We’re in a series of blog posts about choosing between Chapter 7 “straight bankruptcy” and Chapter 13 “adjustment of debts.” Along these lines two blog posts ago we outlined when to reaffirm a secured debt (focusing on a vehicle loan) under Chapter 7 vs. handling it under Chapter 13 instead. Then last time we gave some examples showing which option works better in different situations. That focused on situations in which someone had fallen behind on the payments, and/or had a rough payment history. But we didn’t cover the special situation of Chapter 13 “cramdown.”
Today we’ll give an example when cramdown on a vehicle loan may be a good reason to file a Chapter 13 case.
The Background Facts
Let’s say Christina is current on her vehicle loan. She got far behind on all her other debts because of a serious illness for which she was underinsured. She’s healthy now but being so sick hit her hard financially. She has way more debt than she could ever pay off, and she’s being sued by two of her creditors.
She absolutely has to keep her vehicle to be able to get to work and take her son to school. So Christina knows she has to file a bankruptcy case to be able to make payments on her vehicle. She has to act soon because the lawsuits will turn into judgments and then into garnishments of her paycheck.
The Chapter 7 Reaffirmation Option
Her Louisville bankruptcy lawyer informs her that a Chapter 7 bankruptcy filing would discharge all her non-vehicle debts. This means she would no longer owe anything on them.
Plus Christina could enter into a reaffirmation agreement with her vehicle lender, and continue paying on that debt. She does not mind continuing to be legally liable on this debt because keeping her car is her highest priority. Plus continuing to pay on the vehicle loan consistent with her original contract would help resuscitate her post-bankruptcy credit record.
The Chapter 13 Vehicle Loan Cramdown
But now let’s add a few more facts. When Christina bought her car 3 years ago she had a much higher paying job than she has now. The car she bought reflected her relatively high pay. Then, through a combination of bad choices and bad luck she lost her job, became a single mom, and had the car accident.
The result of all this is that vehicle loan’s monthly payments are quite high. They are more than she can afford to pay even without her other debts. This is in part because of her costly childcare and other expenses related to her baby.
Christina’s lawyer informs her that in a Chapter 7 reaffirmation she’d have to pay the vehicle loan’s full monthly payments. But Chapter 13 “cramdown” of that vehicle loan could reduce that monthly payment amount. In fact, cramdown could save her money both short-term and long-term.
IF she qualifies, cramdown essentially allows her to re-write her car loan based on the fair market value of her vehicle.
Qualifying for Vehicle Loan Cramdown
First, cramdown doesn’t do any good for Christina unless her vehicle is worth less than she owes on it. Otherwise no reduction in her monthly payment or in the amount she owes is possible. The less her car is worth compared to what she owes the more cramdown helps her.
Second, cramdown on a consumer vehicle loan only applies if the loan is more than 910 days old at filing. (See the unnumbered “hanging paragraph” right after Section 1325(a)(9) of the U.S. Bankruptcy Code.) 910 days is about 2 and half years. Since Christina bought her car 3 years ago, she meets this 910-day requirement.
Adding some final facts, assume that Christina’s car is worth $8,000 but she still owes $15,500 on it. The monthly payments were $600 on a 5-year contract. She can realistically afford to pay $275 per month into her Chapter 13 plan payment. Based on her present income, she would have to pay that for 3 years.
Cramdown for Christina would mean that she could pay only $8,000 for her car, plus interest. That interest would often be at a reduced rate. That covers the secured part of her debts—the $8,000 of the $15,500 that she owes.
She would pay the remaining unsecured portion—the remaining $7,500—if and only to the extent that she could afford to do so. That $7,500 would be put into the pool of all her other unsecured debts. That pool would receive any leftover money she pays into her Chapter 13 plan. That means whatever money—IF ANY—after the $8,000 secured debt portion of the vehicle loan, plus interest, plus Chapter 13 administrative expenses (the trustee fees and any remaining attorney fees).
In this case Christina is paying $275 for 36 months, or $9,900. Of that $8,000 plus about $750 in interest would go to her vehicle lender. Virtually all of the remaining $1,150 ($9,900 minus $8,750) would go to her trustee and attorney fees.
So, Christina would end up paying Chapter 13 monthly plan payments of less than HALF her present monthly car payments. ($275 vs. $600). Although the plan payments would extend longer than her car loan would have (3 years instead of 2), the total she’d pay on ALL of her debts would much less than how much she would have paid on just her car if she had filed a Chapter 7 case and reaffirmed on the vehicle loan. ($9,900 in her Chapter 13 plan vs about $16,500 to reaffirm her vehicle loan.)
Reaffirm or Cramdown
So here it looks like Christina could save both monthly and in the long run under Chapter 13 cramdown. Most importantly, the lower monthly payments would enable her to keep her car when she otherwise couldn’t.
Note that usually there are other considerations affecting the choice between Chapter 7 and 13. Sometimes there are many considerations that need to be weighed against each other. For example, if Christina had a way to get another vehicle—through a relative, perhaps—going through a Chapter 13 just to keep her car may well not be worthwhile. However, if she was behind on a mortgage or taxes, these could be additional reasons to file under Chapter 13. Choosing your best option truly does require looking at your complete financial life with the help of your experienced Louisville bankruptcy lawyer.