Lofton v. Carolina Finance, LLC

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
WILSON DIVISION
IN RE:
DERRICK L. LOFTON
TERESA C. LOFTON
DEBTORS
CASE NO.
06-04032-8-RDD
DERRICK L. LOFTON
Plaintiff
v.
CAROLINA FINANCE, LLC
Defendant
ADVERSARY PROCEEDING NO.
07-00054-8-RDD-AP
MEMORANDUM OPINION
The trial of this adversary proceeding filed by the plaintiff, Derrick L. Lofton against the
defendant, Carolina Finance, LLC, seeking sanctions pursuant to 11 U.S.C. § 362(k), was held on
March 18, 2008 in Greenville, North Carolina. The court has previously entered an order allowing
summary judgment in favor of the defendant for claims brought by the plaintiff pursuant to Article
2, Chapter 75 of the North Carolina General Statutes. For the reasons stated below, judgment will
SO ORDERED.
SIGNED this 27 day of March, 2008.
________________________________________
Randy D. Doub
United States Bankruptcy Judge
____________________________________________________________
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1 The defendant received notice of the plaintiff’s bankruptcy filing, including notice of the 341
meeting of creditors mailed on December 13, 2006, notice that the 341 meeting had been continued
mailed on January 13, 2007, and notice of the motion for confirmation mailed on March 2, 2007.
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be entered in favor of the plaintiff with regard to the remaining claim for relief for willful violation
of the automatic stay against the defendant.
This bankruptcy court has jurisdiction over the parties and the subject matter of this
proceeding pursuant to 28 U.S.C. §§ 151, 157, and 1334, and the General Order of Reference entered
by the United States District Court for the Eastern District of North Carolina on August 3, 1984.
Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409. This is a “core proceeding” within the
meaning of 28 U.S.C. § 157(b)(2)(I), which this court may hear and determine.
The parties stipulated to the following facts. The plaintiff is a citizen and resident of Wayne
County, North Carolina, and is a debtor in the bankruptcy case referenced above. The defendant is
a limited liability company organized and existing under the laws of the State of North Carolina.
The plaintiff filed for relief pursuant to chapter 13 of the Bankruptcy Code on December 10, 2006.
The defendant was included as a creditor on the plaintiff’s bankruptcy case. The defendant had
actual notice of plaintiff’s bankruptcy filing.1 The defendant filed a proof of claim in plaintiff’s
bankruptcy case on March 15, 2007. Defendant’s Exhibit 5. On April 27, 2007, an employee of the
defendant filed a lawsuit in the District Court – Small Claims Division for Wayne County against
the plaintiff seeking to recover money for which it had filed a proof of claim. The plaintiff was
served with the lawsuit on Sunday, May 20, 2007, at approximately 4:40 p.m. by a deputy sheriff
of the Wayne County Sheriff’s Department. 	On May 20, 2007, at approximately 10:00 	p.m.,
plaintiff delivered the small claims pleadings to the drop box at his attorney’s office. On May 21,
2007, plaintiff’s attorney prepared, signed and filed the Adversary Proceeding Complaint. Neither
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plaintiff nor plaintiff’s attorney contacted defendant or defendant’s attorney prior to filing the
adversary proceeding. Plaintiff’s attorney reviewed defendant’s proof of claim before filing the
adversary proceeding. Under cover of letter dated May 23, 2007, plaintiff’s attorney mailed to
defendant’s attorney copies of the Adversary Proceeding Summons and Complaint, indicating in his
cover letter as follows: “I note that you filed a proof of claim in this matter with the chapter 13
trustee. As such, I’m providing you a courtesy copy of these documents.” Defendant’s Exhibit 1.
