Reaffirmation Agreement vs. Chapter 13
When is it better to reaffirm a secured debt (such as a vehicle loan) in a Chapter 7 case vs. handling it instead in a Chapter 13 case?
The last 5 blog posts in December were about keeping the collateral you want by “reaffirming” the debt. “Reaffirmation” applies only to Chapter 7 “straight bankruptcy”cases. (We’ve focused mostly on reaffirming a vehicle loan.) Today we get into keeping collateral (such as a vehicle) instead in a Chapter 13 “adjustment of debts” case. Our main question today: when is Chapter 13 a better way to keep your collateral than Chapter 7?
Rule of Thumb: Chapter 7 unless Need More Help
There are basically two questions:
- Would you be able to keep your collateral/vehicle in a Chapter 7 case?
- Even if so, would you get a significantly better result in a Chapter 13 case?
1. When You’re Able to Keep the Collateral in Chapter 7
If you are current on your debt payments, you would very likely be able to keep your collateral/vehicle under Chapter 7. You usually have to formally reaffirm the debt. That means you exclude that debt from the discharge (legal write off) that Chapter 7 provides. You continue to be fully liable on that one debt.
Creditors are usually very happy to be singled out this way. You are much better of a credit risk once you no longer owe all or most of your other debts.
Even if you are not current a Chapter 7 reaffirmation works if:
- you are able to bring the debt current within two or so months after filing, or
- the creditor is willing to work out the missed payments—give you more time to catch up, put the missed payments at the end of the contract, or even forgive the payments altogether
Chapter 7 also works well in those situations that a creditor is willing to lower the monthly payment and maybe even the total owed. This seldom happens with vehicle loans, except maybe if the vehicle is worth much, much less than you owe.
2. When Chapter 13 Can Give You a Better Result
Even if you CAN keep the collateral in a Chapter 7 case that doesn’t necessarily mean that you should if Chapter 13 would give you a much better result.
If you’re not current on payments, Chapter 13 would give you much more time to catch up. Consider if your creditor is making you catch up immediately before reaffirming, or within a few months after reaffirming. Let’s say you COULD catch up but it would take extraordinary effort to do so. Chapter 13 could give you many months—or maybe even a few years—to catch up. If that would greatly help you that extra time to catch up which Chapter 13 gives you could make its much longer procedure worthwhile. This may be especially true if you have other very pressing debts (child or spousal support, income taxes, etc.).
Whether or not you are current on payments, Chapter 13 can give you a much better result if your collateral is worth significantly less than you owe on it. You can do a “cramdown” when your collateral is NOT real estate but instead “personal property.” Personal property is essentially anything that isn’t real estate, including vehicles, furniture, appliances, electronics, etc. Without going into detail here, “cramdown” allows you to re-write your loan based on how much your collateral is worth. You can usually reduce the monthly payment and the total you pay, sometimes very significantly. “Cramdown” is available only under Chapter 13, not Chapter 7.
Especially Bad Payment History
As we said earlier, it’s usually in a creditor’s best interest to allow you to reaffirm a debt whenever you are willing to do so. But in rare circumstances a creditor may refuse to allow you to reaffirm the debt and keep the collateral. This may happen if you’ve had an especially bad payment record—consistently been very late on your payments, for example. Or if you’ve failed to maintain insurance. At some point a creditor may just prefer to repossess the collateral, sell it, and to end the relationship. Talk with you bankruptcy lawyer about whether this may be an issue for you if your history sounds like this. He or she likely has experience with your creditor about such matters.
In situations when a creditor may not be willing to let you reaffirm, Chapter 13 may be worth seriously consideration. In a Chapter 13 case the creditor has much less say about whether you get to keep collateral. You and your lawyer put the secured debt into your payment plan, leaving the creditor with limited grounds for objection. It’s true that your prior history may result in some greater restrictions. For example, if you’ve let a vehicle’s insurance lapse before, you can’t let that happen during the Chapter 13 case or you may lose your vehicle. Also you DO have to comply with the plan that you propose and the court approves. But as long as you do so you’ll be able to keep the collateral and will own it free and clear by the end of the case.
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