Opinion
Case No. 19-52868
2022-09-21
IN RE: Leonard NYAMUSEVYA, Sr., Debtor.
Kara Czanik, Cincinnati, OH, Counsel for CitiMortgage, Inc. Harry W. Cappel, Cincinnati, OH, Counsel for CitiMortgage, Inc.
Kara Czanik, Cincinnati, OH, Counsel for CitiMortgage, Inc.
Harry W. Cappel, Cincinnati, OH, Counsel for CitiMortgage, Inc.
MEMORANDUM OPINION
John E. Hoffman, Jr., United States Bankruptcy Judge
I. Introduction
The automatic stay freezes the status quo and puts a halt to collection efforts. So too does the postponement of a foreclosure sale. It therefore follows that postponing a foreclosure sale does not violate the automatic stay. Property inspections conducted to ensure the good condition of the property also do not violate the automatic stay. Leonard Nyamusevya, Sr., the Chapter 7 debtor, disputes both points. He moves to hold CitiMortgage, Inc. liable for violating the automatic stay ("Stay Violation Motion") (Doc. 77) based on property inspections and the postponement of a foreclosure sale, all done without any effort to collect from him. For the reasons explained below, the Court concludes that CitiMortgage did not violate the automatic stay.
II. Jurisdiction and Constitutional Authority
The Court has jurisdiction to hear and determine this matter under 28 U.S.C. § 1334(b) and the general order of reference entered in this district in accordance with 28 U.S.C. § 157(a). This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) & (O). The matter before the Court is a motion to hold a party liable for purportedly violating the automatic stay, and it therefore "stems from the bankruptcy itself," Stern v. Marshall , 564 U.S. 462, 499, 131 S.Ct. 2594, 180 L.Ed.2d 475 (2011), meaning there is no constitutional impediment to the entry of this order. See In re Johnson , 580 B.R. 766, 769 (Bankr. S.D. Ohio 2018) (holding that constitutional authority existed to enter a final order on a claim for violating the automatic stay).
III. Procedural History
While this matter is simple at its core, it has a long history. The reason for this is because Nyamusevya is an "exceedingly litigious borrower." Nyamusevya v. CitiMortgage, Inc. (In re Nyamusevya) , No. 19-8027, 2021 WL 193965, at *1 (B.A.P. 6th Cir. Jan. 20, 2021). For about nine years before Nyamusevya filed his bankruptcy case on May 1, 2019 ("Petition Date"), he litigated with CitiMortgage in a foreclosure action it had commenced against him in the Franklin County Court of Common Pleas as to real property located at 2064 Worcester Court, Columbus, Ohio 43232 ("Property"). Certified Docket for Franklin County Clerk of Courts Case No. 10 CV 013480 ("Foreclosure Action"), CitiMortgage Ex. A at 1 (stating that the Foreclosure Action was commenced by CitiMortgage against Nyamusevya on September 14, 2010). In addition to the nine or so years that the Foreclosure Action was pending before the Petition Date, it was delayed for several months after the Petition Date due to the automatic stay. CitiMortgage was cleared to pursue the Foreclosure Action when the automatic stay terminated with respect to the Property upon its abandonment by the Chapter 7 trustee in October 2019. Nyamusevya , 2021 WL 193965, at *3. Once Nyamusevya received his discharge, the discharge injunction protected him, but "it did not protect the Property to the extent of CitiMortgage's lien." Id . at *5. "In other words, [Nyamusevya's] discharge preclude[d] CitiMortgage from collecting its debt directly from [Nyamusevya] himself (in personam ) but d[id] not prevent CitiMortgage from liquidating the ... Property to satisfy the debt (in rem )." Id. Despite this, he continued his litigious ways in the state court after the stay was lifted. And so, all together, "[r]emarkably, [Nyamusevyua] ... managed to resist foreclosure for more than a decade." Id . at *2.
Nyamusevya filed a Chapter 13 case but later voluntarily converted the case to Chapter 7. See Debtor's Mot. for Conversion from Chapter 13 to Chapter 7 (Doc. 59).
