498 B.R. 64
Bankr. D.S.C.2013Background
- Ronald J. Davis Jr., a Georgia-licensed attorney proceeding pro se, filed a Chapter 7 petition on December 5, 2011 and an adversary complaint on January 3, 2013 alleging (1) violation of the automatic stay, (2) conspiracy, and (3) attorney fees against several counsel who had litigated related matters (FDIC-R action; Cobb County action).
- Miller & Martin (Kohler, Lee) represented the FDIC in the FDIC-R action; Cohan and Cohan Law Group represented the Taylors in the FDIC-R action and other suits involving Davis.
- Davis alleges he mailed notice of his bankruptcy on December 7, 2011, and that Miller & Martin filed a motion to amend the FDIC-R complaint to add fraud claims against him on December 9, 2011 (later withdrawn as to Davis on February 6, 2012).
- Davis pleads, largely "upon information and belief," that Cohan notified Kohler of the bankruptcy, interfered with settlement talks, and filed unspecified papers in the FDIC-R and Cobb County actions in violation of the automatic stay.
- Defendants moved under Fed. R. Civ. P. 12(b)(6). The court evaluated allegations under the Iqbal/Twombly plausibility standard and section 362 automatic-stay framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants violated the automatic stay by filing/continuing litigation after Davis's petition | Davis: mailed notice Dec. 7; Miller & Martin filed amendment Dec. 9 and other stay-violative filings; he suffered damages | Defendants: notice allegedly defective; Cohan made no specific stay-violative filings; general denials | Miller & Martin: stay-violation claim survives (sufficiently pleaded). Cohan defendants: dismissal for lack of specificity (Iqbal/Twombly) and failure to identify stay-violative acts |
| Whether notice deficiency (missing last 4 TIN digits) bars monetary recovery under §342/§362 | Davis: mailed notice was effective and defendants had actual knowledge | Defendants: notice defective under §342(c)(1) so no monetary penalty under §362(k) | Court: declined to dismiss on that basis—notice to attorneys and court notice can be effective even if debtor-provided notice lacked the last 4 TIN digits; factual issues remain |
| Whether defendants can be liable for conspiracy to violate the automatic stay | Davis: alleges Cohan conspired with Kohler to amend complaint to allege non-dischargeable fraud | Defendants: conspiracy allegation is conclusory and insufficiently pleaded; conduct alleged does not fall within stay-proscribed acts | Dismissed: conspiracy claim dismissed for failure to plausibly plead an agreement and because alleged conduct does not constitute a stay violation; also state-law conspiracy dismissed for failure to plead separate damages |
| Whether Davis (a lawyer proceeding pro se) can recover attorney's fees as a separate cause of action | Davis: seeks attorney fees as a claim | Defendants: request for fees is not a standalone cause of action; pro se attorneys cannot recover counsel fees | Dismissed: attorney-fees "cause of action" dismissed; pro se attorney not entitled to attorney-fee award |
| Whether leave to amend should be granted | Davis: asked for leave to amend if dismissal granted | Defendants: oppose; note plaintiff failed to specify new facts or identify filings | Denied: court refused leave to amend because Davis gave no particulars and failed to identify the Cohan filings at hearing or in response |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; legal conclusions not presumed true)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must nudge claims from conceivable to plausible)
- Kay v. Ehrler, 499 U.S. 432 (1991) (pro se attorney cannot recover attorney fees)
- In re Smith, 185 B.R. 871 (Bankr. M.D. Fla. 1994) (§362(a)(6) language is broad; protects debtors against creditor coercion)
- In re Davis, 247 B.R. 690 (Bankr. N.D. Ohio 1999) (general rule that one party is not liable for another party’s stay violation absent legal relationship to impute liability)