United States Tenth Circuit

In order to demonstrate a violation of an automatic stay of 11 U.S.C. section 362(k)(1) in bankruptcy proceedings, the debtor bears the burden of establishing, by a preponderance of the evidence, that the creditor knew of the automatic stay and intended the actions that constituted the violation; no specific intent is required. A determination that defendant-dealership willfully violated an automatic stay of 11 U.S.C. section 362 by repossessing a pickup truck after a Chapter 13 bankruptcy petition had been filed is affirmed where: 1) the determination by a preponderance of the evidence that defendant willfully violated the automatic stay was proper; 2) a Retail Installment Contract and Security Agreement was not an executory contract; and 3) defendant was properly denied its post-petition attempt to perfect its lien.

Appellate Information

• Decided 08/28/2007
• Published 08/29/2007

Judges

• McKAY, Circuit Judge., Before KELLY, McKAY, and BRISCOE, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellees:
  
• Ken McCartney and Carrol Nelson, Law Offices of Ken McCartney, P.C., Cheyenne, Wyoming, for Plaintiffs-Appellees., Stephen R. Winship, Winship & Winship, P.C., Casper, Wyoming, for Defendants-Appellants.