Sovereign Immunity does not preclude emotional distress damages for violation of the automatic stay by the IRS. Hunsaker v. United States (In re Hunsaker), 2016 Bankr. LEXIS 134, No. 12-64782, Adv. Proc. 14-6218 (Bankr. D. Or. January 13, 2015). Read More
Tag Archive: automatic stay
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Debtors May Recover Damages for Emotional Distress from IRS
Posted by NCBRC - February 16th, 2016
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Mere Physical Possession Not Legally Cognizable Property Interest
Posted by NCBRC - January 28th, 2016
The Ninth Circuit found that mere possession of property whose title had been fully adjudicated against the debtor in a state unlawful detainer action, was not a property interest protected by the automatic stay. Eden Place v. Perl, No. 14-60049 (9th Cir. Jan. 8, 2016). Read More
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Attorney Fees Are Actual Damages for Stay Violation
Posted by NCBRC - December 21st, 2015
Under the plain language of section 362(k)(1), costs and attorney fees are “actual damages” for violation of the automatic stay. Parker v. Credit Central South, Inc., No. 15-11204 (11th Cir. Dec. 17, 2015). Read More
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Devious Device Disables Debtors’ Car
Posted by NCBRC - September 28th, 2015
Use of a device that renders a vehicle inoperable in the event of failure to make a payment on the car loan violates the automatic stay. In re Horace, No. 14-30103 (Bankr. N.D. Ohio Aug. 28, 2015). Read More
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Debtors’ Failure to Mitigate Dooms Contempt Action
Posted by NCBRC - August 21st, 2015
Debtors’ failure to prove actual damages, in addition to an apparently deliberate failure to mitigate damages deprived them of an award of sanctions without regard to whether Solutions Finance willfully violated the stay. In re Phillips, No. 15-30632 (Bankr. E.D. Tenn. July 13, 2015). Read More
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District Court Has Original Jurisdiction over 362(k) Claim
Posted by NCBRC - July 9th, 2015
A district court has subject matter jurisdiction over a claim under section 362(k) without regard to a standing order referring all bankruptcy-related cases to the bankruptcy courts, and dismissal under FRCP 12(b)(6) is inappropriate where the allegations in the complaint present a plausible explanation for the defendants’ conduct. Houck v. Substitute Trustee Services, No. 13-2326 (4th Cir. July 1, 2015). Read More
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Court Rejects Bank’s “Devil Made Me Do It” Defense
Posted by NCBRC - June 10th, 2015
A bankruptcy court awarded almost $70,000.00 in damages for PNC’s stay violation. In re Ogden, No. 11-19841 (Bankr. D. Colo. June 1, 2015). It is easy to feel imaginary malice behind the often frustrating interactions with impersonal, computer operated, entities with which we all find ourselves conducting business. In this case, however, the court found that the debtor’s sense of actual ill will was confirmed by testimony from PNC’s representative in its defense to the charge of stay violation. Read More
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Order on Stay Violation Final despite Pending Issue as to Attorney Fee Award
Posted by NCBRC - April 17th, 2015
Where the only issue left to be determined was whether the debtor had incurred attorney fees and costs in connection with the creditor’s stay violation, the order finding liability and determining actual damages was a final, appealable order. USDA v. Sexton (In re Sexton), No. 14-453 (W.D. Va. March 31, 2015). Read More
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Sternberg Does Not Preclude Attorney Fee Award
Posted by NCBRC - April 15th, 2015
Where the creditor had not returned garnished funds at the time of the hearing for damages for the stay violation, the debtor was entitled to recovery of attorney fees incurred in connection with that hearing. In re Eeds, No. 14-61005 (Bankr. Mont. March 16, 2015). Read More
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Right to Cure Preempts State Law Property Rights
Posted by NCBRC - March 16th, 2015
Bankruptcy law enhances and expands a debtor’s state law property rights by specifying the time within which a debtor may cure a mortgage default. In re Ausburn, No. 16153 (Bankr. E.D. Ark. Feb. 10, 2015). Read More
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