Stay Violations - Motion or Adversary?
Posted: Tue Aug 13, 2013 2:07 pm
On Mon, Aug 12, 2013 at 2:27 PM, Nicholas Gebelt wrote:
> **
>
>
> Dear Link,****
>
> ** **
>
> As you know, I gave my thoughts on this topic a few days ago. I will add
> that since bankruptcy ethos favors quick settlement rather than a pitched
> battle, a motion is preferable, unless you are looking for money (isnt
> everyone?) and have a judge that insists on applying Fed. R. Bankr. Proc.
> 7001(1). Motions are cheaper and less complicated. However, if you
> anticipate an acrimonious dispute, then an adversary proceeding makes it
> clear that you are prepared for gladiatorial combat. ****
>
> ** **
>
> *Important Caveat: *Keep in mind the holding in *Sternberg v. Johnston*,
> 595 F. 3d 937, 949 (9th Cir. 2010) (actual damages under 362(k)(1) do
> not include fees incurred in prosecuting the adversary proceeding to obtain
> damages). Thus, if you elect to use an adversary proceeding, and it drags
> on after the malefactor has stopped the violation, your client will be the
> one to pay you for the work you do after the violation has ceased. If your
> client is impecunious, youll be working on a *pro bono* basis.****
>
> ** **
>
> All the best,****
>
> ** **
>
> Nick****
>
> ** **
>
> *Nicholas Gebelt*
>
> ** **
>
> Nicholas Gebelt, Ph.D., J.D.****
>
> Attorney at Law****
>
> Certified Bankruptcy Law Specialist****
>
> ** **
>
> [image: Description: Description: Description:
> cid:image003.jpg@01CC076B.B14D73C0]****
>
> ** **
>
> Law Offices of Nicholas Gebelt****
>
> 15150 Hornell Street****
>
> Whittier, CA 90604****
>
> Phone: 562.777.9159****
>
> FAX: 562.946.1365****
>
> Email: ngebelt@goodbye2debt.com; ngebelt@gebeltlaw.com****
>
> Web: www.goodbye2debt.com****
>
> Blog: www.southerncaliforniabankruptcylawblog.com/****
>
> ** **
>
> *Important notice required by 11 U.S.C. 528:* We are a debt relief
> agency. We help people file for bankruptcy relief under the Bankruptcy Code.
> **
>
> ** **
>
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> *Representation Note*: If you have not signed a contract of
> representation, the Law Offices of Nicholas Gebelt do not represent you,
> and this email does not contain any legal advice for you.****
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> *IRS Circular 230 Disclosure: *In order to comply with the requirements
> imposed by the Internal Revenue Service, we inform you that any U.S. tax
> advice contained in this communication (including any attachments) is not
> intended to be used, and cannot be used, for the purpose of (i) avoiding
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> ** **
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Link Schrader
> *Sent:* Monday, August 12, 2013 11:54 AM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* [cdcbaa] Stay Violations - Motion or Adversary?****
>
> ** **
>
> ****
>
> I've been looking at lots of different comments and rules on stay
> violations. From the experience of our CDCBAA members is it better to file
> for sanctions in an OSC motion (or other motion) or to file an adversary
> for an injunction, specific performance, and damages?
