Vu v. Lin (In re Vu)
Vu v. Lin (In re Vu)
Opinion of the Court
I. INTRODUCTION
Defendant's conduct in barring Plaintiff from entering Plaintiff's restaurant constituted a willful violation of the automatic stay that caused Plaintiff to suffer actual damages to his property ($7,250) and emotional distress ($2,000), which combined is $9,250. I will also impose on Defendant, as part of Plaintiff's actual damages, a close approximation of Plaintiff's attorney's fees in the amount of $3,500. Defendant's conduct in violating the stay was patently egregious and outrageous, thereby requiring the imposition of punitive damages in the amount of $5,000. The award of punitive damages is intended to punish Defendant and will deter him (hopefully) from such blatant transgressions of the automatic stay in the future. The total amount owed to Plaintiff from Defendant therefore is $17,750 and I will enter judgment in favor of Plaintiff and against Defendant in that amount.
On February 18, 2015, Plaintiff/Debtor, Tam Q. Vu ("Plaintiff"), initiated this adversary proceeding against Defendant/Landlord, Yung Lin ("Defendant"), seeking damages under
II. FACTUAL AND PROCEDURAL BACKGROUND
Sometime in January 2013, Plaintiff purchased the assets of a restaurant business operating at 1930 Columbia Ave., Lancaster, PA (the "Premises"), from Kar Thiem Lee ("Mr. Lee") for $73,000. On January 15, 2013, as part of the acquisition of the restaurant, Plaintiff entered into an Assignment and Assumption of Lease with DFY Realty Management, Inc. ("DFY"), the owner of the Premises. Defendant is the President of DFY.
Beginning almost immediately, in April 2013, Plaintiff had difficulty making timely lease payments to DFY. In February 2014, *601DFY filed a state court eviction action against Plaintiff. The state court entered a judgment of eviction against Plaintiff and in favor of DFY on April 24, 2014. The Sheriff scheduled eviction of Plaintiff from the Premises on May 13, 2014, but Plaintiff stayed the eviction when he filed his bankruptcy petition on that date. Defendant received notice of Plaintiff's bankruptcy filing the next day, May 14, 2014.
After Plaintiff filed his bankruptcy petition, he paid rent to DFY for approximately two months. Thereafter, his payment on the lease became sporadic. Sometime in January 2015, upon the poor health of both Plaintiff and his wife, Plaintiff decided to surrender the Premises to Defendant effective on January 31, 2015. On or about January 28, 2015,
On January 29, 2015, counsel for Plaintiff sent counsel for Defendant a letter advising her that Defendant had violated the automatic stay by locking Plaintiff out of the Premises. The letter stated that Plaintiff desired to remove his personal property from the Premises and have an auctioneer catalogue the property for sale. Plaintiff's counsel requested that Defendant's counsel contact her for Plaintiff to arrange for speedy liquidation of the personal property. As Defendant had done previously, counsel for Defendant acted with insouciance, ignoring the letter, and she did not reply. Plaintiff was provided no opportunity to enter the Premises to catalogue or retrieve his personal property. As a result, Plaintiff filed the complaint now before me seeking actual damages (including attorneys' fees) and punitive damages against Defendant under
III. DISCUSSION
A. Plaintiff incorrectly claimed that the Trustee had abandoned the restaurant assets and other property from the estate before Defendant's actions.
Plaintiff alleged in his brief for the first time that the Chapter 7 Trustee had abandoned all assets to Plaintiff on January 7, 2015.
Plaintiff appeared to rely on (but did not definitively plead) Section 362(a)(3) of the Bankruptcy Code as the basis for the alleged stay violation. If Plaintiff were correct in alleging that the assets had been abandoned from the estate on January 7, 2015, however, no violation of the stay could have occurred. The stay of Section 362(a)(3) applies to, and protects against, acts to obtain possession of, or exercise control over, property of the estate.
On June 20, 2018, I ordered the parties to file supplemental briefs to address the abandonment issue. I also asked Plaintiff to identify the subsection of Section 362(a) on which he relies for his claim of a stay violation. All briefs have been filed and the abandonment issue is ready for disposition.
Plaintiff's supplemental brief now clearly identifies Section 362(a)(3) as the basis for his demands.
Plaintiff's supplemental brief, however, states that Defendant was wrong in taking control over the property because Plaintiff had exempted it in his Schedule C.
The deadline for objections to Plaintiff's exemptions was February 6, 2015, 30 days after the January 7 creditors' meeting. Neither the Chapter 7 Trustee nor any other party objected to Plaintiff's claim of exemptions. All of the property that Plaintiff had claimed as exempt therefore finally became exempt and was no longer property of the estate on February 7, 2015. Before that date, however, the property claimed as exempt remained property of the estate. Because Defendant's conduct occurred before February 7, 2015 in all respects, Plaintiff's request for sanctions for Defendant's violation of the automatic stay remains viable. The restaurant and other personal property at issue in this dispute were property of the estate at all relevant times of Defendant's conduct.
