11 U.S.C. § 362

Section 362(h) permits recovery of costs and expenses when a creditor willfully retains estate property in violation of the automatic stay.

Cohen v. Un-Ltd. Holdings, Inc. (In Re Nelco, Ltd.) · filed 1999-12-27(h)

Accordingly, the court concludes that the defendant Un-Ltd.’s acts constituted a willful violation of the automatic stay entitling the plaintiff to recover a portion of the costs and expenses incurred in this adversary proceeding as related to the 1995 refund.

Section 362(h) gives bankruptcy courts discretion to award punitive damages in appropriate circumstances after finding a willful violation of the automatic stay.

Joseph R. Solfanelli Natalie G. Solfanelli v. Corestates Bank N.A., Successor by Merger to Meridian Bank Stevens & Lee M · filed 2000-02-08(h)

Once the Bankruptcy Court finds a willful violation, it has discretion to impose punitive damages in “appropriate circumstances.” We find that the Bankruptcy Court’s award of $10,000 punitive damages is not clearly erroneous, but rather, appropriate, and we will let it stand.

Section 362(h) allows compensatory damages and attorney fees for a willful violation of the automatic stay.

Lohbauer v. Credit Based Assets Servicing (In Re Lohbauer) · filed 2000-04-11(h)

Accordingly, in conformance with 11 U.S.C. § 362(h) it is ORDERED that the Plaintiffs, Daniel and Tamara Lohbauer, be, and are hereby awarded against the Defendant, Credit Based Assets Servicing, the sum of Six Thousand Dollars ($6,000.00) in compensatory damages for the Defendant’s willful violation of the Automatic Stay as contained in 11 U.S.C. § 362(a). ... It is FURTHER ORDERED that the Plaintiffs, Daniel and Tamara Lohbauer, be, and are hereby awarded against the Defendant, Credit Based Assets Servicing, the sum of One Thousand Five Hundred Dollars ($1,500.00) in attorney fees for the Defendant’s willful violation of the Automatic Stay as contained in 11 U.S.C. § 362(a).

Section 362(h) makes a stay violation actionable for damages only if it is willful; a creditor that lacks knowledge of the bankruptcy filing when it makes a collection call has violated the stay but has not committed an actionable willful violation.

In Re Skeen · filed 2000-05-05(h)

Thus, whether City Finance made one or two telephone calls to Mrs. Skeen on November 19, the court finds that at the time of the telephone calls City Finance did not know that the debtors had actually filed for bankruptcy relief. As such, while the telephone calls were in violation of the stay, the calls were not willful and therefore not actionable.

Section 362(h) makes a party liable for resulting damages, including reasonable attorney’s fees, when it continues to defend a judgment entered in violation of the automatic stay after learning the stay applied.

In Re Halas · filed 2000-06-02(h)

Platek’s action while initially advertent became willful when he vigorously defended against the motion to vacate the default judgment that was entered in violation of the stay. Pla-tek became aware from the bankruptcy docket that the default judgment was void, yet he would not back down. Accordingly, Platek must be held liable for any damages, including reasonable attorney’s fees that debtor incurred from that point as a result of his continued violation of stay.

Section 362(h) permits a debtor to seek damages for a stay violation in a contempt proceeding, so a later damages claim arising from the same violation may be barred by res judicata.

Matthews v. Germantown Injury Care Ctr · filed 2000-06-06(h)

... Alexis consciously chose to proceed under 362(h), an action that permitted the addition of the damages claim they later brought.

Section 362(h) permits damages for a willful automatic-stay violation only when the debtor suffers injury from the violation.

Rashid v. Powel · filed 2000-06-23(h)

An injured debtor may only recover actual damages including attorneys' fees for a willful violation of a stay and, in appropriate circumstances, may recover punitive damages. 11 U.S.C. S 362(h). ... We agree with the Bankruptcy and District Courts that Rashid cannot allege any injury from the lien.

A creditor willfully violates the automatic stay by obtaining a writ in violation of the stay and then failing to take necessary steps to vacate it.

In Re Banks · filed 2000-09-13(h)

Accordingly, the Court concludes that Ralph Roberts Realty willfully violated the automatic stay by obtaining the writ of restitution and by failing to act as necessary to vacate the writ.

Section 362(h) permits damages to be assessed jointly and severally against a creditor and its collection counsel for a willful violation of the automatic stay.

In Re Johnson · filed 2000-09-29(h)

The Court has considered four factors in reaching the conclusion that damages should be assessed jointly and severally against the Creditor and its former counsel, Mr. O’Brien, based upon the willful stay violation and pursuant to section 362(h) of the United States Bankruptcy Code.

A claim under § 362(a)(6) against a creditor’s attorney requires a willful violation of the automatic stay under § 362(h).

Cooper v. Litton Loan Servicing (In Re Cooper) · filed 2000-08-28(a)(6)

Absent a wilful violation of the automatic stay, as required by § 362(h) of the Bankruptcy Code, there is no cause of action under § 362(a)(6) with regard to Smith and Hiatt, P.A.

Under § 362(h), repossessing estate property after a bankruptcy filing with notice of the automatic stay is a willful stay violation.

In Re Meeks · filed 2000-11-13(h)

The Court finds that Onyx willfully violated the automatic stay in the instant Case by repossessing property of the estate post-petition with notice that an automatic stay was in effect.

Section 362(h) does not award damages for a violation of the automatic stay that was not willful and caused no actual injury.

Salem v. Paroli (In Re Salem) · filed 2001-03-26(h)

As a result, Justice Pagones never signed a judgment to sell plaintiffs home and plaintiff was never displaced therefrom; thus he suffered no actual damages. ... Therefore, although we find that there was a violation of the automatic stay, we find neither willfulness nor malice in that action, and affirm Judge Berk’s June 28, 2000 order.

Section 362(h) treats continued computer-generated collection letters after notice of bankruptcy as a willful stay violation when the creditor fails to stop them.

In Re Rijos · filed 2001-04-05(h)

This Court holds that by failing to codify its computers after learning of the bankruptcy petition so that they stop generating collection letters, BBV willfully violated the stay.

Section 362(h) allows an individual to recover damages for a willful stay violation when the creditor knew of the stay and intended the acts that violated it, without requiring specific intent to violate the stay.

Walls v. Wells Fargo Bank, N.A. (In Re Walls) · filed 2001-05-07(h)

Section 362(h) requires a wilful violation of the automatic stay in order for an individual to recover damages. Fqr a violation of the automatic stay to be wilful, the creditor does not have to have a specific intent to violate the automatic stay. It is sufficient if the creditor knew of the automatic stay and intended the acts in violation of the stay.

Section 362(h) requires a counterclaim seeking relief for violation of the automatic stay to plead a willful violation of the stay.

Northeast Alliance Federal Credit Union v. Garcia (In Re Garcia) · filed 2001-04-11(h)

This counterclaim — initially drafted by the Debt- or’s former counsel — fails to plead either a "wilful” violation of the automatic stay of Section 362(a) under Section 362(h), or an avoidable set-off under Section 522(h).

A debtor must offer evidence of an automatic stay violation to sustain a claim for damages based on that violation.

Robbins v. U.S. Dept. of Education (In Re Robbins) · filed 2001-04-23(a)

Turning now to the Plaintiffs second cause of action, the Plaintiff in her complaint alleged that the Defendant knowingly and willfully violated the automatic stay as set forth in 11 U.S.C. § 362(a). As a result, the Plaintiff seeks damages in accordance with paragraph (h) of § 362. The Plaintiff, however, at the Trial held on this matter offered no evidence to support this assertion; thus the Plaintiffs cause of action for the Defendant’s alleged violation of § 362(a) will be Dismissed.

Section 362(h) allows a trustee to recover damages, costs, and attorney fees when a creditor knowingly continues to hold estate property after receiving notice of the bankruptcy.

Mullis v. USA Restaurant Equipment Co. (In re Harsh) · filed 2001-08-27(h)

As of July 17, 2000, the daté they received Trustee’s second letter, Defendants had knowledge of Debtor’s bankruptcy filing and of the unlawful nature of their actions. Thereafter, Defendants continued to exercise control of the equipment and refused all of Trustee’s requests for information and for turnover of the equipment. Such behavior constitutes a knowing and willful violation of the automatic stay. As a result of Defendants’ willful violation, Trustee is entitled to recover damages, costs, and attorney fees associated with the violation.

Section 362(h) permits recovery of nominal damages for emotional distress and lost pay caused by a willful automatic-stay violation when the evidence does not establish the amount claimed.

