Samantha Lynn Masi

MEMORANDUM OF DECISION - 1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF IDAHO
______________________________________________________
In Re:
Bankruptcy Case
SAMANTHA L. MASI, 	No. 05-00412
Debtor.
______________________________________________________
MEMORANDUM OF DECISION
______________________________________________________
Appearances:
Kelly Beeman, Boise, Idaho, Attorney for Debtor.
Stephen French, Boise, Idaho, Attorney for Creditors Mike
McCormick and West Coast Car Sales.
Chapter 7 Debtor Samantha Masi asks for an award of money
damages from Mike McCormick and his company, West Coast Car Company,
because, she alleges, they willfully violated the automatic stay. Mot. for
Sanctions, Docket No. 7. Debtor contends that after learning of her bankruptcy
filing, West Coast, acting through McCormick, demanded that she return the car
she had purchased from West Coast, or that she pay the balance owed, within
three days. When Debtor did not comply, she alleges that McCormick caused her
vehicle to be repossessed while she was at work.
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1 This Memorandum of Decision is the Court’s findings of fact and conclusions
of law. Fed. R. Bankr. P. 7052, 9014. Some aspects of the witnesses’ testimony was
conflicting and contradictory. In making its findings of fact, the Court has relied upon its
opportunity to observe the witnesses testify, assess their credibility, and assign the proper
weight to be afforded to their testimony.
2 West Coast is the assumed business name of McCormick Enterprises Inc.; Mr.
McCormick is the president of that company.
MEMORANDUM OF DECISION - 2
The Court conducted an evidentiary hearing on Debtor’s motion on
April 27, 2005. After considering the evidence and testimony, the parties’ briefs,
and applicable legal authorities, the Court concludes Debtor’s motion should be
granted for the reasons discussed below.1
FACTS
Debtor is a twenty-one year old single mother. She works for the
day care facility that her child attends in Boise. She lives with her mother.
On February 7, 2005, Debtor consulted a bankruptcy attorney. At
his office, she reviewed papers he had drafted to file a bankruptcy case, and she
signed a Chapter 7 bankruptcy petition. Ex. 1. After leaving her lawyer’s office,
Debtor, accompanied by her mother, went to West Coast Car Company (“West
Coast”)2 in hopes of locating a car she could afford to purchase. Debtor had
worked at West Coast several years ago and, based on her relationships with
McCormick and other West Coast employees, Debtor assumed she would be
treated fairly there.
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3 The application included a question about whether the applicant had been
involved in a bankruptcy proceeding in the last ten years. Debtor answered the question
“no,” which at that point in time was accurate.
MEMORANDUM OF DECISION - 3
While at West Coast, Debtor completed a credit application and
selected a 1997 Jeep Grand Cherokee that she might want to purchase. 3 West
Coast employees allowed her to take the vehicle home overnight to consider the
purchase.
On February 9, Debtor decided to purchase the Jeep. She agreed to
a price of $6,999. Debtor traded-in her 1989 Chevrolet Corsica and gave West
Coast $2,650 in cash. She financed a total of $3,493. The purchase contract
provided:
In the event of a time payment sale, this order shall not
become binding until accepted by a bank or finance
institution willing to purchase a time sales agreement
between the party or parties hereto based on such
items. In the event of a credit report unacceptable to
the financing institution, the purchaser will return the
vehicle herein described within 48 hours, to the dealer.
Ex. 4.
Debtor testified that a West Coast employee led her to believe that
Westlake Financial had agreed to finance her purchase. But, in fact, Westlake had
made no such commitment. Instead, after West Coast submitted the application,
contract and other materials to the finance company, on February 19, 2005,
Westlake notified West Coast that it would not extend credit to Debtor because it
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had discovered Debtor had just filed a Chapter 7 petition. Ex. 6. True enough,
Debtor’s petition under Chapter 7 of the Bankruptcy Code had been filed on
February 11, 2005, two days after she made the deal with West Coast to buy the
Jeep. Docket No. 1.
After learning of the finance company’s unwillingness to purchase
the contract, and the reason for its decision, West Coast employee Pamela Rains
was dispatched to visit Debtor at the day care center on Thursday, February 24.
Rains informed Debtor that she needed either to pay $3,500 to West Coast by the
following Monday or return the Jeep. If Debtor would give up the Jeep, Rains
told Debtor her Chevrolet and her down payment would be returned to her.
