# Hutchings v. Ocwen Federal Bank (In Re Hutchings)

> United States Bankruptcy Court, N.D. Alabama · September 7, 2006 · 348 B.R. 847

URL: https://www.frixlaw.com/law-library/cases/2019580

## Case

- **Full name:** In Re Brice M. HUTCHINGS, Debtor. Brice M. Hutchings, Plaintiff, v. Ocwen Federal Bank, FSB, Banc One, N.A., F/K/A the First National Bank of Chicago, Defendants
- **Court:** United States Bankruptcy Court, N.D. Alabama
- **Decided:** September 7, 2006
- **Citations:** 348 B.R. 847; 2006 Bankr. LEXIS 2225; 2006 WL 2571949
- **Precedential status:** Published
- **Opinion:** Opinion by Cohen
- **Judges:** Benjamin Cohen
- **Cited by:** 31 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2019580

## How later opinions describe it (automated extraction)

- holding that a debtor was not entitled to recover her expenses, including attorney’s fees, incurred in a proceeding to recover damages suffered because of a creditor’s wrongful actions where those actions were not continuing and did not require an undoing to make the debtor whole
- holding that an adversary proceeding was necessary, even though the stay violation had already ended, because the debtor had suffered unredressed damages
- holding that § 362(k) “requires that before attorney fees may be awarded, the fees must have been actually incurred by the debtor.” (emphasis in the original)
- concluding that debtor could not recover attorney's fees and costs since he neither paid his attorney nor incurred any personal obligation to do so

## Opinion text

MEMORANDUM OPINION ON COMPLAINT FOR VIOLATION OF STAY UNDER § 362
BENJAMIN COHEN, Bankruptcy Judge.
I. Background
The matter before the Court is a
Complaint for Violation of Stay Under § 362
filed on June 25, 2002, by Mr. Brice M. Hutchings, the debtor. After notice, a trial was held on October 7, 2004. Appearing were the debtor; his attorneys Mr. Andre M. Toffel, Mr. Harrison Willis, and Ms. Heather Bellew; and the defendants’ attorney, Mr. Jay Ross.
The matter was submitted on testimony, exhibits, the record in this adversary proceeding, the record in Bankruptcy Case No. 99-01302-BGC-13, and arguments and briefs of counsel.
II. Summary
The debtor had a mortgage debt with the defendant’s predecessor when he filed the pending Chapter 13 case on March 2, 1999, but he failed to make all of his post-petition mortgage payments. To address that problem, the debtor filed a handwritten letter with the Court on April 1, 2002, requesting permission to refinance his home. The Court treated the debtor’s request as a motion and granted it on April 26, 2002.
The defendant Ocwen, or its predecessor, mistakenly believed the Court’s April 26, 2002, order granted it relief from the stay.
1
Based on that belief, the defendant
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attempted to collect its debt from the debt- or through telephone calls and letters. The defendant first called the debtor on May 11, 2002, and made its last call to the debtor on June 12, 2002. During that thirty-day period, the defendant contacted the debtor numerous times. After discovering its mistake, the defendant stopped contacting the debtor, although the defendant does admit that it violated the stay.
In his complaint, the debtor alleged damages cause by the defendant’s stay violation. At trial, the debtor proved that the damages he did suffer were the result of prosecuting the stay violation, not a result of the stay violation.
Based on the evidence, the Court finds that the debtor did not prove that he suffered any damage because of the mortgage company’s violation of the stay, other than damages associated with his prosecution of that violation. And in agreement with the vast majority of reported decisions on this issue, this Court finds that those damages are not recoverable through this proceeding. Therefore, the Court finds that judgment is due to be entered in favor of the defendant and against the debtor on the complaint for violation of the stay.
III. Contentions
The debtor contends that the defendant Ocwen violated the automatic stay when Ocwen’s representatives contacted him attempting to collect a pre-petition debt. Ocwen admits that it violated the stay.
Mr. Hutchings also contends that he is entitled to damages because of Ocwen’s stay violation. In that regard, he does not contend, and there is no evidence to suggest that he could contend, that he suffered any damage during the time Ocwen violated the stay.
Similarly, Mr. Hutchings does not contend, and again there is no evidence to suggest that he could contend, that he was required to file the pending complaint either to stop Ocwen from doing anything, to undo anything Ocwen did, or to force Ocwen to redress any damage he suffered because of Ocwen’s stay violation. Ocwen had at the time the complaint was filed, stopped contacting the debtor and Ocwen’s attorneys confirmed with the debtor’s attorney that it would cease contacting the debtor.
What Mr. Hutchings does contend is that he is entitled to damages caused after Ocwen violated the stay. Those damages relate strictly to Mr. Hutchings prosecution of the stay violation. In that regard, Mr. Hutchings claims compensatory damages of: (1) $800 in wages for the time from work he spent attending court hearings and visiting his attorneys’ office; (2) $50 for gasoline for transportation in connection with those same activities; and (3) $52,235.99 in attorneys fees for prosecuting this adversary proceeding. He also seeks punitive damages.
While Ocwen admits that it violated the stay, it contests the debtor’s claim for damages.
IY. Issues
The general issue is: May a debtor recover for a stay violation where no damages were proven to have been caused by that violation?
The determinative issue is: If the debt- or was not injured by the stay violation, is the debtor entitled to recover costs result
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ing solely from the debtor’s prosecution of an action to redress the stay violation?
V. Holding
Like most courts, this Court abhors stay violations. But, while stay violations may be inherently wrong, they are not inherently harmful.
2
Yes, Ocwen violated the stay, but there is no evidence that Mr. Hutchings was injured by that violation. The vast majority of reported cases on the issue of whether a debtor who was not injured by a stay violation may recover against the violator hold that the debtor may not recover. This Court agrees. Therefore, without an injury caused by the violation, Mr. Hutchings is not entitled to any recovery.
3
As
summarized immediate
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ly below, this Court’s holding is based on three general conclusions.
A. Only an Injured Party May Recover Under Section 362
While the Court finds that Ocwen violated the stay, the preponderance of the evidence is that Mr. Hutchings
was not injured, by Ocwen’s stay violations.
First, the evidence is uncontroverted that Ocwen’s “stay violating” contact with Mr. Hutchings ended
before
the pending complaint was filed. Mr. Hutchings’ attorney’s office confirmed that Ocwen
ceased
its contact with the debtor before the complaint was filed and
confirmed, that Ocwen’s behavior would not resume.
Consequently, Mr. Hutchings was not required to file the pending complaint either to stop Ocwen from contacting him or to enjoin Ocwen from violating the stay.
4
Second, the only damages Mr. Hutchings claims
are those associated with the prosecution of the pending
complaint,
5
And the only evidence offered to prove
any
damages was evidence of damages that occurred
after
Ocwen ceased its contact with him. No evidence was offered to prove any damages caused by Ocwen’s stay violation.
6
Consequently, the Court must conclude that Mr. Hutchings was not injured by Ocwen’s actions. And as the many cases discussed later in this opinion explain, only an injured party may recover under section 362(h). And that recovery includes costs and attorneys fees.
7
B. Mitigation of Damages
The Court also finds that Mr. Hutchings is not entitled to an award of actual damages, including costs and attorneys fees, because he failed to mitigate his damages. As explained above, the
only damages Mr.
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Hutchings claims
relate to his prosecution of the pending action against Ocwen. There is no evidence that he had any damages before he filed this complaint. And as mentioned above, because Ocweris conduct had ceased, it was not necessary for Mr. Hutchings to take any action to stop that behavior. In contrast, under the law of mitigating damages, Mr. Hutchings had the responsibility to avoid the damages he incurred by not filing his action.
C. Punitive Damages
The Court also finds that Mr. Hutchings is not entitled to punitive damages. According to the preponderance of the evidence, Ocwen’s representatives’ actions were not egregious, vindictive, malicious, or accompanied by bad faith.
VI. FINDINGS OF FACT
A. Mr. Hutchings’ Chapter 13 Bankruptcy Case
Mr. Hutchings borrowed $63,750.00 from Ameriquest Mortgage Company on July 25, 1998. His obligation to repay that loan is represented by a note he executed to Ameriquest in that amount on that date. The note, which is secured' by a mortgage on the debtor’s home, requires repayment of the unpaid principal balance, with interest, in 360 monthly installments. The note is an adjustable rate note. The beginning interest rate was 10.5%. The rate is adjusted every six months based on a specified index. The amount of the monthly payment may fluctuate, of course, depending on the interest rate being charged at any particular time. The amount of the monthly payment for the first six months of the loan, based on the beginning interest rate, was $583.00.
On March 2, 1999, Mr. Hutchings filed a petition under Chapter 13 of the Bankruptcy Code. The attorney who prepared and signed the petition was Mr. William H. Roe, who is now deceased.
In his schedules, Mr. Hutchings listed the debt he owed to Ameriquest but did not identify Ameriquest as the creditor to whom the debt was owed. Instead, he identified Aurora Loan Services as the creditor. Aurora Loan Services, Inc. was the loan servicing agent for Ameriquest.
According to his bankruptcy schedules, on the date he filed his petition, Mr. Hutchings was $1,287.00, or roughly two payments, in arrears on his mortgage payments. According to Mr. Hutchings’ schedules, that amount represented the payments which came due under the note in December 1998 and January 1999. In his “Chapter 13 Plan Summary,” Mr. Hutchings proposed to pay that arrears over a period of 60 months through payments to the Chapter 13 trustee. He proposed to make his current mortgage payments as they came due directly to the mortgagee.
On April 27, 1999, Mr. Hutchings filed an amendment to his petition to add his unpaid, April 1999, $583.15, post-petition mortgage payment. That addition brought his total mortgage arrears to $1,864.15. Once again, he identified Aurora as the creditor for that debt.
On May 5, 1999, Ameriquest transferred the servicing of the loan to Ocwen Federal Bank. And Aurora assigned Ameriquest’s arrearage claim, ostensibly for purposes of pursuing payment of that claim in Mr. Hutchings’ bankruptcy case, to Ocwen. An order authorizing Aurora’s transfer of the arrearage claim to Ocwen was entered in Mr. Hutchings’ bankruptcy case on May 10,1999.
Mr. Hutchings’ proposed Chapter 13 plan was confirmed on May 13, 1999. The plan called for him to pay his current mortgage payments directly to his mortgagee as they come due. In addition he was to pay $82 a week to the standing Chapter 13 trustee for 60 months. In
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turn, the trustee would disburse those funds to pay Mr. Hutchings’ debts, including his mortgage payment arrearage. Inexplicably, the confirmation order lists Aurora as the creditor to whom both the arrearage payment and the current monthly mortgage payments were to be paid. Also, despite Mr. Hutchings’ amendment to add the missed post-petition payment, the order lists the amount of the payment arrearage as $1,281.00.
On July 21, 1999, Mr. Hutchings filed a document styled “Amendment to Schedules,” which, despite the misnomer, was actually a motion to allow Mr. Hutchings to modify his confirmed plan to include an additional $1,750 in unpaid post-petition mortgage payments. Those payments had become due in May 1999, June 1999, and July 1999. To cover that increased amount, Mr. Hutchings proposed to increase his weekly plan payment to $98.00. In the motion, Mr. Hutchings denominated Ocwen as the creditor to receive the payments on the mortgage arrearage from the trustee. The motion was not set for hearing. The notice of the motion issued by the Bankruptcy Court Clerk’s office provides that unless an objection to the relief requested in the motion was filed within 20 days, “the Court may grant the Debtor’s Motion without further notice,” and “[i]f an objection and request for hearing are timely filed, a hearing will be scheduled by a subsequent notice of hearing.”
Notice of Amendment to Schedules and Motion to Modify
(Proceeding No. 17 filed in Bankruptcy Case No. 99-01302-BGC-13 on July 27, 1999). Although there were no objections filed to the motion, an order was not entered either granting or denying the motion. But, Mr. Hutchings did begin making the increased plan contributions requested in the motion.
Ameriquest assigned its mortgage to the defendant, Banc One, N.A., on February 28, 2000. Banc One filed a motion for relief from the stay on March 23, 2000. A hearing on the motion was held on April 18, 2000. The matter was resolved by agreement. The parties prepared and submitted a proposed order embodying their agreement. The Court entered that order on May 5, 2000. It provides:
The automatic stay provided by 11 U.S.C. § 362 (a) is continued in effect but not unless the debtor resumes his regular monthly mortgage payments and further pays to Banc One the additional sum of $4,976.98 which represents all post-petition arrearage, attorney fees and costs through the month of April, 2000 on or before May 4, 2000.
Thereafter, the movant is granted leave to request an immediate hearing to renew the Motion for Relief From Stay should the debtor fail to make any payment when it becomes due, beginning with the payment due May 1, 2000.
Order
entered May 5, 2000, Proceeding No. 34.
In the meantime, on April 7, 2000, the Chapter 13 trustee filed a motion to modify Mr. Hutchings’ plan to require Mr. Hutchings to increase his plan payments to $121 a week. The motion was granted on May 11, 2000.
Around this same time, Banc One changed lawyers. One of its new lawyers filed a motion on October 18, 2000, to have the motion for relief from the stay which Banc One had previously filed on March 23, 2000, and which was purportedly resolved by the agreed order entered May 5, 2000, reset for additional hearings. Banc One’s motion was set for a hearing for November 14, 2000. That hearing was continued to November 28, 2000. No one appeared for Banc One at the hearing on November 28, 2000. Consequently, its motion was denied for failure to prosecute. The merits of the motion were not argued or considered.
