Violation of Stay-- Need help of a pro se guru here

[deejayakoni]

I think the best bet is to explain the entire situation:

About two years ago, I sold a laptop computer to a woman on ebay. She mailed me a check, I cashed it, waited two weeks to be sure it cleared, and sent the computer UPS. Here is where it gets sticky-- the computer never made it to her doorstep. She, of course, blamed me, called me a thief and everything else in the book (heck, I would of too in the same situation) I told her the lost mail was her own problem.

I went upon the tedious task of filing an insurance claim since it had to be the sender who initiated the claim. Went through the "trace" procedure and UPS had confirmed that the package was "lost." This confirmation happened almost a month after she had paid me, so she continued to call me a liar and thief. I then told her if she did not treat me with some level of respect I would not file the insurance claim for her (which was only 1/2 the price of the computer by the way, because she cheaped out on the full deal insurance). She did not heed my warning so I cut off communication with her. After that date, I didn't hear anything from her.

Then, almost 2 years later, I get served with a notice of a small claims suit--the cost of the computer + fees. I was given 14 days to respond (along with a check for $244 to request a hearing that I could not afford). I ignored the notice and filed my bankruptcy paperwork that I had already been working on for the last month prior-- and also added her as a creditor. The date of the BK filing was July 7th-- about a week after the 14 days I had to respond to the suit.

As I patiently waited for my 341 meeting, I received notice on July 30th that a general (default) judgement for the suit had been entered in her favor. I contacted the court, who stated they received a BK notice but since the notice didn't have the suit's case number on it, the court did not link the notice to the suit (since when did a 341 notice list any particulars). They also told me that the woman suing me had requested the default judgement on July 28th, and that the court does not automatically do so.

Several days later, when I had my 341 meeting, the woman came to the meeting and pretty much told the trustee that she should not be listed as a creditor because she didn't extend credit towards me. The trustee told her if she claims I owe her money, shes a creditor. Period. And she needed to contact an attorney.

My questions are this:

1. All of this happened two years ago, and I no longer have any documentation from UPS or even of the transaction.. I don't even have the same bank account that her check was deposited in-- she could say anything and I wouldn't have a defense other then my own testimony and a witness who saw me hand the package off to UPS. Do I have a leg to stand on if she objects to a discharge?

2. Did she violate the automatic stay by requesting the default judgement long after she received notice of the BK case and 341 hearing? Would the fact that she attended the meeting days after requesting for the default judgement serve as proof that she received such notice?

3. If she did violate the automatic stay, would it be wise to hold that in my "back pocket" as a bargaining chip if she does object to the dischargability to the debt-- or should I file for an adversary proceeding now?

4. How would I go about filling for an adversary proceeding in Oregon. I am doing this all pro se and do not have the money for an attorney. The Oregon Bankruptcy Court website is pretty vague when it comes to procedures (and it is geared towards creditors). The legal aid office here in Portland wont touch it because they didn't prepare the forms or assist me in filing.

Thanks for your help!!

[keepmine]

It'll cost here $350 to file an adverserial proceeding. She's all bluff. The trustee put her in her place.
She did violate the automatic stay and so did the court. Were I you, I'd consult an attorney about the approiate course of action to take. For sure, you need to get that judgment vacated. Your reponsibilty for the debt is gone but, the judgment will appear in the public records section of your credit report.

[thaynes]

Question. Did UPS pay your claim for the lost laptop?

[FreshLikeADaisy]

Deejayakoni, I don't know a thing about how to file an adversarial procedure in Oregon, so I can't help you there, but I believe Keepmine is right: she's all bluff. It takes a LOT more than, "Deejay owes me money and didn't pay!" to win an adversarial action in bk court.

In regard to your other questions, I wouldn't worry about #1 just yet. Wait to see if she files an adversarial action -- and on what valid legal basis she does so -- before you sweat this. See, in average adversarial action in bk court, the fact that the debtor may owe the creditor money is not in doubt: the debtor included that creditor in his schedules and matrix, right? So the existence of a debt itself is not usually in question (though it can be). The question of an adversarial action is whether you should be denied a discharge of that particular debt (whether you owe it or not) based on bk law. To me -- and I'm not an atty -- it sounds like she doesn't have a leg to stand on. So wait until she starts the music of her choice before you start dancing.