After Rains left, Debtor contacted her bankruptcy lawyer. The
attorney immediately sent a letter to McCormick via facsimile. Ex. A. In that
letter, counsel expressed his opinion that Rains’ visit and West Coast’s collection
efforts had violated the automatic stay, and he warned McCormick that any
attempt to repossess the vehicle would result in the filing of a “Motion for
Sanctions.” Ex. A.
McCormick testified that after receiving this letter he consulted a
representative of a local automobile dealers’ association for advice. Based upon
what he was told, he concluded that since Debtor’s loan had never been finalized,
the sale of the Jeep to her was not effective under the terms of the parties’
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MEMORANDUM OF DECISION - 5
contract. As a result, McCormick decided he was free to repossess the Jeep
without regard to Debtor’s bankruptcy filing.
McCormick hired a repossession agent to pick up the vehicle. While
he could not remember the exact date he retained this agent, he remembered it was
between seven and ten days after Westlake declined to fund Debtor’s loan. The
repo agent was also a private investigator.
Debtor claims that on Friday, February 25, she was followed in her
car while driving around Boise, over the course of several hours, by another driver
whose conduct frightened her to the point that she called the local police. The
police informed Debtor that the vehicle following her was registered to a private
investigator, but would not reveal any other information to her.
On March 1, 2005, Debtor drove her Jeep to work. That afternoon,
Debtor’s employer informed her that a tow truck was attempting to take her Jeep.
When Debtor went outside to confront the tow truck driver, she saw the vehicle
that had been following her a few days earlier. The implication of Debtor’s
testimony on this point was that the driver of the vehicle that had harassed Debtor
earlier was present and was directing the repossession.
Debtor protested the repossession and called the local police. The
police arrived, but offered Debtor no relief, and over her emotional objections,
Debtor’s vehicle was towed away. With her employer’s help, Debtor was able to
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4 Debtor’s other missing items were apparently returned to her prior to the
hearing.
MEMORANDUM OF DECISION - 6
remove a child car seat and some of Debtor’s other personal effects from the Jeep,
but she could not remove several compact disks, her debit card, and some other
miscellaneous items from the vehicle.
Unfortunately, several of the children at the day care facility
observed this traumatic and emotional scene. Some of the youngsters were
distraught, and when they returned home, they recounted the day’s events to their
parents. Debtor and her employer were contacted by the distressed parents, and
Debtor was required to reassure the children and several parents that she was not a
thief and to otherwise explain the situation. This caused Debtor additional
emotional strain.
Through the efforts of her attorney, Debtor finally regained
possession of the Jeep on April 11, when McCormick directed West Coast
employees to return the vehicle to Debtor’s workplace. The Jeep had a dead
battery and was inoperable, and four of Debtor’s compact disks were missing.4 In
addition, Debtor’s license plates had been removed and discarded. When she
complained, the next day McCormick sent a mechanic to replace the battery, and
another of McCormick’s employees arranged to re-register the Jeep so she could
obtain new license plates.
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5 This pleading is entitled “Motion Regarding Sanctions” but at the hearing, the
parties and the Court agreed it should be considered a response to Debtor’s motion. Both
Debtor and West Coast have also filed briefs. Docket Nos. 40, 49, 52.
MEMORANDUM OF DECISION - 7
Debtor filed her Motion for Sanctions on March 2, 2005. Docket
No. 7. McCormick filed a response on April 25, 2005. Docket No. 41. 5
DISCUSSION
Debtor’s motion raises two questions. First, did McCormick and
West Coast violate the § 362(a) automatic stay? And second, if either did, is
Debtor entitled to damages as provided by § 362(h)?
The Bankruptcy Code instructs that:
“[A] petition filed under [the Bankruptcy Code] . . .
operates as a stay, applicable to all entities, of . . .
(3) any act to obtain possession of property of the
estate or of property from the estate or to exercise
control over property of the estate;
. . . .
(6) any act to collect, assess, or recover a claim
against the debtor that arose before the commencement
of the case under this title . . . .
11 U.S.C. § 362(a). 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.” 11 U.S.C. § 362(h).
A creditor willfully violates the automatic stay when (1) it knows of
the existence of the automatic stay and (2) intentionally acts in violation of that
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MEMORANDUM OF DECISION - 8
stay. Eskanos & Adler, P.C. v. Leetin, 309 F.3d 1210, 1215 (9 th Cir. 2002); In re
Daniels, 04.4 I.B.C.R. 153, 156 (Bankr. D. Idaho 2004). The creditor need not act
with a specific intent to violate the stay; it is enough that the creditor intended the
act that in fact violates the stay. In re Daniels, 04.4 I.B.C.R. at 156. An award of
actual damages is mandatory if a debtor proves both that a willful violation
occurred and that the debtor suffered some injury as a result. See id. at 157
(noting award is mandatory); In re Jacobson, 03.2 I.B.C.R. 119, 121 Bankr. D.
