Your Vehicle Loan Options in a Chapter 13 “Adjustment of Debts” Case

Chapter 13 helps much more than a Chapter 7 case IF you’re behind on payments or sometimes if you owe more than your vehicle is worth.

 

Chapter 7 Reminder:

Let’s start by summarizing your options for your vehicle loan under Chapter 7 as laid out in my last blog:

1. Retain the vehicle: Just maintain the regular payments if you’re current. Or if you are behind, pay all new monthly payments right when they are due, AND catch up on ALL back payments so that you are current on the account within a month or two of filing the bankruptcy case. Either way, you will very likely be required to sign a “reaffirmation agreement” requiring you to still pay the vehicle loan under its original terms, including eventually paying the entire balance. You get to keep the vehicle but with all of its debt.

2. Surrender the vehicle: You get the benefit of discharging (forever writing off) any “deficiency balance”–the often large amount that you would normally still owe after the creditor sells off your vehicle for less than the loan balance. The vehicle’s gone but so is all your debt. You let go of the vehicle but lose its debt.

Limitations of Chapter 7

But what if you need and want to keep your vehicle, but are behind and just have no way of pulling together the money to bring the account current within a month or two after filing the Chapter 7 case?  Or what if you really can’t afford the monthly payments but, again, need the vehicle? Or if you owe on it a lot more than it is worth, and so you are reluctant to “reaffirm” and be stuck with paying off that balance?

Some vehicle creditors may be somewhat more flexible—though rarely—by giving you more time to catch up on late payments, or by wrapping those payments into the loan balance. Even more rarely, a vehicle creditor may reduce the balance somewhat to avoid you surrendering the vehicle so that the creditor would get even less.

But these situations are indeed quite rare, and may not even help you enough. Chapter 13, however, can give you much stronger medicine.

“Cram Down” is a Huge Advantage If You Qualify

Chapter 13 gives you the ability, essentially, to unilaterally rewrite your vehicle loan, often with much, much better payment terms. The process has the informal name, “cram down,” because the secured balance of the loan is “crammed down” to the market value of the vehicle.

To qualify to do a “cram down” in a Chapter 13 case you must have started the vehicle loan more than 910 days (about two and a half years) before filing your case. Sounds arbitrary, but if your loan is at least that old (and, as usual, you owe more than the vehicle is worth), then you can do a “cram down”; if the loan is newer than that, you can’t.

Under “cram down” the secured balance on the loan—the amount you have to pay for sure—is reduced to the vehicle’s fair market value. Sometimes the interest rate can also be reduced, and often the loan’s length can be extended. The combined effect of these changes is usually to reduce the monthly payment amount, often greatly. On top of all this, you don’t have to pay any back payments because they are wrapped into the rewritten loan.  

The part of the loan balance beyond the vehicle’s fair market value—the unsecured portion—is paid the same percentage as the rest of your “general unsecured” debts (credit cards, medical bills, etc.). If you are like most people, adding that unsecured portion of the loan to their pool of “general unsecured” debts does not add anything to what they have to pay during your Chapter 13 case. That’s because those creditors usually just get paid as a pool whatever your budget says you can afford to pay during the term of your court-approved payment plan. So adding the unsecured portion of your vehicle loan to that pool of debts tends simply to reduce what each creditor gets out of the same set amount of money you pay to that pool of debts.

With “cram down” usually you pay significantly less than you would have otherwise, and then receive your vehicle free and clear at the end of the Chapter 13 case.

Chapter 13 Advantage Even without Qualifying for “Cram Down”

If your vehicle loan is not yet 910 days old so that you don’t qualify for “cram down,” or if your vehicle is worth more than the loan balance so that “cram down” would just not do you any good, Chapter 13 can still be helpful if you were behind on your loan payments. Why? Because instead of having to bring the account current in a month or two as you would under Chapter 7, you would have many months to do so.

Surrender the Vehicle

Although Chapter 13 often solves many of the problems that Chapter 7 would leave you with for keeping your vehicle, if you just don’t need it, or still can’t afford even the reduced payments, you can surrender it.

