Going after me for a deficiency?

[FranksMom]

Got a question that I couldn't find an answer to...

Assuming that a creditor goes after me for a deficiency balance after I surrender property, what happens? Do they file an unsecured proof of claim that I can dispute? Does it become a suit outside of the bankruptcy? Either way, wouldn't this be considered debt that occurred post petition that I would then be liable for?

[HHM]

Deficiency claims on surrendered property become unsecured claim in your BK, assuming, under state law the creditor is allowed to take a deficiency claim. If you are surrendering property (or if you are already in default and beyond the redemption or cure right), the creditor has a contingent, unliquidated claim, so the deficiency relates back to the date you file and is therefore not a post-petition claim.

It's not clear exactly what you would dispute, however?

[FranksMom]

I am surrendering a 910 vehicle, and the creditor elected to bifurcate the debt into secured and unsecured in their proof of claim. They are unaware that I plan to surrender the vehicle at this time. I would dispute this, as a 910 vehicle is deemed as wholly secured. At first, I said, hey... they are giving me an opportunity to cram down the vehicle, despite it's 910 status... and then I said... whoa! They're going after a deficiency...! Thoughts?

[HHM]

You don't get it both ways...if you decide to KEEP the vehicle and it is a 910 vehicle, you get to cram it down. If you surrender, you don't get to cram their claim, they have an unsecured claim for the deficiency.

[HHM]

Incidentally, do you have an attorney. If not, I suggest you get one. Based on some of your recent posts, I see a high likelihood of you getting yourself into trouble if you go pro se (imho).

[FranksMom]

Thanks for the vote of confidence, I appreciate it. And thanks for the warm welcome.

[FranksMom]

And for what it's worth....

You don't get it both ways...if you decide to KEEP the vehicle and it is a 910 vehicle, you get to cram it down. If you surrender, you don't get to cram their claim, they have an unsecured claim for the deficiency.

In response, please allow me to say this....

1. I never suggested that I was going to "CRAM DOWN" their claim, nor do I disagree with the possibility of a deficiency claim.

2. A "910 vehicle" (a vehicle purchased within 910 days of the filing of the debtor's bankruptcy petition) CANNOT be crammed down. HHM, you are very mistaken.

A 910 vehicle is not subject to bifurcation under 506(a). Look at 1325(a)(5)(B)(ii), and you will see that the language clearly implies that the creditor is entitled to the amount of their claim, not the value of the collateral securing the claim. I'm surprised that you are misinformed about this topic, considering what a useful and informative forum you administer.

Per 11 U.S.C. 1325(a), "For the purposes of paragraph (5), section 506 shall not apply to a claim described in that paragraph if the creditor has a purchase money security interest securing the debt that is the subject claim, the debt was incurred within the 910 day preceding date of the filing of this petition, and the collateral for that debt consists of a motor vehicle (as defined in section 30102 of title 49) acquired for personal use of the debtor".

There may be exceptions to this, such as a vehicle purchased for purposes other than personal use, but that's another issue....

May I respectfully suggest that you brush up on some of the 2005 BAPCPA changes and recent case studies, and while you're at it, perhaps some of your forum etiquette? A forum is a place to ask questions and exchange information; not to be attacked.

[AngelinaCatHub]

ONLY AN OPINION! When you come here to this Forum, you best not expect legal aid and depend upon it. There are all kinds of disclaimers and this is a “CHAT ROOM”, not free legal advice. HHM is one of the best. We are all here for the same reason and advise only upon our own observations and experiences, as well as opinion. To be rude to one who, even if not accurate, and tries to help, is not doing you, or anyone who is watching your question any good. I personally think you are non-sequitur. ‘Hub.

[FranksMom]

When you come here to this Forum, you best not expect legal aid and depend upon it.

Based on what I have read in the past, I felt HHM was an excellent source of information in this forum also (and still believe so), which is why I was so surprised by the feedback I received. And if this forum is meant to exchange ideas and opinions freely, "we best not" put anyone down for having their own opinion, or for asking for help when we need it.

Implying that someone is not capable of handling their case pro se, as HHM did, (whether they are capable or not) when visitors are here to exchange ideas is NOT "trying to help" as you say, nor is it friendly. It's insulting, and doesn't benefit anyone. It also can be discouraging for some people.

Just because someone is willing to "help" in a forum doesn't give them the right to treat others badly... no matter how helpful they are. If you're looking to stir the pot, Angelina, I'm not interested- I didn't like the way HHM responded to me, I found it a bit rude, and I expressed that, as is my right.

[HHM]

When you say a 910 vehicle, that is insider speak for a vehicle that "qualifies" under the 910 rule to be crammed down. So in that sense, we seemed to have mis-understood what each other was saying.

