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Stay/Discharge Violations

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District Court (Pa.) Confirms Bankruptcy Court’s Finding that Repossession of Vehicle Violated Automatic Stay

by Scott J. Hyman |

In In re: Dunn, 2018 WL 3549310, at *4–5 (E.D.Pa., 2018), Judge Leeson affirmed the bankruptcy court's finding that the repossession of a vehicle violated the automatic stay. Here, the Bankruptcy Court, following the court’s decision in In re Rice concluded that the BAPCPA eliminated the ride-through option. Neither party disputes this determination, nor is it necessary for this Court… Read More

District Court (Ga.) Finds Auto Finance Creditor’s Post-Discharge Repossession of Vehicle Was Proper; Creditor’s Security Interest Was Not of the Type that Could Be Voided by the Bankruptcy Court and Creditor’s Security Interest Survived Bankruptcy Discharge

by Scott J. Hyman |

In McFarland-Rourk v. Drive Time Credit, Inc., 2016 WL 3014679, at *2-3 (M.D.Ga., 2016), Judge Land exercise jurisdiction and found an auto finance company's post-discharge of a consumer's vehicle to be proper. The general rule is that “[u]nless a lien is avoidable and the debtor has taken timely steps to avoid it, the lien survives the discharge in bankruptcy.” Holloway… Read More

2d Cir. Distinguishes 9th Circuit’s Walls Decision; Says FDCPA Claims Arising from Post-Discharge Conduct Can Be Brought Outside the Bankruptcy Court

by Scott J. Hyman |

In Garfield v. Ocwen Loan Servicing, LLC, 2016 WL 26631, at *2-3 (C.A.2 (N.Y.),2016), the Court of Appeals for the Second Circuit said that FDCPA claims grounded in post-discharge misconduct are independent of the bankruptcy code. Where, as in this case, the later statute is the Bankruptcy Code, a distinction must be made between claims brought under the earlier statute during the… Read More

Bankruptcy Court (Cal.) Properly Distinguishes Between Creation of a Security Interest and Perfection of a Security Interest in a Vehicle in Deciding that Auto Finance Company Did Not Violate the Automatic Stay

by Scott J. Hyman |

In In re Perry, 2015 WL 7188369, at *7-8 (Bkrtcy.C.D.Cal., 2015), Judge Mund granted summary judgment in an adversary proceeding for an auto finance company who failed to turn over a vehicle post-petition and then sold it.  The facts were complicated and particular to the case, but the main point is that the Court got it right in distinguishing between… Read More

District Court (Ga.) Finds Creditor Who Finances Existing Ch. 13 Debtor’ s Purchase of Vehicle Violates Automatic Stay By Repossessing the Vehicle on Default

by Scott J. Hyman |

In In re Banks, --- B.R. ----, 2014 WL 5320539 (Bkrtcy.M.D.Ga. 2014), Judge Carter held that a finance company who finances a vehicle for a Chapter 13 debtor who acquires the vehicle post-petition and post-confirmation, but pre-discharge, violates the automatic stay by repossessing the vehicle on default. The Debtor filed a Chapter 13 Voluntary Petition on August 5, 2013. On… Read More

9th Cir. BAP Reverses Bankruptcy Court; Remands to Determine Whether Finance Co’s Post-Petition Retention of a Repossessed Car Violated the Automatic Stay

by Scott J. Hyman |

In In re Wallace, 2014 WL 1244792 (9th Cir.BAP 2014), the 9th Circuit BAP reversed and remanded for further proceedings a bankruptcy court’s finding that an automobile finance company’s post-petition retention of a repossessed vehicle was not a willful violation of the bankruptcy laws. The bankruptcy court here acknowledged that Carcredit's repossession of the automobile constituted a technical violation of… Read More

Bankruptcy Court (Or.) Finds Hundreds of Loan-Mod Calls Were Collection Calls in Violation of Discharge Injunction

by Scott J. Hyman |

In In re Culpepper, --- B.R. ----, 2012 WL 5395935 (Bkrtcy.D.Or. 2012), Judge Dunn denied a Bank’s MSJ as to an alleged discharge violation arising out of efforts to collect discharged debts surrounding a promissory note related to a deed of trust on Ms. Culpepper's residence property.  You know how it might turn out when Judge Dunn began his opinion… Read More

Bankruptcy Court (Cal.) Awards $18,032 in Damages/Puni’s Against Car Dealer Who Repossessed a Failed Spot-Delivery Deal in Violation of the Automatic Stay

by Scott J. Hyman |

In In re Hernandez-Panameno, 2012 WL 4867580 (Bkrtcy.N.D.Cal. 2012), Judge Carlson awarded $18,032 in sanctions and damages against a car dealer who repossessed a vehicle in violation of the Bankruptcy Code’s automatic stay.  The case arose out of a spot-delivery situation where the dealer could not find financing for the sale of the vehicle. Debtors purchased a car from Creditor… Read More