***This is long but wanted to let everyone know what happens ***
Well... had our hearing on a creditor's BK stay violations and may I just say - it was a cross between wanting to put toothpicks into my eyelids to stay awake and mildly entertaining other times when the attorney’s would banter back and forth as to why they should be granted what they were requesting vs. the other. What wasnt told to us was that your case, along with every other case being heard by the judge (AP, conversion, dismissal, relief of stay, etc) in BK court is all lumped together. Didn’t matter if CH. 13, 7, or 11 – everything was heard. So while you may have a hearing time of 9:30 a.m., it doesnt mean your case will be heard at that time. Be prepared for an extremely long day ahead of you and bring a book as absolutely no electronics of any kind are allowed in the courthouse. Leave your cell phone in your car BEFORE you go into the courthouse or you'll be walking back 6 blocks to do so (ask me how I know...
). Would've been nice if our attorney had mentioned that prior of course...
Breakdown:
Room was approximately 16X20 - and looked like a miniature courtroom ( 12 seats where Jury would sit, 2 benches in back for clients / other attorneys, then a podium where attorney's pleading their cases stand.) There were approx. 40 attorney's in the room with various others (aids / paralegals) assisting them - some were there to rep. the debtor while others were there from banks, the trustee was there, the court clerk, stenographer, Deputy, and whatever clients had cases required to show up; this day there were 4 clients, myself included - out of everyone in the room. Cases were to start at 9:30 (ours was sched. an hour later) however the Judge was almost 2 hrs late in starting, so all of the lawyers just stood around talking "shop" - which was rather interesting to listen to as there were so many different things going on - from dismissals, to conversions, modifications of plans, and finally AP's. If you ever wanted to be a “fly on the wall” – this was the time to be one.
Cases got started and the judge was pretty straightforward, telling every attorney to essentially "make it quick and get to the point", most did however there were some that droned on and on (toothpicks at the ready
), citing case law after case law in some instances. Judge didnt look too pleased at that and rushed them along with "get to the point Mr. XXX as there are many cases to be heard today." Most of the time the attorney for the debtor's got their request vs. the actual creditor seeking relief of stay; Judge seemed genuine when he voiced concern over some Ch. 13 cases that people had fallen behind on or were seeking modification of and 99% of the time granted what was being asked for by debtor's attorney's. Trustee was also very genuine and tended to side towards the debtor in most cases of people falling behind in payments and/or requesting conversion. Most of the cases were relief of stay, dismissal, conversion or modification to plan – ours was the only one for BK stay violations, and again, there were only 4 debtors present (myself included).
Cases:
There were 2 couples that were called up before my case; in one the Trustee was seeking to dismiss for non-payment (6+ months), conversion, creditor seeking $ due to credit card usage, and the other was for a modification to a Ch. 13 plan (lower payment / amend if house couldnt be kept).
Case 1:
Debtor was called up by his attorney (wife stayed in her seat), sworn in, and asked what has occurred to make them fall behind, could they make any payments at all, and if so, what amount was possible vs what was being requested currently. Debtor stated they needed to modify their plan to give up their house as they couldnt afford the mortgage and the Trustee payment. Attorney asked them if they wanted to give up their home (reply was no obviously), had they sought a loan modification, had they tried to get part time jobs, or sell allowed items with Trustee approval to try to make the plan payments before falling behind. Debtor answered they both had 2nd jobs but still could not afford the plan as currently written. They were trying as best as they could and did not want to be homeless but they also wanted to try to repay as much as they could to their creditors since they borrowed the money - but needed a little help from the court to do so.
Then the judge asked them some questions - nothing too in-depth, just generally repeating questions attorney asked or wanting to know if job was secure to continue to make payments if he modified the plan, etc, however he did tell their attorney he "recommended they apply for a loan mod on their mortgage" before he'd consider it based on what was stated. He also asked for bank statements and paystubs to be updated and submitted so he could review.
