Can A Debtor Waive Their Right To A Bankruptcy Discharge in a Contract?

Posted by Wesley Scott on December 22, 2018 at 4:50 PM
Wesley Scott

Think about this for a moment. Can a creditor write in a contract, any contract, that you waive your right to file bankruptcy on this debt/contract, and therefore, further protect creditor’s ability to get paid back on a debt? Wouldn’t this be clever for a creditor to do this? Wouldn’t all creditors do this? If this were possible, and enforceable, all lawyers for creditors would be committing malpractice if they failed to write a provision into every contract waiving debtor’s right to file bankruptcy on this debt.

Now, it’s not that creditors can’t put these provisions into the contracts, they can. However, those provisions are completely unenforceable under federal bankruptcy law. Section 524(a)(1) and (2) states the debt is discharged whether or not such debt is waived!

There really are only 3 ways to have a dischargeable debt held non-dischargeable in bankruptcy. First, debtor signs a reaffirmation agreement and files it with the court. Second, a creditor successfully brings an objection to discharge under Section 523 of the Bankruptcy Code. Third, debtor loses his discharge under Section 727 or 1328 of the Bankruptcy Code.

So, if it were as easy as contracting away your right to a bankruptcy discharge, no one could ever file bankruptcy because creditors would make sure waiving a bankruptcy discharge was part of the contract you will sign as a condition of getting the loan. In other words, contracting away your right to file bankruptcy would make federal bankruptcy law obsolete and worthless. Bottom line is you cannot contract away your right to file bankruptcy on a debt. Thank goodness!

When the time is right, or when you are ready, reach out to Minnesota’s HIGHEST google reviewed bankruptcy law firm at www.kainscott.com. You will be so thankful you did.

 

 

Topics: Bankruptcy Discharge