Legal Question in Bankruptcy in California

violation of automatic stay suit

Client filed for chapter 7,had included a personal vehicle that fell under guidelines.This debt was re-affirmed and filed with permission of TRUSTY. Leinholder was notified of auto stay by counsel,and was informed of process re the claimed vehicle. Leinholder arbitrailrly decided to REPO vehicle while the AUTO stay was in effect. I have advised client to file for damages.They have been discharged of BK since that time. Under what sections has the Leinholder violated a/any law? And what is the client recourse suit to containwhat amount?treble?contarct?tort?...what are they entitled to,and how should the action be entitled? Thanx


Asked on 4/15/98, 3:09 am

1 Answer from Attorneys
Mark Markus Law Office of Mark J. Markus

Violation of Automatic Stay--Reply

Section 362(h) is the applicable statute for willful violation of the automatic stay. You must prove damages in order to recover. It is also contempt of court to violate the stay. Your facts, however, are a bit unclear. If the creditor signed and filed a reaffirmation agreement, why would they repo the vehicle? Had she missed post petition payments? The trustee has nothing to do with reaffirmation agreements, so I'm not sure what you mean by it was filed with his/her permission. If your client would like further legal assistance in this matter and lives in the Los Angeles area, please have them contact me and I will be happy to assist.

Regards,Mark

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Answered on 5/04/98, 2:52 am


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