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On November 15, 2000, Mr. Hutchings filed a petition to modify his confirmed plan to include both his current mortgage payments and his accumulated mortgage arrearage of $4,498.88. He also asked for his plan payments to be increased to $613.00 biweekly. Mr. Hutchings’ petition to modify was granted on March 12, 2001.
On April 1, 2002, Mr. Hutchings filed a handwritten letter with the Court requesting that he be permitted to refinance his home.
8
The letter was treated as a motion. Accordingly, it was set for hearing on April 4, 2002. Notice of the hearing was provided by the clerk’s office to Mr. Hutchings’ creditors, including Ocwen and Banc One. Mr. Hutchings, Mr. Roe, and Mr. Charles King, the assistant Chapter 13 trustee attended the hearing. The motion was granted on April 26, 2002. But according to his testimony, Mr. Hutchings was not successful in refinancing his home loan.
Mr. Hutchings filed the present adversary proceeding on June 25, 2002.
Mr. Hutchings was granted a discharge on December 5, 2003.
B. Mr. Hutchings’ Testimony
1. Contact from Ocwen
Mr. Hutchings testified that Ocwen began contacting him after this Court entered its April 26, 2002, order that allowed Mr. Hutchings to refinance his home. He testified that the first time that someone from Ocwen attempted to call him was on a Saturday morning (to his home) while he was at work. The record confirms that first call was made on May 11, 2002. Transcript at 162.
The person calling spoke with Mr. Hutchings’ wife, who in turn called Mr. Hutchings at work and gave him a telephone number. Mr. Hutchings called the number and talked to someone named “Jennifer.” He told her that he was in debtor’s court and gave her his attorney’s (Mr. Roe) name and telephone number. Jennifer told him that she would make a note of what he told her. Mr. Hutchings did not make a written note of either the call his wife answered or his call to Jennifer. And he does not remember the date the calls occurred.
According to Mr. Hutchings, he subsequently received a telephone call from a person at Ocwen who identified himself as “Anthony.” Mr. Hutchings testified that, during their conversation, Anthony told him that, “Ocwen wants their damn money.” Transcript, page 166. Again Mr. Hutchings did not make a memorandum of that call and does not remember the date he received that call.
Mr. Hutchings complained to Mr. Roe about the calls. Mr. Roe told him in the future make a note of the name of the person calling and the time and date of the call. He took Mr. Roe’s advice. Ultimately, he compiled a handwritten list of six calls he received from May 26, 2002, through June 3, 2002. That list was admitted into evidence as Plaintiffs Exhibit 13.
Mr. Hutchings testified that he told each Ocwen representative who called that he was in bankruptcy, and he provided the representative with Mr. Roe’s name and telephone number. However, in his deposition testimony, he said that he did not inform any of the Ocwen representatives who called him that he was in bankruptcy, but instead only told them to call his attorney and provided them with Mr. Roe’s name and telephone number. At trial, Mr. Hutchings testified:
*857
Q. Now each time that they called you, Ocwen, based on the times you have just testified to, did you tell them that you had filed bankruptcy when they contacted you?
A. Several times.
Q. But not all of the times?
A. Maybe once I didn’t. The one that I couldn’t talk to was on the answering machine.
Q. Mr. Hutchings, do you remember telling in a deposition to the lawyer for Ocwen back in early May on page 104—
MR. ROSS: Judge, may I approach?
THE COURT: Yes, sir.
Q. I will read you the question on page 104. The question is:
“Each time did you tell them that you had filed bankruptcy when they contacted you?”
If you will read your answer starting on line thirteen.
A. “I didn’t tell them. I told them to call my attorney and gave them the number.”
Transcript, page 197.
According to Plaintiffs Exhibit 13 (Mr. Hutchings’ list of six calls) and his testimony, the following are the calls he received from Ocwen from May 26, 2002, through June 3, 2002.
1. May 26, 2002, at 5:45 p.m. — Mr. Hutchings received a telephone call at home from a representative of Ocwen who, according to him, refused to give him her name or otherwise identify herself. This call appears on Plaintiffs Exhibit 13.
2. May 27, 2002 — Mr. Hutchings went home for lunch and discovered a message on his answering machine from an Ocwen representative. According to the message, Ocwen called to determine when he would pay Ocwen. This call appears on Plaintiffs Exhibit 13.
3. May 28, 2002 — Mr. Hutchings received two telephone calls from “Anthony;” one in the morning at work and a second at home around one o’clock in the afternoon. He told “Anthony” to contact Mr. Roe and again provided him with Mr. Roe’s telephone number. The first call appears on Plaintiffs Exhibit 13. The second does not.
4. June 1, 2002 — “Jennifer” left a message on Mr. Hutchings’ answering machine at home asking him to pay the money he owed Ocwen. This call appears on Plaintiffs Exhibit 13.
5. June 2, 2002 — A female caller, who identified herself as a representative of Ocwen, left a message on Mr. Hutchings’ home answering machine. The message requested Mr. Hutchings to make arrangements to pay the money he owed to Ocwen. This call appears on Plaintiffs Exhibit 13.
6. June 3, 2002 — A person named “Betty,” called and left a message on Mr. Hutchings answering service. She identified herself as an Ocwen representative and asked Mr. Hutchings to contact her about making a payment on his mortgage. She left a number for him to call. This call appears on Plaintiffs Exhibit 13.
The caller identification mechanism on Mr. Hutchings’ telephone indicated that between 8:41 a.m. and 9:45 a.m. on June 2, 2002, 24 calls were made to his home telephone number
from
the number that “Betty” left in her message. He did not, on that occasion, actually speak to Betty or anyone else from Ocwen. Upon discovering that those calls had been made to his house, Mr. Hutchings immediately
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went to his attorney’s office. He said that he took his telephone with him and showed it to Mrs. Roe.
9
Mr. Hutchings first testified that he did not receive any telephone calls from Ocwen’s representatives after June 3, 2002. He later testified that “Jennifer” called him at work on June 12, 2002, and told him that he needed to make arrangements to pay the debt he owed to Ocwen. Mr. Hutchings made a note of that call. His note was admitted into evidence as Plaintiffs Exhibit 19. Mr. Hutchings was sure that the June 12, 2002, call was the last one he received from Ocwen or its representatives. Transcript at 194.
In characterizing the calls he did receive from Ocwen’s representatives, Mr. Hutch-ings testified that none were threatening in nature, or contained any threats, or could be characterized as “threatening.” He testified, “None of them was....” Transcript at 191.
He also testified that none of the callers were rude, and that none of the calls that he received from Ocwen’s representatives could be characterized as rude. The single exception was his conversation with “Anthony” who used the word “damn”. Mr. Hutchings testified:
Q. But my question is the calls, except for the one from Anthony where he used the word profanity, they were not rude or threatening to you; correct?
A. No, no, not in that way. I am not going to lie about it.
Transcript at 192.
Mr. Hutchings testified that he received several letters from Ocwen which he characterized as threatening. He delivered those letters to Mr. Roe. One document he received was a letter dated June 18, 2002, from Banc One’s attorneys advising him that foreclosure had been instituted. Plaintiffs Exhibit 20. Enclosed with the letter was a copy of the mortgage foreclosure notice which indicated that his property would be sold at a foreclosure sale on July 23, 2002. He immediately delivered those to Mr. Roe’s office. Mr. Roe was not in; he gave them to Mrs. Roe.
Mr. Hutchings testified that when he went to Mr. Roe’s office, most of the time he spoke with Mr. Roe’s wife, who worked in the office. But, he did say he spoke with Mr. Roe about the contacts he had received from Ocwen’s representatives, “over seven or eight times.... ” But he added he spoke with Mrs. Roe about those contacts, “About four or five times.... ” Transcript, page 174-75. He said that on several occasions Mrs. Roe called Ocwen for him, in his presence.
2. Damages
a. No Damages Occurred
Before
Mr. Hutchings Filed His Complaint
Mr. Hutchings did not testify that he was injured by Ocwen’s stay violation and his testimony does not contain any proof that he suffered any damages because of Ocwen’s stay violation. As discussed later, the only evidence presented in regards to actual damages related to lost wages, the cost of gasoline, and attorneys fees, all of which occurred after he filed his complaint.
(1) Lost Wages
Mr. Hutchings testified about his lost wages. He was specific about the time he lost and the reason for losing that time. On direct examination Mr. Hutchings explained the amount of his damages for missing work. He testified:
Q. And do you remember the number that we submitted that you gave us?
A. One week.
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Q. One week’s worth of work?
A. Uh-huh.
Q. Was that the eight hundred dollar figure?
A. That’s right.
Q. So you estimate that you have missed about one week’s worth of work in dealing with all of this?
A. That’s correct.
Q. And that is eight hundred dollars?
A. Yes.
Transcript at 157.
On cross examination, he explained the reason why he missed work. He testified:
Q. How much income did you lose from your employment as a result of tending to this with Mr. Roe and coming down here today?
MR. TOFFEL: Judge, he has already answered that, I thought.
THE COURT: Well, it is cross-examination. He can go into it.
A. Eight hundred dollars is what I told him, plus today.
Q. That is including today, eight hundred dollars?
A. No, plus today.
Q. Okay. Eight hundred dollars even, right?
A. Yeah, for the week I lost.
Q. Is it your testimony you make eight hundred dollars .a week working at Valley Ford?
A. I make eighteen dollars an hour.
Q. But back in 2002 you told me you made—
A. I made fourteen dollars an hour, plus commission. I made more money back then than I do now.
Q. But didn’t you testify in your deposition that you accumulated some vacation time and you really didn’t lose quite that much money?
A. No, no. I don’t use vacation unless I go with my wife.
Q. All right. So you didn’t use vacation time back in 2002?
A. No, I didn’t.
Q. And you made eight hundred dollars a week back in 2002; correct?
A. I made more than that.
Q. Eight hundred dollars a week?
A. I made more than eight hundred dollars.
Q. Now, do you have any pay stubs or other documentation that you brought to court?
A. No. I have some at home.
Q. For all of this time that this case has been pending you haven’t shared that with anybody else; correct?
A. No, I haven’t.
Q. Okay. And back at that time it was twelve dollars an hour times forty hours a week; correct?
A. Uh-huh.
Q. Four hundred and eighty dollars?
A. Four eighty.
Q. And then the difference between eight hundred and four eighty would have been commission that you would have made had you been there, correct?
A. That’s right.
Q. But you didn’t really take off a full week of work during that time; did you?
A. I took one or two days through that.
Q. Okay. So if you got a letter when you would go home, as you testified, and it was from Oewen, you would go run to Mr. Roe’s office; correct?
A. Well, I was right there at Mr. Roe’s office.
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Q. But the week’s worth of work that you lost wasn’t in one week, though, was it?
A. It was running around in this courthouse or something like that.
Q. All right. So one week included time at Mr. Roe’s office, correct?
A. No, it didn’t have anything — I can pass by Mr. Roe’s office going home.
Q. So one week of running down to this courthouse; right?
A. Running around to different places — courts, trying to get—
Q. Well, you went to Mr. Toffel’s office; correct?
A. That’s right.
Q. How many times did you go to his office?
A. I went down twice.
Q. Two times. That was one day each time?
A. Uh-huh.
Q. So it was two days at Mr. Toffel’s office; correct?
A. Uh-huh.
Q. And one other time did you run to the courthouse?
A. I have been down here several times. Every time I come down here, they put the case off. That has been going on three years.
Q. How many times have you been to this courthouse?
A. Several times.
Q. Do you remember how many?
A. Well, it might have been five or six. I didn’t have to stay.
Q. So you took off all day if you didn’t have to stay?
A. Well, my time is worth something, sir.
Q. Okay. So if you got here in the morning and the case got continued, you didn’t go back to work; correct?
A. Yes, sir, I went back. I went back by there.
Q. But you know it is forty hours even, correct?
A. I know it is forty hours even.
Q. Not thirty-nine?
A. No, not thirty-nine.
Q. And not forty-one?
A. No, sir.
Q. And then we are talking about missing work for today; right?
A. That’s right.
Transcript at 181-84 (emphasis added).
What is conspicuously absent are any wages he lost because of time he was required to spend dealing with Ocwen’s stay violation. While Mr. Hutchings described time he spent working with his attorney before he filed the pending complaint, he clearly suggested that he did not suffer any damages because of that time.
Mr. Hutchings testified:
Q. Do you have an estimate as to how many times you talked with Mr. Roe about these contacts from Ocwen? Not refinancing but just this thing that we are here on today.
A. I know it would have to be over seven or eight times I have been in his office with—
Q. With Mr. Roe?
A. With Mr. Roe, not counting Mrs. Roe.
Q. How many times with her?
A. About four or five times with her.
Q. Okay.
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A. I have sat with her and watched her fax papers for me to Ocwen.
Transcript at 174-75.
But apparently, Mr. Hutchings did not suffer any damages through the loss of wages or the like because of the time he was required to spend with Mr. or Mrs. Roe. As quoted above, he testified:
Q. Okay. So if you got a letter when you would go home, as you testified, and it was from Ocwen, you would go run to Mr. Roe’s office; correct?
A. Well, I was right there at Mr. Roe’s office.
Q. But the week’s worth of work that you lost wasn’t in one week, though, was it?
A. It was running around in this courthouse or something like that.
Q. All right. So one week included time at Mr. Roe’s office, correct?
A. No, it didn’t have anything — I can pass by Mr. Roe’s office going home.
Q. So one week of running down to this courthouse; right?
A. Running around to different places' — courts, trying to get—
Transcript at 183 (emphasis added).
