          United States Court of Appeals
                        For the First Circuit

No. 09-9022

    IN RE: LUIS G. VÁZQUEZ LABOY; CARMEN D. GARCÍA CALDERÓN,

                               Debtors.


        LUIS G. VÁZQUEZ LABOY; CARMEN D. GARCÍA CALDERÓN,

                             Appellants,

                                  v.

    DORAL MORTGAGE CORPORATION; DORAL FINANCIAL CORPORATION;
       EDGARDO CANALES IDRACH d/b/a CANALES LAW OFFICES;
                      ÁNGEL R. ROLÁN PRADO,

                              Appellees.


              APPEAL FROM THE BANKRUPTCY APPELLATE PANEL
                         FOR THE FIRST CIRCUIT


                                Before

         Torruella, Lipez, and Thompson, Circuit Judges.


     Juan M. Suárez Cobo, with whom Legal Partners, P.S.C. was on
brief, for appellants.
     Giselle López Soler, with whom Néstor M. Méndez Gómez and
Pietrantoni Méndez & Álvarez LLP were on brief, for appellees Doral
Mortgage Corporation and Doral Financial Corporation.
     Giancarlo Font García, with whom Rivera-Carrasquillo, Martínez
& Font was on brief, for appellees Edgardo Canales Idrach d/b/a
Canales Law Offices and Ángel R. Rolán Prado.


                             May 27, 2011
     THOMPSON, Circuit Judge.                Debtors Luis Vázquez Laboy and

Carmen García Calderón claim they were unconstitutionally deprived

of a hearing on damages due to them as a result of the Appellees'

willful violation of the automatic stay in their bankruptcy case.

Appellees Doral Mortgage Corporation – who set in motion the stay

violation    –    and   its   former    attorney-notaries           at   Canales      Law

Offices,     Edgardo        Canales    Idrach        and     Ángel       Rolán    Prado

(collectively, Canales) – who actually carried out the acts that

violated the stay – have mounted a broad counter-attack, fighting

everything       from   our   jurisdiction      to    the    willfulness         of   the

violation.       All this avails them nothing, however.                  Avoiding the

constitutional issue, we nevertheless find that the Debtors are

entitled to present evidence, and we remand so they can do so.

     Shenanigans at the Registry

     This case's decade-plus of court proceedings all stem from the

Debtors' purchase of a property in Corozal, Puerto Rico on December

17, 1996.1       Not long after the purchase – on December 30, 1996 –

the Debtors presented their conveyance deed to the Registry of

Property.        Under Puerto Rico law, the Registry has sixty days

either to record a deed that has been presented or to notify the

presenters of any defects.            See 30 L.P.R.A. § 2255.             If a deed's

presenters       do   not   correct    any    defect       within    sixty   days      of


     1
      The Debtors purchased the property from Manuel Angel Vázquez
and Margarita Ortiz Bonilla; the notary who effected the
transaction was Luis F. Maldonado Rivera.

                                        -2-
notification, then the presentation expires and the Registry will

reject the deed.   See id.

     On February 15, 1997 – before the initial sixty-day period was

up, and with the conveyance deed still unrecorded – the Debtors

borrowed $25,000 from Doral, secured by a mortgage on the property.

Canales, acting as a notary retained by Doral, promptly presented

the mortgage deed to the Registry.2

     This is where things went awry.   First, the Registry informed

the Debtors that their conveyance deed was defective.    So on May 5,

1997, the Debtors withdrew the deed, as was their right under 30

L.P.R.A. § 2254.    But the mortgage deed remained in limbo; its

presentation expired and it was never recorded. The Registry ought

to have informed Doral or Canales that the mortgage deed was

defective due to the withdrawal of the conveyance deed, see id. §§

2255, 2272; Doral disputes that the Registry did so.     But there is

no question that by July 29, 1999, Doral had learned that the

conveyance and mortgage deeds remained unrecorded.      Nevertheless,

it sat on its hands.   And in the meantime, on January 31, 2000, the

Debtors filed for Chapter 13 bankruptcy.      Doral learned of the

bankruptcy petition in February and entered the case in early



     2
       Under Puerto Rico law, a notary is an attorney specially
authorized to execute and give legal effect to certain documents –
including deeds – so the documents will reflect the agreement of
the parties.    See 4 L.P.R.A. §§ 2002 (defining notary), 2031
(defining "public documents" as including deeds), 2032 (notaries
responsible for conforming public documents to parties' agreement).

