ORDER GRANTING MOTION FOR SANCTIONS PURSUANT TO 11 U.S.C. § 362(k)

PAUL BAISIER, Bankruptcy Judge.

On October 28, 2016, the Debtor filed a Motion to Compel (Docket No. 10) (the "Motion to Compel") and a Motion for Sanctions Pursuant to 11 U.S.C. § 362(h) (Docket No. 11)(the "Motion for Sanctions"). The Debtor requested that the Motion to Compel be heard on an expedited basis. The Court granted the request for an expedited hearing on November 1, 2016, and scheduled a hearing on the Motion to Compel for November 3, 2016 (the "First Hearing"). The Court scheduled a hearing on the Motion for Sanctions for December 8, 2016 (the "Second Hearing"). On November 2, 2016, Grange Mutual Insurance Co., as subrogee of Peter Whitening ("Grange"), filed a response to the Motion to Compel and the Motion for Sanctions (Docket No. 17) (the "Grange Response").

At the First Hearing and Second Hearing, counsel for the Debtor appeared in support of the Motion to Compel and the Motion for Sanctions, counsel for Grange appeared in opposition to both, and counsel for the Chapter 13 Trustee appeared but did not express a position on either motion. After the Second Hearing, the Debtor filed Debtor's Supplemental Brief Supporting the Motion for Sanctions for Violation of the Automatic Stay (Docket No. 26) (the "Debtor's Brief"), and Grange filed Respondent's Supplemental Brief in Oppsition[sic] to Motion for Sanction [sic] for Violation of the Automatic Stay and Request for Attorneys[sic] Fees (Docket No. 27) ("Grange's Brief").

FACTS1

Grange was awarded a judgment against the Debtor in the State Court for Clayton County, Georgia, on February 1, 2016, for an automobile accident (the "Judgment"). The Debtor did not pay the Judgment. In March, 2016, Grange notified the State Court for Clayton County of such failure, and pursuant to O.C.G.A. § 40-9-60, the Debtor's driver's license (the "License") was suspended. The Debtor filed this case on October 14, 2016 (the "Petition Date").

After filing for bankruptcy, the Debtor went to the Georgia Department of Driver Services (the "DDS"), the state agency responsible for the administration of drivers' licenses, and requested the suspension of his License be lifted. The Debtor asserts that the DDS representative required a release from Grange in order to lift the suspension. The Debtor then requested that Grange provide a release (the "Release") that could be brought to the DDS as requested. Grange provided the Release to the Debtor on October 26, 2016.

Counsel for the Debtor personally brought the Release to the DDS, and was advised by the representative of the DDS that the Release was missing the date of the underlying accident, and without the date of the underlying accident on the Release, the suspension could still not be lifted. Upon informing Grange that the Release needed to be amended (an "Amended Release"), Grange responded that it had no affirmative duty to take any actions, and would not provide the Amended Release. Counsel for Grange confirmed at the First Hearing that Grange had refused to provide the Debtor with the Amended Release, restating that it was under no affirmative obligation to assist the Debtor is getting the License suspension lifted. Counsel for Grange asserted that Grange had provided the original Release merely as a courtesy, and that Grange had no authority to force the DDS to lift the suspension of the License. At the end of the First Hearing, the Court ordered Grange to provide the Debtor with the Amended Release (See Docket No. 21).

At the Second Hearing, counsel for the Debtor informed the Court that Grange had provided the Amended Release and the DDS had lifted the suspension of the License. However, although the suspension had been lifted, the Debtor argued that he had nevertheless incurred damages for the time in which it was suspended, including lost wages for not being able to drive to work, and for the attorneys' fees in preparing and prosecuting the Motion to Compel and the Motion for Sanctions. Grange again argued that it was under no affirmative duty to draft a release for the DDS, and cited to two cases in support, Frazier v. Georgia (In re Frazier), Bankr. Case No. 02-41136-LWD, Adversary Case No. 02-4133-LWD, 2003 WL 26098325, 2003 Bankr. LEXIS 1458 (Bankr. S.D.Ga. June 11, 2003) and In re Beckett, 455 B.R. 9 (Bankr. D.Mass 2011). At the Hearing, Grange admitted Frazier was not actually on point, but reiterated that Beckett provided authority to justify its lack of action and shield Grange from sanctions. For the reasons outlined below, this Court disagrees.

