In reading bankruptcy court opinions concerning violations of the automatic stay, and from my practice in prosecuting these violations, it would appear the greatest misunderstanding of 11 U.S.C. § 362(k) (and the pre-BAPCPA provision of § 362(h)), is the distinction between damages and injury.
As I have often said, "damages" do not constitute a element that must be established to establish liability under § 362(k). Damages are simply a consequence of the bankruptcy court otherwise finding a willful violation of the stay.
Injury, on the other hand does not have to be individually proved up by a Plaintiff in a stay violation for the simple reason that the proving up of a violation (any violation, willful or otherwise) establishes the violation of a core right, which constitutes an injury. If you prove what you otherwise need to prove under § 362(k), you have established injury.
Yet, well meaning bankruptcy judges, as well as less than well meaning defense counsel, continue to spend much time and effort attempting to (1) confuse actual, out-of-pocket damages with injury, and (2) attempting to refute injury is separately established, contesting whether a defendant is liable under § 362(k). It is an analysis that is simply unnecessary.
As to the issue of damages v. injury the tendency is to treat these a synonomous terms. Defendants, and some judges, continue to believe that if actual, out-of-pocket damages cannot be established at the outset of the case prosecuting a violation, then the plaintiff simply cannot prevail. This would seem, however, to ignore proper legal construction. Words in a statute are not to be read so as to render them superfluous. Hence, the elementary rule of statutory construction is that, wherever possible, effect must be given to every word of a statute. United States v. Nordic Village, Inc., 503 U.S. 30, 112 S.Ct. 1011, 1015 (1992). The terms injury and damages are included in the same sentence and cannot be interchangable terms.
Further, the 5th Circuit (as with all circuit courts) does not establish either injury or damages as any one of the elements necessary for a determination of liability in its reading of § 362(k). In re Chesnut, 422 F.3d 298, 302 (5th Cir. 2005), In re Repine, 536 F.3d 512 (5th Cir. 2008), and Campbell v. Countrywide Home Loans, Inc., Case No. 07-20499, Pg. 9 (5th Cir. October 13, 2008).
The finding of a willful violation of the injunctions of a court, injury is already established. “Injury” is broadly defined as being "a violation of another's legal right, for which the law provides a remedy." Black's Law Dictionary 801 (8th ed. 2004). Since the automatic stay of 11 U.S.C. § 362(a) is a legal right afforded to Mr. and Mrs. Henderson that protects them from continued collection efforts by their Creditors. (H.R. Rep. No. 595, 95th Cong., 1st Sess. 174-75 (1977)) "the mere violation of the automatic stay constitutes an injury to the debtor inasmuch as the creditor's violation restricts the debtor's breathing spell and subjects the debtor to continued collection efforts, possibly including harassment and intimidation." Jackson v. Dan Holiday Furniture, LLC (In re Jackson), 309 B.R. 33, 38 (Bankr. W.D. Mo. 2004). Also see, In re Reed, 102 B.R. 243, 245 (Bankr. E.D. Okl. 1989); Bukowski v. Patel, 266 B.R. 838 (Bankr. E.D. Wis. 2001); and, In re Preston, 333 B.R. 346, 350 (Bankr. M.D. NC 2005). The United States Supreme Court recently confirmed that “injury” constitutes a standing issue, ruling that one of the elements to Article III standing a plaintiff must establish “a ―concrete and particularized‖ invasion of a ―legally protected interest”, as is the case with 11 U.S.C. § 362(a) and other bankruptcy provisions. Sprint Communications Co. v. APCC Services, Inc., 07-552, pg. 4 (U.S. 6-23-2008). The willful violation of 11 U.S.C. § 362(a)(1) and other bankruptcy provisions and rules does constitute the invasion of such a legally protected interest and the undisputed material facts above demonstrate such an invasion.
We have just read your artical on injury it all add up.Attorney's for MidFirst Bank(Midland Morgage)has ask for our Medical Records,in which we refuse to give up as of
3-1-2009.My husband and I were injured on the job in the 90's,we file for bankruptcy in 95'.We recieved a discharge in 2000.Cenlar Federal Loan reported the debt in 2001 as a live and collectable debt,even re-aged it.2002 it was sold to Aurora and they reported it the same way except they reported"foreclosure was initiated".It was removed 3 yrs. later after a long fight.Just
when we thought it was over it was re-sold
to MidFirst Bank(Midland Morgage)in 2005.On
our perfect credit there sat these BAD BOY'S.We rolled our sleeves up again for a long fight.This is 2009 and we are still fighting,but this time in court.The sad part
about this is that this was an Fha mortgage
originated in Dece of 86.This debt falls un-der the HUD 1987 Act,which all 3 violated.
Servicers of these loans MUST adhere to stict guide lines or risk sanctions,in-
cluding,withdrawing the lender's HUD approval.Because this old HUD discharged debt refuse to die we can not qualify for a
HUD loan.Now that is what I call an INJURY!!
it's like being left to bleed to death very
painful and slow.OH, I know what you are thinking,contact the FTC,Office Of Thrift
Supervion,Attorney General,BBB,Executive Office for U.S.Trustees,RESPA,Committee on Oversight and Government Reform(U.S. House of Representatives-wrote to over 40 of them)
Mailed every one a copy of the discharge order.OTS did contact MidFirst President
Mr.Robert Dilg,Jr,and mailed him a copy of the D.O.in 2007.Did it do any good?Can you imagine 3 Motgage Co. passing this discharge
debt since 2001 like it's a football,I'm
wondering will Midland ever fumble the ball.
I'm shocked at thier counsel Barrett Burke
Wilson Castle Daffin & Frappier,I mailed at
least 3 Attorney's in that office a copy of
the discharge order in 2008,all that did was
provoke them to send us a letter stating that we were yet responsible for the debt.
While most banks are going under MidFirst sees 26% profit in 2008 from all those HUD/VA Loans.They ware recgnize as being one of the best Service providers of HUD/VA
Loans all while having thier hand in the cookie jar.Freddie Mac Tier One Gold Award
and the Fannie Mae Circle of Excellence was
also given for it's highest performance.A
portfolio that stands at over 320,000 loans
totaling 25.9 billions.Well I notified Mr.C.
Erdman with RESPA,he told me I'd better leave that a lone because I would not like
the out come,Um.I dont think we know where to start with INJURY.But at least Cenlar and
Aurora has made offers(peanuts).They want my
silence,I want them to show me the money(smile).No for real I want more than any-
thing for all 4 defendents to be exposed,
this madness has to stop.This is like a horror movie played out in consumers lives
all over America(Victims After A Discharge).
Chronic disrespect of a D.O.is evidence,and
a tangible reminder,that merely enacting a law does not ensure it's success without good oversight and enforement.Bankruptcy Laws has failed terribly at granting the so
call 'Fresh Start'.I wander WHO'S second
chance opportunity is it? ours or THEIRS!
Google'ZOMBIE DEBT REFUSE TO DIE'
Posted by: Prince Ella Green | March 01, 2009 at 11:52 AM