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FILED

MAR 26 2014

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-13-1414-KuPaTa

)

THOMAS WESLEY WALLACE, ) Bk. No. 13-22160

)

Debtor. )

______________________________)

)

THOMAS WESLEY WALLACE, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

CARCREDIT AUTO GROUP, INC., )

)

Appellee. )

______________________________)

Argued and Submitted on February 20, 2014

at Pasadena, California

Filed – March 26, 2014

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Richard M. Neiter, Bankruptcy Judge, Presiding

 

Appearances: Brian L. Dobrin argued for appellant Thomas Wesley

Wallace; Ryan N. English of the English Law

Corporation argued for appellee Carcredit Auto

Group, Inc.

 

Before: KURTZ, PAPPAS and TAYLOR, Bankruptcy Judges.

*This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have (see Fed. R. App. P. 32.1), it has no precedential value. 

See 9th Cir. BAP Rule 8013-1.
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INTRODUCTION

Debtor Thomas Wesley Wallace filed a motion seeking damages

against creditor Carcredit Auto Group, Inc. for violation of the

automatic stay. The bankruptcy court denied the motion and, in

the same order, sua sponte annulled the stay so as to

retroactively validate Carcredit’s postpetition repossession of

Wallace’s vehicle. According to the court, Wallace did not prove

that Carcredit’s stay violation was willful or that Wallace

suffered actual damages as a result of the stay violation. In

addition, the court determined that annulment was appropriate

because Wallace had not provided proof of insurance or any

assurance of his future performance of the obligations he owed to

Carcredit.

The bankruptcy court’s findings regarding Carcredit’s

willfulness and Wallace’s damages were clearly erroneous. 

Moreover, the bankruptcy court improperly annulled the stay

without giving the parties an opportunity to develop the record

regarding the equities of their respective positions on stay

annulment. Accordingly, we REVERSE the bankruptcy court’s order,

and we REMAND for a new damages determination, including

Wallace’s reasonable attorney’s fees.

FACTS

Wallace commenced his bankruptcy case on May 8, 2013, by

filing a chapter 71 petition. Shortly before filing for

bankruptcy, on March 6, 2013, Wallace purchased an automobile

1Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.

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from Carcredit. In exchange for the automobile, Wallace agreed

to make a downpayment of $1,000 and forty-eight monthly payments

of $310.08.

Carcredit apparently permitted Wallace to take possession of

the vehicle without first requiring him to submit proof of

insurance, or to pay the full $1,000 downpayment. Instead, under

the installment sales contract between Carcredit and Wallace,

Carcredit agreed to let Wallace pay the downpayment in three

installments. At the time of the sale, Wallace paid $372. 

Wallace was supposed to pay the remaining $628 balance in two

equal installments of $314, on March 20, 2013, and April 5, 2013,

respectively. According to Carcredit, the credit card that

Wallace used to tender the March 20, 2013 payment was declined. 

On March 29, 2013, Wallace paid $300 in cash towards the

downpayment, but he never paid the remaining balance of the

downpayment nor any of the regular monthly payments. 

Meanwhile, Carcredit assigned its rights under the

installment sales contract to Gold Acceptance Automobile

Financial Services. But the assignment agreement between Gold

and Carcredit required Carcredit to “repurchase” the installment

sales contract upon Wallace’s default, which Carcredit apparently

did. Wallace’s bankruptcy schedules listed Gold as a creditor,

but not Carcredit.

After Wallace commenced his bankruptcy case, Gold sent

Wallace’s bankruptcy counsel a letter on May 30, 2013, offering

to enter into a reaffirmation agreement and assuring counsel that

Gold would not take any actions in violation of the automatic

stay. This letter further stated that Gold had “advised

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[Carcredit] on 5/29 and again on 5/30 to not make any direct

communications with [Wallace]” on account of the bankruptcy

filing.

Nonetheless, on June 4, 2013, Carcredit repossessed the

automobile from Wallace. One day later, on June 5, 2013,

Wallace’s counsel faxed Carcredit a letter advising Carcredit of

the bankruptcy filing, asserting that the repossession violated

the automatic stay, demanding that Carcredit immediately return

possession of the automobile to Wallace and, if Carcredit did not

comply with counsel’s demand, threatening to file a motion in the

bankruptcy court seeking damages based on Carcredit’s stay

violation.

