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

August 9, 2020
By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction to this Series Current pandemic circumstances and economic conditions portend an onslaught of bankruptcy filings. In the consumer bankruptcy field, trustees and debtors' counsel often are uncomfortable with the rules in UCC Article 9. Here, we look at a couple of topics that touch on the interplay of Article...
Members
March 17, 2019
The 2018 Form 1040 replaces prior year Forms 1040, 1040A and 1040EZ. The 2018 Form 1040 uses a building-block approach that allows individuals to file only the schedules they need with their federal tax return. Many people will only need to file Form 1040 and no schedules. Electronic filers may not notice these changes as the tax software will automatically...
June 30, 2019
By Lawrence R. Ahern III, Brown & Ahern (Nashville, TN) Introduction In In re Fulton,1 the Seventh Circuit has restated its position on passive violation of the automatic stay, holding that failure by the City of Chicago to turn over impounded vehicles after the owners' bankruptcy filings violated Bankruptcy Code sections 362 and 542. Fulton – Background and Ruling The...
Members
Copy of Hildebrand-2016
September 25, 2022
Where a debtor and debtor’s counsel initiated a Chapter 13 petition in an effort to halt a foreclosure against property held by the debtor’s LLC, and where the debtor took no steps to correct the filing, sanctions would be imposed against debtor’s counsel. (Grabill) In re Scaccia, 2022 WL 1216284 (Bankr. E.D. La. April 25, 2022) Case Summary Scaccia owned...
Members
Copy of Hildebrand-2016
August 20, 2023
Equity that accrues as a result of market conditions in debtor’s assets between the time of confirmation of a Chapter 13 plan and conversion to Chapter 7 constitutes property of the estate which may be administered by the Chapter 7 trustee.
Members
July 11, 2021
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) A prior servicer of a mortgage claim subsequently transferred to another servicer could be held liable if the transferor servicer provided inadequate or incorrect information to the transferee. (Aron) In re Bivens vs. NewRez LLC (In re Bivens), 625 B.R. 843 (Bankr. M.D. N.C., March 25, 2021) Case Summary...
Members
August 22, 2021
By Henry E. Hildebrand, III, Chapter 13 Standing Trustee (Nashville, TN) While the best interests of creditors test is applicable upon modification of a Chapter 13 plan, post-petition acquired property of the estate is not included in such analysis in that such property would not be property of a Chapter 7 estate. (Somers) In re Taylor, 2021 WL 3118824 (Bankr....
Members
KIMBALL
October 8, 2023
“In most cases, debtor’s counsel addresses only the argument that the debtor’s personal or financial affairs have substantially changed since dismissal of the preceding case.”
Members
ahern_larry_regular
December 19, 2021
Introduction Following Part 1's review of the December 1, 2021 changes in the Federal Rules of Bankruptcy Procedure, Part 2 and
Members
Copy of Hildebrand-2016
March 31, 2024
Debtors’ attorney’s fees can be calculated as a percentage of the presumptively reasonable “no-look” fee for cases involuntarily dismissed prior to confirmation and is an allowed administrative claim which can be paid under § 1326(a)(2).
Members

Looking to Become a Member?

ConsiderChapter13.org offers a forum to advance continuing education of consumer bankruptcy via access to insightful articles, informative webinars, and the latest industry news. Join now to benefit from expert resources and stay informed.

Webinars

These informative sessions are led by industry experts and cover a range of consumer bankruptcy topics.

Member Articles

Written by industry experts, these articles provide in-depth analysis and practical guidance on consumer bankruptcy topics.

Industry News

The Academy is the go-to source for the latest news and analysis in the Chapter 13 bankruptcy industry.

To get started, please let us know which of these best fits your current position: