violation of automatic stay?

[chrisandsarah]

Ok what happens if...

you file chapter 7 on Oct. 31st

341 held on Nov. 24th (or it was the 25th, I forget now)

We said we wanted to reaffirm, but the car company refuses to send one

The car company didn't show to the 341, nothing has changed in pacer or with the case, and they did not file for relief from stay...

And they came to pick up the car tonight... Isn't that a violation of stay and what is the next step I take? I file pro se. I'm not expecting a discharge until the end of January...

Thanks.

[chrisandsarah]

I did just find in pacer where it says this:

The Debtor(s) is/are certified as having complied with all filing requirements of 11 U.S.C. sec. 521(a)(1), with the exception of subparagraph 521(a)(1)(B)(iv), which is not filed with the Court pursuant to Administrative Order 05-04.

what does that mean?

[dingdong]

I think this is what they are referring to

(iv) copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor;

found it here>

http://doney.net/bkcode/11usc0521.htm

Did you turn in your 2 months of paystubs with your petition?

[chrisandsarah]

i had actually written to them and said that i didn't have a job or bank account for the 2 months before... the trustee asked me the same thing and it is recorded in my meeting that i said i didn't have either of those....

[dingdong]

I believe the administrative order part is what makes it ok.

I don't think that is anything to worry about.

[dingdong]

An you are not discharged yet? Then the stay should be in effect.

[chrisandsarah]

no i'm not discharged until the end of Jan. And when i call the status still says "awaiting first meeting" and on pacer is says "awaiting 1st meeting" as well, even though my 341 meeting was in Nov. So my status isn't dismissed or anything. So what do I do now? Call the court and ask what? Or call the car company? This is so confusing....

[dingdong]

Did you use an attorney. If you did, I would call him/her ASAP.

Oops, just read your first post.

As long as the stay is in place , and there was not motion for relief from stay, you should be protected by the stay from any repo, I would believe.

You should probably wait for one of the MODS to chime in, they can give you better advice then I can.

I would guess you would have to call the lender and tell them they violated the stay and are subject to sanctions and to get your car back to you pronto!

[chrisandsarah]

Yeah I guess that's what I'll do but this car company has been terrible to deal with... They have violated many ftc rules but don't even care. What do, or how do I let the court know about this? Thanks.

[dingdong]

I believe you can get an attorney and sue them in BK court.

You might just be able to get firm with them, threaten them with sanctions and get your car back and be done with it.
Again, I am a rookie, so don't rely on my advice.

Read below.>>>

Subsection 362(h) describes the penalties that can be assessed for violations of the Automatic Stay. It reads as follows:

(h) An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.

Note that subsection (h) only refers to individuals, Moratzka v. Visa U.S.A., 159 B.R. 247 (Bankr. D. Minn. 1993); corporations which find that they are victims of stay violations must resort to the general contempt powers of the Bankruptcy Court under 11 U.S.C. Section 105 to obtain relief. See In re Chateaugay Corp., 920 F. 2d 183 (2nd Cir. N.Y. 1990); Jove Eng'g v. I.R.S., 92 F. 3d 1539 (11th Cir. Ala. 1996). It is also important to recognize that subsection 362(h) is considered as an additional right for debtors and not foreclosing other remedies that might be available to debtors. 130 Cong. Record 6504 (House March 26, 1984).

This subsection has been interpreted to have a restriction built into the remedies available: the violation must be "willful" in order for damages and attorneys' fees to be awarded. An example of how "willful" has been defined some courts is contained in Atkins v. Martinez, 176 B.R. 1008 (Bankr. D. Minn. 1994): "The element of deliberation that is contemplated here, of course, is the specific intent to proceed with an act, knowing that it is proscribed by a court order". Recently, the First Circuit decided Fleet Mortgage Group, Inc. v. Kaneb, 1999 WL 1006329 (1st. Cir.) and described how "willful" will be defined in this circuit.

The Court concluded that a willful violation does not require a specific intent to violate the stay. The standard under Subsection 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation. Kaneb, supra. at 2. Further, where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate. Kaneb, at 2. Finally, the First Circuit gave guidance as to the burden of proof in stay violation actions. "The debtor has the burden of providing the creditor with actual notice. Once the creditor receives actual notice, the burden shifts to the creditor to present violations of the automatic stay." Kaneb, at 2.

Also of interest in the Kaneb case is that the debtor was awarded damages in the sum of $25,000 for emotional distress and $18,200.68 in attorneys' fees and costs of appeal. The emotional distress damages were deemed appropriate, in part, due to the specificity with which the debtor was able to describe the harm he suffered as a result of the bank's stay violations. Counsel should carefully read this decision to learn what to do (and not to do) in prosecuting and defending stay violation actions under subsection 362(h).

There are two types of proceedings that can be brought: a "motion for order to show cause" which requests the Court to issue an order requiring the offending creditor to appear before the Court and explain its conduct (reminiscent of Ricky Ricardo telling Lucy that she "has some esplainin' to do"); or a formal adversary proceeding (summons and complaint). Either mechanism for bringing the mater to the Court's attention appears to be equally effective, unless the creditor is an individual or business with few contacts with Maine - in that scenario, the summons and complaint process is best to catch the attention of the offending creditor.

The Kaneb decision should be well cited for years since it may spawn a new pursuit of stay violators. While debtors may have been willing to let creditors off the hook with minor sanctions for a stay violation in the past, more significant sanctions could be sought in these matters in the future. The prospect of stay violations by credit card companies can only increase as the card companies and/or their accounts are bought and sold. Currently, credit card accounts in bankruptcy are considered commodities to be exchanged. It is expected that the selling companies will not always adequately label the accounts they package for sale, or that the buying companies have procedures in place to address bankruptcy concerns. Automatic Stay violators beware!

[chrisandsarah]

Ok i called the court and they said the car company has not filed a relief from stay and therefore had no right to take the car yet. But the lady I spoke with couldn't tell me what to do, as they can't give out legal advice...

So how do I file sanctions with the court? Is it just a letter I write to the judge explaining what happened and what I'd like them to do about it?

Examples of what to write would be apprectiated!

[dingdong]

I think you need to start an adversary proceeding in the BK court. Kind of like a mini lawsuit within your bankruptcy case.

You may be able to circumvent that by just getting firm with the lender if you don't want to go to all of the trouble of an adversary proceeding. Tell them they violated the Federal BK stay and you will start sanction proceedings in BK court if they don't bring the car back right away.

Peronally, I would probably call an attorney. I am sure AP can be tricky and they may actually be able to get you some form of damages. I know they can award attorneys fees and punitive damages for stay violations. You may actually not have to pay anything if the court rules in your favor, since the lender would be liable for attorney fees if you win. I am not sure if a lawyer in an BK adversary takes cases on contingency or not. Call an attorney, tell them what is going on and they would probably advise you best on your next step. Perhaps they can send an Intent To sue letter for you for a small fee?

I am not sure, I really have no experience with this.


Hopefully someone with more knowledge will chime in.