On June 6, 2013, Carcredit’s counsel sent a letter to

Wallace claiming that Carcredit was not aware of Wallace’s

bankruptcy filing until June 5, 2013, the day after repossession,

thereby denying that Gold had advised Carcredit of the bankruptcy

filing before the repossession occurred. Carcredit further

stated that it intended to contact the bankruptcy trustee to seek

the trustee’s opinion regarding the proper disposition of the

car. 

Wallace remained adamant in his demand for return of the

automobile. That same day, June 6, 2013, Wallace sent Carcredit

a fax letter again informing Carcredit that it had violated the

stay by repossessing the automobile, that it was obligated to

remedy the stay violation by immediately returning possession of

the vehicle, and that Wallace would be filing a motion seeking

damages and other relief based on Carcredit’s continuing stay

violation.

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On June 12, 2013, Wallace filed a motion for damages against

Carcredit for violation of the automatic stay, seeking $45 per

day in actual damages, plus an estimated $2,500 in attorney’s

fees and $10,000 in punitive damages. The damages motion also

sought return of the automobile and Wallace’s personal

possessions that were in the vehicle at the time of Carcredit’s

repossession. Wallace’s damages claim was based on the court’s

contempt power under § 105(a) and, alternately, on § 362(k). In

support of his damages claim, Wallace relied on his own

declaration and the declaration of his counsel. But the evidence

regarding damages was thin at best. The following paragraph from

the declaration of Wallace’s counsel is the only evidence that

Wallace submitted directly addressing damages:

My regular billing rate is $300 an hour. I spent one

hour speaking with CarCredit, Mr. English, Christine,

writing the attached letters and reading the letter

from Mr. English. I spent three hours researching and

drafting this motion. I expect to spend another four

hours writing a Reply, and to travel to and from Court

to appear at the hearing on this motion, for a total of

8 hours of attorney time, or $2,400.00 plus the cost of

parking and the filing fee for this motion.

Dobrin Decl. (June 12, 2013) at ¶ 8.

Wallace sought and obtained an order from the bankruptcy

court setting a hearing on the damages motion on shortened

notice. Wallace then served notice of the motion and the hearing

on Carcredit and its counsel, and Carcredit responded by filing

two declarations, one from its president and another from its

counsel. In these declarations, Carcredit once again denied

having any notice or knowledge of Wallace’s bankruptcy filing

before it repossessed the automobile on June 4, 2013. But

Carcredit once again admitted that Wallace’s counsel notified it

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of the bankruptcy filing on June 5, 2013. According to

Carcredit, on June 26, 2013, after it received notice of

Wallace’s motion, it offered to permit Wallace to retrieve the

vehicle, provided that Wallace supplied Carcredit with proof of

insurance naming Carcredit as loss payee.

The initial hearing on Wallace’s damages motion occurred on

July 2, 2013. At the hearing, the bankruptcy court questioned

Wallace’s counsel regarding what Wallace really wanted to achieve

by way of the motion. Wallace’s counsel responded that Wallace

wanted to recover possession of the automobile. Wallace’s

counsel further pointed out that there was no dispute that, on

and after June 5, 2013, Carcredit knew of the bankruptcy filing

but failed to return the car.

The court did not find these facts compelling. Instead, the

court focused on Wallace’s financial ability to cure the default

on the installment sales contract and to make payments due under

the contract. As the court put it, getting the vehicle back

temporarily would not solve Wallace’s underlying transportation

problem. Only redeeming the contract or reaffirming it would

permit Wallace to keep the automobile. The court furthermore

indicated that it would not rule in Wallace’s favor on any

damages claim for violation of the automatic stay unless Wallace

proved his ability to pay for the vehicle:

THE COURT: Well, whether there's a violation of the

stay or not, what are you -- supposing there is a

violation of the stay. But for your seeking sanctions,

that wouldn't resolve the problem, would it? Your

client still wouldn't have the car.

MR. DOBRIN: Well, I did request that you order that the

car be returned as well.

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THE COURT: But, that's only half of the remedy. 

