Kentucky Bankruptcy Law

Counsel with Care

Post Holiday Pitfalls in Bankruptcy part 1

Certain provisions of the bankruptcy code bear special scrutiny when someone is filing bankruptcy in the weeks following the Christmas holiday season. This is because people tend to rack up higher debt during this season and tend to purchase higher priced items. Even folks struggling with a debt load find it hard to resist the lure of commercialism. They hope to still give great gifts to their children, family and friends.

The first provision to be aware of in a post-Christmas bankruptcy filing is 11 USC Sect. 522(f)(B). Ordinarily, 522(f) is the code section that allows one to strip off (turn from secured to unsecured) a debt that has household goods as collateral. However, 522(f)(B) clearly applies only to debts that were NOT purchase money security debts.  The reason this matters just after Christmas is that many large price purchases come with a purchase money security interest (PMSI) forcing you to either pay the debt or cough up the goods purchased. This can be embarrassing when you purchased a nice, large screen TV for your retired dad so he can watch the Price is Right in high-definition.

So, how do you know if a PMSI attached to you gift purchase? The only way to know for sure is if you still have the receipt and any other paperwork you signed when you bought the item. Ordinarily, regular credit cards do not involve PMSIs on their purchases, but in-store credit or store specific cards often do attach PMSIs to goods.  Your only clue that you are actually giving the creditor a security interest in the item you are buying may be when you have to sign two different places instead of just one. At some stores, the security agreement prints out on receipt paper just like the ordinary receipt which you sign whenever you make a credit purchase. Or, nowadays, you may be asked to sign an electronic signature device twice to complete the transaction.

PMSI debts do get discharged in a Chapter 7 or Chapter 13 as to your personal obligation to repay, but the security interest remains attached. So, even after the bankruptcy is over and done and you think all is well, the creditor can still show up and demand the property be surrendered to them. They cannot demand you repay them, but they do have a right to the stuff.

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January 2, 2012 - Posted by | Bankruptcy, Chapter 13, Chapter 7, Debt collection, Discharge, Exemptions, PMSI (purchase money), Property (exempt, Security interests | , , , , , , , ,

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