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State Court Automatic Stay violation?
Vicki:
Unfortunately, this is all too common, where a state court judge wants to maintain control of his calendar by requiring a status report on the defendant's bankruptcy case, even though requiring the creditor's counsel to come to court to report on the defendant's bankruptcy case is a technical violation of the stay. I am representing a creditor in a case in San Jose in which the Debtor defendant has been in Chapter 13 for four years, and every six months I appear (telephonically, thank goodness) to advise the Court that the Chapter 13 is still pending. My client doesn't want to dismiss the case and face statute of limitation issues if the Chapter 13 gets dismissed.
I had one case in LASC - Santa Monica a few years ago in which I represented the debtor who had filed bankruptcy. I filed a Notice of Stay in the Superior Court. No one appeared at the Case Management Conference and the judge issued an OSC ordering me to appear and advise of the status of the bankruptcy. I filed a Response to the OSC respectfully advising the judge that he wasn't allowed to do that, and appeared at the OSC, at which time the judge (sort of) apologized. Luckily the Santa Monica Courthouse is only 10 minutes away.
I really don't think it warrants the effort to seek an injunction against the Superior Court in the District Court. You'll find that a lot of collection attorneys dismiss their cases without prejudice after they get the bankruptcy notice.
Jim
James R. Selth
Certified Bankruptcy Specialist*
Weintraub & Selth, APC
11766 Wilshire Boulevard, Suite 1170
Los Angeles, California 90025
Telephone: (310) 207-1494
Facsimile: (310) 442-0660
E-Mail: jim@wsrlaw.net
*Certified by State Bar of California as Certified Legal Specialist in Bankruptcy Law
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Debtor filed ch 7 on June 6, 2012. Notice of the Automatic Stay was faxed and mailed to
plaintiff and mailed to the court - LASC (Central DIst - Unltd. juris). Plaintiff's state ct.
is for damages for breach of fiduciary duty but not fraud.
I got a minute order from the court where the judge set a status conf. re: bankruptcy
and requesting plaintiff's counsel to answer a bunch of issues, including whether he'll
file a creditor's claim or intends to seek relief from the stay. The hearing is set for after
the 341(a).
Should I just ignore this or try for an injunction in the district court?
(I'm reading emails, even though still 'on vacation') so all help appreciated.
Than you,
Vicki
Vicki L. Temkin
Law Office of Vicki L. Temkin
15021 Ventura Blvd., Ste. 753
Sherman Oaks, Ca 91403
Ph:(818) 501-4658 /Fx:(818) 501-0903
www.vtemkinlaw.com
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