Need Help! Violation of Discharge

[BCA2009]

I have a creditor that blatantly ignored the discharge and now I'm pssed off and want file a motion or whatever I'm supposed to do to get fines or punitive damages from them.

It is a homeowners association. The have never stopped billing me for association fees, and lawn fees and interest that were before the file date. I received one quarterly statement after I filed (violation of auto stay) and two after I have been discharged. I just ignored those.

Well yesterday I went to the property. It is an investment lot (empty Lot) and they disabled my gate access to the neighborhood. My clicker doesn't work and my manual code was turned off along time ago.

I I would think that blocking you from access to real property would count as as an attempt to force payment. I'm going to call today and casually ask why I no longer have access. I'm 100% sure they will tell me to pay up.

To top all of this off, it is illegal to block someone from their real property in the state of Florida regardless of the BK discharge. They are violating two laws.

My attorney has been unresponsive since discharge (he was great during the case). So I don't really want hire him unless I can't easily do it myself.


Are there any sample motions someone could point me to? And is there any reason why I can't do this Pro Se.

Thanks for the help.

[HHM]

The continued statements are probably not violations, or only token violations, but barring your from the property if you are still the legal owner, might be.

However, you need to check the CC&R's of the HOA. The CC&R's might give them the right to do this if there are unpaid HOA dues and fees.

As for your attorney, I wouldn't hold too much ill will, the attorney is DONE at discharge, the case is over as far as he is concerned and as far as your fee agreement is concerned.

[BCA2009]

I don't hold any ill will to my attorney at all. He was great during the case and I would recommend him in a heartbeat. But I have emailed about other questions I have had. In the first line of the email, I said I would gladly pay his hourly fee for addional consultation and he never wrote me back.

When I asked about the affirmation on a car that was never filed, he said he would get back to me and never did.

Anyway, Florida Statute 720.305 (1) (c), clearly states that the HOA can not prevent you access to your real property. They can deny access to community property but not your real property. This is not a condo complex. Just a gated neighborhood. They won't allow me thru the gate to check on my property. I actually have a boat tied to the pier at the property and lack of access prevents me checking on it.

Thanks for your response. Do you know of a site that would have samples of the motion or a way to query PACER to find other examples. I haven't had any luck just trying to query for general motions, without having a specific case number.

Thanks again.

[SMinGA]

Out of curiosity - have you continued to pay post filing HOA fees/dues?

[BCA2009]

Out of curiosity - have you continued to pay post filing HOA fees/dues?

Nope, but the statements have all of the back amounts plus accrued interest. I know they will be able to place a lien on the property of even foreclose on it if they want to. I don't care if they do. They will get their money when the property does sell anyway. They violated a whole bunch of rules by not giving me notice, not allowing me to come before the board before suspension of priveliges (sp). Even if this was an allowed enforcement they didn't follow the law in carrying it out.

Florida law has alot of statues on what an HOA can and can't do, even if it is in the "HOA documents"

[HHM]

There are no standard forms that I am aware of for discharge violations.

Try your BK districts local rules of procedure. In the local rules, they often have sample layouts for motions, etc. But as for the wording, probably not.

Basically, all you really do is write down
1. The facts (what happened).
2. The law; what law you believe they have violated (violation of the discharge injunction). It is not clear whether BK court would have jurisdiction to deal with the state law violation, but you can include that claim to show that the behavior of the HOA is improper.
3. What you want the court to do. (sanctions, damages etc).

When you are pro se, the courts are fairly forgiving when it comes to matters of form.

[BCA2009]

Thanks very much, HHM. I look up the local rules. I am also going to try my attorney one more time. He may want this one, since he can make decent fees off of it.

If he blows me off, I'll do it on my own. What have I got to lose?

[BCA2009]

Oh, well.

I called the treasurer of the HOA, he looked up my account and said somehow my access rights had been "accidentially" de-activated and that he would fix it. He had "no idea" how it happended and he had never seen that before. I have two clickers with different serial numbers. Very interesting that they both accidentially got de-activated at the same time.

I had talked to a previous board member last night about it and he said it was common for them to de-activate them when people got way behind. But I guess they are savvy enough not to verbally or in writing demand payment.

I'm convinced that they turned them off on purpose, but with no proof I'll just let it go. I'm not concerned with getting statements with the discharged debt listed, I just throw them in a drawer. I just want access to my property.

They frequently violate FL stautes and even the covenants themselves, but it's never affected me directly, so I just let it go.

I was getting all excited over taking them court. I guess I will just have a cocktail tonight forget about it.

[justbroke]

Trust me... when a creditor violates the automatic stay in an egregious and willful manner, they always claim that it was a "mistake". This is to try to keep you from taking serious actions to force them to pay damages.

Billing the pre-petition items is a violation of the stay. You could do this through a contested matter (motion for entry of order to show cause and for sanctions) or a complaint based on your District.

