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Lienholder's recourse after discharged bankruptcy? Business Bankruptcy

Discussion in 'Bankruptcy Law' started by nikkiwill, Nov 2, 2010.

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  1. nikkiwill

    nikkiwill Law Topic Starter New Member

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    I was discharged from a chapter 7 bankruptcy about a year and a half ago. Included was a truck that was not reaffirmed. Anticipating the creditor repossessing the vehicle, i purchased another truck. Since then I've moved, leaving the truck included in bankruptcy behind. Now they are harassing me 4 the truck. What recourse does the lienholder have?
     
  2. army judge

    army judge Super Moderator

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    You had a duty to return the truck to the lender.
    If the truck has been purloined, you COULD be financially responsible.
    I don't think the lender will come after you, but a scum sucking debt collector might.
    If you had a lawyer for the bankruptcy, you might want to speak with the attorney that handled your bankruptcy!
     
  3. esterlydsl

    esterlydsl New Member

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    Were you not suggested anything by your lawyer before taking those steps? If they have been harassing you for the truck, it's high time to find out a solution for it. None other can handle your case in a better way then your bankruptcy lawyer.You should tell everything to him and sort out the best method of getting out of this problem.
     
  4. fredrikklaw

    fredrikklaw Moderator

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    NIKKIWILL:

    The lien holder’s recourse is not to harass you, in fact, he, along with all the other creditors whose debts were discharged, is bound over by the bankruptcy court’s order to stay away from you and not to make any attempts at collection. Basically, the lien holder is now well in contempt of court. If he was so anxious to reclaim the collateral, he should have appeared at the Creditors Meeting which he did not, and will now have to go through a long, two-step legal process to get it back.

    First and foremost, you should write a letter to the lien holder (enclosing a copy of your discharge paper) and explaining (as a courtesy) in no uncertain terms that he is enjoined from contacting you and that he has already subjected himself to a $10,000 fine and a civil action for ignoring the Bankruptcy Court’s order and that he should cease and desist all collection actions immediately. Finish your letter with the stern mention that you will not tolerate this situation anymore and will report any further contact from him to the Bankruptcy Court’s trustee who handled your case.

    This is his problem and not yours and you should not put up with such flagrant disregard for the law of the land. As a creditor holding a secured debt who wants the collateral back, he should first file with to the Bankruptcy Court a Motion for Stay of Discharge, and once (and if) granted, can move against you in the regular course of law to repossess the vehicle. But whether he does this or not and whether the truck is finally reclaimed or not, you are not now, nor will you ever again be financially responsible to the lien holder in any shape or form. All he can do is to get the truck (the security/collateral) back and that is it.

    fredrikklaw
     
    Last edited: Nov 7, 2010
  5. despritfreya

    despritfreya Active Member

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    Wrong. OP clearly states that the lien holder is asking for its property back, not payment. The lien holder has the absolute right to demand the return of its property. OP should have made arrangements for the surrender of the collateral and must do so now. There is no requirement that the lender appear at the Creditor's Meeting.

    Wrong. Again, lien holder has the right to ask for the return of its property. If OP does not cooperate lien holder can obtain a writ of replevin and a sheriff can take over securing the return of the property. Further, no Court in this Nation is going to give sanctions against a lender trying to get back its property. Point of fact, that same Court might sanction a debtor who refuses to return property that does not belong to him.

    Partially wrong. First and foremost the protection of the Automatic Stay as it relates to the collateral ended 45 days after the 341 if the debtor did not reaffirm. Even if the debtor did reaffirm, the protection ended when the case was Discharged and/or closed. As far as I know, there is no such thing as a "Motion for Stay of Discharge". Are you suggesting that a Creditor should seek a delay in the entry of a discharge and if so, for what purpose? The only correct statement contained in the quote is "All he can do is get the truck (the security/collateral) back". However, even that is not correct if the OP deliberately hides the creditor's property.

    OP, you have a duty to try to return the collateral. Contact the lender and let the lender know where it was left. Document you effort just in case the lender tries to argue that you deliberately took steps to hide its property.

    Des.
     
  6. barette

    barette Banned

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    I wish to inform you that your creditors had the right to your assets in bankruptcy. In this regard, if certain creditors were having a lien on certain assets like your truck then those secured creditors will be first satisfied and then the other creditors.
     

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