bankruptcy car loan consumer bankruptcy
Under the new bankruptcy law, what will happen on my car loan?
Car loans are harder to write off. Under Chapter 13, debtors must repay the entire car loan if they bought a car within 910 days of the bankruptcy filing. For example, if you had an outstanding balance of $5000 on a car loan whose blue book value was only $3000, you would be required to pay the entire $5000 balance (assuming you want to keep the car) if the car was purchased less than 30 months of filing.
Cars are also harder to redeem in Chapter 7 cases, since the law now requires paying the lender the retail replacement value of the car. That value is generally higher than the private sale value that was commonly used under prior law. It remains possible for a debtor to surrender a car when keeping up the payments will be impossible.
BAPCPA creates a formal way to assume a personal property lease, such as a car lease, in a Chapter 7 case. The lease will be deemed rejected if the case trustee fails to assume it within 60 days after filing. At that point, the debtor may notify the creditor that the debtor wishes to assume the lease. The creditor may, at its option, notify the debtor that it is willing to have the lease assumed and may condition the assumption on cure of any outstanding default. The debtor then has 30 days after the creditor’s notice to send a further notice that the lease is assumed.
In some districts, an informal “fourth” option (besides redemption, reaffirmation or surrender) has been in use, whereby the debtor simply continued to make loan or lease payments on the original contract terms. BAPCPA purports to abolish this option, and some car lenders have communicated their intention to require debtors to make an election between the three statutory options. Some other car lenders are willing to go along with the fourth option anyway.
The means test for Chapter 7 debtors and the disposable income calculation for above-median Chapter 13 debtors take account of car loans in a peculiar way. In calculating the expense deduction for secured debts, you must add up the payments for the next 60 months and divide by 60 to calculate the deduction. To see how unfair this is, imagine that you have just 6 more payments to go on a car that’s almost 5 years old. You will be allowed to deduct just one-tenth of your actual monthly payment in figuring out the means test, even though you will probably have to buy a new car within the next few years. A bankruptcy lawyer is not, however, allowed to advise you to buy a new car before filing, because Congress has seen fit to forbid “debt relief agencies” from advising someone to incur new debt. You might never understand this problem if you hadn’t read about it here.
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