                                                        FILED
                                                         APR 04 2014
 1                         NO FO PUBL A IO
                             T R     IC T N
 2                                                   SUSAN M. SPRAUL, CLERK
                                                       U.S. BKCY. APP. PANEL
                                                       OF THE NINTH CIRCUIT
 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP No. SC-13-1301-PaJuKu
                                   )
 6   JOSE J. HERNANDEZ,            )      Bankr. No. 11-15921-MM7
                                   )
 7                   Debtor.       )
     ______________________________)
 8                                 )
     COLLECT ACCESS, LLC,          )
 9                                 )
                     Appellant,    )
10                                 )
     v.                            )      M E M O R A N D U M1
11                                 )
     JOSE HERNANDEZ,               )
12                                 )
                     Appellee.2    )
13   ______________________________)
14                  Argued and Submitted on March 20, 2014
                            at Pasadena, California
15
                             Filed - April 4, 2014
16
              Appeal from the United States Bankruptcy Court
17                for the Southern District of California
18        Honorable Margaret M. Mann, Bankruptcy Judge, Presiding
19
     Appearances:     Tappan Zee argued for appellant Collect Access,
20                    LLC.
21
22   Before: PAPPAS, JURY, and KURTZ, Bankruptcy Judges.
23
24        1
             This disposition is not appropriate for publication.
25   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
26   See 9th Cir. BAP Rule 8013-1.
27        2
             Appellee Jose Hernandez did not file a brief or appear in
28   this appeal.
 1        Appellant Collect Access, LLC (“Collect”) appeals the order
 2   of the bankruptcy court finding it in contempt for failing to pay
 3   monies due to chapter 73 debtor, Appellee Jose J. Hernandez
 4   (“Hernandez”), under the terms of a previous order.   We AFFIRM.
 5                                 FACTS4
 6        On August 30, 2002, a judgment was entered in San Diego
 7   Superior Court in favor of First Select, Inc. against Hernandez
 8   for $2,091.71; the judgment was renewed on January 22, 2008 for
 9   $3,723.19.   Collect, the successor to First Select, submitted a
10   writ of execution to the Los Angeles Sheriff’s Department on
11   July 12, 2011, to enforce the judgment.   On August 26, 2011, the
12   sheriff served the writ on Wells Fargo Bank, N.A. and received
13   $712.39 from funds in Hernandez’s bank account.
14        On September 27, 2011, Hernandez filed a petition for relief
15   under chapter 7.   He listed the levied funds as an asset in
16   Schedule B and claimed them exempt in Schedule C.
17        On November 3, 2011, Hernandez filed an ex parte motion in
18   the bankruptcy court seeking an order requiring the sheriff to
19   turn over the funds to him under § 542(a).   The bankruptcy court
20   granted the turnover motion the next day.    However, the sheriff
21
          3
22           Unless otherwise indicated, all chapter and section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101 – 1532,
23   all Rule references are to the Federal Rules of Bankruptcy
24   Procedure, Rules 1001–9037, and all Civil Rule references are to
     the Federal Rules of Civil Procedure 1–86.
25
          4
             As is discussed below, this is the second occasion these
26   parties have appeared before the Panel concerning their disputes.
27   Many of the facts recounted here are taken from the opinion of
     the Panel in the first appeal, Collect Access, LLC v. Hernandez,
28   483 B.R. 713 (9th Cir. BAP 2012).

                                     -2-
 1   was unable to comply with the order because, before receiving it,
 2   the funds had been transferred to Zee Law Group (“Zee Group”),
 3   the attorneys for Collect.
 4        Hernandez filed a second ex parte motion for turnover on
 5   November 21, 2011, this time directed at Zee Group.   The
 6   bankruptcy court granted that motion and entered the second
 7   turnover order on November 30, 2011.
 8        In response, on December 7, 2011, Collect filed an
 9   application to vacate the second turnover order, arguing that
10   there was no legal basis to require it to turn over the funds to
11   Hernandez.   Hernandez responded on December 19, 2011, alleging
12   that turnover was proper and, that by not paying over the funds
13   to him, Collect had violated the § 362(a) automatic stay; he
14   sought to recover $1,100 on account of Collect’s conduct as
15   damages under § 362(k).
16        After conducting a hearing on Collect’s motion on
17   January 19, 2012, the bankruptcy court entered a Memorandum of
18   Decision on March 19, 2012.   The court explained its reasons for
19   having granted both turnover motions and concluded that, by not
20   paying the seized funds to Hernandez, Collect had violated the
21   § 362(a) automatic stay:
22        Upon receiving notice of the Debtor's September 27,
          2011 bankruptcy petition, Collect had an affirmative
23        obligation to cease its collection procedures and
          notify the Sheriff to return the property. It failed
24        to do so, resulting in the Sheriff's release of the
          Funds to Collect on November 7, 2011. This release
25        violated the automatic stay and was void (citations
          omitted). Collect and its attorney, Tappan Zee, were
26        given notice of Debtor's Chapter 7 petition on the date
          of filing, September 27, 2011. Bankruptcy Code section
27        362(k) permits a person injured by any willful
          violation to recover actual and punitive damages, as
28        sanctions for willful violations. . . . In the