As discussed below, any lost wages Mr. Hutchings suffered because of the time he spent dealing with Ocwen’s stay violation occurred
after
he filed the pending complaint, primarily because of his visits to this Court.
10
(2)Medical Expenses
In regard to other damages he might have suffered because of Ocwen’s stay violation, Mr. Hutchings testified that he did not require medical attention because of the calls and letters that he received from Ocwen. He said that he has high blood pressure, but that the condition existed prior to his first receiving any of those calls and letters, and that he had been receiving medical treatment for that condition prior to his first receiving any of those calls and letters. He claimed, however, his dealings with Ocwen “... kind of raised [his blood pressure] up.” Transcript, page 176 (parenthetical added).
(3)Fees or Costs
Mr. Hutchings did not testify that he incurred, or actually owes, any attorneys fees as a result of Ocwen’s purported stay violation, or for the institution or prosecution of this adversary proceeding. To the contrary, he specifically testified that he has
no
agreement with his attorneys regarding the amount or payment of any compensation to them for the work involved in this adversary proceeding:
Q. Mr. Hutchings, do you have any agreement with your attorney on attorney fees?
A. No, I don’t.
Q. Do you have any written contract with him in regard to attorney fees? A. No, I don’t.
Transcript at 196-97.
(4)Personal Expenses
Mr. Hutchings suggested that “this Ocwen deal” was the genesis of some personal difficulties between his wife and him:
Q. Relating to the problems about what we are here about today, not about the refinancing, what, if any, other problems have you personally had?
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A. Well, like I said in my deposition, it has caused me and my wife to separate for six months behind this, with this Ocwen deal. See, I have been trying to get out from under them for a pretty good while. That is what I was trying to say. The refinancing don’t bother me. Trying to get out from under Ocwen do. See, what Ocwen, they don’t understand, they — I am going to say it again. They have overcharged me for what they bought.
Transcript, page 179.
Mr. Hutchings did not provide any additional information and the Court cannot make any determination solely from his one line conclusory accusation that Ocwen’s telephone calls and letters representing Ocwen’s purported stay violation were the cause of Mr. Hutchings separation from his wife. Clearly, he did not specifically testify that the telephone calls and letters caused his separation. Therefore, any conclusion with respect to the cause of that separation and its connection, if any, to the actions of Ocwen’s representatives must be based on pure speculation, which of course, is impermissible.
Regardless, Mr. Hutchings did not suggest that he is seeking any form of damages for said separation.
Moreover, it is apparent from Mr. Hutchings testimony, taken as a whole, and from the context in which he tersely mentioned his separation, that when he speaks of “this Ocwen deal” he is referring primarily to the difficulties he had in attempting to have the debt he owes to Banc One refinanced. According to Mr. Hutch-ings, those difficulties arose because of his disagreement with the pay-off figure provided to him by Ocwen. He claimed that amount was excessive.
b. Damages Occurred in Connection with Filing His Complaint
In contrast to the above, all of the damages Mr. Hutchings claims,
and all proven,
are those associated with his prosecution of the pending adversary proceeding. Those damages were incurred either in preparing to file the suit or in preparing for court appearances after the suit was filed. Whichever, this record is absolutely clear. Whatever the damages were incurred, are damages that arose
after
Ocwen ceased its contact with him and after his attorney had confirmed that such contact would not reoccur. Those damages are discussed below. .
(1) Lost Wages
Mr. Hutchings is claiming actual damages of $800. That amount represents wages and commissions he did not earn from missing about 40 hours of work. While Mr. Hutchings may have missed 40 hours and therefore did not earn $800 from that time, the missed time he identified at trial is easily identified as time spent in prosecution of his lawsuit after that suit was filed.
As quoted above, Mr. Hutchings testified that the time he lost from work was time spent, “running around in this courthouse or something like that.” Transcript at 183. He added, “Running around to different places — courts....”
Id.
Mr. Hutchings did not specify what “courts” he was referring to although it is apparent that he was talking about this bankruptcy court. He explained, “I have been down here several times.” Transcript at 184. He estimated that he has come to the bankruptcy court five or six times, but that each time he came, “they put the case off.”
Id.
Mr. Hutchings added that some of the time he lost was time he spent because he
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was required to go to Mr. Toffel’s office twice.
In contrast to the time he spent after Ocwen ceased its contact, Mr. Hutchings specifically testified that he did not lose any time from work as a result of the trips that he made to Mr. Roe’s office, visits that would have probably occurred
during the time of Ociven’s stay
violation. His testimony explicitly explains why he lost time from work after he filed the pending adversary proceeding as compared to not losing any time before. He testified:
Q. Okay. So if you got a letter when you would go home, as you testified, and it was from Ocwen, you would go run to Mr. Roe’s office; correct?
A. Well, I was right there at Mr. Roe’s office.
Q. But the week’s worth of work that you lost wasn’t in one week, though, was it?
A. It was running around in this courthouse or something like that.
Q. All right. So one week included time at Mr. Roe’s office, correct?
A. No, it didn’t have anything — I can pass by Mr. Roe’s office going home.
Transcript, page 183.
At the time of trial, Mr. Hutchings worked as an auto technician for Valley Ford in Oneonta, Alabama. He worked on commission and was guaranteed a certain salary. From those sources, his average hourly rate was eighteen dollars.
Mr. Hutchings also explained that by not working during the time spent at the trial on this matter he also would lose $144 in wages.
(2) Gasoline
According to his testimony, Mr. Hutch-ings’ problems with Ocwen also cost him about $50 for gasoline he used traveling back and forth to his attorney’s office and the bankruptcy court. He lives about 45 to 50 miles from the bankruptcy courthouse.
c. Summary of Mr. Hutchings Testimony about the Damages He Claims
In summary, given the complexity of the facts in this matter, this Court cannot overemphasize Mr. Hutchings’s testimony that the only damages he claims are compensatory damages for lost wages and travel reimbursement. On cross examination he stated:
Q. And just the forty hours even and the travel time today is what you are asking the court for compensatory damages; correct?
A. That is right.
Transcript at 195-96.
And the record is equally clear in regard to those specific damages, whether any occurred before Mr. Hutchings filed his complaint or not, that the only damages Mr. Hutchings
proved
are those that occurred
after
he filed his complaint against Ocwen.
11
C. Testimony of Mrs. Doris Roe
Mrs. Doris Roe and Mr. Bill Roe, Mr. Hutchings former bankruptcy attorney, were married for about 30 years. Mr. Roe is deceased. While they were married, Mrs. Roe managed Mr. Roe’s law office.
Mrs. Roe testified that Mr. Hutchings came into the office several times regarding telephone calls he received from Ocwen. She did not testify who, according to Mr. Hutchings, had called him, or how many phone calls he had received. She testified that she explained to Mr. Hutch-ings that if he received additional calls from Ocwen that he should write down the
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date and time of the call and the name of the person calling.
Regarding the calls Mr. Hutchings had already received, she testified that she, “immediately turned [Mr. Hutchings] over to Mr. Roe to handle, and they worked through that....” and that she presently, “can’t say for a fact what happened there.” Transcript at 22-23 (parenthetical added). The history of these calls and related activities are discussed below.
On May 24, 2002, Mrs. Roe talked with someone named “Mr. Garfield,” an Ocwen representative. She made contemporaneous notes of that conversation which were admitted into evidence as Plaintiffs Exhibit 12. Mrs. Roe telephoned Mr. Garfield because of Mr. Hutchings’ representations about the Ocwen telephone calls and the information he received that Ocwen was prepared to foreclose his mortgage. Mr. Hutchings specifically asked her to call Ocwen. When she called she was referred to Mr. Garfield, who told her that he was in possession of an order from this court dated April 26, 2002, dismissing Mr. Hutchings’ case.
The record in this case reflects that an order was entered in this case on April 26, 2002, granting Mr. Hutchings motion to refinance his home loan. No order dismissing his case was entered.
Mrs. Roe attempted to explain to Mr. Garfield that the April 26, 2002, order did not dismiss Mr. Hutchings bankruptcy case. Mr. Garfield told her that the order he possessed reflected that the case had been dismissed; however, he did not read the order to her or explain its content. Mrs. Roe responded that regardless of the document he was relying on, the case was still open and the mortgage payments were being made through Mr. Hutchings’ Chapter 13 case. In addition, she expressed her desire that he and other Ocwen representatives should refrain from calling Mr. Hutchings.
Mr. Garfield asked Mrs. Roe to send a copy of the April 26, 2002, order to him by facsimile She attempted but was unsuccessful. Apparently the facsimile number provided to her was not operational. She called Ocwen and spoke to Mr. Richard Morris, another representative. Mr. Morris told her to send the document to him. He provided another number. Mrs. Roe testified that she then successfully sent a copy of the April 26, 2002, order to Mr. Morris by facsimile.
The next contact Mrs. Roe had with Mr. Hutchings was when he brought in the June 18, 2002, letter he received from Ocwen’s attorneys notifying him of the impending foreclose. A notice of foreclosure was included with that letter. Plaintiffs Exhibit 20. After reviewing those documents, Mrs. Roe immediately called Mr. Ledyard, the attorney who signed the letter. He was not in his office. Mrs. Roe spoke to his secretary. Mrs. Roe told Mr. Ledyard’s secretary about her dealings with Mr. Garfield and Mr. Morris. In addition, she told the secretary that the foreclosure was improper and demanded that it be discontinued.
Mr. Ledyard called Mrs. Roe within the hour. Mr. Ledyard told her that he had relayed her message to his client, and that his client agreed that foreclosure was improper. Mr Ledyard directed the foreclosure be discontinued. Transcript at 29-31.
Mr. Ledyard followed the telephone call with a facsimile of June 21, 2002, that included the same information and intentions. That letter reads in pertinent part:
This will confirm our conversation that we have communicated to our client your concern about the validity of the foreclosure of the above referenced file. Apparently, our client has confirmed it does not have the authority to proceed with foreclosure and therefore, has in
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structed us to stop any foreclosure actions immediately.
Plaintiffs Exhibit 24 (emphasis added).
12
The pending complaint was filed on June 25, 2002.
13
D. Ocwen’s Comment/History Log and Other Exhibits, and the Testimony of Mr. Kurt Bryant, an Ocwen Representative
Mr. Kurt Bryant is a default servicing liaison at Ocwen. He researches litigated accounts. He began researching Mr. Hutchings’ account about two weeks before his May 7, 2004, deposition. He reviewed Mr. Hutchings’ note and mortgage, as well as, “his files, his comment log, history, his transaction payment history, all of his origination docs, things of that nature.” Transcript at 36.
Based on his review, Mr. Bryant concluded that Ocwen violated the automatic stay in Mr. Hutchings’ bankruptcy case, “about four or five times.” Transcript at 39. His opinion was that the violations were the result of human error. He stated that the first error occurred when Ocwen’s bankruptcy coordinator, Mr. B.S. Praveen, removed the bankruptcy flag from Mr. Hutchings’ account. Mr. Bryant explained that a bankruptcy flag is ordinarily placed on an account when someone files bankruptcy so that any one working on the account will know not to call the borrower and to be certain to abide by all of Ocwen’s rules and regulations relating to borrowers in bankruptcy. When Mr. Hutchings filed his bankruptcy case, a bankruptcy flag was placed on his account. Mr. Praveen removed the flag from Mr. Hutchings account on May 9, 2002.
Mr. Bryant identified Plaintiffs Exhibit 3, which is entitled “Comments/History log for 3751229,” as, “a log of basically the customer service and all of the phone calls and dealings with this account from a day-to-day basis.” Transcript at 37. According to Mr. Bryant, the log should reflect, and in this case does reflect, every contact with Mr. Hutchings by Ocwen’s employees and every communication between Mr. Hutchings and Ocwen’s employees regarding Mr. Hutchings’ account. It does not, however, reflect, and is not intended to reflect, the activities of Ocwen’s attorneys, including any communications or contact between Ocwen’s attorneys and Mr. Hutchings or his attorney.
Mr. Bryant did not speak to Mr. Pra-veen about the reason the bankruptcy flag was dropped. Apparently Mr. Praveen no longer worked with Ocwen when Mr. Bryant started reviewing the account. The ostensible reason the flag was removed is however reflected in the accounts “eomment/history log.” The notation describing that event reads:
BK RELIEF MOTION GRANTED, ORDER SIGNED as per pacer, relief was granted on 4/26/2002.
Plaintiffs Exhibit 3 at 10.
According to Mr. Bryant, that log entry reflects that Mr. Praveen removed the bankruptcy flag from the account because he believed that an order granting Ocwen relief from the stay had been entered by this Court. According to Mr. Bryant, the
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information from Pacer Net, (one of the Judiciary’s electronic docket systems), was not erroneous. The docket entry simply reflected that an order had been entered and provided a “bullet” for the reader to select to read the order. The docket entry did not reflect that the order entered related to the automatic stay. Mr. Praveen’s interpretation of what he saw on Pacer Net, which interpretation prompted him to remove the bankruptcy flag from Mr. Hutchings’ account was, therefore, necessarily erroneous. He apparently did not read the order, an order that would have explained that it did not relate to the automatic stay but related only to Mr. Hutchings’ request for permission to refinance his mortgage. For whatever reason, the flag was removed and Ocwen proceeded with its collection efforts.
