Car Repo

[ifucan]

Wife and I file Ch.7 and had our hearing a couple of weeks ago. When we initially filed the petition we were adamant we wanted to keep our car. We were under the impression,as we trusted our attorney,that the car was protected and were told that it was. Well today the bank had it repossessed! I called our attorney and he still claims they had no right to do so. I called the bank and they say it was not listed on the SOI. Now attorney sees that it wasn't, but he knew we wanted to keep it??!! He is calling the bank tomorrow and hopefully we can get it back. We had the hearing as mentioned, but it's postponed to the 23rd due to the lack of some paper work. Now our atty. is contemplating petitioning to have us converted to 13 which he says the bank should release the car. I like our attorney,super nice guy and was recommended highly. BUT, he knew we wanted to keep our car, why was it not listed on the SOI?? I didn't even know what a SOI was until today?? Maybe it was blind faith in our attorney, but we paid him good money we didn't have and trusted his competency. If I don't get my car what recourse do I have if any? I don't want to cause trouble, I just want my car back.

[keepinitreal]

Are you behind on your car payments?

[DebtEnder]

If it was not listed as surrender on your statement then it's a pretty clear case of violation of the automatic stay. I assume they did not have a motion for relief of stay. Your attorney sounds rather out of touch if he failed to list a secured asset in some fashion or another on the SOI.

All assets secured by a loan have 3 option in the post 2005 world, a 4th if you want to risk it.
1. surrender, you give up the property.
2. Redeem, you buy the property outright
3. Reaffirm, re-assume the debt where it stands, or at a negotiable level
4. This one is not officially law anymore, Ride Thru keep making payments but do not hold yourself liable for the debt.

If your attorney did not even bother to list one of those options, then I think he needs to foot the bill for taking these creditors to court for violation and return of the car.

[Bell30656]

Sounds to me like your attorney should, at his expense, attempt to get your car back from the bank and adjust any needed court documents or filings. If he fails that you should consider seeking compensation from his malpractice insurance. Because in this incident I thinknthe bank and repo company were in the right.

[tcreegan]

Hi ifucan,

The statement of intentions is not a hard and fast document...hence the 'intentions' in the name. There are three options:

Reaffirm; checking this box doesn't reaffirm anything, you have to agree to terms w. the lender, sign papers, file w/ court

Redeem; checking this box doesn't redeem anything, you have to meet w/ the lender, pay, and get a lien release

Surrender; checking this box doesn't mean they can come get the car, they have to file a 'motion for relief' from the automatic stay. Judge has to grant the motion. Then they have to obey your state laws on repossession.

If your lawyer is recommending a Ch 13 just to keep a car, it might be time to get a second opinion....

Tom in Colo

[ifucan]

Thanks everybody for solid advice. Tom,"tcreegan", no he's not suggesting conversion to 13 just to save my car. It is primarily to save my house.
He states that by converting to 13 the bank should let go of the car and we can make the payments over the 5 year period. Albeit to include the
repo fee!!!

"Bell" I agree with you. How would I go about getting compensation through his malpractice insurance? I'm trying not to rock the boat to much right now
as I just want to get my car back. Plus I have so much in his hands and honestly can't afford another lawyer. This guy came so highly recommended??!
But I noticed when we filed his paralegal did 95% of the work and talking. He said she was the best cause she had worked for a trustee and knew her stuff.
My wife and I insisted we wanted to keep the car if any way possible. They both assured us we could and they would not repo it. Yeah right!!

"Debtender" I agree with you. Maybe I put to much blind faith into our attorney but I trusted he knew what he was doing. I don't know
the legal jargon, that's why I paid him 3 grand I did not have!! I appreciate what you are saying. I just don't know what to do. He called
me today and said he hopes to have the car out by first of the week. We'll see. Thanks everyone.

[help1234]

Are you past due on the payments???? or did they just come and take it??? Just trying to make sense of why they would just show up and repo.

[ifucan]

Yes, I'm now 3 months behind in payments, sad thing is I only 3 more payments left on the car!!!
But, my attorney told me I was ok and they would not take the vehicle. I used what money I have for food,utilities.
So,in hindsight like an idiot and trusting my atty., I did not make the payments.

