Solange
LoanSafe Member
30/01/2010
Here are some recent articles showing an increased support from the judiciary branch.
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Here are some recent articles showing an increased support from the judiciary branch.
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</o>Conclusion<o></o>
Debtors ranging from large financial services companies to consumers who have reached the end of their financial ropes walk through the doors of bankruptcy courts each day. With a full plate of issues before them on matters as diverse as tax liability and curing arrearages on home mortgages, bankruptcy judges play a crucial role in both the commercial and consumer realms of our economy. Given these broad responsibilities, bankruptcy courts should fully exercise their powers as federal courts.
United States Attorneys, United States Trustees, and other prominent litigants in the federal bankruptcy system should ask bankruptcy courts in appropriate instances to utilize the power of contempt to effect the purposes of the Bankruptcy Code and to do justice. Federal government lawyers, in particular, have a responsibility to assist the court in bringing and prosecuting contempt actions. As just described, the use of the contempt powers can inure to the benefit of the courts, as well as of the vast majority of diligent and honest litigants who rely upon the bankruptcy court to provide a "fresh start" for debtors and an efficient means for repaying creditors.
<o></o>Contempt and Violations of the Automatic Stay<o></o>
Lawyers.com<sup>sm</sup> <o></o>
The Bankruptcy Code contains a specific legal action against a creditor who causes injury to an individual by a willful violation of the automatic stay (11 U.S.C. § 362). The automatic stay is a court order that is immediately imposed when the debtor files a bankruptcy petition, and it prohibits anyone from trying to obtain the debtor's property. If someone violates the stay, bankruptcy code provides for actual damages, costs and attorney's fees as well as punitive damages, if appropriate (11 U.S.C. § 362(k)(1)). <o></o>
The automatic stay is a court order, and if creditors violate it, they can be held in contempt of the court that issued the order. Civil contempt is a willful disregard of a court order. Punishment for civil contempt may be a fine or imprisonment, the goal of which is to get the violator to comply with the order. It is quite clear that a violation of the stay's prohibitions constitutes contempt of court. The legislative history of bankruptcy code (§ 362(k)) makes it clear that Congress was granting an additional remedy to debtors beyond those already in existence. This includes the bankruptcy court's power to hold a creditor in contempt. However, if it is unclear whether a certain kind of act is prohibited by the stay, the debtor will not be able to obtain relief by either an action for damages or an action for contempt.<o></o>
Warning<o></o>
Contempt sanctions generally can be imposed regardless of whether the violation is in willful disregard of the stay. So long as the party who was ordered not to do something, also known as the enjoined party, has notice of the stay, it is responsible for the consequences. The duty is on creditors, especially those regularly involved with bankruptcy cases, to establish procedures that ensure compliance with the stay, in order to allow for bankruptcy cases to proceed smoothly. Indeed, if either a creditor or its collection agent has knowledge of the case, the creditor may be held in contempt for any collection attempts which are made by its collection agent after the bankruptcy petition was filed. Also, reliance in good faith on the advice of an attorney that collection actions are not barred by the stay is no defense. "Computer error" is not a valid defense, either.<o></o>
Sanctions<o></o>
The sanctions or penalties that may be imposed for contempt are similar to those available under bankruptcy code (§ 362(k)) except that punitive damages are not available. They may include fines and attorneys' fees, in appropriate cases, against both the person who violated the stay order and any attorneys who advised such violations. Many courts have held that damages for contempt may also be awarded. But, in any event, the bankruptcy court has exclusive authority over sanctions for violations of the automatic stay itself, and any contempt actions for violating the stay must be filed in the bankruptcy court.
<o></o>Re: RE: American Home, Option One, Wells Fargo<o></o>
Wells Fargo Sanctioned by Bankruptcy Court for Subprime Lending Role<o></o>
May 13, 2008 | Print this page | Email this page <o></o>
A federal bankruptcy judge has ordered Wells Fargo to pay $250,000 in sanctions for its role as a trustee for a pooled subprime mortgage trust. In re: Nosek, Case No. 02-46025-JBR (Bankr. D. Mass.).
The matter arose out of a debtor's Chapter 13 petition listing a secured subprime mortgage note purportedly held by Ameriquest Mortgage Company. Throughout the course of the litigation, Ameriquest and its attorneys repeatedly referred to Ameriquest as the "holder" of the securitized note. In reality, however, the true "holder" of the note was Wells Fargo, the trustee for a trust which held an entire pool of subprime mortgages, including the debtor's. The loan was originated by Ameriquest but subsequently assigned to the trust, which eventually issued mortgage-backed securities. Pursuant to a pooling and servicing agreement, Ameriquest retained the obligation to service the underlying loans held as collateral for the securities while the loans themselves were held in trust. Despite this, it was Ameriquest that sought to assert creditor's rights with respect to the mortgage before the bankruptcy court.
The bankruptcy court ordered Rule 9011 sanctions not only against Ameriquest for misrepresenting its creditor status as a "holder" of the mortgage, but also against Wells Fargo for failing to correct the misrepresentation. In doing so, the court flatly rejected the arguments of both Ameriquest and Wells Fargo that "[n]otes and mortgages are bought and sold so frequently that it is difficult to know at any given moment who holds the note and mortgage." In a harshly worded opinion, the court chastised Wells Fargo for turning a "blind eye" towards Ameriquest's conduct, stating that if Wells Fargo had "shown even a modicum of oversight or review of Ameriquest's behavior, it should have been able to correct the misrepresentations." <o></o>
The court went on to comment that "[t]he link between lender and borrower in the current residential mortgage industry is a multilayered, tightly - if not hopelessly - entangled 'assembly line,' the purpose of which seems to be the avoidance of responsibility." In the court's words, "nder the guise of creating a complex structure to suit their needs, Wells Fargo and Ameriquest have attempted to jettison the obligation to be forthright and diligent." In response, the court would "not allow Wells Fargo or any other mortgagee to shirk responsibility by pointing fingers at their servicers" such as Ameriquest, further noting that "because Wells Fargo continues as a participant in the mortgage industry, the Court is cognizant that the sanction must be sufficient to deter its cavalier behavior in the future."
For a full copy of the order, please click here.
Wells Fargo has since filed an appeal of the bankruptcy court's sanctions order.