Chase wants Payment in Full after Discharge of BK...my letter to them?

[tobee43]

I LOVE this letter, especially the HUGE CEASE and DESIST part of it!

lol! it was so much better in person since it was in such nice bold and big black letters. oh and underlined for that "special" look LOL. it looked scary. as one person who reviewed it for me said, i would not like to met you in a dark alley LOL!!!!! it really was a form of therapy for me, i just hope they foreclose soon

i did get back the green slips from chase and their atty. so they have the letter...can't wait to see what's next.

[GoingDown]

haaaaaaa....

so we get a letter rep'ing Chase, or actually from an atty stating they are rep'ing them...but also suggesting there may be another creditor??? too weird... they are now stating they are going to pursue suing us for the balance of our mortgage PLUS interest and fees (they are almost 200k) the law firm is legit. but the letter they sent is so poorly written, they continued to cite the fair debt collection act, how that act really doesn't protect me from them taking legal action and so on and so forth. in one line said if you have been discharged from a bk, the firm is not attempting to collect a debt but rather this notice is for information purposes and to pursue an in rem remedy as to the collateral only...i ask what collateral LOL! in rem....so now they are suggesting we are serial filers of bk, and the courts have our property????? it's not sent registered, or cert mail. but it's real. they are asking that i send them a check for $562,326.17 ROFL!!!!

here's my preliminary letter i have to work on. i'd like some comments if anyone has any. i know i don't really have to even bother to answer them. but i'm thinking this is such a blatant violation that it should be pursued. if it didn't come from a firm which has been business for over 40 years, not meaning that makes them any more special, but it does land them some credibility...i suppose.

i have removed all names and dates etc.


From:


December 2012

Via United States certified mail, return receipt requested,

To:

Re:

Your Reference:

Cease & Desist
Dear ,

We are in receipt of your letter dated December ,2012, stating your firm has been retained for the purpose of legal action against for a debt with JPChase as the creditor and suggesting there is another creditor, requesting payment in the amount of $562,326.17.

As per the US Bankruptcy Code YOU AND YOUR FIRM ARE REQUIRED TO CEASE AND DESIST ALL CONTACT BY MAIL, PHONE OR OTHERWISE IN A EFFORT TO COLLECT ANY DEBT THAT HAS BEEN DISCHARGED IN A UNITED STATES BANKRUPTCY COURT, OR TO FILE OR CONTINUE A LAWSUIT, OR TO TAKE ANY OTHER ACTION TO COLLECT A DISCHARGED DEBT FROM US:

We have knowledge of the following actions from you and on the creditor’s behalf:

1. JPMorgan Chase Bank, National Assoc., has been and is aware of the filing of and discharged and close Orders issued in the case of our Bankruptcy. They have been in violation of the order in the past. By copy of this letter they are also being put on notice.

2. Your letter is a blatant violation of the Bankruptcy Code section 524 (a) (2) which provides that a discharge operates as an injunction against the commencement or continuation of an action, the employment of process, or an act to collect, recover or offset any such debt or claim as a personal liability of the Debtor.

3. Further your threats to take legal action against us citing the Fair Debt Collections Practices is a continued misuse of the system and its practices.

4. Your attempt to pursue an in rem remedy, is both slanderous and a bit (just about 5.5 years) off point. To suggest that we are serial filers are grounds for us to file suit against you. In rem actions are permitted only when the court has control of the property or where its authority extends to cover it, there is no situation that warrants such action.


5. The Code very broadly defines “claim” to include any right to payment or right to an equitable remedy if such remedy gives rise to a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, legal, equitable, secured or unsecured. [Code sec. 101 (5)].

We find it appalling that we have to remind you that the discharge automatically voids any judgment at any time obtained to the extent such judgment is a determination of the personal liability of the debtor on a discharged debt. Thus, should a creditor institute suit in a state court after the discharge, and obtain a judgment against the debtor, the judgment is rendered null and void ab initio, even if no affirmative defense was interposed. The purpose of these provisions is to make it absolutely unnecessary for the debtor to do anything at all in the state court action.

Attached for your records are copies of the Order of Discharge for ____________ AND the Order of Approving Trustee’s Report of No Distribution. Both issued ______________.

Upon receipt of receiving the order of discharge, you are put on notice that if you continue to contact us,you will violate the injunction provisions at your own risk. Such violation is an invitation to contempt proceedings. Violation of the order of discharge is considered contempt of court.

The bankruptcy court has the inherent power to punish for contemptuous conduct. [Code sec. 105 (a) and Rule 9020 (b)]. Case law is replete with references that violations of the discharge injunction are not to be taken lightly and will not be tolerated.

If you do not cease and desist your attempts to collection or continue to contact us, we shall follow the stated actions below:


File A Contempt Motion. A regular motion brought in the bankruptcy court will be filed against you and the creditor and is sufficient to seek contempt. Since our bankruptcy case was closed, we will, if necessary seek to the re-opening of the case pursuant to Code sec. 350 (b). If necessary, we will immediately seek an injunction to stop you and the creditor, you represent from executing any further legal action, an order to show cause can and will be brought.