[ccsjoe]

I hate to tell you this, but if you're behind on your payments they have every right to take your car. Only step they would have to follow is to file a Motion for Relief from Stay, then, once granted, repo can occur legally. Was the lender even listed on the creditor's matrix? The loan listed anywhere?

[ifucan]

I understand, but call it naive and maybe blind faith, but I trusted my attorney to know what the heck
he was doing. We (wife and I ) insisted we wanted to keep the car. Should we make payments we asked. He
said no it's exempt and there was never any notice from the bank asking to lift any stay of relief. We believed
we were safe.

[ccsjoe]

Well, if you have any of this in writing (you told your attorney you wanted to keep the car, etc) then you have a shot at malpractice, although going that route means you pretty much are severing ties with the attorney. Might be best to wait until discharge for that one, but you certainly seem to have cause.

Additionally, and this will probably be a really dumb question, but, didn't you check your documents prior to signing? Or was it simply you ddn't know what you were looking at?

You should always make payments on any secured assets you intend to keep or intend to do a ride through.

Final question here, but your attorney would have been the one to receive a notice of motion for relief from stay. Are you certain the lender never filed it? If lender did not, you may be able to take action against lender for damages due to violation of stay.

[thinking]

Wife and I file Ch.7 and had our hearing a couple of weeks ago. When we initially filed the petition we were adamant we wanted to keep our car. We were under the impression,as we trusted our attorney,that the car was protected and were told that it was. Well today the bank had it repossessed! I called our attorney and he still claims they had no right to do so. I called the bank and they say it was not listed on the SOI. Now attorney sees that it wasn't, but he knew we wanted to keep it??!! He is calling the bank tomorrow and hopefully we can get it back. We had the hearing as mentioned, but it's postponed to the 23rd due to the lack of some paper work. Now our atty. is contemplating petitioning to have us converted to 13 which he says the bank should release the car. I like our attorney,super nice guy and was recommended highly. BUT, he knew we wanted to keep our car, why was it not listed on the SOI?? I didn't even know what a SOI was until today?? Maybe it was blind faith in our attorney, but we paid him good money we didn't have and trusted his competency. If I don't get my car what recourse do I have if any? I don't want to cause trouble, I just want my car back.

So sorry to hear about your predicament, ifucan. Unfortunately, I'm seeing lots of this (in BOLD) regarding our attorneys/law firms around the forum... They hate u questioning things..etc..and keep teling u u paid them good money, pay them to worry-not u, in our best interests...blah, blah, blah,...in turn u STILL have to babysit/mothered them! Urrghhhhhh! Sorry...ranting. Wish u lots of luck n things work out for you!

[Protected]

I don't understand why the lender took your car during the automatic stay. Were they listed on the creditor's matrix. If so, did they file to lift the stay? If your attorney did not list them on the matrix or the SOI, then lender did not have notice of your bankruptcy. That being said, if it is not too late, you have some options to work this out.

Depending on your state you have x amount of days to redeem or reinstate the vehicle contract before it is sold. So you will need to get down to the tow yard and pay off the balance, otherwise it will be sold, or work out a deal with the lender to reinstate the contract and agree to a reaffirmation agreeement.

[debee]

If the car wasn't listed on the SOI and if the debtor didn't sign a reaffirmation agreement & file it prior to discharge, then the automatic stay is lifted. The lender is then free to repo the car according to the laws of the state.

The bankruptcy code sections that spell this out are: 521 (a)(b), 521 (d) and 362(h).

There's TONS of case law that addresses how this plays out and why they can legally repo "personal property" for these reasons alone, even if the debtor is up-to-date on payments. (4th circuit court of appeals, repo case -- In re: Jones)

I copied this from the case mentioned above: "The requirement under § 46A-2-106 to inform a debtor of his right to cure default is necessarily based on the premise that the default can be cured. Here, however, both parties agree that the event that triggered default, the filing of a bankruptcy petition, cannot be cured. Therefore, we affirm the district court's holding that DaimlerChrysler was not required to give the Joneses notice of default and right to cure before repossessing the vehicle."

To read the case: http://caselaw.findlaw.com/us-4th-circuit/1497058.html

[Chowder]

If your lawyer is recommending a Ch 13 just to keep a car, it might be time to get a second opinion....

LOL!!! Yes, and run, don't walk.