Oma McConnell 2nd Bankruptcy - Violation of the Automatic Stay -

 

The Bankruptcy Court in my Bankruptcy Proceedings agreed with me that Bob Atchison had in fact violated the Automatic Stay and as such Ordered the Civil Bench Warrant that he had obtained against me be null and voided. What bothers me to this day, is Bob Atchison paid someone to go to the home of my mother who was living in Michigan and dying of stage four cancer and showed my family the Texas civil bench warrant he obtained and caused to be told to my mother before she died that this civil bench warrant was never going away,  he used that civil bench warrant as a weapon to harm me and to falsely portray himself as being a victim of mine. Mind you, I was unaware of the contents of the Austin Police Report 6-17-2004 where Bob Atchison lied through his teeth and did it with a smile, fake tears and joy in his heart. 

Here is what I wrote and submitted to the court.

BACKGROUND

On March 5, 2012, Oma MConnell ("McConnell") filed a petition for relief under Chapter 7 of the United States Bankruptcy Code, Case Number 2:12-BK-17945-ER. On or about March 19, 2012, Bob Atchison “Atchison" filed an adversary proceeding against McConnell Case Number 2:12-ap-01418-ER.

For months leading up to the filing of McConnell’s petition for relief under Chapter 7 of the United States Bankruptcy Code, Atchison had McConnell placed under surveillance, contacted each and every creditor listed on her petition and falsely portrayed himself as being a victim of hers and solicited their assistance in harming her. Atchison and his spouse, a Robert Mark Moshein and others connected to a website owned and controlled by Atchison had been sending complete strangers to her home to amongst other things harass and stalk her. (Exhibit 1)  Atchison’s idea of discovery is not to marshal evidence to prepare for trial or to streamline the issues in controversy. He appears to view it as a way to inflict maximum harm and discomfort upon his adversary. One of Atchison’s friends, a Patrick O’Connor, threatened to murder her and harm her family and on January 15, 2012 a Los Angeles Superior Court Judge in Case Number MS008270 issued a permanent restraining order against him. (Exhibit 2)

Because Atchison had McConnell under surveillance he and others connected to him got angry when she failed to appear at a Debtor’s examination in another adversary case not involving him (Exhibit 3) took to the web and published numerous false, libellous and defamatory statements concerning her failure to attend this Debtor’s examination. On March 5, 2012, Oma MConnell ("McConnell") filed a petition for relief under Chapter 7 of the United States Bankruptcy Code, Case Number 2:12-BK-17945-ER.

On March 5, 2012 due to McConnell’s failure to attend the scheduled Debtor’s hearing a Los Angeles Superior Court Judge in the city of Lancaster issued a civil bench warrant for her arrest. Learning this had had happened in Los Angeles, California Atchison on the same day instructed his counsel in Texas a Roger B. Borgelt to file a Motion seeking a Bench Warrant against McConnell for her failure to cooperate on a judgment Atchison had obtained against her on September 27, 2005 in the amount of $13,859.99.(Exhibit 3 & 4)

Unaware of the then pending Chapter 7 bankruptcy proceedings in the State of California the Travis County District Court granted Atchison’s Motion (Exhibit 5) whereupon the Los Angeles Sheriff’s Department was notified by phone and by way of a fax sent to them by Atchison and others connected to him demanding the immediate arrest of McConnell. (Exhibit 6)

For his part, Atchison and his spouse, Moshein took to the web and proceeded to publish numerous false, libelous and defamatory statements which would cause and would be reasonably expected to cause a substantial emotional distress to McConnell. (Exhibit 6) As evident by way of Atchison’s Adversary Complaint, Case Number 2:12-ap-01418-ER, he was served with notice of McConnell’s pending Bankruptcy yet neither he or his counsel of record in Texas bothered to inform the District Court in Texas of the pending bankruptcy proceedings in the State of California and at the very least should have asked the court to set it aside pending the disposition of those proceedings. Counsel in Lancaster, California representing the other Adversary case where a civil bench warrant had been issued on March 5, 2012 informed the court that Debtor had filed for bankruptcy and asked the court to set aside its warrant pending the outcome of those proceedings. Neither Atchison or counsel representing him in either Texas or California did this and counsel representing him in California knew Debtor lacks the skills and expertise in law instead of making the warrant known to the Bankruptcy Court should have at the very least asked the Honorable Judge Ernst Robles to set that warrant aside pending the disposition of those bankruptcy proceedings. McConnell’s bankruptcy proceedings were dismissed on 11/13/2013 for failing to attach/file schedules and were terminated on 2/20/2013. (Exhibit 7)

            On March 10, 2014, McConnell filed her second Chapter 7 of the United States Bankruptcy Code, Case Number 2:14-bk-14501-BB and Mr. Atchison filed an Adversary Case Number 2:14-AP-01420-BB. To date, neither he nor his counsel of record in either Texas or in California has bothered to inform to set that warrant aside pending the disposition of these proceedings. Instead it has and continues to be used to torment, humiliate, bully, threaten to name but a few which would cause and would be reasonably expected to cause a substantial emotional distress to Debtor.

