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Can the creditor retain, delay, or refuse to return my vehicle after chapter 13 filing and notice?

Visalia, CA |

This is a second filing in the last 12 months as previous case was dismissed for non-payment of plan payment (circumstances now changed.) Creditor moved vehicle to a different city, refused to speak with me (pro per), and said they will get back to me at their convenience when they have reviewed my file. They did say it would take several days to return the vehicle. They also accused me of wanting a "free" car berated me for filing. I know the stay expires w/in 30 days.

Attorney Answers 3

Posted

You think there is a violation of the say but I don't understand the timing. Was there a say when they repossessed the car or was the car taken in the interim period between filings?

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9 comments

Asker

Posted

The car was taken in between filings.

Michael Avanesian

Michael Avanesian

Posted

Then there is no violation right? Unless you think those berating comments are the violation.

Asker

Posted

The issue I propose is the violation is in the fact that they are refusing/delaying to return the vehicle after notice of the filing of the chapter 13.

Michael Avanesian

Michael Avanesian

Posted

Unless you're claiming some state law reason for why they need to return the vehicle to you, there is no bankruptcy reason for needing to do so.

Asker

Posted

I have to respectfully disagree, under 362(a)(3), a creditor who exercises dominion or control over property of estate has violated the stay. There are cases that reflect specifically the retention or refusal to willfully turnover a debtor's vehicle violates the stay and subjects a creditor to sanctions, that is unless I am reading this all wrong.

Michael Avanesian

Michael Avanesian

Posted

Cite the case, I am interested. I believe repoing a car, before the bankruptcy, means the car is not property of the estate.

Asker

Posted

Here is one case that speaks on the issue and then you need to give me a job so I can pay my bills...just kidding.... Thompson v. General Motors Acceptance Corp., LLC, 566 F.3d 699 (2009)

Michael Avanesian

Michael Avanesian

Posted

I did not know the answer to this question (I primarily work on corporate bankruptcy matters) so I asked two seasoned attorneys who gave me the same answer. One was a former Chapter 13 staff attorney to boot. Maybe we need to hire you! I would immediately file a motion to reimpose the stay and follow through with a motion for violation of the stay or adversary, whatever is appropriate for your judge.

Asker

Posted

Now that is the best answer of the day! I'm a 3rd year and will be calling when I graduate.

Posted

If they do, you will need to take legal action within the bankruptcy to enforce your rights. Doing this pro se will not be a picnic. Hope this perspective helps!

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4 comments

Asker

Posted

I will be filing a motion to extend the stay next week. Their behavior seems to assert control over property I am entitled to. My understanding is that this is a violation of the stay and may subject them to punitive damages if the court finds the acts willful or malicious, correct?

Dorothy G Bunce

Dorothy G Bunce

Posted

That's right, but with an attorney representing you, your actual damages are substantially increased.

Asker

Posted

This is because I would be entitled to all attorney fees?

Asker

Posted

Just for clarity, the car was taken in between filings, but I don't see that as a big issue as the creditor has been noticed of the filing and is now stalling in its return.

Posted

When did they take the car: before or after filing? Have you sought an extension of the stay? What is their reasoning for repo-ing the car? How do you treat the debt on the car in your new plan?
You may need to file a motion for sanctions for violation of the stay, or a motion for turnover. Without knowing more about the issue, it's hard to say what you should be doing, other than obtaining counsel to address these concerns and make sure you understand and can enforce your rights.

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2 comments

Asker

Posted

The car was taken in between filings for non-payment. I will be filing a motion to extend the stay next week. I have not submitted a plan yet. Will also do that next week. I will treat the plan as a secured debt. It is my understanding that any exercise of control or any collection action is in violation of the stay and subjects the creditor to sanctions and possibly punitive damages based on the treatment by the creditor as evidence the violation was not only willful but malicious.

Asker

Posted

"Car" as a secured debt.

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