Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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Car surrender question

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  • Car surrender question

    Hi all, as some of you know I surrendered one of my two vehicles to Well's Fargo in my Chapter 7. My case is now closed and I am long past discharge but the car remains in my driveway. From my conversations with Wells Fargo they seem to have little to no interest in getting the car. In fact they requested I stop calling and asking about it. I no longer use the car, it has not been started in a couple months and would not start at this point with Harry Potter's magic wand.

    Do I need to keep the vehicle registered and insured? It seems beyond ridiculous to pay out over $100 to register the car, let alone over $100 a month to insure it. Theoretically this could go on for years if Wells Fargo chooses not to come get it. I don't want to put myself in a bad position but that money would mean a lot to me right now. What should I do?

  • #2
    If the car no longer runs, then by definition it isn't going to incur any liability, so why pay to insure it? It also isn't going to be driven or parked on any public roads, so why pay to register it? The loan was discharged, which means not only the debt, but also the contractual obligation to maintain full-coverage insurance. I would cancel the insurance and registration, and simply let the car sit and see what happens. If they don't pick it up in a year, then I'd probably junk it if it has no value.


    • #3
      The car is still titled to you. There is liability as long as it is. There is a good possibility that they will never come get the car. Which means, you may not be able to sell it but it could be a great back up vehicle. I had a neighbor who went through Chapter 7 at least five or six years ago, they never came and got one of his cars. He still drives it. The first couple years he parked it in the garage so they couldn't repo it without contacting him. They never did. Now the bank that owned the paper has changed hands a couple times and he doesn't worry about it any more. He parks in the driveway again. It would be an easy pick up for any repo guy but there has never been an interest.


      • #4
        Can you ask the court to compel pickup or abandonment of the car?


        • #5
          Originally posted by Maria80386 View Post
          Can you ask the court to compel pickup or abandonment of the car?
          No. A creditor can not be forced to exercise their right, under the installment contract, to repossess the vehicle. In some very fact-specific cases, a creditor can be made to choose to release the lien or repossess the vehicle, but only in cases where the creditor is otherwise attempting to collect the debt by not taking an action. In Pratt, there were very fact-specific reasons that the court found that the position of the bank was a violation. See Pratt v. General Motors Acceptance Corp. (In re Pratt), 462 F.3d 14 (1st Cir. 2006).

          But, see Canning v. Beneficial Maine, Inc. (In re Canning), 706 F.3d 64 (1st Cir. 2013), where the Pratt case was discussed and the first circuit wrote that:

          Despite its broad scope, the discharge injunction does not enjoin a secured creditor from recovering on valid prepetition liens, which, unless modified or avoided, ride through bankruptcy unaffected and are enforceable in accordance with state law. Canning v. Beneficial Maine, Inc. (emphasis added is mine)
          Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
          Status: (Auto) Discharged and Closed! 5/10
          Visit My BKForum Blog: justbroke's Blog

          I am not an attorney. Any advice provided is not legal advice.


          • #6
            Thanks for the information everyone. I am just unclear of whether or not I need to insure or register the car. It is not in running condition at present and will not be used. I have had different opinions from different sources. My lawyer calls it a gray area.

            The other side of a bankruptcy is a difficult place to be-as I know many on here understand very well. I am better off than before but things are still tight and nobody is going to give me credit. An extra $100 or so a month doesn't sound like much but it would really help. Plus as I said before, this could go on for years. At some point it seems to me ludicrous to keep paying.

            I am also unclear on something else. Lets say that a tree falls on my car tonight (it is still insured). The insurance company comes out and totals the vehicle-cuts me a check for $3500. Who gets that money? I don't own the car after all. I know this is unlikely to happen but who I am really insuring the vehicle for? Myself or the bank?


            • #7
              Check if your insurance company offers a rate for a stored vehicle. Mine does, reducing the rate 90% for stored and for under 3000 miles driven yearly.


              • #8
                Originally posted by mmeier79 View Post
                Thanks for the information everyone. I am just unclear of whether or not I need to insure or register the car. It is not in running condition at present and will not be used. I have had different opinions from different sources. My lawyer calls it a gray area.
                If you see my post before yours, you'll see why it's a gray area. If this lender is a credit union, parking it in their parking lot and giving them the keys may effectuate a voluntary surrender. Despite the lien, there simply is nothing that compels a lender to exercise any of their rights to repossess.

                What you could try, through your attorney, is the Pratt approach (see above). The debtors wanted to junk the car, but GMC refused to release the lien or take the car (because the car was... junk). GMAC, instead, wanted the debtors to pay to remove the lien. The debtors ran back to the court and said that this GMAC position was a violation and the court agreed as well as the 1st Circuit Court of Appeals when GMAC appealed.

                Simply put, if the car is junk and needs to be junked (or donated to charity), write a formal letter to the lender and tell them that it needs to be junked and you need the title to junk the vehicle. If they refuse, then you may have a Pratt situation.
                Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
                Status: (Auto) Discharged and Closed! 5/10
                Visit My BKForum Blog: justbroke's Blog

                I am not an attorney. Any advice provided is not legal advice.


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