If your car-loan lender repossesses your car, van, truck, SUV, or other motor vehicle, it might sue you to recover any money you still owe on the vehicle loan (called the deficiency). If this happens, you’ll need to decide if it is worth paying for an attorney to help you. In some cases, hiring an attorney might make the difference between having to pay a deficiency judgment and walking away without owing the lender anything.
After the lender repossesses your car, it will most likely sell the vehicle at a public or private sale. In many cases, the proceeds from the sale will not be enough to pay off the total amount you owe—the difference is called the deficiency.
Example. If you owe $29,000 on your car, but your lender repossesses it and only gets $20,000 for the car at the sale, the difference of $9,000 is the deficiency.
The lender might then file a lawsuit against you to collect the deficiency. Once the lender gets a deficiency judgment, it generally may garnish your wages, or other income, or bank accounts. (Learn more in Deficiency Balances After Repossession.)
The lender must meet certain legal requirements when repossessing and reselling your car. If the lender messed up in some way during the repossession process, this could constitute a defense to the deficiency action. Hiring an attorney to represent you in the suit and investigate what happened might help you avoid or reduce the deficiency judgment.
Below are a few examples of defenses that might be available to you.
Lenders and their representatives can't breach the peace when repossessing the car. For example, they can't remove you from your car or physically touch you in order to take the vehicle. (Get details about how repossession works in How Motor Vehicles Are Repossessed.)
After taking you car, the lender must actually sell it in order to go after you for a deficiency. If the lender repossessed the car, but kept it, there's no deficiency.
When the lender decides to sell the car, it must send you proper written notice about the sale. If the notice contains incorrect information, it is invalid. (To learn more, see Required Notices in Car Repossessions.)
The sale must be commercially reasonable. Whether or not a sale meets this standard is generally based on the:
The analysis varies a bit depending on if the sale was private or public. An attorney can explain this to you in more detail.
If your lender promised to forgive the deficiency if you voluntarily returned the car, this could prevent it from getting a deficiency judgment later on. (Be aware that if the lender forgives $600 or more, you'll likely get a Form 1099-C or 1099-A, and the IRS will expect you to report the forgiven balance as income on your tax return.)
If the lender waits a long time to sue you, the statute of limitations—the time period in which the lender must file the suit—might have passed. (For more information, see Nolo’s Chart: Statutes of Limitations in All 50 States.)
Some states limit the lender’s ability to collect a deficiency balance in certain situations.
In some cases, the lender might incorrectly add up the amount you must repay or it might include amounts you’ve already paid in the total it now claims you owe. Also, the interest rate, late charges, and various fees that the lender claims you owe might not be accurate. (Learn more in Nolo’s article Defenses to Car Repo Deficiency Lawsuits.)
If you think the lender followed all proper procedures—and you know that you legitimately owe the deficiency amount that the lender is seeking—it might not be worthwhile to hire an attorney to fight the lawsuit.
Instead, you might want to try to negotiate a settlement with the lender. The lender could be willing to accept significantly less than you actually owe if you can come up with a lump sum instead. Alternatively, if you don’t have a lump sum available to settle the account, you might be able to negotiate an affordable repayment plan. (Keep in mind that if the lender forgives some of what you owe, you could face tax consequences.)
Even if you decide not to hire an attorney to fight a lawsuit, you might want to at least consult with an attorney before you negotiate with the lender to find out what your rights are and what’s at risk if the case isn’t settled. The attorney can also help you in the negotiation process if you’re not comfortable tackling that on your own.