Here's some even better news: if she doesn't file her proposed adversarial action within 60 days of your 341, or if she does and loses (which seems likely), she can't touch you again: a Ch7 bk includes pre-existing claims. In addition, she confirmed her receipt of your notification by showing up at your 341. She cannot now ever say she wasn't duly notified and did not have the same opportunity as any other creditor to object to the discharge of your debt.

2. I believe you're right, that she did violate the automatic stay. And yes, I'd use that in any way I could if/when she files an AP.

Please note that even if you have already filed pro se, you may still be able to find an atty to advise you at an hourly rate. But choose carefully, because not every bk atty is good at handling APs.

And when your bk is discharged and closed, you can do a Motion to Vacate Judgement yourself and get rid of that default judgement she got: whether she got it before or during your bk, the bk itself renders it moot and it's pretty much just a matter of submitting your Motion to Vacate after discharge to get it removed.

I was pro se too, and fortunately I didn't have a problem -- you're doing your research and I think you'll do just fine. Good luck!!!

[deejayakoni]

I plan on filing a motion to vacate judgement on the grounds that her requesting the default judgement was in violation of the automatic stay and she had no authority to do so.

I am looking for a sample motion that I can tailor to my needs-- anyone have any samples?

[deejayakoni]

oh, and in response to thaynes question, the UPS insurance process is two steps. First you have to run a trace on the package-- which takes up to two weeks. That process tells UPS if the package is truly lost or if it got misdirected or misdelievered. After a package trace comes back as "lost" you can file an insurance claim.

I pretty much cut her off after the first step because she was being unruly and uncooperative and told her to deal with it herself-- so no there was no insurance claim filed. Unfortunately, since its been over a year, there is no way to file an insurance claim, nor would I have access to any records since UPS purges them after a year.

[FreshLikeADaisy]

Deejayakoni, you can do that, but the tried and true grounds are that the bk itself renders the judgement moot. I don't know how well it would work if you go the "violation of the stay" route. I'm not saying it *won't* work, mind you, it could work out just fine.

As for a sample, if you can write a motion (iow, you know the proper format) this one is really easy: you are moving to vacate because the bk (district, case #, date filed, date discharged) rendered this judgement moot. Attach your creditor matrix and your discharge order, and I can't think of anything else you might need. There are various sample Motions to Vacate on the net if you google for them; just change the wording to suit your needs. Check out this link: http://forum.freeadvice.com/showthread.php?t=218238

Good luck!!!

[HHM]

Did you list this person as the creditor, or merely the court where the proceeding was pending.

In any event, you will probably lose the automatic stay violation so filing one is a moot point.

Once the BK is discharged, simply file the paperwork to vacate the judgment in the court where the suit was brought.

FYI, you handled the situation very badly in my opinion, I really don't blame the lady for calling you various names.

[JRScott]

There is a place in the petition to list case numbers of pending cases. You need to amend that form and upload the new version. Doing it yourself costs about 29 dollars I think.

1. She has to prove that the debt is owed and that it is not dischargeable, which I don't believe she can do. It's all bluff.
2. No she did not. Since you claim you filed a week after the 14 days you had to answer. The court probably issued the default judgment because you failed to answer which is normal and did so on the first business day. Since you did not list the case # in the petition the court is not at fault.
3. N/A
4. Not Necessary

As HHM says once you get discharged, take your papers to the courthouse and file the necessary paperwork to get the default judgment voided.

[gymbo]

I've done my share of ebay selling and I have found myself in your shoes. I specifically request buyers buy insurance and I always put in the listing - that I am not responsible for anything that gets lost in the mail if they don't. I think this is pretty standard on ebay.

But it has happened a couple of times.

In the case of the "understandable .. please help me track the package that never showed up buyer"... we worked together to find the lost package. I actually got a piece returned to me in the mail from USPS... but the package was lost forever. The buyer was very nice...but very disappointed. And since the item they bought was a suit I never planned to wear anyway - I refunded all of her money and asked her to please consider buying from me again.

In the case of the hostile buyer... who send me 6 emails in 2 hours before complaining to ebay that I did not reply... I wanted to take the same road you did and say - take a hike! But the package eventually showed up - and then they were twice as mean cuz it was damaged! (And this was also my fault although they did not buy insurance!?!) I offered a significant discount... they asked for double... I agreed to double (just to keep the peace) and they ignored my response - and filed a complaint with ebay.
Ebay ruled THEY GET NO REFUND.

My point is (I know I am off on a tangent) ... you catch more flies with honey. Being nasty does not get you what you want.

