Fifth Circuit Rules That Creditor Has Standing to Seek Sanctions for Automatic Stay Violation
The automatic stay triggered by the filing of a bankruptcy petition is one of the most important features of U.S. bankruptcy law. It provides debtors with a “breathing spell” from creditor collection efforts and protects creditors from piecemeal dismantling of the debtor’s assets by discouraging a “race to the courthouse.” The Bankruptcy Code also contains a mechanism—section 362(k)—to sanction parties who ignore the statutory injunction if their conduct amounts to a willful violation and another “individual” is injured as a consequence. However, courts disagree concerning precisely which stakeholders in a bankruptcy case (e.g., individual debtors, corporate debtors, trustees, and/or creditors) should have standing to invoke the remedies set forth in section 362(k). The Fifth Circuit Court of Appeals recently considered this question as a matter of first impression. In St. Paul Fire & Marine Ins. Co. v. Labuzan, the court ruled that a creditor has standing to seek an award of damages under section 362(k), provided that its claim is direct rather than derivative.
The Automatic Stay
Section 362(a) of the Bankruptcy Code provides that, upon the filing of a petition for relief under almost any chapter of the Bankruptcy Code (except for chapter 15, which applies to petitions for recognition in the U.S. of bankruptcy proceedings filed abroad), most but not all (there are now no fewer than 28 “exceptions” from the scope of the stay) actions against the debtor or its property to collect on a pre-bankruptcy debt are enjoined unless the “automatic stay” expires by operation of another provision in the statute or the court orders otherwise. Actions taken in violation of the stay are either void or voidable, depending upon the prevailing rule in the jurisdiction. Moreover, where a violation of the stay is “willful,” the Bankruptcy Code establishes a mechanism both to provide compensation for the offense and to punish the offender.
Specifically, section 362(k) of the Bankruptcy Code provides as follows:
(1) 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.
(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor [automatically terminating the stay with respect to certain pledged personal property in an individual debtor case if the debtor fails to perform prescribed acts], the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages.
Section 362(k) (formerly denominated section 362(h)) was added to the Bankruptcy Code as part of the “Consumer Credit Amendments” applying principally to consumer debtors in the Bankruptcy Amendments and Federal Judgeship Act of 1984. The section was re-designated as section 362(k)(1) in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, which also added section 362(k)(2) (among other things) to the Bankruptcy Code.
Once a creditor becomes aware of the filing of the bankruptcy petition, any intentional act in violation of the automatic stay is considered “willful.” However, under section 342(g)(2) (also added in 2005), a “monetary penalty” may not be imposed on a creditor under section 362(k) for violation of the stay unless the conduct that is the basis for the violation occurs after the creditor has received notice under section 342 of the filing of the bankruptcy case. Because actual damages are commonly perceived as being compensatory in nature, rather than a penalty, section 342(g)(2) arguably precludes only the recovery of punitive damages under section 362(k)(1).
Because section 362(k) refers to an “individual,” rather than the “trustee” or the “debtor,” the provision has generated a fair amount of controversy concerning exactly who (or what) has standing to invoke its remedies. The term “individual” is not defined in the Bankruptcy Code. Even so, it is used throughout the statute to refer to debtors and nondebtors (for example, in sections 522(b) (individual as debtor), 321(a)(1) (individual as trustee), and 1129(a)(5)(A)(i) (individual as “director, officer, or voting trustee of the [post-confirmation] debtor”)).
Some courts have held that the section 362(k) remedies are available only to individual debtors. For example, in its 1990 ruling in In re Chateaugay Corp., the Second Circuit Court of Appeals held that section 362(k) may not be used by corporate debtors and is limited to debtors who are “natural persons.” The First, Eighth, Ninth, and Eleventh Circuits have adopted this approach. Other courts, including the Third and Fourth Circuits, have permitted corporate debtors to take advantage of section 362(k). In its 1986 ruling in Budget Service Co. v. Better Homes of Virginia, Inc., the Fourth Circuit reasoned that
it seems unlikely that Congress meant to give a remedy only to individual debtors against those who willfully violate the automatic stay provisions of the Code as opposed to debtors which are corporations or other like entities . . . [because] [s]uch a narrow construction of the term would defeat much of the purpose of the section.
There is also a dispute regarding whether a bankruptcy trustee is an “individual” for purposes of section 362(k). For example, in its 1995 ruling in In re Pace, the Court of Appeals for the Ninth Circuit gave “individual” a narrow construction to exclude a trustee because, although a trustee is a natural person, the interest the trustee represents is that of the bankruptcy estate rather than an individual. By contrast, in In re Garofalo’s Finer Foods, Inc., an Illinois district court rejected the Ninth Circuit’s narrow reading of the term in favor of a broader definition designed to ensure that the bankruptcy estate can recover costs and attorneys’ fees incurred by the trustee in, among other things, recovering property in the possession of a third party.