The other half is how does your client pay for the car.

MR. DOBRIN: The remedy to my client, or to the

creditor?

THE COURT: The remedy of the problem. I don't intend to

solve this only half way today. Either your client is

going to pay for the car and convince me how he can pay

for the car, and then I'll rule on the sanctions order,

or he won't. 

Hr’g Tr. (July 2, 2013) at 4:19-5:9 (emphasis added). The court

continued the hearing on the motion to allow Wallace an

opportunity to present evidence on his ability to pay for the

automobile under the terms of the installment sale contract.

On July 15, 2013, the day before the continued hearing on

the damages motion, the bankruptcy court issued a tentative

ruling in favor of Carcredit and against Wallace. Among other

things, the court noted that Wallace had not provided evidence of

insurance or any assurance that he was financially capable of

performing in compliance with the terms of the installment sales

contract. Based on this lack of evidence, the court stated that

it was prepared to annul the automatic stay. The court further

noted that it was not clear whether Carcredit had notice of the

bankruptcy filing before it repossessed the vehicle on June 4,

2013. Based on these circumstances, the court concluded that

Carcredit did not willfully violate the stay and that Wallace had

not proven that he had incurred any actual damages.2

2The full text of the tentative ruling is as follows:

While the repossession of the vehicle is a violation of

the automatic stay under 11 U.S.C. § 362(a), it is not

clear that CarCredit had notice of Debtor’s bankruptcy

continue...

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At the second hearing, Wallace’s counsel attempted to

persuade the bankruptcy court that the facts were sufficient to

demonstrate a willful stay violation and Wallace’s entitlement to

a damages award. But the bankruptcy court was unpersuaded. In

essence, the court held that the automatic stay did not require

Carcredit to return the repossessed vehicle unless Wallace

tendered proof that Carcredit’s interest in the vehicle was

adequately protected. According to the court, in order to

demonstrate adequate protection, Wallace should have provided

proof of insurance and demonstrated his willingness and ability

to cure the payment default under the installment sales contract,

but he failed to do either.

Wallace’s counsel also advised the court that his client, in

the interim, had obtained another automobile to use, so he no

2...continue

filing and the stay on or before 6/4/2013, the day

CarCredit repossessed the vehicle. CarCredit declares

that it did not have notice of Debtor’s bankruptcy

filing until 6/5/2013 and Debtor relies on a letter

from the attorney of Gold Acceptance that does not

expressly state that notice was given to CarCredit

prior to the repossession. Furthermore, in In re

Fitch, 217 B.R. 286, 291 (Bankr. S.D. Cal. 1998), the

bankruptcy court found that a demand for proof of

insurance in exchange for return of the vehicle is a

valid request. At the prior hearing, the Court

inquired of Debtor’s counsel to provide proof of 

insurance and an indication that Debtor can cure the

delinquency and reaffirm the agreement (e.g., the

agreement will not be an undue burden on Debtor). 

Debtor has not provided such adequate assurances of

future performance. Absent such evidence, the Court

will annul the automatic stay. Furthermore, based on

the foregoing, the Court finds no willful violation of

the automatic stay by CarCredit nor evidence of actual

damages to Debtor.

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longer wanted the automobile that Carcredit had repossessed. 

Based on this information, the bankuptcy court ruled that all of

the attorney’s fees that Wallace incurred in attempting to

recover the automobile from Carcredit were unnecessary. The

bankruptcy court concluded the hearing by explicitly adopting its

tentative ruling as its final ruling on the damages motion. 

On August 13, 2013, the bankruptcy court entered an order

denying Wallace’s damages motion and sua sponte granting

Carcredit relief from stay with respect to the automobile. 

Wallace timely filed a notice of appeal on August 26, 2013.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(2)(A) and (G). We have jurisdiction under

28 U.S.C. § 158.

ISSUES

1. Did the bankruptcy court commit reversible error when it

found that Carcredit did not willfully violate the automatic

stay?

2. Did the bankruptcy court properly assess Wallace’s

entitlement to damages under § 362(k)?

STANDARDS OF REVIEW

The bankruptcy court’s determination that a creditor did not

willfully violate the automatic stay is a finding of fact we

review under the clearly erroneous standard. See Sternberg v.

