In re Hill

523 B.R. 704, 2014 Bankr. LEXIS 4913, 2014 WL 6886714
CourtUnited States Bankruptcy Court, D. Montana
DecidedDecember 4, 2014
DocketNo. 14-60302-7
StatusPublished
Cited by5 cases

This text of 523 B.R. 704 (In re Hill) 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 Hill, 523 B.R. 704, 2014 Bankr. LEXIS 4913, 2014 WL 6886714 (Mont. 2014).

Opinion

MEMORANDUM OF DECISION

RALPH B. KIRSCHER, Bankruptcy Judge.

At Butte in said District this 4th day of December, 2014.

Pending in this Chapter 7 case is the Debtor Tiffani Ann Hill’s (“Hill” or “Debt- or”) motion for sanctions (Document No. 15) against LPH, INC DBA Northwest Collectors (hereinafter “NWC”) for willful violation of the automatic stay under 11 U.S.C. § 362(k)(l), for sending a collection report which included a scheduled debt of the Debtor to a credit reporting agency (“CRA”) after the date of the filing of Debtor’s bankruptcy petition. NWC filed an objection. A hearing on this contested motion was held after due notice at Great Falls on October 10, 2014. The parties were represented by counsel. Witness testimony was heard and exhibits were admitted. At the conclusion of the parties’ cases-in-chief the Court granted the parties time to file briefs, and for Debtor’s counsel to submit an affidavit of attorney’s fees incurred. The briefs and Debtor’s attorney affidavit have been filed and reviewed by the Court, together with the record and applicable law. This matter is ready for decision.

[708]*708This Court has jurisdiction of this bankruptcy case under 28 U.S.C. § 1334(a). Debtor’s motion for sanctions for violation of the automatic stay is a core proceeding under 28 U.S.C. § 157(b)(2). For the reasons set forth below, Debtor’s motion for sanctions will be granted and sanctions awarded against NWC for its willful violation of the stay.

Hill appeared at the hearing on October 10, 2014, and testified, represented by attorney Randy L. Tarum (“Tarum”) of Great Falls. NWC was represented by attorney Elizabeth A. Ries-Simpson of Missoula, and NWC’s president and majority shareholder Paul Heihn (“Heihn”) testified, as did Sherry Jenkins. Debtor’s Exhibits (“Ex.”) 1, 2, 3, 4, 6, 7, and NWC’s Ex. 1, 2, 3, 4, 5, 6, and 7, were admitted into evidence.

FACTS & PROCEDURAL HISTORY

Tiffany Hill is a mother with two young children who was divorced at the time she filed her bankruptcy petition. Hill is self-employed at a nail salon she owns in Great Falls called “Tips by Tif ’ from which she earns most of her income, in addition to alimony/child support. Hill testified that she has banked at Montana Federal Credit Union (“MFCU”) since she was in high school.

Hill had a charge account agreement with Beaches Beauty Supply (“Beaches”) of Missoula. NWC Ex. 2 shows the account and a statement giving a total amount Hill owed Beaches in the sum of $381.93. Hill because delinquent on her Beaches account, and Beaches turned it over to NWC for collection.

NWC is a d/b/a of LPH, INC. Paul Heihn is president and majority shareholder of LPH and has actively participated in the collection business for more than 5 years. NWC’s Ex. 1 is a “Collection Agency Agreement” with Beaches dated 2/12/03, whereby Beaches assigned its delinquent accounts to NWC for collection. Ex. 1 includes an “Agency Liability” Article VI wherein NWC agrees to assume full liability for all claims or suits arising from NWC’s means or methods of collection, and NWC agreed to indemnify and hold Beaches harmless from any claims or expenses incurred by NWC in collection. The Agreement does not request any information from Beaches about possible bankruptcy, but Heihn testified that NWC performs training sessions with its clients about bankruptcy.

NWC has one office and seven employees. Heihn testified that he is familiar with bankruptcy and the automatic stay, that NWC has attorneys on staff to help with bankruptcy matters, and that he trains and monitors NWC’s employees in compliance with the Bankruptcy Code and federal credit reporting statute requirements.

Hill Ex. 6 is a copy of NWC’s consumer bankruptcy policy and procedures. Heihn testified that NWC relies on information it is given by clients, and that if NWC has any suggestion that there is a bankruptcy then it checks on the PACER system to verify whether an account is in bankruptcy. On page 2 of Ex. 6 a NWC collector is directed to enter “PET” (petition for bankruptcy) in its Collect! Program and stop all collection activity, and the collector is changed to “MGR.”

NWC uses a collection software system, identified at trial as “Metro 2,” which holds all its credit reporting data and updates. Once each month NWC sends its collection accounts, the total of which may approach a thousand accounts listed on its software system, in one massive file to the three [709]*709CRAs.1 Heihn testified the file holds a massive number of accounts and they are sent off in one file to the three CRAs. He admitted that NWC is required by federal law to update collection accounts and report accurate information. The information about Hill given to NWC by Beaches went into NWC’s credit reporting software.

Because Hill was struggling to pay debts from an earlier marriage and divorce, she decided to seek a fresh start through bankruptcy. Hill filed her Chapter 7 petition on March 25, 2014, with her Schedules and Statement of Financial Affairs. Schedule F lists Beaches as a creditor holding an unsecured nonpriority claim in the amount of $370.89 for business supplies. NWC is not listed as a creditor in Debtor’s Schedules. Schedule F lists MFCU several times as a” creditor holding unsecured nonpriority claims under several account numbers in the total amount of $208.00.2

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 March 27, 2014, including to Beaches in Great Falls. The notice was not sent to NWC. The notice (Document No. 4) tells creditors they “should not file a proof of claim at this time” unless they are sent another notice with a deadline' to file a proof of claim.

The § 341 meeting of creditors was held on April 22, 2014. The Trustee filed a no-asset report on April 25, 2014.

Notwithstanding Hill’s bankruptcy, Jenkins testified that a week after the date Hill filed her bankruptcy petition Hill was able to obtain a $19,000 car loan from MFCU. Hill decided to get married again, and planned for her wedding to take place on June 3, 2014. She signed up for an online service, “Creditkarma.com,” which enabled her to track her credit score and find out whenever any entity enquired about her credit. Hill testified that she wanted to see if her debts in collection were taken off of her credit report when her bankruptcy appeared.

Debtor’s Ex. 7 is a set of credit reports Hill obtained by logging into Creditkar-ma.com over a period of several months. Ex. 7 shows Hill’s bankruptcy on page 2, with the notation “Discharged.”3 On the third page Ex. 7 shows that Hill’s credit rating was 655 as of April 28, 2014, which is described as “Fair.”

After the § 341 meeting concluded, Hill testified, she thought that her bankruptcy was complete and that her fresh start had begun. However, after the § 341 meeting Hill received a notice of collection of the debt listed in her bankruptcy schedules which she owed to Beaches. NWC sent Hill one notice about the Beaches account, which Hill received on May 5, 2014.

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Cite This Page — Counsel Stack

Bluebook (online)
523 B.R. 704, 2014 Bankr. LEXIS 4913, 2014 WL 6886714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hill-mtb-2014.