How Can a Secured Creditor Repossess Collateral Without Breaching the Peace?

Jimerson Firm

When a borrower applies for a loan, most lenders require the borrower to pledge an asset as security for the repayment of the loan, i.e. collateral. The quickest and cheapest way for a secured creditor to take possession of the collateral is by self-help repossession.

Rick Steinberg to give live webinar presentation on October 6 at 1:00 through Strafford on Bankruptcy and Secured Creditor Priority: Identifying, Resolving, or Avoiding Hidden and Springing Liens

Price Meese

Steinberg and the firm are pleased to announce that he will be speaking in an upcoming Strafford live video webinar, “Bankruptcy and Secured Creditor Priority: Identifying, Resolving, or Avoiding Hidden and Springing Liens” scheduled for Wednesday, October 6, 1:00pm-2:30pm EDT.


Sign Up for our Newsletter

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Secured Creditors Beware: Ninth Circuit Holds a Chapter 13 Debtor may Avoid Liens Even if not Entitled to a Discharge

The Creditors Rights

The creditor in Blendheim was HSBC Bank, which held a deed of trust lien on the debtors’ home. HSBC timely filed a secured proof of claim based on its deed of trust against the debtors’ residence. For some unknown reason, HSBC never responded to the debtors’ objection, and the bankruptcy court entered an order disallowing HSBC’s secured claim. Congress enacted § 1328(f) of the Bankruptcy Code when its passed BAPCPA.

SBA Loans: How to Maximize Recovery by Liquidating Personal Property

Jimerson Firm

Self-Help Repossession: In Florida, a secured creditor may use self-help repossession to take possession of collateral, provided its efforts do not breach the peace. Secured creditors are not required to provide notice to unknown creditors.

Sixth Circuit: Creditor did not Violate Chapter 7 Discharge Injunction While Negotiating Release of Lien

Foster Swift

Once a Chapter 7 debtor receives a discharge of personal debts, creditors are enjoined from taking action to collect, recover, or offset such debts. However, unlike personal debts, liens held by secured creditors “ride through” bankruptcy. The underlying debt secured by the lien may be extinguished, but as long as the lien is valid it survives the bankruptcy.

Cutting through the insolvency paperwork jargon – A guest blog by Menzies LLP


In this week’s guest blog, the Menzies LLP Creditor Services team highlight the areas you should be looking for on receipt of insolvency paperwork and, most importantly, whether there will be a dividend. The priority of payments in a company insolvency determines where creditors rank in terms of likely return. Below is a non-exhaustive list of priority: Secured creditors – with a fixed charge. Secondary preferential creditors – some HMRC arrears. 10 creditors.

What Is An Insolvent Estate? All You Need To Know

Hudson Weir

In addition to the personal representative, an insolvency administration order can be sought by a creditor, a liquidator, a temporary administrator or the supervisor of an individual voluntary arrangement that the deceased person was subject to.

As Chapter 11 Bankruptcy Filings Surge, Here’s What Creditors Need to Know to Protect and Enforce Their Rights


Creditors of a bankrupt company must be aware of the various deadlines and procedures that govern the chapter 11 process in order to protect and enforce their rights. For creditors to maximize their recoveries, they must stay informed and take action during a bankruptcy proceeding.

Section 1126 of the Bankruptcy Code and the Dangers of Sleeping on Your Rights as a Creditor


This is especially true if you’re a creditor in a chapter 11 case. Two mortgage companies held more than $800,000 in secured claims, and 33 creditors had unsecured claims totaling about $1.1 Just seven unsecured creditors voted on the plan, all in favor.

Burr’s James Roberts Named a Finalist for the Chambers Diversity & Inclusion Awards

Burr Forman

James works in the Creditors’ Rights and Bankruptcy Group in the firm’s Birmingham office. His practice focuses on all aspects of corporate restructuring, bankruptcy, and insolvency proceedings, including Section 363 sales, disorderly winddowns, preference, and fraudulent transfer litigation, as well as debtor and secured creditor representation.

Bill Limiting a Hospital’s Means of Collecting Past Due Medical Debt Poised to Become Law

Troutman Sanders

The bill as proposed would prohibit hospital creditors from requesting wage garnishments against patients for debts if that patient was eligible for free or reduced-cost care.

