Opinion
Case No. 6:21-bk-04805-LVV
2022-09-30
IN RE: Jenifer Montano TAVERA, Debtor.
ORDER GRANTING IN PART EMERGENCY MOTION FOR SANCTIONS FOR VIOLATION OF THE AUTOMATIC STAY
Lori V. Vaughan, United States Bankruptcy Judge
The Debtor, Jenifer Tavera ("Tavera") had a strained relationship with her landlord Hossein Makhzan ("Makhzan"). A payment dispute resulted in an eviction action and then bankruptcy, but the situation only got worse from there. Tensions escalated and Tavera eventually moved out. Now she claims Makhzan violated the automatic stay by sending her notices to vacate, harassing her with text messages, frequently attempting to inspect her home, interfering with her utilities and exhibiting overall stalking-type behaviors. Makhzan claims he was just trying to protect his property by inspecting the Property under the terms of the lease and that Tavera was the one harassing him. Both parties are in the wrong, to an extent, but only Tavera is protected by the automatic stay. After considering the testimony and evidence admitted at trial, the Court concludes that Makhzan violated the automatic stay by some of his actions (not all of them) and sanctions are appropriate.
The Court conducted a trial on April 14, 2022. Neither party was represented by counsel and the Court heard testimony from Tavera, her sister Kimberly Montano and Makhzan.
Background Facts
Tavera entered into a residential lease agreement ("the Lease") with Makhzan on August 25, 2015 for a townhome located at 148 Clearlake Circle in Sanford, FL ("the Property"). Tavera's parents were also parties to the Lease. Tavera's parents, her sister and her son all resided in the Property as acknowledged in the Lease. The Lease provided that Makhzan had the right to enter into the premises "at reasonable times and upon reasonable notice for the purpose of inspecting the premises ... or for making necessary repairs." At all relevant times, Makhzan owned the townhome next door at 146 Clearlake Circle which he used as an office.
Doc. No. 35; Trial Transcript ("TR") at 22.
Doc. No. 35.
Doc. No. 35.
It is unclear exactly when the trouble began, but Tavera started having difficulties paying rent which resulted in Makhzan filing an action for eviction prepetition on August 6, 2021. At trial, Tavera claimed she was not delinquent on the Lease payments due to rental assistance she received from Seminole County which was paid to Makhzan. Tavera also testified that Makhzan began demanding "extra money" from her during the prepetition period. However, the disputes over prepetition rent are irrelevant to the Court's analysis and the Court makes no finding as to whether Tavera was in default when she filed for bankruptcy.
Makhzan Exhibit No. 1.
TR at 23.
While the eviction was pending, on October 22, 2021 (the "Petition Date"), Tavera filed a petition for chapter 7 bankruptcy. Tavera listed Makhzan on her Schedule G, and he was mailed notice of the bankruptcy filing and meeting of creditors on October 27, 2021.
Doc. No. 1.
Doc. No. 1.
Doc. Nos. 5 & 7.
Alleged Stay Violations
Unfortunately, the bankruptcy filing did not allay the animosity between the parties or resolve their dispute. On October 31, 2021, Makhzan posted a notice on Tavera's door addressed to "148 Clear Lake Circle Tenants," stating they would soon receive a notice from the sheriff to vacate the Property, explaining that any possessions remaining in the Property would be trashed ("October 31 Notice"). Makhzan does not deny posting the October 31 Notice. Instead, Makhzan testified that he was unaware of the bankruptcy at the time and only became aware of the bankruptcy a few days later, on November 2 - during a hearing in the eviction action. Makhzan was permitted to move forward with the eviction action against Tavera's parents who were not protected by the automatic stay. On December 2, 2021 Final Judgment of Possession was entered as to Tavera's parents, but not Tavera. The parents subsequently moved out of the Property, but Tavera and the other family members remained.
Debtor Exhibit U.
TR at 120-21.
Makhzan Exhibit No. 1.
There were allegations that the parents were seen at the Property after their eviction and this resulted in further accusations and increased tension between the parties.
