11 U.S.C. § 362

Section 362(h) does not allow a corporate debtor to recover damages for a willful violation of the automatic stay.

Manlon, Inc. v. Sanitation District No. 1 of Campbell & Kenton Counties (In Re Manlon, Inc.) · filed 1994-06-21(h)

This Court concludes that these decisions are the better reasoned of those under consideration. It is therefore the opinion of this Court that the plaintiff may not recover damages pursuant to § 362(h), and that Acceleration is entitled to judgment as a matter of law on Counts VI and XII of the Complaint.

Section 362(h) treats a deliberate postpetition wage levy as a willful stay violation when the creditor knows the debtor has filed for bankruptcy.

Washington v. Internal Revenue Service (In re Washington) · filed 1994-05-13(h)

To the contrary, this court has previously held that “willful”, as the term is used in section 362(h), is satisfied when an entity engages in a deliberate act that is done in violation of the automatic stay with knowledge that the debtor has filed a petition in bankruptcy. ... I therefore conclude that the IRS’ actions in sending a notice of levy to Débtor’s employer constituted a willful violation of the automatic stay under section 362(h) of the Code.

Section 362(h) treats a repossession agent’s failure to return property after learning of the bankruptcy petition as a willful stay violation, even when the agent initially repossessed it without that knowledge.

In Re Herbst · filed 1994-05-25(h)

While Northwest Florida Recovery, Inc. acted initially without knowledge of the bankruptcy petition, once it became aware that the petition had been filed and that the repossession of the automobile was in violation of the automatic stay, it had a duty to return the property to the debtor. Its failure to do so thus constitutes a willful violation of the automatic stay.

Under § 362(h), a creditor’s reliance on advice of in-house counsel does not excuse a willful violation of the automatic stay.

Smith v. GTE North Inc. (In Re Smith) · filed 1994-06-09(h)

The proposition that the good faith advice of counsel is no defense to an action under § 362(h) is of greater force in the instant adversary where the advice relied upon was that of in-house counsel.

A creditor that knows of a bankruptcy willfully violates the automatic stay by deliberately levying on the debtor’s wages to collect a prepetition debt.

Matter of Washington · filed 1994-05-13(h)

I therefore conclude that the IRS' actions in sending a notice of levy to Debtor's employer constituted a willful violation of the automatic stay under section 362(h) of the Code.

Section 362(h) requires a party seeking damages for a willful stay violation to prove injury or damages caused by the violation.

In Re Clarkson · filed 1994-04-26(h)

The debtor failed to satisfy her burden to prove that she sustained an injury or suffered damages as a result of the stay violation, and the Court therefore properly denied her motion for sanctions and damages.

Section 362(h) treats a creditor’s postpetition sale of a debtor’s property after receiving notice of the bankruptcy filing as a willful violation of the automatic stay.

Bush v. Nationsbank, N.A. (In re Bush) · filed 1994-03-11(h)

That presumption has not been rebutted in this case and, thus, it is presumed that notice of Debtor’s bankruptcy was delivered to representatives, employees, and agents of the Bank. As such notice was received, any action taken against the property of the Debtor or the bankruptcy estate was, under the facts of this case, a willful violation of the automatic stay. Therefore, under the facts, the sale of Debtor’s truck post-petition violated 11 U.S.C. § 362 and Bank is subject to the provisions of 11 U.S.C. § 362(h).

Section 362(h) does not permit attorney’s fees for an automatic stay violation when the alleged violator did not know of the bankruptcy filing at the time of the challenged transfer.

Sticka v. Mellon Bank (DE) Natl. Assoc. (In Re Martin) · filed 1994-02-25(h)

The trustee also alleged Mellon’s violation of the automatic stay and asked for his attorney’s fees under 11 U.S.C. § 362(h). This court ruled against the trustee on this claim at oral argument, finding that at the time Mellon transferred the funds at issue it did not know that the debtors had filed bankruptcy.

Section 362(h) does not award compensatory damages or attorneys’ fees to a bankruptcy trustee who suffered no injury from a willful stay violation.

Martino v. First National Bank in Harvey (In Re Garofalo's Finer Foods, Inc.) · filed 1994-02-17(h)

Consequently, the uninjured Trustee is not entitled to compensatory damages, including attorneys’ fees under section 362(h).

Section 362(h) actual damages for a willful stay violation must account for the debtor’s real loss, including the quality of a replacement vehicle and other relevant evidence.

Jordan-Starr v. Norwest Bank-Region VIII · filed 1994-02-11(h)

The bankruptcy court’s finding does not take into account the nature of the “new car” which Jordan-Starr purchased, as opposed to the repossessed 1992 Honda which was under warranty, i.e. what she lost as opposed to what she gained. ... I must remand, directing the bankruptcy court to reassess Jordan-Starr’s actual damages, taking all relevant factors into account.

Section 362(h) treats a deliberate sale of estate property after notice of the bankruptcy filing as a willful violation of the automatic stay.

In Re Rivers · filed 1993-11-09(h)

The day before the auction the employee in charge of O’Hara’s office received a copy of debtor’s petition and a letter explaining the significance of the automatic stay as well as a telephone call from debtor’s attorney. In addition, prior to the sale, O’Hara’s general manager was informed that debtor had filed a petition in bankruptcy but held the sale anyway. There is no question that O’Hara’s conduct, in proceeding with the auction, was deliberate and not inadvertent. Consequently, the Court finds that O’Hara’s actions amount to a willful violation of the automatic stay.

Section 362(h) damages for violation of the automatic stay are not governed by North Carolina contributory negligence principles.

In Re HUTCHINSON · filed 1993-09-16(h)

North Carolina contributory negligence principles are not relevant to an action for damages under Sec. 362(h) for violation of the automatic stay.

Section 362(h) damages for violating the automatic stay are not governed by North Carolina contributory negligence principles.

Yadkin Valley Bank & Trust Co. v. McGee (In re Hutchinson) · filed 1993-09-16(h)

Second, the action against the third-party creditors is for violation of the automatic stay provisions of 11 U.S.C. § 362 (Supp. II 1978) (amended 1982, 1984, 1986 & 1990). North Carolina contributory negligence principles are not relevant to an action for damages under § 362(h) for violation of the automatic stay.

Section 362(h) does not provide damages for filing a complaint that the bankruptcy court treats as a request for relief from the automatic stay.

Associates v. Franklin Realty Group, Inc. (In Re FRG, Inc.) · filed 1990-11-19(h)

We also believe that to allow this proceeding to continue would violate the automatic stay. However, as we view the Complaint itself as the equivalent of a motion for relief from the automatic stay, no damages under § 362(h) are appropriate.

Section 362's automatic stay protects the debtor's estate, and a party that is not a creditor of the estate lacks standing to assert a violation of the stay.

Franklin Bank and Trust Co. v. Mithoefer · filed 1990-11-27

The Court of Appeals was correct in its holding that the Bank, not being a creditor of the bankruptcy estate, lacked standing to assert a violation of the automatic stay provision.

Section 362(h) does not apply to a bankruptcy case filed before that damages provision took effect.

Fry v. Today's Homes, Inc. (In Re Fry) · filed 1990-10-18(h)

It must first be noted that § 362(h) of the Code, which allows an individual injured by a wilful violation of the stay to recover actual damages, attorney fees and punitive damages, was not in effect at the time this case was filed, and therefore has no application to the present proceeding.

Section 362(h) treats an intentional collection act taken with knowledge of the automatic stay as willful even if the creditor mistakenly believes the stay has ended.

United States v. Bulson (In Re Bulson) · filed 1990-08-17(h)

The fact that the IRS might have been mistaken about the status of the case, or believed it had a right to execute on the debtor’s property does not make the act of collection non-willful.

Section 362(h) treats a deliberate act taken with knowledge of the automatic stay as a willful violation even without bad faith.

Perry v. Fifth Third Bank of Toledo (In re Perry) · filed 1990-09-11(h)

Applying the Carroll rationale, this Court finds that the Defendant had knowledge of the stay and yet willfully violated the automatic stay provision of Section 362. The Court, however, does not find that the Defendant acted in bad faith.

Section 362(h) does not displace civil contempt as a remedy for automatic-stay violations, and courts may award compensatory damages against state creditors through contempt despite Eleventh Amendment immunity.

Colon v. Hart (In Re Colon) · filed 1990-06-07(h)

The passage of section 362(h) was not intended to preclude the use of civil contempt. Congress intended that the automatic stay reach states irrespective of any immunity they might have. Eleventh Amendment immunity does not prevent an award of compensatory damages in the context of civil contempt. As a result, I conclude that violations of the automatic stay may result in compensatory damages against state creditors, or state entities acting as agents on behalf of creditors.

