Reaffirm w/ Ford in VA - Attorney Says NO

[AlmostAmos]

I filed Ch 7, INTENTION was to reaffirm both of my cars. One of the cars is with Ford Motor Credit. It is a fairly new loan (February of this year). A local law firm is representing Ford and sent a reaffirmation agreement to my attorney. Yesterday (at my 341), my attorney had me sign it but said he would have to go over it. Today, I get the following from his office:

"Mr. AlmostAmos, I have spoken with Mr. AlmostAmos' Attorney concerning the reaffirmation agreement for the 2010 Ford. We will not be sending the reaff. to Ford because your budget is upside down and the Judge would not approve it. The Judge has ruled that as long as you stay current with your payments you can keep the vehicle without a formal reaffirmation."

What would you recommend from here? From what I've read here on BKF, it appears Ford thumbs their nose @ this situation. Are they going to take it or possibly not b/c my attorney will not sign it?

HMM, UGH, cough, puke. What does this mean for me? Although we have 2 cars, this is the only one that can hold our entire family... If Ford takes it, we're screwed.

-AA

[Maine]

Hopefully local VA law says you can stay current and keep the car without a reaffirm agreement. Your lawyer needs to check the case law on that very carefully. I have a FMC loan and have been researching them, there are no stories of pay and retain with them. FMC wants a contract or their car.
Can you maybe make a proposal to the court on how you are going to pay the payment despite having a negative dmi? I know the local court here makes you fill out a form if you are negative and want to reaffirm. I will have to list out exactly where I am going to find $250 in a budget that is $-100. I told my lawyer I will eat less, no entertainment and no charity if it means I can keep the car that my family NEEDS.

[olivies]

Although we have 2 cars, this is the only one that can hold our entire family... If Ford takes it, we're screwed.

-AA

You could manage- it wouldn't be the end of the world- you would just have to use 2 cars for a while when you ALL go somewhere. We are in the same boat. We have 6 kids, so there is 8 of us. We had an Expedition. We are surrendering, because the payments is $670 a month and that's stupid. So we bought a used car, and "if" we all have to/want to go somewhere we just take 2 cars. Really, so far, that hasn't happened that much. Plus, think about what you could do with your car payment money- save it for a few months and then you'll have the ca$h to buy a used older vehicle to carry you all around in, and you won't have the ball and chain of a payment. Just some food for thought.

[AlmostAmos]

I continued to press this issue with my attorney's office last night and ended up ticking them off. I guess I came across as if I know more than they do. I wasn't trying to sound like a know-it-all. But, my wife says I am!

The last email I received from my attorney's office:
SO, after receiving this, I decided to call Ford and see what they have to say. They started off the conversation by telling me that the judge in Richmond NEVER signs off on reaffirmations and they realize that. But, they said that the UNSIGNED reaffirmation agreement must be submitted and NOT approved by the judge -OR- they WILL repossess. If it is turned down by the judge, "you keep it and ride and pay".

-AA

[tcreegan]

Hello AlmostAmos,

Your posts are looking good; actually makes some good sense......

Judges do not like to see affirmations b/c they are almost always not in the debtors best interest. So the judge does not sign off on your reaff.

Likewise, good attorneys will not sign off on reaffirmations, it exposes them to some liability.

So......
FMC is actually helping you: Requiring you to fill out a reaffirmation document, even though you expect it to be denied, is called "performing on your intention" or "performing on the contract" and this legally protects you. FMC cannot call you in default of contract just b/c you filed BK. You would have to be missing payments or no insurance to be in default.

It looks like your lawyer and even FMC are on track with the best outcome for you. You stay in the vehicle, making those payments, owe more than it is worth,......then one day you see a beautiful low-mileage used car for less than half of what you are paying.....and you can just walk away from the upside down loan. No need to roll it into the next loan. No need to try to sell the vehicle for something vaguely close to the loan balance. Just turn it back into FMC and go your merry way with your 'new' low-mileage used car.

Glad to see it is looking good for you,

Tom in Colo

[AlmostAmos]

Well, this f'in mess just keeps getting better. I emailed my attorney last evening letting them know what Ford said had to be done in regards to the reaffirmation agreement to "pay and ride".

The attorney's response:

Mr. AlmostAmos, We will not be filing the reaffirmation agreement (with the court). Your attorney has sent a letter to Ford's attorney indicating as such. As I mentioned earlier, because of the standing ruling by the Judge in this district regarding reaffirmation agreements being filed, or not, we fully do not expect any problems with Ford.

So, do I let this go KNOWING that Ford will repossess my car or should I get roudy with my attorney? It seems that he should be listening to ME but he contends that he has 35 years of experience and I don't understand how things work in "this district". When Ford comes to get my car - is he going to get it back for me? I don't think so. What leg does he have to stand on? And, in the meantime, how do we get to/from work? I am so ticked right now.

-AA

[Mi Bankruptcy]

He works for you until the case is closed. Tell him to submit the reaffirmation to the judge. Period! Let the judge deny it. Tell the attorney that your happy he has 35 years of experience. However, after you have spoke with the company that holds the note on your car you are confident what you want him to do. If he has a problem with that then you will file a complaint on him.

We were due to receive a large tax return and my attorney told me the trustee didn't take tax returns in our district and there was no need to exempt. I told him I wanted it exempted and I sent him a case in another district in Michigan where the trustee went after a tax return. I told him if the trustee does not take returns he should not have a problem exempting it.

If the judge does not typically sign off then he should not have a problem submitting it.

