Highlights from the Creditors Practice Annual Forum 2018: Stay Relief Violations

Last month, I taught a session at the Tennessee Bar Association’s Creditors Practice Annual Forum 2018.  My section was called “Litigating Stay Violations.”

The CLE was on September 26, 2018, so, sorry, you missed it. But, to get more mileage out of the materials I prepared, I’m going to post some of the info here.

First off, the automatic stay at 11 U.S.C. § 362 operates as a stay of most collection activity against the debtor in bankruptcy.

When the stay is violated, 11 U.S.C. § 362(k) comes into play, which provides in part that “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”

And, no, a violation doesn’t have to mean that the creditor had bad intent.

Actually, a willful violation of the automatic stay requires only that: (i) the creditor knew of the stay and (ii) acted intentionally in violation of the stay. TranSouth Financial Corp. v. Sharon (In re  Sharon), 234 B.R. 676, 687 (B.A.P. 6th Cir. 1999). “[P]roof of a specific intent to violate the stay” is not required, but instead only “an intentional violation by a party aware of the bankruptcy filing.” Id.

Basically, the debtor has to prove that the creditor had notice of the Bankruptcy and took intentional action that violated the stay. Long story short, it’s not a high bar to prove those factors.

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Attend the TBA Creditors Practice Forum

The Tennessee Bar Association has asked me to teach at the 2018 Creditors Practice Forum, on September 26, 2018.

This half-day seminar is a well-attended and well-produced CLE event, designed to provide both the basics, as well as some advanced “deep-dives,” into a variety of topics in creditor’s rights practice in Tennessee.

This year, the topics will include presentations on:

  • Charging Orders and Theories of Successor Liability
  • Telephone Consumer Protection Act
  • Bankruptcy Court Stay Violations
  • Consumer Financial Protection Bureau Ethical Considerations

The full agenda can be found here.  Also, lunch is provided. If you’re going to CLE, might as well get a free-ish lunch.