Katherine A Maynard and James L Maynard

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UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
Inre:
Case no. 7-11-10539 TL
KATHERINE A. MAYNARD and
JAMES MAYNARD,
Debtors.

MEMORANDUM OPINION ON MOTION TO REOPEN CASE

This matter came before the Court for hearing on February 19, 2013 to consider Debtors’
Motion to Reopen Case, filed February 1, 2013, doc. 15 (the “Motion”). Debtors seek to reopen
their case so they can challenge the enforceability of a certain reaffirmation agreement they
signed with Ford Motor Credit Company, LLC (“Ford”). This is a core proceeding.

At the preliminary hearing, the parties asked the Court to rule on the Motion without
further briefing or an evidentiary hearing. This request was made because the amount in
controversy is small (several thousand dollars). The Court agreed to do so, even though the
record is skimpy.’ For the reasons set forth below, the Court denies the Motion.

1. BACKGROUND

Debtors filed this no-asset chapter 7 case on February 10, 2011. In their Statement of
Intention filed February 10, 2011, Debtors stated they intended to reaffirm their debt to Ford

secured by their 2006 F-150 pickup truck.

1

The record consists of the Court docket, including the Motion and the reaffirmation agreement at issue, and
the representations of counsel made at the preliminary hearing, together with any responses thereto. Forthe
purpose of ruling on the Motion as requested by the parties, the Court will assume all counsel representations
are true unless they were disputed by opposing counsel at the hearing.