DISCUSSION

This Court has jurisdiction over this matter under 28 U.S.C. § 1334. Venue is proper in this Court under 28 U.S.C. § 1409. This matter is a core proceeding under 28 U.S.C. § 157(b)(2).

The automatic stay is imposed upon the filing of a bankruptcy case. 11 U.S.C. § 362(a). 11 U.S.C § 362(a) provides, in pertinent part:

11 U.S.C. § 362(a)(1)-(6). "[A]n 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(k). Beyond proving that there was a violation of the stay, willful, as used in 11 U.S.C. § 362(k), has two (2) prongs that must be satisfied: the creditor "(1) knew the automatic stay was invoked and (2) intended the actions which violated the stay." Jove Eng'g, Inc. v. I.R.S., 92 F.3d 1539, 1555 (11th Cir. 1996).

The debtor has to prove a willful stay violation by a preponderance of the evidence. Spinner v. Cash In A Hurry, LLC (In re Spinner), 398 B.R. 84, 94-95 (Bankr. N.D.Ga. 2008) (Diehl, J.). However, the Debtor need only prove that the creditor knew of the stay and intended the action, not that the creditor intended that the action would violate the stay. Jove Eng'g, Inc., 92 F.3d at 1555 (citing Price v. United States, 42 F.3d 1068, 1071 (7th Cir. 1994); Citizens Bank v. Strumpf, 37 F.3d 155, 159 (4th Cir. 1994), rev'd on other grounds, 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir. 1993); Budget Service Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292-93 (4th Cir. 1986)); Beckett, 455 B.R. at 14 (citing In re Rosa, 313 B.R. 1, 7 (Bankr. D. Mass. 2004). Once the debtor proves those elements, the burden shifts to the creditor to prove its action, or inaction, did not violate the stay. Jove Eng'g Inc., 92 F.3d at 1556 (citing Howard Johnson Co., Inc. v. Khimani, 892 F.2d 1512, 1516 (11th Cir. 1990); Emmert v. Taggart (In re Taggart), 548 B.R. 275, 286 (9th Cir. B.A.P. 2016); Gordon v. Hill (In re Wilson), 454 B.R. 546, 551 (Bankr. N.D.Ga. 2011) (Mullins, C.J.).

In this case, Grange has admitted that, at the time the Debtor requested the Amended Release, Grange was aware that the Debtor had filed for bankruptcy and that the automatic stay was in place. That satisfies the first prong of 11 U.S.C. § 362(k). Grange also admitted that it knowingly refused to provide the Amended Release, and as such, its action was intentional, as required by the second prong of 11 U.S.C. § 362(k). That leaves the question of whether Grange's action actually violated the stay and, if so, a determination of damages. If refusing to provide the Amended Release is an act that violates 11 U.S.C. § 362(a), then Grange willfully and intentionally violated the automatic stay and the Debtor is entitled to damages.

SUSPENSION OF THE LICENSE WAS AN ACT TO COLLECT A DEBT

Under Georgia law, if a judgment debtor fails to pay a judgment related to a motor vehicle accident, the judgment creditor can request that such debtor's driver's license be suspended until at least $25,000 of such judgment is paid. O.C.G.A. § 40-9-60 - 40-9-62.

O.C.G.A. § 40-9-60(a) provides

O.C.G.A. § 40-9-61 provides:

O.C.G.A. § 40-9-62 provides

As is evident from the text above, these statutes are not self-executing; a license suspension only occurs "upon the request of the judgment creditor." O.C.G.A. § 40-9-60(a) (emphasis added). Further, the judgment creditor appears to have the ability to request that a license be reinstated. O.C.G.A. § 40-9-61(b).