Case 2: Dismissal / Non-payment of CH. 13 due to job loss, clients seeking to convert to Ch. 7. There was one creditor there seeking relief of stay if they converted because somehow they managed to get a credit card and run up charges on it for necessary living expenses due to job loss. The Judge did not ask any questions of the debtor(s) present, however bantered back and forth between attorney, Trustee and creditor; asked the debtors' attorney a few questions (plan submitted, total amount of debt, % payback, why credit card was used) and then ask the Trustee if there were any objections to the request before him. He did tell the debtor's attorney to remind his clients that credit card usage was frowned upon, to ensure they budgeted accordingly for the necessary's and depending on what the charges were for (he requested statments), that that would be the deciding factor of his decision towards the creditor.
Trustee:
In both cases, the Trustee stated he had no objections to converting the one case to Ch. 7 and modifying the other, however for case #1 he would like to be provided a copy of the request for modification on mortgage to see what the payment would be if modded, and stated if that were done, he would consider taking the unsecureds down to 1% vs. what they had been as he wanted them to succeed in their Ch. 13 plan. For Case #2: he stated no real objections other than the credit card usage but would defer back to the court to determine on that. So it looks like those 2 debtors will be granted what was being asked for.
Only once did I see the Trustee actually get granted a dismissal on the spot and that was for a case where the debtors had the money to pay however due to wanting to keep alot of assets outside the plan, paid those over the trustee plan payment. Trustee told the judge debtors could "comfortably" make their Ch. 13 plan payments but they did not want to give up some of the items they exempted or were required to pay back in plan (CH. 7 liq. Test I assume). He stated he felt bad for the debtors and didn’t want them to lose their home, however he had been trying to work with them and their attorney for the past 4 months to no avail and unless they chose to give up XXX, there was no way around it and creditors should be granted relief of stay to foreclose. He was granted the dismissal and motion was entered that the bank could proceed with foreclosure. From what I gathered, the debtors in this case did not want to give up "toys", but were pleading because they didnt want to lose their house either. Judge was none too sympathetic towards them since they could make the Ch 13 payments but chose not to.
My Turn:
Finally – almost 4 hours later (and second to last case of the day) we were called up for our AP on BK stay violations. Was pretty much straight forward, facts were presented and at first not disputed by the creditor (yeah key words there…) then he changed as things went on. I was called up to the stand, sworn in and given copies of all exhibits previously submitted, asked my name, do I live in XXXX, did I file BK Ch. 13 case number XXXX, and then directed towards the letters given to me - what this/that was, could I read the dates off, whom from, did I make any calls to collection agency providing BK info, etc – trying to resolve this matter.
When our attorney was done, the attorney for the collection agency (who was also THE agency… so not only was he rep’ing the company, he was the defendant as well since he owned it and was an attorney). He was arrogant almost to the point of rude when he asked his questions to me (I so wanted to say “am I on trial for murder here or…??? LOL - he was that intense - but figured my humor would end up getting me in handcuffs
- ), trying to spin it that he/his company was “innocent in sending the dunning letter – it was the computers fault / org. creditors fault for not notifying them prior to we had filed BK. We were wasting the courts time, should be ashamed, etc etc etc”. Our attorney jumped on that quickly and stated to the Judge that while Mr. XXX might believe its a waste of "his" time, clearly BK law states otherwise else it wouldn't be in there and that if allowed to go "unpunished" that the laws were for nothing, allowing creditors to violate the stay at will w/no reprecussion. He then stated that he “would buy Mr. XXX's story if the org. creditor had filed the Proof of Claim, however it was Mr. XXX himself who filed Proof of Claim 4 months after our Ch. 13 was filed, and then sent dunning letters out 2 months after their proof of claim was allowed. In addition, that Mr. XX and his business of Collect your Debt continued to bill adding interest and penalties a full 3 months after they’d received payment in full from Trustee for their claim in our CH. 13 plan.”
Judge asked for closing statements (or something like that...not sure the word he used, he was hard to hear)
Mr. XX came back up, was none too happy - and again tried to spin it that it wasn’t his/company’s fault, that they’ve never had anything happen like this before and that for some reason, ours was the only file his company had ever received that ever got a dunning letter after the fact (yeah righhhtt was my thought - you mean the only "file" that chose to pursue you for it...) and that we had no actual damage or injury due to it. He asked the judge to dismiss our case, citing it was computer error and "nothing personal".
