MEMORANDUM OF DECISION AND ORDER RE: MOTION FOR SUMMARY JUDGMENT

JOHN P. GUSTAFSON, Bankruptcy Judge.

This Adversary Proceeding comes before the court on Defendants Stefanik & Christie, LLC and John R. Christie's ("Defendants") Motion for Summary Judgment ("Motion"). [Adv. Doc. #20]. Plaintiff-Debtor Frank Ragone, Jr. filed a Response ("Response") [Adv. Doc. #25], and with permission from the court [Adv. Doc. #30] Defendants filed a Reply Brief ("Reply"). [Adv. Doc. 27].

In their Motion, Defendants seek summary judgment on Plaintiff-Debtor's automatic stay/discharge injunction violation claims, arguing that: 1) Defendants lacked notice of Plaintiff-Debtor's bankruptcy case; 2) that if a violation occurred, Defendants did not act willfully; and 3) that Plaintiff-Debtor cannot meet his evidentiary burden. [Adv. Doc. #20, pp. 4-6]. In his Response, Plaintiff-Debtor argues that summary judgment is inappropriate because genuine issues of material fact regarding Defendants' garnishment actions remain disputed. [Adv. Doc. #25, p. 8]. A Reply Brief [Adv. Doc. #27-1] was filed as an exhibit to Defendants' Motion to File Reply Brief Instanter. [Adv. Doc. #27]. Subsequently, the court entered an Order granting Defendants' motion to file their Reply Brief instanter. [Adv. Doc. #30].

The above captioned Adversary Proceeding was transferred to this court on September 20, 2018 [Adv. Doc. #12], and the case number was changed from 18-05009-amk to 18-03070-jpg. The court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§1334, 157(a), and General Order 2012-7 of the United States District Court for the Northern District of Ohio. Actions to determine whether violations of the automatic stay and/or the discharge injunction have occurred are core proceedings that this Court may hear and determine. 28 U.S.C. §157(b)(1) and (b)(2)(A), (b)(2)(O).

Because Plaintiff-Debtor's claims turn on genuine issues of material fact that remain disputed, Defendant's Motion for Summary Judgment will be denied.

FACTUAL BACKGROUND

On summary judgment the types of evidence the court may consider are governed, in part, by Federal Rule of Civil Procedure 56(c)(1)(A)-(B)1, which states:

Federal Rule of Civil Procedure 56(c)(3) further states that: "The court need consider only the cited materials, but may consider other materials in the record."

Plaintiff Frank R. Ragone, Jr. ("Plaintiff" or "Ragone") filed Chapter 7 bankruptcy on May 8, 2013 in Akron, Ohio. See, [Case No. 13-51335, Doc. #12; Adv. Case. No. 18-03070, Doc. 25-1, Ex. A & Adv. Doc. 27-1, p. 2.].

At the time of filing, Ragone appears to have owed monies to Pizza Pan Elyria, LLC ("Pizza Pan") and/or Jeffrey A. Boring ("Boring"). [Adv. Doc. #1, p. 4, ¶11; Adv. Doc. #6, p. 2, ¶6; Doc. 27-1, p. 2; Case 13-51335, Claims Register, Claims ##1-1 & 2-1]. These obligations were listed in Ragone's Chapter 7 on Schedule F. [Doc. #1, p. 16; Adv. Doc. #1, p. 4, ¶13].

The Matrix attached to Ragone's Petition reflects that Pizza Pan Elyria, LLC was listed as having an address of "360 Cleveland Street, Elyria, OH 44035". [Doc. #1, p. 38]. Jeffery A. Boring's address was listed in the Matrix as: "Jeffery A. Boring, c/o Anthony Calabrese, III, 2450A One Cleveland Center, 1375 9th Street, Cleveland, OH 44114". Id.

The docket in Case 13-51335 reflects that the following notices were mailed, by the Bankruptcy Noticing Center, to Pizza Pan, and to Jeffery A. Boring, c/o Anthony Calabrese:

Ragone's Chapter 7 case was initially closed without a discharge on February 5, 2014, for failure to "timely file a Financial Management Course Certification (Form 23)". [Doc. #26].

An "Order and Notice of Garnishment" was filed by John R. Christie in Cleveland Municipal Court on June 6, 2014. [Adv. Doc. #25-1, Ex. E, p. 36]. Although it appears there were prior garnishments issued on the judgment against Ragone [Id., Ex. F, pp. 27-32], Exhibit E reflects that the garnishee was Mars Electric, which appears to have been Ragone's employer. [Id., Ex. E, p. 36].

From the docket in the Main Case, it appears that on June 19, 2014, Ragone's attorney filed what is docketed as "First Motion to Reopen Chapter 7 Case". [Doc. #28]. However, all that was included was a Certificate of Debtor Education, with no actual "Motion". Id. An Amended Motion to Reopen Chapter 7 Case was filed at Doc. #29. The Certificate of Credit Counseling was filed separately (again) at Doc. #30.

A second Amended Motion to Reopen Chapter Seven Case was filed on August 22, 2014. [Doc. #31]. For reasons unknown, the Order Granting Motion to Reopen Case was not entered until June 17, 2015. [Doc. #32]. The Order of Discharge was subsequently entered on June 18, 2015 [Doc. #33], with notice going out from the Bankruptcy Noticing Center as described above.

