Replevin filed

[kcj]

What is the name of your state? Florida

We filed in September 2005, discharged December 2005. Ch 7, old laws. We have a television that was purchased on a store card. Didn't realize at the time of filing that it was a PMSI and included the debt with our unsecured credit card debt.

Now we have been served for small claims court. This is the first we have heard from them; they never filed any objections to our expemtions, nor did they file a claim as a secured creditor (we are an asset case) I am guessing the best option is to try and settle with them out of court. We don't have a problem offering them a reasonable amount, but the value they put in the papers is about $1k over what a NEW television costs, and this one is almost 2 years old. (a new one of the exact same model can be had for $2k, the value it at $3k which is a couple hundred dollars less than what was discharged)

If they reposess the property and sell it, can they get a judgement against us for the balance of what they say is value of the television? I thought since the debt was discharged and only the lien remains, the most they can do is take back their property.

[azatty]

Under 11 U.S.C. §506, a creditor is only secured to the extent of the value of the collateral. The discharge extinguishes the "in personam" remedy (a claim against you personally), but does not affect the "in rem" remedy. A secured creditor still has a right of replevin (i.e. take back the collateral), but that's all; the debt itself is extinguished. So the only thing the creditor can get in the lawsuit is the television plus the cost to bring the suit. I'd suggest an offer of judgment that returns the television to the creditor plus some small amount for fees.

[kcj]

Thank you.

So, they can get the television plus the small claims filing fee? Or can they also ask for attorney fees? The papers we were served state in big bold letters that they are not seeking any money settlement, just return of the collateral. (I assume because to do so would be considered collection activity on a discharged debt)
Because they state they aren't looking for money, would they have to file another proceeding to recover their fees? I don't want to spend the rest of my life looking over my shoulder at them.
If we want to keep the television, we can make them an offer for that either before or at the court date, or call them and ask them if they have a settlement figure in mind?

[azatty]

They should file a fee application/affidavit in the small claims action. However, keep in mind that unless they are represented by an attorney (sometimes not the case in small claims), they cannot recover anything other than court costs (filing fee, service of process, etc.), and nothing for their own time.

[kcj]

They are represented by an attorney, but there was nothing in the papers we were served regarding any fee application/affidavit. Thanks for your help.