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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12819
Experience:  B.A.; M.B.A.; J.D.
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I am currently in a Chapter 13 BK with Central California Court.

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I am currently in a Chapter 13 BK with Central California Court. I rent my home, (the court is aware of this). A past tenant wants more of his deposit back and says he is going to sue me via email, though I have not been served. He says he is going to serve me in Civil Court. Does he have to go through the BK court? Can he serve me through registered mail?
Also he is sending me emails demanding his money. and threatening he will ruin my reputation. Does he have to cease?

How do I handle this?
Thank you
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.



I am currently in a Chapter 13 BK with Central California Court. I rent my home, (the court is aware of this). A past tenant wants more of his deposit back and says he is going to sue me via email, though I have not been served. He says he is going to serve me in Civil Court. Does he have to go through the BK court? Can he serve me through registered mail?
Also he is sending me emails demanding his money. and threatening he will ruin my reputation. Does he have to cease?

How do I handle this?
Thank you




Response: Your former Tenant is in violation of the Automatic Stay. He is not supposed to send you correspondence regarding additional deposit without first obtaining permission from the Bankruptcy Court. His correspondence is an attempt to collect a debt. This means that he must first file Motion for Relief from the Automatic Stay and get his Motion granted by the Bankruptcy Court before filing any lawsuit in the State Court. So, you should send him a formal notice that his mere correspondence to you about additional deposit is in violation of Automatic Stay and if he does not stop immediately from threatening you, that you would have no choice but to file Complaint for Violation of the Automatic Stay against him with the Bankruptcy Court. See 11 U.S.C. Section 362 especially subsections (k). Incidentally, the State Court would not have any jurisdiction to hear the case if he has not obtained prior authorization from the Bankruptcy for the lawsuit. You would ask the Court to dismiss the case because you have bankruptcy case pending.

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


As for service on you, that is quite moot because he cannot file lawsuit at the State Court without going to the Bankruptcy Court first. Nevertheless, Service of Process is quite complicated. For instance, “Service by Mail” is allowed. However, the documents must be mailed by a third party such as a process server in order to be valid. For more information, click on the link below. In any event and because you are in a Chapter 13 where you are making payments to other creditors, the State Court would tell him to go to the Bankruptcy Court for relief even he obtains the permission of the Bankruptcy Court before filing the lawsuit.




http://www.courts.ca.gov/selfhelp-serving.htm

Phillips Esq., Attorney-at-Law
Category: Bankruptcy Law
Satisfied Customers: 12819
Experience: B.A.; M.B.A.; J.D.
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