Auto Repossession Before Bankruptcy

The other day I received a call where an individual asked me whether filing bankruptcy would allow for a car that has been repossessed to be returned. Although my response probably failed to satisfy the caller (the usual attorney response of it depends), here is what is required in California (at least how the courts have viewed the law).

Background

In most vehicle contracts the lender retains a right to repossess a vehicle if the borrower fails to make the scheduled payments. With many contracts, this repossession can be done outside of any court proceedings.

However, once an individual files for bankruptcy many of the rules change. For one, an automatic stay is implemented. This stay prevents most actions against the debtor (individual that files for bankruptcy). Specifically, the automatic stay strictly prohibits any lawsuit or repossession against a debtor that is delinquent on car loan payments. Any repossession after a bankruptcy petition is filed constitutes a violation of the automatic stay, with the repossession void and of no effect. In that case, the lender would be immediately required to return the vehicle to the debtor.

Effect of Bankruptcy on Prepetition Repossession

Section 542 of the Bankruptcy Code requires that entities in possession of “property of the bankruptcy estate” are generally required to turn the property over to either the trustee (in Chapter 7) or the debtor (in Chapter 13). This big sticking point then for this turnover requirement is determining what is “property of the estate.”

Section 541 of the Bankruptcy Code defines property of the estate. This definition includes “all legal or equitable interests of the debtor in possession as of the commencement of the case.” Basically this definition states that whatever rights the debtor has at the commencement of the case continue in bankruptcy. As for the vehicle that has been repossessed, the court has to discover what rights a debtor had when the bankruptcy case was filed.

These rights are determine by state law (California State law). Under the California Civil Code (section 2983.2), a debtor has the right to redeem a repossessed vehicle up until the date the car is sold by the repossessing lender.

Two recent cases have come to different conclusions as to whether turnover of the vehicle is required upon the filing of the bankruptcy petition. First, in a case from the Southern District of California (In re: Fitch, 1998), the bankruptcy court held that while a repossessed car is property of the estate, the right to possess the car was transferred to the lender prior to the filing of the bankruptcy petition. The court interpreted the statutes to mean that the automatic stay freezes the positions of the debtor and creditors. Thus, the lender had the right to maintain possession. The court did state that a vehicle could be returned to a debtor upon the debtor’s giving of adequate protection. In most cases adequate protection means the establishing of proof of insurance and proof that the debtor will be able to make the regular payments on the car.

In the Northern District of California (In re: Cortez, 2010), the Bankruptcy Court interpreted the Bankruptcy Code, and specifically the section on the automatic stay, to mean that a “knowing retention of estate property violates… the automatic stay.” Because a debtor has the right to redeem until the date of a sale by the lender, the vehicle remains part of the estate, and subject to turnover. In this case, the debtor provided adequate protection to the secured creditor. However, the court seemed to say that it was not necessary for turnover.

What to do?

If your car has been repossessed, and you want to make sure you retain possession, bankruptcy may be a solution if you are not able to pay the balance before a lender’s sale. However, while the Northern District seemed to state that adequate assurance is not necessary for turnover, it will ultimately be necessary to avoid a lender’s motion for relief from the automatic stay. Be prepared to show (a) insurance, (b) regular and sufficient income, and (c) an ability to pay for the vehicle.

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Student Car Loans Now Made Easy

Every young American student who is eligible for a valid driving license feels the need to own his or her own car. And in a way there need is justified, between college tuitions, home and part time jobs they are the ones who need an automobile the most. Most of the banks and credit unions are very wary of providing college student car loans, mainly because students have low income capacity. Even if they agree they may insist on a guarantor or a co signor for your loan, which may not be an option for everyone.

Online car loans for college going students

However in this modern era the advent of numerous online car finance companies have come as a boon for students. They have specially designed car loans for students with no credit. And these online car financing companies are not in a limited number. A few clicks on the internet search engines and you will be able to see a plethora websites that deals in online car financing for college students. Hence do not settle for auto finance deal until you have compared loan terms for your category in these sites. Some of the websites also functions as brokers allowing you to compare deals offered to you by various lending companies.

Car loans are usually fully secured loans, where in the car it is held as security by the lending organization. This is until you have paid your last due installment. So that if you default on your payments and are not able to pay back these loans then they will take possession of the car. Student car loans are no credit type financing as normally most students would not have taken part in credit transactions that are tracked by credit rating agencies. Hence it is advisable that they take the repayment of these loans seriously. This loan can be a stepping stone in building a secure financial future by starting to create a new positive credit history. But this can only be possible if they pay their installments on time without defaulting. If they do not, they face the ignominy of starting their credit history on a very negative note, where in future lenders would be very weary to give you any sort of financing services.

So students need to make an honest introspection and evaluation of kind of vehicle they need and can afford. Because there are other costs too involved with owning a car. Apart from the principal and the interest amount the student also has to pay for insurance; gas (it is advisable to choose the most fuel efficient one among the available options) and other maintenance cost (like servicing charges, oil change cost etc.). So be prudent and make a smart decision.

There are in point of fact some good advantages of college student car loans. Firstly if you pay off the car loan payments on time it will replicate positively on your credit score ratings. Credit agencies all the time look to see if you have taken out loans over the itinerary of your credit history. It is not easy for university students to get a student car loans with tight finances, but now many online lenders like www.carmoneyfast.com are offering student car financing at very affordable interest rate. Now students can get pre approved financing for car despite bad credit.

Scam Artists Want To Finance Your Next Car!

If you have shopped online for car loans recently you may have found hundreds of tempting offers. Many offers promise you guaranteed financing regardless of credit history, bankruptcy, divorce, and the end of the world … (well maybe we exaggerated that one a bit), but you get the idea.

Presently, over 100,000 people per day apply online to receive car loans from companies that promise financing with bad credit or no credit. What you need to be aware of is that not all of the websites out there are legitimate. If you are unfamiliar with the term, “Phishing Website” you should Google it today and learn what it is. You could be giving your information to someone that wants to steal your identity!

You might think, “Well if I have bad credit, then who cares if they steal it, won’t do any good for them anyhow.” That is not entirely accurate. Once they determine that your credit will not work, maybe your medical information will. Medical identity theft is rapidly growing due to increased health care costs and outrageous insurance premiums.

We recently heard of a victim who after applying for several car loans with no luck, and no return calls, she began receiving collection notices from a cancer treatment clinic in California. Since she lives in Maine, and is physically unable to travel, she got concerned.

Several months later, and several thousand dollars in attorney’s fees she found out that her social security number, income information, birth date, and other pertinent information was harvested from the internet and sold to scam artists that know how to generate medical insurance cards good enough to pass the “adequate” hospital screening process. All of this information harvesting was tracked to a website offering “guaranteed auto financing regardless of credit or income history”.

The worst part is her blood type was changed, because the person receiving cancer treatments on her information was type B and she was type A. Had she not caught this before going in for emergency treatment, she might have been pumped full of the wrong blood!

The moral of the story is, if you do not have the best credit and you want to get financing for a car or any other item, do some digging first to check on the credibility of the source you are working with. Your best bet will most likely be finding a dealership or local financing company that works with people to reestablish credit; or has other programs available that will fit your situation.