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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12836
Experience:  B.A.; M.B.A.; J.D.
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I had a judgement against me and was summons for interrogatories

Customer Question

I had a judgement against me and was summons for interrogatories by the creditor (business debt - sued me individually). I showed up in court at the scheduled time for the interrogatories and presented a petition for Chapter 7. Opposing attorney asked to proceed with the interrogatories anyway because "she did all of this work....". Judge gave her a continuance.

341 meeting was today. No proof claim filed by any creditors (all unsecured debt). District Court still shows continuance for interrogatories to May 1. Chapter 7 case not scheduled to close until mid-may. Bankruptcy attorney is not sure if this is a violation of the bk court order but was surprised that there was a continuance.

I assume the DC judge granted a continuance pending the outcome of the bk case. What do I do now to end the "collection process of a judgement" and has the District Court and/or is the unsecured creditor in contempt of the bk order by re-scheduling or not withdrawing/canceling the continuance. Again, the creditor did not file a claim before today's 341 meeting and therefore, anything beyond this date would not be filed timely?
Submitted: 1 year ago.
Category: Bankruptcy Law
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.


Question: I had a judgement against me and was summons for interrogatories by the creditor (business debt - sued me individually). I showed up in court at the scheduled time for the interrogatories and presented a petition for Chapter 7. Opposing attorney asked to proceed with the interrogatories anyway because "she did all of this work....". Judge gave her a continuance.

341 meeting was today. No proof claim filed by any creditors (all unsecured debt). District Court still shows continuance for interrogatories to May 1. Chapter 7 case not scheduled to close until mid-may. Bankruptcy attorney is not sure if this is a violation of the bk court order but was surprised that there was a continuance.

I assume the DC judge granted a continuance pending the outcome of the bk case. What do I do now to end the "collection process of a judgement" and has the District Court and/or is the unsecured creditor in contempt of the bk order by re-scheduling or not withdrawing/canceling the continuance. Again, the creditor did not file a claim before today's 341 meeting and therefore, anything beyond this date would not be filed timely?


Response:
The creditor has 60 days from the conclusion of the Section 341 Meeting to file objection to the dischargeability of its debt. So, even if the creditor has not filed proof of claim, the creditor can still file Complaint Objecting to the Dischargeability of the debt. However, if the Objection is not filed within the deadline given on the notice of Section 341 Meeting, the creditor’s debt will be discharged with the rest of the debts if the bankruptcy Court issues a Discharge Order in your case and consequently your case in the District must thus be dismissed. You would send a copy of the Discharge Order to the District Court so that the case can be dismissed. Nonetheless, the continuance of the case by the District Court is a clear violation of the Bankruptcy Code's Automatic Stay unless the creditor has filed a Motion for Relief from the Automatic Stay for permission to continue with the District Court’s case and the Bankruptcy Court has granted the Motion. So, your bankruptcy Attorney or your Attorney in the District Court must inform the District Court that the District Court is in violation of the Automatic Stay, 11 U.S.C. Section 362 by continuing the case instead of suspending it pending the outcome of the bankruptcy case. Once you showed up at the scheduled time for “Interrogatories” with your notice of bankrupt case filing, all activities on the case MUST HAVE BEEN SUSPENDED pending the outcome of the case. It is painfully obvious that the opposing Counsel by insisting on moving forward with the “Interrogatories because "she did all of this work...." did (or still does not) not know that she was violating the Automatic Stay and you could have filed Complaint against the Attorney in the Bankruptcy Court for violation of the Automatic Stay and for sanctions. See 11 U.S.C. Section 362(k).


http://doney.net/bkcode/11usc0362.htm




Customer: replied 1 year ago.

So in reality my regular business attorney mis-informed me (not the bk attorney) as she told me to take the bk papers to the clerks office in the district court myself. I thought that was a bit odd.

 

Nevertheless, I let this go because the opposing attorney was pursuing a worthless business debt against me individually for a company I did not own but an employee and officer. It was all based on a credit application for a company (S-corp) that officially ceased operating prior to the initial lawsuit by this particular creditor. Thus I had two choice - to appeal or file bk. Obviously Bk made the most sense -- this was a construction/remodeling company/builder hit by the housing burst like all the rest. No company, no pay, no profits, no income to pay debt. Why don't these people get the real effect the recession had on small business owners in the residential construction industry????

 

At the interrogatories, I questioned the judge at the first hearing noting some of your points (i.e, that the bk notice should stop all proceedings pending the outcome). The opposing attorney actual said, "Your honor, I would still like to proceed with the interrogatories because I did all of this work." Not kidding! The judge then offered a continuance to her pending the outcome of the case. I couldn't believe it. When I questioned the court and the opposing attorney's intentions under oath, the judge stated that the proceeding may or may not go forward.

