VS. ADV. NO. 03-1021



On August 1, 2003 Marti (Salyer) Keaton (the "Plaintiff") filed a Motion to Exempt Discharge of Debt (Verified), which the court treated as a complaint commencing the above-styled adversary proceeding. The complaint sought a determination that an obligation of Warren Douglas Salyer (the "Debtor") was nondischargeable under 523(a)(2) and (5) of the Bankruptcy Code. (1) That obligation arises under a provision of a Marital Settlement Agreement incorporated into a decree entered in the parties' divorce case by the Lawrence Circuit Court on May 29, 2002, which ordered the Debtor to pay the "Lowe's credit card" indebtedness.

A summons was issued and served on the Debtor and his attorney on December 1, 2003. On January 28, 2004 the Debtor filed an answer stating that he "has no objection" to the relief sought by the complaint, that he "has always been willing to assume the debt (Lowe's account) and is more than willing to sign an agreed order to that effect," and that he "agrees to assume and be responsible for the referenced debt." The answer did not otherwise respond to the averments set forth in the complaint.

On February 19, 2004 the Plaintiff filed the motion presently before the court in this adversary proceeding and also filed a Motion to Exempt Discharge of Debt in the Debtor's Chapter 7 case. The Debtor did not file a response to the Motion for Judgment on the Pleadings or appear at the hearing thereon. However, on March 5, 2004 the Debtor filed in the Chapter 7 case a Response to Motion to Exempt Discharge of Debt, the entire text of which was as follows: "Comes the debtor, Warren Douglas Salyer, by and through counsel, and for response to the motion to exempt discharge of debt, states that he has no objection."

Accordingly, it appears that the Plaintiff is entitled to judgment on the pleadings and also that the Debtor affirmatively consents to the entry of judgment. (2) The court will, therefore, enter a separate judgment for the Plaintiff, and will enter a separate order in the Chapter 7 case denying the Plaintiff's Motion to Exempt Discharge of Debt as moot.

Copies to:

William H. Jackson, Esq.

Franklen K. Belhasen II, Esq.

1. While the complaint references 523(a)(6), the material quoted demonstrates that the intended reference was to 523(a)(5).

2. While there are cases holding that a waiver of dischargeability of a particular debt must comply with 524(c) and (d)'s requirements for reaffirmation agreements rather than waivers of discharge, none of those cases involved a consent to judgment in a nondischargeability adversary proceeding. "The enforceability of a nondischargeability settlement reached in bankruptcy dischargeability litigation is quite different from the enforceability of such an agreement entered into by a defendant in a nonbankruptcy forum prior to the filing of any bankruptcy case." In re Saler, 205 B.R. 737, 744 (Bankr. E.D. Pa. 1997), aff'd, 217 B.R. 166 (E.D. Pa. 1998). "Section 524, by its terms, only applies to reaffirmation of dischargeable debts" and a judgment of nondischargeability entered by agreement is not a reaffirmation so "the agreement could not be governed by that section." Saler, 217 B.R. at 169. Moreover, 524(c) and (d) apply only to agreements to repay debts that are dischargeable and a consent judgment entered in an adversary proceeding under 523(a) determines that the debt is not dischargeable. Martinelli v. Balley Bank (In re Martinelli), 96 B.R. 1011, 1014 (B.A.P. 9th Cir. 1988). Moreover, in this case, the Plaintiff is entitled to judgment on the pleadings irrespective of the Debtor's consent.