Auto Repossession Before Bankruptcy

The other day I received a call where an individual asked me whether filing bankruptcy would allow for a car that has been repossessed to be returned. Although my response probably failed to satisfy the caller (the usual attorney response of it depends), here is what is required in California (at least how the courts have viewed the law).

Background

In most vehicle contracts the lender retains a right to repossess a vehicle if the borrower fails to make the scheduled payments. With many contracts, this repossession can be done outside of any court proceedings.

However, once an individual files for bankruptcy many of the rules change. For one, an automatic stay is implemented. This stay prevents most actions against the debtor (individual that files for bankruptcy). Specifically, the automatic stay strictly prohibits any lawsuit or repossession against a debtor that is delinquent on car loan payments. Any repossession after a bankruptcy petition is filed constitutes a violation of the automatic stay, with the repossession void and of no effect. In that case, the lender would be immediately required to return the vehicle to the debtor.

Effect of Bankruptcy on Prepetition Repossession

Section 542 of the Bankruptcy Code requires that entities in possession of “property of the bankruptcy estate” are generally required to turn the property over to either the trustee (in Chapter 7) or the debtor (in Chapter 13). This big sticking point then for this turnover requirement is determining what is “property of the estate.”

Section 541 of the Bankruptcy Code defines property of the estate. This definition includes “all legal or equitable interests of the debtor in possession as of the commencement of the case.” Basically this definition states that whatever rights the debtor has at the commencement of the case continue in bankruptcy. As for the vehicle that has been repossessed, the court has to discover what rights a debtor had when the bankruptcy case was filed.

These rights are determine by state law (California State law). Under the California Civil Code (section 2983.2), a debtor has the right to redeem a repossessed vehicle up until the date the car is sold by the repossessing lender.

Two recent cases have come to different conclusions as to whether turnover of the vehicle is required upon the filing of the bankruptcy petition. First, in a case from the Southern District of California (In re: Fitch, 1998), the bankruptcy court held that while a repossessed car is property of the estate, the right to possess the car was transferred to the lender prior to the filing of the bankruptcy petition. The court interpreted the statutes to mean that the automatic stay freezes the positions of the debtor and creditors. Thus, the lender had the right to maintain possession. The court did state that a vehicle could be returned to a debtor upon the debtor’s giving of adequate protection. In most cases adequate protection means the establishing of proof of insurance and proof that the debtor will be able to make the regular payments on the car.

In the Northern District of California (In re: Cortez, 2010), the Bankruptcy Court interpreted the Bankruptcy Code, and specifically the section on the automatic stay, to mean that a “knowing retention of estate property violates… the automatic stay.” Because a debtor has the right to redeem until the date of a sale by the lender, the vehicle remains part of the estate, and subject to turnover. In this case, the debtor provided adequate protection to the secured creditor. However, the court seemed to say that it was not necessary for turnover.

What to do?

If your car has been repossessed, and you want to make sure you retain possession, bankruptcy may be a solution if you are not able to pay the balance before a lender’s sale. However, while the Northern District seemed to state that adequate assurance is not necessary for turnover, it will ultimately be necessary to avoid a lender’s motion for relief from the automatic stay. Be prepared to show (a) insurance, (b) regular and sufficient income, and (c) an ability to pay for the vehicle.

Second Hand Cars Market In India

A used car can be much cheaper than its new counterpart. The depreciation is lesser and car financing too can be obtained easily. A survey was conducted and it was revealed that the demand for the used car market in India per year is 1.4 million cars. Isn’t that surprising?

Unfortunately, only 10 per cent of the Indian used car market is organized. The remaining 90 per cent remains unorganized. Out of this unorganized segment, 30 per cent belongs to the automobile vendors and the remaining 60 per cent transactions are usually carried out directly by the used car buyer and customer. Most of the time, the two parties know each other. Such transactions happen in large numbers but within the law limits of India.

Car buyers, however, need to be aware that such transactions can be risky. In a country like India used automobile buyers get cheated very often. The pricing, maintenance claims and clear ownership records can all be made up. Mechanics who test the used car and middlemen who carry out the deal can manipulate a decision. First timers who have no clear idea of the condition of used cars usually available in the used car market are fooled very easily. The good-for-nothing old automobile fetches a good price.

