WTF??? BoA processed payments AFTER BK notification!!!

[lrprn]

Well, I hate to throw cold water on this discussion, but taking a creditor to court to get sanctions for violating the automatic stay is not a quick and easy proposition.

OP, get your money back first. Then decide whether to take BOA to court for violation of the automatic stay.

[2Bshinyandnew]

Well, I hate to throw cold water on this discussion, but taking a creditor to court to get sanctions for violating the automatic stay is not a quick and easy proposition.

OP, get your money back first. Then decide whether to take BOA to court for violation of the automatic stay.

What is the point of having the protection of the automatic stay if creditors can arbitrarily violate it, even if it is for a small (relatively speaking) amount of money?

[lrprn]

What is the point of having the protection of the automatic stay if creditors can arbitrarily violate it, even if it is for a small (relatively speaking) amount of money?

Welcome to how the law works in the U.S. It is against the law for a creditor to ask for a payment/take a payment automatically after a debtor has filed for bankruptcy. However, to get the court to pay damages (the famous $1000 for each violation), usually you have to prove that the taking of the payment damaged you - loss of an asset or you were required to take out a ridiculously high interest loan to make up for the money taken, or public damage to your reputation, for example.

Since this activity is above and beyone what the typical bk lawyer does to represent you, you have to pay your lawyer (or another lawyer) more above your bk fees (although often a strong bk lawyer will take the case on contingency for an open-and-shut case knowing they will get paid from the fines levied).

Is what your lender did wrong? Yes, of course it was wrong. But as unfair as it is, it's up to you to prove it. And proving it is likely to cost money out of your pocket to do so. How much is it worth to you to take your creditor to court?

[Flamingo]

Flamingo, I understand where you are coming from; however, I disagree with part of your statement. You are definetly RIGHT when it comes to informing the OP's attorney. I agree 100%.

However, I too had two separate hardship arrangements worked out when I filed. One was with BOA and the other was with CHASE. In those arrangements I had an auto draft from my account. I called and cancelled the autodraft before filing BK. I canceled the entire program BECAUSE I was filing BK. The auto drafts stopped. I filed and so far the stay has not been violated.

The OP's case is different. He stopped the hardship program. He called BOA and they continued to auto draft his account. IT IS THE CLICK OF A BUTTON. This is not a difficult thing to do. BOA continued to draft his account without permission. In my opinion, this is worth sanctions from the court for the OP. Even if all the funds go to his attorney and the trustee - BOA needs a lesson.

No where in my posting did I say B of A was correct in what they did...I mentioned what PROBABLY occurred in the OP's situation. What occurs in one person's situation may not occur in another; therefore, what occurred with you as to everything working perfectly may not occur for someone else with the same situation/creditor. Banks/creditors start reacting when they receive the BK paperwork from the Court. Some act more quickly than others in getting respective people/departments notified. That is nothing new to any of us who have filed and been through it. That is why many people continue to get phone calls several days to a few weeks after filing with the Court. Something could have been delayed in the OP's situation which was not the OP's fault. However, as I stated, since the OP already filed and is represented now by an attorney, they may not deal with the OP directly on this and just work with the OP's attorney. There should be no problem in getting this straightened out as there is obviously a delay problem or miscommunication on the part of B of A.

[Tbornetun]

I agree with lrprn, it is not worth the effort. Of course you should attempt to get your money back. BUT...I have stated this before in other threads and have people jump all over me about principal.
If it were me, I would just rather move on with my life than spend the time and money trying to fight for something that may only cover the atty fees.

Get your money back and drop it. Move on.

[dunno]

Spoke to BK dept this am - as mentioned above, they are sticking to the "different department, You must notify to discontinue auto-draft or it will continue" line...

I reiterated that I HAD canceled the program, it is not my fault that "someone" failed to cancel the auto-draft.

I was not angry or beligerent, just insistent. She told me I must wait 10 days from the draft to request refund or return, but that it should not be a problem. ALSO, that if the drafts caused overdraft fees, they'd even reimburse those with proof that it happened (faxed copy of bank records).

I just EXPECT with everything so computerized, I SHOULD NOT have to approach each transaction individually.

But hey - a lesson for everyone, huh?

