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My daughter had her car repo'd 4 years ago when she was

Customer Question
My daughter had her...

My daughter had her car repo'd 4 years ago when she was having some financial difficulties. Now the credit union has contacted her and demanded a payment of almost 3K

Lawyer's Assistant: What state is this in? And how old is the car?

+ court fees and interest In KS

Lawyer's Assistant: Has anything been filed or reported?

It's on a lawyers desk now

Submitted: 10 months ago.Category: Legal
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Answered in 8 minutes by:
9/26/2017
Lawyer: legalgems, Lawyer replied 10 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,965
Experience: Just Answer consultant at Self employed
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I am sorry to hear this. What is your question please?
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Customer reply replied 10 months ago
Hello
What are my daughter's options in getting this resolved?
Customer reply replied 10 months ago
She has a letter from the atty if she wants to dispute or resolve this?
Customer reply replied 10 months ago
They have given her 30 days to respond. Dated Sept 6th
Customer reply replied 10 months ago
I'm working and don't have time to talk. Any information you can provide online is appreciated.
Lawyer: legalgems, Lawyer replied 10 months ago

I'm sorry; I was reviewing your posts- please ignore what I believe is the autogenerated call request as I dont participate in that service and can assist you on this page.

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Lawyer: legalgems, Lawyer replied 10 months ago

So to be clear, have they obtained a judgment or are they now threatening to obtain a deficiency judgment?

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Customer reply replied 10 months ago
They are threatening
Lawyer: legalgems, Lawyer replied 10 months ago

Thank you - a few minutes please.

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Customer reply replied 10 months ago
Case # *****
She just gave me a case #
Lawyer: legalgems, Lawyer replied 10 months ago

Thank you;

so the statute of limitations for collecting on a written contract is 5 years.

During that time, a secured party may seek a "deficiency judgment" for the difference between the money received by the lender by selling the collateral, and the outstanding loan balance, plus associated fees.

However, in Westgate State Bank v Clark (231 Kan 81) and according to statute 16a-5-103(1) the lender must act in good faith and a reasonably commercial manner in order to recover a deficiency judgment. The burden is on the lender to prove this.

So for example according to Kelley v. Commercial Nat'l Bank (235 Kan 45), and KSA 84-9-505, if 60% of the loan was paid the lender must sell the collateral within 90 days (to help preserve fair market value and to reduce any potential deficiency judgment).

Otherwise a lender may sue to recover the deficiency.

If a suit is filed and the defendant (borrower) does not appear the court will typically enter a default judgment in plaintiff's favor (they assume it is not contested).

Often a defendant that knows they are liable will attempt to negotiate a payment plan or a lump sum settlement, to help reduce court costs and attorney fees (since the court can award these as part of the judgment). If that is done it is important to have everything in writing and the case dismissed.

Further questions? Please post here to continue the chat.

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Customer reply replied 10 months ago
what is your best advice for her moving forward to get this resolved? She's a FT College student with very little income who also is repaying the IRS for Obamacare on a monthly basis.
Lawyer: legalgems, Lawyer replied 10 months ago

We can't give specific advice because only an attorney that is familiar with the case in its entirety and has conducted a conflict of interest check (ie to make sure they aren't representing the lender) can give legal advice; I can only provide information and the customer can then determine what they would like to do or seek more assistance from a personal attorney. Basically the options are:

1. attempt to reach a settlement with a lender - that is dependent of course upon the lender's willingness, though they normally are willing to at least work out a payment plan

2. consider bankruptcy: chapter 7 gives a "fresh start" but it does stay on one's credit report and is very damaging. This is explained here:

http://www.uscourts.gov/services-forms/bankruptcy

3. allow it to go to court and make any challenges available - ie failure to act in a reasonably commercial manner;

but then the court can add on legal fees and court costs if the lender prevails.

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Lawyer: legalgems, Lawyer replied 10 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
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