Reaffirm w/ Ford in VA - Attorney Says NO

[despritfreya]

I think the 1st thing you need to make clear to all is whether or not you are 100% current and whether or not you have full coverage insurance on the vehicle. If either one of these requirements are not met, Reaff or no Reaff, FMC has the right to repo.

Des.

[clevelandmom]

Dear AlmostAmos,
Pardon me for talking with a mouth full of popcorn. We have a Ford. We are negative DMI (-$900) Thought about reaffirming. No way in hell I will now. Thanks for the 411. Looking forward to your next installment to see how this turns out. Go get 'em. I'm sending in Vin Diesel . . .

[DebtEnder]

Des per prior post he has been paying in advance of about 2 weeks. Don't know about insurance but I assume he is. This is well known that Ford will repo after BK if a reaffirm is not attempted.

[despritfreya]

Des per prior post he has been paying in advance of about 2 weeks. Don't know about insurance but I assume he is.

My bad. . . guess I should have read the post more completely. Still question on insurance but my guess is that you are correct.

Des.

[Charlie777]

Keeping the car and while making all payments without a reaffirmation s called a "Drive Through" and whether you can avoid repossession is very dependent on your local BK rules and Judge. Ford Credit (and Toyota as well) takes the position that their contract sets Bankruptcy as an "event of default", and they assert the right to repossess even if you are current on the loan and maintaining insurance. Once the automatic stay is lifted, I understand that Ford is likely to try to repossess. I also understand attorney's (including mine) hate to see clients reaffirm debt unless the borrower gets something in return, and the reaffirmed loan truly makes sense from the standpoint of the debtor's budget etc. I was initially frustrated by this but in hindsight it was best for me.

Hopefully your attorney has a lot of experience practicing in the local court where you filed and he knows what you can do, and what the judge will tolerate. So should Ford's local attorney.

[AlmostAmos]

Des... Sorry if it was not clear. This loan IS current and has NEVER been late - before/during/after filing. The payment has never even been paid on the due date, always early. And, yes, it is insured (with a huge company) and has been since purchasing the car. I've not changed policies or anything so the coverage has been constant. This is purely about the reaffirmation, or lack thereof.

-AA

[AlmostAmos]

Thanks for your comments Charlie. Obviously I know what a drive through/retain & pay/ride through/etc., is. The big question for me is that I thought, during the BK process, that my attorney should have filed an UNSIGNED reaffirmation agreement & let the judge formally turn it down. This would have solidified my "exercising my intention" portion of my statement of intentions.

I have been over this a thousand times in my mind today and CANNOT wait until tomorrow morning to start the calls. The owner of the 15-passenger van had to take it this evening so now there is a truck barricading my other vehicle in front of the garage door. I thought about taking the wheels/tires off of the vehicle in question & locking them in my house but I think this is a bit extreme due to the fact that it is 1) in a garage w/ NO power (we killed the circuit breakers to the garage) and 2) barricaded in. I seriously doubt the repo dudes will come back tonight as I made it VERY CLEAR where I stand with this last evening. If they do show, I'll call the cops myself & will have them removed again. Monday night should prove interesting though.

A brief thought about the repo guys... What a pack of fools. They show up @ my house late at night & start pounding on the door, ringing the doorbell over & over and shining lights in my windows. One of the thugs comes around the back of my house, through a gate, & starts yelling demands at me through a glass door. 10 seconds prior to this, I had a gun in my hand & was convinced that I had 2 people about to kick down my doors (for real). I was crouched behind the island in our kitchen waiting to lay waste to the nuts who were about to come through the doors. Talk about a bad feeling. Wouldn't it make more sense to initiate contact during the daylight/normal hours & AT LEAST tell me your F'n company name? They just start screaming through my doors/windows telling me what I AM GOING TO DO, and that there is NOTHING THAT I CAN DO TO STOP THIS. Acting like this, I wonder why more of these gomers don't get shot. I am a law abiding citizen & not looking for a problem. But, last night it truely scared the crap out of me/my wife/my kids. After I told them to FOAD, they backed their tow truck into my driveway, turned on their flashing lights (on the roof) and started shining their search lights on my neighbors houses. I guess they were trying to intimidate/embarrass me. They have no idea what kind of person they are dealing with, trust me! What a crazy experience.

[clevelandmom]

You know Mr. AlmostAmos, not only do I hope you win this battle with Ford, but I also wish you could get some kind of compensation through them for subcontracting with a company that has these kinds of practices. Even if you were an intentional, irresponsible loser that just decided one day to quit paying your bills (which YOU, and no one on this board is because we have all taken unfortunate turns and have LEGALLY initiated the court system to help us), these guys should be found guilty of intentional infliction of emotional distress. God knows there are enough stories in the news lately about "home invasions," and particularly that one in Connecticut that has been all over the news lately. I probably would have died of a heart attack. And all because a reaffirmation wasn't signed - NOT because you haven't kept up your payments. At the very least I think Ford should call you and say, "sorry, no reaffirmation - no car. Please turn it into the dealership by a certain day or we are coming to repo it." Wouldn't that be the CIVILIZED thing to do?? Mutherless rat bastards. Best of luck to you my friend. I'm pissed at Ford too for allowing this. They can take their car and shove it up their . . . . I don't want to do business with a company that has these kinds of practices.

[AlmostAmos]

Cleveland - this is a large part of my anger right now. Why does this have to be such a covert, bad, experience? Why isn't Ford up front with their intentions? I called them 2 days after discharge to find out where our relationship was (ie were they going to be ok or were they going to repo). Of course, they told me my "account was current". And, after they decided to repo it, why don't they just call me, send a letter, or stop by and act reasonable? Instead, it was as if they were going to do a no-knock raid on my house.

