1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EC-14-1581-KuDTa

)

DARRYL CHADWICH CARTER, ) Bk. No. 13-34802

)

Debtor. ) Adv. No. 14-02144

______________________________)

)

DARRYL CHADWICH CARTER, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

RON L. BARBER, )

)

Appellee.** )

______________________________)

Submitted Without Oral Argument

on March 17, 2016

Filed – April 22, 2016

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable David E. Russell, Bankruptcy Judge, Presiding

 

Appearances: Appellant Darryl Chadwich Carter, pro se, on

brief.

 

Before: KURTZ, DUNN and TAYLOR, Bankruptcy Judges.

FILED

APR 22 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

*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 8024-1.

**Appellee Ron L. Barber neither appeared nor participated

in this appeal.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

INTRODUCTION

Former chapter 131 debtor Darryl Chadwich Carter appeals

from the bankruptcy court’s judgment on his complaint seeking

sanctions for an alleged violation of the automatic stay. The

judgment denied Carter’s requests for injunctive relief,

emotional distress damages, punitive damages and attorney’s fees. 

Carter’s appeal from the bankruptcy court’s denial of

injunctive relief is moot. The activity he sought to enjoin, 

the continuation of a state court unlawful detainer proceeding, 

has been completed. Consequently, we cannot offer Carter any

meaningful or effective relief with respect to that ruling even

if we were to conclude that the bankruptcy court erred in denying

Carter injunctive relief. 

On the other hand, the bankruptcy court’s ruling on damages 

still presents a live controversy, and the bankruptcy court erred

in making that ruling. In the process of making the ruling, the

bankruptcy court denied Carter the opportunity to present his own

testimony regarding the damages he suffered as a result of the

stay violation.

Furthermore, the ruling was based on the incorrect premise

that Barber’s willful stay violation was limited to a very short

period of time, during which little occurred in the unlawful

detainer action. The ruling did not account for the fact that

the filing of the unlawful detainer action and service of the

1Unless specified otherwise, all chapter and section

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

all "Rule" references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037. All “Civil Rule” references are to

the Federal Rules of Civil Procedure.

2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

summons and complaint both occurred before the bankruptcy court

granted the unlawful detainer plaintiff, Ron L. Barber, relief

from the automatic stay. As a result, the acts of filing and

serving the complaint were stay violations and were void ab

initio.

Barber was under a continuing duty to rectify his stay

violations once he learned of Carter’s bankruptcy case. Barber

indisputably was aware of the case by no later than June 6, 2014,

when he signed and filed a declaration in support of his motion

for relief from stay. But Barber never remedied his stay

violations, nor did he ever seek annulment of the stay to

retroactively validate the violative actions he took in the

unlawful detainer action.

Accordingly, we DISMISS as moot the portion of this appeal

challenging the bankruptcy court’s denial of injunctive relief. 

The remainder of the bankruptcy court’s judgment is VACATED, and 

we REMAND with the instruction that the bankruptcy court give

both sides the opportunity to further develop the record on the

questions of causation, actual damages and punitive damages. 

When the court next considers Carter’s damages claims, it should

keep in mind that Barber’s willful stay violation began no later

than June 6, 2014 (perhaps earlier) and did not end when the

bankruptcy court granted Barber relief from stay, as the

bankruptcy court ruled.

FACTS

Carter commenced his chapter 13 bankruptcy case in November

2013. In or around May 2014, Carter failed to make his

residential rent payment, so his landlord, Barber, commenced an

3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

unlawful detainer action in the Solano County Superior Court on

May 13, 2014.

There is no evidence in the record that Barber had notice or

knowledge of Carter’s bankruptcy filing at the time the unlawful

detainer action was commenced. Carter did not include Barber, or

Barber’s property management company, or any of the property

management company’s employees on his bankruptcy mailing list or

on the schedules he filed with his bankruptcy petition.

The record suggests that Barber might have learned of

Carter’s bankruptcy filing as early as mid-May 2014, from papers

Carter filed in the unlawful detainer action, in which Carter

argued that the filing and service of the unlawful detainer

complaint violated the Bankruptcy Code and the automatic stay. 

In any event, Barber definitely knew about the bankruptcy

filing (and the automatic stay) by no later than early June 2014,

because he filed in the bankruptcy court on June 6, 2014, a

motion to modify the automatic stay to permit him to pursue his

rights under state law to recover possession of the leased

premises from Carter. The relief from stay motion was

accompanied by Barber’s personal declaration, also dated June 6,

2014.

Notably, the relief from stay motion did not seek to annul

the stay in order to retroactively validate Barber’s filing and

service of the unlawful detainer complaint, which both took place

in May 2014. In fact, none of Barber’s moving papers, including

his personal declaration, even mentioned the actions Barber had

taken in violation of the stay in May 2014. Without any

knowledge of the pending unlawful detainer action, the bankruptcy

4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

court entered an order on June 30, 2014 granting Barber relief

from the stay to permit him to take steps to obtain possession of

the property. Pursuant to Rule 4001(a)(3), that order became

effective on July 14, 2014.

