Give car back

[ozzy866]

Hi, I tried the search feature but couldn't find my answer.
My wife and I filed a 13 and we have been making our BK payments on time.
We didn't include the car payment with the trustee payment. We pay the car
payment ourselves each month. It was listed on one of the schedules along
with the lease for our apartment. We pay both outside the plan.
The car has started to have some major issues. I think I can keep it running another
6 months. We owe 14K on this car.
My question is can we surrender the car 9-12 months after the plan has been confirmed?
Thanks------Great site!!
OZ

[justbroke]

It really depends. You would need to file a Motion to Modify Confirmed Plan. The Court will need to deal with whether the creditor is entitled to a deficiency claim. I'm guessing that this car is not that new (more than 2.5 years old)? Typically items paid outside the plan in Florida, are claims that had no arrears and were never late (nothing to "cure" through the plan). You should contact your attorney and ask what your next step would be.

[ozzy866]

Thanks....you are always helpful...
The vehicle is 9 years old.
I am in the middle od a social security disability marathon and wife is trying to pay the bills.
Our BK 13 payment is below $100 and seems to just pay lawyer and trustee.
We want to keep the car as long as it still runs but hope we have an option of surrendering it
since we pay it and our apartment lease outside of plan.
OZ

[LadyInTheRed]

The fact that you make the car payments directly doesn't make much of a difference. Those payments are still part of your plan. So, surrendering the car requires a plan modification.

[ozzy866]

Thank you for the info, What are the negatives for doing a plan modification 6 - 12 months into a 13?

I wasn't sure if I should put this other question on another thread so I posted it here:
We did have to do a recent amendment to our plan to include a house that was suppose to be in a previous 7 (I previously posted about this) ----- I looked on PACER and a new document came up today stating
Order striking amendment-----Amendment to schedules does not comply with local rule 1009-1 (b)
What does this mean?
Thanks
OZ

[justbroke]

L.R. 1009-1 (b) (FLMB) Content of Amendments. Amendments shall contain a caption including the case number and the title and shall be marked “Amended.” Amendments to Schedule A or Schedule B shall set forth all of the debtor’s real and personal property and shall state both the assets added and the assets deleted in the amendment. Amendments to Schedule C shall set forth all exemptions claimed by the debtor. Amendments to Schedules D, E, F, G and H shall set forth additional, new information, i.e., additional creditors, or deleted information.

(from Florida Middle District Local Rules)

Who did the amendment for you? Since I have no clue what's in your amendment, it looks like the rule was not precisely followed. Additionally, the base rules (FRBP) also requires an update to the statistical schedules as well. You may also have service related issues since the "new" creditor must be served the Notice of Bankruptcy.

If you are pro se your BEST FRIEND is your Case Manager. Call the case manager and ask the procedural question related to what is wrong with the amendment.

[ozzy866]

My lawyer was the one who did the amendment, and charged us for it...He was adding 2 separate mortgage companies that were suppose to be included in a previous chapter 7.
From what I am reading it appears my lawyer didn't follow simple filing rules. Am I correct?
I hope this is easy to correct and we have no more glitches....?
OZ

[justbroke]

Procedurally, it is easy to correct by following the instructions on the Deficiency Notice. The deficiency notice should have been sent from the Clerk's office to your attorney. You may want to contact your attorney to find out what s/he is doing to correct the deficiency and file (and serve) new amendments.

Also, why are you adding old Chapter 7 creditors to this Chapter 13? Were you a no asset case in the Chapter 7? If so, then adding them would be moot since they would have been discharged in the Chapter 7 by operation of law even if they were unscheduled, Caselaw in the 11th Circuit support this position 100%.

(NOTE: Okay, since I was so confused, I looked at your old posting history. You had actually reaffirmed the (mortgage) debt in the Chapter 7. This is why the debt was not discharged. I do not know why your previous attorney had you reaffirm the mortgage, but I do understand that Florida (Chapter 7) trustees were pretty sneaky 5 years ago. In any event, I understand your issue now. I'm even more confused that the prior post says that there was no reaffirmation agreement filed. I would have hoped that at least your current attorney would have double checked since you paid for the amendments.)

[ozzy866]

Thanks, I will update when I have more info.
OZ

[justbroke]

Just very strange that you are having so many issues. I wish that it was smoother for you. I hope everything works out in your favor!

[ozzy866]

Thanks...
I have had so many issues with this BK and it seems to just get more frustrating. I just want a monthly amount to pay for 5 years and than live financially responsible and happily ever after.

I had to edit this because I was going on about my representation......

[justbroke]

Understood!

