Complaint to Determine Dischargeability and for Willful Violation

[justbroke]

I no longer just think that pro se debtors are preyed upon, I know that they are.

I have just filed an Adversary Proceeding for a Stay Violation and a Dischargeability Determination as well. If anything, this lawsuit (Adversary Proceeding (AP)/complaint) should at least wake them up and get them to fix all the billing issues. They are still billing me for pre-conversion stuff that was included in the Chapter 7 (11 USC 548) and sending nasty collection letters.

So this will be the true test of whether

1. the Court would really protect a pro se debtor against a big creditor (corporation) that keeps billing him,
2. whether continued collection letters and bills on pre-petition debt are really a violation,
3. whether a creditor is subject to a stay violation after being notified of the bankruptcy 2 times by the BNC and 3 times by the debtor (via FAX and mail with certificate of service filed)
4. whether a creditor can be found in violation of the stay and be subjected to actual damages
5. whether actual damages can include compulsory damages, like a $1,000 award per incident
6. whether damages can actually be awarded to a pro se debtor for actual costs, including travel time, postage, service costs, lost wages, costs to prosecute the complaint, etc.
7. whether punitive damages are warranted in a case where the debtor is pro se and the creditor clearly violated the stay multiple times
8. whether a 200% punitive award -- comparative to actual damages -- is sufficient to punish the creditor from doing this again
9. a bunch of issues on the interaction of 11 USC 548, 11 USC 727, and 11 USC 523

I'm not just doing this for potentially getting some damages awarded. I'm doing this on behalf of pro se debtors because I think the creditors and the court sometimes just overlook us as insignificant.

I didn't want to do an adversary proceeding (AP) because these things are complex and the procedures (Federal Rules of Civil Procedure, specifically) have so many traps for pro se plaintiffs, that it's not funny. I'm hoping to prevail on a motion for summary judgment, but I'm not holding my breath. I fully expect the creditor to respond. The question will be, what is their game plan on defending why they have continued to bill and demand pre-petition claims.

[tmoschetto]

I think this creditor has messed with the wrong pro se debtor! Please keep us posted JB.

I never got the impression that my pro se case was taken any differently than the ones who had representation. But, my trustee did save the 2 pro se debtors for last of the day, and maybe she was using us as an example when many of the attorneys prior to us were missing paperwork, and she was frustrated. In hindsight I guess it was probably pretty cutting to those attorneys when she used us 2 pro se debtors as an example -- like even us uneducated, untrained 'losers' were able to have their paperwork complete. Probably quite the insult now that I think about it in context.

[tigergem]

lol. I think it's funny that they don't know who they are messing with. Mr. Big Guns himself. May I please have your creditor's address so I can send them a sympathy card? Or can I file one with your BK clerk so it is on the record? ROFL.

I wish you the best. I know an AP is a quagmire. I have been "learning how".

[AngelinaCatHub]

JB, if anyone can, you can. You just may be making 'case law'. Good for you. There will be a special hamster dance reserved for this one. 'Hub

[Brazzy]

Typically creditors doing even look to see if the account is pro se or not. Major creditors basically throw out bankruptcy notifications when they come in and rely on third parties to scrub the portfolio daily for BK info. The only time that the attorney info is even looked at is if the debtor wants a reaffirmation agreement or in a chapter 13 if the creditor notices that a chapter 13 filing is pro se they will just wait for the dismissal which is pretty sure to follow. I dont disagree about how the court feels about pro se debtors as they do tend to get frustrated. They feel like they are baby sitting and a lot of the time they are. When you come on a forum like this you find people who are actually taking the time to learn what they need to know. Thats not always the case.

[tigergem]

if the creditor notices that a chapter 13 filing is pro se they will just wait for the dismissal which is pretty sure to follow.

Oh really now?

[justbroke]

I agree Brazzy on the "no look" attitude. However, this particular creditor has been noticed and called about one dozen times on this issue. It has gone nowhere at this point. I figure the AP will at least wake them up. If the court is on my side, perhaps an award of damages will keep them from doing it to someone else.

I'm fully expecting another pre-petition bill in the next 20 days as well as a "FINAL NOTICE" as well. Unless, the service on the president of the company actually gets some sort of awakening of the company. My real goal is just to stop the pre-petition billing and demand. It's getting sickening.

[Brazzy]

Its not that it cant be done as your doing. I would say that 98%+ (at the very least) of pro se ch13s do not see a plan get confirmed.

As for the "no look" its not really an attitude. Its really because so many times the creditor is serviced at the wrong address etc. Dealing with so much paper is simply time consuming and ineffective. Good luck with it. If you called them and they still dont respond then it sucks to be them. Odds are they'll look to settle.

[justbroke]

Its not that it cant be done as your doing. I would say that 98%+ (at the very least) of pro se ch13s do not see a plan get confirmed.

I know that too well. I'm now a Chapter 7 debtor who was a confirmed Chapter 13 debtor. I was congratulated for getting my plan confirmed. Most Chapter 13s never make it to confirmation. Almost all Chapter 13 pro se debtors can't get their plan confirmed.

And you're right on the "wait for dismissal". In the Chapter 13 context, over 60% of those cases don't make it to confirmation even with an attorney. This is why most creditors that have a pending foreclosure action will just stay the foreclosure for a while. Once the plan is confirmed though, they shouldn't be stalling the foreclosure, but they do.

As for the "no look" its not really an attitude. Its really because so many times the creditor is serviced at the wrong address etc. Dealing with so much paper is simply time consuming and ineffective. Good luck with it.

Too bad for them, that in the 11th Circuit, Judges have consistently found that service, even on an address that is for "payments only" is still "actual" service. They just whine too much. In this particular case, the BNC served them 2 times. I served them 3 times including at Corporate, Correspondence Address and FAX to Customer Service. Their system clearly shows me in bankruptcy as they filed a claim with a printout from their system showing a note indicating the bankruptcy. They have no standing on the ground that they weren't properly noticed.