 

Can i still have my bk attorney file a complaint based on the fact that is still shows "continued" on the docket for May 1 -- bk case expected to end May 15. All I want is to be granted my rights under due process of the law -- which has been denied from start to finish in this case. Proving actual harm for another cause of action on my part is difficult to prove with factual evidence. That's the challenge. If I am understanding your answer correctly, I could now have a "cause of action" to file a legitimate complaint against the district court and the opposing attorney????

Expert:  Phillips Esq. replied 1 year ago.


Question: I had a judgement against me and was summons for interrogatories by the creditor (business debt - sued me individually). I showed up in court at the scheduled time for the interrogatories and presented a petition for Chapter 7. Opposing attorney asked to proceed with the interrogatories anyway because "she did all of this work....". Judge gave her a continuance.

341 meeting was today. No proof claim filed by any creditors (all unsecured debt). District Court still shows continuance for interrogatories to May 1. Chapter 7 case not scheduled to close until mid-may. Bankruptcy attorney is not sure if this is a violation of the bk court order but was surprised that there was a continuance.

I assume the DC judge granted a continuance pending the outcome of the bk case. What do I do now to end the "collection process of a judgement" and has the District Court and/or is the unsecured creditor in contempt of the bk order by re-scheduling or not withdrawing/canceling the continuance. Again, the creditor did not file a claim before today's 341 meeting and therefore, anything beyond this date would not be filed timely?


Response:
The creditor has 60 days from the conclusion of the Section 341 Meeting to file objection to the dischargeability of its debt. So, even if the creditor has not filed proof of claim, the creditor can still file Complaint Objecting to the Dischargeability of the debt. However, if the Objection is not filed within the deadline given on the notice of Section 341 Meeting, the creditor’s debt will be discharged with the rest of the debts if the bankruptcy Court issues a Discharge Order in your case and consequently your case in the District must thus be dismissed. You would send a copy of the Discharge Order to the District Court so that the case can be dismissed. Nonetheless, the continuance of the case by the District Court is a clear violation of the Bankruptcy Code's Automatic Stay unless the creditor has filed a Motion for Relief from the Automatic Stay for permission to continue with the District Court’s case and the Bankruptcy Court has granted the Motion. So, your bankruptcy Attorney or your Attorney in the District Court must inform the District Court that the District Court is in violation of the Automatic Stay, 11 U.S.C. Section 362 by continuing the case instead of suspending it pending the outcome of the bankruptcy case. Once you showed up at the scheduled time for “Interrogatories” with your notice of bankrupt case filing, all activities on the case MUST HAVE BEEN SUSPENDED pending the outcome of the case. It is painfully obvious that the opposing Counsel by insisting on moving forward with the “Interrogatories because "she did all of this work...." did (or still does not) not know that she was violating the Automatic Stay and you could have filed Complaint against the Attorney in the Bankruptcy Court for violation of the Automatic Stay and for sanctions. See 11 U.S.C. Section 362(k).


http://doney.net/bkcode/11usc0362.htm

(2)

So in reality my regular business attorney mis informed me as she told me to take the bk papers to the dc court myself. I let this go because the opposing attorney was pursuing a worthless business debt angainst me individually for a company I did not own but was an voting officer. It was all based on a credit application for the company for a company that officially ceased operating prior to the initial lawsuit. I questioned the judge at the first hearing noting some of your pints below. His response was that it may or may not move forward pendin the outcome of the bk. it is this entire matter that forced me to make the decision to file. I had the choice of appealing for a lot more dollars or file bk.

I just want to be heard and given my rights to sue process which I didn't get in the first plAce. I filed a motion to dismiss. It was denied and then the judge used my testimony and statements for the motion to dismiss as my defense. Here is the catch -- I was not given the opportunity to defense and the judge decided the entire case based on case law from 1862! No that is not a typo. The case law Imy attorney presented in the motion to dismiss was based on recent contract law!

so hopefully you can understand why I let this go to the 341 meeting as I wanted to make sure this attorney wasn't going to try to pull anore tricks. can I still Sk my bk attorney to file a citation against the attorney and district court?? we are amening some docs and following up with some items the trustee requested.

This has become a principle issue based on a matter of law.


Response
: I am sorry to hear that you were misinformed. However, the services that your Attorneys would provide including your bankruptcy Attorney would depend on your Fee Agreement and scope of services agreed to. For instance, if the Bankruptcy Attorney did not agree to file anything with the District Court, the bankruptcy Attorney does not have to provide a notice to the District Court about your bankruptcy filing. However, the Bankruptcy Attorney has ethical obligation to tell you what you should do to notify the District Court of your bankruptcy filing and hopefully of the issuance of a Discharge Order in the case. Nevertheless, the Attorney who is handling the case for you in the District Court must notify the District Court of your bankruptcy case, etc.


