MARY D. FRANCE, Bankruptcy Judge.
On October 1, 2012, I issued an Opinion in the above-captioned adversary case in which I found that Arthur Carr ("Carr") violated the automatic stay in the bankruptcy case of Tanisha Dean ("Debtor") by refusing to surrender possession of her 2006 Toyota Solara (the "Solara"). On December 18, 2012, a hearing was held to determine the amount of damages, if any, that should be awarded to Debtor as a result of Carr's violation of the stay. The parties have filed briefs, and the matter is ready for decision.
Debtor purchased the Solara in 2007 with financing provided by Toyota Financial. After Debtor defaulted on the loan, Toyota Financial repossessed the vehicle. Carr loaned Debtor the funds necessary to enable her to redeem the vehicle, and the parties agreed Carr would have an interest in the vehicle as security for the loan. Debtor promised Carr that she would repay the funds loaned, but the repayment terms were vague and never reduced to writing. At some point not specified in the record, Debtor went to Louisiana and left the Solara with Carr. In or around March 2010, Debtor informed Carr that she wanted to move to Arizona and take the Solara with her, but Carr refused to surrender the vehicle. Carr maintained possession of the vehicle on the date Debtor filed her bankruptcy petition, August 16, 2011. As previously determined by this Court, Carr obtained a perfected security interest in the Toyota through possession.
Debtor listed Carr as a creditor in her schedules, and Carr received notice of the filing of the case. On several occasions after the petition was filed Debtor's counsel demanded Carr return the Solara, but Carr refused to comply. In November 2012, more than a year after Debtor filed her petition, Carr surrendered the vehicle.
Debtor is a single woman who holds a culinary degree from the Restaurant School at Walnut Hill College, Philadelphia, Pennsylvania. In or around March 2010, she moved from York, Pennsylvania to Maricopa, Arizona to live with her parents. Between March and September 2010, she was employed by two restaurants where she earned up to $11.00 per hour. After returning to York in or around September 2010, she obtained employment at Dawn Foods through a temporary staffing agency. Her earnings from this job — which she held for only one month — are not of record.
Debtor was unemployed at the time she filed her bankruptcy petition, but she continued to apply for work, primarily in the retail and food service industries. She also applied for positions at an assisted living facility, Country Meadows, and at Bell Socialization Services, which provides support services for mentally disabled individuals. According to her testimony, these entities would have offered her employment if private transportation had been available to her. Debtor provided no evidence regarding the terms of these employment opportunities, such as the wages or hours offered.
Both before and after Debtor filed her Chapter 7 petition, she attempted to start
Prior to filing her bankruptcy case, CGA Law Firm ("CGA") agreed to handle the matter pro bono. In or around September 2012, Debtor and CGA executed an undated "Memorandum for Record" which stated that at the time Debtor first retained CGA:
After filing her bankruptcy petition, Debtor suffered from panic attacks and general anxiety because she was worried about how she would pay her bills. She was prescribed medication by her physician to treat this condition.
On October 1, 2012, I issued an Opinion in which I specifically found that Carr had violated the stay when he refused to return the vehicle despite the demands issued by Debtor's counsel. I further held that his "duty to return the Solara to the Debtor is a continuing one." In re Dean, Adv. No. 1-12-ap-00481MDF, 2012 WL 4634291, *4 (Bankr.M.D.Pa. October 1, 2012). Despite the clear language of this Opinion, which Carr did not challenge by seeking reconsideration
On September 12, 2012, Debtor filed a Chapter 13 petition while the adversary proceeding in her Chapter 7 case was pending. According to the Disclosure of Compensation of Attorney for Debtor filed in the case, CGA agreed to represent Debtor for $3500 as a minimum fee. When Debtor failed to pay the filing fee in full, the case was dismissed on March 21, 2013.
Courts are divided on whether a creditor's failure to voluntarily return estate property to the debtor when it was lawfully repossessed prior to the filing of the petition constitutes a prohibited attempt to exercise control over property of the estate in violation of 11 U.S.C. § 362(a)(3). In Knaus v. Concordia Lumber Co., Inc. (In re Knaus), 889 F.2d 773 (8th Cir.1989), the Eighth Circuit determined that a creditor has an affirmative duty to return property repossessed prepetition and that turnover
In this Court's view, the correct interpretation of the Supreme Court's holding in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) compels the conclusion that a creditor who has possession of property in which a debtor has an interest at the time a bankruptcy petition is filed has an obligation to immediately return the property to the debtor's estate upon receiving notice of the petition. See Id. at 205, 103 S.Ct. 2309 (explaining that the estate includes property in which the debtor could have had a possessory interest on the date the petition was filed, including property not in the debtor's possession on the date of the petition). Property of the estate under 11 U.S.C. § 541 includes property made available to the estate under § 542(a). This section requires an entity that has possession of a debtor's property to turn the property over to the trustee. Whiting Pools suggests that a debtor does not need to provide adequate protection of a creditor's interest before the duty to turn over the property arises. Upon application to the court, however, a debtor may be compelled to provide adequate protection in order to retain the property.