                                     -3-
 1        Debtor's response to Collect's opposition, the Debtor
          asserted $1,100 in damages from Collect's violation of
 2        the automatic stay. Upon an application for fees and
          costs by the Debtor, subject to response from Collect,
 3        the Court will consider an order assessing Debtor's
          actual damages for Collect's violation of the automatic
 4        stay.
 5   In re Hernandez, 468 B.R. 396, 405-06 (Bankr. S.D. Cal. 2012),
 6   aff’d, 483 B.R. 713 (9th Cir. BAP 2012).5
 7        The bankruptcy court entered an order denying Collect’s
 8   motion on April 2, 2012 (“Order Denying Vacatur”), which again
 9   directed Collect to turn over the $712.39 to Hernandez no later
10   than seven business days after entry of the order and provided
11   that the court would “consider an order assessing Debtor’s actual
12   damages for Collect’s violation of the automatic stay upon an
13   Application for Fees and Costs by [Hernandez].”
14        On April 4, 2012, Hernandez filed a Motion for Costs,
15   Damages and Fees Incurred for Willful Violation of the Automatic
16   Stay (the “Damages Motion”).   The Damages Motion sought attorneys
17   fees and costs of $3,572.06, actual damages of $100.00, and
18   punitive damages of $7,225.00 relating to Collect’s stay
19   violation.
20        Collect appealed the Order Denying Vacatur on April 9, 2012.
21   However, Collect did not seek a stay pending appeal from either
22   the bankruptcy court or the Panel.    In addition, in its Statement
23   of Issues on Appeal filed in the bankruptcy court, Collect did
24   not challenge the bankruptcy court’s ruling that it had violated
25   the automatic stay.
26
27        5
             For clarity, we will refer to the BAP decision as
28   Hernandez II.

                                     -4-
 1        On April 27, 2012, Collect finally turned over the $712.39
 2   to counsel for Hernandez.
 3        While the appeal in Hernandez II was pending, Hernandez
 4   filed two other motions in the bankruptcy court, one to avoid
 5   Collect’s judgment lien under § 522(f) (the “Avoidance Motion”),
 6   and a second asking the bankruptcy court to find that Collect was
 7   in contempt for its failure to timely turn over the $712.39
 8   within the seven-day time period specified in the Order Denying
 9   Vacatur (the “First Contempt Motion”).
10        The bankruptcy court conducted a hearing on the three
11   Hernandez motions (i.e., Damages, Avoidance and First Contempt)
12   on June 14, 2012.   At the hearing, the Avoidance Motion was
13   granted, the First Contempt Motion was denied because Collect had
14   by then complied with the Order Denying Vacatur, and the Damages
15   Motion was granted.   The court awarded Hernandez his requested
16   attorney’s fees of $3,572.06, but denied his request for any
17   additional damages.
18        The bankruptcy court directed Hernandez to prepare and lodge
19   a proposed order concerning the Damages Motion.    Hernandez lodged
20   a proposed order on June 25, 2012.    On July 2, 2012, Collect
21   objected to the order proposed by Hernandez asserting that the
22   bankruptcy court, at the hearing on June 14, 2012, had directed
23   Hernandez to submit a form of "judgment," not an order.    It also
24   lodged a proposed form of judgment for entry by the court.
25        On July 6, 2012, the bankruptcy court entered an Order Re
26   Further Briefing.   It acknowledged Collect's objection to the
27   Hernandez proposed order and conceded that it may have "misspoke"
28   at some point in the hearing.   However, the court indicated that

