PBCBA BAR BULLETINS pbcba_bulletin_feb 2018 | Page 10

BANKRUPTCY C o r n e r Debtors are Entitled To Award of Appellate Attorney’s Fees and Costs from Willful Stay Violation JASON S. RIGOLI The Eleventh Circuit recently issued a binding opinion awarding appellate attorney’s fees and costs for defending appeals initiated by counsel who willfully violated the automatic stay. Mantiplay v. Horne (In re Horne), -- F.3d --, 2017 WL 6002509 (11th Cir. Dec. 5, 2017). and enlarging the injuries beyond the immediate injury. Under this interpretation the attorney’s fees and costs are not limited to those fees incurred in stopping the stay violation but all attorney’s fees and costs arising from the stay violation. Horne, 2017 WL 6002509 at *3. The Eleventh Circuit then analyzed the only other opinion Facts of the Case addressing this issue from the Ninth Circuit, which reached the same conclusion The debtors filed for bankruptcy on as the Eleventh Circuit. Id. at *4 (citing In January 10, 2011 and received a discharge re Schwartz-Tallard, 803 F.3d 1095 (9th Cir. on May 10, 2011. Subsequent to the filing 2015) (en banc). of the bankruptcy case, an attorney, Mary Beth Mantiplay (“Mantiplay”), filed suit on behalf of her clients in states court. Manitplay ignored multiple requests to voluntarily dismiss the state court * This article submitted by Jason S. Rigoli, Esq., Furr proceeding and maintained the suit until it Cohen, 2255 Glades Road, Suite 337W, Boca Raton, FL was involuntarily dismissed in November 33431, [email protected]. 2011. Debtors then instituted a proceeding in bankruptcy Court seeking damages under § 362(k) of the Bankruptcy Code for a willful violation of the automatic stay. The bankruptcy court ruled in favor of the debtors and awarded damages. Manitplay appealed, and the award was affirmed. Mantiplay then filed motions for recusal of the bankruptcy judge in the bankruptcy court and district court. The recusal motions were denied. Manitplay appealed multiple orders to the Eleventh Circuit, which affirmed the orders. Mantiplay also submitted a petition of certiorari to the Supreme Court, which required the Debtors to file a response. The petition was denied. Debtors then fees for the appeal of these appeal, including the petition for certiorari of the recusal orders. Basis for Awarding Fees Section 362(k)(1) states: “Except as provided in paragraph (2), 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.” (emphasis added). The Eleventh Circuit interpreted the word “including” to be broadening LEADING PRACTICE MANAGEMENT SOFTWARE 10% D