Headrick v. Georgia (In Re Headrick) · filed 2001-11-30(h)

11 U.S.C. § 362(h), however, mandates that the offending party shall be responsible for any actual damages resulting from breaking the automatic stay. ... The evidence fails to establish $2,000 in damages; however I do find that the Headricks are entitled to nominal damages of $200 for the emotional distress and lost pay resulting from the 11 U.S.C. § 362 automatic stay violation.

Section 362(h) allows an injured individual to recover attorneys’ fees and costs when a creditor deliberately violates the automatic stay with knowledge of the bankruptcy petition.

Mauck v. C-Bass Mortgage Loan Buyout Trust 2000-A (In Re Mauck) · filed 2002-02-01(h)

Consequently, when Defendants violated the automatic stay by issuing a foreclosure notice to the Maucks, they did so with knowledge of the bankruptcy. Such an action is a willful violation of the automatic stay and the Court will award the Maucks their attorneys’ fees and costs.

Section 362(h) permits punitive damages when a creditor who knows of the automatic stay threatens the debtor with bodily harm.

Varela v. Ocasio (In re Ocasio) · filed 2002-02-21(h)

Nevertheless, he not only accosted the Debtor while aware of the existence of the automatic stay, he threatened the Debtor with bodily harm. ... Accordingly to satisfy the primary purpose of a punitive damage award, namely to change a creditors behavior, a $9,000 award is justified.

Compensatory damages for a violation of the automatic stay may be determined in the § 362(a) proceeding even when the damages inquiry requires deciding issues that otherwise would have been litigated in an avoidance proceeding.

Sosne v. Reinert & Duree · filed 2002-06-12(a)

In this timely proceeding under § 362(a), liability was established on the first appeal, and we remanded for a determination of the Trustee’s damages. That determination was to be made in this proceeding, whether or not it involved issues that, absent Defendants’ violation of the automatic stay, would have been litigated in a separate avoidance proceeding.

Section 362(h) treats a creditor’s continued retention of collateral wrongfully repossessed after a bankruptcy filing as a willful stay violation when the creditor knows of the bankruptcy case.

Bolen v. Mercedes Benz, Inc. (In Re Bolen) · filed 2002-06-21(h)

The continued retention of collateral that was admittedly wrongly repossessed postpetition constitutes a willful violation of the automatic stay when the creditor has notice of the pending bankruptcy case.

Section 362(h) requires an individual debtor seeking damages for a willful violation of the automatic stay to show resulting injury.

Bostanian v. American Hilton Corp. · filed 2002-07-01(h)

In order to establish a prima facie case for damages under 11 U.S.C. § 362(h), an individual debtor must show that she was injured by a willful violation of the automatic stay.

Section 362(h) requires a debtor seeking damages for a willful stay violation to prove that the violation caused compensable harm.

In Re Steenstra · filed 2002-07-24(h)

For all of the foregoing reasons, the Debtor’s Sanctions Motion is DENIED. Although the Debtor did demonstrate a single act by Ms. Fennell which violated the automatic stay, the Debtor failed to demonstrate any damages arising therefrom.

Section 362(h) does not permit sanctions for an innocent notice of a missed mortgage payment to a Chapter 13 debtor when the notice causes no actual damages.

In Re Martinez · filed 2002-08-05(h)

Thus, though sending an innocent notice of a missed mortgage payment post-confirmation could constitute a “wilful” violation of the automatic stay within the meaning of the statute, it is a “no harm” violation that cannot, as a matter of law, justify a debtor’s filing a motion for sanctions, because it generates no “actual damages” within the meaning of the statute.

Section 362(h) sanctions require a willful violation of the automatic stay; a promptly removed request for a lien did not meet that requirement.

Paine v. Griffin (In Re Paine) · filed 2002-08-30(h)

As the parties have informed us that the required amendment was made, we do not perceive the “willfulness” that is a prerequisite to § 362(h) sanctions.

Section 362(h) treats a creditor’s deliberate collection acts, undertaken with knowledge of a pending bankruptcy, as willful violations of the automatic stay.

In Re Kortz · filed 2002-09-27(h)

The term “willful,” while not defined in the Bankruptcy Code, has been interpreted to mean simply acting intentionally and deliberately while knowing of a pending bankruptcy.

Section 362(h) does not authorize corporations to recover damages for willful violations of the automatic stay.

Spookyworld, Inc. v. Town of Berlin (In Re Spookyworld, Inc.) · filed 2003-01-23(h)

Based on the foregoing analysis, this Court concludes that § 362(h) does not authorize corporations to seek damages for willful violations of the automatic stay provisions of § 362.

Section 362(h) does not give a bankruptcy trustee a private damages action for an automatic stay violation because a trustee is not an individual.

In Re Thomas James Dyer, Debtor. Nancy Knupfer, Trustee v. John Lindblade, in Re Thomas James Dyer, Debtor, John Lindbla · filed 2003-03-13(h)

So here: Congress chose to exclude the Trustee from the reach of § 362(h). The Trustee therefore has no private right of action for damages resulting from automatic stay violations.

Section 362(h) allows damages for a stay violation only when the violator acted deliberately with knowledge of the bankruptcy filing; specific intent to violate the stay is unnecessary.

Scott v. Wells Fargo Home Mortgage Inc. · filed 2003-01-14(h)

All violations of an automatic stay, however, do not trigger 11 U.S.C. § 362(h)’s remedy provisions, but rather, “willful” violation must be shown. Willful conduct refers to deliberateness of conduct and knowledge of bankruptcy filing, not to specific intent to violate court order.

Section 362(h) authorizes sanctions only when a debtor is injured by a willful violation of the automatic stay.

In Re Peterson · filed 2003-03-21(h)

Thus, the Code prescribes a sanction only in two conjunctive circumstances: (1) injury to the debtor; (2) caused by a “willful” violation of the stay.

Section 362(h) does not support a damages award for a stay violation when the disputed funds are overpayments owed to a superior claimant and the estate suffers no loss.

Hansen v. Lexington Court, LLC (In Re Sage Richmond, LLC) · filed 2003-04-15(h)

Because the funds in dispute were not property of the estate that movant was entitled to distribute to other creditors, the court will not award damages against respondent for violation of the automatic stay. Movant’s only loss here was the right to repay the funds to DMAS. The estate and its creditors will suffer no prejudice as a result of respondent’s actions.

Section 362(h) permits an award of attorney’s fees for a stay violation even when the debtor has suffered no other compensable harm.

In Re Hedetneimi · filed 2003-04-15(h)

The Court holds that it may award attorney’s fees pursuant to § 362(h) even if a debtor has suffered no other compensable harm.

Section 362(h) permits punitive damages for a repeat willful stay violation even when it resulted from administrative oversight and the creditor promptly stopped the garnishment and returned the wages.

In Re Welch · filed 2003-07-01(h)

American General’s violation of the stay appears to be due more to an administrative oversight than to any malice. American General also took quick action to terminate the garnishment and return the garnished wages to the Debtors. Nevertheless, American General did willfully violate the stay, and, as a repeat offender, punitive damages are warranted.

Section 362(a)(6) prohibits attempts to collect a prepetition debt during the automatic stay, and § 362(h) permits sanctions for a willful violation.

In Re Goodfellow · filed 2003-09-03(a)(6), (h)

FURTHER, the Court finds that Debtor has established, by clear and convincing evidence, that Discover Financial Services, Inc. willfully violated the automatic stay, § 362(a)(6), and is therefore subject to sanctions pursuant to § 362(h).

Section 362(h) does not allow corporations to sue for damages for violations of the automatic stay.

Spookyworld, Inc. v. Town of Berlin · filed 2003-09-25(h)

In sum, we agree with the Second, Eighth, Ninth, and Eleventh Circuits, and with the district courts and the BAP in this circuit, and hold that corporations cannot sue under section 362(h) to obtain damages for violation of the automatic stay.

Section 362(h) permits only a natural person, not a corporation, to recover damages for a willful violation of the automatic stay.

In Re Fashions USA Inc. · filed 2003-10-22(h)

While there is a split among the Circuits as to the issue of whether a corporate debtor has a right of action under § 362(h) and the Seventh Circuit Court of Appeals has not ruled on this issue, this ... Court finds that the majority of Bankruptcy Courts in Illinois have held that only a “natural person” can recover damages under § 362(h), and that a corporation is not an “individual” as contemplated under § 362.

Under § 362(h), a creditor that learns of a bankruptcy filing must vacate a judgment entered in violation of the automatic stay, and failure to do so is a willful stay violation.