LEGAL ARGUMENT

When a bankruptcy petition is filed, the automatic stay provisions of 11 U.S.C. § 362(a) take effect and pre-petition creditors are prohibited from taking certain actions to collect their debts. See, 11 U.S.C. § 362; In re Vitreous Steel Products Co., 911 F.2d 1223, 1231 (7th Cir.1990). The automatic stay is self-executing, effective upon filing of the bankruptcy petition. In re Gruntz, 202 F.3d 1074, 1081 (9th Cir. 2000). The automatic stay is a powerful tool of the bankruptcy courts that prohibits, among other things, “the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the case under this title” [11 U.S.C. §362(a)(1)]; “the enforcement, against the debtor. . . of a judgment obtained before the commencement of the case under this title” [11U.S.C. §362(a)(2)]; and “any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case” [11 U.S.C. §362(a)(6)]. See, In re Lyckberg, 310 B.R. 881, 890 (N.D. Ill 2004). The stay is imposed automatically in part to give the bankruptcy court an opportunity to assess the debtor’s situation and to embark on an orderly course resolving the estate. United States v. Michalek, 54 F.3d 325, 333 (7th Cir. 1995). As stated in, In the Matter of Holtkamp and Holtkamp Farms, Inc., 669 F.2d 505, 508 (7th Cir. 1982):
      The purpose [of the automatic stay] is to preserve what remains of the debtor's insolvent estate and to provide a systematic equitable liquidation procedure for all creditors, secured as well as unsecured, H.R. Rep. No. 595, 95th Cong., 1st Sess. 340 (1977), reprinted in (1978) U.S. Code Cong. & Ad. News 6296-97, thereby preventing a "chaotic and uncontrolled scramble for the debtor's assets in a variety of uncoordinated proceedings in different courts." In re Frigitemp Corp., 8 Bankr. 284, 289 (S.D.N.Y. 1981) citing Fidelity Mortgage Investors v. Camelia Builders, Inc., 550 F.2d 47, 55 (2d Cir. 1976), Cert. Denied, 429 U.S. 1093, 97 S. Ct. 1107, 51 L. Ed/ 2d 540 (1977).

McConnell's debt to Atchison was determined in a judgment entered by the Travis County District Court, on September 27, 2005 in the amount of $13,859.99. After the entry of judgment Atchison did nothing for four years to commence collection proceedings and waited until 2010 after Debtor had filed a Bill of Review in Texas Case Number GN90993478. Debtor’s Bill of Review was denied not on the merits of the cause of action but because of a technicality and on Atchison’s Motion for Summary Judgment.

            Because Debtor’s petition for Bill of Review submitted her to the jurisdiction of the Texas Court, Plaintiff filed post-judgment discovery, requesting the production of documents and a video deposition from Debtor.  Both Atchison and his spouse and others connected to him and a website he owns and controls, the Alexander Palace Time Machine, took to the web and created numerous web postings of how the video deposition was going to be at the home of Atchison and she would have to submit to 8 hours or more of being harassed by Atchison who has stalked and harassed her for years and threatened to then upload that video deposition on to the web via YouTube.  (Exhibit 8) Because of these threats Debtor filed a Motion for a Protective Order in pro se stating amongst other things:

...There is no harm to plaintiff Robert Atchison in a brief continuance of the discovery dates for the purposes of allowing the court to determine the issues presented under the movant’s Bill of Review. This matter went to trial in 2005 and the plaintiff has failed to make any significant attempts to enforce the judgment for the past five (5) years. The plaintiff is now suddenly attempting to harass the defendant and enforce the judgment during the time in which an action to set aside the judgment based upon his fraud is pending. In addition, plaintiff's domestic life partner has published on the web the threat of uploading the video deposition onto YouTube for no other purpose but to harass defendant. If the court does not prevent these proceedings from continuing, plaintiff may be allowed to harass the movant, even though the court will likely overturn the judgment soon hereafter. Movant’s request is merely that the court maintain the status quo and continue any discovery proceedings for a brief period until the conclusion of the proceedings for the Bill of Review. Even if the judgment is ultimately upheld, a brief continuance causes no harm...

            It is important to point out that although the debtor’s Motion was denied by the Honorable Judge Timothy Shulak he had to have two Travis County Sheriff’s officers forcibly remove Atchison’s spouse, Moshein from his court room because of his violent temper as he was screaming inches away from Debtor’s face with clenched fists. Debtor was silent, frozen with fear of Moshein’s verbal abuse that at any moment she would be hit by this man who was screaming and spitting in her face.

            On or about July 29, 2011, a District Court Judge, Judge Harger denied Debtor’s second motion for a protective order and awarded sanctions in the amount of $500 for her failure to comply with Plaintiff’s request for document production and video deposition and awarded sanctions in the amount of $500 to Plaintiff.

            October 17, 2011 Judge Hurley of the Travis County District Court awarded additional sanctions against Debtor at the request of Atchison in the amount of $1,000 for her failure to comply with orders of documentation and a video deposition.

            On March 5, 2012, Atchison had his attorney file a Motion for Debtor’s arrest and on March 26, 2012 unaware of Debtor’s pending bankruptcy proceedings in the County of Los Angeles, California the Honorable Judge Livingston a Travis County District Court Judge issued a civil bench warrant for her arrest.

Unbeknownst to the courts in Texas Debtor was being criminally stalked and harassed on a daily basis by Atchison and those connected to him and his web site called the Alexander Palace Time Machine.  Over 7 libelous sites about Debtor has been created by Atchison and those connected to him and he has engaged in years of ruthlessly aggressive misconduct against Debtor. This abusive campaign continues, unbated, today.  They have pushed the humiliation of Debtor to the point of suffocation.  She has been subjected to numerous, aggressive attempts to intimidate her. She has been targeted at home, her friends & family have been targeted, she has been targeted anywhere that she happens to be. She has been harassed, insulted, surveilled, photographed, videotaped, defamed, threatened to be murdered and humiliated to such a degree as to shock the conscience of any decent, law-abiding person. She hopes at the conclusion of her pending bankruptcy will put an end to Atchison and those connected to him assault upon her privacy, her tranquility and peace of mind, her right to work and her right to freely associate with friends and co-workers, free from intrusion, surveillance, harassment and embarrassment.

