Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

IRS Found to Have Willfully Violated Bankruptcy Discharge, Ordered to Pay $175,000 in Damages

The Internal Revenue Service (IRS) has been found to have violated a bankruptcy discharge according to a recent decision by the First Circuit Court of Appeals. Despite the IRS’s argument that it acted under a good faith belief that it had the right to continue to collect debts that were otherwise discharged in a bankruptcy.

The matter was decided in the case of Internal Revenue Service v. Murphy, 65 Bankr.Ct.Dec. 195 (2018). In this case, Murphy had received a bankruptcy discharge in 2006. However, despite this discharge, the IRS still attempted to collect on the debt on the belief that his tax obligations were not discharged under 11 U.S.C. § 523(a)(1)(C). This code section allows an exception to discharge for any tax if the “debtor made a fraudulent return or willfully attempted to in any manner to evade or defeat such tax.”

Murphy fought back under Section 7433(e) of the Internal Revenue Code, which allows the individual filing bankruptcy to petition the bankruptcy court to recover damages against the U.S. when the IRS has willfully violated the automatic stay or the final bankruptcy discharge.

In its defense, the IRS argued that that Murphy filed a fraudulent tax return to evade or defeat a tax, they had a right to try to collect on the debt from that debtor.

The lower court found that the IRS failed to file an objection prior to the bankruptcy discharge, both before or appropriately after the order was entered. The IRS continued trying to collect on the debt. It got so severe as the IRS levying insurance companies that did prior business with Murphy. In response, Murphy pursued a proceeding in bankruptcy court to get an official declaration from the court that the taxes were discharged in the original order.

Even though the IRS insisted that they were pursuing the debt in good faith because of tax evasion by Murphy, they never actually submitted evidence of evasion. The bankruptcy court granted a judgment for Murphy in 2010, declaring that his debts were, in fact, discharged. Even after this order, the IRS did not appeal this ruling. Instead, they continued to try to collect on the debt.

Murphy later filed another complaint against the IRS in 2011stating that by the levies the IRS issued in 2009, they were violating the discharge under Section 7433(e). The IRS fought back by saying they were not willfully violating the discharge, insisting that they were acting under the good faith exception. The bankruptcy court found in favor of Murphy, ruling that a willful violation includes the person acting “with knowledge of the discharge,” intending to take an action to collect on a debt the entity or person knows was discharged. The IRS did appeal this decision to Federal district court, who vacated the bankruptcy court decision but agreed with the definition of willful violation.

Eventually, after the case was remanded, the IRS settled the matter out of court in 2017. In the settlement, the IRS agreed to pay Murphy $175,000 in damages, only if it lost an appeal on the question of whether Section 523(a)(1)(C) provides a good faith exception to willful violation under Section 7433(e).

The IRS lost on its bet that the appeal would go in its favor. Instead, the First Circuit ruled that a creditor has willfully violated an automatic stay if it knew of the automatic stay or discharge and took an intentional action that violated the stay or discharge. The court ruled that a good faith belief in a right to property did not matter when determining whether the creditor’s action was willful. The court considered bankruptcy discharge to be equivalent to a violation of the automatic stay.

Looking back at the procedural history, the appeals court did note that the IRS could have but did not file an objection to discharge during the original bankruptcy proceedings. Further, they could have filed an adversary proceeding prior to collection to get an official statement from the court that the debts were not discharged. None of this was done in this case. This is not to say the IRS must appear in every bankruptcy case to have the taxpayer’s debts excepted from discharge. It may wait until the discharge is issued as a defense to collection efforts, but the IRS must prove some evidence and factual basis for their objection.

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If you or a loved one 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.

 

Bankruptcy Law, Credit, Debt Relief, Foreclosures, Timothy Kingcade Posts

If you are facing foreclosure, Bankruptcy can help.

Every month, there are a number of Americans who fall behind on their mortgage payments. Some homeowners are able to work out loan modifications with their lenders, but many are not. It may seem counter-intuitive, but when someone is facing foreclosure and is in the middle of a major financial crisis, bankruptcy can be a viable option to help save that person’s home. Ultimately, it depends on your specific financial situation and the type of bankruptcy you file – but bankruptcy can be used as a tool to help keep your home.

