United States District Court, E.D. New York
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
F. BIANCO United States District Judge.
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.
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.
Court summarizes the facts and procedural history relevant to
the instant appeal.
Bankruptcy Court Proceedings
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. 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.)
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
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.
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
[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. ...