                                 -3-
March.

     Now Doral was in a fix. The bankruptcy petition had triggered

an automatic stay, forbidding any action to perfect a lien against

estate property.   See 11 U.S.C. § 362(a)(4).   But this restriction

hurt Doral: Doral's interest in the Debtors' property remained un-

perfected, and its position in the bankruptcy proceedings suffered

as a result.3   If the mortgage had been recorded then Doral's claim

against the bankruptcy estate would have been secured by a lien on

the property; the unrecorded mortgage, though, left Doral's claim

effectively unsecured.    So, heedless of the stay, on December 1,

2000, Canales – again acting as a notary retained by Doral –

presented the mortgage deed to the Registry anew, this time with a

corrected conveyance deed.4    See 30 L.P.R.A. § 2275 (allowing for

a new presentation after the correction of defects).   The Debtors,

however, did not take this lying down.

     Adversary Action

     On August 22, 2001, the Debtors filed an adversary action


     3
       See, e.g., In re SPM Mfg. Corp., 984 F.2d 1305, 1312 (1st
Cir. 1993) ("If a lien is perfected and not otherwise invalidated
by law, it must be satisfied out of the assets it encumbers before
any proceeds of the assets are available to unsecured claimants,
including those having priority.").
     4
       Apparently the conveyance deed had already been corrected
and re-presented by notary Julio E. Córa Lopez; Canales obtained a
copy of the corrected deed from the Registry and filed this copy
with the mortgage deed.     The correction and re-filing of the
conveyance deed rendered the mortgage deed valid, and the copy of
the corrected conveyance deed evidenced this remediation to the
Registry.

                                 -4-
against    Doral   in   bankruptcy     court,   claiming   that   Doral's

presentation of the mortgage deed willfully violated the automatic

stay and seeking various relief, including damages, costs, and

fees.5    Doral moved to dismiss the complaint.     For their part, the

Debtors filed a motion for partial summary judgment on liability.

There followed a flurry of filings, including an amended complaint

that brought Canales into the case. Canales responded with its own

summary judgment motion.      Finally, on August 29, 2003 the court

dismissed the action, holding that Doral's post-petition attempt to

perfect its mortgage fell under an exception to the automatic stay.

See 11 U.S.C. § 362(b)(3).6


     5
       The filing of the corrected conveyance deed did not
constitute an act against the bankruptcy estate and therefore has
never been directly at issue.
     6
       Specifically, § 362(b)(3) provides           that   a   bankruptcy
petition does not act as a stay against:

     any act to perfect, or to maintain or continue the
     perfection of, an interest in property to the extent that
     the trustee's rights and powers are subject to such
     perfection under [11 U.S.C. § 546(b)] or to the extent
     that such act is accomplished within the period provided
     under [11 U.S.C. § 547(e)(2)(A)].

Section 546(b) provides that a trustee's rights and powers are
subject to generally applicable laws (A) allowing the perfection of
a property interest "to be effective against an entity that
acquires rights in such property before the date of perfection" or
(B) "provid[ing] for the maintenance or continuation of perfection
. . . to be effective against an entity that acquires rights in
such property before the date on which action is taken to effect
such maintenance or continuation." Section 547(e)(2)(A) defines a
time period: "at the time [a] transfer takes effect between the
transferor and the transferee, if such transfer is perfected at, or
within 30 days after, such time, except as provided in subsection

                                     -5-
       The Debtors moved for reconsideration, and after kicking the

issue about for three years the court obliged by reversing itself,

granting the Debtors' motion for partial summary judgment, and

effectively denying Doral and Canales's dispositive motions.                 The

court recognized that Doral had been aware well in advance of the

bankruptcy petition that its mortgage was unrecorded, and concluded

that       the   attempt   to   perfect    the    mortgage   had   constituted   a

violation of the automatic stay.                As a result, the court ordered

Doral to withdraw the mortgage deed and turn it over to the Debtors

for cancellation.          An untimely appeal by Canales to the Bankruptcy

Appellate Panel (also "BAP" or "Panel") was swiftly dismissed for

want of jurisdiction.           See Fed. R. Bankr. P. 8002(a) (establishing

time to file); In re Abdallah, 778 F.2d 75, 77 (1st Cir. 1985)

(Rule 8002 time limit is jurisdictional).

