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Paul K, Esq.
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience:  10 years Exp., Great customer service, Prompt responses.
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Ive been unable to find a lawyer who will rep me in filing

Resolved Question:

I've been unable to find a lawyer who will rep me in filing a suit against some of my creditors for violating the automatic stay in a CH13 proceeding.

In response to a letter I sent to the court outlining the violations, the judge, however, sent me the forms and instructions on how to file an adversary proceeding myself, mostly because I am pro se in the CH13 itself.

I've successfully handled the CH13 myself and it is nearing confirmation. How much more difficult would handling the Adversary Proceeding be ?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Paul K, Esq. replied 1 year ago.

Paul K, Esq. :

Hello, my name is XXXXX XXXXX I would love to assist you. Give me a moment to research your issue and I will answer promptly.

Paul K, Esq. :

FIling an adversary works, but I have accomplished the same thing often without one.

Paul K, Esq. :

If you file a motion and have a hearing, you can accomplish the same goals. File a Motion Titled:


MOTION FOR AN ORDER UPON [Coreditor] TO APPEAR AND
SHOW CAUSE WHY THEY SHOULD NOT BE HELD
IN CONTEMPT, FOR ACTUAL & PUNITIVE DAMAGES, AND
SANCTIONS

Paul K, Esq. :

Then File a notice of hearing and serve the creditor certified mail to their Vice-President and the Trustee

Paul K, Esq. :

The body would sound like this:

Paul K, Esq. :

Now comes [Your Name], the Debtor herein, and hereby moves this Honorable Court for an Order upon [Creditor] ,
to appear and show cause why they should not be held in contempt and sanctioned for their willful
violations of the automatic stay provisions of Section 362(a) of the Bankruptcy Code and 362(k) of
the Bankruptcy Code and for actual damages, attorneys’ fees, and punitive damages in the amount
of $40,000.00.

Paul K, Esq. :

Now you want to look up Section 362 and see which one applies to your facts, which is based on what the creditor did.

Paul K, Esq. :

Next do a Statement of Facts, where you lay out what happened

Paul K, Esq. :

Then say "Proceedings to determine whether the automatic stay has been violated are core proceedings that this Court may hear and determine. 28 U.S.C. §157(b)(1) and (b)(2)."

Paul K, Esq. :

Then quote the law:

Paul K, Esq. :

Section 362 of the Bankruptcy Code provides the following:
(a) Except as provided in subsection (b) of this section, a petition filed under section
301, 302, or 303 of this title ... operates as a stay, applicable to all entities, of--
...(3) any act to obtain possession of property of the estate or of property from
the estate or to exercise control over property of the estate;
(4) any act to create, perfect, or enforce any lien against property of the
estate;
(5) any act to create, perfect, or enforce against property of the debtor any lien
to the extent that such lien secures a claim that arose before the
commencement of the case under this title;
(6) any act to collect, assess, or recover a claim against the debtor that arose
before the commencement of the case under this title;
(k) (1) Except as provided in paragraph (2), an individual injured by any willful
violation of a stay provided by this section shall recover actual damages, including costs
and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.

Paul K, Esq. :

The explain that they clearly violated Section 362. Then explain how you were damaged by it, then state how much you want in damages.

Paul K, Esq. :

Then end it like this:

Paul K, Esq. :

WHEREFORE, [Your Name], the Debtor herein, respectfully XXXXX XXXXX this
Honorable Court issue an Order upon [Creditor] to appear
and show cause why they should not be held in contempt and sanctioned for its willful violations
of the automatic stay of Section 362(a) and 362(k) of the Bankruptcy Code and for actual
damages, attorneys’ fees, and punitive damages in the amount of $40,000.00,


and for such other and further relief as is just, including any additional
damages which the Debtor may incur from the date of the filing of this Motion through the date
of the hearing.

Paul K, Esq. :

If you have any other questions, please let me know.

Paul K, Esq. :

Also dont forget to provide a positive rating so that we get credit for this session.

Paul K, Esq. :

Thanks and have a great weekend!!!

Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you very much !
Customer: replied 1 year ago.
Should I wait until after my plan confirmation or go ahead with the motion you suggested ?
Expert:  Paul K, Esq. replied 1 year ago.
Stay violations can be filed at any time. The key is to make sure you have proof the creditor received notice. For example, if you sent a letter to them to warn to cease and desist contacting you due to the BK filing, attach it as an exhibit. You also want to make sure you detail what your damages are. You want to make sure they demonstrated "a callous disregard for the Bankruptcy process, Code, and the Court."

