In re Lara

569 B.R. 231
CourtUnited States Bankruptcy Court, N.D. Texas
DecidedMarch 27, 2017
DocketCASE NO. 16-50201-rlj7
StatusPublished
Cited by6 cases

This text of 569 B.R. 231 (In re Lara) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lara, 569 B.R. 231 (Tex. 2017).

Opinion

MEMORANDUM OPINION

Robert L. Jones, United States Bankruptcy Judge

The debtors, Jacob and Tobitha Lara, filed their motion seeking actual and punitive damages, plus attorney’s fees, for violations of the automatic stay and the discharge injunction by Vivint, Inc. Vivint did not respond to the motion or appear at the hearing held on the motion on February 22, 2017. The Laras appeared at the hearing and testified in support of their motion.

The Court concludes that Vivint did willfully violate the automatic stay and discharge injunction. As set forth below, the [234]*234Court awards actual and punitive damages, plus the requested attorney’s fees.

The Court has authority to decide this matter under 28 U.S.C. §§ 1384(b) and 167(b)(2). This memorandum opinion contains the Court’s findings of fact and conclusions of law. See Fed.R.Bankr.P. 7052 and 9014.

I.

A.

The Laras filed their joint chapter 7 bankruptcy case on September 15, 2016; Jacob Lara is 29, Tobitha Lara is 27. The Laras are represented by John J. Grieger, Jr., of Legal Aid of Northwest Texas. Vivint is one of the Laras’ creditors, holding an unsecured claim in an amount the Laras listed in their schedules as unknown. They misspelled Vivint as “Vivnt,” but identified Vivint’s claim as arising from a contract for a home security system. They stated that Vivint’s address is 4931 North 300 West, Provo, Utah 84604.

The home security system was installed by Vivint at the Laras’ residence in Midland, Texas. Several months before their bankruptcy filing, the Laras moved to Seminole, Texas.

The Laras, on Schedule G, which concerns leases and executory contracts, stated that they were rejecting the contract with Vivint.

Vivint is a domestic, for-profit corporation that has the location of its registered agent as 4931 N 300 W, Provo, Utah 84604. Debtors’ Ex. C. A formal notice of the Laras’ bankruptcy filing was served by first class mail by the Bankruptcy Noticing Center on Vivint at 4931 North 300 West, Provo, Utah 84604-5816. The official notice describes the filing, the imposition of the automatic stay, and that the debtors, the Laras, would be seeking a discharge through their bankruptcy filing. The notice further informed creditors that there were no assets in the estate and thus the filing of proofs of claim was unnecessary.

Prior to filing their bankruptcy case, the Laras paid their Vivint account through an arrangement with Vivint by which Vivint would draft their account to pay for services provided by Vivint. Shortly after the Laras’ bankruptcy filing on September 15, 2016, Vivint drafted $63.00 from the Laras’ account. Tobitha Lara immediately called a Vivint representative and advised her of the bankruptcy filing. The Vivint representative was sympathetic, advising Mrs. Lara that she, too, had once filed a bankruptcy case. Another Vivint representative advised Mrs. Lara that the $63.00 would be refunded, which in fact it was two weeks later. In doing so, Vivint obviously recognized that it had run afoul of the automatic stay that is imposed upon a bankruptcy filing.

Despite rectifying the original stay violation, Vivint continued to demand payment from the Laras for their then past due account of approximately $60.00. Vivint representatives made several phone calls to the Laras, both to Tobitha Lara at their home number and to Jacob Lara to his cell phone while he was working. Each time the Laras advised the caller of their pending bankruptcy case.

Then, on October 26, 2016, Vivint started sending monthly emails demanding payment. On October 26, 2016, Vivint sent an email to the Laras stating, “Jacob, your account is 30 days past due.” The email, in a highlighted box, exclaimed, “Past Due Account!” It also had a smaller highlighted box stating, “Make Payment.” The address at the bottom of the email is 4931 N. 300 W, Provo, Utah 84604. The body of the email stated that Vivint was sending “this friendly reminder” that the Laras’ balance was overdue. Debtors’ Ex. E. (emphasis [235]*235added). The email farther recited that it was an attempt to collect a debt and that any information obtained would be used for such purpose. Id.

A second demand was made by Vivint’s email dated November 26, 2016. It stated, “Jacob, your account is 60 days past due.” It contained the same highlighted statements but, in the body of the email, stated that “we encourage you to make your payment as soon as possible.” Debtors’ Ex. F. (emphasis added). It further stated that if a payment arrangement was not made, Vivint would accelerate the agreement for immediate collection. The same address for Vivint was included.

The third email from Vivint is dated December 27, 2016. It stated, “Jacob, your account is 90 days past due.” Though the larger highlighted box stated, “Past Due Account!”, the smaller highlighted box said, “Call Now.” The body of the email said that it was extremely important that the Laras contact Vivint to resolve the payment and that Vivint “strongly urge[s] you to pay your balance as soon as possible.... ” It also threatened acceleration of the agreement.

On December 29, 2016, the Laras received their discharges under section 727 of the Bankruptcy Code. Notice of the discharges, like the original notice of the Laras’ bankruptcy filing, was mailed to Vivint at 4931 North 300 West, Provo, Utah 84604-5616. Debtors’ Ex. H. It was mailed to all creditors, including Vivint, on January 1, 2017.

Shortly after the Laras received their discharges, Vivint sent yet another demand to the Laras, advising again that they were 90 days past due. This demand, however, was sent from the Vivint Collection Center in Chicago, Illinois. Though using a different format, it stated that it was “extremely important” that the Laras contact Vivint concerning payment; the Laras were “strongly” urged to pay the balance as soon as possible. It said that the total amount “DUE UPON RECEIPT” was $62.78. Debtors’ Ex. I.

Finally, on January 27, 2017, again from the Provo, Utah address and in the same format as the prior notices from such address, Vivint advised the Laras that they were 90 days overdue and that they were “strongly” urged to pay the balance as soon as possible. All notices from Vivint from the Provo, Utah address recited that they were an attempt to collect a debt and that any information obtained would be used for such purpose. This demand was made 17 days after the Laras filed the motion here and served it on Vivint.

B.

The Laras’ attorney, John J. Grieger, Jr., submitted his affidavit in support of an award of attorney’s fees for Vivint’s multiple stay violations. Grieger spent 18.7 hours on this matter; he values his time at $400 an hour. The fees do not include time expended by two other attorneys with Legal Aid of Northwest Texas that worked on the case. Nor does it include time spent traveling from Wichita Falls, Texas, where Grieger maintains his office, to Lubbock for the hearing.

Grieger has been licensed to practice law since 1990. His prosecution of the matter was handled competently and professionally.

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Cite This Page — Counsel Stack

Bluebook (online)
569 B.R. 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lara-txnb-2017.