Ch. 7 filed/Car repossessed/Stay violated?

[daedalus]

I think my car was just repossessed! We filed Ch. 7 on 6/11/09, and on the original statement of intentions, we stated that we wished to reaffirm. We then reconsidered and had our attorney change it to surrender last week. We had not yet spoken to the creditor (USAA) to make arrangements to surrender, but I thought they had to file a Motion to Lift Stay if they wanted to repossess the car. Did they violate the automatic stay? If so, what should we do about it? Has anyone else had this happen to them?

[bkmaggster]

It sounds as if they violated the stay. I want to give my car back, but am waiting for the stay to be lifted so that I can. Have you called your lawyer?

[daedalus]

I sent her an email tonight. I expect to hear from her tomorrow. I just don't like the idea of them coming to take it without talking to me. Also, the tow truck looks like it left a large oil stain on my driveway. I'm sure the tow company will try and charge me a "storage fee".

[bkmaggster]

My understanding is, if they violated the stay, they will be the ones who get charged!

[bkmaggster]

One other idea - call the police non-emergency number and make sure your car was repo'd and not stolen. The repo company has to notify the police first.

[daedalus]

Good idea. I hadn't thought of that.

[BKinVirginia]

I am curious to see how this turns out. I am giving up my car as well and I hope they dont come around a take it before they are supposed to. Let us know what is up with this.

[daedalus]

Update

So my attorney emailed this morning and said that they are most definitely in violation of the stay. Even if you say surrender on the SOI, the bank has to file a Motion to Lift before they can take it.

I called the bank this morning about the car and of course they said they weren't aware of the BK. Then someone in their BK dept. confirmed that it was indeed filed. They apologized profusely, and called the repo company to release the car back to me. Well, I get there to pick up the car, and they have this release for me to sign releasing the bank from any and all liability, claims, actions, etc of any nature...really broad language. I told the repo people that I couldn't sign off on that without speaking to attorney first. Was told I couldn't even look at the car and I needed to leave the lot. I called and left a VM for my attorney to read her the release form, but I have not yet heard back.

Anyway, the bank says that they didn't create that form, their middle-man that does the repos did, and they're not sure if the language can be changed. I told them that they need to get this handled, because I'm not signing away any of my rights and claims against them. I also told them they are still in violation of the stay, because the repo company won't give me the car without signing it. Apparently, they are on the phone with the repo agency to try and fix this.

For any of you legal eagles out there, my question is this:

As far as the actual repo company is concerned, it seems to me the minute they received the order from the bank to give the car back and I showed up to retrieve it, when they decided not to release it unless I signed, they are now holding my property illegally. Is theft too strong a word? What do you think?

[griswald]

Nice update and good job on not signing the paper.. GL2U

[LuciluS]

The Bank has Violated the Stay by repossessing your car. It doesn't matter if there is a middle man (the repo guy). It's the Bank's responsiblity to return the car to the exact location where the removal of the vehicle took place.

Your Attorney should call the Bank first thing Monday morning (dang holiday) & demand the Bank return the vehicle to exact location is XXXX number of hours or he/she will file a Sanctions in Court. I wouldn't be spending my time making the phone calls and going to Egypt to retrieve the vehicle. You did Nothing Wrong. Let your Attorney 'put the monkey on the Bank's back'. They paid the middleman for the retrieval of the vehicle and let them pay that middleman to return it.

Chitty Arse Banks

[BKinVirginia]

Surprising too, USAA is one of the better banks out there.

[ela805]

One other idea - call the police non-emergency number and make sure your car was repo'd and not stolen. The repo company has to notify the police first.

They DIDN'T contact the police station when my car was repoed so sometimes that doesn't work unfortunately. Glad you got to the bottom of it. Hope they get your vehicle back to you soon. Jerks.

[kenshirley]

One other idea - call the police non-emergency number and make sure your car was repo'd and not stolen. The repo company has to notify the police first.

Not true in all states.

[kenshirley]

So my attorney emailed this morning and said that they are most definitely in violation of the stay. Even if you say surrender on the SOI, the bank has to file a Motion to Lift before they can take it.

I called the bank this morning about the car and of course they said they weren't aware of the BK. Then someone in their BK dept. confirmed that it was indeed filed. They apologized profusely, and called the repo company to release the car back to me. Well, I get there to pick up the car, and they have this release for me to sign releasing the bank from any and all liability, claims, actions, etc of any nature...really broad language. I told the repo people that I couldn't sign off on that without speaking to attorney first. Was told I couldn't even look at the car and I needed to leave the lot. I called and left a VM for my attorney to read her the release form, but I have not yet heard back.

Anyway, the bank says that they didn't create that form, their middle-man that does the repos did, and they're not sure if the language can be changed. I told them that they need to get this handled, because I'm not signing away any of my rights and claims against them. I also told them they are still in violation of the stay, because the repo company won't give me the car without signing it. Apparently, they are on the phone with the repo agency to try and fix this.

For any of you legal eagles out there, my question is this:

As far as the actual repo company is concerned, it seems to me the minute they received the order from the bank to give the car back and I showed up to retrieve it, when they decided not to release it unless I signed, they are now holding my property illegally. Is theft too strong a word? What do you think?

The repo people release nothing until they are paid. They have a hold harmless contract with USAA and USAA has to make arrangement or warranty payment before anyone, and I mean anyone gets the security for payment.
So until USAA gets the car released, which they know well is their responsibility, they are the ones creating a the problem. That hold harmless document protects the agent that took the car on their behalf.

My father was a dealer and I am quite familiar with how repos work.

[daedalus]

Latest email from attorney says that I was right to not sign anything. Plans on filing a motion to show cause as to why they should not be held in contempt next week.

The latest word from USAA is that I can just sign the form and write on it anything I object to. Not going to happen. They say it is the standard form that their repo contractor uses. Of course, this is not a standard repo, this is an illegal repo in direct violation of the bankruptcy court. If they had just returned it today, no strings attached, I would not be pursuing this. They are making it worse on themselves and I hope the judge let's them have it. USAA acts as if their hands are tied - like they can't just return it without me signing something. Unbelievable!