Section 362 prohibits a creditor that has actual notice of a bankruptcy filing from selling the debtor’s vehicle; a knowing sale violates the automatic stay and supports contempt sanctions.

In re Culler · filed 1990-05-04

Based upon the above findings, we find that the Bank knowingly acted in violation of the automatic stay by selling the debtors’ vehicle, after receiving actual notice of the filing, and that Citizen’s Saving Bank is in contempt which is not merely technical.

The automatic reattachment of a lien by operation of law, without action by any entity, is not a wilful violation of the automatic stay.

Brantley v. Weeks (In Re Brantley) · filed 1990-05-04(h)

Although debtor’s bankruptcy case was still pending, and the lien may have reattached in violation of the automatic stay of 11 U.S.C. §§ 362(a)(1), (5) and/or (6) and have been avoidable, the reattachment of the lien was not a wilful violation of the automatic stay because it was not the result of action by any entity, but rather the result of operation of law.

Section 362(h) supports actual damages for a deliberate violation of a known automatic stay and punitive damages when the violator acted maliciously or in bad faith.

In Re Crysen/montenay Energy Co., Debtor. Crysen/montenay Energy Co. v. Esselen Associates, Inc. · filed 1990-05-09(h)

In enunciating this standard, we find persuasive the reasoning adopted by the other circuits and conclude that any deliberate act taken in violation of a stay, which the violator knows to be in existence, justifies an award of actual damages. An additional finding of maliciousness or bad faith on the part of the offending creditor warrants the further imposition of punitive damages pursuant to 11 U.S.C. § 362(h).

Section 362(a) bars a creditor with a collection motive from seeking enforcement of a prepetition contempt order based on the debtor’s failure to pay a dischargeable debt.

Matter of Thayer · filed 1982-11-09(a)

In the careful balancing which must take place between the integrity of the state court and its orders and the protection of debtors under 11 U.S.C. § 362, the presence of a collection motive on the part of the party instigating the enforcement of a contempt order is a significant consideration. Because that collection motive invokes the stay against collection of 11 U.S.C. § 362 it precludes the creditor from taking steps to police the integrity of the court’s order.

Applying a debtor’s savings account to a prepetition loan violates the automatic stay, but an inadvertent violation after consulting the trustee does not warrant contempt.

Porter v. Goodyear Employees Credit Union (In Re Porter) · filed 1982-11-24(a)(3), (a)(6)

It is clear to this Court that Goodyear is in technical violation of the automatic stay as prescribed by the Bankruptcy Code. Goodyear’s application of the savings account proceeds toward the repayment of the loan can be treated as either, an act to obtain possession of property of the estate, 11 U.S.C. § 362(a)(3); or, an act to collect, assess, or recover a claim against the debtor, that arose before the commencement of the case, 11 U.S.C. § 362(a)(6). ... This Court agrees with that standard and would reserve the power of contempt to an occasion more fitting than the instant one. Here, it would be improper to impute the motive and intentions of circumvention to Goodyear after they had made earnest attempts to resolve the issue with the Trustee.

Section 362 stays a postpetition foreclosure sale of estate property, and a sale and resulting title issued in violation of the stay are void.

Mongiove v. Browne (In Re Mongiove) · filed 1980-09-22

The filing of a bankruptcy petition constitutes an automatic self-executing stay of any judicial proceeding or act to obtain possession of property of the estate. 11 U.S.C. § 362. As of the filing of the petition, the real property in question became property of the estate, 11 U.S.C. § 1306, and, therefore, all actions were stayed with respect to this property. The subsequent foreclosure sale and issuance of title by the Clerk of the Circuit Court were acts in violation of the stay and as such, are void and without effect.

In assessing an alleged violation of Section 362, the actor’s actual knowledge of the bankruptcy filing matters; the filing alone does not determine liability.

Smith Corset Shops, Inc. v. Brodeur (In Re Smith Corset Shops, Inc.) · filed 1980-10-07(a)(3)

Even without the use of Section 542, recent Bankruptcy Court decisions have interpreted that actions which violate the provisions of Section 362 must be considered in light of whether the actor had actual knowledge that the debtor had sought relief under the Bankruptcy Code at the time the violation occurred. ... Accordingly this court finds that the debtor’s filing for relief and the concomitant provisions triggered thereby, are not dispositive for a final determination of this complaint.

Section 362(a)(3) makes an attempted termination of the debtor’s lease void when the termination violates the automatic stay.

In Re Taylor Manufacturing, Inc. · filed 1980-10-28(a)(3)

The alleged termination was also void because it was attempted in violation of the automatic stay 11 U.S.C. § 362(a)(3).

Section 362 operates prospectively and does not undo an IRS levy and seizure completed before the bankruptcy petition was filed.

In Re Avery Health Center, Inc. · filed 1981-01-28

The stay provisions apply only prospectively. They do not undo the IRS’s seizure of the debtor’s property prior to the commencement of the case. The levy and seizure having been accomplished before the bankruptcy petition was filed, .the automatic stay provisions of the Bankruptcy Code do not revoke the rights obtained by the IRS with respect to the debtor’s property through such levy and seizure.

Section 362(a) does not support a finding of willful violation based on a vague telephone call that fails to give a creditor sufficient notice of the bankruptcy case.

General Motors Acceptance Corp. v. Miller (In Re Miller) · filed 1981-03-06(a)

Insufficient proof to establish a willful violation of the court jurisdiction and of the automatic stay provisions of 11 U.S.C. § 362(a) and 11 U.S.C. § 1306(b) has been submitted. The telephone call made by the wife of Debtor is too tenuous to establish a duty to cheek the court records before taking action to seize the collateral.

Section 362 does not compel a civil-contempt finding against the Air Force for withholding retirement pay under the mandatory provisions of 10 U.S.C. § 687.

In re Mullen · filed 1981-03-13

This Court does not conclude that 11 U.S.C. § 362 compells a finding of civil contempt in light of the mandatory provisions of 10 U.S.C. § 687.

A willful violation of § 362’s automatic stay can result in contempt and compensatory damages.

Asters v. Webber Chevrolet Co. (In Re Asters) · filed 1981-06-04

In the circumstances of this case, I conclude that the Webber willfully violated the provisions of Section 362, and is in contempt of the automatic stay. Since Asters has been wrongfully deprived of his stereo, compensatory damages in the amount of $450, the value of the property, are assessed against Webber.

Section 362 does not entitle a debtor to attorney fees when the employer did not willfully violate the automatic stay.

In Re Lillie · filed 1981-07-22

Since the Court has determined that the Employer did not willfully violate the automatic stay provision under Section 362 of the Bankruptcy Code, the Debtor is not entitled to attorney fees.

Contempt for violating Section 362’s automatic stay is inappropriate when the violation was inadvertent rather than willful and malicious.

Hatcher v. Mid-American Acceptance Corp. (In Re Hatcher) · filed 1981-10-20

Contempt is also inappropriate where the debtor inadvertently violates the stay. ... This does not indicate that the defendants willfully and maliciously violated the stay provisions. It is therefore held that the defendants were not in contempt of Court.

Section 362 stay violations may be remedied through civil contempt with a compensatory award for the debtor’s damages, without the $250 limit on punitive contempt fines.

Transitowne Leasing, Inc. v. Gorin (In Re Gorin) · filed 1982-02-26

I conclude that this court has the authority to make an award, by way of a compensatory fine, for damages sustained by the debtor due to any violation by Trans-itowne of the automatic stay imposed by § 362, and that such award is not limited by any provision of Rule 920(a)(3).

Section 362 does not stay a state court’s post-bankruptcy sentence for contempt of a subpoena committed before bankruptcy, even when a creditor requests the sentence.

Dumas v. Atwood (In Re Dumas) · filed 1982-03-29

This appeal raises the question of whether a post-bankruptcy request to enter sentence for a pre-bankruptcy contempt violates the automatic stay of 11 U.S.C. § 362. We hold that it does not and affirm the trial court.

A party cannot be held in contempt for violating the § 362 automatic stay without knowledge of the bankruptcy filing; formal notice is unnecessary if it learned of the stay through another source.

In Re Tom Powell & Son, Inc. · filed 1982-08-20(a)(6)

Formal notice is not required so long as the party in violation had obtained knowledge of the order through some source. ... The Court finds that Local 36 and its officers and employees had no actual knowledge of the bankruptcy having been filed. There was, therefore, no knowing or willful violation of the automatic stay.