Johnston, 595 F.3d 937, 943 (9th Cir. 2010); Ozenne v. Bendon

(In re Ozenne), 337 B.R. 214, 218 (9th Cir. BAP 2006). An

erroneous view of the law may induce the bankruptcy court to make

a clearly erroneous finding of fact. Id. A court’s findings of

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fact also are clearly erroneous if they are “illogical,

implausible, or without support in the record.” Retz v. Sampson

(In re Retz), 606 F.3d 1189, 1197 (9th Cir. 2010).

We review the bankruptcy court’s assessment of damages under

§ 362(k) for an abuse of discretion. See Sternberg, 595 F.3d at

945; Eskanos & Adler, P.C. v. Leetien, 309 F.3d 1210, 1213 (9th

Cir. 2002).3 We apply a two-part test to determine whether the

bankruptcy court abused its discretion. First, we review de novo

whether the bankruptcy court selected the correct legal standard

to apply. Hinkson, 585 F.3d at 1261–63. And second, if the

bankruptcy court selected the correct legal standard, we consider

whether the court's findings and its application of those

findings to the correct legal standard were illogical,

implausible or without support in the record. Id. at 1262. 

DISCUSSION

To award damages under § 362(k) for violation of the

automatic stay, the bankruptcy court must find that the creditor

willfully violated the stay. See Knupfer v. Lindblade

(In re Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003) (citing

Pinkstaff v. United States (In re Pinkstaff), 974 F.2d 113, 115

(9th Cir. 1992)). And to find a willful stay violation, the

bankruptcy court must conclude that the creditor knew of the

bankruptcy filing and intended the actions that violated the

3The Bankruptcy Abuse Prevention and Consumer Protection Act

of 2005, Pub.L. 109–8, 119 Stat. 23, revised and renumbered § 362

such that the provisions concerning damages for violation of the

automatic stay, formerly contained in § 362(h), were moved to

§ 362(k). See Mwangi v. Wells Fargo Bank, N.A. (In re Mwangi),

432 B.R. 812, 822 n.7 (9th Cir. BAP 2010).

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stay. See id. 

The bankruptcy court here acknowledged that Carcredit’s

repossession of the automobile constituted a technical violation

of the automatic stay. However, the bankruptcy court found that

Carcredit did not willfully violate the stay by repossessing the

vehicle. According to the court, Carcredit did not have notice

of the bankruptcy filing until June 5, 2013, the day after it

repossessed the vehicle. Therefore, the court inferred, the

repossession was not a willful stay violation.

As far as it goes, this finding is unobjectionable. 

However, in making this finding, the bankruptcy court ignored

Carcredit’s conduct on and after June 5, 2013. As of June 5,

2013, Carcredit knew of Wallace’s bankruptcy filing, and yet

Carcredit never volunteered to unconditionally return the vehicle

to Wallace.4

In order to comply with the automatic stay, once it learned

of Wallace’s bankruptcy filing, Carcredit had an “affirmative

duty” to remedy its prior, inadvertent stay violation by

returning the automobile to Wallace. See In re Dyer, 322 F.3d at

1192 (citing Cal. Employment Dev. Dep't v. Taxel (In re Del

4The bankruptcy court found that Carcredit offered to return

the vehicle to Wallace if he provided proof of insurance. The

only evidence we found in the record supporting this finding was

a statement in the declaration of Carcredit’s counsel, which

provided: “On June 26, 2013, I left a voicemail for [Wallace’s

counsel] advising him that his client could retrieve the vehicle

but wanted proof of insurance naming Carcredit as loss-payee.” 

English Decl. (June 27, 2013) at ¶ 4. There is no evidence in

the record that Carcredit was prepared to return the vehicle to

Wallace before that date. Moreover, as we hold infra, Carcredit

was not entitled to condition its return of the vehicle upon

presentation of proof of insurance or upon any other terms.

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Mission Ltd.), 98 F.3d 1147, 1155 (9th Cir. 1996)); see also

Sternberg, 595 F.3d at 945 (“To comply with his ‘affirmative

duty’ under the automatic stay, Sternberg needed to do what he

could to relieve the violation.”). Accord, In re Mwangi,

432 B.R. at 822 (citing Abrams v. Sw. Leasing & Rental, Inc.

(In re Abrams), 127 B.R. 239, 242–43 (9th Cir. BAP 1991)).

