The Importance of a Hold-Harmless Clause

January 27, 2015 § 1 Comment

Jeremy and Tiffiny Moseley entered into a property settlement agreement (PSA) that was incorporated into their 2000 irreconcilable differences divorce judgment. One of its terms was that Jeremy would have “exclusive use and possession of the 1998 Chevrolet Camaro,” and that he would be “solely responsible for the payment of all debt, insurance, and taxes associated with said vehicle. The agreement also provided that Jeremy would “hold [Tiffiny] harmless for any debt associated with said vehicle.”

Following the divorce, Jeremy filed for bankruptcy in Arizona, where he had moved. He listed as a creditor the lienholder on the Camaro, Trustmark, but he did not list Tiffiny as a co-debtor or separate creditor based on the hold-harmless language. Jeremy was discharged in bankruptcy in 2001. [Note that this was a pre-2005-amendment non-support obligation that was dischargeable in bankruptcy]

Trustmark sued Tiffiny and obtained a judgment against her for more than $15,000, plus interest.

Tiffiny sued Jeremy for contempt for non-compliance with the hold-harmless clause. The chancellor held that the bankruptcy had no effect on his obligation to Tiffiny under the hold-harmless clause, and awarded her a judgment against him, plus interest and attorney’s fees. He appealed.

In Moseley v. Smith, decided December 2, 2014, the COA affirmed, and Judge Maxwell’s opinion includes some significant language about hold-harmless clauses that you need to file away for future use:

¶16. We begin with the bankruptcy issue. Moseley seems to treat his financial obligations involving the Camaro as a singular debt—a debt he owed to Trustmark, which was discharged in his Chapter 7 bankruptcy. But Moseley actually had two debts connected to the Camaro—(1) the debt to Trustmark bank to repay the car loan, and (2) the contingent debt to Smith, which would arise if Trustmark went after her for repayment of the car loan. While Moseley listed the first debt to Trustmark on his bankruptcy petition, he omitted his second debt to Smith. He also failed to otherwise notify Smith that her rights as a creditor may be affected by his bankruptcy petition. Thus, his debt to Smith was not covered by his bankruptcy discharge. See In re Hill, 251 B.R. 816, 821 (Bankr. N.D. Miss. 2000) …

¶17. In bankruptcy terms, the provision in the property-settlement agreement that Moseley would hold Smith harmless for any debt associated with the Camaro “create[d] a ‘new’ debt, running solely between the former spouses.” In re Jaeger-Jacobs, 490 B.R. 352, 357 (Bankr. E.D. Wis. 2013) (citing In re Schweitzer, 370 B.R. 145, 150 (Bankr. S.D. Ohio 2007)). Under the version of the United States Bankruptcy Code in effect during Moseley’s 2001 bankruptcy, this type of debt was presumptively non-dischargeable as a non-alimony debt “incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record[.]” In re Clark, 207 B.R. 651, 655 (Bankr. E.D. Mo. 1997) (quoting 11 U.S.C. § 523(a)(15) (1994)).

The opinion goes on to analyze the notice requirements in effect at the time of Jeremy’s bankruptcy, and how failure to give Tiffiny notice affected her ability to file a timely objection. Those notice and objection requirements were changed by the 2005 amendments to the bankruptcy laws.

The important point here is that when you add hold-harmless language to your PSA you are creating a new debt between the parties that is most likely not dischargeable, is entirely separate and apart from the underlying obligation, and is enforceable via contempt in chancery court.

It would seem to me that even without the hold-harmless language the agreement between the parties is a separate contractual obligation that would be entirely enforceable; however, the authority cited by Judge Maxwell raises the point to a higher level and should remove all doubt if the hold-harmless language is included.

It’s simple to add that hold-harmless language to your PSA templates. It won’t hurt your client if she is the co-debtor who will not be paying the debt, and it just might make a crucial difference somewhere down the line — and that, after all, is your job.

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