[BCA2009]

Thanks for the comments JB, I'm think I'm going to ride out out the statement issues a little while longer, I'm sure they will keep billing me, so I can do it anytime if I want to. My case won't close until the middle of next year (asset case).

I really think they will do something very egregious that I can catch them in. In the mean time I've got to go over there frequently to deal with my boat (until I can get rid of it) and honestly I don't want the hassle factor of dealing with a bunch morons. Once I get rid of the boat and don't have to go over there anymore I may be more inclined to press the issue on the statements. If I won a stay violation from them now it would just start a circular pain in the ass. They would take it personally and then somehow violate other HOA rules. Then I would have to take them to regular court (non-BK) and it would just get my blood pressure up.

Interestingly, violations of Florida HOA laws are alot like the violations of automatic stays. If they lose, they automatically have to pay your reasonable attorney fees and they can be fined for those violations.

I don't know if all HOA's are this way, but these guys just don't understand that they have to follow the rules too. they are a bunch of old busy bodies.

This is my first and last HOA and I don't even have a house in this one.

[justbroke]

A recent ruling by a Middle District of Florida judge gave a debtor $100 for every phone call that a creditor made to the debtor in violation of the stay. There were 50 calls so they were to pay actual damages of $5,000. To top it off, the Judge found it egregious too, and order 2:1 in punitive damages or $10,000. Yes, the debtor got paid $15,000 plus attorney fees!

This was based on I think the Hildreth,case (11th Circuit also, but Alabama) that set a "standard" for stay violations. A letter or bill is $1,000 per occurrence. Interestingly, another judge in the Middle District of Florida awarded $250 per phone for stay violations. In this particular case, In Re Samantha White, the judge awarded $100 per call.

Okay, so I'm lazy and looked up the case... In Re: Samantha White, Case # 09-04466, Chapter 7, http://pacer.flmb.uscourts.gov/pdf-new/40384015.pdf

I'm starting to like Florida Bankruptcy Judges!

[BCA2009]

A recent ruling by a Middle District of Florida judge gave a debtor $100 for every phone call that a creditor made to the debtor in violation of the stay. There were 50 calls so they were to pay actual damages of $5,000. To top it off, the Judge found it egregious too, and order 2:1 in punitive damages or $10,000. Yes, the debtor got paid $15,000 plus attorney fees!

This was based on I think the Hildreth,case (11th Circuit also, but Alabama) that set a "standard" for stay violations. A letter or bill is $1,000 per occurrence. Interestingly, another judge in the Middle District of Florida awarded $250 per phone for stay violations. In this particular case, In Re Samantha White, the judge awarded $100 per call.

Okay, so I'm lazy and looked up the case... In Re: Samantha White, Case # 09-04466, Chapter 7, http://pacer.flmb.uscourts.gov/pdf-new/40384015.pdf

I'm starting to like Florida Bankruptcy Judges!

I might have to re-think the "hassle factor". Do you think the longer I wait to make an issue of it (and continue to receive more statements) would deminish the likelyhood of me prevailing.

Also, other than the numerous notices that they received from the court. Do I have to request that that stop sending me bills for the pre-petition debt in order to be successful at an automatic stay violation?

I'm aslo curious how this would be different (maybe it's not), from Bank of America sending me a statement every month. my second stopped sending statements, but BOA never missed a beat. I plan on continuing to pay them, so I like getting the statement, but it's curious why they do. It doesn't say anywhere that it "is not an attempt to collect" or "informational only". It is the exact bill I have been receiving for 5 years with the monthly payment and the current payoff amount.

[justbroke]

I might have to re-think the "hassle factor". Do you think the longer I wait to make an issue of it (and continue to receive more statements) would deminish the likelyhood of me prevailing.

Yes and no. They would have still violated the stay. That you waited so long, could cause the award of damages to be mitigated.

Do I have to request that that stop sending me bills for the pre-petition debt in order to be successful at an automatic stay violation?

Not necessarily, but it helps! There is noting in the Code, as one judge opined, that requires the debtor to tell the creditor that they are in violation of the stay for it to be a willful violation.

I'm aslo curious how this would be different (maybe it's not), from Bank of America sending me a statement every month. my second stopped sending statements, but BOA never missed a beat.

That may still be a stay violation, but if you were to send them a letter, I'm sure they'd stop promptly!

[BCA2009]

Ok, this got me doubting myself about the BOA statements, so I went and looked. I filed 12/31/2009. I received the 1/5/2010 statement (they hadn't received notice yet). I can't find the 2/5/10 statement (maybe they didn't send it). But I have received every stament since. Maybe it is because I checked "intent to re-affirm"

But I re-read the statements and they are word for word the exact same as I always have received.

Like I said earlier, I'm glad I'm still getting them, so I don't care, just curious.

[justbroke]

Intent to reaffirm means nothing from a stay perspective. There's nothing in 11 USC 362 which reads that the automatic stay does not apply to a creditor for which the debtor "intends" to reaffirm.