In re LaTempa

25 Citing cases

  1. In re Weatherford

    413 B.R. 273 (Bankr. D.S.C. 2009)   Cited 49 times   1 Legal Analyses
    Holding a judgment obtained in violation of the automatic stay is void ab initio and without legal effect

    Once the stay is in place, "it protects all property of the estate regardless of whether or not notice has been given of the pendency of the case." McGuffin v. Barman (In re BHB Enter., LLC), No. 97-01975-JW, Adv. Pro. 97-80201, 1997 WL 33344249 at *4 (Bankr.D.S.C. Aug.27, 1997) (citations omitted); see also LaTempa v. Long (In re LaTempa), 58 B.R. 538, 540 (Bankr.W.D.Va.1986)("Under § 362(a) the automatic stay is effective upon filing of the petition. It does not require actual notice to the creditors to be effective.") The purpose of the automatic stay is to "protect the debtor from harassment, bother and contact [from creditors] for a reasonable period of time and prevent creditors from engaging in a `race of diligence.

  2. U.S. by Through Farm. Home Admin. v. Ketelsen

    104 B.R. 242 (D.S.D. 1988)   Cited 10 times

    1985) (punitive damages awarded for repossession of debtor's automobile in violation of stay which court characterized as not only willful, but also with arogant defiance of federal law); In re Mercer, 48 B.R. 562 (Bankr.D.Minn. 1985) (debtor recovered punitive damages where employees of creditor kicked in debtor's back door, scaring the debtor's children effectuating a repossession of debtor's leased stereo); In re LaTempa, 58 B.R. 538 (Bankr.W.D.Va. 1986) (repossession of vehicle in violation of automatic stay); In re Bragg; 56 B.R. 46 (Bankr.M.D.Ala. 1985). The notion that willfulness in the context of punitive damages requires a higher state of mind standard was explored in In re Wagner.

  3. In re Reid

    Case No. 15-00195-dd (Bankr. D.S.C. Nov. 28, 2016)

    e that its actions violated the stay or the confirmation order. See In re Thomas, 184 B.R. 237, 241 (Bankr. M.D.N.C. 1995) ("In order to be found in civil contempt, the offending party must have knowingly and willfully violated a definite and specific court order.") (citing In re Ryan, 100 B.R. 411, 417 (Bankr. N.D. Ill. 1989)); see also Cherry v. Arendall (In re Cherry), 247 B.R. 176, 187 - 88 (Bankr. E.D. Va. 2000) ("The Fourth Circuit Court of Appeals has considered the necessary evidentiary showing to establish a willful violation of the automatic stay, holding that 'to constitute a willful act, the creditor need not act with specific intent but must only commit an intentional act with knowledge of the automatic stay.'") (quoting Citizens Bank v. Strumpf (In re Strumpf), 37 F.3d 155, 159 (4th Cir. 1994), rev'd on other grounds, 516 U.S. 16 (1995); Cuffee v. Atlantic Bus. & Community Dev. Corp. (In re Atl. Bus. & Community Corp.), 901 F.2d 325, 329 (3d Cir. 1990)); LaTempa v. Long (In re LaTempa), 58 B.R. 538, 541 (Bankr. W.D. Va. 1986) ("[I]f the violation of the stay is a willful or knowing one, contempt is an appropriate remedy. . . . To support a finding of contempt, the party accused must be shown to have had notice or knowledge sufficient to be aware of the proscribed conduct.") (internal citations omitted). The Court has "broad discretion to fashion a remedy for civil contempt."

  4. In re Moore

    350 B.R. 650 (Bankr. W.D. Va. 2006)   Cited 15 times
    Holding that annulling an automatic stay for the purpose of validating the government's post-petition setoff would "thwart the intent of both Congress and the Commonwealth of Virginia in providing the statutory mechanisms for equality of creditor treatment and the debtor's fresh start."

    This court has held that actions taken in violation of the automatic stay are void ab initio and without effect, regardless of lack of knowledge of the filing of the petition.In re La Tempa, 58 B.R. 538, 540 (Bankr. W.D. Va. 1986). On the other hand, this court has found that an annulment of the § 362 automatic stay can be retroactively applied to validate proceedings that otherwise would be void ab intio.

  5. In re Collins

    Case Number: 02-50737 (Bankr. M.D.N.C. Jun. 21, 2002)   Cited 1 times

    In re Wills, 226 B.R. 369, 376 (Bankr. E.D.Va. 1998). Furthermore, a creditor's continued retention of estate property after notice of a bankruptcy filing is a continuing violation of the stay. In re La Tempa, 58 B.R. 538 (Bankr.W.D.Va. 1986); In re Miller, 10 B.R. 778 (Bankr. D. Md. 1981); In the Miller case, the court reasoned "[i]t is implied in § 362 that a creditor is under an obligation to maintain the status quo as of the moment of the filing of the petition and to take whatever affirmative action is necessary to do so." In re Miller, 10 B.R. at 780.