The first question at issue here is whether the foregoing statute is a collection device intending to benefit and be used by judgment creditors. There are cases within and outside of the Eleventh Circuit that address that question. In 1994, a Rhode Island bankruptcy court considered a Rhode Island statute similar to Georgia's that provides for suspension of a judgment debtor's driver's license upon non-payment of a judgment within a certain time. In re Duke, 167 B.R. 324, 325 (Bankr. D.R.I. 1994). Although the creditor argued in Duke that the suspension was an exercise of the state's regulatory or police power, the court found that the purpose of the related statute was to "assist in the recovery of claims by motor vehicle accident judgment creditors." Id. Because the statute was driven by the debtor's lack of payment to the creditor, and not by the health and safety concerns that are the purview of the state, that statute was effectively just a collection mechanism for the creditor. Id. at 325-26 (quoting Muzio v. Sampson (In re Sampson), 17 B.R. 528, 530-31 (Bankr. D.Conn. 1982). Although the opposing party in Duke was the state agency itself, and not the underlying creditor, the case is relevant here because it holds that a state statute similar to Georgia's is really a collection mechanism for the underlying creditor.

Recently, in this District, Judge W. Homer Drake entered a similar order in Stephens v. State Farm Ins. Co., Case No. 16-10775-WHD, Docket No. 16, 2016 Bankr. LEXIS 3061, 2016 WL 4411280 (Bankr. N.D.Ga. July 18, 2016) (Drake, J.). Stephens involved an Arizona statute that is also similar to the Georgia statute at issue here. In a one-page order, Judge Drake cited to Duke and found that the suspension of the debtor's driver's license by operation of the Arizona statute was an attempt to collect on a debt by the creditor and ordered the state agency to reinstate the license. Id.2 Like Duke, Stephens confirms that statutory schemes like those in Rhode Island, Arizona and Georgia that suspend a driver's license until a judgment is paid are collection tools available to certain judgment creditors.

In this case, this Court finds that O.C.G.A. § 40-9-60 et seq. is a mechanism for a judgment creditor to use to collect upon its debt. The driver's licenses of judgment debtors are not automatically suspended upon failure to timely pay every judgment related to a motor-vehicle accident. Such suspensions only occur upon notification of the court by the judgment creditor. The judgment creditor has to take an affirmative action to notify the applicable state court that the judgment has not been paid, and only then does the law operate to suspend the license of the judgment debtor. Further, O.C.G.A § 40-9-61(b) specifically provides that, even in the face of the default, if the judgment creditor consents, the license suspension can be lifted. This statutory scheme does not appear to be intended to preserve the health and safety of the residents of the State of Georgia; it seems instead to be intended to assist judgment creditors in collecting their judgments. Therefore, like the statutes in Duke and Stephens, this Court finds that O.C.G.A. § 40-9-60 et seq. is really a collection mechanism available to certain motor-vehicle-accident judgment creditors, and therefore the continued employment of this collection mechanism after bankruptcy is prohibited by 11 U.S.C. § 362(a). That still leaves the question, however, of whether Grange's failure to provide the postpetition Amended Release is a violation of the stay.

GRANGE HAD AN AFFIRMATIVE DUTY TO PROVIDE THE AMENDED RELEASE

Whether failing to provide a release or consent to the lifting of the suspension of a drivers' license is a violation of the automatic stay appears to be a question of first impression in the Eleventh Circuit. However, this Court finds cases related to garnishments and automobile repossessions to be analogous, and an Eleventh Circuit case to be instructive.

