Going after me for a deficiency?

[BigJohn]

Thank you for weighing in JB- (was wondering where the heck you went- lol)

I too, have had good success with my judge and trustee also (as you know ) but I didn't think it was worth mentioning here, after reading some of the comments written. My judge has been very fair, and the Trustee has assisted me where I needed it. No complaints here (yet). Obviously, I have made the mistake of asking a few honest questions here and I was judged for it. Personally, I'd rather ask a question, sound foolish and learn something, than to assume I know something and fall on my face later.

I wonder if the ones who judge others for asking questions are the same ones who thought it was "uncool" to ask a question in school, and subsequently failed the next day's test because of it. LOL

I like to fight my own battles. I had a divorce where I had a lawyer, paid him about $25,000 and had to tell him almost everything that had to be done. Right now I haven't filed chapter 13 but did visit the Federal Court for our area and was told I could not file Pro Se.

When I was going thru the divorce, a lot of people 'knew' everything. We lived in a 50/50 State but oddly it ended as 100/0. She asked for !00% and she got the 0%.

As for filing Pro Se, In one court where I proceeded on my own, the judge refused to listen to me but then she is noted for not listening to anybody. The case finally got dismissed (in my favor) but it wasn't anything I did.

[FranksMom]

I was simply expressing my opinion that I thought you rude to slap him down so hard.

Really? I'm sorry for being rude. Perhaps I was a bit curt. Did you find HHM implying that I'm too incompetent to handle my own case rude too, or did that slip right by you?

You can "echo" whatever you want... but it still doesn't help me, or anyone else who may be watching this thread. Is your mission here to exchange information or to "echo"? Apparently, you're trying to get under my skin by reminding me (again) how much I need an attorney... I wonder why you would purposely feel the need to do that?

Are you implying that you would not assist someone in this forum whom, in "your opinion" needs a lawyer? My next question would be, do you REALLY have the right to judge anyone else here? As you said, we're all here for the same reason, so help where you can, and we should try to keep the things that don't help out of the forum.

Speaking of which, do you remember the thread started by HHM a long time ago, regarding people responding to visitor's questions with "Ask your attorney", or "Get a lawyer"? HHM basically said that if you can't help or answer the question, don't bother saying anything, as it's "not really helpful". I agree. Telling someone to get a lawyer when they're here asking for help is not helpful, unless you believe that people who visit this forum aren't aware of what an attorney is and how they can benefit from retaining one. If that's the case, perhaps you should also explain to these people who ask for help what electricity is, and how to log on to the internet. In case you've forgotten, here is a link to the original thread, and you were an active participant in it:

http://www.bkforum.com/showthread.php?t=29088

I can put a band aid on a cut finger but if I need an appendectomy, I certainly would not attempt one on myself.

That's a cute analogy , but this is a bankruptcy, not a case of acute appendicitis. And in a bankruptcy, and nearly all other legal proceedings, we have every right to represent ourselves in court. Some of us may do a better job representing ourselves than an attorney could. Some of us may not. Either way, you, nor anyone else has any right to judge who needs a lawyer and who doesn't, based on questions that they are asking in a forum. I especially wouldn't tell someone how incompetent they are while giving "opinionated advice" that I was misinformed about. Just my two cents.

I have no hard feelings towards you, Angelina, or anyone else, we just need to support and help each other where we can, the best way that we can... heaven knows there's enough going on in this world right now. My knowledge is limited, but I'm certainly willing to help or support anyone who needs it unconditionally... even if they should get a lawyer.

[FranksMom]

I like to fight my own battles. I had a divorce where I had a lawyer, paid him about $25,000 and had to tell him almost everything that had to be done. Right now I haven't filed chapter 13 but did visit the Federal Court for our area and was told I could not file Pro Se.

When I was going thru the divorce, a lot of people 'knew' everything. We lived in a 50/50 State but oddly it ended as 100/0. She asked for !00% and she got the 0%.

As for filing Pro Se, In one court where I proceeded on my own, the judge refused to listen to me but then she is noted for not listening to anybody. The case finally got dismissed (in my favor) but it wasn't anything I did.

