Problem.Secured creditor in Chapter 7
Sasha, Simka and Sarah were identical triplets. When grown, they lived largely identical lives. Each purchased a home, an automobile, and some jewelry on secured credit. In addition, to secure loans to fund a trip to their high school reunion, each granted a non-purchase money security interest in 200 year old furniture that each had purchased years earlier in a sisters' day shopping.
Financial misfortune, which seemed to be in their DNA, struck them simultaneously. Each of them decided to file a Chapter 7, having been advised by counsel that all of their assets would be exempt and all of their debts, including unsecured debt (credit card balances, uninsured medical expenses, loans from friends) would be discharged.
With her petition under Chapter 7 each filed required schedules providing information about assets and debts. The schedules for each revealed unsecured debt totaling $35,000, secured debt in the amounts listed below, and value of the collateral in the amounts listed below. Each debtor also claimed all of her assets to be exempt from the reach of the trustee.
Amount of Debt Value of Collateral Automobile $10,000 $8,000 Home $150,000 $200,000 Diamond Broach $2,500 $2,000 Opal Pin $250 $200 Furniture $2,500 $5,000
A. Sasha reaffirmed the debt secured by her automobile in accordance with procedures mandated by the Bankruptcy Code (including a requirement that her attorney file an affidavit stating that such reaffirmation would not constitute an undue hardship on the debtor or dependents of the debtor), but defaulted on the payments one year thereafter? She remained in her home and continued timely mortgage payments without reaffirming the debt secured by the deed of trust on her home. Shortly after filing the petition she surrendered her diamond broach to the appropriate creditor and tendered $150 to the appropriate creditor in an effort to keep the opal pin. What may each of the secured creditors do? If she lives in a jurisdiction that permits a debtor to retain, or at least has not precluded a debtor from retaining, collateral by continuing to make payments without reaffirmation (a "ride through"), did her lawyer commit malpractice by signing the affidavit of no undue hardship that accompanied the filing of her agreement to reaffirm the debt secured by the automobile?
B. Simka surrendered all of the personal property other than the furniture to the appropriate creditors. She remained in her home but defaulted on her mortgage payments one year following her discharge. What may the holder of the mortgage do?
C. Sarah remained in possession of the automobile and, over a feeble protest by the relevant secured creditor, continued making payments for the automobile, without reaffirmation, for one year. She then defaulted on these payments and also missed two mortgage payments. Unable to immediately cure the missed mortgage payments, the real property secured lender has noticed a non-judicial foreclosure sale? She kept the jewelry without reaffirming, redeeming or making any payments and the relevant secured creditor has not yet contacted her about the jewelry. What may each of the secured creditors do now?