Legal Question in Bankruptcy in New York

Re: auto reposession while in BK

Do you have an attorney who filed your Chapter 13 petition and/or accompanied you to meetings? Call him or her.

If and only if you don't have an attorney, call the court clerk (not the Trustee); give the person who answers the phone the case number, and wait for them to pull up the file. Then tell them you're the debtor in the matter, and ask specifically whether this creditor got the automatic stay lifted before the date of the repossession. Don't waste their time by reciting your facts (they'll know from the question itself that something got repossessed, and they frankly don't care what the collateral was or about the time of day of the repo); just ask the question. Note that THE COURT CLERK WILL NOT TALK TO YOU IF YOU ARE REPRESENTED BY A LAWYER, either on the petition or at any of the meetings or both. And they know whether you're represented since your lawyer's name will glare out at them from their computer screen when they bring up your case at the beginning of your conversation.

If Creditor got that automatic stay lifted before he repo'd your car, let it go; he's on the right side of the law and there's little, if anything, you can do about it (if you had personal items inside the car that the lender did not loan you the money to purchase, you have the right to reclaim those at your expense; contact the lender).

If Creditor did not get the stay lifted (that would surprise me), write a letter to the Judge with a copy to the Trustee reporting the incident. Give only the facts as you know them, without emotionalism or malice. Ask that the court enforce the Automatic Stay.

You may be able to get the car back IF you show that all payments on the loan have been made as of their due dates (or at least within the grace period), even after your bankruptcy petition was filed. Otherwise, that probably won't happen. A lender who handles car loans (and loans for any other tangible good) is a "purchase money lender" and they have the right to reclaim collateral for which they are not paid. The judge knows that and, although you can ask for the judge to order the return of the car in your letter, s/he is unlikely to require that the creditor return the car unless you've shown current payment.

THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT YOUR ATTORNEY.

Re: auto reposession while in BK

First of all, if you have an attorney you should consult with him/her.

The BK Code provides that an individual injured by any willful violation of the automatic stay shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances may recover punitive damages.

The foregoing is intended as general information of interest to readers of this website and is not intended as legal advice for your specific matter. Facts not disclosed in your brief posting may materially affect your rights.

If you have an attorney you should discuss with him/her if he handles these type of matters.

If you do not have an attorney, of he/she doesn't handle these type of matters, please feel free to contact me for a free initial consultation regarding this matter by calling 8888678165.

You can find additional information regarding bankruptcy on our website at www.starrandstarr.com/faqs.htm

Best regards,