In addition to defending against the Foreclosure Action in the state court, Nyamusevya went on the offensive in his bankruptcy case. He first sought a determination that the mortgage lien of CitiMortgage on the Property was wholly unsecured and void (Doc. 22). He did so even though his position was "contrary to the conclusions of the Ohio courts." Nyamusevya , 2021 WL 193965, at *1, 2. About two months after the Petition Date he requested an expedited hearing (Doc. 40) on his motion to void CitiMortgage's lien. Motions to void liens do not typically require expedited relief, but Nyamusevya alleged in his motion for an expedited hearing that CitiMortgage was violating the automatic stay. The Court therefore held a status conference to determine whether an expedited hearing was warranted. During the status conference, Nyamusevya stated that a foreclosure sale of the Property ("Sheriff's Sale") had been scheduled for July 5, 2019 and that employees or agents of CitiMortgage had been coming onto the Property in connection with the scheduled sale. Tr. of June 27, 2019 Status Conference (Doc. 80) at 5–7. Counsel for CitiMortgage responded that the Sheriff's Sale had been cancelled but also stated that he did not know whether employees or agents of CitiMortgage had come onto the Property. Id . at 6–7. To address that allegation, a follow-up status conference on the expedited hearing motion was held the next day. During the follow-up status conference, counsel for CitiMortgage again represented that the Sheriff's Sale had been cancelled and provided documents to that effect. Tr. of June 28, 2019 Status Conference (Doc. 82) at 3–6. Counsel for CitiMortgage also represented that the servicer of the CitiMortgage loan had conducted an inspection of the Property after the Petition Date by taking photographs from across the street, but that the servicer had not contacted Nyamusevya or entered onto the Property while conducting the inspection. Id . at 6–7. Because no emergency warranting immediate relief existed, the Court denied the expedited hearing motion (Doc. 45).
Continuing on the offensive, Nyamusevya filed the Stay Violation Motion. Just ten days before the hearing on the Stay Violation Motion ("Hearing"), Nyamusevya moved for summary judgment on his claim against CitiMortgage for its alleged violation of the automatic stay ("Summary Judgment Motion") (Doc. 240). The Court denied the Summary Judgment Motion for two reasons: (1) it was untimely and (2) it did not establish that Nyamusevya was entitled to judgment as a matter of law. See Order on Debtor's Motion for Summary Judgment (Doc. 243). But because Nyamusevya filed the Summary Judgment Motion before the deadline that the Court set for filing pre-Hearing briefs, the Court treated the Summary Judgment Motion as his pre-Hearing brief. See id . at 9.
The hearing on the Stay Violation Motion was rescheduled several times for various reasons. The original hearing was canceled due to the spread of COVID-19 in Ohio (Doc. 166). The Court entered an order rescheduling the hearing on the Stay Violation Motion to be held virtually (Doc. 179), but Nyamusevya moved to postpone the hearing in order to have time to conduct more discovery (Doc. 198), and the Court entered an order rescheduling the hearing (Doc. 199) to afford him time to seek that discovery. Then, during a status conference, Nyamusevya argued that the hearing on the Stay Violation Motion should be further postponed to afford him additional time to conduct yet more discovery. The Court ruled that there was no good cause to further delay the hearing on the Stay Violation Motion, but a scheduling conflict arose, leading to the hearing being rescheduled again. Nyamusevya complained about the timing of the rescheduled hearing, so during a status conference the Court stated that it would enter an order rescheduling the hearing on the Stay Violation Motion for April 18, 2022, the date on which Nyamusevya and counsel for CitiMortgage and its witnesses all said that they would be available. See Order (A) Scheduling Hearing to Determine Whether CitiMortgage, Inc. Violated the Automatic Stay and (B) Establishing Related Deadlines (Doc. 224).
