Waiving Your Rights to Bankruptcy

  • By:Lars Olsen
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Waiving Your Rights to BankruptcyCreditors want to protect themselves against the prospect of debts owed to them being discharged. One of the ways creditors try to do this is through adding a “bankruptcy waiver” clause to contracts and agreements. It’s important to remember that these waivers are not binding. Any waiver of your future bankruptcy rights is not enforceable. Congress has expressly stated in the bankruptcy codes that a bankruptcy debt discharge halts any action against the debtor “whether or not discharge of such debt is waived.” 11 U.S.C. § 524(a)

Congress found that allowing waivers of bankruptcy rights would not be good public policy. To do so would drastically undermine the consumer right to file for bankruptcy, since if the waivers were permissible every loan or credit offer would contain one. However, the debtor can choose to waive their right to discharge a debt in the following circumstances: the debtor can opt for a reaffirmation of a debt, or execute a waiver that is approved by the bankruptcy court.

While a creditor cannot enforce a waiver of bankruptcy rights, the debtor is not entitled to tell the creditor that he or she will not file for bankruptcy while intending to do so. Taking a loan with the intention of discharging it through bankruptcy later on could be considered fraudulent. Not only can the creditor ask the bankruptcy judge to make the debt non-dischargeable, they may also be able to file a criminal complaint.

 

 

 

Posted in: Bankruptcy

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