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socrateaser
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33543
Experience:  Attorney and Real Estate Broker -- Retired (mostly)
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TO SOCRATES ONLY: If I was to draft a motion for an adversary

Resolved Question:

TO SOCRATES ONLY:

If I was to draft a motion for an adversary proceeding in BK court, could you review it ?
Submitted: 10 months ago.
Category: Bankruptcy Law
Expert:  socrateaser replied 10 months ago.
Yes. Please upload the draft to www.mediafire.com and provide an http link in your next reply.

Thanks for your confidence.
Customer: replied 10 months ago.

These are entries on my credit report. Do any of these entries constitute a stay violation ?


 


 


http://www.mediafire.com/folder/2ngbieewf2wjl/Documents

Expert:  socrateaser replied 10 months ago.
The issue of whether or not a particular credit report entry represents a violation of the discharge injunction, cannot be determined in any absolute fashion. Each creditor act must be viewed on its own merits.

Also, there is no absolute consensus throughout the 11 Federal circuits as to what acts violate the discharge injunction. Consequently, a debtor must look to the case law precedent in the federal circuit where the debtor filed bankruptcy. My impression is that you are located in Texas.

In the case of In re Mahoney, 368 BR 579 (USBC WD TX 2007), the U.S. Bankruptcy Court for the Western District of Texas writes that it is the "coercive impact" on a debtor that determines whether or not a creditors actions amount to a violation of the bankruptcy discharge injunction. For example, if a creditor merely continues to report an account as delinquent during the period in which it was originally supposed to be paid, that by itself may or may not have a coercive impact on the debtor's likelihood of repaying the debt.

On the other hand, the sale of the debt to a debt collector after the bankruptcy injunction is entered, is an act to collect a debt, and the subsequent report of the debt collector on the debtor's credit report, while by itself, meaningless, is evidence of the continuation of collection activities.

It seems to me that this case law leaves much to be desired, but it also creates a possibility to be exploited. Suppose that a debtor, after reviewing his/her credit report and finding a continuing entry of delinquent reports, were to contact the debt collector or creditor and ask, "What do I have to do to get you to stop reporting me as delinquent?"

If the creditor's response is, "Pay the debt," then Baddaboom! The debtor has evidence that the creditor or debt collector is attempting to collect on a discharged debt, which violates the discharge injunction. Thus, it is not the credit report entry by itself that violates the injunction -- but rather the act that follows -- in my example, the reply letter.

This should provide you with some idea of how to approach the situation.

Hope this helps.
socrateaser, Attorney
Category: Bankruptcy Law
Satisfied Customers: 33543
Experience: Attorney and Real Estate Broker -- Retired (mostly)
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