Is this a violation of the automatic stay?

[AbbeyA]

Not sure where to put this, but here goes... I need the legal guys to help on this one.

We filed ch. 7 bk on Oct. 09. Our case is not yet discharged due to a creditor asking for 3 different time extensions in order to file an objection to discharge -- nothing filed at this point, they have until June 30th. This creditor has a lien against our home for a business loan dh personally guaranteed (the equity in the home was pledged as collateral for the loan). Our house is currently in foreclosure by both the primary mortgage company and the bank that holds a HELOC, who both filed motions to lift the automatic stay and were granted.

Today we received paperwork from the troublesome creditor ... it is their answer, affirmative defenses and verified counterclaim for mortgage foreclosure. At the end of the countersuit, they are asking for a judgment of foreclosure, a personal judgment for deficiency, a judgment for attorneys' fees, all costs and expenses, among other things.

It is also an attempt for them to get a judge to prioritize liens, as stated in the answer and affirmative defense section.

Is this a violation of the automatic stay in bankruptcy? This creditor did not file to lift the stay. Furthermore, is this some way for them to circumvent the system and get a deficiency judgment after the bk is discharged (assuming they don't file an objection on the 30th and we are discharged) that they can hold us to?

[BobMango]

Sure sounds like a violation of the automatic stay, but if are they filing an AP is this related? If they did not file for relief from the stay and you are not discharged the stay is still in effect. Assuming that this debt is discharged, the only recourse they will have after your discharge will be to foreclose and even then it looks like they are third in line. Unless the bankruptcy court does not grant discharge on this debt they can not come after you for anything post discharge, aside from the previously mentioned foreclosure, but even then they cannot seek deficiency balances or court costs, etc from you.

[AbbeyA]

This is the same creditor who has been causing lots of problems for us -- it is all described in the AP forum. I have sent an email to our attorney and am waiting to hear back from him about this. I know that violations of the automatic stay are very serious offenses, I certainly hope we cans use this to our advantage and have the judge file sanctions against them. There is no AP at this time going on, just a threat of it without any merit behind it.

What kind of disciplinary action could be taken against this law firm for violation of the automatic stay?

[AbbeyA]

Ok, just talked to our attorney -- this creditor actually did file to lift the stay, which our attorney did not tell us about. He told us about the mortgage and heloc banks' filings to lift the stay, but not about this one. So they are not in violation of anything. He said as far as the mortgage is concerned and the other debts, they will be discharged after this last time extension ends on June 30th. This creditor may or may not file an AP -- if they don't, it's finally all over. If they do, the saga continues but all the other business debts dh personally guaranteed and our mortgage/heloc/credit cards are discharged ...