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Can I Keep My Car if I File for a Texas Bankruptcy?

February 28th, 2020 at 10:10 pm

bankruptcyFor most people in the United States, owning a vehicle is a necessity that allows them to get to work, go to school or even just go about their daily lives. Because of this, those who are struggling to make car payments or who are aiming to file for bankruptcy tend to be worried about whether or not they can keep their vehicle. For most people, keeping your vehicle after a Texas bankruptcy is entirely possible, though it depends on whether or not you are still making payments on your car and what type of bankruptcy you file.

Understanding Secured Debt

The first thing you should understand is that your car loan is a secured debt, which is unlike other types of debt such as credit card debt. A secured debt is one that is backed by physical property used as collateral, such as a vehicle. If you stop paying on your secured debt, your lender has the right to repossess your property.

If you file for a Chapter 7 bankruptcy, you must include all of your assets and debts, including your vehicle, even if you plan to still make payments after the bankruptcy. If you file a Chapter 13 bankruptcy, you can continue to make payments under your current plan, include your car payment into your monthly bankruptcy payments or work out a “cramdown” agreement which allows you to keep your vehicle.

Options for Dealing with Your Vehicle

For the most part, there are three choices when it comes to dealing with your vehicle during your bankruptcy: you can stop making payments on your vehicle, sign a reaffirmation agreement or you can redeem your car.

If you take no actions on your car loan when you file for bankruptcy, you are technically relieved of your obligation to repay your car loan afterward, but bankruptcy cannot remove the right of the lender to repossess your property. So, if you stop making payments on your car after your bankruptcy, you will lose your vehicle.

You can keep your vehicle if you either reaffirm or redeem your car. Reaffirming your car is basically just resigning a loan agreement to keep paying off the remaining balance of your auto loan. Typically, the terms of the reaffirmation agreement are the same as the terms of your original loan unless you can renegotiate better terms, such as a better interest rate.

Redeeming your vehicle will also allow you to keep it and is an especially attractive option for those who owe more on their car loan than what their vehicle is worth. Redeeming your vehicle allows you to purchase your car outright for the current retail value, though it can be difficult for some to come up with a large amount of money all at once.

A Boerne, TX Bankruptcy Attorney Can Help You Keep Your Vehicle

If you are filing for a Texas bankruptcy and you are concerned about whether or not you will be able to keep your vehicle, the best thing to do is to contact a knowledgeable San Antonio, TX bankruptcy lawyer. At the Law Offices of Chance M. McGhee, we can help you understand your rights when it comes to bankruptcy exemptions and your vehicle. Call our office today at 210-342-3400 to schedule a free consultation.

 

Sources:

https://upsolve.org/learn/can-keep-car-file-bankruptcy/

https://upsolve.org/learn/what-happens-to-my-car-loan-after-bankruptcy/

 

Timing: Qualifying for Vehicle Loan Cramdown

September 27th, 2017 at 7:00 am

If your vehicle is worth less than you owe on it, with good timing cramdown could reduce your monthly payment AND the total amount you pay.  


Vehicle Loan Cramdown

“Cramdown” is an informal term for one of the most tangible benefits of Chapter 13 “adjustment of debts” bankruptcy. You won’t find the term in the federal Bankruptcy Code, yet lawyers and judges use it all the time.

It refers to a procedure provided under Chapter 13 law for legally rewriting a vehicle loan.  It results, usually, in reducing both the monthly payment and the total you pay for the vehicle. The more your vehicle is “underwater”—worth less than what you owe on it—the more you benefit from cramdown.

Secured and Unsecured Parts of a Vehicle Loan

Cramdown works by dividing the total amount you owe on your vehicle loan into secured and unsecured parts.

The secured part you must pay for sure. But because that amount is less than the total amount you owe, the new monthly payment amount based on it will naturally be less. You can also often reduce the interest rate. Plus you can usually stretch the monthly payments out over a longer period than the original loan.  These all reduce your monthly payment.

The remaining unsecured part of your vehicle loan you pay only as much as you can afford. It’s just part of all your “general unsecured” debts. Usually you pay these only to the extent you have available money during the life of your case, money not already going either to living expenses or to other more important debts. So, often you end up paying the unsecured part of your vehicle loan just pennies on the dollar.

Combining all this, cramdown gets you to a free-and-clear vehicle for a lot less money.

See Section 1325(a)(5) of the Bankruptcy Code, and the odd “hanging paragraph” referring to that subsection, found right below Section 1325(a)(9).

Non-Timing Conditions for Cramdown

Cramdown only works if your vehicle is worth less than the balance on the loan. You’re “cramming down” the loan amount to the secured amount, so this assumes that the secured amount is less.

It’s also worth emphasizing again that cramdown is ONLY available in a Chapter 13 case, not Chapter 7. Chapter 13 provides a way—through the court-approved payment plan—to divide the debt into secured and unsecured parts, and pay accordingly. Chapter 7 “straight bankruptcy” doesn’t let you do cramdown.

Cramdown also requires the motor vehicle collateral to have been “acquired for the personal use of the debtor.”  (See the “hanging paragraph” referred to above.)  So no cramdown on vehicles acquired for business use.

The Timing Condition

If you meet all the above conditions you still don’t get cramdown without one more timing condition.  You must have entered into your vehicle loan more than 910 days before your Chapter 13 case is filed. (That’s slightly less than two and a half years.)

What’s the point of this timing condition? It wasn’t always part of the law. It was added in 2005 to give a bit more advantage to auto loan creditors. Vehicles, especially new ones, depreciate quickly, especially during their first several years. This 910 –day rule prevents a debtor from financing a vehicle and then doing a cramdown on it quickly.

Conclusion

So be aware of this timing rule when you first go in to see your bankruptcy lawyer. Bring your loan vehicle paperwork (or whatever you have available) to see if and when you qualify for cramdown. You’ll find out how much you can lower your vehicle payment, and how much you can save overall.

 

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