The NACBA membership has filed an amicus brief in the Ninth Circuit case of America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard), No. 12-60052 (filed Jan. 23, 2015). The brief seeks reconsideration of that court’s 2010 decision in Sternberg v. Johnston, 595 F.3d 937 which limited the right to recover attorney fees to those incurred in the effort to terminate a stay violation, but not to the fees incurred prosecuting section 362(k) damage claims. Read More
Tag Archive: automatic stay
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NACBA Weighs in on Sternberg Issue
Posted by NCBRC - January 27th, 2015
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Court Removes Wells Fargo’s Brass Knuckles
Posted by NCBRC - December 17th, 2014
Like a ray of sunshine through a storm of obfuscation and false compliance, the Bankruptcy Court for the Southern District of New York found that Wells Fargo’s administrative freeze on bankruptcy debtors’ accounts violates the automatic stay, and debtors injured by the violation have standing to seek damages. In re Weidenbenner, No. 14-35443, 2014 Bankr. LEXIS 5009 (Bankr. S.D. N.Y. Dec. 12, 2014). Read More
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Maintaining Foreclosure Status Quo Does Not Violate Automatic Stay
Posted by NCBRC - December 15th, 2014
Where foreclosure is commenced pre-petition, continuance of the state foreclosure process does not violate the automatic stay. Witkowski v. Knight (In re Witkowski), No. 14-34, __ B.R. __ (B.A.P. 1st Cir. Nov. 13, 2014). Read More
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Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA
Posted by NCBRC - September 2nd, 2014
Two cases out of the Western District of Louisiana found that attorney Glay H. Collier’s fee collection practices violated sections 526, 528, 362 and 524 of the Bankruptcy Code. Wheeler v. Collier (In re Wheeler), No 11-1670 (W.D. La. May 22, 2014) and (July 17, 2014), and Patrick v. Collier (In re Patrick), No. 14-11203 (Bankr. W.D. La. July 23, 2014). Read More
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Eviction Is Violation of Stay even after Pre-Petition Foreclosure Sale
Posted by NCBRC - July 14th, 2014
A debtor’s possessory interest in property sold through foreclosure is sufficient to support a cause of action for violation of the automatic stay even though that interest may have been insufficient to withstand a motion for relief from stay. Eden Place v. Perl (In re Perl), No. 13-1328 (B.A.P. 9th Cir. May 30, 2014). Read More
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Ninth Circuit Permits Award of Appeal Fees
Posted by NCBRC - April 17th, 2014
The Ninth Circuit has cracked open a door that Sternberg seemed to have slammed shut by holding that a debtor is not precluded from recovering, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. America’s Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir. Apr. 16, 2014). Read More
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Broken Chain of Title Defeats Creditor’s Claim
Posted by NCBRC - March 24th, 2014
A broken chain of title defeated a bank’s right to enforce the Note and mortgage for debtors’ residence. In re Dorsey, No. 13-8036 (B.A.P. 6th Cir. March 7, 2014). Read More
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Effect of Foreclosure Sale on Right to Cure and Maintain
Posted by NCBRC - March 17th, 2014
A couple recent cases deal with application of the automatic stay when the debtor files his bankruptcy petition in the no-man’s-land between a foreclosure sale and the legal transfer of title through recordation. TD Bank v. LaPointe, No. 13-29 (B.A.P. 1st Cir. Feb. 24, 2014) and In re Comer, No. 13-12148 (Bankr. E.D. Tenn. March 10, 2014). Read More
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Refusal to Transfer Title in Jeep is Stay Violation
Posted by NCBRC - February 26th, 2014
The creditor violated the automatic stay by refusing to take the steps necessary to transfer title of the vehicle he had sold to the debtor prior to bankruptcy. Parker v. Smith (In re Parker), No. 12-1324, AP 13-32 (Bankr. S.D. Miss. Jan. 6, 2014). Read More
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Nondischargeability of Debt Not Per Se “Cause” for Lifting of Stay
Posted by NCBRC - September 30th, 2013
The Eleventh Circuit vacated the district court’s finding that nondischargeability of a debt, standing alone, is “cause” to grant relief from stay under section 362(d)(1). Disciplinary Board of the Supreme Court of Pa. v. Feingold (In re Feingold), No. 12-13817 (Sept. 17, 2013). Read More
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