Meanwhile, on May 28, 2014, Carter filed, in pro se, an

adversary complaint against Barber for violation of the automatic

stay, seeking injunctive relief, actual damages, emotional

distress damages, punitive damages and attorney’s fees. While

not artfully pled, Carter did allege in the complaint that

“Defendant Barber improperly brought his UD action in violation

of the stay” and that “Barber sought continuation in the

[unlawful detainer] action despite Carter’s contentions for

dismissal of the action.” Complaint (May 28, 2014) at ¶¶ 22, 24. 

Immediately following this allegation, Carter cited Eskanos &

Adler, P.C. v. Leetien, 309 F.3d 1210 (9th Cir. 2002), for the

proposition that “‘sanctions were appropriate under 11 U.S.C.

§ 362(h) [now § 362(k)] because Eskanos knew of the bankruptcy

filing on September 6, 2000, and unjustifiably delayed in

dismissing the state action until September 29, 2000.’” 

Complaint (May 28, 2014) at ¶ 24.

According to the proof of service Carter filed in the

bankruptcy court, Carter served Barber and the Barber trust at 

two addresses, one in Alamo, California and the other in

Fairfield, California.2 When Barber failed to respond to the

2These are the same two addresses that Carter listed in his

notice of appeal for Barber. Carter apparently obtained these

two addresses for Barber from exhibits that Barber filed in

support of his relief from stay motion.

5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

adversary complaint, Carter requested and obtained entry of

default and then filed a motion for entry of default judgment. 

Carter’s default judgment motion was accompanied by a declaration

and exhibits. While the evidence was thin, there were at least

some statements in his declaration regarding the emotional

distress he claims to have suffered and at least one of the

exhibits submitted therewith suggests that Carter was treated for 

depression throughout the course of the unlawful detainer

proceedings. At the first hearing on the default judgment

motion, the bankruptcy court ruled that Carter had pled a

sufficient claim for relief for violation of the automatic stay. 

According to the court, “[Barber’s] willful violation of

11 U.S.C. § 362(a) . . . occurred between May 14, 2014 and

July 14, 2014.” Civil Minutes (Oct. 7, 2014), at p. 1. In

addition, the bankruptcy court continued the matter for an

evidentiary hearing so that Carter could give evidence to “prove

up” his damages. 

However, at the final hearing, the bankruptcy court did not

allow Carter (again, appearing in pro se) to present any

testimony. The court apparently did permit Carter to present a

package of exhibits containing at least some evidence regarding

the amount of Carter’s alleged damages, but the court was

convinced that Carter did not incur much in the way of actual

damages or emotional distress damages. Nor did the bankruptcy

court see any evidence reflecting egregious conduct or any other

type of conduct that might justify punitive damages.

Carter attempted to persuade the bankruptcy court that the

entire prosecution of the unlawful detainer action was a

6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

violation of the automatic stay. Among other things, Carter

asserted that “[e]verything associated with this case as well as

the initiation of the unlawful detainer in the state court” was

predicated on a violation of the automatic stay. Hr’g Tr.

(Dec. 5, 2014) at 24:18-25:7. But the bankruptcy court opined,

in response, that the willful stay violation was of very limited

duration and that not much occurred during that time period –

other than service of the unlawful detainer complaint. According

to the court, the stay violation ceased as soon as Barber

obtained relief from the automatic stay. Hr’g Tr. (Dec. 5, 2014)

at 25:1-13. 

Having reviewed Carter’s exhibits, the bankruptcy court

concluded that Carter was entitled to a default judgment of no

more than $500. The bankruptcy court entered judgment in

Carter’s favor in the amount of $500, and Carter timely appealed.

JURISDICTION

The bankruptcy court had “arising under” jurisdiction

pursuant to 28 U.S.C. §§ 1334 and 157(b)(1). See Aheong v.

Mellon Mortg. Co (In re Aheong), 276 B.R. 233, 244 (9th Cir. BAP

2002). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Did the bankruptcy court correctly consider and assess

Carter’s damages claims allegedly arising from Barber’s willful

stay violation?

STANDARDS OF REVIEW

We review for an abuse of discretion the amount of damages

awarded under § 362(k) for a willful violation of the automatic

stay. See Eskanos & Adler, P.C., 309 F.3d at 1213.

7
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The bankruptcy court abused its discretion if it applied an

incorrect legal standard or its findings of fact were illogical,

implausible or without support in the record. United States v.

