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Mayer v. Decarlo

United States District Court, E.D. New York

March 2, 2017

Ginette Mayer, Appellant,
v.
Anthony DeCarlo, Appellee.

          Appellant Ginette Mayer is represented by Craig D. Robins of the Law Office of Craig D. Robins, Appellee Anthony DeCarlo is proceeding pro se.

          MEMORANDUM AND ORDER

          JOSEPH F. BIANCO United States District Judge.

         Pending before the Court is an appeal by debtor Ginette Mayer (“appellant”) from the February 24, 2016 order of the Honorable Robert E. Grossman, United States Bankruptcy Judge (the “Bankruptcy Order”), granting appellant's motion to reopen her Chapter 7 bankruptcy proceeding; finding pro se creditor Anthony DeCarlo (“appellee”) in contempt for willfully violating a discharge injunction pursuant to the Bankruptcy Code, 11 U.S.C. § 524(a)(2); and declining to award appellant sanctions, actual and punitive damages, and attorneys' fees for appellee's violation of the discharge injunction. Appellant argues that the Bankruptcy Court abused its discretion in declining to award sanctions, damages, and attorneys' fees against appellee and in failing to hold an evidentiary hearing on that issue.

         For the reasons set forth below, the Court vacates the Bankruptcy Order and remands this action to the Bankruptcy Court for further findings and proceedings consistent with this Memorandum and Order.

         I. Background

         The Court summarizes the facts and procedural history relevant to the instant appeal.

         A. The Bankruptcy Court Proceedings

         Appellant filed a voluntary petition under Chapter 7 of the Bankruptcy Code on May 11, 2012 and listed a $2, 800 debt owed by appellant to appellee's company Zemo Landscaping in a schedule attached to her petition. (R.[1] at 8-9, 68.) On August 21, 2012, the Bankruptcy Court granted appellant a full Chapter 7 discharge of her pre-petition debt pursuant to an order of discharge (the “Discharge Order”). (Id. at 9, 73-74.) Zemo Landscaping was served with notice of the Discharge Order, which explained that the Discharge Order “mean[t] that [a creditor] may never try to collect the debt from the debtor.” (Id. at 10, 76, 80.)

         Nevertheless, on or about September 11, 2015, appellee commenced a small claims court proceeding in the Nassau County District Court, Second District to collect $2, 895 from appellant (the “Small Claims Case”). (Id. at 12, 82.) On October 16, 2015, appellant sent appellee a letter stating that appellee had violated the Discharge Order by seeking to collect a pre-petition debt in the Small Claims Case, and warning appellee that failure to terminate the Small Claims Case would cause appellant to seek sanctions and attorneys' fees in the Bankruptcy Court. (Id. at 13, 84.)

         Thereafter, on November 5, 2015, appellant filed a motion in the Bankruptcy Court to reopen the Chapter 7 proceeding and to obtain an order holding appellee in contempt for violating the Discharge Order; granting appellant sanctions, actual and punitive damages, and attorneys' fees; and directing the Nassau County District Court to dismiss the Small Claims Case (the “Contempt Motion”). (Id. at 85.) In the affidavits submitted in support of the Contempt Motion, appellant alleged that appellee filed the Small Claims Case in retaliation for appellant's decision to terminate an intimate relationship between the two of them that began in 2010 and ended in 2014. (E.g., id. at 8, 11-12.) On December 14, 2015, the Bankruptcy Court held a hearing on the Contempt Motion that lasted approximately five minutes. (First Hr'g Tr., ECF No. 2-3.) After briefly hearing argument from appellant's counsel and appellee, who appeared pro se, the Bankruptcy Court and the parties engaged in the following colloquy:

THE COURT: Look. Look. Listen to me. I got other things to do. This isn't Judge Judy.
[APPELLEE]: I'm not - THE COURT: Just, just don't talk. This debt was discharged.
[APPELLEE]: Yes.
THE COURT: And you went ahead - You guys had this personal relationship, which I could care less about, it's over apparently. Move on.
[APPELLEE]: Yes, Sir.
THE COURT: Now unless you could cut a deal, give you - Yeah. You're going to pay something now. You're going to pay him a couple hundred bucks or whatever it is. That's all you're going to get. Take it and be satisfied. If you think I'm re-opening this at a sanctions hearing against this guy and have to hear about this landscaping over $2, 800, one of us is nuts. Now they may think it's me. But since I'm here this is the way it's going. Do you agree?
[APPELLEE]: I agree.
THE COURT: Good. Do you agree?
[APPELLANT]: Reluctantly but yes, Your Honor.
THE COURT: Okay. So you're in the $200 range. Is it enough for you? No. Does it make him hurt a little? Yes. ...

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