       Buoyed by their string of successes, the Debtors petitioned

the    court      for   damages,   which    then-section     362(h)   authorized

following a willful violation of the automatic stay.7                 The former

11 U.S.C. § 362(h) read: "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


(c)(3)(B)."   Subsection (c)(3)(B) refers to perfection "on or
before 30 days after the debtor receives possession of . . .
property." As the body of this opinion notes, the bankruptcy court
originally found that the exception applies here but then reversed
itself. Neither conclusion is now at issue.
       7
           Damages now fall under 11 U.S.C. § 362(k).

                                          -6-
circumstances,           may   recover    punitive    damages."          The   Debtors

explicitly sought both a preliminary conference and a full hearing

on damages.         The court acceded to the request for a conference,

which occurred on June 22, 2007,8 but the hearing on damages never

happened: on October 8, 2008, the court denied both the hearing and

damages, and attorneys' fees to boot, finding that the cancellation

of the mortgage was remedy enough.               On December 17, 2008, the court

entered a final judgment denying damages.               The Debtors appealed to

the Bankruptcy Appellate Panel, which summarily affirmed due to a

missing transcript; now they seek our review.

       Jurisdiction

       Before reaching the parties' substantive arguments, we must

determine whether we have jurisdiction to consider the matter at

all.       Doral and Canales say we do not, for two reasons.                    First,

they       say,    the    bankruptcy     court's    order     on   the    motion   for

reconsideration constituted a final judgment, so the Debtors'

request      for    damages     and   subsequent     appeal    months     later    were

untimely.         And second, they say, even if there were some question

as to whether the court's order was a final judgment, the law of

the case requires us to hold that it was because the Bankruptcy


       8
       At the conference, the parties outlined their arguments on
the effect and validity of the court's self-reversal, and the court
set a briefing schedule so the parties could lay out their
arguments in more detail. The court did not indicate that it would
be ruling on the Debtors' damages request; instead, the discussion
suggested that the court would sort out the procedural morass that
followed its self-reversal.

                                           -7-
Appellate    Panel      so    held     and    no   one       challenged      the   Panel's

determination.         Both of these arguments fail.                 We plainly "have

jurisdiction      of    [timely]       appeals       from      all   final    decisions,

judgments,     orders,        and     decrees"     of        intermediate     bankruptcy

tribunals.     28 U.S.C. § 158(d)(1).              Here, the BAP issued a final

decision    and   judgment       in    the    form      of    a   summary    affirmance.

Therefore, we have jurisdiction.

     We will, however, address Doral and Canales's jurisdictional

arguments as applied to the bankruptcy court, because if the

bankruptcy court had no authority to entertain the Debtors' request

for damages then no hearing on damages was necessary and our review

can end there.

     The first jurisdictional argument, again, goes to timeliness.

Specifically, Doral and Canales say that the Debtors' request for

damages was functionally equivalent to a motion to alter or amend

a judgment under Fed. R. Civ. P. 59(e) because it sought additional

relief after the court had already granted summary judgment.                          As a

basis for this argument Doral and Canales say the order granting

summary judgment was a "final judgment"; if it was then the motion

may be properly characterized as one under Rule 59.                       And if this is

the case then the motion had to be filed within ten days of the

original judgment.           See Fed. R. Civ. P. 59(e) (amended in 2009 to

extend filing period to twenty-eight days).                       Rule 59's time limit

is jurisdictional.           Barrett v. United States, 965 F.2d 1184, 1187


                                             -8-
(1st Cir. 1992).      So, Doral and Canales conclude, because the

damages request was not filed within ten days of the summary

judgment   grant,   the   bankruptcy   court   had   no   jurisdiction   to

entertain it.       But if, as the Debtors argue, the motion was

something other than one to set aside judgment, then the Rule 59

ten-day window would not apply.