B. Defendant violated the automatic stay when he changed the locks to the Premises, and he further violated the stay when he failed to respond to Plaintiff's request for an opportunity to access the Premises to retrieve and catalogue his property.
The filing of a bankruptcy petition operates as an automatic stay of all collection activities, including "any act to obtain possession of property of the estate or to exercise control over property of the estate."
Section 362(k)(1) of the Bankruptcy Code provides that "an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages."
It is a willful violation of the automatic stay when a creditor violates the stay with knowledge that the bankruptcy petition has been filed. Willfulness does not require that the creditor intend to violate the automatic stay provision, rather it requires that the acts which violate the stay be intentional.... [A] creditor's good faith belief that he is not violating the automatic stay provision is not determinative of willfulness.
Lansdale Family Rests., Inc. v. Weis Food Serv. (In re Lansdale Family Rests., Inc. ),
Defendant received notice of Plaintiff's bankruptcy filing on May 14, 2014. I find and conclude, therefore, that Defendant had actual knowledge of Plaintiff's bankruptcy filing from May 2014 through January 2015. He had actual knowledge when he changed the locks. And he had actual knowledge when he failed to respond to the request of Plaintiff s counsel for access to Plaintiff's property. I find and conclude, therefore, that by changing the locks and failing to respond to counsel's request for access to the restaurant Premises, Defendant acted to obtain possession of and to exercise control over the Premises and Plaintiff's personal property, all of which were property of the estate. When Defendant changed the locks to the Premises and failed to respond to Plaintiff's request for access to the personal property, he knew that Plaintiff was in bankruptcy. His conduct therefore constituted a willful violation of the automatic stay. Lansaw,
Defendant argues that no stay violation occurred because the personal property that remained in the Premises when the lockout occurred belonged to DFY, and not to Plaintiff. Attempting to prove this allegation, Defendant attached to his May 18, 2018 brief a copy of an alleged 2006 lease between DFY and Meifang Lin ("Lin"). I reject this contention out of hand. First, the 2006 lease was neither offered nor admitted into evidence and is not evidence that I may consider. Second, the lease with Lin is not relevant to this case because it is not the lease that Plaintiff assumed when he took possession of the Premises. Plaintiff assumed a lease dated July 3, 2009 between DFY and Mr. Lee.
C. Plaintiff is entitled to $12,750 for actual damages from loss of his property, attorneys' fees, and emotional distress, which loss he sustained as a direct result of Defendant's willful violation of the automatic stay.
When, as here, a debtor establishes a willful violation of the automatic stay, Section 362(k)(1) of the Bankruptcy Code provides that the debtor may recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, punitive damages.
Actual damages under Section 362(k)(1)"must be prove[n] with reasonable certainty, and mere speculation, guess or conjecture will not suffice." In re Nixon,
Plaintiff seeks the following amounts as actual damages he incurred as a result of Defendant's violation of the automatic stay: (1) $21,200, which is the value Plaintiff ascribes to the restaurant equipment and food items that remained in the Premises when Defendant changed the locks;
Plaintiff maintains that various items of restaurant equipment and food items
Defendant testified that the restaurant equipment in the Premises at the time he changed the locks was very old and worth very little, if anything. He also testified that the food remaining in the Premises was old and was not suitable for use.
*605Plaintiff testified that an auctioneer had agreed to purchase the restaurant equipment remaining in the Premises at the time of the lockout for an amount between $13,000 and $16,000. The anticipated purchase was intended to occur on January 31, 2015, but was thwarted by Defendant's lockout. Defendant offered no agreement, bill of sale, letter, or email to establish the terms of the alleged sale. Plaintiff's testimony about the auctioneer might have been suspect, but Defendant's counsel failed to object to any part of it.
Defendant concedes that he has not returned the $8,500 security deposit to Plaintiff. But he maintains that DFY is owed much more than this amount in past due rent and as damages for Plaintiff's breach of the lease.
Plaintiff also requests an award of damages for the emotional distress he suffered as caused by Defendant's violation of the automatic stay. Plaintiff did not quantify the amount of damages to redress the emotional distress he suffered as a component of his actual damages claim. Instead, he relies on his testimony at trial describing his emotional state resulting from the lockout. He requests that I use this evidence to quantify his emotional distress claim. Plaintiff's testimony consisted of the following: At the time of the lockout, Plaintiff and his wife were in poor health and had sole custody of four grandchildren, for whom they were receiving no child support. Plaintiff and his family were living solely on social security income at the time of the lockout and he was a month behind on the mortgage payment for his home. In addition, as a result of the lockout, Plaintiff lost all of his financial records and was forced to recreate them to prepare and file his tax returns. After the lockout, Plaintiff felt lost and very bad because he no longer had a source of income, he was out of money, and he had a family to support.