Section 362(a)(1) stays judicial process and collection efforts upon a bankruptcy filing, and posting the debtor’s property for sheriff’s sale violates that stay and can constitute contempt.

In Re Demp · filed 1982-09-27(a)(1)

The filing of a petition for relief under the Bankruptcy Code acts as an automatic stay of judicial process and collection efforts. 11 U.S.C. § 362(a)(1). By having the property posted for Sheriff’s sale, Mr. Becket was in violation of the stay and in contempt of court.

Section 362(a) does not prevent a secured creditor from joining as co-plaintiff in a debtor in possession’s action to enforce the debtor’s contracts.

National Sugar Refining Co. v. Ma's Old Fashioned Root Beer (In Re National Sugar Refining Co.) · filed 1982-10-20(a)

Defendant’s contention that the Bank may not proceed as a co-plaintiff without first seeking an order lifting the automatic stay is, likewise, unfounded. While the automatic stay provisions of 11 U.S.C. § 362(a) normally apply to a creditor seeking recovery, in the instant case, the debtor in possession, a party not bound by the automatic stay, is co-plaintiff. That the Bank concurs in National’s decision to prosecute this action in no way inhibits National from seeking the relief requested.

Section 362(a) bars a creditor from arranging a sale of estate property to collect its debt without stay relief, and a violation may support an award of costs and reasonable attorney’s fees.

Edelman v. Grand Valley National Bank (In Re Haines & Baker Excavating, Inc.) · filed 1982-12-10(a)

The Bank flagrantly violated this stay. ... In view of the clear violation of the automatic stay, there will be added to the judgment for the money value of the backhoe all costs of this adversary proceeding plus reasonable attorneys’ fees.

Section 362’s automatic stay does not support conversion recovery against landlords who unknowingly removed the debtor’s goods under a court order when the debtor knew of the removal and remained silent.

In Re Smith Corset Shops, Inc., Debtor. Appeal of Laurent Brodeur · filed 1982-12-27

We only hold that Smith could not remain stealthily silent when it knew that the goods were being moved pursuant to court order and then turn around and successfully sue the Brodeurs for the alleged conversion of the goods. We do not think Congress envisioned any such misuse of the automatic stay.

Section 362(a)(7) does not warrant a contempt sanction when a creditor seeks relief from the stay to pursue a substantively arguable setoff and has not acted in bad faith.

United States v. Hammett (In Re Hammett) · filed 1983-03-31(a)(7)

In light of our prior determination that the IRS did not act in bad faith where its argument in favor of setting off the debtor’s refund was not “wholly without substance,” we find that a contempt sanction in the present circumstances would be inappropriate to carry out the stay provisions of the Bankruptcy Code.

Section 362(a)(3) cannot support contempt when the automatic stay, read with the relevant consent judgment, is insufficiently definite and specific as applied to the challenged conduct.

Frankford Trust Co. v. Allanoff · filed 1983-04-01(a)(3)

Whether or not this characterization is accurate, taken as a whole, the automatic stay provision of the Bankruptcy Code, read in conjunction with the wording of the consent judgment, was not sufficiently definite and specific so as to warrant a conclusion that appellants’ actions were in contempt of court.

A creditor that repossesses property without notice or knowledge of the bankruptcy does not commit contempt for violating the automatic stay.

In Re Ferrando · filed 1983-05-09

As to Payton-Wright, it is uncontested that it had neither notice nor knowledge of the filing of the petition. Consequently, its repossession of the car was not contemptuous.

A violation of the automatic stay need not be willful to warrant attorneys’ fees as compensation for civil contempt.

In Re Newlin · filed 1983-04-19(a)(6)

As compensation for an act of civil contempt the violation of the automatic stay need not be willful for the sanction of attorneys’ fees to apply.

A court may award debtors legal expenses caused by a violation of the automatic stay, even when the initial noncompliance was technical.

Crabtree v. Veterans Administration (In Re Crabtree) · filed 1983-06-29(a)

It is the opinion of the Court that Debtors should not bear the burden of the legal expenses resulting from Defendant’s violation of the stay, particularly since much of the legal services were required to be performed after Defendant had actual notice of Debtors’ reinstatement and after Defendant had even acted on such notice “to rectify” Defendant’s error.

Section 362’s automatic stay benefits the debtor; other parties cannot use a stay violation the debtor ignores to their own advantage, and violations are not invariably void.

Hadsell v. Philadelphia Life Insurance (In Re Fuel Oil Supply & Terminaling, Inc.) · filed 1983-06-06

The automatic stay is for the benefit of the debtor and if it chooses to ignore stay violations other parties cannot use such violations to their advantage. Moreover, the characterization of every violation of § 362 as being absolutely void is inaccurate and overly broad.

Section 362(a) makes actions violating the automatic stay void, but a completed state foreclosure sale conducted without actual notice of the bankruptcy will not be vacated absent compelling circumstances.

Fisher v. Olah (In re Olah) · filed 1983-06-30(a)

An action taken in violation of this Court’s automatic stay is void ab initio. Nevertheless, absent compelling circumstances, this Court will not vacate a duly completed sale of real estate under the auspices of state court and without actual notice of this Court’s jurisdiction.

Section 362(a)(1)-(4) stays acts against property of the bankruptcy estate, and a foreclosure sale held after the debtor files for bankruptcy is null and void.

Presidential Row, Inc. v. Citizens Savings Bank (In Re Presidential Row, Inc.) · filed 1983-06-21(a)(1)-(4)

Because the real estate is “property of the estate,” acts against it are stayed pursuant to 11 U.S.C. § 362(a)(1)-(4). Acts taken in violation of the automatic stay are null and void. ... Because the foreclosure sale was held three days after the debtor filed its petition for relief under Chapter 11, that sale is null and void.

Section 362 bars a creditor from restricting a debtor’s access to its business premises or disrupting its business without stay relief, and acts that violate the stay are void.

In Re Doan's Truck Repair, Inc. · filed 1983-09-19

Each and every act of First Security between June 29, 1983 and July 7, 1983, which resulted in the restriction or dislocation of the debtor from the business property, as well as a restriction or termination of the debtor’s business, constituted an open and flagrant violation of the automatic stay imposed by 11 U.S.C. Section 362. ... Any and all acts undertaken by First Security from and after June 29,1983, with respect to the above-named debtor’s business and property, which acts were in violation of the automatic stay imposed by 11 U.S.C. Section 362 are void and without any legal force or effect.

Knowing violations of the automatic stay ordinarily may be punished by contempt, but a court may decline contempt relief when a successive Chapter 11 filing serves only to frustrate foreclosure.

R & M Porter Farms, Inc. v. Green Hills Production Credit Ass'n (In Re R & M Porter Farms, Inc.) · filed 1984-02-09

It is true that knowing violations of the automatic stay ordinarily can and should be the subjects of contempt orders. ... The files and records in these cases, including the material fact that the former case had to be dismissed for failure to file any plan or disclosure statement, despite successive extensions of time, adequately show that there has been no serious purpose to the current chapter 11 filing except to frustrate the foreclosure. ... Accordingly, the bankruptcy court should exercise any discretion which it has in this contempt matter in favor of declining to issue any contempt citation.

Acts in violation of the automatic stay are voidable rather than automatically void, and a court may decline to invalidate them.

In Re Oliver · filed 1984-03-28

While there is case law supporting both the debtor’s assertion that actions in violation of the stay are void and Norwest’s argument such acts are voidable, I think the better rule is that acts in violation of the automatic stay are voidable rather than void.

A violation of the automatic stay requires consideration of all the circumstances before the court may impose civil contempt.

Ramage v. Ramage (In Re Ramage) · filed 1984-04-19(a)(1)

Each violation of the stay must be considered in its entirety, with due consideration given to the underlying facts, prior to a finding of contempt.

Section 362(a) makes a judgment entered against debtors after they file a bankruptcy petition void as a violation of the automatic stay.

Industrial Commission of New York v. Mully (In Re Mully) · filed 1984-08-27(a)

Therefore, the judgment of the Industrial Commission of the State of New York in the amount of $3,048.48 is voided as being filed in violation of 11 U.S.C. § 362(a) and it is so ordered.

Section 362(a) is violated when a creditor fails to release a wage garnishment after the debtor files a bankruptcy petition; the violation may be punished as civil contempt.

Pody v. Pody (In Re Pody) · filed 1984-09-17(a)

The Court concludes that the creditor violated the automatic stay of 11 U.S.C. § 362(a) by not releasing the garnishment on the debtor’s wages. Violation of the stay constitutes a civil contempt of court for which the bankruptcy court may impose a fine.

