When Should I File Bankruptcy?November 4, 2019
Will my car get repossessed if I file bankruptcy?
Some people think that if you file bankruptcy you have to give up your vehicle. However, this is not true. Ultimately a judge will determine if you have to forfeit your car or not. But if you don’t have to include your your car loan in your bankruptcy, then you do not have to give up your car.
Many people worry that they’ll lose everything if they file for Chapter 7 bankruptcy, but it’s not the case. Exemption laws allow you to “exempt,” or protect property in bankruptcy, including a modest car (truck, motorcycle, or van).
In this article, you’ll learn how your state’s motor vehicle exemption determines how much equity in a car you can protect. You’ll also learn about strategies to help you keep your vehicle, and steps you must take to keep your lender from repossessing your car.
CAUTION: This article assumes that you own your vehicle free and clear, or that you’re current on your vehicle payments. If you’re behind on your car loan, you can’t keep your car unless you work out a plan to bring your payments current before you file for bankruptcy (more below).
You can find out more in Can You File Bankruptcy on a Car Loan and Keep the Car?
How Much Can You Protect With a Motor Vehicle Exemption?
You’ll need to be able to protect any equity in your with a bankruptcy exemption if you want to keep it. Here’s how exemptions work in bankruptcy.
You’re allowed to exempt (keep) property that your state decides you’ll need to continue to work and maintain a household. But, in Chapter 7 bankruptcy, you must give up your nonexempt property—anything you can’t protect with an exemption. The bankruptcy trustee—the person responsible for managing your case—will sell your nonexempt property and use the proceeds to repay your unsecured creditors.
You’ll find out how much equity you’ll be able to protect by reviewing your state’s exemption statutes.
How Much Is Your Car Worth?
Next, you’ll want to figure out how much you’d be able to get for your car. In your bankruptcy paperwork, you’ll be asked to report the “current” value of your vehicle, which is the amount you can sell it for considering its current age and condition (commonly known as the fair market value).
You can find values on websites such as Kelley Blue Book the National Auto Dealers Association. Your bankruptcy trustee will likely favor one of the two websites and expect you to provide a printout from that site as proof of your vehicle’s value.
How Much Equity Do You Have in Your Car?
Once you know what your car is worth, you’ll use the value to determine how much equity is in it. Here’s how you do it.
If you don’t have a car loan. If you own your car outright (you aren’t making payments on a car loan), the equity in your car is the same as the car’s value. For instance, if the vehicle is worth $2,000, your equity is also $2,000.
If you have a car loan. The equity is the amount you’d have left over if you sold the car and paid off the car For instance, if you sold the car for $10,000 and paid off the $5,000 loan balance, you’d have $5,000 left to put in your pocket. The amount you’d get to keep is your equity. On the other hand, if you owe as much as the car is worth, you’ll have “zero” equity. If the vehicle is worth less than you owe, you’ll have “negative” equity.
Can You Protect the Equity With a Motor Vehicle Exemption?
Your next step is to compare the amount of your state’s motor vehicle exemption to your equity. If the exemption covers all of your equity, the trustee can’t sell your car.
If you have unprotected equity, the trustee can sell your car, give you your exemption amount, and distribute the remaining amount to your creditors.
Example 1. Joseph owns a Toyota Corolla worth $7,000. He still owes $5,000 on his car note. His state allows debtors to exempt up to $5,000 in equity. The trustee cannot sell Joseph’s car in Chapter 7 bankruptcy because the $5,000 motor vehicle exemption is enough to protect all of his vehicle equity. ($7,000 value – $5,000 car note = $2,000 equity)
Example 2. Ella owns a Harley motorcycle worth $15,000 free and clear. Her state’s motor vehicle exemption is $5,350, so the trustee sells the Harley and, after advertising and other sales costs, recoups $9,250. The trustee gives Ella her $5,350 exemption amount, deducts the statutory trustee percentage (the amount the trustee gets paid), and distributes the remaining proceeds to Ella’s creditors.
The trustee might also do the following:
Abandon the vehicle. The trustee will often abandon the car if money wouldn’t be available for creditors after selling it. The trustee must pay off the loan, the amount of your exemption, the costs of sale, and the trustee’s commission. If little or nothing would remain, the trustee will abandon it, and you’ll get to keep it. For instance, in Ella’s example above, if Ella’s Harley were worth only $6,000, nothing of consequence would be left for creditors after deducting all the costs, so the trustee would likely abandon it rather than go through the meaningless effort of selling it.
Let you buy the vehicle. Many trustees will also allow you to pay for nonexempt vehicle equity. In Ella’s example, if she wanted to keep the Harley, it’s likely that she could negotiate a deal with the trustee to pay the amount the creditors would receive minus anticipated sales costs. The trustee might even give Ella a few months to pay.
To find out which exemptions apply in your case, see Which Exemptions Can You Use in Bankruptcy?
Using Wildcard Exemptions to Protect Your Car
If the motor vehicle exemption doesn’t cover all of the vehicle equity, you might be able to use a wildcard exemption (if your state has one) to protect a certain amount of property of your choosing. A wildcard exemption protects any property of your choosing.
In some states, you can also apply any unused portion of the homestead exemption to other assets. These exemptions can be added to your motor vehicle exemption to protect your car equity.
Example. Hannah has $4,000 in equity in her car. Her state allows debtors to exempt up to $3,500 in a car. It also has a $1,000 wildcard exemption. Hannah can protect her car by using $3,500 of the motor vehicle exemption and $500 of the wildcard exemption.
Car Loans: Additional Issues to Consider
Even if the trustee doesn’t sell your car to pay your creditors, you still have one more step to take if you have a car loan. If you don’t have a loan, you’re done.
If you’re behind on your vehicle payments, the lender can take back the car, even if an exemption protects your equity. You might be able to save it one of two ways:
Redeem the car. Pay the market value of the car to the lender in one lump sum.
Reaffirm the car loan. Sign a new loan that will remain in force after the bankruptcy is over and make up the payments in the new agreement.
Understand, however, that while you have the right to enter a reaffirmation agreement if you’re current on your payments (and your lender might insist on it), the lender doesn’t have to agree to “modify” the loan in any way.
So if you’re behind on your car loan before you file for Chapter 7 bankruptcy, and you don’t have the money to redeem it, you’ll be able to keep your car only if your lender is willing to work with you.