On January 2, 2022 Makhzan posted another notice titled, Notice from Landlord to Tenant - Termination for Failure to Pay Rent ("Jan. 2 Notice"). The Jan. 2 Notice was addressed directly to Tavera. It stated Tavera was indebted to Makhzan in the amount of $1,350 and demanded payment or possession of the Property within three days. The Jan. 2 Notice did not state whether the indebtedness was for the pre or post-petition period, but $1,350 reflects one-months’ rent. Tavera did not vacate the Property.
Debtor Exhibit 2.
Debtor Exhibit X-2.
On January 11, 2022, Makhzan requested the Circuit Court reopen the eviction action, evidently because Tavera's parents filed an appeal in the matter. The case was reopened, but Makhzan did not file any further pleadings. On January 12, Makhzan texted Tavera stating that if she agreed to return the Property to him on January 20, he would allow her parents to enter the home and help her move. That same day, Makhzan posted a notice at the residence addressed to "The Tenant of 148 Clear Lake Circle," stating that it was a "24 hours’ notice from the landlord to visit and inspect the property" ("Jan. 12 Notice"). A hand-written note from Makhzan at the bottom of the Jan. 12 Notice accused Tavera's parents of trespassing and threatened to call the police on them. Tavera subsequently called the police to file a report for harassment.
TR at 179.
Debtor exhibit X-12.
Debtor Exhibit X-10.
Debtor Exhibit X-10.
Debtor Exhibits 3 & V-1; TR at 37. The police were called multiple times and by both parties.
Makhzan repeatedly demanded an inspection of the Property and even entered the Property one evening without Tavera's consent. On January 22, Tavera's doorbell camera recorded Makhzan with officers from the Sanford Police Department entering the home without permission between 9 and 9:30 p.m. Makhzan testified that he entered the Property because he was concerned there was a leak in the home due to recent storm activity and that he believed Tavera had abandoned the Property. Makhzan and the officers tried to call Tavera before entering but they could not reach her. Makhzan then entered the Property with his key. Makhzan testified that the Property was empty except for a few boxes, as Tavera had already moved out. When Tavera called Makhzan complaining that he had entered the Property, he and the officers exited.
Debtor Exhibit V-1.
TR at 135-36.
TR at 146.
See Makhzan Exhibit 2. Makhzan claims to rely on this letter from Tavera dated December 18, 2021 saying that she will move out on January 31. This does not explain why he entered the Property on January 22.
Tavera claims that Makhzan was using his inspection rights to harass her family into moving out. Makhzan argues he was only exercising his rights under the Lease and Florida law to inspect the Property as he was concerned about damage. He also claims that Tavera, by January 22 at least, had moved, but refused to turn the Property over to him out of spite. While Makhzan is correct that he has certain inspection rights, the evidence supports Tavera's claim. On January 23, Tavera texted Makhzan that she did not give him permission to enter the Property. Makhzan responded by saying that he does not need her permission. He then called her a criminal and a low-life and told her that she will regret trying to have him arrested for entering the Property the night before. The next day, on January 24, Makhzan texted Tavera:
Debtor Exhibit T-12.
Debtor Exhibit T-12.
Debtor Exhibit T-13.
Because of your threatening, I will be inspecting the house every day until I get possession of the house. If you are not there tomorrow, I will gain access to secure the abandoned property.
Debtor Exhibit T-2.
Attached to the text was another notice stating that Makhzan will enter and inspect the Property.
Debtor Exhibits T-12 & 13.
The texts continued. On January 24, Makhzan texted a photo of a note attached to a door. While many words were misspelled, the note essentially threatened that your house will be flooded, set on fire and destroyed if you trespass or harass us again. Makhzan testified that Tavera posted this note on his door and his text was telling her to stop. Makhzan's text goes on to state, "Now you are done!" Tavera testified that she did not post this note on Makhzan's door and that this was instead a threat being made against her. However, she admitted that the note was not posted on her door. On January 25, Makhzan texted Tavera that her family was taking advantage of the system and that she cannot deny him access to the Property. He went on to text, "(u)ntil you officially surrender the property to me, I will want you there every day for inspection."
Debtor Exhibit G.
TR at 136.
Debtor Exhibit G.
TR at 47 & 99.
Debtor Exhibit T-14.
Debtor Exhibit T-14.