Section 362 makes a judgment entered against a debtor during the automatic stay void.

McDonell v. Eggestein · filed 1984-11-06(a)(4)

McDonell’s judgment was entered on January 12,1983, and was therefore in violation of section 362. McDonell could have sought relief from the stay pursuant to section 362(d) but chose not to do so. Action in contravention to section 362 is null and void.

A creditor’s continued repossession and sale of estate property after learning of the bankruptcy is a separate, knowing violation of the automatic stay that supports contempt damages.

Matter of Behm · filed 1984-11-30(a)(3)

Talbot’s continuing with repossession and sale is a separate violation of the stay and, because it was done knowingly, is a contempt upon which damages may be awarded.

A creditor that repossesses collateral after receiving notice of a bankruptcy filing may be held in contempt and required to pay the debtor’s attorney’s fees, costs, and damages for violating the automatic stay.

In Re Newman · filed 1985-01-25

In the present case, the court holds that the creditor had notice of the debtor’s bankruptcy filing. Despite this knowledge, the creditor repossessed the debtor’s Olds 98. ... The court will accordingly enter an order finding the creditor in contempt of court and GRANTING a judgment to the debtor in the amount of $935.00 in attorneys fees and costs and $63.12 in damages.

Section 362 does not justify damages or attorney fees for a technical stay violation when the debtor consented to repossession and the creditor acted in good faith without notice of the stay.

Shriver v. Tingley (In Re Shriver) · filed 1985-02-21

Due to plaintiff’s conduct in being less than honest and forthright with the defendants by failing to advise them of the bankruptcy when he had the opportunity to do so, and after consenting to the repossession with his agent assisting therein, the defendants’ good faith effort to keep their actions within the bounds of the law, and having no actual notice of the bankruptcy or the stay, the court finds under the circumstances of this case that an award of damages or attorney fees is not justified and plaintiff’s complaint should be dismissed.

A request for relief from the automatic stay under § 362(d) is governed by federal law, so a state statute awarding attorney fees in contract actions does not authorize fees in the stay proceeding.

In Re Johnson · filed 1985-03-28(d)

A request for relief from the automatic stay pursuant to 11 U.S.C. Sec. 362(d) is not an "action on a contract" to which state substantive law would be applied but an action on a federal statute to be decided according to federal law.

Section 362(a)(7) does not make forfeiture of an otherwise valid setoff right the remedy for violating the automatic stay.

Norton v. Associated Grocers of Maine, Inc. (In Re Peabody) · filed 1985-07-17(a)(7)

While plaintiff trustee may be entitled to the remedies of sanctions and damages for violating the stay, a denial of Associated’s substantive right to the $12,785.87 setoff amount is not a proper remedy.

Section 362(h) authorizes punitive damages for a violation of the automatic stay when the circumstances warrant them.

In Re Depew · filed 1985-07-17(h)

A right to punitive damages for violation of the automatic stay is now explicitly created by § 362(h).

A violation of § 362’s automatic stay is at least voidable to the extent it affects another creditor’s rights.

International Fidelity Insurance v. European American Bank · filed 1985-07-24

This court, however, need not resolve this issue since it finds that respondent’s actions in violation of the automatic stay are at least voidable to the extent that they affect the rights of petitioner.

Section 362 makes a default judgment obtained after a bankruptcy filing without bankruptcy-court permission void when it violates the automatic stay.

WSE Warehouse v. Holmes (In Re Holmes) · filed 1985-07-31

The plaintiff obtained a default judgment for the amount of the checks in an action of trespass in Allegheny County February 27, 1981 after the bankruptcy filings as follows: an involuntary petition filed January 8, 1981 consolidated March 19,1981 with debtors’ voluntary Chapter 13 petition filed February 25, 1981, and hence is void as it was obtained without the permission of the Bankruptcy Court in violation of the automatic stay provisions of 11 U.S.C. Section 362.

Section 362(h) permits punitive damages as a civil remedy for violations of the automatic stay.

Better Homes of Virginia, Inc. v. Budget Service Co. (In Re Better Homes of Virginia, Inc.) · filed 1985-08-23(h)

It must also be assumed that Congress considered punitive damages under 11 U.S.C. § 362(h) to be civil, and not criminal, in nature.

Section 362 permits recovery of attorneys’ fees for work needed to litigate an automatic stay violation, even when the work was not recorded as stay research.

AM International, Inc. v. Tennessee Valley Authority (In Re AM International, Inc.) · filed 1985-10-04

CUB’s argument that AMI can recover only that infinitesimal portion of its fees contemporaneously styled “stay research” elevates form over substance and grotesquely distorts the whole purpose for which bankruptcy courts award sanctions for violations of the stay.

Section 362(h) requires a finding of actual injury before damages may be awarded for a violation of the automatic stay.

In Re Freunscht · filed 1985-10-07(h)

Even if we were to find a violation of the stay, 11 U.S.C. § 362(h) requires a finding of actual injury, and here there was none.

A technical violation of the automatic stay, or one committed in good faith, does not warrant contempt sanctions.

In Re Cox · filed 1985-10-15

Sanctions for contempt are inappropriate under the Bankruptcy Code where a mere technical violation of the stay has occurred or where the litigant has acted in good faith.

Section 362(h) allows an individual injured by a violation of the automatic stay to recover actual damages, including costs and attorney fees, and punitive damages in appropriate circumstances.

Matter of Crum · filed 1985-10-28(h)

In addition, an amendment to § 362(h) now provides that an individual who is injured as a result of a violation of the automatic stay may recover actual damages including cost and attorney fees and even, in appropriate circumstances, recover punitive damages.

Section 362(h) requires a deliberate and intentional act done with knowledge that it violates the automatic stay before sanctions for a willful violation may be imposed.

Forty-Eight Insulations, Inc. v. Lipke (In Re Forty-Eight Insulations, Inc.) · filed 1985-11-20(h)

This Court reads subsection (h) as requiring conduct which flaunts the jurisdiction and integrity of the Court, reading “willful violation” to mean a deliberate and intentional act done with the knowledge that the act is in violation of the stay.

Section 362(h) makes a deliberate repossession a willful stay violation when the creditor knows of the bankruptcy filing or has facts that would cause a reasonably prudent person to inquire whether a petition was filed.

In Re Bragg · filed 1985-11-27(h)

However, to have a cause of action under § 362(h) the debtors must prove that the violation was willful. For the violation to have been willful, the bank must have deliberately and intentionally committed an act to obtain possession of property of the estate, the cars, after the bank learned of the filing of the Chapter 13 petition or after the bank possessed sufficient facts which would cause a reasonably prudent person to make further inquiry to determine whether a petition had been filed.

A creditor acting in reliance on a court communication granting relief from the automatic stay cannot be held in contempt for violating the stay.

Evans Temple Church of God in Christ & Community Center, Inc. v. Carnegie Body Co. (In Re Evans Temple Church of God in · filed 1986-01-02

Taking that letter as a granting of relief from the automatic stay, we find that Carnegie and Associates believed that they were acting in accordance with the Court’s instructions and that they cannot be penalized by a finding of contempt in this case.

Section 362(h) does not authorize punitive damages for a stay violation that occurred before the provision took effect.

Promower, Inc. v. Scuderi (In Re Promower, Inc.) · filed 1986-01-10(h)

The law was enacted after the misconduct which is the subject of this complaint. Therefore, the case of In re Tel-A-Communications Consultants, Inc., 50 B.R. 250 (BC Conn.1985), relied upon by plaintiff-trustee, has no application to the present case which was filed before the effective date of the statute. The court finds no authority prior to the enactment of § 362(h) for the award of punitive damages for violation of the bankruptcy stay.

A notice sent in violation of the automatic stay is void and without effect.

A. Dan Chisholm, Inc. v. B.P. Oil Inc., Gulf Products Division (In Re A. Dan Chisholm, Inc.) · filed 1986-02-14(a)(3)

Any notice sent in violation of the automatic stay is void and without effect.

A violation of Section 362’s automatic stay is willful when a creditor acts with knowledge of the bankruptcy filing.

In Re Shafer · filed 1986-04-07

The Court finds the IRS in civil contempt. A stay violation is willful when the party acts with knowledge of the filing of the bankruptcy.

Section 362 requires a creditor whose postpetition repossession violates the automatic stay to restore the status quo.

Matter of Clark · filed 1986-04-07

In this case, we likewise hold that the actions of Credit Union were in violation of the automatic stay and that Credit Union had a duty to restore the status quo.