The Power of the Automatic Stay

If your home is already set for a foreclosure sale, you may be asking, “how can I make it stop?” Filing for bankruptcy can put a stop to the process or at the very least postpone it. As soon as a petition for bankruptcy is filed, the court issues an order called an “automatic stay,” which puts an immediate halt to all collection activities that were happening to the homeowner before the petition was filed. This automatic stay also applies to foreclosure cases.  Creditors (including your mortgage lender) must immediately cease collection attempts. Even if the mortgage lender has the home scheduled for a foreclosure sale, the sale will be postponed during a pending bankruptcy.

How a Chapter 7 Bankruptcy can Help:

Chapter 7 bankruptcy cancels all the debt secured by the home, including mortgages and home equity loans. This type of bankruptcy also goes a step further, thanks to a new law, Chapter 7 also forgives the homeowner for tax liability for losses the mortgage or home-improvement lender incurs because of the homeowner’s default.

How a Chapter 13 Bankruptcy can Help:

If you want to stay in your home and do whatever possible to get caught up on past-due mortgage payments, a Chapter 13 bankruptcy may be the best option. A Chapter 13 bankruptcy is also known as a reorganization bankruptcy. It allows you, as the bankruptcy filer, to work with the bankruptcy trustee to create a repayment plan to catch up on qualifying payments. Chapter 13 bankruptcy plans normally last anywhere between three to five years.

Florida’s Bankruptcy Exemptions

Florida has one of the most generous homestead exemptions in the country and allows homeowners to claim an unlimited value of their primary residence (if the property is not larger than half an acre in a municipality or 160 acres in a non-municipality). To use Florida’s exemptions, you must have resided in Florida for at least 730 days before filing your bankruptcy petition.

Although bankruptcy and foreclosure can be damaging to your credit, sometimes filing for bankruptcy can be the start of rebuilding your credit because it allows you to obtain a fresh start.  Foreclosure not only damages your credit, but you are left with the mortgage debt, which will likely result in creditors not considering you for future mortgages.  If you find yourself facing foreclosure and are concerned about your financial future, remember that filing for bankruptcy may help save your home.

If you have 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.

 

 

 

Bankruptcy Law, Timothy Kingcade Posts

Bankruptcy Attorney Timothy S. Kingcade Obtains Successful Order Requiring Miami Regional University to Release Client’s Diploma and Transcripts

MIAMI – (August 27, 2018) Bankruptcy Attorney Timothy S. Kingcade, founding partner of Miami-based Kingcade Garcia McMaken successfully obtained an Order for his client in a Chapter 7 case (In re: Adriana Gonzalez Case No. 18-15980-RAM), requiring Miami Regional University to immediately release client’s education transcripts and diploma, and make no further attempts to collect on the discharged debt, in compliance with the bankruptcy automatic stay.

“Justice was served today for our client, who prior to this Order was being denied the basic protections of the bankruptcy automatic stay.  The creditor in this case (Management Resources Institute, which operates a for-profit school, Miami Regional University) has willfully and intentionally violated the automatic stay by refusing to release our client’s diploma and transcripts. After the bankruptcy case is over, our client will need certified copies of her transcripts, which would have been continually denied by the creditor in this case,” Kingcade said.

Our client filed for Chapter 7 bankruptcy on May 18, 2018.  The problems as described in the motion started on June 6, 2018 and have continued through the date of the amended motion. The creditor, Management Resources, Inc. d/b/a Management Resources Institute, which operates a for-profit school known as Miami Regional University was listed on the bankruptcy petition. The creditor in this case was verbally advised of our client’s status in bankruptcy and the pending automatic stay.  Our client returned at least twice to the school seeking her transcripts and diploma.

Henry Babani, Vice President of Corporate Finance for the Creditor in the case confirmed to our client that the underlying debt would be discharged in the bankruptcy, but unless she paid what was due, the Creditor would not release her diploma or her transcripts.

