Emory Bankruptcy Developments Journal

Don’t Rely on Plain Meaning, Trust Your Intuition: Trustees are Not “Individuals” Eligible to Recover Punitive Damages Under § 362(k)
Kelly Gould Executive Marketing Editor, Emory Bankruptcy Developments Journal; J.D. Candidate, Emory University School of Law (2013); B.A., University of Virginia (2008). I would like to thank the following, without whom this Comment would not have been possible: Judge Paul Bonapfel, who, despite his busy schedule, spent countless hours helping me develop a topic, navigate the law and edit every draft along the way; Professor Joanna Shepherd-Bailey, for her much needed expertise and support; Dr. Jacob and Laurie Teitelbaum, for their fresh insight on an unfamiliar topic; Thomas Hsieh and his editing team, for helping me polish the final product; and my family and friends, especially Dan Payne, for providing unwavering support and maintaining their patience (even when I was losing my own) during this process.

Abstract

To help debtors obtain a fresh start post-bankruptcy, § 362(a) of the Code provides for an automatic stay, which enjoins creditors from taking any collection action against a debtor immediately upon the debtor’s filing for bankruptcy. Originally, victims of a stay violation relied solely on the bankruptcy court’s contempt power to recover damages. In 1984, Congress added a new subsection to § 362, now codified as § 362(k), to specifically authorize bankruptcy courts to award damages to an “individual injured” by a violation of the stay. Most importantly, § 362(k) permits bankruptcy courts to award punitive damages, which typically are not an available remedy for civil contempt.

The circuit courts are split on whether a trustee may be considered an “individual injured” under § 362(k). The Third and Fourth Circuits hold that non-natural persons like trustees cannot recover damages under § 362(k), whereas the Second, Eighth, and Ninth Circuits hold that they can. Because the Code’s commercial and remedial provisions affect society in pervasive ways, the importance of a consistent interpretation of the Code should not be underestimated.

Since punitive damages are only available under § 362(k), whether a trustee is considered an “individual” for the purposes of this statute can significantly affect his total damage award. Similarly, the issue of whether a party is an “individual” arises when other parties, such as chapter 11 debtors or non-violating creditors that are corporations or other business entities, seek to remedy a violation of the stay.

Utilizing the Supreme Court’s established method of interpreting the Code, this Comment first argues that the term “individual” under § 362(k) should only include entities that are (1) natural persons and (2) injured by the violation of the stay. Because a trustee is not a natural person, but a representative of the bankruptcy estate, and is not personally injured by a violation of the stay, § 362(k) should not protect the trustee.

Next, this Comment applies a law-and-economics perspective to argue that awarding punitive damages to a trustee runs contrary to the policy rationale behind punitive damages. Thus, to be in accordance with congressional intent, a trustee should not be considered an “individual” under § 362(k) and should instead have to rely on the contempt remedy to receive damages for a violation of the stay.

Introduction

The stay provision in § 362(a) of the Code 111 U.S.C. § 362 (2006). is a fundamental protection designed to offer debtors the “breathing spell” they need from creditors to be able to obtain a “fresh start” after bankruptcy. 2H.R. Rep No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions.”). The automatic stay, which takes effect upon a debtor’s filing for bankruptcy, penalizes creditors who take any action against the debtor’s property without the court’s approval. 3See 3 Collier on Bankruptcy ¶ 362.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2012). Despite the automatic stay’s protection, however, bankruptcy courts are filled with heartbreaking stories of debtors whose lives were upended by creditors who willfully violated the stay by seizing debtors’ homes and cars, 4Smith v. Homes Today, Inc. (In re Smith), 296 B.R. 46, 52 (Bankr. M.D. Ala. 2003) (creditor repossessed a debtor’s mobile home while debtor was physically inside it, requiring her to jump from the moving home to the ground). shutting off debtors’ utilities, 5See, e.g., Aponte v. Aungst (In re Aponte), 82 B.R. 738, 745 (Bankr. E.D. Pa. 1988) (landlord repeatedly turned off the heat and hot water to the apartment rented by the tenant-debtor, even though the landlord knew of the debtor’s bankruptcy filing). and even repossessing debtors’ personal belongings 6In re Baker, 183 B.R. 30, 31 (Bankr. D.R.I. 1995). to collect outstanding debts.

