Lee Legal

If you can save enough cash during an open Chapter 13 to purchase a vehicle outright, then you may simply buy the car. Most debtors, however, require financing from a lender. You can still purchase a vehicle with financing while in Chapter 13, however you must first discuss it with your attorney.

The whole point of filing a Chapter 13 is to obtain a discharge, which is a permanent injunction from the court that releases the debtor from personal liability for his or her debts. In a Chapter 13, a debtor obtains a discharge by successfully completing a Chapter 13 plan, which is a repayment plan providing for payments of fixed amounts to the trustee on a regular basis, typically biweekly or monthly, for 36 to 60 months. The trustee then distributes the funds to creditors according to the terms of the plan. If the purchase of a vehicle will impair your ability to fund the Chapter 13 plan, then your attorney should advise against it.

Unless you have a close friend at the local dealership, obtaining financing while in Chapter 13 may be difficult. Bankruptcy is the worst thing that you can have on your credit report, and it will remain there for up to 10 years Many factors will affect your ability to obtain financing, including your pre-bankruptcy credit history, your debt-to-asset ratio, the amount of your down payment and your income. “Bad credit” car loans have very poor interest rates, sometimes as high as 23 percent.

Vehicles are a necessity for most debtors. Although it is generally advisable to wait for at least a year after bankruptcy to obtain vehicle financing, often a debtor will have no choice. Request the terms in writing from a willing lender and provide them to your attorney.

The trustee will automatically object to the purchase of a luxury car. In addition, the trustee will object to your incurring new debt for any vehicle unless you can show that you will be able to afford the monthly payment in addition to your Chapter 13 Plan payment.

The purchase of a car often entails the incursion of additional monthly expenses–such as gas and insurance–beyond the cost of the car loan itself. The trustee wants the debtor to complete the Chapter 13 plan according to the exact terms of the confirmed Plan. You must therefore address the trustee’s concerns that the incursion of the new debt–the car loan–will not impair the debtor’s ability to repay the debt. The trustee will carefully scrutinize any amendments to your income and expenses

If the trustee does not believe that you need a new vehicle, or believes that taking on more debt will impair your ability to fund the Chapter 13 Plan, then you should reconsider the purchase. If the car is an absolute necessity, then proceed with a Motion to Incur Debt and let the judge decide.

In an open Chapter 13 case, debtors are required to obtain the bankruptcy court’s permission before taking on new debts, including new car or home purchases. Your attorney will file with the court a Motion to Incur Debt, or in some jurisdictions, a Motion for Authority to Incur Debt.

The motion will assert that the terms of additional debt are reasonable, necessary and will not interfere with the confirmed Chapter 13 plan. The motion will be sent to all creditors and parties in the case and will also be set for a court hearing. As long as you can show that you will be able to make your monthly bills and new car payment, as well as, most important, the trustee’s payment, the motion will in most cases be granted. Your attorney will charge you a fee for the motion, notice and hearing, and that fee will be granted by the judge and paid by the trustee.

Buying a car will not be very helpful if you default on the monthly payments. Moreover, because the debt is post-petition, you may not include it in your Chapter 13. If you have a choice between making the car payment and making your Chapter 13 payment, in most cases it will be better to lose the car you just purchased to repossession than to default on your Chapter 13 Plan. No one can foresee events that may lead to your inability to make payments on the car, which is exactly why it is so important to carefully weigh your options–before your purchase–with your attorney.