Starting a lawsuit during an open bk

[dbake]

What is the name of your state? Colorado

I filed for bankruptcy in Denver on June 29th. I included all of my debt and accurate addresses and account numbers. Yesterday evening, July 29th, I was served with a summons and complaint from Farrell & Seldin for a Sam's Club account. I called Sam's Club, and they said it was an error, that they have the bk recorded. They also sent notice to F&S to withdraw the case.

The thing is, F&S already knew of my bk, because they filed suit on another account and had been collecting from me every month on that. When they received notice of the bk, they filed a motion to dismiss w/o prejudice on the first account. But they still filed a new suit on the Sam's account.

I know they aren't allowed to file or continue a lawsuit, but what are the penalties since they did anyway?

My hearing for the bk is on August 5th. The summons from the new lawsuit is for August 10th. I left a message for F&S stating their error and asking to please correct it. Should I file an answer for the 10th, and if so will I have to pay the filing fee? Or should I just notify the judge in bk court and will that take care of things?

Learning the law as I go! Thanks

 

[bigun]

Do you have an attorney handling the bk?

 

[Ladynred]

I know they aren't allowed to file or continue a lawsuit, but what are the penalties since they did anyway?

If they did it deliberately, with full knowledge of your bankruptcy, then the bankrutpcy judge is more likely to smack 'em harder for their illegal activity than if they did it in error. You could file a Motion for Contempt and Request for Sanctions, and you can get back court costs, attorney's fees, and damages, if there are any that you can prove.

 

[anabanana]

Hmmm, let me get this straight, you've filed a BK to avoid paying off a legitimate debt that you have for stuff that you bought and got to use and keep; the creditor erroneously (or not, as you say) served you a lawsuit, then noted that they made a mistake and withdrew it, and now you want to know if you have to respond and whether there is some PENALTY you can invoke against them?

Hey, it's just a wild idea, but how about you just be satisfied that you're going to skate away without having to be responsible for the cost of all that stuff you bought? They're not harassing you, for chrissakes. Don't gum up the works. No, you don't have to file an answer, and if you did, there's no fee for filing an answer. Sheesh.

 

[dbake]

wait & thanks

Hmmm, let me get this straight, you've filed a BK to avoid paying off a legitimate debt that you have for stuff that you bought and got to use and keep; the creditor erroneously (or not, as you say) served you a lawsuit, then noted that they made a mistake and withdrew it, and now you want to know if you have to respond and whether there is some PENALTY you can invoke against them?

Hey, it's just a wild idea, but how about you just be satisfied that you're going to skate away without having to be responsible for the cost of all that stuff you bought? They're not harassing you, for chrissakes. Don't gum up the works. No, you don't have to file an answer, and if you did, there's no fee for filing an answer. Sheesh.

Actually, anabanana, the only thing I am "skating away" with is a restraining order against the man who stole my credit cards while we were dating. I tried taking this man to court to redeem my credit, but to no avail, for the only assets he had are fully in his new wife's name, and he sold the tools he bought from Lowe's and Sam's on my credit.

While in the process of trying to get things righted the legal way with this person, the companies started harrassing me. I sent what I could each month, and also sent copies of the restraining order and an admission letter from him that ended with his words "they can't come after me because my ssn isn't involved. Face it I screwed you good."

The companies weren't happy with what I could do, even though I was giving them so much that it was taking food off my daughter's plate. So they started to sue me. I talked to my minister many times and he counseled me into bk. As a result of the bk, F&S dropped one case I had previously settled on, then F&S proceeded to open a new case with a second company after dropping the first.

I am not trying to come off as a whining helpless little victim. On the contrary, I am doing everything in my power to be a strong woman and fight for my and my daughter's well-being. Let's just say I put myself through 4 years of college as a single parent without a drop of assistance from anything from welfare to family, I refuse to be a charity case or a whiner. I apologize if I this sounds snotty, I just think that I may have been misunderstood.

I do appreciate your letting me know there is no filing fee to file an answer. I will have to check on this with Jefferson County, because I was charged a fee when I filed an answer for the first case that was settled on.

If they did it deliberately, with full knowledge of your bankruptcy, then the bankrutpcy judge is more likely to smack 'em harder for their illegal activity than if they did it in error. You could file a Motion for Contempt and Request for Sanctions, and you can get back court costs, attorney's fees, and damages, if there are any that you can prove.

Ladynred, Thanks a bunch! Like I told my trustee, I am educated, but not in law; I may not know every piece of the law, but I understand perfectly those pieces that are brought to my attention. Thank you, this was a most educating piece of information. I highly appreciate it.

 

[dbake]

Do you have an attorney handling the bk?

No, I do not at the moment, but my mother reminded me that since I am a member of NEA and CEA, I can get an attorney through them if I need one. I was able to muddle through the bk filing papers just fine, they were pretty straight forward (if you have a decent reading level).

Would you recommend that I pursue filing a motion against F&S? Because if so, then I should get a lawyer for that.

Thank you for your question, it got me thinking more clearly!

 

[bigun]

I'd give 'em a chance to correct it first by promptly filing a motion to dismiss with prejudice.
To give them a little incentive mention you intend to file a complaint with the state bar association as well as ask the bk court for sanctions.

