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Bankruptcy Representation: Relief from Stay and Automobile Finance Client Requirements for Relief from Stay Motions
When a person files for bankruptcy, an automatic stay is issued that stops all collection efforts, including lawsuits, garnishment, or attempts at repossession. Our attorneys help automobile finance lenders seek relief from stay so they may repossess and sell the debtor's vehicle. Consider the following when seeking relief from stay in Colorado.
A Debtor must respond to a Relief from Stay (RFS) Motion or it will be granted. Therefore, the RFS procedure takes on almost a default judgment type of practice. The Colorado bankruptcy court is increasingly concerned about generic, conclusionary, unsubstantiated, RFS Motions. We recommend the following documents and information to address this concern:
1. Loan or Retail Installment Contract Issues
- A legible copy (both sides) of the promissory note or contract.
- A legible copy of the title noting your lien.
- Legible copies of all assignment or servicing documents (if current holder is different from creditor identified on note or RIC). The judges, at a recent bench-bar luncheon, noted this issue is a recurring problem in Colorado.
2. Servicemembers Civil Relief Act
- This is an update of the old Soldiers and Sailors Civil Relief Act. My office has the ability to interface with the Department of Defense to create a complying affidavit. We require a social security number for all debtors who are obligated to pay to comply with the Act.
3. Amount Owing and Delinquency
- This is a point of frequent confusion, as noted by our bench. The critical date for identifying amount owing is the date of filing bankruptcy. It is imperative that clients provide amount owing as of this date.
- Delinquency should also be noted as of the date of filing.
- Post-petition (after filing bankruptcy) delinquency should be provided. However, the Court will want these figures separated into pre-petition and post-petition amounts.
- A computer generated payment history. This is another point of concern brought up by the judges. The Debtor says, "I paid it." Exactly how detailed and lengthy such a report should be is unclear. Certainly a report that shows the "holes," or missed payments, is very helpful.
4. Proof of Insurance
- The ultimate trump card for creditors. There is no defense and we can seek emergency relief for appropriate cases. Please let me know insurance status.
5. Value
- Most of my clients provide an NADA valuation for the unit. It is a good starting point and should be supplied.
6. Client Affidavit
- Creditors with ongoing business in Colorado would be well advised to develop a form affidavit that can be easily adapted to individual cases. The Bankruptcy Court is giving clear signals that such procedure will become mandatory in the near future. Download form affidavit.
Bankruptcy Representation: Chapter 13 Issues
Chapter 13 confirmation issues in Colorado are now on a fast track after the 2005 change to the Bankruptcy Code. A timely objection must be filed three (3) court days prior to the first meeting of creditors. It is critical to meet this deadline to preserve your rights in a Chapter 13 reorganization.
Adequate protection payments are now mandatory and may be distributed on a pre-conformation basis by the Chapter 13 Trustee. 1% of the amount owed on the date of filing is the presumptive amount. However, a creditor must file a proof of claim to receive adequate protection payments.
Bankruptcy Representation: Other Auto Finance Issues
We are a full service firm skilled in meeting all your automobile finance bankruptcy needs. Additional areas include:
- §341 meeting attendance, 2004 examinations, and reaffirmation hearings.
- Discharge and dischargeability opinions.
- Adversary proceedings.
- Preference defense.
- Redemption and other valuation issues.
Deficiency Collection and Repleven
The office successfully collects on deficiency accounts for automobile lenders. Our strategy is to immediately generate any form notices and bring suit. Our experience has proven the highest percentage of successful collection occurs through garnishment. We move your client files quickly through the system to accomplish this task.
Our paralegal staff is dedicated and skilled at keeping the paper flowing; renewing garnishments; perfecting liens; and disbursing, accounting, and reporting to clients on a monthly basis. We have had glowing feedback from clients on our collection procedures and results. Our clients appreciate the high degree of personal contact and interaction they enjoy with our staff.
Replevins are accomplished with the same speed. We customize a forms library for each client and each situation so we can quickly assemble the necessary paperwork. Extra steps, we have learned after years of experience, insure that the unit will be recovered once personal service is obtained. We have a separate tab discussing replevin in greater detail.
To contact Douglas D. Koktavy, P.C., for assistance with any debtor/creditor law or creditor services need, call (303) 337-2364, or contact one of our lawyers online.
Douglas D. Koktavy, P.C.
3515 S Tamarac Drive, Ste 200
Denver, CO 80237