So, an unexpected twst!

[sh9730]

As some of you who have been reading my other posts and responses to posts may know I just reaffirmed my leased vehicle as part of my CH7. I signed the papers and my attorney also signed, and he electronically filed the agreement.

I had been behind on my payments, but the agreement spelled out that as long as I was current before discharge the agreement would be valid. After I talked to the lender and felt as comfortable as I could that they would honor a stay and pay agreement, even if the court never actually APPROVED the reaffirmation, I went ahead and wrote a check for the arrears (1800+ dollars!).

TODAY while checking pacer I see that my trustee has filed a motion to KEEP THE STAY IN PLACE, while he investigates whether the lien on the vehicle is perfected. I assume he filed this because we are coming up on the 30 days from my 341 and he needs extra time to determine whether to abandon the asset or not. But maybe my filing of the reaff is what sparked him, and he didnt want the court to approve that reaff until he has abandoned the property.

SO, the first BIG problem was my check! I mean if the trustee takes this car I dont think the lender was going to return my money! Luckilly I was able to get a stop payment on the check. At least I think I was...it is showing as "pending" for withdrawal today....and I stopped payment online today which is the same bank business day. I called my bank afterwards and the item does show a stop payment and that it should not be cashed. But until I see it on my statement online (which will mean TUESDAY now most likely), I wont believe it.

Now, back to the lien thing...this doesnt effect my discharge at all...and (as I have written in other posts), I was actually EXPECTING the possibility the trustee would be investigating a lien and maybe keeping a car for the estate, but I was pretty sure it was my OTHER car. That car is a purchase finance, and I had intended to surrender anyway, so didnt matter to me who it went to, other than fact that until the trustee decided I had to keep it insured. I thought he actually may have a case on this other car since they did in fact take extra long to get the vehicle registered with DMV, which is where the lien is recorded in my state.

But on this car, the lease, they registered it quickly and I didnt notice any problem. So this was a surprise. When I called the lender to tell them I stopped payment on the check (I explained that I just cant bring it current if I will not get to keep the property), they started telling me that with a lease the lien process is different since I really dont "own" the vehicle. Not my issue I told them...I WANT to keep the car...but cant pay them until Im comfortable as possible that its all settled.

Also, the trustee only filed this motion to keep the stay in place for the LEASED car, not on the other one (at least as of yet)..which is wierd, unless what prompted this is my atty filing the reaff agreement. Maybe he was intending to check into BOTH liens all along, and needs more time to do so (although its been a month!) and since my SOI on this one was to reaff (assume actually but whatever), and the 30 days was approaching, and we had actually filed the reaff, he felt he needed to do this, whereas the other car has always been slated for surrender.

OR, maybe this whole thing was a mistake by the attorney who filed it on behalf of the trustee (it wasnt the trustee himself who filed the motion) and they meant to file the motion on the OTHER car, but picked the wrong car?

Who knows.....Im just hoping my check doesnt clear, and then later the trustee abandons this car, or the lender wins their motion so I can reaffirm as planned.

Wow - this turned out longer than I thought!

[justbroke]

I have no clue why a Trustee would go after a leased vehicle. You don't have title to the vehicle at all. It reads like an episode from the Twilight Zone. I just may keep this particular case in my repertoire of the odd Trustees. This would be the equivalent of the Trustee going after an apartment that you're leasing! (In some ways, for commercial property, the Trustee might make money but sub-letting certain types of buildings. Executory contracts are an interesting part of bankruptcy and a Trustee "could" make money from some of these contracts/lease.)

The other theory would be that the creditor didn't do the title correctly. In any case, unless the title is actually in the debtor's name, it's a non-starter.

[sh9730]

Justbroke,

Well, that seemed to be what the lender was telling me when I called to tell them about the stop payment on the check (I wanted to be above board with them about that since I had told them it was on the way etc...and in the end I want to assume the lease)....that leases are different and title shouldnt be an issue.

It could be just an error on the paperwork like I said....I fully expected a title review on my other car for the reasons I outlined...especially since he did NOT enter the motion for the other car?

But in any case for now Im just hoping I caught the check in time! I dont want to give them money while this is being straightened out....as its probably gone forever if I dont get the car in the end.

I ll update as I get more information.

[sh9730]

Well, little bit good news....my bank just started updating online in real time lately...and the check was stopped! Balance already reinstated in my account etc. So, at least I dont need to worry about losing that cash if it doesnt work out right. But did cost me 25.00!

[justbroke]

You can't lose the cash! Since it is "post-petition" money, you could compel the Trustee to turnover that amount from the proceeds of the liquidation before paying themselves or the unsecured creditors. The Estate -- and Trustee as executor -- is not entitled to post-petition money. You'd become an administrative claim superior to all others.

This is still bothering me though!

[sh9730]

Justbroke,

Maybe, but I was thinking it might have been "voluntary payment" or something since my lender never pursued collection of it (other than sending the reaff agreement I indicated I wanted in my SOI), so they would have a valid claim on it. Thankfully, I dont have to deal with it. Now I just wait and see what the trustee does.

I wish he WOULD do this and hurry up to decide on the OTHER car, I WANT to turn it in....and the insurance comes due again soon...

[sh9730]

OK - just an update for anyone who cares - I ll probably update a couple of threads with this information since I was dumb and there is some overlap on a few of them.

I was contacted by an attorney's office associated with my Trustee. They were looking for information on one of the vehicles.

It turns out they HAD subpeonad (sp) the Motor Vehicle department on both cars in an effort to perfect the lien(s). They rec'd a response on the PURCHASED vehicle, and although the lien was in fact "untimely perfected', BUT BUT BUT, it did not fall within 90 days of my BK filing so it was not within the "preference period" and this attorney will be suggesting that the Trustee abandon this asset. Although I still dont understand this "preference period" completely yet, this is a good thing as this is the vehicle I have been trying to surrender, and now that they are done with it, I can get the lender to finally take it back!

As for the LEASED vehicle, they never got a response from Motor Vehicles, hence they were contacting me to get information on where I purchased it so they could investigate that way. I of course provided the information, but as a little side thing I mentioned I was surprised they were trying to check on this car since it was a lease. She emailed me right back and said she was UNAWARE it was a lease, and would not be pursuing it unless the Trustee directed her to do so (which she didnt think was likely). She is fairly sure that once she gets approval from the Trustee, she will withdraw the Motion to Maintain Stay, and then my reaff (assumption) agreement can move forward as normal, although the judge probably wont APPROVE the reaff anyway...but at least then I can do the ride through since my lender has said as long as I ve made every effort to reaff, they will let me keep the car.

SO, one more thing checked off the list I hope!

[justbroke]

Well, at least someone in the Trustee's office has come to their senses!