See In re Heghmann, 316 B.R. 395, 404-05 (B.A.P. 1st Cir. 2004) ("The burden is on the debtor to prove by a preponderance of the evidence that she suffered damages as a result of the stay violation.") He has, in fact, failed to present any evidence of damages in response to U.S. Bank's Motion. Left only to speculate as to what Berube's damages might be, the Court is skeptical that any significant award of attorney's fees would be appropriate given the failure on the part of Berube's counsel to respond to U.S. Bank's offer to amend its pleading.See In re Clay, Bankruptcy No. 10-53848, 2011 WL 2312334, at *2 (Bankr. E.D. Ky. June 10, 2011) ("A substantial award of damages in the form of attorney fees and costs is not proper where a debtor makes no effort to resolve the matter before filing the complaint."). The Court notes that Berube's counsel could have alternatively invoked the procedures contained in Federal Rule of Civil Procedure 11(c)(2) if he believed that counsel for U.S. Bank had filed a complaint that violated the requirements of Rule 11(b)(2).
That said, this Court has previously ruled in the stay violation context that "[d]ebtors must be mindful of their duty to mitigate their damages because ‘claims for fees incurred in the prosecution of an unnecessary motions [sic] are not recoverable.’ " Witham , 579 B.R. at 794 (quoting Springer , 2017 WL 3575859, at *3 (internal citation omitted)); see alsoClay v. Credit Acceptance Corp. (In re Clay) , No. 10-53848, 2011 WL 2312334, at *2 (Bankr. E.D. Ky. June 10, 2011) ("A substantial award of damages in the form of attorney fees and costs is not proper where a debtor makes no effort to resolve the matter before filing the complaint.") (citing In re Newell , 117 B.R. 323, 326 (Bankr. S.D. Ohio 1990).
See e.g., In re Frambes, 2012 WL 400735 at *8; Clay v. Credit Acceptance Corp. (In re Clay), Bankr. Case No. 10-53848, Adv. Case No. 11-5003, 2011 WL 2312334 (Bankr. E.D. Ky. June 10, 2011). The facts surrounding a violation of the discharge injunction are unique to each case and the facts must be considered while balancing "the importance of punishing willful violations of the discharge injunction" with "the importance of preventing motions for contempt from becoming a profit-making endeavor."
In fact, this Court has refused to award the total attorneys' fees requested as damages for an automatic stay violation where there is evidence that the debtor and/or his counsel could have mitigated damages by attempting to resolve the matter prior to litigation but did not do so. See Clay v. Credit Acceptance Corp. (In re Clay), Bankr. Case No. 10-53848, Adv. Case No. 11-5003, 2011 WL 2312334 (Bankr. E.D. Ky. June 10, 2011) (refusing to award $10,300.00 in attorneys' fees for an automatic stay violation for failure to mitigate damages prior to the filing of the adversary proceeding).