The difference from Chapter 7 is as follows. Remember from the beginning of this blog post that when you surrender a vehicle under Chapter 7 the “deficiency balance” is legally written off, without the creditor almost always receiving nothing. Under Chapter 13, in contrast, that “deficiency balance” is added to the rest of the pool of your “general unsecured” debts. But also remember from the discussion above (about the unsecured portion of a vehicle loan in a “cram down”), that in most cases that would not cost you anything more than if you didn’t surrender your vehicle. That’s for the same reason discussed above: because you usually pay the pool of your “general unsecured” debts the same total amount no matter how much debt is in that pool. The other creditors would just get less to make up for whatever money the vehicle loan creditor would get.

 

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Your Vehicle Loan Options in a Chapter 7 “Straight Bankruptcy” Case

For many people, no debt has more practical importance than their car or truck loan.

 

Whether you want to keep your vehicle or get rid of it, and whether you are current or behind on your payments, Chapter 7 bankruptcy strengthens your hand in every way.

The “Automatic Stay” Gives You the Chance to Decide to Keep or Surrender

As long as you file your Chapter 7 case before your vehicle gets repossessed, your lender can’t repossess it once you do file. The same “automatic stay” law that stops all your creditors from calling you, suing you, and garnishing your wages also stop your vehicle lender from repossessing your vehicle—at least for a month or so while you decide whether to keep your car or not, if you haven’t already decided one way or the other.

Surrendering Your Vehicle

If you decide to surrender your vehicle, Chapter 7 bankruptcy is often the best way to do so. The reason is because with most vehicle loans even after surrendering the vehicle you would still owe money to your lender after the surrender, often a much larger amount than you would think. This “deficiency balance” is the amount you owe after the lender repossesses the vehicle, sells it—usually at an auto auction, pays itself its costs of repossession and sale out of the proceeds of sale, and then pays the rest of the proceeds towards your loan’s interest, late fees, and principal balance.

Because of the relatively low sale price of your vehicle at an auto auction, and the relatively high repossession and sale costs, in the end you often have a very hefty debt, and no vehicle. Because at that point you’re understandably not all that motivated (or able) to pay this remaining debt, the lender would then usually sue you to make you pay it.  

 

Surrendering your vehicle during your Chapter 7 case allows you to legally and permanently write off (“discharge”) that entire remaining debt, instead of having it hang over you.

Keep Your Vehicle

If you want to keep your car or truck, whether you are current on your loan, and if not how quickly you can catch up, are crucial.

If You Are Current

If you want to keep your vehicle and are current at the time your Chapter 7 case is filed, and can keep making the payments on time (especially after discharging your other debts), it’s simple: you can essentially keep your vehicle loan out of your bankruptcy case. You’d usually sign a “reaffirmation agreement” stating that you intend to hang onto your vehicle and giving your consent to not discharging the vehicle loan in your Chapter 7 case.

If you owe more on the loan than your vehicle is worth, you should think twice about signing a “reaffirmation agreement.” That’s because doing so makes you continue to be liable on a debt you could be discharging in bankruptcy. Instead carefully consider whether you should surrender it and dump the debt. It’s your one chance to do so. Otherwise you would risk being unable to make your payments later, losing the vehicle to repossession, and owing a large deficiency balance because you had “reaffirmed” the debt in your bankruptcy case.

Unfortunately you can’t “have your cake and eat it too”: you usually can’t keep a vehicle that you owe on without reaffirming the debt. Most conventional vehicle loan creditors insist that you sign a “reaffirmation agreement” for the full balance of the loan, even if your vehicle is worth less than that.

But sometimes, especially with smaller lenders, you may be able to avoid “reaffirming” the vehicle debt, or can “reaffirm” at a lower balance. Talk with your attorney about what’s possible with your own lender.

If You Are Not Current

If you want to keep your vehicle and aren’t current on the vehicle loan at the time your Chapter 7 case is filed, your options are limited. You would usually need to get current very quickly to be able to keep the vehicle—usually within a month or two. Most vehicle lenders will not allow you to skip the missed payments or even to catch up on those payments over time—although a minority of them will allow some flexibility.