If the opposing Counsel is still trying to communicate with you regarding the case after being made aware of the bankruptcy filing, then you need to work with your bankruptcy Attorney on filing Complaint against the Attorney for the violation of the Automatic Stay. As for the District Court, regrettably, they would get off on technicality if the Court merely scheduled the case just in case the bankruptcy case is not successful. However, that is not really the proper way to do it. The proper way is to suspend all activities on the case—the case must be SUSPENDED. This means no hearing on the case can be scheduled until the conclusion of your bankruptcy case and most importantly the hearing on the case can only be rescheduled if you do not obtain a Discharge Order from the bankruptcy Court. If you do get a Discharge Order, the District Court case must be dismissed WITH PREJUDICE, meaning that the creditor CAN NEVER file the case again. Your Attorney in the District Court case must ask the District Court to SUSPEND THE CASE PENDING THE OUTCOME OF THE BANKRUPTCY CASE.


Customer: replied 1 year ago.

Ok, thanks. I actually updated my question because I typed from my iphone and it was riddled with typos.


 


I did not take my business attorney to the interrogatories with me. At that point, I could not justify racking up another $500 or more to have this attorney appear with me for something that I knew wasn't going to take place on that day. Obviously, I don't feel that my district court attorney acted in my best interest by allowing the court to hear only my motion to dismiss and not my defense. Note, I gave testimony first - the opposing attorney had a three-ring circus going on and put her witness on the stand to object to the motion to dismiss and proceeded with the full content of her case! I was not given the opportunity to provide any defense whatsoever or get back on the stand. Unfortunately, and in hind sight, my business attorney was in a situation where she did not have the proper experience and I was coaching her. This entire case is based on a credit application -- an ambiguous credit application and the service agreement itself. Further, the creditor was receiving regular payments up until the company ceased to exist, for which they were notified.


 


Can I still file a complaint against this opposing attorney for violation of the bk statue aside from asking the District Court to suspend the case pending the outcome of the bk.

Expert:  Phillips Esq. replied 1 year ago.

Ok, thanks. I actually updated my question because I typed from my iphone and it was riddled with typos.

I did not take my business attorney to the interrogatories with me. At that point, I could not justify racking up another $500 or more to have this attorney appear with me for something that I knew wasn't going to take place on that day. Obviously, I don't feel that my district court attorney acted in my best interest by allowing the court to hear only my motion to dismiss and not my defense. Note, I gave testimony first - the opposing attorney had a three-ring circus going on and put her witness on the stand to object to the motion to dismiss and proceeded with the full content of her case! I was not given the opportunity to provide any defense whatsoever or get back on the stand. Unfortunately, and in hind sight, my business attorney was in a situation where she did not have the proper experience and I was coaching her. This entire case is based on a credit application -- an ambiguous credit application and the service agreement itself. Further, the creditor was receiving regular payments up until the company ceased to exist, for which they were notified.

Can I still file a complaint against this opposing attorney for violation of the bk statue aside from asking the District Court to suspend the case pending the outcome of the bk.

Response: I am truly sorry to hear about your ordeal.

Yes, you can still file Complaint for willful violation of the Automatic Stay against the Attorney and her Client for pursuing a case in District Court knowing full well that your bankruptcy case is pending and thus the Automatic Stay is in full force and effect.

Customer: replied 1 year ago.

Thanks. Your advice is well taken and appreciated! Laughing This is what I thought all along but have had trouble placing the statues with the situation.


 


One last question, what "damages" do I have the right to seek. The statue is vague but provides for damages against the creditor and attorney for this type of violation. Has this caused me harm? Well, the entire case forced me to file for bankruptcy protection in the first place. Just not sure how to prove damages but clearly there is a violation of the federal statue here that I should be entitled to recover damages -- assuming I can produce clear and convincing evidence of such damage and support a cause of action for the complaint.


 


Also, for your information, I work daily with contracts and contract law. I know enough to be dangerous to help protect my clients when negotiating contracts on their behalf. This entire case has been going on now for over 18 months! It is/was a complete waste of judicial time and resources -- not to mention money on both sides.

Expert:  Phillips Esq. replied 1 year ago.

Thanks. Your advice is well taken and appreciated! LaughingThis is what I thought all along but have had trouble placing the statues with the situation.

One last question, what "damages" do I have the right to seek. The statue is vague but provides for damages against the creditor and attorney for this type of violation. Has this caused me harm? Well, the entire case forced me to file for bankruptcy protection in the first place. Just not sure how to prove damages but clearly there is a violation of the federal statue here that I should be entitled to recover damages -- assuming I can produce clear and convincing evidence of such damage and support a cause of action for the complaint.

