In re Bradford
| Decision Date | 30 March 1990 |
| Docket Number | Bankruptcy No. 88-03226-7.,BAP No. ID 89-1499-AsRP |
| Citation | 112 BR 347 |
| Parties | In re Barry Rhett BRADFORD & Michelle Waller, Debtors. David W. AMICK, Appellant, v. Barry Rhett BRADFORD & Michelle Anjeanette Waller, Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
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Fred J. Frahm, Allen R. Derr & Associates, Boise, Idaho, for appellants.
Rodney T. Buttars, Boise, Idaho, for appellees.
Before ASHLAND, RUSSELL and PERRIS, Bankruptcy Judges.
David Amick appeals from the bankruptcy court's assessment of damages against Amick based upon the court's finding that Amick knowingly and willingly violated the automatic stay. We affirm.
In October, 1988 Michelle Waller worked as a subcontractor for David Amick Construction, Inc. She testified that on October 26, 1988 she met with David Amick to discuss borrowing $265 from him in order to file bankruptcy. She testified that after discussing bankruptcy, Amick told her to meet him in his office the next morning and he would write her a check. She testified that Amick tried to talk her out of filing bankruptcy for approximately 45 minutes, but that he finally gave her the check for $265. She testified that she gave him the title to her car as security for the loan. According to her testimony, she then told Amick that she needed the morning off so that she could file her petition and that he was aware that she had filed bankruptcy. At the time she received the money from Amick on October 27, 1988, Waller had already signed her bankruptcy petitions and schedules. She filed her Chapter 7 petition about 30 minutes after leaving Amick's office.
Amick on the other hand testified that in October, 1988 Waller wanted to borrow some money from him to pay bills but that he did not really want to loan her any money. He testified that she told him how much money she owed and that they discussed bankruptcy, but that he personally was against bankruptcy and advised her strongly against filing. He testified that he and Waller never entered into a loan agreement and that on October 27, 1988 he agreed instead to buy her car for $265. Although she had talked about going to the attorney with the money, he had hoped he was successful in talking her out of filing bankruptcy. He testified that she did not take time off work nor advise him that she would have to take time off work to go to court or anything like that. He testified that from the time he gave her the check for $265, she did not specifically tell him she filed bankruptcy. She just talked about the fact that she owed her attorney money and that she went to see her attorney. He testified that he did not think that he and Waller discussed bankruptcy after that.
According to Amick, he was to get the car from Waller the day after he wrote the check to her, but that when they met Waller was upset and wanted to buy the car back. He felt sorry for her so they worked out an agreement where he would loan her the $265. She was to make weekly payments of $50 to pay back the $265 plus interest. Waller denied that she went to Amick the day after she received the check and asked him to sell back the car. She testified that the transaction was a loan from the outset.
After receiving the $265 from Amick, Waller and her husband Barry Bradford filed a petition under Chapter 7 on October 27, 1988. Amick was not listed on the schedules and did not receive notice of the filing of the petition from the clerk's office. Waller testified that she did not schedule her debt to Amick because she wanted to pay him back, and she did not want to "burn" him.
Waller made the first two $50 payments in cash and then two payments were taken directly out of her paycheck. She stopped working for Amick at the end of November, at which time she had paid him $200. She testified that when she quit Amick's company, she told the bookkeeper that she would try and get Amick paid off the following week, and if not, with her first check from her new employer. The fifth payment was not paid when it was due. Amick testified that Waller did not have a phone and that he did not contact her concerning the default. Amick repossessed Waller's 1978 Dodge Aspen on December 6, 1988.
Waller testified that after Amick repossessed the car, she went to her new employer and borrowed the remaining $65 that she owed. She called Amick and told him that she had his money and asked him if she could get her car back and he said it was too late. Amick testified that Waller called him on the night the car was repossessed and that she wanted to know if she could have the car back. He told her that there were going to be additional expenses due because of the repossession and she said that those additional costs were not her expense. He testified that he told her he would think about what he was going to do about the car but that he was not going to do anything at that time of night.