The Third Circuit has ruled that a debtor may recover emotional distress suffered as a result of a defendant's violation of the automatic stay as an element of actual damages under Section 362(k)(1). Lansaw,
I find and conclude that Plaintiff has credibly and sufficiently established that he suffered some emotional distress at the time of the patently egregious lockout. My findings of financial damage renders corroborating medical evidence unnecessary. What I find lacking in Plaintiff's submission, however, is proof that all of the alleged emotional distress he was suffering was caused by Defendant's violation of the automatic stay. Instead, many of the stresses about which Plaintiff testified resulted from his overall life and financial difficulties: The poor health that he and his wife experienced prior to the lockout; raising four grandchildren on a limited income; and financial problems in his restaurant business prior to the lockout. The latter clearly led to the financial difficulties, including a default on his mortgage, which caused Plaintiff eventually to file his bankruptcy petition. Plaintiff established that he experienced emotional distress that was directly caused by Defendant's stay violation (1) when he lost the opportunity to sell the restaurant equipment at a time he desperately needed money to pay his mortgage and other living expenses and (2) when he lost all of his financial records, which forced him to spend substantial time recreating those records. To compensate Plaintiff for this more limited emotional distress, I award him $2,000 as actual damages.
Finally, Plaintiff requests attorneys' fees as part of his actual damages. Plaintiff's counsel did not precisely quantify the amount of attorneys' fees that might qualify as damages incurred by Plaintiff, other than to state that she is requesting a "reasonable attorneys' fee." Plaintiff's counsel states in her first brief, however, that she is not charging Plaintiff any amount for the time she spent on this adversary proceeding. She states in her brief that she should be compensated in the same amount that Defendant testified he had expended for his counsel to defend against this adversary proceeding.
"The language of Section 362(k)(1) provides for the compensation of 'actual damages.' Attorneys' fees are included in 'actual damages' and are not addressed as a separate category of damages." Dean v. Carr (In re Dean ),
Plaintiff's counsel approached her client's pauperism with nobility and did not charge her impecunious client additional *607thousands of dollars. I will not follow the courts who require that counsel actually bill their clients without regard to their poverty. Our noble profession should look with approval at actions such as counsel's in this case. To the contrary, I follow the sound reasoning of the court in In re Parks, No. 07-18341,
Nor does counsel's agreement to represent the debtor pro bono mean that counsel cannot be awarded attorney's fees under fee-shifting statutes such as11 U.S.C. § 362 (k)(1). See Blanchard v. Bergeron,489 U.S. 87 , 94,109 S.Ct. 939 ,103 L.Ed.2d 67 (1989) (pro bono representation does not bar the award of a reasonable attorneys' fees); Blum v. Stenson,465 U.S. 886 , 895,104 S.Ct. 1541 ,79 L.Ed.2d 891 (1984) (attorneys' fees may not be reduced because the attorney conducted the litigation pro bono).
Id.
Plaintiff's request for an award of attorneys' fees as a component of his actual damages claim is therefore cautiously
D. Plaintiff is entitled to an award of punitive damages in the amount of $5,000.
Section 362(k)(1) authorizes me to award punitive damages to a debtor to redress a stay violation in "appropriate circumstances." Lightfoot v. Borkon (In re Lightfoot ),
A court considering the imposition of punitive damages must be mindful of their purpose. "Punitive damages are damages, other than compensatory or nominal damages, awarded against a *608person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future."
Frankel v. Strayer (In re Frankel ),
The record in this case reflects no evidence regarding factor (2) (Defendant's ability to pay). Similarly, no evidence supports factor (4) (provocation by Plaintiff).
Factor (3) (Defendant's motive), however, is clear on its face - Defendant purposely prevented Plaintiff from getting into the Premises to claim his property (including financial records). Plaintiff's behavior was quite deliberate in withholding Plaintiff's property from him and immediately leasing the Premises to a third party. Defendant's further purposeful refusal to respond to the communication from Plaintiff's counsel adds to Defendant's egregious behavior.
Factor (1) is the nature of Defendant's conduct. I have seen a few purposeful stay violations, but I have seen fewer that are as bold and absolute as Defendant's behavior. The testimony established that Plaintiff had advised Defendant that he intended to surrender the Premises on January 31, 2015. Defendant travelled from New York to Lancaster specifically to seize possession of the Premises immediately, before January 31. When Defendant arrived, the restaurant was not operating. Defendant called a locksmith to gain entry to the restaurant and to change the locks. Four days was all that may have kept Defendant from lawfully moving into the Premises.