Yet another area of controversy regarding the scope of section 362(k) concerns whether the term “individual” should be construed to include creditors, an issue that has been considered by relatively few courts to date. The Fifth Circuit recently addressed this question as a matter of first impression in St. Paul Fire & Marine.
St. Paul Fire & Marine
Theodore F. Labuzan and his wife, Deeann Labuzan (the “Labuzans”), held substantially all of the limited and general partnership interests of Contractor Technology, Ltd. (“CTL”), a construction company located in Texas. St. Paul Fire & Marine Insurance Company (“St. Paul”) furnished payment and performance bonds for several of CTL’s construction projects. In turn, the Labuzans agreed to indemnify St. Paul for any payment obligations it incurred under the bonds.
Financial troubles led CTL to file for chapter 11 protection on May 15, 2005, in Texas. Approximately one week after the filing, St. Paul contacted the owners of CTL’s ongoing construction projects and advised them that CTL was in bankruptcy and that if a project owner paid CTL and St. Paul was later obligated to pay on its bonds, St. Paul would reduce its liability to the project owner by any amount paid to CTL. Its revenue stream effectively shut off, CTL was forced to convert its chapter 11 case to a chapter 7 liquidation the following month.
St. Paul paid more than $32 million on the payment and performance bonds and sued the Labuzans in federal district court in November 2005 to enforce the indemnity agreement. Among the defenses interposed by the Labuzans was that St. Paul willfully violated the automatic stay by contacting CTL’s creditors (thereby preventing CTL from reorganizing) and that St. Paul should be held accountable under section 362(k). The Labuzans sought an award of nearly $60 million in compensatory damages sustained by both CTL and themselves as a consequence of St. Paul’s actions. In addition, both the Labuzans and CTL’s chapter 7 trustee separately sued St. Paul in the bankruptcy court under section 362(k) for willfully violating the automatic stay.
The Labuzans’ adversary proceeding and the St. Paul indemnity litigation were consolidated in the district court. Shortly afterward, the bankruptcy trustee and St. Paul reached a settlement in the adversary proceeding, whereby, among other things, St. Paul received $600,000 from the estate in exchange for reducing or waiving its remaining claims. The order approving the settlement also provided that the Labuzans would have an allowed claim against the bankruptcy estate in the amount of $200,000. In January 2008, the district court ruled that the Labuzans lacked standing to assert a claim under section 362(k) because the claim belonged to CTL. According to the court, because the Labazans were owners rather than creditors of CTL and the stay violation claim belonged to CTL, which had reached a settlement regarding the claim, the Labuzans could not independently assert a claim under section 362(k). The district court concluded that “on behalf of a debtor, creditors could seek equitable remedies for § 362(k) violations, but they could not recover damages.” The Labuzans appealed the ruling to the Fifth Circuit Court of Appeals.
The Fifth Circuit’s Ruling
Considering the issue as a matter of first impression, the Fifth Circuit ruled in favor of the Labuzans and vacated the ruling below. The court framed the question before it as “whether, pursuant to § 362(k), individuals other than the debtor, who claim injury from an automatic stay violation, have standing to pursue a claim for resulting damages.”
First, the court of appeals examined the criteria for “standing” in federal courts (as well as under section 362(k)), explaining that the Labuzans must satisfy both “constitutional and prudential requirements.” Constitutional standing, the court noted, can be established only if a plaintiff can demonstrate: (i) an injury in fact; (ii) that is fairly traceable to the actions of the defendant; and (iii) that will likely be redressed by a favorable decision. The Fifth Circuit concluded that the Labuzans easily satisfied this test because, among other things, the injuries they suffered as a consequence of CTL’s failure to reorganize “can fairly be traced to St. Paul’s claimed violation of the automatic stay by contacting the project owners and instructing them about the consequences of payments to CTL.”
The judicially created concept of prudential standing, the court of appeals explained, adds an additional level of scrutiny, examining whether: (i) the plaintiff’s grievance falls within the zone of interests protected by a statute; (ii) the complaint raises abstract questions or a generalized grievance more properly addressed by the legislature; and (iii) the plaintiff is asserting his legal rights and interests or those of third parties. However, because Congress can modify or even abrogate prudential standing requirements by statute, the Fifth Circuit examined the language of section 362(k) to divine whether lawmakers “expressed an intent to negate the background of prudential standing doctrine” in connection with claims based upon willful violations of the automatic stay.
The court found that no such intent is expressed unequivocally in section 362(k), principally because the term “individual” is not defined in the Bankruptcy Code. Confronted with the ambiguity of the statute on this point, the Fifth Circuit examined its legislative history in an effort to determine lawmakers’ intent, as well as the rulings of other courts. Examining the purpose of section 362 in general, the court concluded that the automatic stay was designed to protect both debtors and creditors. The stay’s expansive role in benefiting parties other than the debtor and, in the court’s view, the weight of well-reasoned precedent in other jurisdictions strongly suggest that Congress intended to enable pre-petition creditors to assert automatic stay violations. According to the court, the validity of this conclusion is bolstered by section 1109(b) of the Bankruptcy Code, which expressly confers standing to be heard on any issue in a chapter 11 case upon a large universe of stakeholders, including creditors:
When 11 U.S.C. § 1109(b) is read in conjunction with § 362(k), it becomes clear that Congress did not enact § 362(k) solely for the benefit of debtors. Accordingly, based on § 362(k)’s plain language, the above-discussed congressional purpose of § 362(k) to provide both debtor and creditor protection, and the weight of authority finding creditor-standing, we hold debtors and creditors are entities whose grievances fall “within the zone of interests” protected by § 362(k).
