Skillforce, Inc. v. Hafer

509 B.R. 523, 71 Collier Bankr. Cas. 2d 826, 2014 WL 1669058, 2014 U.S. Dist. LEXIS 58023
CourtDistrict Court, E.D. Virginia
DecidedApril 25, 2014
DocketNo. 1:14-cv-42
StatusPublished
Cited by19 cases

This text of 509 B.R. 523 (Skillforce, Inc. v. Hafer) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Skillforce, Inc. v. Hafer, 509 B.R. 523, 71 Collier Bankr. Cas. 2d 826, 2014 WL 1669058, 2014 U.S. Dist. LEXIS 58023 (E.D. Va. 2014).

Opinion

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

At issue in this bankruptcy appeal is whether appellants Skillforce, Inc. (“Skill-force”) and Patricia E. Tichenor (“Ms. Tichenor”) willfully violated the 11 U.S.C. § 362(a)(1) automatic stay by failing to withdraw post-judgment debtor’s interrogatories,1 or to prevent a hearing on the interrogatories, after the Loudoun County General District Court (“State Court”) Judge, when advised of the bankruptcy, first correctly stayed the interrogatories, but then ordered the parties to appear for a subsequent status hearing regarding the interrogatories.

For the reasons that follow, the Bankruptcy Court correctly concluded that appellants willfully violated the automatic stay, but a remand is required for the Bankruptcy Court to make specific findings on damages.

I.

As the Bankruptcy Court’s factual findings are reviewed for clear error,2 and the parties do not contest those findings, they are adopted here in full, as follows:3

1) On October 19, 2012, the General District Court of Loudoun County, Virginia, entered an in personam judgment against the Debtor, Ms. Hafer, in favor of Skillforce, in the amount of $12,997.11, consisting of $5,203. 19 in principal, attorney’s fees of $3,292.28, costs of $68, and prejudgment interest. The judgment arose out of Ms. Hafer’s guaranty of the debts of Hafer Construction, Inc., to Skillforce.
2) On December 27, 2012, Ms. Tichenor, as counsel for Skillforce, submitted a request for a Summons to Answer Debtor’s Interrogatories, directed to Ms. Hafer as the judgment debtor. The Clerk issued the Summons on December 28th, returnable to February 6, 2013.
3) In connection therewith, Ms. Tiche-nor filed a request for a Subpoena Duces Tecum, to compel Ms. Hafer to [526]*526bring with her documents related to her assets and liabilities. The Subpoena was issued, commanding Ms. Hafer to bring with her to the debt- or’s interrogatories hearing the documents identified in the attachment to the Subpoena.
4) Ms. Hafer filed a Voluntary Petition under Chapter 7 with this Court at 8:53 a.m. on the morning of the debt- or’s interrogatories hearing, February 6th.
5) Ms. Hafer listed Skillforce as a creditor in her Schedules, care of Ms. Tichenor at Ms. Tichenor’s office address in Leesburg. Skillforce is listed in the Clerk’s matrix of mailing addresses for creditors, also care of Ms. Tichenor at her address in Leesburg. Skillforce also filed a proof of claim in the case, on April 2, 2013.
6) Ms. Hafer brought a copy of the Notice of Bankruptcy Case Filing with her to the debtor’s interrogatories hearing. She and Ms. Tichenor had a brief encounter before the Judge took the bench, in which Ms. Tichenor described the process of debtor’s interrogatories, explaining that the Judge would swear Ms. Hafer in, and they would then go to a conference room, where the examination would be conducted. Ms. Hafer did not present Ms. Tichenor with the Notice of Bankruptcy Filing during this brief, pre-hearing encounter.
7) When the Judge took the bench, Ms. Hafer presented the Judge with her Notice of Bankruptcy Filing.
8) What occurred next at the hearing is the subject of some conflict in the testimony. Ms. Hafer testified that Ms. Tichenor advised the Judge that she had her court reporter present, and that she was prepared to proceed with the debtor’s interrogatories, notwithstanding the bankruptcy filing. Ms. Hafer further testified that the Judge refused to allow Ms. Tichenor to proceed with the debtor’s interrogatories, at which point, Ms. Tichenor requested that the court continue the debtor’s interrogatories hearing for status.
9) Ms. Tichenor, on the other hand, testified that she did not seek to proceed with the debtor’s interrogatories hearing that day. She further testified that she did not request that the court continue the matter for a status hearing; rather, she testified that the court continued the matter on its own.
10) The Court also heard the testimony of Ms. McManus, who is the court reporter engaged by Ms. Tichenor for purposes of the debtor’s interrogatories hearing. The Court found Ms. McManus to be pleasant, forthright, and highly credible. Ms. McManus was in the courtroom when the Judge called the case on February 6, 2013. Ms. McManus testified that, when presented with the Notice of Bankruptcy Filing, the Court asked Ms. Tichenor whether she was aware of Ms. Hafer’s bankruptcy filing. Ms. Tichenor said that she was not aware of the filing. Ms. McManus testified that it was clear that the Judge was not going to proceed with the debtor’s interrogatories hearing on that date. Ms. McManus further testified that Ms. Tichenor did not seek to proceed with the debtor’s interrogatories hearing, that Ms. Tichenor did not request that the matter be continued for status, and that the Judge continued the matter for status without her requesting him to do so. This Court accepts Ms. McManus’s testimony and finds that: (a) Ms. Tichenor did not seek to proceed with the debtor’s interrogate-[527]*527ries hearing on February 6th; and (b) the Judge continued the debtor’s interrogatories hearing for status, to May 1, 2013, without Ms. Tichenor requesting that he do so.
11) Ms. Hafer testified that she was “appalled” and “shocked” by the continuance, and that she felt “bullied” into having to appear a second time in court. She testified that she felt compelled to appear at the May 1 status hearing, for fear of having a capias issued for her arrest.
12) Mr. Andrews, Ms. [Hafer’s]4 bankruptcy counsel, filed a Suggestion of Bankruptcy with the General District Court on March 14, 2013 (though, he mailed it directly to Skillforce at its offices in Baltimore, MD, and did not mail it to Ms. Tichenor).
13) The General District Court held a status hearing on May 1, 2013. Ms. Hafer was present at the status hearing on May 1st, as was Ms. Tichenor. No court reporter was present. Ms. Hafer protested to the Judge that the status conference was a violation of her rights as a debtor in bankruptcy. The Judge took a recess. When he re-called the case, he asked Ms. Hafer what her view of the matter was. She responded (according to her own testimony) that “I understand that everything is stayed, and it’s the Court’s practice to set a status for bankruptcy review.”
14) Ms. Tichenor’s testimony in this regard is consistent with an Affidavit that she submitted in opposition to the Debtor’s Motion to Show Cause in this case, in which Ms. Tichenor stated: Between February 6, 2013, and May 1, 2013, I received no communications from Deborah K. Hafer, or an attorney representing Ms. Hafer, indicating that the Loudoun Court was without power or jurisdiction to order a status review of the matter or that it was a violation of any federal law. It was my understanding from prior cases before the Loudoun Court that the use of status review is routine, used to monitor whether the debtor actually completes the bankruptcy or abandons the bankruptcy (which has occurred).

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Cite This Page — Counsel Stack

Bluebook (online)
509 B.R. 523, 71 Collier Bankr. Cas. 2d 826, 2014 WL 1669058, 2014 U.S. Dist. LEXIS 58023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/skillforce-inc-v-hafer-vaed-2014.