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INFORMATION

On March 23, 2011, Debtor’s signed a reaffirmation agreement (“Agreement”) with
Ford. Ford filed the Agreement 2 with the Court on April 12, 2011.3
On April 13, 2011 Ford’s attorney sent an e-mail to Debtors’ attorney, stating that the
Agreement was incomplete because a page was missing.4 Debtors never amended the
Agreement or provided the missing page to Ford.
A discharge order was entered June 1, 2011, and the case was closed.
On July 8, 2011 Debtors filed a Notice of Decision to Rescind, purporting to rescind the
Agreement. The Notice contains no certificate of service. Both Debtors signed the Notice.
On July 11, 2011 the Clerk filed a Notice of Error on the docket, informing Debtors’
counsel that the case was closed and that, if necessary, Debtors may file a motion to reopen the
case.
At some point post-closing, Ford repossessed Debtors’ truck, sold it, and obtained a
deficiency judgment against the Debtors in state court.
Debtors seek to reopen their case so they can ask the Court to declare the Agreement
void. 	The crux of Debtor’s argument is that the Agreement is missing page 5, and therefore is
unenforceable.
Ford argues that the Agreement is enforceable despite the missing page. 	Ford alleges
that their counsel sent the entire Agreement (including the missing page) to the Debtors,5 that
Debtors’ attorney is experienced and advised the Debtors before they signed the Agreement, and
2 The Agreement was filed by Ford. This is permitted. See In re Pitts, 462 B.R. 844, 849 (Bankr. M.D.
Fla. 2012). See also Fed.R.Bankr.P. 4008 (Advisory Committee Notes (2008)) (“Any party may file the
agreement with the court.”).
3 The filed document is 11 pages. The first two pages are the “Reaffirmation Agreement Cover Sheet,”
Official Form B27 (12/09). The remaining pages are the Agreement itself. Ford used the Official Form
240A (1/07). The missing page is page 5, a version of which is attached to this opinion as Exhibit A.
4 Debtors state that the e-mail is attached to the Motion, but apparently it was inadvertently omitted.
5 Debtors’ counsel did not contradict this representation.
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that Debtors’ attorney signed the Attorney Certification page. 	Furthermore, Ford argues that
Debtors raised the defense of the Agreement’s invalidity in the state court deficiency action, and
the state court judge overruled the defense. 	Ford urges that Debtors should not be given a
“second bite at the apple.”
II.THE ROOKER-FELDMAN DOCTRINE
The Rooker-Feldman doctrine provides that the lower federal courts lack subject
matter jurisdiction over a case if the exercise of jurisdiction over that case would
result in the reversal or modification of a state court judgment. Such jurisdiction
is lacking because within the federal system, only the Supreme Court may review
a state court judgment.
Hachamovitch v. DeBuono, 159 F.3d 687, 693 (2d Cir. 1998). See also Johnson v. Orr, 551 F.3d
564, 567 (7th Cir. 2008) (“The Rooker–Feldman doctrine states that federal courts, other than the
Supreme Court, do not have jurisdiction to review decisions of state courts in civil cases.”);
Paulson v. Wein (In re Paulson), 477 B.R. 740, 743 (8th Cir. BAP 2012) (“The doctrine
precludes a federal action if the relief in the federal action would effectively reverse the state
court decision or void its holding”) (citations and internal quotation marks omitted.); Kline v.
Deutsche Bank Nat’l Trust Co. (In re Kline), 472 B.R. 98, 105 (10th Cir. BAP 2012) (“If success
on the claims alleged in federal court would necessarily require the federal court to review and
reject the state court’s judgment, Rooker-Feldman applies.”) (citing PJ ex rel. Jensen v. Wagner,
603 F.3d 1192, 1194 (10 th Cir. 2010)).
The doctrine of Rooker–Feldman takes its name from two United States Supreme
Court cases, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed.
362 (1923), and D.C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303,
75 L.Ed.2d 206 (1983). These two cases prevent parties from bringing claims in
federal district courts when the plaintiff in federal court seeks to void the state
court judgment, Rooker, 263 U.S. at 416, 44 S.Ct. 149, or, when the claim is
“inextricably intertwined” with the state adjudication, Feldman, 460 U.S. at
486–487, 103 S.Ct. 1303.
-3-
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Washington v. Saxon Mortgage Services (In re Washington), 469 B.R. 587, 592 (Bankr. W.D.
Pa. 2012).
The Rooker-Feldman doctrine is derived from 28 U.S.C. § 1257(a),6 and it “provides that
only the Supreme Court has jurisdiction to hear appeals from final state court judgments.” Bear
v. Patton, 451 F.3d 639, 641 (10th Cir. 2006) (citation omitted.). 	As recently explained by the
Supreme Court, however, the doctrine “is confined to ... cases brought by state-court losers
complaining of injuries caused by state court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). 	The Bear court
emphasized that Exxon Mobil 	required that the federal action be filed “after the state
proceedings ended.” 	Bear, 451 F.3d at 641, citing Exxon Mobil, 544 U.S. at 291) (emphasis
added by Bear court.) The Bear court also clarified that if a lower state court issues a judgment
and the losing party allows the time for appeal to expire, then the state proceedings have ended
for Rooker-Feldman purposes, and a federal court may not then consider that judgment or any