Before the Hearing, Nyamusevya filed three notices to supplement the record with exhibits (Docs. 235, 236 and 239). CitiMortgage filed an objection to the notices (Doc. 241) because Nyamusevya had not filed an exhibit list by the deadline established by the Court in its order scheduling the Hearing. Two of the notices to supplement the record (Docs. 235 and 236) were filed by the deadline, so the Court considered those notices to be timely filed exhibit lists as to the exhibits identified in those notices, subject to any other objections that CitiMortgage had. The documents in those notices were (1) a Preliminary Judicial Report and Supplemental Final Judicial Report, (2) a printout from the Franklin County Sheriff's office showing a sale date for the Property of July 5, 2019; and (3) CitiMortgage's Exhibits A through G (identified further below). The third notice (Doc. 239) was filed after the deadline, and the exhibits identified in that notice therefore were excluded. The excluded exhibits were photographs of the Property that appear to have been taken from the street. It is unknown who took the photographs, but it would appear that Nyamusevya took them.
During the Hearing, the Court heard the testimony of Nyamusevya on his own behalf, and three witnesses testified for CitiMortgage—Sherry Dufford, Carson Rothfuss and Jessica Gonzalez. Dufford is an account clerk supervisor in the Franklin County Sheriff's Office real estate division, which handles properties that are the subject of a sheriff's sale; Rothfuss is the attorney with Lerner, Sampson & Rothfuss ("Lerner Sampson"), the firm that was handling the Foreclosure Action; and Gonzalez is a senior asset analyst with Cenlar FSB, the loan servicer that hired a company to conduct inspections of the Property.
A transcript of the Hearing is docketed at Doc. 265 ("Hr'g Tr.").
CitiMortgage's Exhibits A through G were admitted into evidence without objection during the Hearing. CitiMortgage's exhibits were as follows:
• Exhibit A—Certified Docket of the Foreclosure Action.
• Exhibit B—Email correspondence from May 1, 2019 to May 3, 2019, between Dufford and Christin Brittingham of Lerner Sampson regarding postponement of the Sheriff's Sale.
• Exhibit C—Email correspondence of May 3, 2019 from Dufford to Brittingham on the cancellation of the Sheriff's Sale due to Nyamusevya's bankruptcy filing.
• Exhibit D—Notice of Bankruptcy/Suggestion of Stay filed by Nyamusevya in the Foreclosure Action on May 1, 2019.
• Exhibit E—Motion to Stay and to File the 05/01/2019 Notice of Bankruptcy/Suggestion of Stay filed by Nyamusevya in the Foreclosure Action on May 2, 2019.
• Exhibit F—Sheriff's Return of Order of Sale filed in the Foreclosure Action on May 3, 2019.
• Exhibit G—Inspection reports for property inspections ordered from May 2019 through March 2020.
Nyamusevya relied on CitiMortgage's Exhibits B, C and G. Also admitted into evidence was a version of Exhibit C that Nyamusevya marked to show purported redactions. Hr'g Tr. at 37–40. In addition, at his request, the Court took judicial notice of CitiMortgage's objection to confirmation of his Chapter 13 plan (Doc. 41), in which CitiMortgage "represent[ed] to [the Court] that the foreclosure was postponed." Hr'g Tr. at 19.
IV. Background
Although the history of this matter is long, there are just a few salient facts. This is because Nyamusevya, who has the burden of proof, presented very little evidence. He first testified only that:
[A property inspection report] shows exactly what the agent on my property did, and it shows the close range of how they shoot the picture and also it shows some of the action that they took on my property, which intimidated me, made me feel very bad, like I don't own the title to that property. I was depressed.
When somebody come on your property and spray an X on your vehicle, it affect you. It affect you mentally. It affect you physically.
I don't have much to say on this. I'm done.
Hr'g Tr. at 14–15.
This testimony refers to the inspections conducted at the Property by the company hired by Cenlar. Nyamusevya contends that the photographs in the reports "show[ ] the close range of how they shoot the picture," suggesting that the photographs must have been taken by someone standing on the Property. Based on the Court's review of the photographs, it appears that the photographs were taken from the sidewalk or from across the street. Property Inspection Reports, Ex. G at 4, 8, 13, 17, 21, 25, 29, 33, 37, 41. That said, most of the property inspection reports state that the electric, water and gas were on at the Property. Property Inspection Reports, Ex. G at 1, 6, 10, 15, 19, 23, 27, 31, 35, 39. Nyamusevya points out that the inspectors would have had to step foot on the Property in order to be able to report that utilities were on at the Property. Summ. J. Mot. at 14. It is a valid point, at least with respect to gas and water. When asked about this, Gonzalez could say only that she was not there when the inspections were conducted. Hr'g Tr. at 79. Based on the inspection reports, the Court will assume that the inspectors came onto the Property to conduct their inspections.
