The first time a creditor contacts you, give them the benefit of the doubt and assume it was a mistake. A polite letter sent using certified mail with return receipt requested both gives the creditor direct notice and provides you with solid evidence if they continue to contact you.If you receive a phone call, tell the caller politely that you have filed for bankruptcy and it is illegal for them to contact you. Then hang up the phone.
It's up to you whether to send a letter or talk to an attorney if you keep getting phone calls after that.
On the other hand, if you get an email or letter in the mail, sending a written response should take care of the situation.
Draft a brief letter stating that you've filed for bankruptcy and all creditors are subject to an automatic stay that prevents them from contacting you. Let them know that if they contact you again, you will file a motion for sanctions in bankruptcy court.
Attach a copy of the letter or email you received, as well as a copy of the bankruptcy court notice that was sent to your creditors, if you have one.
Keep in mind if you already have an attorney, this letter should come from your attorney, not directly from you.;
, A motion for sanctions is considered an interlocutory motion. This means that although it is related to your bankruptcy, the courts treat it as a separate case in and of itself.For this reason, if you have not hired an attorney to represent you in your bankruptcy proceeding, you probably want to talk to one about the violation of your automatic stay.
You can hire an attorney for limited scope representation. That attorney would only represent you for the purposes of the motion for sanctions but not in any other part of your bankruptcy.
Even if you have an attorney for your bankruptcy proceeding, you may want to hire someone else to focus on the violation proceeding – particularly if the creditor who violated the stay has been very aggressive.
In this case, the violation proceeding could get complex and nasty, demanding more time and energy than your main bankruptcy attorney has available.
As part of your damages for the violation, you can get an award of attorney's fees from the creditor, so don't worry about being able to pay the attorney.
 Before your attorney can draft your motion for sanctions, he or she will need to know exactly what has happened with the creditor. To successfully report a violation of an automatic stay, you'll need proof that the creditor contacted you.Tell the attorney exactly what happened, including any phone calls or emails you received from the creditor.
If you contacted the creditor at any time to tell them not to contact you because you had filed for bankruptcy, let your attorney know that. If you sent the creditor a letter, provide your attorney with a copy.
Keep in mind that even emails from the creditor that were automatically generated by their computer system still constitute contact. The creditor has the responsibility of making sure those emails are stopped. No contact means no contact in any form, for any reason.
 An automatic stay is a court order, and the court may punish violations with substantial fines. You can even get damages for emotional distress you suffered as a result of the creditor's actions. To enforce the court's order you must draft a motion describing the creditor's conduct to the court.You may be familiar with standard court documents such as the petition you filed to start your bankruptcy proceeding. A motion for sanctions, however, is formatted differently. It reads more like an article or an essay than the more procedural court documents.
Motions for sanctions typically include long paragraphs that detail the facts of what happened and explain how those facts show that the creditor violated your automatic stay.
In some cases, motions for sanctions can be many pages long. This is why the bankruptcy court does not provide forms for this motion, and why you typically should not attempt to write one on your own.
Your attorney will go through the motion with you before it's filed to make sure all the facts are accurate. If there's anything you don't understand or that you believe should be added, don't be afraid to speak up.
 Once your motion for sanctions is complete, it must be filed with the bankruptcy court that is in charge of your original bankruptcy case. The court will set a hearing date on which you and your attorney will present your motion.Your attorney will take care of the filing and pay any filing fees required for the motion.
Make sure you get a copy of the filed motion to keep for your own records.
Keep in mind that this filing fee can be added to the costs that you can claim from the creditor if the court agrees with you that they violated your automatic stay.
 A motion for sanctions is like a mini-lawsuit, and the creditor you allege violated your automatic stay must have legal notice of your motion and an opportunity to respond to your allegations.Typically your attorney will take care of this process. Service usually is completed by having a U.S. marshal hand-deliver the motion along with any other court papers to the creditor you allege violated your automatic stay.
In some cases, you may be able to complete service by mailing the motion to the creditor using certified mail with return receipt requested. This method typically is used if the creditor (or the creditor's agent for purposes of service of process) is located out of state.
Once the creditor is served, your attorney will file a proof of service document with the court. If the creditor files a written response to your motion, it will be served on your attorney.
 As a matter of course, a creditor cannot violate an automatic stay unless an automatic stay was in place. Therefore, you must prove that your bankruptcy was filed and an automatic stay was entered.While this may seem unnecessary to you, it's an essential part of proving the creditor violated your automatic stay.
Keep in mind that any bankruptcy court judge has a large number of cases going on at once. Depending on where you are in the process, the judge may never have seen your file.
Typically you prove that you've made the filing by attaching a copy of your bankruptcy petition to the motion itself. The case number assigned to your petition also will be noted on the motion.
 Proving a violation of an automatic stay hinges on whether the creditor who contacted you had sufficient notice of your bankruptcy. Either direct or indirect notice is acceptable, although evidence of direct notice is stronger.An automatic stay is truly automatic, in the sense that it begins the moment you've filed your bankruptcy petition.
However, the law only punishes creditors for willful violation of the automatic stay. This means you must prove the creditor knew about the automatic stay.
An example of indirect notice would be the notice the creditor received about your meeting of creditors.
Ideally, however, you notified the creditor immediately the first time they contacted you and told them you had filed for bankruptcy. If you did this in writing, you can show the court the letter that was sent to the creditor.