> ****
>
> *Link Schrader, Attorney*****
>
> Law Office of Link W. Schrader****
>
> Mail: P.O. Box 3723, Tustin, CA 92781****
>
> Office: 106 W. 4th Street, Suite #308, Santa Ana, CA 92701****
>
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924****
>
> Fax: (310) 878-4158; www.schrader-law.com****
>
>
> ______________________________________________________________________________________________________
> ****
>
> *This communication and any files transmitted with it contain information
> which is confidential and may be privileged and exempt from disclosure
> under applicable law. It is intended solely for the use of the individual
> or intended recipient. You are hereby notified that any use, dissemination
> or copying of this communication is strictly prohibited. If you have
> received this communication in error, please notify the sender. Thank you
> for your cooperation.*****
>
> ** **
>
> *Link Schrader, Attorney*****
>
> Law Office of Link W. Schrader****
>
> Mail: P.O. Box 3723, Tustin, CA 92781****
>
> Office: 106 W. 4th Street, Suite #308, Santa Ana,****
>
> CA 92701****
>
> Office: (714) 542-5922; Mobile/Text: (310) 413-6924****
>
> San Diego: (619) 952-8342; Fax: (310) 878-4158****
>
> www.schrader-law.com****
>
>
> ______________________________________________________________________________________________________
> ****
>
> This communication and any files transmitted with it contain information
> which is confidential and may be privileged and exempt from disclosure
> under applicable law. It is intended solely for the use of the individual
> or intended recipient. You are hereby notified that any use, dissemination
> or copying of this communication is strictly prohibited. If you have
> received this communication in error, please notify the sender. Thank you
> for your cooperation.****
>
> ** **
>
> ****
>
>
>
On Mon, Aug 12, 2013 at 2:27 PM, Nicholas Gebelt <ngebelt@gebeltlaw.com> wrote:
Dear Link,
As you know, I gave my thoughts on this topic a few days ago. I will add that since bankruptcy ethos favors quick settlement rather than a pitched battle,
a motion is preferable, unless you are looking for money (isnt everyone?) and have a judge that insists on applying Fed. R. Bankr. Proc. 7001(1). an acrimonious dispute, then an adversary
proceeding makes it clear that you are prepared for gladiatorial combat.
Important Caveat:
Keep in mind the holding in
Sternberg v. Johnston, 595 F. 3d 937, 949 (9th Cir. 2010) (actual damages under
362(k)(1) do not include fees incurred in prosecuting the adversary proceeding to obtain damages). Thus, if you elect to use an adversary proceeding, and it drags on after the malefactor has stopped the violation, your client will be the one to pay you
for the work you do after the violation has ceased. If your client is impecunious, youll be working on a
pro bono basis.
All the best,
Nick
Nicholas Gebelt
Nicholas Gebelt, Ph.D., J.D.
Attorney at Law
Certified Bankruptcy Law Specialist
Law Offices of Nicholas Gebelt
15150 Hornell Street
Whittier, CA 90604
Phone: 562.777.9159
FAX:ank">562.946.1365
Email:
ngebelt@goodbye2debt.com;
ngebelt@gebeltlaw.com
Web:www.goodbye2debt.com
Blog:www.southerncaliforniabankruptcylawblog.com/
Important notice required by 11 U.S.C. 528:
We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
Confidentiality Note: entity to which it is addressed and may contain information that is privileged, confidential, or otherwise protected from disclosure. Dissemination, distribution, or copying of this e-mail or the information herein by anyone other than the intended recipient,
or an employee or agent responsible for delivering the message to the intended recipient, is prohibited. If you have received this e-mail in error, please notify us immediately at 562.777.9159 or e-mail
info@gebeltlaw.com and destroy the original message and all copies.
Representation Note: the Law Offices of Nicholas Gebelt do not represent you, and this email does not contain any legal advice for you.
IRS Circular 230 Disclosure:
In order to comply with the requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments)
is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue code, or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
On Behalf Of Link Schrader
Sent: Monday, August 12, 2013 11:54 AM
To: cdcbaa@yahoogroups.com
Subject: [cdcbaa] Stay Violations - Motion or Adversary?
I've been looking at lots of different comments and rules on stay violations. From the experience of our CDCBAA members is it better to file for sanctions in an OSC motion (or other motion) or to file an adversary for an injunction, specific
performance, and damages?
Link Schrader, Attorney
Law Office of Link W. Schrader
Mail: P.O. Box 3723, Tustin, CA 92781
Office: 106 W. 4th Street, Suite #308, Santa Ana, CA 92701
Office: (714) 542-5922; Mobile/Text: (310) 413-6924
Fax: (310) 878-4158;
www.schrader-law.com
____________________
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