Please Help! Possible Violation Of Automatic Stay?

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[JRScott]

I don't really know never dealt with advesarial proceedings.

Did you file with a lawyer? If so have you asked them?

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[rrockinggramma]

it sounds like no hardship decision was made on your student loans. Therefore, they are NOT discharged in your BK and you would still owe on them. To fight it now would reopen your Bk and would be expensive. I wouldn't attempt it without an attorney. If you can't make some type of payment arrangements within your budget to get these loans current, then your credit score will just have to be an after thought for you. They can't garnish because you are 100 percent disabled and I am sure receive exempt benefits to survive. I would google information on hardships for student loans and I think you will find that seldom is a hardship discharge granted.

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[HHM]

No violation. The automatic stay terminates on DISCHARGE. You do not get the benefit of the automatic stay while an adversary proceeding is pending if the AP date is after discharge.

Did you even consult with a lawyer before filing BK. I guess you are in the live and learn category, but you really screwed this up...filing BK with only student loan debt and not having even enough hardship grounds to get by a motion to dismiss.

[JRScott]

This is something I think you need to ask a lawyer about , I hate that you filed a bk and got no benefit from it

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[HHM]

Yes a true nightmare indeed. :oO The reason why my Adversary Proceeding was dismissed is because my former attorney who was representing me for my bankruptcy failed to give discovery to the opposing party and failed to file motions to reconsider the dismissal / order closing case by statue of limitations.

It is my understanding I cannot reopen the case because too much time has passed since the dismissal or order closing case. I definately had a proven hardship and would and should have had all my loans discharged. The fact that private student loans are treated the same as federal loans in bankruptcy and are not automaticaly dischargable is another issue. It is unfair that private student loans do not offer the same provisions for those who become disabled.

I do not agree the automatic stay terminates on discharge since the student loans were not included in the discahrage. I should have had the benefit of the automatic stay for my student loans while my adversary proceeding and bankruptcy case was pending. The adversary proceeding was filed on 2/07 which is before the discharge date of 6/07 and the adversary proceeding was dismissed on 10/07 and the underlying bankruptcy case was ordered closed on 2/08.

Any more thoughts?

The automatic stay affects ALL creditors regardless of thier dischargeability. Discharge terminates the automatic stay and puts a permanent injunction against collection of "discharged" debts. As soon as discharge hits, any debt that is non-dischargeable (e.g student loans) is free to collect, regardless if there are any supplementary proceedings associated with the BK.

You may want to read this thread that discusses the difference between discharge and closing.

http://www.bkforum.com/showthread.php?t=10879

[MajorMike]

How the heck do you have 130K in student loans? Did you go to medical school? How did you become disabled and can your doctor back up your case?
I'm surprised there isn't a clause for disabled people as that isn't right....
What school did you go to that cost that much?
My brother in law is an attorney and his loans are 1/2 that much, and that is why I ask...

[Help!]

I may be way off base in my thinking here, but if your only debt is student loans... what is the worst that can happen if you go into default and let them get a judgment? If the limit on wage garnishment is 25%, I think I'd let them go ahead and garnish my wages. Going after creditors for violation of automatic stay is unlikely to get you anywhere (in my opinion). I think it's likely that the student loan companies will have much better attorneys than you could afford.

Besides, if they sue you to get the garnishment, that gives you an opportunity to make your case to another judge. They may take your disability into account and rule in your favor.

I'm right in the middle of my Ch. 7 and I'm getting all kinds of bills in the mail. I've even had B of A try to trick me into calling them by sending me an email stating that my online account has been restricted due to a number of attempts to access my account by an unauthorized person. I highly doubt someone's trying to steal my identity (who would want it... LOL!). Creditors play games all the time and they know how to do it and stay under the radar.

[HHM]

Help! makes a good point, going after creditors for violation of the automatic stay doesn't entitle you to damages. You actually have to "prove" damages. Violations of automatic stay typically yield sanctions and payment of your attorney's fees. But unless you have "actual" damages associated with the violation, you don't get anything.

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[HHM]

Sorry to say, you are screwed. You are living a delusion much like those people that believe federal income tax is unconstitutional.

At this point you are arguing about how things "should" be, and we are telling you how things are. The sooner you start living in the real world, the better off you will be.

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