On May 29, 2007, upon returning from the Memorial Day long holiday weekend, defendant’s
attorney received said cover letter with enclosures and, on the same day, contacted plaintiff’s
attorney. On May 30, 2007, defendant’s attorney mailed to the Wayne County Clerk of Superior
Court a dismissal of the small claims action and served both plaintiff and plaintiff’s attorney with
the same. Defendant’s Exhibit 2. On May 31, 2007, said dismissal was received and filed by the
Wayne County Clerk. Defendant’s Exhibit 3. The defendant had a procedure in place for handling
bankrupt accounts, including the notation of the bankruptcy in the computer and in the hard files
themselves upon receipt of the notice of bankruptcy filing. 	In this instance, the procedure for
handling bankruptcy accounts was not followed. 	No judgment was entered in the small claims
proceeding. The plaintiff did not attend the small claims proceeding hearing. The plaintiff did not
incur any medical bills as a result of the small claims proceeding.
Testifying at the hearing of this matter was Mr. Victor Morris, who has been employed with
the defendant for three years as the collections manager at the Kinston, North Carolina branch of
the defendant. Mr. Morris testified that the defendant finances automobiles in its secondary market
of eastern North Carolina. The parent company of the defendant is based in Greensboro, North
Carolina, with seven companies in North Carolina and Virginia. Mr. Morris testified that his duties
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include reviewing accounts, assignment of collection of accounts, assignment of repossession of
cars, disposal of cars by wholesale or auction, and overseeing 30-day and 60-day accounts. As part
of his duty to oversee the collection of accounts, Mr. Morris makes phone calls for those accounts
and supervises others making those calls. Mr. Morris testified that Connie Howington receives the
mail each day at the Kinston office, including bankruptcy notices. All bankruptcy notices are then
routed to Daniel Rhem, manager of the Kinston office, who handles them from that point. Mr.
Morris testified that he never receives bankruptcy notices. Mr. Morris testified that part of his duties
is to file lawsuits on behalf of the defendant. He files suits in Lenoir, Wayne, Craven, Pitt and
Wilson Counties. Mr. Morris next explained the process for filing suits. He indicated that he is first
given a report prepared by Mr. Rhem that indicates which accounts are due for $5000 or less. He
then reviews the account on the computer to determine which county the customer resides in to
determine in which county a small claims action must be filed. Mr. Morris only files suit against
accounts at the direction of Mr. Rhem. Mr. Morris indicated that he filed a small claims complaint
for money owed in the amount of $4,978.82 against the plaintiff, which was prepared on April 25,
2007. Plaintiff’s Exhibit 1. He indicated that he maintains a stack of small claims complaint for
money owed forms in his office. Mr. Morris stated that he filled out the complaint, obtaining the
necessary information from the defendant’s computer file on the plaintiff’s account. At that time,
there was nothing in the computer file to indicate that the account was in bankruptcy. 	He then
signed the bottom of the complaint. Mr. Morris indicated that, at that time, he also filled out other
information necessary for the Clerk of Court’s Office of Wayne County to file the complaint and for
the Wayne County Sheriff’s Department to serve the complaint and summons upon the plaintiff.
Plaintiff’s Exhibit 2. Mr. Morris admitted that it was his intent to file the small claims action against
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the plaintiff. He further admitted that he does not check to determine if an account is in bankruptcy
prior to filing lawsuits on behalf of the defendant. Once he receives the list of accounts from Mr.
Rhem, he simply proceeds to file the small claims actions. Mr. Morris indicated that he would not
have pulled the paper file on the plaintiff’s account prior to filing the small claims action, as all of
the information necessary to complete the complaint is kept in the computer file. 	Mr. Morris
explained that he undertook no independent means to determine if the plaintiff’s case was in
bankruptcy, but relied upon Mr. Rhem to ensure it was appropriate to file suit on accounts through
a small claims action. 	Mr. Morris further testified that he learned that the plaintiff was in
bankruptcy only after he returned from the proceedings in Wayne County against the plaintiff,
although the timing of Mr. Morris’ knowledge was later questioned by Mr. Rhem. 	Mr. Morris
testified that he has never personally violated the automatic stay before. To his knowledge, the
defendant has never violated the automatic stay before. Mr. Morris also testified that he understands
the 	significance of the automatic stay in bankruptcy and understood at the time he filed the
complaint against the debtor that he was not supposed to do so in cases in bankruptcy.