As for rudeness or whatnot, most trustees don't like pro-se chapter 13's either. Usually the first question out of a trustees mouth in at a chapter 13 341 meeting is "why didn't you hire and attorney." Let me ask you this, when the trustee objects to your chapter 13 plan, do you know what to do? (they ALWAYS find something to object too, that is their job). All I can contribute is what I see...and I see a case, based on the questions you have and the issues you are facing (surrendered assets, on going lawsuit wiht an LLC, etc) a case that really needs to be handled by an attorney. If your offended, all I can do is take that as an affirmation that I am most likely right because I am telling you something deep down you know is true but aren't ready to admit.

[FranksMom]

HHM.... Thank you for your response. Without getting too deep here, (there's lots you aren't aware of, and I know that you're only able to go on what I have shared with you) let me just say that if I was able to have an attorney represent me in this matter, I most DEFINITELY would, as it's extremely complicated, risky and time consuming. Emotionally, it's very trying. Yes, I have a VERY complicated case, and would be much better off having an attorney handle this case. Am I ready to admit that, you ask? Absolutely- it's a given. I'm not sure why my admittance to this is so important to you; it's almost like telling someone with a broken leg that they are at a disadvantage. They already know it, and can't do anything about it. I'm not going to sit and feel sorry for myself because I'm at a disadvantage; I'm going to fight, and do what I can to make it through this.

Sometimes, things are beyond our control, and we have to just do the best we can with what we've got. I have wanted to throw in the towel on this a dozen times already, but I can't. I know that there are countless opportunities for errors and serious mistakes that can adversely affect me personally, but at this point, I have no option but to go to it myself.

When the trustee objects, will I know what to do? No, right now I don't, but I suppose it would depend on the basis for the objection itself. I hope I'll have a plan if or when the time comes, and if not, I hope I can harness the power of some of the great minds in here to give me some ideas. I realize that this is an uphill battle all the way, and to be honest, it can be intimidating at times. I've already had my pity party, and now I've moved on. Hope you'll come with me.

[HHM]

Where this is a need, people find a way.

[justbroke]

As for rudeness or whatnot, most trustees don't like pro-se chapter 13's either. Usually the first question out of a trustees mouth in at a chapter 13 341 meeting is "why didn't you hire and attorney." Let me ask you this, when the trustee objects to y

I've had relatively good success with my Judge and Trustee. When I got to my 341, I already had filed and granted a Motion for Wage Deduction Order. Filed a Plan in the District Format (and our District really isn't strict on these). I also had already performed and sustained on a few objections. So, they saw a clean package and someone who appeared to know what they are doing. (Not that I won't get into any trouble later.)

Having wrote that, and after having (started to) review other pro se filings (pleadings, objections, etc), I was shocked at how informal they were. Some were just a "Dear Judge" letter. I can see how this is (procedurally) frustrating to the Judges, Trustees and creditor attorneys.

However, there are a few of us pro se filers who have managed to navigate the system, play by the rules, follow appropriate style guides for our local District, and do our best to abide by any other formality (including use of negative noticing, and writing our own Proposed Orders).

Then, on the flip side, there are a bunch of pro se filers who I see their cases dismissed, and wonder how they made it more than 4 months into the case. I was frustrated, myself, just trying to navigate their pleadings (letters to the Judge).

Again, I will say that not all pro se filers are the same. I could have filed with an attorney by the time I actually filed -- as I didn't have money until the day before I filed.

I would say I have a moderately complex case. I am in contact with my case manager (in the Clerk's office) at least once a week. I don't pester them, and only ask procedural questions when I really need to. None of the creditor attorneys have really gone after me, accept for one which doesn't like my provisions on my Plan (standard I'm trying to modify... when 1322(b)(2) doesn't allow me to...).

I'm not here to defend all pro se filers... but to defend pro se filing in general.

[FranksMom]

Thank you for weighing in JB- (was wondering where the heck you went- lol)

I too, have had good success with my judge and trustee also (as you know ) but I didn't think it was worth mentioning here, after reading some of the comments written. My judge has been very fair, and the Trustee has assisted me where I needed it. No complaints here (yet). Obviously, I have made the mistake of asking a few honest questions here and I was judged for it. Personally, I'd rather ask a question, sound foolish and learn something, than to assume I know something and fall on my face later.

I wonder if the ones who judge others for asking questions are the same ones who thought it was "uncool" to ask a question in school, and subsequently failed the next day's test because of it. LOL

[AngelinaCatHub]

If you're looking to stir the pot, Angelina, I'm not interested- I didn't like the way HHM responded to me, I found it a bit rude, and I expressed that, as is my right.