Automatic Stay

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Sternberg Does Not Preclude Attorney Fee Award

Where the creditor had not returned garnished funds at the time of the hearing for damages for the stay violation, the debtor was entitled to recovery of attorney fees incurred in connection with that hearing. In re Eeds, No. 14-61005 (Bankr. Mont. March 16, 2015). [Read more…] about Sternberg Does Not Preclude Attorney Fee Award

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American Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir.)

Type: Amicus
Date: January 23, 2015
Description: Whether a debtor can obtain an award of attorney fees under section 362(k) for prosecuting stay violation. Seeking to overturn Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010).
Result: Judgment affirmed, August 29, 2015, Petition for rehearing filed September 12, 2014; En banc decision affirming judgment of BAP and overturning Sternberg.

Schwartz-Tallard opinion

Schwartz-tallard NACBA 9th Jan 2015

Schwartz Tallard 9th Cir En banc opinion

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NACBA Weighs in on Sternberg Issue

The NACBA membership has filed an amicus brief in the Ninth Circuit case of America’s Servicing Co. v. Schwartz-Tallard (In re Schwartz-Tallard), No. 12-60052 (filed Jan. 23, 2015). The brief seeks reconsideration of that court’s 2010 decision in Sternberg v. Johnston, 595 F.3d 937 which limited the right to recover attorney fees to those incurred in the effort to terminate a stay violation, but not to the fees incurred prosecuting section 362(k) damage claims. [Read more…] about NACBA Weighs in on Sternberg Issue

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Court Removes Wells Fargo’s Brass Knuckles

Like a ray of sunshine through a storm of obfuscation and false compliance, the Bankruptcy Court for the Southern District of New York found that Wells Fargo’s administrative freeze on bankruptcy debtors’ accounts violates the automatic stay, and debtors injured by the violation have standing to seek damages. In re Weidenbenner, No. 14-35443, 2014 Bankr. LEXIS 5009 (Bankr. S.D. N.Y. Dec. 12, 2014). [Read more…] about Court Removes Wells Fargo’s Brass Knuckles

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Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA

Two cases out of the Western District of Louisiana found that Attorney Glay H. Collier’s fee collection practices violated Sections 526, 528, 362, and 524 of the Bankruptcy Code. Wheeler v. Collier (In re Wheeler), No 11-1670 (W.D. La. May 22, 2014) and (July 17, 2014), and Patrick v. Collier (In re Patrick), No. 14-11203 (Bankr. W.D. La. July 23, 2014). [Read more…] about Attorney’s “No Money Down” Fee Collection Practice Violates BAPCPA

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Eviction Is Violation of Stay even after Pre-Petition Foreclosure Sale

A debtor’s possessory interest in property sold through foreclosure is sufficient to support a cause of action for violation of the automatic stay, even though that interest may have been insufficient to withstand a motion for relief from stay. Eden Place v. Perl (In re Perl), No. 13-1328 (B.A.P. 9th Cir. May 30, 2014). [Read more…] about Eviction Is Violation of Stay even after Pre-Petition Foreclosure Sale

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Ninth Circuit Permits Award of Appeal Fees

The Ninth Circuit has cracked open a door that Sternberg seemed to have slammed shut by holding that a debtor is not precluded from recovering, as damages, attorneys’ fees for defending against a creditor’s appeal of a finding that the creditor violated the automatic stay. America’s Servicing Co. v. Schwartz-Tallard, No. 12-60052 (9th Cir. Apr. 16, 2014). [Read more…] about Ninth Circuit Permits Award of Appeal Fees