Idaho 2003) (noting actual damages must be proved).
The critical role of the automatic stay in a bankruptcy case can not
be overstated. Through the stay, debtors are given the relief necessary to put their
financial affairs in order and to obtain a discharge. The stay also prevents
creditors from racing to dismember financially the debtor to the prejudice of other
creditors. Simply put, the automatic stay is one of the most fundamental and
important protections provided to debtors and creditors by the federal Bankruptcy
Code. In re Daniels, 04.4 I.B.C.R. at 140.
A. 	The parties’ legal interests in the Jeep upon Debtor’s
bankruptcy filing.
The precise extent of the parties’ legal relationship on the date
Debtor’s bankruptcy case was filed is not entirely clear. But in this context,
precision is not required.
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6 Although it is not clear from the record, Debtor may have held other legal rights
in the Jeep that were protected by the stay. For example, she may have been the title
holder of record, Idaho Code § 49-503; Hopkins v. Shradley, 03.1 I.B.C.R. 7, 8 (Bankr.
D. Idaho 2003), and if West Coast held an enforceable security interest in the Jeep, a
question on which the Court expresses no opinion at this time, West Coast’s interests
would be limited to those granted to secured creditors under Idaho Code § 28-9-101 et
seq. Alternatively, if unsecured, West Coast may simply be a seller of goods and the
parties’ relationship would be defined by Idaho Code § 28-2-101 et seq.
MEMORANDUM OF DECISION - 9
Under the Bankruptcy Code, the commencement of a bankruptcy
case creates a bankruptcy estate. 11 U.S.C. § 541(a). This estate includes “all
legal or equitable interests of the debtor in property as of the commencement of
the case.” 11 U.S.C. § 541(a)(1). In other words, whatever interest Debtor held in
the Jeep when her bankruptcy petition was filed became property of the resulting
bankruptcy estate. This estate would include Debtor’s possessory interest.
Williams v. Levi (In re Williams), __ B.R. __, No. BAP CC-04-1033-BKPA, 2005
WL 857439 at *5–*6 (B.A.P. 9 th Cir. Mar. 25, 2005) (noting that a possessory
interest in real property constitutes property of the estate).
Under these authorities, it is not particularly significant whether
Debtor “owned” the Jeep for purposes of this analysis. At a minimum, it is
undisputed Debtor had possession of the Jeep on the date she filed bankruptcy
under the terms of the parties’ contract. As a result, both Debtor and the Jeep were
protected by the § 362(a) automatic stay.6
At the same time, as of the date of Debtor’s bankruptcy filing, it is
equally clear that West Coast was a creditor and held either a prebankruptcy
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MEMORANDUM OF DECISION - 10
contractual claim against Debtor for the unpaid purchase price of the Jeep, or
failing financing, a right to the return of the Jeep. For bankruptcy purposes, a
“creditor” is “an entity that has a claim against the debtor that arose at or before
the order for relief . . . .” 11 U.S.C. § 101(10)(A). A “claim” is any right to
payment from, or to an equitable remedy against, a debtor whether or not such
right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured, or unsecured. 11
U.S.C. § 101(5).
Under these facts, any attempts by West Coast to collect the unpaid
purchase price, or to retrieve the Jeep, were surely stayed by the provisions of §
362(a) quoted above.
B. 	Both McCormick and West Coast willfully violated the stay.
West Coast, as a business entity, acts through its agents and
employees. McCormick managed West Coast. In this case, West Coast was put
on notice of Debtor’s bankruptcy filing, and the existence of the automatic stay, no
later than February 19 when it received word from Westlake that it would not fund
Debtor’s automobile loan because she had filed a bankruptcy case. McCormick
testified that he did not specifically remember receiving this communication or
learning of its contents. But, even if the Court believes McCormick did not learn
earlier, there is no dispute that he became aware of the automatic stay arising in
Debtor’s case on February 25 when Debtor’s attorney (“Counsel”) sent him a
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7 Whether or not the repossession agent violated the automatic stay is not before
the Court.