Our attorney came back up and defended his position, cited BK law re: stay violations and what / what does not define “injury” when it comes down to it, and then the judge said he’d like to ask me a few questions.
Judge: Judge asked me what did I do for a living, then asked if I had any children, what affect this had on me/family personally, what had I done to try to resolve this issue/how much time spent, etc. I answered all questions and basically told him that it was much unneeded extra stress added to an already stressful situation, countless phone calls to our Treasurer’s Office, DMV, and our attorney’s office for months to try to get Mr. XX to record the account properly. We had thought it was all taken care of 8 months ago when Mr. XXX Collection Agency had received payment 100% via our plan and acknowledged that fact but chose to continue to add penalties/interest to our account. This in turn made everything even more stressful because we were told by the County that they could place a lien for unpaid pers. Property taxes due to the “official” record of Mr. XXX’s Collection Agency still showing a balance due (Mr. XX is hired by county to collect on delinquent prop. taxes and wont wipe the books even if paid), even though there wasn’t any. I also told him that its taken us an additional 3 months (Dec-Feb 2011) to try to resolve, to no avail – which is why we are here now. Judge thanked me and told me I may step down – told our attorney that he would have his written decision/judgement within a week – and thanked everyone.
So – now we wait. Attorney is seeking only $1K for violation per code as well as his attorney fee’s, even though there are clearly 4 violations. I’ll keep you all posted on what transpires, if anything. I do believe however that it will be harder and harder to get awarded damages for stay violations as time goes on and so many people are filing BK. Word of wisdom for those that may face this situation – keep EVERYTHING no matter how small/irrelevant you think it is, keep it. If a voice msg is left, record it and keep it – if your caller ID is showing a creditor clearly called you but no msg was left… take a picture of it and save it.
Sorry its long but since I didnt know that every case was lumped together and thought I'd share for those that may have to go through any of the above. For those seeking modification and/or dismissal - I would recommend you go to the hearing so that you can be heard by the judge in your own words vs. your attorney's.
Well... had our hearing on a creditor's BK stay violations and may I just say - it was a cross between wanting to put toothpicks into my eyelids to stay awake and mildly entertaining other times when the attorney’s would banter back and forth as to why they should be granted what they were requesting vs. the other. What wasnt told to us was that your case, along with every other case being heard by the judge (AP, conversion, dismissal, relief of stay, etc) in BK court is all lumped together. Didn’t matter if CH. 13, 7, or 11 – everything was heard. So while you may have a hearing time of 9:30 a.m., it doesnt mean your case will be heard at that time. Be prepared for an extremely long day ahead of you and bring a book as absolutely no electronics of any kind are allowed in the courthouse. Leave your cell phone in your car BEFORE you go into the courthouse or you'll be walking back 6 blocks to do so (ask me how I know...
). Would've been nice if our attorney had mentioned that prior of course...Breakdown:
Room was approximately 16X20 - and looked like a miniature courtroom ( 12 seats where Jury would sit, 2 benches in back for clients / other attorneys, then a podium where attorney's pleading their cases stand.) There were approx. 40 attorney's in the room with various others (aids / paralegals) assisting them - some were there to rep. the debtor while others were there from banks, the trustee was there, the court clerk, stenographer, Deputy, and whatever clients had cases required to show up; this day there were 4 clients, myself included - out of everyone in the room. Cases were to start at 9:30 (ours was sched. an hour later) however the Judge was almost 2 hrs late in starting, so all of the lawyers just stood around talking "shop" - which was rather interesting to listen to as there were so many different things going on - from dismissals, to conversions, modifications of plans, and finally AP's. If you ever wanted to be a “fly on the wall” – this was the time to be one.