claim inextricably intertwined with it. Id. at 642.
In Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10 th Cir. 2012), the Tenth Circuit
discussed the Supreme Court’s use of the term “inextricably intertwined.”
6 28 U.S.C. § 1257(a) provides:
Final judgments or decrees rendered by the highest court of a State in which a decision
could be had, may be reviewed by the Supreme Court by writ of certiorari where the
validity of a treaty or statute of the United States is drawn in question or where the
validity of a statute of any State is drawn in question on the ground of its being repugnant
to the Constitution, treaties, or laws of the United States, or where any title, right,
privilege, or immunity is specially set up or claimed under the Constitution or the treaties
or statutes of, or any commission held or authority exercised under, the United States.
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We think it best ...[to] not try[] to untangle the meaning of inextricably
intertwined. 	The essential point is that barred claims are those “complaining of
injuries caused by state-court judgments.” 	Exxon Mobil, 544 U.S. at 284. 	In
other words, an element of the claim must be that the state court wrongfully
entered its judgment.
See also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 25 (1987) (“[T]he federal claim is inextricably
intertwined with the state-court judgment if the federal claim succeeds only to the extent that the
state court wrongly decided the issues before it.) (Marshall, J., concurring).
The Court finds that the Rooker-Feldman doctrine prohibits the Court from granting
Debtors’ requested relief. Debtors litigated the issue of the Agreement’s validity in state court,
and lost. 7 The state court judgment must now be final. 	See Rule 12-210(A)(2) NMRA (party
has 30 days after entry of a judgment or order to appeal). Debtors’ Motion to Reopen was filed
on February 1, 2013. If the time to appeal had not expired when Debtors filed the Motion, it has
by now.
Debtors “commenced” their federal action by filing the Motion, which was after the state
court rendered its decision. 	They argue that the state court erred when it ruled the Agreement
was enforceable. 	Debtors are asking this Court to overrule the state court’s decision about the
enforceability of the Agreement. This meets all the requirements for application of the Rooker-
Feldman doctrine. This Court lacks therefore jurisdiction, and must deny the requested relief.
III.THE AGREEMENT IS ENFORCEABLE IN ANY EVENT
7
There is no question the state district court had jurisdiction to rule that the reaffirmation agreement was
valid. See Booth v. Nat’l City Bank (In re Booth), 242 B.R. 912, 915 (6 th Cir. BAP 2000) (“Under 28 U.S.C.
§ 1334(b), bankruptcy courts and state courts have concurrent jurisdiction to determine the validity of
reaffirmation agreements.) (citing Michigan Employment Sec. Comm’n v. Wolverine Radio, Inc. (In re
Wolverine Radio, Inc.), 930 F.2d 1132, 1141 n.14 (6 th Cir. 1991)). See also In re Grabinski, 150 B.R. 427,
431-32 (Bankr. N.D. Ill. 1993) (bankruptcy courts have exclusive jurisdiction to approve the execution of a
reaffirmation agreement but state courts have the jurisdiction to determine if a loan was reaffirmed during
the bankruptcy case.)
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As an alternative ruling, the Court finds that the Agreement is enforceable despite the
missing page.
For debtors represented by an attorney, the reaffirmation process is set forth in 11 U.S.C.
§ 524(c), which incorporates disclosure requirements found in § 524(k). Section 524(c) contains
seven requirements for a reaffirmation agreement to be enforceable.8 Each will be addressed.
1. 	11 U.S.C. § 524(c) and (c)(1). 	A reaffirmation agreement must be enforceable
under applicable nonbankruptcy law, and must have been made before Debtors’ discharge is
entered.
A. 	When the Agreement Was Made. A reaffirmation agreement is a contract
between a debtor and a creditor and the bankruptcy court looks to state law when deciding if a
contract was formed, and when. 	In re Merritt, 366 B.R. 637, 640 (Bankr. W.D. Tex. 2007).
Under New Mexico law, an offer and acceptance creates a binding contract when there is an
objective manifestation of mutual assent by the parties to the material terms of the contract.
Pope v. Gap, Inc., 1998-NMCA-103, ¶ 11, 125 N.M. 376, 379-80. 961 P.2d 1283, 1286-87
(Citing Trujillo v. Glen Falls, Ins. Co., 88 N.M. 279, 280-81, 540 P.2d 209, 210-11 (1975)).
And, the existence of mutual assent is based on objective evidence. Id. at ¶ 13, 125 N.M. at 380,
961 P.2d at 1287 (citations omitted.)
The objective evidence in this case is that Debtors listed an intention to reaffirm their
debt with Ford. Ford’s attorney prepared a complete reaffirmation agreement and presented it to
the Debtors, who consulted with their attorney and signed it on March 23, 2011. “The fact that
the debtor promptly signed an agreement to waive her discharge as to [Ford], using a form
furnished to her by [Ford], constitutes objective evidence of the assent on the part of both the
8 The unnumbered requirement is found in the first sentence of §524(c), i.e. that the agreement is
enforceable “only to any extent enforceable under applicable nonbankruptcy law.” 11 U.S.C. § 524(c).
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debtor and [Ford] that the reaffirmation agreement as written constituted the agreement of the
