In this post we discuss what happens to a car loan when a borrower files bankruptcy.
1. In Chapter 7, you have three options for dealing with a car loan. These options are to surrender the car, reaffirm the loan, or “retain and pay.”
Surrender: If you file Chapter 7 and you wish to get rid of your car with a loan, you have the option of surrendering the car to the bank. The upside to this is that you can walk away from the loan, without having to pay any deficiency (i.e. the difference between the amount of the loan and the value of the car that you would generally owe if you walk away form a car loan.) The deficiency is wiped out in a Chapter 7 case.
Retain-and-pay: This is the most common option for car loans in Chapter 7. You get to “discharge” your car loan, which means they can never come after you personally for any unpaid amount on the loan. However, instead of surrendering the car, you keep the car, and continue making the payments for as long as you want. Both the borrower and lender act as if the bankruptcy had never been filed. Once the loan is paid off, you can get the lien released, and own the car free and clear, just as if you hadn’t filed bankruptcy. Some lenders won’t go for this, typically credit unions and some banks, and instead they’ll demand a “reaffirmation agreement.”
Reaffirmation: Some lenders don’t want to let you discharge your personal obligation on the loan, and instead demand a reaffirmation, which is a legal process where you renew your promise to pay the loan, and unfortunately you keep your personal liability. Typically, it’s credit unions that tend to demand reaffirmation agreements, and a few banks out there. Ask your attorney if your lender will accept retain-and-pay or demand a reaffirmation. If you choose reaffirmation, you will likely have to go to bankruptcy court so that the judge can explain the consequences to you and make sure you understand.
2. Chapter 13 has some interesting tools for dealing with a car loan. In a Chapter 13 case, you can reduce the principal of the car loan, reduce the interest and catch up on arrears.
Reduce principal: In Chapter 13 you can “cram down” a car loan, but only if you took the loan out more than two and a half years ago. To do this, we find the current value of the car. Then we can reduce the principal of the car loan from the current balance, to just the value of the car. So if you owe $9,000, and the car is worth $5,000, cram down reduces the balance of your loan from $9,000 to $5,000.
Reduce interest: For many car loans in Chapter 13, you can reduce the interest rate on the car loan from an exorbitant rate to something more reasonable. In past cases we have reduced interest rates to somewhere between 4 and 6 percent, typically. This can be a big help for subprime car loans.
Catch up on arrears: In Chapter 13, if you’re behind on a car loan, you can use bankruptcy to force the lender to accept catch-up payments. So if you’re $1,000 behind on the car, you can take those arrears and stretch them over a three-to-five year period, pay a small monthly payment to catch up (say, $20-35 a month in this scenario), and then resume making your regular monthly payments. This is a good option if you’re facing repossession.
If you’re struggling with a car loan or facing repossession, and don’t know what to do, you have plenty of options inside or outside bankruptcy. Get in touch with a lawyer to learn more about the tools available.