On May 20, 2016, a "Motion to Reopen Chapter 7 Case and Revoke Discharge" was filed on behalf of "judgment creditor, Stefanik & Christie". [Doc. #37]. The docket entry for Doc. #37 reflects, in part: "Motion to Reopen Chapter 7 Case. Fee Amount $260 Filed by Creditor Pizza Pan Elyria LLC". A Notice of Filing Deficiency reflected the need for a Certificate of Service. [Doc. #38]. On May 20, 2016, an Amended Motion, captioned "Motion to Reopen Chapter 7 Case and Revoke Discharge" was filed, with a Certificate of Service. [Doc. #39]. The docket entry for Doc. #39 reflects, in part: "Amended Motion to Reopen Filed by Creditor Pizza Pan Elyria LLC".

In both Motions to Reopen filed on behalf of "judgment creditor, Stefanik & Christie, LLC", the signature line reflected: "John R. Christie (bar number), Stefanik & Christie, LLC, 1375 East 9th Street, Suite 2450, Cleveland, Ohio 44114". [Docs. #37, p. 1; #39, p. 1]. A number of documents were attached to the Motions to Reopen, but no affidavits or other sworn statements were provided, nor were any of the attached documents certified. Notably, one of the documents attached to both Motions appears to be captioned as Cognovit Answer, filed on behalf of Jeffrey A. Boring. [Doc. 37-1, p. 16; Doc. 39-1, p. 16]. The signature line of the Cognovit Answer indicates that it was signed by John R. Christie as attorney for Defendant Boring. Id. The file stamp appears to reflect a filing date in January of 2013. Id. What appears to be the associated Cognovit Complaint, filed on behalf of "Plaintiff, The Calabrese Law Firm, LLC", more clearly shows what appears to be a file stamp date of January 9, 2013. [Doc. 37-1, Ex. B, p. 14; Doc. 39-1, Ex. B, p. 14].

The Clams Register reflects that on May 31, 2013, two identical (duplicate) claims were filed on behalf of Pizza Pan by Anthony O. Calabrese, Esq. [Case No. 13-51335, Claims 1-1 and 2-1]. The amount claimed, in each proof of claim, was $28,300. [Id.] The basis for the claim was listed as "Judgment". [Id.] The Certificate of Service reflects it was served upon Ragone's bankruptcy attorney at the time, Rebecca A. Clark. [Id., at p. 4].

The docket does not reflect that any objection was filed to the duplicate claim. The claims register does not reflect that either claim was withdrawn. The Trustee's Final Report, filed November 19, 2013, reflects that that claim 2-1 is a "duplicate", and it is listed at "$0.00". [Doc. #21, p. 5 ("REVIEWED CLAIM. DUPLICATE OF CLAIM NO. 1.")]. The Trustee's Final Report also indicates that "PIZZA PAN ELYRIA, LLC" was to receive a proposed payment of "736.76". [Doc. #21, p. 7]. Similarly, the document referred to on the docket as "Zero Bank Statement/Final Account", also known as "UST Form 101-7-TDR", reflects that Pizza Pan Elyria, LLC was paid "736.76" on Claim 1-1. [Doc. #25, p. 4].

The following evidence was submitted by Defendants in support of their Motion for Summary Judgment:

In Defendants Answer, only the following two paragraphs were admitted3 pursuant to Federal Rule of Civil Procedure 8(b), made applicable by Federal Rule of Bankruptcy Procedure 7008:

[Adv. Case No. 18-03070, Doc. #1, p. 4; Doc. #6, p. 2, ¶5].

The Motion also includes an Affidavit of John R. Christie, which states in pertinent part:

[Doc. #20, pp. 8-9].

Plaintiff's Response Brief includes the Affidavit of Robert C. Wentz, attached as Exhibit I, which states that Mr. Wentz is "an attorney duly licensed to practice law in the State of Ohio at all relevant times." [Doc. #25-1, p. 47, ¶1].

The Wentz Affidavit further states:

[Doc. #25-1, Ex. I, pp. 47-48].

The cover letter described in paragraph 6 of the Wentz Affidavit is attached as Exhibit A to that document. [Doc. #25-1, p. 49].

In addition to the Affidavit of Robert C. Wentz, Exhibits A through H were also attached to Plaintiff's Response:

[Doc. #25-1, Ex. A-H, pp. 1-46].

Neither party objected to the exhibits offered by the opposing party under Federal Rule of Civil Procedure 56(c)(2). See generally, In re LTC Holdings, Inc., 596 B.R. 797, 802 n. 14 (Bankr. D. Del. 2019)(discussing the 2010 amendments to Rule 56 streamlining the summary judgment process).

There are additional documents, not included as exhibits to the Response, that are attached to Defendants' Amended Motion to Reopen Bankruptcy and Revoke Discharge. [Case No. 13-51335, Doc. #39-1, p. 36]. However, neither party made any specific reference to those additional documents in their pleadings. Thus, Federal Rule of Civil Procedure 56(c)(3) permits, but does not require, the court to consider those documents filed in the underlying Chapter 7 case.