As observed by the bankruptcy court in Weber v. SEFCU, 477 B.R. 308 (N.D.N.Y.2012), this interpretation of the Supreme Court's holding in Whiting Pools has been adopted by the majority of appellate courts to address the issue. Id. at 312 (citing Thompson v. Gen. Motors Acceptance Corp. LLC, 566 F.3d 699, 703 (7th Cir.2009); In re Yates, 332 B.R. 1, 4-5 (10th Cir. BAP 2005); In re Sharon, 234 B.R. 676, 681 (6th Cir. BAP 1999); State of California v. Taxel (In re Del Mission), 98 F.3d 1147, 1151 (9th Cir.1996); In re Knaus, 889 F.2d at 775). The Court of Appeals for the Third Circuit has not addressed this issue, and the decisions of the bankruptcy courts in the Circuit are divided. In the absence of binding authority, I adopt the majority view of the appellate courts that a creditor in possession of property of the bankruptcy estate must immediately and unconditionally turn over the property to the estate once the petition is filed. Having further clarified the position set forth in my earlier decision in this case, in which I found that Carr's retention of Debtor's vehicle after the filing of the petition was in violation of the automatic stay, I turn to the issue of the measure of damages for Carr's violation of the stay.
"[A]n individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages." 11 U.S.C. § 362(k). In the matter before me, Debtor seeks both actual and punitive damages. Any award of damages, whether actual or punitive, must be based upon the evidence submitted in support of the claim at the hearing held in this matter.
For purposes of § 362(k), "`[a]ctual damages' are amounts `awarded ... to compensate for a proven injury or loss; damages that repay actual losses.'" In re Copeland, 441 B.R. 352, 368 (Bankr. W.D.Wash.2010) (citing Sternberg v. Johnston,
Actual damages for a violation of the automatic stay "should be awarded only if there is concrete evidence supporting the award of a definite amount that can be ascertained with reasonable certainty." In re Frankel, 391 B.R. 266, 272 (Bankr.M.D.Pa.2008) (citations omitted). A damages award under § 362(k) "cannot be based on mere speculation, guess, or conjecture." Id.
In the matter before me, Debtor seeks actual damages for wages she believes she would have earned if Carr had returned the Solara to her promptly. She asserts that she would have been able to accept a position with one of several entities where she had submitted applications for employment. Although she testified that she was offered a position at Dawn Foods, Country Meadows, and Bell Socialization, she did not describe the terms of employment, including the wage rate or number of hours offered.
In In re Castillo, 456 B.R. 719 (Bankr. N.D.Ga.2011), the bankruptcy court addressed a similar situation in which a creditor retained possession of a vehicle owned by an unemployed debtor in violation of the stay. In that case, the debtor testified that he had been offered full-time, permanent employment, but had been unable to accept the position because the defendant had possession of his car. He provided no testimony regarding the wages he would have earned if he had been able to accept the offer. The bankruptcy court determined that the debtor's testimony was credible, but ruled that "the evidence is simply not substantial enough to allow the Court to determine the measure of wages to apply in calculating the damage suffered...." Id. at 726 (internal quotations omitted); see also In re Beair, 168 B.R. 633, 637 (Bankr.N.D.Ohio 1994) (damages for lost wages denied where debtor's only evidence of earnings from use of repossessed truck was prior year's taxable income); In re Thompson, 426 B.R. 759, 768 (Bankr.N.D.Ill.2010) (debtor who worked as children's entertainer could not recover damages without records to support claims for loss of income for services rendered at five to ten birthday parties). In this case, without evidence describing the wage rate and hours offered, it would be wholly speculative for me to attempt to calculate the amount of lost wages suffered by Debtor. Therefore, Debtor's claim for actual damages for unrealized potential wages will be denied.
Debtor is unable to recover the cost of obtaining a replacement vehicle or renting a car. Debtor provided evidence that a rental car would have cost approximately $170 a week. Plainly, this expense would have constituted actual damages if a vehicle had been rented, but this did not occur. The Court cannot award damages based upon speculation that Debtor could have rented a vehicle in this amount for the sixty-three weeks from the petition date until date the Solara was returned.
