Carolyn Denise Bowden

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
FAYETTEVILLE DIVISION
IN RE:
CAROLYN DENISE BOWDEN
DEBTOR
CASE NO.
11-06168-8-SWH
ORDER REGARDING REAFFIRMATION AGREEMENT
Pending before the court is the motion of the debtor to declare a reaffirmation agreement
between the debtor and creditor unenforceable and to permit the debtor to retain the collateral
pursuant to a “Hardiman ride-through.” 	A hearing on a previously filed motion to approve
reaffirmation agreement took place in Fayetteville, North Carolina, on December 1, 2011, at which
time debtor’s counsel asserted certain positions that were later set forth in the motion presently
before the court. For the reasons that follow, the court finds that the reaffirmation agreement is
unenforceable, but declines to enter an order regarding the ride-through.
Carolyn Denise Bowden filed a petition for relief under chapter 7 of the Bankruptcy Code
on August 11, 2011. At the same time, the debtor filed her Chapter 7 Individual Debtor’s Statement
of Intention, indicating her intent to reaffirm a debt to Ally Financial (“Ally”), which is secured by
a 2006 Chevrolet Trailblazer. Ally has not filed a proof of claim in the debtor’s case. The debtor
SO ORDERED.
SIGNED this 22 day of February, 2012.
________________________________________
Stephani W. Humrickhouse
United States Bankruptcy Judge
____________________________________________________________
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 1 of 8

entered into a proposed reaffirmation agreement with Ally, and the agreement was filed with the
court on September 30, 2011. A Motion for Approval of Reaffirmation Agreement signed by the
debtor was filed with the reaffirmation agreement.
The body of the reaffirmation agreement indicates that a presumption of undue hardship
arises because the debtor’s monthly income, minus her monthly expenses, results in a negative net
monthly income of ($386.74). 	The repayment terms provide for reaffirmation of a debt in the
amount of $4,534.31, to be repaid in thirteen monthly installments of $379.94. 	By way of
explanation, and in an effort to rebut the presumption, debtor indicated in Section II.C.2 that she
believes the agreement will not impose an undue hardship on her and that she can afford to make
payment on the debt, despite the fact that her monthly expenses exceed her monthly income, because
she “will have to adjust expenses to make car payments.” The debtor did not, however, check any
of the boxes on the first page of the reaffirmation documents that would indicate whether or not a
presumption of undue hardship arose. The Reaffirmation Agreement Cover Sheet does indicate that
the debtor had been represented by counsel in the negotiation of the reaffirmation agreement.
Part IV of the agreement sets forth standard language conforming to 11 U.S.C. § 524(c)(3).
Captioned “CERTIFICATION BY DEBTOR’S ATTORNEY (IF ANY),” it stipulates that the
certification is to be filed only if the attorney represented the debtor during the course of negotiating
this agreement, and provides as follows:
I hereby certify that: (1) this agreement represents a fully informed and voluntary
agreement by the debtor; (2) this agreement does not impose an undue hardship on
the debtor or any dependent of the debtor; and (3) I have fully advised the debtor of
the legal effect and consequences of this agreement and any default under this
agreement.
___ A presumption of undue hardship has been established with respect to
this agreement. 	In my opinion, however, the debtor is able to make the
required payment.
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 2 of 8

Check box, if the presumption of undue hardship box is checked on page 1 and the
creditor is not a Credit Union.
Form B240A, Reaffirmation Documents, p. 4. Debtor’s attorney did not sign this certification, and
did not otherwise execute any affidavit or declaration in support of the reaffirmation agreement.1
The debtor did not request a hearing, but a hearing was nonetheless scheduled for
October 18, 2011, in accordance with the court’s policy to schedule for hearing all reaffirmation
agreements without attorney signatures. That hearing was continued until December 1, 2011. At
the hearing, debtor’s counsel stated that the debtor was unable to be present, and as is customary in
the case of a motion for approval of a reaffirmation agreement, Ally did not appear at the hearing
or file any response to the motion. 	In light of the positions asserted at the hearing by debtor’s
counsel, and at the invitation of the court, the debtor filed a post-hearing motion to declare the
reaffirmation agreement unenforceable and to grant a ride-through, which was duly served upon
Ally, accompanied by a notice providing for a 14-day response period. No response was filed by
Ally.
DISCUSSION
The debtor specifically requests in her motion that the court enter an order with the
following findings:
A. 	That 11 U.S.C. § 521(a)(6) is inapplicable in this case as to Ally because Ally has neither
an allowed claim, nor a claim for the purchase price of the property securing its claim;
B. 	That the debtor fully and timely complied with the requirements of 11 U.S.C. § 521(a)(2)
regarding Ally and its collateral;
1 During the hearing, debtor’s counsel informed the court that in his professional opinion,
the debtor’s entry into the reaffirmation agreement was not wholly voluntary and would impose a
hardship upon her. For those reasons, counsel stated, he could not sign the certification, which
conforms to the statutory language by stipulating that the agreement is both voluntary and does not
impose a hardship.
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 3 of 8