It should be noted that statements made in briefs are not facts that the court can consider in deciding a motion for summary judgment. Duha v. Agrium, Inc., 448 F.3d 867, 879 (6th Cir. 2006)("It is well established that statements appearing in a party's brief are not evidence."); Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)("mere conclusions and unsupported factual allegations are legally insufficient" on summary judgment); Campania Management Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir. 2002)("it is universally known that statements of attorneys are not evidence"); Versarge v. Township of Clinton N.J., 984 F.2d 1359, 1370 (3rd Cir. 1993)("we have repeatedly held that unsubstantiated arguments made in briefs or at oral argument are not evidence to be considered by this Court"); Estrella v. Bryant, 682 F.2d 814, 819 (9th Cir. 1982)("Legal memoranda and oral argument are not evidence"); Simmons v. Rogers, No. 2017 WL 1179376 at * 1, 2017 U.S. Dist. LEXIS 47185 at *3 (W.D. Mich. Mar. 30, 2017)(quoting Duha); Ward v. J.C. Penney Co., Inc., 2015 WL 3971194 at **3-4, 2015 U.S. Dist. LEXIS 84649 at **10-12 (W.D. Tenn. June 30, 2015); Pawlaczyk v. Besser Credit Union, 2015 WL 4208649 at *10, 2015 U.S. Dist. LEXIS 90591 at *26 (E.D. Mich. April 13, 2015)("Consequently, `[i]t is well established that statements appearing in a party's brief are not evidence.'"); Sideridraulic System SpA v. Briese Schiffahrts GmbH & Co. KG, 2011 WL 3204521 at *2, 2011 U.S. Dist. LEXIS 82559 at *8 (S.D. Ala. July 26, 2011)("A party's mere say-so, which is all movants provided in support of the vast majority of the `facts' tendered, is simply not good enough to establish a right to summary judgment."); McIntosh v. Carter, 578 F.Supp. 96, 99 (W.D. Ky. 1983)("Statements made in the Commonwealth's briefs are not evidence."); In re Fabrizio, 369 B.R. 238, 246-247 (Bankr. W.D. Pa. 2007)("in deciding summary judgment motions, unsubstantiated arguments made in briefs or at oral argument do not constitute evidence for purposes of consideration"); Westport Taxi Service, Inc. v. Westport Transit District (In re Westport Transit District), 141 B.R. 543, 545 (Bankr. D. Conn. 1992)(facts set forth solely in memorandum of law do not constitute part of record on which findings of fact can be based); In re Carter, 74 B.R. 613, 615 n. 3 (Bankr. E.D. Pa. 1987)(factual assertions set forth in legal memoranda are not in evidence and cannot be considered). Accordingly, statements from the briefs that lack record support do not appear in the "Factual Background" section because they are not evidence the court can properly consider as supporting the Motion for Summary Judgment.

LAW AND ANALYSIS

1. Summary Judgment Standard.

Under Rule 56 of the Federal Rules of Civil Procedure, made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056, summary judgment is proper only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In reviewing a motion for summary judgment, however, all inferences "must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-88, 106 S.Ct. 1348, 1355-57, 89 L.Ed.2d 538 (1986). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn" in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment always bears the initial responsibility of informing the court of the basis for its motion, "and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The moving party can discharge its initial burden of proof by either coming forward with evidence showing the absence of a genuine issue of material fact, or by showing that there is no such issue by pointing out to the court that there is an absence of evidence to support the non-moving party's case. Id. at 325, 106 S.Ct. at 2554.

Where the moving party has met its initial burden, the adverse party "may not rest upon the mere allegations or denials of his pleading but ... must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. A genuine issue for trial exists if the evidence is such that a reasonable factfinder could find in favor of the nonmoving party. Id. "The non-moving party, however, must provide more than mere allegations or denials ... without giving any significant probative evidence to support" its position. Berryman v. Rieger, 150 F.3d 561, 566 (6th Cir. 1998).

Anderson clearly states that the allocation of the substantive evidentiary standard of proof is a factor that the court should consider in deciding whether to grant summary judgment. 477 U.S. at 252-255, 106 S.Ct. at 2512-2514.

2. The Automatic Stay.

In describing the scope of the automatic stay, the Sixth Circuit Court of Appeals has held:

In re Smith, 876 F.2d 524, 525-526 (6th Cir. 1989); see also, Easley v. Pettibone Michigan Corp., 990 F.2d 905, 911 (6th Cir. 1993)("... actions taken in violation of the stay are invalid and voidable and shall be voided absent limited equitable circumstances.").

As a general rule, the filing of a bankruptcy petition operates to stay, among other things, the continuation of a judicial proceeding against the debtor that was commenced before the petition. See, 11 U.S.C. § 362(a)(1); Dominic's Restaurant of Dayton, Inc. v. Mantia, 683 F.3d 757, 760 (6th Cir. 2012).

