I have been following this forum for 2 years now, since it became apparent that a BK was in my future. I truly have to say the level of education I got here has been irreplaceable.
Basically, I started my publishing business 15 yrs ago with extreme success. Online news outlets and diminishing economy made it really hard for small printing concerns to keep up. I amassed considerable debt keeping my business afloat, and the last five years proved to be very difficult. Despite everything, I still thought that I could avoid BK as no one really was pursuing me aggressively. Had it not been for my condo association beating me with a FC auction unexpectedly while I arranged a short sale, I might not have filed at all. In any event, I did file pro se this Monday (the day before the auction!), although I did have the advice of the attorney I half paid two years ago, and also hired a form processor (I know, I should’ve used the attorney!). Given that it’s a no asset Ch7 BK, and all debts included in BK are basically CC’s that I have been discharged for at least 2-3 yrs, this is pretty much a clean case. The only concern I had was with my current commercial landlord.
The lease expired May 31st, and since then I have been on a month to month. I am also in arrears since the lease expired, although had all intentions of catching as they have been very lax. Since the beginning, I have always paid every other month for both months, without any penalties or even a word objecting. And they experienced a lot of turnover the last six months so I never got a lease renewal that I could sign.
Their new GM started about a month ago and she asked me for a signed lease renewal. I requested the paperwork and she took her sweet time to issue one with an increased rate. We discussed and she agreed to respect the old amount, and then took her sweet time to issue the correct paperwork. When she finally produced it, it was the day I learned that condo was being auctioned. Exactly one week before I decided to go ahead with the BK.
Under counsel, I was advised to not sign anything further and include them in the BK anyways, which I struggled with until the end.
IN any event, the day after the filing I notified the GM by email about the filing, as I wanted to let them know myself, and let them know that I was planning to start paying again come September as I would like to keep leasing with them. And that if they wished to terminate relationship I would understand. She was very nice and stated that she needed to notify her bosses abut that we will work something out.
To my surprise, come next morning and I find out they have changed the lock of the office. I confronted the GM and she said that since I filed my BK they felt that I had been stringing them along with that they felt that they needed the office belongings as collateral until either I paid in full or engaged on a payment plan. I told the GM that that was a violation of automatic stay. She said she has consulted with their attorney and they would need full payment or a payment plan in order to grant me access to the office. Again, I mentioned the automatic stay but she stated she was merely a messenger, and that they felt the stay did not apply to them as my contract with them had expired.
Called my attorney and agreed that it was a violation of automatic stay as the lease is in the name of my dba, a sole proprietorship. I asked him to represent me on this one, and he agreed to call them but nothing more. Have not heard from him since then. Called another attorney today, and again agreed that it is a violation, however, need to hire him for the complete BK. Court might recognize fees but only to a certain extent and I need to pay upfront. NO way, I can continue pro se.
In any event, my question to the very knowledgeable members of this forum is, does their counsel know something I don’t know? How can their attorney advise them to break an automatic stay so blatantly? Can they really argue that contract is expired even though they were still billing me monthly? A month to month constitutes an expired contract? I thought the automatic stay applied to all creditors, and that the only way of disposing of it was to file a motion to lift stay, and then show up to the 341 if they felt they could prove fraud.
My plan is to file an adversary action and an emergency motion for turnover on monday, and ask for immediate access to premises, fines and expense and damage reimbursement.
Can I ask for damages for the week I have not been able to access my files, loss of income because I don’t have access to my database, computer with advertising contracts waiting to be signed, documents of reference etc. But most importantly, my old bank statements, income tax returns my CA has been waiting for to elaborate my tax returns from the last five years that I need prior to 341 to complete BK.
What can I expect from this proceedings? What kind of legal argument can they have that a judge or trustee would not see this as a violation? And if things do go my way, can I legally use the premises until end of august or even September? How soon can I expect them to provide access? And if not, what other recourse would I have? Negotiate a payment plan? Now I am upset at them, and want to make them pay.
I apologize if this is a long email but I wanted to squeeze in as many facts as possible. I look forward to members’ comments and to keep everybody abreast of developments.
