Wcislak v. Northern Ohio Investment Co. (In Re Wcislak), 446 B.R. 827

Debtors filed a Chapter 13 petition in 2008; trustee moved to dismiss for plan infeasibility and payment delinquencies, tax refund retention, and mortgage nonpayment to defendant.
In August 2010, the court granted the trustee’s motion to dismiss and issued a § 109(g) 180-day bar on refiling.
In January 2011, after dismissal, plaintiff filed an adversary proceeding alleging stay violation by defendant and sought damages under § 362(k).
The court issued a Show Cause Order for dismissal due to lack of an underlying bankruptcy case, and ultimately dismissed the adversary proceeding.
Court concluded it has discretion to exercise jurisdiction after dismissal but declined to hear the case, citing lack of injury and improper use of § 362 stay remedies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the plaintiff may pursue an adversary proceeding after dismissal	Wcislak contends the court retains jurisdiction to adjudicate stay violations.	Court has discretion but dismissal is appropriate post‑dismissal.	Court declined to exercise jurisdiction; proceeding dismissed.
Whether damages under § 362(k) require actual injury after dismissal	Plaintiff seeks substantial damages for stay violation.	Requires actual injury; single technical communication insufficient.	Plaintiff failed to show actual injury; damages not recoverable.
Whether § 349(b) effects after dismissal restore rights and permit new litigation	Stays and remedies may be pursued notwithstanding dismissal.	§ 349 restores prepetition rights only when appropriate, not to support this claim.	Court found jurisdiction not mandatory and chose not to exercise it.
Whether the 109(g) 180-day bar and debtor conduct justify dismissal and bar re-litigation	Dismissal does not bar future related proceedings.	Dismissal for willful noncompliance bars further bankruptcy relief and related actions.	Dismissal justified; plaintiff barred from pursuing this adversary.

In re Plata, 958 F.2d 918 (9th Cir. 1992) (reversal of effects and restoration of property rights upon dismissal under § 349)
In re Webb Mtn, LLC, 420 B.R. 418 (Bankr.E.D. Tenn. 2009) (§ 362 stay damages; post‑dismissal context considerations)
In re Porges, 44 F.3d 159 (2d Cir. 1995) (bankruptcy jurisdiction after dismissal; discretion to hear related matters)
In re Querner, 7 F.3d 1199 (5th Cir. 1993) (§ 349 discretion and jurisdiction post‑dismissal)
Johnson v. Smith (In re Johnson), 575 F.3d 1079 (10th Cir. 2009) (damages for stay violations may be pursued to vindicate stay authority)
In re Russell, 441 B.R. 859 (Bankr. N.D. Ohio 2010) (actual injury requirement for § 362(k) damages)
Archer v. Macomb County Bank, 853 F.2d 497 (6th Cir. 1988) (actual injury element for damages under stay provisions)
In re LHD Realty Corp., 726 F.2d 327 (7th Cir. 1984) (stay provisions and court’s cognizable scope)
In re Policy Realty Corp., 242 B.R. 121 (S.D.N.Y. 1999) (interpretation of § 362 stay relief scope)
Petroleum & Franchise Funding v. Dhaliwal, 688 F.Supp.2d 844 (E.D. Wis. 2010) (stay violation analyses in bankruptcy context)
In re Davidson Lumber Co., Inc., 24 B.R. 49 (Bankr. S.D. Fla. 1982) (effects of stay and remedies discussion)
In re Carraher, 971 F.2d 327 (9th Cir. 1992) (jurisdiction after dismissal specifics)