automatic stay

[supernova]

Hello,

I have been in a 13 for 38 months . The bank that has my morgage has filed a motion to remove stay three different times stating im behind on payments. I have showed there attorney all three times with my bank docs(payment history) that i am current. All three times there attorney has withdrew the motion. There attorney can see that the bank is in error, but the bank refuses to fix the error and wants to file again. I spoke with there attorney and showed them once again that Im still current..How can i get this resolved. they have charged me 1950.00 for the last three dismissed motions. Can they charge me for these filings???? since there attorney dismissed them and there was no order and filed in error??

PLEASE HELP
Thanks in advance

[justbroke]

You should ask your attorney to file an Entry of Order to Show Cause as to why they shouldn't be found in violation of the automatic stay. They continue to employ process when there is nothing there. Your attorney could probably ask for sanctions under Federal Rules of Bankruptcy Procedure Rule 9011.

[supernova]

I did speak with my att. and he said there is nothing he can do, he said let it go to a hearing and it will get corrected. Can they charge me for the these frivious filings.... There attorney advised me today that they are not going to file another motion. Can i file a motion to show cause. I did read the 9011 rule, will this force the bank to show proof of why there not up dating there accounting errors.

[BKParalegal]

Your attorney is spineless and should have had the 2nd MLS go before the judge instead of letting the creditor withdraw it. He/she is milking you for unnecessary post petition fees IMHO.

Good luck

[justbroke]

Actually, constant withdrawals of motions are good evidence, to a judge, that the attorney and creditor are not following the rules and make them subject to FRBP 9011 sanctions. I know that in my District, the judges specifically looks for certain types of papers to be withdrawn, and then issue a sua sponte order to show cause. They find them to be nothing more than frivolous and a waste of the Court's resources.

That the bank has, for a third time, motions for relief from stay in a frivolous manner, compounded with your attorney doing nothing... either means that your attorney doesn't want to do any work, or you didn't pay him to deal with these things. I personally would have pounced.

See In Re Eileen Fagan, 04 B 23460, So. Bankr. NY (2004), with references to other cases. The gist was that the judge had "granted sanctions against secured creditors in three separate cases where the secured creditors moved to vacate the automatic stay on the basis of false certifications of post-petition defaults".

I love how the judge goes on to say that... "[m]ost creditors and counsel are conscientious. But some are callous by design or inadvertence, as exemplified by this motion and two others presented to the Court the same week. The danger here is that a debtor who does not have an attorney or the resources of intellect or spirit to defend against a baseless motion may lose his/her home despite being current on post-petition mortgage and plan payments."

In the end, the judge awarded $10,000 in sanctions! (And that didn't include the attorney fees and costs!) This also was the second time that the creditor tried to get a motion for relief from stay.

Despite these facts, which are indisputable based upon the Secured Creditor’s own records, the Secured Creditor has persisted in this baseless motion through multiple submissions and three Court hearings. Moreover, this is the second motion to vacate the stay against the debtor based on false certifications of default filed by the Secured Creditor. This Court sanctioned the Secured Creditor by order dated May 4, 2006 in the amount of $700 on its first baseless motion.

For the reasons set forth above and in the Gorshstein decision, I shall enter an order for sanctions requiring the Secured Creditor to pay an amount sufficient to recompense the debtor’s attorney in full for his fees and costs in defending the motion and in the further amount of $10,000 payable to the debtor

Again, your attorney is being lazy or is not a litigator. If you read what the judge wrote in the referenced case, Debtors, like yourself, could end up thrown out on bogus motions!

[supernova]

I agree, no help from my att, I need to get this taken care of. is it to late. the last motion that was dissmised in april 2010 and it still isnt fixed. The bank is still saying that im behind and wont correct there error. There attorn. wont do anything ether. i have showed them i am current. They reported to the credit bureau wrong info (november 2010 current, december 3 months behind) wow i got three payments behind in one month.....impossible. what can i do???? please advise me on the steps i should take..at least i have this forum to vent to. Thanks for all the advise.....help ster me in the right direction.

[BKParalegal]

You need to build your case by paper trailing it. Without going into every twist and turn, I would start by sending a certified letter to your lender and start it off by saying "Per RESPA guidelines, I am requesting a payment history of my account beginning with XX date. Technically they have 2 weeks to acknowledge the letter and 30 days to comply.

Good luck

[supernova]

I have a payment history that i recieved from the bank that is to date(up to 1/20/11), It shows all my payments from the date of filling bk(11/07 ). I even verified it with a phone call to them and they verified the dates of the payments. It shows 38 payments in 38 months(post petition 12/07 to 1/11) but they still say im behind and wont correct it. there saying that im past due for jan 2011. now what??? thanks

[BKParalegal]

Depending on local BK rules you can file a Motion to show cause, a motion to verify that you are in compliance etc. But it falls back to your spineless Atty filing it. You can do. Google search for a motion to show cause template and file it yourself. Even if it is filed poorly the judge will set it for hearing.

Good luck

I bet what happened is your mortgage company applied your post petition payments to your pre-petition arrears and it will cure itself as you approach your discharge....maybe

[supernova]

I will look for a template, i will call my so called att. tomorrow and ask him to file for it.... thanks ill post results.

[justbroke]

I bet the payments are probably in suspense. That was exactly the case in the case referenced above. I would pounce on this.

[supernova]

WOW, I love this site...I talked with my spinless attor. today.... He was suprised as to what I told him.. he asked where i learned this new info... (i didnt tell Him). Any way he said that it is possible but he doesnt do litigation. I called two other bk attorneys and they told me that i need to have him handle it. since he is the active attor... I also spoke with the banks attorney....she stated she doesnt know why this hasnt been corrected and why the filing fees have not been taken off. I told her that i was thinking of filing a Order to Show Cause as to why they shouldn't be found in violation of the automatic stay, That They continue to employ process when there is nothing there, pertaining to rule 9011. she told me that she would again contact the bank and advise them to correct this problem. and she would not proceed with any filings that the bank requests. What do you guys think would be the next step.
Also as to my payments they are showing two payments in one month and are trying to say it is one payment. On my statement it shows two single payments.

[justbroke]

The next step is to actually file a motion to show cause.

[supernova]

Well I'll be damn..... I let this ride because there att. told me she would get it straitened out !!!!!! I called bank yesterday to make payment and my loan was in a different dept!!! well now there stating that my bk has been discharged.. and there last motion for relief they filed in march 2010 was granted 5 days ago, between yesterday and today my account was accessed with over 2 thousand in new fees and charges.. I called the bk court and they have no record of this, 13 trusty has no record, mine and the banks attorney has none ether.. the bank says they have documentation of this but they wont send me a copy..

[justbroke]

Your attorney needs to do something now. This is at the point of beyond ridiculous and unnecessary.