    It is McConnell's assertion based on the 2005 trial transcripts, the original invoice document sent to McConnell's business and Affidavits obtained by the Travis County Clerk as well as expert witness Atchison obtained the 2005 judgment by committing the crime of fraud and perjury.

    Prior to McConnell's filing of her petition for relief in bankruptcy court, Atchison as was actively attempting to collect a debt: this is perfectly fine, up until the point a bankruptcy petition is filed and the automatic stay goes into effect. The debtor has the burden of providing the creditor with actual notice of the bankruptcy and, upon so providing, the burden shifts to the creditor to prevent violations of the automatic stay. Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir. 1999). If a creditor is uncertain about the applicability of the automatic stay, the creditor may petition the court for clarification; otherwise, the creditor risks exposure under 11 U.S.C. § 362(k)(1) when he undertakes his own determination of the manner in which § 362(a) affects his actions. Matter of Batala, 12 B.R. 397, 400 (Bankr. Ga. 1981); In re Clark, 49 B.R. 704, 707 (Bankr. Guam 1985); In re Kearns, 161 B.R. 701, 705 (D. Kan. 1993), opinion modified on reconsideration, 168 B.R. 423; In re Gray, 97 B.R. 930, 936 (Bankr. N.D. Ill. 1989). Sanctions should not be imposed where there has been a technical violation of the stay. In re Welch, 296 B.R. 170, 172 (C.D. Ill.2003); In re Zunich, 88 B.R. 721 (Bankr. W.D. Pa. 1988). However, 11 U.S.C. § 362(k) provides monetary relief for willful violations of the automatic stay as follows:

(k) (1) Except as provided in paragraph (2), an individual injured by any willful violation of a stay provided by this section shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.

(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages. (Emphasis added)

     In this case, for McConnell to successfully recover damages under § 362(k)(1), she has the burden of establishing the following elements by a preponderance of the evidence: (1) that a bankruptcy petition was filed; (2) that she is an "individual" under the automatic stay provision; (3) that the creditor had notice of the petition; (4) that the creditor's actions were in willful violation of the stay; and, (5) that she is entitled to a form of relief provided by §362(k); Radcliffe v. International Painters and Allied Trades Industry Pension Fund, 372 B.R. 401, 419-20 (Bankr.N.D. Ind. 2007); In re Gossett, 369 B.R. 361, 375 (Bankr. N.D. Ill 2007); In re Pincombe, 256 B.R. 774, 782 (Bankr. N.D. Ill. 2000) (analyzing § 362(h), the pre-BAPCPA analog to the current § 362(k)(1)); see also In re Sumpter, 171 B.R. 835, 843-45 (Bankr. N.D. Ill. 1994). The critical question is whether the violation was willful. Willfulness under § 362(k) requires knowledge that a bankruptcy petition has been filed, whether through formal notice or otherwise. In re Lyckberg, 310 B.R. 881, 891 (Bankr. N.D. Ill. 2004); In re Fridge, 239 B.R. 182, 190 (Bankr. N.D. Ill 1999).

    Knowledge of the bankruptcy filing is the legal equivalent of knowledge of the stay...violation is willful when a creditor acts intentionally with knowledge of the bankruptcy. In re Welch, 296 B.R. 170, 172 (Bankr. C.D. Ill. 2003). A ‘willful violation’ does not, however, require specific intent to violate the automatic stay. In re Price, 42 F.3d 1068, 1071 (7th Cir. 1994). In the case of Radcliffe v. International Painters and Allied Trades Industry Pension Fund, 372 B.R. 401, 419 (Bankr. N.D. Ind. 2007), this court analyzed the meaning of willful in the context of § 362(k) as follows:
     The term "willful" is one which surfaces in several places in the Bankruptcy Code, and the Court sees no reason to construe that term differently under 11 U.S.C. § 362(h)7 than the term has been construed in other sections of the Code.
     The term "willful" raises its head in 11 U.S.C. § 523(a)(6), which provides that an indebtedness "for willful and malicious injury by the debtor to another entity or to the property of another entity" is excepted from discharge. This term was the subject of the decision of the United States Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L. Ed. 2d 90 (1998). In Geiger, the Supreme Court construed the adjective "willful" in conjunction with its modified noun, "injury", and determined that a "willful injury" is one in which injury is intended by an act of the debtor, rather than one in which an intentional act by the debtor causes injury. In In reWhiters, 337 B.R. 326 (Bankr. N.D.Ind. 2006), this Court construed the evidentiary requirements for establishing a "willful injury" under 11 U.S.C. § 523(a)(6) and determined that the creditor must establish by at least circumstantial evidence that the debtor had a subjective state of mind to commit injury to a property interest of the creditor. As enunciated in Whiters, the subjective intent is focused not on creating a financial hardship for the creditor, but rather on whether the debtor intentionally – as contrasted tone gently or perhaps even grossly negligently – deprived the creditor of a property interest. In the context of this case and in the context of 11 U.S.C. § 362(h), a "willful violation" of the automatic stay of 11 U.S.C. § 362(a) is established by evidence that the creditor intentionally – with knowledge of the pendency of the bankruptcy case – deprived the debtor of a property right or interest in property, or undertook an action against the debtor,precluded by 11 U.S.C. § 362(a).
     A good faith belief in a right to the property is not relevant to a determination of whether the violation was willful (citations omitted). A willful violation does not require a specific intent to violate the automatic stay. The standard for a willful violation of the automatic stay under § 362(h) is met if there is knowledge of the stay and the defendant intended the actions which constituted the violation.
    As stated in In re Halas, 249 B.R. 182, 191 (Bankr. N.D.Ill. 2000): A creditor can be subject to liability under § 362(h) if the creditor engages in conduct which violates the automatic stay, with knowledge that a bankruptcy petition has been filed. In re Roete, 936 F.2d 963, 965 (7th Cir. 1991). Willfulness can be found even if the creditor believed himself justified in taking the actions found to violate the stay. In re Sumpter, 171 B.R. 835, 843 (Bankr.N.D.III.1994). Ignorance of bankruptcy law does not excuse anyone involved in a willful violation. (emphasis supplied).