     The term "final judgment" is no misnomer – the Supreme Court

has held consistently for generations that it applies only to a

determination that leaves nothing more for the court to do than to

execute judgment.     See Riley v. Kennedy, 128 S. Ct. 1970, 1981

(2008) ("A final judgment is 'one which ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.'") (quoting Catlin v. United States, 324 U.S. 229, 233

(1945)).   It follows that if the issue of damages was still open

when the court resolved the Debtors' motion for partial summary

judgment then the court's determination was not final. See Garzaro

v. Univ. of P.R., 575 F.2d 335, 337 (1st Cir. 1978) (holding that

an order that "leaves open the monetary liability of defendants, is

not a 'final' order" and collecting sources).        Indeed, the Debtors

requested damages in their complaint and the court failed to act on

this request – the issue remained unresolved when the court granted

summary judgment.    The bankruptcy court referred to its conclusion

only as an order.      No judgment entered after the court's order.

And later on, the court itself explicitly held that it had not


                                  -9-
issued a final judgment.          The only thing that might lead us to

accept Doral and Canales's contention that the order was a final

judgment is a single line in the order: "judgment must enter in

favor   of   the    debtors."      But   this    line    is    not   particularly

convincing – judgment did not actually enter at all.                      Given all

this, it is abundantly clear that the court did not issue a final

judgment before the Debtors filed their motion for damages.                     There

was no motion to alter or amend judgment because there was no final

judgment to alter or amend.

     Doral    and    Canales    next   argue    that    the   law    of   the    case

effectively    precluded        the    bankruptcy       court's      exercise     of

jurisdiction over the motion for damages.               This is so, Doral and

Canales say, because the BAP dismissed Canales's appeal of the

order granting summary judgment on the ground that it lacked

jurisdiction due to Canales's untimely filing.                According to Doral

and Canales, the BAP's dismissal constituted an implicit holding

that the order was a final judgment.              However, that is not the

case.

     "The law of the case doctrine 'posits that when a court

decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.'"                   Remexcel

Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 53 (1st Cir.

2009) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)).

We need not expound on this doctrine in great detail, as it plainly


                                       -10-
does not apply here.            Not only was the bankruptcy court's order

granting summary judgment not a final judgment, but the BAP did not

hold that it was one either.            Intermediate bankruptcy tribunals

have jurisdiction over appeals not only from "final judgments,

orders, and decrees," but also from "interlocutory orders and

decrees."        28 U.S.C. § 158.           Any appeal to an intermediate

bankruptcy       tribunal   –    whether    from   a   final    judgment   or   an

interlocutory order – is subject to the time limit imposed by Rule

8002(a) of the Federal Rules of Bankruptcy Procedure.9                  Thus, the

BAP's       generic   determination    of    untimeliness      says   nothing   and

implies nothing about whether the unsuccessful appeal was from a

final or interlocutory order.          For this reason, the law of the case

has no place here.

     Doral and Canales propose the last-ditch policy argument that

it would be unfair to allow the Debtors an opportunity to appeal

when Canales was barred from the same opportunity; this argument is

perhaps their least compelling.             Let us put it this way:      If Doral

and Canales were correct that the order granting summary judgment

constituted a final judgment, then Canales dug its own appeal's

grave by filing fifty-eight days after the court's ruling – not

just untimely, but very untimely.            But they are not correct on the

final judgment issue, which means that when final judgment actually



        9
       Rule 8002(a) imposed a ten-day time limit for appeals until
2009, when the limit was increased to fourteen days.

                                       -11-
did enter, there was no reason they could not have cross-appealed,

fighting summary judgment before the BAP and then before us.    See,

e.g., In re Bos. Reg'l Med. Ctr., Inc., 291 F.3d 111, 116 n.2 (1st

Cir. 2002) (noting that appellees aggrieved by a lower court

judgment may cross-appeal); Fed. R. Bankr. P. 8002(a) (establishing

time limit for cross-appeals).    They have not done so.   Doral and

Canales have failed to avail themselves of procedures that were

readily available to them; this failure decidedly does not imply

that they were unfairly deprived of an opportunity to appeal the

order granting summary judgment.

     In the end, then, the bankruptcy court had jurisdiction over

the Debtors' damages motion, and we certainly have jurisdiction

over the Debtors' appeal of its denial.    We turn now to the merits

of the case.

