Chapter 13 debtor Judith A. McMullen challenges a bankruptcy court ruling that the postpetition complaints lodged against McMullen, in the Massachusetts Superior Court and with the Massachusetts Division of Registration for Real Estate Agents, by the four defendants-appellees did not contravene the automatic stay provisions of Bankruptcy Code § 362. Discerning no error, we affirm.
I
BACKGROUND
The case stems from an acrimonious real estate transaction which originated in *323 1997, when Lori Sevigny entered into an agreement with Lester Pryor, a trustee employed by the estate of one Mary Perry, to purchase a parcel of real estate located in Rochester, Massachusetts. McMullen, a licensed real estate agent, acted as the broker for the transaction, and accepted a $10,200 deposit from Lori Sevigny and her husband Richard. Subsequently, the sale fell through, and eventually the property was purchased by a corporation controlled by McMullen’s father. The deposit was never returned to the Sevignys, and McMullen insists that she did not have possession of it.
In January 2000, McMullen initiated chapter 7 proceedings. Roger Stanford, Esq., the attorney for the Sevignys, filed a nondischargeability complaint in the chapter 7 case, alleging that McMullen fraudulently retained their $10,200 deposit. In her amended creditor matrix, McMullen listed the Sevignys as creditors, but incorrectly listed their address as 723 Snipatuit Road, rather than 732. On June 13, 2000, Stanford sent the Sevignys a letter, explaining that McMullen had submitted an answer to their nondischargeability complaint, but that her bankruptcy case was being converted from chapter 7 to chapter 13. The Sevignys mistakenly understood the letter to mean that McMullen was withdrawing her chapter 7 petition, thus terminating her bankruptcy case, but that she might commence a new chapter 13 proceeding in the future. For the next six weeks the Sevignys repeatedly — though unsuccessfully — attempted to contact Stanford to confirm their understanding of the status of the McMullen bankruptcy proceeding.
On July 10, 2000, a formal notice of the conversion of the McMullen case was mailed to the Sevignys by the bankruptcy court, and Stanford dismissed the nondis-chargeability complaint. Thereafter, the Sevignys discharged Stanford as their attorney, purportedly for failing to keep them informed about litigation matters. Stanford nonetheless failed to withdraw from the bankruptcy court proceeding. The Sevignys consulted briefly with another bankruptcy lawyer, but did not retain an attorney.
Instead, on July 27, 2000, Lori Sevigny submitted a complaint against McMullen before the Massachusetts Division of Registration for Real Estate Agents, claiming that the $10,200 deposit had been fraudulently retained by McMullen. Lori provided the Board with a copy of the 1997 purchase and sales agreement expressly designating McMullen as the custodian of the deposit, as well as a copy of her canceled check for the deposit, which listed an account number and had been endorsed by the seller, Lester Pryor, but which was not endorsed by McMullen. Absent any evidence that McMullen had ever had the deposit, the Division dismissed the Sevigny complaint.
In September 2000, Curtis Perry (hereinafter: “Perry”), Mary Perry’s son and heir, who had held an interest in the Rochester property, decided to assist the Sevignys in reclaiming their deposit by procuring an affidavit from Lester Pryor, supporting Perry’s suspicion that McMul-len had (i) shortchanged his mother’s estate by selling the property to McMullen’s father’s corporation for an amount less than the Sevignys’ offer, and (ii) wrongfully retained the Sevignys’ $10,200 deposit. Perry, and his friend and attorney John E. Williams, procured the Pryor affidavit, which asserted that McMullen (and not Pryor) had received and appropriated the deposit to her own use.
On November 6, 2000, the Sevignys retained a new attorney, Michael McGlone, Esq., who commenced suit against McMul-len in state superior court to recover the *324 $10,200. Both Perry and Williams were aware of McMullen’s pending chapter 13 case and the resultant automatic stay, but neither informed Richard Sevigny or McGlone. Five weeks later, as soon as McMullen had notified them of the automatic stay, the Sevignys promptly dismissed the superior court complaint.
On December 1, 2000, McMullen commenced the instant adversary proceeding, alleging that (i) the Sevignys violated the automatic stay by submitting a complaint with the Division of Registration for Real Estate Agents, and (ii) Perry and Williams had aided and abetted the Sevignys, in filing the collection action in the superior court notwithstanding the automatic stay. Following trial, the bankruptcy court entered its unpublished decision, granting judgment for the defendants on all counts. On appeal, the district court affirmed the bankruptcy court, without opinion, and McMullen now appeals.
