Continued Collection After Discharge

[dingdong]

Hi Everyone!

Took a little break from my BKforum addiction, computer died for a while and trying to spend less time on the internet and more in the real world.

I posted some time ago about a creditor who was notified of my BK, ( I has discharged in March/09), have marked the TL IIB on my CR, but they keep dunning the holy bajeebas out of me. I am still getting them, even in July.

They also placed two hards on my CR after filing.

They were absolutely 100% notified by the courts, not being noticed is not an issue , nor a defense for them in this case. They have dunned me at least 7 times since filing, plus the two hards. I kept every dunning letter.

I sent them a letter telling them to get lost, the debt is discharged and they keep sending them (dunning letters).

So my question is..., should I send an ITS letter with an offer to settle ( meaning they give me the moolah in exchange for not suing), or just file a motion to show cause and a civil action against them?

I have them on multiple violations for three separate debts. They have violated the Rosenthal Act ( California's version of the FDCPA, which offers more protection as it extends to the OC as well as third party CA, the FDCPA, and the federal bankruptcy stay. (11 USC Section 362) --I think that is the correct section?

I have a letter drafted, just waiting to get up the hutzpah to send it.

I know I could at least make them suffer a bit in Small Claims court and possibly get a couple thousand out of them. My demand in the ITS is for 5000.00, which they would probably easily spend if they have to defend in Federal COurt. I feel competant enough to move forward with litigation. Small Claims would be a piece of cake for the Rosenthal Act violations, (FDCPA like stuff).

I just can't stand this CA, they are local and nasty and violate all the time and they should either play by the rules or be sued. They are incredibly litigious in our local Superior Court and I would take great pleasure in turning the tide on their litigation spree.

So what do you all think-should I go for it, and are there any downsides that I haven't anticipated that anyone can point to ?

They can't come back and successfully sue me, the debt is discharged, they can't use the Bonafied Error defense with 7 dunning lettters in my possession, I filed 8 months ago, the "computer done it" defense might fly on one or two letters but 7? One of the letters is threatening legal action. It was mailed two weeks after my discharge, which they received notice of. Plus the dumbasses marked the debt IIB, so they basically self admitted to being noticed. They are just scum and trying to get any money they can- I want to stop them,

[StartingOver08]

Welcome back, DingDong! We missed you!

I am looking for some cases for you - I think you should go for it (actually sue them)! Sue the collectors/OC/CA - they know full well you filed and have been discharged. They are relying on intimidation. I really believe you have the evidence based on your post. However, shouldn't you go for the contempt sanctions in the BK court rather than small claims? You can get awarded larger funds and your attorney fees will be paid (did you go pro se before??) Here are some articles to give you encouragement and one interesting case:

http://pacer.flmb.uscourts.gov/pdf-new/97-1575-2.pdf (This one is against Wells Fargo, for trying to collect addtional fees on discharged mortgage debt. Wells Fargo lost.)

http://www.************************/...ge-injunction/

http://www.moranlaw.net/discharge_violations.htm

[BassBoy]

Ummm......$5000 and your words here "meaning they give me the moolah in exchange for not suing." That's balckmale and extortion my friend. Don't do any such thing.

If you hired and attorney to handle your case, they may be able to advise you how to handle it after everything you've done. Maybe call the collector(s), ask to speak with a supervisor or manager and explain what is going on.

Just keep the letters and if something comes up, like a suit against, you have ALL THE AMUNITION you'll ever need to rid yourself of these people.

DO NOT send your drafted letter. That kinda thing could put you in really hot water.

[whipster1]

You need to file a contempt motion in BK court, you have to re-open your case to do so. Instant $$$ is in your future my friend

[aces67]

I would sue them! Creditors like that irritate me to no end.

[BobMango]

Dingdong, I would definitely take legal action against them, both in BK court and small claims. Contrary to what BassBoy said, offering to settle for a cash payment instead of filing suit is not blackmail nor extortion, these kinds of negotiations happen all the time.

I was just involved in a situation where we had taken legal action against another party and won, then in a separate case sent them an offer to settle the remaining legal issues for 80% of the damages. They accepted and paid. Everyone was happy since we got paid sooner than we would have if the court was involved, the other party was happy to settle for a discount and avoid the judgment, and the courts weren't burdened with another lawsuit.

[BassBoy]

Contrary to what BassBoy said, offering to settle for a cash payment instead of filing suit is not blackmail nor extortion, these kinds of negotiations happen all the time.

The OP's words were "meaning they give me the moolah in exchange for not suing." Wording it this way sounds like blackmale or extorsion. Negotiating to settle for breaking the law is one thing, but to say that you'll except payment or goods and keep it out of court would probably be close to crossing that line of blackmale or extorsion.

To the OP: Just be careful how you word it.

[Mi Bankruptcy]

Go for it Ding Dong!! If you need motivation find some threads about creditors harassing forum members. Who knows.. it could turn into a sticky on how to deal with creditors after filing.

[RainMoM]

Welcome back, DingDong! We missed you!