Section 362(a)(1) stays the commencement of a lawsuit against the debtor, and a suit filed in violation of that stay is void as to the debtor and has no legal effect.

Crews v. Grigsby (In Re White Motor Corp.) · filed 1986-05-19(a)(1)

Therefore, this Court must find that even assuming that Timken and SKF are correct that violations of the automatic stay can be corrected, the action filed by the Crewses in 1980 was void as to White Motor and has no legal effect.

Section 362 makes a mortgage recording invalid when the creditor records it after the debtor files for bankruptcy in violation of the automatic stay.

Puyallup Valley Bank v. Mosby · filed 1986-07-08

However, as M & M Crushing had declared bankruptcy by this time, the recording was invalid, as it violated the automatic bankruptcy stay.

Section 362(a)(3) prohibits a creditor that knows of the automatic stay from intentionally disposing of estate property, and good faith does not prevent a finding of civil contempt.

Michalski v. State Bank & Trust (In Re Taco Ed's, Inc.) · filed 1986-08-13(a)(3)

This willful disposition violates the explicit provisions of 11 U.S.C. § 362(a)(3) and, therefore, subjects the Bank to a finding of contempt. Although the Bank has argued that it acted in good faith and upon the advice of counsel, the absence or presence of good faith does not negate the fact that an intentional disposition of estate property occurred. All that is required for a finding of contempt of stay is that the Bank had knowledge of the automatic stay, and that it disposed of the Debtor’s property subsequent to acquiring its knowledge.

Contempt for a willful violation of § 362(a) requires the creditor to know both of the bankruptcy filing and of the automatic stay.

In re Stewart · filed 1986-09-22(a)

Knowledge of the imposition of the automatic stay, as well as, knowledge of the bankruptcy filing, are mandatory elements when attempting to prove a willful act of contempt under 11 U.S.C. § 362(a) in the Second Circuit.

A creditor that acted in good faith after seriously considering the debtor’s stay claim and consulting competent counsel is not liable for damages for an assumed technical violation of the automatic stay.

Yamin v. Charter National Bank-Westheimer (In Re Yamin) · filed 1986-10-16

Assuming without deciding that there was a technical violation of the automatic stay by Charter Bank and several of its officers, in view of all the circumstances of the case, there is no doubt that Charter Bank acted in good faith, giving serious consideration to the contentions of the debtor. The bank acted under the advisement of exceptionally competent counsel, and cannot be deemed to have flouted the spirit and letter of the statute. Debtor is not entitled to damages.

Section 362(h)'s damages remedy for willful automatic stay violations extends to corporate debtors.

Budget Service Company v. Better Homes Of Virginia, Inc. · filed 1986-11-03(h)

Such a narrow construction of the term would defeat much of the purpose of the section, and we construe the word "individual" to include a corporate debtor.

Section 362(h) allows recovery of costs and attorney’s fees for a willful violation of the automatic stay.

In Re Elegant Concepts, Ltd. · filed 1986-12-15(h)

Because of O’Grady’s willful violation of the § 362 stay, the debtor is entitled to recover from her its costs and attorney’s fees. The Court therefore imposes, pursuant to § 362(h), the same attorney’s fees, $750.00, as the Court assessed under Bankruptcy Rule 9011.

Section 362(a) permits a debtor to recover provable compensatory damages from a creditor or its attorney for violating the automatic stay.

Dubin v. Jakobowski (In Re Stephen W. Grosse, P.C.) · filed 1987-01-09(a)

The failure of the creditor or the creditor’s attorney to abide by the obligation imposed by orders of this court or by the requirements of § 362(a) entitles the debtor to provable compensatory damages.

Section 362(h) does not warrant sanctions for a violation of the automatic stay that does not appear to have been willful.

In Re Lemons & Associates, Inc. · filed 1987-01-14(h)

Wells Fargo’s attempt to obtain an interest in estate property was a violation of the automatic stay. However, since the violation does not appear to have been willful, sanctions under 11 U.S.C. § 362(h) are not deemed appropriate.

Section 362(h) requires willfulness before damages may be imposed for a violation of the automatic stay.

Commonwealth, Department of Public Welfare v. Johnson-Allen (In Re Johnson-Allen) · filed 1987-01-23(h)

For the foregoing reasons, we also decline to find DPW’s conduct, although possibly in violation of the automatic stay, characterized by the element of willfulness, which is required to impose damages under 11 U.S.C. § 362(h).

Section 362(h) allows a trustee to recover reasonable attorney’s fees and costs for a willful violation of the automatic stay and permits punitive damages only in extraordinary circumstances.

Costell v. Costell (In Re Costell) · filed 1987-04-28(h)

Under 11 U.S.C. § 362(h), the Trustee can recover costs and attorney’s fees and, in appropriate circumstances, punitive damages. The prerequisite for recovery is that the violation of the stay was “willful”. ... This Court will award punitive damages for violation of § 362 only under extraordinary circumstances. The facts of this case do not appear to warrant any award of punitive damages, even when viewing the facts in a light most favorable to the Trustee. It does appear, however, that the Trustee is entitled to reasonable attorney’s fees and costs for his efforts to recover property transferred in violation of the automatic stay.

Section 362(h) warrants sanctions when a creditor willfully violates the automatic stay by refusing to disburse funds owed to the debtor.

Matter of Woloschak Farms · filed 1987-05-15(h)

With regard to the balance of the advance deficiency payment, we think that ASCS is in clear violation of the automatic stay in its refusal to disburse the balance of the payment to the Debtor. By counsel’s own admission, ASCS would not have turned these funds over to the Debtor absent the instant Motion being filed by the Debtor. In effect, ASCS has said to the Debtor, “If you want it, you have to come and get it.” We think that this sort of action by a creditor is clearly prescribed by Sec. 362 and, further, we think it to be the sort of action requiring the imposition of sanctions under Sec. 362(h) as being willful.

Section 362(h) permits damages for a willful stay violation when a creditor’s agents receive oral notice of the bankruptcy filing and the creditor continues prohibited action.

Matter of Davis · filed 1987-05-29(h)

Oral notice to a creditor’s agents is sufficient notice of a bankruptcy filing. ... The Court finds that due notice of the bankruptcy was given at least four times to agents of THE DEPARTMENT OF LIQUOR CONTROL and THE LIQUOR CONTROL COMMISSION and that there has been a willful violation of the automatic stay.

Section 362(h) permits damages for a willful stay violation when a creditor acts with knowledge of the bankruptcy filing; the IRS is charged with knowledge held by its agents.

In Re Santa Rosa Truck Stop, Inc. · filed 1987-06-12(h)

The burden has to be on the I.R.S. to develop sufficient procedures to avoid the continuation of its collection efforts once a petition has been filed. ... A stay violation is willful when the party acts with knowledge of the filing of the bankruptcy. ... Accordingly, the Court finds the I.R.S. in civil contempt for willful violation of the automatic stay and subject to the assessment of damages pursuant to Title 11 U.S.C. § 362(h).

Section 362(h) authorizes punitive damages for a willful violation of the automatic stay, but does not apply to misconduct before its effective date.

Promower, Inc. v. Scuderi (In Re Promower, Inc.) · filed 1987-05-27(h)

Section 362(h) of the Bankruptcy Code authorizes punitive damages for a willful violation of the bankruptcy stay; however, that section was enacted months after the misconduct which is the subject of this complaint and, therefore, is not applicable to the present case.

A sheriff sale of estate property held after the automatic stay takes effect violates the stay and is void.

In Re Ward · filed 1987-06-05(a)(2)

The sheriff sale of January 24, 1986, was held in violation of the stay and is therefore void and without effect.

Section 362 does not warrant contempt for failure to undo a judgment entered in violation of the automatic stay when the creditor moves to vacate it within two weeks after learning of the bankruptcy.

In Re Wright · filed 1987-06-08

A creditor who learns of a pending bankruptcy proceeding may have a duty to undo actions taken in violation of 11 U.S.C. § 362. ... In this case, however, it is undisputed that Mr. Gouze moved to undo the judgment within two weeks after debtor’s counsel informed him of the bankruptcy proceedings. ... On this record, a finding of contempt is simply not warranted.

Section 362(h) treats deliberate conduct taken with knowledge of the bankruptcy filing as a willful stay violation without requiring specific intent to violate a court order.

Wagner v. Ivory (In Re Wagner) · filed 1987-06-12(h)

In effect, the willfulness requirement refers to the deliberateness of the conduct and the knowledge of the bankruptcy filing, not to a specific intent to violate a court order.