Request from the Court Sanctions, Punitive Awards and Attorneys Fees. Bankruptcy case law provides that a debtor may collect costs, reasonable attorneys fees, sanctions, punitive damages, and compensatory damages against creditors and their attorneys who violate the order of discharge. We will pursue this aggressively.

The courts have held that a collection attorney has a continuing obligation to review and reevaluate his pleadings upon discovery that they may be without merit or in violation of the law. Thus, it is imperative we put you on notice by certified mail that you and your client are violating the Bankruptcy Code to establish your duty of inquiry.

As you are aware, there are many cases were sanctions and punitive damages have been awarded in the thousands of dollars against creditors and their attorneys for violating the order of discharge. We ask and request that you take heed of the power of the discharge issued by the courts immediately.




Very Truly Yours,

___________________________ ___________________________



CC: JPMorgan Chase Bank
Attached: Copies of Orders of Discharge and Close

I LOVE this letter, especially the HUGE CEASE and DESIST part of it!

[tobee43]

yes, i did send it. but i haven't heard a work back. actually, i was expecting to. i was just hoping they would begin the foreclosure. hopefully it will happen this year.

[FairyPoor]

Tobee, did you send the letter, or hear anything back from these people? Just wondering, because I am certain I will be getting a few of those letters soon.

[tobee43]

Just getting back in from work today. Ugh one of those days. Anyway I didn't understand this was for the house. I thought it was a credit card or something. But regardless have fun with them, but that disclaimer is what every creditor that has gone through BK gets. It keeps them exactly out of the trouble you think they may be in.

They are just noticing you and it says that very clearly - so ignore the rest of the text is their defense.

Hopefully they will do something with the place soon so maybe it will be fodder for them when you respond.
Good Luck!

well since this firm that wrote it is not only a collection firm, but i did find out today that they also handle many of the foreclosures! that's why what LITR says about the in rem remedy could be applicable and perfectly legal if that was their purpose.

problem was, they used it incorrectly, and, although no big deal, i think it's important to mess with them. you know i LOVE to be noticed...NOT! but if you do, do it correctly please. LOL!!!!

funny thing was the atty i spoke with today, says i could get a response. i laughed so hard, i said really, then we really have a violation...nice and clear. LOL!

who knows maybe our next letter they will attempt to sue me for a deficiency!!!

now that's really something we can sink our teeth into and NEVER let go

[tobee43]

The wording does matter, and I see where you are going. I had a similar issue with a post-petition creditor who also included the disclaimer but actually wrote that they'd take post-petition payments and apply them to pre-petition "discharged" debt. Big no no!

So, yes... it's all in the wording.

right you are jb, and that's exactly my point. and that's exactly what they were attempting as well.

these atty's must be responsible enough, and again, it's also my fault for holding them to a higher understanding of the law since they have degrees in it, that they should be cautious and do their at least a little home work prior to sending out a "form" letter than may not be exactly applicable. in this case, it was just the wrong push of that form button.

the wording at best is arguable and again that's partially my point. so, i had a good time writing the C & D and actually this atty i spoke with today thinks it may get their attention.. but certainly not enough gas to carry my motion at this point.

[tobee43]

Toobee, I think you misunderstand what "in rem" means. It means they are proceeding against the property, not you as an individual. It doesn't necessarily mean they intend to file anything in BK court. A foreclosure filed in a state court is an in rem proceeding. They are not violating the automatic stay by threatening to foreclose if you do not pay the mortgage balance. It sounds like that is what they are basically doing.

They may finally take that property off your hands... If they can find it under the swamp!

ROFL!!!!!! you are so right!!! and we hear now it's really a mess.

thank you, yes, i promise i understand what an in rem remedy is promise! my point here is that's it's still consider a legal action, and not usually done at this point...usually when the property is in the courts hands...not after a discharge. my entire point is their wording and how they used it, incorrectly. it's perfectly legal, and actually required for them to send any and all steps of the foreclosure, but that's not what this letter implied at all. wish it did and after today i hope it does.

They are not violating the automatic stay by threatening to foreclose if you do not pay the mortgage balance.

no they aren't, but they are when they are asking me to pay them in full or they will pursue legal action, which is what they have done.
little do they know how nonthreatening it would be if they threatened me with foreclose. i would jump for joy!

the atty who reviewed the letter today, agrees, this is really close to the line, as they ask me outright for the payment...and for the money to be sent. of course as usual i had made my argument and he understood and thought it a good idea for the C & D to be sent. again ONLY to begin the paper trail...and just in case. i'm just hoping and can taste that foreclosure i hope, i hope!

i was lucky to have someone review it that knew the firm that sent it and unfortunately it was just one of those form letters, which i knew, but took them to task on it...come ON you know me by now LOL!!!! says they are not the brightest and agreed they should thought about their wording a bit further as he sees and understands my point clearly after his review. he also agreed and for the sole purpose of just notifying them and putting this on the record is the point here...really nothing else. i know they can't do anything to me...except....


whoooooooooooooopppppppppppeeeeeeeeeeee.... maybe just maybe...they will finally foreclose!!

yes, virginia there MAY REALLY be a santa!!!!

