Adversary Proceeding, need help ASAP.

[chrisandsarah]

I filed bankruptcy pro se and am now filing an adversary proceeding against my car finance company for 2 reasons. They first of all contacted me by email demanding that I send them copies of schedules that were not even due to the bankruptcy court yet and 2nd because they repoed my car before discharge, both of these I'm sure are violations of the automatic stay.

Under the "Nature of Suit" I'm sure that I will need to check off the Recovery of money/property columns, but which one? And I can demand $2,000 for both violations right? Thanks.

[AngelinaCat]

I filed bankruptcy pro se and am now filing an adversary proceeding against my car finance company for 2 reasons. They first of all contacted me by email demanding that I send them copies of schedules that were not even due to the bankruptcy court yet and 2nd because they repoed my car before discharge, both of these I'm sure are violations of the automatic stay.

Under the "Nature of Suit" I'm sure that I will need to check off the Recovery of money/property columns, but which one? And I can demand $2,000 for both violations right? Thanks.

[justbroke]

Ummm... this is where we pro se filers get in trouble. You need to call the Clerk of the Court tomorrow (your Case Manager) and ask if a Motion for Order to Show Cause and Motion for Sanctions is by motion or by Adversary Proceeding. My basic guess is that this is by motion and not by complaint (AP).

The thing you file is, first, a Motion for Order to Show Cause (or Application for Order to Show Cause) asking the Court to demand the creditor appear in Court to answer why they did something in violation of the Automatic Stay. As part of the Motion you'll also ask for the Automatic Stay to continue as to the particular collateral (to keep them from selling it or otherwise disposing of it). Then, as part of that Motion, you can also ask for Sanctions or make a separate Motion for Sanctions.

You can't just arbitrarily ask for some amount of money in a Sanctions request. It must be actual damages (cost to you). You can sometimes get punitive damages where warranted.

Good luck.

[chrisandsarah]

Yeah I thought this was going to be tricky... this actually happened mid december and I've been doing as much research as I can, no lawyers seem to want to help since I filed pro se I guess. 1 did tell me that yes they did violate the stay and yes I can file a lawsuit against them (I pretty much knew that already though!)

I actually did call the court to ask about what the "correct" thing to file was and they said they couldn't tell me. I wanted to file this before discharge which should be on Jan. 26...

And I thought that I could "sue" them for $1,000 for each violation??? The 2 automatic stay ones were that they continued to contact me by email after being notified of the filing and that they repoed the car without getting a relief from stay. They also had the assistant manager misrepresent herself as the company's lawyer which I have in writing, as well as demanding that I immediately email them some schedules a week before they were even due at the court...

[justbroke]

And I thought that I could "sue" them for $1,000 for each violation??? The 2 automatic stay ones were that they continued to contact me by email after being notified of the filing and that they repoed the car without getting a relief from stay. They also had the assistant manager misrepresent herself as the company's lawyer which I have in writing, as well as demanding that I immediately email them some schedules a week before they were even due at the court...

Just more wisdom from a been there, done that person.

First, the clerk's office can't give legal advice. Second... just who did you talk to? Intake, or your case manager? Third, I've never heard of doing this by complaint (AP). I'm guessing that you asked them "what should I do" and didn't ask them if a Motion for Order to Show Cause (and for Sanctions) is by Motion or by Complaint. You see, they are two different questions!

When the creditor continued to contact you by mail, e-mail or otherwise, did you send them a notice that they must stop and that they are in violation of the automatic stay?

What you think about and read about is probably the TILA and/por FDCPA violations which you can bring as mini-lawsuits, via complaint (adversarial proceeding), within the Bankruptcy process. As mentioned earlier, an AP can get expensive to litigate. It will then require that you know the Federal Rules of Civil Procedure, which any savvy lawyer can run rings around the average pro se litigant and get the case dismissed by summary judgment over a mere procedural misstep.

So, I don't know why you want to do this by AP. I would file it as a Motion for Order to Show Cause and for Sanctions. But that's just me. And yes, I have reviewed many cases on the matter, as I had to actually draft one of these against one of my creditors, but they backed off.