But for the majority of lenders who insist on a full “reaffirmation” of the vehicle loan balance, they’ll demand that you get current within weeks after you file your case. One reason is because for a “reaffirmation agreement” to be legally valid, it has to be filed with the bankruptcy court before the debt is discharged, which happens in most cases about three months after it’s filed. So the lender insists that you get current well before that so that the “reaffirmation agreement” can be prepared, signed, and filed at court in time.   

Again, talk with your attorney to find out if your lender is one of the uncommon more flexible ones.

Much greater Flexibility through Chapter 13

If you need or want to keep your car or truck but are behind on payments and can’t catch up within a month or two after filing, consider the Chapter 13 “adjustment of debts” option instead of Chapter 7. Chapter 13 may not only give you more time to catch up on those back payments, but may even substantially reduce your monthly payments, the interest rate, and the total amount to be paid on the loan. I’ll discuss these Chapter 13 tools in my next blog post.

 

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Keeping a Vehicle with a Debt under Chapter 7 “Straight Bankruptcy”

If you owe a debt on a vehicle, Chapter 7 gives you a narrow choice: keep it and pay on the contract, or surrender it and owe nothing.

 

The Bankruptcy Trustee Only Cares about Equity Beyond Any Exemption

In a Chapter 7 case you have two people besides you who could be interested in your vehicle. The bankruptcy trustee could care about any equity you have in the vehicle (the value over the amount you owe on it), but only if that amount is more than what would be protected under the vehicle exemption. There is seldom too much equity if you owe on a vehicle, but check with your attorney to make sure this is not an issue in your case.

Surrendering a Vehicle to the Lender

You may not want to keep your vehicle because you simply cannot afford to keep making the payments or doing so is just not worthwhile considering your alternatives. Or you may be a couple payments behind, and filed your Chapter 7 case quickly to stop your vehicle from being repossessed, but now realize that hanging on to the vehicle is not feasible for you.

You likely know that if you just surrendered your vehicle without a bankruptcy, you’ll very likely owe and be sued for the “deficiency balance” (the amount you would owe after your vehicle is sold, its sale price is credited to your account, and all the repo and other costs are added). That deficiency balance is often much higher than you expect. The Chapter 7 bankruptcy will almost always write off that deficiency balance. Indeed, that is a common purpose for filing bankruptcy.

Keeping Your Vehicle

 If you want to keep your vehicle, generally you must be either current on your loan or able to get current within about 30 to 60 days after filing the Chapter 7 case. You will almost for sure be required to sign a reaffirmation agreement, which legally excludes the vehicle loan from the discharge (the legal write-off) of the rest of your debts. You have to sign that reaffirmation agreement and have it filed at the bankruptcy court within a short period of time—usually within 60 days after your bankruptcy hearing, meaning you have to be current usually a few weeks before that. Then you have to stay current if you want to keep the car, just as if you had not filed a bankruptcy. And also just as if you had not filed bankruptcy, if that vehicle later gets repossessed or surrendered, there is a good chance that you would owe a deficiency balance. So talk to your attorney and think carefully about the risks before reaffirming your vehicle loan.

The Lack of Other Alternative Usually

Almost always—especially with conventional, national vehicle loan creditors—you are stuck with the terms of your original loan contract if you want to keep your vehicle. You can’t reduce the balance of the loan, the interest rate, or the monthly payment. If you’re behind, almost always you must pay the arrearage and be current within a month or two. There can be exceptions, especially with local finance companies and such who would rather minimize their losses by being flexible. So be sure to ask your attorney whether your vehicle creditor has such as history. And if you do need more flexibility—if you must keep your vehicle, and owe more than it is worth, and you can’t afford the payments—ask about Chapter 13 as a possible better solution.

Conclusion

Usually “straight bankruptcy”—Chapter 7—is the best way to go if your vehicle situation is pretty straightforward: you either want to surrender a vehicle, or else you want to hang onto it and are current or can get current within a month or two of your bankruptcy filing.