[AngelinaCatHub]

JB, isn't the award a 'statutory' amount that must be paid per count? If so, you could get your money back in fees and time. That would be nice.

As per "Brazzy" remark, for what I know now, and my simple bk, made a nightmare by my ignorance, I sure would have trusted myself pro se' far above the piece of meat we had called a lawyer. We had no idea, but a little bit of education goes a long way.

Too bad we were not broke enough to file pro se'. "Ignorance is NOT bliss". Also too bad we had not read this site before. However, experience makes you wiser. Age makes you older. 'Hub

[justbroke]

JB, isn't the award a 'statutory' amount that must be paid per count? If so, you could get your money back in fees and time. That would be nice.

Well, that's one of those things that it will test. Whether a pro se debtor can count lost wages and other costs to prosecute the complaint, as damages. I will argue that even though I took a vacation day to attend a hearing or the trial, that constitutes "lost wages". (I have seen that counted as lost wages in a few other cases, since you lose your actual vacation.)

My counts do not claim anything under FDCPA, FUTP (Florida Unfair Trade Practices) or TILA or anything else related to deceptive or unfair practices. These are all violations of BK law.

[tigergem]

Keep us posted, dude. I have utmost confidence in you.

[Brazzy]

Prepare the complaint thoroughly and you wont have to "argue" a thing.

[Goldfish]

Hi JB et. al.

The correspondence here is so rich, that it prompts many questions but I will only comment on a couple of things right now.

I'm not sure why you would not enter a claim under deceptive or unfair practices. Not following well on this. Are you saying that to accuse them under such laws (statutes, whatever) would be to be saying "they violated BK law"? And that that would engage you in a vastly more difficult enterprise to win? One no serious lawyer would bother with?
I really don't know why this doesn't at least count as an "unfair Practice"-- It truly is unfair. It's an absolute menace and must be disposed of.
How does it really affect anything though? The nuisance phone calls can be avoided, the mail from them can go unopened. Credit report?
Is it that when your case is closed this will be resolved?
What are they waiting for? What do they have to gain? How would a credit repair type place (or related lawyer) get them to stop this. There must be ways. Are they just vindictive?
Only issue then: Which way is the most time-efficient and cost-effective way to stop them?

I do want to mention 3 lawsuits (wherein I'm plaintiff) which I originally listed in my BK petition which I then dropped (upon advice from a couple of Public Counsel people). It is one unresolved issue for me and I'll open another thread.

I'll add a couple of other quick blurbs --
With regard to the treatment of pro se's, as being ignorant etc., I would think of the situation in three terms.
A. Least significantly, I would try to understand the historical context in which the typical pro se filer filed. Were they e.g. typically ignornant and too poor to hire an attorney?
B. I appreciate so much what Brazzy said about the Courts impatience/intolerance of people ignorant of the bk law. There is nothing worse than having to repeat onesself a zillion times (I know this from teaching.)
C. That brings us to having to bear in mind the current state of the economy. These guys (courts?) are so inundated that they are probably overworked as are many others-- postal service, Fed. Exp., etc.

Thank you so much for sharing your joint experiences. gf

[tigergem]

Hi JB et. al.

The correspondence here is so rich, that it prompts many questions but I will only comment on a couple of things right now.

I'm not sure why you would not enter a claim under deceptive or unfair practices. Not following well on this. Are you saying that to accuse them under such laws (statutes, whatever) would be to be saying "they violated BK law"? And that that would engage you in a vastly more difficult enterprise to win? One no serious lawyer would bother with?
I really don't know why this doesn't at least count as an "unfair Practice"-- It truly is unfair. It's an absolute menace and must be disposed of.
How does it really affect anything though? The nuisance phone calls can be avoided, the mail from them can go unopened. Credit report?
Is it that when your case is closed this will be resolved?
What are they waiting for? What do they have to gain? How would a credit repair type place (or related lawyer) get them to stop this. There must be ways. Are they just vindictive?
Only issue then: Which way is the most time-efficient and cost-effective way to stop them?

I do want to mention 3 lawsuits (wherein I'm plaintiff) which I originally listed in my BK petition which I then dropped (upon advice from a couple of Public Counsel people). It is one unresolved issue for me and I'll open another thread.

I'll add a couple of other quick blurbs --
With regard to the treatment of pro se's, as being ignorant etc., I would think of the situation in three terms.
A. Least significantly, I would try to understand the historical context in which the typical pro se filer filed. Were they e.g. typically ignornant and too poor to hire an attorney?
B. I appreciate so much what Brazzy said about the Courts impatience/intolerance of people ignorant of the bk law. There is nothing worse than having to repeat onesself a zillion times (I know this from teaching.)
C. That brings us to having to bear in mind the current state of the economy. These guys (courts?) are so inundated that they are probably overworked as are many others-- postal service, Fed. Exp., etc.

Thank you so much for sharing your joint experiences. gf

Hey gf.

This isn't about jb's credit report. This is about a creditor violating the automatic stay imposed by the bankruptcy filing, which is significantly more of an infraction than FDCPA or FCRA violations.

Most failures on the part of pro se filers are caused by inability or unwillingness to learn and understand and implement FRBP and LRBP. All of the information you need is available, but people don't know how to make use of it... don't know how to use google, much less make heads or tails out of statutes and case law. I read somewhere once that a pretty high percentage of the American population really only reads at about 5th grade level. So that is probably where the problem actually stems from.

And yeah, I can totally see why the judges and trustees get frustrated with pro se filers.

And PS: Credit repair agencies are crap. Stay away from them.