Automatic Stay

AUTOMATIC STAY

1. § 362(a)–In General

2. § 362(a) and Abandonment

3. § 362(a)–Annulment

4. § 362(a)–Interplay with California Law

5. § 362(a)–Lawsuits and Collection Efforts

6. § 362(a)– Reopening

7. § 362(a)–State Court Authority

8. § 362(b)–Exceptions

9. § 362(c)

10. § 362(d)

11. § 362(k)(formerly § 362(h)

1. § 362(a)–In general

In re Zotow, 432 B.R. 252 (9th Cir. BAP 2010)

Lender’s postpetition notice to debtor and his attorney regarding an increase in their

monthly escrow payments did not violate the automatic stay, where the document sent was solely

informational, it was not accompanied my a payment coupon or envelope, and only one such

notice was sent. Nor did the lender violate § 362(a)(6) by receiving postpetition payments from

the trustee that were in part based on prepetition amounts owed, where it engaged in no act to

collect the payments.

In re Mwangi, 432 B.R. 812 (9th Cir. BAP 2010)

Wells Fargo exercised control over property of the estate in when it put an administrative

hold on the debtors’ accounts without asserting a right to setoff. Case remanded to determine

whether § 362(a)(3) was violated and whether it was a willful violation.

In re Palmdale Hills Property, LLC, 423 B.R. 655, 668 (9th Cir. BAP 2009)

1. Raising equitable subordination as a defense to a stay relief motion by a lender which

is also in bankruptcy did not violate the automatic stay in the lenders’ case, since equitable

subordination involves the debtor’s equity in the property. However, the adjudication of an

equitable subordination action which seeks affirmative relief would violate the lenders’ stay. The

lenders’ protection under § 362 did not evaporate by filing a proof of claim in the borrower’s

case.

2. “. . .[W]hile the California bankruptcy court may have concurrent jurisdiction to

determine the scope or applicability of the automatic stay, the New York bankruptcy court must

have the final say as to whether the automatic stay applies to the bankruptcy case before it.”

In re MILA, Inc., 423 B.R. 537 (9th Cir. BAP 2010)

Regardless of whether D & O policy proceeds were property of the estate, the bankruptcy

court did not abuse its discretion in lifting the automatic stay to allow the insurer to advance

defense costs to the debtor’s sole officer.

Boucher v. Shaw, 572 F.3d 1087 (9th Cir. 2009)

The automatic stay has no applicability to Fair Labor Standards Act claims against

individual managers of the debtor. Such claims do not seek to reach property that has been

pledged to the secure the debtor’s debts, or that would otherwise impact property of the estate.

In re Kronemyer, 405 B.R. 915 (9th Cir. BAP 2009)

Surety had standing to bring motion for relief from the automatic stay, even though it only

had a contingent claim for contribution or reimbursement under § 502(e)(1).

In re Wardrobe, 559 F.3d 932, 937 (9th Cir. 2009)

“. . .[A]n order granting limited relief from an automatic stay to allow a creditor to

proceed to judgment in a pending state court action is effective only as to those claims actually

pending in the state court at the time the order modifying the stay issues, or that were expressly

brought to the attention of the bankruptcy court during the relief from stay proceedings.”

In re Gould, 401 B.R. 415 (9th Cir. BAP 2009)

IRS had a valid right of setoff under 11 U.S.C. § 553 and IRC § 6402(a) as to chapter 13

debtors’ tax refunds, even though the debtor claimed them as exempt and no objection to the

exemption was filed. Bankruptcy court should have granted the IRS relief from the automatic

stay for cause to allow it to exercise its setoff rights.

Reusser v. Wachovia Bank, N.A. 525 F.3d 855, 861 (9th Cir. 2008)

“. . .[A] final order lifting an automatic stay is binding as to the property or interest in

question–the res– and its scope is not limited to the particular parties before the court. Thus,

while Wachovia was the deed of trust holder, but Washington Mutual was the movant under §

362, the order lifting the stay applied to Wachovia, even though it wasn’t mentioned in the order.