Section 362(h) allows recovery of attorneys’ fees incurred to remedy a willful stay violation after the collateral has been recovered.

Joslyn v. Ford Motor Credit Corp. (In Re Joslyn) · filed 1987-06-30(h)

In other words, attorneys’ fees do not stop accruing under § 362(h) as of the collateral recovery date.

Section 362 makes a creditor’s repossession of a debtor’s car after learning of the bankruptcy filing a willful violation of the automatic stay.

In Re Locasico · filed 1987-07-06

The court finds that Lake Clarke Motors had knowledge of the filing of the bankruptcy petition on or about June 9,1987 at or about 4:13 p.m. Thereafter, it is undisputed that Lake Clarke Motors proceeded to repossess debtor’s 1975 Datson 280Z. This action constitutes a willful violation of 11 U.S.C. § 362.

A creditor that learns of the automatic stay willfully violates it by refusing to dismiss a foreclosure action filed after the debtor’s bankruptcy petition.

In re Pierre · filed 1987-07-31

The secured creditor, Fleet Mortgage Corporation, is found in civil contempt for failure to dismiss a suit to foreclose debt- or’s mortgage (Case No. 87-21618, in the Circuit Court of the Eleventh Judicial Circuit of Florida) after having received notice of this court’s automatic stay.

Section 362(h) requires a willful violation of the automatic stay before a debtor can recover damages.

Little v. Taylor (In Re Taylor) · filed 1987-08-07(h)

In order for the debtor to recover the damages she seeks, it must be shown that the violation of the automatic stay was willful. 11 U.S.C. section 362(h).

Section 362(h) permits debtors to recover attorney fees and costs incurred in pursuing a remedy for a willful violation of the automatic stay.

Stucka v. United States of America (In Re Stucka) · filed 1987-09-09(h)

The facts are not in dispute, and as a matter of law the Court holds that the defendants committed willful violations of the automatic stay. Under section 362(h) debtors may recover their attorney fees and costs incurred in pursuing their remedy here.

Section 362 stays civil contempt proceedings brought by private parties unless a specific subsection (b) exception applies.

Dock C-Food Ltd. v. Cherry (In Re Cherry) · filed 1987-09-22(b)

We believe that the automatic stay applies to all civil contempt proceedings not exempted by some specific provision of 11 U.S.C. § 362(b), albeit that it may be easier to obtain relief from the stay under a “balancing of the hardships” test when the proceeding focuses solely on injunctive relief.

Section 362(b)(1)’s exception for criminal proceedings does not cover civil contempt proceedings enforcing a private judgment.

In Re Dervaes · filed 1987-10-09(b)(1)

I conclude that contempt proceedings do not fall within the statutory exception of § 362(b)(1).

Section 362(h) permits recovery of actual damages, punitive damages, costs, and attorney’s fees for a willful violation of the automatic stay through an improper offset and continued retention of a debtor’s tax refund.

Ketelsen v. United States Ex Rel. Farmers Home Administration (In Re Ketelsen) · filed 1987-09-25(h)

That the Defendant’s actions and inactions constitute a direct violation of 11 U.S.C. § 362 and Plaintiffs are accordingly entitled to recover actual and punitive damages, costs and attorney’s fees under 11 U.S.C. § 362(h).

Section 362(h) permits a corporate debtor to recover damages for a willful violation of the automatic stay.

Nash Phillips/Copus, Inc. v. El Paso Floor, Inc. (In Re Nash Phillips/Copus, Inc.) · filed 1987-10-16(h)

This Court is convinced that subsection (h) must be read with the rest of Code Section 362. A reading of that subsection does not suggest any basis for such a narrow construction and in light of the intent of Code Section 362(a) to give debtors broad relief from all entities it seems highly unlikely that only individual debtors are intended to have a remedy against those who willfully violate the automatic stay. This narrow interpretation is rejected by this Court.

Acts taken in violation of the automatic stay are voidable because § 362(d) permits a court to modify or condition the stay.

Washington Mutual Savings Bank v. James (In Re Brooks) · filed 1987-10-08(d)

Bankruptcy Code § 362(d) permits a court to grant relief from stay by “.terminating, annually, modifying, or conditioning such stay — .” These varying powers show a Congressional intention that acts taken in violation of the stay are not void but voidable. Otherwise, there would be nothing to modify or condition.

Section 362(h) does not support an award of attorney’s fees for a willful stay violation when the stay’s application to the claim is too uncertain to justify finding willfulness.

Richard Gonzales, Juliana Gonzales and Michael Dodge v. Barbara Parks and Jerome Parks · filed 1987-10-20(h)

At the least, the applicability of the automatic stay provisions to the Parkses’ state court claim is not so clear that the bankruptcy court was justified in concluding that the Parkses had “willfully” violated those provisions. We therefore reverse the award of attorney’s fees.

Section 362(h) requires compensatory damages for a willful stay violation and permits punitive damages when the violation shows arrogant defiance of federal law.

Matter of Mullarkey · filed 1987-11-19(h)

Where willful violation of the stay is demonstrated, compensatory damages are mandatory. Where an “arrogant defiance of federal law” is demonstrated, punitive damages are appropriate.

Section 362(a) renders a tax sale conducted in violation of the automatic stay void and invalidates a tax deed based on that sale.

Richard v. City of Chicago · filed 1987-11-23(a)

Since the underlying sale, conducted in violation of § 362, is void, the County had no property to transfer , to Midwest, and we find the deed invalid.

A violation of the automatic stay that is not deliberate does not warrant a contempt finding.

Smith v. Smith (In Re Smith) · filed 1988-01-13(a)

However, the court finds that the action of her and her attorney was not a deliberate violation of the automatic stay. ... The court finds that Vicki is not guilty of contempt of court.

Section 362(a) bars a landlord from obtaining a restraining order and locking a debtor out after the bankruptcy filing; a willful violation can preclude rent for the period of exclusion.

In Re Cafe partners/washington 1983 · filed 1988-01-14(a)

This Court finds and concludes that the Landlord’s acts of obtaining a temporary restraining order, changing locks, and excluding access to the premises constituted a willful, flagrant violation of the automatic stay, and that such violation precludes the Landlord from having a valid claim for rent during the period of exclusion.

Section 362(h) permits sanctions for an injurious, willful violation of the automatic stay, but not for an inadvertent technical violation made in good faith.

Foreston Coal International, Inc. v. Red Ash Coal & Coke Corp. (In Re Red Ash Coal & Coke Corp.) · filed 1988-02-26(h)

Nevertheless, to impose sanctions, the debtor must have been injured by a willful violation of the automatic stay. ... Sanctions are inappropriate for a mere technical violation of the stay or when the violator has acted in good faith.

Section 362(h) requires more than a willful stay violation for punitive damages; a creditor’s good-faith setoff under unsettled law, without oppressive or fraudulent conduct, does not warrant them.

United States Ex Rel. Farmers Home Administration v. Ketelsen · filed 1988-03-04(h)

This Court’s discussion of law surrounding the application of sections 553 and 362 to the facts of this case is evidence of the fact that the law surrounding the issue of offset is not clearly established. In other words, although the FmHA had violated the stay, it was doing so with a belief that its actions were consistent with the law surrounding offset. This Court finds that FmHA’s position was not taken in an oppressive or fraudulent manner. Accordingly, this Court holds that the bankruptcy court’s award of punitive damages under the facts presented was clearly erroneous.

Section 362(h) allows punitive damages for a willful stay violation only if the violation was deliberate.

Allen v. Internal Revenue Service (In Re Allen) · filed 1988-03-16(h)

Fundamental faimess requires that for punitive damages to be imposed, the willful violation must have been deliberate.

Section 362 makes a postpetition sale in violation of the automatic stay void despite the creditor’s good faith and lack of notice when the debtor has not misused the stay.

Smith v. First of America Bank-Michigan, N.A. (In Re Smith) · filed 1988-04-26

Under the facts of this case, the Court believes that it would be improper to recognize an exception to the general rule that a violation of a stay will be void even where there was no actual notice of the existence of the stay.

A violation of Section 362’s automatic stay does not itself require return of estate property; avoidance and recovery proceed under Sections 549 and 550.

Armstrong v. First American Bank (In Re Haugen Construction Service, Inc.) · filed 1988-06-03(a)(6)

A violation of the automatic stay, however, does not automatically cause return of the estate property. Avoidance of the transfer and return of the property are implemented via §§ 549 and 550 of the Bankruptcy Code, respectively.

Section 362(h) awards damages and attorney’s fees for injury caused by a willful stay violation, but not for fees incurred opposing a later motion for relief from stay.

