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There are several factors to consider when dealing with auto loans in bankruptcy. The following information may help guide you when determining whether a Chapter 7 or a Chapter 13 bankruptcy is in your best interest. For instance: Are you current on your payments? What is the interest rate on your loan? What is the duration of your loan? Can you afford to keep your car?
If you have questions about auto loans in bankruptcy and you would like an immediate answer, please give us a call at 785-379-3600 for a FREE Consultation over the phone or in person or you can email us now.
In a Chapter 7 Bankruptcy, you will have to decide whether you would like to surrender your vehicle, or whether you intend to reaffirm on the debt. When you reaffirm on the debt, the creditor will have you sign a reaffirmation agreement, stating the terms of the loan. The court will allow you to enter into a reaffirmation agreement if you can show that it is not an undue hardship.
Generally speaking, if your monthly budget shows a surplus equal to or greater than the car payment, an undue hardship is not presumed. Also, the lender is under no obligation to enter into a reaffirmation agreement. If you are behind on your payments, your creditor may also refuse to enter into such an agreement with you.
One important thing to keep in mind if you do enter into a reaffirmation agreement: You are back on the hook for the debt. That means if you fall behind on your payments and your vehicle is repossessed, that debt will be considered post petition debt, and thus non dischargeable.
In general, most, if not all post petition debts are non dischargeable. This means that your creditor can now pursue collection efforts against you, such as harassing phone calls and even garnishment.
In a Chapter 13 Bankruptcy, you have a few more options at your disposal. You can choose whether to keep or surrender the vehicle just like in a Chapter 7; however, the similarities end there. If you decide to keep your vehicle, you will have the choice of paying back the auto loan either through the plan or outside the plan.
If you propose to pay your car loan outside the plan, you will be paying the vehicle back under the original contract terms: The duration and interest rate will stay the same. There are a couple reasons why someone would choose to pay their auto loan outside the plan.
If you pay your vehicle back through the plan, you will be able to pay back the loan at the “till” rate, which is set by the government. Currently, the till rate is 4.75%. Many people who have poor credit are unable to get low interest auto loans.
For example: Lets say you got a $15,000 auto loan at Acme Car Loans, Inc at 18% interest over 5 years. If you pay your car loan through a Chapter 13 plan, you will only have to pay 4.75% interest instead of the original 18%. You may even be able to pay your car off sooner, and with smaller payments.
One of the most powerful feature of a Chapter 13 is the ability to “cram down” auto loans in bankrutcy. A cram down allows you to pay back the value of the automobile as opposed to the loan amount. The catch is IF and ONLY if you have owned the vehicle for over 910 days (two and 1/2 years). If you have owned the car for one day less than 910 days, you can only cram down the interest rate.
Lets take our previous example. $15,000 auto loan, 18% interest, 5 year term. You have owned the vehicle for over 910 days. Lets also assume that NADA book value of your car is $10,000. In this example, you can pay back the value of the car through the plan at 4.75% interest – a substantial reduction.
Chapter 7 & 13 treat auto loans in bankruptcy differently. Are you current? High Interest rate? Can you afford it? Feel free to give us a call at 785-379-3600 for a FREE Consultation over the phone or in person or you can email us now.
Chris W. Steffens, Attorney at Law is a Bankruptcy Lawyer serving Topeka, Lawrence, Overland Park & Kansas City KS. I’ve filed hundreds of cases and spent years honing my practice at one of the largest consumer bankruptcy firms in Kansas. I bring with me my exceptional knowledge and experience and I treat every client with the respect and care they deserve.
Disclaimer: The information you obtain at this site is not legal advice. You should consult an attorney for advice regarding your individual situation. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established. We are a debt relief agency. We are attorneys who file bankruptcy cases.