Second hand car dealers, very often, use fake parts to offer an attractive price. The used car dealers get 5-10 per cent commission by settling the deal through low-quality parts. The new old automobile is therefore prone to repairs every now and then. However, this is not always true. The second-hand Indian market also consists of sellers who sell off their well-maintained cars in order to upgrade to bigger cars.

A pre-owned automobile may not come with warranties, OEM parts, insurance and taxes and this is exactly where auto makers have endeavored to bring in a system of checks and balances. The second hand market in India today has certified used car outlets screened by car makers. For the automobile seller, the certified used car outlet gives the best market price, thorough evaluation by experts, and an option to choose any other automobile from the manufacturer range. For buyers, such outlets offer a lot more. They get a warranty on the used automobile, insurance, repairs that use OEM parts and thorough checkups by trained technicians.

Some of the well known certified used car dealers in the Indian market are Maruti TrueValue, Honda Auto Terrace, Ford Assured, Toyota U Trust, Hyundai Advantage, Mahindra and Mahindra’s First Choice. Many more are yet to come to India. The branded used car chains are slowly realizing the potential of the used car market.

Industry experts expect 50 per cent of the used cars sales to be brought under organized car market over a period of 3 years. Used car outlets will probably spread into II tier cities by 2012. Car makers have realized that the used car market can generate very high revenues. Top car players say that their used car ventures are paying handsome dividends. Hence the companies are now making it mandatory for their dealers to run used car outlets too.

The branded used car outlets have now started buying and selling off second hand cars from multiple brands. By offering a one-stop shop for all customer queries, the outlets can win over customer loyalty. They provide assistance in not just buying and selling, but in financing, insurance and many other services too.

How Not To Get Scammed On Your Car Lease

Bad Credit automobile leasing has been praised as a more attractive option to purchasing a car, offering in the process the flexibility to drive a new car for less. The reality, however, is that leasing is an option that is fraught with many pitfalls for the average customer. Leasing regulation does not require as much disclosure as buying a vehicle. This has given rise to many leasing scams that trick the customer into believing they are into a good deal when, in effect, all they are getting is a rough deal on the dealer’s terms.

Take a peek at a few of the common scams and how you can avoid being ripped off by them:

1. Unnaturally low interest rates:

Some bad credit auto dealers will offer up a lower interest rate when actually it is a good deal higher because they are quoting the money factor as the interest rate or possibly estimating the loan without amortizing some fees into the loan lease. For instance, the money factor is generally expressed as a 4 decimal figure, something like 0.004. Many of the less reputable bad credit vehicle lenders cite this as a 4% rate of interest when, it really should be multiplied by 24 to reach a closer approximation of the interest rate on your loan. Therefore, the interest rate is very much higher at 9.6% and not the rate of 4%.

Make a point of understanding all the numbers and what method the lender used to arrive at their interest rate. Look out for any additional fees, such as amortization costs, not added into the calculation. If you’re not satisfied, do not sign any lease aggreements without a better understanding.

2. You may end your lease early for a low fee

This is the biggest scam of all and the one that I fell for the first time I ever took out a lease. The lender told me I could definitely end my vehicle lease early and it would only cost me an ‘early termination fee’ of $400. Guess what… that was only the small administrative penalty for early termination, NOT the actual ‘early termination fee’. This can run into the thousands of dollars.

Do not confuse the early termination administrative penalty with the termination fee. Read the small print carefully and know exactly how much you will get charged should you terminate your lease before its scheduled end.

3. Why pay for an extended warranty

Another game that the car dealers like to play is offering you an extended warranty – to protect your investment. The only investment that will be protected here is the dealer’s profit. 99% of the time on auto leases, the extended warranty is included in your monthly lease payments. So obviously you don’t need to pay for it again. If they do convince you to go for the extended warranty, which by the way, you SHOULDN’T, you need to look carefully at the contract you’re signing as you may be buying a 3 year warranty for a 2 year lease. Not too smart – on your part.

There are some more things that the dealer can add onto your lease, or even sneak in on you. Just be careful that you examine all the documents thoroughly before you sign on the dotted line. I hope you have gotten some new knowledge from this article on auto lease scams.