With regards to parties responsible for enforcing the automatic stay in the context of collection proceedings, a recent decision by the Sixth Circuit Bankruptcy Appellate Panel stated:

In re Wohleber, 596 B.R. 554, 572 (6th Cir. BAP 2019); see also, In re Humbert, 2016 WL 450186 at *3, 2016 Bankr. LEXIS 3148 at *10 (Bankr. N.D. Ohio Aug. 26, 2016)("When a creditor violates the automatic stay by taking postpetition collection actions, even without knowledge of the bankruptcy proceeding, there is an affirmative duty to restore the status quo."); In re Witham, 579 B.R. 787, 793 (Bankr. E.D. Ky. 2017)("[E]ven if it is questionable whether a creditor knew of a debtor's bankruptcy at the time of the alleged stay violation, if the creditor `thereafter acquire[s] actual knowledge of the debtor['s] bankruptcy and fail[s] to take steps to undo and correct the ... result,' that constitutes willful conduct by the creditor"); In re Smith, 170 B.R. 111, 116 (Bankr. N.D. Ohio 1994)("A creditor who violates the automatic stay has an affirmative duty to restore the status quo."); In re Dungey, 99 B.R. 814, 816 (Bankr. S.D. Ohio 1989)("A creditor who has initiated collection action without knowledge of a bankruptcy petition has an affirmative duty to restore the status quo without the debtor having to seek relief from the Bankruptcy Court.").

3. The Defense Of Lack Of Notice Regarding The Existence Of The Stay.

Defendants assert that they "never" received notice of Plaintiff's bankruptcy [Adv. Doc. #20, p. 9], but concede that actual notice was received "after the garnishment proceeding was filed". [Id.]. They cite to the statement in the Christie Affidavit that The Calabrese Law Firm and/or Calabrese served as "gatekeeper" for the mail coming into the suite as demonstrating that Plaintiff cannot establish Defendants' liability. [Adv. Doc. #20, p. 5].

Plaintiff's Response [Adv. Doc. #25, p. 6], cites to a passage in In re Perviz that holds that "bankruptcy law not only requires, but demands, that companies, whether large or small, have in place procedures to ensure that formal bankruptcy notices sent to an internally improper, but otherwise valid corporate address are forwarded in a prompt and timely manner to the correct person/department." In re Perviz, 302 B.R. 357, 367 (Bankr. N.D. Ohio 2003); see also, In re Hill, 523 B.R. 704, 714 (Bankr. D. Mont. 2014); In re Garcia, 2013 WL 414177 at *7, 2013 Bankr. LEXIS 404 at **21-22 (Bankr. W.D. Tex. Feb. 1, 2013); In re Roberson, 2016 WL 6783301 at *6, 2016 Bankr. LEXIS 3944 at **19-20 (Bankr. N.D. Ohio Nov. 10, 2016)(citing cases); In re Blackaby, 2006 WL 3885134 at *2, 2006 Bankr. LEXIS 3799 at *7 (Bankr. E.D. Ky. Sept. 21, 2006).

Viewing the facts in the light most favorable to the non-moving party, there appear to be several possible failures to provide for the handling of notices that may, depending on the facts presented at trial, give rise to constructive or imputed notice, or even a finding of actual notice:

1. The Affidavit of John R. Christie states: "Pursuant to a lease entered into with an entity owned and/or controlled by Anthony O. Calabrese, Stefanik & Christie sublet offices in a suite wherein Anthony O. Calabrese and his law firm, The Calabrese Law Firm, were housed". [Adv. Doc. #20, p. 8]. Under the Perviz line of cases, where one law firm leases space from another law firm, procedures for the handling of mail of legal significance could, depending on the facts, require that the lawyers forward mail to the correct person or firm. There is nothing in the record about the terms of the lease, or what steps Defendants took to ensure that they promptly received legal notices.

2. The Assignment and Assumption Agreement was an agreement made between two law firms and was signed by individual defendant John R. Christie. Despite the legal sophistication of the parties, the Assignment makes no provision for the handling of notices regarding the underlying litigation. [Adv. Doc. #25-1, Ex. D, pp. 23-25]. Nor does it appear that there were any representations and/or warranties included in the agreement. After the Assignment became effective on July 14, 2013, the docket in the main case reflects the following notices being mailed to Plaintiff-Ragone's creditors by the bankruptcy court: August 2, 2013. Notice of Need to File Proof of Claim Due to Recovery of Assets. [Doc. #17]; February 8, 2014. Notice of Chapter 7 Case Closed Without Discharge. [Doc. #27]; June 20, 2015. Discharge of Debtor in a Chapter 7 Case. [Doc. #34]; June 20, 2015, Order Granting Motion to Reopen Chapter 7 Case. [Doc. #35].

3. It appears that Pizza Pan Elyria, LLC was mailed the initial bankruptcy notice regarding Plaintiff-Ragone's bankruptcy filing [Doc. #5], as well as the Notice of Discharge. [Doc. #34]. After the Assignment of Pizza Pan's Elyria, LLC's claims against Ragone to Stefanik & Christie, there is no evidence to reflect whether contact was initiated with Pizza Pan, and whether any inquiries were made regarding the status of the underlying case, particularly if there were concerns5 regarding the distribution of mail, including legal notices.