II
DISCUSSION
A. The Complaint Submitted to the Division of Registration
McMullen first contends that the bankruptcy court misapplied Bankruptcy Code § 362(b)(4) in determining that the complaint submitted by the Sevignys before a state regulatory agency — viz., the Board of Registration — could never, as a matter of law, constitute a violation of the automatic stay. She cites authority which states that the bankruptcy court must assess each state agency proceeding on a case-by-case basis in order to determine, inter alia, (i) whether the state places such importance upon the particular regulatory scheme at issue as to outweigh the public policy objectives sought to be served by the automatic stay, and (ii) whether the creditor knew of the pending bankruptcy case, yet either intentionally or in bad faith sought to employ the regulatory proceeding as an end-run to collect its disputed claim outside of bankruptcy. McMullen suggests that the bankruptcy court in this case failed to undertake the requisite fact-specific inquiry.
Following an intermediate appeal to the district court, the findings of fact arrived at by the bankruptcy court are independently reviewed by the court of appeals for clear error; its conclusions of law
de novo. See In re Charlie Auto Sales, Inc.,
Subsection 362(a) of the Bankruptcy Code ordains that a bankruptcy petition shall operate as an automatic stay of “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor.” Bankruptcy Code § 362(a)(1); 11 U.S.C. § 362(a)(1). By thus safeguarding the debtor estate from piecemeal dissipation, the automatic stay efficiently ensures that the assets remain within the exclusive jurisdiction of the bankruptcy court pending their orderly and equitable distribution among the creditors, better enabling the debtor’s “fresh start.”
See In re Jamo,
Nonetheless, although the Code accords broad scope to the automatic stay, it expressly excepts certain postpetition proceedings from the operation of the stay, including any action brought before a governmental regulatory agency to enforce its police or regulatory powers.
See
Bankruptcy Code § 362(b)(4), 11 U.S.C. § 362(b)(4). This exception discourages debtors from submitting bankruptcy petitions either primarily or solely for the
*325
purpose of evading impending governmental efforts to invoke the governmental police powers to enjoin or deter ongoing debtor conduct which would seriously threaten the public safety and welfare 0e.g., environmental and/or consumer protection regulations).
See In re First Alliance Mortgage Co.,
To that end, the courts have devised two interrelated, fact-dominated inquiries — the so-called “public policy” and “pecuniary purpose” tests — for assessing whether a particular governmental proceeding comes within the subsection 362(b)(4) exception.
See In re Spookyworld, Inc.,
Tested against these criteria, there can be little doubt that the Board proceeding brought against McMullen in the instant case is excepted from operation of the automatic stay by virtue of Bankruptcy Code § 362(b)(4). The complaint alleged that McMullen, acting as a licensed real estate broker, improperly retained the cash deposit made by the Sevignys during the course of the aborted real estate transaction. State law expressly empowers the Board to suspend, revoke, or refuse to renew a real estate broker license where the broker has “failed, within a reasonable time, to account for or remit any moneys belonging to others which have come into his possession as a broker or salesman.” Mass. Gen. Laws ch. 112, § 87AAA(d); see 254 C.M.R. § 3.00(10)(a) (“[A] broker shall be responsible for such money until the transaction is either consummated or terminated, at which time a proper account and distribution of such money shall be made.”).
Consequently, we next inquire whether subsection 362(b)(4) contemplates that the state power to regulate the licensure of real estate brokers is designed to advance a sufficiently important public policy so as to trump the competing interests fostered by the automatic stay. The state power of licensure, which safeguards the public from wrongful future conduct of corrupt or incompetent professionals, falls squarely within the purview of the subsection 362(b)(4) exception to the automatic stay.
See
S.Rep. No. 95-989, at 52 (1978),
reprinted in
1978 U.S.C.C.A.N. 5838 (“[Section 362(b)(4) ] excepts ... governmental units ... suing a debtor to prevent or stop violation of fraud, environmental protection, [or]
consumer protection.”)
(emphasis added);
see also, e.g., Thomassen v. Div. of Med. Quality Assurance (In re Thomassen),
Although it is conceivable that a state might assert a public-policy purpose in order to mask some improper pecuniary aim,
see In re North,
Citing
In re Byrd,
Byrd is readily distinguishable. First, the Byrd complaint involved a criminal proceeding, which implicated unique federal-court abstention issues. See id. at 250 (“We maintain the ‘deep conviction that federal bankruptcy courts should not invalidate the results of state criminal proceedings.’ This rule reflects a ‘fundamental policy against federal interference with state criminal prosecutions.’ ”) (citations omitted).
Even more importantly, the second prong of the
Byrd
rule — whether or not it offers a sound interpretation of subsection 362(b)(4) — is mere dicta, since the complainants in
Byrd
had lodged their complaint
before
the debtor filed for bankruptcy, and the court held that the proceedings on the complaint were
not
stayed.
Id.
at 256.
3
Thus,
Byrd
does not support the McMullen contention that postpetition pro
*328
ceedings initiated by a private party are outside the subsection 362(b)(4) exception to the automatic stay.