Debtor asserts that Carr's refusal to return the vehicle caused her to suffer emotional distress for which she should be compensated. She testified that because she was worried about how she would pay her bills, she suffered anxiety and panic
Several standards have been developed by the appellate courts for plaintiffs who are seeking damages for emotional distress under 11 U.S.C § 362(k). See In re Repine, 536 F.3d 512, 521 (5th Cir.2008) (citing Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir.1999)) (stating that "specific information" rather than "generalized assertions" is required to obtain damages for emotional distress resulting from violation of stay); In re Dawson, 390 F.3d 1139, 1148-49 (9th Cir.2004) (requiring a showing of "significant harm" by "clear and convincing evidence"); Aiello v. Providian Financial Corp., 239 F.3d 876, 880 (7th Cir.2001) (tortious infliction of emotional distress claims for violation of the automatic stay must be accompanied by financial injury).
Most bankruptcy courts have held that emotional distress damages may be awarded only if a causal connection is established between the creditor's actions and the emotional distress suffered. "The majority of the courts have denied damages for emotional distress [caused by violation of the stay] where there is no medical or other hard evidence to show something more than fleeting or inconsequential injury." Stinson v. Bi-Rite Restaurant Supply, Inc. (In re Stinson), 295 B.R. 109, 120 n. 8 (9th Cir. BAP 2003) quoted in In re Wingard, 382 B.R. 892, 906 (Bankr. W.D.Pa.2008).
In the matter before me, Debtor testified that her physician prescribed medication to control her anxiety. But her testimony suggested that her numerous financial difficulties, including the possible loss of her home and a pre-petition IRS levy, also contributed to her emotional distress. Debtor did not offer any specific information regarding the injury or injuries that she suffered as a result of Carr's violation of the stay. Rather, she testified that she "was stressed a lot ... trying to work out like how was I going to pay my bills...." (N.T. 49). She further testified that she "was having like a lot of panic attacks and a lot of anxiety because I was very stressed because I couldn't have employment." (N.T. 49-50). Thus, her emotional turmoil appears to have been caused by her financial problems generally and not attributable to Carr's refusal to return her Solara.
As indicated in the Factual Findings, CGA agreed to represent Debtor on a pro bono basis prior to filing her Chapter 7 petition in August 2011. The fee agreement was later amended, sometime in or around October 2011, to reflect the parties' understanding that the fees could be paid by "third parties" upon entry of a court order. The amended agreement specifically stated that Debtor would not be responsible for payment of attorney's fees under any circumstances in her Chapter 7 case.
As quoted above, the language of § 362(k) provides for the compensation of "actual damages." Attorneys' fees are included in "actual damages" and are not addressed as a separate category of damages. In re Thompson, 426 B.R. at 765 (observing that § 362(k) is not a fee-shifting statute, which provides that the prevailing party is entitled to an award of fees separate from a damages award). Thus, the issue arises as to whether a debtor incurs "actual damages" in the form of counsel fees when she is not and will never be liable for such fees. While bankruptcy courts are not in complete agreement on this issue, the better-reasoned decisions deny counsel fees under § 362(k) if the debtor is represented on a pro bono basis and will never be personally liable for the fees.
The bankruptcy court in Thompson discussed the rationale underpinning this rule. In Thompson, GMAC refused to return a repossessed vehicle to the debtor after he filed a Chapter 13 petition. The debtor entered into a written fee agreement in connection with his bankruptcy case in which he agreed to pay $3500 for the standard services provided by attorneys in Chapter 13 cases filed in the district. Id. at 766. The bankruptcy court denied the request for sanctions against GMAC. The debtor's attorneys advised that they believed the debtor had a strong chance of winning on appeal and agreed to pursue the appeal without requiring further fees. The debtor was assured that if the decision was reversed, his attorneys would be able to recover their fees from GMAC. When the bankruptcy court's decision was reversed and remanded for the assessment of damages, the debtor and his counsel each testified that the debtor was not obligated to pay further fees beyond the flat fee paid at the beginning of the case. Id. at 766-67. Based on this testimony, the bankruptcy court found that because the debtor was not legally responsible for fees related to the motion pursued against GMAC for violation of the stay and the resulting appeal, the debtor could not collect fees from GMAC as "actual damages." Id. at 767.
