TranSouth Financial Corp. v. Sharon (In Re Sharon)

1999 FED App. 0009P, 234 B.R. 676, 1999 Bankr. LEXIS 639, 1999 WL 359713
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedJune 4, 1999
DocketBAP 98-8034
StatusPublished
Cited by127 cases

This text of 1999 FED App. 0009P (TranSouth Financial Corp. v. Sharon (In Re Sharon)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TranSouth Financial Corp. v. Sharon (In Re Sharon), 1999 FED App. 0009P, 234 B.R. 676, 1999 Bankr. LEXIS 639, 1999 WL 359713 (bap6 1999).

Opinions

OPINION

TranSouth Financial Corporation appeals the order of the bankruptcy court that held TranSouth violated the automatic stay and that imposed sanctions under 11 U.S.C. § 362(h). We affirm.

_-I. Issues on Appeal1

1) Whether the bankruptcy court correctly determined that TranSouth violated the automatic stay by withholding possession of the Chapter. 13 Debtor’s car after demand and tender of adequate protection by the Debtor.
2) Whether the bankruptcy court abused its discretion by imposing sanctions of $2,122.50 on TranSouth for the stay violation.

II. Jurisdiction and Standard of Review

The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction over the appeal of final orders of the bankruptcy court for the Southern District of Ohio pursuant to 28 U.S.C. § 158(c)(1). The bankruptcy court’s order sanctioning Tran-South for violating the automatic stay is a final order. See Javens v. City of Hazel Park (In re Javens), 107 F.3d 359 (6th Cir.1997).

The Panel reviews questions of law and of statutory interpretation de novo. See Hardenberg v. Virginia, Dep’t of Motor Vehicles (In re Hardenberg), 42 F.3d 986, 988 (6th Cir.1994) (citing United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990)). The bankruptcy court’s factual findings are reviewed under the clearly erroneous standard. Nee Fed. R. BanerP. 8013. “The sanction or remedy imposed by the bankruptcy court for violation of the automatic stay is reviewed for abuse of discretion.” United States v. Mathews (In re Mathews), 209 B.R. 218, 218 (6th Cir. BAP 1997) (citing California Employment Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir.1996)). “A bankruptcy court’s decision with respect to the amount of damages constitutes a factual finding, and, ..., we may not upset such findings unless they are ‘clearly [680]*680erroneous.’ ” Archer v. Macomb County Bank, 853 F.2d 497, 498 (6th Cir.1988).

III. Facts

In November 1995, Rosemary Sharon (the “Debtor”) purchased a 1995 Mitsubishi 3000 GT automobile. The Debtor made a down payment of $3,450 and financed the balance through a retail installment contract with TranSouth. The Debt- or’s monthly payments began January 1, 1996. TranSouth perfected its security interest.

The Debtor made the January payment to TranSouth. When the Debtor made the February payment, she was in the process of changing banks. The February check was returned to TranSouth with a notation that the account had been closed. A Tran-South representative contacted the Debtor about the missed payment and told her that TranSouth would not repossess the car if it received two payments-the missed February payment and the March payment. The Debtor tendered a check for two payments to bring her account current. TranSouth repossessed the Debtor’s car on March 1, 1996, before the two payment check cleared the Debtor’s (new) bank.

The Debtor consulted an attorney. She filed a Chapter 13 petition and plan on March 11, 1996. The plan proposed 60 monthly payments of $1,000 from the Debtor’s janitorial business. The plan treated TranSouth as a secured creditor to the extent of the value of the car.

On the same day as the petition, Debt- or’s counsel contacted TranSouth, advised a Mr. Havenor of the Chapter 13 filing, and requested return of the car. Later that same day, Havenor requested from the Debtor’s counsel a copy of the bankruptcy schedules and proof of insurance. These documents, together with the name of the Debtor’s insurance agent, were faxed to Havenor that day. The Debtor’s counsel contacted Havenor a third time on the petition date to confirm receipt of the documents and to again request that the car be returned. The Debtor’s counsel also telephoned TranSouth’s counsel in Dallas, Texas and left a message. The next day, Debtor’s counsel made two more phone calls to TranSouth’s counsel, faxed him a copy of the bankruptcy schedules, and requested again that the car be returned. TranSouth’s counsel told Debtor’s counsel that TranSouth would not return the car.

On March 15, 1996, the Debtor filed a Motion for Contempt and Sanctions for Violation of the Automatic Stay and a Motion for an Expedited Hearing. The bankruptcy court set a hearing for March 21, 1996. On March 21, 1996, TranSouth filed a Motion for Relief from the Automatic Stay or in the Alternative for Adequate Protection and a brief in opposition to the Debtor’s request for sanctions. Tran-South asserted that the Debtor’s car was “beyond contemplation of the protection of the Bankruptcy Code” and was not necessary for an effective reorganization because the Debtor could get less expensive transportation. TranSouth contended that its lien was not adequately protected. As a condition for return of the car, Tran-South demanded (more?) proof of insurance and adequate protection payments.

On March 21, 1996, the bankruptcy court ordered return of the car to the Debtor, and set for a later date the Debt- or’s request for sanctions and TranSouth’s motion for relief from the stay. On March 22,1996, the car was returned.

On June 14, 1996, the bankruptcy court conducted a combined hearing on confirmation, TranSouth’s motion for relief from the stay, and the Debtor’s request for sanctions. The Debtor was the only witness. She testified that she had operated a janitorial business for nine years and that the business serviced a local college for annual payments that would soon exceed $100,000. The only line of inquiry pursued by TranSouth on cross examination was the number of payments the [681]*681Debtor made on the car prior to repossession.

The bankruptcy court held that Tran-South’s refusal to turnover the car violated the automatic stay. The bankruptcy court awarded actual daipages for costs and attorney fees totaling $2,122.50. In re Sharon, 200 B.R. 181 (Bankr.S.D.Ohio 1996).

TranSouth timely appealed.

IV. Discussion

A. Withholding Possession of the Debt- or’s Car After Demand and Tender of Adequate Protection Is the Exercise of Control Over Property of the Estate in Violation of the Automatic Stay.

The filing of a Chapter 13 petition gives rise to an automatic stay of “any act to obtain possession of property of the estate or of property from the estate or to exercise' control over property of the estate.” 11 U.S.C. § 362(a)(3). Every interest of the Debtor in “property of the estate” is protected by § 362(a)(3).

Possession of the Debtor’s car was property of the Chapter 13 estate from the moment of the petition. As the Supreme Court explained in United States v. Whiting Pools, Inc., 462 U.S. 198, 103 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 FED App. 0009P, 234 B.R. 676, 1999 Bankr. LEXIS 639, 1999 WL 359713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/transouth-financial-corp-v-sharon-in-re-sharon-bap6-1999.