Keen v. Premium Asset Recovery Corp. (In Re Keen) · filed 2003-11-03(h)

Following that notice, Russell then had an affirmative duty to vacate the Default Final Judgment and thus, undo the violation of the automatic stay. ... Therefore, as a result this Court finds that the Defendants’ failure to vacate the Default Final Judgment constituted a willful violation of the automatic stay.

Section 362(h) creates a cause of action that can be enforced after bankruptcy proceedings have ended.

Brown v. GMAC Mortgage Corp. (In Re Brown) · filed 2003-11-05(h)

The cause of action created under § 362(h) "can be enforced after bankruptcy proceedings have terminated.”

Section 362(h) treats a creditor’s failure to remedy a postpetition repossession as a willful stay violation when the creditor learns of the bankruptcy and receives a request to return the estate property.

Will v. Ford Motor Credit Co. (In Re Will) · filed 2003-11-20(h)

What began as a technical violation of the automatic stay, though, turned into a willful one because a creditor has an affirmative duty to remedy an automatic stay violation without court order when it learns of the existence of a debtor’s bankruptcy case and receives a request to return estate property repossessed post-petition.

Section 362(h) treats a collection agent’s deliberate contacts with a debtor’s employer as a willful stay violation when the creditor’s knowledge of the bankruptcy is imputed to the agent.

In Re Hromidko · filed 2003-11-21(h)

Bank One was given notice of Debtor’s bankruptcy case prior to Weinberg’s contacts with Debtor’s employer. Weinberg was acting as agent for Bank One, as acknowledged in the September 22 letter sent to Dr. Zmoos’ home address. Imputing Bank One’s knowledge of the bankruptcy case to Weinberg, its contacts with Debtor’s employer were willful under § 362(h).

Section 362(h) permits damages for an automatic stay violation only if the debtor proves a willful violation by clear and convincing evidence.

Georgetown Steel Co. v. Capital City Insurance (In Re Georgetown Steel Co.) · filed 2004-04-28(h)

Debtor bears the burden of proof on this issue and must prove the stay violation by clear and convincing evidence. ... Pursuant to 11 U.S.C. § 362(h), a debtor will not receive damages for a violation of the automatic stay unless such violation was “willful”, and if damages are warranted, the court will award punitive damages only in “appropriate circumstances.” ... Debtor did not meet its burden of proving a willful violation of stay, thus damages will not be awarded.

A creditor with notice of the bankruptcy willfully violates the automatic stay by failing to vacate a judgment judicially signed after filing and is liable for actual damages and attorney’s fees.

In Re Braught · filed 2004-03-25(a)(1), (h)

The Court holds that the judgment signed by Judge LaBuda after the filing of the petition was a violation of the automatic stay and therefore a nullity. Furthermore, Sullivan County failed to take affirmative action to vacate the judgment signed by the State Court judge in violation of the stay. Therefore, Sullivan County’s actions amounted to a willful violation of the automatic stay, and Sullivan County is liable for any actual damages as well as Debtors’ attorney’s fees.

Section 362(h) permits reasonable attorney fees for a willful stay violation where a creditor’s vexatious litigation strategy is designed to make the debtor’s victory financially hollow.

In Re Howard · filed 2004-04-06(h)

Section 362(h) prescribes the sanctions for a willful violation of the automatic stay. The willfulness here is manifested by the vexatious quality of the creditor’s litigation strategy, designed to bring about a zero-sum Pyrrhic victory by the opponent if nothing else. The imposition of sanctions under § 362(h) therefore is merited. The only sanction that the Debtors request is an award of the attorney fees they incurred in bringing this matter. The statute allows that, in a reasonable amount.

A creditor’s stay violation is willful under § 362(h) only if the creditor knows of the debtor’s bankruptcy case.

In Re Askew · filed 2004-07-15(h)

In order for a creditor’s actions to be considered “willful” under § 362(h), the offending creditor must have knowledge of the debt- or’s bankruptcy case.

Section 362(h) permits denial of damages where a creditor promptly returns a repossessed vehicle, the stay violation is merely technical, and the debtor fails to prove injury or willfulness.

In Re Rowell · filed 2004-11-08(h)

In this case there is no evidence that Chase's conduct amounted to "egregious, intentional misconduct." It is undisputed that when Rowell's attorney called Chase to complain about the repossession, Chase acted immediately to rectify its mistake and it returned Rowell's vehicle within several hours after it was repossessed. This undisputed fact that the vehicle was immediately returned also supports the bankruptcy court's determination that the violation was merely technical and that no damages were appropriate. ... Rowell failed to come forward with evidence of either injury or willful violation.

Section 362 requires a creditor who learns of a debtor's bankruptcy to act to quash a prepetition arrest warrant used to collect a judgment, and deliberate refusal willfully violates the automatic stay.

In Re Daniels · filed 2004-10-27(a)(1), (a)(6)

The facts show that Creditor initiated the contempt proceedings in state court not to secure the financial information Debtor was ordered to provide, but to coerce him into paying Creditor’s judgment. Upon learning that Debtor had filed a bankruptcy petition, Creditor should have acted to quash the outstanding warrant. By refusing Debtor’s requests to do what the Bankruptcy Code required, Creditor willfully violated the automatic stay.

A creditor with knowledge of the bankruptcy willfully violates the automatic stay by deliberately collecting a prepetition debt in reliance on a dismissal order that clearly makes dismissal conditional.

Baird v. United States (In Re Baird) · filed 2004-11-24(a)(6), (h)

Following receipt of a conditional order of dismissal, it deliberately mailed tax levy and set-off notices to the debtor regarding the collection of the debtor’s prepetition tax obligation. The IRS was not justified in unilaterally treating the ease as dismissed based on receipt of an order which clearly made dismissal conditional. ... Therefore, the court finds that the IRS willfully violated the stay.

Section 362 requires creditors notified of a stay-violating collection order in a prepetition action to take affirmative steps to stay or vacate it, and failure to remedy the violation exposes them to sanctions for a willful violation.

Johnston v. Parker (In Re Johnston) · filed 2005-02-11(a)(1), (h)

In this case, the Appellees were required to take affirmative action to stay or vacate the state court’s overbroad Minute Entry Order. ... The Appellees had an obligation to remedy the violation and their failure to do so exposes them to sanctions for a willful violation under § 362(h).

Section 362(h) does not entitle debtors to attorneys’ fees where no willful violation of the automatic stay occurred.

Metcalf v. Household International Inc. · filed 2005-03-30(h)

The argument that the Metcalfs are entitled to attorneys’ fees on statutory grounds fails because the district court’s determination that there was neither a willful violation of the automatic stay nor contempt of the discharge injunction is adequately supported in the record.

Section 362(h) does not treat a trustee suing for a corporate debtor’s estate as an individual and permits no damages or attorney’s fees when no willful stay violation is pleaded and no relief for one is sought.

Smith v. Lounsbury (In Re Amberjack Interests, Inc.) · filed 2005-07-08(h)

While'the Plaintiff in this adversary proceeding is the Trustee, who is indeed an individual, the Trustee is suing on behalf of the estate of the Debtor corporation and therefore cannot be considered an individual for purposes of obtaining standing under section 362(h). ... Because no claim for a willful stay violation was pleaded, and because no relief for a willful stay violation was sought, no attorney’s fees— and, for that matter, no damages — may be awarded pursuant to section 362(h).

A stay violation is willful under Section 362(h) when the creditor knows of the stay and intends the acts that violate it, even if the creditor believes those acts are authorized by an order granting partial stay relief.

Heidkamp v. Fifth Third Bank (In Re Heidkamp) · filed 2005-08-26(h)

A violation of the automatic stay is willful when the party: (1) knows of the existence of the automatic stay and (2) intends to commit the acts which violate the stay. ... Here both requirements are clearly met. First, Fifth Third’s awareness of the existence of the stay is demonstrated by its effort to obtain an order for partial relief from the stay. Second, while the communications with the Office of the United States Trustee and the letters to the various successor panel trustees were sent under the belief that Fifth Third was entitled to the fees under the Agreement and this Court’s Stay Order, this belief was nevertheless unfounded.

Section 362(h) requires an award of reasonable attorneys’ fees as actual damages for a willful violation of the automatic stay, including fees incurred defending an appeal.

In Re Omine · filed 2005-08-26(h)

All time expended by debtors’ counsel, including time for defending the appeals taken by the Florida DOR, is compensable as actual damages. Upon a finding that a violation of the automatic stay was willful, as this Court did in its Contempt Order, which was affirmed by the District Court, attorneys’ fees are to be awarded as actual damages.

