Walsh
Walsh v. Beard's Quality Nut Co. (In re Walsh)
Opinion
Lead Opinion
Jaroslovsky, J.
Memorandum of Decision
This court awarded debtor Dennis Walsh a large judgment against defendant Rodney Beard pursuant to section 362(h) of the Bankruptcy Code based on Beard’s serious and repeated violations of the automatic stay. 1 The judgment was affirmed by the district court and the Court of Appeals. Walsh’s request for attorneys’ fees on appeal has now been referred to this court pursuant to Circuit Rule 39-1.8.
The issue of whether section 362(h) mandates an award of attorneys’ fees on appeal to a successful debtor has been recognized but not resolved by the Court of Appeals. In re Del Mission Limited, 98 F.3d 1147 , 1154 n 7 (9th Cir.1996). However, at least two district courts sitting as appellate courts have found that the mandatory attorneys’ fees provision of section 362(h) includes fees on *950 appeal. In re Fingers, 170 B.R. 419, 434-35 (S.D.Cal.1994); In re Cascade Roads, Inc., 71 A.F.T.R.2d 93 -1105, 1993 WL 461297 (W.D.Wash.1993), rev’d on other grounds 34 F.3d 756 (9th Cir.1994). But see FHLMC v. McCormack, 1996 WL 753938 (D.N.H.1996).
Statutes providing for the recovery of attorneys’ fees by the prevailing party in the trial court are generally construed…