If a lender violates the automatic stay, how do we go about asking for damages if they withdrew money from debtor checking acct?

Asked over 1 year ago - San Diego, CA

they gave a loan but we filed bankruptcy before the due date. We already went to the 341 hearing and just waiting to get the discharge in a week or two. They claimed they did not get the case number so they took the money yet they were informed and clearly included in the bankruptcy. The damage was just the money taken which was $560.

Attorney answers (5)

  1. Brian Campbell Fenn

    Pro

    Contributor Level 11

    4

    Lawyers agree

    Answered . I agree with my colleagues' answers and would only add a word of caution for you. In your question you said "they gave a loan, but we filed bankruptcy before the due date." This may be my misunderstanding, but it appears that you took out a loan shortly before filing bankruptcy, received money, and then didn't pay anything back prior to filing bankruptcy. Although there can certainly be valid reasons for doing so, your creditor may believe that you defrauded them by taking out the loan and then immediately filing bankruptcy without making any payments. If they can prove that you borrowed the money and really didn't ever intend to repay it as you promised, that debt could stick with you after the bankruptcy is over.

    Brian C. Fenn FENN LAW FIRM 29222 Rancho Viejo Rd. Ste. 102 San... more
  2. David Watson Wiese

    Pro

    Contributor Level 10

    3

    Lawyers agree

    Answered . I would suggest contacting the attorney that represented you in the underlying case. He or she is likely to know what to do.

    I typically call and ask for the creditor to return the money without delay. And if they do I consider the matter closed. However, on the rare occasion a creditor won't listen to reason, an ex parte application can be made to the court for an order to show cause why the creditor shouldn't be held in contempt for violation of the automatic stay.

    If the court is persuaded by the application it will order the creditor to appear and explain why the money wasn't returned when the automatic stay violation was discovered. Should the creditor fail, the bankruptcy court has the power to award actual damages and attorney's fees for bringing the motion.

    Good luck!

  3. Kathryn Ursula Tokarska

    Contributor Level 16

    3

    Lawyers agree

    Answered . This happens, rarely, but it does. Demand they return the money immediately. Most creditors will comply without hesitation, the alternative is not a good move for them.

    I am not YOUR lawyer. Don't rely on answers to questions as legal advice. For legal advice contact a Bankruptcy... more
  4. Brett Francis Bodie

    Contributor Level 9

    1

    Lawyer agrees

    Answered . You very likely can pursue a monetary judgment against the creditor, but you should contact a local bankruptcy attorney to help you. You will probably recover far more, even after attorney's fees, than if you pursue it on your own.

    Nothing contained in this message should be construed as legal advice. Brett Bodie, Attorney. http://... more
  5. Scott Benjamin Riddle

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . Start with asking for the money back, not starting/threatening a big battle.

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