In re Johnson, 346 B.R. 190, 194 (9th Cir. BAP 2006)

Bankruptcy court has jurisdiction to annul the stay and impose sanctions for its violation

even after the case is dismissed.

In re Sewell, 345 B.R. 174, 182 (9th Cir. BAP 2006)

“Debtors’ case was reinstated and the automatic stay was reimposed as of the time the

Reinstatement Order was docketed, not when it was signed. . . The bankruptcy court had

discretion to determine when Debtors’ case was reinstated and the automatic stay was

reimposed.” Foreclosure sale was allowed to stand, as it occurred between the time the case was

dismissed and the reinstatement order was docketed.

In re Tippett, 338 B.R. 82 (9th Cir. BAP 2006), aff’d, 542 F.3d 684 (9th Cir. 2008)

Debtor-initiated transfers are outside the scope of the automatic stay.

Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005)

District Court had jurisdiction to decide whether automatic stay applied to a proceeding

pending before it.

In re Umali, 345 F.3d 818 (9th Cir. 2003)

Bankruptcy petition filed in violation of court-imposed 180-day bar did not trigger

automatic stay, since it was void.

40235 Washington St. Corp. v. Lusardi, 329 F.3d 1076 (9th Cir. 2003), cert. denied, 124 S.Ct.

469 U.S. 2003)

Section 549(c) is not an exception to § 362. It is designed to protect purchasers from the

debtor, whereas 362 is designed to protect the debtor.

In re Allen, 300 F.3d 1055 (9th Cir. 2002)

Chapter 11 plan which did not incorporate pre-confirmation § 362 stipulation and order

was properly confirmed, where stipulation did not recite that it would be binding on the debtor in

a chapter 11 plan.

In re Canter, 299 F.3d 1150 n. 4 (9th Cir. 2002)

“Because the stay under § 362 is “automatic” and “self-executing” only upon filing of a

bankruptcy petition, no authority exists for “reinstating” an automatic stay that has been lifted.”

In re Mitchell, 279 B.R. 839 (9th Cir. B.A.P. 2002)

The bona fide purchaser defense of § 549 (c) to a trustee’s action to avoid a postpetition

transfer does not provide an exception to the automatic stay. Purchaser out of a foreclosure that

occurred a day after bankruptcy filed violated § 362.

In re Bibo, Inc., 200 B.R. 348 (9th Cir. B.A.P. 1996), opinion vacated, 139 F.3d 659 (9th Cir.

1998)

Debtor’s subordinate lien interest in property precluded senior lien holder from

foreclosing on property – § 362

In re Del Mission Limited, 98 F.3d 1147 (9th Cir. 1996)

State violated automatic stay by knowingly retaining disputed taxes after bankruptcy court

ordered them repaid

Citizens Bank of Maryland v. Strumpf, 116 S.Ct. 286 (1995)

Administrative hold is not a setoff, i.e., no violation of stay

In re Ramirez, 183 B.R. 583 (9th Cir. B.A.P. 1995)

Property seized under pre-petition-bankruptcy judgment levy remains part of bankruptcy

estate for purposes of automatic stay

1. Client files are property of attorney’s estate

2. Stay applied even after completion of levy

3. Test for willful violation of stay

4. Damages measured from time files removed from office

Bigelow v. C.I.R., 65 F.3d 127 (9th Cir. 1995)

Tax court proceedings to resolve a disputed notice of deficiency and assertion of

overpayment following a bankruptcy court order of discharge did not constitute an ‘act against

property of the bankruptcy estate’ and did not violate the stay

Delpit v. Comm’r Internal Revenue Service, 18 F.3d 768 (9th Cir. 1994)

Stay applies to appeal from Tax court judgment regarding debtor’ alleged tax deficiency

Hillis Motors, Inc. v. Hawaii Auto. Dealer’s Ass’n, 997 F.2d 581 (9th Cir. 1993)

Revocation of certificate of incorporation violated automatic stay even though it occurred

post-confirmation

In re Glasply Marine Industries, Inc., 971 F.2d 391 (9th Cir. 1992)

Postpetition real estate taxes are subject to the automatic stayIn re Schwartz, 954 F.2d 569

(9th Cir. 1992)

(IRS tax assessment and lien made in violation of 362 is void, not voidable

In re Advanced Ribbons & Office Products v. U.S. Interstate Distrib., 125 B.R. 259 (9th Cir.

