Opinion
Case No. 98-10301-SSM, Adversary Proceeding No. 99-1002
March 31, 1999
Michael H. Ditton, Esquire, Alexandria, VA, for Plaintiff pro se
James A. Murphy, Esquire, LeClair Ryan, P.C., Richmond, VA, Counsel for defendant Capital One
Robert L. Deichmeister, Esquire, Fagelson, Schonberger, Payne Deichmeister, Fairfax, VA, Counsel for defendant American Express Centurion Bank
C. Thomas Brown, Esquire, Silver Brown, P.C., Fairfax, VA, Counsel for defendant Crestar Bank
Cindra M. Dowd, Esquire, Glasser and Glasser, PLC, Norfolk, VA, Counsel for defendants Bank of America National Trust and Savings Assn. and Federal Home Loan Mortgage Corporation
Carol T. Stone, Esquire, Jordan Coyne Savits, L.L.P., Fairfax, VA, Counsel for defendant United Creditors Alliance
MEMORANDUM OPINION
This matter is before the court on motions filed by Crestar Bank ("Crestar"), Bank of America National Trust and Savings Association ("Bank of America"), and Federal Home Loan Mortgage Corporation ("Freddie Mac") to dismiss the complaint as to them under Federal Rule of Bankruptcy Procedure 7012. A hearing was held in open court on March 23, 1999, at which the plaintiff was present pro se and the moving defendants were present by counsel. At the conclusion of the hearing, the court took the motions under advisement to review the record and the applicable law. For the reasons stated, the motion will be granted in part and denied in part.
Background A.
Michael H. Ditton ("the debtor") is an attorney. He filed a voluntary petition under chapter 7 of the Bankruptcy Code in this court on January 13, 1998. Among the assets listed on his schedules were a number of pending or concluded lawsuits against various defendants, including Crestar, Bank of America, and Freddie Mac. These causes of action were claimed as exempt and no party objected to the claim of exemption. The debtor was granted a discharge on April 23, 1998. The following day, a notice of need to file proofs of claim was issued by the clerk at the request of the chapter 7 trustee setting a bar date for claims of 90 days from that date, which would have been July 23, 1998. However, the trustee filed a report of no distribution on April 30, 1998, and the case was subsequently closed on May 18, 1998.
Approximately three months later (August 12, 1998), the debtor filed a motion to reopen the bankruptcy case for various purposes, one of which was to bring actions in this court against creditors for violating the automatic stay. The motion was opposed by the United States Trustee, Freddie Mac, Bank of America, Capital One Financial Corporation, and Capital One Services, Inc. In a memorandum opinion and order signed on November 5, 1998, this court granted the motion to reopen, allowing the debtor to amend his schedules to list two assets inadvertently omitted from the previously filed schedules. Relevant to the present motion, this court also ordered: "The debtor may, within 60 days of the entry of this order commence an adversary proceeding against any party whom the debtor in good faith contends violated the automatic stay" (emphasis in original). The last day to file an adversary proceeding, under the terms of the order, was January 4, 1999.
For convenience, the latter two creditors will be referred to collectively as "Capital One."
On January 5, 1999, one day after the deadline, the debtor filed the complaint, in eight counts, that is currently before the court. Named as defendants were Capitol One, Crestar, Bank of America, Freddie Mac, American Express Centurion Bank, United Creditors Alliance, and Capital Credit Corp. The causes of action alleged in the complaint may be briefly summarized as follows:
For reasons that are unclear, the debtor — who as an attorney should have known better — has lumped several unrelated causes of actions into a single complaint. At an appropriate point, depending on which claims survive summary judgment, the court will exercise its authority under Fed.R.Civ.P. 21, as incorporated by F.R.Bankr.P. 7021, to sever the unrelated claims and direct separate trials.
On January 26, 1999, the debtor voluntarily dismissed his cause of action against Capital Credit Corporation (Count IV) with prejudice.
