Mara Yvette Burns

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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Decision
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	Case No. 09-41767 J
Chapter 13
MARA BURNS, Date: 11/04/10
Debtor./ 	Time: 3:30 p.m.
Ctrm: 215
DECISION
Debtor Mara Burns (“Burns”) requests an award of damages
against Attorney Scarlet Gordon (“Gordon”) as compensation for
certain acts Gordon undertook in violation of the automatic stay
provided by Bankruptcy Code § 362(a)(1). 	The court will award Burns
damages in the sum of $2,695 pursuant to Bankruptcy Code
§ 362(k)(1).
On March 6, 2009, Burns filed a voluntary petition herein under
chapter 13 of the Bankruptcy Code. 	Gordon was on notice of the
case, and filed certain papers herein on December 16, 2009 on behalf
of her client Kimberly Hervey, a Conservatee.
On February 24, 2010, Gordon filed a document entitled Petition
for Order Against Mara Burns and American Contractors Indemnity Co.
Signed: November 23, 2010

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
November 24, 2010
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 09-41767 Doc# 67 Filed: 11/23/10 Entered: 11/24/10 12:25:36 Page 1 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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2	Decision
Bonding Agency for Return of Property with the Alameda County
Superior Court, State of California, Case. No. P-256854, entitled
Estate of Maxine Lee Norman. 	On May 14, 2010, Gordon amended the
petition (which amended petition is hereafter referred to as the
“Petition”). 	By the Petition, Gordon sought on Hervey’s behalf a
determination that Burns owed her a certain sum of money, and an
interest in a certain parcel of real property. 	The alleged grounds
were based on facts that occurred in 2006.
The foregoing facts establish Burns’s prima facie case for
relief. 	The filing of the Petition violated the automatic stay
provided by Bankruptcy Code § 362(a)(1). 	The violation was willful,
in that a willful violation does not require a specific intent to
violate the stay. 	In re Bloom, 875 F.2d 224, 227 (9th Cir. 1989),
In re Pinkstaff, 974 F.2d 113, 115 (9th Cir. 1992). 	Moreover, a
party with knowledge of the bankruptcy case, as Gordon, is charged
with knowledge of the automatic stay. 	Pinkstaff, 974 F.2d at 115.
Initially, Gordon argued in opposition to the motion that,
because Burns’s allegedly wrongful acts were undertaken in the
course of a probate proceeding, this court did not have any
jurisdiction to hear Burns’s motion. 	This argument fails. 	Although
there is a “probate exception” to federal court jurisdiction, it is
an extremely narrow one, limited to
probate or annulment of a will and the administration of a
decedent's estate; it also precludes federal courts from
disposing of property that is in the custody of a state
probate court. 	But it does not bar federal courts from
adjudicating matters outside those confines and otherwise
within federal jurisdiction.
Case: 09-41767 Doc# 67 Filed: 11/23/10 Entered: 11/24/10 12:25:36 Page 2 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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1The need for Burns to incur additional attorneys’ fees for
preparation of another brief to respond to Gordon’s new argument
increased the amount of Burns’s damage claim herein.
3	Decision
Marshall v. Marshall, 547 U.S. 293, 296, 126 S.Ct. 1735, 1739
(2006). 	(Internal citations omitted.) 	The court holds that it has
jurisdiction to hear Burns’s motion.
At oral argument, Gordon shifted gears and raised a new
argument that the actions she took were not against Burns in Burns’s
personal capacity, but solely in her capacity as Administrator of
the estate of Maxine Norman. 	The court provided Burns with an
opportunity to respond to this new defense, and for Gordon to reply.
Burns responded; Gordon did not reply. 1
The matter now stands submitted, and the court rejects Gordon’s
argument that the actions she took against Burns in the Superior
Court after the filing of Burns’s chapter 13 petition were only
against Burns as an Administrator. 	In the first place, the Petition
distinguishes between Burns, on the one hand (who Gordon designated
in the Petition as “Respondent”), and the estate of Maxine Lee
Norman, on the other (which Gordon designated in the Petition as
“‘decedent’ or ‘decedent’s estate’”).
The Petition requests sanctions against “Respondent,” which by
Gordon’s definition is not a request for sanctions against the
decedent’s estate. 	Also, the Petition alleges that Respondent
wrongfully diverted funds to purchase real property, an automobile,
and “to pay her creditors.” 	Again, it is clear that the creditors
Gordon alleges Burns wrongfully paid were Burns’s personal
Case: 09-41767 Doc# 67 Filed: 11/23/10 Entered: 11/24/10 12:25:36 Page 3 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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4	Decision
creditors, not creditors of the decedent’s estate. 	The Petition
also refers to “Respondent’s chapter 13 bankruptcy,” again, a clear
reference to Burns the individual, not Burns the Administrator.
The court holds that the actions Gordon took in the Superior
Court were against Burns, personally, and not against Burns in her
capacity as Administrator.
Bankruptcy Code § 362(k)(1) provides that “an individual
injured by any willful violation of a stay provided by this section
shall recover actual damages, including costs and attorneys’ fees,
and, in appropriate circumstances, may recover punitive damages.”
Here, it is undisputed that Burns incurred attorneys’ fees in the
sum of $2,695 as the proximate result of Gordon’s willful violation
of the automatic stay. 	The court will therefore issue its order
awarding Burns damages in that amount against Gordon.
Because of competency issues, the court will not assess damages
against Kimberly Hervey. 	Moreover, the court does not believe this
is an “appropriate circumstance” for imposition of punitive damages
in that Gordon’s actions were not the egregious, intentional type of
misconduct normally associated with punitive damage awards under
Bankruptcy Code § 362(k)(1). 	See, e.g., In re Knaus, 889 F.2d 773
(8th Cir. 1989).
END OF ORDER
Case: 09-41767 Doc# 67 Filed: 11/23/10 Entered: 11/24/10 12:25:36 Page 4 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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5	Decision
COURT SERVICE LIST
Jeff Hoffman, Esq.
Law Office
901 Clay Street
Oakland, CA 94607-3900
Scarlet Gordon, Esq.
140 Margaret Avenue
San Francisco, CA 94112
Case: 09-41767 Doc# 67 Filed: 11/23/10 Entered: 11/24/10 12:25:36 Page 5 of 5