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
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