Count I Damages and sanctions against Capital One for violating the automatic stay.
Count II Damages and sanctions against Bank of America and Freddie Mac for violating the automatic stay.
Count III Damages and sanctions against American Express and United Creditors Alliance for violating the automatic stay.
Count IV [voluntarily dismissed].
Count V Vacate and declare void an order dismissing the debtor's state court action against Freddie Mac and Bank of America.
Count VI Vacate and declare void an order dismissing the debtor's state court action against Capital One and Crestar.
Count VI was previously dismissed by this court on March 10, 1999 on Capital One's motion.
Count VII Vacate and declare void an order dismissing the debtor's appeal of an eviction action brought by Freddie Mac.
Count VIII Damages against Crestar for violation of the automatic stay.
Count VIII is mistakenly labeled "Count VTI" in the complaint.
B.
Counts II and V, which relate solely to Bank of America and Freddie Mac, involve the dismissal, postpetition, of a chancery suit that the debtor had brought against them and Mortgage Guaranty Insurance Corporation ("MGIC") in the Circuit Court of Prince William County for recission and cancellation of a trustee's deed in foreclosure and for restitution of sums paid for private mortgage insurance. The essential facts alleged by the debtor in the state court suit were that he and his then-wife, Lorelie Ditton, purchased a home at 4515 Canary Court, Woodbridge, Virginia, on June 3, 1987, with the proceeds of a $95,950 loan from Ameribanc Savings Bank; that the law firm by which he was formerly employed had installed hidden listening and recording devices in the home; that the debtor, in response, stopped making monthly mortgage payments; that Bank of America, which at that point held the note, refused to investigate or provide other relief; that Freddie Mac then caused a foreclosure sale to be held on May 7, 1997, at which Freddie Mac was declared the purchaser; and that a trustee's deed conveying the property to Freddie Mac was recorded on June 18, 1997.
The state court action had been commenced on November 18, 1997. Bank of America and Freddie Mac filed an answer on December 22, 1997, while MGIC filed a demurrer the following day. A hearing was held on January 9, 1998, at which MGIC's demurrer was sustained. An order reflecting the ruling was not entered, however, until February 6, 1998. That order gave the debtor until February 27, 1998, to file an amended bill of complaint. In the interim, Bank of America and Freddie Mac had filed a motion for summary judgment on January 13, 1998. When the debtor did not file an amended bill of complaint, Bank of America and Freddie Mac then filed on March 6, 1998, a motion to dismiss. On March 12, 1998, the debtor filed a suggestion of bankruptcy. On May 4, 1998, the chapter 7 trustee filed a "disclaimer." A copy of the debtor's discharge was filed with the state court on May 8, 1998, and on that same date the state court dismissed the bill of complaint with prejudice. Count II of the complaint in this court alleges that Freddie Mac and Bank of America violated the automatic stay both by making a demand for attorneys fees and costs in their motions to dismiss and by securing dismissal of the debtor's causes of action. Count V asks this court to vacate and set aside the state court orders that resulted in the dismissal of the suit.
C.
Count VII of the complaint relates solely to Freddie Mac and seeks to have this court vacate or set aside an order by the Supreme Court of Virginia dismissing his appeal. After the foreclosure sale, Freddie Mac brought an unlawful detainer action against the debtor in the Prince William County General District Court on August 1, 1997. In that action, the debtor filed a counterclaim for abuse of process. Freddie Mac prevailed in the General District Court, and the debtor then appealed to the Prince William County Circuit Court, which heard the matter de novo on December 16, 1997. The circuit court granted Freddie Mac a writ of possession for the premises on December 19, 1997. The debtor was evicted on January 2, 1998. The debtor took an appeal to the Supreme Court of Virginia. On the present undeveloped state of the record, it is unclear whether the appeal related solely to the debtor's counterclaim or to all aspects of the lower court judgment, but for the purpose of this ruling, the court assumes the latter. In any event, on April 20, 1998, Freddie Mac filed a motion to dismiss the appeal on the ground that it had not been timely filed. The motion was granted, and the appeal was dismissed on May 27, 1998.