parties.” 	Merritt, 366 B.R. at 641. 	Debtors were discharged on June 1, 2011. 	Therefore, the
agreement was made before the granting of the discharge.
B. 	Enforceable 	Under 	Nonbankruptcy 	Law. 	Although 	one 	page 	of
disclosures is missing from the filed Agreement, the omission does not render the Agreement
unenforceable. 	The terms of the contract are determined by reference to what was objectively
agreed upon, not what was later filed in the court. 	See UJI 13-817, NMRA Civ. (“A
modification occurs when the parties intend to continue the contractual relationship but wish to
change one or more of the terms of the contract. In order for a modification to the contract to be
effective, there must be mutual assent of [both] _______ and _______ to the modification.”). A
clerical error that results in a missing page does not modify the terms of a contract. 	See also
Elliott & Frantz, Inc. v. Ingersoll-Rand Co., 457 F.3d 312, 322 (3rd Cir. 2006)(“[U]nilateral
statements or actions made after an agreement has been reached or added to a completed
agreement clearly do not serve to modify the original terms of a contract.”) (citation omitted.)
2. 	11 U.S.C. § 524(c)(2). The debtor must receive the disclosures described
in subsection (k) at or before the time the debtor signed the agreement. 	Here, the Court finds
that Debtors received the required disclosures. The missing page contains some of the disclosure
required by § 524(c)(2) and 524(k)(3)(J). Nevertheless, Debtors did not dispute Ford’s assertion
that the page was sent to them. Furthermore, the disclosure on the missing page are the kinds of
disclosure Debtor’s counsel would discuss with her clients before certifying that the Agreement
was a “fully informed agreement” and that she had “fully advised the debtors of the legal effect
and consequences of a reaffirmation agreement and default.” 	11 U.S.C. § 524(c)(3). 	See also
Gomez v. Wells Fargo Bank, N.A. (In re Gomez), 473 B.R. 322, 330 (Bankr. W.D. Ark. 2012)
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(the certification by counsel negates any argument that the debtor was not advised of the legal
effect of a reaffirmation agreement).
3. 	11 U.S.C. § 524(c)(3). The agreement must be filed with the court, and, if
the debtor was represented by an attorney during the negotiation of the agreement, must include
a 	declaration 	or 	affidavit9 of 	the 	attorney 	that 	contains 	the 	information 	specified 	in 	§
524(k)(5)(A). These requirements have been satisfied.
Furthermore, § 524(c)(3) does not set forth a deadline for filing the agreement. 	In
Merritt a creditor filed a reaffirmation agreement signed by the debtor eighteen months
previously, and some fourteen months after her discharge. Merritt, 366 B.R. at 638. The court
found that the creditor “rather obviously dropped the ball.” 	Id. n. 2. 	The court concluded,
however, that “The agreement here under consideration, then, is not rendered invalid by its
extraordinarily tardy filing.” 	Id. at 640. 	“Hopefully, the creditor appreciates that the clerk of
court did not require the creditor to first file a motion to re-open the case as a predicate to filing
this reaffirmation agreement. The clerk would have been well within his rights to do so.” Id. n.
5. So, presumably, Ford could cure any omission by seeking to reopen Debtors’ bankruptcy case
to file the missing page.
4. 	11 U.S.C. § 524(c)(4). A reaffirmation agreement is no longer effective if
the debtor rescinds at any time prior to discharge or within sixty days after the agreement is filed
with the court, which occurs later, by giving notice of rescission to the holder of the claim.
Debtors filed a Notice of Rescission on July 8, 2011, which was after discharge and more than
60 days from the filing date. It therefore was not timely and did not rescind the Agreement. It
also does not state that it was served on Ford.
9 Section 524(k)(5) requires a “declaration” that states “Certification by Debtor’s Attorney”, while
section 524(c)(3) requires a “declaration or affidavit.”
-8-
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5. 	11 U.S.C. § 524(c)(5). The provisions of § 523(d) must be complied with.
Section 523(d) applies only to debtors that were not represented by an attorney, and is not
applicable here. See Ford Motor Credit Co., LLC v. Morton (In re Morton), 410 B.R. 556, 561-
62 (6th Cir. BAP 2009) (analyzing only sections 524(c)(1) through (4) to determine if a
reaffirmation agreement was enforceable for a debtor represented by counsel.)
6. 	11 U.S.C. § 524(c)(6). 	Finally, § 523(c)(6) requires court approval in
some circumstances, e.g. when debtors are pro se. 	As Debtors were represented by counsel in
this case, the subsection does not apply.
From the above, the Court finds that the Agreement meets the statutory requirements and
is an enforceable obligation.
IV.CONCLUSION
The Motion will be denied for the alternative reasons set forth above. This Memorandum
Opinion shall constitute the Court's findings of fact and conclusions of law under Fed.R.Bankr.P.
7052. An appropriate order be entered.
__________________________________
Honorable David T. Thuma
United States Bankruptcy Judge
Date entered on docket: March 26, 2013
Copies to:
Oralia B Franco
2000 E Lohman Suite A-1
Las Cruces, NM 88001
Allan L Wainwright
800 Lomas Blvd NW
Albuquerque, NM 87102-3150
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EXHIBIT A TO MEMORANDUM OPINION
In re Maynard, Case 7-11-10539-TL (Bankr. D. N.M. 2011) 5