Equitable Mootness on the Ropes


2] Immediately after confirmation of the plan, the pre-petition senior secured lender received $6 million out of a $13.5 Of the $12 million paid under the Plan to creditors [.

Your Commercial Debtor Just Went Bankrupt — Can You Still Get The Money You’re Owed?

Debt RR

Even in a best-case scenario — as a secured creditor — you could be waiting up to six years to receive payment. These will contain a listing of the amounts owed to each creditor, whether secured or unsecured. If the customer purchased something from you within 20 days of filing for bankruptcy, you might be able to elevate your claim to priority status over other unsecured creditors. For some creditors, that level of involvement might just be too much.

What Are Debentures? Everything You Need To Know

Hudson Weir

A debenture is a document representing a loan agreement between a lender and a borrower, granting the lender security over the borrower’s assets. In the case of insolvency or liquidation, a floating charge would give the lender priority over unsecured creditors in the order of repayment.

Court Dismisses Bankruptcy Case to Enable Debtor to Seek a Paycheck Protection Loan


The debtor’s motion to dismiss drew creditor opposition. With respect to the DIP loan, the debtor noted that as an unsecured creditor, RT was in the same position as if the debtor had a secured loan outside of bankruptcy.

All in a Day’s Work. Belk Achieves Confirmation of Pre-Packaged Plan in Record Time


” [1] Critically, the plan leaves all unsecured creditors unimpaired. We posit a few of those here: Broad Creditor Support. Leaving trade creditors unimpaired, while not legally required, is an essential pragmatic consideration.

A Primer On Administrative Expense Claims From An Oil And Gas Bankruptcy Case


Some of Whistlers’ creditors also filed an involuntary chapter 11 petition against Whistler. The claim drew objections from Whistler, one of its secured creditors, and the unsecured creditors’ committee.

Update: Supreme Court Resolves Circuit Split Regarding Pre-Bankruptcy Seizure


In 2019, we began following a Circuit split regarding a secured creditor’s obligation to return collateral that it lawfully repossessed pre-petition after receiving notice of a debtor’s bankruptcy filing.

Another Bankruptcy Court Weighs in on Postpetition Interest


2] In this case, unsecured creditors argued that they were “impaired” because the plan did not require the debtor to pay postpetition interest at the contractual rate or a higher state law judgment rate. [3]

What are the Conditions Precedent (if any) to Perfecting a Claim to an Assignment of a Life Insurance Policy as Security Collateral for a Loan?

Jimerson Firm

Furthermore, in the event the collateral was pledged to multiple lenders, lenders will need to know how to discern whether their assignment of life insurance takes precedent over the collateral interest of a competing secured creditor.

Deepening Circuit Split, Third Circuit Holds that Items Seized Pre-Petition Did Not Violate Automatic Stay

Consumer Financial Services Law

2019) that creditors who refuse to relinquish an item that was seized pre-petition are not subject to sanctions because their refusal does not violate 11 U.S.C. § She then notified her creditors of the filing and demanded return of the Corvette. The creditor refused to do so, and Denby-Peterson filed a motion for turnover seeking an order (1) compelling the return of the Corvette, and (2) imposing sanctions for an alleged violation of the automatic stay.

How Businesses Use Corporate Debt Restructuring for Liquidity


Debts can quickly cripple a business, and negotiating more favorable terms with creditors is usually the best way out. Many businesses are both debtors and creditors. Creditors can cut their losses, and everyone can come to an agreement on how to move forward with a deal that benefits everyone involved. Debt restructuring is a mechanism where a business’s creditors restore liquidity by reorganizing financial obligations. Past-Due Secured Debt. Secured Creditors.

What Happens When Your Tenant Files for Bankruptcy?

Rocket Lawyer

If a tenant files for bankruptcy, or you believe that they may, you will want to understand the process, your rights and obligations as a landlord (and creditor), and how their bankruptcy may affect your livelihood. Secured claims are for debts backed by specific assets.

Top 10 Changes to Consumer Bankruptcy Proposed in the Consumer Bankruptcy Reform Act of 2020

Collection Industry News

Currently, Chapter 7 allows consumers with nominal disposable monthly income to discharge their debts after liquidating any non-exempt assets to repay their creditors. Chapter 13 provides for consumers to discharge their debts after paying their disposable income to creditors under a three- or five-year repayment plan. Pre-COVID-19, consumers were required to appear in person for section 341 meetings where they were examined under oath by bankruptcy trustees and creditors.