[2Bshinyandnew]

Thanks for the follow-up!

Hope your money back soon. Did you contact your lawyer?

[dunno]

contacted atty but she has not responded to it.

I'm fine as long as I get it back soon after the 20th and that they don't apply it to the closed BoA checking account (neg $320) at filing)

[dunno]

update

Spoke with bankruptcy depart rep again on the 19th, as instructed.

This guy (Richard) told me that the trustee will expect all moneys paid to creditors for 90 days prior to and after the filing to be returned to the trustee to pay back my creditors and that I CANNOT have the fund refund directly to ME.

This is creating a huge hardship for us. That is $430 dollars I realy needed right now!

Is this info correct???

[2Bshinyandnew]

Hi Dunno,

Richard may be partially correct in that BOA may have to return the money to the trustee, but I'm willing to bet Richard is NOT correct in that the money was/is/going to be an asset to be distributed to all your creditors.

You filed a CH7 right? Were there any assets? if no, the money should go back to you.

In my opinion, Now is the time to call your lawyer and pick up the pace a bit. Any chance you got Richard on a recording giving you his little legal pearl of wisdom?

Of course I'm not a lawyer and each states exemptions vary, but I believe most, perhaps even all all post BK7 filing income is exempt from being taken by the trustee and distributed to your creditors. The money swiped from your account was post-filing funds, correct?

[dunno]

2B:

We filed CH13.

But how CAN they process a pmt AFTER being notified of the filing???

(well, duh, clearly they CAN - they DID)

But HOW are they allowed to withhold the mistakenly taken payments from me?

Is the only way to get it back thru the courts?

[AngelinaCatHub]

2B:

We filed CH13.

But how CAN they process a pmt AFTER being notified of the filing???

(well, duh, clearly they CAN - they DID)

But HOW are they allowed to withhold the mistakenly taken payments from me?

Is the only way to get it back thru the courts?

[dunno]

Closest BoA is in another state - just ATMs in Utah.

My overdraft at BoA was also a mistake - I canceled the IRS repayments prior, but even THEY couldn't manage to stop the proverbial "push of a button" prior to the filing.

How do they get away with telling I should've KNOWN to CHECK to make sure they canceled everything, tho? Isn't it COMMON to assume that if the COMPANY has been notified, that the company will behave as required? And if they didn't, they would move to rectify?

I don't get this.

[2Bshinyandnew]

Closest BoA is in another state - just ATMs in Utah.

My overdraft at BoA was also a mistake - I canceled the IRS repayments prior, but even THEY couldn't manage to stop the proverbial "push of a button" prior to the filing.

How do they get away with telling I should've KNOWN to CHECK to make sure they canceled everything, tho? Isn't it COMMON to assume that if the COMPANY has been notified, that the company will behave as required? And if they didn't, they would move to rectify?

I don't get this.

I realize that it may cost $$$ to have your attorney get involved, but it seems as though BOA doesn't care that they are violating the automatic stay.

If you want to try and take care of it on your own, I would go to the Utah U.S. District Bankruptcy Court Website:

http://www.utb.uscourts.gov/

There are links for unrepresented debtors.

A link to "packet for unrepresented debtors"

http://www.utb.uscourts.gov/documents/unrepresented_packet_3_05.pdf

There is a link for a generic motion. You may have to take care of this yourself if your attorney will charge too much.

Forms:

http://www.utd.uscourts.gov/documents/formpage.html

If you do chose to try and take care of this on your own, you need to contact your attorney and ask him to file a motion to withdraw from your case. As long as you are represented by counsel, you can't file motions/pleadings on your own. So, regardless of what you chose to do, you will have to call your attorney, unless you chose to do nothing.

You can also TRY to call the clerks office and ask them what you are supposed to do. They can't give legal advice, but they can tell you what procedures are, like, "what happens if a creditor debits my account after I have already filed a CH13"/, or something like that.

This really sucks. I'm so sorry this is happening to you.

Best of luck

[jeb]

I had a phone conference with an Attorney and the first thing he said after I had gone through my situation was -

"Open another bank account with a different bank and close the one with BorA. They have taken money out of peoples accounts who have filed for bankruptcy."

And I have been with BA for many, many years - open a new account with Suntrust yesterday. - jb