by The Ninth Circuit Court of Appeals has granted America’s Servicing Company’s petition for rehearing en banc in In re Schwartz-Tallard, No. 12-60052 (Petition granted, Dec. 19, 2014). The case arose out of the debtor’s motion for attorney fees relating to ASC’s appeal of a finding that it had violated the automatic stay. The Ninth Circuit found that the debtor’s attorney fees were actual damages under section 362(k)(1). In re Schwartz-Tallard, 765 F.3d 1096 (9th Cir. August 29, 2014), aff’g, In re Schwartz-Tallard, 473 B.R. 340 (B.A.P. 9th Cir. 2012). The court distinguished Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010), which held that a debtor’s attorneys’ fees for work on an adversary proceeding seeking damages for a stay violation were not actual damages and thus were not recoverable under 11 U.S.C. § 362(k)(1). In this case, ASC’s appeal challenged both the fee award and the substantive stay violation ruling, therefore, the debtor’s fees were incurred in defending both the damage award and the finding of stay violation.
Oral argument is scheduled for the week of March 16, 2015, though debtor’s counsel has asked for a new date.