I am looking for some cases for you - I think you should go for it (actually sue them)! Sue the collectors/OC/CA - they know full well you filed and have been discharged. They are relying on intimidation. I really believe you have the evidence based on your post. However, shouldn't you go for the contempt sanctions in the BK court rather than small claims? You can get awarded larger funds and your attorney fees will be paid (did you go pro se before??) Here are some articles to give you encouragement and one interesting case:

http://pacer.flmb.uscourts.gov/pdf-new/97-1575-2.pdf (This one is against Wells Fargo, for trying to collect addtional fees on discharged mortgage debt. Wells Fargo lost.)

http://www.************************/...ge-injunction/

http://www.moranlaw.net/discharge_violations.htm

The case againest wells fargo, just proves even more how nasty they can be !! So happy that she won tho !!

Good luck ding dong, I agree tho, you should sue em ! Hell they got no problems trying to sue you !

[BobMango]

The OP's words were "meaning they give me the moolah in exchange for not suing." Wording it this way sounds like blackmale or extorsion. Negotiating to settle for breaking the law is one thing, but to say that you'll except payment or goods and keep it out of court would probably be close to crossing that line of blackmale or extorsion.

Not to beat a dead horse here, but it's the same thing. Sending a demand letter asking for a cash settlement before taking legal action is not extortion or blackmail and the courts usually look at it as an effort to avoid litigation. This is done is civil cases all the time. If you have no grounds to sue then the court can find that your lawsuit is frivolous and dismiss, and if you continue to engage in such behavior then there can be consequences.

If the OP had instead simply got mad, manufactured some letters to make a case and then threatened to sue, that would be fraudulent. In this case the CA has clearly violated the law and harassed the OP, he is clearly within his legal rights to send a demand letter indicating that he is contemplating legal action, which he will not pursue in exchange for the CA ceasing and desisting in their illegal actions and providing a cash settlement.

[dingdong]

Wow everyone, thanks for the replies and the words of encouragement.

Just for the record, I didn't word the demand, "give me the moolah", just paraphrased it that way in the post.

I drafted a very professional , well worded letter. The offer to settle is phrased as "I will settle this matter and release you from any further liability or legal action regarding this matter if the following terms are met"

List the terms

Then stated a date to comply with or I would pursue litigation.

Actually here in California, if I wanted to sue in Small Claims Court, you are supposed to ask for a settlement or whatever is owed you first, before filing the SC suit.

Moving to show cause for sanctions would probably be the best way to get these weenies to comply with the BK code, but it would probably be a heck of a lot easier to go the small claims route.

I basically set out in the letter what evidence I have on their violations, used the appropriate part of the code ( FDCPA/ BK/Rosenthal) that was violated, and offered to settle before going to court.

I am pretty sure that is legal. CA's do it all the time, pay up for this amount or we sue, and so do other party's in civil matters. It is not extortion ( at least I hope not), just an offer to settle the matter before litigation.


Even in AP's, creditors make offers to settle before the hearing is scheduled.

Thanks again and I appreciate any insight and observances.

DD

[debtmonster]

Dingdong, if you don't sue them, I will be very disappointed in you.

[dingdong]

Debtmonster. You have sealed the deal. I could never live with such a burden!

I am really close to sending it. I am actually going to meet with a local BK attorney who is also a trustee and get his opinion.

The only problem with going for sanctions/contempt is there are really not a lot of damages. If a creditor took my car after filing and didn't give it back or jacked money from a bank acount and caused some NSF fees and issues, then I would have more gravy for damages.

They did cause my score to drop by about 6 points with the two hards, and I did apply for credit ( a crappy car loan and was denied), so that may be considered damages as they were the cause for the only score drop since filing and my score had actually improved upon filing. I printed the Myfico alert with the score drop due to the hards and it is noticed in the score tracker deally.

I am going to run it by the attorney soon. I filed pro-se so I can't go to the attorney who filed my BK, cause it was me ( not that I am an attorney).

I don't really care if I get a bunch of money, I would take great pleasure in just making them show up in court a few times and ruining their day/week as they have to so many other people around here. They are really bad, and basically the only local CA and just move to litigation quickly and serve people at old addresses to try and get default judgements. Just a bunch of jerks-so they must pay.

Plus, they messed with my mom a while back right after my dad died for a medical bill, tried to sue her for an insurance mess up/billing issue-so I am holding a huge vendetta against them.

I am usually very forgiving, but you mess with my mama , you cross the line!!

I will keep you all posted as to what the attorney says. If he wants to take the case, I will probably let him, though it may not be a big money case, but maybe he would write an ITS letter and hope for settlement and we would both get something.

I am sure an ITS letter on BK attorney letterhead would be much more persuasive than a letter from me.

Love you guys, glad to be back in the BK forum mix again.

[blankslate]

Glad to see you back DingDong! I've been wondering about you...

I think you are sufficiently armed with information and ready to put these jerks in their place!

I'm having some trouble with one too. I just went through and started cleaning up my credit report disputing all of the accounts as "included in ch 7 bankruptcy" and one of them apparently decided to fight back by reporting a NEW derogatory mark. Grrrr. They were included in my matrix, they knew of all of the proceedings and then when the credit bureau investigated the dispute they put a new ding on there.

Stick it to the futher muckers!

[dingdong]

Hi Blankie!

Hope everything is going well in the land of stars!

I am really hoping to nail these guys. I will definitely keep you all posted on the outcome.