[ccsjoe]

Almost,

I agree with Mi Bankruptcy. The attorney works for you, let him know your instruction is that he sign and file the reaff, period. Also have him contact Ford's attorneys to indicate the change of course.

[tcreegan]

no reaffirm by lawyer

Hello again AlmostAmos,

Your lawyer does not have to file a reaffirmation, and good lawyers will NOT sign off on a reaffirmation. Your lawyer knows what he is doing.

You need to communicate to your lawyer that you do NOT want a reaffirmation from the BK court.

Tell your lawyer you DO want him to negotiate a "ride through" (aka "retain and pay") with FMC.

So, do I let this go KNOWING that Ford will repossess my car

Although FMC is infamous for heavy-handed tactics, many, many courts have held that if you attempt to reaffirm and are not in default (stay current on payments, insurance, etc) the vehicle cannot be repossessed. Filing a BK is not an automatic default anymore. You might have some state laws to back this up.

Tom in Colo

[OhioFiler]

Well, this f'in mess just keeps getting better. I emailed my attorney last evening letting them know what Ford said had to be done in regards to the reaffirmation agreement to "pay and ride".

The attorney's response:


So, do I let this go KNOWING that Ford will repossess my car or should I get roudy with my attorney? It seems that he should be listening to ME but he contends that he has 35 years of experience and I don't understand how things work in "this district". When Ford comes to get my car - is he going to get it back for me? I don't think so. What leg does he have to stand on? And, in the meantime, how do we get to/from work? I am so ticked right now.

-AA

You hired the attorney because he is the expert. Take his advice.

You should not be communicating directly with your creditors during the bk proceedings.

[AlmostAmos]

Well, I guess I will sit back and watch my attorney do his thing... I, and quite a few other people here, think he is NOT handling this correctly. From what I've read, I believe that by not submitting the UNSIGNED reaffirmation agreement to the court (to let them turn it down), *I* am not exercising my intentions which is a violation of the debtors responsibilities in the bankruptcy code (521). B/c of this, I believe Ford can claim I have defaulted. But, of course, I don't get paid $250/hour and am not an attorney with 35 years of experience.

If (when) my vehicle does get repossessed, who is going to get it back for me? That's right, nobody. My attorney will want $ to fight with them which I believe will be worthless b/c of various cases I have read. The 4th circuit ruled on a case exactly like this last year & the debtor lost, vehicle gone. I'm guessing the BK judge will not be able to do anything b/c it will be discharged @ that point, right?

Ugh.

[AlmostAmos]

[AlmostAmos]

Well, here we are 1 month after discharge & guess what?!

Last night @ 10:00pm there was banging on my door & all sorts of commotion. I grabbed my gun & prepared for a home invasion but it turns out it was only a pair of repo thugs & "were going to take my car no matter what". So, I told them they were doing no such thing. They got pretty pissed off that I did not respect their "authorit-ay" - and told me they were "calling the law". I said "bring it on". So, 5 minutes later 2 county sheriff's deputies showed up. Yay!

I invited the deputies in & explained the situation to them. Clearly, they had no idea about bankruptcies, discharge injunctions, etc. - nor did they want to learn... They told me that "in our county, reposessions are voluntary. If they want your car and you don't want to give it to them - the only way they can take it is if they get a court order. Unless, you were to leave it parked on a street or something". So, I explained to the deputies that I would NOT be giving it them & to tell the repo dudes they were wasting their time trying this with me until MONDAY morning when I can talk to my attorney & he can call the BK judge.

So, after this adrenaline dump, I was pretty pumped up. I called my parents who live close & had them tail these bozos until they got 30 miles from here so I knew they were not prowling around. I then took my other car and turned it SIDEWAYS in front of my garage door & then used a 15-passenger van to barricade that one in. Good luck moving all of that w/o me knowing. I slept w/ one eye open all night & there has been no more trouble. For now.

SO, where do I go from here? I called my attorney while those bozos were here & left a voicemail. Then, after the saga was over - we emailed the attorney to let them know. I forwarded a copy of my attorney's mail back to him where he said "it will not be repo'd - you have nothing to worry about. I've done this for a LONG TIME".

Anyone want to place bets on how this is going to end? I'm waiting until Mon @ 8:00am to light up the phones at my attorneys office & then I'm going to give Ford Credit an ear full.

For those who haven't read my other posts. This is a new (Feb of '10) loan with Ford and was not reaffirmed. I actually signed the reaffirmation but it was never filed b/c we had negative DMI. I have NEVER paid a late payment & I've been paying 2 weeks early since our filing. Online, our account is listed as "current" and shows our payments being applied. We just paid our last one on the 2nd of the month. The repo order went out Friday.

HELP? Opinions? I'm ready to duke it out.

-AA

[DebtEnder]

Time to go live in your old attorneys lobby area and tell him his 35 years exp means jack shit. Attorneys are human, and therefore stupid and also prideful.

Have him reopen the case, file the reaffirm agreement and then have the judge deny it and have a COURT order saying so. At his cost

[AlmostAmos]

Time to go live in your old attorneys lobby area and tell him his 35 years exp means jack shit. Attorneys are human, and therefore stupid and also prideful.

Have him reopen the case, file the reaffirm agreement and then have the judge deny it and have a COURT order saying so. At his cost

Your post made me laugh. I absolutely agree w/ your comments. I TOLD him to file the agreement & have the JUDGE deny it. He said it would make him look like a moron - filing a reaffirmation agreement that he KNOWS is 1) not in good faith and 2) will be declined. Well, who looks like a moron now?