There is no credible evidence, however, that any of these inspectors spray-painted an X on Nyamusevya's vehicle. Nor is there any credible evidence that the inspectors contacted Nyamusevya or did anything to harass or intimidate him. Nyamusevya's testimony to the contrary—that actions the inspectors took on the Property "intimidated" him—is not credible. Hr'g Tr. at 14. The inspection reports reflect that the inspections were conducted as "No Contact," which according to Gonzalez means that "there is no contact with the homeowner." Id . at 75. The purpose of the inspections is to ensure that the Property is "secure and in good condition." Id . at 69. And Gonzalez said "there were no collection efforts made through the property inspections." Id . at 77. Although Cenlar "accepts and applies payments made by borrowers," id . at 69, Nyamusevya does not allege that Cenlar tried to collect payments from him after the Petition Date.
There is one dark and grainy picture on page 17 of Exhibit G (the inspection reports) that shows a car up on blocks that may have an X on its side, but the quality of the photograph is such that it is difficult to make out whether the X is painted on the vehicle, or a mark on the photograph.
After the Court asked Nyamusevya if he had any documentary evidence, he testified further as follows:
In [CitiMortgage's Exhibit B] you will see that there is the conversation between [Lerner, Sampson & Rothfuss], Christin Brittingham and the sheriff agent Sherry Dufford. That communication is there. Personally, I know there is no ground for them to postpone the foreclosure, but they made up somehow to show there being a communication to postpone the foreclosure, and it is written, it's a material fact. I did not even want to focus on that one much, because they were kind of away, I did not see them on my property, but what triggered everything is when I see people on my property[.]
I am offering that correspondence to show that after the automatic stay was effective, they postponed the foreclosure and that triggered people on my property, people trespass my property. That triggered the public to come on my property. It was uncontrollable. I could not even drink water in my house. All the time I will be watching. I can tell you even 7:00 p.m. I would see people coming on my property. I can see Mexican. I can see Hispanic. I can see people from everywhere, to the point I wonder if really the automatic stay does work, filing for bankruptcy, if it does work.
I'm sitting in my house. Take a look at that house. It is my house. They play game. You interpret one of the exhibit I show you, that you are dealing with people who are lying to you. You interpret it differently.
....
You gave me an order that had automatic stay. Then you gave me an order of discharge. The order of discharge affect what they have already in state court. Because they violate the law, I did not mean that the final—supplemental final judicial report to say that it is having anything to do with this hearing today, but I was just showing you what is going on, who are the people in front of you, and what they can do.
The order of discharge you gave me buried in the state court. Why? They
went to lie over there, and you think that does not show they wanted the automatic stay. They did not want the automatic stay. I was just showing you for information[.]
Id . at 15–17.
This is the sum total of Nyamusevya's testimony. Even if everything Nyamusevya said were true, all it would establish is that the Sheriff's Sale was postponed, that an unidentified person may have spray-painted an "X" on Nyamusevya's vehicle at an unknown time, that various people may have come onto the Property after the Petition Date and that agents of Cenlar conducted inspections of the Property, possibly while on the Property. The testimony of CitiMortgage's witnesses elaborated on the postponement—and ultimate cancellation—of the Sheriff's Sale:
• The Sheriff's Sale was originally scheduled for May 3, 2019. Id . at 46.
• Nyamusevya commenced his bankruptcy case at 3:14 p.m. on May 1, 2019.