Moreover, because the automatic stay was designed to protect creditor as well as debtor interests, the Fifth Circuit found that the Labuzans had satisfied the second prudential standing concern by establishing that their claim did not “raise abstract questions or a generalized grievance more properly addressed by the legislative branch.”
“A less obviously satisfied prudential concern,” the Fifth Circuit remarked, is “whether the Labuzans are asserting claims that belong to CTL’s bankruptcy estate.” According to the court, even assuming that a bankruptcy trustee has the right to assert a claim under section 362(k) on behalf of the estate, the trustee’s standing would not preclude a pre-petition creditor from asserting a section 362(k) claim for damages, so long as the injury suffered is personal rather than derivative. Congress, the court explained, “could have easily included § 362(k) claims under the ‘property of the estate’ umbrella of § 541” yet did not do so, nor did it substitute “trustee” for “individual” in section 362(k). By alleging that they were directly injured by St. Paul’s conduct, the court ruled, the Labuzans demonstrated that they were asserting their own legal rights rather than those of the estate:
Therefore, based on § 362(k)’s plain language, its legislative history, the Bankruptcy Code’s purposes, and the weight of judicial authority, we hold: pursuant to § 362(k), the Labuzans, as pre-petition creditors of CTL, have standing to assert a claim against St. Paul. Accordingly, to the extent the Labuzans’ claims are based on their status as owners/equity holders of CTL, § 362(k) cannot be invoked.
Finally, the Fifth Circuit rejected St. Paul’s argument that only secured creditors may challenge automatic stay violations, observing that “[n]either the statute, its legislative history, nor the above-cited authority stands for this proposition.”
Outlook
The Fifth Circuit’s reasoning in St. Paul Fire & Marine is consistent with the broad purpose of the automatic stay in protecting both debtors and creditors. Moreover, in distinguishing between direct claims and derivative claims, the decision stakes out a position that should mitigate the potential for proliferation of requests for stay violation sanctions under section 362(k) by parties other than the debtor or a trustee. On the other hand, bankruptcy courts may increasingly be called upon to distinguish between direct and derivative claims in this context.
The Fifth Circuit’s reliance on section 1109(b) of the Bankruptcy Code in concluding that Congress intended the term “individual” in section 362(k) to include a creditor is somewhat curious. Because section 1109(b) applies only in chapter 11 cases, we are left to speculate as to whether, according to the Fifth Circuit’s analysis, lawmakers may have intended to confer standing under section 362(k) on creditors in chapter 11 cases, but not in cases under other chapters of the Bankruptcy Code. In any case, the ruling does not address this issue.
Other recent developments concerning the availability of section 362(k) to redress harm caused by willful violations of the automatic stay are more mixed. In Sternberg v. Johnston, the Ninth Circuit Court of Appeals ruled in October 2009 that, although an award of damages under section 362(k)(1) does include attorneys’ fees incurred in connection with enforcing the automatic stay, it does not include attorneys’ fees incurred in “prosecuting a damages action” under the provision because, among other things, the “[s]tay is a shield, not a sword.” The ruling creates a split in the circuits on the issue (the Fifth Circuit having ruled to the contrary in 2008 in Young v. Repine (In re Repine)), which may ultimately invite consideration of the issue by the U.S. Supreme Court.
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St. Paul Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533 (5th Cir. 2009).
In re Chateaugay Corp., 920 F.2d 183 (2d Cir. 1990).
In re Spookyworld, Inc., 346 F.3d 1 (1st Cir. 2003).
In re Just Brakes Corp. Sys., 108 F.3d 881 (8th Cir. 1997).
In re Jove Eng’g, Inc., 92 F.3d 1539 (11th Cir. 1996).
Goodman v. Knight, 991 F.2d 613 (9th Cir. 1993).
Budget Service Co. v. Better Homes of Virginia, Inc., 804 F.2d 289 (4th Cir. 1986).
In re Atlantic Business and Community Corp., 901 F.2d 325 (3d Cir. 1990).
In re Pace, 67 F.3d 187 (9th Cir. 1995).
In re Garofalo’s Finer Foods, Inc., 186 B.R. 414 (E.D. Ill. 1995).
In re Concretize, Inc., 2009 WL 3929890 (Bankr. D. Or. Nov. 18, 2009).
Sternberg v. Johnston, 2009 WL 3381162 (9th Cir. Oct. 22, 2009).
Young v. Repine (In re Repine), 536 F.3d 512 (5th Cir. 2008).
