Opinion
Case No. 8:15-bk-10554-CPM
08-04-2016
In re: Teneka Autmon-Downing, Debtor.
Chapter 7 ORDER DENYING MOTION TO SET ASIDE DISCHARGE
THIS CASE came on for consideration of the Debtor's Motion to Set Aside Discharge as to Roundpoint Mortgage for the Limited Purpose of Filing a Reaffirmation Agreement (the "Motion") (Doc. 19). The Debtor received a discharge (Doc. 14) on February 18, 2016, and the time for filing an enforceable reaffirmation agreement has thus passed. See 11 U.S.C. § 524(c)(1). The Bankruptcy Code does not provide for "setting aside" a discharge, and "revocation" of a discharge may be sought only by the trustee, a creditor, or the United States Trustee and only under limited circumstances in accordance with 11 U.S.C. § 727(d). Thus, the Court finds that it must deny the requested relief.
Furthermore, the Court notes that Roundpoint Mortgage need not require a reaffirmation agreement for the Debtor to become liable for the entire amount owed under a refinanced loan secured by a lien on the Debtor's homestead. Administrative Order Granting Relief from Discharge Injunction to Enter into Agreement to Refinance or Modify Debt Secured by Lien on Homestead, Admin. Order FLMB-2015-9, a copy of which is attached hereto, expressly states that with respect to a debtor or former debtor ("Debtor") who initiates a request to refinance or modify a debt secured by a lien on homestead property, "[i]f the Debtor enters into an agreement to refinance or to modify an existing debt secured by a lien on homestead property, the Debtor may become liable for the entire amount owed under the new (refinanced or modified) loan, notwithstanding the Debtor's having obtained a discharge of the debt owed under a prior agreement secured by a lien on the same property." Accordingly, it is
ORDERED:
1. The Motion is DENIED.
2. Roundpoint Mortgage shall not refuse to enter into a refinancing or mortgage modification agreement with respect to the Debtor's homestead based solely on the Debtor's failure to enter into a timely reaffirmation agreement.
ORDERED.
Dated: August 04, 2016
/s/_________
Catherine Peek McEwen
United States Bankruptcy Judge The Clerk is directed to serve a copy of this order on the Debtor and Roundpoint Mortgage. UNITED STATES BANKRUPTCY COURT MIDDLE DISTRICT OF FLORIDA www.flmb.uscourts.gov In re ADMINISTRATIVE ORDER GRANTING RELIEF FROM DISCHARGE INJUNCTION TO REFINANCE OR MODIFY LIEN ON HOMESTEAD PROPERTY, Administrative Order
FLMB-2015-9 ADMINISTRATIVE ORDER GRANTING RELIEF FROM DISCHARGE INJUNCTION TO ENTER INTO AGREEMENT TO REFINANCE OR MODIFY DEBT SECURED BY LIEN ON HOMESTEAD
When a debtor or former debtor (the "Debtor") has received a discharge and later seeks to refinance or modify an unreaffirmed debt secured by a lien on the Debtor's homestead property, the Bankruptcy Court for the Middle District of Florida finds that a secured creditor should not require individual judicial relief before the Debtor can negotiate and enter into a refinance or modification agreement. Accordingly, it is
ORDERED:
1. This order applies only when the Debtor initiates a request to refinance or to modify the debt secured by a lien on homestead property. This order does not authorize unsolicited attempts by any creditor to renegotiate debt that was not reaffirmed prior to a Debtor's discharge.
2. This order grants relief from the discharge injunction to a secured creditor for the purpose of negotiating and entering into a refinance or modification agreement with a Debtor.
3. If the Debtor enters into an agreement to refinance or to modify an existing debt secured by a lien on homestead property, the Debtor may become liable for the entire amount owed under the new (refinanced or modified) loan, notwithstanding the Debtor's having obtained a discharge of the debt owed under a prior agreement secured by a lien on the same property.
DATED: November 16, 2015.
/s/_________
MICHAEL G. WILLIAMSON
Chief United States Bankruptcy Judge
See In re Nichols, 2010 WL 4922538, *2 (Bankr. N.D. Iowa 2010) and cases cited therein. See also In re Quevedo, 2016 WL 801386 (Bankr. M.D. Fla. Feb. 12, 2016) (citations omitted) (referring to "wealth of authority holding that a debtor's desire to enter into a reaffirmation agreement does not constitute sufficient cause to vacate a discharge order").