C. 	That as a result of the debtor’s compliance with § 521(a)(2), sections 362(h) and 521(d) are
both inapplicable in this case;
D. 	That the proposed reaffirmation agreement between the debtor and Ally is unenforceable due
to the refusal of the attorney who represented the debtor during the course of negotiation of
the reaffirmation agreement with Ally to file a declaration or an affidavit of the type
described in 11 U.S.C. § 524(c);
E. 	That since the debtor was represented by an attorney during the course of negotiating the
reaffirmation agreement with Ally, § 524(c)(6) is inapplicable in this case; and
F. 	That since the reaffirmation agreement between the debtor and Ally is unenforceable due to
no fault of the debtor, the debtor is entitled to a “ride-through” of the type described in In
re Hardiman, 398 B.R. 161 (Bankr. E.D.N.C. 2008).
Mem. in Support of Debtor’s Motion at 9-10 (with minor modifications by the court).
At the outset, the court observes that most of the debtor’s requests are for findings or
conclusions of law to which she is undoubtedly entitled. The court is in full agreement with the first
three proposed conclusions, as well as the fifth, all of which are in accord with law that is well
settled in this district. (A): Ally has not filed a proof of claim and thus does not have an allowed
claim, and likewise cannot assert a claim for the “purchase price” of the vehicle. Section 521(a)(6)
is inapplicable. 	See In re Donald, 343 B.R. 524, 535-36 (Bankr. E.D.N.C. 2006) (noting that
“[t]ypically, for a claim to be an allowed claim, a proof of claim must be filed”); In re Hardiman,
398 B.R. 161, 180-81 (E.D.N.C. 2008) (noting that “purchase price” in the section means the “full
purchase price”). Therefore, there is no prohibition against the debtor retaining possession of her
vehicle under § 521(a)(6). 	(B): 	The debtor has timely complied with § 521(a)(2). 	She filed a
statement of intention indicating that she would retain the vehicle on the same day that she filed her
petition, and also entered into a reaffirmation agreement which was filed with the court ten days
after the first date set for her meeting of creditors. See §§ 521(a)(2)(A) and (B). It is clear in this
jurisdiction that the signing and filing of a motion to approve a reaffirmation agreement satisfies
§ 521(a)(2)(B). Hardiman, 398 B.R. at 187 (approving bankruptcy court’s determination that “[b]y
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 4 of 8

signing the reaffirmation agreement, the debtors ‘entered into’ an agreement to reaffirm the debt to
[creditor] Coastal. This constitutes ‘performing their intention’ to reaffirm, as required by
§ 521(a)(2)(B), as well as ‘entering into an agreement of the kind specified in § 524(c),’ as required
by § 362(h)(1).”). (C): Accordingly, the provisions of §§ 362(h) and 521(d), both of which are
triggered by a debtor’s failure to take the actions identical to those required under § 521(a)(2), are
not applicable here - the stay is not terminated and a creditor is prohibited from enforcing an ipso
facto clause which may be contained in the underlying agreement. 	See id.; §§ 362(h), 521(d).
(E): Finally, the debtor is represented by an attorney, and § 524(c)(6)(A) only applies “in a case
concerning an individual who was not represented by an attorney during the course of negotiating
an agreement under this subsection.” See § 524(c)(6)(A). 2
Additionally, the debtor asserts in part (D) of the request for relief that the proposed
agreement is unenforceable “due to the refusal of the attorney who represented the debtor during the
2 The court strongly believes that a policy requiring attorneys to represent their clients in
the negotiation of reaffirmation agreements is long overdue in this district and will commend this
issue to the Local Rules Committee for action in that regard. An attorney has an affirmative duty
to at least “fully advise the debtor of the legal effect and consequences of [the] agreement and any
default under [the] agreement.” 	However, a policy requiring debtors’ counsel to represent their
clients in the negotiation of reaffirmation agreements, and to indicate that representation on the
Reaffirmation Agreement Cover Sheet, should not preclude an attorney from signing the
certification with modifications or strikeouts as the attorney finds appropriate.
A representation requirement of this nature would prevent the unfortunate practice that has
developed in this district, which is for attorneys to routinely take the position that they did not
represent the client in the course of negotiating the agreement, yet to then show up at the hearing
for approval of the reaffirmation agreement asking for disapproval of the agreement and a ride-
through. The court is sympathetic to the plight of counsel who feel constrained by the requirements
of § 524(c), which clearly (albeit incredibly) did not contemplate representation of a client where
the attorney does not believe that the undue hardship can be rebutted. Allowing counsel to modify
the § 524(c) certification to more accurately set forth their position ensures that debtors are given
adequate information and limits court involvement to two defined situations: 1) the case of a true
pro se debtor, under § 524(c)(6)(A); and 2) review of counsel’s determination that the undue
hardship has been rebutted in the case of represented debtors, pursuant to § 524(m).
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 5 of 8