[deejayakoni]

Just for more info for anyone who is interested, she was listed as a "creditor" at the initial chapter 7 filing, and the suit & case number were listed in the petition in a section that asks about recent lawsuits. Both her and the court received adequate notice of the BK fling.

Additionally, the court where she filed suit told me that they do not enter default judgements automatically when the award is less an amount of money (I think it was 5k)--- the plaintiff in the case must request to do so within 60 days or lose for failing to pursuit. The records department confirmed that she physically went into the courthouse and signed a document requesting that a default judgement be entered in her favor.

As far as eBay goes, I learned my lesson from this case long ago and have been using craigslist ever sense.

[AngelinaCatHub]

Here’s my story: I got a notice before I bked, that a hearing for small claims was subpoenaed. At that same day in the same bunch of mail, was a default Judgment document. This is explainable as lawyers usually as a courtesy to the Judge, make up the paperwork both for and against their case so the Judge does not have to do this. It appeared the Judge signed the subpoena and the blank Judgment paper in error not noticing no hearing was made. So I got a 5k Judgment without my day in Court. I simply wrote the Judge a letter that in case number XXXXX I received a Default Judgment when the hearing is two weeks from now on the same case. As it went, the Judge ‘set aside’ the Judgment, and when I filed the automatic stay was in force so I won the day.

It may work for you if you have the hearing paper with the date on it and your bk statement of “Suggestion of Bankruptcy” and the date is before the hearing date, the Judge ‘MAY’ set aside your Judgment. In any case, if you do nothing about it, you own it. That person can levy on you. ‘Hub

[epiphany]

Deejayakoni, I don't know a thing about how to file an adversarial procedure in Oregon, so I can't help you there, but I believe Keepmine is right: she's all bluff. It takes a LOT more than, "Deejay owes me money and didn't pay!" to win an adversarial action in bk court.

In regard to your other questions, I wouldn't worry about #1 just yet. Wait to see if she files an adversarial action -- and on what valid legal basis she does so -- before you sweat this. See, in average adversarial action in bk court, the fact that the debtor may owe the creditor money is not in doubt: the debtor included that creditor in his schedules and matrix, right? So the existence of a debt itself is not usually in question (though it can be). The question of an adversarial action is whether you should be denied a discharge of that particular debt (whether you owe it or not) based on bk law. To me -- and I'm not an atty -- it sounds like she doesn't have a leg to stand on. So wait until she starts the music of her choice before you start dancing.

Here's some even better news: if she doesn't file her proposed adversarial action within 60 days of your 341, or if she does and loses (which seems likely), she can't touch you again: a Ch7 bk includes pre-existing claims. In addition, she confirmed her receipt of your notification by showing up at your 341. She cannot now ever say she wasn't duly notified and did not have the same opportunity as any other creditor to object to the discharge of your debt.

2. I believe you're right, that she did violate the automatic stay. And yes, I'd use that in any way I could if/when she files an AP.

Please note that even if you have already filed pro se, you may still be able to find an atty to advise you at an hourly rate. But choose carefully, because not every bk atty is good at handling APs.

And when your bk is discharged and closed, you can do a Motion to Vacate Judgement yourself and get rid of that default judgement she got: whether she got it before or during your bk, the bk itself renders it moot and it's pretty much just a matter of submitting your Motion to Vacate after discharge to get it removed.

I was pro se too, and fortunately I didn't have a problem -- you're doing your research and I think you'll do just fine. Good luck!!!

Thanks for that info Daisy...I'm gonna need it after my discharge so I saved it to favorites.

ep

[JRScott]

It generally takes a week for the court to notify someone of bankruptcy, so I'm still not sure that she violated it intentionally. The individual seems to be particular. She most likely walked in on day 15 (or the nearest business day) and signed and requested it. If she signed the order more than a week after you filed then yes she could possibly have violated the stay. I wouldn't worry about it to much but check the dates that your matrix was mailed out to everyone and when the judgment was signed.

I still as before don't believe she could win an AP against you. She basically doesn't have a leg to stand on and really pursuing it this far has probably cost her more than the initial claim.

[HHM]

I agree, I do not see an intentional violation of the Auto-Stay and at this point, it is not worth your effort to pursue. Keep in mind, unless you suffered "actual damages" the penalty for violating the stay is sanctions that are paid to the court, not to you; so you don't get anything out of it anyway.