Mr. Bryant testified that Ocwen has procedures designed to prevent its representatives from contacting borrowers who are in bankruptcy. He did not know and could not explain why those procedures failed to identify Mr. Praveen’s mistake in Mr. Hutchings’ case until after Ocwen’s representatives had contacted Mr. Hutch-ings several times. Consequently, after the bankruptcy flag was dropped, Mr. Hutchings began receiving letters and telephone calls from Ocwen regarding his past due mortgage payments.
Similarly, according to Ocwen’s practice and procedure at the time, after the bankruptcy flag was dropped from Mr. Hutch-ings’ account, the account was programmed into an automatic dialing system. Under that system, collectors who talk with delinquent borrowers over the telephone do not have discretion to select which accounts they review or which individuals they call. The computerized telephone system randomly selects and automatically dials the telephone numbers of account debtors. The collectors job is simply to talk to the account debtor whose telephone number has been called. The collectors are not assigned exclusive accounts. They do not have paper files. And they even do not physically dial the telephone. And in particular, collectors are not permitted to initiate telephone calls independently of the automatic system. To do so would violate Ocwen’s instructions. In short, collectors conduct calls directed to them by the computer.
Mr. Bryant explained that once the dialing system initiates a telephone call, the system automatically makes a record of the call in the computerized account history log. The system simultaneously projects the information contained in the log onto the collector’s computer screen. In that way, the collector knows to whom he or she is calling and will have the information that he or she will need to discuss the account. The collector’s job is to discuss the account with the debtor. Once the conversation with the debtor, (or whomever he or she has spoken with), has been completed, the collector manually records the results or substance of the conversation in the log.
Mr. Bryant testified that Ocwen’s policies and procedures specifically require its collectors to record the essence of all conversations into the log and that they are specifically trained and directed to do so. Failure by a collector to log the substance of a telephone call into the log would constitute a violation of Ocwen’s policies and procedures and would be a direct violation of instructions given to them by their employer.
In practice, a collector would have no incentive not to log a telephone conversation with an account debtor. The collector’s compensation is, in part, based on what he or she collects. Consequently, if the account debtor were to pay something on the account after speaking with the collector, and the collector did not log the
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conversation, the collector would not receive the incentive bonus he or she would otherwise have become entitled to receive since there would be no record that the payment was made in response to his or her call.
Mr. Bryant testified that, if the collectors are unsuccessful in their efforts to collect the loan, the loan is referred to “loan resolution consultants.” The loan resolution consultants are the only people who are authorized to initiate telephone calls to the borrowers or the borrowers’ attorney. He testified, “They are the only ones that dial the phone numbers.” Transcript at 62. He added that their job is to, “do what they can to work out a solution with the borrower.” Transcript at 80.
Mr. Hutchings’ account history log indicates that his loan was assigned to the loan resolution consultants on June 3, 2002. Any calls made to Mr. Hutchings’ attorney either before or after that date were made manually by loan resolution consultants. And the only call, according to the account history log, made directly to Mr. Hutch-ings after that date, June 11, 2002, to be precise, was made manually by a loan resolution consultant. All of the calls made directly to Mr. Hutchings before June 3, 2002, were dialed by the automatic dialing system. And any conversations with Mr. Hutchings because of those automatic dialings were with collectors. Each of the automatically dialed calls, which, according to the log, numbered 10, can be readily identified on the log by the presence of the annotation “Davox Phone Call Out” in the comments section which appears to the right of the call.
Mr. Bryant testified that he works in the Orlando, Florida office with the collectors. His work station is approximately five feet away from a large room where the collectors work at individual desks. In fact, from his office he can observe all of the collectors when they work. There are from 50 to 100 collectors working in that area. Each performs work on hundreds of accounts every week.
Mr. Bryant conceded that it would have been possible for a collector to have initiated a call to Mr. Hutchings but not logged the call. He stated, however, that, in his experience, is it unlikely that any collector actually initiated a call to Mr. Hutchings and, furthermore, that any collector had a conversation with Mr. Hutch-ings that he or she failed to record on the log. Moreover, he has no personal knowledge of any case in which a collector’s telephone conversation with an account debtor was not posted to the log.
Mr. Bryant testified that it is unlikely that any collector used profanity in any conversation with Mr. Hutchings because it is likely that such language would have been overheard, subjecting the collector to discipline. Moreover, the distinct probability of being overheard and disciplined for such inappropriate language would have, more than likely, been sufficient to have dissuaded any collectors from using profanity with Mr. Hutchings, or with any other account debtor. The collectors’ desks are, as he explained, all in one large room, arranged in diagonal rows. Each row includes five or six collectors. Each row of collectors is flanked on both sides by supervisors’ desks. Consequently, it is unlikely that a collector could say anything inappropriate to an account debtor without being overheard by a supervisor. He testified, “And if it was heard, the supervisor would probably taeMe the guy.” Transcript at 118.
In addition, for oversight, Ocwen randomly records conversations between its collectors and account debtors. Furthermore, collectors are randomly checked by Ocwen’s quality assurance department regarding their behavior, demeanor, and, as Mr. Bryant explained, “how they speak to
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borrowers.” Transcript at 74. Mr. Bryant admitted, however, that he did not talk to any of the collectors who, according to the log, made phone calls to Mr. Hutch-ings and cannot, for that reason, testify of his personal knowledge that anyone who called Mr. Hutchings used profanity.
1. Correspondence
The evidence reflects that Mr. Hutch-ings received five items of correspondence from Ocwen and its attorneys between May 10, 2002, and June 21, 2002, relating to the collection of his mortgage deficiency-
a.May 10, 2002
The first correspondence, dated May 10, 2002, purports to have been initiated and authored by the law firm of “Moss, Codilis ... ” et al. Plaintiffs Exhibit 9. However, according to Mr. Bryant, that letter was automatically initiated and generated by Ocwen’s computer system after the “bankruptcy flag” was dropped from Mr. Hutchings’ account. He testified, “The instruction is, once the BK flag drops, the demand letter goes out which you have seen.... ” Transcript at 62. Apparently when the bankruptcy flag was dropped, a computer generated the letter and directed it to be mailed. No attorney, or collector, or other person had any hand in composing that letter, or requesting that it letter be sent to Mr. Hutchings, or in making the decision to send the letter. Mr. Bryant testified:
Q. Did the computer for Ocwen automatically then send out the thirty-day demand letter?
A. Yes, it did.
Q. No individual physically made that decision once the flag, to use your language, was lifted; correct?
A. That’s correct.
Transcript at 96-97.
Ocwen’s first letter notified Mr. Hutch-ings: (1) he was in default; that the amount necessary to cure the default was $16,899.77; (2) demanded he cure the default within 33 days from the date of the letter; and (3) informed him that his mortgagee would exercise its rights under the mortgage, including the right to accelerate and foreclose, if he did not pay the full amount of the default within the designated time period. The letter furthermore informed Mr. Hutchings that “Moss, Codi-lis,
et al.,”
would not contact him at work by telephone if he would send them a written request that he not be contacted at work; and that “Moss, Codilis,
et al.,”
would not contact him at all, except by legal action, if he would send them a written request that he not be contacted except by legal action.
b. May 22, 2002
The second correspondence, dated May 22, 2002, contained no demand, but instead offered Ocwen’s assistance in helping Mr. Hutchings resolve his deficiency and informed him that there were several alternatives. The correspondence is conciliatory and suggests a cooperative relationship between the parties with the common goal of facilitating Mr. Hutchings’ efforts to keep his home. It reads in part:
Ocwen is here to build a mutually beneficial relationship, rectify any problems, resolve any issues and assist you with your needs. We are experienced in assisting our borrowers in resolving their delinquency and would like to present you with some of the alternatives that you may have available regarding your delinquent loan.
Plaintiffs Exhibit 11.
c. June 4, 2002
The third correspondence, dated June 4, 2002, also purports to have been authored by the law firm of “Moss, Codilis,
et al.”
but was, according to Mr. Bryant, actually initiated by Ocwen’s computer system.
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Plaintiffs Exhibit 15. It informed Mr. Hutchings that “Moss, Codilis,
et al”
had been engaged by Ocwen to contact him regarding his delinquent mortgage loan and to work with him on Ocwen’s behalf to resolve that delinquency and avoid foreclosure. It requested certain financial information through a form included with the letter and explained alternatives to foreclosure. Those included taking advantage of “an alternate payment method” which might permit him to cure his default and retain his home. The correspondence read, “While it is our primary objective to assist Ocwen in the collection of past due amounts on your loan, we do want to work with you to find the best available alternative for you and our Client to bring your mortgage loan obligation current.” Plaintiffs Exhibit 15.
d. June 18, 2002
The fourth correspondence, dated June 18, 2002, was authored by and sent to Mr. Hutchings by Ocwen’s outside counsel, “Pierce, Ledyard,
et al.”
Plaintiffs Exhibit 20. The letter informed Mr. Hutchings that foreclosure proceedings had been instituted. Enclosed with the letter was a foreclosure notice which indicated that a foreclosure sale would take place on July 23, 2002, for the purpose of satisfying the mortgage debt owed by Mr. Hutchings.
e. June 21, 2002
The fifth correspondence, dated June 21, 2002, also purports to have been authored by the law firm of “Moss, Codilis,
et al.”
but was, according to Mr. Bryant, actually initiated by Ocwen’s computer system. Plaintiffs Exhibit 22. It reiterated to Mr. Hutchings that a foreclosure sale had been scheduled and implored him to contact Ocwen for the purpose of discussing possible alternatives that might preserve his credit and save his property. The correspondence provided:
Although Moss, Codilis has made several attempts to contact you regarding the serious situation concerning your home, we have received no response from you.
A FORECLOSURE SALE HAS BEEN SCHEDULED ON THE ABOVE-REFERENCED PROPERTY.
We urge you to contact us to:
1. Discuss possible alternatives;
2. Preserve your credit; and
3. Save your property
PLEASE CONTACT ME UPON RECEIPT OF THIS LETTER.
Plaintiffs Exhibit 22.
f.Information from the Correspondence
In hindsight, while it may not have been the best idea, with the exception of the foreclosure letter that Ocwen’s outside counsel sent to Mr. Hutchings, all of the letters sent to Mr. Hutchings were generated by Ocwen’s computer. The collectors did not compose the letters and had no discretion to change them. The collectors did not personally prepare, handle, or mail the letters. They did not put the letters into envelopes, or take the envelopes to the company mail room, or put them in the mail. And, except for the first letter, which is dated May 10, 2002, the collectors simply requested that the letters be sent and filled in the applicable information or figures relative to Mr. Hutchings’ account.
Mr. Bryant testified that Ocwen’s procedures require that correspondence sent to a borrower or the borrower’s representative also be recorded on the account history log. He said that he has no personal knowledge of any case in which an item of correspondence sent to a borrower or the borrower’s representative was not recorded in the applicable account history log. Indeed, all of the letters described above, which have been admitted into evidence, are referred to and described in the account history log which was maintained by
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Ocwen for Mr. Hutchings’ loan. Mr. Bryant acknowledged, however, that Plaintiffs Exhibit 4, which purports to be an “Adjustable Rate Mortgage Payment Change Notice” dated December 27, 2001, that was ostensibly (according to the information on the letter) mailed by “Ocwen’s Loan Servicing Department” to Mr. Hutchings, is not on the log.
On direct examination, Mr. Bryant was asked whether or not a record of Ocwen’s receipt of the last page of Plaintiffs Exhibit 5, (which purports to be a letter that was ostensibly sent by facsimile by Mr. Roe to an Ocwen representative named Ernie Santiago), appears on the log. In that letter, which is dated February 26, 2002, Mr. Roe requested a detailed breakdown of the amount needed to payoff Mr. Hutch-ings’ mortgage loan. After first reviewing the log, Mr. Bryant was unable to find an entry that described the facsimile from Mr. Roe to Mr. Santiago, and, therefore, testified that the log did not reflect Ocwen’s receipt of the document. However, upon further review of the log, on cross-examination, he was able to locate an entry on the log made by Mr. Santiago on March 13, 2002, which reflects Ocwen’s receipt of Plaintiffs Exhibit 5. The fact that the entry was made by Mr. Santiago, who was the intended recipient of the fax, supports Mr. Bryant’s conclusion that the entry reflects Ocwen’s receipt of the document. Furthermore, the log entry reads, “Received Payoff Quote Request: (1) William H. Roe...” That of course, coincides with the fact that Mr. Roe’s letter was, in fact, a “payoff request.” Plaintiffs Exhibit 3, page 13.
There is no evidence that any other item of correspondence was sent by either Mr. Roe or Mr. Hutchings to Ocwen during that period. Also, the accuracy of Mr. Bryant’s revised conclusion is supported by the fact that Mr. Roe’s otherwise typed letter bears a handwritten notation, purportedly authored by Mrs. Roe (since it bears the signature “doris roe”), which reads, “4th Request 3-13-02,” because that date coincides with the date of the log entry referred to by Mr. Bryant. Plaintiffs Exhibit 5 (last page). Those circumstances suggest that it is more likely than not that the March 13, 2002, log entry describes Ocwen’s receipt of that letter. Consequently, it cannot be concluded that, as Mr. Hutchings insists, a record of Ocwen’s receipt of Plaintiffs Exhibit 5 does not appear on the log.
On direct examination Mr. Bryant was also asked whether a record of Ocwen’s receipt of Plaintiffs Exhibit 8, purporting to be a letter drafted by Mr. Roe on May 2, 2002, appears on the log. The letter, which requests additional information regarding the interest element of the payoff amount claimed by Ocwen in relation to Mr. Hutchings’ anticipated refinance of his home loan, was apparently signed by Mrs. Roe for Mr. Roe, as the initials “dr” appear on the document directly underneath signature “William H. Roe.” The letter’s intended recipient was, once again, Mr. Ernie Santiago.