     If the actions of the creditor are shown to be willful, then actual damages can be awarded if evidence exists which supports the award of a definite amount, not predicated upon speculation. In re Lyckberg, 310 B.R. 881, 891 (Bankr N.D. Ill. 2005). A party must demonstrate the amount of damages it has incurred with reasonable certainty. Id. (citing, Doe v. United States, 976 F.2d 1071, 1085 (7 th Cir. 1992), cert. denied, 510 U.S. 812, 114 S.Ct. 58, 126 L.Ed.2d 28 (1993). Under § 362(k), punitive damages are also available. An award of punitive damages is part a deterrent, i.e.,to cause a change in the creditor’s behavior, and in this context the prospect of such change is relevant to the amount of punitive damages to be awarded. In re Welch, 296 B.R. 170, 172-73 (Bankr. C.D. Ill 2003); In re Riddick, 231 B.R. 265, 269 (Bankr.N.D. Ohio 1999); See also, In re Novak, 223 B.R. 363 (Bankr. M.D. Fla. 1997) (bankruptcy court gauges punitive award based on gravity of creditor's offense, and sets award at level sufficient to ensure that it will punish and deter). But punitive damages are also in part meant to punish egregious conduct. Punitive damages should only be awarded with respect to conduct which is tantamount to “thumbing one’s nose at” the law, the debtor, and the Court. 

    In re Radcliffe, 372 B.R. 401, 422 (Bankr. N.D. Indiana 2007). The factors to be considered in determining whether an award of punitive damages is warranted include the following: the nature of the creditor's conduct, the nature and extent of harm to the debtor, the creditor's ability to pay damages, the level of sophistication of the creditor, the creditor's motives, and any provocation by the debtor.
     In re Radcliffe, 372 B.R. 401, 423 (Bankr. N.D. Ind. 2007); In re Welch, 296 B.R. 170, 172-73 (Bankr. C.D. Ill 2003); In re Flack, 239 B.R. 155, 163 (Bankr. S.D. Ohio 1998); In re Klein, 226 B.R. 542, 545 (Bankr. D. N.J. 1998); In re Wills, 226 B.R. 369, 376 n. 8 (Bankr. E.D. Va. 1998). 
     With the foregoing said, there is no question that McConnell filed a bankruptcy petition and is an individual. Also, Atchison admitted in web postings on his life partner, Rob Moshein's, libelous site....created about McConnell he had received notice of the bankruptcy and the warrant sought and received by Atchison was done with malice not to force McConnell to comply rather to humilate, shame, opress, torment and inflict the maximum amount of harm to her by posting said warrant on one of several libelous blogs created about her by Atchison & Moshein. Neither Atchison or his attorney of record notified the Travis County District Court of McConnell's Chapter 7 in federal bankruptcy court make no mistake this is and continues to be a calculated deception, manipulative move on Atchison's part. 
     This leaves the question of whether Atchison’s conduct violated the stay and whether such violation was willful. Atchison contends his Motion in the Travis County District Court on March 5, 2012 was to get the court to issue a civil bench warrant and having Debtor put into custody– presumably in hopes that this would somehow compel her to pay the debt. Further, it is Atchison's position that he is not the one who issued the warrant; rather the Travis County District Court issued the warrant.