 

[tommy 522]

You hang in their! dont let some bill collector like Anabana get you down! Dont take s _ _ _ from the collector's , if they filed suite on you and are in the wrong go after them ! They did you, didnt they? The more pressure we put on the collectors when they are wrong maybe they will clean up their act.
Yes do file on them with BK and state bar association, if it don't help you at least it may help someone else from their disregard of the law and rules! Always Always go by Lady in Red's advice she wont steer you wrong or put you down!!! she will ask questions bedore responding and wont put you down like some of the other bill collectors on here . she went through hard times judt like us! my BK was over the great state of KY refusing to accomidate my disibility and would not let me return to work! GOOD LUCK

 

[anabanana]

Tommy, go pound sand. I read through all your posts and you've already been bashed from pillar to post, so I won't take your uninformed, misguided name-calling personally. I hope things are getting better for you.

dbake--Yep, I put my foot in that one. I just get pretty sick of people who DO go around with their victim hat on after running up a bunch of charges and getting all offended that someone expects them to make good on them. I daresay I've sat through more BK hearings than most anyone around here outside the bankruptcy bar, and I've seen a lot of tragic stories like yours. But I've seen a lot of crybabies who want to slither away, too. And they're usually the ones who want to stick it to their creditors for any procedural infraction, whether or not they're prejudiced by it in any way. If they happened to be creditors, they'd be doing the same crap to the hapless debtor. Jerks is jerks. And you apparently are not, so I'll eat a little crow on your behalf.

Also, the amount of sanctions is sort of up to the judge. If you can show you were harmed in some way, that you had to spend time to resolve the issue, missed work, etc., that also would make him more likely to find for sanctions. But the fact that they backed off right away will probably cover them, unless the judge wants to make a point. And I'd caution you against trying to smack them just to make a point your own self. It becomes a consuming obsession, and there is no justice to be had, so it eventually becomes really heartbreaking.

And like Tommy says, hang in there. Eat right and get plenty of rest, and stay away from alcohol, because if you don't take countermeasures, the stress will tear ya down and the bitterness will eat you up.

 

[AttorneyOney]

If they did it deliberately, with full knowledge of your bankruptcy, then the bankrutpcy judge is more likely to smack 'em harder for their illegal activity than if they did it in error. You could file a Motion for Contempt and Request for Sanctions, and you can get back court costs, attorney's fees, and damages, if there are any that you can prove.

OP needs to ask a bankruptcy attorney how to do this in Colorado. In my state, we file an adversary proceeding seeking damages under section 362(h) [soon to be 362(k)] of the Bankruptcy Code. A contested matter commenced by a motion won't do. A court clerk is not allowed to answer questions about how to proceed because giving advice about what procedure is proper is considered practicing law.

Also, bankruptcy judges differ greatly in how they deal with technical stay violations that don't cause actual harm. A local bankruptcy attorney will understand her particular judge's approach to these matters. What may have happened is that the creditor's computer system isn't setup to deal with bankrupt debtors who have more than one account. That's their problem, and we've got a judge here who would equate that with "my dog ate my homework", but her mileage will vary.

 

[dbake]

wrong party at fault

I received a call yesterday from the sheriff's office. They were calling to apologize for the confusion. Turns out the collection agency filed the motion and gave the papers to the sheriff two days before I filed. Then, the morning after I filed, the collector filed a motion to dismiss and gave that to the sheriff. The sheriff was not supposed to serve anything, as the collector had put the motion to dismiss to me in the mail.

Look at that all that worrying for nothing! No, I take that back, I found this advice forum, which was a good thing! One more thing to add to my list of positive stress relievers - going to church, eating healthy, laughing with friends, and playing ground crew for a hot air ballooning company! Just need to make sure to keep the loser con-artist to follow the restraining order!

Hangin' in there!

 

[newbedford]

anabanana is a complete A hole

Tommy, go pound sand. I read through all your posts and you've already been bashed from pillar to post, so I won't take your uninformed, misguided name-calling personally. I hope things are getting better for you.

dbake--Yep, I put my foot in that one. I just get pretty sick of people who DO go around with their victim hat on after running up a bunch of charges and getting all offended that someone expects them to make good on them. I daresay I've sat through more BK hearings than most anyone around here outside the bankruptcy bar, and I've seen a lot of tragic stories like yours. But I've seen a lot of crybabies who want to slither away, too. And they're usually the ones who want to stick it to their creditors for any procedural infraction, whether or not they're prejudiced by it in any way. If they happened to be creditors, they'd be doing the same crap to the hapless debtor. Jerks is jerks. And you apparently are not, so I'll eat a little crow on your behalf.

Also, the amount of sanctions is sort of up to the judge. If you can show you were harmed in some way, that you had to spend time to resolve the issue, missed work, etc., that also would make him more likely to find for sanctions. But the fact that they backed off right away will probably cover them, unless the judge wants to make a point. And I'd caution you against trying to smack them just to make a point your own self. It becomes a consuming obsession, and there is no justice to be had, so it eventually becomes really heartbreaking.

And like Tommy says, hang in there. Eat right and get plenty of rest, and stay away from alcohol, because if you don't take countermeasures, the stress will tear ya down and the bitterness will eat you up.

After reading anabanana comments this poster comes across as a real jerk.

 

[You Are Guilty]

6 years?!?

That's gotta be some kind of record.

 

[racer72]

Nah, we just had someone necropost on a 10 year old thread. anabanana hasn't posted to this site in 3½ years and will never get to know that he/she has a fan.