Filed Chapter 13 in August creditor levied account Oct 1

[adina]

Long story short - I have a landlord / tenant small claims court judgment for 2600 basically landlord never repaired anything in the year that i lived in the house but sued me saying i caused damage to her carpet. Judge alloted me 3400 but she filed a cross complaint and won the suit. She was notified of my bankrupcty and filed her claim I checked on pacer. On Friday i checked my account and it said legal fee the rep said a levy was issued for 2800 i only had 6.00 in the account but they took that anyway. So my question is can she get in some trouble for doing this also i have a direct deposit going in on friday and i notifed sheriff and bank but levy hasnt been removed yet what will happen

[HHM]

Yes, you can go after the landlord for violation of the automatic stay. This appears like a very deliberate and flagrant violation, so it may cost the landlord some money; you should pursue it.

As for bank garnishments, generally, the garnishment is only good on the day it was delivered. The bank simply grabs the money in the account at THAT time. Anything that comes in after shouldn't be touched. However, it is possible that states vary on this point, so your mileage may vary. In any event, if the garnishment does grab those funds, now you have a greater damages claim against the landlord for the automatic stay violation.

[adina]

Thanks i am a nervous wreck because i need my check i am in California does anyone know how a levy works. I notified the sheriff and they issued a Stay but i bank with B of A and i am afraid that they will continue the levy. No one at the bank can give me an answer the sheriff faxed the bank the stay though.

[tyson24]

All I can say as a landlord is, I would hate to be that landlord. I know it isn't a comfort right this minute because you need that money, but you will get that money back if they take it on Friday. Is BofA listed in your BK? Have you contacted your attorney on this?

[adina]

yes i contacted my attorney he says that if they take the direct deposit it is a violation of the stay and we can get the money back but he will charge me more fees.

[tyson24]

Oh fantastic....and NOT all at the same time. So the money you get back will essentially go to the attorney? Sorry for all this.

[adina]

yes originally i filed a chapter 13 and the payments were 1265 i kept telling my attorney that i dont have enough to pay that but he was saying we use the IRS standards and charged me 3300 than i kept pushing for a 7 and he said lets see if you pass the means test and i was able to include actual expenses i pay for childcare, health insurance etc.. now i pass the means for a 7 so we are converting but he wants additional money which i need to use the direct deposit to pay now this... honestly this BK has been a nightmare

[iv65536]

Adina: I would say your attorney needs to go after this landlord for damages plus attorney fees. Perhaps you may also want to talk about possibly objecting to the landlord's proof of claim.

Correct me if I'm wrong, but I believe a debtor's attorney fees can be rolled into the plan as an administrative claim, right?