D.
Count VIII relates solely to Crestar Bank but is itself related to Count VI, as to which Capital One is also a party defendant. Crestar was a defendant with Capital One in a lawsuit that had been brought by the debtor prepetition prepetition in the Circuit Court of Prince William County, Virginia. The claims in that suit involved a judgment Capital One had obtained against the debtor in the General District Court for the City of Richmond and a resulting garnishment (eventually quashed by the state court) of the debtor's accounts at Crestar Bank. Crestar, in response to the garnishment summons, withdrew all the funds (totaling $1,796.36) from the debtor's accounts, refusing the debtor access to the funds and causing seven checks to bounce. Despite the debtor's demands, it is alleged, Crestar sent the money to the court, less $75.00 Crestar withheld as a garnishment fee. After the garnishment was quashed, the funds were recredited to the account, with the exception of the $75.00 garnishment fee. In the interim, the debtor had brought suit against Capital One and Crestar. Following the commencement of the bankruptcy case, Capitol One filed demurrers, which were sustained by the circuit court on March 23, 1998, resulting in the dismissal of the debtor's lawsuit. It is alleged that Crestar further violated the automatic stay by making a demand for attorneys fees in the state court action, by postpetition demand for payment of an alleged $60.91 account overdraft, and by referring the collection of that amount to a collection agency. Finally, it is alleged that Crestar violated the automatic stay by closing the debtor's accounts on March 5, 1998.
As noted above, Count VI has been previously dismissed on Capital One's motion. It is discussed here only to place the remaining issues in context.
Although not alleged in the complaint, it appears that the debtor filed a timely motion to rehear. It is not clear whether the circuit court ever formally ruled on the motion. The debtor's subsequent appeal to the Supreme Court of Virginia was dismissed by that court on October 28, 1998.
Discussion I.
As an initial matter, the moving defendants assert — as Capital One did previously — that the complaint should be dismissed as having been untimely filed, based on the language of this court's order reopening the debtor's case. That order, as discussed, granted the debtor 60 days from the date of its entry (November 5, 1998) to commence any adversary proceedings in this court for violations of the automatic stay. The present complaint was not filed until January 5, 1999, one day after the deadline imposed by this court.
As will be discussed, the court's memorandum opinion concluded that certain of the debtor's proposed causes of action lacked apparent merit and cautioned the debtor against asserting claims that could not be legally supported.
In response, the debtor represents that he arrived at the courthouse on January 4, 1999, at approximately 5:00 p.m., but that the doors were locked. According to the debtor, he was unable to leave from work on January 4, 1999, in sufficient time to arrive at the courthouse before 5:00 p.m. The debtor further represents that from November 5, 1998, to January 4, 1999, he made three automobile trips to and from Colorado in connection with being called to active duty in Virginia as a member of the United States Army Reserve. That travel, the debtor explains, coupled with not receiving a paycheck until January 6, 1999 (and therefore not being able to afford a messenger) contributed to the late filing of the complaint.
Normal office hours for the clerk's office are 8:30 a.m. to 5:00 p.m. By prior arrangement with the clerk's office, however, after-hours filings may be accommodated.
There can be no question that this court's order reopening the case clearly set a deadline of 60 days for the filing of any adversary proceedings. The debtor was given full and ample notice of the time limitation, even granting the delay in his actual receipt of this court's order resulting from his periods of active duty. Although the debtor is proceeding pro se, the court notes that Mr. Ditton is an experienced attorney. It would have been very easy, if he were running close to the wire, to have filed a simple motion requesting an extension of the time based on his military commitments. Such extension, if requested before the time had run, would have required only "cause shown" and could have been granted without holding a hearing, whereas a request for extension made after the time has expired requires a showing of "excuseable neglect." F.R.Bankr.P. 9006(b)(1); Pioneer Investment Svcs. Co. v. Brunswick Assocs, L.P., 507 U.S. 380, 113 S.Q. 1489, 123 L.Ed.2d 74 (1993) ("excusable neglect" is not limited to intervening circumstances beyond a party's control but allows a bankruptcy court to accept late filings caused by inadvertence, mistake, or carelessness).