The stay violation has continued since our client’s first visit and since the filing of this motion. Even though the Creditor operates a nursing school (Miami Regional University) where this situation is likely to recur, the Creditor’s position is the automatic stay and/or a discharge in bankruptcy is irrelevant to our client’s right to receive a current copy of her transcript, her diploma or future certified copies of her transcripts.

Our client who is currently applying for jobs, which require these documents for employment, is in jeopardy of losing job opportunities because of the Creditor’s willful violation.

Given the continuing nature of the stay violation and Creditor’s untenable position regarding our ability to receive her transcripts and diploma (and the future right to receive certified copies of her transcripts) an award of punitive damages is warranted against Creditor as a coercive sanction to compel Creditor’s future compliance with this court’s automatic stay and/or discharge injunction.

This is not the first time our firm has obtained justice for a client in a similar circumstance, where a school willfully and intentionally violated the automatic stay by refusing to release student transcripts.  On December 21, 2016, a successful Order was obtained requiring Belen Jesuit Preparatory School, a Miami-based Catholic school, to release education transcripts in compliance with the bankruptcy automatic stay and to pay our clients’ legal fees.

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Miami-based Kingcade Garcia McMaken was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade Garcia McMaken specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish.

 

For more information visit, https://www.miamibankruptcy.com/.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Are Lawsuit Judgments Discharged in Bankruptcy?

Some filers enter into bankruptcy with collection cases already at judgment level, with the hope that these judgments along with their other debts can be discharged through bankruptcy. However, getting a judgment discharged is not always so simple, and it depends on a number of factors, including:

  • What kind of case the judgment was for; and
  • Whether the creditor who has the judgment over the debtor has already placed a lien on the individual’s property.

Bankruptcy Discharge for Most Judgments

Generally, a judgment from a lawsuit involves unpaid debts. If the bankruptcy filer has not paid his or her medical bills, personal loans or credit cards, the next step for the unpaid creditor is usually filing a lawsuit against the borrower. If a judgment is obtained, the creditor can garnish the borrower’s wages or even go after a personal asset and have a lien placed on it to satisfy the outstanding debt.

Filing for bankruptcy activates what is known as the automatic stay, giving the filer reprieve from further collection calls and attempts.  It can also put a stop to wage garnishment and can wipe out the borrower’s obligation to pay back certain debts, even in a judgment. Once a bankruptcy case is filed, if a collections lawsuit is pending, the automatic stay in the bankruptcy will put a stop to the lawsuit. Even if a judgment has been entered against the borrower, the final discharge in the bankruptcy case will get rid of that judgment for most purposes, except in certain cases. If the judgment is for a debt that is considered nondischargeable, the bankruptcy will not get rid of the debt.

Nondischargeable Judgments

Some debt is non-dischargeable in bankruptcy. If the creditor has gotten a judgment against the bankruptcy filer for a debt obligation that includes one of the following debts, a bankruptcy discharge will not get rid of that judgment. These categories include:

  • Judgments connected to domestic support obligations, including child support or spousal support/alimony;
  • Judgments for criminal penalties, fines and/or restitution;
  • Most tax judgments;
  • Most student loan obligation judgments;
  • Judgments for any debts that were acquired under false pretenses or by fraud;
  • Judgments for injuries that were willful and malicious caused by the debtor; and
  • Judgments for any injury or death that was caused by the debtor’s drunk driving.

If you have 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.

Related Resources:

http://www.alllaw.com/articles/nolo/bankruptcy/lawsuit-judgments-discharged.html

 

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

Second Landlord This Month Held in Contempt of Court for Willful Violation of the Bankruptcy Automatic Stay

Miami bankruptcy attorney Timothy S. Kingcade’s Motion Granted by Judge, Creditor Required to Cease and Desist all Eviction Proceedings and Pay Attorney’s Fees and Other Sanctions

MIAMI – (May 11, 2018) This is the second time this month Bankruptcy Attorney Timothy S. Kingcade, founding partner of Miami-based Kingcade Garcia McMaken and Attorney Kristina Gonzalez, have successfully obtained an Order for a client in a Chapter 7 case, requiring the creditor to  cease and desist all eviction proceedings and pay attorney’s fees.  The creditor in the case (In re Danny Looney Case No. 17-25332-LMI), Massmar Investments, LLC, was listed in the bankruptcy petition and was advised multiple times that the client was in bankruptcy.

