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.”

No Author Biography has been linked to this Article.

Related Articles

Academy Circle Logo Final
January 16, 2022
NCLC seeking non-profit organizations to sign two letters (one to the CFPB and one to FHFA, FHA, VA, and USDA) urging the agencies to require servicers to pause foreclosure activity for at least 60 days after being notified that a borrower has applied for HAF assistance and meets conditional program eligibility. We ask organizations to sign both letters, and the...
June 6, 2021
By Brian D. Lynch, Bankruptcy Judge, Western District of Washington Five years ago, I wrote an article for this publication, “Measuring Success in Chapter 13,”1 where I criticized some media and academics for repeating an outdated and misleading statistic about the success of chapter 13 cases. So it was disconcerting to see John Oliver recently on Comedy Central’s Last Week...
December 13, 2020
By Margaret A. Burks, Chapter 13 Standing Trustee for the Southern District of Ohio (Cincinnati) Chapter 13 works. Some people wish to continually criticize Chapter 13. They criticize the success rate. They criticize racial bias. They criticize how Chapter 13 works. They also criticize the fact that Chapter 13 appears less voluntary than it was before access to Chapter 7...
November 22, 2020
By David Cox,1 Cox Law Group, PLLC (Lynchburg, VA) III. Providing for the Secured Mortgage Claim, as Modified. A. Does the requirement of § 1325(a)(5)(B)(iii) for equal monthly payments permit the Debtor to propose a balloon payment in the payment of the creditor’s claim? Equal Monthly Payments Required By § 1325(a)(5)(B)(iii) Does NOT Permit Debtor To Propose A Balloon Payment....
June 5, 2022
Bankruptcy has been the focus of the Boleman Law Firm’s 30+ year history, but my law partners and I believed it was important for our firm’s long-term health to add a new practice area that would be complimentary to bankruptcy. Even though we were filing almost 250 new Chapter 7 and 13 cases every month before the pandemic, most of...
Copy of Hildebrand-2016
A month-to-month residential lease can be assumed and defaults cured in a Chapter 13 plan. (Rucker) In re Mattoon, 2022 WL 2080184 (Bankr. E.D. Tenn. June 9, 2022) Case Summary Sarah Mattoon executed a lease with Open Doors in September of 2019. Several of Ms. Mattoon’s family members lived with her in the rented apartment including her “companion” and her...
May 12, 2019
By Judge Michael A. Fagone & Career Law Clerk Ciera S. Dye III. Policy Considerations Where the statute does not provide definitive guidance, courts often turn to policy considerations. How do those considerations weigh out here? One answer is that policy considerations cut against imposing any sort of requirement of preapproval for postpetition borrowing by a consumer debtor. Several reasons...
February 27, 2022
Background A recent Chapter 7 case out of the Bankruptcy Court for the Southern District of California, In re Rhodes,1 addressed reaffirmation in a context that should be of interest to debtor's attorneys. As explained in Part 1, Rhodes points out that the "ride-through" of a debtor's secured debt after a Chapter 7 — which Congress . . . It...
August 4, 2019
By Academy Staff Those who have been around consumer bankruptcy for a while remember the halcyon days when a Debtor surrendered property in the Plan; Plan was confirmed; lender would foreclosure and file its deficiency claim; Debtor would complete the Plan; and obtain a discharge of all unsecured debts including the deficiency balance. Lenders were able to realize on the...
December 4, 2022
Many have had the unpleasant experience of coping with an ill-mannered and disrespectful opposing counsel. Unnecessary motions are filed and unfounded allegations are asserted. Relief requested has no basis in fact or law. Temperatures rise. The volume of argument is loud. Your staff and you are upset. What to do?We asked the Emeritus Trustees and here are some recommendations: First,...