B.A.P. 1991)

Foreclosure on stock of guarantor in debtor not a violation of 523(a)(6)

In re Abrams, 127 B.R. 239 (9th Cir. B.A.P. 1991)

Failure to return property after knowledge of bankruptcy is willful violation

Globe Investment & Loan Co., Inc., 867 F. 2d 556 (9th Cir. 1989)

(1) Non-creditor mortgagee had no standing to assert stay violation

(2) stay does not provide protection to creditors

Matter of Lockard, 884 F.2d 1171 (9th Cir. 1989)

(Rejecting Piccinin, i.e., unusual circumstances exception to general rule that 362 does not

cover non-debtors.)

In re Teerlink Ranch Ltd., 886 F.2d 1233 (9th Cir. 1989)

(Stay n/a to court having jurisdiction over debtor)

In re Shamblin, 890 F.2d 123 (9th Cir. 1989)

(1) IRS tax sale in violation of stay is void, not voidable

(2) questionable whether stay could ever be annulled retroactively

In re Krueger , 88 Bankr 238 (9th Cir. B.A.P. 1988)

(Ch 13 case dismissed without due process, thus stay never lifted, thus foreclosure sale

void.)

2. § 362(a) and Abandonment

Catalano v. CIR, 279 F.3d 682 (9th Cir. 2002)

An order lifting or modifying the automatic stay by itself does not constitute a de facto

abandonment of the property of the estate. Procedures under § 554 must be followed before

property is legally abandoned.

3. § 362(a)–Annulment

In re Fjeldsted, 293 B.R.12 (9th Cir. B.A.P. 2003)

Finding of bona fide purchaser status under § 549(c) is not sufficient cause to annul the

stay under a “balancing of the equities” test. Court suggests 12 factors to examine in determining

whether to annul.

In re Cady, 266 B.R. 172 (9th Cir. B.A.P. 2001), aff’d, 315F.3d 1121 (9th Cir. 2003)

1) Balance of the equities supported denial of retroactive annulment of the stay;

2) Creditor did not violate the automatic stay by filing a nondischargeability abstract of

judgment, since under state law it created no lien on estate property, and since there was no stay

in effect when the property was abandoned to the debtor upon closing of the case.

In re National Environmental Waste Corp., 129 F.3d 1052 (9th Cir. 1997), cert denied,

524 U.S. 952, 118 S.Ct. 2368,(1998)

Standards for annulling the stay – Factors

1) How much notice the creditor had of filing

2) Did debtor assert it as a defense

3) Would Court have lifted stay anyway

4) Egregiousness of creditor’s conduct

Here, retroactive annulment of automatic stay is supported by debtor’s long delay in

objecting to substantial notice of contract’s termination relied on by debtor in obtaining

confirmation of reorganization plan.

In re Kissinger, 72 F.3d 107 (9th Cir. 1995)

Court does not abuse its discretion in granting retroactive annulment of automatic stay

where bankruptcy petition filed during recess in action against debtor.

Retroactive relief should only be granted in extreme circumstances, In re Shamblin, 890

F.2d 123, 128 (9th Cir. 1989)

4. § 362(a)–Interplay with Cal. law

In re Nghiem, 264 B.R. 557 (9th Cir. B.A.P. 2001), cert. denied, 539 U.S. 905 (2003)

Lender not required to give additional actual notice of foreclosure sale after bankruptcy

case was dismissed, where lender had orally postponed sale during pendency of case as required

by state law. In re Tome, 113 B.R. 626 (Bankr. C.D. Cal. 1990) rejected.