     Standard of Review

     Before a bankruptcy case reaches us, appellants have two

options for intermediate review: they may be heard by a district

court or a bankruptcy appellate panel.    In re Hill, 562 F.3d 29, 32

(1st Cir. 2009); see also 28 U.S.C. § 158.      Whichever option the

appellants choose, in conducting our own review we "cede no special

deference to the intermediate decision," focusing instead on the

bankruptcy court's decision.   Hill, 562 F.3d at 32.   Our review of

the bankruptcy court's decision is de novo, though we will only

upset the court's factual determinations in the case of clear


                                 -12-
error.     Id.

      Willful Violation

      An important premise of the Debtors' appeal is that the

bankruptcy court found Doral and Canales to have willfully violated

the automatic stay.          Without a willful violation, the damages

provision of 11 U.S.C. § 362 by its terms would become irrelevant.

Doral and Canales claim that the bankruptcy court never found a

willful violation. They focus on the absence of the word "willful"

anywhere in the court's analyses.             They further argue that there

was no willful violation as a matter of fact, precluding partial

summary judgment in the Debtors' favor and therefore precluding

damages.     We disagree: as the bankruptcy court effectively held,

there was a willful violation as a matter of undisputed fact.10

      A    violation    is   "willful"   if    a   "creditor's    conduct   was

intentional (as distinguished from inadvertent), and committed with

knowledge of the pendency of the bankruptcy case." In re McMullen,

386 F.3d 320, 330 (1st Cir. 2004).         Doral and Canales cannot and do

not   contest    that   Canales,   at    Doral's    request,     intentionally

presented the mortgage deed to the Registry after the Debtors had



      10
        We also pause to note that, because neither Doral nor
Canales cross-appealed, there is no direct challenge before us as
to the bankruptcy court's summary judgment grant, including its
determination that a willful violation occurred.      The willful-
violation question remains alive only to the extent that it affects
the Debtors' right to damages. This limitation affects not only
our analysis but also the effect of our decision: specifically, the
mortgage remains cancelled because no one challenged that result.

                                    -13-
filed their bankruptcy case.          Nor is there any dispute that Doral

had knowledge of the case while it retained Canales, given that

Doral filed a notice of appearance in the underlying bankruptcy

case    months   before   Canales     filed   the   mortgage   deed   with   the

Registry. Doral and Canales each attempt to cast themselves as the

guiltless party in the filing of the deed: Doral claims that

Canales     filed   the   deed   on   the   basis   of   Doral's   pre-petition

urgings, and Canales claims that it did so without notice from

Doral as to the pending bankruptcy action.               In other words, Doral

took no actions once it had knowledge, and Canales did take actions

but had no knowledge.       Diffusion of responsibility, however, gets

them nowhere.       See McMullen, 386 F.3d at 331 (cataloguing cases of

joint willful violations); see also In re Timbs, 178 B.R. 989, 995

(Bkrtcy. E.D. Tenn. 1994) (cataloguing cases of joint willful

violations by attorney and client).             It seems to us that Doral

ought to have informed Canales when it learned of the bankruptcy

petition, and that Canales – given the notary's role of giving

legal effect to "the will of the parties," 4 L.P.R.A. § 2002

(emphasis added) – ought to have done more than follow Doral's word

alone.11    Despite their protestations, Doral and Canales's acts are


       11
       Indeed, Canales's argument that it acted not in concert with
Doral, but rather in its independent role as a notary – effectively
a public officer – is neither carefully advanced nor well-taken.
Doral told Canales it wished to foreclose against the Debtors and
needed the mortgage deed to be registered properly.         By all
accounts, Canales asked no questions, did not contact the Debtors,
and simply did Doral's bidding. On the plain-as-day record and the

                                       -14-
not wholly separable from one another, and in the end there is no

question that each is responsible for a willful violation as a

matter of law.     See McMullen, 386 F.3d at 331.

