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Consumer Bankruptcy Law and Practice: 9.3.3.6 Filings in Violation of Section 109(g) or a Prior Court Order—Section 362(b)(21)

Another provision of the 2005 Act affects the automatic stay for two subcategories of repeat filers, but only as to the enforcement of real property liens. Section 362(b)(21) of the Code renders the automatic stay inapplicable to enforcement of a lien on, or a security interest in, real property when the debtor is ineligible for relief under section 109(g) of the Code or has filed the case in violation of a prior court order limiting new bankruptcy case filings.

Consumer Bankruptcy Law and Practice: 9.4.2 Legal Proceedings

The stay bars “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case . . .

Consumer Bankruptcy Law and Practice: 8.4 The Meeting of Creditors

8.4.1 Preparation

In many a routine chapter 7 bankruptcy, the only event of any real importance between filing and discharge is the meeting of creditors, sometimes colloquially called the “first meeting of creditors” or the “section 341(a) meeting” in honor of the relevant statutory provision. While it may pose occasional problems, this proceeding is usually routine and uneventful.

Consumer Bankruptcy Law and Practice: 9.6.7 Procedural Issues

One further issue is the best way to go forward procedurally in seeking a remedy for a violation of the stay. Although several courts have held that relief under section 362(k) is available by motion,374 it may be preferable to proceed by complaint pursuant to the adversary proceeding rules, especially if injunctive relief or a contempt remedy is sought.375 This procedure will eliminate any potential issues about the due process rights of the defending party.

Consumer Bankruptcy Law and Practice: 9.7.1 Proceedings Must Be Commenced by Motion

While the scope of the stay is broad and the sanctions to enforce it are powerful, the duration of its protections may be short-lived. A common creditor response to the bankruptcy petition is to file a proceeding seeking relief from the automatic stay. The court may grant relief, upon motion of a party, terminating, annulling,380 modifying, or conditioning the stay. Only the bankruptcy court has the power to grant relief from the automatic stay.381

Consumer Bankruptcy Law and Practice: 9.7.3.1.1 Parties

Normally, any proceeding must include as parties all persons who will be ordered by the court to do something or whose interests will be seriously affected if the action is successful. Thus, both Federal Rule of Civil Procedure 19 and Federal Rule of Bankruptcy Procedure 7019 generally provide that such indispensable parties must be joined. While these rules are not specifically incorporated in Federal Rule of Bankruptcy Procedure 9014, that rule does provide that notice shall be given to the party against whom relief is sought.405

Consumer Bankruptcy Law and Practice: 9.7.3.1.2 Discovery

Either party may take discovery in connection with a motion for relief from stay.417 Although the full range of federal discovery opportunities is available, the short time limits require that discovery be completed with great speed to be meaningful. The normal time period allowed by the rules to provide discovery is in every case too long a period to wait unless the parties agree that the stay can continue pending discovery.

Consumer Bankruptcy Law and Practice: 9.7.3.1.3 Defenses and counterclaims

To the extent there are defenses or counterclaims that reduce or eliminate the right of the party seeking relief from the stay to proceed after the stay is lifted, they should be relevant to stay litigation and raised therein.418 For example, if a debtor claims that a lien does not exist because it was rescinded under the Truth in Lending Act, the stay should not be lifted to permit enforcement of that lien.419 Or, if a debtor’s defenses and counterclaims reduce the balance owing on an automobil

Consumer Bankruptcy Law and Practice: 9.7.3.1.4 Burden of proof

The Code provides that the burden of proof in stay litigation is on the party seeking relief from the stay as to the issue of the debtor’s equity in property and on the party opposing relief on all other issues.426 While this provision is not as clear as it might be, it apparently means that whenever equity is at issue, the party seeking relief must prove it.

