07 Mar Litigation Paying For Your Bankruptcy
Do people really have their bankruptcy casepaid for through litigation? It depends. It depends on what happens during your case such as a stay violation or what happens after your case is completedsuch as a discharge violation. It depends on whether your attorney feels comfortable filing the litigation because not all attorneys do. While it is true that all litigators are attorneys not all attorneys are litigators. One of the biggest factors in deciding whether or not to litigate is, what is the client like? Is the client compliant with directions? Are they easy to work with? Are their expectations reasonable? How will they be on the witness stand? These are all factors that a litigator will take into consideration before filing an adversary.
An adversary is just another term for lawsuit where two parties argue their opposing views before the judge. As the Bankruptcy Court, judge and trustee will have no problem holding you accountable for actions during the bankruptcy,the advesary action is a way to hold the creditor accountable for their actions. Since the begining of credit. some creditors have taken advantage of debtors. These actions often times violate the law at some level. Take for instance collection agencies. It is against the law to speak to someone if that creditor knows that the debtor is represented by an attorney or to call between the hours of 9 pm and 8 am. Do some collection agencies violate this federal law? Every day of the week. The same may be said for creditors who attempt to collect a debt during and after the bankruptcy. They know full well it is against federal law but they continue their actions just the same.
Class Action(a great film by the way), 1991 legal thriller staring Gene Hackman and Mary Elizabeth Mastrantonio, looked at the cost benefit analysiswhen analysing bad behavior. In this particular film the lawsuit was a class action against a car manufacturor who produced vehicles with exploding gas tanks during a collision. The evidence showed that this car manufacturor placed a value on human life and injury. They then weighed that cost against the cost of designing a gas tank that did not explode upon impact. The powers that be decided it was more cost effective to take a chance with human lives and pay out any settlement as opposed to do things the right way. The same is true in the credit and collection industry. Some creditors and collectorswill break the law every day of the week because in the end they know it is more cost effective to break the law instead of following the law.
How can you benefit from this pattern and practice? If a creditor violates the law during your bankruptcy case or after your case is completed,you can sue them. Sometimes the lawsuit will result solely in the creditor behaving and following the law. Other times the lawsuit will not only make the creditor behave but will make the creditor pay you damages for violation of the law. Do you automatically receive money? No. Does every case where a violation occurs get filed? No.
There is nothing in the Bankruptcy Code or other sources of law that states that your attorney must file a lawsuit on your behalf. If you are uncooperative, if you are not willing to assist in your own case or if you do not have clean hands coming into the lawsuit, than more than likely an attorney will not file your case. So what can you do to assist your attorney with filing a lawsuit on your behalf?
First and foremost is thatfacts and evidence are critical when filing any type of lawsuit. If you are being harassed on the phone by a creditor keep a log. Pete Barry, an FDCPA attorney out of Minneapolis, gives out his creditor call logs for free here. Print this log and keep it by the phone. Take down as many details about the collection call as possible. Keep in mind you want clean hands going into this lawsuit. Meaning don’t provoke bad behavior on the phone call. I advise my clients to get the name or id of the caller, what company they are collecting from, which debt are they calling about, is this call being recorded and update the creditor that they are represented and in a bankruptcy. Then if the creditor continues on they may hang up or if they can keep their blood pressure down continue the call as the creditor continues to violate the law.
If you are receiving collection letters, keep the letters as well as the envelopes. In fact I advise the client to not open the letters but rather bring them to me. This way I can ensure that the letters and/or envelopes do not get lost. If you are served with a lawsuit bring that paperwork to your attorney right away. Asking an attorney what the piece of paper is without sending the paperwork first to the attorney is the same as asking a physician to diagnosis a patient withno medical person viewing the patient first hand. It wastes your time and the attrorney’sso send the paperwork and then call to ask what it is.
Make contemporaneous notes. This means as soon as you get off that collection call, receive that lawsuit paperwork or view that envelope, write down how you are feeling. Explain in your own words about how the actions are affecting your everyday living experience. Who else did the creditor’s actions affect? Family members, friends, and or your employer? The attorney cannot read your mind. By keeping a journal of what is taking place during your creditor harrasment you will have a complete record of events to reflect upon. A successful lawsuit is one that is based on facts, lots of them.
Facts are the foundation of any case. The more legitimate facts you have the stronger foundation you have to file a case. The flip side to this is you can have the strongest case in the world in your eyes but if you enter an attorney’s office stating I know I have a million dollar case because I researched everything on the Internet, I can almost guarantee you that attorney will not file your case. Why? Because you have a pre-conceived notation of what you want and you will not be happy with anything less.
The best litigation clients are those who want the creditor to behave, who take excellant notes and those who listen to the direction of their attorneys. Do these litigation clients receive money? Some will receive damages in the amount of money and sometimes those damages are enough to reimburse the client for the cost of their bankruptcy and then some. But I can tell you first hand, everyone of my clients that I was able to win money for all had an expectation at the begining that the goal of the lawsuit was to stop the violation. Any award above beyond that action was icing on the cake. Their expectations were reasonable so the any settlement was a good settlement to them. This reminds me of what pilots say. Any landing that you can walk away from is a good landing.
Remember that knowledge is power and the more knowledge you have about preparing for the litigation the more power you will have to sue the creditors for their violations of the law.