    Issues concerning post-petition execution of petition bench warrants have been addressed in other jurisdictions, and courts have variously analyzed a creditor’s duty vis-a-vis a bench warrant issued by a state court prior to a debtor’s filing of bankruptcy. First, other courts have drawn a distinction between a contempt proceeding which is civil in nature, and one which is criminal in nature and, based on the Bankruptcy Code, have treated each differently.
     The automatic stay is a creature of statute; as such, its scope is governed wholly by the language of 11 U.S.C. §§ 362(a) -(b). The automatic stay of § 362(a) lies unless one of the specific exceptions of § 362(b) is applicable. In re Blarney, Inc., 53 B.R.162, 164 (Bankr. D. Minn. 1985). Proceedings for constructive civil contempt are not among these exceptions. The only one that could conceivably apply is that of § 362(b)(1): "the commencement or continuation of a criminal action or proceeding against the debtor." That provision, obviously, would afford an exception from the automatic stay – but only for formal proceedings for criminal contempt. As the Defendants acknowledge, they obtained the bench warrant to compel the Debtor's attendance before a judge of the state court on their clients' motion to compel discovery.
    Ultimately, they sought to force his attendance at a deposition in litigation between private parties. They did not seek or obtain the warrant to vindicate the state court's authority by punishing him for his past violation of its order. This is the telling distinction between civil and criminal contempt. E.g., Hicks v. Feiock, 485 U.S. 624,632, 108 S.Ct. 1423, 1429, 99 L. Ed. 2d 721 (1988); United States v. United Mine Workers, 330 U.S. 258, 303-304, 67 S.Ct. 677, 701, 91 L. Ed. 884 (1946); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 498, 55 L. Ed. 797 (1911).
     Ultimately, the breadth of § 362(a)(1) drives the conclusion to this issue, as to the automatic stay. Under this provision's language, a debtor in bankruptcy is protected from the "commencement or continuation" of any "judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the [debtor's bankruptcy] case." See In re Panayotoff, 140 B.R. 509, 511 (Bankr. D. Minn. 1992). Section 362(a)(1) clearly encompasses all claims, causes of action, or rights to any form of civil legal relief that are founded on factual bases that arose petition. "Every proceeding of a judicial or quasi-judicial nature is affected." In re Joe DeLisi Fruit Co., 11 B.R. 694, 695 (Bankr. D. Minn. 1981).
    This has to include proceedings for adjudications of civil contempt, where the act in question is the debtor's alleged petition violation of a court order. The automatic stay, then, restrains all persons and entities from initiating civil contempt proceedings against a debtor in bankruptcy. It continues to do so until the bankruptcy court grants relief from the stay, or until the stay terminates by operation of 11U.S.C. § 362(c). In re Atkins, 176 B.R. 998,1005-06 (D. Minnesota 1994).
   The court in In re Goodman, 277 B.R. 839, 841-42 (Bankr. M.D. Geogia 2001) analyzed the distinction between a civil and criminal warrant as follows:
     The automatic stay, which goes into effect upon the filing of a bankruptcy petition, serves as broad protection against interference with the bankruptcy estate. Among its effects is to bar "the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the [bankruptcy] case." 11 U.S.C. § 362(a)(2). However, it does not apply to "the commencement or continuation of a criminal action or proceeding against the debtor." Id. § 362(b)(1). Therefore, the first step in this analysis is to determine whether the arrest warrant in this case was criminal or civil in nature.
     The warrant in this case is in the nature of civil contempt. A contempt order that allows the debtor to purge himself of contempt, as the warrant here does, is civil in nature. In re Maloney, 204 B.R. 671, 674 (Bankr. E.D.N.Y. 1996). Also supporting a conclusion that the warrant is a civil contempt remedy are the facts that "it was initiated by a private party, to coerce the Debtor's compliance with his duty to provide discovery responses." Atkins v. Martinez (In re Atkins), 176 B.R. 998, 1007 (Bankr. D.Minn. 1994).
     As a civil contempt remedy, the arrest warrant would appear to fall within the scope of Section 362(a)(2). However, some courts have held that the civil contempt penalty in question was issued to uphold the dignity of the court and therefore was not stayed in bankruptcy. Stovall v. Stovall, 126 B.R. 814, 816 (N.D. Ga. 1990); Rogers v. Overstreet (In the Matter of Rogers), 164 B.R. 382, 391-92 (Bankr. N.D. Ga. 1994). The warrant in this case specifically states that it is issued for that purpose. But it is also being used as a coercive tool to enforce a judgment, as evidenced by the fact that Debtor could purge himself of the contempt by complying with the ... order. See Siskin v. Complete Aircraft Servs., Inc. (In re Siskin), 231 B.R. 514, 519 (Bankr. E.D.N.Y. 1999). The very fact that it was issued at Atchison's equest also suggests that its purpose is to enforce a judgment. Mitchell Constr. Co. v. Smith (In re Smith), 180 B.R. 311, 319 (Bankr. N.D. Ga. 1995); Atkins, 176 B.R. at 1006.
     Atchison would have this Court dissect the purposes behind the warrant and hold that to the extent it is used to force Debtor to comply with their efforts to enforce a judgment, it is controlled by the automatic stay, but to the extent it issued due to Debtor's disregard for the authority of the superior court, the automatic stay does not apply. However, these purposes are inextricably intertwined and cannot be severed. Debtor may purge his contempt and avoid incarceration by answering interrogatories and paying the attorney fees. Atchison's position would require Debtor either to forego the option of purging contempt or to forego the protection of the automatic stay. Therefore, even if the warrant were based on Debtor's disrespect for the superior court, it is still being used as a collection device. It is Debtor’s belief that Atchison’s arrest warrant is covered by the automatic stay.

    The bankruptcy court has to determine the bench warrant issued by the Travis County District Court, the Honorable Judge Lora Livingston is civil in nature, and is thus subject to 11 U.S.C. §362(a).

     Next, if a warrant is found to be civil in nature, what is a creditor’s duty as to a warrant issued petition, given the automatic stay? In other words, as this issue pertains to the case currently before the court – does the creditor violate the automatic stay by failing to take affirmative action to halt the effect of the bench warrant issued petition? In the matter of In re Baldwin, 1996 WL 33401577 (Bankr. C.D. Ill 1996), the state court issued a petition contempt citation to the debtor for failing to pay child support, and ultimately issued a bench warrant. The debtor subsequently filed bankruptcy and the warrant was never recalled, which resulted in the debtor spending three days in the county jail. The court stated:

     Based on [the] language of 362(a)(1) many courts have emphasized the obligation incumbent upon creditors to take the necessary steps to halt or reverse any pending State Court actions or other collection efforts commenced prior to the filing of a bankruptcy petition, including garnishment of wages, repossession of an automobile, foreclosure of a mortgage or a judgment lien and, thereby, maintain, or restore, the status quo as it existed at the time of the filing of the bankruptcy petition. (Citations.) This responsibility is placed on the creditor and not on the debtor or the trustee as the defendants suggest because “[t]o place the onus on the debtor, . . . to take affirmative legal steps to recover property seized in violation of the stay would subject the debtor to the financial pressures the automatic stay was designed to temporarily abate, and render the contemplated breathing spell from his creditors illusory”. Further, it would result in a significant waste of judicial resources and “the automatic stay at 11 U.S.C. § 362 would be frustrated if the debtor had to involve the court in each situation as here. It would continuously involve the court in pointless and needless litigation. In the facts of the case it should not be the court that should stop the snowball.” (Citation.)

