Taniesha K. Lowery

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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

In re:
Case No. 05-77353
Taniesha K. Lowery,
Chapter 7
Debtor.
Judge Caldwell

MEMORANDUM OPINION AND ORDER AWARDING DAMAGES

Taniesha K. Lowery (“Debtor”) requests damages from Beacon Property Management and
Realty, Inc. (“Creditor”), due to a violation of the automatic stay. Based upon the record the Court
awards actual damages in the amount $2,690.00, legal fees in the amount of $400.00 and punitive
damages in the amount of $1,000.00, that total $4,090.00. A brief history illustrates the bases.

The Debtor resided in an apartment located on 787 Kenwick Road, Columbus, Ohio that
was managed by the Creditor. The Creditor commenced an eviction proceeding in October 2005.
On October 16, 2005, the Debtor filed under chapter 7 of the United States Bankruptcy Code, and
the Creditor was listed on ,“Schedule F. Creditors Holding Unsecured Nonpriority Claims”, in the
amount of $2,000.00. At the time the Debtor was represented by Scott E. Rice (“Mr. Rice”) of
Rauser and Associates. The record indicates that on October 23, 2005, the Creditor was mailed
formal notice of the filing. The Creditor acknowledged awareness of the case by October 26, 2005,
and as a result abandoned the eviction proceeding.

Mr. Ken Turner (“Mr. Turner”), who managed the property for the Creditor, testified that he
called Mr. Rice on November 1, 2005, to ascertain the Debtor’s intent regarding the apartment.

According to Mr. Turner, Mr. Rice expressed that he was not familiar with the Debtor due to

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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the volume of cases he had filed, but said he would check with the client and reply. Mr. Turner
testified that he did not receive a response. Mr. Turner also testified the Creditor was receiving
complaints from neighbors that teenagers were entering the apartment.

According to Mr. Turner, he went by the apartment on November 7, 2005, and it appeared
to be vacant. He found both doors unlocked, and observed damage to the front lawn by tire tracks.
Mr. Turner then entered the apartment, and found that all the utilities were off. According to Mr.
Turner he found trash and spoiled food in the apartment. He observed a washer and dryer, a bed in
the garage, a table and some chairs, clothing on the basement floor, a baby swing, lawn chairs and
mini blinds.

After he went into the apartment on November 7, 2005, Mr. Turner testified that he again
contacted Mr. Rice and informed him that the property appeared to be vacant, and conveyed that the
Creditor wanted to take possession. Mr. Turner testified that he asked if the Debtor had completely
vacated, but that Mr. Rice would only indicate that he had sent a letter to the Debtor. Mr. Turner
testified that he then started talking with Mr. Warner of Rauser and Associates.

Mr. Turner testified that he talked to Mr. Warner several times between November 8 and
29, 2005, but was never given any authority regarding the apartment. Mr. Warner appears to dispute
this account, by offering that his employment at the Rauser firm did not commence until December
18, 2005. Mr. Rice was not called to testify. Mr. Turner also testified that after November 7, 2005,
he tried to contact the Debtor, but that her cell phone was disconnected, and she was no longer at her

listed employment. Mr. Turner testified that he also left two messages with the Debtor’s parents

to no avail.

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According to the Debtor she missed the November 8, 2005, eviction hearing, and she decided
to look for an apartment. She found an apartment on November 9, 2005, and took possession on
November 15, 2005. The Debtor testified that she started moving on the possession date. This
testimony appears to be in conflict with that of Mr. Turner who indicated that the moving process
had commenced around November 7, 2005. In any event, the day after Thanksgiving the Debtor’s
daughter went into cardiac arrest due to an asthma attack, and was rushed to Children’s Hospital
where she remained for three days.

According to Mr. Turner between November 7 and 29, 2005, he went by the apartment about
ten times, and on five or six of the times the apartment was not locked. Mr. Turner testified that on
November 29, 2005, he entered the apartment, and changed the locks. At this time Mr. Turner
enlisted the services of a Mr. Paul Grabovich who assisted in the removal of some of the Debtor’s
property. This action was taken after notice of the bankruptcy filing and without seeking a
modification of the stay.

