Miles v. Capital One Auto Finance & National Bankruptcy Services.com, LLC (In re Miles)

524 B.R. 915, 2015 WL 458280
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedJanuary 15, 2015
DocketCASE NO. 14-65995-WLH
StatusPublished

This text of 524 B.R. 915 (Miles v. Capital One Auto Finance & National Bankruptcy Services.com, LLC (In re Miles)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Miles v. Capital One Auto Finance & National Bankruptcy Services.com, LLC (In re Miles), 524 B.R. 915, 2015 WL 458280 (Ga. 2015).

Opinion

CONTESTED MATTER

ORDER ON DEBTOR’S MOTION TO REDEEM PROPERTY

Wendy L. Hagenau, U.S. Bankruptcy Court Judge

This matter is before the Court on Debt- or’s Motion to Redeem Property (“Motion”) (Docket No. 30). The Court held a hearing on the matter on December 18, 2014. Teri Brown appeared on behalf of the Debtor and Craig Lefkoff appeared for the Respondents. Debtor seeks to redeem a 2004 Jeep Grand Cherokee in Debtor’s possession for $1,500.00. Respondents argue that Debtor’s Motion should be denied because it was' filed outside of both the thirty-day and forty-five-day timelines prescribed in 11 U.S.C. § 521(a)(2)(A) and (a)(6). Respondents also dispute the $1,500.00 value and argue that the loan payoff of $3,528.49 is the proper amount for redemption of the vehicle.

Debtor asserts she complied with the requirements of Section 521(a)(2)(A) because she filed her statement of intent to reaffirm the debt within the allotted thirty-day time frame, but Respondents denied the request to reaffirm. Debtor appears [917]*917to argue then that the later forty-five-day time period of Section 521(a)(6) applies and the Motion was timely filed under Section 521(a)(6). The parties also presented evidence as to the value of the collateral. The Court took the matter under advisement and makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

The Debtor purchased a 2004 Jeep Grand Cherokee Laredo 4-door SUV in December 2008 for approximately $10,000. The Debtor granted Capital One Auto Finance a purchase-money security interest in the vehicle. As of the petition date, August 15, 2014, the vehicle had sustained some damage and wear and tear. The radiator was leaking, the rear bumper was damaged from the car having backed into a mail box, the hood was damaged by hail, and one seat was broken. As of the date of the hearing, the car had approximately 170,000 miles on it. The Debtor identified the vehicle oh her schedules and placed a value on it of $4,000. As of the date of the hearing, the payoff on the vehicle was approximately $3,528.49.

CONCLUSIONS OF LAW

Timeliness of Redemption

The Court concludes that neither 11 U.S.C. § 521(a)(2)(A) nor 11 U.S.C. § 521(a)(6) set a deadline for redemption under 11 U.S.C. § 722. Section 521(a) provides in relevant part:

(a) The debtor shall—

(2) if an individual debtor’s schedule of assets and liabilities includes debts which are secured by property of the estate—
(A) within thirty days after the date of the filing of a petition under chapter 7 of this title or on or before the date of the meeting of creditors, whichever is earlier, or within such additional time as the court, for cause, within such period fixes, file with the clerk a statement of his intention with respect to the retention or surrender of such property and, if applicable, specifying that such property is claimed as exempt, that the debtor intends to redeem such property, or that the debtor intends to reaffirm debts secured by such property; and
(B) within 30 days after the first date set for the meeting of creditors under section 341(a), or within such additional time as the court, for cause, within such 30-day period fixes, perform his intention with respect to such property, as specified by subparagraph (A) of this paragraph;
except that nothing in subpara-graphs (A) and (B) of this paragraph shall alter the debtor’s or the trustee’s rights with regard to such property under this title, except as provided in section 362(h);
(6) in a case under chapter 7 of this title in which the debtor is an individual, not retain possession of personal property as to which a creditor has an allowed claim for the purchase price secured in whole or in part by an interest in such personal property unless the debtor, not later than 45 days after the first meeting of creditors under section 341(a), either—
(A) enters into an agreement with the creditor pursuant to section ■524(c) with respect to the claim secured by such property; or
(B) redeems such property from the security interest pursuant to section 722;

Section 362(h) provides in pertinent part:

(h)(1) In a case in which the debtor is an individual, the stay provided by sub[918]*918section (a) is terminated with respect to personal property of the estate or of the debtor securing in whole or in part a claim, or subject to an unexpired lease, and such personal property shall no longer be property of the estate if the debtor fails within the applicable time set by section 521(a)(2)—
(A) to file timely any statement of intention required under section 521(a)(2) with respect to such personal property or to indicate in such statement that the debtor will either surrender such personal property or retain it and, if retaining such personal property, either redeem such personal property pursuant to section 722, enter into an agreement of the kind specified in section 524(c) applicable to the debt secured by such personal property, or assume such unexpired lease pursuant to section 365(p) if the trustee does not do so, as applicable; and
(B) to take timely the action specified in such statement, as it may be amended before expiration of the period for taking action, unless such statement specifies the debtor’s intention to reaffirm such debt on the original contract terms and the creditor refuses to agree to the reaffirmation on such terms'.

These provisions do not eliminate the debt- or’s right to redeem, but instead provide remedies to secured creditors where the debtor fails to timely notify the creditor of her intent, or to act on the stated intent. In re Herrera, 454 B.R. 559, 565 (Bankr. E.D.N.Y.2011). Sections 521(a)(2) and 362(h) provide a thirty-day time period, at the end of which the stay may terminate by operation of law. Section 521(a)(6) limits a debtor’s right to possess the collateral if certain actions are not taken within the prescribed forty-five-day time period. Neither of these provisions, however, limits the Debtor’s right to redeem the collateral, nor do they establish a deadline for redemption. In re Alvarez, 2012 WL 441257, at *7 (Bankr.N.D.Ill. Feb. 10, 2012).

Redemption is governed by 11 U.S.C. § 722, which “does not provide any time limit for performing the redemption.” In re Foster, 2006 WL 6591595, at *2 (Bankr.N.D.Ga. Feb. 28, 2006) (Drake, J.). Section 722 provides:

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Cite This Page — Counsel Stack

Bluebook (online)
524 B.R. 915, 2015 WL 458280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miles-v-capital-one-auto-finance-national-bankruptcy-servicescom-llc-ganb-2015.