566 F.3d 699 (7th Cir. 2009), 08-2077, Thompson v. General Motors Acceptance Corp., LLC

• Citation: 566 F.3d 699
• Opinion Judge: WILLIAMS, Circuit Judge.
• Party Name: Theodore A. THOMPSON, Debtor-Appellant, v. GENERAL MOTORS ACCEPTANCE CORPORATION, LLC, Creditor-Appellee.
• Attorney: Brian R. Zeft (argued), Semrad & Associates, Chicago, IL, for Appellant. James M. Philbrick (argued), Mundelein, IL, for Appellee.
• Judge Panel: Before CUDAHY, WILLIAMS, and TINDER, Circuit Judges.
• Case Date: May 27, 2009
• Court: United States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 699

566 F.3d 699 (7th Cir. 2009)

Theodore A. THOMPSON, Debtor-Appellant,

v.

GENERAL MOTORS ACCEPTANCE CORPORATION, LLC, Creditor-Appellee.

No. 08-2077.

United States Court of Appeals, Seventh Circuit

May 27, 2009

Argued Feb. 10, 2009.

Page 700

Brian R. Zeft (argued), Semrad & Associates, Chicago, IL, for Appellant.

James M. Philbrick (argued), Mundelein, IL, for Appellee.

Before CUDAHY, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge.

This case involves an all too common occurrence that bankruptcy courts must deal with: a buyer defaults on his car payments, a secured creditor seizes the asset, the buyer files for Chapter 13 bankruptcy, and the big question that ensues is whether the creditor must return the car to the bankruptcy estate. In this case, we are asked to consider a procedural conflict between many bankruptcy courts within this circuit, and those in the sixth, eighth, ninth, and tenth circuits.

We must decide whether an asset that a secured creditor lawfully seizes pre-petition must be returned to the buyer's estate after he files for Chapter 13 bankruptcy, and, if so, whether the creditor must immediately return the asset even in the absence of a showing that the debtor can adequately protect the creditor's interest in the asset. In the United States Bankruptcy Court for the Northern District of Illinois, it has been an accepted standard procedure for a creditor to retain possession of a seized asset until the creditor subjectively determines that the debtor has shown the creditor that it can provide adequate protection of the creditor's interests. If a dispute ensues, it is the debtor's obligation to litigate the adequate protection issue in turnover proceedings before the bankruptcy court. In the sixth, eighth, ninth, and tenth circuits, the procedure is just the opposite. Upon the debtor filing for Chapter 13, the creditor must immediately return the asset to the bankruptcy estate, and, if the debtor and creditor cannot achieve accord on the issue of adequate protection, it is the creditor's obligation to file a motion before the bankruptcy court.

Here, a creditor refused to relinquish possession of an asset because it felt that the debtor could not adequately protect its interests. The debtor claimed that this refusal violated the Bankruptcy Code's stay provisions and moved for sanctions against the creditor. The bankruptcy court denied this motion. Because we find that a plain reading of the Bankruptcy Code's provisions, the Supreme Court's decision in United States v. Whiting Pools, Inc., 462 U.S. 198, 211, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983), and various practical considerations require that a creditor immediately return a seized asset in which a debtor has an equity interest to the debtor's estate upon his filing of Chapter 13 bankruptcy, we reverse.

I. BACKGROUND

On April 5, 2003, Debtor-Appellant Theodore Thompson entered into an installment

Page 701

contract with Creditor-Appellee General Motors Acceptance Corporation (" GMAC" ) for the purchase of a 2003 Chevy Impala. Thompson defaulted on his installment payments, and, on January 24, 2008, GMAC repossessed the vehicle.

On February 5, 2008, Thompson filed for Chapter 13 bankruptcy in the United States Bankruptcy Court for the Northern District of Illinois. Needing his car to commute to work, on February 6, 2008, Thompson requested that GMAC return the vehicle to his bankruptcy estate. When GMAC refused to return the vehicle to the estate absent what it deemed " adequate protection" of its interests, Thompson moved for sanctions pursuant to 11 U.S.C. § 362(k), claiming that GMAC willfully violated the automatic stay provision in 11 U.S.C. § 362(a)(3).

The bankruptcy court denied the motion for sanctions because it found the In re Nash, 228 B.R. 669 (Bankr.N.D.Ill.1999) and In re Spears, 223 B.R. 159 (Bankr.N.D.Ill.1998) decisions, which held that a creditor need not return seized property to a debtor's estate absent adequate protection of its interests, dispositive on the issue. Thompson sought direct appeal.

