Summary
ruling postponement of sheriff's sale was an act but not a continuation of a proceeding
Summary of this case from Perez v. Deutsche Bank Nat'l Trust Co.Opinion
BKY 00-43639
November 21, 2002
Brain F. Kidwell, St. Paul, MN, for debtor.
Eric D. Cook, St. Paul, MN, for Long Beach Mortgage Company.
Jasmine Z. Keller, Minneapolis, MN, trustee.
MEMORANDUM ORDER DENYING DEBTOR'S § 362(h) MOTION
This case came on for hearing on the debtor's motion pursuant to 11 U.S.C. § 362(h). Brian F. Kidwell appeared for the debtor and Eric D Cook appeared for Long Beach Mortgage Company.
This court has jurisdiction over this matter pursuant to 28 U.S.C. § 157 and 1334, and Local Rule 1070-1. This is a core proceeding.
THE FACTS
Both parties have alleged various facts relating to issues that are currently involved in state court litigation. The only facts that are relevant to this proceeding, however, are simple: Long Beach began foreclosure of its mortgage in March of 2000 On June 30, 2000, it began publication of its foreclosure notice and served the debtor on July 7, 2000. The foreclosure sale was scheduled for August 17,200O. The debtor filed this Chapter 13 case on August 16, 2000 Long Beach postponed the sale and a Notice of Postponement was published on August 25, 2000 The debtor's case was dismissed on September 1, 2000, for failure to file any schedules or statements.
THE DEBTOR'S CLAIMS
The debtor argues that the publication of the Notice of Postponement was a violation of the automatic stay because it was a "continuation, including the issuance or employment of process, of [an] action or proceeding against the debtor" 11 U.S.C. § 363(a)(1); an "act to obtain possession of property of the estate or property from the estate" § 362(a)(3); an "act to enforce any lien against property of the estate . . ." § 362(a)(4); an "act to . . . enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of a case . . . " § 362(a)(5) The debtor also claims that Long Beach wilfidly violated the automatic stay pursuant to 11 U.S.C. § 362(h), and seeks damages under that provision, including punitive damages and attorneys fees. I find that there was no violation of the automatic stay.
DISCUSSION
The primary purpose of the automatic slay is to give the debtor a breathing spell from his creditors, to stop all collection efforts, stop all harassment of a debtor seeking relief, and to maintain the status quo between the debtor and his creditors, thereby affording the parties and the court an opportunity to appropriately resolve competing economic interests in an orderly and effective way Zeoli v. RIHT Mortgage Corp., 148 B R. 698, 700 (D.N.H 1993); Notes of Committee on the Judiciary, Sen.Rep No 989, 95th Cong., 2d Sess. 54, reprinted in (1978) U.S. Code Cong Ad.News 5787, 5840. Maintaining the status quo is a repeating theme in construing the automatic stay provisions. In re New American Food Concepts, 70B.R. 254,257-258 (Bankr.N.D.Ohio 1987) (stating in litigation concerning the automatic stay the Code generally seeks to leave matters in a status quo posture). The automatic stay does not, however, necessarily prevent all activity outside the bankruptcy forum, and the weight of authority on the issue of whether postponement of a sheriffs sale in accordance with state law is a violation of the automatic stay have held that postponement notices specifying a new sale date do not violate the provisions of 11 U.S.C § 362
See, e.g., Citizens Bank of Maryland v. Strumpf, 516 U.S. 16 (1995). where the Supreme Court held that a hank could put an administrative freeze on a debtor's hank account to protect its setoff rights as long as it did not actually offset until it obtained relief from the stay.
Talor v. Slick, 178 F.3d 698 (3rd Cir. 1999), In re Peters, 101 F.3d 618 (9th Cir. 1996); First Nat'l Bank of Anchorage v. Roach (In re Roach), 660 F.2d 13 16 (9th Cir. 1981); Washington Mutual v. Fritz (In re Fritz), 225 B.R. 218 (E D. Wash. 1997); Zeoli v. RIHT Mortgage Corp., 148 B.R. 698 (D.N.H. 1993), In re Barnes, 119 B.R. 552 (SD. Ohio 1989), Workingmen's Saving and Loan Ass'n of Dellwood Corp. V. Kestner, 438 Pa. Super 186, 652 A.2d 327 (1994); see also In re Roche, 228 B.R. 102, 103-104 (Bankr.M.D.Pa 1998) (stating that every court that has studied this specific issue (and has not been reversed) has found no violation).
The Notice of Postponement of the sheriffs sale in this case was not a continuation of any action or proceeding against the debtor Similarly, it was not an act to obtain possession of property of the estate or property from the estate. It was not an act to enforce a lien against the property of the estate, nor was it an act to enforce against property of the debtor any lien
Long Beach's only alternative was to cancel the sale completely, which would nullify its foreclosure action, requiring it to start all over again, losing at least six weeks and incurring significant additional cost. This would turn the automatic stay into a sword rather than a shield it is intended to be Postponement of a foreclosure sale is certainly an act, but it is not a continuation of a proceeding against the debtor prohibited by $ 362 Taylor v. Slack, 178 F.3d 698, 702 (3rd Cir 1999). Rather, it is better characterized as an act in preservation of a stayed proceeding. Id., Zi V. RIHT Mortgage Corp., 148 B.R. 698, 701 (Bankr D N.H. 1993). Such preservation continues until the bankruptcy process is completed or until the creditor obtains relief from the automatic stay.
I note that it has not been shown that harassment, rather than preservation of the status quo, was a motivating factor on the part of Long Beach. It similarly has not been shown that the mere postponement of the sheriffs sale either harassed the debtor, or revived the financial pressures that drove him into bankruptcy. See Hart v GMAC Mortgage Corp. (In re Hart), 246 I3 K. 70Y, 741 (Bankr.E.D.Mass. 2000) (stating that if a secured party repeatedly continued the foreclosure sale for brief periods, it is conceivable that harassment rather than preservation of the status quo would be motivating the creditor and warrant judicial intervention). Since there was no violation of the automatic stay, the debtor is obviously not entitled to damages under 11 U.S.C. § 362(h)
ORDER
THEREFORE, IT IS ORDERED that:
The debtor's motion for damages under 11 U.S.C. § 362(h) is denied.