Make Sure Your Bankruptcy Attorney Is Willing to Defend the Automatic Stay

Our San Jose Bankruptcy Attorneys Defend the Automatic StaySome creditors just don’t get it. They just keep calling and harassing you with demand letters even after you have filed bankruptcy. Sure, the Automatic Stay contained in Bankruptcy Code section 362 is supposed to prevent creditors from continuing with all such collection efforts, but whether due to reckless disregard for bankruptcy law, pure sloppiness, or stubborn willfulness, some creditors just keep right on calling. But that’s a violation of a federal court order, you say, indignantly!

Yes, it is. But the Bankruptcy Court has no idea this is going on unless your bankruptcy attorney is willing and able to do something about it. Sadly, not all self-styled bankruptcy lawyers these days have much experience in what to do to defend and enforce the Automatic Stay for their clients. So, before hiring a bankruptcy attorney, you should ask him or her bluntly: What will you do if one of my creditors keeps up their collection efforts against me after we file bankruptcy?

The bankruptcy attorney should have in place systems to deal with such violations of the Automatic Stay. Of course, he or she won’t know such violations are happening unless you inform your attorney about the calls, letters, or other creditor harassment. It’s critical that you help your bankruptcy lawyer to ensure that all of your creditors are listed in your bankruptcy petition as well so that they get notice from the court that you have filed. While we primarily rely on our clients’ credit reports to obtain the names, addresses, and account numbers of our clients’ creditors, the client must likewise supplement this information with any additional known creditors—such as third party collection agencies who may have only recently purchased a debt—by carefully reviewing the credit report that we pull for the client, and giving us such other statements, bills, and lawsuits that the client may possess before we file the bankruptcy petition.

If he or she is to protect you from further creditor harassment in your bankruptcy, your attorney will also need you to keep logs of phone calls, including dates, times, and the phone numbers of those calling after you file bankruptcy. Any bill, statement, or demand letter you receive should also be promptly given to your attorney.

Now, assuming that you help your bankruptcy attorney by ensuring a complete list of creditors appears in your petition, and by informing him of all violations of the Automatic Stay, your attorney should be ready to aggressively defend the Court’s order that such collections stop. She should be ready to review the known addresses of the creditor, immediately send out cease and desist letters to that creditor, inform the United States Trustee of such violations, and, if necessary, sue that creditor in Bankruptcy Court.

The U.S. Trustee’s Office in San Jose does take action against creditors for egregious violations of the Automatic Stay, but here again, the US Trustee’s Office only knows about such violations to the extent that bankruptcy debtors and their attorneys inform them about them. After ensuring that the creditor has been warned not to continue with its harassment, we will always file an adversary proceeding against the creditor seeking injunctive relief against the creditor, monetary damages, attorneys’ fees, and sanctions for their contempt of the bankruptcy stay. Unless he or she is willing to follow through and enforce the Automatic Stay in this way, then you should find another bankruptcy attorney to file your case. Creditor violations of the stay are becoming more common, unfortunately, with some third party collection firms showing real contempt for the law and the Bankruptcy Court. Our San Jose bankruptcy attorneys take violations of the stay very seriously, and we have a long track record of recovering damages and settlements for our clients against big banks and credit card companies.

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