Several videos and photos were submitted into evidence which depict the parties arguing in the road or the driveway of the Property and Makhzan taking photos or videos of either the townhome or the tenants. Tavera claims this is further evidence of Makhzan harassing her family to force them to leave. Makhzan even testified that he filed criminal charges against Tavera for forgery (he claims she forged documents submitted to the Circuit Court). Makhzan later offered to drop the forgery case against Tavera if she delivered possession to him.
Debtor Exhibit T-14; TR at 185.
Debtor Exhibit X-40.
Makhzan does not deny sending any of these texts, posting the notice, or making any of these statements, but he does deny that he harassed Tavera. Instead, Makhzan contends that he was only protecting his property by enforcing his legal right to inspect and that Tavera was taking unfair advantage by not paying rent yet refusing to return the Property. During this period, however, Makhzan never seeks stay relief or files anything in the Bankruptcy Court.
On January 26, Tavera filed an Emergency Motion for Sanctions for Violation of the Automatic Stay. Makhzan then filed an Emergency Motion for an Order Confirming Termination of Automatic Stay on February 2. The Court held a preliminary hearing on February 15 to consider both motions. At the hearing, Tavera was asked how much time she needed to move. Tavera said she only needed one day. Makhzan's Stay Relief Motion was granted in part and Tavera was ordered to return possession of the Property. The Debtor received her discharge on February 15, and therefore the stay was lifted by operation of 11 U.S.C. § 362(c)(2).
Doc. No. 15—Tavera's first Motion for Sanctions was filed on January 24 (Doc. No. 13) but denied for failure to include proof of service.
Doc. No. 22.
Doc. No. 28.
A trial was held on Tavera's Motion for Sanctions on April 14. Both Tavera and Makhzan participated and submitted testimony and evidence. Neither party was represented by counsel. The animosity between the parties was evident at trial with each party repeatedly accusing the other of lying and a variety of bad acts, making it difficult to focus on the relevant facts.
Overall, the history of this dispute displays extreme animosity and poor behavior on both sides. Tavera refused to allow Makhzan access to the Property. The Court finds that by January 22, Tavera had already moved out, even though some of her belongings were still inside the home. Still, she refused to return possession of the Property to punish Makhzan, costing him valuable time in re-letting the home. However, this does not excuse or ameliorate Makhzan's behavior. The Court finds that Makhzan's numerous texts, inspection notices and attempts to enter the Property under the guise of inspection were instead harassment designed to force Tavera to leave and relinquish possession of the Property. It is understandable that Makhzan wanted Tavera out - she was not paying rent - but this does not excuse his behavior. The appropriate action would have been to seek stay relief to continue the eviction - an action Makhzan only took after Tavera sought sanctions.
Legal Analysis
Filing a petition under the Bankruptcy Code imposes an automatic stay against "any act to collect, assess or recover a claim against the debtor that arose before the commencement of the case under this title." 11 U.S.C. § 362(a)(6). It also prohibits "any act to obtain possession of property of the estate." 11 U.S.C. § 362(a)(3). The automatic stay is designed to stop all collection efforts and harassment by creditors, relieving debtors of the financial pressures which prompted the bankruptcy filing. In re Draper , 237 B.R. 502, 505 (Bankr. M.D. Fla. 1999) ; see also Ellison v. Northwest Engineering Co. , 707 F.2d 1310, 1311 (11th Cir. 1983) (noting that the automatic stay provides debtors with "a breathing spell from creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressure that drove [the debtor] into bankruptcy." (quoting H.R. Rep. No. 95-595, at 340-344 (1977), U.S. Code Cong. & Admin. News 1978, p. 5963)). The automatic stay remains in effect until the case is closed, dismissed or until the time a discharge is granted or denied. See 11 U.S.C. § 362(c).
All references to the Bankruptcy Code refer to 11 U.S.C. §§ 101 et seq.
The Eleventh Circuit has characterized the automatic stay of § 362 as "essentially a court-ordered injunction, [and] any person or entity who violates the stay may be found in contempt of court." In re Jove , 92 F.3d 1539, 1546 (11th Cir. 1996) (citation omitted). To avoid a stay violation, the post-petition act must be an exception listed under § 362(b) or the party must obtain stay relief under § 362(d). In re Lyubarsky , 615 B.R. 924, 929 (Bankr. S.D. Fla. 2020) (citing Lodge v. Kondaur Capital Corp. , 750 F.3d 1263, 1268 (11th Cir. 2014) ).