Again, after a review of the log, Mr. Bryant was unable to locate an entry which he could identify as Mr. Roe’s May 2, 2002, letter. The log, however, reflects an entry made on May 17, 2002, which may reflect Ocwen’s receipt of Plaintiffs Exhibit 8. The entry reads, ‘Written customer correspondence received via mail.” Plaintiffs Exhibit 3 at 15. The next entry on the log, which was also made on May 17, 2002, only a few seconds after the entry described by Mr. Bryant, reads, “Written Inquiry Received.” Mr. Roe’s letter indeed constitutes “written customer correspondence,” as referred to in the first May 17th entry, and, as well, constitutes an “inquiry” as referred to in the second May 17th entry.
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When asked about those entries on cross-examination, Mr. Bryant testified that he does not think that they refer to Mr. Roe’s May 2, 2002, letter. He did not explain why he did not think that those entries referred to Mr. Roe’s letter. Nevertheless, he was given the opportunity to review the log again. After that review he was able to locate an entry which may describe Ocwen’s receipt of Mr. Roe’s May 2, 2002, letter. That entry, which is dated May 23, 2002, reads, “Written Inquiry Completed; Boroeres [sic] attorney expressed concern regarding the interest owed on this loan. Would like an explanation. Will raise flag. Details: done.” Plaintiffs Exhibit 3 at 9.
Indeed, Mr. Roe’s May 2, 2002, letter, expressed concern regarding the interest Oewen was claimirfg Mr. Hutchings owed on his loan. There is no evidence that either Mr. Roe or Mr. Hutchings, or anyone on Mr. Hutchings behalf, mailed any other item of correspondence to Oewen during that same time period. Those circumstances suggest that it is more likely than not that the log entry made on May 23, 2002, reflects Ocwen’s receipt of Mr. Roe’s May 2, 2002, letter. Moreover, given those circumstance, and despite Mr. Bryant’s unexplained and otherwise inexplicable opinion to the contrary, it cannot be concluded that Mr. Roe’s letter is not also the subject of the two entries made to the log on May 17, 2002, as described above. Consequently, it cannot be concluded that, as is insisted by Mr. Hutch-ings, the log does not reflect Ocwen’s receipt of Plaintiffs Exhibit 8.
In contrast, according to the account history log, Oewen did not receive the facsimile of the April 26, 2002, order that Mrs. Roe said that she sent to Mr. Morris’ attention on May 24, 2002. Mr. Bryant, of course, cannot, say, of his own personal knowledge, whether or not Oewen received that item. He did not ask “Mr. Morris,” the intended recipient, whether the item was received. The fact that it is not on the log suggests to Mr. Bryant that Oewen never received it. The company’s rules of procedure require all incoming documents, whether received by facsimile or otherwise, to be “imaged” and posted to the account history log. Transcript at 137. According to Mr. Bryant, that belief is bolstered by the entry on the log, dated May 28, 2002, subsequent to the date Mrs. Roe purportedly sent the facsimile. That entry relates to a conversation by one of Ocwen’s collectors with Mr. Hutchings, in which the collector told Mr. Hutchings that Ocwen’s records did not reflect receipt of anything similar. The entry reads:
Davox Phone Call Out; Customer Contact — No Commitment; tb .. tt mr he sed that he does not know why we are still calling him ... advsd him that we do not hav the info for the BK .... he sed that his attrny faxed it to Moss ... advsd him that I do not show anything on it ... he will hav his attrny cb later tdy ....
Plaintiffs Exhibit 3 at 9.
According to his interpretation of the log, Mr. Bryant testified that between the time the bankruptcy flag was dropped May 9, 2002, and June 21, 2002, when Oewen realized that the flag had been dropped, Mr. Hutchings was called no more than 11 times by Ocwen’s automated collection call system. He testified that Mr. Hutchings was not reached on most of those calls as a collector spoke to him only on three of those occasions. However, in response to messages left for him by the various collectors who attempted to contact him, Mr. Hutchings called Oewen on three occasions. On one of those occasions, he was asked to call back because of problems with Ocwen’s computer system. On the
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other two occasions, Mr. Hutchings had conversations with Ocwen’s representatives.
14
2. Telephone Calls
The log of transactions for Mr. Hutch-ings’ account, (Plaintiffs Exhibit 3), includes 19 telephone calls made either to or from Ocwen between May 9, 2002, and June 21, 2002. Those include, as explained in detail below, eight calls completed to either Mr. Hutchings’ home telephone or his work telephone. It also includes five incoming calls made to Ocwen telephones by Mr. Hutchings and Mrs. Roe. Mr. Hutchings made three of those. Mrs. Roe made two. The remaining six log entries describing telephone activity during the relevant time represent calls that were terminated prematurely or where the identity of the caller or the intended recipient could not be determined.
Before discussing the specific calls, it is important to recognize that none of the entries on the log which describe outgoing calls identifies the number called or for whom the call was intended. That information can be gleaned only, if possible, from the comments posted on the log. Furthermore, none of the entries on the log which describe incoming calls identifies the number from which a call was placed or by whom the call was placed. Again, that information can be gleaned only, if possible, by implication from the comments posted on the log. With these limitations, the individual calls identified by the log are reviewed below.
a. May 11, 2002, at 9:22:45 a.m. — Call # 1
The log lists a call
placed
by Ocwen’s automated calling system on May 11, 2002, at 9:22:45 a.m. The log does not indicate to whom the call was intended or the number called. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Tele Residence, Left Message.... ” Plaintiffs Exhibit 3 at 10.
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According to Mr. Bryant, that entry represents that: (1) the call was made by Ocwen’s automatic system to Mr. Hutch-ings’ home telephone number; (2) the call was either intercepted by Mr. Hutchings’ answering machine or by someone other than Mr. Hutchings; (3) a message was left; (4) and there was no conversation with Mr. Hutchings.
b. May 11, 2002, at 9:23:46 a.m. — Call # 2
The log lists a second call
placed
by Ocwen’s automated calling system on May 11, 2002, this one at 9:23:46 a.m. The log does not indicate to whom the call was intended or the number called. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Free Dial Account....” Plaintiffs Exhibit 3 at 10. According to Mr. Bryant, that entry represents that the automatic system attempted to dial a telephone number, but that the call was interrupted and terminated by a computer problem.
c. May 11, 2002, at 10:19:11 a.m. — Call # 3
The log lists a call
received
by Ocwen’s automated calling system on May 11, 2002,
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at 10:19:11 a.m. The log does not identify who placed the call or from what number it was placed. The statement appearing in connection with the log entry reads, “Da-vox Phone Call In; Note; ASKED BOR TO CALL BACK B/C COMPUTER WAS FROZEN....” Plaintiffs Exhibit 3 at 10. According to Mr. Bryant, that entry represents that Mr. Hutchings (“BOR” being shorthand for borrower) called the number provided by the Ocwen’s collector in the message left for Mr. Hutchings at his home at 9:22:45 a.m. that day. The statement also explains that the collector answering the call could not, because of a problem with her computer, access the information relative to Mr. Hutchings’ account, and therefore asked him to call later.
d. May 11, 2002, at 10:40:15 a.m. — Call # 4
The log lists a second call
received
by Ocwen’s automated calling system on May 11, 2002, this one at 10:40:15 a.m. The statement appearing in connection with the log entry reads:
Davox Phone Call In; Customer Contact — No Commitment; spke with bwr he called in, I advised tad iao 16,804,77 for 22 payments, i advised last payment we rec’d was in the year 00 — he says he has been making monthly payments to the debt court, i explianed all we rec/ his prep, payments. — i advised of demand issued and exp. date, he would like his bankkr attorney to call Monday to get this resolved/ William Roe will be calling, and it is ok to give any info to him. he gave wrk # 625-3122' — says 853-6185 is an old wrk # . mailing address is still correct.
Plaintiffs Exhibit 3 at page 10.
According to Mr. Bryant, that entry represents that Mr. Hutchings called Ocwen and spoke with a collector named “Jennifer Sawot.” Ms. Sawot told Mr. Hutchings that the arrears on his account was $16,804.77. She explained that the amount represented 22 missed payments, and that no mortgage payment had been made since the year 2000. Mr. Hutchings told her that he had been paying his monthly payments into the debtors’ court. She told him that Ocwen received payment for pre-petition payments. Also according to Mr. Bryant’s translation of the log statement, Ms. Sawot advised Mr. Hutchings that:(l) a written demand for payment had been sent; (2) the amount listed in the demand represented the arrears owed; and (3) the arrearage amount would change on June 12, 2002. He told her that he would have Mr. Roe call and resolve the matter,
e. May 11, 2002, at 10:40:37 a.m. — Call # 5
The log suggests a third call
received
by Ocwen’s automated calling system on May 11, 2002, this one at 10:40:37 a.m. The statement appearing in connection with the log entry reads, “Davox Phone Call In; Certified 3rd Party per Oust; William Roe. Bankr.Attorney .... ” Plaintiffs Exhibit 3 at 10. According to Mr. Bryant, that entry was made by Ms. Sawot, the same person who had just spoken with Mr. Hutchings. In addition, according to Mr. Bryant, the statement represents that the call was made by Mr. Roe who ostensibly called to discuss Mr. Hutchings’ account.
Mr. Bryant’s interpretation of that entry is improbable. If Ms. Sawot handled both the 10:40:15 call and the 10:40:37 call, only 22 seconds elapsed between the time the first call began and the beginning of the second call. The detailed note Ms. Sawot posted about her conversation with Mr. Hutchings indicates clearly that she could not have completed that call in 22 seconds. Therefore, she could not have completed that call and typed a detailed description of it, in shorthand or otherwise, in 22 seconds. In addition, despite having posted a very detailed description of her con
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versation with Mr. Hutchings, Ms. Sawot did not post any description of the conversation that Mr. Bryant thinks she had with Mr. Roe. Consequently, the Court must conclude, contrary to Mr. Bryant’s testimony, that 10:40:37 post simply reflects Ms. Sawot’s entry of additional information pertinent to the 10:40:15 conversation she had with Mr. Hutchings. The 10:40:37 entry does not therefore indicate Mr. Roe made a call to Ocwen or that Ms. Sawot and Mr. Roe had a conservation on that occasion.
f. May 15, 2002, at 10:03:03 a.m. — Call # 6
The log lists a call
placed
by Ocwen’s automated calling system on May 15, 2002, at 10:03:03 a.m. The log does not indicate to whom the call was placed or to what number it was placed. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Tele Business, No Message; on hold for a long while....” Plaintiffs Exhibit 3 at 10.
Using Mr. Bryant’s methods, the statement represents that the call was: (1) made to Mr. Hutchings’ workplace; (2) the call was answered by someone other than Mr. Hutchings; (3) the person answering the call placed the collector on hold; and (4) after being on hold for awhile, the collector disconnected the call without talking to Mr. Hutchings.
g. May 15, 2002, at 5:08:12 p.m. — Call # 7
The log lists a second call
placed
by Ocwen’s automated calling system on May 15, 2002, this one at 5:08:12 p.m. The log does not indicate to whom the call was placed to or what number was called. The statement appearing in connection with the log entry reads: “Davox Phone Call Out; Tele Business, Left Message; LADY .... ” Plaintiffs Exhibit 3 at 10.
Again, using Mr. Bryant’s methods, the statement represents that: (1) the automatic system called Mr. Hutchings’ workplace; (2) the call was answered by an unidentified lady; and (3) the collector left an unspecified message for Mr. Hutchings with that lady and discontinued the call without talking to Mr. Hutchings.
h. May 16, 2002, at 8:48:32 a.m. — Call # 8
The log lists a call
received
by Ocwen’s automated calling system on May 16, 2002, at 8:48:32 a.m. The statement appearing in connection with the log entry reads:
Davox Phone Call In; Customer Contact — No Commitmant; bwr calle din, I advised of the totra iao 16,804,77 and he sttd that he should nto be due for 22 omts and i advised well he was in b/k and when he came out this is what he is showing due for bwr sttd that he is going down to the court house and find out where all his money went and call back ....
Plaintiffs Exhibit 3 at 10.
According to Mr. Bryant, that entry reflects Mr. Hutchings called Ocwen and spoke with a collector. The statement indicates that the collector told Mr. Hutch-ings that the arrears in his account was $16,804.77, and that Mr. Hutchings was 22 payments behind. Mr. Hutchings disagreed and indicated that he would try to determine why funds he paid through his Chapter 13 case-did not satisfy his mortgage debt. Apparently, Mr. Hutchings incorrectly believed that his Chapter 13 payments were funding his current mortgage payments.
i. May 16, 2002, at 10:25:51 a.m. — Call # 9
The log lists a call
placed
by Ocwen’s automated calling system on May 16, 2002, at 10:25:51 a.m. The log does not indicate to whom the call was placed or what number was called. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Note; bwr al
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ready called this morning .... ” Plaintiffs Exhibit 3 at 10. According to Mr. Bryant, that entry represents that the automatic system dialed a telephone number, but that the attempted call was interrupted and terminated before the call was answered.
j. May 22, 2002, at 10:09:27 a.m. — Call # 10
The log lists a call
placed
by Ocwen’s automated calling system on May 22, 2002, at 10:09:27 a.m. The log does not indicate to whom the call was placed or what number was called. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Customer Contact — No Commitment; brrw sttd that we need to spaeak to the attorney william roe .. Gave number 205-625-3208.... ” Plaintiffs Exhibit 3 at 9. According to Mr. Bryant, that entry represents that: (1) Ocwen’s automatic system dialed Mr. Hutchings’ telephone number; (2) and Mr. Hutchings answered the call and had a conversation with a collector; (3) Mr. Hutchings gave the collector Mr. Roe’s telephone number and told the collector to call Mr. Roe; and (4) and that the call was then terminated.
k. May 24, 2002, at 1:46:41 p.m. — Call
#
11
The log lists a call for May 24, 2002, at 1:46:41 p.m. and identifies the call as, “Da-vox Phone Call Out.” That phrase suggests that a call was
placed
by Ocwen’s automated calling system. In contrast, the statement appearing in connection with the log entry indicates that the call was
incoming,
not
outgoing.