In re Bebensee-Wong, 248 B.R. 820 (9th Cir. B.A.P. 2000)

Recording of trustee’s deed 14 days after foreclosure sale and 2 days after bankruptcy

petition was filed related back to the time and date of the sale under Cal. Civ. Code § 2924h(c),

and did not violate the automatic stay . (Court distinguishes case where foreclosure sale occurred

after bankruptcy petition filed, implying that in that situation, the sale would be void.)

In re Hilde, 120 F.3d 950 (9th Cir. 1997)

Under California law, judgment creditor need not “perfect” lien created by service on

debtor of order to appear for examination to defeat avoidance of lien by bankruptcy trustee.

5. § 362(a)–Lawsuits and collection efforts

Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010)

Attorney who had obtained a contempt order against the debtor for failing to pay spousal

support had a duty “ to alert the appellate court to the obvious conflicts between the order and the

stay.” Liability for actual damages and emotional distress affirmed. However, attorneys fees

allowed only for the work done to enforce the automatic stay, not for work on the adversary

proceeding to obtain damages.

Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210 (9th Cir. 2002)

Under § 362(a), the prohibition against continuation of judicial actions requires that the

action be automatically dismissed or stayed, and not merely that it not be pursued.

In re Arneson, 282 B.R. 883 (9th Cir. B.A.P. 2002)

The automatic stay applies to collection efforts on a dischargeability judgment rendered in

a previous bankruptcy case.

In re LPM Corp., 300 F.3d 1134 (9th Cir. 2002)

Bankruptcy court order requiring immediate payment of post-petition rent as an

administrative priority did not relieve the landlord of the necessity of obtaining relief from the

automatic stay before proceeding with a writ of execution.

In re Baldwin Builders, 232 B.R. 406 (9th Cir. B.A.P. 1999)

Bankruptcy creditor’s post-petition suits to enforce pre-petition mechanic’s lien violated

automatic stay.

In re Way, 229 B.R. 11 (9th Cir. B.A.P. 1998)

Post-petition dismissal of debtor’s pre-petition state court lawsuit did not violate

automatic stay.

In re Luz International, Ltd., 219 B.R. 837 (9th Cir. B.A.P. 1998)

Bankruptcy court erred in electing to decide merits of complex multi-party setoff claim in

hearing on underwriter’s motion for relief from automatic stay

In re Turner, 204 B.R. 988 (9th Cir. B.A.P. 1997)

Municipal court judgment may be void for having been entered in violation of bankruptcy

stay.

In re Conejo Enterprises, Inc., 96 F.3d 346 (9th Cir. 1996)

Bankruptcy court did not abuse discretion in failing to lift stay to allow remanded state

court action to go forward where claimant filed a proof of claim.

Parker v. Bain, 68 F.3d 1131 (9th Cir. 1995)

1.) Stay prevents an appeal by a debtor when the action or proceeding below was against

the debtor

2.) Appeal on a claim by the debtor against another is not stayed

3.) Appeal on counterclaim against debtor is stayed

Dean v. Trans World Airlines, 72 F.3d 754 (9th Cir. 1995), cert. denied, 519 U.S. 863 (1996)

Post-filing dismissal of action against bankruptcy debtor violates automatic stay where

decision to dismiss requires court to first consider other issues presented by or related to

underlying case.

In re White, 186 B.R. 700 (9th Cir. B.A.P. 1995)

Although debtor is stayed from appealing an adverse judgment where the action was

brought against him, the cross-defendant is not stayed from seeking a dismissal of debtor’s crosscomplaint.

In re Robbins, 964 F.2d 342 (4th Cir. 1992)

Lifting stay to liquidate claim in a divorce case.

