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Ford Motor Credit: Wants to Repossess after Order Den=
When it is a financial hardship for the debtor to enter a reaffirmation agreement, I do not sign off or attend the hearing, the Debtor does. I counsel my client and help prepare the papers if asked by the debtor.
Catherine Christiansen
________________________________
To: cdcbaa@yahoogroups.com
Sent: Monday, September 10, 2012 7:54 AM
Subject: RE: [cdcbaa] Re: Ford Motor Credit: Wants to Repossess after Order Denying Reaffi
In my opinion, by filing out the reaffirmation agreement and showing up at the hearing, the debtors have acted in good faith. The ultimate decision of what is in their best interest is left to the court. The debtors opinion of what is their best interest is of limited value.they perceived was in their best interest. If the judge decided that it was not their best interest, the debtors have complied with their duties. Advising the clients to tell the judge to approve the reaffirmation agreement could wind up dangerous for the attorneys, because once they cannot make the payments, the cars are repossessed and the banks sue the debtors, it could come back at the bk attorneys.
Stella
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of arsen.pogosov@hotmail.com
Sent: Friday, September 07, 2012 2:06 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: Ford Motor Credit: Wants to Repossess after Order Denying Reaffi
Christine, the debtor must make a good-faith effort to reaffirm. If your client told the Judge to deny the RA because it is not in her best interest, then arguably your client did not make a good-faith effort to reaffirm, and the creditor can reposess.
I think the safest thing for bk attorneys to do is advise their clients to ask the judge to approve, but point out to the judge that they might have trouble paying on the loan, but nonetheless request that the RA be approved.
Arsen
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In my opinion, by filing out the reaffirmation agreement and showing up at the hearing, the debtors have acted in good faith. The ultimate decision of what is in their best interest is left to the court. The debtorssame people who wound up in the bankruptcy court making what they perceived was in their best interest. If the judge decided that it was not their best interest, the debtors have complied with their duties. Advising the clients to tell the judge to approve the reaffirmation agreement could wind up dangerous for the attorneys, because once they cannot make the payments, the cars are repossessed and the banks sue the debtors, it could come back at the bk attorneys.
Stella
rsen.pogosov@hotmail.com
Sent: Friday, September 07, 2012 2:06 PM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Re: Ford Motor Credit: Wants to Repossess after Order Denying Reaffi
Christine, the debtor must make a good-faith effort to reaffirm. If your client told the Judge to deny the RA because it is not in her best interest, then arguably your client did not make a good-faith effort to reaffirm, and the creditor can reposess.
I think the safest thing for bk attorneys to do is advise their clients to ask the judge to approve, but point out to the judge that they might have trouble paying on the loan, but nonetheless request that the RA be approved. That way they fulfill the good-faith effort requirement.
Arsen
Connected by DROID on Verizon Wireless
The post was migrated from Yahoo.
Maggie at Public Counsel was looking for this fact pattern. I believe that the creditor is prohibited from repossession, despite denial of the reaffirmation agreement, provided that the debtor took all of the required steps to reaffirm. I'm attaching my analysis of the issue prepared for an MCLE we presented earlier this year; there are a couple typos where I wrote foreclosure when I should have written repossesion (thanks to Jim King for catching those).
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
________________________________
To: "cdcbaa@yahoogroups.com"
Sent: Friday, September 7, 2012 11:19 AM
Subject: RE: [cdcbaa] Ford Motor Credit: Wants to Repossess after Order Denying Reaffirmation Due to "Debtor Voluntarily Dismissed Motion?"
There is a case (I cant recall) where a federal court said that no federal law prohibited a creditor from repossessing a vehicle if the debtor did not reaffirm in bankruptcy... even if the debtor was current on all the payments. So far as I know the issue has not been decided under California law.
Link Schrader, Attorney
Law Office of Link W. Schrader
From:cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Christine Wilton
Sent: Friday, September 07, 2012 11:09 AM
To: cdcbaa@yahoogroups.com
Subject: Re: [cdcbaa] Ford Motor Credit: Wants to Repossess after Order Denying Reaffirmation Due to "Debtor Voluntarily Dismissed Motion?"
Thanks for the quick feedback. Yes, I understand from others that Ford Motor Credit does in fact have an Ipso Facto clause that bankruptcy equals a default.
I'll check with my client on the conversation they had with the judge and put a call in to chambers. I'm not sure procedurally how a Debtor can Dismiss a Motion filed by the Creditor and why that box is even on the Order.
On Fri, Sep 7, 2012 at 10:40 AM, Giovanni Orantes wrote:
Ask your client if he did, in fact, dismiss the motion. If he didn't, call chambers and tell them the order is incorrect and ask them to reissue it with the correct language and explain the urgency of it. If the Judge does not want to do it that way, you may need to file a motion to clarify order under the FRCP 59 equivalent (i.e., 9023). There are other things to look out for. For example, does the purchase agreement actually have a clause that bankrutpcy is an event of default. If not, then Ford cannot repossess - though I believe Ford's contract does usually have such otherwise ipso facto clause. Also, I believe there are estoppel issues involving acceptance of payments, etc. Ultimately, the order may need to be fixed.
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: http://www.gobklaw.com/
Christine A. Wilton, Esq.
Law Office of Christine A. Wilton
Office:
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Lakewood, CA 90712
Mailing:
4067 Hardwick Street, Suite 335
Lakewood, CA 90712
Office: 877-631-2220
Cell: 562-824-7563
Fax: 1-636-212-7078
Email: attorneychristine@gmail.com
Web: http://www.attorneychristine.com/
Blog: http://www.losangelesbankruptcylawmonitor.com/
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