                                     -5-
 1   its intent, as reflected in the Memorandum of Decision and its
 2   tentative ruling, was that an order, not a judgment, be submitted
 3   for entry.    The court cited to case law in support of its
 4   position that an order rather than a "mere judgment" was proper
 5   in this context.6   However, the court invited Collect to submit
 6   further arguments on this point: "If Collect has case law to
 7   support its argument that the damages from the automatic stay
 8   should merely be a judgment instead of an order, it may submit
 9   further briefing by July 13, 2012.     Otherwise, the Court will
10   enter an order for Collect to pay Debtor's attorney's fees within
11   15 days."
12        Collect did not respond to the bankruptcy court's invitation
13   to submit a brief, and the bankruptcy court entered the order on
14   the Damages Motion on July 19, 2012 (the “Attorney Fee Order”).
15        On December 14, 2012, the BAP affirmed the Order Denying
16   Vacatur.    Hernandez II, 483 B.R. at 726.   Collect did not appeal
17   the BAP’s decision.
18        On April 22, 2013, Hernandez filed a second motion for
19   contempt against both Collect and Zee Group (the “Second Contempt
20   Motion”).    It alleged that, while the Attorney Fee Order had been
21   entered on July 19, 2012, directing Collect to pay $3,572.06 to
22
23        6
             See In re Jones, 2007 Bankr. LEXIS 4649, at *1 (noting
     that an order to show cause was entered against creditor for
24
     failure to pay sanction as required by order); In re Seaspire,
25   Inc., 63 B.R. 44, 45 (Bankr. M.D. Fla. 1986) (ordering creditor
     to appear to explain why she should not be held in contempt for
26   failing to pay damages for violation of the automatic stay); see
27   also Shuffler v. Heritage Bank, 720 F.2d 1141, 1148 (9th Cir.
     1983) (explaining that sanctions can be compensatory or
28   coercive).

                                      -6-
 1   Hernandez’s attorney within fifteen days, and while Hernandez had
 2   again demanded payment from Collect within five days on
 3   January 2, 2013, no payment had been made.   The Second Contempt
 4   Motion asked the bankruptcy court to enter an Order to Show Cause
 5   (“O.C.”) why Collect should not be held in civil contempt
 6   pursuant to Rule 9020 and § 105(a).
 7        Collect responded to the Second Contempt Motion on May 6,
 8   2013.   While not denying its failure to pay Hernandez, it argued
 9   that because only Collect, and not its attorneys, was named in
10   the Attorney Fee Order, Zee Group could not be held in contempt;
11   that contempt was an improper procedure for enforcement of the
12   Attorney Fee Order; and that the Second Contempt Motion was moot
13   because it sought the same relief as the First Contempt Motion,
14   which had been denied.   Collect did not comply with the Attorney
15   Fee Order.
16        Before the hearing on the Second Contempt Motion on May 23,
17   2013, the bankruptcy court issued a tentative ruling indicating
18   its intent to hold Collect in civil contempt if the Attorney Fee
19   Order had not been complied with, and the funds paid to
20   Hernandez, before the hearing.   After the hearing, the court took
21   the issues under advisement.
22        The bankruptcy court entered an Order re Second Motion for
23   Contempt on June 12, 2013 (the “Contempt Order”).   First, the
24   court agreed that contempt was not available as against Collect’s
25   attorneys.   Second, the court ruled that the Second Contempt
26   Motion was not moot because it addressed Collect’s failure to
27   comply with the Attorney Fee Order, while the First Contempt
28   Motion focused on Collect’s failure to obey the turnover orders.

                                      -7-
 1        The bankruptcy court then discussed Collect’s third
 2   argument, that the Attorney Fee Order was merely a judgment for
 3   damages, rather than an order to pay sanctions, such that it
 4   could not be enforced via contempt.   The court reasoned that,
 5   even if it had been an error for the court to enter an order,
 6   instead of a judgment, the Attorney Fee Order should have been
 7   obeyed.   The court noted that the context of the proceedings
 8   clearly established that the Attorney Fee Order was based on an
 9   implicit finding of contempt, rather than merely a damages award.
10   And finally, citing to the BAP’s decision in Rosales v. Wallace
11   (In re Wallace), 490 B.R. 898 (9th Cir. BAP 2013), the court
12   explained that an order to enforce compliance with a previous
13   sanctions order resulting from a party’s misconduct is not an
14   “ordinary money judgment” enforceable only through Civil Rule 69.
15   The bankruptcy court found that clear and convincing evidence
16   showed that Collect had knowingly violated a definite and
17   specific court order (the Attorney Fee Order), had ignored the
18   Court’s rejection of its judgment theory, and had refused to pay
19   the Attorney Fee Order.
20        The bankruptcy court ordered Collect to show cause why it
21   should not pay $3,572.06, the amount due on the Attorney Fee
22   Order, to Hernandez within seven days.   Collect was also ordered
23   to pay the attorney’s fees incurred by Hernandez in seeking
24   compliance with the Attorney Fee Order, in an amount to be
25   determined after Hernandez filed a fee application.
26        Collect filed a timely appeal of the Contempt Order on
27   June 21, 2013.   Hernandez sought from the bankruptcy court, and
28   was granted, a stay pending appeal, on condition that it provide