4. To the extent Defendants assert6 (without citing any record evidence) that Anthony Calabrese was a client, Mr. Calabrese was mailed all of the bankruptcy notices, and the same issue exists regarding what procedures were in place and what inquiries were made regarding the legal notices that were sent to Mr. Calabrese.

With virtually no cognizable record evidence having been submitted in support of the Motion for Summary Judgment, coupled with the admission in Defendants' Answer that John R. Christie "acted on behalf of the interests of both STEFANIK & CHRISTIE, LLC, and his personal interests, all in violation of the Automatic Stay provisions of 11 U.S.C. §362" [Adv. Doc. #6, p. 2, ¶5], dismissal of Plaintiff's cause of action based upon violation of the automatic stay does not appear to be warranted.

4. The Discharge Injunction.

A bankruptcy discharge:

11 U.S.C. Section 524(a)(1)-(2).

The effect of a bankruptcy discharge on a judgment is described in Collier on Bankruptcy as follows:

4 Collier on Bankruptcy, ¶524.02[1] (16th ed. 2019)(citing Lone Star Sec. & Video v. Gurrola (In re Gurrola), 328 B.R. 158 (9th Cir. BAP 2004)); see also, In re Jones, 389 B.R. 146, 163 (Bankr. D. Mont. 2008).

Accordingly, viewed in the light most favorable to the non-moving party, the Pizza Pan judgment, upon which Defendants relied in seeking to garnish the wages of Ragone, was void as of June 18, 2015, when the discharge was entered. [Doc. #33].

The Sixth Circuit Court of Appeals has cited Collier in rejecting arguments that seek to blame debtors for failing to assert the discharge, stating that §524(a) was "designed `to effectuate the discharge and make it unnecessary to assert it as an affirmative defense in a subsequent action.'" In re Hamilton, 540 F.3d 367, 3723 (6th Cir. 2008). "[T]he debtor need not raise his discharge in bankruptcy as an affirmative defense, because thanks to § 524(a) `such an affirmative defense is unnecessary and has been since 1970.'" Hamilton, 540 F.3d at 373 (quoting Braun v. Champion Credit Union (In re Braun), 141 B.R. 133, 138 (Bankr. N.D. Ohio 1992)(Krasniewski, J.)).

Further, there is case law suggesting that where there has been a garnishment of funds based upon a discharged debt, regardless of notice, the full amount of the post-discharge garnishments should be ordered returned. See, In re Thal, 2018 WL 2182304 at *4, 2018 Bankr. LEXIS 1308 at **10-11 (Bankr. S.D. Fla. May 9, 2018); In re Banks, 577 B.R. 659, 667 (Bankr. E.D. Va. 2017)("This argument ignores that it was Baumann who had the affirmative duty to remit to the Debtor the wages Baumann had unlawfully garnished."); Pritner v. COFCO Credit Co., L.L.C. (In re Pritner), 323 B.R. 802 (Table), 2005 WL 705363 at *3, 2005 Bankr. LEXIS 404 at *9 (10th Cir. BAP March 21, 2005); In re Venegas, 257 B.R. 41, 47-48 (Bankr. D. Idaho 2001); In re Griffin, 108 B.R. 717, 720 Bankr. W.D. Mo. 1989).

Because the record does not reflect whether all funds that were garnished after the judgment was rendered void were returned to the Plaintiff, there is a genuine issue of material fact that needs to be resolved at trial.

5. The Standard of Proof.

Movant argues that: "As this court is aware, the burden of proof to pursue the present claim is one of clear and convincing evidence. See Brockington 129 BR [68] at 70; In re: Zunich, 88 B.R. 721 (Bankr. W.D. Pa. 1988); and In Re: Wagner, 74 B.R. 898 (Bankr. E.D. Pa. 1987)." [Adv. Doc. #20, p. 4].

Two of the cases8 cited by Movant — In re Brockington, 129 B.R. 68 (Bankr. D.S.C. 1991) and In re Zunich — deal with §362(h), the pre-BAPCPA version of §362(k)(1). However, the change in the statute is not the reason why the holdings regarding "clear and convincing evidence" in Brockington and Zunich are no longer good law.

In 1991, the United States Supreme Court, in Grogan v. Garner, held that: "Because the preponderance-of-the-evidence standard results in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless particularly important individual interests or rights are at stake." 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991)(quotation omitted).

