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In Re William Charles Bace v. Trustee Roy Babitt

July 3, 2012

IN RE WILLIAM CHARLES BACE,
APPELLANT,
v.
TRUSTEE ROY BABITT, ET AL.,
APPELLEES.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT ELECTRONICALLY

FILED DOC #:

ORDER ADOPTING R&R

On August 3, 2011, pro se appellant William Charles Bace ("Appellant") filed an amended appeal from two orders entered by the Honorable Robert D. Drain, United States Bankruptcy Judge, dated June 28, 2011, in In re William Charles Bace, Case No. 05-42446. Appellees, the City of New York Department of Finance ("DOF") and the New York City Police Department ("NYPD") (collectively, the "City"), oppose the appeal; and New York City Marshal Jeffrey S. Rose adopts the City's arguments. Additionally, appellee Roy Babitt, Esq., in his capacity as Chapter 7 Trustee ("Trustee"), moves to dismiss the appeal as against him.

On May 10, 2012, Magistrate Judge Henry B. Pitman issued a Report and Recommendation ("R&R"), recommending that the Court affirm the Bankruptcy Court's orders and grant the Trustee's motion to dismiss. Neither party has filed objections to the R&R.

For the reasons that follow, the Court adopts Magistrate Judge Pitman's R&R in its entirety. The Bankruptcy Court's orders are therefore AFFIRMED and the Trustee's motion to dismiss is GRANTED.

I.Bankruptcy Proceedings*fn1

On October 16, 2005, Appellant filed a Chapter 13 Bankruptcy Petition in the United States Bankruptcy Court for the Southern District of New York (the "Bankruptcy Court"). On Schedule C of his petition, entitled "Property Claimed as Exempt," Appellant reported a 1992 Subaru with an alleged market value of $1,000. On Schedule F, entitled "Creditors Holding Unsecured Non-priority Claims," Appellant listed a claim for "fines" owed to "NYC Parking Fines P.O. Box 3670 NY NY 10008," in the amount of $2,228.00.

On March 9, 2006, the Bankruptcy Court converted Appellant's Chapter 13 case to a Chapter 7 case, and appointed the Trustee. On May 31, 2006, the DOF filed a proof of claim against Appellant for $3,800.98 in unpaid parking fines, including penalties and interest. On November 7, 2008, the DOF amended its claim to reflect updated penalties and interest for a total of $4,123.46 in unpaid fines. On May 7, 2009, Appellant was granted a discharge from most of his debts, pursuant to 11 U.S.C. § 727; but was notified that not all debts were dischargeable, including "[d]ebts for most fines [and] penalties," pursuant to 11 U.S.C. § 523.

On July 9, 2009, Appellant moved for an order declaring the DOF in contempt of court (the "First Motion"), arguing that by wrongfully seizing, impounding, and, ultimately, selling his 1992 Subaru to satisfy his pre-petition parking fines, the DOF willfully violated the automatic stay imposed pursuant to 11 U.S.C. § 362. Appellant also claimed that the DOF willfully violated the discharge injunction, entered pursuant to 11 U.S.C. § 524, by wrongfully seizing and impounding his 1997 Subaru-a replacement car for his 1992 Subaru that had been sold-in order to satisfy the balance of the aforementioned debts.

On or about September 24, 2010, Appellant re-filed his First Motion, in which he added a claim for compensatory and punitive damages and included evidence showing that his 1992 Subaru had been sold at a NYPD auction for $475.00. On November 23, 2010 and June 6, 2011, Judge Drain held hearings in connection with the First Motion.

Following the June 6, 2011 hearing, Appellant filed a motion to re-open the hearing on damages (the "Second Motion"), arguing that he did not have "an opportunity [during the hearing] to discuss in detail . . . [his] intangible damages . . . including, but not limited to, pain and suffering, emotional distress, loss of use of automobile, inconvenience, etc."

On June 28, 2011, the Bankruptcy Court issued two written orders, which are the subject of this appeal. In its first order, addressing Appellant's First Motion, the Bankruptcy Court held that: (1) the City's actions with respect to Appellant's 1992 Subaru constituted a willful violation of the automatic stay and, thus, Appellant was entitled to receive compensatory damages against the City and City Marshal Rose in the amount of $815-$750 for the auctioned 1992 Subaru, and $65 for out-of-pocket expenses; (2) Appellant was entitled to $250 in punitive damages against the City; (3) Appellant's debts to the DOF were non-dischargeable under Section 523(a)(7) and, thus, the City and City Marshal Rose did not violate the discharge injunction entered in Appellant's case; and (4) ...


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