Gaston, et al v. New Century Finance, et al

United States Court of Appeals
Fifth Circuit
F I L E D
December 23, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 03-40608
Summary Calendar
_______________
IN THE MATTER OF:
BOB GASTON, JR., AND NELDA GASTON,
Debtors.
BOB GASTON, JR., AND NELDA GASTON,
Appellants,
VERSUS
NEW CENTURY FINANCE, L.L.C.; BRUCE HOULE;
AND BANCORP GROUP, INC.,
Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m M-01-CV-21
_________________________

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Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
PER CURIAM:*
Bob and Nelda Gaston appeal an adverse
ruling on their numerous claims against New
Century Finance, L.L.C. (“New Century”),
Bruce Houle, and Bancorp Group, Inc. (“Ban-
corp”) arising from Bob Gaston’s lease of a
laptop computer shortly before his bankruptcy,
and attempts by New Century and Bancorp to
collect the lease payments owed them and to
recover the computer after Gaston’s default.
In an adversary proceeding before the bank-
ruptcy court, the Gastons sued for (1) viola-
tions of the automatic stay required by the
Bankruptcy Code; (2) common law unfair
collection practices; (3) violation of the Texas
Deceptive Trade Practices Act (“DPTA”);
(4) malicious prosecution; (5) abuse of pro-
cess; (6) usury; and (7) libel.
Our review is of the district court’s affirm-
ance of the bankruptcy court, so we apply the
same standards of review as did the district
court. The bankruptcy court’s findings of fact
are reviewed for clear error and its conclusion
of law de novo. In re Coho Resources, Inc.,
345 F.3d 338 (5th Cir. 2003).
I.
The district court properly held that truth is
an absolute defense to a libel claim. It was al-
so correct in determining that the bankruptcy
court’s finding was not clearly erroneous.
II.
The district court saw no error in the bank-
ruptcy court’s findings with regard to the
terms of the lease and that there was no viola-
tion of the DTPA. On this appeal, the Gastons
do nothing more than restate their allegation
that New Century violated the act. We see no
error in the district court’s holding in this
regard.
III.
The district court correctly decided that
there was no clear error in the bankruptcy
court’s finding that there was neither a show-
ing of outrageous conduct on the part of the
defendants nor a showing that their conduct
caused physical harm. Both are required to
state a cause of action for unfair debt col-
lection practices.
IV.
To state a claim for malicious prosecution,
the plaintiff must show: “(1) the commence-
ment of a criminal prosecution against the
plaintiff; (2) causation (initiation or procure-
ment) of the action by the defendant; (3) ter-
mination of the prosecution in the plaintiff's fa-
vor; (4) the plaintiff's innocence; (5) the ab-
sence of probable cause for the proceedings;
(6) malice in filing the charge; and (7) damage
to the plaintiff.” Richey v. Brookshire Gro-
cery Co., 952 S.W.2d 515 (Tex. 1997). The
district court found no error in the bankruptcy
court’s ruling that the defendants were entitled
to summary judgment. There is nothing in the
record to indicate that this was error or that
New Century did not have probable cause and
act reasonably.
V.
As the district court found, an abuse of pro-
cess claim must show an improper use of pro-
cess after its issuance, not merely its procure-
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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ment. Snyder v. Byrne, 770 S.W.2d 65 (Tex.
App.SSCorpus Christi 1989, no writ). There
is no evidence to challenge the bankruptcy
court’s finding that no actionable conduct oc-
curred after process was issued. Therefore,
summary judgment was proper.
VI.
The district court was correct in stating that
a claim of usury is inapplicable in a lease trans-
action. Maloney v. Andrews, 483 S.W.2d 703
(Tex. Civ. App.SS1972, writ ref’d n.r.e.). The
bankruptcy court found that the lease in ques-
tion was a true lease and therefore does not
provide t he basis for a usury claim. This
finding is not erroneous.
VII.
After a trial, the bankruptcy court made de-
tailed findings of fact and conclusions of law.
The district court was correct in stating that
there is no indication of clear error in the
bankruptcy court’s findings that (1) Bancorp
committed no willful or knowing violations of
the automatic stay, because it lacked knowl-
edge of the bankruptcy, and that even if it did
have knowledge, the Gastons failed to prove
that they suffered actual damages as a result;
and (2) New Century committed one knowing
violation of the automatic stay, for which the
Gastons were damaged in the amount of
$621.01.
VIII.
The Gastons seek $140,000 in attorney’s
fees and $16,000 for costs. After trial, the
bankruptcy court found that reasonable fees
were $3,000. It also stated that Bob Gaston’s
hands were not clean, that his counsel’s
“[s]corched earth tactics are inappropriate,”
and that § 362 is not a blank check for plain-
tiffs and their counsel to run up fees. There is
no indication that any part of this finding is
clearly erroneous.
IX.
The bankruptcy court concluded that Bob
Gaston had converted the laptop that was
owned by New Century. It also decided that
the value of the laptop at the time of conver-
sion was $1,400 and awarded that amount as
damages to New Century. There is nothing to
indicate that the bankruptcy court’s findings of
fact were clearly erroneous or that its con-
clusions of law were incorrect.
AFFIRMED.

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