Repo and Chap 13

[leenmlss]

My spouse and I filed for a chapter 13 in Sept. 08. The trustee filed a motion to dismiss as he was missing some documents and the first plan payment was late. The judge granted the dismissal. Our attorney "thought" they had filed an objection to the motion but hadn't. They have since filed an Motion to reinstate the bankruptcy as the required documents were infact with the trustees office and the plan payment had been sent. The trustee filed an objection and it is set for hearing in Dec. Our attorney told us the stay would remain in effect for 30 days. Apparantly not the case. Last week a creditor (title loan) came and repo'd our truck. This creditor was included in the plan but had not yet recvd the first pmt. My atty called the creditor and explained that the case was set for hearing and the company stated that for now it was dismissed and so they had the right to repo. Today I got a letter from them giving me 7 days (which expires 2 days from today)to redeem the vehicle by paying the loan in full. I don't have the money to pay the loan in full. Do they have to wait until the hearing to sell the truck? What if the case is reinstated and the truck has been sold? It is valued at 15k and the payoff is 2500 (1000 more than I borrowed)

[FranksMom]

Hi Leenmlss,

I'm sorry that you're going through this; it can feel like the world is just eating you alive, one bite at a time. And there's nothing like paying hard earned money on a "competent" attorney, huh? You must be so frustrated. <hugs>

To answer your question, no, the creditor does not have to wait until the hearing to sell the vehicle. As long as your case is technically dismissed, your vehicle is fair game and you are not protected under the automatic stay, unfortunately. I would have requested that the attorney file an emergency motion to get your case reinstated as quickly as possible, considering that you needed the stay protection. If worse came to worse, you could file another chapter 13 petition to get instant stay protection (which I don't recommend, as your lawyer will probably drop your case, and you'll be on your own with a brand new case), and reinstating your old case is preferred. A new petition will reduce some of your rights and protections, and should only be done if absolutely necessary. Expediting your current motion for reinstatement would be your best option.

In the meantime, you could try to write (or fax) a letter to the creditor, demanding a full detailed accounting of your loan and payment history as well as verification of the balance due on your vehicle. It's a bit of a stall tactic, which may or may not be effective, but certainly can't hurt. Your balance that you still owe- is that 2500 or 25,000?

Hope this information is of some use to you.... Hang in there.

[leenmlss]

I took out the loan for $1500.00. The total to redeem the truck is now $2485.00.When the atty was going over my options she said she didn't think the trustee was going to back off of his objection to her motion to reinstate and so I needed to decide if I wanted to file again. It sounds like that may be my only option to getting the vehicle retured without coming up with the money to pay it off? How long does it usually take for the trustee to begin sending out plan payments? I can't help but wonder if they had recvd. a pmnt from the plan if they would of held off. Now they are in a great position (with the trucks value being so much higher than the amound owed) and are not willing to work with me at all. I got a letter from them today stating I had 7 days to redeem the vehicle. However, the 7 days is up on Monday?? Then they sent the letter to my previous address which is why I now only have two days to redeem. I have been at my curr res for over a year. My drivers license and vehicle registration is listed with the correct address. Talk about frusrating. They were included in the plan and I had already made my payment:-(

[Flamingo]

I took out the loan for $1500.00. The total to redeem the truck is now $2485.00.When the atty was going over my options she said she didn't think the trustee was going to back off of his objection to her motion to reinstate and so I needed to decide if I wanted to file again. It sounds like that may be my only option to getting the vehicle retured without coming up with the money to pay it off? How long does it usually take for the trustee to begin sending out plan payments? I can't help but wonder if they had recvd. a pmnt from the plan if they would of held off. Now they are in a great position (with the trucks value being so much higher than the amound owed) and are not willing to work with me at all. I got a letter from them today stating I had 7 days to redeem the vehicle. However, the 7 days is up on Monday?? Then they sent the letter to my previous address which is why I now only have two days to redeem. I have been at my curr res for over a year. My drivers license and vehicle registration is listed with the correct address. Talk about frusrating. They were included in the plan and I had already made my payment:-(

Since your Plan was not confirmed no plan payments will be sent out until all this is resolved and your Plan confirmed. It appears you have sent in your initial Plan payment prior to the dismissal but that payment will either be held in abeyance until this is all resolved and applied to your new Plan if it goes through or refunded if it does not. Your attorney can correctly advise. Since you had documents missing that appears to have been your attorney's fault (but the trustee did, in fact, have those documents) but your first payment was late which caused the dismissal. That is your fault.

You need to get the proper information to the people holding the truck and quickly. Your attorney needs to do this for you since he represents you and I would be on the phone as soon as his office opens Monday morning.

Remember, trustees do not play games. Being late with a Plan payment or anything else during the course of a Chapter 13 from filing to discharge can result in a dismissal as you have found out. Best of luck to you and I certainly hope you can get this resolved to your benefit.

