Written on April 2, 2010 by Eugene S. Melchionne Attorney at Law in Bankruptcy Basics
It is not necessary to prove intent to violate the automatic stay when a creditor calls after you have filed for bankruptcy in order to recover damages for harassment.
Considering the previous post, you may imagine that the creditor who harassed you claims in Court, “I didn’t mean to violate the automatic stay when I sent bills and made those 3 AM phone calls. It was an honest mistake!” Thankfully, if he argues something like this, the Judge will side with you.
When attorneys file motions against creditors for violating the automatic stay, all they need to show is that the actions were a “willful violation” of the stay. That means the creditor “knew or had reason to know” that you filed for bankruptcy.
In practical terms, this means your attorney does not need to show intent or some nefarious scheme to try to collect despite the bankruptcy or sent out an incriminating memo stating a desire to violate the stay.
In other words, your lawyer merely needs to show the Court that the creditor should have known the automatic stay existed and that the creditor sent the notice. By showing this, you will receive damages from your harassing creditor.
Of course, the nest question to be answered is “what are the damages?” While emotions are a factor, it is impossible to put a number on them. However, if you lose time from work or have to pay an attorney to defend you or are put to some other cost, these can be recoverable.
If you’re thinking about bankruptcy in Connecticut, please contact me for a free initial consultation to get answers to all of your Connecticut bankruptcy questions.
Contact Attorney Melchionne
Eugene S. Melchionne, Esq.27 First Ave.Waterbury, CT 06710(203) 757-3437
www.mybkcounseling.com
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