     The court in Miller, [22 B.R. 479 ] at 481 notes, The courts have been quick to realize that creditor inaction can often be as disruptive to the debtor as affirmative collection efforts. (Citation.) In recognition of this problem, creditors have been required, when necessary, to take affirmative steps to restore the status quo at the time of the filing of the petition for relief. The court finds the defendants argument that the Sheriff had “constructive possession” of the property and acted pursuant to the order of the Common Pleas Court and not the order of the defendants unavailing. The provisions of the automatic stay place the responsibility to discontinue any pending collection proceedings squarely on the shoulders of the creditor who initiated the action. The Elder court [12 B.R. 491 (Bankr, M.D. Ga. 1981)] aptly stated that the “[c]reditor sets in motion the process. The creditor is in the driver's seat and very much controls what is done thereafter if it chooses. If the “continuation” is to be stayed, it cannot choose to do nothing and pass the buck to the garnishee or the court in which the garnishment is filed to effectuate the stay. Positive action on the part of the creditor is necessary so that “continuation” is stayed. (Citation.)     In re Baldwin, 1996 WL 33401577 *3

     The foregoing analysis is a prevailing theme in other bankruptcy courts as well. For instance, in In re Daniels, 316 B.R. 342 (Bankr. D. Idaho 2004), a bench warrant was issued pre- petition for the debtor’s failing to turnover tax returns and the creditor’s refusing to recall the bench warrant. The court flatly rejected the creditor’s contention that it was the state court which issued the bench warrant such that it was the only one who could quash it. 
      
    When McConnell filed for bankruptcy relief, any further proceedings in the state court action were unconditionally stayed by operation of federal law. That would obviously include any efforts to enforce the state court's arrest warrant. The issue raised in this case is whether, in failing to take steps to stop those proceedings, Atchison violated the automatic stay. Without deciding whether a state court may ever punish a debtor for civil contempt for violating its orders in a collection action after the debtor files a bankruptcy petition, the Court must decline in accepting Atchison's strained view of the issues. The simple facts suggest otherwise.
    

 Here, Atchison initiated the process that culminated in the state court issuing a warrant for McConnell's arrest. Atchison sought information about McConnell's financial affairs. But when she failed to travel to Austin, Texas to produce some of the requested information and attend a video deposition inside of his home with the threat it would be uploaded onto YouTube Atchison asked the state court to put her in jail. It was Atchison that sought entry of a warrant for her arrest. In other words, this entire scenario was created, produced and directed by Atchison, not the state court. 
     Atchison’s strategy in this case is nothing new nor is it based upon anything distinctive about McConnell's conduct. If McConnell is arrested and bail posted, she would have to ask the state court to give it the cash in satisfaction of its claim.  At this point, it is clear Atchison no longer wants just information; he wants money. To avoid incarceration, Debtor will be required to post bail, in cash, in the exact amount of the judgment. The question for Debtor becomes "should I pay the judgment or should I go to jail?" 
     It must be seen to this Honorable Court, it is clear that Atchison's efforts to get McConnell put behind bars were "calculated to enforce a money judgment, pursue a 'collection motive,' [and] to harass" Debtor. In re Lincoln, 264 B.R. 370, 374 (Bankr. E.D. Pa. 2001). Requiring her to either pay up or lose her freedom is a choice the Bankruptcy Code was designed to eliminate.
Atchison's use of the state court contempt proceedings was in furtherance of its collection action. And even though the arrest warrant was issued, maintenance of that collection action in the form of the potential enforcement of the arrest warrant was prohibited by operation of the automatic stay once the bankruptcy case was commenced. Eskanos & Adler, P. C., 309 F.3d at 1215 ("The maintenance of an active collection action alone adequately satisfies the statutory prohibition against 'continuation' of judicial actions."). See also Guariglia v. Cmty. Nat'l Bank & Trust Co. (In re Guariglia), 382 F. Supp. 758, 761(E.D.N.Y. 1974) (fording that the creditor's post-judgment contempt action against the debtor for failing to answer interrogatories was, in reality, a collection method when the fine imposed was in the exact amount of the judgment).

    In re Daniels, 316 B.R. at 348-49.The Daniels court then went a step further and found that creditors have a broad duty to take steps post-petition to undo previous collection activity:

Here, after Debtor filed for bankruptcy, Debtor asked Creditor to act to protect him from arrest. Creditor refused. Instead, Creditor sought to shift the duty to quash the warrant to Debtor, the state court, or to the police by asserting it was the "court's warrant," and by telling Debtor it had no responsibility to withdraw the warrant. 
     The past decisions of bankruptcy court clearly criticize this attitude. In In re Johnson, 262 B.R. 831, 847 (Bankr. D. Idaho 2001), the sheriff seized literally all of the debtor's personal property at the request of a creditor before the debtor filed for bankruptcy. After bankruptcy, the creditor insisted that it was the debtor's burden to secure the release of the property to debtor from the sheriff. When the debtor challenged the creditor's position in bankruptcy court, it held that the creditor, not the sheriff, bore the duty to secure a stay in the state court proceedings and to restore the debtor's possession of the seized property. Johnson, 262 B.R. at 847. The bankruptcy court explained:
   Creditors and their counsel are not allowed to sit by and watch the litigation they have commenced proceed by shifting responsibility to local authorities charged with collecting judgments obtained through their efforts . . . 'The provisions of the automatic stay place the responsibility to discontinue any pending collection proceedings squarely on the shoulders of the creditor who initiated the action . . .' Id. at 350.
   Many parallels can be drawn between the foregoing cases and the matter pending before the Court. Without question, the bench warrant issued by the Travis County Court is civil in nature. It was issued at Atchison’s request and is a result of McConnell's failure to appear in court Let’s be clear: the judgment entered against the McConnell was for $13,899.00 and the order issuing the warrant set the cash bond in the amount of $2,000. There is no doubt that if this amount was paid, the warrant would be recalled. Furthermore, there is nothing in the record, or on the face of the warrant itself, which remotely indicates that it was issued to uphold and preserve the “dignity” of the Travis County Court. It was not the court who wanted McConnell to appear – it was Atchison. 
   More disturbing is that McConnell, even after  filing bankruptcy, is at risk – even during something as mundane as a routine traffic stop – of being arrested, placed into custody, and then forced to post a cash bond in the amount of a petition debt in order to secure her release. More pointedly, as actually occurred, McConnell was at risk of being arrested on a state court “collection device” bench warrant during her appearance at her §341 meeting, an appearance mandated by the federal law of the Bankruptcy Code. 
      This is completely contrary to the purpose of the Bankruptcy Code and has the effect of rendering § 362(a) ineffective as to McConnell's debt. The circumstances in this case raise the issue of whether a creditor, or an attorney, who has notice of a bankruptcy filing and had previously caused a bench warrant to be issued in order to collect a debt, has an affirmative duty to request that the warrant-issuing court recall the warrant. The court should determine that this affirmative duty should be imposed. Although not developed by Atchison's counsel as a theory of liability, pursuant to Fed. R. Bank. P. 7054(a)/Fed. R. Civ. P. 54(c), the court should determine that Atchison violated 11 U.S.C. § 362(a) by his failure to take any steps to recall the bench warrant upon receipt of notice of McConnell’s filing of her bankruptcy case.
    The court should make a judicial ruling that Atchison’s deception has been calculated as he had been notified of McConnell's filing in bankruptcy proceedings and his failure to take action to seek to “recall” the bench warrant violated 11 U.S.C. §§362(a)(1), 362(a)(2) and 362(a)(6).