MEMORANDUM OF DECISION - 11
letter informing him of Debtor’s filing and warning him not to attempt to
repossess the Jeep.
West Coast acted intentionally and in fact violated the stay when its
agent, Pamela Rains, personally confronted Debtor at work on February 24. This
contact constituted both an attempt to obtain possession of property of the
bankruptcy estate in violation of § 362(a)(3), and an attempt to collect a claim
against Debtor in violation of § 362(a)(6).
As the manager, McCormick is charged with knowledge of the
activities of the various employees of West Coast, including Rains. But even if he
were totally unaware of what was transpiring with Debtor, it was McCormick who
personally hired the repossession agent and directed him to repossess the Jeep.
Both McCormick and West Coast violated the § 362(a)(3)7 stay by orchestrating
the repossession. See In re Andrus, 04.3 I.B.C.R. 137, 141–44 (Bankr. D. Idaho
2004) (finding similar conduct to have violated the stay).
C. 	Debtor’s damages.
1. Actual damages.
Debtor concedes she incurred no significant actual economic
damages, apart from her attorney’s fees, on account of McCormick and West
Coast’s stay violations. Pl.’s First Brief at 5, Docket No. 49; In re Jacobson, 03.2
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I.B.C.R. at 121 (noting an attorney’s fees constitute actual damages for § 362(h)
purposes). There is evidence in the record that friends and family provided
transportation for Debtor and her child while she was without the Jeep; that most
of her personal effects were returned to her; and that West Coast remedied the
battery, license plate and registration issues. In addition, Debtor does not argue,
and so the Court need not address, whether Debtor is entitled to recover money
damages for the emotional distress she may have suffered as a result of the
tumultuous repossession. See Dawson v. Washington Mutual Bank, F.A. (In re
Dawson), 390 F.3d 1139, 1148 (9 th Cir. 2004).
Apparently, Debtor seeks only to recover her attorney fees and costs
incurred in connection with the stay violation as actual damages. Counsel has
requested that he be allowed to prove up the amount Debtor will be charged for
fees and costs after the Court renders a decision on whether Debtor is entitled to
recover. Pl.’s First Brief at 5–6, Docket No. 49.
Frankly, Debtor’s piecemeal approach to proving her damages is
unnecessarily inefficient. Debtor could have submitted proof about the amount of
her attorney fees and costs at the hearing, thereafter supplementing that proof in
writing, post-hearing, to address any additional costs incurred in the preparation
and filing of Debtor’s post-hearing brief. In the past, the Court has declined to
award damages for a stay violation because of insufficient proof of the amount of
a debtor’s damages.
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8 Debtor’s counsel faces an additional issue. Rule 2016(b) requires a debtor’s
attorney to file an amended disclosure concerning any changes to his fee agreement with
Debtor within fifteen days after reaching a new agreement. Counsel’s original disclosure
covers only his services, and fee agreement, for the bankruptcy filing. No amended
disclosure has been filed. Absent good cause, the failure to do so in a timely fashion
constitutes a reason to reduce or deny Counsel’s fees. In re Larson, 04.1 I.B.C.R. 15, 16
(Bankr. D. Idaho 2004). This issue will be considered in connection with fixing the
amount of Debtor’s attorney fees and costs.
MEMORANDUM OF DECISION - 13
Nonetheless, based on the record, the Court is comfortable in finding
that Debtor has suffered actual damages in the form of the legal fees she has
incurred as a result of McCormick and West Coast’s conduct. Denying her relief
because she failed to quantify the amount of her actual damages would only
penalize her for her attorney’s decisions, and would deny her the protection of the
automatic stay and compound the harm she has suffered.
Debtor’s attorney will be allowed to file an affidavit itemizing
Debtor’s attorney fees and costs within fourteen (14) days of the date of this
Memorandum. If McCormick or West Coast objects to the amount claimed, they
should file an objection within fourteen (14) days thereafter, and schedule the
motion for further hearing before the Court.8
2. Punitive damages.
Because Debtor incurred some actual damages, the Court may
consider Debtor’s request that she also recover punitive damages from the stay
violators. In re Daniels, 04.4 I.B.C.R. at 158. Punitive damages are appropriate
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MEMORANDUM OF DECISION - 14
in this context if McCormick’s or West Coast’s conduct reflects “a reckless or
callous disregard for the law or rights of others.” Id. (internal citations omitted).