In Pioneer, the Supreme Court explained that the determination of whether neglect is excusable is an equitable one, taking into account all relevant circumstances. These include the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Id. at 395, 113 S.Ct. at 1498. Although the facts in the present case may stretch excusable neglect to the limit, the court is nevertheless persuaded, after considering all the circumstances, that dismissal of the complaint for failure to file within the time fixed by this court's prior order is not warranted. The deadline imposed by this court was not meant to be a statute of limitations, but rather was intended to ensure that the debtor's case, once reopened, did not languish on the docket. Although the complaint was filed late, the delay was minimal, there has been no adverse impact on the administration of this court's docket, and the court accepts, based upon the debtor's representations, that he did not intend to protract the proceedings, ignore the deadline, flout the court's authority, or cause expense or inconvenience to the defendants. Moreover, the defendants have failed to show how they were prejudiced because the complaint was filed one day late. Accordingly, the complaint will not be dismissed on the basis of having been untimely filed.
Based on the court's finding of excusable neglect, it is not necessary to determine whether a one-day extension would have been separately justified under § 201 of the Soldiers and Sailors Civil Relief Act of 1940, 50 App. U.S.C. § 521, which provides as follows:
At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant, during the period of such service or within sixty days thereafter may, in the discretion of the court in which it is pending, on its own motion, and shall, on application to it by such person or some person on his behalf, be stayed as provided in this Act, unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service.
II.
Crestar, Bank of America, and Freddie Mac also assert that, even if the complaint is not dismissed as untimely, the counts relating to them should be dismissed for failure to state a claim for relief.
A.
Federal Rule of Civil Procedure 12(b)(6), as incorporated by Federal Rule of Bankruptcy Procedure 7012, allows a court to dismiss a complaint on the ground that it fails to state a claim upon which relief may be granted. The Supreme Court has instructed that a complaint should not be dismissed for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In passing upon the sufficiency of a complaint,
[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test . . . [I]t is well established that, in passing on a motion to dismiss . . . for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
B.
Counts II, V, and VII (together with the now-dismissed Count VI) raise a common issue, which is whether the automatic stay is violated when a defendant obtains dismissal of a lawsuit in which the debtor is the plaintiff. This issue was discussed at some length in this court's prior memorandum opinion granting the debtor's motion to reopen his case, but a brief recapitulation is appropriate.
As has been often-times observed, the automatic stay that arises under § 362(a), Bankruptcy Code, on the filing of a bankruptcy petition is one of the fundamental protections provided by the Bankruptcy Code, and serves, among other salutary goals, "to prevent a chaotic and uncontrolled scramble for the debtor's assets in a variety of uncoordinated proceedings in different courts." In re A. H. Robins Co., Inc., 63 B.R. 986, 988 (E.D. Va. 1986). Relevant to the present motions, the actions that are prohibited by the automatic stay include:
(1) the commencement or continuation . . . of a judicial . . . action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
* * *
(3) any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
§ 362(a), Bankruptcy Code (emphasis added).
The plain language of § 362(a)(1) limits its applicability to suits "against" the debtor or to recover a claim "against" the debtor. Accordingly, the majority of courts that have considered the issue have concluded that the automatic stay does not apply to suits in which the debtor is the plaintiff, and does not prevent a defendant in such a suit from seeking to have the suit dismissed or otherwise defending against the debtor's claim. See Carley Capital Group v. Fireman's Fund Ins. Co., 889 F.2d 1126 (D.C. Cir. 1989) (debtor's appeal from judgment in insurance company's favor in prepetition suit brought by debtor not stayed by involuntary bankruptcy petition filed against debtor); Martin-Trigona v. Champion Fed. S L Assn., 892 F.2d 575 (7th Cir. 1989) (automatic stay did not bar defendant from filing motion to dismiss lawsuit brought by debtor); White v. City of Santee (In re White), 186 B.R. 700 (9th Cir. BAP 1995); In re U.S. Abatement Corp., 39 F.3d 563, 658 (5th Cir. 1994).