One such story is of Robert and Cindy Baker, chapter 7 debtors whose outstanding debt included a purchase-money loan for household furniture. 7Id. Even after receiving notice of the Bakers’ filing, the creditor attempted to repossess the furniture to satisfy a small, unpaid loan, thereby violating the automatic stay. 8Id. This creditor also violated the automatic stay in another bankruptcy proceeding by trying to repossess other debtors’ furniture. 9Id. at 32. The bankruptcy judge noted that the debtor in the other bankruptcy proceeding was in tears at the prospect of losing her furniture. 10Id. at 32 n.4. While the judge found no actual loss and no basis for compensatory damages, he nevertheless instructed the creditor to pay punitive damages to deter future violations. 11Id. at 33.

Awarding punitive damages to debtors like those in In re Baker is intuitively appropriate because debtors rely on the automatic stay to offer guidance in times of extreme financial difficulty, to ensure that their property will be protected, and to provide relief in case their property is not protected. 12See Collier, supra note 3, ¶ 362.03[1] (“[The stay] provides immediate relief for debtors in financial difficulty and . . . protects individual debtors’ exemption rights, and their ability to avoid liens on exempt property and redeem exempt personal property, by preventing creditors from seizing or selling the property at issue.”). Yet, sophisticated creditors take advantage of a debtor’s vulnerability and lack of familiarity with the bankruptcy rules and proceedings, sometimes maliciously and repeatedly. 13See, e.g., In re Baker, 183 B.R. at 32; Aponte v. Aungst (In re Aponte), 82 B.R. 738, 743, 745–46 (Bankr. E.D. Pa. 1988). The bankruptcy court’s position reflects this intuition. In awarding punitive damages, courts have taken into account the effect of any such repossession of property on a debtor and his family, 14See, e.g., In re Aponte, 82 B.R. at 745. the motive of the repossessing creditor, and the relation between the debtor and the creditor. 15Id. (quoting Allstate Ins. Co. v. A.M. Pugh Assocs., Inc., 604 F. Supp. 85, 99 (M.D. Pa. 1984)).

While punitive damages may be appropriate for individual debtors in some circumstances, the debtor is not always the one to pursue a case against a creditor for violating the automatic stay. As a representative of the bankruptcy estate, a chapter 7 trustee also has standing to seek a remedy for a violation of the automatic stay. 1611 U.S.C. § 323 (2006). However, cases brought by trustees contrast starkly with those brought by individual debtors because a trustee’s case lacks the human element that characterizes cases like In re Baker. Unlike the debtor, the trustee does not suffer from bankruptcy and is simply doing his job to liquidate the debtor’s property and distribute the proceeds to creditors as efficiently as possible. 17See id. § 704(a) (outlining the duties of the trustee).

Furthermore, a trustee likely would not represent the estate against a creditor in a case like In re Baker in which the violation of the stay involved personal property or property with nominal value. In In re Baker, the furniture debt likely would have been either exempted from the estate or worth too little to justify the trustee’s time and expense in asserting the stay. 18See In re Baker, 183 B.R. at 31 (claim for $2,200); 6 Collier, supra note 3, ¶ 704.02[1]–[2]. Because a trustee is not permitted to liquidate exempt property—which often includes homes, cars, and household furniture 19See, e.g., In re Szekely, 936 F.2d 897, 903 (7th Cir. 1991) (finding that the trustee was not entitled to take possession of debtors’ home, which was partially exempt, until the trustee paid off the homestead exemption in cash). —and generally does not liquidate property that has little value to the estate, 206 Collier, supra note 3, ¶ 704.02[1]–[2]. a trustee does not have an interest in claiming a violation of the stay regarding such property. 21In re Preston Lumber Corp., 199 B.R. 415, 416 (Bankr. N.D. Cal. 1996) (“This collateral is encumbered far in excess of its worth. Accordingly, the estate should have no interest in administering these assets and the trustee would be expected to abandon them.”).

Automatic stay violations resulting in small monetary damages but large intangible or emotional harm to the debtor, such as the violation in In re Baker, 22See In re Baker, 183 B.R. at 32 n.4. are precisely the ones that most warrant an award of punitive damages. 23See, e.g., id. at 33. In such cases, punitive damages are necessary to adequately deter creditors from violating the stay and punish violating creditors for their unconscionable actions against vulnerable debtors. 24See discussion infra Part III.B.1.b. In most cases brought by trustees, however, punitive damages are not necessary to accomplish the goals of deterrence and punishment, 25See discussion infra Part III.B. which are consistently cited as the primary policy reasons for awarding punitive damages. 26See Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 823 (B.A.P. 1st Cir. 2002) (“When all is said and done, a punitive damage award will stand unless it clearly appears that the amount of the award exceeds the outer boundary of the universe of sums reasonably necessary to punish and deter the defendant’s conduct.” (quoting Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 81 (1st Cir. 2001))). Compensatory damages and attorneys’ fees are sufficient to reach these ends. 27See discussion infra Part III.B.1.a.

