دانلود رایگان مقاله انگلیسی پیشرفت های اخیر در قانون ورشکستگی - 2018

1.3.a

Debtor may recover attorneys’ fees for litigating a damages claim for stay violation, including fees on appeal. The debtor moved for damages for a creditor’s stay violation. The bankruptcy court granted the motion, including attorneys’ fees. The creditor appealed to the district court and the court of appeals, which both affirmed. The creditor also sought the bankruptcy judge’s recusal, which the court denied; the appellate courts affirmed, and the Supreme Court denied certiorari. The district court awarded the debtor fees for defending all the appeals. Section 362(k) provides “an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys’ fees.” The mandatory language overrides the American Rule, under which each party pays its own fees. The use of “including” broadens the scope of “actual damages” beyond the immediate injury resulting from the stay violation. Fee-shifting statutes such as section 362(k) entitle the party to fees not only at the trial level but also on appeal. Therefore, the debtor is entitled to all fees for litigating the damages claim and the subsequent appeals, including on the recusal motion, which was related to the stay violation litigation. Mantiply v. Horne (In re Horne), 876 F.3d 1076 (11th Cir. 2017).