10th Circuit Holds that Dismissal of Bankruptcy Does Not Divest Court of Authority to Determine Whether Post-Petition Repossession Violated Automatic Stay

In In re: Johnson, __ F.3d __, 2009 WL 2386142 (10th Cir. 2009), the Court of Appeals for the Tenth Circuit addressed whether the dismissal of a debtor’s bankruptcy divested the Bankruptcy Court of the power to determine whether the creditor violated the automatic stay for a post-petition repossession of the debtor’s vehicle.  The Court of Appeals held that the Bankruptcy Court retains such jurisdiction, explaining:

The great weight of case authority supports our conclusion that a § 362(k)(1) proceeding remains viable after termination of the underlying bankruptcy case. See, e.g., Price, 947 F.2d at 831-32; Javens v. City of Hazel Park (In re Javens), 107 F.3d 359, 364 n.2 (6th Cir.1997) (“An action under § 362[ (k)(1) ] for damages for willful violation of an automatic stay survives dismissal of the case in bankruptcy.”); Jones v. Boston Gas Co. d/b/a Keyspan Energy Delivery New England (In re Jones), 369 B.R. 745, 748 (B.A.P. 1st Cir.2007) (collecting cases); In re D’Alfonso, 211 B.R. at 513; In re Davis, 177 B.R. at 911-12; Skaggs v. Fifth Third Bank of N. Ky. (In re Skaggs), 183 B.R. 129, 131 (Bankr.E.D.Ky.1995). But see Brown v. GMAC Mortgage Corp. (In re Brown), 300 B.R. 871, 876-77 (D.Md.2003).

See also  In re Casamont Investors, Ltd., 196 B.R. 517, 521 (9^th Cir. BAP 1996).