Schwartz-Tallard v. America’s Servicing Co. (In re Schwartz-Tallard), 473 B.R. 340, 349–50 (B.A.P. 9th Cir. 2012) (Pappas, Dunn, Kirscher)

Sternberg v. Johnson, 595 F.3d 937 (9th Cir. Feb. 8, 2010) (Hawkins, Berzon, Clifton), cert. denied, ___ U.S. ___, 131 S. Ct. 102, 178 L. Ed. 2d 29 (Oct. 4, 2010), does not preclude award of appellate attorney fees as actual damages under § 362(k) when debtor resisted stay violator’s appeal. “Sternberg determined that while recovery of attorneys’ fees is allowed pursuant to § 362(k) when related to enforcement of the automatic stay, the attorneys’ fees incurred in a debtor’s pursuit of a ‘damages action for a stay violation’ may not be recovered. . . . [W]hen ASC appealed the Stay Violation Order to the District Court, Debtor was required to defend the bankruptcy court’s decision, not only to protect the award of damages, but also to uphold the bankruptcy court’s determination that ASC had, indeed, violated the stay. . . . Debtor’s defensive position in the appeal did not run afoul of Sternberg’s concern for debtors using the stay to pursue damages instead of reorganizing their finances. . . . [A]n appeal by a stay violator, which requires a bankruptcy debtor to continue to participate in litigation to defend her stay and properly awarded stay- enforcement damages, deprives the debtor of the benefits of her automatic stay. . . . Debtor’s defense of the bankruptcy court’s decision was an extension of her efforts to enforce her automatic stay. . . . Debtor’s Appellate Attorneys’ Fees, incurred to ensure the continuity of the stay, and to protect her stay-enforcement damage award, are no less damages ‘resulting from the stay violation itself’ merely because she had to defend their enforcement at the appellate level rather than the bankruptcy court, and because the appeal took place after the Property was reconveyed to her.”

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