“This is a victory today for our client. The landlord in this case chose to completely disregard the automatic stay put in place that protects bankruptcy clients from harassment and repossession of property. Despite having notice of the bankruptcy, the landlord continued with eviction proceedings, disregarded the law and harassed my client to no end,” Kingcade said. “Unfortunately, this is something we are seeing more of in my practice.”

The Order directs creditor, Massmar Investments, LLC to cease and desist any further eviction proceedings and dismiss the wrongfully filed eviction case, abide by the automatic stay, and pay attorney’s fees to Kingcade Garcia McMaken for having to bring forth the action.

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Miami-based Kingcade Garcia McMaken was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade Garcia McMaken specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish.

For more information visit, https://www.miamibankruptcy.com/.

Bankruptcy Law, Debt Relief

Can Debtors Recover Damages for Emotional Distress for Violations of the Automatic Stay?

One of the benefits of filing for bankruptcy involves the automatic stay, a measure that goes into effect as soon as the bankruptcy case is filed. This automatic stay puts a halt to any collection proceedings or efforts, giving the filer reprieve from the continuous calls and communications from creditors seeking to receive payment on their debts.

Actual and Punitive Damages

Under the Bankruptcy code, if an individual undergoing a bankruptcy is injured by a “willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and – in appropriate circumstances – may recover punitive damages.” 11 U.S.C. § 362(k)(1).  It is up to the court to determine whether “actual damages” includes damages for emotional distress, and this normally comes down to the question of whether the violation was accidental or intentional.

Was the Violation of the Automatic Stay Deliberate?

In some situations, a creditor can violate the automatic stay accidentally or unintentionally. Other times, the violation can be deliberate , and in complete disregard for the law. The stay is automatic, and many creditors, if they have a registered contact with the court, will find this out as soon as the stay is instituted. However, if the creditor is a smaller company, they may not find out quite so quickly, which means if the creditor continues to contact the debtor, that initial contact could be an accidental violation of the stay.

To seek damages for the violation, the filer needs to show the court that the creditor violated the automatic stay willfully. The creditor must have known that the contact or communication was prohibited but did so in spite of that knowledge. If the filer expressly gave someone employed by the creditor the information regarding the bankruptcy, then he or she has the evidence needed to show that the violation was willful.

Court Treatment of Violations of the Automatic Stay and Emotional Distress

Four circuits, including the first, third, ninth and 11th circuits, have affirmed that emotional distress damages are available if a creditor violated the stay. In recent cases, the courts have reviewed the legislative history and found evidence that the emotional consequences of the debtor were considered when creating the automatic stay. The history showed that Congress meant to protect not only the financial interests of those filing for bankruptcy, but the non-filing ones, as well. However, the fifth and seventh circuits have not been as strong in their rulings when it comes to emotional distress damages. These courts have been skeptical in the ability the bankruptcy court has to award emotional distress damages in a bankruptcy matter.

Filing a Claim

If a filer believes that he or she has been victim to a willful violation of the automatic stay, it is recommended that the individual consult a bankruptcy attorney before proceeding. The attorney can help determine what the best course of action is, given the circumstances of the case. A motion may be appropriate to request the judge to issue an “order to show cause,” requiring the creditor to provide the reason why the violation occurred. If damages were particularly significant, a lawsuit for these damages may be necessary and justified.

If you have 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.

