Thanks. Your advice is well taken and appreciated! 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.
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
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.
Attorney for Plaintiff/Debtor