Individuals injured by any willful violation of the stay provided by § 362 shall recover actual damages, including attorney fees and costs and when appropriate, punitive damages. 11 U.S.C. § 362(k). A "willful" stay violation occurs when the violator knew the automatic stay was invoked and intended the actions which violated the stay. Jove, 92 F.3d at 1555 (11th Cir. 1996). The violator's specific intent to violate the automatic stay is not required. Id. ; see also In re Sanders , Case No. 20-02731, 2020 WL 6020347, *2 (Bankr. M.D. Fla. Sept. 15, 2020). Individuals seeking damages for stay violations have the burden of proof to establish that the wrongdoer violated the automatic stay and the violation was willful. In re Rivera , Case No. 09-00340, 2009 WL 3735834, *2 (Bankr. M.D. Fla. Nov. 5, 2009).
At trial, Tavera introduced into evidence numerous documents, photos and videos detailing her daily interactions with Makhzan since her case was filed. In summary, Tavera claims that Makhzan violated the automatic stay by:
1. Posting the October 31 Notice threatening to forcibly remove her family;
2. Posting the Jan. 2 Notice demanding payment or possession;
3. Reopening the Eviction Action on January 11, 2022;
4. Repeated efforts to enter the Property for alleged inspections, including entering the Property without her permission on at least one occasion;
5. Numerous harassing text messages;
6. Offering to drop criminal forgery charges in exchange for possession of the Property; and
7. Interfering with her utility service and damaging her property.
The Court will address each alleged violation separately.
The 24-Hour Notice Posted October 31, 2021
Makhzan admits that he posted the October 31 Notice on that date, but argues that he was not aware of the bankruptcy until November 2, 2021 when he learned about it during a hearing in the eviction action. "Courts interpret the automatic stay broadly." In re Ellingsworth Residential Cmty. Ass'n, Inc. , No. 20-01346, 2022 WL 2388636, at *4 (Bankr. M.D. Fla. Mar. 28, 2022). There is little doubt that posting the October 31 Notice was a stay violation. It tells the Debtor and other occupants that they will receive a 24 hour notice from the sheriff "to leave the house and take all your belongings" and that "possession will be given to the owner." Posting the October 31 Notice was an act to take possession of estate property, namely Debtor's leasehold interest in the Property in violation of § 362(a)(3). "A tenancy or bare possessory interest in property is a legal or equitable interest within the meaning of [§ 541]." In re Kilby , 100 B.R. 579, 580 (Bankr. M.D. Fla. 1989) (holding that a landlord's actions to retake possession of debtor's rental property, which included repeatedly calling the debtor and entering debtor's home without permission, amounted to a willful violation of the automatic stay); In re Lewis , No. 16-07166, 2017 WL 11569062, at *4 (Bankr. M.D. Fla. Dec. 29, 2017) (finding that creditor's attempted eviction of a debtor amounted to a willful violation of the automatic stay.). Further, this act of giving Debtor notice that the sheriff would remove her and her family from the Property could also be characterized as a continuation of the pending eviction action prohibited under § 362(a)(1), and an act to collect a claim against the Debtor that arose prepetition under § 362(a)(6). See, e.g., In re Diamond , 346 F.3d 224, 227 (1st Cir. 2003) (post-petition settlement negotiations could violate stay if coercive or harassing).
