Thomason v. Chestatee Community Ass'n (In re Thomason)

493 B.R. 890, 2013 WL 2154635
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMarch 5, 2013
DocketNo. G11-25344-REB
StatusPublished
Cited by7 cases

This text of 493 B.R. 890 (Thomason v. Chestatee Community Ass'n (In re Thomason)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomason v. Chestatee Community Ass'n (In re Thomason), 493 B.R. 890, 2013 WL 2154635 (Ga. 2013).

Opinion

ORDER

ROBERT E. BRIZENDINE, Bankruptcy Judge.

Before the Court is the Motion of Debt- or-Movant, Teresa Thomason, for Damages and Sanctions for Violation of the Automatic Stay against Respondent Ches-tatee Community Association, Inc. as filed on June 18, 2012 (Docket Entry No. 66).1 The Court scheduled this contested matter as initiated by Debtor for hearing and heard testimony on September 24 and September 25, 2012, and closing arguments of counsel on October 1, 2012. The Court took the matter under advisement and the parties have filed post-hearing briefs. Based upon a review of the evidence of record and the legal argument [894]*894presented at the hearing and in the briefs as filed, the Court finds and concludes that the motion should be granted in favor of Debtor on the limited basis discussed herein.

As framed by Debtor, the issues presented are whether Defendant violated the automatic stay under 11 U.S.C. § 362(a) in sending a written notice of suspension of amenity privileges in the form of a letter to Debtor for unpaid homeowner’s association fees, and if so, whether same was intentional and willful. Further, Debtor contends this alleged willful violation includes the confrontation that occurred between an agent of Defendant and Debtor following the sending of the letter with respect to Debtor’s attempt to use a swimming pool in Defendant’s amenities area with members of her family. It is Debt- or’s position that the foregoing conduct is sufficient to support the entry of an award of actual damages, including damages for emotional distress, costs, and fees, in addition to punitive damages against Defendant pursuant to Section 362(k) of the Bankruptcy Code.2

Regarding Debtor’s allegation about the suspension notice, Defendant admits through counsel that its agent Community Management Associates, Inc. (“CMA”) prepared and mailed a letter to Debtor informing her that amenity privileges had been suspended because of her delinquent account balance. See Trial Exhibits, Defendant’s Exhibit 6 (Copy of Letter dated May 15, 2012). Defendant also concedes that it was aware of Debtor’s pending bankruptcy case, but adds that neither CMA nor Ms. Jodi Phillips, the individual who caused the May 15 letter to be sent from CMA to Debtor, had actual knowledge that this case had been converted from a case under Chapter 13 to a ease under Chapter 7. Defendant insists that the letter was sent in error because Debt- or’s bankruptcy case had not been noted in CMA’s business records.

Further, Defendant states that there is no evidence CMA and Ms. Phillips received any specific instruction from Defendant to send the letter to the Debtor. In fact, CMA and Phillips had no knowledge that Debtor was a specific recipient of the notice as it was a form letter routinely sent to various property owners listed by address prior to the beginning of pool and tennis season.3 After counsel for Defendant informed Ms. Phillips that Debtor’s pending bankruptcy case had been converted, she sent a retraction letter to Debtor and the records of CMA were corrected to reflect the conversion. See Plaintiffs Exhibit 4. At most, Defendant contends, this situation should be characterized as resulting from an inadvertent mistake that was corrected upon its discovery, and there is no evidence of willfulness to violate the stay.

[895]*895Debtor argues, however, that the knowledge of Defendant and its counsel, Daniel Melchi, should be imputed to everyone associated with Defendant, including its agents such as CMA and Ms. Phillips, and that Melchi failed to perform his duty to inform everyone about the situation. Moreover, Debtor avers that she believed the letter contained an implicit threat to have her or any member of her family arrested for criminal trespass if they attempted to enter upon Defendant’s property and use the amenity area. As she claims, Defendant “intended to and did carry out its threat to deny Plaintiff [Debt- or] her legal rights.” See Closing Brief (of Movant), ¶ 3, page 5 (Docket Entry No. 83).

Further, Debtor refers to assurances she received from Defendant’s counsel Mr. Melchi during a telephone conversation following receipt of the letter, during which he allegedly indicated Debtor could use the amenity area without fear of harm. This call, Debtor insists, was part of an elaborate, intentional, and malicious pattern of behavior on behalf of a group of persons associated with Defendant to lure Debtor into a situation where she could be arrested in front of her family. Debtor even claims that she was afraid to leave her home and suffered extended periods of anxiety and distress leading to health issues requiring medical care.

Regarding the pool incident, Debtor alleges that following her conversation with Mr. Melchi, she visited Defendant’s swimming pool with members of her family around 8:00 p.m. on the evening of June 7, 2012. Soon after their arrival, Mr. Bob Cook, a community resident, member of Defendant’s board, and overseer of its recreational amenities, came to the site, confronted Debtor, and called the Dawson County Sheriffs Department. Mr. Cook testified that he had reason to suspect the group was trespassing upon Defendant’s property. It is disputed whether Debtor refused to identify herself to Mr. Cook as a resident of the community, or whether she informed him that Defendant’s lawyer had authorized her use of the amenity area before Cook contacted the sheriffs department.

Debtor argues that whether or not Mr. Cook knew who she was at the time, which he testified he did not, he is charged with knowledge of her bankruptcy case at the time he challenged Debtor at the pool and allegedly told her she was under arrest. Further, Mr. Cook was acting as an agent of Defendant and, therefore, under the doctrine of respondeat superior, Defendant is hable for Cook’s alleged tortious conduct, as well as that of Mr. Melchi and Ms. Phillips. Debtor maintains that Mr. Cook’s actions must be viewed in connection with the threatening collection letter she received from Ms. Phillips and the representations made by Mr. Melchi regarding her right to use the amenities, all of which helped to create this unfortunate episode and evidences a willful effort by Defendant to cause Debtor harm and injury.

While Defendant concedes an incident occurred around the pool on June 7, it vigorously denies the embellishments it contends Debtor adds to her description of this event. According to Mr. Cook, he had been notified that an unknown group of people were using the pool area, and that a child had been passed over the fence to open the gate. He then proceeded to the site to investigate and establish the identity of Debtor’s group. The only vehicle he observed in the parking lot had an out of county tag, and he sought to determine if they were residents of the community or their guests, or if they were trespassing. Mr. Cook also stated, and Debtor conceded, that Debtor was free to leave at all [896]*896times. Mr. Cook said he only called the sheriffs office because Debtor was being uncooperative in his attempt to find out who she was or where she lived. Mr. Thomason testified that upon being called to the pool, he witnessed a chaotic scene as the children were very worried Debtor was going to be arrested.

After arriving at the pool area, the peace officer determined that a misunderstanding had occurred between the parties.

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Cite This Page — Counsel Stack

Bluebook (online)
493 B.R. 890, 2013 WL 2154635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomason-v-chestatee-community-assn-in-re-thomason-ganb-2013.