2 Creditors keep violating stay, what do I do?

[chrisandsarah]

I filed chapter 7 on 05/28/08 and had my 341 meeting on 08/08/08. The status is "awaiting closing" and the clerk at the bk court told me that means basically waiting for discharge. However, approx. 2 weeks ago I have been receiving calls everyday from a collection agency for 1 of my credit cards that is included in the bk, I also received a letter from them. When I answer their calls and tell them that I filed, they have either said that they are seeing the status as dismissed and that I need to make an immediate payment or that they need to contact my lawyer and the trustee. After I told them that I represent myself, they insist that I give them the trustee's name and number, however I didn't yet. And a seperate cc that is also included in the bk, sent my acct to a collection agency and they sent me a letter as well, no calls yet. What do I do?

[soleprop]

i want to be clear - both entities contacting you and attempting to collect debts are included in the bk and on the matrix - meaning they both got notice of your bk?

if so, they already know the trustee's contact info and are violating the automatic stay and you retain all rights to file the violations with the bk court; if the bk court decides with you that these are indeed violations i think the bk court can assess up to $1,000 fee per violation to each creditor. this money as i understand it goes to the trustee for distribution.

edit: take a deep breath here and remember that once you get your notice of discharge you can send these jackholes a copy of that and tell them to kiss off. the collection agencies cannot collect on discharged debts, and i think their may be some recourse for you to take at that point, too - if you continue to be pestered by them.

however if they keep pestering you prior to discharge and resort to phone calls...

because you're pro se, you'll have to handle this yourself. if it were me, at the first phone contact by the creditors i would tell them they are violating the automatic stay by attempting to collect these debts during your bankruptcy; the automatic stay is a protection put in place over you and your estate effective from the date of filing and that you will notify the bk court of these violations and take legal action against the violators according to all applicable laws.

give them the case number and the date you filed, explaining that this is the date after which all creditors, them included, should have ceased collection efforts and if so inclined, disputed the discharge of their debt and filed for an adversary proceeding. that is their only recourse at this time, they cannot continue to try to collect the debts from you, your estate is in the hands of the trustee and the bk court until the case is closed.

creditors who dispute the discharge of your debts to them have the burden of proof - they have to prove malevolent intent or fraud. if they fail, i believe they are on the hook to pay for any legal fees their AP has caused you to incur.

do some reading, good luck, and play hardball.

[chrisandsarah]

Thanks for the reply. Yes both of the original creditors are in the bk and are included on the mailing matrix. However, it seems that the original creditors sold (or whatever they do) my accounts to these new collection agencies who are not on the mailing matrix... So it seems to me that the original creditors did wrong by selling my accts while I'm in bk and also the collections agencies for continuing to call me after I've notified them of the bk... and the one that is calling obviously knew about the bk because they tried to tell me that it was dismissed... So I'm still a bit confused... Who do I file against? The original creditors or the collection agencies?

[soleprop]

well i'd add these two new CAs to your filing - it may cost you $26 to do but it further negates any rights they have to collect

what you do is go to the court clerks and tell them you need to add two CAs to schedule F. they may not charge you (MN didn't want to charge me unless i was adding 10 or more).

then you need to send a copy of the 341 meeting notice to each of the CAs and then file 'notice of service' with the court clerk.

that covers your butt.

[biotechsolution]

easiest thing to do is to contact to the original creditor and inform them that you are receiving calls inviolation of the automatic stay. Let them know if it continues you will file a motion after your discharge to show cause for sanctions for violations of the permanent injunction. Since you are 'pro se' document every contact you have with them. But first send them a letter outlining what you will do certified mail. The OC should get rid of the collection agency.
The $1000 fine won't come from the BK court, that's a FCRA violation and has to be done in circuit court. The only fines the BK court will give is for sanctions and you will have to show how you were damaged.

[soleprop]

ahhh - thank you for posting!!