• At 3:57 p.m. on May 1, 2019, Lerner Sampson's Brittingham asked Dufford of the Sheriff's office to postpone for 60 days the Sheriff's Sale that was set for May 3, 2019. Ex. B at 2. According to Rothfuss, Brittingham's request to postpone the Sheriff's Sale was "at the direction of [CitiMortgage], unrelated to the bankruptcy." Hr'g Tr. at 48. Neither Rothfuss nor any other witness explained the reason for CitiMortgage's request to postpone the Sheriff's Sale. Whatever the reason, the fact is that CitiMortgage sought to postpone the Sheriff's Sale within less than an hour after Nyamusevya commenced his bankruptcy case.
• At 8:33 a.m. on May 2, 2019, Dufford advised Brittingham that the Sheriff's Sale could be postponed and offered two new dates for the sale, June 28 and July 5. Ex. B at 2.
• At 8:35 a.m. on May 2, 2019, Brittingham opted for July 5 as the new sale date. Id . at 1–2.
• At 6:53 a.m. on May 3, 2019, Dufford advised Brittingham that Nyamusevya had filed a bankruptcy case and that she therefore would "have to pull this from the postponed sale date of 7/05/19." Ex. C at 1. By "pull this from the postponed sale date" Dufford meant cancel the Sheriff's Sale. Tr. at 32. Nothing more needed to be done to effectuate the cancellation. Id . at 33. So, less than 40 hours after the Petition Date, the Sheriff's Sale was cancelled.
• A Sheriff's Return of Order of Sale noting Nyamusevya's bankruptcy case was entered on May 3, 2019. Ex. F; Tr. at 33–34.
V. Legal Analysis .
A. CitiMortgage's Email Evidence
Before addressing the alleged stay violations, a preliminary matter must be addressed. Nyamusevya contended during the Hearing that certain of the emails to which Dufford was a party were redacted. He posited the redactions based in part on white space in the emails, including space between the "From" and Dufford's name. Hr'g Tr. at 37–40.
Rule 901(a) of the Federal Rules of Evidence ("Evidence Rules") provides that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Fed. R. Evid. 901(a). And Evidence Rule 901(b)(1), which governs "Testimony of a Witness with Knowledge," provides that the authentication requirement is satisfied by "[t]estimony that an item is what it is claimed to be." Fed. R. Evid. 901(b)(1). The way to authenticate an email under this rule is through the testimony of the sender or the recipient. See Teitelbaum v. Turner , No. 2:17-CV-583, 2018 WL 2046456, at *25 (S.D. Ohio May 2, 2018) ("As one of the parties to the emails, Reedy was a witness with knowledge as required by Evid. R. 901, and his testimony was sufficient to authenticate the emails."); Glob. Med. Sols., Ltd v. Simon , No. CV 12-04686 MMM (JCx), 2013 WL 12065418, at *9 (C.D. Cal. Sept. 24, 2013) ("Meaney was a recipient of all of the emails and responded to certain of them. He therefore has personal knowledge of the documents and can authenticate them."). Dufford testified convincingly that the emails that CitiMortgage submitted into evidence accurately reflect the statements she made in the emails to Brittingham. See Hr'g Tr. at 40 ("I don't see any discrepancies and I am not a[n] IT expert in regards to the email format and how it's formatted. And I can only speak for myself and what I responded to, that this is what I had said. There is no redaction with what you had sent your emails, claiming to the fact that there have been redactions. There have been no redactions on my part."). Based on Dufford's testimony and its review of the emails, the Court finds that the emails in CitiMortgage's exhibits were not redacted.
Nyamusevya contends that he knows the emails have been redacted because they lack a "URL domain" at the top or bottom. Debtor's Substantial Motion for Reconsideration of the 02/03/2022 Order Denying Debtor's Motion to Strike or to Impeach CitiMortgage, Inc.’s Exhibit B and C (Doc. 219) at 2. Based on the Court's experience, its understanding is that, if there is testimony that the emails were printed from an application (such as Microsoft Outlook) rather than a web browser, this would explain why the emails do not include a URL at the top or bottom. Dufford testified that the Sheriff's office uses Outlook and that the emails contained in CitiMortgage's exhibits were taken "straight from our email system." Hr'g Tr. at 28. This testimony, along with her testimony about the content of the emails, refuted Nyamusevya's allegations that the emails have been altered.
