Announcement

Collapse
No announcement yet.

To Elliot Frank Or Anyone Violating Auto Stay

Collapse
This topic is closed.
X
X
  • Filter
  • Time
  • Show
Clear All
new posts

  • To Elliot Frank Or Anyone Violating Auto Stay

    Your attorney was correct; you *are* required to list all debts
    in your bankruptcy filings. And reaffirmation requires both
    consent of your attorney and the Court, and a finding that the
    reaffirmation is in *your* best interest (sometimes after a
    hearing).

    As far as the billing issue is concerned, lenders are sort of
    ****ed if they do, ****ed if they don't. The vast majority of my
    clients want bills on secured loans sent to them, and get upset
    when they aren't. Should Lender #2 have stopped after you told it
    that you were surrendering the property? Yes. Is this a case that
    I'd handle on a contingency basis? Probably not. I don't see the
    judge getting horribly exercised over a secured lender sending
    monthly bills.

    (And, FWIW, the statement "This is not a bill" is irrelevant.
    Either it's an attempt to collect a debt or it isn't. They
    shouldn't have included a past due amount on it.)

    --
    Brett

    ************************************************** ***************
    * Personal Injury/Malpractice Bankruptcy *
    * *
    * BRETT WEISS, P.C. *
    * Attorneys at Law *
    * Maryland, D.C. and Federal Bars *
    * [email protected] *
    * http://www.erols.com/lawyer *
    * *
    * Small Business Estates & Estate Planning *
    ************************************************** ***************

    The Small Print: This response is for discussion purposes only.
    It isn't meant to be legal advice and you shouldn't treat it as
    such. If you want legal advice, speak with a local lawyer
    familiar with your state's laws who can review *all* of the facts
    and the law applicable to your situation.
    ************************************************** ***************


    "Sharon" <[email protected]> wrote in message
    news:[email protected] om...
    Your reply as shown below has piqued my interest. We hired one
    of
    those "not so savvy" lawyers. A nice man, too nice, really.
    He got
    us through our BK 13 filing, conversion to BK 7 and discharge
    4/29/03.
    BUT there were things he never, ever told us--such as one can reaffirm a debt (we had two accounts with very small balances)
    but
    gave us the impression we had to list them all. During the BK
    13, one
    lender consistently violated the stay at least 8 times by mail
    and
    phone, yet when he wrote them a letter, he never explained that anything like this was a violation of the stay and to watch out
    for
    any more such actions. Here's where I really need your opinion: We converted to BK 7
    in 1/03
    and 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, and
    every month sent the usual bill, giving the amount needed to
    "catch
    up". They have a disclaimer on the bill "this statement is
    being sent
    as a courtesy to the borrower. It is not intended, nor should
    it be
    construed to be an attempt to violate the automatic stay, nor
    are we
    attempting to seek personal liability against a debtor who has obtained a chapter 7 discharge." Sure looks like a bill to me and is not different from any of
    the
    previous bills they sent all during the BK 13. I don't care
    what they
    say, they didn't get a relief from stay and whatever they put
    on their
    bills is flying in the face of the court. Frustrated, I called
    them
    and they were shocked to find out we had abandoned the
    property. I
    even have the paperwork a/l/a PACER which shows their attorneys
    were
    duly notified. They promised no more bills. Two weeks later,
    another
    bill came. (during the BK 13, I called lender #1 asking would
    they be
    sending any bills. They said no, they were not allowed to do
    so under
    the BK injunction. So much for the bills which are not bills
    sent by
    lender #2). Now, they send us a summons to begin initiating foreclosure.
    My
    contention is; 1. They have been violating the automatic stay consistently-if
    the
    auto stay re: billing doesn't apply during the BK 13 it surely
    applied
    during the BK 7. 2. Since they never received relief from stay and they
    violated the
    Court Order of no billing attempts, their claim for their part
    in the
    foreclosure is invalid. In both cases, we are eligible to sue and receive monies for
    the above
    violations. I know you are just giving your opinion, but I was impressed by
    your
    answer to the other poster. Please let me know what you think
    about
    this situation. If we need a lawyer, I can probably go to one provided by Legal Services in our county as I am disabled with
    very
    low income and the total assets we have in the world is less
    then
    $5000 in the bank and 2 cars about ready to die. thanks in advance.
    "TRO" == Temporary Restraining Order. Your creditors are
    (temporarily)
    restrained by the court from doing any collecting while the
    bk is
    being handled by the court. When the bk is discharged, the
    creditors
    named in the bk are PERMANENTLY enjoined from attempting to
    collect
    beyond the amount awarded to them by the court. Attempting to
    collect
    after the bk is final is a violation of the court order ==
    contempt of
    court (if you've got a savvy lawyer and there's enough at
    stake).
    When BofA agreed to the bk, they accepted that all funds due
    to them
    under the mortgage that were not collected prior to the
    petition date
    would be satisfied before discharge -- they agreed that they
    would
    have no claim for pre-petition debts beyond what the court
    awarded
    them. If they wanted something other than what the court
    awarded them
    when your petition was accepted, they needed to ask for their preferred amount AT THAT TIME. If they charged late fees
    during the bk
    because the loan was not current at the time of filing (i.e.,
    they
    considered that you were x months behind for the entire
    duration of
    the bk, because x was the amount that you were behind when
    you filed),
    that is a big no-no. Asking for money after your discharge
    date, where
    the debt was incurred prior to your discharge date is a
    violation of
    the discharge order. Lots of lawyers who do bk are not as savvy as Brett, and
    don't
    understand all of the nuances of bk law, much less the
    intersection of
    bk and Fair Lending Practices and FRB regluations and banking
    "law"
    -- we learned that the hard way. If your lawyer
    can't/won't/prefers
    not to understand the problem, ask for a referral to someone
    who does.
    And be prepared to pay for a few $$hours of their time so
    they can
    review the facts and determine if you've got a case.

Working...
X