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Update on USAA Repo/Stay Violation/Court Case

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  • Update on USAA Repo/Stay Violation/Court Case

    I know I haven't posted anything on this in a while, but I wanted to let you know what's been going on with the car that my lender repo'd three weeks after we filed. I have another post on here about the initial details of that.

    Anyway, I had to end up filing a motion for contempt, sanctions, and an emergency hearing to get the car back pro se, as my attorney was too busy to handle it at the time. The judge granted my motion for an emergency hearing, which was set for today. My attorney did end up getting involved after the action was filed (she said that I did a good job drafting the motion, btw ). She did file an amended motion that named the towing company as an agent of the lender.

    On the day that the lender received notice of the motion via overnight mail, I got a call from them saying I could get my car back, no strings attached. I did finally manage to get it back that week.

    The best thing about what happended in court today is that as a debtor, I finally felt a sense of empowerment that is hard to come by during this process. The judge was not happy at all with the lender or the towing company, and that is a HUGE understatement. He basically said that they had violated a direct court order which means that they had violated the integrity of the court. He also put the defendant attorneys on notice that there would be NO settlement in this case - that he expected to hear the case on its merits. He told them that he could not fathom what kind of defense they could present, but they better be prepared, and then he set an evidentiary hearing.

    Recently, we've been trying to work out a deal under which I may be able to redeem the car. The judge told the lender's counsel that if they want to make the business deal, make it, if not don't, but it won't change what he does going forward.

    You should have seen the lender and tow company attorneys in there. He basically put them on notice that this would probably not end well for me. Of course, If they'd only returned the vehicle when I made the initial request, this wouldn't have happened. I wasn't being vindictive; I just needed my car. Now, I couldn't stop the process even if I wanted to.

    Too bad for them, but I wanted to let you guys know that if a lender violates the stay, you may want to see them in court .
    Filed Ch 7: 6/11/09
    341 Meeting: 7/21/09

  • #2
    HaHa!!! Great story and glad you fought back!!! The little guy won....
    May 2008 Hired 1st Attorney/Stopped paying CCs
    May 21, 2009 Retained 2nd Attorney
    May 28th - Filed for Ch 7 (FINALLY!)
    9/11/09 - DISCHARGED!!!!


    • #3
      This is fantastic!

      Would you mind sharing the resources you used to figure out how to draft the motion?


      • #4
        Great work! Ask the judge to disallow their secured claim
        7-2-2009 Filed
        8-28-09 341 Concluded, no assets
        10-28-09 DISCHARGED/CLOSED!!!!


        • #5
          After many hours of searching for just the right motion to use as a sample, I found a case motion of the Southern District of Texas, Galveston. Eagle Broadband (Debtor), Case #: 07-80605, Filed 11/16/07

          I found that the clerk's office employees were quite helpful with infomation about notice and filing requirements.

          @whipster1: Wouldn't that be nice! I wish it worked that way
          Filed Ch 7: 6/11/09
          341 Meeting: 7/21/09


          • #6
            WOW WOW WOW WOW!!!

            i've heard SO many times how judges ignore the law and just help the big guys. so this is really wonderful to see.

            your motion was probably so well drafted, your lawyer got involved because it was so good. not only that, your lawyer will be getting attorney's fees from them, so of course your lawyer is interested... i think you should get the "attorney's fees" for preparing and filing the motion!
            filed ch7 May 09
            341 june 09
            discharged, closed Aug 09


            • #7
              Good Job!
              4/09 Converted to a Ch 7 due to loss in dh's income
              5/09 UST now involved no idea what happens next
              7/09 UST has decided to withdraw his motion to dismiss!
              7/27/09 DISCHARGED!!!


              • #8
                Thanks for the update.
                No Asset 7 closed 11/09


                • #9
                  That's weird, I was just thinking about your situation this morning! Thanks for posting an update, I'm stoked it worked out for you. Please let us know how this plays out and how it all ends
                  Filed 5/12/09
                  341 6/11/09
                  discharged 8/11/09
                  Closed 8/14/09


                  • #10
                    I'm happy so far with the way things are working out; however, I have to prepare for a "trial" about this. I'm already hopelessly behind on so many projects just preparing for BK. I really wish I didn't have to dedicate any more time to it, but the lender forced my hand. My lawyer said she's almost certain a few people at the lender will lose their jobs over this one. I don't wish that on anyone, but it is what it is. Good news is I may be able to recover the time spent on this issue as damages.
                    Filed Ch 7: 6/11/09
                    341 Meeting: 7/21/09


                    • #11
                      Wow, awesome job man. So since I am new to this still let me make sure I understand. This is a car you had a loan on and IIB, and they obviously came after it too quickly. When can they actually come for it, after the discharge?
                      New Orleans: Home to the World Champion Saints, the biggest enviromental disaster and the biggest natural disaster in the history of this nation. Proud to call it home!


                      • #12
                        Actually, they were supposed to file a motion to lift the automatic stay, which goes into effect when bankruptcy is filed if they wanted the car. Based on my understanding, under NO CIRCUMSTANCES can a lender included in the petition repossess, foreclose on or do anything to collect or enforce a debt or lien without the court's permission. That's where they screwed up. Also, apparently this judge is a former debtor's attorney, which should tell you a little about his sensibilities in these matters .
                        Filed Ch 7: 6/11/09
                        341 Meeting: 7/21/09


                        • #13
                          Originally posted by daedalus View Post
                          I'm happy so far with the way things are working out; however, I have to prepare for a "trial" about this. I'm already hopelessly behind on so many projects just preparing for BK. I really wish I didn't have to dedicate any more time to it, but the lender forced my hand. My lawyer said she's almost certain a few people at the lender will lose their jobs over this one. I don't wish that on anyone, but it is what it is. Good news is I may be able to recover the time spent on this issue as damages.
                          it won't be so bad. i bet the lender will stipulate to most facts during discovery (they can't very well deny that they repo'd and when, can they??), so your testimony preparation wouldn't be hard. the rest would be done by your lawyer, who will be happy to present at the end her (inflated) billable hours at an insane rate to be paid for by the lender.
                          filed ch7 May 09
                          341 june 09
                          discharged, closed Aug 09


                          • #14
                            Glad the judge saw your side of the case.

                            I hope things go smooth in the future
                            May 31st, 2007: Petition Filed by my lawyer
                            July 2nd, 2007: 341 Meeting Held
                            September 4th, 2007: Discharged and Closed.


                            • #15
                              Wow, this story is inspiring! Any chance that the documents are available somewhere to be used as a template?

                              I'm in Ch 13 and one bank continues to take automatic payments (causing bounced checks with the hefty fees attached) for a loan listed on Schedule F as an unsecured, nonpriority debt -- for about 18 months now.

                              I'm an attorney, but not a bankruptcy attorney. I don't litigate. I'd love to see how far I can go pro se. I don't even know whether to file in bankruptcy court or in federal district court.

                              Any guidance would be greatly appreciated! Extra kudos to anyone who can point me toward some template of how and what to file!



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