Former § 362(h) makes actual damages mandatory for a willful stay violation, which requires knowledge of the automatic stay and intentional action by the creditor.

In Re Pawlowicz · filed 2005-12-05(h)

Starting with the issue of “actual damages,” § 362(h) makes such an award mandatory when an entity commits a “willful” violation of the stay. For purposes of § 362(h), a finding of “willful” is appropriate upon it being established that the creditor knew of the automatic stay and that its actions were intentional.

Section 362(h) does not permit damages for a creditor’s commencement of a state court action without knowledge of the debtor’s bankruptcy.

In Re Gustin · filed 2005-12-06(h)

Ms. Woodruff did not willfully violate the stay in bringing the state court action. She didn’t know about the bankruptcy at that time. The debtor failed to notify Ms. Woodruff of the bankruptcy and has provided no evidence that Ms. Woodruff had actual notice of the bankruptcy.

Section 362(h) claims survive dismissal and have no statute of limitations, but equitable considerations, including delay and a debtor's abuse of the bankruptcy process, may justify denying recovery.

Barclay v. Reimer & Lorber Co. LPA · filed 2006-02-01(h)

Furthermore, the debtor is correct that there is no statute of limitations for § 362(h) and that such actions survive dismissal of the bankruptcy case. ... In the instant case, the bankruptcy court plainly concluded that equitable considerations outweighed the debtor’s statutory right to recovery under § 362(h). A review of the record in this case reveals no basis for determining that the court abused its discretion in this matter.

Relief under pre-BAPCPA Section 362(h) requires competent proof of actual damages even when a creditor willfully violates the automatic stay.

In Re Kinsey · filed 2006-01-10(h)

Debtor must prove actual damages to recover under § 362(h). ... Despite knowing of the requirement that actual damages be proven, Debtor’s counsel has presented no competent proof of actual damages, and the Court cannot grant relief under § 362(h).

Section 362(h) permits recovery of travel expenses and attorneys fees for a willful stay violation, but emotional distress damages require proof of significant distress beyond that inherent in bankruptcy.

In Re Dayley · filed 2006-03-09(h)

Creditor willfully violated the automatic stay by sending the three billing statements to Debtors after knowing they had filed for bankruptcy relief. Debtors may recover actual damages in the amount of $58.20 as reimbursement for travel expenses incurred to correct the violation. In addition, Debtors may recover their attorneys fees and costs for prosecuting the Motion. ... Debtors did not satisfy their burden to prove they suffered the sort of significant emotional distress to justify a further award of damages, and no punitive damages will be awarded under these facts.

Under former § 362(h), actual damages, including costs and attorney’s fees, are mandatory for a willful violation of the automatic stay.

In Re Atamian · filed 2006-06-15(h)

Because the award of actual damages, which includes costs and attorney’s fees, is mandatory, the Court awards the Debtor $5,584.48 in actual damages against Quirk.

Under former § 362(h), a debtor seeking damages must prove a violation of the automatic stay, its willfulness, and the existence and extent of resulting damages.

DCFS Trust v. Goldstein (In Re Goldstein) · filed 2006-06-28(h)

The Debtor bears the burden of proving that the automatic stay was violated, that the violation was willful, and that the violation caused damages (and the extent thereof).

A creditor willfully violates the automatic stay by intentionally pursuing collection after adequate bankruptcy notice, even if it mistakenly fails to identify the debtor’s accounts and does not intend to violate the stay.

In Re Gorringe · filed 2006-07-07(h)

Though Creditor contends it did not intend to violate the automatic stay, the law is clear that a creditor need not intend to violate the automatic stay, but only intend the collection action, to run afoul of the § 362(a) stay. ... By attempting to execute against Debtor’s bank account and sending various collection letters to Debtor after receiving notice of the bankruptcy, Creditor willfully violated the automatic stay.

A willful violation of the automatic stay requires notice or actual knowledge of the bankruptcy, which mailing notice to an inadequate address does not establish.

Rodriguez v. Olympic Mortgage Corp. · filed 2006-08-14(h)

The Court concludes that the address used by Diaz was inadequate and that Diaz has failed to show that the defendants had notice or actual knowledge of the case. ... Therefore, there was no violation of the automatic stay when Defendants tried to collect the amounts owed from the insurance companies prior to discharge because Diaz did not notify them of the filing of the petition.

Section 362(h) does not permit recovery of litigation costs and attorney fees when the debtor suffered no injury from the stay violation and the suit was unnecessary to stop or prevent violations or undo their effects.

Hutchings v. Ocwen Federal Bank (In Re Hutchings) · filed 2006-09-07(h)

Based on the evidence, the Court must conclude that Mr. Hutchings did not have to file the lawsuit in order to force Ocwen to stop violating the stay, or to prevent Ocwen from violating the stay again, or to undo the effects of Ocwen’s stay violations, or to recover compensatory damages that he had, as of that point, actually incurred. Consequently, because he was not injured by Ocwen’s stay violation, Mr. Hutchings is not entitled, under section 362(h), to recover any of the costs and expenses, including attorneys fees, which he has incurred in maintaining said action.

Section 362(k)(1) requires a debtor seeking damages for a willful stay violation to prove the violation by a preponderance of the evidence and show actual injury.

In Re Sullivan · filed 2006-11-15(k)(1)

The moving party bears the burden of proof in an action for violation of the automatic stay and must prove the violation by a preponderance of the evidence. ... In addition, even if the communication of the incorrect information had constituted a “willful” violation of the automatic stay, Debtors failed to present any evidence of actual damages or harm.

Section 362(h) provides a damages remedy for willful stay violations independent of contempt proceedings and does not require a separate court order enforcing the stay.

Dean v. Global Financial Credit, LLC (In Re Dean) · filed 2006-12-28(h)

Section 362(h) and the contempt power under Section 105 provide separate basis for liability for a violation of the automatic stay. ... Section 362 provides for the recovery of both actual damages and punitive damages for a willful violation of the automatic stay. Section 362 does not by its terms require the entry of a court order for a debtor to enforce the automatic stay.

Under former section 362(h), a debtor must prove injury resulting from a willful violation of the automatic stay to recover damages.

In Re Perrin · filed 2007-01-23(h)

The key to an award of damages under section 362(h) is not the willful violation of the automatic stay, but the resulting injury. Any person who suffers injury as the result of a willful violation of the automatic stay is entitled to recover actual damages.

Under § 362(h), a creditor that knows of the bankruptcy and intentionally fails to take affirmative action to stop wage garnishment willfully violates the stay without needing a specific intent to violate it.

Lawrence Athletic Club v. Scroggin (In Re Scroggin) · filed 2007-03-16(h)

It is not necessary to show a specific intent. It is uncontroverted that LAC was immediately notified of Debtor’s bankruptcy. Further, LAC’s refusal to take affirmative action to get the garnishment stopped cannot be seen as anything other than intentional conduct.

Former § 362(h) requires proof of actual damages to prevail on a motion for sanctions for violating the automatic stay.

Lawrence v. Looney (In re Lawrence) · filed 2007-04-23(h)

To prevail on their motion, Appellants were required to prove actual damages. Because they failed to do so, the bankruptcy court correctly denied the motion on the merits.

Section 362(h) requires deliberate action with actual knowledge of the stay for damages, and temporary delay in withdrawing a foreclosure action or returning collected funds does not constitute a sanctionable act.

James v. Silver Ridge Condominium Ass'n (In Re James) · filed 2007-05-07(h), (a)(3)

Put another way, the omission of an act is not the statutory equivalent of an act and therefore is not within the penumbra of § 362(h)’s intended purpose. ... At that time, the court directed attorney Cushman’s attention to the fact that Silver Ridge’s actions must have been taken with actual knowledge of the automatic stay in order to support an award for actual damages.

Section 362(k)(1) requires a debtor to prove by a preponderance of the evidence that the creditor knew of the automatic stay and intended the acts violating it, without requiring specific intent to violate the stay.

Johnson v. Smith (In Re Johnson) · filed 2007-08-28(k)(1)

Thus, we hold that in order to demonstrate a violation of § 362(k)(1), the debtor bears the burden of establishing, by a preponderance of the evidence, that the creditor knew of the automatic stay and intended the actions that constituted the violation; no specific intent is required.

Section 362(k) limits recovery of damages for willful violations of the automatic stay to individuals and excludes corporations.