                                     -8-
 1   a bond, which it did.
 2                                JURISDICTION
 3        The bankruptcy court had jurisdiction under 28 U.S.C.
 4   §§ 1334 and 157(b)(2)(A) and (O).        We have jurisdiction under
 5   28 U.S.C. § 158.
 6                                   ISSUE
 7        Whether the bankruptcy court abused its discretion in
 8   finding Collect in contempt for violating the Attorney Fee Order.
 9                             STANDARD OF REVIEW
10        The bankruptcy court’s civil contempt order and sanctions
11   are reviewed for abuse of discretion.        Rediger Inves. Servs. v.
12   H Granados Commc’ns, Inc. (In re H Granados Commc’ns, 503 B.R.
13   726, 731-32 (9th Cir. BAP 2013).        The abuse of discretion
14   standard has two parts.    First, we consider whether the
15   bankruptcy court applied the correct legal standard; and second,
16   we must decide whether the court's factual findings supporting
17   the legal analysis were clearly erroneous.        Alakozai v. Citizens
18   Equity First Credit Union (In re Alakozai), 499 B.R. 698 (9th
19   Cir. BAP 2013) (citing United States v. Hinkson, 585 F.3d 1247,
20   1261-62 (9th Cir. 2009) (en banc)).
21                                 DISCUSSION
22                                     A.
23        To hold a party in civil contempt, the bankruptcy court must
24   find by clear and convincing evidence that the offending party
25   knowingly violated a definite and specific court order.        Knupfer
26   v. Lindblad (In re Dyer), 322 F.3d 1178, 1190 (9th Cir. 2003).
27   The burden then shifts to the offending party to show why it was
28   unable to comply with the order.        FTC v. Affordable Media,

                                       -9-
 1   179 F.3d 1228, 1239 (9th Cir. 1999).
 2        In the Contempt Order, the bankruptcy court explained:
 3        Even if the court was incorrect in entering an order
          rather than a judgment for damages, which it was not,
 4        this is no defense to Collect’s noncompliance with the
          Attorney Fee Order. If Collect thought the Attorney
 5        Fee Order was in error, it was incumbent upon it to
          submit briefing before the Court ruled, or appeal the
 6        Attorney Fee Order and seek to stay the order pending
          appeal. (Citations omitted). . . . In short, the
 7        evidence is clear and convincing that Collect knowingly
          violated a definite and specific court order by
 8        ignoring the Court’s clear rejection of his judgment
          theory and refusing to pay the attorney’s fees ordered
 9        by the Attorney Fee Order.
10   Contempt Order at 2.
11        In its analysis, the bankruptcy court correctly invokes a
12   long-standing rule of law:   “If a person to whom a court directs
13   an order believes that order is incorrect the remedy is to
14   appeal, but, absent a stay, he must comply promptly with the
15   order pending appeal."   This principle was articulated by the
16   U.S. Supreme Court in Maness v. Meyers, 419 U.S. 449, 458 (1975),
17   although its origin relates back in the Court’s case law to at
18   least 1922 with Howat v. Kansas, 258 U.S. 181 (1922).   The Ninth
19   Circuit frequently applies the rule.   See, e.g., Espinosa v.
20   United Student Aid Funds, 553 F.3d 1193, 1205 (9th Cir. 2008)
21   (holding that a creditor is not free to violate a bankruptcy
22   court order because it has doubts as to the validity of the
23   order) aff’d, 559 U.S. 260, 279 (2010); United States v. Galin,
24   222 F.3d 1123, 1127 (9th Cir. 2000); Crystal Palace v. Mark Twain
25   Indus., Inc. (In re Crystal Palace Gambling Hall, Inc.), 817 F.2d
26   1361, 1365 (9th Cir. 1987) (cited as authority by the bankruptcy
27   court in this appeal).
28        The Maness rule applies even when the statute or case law