[justbroke]

What was the "exact" wording of their disclaimer?

The wording does matter, and I see where you are going. I had a similar issue with a post-petition creditor who also included the disclaimer but actually wrote that they'd take post-petition payments and apply them to pre-petition "discharged" debt. Big no no!

So, yes... it's all in the wording.

[df04527]

Just getting back in from work today. Ugh one of those days. Anyway I didn't understand this was for the house. I thought it was a credit card or something. But regardless have fun with them, but that disclaimer is what every creditor that has gone through BK gets. It keeps them exactly out of the trouble you think they may be in.

They are just noticing you and it says that very clearly - so ignore the rest of the text is their defense.

Hopefully they will do something with the place soon so maybe it will be fodder for them when you respond.

Good Luck!

[LadyInTheRed]

Toobee, I think you misunderstand what "in rem" means. It means they are proceeding against the property, not you as an individual. It doesn't necessarily mean they intend to file anything in BK court. A foreclosure filed in a state court is an in rem proceeding. They are not violating the automatic stay by threatening to foreclose if you do not pay the mortgage balance. It sounds like that is what they are basically doing.

They may finally take that property off your hands... If they can find it under the swamp!

[tobee43]

guess what frogger....there are missed spellings and you think my typing is bad...ROFL!!! the letter was poorly written and legally void in many repects. high priced or not and these guys are. i just hold atty's to a higher standard and they should have done their due diligence prior to sending out a letter that is a violation of the bk code. that's all, and i love to make a point or two even if it gets trashed.

LOL!! i'm so glad you care, it makes me feel so much better and so did writing that C & D letter !!!

really, my only and most important goal was to begin to "record" their communications and start to make an official record, if you may, of their attempts. just in case it begins to get worse.

[frogger]

if you have been discharged in bankruptcy, the firm is not attempting to collect a debt from you personally but rather is providing this notice for informational purposes

And you have been informed. I would not waste any time with this. You can bet your donkey that they had a lot of high-priced lawyers preview and review this statement before it ever went into the form letter.

And while someone "might" read your letter, no one cares........ (present company excluded)

[tobee43]

"please be advised that our firm has been retained for the purpose of pursing legal action. (here's the disclaimer): if you have been discharged in bankruptcy, the firm is not attempting to collect a debt from you personally but rather is providing this notice for informational purposes and to pursue an in rem remedy for the collateral only. this firm collects debts and information obtained will be used for that purpose."

now...frogger, you understand what an in rem remedy is...and i'm being a smart butt here...LOL!!

before the 2005 bankruptcy amendments, in rem orders were a somewhat common method of thwarting serial bankruptcy filers. as one court put it:

"an order granting in rem relief from stay is an appropriate remedy when a debtor or transferee of a debtor serially files bankruptcy petitions solely to invoke the automatic stay. in rem relief renders the automatic stay in any future bankruptcy cases inapplicable to the lender’s foreclosure of a particular res, regardless of who owns the property or files the case. in rem relief thus addresses circumstances when the debtor is likely to invoke the automatic stay to frustrate foreclosure efforts through repeated filings, whether by the same or different persons. rather than barring the debtor from filing a bankruptcy case in the future, the in rem remedy directly addresses abuse of the automatic stay by prospectively eliminating it with regard to the lender’s collateral even if there are future bankruptcy cases."

not an exact quote there, but it's mostly from memory and close.

so, in the same sentence they say they are not attempting to collect a debt, but they are doing this to pursue legal action against us, which is the core of the violation here....besides the letter further asking us to send them a check and if we don't they will also file a law suit before the 30 day mark as the fair debt act allows them to do so.

the law is clear, after a discharge any debt that was discharged warrants and demands no further action, meaning: NO CALLS, NO LETTERS, NO THREATENING OF LEGAL ACTION...NO communication whatsoever is to be done from the creditor to the debtor on a debt that has been discharged. period. none and that means nothing.

of course as i stated above there are some very narrow exceptions to this rule. but only with respect to the foreclosure notices which they are legally obligated to send.

[frogger]

What was the "exact" wording of their disclaimer?

[tobee43]

also df04577 i didn't mention this but i'm fully aware there are some very narrow exceptions to this rule. such as a surrendered home or other real property. in my case we did surrender our home.

i know that often times the creditor has to proceed to foreclosure in order to wipe out other debts related to the house- i.e. mechanics liens, tax liens, etc. with these situations, and in such a case the creditor is required by federal law to send notices to the debtor regarding the progress of the foreclosure. however, the creditor is not allowed to attempt to collect the debt from the discharged debtor through the foreclosure process – only provide required notices. while it's true that creditors will put disclaimer language within the notices that advise the debtor that if he or she has filed bankruptcy this is not an attempt to collect a debt the language was clear in this notice to send them the check in full and to make certain i was aware that there will most likely be additional costs of interest and fees so to make certain they are contacted before the check is deposited so that can give me the increased amount due. that's as clear as it gets to me! LOL!