[ozzy866]

Hey Justbroke---here is the real deal as clear as I can state it
I will try to keep this short...
We did a conversion from a chapter13 to chapter 7 about 5 years ago with an attorney in a different state. We did this because we reaffirmed our house in the chapter 13 and of course could not afford it. My lawyer at that time accidently checked that we were reaffirming the house but we were not. We didn't have or sign a reaffirmation agreement with the lawyer, judge, or trustee. We left the house about 5 years ago and moved to a different state. I was hospitalized in ICU and some long term care during the last 2 years. We decided to file a chapter 13 earlier this year because we could not afford even the basics with all the medical bills. Early this year before we filed current 13 I started receiving a mortgage statement from a servicer I had never herd of. I called them and said this property was included in a chapter 7 about 5 years ago. They agreed it had been. I called my previous lawyer and he said my current lawyer could handle that very easy----to ask him...
The current lawyer said not to worry about it. Well after the 341 hearing we received an objection from what I am guessing is one of 3 holders of the mortgage. My lawyer made me pay an amendment fee and put that one mortgage holder on the chapter 13. Than today that is when PACER had a document that said-- Order striking amendment-----Amendment to schedules does not comply with local rule 1009-1 (b)
Earlier in this process my lawyer seemed very uptight with us looking at PACER----He said we know how to do our job-----we have done this for a long time-----we do it well. I did not provoke the guy in any way----I just didn't want this mortgage thing to come up after this BK13.
Questions I have:
He listed 1 out of 3 mortgage holders ---the one that filed an objection. What happens to the other 2----Are we going to be liable for that property?

Is this order striking the amendment going to be an issue----I am assuming that my lawyer didn't file amendment properly.

Our chap 13 payment is below $100 a month for 5 years---How come we are not in a 3 year plan?

I have already paid this lawyer more money than I even have and can't start over with this if we can just get this right---this time.
What worries me is with my health----I don't want my wife dealing with this mess when I am not here.
Again sorry if this is mixed up----It is INSANE!!
OZ

[justbroke]

He listed 1 out of 3 mortgage holders ---the one that filed an objection. What happens to the other 2----Are we going to be liable for that property?

My personal opinion, but I don't think you are liable because the mortgage was discharged in the Chapter 7. If there is no reaffirmation agreement, then the debt is discharged (period). In Florida, some judges will allow you to re-open a no-asset Chapter 7 in order to add missing creditors/debts. But, you were paying this mortgage in the Chapter 13, so it was not only scheduled, it was in the plan. The subsequent Chapter 7 discharged the debt unless you entered into a reaffirmation agreement (by both you and your lawyer singing it, and then tendering it to the creditor). I don't understand on what theory the discharged creditor could object to confirmation.

Is this order striking the amendment going to be an issue----I am assuming that my lawyer didn't file amendment properly.

It is and it isn't. It's a problem if you really need the petition amended to include that specific debt. My opinion is that in Florida, a no-asset Chapter 7 discharges the debtor from all debt except those in 11 USC 523 (Exceptions to Discharge). The exceptions to discharge include "reaffirmed" debt. Checking the reaffirmation box means absolutely NOTHING when it comes to an actual reaffirmation. Reaffirmations must be on the prescribed form and they must be entered into (signed) prior to the discharge date.

Our chap 13 payment is below $100 a month for 5 years---How come we are not in a 3 year plan?

You must be an over-the-median debtor. The latest Lanning decision from the Supreme Court (SCOTUS) confirmed that an over-the-median debtor, who is not in a 100% plan, MUST be in a plan no less and no more than 60 months.

What worries me is with my health----I don't want my wife dealing with this mess when I am not here.

Hopefully, your life exceeds the length of your plan and you can once again enjoy being debt free. While I'm not an attorney, I do have some issues with the prior creditor claiming that the debt was not discharged. The only way the debt was not discharged, would be if there is a signed reaffirmation agreement and that they presented this signed reaffirmation agreement (signed by both you and your attorney with a date before your discharge date) at the (evidentiary) hearing on the objection to confirmation.

My rant follows: I would have said just re-open the old Chapter 7 ($260 fee plus attorney fees), and add the "missing" creditor. However, this is not a missing creditor. This is a creditor that was scheduled in your Chapter 13. You converted to Chapter 7. Your "intention" was to reaffirm. However no reaffirmation agreement was executed (that's what you tell me). The debt was discharged (period). I would just file an opposition to the objection to confirmation and show, through the prior discharge and record, that the debt was in fact discharged, and that the movant (the so-called mortgage creditor), is not a party in interest as they are not a creditor as defined in 11 USC 101.

Maybe it's me, but I would have approached this as simply an opposition to the objection to confirmation. Worse case, they are sustained on their objection and you have a chance to modify the plan. What I would think should happen is that your attorney shows that the debt was not re-affirmed, was discharged in the prior bankruptcy discharge, and that the movant (creditor) is neither a creditor nor party in interest because the debt was discharged. The smart judge, based on what I have read here, should overrule their objection... because the debt was discharged.

But that's me talking!

[ozzy866]

I guess I just have to leave it in this lawyers hands.
I have communication issues with this lawyer which in turn creates trust issues....Wife said I have been very patient.
It makes complete sense to me that this mortgage stuff really shouldn't be an issue---wonder what my current lawyers issue is??
I am having a hard time trusting the process...
I guess I have done what I can do right now.
Justbroke----I read a lot of your posts and they are very helpful.
Thank you....Thank you....Thank you.....
OZ