Submitted by Snickerme on Wed, 06/17/2009 - 08:22
Posted in
When I file bankruptcy, can I exempt my car from the creditors and does that mean I get to keep the car?
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Editor's Response
First, when trying to decide which exemptions you should use (federal or Massachusetts) it is an excellent idea to talk to your bankruptcy attorney, because which set of exemptions you choose will depend on your unique situation. When you 'exempt' your car, you are really only exempting any equity you have in it. So, if you have a car that is worth $10,000 and you still owe $9,000 to the finance company, you can exempt that $1,000 in equity. Of course, you can only keep the car if you continue to make the payments. (You would have to reaffirm the debt and sign a new contract given to you by the lender.)
Naturally, if you owed more than the car was worth, you would not want to reaffirm the dept and continue making payments. Instead, you would seek to have the debt discharged and return the car to the lender. Good luck, and please tell your friends about The Forum. Follow this link for a more complete discussion of Massachusetts Bankruptcy Exemptions.
I agree with the Editor with
I agree with the Editor with one exception, it is extremely rare that anyone reaffirms an auto loan in Massachusetts.
The Bankruptcy laws state that a holder of a secured loan (here your car) may repossess if the Debtor does not reaffirm. This means that even if you are paying the bank could come get your car. However, in Massachusetts there is a state law that prohibits a bank from repossessing a car if you are current on the loan. Therefore the key to keep your car in bankruptcy is the same as outside of bankruptcy. Make the payments and you will be fine.
By the way, if you do not reaffirm the loan you will be able to walk away from the car at any point you want in the future because you will no longer be liable on the loan.
As for the exemption, it is unlikely that you would use the Massachusetts exemption unless you have a lot of equity in your home. Under the federal exemptions you can exempt up to $2,400 of equity in your car AND if you have no equity in a home you would have an additional $8,300 wild card exemption to apply to any asset you have that either (1) has no specific exemption, or (2) exceeds a specific exemption. Therefore it is possible to exempt up to $10,700 of equity in a car.
Of course this means that you will be bale to keep the car if you are able to exempt it. However, even if you cannot fully exempt the car you will still be able to buy back equity in the car from the bankruptcy Trustee.
Of course all of this is assuming you are filing a Chapter 7 case. In Chapter 13 there is no liquidation and you just keep all your assets, but you have to make payments over a period of years to the bankruptcy trustee.
You should talk a lawyer who will be able to help you with your particular situation.
Good Luck.
Robert Kovacs