Many people who file for bankruptcy and own a car are allowed to keep it during and after their case, especially if it is used for getting to and from work.
If you are behind on car payments, you may be able to use bankruptcy laws to keep your vehicle in your possession.
Both types of personal bankruptcy address cars, car loans and vehicles you own outright:
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Chapter 7 bankruptcy is designed to help eliminate unsecured debts such as credit cards debt or medical debt, but may provide protection for secured debts such as cars.
If you own your car outright, and owe no debts on it, then your car may be fully protected from repossession or forced sale due to Chapter 7 exemptions.
One important aspect when filing bankruptcy is whether you have a clear title to your car. If you have pledged your vehicle as security for a debt, or if you are financing or leasing a vehicle, you likely have three options for secured car loans when you file Chapter 7.
1. Reaffirm: A reaffirmation agreement is a contract between you and the car creditor in which you agree to pay the balance owed on your car note, despite the bankruptcy filing.
You continue to make payments and the creditor promises that, as long as payments are made, they will not repossess or take back the property.
Reaffirmed debts are not discharged and the debt survives the bankruptcy.
If you do not make your car payments after you reaffirm the car loan, the car lender can repossess the car and sue you for the deficiency balance.
After the finance company repossesses the car, they will sell the car at the auto auction. Usually the finance company does not get enough money from the auction to pay off your loan.This shortfall is called a "deficiency" and you would still be legally obligated to pay the creditor the deficiency balance.
As you can see, the decision to reaffirm your car loan is a serious financial matter.
Reaffirmation agreements are strictly voluntary. You are not required by the Bankruptcy Code or other state or federal law to reaffirm your car loan. Before entering into such an agreement, you will want to speak to a bankruptcy attorney to make sure that the reaffirmation is in your best interest.
2. Redeem: In Chapter 7, you have the right to purchase or redeem your car from the creditor by making a lump sum payment equal to the car's fair market value.
The U.S. Bankruptcy Code provides that you must pay the creditor the replacement retail cost of the car. The balance of the debt will be discharged.
For example, assume you own a car worth $5000.00, but owe the finance company $10,000.00. In this circumstance, you could redeem the vehicle by paying the creditor $5000.00 and the remaining balance will be discharged in your bankruptcy.
A local bankruptcy lawyer can advise you on the benefits of redeeming your financed car and identifying lenders that will provide the funds for your vehicle redemption.
3. Surrender: If you cannot afford the monthly payments on your car loan or if you determine that you owe more than the car is worth, you can unload the car and the debt in your Chapter 7 bankruptcy by surrendering the vehicle to the creditor.
If you are leasing your car when you file Chapter 7 bankruptcy, you can choose to either continue making the monthly lease payments or surrender the car back to the creditor.
If you surrender the leased car, any obligation to repay debt will be eliminated in your Chapter 7 bankruptcy case.
Chapter 13 bankruptcy is powerful tool to protect your car from repossession.
If you have fallen behind on your car payments, you may be able to file a Chapter 13 bankruptcy to stop the repossession of your vehicle. The amount you have to pay for your car depends upon when you bought your car.
If you own your car outright, and owe no debts on it, then your car should be fully protected in Chapter 13.
910 Claims: If you bought your vehicle within 910 days of filing your bankruptcy case, you must repay the entire car loan.
The good news is that the interest rate you pay on your car loan may be significantly reduced.
For example, if you owed $10,000 on a car loan whose blue book value was only $5000, you would be required to pay the entire $10,000 balance if the car was purchased less than 30 months, or 910 days, of filing. In short, debtors who want to keep their cars must pay the full loan amount rather than "cram down" the debt to the value of the car.
Cram Down: If you bought your car more than 910 days before you file bankruptcy, you will only have to repay an amount equal to the present value of the car.
For example, if you owed $5000 on a car that is worth only $2500, upon filing Chapter 13 you would be required to repay the finance company only $2500 over the three-to-five year term of your Chapter 13 repayment plan.
Your car lease usually cannot be paid through the Chapter 13 bankruptcy repayment plan that you devise with your bankruptcy attorney.
You can "assume" the lease and continue making the monthly payments. You can also "reject" the lease and return the car to the creditor.
The creditor will sell the leased vehicle, apply the sale proceeds to your lease balance and then file a claim in your Chapter 13 bankruptcy case for the lease deficiency.
This deficiency is an unsecured, non-priority claim, which means you will likely only pay that creditor pennies on the dollar.
If you have questions about how your car will be affected if you file bankruptcy, talk with one of our sponsoring lawyers.
Fill out the form on this page to talk with a local bankruptcy attorney. Bankruptcy laws can be complex and each person's financial situation is unique. If you're worried about losing your vehicle, home or other assets, be sure to get the facts from a legal professional.
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The above summary of bankruptcy law is by no means all-inclusive and is not intended to serve as legal advice. Laws may have changed since our last update. For the latest information on bankruptcy laws, speak to a local bankruptcy lawyer in your state.
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