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How to deal with summons after BK filing (automatic stay?)


tazu_474
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The auotmatic stay is in affect the instant the bk was filed.

I have 4 outstanding summons with the Jefferson COunty Sheriff, and one with the Shelby County Sheriff. Cap1, HSBC, Discover, etc.

How to properly handle them? Should I just let them lie there, or should I pick them all up and respond to the summons by asking the court to honor the stay and dismiss the complaint.

Include, a copy of the creditors matrix with this creditor listed plus, you're filing number. Next, contact the creditor by phone and inform them of the filing and ask that they voluntarily dismiss the case. Follow up with a letter making the same request and include a copy of the creditors matrix. Send the letter CRRR.

Advice?

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Technically, the case won't be dismissed until your discharged. The stay is just that= a STAY. So long as no action takes place in the case during the stay, no violation.

If you were represented, then your attorney would file a suggestion of bankruptcy on the docket. That puts all parties in interest on notice that the say is in effect. Then if there is another action by a creditor, then BAM, you sanction them and they have no defense.

That's what we do in our office anyway. Its fun.

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If you were represented, then your attorney would file a suggestion of bankruptcy on the docket. That puts all parties in interest on notice that the say is in effect. Then if there is another action by a creditor, then BAM, you sanction them and they have no defense.

That's what we do in our office anyway. Its fun.

It came down to timing - Cap1's attorneys sent the service papers about the same time I filed. I'm representing myself, so I filed an answer yesterday citing the US bankruptcy code, my case #, and entered a motion to dismiss. Was pretty easy to do in Louisvile, KY - I just typed up the answer, took it to the clerk's office, timestamped it, and put it in the drawer.

We'll see what they say.

Thanks for the response!

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Guest usctrojanalum

case will probably not get dismissed. what happens if you do not get discharged for whatever reason? all of the lawsuits will be allowed to move forward.

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If Cap 1 was included in the creditors matrix, then they will have already been notified. What should happen is that the case will be continued but the judge will want a report in about 3 - 4 months (most BK cases take that long) to see where the BK case is. Once you get the discharge, you can file a copy of that with the court and the case will be dismissed at that point.

The problem is also, what happens if Cap 1 manages to get the judge to exclude your debt in the discharge. It is a high hurdle to climb and more likely they will not try but if they manage to do so, then they can get an exception to the automatic stay and move on with the case.

So you will not get your dismissal right away but the case will not move on until they get guidance from the BK court.

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The problem is also, what happens if Cap 1 manages to get the judge to exclude your debt in the discharge. It is a high hurdle to climb and more likely they will not try but if they manage to do so, then they can get an exception to the automatic stay and move on with the case.

And how would they be able to do that?

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Guest usctrojanalum

It's rare, but they would have to object to the discharge. The only time you really see it is when people max out their cards never intending to pay a nickel, and then shortly thereafter file BK.

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The bank has to file what is called an adverse hearing at the BK court and they would have to prove you committed fraud by showing that you took our credit with no intent to pay it back.

As USC says, this usually occurs when someone maxes out their credit cards on frivilous items with no intention to pay back. This is very hard to prove for the banks and most do not bother to try (although I have heard that some do try to scare the debtor to reaffirming the debt by threatening to file for such a hearing). I would not worry about that too much.

Even if they do file an adverse hearing, the original court case is still stayed until the hearing is decided and even if the bank is successful, the court case would be stayed until the BK case is closed unless the bank does another hearing to remove the automatic stay in their case.

Not only that but the expense of adverse hearings are so high that a BK court clerk told me that the BK courts laugh at bank that does an adverse hearing for a debt of less than $10,000.

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