Whether the stay violation was willful, thereby entitling Debtor to damages, is another story. In order to be willful, the violator must have knowledge of the bankruptcy. See Jove , 92 F.3d at 1555 (noting that a violation of the automatic stay is "willful if the violator (1) knew of the automatic stay and (2) intentionally committed the violative act, regardless whether the violator specifically intended to violate the stay."). Knowledge of the extent of the automatic stay is not required. When a party has knowledge of the bankruptcy, they are deemed to have knowledge of the automatic stay. See In re Sehman , 632 B.R. 846 (Bankr. N.D. Fla. 2021). Debtor's case was filed on October 22, 2021. The Notice of Bankruptcy Case was mailed to Makhzan by the Bankruptcy Noticing Center on October 27, 2011 - a Wednesday. October 31, 2021 was a Sunday, meaning that Makhzan would have had to receive the notice by Saturday, October 30 - only three days after it was mailed - to be aware of the bankruptcy on October 31. Makhzan denies that he was aware. Debtor has produced no evidence that he was aware of the bankruptcy prior to October 31 aside from the mailing. The Court finds it plausible that Mr. Makhzan had not received the notice by October 31. Without any evidence to the contrary, the Court finds that Makhzan was not aware of the bankruptcy and was therefore unaware of the automatic stay when the October 31 Notice was posted. Being unaware of the bankruptcy, Makhzan's stay violation was not willful and therefore sanctions are not appropriate for this violation.
Doc. No. 5.
Doc. No. 7.
Three-Day Demand Posted January 2, 2022
Makhzan does not dispute that he posted the Jan. 2 Notice on January 2, 2022. Makhzan also admits that he learned about the bankruptcy on November 2, 2021 - well before this notice was posted. The Jan. 2 Notice demands payment of past-due rent in the amount of $1,350 or a return of possession of the Property. Though it is unclear whether the Jan. 2 Notice seeks to collect debts incurred before the petition date, it was still an act to obtain possession of estate property in violation of § 362(a)(3). Because Makhzan knew about the bankruptcy and still posted the Jan. 2 Notice, the Court finds this was a willful violation of the automatic stay.
Reopening the Eviction Action
Makhzan admits that he reopened the Eviction Action. Section 362(a)(1) prohibits the "commencement or continuation" of a judicial action or proceeding against the debtor. Certainly, the Eviction Action is an action or proceeding against a debtor. While Makhzan did not take any action after the case was reopened, just having reopened a closed case could fairly be considered a continuation of that proceeding. See In re Soares , 107 F.3d 969, 973 (1st Cir. 1997) (concluding that a default judgment against debtor violated the automatic stay, even though the creditor requested the default before the debtor ever filed for bankruptcy because "the activities themselves constituted the forbidden continuation of a judicial proceeding."). The purpose of the stay is to give the debtor breathing room and stop the stress and expense of defending creditor collections. Having reopened the case, Makhzan was signaling to Tavera that he intended to move forward adding to the stress and expense of again having to defend the action. Accordingly, the Court finds that Makhzan's reopening the Eviction Action was a willful violation of the automatic stay.
TR at 179.
The Inspection Demands, the Jan. 12 Notice and the Text Messages
As of January 12, 2022, Makhzan knew about Debtor's bankruptcy. From January 13 until Tavera left the home, he repeatedly sent notices and demands that she allow him to inspect the Property. Makhzan argues that he was only trying to exercise his right to inspect the Property under the terms of the Lease and as permitted under Florida law. While Makhzan is correct that a landlord has the right to inspect a leased premises, it is a stay violation if the landlord uses this right to harass a tenant in an effort to force them to return possession of the premises. This Court has already found that Makhzan demanded inspection and even entered the Property when Tavera was not home in an effort to force her to leave. He even admitted this was his intent in his text messages to Tavera. As such, these actions are an attempt to obtain possession of estate property in violation of § 362(a)(3).
Offering to Drop Criminal Forgery Charges for a Return of Possession
The evidence is not clear if Makhzan ever pursued forgery charges, but it matters little. The filing or pursuit of criminal charges is not itself a stay violation. See 11 U.S.C. § 362(b)(1) (criminal proceedings excepted from the automatic stay). But it could be a stay violation when used to harass or coerce a debtor for a purpose prohibited by § 362(a). Here, the Court finds Makhzan's offer to drop any charges in exchange for returning possession is a stay violation. Makhzan's offer is using a threat - the threat of filing or continuing to pursue criminal charges - in an effort to have her return possession of the Property. This is clearly an action to obtain possession of estate property that violates § 362(a)(3). Lyubarsky , 615 B.R. at 930 ("if threats are made, if the debtor is harassed, the discussions are violations of the automatic stay."); In re Estrada , 439 B.R. 227, 230 (Bankr. S.D. Fla. 2010) (holding that creditor's letter to debtor threatening a negative consequence if debtor did not agree to reaffirm his debt was a violation of the automatic stay.).
