buy out, refinance

[supernova]

does anyone have a current case law example of where the debtor prevailed.

[justbroke]

supernova, prevailed in what? Filing a motion to show cause and winning? Happens every single day. Just read any opinion on stay violations! The court is purposefully not shy about enforcing this provision as if it meant EVERYTHING to the core of Bankruptcy; because it does. They seldom let any violator go with just a warning. While they don't always impose "punitive" damages, your case appears to be textbook for warranting punitive damages!

[LadyInTheRed]

does anyone have a current case law example of where the debtor prevailed.

You only need case law if your case presents a question of interpretation of the law. If the meaning of the law is clear, you don't need case law. All you need here is the actual law and the facts.

Bankruptcy Code Section 362(a) prohibits:

(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the estate;
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;

Issuing a notice of default clearly violates those provisions and the creditor delivered the evidence to your mailbox. Seems like a slam dunk. The guy telling you that they will get your property is also a collection effort in violation of the stay.

It sounds like you are trying to collect authority to provide to your attorney. He doesn't need it. He knows what a violation of the automatic stay is. If he doesn't go after the creditor, it will be because he doesn't want to, not because he doesn't know he can. If he doesn't want to go after the creditor, look for an attorney who does.

[supernova]

thanks, Im trying to get info for my own knowledge, and to be aware of what can be done. Its nice to hear that someone is on my side.(relieving) I have been so stressed. When u say "punitive" damages, is there a calculation for that.

[justbroke]

Punitive damages are generally 2X (two times) the "actual" damages. Actual damages include, but not limited to, statutory damages, attorney fees, pain and suffering (medical bills, costs), intangible damages. The punitive damages are usually 2X that. This is because the Bankruptcy court, while issuing punitive damages often, doesn't want to be ridiculous although they can go to 8X or higher if the case is especially egregious and the court is trying to stop a particular practice.

[supernova]

supernova, prevailed in what? Filing a motion to show cause and winning? Happens every single day. Just read any opinion on stay violations! The court is purposefully not shy about enforcing this provision as if it meant EVERYTHING to the core of Bankruptcy; because it does. They seldom let any violator go with just a warning. While they don't always impose "punitive" damages, your case appears to be textbook for warranting punitive damages!

what would be punitive damages in my case

[justbroke]

what would be punitive damages in my case

As I posted directly above your post, it's usually 2X the actual damages.

[supernova]

I still have not been in to see atty, but we have been communicating by e-mail. He is having me go through certain steps with the banks atty and the bank. i have sent out letters, and e-mails. Im assuming he's having me build a paper trail??? My big problem is i received a call from my refinance bank today approving my loan to pay everything off(bk and current mortgage). Their asking for a payoff amount for my current mortgage. This payoff wont be correct because of all the fees and charges they applied. I told there atty my situation and requested a payoff quote asap and requested that all the fees and charges be taken off. There atty told me that there was a computer fault and that's why i received a notice. my atty said if they don't remove the charges we will file in court. I'm worried that they wont remove the fees and this is going to get drug out in court and i will loose my current ability to refinance and have to start the process over. They told me funds will be available in ten days.(oh, there atty has agreed that they are in the wrong, in writing)

Any advice????

[justbroke]

I have nothing for you. Your attorney is either lazy, doesn't like litigation, and/or your fee agreement doesn't have anything in it related to these types of issues.

[supernova]

well, received a payoff today from banks attorney, final and up to date(they say) still not corrected.. my atty is having me meet with a cpa tomorrow to get a accounting of all fees and trans actions, then he is finally going to pounce. He told me that he wanted to give them a chance to make it right, by doing this they got themselves in deeper, he feels we now have more than enough documentation to pursue. thanks for all the help and the great info. from this site..

[supernova]

UPDATE: received the refinance, paid off my 13 and paid off this horrible bank..bk was paid off at the base amount, trusty filed his completion doc, atty filed motion for discharge, now just waiting for the court to discharge. yea. now as far as the bank goes, the bank agreed to reimburse me the motion for relief fees.
That i paid as part of my payoff. Im still waiting for the CPA's report, he said that he found several mistakes in the banks accounting over the period i was in bk.
being that the bank went good for the fees can they still be sued for the wrong that they did?