Cases got started and the judge was pretty straightforward, telling every attorney to essentially "make it quick and get to the point", most did however there were some that droned on and on (toothpicks at the ready
), citing case law after case law in some instances. Judge didnt look too pleased at that and rushed them along with "get to the point Mr. XXX as there are many cases to be heard today." Most of the time the attorney for the debtor's got their request vs. the actual creditor seeking relief of stay; Judge seemed genuine when he voiced concern over some Ch. 13 cases that people had fallen behind on or were seeking modification of and 99% of the time granted what was being asked for by debtor's attorney's. Trustee was also very genuine and tended to side towards the debtor in most cases of people falling behind in payments and/or requesting conversion. Most of the cases were relief of stay, dismissal, conversion or modification to plan – ours was the only one for BK stay violations, and again, there were only 4 debtors present (myself included). Cases:
There were 2 couples that were called up before my case; in one the Trustee was seeking to dismiss for non-payment (6+ months), conversion, creditor seeking $ due to credit card usage, and the other was for a modification to a Ch. 13 plan (lower payment / amend if house couldnt be kept).
Case 1:
Debtor was called up by his attorney (wife stayed in her seat), sworn in, and asked what has occurred to make them fall behind, could they make any payments at all, and if so, what amount was possible vs what was being requested currently. Debtor stated they needed to modify their plan to give up their house as they couldnt afford the mortgage and the Trustee payment. Attorney asked them if they wanted to give up their home (reply was no obviously), had they sought a loan modification, had they tried to get part time jobs, or sell allowed items with Trustee approval to try to make the plan payments before falling behind. Debtor answered they both had 2nd jobs but still could not afford the plan as currently written. They were trying as best as they could and did not want to be homeless but they also wanted to try to repay as much as they could to their creditors since they borrowed the money - but needed a little help from the court to do so.
Then the judge asked them some questions - nothing too in-depth, just generally repeating questions attorney asked or wanting to know if job was secure to continue to make payments if he modified the plan, etc, however he did tell their attorney he "recommended they apply for a loan mod on their mortgage" before he'd consider it based on what was stated. He also asked for bank statements and paystubs to be updated and submitted so he could review.
Case 2: Dismissal / Non-payment of CH. 13 due to job loss, clients seeking to convert to Ch. 7. There was one creditor there seeking relief of stay if they converted because somehow they managed to get a credit card and run up charges on it for necessary living expenses due to job loss. The Judge did not ask any questions of the debtor(s) present, however bantered back and forth between attorney, Trustee and creditor; asked the debtors' attorney a few questions (plan submitted, total amount of debt, % payback, why credit card was used) and then ask the Trustee if there were any objections to the request before him. He did tell the debtor's attorney to remind his clients that credit card usage was frowned upon, to ensure they budgeted accordingly for the necessary's and depending on what the charges were for (he requested statments), that that would be the deciding factor of his decision towards the creditor.
Trustee:
In both cases, the Trustee stated he had no objections to converting the one case to Ch. 7 and modifying the other, however for case #1 he would like to be provided a copy of the request for modification on mortgage to see what the payment would be if modded, and stated if that were done, he would consider taking the unsecureds down to 1% vs. what they had been as he wanted them to succeed in their Ch. 13 plan. For Case #2: he stated no real objections other than the credit card usage but would defer back to the court to determine on that. So it looks like those 2 debtors will be granted what was being asked for.
Only once did I see the Trustee actually get granted a dismissal on the spot and that was for a case where the debtors had the money to pay however due to wanting to keep alot of assets outside the plan, paid those over the trustee plan payment. Trustee told the judge debtors could "comfortably" make their Ch. 13 plan payments but they did not want to give up some of the items they exempted or were required to pay back in plan (CH. 7 liq. Test I assume). He stated he felt bad for the debtors and didn’t want them to lose their home, however he had been trying to work with them and their attorney for the past 4 months to no avail and unless they chose to give up XXX, there was no way around it and creditors should be granted relief of stay to foreclose. He was granted the dismissal and motion was entered that the bank could proceed with foreclosure. From what I gathered, the debtors in this case did not want to give up "toys", but were pleading because they didnt want to lose their house either. Judge was none too sympathetic towards them since they could make the Ch 13 payments but chose not to.