Hi BigJohn,

Persistence pays off. I have consulted with bankruptcy attorneys who didn't even know what lien stripping was... that's very scary! I've had similar experiences with attorneys as you have, and I admit, it doesn't do a whole lot to build my confidence.

I am only aware of not being permitted to file a Business Bankruptcy pro se, you are required to have an attorney for that. Which district are you in??

[fltoo]

[HHM]

This thread is not about pro-se vs. non-pre-se in general. I merely stated an opinion based on the questions and opinions already posed by the OP and given the complexity of the situation, it seems more like a case a lawyer should handle. I have no problem with people filing Pro Se.

There was some miscommuncation at the beginning of the thread that led to this...she referred to a 910 vehicle, which means to me a vehicle that actually qualifies for a 910 cram down, but the OP was referring to a vehicle that was within the 910 days and does not qualify for a 910 cram down. The other issues, she has an LLC which is being sued and she is being sued personally and she is in a legal grey area with regard to the status of her suit and the chapter 13.

The problem is not so much the bankruptcy, its the surrounding issues about the legal and practical implications of the BK that are problematic for this OP.

I hope things go well. For the record, I did not say...I don't know, you should go see an attorney. I have offered advise and answers in the threads I responded too, but suggested that you hire an attorney.

[FranksMom]

You don't get it both ways...if you decide to KEEP the vehicle and it is a 910 vehicle, you get to cram it down. If you surrender, you don't get to cram their claim, they have an unsecured claim for the deficiency.

In my interpretation, what you wrote here, is that if I keep a 910 vehicle, I can cram it down. As written in a prior posting of mine, you cannot cram down a 910 vehicle (a vehicle that has been purchased within 910 days of filing). Then you state:

When you say a 910 vehicle, that is insider speak for a vehicle that "qualifies" under the 910 rule to be crammed down. So in that sense, we seemed to have mis-understood what each other was saying.

I can appreciate that you are trying to put a positive spin on this, however, I don't believe there was any misunderstanding, rather, an error in opinion. A 910 vehicle is a vehicle that was purchased within 910 days prior to filing a petition. 910 vehicles cannot be crammed down. The 910 "rule" you are referring to, refers to the 910 vehicle itself that secures a claim that cannot be modified.

Personally, I'd rather learn from my mistakes as opposed to defending them. But that's just me....

[HHM]

Believe what you want, I tried to be conciliatory in that I misread your post, but you obviously don't understand my larger point. I thought you were referring to a vehicle that qualified from cram down, a 910 vehicle, MEANING, the loan is older than 910 days. Keep in mind, saying "910 vehicle" is short hand...you did not define what you meant by that phrase...it is not a technical phrase...when I use the phrase 910 vehicle, it means a vehicle that actually qualifies for a cram down, meaning, hey "you have a 910 vehicle, we can cram it down". You obviously mean the opposit, for some reason. I don't see that it is my fault when you do not define ambigous phrases. I know what the statute says. Thus, I thought you were asking, could you dispute the deficiency on a vehicle that you were surrendering that would otherwise qualify for a 910 cram down.

1. If the vehicle DOES NOT qualify as a 910 vehicle, and you are surrendering the vehicle: (a) the creditor has a contingent, unliquidated, unsecured claim for the deficiency. (b) since the vehicle has not actually been surrendered, they have a secured claim as well in so far as they have a security interest in the vehicle. (c) once the vehicle is surrendered and sold, the amount of the unsecured claim becomes known. (d) However, because of the timeline for filing proof's of claim, the creditors has to file something. In any event, it is not clear what you would dispute exactly.

2. If the vehicle would qualify for a 910 cram down, and you are surrendering the vehicle: The scenario is exactly the same as above because you are surrendering the vehicle. The creditor gets to claim a general unsecurd debt in the chapter 13.

[FranksMom]

HHM, I accept your apology.

[BigJohn]

I think I read somewhere that business vehicles can be crammed down and the 910 rule doesn't apply to business vehicles. Can somebody verify?

I think if there are NON-PMSI, such as gap insurance, extended warranty, etc. that some courts allow the vehicle to be crammed down.

I guess there is a big dispute on a vehicle traded in that is upside down and is rolled into the new loan.

