So now we have to file something to get the auto lender to turn over the vehicle, or the judgment creditor who has seized something like money in the bank, equipment or other assets. The attorneys in our office, who have more boots on the ground than I, are not particularly concerned. The attitude in our office, at least with the auto lenders, is you contact them, give them proof of insurance, offer to make adequate protection payments and there likely will not be a problem. I’m not so sure. My spidey sense says that they now have a lot more clout and will use it.
So what to do? It gets worse. Suppose the lender digs in and refuses to do anything. Can we file a motion or is a complaint beginning an adversary proceeding required? Well FRBP 7001 says “The following are adversary proceedings: (1) a proceeding to recover money or property, other than a proceeding to compel the debtor to deliver property to the trustee, or …” That actually didn’t bother me because the complaint could be very simple, two pages. But then a motion of some sort would be required which would include an application for an order shortening time, and a hearing to get the car back. Once the car is returned, you would think that would be the end of the adversary. A simple stipulation to dismiss? Well I hope.
When I proposed this to our attorneys, their fear was that the lender would use the complaint as an excuse to avoid an immediate deal saying “well you sued us, we have to get litigation counsel involved before we can do anything.”
The final injustice? The complaint will require a filing fee of $350 thank you! I had it in my mind that the debtor didn’t have to pay the filing fee but I haven’t been able to find that anywhere.
I know the Central District Judges are aware of the issues and are working on a resolution. I’m looking forward to seeing it.