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

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. Best answer

    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. 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 advice. I don't have enough information to give actual legal advice. I can only take the limited information presented and provide a idea of what you might do and how it may turn out.

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

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