                                     -10-
 1   underlying the trial court’s order is later ruled
 2   unconstitutional.   United States v. Pescatore, 637 F.3d 128, 144
 3   (2d Cir. 2011).   And disregard of the requirements of the rule is
 4   punishable by contempt proceedings.    Id.   However, to find
 5   contempt for violation of a court’s order, the subject court
 6   order must have been lawful.   Shilitani v. United States,
 7   384 U.S. 364, 370 (1966).   But, in this context, “lawfulness” is
 8   not a high standard, depending only on whether the court entering
 9   the order had subject matter jurisdiction over the action and
10   personal jurisdiction over the parties affected by the order.
11   Maness, 419 U.S. at 459 (“an order issued by a court with
12   jurisdiction over the subject matter and person must be obeyed by
13   the parties until it is reversed by orderly and proper
14   proceedings.").
15                                   B.
16        As the bankruptcy court found, Collect apparently decided
17   that because the Attorney Fee Order was a “judgment,” and not an
18   order, it need not voluntarily obey it but, instead, the onus was
19   on Hernandez to use execution or some other enforcement means to
20   collect the sums due under the Attorney Fee Order.     Collect’s
21   decision was incorrect and had consequences.
22        First, we note that Collect has never asserted that the
23   bankruptcy court lacked subject matter jurisdiction over this
24   dispute, or personal jurisdiction over Collect to enter the
25   Attorney Fee Order.   Indeed, the Attorney Fee Order was entered
26   by the bankruptcy court in connection with a pending bankruptcy
27   case, to enforce the § 362(a) automatic stay, and to compel a
28   creditor to recompense Hernandez for damages Collect caused him

                                     -11-
 1   by its disregard of that stay.    Clearly, the bankruptcy court had
 2   subject matter jurisdiction over the contempt proceedings.
 3   See 28 U.S.C. § 1334(b)(establishing jurisdiction in the district
 4   courts for “civil proceedings . . . arising in or related to a
 5   case under title 11.”); 28 U.S.C. § 157(a) (authorizing district
 6   courts to refer all such proceedings to the bankruptcy court);
 7   28 U.S.C. § 157(b)(1),(2)(A), (E), and (O) (authorizing
 8   bankruptcy court to enter a final judgment in core proceedings,
 9   including “matters concerning administration of the estate,”
10   “orders to turn over property of the estate,” or in “proceedings
11   affecting . . . the adjustment of the debtor-creditor . . .
12   relationship”).    Collect was also subject to the personal
13   jurisdiction of the bankruptcy court, was afforded appropriate
14   due process, and appeared and was heard before the bankruptcy
15   court entered its orders.    See Rules 9014 (contested matters);
16   9020 (contempt).
17        Moreover, as we explain below, Collect’s various arguments
18   challenging the contempt finding in the bankruptcy court, and now
19   on appeal, all lack merit.    But, again, even if Collect were
20   correct, it can not dispute that the bankruptcy court issued a
21   lawful order, the Attorney Fee Order, which required it to act
22   and it defiantly chose not to.    If Collect believed that order
23   was improper in some respect, its sole option was to appeal the
24   order, and to seek a stay of its duty to perform pending that
25   appeal.   Instead, as the bankruptcy court correctly observed,
26   Collect consciously decided not to comply with the Attorney Fee
27   Order, it did not appeal, and it did not seek a stay.
28   Effectively, Collect did nothing, and doing nothing when the

                                      -12-
 1   Attorney Fee Order clearly and definitely compelled it to pay
 2   Hernandez for the attorneys fees and costs he incurred in
 3   prosecuting the stay violation motions amply demonstrates
 4   Collect’s contempt.
 5                                    C.
 6        Collect’s arguments in support of its legal position fall
 7   into two categories.   It first contends that the bankruptcy
 8   court’s Attorney Fee Order is a “money judgment,” and therefore,
 9   it must be enforced as a judgment, not via contempt proceedings.
10   Second, Collect insists that the bankruptcy court erred in
11   finding Collect in contempt for failing to pay a compensatory
12   order.
13        Collect’s first argument in unpersuasive.    It relies on
14   Rules 9001(7) (“‘Judgment’ means any appealable order.”), 9002(5)
15   (“‘Judgment’ includes any order appealable to an appellate
16   court.”), and Civil Rule 69(a), which is applicable in contested
17   matters via Rules 7069 and 9014(c) (“A money judgment is enforced
18   by a writ of execution, unless the court orders otherwise.”).
19   But Collect’s argument proves too much, because, at bottom, its
20   “judgment theory” would treat all orders issued by a bankruptcy
21   court as judgments.
22        Collect cites two cases for the proposition that all of the
23   bankruptcy court’s orders are, by virtue of these rules,
24   equivalent to money judgments.    Collect’s Br. at 12 (citing
25   Newland v. Super. Ct., 40 Cal. App. 4th 608, 615 (1995); SEC v.
26   Naftalin, 460 F.2d 471, 775 (8th Cir. 1972)).    Neither case
27   applies in this context.
28        The Newland case deals with discovery sanctions under

