ANN M. NEVINS, Bankruptcy Judge.
Having concluded the discharge injunction set forth in 11 U.S.C. § 524(a) was violated and that the movant incurred attorneys' fees as a result, the court now requires payment of a portion of the movant's attorneys' fees as a sanction.
On July 27, 2018, this Court entered an Order determining Dorothy DeJesus and Candace Scott (collectively, the "Respondents") violated the discharge injunction and the terms of Curtis J. Jackson, III's ("Debtor") confirmed Chapter 11 plan
The attorneys' fees requested totaled $10,700.00. After review of the Albano and Cesaroni Declaration and for the reasons that follow, I conclude sanctions of $6,725.88 in attorneys' fees shall be awarded to the Debtor for the violation of the discharge injunction.
A debtor may bring a claim for a violation of the discharge injunction in the form of an action for a sanction of civil contempt.
"After Taggart, if the court finds a "fair ground of doubt" about whether the [d]ischarge barred the [conduct], it cannot hold the creditor in contempt, and therefore cannot award damages or attorneys' fees to compensate the [d]ebtor — even for conduct that offends the discharge." In re DiStefano, 18-05001 (Bankr. W.D. Mich. Oct. 30, 2019). While Taggart concluded a party's subjective intent was not a factor to consider for a finding of civil contempt, it could be relevant in determining the appropriate damages. Taggart, 139 S. Ct. at 1802.
A court has discretion to tailor appropriate sanctions and may consider many factors, including "(1) the character and magnitude of the harm threatened by the continued contumacy, (2) the probable effectiveness of the sanction in bringing about compliance, and (3) the contemnor's financial resources and the consequent seriousness of the sanction's burden." In re Covelli, 550 B.R. 256, 270 (Bankr. S.D.N.Y. 2016) (internal citations omitted).
However, some courts have held that to award attorneys' fees, the movant must establish the respondent acted in bad faith or in a vexatious or oppressive manner. See In re Haemmerle, 529 B.R. 17, 26 (Bankr. E.D.N.Y. 2015) (awarding reasonable attorneys' fees after concluding creditor's 137 phone calls were not technical, unintended, or quickly remedied, but were in fact wanton and oppressive); In re Torres, 367 B.R. 478, 490 (Bankr. S.D.N.Y. 2007) (court explained the continued refusal to correct the information, with the intent to pressure the debtor into paying the discharged debt, "if proven at trial, would be sufficiently vexatious and oppressive to support at least a sanction in the amount of the plaintiffs' costs and expenses); In re Watkins, 240 B.R. 668, 678 (Bankr. E.D.N.Y. 1999) (court found bad faith sufficient to justify the awarding of attorneys' fees, where, after a creditor's debt was discharged, the creditor contacted the debtors and offered to make a new loan on the condition that the debtors repay the creditor's discharged debt). Ultimately, the burden rests on the court to craft an appropriate sanction balancing the importance of punishing willful violations of the discharge injunction, protecting the purposes of § 524(a)(2), and meanwhile preventing motions for contempt from becoming a profit-making endeavor by awarding attorneys fees carte blanche. See, In re Schmelcher, 11-61607, 2015 WL 639076, at *5 (Bankr. N.D.N.Y. Feb. 13, 2015); In re Frambes, No. 08-22398, 2012 Bankr.LEXIS 791, at *21 (Bankr.E.D.Ky. Feb. 7, 2012)).
Here, the Debtor's actual damages are his attorneys' fees. The failure to compensate the Debtor for the attorneys' fees incurred, where the Respondents' conduct is worthy of a contempt sanction, would not only permit the offending party to violate the discharge injunction with impunity, but would leave the Debtor worse off for his efforts to secure compliance with his rights under the Discharge Order.