Garnishment

A garnishment is analogous because, in the absence of affirmative action by the collecting creditor, the garnishment proceeding will continue to the detriment of the debtor — just like a license suspension will continue to plague a debtor until it is lifted. Courts generally hold that garnishments that continue postpetition are acts to collect a debt on behalf of the creditor, regardless of whether the creditor takes any affirmative actions postpetition. See, e.g., Russell v. Caffey (In re Caffey), 384 F. App'x 882, 886-87 (11th Cir. 2010) (citing Lawrence Ath. Club v. Scroggin (In re Scroggin), 364 B.R. 772, 781 (10th Cir. B.A.P. 2007) (ongoing garnishment was a violation of the automatic stay)); Zestee Foods, Inc. v. Phillips Foods Corp., 536 F.2d 334 (10th Cir. 1976); Roche, 361 B.R. at 621.3

Failure to dismiss or stay a pending garnishment violates several subsections of 11 U.S.C. § 362(a). One such subsection stays the enforcement and collection on judgments. 11 U.S.C. § 362(a)(2); 3 COLLIERS ON BANKRUPTCY ¶ 362.03[4] (citing Delpit v. Comm'r, 18 F.3d 769 (9th Cir. 1994)); Roche, 361 B.R. at 621; In re See, 301 B.R. 549, 552-53 (Bankr. N.D. Iowa 2003); Briskey, 258 B.R. 473; Lord v. Carragher (In re Lord), 270 B.R. 787, 795 (Bankr. M.D.Ga. 1998). A second prohibits continuations of judicial proceedings. 11 U.S.C. § 362(a)(1); Roche, 361 B.R. at 621. A garnishment falls into both of these categories because it is an attempt to collect on a judgment through the institution of a separate judicial proceeding. Roche, 361 B.R. at 621.

Once the debtor notifies a creditor that a bankruptcy case has been filed and the automatic stay has been imposed, the debtor is not required to take any more actions to prevent collection efforts; instead, the burden shifts to the creditor to cease any efforts to collect upon its debts or levy upon property of the estate, and in situations like the repossession of property, that property must be returned to the debtor promptly. 11 U.S.C. § 542; Roche, 361 B.R. at 621; Rutherford v. Auto Cash, Inc. (In re Rutherford), 329 B.R. 886, 892 (Bankr. N.D.Ga. 2005)(Drake, J.).

Roche, 361 B.R. at 621 (quoting In re McCall-Pruitt, 281 B.R. 910, 912 (Bankr.E.D.Mich.2002) (quoting Ledford v. Tiedge (In re Sams), 106 B.R. 485, 490 (Bankr.S.D.Ohio.1989))); Elder v. City of Thomasville, GA (In re Elder), 12 B.R. 491, 494 (Bankr. M.D.Ga. 1981) ("No action is unacceptable; no action is action to thwart the effectiveness of the automatic stay."); accord Bank of Am., N.A. v. Johnson (In re Johnson), 479 B.R. 159, 171 n. 56 (Bankr. N.D.Ga. 2012) (holding that prepetition garnished funds may not need to be released, but anything garnished postpetition certainly must). Although judgment creditors have rights to, or interests in, property of the estate, such creditors can only act to collect upon those interests after seeking relief from the automatic stay. Roche, 361 B.R. at 621-22 (citing Citizens Bank v. Strumpf, 516 U.S. 16, 116 S.Ct. 286, 133 L.Ed.2d 258 (1995); Rutherford, 329 B.R. at 892). Until such relief is actively sought, a creditor cannot refrain from action if such inaction causes a violation of the stay. Roche, 361 B.R at 621-22 ("[T]he creditor cannot sit back on its hands when its failure to act results in a stay violation.").4 Like the judgment creditor benefitting from a license suspension, the garnishing creditor cannot rely on the status quo to put pressure on the debtor to pay; instead, the creditor must act to relieve the pressure.

