In re Breul

533 B.R. 782, 2015 Bankr. LEXIS 2284, 2015 WL 4181187
CourtUnited States Bankruptcy Court, C.D. California
DecidedJuly 10, 2015
DocketCase No.: 1:05-bk-20645-MT
StatusPublished
Cited by5 cases

This text of 533 B.R. 782 (In re Breul) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Breul, 533 B.R. 782, 2015 Bankr. LEXIS 2284, 2015 WL 4181187 (Cal. 2015).

Opinion

MEMORANDUM OF DECISION RE ORDER TO SHOW CAUSE RE CONTEMPT FOR VIOLATIONS OF (1) THE AUTOMATIC STAY; AND (2) THE DISCHARGE INJUNCTION

Maureen A. Tighe, United States Bankruptcy Judge

On or about October 14, 2005, Debtor Charles Breul (“Debtor”) filed a voluntary chapter 7 petition. He 'listed Creditors Frank Addamo and Creditors Specialty Service, Inc., collecting for Frank Addamo, (“CSS”) as unsecured nonpriority creditors on his schedules. The chapter 7 trustee determined it was a no asset case. No objection to discharge was made in Debt- or’s bankruptcy. On or about February 10, 2006, Debtor obtained a discharge.

In 2013, Debtor discovered that an abstract of judgment had been recorded post-petition on behalf of Respondents on December 27, 2005 (the “Lien”). On August 20, 2013, Debtor’s bankruptcy counsel, Barry Borowitz, contacted CSS to remove the Lien. Declaration of Barry Borowitz in Support of Motion for OSC, ¶3-4 (the “Borowitz Dec.”). Speaking with Borowitz on behalf of CSS, Charles V. Stanley, Jr., president of CSS during all relevant time periods (“Stanley” or collectively with CSS as “Respondents”), [786]*786first stated that Debtor should have filed a § 522(f) motion. Id. After informing Stanley that the Lien was void as it had been recorded during the bankruptcy, Stanley replied that he would not remove the Lien unless1 Debtor agreed to pay $7,000. Id. On August 23, 2013, Borow-itz sent a letter demanding that the Lien be removed. Id. at ¶ 6. Borowitz again sent a letter to CSS on November 6, 2013 (the “November Letter”). CSS did not remove the Lien.

On January 21, 2014, Debtor reopened his bankruptcy case. On January 28, 2014, Debtor filed a Motion for Order to Show Cause (the “Contempt Motion”), requesting that (1) Creditors be held in contempt for violation of the stay and the discharge injunction; (2) that Creditors pay compensatory damages for Debtor’s emotional distress and resulting medical assistance, punitive damages, and attorney’s fees and costs; and (3) that Creditors immediately remove the Lien. Debtor alleged that had been applying for refinance of his mortgage and was unable to do so because of the Lien. As a result, Debtor contended that he missed 4;he period of historically low interest rates. He is 83-years old and contends that he has suffered great emotional distress because of the alleged violation. No response to the OSC Motion was filed, and the Court held a hearing on the OSC Motion on February 26, 2014. The Court then issued the Order to Show Cause re Violation of the Automatic Stay and Discharge Injunction on March 6, 2014 (the “First OSC”). The Court set March 20, 2014 as the response deadline, and the hearing on the First OSC was set for April 3, 2014. In the meantime, sometime in March 2014, CSS removed the Lien.

At the April 3, 2014 hearing, the Court adopted its tentative ruling and found that there was sufficient evidence that Respondents had engaged in the violative conduct. Respondents argued, however, that the Motion was not properly served because it was served on “Creditors Specialty Services” instead of “Creditors Specialty Service.” Service was also defective because the Motion was served only on the entity address and not the agent for service of process, as listed with the California Secretary of State. On April 15, 2014, Debtor re-served the Motion on “Credit Specialty Service, Inc.” at both its principal place of business and on its agent for service of process (“Amended Contempt Motion,” doc. no. 32). On April 18, 2014, the Court issued the second Order to Show Cause re Violation of the Automatic Stay and Discharge Injunction (the “Second OSC”), and a hearing was set thereon for May 14, 2014.

On May 2, 2014, CSS filed “Objection/Opposition to OSC re Contempt” (the “First Objection”) wherein it asserted that the Second Service was also defective because the Court did not previously have personal jurisdiction over it and thus, under LBR 90201(e)(2), it was entitled to be served personally and not by U.S. Mail. See doc. no. 40. CSS then requested leave to file written objections and defenses to the allegations made in the Motion.

On May 6, 2014, the Court issued an Amended OSC (the “Amended OSC”) that set May 28, 2014 as the new response deadline and set the hearing on June 11, 2014. On June 9, 2014, CSS filed a two-page response entitled “Objection/Opposition to OSC re Contempt” (the “Second Objection”), wherein it complained, among other things, that its name was incorrect in the Amended OSC. At the June 11 hearing, the Court ordered that the name of Respondents be corrected on the Amended OSC, and ordered an evidentiary hearing. The Court set the evidentiary hearing on August 5, 2014 at 10:00 a.m. A second amended OSC was issued on June 27, 2014 [787]*787that corrected the spelling of Respondent CSS’ name from “Creditors Specialty Services” to “Creditors Specialty Service.” See doc. no. 47.

On August 5, 2014, the parties appeared for the evidentiary hearing. Appearances are as noted on the record. Respondents made several arguments at the hearing that were raised but not fully briefed in the Second Objection. Respondent first argued that they did not receive notice of the bankruptcy prior to recording the Lien on Debtor’s property. Without having actual notice of the bankruptcy, Respondents believe that their actions did not constitute a “willful” violation of the automatic stay. Respondents then argued that any claim by Debtor for violation of the automatic stay that occurred in 2005 must be barred by the statute of limitations. Lastly, Respondents defend themselves by placing all blame for conduct that may have violated the automatic stay on their former (now disbarred) attorney, Jay Tenenbaum (“Tenenbaum”). The Court will analyze each of Respondents’ defenses in turn.

Violation of the Automatic Stay

The filing of a bankruptcy petition under chapter 11 of the Bankruptcy Code creates an automatic stay which prohibits, inter alia, “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]” 11 U.S.C. § 362(a)(1); Snavely v. Miller (In re Miller), 397 F.3d 726, 730-31 (9th Cir.2005) (“The stay of section 362 is extremely broad in scope and ... should apply to almost any type of formal or informal action against the debtor or property of the estate.”). An automatic stay arose when Debtor filed the chapter 7 bankruptcy petition on October 14, 2005. The automatic stay remained in effect to bar actions against Debtor until entry of the discharge and discharge injunction on February 10, 2006. 11 U.S.C. § 362(c)(2)(C); Zilog, Inc. v. Corning (In re Zilog, Inc.), 450 F.3d 996, 1009 (9th Cir.2006). (“[T]he stay of any other act under subsection (a) of this section continues until the earliest of — ... the time a discharge is granted or denied[.]”)

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
533 B.R. 782, 2015 Bankr. LEXIS 2284, 2015 WL 4181187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-breul-cacb-2015.