Bankruptcy Law Questions? Ask a Bankruptcy Lawyer.
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.
FIling an adversary works, but I have accomplished the same thing often without one.
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 ANDSHOW CAUSE WHY THEY SHOULD NOT BE HELDIN CONTEMPT, FOR ACTUAL & PUNITIVE DAMAGES, ANDSANCTIONS
Then File a notice of hearing and serve the creditor certified mail to their Vice-President and the Trustee
The body would sound like this:
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 willfulviolations of the automatic stay provisions of Section 362(a) of the Bankruptcy Code and 362(k) ofthe Bankruptcy Code and for actual damages, attorneys’ fees, and punitive damages in the amountof $40,000.00.
Now you want to look up Section 362 and see which one applies to your facts, which is based on what the creditor did.
Next do a Statement of Facts, where you lay out what happened
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)."
Then quote the law:
Section 362 of the Bankruptcy Code provides the following:(a) Except as provided in subsection (b) of this section, a petition filed under section301, 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 fromthe estate or to exercise control over property of the estate;(4) any act to create, perfect, or enforce any lien against property of theestate;(5) any act to create, perfect, or enforce against property of the debtor any liento the extent that such lien secures a claim that arose before thecommencement of the case under this title;(6) any act to collect, assess, or recover a claim against the debtor that arosebefore the commencement of the case under this title;(k) (1) Except as provided in paragraph (2), an individual injured by any willfulviolation of a stay provided by this section shall recover actual damages, including costsand attorneys' fees, and, in appropriate circumstances, may recover punitive damages.
The explain that they clearly violated Section 362. Then explain how you were damaged by it, then state how much you want in damages.
Then end it like this:
WHEREFORE, [Your Name], the Debtor herein, respectfully XXXXX XXXXX thisHonorable Court issue an Order upon [Creditor] to appearand show cause why they should not be held in contempt and sanctioned for its willful violationsof the automatic stay of Section 362(a) and 362(k) of the Bankruptcy Code and for actualdamages, attorneys’ fees, and punitive damages in the amount of $40,000.00,
and for such other and further relief as is just, including any additionaldamages which the Debtor may incur from the date of the filing of this Motion through the dateof the hearing.
If you have any other questions, please let me know.
Also dont forget to provide a positive rating so that we get credit for this session.
Thanks and have a great weekend!!!