Statue of limitations on taking a creditor back to court for voilating the BK stay

[bcss]

Does anyone know the statue of limitations on taking a creditor back to BK court for violating the BK stay and/or the permanent injunction? Is it federal or state? Can you point me to the law.

[tobee43]

i believe it is permanent.....someone will hopefully chime in to correct me but as far as i understand it the discharge injunction is authorized by section 524(a)(2) of the Bankruptcy Code. it provides that a bankruptcy discharge "operates as an injunction against... an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived...." 11 USC § 524.

[frogger]

What kind of violation are you talking about?

[tobee43]

oh! found this in my files that i had researched about the subject matter...this is (sorry),somewhat of my rambling notes, but i'm certain the cases are applicable or i wouldn't have noted them, maybe one or two of the items may be helpful? :

"The discharge injunction is permanent, survives the bankruptcy case and is always applicable with respect to every debt that was discharged. A Senate Report explains the impact of the injunction:

The injunction is to give complete effect to the discharge and to eliminate any doubt concerning the effect of the discharge as a total prohibition on debt collection efforts. This paragraph ... cover[s] any act to collect, such as dunning by telephone or letter, or indirectly through friends, relatives, or employers, harassment, threats of repossession and the like.

S. REP. No. 95-989, at 182-83 (1979).



Although the bankruptcy discharge eliminates a debt as a personal liability, it does not affect a lien that provides security for the debt. See § 522(c)(2). Since 1886, the law has been settled that a discharge in a liquidation bankruptcy case (a chapter 7 case under present law) does not discharge a lien against real or personal property; liens survive or pass through bankruptcy unaffected. See, e.g., Johnson v. Home State Bank, 501 U.S. 78, 83, 111 S.Ct. 2150, 2153, 115 L.Ed.2d 66 (1991); Long v. Bullard, 117 U.S. 617, 620, 6 S.Ct. 917, 918, 29 L.Ed. 1004 (1886). In Long, the lien survived because the Bankruptcy Act of 1867, § 20 provided that secured debts were not provable, except to the extent of a deficiency."

"Violate the Discharge Injunction at Your Own Peril and that of your Client’s"

"The Courts will defend discharged debtors, and punish creditors and their attorneys, who are found to have violated the discharge injunction. "Section 524(a) is a broad injunction power which effectively bars creditors from collecting debts as personal liabilities from a discharged debtor." In re Meyers, 344 B.R. 61, 64 (Bankr.E.D.Pa,2006). Unlike the Automatic Stay provisions (§ 362 of the Bankruptcy Code), § 524 does not contain an express provision authorizing an award of actual damages as a remedy for violations of the discharge injunction. See In re Hardy, 97 F.3d 1384,1389 (11th Cir.l996)(Section 524 "does not specifically authorize monetary relief.") and In re Nassoko, 405 B.R. 515,520 (Bankr.S.D.N.Y.2009) ("Section 524 does not include an explicit enforcement mechanism.").



Historically, Courts have referred to the remedy provided by § 362(k) as a private right of action, and noted the absence of a parallel provision in § 524. "[I]n contrast to section 362(h)[now § 362(k) ], which remedies violations of the automatic stay by mandating actual damages,... section 524 is silent with respect to a private right of action for debtors injured by a creditor's violation of the discharge injunction." In re Meyers, 344 B.R. at 64. "While the Third Circuit has not addressed whether section 524 implies a private right of action, it has observed that several other circuits have found that it does not. See In re Joubert, 411 F.3d 452, 456 (3d Cir.2005) (citing e.g. Cox v. Zale Delaware, Inc., 239 F.3d 910, 917 (7th Cir.2001); Bessette v. Avco Financial Services, Inc., 230 F.3d 439, 444-45 (1st Cir.2000); Pertuso v. Ford Motor Credit, 233 F.3d 417, 421 (6th Cir.2000); Hardy v. United States, 97

F.3d 1384, 1388 (1lth Cir. 1996))."



"The absence of an express right of action under section 524 if, in fact, no such right of action exists, does not mean that a violation of the discharge injunction cannot be remedied. Bankruptcy courts have regularly exercised their contempt power under 11 U.S.C. § 105 in order to remedy violations of the discharge injunction." In re Meyers, 344 B.R. at 64-65. (citations omitted).



A court may impose civil contempt sanctions where there is clear and convincing evidence that (1) a valid order of the court existed; (2) the defendant had knowledge of the order; and (3) the defendant disobeyed the order. See Robin v. Woods, 28 F.3d 396,399 (3d Cir.1994); In re Close, 2003 WL 22697825 at *10.



Earlier this year, a Judge of the United States Bankruptcy Court for the Eastern District of Pennsylvania awarded $198.00 in actual damages against a Credit Union and their attorneys when they pursued monetary damages in connection with an in rem mortgage foreclosure action against a discharged debtor. While that amount does not appear to be significant, it is worth mentioning that the Court awarded substantial attorney fees plus costs to the debtor’s attorney in connection with the award."

