BOA debits checking post-confirmation

[gregorino]

I'm in a Chapter 13 pro se and had an unsecured line of credit with BOA which was included in the repayment plan with a balance @480.00. BOA filed no objection, and presumably, has been receiving payment from the Trustee all along. Thursday they took $620 out of my account and claim they have a right to offset. How can that be? They're being repaid according to federal bankruptcy law, so how can they just grab a bunch of cash as well? I've made it this far without an attorney, and don't plan on getting one now. Maybe I can file a motion with the court of some sort. Any thoughts on that would be appreciated.

[lrprn]

Have you checked your trustee's site on 13Network or 13DataCenter to see if your trustee has indeed been disbursing to BOA? Unsecured creditors are the last to be paid in a Ch 13 plan.

BOA has violated your automatic stay to take payment after you filed - a big no-no (and I'd be willing to bet that they most likely did it because you filed Ch 13 pro se and they thought they had a good chance of getting away with it).

Since 99.9% of us filed our Ch 13s with lawyers, we haven't had to deal with this ourselves. Hopefully HHM, JustBroke, or MSBKlwyr will come along to share how to respond regarding this stay violation in your local bk court.

[gregorino]

Thanks Irpn.
Appreciate your assist.
After scrutinizing the CH13 website, it does appear that no disbursements are going to this line of credit account with BOA. It was listed on my Schedule F, and they would have been notified when we filed, so perhaps they did not file a proof of claim. But i would think they are still bound by the automatic stay and their so called "right to offset" can't trump the stay.

[justbroke]

While banks claim a "right of offset", they have to still file a Motion for Relief from the Automatic Stay to exercise that right!

Bank of America is in clear Violation of the Automatic Stay. I would immediately file a motion to compel turnover of the property of the estate (the money seized). I would also file a Motion for Entry of Order to Show Cause and a Motion for Sanctions.

Enough of these games. They will keep doing this to us until someone fights back and they lose lots of money.

I would start preparing the 3 motions I mentioned. I would make the first one (Motion to Compel) an Emergency Motion and file the other two at the same time (non-emergency). I would ask for sanctions and if any check bounced, or it put you in jeopardy on anything, ask for (actual) damages. I would also be inclined to ask for punitive damages because Bank of American (and use these words) is a sophisticated creditor, had notice of the Bankruptcy, and still chose to take property of the Estate in violation of the Automatic Stay imposed by 11 USC 362. I might be inclined to ask for $2,500 as punitive damages. I woudl also include your actual damages ($620) and any other out of pocket costs including, but not limited to postage, loss of income to attend a hearing (even if you take the day off as a vacation day), parking fees at courthouse, etc, etc.

Don't delay, don't sit here wondering what to do. You inaction is what gives them their audacity to do such a thing.

Sorry, but this is one of my pet peeves.

[gregorino]

Gratzi JB.
I finally got hold of someone in the appropriate department at BOA last night, and at first they tried to tell me they were not informed of the Chapter 13, but a minute later said that they did see all of the info; case #, etc.
So, someone there dropped the ball and didnt file the claim. They have promised to return the funds in 24-48 hours, so we'll see how that goes.

[StartingOver08]

I agree with JustBroke. Seems like the creditors like BOA that use this 'offset' provision after filing want to see if you have the gall to call them on it. Most debtors don't follow through and BOA and other creditors take advantage.

File your motions as JB suggests. Do you think they will perform (give the $$ back) over this holiday weekend? I don't. It is probably SOP for BOA to claim they did not have your info at first and then to claim it 'slipped thru the cracks'. They will not stop until they have to pay big money for their error. Otherwise it pays for them to slip through the cracks on a regular basis.

[kornellred]

This should serve as warning to those anticipating filing for Chapter 13 - do not have funds in an account where a creditor can confiscate said funds without your permission, legally or not. This does not mean taking money out of the account and burying it beneath the oak tree in your yard; just that a little bit of planning and worst-case scenario anticipation is appropriate.

[justbroke]

Gratzi JB.
I finally got hold of someone in the appropriate department at BOA last night, and at first they tried to tell me they were not informed of the Chapter 13, but a minute later said that they did see all of the info; case #, etc.
So, someone there dropped the ball and didnt file the claim. They have promised to return the funds in 24-48 hours, so we'll see how that goes.

I would still file the emergency motion to Compel TODAY! I would also prepare the other two motions just in case. If that money isn't in your account on Tuesday, then file the other two motions.