  6. In re Bolen

    295 B.R. 803 (Bankr. D.S.C. 2002)   Cited 27 times
    Holding that “the continued retention of collateral that was admittedly wrongly repossessed postpetition constitutes a willful violation of the automatic stay when the creditor has notice of the pending bankruptcy”

    The continued retention of collateral that was admittedly wrongly repossessed postpetition constitutes a willful violation of the automatic stay when the creditor has notice of the pending bankruptcy case. See McCarthy v. Imported Cars of Maryland, Inc. (In re Johnson), 230 B.R. 466, 470-71 (Bankr.D.D.C. 1999) (ruling that a creditor who retained a vehicle wrongly repossessed postpetition and who had notice from the Chapter 7 trustee of the bankruptcy case willfully violated the automatic stay); LaTempa v. Long (In re LaTempa), 58 B.R. 538, 542 (Bankr.W.D.Va. 1986) (finding a willful violation of the automatic stay where the creditor who knew of the debtors' bankruptcy filing retained possession of a vehicle that it repossessed postpetition for three days before returning it to the debtors); Mullis v. USA Rest. Equip. Co. (In re Harsh), 277 B.R. 833, 836-38 (Bankr.M.D.Ga. 2001) (finding that continued control over collateral wrongly repossessed postpetition with knowledge of the bankruptcy case constituted a knowing and willful violation of the automatic stay); Ard v. Auto. Acceptance (In re Ard), C/A No. 95-70839-D, Adv. Pro. No. 95-8051-D, slip op. at 2 (Bankr.D.S.C. Mar. 5, 1996) (holding that a creditor who wrongly repossessed a vehicle postpetition willfully violated the automatic stay when he retained the vehicle despite notice of the bankruptcy case). Relying on its policy that requires debtors to provide proof of insurance and to demand the return of the collateral before it returns trucks, Defendant justifies its retention of the Truck

  7. In re Bolen

    C/A No. 01-13028-W, Adv. Pro. No. 01-80333-W (Bankr. D.S.C. Jun. 21, 2002)

    The continued retention of collateral that was admittedly wrongly repossessed postpetition constitutes a willful violation of the automatic stay when the creditor has notice of the pending bankruptcy case. See McCarthy v. Imported Cars of Maryland, Inc. (In re Johnson), 230 B.R. 466, 470-71 (Bankr. D. D.C. 1999) (ruling that a creditor who retained a vehicle wrongly repossessed postpetition and who had notice from the Chapter 7 trustee of the bankruptcy case willfully violated the automatic stay); LaTempa v. Long (In re LaTempa(, 58 B.R. 538, 542 (Bankr. W.D. Va. 1986) (finding a willful violation of the automatic stay where the creditor who knew of the debtors' bankruptcy filing retained possession of a vehicle that it repossessed postpetition for three days before returning it to the debtors); Mullis v. USA Rest. Equip. Co. (In re Harsh), 2001 WL 1855332, at *3 (Bankr. M.D. Ga.) (finding that continued control over collateral wrongly repossessed postpetition with knowledge of the bankruptcy case constituted a knowing and willful violation of the automatic stay); Ard v. Auto. Acceptance (In re Ard), C/A No. 95-70839-D, Adv. Pro. No. 95-8051-D, slip op. at 2 (Bankr. D. S.C. Mar. 5, 1996) (holding that a creditor who wrongly repossessed a vehicle postpetition willfully violated the automatic stay when he retained the vehicle despite notice of the bankruptcy case). Relying on its policy that requires debtors to provide proof of insurance and to demand the return of the collateral before it returns trucks, Defendant justifies its retention of the Truc

  8. Ward v. I.R.S.

    261 B.R. 889 (Bankr. W.D. Va. 2001)   Cited 1 times

    In re Burns, 112 B.R. 763 (Bankr.E.D.Va.1990); In re LaTempa, 58 B.R. 538 (Bankr.W.D.Va.1986). While the Court is aware of authority which has held that a bankruptcy court has the power to grant relief from the stay retroactively and thereby validate an action otherwise void, the Court believes that to do so would fly directly in the face of the wording of this Court's conversion Order dated May 14, 1998.

  9. In re Boone

    235 B.R. 828 (Bankr. D.S.C. 1998)   Cited 5 times
    Awarding $4,000.00 in fees and costs

    In re Bunch, 119 B.R. 77 (Bkrtcy.D.S.C. 1990). Also see In re McMahon, 129 F.3d 93 (2d Cir. 1997) and In re LaTempa, 58 B.R. 538 (Bkrtcy.W.D.Va. 1986). At trial, the FDIC offered no sufficient explanation or excuse to justify its participation in the post-petition sale of the residence.

  10. In re Excel Engineering, Inc.

    224 B.R. 582 (Bankr. W.D. Ky. 1998)   Cited 10 times
    Refusing to recognize validity of postpetition creation and perfection of mechanic's lien because creditor had no lien at the time debtor filed for bankruptcy

    The case law provides for the recovery by the debtor of actual damages, including costs and attorney fees, as well as punitive damages for willful violations of the stay. See In re Bloom, 875 F.2d 224 (9th Cir. 1989); In re Atlantic Business Community Corp., 901 F.2d 325 (3rd Cir. 1990); In re Barney's Boats of Chicago, Inc., 616 F.2d 164 (5th Cir. 1980); In re La Tempa, 58 B.R. 538 (Bankr.W.D.Va. 1986); In re AM Internat'l, Inc., 53 B.R. 744 (Bankr.M.D.Tenn. 1985).