Q: Do I have a case against my creditor for harassment?
My creditor called me today asking for the car. I told her to contact my trustee and she started shouting saying the trustee has nothing to do with this. She started calling me ignorant and shouting saying do whatever you want i don't care.
A: You may have a claim against the creditor for violating the ultimatum stay, especially if she calls again. Try to record it and get some proof.
A: If your bankruptcy is still pending and you have not received your discharge yet, the creditor is violating the automatic stay. If the person calling is the lender on the car and you are not making payments, the lender needs to file a Motion with the bankruptcy court to recover the car. If your case is over, and you have received your discharge, the lender cannot collect payments from you but they have a lien on the car, so they are entitled to repossess the car. If you want to keep the car, you must make the payments because of the lender's secured interest in the car. The Trustee has nothing to do with these issues. I suggest seeking advice from a bankruptcy attorney.
A: The Bankruptcy Code section 362(k) provides for an individual (including the debtor) to recover actual damages and potentially punitive damages for a willful violation of the automatic stay, you would likely have difficulty proving damages. However, the automatic stay terminates as to personal property, such as a vehicle, pursuant to Bankruptcy Code section 362(h) if the debtor does not file a statement of intention regarding the personal property or timely taken the required action to fulfill the stated intention. You should consult with an attorney regarding the documents filed in your case and make sure that you are adhering to the requirements of the Bankruptcy Code.
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