5 B.R. 32

In the Matter of Linda Lucille VINSON, Debtor. Linda Lucille VINSON, Plaintiff, v. FARMER’S HOME ADMINISTRATION, Defendant.

Bankruptcy Nos. 79-00131G, 79-0009G.

United States Bankruptcy Court, N. D. Georgia.

April 22, 1980.

Winslow H. Verdery, Cornelia, Ga., for debtor.

FINDINGS OF FACT

WILLIAM L. NORTON, Jr., Bankruptcy Judge.

Plaintiff initiated this adversary proceeding to attempt to get the court to require the Farmer’s Home Administration (FHA) to agree to the reaffirmation of the mortgage debt owed by the debtor to the FHA. Attached to the complaint is a proposed *33loan agreement signed by debtor; but not signed by the creditor; apparently the creditor opposes the reassumption; creditor filed no response to this complaint.

CONCLUSIONS OF LAW

Bankruptcy Code Section 524(c) which sets forth the procedures to be followed if a dischargeable debt is to be revived as a new loan agreement and rendered enforceable after the debtor’s discharge refers to an “agreement between a holder of a claim and the debtor, . . [emphasis supplied] While the term “agreement” is nowhere defined by the Bankruptcy Code, the voluntary nature of the negotiation and reaffirmation of a discharged debt on the part of the debtor and the creditor is the essence of § 524(c). And, there is authority for the proposition that the Code § 524(c), reference to “agreement between ” contemplates a completely voluntary procedure, not one forced upon a party in an adversarial action endorsed by the Bankruptcy Courts.

“An agreement is a manifestation of mutual assent on the part of two or more persons.” Restatement of the Law: (2d) Contracts § 3; Williston on Contracts, Third Edition, § 2.

The secured creditor holding a lien on collateral of the debtor to a discharged debt may not propose an agreement or order to require the debtor to reaffirm; and the debtor likewise may not unilaterally propose an agreement or order to require the creditor to reaffirm. The statute clearly anticipates an executed, voluntary “agreement between ” the debtor and creditor prior to the application for approval by the Bankruptcy Court at the discharge hearing.1

For these reasons, the complaint must be dismissed.

Moreover, the action permitted under § 524(c) is not one of the adversary proceedings described in Bankruptcy Rule 701; hence the procedure under § 524(c) is not governed by Part VII of the Bankruptcy Rules.

Procedurally, a § 524(c) proceeding is properly commenced by an Application. Applications are described under Bankruptcy Rules 901(4) “Application” as “any request to the court for relief that is not a pleading or proof of claim. ... An application for an order against another party may be required to be made by motion.”

Rule 901(9) “Motion” and the Advisory Committee’s Note (4) and (9) make clearer that a motion involves a “contested petition” or to seek a determination in any other disputed matter “including adverse parties,” while an application is proper to seek “an order involving no adverse party.” On occasions where an Application is contested “the court may require the applicant to conform his request to a motion or pleading.” Advisory Committee’s Note 901(4); See Rule 914. An agreement under § 524(c) is not disputed — does not involve an adverse party.

See local Interim Bankruptcy Rule 7001(b), USBC, ND Ga.

*34The court also finds that because neither the FHA, the United States Attorney, nor the Attorney General were served pursuant to and as required by Bankruptcy Rule 704(d)(4), the complaint must be dismissed.

Plaintiff’s request is hereby DENIED. The complaint is DISMISSED.

Vinson v. Farmer’s Home Administration (In re Vinson)
5 B.R. 32

Case Details

Name
Vinson v. Farmer’s Home Administration (In re Vinson)
Decision Date
Apr 22, 1980
Citations

5 B.R. 32

Jurisdiction
United States

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