Car Repossession

A license suspension is also similar in some ways to the repossession of a car prepetition. See Id. at 622 (comparing a garnishment to repossession of a car). Upon a filing of bankruptcy, a creditor that has repossessed a car must either return the car to the debtor or move for relief from the stay for continued possession. Rutherford, 329 B.R. at 892; see also Weber v. SEFCU (In re Weber), 719 F.3d 72, 81 (2d Cir. 2013); Thompson v. Gen. Motors Acceptance Corp., 566 F.3d 699, 703 (7th Cir. 2009); CA Emp't Dev. Dep't v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1151 (9th Cir. 1996); Knaus v. Concordia Lumber Co. (In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989); Unified Peopl's Fed. Credit Union v. Yates (In re Yates), 332 B.R. 1, 4 (B.A.P. 10th Cir. 2005). But see WD Equipment, LLC v. Cowen (In re Cowen), ___ F.3d ___, 2017 WL 745596, 2017 U.S.App.LEXIS 3486, Case No. 15-1413, at *4-6 (10th Cir. Feb. 27, 2017) (holding that violation of the stay requires an actual act, and passive inaction by a creditor does not violate 11 U.S.C. § 362, though still may be sanctionable under 11 U.S.C. § 105); United States v. Inslaw, 932 F.2d 1467, 1474 (D.C. Cir. 1991). If the creditor wants to retain possession, the burden is on the creditor to move for relief and prove that its interests outweigh the debtor's and the estate's. Rutherford, 329 B.R. at 892-93. Congress has specified the exceptions to the automatic stay, and if not specifically enumerated, the automatic stay applies. Id. at 893 ("If Congress had intended to permit secured creditors to withhold property of the estate until the bankruptcy court made a determination of adequate protection and ordered turnover, Congress could have provided a specific exception within section 362 for such actions."). Like the judgment creditor benefitting from a license suspension and a garnishing creditor, the car creditor cannot rely on the status quo to put pressure on the debtor to pay; instead, the creditor must act to relieve the pressure.

Russell v. Caffey

The obligations of a garnishing creditor and a repossessing car creditor are similar to the obligation imposed on the holder of a domestic support obligation by the Eleventh Circuit in Caffey, 384 F. App'x at 886-87. In Caffey, a domestic support obligation creditor had filed for and had a hearing on the debtor's contempt in failure to pay its domestic support obligation. Caffey, 384 F. App'x at 884. The state court orally found the debtor in contempt at the hearing, but before the court's ruling could be reduced to writing and a writ of arrest issued, the debtor filed for bankruptcy. Id. Unware of the bankruptcy filing, the state court entered the order and issued the writ. Id. Although the creditor argued that its involvement ended when it filed the motion for contempt, and the postpetition order and writ, and subsequent arrest, were state action over which it had no control, this was still a violation of the automatic stay. Id. at 886-87. The creditor had initiated the action and therefore had an obligation to make a good faith effort to stop it upon the filing of the bankruptcy case, and certainly could not oppose it. Id. (citing 11 U.S.C. § 362(a)(1); Scroggin, 364 B.R. at 781 (garnishing creditor had affirmative obligation); Johnston v. Parker (In re Johnston), 321 B.R. 262, 282-86 (D. Ariz. 2005) (creditor had affirmative obligation to move to vacate related state court orders)); 2 COLLIER ON BANKRUPTCY ¶ 362.03[4] (Alan N. Resnick & Henry J. Sommer, 3d ed. 2009)). Notice of the bankruptcy and failure to vacate the contempt and arrest orders constituted violation of the stay. Caffey, 384 F. App'x at 887.5

Based on the law in the areas of garnishment and automobile repossession, and the holding in Caffey, this Court believes that it is clear that when a creditor is engaged in a collection activity (like the utilization of a statutory suspension of a Georgia driver's license suspension) at the time a debtor files for bankruptcy, the creditor has a clear obligation in this Circuit to take steps to cause that collection activity to cease.

Beckett

As noted above, Grange cites to In re Beckett, 455 B.R. 9 (Bankr. D.Mass 2011) as the "color of authority" that would justify its failure to provide the Amended Release. This Court finds Beckett to be directly contrary to Caffey as well as to precedent in this Circuit in garnishment and automobile repossession cases. Further, to the extent that Beckett could be harmonized with those authorities, this Court finds Beckett to be distinguishable.