The plaintiff testified that, prior to filing bankruptcy, he and his wife were struggling to pay
the bills, receiving calls from creditors about past-due payments, and in danger of having their
vehicles repossessed and the note on their house foreclosed. In fact, one of the debtors’ vehicles was
repossessed before they filed bankruptcy. At the time of their financial difficulties, the debtors were
both employed by the North Carolina Department of Corrections. They left those jobs and began
working as professional truck drivers. 	In the beginning, they were not making enough money,
which compounded their financial stress. However, once the debtors filed for bankruptcy, the calls
from creditors stopped, and things were getting back to normal in their household. The plaintiff
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testified that he had made his plan payments to the trustee each month from the time of 	filing
through May 2007. On Sunday, May 20, 2007, around 4:30 p.m., there was a knock at the debtors’
door. When he answered the door, there was a Wayne County Sheriff’s deputy there. He asked for
Mr. Lofton, who identified himself. At that time, the deputy handed the plaintiff some forms and
left. After the deputy left, the plaintiff read the summons to appear in small claims court on May
22, 2007. Plaintiff’s Exhibit 2. The plaintiff knew he had to appear in court on that date and that
he was being sued. 	He also knew that the creditor was listed in his bankruptcy because of a
deficiency from the repossessed vehicle.
The debtor testified that from December 2006 through May 2007, things were getting back
to normal. For that reason, when he received the summons, he became very upset because he didn’t
think situations like this were supposed to happen after filing bankruptcy. The plaintiff testified that,
when he saw that the defendant was trying to sue him, he started cussing and yelling. When his wife
questioned him about what was wrong and he started to tell her, he just got angrier. He slammed
the door and almost broke a very expensive vase owned by Mrs. Lofton.
The plaintiff testified that after he settled down a little, he tried to contact his attorney’s
office. He left a voicemail because no one was there on Sunday. That evening, he took the papers
he had received from the deputy and dropped them off in the drop box outside his attorney’s office.
He testified that the distance from his home to the attorney’s office is roughly 12 to 15 miles.
The plaintiff had to be in Rocky Mount by 12:00 a.m. on May 21, 2007 to pick up a load
going to Seymour, Indiana, which had to be there by 2 p.m. on May 21, 2007. Therefore, he drove
his tractor truck to the attorney’s office, which was about 10 miles out of his way to Rocky Mount.
The debtor indicated that if his employer determined that he had gone off route, he could have had
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to pay for the gas used in the truck, which has a 200 gallon tank. The truck averages 5.8 miles per
gallon. His employer did not charge him for the gas required to make this particular off-route trip.
After he dropped off the papers, he proceeded to Rocky Mount and picked up the load to be
delivered the following afternoon in Indiana. Once the plaintiff was on the road, at 7 a.m. the next
morning, he attempted to contact his dispatcher in Charlotte, North Carolina to explain that the
dispatcher might need to find someone to cover the plaintiff’s load assignment for Tuesday, May
22, 2007. When the dispatcher requested a reason, the plaintiff had to explain about the lawsuit and
his court date. 	He also had to explain about his vehicle being repossessed and the resulting
deficiency claim. 	The plaintiff testified that he was embarrassed to have to disclose personal
information of that nature to his dispatcher, but if he had to go to court on Tuesday, he would have
had to find someone to cover Tuesday’s load. Having to request a substitute driver is a big deal
because it creates a chain effect among the employer’s drivers. The debtor testified that he and his
wife have a designated trucking run. If they had to be pulled off that run at any time, the dispatcher
could have pulled them off that run permanently. Then, they would not have the certainty of a
designated route. After talking with their dispatcher for approximately twenty minutes, the plaintiff
told the dispatcher that he would keep him updated as he could. After speaking with his attorney,
the plaintiff was able to notify the dispatcher that he did not have to go to court on May 22, 2007.