course of negotiation of the reaffirmation agreement with Ally to file a declaration or an affidavit
of the type described in 11 U.S.C. § 524(c).” 	The court agrees with the debtor that
“[s]ection 524(c)(3) applies in every instance where a debtor has been represented by an attorney
during the course of negotiating a proposed reaffirmation agreement, and in each such case the filing
of the § 524(c)(3) declaration by the attorney remains a stand-alone pre-requisite to enforceability.”
Debtor’s Mem. of Law at 7. 	Attorneys contend with this certification in various ways. 	The
certification may be left entirely blank, as it was in this case. This can be construed as an assertion
by the attorney that no part of the form can be certified. Or, it may be an assertion by the attorney
that some part of the form cannot be certified but, because the attorney cannot certify the section in
its entirety, the attorney elected to leave it blank. A simple oversight in forgetting to certify would,
of course, look exactly the same.
Other times, an attorney strikes through certain parts of the certification, but still executes
it. 	In re Perez, 2010 WL 2737187 *2 (Bankr. D.N.M. 2010) (counsel represented debtor in
negotiations and signed Part C, but struck through the “does not impose an undue hardship on the
debtor or a dependent of the debtor” portion of certification; the agreement therefore did not have
all the certifications required to satisfy § 524(c)(3), and was unenforceable such that no hearing was
necessary). Or, an attorney may indicate on the certification that they cannot in good conscience
support a client’s (as in, any client’s) reaffirmation of a debt pursuant to such an agreement. In re
Isom, 2007 WL 2110318 (Bankr. E.D. Va. 2007) (counsel represented debtor during negotiations
but did not execute certification, instead indicating to the court that it “was not her practice to make
any such certification [because] . . . such determination was best left up to the Court”; agreement
lacked necessary certifications and was therefore held to be unenforceable).
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 6 of 8

These permutations all lead to one conclusion. If the attorney certification is not complete,
there is no enforceable reaffirmation agreement, because the plain language of the statute requires
strict compliance. See, e.g., Isom, 2007 WL 2110318 at *3 (lack of attorney certification “in and
of itself” renders agreement unenforceable); Perez, 2010 WL 2737187 *4 (discussing the
requirements for enforceability of a reaffirmation agreement entered into by a represented debtor,
and concluding that the certification of counsel is a statutory requirement to enforceability); In re
Minardi, 399 B.R. 841, 846 (Bankr. N.D. Okla. 2009) (reaffirmation is “void and unenforceable”
if attorney does not certify because agreement must fully comply with specific statutory
requirements). 	Failure to sign at all, or affixing a signature with portions of the certification
stricken, will be considered by this court as a failure to make the certification required by §
524(c)(3), thus rendering the reaffirmation agreement unenforceable.
What remains unsettled is the debtor’s counsel’s final two-fold assertion that 1) no statutory
authority exists for the court even to hold a hearing if a debtor is represented by counsel during the
negotiation of a reaffirmation agreement where counsel does not execute the certification; and,
further, that 2) in that instance, the debtor is automatically entitled to a Hardiman ride-through. To
date in this district, when reaffirmation agreements concerning personal property are filed by a
debtor who was represented in the course of negotiating the agreement, but do not contain the
certification of that attorney, the court treated the matter essentially as if the debtor was pro se, and
set it for hearing. That is what occurred in this case. The court declines to tackle the issue of its
authority to hold a hearing under these circumstances, but holds that in the future, when such a fact
situation presents itself, a hearing will not be set. 	The agreement is unenforceable on its face,
judicial action is not warranted, and a hearing would therefore serve no legitimate purpose.
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 7 of 8

Debtor’s request that this court “deem” that under the circumstances his client is entitled to
an automatic Hardiman ride-through is, in essence, a request for a comfort order and the court
declines to accommodate it. 	Section 524 contemplates that the court will not intervene in the
reaffirmation arena where the debtor is represented by counsel except in the limited instance of
reviewing counsel’s determination regarding whether the presumption of undue hardship has been
rebutted. There is no good reason to extend that involvement. If and when a creditor takes action
against a debtor or his property that is inconsistent with §§ 521 and 362, the court can then intercede
to enforce the stay or discharge injunction. 3
For the foregoing reasons, the reaffirmation agreement is not enforceable. No further orders
will be entered with regard to the reaffirmation agreement at this time.
SO ORDERED.
END OF DOCUMENT
3This court, like the court in Perez, 2010 WL 2737187, presently expresses no view as to
the effect of the discharge injunction in the context of the applicability of ipso facto clauses.
Case 11-06168-8-SWH Doc 27 Filed 02/22/12 Entered 02/22/12 17:03:16 Page 8 of 8