                                      -13-
 1   California law.   In it, the California court states that
 2   “monetary sanction orders are enforceable through the execution
 3   of judgment laws. These orders have the force and effect of a
 4   money judgment and are immediately enforceable through execution,
 5   except to the extent the trial court may order a stay of the
 6   sanction.”   Newland, 40 Cal. App. 4th at 615.   Of course, Newland
 7   deals specifically with California’s procedural rules; it does
 8   not speak to whether, or which, orders entered in federal civil
 9   proceedings are money judgments that must be enforced via a writ
10   of execution, as opposed to contempt proceedings.
11         Collect’s second authority, Naftalin, is also of no
12   consequence here.   Quoting the court in its brief, Collect points
13   out that, once the finding of contempt has been made and a
14   sanction imposed, the order acquires all the “elements of
15   cooperativeness and consequence necessary to be possessed by any
16   judicial order to enable it to have the status of a final
17   decision under [28 U.S.C.] § 1291.”    Naftalin at 475.   But
18   Collect does not correctly quote the text of the Eighth Circuit’s
19   decision, which instead actually reads, “Until a sentence or
20   sanction has been made to exist as to a contempt adjudication,
21   the situation is lacking in the elements of operativeness and
22   consequence necessary to be possessed by any judicial order to
23   enable it to have the status of a final decision under § 1291.”
24   Id.    Naftalin also does not seem to have any bearing on what
25   constitutes a money judgment enforceable by execution.
26         Collect searches unsuccessfully for reliable authority that
27   a final order awarding monetary sanctions is a money judgment for
28   purposes of Civil Rule 69(a).   Collect cites four cases that

                                     -14-
 1   simply apply Civil Rule 69(a)’s requirement that the proper means
 2   of securing compliance with a money judgment is to seek a writ of
 3   execution.   Collect’s Op. Br. at 20.      The cases do not attempt to
 4   distinguish between money judgments and a stay violation
 5   sanctions order, nor more generally, are they insightful as to
 6   whether final orders must be enforced solely through writs of
 7   execution.
 8        Of the four cases, the first is Hilao v. Est. of Marcos,
 9   95 F.3d 848 (9th Cir. 1996).     This case involved an attempt to
10   enforce a $2 billion judgment from the District Court of Hawaii
11   in the Central District of California against the estate of
12   former President Ferdinand Marcos of the Philippines.       The court
13   held that the size of the judgment and difficulty of enforcing
14   the judgment merited its treatment as a money judgment under
15   Civil Rule 69(a).    Id. at 855.
16        The second case is Shuffler v. Heritage Bank, 720 F.2d 1141
17   (9th Cir. 1983).    The case dealt with enforcement of a money
18   judgment, plus $500 per day in fines.       Although there is dicta in
19   the decision about Civil Rule 69(a), the court did not base its
20   decision on Civil Rule 69(a), but only ruled that the party was
21   in contempt for noncompliance with the earlier judgment, and
22   remanded to the district court for determination of the amount of
23   fine.   Id. at 1148-49.
24        The third case is Aetna Cas. & Sur. Co. v. Markarian,
25   144 F.3d 346, 349 (1st Cir. 1997).        The case holds that where a
26   “money judgment” is entered in federal court, the enforcement is
27   by writ of execution.     Again, the size and complexity of the
28   judgment and difficulty of enforcement made the writ of execution

                                        -15-
 1   under Civil Rule 69(a) the proper means of enforcement.      Id. at

 2   349.

 3          The fourth case is Combs v. Ryan’s Coal Co., 785 F.2d 970,

 4   980 (11th Cir. 1986).    Here the issue was enforcement of a money

 5   judgment against nonparties.    The amount was substantial

 6   ($750,000), and again, the court determined it was a money

 7   judgment enforceable under Civil Rule 69(a), in part because it

 8   was a large judgment and involved nonparties.