Although Makhzan testified that he filed a criminal complaint against Tavera for forgery, it is unclear whether Tavera was actually charged with any crime.
Interference with Tavera's Utility Service and Damage to her Property
Finally, Tavera claims that Makhzan violated the stay by interfering with her utilities. Makhzan has a technical background and used to work for AT&T. While she was in the home, Tavera had difficulties with her wifi/internet connection and her cameras. She also received notice that her electricity would be turned off on January 25, 2022 in order to move service into a new customer's name. Tavera claims that Makhzan disconnected her internet and broke her cameras. In support, she cites to photos and video of Makhzan on the Property and his technical knowledge. Makhzan testified that he did nothing to interfere with Tavern's internet service or cameras. He further testified that the notice from her electric company was simply the result of him moving service into his name on the belief she had moved. There was no evidence that Tavera lost electricity while in the premises. There is simply insufficient evidence for the Court to find that Makhzan interfered with Tavera's utilities or damaged her property. The photos and videos only show Makhzan on the Property. This is not sufficient and Tavera has not met her burden.
Debtor Exhibit F.
Damages
Having found that Makhzan violated the stay multiple times, the question then is what sanctions are appropriate. Tavera seeks the imposition of both compensatory and punitive damages. The Bankruptcy Code mandates an award of actual damages when an individual is injured by a willful stay violation. See 11 U.S.C. § 362(k). Those damages include attorney fees and costs. A debtor has the burden to prove actual damages. Punitive damages are available in appropriate circumstances when a party acts with "reckless or callous disregard for the law or rights of other." Green Point Credit, LLC v. McLean (In re McLean) , 794 F.3d 1313, 1325 (11th Cir. 2015). Further, punitive damages are only appropriate "where a party has acted with sufficient notice concerning the legal import of its offending actions." Id.
First, Tavera alleges that she suffered severe emotional distress by Makhzan's actions. She alleges his harassment interfered with her doctor appointments and therapies for her special needs child. She also claims that her son had trouble attending his online schooling because Makhzan interfered with her internet. The Eleventh Circuit has ruled that emotional distress falls within the term "actual damages" under § 362(k) such that they Eire awardable. Lodge , 750 F.3d at 1271. To recover damages for emotional distress, at a minimum, a debtor must "(1) suffer significant emotional distress, (2) clearly establish the significant emotional distress, and (3) demonstrate a causal connection between the significant emotional distress and the violation of the automatic stay." Id.
TR at 85.
After reviewing the text messages, the notices and the photos and videos of the interactions between Tavera and Makhzan, the Court has no doubt that the situation was emotionally distressing. The parties were constantly at war and exchanging barbs on a daily basis. However, the Court is not convinced that Tavera clearly established significant emotional distress. Tavera presented no corroborating evidence of the difficulty in obtaining health care or the educational challenges experienced by her son. See In re Nibbelink , 403 B.R. 113, 120 (Bankr. M.D. Fla. 2009) ("[I]n order to sustain a recovery of actual damages resulting from a violation of the automatic stay a debtor must prove that his emotional distress is more than fleeting, inconsequential, and medically insignificant."). Further, a causal connection has not been established. Most of these difficulties are attributed to a loss of wifi or internet connection, but the evidence that Makhzan caused this lost connection is insufficient to make such a finding. The Court likewise cannot find a causal connection between the stay violation and Tavera's emotional distress because she had some level of control over these interactions. While Makhzan's texts, notices and other interactions were harassing, the Court finds the parties were engaged in mutual combat. Tavera had a long history of battle with Makhzan. Even after she had relocated her residence, she engaged in battle voluntarily. As such, emotional distress damages are inappropriate.
Other damages, however, are appropriate. At trial, Tavera submitted a list of requested damages. She seeks a total of $38,758.09 in damages. These include:
1. $4,050 for each violation (4 total) of peaceful dwelling or retaliatory conduct;
2. $1,350 per month for 14 months for lack of peaceful living under the Lease;
3. $600 for February, 2022 lease payment;
4. $1,500 for the return of her security deposit; and
5. $577.66 for stationary, USPS mail, copies and clerical services (without further breakdown of these amounts).