City Line Auto Mall, Inc. v. Citicorp Leasing, Inc. · filed 2007-11-20(k)

In any event, the statutory language of 11 USC § 362 (k) limits such a cause of action to damages incurred by an individual, not a corporation such as the plaintiff (see Matter of Operation Open City, Inc., v New York State Dept. of State, 148 BR 184 [1992], affd 170 BR 818 [1994]).

Under Section 362(k), intentionally filing a collection lawsuit with notice of the automatic stay constitutes a willful violation.

Lofton v. Carolina Finance, LLC (In Re Lofton) · filed 2008-03-27(k)

In this case, the defendant admitted to a violation of the automatic stay and the overwhelming evidence is that the defendant had the intent to file the lawsuit with notice of the automatic stay at that time. Therefore, the defendant’s actions violate the automatic stay and were willful.

Section 362(k)(1) requires a debtor seeking damages for a stay violation to allege an injury caused by the violation.

Alcantara v. Citimortgage, Inc. (In Re Alcantara) · filed 2008-04-09(k)(1)

As discussed above with regard to standing, the Debtors have alleged no injury in their Amended Class Action Complaint, Without such an essential allegation, the complaint fails to state a claim for relief.

Section 362(h) treats the intentional filing of a complaint with knowledge of a pending bankruptcy as a willful stay violation even when naming the debtor resulted from clerical negligence.

Frankel v. Strayer (In Re Frankel) · filed 2008-07-14(h)

A violation of the stay is “willful” when a creditor with knowledge that a bankruptcy petition has been filed commits an intentional act that violates the stay. ... However, whether the Complaint was filed in error or with mal intent is of no moment. ... Therefore, Debtor has satisfied his burden of proving the first two elements of a case for damages under § 362(h).

Section 362(k)(1) makes a creditor liable for a willful stay violation committed by an agent acting within its authority, and notice of the bankruptcy filing to an agent or subagent is imputed to the creditor.

In Re Crawford · filed 2008-06-05(k)(1)

It follows that if Mr. Didonato willfully violated the stay in exercising the authority to bid on HSBC’s behalf, HSBC is liable for damages pursuant to 11 U.S.C. § 362(k)(1). ... Thus, where notice of a bankruptcy filing has been provided to a sub-agent, or in this case to one agent in a convoluted system of agents, subagents and servicers, the principal becomes liable for any violation of the automatic stay committed by those agents or sub-agents.

Avoidance of a mortgage lien perfected postpetition in violation of the automatic stay can provide an adequate remedy without additional damages.

Laboy v. Doral Mortgage Corp. (In Re Vazquez Laboy) · filed 2008-10-09(h)

In the present case, the debtors are requesting $25,000.00 in actual damages, $75,000.00 in punitive damages, costs and attorney’s fees. The debtors through the present adversary proceeding had the opportunity to litigate the validity of Doral’s hen and won. The Court concludes that by avoiding what would otherwise have been a secured lien in favor of Doral in the amount of $25,000.00, the debtors have obtained an adequate remedy in and of itself.

Under § 362(k)(1), intentionally selling estate property with knowledge of the automatic stay is a willful violation even if the creditor mistakenly believes it owns the property.

Spinner v. Cash in a Hurry, LLC (In Re Spinner) · filed 2008-09-29(k)(1)

A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(k) is met if there is knowledge of the stay and the defendant intended the actions which constitute the violation. ... Defendant’s inaccurate legal conclusion has no impact on a finding of a willful stay violation. ... Defendant willfully violated the automatic stay by selling Debtor’s vehicle post-petition.

Section 362 prohibits destroying or disposing of estate property under an order authorizing only its removal, treats intentional violations committed with knowledge of the bankruptcy filing as willful, and excludes a trustee representing the estate from damages under subsection (k)(1).

Sensenich v. Ledyard National Bank (In Re Campbell) · filed 2008-12-24(a)(3), (k)(1)

Accordingly, the Court finds that the Bank had a duty under both §§ 362 and 542 to preserve the Debtor’s personal property, and that the Bank violated the automatic stay in destroying and disposing of the Debtor’s personal property, since the only relief the Sale Orders provided to the Bank vis a vis the Debtor’s personal property was the right to remove it. ... Because the Bank knew about the bankruptcy filing, and performed intentional acts that violated the stay, its violation was willful. ... The Court therefore determines, as a matter of law, that the Trustee is not eligible to sue for damages pursuant to § 362(k)(l), but may seek sanctions under the Court’s contempt powers pursuant to § 105(a).

Under former § 362(h), continuing collection efforts and retaining estate property after actual notice of the bankruptcy constitute a willful violation of the automatic stay.

Weatherford v. Timmark, Carey Holdings Inc. (In Re Weatherford) · filed 2009-04-06(h)

The Court finds that the Defendants’ maintenance or renewal of collection efforts after first learning of the bankruptcy case and the continued retention of property of Weatherford’s estate following receipt of actual notice of Weatherford’s Bankruptcy Case constitutes a willful violation of the automatic stay pursuant to § 362(h). The Court further finds that the state court judgment is void as a consequence of the automatic stay and the Defendants’ failure to vacate or cancel the judgment is a violation of the stay.

Section 362(k) does not allow a debtor to recover damages from a creditor who acted under color of a court order lifting the stay, even when that order is later set aside.

In Re Clark · filed 2009-05-21(k)

This Court grants the Motion to Set Aside, nunc pro tunc, from the day the Ex Parte Order was entered, and specifically rules that the Debtor cannot pursue damages under 11 U.S.C. § 362(k) against Mr. Evins who was acting under color of court order.

Section 362(h) does not provide damages for retaining funds subject to a valid setoff when the retention is not a willful stay violation and causes no compensable harm.

Miller v. United States (In Re Miller) · filed 2009-07-08(h)

The Court concludes that under the circumstances, the defendant did not wilfully violate the automatic stay, and the debtor did not suffer compensable damages as a result of the defendant’s retention of the funds which it was entitled to set off against its claim.

Section 362(k)(1) entitles a debtor to actual damages, including attorneys’ fees and costs, when a creditor intentionally pursues collection with actual knowledge of the automatic stay.

In Re White · filed 2009-08-11(k)(1)

Platinum Protection acted intentionally and with actual knowledge of the automatic stay, and thus, its actions were willful. Therefore, the Debtor is entitled to recover her actual damages suffered, including attorneys’ fees and costs.

Section 362(h) permits damages for a willful stay violation only to a natural person, not a partnership.

Rafter Seven Ranches L.P. v. WNL Investments, L.L.C. (In Re Rafter Seven Ranches L.P.) · filed 2009-09-17(h)

In this case, Debtor is a partnership and not a natural person and is thus not entitled to an award of damages under § 362(h).

Section 362(k)(1) provides no relief for an automatic-stay violation when the claimant proves no resulting damages.

JTS/Simms, LLC v. Simms Building, Inc. (In re JTS/Simms, LLC) · filed 2009-10-14(k)(1)

Proving no damages, Plaintiff is entitled to no relief.

Section 362(h) requires a willful stay violation and resulting injury before a debtor may recover damages.

In Re Vazquez Laboy · filed 2009-10-23(h)

Accordingly, in determining whether to award damages under § 362(h), the bankruptcy court must first consider whether: (1) the actions which violated the automatic stay were willful; and (2) whether the debtor suffered an injury due to those violations.

Section 362(h) requires a finding of both a willful stay violation and injury to the debtor before damages may be awarded.

Vázquez Laboy v. Doral Mortgage Corp. (Vázquez Laboy) · filed 2009-10-23(h)

Accordingly, in determining whether to award damages under § 362(h), the bankruptcy court must first consider whether: (1) the actions which violated the automatic stay were willful; and (2) whether the debtor suffered an injury due to those violations.

Section 362(k) treats a creditor’s voluntary stay violation as willful when the creditor knows of the bankruptcy stay, even if a clerical error caused the violation.

In Re Nixon · filed 2009-10-26(k)

Here, it is undisputed that PGW was on notice of the bankruptcy case and the automatic stay at the time the Debtors made their May 5th Payment. It is also undisputed that PGW voluntarily applied the Debtors’ May 5th Payment of the March 26th Bill for post-petition service and adequate assurance to the Debtors’ Pre-Petition Account, albeit due to human error. This voluntary conduct, with knowledge of the stay, was willful within the meaning of 11 U.S.C. § 362(k).

For a willful stay violation under § 362(h), a loan servicer's knowledge of the bankruptcy case can be imputed to the lender when the servicer acquired it within the scope of its agency.

Kline v. Deutsche Bank National Trust Co. (In Re Kline) · filed 2009-11-25(h)

With certain exceptions not applicable here, knowledge acquired by an agent acting within the scope of its agency is imputed to the principal for purposes of determining whether the principal willfully violated the automatic stay; and under this doctrine, knowledge of a loan servicer can be imputed to the lender.