More recent case law holds that in order to prevail on a §362(k) claim, a plaintiff must prove by a preponderance of the evidence that the stay imposed under §362 was violated, that the violation was committed willfully and that plaintiff was injured by the violation. In re Grine, 439 B.R. 461, 466 (Bankr. N.D. Ohio 2010); see also, In re McCormick, 2018 WL 6787558 at *5, 2018 Bankr. LEXIS 4041 at *12 (6th Cir. BAP Dec. 26, 2018); In re Baer, 2012 WL 2368698 at *10, 2012 Bankr. LEXIS 2849 at *27 (6th Cir. BAP June 22, 2012); Collett v. Lee Oil Company, Inc. (In re Collett), 2014 WL 2111309 at *4, 2014 Bankr. LEXIS 2250 at *10 (6th Cir. BAP May 21, 2014); In re Shrum, 597 B.R. 845, 856 (Bankr. E.D. Mich. 2019); In re Witham, 579 B.R. 787, 792-793 (Bankr. E.D. Ky. 2017); In re Mocella, 552 B.R. 706, 714 (Bankr. N.D. Ohio 2016); In re Mitchell, 545 B.R. 209, 220 (Bankr. N.D. Ohio 2016)9; In re Phillips, 2015 WL 4356641 at *2, 2015 Bankr. LEXIS 2305 at *6 (Bankr. E.D. Tenn. July 13, 2015)(quoting Collett); In re Swartzentruber, 2014 WL 2930450 at *1, 2014 Bankr. LEXIS 2804 at *3, (Bankr. N.D. Ohio June 27, 2014); In re Pawlowicz, 337 B.R. 640, 646 (Bankr. N.D. Ohio 2005); In re Skeen, 248 B.R. 312, 316-17 (Bankr. E.D. Tenn. 2000).

Section 362(k)(1) states:

Under §362(k), damages must be proven with reasonable certainty and cannot be based on conjecture or speculation. See, Archer v. Macomb Cnty. Bank (In re Archer), 853 F.2d 497, 499-500 (6th Cir. 1988). As the party seeking damages, the debtor has the burden of proving entitlement to damages. In re Sharon, 234 B.R. 676, 687 (6th Cir. BAP 1999)("The bankruptcy court appropriately assigned to the Debtor the burden to prove entitlement to damages.").

Courts have awarded punitive damages under §362(k) for a willful violation of the automatic stay based upon the preponderance of the evidence standard. See e.g., In re Addleman, 2018 WL 5797709 at *10, 2018 Bankr. LEXIS 3370 at *13 (Bankr. N.D. Ohio Nov. 2, 2018). An award of punitive damages is within the bankruptcy court's discretion where actual damages are an insufficient deterrent to further violations. Archer, 853 F.2d at 500.

In contrast, for the court to find a violation of the discharge injunction to be contempt, the standard remains one of "clear and convincing evidence". See, In re Botson, 531 B.R. 719, 724 (Bankr. N.D. Ohio 2015)(citing Liberte Capital Group, LLC v. Capwill, 462 F.3d 543, 550 (6th Cir.2006)). While some courts have held that constructive knowledge can give rise to contempt, other courts, including those in the Sixth Circuit, have required actual knowledge.10 See, In re Hamaoui, 2016 WL 4991504 at *2, 2016 Bankr. LEXIS 3382 at *5 (Bankr. N.D. Ohio Sept. 16, 2016)(citing cases). In either case, issues regarding a defendant's knowledge of the discharge injunction are fact-intensive and are best resolved after an evidentiary hearing. See, In re Haltermon, 592 B.R. 311, 320 (Bankr. S.D. Ohio 2018)(quoting In re Zilog, Inc., 450 F.3d 996, 1007 (9th Cir. 2006)("knowledge of the injunction is a question of fact that can normally be resolved only after an evidentiary hearing.")).

6. The Defense Raised To Claims Against John R. Christie Personally.

Movant John R. Christie argues that:

[Adv. Doc. #20, pp. 4-5].

In his Response, Plaintiff states: "Defendant, John R. Christie, asserts he is unaware of any case holding counsel equally in contempt of court, with the client represented. Apparently, defendant did not research this issue. The following cases, among many, hold counsel equally subject to sanctions. Burton v. Mouser, 2010 Bankr. LEXIS 675; 2010 WL 996537; In re: Joseph, 584 B.R. 696; 2018 Bankr. LEXIS 329". [Adv. Doc. #25, p. 8].

The defense asserted by Movant John R. Christie has been raised in a number of cases by attorneys attempting to defend against violations of the automatic stay and contempt. An older decision, which remains influential, echoes Movant's argument, but also reflects the position of most bankruptcy courts:

In re Timbs, 178 B.R. 989, 995 (Bankr. E.D. Tenn. 1994).

Subsequently, courts have issued decisions with a similar tone, following Timbs. See e.g., In re Frankel, 391 B.R. 266, 271 n. 6 (Bankr. M.D. Pa. 2008)("Wix does not argue that he did not violate the stay because he only acted in a representative capacity to advance Strayer's interests. Numerous courts have found attorneys to be personally liable for damages under § 362(h) even when their actions were undertaken only within the scope as counsel for a creditor."); In re Renzulli, 2015 WL 9777743 at *6, 2015 Bankr. LEXIS 4435 at *15, (Bankr. D. N.J. Nov. 23, 2015)11.

More recently, the Sixth Circuit Bankruptcy Appellate Panel held: "Attorneys may be held liable for violations of the automatic stay as a result of actions they have taken or omissions they have made in representation of their clients." In re Wohleber, 596 B.R. 554, 563 n.6 (6th Cir. BAP 2019)(citing Timbs).

Accordingly, this defense asserted by John R. Christie, individually, does not appear to be a basis for granting summary judgment in his favor.

7. Additional Reasons To Deny The Motion For Summary Judgment.

The record presently before the court is wholly inadequate for the court to find the absence of any genuine dispute regarding the material facts in this case.