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

DISCUSSION

1. The appeal from the denial of injunctive relief is moot.

A claim for relief becomes constitutionally moot when “the

issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome.” Murphy v. Hunt,

455 U.S. 478, 481 (1982). In the context of appellate review,

“an appeal is moot if no present controversy exists as to which

an appellate court can grant effective relief.” Vegas Diamond

Props., LLC v. F.D.I.C., 669 F.3d 933, 936 (9th Cir. 2012).

Carter has admitted that the unlawful detainer action no

longer is pending and that he no longer is in possession of the

leased premises. More to the point, the acts Carter sought to

enjoin – Barber’s continued prosecution of the state court

unlawful detainer action – already have been completed. Given

the nature and scope of Carter’s adversary complaint, the scope

of this appeal, and the completion of the acts Carter sought to

enjoin, we cannot provide any meaningful relief to Carter. “This

action is moot because the activities sought to be enjoined have

already occurred and can no longer be prevented.” Id.; see also

Center For Biological Diversity v. Lohn, 511 F.3d 960, 963-64

(9th Cir. 2007); Seven Words LLC v. Network Solutions, 260 F.3d

1089, 1095 (9th Cir. 2001). In short, the portion of Carter’s

appeal seeking review of the bankruptcy court’s denial of

injunctive relief is moot. 

8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. The bankruptcy court’s damages analysis incorrectly presumed

that Barber’s willful stay violation ended when the order

granting relief from the automatic stay became effective.

Upon the commencement of Carter’s bankruptcy case, a stay

automatically went into effect that, in relevant part, enjoined

all entities from engaging in “any act to obtain possession of

property of the estate or of property from the estate or to

exercise control over property of the estate . . . .” 11 U.S.C.

§ 362(a)(3); see also State of Cal. Emp. Dev. Dep't v. Taxel

(In re Del Mission Ltd.), 98 F.3d 1147, 1151 (9th Cir. 1996). As

we previously have explained: 

The scope of the automatic stay is quite broad, and is

designed to immediately maintain the status quo by

precluding and nullifying postpetition actions, whether

judicial or nonjudicial, in nonbankruptcy forums

against the debtor and property of the estate. 

Exceptions to the automatic stay are read narrowly, and

actions taken in violation of the stay are void rather

than voidable. 

Dunbar v. Contractors' State License Bd. of Cal. (In re Dunbar),

235 B.R. 465, 470-71 (9th Cir. BAP 1999) (citations omitted),

aff'd, 245 F.3d 1058 (9th Cir. 2001). The voidness of acts and

judicial proceedings pursued in violation of the stay is a

critical feature of one of the most important provisions of the

Bankruptcy Code, because it helps to ensure that the stay is

self-executing. See Gruntz v. County of Los Angeles

(In re Gruntz), 202 F.3d 1074, 1081-82 (9th Cir. 2000) (en banc).

For voidness purposes, it makes no difference whether the

stay violator was aware of the stay when he or she violated the

stay. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1188

(9th Cir. 2003). Regardless, all acts and judicial proceedings

undertaken in violation of the stay are void. In re Gruntz,

9
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

202 F.3d at 1082. 

Frequently, there is a disconnect between the violative acts

on the one hand and the formal acknowledgment and effectuation of

their voidness on the other hand. See, e.g., In re Dyer,

322 F.3d at 1192; Eskanos & Adler, P.C., 309 F.3d at 1214-15;

In re Del Mission Ltd., 98 F.3d at 1151-52. When this occurs,

the stay violation is continuing, and it is incumbent on the stay

violator to take affirmative steps to remedy the stay violation

by attempting to unwind the violative acts or proceedings. See

Sternberg v. Johnston, 595 F.3d 937, 944-45 (9th Cir. 2010) (as

amended), partially overruled on other grounds by, America's

Servicing Co. v. Schwartz–Tallard (In re Schwartz-Tallard),

803 F.3d 1095 (9th Cir. 2015) (en banc); In re Dyer, 322 F.3d at

1192; In re Del Mission Ltd., 98 F.3d at 1151-52.

If the stay violator knows of the bankruptcy case but fails

to take affirmative steps to unwind the violative acts or

proceedings, he or she is willfully violating the automatic stay. 

Sternberg, 595 F.3d at 945; In re Dyer, 322 F.3d at 1192; Eskanos

& Adler, P.C., 309 F.3d at 1215.

Here, Barber knew of Carter’s bankruptcy case and knew about

the automatic stay, at the very latest, when he prepared and

filed his relief from stay motion in early June 2014. It also is

quite possible that Barber knew of the bankruptcy case and the

stay two or three weeks earlier – in mid-May 2014 – after Carter

filed papers in the unlawful detainer action complaining that the

unlawful detainer action violated the Bankruptcy Code and § 362. 

