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Terry L.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2512
Experience:  Better Business Bur 15yrs bankruptcy experience. Chicago Bar
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I have a question about the automatic stay and a lawsuit Im

Resolved Question:

I have a question about the automatic stay and a lawsuit I'm filing.

I know someone is in bankruptcy, but I have very good reason to believe the case will be dismissed. Technically, an automatic stay is in effect. If I serve the summons and complaint knowing they are in bankruptcy is that any sort of violation of the stay?

Next, let's assume I serve the summons today. Let's also assume the bankruptcy gets dismissed next week. They have 20 days to respond to my complaint. Does the 20 days start the day the BK gets dismissed? I'm wondering if it's permissible to get the summons served and wait for the "clock to start" once the BK is dismissed.
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Terry L. replied 2 years ago.

Terry L. : Hi, thanks for your question. You should hire a lawyer for specific legal advice. No attorney client relationship is created here.
Terry L. : Yes, any action taken while the automatic stay is in place , even the filing of a suit is a violation. Until the stay is modified or the case is dismissed, that action is sanction able.
Terry L. : You should file only after the dismissal or stay modification.
Terry L. : I've seen sanctions or this type, even with a motion to dismiss, but the debtor gets the protection up until the end.
Terry L. : Best to hold out, monitor the case, then take action only father dismissal
Customer:

I will assume the debtor won't be filing a motion. So let's assume I'm okay to serve him without fear. Will the clock start only after the dismissal then? Does the state court ignore the fact I served him while in BK?

Customer:

I am only worried about what the state court will say. I have a motion approved for alternative service to post the summons and complaint on his door. I want to post the complaint on his door say tomorrow and then as soon as the BK is dismissed I want the clock to start ticking on the 20 days he has to respond. Is that a strategy that will backfire in state court?

Expert:  Joseph Scott replied 2 years ago.
After reading your question and Terry L's responses, Terry L is exactly correct. I would definitely advise you not to file the lawsuit because if the judge in your pending lawsuit finds out that the Defendant is in a bankruptcy, he will kick the case automatically. Then he/she may ask you if you knew he was in bankruptcy and you would have to say yes. The court does not find it funny when a plaintiff knowingly files a complaint against a defendant who is in bankruptcy. Your plan about serving him is not a good plan. You need to wait until his case is dismissed before you can file a lawsuit against him. Once the case is dismissed, then serve him your summons an complaint immediately, but do not do it before.

I hope that helps, let me know if you have any further questions.

My best,

J. Scott
Joseph Scott, Attorney
Category: Bankruptcy Law
Satisfied Customers: 171
Experience: I have practiced bankruptcy law for 10 years. Have handled hundreds of cases.
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Expert:  Terry L. replied 2 years ago.
Did you have any other questions?
If not, please click accept to close the question. Thanks and good luck
Expert:  Terry L. replied 2 years ago.
Do you have any other questions?

I am following up to see if you have any other questions. if so, reply, if not, click accept to close the answer!

Thanks, XXXXX XXXXX luck.
Terry L., Attorney
Category: Bankruptcy Law
Satisfied Customers: 2512
Experience: Better Business Bur 15yrs bankruptcy experience. Chicago Bar
Terry L. and other Bankruptcy Law Specialists are ready to help you

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