Easley et al v. Collection Service Of Nevada

Filing 27

ORDER. THE COURT ORDERS that 23 Appellant Charles B. Easley, Sr.'s Motion for Attorney's Fees is DENIED. Signed by Judge Lloyd D. George on 6/29/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES B. EASLEY, SR., and
PATRICIA A. EASLEY,

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Case No. 2:15-cv-00395-LDG
Appellants,

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ORDER
v.

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COLLECTION SERVICE OF NEVADA,
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Appellee.

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Appellants, Charles B. Easley, Sr., and Patricia A. Easley, move to recover

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attorney’s fees under 11USC §362(k) (ECF No. 23). Appellee, Collection Service of

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Nevada, opposes the motion (ECF No. 24). The court denies the motion for attorney’s fees

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because Schwartz-Tallard prohibits a recovery from appellants.

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This court has jurisdiction pursuant to 28 U.S.C. §158 (a).

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Initially, the creditor, Collection Service of Nevada, violated the stay. The debtor,

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Easley, brought suit to correct the stay violation. The bankruptcy court awarded the debtor

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attorney’s fees and costs incurred to enforce the stay. However, pursuant to the Ninth

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Circuit’s ruling in Sternberg, the bankruptcy court did not award the debtor attorney’s fees

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and costs incurred to pursue damages for violation of the stay. Sternberg v. Johnson, 595

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F.3d 937 (9th Cir. 2010). The debtor appealed. W hile the appeal was pending, the Ninth

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Circuit ruled that a debtor could also recover fees and costs incurred to pursue damages

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when a creditor violates a stay. In re Schwartz-Tallard, 803 F.3d 1095, 1101 (9th Cir.

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2015). This court then affirmed the bankruptcy court’s decision for fees correcting the stay

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violation and for damages caused by the stay violation. The Court, pursuant to Schwartz-

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Tallard, reversed the decision on the fees and costs in pursuing damages and remanded

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the case back to the bankruptcy court for further consideration. The debtor then filed this

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motion seeking attorney’s fees and costs for appellate work.

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Pursuant to Local Rule 7-2(d), the failure of a moving party to file points and

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authorities in support of the motion constitutes a consent to the denial of a motion. Here,

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the court cannot determine which fees appellant is seeking because the appellant did not

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properly segregate their fees for the relief they have received. Without appropriate

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apportioned fees to their corresponding appellant issue the court must deny this motion as

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it lacks points and authorities in support of its motion.

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Even if the fees were apportioned correctly, the appellant could only be seeking to

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recover fees in two instances. The first is for appellant fees for additional damages caused

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by the stay violation. The appellant cannot recover their fees because they lost that issue

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on appeal.

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The second is appellant fees for fees and costs incurred to pursue damages caused

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by the stay violation. The appellant cannot recover their fees under 11 USC §362(k).

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Pursuant to 11 USC §362(k), after a violation of stay the injured party shall recover actual

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damages, including costs and attorney’s fees. The Ninth Circuit clarified that a party is

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entitled to an award of attorney’s fees if they succeed in correcting the stay and then are

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successful in defending the judgment on appeal. Schwartz-Tallard, at 1101. Here, the

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debtor is prosecuting, not defending, the on appeal. Therefore, the appellant cannot

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recover their fees under 11USC §362(k).
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Accordingly,

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THE COURT ORDERS that Appellant Charles B. Easley, Sr.’s Motion for Attorney’s

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Fees is DENIED.
29th
DATED this ______ day of June, 2017.

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Lloyd D. George
United States District Judge

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