Would I be succesful in Filing an AP

[dingdong]

I had a debt with a collection agency for quite a large sum (medical) that went to a local CA.

They received notice of my BK properly. They were notified by the courts, three times regarding this debt.

I had a dismissal for forgetting one document, however I corrected quickly and the dismissal was vacated and the BK reinstated..

The notice of dismissal and the notice of reinstatement were actually received by me the same day in the mail.

So therefore the creditor was noticed first at the original date of filing and then again at the point the case was reinstated ( the dismissal vacated) and then again upon discharge.

The CA has had adequate notice of the filing of the BK.

They did not list the debts IIB until just a few days before discharge. They cannot defend by saying they weren't notified, because they were obviously notified as the marked the accounts IIB late into the period of my BK.

They continued to send threatening collection letters during the period of the stay, and placed a hard inquiry on my CR about 2 months after being noticed ( and stlll no IIB notation on the accounts-all other creditors marked the accounts IIB soon after notice)

The sent another threatening collection notice after discharge.

I have saved all the letters and envelopes which are postmarked/dated. I have the credit alert and copies of my CR which shows the date of the hard and the time frame when the TL is not marked IIB.


Do I have a reasonable chance of a successful AP for sanctions?

I know they can be expensive, and honestly what I would like as a goal is to get this crap off of my CR. There are multiple accounts with this CA for the same creditor, but basically the same debt ( medical, same hospital -local hospital, so they are really cluttering up my CR with multiple negative tradelines. If I was able to get this stuff off of my CR, I believe my scores would improve quite a bit. My main goal in doing this is to buy a home in a few years. The negative TL will not drop off for 5 more years under the FCRA 7 year limit.

Am I wrong in thinking that if I filed an AP, this CA might make a settlement offer prior to the disposition of the AP and settle if I offer to dismiss?

I am sure it would cost them quite a bit in attorneys fees for representation and filing fees, so that they may just be open to settlement since they can't collect on the debt anyway, it was discharged. It seems like settlement would be a smart option for them, given that I have solid documentation that they violated the stay on at least 4 occasions. ( I have 4 collection letters plus a certified mailer with their address on it)

What do you think. Would this be a smart move or stupid.

You can all be hard on me if this sounds ridiculous, I can take it


Thanks!

DD

[justbroke]

It may be District specific, but I don't think you need to file an Adversary Proceeding (AP) in order to do this. From what I know, a Motion for Order to Show Cause and for Sanctions is just a contested matter and not done via an AP.

You should research Motion for Order to Show Cause and for Sanctions. You'll have to re-open your case as well (if it's closed).

I don't think that attacking this via motion is such a bad thing. When you file the Motion, you'll probably need the proposed order (remember that?) and to set a date with the clerk about 21 days in the future.

[dingdong]

Thanks. I will research that.

Do you think I would have a decent chance? Are there any tricks to searching in PACER in my district to see how judges may have ruled in similar circumstances?

[justbroke]

Thanks. I will research that.

Do you think I would have a decent chance? Are there any tricks to searching in PACER in my district to see how judges may have ruled in similar circumstances?

Tricks... yeah.

See if your District allows you to search the Judge's Calendar. Then, just back date it to last year. After the exhaustive list of hearings come up... search for "SHOW CAUSE" or "SANCTIONS".

For the IE... I did a lookup for you and here are some URLs to check...

http://www.casb.uscourts.gov/html/body_opinions.htm

http://www.casb.uscourts.gov/html/unpublished.htm

[dingdong]

You're a peach.

I filed in Santa Barbara however, but those will help give me some direction.

Thanks!

[biotechsolution]

for your 'motion to show cause for sanctions' you have to show actual
monetary damage. that will be the sticking point, not an easy thing to do.
check with your attorney who did your case. It'll cost you about $300 to just re-open the case and if you haven't suffered any real damage you can't claim any.
Most cases where the bankruptcy case will award damages are a result of years of collection problems and credit report errors that have resulted in lost loans or higher interest loans.

