Santander Consumer, USA, Inc. v. Houlik (In re Houlik)

481 B.R. 661
CourtBankruptcy Appellate Panel of the Tenth Circuit
DecidedOctober 29, 2012
DocketBAP No. KS-11-096; Bankruptcy No. 09-12159
StatusPublished
Cited by26 cases

This text of 481 B.R. 661 (Santander Consumer, USA, Inc. v. Houlik (In re Houlik)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santander Consumer, USA, Inc. v. Houlik (In re Houlik), 481 B.R. 661 (bap10 2012).

Opinions

CORNISH, Bankruptcy Judge.

Creditor appeals an order of the bankruptcy court awarding actual damages of $474.86 and punitive damages of $25,000 to the individual Chapter 11 debtors as a sanction for its repossession of their vehicle.1 Believing the debtors had missed two monthly payments, creditor repossessed the vehicle approximately one year after the confirmed Chapter 11 plan re-vested the vehicle in debtors subject to creditor’s rights in the collateral, and approximately two months after debtors’ case had been voluntarily closed without discharge. After a thorough review of the record and applicable law, we conclude the bankruptcy court did not have the authority to award damages to debtors in this case. Accordingly, we reverse.

I. BACKGROUND FACTS

Debtors Jeffrey and Charla Houlik (the “Houliks”) filed for Chapter 11 relief in [664]*664July 2009. Under their plan of reorganization (the “Plan”), they proposed to pay the claim of CitiFinancial Auto, Inc. (“Citi-Financial”), which was secured by a lien on their 2005 Dodge Ram pickup truck (the “Truck”), in the amount of $17,305, in monthly installments of $343.2 Mr. Hou-lik, a self-employed home contractor, used the Truck for work purposes. CitiFinan-cial did not object to the Plan, and it was confirmed in December 2009.3 The Plan revested the Truck and other assets in the Houliks.4 Additionally, the Plan provided that CitiFinancial “shall maintain its collateral rights, including those granted in any Adequate Protection Order.”5

Pursuant to 11 U.S.C. § 1141(d)(5),6 individual Chapter 11 debtors are not discharged from their debts upon plan confirmation, unless after notice and hearing, the bankruptcy court orders otherwise for cause. Instead, discharge ordinarily occurs when individual Chapter 11 debtors complete all payments under their plan. In this case, the implementation section of the Plan recited that debtors were to be discharged upon confirmation.7 However, the disclosure statement was silent as to time of discharge,8 and the bankruptcy court’s confirmation order stated that “[njothing in this order or the Plan shall operate as a discharge of the debtors from Claims, obligations or liabilities to be paid or performed under the Plan[.]”9 In October 2010, the Houliks requested and were granted a final decree by the bankruptcy court, thereby voluntarily closing their Chapter 11 case.10

In September 2010, CitiFinancial assigned the servicing of its claim against the Houliks on the Truck to Santander Consumer, USA (“Santander”).11 Santan-der, believing two monthly payments had not been made, repossessed the Truck on December 27, 2010, after a confrontation with the Houliks in front of their home. During such confrontation, Santander’s repossession agent physically pushed Mr. Houlik and denied him access to the contents of the Truck.

Following repossession, counsel for the Houliks sent letters to both Santander and its counsel demanding the Truck be returned, but to no avail. Therefore, on January 5, 2011, the Houliks filed a motion to reopen their Chapter 11 case in order to pursue Santander for alleged violation of the automatic stay.12 After the bankruptcy court entered an order granting the [665]*665motion to reopen,13 the Houliks filed a “motion for order to show cause why violation of stay should not be entered,” seeking turnover of the Truck and imposition of fees, costs, and sanctions against San-tander.14 The motion was set for hearing on March 10, 2011, with an objection deadline of February 28, 2011. In absence of any response by Santander, on March 9, 2011, the bankruptcy court entered a default order for turnover of the Truck and awarded damages, together with the costs and expenses of the action, including attorney fees, to the Houliks in the amount of $32,510.29.15 Of that total, $29,064.29 were for damages claimed by the Houliks, which included lost work opportunities, a lost cell phone, and various lost tools. Also included in the damages were reimbursements for overhead expenses allegedly incurred by Mr. Houlik’s business, including premiums for insurance on the Truck and general liability insurance, a contractor’s license renewal fee, and construction storage building and trailer rentals.16

Santander returned the Truck to the Houliks on March 17, 2011, about 80 days after it had repossessed it. Shortly thereafter, Santander filed a motion to vacate the bankruptcy court’s default order, alleging lack of proper service,17 to which the Houliks responded, claiming proper service on Santander’s registered agent.18 On April 20, 2011, the bankruptcy court vacated the default order, directed Santander to respond to the Houliks’ motion alleging stay violation within 21 days, and set a status hearing for May 26, 2011.19 Santan-der timely filed its response, asserting it had properly exercised its rights to repossess the Truck.20 At the status hearing, the bankruptcy court set an evidentiary hearing on the matter for July 19, 2011.21

Several days prior to the evidentiary hearing, the bankruptcy court entered an order directing that the parties be prepared to address its jurisdiction to hear and determine the matter.22 As the following discussion clearly illustrates, neither counsel for the Houliks nor counsel for Santander were helpful in clarifying [666]*666the jurisdictional problem, and in fact only succeeded in engendering significant confusion regarding the issue.

In his opening remarks at the evidentia-ry hearing, counsel for the Houliks stated that

[i]n hindsight, that motion for stay violation should’ve actually been filed as a motion for violation of the discharge injunction, that the debtors had come through bankruptcy, that the debt at issue was a part of the plan, that it was dealt with in the plan, and I’ll cite to you the plan[.]23

But when questioned by the bankruptcy court, counsel confirmed he was not taking the position that the Houliks had received a discharge, and was relying on the jurisdiction retention provisions contained in Article 13 of the Plan, and proceeding on the theory that Santander had breached the contract that is the Plan by wrongfully repossessing the Truck.24

Counsel for Santander then took the position that the Houliks had been granted a discharge at confirmation.25 Accordingly, he argued the Houliks’ motion for alleged violation of the stay was not an appropriate matter for relief because pursuant to § 362(c)(2), the automatic stay terminated when the case was closed and/or when the discharge was entered.26 In response to the bankruptcy court’s question about jurisdiction to enforce the discharge injunction, Santander’s counsel acknowledged jurisdiction, but added “that particular form of action needs to be expressed in that fashion.

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481 B.R. 661, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santander-consumer-usa-inc-v-houlik-in-re-houlik-bap10-2012.