Consumer Bankruptcy Law and Practice: 7.3.12 The Chapter 13 Plan

7.3.12.1 Generally

The most important document filed in a chapter 13 case is usually the debtor’s proposed plan. This plan, which only the debtor can propose, sets out how the debtor wishes to reorganize their financial situation. Its purpose, then, is to make clear how the debtor desires payments and distributions to be made in the case. The plan may be modified as of right before confirmation and also, with the court’s permission, after confirmation in certain circumstances.242

Fair Debt Collection: 14.3.2.7 Burden of Proof Regarding Exceptions

The general rule under the TCPA is that the person making the call has the burden of demonstrating that it falls within an exception to one of the TCPA’s prohibitions.172 Accordingly, the caller has the burden of establishing that it had the prior express consent of the called party to make an autodialed or an artificial or prerecorded call to a cell phone.173 This is consistent with the general rule that the party claiming the benefit of an exception in a federal statute has the burden of comin

Fair Debt Collection: 14.3.2.8.1 Private cause of action; relief

The TCPA offers an express private cause of action for actual monetary loss or $500 damages for each violation, whichever is greater.175 The statutory damage award can be trebled if the court finds that the defendant willfully or knowingly violated the statute or regulations.176 Since debt collectors who make illegal calls to a debtor’s cell phone usually make a series of such calls, the TCPA offers the possibility of a significant award even if actual damages are minimal.

Fair Debt Collection: 14.3.2.8.2 Who may sue

Generally, courts permit both the subscriber to sue, as well as the person who carries and regularly uses a cell phone, even though that person is not the subscriber.178 Thus, the person who carries and regularly uses a cell phone may sue, even if someone else is the subscriber.179 The owner of a cell phone also has standing to sue for calls made while the phone was in the possession of an investigator hired by the owner’s attorney.180 A non-debtor

Fair Debt Collection: 14.3.2.9.1 Jurisdiction and class actions

State and federal courts have concurrent jurisdiction over TCPA suits.183 Many courts have generally declined to exercise supplemental jurisdiction over defendants’ counterclaims against TCPA plaintiffs to collect on the underlying debt.184 One of the reasons that courts often cite is that exercising jurisdiction over these counterclaims would contradict federal policy concerns against automated telephone calls.185 However, this view is not univers

Fair Debt Collection: 14.3.2.9.3 Liability of creditors for debt collectors’ violations; corporate officers and individuals

Creditors are liable for improper autodialed or prerecorded calls to cell phones by their debt collectors.203 In a 2008 ruling, the FCC determined that: “[A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.”204

Fair Debt Collection: 14.3.2.9.4 Statute of limitations and other defenses

Most courts have held that TCPA claims are governed by the general four-year statute of limitations for claims under federal statutes.214 Since the statute of limitations for a TCPA claim is set by statute, laches is not a defense.215

Neither good faith, nor the maintenance of reasonable procedures to avoid violations, is a defense to a claim involving the TCPA’s restrictions on robocalls.216

Fair Debt Collection: 14.3.3.1 Generally

Caller ID is a service that allows a subscriber to view the telephone numbers, including unlisted numbers, that are associated with incoming telephone calls.226 Caller ID issues related to debt collection can arise in at least two different ways.

First, debt collectors when calling consumers or third parties may “spoof” or falsify caller ID information to encourage those called to answer the phone. Spoofing is widespread, and only specifically illegal under certain circumstances.

Fair Debt Collection: 14.3.3.2 Spoofing and The Truth in Caller ID Act

The Truth in Caller ID Act of 2009227 amended the Telephone Consumer Protection Act to make it unlawful for any person to transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. The FCC has adopted Truth in Caller ID Act regulations,228 which closely follow the requirements of the Act itself.

Automobile Fraud: 8.11.4.2.5 Similar punitive damage awards

Courts look not just at comparable civil or criminal penalties, but also at punitive damages awards in similar cases.714 The amount of punitive damages awarded in other cases puts the defendant on notice of the potential award in the defendant’s case.715 Thus, when a previous automobile fraud case awarded a consumer relatively low actual damages, but granted punitive damages in a ratio of 27-to-1, the Eighth Circuit found this decision supported an award of punitive damages in a 25-to-1 rati