Sometimes your decision to file bankruptcy arises from your realization over a long period of time that your debt is out of control and that you are unlikely to have the income necessary to pay off this debt anytime soon. In other situations, bankruptcy may have been on your radar but you were not planning on filing right away, but something has happened to change your plans.
As your attorneys, we are people too. Your frustrations and anger become our concerns when we accept you as our client. Nothing gives us more motivation to fight for our clients than news of a vehicle repossession.
You may already know that the filing of a bankruptcy will stop a repossession from happening – but did you know that we can help even if the repossession has already happened?
Here is some good news – if your car or truck was repossessed within the last week or two there is a very good chance that we can use the power of the bankruptcy laws to get your vehicle back. Ginsberg Law Offices uses the strategy of a Chapter 13 bankruptcy combined with a special lawsuit filed in Bankruptcy Court called a Complaint for Turnover to recover your vehicle. Chapter 13, as you may know, functions as a repayment plan. A repayment plan can only work if you have the income to pay your bills and to pay your monthly chapter 13 payment. If you have a new vehicle, and no way to get to work, you cannot perform your obligations under Chapter 13. Our goal is to convince the judge that your vehicle is essential to the successful functioning of your chapter 13 plan.
Don’t Delay Taking Action When Your Vehicle is Repossessed
One of the most common emergency events we see at Ginsberg Law Offices has to do with a vehicle repossession or threat of vehicle repossession.
Under Georgia law, vehicle lenders are free to use self help, i.e., repossession if you are even one day in default on a vehicle installment contract. Vehicle sales contracts often contain fine print which provides that your account will be considered delinquent if you are even a few days late.
Vehicle finance companies are not required to give you any notice that they intend to repossess your car or truck and repo agents who do contact you will often mislead you (in other words, lie) about how much time you have before your vehicle is seized.
- Car dealers – both new car dealers and used car dealers – pay lobbyists to influence Georgia legislators to enact laws friendly to the vehicle finance industry. When you are in default, therefore, the law is not on the side of the consumer.
First Tier vs. Second Tier Lenders
Our experience has been that first tier lenders, such as GMAC, Ford Motor Credit, Toyota Motor Credit, etc. generally will not actively pursue repossession until you are about 2 months behind. They will be quicker to grab a vehicle if the loan is relatively new or if your credit is below average.
Generally, if you are financing your vehicle with a first tier lender and you fall behind because of an unexpected circumstance, you can delay repossession and possibly work out an extension by communicating regularly with the lender directly.
If you avoid the finance company’s phone calls or if your loan goes much beyond two months delinquent, however, you run the risk of repossession. Again, your lender can grab your vehicle if you are even a day late, so do not assume anything.
Second tier lenders such as buy here/pay here lots, used car divisions of dealerships and independent dealerships will be much faster on the trigger when it comes to repossession. Used car dealers argue that they have assumed a greater risk by offering financing to credit-challenged customers and thus they need to act quickly to protect their investment.
Whatever the reason, used car dealers – and especially “buy here/pay here” companies – will repossess your car or truck if you are even a day or two late. You should also not expect much cooperation from these dealers when it comes to getting your vehicle back.
Regardless of who issued the loan, you should not assume anything. The minute you are late with your payments, you run the risk of repossession.
After your vehicle has been repossessed, the lender does have to give you notice prior to selling the vehicle at auction. This notice is called a “ten day letter” and it provides that you have ten days from receipt of the letter to pay off the loan plus repossession fees and charges. After this ten day cure period, your lender can sell your car at an auto auction and your ownership rights terminate.
In theory, therefore, your vehicle could be repossessed and it could be gone forever within two to three weeks.
How Bankruptcy Can Help
The minute you file bankruptcy, immediate court protection in the form of the automatic stay goes into effect. The automatic stay protects you from any adverse creditor action, even if the repossessing lender does not have official court notice.
- Note that the automatic stay may not apply if you have filed repeated bankruptcy cases in the past.
If you are behind on your payments and you sense that a repo agent is looking for your vehicle, a bankruptcy – usually we would file Chapter 13 for this purpose – will protect you from repossession.
If your vehicle has already been repossessed, but not yet sold at auction, Chapter 13 may allow you to get your vehicle back and pay your loan in your Chapter 13 plan.
Obviously, you will have more options if we can meet before your vehicle has been repossessed, or before the repo man is circling your block. Call us at 770-393-4985 to discuss.