Reaffirmation of an auto loan

[Floridagail]

AlmostAmos

Were you a single filer or married filing with 2 cars?
My BF is getting ready to file in 6mos and he bought a new truck for work,and a car personal use , while his credit is good. 6 yr loans on both.

He is above medium so we are hoping to use them to lower our dmi , if he has to file 13. We are not sure if he can claim 2 cars in 13.

[momofthree]

I see a bigger problem than whether or not you're able to reaffirm. This car could potentially push you into ch.13. If you are arguing that you can easily afford a $944 car payment, then they can throw that against you & make you give up the car. If you no longer have the car, then you can easily afford a $300 car payment and a $600 trustee payment. Just something to think about.

[AlmostAmos]

Floridagall - We were a married filing w/ 2 cars. If he files alone, I doubt he'll have a chance of reaffirming 2 of them. But, I have seen a few people who have been able to use the payments to bring down their budget numbers on their schedule j.

[wnguyen]

Hi Tom and Chris

I'll definitely remember 11 U.S.C. §541(c) and Tom, I have one more question because what Chris said suddenly made me sweat again. Should I ask my lawyer that I'm signing the reaffirmation and she'll disapprove it or should I just sign it and then rescind it within 60 days. I only have less than 2 weeks until discharge date.

[tcreegan]

Hi wnguyen,

If you marked reaffirm on the statement of intentions, I wouldn't sign, if they don't make a move by discharge you are legally in the clear.

Tom in Colo

[CreditCretin]

This is all very interesting to me. I got a letter from Toyota with the same "Reaffirmation, Redemption or Surrender" text in it. I requested my reaffirmation, the attorney approved it and I sent it back to Toyota immediately, weeks ago. Now, we are only days away from our final day for objections and the document still isn't posted on Pacer. Still don't understand why, if Toyota is insisting on a reaffirmation, that they wouldn't file it in a timely manner.

[ladycee]

Hey CreditCretin,

Yup....gets curioser and curioser doesn't it? Toyota faxed it to my atty (they said) last Thursday but he has not returned my call yet and my 341 is in 2 days....10/6. I was hoping to have it filed at the 341 meeting, but atty has to sign it first. Isn't the atty required to file it with the Trustee in court?......Does PACER list it as filed?

I question if it is valid if YOU mailed it to them, as it must be approved by the Trustee, not just the atty. The atty can approve it but that does not guarantee that the Trustee will approve it and that is the bottom line. I (think) if the Trustee refuses to approve it you can then request a hearing with a judge.

Can someone else chime in here? thanks

When was your 341? Don't waste time about it...there's a time limit.

Good Luck,

Chris

[tcreegan]

Hi ladycee,

The reaffirmation gets filed w/ the court clerk, it can be filed by the debtor, lender, or lawyer (but not all three )

It needs to be approved by the lawyer (usually not) or the judge (and of course by the lender and debtor, duh)

It is supposed to be filed within 45 days post-341 meeting, this time frame doesn't seem too strict, but definitely before discharge.

You have a 60 day 'cooling off' period where you can rescind the reaffirmation.

It should show on PACER as soon as the court staff can get it uploaded.

If the lender lets it go past discharge, the terms of the pre-petition contract hold.

Whew! Hope that covers it....

Tom in Colo

[CreditCretin]

In my case Toyota sent a letter to my attorney saying I needed to reaffirm, redeem or surrender. The attorney mailed me the notice and asked me if I wanted to reaffirm to call Toyota and request the reaffirmation. I did this, and Toyota sent the filled out reaffirmation agreement to my attorney who signed it, and sent me instructions on what to sign, etc. The letter from Toyota said to send it back to them, and even included a prepaid and self addressed envelope. I signed it, sent it back and called Toyota a few weeks ago to confirm that the got it. I (stupidly) didn't send it with a return receipt requested They did say they had it and were processing it, but that was weeks ago and like I said our last day for objections is this week and I don't see it on Pacer yet. I am assuming our discharge will be forthcoming in the next few days, so I don't know what will happen if Toyota doesn't get the document filed before we are formally discharged. Maybe I will call my attorney's office tomorrow to see if I need to do anything else. I just don't want any surprises and come out of a store one day and the car be gone, even though I did everything that they asked me to do, and my attorney signed it, etc.

[wnguyen]

Thanks Tom. You sound as good as a lawyer If everything goes well, my discharge date should be sometime late next week. Can't wait.

Chris, if my car loan with Toyota had as much time (I mean not much ) as 18 months like you, I would definitely reaffirm. Unfortunately, I still have 45 months left to go.

[ladycee]

Hi all,

Yes thanks Tom.....do you happen to have a Link where we can read USC 541 (c)? much obliged

Wnguyen: 45 months is only a little bit more than double 18 months. I think it depends on the amt of pmt, and your ability to pay that. Hopefully, you are not behind in payments? That I understand is KEY. If you have missed any payments they may not want to let you reaffirm. I thought I saw some postings in the forum where they negotiate to let you pay back arrears in the Reaffirmation agreement, but that depends on your lender.

Had my 341 today and I think I was a dufus....we'll see. My mtg company "said" they faxed the Reaff to atty, but called them again cause atty says he never got it. Turns out they were faxing it to the wrong #....could be the same story with Toyota, but so far they have not answered my calls....

Good luck

Chris

[wnguyen]

Hi Chris

In this economy, I don't believe in anything, even my own guts. I know in the next 3, 4 years things might be different but now I just want to stay on the safe side and bk is my last falling net.

About reaff, you are right. Toyota said they won't agree to a reaff if you're falling behind on your payments. I'm not behind on my payments but I want a little insurance

[mb10240]

Anybody know if a reaffirmation will be allowed if I'm filing an individual bankruptcy and I'm unemployed, but my wife has a considerable income? My car payment is current, around $290/mo., and there is possibly equity in the car.

[tcreegan]

Hi all,

If the lender bungles the reaffirmation and it is not in place by discharge, you have nothing to fear. They can't ask for one and they (and you) are bound by the terms of the pre-BK contract.

Hi mrbrown2195,

Do you have an attorney to advise you? I think the wife's income is going to be a problem for you even if you file separately. The BK asks for household income....to exclude her income it has to be going to a 'sole and separate' obligation acquired before the marriage, a student loan for example. One spouse filing separately creates a whole 'nother can of worms....a good attorney can eliminate a lot of potential problems.

Good luck to all,

Tom in Colo

[mb10240]

Hi mrbrown2195,

Do you have an attorney to advise you? I think the wife's income is going to be a problem for you even if you file separately. The BK asks for household income....to exclude her income it has to be going to a 'sole and separate' obligation acquired before the marriage, a student loan for example.

Hey Tom,

As mentioned in my signature, I'm an attorney, but I don't normally practice bankruptcy. I did however consult with a bankruptcy attorney yesterday who suggested that even with my wife's income, an individual Ch7 filing should not be a problem, and I shouldn't have a problem reaffirming the car. While I completely understand that "an attorney who represents himself has an idiot for a client," I simply cannot afford any of the local bankruptcy attorneys, nor do I qualify for legal aid's assistance, so I'm just going to have to do this on my own.

I'm aware that household income is used in calculating our eligibility for Ch7, and we do qualify. I guess my question is if the Court would consider my wife's income when deciding whether or not to allow the reaffirmation agreement?