Sternberg, Dyer and Eskanos all stand for the proposition that,

once Barber knew of the stay, his failure to take affirmative

10
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

steps to remedy the acts he took in violation of the stay

constituted a continuing willful violation of the stay.

The Bankruptcy Code does provide an “out” for inadvertent

stay violators facing the threat of damages for willful violation

of the stay if they don’t unwind the effects of their inadvertent

stay violations: the stay violator may file a motion to annul

the stay under § 362(d). Such motions, in effect, seek

retroactive stay relief so as to validate actions that otherwise

would be void as stay violations. See Schwartz v. United States

(In re Schwartz), 954 F.2d 569, 573 (9th Cir. 1992).

We previously have examined the standards for granting

annulment of the stay,3 but we need not linger on those standards

here. Barber filed a relief from stay motion in the bankruptcy

court in June 2014, but he never requested annulment of the stay

in order to retroactively validate the void acts he took in May

2014 to recover possession of the leased property from Carter. 

These actions included the filing and service of his unlawful

detainer complaint. These actions also included Barber’s

attempted termination of Carter’s leasehold interest for nonpayment of rent.

Additionally, Barber neglected to disclose in his relief

from stay motion that he had filed and served his unlawful

detainer complaint in violation of the stay. If Barber had

disclosed these facts to the bankruptcy court, we are convinced

the bankruptcy court either would have directed Barber to amend

3See, e.g, Gasprom, Inc. v. Fateh (In re Gasprom, Inc.),

500 B.R. 598, 607 (9th Cir. BAP 2013); Fjeldsted v. Lien

(In re Fjeldsted), 293 B.R. 12, 25 (9th Cir. BAP 2003).

11
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

his relief from stay motion to seek annulment of the stay or

would have denied the relief from stay motion to the extent

Barber was seeking permission to proceed with the unlawful

detainer action he commenced in violation of the stay. 

Under § 362(k)(1), “. . . an individual injured by any

willful violation of a stay provided by this section shall

recover actual damages, including costs and attorneys' fees, and,

in appropriate circumstances, may recover punitive damages.” 

Those actual damages should include costs and attorney’s fees, as

well as emotional distress damages, provided that the injured

individual proves, among other things, that the stay violation

caused his or her damages. See Dawson v. Wash. Mutual Bank, F.A.

(In re Dawson), 390 F.3d 1139, 1149 (9th Cir. 2004) (holding that

injured individual has burden of proof to establish both

causation and damages). And to recover punitive damages, the

injured individual must prove the stay violator’s “reckless and

callous disregard for the law or the rights of others” or make a

showing of “malicious, wanton, or oppressive” conduct. Snowden

v. Check Into Cash of Wash. Inc. (In re Snowden), 769 F.3d 651,

657 (9th Cir. 2014)

Here, the bankruptcy court essentially ruled that Carter

could not possibly prove actual damages in excess of $500, nor

any emotional distress or punitive damages, because virtually

nothing of significance happened during the short span of time

that Barber was in willful violation of the stay. However, the

court’s damages assessment did not account for the fact that

Barber’s willful stay violation (and hence his potential exposure

for damages under § 362(k)(1)) did not end when the court granted

12
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Barber relief from the stay. At that time, Barber had neither

obtained an annulment of the stay nor otherwise remedied his stay 

violation.

We note that the documentary evidence Carter was prepared to

present on the issues of causation and damages was very thin. 

Furthermore, we did not see much evidence in the record that

might demonstrate the type of conduct from which punitive damages

might arise. Nonetheless, we do not know what Carter might have

said if the court had given him the chance to testify at the

final evidentiary hearing. The bankruptcy court preempted his

evidentiary presentation based on its incorrect view regarding

the limited duration of Barber’s willful stay violation. On

remand, both sides should be given the opportunity to further

develop the record on the issues of causation, actual damages

(including emotional distress damages) and punitive damages.

One issue that does not need to be addressed on remand is

the issue of attorney’s fees. Pro se litigants cannot recover

attorney’s fees as an item of actual damages in an action under

§ 362(k). See In re Figuera, 2014 WL 4923078, at *10 (Bankr.

E.D. Cal. July 28, 2014) (citing Elwood v. Drescher, 456 F.3d

943, 947–48 (9th Cir. 2006)). 

CONCLUSION

For the reasons set forth above, we DISMISS as moot the

portion of this appeal challenging the bankruptcy court’s denial

of injunctive relief. The remainder of the bankruptcy court’s

judgment is VACATED, and we REMAND with the instruction that the

bankruptcy court give both sides the opportunity to present

additional evidence on the questions of causation, actual damages

13
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(including emotional distress damages) and punitive damages. 

Additionally, when the court next considers Carter’s damages

claims, it should keep in mind that Barber’s willful stay

violation began no later than June 6, 2014 (perhaps earlier) and

did not end when the bankruptcy court granted Barber relief from

the stay.

14