My Turn:
Finally – almost 4 hours later (and second to last case of the day) we were called up for our AP on BK stay violations. Was pretty much straight forward, facts were presented and at first not disputed by the creditor (yeah key words there…) then he changed as things went on. I was called up to the stand, sworn in and given copies of all exhibits previously submitted, asked my name, do I live in XXXX, did I file BK Ch. 13 case number XXXX, and then directed towards the letters given to me - what this/that was, could I read the dates off, whom from, did I make any calls to collection agency providing BK info, etc – trying to resolve this matter.
When our attorney was done, the attorney for the collection agency (who was also THE agency… so not only was he rep’ing the company, he was the defendant as well since he owned it and was an attorney). He was arrogant almost to the point of rude when he asked his questions to me (I so wanted to say “am I on trial for murder here or…??? LOL - he was that intense - but figured my humor would end up getting me in handcuffs
- ), trying to spin it that he/his company was “innocent in sending the dunning letter – it was the computers fault / org. creditors fault for not notifying them prior to we had filed BK. We were wasting the courts time, should be ashamed, etc etc etc”. Our attorney jumped on that quickly and stated to the Judge that while Mr. XXX might believe its a waste of "his" time, clearly BK law states otherwise else it wouldn't be in there and that if allowed to go "unpunished" that the laws were for nothing, allowing creditors to violate the stay at will w/no reprecussion. He then stated that he “would buy Mr. XXX's story if the org. creditor had filed the Proof of Claim, however it was Mr. XXX himself who filed Proof of Claim 4 months after our Ch. 13 was filed, and then sent dunning letters out 2 months after their proof of claim was allowed. In addition, that Mr. XX and his business of Collect your Debt continued to bill adding interest and penalties a full 3 months after they’d received payment in full from Trustee for their claim in our CH. 13 plan.” Judge asked for closing statements (or something like that...not sure the word he used, he was hard to hear)
Mr. XX came back up, was none too happy - and again tried to spin it that it wasn’t his/company’s fault, that they’ve never had anything happen like this before and that for some reason, ours was the only file his company had ever received that ever got a dunning letter after the fact (yeah righhhtt was my thought - you mean the only "file" that chose to pursue you for it...) and that we had no actual damage or injury due to it. He asked the judge to dismiss our case, citing it was computer error and "nothing personal".
Our attorney came back up and defended his position, cited BK law re: stay violations and what / what does not define “injury” when it comes down to it, and then the judge said he’d like to ask me a few questions.
Judge: Judge asked me what did I do for a living, then asked if I had any children, what affect this had on me/family personally, what had I done to try to resolve this issue/how much time spent, etc. I answered all questions and basically told him that it was much unneeded extra stress added to an already stressful situation, countless phone calls to our Treasurer’s Office, DMV, and our attorney’s office for months to try to get Mr. XX to record the account properly. We had thought it was all taken care of 8 months ago when Mr. XXX Collection Agency had received payment 100% via our plan and acknowledged that fact but chose to continue to add penalties/interest to our account. This in turn made everything even more stressful because we were told by the County that they could place a lien for unpaid pers. Property taxes due to the “official” record of Mr. XXX’s Collection Agency still showing a balance due (Mr. XX is hired by county to collect on delinquent prop. taxes and wont wipe the books even if paid), even though there wasn’t any. I also told him that its taken us an additional 3 months (Dec-Feb 2011) to try to resolve, to no avail – which is why we are here now. Judge thanked me and told me I may step down – told our attorney that he would have his written decision/judgement within a week – and thanked everyone.
So – now we wait. Attorney is seeking only $1K for violation per code as well as his attorney fee’s, even though there are clearly 4 violations. I’ll keep you all posted on what transpires, if anything. I do believe however that it will be harder and harder to get awarded damages for stay violations as time goes on and so many people are filing BK. Word of wisdom for those that may face this situation – keep EVERYTHING no matter how small/irrelevant you think it is, keep it. If a voice msg is left, record it and keep it – if your caller ID is showing a creditor clearly called you but no msg was left… take a picture of it and save it.
Sorry its long but since I didnt know that every case was lumped together and thought I'd share for those that may have to go through any of the above. For those seeking modification and/or dismissal - I would recommend you go to the hearing so that you can be heard by the judge in your own words vs. your attorney's.
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