Thus, Carcredit’s knowing retention of the vehicle after

learning of Wallace’s bankruptcy filing was a separate and

independent violation of the automatic stay. See In re Abrams,

127 B.R. at 243 (citing § 362(a)(3)). And there can be no

legitimate doubt here that this stay violation was willful. 

Carcredit knew about the bankruptcy filing on and after June 5,

2013, and yet it never returned the vehicle to Wallace despite

his repeated demands. These facts patently satisfy the test for

willfulness set forth in In re Dyer, 322 F.3d at 1191.

It is not entirely clear why the bankruptcy court did not

find Carcredit’s failure to return the vehicle a violation of the

automatic stay, willful or otherwise. Citing In re Fitch,

217 B.R. 286, 291 (Bankr. S.D. Cal. 1998), the bankruptcy court

indicated that Carcredit was entitled to require proof of

insurance before returning the vehicle. But In re Fitch is

inapposite. In Fitch, the creditor lawfully repossessed the

vehicle prepetition, so postpetition there was no prior stay

violation the creditor needed to remedy by returning the vehicle. 

Id. at 290-91.5 

5We need not decide here whether we would follow In re Fitch

if we were confronted with a prepetition repossession instead of

continue...

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In this case, the notion that Carcredit, which indisputably

violated the automatic stay by repossessing the vehicle

postpetition, could condition its efforts to rectify its stay

violation upon the debtor taking certain actions, like providing

proof of insurance and providing assurance of future performance,

is inconsistent with the holding in In re Del Mission Ltd.,

In re Mwangi and In re Abrams. These cases stand for the

proposition that creditors have a mandatory and unconditional

duty under §§ 362(a)(3) and 542(a) to relinquish control of

estate property acquired or controlled postpetition. See

In re Del Mission Ltd., 98 F.3d at 1151; In re Mwangi, 432 B.R.

at 823-24; In re Abrams, 127 B.R. at 242–43.

Alternately, the bankruptcy court held that, in light of

Wallace’s failure to submit proof of insurance and to demonstrate

his financial ability to perform under the installment sales

contract, cause existed for annulment of the automatic stay,

which retroactively validated Carcredit’s repossession and

retention of the vehicle. Therefore, the court reasoned, there

was no stay violation in light of the retroactive effect of the

court’s annulment ruling.

As a threshold matter, this Panel has expressed doubt that

annulment of the stay nullifies the statutory consequences of a

willful stay violation for purposes of a § 362(k) claim. See

5...continue

a postpetition repossession. However, we note that In re Fitch

is directly at odds with Knaus v. Concordia Lumber Co.

(In re Knaus), 889 F.2d 773, 775 (8th Cir. 1989), cited with

approval in, In re Del Mission Ltd., 98 F.3d at 1151, and

In re Abrams, 127 B.R. at 242 & n.6.

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Williams v. Levi (In re Williams), 323 B.R. 691, 702 (9th Cir.

BAP 2005). Even if a technical stay violation may be “cured” by

stay annulment, the continuing stay violation evident herein was

decidedly not a mere technical stay violation. Rather, it was an

overtly willful stay violation, which presumably cannot be cured

by stay annulment. See id.

Even if we were to assume that the statutory consequences of

a willful stay violation could be nullified by annulment of the

stay, the bankruptcy court erred when it annulled the stay sua

sponte, deprived the parties of an opportunity to develop the

record regarding the equities of their respective positions on

stay annulment and failed to weigh those equities. See Gasprom,

Inc. v. Fateh (In re Gasprom, Inc.), 500 B.R. 598, 607-08 (9th

Cir. BAP 2013). As in In re Gasprom, the bankruptcy court here

made no attempt to weigh anything. It simply held, without any

advance warning, that Carcredit was entitled to annulment of the

stay because Wallace did not provide either proof of insurance or

any assurance of his future performance.