Section 362(k) does not award damages for an unintentional computer-generated stay violation when the creditor lacked actual knowledge of the bankruptcy filing and the debtor suffered no actual loss.

Miller v. United States · filed 2010-01-12(k)

Although another court may have reached a different decision in this case with respect to the government’s willfulness, ... it was reasonable for the bankruptcy court to conclude that the government did not have actual knowledge of the filing and that its error was not intentional or deliberate. Moreover, Miller did not suffer an actual loss.

An individual states a plausible § 362(k) damages claim by alleging that a creditor knew of the automatic stay and willfully pursued collection after the petition.

Wynne v. Aurora Loan Services, LLC (In Re Wynne) · filed 2010-01-14(k)

The Court has considered the record, and finds that the Debtors alleged sufficient facts to support the allegations in the Complaint, and that the Debtors stated a plausible claim under § 362(a) and § 362(k) of the Bankruptcy Code. Aurora’s Motion to Dismiss Count I should be denied.

Section 362(k) treats a stay violation as willful when the violating act was intentional, even if the actor did not intend to violate the stay.

Bohm v. Howard (In Re Howard) · filed 2010-01-15(k)

To satisfy the willfulness requirement of 11 U.S.C. § 362(k), applicable law provides that a “willful” violation of the stay does not mean a party must intend to violate the automatic stay. Rather, all that applicable law requires is that the act which violates the stay must be intentional.

A creditor who files a state court action without notice of the bankruptcy willfully violates the automatic stay if, after learning of the case, the creditor unjustifiably delays dismissing the action; justification depends on the totality of the circumstances.

Kline v. Tiedemann (In Re Kline) · filed 2010-02-08(h)

This Court agrees that commencement of a post-petition action against a debtor in state court in technical violation of the stay becomes a willful stay violation if the creditor unjustifiably delays dismissal of the litigation. Whether a delay in dismissal of the litigation is unjustifiable requires consideration of the totality of the circumstances.

Section 362(k) permits liability for a willful stay violation when a creditor receives notice of a joint bankruptcy but fails to record one debtor’s filing before intentionally collecting from that debtor.

Govero v. Axelrod (In Re Govero) · filed 2010-02-24(k)

Creditors cannot avoid liability for a willful violation of the stay because they failed to properly keep records of bankruptcy notices.

A creditor’s reliance on its computer records does not excuse a willful automatic stay violation when it continues collection after notice of the bankruptcy.

In Re Anderson · filed 2010-04-13(k)(1)

Reliance upon a computer system and its data does not justify, nor excuse, actions taken in violation of the stay. ... Based upon the evidence, GEMB engaged in a willful violation of the automatic stay.

Section 362(h) allows damages for a willful automatic-stay violation only to a natural person, not a corporation or a trustee acting for a corporate debtor’s estate.

Paloian v. GRUPO SERLA SA DE CV · filed 2010-06-17(h)

This court finds persuasive the reasoning of the cited cases holding that a corporation, or a trustee for a corporate debtor's estate, cannot recover damages pursuant to § 362(h) for willful violation of the automatic stay.

Section 362(k)(1) requires a debtor to allege a cognizable injury caused by a stay violation to recover sanctions or damages.

Tarone v. Tarone (In Re Tarone) · filed 2010-07-26(k)(1)

Nonetheless, the Debtor’s claim for sanctions and damages must be denied because he has not alleged, nor established, that he suffered damages as a result of Mr. Ray’s attempt to obtain possession of the painting.

Liability for a willful violation of the automatic stay may turn on whether a creditor was genuinely uncertain who was entitled to possession of repossessed property after the bankruptcy filing.

Boyd v. Direct Capital Corp. (In Re Pizzano) · filed 2010-10-22

Drawing inferences in Direct Capital’s favor, there is a genuine issue of material fact about whether the Defendant willfully violated the automatic stay. The creditor’s uncertainty about which of the Plaintiffs was entitled to post-petition possession, if established at trial, might preclude a finding of willfulness.

Section 362(k) requires a debtor seeking damages for a stay violation to show actual injury.

Wcislak v. Northern Ohio Investment Co. (In Re Wcislak) · filed 2011-02-09(k)

First, in order to sustain an award of damages under § 362(k), a debtor must show that they suffered an actual injury.

Section 362(k)(1) permits denial of actual damages for a willful stay violation when no monetary loss or attorneys’ fees are proved and the impact is minimal; punitive damages require additional circumstances.

Malicki v. Bernstein (In Re Bernstein) · filed 2011-04-18(k)(1)

Accordingly, the court awards no actual damages. Further, the court finds insufficient additional circumstances to warrant an award of punitive damages in the absence of an award of actual damages.

Former § 362(h) requires actual damages, including costs and attorneys’ fees, for an injured individual after a willful stay violation and gives the individual an opportunity to prove injury and damages.

Vázquez Laboy v. Doral Mortgage Corp. · filed 2011-05-27(h)

There can be no question that, as a general matter, the statute mandates actual damages. And it would be impossible for a court to set the amount of actual damages, costs, and attorneys' fees without taking evidence. Thus, the bankruptcy court frustrated both the statute's language and its mandated result by denying the Debtors a chance to prove damages.

Section 362(k) requires injury caused by a willful stay violation before the creditor is liable for damages.

Gordon v. Hill (In Re Wilson) · filed 2011-07-12(k)

However, the Court finds that Ocwen’s conduct did not cause an injury which would make Ocwen liable pursuant to § 362(k) or 105(a).

A creditor willfully violates the automatic stay under § 362(a)(3) and (a)(6) by intentionally disabling estate property before returning it to the debtor after a bankruptcy filing.

In Re Mabone · filed 2012-05-25(a)(3), (a)(6)

This was a deliberate, willful violation of the automatic stay by UCC.

Section 362(k) does not provide damages for a creditor’s actions taken after it obtains relief from the automatic stay.

Kline v. Deutsche Bank National Trust Co. (In re Kline) · filed 2012-06-01(k)

She cannot now recover damages under § 362(k) for actions which Defendants had relief from stay to accomplish.

A government computer glitch causing only a technical violation of the automatic stay does not establish a willful violation under § 362(k).

Riley v. U.S. Department of Agriculture Rural Development (In re Riley) · filed 2012-06-07(k)

The Court cannot conclude that the Defendant willfully violated the automatic stay. ... Relying on Miller, this Court sees the glitch in the government’s computer program as resulting in only a technical violation of the stay.

Section 362(k) requires actual damages for an individual injured by a willful stay violation and permits punitive damages in appropriate circumstances.

In re Velichko · filed 2012-06-12(k)

Section 362(k) mandates an. award of actual damages to an individual where the violation is willful, and the Court has discretion to assess punitive damages.

Section 362(k)(1) requires a debtor seeking damages for a willful stay violation to request a specific amount and support that amount with evidence.

In re: Joseph Baer v. · filed 2012-06-22(k)(1)

As the party seeking recovery under § 362(k), Debtor had the burden of requesting damages in a certain amount and of supporting that claim with evidence. Debtor failed to satisfy either prong of that burden.

Section 362(k) does not allow a trustee acting for a bankruptcy estate to recover damages for a stay violation because the estate is an artificial entity rather than an individual.

Rushton v. Bank of Utah (In re C.W. Mining Co.) · filed 2012-09-05(k)

Based on the well-established precedent of this Court and other circuits, and the plain language of § 362(k), the Court concludes that a trustee acting on behalf of the estate, which is an artificial entity, cannot recover damages under § 362(k) for a violation of the automatic stay.

Section 362(k) permits a narrow equitable exception to damages when the debtor’s own conduct bears significant responsibility for creating the stay violation.

In re Baetz · filed 2013-02-21(k)

This equitable exception should be limited to those situations in which the debtor’s own conduct bears a significant portion of the responsibility for creating the stay violation.

Section 362(k)(1) does not excuse a creditor’s willful stay violation because the creditor relied in good faith on erroneous legal advice that no stay arose.

Stancil v. Bradley Investments, LLC (In re Stancil) · filed 2013-02-25(k)(1)

The Friedmans’ reliance on advice of counsel that no stay arose because Gary Stancil and his mother were not eligible to file a joint petition might bear on good faith (the issue of whether they specifically intended to violate the automatic stay), but good faith is not a defense under § 362(k).

Section 362(k)(1) allows emotional-distress damages and reasonable attorney’s fees and costs for a willful violation of the automatic stay.

