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Fritz
Fritz, Attorney
Category: Bankruptcy Law
Satisfied Customers: 302
Experience:  Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
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this has to do with the mod packets thread on 6/28/12 but i

Resolved Question:

this has to do with the mod packets thread on 6/28/12 but i dont know how to add to it, I wrote it yesterday I think, but you didnt see it:
I read that case thx. However on the day of the sale they say, postponed d/t bk. yet this am at 8, 8:30, and 915 investors rang my bell. I'm so tired from these past two mornings. I am a night person and go to bed around 5 or 6 am. They are relentless with the door bell and I didn't answer the 915 bell and as I was in bed I heard this kid jumping my fence. I went out back cussed at him and he ran and jumped back over. By the time I got my camera I only got pic of truck. They are listing it on foreclosureradar.com, priority. Posting. .com and other sites, and they say it's public info. Since its not a newspaper "publishing" is THAT a willful violation of stay? I have asked them not to post it and they say there are a lot. Of scammers out there and they didn't post it, yet there name and contact numbers show as the ones posting the sale. Do those Internet sites constitute publishing the sale or is the publishing limited to newspapers for the violation?
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  Fran-mod replied 2 years ago.
Hi, I’m a moderator for this topic and I wonder whether you’re still waiting for an answer. If you are, please let me know and I will do my best to find a professional to assist you right away. If not, feel free to let me know and I will cancel this question for you. Thank you!
Customer: replied 2 years ago.
Yes I listed this under the thread for fritz. Still waiting and I'm terribly confused, I've rated all answers as far as I can see but he keeps emailing me to rate his answer. I've spent an hour going through them all and I think they are all rated
Customer: replied 2 years ago.
Yes waiting for answer from Fritz
Expert:  Fran-mod replied 2 years ago.
Sometimes, finding the right Expert can take a little longer than expected and we thank you greatly for your understanding. We’ll be in touch again shortly.
Expert:  Fritz replied 2 years ago.

It might be advisable to file a Motion for Contempt and Sanctions for Violations of the Automatic Stay, attaching all of the relevant documentation you can find (i.e. any advertisements online or in the paper). The bankruptcy judge can determine whether the lender has committed violations of the automatic stay (as opposed to unrelated third parties). You're not guaranteed to win, but it certainly sounds like you have good cause to bring the Motion at this point.

Fritz, Attorney
Category: Bankruptcy Law
Satisfied Customers: 302
Experience: Florida attorney with extensive experience in Chapter 7 and Chapter 13 consumer bankruptcy cases
Fritz and 3 other Bankruptcy Law Specialists are ready to help you
Customer: replied 2 years ago.
would the substitute trustee be a 3rd party? They told me that they only do what the lender tells them to do. So they did it, but they would not have done it had the lender not told them. And...they sent me 2 loan mod packets after I already had 4 and told them not to send anymore. Before sending the 2nd after filing BK, I explicity told my appointed person not to send anymore loan mod packets until they send what I am asking for and that it made me mad. 3 days later, I received another loan mod packet. I know it was done just to antagonize me because i was so mad when i said not to send them anymore. I only have printouts from foreclosureradar.com and cards from investors and pictures of the investors who rang my bell waking me up, going in my yard, and bothering me, telling me, "you know, as soon as the bankruptcy is over, they are going to foreclose on you." They said it wasn't listed as postponed due to bk; otherwise they said they wouldnt have come because they are not allowed to
Expert:  Fritz replied 2 years ago.

"Would the substitute trustee be a 3rd party? They told me that they only do what the lender tells them to do."

Yes, the substitute trustee in the foreclosure proceeding would likely be violating the automatic stay by continuing with the foreclosure when they know you are in an active bankruptcy. If the lender wants to continue with the foreclosure while you are still in bankruptcy, the lender must file a Motion for Relief from Stay and have that Motion granted at a bankruptcy court hearing. Without this, no one from the bank or its affiliates should be in your yard talking to you (or communicating with you at all, for that matter). Everything you mention (sending multiple loan mod packets post-petition, advertising the foreclosure sale, apparently threatening to hold the sale despite your active bankruptcy, etc.) could all easily be considered violations of the automatic stay.

Here's a California case that may help inform you as to the legal standard you would need to argue in front of the Bankruptcy judge. The facts are somewhat different than in your case, but pay careful attention to the section discussing "willful" violations (starting on page 11), as this is very generally how you would want to frame the argument so you could potentially recover damages:

http://www.canb.uscourts.gov/files/kaufmanstaydecAMENDED.pdf

Customer: replied 2 years ago.
THANK you so much. I have read many cases however where I am stuck is that when I had called so angry the first time to Trustee that published it, he denied it saying there a bunch of people out there putting things online. However I have printed proof as I said. here is where i am really stuck, the damages are lost sleep, major anxiety and stress and needing to drive to courthouse to be sure (because Trustees phone number is XXXXX disconnected with no forwarding number, but now i have new # XXXXX investors that rang my bell so early and all day 5 months in a row. But I don't know how to quantify my sanctions/emotional distress and "punitive damage awards not be grossly excessive or arbitrary." Any suggestions here?
Expert:  Fritz replied 2 years ago.

Here's an informative article discussing damages for violations of the automatic stay:

http://journal.abi.org/sites/default/files/2011/june/consumer.pdf

Expert:  Fritz replied 2 years ago.

Ultimately, the Bankruptcy Court would likely determine the amount of damages that you can sufficiently document and prove (via medical evidence or testimony of family or friends). The Kaufman case I cited above awarded punitive damages of 4x compensatory damages for highly egregious stay violations (i.e. stealing all of Ms. Kaufman's valuable personal property and selling it for profit), so that would seem to be roughly the outer limit of what a Court would award for egregious stay violations (although generally speaking, a Court CAN award up to 10x actual damages or so).

I may have linked to this case on another thread, but it's a California 9th Circuit case discussing the emotional damages issues at length. See In re Dawson, linked here:

http://scholar.google.com/scholar_case?case=11421097793397543959&q=in+re+dawson&hl=en&as_sdt=2,10

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