Response 1: The damages would start from the time you showed up for the Interrogatories (Deposition?) and the Opposing Counsel wanted to continue. I would tabulate the time you and your Attorneys have spent since that time responding to the Opposing Counsel. Also, the time and effort expended to file the Adversary Proceeding (Complaint for Violation) including your Attorneys' fees.

Also, for your information, I work daily with contracts and contract law. I know enough to be dangerous to help protect my clients when negotiating contracts on their behalf. This entire case has been going on now for over 18 months! It is/was a complete waste of judicial time and resources -- not to mention money on both sides.

Response 2: You know what they say: Knowledge is power. The more you know, the better.

Below is a sample complaint, modify as appropriate. Goodluck with your case.

Complaint Seeking Damages for Violation of Automatic Stay

[Caption: Official Form 16D

Complaint

1. On August 21, 2012, the Plaintiff/Debtor commenced a voluntary case under chapter 7 of the Bankruptcy Code, by filing a petition which has been assigned No. [number] in this Court.

2. This Court has jurisdiction to hear this matter under 28 U.S.C. § 1334, because it arises in that case and is related to it. This proceeding is a core proceeding.

3. The Defendant was named in Schedule A-3 of the petition as a creditor without security or priority. The Defendant is a creditor of the Debtor by virtue of [describe debt].

4. The Defendant is also a creditor of the Debtor within the meaning of [cite provision(s) of state debt collection or unfair trade practices law].

5. On or around May 28, 2012, the undersigned counsel for the Debtor telephoned the Defendant and informed its agent and employee, Ms. [name], that the Debtor was represented by counsel, that counsel was attempting to assist the Debtor in making satisfactory arrangements with creditors, and that the Defendant was not to have any further contact with the Debtor directly.

6. On or about July 15, 2012, an agent or employee of the Defendant, whose name sounded to the Debtor like “Ms. [name]” telephoned the Debtor personally, attempting to collect her debt to the Defendant

7. An order for relief was entered in this case on August 21, 2012, pursuant to 11 U.S.C. § 301, thus triggering an automatic stay, pursuant to 11 U.S.C. § 362(a), of all debt collection against the Debtor.

8. On August 25, 2012, the undersigned counsel for the Debtor sent a first class letter to the Defendant, informing it of the filing of the petition and describing the provisions of section 362(a). A copy of that letter is attached hereto as Exhibit A [omitted], along with a return receipt showing receipt by Defendant

9. On September 10, 2012, the Defendant by its agent and employee, Ms. [name], sent a letter to the Debtor at her home address, a copy of which is attached as Exhibit B [omitted], attempting to collect the debt owing from the Debtor to the Defendant.

10. On September 12, 2012, at 3:00 P.M., Ms. [name] endeavored to collect the debt by telephoning the Debtor directly at her place of employment. Failing to reach her, she left the message: “Personal. Please call.”

11. At no time did any agent or employee of the Defendant communicate or attempt to communicate with the Debtor’s undersigned counsel, although the Defendant knew or had reason to know that the Debtor was represented by him as an attorney with respect to her debt, and the Defendant knew or could readily ascertain the address of the attorney.

WHEREFORE, the Plaintiff/Debtor prays that this Court will enter an Order:

a.Declaring the Defendant guilty of civil contempt by violating the automatic stay granted herein on August 21, 2012, for its actions on September 10 and 12, 2012

b.Declaring that the Defendant violated the rights of the Debtor as secured by [cite provision(s) of state law] by its actions on or about July 15, 2012, and September 10 and 12, 2012

c.Awarding the Plaintiff/Debtor damages in the amount of $500 for each violation, as provided in [cite provision(s) of state law]; and

d.Awarding the Plaintiff compensatory and punitive damages, plus attorney fees and costs pursuant to 11 U.S.C. § 362(k) and for contempt of Court; and

e.Granting such additional relief as it deems necessary or proper.

Date: [signature]

Attorney for Plaintiff/Debtor






Sample Captions:



http://www.uscourts.gov/uscourts/RulesAndPolicies/bkforms/official/b16d.pdf


http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_1207/B_016A_1207.pdf


Bankruptcy Forms:



http://www.uscourts.gov/FormsAndFees/Forms/BankruptcyForms.aspx

Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12836
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and other Bankruptcy Law Specialists are ready to help you
Customer: replied 1 year ago.
Yep! And in my line of work I was taught to "know the answer to the question before you ask". Sound familiar???
Like you, I consult on subject matter so this way if doing business is a must.

You have been very helpful and glad to know there are honest people like you out there! I will follow up again if I have more questions. This service is well worth the dollar spent. I expected a bit more run around like I've been getting. I knew in my heart of hearts these answers and my arguments overall is right on target but without the right representation one cannot be sure of the answer before asking the question
Expert:  Phillips Esq. replied 1 year ago.
You are quite Welcome and thank you very much for the positive rating!


I am here if you have further questions.


Best of luck with your case

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