This Comment argues that Congress did not intend for chapter 7 trustees to have access to the same options for recovery that are available to individual debtors. Section 362(k) 28Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the text now contained in § 362(k) was designated as § 362(h). provides an “individual injured” by a violation of the stay with a specific statutory remedy. 2911 U.S.C. § 362(k)(1) (2006). This section enables an “individual” to recover compensatory damages, attorneys’ fees, and even punitive damages. 30Id.

Prior to the enactment of § 362(k), the contempt remedy under § 105(a) 31Id. § 105(a) (authorizing a bankruptcy court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title”); Burd v. Walters (In re Walters), 868 F.2d 665, 669 (4th Cir. 1989) (concluding that § 105(a)’s plain meaning allows the bankruptcy court to hold a party in civil contempt). provided the only remedial option for those victimized by violations of the stay. 32Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment [of § 362(k)], . . . the standard that governed the imposition of sanctions was that which governed contempt proceedings: a party generally would not have sanctions imposed for its violation of an automatic stay as long as it had acted without maliciousness and had had a good faith argument and belief that its actions did not violate the stay.”). However, punitive damages are not available under § 105(a). 33See also Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 885 (8th Cir. 1997) (holding that “the power to punish” through punitive sanctions extends beyond the remedial goals of § 105(a)). The fact that Congress specifically used the term “individual” in § 362(k), rather than a broader term that encompasses both natural and non-natural persons, suggests that Congress intended to preclude trustees and other non-natural persons from recovering punitive damages under § 362(k). 34See discussion infra Part II.A.1.

Currently, the circuit courts are split on whether trustees qualify as individuals for purposes of § 362(k) 35Collier, supra note 3, ¶ 362.12[3]. —the Ninth Circuit holds that a trustee is not an individual, while the Third Circuit holds that a trustee is an individual. 36Compare Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir. 1995), with Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990). While many circuits have not yet ruled on a trustee’s status, the Second, Eighth, Ninth, and Eleventh Circuits have held that corporate debtors, as non-natural persons, should not be considered individuals under § 362(k), while the Fourth Circuit has held the opposite. 37See, e.g., In re Just Brakes Corporate Sys., 108 F.3d at 884; Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1552–53 (11th Cir. 1996); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990). But see Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986) (holding that “individual” includes a corporation). Meanwhile, the district courts and bankruptcy courts of the undecided circuits have issued conflicting holdings on these two issues. 38Compare United States v. Midway Indus. Contractors, Inc. (In re Midway Indus. Contractors, Inc.), 178 B.R. 734, 738 (N.D. Ill. 1995) (corporate debtor is not an individual), Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147 (N.D. Ill. 1992) (corporate debtor is not an individual), Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 762–63 (Bankr. N.D. Ill. 2007) (trustee is not an individual), In re Fashions USA Inc., 301 B.R. 528, 529–30 (Bankr. C.D. Ill. 2003) (corporate debtor is not an individual), and McRoberts v. S.I.V.I. (In re Bequette), 184 B.R. 327, 335 (Bankr. S.D. Ill. 1995) (corporate debtor is not an individual), with Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995) (trustee is an individual), and In re A & C Electric Co., 188 B.R. 975, 980 (Bankr. N.D. Ill. 1995) (corporate debtor is an individual), aff’d sub nom. Divane v. A & C Electric Co., 193 B.R. 856 (N.D. Ill. 1996).

Considering the pervasive nature of bankruptcy law and the importance of the automatic stay provision in bankruptcy cases, 39See H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors.”). it is crucial for the courts to consistently define who is able to recover under § 362(k). 40Eric C. Surette, Annotation, Remedies and Damages for Violations of the Automatic Stay Provisions of the Bankruptcy Code (11 U.S.C.A. § 362(h)), by Parties Other Than the Federal Government, 153 A.L.R. Fed. 463 (1999). Bankruptcy experts assert that divergent interpretations increase costs, harm bankruptcy law by preventing the courts from developing a coherent bankruptcy policy and jurisprudence, and undermine the predictability and stability of the bankruptcy system. 41Karen M. Gebbia-Pinetti, Interpreting the Bankruptcy Code: An Empirical Study of the Supreme Court’s Bankruptcy Decisions, 3 Chap. L. Rev. 173, 176–77 (2000). Furthermore, Justice Sandra Day O’Connor, in a dissenting Supreme Court opinion, highlighted the importance of resolving such issues by aptly pointing out that every dollar spent litigating an issue is a dollar removed from a bankruptcy estate that may already be inadequate to satisfy creditors’ claims. 42 See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 409 (1993) (O’Connor, J., dissenting) (“An entity in bankruptcy can ill afford to waste resources on litigation; every dollar spent on lawyers is a dollar creditors will never see.”).