The problems for Defendants' Motion start with the Answer filed in this case. The Movants denied the following, in full, for want of knowledge:

[Adv. Doc. #1, p. 3; Adv. Doc. #6, p. 1, ¶4].

Thus, nothing in the denied portions of the Complaint can be taken as true. See, Fed. R. Civ. P. 8(b)(5); Fed. R. Bankr. P. 7008. Moreover, there is no information in Movant's Affidavit about these parties, other than the averment that Anthony O. Calabrese sublet offices in a suite "wherein Anthony O. Calabrese and his law firm, The Calabrese Law Firm were housed". [Adv. Doc. #20, p. 8, ¶3]. "Mail was delivered to the front desk of the suite located at 240012 One Cleveland Center, Cleveland, Ohio 44114". [Id., ¶4]. The Affidavit further states that there was a front desk that was overseen, during some unstated time frame, that was "controlled, and otherwise occupied by representatives employed by The Calabrese Law Firm." [Id., ¶5]. "Said individuals received the mail and distributed the same as directed by Anthony O. Calabrese and/or his employees and/or agents." [Id., p. 9, ¶6].

While the court may assume, based on context, that as used in the Affidavit, "Petitioner" refers to Ragone, and "Stefanik & Christie" includes John R. Christie personally — still, taken in concert, paragraphs 7, 8, and 9 of the Affidavit are contradictory. The Affidavit states that Stephanik & Christie "never received notice of Petitioners Bankruptcy filing" [Id., ¶7], and "never received notice of any Stay due to the Bankruptcy filing" [Id., ¶8]. However, Stephanik & Christie's "first notice of the Bankruptcy was after the garnishment proceeding was filed" [Id., ¶9]. Thus, the use of the word "never" in Paragraphs 7 & 8 do not appear to actually mean "never", if notice was actually received at a later date. This imprecision would appear to create a genuine issue in any event, but it is especially problematic when the Plaintiff has presented evidence, viewed in the light most favorable to the non-moving party, that the first garnishment against Ragone (albeit by all appearances unsuccessful) may have been filed on May 13, 2013, or shortly thereafter [Adv. Doc. #25-1, p. 29-32].

More damaging to Movant's position is what is admitted by Movants in their Answer. The following was admitted in full:

See, Doc. #6, p. 2, ¶5 ("5. These Answering Defendants admit the allegations contained in Paragraphs 9 and 10 of Plaintiffs' Complaint.").

Viewed in the light most favorable to the non-moving party, the admission in Movants' Answer that John R. Christie and Stefanik & Christie, LLC had acted in their own interests, "all in violation of the Automatic Stay provisions of 11 U.S.C. §362, and the Permanent Injunction provisions of 11 U.S.C. §524" [Doc. #6, p. 2, ¶5] appears to create a factual issue that precludes the granting Defendants' Motion for Summary Judgment.

An additional issue of material fact is raised by the Affidavit of Robert C. Wentz. The Affidavit reflects that in March of 2016, "I contacted Attorney John Christie" about "why the wage garnishment was ongoing in light of the bankruptcy discharge."13 Based on Wentz's Affidavit, if John R. Christie and Stefanik & Christie did nothing, despite actual knowledge of 1) Ragone's bankruptcy, 2) the discharge of the obligation, and 3) the voiding of the underlying judgment, there is an issue as to whether that is sufficient for a finding of contempt. The records of the Cleveland Municipal Court reflect a payment received from what appears to be Ragone's employer on and after March 29, 2016. [Adv. Doc. #25-1, p. 38-41]. They also appear to reflect a disbursement to Stefanik & Christie on March 30, 2016. [Id., Ex. G, p. 38; Ex. H, p. 44].

The Affidavit further alleges that Attorney Wentz filed an "Emergency Motion to Stay Disbursements and Terminate Wage Garnishment in the Cleveland Municipal court" on April 8, 2016. [Adv. Doc. #25-1, Ex. I, p. 47 ¶ 5; Ex. G, p. 38, Entry 112; Ex. H, p. 44]. The Affidavit states that the Emergency Motion was mailed to John R. Christie on the same day [Id., Ex. I, p. 47 ¶ 6], with a cover letter that was attached to the Affidavit. [Id., p. 49]. However, the documentation submitted by the non-moving Plaintiff appear to reflect wage garnishment monies continuing to be paid into the court by Ragone's employer from April 14, 2016 to July 20, 2016. [Id., p. 38-41].

Other notable dates are May 17, 2016 and May 20, 2016. On May 17th, John R. Christie filed a Brief in opposition to Attorney Wentz's Emergency Motion to Stay Disbursement and Terminate Wage Garnishment. [Id., p. 38]. On May 20th, John R. Christie filed a Motion to Reopen in Ragone's Chapter 7 case. [Doc. #37]. Clearly, at that point, John R. Christie had knowledge of the filing of Chapter 7 case, Case No. 13-51335, but the only evidence before the court regarding the actions John R. Christie took to stop the wage garnishment is the portion of his Affidavit stating: "Stefanik & Christie agreed to terminate the garnishment proceeding and not contest the release of any garnished funds from the Cleveland Municipal Court to the Petitioner." [Adv. Doc. #20, p. 9, ¶10]. And yet, the certified copy of the Municipal Court "Journal" appears to reflect garnishments in the amount of $203.59 each, from Ragone's employer on June 1, 2016, June 13, 2016, June 30, 2016, July 7, 2016, July 14, 2016, and July 20, 2016. [Adv. Doc. #25-1, Ex. F, pp. 39-41].

