Answer:
The payments made by the borrower do not confirm or ratify a reaffirmation agreement which does not comply with the requirements of the Bankruptcy Code. The Code requires any reaffirmation agreement to be made before granting the discharge, to contain certain language advising the debtor of its right to rescind and to be filed with the court. Section 524 (c) In the event the requirements are not met, the agreement is not enforceable.
The Code, however, also provides in Section 524(f) that "nothing prevents a debtor from voluntarily repaying any debt." So the borrower/debtor can continue to make payments, but if the payments stop the creditor has no right of enforcement.
The creditor may have a malpractice claim against its attorney who failed to obtain the borrower's signature on the reaffirmation agreement and file it with the court prior to the discharge.
First published on BankersOnline.com 11/3/03
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