Related Resources:

https://www.thebalance.com/your-rights-when-a-creditor-violates-the-automatic-stay-316196

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

Landlord Held in Contempt of Court for Willful Violation of the Bankruptcy Automatic Stay

Miami bankruptcy attorney Timothy S. Kingcade’s Motion Granted, Creditor Required to Cease and Desist all Eviction Proceedings and Pay Attorney’s Fees

MIAMI – (April 30, 2018) Bankruptcy Attorney Timothy S. Kingcade, founding partner of Miami-based Kingcade Garcia McMaken successfully obtained an Order for his client in a Chapter 7 case, granting Emergency Relief Requested.  Florida Bankruptcy Judge, A. Jay Cristol signed an order holding the landlord / creditor, Jonathan Smith and Delores Smith in Contempt of Court for Intentional Violation of the Automatic Stay (In re Montalvo Case No. 18-11489-AJC). Creditor, Jonathan Smith and Delores Smith are directed to immediately cease and desist all eviction proceedings and pay Kingcade Garcia McMaken $2,250.00 in attorney’s fees for having to bring forth the motion to enforce the automatic stay and protect its client.

“We are extremely pleased with this victory for our client today.  The landlord in this case completely disregarded the automatic stay put in place that protects bankruptcy clients from harassment and repossession of property. Despite having actual knowledge of the bankruptcy and automatic stay protections, this landlord continued to harass and threaten my client, causing them unnecessary distress, even going so far as to serving them with an eviction lawsuit during the case,” Kingcade said.

The Order directs creditor, Jonathan Smith and Delores Smith, jointly and severally, to pay attorney’s fees to Kingcade Garcia McMaken for having to bring forth this action and to cease and desist all eviction proceedings until further order of court.

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Miami-based Kingcade Garcia McMaken was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade Garcia McMaken specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish.

For more information visit, https://www.miamibankruptcy.com/.

Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

A Consumer’s Rights When a Creditor Violates the Automatic Stay

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.

Related Resources: https://www.thebalance.com/your-rights-when-a-creditor-violates-the-automatic-stay-316196

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Creditor Held in Contempt of Court for Violating Automatic Stay in Miami Bankruptcy Case

Kingcade & Garcia’s Motion Granted, Creditor Required to Cease and Desist all Eviction Proceedings Until Further Order of Court 

MIAMI – (January 24, 2018) A Florida judge signed an order today holding creditor, IH5 Property Florida LP with GP IH5 Borrower GP LLC, more commonly known as Invitation Homes (www.invitationhomes.com) in contempt of court for intentional violation of the automatic stay. Miami bankruptcy attorney, Timothy S. Kingcade’s client filed a Chapter 7 petition on November 30, 2017. Despite having notice of the bankruptcy filing, on December 5, 2017, the creditor, Invitation Homes, proceeded to file an eviction action against the client. Attorney Kingcade filed a motion to hold the landlord in contempt of court for violating the automatic stay. The motion adequately showed that Isamar Alers of Invitation Homes had actual knowledge of the bankruptcy on November 30.

“The landlord in this case disregarded the automatic stay put in place that protects bankruptcy clients from harassing debt collector calls, wage garnishment and repossession of property.  We are extremely pleased with this victory for our client today.  This landlord was wrong and thought the laws of bankruptcy code did not apply to him,” Managing Partner, Timothy S. Kingcade said.

The Order directs creditor, Invitation Homes to immediately cease and desist all eviction proceedings until further order of court.  The creditor is also required to pay attorney’s fees (on or before February 12, 2018) in the amount of $1,200 for Kingcade and Garcia having to bring forth the motion to enforce the automatic stay and protect the client.

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Miami-based Kingcade & Garcia, P.A. was established by managing partner and bankruptcy attorney, Timothy S. Kingcade in 1996. The firm represents clients throughout the State of Florida in Chapter 7 bankruptcy and foreclosure defense cases. The firm is committed to providing personalized service to each and every client, clearly explaining the options according to the unique circumstances of his or her life. The office environment and the service provided are centered on a culture of superior client care for the financially disenfranchised. All partners and associates at Kingcade & Garcia, P.A. specialize in consumer bankruptcy and foreclosure and have dedicated their practices to this area of the law. Additionally, all attorneys and staff members at the firm are bilingual speaking Spanish. For more information visit, https://www.miamibankruptcy.com/.