Tricky one-Automatic Stay & OD bank account statements

[ccsjoe]

So most of you know I'm gearing up to take two of my creditors to task for automatic stay violations. Both are cc's. But here's one I have not seen anywhere.

I included an overdrawn checking account into the BK filing. I received a statement on that account today. Because it is overdrawn, and included with the bk, it is a creditor. So was receiving the statement and maintaining online account access which shows me how much I owe a violation of the stay?

I filed 8/27, notices went out to creditors (including checking account) on 9/1. Thanks

[tcreegan]

Hi Joe,

So was receiving the statement and maintaining online account access which shows me how much I owe a violation of the stay?

I have seen it go both ways on the statement, seen lots of lenders pull online access b/c they are afraid of the stay but I haven't seen a case where it was called a violation.

If I see anything relevant I will send it your way!

Tom in Colo

[df04527]

The mere act of sending a statement is a violation if they are trying to collect.

[biotechsolution]

you realize to show violations of the automatic stay and get sanctions from the bankruptcy court you have to show 'damages'.

Filing for FCDRA violations you don't have to show damages and that's where you get your $1000/violation but the bankruptcy court
isn't the venue for this, that is your district court.

[tcreegan]

Hi all,

....damages can be your time spent dealing w/ it. Good to know on the FCDRA violations biotechsolution, maybe Joe can double dip...BK court and district court....do you get legal costs on the FCDRA?

Tom in Colo

[ccsjoe]

Good point, maybe I could double dip. Biotech, I know under bk law I have to show damages, and I've done quite a bit of research regarding our bk judge. He is very debtor friendly, and his decisions have awarded damages for time spent dealing with creditors. Thank you for the FCDRA angle, I will research that one as well for my two cc creditors.

On the checking account, because it is a demand deposit account, they legally have to send me a statement, however the way that this legal burden interacts with the legal burden of the stay is what is unclear.

[tobee43]

joe...run it by your atty tomorrow...see what he says. from what i understand they are in violation in both areas. however, the stay may be tricky....prehaps even imposed by local or district guidelines...so i would do a quick run by with the atty.

[ccsjoe]

joe...run it by your atty tomorrow...see what he says. from what i understand they are in violation in both areas. however, the stay may be tricky....prehaps even imposed by local or district guidelines...so i would do a quick run by with the atty.

I will, I just like to run by the opinions and research here prior to. I've come accross nothing that provides a precedent for this situation, and perhaps it is because the legal requirement to provide statements on DDA's outweighs the stay. I honestly do not know.

[tobee43]

I will, I just like to run by the opinions and research here prior to. I've come accross nothing that provides a precedent for this situation, and perhaps it is because the legal requirement to provide statements on DDA's outweighs the stay. I honestly do not know.

yeah...i hear you, and i also know this is a gutsy move on your behalf....so your laying the ground rules for the precedence on the matter on this site that i have been able to research. very interesting to follow.

[ccsjoe]

Final Answer

After checking with 2 attorneys, include my own, and a myriad of research the final answer is:

Because the checking account statements do not include words like "pay this amount" or "payment due date" nor any other reference to collection or attempt to get you to fork over cash, they are unaffected by the stay and thus the legal requirement for banks to send those to account holders regularly does not violate the stay.

What would violate the stay would be a letter from the bank asking you to bring your account current.

[tobee43]

ahhhhhhh....interesting...but a letter AFTER the fact...like being it current after the language already has been made clear?