Noli v. C.I.R., 860 F.2d 1521 (9th Cir. 1988)

(Validity of order from bench lifting stay on Tax Ct proceeding)

In re Cimarron Investors,848 F.2d 974 (9th Cir. 1988)

(Interest – under secured creditor not entitled to interest to compensate for delay caused by

stay of foreclosure)

In re Kemble, 776 F.2d 802 (9th Cir. 1985)

Judicial economy alone justifies lifting stay to permit state ct lawsuit to proceed.

6–§ 362(a)– Reopening

In re Aheong, 276 B.R. 233 (9th Cir. B.A.P. 2002)

Bankruptcy court properly reopened case and annulled stay based on debtor’s delay in

raising the issue and failure to follow the local rule.

7. § 362–State Court Authority

In re Dunbar, 245 F.3d 1058 (9th Cir. 2001)

State administrative law judge’s decision regarding scope of the automatic stay in

bankruptcy did not preclude independent review by bankruptcy court.

In re Gruntz, 202 F.3d 1074 (9th Cir. 2000) (en banc)

1) Only bankruptcy court has authority to finally determine whether the stay applies.

2) § 362(b)(1) excepts all criminal proceedings from the stay, regardless of their purpose.

Hinduja v. Arco Products Co., 102 F.3d 987 (9th Cir. 1996)

Stipulated order for lifting automatic stay that incorporates terms of settlement does not

bar separate action for breach of stipulation or underlying agreement in district court. Trustee

was not required to seek enforcement of stipulation in bankruptcy court .

8. § 362(b) Exceptions

Lockyer v. Mirant Corp., 398 F.3d 1098 (9th Cir. 2005)

California attorney general’s suit under the Clayton Act did not seek to protect the

pecuniary interest of the state, and thus fell under § 362(b)(4).

Allen v. Allen, 275 F.3d 1160 (9th Cir. 2002), aff’d in part, 23 Fed.Appx. 859 (9th Cir. 2002)

Action seeking modification of existing support award was exempt from the automatic

stay under § 362(b)(2)(A)(ii)

In re Chapman, 264 B.R. 565 (9th Cir. B.A.P. 2001)

Section 362(b)(4) does not stay a civil forfeiture action by the government brought under

21 U.S.C. § 881(a)(7).

In re First Alliance Mortgage Co., 263 B.R. 99 (9th Cir. B.A.P. 2001)

State’s prosecution to judgment of claims for civil penalties, attorney fees and restitution

under consumer laws is exempted under § 362(b)(4).

In re Berg, 230 F.3d 1165 (9th Cir. 2000)

Award of attorney fees imposed as a sanction under FRAP 38 for pursuing a frivolous

appeal excepted from the stay under § 362(b)(4).

In re Boggan, 251 B.R. 95 (9th Cir. B.A.P. 2000)

Creditor who retained possession of debtor’s car in order to continue perfection of its

statutory repairman’s lien did not violate automatic stay pursuant to § 362(b)(3).

In re Weisberg, 136 F.3d 655 (9th Cir. 1998), cert denied, 525 U.S. 826 , 119 S.Ct. 72(1998)

Stockbroker need not seek relief from automatic stay to liquidate bankruptcy debtor’s

shares of stock pledged as collateral for “margin loan” § 362(b)(6)

In re Universal Life Church, 128 F.3d 1294 (9th Cir. 1997), cert. denied, 524 U.S. 952 (1998)

The Court of appeals affirmed a judgment of the district court and dismissed on appeal.

The court held that the IRS’ revocation of a religious-organization debtor’s tax-exempt status is

permissible under the police and regulatory power exception to the bankruptcy automatic stay

§ 362(b)(4).

NLRB v. Continental Hagen Corp., 932 F.2d 828 (9th Cir. 1991)

(NLRB action not affected by stay under § 362(b)(4))

National Labor Relations Board v. Continental Hagen Corporation., 932 F.2d 828 (9th Cir. 1991)

NLRB action not affected by automatic bankruptcy stay

In re Wade, 115 B.R. 222 (9th Cir. B.A.P. 1990) aff’d. 948 F.2d 1122 (1991)

Attorney’s state bar excepted from bankruptcy proceedings as governmental unit.

