Yes CA residents- everything community property. This goes to my
point, that even though joint debtor w received her discharge already
in the same Chapter 7 case, husband has not. Thus all postpetition
acquired community property and H's separate property is still
protected by the automatic stay 2 years later and until the 727
action is resolved. His postpetition earnings and most importantly
bank accounts are still protected by the stay. The IRS sending H a
notice of intent to levy his assets for a prepetition obligation is
itself a violation of section 362(a)(6) in that it is an act to
collect, assess, or recover a prepetition claim against the debtor.
The IRS should know better, but somebody there could not comprehend
that the joint debtor w was discharged, while debtor h's discharge is
still pending. One letter of explanation after the first notice of
intent to levy should have been enough. Now they issued another. It
has upset my client. He is worried that they will clean out his
accounts and seize other assets, or try to garnish his wages, all of
which he needs to support his family and pay me for representation in
the 727 action. Although I explain to him the automatic stay is
still in effect and the IRS cannot levy his assets while it remains
in effect, he naturally is concerned about continuing to receive
notices from the IRS. He is not supposed to be subjected to any of
these concerns by the IRS while the automatic stay is in effect, and
I should not have to spend my time calming down the client and firing
off communications to the IRS telling them to cease and desist.
Now that the IRS has served another intent to levy 7 months after my
prior cease and desist correspondence I am seeking input as to
whether this is enough, even without the IRS actually having levied
yet, to successfully seek contempt sanctions against the IRS for the
stay violations sufficient to cover my time and something extra for
the client to compensate him for his distress. It has already taken
a couple hours of my time in telephone calls and letters, which I
cannot charge to the client and it perturbs me. Has anyone in the
collective brain trust of our organization been successful with such
an action against the IRS?
Mark Jessee
wrote:
>
> Consider that these people are in CA, so everything is probably
community
> property? What is there to levy on if case is still open.
Remember that
> getting a discharge is NOT THE SAME as ending the case. Automatic
stay is
> still in force at least as to property of the estate.
>
>
> David A. Tilem
> Certified Bankruptcy Specialist*
> Law Offices of David A. Tilem (a debt relief agency)
> 206 N. Jackson Street, #201, Glendale, CA 91206
> Tel: 818-507-6000 Fax: 818-507-6800
>
> * Bankruptcy specialist cert. by State Bar of CA Bd of Legal
> Specialization.
> Business bankruptcy specialist cert. by Amer. Bd. of
Certification
>
>
>
Behalf Of
> Mark T. Jessee
> Sent: Monday, April 07, 2008 5:16 PM
> To:
cdcbaa@yahoogroups.com
> Subject: [cdcbaa] IRS Stay violation?
>
>
> H & W file for Chapter 7 pre BAPCPA. W discharged, H still subject
to
> adversary proceeding under 727, so no discharge yet. IRS keeps
> sending out notices of intent to levy to my client and his wife for
> prepetition tax debt. Obviously they can send it to the wife, but
the
> automatic stay is still in effect as to husband. Although the IRS
has
> not actually levied, they appear to be ignoring my communications
> about the automatic stay still being in effect as to H. I sent
notice
> and follow-up communication to Special Procedures in Philadelphia
and
> the local office where the notice of intent to levy was generated.
Am
> I missing something?
>
> One time sending a notice of intent to levy, although technically a
> stay violation merits a cease and desist letter, but is a second
> notice of intent to levy being issued without an actual levy enough
to
> pursue a stay violation sanctions motion and collect more than just
> what the court deems to be "reasonable" attorney fees?
>
> Mark Jessee
>
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