What are the Elements of a Debtor’s Case for Violation of the Automatic Stay?
By Nicholas Ortiz, Attorney at Law on Oct 12, 2007 in Automatic Stay
To establish a willful violation of the automatic stay a debtor must prove by a preponderance of evidence the following: (1) that a bankruptcy petition was filed, (2) that the debtors are “individuals” under the automatic stay provision, (3) that the creditors received notice of the petition, (4) that the creditors’ actions were in willful violation of the stay, and (5) that the debtors suffered damages. These elements were articulated by In re Flack, 239 B.R. 155 (Bankr.S.D.Ohio 1999) and recently cited with approval by the Bankruptcy Court in Massachusetts in the case of In re Shabanoff, 2006 WL 4821517 (Bkrtcy.D.Mass.2006).
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