Assertion of counter claim in relief from stay motion procedurally improper

In re Poule, 91 B.R. 83, (9th Cir. B.A.P. 1988)

(state licensing bureau not stayed from imposing fine under 362(b)(4)

9.–§362(c)

In re Nelson, 391 B.R. 437 (9th Cir. BAP 2008)

Section 362(c)(4) is not ambiguous. Where two or more bankruptcy cases have been

pending in the same year, no automatic stay of any kind goes into effect upon filing the third case.

10–§ 362(d)

In re Johnson, 346 B.R. 190, 194 (9th Cir. BAP 2006)

In rem orders purporting to affect the stay in future cases are void.

In re Delaney-Morin, 304 B.R. 365 (9th Cir. B.A.P. 2003)

Bankruptcy court erred in granting relief from the stay because of postpetition defaults,

where the hearing was noticed as a nonevidentiary one, the nature of the defaults upon which the

order was based were not alleged in the motion, the debtor was not present at the hearing, and

there was no competent evidence to support a finding of such defaults.

In re Duvar Apt., Inc., 205 B.R. 196 (9th Cir. B.A.P. 1996)

Debtor’s bad faith filing warranted lifting stay

In re Sun Valley Newspapers, Inc., 171 B.R. 71 (9th Cir. B.A.P. 1994)

(d)(2) standard – re effective reorg, is it patently unconfirmable? Does it have a realistic

chance of being confirmed? Plausible..probable…assured

Equity under (d)(2) = value less all encumbrances

In re CBJ Development, 202 B.R. 467 (9th Cir. B.A.P. 1996)

Combination hotel and bar was not “single asset real estate” and was therefore subject to

automatic stay

§ 362(k) (formerly 362(h))

Sternberg v. Johnston, 595 F.3d 937 (9th Cir. 2010)

Attorney who had obtained a contempt order against the debtor for failing to pay spousal

support had a duty “ to alert the appellate court to the obvious conflicts between the order and the

stay.” Liability for actual damages and emotional distress affirmed. However, attorneys fees

allowed only for the work done to enforce the automatic stay, not for work on the adversary

proceeding to obtain damages.

In re Ozenne, 337 B.R. 214 (9th Cir. BAP 2006)

Storage company that sold debtor’s personal property after being notified of his

bankruptcy filing committed willful violation of the automatic stay, since under Cal. Civil Code §

§1980-1991, the debtor had the right to redeem it up to the time of sale. Standard for a willful

violation restated. In re Williams, 323 B.R. 691 (9th Cir. BAP 2005), aff’d, 204 Fed. Appx. 582

(9th Cir. 2006).

Debtor may be entitled to damages for willful violation of the automatic stay, even though

the stay was subsequently annulled.

In re Peralta, 317 B.R. 381 (9th Cir. BAP 2004)

“It is settled that the “willfulness test” for automatic stay violations merely requires that:

(1) the creditor know of the automatic stay; and (2) the actions that violate the stay be intentional.

. . .No specific intent is required; a good faith belief that the stay is not being violated “is not

relevant to whether the act was ‘willful’ or whether compensation must be awarded.” In re

Goodman, 991 F.2d 613, 618 (9th Cir.1993).

In re Hayden, 308 B.R. 428 (9th Cir. B.A.P. 2004)

Towing company did not willfully violate automatic stay by failing to return debtor’s

impounded car, where statew of Washington gave the company a lien for towing and storage.

In re Dawson, 390 F.3d 1139 (9th Cir. 2004)

Damages for emotional distress caused by willful violations of the automatic stay are

available under § 362(h).

