Stay question

[upside_down]

After talking with half a dozen attorneys, I finally found one I liked and we filed on October 29. I have a couple of questions that I do not want to bother my attorney with:

- On my attorney's advice, I stopped paying my creditors as of the end of September. My mortgage holder called me on the 26th of Oct looking for payment. I gave them my attorney's name and number and told them we were filing BK in the next 72 hours. They called me on the Second, and I told them we had filed the previous week. They said they can call all they want until they get served. They called three times (I wasn't home and didn't answer) on the 3rd, and twice on the 4th. What do they hope to accomplish? Since I am represented by an attorney, and State law says if I am represented by an attorney they cannot contact me, are they breaking the law? Are they right that they can call until they are served? Or is me telling them I filed BK and giving attorney's info enough?

- One of my credit cards has updated their tradeline to read "Debt included in or discharged through Bankruptcy Chapter 7, 11, or 12 Credit line closed-grantor request-reported by subscriber" and changed the balance to $0. Is this allowed, or are they supposed to do nothing once they know I have filed?

[Denita]

Your mortgage holder is violating the automatic stay.

Yes, the creditors are allowed to update your credit report with the notation: "included in bankrupcy" with a zero balance.

Speak to your attorney about your mortgage holder's violation.

[WhoCares1000]

You need to bother your attorney with this because you are paying them to deal with this type of stuff. The automatic stay was violated and you attorney needs to get in their face about it.

As for the credit report issue, I would guess that as soon they were served, they updated your report immediately (again to avoid any looks of violating the stay). Bankruptcy is based on the day you file, not on the day you get your discharge so the credit report it correct.

[upside_down]

My mortgage holder called me again at noon. I again pointed out that what they were doing is illegal, and they said that I am misunderstanding the law. So, I called my attorney.

The attorney said, "What, are they stupid?" So, my attorney called them. They told my attorney that they would NEVER do such a thing, and that it must be a mistake or miscommunication. I don't know how I can take "You have a past due amount of $xxx, can we make arrangements to take care of this today." any other way than as an attempt to collect, especially when they start the call by saying "This is an attempt to collect a debt, and any information we obtain will be used for that purpose."

My attorney said that I should try to get it in writing, but also said that the bank won't be that stupid. What the mortgage holder doesn't know is that my only phone is a cell line, and I get an itemized bill that shows exactly who called me and when.

[upside_down]

Wow. Less than 30 minutes after my attorney spoke to them on the telephone, they called me again. I decided to have some fun with the caller. It went like this:

Call Center Employee: I was just calling to see how you want to take care of this delinquent account.
Upside_down: Can you send me a written letter?
CCE: No. That is why I am calling. You need to pay your bills.
UD: I'm not planning on paying you anything.
CCE: Do you mind telling me why?
UD: I don't want to discuss that.
CCE: You HAVE to. I NEED a reason.
UD: Good luck with that.
CCE: So when do you plan to move out?
UD: I currently don't have any plans to move out.
CCE: If you don't pay this now, I am going to refer this to our legal department, and we will sue you and have the Sheriff throw you out.
UD: Good luck with that.


He hung up. Hahahaha.

[Denita]

Why don't you record the calls?

Your attorney needs to send them a letter notating the time and date of the violations and then bring the creditor into court for sanctions. This will be the second notice (because I am pretty sure you put your lender on your BK matrix! LOL) so the BK court will not look too kindly on the mortgage lender.

Be aggressive with this... not only will the sanctions pay your attorney fees you should end up with some cash too.

[2ndTimeAround]

Originally Posted by upside_down

Wow. Less than 30 minutes after my attorney spoke to them on the telephone, they called me again. I decided to have some fun with the caller. It went like this:

Call Center Employee: I was just calling to see how you want to take care of this delinquent account.
Upside_down: Can you send me a written letter?
CCE: No. That is why I am calling. You need to pay your bills.
UD: I'm not planning on paying you anything.
CCE: Do you mind telling me why?
UD: I don't want to discuss that.
CCE: You HAVE to. I NEED a reason.
UD: Good luck with that.
CCE: So when do you plan to move out?
UD: I currently don't have any plans to move out.
CCE: If you don't pay this now, I am going to refer this to our legal department, and we will sue you and have the Sheriff throw you out.
UD: Good luck with that.


He hung up. Hahahaha.

Funny -

Years ago I was self employed - owed $80k on credit cards, the bill collectors were calling every day. They would say - are you ready to make payment? Every morning at the same time....

