Credit violated automatic stay. Which is best to file, an adversary proceeding-suit, or motion for sanctions? Thanks

Asked almost 2 years ago - San Antonio, TX

Creditor proceeded with suit for forcible detainer in JP court and admitted in open court that they were aware of the chapter 7 filing. No court transcripts, but judged STAYED the matter instead of dismissing it and referred the property manager to bankruptcy court.

Attorney answers (3)

  1. 5

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . Which is "best" for you to file depends on which court you are in. In the NDTX court you file an Adversary Proceeding but the EDTX court requires it be a motion.

    Also please be aware of all the ways the automatic stay is weakened when dealing with a rental/lease situation as you've described. Section 362 of the bankruptcy code is limited where there is an F.E.D. suit in J.P. court, so you will want to make sure the facts you are alleging really did in fact violate the stay. Sometimes they do, sometimes they don't.

    Below are some links to the bankruptcy court materials I'm referring to.

  2. 6

    Lawyers agree

    Answered . The question is whether this is a contested matter or not. It will depend on your Circuit and local case law.

    In Arizona, it is proper to use a Motion for Sanctions. The big question is damages and how much notice and how many violations. The judge also makes a difference.

    I have filed a number of these and these are fun to prosecute.

    Good luck.

    Jim Webster

    1845 S. Dobson Rd. Ste 201
    Mesa, AZ 85202

    (480) 464-4667

    We are a debt relief agency. We help people file for relief under the Bankruptcy Code.

    If you live in Arizona, please contact me for actual advice; this is just speculation. It certainly is not legal... more
  3. 4

    Lawyers agree

    Answered . I suggest you file a Motion for Sanctions, but it is best you contact a local attorney for more specific advice.

Related Topics

Chapter 7 bankruptcy

Chapter 7 bankruptcy is a form of bankruptcy where your debts are canceled, but some of your assets are sold to pay off part of your debt.

Stephen M. Dunne

What is Chapter 7 Bankruptcy?

Chapter 7 Bankruptcy wipes out ("discharges") your debts. Chapter 7 is the bankruptcy provision most frequently used by individuals. It involves the complete liquidation of a debtor's... more

Automatic stays in bankruptcy

Automatic stays are injunctions that prevent most forms of debt collection. They go into effect immediately upon filing for bankruptcy.

Jason Chandler Farrington

The Automatic Stay

The automatic stay is an injunction that automatically stops all lawsuits, foreclosures, garnishments, and all collection activity against a debtor the moment a bankruptcy petition is... more

Can't find what you're looking for? Ask a Lawyer

Get free answers from experienced attorneys.


Ask now

33,213 answers this week

3,688 attorneys answering

Ask a Lawyer

Get answers from top-rated lawyers.

  • It's FREE
  • It's easy
  • It's anonymous

33,213 answers this week

3,688 attorneys answering