In re Stinson, 295 B.R. 109 (9th Cir. B.A.P. 2003), aff’d in part, reversed in part,

128 Fed.Appx. 30 (9th Cir.2005)

1. Court properly prorated fees based on proportion of claims upon which debtor

prevailed, where debtor’s counsel was given two opportunities to correct her inadequate fee

application, but failed to do so;

2. In the absence of significant economic loss, emotional distress damages are improper.

3. Court properly balanced the equities in denying punitive damages.

In re Campion, 294 B.R. 313 (9th Cir. B.A.P. 2003)

Collection company that knows of automatic stay but whose computer mistakenly sends a

collection notice willfully violates the automatic stay, entitling the debtor to attorney fees.

In re Dyer, 322 F.3d 1178 (9th Cir. 2003)

“Serious” punitive damages may not be awarded under § 105 for civil contempt of the

automatic stay by entities who are not individuals. Only compensatory sanctions, attorney fees

and compliance with the stay may be awarded.

In re Roman, 283 B.R. 1 (9th Cir. B.A.P. 2002)

Attorneys fees are a part of the actual damages allowed by the statute. The debtor has a

duty to mitigate the amount of fees incurred. Sanctions may not be awarded under both § 362(h)

and § 105.

In re Colortran, Inc., 210 B.R. 823 (9th Cir. B.A.P. 1997), aff’d in part, vacated in part, 165 F.3d

35 (9th Cir. 1998)

Freight forwarder willfully violated automatic stay by withholding bankruptcy debtor’s

shipment.

In re McHenry, 179 B.R. 165 (9th Cir. B.A.P. 1995)

Technical violation of the stay did not warrant actual or punitive damages

In re Davis, 177 B.R. 907 (9th Cir. B.A.P. 1995)

Debtor’s damages action for violation of automatic stay does not become moot because

underlying case dismissed

Havelock v. Taxel (In re Pace), 56 F.3d 1170 (9th Cir. B.A.P. 1995), aff’d. in part, vacated in

part., 67 F.3d 187 (9th Cir. 1995)

Under § 105 stay applies to unscheduled assets even though case closed. Trustee could

recover attorney fees and costs under 362(h) as an “individual”.

“A trustee in bankruptcy is not an “individual” and thus may not recover damages under

362(h) but may seek sanctions under bankruptcy code §105(a).

In re Cascade Roads, Inc., 34 F.3d 756 (9th Cir. 1994)

U.S. is not covered by 362(h); while civil contempt power may not exist in bankruptcy

court, sanctions power does.

In re Goodman, 991 F.2d 613 (9th Cir. 1993)

Standard for willful violation; 362(h) applies only to individuals, but civil contempt

available

In re Stainton, 139 B.R. 232 (9th Cir. B.A.P. 1992)

When willful violation found, court must award debtor all reasonable fees

In re Pinkstaff, 974 F.2d 113 (9th Cir. 1992)

IRS liable for damages under 362(h); no sovereign immunity under 106(a), at least where

IRS has filed a claim

In re Bulson, 117 B.R. 537 (9th Cir. 1990), aff’d. 974 F.2d 1341 (9th Cir. 1992)

Award of atty fees to debtor for wilful violation by IRS of stay.

In re Bloom, 875 F.2d 224 (9th Cir. 1989)

Standard. for finding willful violation of stay – damages and interest

In re Taylor, 884 F.2d 478 (9th Cir. 1989)

(1) damages for violation – 362(h)

(2) res judicata – stay lift order may be res judicata in subsequent case, see In re Taylor, 77

B.R. 237 (9th Cir. B.A.P. 1987) criticized.

In re Zumbrun, 88 B.R. 250 (9th Cir. B.A.P. 1988)

§ 362 (h) sanctions

Section 362(h) (2005 version)

In re Dumont, 383 B.R. 481, 489 (9th Cir. 2009)

“Ride through” option under pre-BAPCPA law (In re Parker, 139 F.3d 668 (9th Cir.

1998)) was eliminated in 2005. “At least where the debtor has not attempted to reaffirm, our

decision in Parker has been superceded by BAPCPA.” (Emphasis added)