YOUR RIGHT TO RESCIND (CANCEL) YOUR REAFFIRMATION AGREEMENT

You may rescind (cancel) your reaffirmation agreement at any time before the bankruptcy
court enters a discharge order, or before the expiration of the 60-day period that begins on the date
your reaffirmation agreement is filed with the court, whichever occurs later, To rescind (cancel)
your reaffirmation agreement, you must notify the creditor that your reaffirmation agreement is
rescinded (or canceled) by sending notice to:

Ford Motor Credit Company LLC

c/o Law Offices of Allan L. Wainwright
800 Lomas NW

Albuquerque, NM 87102

Frequently Asked Questions:

What are your obligations if you reaffirm the debt? A reaffirmed debt remains your
personal legal obligation. It is not discharged in your bankruptcy case. That means that if you
default on your reaffirmed debt after your bankruptcy case is over, your creditor may be able to
take your property or your wages. Otherwise, your obligations will be determined by the -
reaffirmation agreement which may have changed the terms of the original agreement. For
example, if you are reaffirming an open end credit agreement, the creditor may be permitted by
that agreement or applicable law to change the terms of that agreement in the future under certain

conditions.

Are you required to enter into a reaffirmation agreement by any law? No, you are not
required to reaffirm a debt by any law. Only agree to reaffirm a debt if it is in your best interest.
Be sure you can afford the payments you agree to make.

What if your creditor has a security interest or lien? Your bankruptcy discharge does not
eliminate any lien on your property. A ‘‘lien’’ is often referred to as a security interest, deed of
trust, mortgage or security deed. Even if you do not reaffirm and your personal liability on the
debt is discharged, because of the lien your creditor may still have the right to take the security
property if you do not pay the debt or default on it. If the lien is on an item of personal property
that is exempt under your State’s law or that the trustee has abandoned, you may be able to
redeem the item rather than reaffirm the debt. To redeem, you make a single payment to the
creditor equal to the current value of the security property, as agreed by the parties or determined
by the court.

NOTE: When this disclosure refers to what a creditor ‘“‘may’’ do, it does not use
the word “may”’ to give the creditor specific permission. The word ‘ ‘may’ is used
to tell you what might occur if the law permits the creditor to take the action. If |
you have questions about your reaffirming a debt or what the law requires, consult
with the attorney who helped you negotiate this agreement reaffirming a debt. If
you don’t have an attorney helping you, the judge will explain the effect of your
reaffirming a debt when the hearing on the reaffirmation agreement is held.

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