Beckett does involve a statute similar to Georgia's that allows a state agency to suspend a judgment debtor's driver's license for failure to pay a judgment arising out of motor-vehicle accident. Beckett, 455 B.R. at 11. Unlike Duke and Stephens, the court in Beckett directly addresses whether a judgment creditor has an affirmative duty to act to relieve such a suspension, finding that it does not. Id. at 13-16. However, Beckett is distinguishable in a number of ways. Those include:

Based on the foregoing material differences, this Court does not believe that any reliance that Grange may have placed on Beckett, to the extent it is relevant to this analysis, was reasonable. This leaves only the final question — the determination of damages.

DAMAGES

Section 362(k) provides that a debtor is entitled to actual damages and attorneys' fees for a willful violation of the automatic stay, and is possibly entitled to punitive damages as well. 11 U.S.C. § 362(k). The burden is on the Debtor to prove the damages it is seeking. Roche, 361 B.R. at 624. Counsel for the Debtor stated at the First and Second Hearing that the Debtor is not seeking punitive damages, so the Court will not consider them.

"Actual damages are real, substantial and just damages, or the amount awarded to a complainant in compensation for his actual and real loss or injury, as opposed to nominal damages and punitive damages." Id. (citing McMillan v. F.D.I.C., 81 F.3d 1041, 1054 (quoting BLACK'S LAW DICTIONARY (6th ed. 1991))) (internal quotation marks omitted). If actual damages are de minimis, the court can limit damages to attorneys' fees. Roche, 361 B.R. at 624 (citing Clement v. Burrell (In re Burrell), Case No. 97-38500-T, 1998 Bankr. LEXIS 867, 1998 WL 411287, at *6 (Bankr. E.D.Va. 1998)). As to actual damages and attorneys' fees, the Debtor alleged at the Second Hearing that, due to the failure to reinstate the License, the Debtor has been unable to work for a period of three (3) weeks since the Petition Date, and therefore is entitled to damages in the form of lost earnings. However, the burden on establishing damages lies with the Debtor. Here, in the Motion to Compel, the Debtor did not provide any particular amount of lost income due to the postpetition suspension of the License. At the Hearing, counsel for the Debtor alleged that there were twenty-one (21) days of missed work for a total of six hundred dollars ($600) of lost wages. However, the Debtor did not testify about any lost wages. Further, the Court is skeptical of the claims of the Debtor as to actual damages, due primarily to the length of the prepetition suspension of the License and the lack of any indication that the Debtor has been completely unable to work since the License was suspended.11 The Court also considers relevant the fact that some portion of the postpetition suspension period was consumed with Grange's cooperation with the Debtor in providing the Release, a period during which Grange was not violating the stay and thus damages would not accrue. In sum, the Debtor has not adequately proved his loss of income damages, and that relief is denied.

In addition to seeking damages for loss of income, the Debtor also requested attorneys' fees that he incurred in drafting and prosecuting the Motion to Compel and the Motion for Sanctions. Attached to the Motion for Sanctions is an itemized breakdown of the time spent on these matters. The attached Exhibit F shows that counsel for the Debtor bills at a rate of $250 per hour (a rate that is at or below the market rate in this District for counsel with the experience of Debtor's counsel) and that she expended a total of five (5) hours of work in relation to the Motion to Compel and the Motion for Sanctions, and is therefore entitled to one thousand two hundred fifty dollars ($1,250.00). Grange did not dispute the time or work performed, nor did Grange assert that counsel for the Debtor's rate was unreasonable. Therefore, the Court finds that the Debtor is entitled to one thousand two hundred fifty dollars ($1,250) in attorneys' fees. Grange shall pay that sum to counsel for the Debtor within ten (10) days of the entry of this Order.

Accordingly, in light of the foregoing, it is

ORDERED that the Motion for Sanctions is GRANTED; and it is further

ORDERED that the Debtor is awarded one thousand two hundred fifty dollars ($1,250) in damages, to be paid in immediately available good funds to counsel for the Debtor within ten (10) days of the entry of this Order.

The Clerk is directed to serve this Order and Notice upon the Debtor, Debtor's Counsel, Respondent, Respondent's Counsel, the Chapter 13 Trustee, and the United States Trustee.

IT IS ORDERED.