Therefore, he did not have to forego his load on Tuesday and was able to make his regular runs.
When he found out he would not have to go to court, the plaintiff was relieved, as was his wife,
because they ran a designated team route and she could not have made the run by herself. The
plaintiff testified that he feels he is entitled to some compensation from the defendant because he
was protected under the bankruptcy laws at the time the small claims action was filed, and the
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defendant was notified when the bankruptcy was first filed. The plaintiff indicated that he had been
sued before but did not consider it a big deal then because he was not in bankruptcy at that time.
Mr. Daniel Rhem testified that he has been employed by the defendant for five and one-half
years, and is currently the manager of the Kinston office, having served in that capacity since
January 2007. Prior to that, Mr. Rhem was the assistant manager in the Kinston office. Mr. Rhem
admitted that he was aware of the plaintiff’s bankruptcy filing prior to the filing of the small claims
action because he had received a notification of the bankruptcy in the mail.
Mr. Rhem explained that the procedure of the defendant is to note the bankruptcy in both the
hard file and in the computer file upon receipt of the bankruptcy notice. However, in this instance,
Mr. Rhem overlooked the computer file and only made a notation in the hard paper file. When
asked for the reason for his oversight, he indicated that he had recently taken over as manager and
the office was understaffed at that time. 	Mr. Rhem stated the office was very busy during tax
season. Mr. Rhem indicated that the hard file is kept in a separate filing cabinet and would not have
been reviewed prior to the filing of the small claims action, as the contract and a copy of the title are
kept in a different file which is taken to court. All subsequent notices would have been filed in the
hard paper file.
Mr. Rhem admitted that the small claims action was filed at his direction. As manager, it
is his job to pull the monthly reports and to note any cases where amounts owed were $5,000.00 or
less for pursuit in small claims court. Once he pulled the report and noted those cases, he directed
Mr. Morris to proceed with the filing of small claims actions. He indicated that the plaintiff’s name
would have been one of fifteen to twenty names on that report. Had the plaintiff’s bankruptcy been
correctly coded into the computer system, the plaintiff’s name would have still been on the list, but
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would have been tagged as a chapter 13 debtor, and would not have been pulled for pursuit of the
small claims action.
Mr. Rhem indicated that, had the plaintiff or his attorney notified him of the plaintiff’s
bankruptcy after the filing of the action, the action would have been immediately dismissed. As
soon as Mr. Rhem realized that a mistake had been made, he contacted the defendant’s attorney to
dismiss the case, and the attorney did so immediately.
Mr. Rhem indicated that Mr. Morris was confused about when he was notified of the
plaintiff’s bankruptcy. Mr. Rhem stated that it was not on the date of the small claims action, but
rather on the date he received a copy of the adversary proceeding complaint from the plaintiff’s
attorney.
Mr. Rhem testified that, after speaking with the managers of the defendant’s locations in
Greensboro and Kernersville, he was not aware of any other violations of the automatic stay by the
defendant. Mr. Rhem indicated that he did understand the importance of the automatic stay and was
unaware of any other instances in which there had been a failure to code a bankruptcy according to
the defendant’s procedure.
Counsel for the defendant argues that there are two issues in this case, willfulness and injury
or damages. Counsel argues that this case occurred because of a clerical error, and therefore should
not be considered a willful violation of the automatic stay. In support of his argument, counsel cites
two cases from the Western District of North Carolina, In re Hamrick, 175 B.R. 890 (W.D.N.C.
1994) and In re Peterson, 297 B.R. 467 (Bankr. W.D.N.C. 2003). Both of these cases involved
situations where the creditor violated the automatic stay via automatically generated computer errors
after a prior violation of the automatic stay by the creditor. 	In both cases, the violation was
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immediately remedied upon notification. 	Counsel argues that, had the plaintiff or his counsel
notified the defendant of the violation prior to the filing of this action, the violation would have been
immediately remedied by a voluntary dismissal of the small claims court complaint with no
necessity of an adversary proceeding.
