Car was just repoed...but I am in a chapter 13...please help!!

[austinsmom]

Hello everyone,


I have filed for chapter 13 on july 12,2011....and my 341 meeting is set for 9/1/11...however VW Credit just repoed my jetta...what can I do??? I called VW Credit and they said they were not aware of the Bankruptcy.

[Freddy03]

Are you behind in the payments?

[austinsmom]

You mean behind in the chapter 13 payments? Not at all the first payment is due 8/28/11 and has already been mailed out.

[Freddy03]

You mean behind in the chapter 13 payments? Not at all the first payment is due 8/28/11 and has already been mailed out.

I'm sorry I meant behind on your car payment? Is it included in your plan? Are you sure the company was listed in your BK?

[austinsmom]

Hi...yes I am behind in car payments...and yes it listed in both the section D and also the chapter 13 payment plan. I have the copies of the whole bankruptcy petition right here.

[IamOld]

austinsmom - I think the question Freddy is getting at is this - did you make your first post petition payment to VW? And/or is it included in your ch 13 payment?

First thing you NEED to do is call your ATTY IMMEDIATELY. If VW was included on the petition, this is a MASSIVE stay violation, and you will get the car back plus possibly some $$ if your atty is aggressive enough!!

[austinsmom]

Hi IamOld,

The first payment is included in the Ch 13 Plan. I filed the ch 13 pro-se. Do you know what I can file? I just called VW credit and they claim they did know of the BK filling...and they are not willing to give the car back.

[IamOld]

Oh man - I wouldn't really even know...this is something where a lawyer is needed...I'm sure others will jump in, like Des, who can give you step by step directions...but IF they are on the mailing matrix, that means they were "served." This could involve an Adversary Proceeding against VW - see, here a lawyer would call them and essentially beat them up on the phone...which you can do also, and tell them a) you were "served" b) if you don't have your car back within 24 hours you will file an Adversary Proceeding with the bk court, and get damages from them, etc.

[justbroke]

The first payment is included in the Ch 13 Plan. I filed the ch 13 pro-se. Do you know what I can file? I just called VW credit and they claim they did know of the BK filling...and they are not willing to give the car back.

First, you need to write a very professional letter to their attorney or bankruptcy department. You need to weed through the various departments and find the CORRECT department to send that letter to (bankruptcy department or attorney). You need to FAX this and send this certified mail. I would also, immediately file a Motion To Compel Turnover and for Entry of Order to Show Cause specifying that they repossessed a vehicle without a Relief From Stay motion.

Additionally, the question is... did you file a Statement of Intentions with the court, and better yet... did you serve it on VW Credit?

I would request an emergency hearing on the matter after filing the Motion. You would call your Case Manager after the paperwork arrives at the courthouse and ask if you can schedule an emergency hearing on the matter. You need to state, with specificity, that they repossessed the car in violation of 11 USC 362 and that you are seeking sanctions under 11 USC 362(k).

[austinsmom]

HI...Thank you!!!...Do you know where I can find a sample of this motion so I know I do it right?

[BKAttyMI]

Yikes, Austin, you really need an attorney to handle this for you. Usually a violation like this won't happen so long after filing. They should have received notice weeks ago, which leads me to suspect possibly something was wrong with the initial filing. They would also probably take a call from a lawyer much more seriously than a call from yet another angry customer with a repo'd car and an excuse for why they should give it back.

A very very simple chapter 13 may be able to be handled pro se by a very knowledgable debtor, but once complications come up, it's time to bring in an expert. I'm sorry I do not know where you could find any "sample" motions for your jurisdiction, motion rules, etc. can vary greatly from area to area.

[justbroke]

As the Michigan BK Attorney eludes to, I now believe that you are now in a tough place to be for a pro se debtor. I would first try to understand what the two Motions that I mentioned are for (Motion to Compel and Motion for Entry of Order to Show Cause) and then learn the procedure for your specific District. Your District may or may not have templates for these. You can only know this by checking your District's web site and/or calling your Case Manager.

Additionally, you should already be on a first name basis with your Case Manager. You will need to know procedurally how to advance such motions. Time is of the essence.

I also concur with BKAttyMI that there's something wrong with the service of the intentions or Plan since VW Credit is aware of your bankruptcy. (I would even think that they should have had "constructive" notice via the BNC or one of the CRAs by subscription.) Very strange that they don't know that your vehicle is IN PLAN. Hopefully, you didn't use a payment address to notify them since most of that goes to a lockbox and nothing goes there but payments. (I also believe that they are in violation since the stay protects the car through day 45 without any intentions filed.)

How you present yourself when calling is very important. You would never talk to a customer service rep (CSR) about bankruptcy. You always ask for their bankruptcy department or the office of chief counsel. CSRs seldom know anything about the process and are there to collect payments.

This is not insurmountable, but it requires papers to be filed and notifications to be made and you will probably need to have a hearing on the matter.

Did you ever serve the Plan on VW Credit? I didn't read that you served the Statement of Intentions on VW Credit either.

[despritfreya]

Austin,

Regardless of notice the repossession was a violation of the stay and you have the absolute right to demand the turnover of the vehicle. The lender will require proof of full coverage insurance before it will release it.

Either contact VW’s bk department (when you call you politely ask for the bk department) and demand the immediate return of the vehicle or have an attorney do it.

Assuming you have insurance, the longer VW hold’s the vehicle (exercising control over property of the estate) the more willful the violation and, depending upon the judge, the greater the sanction when and if you file a Complaint for Turnover of Property of the Estate.

Edt. In some jurisdictions you can use motion practice (quicker and easier than filing an Adv. Proceeding). It would be called a Motion to Compel Turnover of Property of the Estate.

Des.