The two most powerful tools in the bankruptcy code are the bankruptcy discharge and the automatic stay. U.S. bankruptcy law defines the automatic stay as an automatic injunction that halts actions by creditors, with certain exceptions, to collect debts from an individual who has declared bankruptcy. Under section 362 of the United States Bankruptcy Code, the “stay” begins at the moment the bankruptcy petition is filed.
Automatic stay violations can be accidental or deliberate. Most of the time, it is the result of timing issues or lack of understanding of the law. When a bankruptcy case is filed, the automatic stay goes into effect immediately, but sometimes it can take a week or more for the creditor to find out about the case.
When timing is of the essence- for example, when trying to prevent a foreclosure from taking place, it is of extreme importance your attorney notify that particular creditor immediately after the case is filed.
It is not unlikely that you will continue receiving phone calls, collection letters or statements demanding payment in the mail. Even though these are violations of the automatic stay, in these situations it is best to direct all calls to your attorney. To prove the violation, you will have to show the court that the creditor acted willfully (i.e. – the creditor must know that the action it is taking is prohibited.)
We advise our clients to keep their filing information readily available, so they can provide the case number, name of the court in which the case is being filed, etc. to creditors who continue to call. If this is documented, and the calls continue, the creditors can be held accountable for violating the bankruptcy automatic stay.
Penalties for Violating the Automatic Stay
The penalties for violating the automatic stay depend on the nature of the violation and whether it was done with deliberate disregard for the bankruptcy filing. Damages can include out-of-pocket costs (e.g. – renting a vehicle to get to work if your car was repossessed); it can also include attorney’s fees and costs for having to bring the motion before the court, and even pain, suffering and mental anguish.
Our firm works to hold creditors accountable for violating the protections allotted by the U.S. bankruptcy laws. Just last month, our firm’s motion was granted by a Florida judge in a case that held the creditor in contempt of court for violating the automatic stay in a Miami bankruptcy case. The Order directed the creditor to cease and desist all eviction proceedings until further order of the court. The creditor in this case was also required to pay attorneys’ fees for our firm having to bring forth the motion to enforce the automatic stay to protect our client.
If you are dealing with a creditor you think may have violated the automatic stay, contact your attorney immediately. An experienced Miami bankruptcy attorney will know whether the contact was innocent in nature or a willful violation worth pursuing.
If you have any questions on this topic or are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade Garcia McMaken has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade Garcia McMaken website at www.miamibankruptcy.com.