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Bankruptcy Law/bk question again

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Expert: - 2/9/2009


Question
hi

you answered a question for me about a month ago.. we rented a house, landlord in foreclosure and claims to be filing bankruptcy, wont return security.

he had filed a motion to dismiss (our small claims against him), based on the fact he claimed to be filing a BK.

however, i noticed on the motion, he didnt put a docket#. so...

i called his "lawyer" where they responded with "I dont think we have them as a client"... and..

i signed up and checked PACER, and sure enough.. no record of them whatsoever (nor as us as a creditor in any BK proceeding).

so...it appears to be another one of their lies.

they cant do that right?  dont you have to have a case actually filed to claim the automatic stay of BK?  (otherwise what would stop ANY defendant from saying "yea sure, im filing BK".

our small claims case will be heard wednesday, so i plan on objecting to the dismissal, and proceding with the hearing.  

Answer
You are doing exactly what I would do. Explain to the judge what you have done to exercise every possible due diligance to discover his case number. I would also ask the court punish him because he filed a false and frivilous dismissal motion, and to award damages in your favor because the false dismissal motion is a willful and malicious abuse of process.

Good luck.

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Los Angeles Bankruptcy Lawyer Leon D. Bayer

Expertise

Leon Bayer has successfully represented clients in bankruptcy for over 30 years. He is frequently called upon by the media, the California Bar and other associations to provide insight and help educate attorneys on bankruptcy issues. If you or other readers want to keep up with my blog postings about life in and out of bankruptcy, you can follow my blog at http://www.bankruptcyblogger.org/ and my personal web site at http://www.debt-relief-bankruptcy.com and A Human Guide to Bankruptcy at http://www.thebankruptcyguide.net/ Leon also writes about bankruptcy law for Nolo, see http://www.nolo.com/law-authors/leon-bayer.html and his "Ask Leon" bankruptcy law blog column at http://blog.nolo.com/bankruptcy/

Experience

Leon is a Certified Specialist in Bankruptcy Law by the State Bar of California, and has been a practicing bankruptcy lawyer in Los Angeles, California for 33 years.

Organizations
National Association of Consumer Bankruptcy Lawyers, California Bar Association, Los Angeles County Bar Association.

Publications
Author, ?The Essentials Of Chapter 13,? Daily Journal Report, December 18, 1987.
Contributing Editor, Basic Bankruptcy, California Practice Handbook, Matthew Bender 1992, 1993.
CEB Consultant, CEB-Personal and Small Business Bankruptcy Practice in California, 2003.


Education/Credentials
B.A., J.D.

Awards and Honors
President, 1995-1996-Los Angeles Bankruptcy Forum; Member - Los Angeles County Bar Association Committee on Commercial Law & Bankruptcy, 1988. Law Advisory
Commission-Personal & Small Business Bankruptcy Law of the State Bar of California, 1996-2000

MR. BAYER SAYS: The big banks and credit card companys have been working overtime for many years to undermine the Consitutional right of the American people to be able to claim bankruptcy protection. In 2005 the banking lobby successfully convinced Congress and the President to make the laws and proceedures more complicated, hopeing that it will stymie legitimate people from filing bankruptcy. They succeeded in gaining these complex new legal proceedures by greasing the legislative system with hundreds of millions of dollars in "campaign contributions." The good news for the American people is that while the new laws have made the proceedures needlessly complex to the point where inexperienced people can't help but trip over the maze of new rules and regulations, the process is still doable, especially with a lawyer who is well trained and experienced in this specialty.

Past/Present Clients
I have probably handled something on the order of about 15,000 bankruptcy cases thropughout my career.

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