In re Turner · filed 1988-06-08(h)

No authority exists for awarding damages and/or attorney’s fees as a result of the filing of a motion for relief from stay. An award of damages and/or attorney’s fees is required, pursuant to section 362(h), where a willful violation of the automatic stay occurs and the debtor is injured. In this case, the debtor’s counsel claims the debtor was injured in that he had to pay an attorney to oppose the Banks’ Motion. Any injury caused by the Banks’ willful violation of 11 U.S.C. § 362(a) had to occur prior to the filing of the Banks’ Motion. The injury to the debtor could not occur afterward.

Section 362(a) stays proceedings against property in which the bankruptcy estate has a partial interest, and a foreclosure sale that violates the stay is void.

Jones v. Wingo (In Re Wingo) · filed 1988-06-23(a)

The automatic stay of 11 U.S.C. § 362 operated to stay any proceedings against that property. The general rule is that acts in violation of the automatic stay are void, not merely voidable. ... Because the foreclosure sale was in violation of the automatic stay, the sale was void.

Section 362(h) requires facts showing a willful violation of the automatic stay before sanctions may be awarded.

In Re Harvey · filed 1988-07-18(h)

In this context, Debtor has pleaded no facts that could, if established, demonstrate that Concordia acted in “willful” violation of § 362, as required by § 362(h), so as to warrant consideration of sanctions.

Section 362(h) permits an award of attorney’s fees against the United States for a willful violation of the automatic stay.

In Re Academy Answering Services, Inc. · filed 1988-07-22(h)

Thus, it appears that the I.R.S.’s argument that this Court is without jurisdiction to award attorney’s fees against the United States under § 362(h), is without merit.

A willful violation of the automatic stay can support a civil contempt order.

In Re Newport Offshore, Ltd. · filed 1988-07-22

In the instant case we classify the Army’s behavior as we see it, and hold the Army in civil contempt for its willful violation of both the automatic stay and the Order Confirming the Plan of Reorganization.

A tax sale conducted in violation of the automatic stay is void even if the participants lacked notice or knowledge of the stay.

Greer v. Perry County (In Re Greer) · filed 1988-08-18(a)

Thus, the County’s tax sale conducted in violation of the automatic stay was void and without legal effect regardless of whether the participants had notice or knowledge of the existence of the stay.

Section 362(h) permits sanctions against a creditor only when its agents or employees deliberately and intentionally violate the automatic stay.

Utah State Credit Union v. Skinner (In Re Skinner) · filed 1988-08-10(h)

The Credit Union can only act through its agents and employees. In order to justify sanctions pursuant to section 362(h), the bankruptcy court had to have found that the Credit Union’s agents or employees deliberately and intentionally violated the automatic stay by selling the automobile after receiving notice of the Skinners’ bankruptcy filing.

Section 362(h) requires actual damages for a willful stay violation to be supported by reasonably specific proof of loss and causation, rather than speculation or conjecture.

David ARCHER, Plaintiff-Appellee, v. MACOMB COUNTY BANK, Defendant-Appellant · filed 1988-08-11(h)

Here, where the acts which constitute the violation occurred at specific, identifiable times and where the victim is a business which presumably keeps accurate records, the proof of damages should be relatively specific and certain. After reviewing the record, however, we are convinced that the bankruptcy court’s award of actual damages was erroneous because it was based on speculative evidence and mere conjecture.

A creditor can willfully violate the automatic stay when its collection agents know of the bankruptcy filing and the stay, because their knowledge is imputed to the creditor.

Haile v. New York State Higher Education Services Corp. · filed 1988-08-24(a)

Because the NYSHESC had knowledge of the bankruptcy filing and of the automatic stay as imputed to it through its agents, its actions can be considered willful.

Section 362(h) provides the remedy for a willful violation of the automatic stay and precludes a separate § 1983 claim based on that violation.

Periera v. Chapman · filed 1988-11-01(h)

For these reasons, this Court dismisses this action under the first exception to the Thiboutot rule. The plaintiff’s attempt to base a section 1983 claim on the violation of the automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a), fails as a matter of law and therefore must be dismissed. Because the plaintiff can state a claim under section 362(h) in an action properly filed in the bankruptcy court, this dismissal operates without prejudice.

A creditor that repossesses collateral without notice of a bankruptcy willfully violates the automatic stay by retaining it after receiving notice of the bankruptcy.

In Re Holman · filed 1988-10-28(a)

Hence, from the point that it received notice of Holman’s bankruptcy case — April 13, 1988 — Cash Cars’ continued retention of the Automobile constituted a willful violation of the automatic stay.

Actions taken in violation of the automatic stay are void even if the creditor did not know of the bankruptcy filing; lack of notice affects contempt liability.

Purnell v. Citicorp Homeowners Services, Inc. (In Re Purnell) · filed 1988-11-02(a)

It is generally recognized that actions taken in violation of the automatic stay generated by 11 U.S.C. § 362(a) are null and void. ... Whether the creditor knew of this bankruptcy filing prior to taking the prohibited action of foreclosure goes to the question of contempt, not to the legitimacy of the postpetition activity.

A debtor’s failure to prove damages caused by an automatic-stay violation can defeat a claim under § 362(h).

Koresko v. Chase Manhattan Financial Services, Inc. (In Re Koresko) · filed 1988-11-04(h)

The contents of the Stipulation of Facts fail to establish any damages resulting to the Debtors as a consequence of the stay violation, which can be fatal to a claim under § 362(h).

Filing an interpleader action and obtaining an order restraining a debtor from collecting disputed notes violates the automatic stay, and knowingly doing so is a willful violation despite the filers’ motives.

Temlock v. Falls Building, Ltd. (In Re Falls Building, Ltd.) · filed 1988-11-21

Plaintiffs, by the filing of their inter-pleader action and by seeking and obtaining a Temporary Restraining Order violated the automatic stay. ... Plaintiffs’ conduct falls within the ambit of § 362(h). ... Plaintiffs’ actions, notwithstanding their motives, were therefore in “willful” violation of the automatic stay of § 362(a)(1).

Section 362(h) requires a willful violation of the automatic stay for damages; an inadvertent setoff does not meet that requirement.

Mitchell v. Internal Revenue Service (In re Mitchell) · filed 1988-12-05(h)

Regardless of the current status of the issue about bankruptcy court contempt power any violation of the stay will be judged by the standards of § 362(h). Apparently there was a technical, inadvertent violation of the stay when the $2,000 was set off. ... Furthermore violations of the stay are void and of no effect, and the Code requires a showing of willfulness which is absent from this record.

Section 362(h) requires knowledge of the bankruptcy for a stay violation to be willful in circumstances like these.

In Re Haan · filed 1988-12-01(h)

Liability for sanctions pursuant to § 362(h) requires a “willful” violation of the automatic stay. Generally, to constitute a willful violation of the stay in circumstances such as these requires knowledge of the existence of a bankruptcy.

Section 362(h) allows recovery of reasonable costs and attorney’s fees when a creditor willfully continues an automatic stay violation after the obligation to stop and undo it is clear.

University Medical Center v. Bowen (In Re University Medical Center) · filed 1988-12-07(h)

We hold that, under 11 U.S.C. § 362(h), HHS is obliged to return the $15,-000.00 and compensate opposing counsel for all reasonable attorney’s fees accrued as a result of maintaining these matters after August 12, 1988, in addition to directing HHS to pay all post-petition Medicare payments to the Debtor.

An award of attorney’s fees for a stay violation under § 362(h) can be an abuse of discretion when the violation is at most technical and the debtor’s extended litigation serves its own purposes.

Advanced Professional Home Health Care Inc. v. Bowen (In Re Advanced Professional Home Health Care Inc.) · filed 1988-12-16(h)

As to the award of attorney’s fees, since any violation of the automatic stay by the Secretary was a technical one at best and since the extended legal effort by Advanced was to serve its own parochial purposes, the award of attorney’s fees was an abuse of discretion, to the extent there was any discretion to make such an award.

Section 362(h) requires a creditor that violated the stay without knowing of the bankruptcy to take reasonable action to undo the violation once it learns of the filing or the stay.

Adams v. Philadelphia Housing Authority (In Re Adams) · filed 1989-01-09(h)

We further recognize that, upon becoming aware of the bankruptcy filing and/or the impact of the stay, a party who has acted in violation of the stay without previous knowledge of the debtor’s bankruptcy filing is obliged to take any reasonable action to undo a previous, innocent violation of the stay.