Amick testified that Waller called him twice the next day about getting her car back. Again they discussed the repossession costs and she said that the additional $125 was not her expense. He then basically told her that he did not feel there was any purpose discussing it any more. According to Amick, Waller did not mention the bankruptcy in this discussion.
Amick testified that Waller's attorney Rod Buttars first contacted him on or about December 9, 1988, and that they had a subsequent telephone conversation on December 13, 1988. Amick testified that Buttars wanted to know what Amick wanted in exchange for the car. When asked by Buttars whether Buttars had explained to Amick in the December 13, 1988 phone conversation that Waller had filed bankruptcy and that the $265 was used for the filing as originally agreed to between Amick and Waller, Amick answered that as he recalled that was not correct. He denied discussing bankruptcy in that conversation.
Amick testified that he told Buttars that he would like to think over their conversation and that Buttars was going to get back to him. He testified that Buttars did not contact him, and that after not hearing from anyone for about a month, he sold the car.
Amick sold the car for $305 on January 6, 1989. Waller filed a § 362(h) motion for contempt and for return of property of the estate on January 9, 1989. She sought a return of the car, actual damages, costs, and attorney's fees, and punitive damages of $1,000, on the grounds that Amick knowingly and willfully violated the automatic stay.
The court held a hearing on the contempt motion on February 6, 1989. After hearing the testimony of Waller, Amick, and Mr. Cross, the individual who repossessed Waller's car for Amick, the court found that under either Waller's loan theory or Amick's resale theory, the transaction was a security transaction. The court made a further finding that certainly as of December 13, 1988 Amick was aware of the bankruptcy proceedings as a result of his conversation with Buttars. The court noted that although the evidence regarding Amick's phone conversation came out only by virtue of Buttar's cross examination of Amick, that cross examination was evidence which gave the judge an inference that enabled him to make the finding. When questioned by Amick's attorney Mr Frahm about whether Frahm should have had an opportunity to examine Buttars on that issue, the court noted that Frahm had the right to examine Buttars before Frahm rested his case. The judge noted that on the damage issue, his intent would be to make the parties whole. The matter was taken under advisement.
The judge filed findings of fact and conclusions of law on March 7, 1989. He found that Amick violated the automatic stay when he sold the car sometime after January 1, 1988. It appears that this finding contains a typographical error concerning this date. The correct date after which the car was sold is January 1, 1989. He also found that Amick knew of the filing of the bankruptcy and was held to the terms of the automatic stay as of at the very latest, December 13, 1987. Again, it appears that an error concerning this date is contained in this finding. The correct date is December 13, 1988. Due to the knowing and willful violation of the stay, the judge assessed actual damages of $838.95, the amount Waller had initially paid for the car, against Amick. In addition, the judge assessed damages of $350.00 as a reasonable attorney's fee to prosecute the contempt motion. Amick appeals from the order incorporating these findings and conclusions.
Factual findings by the bankruptcy court are reviewed for clear error. In re Bloom, 875 F.2d 224, 227 (9th Cir.1989). A finding of fact is clearly erroneous when after reviewing the evidence, we are left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), cited in Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); In re Contractor's Equipment Supply Co., 861 F.2d 241, 243 (9th Cir.1988). A bankruptcy court's award of attorney's fees will not be disturbed absent an abuse of discretion or an erroneous application of the law. In re International Environmental Dynamics, Inc., 718 F.2d 322, 326 (9th Cir.1983). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. Mission Indians v. American Management & Amusement, Inc., 824 F.2d 710, 724 (9th Cir.1987); In re Tong Seae (U.S.A.), Inc., 81 B.R. 593, 597 (9th Cir.1988).
Amick contends that the court's factual finding that Amick knowingly and willfully violated the automatic stay was clearly erroneous. Section...
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