Bankruptcy Law Questions? Ask a Bankruptcy Lawyer Now.
Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.
Generally, courts will NOT enforce provisions in a contract/agreement that waives one's right to file bankruptcy or to include a debt in a bankruptcy. Here's a good link that discusses this topic: http://www.abiworld.org/AM/Template.cfm?Section=Working_Group_Proposals&Template=/CM/ContentDisplay.cfm&ContentID=36462
Here's another one: http://www.callahanlaw.biz/523Article.pdf
However, there is NOT a lot of case law out there on this point, and there are some cases and judges out there that suggest IF a party agrees or promises to pay a debt, then it is NOT dischargeable.
Thus, the best thing to do is either NOT sign the agreement, or either add a few words to the sentence you quoted to specifically except bankruptcy out of the provision. In other words, you could say nothing in this agreement prohibits you from filing bankruptcy and this agreement doesn't make the debt non-dischargeable if bankruptcy were filed (or something like that).
You don't want to put yourself in a position to have to litigate this issue with a creditor who has deep pockets! Even if you're legally right, you may not have the money to withstand the fight over this issue.
Thus, the best options are to either not sign the agreement at all or add language to make sure that you're not giving up your right to file bankruptcy and receive a discharge for the debt.
Understood - Thanks. But if I don't sign, theoretically, I am still obligated to go to the deposition tomorrow. And I've read that if one misses a deposition, the cost of the court recorder and misc. other costs can be levied against me (well over $1,000) - and maybe be held in Contempt of Court. So, kinda stuck if I sign,... kinda stuck if I don't sign. Ideas?
If I don't sign AND I don't go to the deposition,... AND Citibank's attnys hit me with above mentioned costs,... can those costs be wiped out by the BK?
The paralegal at Citibank's attny's office said they have already put an "x" by my name on tomorrow's list of people being deposed (meaning I won't/don't need to show up) because I said I would sign this agreement and send it back in the mail (and obviously them not receiving it till after tomorrow's scheduled deposition). So, If I understood her correctly I'm already excused from showing up tomorrow (but only if I DO sign and return this payment plan). So, how bout this:
What if I handwrite the "Doesn't prevent me from doing a BK" language you suggested on the agreement and send THAT back to them? Would I be covered from not showing up at the deposition even knowing they'll fuss about me putting in my own language once they get it?
I'm quite sure I'll file BK very soon. My worry is that if I go to the deposition, tell them I have a van with a bit of equity (maybe 4-5k), furniture, a bit of income (audio tech subcontractor),... that they may be able to get any/some of the above before the BK is far enough along to protect it/me.
IF you were my client, the ONLY way I would advise you not to show is IF you have something in writing from the creditor saying you don't have to appear. So, maybe call the paralegal and ask her to email you a letter or just a reply stating that the deposition has been called off for tomorrow in lieu of you trying to reach a settlement. If you can do that, then I would think you're ok not to show.
Thus, if you add the language and send it in, and they don't like it or if they want to negotiate terms, then you're still fine because the deposition was called off so you could TRY to reach a settlement. If the paralegal says it's called off because you agreed to sign our release, then that's not really accurate because you're not agreeing to sign the release AS WRITTEN. You should be clear that this isn't a done deal, and instead that you're WORKING ON A SETTLEMENT AGREEMENT. As long as you get something like that in writing, you should be ok.
As for the creditor's ability to liquidate your property, it would be VERY difficult for the creditor to do this before you could file. A bankruptcy petition can be filed within a few hours, so if you knew they were coming after you (they would have to sue you and then take a judgment before being able to attach anything - - which would give you plenty of time to file), you could file and stop them.
Also, Florida has many exemptions that could protect much of your property from seizure: http://www.floridabar.org/tfb/TFBConsum.nsf/0a92a6dc28e76ae58525700a005d0d53/f1bc20015cfdb2e985257408005290ed!OpenDocument
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