The Chapter 13 case, however, is another matter. Once Debtor filed her Chapter 13 petition, a second and simultaneous duty to return the Solara to Debtor arose. Carr nonetheless continued to deny Debtor possession of the vehicle, in violation of the automatic stay. In the second case, Debtor agreed to pay CGA a minimum fee of $3500 for representation. Although Debtor never paid CGA any of the promised fees prior to dismissal of the case, she incurred attorney's fees as actual damages related to Carr's violation of the automatic stay.
"Imposition of damages for willful violation of the automatic stay serves an important purpose even after the underlying bankruptcy case has been dismissed; it provides compensation for and punishment of intentionally wrongful conduct." In re Davis, 177 B.R. 907, 911 (9th Cir. BAP 1997) quoted in In re Rodriguez, 2012 WL 589553, *1 (No. 07-24687(MBK), Bankr. D.N.J. Feb. 22, 2012) (other citations omitted). Further, whether or not Debtor paid some or all of the fees owed is irrelevant to the Court's determination that Debtor incurred actual damages in connection with the Chapter 13 case. A debtor is not required to pay fees to the attorney before they can be recovered as damages in an action under § 362(k) for violation of the automatic stay. In re Thompson, 426 B.R. at 765-66. Unless there has been a release or waiver of fees, Debtor is obligated to pay CGA the fees described in the Disclosure. Accordingly, it is appropriate to award attorneys' fees as damages for the services rendered by CGA in the Chapter 13 case in response to Carr's violation of the automatic stay.
CGA submitted time records for all work performed on Debtor's behalf, but did not distinguish Chapter 7 services from Chapter 13 services. Further, CGA did not segregate services provided in connection with enforcing the automatic stay from other services rendered. Nevertheless, the Court is able to identify the time spent by CGA in the Chapter 13 case pursuing Debtor's claim against Carr by reviewing the firm's time records submitted in evidence. Having reviewed the time entries submitted in Debtor's Exhibit 12, I find that Debtor incurred fees as actual damages in connection with the enforcement of the stay in the amount of $2500.
Punitive damages are awarded when defendant's conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief. It is an appropriate response to particularly egregious conduct for both punitive and deterrent purposes. In re Gagliardi, 290 B.R. at 822. To recover punitive damages, the plaintiff must prove that the defendant acted with actual knowledge that he was violating a protected right or with reckless disregard of whether he was violating plaintiff's rights. In re Wagner, 74 B.R. 898, 903-04 (Bankr.E.D.Pa.1987) (quoting Cochetti v. Desmond, 572 F.2d 102 (3d Cir.1978)); In re Patterson, 263 B.R. 82, 97 (Bankr.E.D.Pa.2001). Punitive damages are especially appropriate when a party has acted in "arrogant defiance" of the Bankruptcy Code.
Bankruptcy courts consider several factors when determining whether to award punitive damages. In the Frankel case, I held that the following factors are relevant: (1) the creditor's conduct; (2) the creditor's motives; (3) the creditor's ability to pay damages
This is not the typical case of a debtor filing a bankruptcy case to save a vehicle after it has been repossessed by a lender in the business of making automobile loans. Debtor obtained a loan from Carr, a distant relative, so that she could redeem her vehicle after it had been repossessed by Toyota Financial. Carr is not a financial institution or a finance company. Based upon the manner in which the loan transaction was structured, he may be regarded as an unsophisticated lender. Debtor acknowledged that she was obligated to repay the loan to Carr, and she agreed to include him on the title as a secured creditor. But the parties never reduced the agreement to writing or even agreed to repayment terms. Carr did not repossess the Solara; Debtor voluntarily surrendered it before she moved to Arizona. Once Carr obtained possession of the vehicle, his lien was perfected. No evidence was introduced to support a finding that Debtor intended to surrender the vehicle permanently to Carr. She did not transfer the title to him or surrender possession of the Solara in satisfaction of the debt. Debtor repeatedly attempted to regain possession of the vehicle after she returned to Pennsylvania. When Carr obtained a judgment against her for the
Carr did not return the Solara to Debtor until November 3, 2012, thirty-three days after I issued Opinion finding him to be in continuing violation of the stay and fifteen months after Debtor filed her petition. Although the Order that accompanied the Opinion did not specifically direct Carr to return the vehicle, the Order granted summary judgment to Debtor "on the issue of whether Defendant violated the automatic stay under 11 U.S.C. § 362 by refusing to return the Solara to Plaintiff upon demand after the filing of her bankruptcy petition." In re Dean, 2012 WL 4634291, *4 (Adv. No. 1-11-ap-00481MDF, Bankr.M.D.Pa. October 1, 2012). As noted above, Carr was under a duty to immediately return the vehicle once he was informed that Debtor had filed her bankruptcy petition. This duty to comply with the Code was not contingent upon Debtor providing adequate protection to Carr's interest.