In In re Andrus, the Court imposed punitive sanctions against a
secured creditor, a towing company, and an auto dealer for their wrongful
repossession of a debtor’s vehicle in violation of the automatic stay. 04.1 I.B.C.R.
at 144–46. In doing so, the Court focused on the creditor’s continuing course of
conduct in effecting the repossession despite having received notice of the
debtor’s bankruptcy filing. In part, sanctions were justified because certain parties
“thumbed their collective noses at . . . the requirements of the Bankruptcy Code
. . . , ignored the information about the automatic stay made available by Debtors’
counsel . . . [and] neglected any and all opportunities to determine whether they
were indeed on solid legal ground.” Id. at 145. The Court awarded the debtor
$8,000 in punitive damages and ordered that the lien on the debtors’ vehicle be
released in partial satisfaction of the punitive damages award. Id. at 146.
McCormick’s and West Coast’s conduct merits punitive damages.
Both had ample advance notice of Debtor’s bankruptcy filing before they acted.
Despite this, West Coast engaged in collection efforts and McCormick ignored a
warning from Debtor’s attorney that a repossession attempt would violate federal
law. Confronting Debtor at her place of employment was unconscionable. So,
too, the tactics employed by the repossession agent selected by McCormick, who
saw fit to stalk and terrorize Debtor in her car for several hours, were
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9 The Court has suggested that in some cases creditors should be afforded a short
time to seek legal advice on bankruptcy stay issues. In re Jacobson, 03.2 I.B.C.R. at 120.
A creditor in Jacobson repossessed the debtor’s property prior to filing but delayed in
returning the property postpetition. The Court concluded that while it was appropriate to
allow time to confer with an attorney, the creditor in that case had been unjustifiably
dilatory. Whatever a “short time” means, the substantial delay in returning Debtor’s
vehicle in this case grossly exceeded that standard.
MEMORANDUM OF DECISION - 15
reprehensible. Finally, the actual repossession was a fiasco. The repo agent
caused a breach of the peace and unnecessarily embarrassed Debtor in front of her
employer and the children attending the day care center. Moreover, McCormick
and his company retained Debtor’s Jeep for forty-one days before concluding they
had relied upon bad advice and that their legal position was untenable.9 All these
factors clearly show that McCormick and West Coast acted with a reckless and
callous disregard for Debtor’s rights. The Court concludes that McCormick and
West Coast have deserve the punitive damages they are ordered to pay below.
To be fair, several factors weigh against a large monetary sanction in
this case. The warning letter sent to McCormick was, in some respects, confusing
and inartfully phrased. McCormick did seek guidance from a trade group
representative before acting, although the legal advice he received was just plain
wrong. And after learning that the repossession was “illegal,” McCormick and
West Coast made good faith efforts to remedy their acts.
In addition, Debtor’s conduct in this case merits some criticism. She
bought a car on credit, after signing a petition at her attorney’s office, knowing
that her bankruptcy filing was imminent and without disclosing that fact to the
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10 Debtor testified that she discussed her intentions with her bankruptcy attorney,
who advised her that any debt she incurred would likely not be discharged. She also
testified that she intended to reaffirm the debt on the Jeep. Even so, absent full disclosure
of these facts to West Coast and Westlake, Debtor’s conduct put others at financial risk.
Debtor’s attorney should also examine the propriety of his advice.
MEMORANDUM OF DECISION - 16
dealer or proposed lender. While in doing so, Debtor did not violate a law per se,
her sense of ethics was questionable. 10 Debtor should not significantly profit from
her strategy, and the consequences flowing from Debtor’s conduct remain to be
seen. Even so, two wrongs certainly do not make a right; the issue before the
Court focuses primarily on Creditor’s conduct, not Debtor’s conduct.
McCormick and West Coast ask that if they are required to pay
punitive damages, that recovery be given to the bankruptcy estate, rather than to
Debtor, so the funds may be distributed to Debtor’s unsecured creditors. This
condition is appropriate because, in their opinion, Debtor “lied” on her credit
application and acted inequitably. Brief at 4, Docket No. 50. In contrast, Debtor
first asked the Court to award her the Jeep free of any liens or claims of West
Lake, Mot. at 3–4, Docket No. 7, and then later, that the Court award her money
damages and allow her to “reaffirm” the debt on the Jeep at 0% interest. Pl.’s First
Brief at 6, Docket No. 49.