If you want your credit report fixed just send your discharge letter to each credit agency and they will fix the account.

And send a threatening one to the collection agency with a copy of your discharge and creditor matrix.

[justbroke]

for your 'motion to show cause for sanctions' you have to show actual monetary damage. that will be the sticking point, not an easy thing to do.

I think that the cost to file would suffice as actual damages. I'm unsure if dindong's case is even closed yet, so the $260 reopen fee may be moot. (If dingdong's case were closed, dingdong may rethink the $260 fee to re-open just to recover $260 and potentially some punitive damages.)

I believe you are correct (in your implication) that these (punitive damages) are harder to get. Yes, I would caution dingdong on spending money on this... but, in the same breath, I am one who is particularly tired of these creditors willfully doing these things because they are "certain" that the debtor won't do anything about it.

Here's a good case (dingdong) which is about someone continuing to bill after many notices. The sanctions were granted for both actual and punitive damages. Note that the debtor didn't have any "actual" damages except for attorney fees to file and defend the motion... which by definition makes them... actual damages.

http://pacer.flmb.uscourts.gov/pdf-new/43184906.pdf

Also see ESKANOS & ADLER v. Somkiat G. LEETIEN, 309 F.3d 1210 (9th Circuit). This was an appellate case in which the creditor continued a court action in violation of the stay... even after they were told to stop. They were insistent that they could continue the state court action post-petition. They lost.

Section 362(h) allows for actual and punitive damages, including costs and attorneys' fees, as sanctions for willful violations. Leetien sustained actual damages in defending against a continuing stay violationId at 30.

[Rick9972]

My goodness things get complicated real quick.

Well I for one believe simple is good and this is as simple as it gets. BK law is a wonderful thing, but using it on something like this is like taking a M1A1 main battle tank and going rabbit hunting. It will do the job but will you get anything out of it.

The most important thing dingdong posted about this situation is that a "CA" or other wise known a collection agency is doing the harrassment. CA's are governed by their own FEDERAL laws. How does this sound?

2) The false representation of --
(A) the character, amount, or legal status of any debt;
8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.

The beauty of the FDCPA is that if you prove one claim, you get $1000, plus damages plus attorney costs. The second most beautiful thing is that this is Federal law and case can be filed in Federal court. (You can probably do this pro se, I have done and won 3)

Something you are interested in, PM me and I will try to help.

[justbroke]

Rick brings up a good point. The FDCPA is always available as well. However, if you have an open Bankruptcy case... it could be easier to file a case under a Stay Violation.

But the FDCPA option is great! Plus, the U.S. District court (where you file it) is probably in the same building as or right near the U.S. Bankruptcy Court.

[dingdong]

Thanks for all the input.

Ideally I would like to threaten sanctions and FDCPA violations. I have them on two pretty solid FDCPA violations, but wanted to know if I had solid legal standing to go after them for stay violations. I have been working on a letter, kind of an ITS with a hint towards settlement if they so incline.

My goal would be to get these baddies off of my CR, possibly a little cashola as a settlement, and generally would like to scare the bajeebies out of them and make their britches stink.

They screwed with my mom a while back over a debt that should never have gone to CA ( insurance crap over my deceased dad).

NOBODY SCREWS WITH DINGDONG'S MOM AND GETS AWAY WITH IT!

(yes, I was yelling, sorry)


Anyway, so I know vengence isn't a great virtue, but these people need to learn to follow the rules and the law and play fair.

They are nasty and w/o integrity,and really I will be doing the public a service if I teach them a lesson. ( At least in my mind)

And honestly, the whole time they were sending me these collection letters I was scared they were going to come up with some reason to file an objection and screw up my BK. You just never know what these dirt bags are going to do. Part of me knew they really couldn't, but as a pro-se filer I just wasn't 100% sure, so it was a bit nervewracking getting dunned all the time by these weenies. This adds to my motivation for making them want to "pay".
Probably a stupid reason, but hey, I can't be rational all the time, now can I?