BN Lawyers

Work with Creditors. Most creditors (lenders, suppliers, employees) will be aware of the distress facing the entire service industry. If there is a mitigating factor at play, it is that creditors know that even well-run companies that will be profitable over the medium- and long-term will face short-term liquidity problems and distress. Many creditors will be willing to work with businesses. Creditors face their own pressures. By: R. Shannon, Esq. [1].

Post-Default Environmental Risk Management for SBA Lenders

Jimerson Firm

b) Have a receiver appointed by the court to take possession of the collateral and operate the business on the lender/CDC’s behalf, to avoid losing the secured creditor liability exemption. If a borrower defaults on a SBA loan, the lender or CDC must assess the environmental risk of contamination before conducting any liquidation action that could result in a loss, or otherwise increase the risk of loss, due to the actual or alleged presence of contamination.

Collusive Bidding on a Debtor’s Assets: A Question of Fairness


However, if Lombard, another potential bidder of Waypoint’s assets, and a secured creditor of Waypoint, made a bid for the assets, Macquarie would lose the breakup fee and be unable to submit a matching bid. [vi] By: Ross Weiner. John’s University School of Law. American Bankruptcy Institute Law Review , Staff Member. Under section 363 of title 11 of the United States Code (the “Bankruptcy Code”), a trustee or debtor-in-possession may sell the debtor’s assets.

Foreclosing on Property With a Mobile Home

Jimerson Firm

If the mobile home is retired, all personal property security interests in the mobile home no longer exist, and the mobile home will only be secured as part of the real property through a mortgage or deed of trust.

Default Interest Rates are Presumed Reasonable Under Sec. 506(b), and a Bankruptcy Court May Not Use the Fair and Equitable Language of Sec. 1129(b) to Conclude Otherwise

The Creditors Rights

The Ninth Circuit BAP recently discussed on appeal the issue of whether a bankruptcy court may use the “fair and equitable” standard for confirmation in § 1129(b) to deny an oversecured creditor default interest on its claim to which it would otherwise be entitled under § 506(b). The creditor enjoys a presumption that the contracted for rate is reasonable, and the debtor bears the burden of demonstrating it is not, or that the rate is not enforceable under applicable non-bankruptcy law.

Post-Discharge Credit Inquiries by Mortgage Servicer did not Violate FCRA

Consumer Financial Services Law

Bankruptcy Code specifically excepts from its ambit “a secured creditor’s efforts to seek ‘periodic payments associated with a valid security interest in lieu of pursuit of in rem relief to enforce the lien.’” By: Landon G. Van Winkle A divided panel of the U.S.


Collection Industry News

New sub-chapter V (“five”) – part of the Coronavirus Aid, Relief and Economic Security Act of 2020 (the “CARES Act”) – is set to expire in about six months. Creditors will also benefit from the lower costs, quicker proceedings, and increased certainty about the outcome of the process, if at the expense of some leverage. Owners now have a way to keep their equity ownership even over the objection of creditors. This trustee may even interface with creditors in negotiations.

9th Cir. Reverses Trial Court Ruling in Favor of Defendant on FDCPA Claim Related to Bankruptcy

Collection Industry News

In response, the debtor filed for Chapter 13 bankruptcy, designating the HOA as a secured creditor, and confirming he would pay the debt’s total arrears through his proposed plan and ongoing dues directly to the HOA. The Court noted that in Walls , the debtor’s FDCPA claim depended solely on the discharge injunction, and that no independent basis existed to show that the creditor acted unlawfully.

Separate Military Service Periods Considered Single Transactions for Recoupment Purposes


military salary, less a 7.65% adjustment for Social Security and Medicare and a 15% administrative adjustment. [2] 7] However, in June 2018, the Debtor filed for bankruptcy relief under Chapter 13 of Title 11 of the United States Code (the “Bankruptcy Code”) and scheduled the City as a creditor for $50,947.00. [8] 11] Because bankruptcy law policy favors equal treatment of creditors and bank court supervision over secured creditors, the recoupment doctrine is narrowly construed. [12]