Jones Versus Wells Fargo Addresses The Rights Of Debtors In Bankruptcy (Part Four)

27 Oct Jones Versus Wells Fargo Addresses The Rights Of Debtors In Bankruptcy (Part Four)

In Part Three of these articles onthe decisionin the Jones v. Wells Fargo casewe discussed the Bankruptcy Court’s findings with respect to whether the charges assessed by Well Fargo, both prepetition and postpetition, violated the bankruptcy stay.

Having performed its analysis and having found many of the charges and fees to be unwarranted and/or unauthorized violations of the stay, the Court then turned its attention to what damages Jones sustained as a result of the violation of the stay by the creditor.

In determining the amount and type of damages, the Court began its analysis by noting that the calculation of a debtor’s disposable income includes the installment payments accruing post confirmation on a loan, but does not include an allowance for the additional fees and costs assessed by Wells Fargo. Thus, when the creditor applied any portion of Jones’ earnings to undisclosed fees and charges, rather than the installments owed under the note and payable under the plan, it reducedhis ability to pay either the reasonable and necessary costs of his support, or the amounts due under his plan.

Jones maintained that the actions of Wells Fargo in applying payments to undisclosed fees and charges as well as its actions in overstating the payoff were willfull violations of the stay provisions of the Bankruptcy Code entitling Jones to recover fees, costs, and damages under 11 U.S.C.§ 362(h).

Hesought both actual and punitive damages. (Update: Punitive damages recently awarded in this case!)

In responding, Wells Fargo stated that its actions in violating the stay were not willful.

However, the Court noted that a willful violation does not require a specific intent to violate the stay, as the statute provided for damages as long as Wells Fargo knew of the existence of the automatic stay and its actions were intentional. The Court found that Wells Fargo knew of the stay and yet intentionally assessed and collected fees and costs without Court authority.

The Court found that the inclusion and payment of the Sheriff’s costs, particularly without giving Jones a reasonable opportunity to review them and without supporting documentation, resulted in a payment that was “clearly an amount that was not owed.”

The Court ordered Wells Fargo to return to Jones the Sheriff’s costs and postpetition charges and fees that were charged to Jones.

After reviewing the various amounts assessed and collected by Wells Fargo, the Court determined that Jones had owed $207,013.32 on January 4, 2006, the date of his refinancing, instead of the $231,463.97 collected by Wells Fargo.

Wells Fargo was ordered to pay $24,450.65 subject to a credit of $7,598.64 that had been returned on April 20, 2006, for a balance due to Jones of $16,852.01 plus judicial interest until paid.

The Court denied Jones request for damages incurred as a result of the loss of personal time finding that there was no evidence that he missed work or incurred a loss of income.

In Part Five we will look at the Court’s analysis of whether Wells Fargo’s actions warranted the imposition of sanctions.

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I've been a consumer bankruptcy lawyer for nearly 25 years. Since that time I have helped many people resolve their financial problems. I have been practicing law since 1986 and I am licensed to practice in all state and federal courts in the State of Louisiana. Because I am a sole practitioner, you know that your debt matters are being handled by me personally. In addition to my work with consumers, I am also frequently asked to speak at local seminars on bankruptcy law. I am member of the following organizations: • Louisiana Bar Association • National Association of Consumer Bankruptcy Attorneys • Bankruptcy Law Network My office is located at: 3920 General DeGaulle Drive, New Orleans, LA 70114 Telephone: (504) 368-4101

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