Thomason v. Chestatee Community Ass'n (In re Thomason) · filed 2013-03-05(k)(1)

In any event, based upon the foregoing legal standard and a review of the record and trial testimony presented, the Court finds that an award of nominal damages in the amount of $1,250.00 is appropriate in the circumstances to compensate Debtor for her emotional stress and anxiety in addition to any medically-related costs resulting from same. In addition, based on the record, attorney’s fees and costs as reasonably expended in connection with addressing the events that constituted a violation of the automatic stay are awarded in the amount of $1,750.00.

Section 362(k) allows an individual debtor to seek actual damages for a willful stay violation, and a claim may proceed when those damages are plausibly pleaded.

California Coast University v. Aleckna (In re Aleckna) · filed 2013-07-01(k)

When a creditor willfully violates the automatic stay, § 362(k) allows an individual debtor to recover actual damages, including costs and attorney’s fees, and, in appropriate circumstances, punitive damages. ... At this stage of the proceeding, viewing the factual allegations in the light most favorable to Aleckna I find that a plausible claim for actual damages has been pleaded and that the counterclaim should proceed.

Section 362(k)(1) does not allow actual damages or attorney’s fees for a stay violation that was not willful.

Alley Cassetty Companies, Inc. v. Wren · filed 2013-07-22(k)(1)

Accordingly, appellant’s violation of the stay was not willful pursuant to 11 U.S.C. § 362(k)(l), and appellees are not entitled to actual damages. Consequently, the bankruptcy court’s award of actual damages in the form of reasonable attorney’s fees must be vacated.

Section 362(k) requires a debtor seeking damages for a willful stay violation to show that the creditor knew of the automatic stay when it deliberately took the action that violated it.

Thomas v. City of Philadelphia (In re Thomas) · filed 2013-08-15(k)

However, to prove a willful violation of the automatic stay, a plaintiff also must show that the creditor had knowledge that the automatic stay was in place.

Section 362(k) allows damages for a stay violation only if the violation was willful; filing a collection suit without knowledge of the stay does not qualify.

Greer v. Healthcare Financial Services, LLC (In re Greer) · filed 2013-08-19(k)

Consequently, the Court finds that there is no material fact in dispute that HFS did not willfully violate the automatic stay and that as a matter of law Whitney is not entitled to damages against HFS for violation of the automatic stay.

Section 362(k) allows an individual injured by a willful violation of the automatic stay to recover damages, but a corporation cannot invoke that remedy.

In re Old Carco LLC · filed 2013-11-08(k)

Section 362(k) allows an individual injured by a willful violation of the automatic stay to recover damages from the violator. Here, the automatic stay terminated over three years ago, a corporation such as TRW cannot rely on 11 U.S.C. § 362(k), ... and TRW is not seeking damages.

Section 362(k) requires a creditor to know that property belongs to the debtor before its attempt to repossess that property can be a willful stay violation.

Carter v. First National Bank (In re Carter) · filed 2013-12-05(k)

At issue here is not whether the Bank had knowledge of Carter’s personal bankruptcy filing; but rather, whether it knew that its collateral had been transferred from the LLC to Carter, personally, which it did not. Absent a showing that the Bank was aware of the Assignment, a willful stay violation cannot be found.

A claim for damages under § 362(k) requires the debtor to identify and quantify damages arising from an alleged violation of the automatic stay.

Behrens v. United States · filed 2014-02-12(k)

Finally, Behrens did not specifically identify or quantify under 11 U.S.C. § 362(k) any damages arising from the government's alleged violation of the automatic stay for the bankruptcy court to consider.

Section 362(k)(1) provides a damages remedy for a violation of the automatic stay regardless of whether the debtor has equity in the home.

Galope v. Deutsche Bank National Trust · filed 2014-03-27(k)(1)

Further, regardless of whether Galope ... has equity in the home, 11 U.S.C. § 362(k)(1) provides a statutory basis for damages.

Section 362(k)(1) permits recovery of lost rent, retained fees, travel expenses, emotional damages, and punitive damages for a willful violation of the automatic stay.

Rivera v. Lake Berkley Resort Master Ass'n (In re Rivera) · filed 2014-05-29(k)(1)

The court awards the Plaintiff actual damages in the amount of $23,750.00 for lost rent, $2,000.00 for maintenance fees retained, $2,500.00 for travel expenses to Florida, $100,000.00 for emotional damages and $100,000.00 in punitive damages.

A creditor’s good-faith but mistaken belief in a right to possess estate property does not prevent a finding that the creditor willfully violated the automatic stay.

Okke v. Okke (In re Okke) · filed 2014-07-17(k)(1)

Even if Ms. Okke believed in good faith that she enjoyed the right to possess the tools, the fish tank, and the fish, her mistaken belief does not preclude the court’s finding of willfulness.

Section 362(k) does not provide statutory damages for conduct that violates the discharge injunction after the automatic stay has dissolved.

In re Szenes · filed 2014-08-06(k)

While the debtors also seek the imposition of punitive sanctions pursuant to section 362(k) of the Bankruptcy Code, which imposes statutory damages for violation of the automatic stay, the Court notes that relief under section 362(k) is not appropriate in this ease because the automatic stay has dissolved and has been replaced by the discharge injunction. A violation of a discharge injunction does not give rise to the statutory damages set forth in section 362(k) and is instead addressed by the courts through the use of their “inherent civil contempt power under section 105.”

For § 362(k), notice of a bankruptcy given to a creditor’s repossession agents before repossession is imputed to the creditor and satisfies the knowledge element of a willful stay violation.

In re Adams · filed 2014-08-21(k)

As a result of the agency relationship, the information regarding the Debtors’ pending Bankruptcy Case that was communicated to the Repo Men prior to the repossession was imputed to Taplin.

Section 362(k) does not impose liability for an inadvertent act taken without knowledge that the automatic stay is in effect.

Morris v. Wells Fargo, N.A. (In re Morris) · filed 2014-07-29(k)

Instead, those actions were merely inadvertent and cannot provide the basis for the imposition of liability pursuant to 11 U.S.C. § 362(k).

Section 362(k)(1) permits a bankruptcy estate injured by a willful violation of the automatic stay to recover its attorney fees.

Redmond v. Hassan · filed 2014-09-23(k)(1)

The bankruptcy estate was injured by the willful violation of the stay, so the estate is entitled to recover its attorney fees.

Section 362(k) allows a damages claim based on emotional distress when a creditor allegedly acts after receiving actual notice of bankruptcy.

Walsh v. UGI Utilities, Inc. (In re Walsh) · filed 2014-10-03(k)

Because paragraph 8 and 9 of the Complaint alleges that UGI received notice of the bankruptcy, and no answer as of yet has been filed, I must presume for the purposes of Rule 12 that UGI had actual notice and, notwithstanding that notice, sent a shut-off note to the Debtor causing emotional distress. That sequence of events supports a claim under § 362(k).

Section 362 permits recovery for a stay violation only if it was willful; a creditor that lacked notice of the bankruptcy before the stay ended did not willfully violate it.

Perry v. City of Birmingham (In re Perry) · filed 2014-10-30(k)(1)

The Court finds that if the City violated the automatic stay, it did not do so willfully; thus, Dr. Perry is not entitled to any recovery for any stay violation that may have been committed.

Section 362(k)(1) requires a deliberate act taken with knowledge of the bankruptcy filing for a stay violation to be willful and support sanctions.

James Carter, Jr. v. First National Bank, etc. · filed 2014-11-17(k)(1)

To be willful, a creditor must take action that is deliberate and with the knowledge that a bankruptcy petition has been filed.

Section 362(k)(1) permits actual damages, costs, and attorneys’ fees when a creditor with actual notice of the automatic stay willfully seeks to execute a prepetition judgment.

Roman-Perez v. Operating Partners Co. (In re Roman-Perez) · filed 2015-04-06(k)(1)

The court further finds that the violation was willful because “[i]n cases where the creditor received actual notice of the automatic stay, courts must presume that the violation was deliberate.” ... Therefore, the Plaintiffs are entitled to actual damages, including costs and attorneys’ fees, under 11 U.S.C. § 362(k)(l).

Section 362(k)(1) does not require proof of damages to establish a stay violation, but damages must be proven before they can be awarded.

United States Department of Agriculture v. Sexton · filed 2015-03-31(k)(1)

Section 362(k)(1) does not require proof of damages to find a violation of the stay; damages must be proven in order to be awarded.

A debtor must prove a willful violation of the automatic stay by a preponderance of the evidence.

