Clients often find themselves in need of debt relief due to a car loan gone bad.

Modern society requires owning and maintaining a car, which sometimes becomes a devastating financial burden. Lenders are quick on vehicle financing knowing that borrowers prioritize auto transportation over most other financial obligations. Even borrowers with bad credit are included in auto finance packages with high interest rates to compensate aggressive lenders for the added risk.

Financial difficulty often arises from car financing. The happy car buyer pulls his new vehicle off the lot almost 100% financed. As the saying goes, almost immediately afterward, the value of the new vehicle depreciates by several thousand dollars before it hits the road.

Car transportation costs $4,000.00 to $6,000.00 annually, including auto loan payments, liability and collision insurance, repairs and maintenance, and gasoline.

The chaos begins when an unexpected non-warranty car repair or car accident unexpectedly and substantially decreases the value of the vehicle well below the outstanding loan balance owed to the bank. Or, perhaps more harmlessly, we trade in for a new vehicle where eager car dealers and lenders agree to take your old vehicle in trade, and toss in the remaining outstanding balance on your old car loan (for a slightly higher payment). on the back-end of your new car loan leaving the new car buyer considerably ‘upside down’ on their new vehicle purchase.

These situations leave the borrower in a position where a significant portion of the income is dedicated to covering an unsecured auto debt obligation that is not serving to sustain the modest costs of family living necessities.

Under certain circumstances, relief from these devastating financial predicaments can be obtained through a bankruptcy filing.

CHAPTER 13 CRAM DOWN PROVISIONS

Under Chapter 13 of the United States Bankruptcy Code, Debtors may “reduce” the unsecured portion of their auto loans to the fair market value of the vehicle collateralizing the loan. This requires Debtors to pay only the secured portion of the auto loan, but the unsecured balance is treated as a general unsecured creditor that provides a substantial benefit to the Debtor by allowing them to pay only a small fraction of the unsecured portion of the loan. auto loan debt. what is owed

As an example, let’s say our debtor owns a car worth $10,000.00 and there is a car loan with a payment balance of $20,000.00. In this scenario, the loan is only partially guaranteed. The auto lender is insured only to the extent of the value of the vehicle or $10,000.00. The remaining balance of $10,000.00 on the loan is unsecured. In this situation, the Bankruptcy Code gives the Borrower the right to cut off the unsecured portion of the auto loan and treat that portion of the loan as unsecured. Therefore, if the general unsecured creditors only received a 20% dividend, the auto lender would receive only $2,000.00 in their unsecured portion of the auto loan.

These situations become complicated between the Borrower and the Lender because disagreements often arise over the correct value of the vehicle. Your bankruptcy attorney will need to negotiate an appraisal agreement prior to confirmation of the Debtor’s Chapter 13 plan.

Valuation is governed by the provisions of the United States Bankruptcy Code, specifically 11 US Code § 506 – Determination of Secured Status.

11 USC §506(a)(2) specifically states:

“If the debtor is an individual in a case under chapter 7 or 13, such value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date the petition is filed. without deduction With respect to property purchased for personal, family, or household purposes, replacement value shall mean the price a retailer would charge for property of that type considering the age and condition of the property at the time it is valued. ” emphasis added

The Cram Down provision under the bankruptcy code also provides for a reduction in the interest rate on the car loan. Borrowers often find themselves shelling out huge car payments used to cover the exorbitant interest rates auto lenders often charge risky borrowers.

An interesting exception was enacted under the 2005 amendments to the United States Bankruptcy Code prohibiting cram downs when the car loan was originated within 910 days (2 1/2 years) of the filing date for Chapter 13 bankruptcy. [see 11 U.S.C §1325(a)(9)]. Debtors should consider the timing of a Chapter 13 filing if they want to escape the burden of onerous auto loan debt. Bankruptcy rules require that auto loans taken within 2 1/2 years of the bankruptcy filing be repaid as agreed.

CHAPTER 7 REDEMPTION

Cram downs are not allowed under Chapter 7 bankruptcy (or ‘straight bankruptcy’). But, Chapter 7 debtors can ‘redeem’ personal property under 11 USC §722.

11 USC §722 states the following:

“An individual debtor may… redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempt pursuant to section 522 of this title or has been abandoned pursuant to section 554 of this title, by paying to the holder of said lien the amount of such holder’s permitted secured credit that is secured by said lien in its entirety at the time of redemption.” emphasis added

However, redemption can be difficult under Chapter 7 because debtors must prepay a lump sum of cash sufficient to pay off the secured portion of the auto loan as measured by the fair market value of the vehicle at the time the Debtor looking to redeem the vehicle. Chapter 7 does not allow for a loan restructuring, but sometimes the auto lender will accept payments over time, but usually within a short period of time.

CONCLUSION

If your vehicle is worth less than what you owe, bankruptcy options may be advantageous in allowing you to keep your vehicle and move toward better financial health.

Chapter 13 can lower or “cram” your loan balance and interest rates, lowering your car payment and making it affordable. Chapter 13 also allows you to restructure past due auto payments and spread them out over the term of the Chapter 13 plan so that you can catch up on past due payments within your personal financial means.

Chapter 7 bankruptcy does not accommodate restructuring loan payments, but the redemption provisions of §722 allow debtors to purchase their vehicles out of bankruptcy for the fair market value of the vehicle, leaving the portion unsecured. of debt discharged under Chapter 7 bankruptcy.