Doan Law Continues to Fight for You!
Doan Law, a top filing San Diego Bankruptcy Law Firm, continues to fight for you even after your bankruptcy is over, and with NO FEES UP FRONT. In the recent case of In re Cobbs, our client decided he no longer wanted his car after getting his discharge. Since the Bankruptcy had discharged his personal obligation, only the lien remained on the car. A month after discharge he contacted Doan Law to surrender the car to Nissan. Doan Law contacted DH Wholesale who then immediately retrieved the vehicle for Nissan to pick up. Despite numerous notices from DH and Doan Law, Nissan refused to pick up the vehicle. DH then brought a lien sale and even the DMV contacted Nissan by certified mail to pick up the car. Nissan admitted receipt from the DMV and still refused. Eventually DH sold the car at a lien sale since Nissan refused to pick up the vehicle. Recently, Nissan said it didn’t pick up the car since “it had no obligation to retrieve the vehicle”
Meanwhile, Nissan kept billing Mr. Cobbs after they were notified the car was surrendered. Accordingly, Doan Law sent a Demand letter by fax and mail to Nissan, that it immediately stop sending billing statements. The Demand Letter further threatened a lawsuit if they didn’t stop billing. Nissan ignored the Demand and kept sending billing statements.
Doan Law Ended the Harassment With the Lawsuit
Doan Law then brought an action against Nissan in the Bankruptcy Court to stop the billing. Astonishingly, Nissan still continued to bill Mr. Cobbs after being served with the lawsuit! At the first hearing on the matter, the Judge started to side with Mr. Cobbs, but Doan Law to serve Nissan one last time prior to issuing sanctions. Doan Law served the suit on Nissan a final time at numerous addresses and Nissan finally stopped. If Doan Law never filed the lawsuit, Nissan would have continued to harass Mr. Cobbs for payment on a discharged debt. Doan Law ended the harassment with the lawsuit. Interestingly, with respect to one of the addresses, Nissan claimed “it is not the practice of NMAC to review correspondence sent to that address.” Nissan may have systemic and nationwide Bankruptcy compliance issues in light of this admission and Doan Law is investigating.
In the lawsuit, Doan Law propounded discovery (official questions that Nissan was bound to answer under perjury) and demanded an evidentiary hearing (small trial before the Bankruptcy Judge). Strangely, the Judge put a hold on discovery and decided he would think about the case before any further action or evidentiary hearing takes place.
Months later the Judge issued his final decision and in a bizarre twist, found Nissan not at fault. The Judge somehow decided Nissan didn’t know they had to stop sending billing statements, without looking at all the facts! The Judge decided the case without allowing discovery to continue or allowing an evidentiary hearing. It was a shocking decision since in this country, everyone gets “their day in court,” even individuals that file bankruptcy. In this case, the judge completely denied Mr. Cobbs to present his case to the Court. The Judge denied Mr. Cobbs due process of law.
The Ninth Circuit Bankruptcy Panel (“BAP”) Heard the Appeal and Agreed With Doan Law
Doan Law appealed on behalf of Mr. Cobbs since there was an obvious and blatant error by the Bankruptcy Court. The Ninth Circuit Bankruptcy Panel (“BAP”) heard the appeal and agreed with Doan Law. The BAP found the Judge had errored and reversed the Court. The BAP found that the Judge errored since he denied discovery and denied an evidentiary hearing. The BAP then remanded the matter back, ordering the Judge to allow discovery and conduct an evidentiary hearing. Parts of the BAP decision are:
Mr. Cobbs is correct that the bankruptcy court mistakenly thought that he needed to obtain permission before conducting discovery in a contested matter. See In re Khachikyan, 335 B.R. at 126
But here the facts were in dispute. We conclude that, because there was a conflict in the evidence, the court erred.
….the bankruptcy court erred when it held, as a matter of fact and without permitting discovery and conducting an evidentiary hearing, that NMAC lacked subjective knowledge that the discharge injunction applied. Therefore, we must REVERSE and REMAND.
Currently discovery is ongoing, but surprisingly the Judge is still refusing to conduct an evidentiary hearing despite direct Orders from the Appeals Court. The Judge claims there is another case before the U.S. Supreme Court that is pending that might affect this case. Mistakenly, that case will have no impact since the BAP already found the wrongful conduct exists as long as there is proof Nissan received Doan Law’s Demand letter. Doan Law already has the collection logs from Nissan, which conclusively proves receipt of the Demand Letter.
More recently, NISSAN has also admitted its receipt of the Demand “letter from DLF that asserted the mailing of statements to the debtor post petition violated the discharge injunction.” So its a rather simple case. Show the Judge the collection letter and their admission to receipt of the same and sanctions will be ordered. It is most unfortunate the Judge is not following the BAP’S orders at this time. Stay tuned for a final decision hopefully later this year.
Doan Law Continues to Fight for You!
Meanwhile, Doan Law has over $140,000.00 in attorney fees in this matter that NMAC will need to eventually pay. Mr. Cobbs has not paid a dime and Doan Law charges no up front fees in sticking up for its clients. Once this matter is concluded, Nissan will be responsible for paying all the attorney fees in addition to paying Mr. Cobbs for the harassing billing statements he received after his discharge.
Contact our Doan Law Firm if you receive any creditor communications. We are here to make the difference and stop creditor abuse!
Written by Michael G. Doan–
Owner of the Oceanside Bankruptcy Attorney office, Michael not only manages his business, but is also a highly skilled San Diego Bankruptcy Attorney with over 20 years of experience. He specializes in many fields, such as: insolvency, bankruptcy, consumer rights, debt negotiation, creditor collection abuse, estate planning, contracts, real estate, and tax. Michael is currently concentrating his practice solely in Bankruptcy Law and is a Board Certified Specialist in Consumer Bankruptcy Law by the American Board of Certification, one of only fourteen such attorneys in all of California. Mr. Doan also practices on the cutting edge of bankruptcy law, and was the first attorney in the entire Southern District of California to file the very first Chapter 7 Bankruptcy and very first Chapter 13 Bankruptcy under the new Bankruptcy Laws which went into effect on October 17, 2005.
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