[chrisandsarah]

Yeah my question to the court was along the lines of "the creditor did this, so what do I do?"... I'll try again tomorrow wording it the way you did, if it is by motion or complaint. I actually don't care which was I file it, I'm just not sure of which way is correct...

And yes I did email the creditor back clearly stating that she was in violation of the stay, her response was "no we're not"... She also tried to tell me that repoing the car was not a violation either...

[justbroke]

Yeah my question to the court was along the lines of "the creditor did this, so what do I do?"... I'll try again tomorrow wording it the way you did, if it is by motion or complaint. I actually don't care which was I file it, I'm just not sure of which way is correct...

Good. You're just trying to determine if it's by motion or by complaint. Not a legal question at all.. as it's procedural. You should start the conversation with... "I have a procedural question..."

And yes I did email the creditor back clearly stating that she was in violation of the stay, her response was "no we're not"... She also tried to tell me that repoing the car was not a violation either...

You need to print the e-mails (each individually) and attach them as Exhibits to your Motion.

[chrisandsarah]

Thanks for the advice, I'll be sure to say it's procedural this time...

Oh and I've kept copies of the emails, those are going to be sent in as well...

If this is a motion that I need to file, do you have any idea of what information I would need to include that would be different than the complaint? I found the adversary complaint coversheet to fill out, but have not been able to find anything for a motion... I'm in MD if it matters... Thanks.

[justbroke]

It depends on how picky your District is around the format of pleadings. You may be able to use a similar format for your Motion, as you would for your Complaint.

See your local rules.

[FloridaGuy]

HHhhmmmm.....

OK... I'm playing devils advocate this time. (not my usual!) Are you sure doing this is worth all the time, effort and cost? Even IF you recoup any money, how much time, grief and money will it cost you overall? How much will you actually be ahead in the end? I know... it may be the principle of the thing.

I seriously considered going after BofA. (With the assistance of our lawyer) They contacted me 13 times after we filed. They even sent someone from a CA to my home and workplace to speak with me and take photos.

I even got calls AFTER they had already filed claims in my case, (Multiple Bof A accounts)... one hand didn't know what the other was doing.

In the end, I decided to let it go as we are having enough grief just dealing with the BK, let alone having to do different hearings, filings, etc. I just want it to all get over with.

Just my .02

[chrisandsarah]

True that it would be a bit extra to do... I honestly think that even if I get back as little as $100 it would be worth it to cause them a little bit of headache... And I hate the thought that these companies get away with doing things like this and barely anyone decides to go after them... If they think they can get away with it they'll keep doing it, and then in the end what's the point of all the bk protections if creditors just ignore it anyways?

[FloridaGuy]

I agree... I would love to 'stick it to the man" so to speak, when they break the rules. However, in my case like I stated, it was multiple accounts with BofA. You would think they would have everything tied together or be able to do a search to associate a BK filing and enter the info all at once.

But, I figure they want their money, and since I'm sticking them with about an 80K loss, I can't blame them too much. Although, I was PO'd every time I got the calls. My lawyer said... let me know when you want to drop the hammer on them. Now... If I get one more call, that may put me over the edge!

[HHM]

Umm, keep in mind, if you lose, you can be responsible to pay the creditors legal fees.

Big picture, unless you want the car back, it is probably not worth it. Technically, asking for the petition is probably not a violation, but the repo of the car while the automatic stay was in effect is a clear violation.

[chrisandsarah]

Well here is what happened... I called the court and explained that I just wanted to know if filing a motion or complaint was the correct procedure. They asked about the situation and I explained and they said either a Motion of Misc. Relief or an Adversary Proceeding was what I needed to file. Then they gave me a number for to call for legal advice... I called and they wanted $35 just for advice... I didn't pay them...

[justbroke]

Those "legal advice" services aren't all they are cracked up to be anyhow.

I'm surprised they asked what you were trying to do. All you wanted to know if pleadings for sanctions and stay violations are by motion or by complaint (AP). Interesting how you got into a discussion about it.

If you're having this much trouble navigating the legal system, I would either abandon this track -- especially if you don't want the car -- or pay the $35 and see what assistance they'll give you. I would not want to get into an AP (complaint litigation) without a lawyer.