[justbroke]

I think I read somewhere that business vehicles can be crammed down and the 910 rule doesn't apply to business vehicles. Can somebody verify?

Yes... but you need to be able to prove it.

Basically, to be subject to the so-called hanging paragraph in 1325(a)(5)... the vehicle must meet three tests (and all three test);

1. must have been purchased within 910 days of filing the petition; and
2. must have been purchased for personal use; and
3. must be a purchase money security interest (PMSI)

Some judges, especially Judge Funk in Florida, has gone on to say that the non-PMSI components can be crammed down no matter what. That includes gap insurance, and even negative equity!

Of course, and again, much of this looks to the underlying State non-bankruptcy law to determine just what constitutes a purchase money security interest.

There are also two schools of thought as well. One is transformation and the other is the dual-status rule.

Transformation would mean that if any part of the purchase price was NON-PMSI, then the whole deal is NON-PMSI and not subject to the 910 limitations in 1325(a)(5).

Dual-status would mean that some part of the purchase price is NON-PMSI.

Anyhow, there's a good writeup on Bankruptcy Law Network which talks about Judge Funk's decision.

And, note, there was a recent District Court decision in Georgia that negates what Judge Funk ruled. However, they looked to Georgia's underlying non-bankruptcy law to make that determination. Therefore, this is still based on District and what State you live in.

[FranksMom]

Thank you for posting this- I was just in the process of writing an objection to a claim where they are classifying my vehicle as a 910, when it doesn't meet the criteria for 910 treatment. I have trouble understanding what EXACTLY PMSI is, though... can you indulge me? I do have GAP insurance, extended warranty, etc...

[justbroke]

Thank you for posting this- I was just in the process of writing an objection to a claim where they are classifying my vehicle as a 910, when it doesn't meet the criteria for 910 treatment. I have trouble understanding what EXACTLY PMSI is, though... can you indulge me? I do have GAP insurance, extended warranty, etc...

Think of purchase money as, simply, money used to directly purchase goods.

For example, a loan from the auto dealership (or Bank), is used directly to purchase the car. That makes it a PMSI. Likewise, using your Lowes or Home Depot card, grants the owning Bank (Citigroup or GE Money Bank), a purchase money security interest (PMSI) in each item you buy, until you pay off your balance.

On the contrary, say you went to CitiFinancial and obtained a $10K loan and used things you already purchased, as collateral, then they have a non-PMSI... because the money wasn't used to directly acquire the collateral. (This same thing works for re-financing as well, with some limited exceptions when it's the same Bank/Lender doing the refinancing.)

Makes sense now?

So, some judges believe that GAP insurance, negative equity, and warranty, are not things that are directly tied to the cost of the collateral. They are not necessary for you to purchase the car (collateral). Thus, those portions are non-PMSI. Many car lenders will automatically submit claims with the GAP and Warranty excluded from the secured portion of the claim. And, again, some Districts treat the purchase of GAP insurance, negative equity and warranty costs as part of the purchase price.

The Judges in the majority view (that gap insurance, negative equity, and others are non-PMSI components) agree that those things are not part of the vehicle price. The vehicle price is the amount which allows you to purchase the vehicle. You don't have to purchase GAP insurance or trade in your car (with negative equity) just to buy the car. The dealer/lender allows you to put those things on your car loan, in order to sweeten the deal.

Most of this is determined by underlying non-bankruptcy law and how your State defines purchase money.

[FranksMom]

I had a feeling it was that simple... but didn't want to make any assumptions. Thanks for the well thought out and thoroughly explained answer...

[BigJohn]

Justbroke, I understand that a recently purchased vehicle used as a business vehicle ise not effected by the 910 (2 1/2 years) restriction and can be crammed down. Is that correct?

[FranksMom]

Big John,

Did you read the earlier post that JB posted in this thread towards the top of the page? There was a lot of good information regarding what constitutes a 910 vehicle, or not... I think the deciding factor is how you present your case to the judge. I haven't seen much case law regarding business vehicles being exempt from 910 status, as it's still fairly unchartered territory, but give JB a sec- JB might have found something on it already....

I think a lot of people only take into account the amount of time that they have had the vehicle for when contemplating 910 status, but there's more to it than just timeframe to consider.