Schedule D lists secured creditors, those creditors who have collateral for their debt that they can repossess or foreclose on. Repossession and foreclosure are the legal methods that allow secured creditors to obtain possession of and sell their collateral. Repossession applies to personal property while foreclosure applies to real property.
How Does Repossession Work?
Repossession means the act of gaining control over personal property so that it can be sold, and the proceeds applied to the debt. It happens in one of two ways. If a creditor can repossess property without a breach of the peace, the creditor can simply take the property. This most often happens with motor vehicles. The creditor hires a repossession company that goes to the debtor’s home, usually in the night while the debtor is asleep, hooks the car to a tow truck and drives away. The next morning the debtor awakes to find his car gone. The repossession can be done during the day but if the debtor gets confrontational with the repo company, a breach of the peace might occur, and the creditor would have to use the second option.
The second method is for the creditor to sue the debtor on the obligation and, as part of the judgment, get an order allowing the sheriff to pick up the property. Armed with this order the sheriff can enforce the repossession and even arrest the debtor if the debtor tries to interfere.
How Does Foreclosure Work?
Foreclosure is for real property. A creditor can’t repossess land in the same sense a creditor can pick up personal property. Foreclosure allows the creditor to sell the land at a public auction.
In Utah there are two types of foreclosure, judicial and non-judicial. Non-judicial foreclosure is by far the more common. It begins by the creditor sending the debtor a Notice of Default, which is a formal notice telling the debtor that she has defaulted on the terms of her payments. The debtor has three months from the date of the notice in which to bring the payments current. The Notice of Default is recorded with the county recorder so that anyone checking title knows that a foreclosure is pending. After three months, if the debtor has not brought the payments current (cured the default), the creditor can give a second notice, called a Notice of Sale. The Notice of Sale is notice that the creditor will sell the property at public auction. It must be published in the newspaper once a week for three consecutive weeks and posted on a state-maintained website that lists all foreclosure sales. A sale at public auction is final and the debtor no longer owns the property.
A judicial foreclosure occurs when the creditor sues the debtor and obtains a judgment that includes an order for the sheriff to sell the real property at public auction. The sheriff then advertises the sale and holds an auction. Because the debtor was not given an opportunity to cure the default, as she was in a non-judicial foreclosure, the debtor has six months after the sale in which to redeem the property by paying the successful bidder what the bidder paid at the auction, plus interest.
How to Complete Schedule D.
Schedule D can be found here.
The first column of Schedule D is for identifying the creditor. As with all schedules for listing creditors, getting the correct address is imperative. If the creditor doesn’t get notice of the bankruptcy because the address is incorrect, the bankruptcy might be ineffective against that creditor. Underneath the creditor’s information is information about who owes the debt. This is not always the same as who owns the collateral. For example, if the debtor has a co-signer, such as a friend or relative, that person must be listed. On Schedule D, all that needs to be done is to indicate that someone other than the debtor is also liable. The identity of that other person is show on Schedule H.
The second column is to describe the property. The description should be the same as the description of the property given on Schedule A or B. Under the description of the property, indicate whether the debt is contingent, unliquidated or disputed. A contingent debt is one that might occur if certain things happen. This would be, for example, if the debtor had co-signed for a friend but the friend hadn’t defaulted on his loan. Unless and until the friend defaults, the debtor doesn’t owe the debt. An unliquidated debt is one for which the amount hasn’t been determined yet. This could happen if the debtor had been involved in an automobile accident and the damages to the other party weren’t completely known at the time of filing. A disputed debt is one where the debtor has a dispute with the creditor either over the amount of the debt or its existence at all.
The last three columns, entitled Column A, Column B and Column C, are to calculate how much of the debt is secured. In Column A, put the amount that the creditor claims is owed, even if that amount or the existence of the debt is disputed. In Column B put the value of the property securing the debt. This should be the same as the value of the property listed on Schedule A or B. In Column C, list the difference between the amount of the debt in Column A and the value of the collateral in Column B if that number is zero or larger. For example, if the amount of a car loan is $15,000, put that number if Column A. If the value of the car is $12,000, put that number in Column B. The difference, $3,000, is the amount of the debt that is unsecured, that is, that would not be realized if the car were sold for $12,000. If the collateral is worth more than the debt, put $0 in Column C. For example, if a house is worth $200,000 and the mortgage is $170,000, the difference between Column A (amount of claim, $170,000) and Column B (value of collateral) is -$30,000. This means none of the debt is unsecured, so enter $0 in Column C.
Repeat these steps for every secured debt that exists.
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