     Doral   and    Canales   argue   that   the   bankruptcy   court's

determination that "[t]he present case is more like an avoidance

action . . . than a common violation of the automatic stay"

forecloses a finding of willfulness as a matter of law.         They do

not, however, explain how this avoidance analogy (which the court

used only to support its decision not to award damages) might

affect our willfulness analysis.         Instead, the analogy seems

designed to fit the proverbial round peg (here, a willful violation

of the stay) into a square hole (here, an avoidance action),

casting this case as something it is not.     We have already spelled

out what constitutes a willful violation, applied that standard

here, and concluded that there was such a violation.      In contrast,

an avoidance action allows a bankruptcy trustee to cancel an

improper conveyance or recover for the estate the value of the

improperly conveyed property.     See 11 U.S.C. §§ 544, 545, 547(b),

548(a), 549(a).     Here, the adversary action may indeed have been

like an avoidance action in that cancelling an improper conveyance


sparse law cited by Canales, the firm acted not independently but
rather on Doral's behalf.      Our own research bears out this
conclusion. See, e.g., Chévere v. Cátala, 115 D.P.R. 432, 438, 15
P.R. Offic. Trans. 572 (P.R. 1984) (discussing the notary's
inherent duty to "investigate the facts and data on which the
efficacy or validity of [a] transaction rests") (emphasis and
internal quotation marks omitted).

                                 -15-
was a portion of the remedy, but it simply was not one.12              Doral and

Canales's analogy to avoidance actions cannot trump the language of

the statute that actually applies here and the well-established

case    law    construing    that   language;   as   a   matter   of    plainly

applicable law, Doral and Canales willfully violated the stay.

       Hearing on Damages

       Now we reach the meat of the appeal: the Debtors' contention

that the court erred by denying them a hearing on damages.                  The

parties frame this as an issue implicating the Fifth Amendment's

Due Process Clause.         But "courts should not decide constitutional

issues when this can be avoided," see United States v. Vilches-

Navarrete, 523 F.3d 1, 9 n.6 (1st Cir. 2008), and we can address

the Debtors' concerns without recourse to the Fifth Amendment.

       The opportunity for a plaintiff to present evidence on damages

after winning partial summary judgment on liability is a right so

fundamental in civil proceedings that it normally goes without

saying.       See, e.g., Donahue v. United States, 634 F.3d 615, 622

(1st Cir. 2011) (district court "granted partial summary judgment

. . . with respect to liability" and then "held a bench trial on

the issue of damages"); In re Rivera Torres, 432 F.3d 20, 22 (1st



       12
        The fact of the separate statutory bases for willful
violation actions (11 U.S.C. § 362) and avoidance actions (11
U.S.C. § 544) also renders inapposite the bankruptcy court's, and
Doral and Canales's, reliance on In re Burns, 322 F.3d 421 (6th
Cir. 2003).    Burns dealt only with avoidance actions and had
nothing whatsoever to say about willful violations.

                                     -16-
Cir. 2005) ("The bankruptcy court entered partial summary judgment

in favor of the Debtors, subject to a later hearing on damages.");

Vélez v. Awning Windows, Inc., 375 F.3d 35, 39 (1st Cir. 2004)

(district court "granted the plaintiff's motion for partial summary

judgment . . . resolv[ing] the issue of liability" and then

"convened a damages hearing before a jury"); accord 10B Wright,

Miller & Kane, Federal Practice & Procedure § 2736 (3d ed. 1998)

(noting that "if the court establishes the existence of liability"

via partial summary judgment, "the case then will proceed for a

determination of the damage issue").               Such an opportunity is

necessary here given the bankruptcy code's unequivocal mandate of

actual damages following a willful violation of an automatic stay.

As a reminder, the statute at issue provides: "An individual

injured by any willful violation of a stay provided by this section

shall recover actual damages, including costs and attorneys' fees."

11 U.S.C. § 362(h) (prior to amendment).       There can be no question

that, as a general matter, the statute mandates actual damages.

And it would be impossible for a court to set the amount of actual

damages, costs, and attorneys' fees without taking evidence. Thus,

the bankruptcy court frustrated both the statute's language and its

mandated result by denying the Debtors a chance to prove damages.

In order "to enforce [the statute] according to its terms," as both

we   and   the   bankruptcy   court   must   do,    remand   is   necessary.

Caminetti v. United States, 242 U.S. 470, 485 (1917); see also


                                  -17-
Mass. Museum of Contemporary Art Found., Inc. v. Buchel, 593 F.3d

38, 50 (1st Cir. 2010) (same).