Also impacting this court's consideration of damages is the fact the Respondents, despite requests from Debtor's counsel, did nothing to dismiss the State Court Appeals until the entry of the Discharge Violation Order. Respondent's counsel
Hence, Respondents' conduct does not reflect an unintended or technical violation of the Debtor's discharge, but rather a deliberate attempt to further pursue a discharged claim without actively assuring themselves that pursuit of the claims was permitted.
Turning to the attorneys' fees requested in this case, I find the rates charged by counsel — $325.00 for Attorney Cesaroni, $350.00 for Attorney Albano, and $500.00 for Attorney Berman — are reasonable and commensurate with those rates customarily charged in this District by those who possess similar skills, expertise, and reputation. "[A] Bankruptcy Court [is] entitled to exercise discretion in determining the reasonable amount of fees to award." In re Plumeri, 434 B.R. 315, 333 (S.D.N.Y. 2010) (discussing reasonableness of attorneys' fees in the context of an award for a violation of the automatic stay); See also, In re Nicholas, 496 B.R. 69, 73-74 (Bankr. E.D.N.Y. 2011) ("A court's principal concern when awarding attorneys' fees is to insure that the fees awarded are reasonable.").
While I find the hourly rates charged reasonable, I find some of the specific time spent unreasonable. In the Cesaroni Declaration, the amount of $97.50 incurred on January 25, 2018 regarding "the Scott and DeJesus distributions" appears to relate to the distribution paid to Respondents on account of their non-dischargeable claims and not to the State Court Appeals. ECF No. 904, p. 7. Thus, this amount will not be awarded. Additionally, there are entries on April 4 and 5, 2018 charging for what appears to be internal email communications between Attorney Cesaroni and Attorney Berman. ECF, 904, p. 7. I find it excessive to award the time incurred by each of the two attorneys in the same firm communicating, and I will reduce the request by $150.00 to account for such time. Accordingly, the attorneys' fees set forth in the Cesaroni Declaration will be reduced by $247.50, leaving a total of $8,457.50 requested by Zeisler & Zeisler, P.C.
In the Albano Declaration, there are three entries that will not be allowed. The first is one of the two entries on May 14, 2018 for 0.1 hours for review of an email from Attorney Cesaroni attaching a copy of the Motion for Sanctions as filed. ECF No. 905, p. 8-9. As these entries are duplicative, only one of them will be allowed. Secondly, the two entries on May 15, 2018 and on May 16, 2018 for reviewing and emailing a "Law 360 article regarding the Motion for Sanctions" will not be awarded. Review of articles about motions counsel filed or a case counsel is involved in is not appropriate as damages for a discharge violation. Accordingly, the attorneys' fees set forth in the Albano Declaration will be reduced by $105.00, leaving a total of $1,890.00 requested by Albano Law, LLC.
In addition to these minor reductions, I will reduce the attorneys' fees by thirty-five (35%) percent to account for what appears to be an excessive amount of time incurred drafting a routine motion for a discharge violation — 11.7 hours at least on a thirteen-page motion — and the significant amount of time spent on email communications among Debtor's own counsel. See, In re Nicholas, 496 B.R. 69, 76 (Bankr. E.D.N.Y. 2011) ("If a court determines some of the time claimed by a party should be excluded, it may also use a percentage `deduction as a practical means of trimming fat from a fee application.'") (citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2d Cir.1998).
As a sanction for the violation of 11 U.S.C. § 524, attorneys' fees of $6,725.88 are awarded to the Debtor as damages for a discharge injunction violation consisting of $5,447.96 payable to Zeisler & Zeisler, P.C. and $1,277.92 payable to Albano Law, LLC.
This is a final order subject to traditional rights of appeal, with a fourteen (14) day appeal period. See, Fed.R.Bankr.P. 8001, et seq., Fed.R.Bankr.P. 8002(a)(1); Ritzen Grp., Inc. v. Jackson Masonry, LLC, ___ U.S. ___, 205 L.Ed.2d 419, 2020 U.S. LEXIS 5262020, WL 201023 (U.S. Jan. 14, 2020).