Except for the last item requested, all of these requests are inappropriate. Tavera is not entitled to a return of her rent for the Property. While in bankruptcy, she did not make these payments. The remainder were all prepetition charges and therefore any damages she claims could not have been caused by a violation of the automatic stay (because it was not in effect). The same is true for her security deposit. She did not lose her security deposit as a result of the automatic stay violations. Makhzan possessed a lien on her security deposit as of the Petition Date and was entitled to use it as permitted under Florida law. This is not an appropriate measure of damages.
The last category represents the type of damages that would be appropriate. Had Tavera been represented by counsel, she would be entitled to her attorney fees and costs in bringing the sanctions motions, attending trial and otherwise responding to the stay violations. As she was not, the only items she can reference are costs of materials and mailing, but this does not accurately reflect the loss of time and effort that had to be expended filing pleadings, coming to court and responding to Makhzan's violations. Some courts have recognized that it is difficult for a debtor to prove actual damages, but that damages are still appropriate. These courts have embraced the idea of nominal damages when actual damages are unable or difficult to establish. "To preserve the integrity of the automatic stay, nominal damages and attorney fees may be awarded when a debtor is unable to demonstrate actual damages under section 362(k)." In re Fohrmeister , No. 13-14728, 2017 WL 11569148, at *2 (Bankr. M.D. Fla. Jan. 3, 2017). For instance, some courts have awarded $100 per violation, plus attorney fees and costs when a creditor continued to call a debtor after notice of a bankruptcy. See In re White , 410 B.R. 322 (Bankr. M.D. Fla. 2009) ; In re Musto , No. 19-03452, 2021 WL 99343, at *4 (Bankr. M.D. Fla. Jan. 6, 2021). Accordingly, and because actual damages are difficult for a debtor to prove in a case like this, the Court will award damages of $500 for the Jan. 2 Notice, $500 for the improper entry into the Property, $500 for offering to drop the forgery charges, and $100 for every other violation including re-opening the eviction action and four harassing text messages, totaling $2,000.
Based on the evidence admitted at trial, Makhzan sent harassing text messages to Tavera on January 12, 23, 24, and 25.
The Court denies Tavera's request for punitive damages. Makhzan did not have the assistance of counsel and did not appear to be a knowledgeable landlord or businessman. While Makhzan repeatedly violated the stay after notice of the bankruptcy, the record is not sufficient to find that he acted with sufficient notice of the legal import of his actions.
Makhzan's Request for Additional Evidence and Damages
After trial, Makhzan filed a pleading titled Motion to Allow Viewing House Damage Photos. Attached, Makhzan included additional exhibits including photographs of the Property allegedly taken after Tavera moved and an estimate of what he claims are damages. Makhzan's request is denied for several reasons. First, the condition of the Property is irrelevant to Tavera's request for sanctions. Second, it is inappropriate to request damages in response to a motion for sanctions for stay violations. Even if these facts were relevant, Tavera testified at trial that she left the Property in good shape and displayed photos. The Court has insufficient evidence to make a finding. Finally, some, if not all, of the damages sought may have arisen prepetition - meaning any claim was discharged in Tavern's bankruptcy. As noted above, Makhzan has a security deposit designed to cover such claims. The request is denied.
Doc. No. 41.
Accordingly, it is
ORDERED :
1. The Emergency Motion for Sanctions for Violation of the Automatic Stay (Doc. No. 15) is GRANTED IN PART .
2. Debtor is awarded sanctions in the amount of $2,000 against Makhzan.
3. Debtor is directed to file with the Court a notice of mailing address within 7 days, which provides an address where Makhzan can mail a payment.
4. Makhzan is directed to pay the amount provided in paragraph 2 to Debtor within 30 days after Debtor files the notice of mailing address. If Makhzan fails to make payment, the Court may enter a final judgment or enter any other appropriate order.
5. The Court will enter a separate order denying Makhzan's Motion to Allow Viewing House Damage Photos.
ORDERED.