[FranksMom]

I took out the loan for $1500.00. The total to redeem the truck is now $2485.00.When the atty was going over my options she said she didn't think the trustee was going to back off of his objection to her motion to reinstate and so I needed to decide if I wanted to file again. It sounds like that may be my only option to getting the vehicle retured without coming up with the money to pay it off? How long does it usually take for the trustee to begin sending out plan payments? I can't help but wonder if they had recvd. a pmnt from the plan if they would of held off. Now they are in a great position (with the trucks value being so much higher than the amound owed) and are not willing to work with me at all. I got a letter from them today stating I had 7 days to redeem the vehicle. However, the 7 days is up on Monday?? Then they sent the letter to my previous address which is why I now only have two days to redeem. I have been at my curr res for over a year. My drivers license and vehicle registration is listed with the correct address. Talk about frusrating. They were included in the plan and I had already made my payment:-(

I don't think it was about not receiving a plan payment; I think they knew that your case was dismissed, the stay was lifted, and that they were able to repossess the vehicle legally. To answer your question, some trustees don't sent out payments until after plan confirmation, which could take months. Some will start promptly, if you put a clause that states that the trustee is permitted to distribute pre-confirmation payments. Either way, I don't think it was the payment that made them repo the car.

What is the trustee's reason for objection? They usually are okay with reinstating a case if it's the first time there was an issue, and one that is easily correctable. Especially if you say that it was an error, and that the trustee's office actually did receive the required paperwork and payment. I'm wondering if there's something that your attorney is not telling you? I would request to see the paperwork that has been filed, at a minimum.

[leenmlss]

On the original motion to dismiss the trustees reasons were the missing auto titles and the first plan payment. After our attorney filed the motion to reinstate the trustee filed an objection with the plan payment being the only issue. In his objection he states that he wrote us a letter with the bankruptcy basics and the letter instructed us to begin making plan payments immediatly and that the motion to reinstate does not specify any good jusifiable reason for the plan payment being late and we should of known. I did not send the plan payment because my plan had not been approved and the 341 hearing had been extended. I misunderstood somewhere that the plan had to be approved before payments were due. How will they know your actual payment if they haven't approved anything? I learned the hard way and understand it is my fault.

It seems that my only hope of getting the truck back is to refile first thing tommorow. Am I able to do so with the hearing on the motion to reinstate being scheduled for mid Dec? Could my attorney just withdraw the motion to reinstate and then refile all in the same day? Is the process/trustee more diffucult if you do file again?

Thanks again for all of the help. I would like to be as informed as possible when I call my attorney in the morning.

[FranksMom]

I just want to clarify something for you- I don't believe that reinstatement, nor a re-file will necessarily get your truck back for you. If it was taken legally, and there isn't just cause to get it back, you probably won't.

Just because the Trustee objects to reinstating your case doesn't mean that it won't be reinstated. It will be set for hearing, and your counsel can explain to the judge what transpired. The judge will probably ask if you have the payment "available now", and you can say that you do; and that will probably take care of that. I have the feeling that there's more to this....?

How late were you on your plan payment, prior to the Trustee filing a motion to dismiss your case?

[leenmlss]

Thank you for clarifying. The only reason I would of rather refiled than wait until the reinstatement hearing was because I thought I had read somewhere that if you file within 15 days of the repossession the auto had to be returned. I don't know what would be considered just cause for returning the truck to me and who decides that? It is our only vehicle. It was a title loan
with 300 a month payments (only paid interest due). At the time of filing I was current however had not paid them directly since the time of filing. I only borrowed 1500 but now the interest charges from that time are over 700. There is also a repo fee and a key charge. I am not sure why they charged me so much (225) because the keys were in the ignition so they just got in and drove it away. I also had to supply them with a key when I took out the loan. Because of the interest on the loan my attorney included the whole debt into my plan. I had every intention on keeping the auto and in my mind was paying to do so by sending in my plan payment. I am not sure what the actual due date was of the plan payment but it was sent approx 45 days after the filing. It was my first payment. From the day we filed it has seemed the trustee is being very hard on us. He objected to the plan right away. Had an objection because my spouse had 401k deductions taken out on his paystub. Then Continued our 341 hearing stateing he didn't have enough information (our attorney was in another case and sent a fill in). Objected to some of our exemptions (horse) and stated we would have to return our horse trailer to the creditor. I understand it is considered a luxary item however, to me as a horse owner it is a necassity. t seems like it would be better to let us continue paying the creditor the debt rather than have the security returned and the creditor take a loss. The whole process has been very frustrating to us. We feel like our attorney could be doing more for us
(or at least of filed a objection to the trusees motion to dismiss)however, we have already paid them and ultimatly understand that the case was dismissed for something that was our responsibility.