Legal Question in Bankruptcy in United States

Useing debtor with an automobile loan as an example provide a fact pattern that demonstrates a creditor holding a secured lien and (b) a creditor holding an unsecured claim ?

Asked on 7/16/15, 11:08 am

3 Answers from Attorneys

R. Jason de Groot R. Jason de Groot, P.A.

This sounds like a homework assignment, and you have to do this yourself if that is the case. Why would a consumer contemplating bankruptcy ask such a question?

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Answered on 7/16/15, 11:20 am
Jon Zahaby Tour bus, scenic and sightseeing, operation

Ah having an actual lawyer answer your law school or business law class question? Is an automobile collateral? Can the lender repossess the car if you don't pay? If you have collateral then you are secured if not then you are an unsecured creditor. A creditor with a lien on specific property of the borrower/debtor is a secured creditor. A lien exists only as to identifiable property (although certain liens, such as federal tax liens, may attach to all property of a debtor). A lien can encumber both tangible and intangible property (such as a copyright, or an account receivable) as well as after-acquired property. A lender without a lien is an unsecured creditor or general creditor, and the lender’s claim is an unsecured claim. A secured creditor typically has the right to repossess and sell its collateral following the borrower’s default. An unsecured creditor holds no claim against specific property of a debtor. Upon its debtor’s default, it may not seize any the debtor’s property, but must instead sue for a judgment on its claim. So an automobile lender can repossess the car and is therefore a secured creditor. A friend who loaned you some money without any lien on specific collateral is an unsecured creditor.

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Answered on 7/16/15, 11:26 am
JAY Nixon nixon law offices

I have no idea what you are asking, but auto loans are often secured, if that is your question, while most medical bills and credit cards are not. However, security interests only survive bankruptcy if they were perfected before the bankruptcy, which, for cars, is often done through the DMV. Some secured loans actually turn out to be unsecured if not perfected, and the reverse can also be true. That is unsecured debts can sometimes be converted into liens against real estate via docketing a judgment with the clerk of courts. Bankruptcy law, just like all of creditor debtor law, is complex and often counter intuitive, so there is no way to explain it here unless you have first learned both the entire bankruptcy code, and the UCC (Uniform Commercial Code), together with revisions of it unique to your state. Get a lawyer if you are attempting to file, since you obviously have no clue what all this really means, while any experienced bankruptcy lawyer who has had experience as a panel trustee, will have a detailed understanding.

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Answered on 7/16/15, 11:31 am

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