Mr. Turner admits at that time several items were removed including a washer and dryer,
a bed in the garage, a damaged round oak table in the basement, mini blinds, lawn chairs and a round
charcoal grill. The Debtor’s property was placed in the alley by Messrs. Turner and Grabovich. Mr.
Turner testified that the mini blinds were dirty and damaged. Mr. Turner testified the apartment was
infested with roaches due to the spoiled food, and that about five cubic yards of trash was removed.
Mr. Turner acknowledged that he erred by entering the apartment and removing items without a

modification of the stay, but was concerned with the unclean condition of the apartment, vandalism

and the lack of heat.

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Also on November 29, 2005, the Debtor asked her father and boyfriend to move the
remainder of her property. She was at work at the time, but when she returned home and learned the
situation she went to the apartment. She then called Mr. Turner. She was told that some of the
property was placed in the alley, but when she went by nothing was found. She called Mr. Turner
again, and was told that the washer and dryer were taken for parts, and that he would try to find
the people that removed them.

The Debtor testified that she was never called by the Creditor to retrieve the property nor
were her parents. She also testified that none of the items in the garage belonged to her. The Debtor
testified that only she and her boyfriend had access to the apartment. With reference to the washer
and dryer, Mr. Turner testified that they appeared to be the Debtor’s primary concern, and he had
assumed that they were junk. Mr. Turner testified that after he talked to the Debtor he went back
to the apartment on the evening of November 29, 2005, and found that the washer and dryer were
gone.

The Debtor testified regarding the items that were lost and their values as follows: a. washer
and dryer $485; b. bed $150.00; c. table and chairs $500.00; d. gas grill $350.00; e. clothing
$375.00; f. rocking chair $150.00; g. baby swing $150.00; h. baby toys $150.00; i. lawn chairs
$40.00; j. curtains $40.00; and, k. mini blinds $300.00. The Debtor testified that the Maytag- brand
washer and dryer were given to her new in 2004 by her grandmother, and that the other items were
purchased between 2004 and 2005. The gas grill was purchased form Lowe’s at the cost of $450.00.
Mr. Turner testified that he observed an older grill when he mowed.

The Debtor testified that she called the police, and that they took a report. The report was

not offered into evidence. The Debtor testified that about 35% of her clothing was lost, and that the

-4.

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removed items were in good condition. The Debtor testified that she lost her job due to stress, and
had been on medication. She testified that she has had to use the laundry mat at the expense of
$40.00 per week. The Debtor has not been able to replace all of the removed items.

The Debtor has requested damages for her lost property in the amount of $2,690.00, legal
fees in the amount of $400.00 and punitive damages in the amount of $2,000.00. Regarding the lost
property, while there is some conflict in the testimony regarding what was removed from the
apartment and when, the Court finds the Debtor’s testimony more credible with reference to the
items and their values.

All of the property claimed would be found in most households, and the values do not appear
to be inflated. Further, if the Creditor had not violated the stay by entering the apartment and
removing the property, there would have been no loss. The Creditor acknowledges that it acted in
error by entering the apartment and removing some of the Debtor’s property, and this Court has
previously found that the stay was violated. Regarding the legal fees, the requested amount of
$400.00 appears to be reasonable in view of the time required to prosecute the show cause
proceeding involving two hearings.

On the issue of punitive damages, the Court has determined, however, that the request
should be reduced by 50% to $1,000.00. This balance is struck in recognition that the Debtor was
harmed by the Creditor’s inappropriate action by entering the apartment and removing some items
without seeking prior court approval. On the other hand, the Court finds credible the testimony
presented on behalf of the Creditor that indicated it had concerns with reference to the condition of

the apartment , and that attempts were made to contact the Debtor and Counsel to make appropriate

arrangements.

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Accordingly, the Court awards actual damages in the amount $2,690.00, legal fees in the
amount of $400.00 and punitive damages in the amount of $1,000.00, that total $4,090.00.

IT IS SO ORDERED.

Date: March 23, 2007 Oe I} Che

Charles M. Caldwell
United States Bankruptcy Judge

Copies to:

Taniesha K. Lowery, 4690 Old Bailey Way, Columbus, Ohio 43213
Beacon Properties, 807 East Broad Street, Columbus, Ohio 43205
Scott E. Rice, Esq. (electronic service)

Matthew D. Warner, Esq. (electronic service)

William J. Rees, Esq. (electronic service)

Clyde Hardesty (electronic service)

Assistant United States Trustee (electronic service)

Kathleen Tourgeman, Courtroom Deputy