Q: When should an attorney file violation of the automatic stay? We disagree on intention of Code 362 and I'm no expert.
I'm 2yrs into a 13. When I enforce HOA to act (repair/replace/maintain) twice on separate occasions their rep's have responded with "oh and by the way...you owe this on your bankruptcy; attached is an account ledger; we advise you to reach out to our (sic) attorney's to discuss" when I'm in the middle of a bankruptcy. I believe it's a violation of Code 362 because it was done more than once and it was an attempt to collect. My attorney (who I respect as the bankruptcy professional) disagrees. In reaching out to the Trustee office; attorneys' email did not sound 'supportive' and is making me question their expertise in filing for the violation. Before I consider firing my attorneys, is/are there specific acts and/or harms that need be proven?
A: Your attorney is correct. That is not a violation of the automatic stay nor is it an attempt to collect a debt. While they may have referenced it when you called them, they did not take any affirmative act toward collecting the debt. Id stay with your current lawyers. They are trying to keep you from throwing good money after bad by pursuing this purported violation.
I generally agree with my colleague's prior answer, but for more pointed reasons.
The US Supreme Court recently handed down a major bankruptcy ruling about creditor violations of the automatic stay, and especially with respect to its ruling that the bankrupt debtor must now affirmatively prove that a creditor acted with intent to violate the stay, e.g., in bad faith, where previously (for a long time) the burden was on the creditor to justify whatever it had done with respect to the debtor and his property.
On top of that, almost all homeowner's associations have the right to charge, and determine the amount of, periodic homeowner fees, AND, those fees become a first secured claim against the homeowner's real property, entitled to payment in full, with interest, in a bankruptcy case.
So, yeah, your bankruptcy counsel is most probably correct, and you should take heed of that advice.
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