Regardless of when John R. Christie learned of the bankruptcy discharge, it was entered on June 18, 2015. [Doc. #33]. There is evidence, and apparent agreement, that $1,832.31 was returned to Plaintiff-Ragone. [Adv. Doc. #27-1 p. 2-3; Adv. Doc. #25, p. 3 ("$1,832.31 was returned to Plaintiff, through his attorney, Robert Wentz."); Adv. Doc. #25-1, Ex. G, p. 41, Entry 132 & Ex. H, p. 44]. However, viewed in the light most favorable to the non-movant, the amount garnished from Ragone post-discharge exceeds the amount of money that was returned to Plaintiff. [Adv. Doc. #25-1, pp. 36-40 (reflecting garnishments of $203.59, approximately twice a month, from June 26, 2015 through July 20, 2016)]. To the extent that Defendants retained monies received through garnishments based upon a judgment rendered void by 11 U.S.C. §524(a)(1), there is a genuine issue for trial.

The Defendants also assert, as a defense, that the monies went to Mr. Calabrese or his law firm. For example, Defendants' Reply states: "Money previously garnished was done so on behalf of The Calabrese Law Firm and/or Anthony Calabrese, III. Any and all proceeds from garnishment went benefit Anthony Calabrese, III and/or The Calabrese Law Firm." [Adv. Doc. #27-1, p. 2]. The Reply again states: "Further, Plaintiff ignores the fact that all of the proceeds of the garnishment went to the benefit of The Calabrese Law Firm and/or Anthony Calabrese, III." [Adv. Doc. #27-1, p. 3]. The Reply also appears to state that The Calabrese Law Firm and/or Anthony Calabrese, III are the "actual holder of the debt". [Adv. Doc. #27-1, p. 5].

The problems with these statements start with the fact that there is no record evidence regarding any monies going from Stefanik & Christie, LLC to The Calabrese Law Firm and/or Anthony Calabrese, III. Nor is there anything in the cognizable record reflecting an alleged attorney-client relationship relating to this debt.

Plaintiff's Response alleges facts that differ from Defendants unverified statements, citing to the Assignment from the Calabrese Law Firm, LLC and Anthony Calabrese, III to Stephanik & Christie, LLC and John R. Christie:

[Adv. Doc. 25, p. 2].

The Assignment Plaintiff has cited, Exhibit D, reflects an assignment of the obligation to Defendants on July 14, 2013 [Adv. Doc. #39-1, Ex. D, p. 23], just after the bankruptcy was filed on May 8, 2013 [Adv. Doc. #25-1, Ex. A, p. 3], and before the post-discharge wage garnishments began [Id., Ex. F, p. 33].

Thus, the record evidence appears to only consist of the copy of the Assignment and Assumption Agreement. While there is a statement that Assignor (The Calabrese Law Firm and/or Anthony Calabrese, III) owes legal fees to Assignee (Stefanik & Christie, LLC) [Adv. Doc. #25-1, Ex. D, p. 23], the document also states that the Assignor desires to assign the proceeds of the "garnishment proceeding involving Frank Ragone" to Assignee. The Assignment further states that: "Assignor hereby sells, assigns transfers and sets over unto Assignee, its successors and assigns, all of Assignor's rights and benefits in, under and to the Proceeds." [Id.].

The certified documents from the Municipal Court submitted by Plaintiff reflect that after a "Change of Counsel" filed on November 20, 2014 [Adv. Doc. #25-1, Ex. F, p. 34], all monies from the garnishment were reported as being disbursed to "Stefanik & Christie". That suggests that all unreturned garnished funds received after the entry of the bankruptcy discharge on June 18, 2015 were initially disbursed by the Cleveland Municipal Court to Stefanik & Christie. [Adv. Doc. #25-1, Ex. F, pp. 36-38]. This record is not inconsistent with the language of the Assignment, which states that it "sells, assigns, transfers and sets over unto Assignee, its successors and assigns, all of Assignor's rights and benefits in, under and to the Proceeds." [Adv. Doc. #25-1, p. 23]. Thus, who actually received the monies from the wage garnishment, and under what right, appears to be another genuine issue of material fact, based upon the record the court can consider in deciding the present Motion.

For all of the reasons set forth above, Movants have failed to demonstrate the absence of genuine issues of material fact, or their entitlement to judgment as a matter of law.

THEREFORE, for the foregoing reasons, good cause appearing,

IT IS ORDERED that Defendant's Motion for Summary Judgment be, and hereby is, DENIED.

IT IS FURTHER ORDERED that a further pretrial scheduling conference be set for June 11, 2019 at 3:00 p.m. in Courtroom No. 1, Room 119, United States Courthouse, 1716 Spielbusch Avenue, Toledo, Ohio 43604 so that a date for trial may be set. Parties may appear by telephone.