If they continued to contact you even after they received your letter, they will have a hard time arguing that they did not willfully violate your automatic stay.
 Some debts, such as those that you've excluded from your bankruptcy, are not subject to the automatic stay. To prove a violation of an automatic stay, you must show that the creditor was subject to the stay in the first place.This is more of an issue if you're filing a Chapter 13 bankruptcy than if you're filing a Chapter 7. However, it still is possible to reaffirm certain debts, such as your home mortgage or your car loan, so that you don't lose those properties as a result of the bankruptcy.
You should be aware that certain types of debt, such as child support arrears or student loan payments, cannot be discharged in bankruptcy.
If the creditor in question holds one of these types of debts, they cannot be guilty of violating the automatic stay because the stay doesn't apply to them.
 If the creditor contacted you in writing, you can use these documents as evidence. A creditor also can violate an automatic stay by calling you, or visiting you in person.In some cases, a creditor will harass a debtor by continually sending representatives to their house or calling them on the phone.
If that has happened to you, it may be necessary to take the stand to testify regarding the actions the creditor has taken.
Witnesses can he helpful here. For example, if you had a wage garnishment when you filed for bankruptcy, and the creditor has been continually calling your employer to insist on the wage garnishment, someone from your employer's payroll office may testify regarding that contact.
You also may want to call family members if they were witness to harassing phone calls or personal visits from representatives of the creditor. This testimony also can be used to help prove emotional distress.
 If you take the stand, your description of the creditor's behavior can be crucial – particularly if you are claiming punitive damages or damages for emotional distress as a result of the creditor's violation.While any contact is enough to establish a violation of an automatic stay, some actions by creditors are worse than others.
If the creditor's behavior was nasty or abusive, and you can establish a pattern of harassment, you may be able to get additional money in the form of punitive damages or damages for emotional distress cause by the creditor's harassment.
Keep in mind that any recovery you get here must be included as assets in your main bankruptcy proceeding, and might affect what debts you can get discharged.
 If you've shown the creditor violated your automatic stay, any action they completed is void. In addition to voiding that action, you may be entitled to significant damages, including costs and attorney's fees.Costs and attorney's fees are fairly easy to prove – your attorney will simply submit a bill to the court.
Any act committed by the creditor in violation of the automatic stay is void. For example, if the creditor who was holding your car note repossessed your car, they would have to give your car back to you.
Punitive damages or damages for emotional distress typically are proven by legal argument and testimony from you and other witnesses to the creditor's behavior.
 Typically an automatic stay continues until your bankruptcy is discharged. But if the court has ruled your automatic stay will be in effect for a shorter period of time, you may want to ask that it be extended.For example, if you filed a bankruptcy case that was dismissed, you only get a 30-day automatic stay if you file another bankruptcy case within a year of that dismissal.
Even though the process of asking the court to extend your automatic stay is fairly simple, you may want to consult an experienced bankruptcy attorney if you have questions regarding the length of the automatic stay imposed by the court.
An attorney's advice will be particularly helpful if you are refiling following an earlier dismissal. Although bankruptcy is a right, this right is significantly curtailed if it seems by your actions that you are abusing the system.
 If you've hired an attorney, he or she will draft your motion for you. If you are representing yourself, you can find forms on the bankruptcy court's website that you can use to ask the court to extend your automatic stay.On the form, you'll have to provide information about your bankruptcy case, the length of your automatic stay, and the reason you're asking the court to extend it.
If you were only granted a 30-day automatic stay because you had a previous bankruptcy that was dismissed, you must explain to the court the reason that first case was dismissed.
You also must demonstrate that this subsequent bankruptcy was filed in good faith, and not as a means to delay or attempt to defraud your creditors.
Keep in mind that not all jurisdictions have standard forms. If your jurisdiction does not, you may use a form from another jurisdiction as a guide, but check the local rules of your jurisdiction to make sure your motion complies.
 Take your motion and copies to the clerk of the bankruptcy court where your bankruptcy petition was filed. The clerk will notify your creditors that you've filed the motion so they have the opportunity to oppose it.In many jurisdictions, you must first request a hearing date from the court before you file your motion.
A motion to extend an automatic stay must be heard before the date that your automatic stay expires, so time is of the essence.
There typically is no filing fee for this motion, but you may want to check with the clerk to be sure. If a filing fee is required, you must pay it when you file your motion.
When you file your motion, take your original motion and at least one copy. You'll want to keep the copy for your own records.
 In some cases, the judge will not need to hold a hearing to consider your motion. However, if any of your creditors oppose extending your automatic stay, you must attend a hearing in bankruptcy court to argue your motion.If none of your creditors object, the court may simply grant your motion and take your hearing off the court's calendar.
Otherwise, you need to show up in court to explain to the judge why you believe your automatic stay should be extended. If you don't show up for a scheduled hearing, your motion may be denied.
If you have an attorney, talk to him or her about whether you need to attend the hearing personally. Your attorney may not need you to come unless your testimony is required.
Send a letter to the creditor.
Consult your attorney.
Gather documentation.
Draft a motion for sanctions.
File the motion.
Have the creditor served.
Identify your bankruptcy.
Show the creditor had notice of your bankruptcy.
Demonstrate the debt was included in your bankruptcy.
Introduce evidence that the creditor contacted you.
Describe the creditor's behavior.
Provide evidence to support your claim of damages.
Determine if you need your automatic stay extended.
Draft your motion.
File your motion.
Attend your hearing.
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