See Municipality of San Juan v. Rullan,
The last statement in
Byrd
is not only dicta, but in our view, overbroad. A private party’s reporting of wrongful conduct to governmental (regulatory authorities is neither the commencement of a proceeding under subsection 362(a)(1), nor necessarily an “act to collect” under subsection 362(a)(6). Although we broadly construe the automatic stay in many contexts, the same sound public policy reasons which undergird the subsection 362(b)(4) exception counsel against any rule which might dissuade private parties from providing governmental regulators with information which might require enforcement measures to protect the public from imminent harm. McMullen surmises that the Sevig-nys’ Board complaint was motivated by their desire to force McMullen into repaying the alleged debt, but the Sevignys made no postpetition threat to file a complaint which might constitute an “act to collect” under § 362(a)(6),
cf. In re Diamond,
Additionally, McMullen argues that even if these sorts of professional licensing proceedings normally are not stayed by subsection 362(b)(4), the instant case differs in that the Sevignys submitted their complaint in
bad faith.
Although we have yet to decide this issue on its merits, we have noted in dicta the tenuousness of the arguments for engrafting such a “bad faith” exception onto subsection 362(b)(4), noting the emergent rule that “bankruptcy courts should not inquire into the ‘legitimacy’ of ongoing administrative enforcement proceedings in determining whether the police power exception applies to them.”
See Spookyworld,
In any event, even if we were to decide, as a matter of law, that a “bad faith” exception is available, the record facts in the instant case amply warrant the bankruptcy court finding of fact that the Sevig-nys did
not
submit their Board complaint in bad faith. Whether a party has acted in bad faith constitutes a quintessential issue of fact, which must be determined by the
*329
factfinder following an examination of the totality of the circumstances.
See Official Unsecured Creditors Comm. v. Stern (In re SPM Mfg. Corp.),
McMullen points to the following record evidence, as compelling a finding that the Sevignys acted in bad faith, inter alia: the Sevignys (i) did not inform the Board regarding McMullen’s pending chapter 13 case; (ii) falsely alleged before the Board that McMullen (rather than Lestor Pryor) had received and held their deposit; and (iii) gave the Board only the 1997 purchase and sales agreement, which named McMullen as the escrow agent, and did not submit the 1998 superseding agreement, which named a different agent. None of the record evidence cited by McMullen even remotely suffices to establish clear error.
First, the bankruptcy court explicitly held that the Sevignys did not conceal the McMullen bankruptcy case from the Board. The Sevignys testified at the bench trial that the reason they did not inform the Board of the McMullen bankruptcy was that they believed at the time they filed their Board complaint that the McMullen bankruptcy proceedings were no longer active. The Sevignys also testified that: (i) they did ri$t understand how their deposit, which McMullen simply held in escrow, could become property of her bankrupt estate; 5 (ii) they interpreted their attorney’s June 13, 2000 notification — that the McMullen chapter 7 case was being converted to chapter 13 — to mean that the McMullen bankruptcy case was being withdrawn, viz., that it was being terminated; (iii) they were unable to contact their attorney after receiving his letter to ask him followup questions, and eventually had to discharge him; (iv) they received no further notices from the bankruptcy court, possibly because the creditor matrix in the McMullen bankruptcy case did not list their correct address; and (v) neither Richard not Lori Sevigny is an attorney, nor are they otherwise knowledgeable about bankruptcy law or terminology.
Second, the Sevignys testified that at the time they filed their complaint with the Board they did not know that Lester Pryor had their deposit. The reverse side of the deposit check did reflect that Pryor had endorsed the check, and listed an account number, but the Sevignys had no way of knowing that the listed bank ac *330 count was that of Pryor, and they assumed that Pryor might have endorsed the check and that McMullen had deposited it into the escrow account without adding her own endorsement. Indeed, the purchase and sales agreement designated McMullen as the custodian of the deposit.
Finally, Richard Sevigny testified that he submitted the original purchase and sales agreement to the Board in the belief that it contained the same terms as the superseding purchase and sales agreement, that he had not realized that the superseding agreement contained the new term which designated a “United Realty” as the escrow agent, and hence that he had not acted with any intent to conceal that provision from the Board.
As each of these findings turns primarily upon the factfinder’s assessment of the credibility of the Sevignys’ plausible explanations, we can discern no clear error on the present record.
See Carp,
B. The Superior Court Action
1. Willfulness of the Sevignys’ Violation
McMullen next contends that the bankruptcy court erred in holding that the Sevignys’ state superior court complaint against McMullen was merely a technical violation of the automatic stay, rather than a willful violation compensable under Bankruptcy Code § 362(h). Once again we must disagree.
Under Bankruptcy Code § 362(h), a violation of the automatic stay must be “willful” or the violator cannot be held liable for damages. Bankruptcy Code § 362(h); 11 U.S.C. § 362(h). Generally speaking, a violation will be found “willful” if the creditor’s conduct was intentional (as distinguished from inadvertent), and committed with knowledge of the pendency of the bankruptcy case.
