What is the name of your state?CA
First, sorry this long, but it's an interesting story.
Thanks to some great advice on this board, I'm filing a Motion for Contempt against a creditor who has violated the automatic stay, plus has tried to circumvent the rules by turning the debt owed into a criminal matter (bad check). I didn't write the check, and two pre-lim hearings were held at in Massachusetts where counsel represented me. It has gone forward to arraignment despite the huge amount of evidence presented (magistrate knew creditor personally, asked him 'what he wanted to do').
Now, the creditor admitted in front of the magistrate in MA that he decided to file a criminal suit after receiving the bk petition, he admitted this in front of the magistrate and our lawyer. I called the clerk of the court in MA for a transcript, but apparently they don't keep transcripts. When asked why he didn't go after the guy who gave him the check to cash, he told the magistrate and our lawyer that he knew the guy didn't have any money (like we do....) So basically, he feels that we will somehow pay rather than go through the stress of returning to MA and the costs involved - a form of extortion. (stolen check was honored for $2500 - he wants this and court costs: $2700).
I am told by good folks on the criminal board that even if the creditor/complaintant wanted to drop the suit, he couldn't, as it is now in the prosecutors hands, and that I should try to waive arraignment, and send the evidence to the prosecutor before the trial date to see if they will throw it out. We've spent $750 so far on counsel regarding this matter, even though all our effects are still in the custody of the bankruptcy trustee, as we are awaiting discharge for a no-asset case on Jan 30. Trustee has already filed a no-asset notice.
We called the clerk of the court in Massachusetts (we are in California) to verify that the complaint has gone forward to arraignment. We were told that the 'person' who does this isn't back in the office until Tuesday, so the paperwork is still sitting in some file waiting to be processed.
We called the creditor yesterday, and explained (again) our situation, it wasn't my checking account, my signature, etc. It actually was my wife's checking account, but no way her signature. He told us that he was going forward with the criminal complaint, and if that one failed, he would file a criminal complaint against my wife. Jesus.
We told him he had violated the automatic stay by sending us a letter in early December of 2005 (filed bk on Oct 14, 2005) in an attempt to collect the money. In the letter, he states that he has filed a criminal complaint, but would drop it if we or 'someone who knew us' would pay the money. When we told him on the phone that a Motion for Contempt would be filed, he went totally silent. He then said he just wanted his money. We told him we were sorry, but he's going after the wrong people.
Why the long story......I think he is going to try to stop the complaint from being issued for arraignment on Tuesday morning; but I have no guarantees, and so far, would be relying on his word, which doesn't sound great right now. Lots of threats. Plus, couldn't he then file an adversary motion or relief of stay with the bk court, even though it's a no asset case?
However, we feel that we must file the Motion for Contempt anyway, as protection, since he said that he would sue my wife next. Or maybe our company, or my daughter, who knows......maybe he'll find my diabetic mother and sue her too.
How much detail should I put in the Motion for Contempt, and what do I do as far as a Request for Sanctions? Is that a separate form?
I called the bk clerk here in northern Cal, and they said told me what to do as far as filing procedures go for the motion for contempt.
So:
1. Can I actually seek damages here? Are there statutory limits?
2. Is it proper to cite precedence here, especially from the judge presiding our case?
3. Should I file in small claims for fcra violations?
4. Should I file in civil court for personal injury? Slander, libel, etc.
5. Will there be a hearing for the motion for contempt filing, will that guy have to come to CA?
6. Should I attach the letter he sent us as an exhibit to the motion for contempt?
7. Since the guy twisted the bk issue into a criminal one, which I am forced to deal with, will our bk judge even want to touch this?
I'm so darn mad that I would really love to make HIM come to CA and/or pay counsel here!!
I really just want to make sure this jerk leaves me alone, but I feel only legal sanctions are going to make that happen.
Thanks for any advice, once again.
First, sorry this long, but it's an interesting story.
Thanks to some great advice on this board, I'm filing a Motion for Contempt against a creditor who has violated the automatic stay, plus has tried to circumvent the rules by turning the debt owed into a criminal matter (bad check). I didn't write the check, and two pre-lim hearings were held at in Massachusetts where counsel represented me. It has gone forward to arraignment despite the huge amount of evidence presented (magistrate knew creditor personally, asked him 'what he wanted to do').
Now, the creditor admitted in front of the magistrate in MA that he decided to file a criminal suit after receiving the bk petition, he admitted this in front of the magistrate and our lawyer. I called the clerk of the court in MA for a transcript, but apparently they don't keep transcripts. When asked why he didn't go after the guy who gave him the check to cash, he told the magistrate and our lawyer that he knew the guy didn't have any money (like we do....) So basically, he feels that we will somehow pay rather than go through the stress of returning to MA and the costs involved - a form of extortion. (stolen check was honored for $2500 - he wants this and court costs: $2700).
I am told by good folks on the criminal board that even if the creditor/complaintant wanted to drop the suit, he couldn't, as it is now in the prosecutors hands, and that I should try to waive arraignment, and send the evidence to the prosecutor before the trial date to see if they will throw it out. We've spent $750 so far on counsel regarding this matter, even though all our effects are still in the custody of the bankruptcy trustee, as we are awaiting discharge for a no-asset case on Jan 30. Trustee has already filed a no-asset notice.
We called the clerk of the court in Massachusetts (we are in California) to verify that the complaint has gone forward to arraignment. We were told that the 'person' who does this isn't back in the office until Tuesday, so the paperwork is still sitting in some file waiting to be processed.
We called the creditor yesterday, and explained (again) our situation, it wasn't my checking account, my signature, etc. It actually was my wife's checking account, but no way her signature. He told us that he was going forward with the criminal complaint, and if that one failed, he would file a criminal complaint against my wife. Jesus.
We told him he had violated the automatic stay by sending us a letter in early December of 2005 (filed bk on Oct 14, 2005) in an attempt to collect the money. In the letter, he states that he has filed a criminal complaint, but would drop it if we or 'someone who knew us' would pay the money. When we told him on the phone that a Motion for Contempt would be filed, he went totally silent. He then said he just wanted his money. We told him we were sorry, but he's going after the wrong people.
Why the long story......I think he is going to try to stop the complaint from being issued for arraignment on Tuesday morning; but I have no guarantees, and so far, would be relying on his word, which doesn't sound great right now. Lots of threats. Plus, couldn't he then file an adversary motion or relief of stay with the bk court, even though it's a no asset case?
However, we feel that we must file the Motion for Contempt anyway, as protection, since he said that he would sue my wife next. Or maybe our company, or my daughter, who knows......maybe he'll find my diabetic mother and sue her too.
How much detail should I put in the Motion for Contempt, and what do I do as far as a Request for Sanctions? Is that a separate form?
I called the bk clerk here in northern Cal, and they said told me what to do as far as filing procedures go for the motion for contempt.
So:
1. Can I actually seek damages here? Are there statutory limits?
2. Is it proper to cite precedence here, especially from the judge presiding our case?
3. Should I file in small claims for fcra violations?
4. Should I file in civil court for personal injury? Slander, libel, etc.
5. Will there be a hearing for the motion for contempt filing, will that guy have to come to CA?
6. Should I attach the letter he sent us as an exhibit to the motion for contempt?
7. Since the guy twisted the bk issue into a criminal one, which I am forced to deal with, will our bk judge even want to touch this?
I'm so darn mad that I would really love to make HIM come to CA and/or pay counsel here!!
I really just want to make sure this jerk leaves me alone, but I feel only legal sanctions are going to make that happen.
Thanks for any advice, once again.