      Anticipating our decision's grounding in statutory language,

Doral and Canales claim that the court's determination of a willful

violation is not enough to trigger a damages inquiry: they say that

in order to be statutorily entitled to damages a party must first

prove injury, too.     See 11 U.S.C. § 362(h) (prior to amendment,

establishing right to recovery for "[a]n individual injured by any

willful violation," emphasis added).         The Debtors claim injury:

they have expended court costs and attorneys' fees in order to

vindicate the automatic stay, and the statute mandates that they

may recover both as actual damages.13       Moreover, in the context of

a procedural argument founded on the absence of any opportunity to

offer proof of damages, Doral and Canales's contention puts the

trailer before the tractor.        The Debtors would no doubt welcome an

opportunity to prove injury, which is closely intertwined with

damages; as it is, they have not had the opportunity to prove

anything beyond the willful violation.        The Debtors also point out

that in each of a plethora of non-binding lower-court cases Doral

and   Canales   cite   on   this   point,   the   court   made   its   final

determination on damages only after reviewing evidence specific to


      13
       The Debtors have made it plain enough that these are exactly
the damages they seek: on appeal, they have waived their right to
pursue actual damages other than costs and attorneys' fees except
to the extent such damages might be necessary for an award of
costs.

                                    -18-
injury and damages.14    Thus, contrary to Doral and Canales's

contentions, these cases support the Debtors' argument that the

statute affords them an opportunity to present evidence.       The

Debtors have a statutory right to prove damages after a willful

violation of the automatic stay, and such a violation is precisely

what occurred here.

     The parties spend more energy on the question of whether the

bankruptcy court already provided adequate opportunity for the

Debtors to prove damages.    As a starting point, Doral says we

cannot review the question at all and must summarily affirm because

the Debtors have not produced a transcript of the bankruptcy

court's conference that was nominally on damages. This might be an

issue, except for the undisputed fact that the court never held an

evidentiary hearing but, instead, explicitly denied the Debtors'

request for one.   Cf. Rodríguez v. Señor Frog's de la Isla, Inc.,

No. 09-2548, 2011 WL 1364934, at *7 (1st Cir. Apr. 12, 2011)

(argument could not succeed absent transcript because there was not

"enough raw material so that we [could] do our job").    Moreover,

the transcript is readily available through the bankruptcy court



     14
       In re Heghmann, 316 B.R. 395, 399 (1st Cir. B.A.P. 2004)
(hearing involving testimony of two witnesses); In re Dayley, 349
B.R. 825, 829 (Bkrtcy. D. Idaho 2006) (outlining testimony on
damages); In re Skeen, 248 B.R. 312, 319 (Bkrtcy. E.D. Tenn. 2000)
(hearing involving testimony on, e.g., lost wages); In re Clayton,
235 B.R. 801, 805 (Bkrtcy. M.D.N.C. 1998) (full trial on all
issues); In re Sucre, 226 B.R. 340, 344 (Bkrtcy. S.D.N.Y. 1998)
(damages award based in part on review of pay stubs).

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docket: it shows that the court discussed damages barely if at all

and took no evidence.           Instead, at the June 22, 2007 status

conference, the parties laid out a skeletal version of their legal

arguments, and the court ordered further briefing.           Between the

bankruptcy court's rejection of a damages hearing and the easily

obtained transcript's showing that the status conference did not

allow for the presentation of evidence, there is more than enough

for us to conclude, as we do, that the court improperly denied the

Debtors an opportunity to prove damages.

       Wrapping up, we note that the bankruptcy court's decision

itself shows why such an opportunity is necessary.            The record

reveals no clear foundation for the bankruptcy court's conclusion

that damages were unwarranted.       The court only suggested that the

adversary proceeding was "like an avoidance action," but did not

otherwise support its conclusion that cancellation of the mortgage

was a sufficient remedy for the willful violation.         And the court

gave   no   explanation   for    disregarding   the   statute's   language

mandating the recovery of costs and attorneys' fees.         The court's

conclusion is rooted in neither record nor statute, and an analogy

unsupported by any evidence is not enough to justify its decision

to disregard the statute's mandatory language and deny damages.

       Conclusion

       For the reasons set forth above, we reverse the bankruptcy

court's denial of a hearing on damages, vacate its rejection of


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damages, and remand for the parties to present evidence on damages.

Costs are taxed in favor of the appellants.




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