Warren v. Dill (In re Warren) · filed 2015-06-29(k)(1)

... the Court finds it appropriate to join the majority by adopting the preponderance of the evidence standard.

Section 362(a)(3) permits a chapter 7 debtor to seek damages for interference with estate property only when the debtor has a right to possess or control that property.

Perry v. Chase Auto Finance (In re Perry) · filed 2015-11-13(a)(3)

It is the right to possess or control that gives the right to assert damages under § 362(a)(3).

A creditor with knowledge of a bankruptcy willfully violates the automatic stay if it fails to take necessary steps to stop a collection process it set in motion, including a continuing garnishment.

In re Highsmith · filed 2015-12-31(k)(1)

On the contrary, a creditor violates the stay willfully when it has knowledge of the bankruptcy and it fails to take possible and necessary action to prevent the continuation of the collection process; in such an instance, inaction amounts to reckless disregard and a violation of the automatic stay.

A garnishment that reaches a bankruptcy debtor’s pay violates the automatic stay, and the violation becomes willful when the creditor learns of the bankruptcy but fails to stop the garnishment.

Vaughn v. Central Mississippi Credit Corp. (In re Vaughn) · filed 2015-12-02(k)(1)

CMCC violated the automatic stay when it garnished Plaintiff, and that violation became willful when Plaintiff notified CMCC of her bankruptcy. CMCC failed to take adequate steps to rectify its violation for almost five months after it learned of the bankruptcy, causing injury to Plaintiff.

Section 362 does not give nondebtor, noncreditor third parties standing to challenge violations of the automatic stay and recover damages.

Nadler v. John Knox Village (In re Triad Construction Co.) · filed 2016-01-26(k)

This Court agrees that the purpose of § 362 is to protect debtors and creditors and agrees with the reasoning that the non-debtor, non-creditor third party Plaintiffs in this case do not have standing under § 362 to challenge violations of the automatic stay and recover damages.

Section 362(k)(1) treats intentional state court filings by a creditor who knows of the debtor’s bankruptcy as willful violations of the automatic stay.

Mitchell v. Anderson (In re Mitchell) · filed 2016-01-28(k)(1)

Therefore, these filings were actions taken in violation of the automatic stay. Additionally, Anderson acted willfully because he knew of the debtor’s bankruptcy and intentionally filed these documents in state court.

Section 362(k)(1) requires a debtor to prove damages from a willful stay violation by a preponderance of the evidence.

Morgan v. Bank of the West (In re Morgan) · filed 2016-03-25(k)(1)

The Court finds that evidence of damages was not proven by a preponderance of the evidence, and no such damages will be awarded.

Section 362(k)(1) does not allow an estate to recover stay-violation damages when the estate was not injured and the loss fell on a creditor.

Gebhardt v. McKeever (In re McKeever) · filed 2016-05-23(k)(1)

But even if the Court were to agree that the Trustee was an individual who could pursue a stay violation, the Court finds the estate is not the party injured by the Debtor’s stay violation.

Section 362(k)(1) treats a creditor’s collection act after notice of a bankruptcy case as a willful stay violation even when a clerical error caused the act.

In re Silk · filed 2016-04-08(k)(1)

HESAA’s assertion that it did not intend to violate the automatic stay when it made a clerical error, and that collection demands were automatically generated due to that error, does not immunize it from liability for a stay violation because a willful violation does not require specific intent to violate the stay.

Section 362(k)(1) permits damages for a continuing willful stay violation when a creditor obtains prospective stay relief but neither annuls the stay nor remedies earlier acts that violated it.

In re: Darryl Chadwich Carter · filed 2016-04-22(k)(1)

However, the court’s damages assessment did not account for the fact that Barber’s willful stay violation (and hence his potential exposure for damages under § 362(k)(1)) did not end when the court granted Barber relief from the stay. At that time, Barber had neither obtained an annulment of the stay nor otherwise remedied his stay violation.

Section 362(k)(1) treats a creditor’s failure to stop an erroneous garnishment after notice of the automatic stay as a willful violation for which the injured debtor may recover damages.

Central Mississippi Credit Corp. v. Vaughn · filed 2016-08-04(k)(1)

Only upon receipt of the complaint in the adversary proceeding did CMCC finally take action to correct its serious mistake. Such inaction satisfies the willful violation test, and the bankruptcy court’s holding is affirmed.

Section 362(k)(1) allows actual damages for emotional distress caused by a willful stay violation, but later injuries unrelated to that violation are not recoverable.

In re Kim · filed 2016-08-11(k)(1)

The allegations of stolen property and physical injury relate to events that took place on November 3, 2014, which was more than a week after the order granting relief from the automatic stay became effective. These alleged injuries are not proximately related to the Creditor’s stay violation. ... However, the Debtor testified credibly that she suffered emotional distress upon receiving the eviction notice and that she believed that the Creditor was acting without the sanction of this Court when she received the notice prior to the entry of the Court’s written order. ... The Court finds that the Debtor suffered actual damages in the amount of $990.

Section 362(k) allows an injured individual debtor to recover attorney’s fees when a creditor willfully violates the automatic stay; it does not authorize fees for a creditor pursuing discharge objections.

Scranton Laminated Labels, Inc. v. Florimonte (In re Florimonte) · filed 2016-10-21(k)

When a creditor willfully violates the automatic stay an injured individual debtor can recover attorney’s fees. ... Neither of these statutory exceptions to the American Rule apply to the case at bar.

Section 362(k) allows a debtor to pursue relief when its complaint plausibly alleges that a creditor took its liquor license and levied its bank accounts after the automatic stay began.

Vaca Brava Old San Juan, LLC v. Puerto Rico Treasury Department (In re Vaca Brava Old San Juan, LLC) · filed 2016-10-27(k)

In this case, Plaintiff claims Defendant violated § 362 when its agents collected Plaintiffs liquor license and when they íevied two Banco Popular accounts five days after the stay was imposed (Docket No. 36, at 2). ... Taking the aforementioned allegations as true, as Rule 12(b)(6) dictates, Defendant has asserted a cause of action for violation of the automatic stay, and thus Plaintiff may be entitled to relief under § 362(k).

Section 362(k)(1) requires a debtor seeking damages for a willful stay violation to prove both a willful violation and resulting injury.

Heckman v. Reading Area Water Authority (In re Heckman) · filed 2016-12-06(k)(1)

Section 362(k)(l) is straightforward and mandates the imposition of damages against a creditor if the debtor can establish that (1) the creditor willfully violated the automatic stay and (2) the violation of the stay caused the debtor some injury.

Section 362(k) requires damages against a creditor that willfully violates the automatic stay as to an individual debtor.

In re Lara · filed 2017-03-27(k)

Section 362(k) of the Bankruptcy Code provides that a willful stay violation concerning an individual debtor mandates an assessment of damages against the violator.

Section 362(k)(1) permits actual damages for a willful stay violation to continue accruing after the stay expires until full restitution is made, including continuing consequences proximately caused by the violation.

Sundquist v. Bank of America, N.A. (In re Sundquist) · filed 2017-03-23(k)(1)

The stay violations being undeniable, the key questions of law are whether, and for how long, “actual damages” under § 362(k)(1) continue to accrue after the automatic stay expires? The answer has two facets. First, damages continue to accrue until full restitution is made. Second, applicable tort concepts teach that damages encompass all consequences proximately caused by the stay-offending conduct for so long as those consequences continue, regardless of whether the stay has expired.

A willful stay violation under § 362(k)(1) requires intent to take the act that violates the stay, but does not require intent to violate the stay.

Prithvi Catalytic, Inc. v. Microsoft Corp. (In re Prithvi Catalytic, Inc.) · filed 2017-04-25(k)(1)

Willfulness does not require that the creditor intend to violate the stay, but only that the creditor intend to take the action that is then determined to be in violation of the stay.

Section 362(k)(1) makes an attorney who knows of a bankruptcy case and intentionally files a contempt motion against the debtor during the automatic stay liable for actual damages caused by the violation.

Beckford v. Romano (In re Beckford) · filed 2017-06-23(k)(1)

The record supports a finding that. Attorney Romano acted “willfully” because of his admitted knowledge of the bankruptcy case and his intentional act of filing the 2013 Motion for Contempt. Hence, Attorney Romano is liable, pursuant to § 362(k)(l), for actual damages caused by his violation of the automatic stay.

Section 362(k) provides damages for violations of the automatic stay, but does not cover violations of the separate co-debtor stay.

In re Whitlock-Young · filed 2017-08-10(k)

Section 362(k) is, however, expressly limited to the automatic stay.