The statement reads:
Davox Phone Call Out; Note; DORIS ROE attorney for mr. hutchings called in wanting to know why we were calling bw .. I adv her that there was a Relief frm BK grnated 4/26 she adv that motion was for the bw to refinance hm and not for u to cntct him to collect the debt .. I adv her that pmnt were not being md .. She adv that the pmnt are being md by trustee .. David rogers ... 205 323 4631 .....I adv her that we would research issue and call her bk .. Her # 205-625-3208 .. She adv us not to have any cntct with her client .. I adv that we will not until issue is resolved
Plaintiffs Exhibit 3 at 9.
Mr. Bryant was not asked to comment on this entry. Indeed, it is self-explanatory. As Mrs. Roe testified, she called Ocwen for Mr. Hutchings. Mr. Garfield “Head!_,” a collector, answered the call.
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Mrs. Roe asked Mr. “Head!_” why Ocwen was calling Mr. Hutchings. Mr. Head!_told her that Ocwen believed that relief from the stay was granted on April 26, 2002. Mrs. Roe told Mr. “Head!_” that Ocwen was mistaken as the April 26, 2002, order granted Mr. Hutchings the right to refinance his home mortgage and did not grant Ocwen relief from the stay. Mrs. Roe demanded that Ocwen stop calling Mr. Hutchings. Mr. “Head!_” said that Ocwen would research the issue and, in the meantime, would not attempt to contact Mr. Hutch-ings. Unlike Mrs. Roe’s testimony, however, the comments do not reflect that she told Mr. “Head!_” that she would send a copy of the April 26 order by facsimile or that she was provided a telephone number to do so.
1.May 24, 2002, at 1:51:25 p.m. — Call # 12
The log reflects, in agreement with Mrs. Roe’s testimony, that Mrs. Roe called Ocwen again at 1:51:25 p.m. on May 24,
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2002, shortly after she completed her conversation with Mr. “Head!__” According to the log, her second call was answered by Mr. Richard Irvine. The statement appearing in connection with the log entry reads:
Phone Call In; Phone Call In; Note; Doris w/ bwr’s attorney wanted to know why we are still cll’g the bwr while he is in b/k, adv her of the note on 05/06 which stt relief was granted, she stt the motion for the relief was only so the bwr eld refi, adv her to fax a copy of the form to our b/k dept., she asked if we wld stop cll’g the bwr now, adv her not until we get the form and ck it out.
Plaintiffs Exhibit 3 at 9.
Again, Mr. Bryant was not asked to comment. But again, this entry is self-explanatory. As Mrs. Roe testified, she called Ocwen immediately after her conversation with Mr. “Head!__” Mr. Richard Irvine, a collector, answered the call.
17
Mrs. Roe asked Mr. Irvine why Ocwen was calling Mr. Hutchings. Mr. Irvine told her that Ocwen believed that it was granted relief from the stay on April 26, 2002. Mrs. Roe told Mr. Irvine that Ocwen was mistaken and she explained the purpose of the April 26, 2002, order. Mr. Irvine asked her to send a copy of the order by facsimile to Ocwen’s bankruptcy department. Mrs. Roe also demanded that Ocwen stop calling Mr. Hutchings. Mr. Irvine told her that Ocwen would not stop calling Mr. Hutchings until it received the order and researched the matter,
m. May 24, 2002, at 1:55:33 p.m. — Call # 13
The log lists a third call
received
by Ocwen’s automated calling system on May 24, 2002, this one at 1:55:33 p.m. Mr. Bryant was not asked to interpret the statement accompanying that entry.
The log entry does not identify the caller and does not list the number from which the call was made. A statement accompanies the call, but offers little information. It reads, “Phone Call In; Phone Call In; Transferred Call; to 60 plus .... ” Plaintiffs Exhibit 3 at 9. Mr. Hutchings did not testify that he personally called Ocwen on May 24, 2002. And the two phone calls Mrs. Roe made to Ocwen are listed on the log at 1:46:41 p.m. and at 1:51:25 p.m. Based on these facts, the Court may reasonably conclude that the called listed for May 24, 2002, at 1:55:33 p.m. was not made to Mr. Hutchings.
n. May 28, 2002, at 10:10:01 a.m. — Call # 14
The log lists a call
placed
by Ocwen’s automated calling system on May 28, 2002, at 10:10:01 a.m. The log does not identify to whom it was made or the number called. The statement appearing in connection with the log entry reads:
Davox Phone Call Out; Customer Contact — No Commitment; tb .. tt mr he sed that he does not know why we are still calling him ... advsd him that we do not hav the info for the BK .... he sed that his attrny faxed it to Moss ... advsd him that I do not show anything on it ... he will hav his attrny cb later tdy ....
Plaintiffs Exhibit 3 at 9.
The May 28, 2002, entry is self-explanatory. Ocwen’s automated calling system dialed Mr. Hutchings’ telephone number. Mr. Hutchings answered the call. He told the collector handling the call that he did not understand why Ocwen was still calling him. He also told the collector that Mrs.
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Roe sent the information relating to his bankruptcy. The collector told Mr. Hutch-ings that Ocwen’s records did not reflect that Mrs. Roe had sent a facsimile. Mr. Hutchings told the collector he would have his attorney call Ocwen that day, and the call was terminated.
o. May 31, 2002, at 11:41:31 a.m. — Call # 15
The log lists a call
placed
by Ocwen’s automated calling system on May 31, 2002, at 11:41:31 a.m. The log does not indicate to whom the call was made or to what number. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Tele Business, No Message; was put on hid but Mrs didn’t rtrnm.” Plaintiffs Exhibit 3 at 9.
According to Mr. Bryant, this entry reflects that the automatic system dialed Mr. Bryant’s telephone number, ostensibly at work. The information in the statement indicates: (1) the call was placed to Mr. Hutchings’ workplace; (2) the call was answered by someone other than Mr. Hutch-ings; (3) the person answering the telephone placed the caller on hold; (4) after being on hold for awhile, the collector terminated the call without talking to Mr. Hutchings.
p. May 31, 2002, at 4:39:31 p.m. — Call # 16
The log lists a second call
placed
by Ocwen’s automated calling system on May 31, 2002, this one at 4:39:31 p.m. The log does not identify to whom the call was made or what number was caller. The statement appearing in connection with the log entry reads, “Davox Phone Call Out; Tele Business, No Message....” Plaintiffs Exhibit 3 at 9.
According to Mr. Bryant, this entry reflects that the automatic system dialed Mr. Bryant’s telephone number, again ostensibly at work. The information in the statement indicates: (1) the call was placed to Mr. Hutchings’ workplace; and (2) the call was discontinued without the collector talking to Mr. Hutchings or leaving a message.
q.June 5, 2002, at 2:42:52 p.m. — Call # 17
The log lists an
outgoing
call made by one of Ocwen’s employees on June 5, 2002, at 2:42:52 p.m. The log does not identify to whom the eall was made or what number was called. The statement appearing in connection with the log entry reads:
LRC Received Payoff Quote Request:
(1) Good Through Date: _6/28_
(2) Requester’s Name: _ Brice Hutchings_
(3) Requester’s Telephone#:
(4) Delivery method and address: _ please mail prop address
(5) Customer Advised Advised of fees & turnaround
Time: _
Details: Phone Call Out; Phone Call Out; Payoff Rqst Reed — LRC
Plaintiffs Exhibit 3 at 9.
It appears that this call was made manually by Ms. “McPb_,” and was not initiated by Ocwen’s automatic system. There is nothing in the entry indicating that this call was made to Mr. Hutchings. And Mr. Bryant could not determine from the entry whether the call was made to Mr. Hutch-ings. Similarly, Mr. Hutchings does not contend that he received a telephone call from Ocwen on this date at this time. Based on these facts, the Court concludes that the called listed for June 5, 2002, was not made to Mr. Hutchings.
In addition, even if this call were made to Mr. Hutchings, it appears that the subject of the call was information Mr. Hutch-ings needed and wanted. That information was a “payoff” amount for his loan.
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The call apparently did not involve the collection of the arrears on the loan,
r.June 11, 2002, at 2:28:20 p.m. — Call # 18
The log lists another
outgoing
call made by Ms. “McPh__” This one was made on June 11, 2002, at 2:28:20 p.m. The log does not identify to whom the call was placed or to what number. The statement appearing in connection with the log entry reads, “Phone Call Out; Phone Call Out; Customer Contact; mailed p/o .... ” Plaintiffs Exhibit 3 at 3.
Again, the call appears to have been dialed manually by Ms. “McPh_” and was not initiated by Ocwen’s automatic system. The phrase “Customer Contact” suggests the call may have been made to Mr. Hutchings; however, Mr. Bryant denied that the inclusion of that language means that the call was made to Mr. Hutchings. He explained Ms. “McPh_” did not manually type that phrase in the comment section. It was, instead, he explained, posted automatically by the computer system, as were the phrases, “Phone Call Out; Phone Call Out ....” He said that the only words that Ms. “McPh_” could have manually typed in the comment were “mailed p/o.” Mr. Bryant could not, therefore, say from the language contained in that entry if the call was made to Mr. Hutchings.
On the other hand, Mr. Hutchings testified that he received a telephone call from Ocwen, specifically from someone named “Jennifer,” on June 12, 2002. He does not, however, contend that he received a telephone call from Ocwen on June 11, 2002. He may, of course be slightly mistaken and he may have received a call about the time he thinks he did from a female caller at Ocwen. Certainly, the inclusion of the words, “Customer Contact,” would attest to the validity of that possibility. It could, therefore, be concluded, despite Mr. Bryant’s explanation to the contrary, that the June 11, 2002, call, which is described in the log, was made to Mr. Hutchings. However, it is not plain from the log annotation that the call and conversation, if any, had anything to do with the collection of Ocwen’s debt. In fact, the inclusion of the words “mailed p/o” would, to the contrary, suggest that the call and conversation, if any, had to do with Mr. Hutchings pay off request, which, of course would not constitute a violation of the stay.
s.June 20, 2002, at 3:47:00 p.m. — Call # 19
The log lists another
outgoing
call made by Ms. “McPh___.” This one was made on June 20, 2002, at 3:47:00 p.m. This is the last telephone call, whether incoming or outgoing, described on the log. Like many others, the log does not indicate to whom the call was made or the number called.
The statement appearing in connection with the log entry reads, “Phone Call Out; Phone Call Out; Customer Contact; Foreclosure Sale Ltr Rqst LCR.... ” Plaintiffs Exhibit 3 at 3. It appears that the call was dialed manually by Ms. “McPh_” and was not initiated by Ocwen’s automatic system. But nothing in the entry indicates that the call was made to Mr. Hutch-ings. And Mr. Bryant could not say whether it was made to Mr. Hutchings. And Mr. Hutchings does not contend that he received a telephone call from Ocwen after June 12, 2002. Based on these facts, the Court may reasonably conclude that the called listed for June 20, 2002, was not made to Mr. Hutchings,
t.Telephone Calls before May 26, 2002
In his testimony, Mr. Hutchings specifically recounted two calls he received from Ocwen before May 22, 2002, when he started making written notes about the calls as suggested by his attorney. One call was made to his home on a Saturday he was working. The caller left a message with his wife. He returned the call at the
*879
number left and spoke with someone named “Jennifer.” Mr. Hutchings’ recollection agrees with the telephone activity described in Ocwen’s log for the date May 11, 2005. The log reflects that a call was placed by Ocwen’s automatic calling system to Mr. Hutchings’ residence on that date, the collector left a message, and Mr. Hutchings returned the call and spoke with a collector named “Jennifer.”
The second call Mr. Hutchings’ described receiving before he started making notes was one made on May 26, 2002, where he talked to a collector named “Anthony.” Mr. Hutchings could not remember exactly when he received that second call, but as described above, the log shows that Mr. Hutchings spoke with Ocwen’s collectors on three occasions before May 26, 2002. None of the collectors on those occasions was named “Anthony.” The log reflects that Mr. Hutchings did speak with a collector named “Anthony” on May 28, 2002. But that, of course, was after the day that Mr. Hutchings said he started making written notes of the calls he received from Ocwen.
Based on the above, one of three scenarios is possible. The first most probable is that Mr. Hutchings is correct that he received a call from and spoke with an Ocwen collector béfore May 26, 2002 (in addition to the call that he received from Jennifer and his conversation with her), but is mistaken about the name of the person with whom he had a conversation.
The second most probable is that Mr. Hutchings is correct about the fact that he received a call from and spoke with an Ocwen collector named “Anthony,” but is mistaken about when the call occurred.
