Schiavone v. Sovereign Bank

1. Plaintiff filed this complaint against Defendant seeking damages and attorneys’ fees under 11 U.S.C.
§362(h), alleging that Defendant violated the automatic stay when it caused an attorney to send Plaintiff a
post-petition letter on May 27, 2005 seeking to accelerate the balance on a pre-petition secured debt.
Thereafter, Defendant filed an answer to the complaint in which it denied having received notice of Plaintiff’s
bankruptcy filing. On July 20, 2005, Defendant served a Request for Admissions upon Plaintiff in which
Defendant requested that Plaintiff admit the following facts:
UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
In re:
ANTHONY L. SCHIAVONE, JR., 	: 	Case No. 05-20841T
Debtor(s)
:
--------------------------------------------------------
:
ANTHONY L. SCHIAVONE, JR., 	:
Plaintiff(s)
:
v. 	Adv. No. 05-2176
:
SOVEREIGN BANK, 	:
Defendant(s)
:
ORDER
AND NOW, this 	30 th day of November, 2005, it is ORDERED that Defendant’s
motion for summary judgment is GRANTED both on the merits and based upon Plaintiff’s failure
to defend and JUDGMENT ON THE COMPLAINT IS ENTERED IN FAVOR OF DEFENDANT
as the court finds that no genuine issue of material fact exists and Defendant is entitled to judgment
on the complaint as a matter of law, see Fed. R. Civ. P. 56, which is made applicable to adversary
proceedings in bankruptcy cases by Fed. R. Bankr. P. 7056; Celetox Corp. v. Catrett, 477 U.S. 317,
322-23 (1986).1
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(1) that Plaintiff “failed to provide notice of [his] bankruptcy filing by not
listing [Defendant] in Plaintiff’s creditor matrix when [he] filed [his]
chapter 13 bankruptcy;”
(2) that Plaintiff “failed to provide any written notice to [Defendant] of [his]
chapter 13 bankruptcy;”
(3) that Plaintiff failed to “provide notice, telephonically or otherwise to
[Defendant] or their attorneys Whalen, Doyle & Pressman, LLC, at any
point in this case prior to serving the adversary complaint;”
(4) that “ the May 27, 2005 correspondence caused no injury to the
Plaintiff;” and
(5) that “Plaintiff incurred no actual damages, other than incurring attorneys
fees, which would be compensable under 11 [sic] U.S.C. §362(h).”
When Plaintiff failed to respond to the Request for Admissions, Defendant filed the motion for summary
judgment presently before us for disposition as well as an affidavit and a brief in support of its motion. On
September 15, 2005, we entered a scheduling Order directing Plaintiff to file a brief in opposition to
Defendant’s motion for summary judgment within 30 days of the date of the Order.
We begin by noting that Plaintiff has yet to file a brief in opposition to Defendant’s motion for
summary judgment. This fact, along with the fact that Plaintiff failed to file a Response or Objection to
Defendant’s Request for Admissions, leads us to conclude that Plaintiff is not opposing Defendant’s motion
for summary judgment and for this reason alone, we grant Defendant’s motion for summary judgment due
to Plaintiff’s failure to defend.
Moreover, pursuant to Fed. R. Civ. P. 36, which is made applicable to adversary proceedings in
bankruptcy cases by Fed. R. Bankr. P. 7036, a matter set forth in a request for admissions is admitted “unless,
within thirty days after service of the request, ... the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed to the matter... .” Accordingly,
Plaintiff must be deemed to admit the facts that he failed to provide notice of his bankruptcy filing to
Defendant, that the May 27, 2005 correspondence caused no injury to him and that he incurred no actual
damages, other than attorneys’ fees, which would be compensable under section 362(h). See Defendant’s
Request for Admissions, supra. In addition, while Defendant filed an Affidavit in support of its motion for
summary judgment, Plaintiff failed to file a Counter-Affidavit in opposition to Defendant’s motion. As such,
Defendant’s Affidavit establishes that Defendant had no notice of Plaintiff’s bankruptcy filing when it sent
the May 27, 2005 letter to Plaintiff. As it is well established that a violation of the automatic stay must be
willful in order to be sanctionable under section 362(h), and that in order to be willful, the party accused of
violating the automatic stay must have had knowledge of the debtor’s bankruptcy filing, Cuffee v. Atlantic
Business and Community Development Corp. (In re Atlantic Business and Community Development Corp.,
901 F.2d 325, 329 (3 rd Cir. 1990), entry of summary judgment in favor of Defendant is warranted on the
merits as well.
2
Reading, PA
THOMAS M. TWARDOWSKI
United States Bankruptcy Judge
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