Schwartz-Tallard v. America's Servicing Co. (In Re Schwartz-Tallard)
473 B.R. 340
9th Cir. BAP2012Background
- Debtor Irene Schwartz-Tallard filed a Chapter 13 petition; ASC serviced the loan secured by her Henderson, Nevada home.
- ASC filed a stay-relief motion (claiming January–February 2009 payments were missed); Debtor was not informed and the stay was terminated on April 6, 2009.
- Debtor produced January–February 2009 payment records; ASC admitted an error after reviewing check numbers.
- Debtor moved to reinstate the stay on May 6, 2009; the court orally granted reinstatement on May 13, 2009; ASC did not appear.
- ASC caused a trustee’s foreclosure sale on May 20, 2009; the stay was later reinstated by order on June 3, 2009; Debtor sought sanctions for stay violations under § 362(k).
- Bankruptcy court found ASC violated the stay and Rule 9011; awarded damages and ordered reconveyance; ASC appealed to the District Court, which remanded certain issues for Rule 9011 procedures and fee amounts; on remand the bankruptcy court held an evidentiary hearing and entered the final sanctions/fees posture before this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sternberg bars appellate fees under § 362(k). | Schwartz-Tallard argues Sternberg does not prohibit appellate fees under § 362(k). | ASC argues Sternberg bars recovery of appellate fees as not “actual damages.” | Sternberg does not bar appellate fees; reversal and remand for 362(k) award possible. |
| Whether Rule 9011 supports appellate fees. | Schwartz-Tallard contends Rule 9011 may support appellate fees on remand. | ASC argues Rule 9011 is inapplicable due to lack of proper procedural notice. | No abuse of discretion; Rule 9011 not applicable for appellate fees in this record. |
| Whether § 105(a) sanctions authorize appellate fees. | Schwartz-Tallard argues § 105(a) sanctions could award appellate fees. | ASC argues § 105(a) not applicable because other authorities exist. | Not abused; § 105(a) sanctions not warranted where § 362(k) provides remedy. |
Key Cases Cited
- Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010) (limits on appellate fees under § 362(k) when pursuing damages action)
- In re Walsh, 219 B.R. 873 (9th Cir. BAP 1998) (damages on appeal may be recoverable as stay-enforcement damages)
- In re Dawson, 390 F.3d 1139 (9th Cir. 2004) (stay purposes; breathing spell vs. enforcement actions)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (U.S. 1994) (American Rule and statutory exceptions for fees)
- Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240 (U.S. 1975) (fee shifting under statutes may be appropriate)
- Chambers v. NASCO, Inc., 501 U.S. 32 (U.S. 1991) (bad faith sanctions authority for attorneys’ fees)
- Deville v. Miller (In re Deville), 280 B.R. 483 (9th Cir. BAP 2002) (principles for invoking § 105(a) sanctions; due process)