 

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Qualify for a Vehicle Loan “Cramdown” by Filing Your Chapter 13 Case at the Right Time

Potentially save thousands of dollars on your vehicle loan by filing bankruptcy when it qualifies for cramdown.


This is the final one of a series of four blog posts on the advantages of filing bankruptcy at the legally opportune time. The last three blogs covered the effect of timing on whether you file a Chapter 7 or Chapter 13 case, on which debts can be discharged, and on what assets you can keep. Today’s applies only to Chapter 13 “adjustment of debts” cases, because vehicle loan cramdowns cannot be done under Chapter 7 “straight bankruptcy.”

Chapter 13 Vehicle Loan Cramdown

What’s a “cramdown”? It’s an informal term—not found in the federal Bankruptcy Code—for a procedure provided under Chapter 13 law for legally rewriting the loan to reduce, usually, both the monthly payment and the total you pay for the vehicle. A cramdown, essentially reduces the amount you must pay to the fair market value of your vehicle, often also reducing the interest rate, and also often stretching out the payments over a longer period. These combine to result often in a significantly reduced monthly payment, and an overall savings of thousands of dollars.

Qualifying for Cramdown

First, this only works if your vehicle is worth less than the balance on the loan.

Second, emphasizing again, it is ONLY available in a Chapter 13 case, not Chapter 7.

And third, your vehicle loan must have been entered into more than 910 days (slightly less than two and a half years) before your Chapter 13 case is filed.

Vehicle Cramdown

It’s of course that last condition that creates the timing opportunity. When you first go in to see your attorney, bring your loan vehicle paperwork (or as much information you have) to see if and when you qualify for cramdown, and whether and how much difference it can make for you.

Here’s an example of the dollar difference that a difference in timing can make.

How Good Timing Can Work for You

Let’s say you bought and financed your car 900 days ago—that’s almost two and a half years. The new car cost $21,500. You did not get a very good deal; your previous car had died and cost way too much to repaid, and you had to quickly get another car to commute to work. You put down $500 (from a credit card cash advance), then financed the vehicle for $21,000 at 8% over a term of 5 years, with monthly payments of $425.

Now almost two and a half years later you owe about $11,500. If you wanted to keep the car, and filed either a Chapter 7 or Chapter 13 case before the 910-day mark, you would have to pay the regular monthly payments for the rest of the contract term. With interest, that would cost a total of about $12,650 more.

Consider if instead you waited until just past that 910-day mark and filed a Chapter 13 case then, and could “cram down” the car loan. Assume that your car is now worth $7,500, and again you owe $11,500. The loan is said to be secured to the extent of $7,500. The remaining $4,000 of the loan is not secured by anything. So the $7,500 secured portion would be paid through monthly payments in your Chapter 13 plan. The $4,000 unsecured portion is treated like the rest of your unsecured debts, which are usually paid if and only to the extent that you have extra money available to pay them.

Under cramdown, you pay the $7,500 secured portion at an interest rate which is often lower than your contract rate. Paying a reduced amount—$7,500 instead of $11,500—at a lower interest rate results in a lower monthly payment. That payment is often reduced substantially further by extending the repayment term further out than what the contract had provided, up to a maximum of five years (from the date of filing the Chapter 13 case).

In this example, assuming an interest rate of 5% and a repayment term of five years, the payment on the $7,500 would be less than $142 per month. The total remaining payments on the loan, with interest, would be about $8,492, in contrast to paying $12,650 under the contract. That is a savings of $4,158.

Note that under cramdown, even though the repayment term stretches the payments about two and a half years longer than under the contract, the amount of interest to be paid is often less. That’s both because the interest rate is often lower, and it’s being applied to a lower principal amount (here 5% interest instead of 8%, and $7,500 instead of $11,500).

So, by tactically holding off from filing a Chapter 13 case until after the 910-day period expires, in this example you would reduce the monthly payment from $425 to $141.50, and save more than $4,000 before owning the vehicle free and clear. 

 

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Mistakes to Avoid–Don’t Surrender Your Vehicle or Get it Repossessed

What if you could pay less per month, lower the interest, and pay less until you owned your vehicle free and clear?

