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.

Guaranteed Auto Credit From Auto Net Credit Centers

Presently, there are many Auto Net Credit Centers that auto finance endorsements from instant Easy Credit Auto marts in the USA. Now you can even get an okay for Instant Car Loans from banks, credit unions and even from any local auto mart even if you have a poor credit balance. After completion of the auto loan endorsement, an agent from the department will immediately process your request. The representative will then contact you and discuss what you need to settle on which car loan option is suited best for your circumstances.

Easy Credit Auto sales are meant for people who face credit problems that do not meet the criteria for loans from banks and credit unions. This online car loan application is completely secure and if anyone is planning for a car loan, these auto credit centers are the right place as they have made it easy for anyone in the United States with credit problems to buy a car. There are many reasonable auto credit loan choices for consumers with fair, poor, no, slow and low credit scores.

An instant credit approval depends on what information the applicant submits online. All information, for example where employed and salary has to be verified. The applicant should be as precise as possible while completing the online easy credit application form. If any part of the information submitted in the application does not match with what is verified, the instant car loan authorization will be annulled.

So if the salary, employment and all other information submitted is correct after verification, the guarantee of the car loan will be approved. All approvals are based on what is affordable on a monthly basis. Money down will be required if the car that is bought is more than the approval amount.

While applying for a Guaranteed Car Finance agreement, the applicant should set realistic expectations like selecting the right car, as this is the most vital part in getting a Guaranteed Car Finance loan approved. As soon as the auto mart sets a financial plan for the applicant, they usually give the nominee a choice of three or more cars. Once the selected applicant picks a particular car, he/she should have it thoroughly checked by an ASE Certified Master Mechanic.

The next immediate thing to reflect on is the Guaranteed Auto Credit as the loan term should preferably be kept as short as possible. If there is enough space in your budget once you’ve cut down on the term, consider the purchase of GAP insurance and/or an extended warranty to cover the length of the financing contract. In particular, the first auto loan with poor credit will have the interest rate quite high, so the shorter the term is kept, the less the interest paid.

So now with so many Auto Net Credit Centers an easy auto loan approval online is easily available. This premier EZ application will take just a minute to complete. All information submitted by the consumer is kept completely private and guaranteed secure.

Chapter 7 Bankruptcy Car Loans

More now than ever before, many people are searching for chapter 7 bankruptcy car loans. With today’s economy, people find themselves filing chapter 7 bankruptcies to relieve themselves of too much debt.

When someone files for a chapter 7 bankruptcy they are filing with the court system asking that they be discharged from all unsecured debt. Unsecured debt includes such things as medical bills or credit cards.

Compare this to secured debts such as your home and your vehicle. Due to homestead protection laws your home is safe from your creditors acquiring it. With a chapter 7 bankruptcy, your car loan may need special consideration.

In some cases, people are finding that they must release their vehicle along with the discharge of other debts. This may be caused by a couple different situations. One reason may be that they have simply fallen too far on the payments. Or another reason may be because the monthly payment is simply too high to make and stay current with the new finances.

If this is the case for you, you may be in the market for chapter 7 bankruptcy car loans. These are considered sub-prime auto loans and you may be able to apply a few months after your discharge has occurred. Depending on some situations you may not have to wait this out and can apply as soon as you are discharged.

Because not all lenders work with those who have recently filed chapter 7 bankruptcies, it will require a little research to find a dealership that may offer you this specialty loan. Doing an internet search will help you locate a couple of resources near your home.

The next thing to do would be to take a good hard look at your new monthly budget and determine realistically what type of payment you can handle each month. Being prepared with this figure can help ensure you are not smooth talked by some salesman to buy a more expensive car. The biggest key after bankruptcy is to be sure that you live within your means and can make all your new payments on time.

Now collect a few pieces of documentation to bring with you when you visit a car dealer or auto consultant that offers chapter 7 bankruptcy loans. This would include a couple recent check stubs to show proof of your income. Also bring your driver’s license and proof of insurance. And the final thing to bring with would be a couple utility bills. This will serve as proof of residency.

You are now prepared to pay a visit to the dealership or the auto consultants office. Tell the salesperson your situation and the particular reasons that you had to file the bankruptcy in the first place. Ask them if there is anything else you can provide to help make the loan process a little better. Use the advice of the expert to give you the greatest chance at getting a chapter 7 bankruptcy auto loan.