Counsel for the defendant further argues that the plaintiff has suffered no injury or damages
in this case. 	He points to the fact that there was no damage to the plaintiff’s property and no
physical harm done to the plaintiff as proof that the plaintiff cannot meet this requirement. Further,
counsel argues that, if the plaintiff is entitled to damages, those damages could have been mitigated
by counsel for the plaintiff contacting the defendant prior to the filing of the adversary proceeding.
Counsel for the plaintiff argues that this case is about determining the appropriate damages
to compensate the plaintiff for the day and one-half he spent worrying about the small claims action.
During that day, he had to get things resolved so that he didn’t have to miss work and so that he
would not have to go to court, thereby mitigating his damages. Counsel argues that willfulness is
present in this case because the defendant had been notified of the bankruptcy case and had
participated in the bankruptcy case by filing a proof of claim. Then, the defendant’s employees had
to intentionally fill out the complaint form, make out a check to the clerk of court for the cost of
filing and service, and mail it to the clerk of court. Counsel indicated that it has been his experience
that entering settlement negotiations prior to the filing of a contested action is useless, which is why
he did not contact defendant’s counsel prior to filing the adversary proceeding.
Based on the foregoing, the court finds that the plaintiff has been injured by a willful
violation of the automatic stay and shall recover actual damages including costs and attorney fees.
The court further finds that punitive damages are not appropriate in this case. In addition to the facts
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2The defendant received notice of the plaintiff’s bankruptcy filing, including notice of the 341
meeting of creditors mailed on December 13, 2006, notice that the 341 meeting had been continued
mailed on January 13, 2007, notice of the motion for confirmation mailed on March 2, 2007, and a
stamped filed copy of the proof of claim. Each receipt of bankruptcy notices and correspondence gave
the defendant an opportunity to properly code the computer system. No such procedure was in place.
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stipulated by the parties and testified to during the trial of this matter, as set forth hereinabove, the
court finds that this court has previously entered summary judgment in part in favor of the
defendant. In the court’s order regarding summary judgment, the court found that the defendant had
received notice of the plaintiff’s bankruptcy case on several occasions.2
As held in the cases of Citizens Bank v. Strumpf, 37 F.3d 155 (4 th Cir. 1994), overruled on
other grounds 516 U.S. 16, 116 S. Ct. 286, 133 L. Ed. 2d 258 (1995) and In re Jones, Case No. 06-
00380-8-RDD (Bankr. E.D.N.C. June 27, 2007), willfulness does not refer to the intent to violate
the automatic stay, but the intent to commit the act which violates the automatic stay. 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.
The court is also concerned with the lack of a proper verification procedure within the
defendant’s course of business. The defendant is a multi-million dollar financial institution handling
smaller loans. 	Once the computer entry is made, there is no further check by the defendant
regarding the debtor’s bankruptcy status. 	The defendant has no computer software or other
procedure that would provide for a method of double-checking to ensure a computer entry was made
upon receipt of a bankruptcy notice. Also, prior to filing a small claims action and going to court
to pursue a judgment, the hard file of a debtor is not reviewed. Under Rule 11 of the North Carolina
Rules of Civil Procedure, which would have applied in the state court proceeding, a party who is not
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represented by an attorney shall sign all papers and by so signing is verifying the accuracy of the
information contained therein. In this case, the defendant did not engage in an appropriate review
of the file prior to filing the small claims action against the plaintiff. The defendant only reviewed
the information on the computer screen. The defendant needs to take immediate steps in order to
change its procedures to make sure this type of incident does not happen again.
