                                                   United States Court of Appeals
                                                            Fifth Circuit
                                                         F I L E D
                                                        December 23, 2003
                      In the
                                                     Charles R. Fulbruge III
 United States Court of Appeals                              Clerk
            for the Fifth Circuit
                _______________

                  m 03-40608
                Summary Calendar
                _______________



                IN THE MATTER OF:
   BOB GASTON, JR., AND NELDA GASTON,

                                     Debtors.



   BOB GASTON, JR., AND NELDA GASTON,

                                     Appellants,

                     VERSUS

NEW CENTURY FINANCE, L.L.C.; BRUCE HOULE;
       AND BANCORP GROUP, INC.,

                                     Appellees.


          _________________________

    Appeal from the United States District Court
        for the Southern District of Texas
                 m M-01-CV-21
         _________________________
Before SMITH, DEMOSS, and STEWART,                                                II.
  Circuit Judges.                                             The district court saw no error in the bank-
                                                           ruptcy court’s findings with regard to the
PER CURIAM:*                                               terms of the lease and that there was no viola-
                                                           tion of the DTPA. On this appeal, the Gastons
    Bob and Nelda Gaston appeal an adverse                 do nothing more than restate their allegation
ruling on their numerous claims against New                that New Century violated the act. We see no
Century Finance, L.L.C. (“New Century”),                   error in the district court’s holding in this
Bruce Houle, and Bancorp Group, Inc. (“Ban-                regard.
corp”) arising from Bob Gaston’s lease of a
laptop computer shortly before his bankruptcy,                                   III.
and attempts by New Century and Bancorp to                    The district court correctly decided that
collect the lease payments owed them and to                there was no clear error in the bankruptcy
recover the computer after Gaston’s default.               court’s finding that there was neither a show-
In an adversary proceeding before the bank-                ing of outrageous conduct on the part of the
ruptcy court, the Gastons sued for (1) viola-              defendants nor a showing that their conduct
tions of the automatic stay required by the                caused physical harm. Both are required to
Bankruptcy Code; (2) common law unfair                     state a cause of action for unfair debt col-
collection practices; (3) violation of the Texas           lection practices.
Deceptive Trade Practices Act (“DPTA”);
(4) malicious prosecution; (5) abuse of pro-                                       IV.
cess; (6) usury; and (7) libel.                               To state a claim for malicious prosecution,
                                                           the plaintiff must show: “(1) the commence-
   Our review is of the district court’s affirm-           ment of a criminal prosecution against the
ance of the bankruptcy court, so we apply the              plaintiff; (2) causation (initiation or procure-
same standards of review as did the district               ment) of the action by the defendant; (3) ter-
court. The bankruptcy court’s findings of fact             mination of the prosecution in the plaintiff's fa-
are reviewed for clear error and its conclusion            vor; (4) the plaintiff's innocence; (5) the ab-
of law de novo. In re Coho Resources, Inc.,                sence of probable cause for the proceedings;
345 F.3d 338 (5th Cir. 2003).                              (6) malice in filing the charge; and (7) damage
                                                           to the plaintiff.” Richey v. Brookshire Gro-
                       I.                                  cery Co., 952 S.W.2d 515 (Tex. 1997). The
   The district court properly held that truth is          district court found no error in the bankruptcy
an absolute defense to a libel claim. It was al-           court’s ruling that the defendants were entitled
so correct in determining that the bankruptcy              to summary judgment. There is nothing in the
court’s finding was not clearly erroneous.                 record to indicate that this was error or that
                                                           New Century did not have probable cause and
                                                           act reasonably.

                                                                                  V.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has              As the district court found, an abuse of pro-
determined that this opinion should not be pub-            cess claim must show an improper use of pro-
lished and is not precedent except under the limited       cess after its issuance, not merely its procure-
circumstances set forth in 5TH CIR. R. 47.5.4.

                                                       2
ment. Snyder v. Byrne, 770 S.W.2d 65 (Tex.               clearly erroneous.
App.SSCorpus Christi 1989, no writ). There
is no evidence to challenge the bankruptcy                                     IX.
court’s finding that no actionable conduct oc-              The bankruptcy court concluded that Bob
curred after process was issued. Therefore,              Gaston had converted the laptop that was
summary judgment was proper.                             owned by New Century. It also decided that
                                                         the value of the laptop at the time of conver-
                       VI.                               sion was $1,400 and awarded that amount as
    The district court was correct in stating that       damages to New Century. There is nothing to
a claim of usury is inapplicable in a lease trans-       indicate that the bankruptcy court’s findings of
action. Maloney v. Andrews, 483 S.W.2d 703               fact were clearly erroneous or that its con-
(Tex. Civ. App.SS1972, writ ref’d n.r.e.). The           clusions of law were incorrect.
bankruptcy court found that the lease in ques-
tion was a true lease and therefore does not                AFFIRMED.
provide t he basis for a usury claim. This
finding is not erroneous.

                        VII.
    After a trial, the bankruptcy court made de-
tailed findings of fact and conclusions of law.
The district court was correct in stating that
there is no indication of clear error in the
bankruptcy court’s findings that (1) Bancorp
committed no willful or knowing violations of
the automatic stay, because it lacked knowl-
edge of the bankruptcy, and that even if it did
have knowledge, the Gastons failed to prove
that they suffered actual damages as a result;
and (2) New Century committed one knowing
violation of the automatic stay, for which the
Gastons were damaged in the amount of
$621.01.

                      VIII.
    The Gastons seek $140,000 in attorney’s
fees and $16,000 for costs. After trial, the
bankruptcy court found that reasonable fees
were $3,000. It also stated that Bob Gaston’s
hands were not clean, that his counsel’s
“[s]corched earth tactics are inappropriate,”
and that § 362 is not a blank check for plain-
tiffs and their counsel to run up fees. There is
no indication that any part of this finding is


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