While Carr insisted that he had no duty to surrender the Solara to Debtor, his false belief is not a defense. It is axiomatic that "a creditor's good faith belief that it had a right to [a debtor's] property is irrelevant" to the question of whether the creditor has willfully violated the stay. In re Johnson, 501 F.3d 1163, 1172 (10th Cir.2007) (citing In re Chesnut, 422 F.3d 298, 302 (5th Cir.2005); Kaneb, 196 F.3d at 268-69; Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478, 483 (9th Cir.1989)). A creditor who presumes to "unilaterally determine the scope and effect of the automatic stay" does so at his peril. In re Diviney, 225 B.R. 762, 777 (10th Cir. BAP 1998); In re Pachman, 2010 WL 1489914, *4 (No. 09-37475, Bankr.S.D.N.Y. April 14, 2010).
Carr refused to turn over the Solara to Debtor because he believed that it was uninsured, which had been an ongoing point of contention between the parties. Before she left the Solara in Carr's possession in March 2010, Debtor was involved in an accident with the vehicle. Carr had provided insurance coverage for the Solara on his policy, but demanded that Debtor pay the deductible. According to Carr, it was at this time that Debtor left the Solara in his possession. While Carr's concern about insurance coverage is understandable, it did not justify his refusal to return the vehicle to Debtor. See In re Diviney, 225 B.R. at 777 (bank could not hold vehicle "hostage" under the guise of requiring proof of insurance; punitive damages against bank for violation of the stay appropriate).
In this case, Carr was an unsophisticated lender. He was, however, represented by counsel who should have made him aware of his duty to immediately return the vehicle to Debtor. If Debtor failed to make adequate protection payments or insure the vehicle, he could have pursued relief from the stay. Carr's violation of the stay was more than a bare or technical violation. It was an intentional act that deprived Debtor of the use of her vehicle for a significant period of time. It is an example of the type of case the Third Circuit has described as being appropriate for the imposition of punitive damages — those "in which the defendant's conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief." Cochetti, 572 F.2d at 106.
Nothing in the evidence presented suggested that Carr intended to injure Debtor. At trial the testimony and demeanor of both Debtor and Carr displayed the friction that had developed between the two parties over the repayment of the loan and Carr's retention of the vehicle. But Carr's refusal to surrender the vehicle seemed to be based primarily on his desire to obtain repayment for the loan.
Carr argued at trial that Debtor "provoked" his actions by failing to make payments on the Solara pre-petition. The Court does not believe that the failure to make payments, especially under the circumstances of this case, constitutes provocation. There is some evidence that Debtor failed to make appropriate repairs to the vehicle when it was damaged in the accident, but while intentional destruction or damage to a vehicle may be regarded as provocation, failure to repay a debt or repair the collateral usually would not.
The record contains little information pertaining to Carr's ability to pay punitive damages. See In re Crawford, 388 B.R. 506 (Bankr.S.D.N.Y.2008) (while Court found creditor liable for punitive damages for stay violation, it could not calculate proper amount of such damages without evidence of ability to pay) aff'd in part, vacated and rem'd on other grounds 476 B.R. 83 (S.D.N.Y.2012). Carr's ability to advance Debtor the funds necessary to redeem the Solara in 2010 is some evidence that he has the ability to pay punitive damages. The testimony that he has no source of income other than Social Security, however, suggests that his ability to pay is limited.
Debtor was unable to meet her burden to establish the amount of actual damages that she sustained as a consequence of Carr's refusal to return her vehicle other than attorneys' fees in her Chapter 13 case. Although some of the harm she suffered could not be quantified, Debtor was deprived of the use of her vehicle for fifteen months, which limited her opportunities to pursue employment and created general inconvenience in her daily living. Debtor had numerous financial difficulties and limited options to obtain alternative transportation. Although the Court is unable to quantify her losses, they were not insignificant.
As discussed above, Carr is an unsophisticated lender who obtained possession of the Solara pre-petition with Debtor's consent. It is unlikely that Carr will make another vehicle loan to anyone. Therefore one of the purposes of punitive damages — deterrence — is inapplicable in this case. Nevertheless, once Debtor filed for bankruptcy he was under a duty to promptly return the vehicle. Having considered the above factors, punitive sanctions of $500 are imposed against Carr.
For all the reasons stated above, I conclude that Debtor is entitled to compensation for actual damages in the amount of $2500 and punitive damages in the amount of $500. An appropriate order follows.
Id.
