In re Bourke

543 B.R. 657, 2015 Bankr. LEXIS 4379, 2015 WL 9459789
CourtUnited States Bankruptcy Court, D. Montana
DecidedDecember 24, 2015
DocketCase No. 15-60785-7
StatusPublished
Cited by1 cases

This text of 543 B.R. 657 (In re Bourke) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Bourke, 543 B.R. 657, 2015 Bankr. LEXIS 4379, 2015 WL 9459789 (Mont. 2015).

Opinion

MEMORANDUM OF DECISION

Honorable Ralph-B. Kirscher, Chief U.S. Bankruptcy Judge

At Butte in said District this 24th day of December, 2015.

Pending in this Chapter 7 case is the amount of damages to be awarded to the Debtor Lynsey Bourke (“Lynsey” or “Debtor”) against Missoula Bone & Joint, LLC (“Missoula Bone & Joint”) for- its willful violations of the automatic stay under 11 U.S.C. §.362(k)(l), when MissoulaBone .& Joint continued sending -Lynsey' collection letters after being served with notice of the filing of Lynsey’s bankruptcy, petition and the automatic stay., . This Court granted Debtor’s Motion for Sanctions for Violation of the Automatic Stay (“Debtor’s Motion”) (Document No. -17) against Missoula Bone & Joint by Order (Doc. 25) entered on November 17, 2015, after Missoula Bone & Joint failed to file a response and request for hearing on Debt- or’s Motion within the allowed notice period, after service - of Debtor’s Motion. A hearing on the amount of damages to be awarded to the Debtor for Missoula Bone & Joint’s stay violations was held after notice at Missoula on December 3, 2015. Lynsey appeared and testified, represented by attorney Nik G. Geranios (“Geranios”) of Geranios Law, PLLC, of Missoula. No appearance was made at the hearing on behalf of Missoula Bone & Joint. Exhibits (“Ex.”) 1, 2, 3, 4, 5, and 6 were admitted into evidence. At the conclusion of the Debtor’s case-in-chief the Court granted Debtor’s attorney time to submit an affidavit of attorney’s fees and costs incurred in relation to Debtor’s Motion, and took the matter under advisement. Geranios filed his affidavit of attorney’s fees on December 7, 2015, including billing records showing that he performed tasks related to Debtor’s Motion dating from 10/05/2015 to 12/07/2015, totaling $1,700.00 in professional fees. The Court has reviewed Geranios’ billing records, together with the record and applicable law. This matter is ready for decision. For the reasons set forth below the Court will enter Judgment against Missoula Bone & Joint in the total amount of $2,649.46 for its willful violations of the stay under' § 362(k)(l).

This Court has jurisdiction of this bankruptcy case under 28 U.S.C. § 1334(a). Debtor’s Motion for Sanctions for violations of the automatic stay is a core proceeding under 28 U.S.C. § 157(b)(2).

FACTS & PROCEDURAL HISTORY

Lynsey is a recent graduate .of the University of Montana (“U of M”). Currently she is employed in Missoula as an office manager, and in addition as an adjunct professor at U of M. She testified that she thought that, with her level of education, she would never be in a condition where she had to file bankruptcy.

However, she suffered two injuries which required a surgery and therapy. She testified that all of her paychecks [661]*661were going to make payments, and then she lost her job. She' received collection demand letters from Missoula Bone & Joint and other creditors, and she testified that she felt under “incredible stress” for approximately one year.

Lynsey testified that she filed bankruptcy in order to reduce stress and get a fresh start. She filed her Chapter 7 bankruptcy petition on August 20, 2015, with her Schedules and Statement of Financial Affairs. Ex. 1 is Debtor’s Schedule F showing “Bone & Joint” as a creditor with an unsecured nonpriority claim in the amount of $2,500.00, and an address of 2360-Mullan Road in Missoula, MT 59808.

The notice of commencement of the case, meeting of creditors, deadlines, and a warning to creditors not to collect a debt take certain actions-or risk being penalized, was sent to creditors on August 22, 2015, including to “Bone & Joint” at 2360 Mullan Road., Missoula, MT 59808-1811. The notice, Ex. 2, informs creditors they may not take certain action, such as' “contacting the debtor by telephone, mail or otherwise to demand repayment:...” Lynsey testified that her attorney advised her that the filing of her bankruptcy petition would stop the collection demands. However, they did not stop.

Lynsey testified that she received Ex. 3, a “Patient Statement” from Missoula Bone & Joint at “2360 Mullan Road, STE C, Missoula, MT 59808-1811” dated 09/22/2015, requesting payment of' a total of $340.00 for patient visits in June and July of 2015, on September 22,2015. Lynsey testified that she had been told by her attorney that the demand letters for her prepetition debts would stop after she filed bankruptcy and that.she was very concerned when she continued to receive bills. She called her attorney and asked .about Ex. 3. Ex. 4 is a second patient statement to Lynsey from Missoula Bone & Joint dated 10/13/2015, which also asks for payment of the $340 in prepetition-debt.

Debtor’s attorney Geranios offered Ex. 5 as an example of a letter he had sent to Missoula Bone & Joint, at 2360 Mullan Road, # C, Missoula, in another case, involving a violation of stay, to show its proclivity to pursue collection activity after being informed of a bankruptcy filing. Ex. 5 explains the automatic -stay and states that if Missoula Bone & Joint takes apy further action to -collect.the debt it will be treated as a willful violation of the stay and Geranios will file suit to hold Missoula Bone, & Joint in contempt and seek damages and attorneys’ fees., Geranios informed the court that he had not sent a letter to Missoula Bone & Joint informing it of the violation of stay prior to filing her Motion, given previous correspondence to Missoula Bone & Joint in other cases.

On October 28, 2015, Debtor filed her Motion (Doc.-17) seeking sanctions against Missoula Bone & Joint for sending the Debtor Ex. 3 and 4 seeking collection of prepetition debts with notice and actual knowledge of the automatic stay. The Motion was served on Missoula Bone & Joint at 2360 Mullan Rd, Ste. C, Missoula, MT 59808, with notice of the opportunity to respond and request a hearing, and that failure to respond shall be deemed an admission that the relief requested should be granted.

Lynsey testified that she received another bill from Missoula Bone & Joint dated 11/3/2015, Ex. 6, again asking for payment of the $340 in prepetition' debt. When Missoula Bone & Joint did not file a timely response to Debtor’s Motion, the Court entered its Order (Doc. 25) on November 17, 2015, granting Debtor’s Motion and scheduling the hearing on the award of sanctions against Missoula Bone & Joint for December 3, 2015.

[662]*662Lynsey testified that she missed one U of M adjunct class .due to her attendance at the hearing, and that she missed some office manager work while ón phone calls with" her attorney. She testified that her office manager job pays her $11.50 per hour, and "that she misséd a total'of 3 dr 4 hours of work, which comes to between $34.50 to $46.00 in lost hourly income. As an adjunct'at'U of M she is paid a salary, and she testified that She suffered no" lost salary. "Shé traveled "7 miles each way to attend the hearing,’ which at the mileage rate allowed by the United States • of America, Internal Revenue Service, of $.565 per mile, comes to $3.96 in mileage costs to "attend the hearing. The Court finds that Lynsey incurred a total $49.96 in lost income and mileage for the hearing on damages.

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543 B.R. 657, 2015 Bankr. LEXIS 4379, 2015 WL 9459789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-bourke-mtb-2015.