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repossession after reaffirmation denied by court

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  • repossession after reaffirmation denied by court

    How soon can a lender repossess a vehicle after you attempted to reaffirm, but was denied by the court at the reaffirmation hearing?

    Thank you

  • #2
    It is my understanding that they cannot as long as you are current on payments and maintain insurance. In other words they cannot use the "Bankruptcy default clause" contained in most contracts to repossess. If you violate other aspects of the contract such as not paying or maintaining insurance they can. Someone correct me if I am wrong.

    Comment


    • #3
      They can repo. The bankruptcy law changes in 2005 made it possible. They can take it by the 45th day after filing (or thereabouts, I forget). But just because the reaffirmation was denied doesn't mean the lender will want the car. I would call them and see if they will let you do a "stay and pay". Most will.

      edit to add: In some cases, when the reaffirmation was denied the courts have ruled that the lender cannot repo because the debtor has done everything they could have done to reaffirm. If the judge stipulated something like that in your case, you're safe. I think there is a district where you're safe so long as you tried, but I can't remember which one. East side of the country is all I recall.
      Last edited by debee; 04-26-2011, 04:33 PM.
      There are two secrets for success in life:
      1.) Never tell everything you know.

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      • #4
        Here is an passage regarding rulings on this matter. If you are going to offer advice please make sure you know what you are talking about. People freak out when you scare them.

        The new strategy involves a request to deny rather than approve the agreement in an effort to defeat the certification requirement and avoid the ipso facto loan default. This reaffirmation revolution appears to have spawned from a decision in the Western District of Missouri, In re Riggs, 2006 WL 2990218 (Bankr. W.D. Mo. Oct. 12, 2006), that refused to permit repossession of a vehicle merely upon a claimed default under an ipso facto clause in the loan document, and was nurtured in the Bankruptcy Court for the Eastern District of Virginia in the case of In re Husain, 364 BR 211 (B.E.D Va 2007), which followed Riggs and required an actual default such as lack of payment or lack of insurance coverage.

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        • #5
          There have been many cases of backdoor ride-through besides Riggs and Husain. Two that I know off the top of my head that were actually in the 9th circuit like the OP (Bower and Moustafi), but just because those people got backdoor ride-throughs, doesn't mean OP did/will.

          ps. I've read Riggs, HUsain, Bower, Moustafi, Chim, Rowe, Steinhaus, Norton, Anderson, Craker, Faught, McFall, Ruona, Quintero, Stevens, etc., etc., etc., and many more decisions (published and unpublished) on reaffirmations of both personal and real property. So I do know what I'm talking about.

          edit to add: http://www.bkforum.com/showthread.ph...ffirm...Yippee!!!!
          Last edited by debee; 04-26-2011, 04:51 PM.
          There are two secrets for success in life:
          1.) Never tell everything you know.

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          • #6
            I checked the time-frame and it is 45 days from the 341. You can read it here in 11 USC 521 (a)(6): http://www.law.cornell.edu/uscode/us...1----000-.html
            There are two secrets for success in life:
            1.) Never tell everything you know.

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            • #7
              Read the original post. This is NOT a back-door ride through this is a DENIED reaffirmation agreement. Once again if you do not know what you are talking about give don't bad advice.

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              • #8
                Originally posted by malf1204 View Post
                Read the original post. This is NOT a back-door ride through this is a DENIED reaffirmation agreement. Once again if you do not know what you are talking about give don't bad advice.
                You don't understand. "Ride through" is a terms synonymous with "retain and pay". Prior to the law change in 2005, half the circuits allowed debtors to just indicate "retain & pay" on their SOI and those debtors could just "ride through" with their cars so long as they remained current.

                Since BAPCPA, "ride through" is no longer an option. Debtors have to reaffirm, redeem, or surrender. A "backdoor ride-through" is a case where the debtor was allowed to "retain and pay" in spite of the change in the law.

                It would be a mistake for the OP to presume she/he was in a backdoor ride-through just because her/his reaffirmation was denied.
                Last edited by debee; 04-26-2011, 10:00 PM.
                There are two secrets for success in life:
                1.) Never tell everything you know.

                Comment


                • #9
                  She entered into an agreement with her finance company to reaffirm the debt. The court denied it. She has fulfilled her obligation under the statute so the stay does not terminate in 45 days. The statute says nothing about approval of an affirmation agreement only that the debtor enter into one which she did. You know you should get a job advising all the finance companies. They are foolishly paying $150.00 and filing to lift the automatic stay. I guess there entire legal staff are idiots and they like to waste time and money recovering there assets.
                  Last edited by malf1204; 05-02-2011, 09:00 PM.

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                  • #10
                    Originally posted by malf1204 View Post
                    She entered into an agreement with her finance company to reaffirm the debt. The court denied it. She has fulfilled her obligation under the statute so the stay does not terminate in 45 days. The statute says nothing about approval of an affirmation agreement only that the debtor enter into one which she did.
                    Some courts have interpreted it this way but not all. Unless there is case law in OP's district and her case and circumstances conform to it, the lender can repo 45 days after the 341.
                    There are two secrets for success in life:
                    1.) Never tell everything you know.

                    Comment


                    • #11
                      @malf

                      By the way, it's against the forum rules to go into personal attack mode with another member.

                      It's fine to offer a different position and to contradict what another member has to say, but there are comments in your posts that take aim at me personally.

                      Not cool. Not okay.

                      Otherwise, welcome to the forum.
                      There are two secrets for success in life:
                      1.) Never tell everything you know.

                      Comment


                      • #12
                        This thread is getting heated and interesting!

                        Comment


                        • #13
                          It's a dead thread. Let's leave this one in the grave.
                          There are two secrets for success in life:
                          1.) Never tell everything you know.

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