America's Servicing Co. v. Schwartz-Tallard (In Re Schwartz-Tallard)

I concur in the majority’s conclusion that 11 U.S.C. § 362 (k) has an unambiguous meaning which permits Schwartz-Tal-lard to recover the attorney’s fees she incurred in defending against ASC’s appeal. Maj. Op. at 1097-99. In my view, however, this should be the beginning and end of our analysis. I am troubled that the majority proceeds to speculate about “Congress’ plan” in enacting the automatic-stay provision of the Bankruptcy Code in reliance on King v. Burwell, — U.S. —, 135 S.Ct. 2480 , 192 L.Ed.2d 483 (2015). Maj. Op. at 1100-01. Given the majority’s acknowledgment that § 362(k) is unambiguous, this discussion strikes me as unnecessary. We should always bear in mind the “cardinal principle of judicial restraint”: “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. DEA, 362 F.3d 786, 799 (D.C.Cir.2004) (Roberts, J., concurring in part and concurring in the judgment).

“If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 ,…

dissenting:

I prefer the result reached by the majority, which reads 11 U.S.C. § 362 (k) as if it were a typical attorneys’ fees provision that-shifts the fees incurred in bringing the damages action to a prevailing plaintiff. Because courts are familiar with this sort of fee shifting statute, such a reading makes it simpler for bankruptcy courts and district courts to apply § 362(k). But the ordinary tools of statutory interpretation compel me to conclude that this interpretation is not the best reading of the statutory text. Because bur job is to do our best to interpret the statute as Congress wrote it, we should adhere to the better reading set forth in Sternberg v. Johnston, 595 F.3d 937 (9th Cir.2010).

“The starting point in discerning congressional intent is the existing statutory text.” Lamie v. U.S. Trustee, 540 U.S. 526, 534 , 124 S.Ct. 1023 , 157 L.Ed.2d 1024 (2004). The statutory text here states, “[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)(1). As we acknowledged in Sternberg…

Opinion by Judge WATFORD; Concurrence by Judge BEA; Dissent by Judge IKUTA.

OPINION

When a debtor files for bankruptcy, the Bankruptcy Code imposes an automatic stay on virtually all actions against the debtor to collect pre-petition debts. 11 U.S.C. § 362 (a). To deter violations of the automatic stay and to provide redress for those that do occur, the Code permits injured debtors to sue for “actual damages, including costs and attorneys’ fees.” § 362(k). With one exception, courts have uniformly held that this provision authorizes an award of all attorney’s fees reasonably incurred to remedy a stay violation, including fees incurred in prosecuting the damages action that § 362(k) authorizes. See, e.g., In re Repine, 536 F.3d 512, 522 (5th Cir.2008); In re Duby, 451 B.R. 664, 674-77 (1st Cir. BAP 2011).

The one exception is our decision in Sternberg v. Johnston, 595 F.3d 937 (9th Cir.2010). There, we held that § 362(k) allows a debtor to recover only those fees incurred to end the stay violation itself, not the fees incurred to prosecute a damages action. Id. at 947. Thus, under Stem-berg, once the stay violation has ended, no fees incurred after that point may be recovered.…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IN RE IRENE MICHELLE SCHWARTZ- No. 12-60052

TALLARD,

Debtor, BAP No. 11-1429

AMERICA’S SERVICING COMPANY,

Appellant, OPINION

v.

IRENE MICHELLE SCHWARTZ-

TALLARD,

Appellee.

Appeal from the Ninth Circuit Bankruptcy Appellate Panel Kirscher, Pappas, and Dunn, Bankruptcy Judges, Presiding

Argued and Submitted En Banc June 17, 2015—San Francisco, California

Filed October 14, 2015

Before: Sidney R. Thomas, Chief Judge, and Stephen Reinhardt, Diarmuid F. O’Scannlain, M. Margaret McKeown, William A. Fletcher, Richard C. Tallman, Carlos T. Bea, Milan D. Smith, Jr., Sandra S. Ikuta, Paul J. Watford, and Andrew D. Hurwitz, Circuit Judges. IN RE SCHWARTZ-TALLARD

Opinion by Judge Watford; Concurrence by Judge Bea; Dissent by Judge Ikuta

SUMMARY*

Bankruptcy

Affirming the judgment of the Bankruptcy Appellate Panel, the en banc court held that 11 U.S.C. § 362(k) authorizes an award of attorney’s fees reasonably incurred in a debtor’s prosecution of a suit for damages to provide redress for a violation of the automatic bankruptcy stay.

When a debtor…