Mount Juliet, TN asked in Bankruptcy for Tennessee

Q: Can a finance company come and get collateral if I'm fixing to file Chapter 7 do I have to let them in the door

I can file in 2 weeks but this finance company wants to come view the collateral of which I no longer have some of the items. Please help

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3 Lawyer Answers
W. J. Winterstein Jr.
W. J. Winterstein Jr.
PREMIUM
Answered
  • Bankruptcy Lawyer
  • Boyertown, PA

A: Under the Uniform Commercial Code, adopted in most states, a secured creditor has the right to enter the premises and inspect its collateral, and in addition, to render it inoperable, where applicable. But a creditor may only do so without a "breach of the peace", e.g., they can't break down your door.

A creditor might (state laws vary) enlist a sheriff or constable to accompany the creditor, and that officer does have the power of forced entry. Local practice controls these events.

A bankruptcy filing invokes an automatic stay against any action by a creditor against you or your property. However, a secured creditor may have the right to request the court to grant relief from the automatic stay to repossess and sell its collateral.

Talk to your bankruptcy lawyer about these issues.

With respect to identified collateral which you no longer possess, beware. Transferring or destroying a secured party's collateral to hinder or delay may have serious consequences, under both state law and bankruptcy law.

Oliver L Cisowski
Oliver L Cisowski
Answered
  • Bankruptcy Lawyer
  • Elizabethton, TN
  • Licensed in Tennessee

A: If you have retained legal counsel let the finance company know. They should be contacting your attorney rather than you directly.

The general rule is that they cannot "breach the peace" when attempting to take back collateral. A simple "no" is sufficient to meet that standard and they will be forced to take judicial means to take possession. If you are 2 weeks from filing a chapter 7 there is no practical way they can get anything from you.

Once you file you will have the protection of the bankruptcy automatic stay. Depending on the type of collateral, you likely can get the lien lifted and the debt discharged.

Timothy Denison
Timothy Denison
Answered
  • Bankruptcy Lawyer
  • Louisville, KY

A: They can until you actually file bankruptcy.

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