            Upon finding wilful violation of the automatic stay, the court may award actual damages, which include monetary damages “to compensate a creditor’s violation of the automatic stay for purpose of causing “a change in the creditor’s behaviour...” In re. Sands, No. 10-12105C-136, 2011 WL 3962491at *3 (Bankr. M.D.N.C. April 1, 2011) (quoting In re Shade, 261 B.R. 213, 216 (Bankr. G.D. III. 2011)).

Section §362(k)(1) mandates that an individual injured by a willful stay violation recover actual damages, including attorney’s fees and costs. See In re. Thorpe, No. 2011 WL5909403 at *2; In re. Kirkbride, 2010 WL 4809334 at *5; Dawson v. Wash. Mut. Bank (In re: Dawson), 390 F, 3d 1139, 1148 (9^th Cir. 2004).

According to the Ninth Circuit:

A party seeking relief under the automatic stay provision must have standing in two respects: constitutional standing and standing under the Bankruptcy Code. City of Farmers Branch v. Pointer (In re Ppinter), 952 F. 2d 82, 85 (5^th Cir.) , cert. Denied sub non, Pointer v. Carrollton-Farmers Branch Indep. School Dist., 505 U.S. 1222, 112 S. Ct. 3035 (1992).

McConnell’s attached Affidavit states amongst other things that the civil bench warrant obtained against her she has and continues to suffer humiliation to the point of suffocation, stress, anxiety and fear that have resulted in severe headaches, including migraines with debilitating pain due to the surveillance & constant harassment of Atchison and those connected to him and his web company, Pallasart and its Alexander Palace Time Machine. Additionally, as a result of these activities she has suffered an extreme gagging nausea, and has developed a hyper-sensitivity to light and have been unable to eat or concentrate due to headaches. Furthermore, when she filed for bankruptcy she was assured the bankruptcy petition stayed such actions by creditors.

WHERFORE DEBTOR PRAYS:

1)      Actual damages in the amount of $1,000.00

2)      Punitive Damages as Atchison willfully and maliciously violated the automatic stay an award of $10,000.00 

3)      And further relief as this Court deems just and proper.

Respectfully submitted:

____________________________

Ms. Oma McConnell

Defendant, Appearing in Propria Persona

AFFIDAVIT OF OMA McCONNELL

            Before me the undersigned notary on this personally appeared Oma McConnell, the affiant, a person whose ideintity is known to me. After I administered an oath, affiant testified:

            My name is Oma McConnell. I am over 18 years of age, of sound mind and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

            Since 2011, when I obtained a restraining order against one of Mr. Atchison’s friends, Patrick O’Connor, he and others connected to me have had me under video surveillance and caused to be published on the web where I was living. In or about 2004, his web design company, Pallasart Web Design, its employee & agent caused to be published on a Russian Government website my US Social Security number.

On or about March 5, 2012, I failed to appear at a debtor’s examination on an unrelated case that does not involve Mr. Atchison I filed a petition for relief under Chapter 7 of the United States Bankruptcy Code, Case Number 2:12-BK-17945-ER. On or about March 19, 2012, Bob Atchison “Atchison" filed an adversary proceeding against McConnell Case Number 2:12-ap-01418-ER.

Because I was under surveillance and failed to appear at a debtors examination in Lancaster, California and my filing of a petition for relief under Chapter 7 of the United States Bankruptcy Code, it made Mr. Atchison and others connected to him angry and on the same day, March 5, 2011, instructed his attorney in Texas to submit a Motion for my immediate arrest,

Mr. Atchison had been served with notification from the U.S. Bankruptcy Court of my petition as evident by way of his Adversary case which was filed on March 19, 2012. On March 26, 2012 unaware of the then bankruptcy proceedings in Los Angeles, California the Honourable Judge Livingston of the Travis County Court issued a warrant for my arrest. At no time during the course of those proceedings did either Mr. Atchison or counsel representing him in both the state of California and Texas either asked the civil warrant to be recalled pending the disposition of those bankruptcy proceedings. Instead counsel representing him in California would use against me in legal briefs he submitted to the court on behalf of his client and his client proceeded to cause the warrant to be published onto his spouse’s libellous site about me. He  then proceeded to inform me by way of the numerous web postings, that I should ‘dance for joy’ including but not limited to that he intended to pay for ads in various newspapers in California, that he would pay for the costs involved in extraditing me to the state of Texas and a faxed copy of the civil bench warrant had been faxed to the Los Angeles Sheriff’s department in Palmdale.