The third possibility is that Mr. Hutch-ings’ received a call from “Anthony” which was not recorded in Ocwen’s log. Given the fact that Ocwen’s log reflects that Mr. Hutchings had three conversations with collectors before May 26, 2002, even though he remembers two, this third possibility is not probable.
u. Summary Comments about the Telephone Calls
In summary, it appears from Ocwen’s log that eight calls were placed to Mr. Hutchings from May 11, 2002, through June 11, 2002. Those calls resulted in five conversations between Ocwen collectors and Mr. Hutchings, either where Mr. Hutchings answered the telephone or where Mr. Hutchings returned the call. In addition, Mrs. Roe had two conversations with Ocwen collectors on behalf of Mr. Hutchings.
VII. Applicable Law
Section 362(a)(6) of the Bankruptcy Code provides that the filing of a bankruptcy petition operates automatically as a stay of “any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case under this title....” 11 U.S.C. § 362 (a)(6). Under subsection (c)(2) of section 362, the stay provided for under subsection (a)(6) continues until the case is closed, or the time the case is dismissed, or a discharge is granted or denied to the debtor, whichever occurs first. 11 U.S.C. § 362 (c)(2).
Section 362(h) provides, “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362 (h). For damages to be awarded to an individual under that section, the individual
must prove an injury caused by the stay violation and that the violation of the stay was willful.
A violation of the automatic stay is a “willful violation” if, “the violator (1) knew of the automatic stay and (2) intentionally committed the violative act, regardless whether the violator specifically intended to violate the stay.”
Jove Eng’g, Inc. v.
*880
Internal Revenue Serv.,
92 F.3d 1539, 1555 (11th Cir.1996).
Section 362(h) allows an award of punitive damages for stay violations only in “appropriate circumstances.” “Appropriate circumstances” has been interpreted to require that the violator’s acts be egregious, vindictive, malicious, or accompanied by bad faith. “[E]gregious, intentional misconduct on the violator’s part is necessary to support a punitive damages award.”
United States v. Ketelsen (In re Ketelsen),
880 F.2d 990 , 993 (8th Cir.1989). “An additional finding of maliciousness or bad faith on the part of the offending creditor warrants the further imposition of punitive damages pursuant to 11 U.S.C. § 362 (h).”
Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.),
902 F.2d 1098, 1105 (2nd Cir.1990). “[0]nly egregious or vindictive misconduct warrants punitive damages for willful violations of the automatic stay of 11 U.S.C. § 362 .”
Davis v. Internal Revenue Serv.,
136 B.R. 414, 424 (E.D.Va.1992).
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VIII. Conclusions of Law
It is absolutely clear that Ocwen’s intrusion on Mr. Hutchings was unnecessary. And anyone subjected to those actions, would, like Mr. Hutchings, be aggravated. Who would not be upset by threatening letters and threatening telephone calls? Who would not react like Mr. Hutchings? But how should this Court respond? This Court speculates that most courts’ initial responses would be similar to this Court’s, that is, a creditor who violates the automatic stay should be punished. That response, this Court again speculates, is based on a bankruptcy court’s instinct to protect the automatic stay. But is it the correct response? Would it satisfy a bankruptcy court’s legal responsibility? The remainder of this opinion explains why this Court believes it would not.
A. The Extent of the Stay Violations
1. The Telephone Calls
According to Mr. Hutchings’ testimony, he received ten prohibited telephone calls from Ocwen during the period between May 2002 and June 2002. Those calls include two calls
from Ocwen made
before May 26, 2002, and eight calls from May 26, 2002, through June 12, 2002. Those eight calls include one on May 26, 2002; one on May 27, 2002; two on May 28, 2002; one on June 1, 2002; one on June 2, 2002; one on June 3, 2002, and one on June 12, 2002.
19
And as discussed above, five of the ten calls Mr. Hutchings contends he received, resulted in conversations between Ocwen’s representatives and him.
Ocwen’s transactions log and Mr. Hutch-ings’ testimony do not agree. The log reflects that no calls were placed to Mr. Hutchings on either May 26, 2002, May 27, 2002, June 1, 2002, June 2, 2002, June 3, 2002, or June 12, 2002. It also indicates that only one call was placed to him on May 28, 2002. According to Oewen’s log, as discussed above, eight calls were placed to Mr. Hutchings from May 11, 2002, through June 11, 2002. Five of those calls resulted in conversations between Mr. Hutchings and Ocwen’s collectors and Mr. Hutchings. Those five calls occurred either because Mr. Hutchings answered the telephone when the call was made or
*881
where he returned a call after a message was left.
In regard to the telephone calls, while the Court cannot reconcile the differences in the evidence established by Mr. Hutch-ings’ testimony and Ocwen’s log, exact reconciliation is not necessary. Each body of evidence suggests the same conclusion. That conclusion is: Ocwen placed eight to ten prohibited calls to Mr. Hutchings and five of those calls resulted in conversations between Ocwen representatives and Mr. Hutchings. Therefore any differences in the specific evidence is of no consequence.
2. The Correspondence
In addition to the telephone calls, the evidence establishes that Mr. Hutchings received five items of correspondence relating to the collection of his mortgage deficiency from Ocwen or its attorneys between May 10, 2002, and June 21, 2002. The first, dated May 10, 2002, purports to have been initiated and authored by the law firm of “Moss, Codilis,
et al”
The second item of correspondence, dated May 22, 2002, contained no demand, but instead offered Ocwen’s assistance in helping Mr. Hutchings resolve his deficiency and informed him that there were several alternatives available to him for that purpose. The third item of correspondence, dated June 4, 2002, also purports to have been authored by the law firm of “Moss, Codilis,
et al.
” The fourth item of correspondence, dated June 18, 2002, was authored by and sent to Mr. Hutchings by Ocwen’s outside counsel, “Pierce, Ledyard,
et al.”
The fifth item of correspondence, dated June 21, 2002, also purports to have been authored by the law firm of “Moss, Codilis,
et al.”
3. Conclusions of the Extent of the Stay Violations
Based on the evidence, the Court concludes; (1) Ocwen placed eight to ten telephone calls to Mr. Hutchings relating to the collection of his mortgage debt; (2) as a result of those calls Ocwen representatives had five conversations with Mr. Hutchings relating to the collection of his mortgage debt; and (3) Ocwen sent five items of correspondence to Mr. Hutchings relating to the collection of his mortgage debt. Ocwen admits as much, and this Court concludes, that those ten or so contacts constituted violations of the automatic stay.
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B. Damages
The plain language of section 362(h) of the Bankruptcy Code explicitly requires,
as a prerequisite to maintaining such an action, that a debtor must have first been “injured,” by the stay violation.
The section reads, “An individual injured by any willful violation of a stay provided by this section shall recover.... ” 11 U.S.C. § 362 (h). The section also explicitly requires, as a prerequisite to such an action, that the creditors’ actions caused the debtor to suffer damages which are “actual,” that is damages that the debtor in fact incurred.
In this case, neither of section 362(h)’s prerequisites were satisfied, at least prior to the time that Mr. Hutchings filed this adversary proceeding. Ocwen’s stay violation did not result in any direct harm to Mr. Hutchings and did not directly cause him to suffer any damages, injuries, or loss.
All
of his alleged “damages” flowed strictly and directly from his own actions and efforts involved in prosecuting the present adversary proceeding.
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1. Compensatory Damages — Mr. Hutchings is Not Entitled to Compensatory Damages in the form of “actual damages, including attorneys’ fees and costs.... ”
a. Mr. Hutchings May Not Recover Compensatory Damages, Expenses, or Attorneys Fees Because He Was Not Injured by Ocwen’s Stay Violations
By its plain language, the “actual damages, including costs and attorneys’ fees...” available to a debtor through section 362(h) of the Bankruptcy Code, are restricted to “[a]n individual
injured
by any willful violation of a stay....” 11 U.S.C. § 362 (h) (emphasis added). Consequently, by its terms section 362(h) does not authorize an award of “actual damages, including costs and attorneys’ fees...” to an individual
ivho has not been injured
by a willful violation of the stay. 11 U.S.C. § 362 (h).
Given this limited scope of section 362(h), the practical question before the Court is: Was Mr. Hutchings injured by Ocwen’s actions?
There are two common situations where a debtor might file a complaint under section 362(h). In one, a debtor may be suffering from an ongoing stay violation or there may be a specific event that must be stopped, such as an impending foreclosure. In another, while there is no immediate concern, a debtor may have suffered damages because of a stay violation for which a debtor would like to recover. Either situation is a sufficient justification for filing a section 362(h) complaint. Unfortunately for Mr. Hutchings, neither exists here.
(1) Was Mr. Hutchings Under Any Immediate Threat?
In regard to any immediacy for relief, Mr. Hutchings testified that his last telephone call from Ocwen was
June 12, 2002.
Mrs. Roe testified that after Mr. Hutch-ings gave her the letter and foreclosure notice he received from Ocwen dated
June 18, 2002,
she immediately called Mr. Led-yard, one of Ocwen’s attorneys, by telephone. While she did not speak to him then, he returned her call within the hour and told her that the foreclosure was improper and would be discontinued. He followed their telephone conversation with a letter to Mr. Roe dated
June 21, 2002.
Plaintiffs Exhibit 24. The June 21, 2002, sent by facsimile to Mrs. Roe on
June 24, 2002,
assured Mr. Hutchings that the foreclosure would be stopped immediately.
Id.
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Mr. Hutchings file the pending adversary proceeding on
June 25, 2002,
at least 13 days after his last telephone contact with Ocwen, at least four days after Mrs. Roe received oral confirmation from Mr. Ledyard that the foreclosure action would be stopped immediately, and at least one day after Mrs. Roe received written confirmation from Mr. Ledyard that the foreclosure action would be stopped immediately.
Ocwen’s account history log supports these conclusions. Entries in the log dated June 21, 2002, read:
BANKRUPTCY STATUS COMMENTS; BK MODULE CLOSED IN ERROR. ORDER GRANTED ON 4-26-02 WAS IN REFERENCE TO A MOTION FILED ON 4-1-02 BY THE DEBTOR TO REFINANCE HIS HOME. NEW BK MODULE
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OPENED. POSTPET DUE FOR 1-1-01.
F/C ON HOLD FOR BANKRUPTCY-ATTORNEY NOTIFIED; E-mailed Atty Pierce to put FC back on hold due to BK error, relief was not granted the order was for debtor to refinance his house per reale [sic].
Foreclosure has been interrupted, bankruptcy case filed Details:
Plaintiffs Exhibit 3 at 2.
The preponderance of the evidence, and for that matter, the only evidence on the issue, proves: (1) Ocwen discontinued its efforts to telephone Mr. Hutchings no later than June 12, 2002, and did not contact him by telephone after that date; (2) Ocwen discontinued its efforts to contact Mr. Hutchings as of June 21, 2002, and did not contact him in writing after that date; and (3) Ocwen discontinued its foreclosure proceedings on June 21, 2002, and clearly communicated that fact to Mr. Hutchings’ attorney.
Based on the above evidence, and in the absence of any evidence to the contrary, the Court cannot find that it was necessary for Mr. Hutchings to file the present adversary proceeding in order to compel Ocwen to abide by the stay and to stop calling him or writing him. It was not necessary for Mr. Hutchings to file this adversary proceeding to stop Ocwen from violating the stay. Ocwen stopped violating the stay several days prior to the filing. Consequently, there was no immediate reason to file the pending litigation. All intrusion on Mr. Hutchings had stopped.
His
attorney’s office confirmed that fact.
(2) Did Mr. Hutchings Suffer any Direct Injury from Ocwen’s Actions?
The Court’s conclusion is similar in regard to any damages Mr. Hutchings suffered because of Ocwen’s stay violations. First, there is no evidence that Mr. Hutch-ings was injured, or otherwise suffered any actual damages, as a result of the telephone calls and letters he received from Ocwen. Second, and in contrast, there is ample evidence that all of the evidence Mr. Hutchings did provide in regards to damages, is evidence of damages that: (1) occurred after he filed the pending adversary proceeding; (2) were incurred solely through the prosecution of the pending adversary proceeding; and (3) were incurred exclusively because of his participation in and prosecution of the pending adversary proceeding.
As discussed above in detail in the section reviewing Mr. Hutchings’ testimony, Mr. Hutchings testified that the only actual damages he suffered as a result of Ocwen’s stay violations are the wages that he lost when he had to miss work in order to travel to and from the bankruptcy court and Mr. Toffel’s office, and the gasoline that he was required to purchase in order to make those trips. None were caused by Ocwen’s stay violations.
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(a) Lost Wages and Gasoline Expenses
Specifically, Mr. Hutchings claims that he lost $800 in wages and commissions because he missed about 40 hours of work. He testified that he spent that time, “running around in this courthouse or something like that,” transcript at 183, or, “Running around to different places— courts....”
Id.
*884
Mr. Hutchings did not specify what “courts” he was referring to, although it is apparent he was talking about this Court. He testified, “I have been down here several times.” Transcript at 184. He estimated that he came to the bankruptcy court five or six times. But he added, that each time he came, “they put the case off.”
Id.
He testified that he had to go to Mr. Toffel’s office twice. Those visits would of course be after the pending complaint was filed as Mr. Toffel’s firm filed its notice of appearance in this case on February 24, 2003. Proceeding No. 12.
Mr. Hutchings also testified that he did not lose any time from work as a result of the trips that he made to Mr. Roe’s office. He testified:
Q. Okay. So if you got a letter when you would go home, as you testified, and it was from Ocwen, you would go run to Mr. Roe’s office; correct?