B. The Alleged Violations of the Automatic Stay
The Court now turns to the main event—the alleged violation of the automatic stay. Nyamusevya bears the burden of proving that CitiMortgage violated the automatic stay. In re Dougherty-Kelsay , 636 B.R. 889, 897 (B.A.P. 6th Cir. 2022) (holding that the debtor had the burden of proving that the creditor violated the automatic stay). Based on the evidence adduced at the Hearing, including the documentary evidence and the testimony presented, and having considered the demeanor and credibility of the witnesses, the Court determines that Nyamusevya has failed to prove that CitiMortgage violated the automatic stay.
Nyamusevya first contends that CitiMortgage violated the automatic stay when it initially postponed, rather than canceled, the Sheriff's Sale. But postponing a foreclosure sale does not violate the automatic stay. In fact, the automatic stay "require[s] postponement of ... foreclosure sales" that are not outright cancelled. State Bank of Florence v. Miller (In re Miller) , 513 F. App'x 566, 568 (6th Cir. 2013) ; see also In re Webb , No. BAP 11-8016, 2012 WL 2329051, at *14 (B.A.P. 6th Cir. Apr. 9, 2012) (holding that the automatic stay "[a]t the very least ... requires the creditor to inform the state court of the pending bankruptcy filing and to cause any scheduled sale to be postponed until such time as the automatic stay is modified or terminated by the bankruptcy court or by operation of law"). And no stay violation occurs even if the sale is postponed to a new date. See Taylor v. Slick , 178 F.3d 698, 701, 702 (3d Cir. 1999) ("We are persuaded by a consistent line of cases from other courts ... and hold that the continuance of a sheriff's sale in accordance with state law procedure during the pendency of an automatic stay does not violate § 362(a)(1).... Once Taylor filed his bankruptcy petition here, the sale was postponed. Although a new proposed sale date was announced, no act had occurred that prejudiced Taylor or otherwise altered his position with respect to the property."); First Nat'l Bank of Anchorage v. Roach (In re Roach) , 660 F.2d 1316, 1318 (9th Cir. 1981) ("Postponement notices which specify a new sale date do not violate 11 U.S.C. § 362."); In re Rellstab , 622 B.R. 495, 499 (Bankr. D. Mass. 2020) ("Postponing the date of a foreclosure sale is not a per se violation of any of the automatic stay provisions of § 362(a). Rather, it is an act that, without more, merely maintains the status quo between the parties.").
As one bankruptcy court has pointed out, the Sixth Circuit affirmed a district court opinion that found no stay violations resulting from week-to-week extensions of a foreclosure sale:
[The] federal district court in [ Worthy v. World Wide Fin. Servs., Inc ., 347 F. Supp.2d 502 (E.D. Mich. 2004) ] ... decided that adjournment of a foreclosure sale by advertisement from week to week while the automatic stay is in effect does not violate the automatic stay. The United States Court of Appeals for the Sixth Circuit affirmed Worthy , albeit in an unpublished decision adopting the district court's opinion. This court is persuaded by the reasoning of Worthy and its affirmance that adjournment of the sale by advertisement from week to week ... effectuates the purposes of § 362(a) by preserving the status quo until the bankruptcy process is completed or, as in this case, the creditor obtains relief from the automatic stay.
In re Player , Case No. 15-30759, 2015 WL 5885348, at *4 n.4 (Bankr. N.D. Ohio Oct. 7, 2015) (citations omitted). Based on all this authority, the Court finds that the postponement of the Sheriff's Sale did not violate the automatic stay.
