If, after you file for bankruptcy, a creditor continues its collection actions against you, the creditor may be violating bankruptcy's automatic stay.
If, after you file for bankruptcy, a creditor continues its collection actions against you, the creditor may be violating bankruptcy’s automatic stay. Read on to learn when collection activities violate the stay and what you can do if a creditor continues to collect a debt in violation of the automatic stay.
Bankruptcy's Automatic Stay
When you file for bankruptcy, the automatic stay prohibits almost all collection activity, including legal action, garnishment, and even contact by phone or mail in an attempt to collect a debt.
While the automatic stay is very broad and applies to nearly every attempt to collect on a pre-bankruptcy debt, there are a few exceptions. For instance, the automatic stay does not stop criminal cases, some child support actions, and certain eviction cases. The automatic stay does not apply to debts incurred after the bankruptcy case was filed. It is important to know whether the automatic stay applies to the collection action.
To learn more about the automatic stay, see the articles in our Bankruptcy’s Automatic Stay area.
When Collection Violates the Automatic Stay
If an exception to the stay does not apply, and the bankruptcy court has not terminated or modified the automatic stay order, then a collector's attempt to collect a pre-bankruptcy debt is likely a violation of the automatic stay.
What to Do If a Creditor Violates the Automatic Stay?
You have several options if a creditor continues its collection actions against you in violation of the automatic stay.
Tell the creditor about your bankruptcy. Typically, informing the collector of the bankruptcy protection will cause the collector to correct its violation. Many times the collector is unaware
of your case (through error or negligence) and will stop collecting and correct its violation. For instance, if a collector garnishes your wages after the bankruptcy case is filed, it must immediately return the money.
Notify the bankruptcy court. If the collector does not stop and correct its violation, the next step is to notify the bankruptcy court. The court can sanction the collector for violating its automatic stay order if the collection action is "willful." The action is willful if:
- the automatic stay order was in force and was actually violated
- the collector knew of the bankruptcy case and either ignored the court's order or failed to immediately correct its action after learning of the bankruptcy case, and
- the collector intentionally acted.
A violation of the automatic stay does not depend upon the collector's intent to violate the stay order, only that the collector intended to start or continue collecting in violation of the order.
Generally, the court can sanction a violation of the automatic stay under its power of contempt (because the creditor violated the court's order). The court can impose fines, assess attorney's fees, and order the collector to pay damages. Punitive damages are not available.
File a lawsuit. If a collector continues to collect violates the automatic stay, it may also violate other state or federal laws including:
- state unfair trade practice laws
- the federal Fair Debt Collection Practices Act
- state fair debt collection practices laws, or
- the Fair Credit Reporting Act.
In order to collect penalties or damages under another law, you’ll have to file a separate lawsuit.
(To learn more about the Fair Debt Collection Practices Act, see What to Do If a Bill Collector Crosses the Line? )