There was the one lady - Mrs Mack in Az, over a period of two months, every morning like clockwork she would call. I'd say "have you had your coffee yet", laughing. "Not paying you today".

Ended up settling directly, at a reduced amount. The collection company's didn't like that.

Denita has a good idea, recording the conversation. When they do call - get all their information and tell them they have been recorded, you are turning over the information to your attorney.

Good Luck!!!

.

[WhoCares1000]

I do not know about recording without telling because some states have a 2 party notification rule. However, if these calls were made to your cell, most cell phones keep track of the last 10 - 20 calls. You need to records the number, day, and time of the call and hand that to your attorney.

I do have to agree with your attorney asking if they are stupid however and I think we found out the answer to that when they called after your attorney talked to them. Apparently the bankruptcy department is not talking to the collections department right now. In fact, when the collector mentioned the legal department, you should have told them that your file should already be in the legal department.

I think what the collector is referring to is the fact that even if the Ch 7 BK clears out the mortgage, there is still a lien on the property and they can foreclose. However, the bank is still prohibited from either starting/continuing with foreclosure or calling you while the case is open unless they first get a motion for relief from the automatic stay. In other words, you have those people dead to rights and now it is time for your lawyer to collect. BK judges to not take kindly to violations of the automatic stay.

[upside_down]

I got a notice from the post office that they tried to deliver certified mail to my house from my mortgage holder. I will get it in the morning. I can't wait to see what they are doing.

Also, I checked- Florida is a 2 party state. I cannot record.

[Denita]

You can record, BUT you have to give the other party notice and they have to agree. If they do not agree, then you can not record it and use it in a court of law. As an aside, maybe you can record it to keep for your own records only...one of the attorney's on this site may be able to tell you if you can or not.

In the alternative you can log their conversations with you contemporaneously with the conversation. Take notes by hand or on the computer whichever is easier and faster for you.

[DFS]

well, when any debt collector called I did one of two things depending on my mood and what was going on.

First, if I answered the phone and they identified themselves as debt collectors and, in my case, they always said they were recording the phone calls (sometimes for training) I would answer each of their questions with, "is this still being recorded." I would never answer their questions with anything else - I would just "play" with them until they hung up.

2nd, I would say "great your are recording so I would also like to record for training and litigation purposes." Should have heard the silence. None of them said sure, but if they would have I would have taken my sweet time setting up the recording equipment and all the while be whistling in the background. Time is money to them.

Another thing that always amazed me (well, knowing what I know now it doesn't) is when you would never actually admit on the phone who you were. Some would say thanks and hang up, but others would continue with their "script" - ohhhhhh how I wish I knew then what I know now and documented those violations.

[WhoCares1000]

If it is an intention to deal with you regarding the reaffirmation of the debt, the letter will probably not be considered a violation of the stay. The courts have realized that in the situation of reaffirmation, the creditor was put in a bad position of having to worry about violating the stay while exercising their right to offer a deal for reaffirmation and as such, have ruled that such a deal is not a violation of the stay as long as the debtor understands that they can refuse the deal and the consequences for acceptance or refusal of the deal.

If the letter is anything else, such as a demand for the loan amount or a pre-foreclosure notice, then you have hard evidence of the violation of the stay.

In either case, take the letter to your lawyer as soon as you can after signing for it. Your lawyer should tell you how to proceed once reading it.

[upside_down]

It is a notice of default, and the letter states that if I do not pay the overdue balance within 30 days, they will accelerate the entire balance and foreclose.

The letter is dated November 3. I filed October 29. I imagine they will just claim that they didn't know about the BK filing.

[Denita]

The servicer might claim they were not notified, except that most of the larger mortgage servicers subscribe to a bankruptcy filing service that notifies them electronically (instantly) when someone files BK.

Still, bring this to the attention of your attorney so he can send the servicer the appropriate letter/notification again. If the servicer continues to violate the stay, you can still bring the creditor to court for sanctions. Don't let this sit... the servicer knows they have to file a motion to lift the automatic stay before they can initiate foreclosure proceedures.

[Methuss]

Originally Posted by upside_down

Also, I checked- Florida is a 2 party state. I cannot record.

Only if they are also in Florida. States cannot regulate inter-state communications. That is the pervue of the Federal government (in particular the FCC). The Federal law is single-party knowledge of the recording.

So if they are calling from another State, record all you like. The Federal law applies. And since Bankruptcy court is also a Federal court, you don't have to worry about some confused local judge that doesn't understand the difference.