This is Part II of my series on collection lawsuits in Michigan.  In my first post, we outlined the general procedure a creditor uses to get a judgment, and the timeline for getting it.  The reason this is important is because, prior to getting a judgment, most creditors can't do much more than pester you. 

But that changes once they get an effective judgment.  At that point, the creditor has the power of the court to enforce its right to payment.  This takes two general forms:  garnishment and execution. Garnishment is taking property of yours in the hands of a third party (like an employer or bank).  Execution is taking property directly from you.  We'll discuss those in more detail in a future post.

Before a creditor can get your property, however, it must learn where your property is at.  Creditors do this by conducting a creditor's examination.  This is subpoena, signed by a judge, ordering you to appear in court and produce documentation regarding your finances.

Upon arriving at the court, you are put under oath.  The creditor's attorney usually is allowed to take you into a private room.  The attorney will often batter you with questions for as long as he or she feels its necessary.  If you refuse to answer, you will be subject to civil or criminal contempt.  If you give false answers, you expose yourself to criminal charge of perjury.  

The attorney will ask a barrage of questions to make the trip worthwhile: "What is your social security number?  Do you own any automobiles?  Any land?  Anyone put your name on land?  What are all of your checking and savings account numbers?  Where do you work and what is your employer's contact information?  Have you given any property to friends or family in the past year?  Who and how do I contact them?  Insurance policies?  Pensions?  Antiques?  Collections?"

And the list will go on.  If (or when) you reveal something of value, the attorney will make meticulous notes and follow-up with more questions, so he or she knows exactly how to get it.  If you try to move property or hide it, you'll like be brought back into the court, this time so the judge can enter an order that the property not be moved.

Once the creditor's attorney knows where the property is at, the collection process can begin with garnishments and executions.  I'll go into detail about garnishments in Part III.

How much is your car worth?  Most people think they know the answer to this question.  More than one client has gotten an unpleasant surprise after I pulled up Kelley Blue Book and showed them their automobile is worth thousands of dollars less than they guessed.  The next reaction is usually a combination of disappointment and fear, because the client still owes significantly more than the car is worth.

So what to do with that "underwater" auto?  The simple solution in a chapter 7 is to surrender the vehicle and discharge the debt.  Problem solved.

Well... sort of.  Except that you live in Northern Michigan where there is little or no public transportation. And everything is too far to walk, and bikes don't work real well in the snow! You need a vehicle to get to work and haul the kids around.  Maybe you can borrow one from family, or buy a clunker before you file, just to get by for a few months.  If you can make it through the gap between your old car getting repossessed and your discharge, you can probably finance a reasonably priced used car.

Too bad you can't just "retain and pay" - that is, keep the car and make the payments while still discharging your personal liability.  Unfortunately, the 6th Circuit has ruled you can't under the 2005 changes to the bankruptcy code.  So you have to do something if you want to keep the vehicle.

You might reaffirm the debt, assuming you can still afford the payments and are not behind (in which case, you might consider a chapter 13).  But then you're stuck paying significantly more for this vehicle than it's worth.  If something goes wrong down the road (literally) you'll be stuck with a big deficiency and will really be in a pickle!  Between surrender and reaffirm on a significantly underwater vehicle, I always strongly recommend surrender.

But there's another option, which many people overlook: redemption.  Redemption is found under 11 USC 722 of the bankruptcy code.  It applies only to chapter 7 bankruptcies.  In short, you get your vehicle free and clear in exchange for paying the creditor the value of the vehicle on the date of filing.

For example: your truck is worth $1500.00 on the day you file a chapter 7 bankruptcy.  You owe $10,000 to ABC Financial.  We file a motion to redeem, and the court agrees the vehicle is worth $1500.  You pay ABC Financial $1500, and you keep the truck.  The remaining $8500 is discharged.

OK, so that's great!  Right?  Oh yeah, except your automobile is worth $5000+ and you don't have that much cash just sitting around (hence the problem).  Unfortunately, this is why redemption is not always possible.

There is one more trick, however: obtaining financing for the payoff.  Friends or family are probably ideal, since they could be secured in the automobile and usually offer reasonable repayment terms.  There are also banks which do "722" financing, such as www.722redemption.com.  I had a client recently obtain 722 financing and lower their monthly car payments by over $100 per month!

A couple things to watch out for though - the new creditor will charge you interest through the nose, so be sure it'll actually save you money.  Also, a cosigner can be a big problem.  If mom or non-filing spouse co-signed for the auto, they will probably still be personally liable on the debt.  So even if you can make the lien go away through redemption, the creditor will be hot on the heels of your friendly co-signor (making him or her not-so-friendly!)

The bottom line: if you're in or considering a chapter 7 and are underwater on your auto, surrender and reaffirmation are not your only option - take a look at redemption!