I invested money with a real estate agent posing as a broker , for helping people who were losing their homes to be able to recover . I was given a Deed of Trust and a Promissory Note , neither which ever got signed or recorded . Then this person filed bankruptcy , I filed an Adversary Bankruptcy against her , things got to much for me so I hired a Bankruptcy attorney . Case is still pending , but in the mean time the D A's office tried her for fraud , I don't know what all the counts were , the case when to a hearing she plead guilty go a lessor sentence was convicted of Grand Theft and ordered to pay me restitution . My questions , can I have her served paperwork I am filing with the DER to collect some of my money back , will I be in violation of the automatic stay by doing this . Help
As Attorney Bunce pointed out, it is a violation of the automatic stay to "serve" documents on the real estate agent when she is protected by the bankruptcy automatic stay.
However, I assume what you meant about the "DER" is really the DRE restitution fund. I am not certain, but I don't believe you are required to "serve" or even send a copy of any of those documents to the real estate agent. I think you are only required to file the documents with the DRE. You should check on that with the DRE directly.
As Attorney Bunce pointed out - why aren't you asking your bankruptcy attorney these questions? You should be working with your bankruptcy attorney and NOT doing things without their knowledge and agreement.
If you need further clarity, please email me at MICHAEL@MIRELAND.US Answers to questions are for general information purposes only and do not establish an attorney-client relationship. This is not legal advice, simply information. You SHOULD NOT act on this information without consulting a competent bankruptcy attorney in your area and providing ALL relevant information.
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Construction / Development Lawyer
As the others said, be careful taking any action against the debtor while she is in bankruptcy. Penalties for violating the automatic stay can be severe. If your bankruptcy attorney can't give you the answer, then find one who can. It might be a good idea, just to protect yourself, to file a motion in the BK court for leave to bring a claim with the DRE. If you get the court's permission, then there will be no violation of the stay.
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