The debtor argues, though, that upon the filing of the bankruptcy petition his causes of action became the property of the bankruptcy estate, and that the prosecution of motions to dismiss those causes of action necessarily constitutes an "act . . . to exercise control" over those causes of action in violation of § 362(a)(3). In re General Associated Investors Ltd. Partnership, 159 B.R. 551 (Bankr. D. Ariz. 1993); see also In re Albion Disposal, Inc., 217 B.R. 394. 404-405 (W.D. N.Y. 1997) (collecting cases on exercise of control). In this connection, there can be no question that causes of action owned by a debtor become property of his or her bankruptcy estate. Field v. Transcontinental Ins. Co., 219 B.R. 115, 118 (E.D. Va. 1998), citing Tignor v. Parkinson (In re Tignor), 729 F.2d 977, 981 (4th Cir. 1984). Indeed, so long as the debtor's causes of action remain property of the bankruptcy estate, only the trustee (or, in a chapter 11 case, the debtor in possession) has standing to prosecute them. In re Osborn, 176 B.R. 217 (Bankr. E.D. Okla. 1994). Furthermore, with respect to pending litigation, the trustee is given at least 60 days in which to intervene. § 108(b), Bankruptcy Code; Heyman v. M. L. Marketing Co., 116 F.3d 91, 93-94 (4th Cir. 1997) (chapter 7 trustee, as successor to debtor-plaintiff, would have had at least a 60-day period to take control of existing lawsuit and to comply with court's order requiring corporate plaintiff to obtain counsel or suffer dismissal of its case).
Only the trustee, not the debtor, may claim the benefit of the extension provided by § 108(b). Craig v. Barclays American Finance, Inc. (In re Craig), 1 B.R. 864 (Bankr. E.D. Term. 1980).
As discussed in the prior memorandum opinion, this court finds the reasoning of Martin-Trigona more persuasive than that of General Associated Investors, the only case cited by the debtor. The analysis in General Associated Investors has been criticized by the Bankruptcy Appellate Panel for the circuit in question. White, 186 B.R. at 706-707. Moreover, the facts in General Associated Investors are significantly different from those in the present case. General Associated Investors was a chapter 11 case. Prior to the filing of its petition, the debtor in possession had filed in state court an appeal of a real estate assessment. 159 B.R. at 552. Some 7 months after the bankruptcy was filed, the state tax authority filed a motion to dismiss the appeal based on the debtor's failure to pay the taxes for the year in question. Under state law, payment of the taxes was a requirement for court review. Id. The state court, finding that it was without jurisdiction to consider the debtor's appeal, dismissed it. The bankruptcy court, without elaboration and without citing any case authority, held that the tax authority, by moving to dismiss, "attempted to control the cause of action," thereby "attempting to exercise control over the property of the estate." Id. at 554. The state tax authority's motion to dismiss in General Associated Investors, however, was not a purely defensive move. As noted, it was predicated on the debtor's failure to comply with a state law requirement for the payment of prepetition taxes as a condition of appealing the assessment. Thus, in a very real sense, the motion to dismiss placed pressure on the debtor to pay those taxes or risk the loss of its appeal right. In the present case, by contrast, the demurrers and motions to dismiss were not predicated on the debtor's failure to pay a prepetition claim and did not, as a practical matter, have the effect of coercing payment of a prepetition claim. Accordingly, this court, concludes that simply filing or arguing a motion to dismiss in an action in which the debtor is the plaintiff does not constitute the exercise of "control" over that cause of action.
