Kenneth Lodge v. Kondaur Capital Corporation

750 F.3d 1263, 94 Fed. R. Serv. 603, 71 Collier Bankr. Cas. 2d 758, 2014 WL 1813298, 2014 U.S. App. LEXIS 8632
CourtCourt of Appeals for the Eleventh Circuit
DecidedMay 8, 2014
Docket13-10919
StatusPublished
Cited by82 cases

This text of 750 F.3d 1263 (Kenneth Lodge v. Kondaur Capital Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kenneth Lodge v. Kondaur Capital Corporation, 750 F.3d 1263, 94 Fed. R. Serv. 603, 71 Collier Bankr. Cas. 2d 758, 2014 WL 1813298, 2014 U.S. App. LEXIS 8632 (11th Cir. 2014).

Opinion

HULL, Circuit Judge:

Plaintiffs-appellants Kenneth and Delores Lodge sued defendants-appellees MeCalla Raymer, LLC (“McCalla”) and Kondaur Capital Corporation (“Kondaur”), claiming that they violated (1) the automatic stay in plaintiff Kenneth Lodge’s bankruptcy, under 11 U.S.C. § 362, and (2) the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The plaintiffs appeal the district court’s grant of summary judgment in favor of the defendants. After careful review and with the benefit of oral argument, we affirm.

I. FACTUAL BACKGROUND

A. Lodges’ Mortgage in 2000

In 2000, the Lodges obtained a $156,800 loan from First Franklin Financial Corporation (“First Franklin”). They signed a promissory note and executed a security deed giving First Franklin a mortgage on their property. The security deed gave First Franklin the right to foreclose on the property as a means of enforcing the Lodges’ obligation to repay the loan.

B. Plaintiff Kenneth Lodge’s Bankruptcy in 2005

Five years later, on September 15, 2005, plaintiff Kenneth Lodge filed a Chapter 13 *1265 bankruptcy petition. Pursuant to 11 U.S.C. § 362, the filing of the petition automatically stayed any act to collect the loan and to enforce any lien, such as First Franklin’s mortgage. 11 U.S.C. § 362(a)(4), (6).

On December 18, 2008, defendant McCalla filed, on behalf of First Franklin’s loan servicer, Home Loan Services, a motion for relief from the bankruptcy stay. In the motion, McCalla asserted that Kenneth Lodge had defaulted on the promissory note and requested that the stay be lifted so that First Franklin could exercise its rights under the security deed. The bankruptcy court never ruled on this motion.

Also on December 18, 2008, First Franklin assigned its interest in the promissory note and security deed to defendant Kondaur. Later on in 2009, defendant McCalla, on behalf of defendant Kondaur, filed an amendment to the December 18, 2008 motion for relief from the bankruptcy stay, changing the movant’s name from Home Loan Services to Kondaur, the new owner of the security deed. The bankruptcy court never ruled on this amended motion either.

C. March 12, 2009 Notice of Sale

In January 2009, defendant Kondaur submitted a foreclosure referral regarding the Lodges’ property to defendant McCal-la. Then McCalla, on behalf of Kondaur, submitted a “Notice of Sale” for publication in the Rockdale Citizen, a local newspaper.

The Notice of Sale stated that Kondaur sought to foreclose on the Lodges’ property to recover the amount owed under the promissory note. The foreclosure sale was to take place on the first Tuesday of April 2009, that is, April 7, 2009.

The Notice of Sale was published on March 12, 2009. That same day, McCalla requested that the local newspaper cancel the publication of the Notice of Sale. So, the March 12, 2009 Notice of Sale was published only once and only for one day total. The Lodges did not see the Notice of Sale at that time.

Rather, at some unspecified time after March 12, 2009, the Lodges received letters from law firms informing them that they were “about to be foreclosed.” The Lodges then discovered that the Notice of Sale had been published in the Rockdale Citizen. A few weeks later, on April 7, 2009, the date announced in the Notice of Sale, the Lodges realized that the foreclosure sale had been canceled, and it never occurred. 1

On January 28, 2010, Kenneth Lodge completed his Chapter 13 plan, and his debts, including the loan here, were discharged. Given the bankruptcy court never ruled on the initial motion or the amended motion for relief from the bankruptcy stay, the stay remained in effect throughout Kenneth Lodge’s bankruptcy proceedings from 2005 to 2010.

II. PROCEDURAL BACKGROUND

A. Lodges’ Lawsuit filed March 12, 2010

After Kenneth Lodge received his Chapter 13 discharge, the Lodges filed a two-count complaint against defendants McCal-la and Kondaur. Count 1 claimed that McCalla and Kondaur violated the automatic bankruptcy stay by causing the local newspaper to publish the March 12, 2009 Notice of Sale. The Lodges sought damages under 11 U.S.C. § 362(k), which provides that an “individual injured by any willful violation of a stay provided [by *1266 § 362] shall recover actual damages.... ” 11 U.S.C. § 362(k). 2

Count 2 claimed that the defendants’ publication of the Notice of Sale also violated the FDCPA, 15 U.S.C. § 1692f(6)(A) and (C). 3

The district court addressed the Lodges’ two claims separately, at different stages of the lawsuit, as outlined below.

B. Summary Judgment Motions on Automatic Stay Claim (Count 1)

The Lodges moved for partial summary judgment on their automatic stay claim in Count 1. The defendants filed a summary judgment motion on that same claim. The defendants argued that the Lodges had not shown any injury caused by the defendants’ violation of the stay and therefore could not recover “actual damages” under § 362(k).

The Lodges responded that the defendants’ violation of the automatic stay was, standing alone, an injury for which the Lodges could recover “actual damages” under § 362(k). The Lodges also asserted that they could recover under § 362(k) for their emotional distress.

In their affidavits, the Lodges acknowledged that they did not see the March 12, 2009 Notice of Sale in the Rockdale Citizen and discovered it only when they received the law firms’ letters. On April 7, 2009, the Lodges learned the foreclosure would not happen. Thus, the maximum duration of the Lodges’ concern about the possibility of foreclosure was a period from sometime after March 12, 2009 until April 7, 2009.

In support of the Lodges’ claim of emotional distress, plaintiff Delores Lodge attested that, before the Lodges discovered that the foreclosure sale would not occur, her husband, Kenneth Lodge, was “unbearable.” She could not talk to him. He did not want to listen to her. She was “stressed out,” so she visited her family doctor for stress and back pain and was prescribed medication.

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750 F.3d 1263, 94 Fed. R. Serv. 603, 71 Collier Bankr. Cas. 2d 758, 2014 WL 1813298, 2014 U.S. App. LEXIS 8632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kenneth-lodge-v-kondaur-capital-corporation-ca11-2014.