Good luck!
Customer: replied 1 year ago.
Are there guidelines for the amount of damages one might seek ? What types of harm might one claim ?
Expert:  Paul K, Esq. replied 1 year ago.
THere arent really guidelines for punitive damages. Just base it off what they did. If they just sent you a letter or two, ask for maybe $5k. If they called a bunch, were rude, sent letters, harassed you, etc, ask for $10k or $15k. I really just depends on the severity of what they did. As far as harm, it is up to you. Explain to the Court what they did and how it hurt you.

Good luck!!!
Customer: replied 1 year ago.
Is the court compelled to accept the motion you suggested as opposed to me filing an adversarial procedding ?
Expert:  Paul K, Esq. replied 1 year ago.
Quite often they accept it by Motion, each Judge is different and they change often, so you cant know what every judge would do, but it doesn't hurt to try. An Adv Pro has court costs and restrictions and deadlines, and is much harder. To do an Adv Pro you really want to make sure you do it right and that you have been damaged or else the creditor may just get a slap on the wrist and you are out time and money for the Adv Pro. The Motion, at least, is free.
Customer: replied 1 year ago.
Thanks again. XXXXX supposed to "Accept" each time you answer a follow-up question ?

May I attach a document for you to interpret for me ?
Expert:  Paul K, Esq. replied 1 year ago.
I think you do hit accept. For you to attach a document, list a new question and either attach it or copy and past into question. Then request me when you do it. List it sometime after 9:00am EST and I will be available to answer and review it. I do not know how the pricing goes, but I think they have it set up where a document review costs slightly more (as it is all based on the amount of time). This one probably ended up around $40.00, so you got a steal for $12.50!!!!

Have a great night!
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
"They" would be well served to make the process a little more clear. I fully recognize the value I have received through your thorough and detailed answers, but my membership is the "unlimited" monthly plan - the mechanics of which are not entirely clear.

I'll post the doc I mentioned momentarily. Do I need to redact anything ? I dont want my personal info winding up in some search engine.

Here's the message I got when I tried to accept this answer: "You have already accepted at least one answer. Confirming that you wish to accept another answer and pay the Expert an additional amount." (so, I did).
Expert:  Paul K, Esq. replied 1 year ago.
I would redact to be safe! It can be confusing at time and I will pass along your suggestions to "them." Haha. Have a good one!
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
A little background: The IRS filed a claim for unpaid taxes from 10+ years ago. They claimed that $3600 was secured of the $40+K. I objected. They filed a revised claim showing no secured amounts. I checked the 6a box on my plan proposal and they then filed this objection to my plan confirmation.graphicgraphicgraphicgraphic

It doesnt appear that the attachments will transmit. Is there a way to send them via private message ?
Expert:  Paul K, Esq. replied 1 year ago.
I think there is, but you could also possibly copy and paste the language into the fields and we can review it that way.

Thanks!
Customer: replied 1 year ago.
graphicgraphicgraphicgraphic
Expert:  Paul K, Esq. replied 1 year ago.
Ok, this is separate from the original question on stay violations, but I will try to answer. When you create a new issue we can type back and forth and chat, but since this is listed under the old question, I can only respond when they send me a notice of your new comment and I am limited somewhat in my ability to organize and answer as the answer box for newer questions is different than what we can use when the original question is done. So the point is that my paragraphs are going to be long and extended because the fields to type in are a bit different unfortunately.

So to answer your question, they are saying you are secured for 2002 only. The reason is, as they said, they have a valid statutory lien. Now the lien is only secured to the extent of your assets. So if on Schedule A, there is no equity for the IRS, then they arent secured there. On Schedule B, they are secured to the amount of assets with equity. So for example if you have $10k in total assets on B, with a $8k car loan, they are secured only to the $2k left over, regardless of exemptions. So add up any equity on A and B, then file a response that "The Debtor acknowledges that the IRS is secured for 2002 only, but only to the extent of any equity in the real and personal property on Schedule A and B of the petition. This amount totals $2k (in this example), so the 2002 statutory lien is secured in the amount of $2k and unsecured for the rest."
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
Ok. I'll submit a new question sent to your attention only.
Expert:  Paul K, Esq. replied 1 year ago.
Well if my last post answered everything, no need to relist. Thanks!!!!
Paul K, Esq., Attorney
Category: Bankruptcy Law
Satisfied Customers: 141
Experience: 10 years Exp., Great customer service, Prompt responses.
Paul K, Esq. and other Bankruptcy Law Specialists are ready to help you

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