Oh well, 12-1/2 hours until I begin fighting this battle. I'm ready for the battle & am going for blood.

[clevelandmom]

We are treated like thugs and criminals all in the name of Ford's balance sheets. That's what this is all about. Reaffirmations allow them to keep their balance sheets at what they were before the bankruptcy. If we don't reaffirm, they have to write it down to the actual value of the car. If we kept making payments on a car that is worth half of the loan we're paying on, they would be making money hand over fist - but that's STILL not good enough. I wonder which genius at Ford decided it was better business to put fear in people instead of actually trying to work with them when they're down at out. Oh - and by "working with them" I mean having them continue to make their payments, ON TIME, with no probelms whatsoever with their loan. No Thanksgiving dinner for Ford!!

[tcreegan]

Hi all,

In theory, a BK is not a default breach of contract, the relevant law is 11 U.S.C. §541(c) and there is a growing pile of court cases backing this up.

The BK code requires redeem, surrender, or reaffirm; but if it is not in place by the discharge they can't repo unless there is some other default, in theory at least, would be nice to see someone take it to FMC to get the idea across.

The repo guys are lucky, here in Colo the odds are good that the homeowner opens fire. Had a guy hear a noise one night in his backyard but couldn't see anything so he put a nicely spaced spread across his backyard and went to bed. The burglar got hit, got back over the wall, and bled out in the field behind the house. An 81yr old guy went out and saw a couple guys stealing his trailer, he put two rounds in one of the guys.

Good luck Almost, keep us posted on what happens..

Tom in Colo

[debee]

I'm glad you emailed your attorney's words back to him. He should be ashamed of himself. Have you read In re:Jones? It was a decision by the VA Court of Appeals siding with Chrysler's right to repo when the debtor was not late in payments. I copied this from it:

"The requirement ... to inform a debtor of his right to cure default is necessarily based on the premise that the default can be cured. Here, however, both parties agree that the event that triggered default, the filing of a bankruptcy petition, cannot be cured. Therefore, we affirm the district court's holding that DaimlerChrysler was not required to give the Joneses notice of default and right to cure before repossessing the vehicle."

The full opinion is here: http://caselaw.findlaw.com/us-4th-circuit/1497058.html

Another quote from the same document: "BAPCPA ... by adding § 521(d) ... permits creditors to enforce ipso facto clauses in consumer loan agreements secured by personal property if the debtor fails to comply with the provisions of §§ 521(a)(6) or 362(h)."

Relevant sections of the Code (which you know, Amos, since you understood that unless the judge specifically stated that Ford couldn't repo, the only protection you had was the SOI and subsequent signed & timely filed reaffirmation agreement) in case anyone feels like reading it:

This one puts you in default: 11 USC 521(a)(d) --- If the debtor fails timely to take the action specified in subsection (a)(6) of this section, or in paragraphs (1) and (2) of section 362(h) of this title, with respect to property ... which a creditor holds a security interest not otherwise voidable under section 522(f), 544, 545, 547, 548, or 549 of this title, nothing in this title shall prevent or limit the operation of a provision in the underlying ... agreement which has the effect of placing the debtor in default ...

This one says you have to reaffirm or redeem: 11 USC 521(a)(6)---in a case under chapter 7 of this title in which the debtor is an individual ... not later than 45 days after the first meeting of creditors under section 341(a), either--

(A) enters into an agreement with the creditor pursuant to section 524(c) with respect to the claim secured by such property; or

(B) redeems such property from the security interest pursuant to


This one terminates the automatic stay: 11 U.S.C. 362(h) --- (1) In an individual case under chapter 7 ... the stay provided by subsection (a) is terminated with respect to personal property of the estate or of the debtor ...

(A) if the debtor fails ... to file timely any statement of intention .. reaffirm the debt it secures pursuant to section 524(c) of this title

(B) to take timely the action specified in that statement of intention, as it may be amended before expiration of the period for taking action, unless the statement of intention specifies reaffirmation and the creditor refuses to reaffirm on the original contract terms.

[jsofaz]

Wow. I agree with Clevelandmom. I would never buy a Ford after reading this. I hate to say this as I have a lot of family in Michigan, some of whom work for Ford. But I could never support a business who treats their customers so poorly. I was worried about this happening to us with our GMAC auto loan. We did not reaffirm. It's almost 4 months since discharge now. We still have our vehicle. Guessing after 4 months we're safe?????

[debee]

Guessing after 4 months we're safe?????

I think you're safe. Most lenders don't force the reaffirmation. Ford is notorious, and from what I've been reading lately so is Chrysler. Credit unions too.

What a terrible experience, Amos. I'm really sorry that happened to you.

[AlmostAmos]

I'm glad you emailed your attorney's words back to him. He should be ashamed of himself. Have you read In re:Jones? It was a decision by the VA Court of Appeals siding with Chrysler's right to repo when the debtor was not late in payments. I copied this from it: ...

debee - Thx for the detailed response. I came across that same information when I was going through my BK planning process & then during the fight with my attorney to file a blank reaffirmation agreement. Actually, I sent links to applicable cases/decisions to my attorney and was told that I shouldn't worry about this as he has done this for years! One of my last emails to him - I told him "Thanks, I'll get back with you when they come to repo my car". Ugh, being right sucks.

I'm glad I'm getting a positive response from the group on this. I still can't believe what went down @ my house the other night. I went out last evening & had a talk w/ my neighbor. I felt I needed to explain the circus!

Almost time to start calling. I'm sitting here w/ fully charged phones just waiting! ;)

-AA