 9          These cases can be contrasted with this appeal.   Here, the

10   bankruptcy court found in the Attorney Fee Order that Collect had

11   willfully violated the automatic stay by declining to release the

12   seized funds to Hernandez, and awarded Hernandez compensatory

13   sanctions under § 362(k).    Collect did not appeal that order.

14   And although Collect argues that the Attorney Fee Order was not a

15   sanction order for misconduct, this is quibbling.    The Attorney

16   Fee Order directed Collect to pay the damages it had caused

17   Hernandez to incur, consisting of attorneys fees and costs, in

18   response to Collect's violation of the § 362(a) automatic stay.

19   Simply put, Collect's conduct was inappropriate when measured

20   against the Code, and the Attorney Fee Order cannot fairly be

21   characterized as anything other than a sanction.    The cases cited

22   by Collect all deal with judgments entered in business disputes,

23   not sanctions for misconduct.

24          As compared to the dearth of support for Collect’s position,

25   BAP case law supports the bankruptcy court’s view that when a

26   party’s willful failure to comply with an order constitutes

27   misconduct it may be remedied via contempt sanctions.

28          In Rosales v. Wallace (In re Wallace), 490 B.R. 898 (9th

                                      -16-
 1   Cir. BAP 2013), in a first contempt order, a creditor was found

 2   by the bankruptcy court to have violated the § 524(a) discharge

 3   injunction.   The court ordered the creditor to pay sanctions to

 4   the debtor, including attorney’s fees, within sixty days.      The

 5   creditor did not pay.   The debtor filed a second contempt motion

 6   to compel payment.   The creditor argued that the first contempt

 7   order was a money judgment that could only be enforced by a writ

 8   of execution under Civil Rule 69(a).    After a hearing, the

 9   bankruptcy court found creditor in contempt and order them to pay

10   the original sanctions order.   Creditor then appealed to the BAP.

11   Id. at 904.

12        The Panel first dismissed creditor’s argument that an order

13   to pay sanctions is a “judgment” for purposes of Civil

14   Rule 69(a), and Rules 9001(7) and 9002(5): “[T]hese Rules merely

15   provide definitions for the word ‘Judgment’ as ‘any appealable

16   order’ and ‘any order appealable to an appellate court.’    We fail

17   to see how these definitions would transform what is clearly an

18   order to pay monetary sanctions within a specified time period

19   into a money judgment.”   Id. at 906.

20        The Panel ultimately ruled that Civil Rule 69(a) did not

21   apply to a bankruptcy court’s monetary sanction for violation of

22   a previous order:

23        Despite Civil Rule 69's mandate for the proper
          enforcement of money judgments, we are persuaded . . .
24        that a court's monetary sanction for a contemnor's
          misconduct is not an "ordinary" money judgment, and
25        therefore the use of the contempt power is a proper
          method to enforce a sanction for misconduct.
26        [Cleveland Hair Clinic, Inc. v. Puig], 106 F.3d 165,
          166 (7th Cir. 1997)("Use of the contempt power is an
27        appropriate way to enforce a sanction for misconduct,
          which is not an ordinary money judgment.")(citing
28        Alpern v. Lieb, 11 F.3d 689, 690 (7th Cir. 1993)). See

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 1        Loftus v. Se. Pa. Transp. Auth., 8 F.Supp.2d 464, 468
          (E.D. Pa. 1998), aff'd, 187 F.3d 626 (3d Cir. 1999)
 2        (table case)(citing Cleveland Hair Clinic and holding
          that the use of the contempt power to enforce a
 3        sanction for misconduct is appropriate because a
          sanction for misconduct is not an ordinary money
 4        judgment); Eng. v. Goodcents Holdings, Inc., 2009 U.S.
          Dist. LEXIS 77801, 2009 WL 2835201, at *2 (N.D. Ga.
 5        Aug. 31, 2009)(rejecting plaintiff's argument that a
          writ of execution was exclusive remedy for violating
 6        prior sanctions order and holding that contempt
          proceeding was proper remedy for plaintiff's failure to
 7        comply with the order awarding defendant attorney's
          fees for plaintiff's unreasonable continuation of
 8        litigation); SD Prot., Inc. v. Del Rio, 587 F.Supp.2d
          429, 434-36 (E.D.N.Y. 2008)(holding party in contempt
 9        for failing to comply with prior order to pay monetary
          sanction imposed for delaying litigation).
10
11   Id. at 907.
12        Collect’s argument that the Attorney Fee Order is a money
13   judgment that must be enforced through a writ of execution under
14   Civil Rule 69(a) is inconsistent with In re Wallace.      We hold
15   that the Attorney Fee Order was a definite and specific order
16   that Collect knowingly elected to disregard.      Accordingly, the
17   bankruptcy court did not abuse its discretion in finding Collect
18   in contempt.   Id. at 908.
19                                  D.
20        There is one potential element of confusion in the
21   bankruptcy court’s Contempt Order that Collect identifies:       Were
22   the amounts that Collect was ordered to pay Hernandez in the
23   Attorney Fee Order compensatory damages under § 362(k), or
24   contempt damages under § 105(a)?      Earlier in the case, the
25   bankruptcy court based the Attorney Fee Order on § 362(k).
26   Then, in the Contempt Order, the bankruptcy court stated that
27   “the record also supports the Court finding Collect in contempt
28   in the Attorney Fee Order under the standards of 11 U.S.C.

