A few days ago, Judge Christopher Klein, a California bankruptcy judge, struck a breathtaking blow for justice when he assessed $45 million in punitive damages against Bank of America for violating the automatic-stay provision of the Bankruptcy Code. You may recall that a Texas bankruptcy judge hit Educational Credit Management Corporation with a $74,000 punitive damages award for the same offense.
Here are the opening words of Judge Klein’s decision in his Bank of America decision:
Frank Kafka lives. This automatic stay violation case reveals that he works at Bank of America.
The mirage of promised mortgage modification lured [Erick and Renee Sundquist] into a kafkaesque nightmare of stay-violating foreclosure and unlawful detainer, tardy foreclosure rescission kept secret for months, home looted while the debtors were dispossessed, emotional distress, lost income, apparent heart attack, suicide attempt, and post-traumatic stress disorder for all of which Bank of America disclaims responsibility.
Judge Klein then detailed Bank of America’s offenses in detail–his opinion is 107 pages long! And at the end, Judge Klein spelled out how the punitive damages award should be apportioned:
The actual . . . damages are $1,074,581.50. The appropriate . . . punitive damages are $45,000,000.00.
The Sundquists are enjoined to deliver $40,000,000 (minus applicable taxes) to public service entities that are important in education in consumer law and deliver of legal services to consumers: National Consumer Law Center ($10,000,000.00), National Consumer Bankruptcy Rights Center ($10,000,000.00), and the five public law schools of the University of California System ($4,000,000.00).
Of course, Bank of America will appeal Judge Klein’s punitive damages award, and who knows how that will go. But regardless of what happens on appeal, Judge Klein has turned a glaring spotlight on Bank of America’s outrageous behavior.
And if the damages award is upheld, money will flow to entities that can help distressed debtors fight the predatory tactics of the banks. That would be a great blessing for American society.
And this brings me to Educational Credit Management Corporation, the predatory student-loan debt collector that violated the automatic stay provision of the Bankruptcy Code more than 30 times by repeatedly garnishing the wages of Kristin Bruner-Halteman, a student-loan debtor who worked for Starbucks. Judge Harlin DeWayne Hale, a Texas bankruptcy judge awarded Bruner-Halteman $74,000 in punitive damages for ECMC’s misbehavior.
But $74,000 is a pittance for ECMC: it probably has that much cash in loose change that slipped under its couch cushions. After all, according to a report by the Century Foundation, ECMC has $1 billion in unrestricted assets. That’s billion with a B.
So–listen up distressed student-loan debtors. If you file for bankruptcy in a case opposed by ECMC and ECMC violates the Bankruptcy Code’s automatic stay provision as it did in the Bruner-Halteman case, you need to ask for several million dollars in punitive damages. How about $10 million–that’s only one percent of ECMC’s assets.
Bruner-Halteman v. Educational Credit Management Corporation, Case No. 12-324-HDH-13, ADV. No. 14-03041 (Bankr. N.D. Tex. 2016).
Robert Shireman and Tariq Habash. Have Student Loan Guaranty Agencies Lost Their Way? The Century Foundation, September 29, 2016
Sundquist v. Bank of America, Adv. Pro. No. 204-0228, Case No. 10-35624-B-13J (Bankr. E.D. Calif. March 23, 2017).