[Rick9972]

During my journey I have learned that ITS's letters are basically a waste of paper, ink and postage. CA's receive hundreds of them each month and have a standardized system in place to deal with them.

The way to past the worker bees and to someone that can do something is file.

1. File complaint - $350
2. Pay to have complaint served - $50
3. CA has twenty days to respond. (Beauty of using Federal Court is that in order for a attorney to represent them they must be accepted to practice in that court. Most CA lawyers are not, so they have to go find someone.)
4 Usually on day 17 the CA's new lawyer has explained that the bare min. cost to defend them is going to be $7500.
5. Day 18 Lawyer calls you and tells you that the CA is going to "agressively defend" themselves from your baseless accusations.
6. Day 19 Lawyer calls you back and states that "even though his client has done nothing wrong, in the interest of moving past this, you know the time and cost of each of us pursueing this claim, perhaps we can work something out."
7. Day 20 both file a memo of agreement extending time to respond by 5 days, due to current settlement discussions.
8. You agree to settle for $500 plus your expenses $400 and they permanently remove all accounts of yours from the CR's. You sign once they provide the E-Oscar reports requesting deletion.

Cash your check and send an email to CA telling them it was a pleasure doing business and that you hope they get another one of your accounts in the future.

[dingdong]

Thanks for that advice.

The good thing about this situation, is it is a fairly small (under 20 employees), local CA.

They have a pretty bad reputation locally for being scumbags and hire very uneducated staff, we're talking they are lucky if their staff has a high school diploma.

I live in an area where we have a large Mexican population because there is a lot of agriculture here. The Mexican population is a huge benefit to our local economy. They work their asses off in the fields and spend money here. If they were not here, our local economy would fold.

I was looking at our local court dockets and searched the CA name. Every single lawsuit they filed against a debtor had a Hispanic sur name. Every single one.

I am fairly certain they target this minority group because they think they are easy money and the probability of obtaining a judgement is high because many of them probably are not documented and afraid of the court system, or simply do not have the means or access to educate themselves of their rights.

They do not collect for any major CC or accounts, just local crap, local utilities, local businesses, hospitals, doctors.

There were no cases where they were named as defendants, so I don't believe they have a lot of "practice" defending FDCPA violations.

They have a fair amount of negative posts in a few local forums and a couple on Ripoffreport about their unethical practices.

I think my chances would be pretty good if I drafted a well thought out letter citing the appropriate portions of the law that they violated. The positive side to this scenario, is the debt has been discharged, so it can't really come back to bite me in the ass as they can't use the debt as leverage against me. They are up against a wall as far as the debt is concerned.

[Rick9972]

Thanks for that advice.

The good thing about this situation, is it is a fairly small (under 20 employees), local CA.

They have a pretty bad reputation locally for being scumbags and hire very uneducated staff, we're talking they are lucky if their staff has a high school diploma.

I live in an area where we have a large Mexican population because there is a lot of agriculture here. The Mexican population is a huge benefit to our local economy. They work their asses off in the fields and spend money here. If they were not here, our local economy would fold.

I was looking at our local court dockets and searched the CA name. Every single lawsuit they filed against a debtor had a Hispanic sur name. Every single one.

I am fairly certain they target this minority group because they think they are easy money and the probability of obtaining a judgement is high because many of them probably are not documented and afraid of the court system, or simply do not have the means or access to educate themselves of their rights.

They do not collect for any major CC or accounts, just local crap, local utilities, local businesses, hospitals, doctors.

There were no cases where they were named as defendants, so I don't believe they have a lot of "practice" defending FDCPA violations.

They have a fair amount of negative posts in a few local forums and a couple on Ripoffreport about their unethical practices.

I think my chances would be pretty good if I drafted a well thought out letter citing the appropriate portions of the law that they violated. The positive side to this scenario, is the debt has been discharged, so it can't really come back to bite me in the ass as they can't use the debt as leverage against me. They are up against a wall as far as the debt is concerned.

Given your situation, I agree that you have a well thought out approach.