[bcss]

Thanks everyone for your replies. Sorry I haven't got back to this sooner. Busy at work, Yay!

Here's my situation, Filed Chapter 7 late June 2011, discharged and closed late October 2011, no asset. All un-secured credit card debt, no cars or real estate. During the BK and after there were several creditors that called and sent letters.

One such JDB that bought a debt from a major bank repeatedly called and sent letters during BK stay. I had to tell them several times on the phone I was in bankruptcy, case#, attorney's name and phone number. After closing they stopped, but is the only collection account still listed on my credit reports as included in BK. All documented.

Have had several send letters and lot of phone calls after my discharge. Kept recorded messages, letters, ect gave to my BK attorney. Now some of these violations are over a year old. I'm sure there is some kind of statue of limits to take legal action against them. My attorney seemed interested in them, but is sitting on them. Concerned that I will loose from being time bared. I really like my attorney, did a great job, was very patient with me. Does anyone know what the SOL is here in California on such cases?

Just amazing. A couple of months ago I started getting phone calls from a JDB. Told them you know I filled BK and of course they act dumb. A couple of them starting acting nasty and I asked if they understand how serious it is to violate the BK injunction. Click. The lady had an address for me that is actually my attorney's address. She didn't know I filed BK, yea right. I just got a couple of letters from one JDB for two accounts. Its getting old and I want to do something about it. Let me have my fresh start.

Thanks for listening, I feel better now

[tobee43]

morning bcss.....as stated above there is no statue of limitations on your injuction against the creditor:


"The discharge injunction is permanent, survives the bankruptcy case and is always applicable with respect to every debt that was discharged. A Senate Report explains the impact of the injunction:

"The discharge injunction is permanentt, survives the bankruptcy case and is always applicable with respect to every debt that was discharged. A Senate Report explains the impact of the injunction:


The injunction is to give complete effect to the discharge and to eliminate any doubt concerning the effect of the discharge as a total prohibition on debt collection efforts. This paragraph ... cover[s] any act to collect, such as dunning by telephone or letter, or indirectly through friends, relatives, or employers, harassment, threats of repossession and the like.

S. REP. No. 95-989, at 182-83 (1979)."

i would just nicely mention that to your atty and see what his/her thoughts are. being in calif makes not difference that the US bk court imposed this injunction, just because you filed in calif. go GET EM!!

[bcss]

And a good morning to you Tobee.
I guess what I'm worried about, there must be a time limit (SOL) on how long I can sit on this before I can take legal action against someone that violates the injunction. Say I do nothing for several years past the time they sent me a letter, can I still do something about that letter? I understand that the injunction is permanent. So if someone called me 5, 10 or 20 years from now they have violated the injunction. I'm going to have to go put a fire under my attorney, or get my evidence back from him and get someone else to do it.

Thanks the info. I do plan on getting em

[keepsmiling]

1K a pop, well worth pursuing.
Good luck, keep us posted!

[bcss]

Ok. Talked to my attorney. He said I definitely have some violations, but he doesn't have time to do this. BK is not his primary practice. I'm going to go pick up my file. I don't know if this is proper to ask here, but does anyone know an attorney in Southern California, Los Angeles that specializing in this kind of case? Appreciate the help. I'll keep you posted what happens.

[keepsmiling]

There used to be a grad page on Gardiner's site but it is now down. However a Google search of "bootcamper bankruptcy California" brought up at least one

http://attorneychristine.com/About_Christine_Wilton.html

[tobee43]

just go GET EM!!! this is an easy money maker for some atty since the violation is so clear! i'm certain you will not have any problem finding someone to take the case. can you other atty refer you to someone he/she knows?

[Pizza]

I'm still trying to figure out where the Statue of Limitations is and who built it. Is it concrete, granite, or marble? XD

[tobee43]

LOL!!! nope pizza...it's brick and mortar

hand over a slice please there is NO pizza in florida!! it's been a REAL issue for us. LOL!! when we really want a "special" treat we overnight a pizza from nyc delivered by FEDX. the guy almost peed his pants (can i say that)...lol...FEDX comes to the door with a pizza box and the guy said in my 25 years i have never delivered a pizza in a box.

it's a real treat to do like for a birthday since it's like $59 dollars most of which goes into the overnight shipping. sorry about the pizza rambling, it's just your avatar has me missing REAL pizza

[keepsmiling]

OMG Tobee that is a GREAT story! Whenever we have been in FL we have noticed the same thing-- how hard it is to get real pizza. And if you just want a slice... FUGGEDABOUDIT. You have to commit to a whole pie.
I'm told it's the WATER that makes the difference.
Even here in suburban NJ, one of the local guys advertises that he imports his water from NY. Too funny.

[LadyInTheRed]

I'm still trying to figure out where the Statue of Limitations is and who built it. Is it concrete, granite, or marble? XD

LOL. For those who don't get the joke (I'm sure there are some), it is Statute of Limitations. Before I started working in the legal field eons ago, when most of my legal knowlege was from TV and movies, I thought it was statue too.

Apparently you need NY water to make good bagels too.