Counsel for the defendant cites the Western District of North Carolina cases to support his
position that this case, like those, should simply be considered a clerical error, rather than a willful
violation of the automatic stay. In this case, the defendant received four separate notices of the
plaintiff’s bankruptcy. Each time a notice was received, someone had to review it and file it, each
time presenting another opportunity to ensure that the bankruptcy had been properly documented
in the computer file. Prior to filing the small claims action, the defendant’s employees had another
opportunity to review the paper file, where the bankruptcy notices were kept. Had they done the due
diligence of document review and preparation required prior to filing a civil action against someone,
the notices would have been seen and the action would not have been filed. The Western District
cases all involved computer errors, situations in which a letter or notice was automatically generated
by the computer of the creditor. In this case, there was an initial failure to log the bankruptcy in the
computer file, and was followed by four other failures to log the notices received into the computer
properly. This case also involved the intentional action of completing the small claims complaint
and having it filed with the clerk of court and served upon the plaintiff by a deputy sheriff at the
plaintiff’s home on Sunday afternoon. Because the defendant’s actions in this case resulted in the
filing of a lawsuit, rather than just a notice or collection letter sent to the plaintiff, it will remain on
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2Pursuant to the amendments made by the Bankruptcy Abuse Prevention and Consumer
Protection Act of 2005, 11 U.S.C. § 362(h) is now 11 U.S.C. 362(k).
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the public record forever. This is clearly a more egregious violation than a computer-generated
notice or collection letter.
Counsel for the defendant also argues that the plaintiff suffered no injury or damages. The
court disagrees. The plaintiff was exposed to the tension, anger, worry, and disruption caused by
the service of the complaint and summons upon him on a Sunday afternoon at his home by a Wayne
County Sheriff’s deputy. These emotions were exacerbated by the fact that the plaintiff knew the
action should not have been filed while he was under the protection of the Bankruptcy Code. The
next day, the debtor had to disclose that he was being sued to his employer’s dispatcher, not only
causing him embarrassment, but certainly putting his standard route in jeopardy and causing him
concern over the impact it could have on his future employment. Had the defendant had the proper
procedures in place to ensure that a violation of the automatic stay would not occur when it filed a
small claims action, all of this could have been avoided. Although difficult to quantify, as is the case
when considering damages for pain and suffering, the court finds that the plaintiff is entitled to
actual damages.
Finally, counsel for the defendant argues that plaintiff’s counsel should have contacted either
him or the defendant prior to the filing of this action. Counsel cites L.B.R. 9011-3(b), which states,
“When determining sanctions under 11 U.S.C. § 362(h), the court shall consider whether the moving
party notified the offending party and gave the party an opportunity to cure the alleged violation.”3
By the time the defendant dismissed the small claims complaint, damages to the plaintiff had already
occurred. 	What could the defendant have done at this point to cure the damages caused by the
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3The court notes that much of the plaintiff’s counsel’s time was spent at a deposition taken
by the defendant (2.2 hours); and in defending the motion for summary judgment filed by the
defendant (14.9 hours).
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willful violation of the automatic stay? Perhaps a letter of apology, or an agreement to revamp the
defendant’s internal office procedures for docketing and filing bankruptcy notices would have been
appropriate. 	There is no evidence that the defendant took any such actions or made such an
overture. However, it was the plaintiff’s counsel’s professional judgment decision to proceed with
the filing of the adversary proceeding in order to “equal the playing field” with the defendant, who
chose to file a small claims collection action against the plaintiff some five months after the
bankruptcy had been filed, after having received several notices from the bankruptcy court, after the
entry of the order of confirmation, and after the defendant’s filing of a proof of claim. 	The
professional judgment of the plaintiff’s counsel cannot be deemed per se unreasonable.
Based upon these findings of fact, the plaintiff has proved by a preponderance of the
evidence that a willful violation of the automatic stay was committed by the defendant and the
plaintiff is entitled to damages. Therefore, the court awards damages in the amount of $1,500.00
to the plaintiff. The plaintiff is also entitled to reasonable attorney fees. The court has reviewed an
affidavit submitted by plaintiff’s counsel, which indicates that he has completed 35.3 hours of work
in connection with this case.4 The court finds that a reasonable hourly rate to be applied to those
hours is $200.00. Therefore, plaintiff’s counsel is entitled to $7,060.00 in fees and $320.79 in costs.
A separate judgment will be entered.
SO ORDERED.
END OF DOCUMENT
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