Nyamusevya next contends that property inspections conducted by the company hired by Cenlar violated the automatic stay. But property inspections in and of themselves do not violate the stay. Instead, a stay violation occurs only if the inspections are conducted to harass the debtor or coerce him into paying the mortgage debt. Compare Rodriguez v. Wells Fargo Bank, N.A. (In re Rodriguez) , Nos. 11-bk-18847-RGM, 1:14-cv-01263-GBL-IDD, 2015 WL 403968, at *6 (E.D. Va. Jan. 29, 2015) (holding that a property inspection during which the creditor's agent spoke to the debtor only to determine whether she still lived at the property did not violate the automatic stay because "no employee or agent of [the lender] took any act to collect a debt, made any attempt to take possession of the Property, or made any threatening or intimidating act during any of the Property inspections"); Han v. GE Cap. Small Bus. Fin. Corp. (In re Han) , Nos. 00-42086, 05-03012, 2005 WL 2456933, at *3 (Bankr. N.D. Fla. July 12, 2005) (holding that a creditor's property inspection did not violate the stay where "the Court can find no basis for believing that these actions were taken in an effort to harass or coerce [the debtor], or to collect the debt owed by [the debtor]"), and Health Sci. Prods., Inc. v. Taylor (In re Health Sci. Prods., Inc.) , 183 B.R. 903, 934 (Bankr. N.D. Ala. 1995) (holding that a property inspection did not violate the automatic stay where it was not done in an "effort to harass or coerce [the debtor], or to collect the debt owed by [the debtor]"), with PNC Bank N.A. v. Ogden (xIn re Ogden ), No. 15-cv-01274-RBJ, 2016 WL 1077355, at *9 n.7 (D. Colo. Mar. 18, 2016) (holding that property inspections violated the automatic stay when the loan servicer sent the debtor a letter after the petition date stating that foreclosure proceedings may continue if she did not make payment by a date certain), and Sundquist v. Bank of Am., N.A. , 566 B.R. 563, 592 (Bankr. E.D. Cal. 2017) (holding that the lender's harassment of the debtors "crossed the line from passive ‘inspection’ that does not ordinarily offend the automatic stay to active intimidation that does violate it"), vacated in part sub nom . In re Sundquist , 580 B.R. 536 (Bankr. E.D. Cal. 2018). Here, the evidence shows that the inspections of the Property were conducted to ensure the good condition of the Property and were not undertaken as part of an effort by CitiMortgage to collect a debt from Nyamusevya or to harass or intimidate him into paying a debt to CitiMortgage.
VI. Conclusion
Rather than violating the automatic stay, CitiMortgage conducted itself (together with the Sheriff's Office) in a manner that modeled how creditors should act when confronted with the stay. It bears noting that the Court would not hesitate to hold a lender liable for violating the automatic stay and impose significant damages for doing so. See, e.g. , Johnson , 580 B.R. at 802–03 (Bankr. S.D. Ohio 2018) (holding that creditor's stay violation warranted an award of attorneys’ fees in excess of $420,000 and punitive damages of $100,000). That is because the "automatic stay of actions against a debtor is a potent judicially enforced weapon designed to afford breathing space and a fresh start for the ‘honest but unfortunate debtor.’ [But] that weapon has no place being deployed against honest but unfortunate creditors who stand in the path of a dishonest bankrupt." Krueger v. Torres (In re Krueger) , 812 F.3d 365, 373 (5th Cir. 2016) (citation omitted). And that weapon would be deployed here if the Court were to grant the Stay Violation Motion. For all these reasons, the Court concludes that CitiMortgage did not violate the automatic stay, and the Stay Violation Motion therefore is DENIED .
One of the most egregious ways in which Nyamusevya has been dishonest is to assert that he has fully satisfied his outstanding indebtedness to CitiMortgage. As CitiMortgage has pointed out, Nyamusevya's "outlandish allegation that he paid the loan in full is wholly unsupported." Order Denying Debtor's (1) Emergency Motion for Contempt for Violation of Discharge Order Against CitiMortgage; (2) Expedited Motion to Enforce 11 U.S.C. § 524 to Void Per-Petition [Sic] In Personam and In Rem State Court Foreclosure Judgment Against CitiMortgage, Inc.; and (3) Notice of Emergency Hearing (Doc. 254) (quoting CitiMortgage, Inc.’s Mem. In Opp'n to Expedited Mot. to Enforce 11 U.S.C. § 524 to Void [Pre]-Petition in Personam and In Rem State Court Foreclosure J. Against CitiMortgage, Inc., Doc. 253 at 1).