                                    -18-
 1   § 105(a).”    Contempt Order at 5.
 2        There does not appear to be any prohibition in the case law
 3   on awarding attorneys fees to an individual debtor to remedy a
 4   stay violation under either § 105(a) or §362(k), provided the
 5   different procedural requirements for such an award are met, and
 6   the award does not include punitive damages.    Schwartz-Tallard v.
 7   Am. Servicing Co. (In re Schwartz-Tallard), 473 B.R. 340, 351
 8   (9th Cir. BAP 2012).    And, recall, as the bankruptcy court
 9   observed in its Contempt Order, “[t]he [Order re Further
10   Briefing] clearly invited the parties to address the contempt
11   issue to enable the Court to determine which of the two proposed
12   orders to enter, so Collect was aware that the Court was
13   reconsidering its tentative ruling and awarding the [Attorney Fee
14   Order] on the basis of the First Contempt Motion rather than the
15   Damages Motion when it entered the Attorney Fee Order as a
16   contempt order, rather than merely a damages award.”    Contempt
17   Order at 6.
18        The Panel has addressed this issue, and in doing so,
19   rejected Collect’s argument that the Ninth Circuit’s opinion in
20   Sternberg v. Johnson, 595 F.3d 937 (9th Cir. 2008), limits
21   damages for violation of the automatic stay to those specified in
22   § 362(k):
23        Sternberg does not limit the recovery of fees and costs
          to § 362(k); instead, a debtor's recovery of damages is
24        also available under § 105(a). This is confirmed in
          the decision itself, which provides that the basis for
25        the decision was the statutory language of § 362(k),
          not the bankruptcy court's civil contempt authority
26        under § 105(a). See [Sternberg, 595 F.3d at] 946 n.3
          ("As this opinion does not consider the civil contempt
27        authority of the court, it does not limit the
          availability of contempt sanctions, including attorney
28        fees, for violation of the automatic stay, where

                                      -19-
 1        otherwise appropriate.").
 2   Rediger Inves. Corp. v. H Granados Commc’ns, Inc. (In re
 3   H Granados Commc'ns, Inc.), 503 B.R. 726, 734 (9th Cir. BAP
 4   2013).
 5        At bottom, it is of no consequence in this case whether the
 6   Attorney Fee Order was based upon the bankruptcy court’s inherent
 7   power to punish contempts under § 105(a), as opposed to its power
 8   to compensate debtors for stay violations under § 362(k).     The
 9   Attorney Fee Order was a lawful order of the bankruptcy court
10   that Collect defied for almost two years.     We find no abuse of
11   discretion in the bankruptcy court’s decision to find Collect in
12   contempt for its failure to obey the Attorney Fee Order.
13                               CONCLUSION
14        Collect knowingly violated a lawful, specific order of the
15   bankruptcy court directing it to pay compensatory damages to
16   Hernandez incurred as a result of Collect’s violation of the
17   automatic stay.   Instead of appealing the order and requesting a
18   stay pending appeal, Collect did nothing.     Its arguments to
19   justify its conduct lack merit.     Even were it correct, though,
20   Collect cannot avoid the consequences of its disregard of the
21   basic tenet that lawful orders of a court must be obeyed, and
22   absent compliance, as the disobedient party, it may be held in
23   contempt.
24        We AFFIRM the Contempt Order of the bankruptcy court.
25
26
27
28

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