Even if the court is incorrect in its conclusion concerning the effect of § 362(a)(3) on pending lawsuits in which the debtor is the plaintiff, the court could not find that the orders finally dismissing those lawsuits were, as the debtor argues, "void." The court initially notes that there is disagreement as to whether actions taken in violation of the automatic stay are void or only voidable. The United States District Court for this district has sided with those courts holding that such actions are voidable rather than void. Khozai v. RTC, 177 B.R. 524 (E.D. Va. 1995).
Additionally, the automatic stay with respect to the enforcement of acts against property of the bankruptcy estate terminates once such property is no longer property of the estate. § 362(c)(1), Bankruptcy Code. Property of the bankruptcy estate includes property the debtor has claimed as exempt. Shirkey v. Leake, 715 F.2d 859, 863 (4th Cir. 1983). Once the exemption is allowed, however, such property passes out of the bankruptcy estate. A debtor's claimed exemptions are incontestible if no objection is filed within 30 days of the meeting of creditors, whether or not the debtor has a colorable basis for claiming the exemption. § 522(1), Bankuprtcy Code; F.R.Bankr.P. 4003(b); Taylor v. Freeland Kronz, 503 U.S. 638, 112 S.Ct. 1644 (1992). The meeting of creditors in the debtor's case was held on February 12, 1998, and the last day to object to his claimed exemptions was therefore March 16, 1998. No such objections were filed, and the lawsuits therefore ceased to be property of the bankruptcy estate on March 17, 1998. The order sustaining Crestar's demurrer in the debtor's suit against it and Capital One was not entered until March 23, 1998. The order dismissing the debtor's suit against Bank of America and Freddie Mac was not entered until May 8, 1998. Finally, the order dismissing the debtor's appeal from the Freddie Mac eviction action was not entered until May 27, 1998. Since the automatic stay was not in effect when the dismissal orders were entered, there is no basis upon which this court could determine that they were void. Accordingly, Counts V and VII fail to state a claim upon which relief may be granted, and those counts will be dismissed.
The court's prior ruling dismissing Count VI suggested that the relief sought by the debtor might also be barred by the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983). Under the Rooker-Feldman doctrine, lower federal courts do not have authority to sit in direct review of state court judgments, even where a federal question is presented. See Dugan v. Childers, 11 F. Supp.2d 793, 794 (E.D. Va. 1998). ("[T]he controlling factor in determining the applicability of the Rooker-Feldman doctrine is whether the litigants seek to have the federal court assess the merits of a state court decision.") It seems clear that application of the Rooker-Feldman doctrine would prevent this court from voiding a state court judgment where a controlling Federal question had been presented to, and considered by, the state court. In re Massa, 217 B.R. 412 (Bankr. W.D. N.Y. 1998) (Rooker-Feldman doctrine precluded bankruptcy court review of state court determination that debt was not discharged). It is far less clear that Rooker-Feldman would apply where the bankruptcy issue was not actually litigated in the state forum. In any event, since the entry of the dismissal orders did not violate the automatic stay, the court need not rule on the applicability of the Rooker-Feldman doctrine to the present facts.
C.