While tempting, McCormick’s and West Coast’s suggestion for
punitive damages is problematic. The plain language of § 362(h) dictates that the
individual injured by a willful stay violation shall recover damages. Here, Debtor,
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11 Debtor claimed an exemption in her equity in the Jeep in the bankruptcy case,
a claim that was allowed. Am. Schedule C, Docket No. 48. Her right to an award of
damages for the stay violations, arising post-bankruptcy, also does not constitute property
of the bankruptcy estate. See 11 U.S.C. § 541(a) (including in the estate the debtor’s
interests in property as of the commencement of the case); cf. O’Loghlin v. County of
Orange, 229 F.3d 871, 874 (9th Cir. 2000) (noting that for bankruptcy purposes, a cause
of action arises at the time of the events giving rise to the action).
MEMORANDUM OF DECISION - 17
not the bankruptcy estate, 11 was injured by the stay violations; her creditors were
not. Compare In re Daniels, 04.4 I.B.C.R. at 159 (awarding damages to the
debtor, who was injured by a stay violation), with Knupfer v. Lindblade (In re
Dyer), 322 F.3d 1178, 1189–90 (9 th Cir. 2003) (explaining that the Chapter 7
trustee may recover damages under § 105(a) for a stay violation that harms the
bankruptcy estate). Finally, since West Coast is likely a creditor in this case, it
would be inappropriate to allow it to share in any distributions from the damage
award.
There are also problems both approaches proposed by Debtor. In
this case, the Court declines to award Debtor the Jeep free from any liens because
no evidence was presented showing that West Coast holds a perfected security
interest in the Jeep. Awarding Debtor the Jeep “free and clear” of the claims of
West Coast will be a useless gesture if the creditor’s claim to the Jeep is
unenforceable. Moreover, due process requires that awards of punitive damages
be proportional to the amount of actual damages, and here Debtor has not finally
established the amount of her actual damages. In re Wiersma, 03.1 I.B.C.R. 42,
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44 (Bankr. D. Idaho 2003) (noting due process implications of punitive damage
awards).
Debtor’s other request for relief is likewise troubling. Debtor
engages in loose use of bankruptcy terminology by asking that West Coast be
forced to allow her to “reaffirm” the debt without interest. A reaffirmation in this
context refers to a voluntary agreement between a debtor and creditor. See 11
U.S.C. § 524(c); Bankruptcy Receivables Mgmt v. Lopez (In re Lopez), 274 B.R.
854, 859–60 (B.A.P. 9 th Cir. 2002) (noting reaffirmation requires a new
agreement); Huyett v. Idaho State University, 104 P.3d 946, 951 (Idaho 2004)
(stating that to be enforceable, an agreement requires mutual assent). West Coast
has not agreed to Debtor’s proposed remedy. While disguised as punitive
damages, Debtor’s request to force West Coast into extending her an interest-free
loan amounts to a cramdown of the debt on the Jeep, a procedure not available to
Chapter 7 debtors. See Dewsnup v. Timm, 502 U.S. 410, 417 (1992); Roberts v.
Nat’l Mortgage Servs. (In re Roberts), 98.4 I.B.C.R. 106, 106–07 (Bankr. D.
Idaho 1998).
While the solution may lack creativity, based on this record, the
Court concludes McCormick and West Coast should be required to pay Debtor a
straightforward monetary award of punitive damages. Because Debtor’s actual
damages are not yet quantified, unless this matter is resolved by the parties, the
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Court will fix the amount of the punitive damage award when it determines the
amount of Debtors’ actual damages.
CONCLUSION
McCormick and West Coast had knowledge of Debtor’s bankruptcy
filing but nonetheless engaged in prohibited activity by attempting to collect from
Debtor and by repossessing the Jeep. Because McCormick and West Coast
willfully violated the automatic stay, Debtor is entitled to recover, as actual
damages, the attorney fees and costs she incurred in prosecuting this motion.
Because McCormick and West Coast recklessly disregarded Debtor’s rights, an
additional award of punitive damages is appropriate.
Debtor’s attorney is instructed to file a detailed affidavit itemizing
the services provided and the attorney fees and costs Debtor incurred in
connection with this matter within fourteen (14) days of the date of this
Memorandum. If McCormick or West Coast objects to the amount claimed, they
should file an objection within fourteen (14) days thereafter, and schedule the
motion for further hearing before the Court. Thereafter, the Court will enter its
order fixing the amount of actual and punitive damages Debtor should recover.
Dated: May 24, 2005
Honorable Jim D. Pappas
United States Bankruptcy Judge
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