United States District Court, E.D. Virginia
SKILLFORCE, INC. and PATRICIA E. TICHENOR, Appellants,
DEBORAH K. HAFER, Appellee
For Deborah K. Hafer, Debtor: Richard G. Hall, LEAD ATTORNEY, Annandale, VA.
For Skillforce Inc, Appellant: David Ludwig, LEAD ATTORNEY, Dunlap Weaver PLLC, Leesburg, VA.
For Patricia E. Tichenor, Esquire, Appellant: Sarah Anne Bucovetsky, LEAD ATTORNEY, Sands Anderson PC, McLean, VA.
For Deborah K. Hafer, Appellee: Richard G. Hall, LEAD ATTORNEY, Annandale, VA; Thomas Temple Andrews, Jr., LEAD ATTORNEY, Tommy Andrews Jr. PC, Alexandria, VA.
T. S. Ellis, III, United States District Judge.
At issue in this bankruptcy appeal is whether appellants Skillforce, Inc. (" Skillforce" ) and Patricia E. Tichenor (" Ms. Tichenor" ) willfully violated the 11 U.S.C. § 362(a)(1) automatic stay by failing to withdraw post-judgment debtor's interrogatories, or to prevent a hearing on the interrogatories, after the Loudon County General District Court (" State Court" ) Judge, when advised of the bankruptcy, first correctly stayed the interrogatories, but then ordered the parties to appear for a subsequent status hearing regarding the interrogatories.
For the reasons that follow, the Bankruptcy Court correctly concluded that appellants willfully violated the automatic stay, but a remand is required for the Bankruptcy Court to make specific findings on damages.
As the Bankruptcy Court's factual findings are reviewed for clear error, and the parties do not contest those findings, they are adopted here in full, as follows:
1) On October 19, 2012, the General District Court of Loudoun County, Virginia, entered an in personam judgment against the Debtor, Ms. Hafer, in favor of Skillforce, in the amount of $12,997.11, consisting of $5,203.19 in principal, attorney's fees of $3,292.28, costs of $68, and prejudgment interest. The judgment arose out of Ms. Hafer's guaranty of the debts of Hafer Construction, Inc., to Skillforce.
2) On December 27, 2012, Ms. Tichenor, as counsel for Skillforce, submitted a request for a Summons to Answer Debtor's Interrogatories, directed to Ms. Hafer as the judgment debtor. The Clerk issued the Summons on December 28th, returnable to February 6, 2013.
3) In connection therewith, Ms. Tichenor filed a request for a Subpoena Duces Tecum, to compel Ms. Hafer to
bring with her documents related to her assets and liabilities. The Subpoena was issued, commanding Ms. Hafer to bring with her to the debtor's interrogatories hearing the documents identified in the attachment to the Subpoena.
4) Ms. Hafer filed a Voluntary Petition under Chapter 7 with this Court at 3:53 a.m. on the morning of the debtor's interrogatories hearing, February 6th.
5) Ms. Hafer listed Skillforce as a creditor in her Schedules, care of Ms. Tichenor at Ms. Tichenor's office address in Leesburg. Skillforce is listed in the Clerk's matrix of mailing addresses for creditors, also care of Ms. Tichenor at her address in Leesburg. Skillforce also filed a proof of claim in the case, on April 2, 2013.
6) Ms. Hafer brought a copy of the Notice of Bankruptcy Case Filing with her to the debtor's interrogatories hearing. She and Ms. Tichenor had a brief encounter before the Judge took the bench, in which Ms. Tichenor described the process of debtor's interrogatories, explaining that the Judge would swear Ms. Hafer in, and they would then go to a conference room, where the examination would be conducted. Ms. Hafer did not present Ms. Tichenor with the Notice of Bankruptcy Filing during this brief, pre-hearing encounter.
7) When the Judge took the bench, Ms. Hafer presented the Judge with her Notice of Bankruptcy Filing.
8) What occurred next at the hearing is the subject of some conflict in the testimony. Ms. Hafer testified that Ms. Tichenor advised the Judge that she had her court reporter present, and that she was prepared to proceed with the debtor's interrogatories, notwithstanding the bankruptcy filing. Ms. Hafer further testified that the Judge refused to allow Ms. Tichenor to proceed with the debtor's interrogatories, at which point, Ms. Tichenor requested that the court continue the debtor's interrogatories hearing for status.
9) Ms. Tichenor, on the other hand, testified that she did not seek to proceed with the debtor's interrogatories hearing that day. She further testified that she did not request that the court continue the matter for a status hearing; rather, she testified that the court continued the matter on its own.
10) The Court also heard the testimony of Ms. McManus, who is the court reporter engaged by Ms. Tichenor for purposes of the debtor's interrogatories hearing. The Court found Ms. McManus to be pleasant, forthright, and highly credible. Ms. McManus was in the courtroom when the Judge called the case on February 6, 2013. Ms. McManus testified that, when presented with the Notice of Bankruptcy Filing, the Court asked Ms. Tichenor whether she was aware of Ms. Hafer's bankruptcy filing. Ms. Tichenor said that she was not aware of the filing. Ms. McManus testified that it was clear that the Judge was not going to proceed with the debtor's interrogatories hearing on that date. Ms. McManus further testified that Ms. Tichenor did not seek to proceed with the debtor's interrogatories hearing, that Ms. Tichenor did not request that the matter be continued for status, and that the Judge continued the matter for status without her requesting him to do so. This Court accepts Ms. McManus's testimony and finds that: (a) Ms. Tichenor did not seek to proceed with the debtor's interrogatories
hearing on February 6th; and (b) the Judge continued the debtor's interrogatories hearing for status, to May 1, 2013, without Ms. Tichenor requesting that he do so.
11) Ms. Hafer testified that she was " appalled" and " shocked" by the continuance, and that she felt " bullied" into having to appear a second time in court. She testified that she felt compelled to appear at the May 1 status hearing, for fear of ...