Basically, I started my publishing business 15 yrs ago with extreme success. Online news outlets and diminishing economy made it really hard for small printing concerns to keep up. I amassed considerable debt keeping my business afloat, and the last five years proved to be very difficult. Despite everything, I still thought that I could avoid BK as no one really was pursuing me aggressively. Had it not been for my condo association beating me with a FC auction unexpectedly while I arranged a short sale, I might not have filed at all. In any event, I did file pro se this Monday (the day before the auction!), although I did have the advice of the attorney I half paid two years ago, and also hired a form processor (I know, I should’ve used the attorney!). Given that it’s a no asset Ch7 BK, and all debts included in BK are basically CC’s that I have been discharged for at least 2-3 yrs, this is pretty much a clean case. The only concern I had was with my current commercial landlord.
The lease expired May 31st, and since then I have been on a month to month. I am also in arrears since the lease expired, although had all intentions of catching as they have been very lax. Since the beginning, I have always paid every other month for both months, without any penalties or even a word objecting. And they experienced a lot of turnover the last six months so I never got a lease renewal that I could sign.
Their new GM started about a month ago and she asked me for a signed lease renewal. I requested the paperwork and she took her sweet time to issue one with an increased rate. We discussed and she agreed to respect the old amount, and then took her sweet time to issue the correct paperwork. When she finally produced it, it was the day I learned that condo was being auctioned. Exactly one week before I decided to go ahead with the BK.
Under counsel, I was advised to not sign anything further and include them in the BK anyways, which I struggled with until the end.
IN any event, the day after the filing I notified the GM by email about the filing, as I wanted to let them know myself, and let them know that I was planning to start paying again come September as I would like to keep leasing with them. And that if they wished to terminate relationship I would understand. She was very nice and stated that she needed to notify her bosses abut that we will work something out.
To my surprise, come next morning and I find out they have changed the lock of the office. I confronted the GM and she said that since I filed my BK they felt that I had been stringing them along with that they felt that they needed the office belongings as collateral until either I paid in full or engaged on a payment plan. I told the GM that that was a violation of automatic stay. She said she has consulted with their attorney and they would need full payment or a payment plan in order to grant me access to the office. Again, I mentioned the automatic stay but she stated she was merely a messenger, and that they felt the stay did not apply to them as my contract with them had expired.
Called my attorney and agreed that it was a violation of automatic stay as the lease is in the name of my dba, a sole proprietorship. I asked him to represent me on this one, and he agreed to call them but nothing more. Have not heard from him since then. Called another attorney today, and again agreed that it is a violation, however, need to hire him for the complete BK. Court might recognize fees but only to a certain extent and I need to pay upfront. NO way, I can continue pro se.
In any event, my question to the very knowledgeable members of this forum is, does their counsel know something I don’t know? How can their attorney advise them to break an automatic stay so blatantly? Can they really argue that contract is expired even though they were still billing me monthly? A month to month constitutes an expired contract? I thought the automatic stay applied to all creditors, and that the only way of disposing of it was to file a motion to lift stay, and then show up to the 341 if they felt they could prove fraud.
My plan is to file an adversary action and an emergency motion for turnover on monday, and ask for immediate access to premises, fines and expense and damage reimbursement.
Can I ask for damages for the week I have not been able to access my files, loss of income because I don’t have access to my database, computer with advertising contracts waiting to be signed, documents of reference etc. But most importantly, my old bank statements, income tax returns my CA has been waiting for to elaborate my tax returns from the last five years that I need prior to 341 to complete BK.
What can I expect from this proceedings? What kind of legal argument can they have that a judge or trustee would not see this as a violation? And if things do go my way, can I legally use the premises until end of august or even September? How soon can I expect them to provide access? And if not, what other recourse would I have? Negotiate a payment plan? Now I am upset at them, and want to make them pay.
I apologize if this is a long email but I wanted to squeeze in as many facts as possible. I look forward to members’ comments and to keep everybody abreast of developments.
Bankruptcy Wizard
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