In so ruling, the bankruptcy court ignored the fact that one

of the key purposes of the automatic stay is to give debtors a

“breathing spell” from their creditors. See Sternberg, 595 F.3d

at 945 (citing Goichman v. Bloom (In re Bloom), 875 F.2d 224, 226

(9th Cir. 1989)). By refusing to return the vehicle to Wallace,

Carcredit denied Wallace even the temporary breathing space that

might have provided an opportunity for an orderly search for an

alternate means of transportation.

Carcredit was entitled to seek relief from stay based on

Wallace’s failure to provide proof of insurance and some

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assurance of his future performance, but Carcredit never filed a

relief from stay motion, nor did it take any other legally

permissible action to assert its rights in the vehicle once it

learned of Wallace’s bankruptcy filing. Under In re Del Mission

Ltd., In re Mwangi and In re Abrams, Carcredit's retention of the

vehicle repossessed in violation of the stay was not a lawful

option. Under these circumstances, we must reverse the

bankruptcy court’s stay annulment ruling. See In re Gasprom,

Inc., 500 B.R. at 607-08.

The bankruptcy court also found that Wallace failed to prove

that he incurred any actual damages as a result of Carcredit’s

stay violations. According to the bankruptcy court, the

attorney’s fees Wallace incurred in bringing the damages motion

were unnecessary because Wallace ultimately agreed, by the time

of the second hearing, to surrender his right to possession of

the vehicle because he had, by that time, arranged for an

alternate means of transportation.

We are perplexed by the bankruptcy court’s damages finding. 

The record establishes that, at the time of the first hearing,

Wallace did not yet have an alternate means of transportation

and, at that time, still sought return of the vehicle from

Carcredit. It was only sometime after the first hearing, at

which the court announced that Wallace was not entitled to return

of the vehicle without proof of insurance and an assurance of

future performance, that Wallace obtained a different vehicle

from another source. Furthermore, Wallace’s efforts to obtain

alternate transportation were consistent with his duty to

mitigate damages. See Eskanos & Adler v. Roman (In re Roman),

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283 B.R. 1, 12 (9th Cir. BAP 2002). It does not make any sense

to disallow all of Wallace’s fees on account of his successful

efforts to mitigate damages.

Put another way, an award of actual damages, including

reasonable attorney’s fees, is mandatory under § 362(k) once the

debtor establishes that the creditor willfully violated the

automatic stay. See Sternberg, 595 F.3d at 947. The amount of

attorney’s fees awarded should be limited to those that are

reasonable and necessary to remediate the stay violation. Id. at

949. Here, the bankruptcy court in essence found that all of

Wallace’s attorney’s fees were unreasonable and unnecessary

because Wallace later found another means of transportation. 

This finding was clearly erroneous. The record establishes that,

before Wallace found an alternate means of transportation, his

counsel contacted Carcredit both by phone and in writing

demanding return of the vehicle and, when Carcredit did not

comply with these demands, counsel filed the damages motion and

attended the first hearing on the damages motion. Under

§ 362(k), the reasonable fees incurred in rendering these

services are recoverable as actual damages. See id.

On remand, the bankruptcy court, at a minimum, must

determine the amount of attorney’s fees Wallace reasonably

incurred, before finding another means of transportation, in

attempting to recover the vehicle from Carcredit. See generally

In re Roman, 283 B.R. at 11 (utilizing § 330(a) standards for

determining reasonable professional compensation as a guide for

awarding attorney’s fees under § 362(h)). Wallace also is

entitled to consideration of his punitive damages claim on

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remand, although we express no opinion as to what amount of

punitive damages, if any, should be awarded. See generally

In re Bloom, 875 F.2d at 227-28 (reviewing punitive damages

award); In re Daniels, 316 B.R. 342, 355-57 (Bankr. D. Idaho

2004) (discussing punitive damages standards).6

CONCLUSION

For the reasons set forth above, we REVERSE the bankruptcy

court’s order denying Wallace’s damages motion and granting

Carcredit retroactive relief from the automatic stay, and we

REMAND for further proceedings consistent with this decision.

6In the alternative, Wallace sought civil contempt sanctions

against Carcredit under § 105(a) based on Carcredit’s willful

violation of the automatic stay. In light of our analysis and

disposition of this appeal, we decline to address Wallace’s

alternate ground for relief.

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