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  • To Elliot Frank Or Anyone Violating Auto Stay

    On 17 Jul 2003 05:58:00 -0700, [email protected] (Sharon) elucidated:
    We converted to BK 7 in 1/03and lender #1 asked for and received a relief from stay. So far, OK.When one is abandoning the property, this is to be expected. However,mortgage lender #2 never asked for nor received release from stay, andevery month sent the usual bill, giving the amount needed to "catchup".Now, they send us a summons to begin initiating foreclosure. Mycontention is;1. They have been violating the automatic stay consistently-if theauto stay re: billing doesn't apply during the BK 13 it surely appliedduring the BK 7.2. Since they never received relief from stay and they violated theCourt Order of no billing attempts, their claim for their part in theforeclosure is invalid.In both cases, we are eligible to sue and receive monies for the aboveviolations.
    To repeat: IANAL (get a real one, you're going to need him/her!)

    My answer may ramble a little -- there's several different elements at
    play in your situation.

    The automatic stay applies to ALL creditors. If your lawyer didn't
    clamp down on lender #2 after your petition was accepted, then you
    didn't get what you paid for. Accept that he screwed you, and move
    on.

    Here's where you need a savvy lawyer -- to fight the foreclosure
    you're now talking about Real Estate law. A VERY different specialty
    from bk. Start by fighting the foreclosure -- lender #2 may fold when
    offered an opportunity to appear in front of a judge and explain whey
    they violated a court order.

    A good bk lawyer can take a look at your specific facts and determine
    if the violation of stay can be addressed in Federal Court (after all,
    the original bankruptcy was handled by a Federal court). The good news
    here is that Federal judges don't like *ANYONE* violating their
    orders. The hard part will be proving to a Federal Court that lender
    #2 *DELIBERATELY* and *WILFULLY* violated the automatic stay.

    If lender #2 is state regulated (private lender or state charter),
    then you're in a good situation. Most states have consumer protection
    laws against most egregious violations. If the offending lender has a
    Federal Banking charter then all bets are off -- if Federal Banking
    regulations give the lender an easier ride, their lawyers will claim
    that the matter comes under the Federal rules, and if the Federal
    rules are silent, they they'll claim that (nonextant) Federal rules
    trump state law.

    If you can get a lawyer to take your case, he/she's going to have to
    do a LOT of research -- there isn't a lot of case law in this area.
    Remember that the lender can bring some VERY expensive (and usually
    knowledgeable) lawyers to bear on the matter. The good news on cases
    like this, is that the internal procedures and practices of most
    bureaucratic organizations (i.e., banks and lending institutions) work
    against them -- there's a paper trail a mile long hidden in their
    files (and they don't go shredding a la Enron). If there are enough
    facts (documents they sent you, county records regarding the property,
    files from the bk) to support the case (so it doesn't get dismissed
    the first time it comes before a judge) then a well crafted discovery
    order may produce enough evidence to get them to settle.

    You've got a *WHOLE* lot of work ahead of you if you want to pursue
    this matter.
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