See Fleet Mortgage Group, Inc. v. Kaneb,
The determination as to whether a violation of the automatic stay was “willful,” as defined in subsection 362(h), poses a factual issue, which we review only for clear error.
See In re Campion,
2. The “Aiding and Abetting” Claims
As her final claim on appeal, McMullen contends that the bankruptcy court erred in concluding that subsection 362(h) did not permit the McMullen claims for damages against Perry and Williams, wherein she alleged that Perry and Williams knowingly aided and abetted the Sevignys in filing their superior court complaint. As the instant claim involves an issue of statutory interpretation, we review the bankruptcy court decision
de novo. See Charlie Auto Sales,
The bankruptcy court correctly noted that McMullen failed to cite any case authority which specifically supported her contention that subsection 362(h) permits the imposition of damages against a person who aids and abets another in violating the automatic stay. None of the McMullen citations even mentions the phrase “aiding and abetting,” nor sets forth or analyzes the elements of such a derivative claim under subsection 362(h). 7
Moreover, none of the McMullen citations deals with the pertinent question on appeal: can a defendant be found liable in damages under subsection 362(h) for aiding and abetting a codefendant’s mere technical violation of the automatic stay? Instead, the cases she cites involved groups of persons who
jointly
partook in willful and often egregious violations of the automatic stay, thereby rendering them directly liable — -rather than derivatively liable as aiders and abettors — for the resulting subsection 362(h) damages.
See Tsafaroff v. Taylor (In re
Taylor),
By contrast, the bankruptcy court noted that the Sevignys engaged in a technical violation of the automatic stay and that, “[ajbsent such a [willful and compensable] *332 violation [by the Sevignys], the alleged derivative liability of Williams and Perry, if it exists, is lacking a necessary condition precedent.” McMullen has elected not to address this particular matter on appeal, choosing instead to focus exclusively upon whether Perry and Williams had the requisite knowledge of the automatic stay and substantially assisted the Sevignys by arranging to procure the affidavit of Lester Pryor.
A plaintiff normally establishes a defendant’s liability as an aider and abettor by demonstrating three elements: (1) the primary actor committed a wrongful act that causes injury; (2) the aider and abettor was aware of his role in the overall wrongful activity when he provided the assistance; and (3) the aider and abettor knowingly and substantially assisted the primary actor’s wrongful act.
See Temporomandibular Joint Implants Recipients v. Dow Chem. Co. (In re Temporomandibular Joint Implants Prods. Liab. Litig.),
We need not and do not determine whether an “aiding and abetting” claim is cognizable under subsection 362(h). We simply hold that, even if such a claim were cognizable, McMullen utterly failed to demonstrate her entitlement to relief on the record.
Affirmed.
Notes
. McMullen cites cases which hold that a regulatory board or commission may award civil monetary penalties against a debtor without offending the automatic stay, provided the enabling statute or regulation so ordains,
see, e.g., Poule v. Registrar of Contractors of State of Cal. (In re Poule),
. The McMullen citation to
In re Massenzio,
. The McMullen citation to
In re Pincombe,
. In re Diamond held that a creditor violated the automatic stay by informing the debtor, during settlement negotiations in a nondis-chargeability proceeding in the bankruptcy court, that the creditor immediately would file a complaint with the state real estate commission to revoke the debtor’s real estate license unless the debtor agreed to settle. Id. at 227 (finding that creditor’s threat constituted "impermissible 'coercion or harassment' ” under § 362(a)(6)). The instant case is factually distinguishable, since (1) the Sevignys never expressly conditioned their filing of a Board complaint on McMullen’s refusal to repay the deposit; and (2) In re Diamond did not involve a creditor’s action in commencing a proceeding otherwise exempt from the automatic stay pursuant to subsection 362(b)(4).
. In some circumstances, courts have held that a transgression of the automatic stay, undertaken in the well-grounded and "good faith" belief that the stay was inapplicable to the disputed property, cannot support a claim for damages under Bankruptcy Code § 362(h).
See, e.g., Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.),
. As but one instance, McMullen notes that the bankruptcy court mailed notices to the Sevignys, yet does not dispute the evidence that the Sevignys’ listed address was incorrect, and that the Sevignys asserted that they did not receive the notices.
. To the extent that it is not an expression of federal bankruptcy law on this issue, the McMullen citation to Massachusetts “aiding and abetting” law is unhelpful.
See Matter of Flynn,
. Without citation to authority, McMullen nonetheless implies that Perry and Williams had an affirmative duty to inform the Sevig-nys of the automatic stay. Moreover, McMul-len has not suggested that Perry and Williams had any form of fiduciary relationship with the Sevignys which would have given rise to such an obligation. Nor have we found case support for this proposition.