With respect to Count II, which seeks money damages against Bank of America and Freddie Mac for violation of the automatic stay, so much of the debtor's claim as is grounded on the defendants having moved for dismissal of the debtor's suit must, for the reasons already stated, be dismissed. However, the complaint further alleges that the motions to dismiss sought an award of attorneys' fees, apparently on the ground that the debtor had instituted the suit without a proper legal basis. Since the suit was filed prepetition, any claim against the debtor related to its improper filing necessarily arose prepetition even though not asserted until after the petition was filed. Thus, a request for attorneys fees related to the debtor's prepetition conduct goes well beyond purely defensive actions and is expressly stayed by § 362(a)(1). But see In re Way, 229 B.R. 11, 14 (9th Cir. BAP 1998) (holding that the request for attorneys fees and costs contained in a motion to dismiss did not constitute a counterclaim against the debtor/plaintiff in violation of the automatic stay). The fact that no attorneys fees were actually awarded by the state court does not make the request for them any less willful a violation of the automatic stay if the requesting party had knowledge of the bankruptcy. Whether the debtor would be entitled to anything more than purely nominal damages is another issue, but that is a matter for summary judgment or trial. Although Bank of America and Freddie Mac assert that no attorneys fees were actually requested when the matter came up for hearing in state court, the court cannot determine what happened at the hearing without going outside the four corners of the complaint. On a motion to dismiss, the court is required to treat the well-pleaded allegations of the complaint as true. While it may seem doubtful that the debtor will be able to carry his burden of proof on the issue of damages, that, as the Supreme Court noted in Scheuer v. Rhodes, is not the test. The issue may well be suitable for summary judgment at an appropriate point, but on the face of the complaint the court cannot conclude that the debtor will be unable to "prove . . . facts in support of his claim which would entitle him to relief," Conley v. Gibson. Accordingly, Count II will not be dismissed.
D.
With respect to Count VIII, Crestar argues that the deduction of $75.00 from the debtor's account in November 1997 occurred prepetition and, thus, could not have violated the automatic stay. Putting aside the merits of whether Crestar was entitled to charge such a fee, the court agrees that its prepetition deduction did not violate the automatic stay, even if the debtor made post-petition demands that the $75.00 be restored to his account. While a party in possession of property of the bankruptcy estate has a duty to turn over such property to the trustee "unless such property is of inconsequential value or benefit to the estate," § 542(a), Bankruptcy Code, there is no suggestion in the complaint that any demand was made to turn the $75.00 over to the trustee, as opposed to the debtor. The court will assume without deciding that, where there is no dispute that funds constitute property of the estate, a party violates the automatic stay by not paying those funds over to the trustee. Where, however, there is a genuine dispute as to the debtor's — and thus the bankruptcy estate's — right to the funds, a party does not violate the automatic stay simply by failing to pay the disputed amount, even where the demand is made by the trustee rather than the debtor. Whether the debtor in fact has a valid contract claim against Crestar for recovery of the $75.00 fee is immaterial, since this court's jurisdiction under 28 U.S.C. § 1334 and 157(a) does not extend to litigation of the debtor's causes of action against third parties once they have ceased to be property of the bankruptcy estate. Poplar Run Five L.P. v. Virginia Electric Power Co. (In re Poplar Run Five L.P.), 192 B.R. 848 (Bankr. E.D. Va. 1995); Lux v. Spotswood Constr. Loans, 176 B.R. 416 (E.D. Va. 1994), aff'd 43 F.3d 1467 (4th Cir. 1994).
Additionally, to the extent that the claim against Crestar for the $75.00 was asserted in the now-dismissed lawsuit against Capital One and Crestar, relitigation of that claim in this court would be barred by res judicata.
In its motion to dismiss, Crestar did not address that portion of the complaint alleging an attempt to collect $60.91 from the debtor post-petition. It is not altogether clear from the complaint whether Crestar's claim for that sum arose prepetition or postpetition, but a fair reading of the complaint suggests that it could have been the former. As noted above, the court must accept the well-pleaded allegations of the complaint as true for the purposes of this motion. Similarly, without going beyond the four corners of the complaint, the court is unable to determine that the closing of the debtor's bank account on March 5, 1998 — while the automatic stay was still in effect — did not violate the automatic stay. Crestar alleges that no violation occurred because the account had a negative balance. That assertion, however, is disputed by the plaintiff. A Rule 12 motion to dismiss is not the proper context in which to resolve a factual dispute. Accordingly, Count VIII will not be dismissed at this time.
E.
A separate order will be entered granting the motions to dismiss as to Counts V and VII and denying them as to Counts II and VIII.