Legal Question in Bankruptcy in California

I have been told that a debtor can agree to waive their right to bankruptcy discharge of a debt in a written agreement. Is this true? Can a person waive their right to bankruptcy discharge of a debt in a written agreement? I looked at the exceptions to discharge under 523(a) of the bankruptcy code and there is no exception for where a debtor agrees to waive their right to a bankruptcy discharge in a written agreement. Therefore, the issue doesn't seem very clear whether a person can legally give up that right or not.

For example, say I want to loan $5,000 to someone, and we agree to sign a written agreement for this loan. Can we legally agree in the written agreement that the debtor waives his right to a bankruptcy discharge of the debt, and that the debt shall become a nondischargeable debt for purposes of a bankruptcy discharge? Will this agreement make the debt become a nondischargeable debt in the event that the debtor attempts to file bankruptcy to discharge the debt? In a written agreement, can a person legally waive their right to a bankruptcy discharge of an unsecured debt?


Asked on 3/30/10, 1:18 pm

2 Answers from Attorneys
Carl Starrett Law Offices of Carl H. Starrett II

The information you heard is incorrect. A pre-bankruptcy waiver of the right to receive a discharge of a debt would not be legally enforceable.

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Answered on 4/04/10, 1:29 pm
Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

Under 11 USC � 727(a)(10) a waiver of discharge is only possible after filing bankruptcy, and then it must be approved by the court. However, you can get around this by demanding collateral for the debt such as real estate, a vehicle, or other personal property This creates a lien on the property that will pass through a bankruptcy. Normally the lienholder does something to put the general public on notice of the security interest so that the collateral can't be sold -- or seized by another creditor. Real estate security interests are recorded at the county recorder, vehicle security interests at the DMV, and for other personal property you would file form UCC-1 with the Secretary of State.

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Answered on 4/04/10, 1:35 pm


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