Defendant and his counsel also ignored the January 29, 2015 letter, advising that the lockout violated the automatic stay, which letter Plaintiff's counsel had sent immediately to Defendant's counsel. Plaintiff's counsel also requested that the parties reach some agreement regarding the liquidation of Plaintiff's personal property. Again, Defendant ignored and never responded to this letter. No evidence showed any attempt by Defendant to contact either Plaintiff or his counsel. Plaintiff went to the restaurant and knocked, wanting to enter to see Defendant and claim (or at least catalogue) his property. Defendant vaguely testified that either he or his attorney reached out to Plaintiff to return Plaintiff's personal property. I reject this testimony.
Defendant blatantly violated the automatic stay both when he enlisted the self-help measure of changing the locks to the Premises and when he failed to respond to Plaintiff's request for access to his personal property. Lansaw,
IV. CONCLUSION
For the reasons set forth above, I find and conclude that Defendant violated the automatic stay of Section 362(a)(3) of the Bankruptcy Code,
An appropriate Order, based on this Memorandum Opinion, follows.
ORDER
AND NOW, this 7 day of November, 2018, for the reasons set forth in the accompanying Opinion entered in this adversary proceeding of even date herewith,
IT IS HEREBY ORDERED that JUDGMENT ON THE COMPLAINT IS ENTERED IN FAVOR OF PLAINTIFF AND AGAINST DEFENDANT IN THE AMOUNT OF $17,750.
A new issue arose for the first time in Plaintiff's initial post-trial brief and led me to request supplemental briefs, which were also duly filed.
Plaintiff says that Defendant locked him out of the Premises on January 26, 2015; but Defendant says the lockout occurred on January 28, 2015. This discrepancy is unimportant - whether the lockout occurred on January 26 or January 28, 2015, is of no consequence to my decision.
Plaintiff testified that he went to the Premises on the day of the lockout and saw Defendant and several other people inside the Premises. He knocked on the door, but Defendant and the others in the Premises ignored him. He further testified that after the lockout, No Trespassing signs appeared on the Premises and within several weeks, a new restaurant began operating in the Premises.
Plaintiff's brief filed May 17, 2018, at p. 3.
Plaintiff's supplemental brief filed on July 1, 2018 at pp. 1-2.
Plaintiff's supplemental brief at p. 3.
Plaintiff's supplemental brief, at p. 2.
Exhibit P-1-A, admitted into evidence at trial.
Exhibit P-1-C.
Exhibit P-1-C.
The letter that Plaintiff's counsel sent to Defendant's counsel on January 29 concedes that the food remaining in the Premises was likely unusable. Exhibit P-1-D.
The testimony about the auction and auctioneer is therefore admissible but weak.
Both Plaintiff and Defendant have many years of experience operating restaurants. I therefore afford equal weight to their testimony regarding the value of the items listed on Exhibit P-1-C. Plaintiff says the property is worth $21,200 and Defendant says the property is worthless. I believe it is somewhere in between and that $7,250 constitutes the most likely value.
Defendant testified, without contradiction, that Plaintiff owes DFY approximately $13,000 for delinquent rent and utilities.
The Third Circuit also did not decide whether financial injury is a necessary predicate to recovery of emotional distress damages. Like Plaintiff in this case, the debtor in Lansaw had established financial injury as a result of the stay violation, so damages for emotional distress are therefore appropriate in this case. Lansaw,
Plaintiff's first brief at p. 8.
Counsel has put her client's best interests ahead other own. I recognize that the majority standard could lead to counsel preparing an invoice for fees and giving it to the client. Then, with a wink and a nod, counsel might assure the client that it was not to be paid. The invoice could then be proffered to a court as the basis for a request for attorneys' fees. I do not want to contribute to the establishment of incentives for counsel to do just that. I can only hope that the integrity of the profession (if not the risk of severe sanctions) would guide counsel along the appropriate path.
I am also aware that my colleague in the Middle District of Pennsylvania, Honorable Bankruptcy Judge Mary France, considered and then rejected the Parks decision in her Dean v. Carr, supra, decision. This weighed heavily on me because of the high respect I have for Judge France. I must, however, decline to follow her approach in favor of the more appropriate reasoning adopted by the court in Parks.
Defendant's testimony in this respect was shifty and was not credible.
Defendant's testimony in this respect was also shifty and was also not credible.
Reference
- Full Case Name
- IN RE: Tam Q. VU, Debtor Tam Q. Vu v. Young [sic] Lin
- Cited By
- 10 cases
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- Published