job is to follow the text even if doing so will supposedly better undercut a basic objective of the statute the relevant inquiry here is whether the attorney's fees it is constitute actual damages period the statute does not define actual damages so we have to go to the basic meaning of what actual damages are and under hornbook law actual damages are to compensate for the injury to compensate for the injury not to pursue a claim for damages the this remanded the appeal of this case to the district court for consideration of the issues of the title mint and the amount of attorney's fees and expenses if any to be awarded the district court did not consider the issue of entitlement and the question of actual damages under the statute the district court said that its hands were tied by the law of the case that this court had already decided as a matter of law that attorneys fees for the appeal or compensable for an injury as actual damages i don't see that anywhere in the record that this court had statute says that the recovery of actual damages it could in attorney's fees provides for the recovery of actual damages occluding attorneys fees not actual damages plus attorney fees and i think what's occurred in the case law and in the district courts reasoning is that even though the plane for example when you're talking about violation of a stay what you're talking about is usually something illegal has happened so somebody has has has tried said to restart the litigation when they're not supposed to art actual damages for violation of the state typically attorney's fees say that the damages that are compensable for the injury under the statute include mental anguish the typical types of damages that i just talked about including putative damages and congress state so the question is when did the violation of the stay what attorney's fees were necessarily incurred to stop the violation of the stay which is the injury and in this case the  and that occurred in november third of two thousand and eleven so any attorney's fees that were incurred and the word attorney's fees incurred up to that point to rectify the issue of the violation of the stay those would be compensable we don't disagree with that under the little literal interpretation of the statute and because of the supreme court to incur fees for an appeal to the district court in an appeal to this core and to proceed to this court well that's a continuing injury and that distorts the meaning of actual damages actual damages is not defined by the statute as i've said and we and it's hornbook law it's to redress the injury and not to pursue a claim for damages and all the fees that have been requested  that are on appeal to pursue this claim for damages now even assuming this court ruled as a matter of law that actual damages include the cost of this appeal the appeal to  there's a question of burden of proof actual damages have to be proven they have to be proven by admissible evidence this is not a fee shifting statute where if you prevail at the end of the case you just present your attorney fees statements and say this is what we should be awarded or you present your content contingency fee agreement and this is what you should be awarded under the lodestar method  there's been an absence of proof with respect to whether mrs support in was legally obligated to pay these fees and the statute itself says that the attorney's fees obligated to pay these fees is there something different about the statute than the way our payment out of attorneys fees usually works because typically the process for getting attorney's fees you submit the fees and bills to the court for their consideration and determination if they're reasonable and there doesn't seem anything that happened in this case that's and use all in terms of how district courts routinely deal with issues of people seeking to cover their attorney's fees so what is different about this case then the way it's handled kind of across the board the difference is the language of the statute that authorizes attorneys fees as actual damages this is not a typical case in which attorneys fees are shifted to the prevailing party in that instance we wouldn't be here we wouldn't be arguing this congress chose to use the words actual damages including attorneys fees so attorneys fees congress included as a subset of actual damages but that defining guideline is what constitutes an actual damages so the courts that have addressed this issue have said that there has to be affirmative proof that the obligation is a good is by the injured party this is to reject the injured party for actual damage to the injured party and there  is the testimony that they point to as proof that the horns are obligated to pay this fee that is out of proportion to the thirty thousand dollars that was awarded as compensatory damages for the actual injury is testimony not from the adversary proceeding against mismanage by its testimony regarding the to vacate that discharge that was filed by a separate attorney not miss mann applies so the testimony from the hearing on the motion to bake a discharge where mr horn says he looks at some statements or ms or looked at some statements attorney who had no application to the adversary proceeding for a violation of the stay so when i talk about the burden of proof which it is their obligation to prove these attorneys species this and i represent this one but i would like to take issue with a few of the things that mr o'hara just stated before actually getting into my argument first his argument that he made that attorneys fees are limited to stopping the stay and the analysis which he went through with regard to the actual damages requirement and they specifically say yes under that statute under three sixty two k want that the attorney who represents the de actual damages includes the whatever cost it takes to pursue it and to defend the judgment on appeal and then to farka tourney fees on attorney's  then every cause of action you have to recover actual damages under that rationale includes eternity's and that's not the way the american room functions and that's not the way the tourney sees law is this is i think shifting the statute your honor or at least but the question is how far does it shift the face i think it shifts the phase your honor as will far as they are person or the entity that violated the stay which is to put it on appeal because the only way the statute w in making the debtor whole from his loss is if his face get paid that is true every statute providing for damages yes that is true every common law tort the injured party is not made whole unless they get attorney's fees yet the american rule is they don't get attorney's fees so typically traditionally the standard practice is they're not made is what the the code say is is that a person injured by a willful violation of the automatic stuff is entitle to have actual damages including attorney's f you know nine hundred eighty eight which is the basis for i guess for dollar amount for more attorneys fees and anything in the federal system says in any action of proceeding to him for supervision and then there's a plethora of statute cited include not to eighty one everything else the court may allow the prevailing party a reasonable attorney's fees is part of the cost and that's not w saying it doesn't say that and an action to enforce the state provision the court may allow the debtor if he or she is the prevailing par then yes your title to recover and i think you get jurors are entitled to get your face for as long as they person who are the  case just like what is your position regarding that case that case was sided if i recall your honor for the purpose of demonstrating the ad in this quote from the sheet metal case in there which said that normally the shifting statutes in clute face on face because that's the only way you can maintain the purpose of the statute i think the relief from state statute is as a matter of fact way to look at every case case came out your honor that i think you were looking at the there's been one circuit level decision over overturned starboard there are five additional bankruptcy court cases that have ruled the s half and that was everyone we can find prior to that and the court and sort of the ninth circuit pointed out the they had not found at the time and they overruled started bar another case in the country other than their decision and for that reason they were withdrawing it to bring circuits into basically into harmony now the first the fifth and the ninth all have the same law a not bay i face shifting statute was the city of philadelphia case that one is distinguishable because what he says about the judge in that case says about bike  it's just basically speculation because there was no damages that they found that they debtor had suffered in the state and without that initial injury from the study there's nothing to trigger the rest of the statute or the damages aspect but your honor too i think to overwhelming body of law and buy at the bankruptcy court and at the district court level because the cases are and stand in recess until tomorrow morning