The bankruptcy court certified this case as one appropriate for direct appeal under 28 U.S.C. § 158(d)(2)(B)(i). On June 2, 2008, we found that it met the statutory requirements and accepted the appeal. As a result, we have jurisdiction under 28 U.S.C. § 158(d)(2)(A).¹

II. ANALYSIS

A. Introduction

We review a bankruptcy court's underlying factual findings for clear error and its conclusions of law de novo. Union Planters Bank, NA v. Connors, 283 F.3d 896, 899 (7th Cir.2002). A debtor is entitled to actual damages and attorneys' fees if he is " injured by any willful violation of a stay provided by this section" committed by a creditor. 11 U.S.C. § 362(k)(1). Under the Bankruptcy Code's stay provision, no creditor may commit " any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate" after a debtor has filed for bankruptcy. 11 U.S.C. § 362(a)(3) (emphasis added). In order to determine whether GMAC violated section 362(a)(3), we must resolve two questions. First, we must determine whether GMAC " exercised control" over property belonging to Thompson's bankruptcy estate simply because it refused to return it to the estate after Thompson filed for bankruptcy. If so, we must decide whether GMAC, or a like-situated creditor, is required to return the asset prior to the bankruptcy court establishing that the debtor can provide " adequate protection" of the creditor's interest in the asset.

B. GMAC " Exercised Control" Over Thompson's Vehicle

There is no debate that Thompson has an equitable interest in the Chevy, and, as such, it is property of his bankruptcy estate. See United States v. Whiting Pools, Inc., 462 U.S. 198, 203, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (" Section 541(a)(1) defines the ‘ estate’ as ‘ comprised of all the following property, wherever located: (1) ... all legal or equitable interests

Page 702

of the debtor in property as of the commencement of the case.’ Although these statutes could be read to limit the estate to those ‘ interests of the debtor in property’ at the time of the filing of the petition, we view them as a definition of what is included in the estate, rather than as a limitation." ). GMAC contends, however, that it did not " exercise control" over the Chevy within the meaning of 11 U.S.C. § 362(a)(3). Rather, GMAC argues that it passively held the asset and that further action, such as selling the car, is required to satisfy the Code's definition of " exercising control" over the asset. In support of this proposition, GMAC relies solely on In re Spears, 223 B.R. 159, 165 (Bankr.N.D.Ill.1998), which simply reiterates the rationale expressed in In re Young, 193 B.R. 620, 624 (Bankr.D.D.C.1996). These courts find that a creditor that retains possession of a lawfully seized vehicle does not take any action; instead, these courts reason that the creditor simply maintains the pre-bankruptcy status quo (creditor in possession of the asset), which is the purpose of the Code's automatic stay provision. They hold that the " Code restricts only obtaining possession of the property, rather than the passive act of simply continuing to possess it." In re Young, 193 B.R. at 624.

This interpretation is at odds with the plain meaning of " exercising control." Webster's Dictionary defines " control" as, among other things, " to exercise restraining or directing influence over" or " to have power over." Merriam-Webster's Collegiate Dictionary (11th Ed.2003). Holding onto an asset, refusing to return it, and otherwise prohibiting a debtor's beneficial use of an asset all fit within this definition, as well as within the commonsense meaning of the word.

Moreover, to hold that " exercising control" over an asset encompasses only selling or otherwise destroying the asset would not be logical given the central purpose of reorganization bankruptcy. The primary goal of reorganization bankruptcy is to group all of the debtor's property together in his estate such that he may rehabilitate his credit and pay off his debts; this necessarily extends to all property, even property lawfully seized pre-petition. See Whiting Pools, Inc., 462 U.S. at 203-04, 103 S.Ct. 2309; see also In re Yates, 332 B.R. 1, 5 (10th Cir. BAP 2005) (" As a practical matter, there is little difference between a creditor who obtains property of the estate before bankruptcy is filed, or after bankruptcy is filed. The ultimate result is the same-the estate will be deprived of possession of that property. This is precisely the result § 362 seeks to avoid." ). An asset actively used by a debtor serves a greater purpose to both the debtor and his creditors than an asset sitting idle on a creditor's lot.

Further, Congress's decision to amend section 362 evinces its intent to expand the prohibited conduct beyond mere possession. Prior to 1984, the Code's stay provision only prohibited any act to obtain possession of property belonging to a bankruptcy estate. Subsequently, Congress amended section 362(a)(3) when it passed the Bankruptcy Amendments and Federal Judgeship Act of 1984 to include as prohibited conduct " exercising control" over any asset belonging to the bankruptcy estate. Pub.L. No. 98-353, 1984 U.S.C.C.A.N. (98 Stat.) 371. Although Congress did not provide an explanation of that amendment, In re Young, 193 B.R. at 623, the mere fact that Congress expanded the provision to prohibit conduct above and beyond obtaining possession of an asset suggests that it intended to include conduct by creditors who seized an asset pre-petition. See In re Del Mission Ltd., 98 F.3d 1147, 1151 (9th Cir.1996);

Page 703

In re Javens, 107 F.3d 359, 368 (6th Cir.1997) . In fact, one court has gone as far as saying that " [w]ithholding possession of property from a bankruptcy estate is the...