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Can a credit union take a car before discharge?

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  • Can a credit union take a car before discharge?

    My wife filed Ch. 7 in FL and was told at the initial lawyer meeting her car wouldn't be taken until after discharge so based on that information she decided not to re-affirm it, give it up and just buy a new car after discharge.
    Well a month after going to the 341 meeting and still waiting for discharge she received a call from the woman who works the desk at the lawyers office and says the credit union wants to come get the car. Wife says wait a minute she thought they couldn't take it before discharge. She says they can take it anytime they want since she didn't re-affirm it. So now we received contradicted information. Guess lawyers are no better then others trying to con people into getting their money by saying whatever.
    I honestly thought they couldn't take it until discharge either.......unless they filed a motion with the court to collect it. No idea if that's what they did.
    What's true here?

  • #2
    Yes. If you don't reaffirm and you checked "surrender" on the Statement of Financial Intentions (SoFI), then you must take actions to allow that to happen. Specifically, the duties of the debtor are found in section 521 of the code and read "within 30 days after the first date set for the [341 Meeting].. [the debtor must] perform his intention with respect to such property, as specified [in the Statement of Intentions]".

    Now, there is some technicality to some of this. Some creditors will file a Motion for Relief From Automatic Stay (RFS) when they read that the SOFI indicates surrender (or even if you're behind in payments). When this is granted, there is no automatic stay. Some also opine that you can't impede a bank with regard to your SOFI.

    I don't know whether the CU was granted leave from the automatic stay (they filed and had an RFS granted), or if your District automatically dissolves the stay for things on your SOFI indicating surrender.

    I can say this, sort of in the attorney's defense, creditors "usually" won't touch property until the discharge date just to make sure they are not violating the automatic stay. Most courts opined that the automatic stay dissolves, automatically, after the 30 days after the 341 Meeting. So that's probably why they waited until day 31.

    Credit Unions are particularly ruthless in this regard. Almost every other auto loan lender will wait for the stay to dissolve at discharge or seek the RFS. This is just out of an abundance of caution. Just as I use the word "typically" and "usually" any attorney would also use those words when describing the process when you put surrender on your statement of intentions.

    I'm not your attorney and I don't know the implications of not "voluntarily" surrendering the property, but they may, in fact, not be able to perform a true repossession. You have to talk to your attorney that understands your local district.
    Last edited by justbroke; 06-11-2017, 10:23 PM.
    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog


    I am not an attorney. Any advice provided is not legal advice.

    Comment


    • beetlejuice
      beetlejuice commented
      Editing a comment
      Thanks for the reply and insight. Appreciate it.

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