A. Well, I was right there at Mr. Roe’s office.
Q. But the week’s worth of work that you lost wasn’t in one week, though, was it?
A. It was running around in this courthouse or something like that.
Q. All right. So one week included time at Mr. Roe’s office, correct?
A. No, it didn’t have anything — I can pass by Mr. Roe’s office going home.
Transcript, page 183 (emphasis added).
Consequently, the Court must conclude that none of the wages Mr. Hutchings lost because of time he spent away from work can be attributed to Ocwen’s stay violations. The only evidence on this point is his testimony that the time he lost from work was caused by “running around” after he filed his case and that he did not lose anytime with any visits with his attorney Mr. Roe before he filed the complaint.
Mr. Hutchings also seeks reimbursement for $50 for gasoline used to travel back and forth in his automobile to Mr. Toffel’s office and the bankruptcy court.
Mr. Hutchings did provide the dates of hearings at the bankruptcy court or the dates he traveled to Mr. Toffel’s office.
No hearings regarding Ocwen’s stay violations were held in either Mr. Hutchings’ bankruptcy or, of course, in this adversary proceeding prior to the date that the complaint was filed. In fact, the last hearing held in Mr. Hutchings’ bankruptcy case prior to the filing of this adversary proceeding was the hearing on his request to refinance his home, which was held on April 22, 2002, before Ocwen’s first stay violation. And the first hearing in this adversary proceeding was not held until August 5, 2002, after Ocwen’s last stay violation. Furthermore, Mr. Toffel was not involved in Mr. Hutchings’ bankruptcy case and did not enter an appearance in this adversary proceeding until February 24, 2003. And, according to his fee application, Mr. Toffel did not perform any work for Mr. Hutchings before February 20, 2003. The conclusion is, therefore, inescapable, that any trips made by Mr. Hutchings prior to June 25, 2002, cannot possibly have been made in connection with, or as a consequence of, Ocwen’s stay violation.
Consequently, any wages which he may have lost, and any gasoline that he may have used, prior to June 25, 2002, are necessarily the result of Mr. Hutchings’ participation in his own Chapter 13 bankruptcy case, and not from anything done or not done by Ocwen. There is simply no evidence that would support any other factual conclusion.
(b) Attorneys Fees
In addition to his request for lost wages and gasoline expenses, Mr. Hutchings has requested reimbursement for attorneys fees. While Mr. Hutchings’ own testimony
*885
was that he was not obligated to pay any such fees, assuming that he is, the evidence is clear that any fees due are fees that came into existence for work performed after the pending complaint was filed. The summary below explains.
Mr. Roe filed the present adversary proceeding for Mr. Hutchings and represented Mr. Hutchings in this proceeding for several months after it was filed. No reimbursement has been requested by Mr. Hutchings for fees paid or owed to Mr. Roe or for the services rendered by Mr. Roe. Unfortunately, Mr. Roe died. After his death, Mr. Hutchings has been represented by three attorneys. Those are Mr. Toffel and Mr. Willis, of the law firm of Andre M. Toffel, P.C., who have filed applications for fees totaling $44,981.99, and Ms. Heather Bellew, who has filed an application for $7,254.00 in fees. None of these three attorneys became involved in the case until after it was filed and had proceeded for several months. The first time entry on Ms. Bellew’s application is dated October 21, 2002. And the first time entry on the Toffel firm’s application is dated March 5, 2003.
It is clear from the above that there is no evidence that Mr. Hutchings suffered any damages, if any at all, until
after
Ocwen stopped violating the stay. That includes any reimbursement for attorney fees that arose from work performed after the complaint was filed.
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This Court must then ask: May a debtor maintain a section 362(h) action where the debtor’s
only
provable “actual damages” are the costs and expenses, including attorneys fees, of participating in that action?
b. What Have Other Courts Said?
Many courts reporting decisions on the issue before this Court have held that where a debtor was not injured by a creditor’s stay violation, the debtor is not entitled, under section 362(h), to recover any of the costs and expenses, including attorneys fees, which were incurred in maintaining the 362(h) action.
24
Those courts include the following.
*886
In
Lovett v.
Honeywell, 930 F.2d 625, 628 (8th Cir.1991), the debtor was a trucking company that transported products for the creditor. A bankruptcy auditor appointed by the bankruptcy court notified the creditor that it owed the trustee of the debtor’s estate $271,151.41 for undercharges. The creditor filed a petition with the Interstate Commerce Commission seeking a declaratory order that the debtor’s claimed undercharges constituted an unreasonable practice in violation of applicable federal statutes. The next day, the trustee filed an adversary proceeding in the bankruptcy court against the creditor seeking to recover the undercharges. The trustee notified the creditor that its commencement of proceedings before the ICC violated the automatic stay and requested that it withdraw that proceeding. The creditor refused. The trustee moved for a temporary restraining order from the bankruptcy court and filed an action to recover damages against the creditor pursuant to section 362(h).
The bankruptcy court held that the creditor’s action before the ICC was barred by the stay and that the creditor violated the stay by initiating that proceeding. The court also awarded a judgment against the creditor for punitive damages in the amount of $5,000.00 and also ordered the reimbursement of the $1,500.00 in attorneys’ fees incurred by the trustee in prosecuting the section 362(h) proceeding. The district court reversed the bankruptcy court’s judgment, holding that the creditor did not violate the stay. The circuit court affirmed the judgment of the district court, although on different grounds. It declined to consider whether the creditor’s actions violated the stay, after concluding that, assuming those actions constituted a willful stay violation, the
*887
trustee failed to prove “appropriate circumstances” of the nature required to support a punitive damages award, and was not entitled to an award of attorneys fees
because the estate was not injured by the creditor’s alleged stay violations,
other than having incurred attorneys fees in prosecuting the 362(h) proceeding.
In affirming the reversal of the bankruptcy award of attorneys fees pursuant to section 362(h), Circuit Judge John R. Gibson wrote for the court:
We are also satisfied that there is insufficient evidence in the record to support an award of actual damages, and therefore, an award of attorneys’ fees is not appropriate. See, e.g.,
Whitt v. Philadelphia Hous. Auth.,
79 B.R. 611, 616 (Bankr.E.D.Pa.1987) (“costs and attorneys’ fees, by the terms of § 362(h) are allowable only to embellish ‘actual damages’ ...”). The proceedings in the bankruptcy court consisted of the trustee’s motion for a temporary restraining order and a finding of contempt. The trustee alleged that unless the bankruptcy court enjoined the ICC proceeding, the trustee would be forced to expend time and resources to defend the administrative proceeding. The evidence of damage before the bankruptcy court consisted of the time expended by trustee’s counsel in bringing this motion. No evidence existed of time actually expended in defending the administrative action. We do not believe that the time expended bringing the motion for a temporary restraining order and contempt sanctions, in the absence of any other damage, is the type of damage contemplated by section 362(h).
Id.
Moreover, any claim of damage to the trustee by Honeywell’s filing the ICC action evaporated when the bankruptcy court later appropriately referred the reasonable rate issue to the ICC for ruling.
930 F.2d at 629 (emphasis added).
In
Phillips v. Smith (In re Ayscue),
No. CIV. A. 3:94CV730, 1995 WL 908383 (E.D.Va., May 4, 1995), the Chapter 7 debtor owned one-third of the shares of stock in a corporation and was its president. His mother, who was the corporation’s secretary, and her daughter, owned the remaining two-thirds of the company in equal parts. The corporation owned equipment which was encumbered. The notes which were secured by the equipment were personally guaranteed by the debtor, his mother, and her daughter. The corporation was indebted to the debt- or’s mother for approximately $200,000 in cash advances she had made to, or for, the corporation.
The corporation became unable to meet its obligations. After the debtor’s bankruptcy filing, and for tax reasons, the three shareholders liquidated the corporation. All the corporation’s assets and liabilities were transferred to the debtor’s mother. In exchange for releases and indemnifications from liability, her daughter and the debtor returned their stock to the corporation.
The trustee in the debtor’s Chapter 7 case filed a complaint against the debtor’s mother seeking the turnover of certain property, the avoidance of liens held by her, the equitable subordination of her claims against the estate, and damages for a purported violation of the automatic stay. The bankruptcy court determined that debts owed by the corporation to the debt- or’s mother were the result of loans and not capital contributions, and that the corporation was, consequently, insolvent at the time of its liquidation and its stock had no value. The court ruled in the debtor’s mother’s favor on all counts. On appeal, the district court remanded the case for
*888
the bankruptcy court to determine whether the defendant had violated the stay. But it affirmed the bankruptcy court’s other rulings.
On remand, the bankruptcy court found that although the defendant had willfully violated the automatic stay by her post-petition receipt of the estate’s shares of the corporation’s stock,
the trustee did not sustain any injury as a result of this transaction
because the stock was worthless. Accordingly, the bankruptcy court declined the trustee’s demand, pursuant to section 362(h), for $56,000.00 in attorney’s fees generated in prosecuting the case against the debtor’s mother, ruling that, as a matter of law, those attorneys fees, “did not constitute an ‘injury’ as contemplated under that section.” 1995 WL 908383 at *2.
On appeal, the district court affirmed the bankruptcy court’s decision on the stay violation issue for the reasons cited by the bankruptcy court. The district court recognized that the estate had not been injured by the stay violation and therefore was not entitled to actual damages of any sort, including the fees and costs required to prosecute the section 362(h) proceeding.
The court succinctly explained its ruling as follows:
Appellant claims that the appellee, Smith, attempted to conceal her actions and hinder the appellant’s efforts to uncover and pursue this matter. As a result, such actions “resulted in great expense and delay to the detriment of unsecured creditors.” Appellant is claiming approximately $56,000 in damages, which constitutes attorney’s fees and costs, for seeking the turnover of an asset which the debtor valued at $10,000 on his schedules, and which the bankruptcy court valued at zero following a three-day trial.
The dispositive section relied upon by the trustee provides: “An individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”
11 U.S.C. § 362 (h) (emphasis added). The plain language of this statute mandates a two-prong inquiry:
“[bjefore [recovery of attorneys’ fees and costs under § 362(h)] can be had, however, the Bankruptcy Court must make at least two determinations. First, the Bankruptcy Court must determine that the individual seeking the award was indeed injured by the violation of the automatic stay. Second, the court must determine that the violation was willful.”
In re Bain,
64 B.R. 581, 584 (W.D.Va.1986); see also
In re Smith, No.
93-25553-A, 1994 WL 900507 , at *13 (Bankr.E.D.Va.1994) (“Recovery [of attorney’s fees] for automatic stay violations .[requires] the court [to] decide whether the individual seeking the award has been harmed or injured by the violation of the stay, and if so, whether the violation was willful”).
Resolution of this apparent paradox is unnecessary, as the bankruptcy court clearly found that the appellant had not been “injured” apart from his claim for attorney’s fees and costs. The Court finds no clear error in this finding. Since the Court is not convinced that the appellant’s attorney’s fees and costs, in of themselves, constitute an “injury” under § 362(h), the bankruptcy court’s refusal to apply the mandatory sanctions provided by that section will not be disturbed.
1995 WL 908383 at *2-3 (footnotes omitted)(emphasis added).
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In
H.T. Bowling, Inc. v. Bain (In re Bain),
64 B.R. 581 (W.D.Va.1986), the district comb reversed the bankruptcy courts’ award of attorney’s fees and costs incurred by the debtor in prosecuting an action against a creditor for violation of the stay. The district court based the reversal on the grounds that the debtor was not injured by the stay violation, a prerequisite to recovery of any sort under section 362(h). Judge James C. Turk, then Chief District Judge, explained:
Section 362(h) seems to permit the recovery of attorneys’ fees and costs in certain cases where the automatic stay is violated. Before such recovery can be had, however, the Bankruptcy Court must make at least two determinations. First, the Bankruptcy Court must determine that the individual seeking the award was indeed injured by the violation of the automatic stay. Second, the court must determine that the violation was willful. In the instant case, neither determination was made by the Bankruptcy Court. Accordingly, its award of attorneys’ fees and costs cannot stand.
64 B.R. at 584 (emphasis added).
In
In re Brock Utilities & Grading, Inc.,
185 B.R. 719 (Bankr.E.D.N.C.1995), the IRS mailed a computer-generated notice of intention to levy to the debtor post-petition despite having received ample notice of the debtor’s bankruptcy case. Debtor’s counsel filed a complaint for damages pursuant to section 362(h) without first contacting or attempting to resolve the matter with the IRS. The only “actual damages” claimed by the debtor were the attorneys fees and costs which it incurred in connection with the prosecution of its section 362(h) proceeding. The bankruptcy court denied the debtor’s request on the grounds that the debtor had not been injured by the IRS’s stay violation. Judge Thomas Small stated:
The court need not decide in this case whether the IRS’s violation of the stay was “willful” because under the facts of this case, the debtor suffered no injury. Debtor’s counsel had established contact with Mr. Richardson of the IRS and had received assurances from him that the IRS would not seek to collect its claim in violation of the stay. A simple phone call to Mr. Richardson would have allayed any fears that the debtor might have had, and the motion for sanctions would not have been required. Any costs involved in bringing this motion were unnecessarily incurred and should not be reimbursed by the IRS. In a case in which a computer-generated notice legitimately warrants a debtor incurring attorney fees, such fees may constitute an injury compensable under § 362(h), but this is not such a case. Thus, there was no injured party in this case, and only an “injur

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2019580. Public record. Not legal advice.