Section 362(h) does not authorize attorney’s fee awards against the United States because Congress did not waive sovereign immunity for those awards.

United States v. Academy Answering Service, Inc. (In Re Academy Answering Service, Inc.) · filed 1989-01-31(h)

The government is correct in concluding, in accordance with accepted rules of construction, that the absence from § 362(h) of conditions Congress expressly incorporated in other statutes is strong evidence that Congress did not intend that the government be held liable for fees under § 362(h).

Section 362(h) requires actual damages and attorney fees when a creditor willfully violates the automatic stay by continuing payroll deductions after being asked to stop.

In Re Armstrong · filed 1989-02-10(h)

In the present case, Super Saver willfully violated the automatic stay when it failed to terminate the payroll deduction from the debtor’s wages despite repeated requests by the debtor to do so. To compensate the debtor for her actual damages resulting from this violation, as mandated by § 362(h), Super Saver will be required to release the funds deducted postpetition and to pay the debtor’s attorney fees incurred in seeking a return of those funds and a termination of the payroll deduction.

Section 362(h) permits a creditor injured by a willful violation of the automatic stay to recover damages.

Homer National Bank v. Namie · filed 1989-02-21(h)

If Congress intended to limit the remedies in § 362(h) to debtors it could have done so by the simple expedient of replacing the term “individual” with “debtor.” Congress chose not to do so, and this court is unwilling to impose limitations not supported by the statutory language, jurisprudence, or legislative history. Moreover, it seems illogical to conclude that Congress intended to limit § 362(h) to debtors when one of the principal purposes behind the automatic stay is to protect creditors from unequal treatment.

Section 362(h) permits a debtor to recover damages when a creditor willfully pursues a state court contempt motion after receiving notice of the bankruptcy filing.

Sermersheim v. Sermersheim (In Re Sermersheim) · filed 1989-03-06(h)

The court, as previously discussed, finds that defendants received notice of Debtor’s petition. Yet, defendants pursued defendant Cherie’s motion for contempt in the domestic relations court. Defendants did not seek relief from stay prior to initiation or subsequent prosecution of the motion, nor did defendant Cherie seek determination of the dischargeability of the debts in issue through the initiation of an adversary proceeding in this court. Defendants are, therefore, in violation of the automatic stay attendant to the filing of Debtor’s petition. Debtor’s complaint is, then, well taken and Debtor should recover damages, pursuant to 11 U.S.C. § 362(h) resulting from defendants’ willful violation of stay.

Section 362(h) allows reasonable attorney’s fees when a stay violation significantly jeopardizes a debtor, even if the creditor believed in good faith that the stay did not apply and the debtor seeks no other damages; those circumstances may affect the fee amount.

McLaughlin v. Fireman's Trust Mortgage Corp. (In Re McLaughlin) · filed 1989-02-22(h)

The specific questions raised are as follows: (1) May a party whose violation of the stay is subjectively innocent and relatively justifiable be held liable for attorneys’ fees to the debtor’s counsel? and (2) May counsel for a debtor who has foregone any claim to damages for the stay violation be classified as “[a]n individual injured” by a stay violation entitled to recover such fees? ... We hold that both of these questions must be answered in the affirmative, but that both raise issues which are relevant to consider in fixing the amount of an award pursuant to § 362(h).

Section 362(h) permits recovery of actual court costs for a willful stay violation, but not reimbursement of other expenses.

In Re Reed · filed 1989-04-24(h)

However, the expenses of $17.20 are noncom-pensable since we find that the term “costs” under § 362(h) encompasses actual Court costs (of which there are none in this case) and not the reimbursement of expenses.

Section 362(a)(3) does not require a creditor to undo a prepetition transfer merely because the transfer may later be avoided.

Orsa Associates, Inc. v. MBA Financial, Inc. (In Re Orsa Associates) · filed 1989-04-26(a)(3)

We know of no authority, and the Debtors have cited none, which holds that a creditor’s refusal to undo a pre-petition transfer on the ground that it might be successfully avoided has been found to constitute a violation of the automatic stay.

Section 362(h) treats a creditor’s act prohibited by the automatic stay as a willful violation when the creditor has notice of the bankruptcy case and acts intentionally.

In Re Carrigan · filed 1989-04-27(h)

A willful violation occurs when a creditor with notice of the bankruptcy case nevertheless performs one of the acts prohibited by § 362(a). Screws committed a willful violation of the § 362(a) stay for which the debtor is entitled to relief as provided in § 362(h).

Section 362(h) treats a stay violation as willful when the violator knows of the stay and intentionally takes the action that violates it; specific intent to violate the stay and a good-faith belief in a right to the property are unnecessary.

In Re Edith Bloom, M.D., Debtor. William A. Goichman v. Edith Bloom, M.D. · filed 1989-05-15(h)

A useful definition, which we now adopt, was provided by the bankruptcy court for the district of the District of Columbia: A “willful violation” does not require a specific intent to violate the automatic stay. Rather, the statute provides for damages upon a finding that the defendant knew of the automatic stay and that the defendant’s actions which violated the stay were intentional. Whether the party believes in good faith that it had a right to the property is not relevant to whether the act was “willful” or whether compensation must be awarded.

Section 362(h) treats a creditor’s repeated efforts to collect a prepetition debt after notice of the bankruptcy as a willful violation of the automatic stay.

In Re Jacobs · filed 1989-06-05(h)

Here, American Express’ conduct plainly was willfully violative of the automatic stay. Despite ample notice of the penden-cy of Debtor's bankruptcy proceeding, American Express has repeatedly harassed the Debtor in an attempt to collect its pre-petition debt.

Section 362(h) requires compensatory damages for a willful stay violation when the actor knew of the bankruptcy filing and deliberately acted; specific intent to violate a court order is unnecessary.

In Re Kilby · filed 1989-05-17(h)

As the clear wording of § 362(h) indicates, once a “willful” violation of the automatic stay is established, compensatory damages are mandatory. The willfulness requirement refers to the deliberateness of the conduct and the knowledge of the bankruptcy filing, not to a specific intent to violate a court order.

Section 362(h) allows a debtor to recover attorney fees incurred in a second contempt motion as damages resulting from an automatic stay violation.

In re Armstrong · filed 1989-05-19(h)

To compensate the debtor for these damages resulting from the violation of the automatic stay, Super Saver will be required, pursuant to 11 U.S.C. § 362(h), to pay the debt- or’s attorney fees incurred in bringing this second contempt motion.

Section 362(h) permits damages for a willful stay violation when a creditor refuses to provide ticket stock unless the debtor pays prepetition debts.

Karsh Travel, Inc. v. Airlines Reporting Corp. (In Re Karsh Travel, Inc.) · filed 1989-07-27(h)

The Bankruptcy Court awarded damages against ARC under section 362(h). The Bankruptcy Court found that ARC willfully violated the automatic stay by refusing to issue new ticket stock to Karsh unless the pre-petition debts were paid. The court made its findings in part on the basis of letters sent to Karsh by ARC. This court believes that the Bankruptcy Court’s decision was supported both by sufficient evidence in the record and by the law.

Section 362(h) permits recovery of interest on funds wrongfully withheld in violation of the automatic stay and reasonable attorneys’ fees incurred to recover them.

Orient River Investments v. Equibank (In Re Orient River Investments, Inc.) · filed 1989-10-16(h)

The Debtor is entitled to interest on the funds directed to be turned over plus reasonable attorneys’ fees incurred in prosecuting this action, pursuant to 11 U.S.C. § 362(h).

Section 362 permits avoidance of administrative complaints filed in violation of the automatic stay when the filing party offers no reason for failing to seek stay relief.

City of Phoenix v. A.J. Bayless Markets, Inc. (In Re A.J. Bayless Markets, Inc.) · filed 1989-11-20

The City has made no attempt to explain why it filed the complaints without first seeking relief from the automatic stay. Under these circumstances, it would be inappropriate not to avoid the complaints. To refrain from doing so would encourage future violations.

A creditor that learns of a bankruptcy after making a postpetition offset willfully violates the automatic stay if it fails to undo the offset.

Bunch v. NCNB South Carolina (In Re Bunch) · filed 1990-02-01(h)

From the testimony and exhibits, in conjunction with the above cases, this court finds and concludes that the automatic stay was violated as a result of the defendant's post-petition offset of the plaintiffs’ account. Although it may be questionable whether the defendant had actual knowledge of the debtors’ filing on the date of the offset, the defendant thereafter acquired actual knowledge of the debtors’ bankruptcy and failed to take steps to undo and correct the offset result. This constitutes a willful act by the defendant.