bankruptcy court enters my discharge.

I understand that if I enter into this agreement and I default on the reaffirmed debt after the bankruptcy case is completed, the creditor may be able to repossess the property and sue me for any deficiency. I understand that if I do not enter into this agreement, my property may be repossessed and my debt may be discharged in bankruptcy.

I understand that some creditors will allow me to retain possession of my property even if I do not enter into the agreement as long as I continue to make payments. I understand that if I do not enter into the agreement and I maintain the collateral and continue to make payments, the lender may not report post-bankruptcy payments to the credit reporting agencies. I understand that if I do not enter into this agreement, I may not receive account statements and I may not be able to make automatic payments on the account.

Lease Assumptions Disguised as Reaffirmation Agreements – I understand that there is a distinction in the bankruptcy code between a Lease Assumption and a Reaffirmation Agreement. I understand that while a Lease Assumption letter is typically required to assume a lease on personal property including automobiles, some creditors may require me to execute a Reaffirmation Agreement in order to continue my lease. My attorney has advised me that the firm does not recommend signing a reaffirmation agreement on a lease.

I am entering into this agreement voluntarily. I am fully informed of my rights and responsibilities in this matter and I have been advised of the legal effect and consequences of defaulting under this agreement.

I have received a copy of this disclosure.”

Attorneys have different opinions on whether you should sign a reaffirmation for a leased vehicles.  Discuss it in depth with your attorney so you are informed.  Even after assuming a lease or reaffirming a car banks and financing companies do not report payment timely or not to the credit bureaus.  So if you are hoping to give your credit score a boost for making timely payments, think again.

Can I keep my car if I am financing it at the time I file for Bankruptcy in New Jersey?

A reaffirmation agreement allows a person who files for bankruptcy to keep certain secured debt by removing it from the bankruptcy making it a debt that would not be discharged in the event of default on the loan.  This article specifically addresses the reaffirmations process as it relates to the financing of a car.

By executing a reaffirmation agreement, you will be agreeing to be held liable under the terms of the original contract, including but not limited to the obligation to make payment of unpaid principal, interest, fees and other costs associated with the reaffirmed/assumed debt.****

reaffirmation-agreementIn certain circumstances, you may be required to appear before the court to testify as to your ability and desire to continue making payments on the reaffirmed debt.  The agreement may not be approved by the court.   You are not required by law enter into this agreement and can rescind (cancel) the agreement at any time before the bankruptcy court enters your bankruptcy discharge.

If you enter into this agreement and you default on the reaffirmed debt after the bankruptcy case is completed, the creditor can repossess the car and sue you for any deficiency.   If you do not enter into this agreement, your property may be repossessed and that debt would be discharged in bankruptcy.

Some creditors will allow you to retain possession of your property even if you do not enter into the agreement as long as you continue to make payments (this is referred to as a “pay and drive” option).  When the Bankruptcy Law changed it removed the “pay and drive” option from the law and in its place required car owners who file bankruptcy to enter into a reaffirmation agreement.  Even companies that have allowed car owners to pay and drive after filing bankruptcy there is no guarantee its policy will not be changed after the case is closed.  If you do not enter into the agreement and and you maintain the collateral and continue to make payments, the lender may not report post-bankruptcy payments to the credit reporting agencies.  If you do not enter into this agreement, you may not receive account statements and may not be able to make automatic payments on the account.

 

Who should I bank with if I have debt or I am thinking about filing bankruptcy in New Jersey?

In the process of preparing your bankruptcy petition, you will be asked to provide information concerning banks and other lending institutions that you transact with.  In our experience, we have come to learn that certain institutions will freeze or levy client bank accounts upon receiving notice of a bankruptcy filing.  While we believe this conduct is illegal and in violation of the U.S. Bankruptcy Code, the institutions continue this conduct despite warnings and the imposition of sanctions from the Court for doing so.  As such, we provide the following guidelines to our clients:

  1. Never bank with an institution that you owe money to.
  2. If you are currently banking with a creditor that you owe money to (i.e. – you have a savings account and a credit card with the same institution and the credit card has a balance), you must immediately close the bank account.
  3. Never open a bank account with a bank that you may get a credit card from in the future (no matter how good the terms).
  4. Never, ever, bank with “Wells Fargo Bank”. This includes opening bank account, obtaining credit cards or taking loans.  This lender has been reprimanded and sanctioned several times for conduct found to be harmful to consumers.  Furthermore, Wells Fargo will freeze your account upon filing even if you do not owe them any money.
  5. Never give any creditor permission to debit your account automatically.  Instead, you can use bill pay through your bank and manually click a button to process payment.

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