 

Bankruptcy as a Game-Changer

Bankruptcy is full of surprises, mostly pleasant ones. The most important reason to see a bankruptcy attorney sooner rather than later is that you will then more likely be able to take advantage of those pleasant surprises.

Vehicle Surrender or Repossession Almost Never Good

Whether or not bankruptcy can save your car or truck, surrendering it without having a well-informed plan about what you are going to do next is almost never a good idea. And putting yourself into a situation in which it gets repossessed can really hurt, both immediately and long-term.

Almost always, if you surrender your vehicle, you will owe money on the debt after your creditor sells the vehicle and credits your account the sale’s proceeds. And you will usually owe much more than you think you will. Sometimes shockingly more.

That’s partly because the vehicle will likely be sold for less than it is worth. The creditor is not trying to be unfair about this, but it’s usually efficient for it to sell repossessed vehicles at an auto auction, where most of the purchasers tend to be used car dealers who can only pay enough for the vehicle to be able to make a profit when they re-sell it. On top of a low selling price, your creditor will tack onto your balance all of its repossession and sale costs, which can really add up. The end result is that you will likely owe a lot of money, and will likely get sued to make you pay it. Once wage and bank account garnishments start, you will probably be forced to consider bankruptcy. As you will see, it’s much better to consider it BEFORE surrendering or losing your vehicle to repossession.

Escaping Your Catch-22

If you need your vehicle, but just can’t afford the monthly payments, you could very sensibly believe you don’t have much choice but to let the vehicle go. You know your contract requires you to make the payments or lose the vehicle. You may have been struggling for months to keep the payments current, putting up with late fees and constant notices or phone calls from the creditor. You might even be thinking about how you can do without this vehicle, especially if you have already fallen behind.

How Chapter 7 Can Help

The main way Chapter 7 “straight bankruptcy” can help is by discharging (legally writing off) all or most of your other debts so that you can more easily afford your vehicle payment. If you are a month or two behind on your payments, filing the bankruptcy case would put an immediate stop to any approaching repossession. You would then have a month or two, sometimes more, to catch up. Chapter 7 allows you to focus your financial energies on your most important debts. If for you that’s your vehicle loan, and if getting rid of your debts would help enough, filing Chapter 7 BEFORE losing your vehicle could well be your best move.

How Chapter 13 Can Help

But admittedly that may not be enough help. You may be able to afford the monthly payments if you had no longer had any other debts, but have no way to make up the missed payments that quickly. Or you might have other important debts that you’re behind on, like taxes or child support, and can’t see hanging on to your vehicle in the midst of all these financial pressures. And you might not even be able to quite afford the monthly vehicle payments even with no other debt obligations.

Chapter 13 may be able to cut through ALL of these problems.

First, Chapter 13 can give up to 5 years to catch up on the back payments. Under some circumstances, you might never even need to catch up on them.

Second, Chapter 13 often allows you to pay your vehicle payment first, before other important debts like taxes and support.

And third, if your vehicle loan was entered into more than 910 days before your Chapter 13 case is filed (that’s about two and a half years), you can do a “cramdown” on the vehicle loan: lower your monthly payment, and likely pay less overall for the vehicle before owning it free and clear. How much the monthly payment can be reduced depends on a bunch of factors, but especially if your vehicle is worth significantly less than you owe on it, the payment can often be made much lower.

And if you qualify for a “cramdown” and you’re behind on your vehicle loan at the time you file your Chapter 13 case, you don’t ever have to catch up on those missed payments.  They are just part of the re-written, new “crammed down” obligation.

Take Charge and Choose Your Best Option 

So you can see that you might NOT want to surrender a vehicle or allow it to be repossessed, if instead you could keep that vehicle through either Chapter 7 or 13. That may be especially true if you qualified for a lower monthly payment under the Chapter 13 “cramdown.”

Often, having a reliable vehicle is essential to achieving a successful re-start of your financial life.  Before you lose that essential part of your financial plan, come see us to find out your options. 

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