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The Automatic Stay: But What If a Creditor Violates This Potent Legal Protection?

Filing bankruptcy provides several protections to debtors, including the automatic stay. This is an automatic injunction that begins the moment the bankruptcy petition is filed, prohibiting creditors to collect debts from someone who has declared bankruptcy. In addition, an automatic stay immediately stops most civil lawsuits filed against you, prevents the disconnection of water, electric, gas, or telephone, and it stops foreclosure proceedings. And if you are being evicted from your home, the automatic stay might provide some temporary help.

With the protections it offers, what should you do when credit companies ignore or try to get around the automatic stay?

First, it is important to determine whether the violation was deliberate or accidental. Even though it is meant to prevent creditors from taking certain forbidden actions, sometimes they still do. There may be many reasons for this, but most often it is just a timing issue or their lack of knowledge of the law. If a creditor violates the stay in a purposeful effort to thwart the bankruptcy code, the creditor can be held accountable for violating the automatic stay. It is essential to find out if creditors received legal notice of automatic stay upon bankruptcy filing.

Inform the creditor of your bankruptcy

This generally gets the creditor to correct its violation. If they don’t, the next step is to notify the bankruptcy court. The court can endorse a violation of the automatic stay under its power of contempt since the creditor violated the court’s order. The court can impose fines, gauge attorney’s fees, and require the creditor to pay damages.

Can a creditor try to lift the stay notice?

Since the automatic stay isn’t definite or unchangeable, creditors can ask the court to remove the stay which then allows collection efforts to resume. If lifting the automatic stay is granted, the creditor is free to continue pursuing its debt. Thankfully it is uncommon for multiple creditors to file motions to lift the stay, and even one or two doesn’t happen that often. In the event a motion is filed, it is the burden of the creditor to convince the court that there is a valid reason to lift the stay.

When should you file a lawsuit?

If a creditor continues to collect in violation of the automatic stay, it is time to file a lawsuit. If at any time you think a debt collector has crossed a line or violated an order, consider talking to an attorney to get advice about your options and whether your case merits a potential lawsuit.

In each of the above scenarios a debtor would benefit greatly with a bankruptcy attorney. That is the best choice to help figure out how to proceed, to ensure you’re protected, and that all your options are explored.

This article should not be taken as legal advice. If you’re considering bankruptcy or another legal debt relief option, you need to consult an attorney for guidance. If you’re in New Jersey and seeking legal assistance, we can help you.

Brenner Spiller & Archer, LLP is a New Jersey law firm that is dedicated to helping families find relief from the burden of debt and other financial woes. For more than 35 years, our bankruptcy lawyers have provided effective guidance on all debt relief matters to clients throughout Central and South Jersey.

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4 Steps to Complete a Short Sale

Image of a person handing keys to another person.A short sale occurs when a lender or mortgage company agrees to accept less money than the outstanding mortgage to satisfy a debt. Short sales can be beneficial for both parties in a mortgage since it is typically in the interest of the property owner and the lender to avoid foreclosure.

Since a lender will receive less money than the outstanding loan amount in a short sale, many prospective clients wonder why lenders would agree to short sales. The answer is that lenders will usually lose more money in the foreclosure process than they would lose in a short sale.

Lenders do not like managing and owning foreclosed property, which can be costly. Short sales usually save lenders and property owners time and money. In order to complete a short sale, the property owner must take the following steps:

  1. Contact an attorney to gather and draft documents to submit to the mortgage company.
  2. Contact a realtor to find a buyer for the property at the current market price.
  3. The realtor must find a bona fide purchaser for the property at the current market price.
  4. Submit the short sale offer and purchase agreement to the lender.

Short sales are generally more complicated and time-consuming than the average real estate sale. If you are considering a short sale or another option for saving your home from foreclosure, it is in your best interest to hire an experienced bankruptcy lawyer to guide you through the process.

This article should not be taken as legal advice. If you’re considering a short sale, foreclosure, or another legal option, you need to consult an attorney for guidance. If you’re in New Jersey and seeking legal assistance, we can help you.

Brenner Spiller & Archer, LLP is a New Jersey law firm that is dedicated to helping families find relief from the burden of debt and other financial woes. For more than 35 years, our bankruptcy lawyers have provided effective guidance on all debt relief matters to clients throughout Central and South Jersey.

Click here to schedule a free consultation with our trusted bankruptcy attorneys.

New Jersey Sues OxyContin for Fraud

new jersey sues oxycontinA lawsuit against Purdue Pharma has been filed by the State Attorney General’s office, claiming the OxyContin manufacturer practiced deceptive marketing. OxyCodone, sold by Purdue under the brand name OxyContin, is a narcotic used to treat moderate-to-severe pain and known for being highly addictive.

State Attorney General Christopher Porrino is accusing Purdue Pharma of making dishonest claims about its pain-relieving drug. The suit alleges Purdue spread the idea that chronic pain is under-treated and that OxyContin should be the main treatment option for chronic ailments even through the drug lacks any studies over 12 weeks.

Purdue Pharma confirmed October 26th that federal prosecutors in Connecticut are investigating allegations that the company distorted the health risks of opioid painkillers.

The New Jersey lawsuit also implies OxyContin has been a major factor in the state’s rising opioid addiction crisis, charging Purdue with the creation of a “public nuisance.”

“As a company grounded in science, we must balance patient access to FDA-approved medicines, while working collaboratively to solve this public health challenge,” Purdue announced in a statement denying the accusations. “We are deeply troubled by the opioid crisis and we are dedicated to being part of the solution.”

Sales representatives from Purdue Pharma were reportedly required to meet a 7 to 8-visit quota per day to doctors in New Jersey. The company has generated over $35 billion in sales since it’s debut, with current annual revenues mostly from the sale of OxyContin.

In 2015, the U.S. Centers for Disease Control and Prevention found that more than 52,000 Americans were killed by drug overdoses. Most of these overdoses involved prescription opioids like OxyContin.

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