When I filed for bankruptcy she was assured the bankruptcy petition stayed such actions by creditors. Both Mr. Atchison and his spouse and others connected to them have created more than 5 libellous sites about me and have thoughtfully orchestrated a campaign of lies and deceit directed at every aspect of my life. Using the unprecedented power of publication via the internet, Mr. Atchison, a web designer and internet sophisticated by trade, has utilized Pallasart’s website to publish the defamatory statements to millions of prospective readers. This well planned and methodical campaign of defamation launched by Mr. Atchison, his web design company and others connected to him and his web company has been in full swing for more than five years. The various defamatory statements created by Mr. Atchison and those connected to him  are republished and communicated to the general public on a virtually daily basis and are available to millions of viewers at once, twenty four hours a day, 365 days a year. The Internet is the most effective tool of the unscrupulous libeler yet devised and Mr. Atchison and his spouse are  skilled at utilizing its power to broadcast their lies. These defamatory statements constitute statutory libel and statutory slander which tend to injure me and have exposed me to public hatred, contempt and ridicule.

Both Mr. Atchison and his spouse and others connected to them use a computer in a different State other than in California and create various accounts under a fictitious name on Twitter, Blogger, Classmates.com and Facebook pretending to be someone else in order to torment, stalk, harass, humiliate and embarrass me to name but a few. I have informed them that by doing this each of them are violating Blogger's Content Rules and its term of service agreement and the term of service agreement with Facebook and Twitter and Classmate.com. Facebook deleted 2 accounts, a Miriam Kedem and Rebecca Jordan as these two accounts lied when they created those accounts to specifically use to harm me.

In furtherance of the conspiracy, and to accomplish the object of the conspiracy, Mr. Atchison committed, caused to be committed, and aided and abetted various overt acts in Los Angeles County, within the Central District of California and elsewhere intentionally accessed and caused to be accessed a computer used in interstate and foreign commerce some whose servers are located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate communication, obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress all of which is in violation of 18 USC 1030 (a)(2)(c)(2)(b)(2). Further and still pleading, these same individuals have made various web posting directed to me (victim) with the intent to harass and intimidate used an interactive computer service, electronic communication system of interstate commerce and other facility of interstate and foreign commerce to engage in a course of conduct that caused, attempted to cause and would be reasonably expected to cause a substantial emotional distress. All in violation of Title 18, United States Code, Section 2261 A(2) (b).

I have informed Mr. Atchison and others connected to him that they are breaking both state and federal laws and they tell me call me filthy names and tell me that I don’t know what I am talking about... In fact they have boasted on the web that I am nothing, law enforcement will do nothing to help me because I am nothing. I am called an “IT” as if I am a thing and not a human being. When I read these words and other words I am devastated. I am a human being. As a human being and a citizen of the United States of America I am deserving of equal protection under the laws governing the United States of America and the State of California.

I have been subjected to numerous, aggressive attempts to intimidate me. I have been targeted at home, my friends & family have been targeted, I have been targeted anywhere that I happen to be. I have been harassed, insulted, threatened, threatened to be murdered, surveiled, photographed, videotaped, defamed and humiliated to such a degree as to shock the conscience of any decent, law-abiding person. Because of the civil bench warrant that is constantly thrust in my face and in the face of the public and the above-aforementioned, I have suffered stress, anxiety and fear that have resulted in severe headaches, including migraines with debilitating pain due to the surveillance & constant harassment of Bob Atchison and those connected to him and his web company, Pallasart and its Alexander Palace Time Machine. Additionally, as a result of these activities I have suffered an extreme gagging nausea, and I have developed a hyper-sensitivity to light and have been unable to eat or concentrate due to headaches.

Additionally, I have a serious health problem, I have a cyst located behind my left eye and when I am overwhelmed with stress related to the warrant and constant harassment on the web and such by Mr. Atchison and others connected to him, I have to lay in a dark room, in bed, because my eye feels like it is going to burst and my head is pounding with a severe migraine.  When Mr. Atchison told me to ‘dance for joy’ when he obtained the warrant for my arrest and sent it to third parties including to Russia, to members of my faith as an Orthodox Christian, as if it was a banner for him to hide behind that validated him, I wanted to die. A feeling of helplessness and depressive thoughts that perhaps Bob and his friends are right, I am nothing, because I am nothing, no one cares, I have no legal rights. I have to keep reminding myself, I am a human being and by birth right I am a U.S. citizen and deserve to be protected under the laws governing both the State and Federal Court.

Bob Atchison and others have published on the web that there is nothing I can do about this warrant from Texas because it was the court not Mr. Atchison who wanted it and I should simply turn myself in to the police station.   I am not a skilled attorney, I lack the skills and expertise of that of an attorney and I personally do not have the money to pay for one but I am deserving to be protected under the laws governing the U.S. Bankruptcy Court and at the very least either Mr. Atchison or counsel representing him had the moral and ethical responsibility to have requested the warrant be recalled.

.......

The continuous and aggressive invasion of privacy to which I have been subjected, and the related personal and psychological abuse, has and continues to be, a cause of great distress to me. It has cost me my privacy, my peace of mind, and I believe it is calculated to damage my relationship with my family and friends and others so as to injure me. Because I have been subjected to surveillance and harassment that is habitual, sadistic & categorical, I live in fear that Mr. Atchison or someone else connected to him will have me killed.

“Further affiant sayeth not. “