This Comment argues that a trustee is not an “individual” under § 362(k) and should therefore be limited to the remedies available under § 105, which do not include punitive damages. Part I gives a brief background of the statutory development and legislative history leading up to the 1984 amendment that introduced § 362(k) into the Code, the current Code and its important automatic stay provision, and an explanation of the current dispute over who should qualify as an “individual” under § 362(k).

Part II argues that the plain meaning of “individual” does not include a trustee under principles of statutory interpretation established by the Supreme Court. Furthermore, Part II argues that, even if a trustee is an “individual,” a trustee cannot be “injured” for the purposes of § 362(k) and therefore cannot recover.

Part III analyzes the availability of damages for trustees if they are precluded from recovering under § 362(k). Specifically, this Part uses a law-and-economics approach to argue that punitive damages, which are allowed under § 362(k), are not an appropriate remedy for trustees. Rather, trustees have an adequate remedy under the contempt power found in § 105(a).

Part IV engages in a brief discussion on the possible implications for other players in a stay violation case if trustees are unable to use § 362(k) to recover damages.

Finally, this Comment concludes by urging courts to rule in accordance with the plain meaning of and the congressional intent for § 362(k) until the Supreme Court decides the issue or Congress passes further legislation.

I. Background

A. Evolution of § 362(k), the Damages Provision of the Automatic Stay

The Bankruptcy Reform Act of 1978 codified the automatic stay in § 362 of the Code. 43Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, § 101, 92 Stat. 2549, 2570–72 (codified as amended at 11 U.S.C. § 362 (2006)). Section 362, as originally enacted under the Bankruptcy Reform Act, did not provide any specific statutory guidance regarding the award of damages for violation of the stay. 44Collier, supra note 3, ¶ 362.LH[4][b] (noting that recovery for willful infringement was added with the 1984 amendment). Compare Bankruptcy Reform Act of 1978 § 101, 92 Stat. at 2570–72, with Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352. The courts instead used their contempt power under § 105 to address automatic stay violations. 45See Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment in 1984 of [§ 362(h), which is now § 362(k)], . . . the standard that governed the imposition of sanctions [for a violation of an automatic stay] was that which governed contempt proceedings . . . .”); Collier, supra note 3, ¶ 362.12[2]. Recovery under § 105 is discussed in more detail later in this Comment. 46See discussion infra Part I.C.

As a part of the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress introduced a provision that expressly provided for the recovery of damages by an individual injured by a willful violation of the stay. 47Bankruptcy Amendments and Federal Judgeship Act of 1984 § 304, 98 Stat. at 352. This new provision, § 362(h), was enacted under a subtitle entitled “Consumer Credit Amendments,” 48See id. a collection of “consumer amendments intended to deal with individual bankruptcy” 49Sensenich v. Ledyard Nat’l Bank (In re Campbell), 398 B.R. 799, 814 (Bankr. D. Vt. 2008) (emphasis added) (quoting 3 Collier on Bankruptcy ¶ 362.11[3] (Lawrence P. King ed., 15th ed. rev. 2005)). and “designed to reduce perceived abuses” in chapter 7 filings. 50Voelkel v. Naylor (In re Voelkel), 322 B.R. 138, 144 (B.A.P. 9th Cir. 2005) (citing 6 Collier on Bankruptcy ¶ 707.04 (Alan N. Resnick et al. eds., 15th ed. 2001)).

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) integrated the text of the former § 362(h) into what is now § 362(k)(1). 51Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §§ 305(1)(B), 441(1)(A), 119 Stat. 23, 79, 114 (codified as amended at 11 U.S.C. § 362(k)(1) (2006)). BAPCPA also added § 362(k)(2), which limits the damages that may be recovered under subsection (k)(1) to actual damages as long as the creditor violated the stay under the good faith belief that the stay had been terminated under § 362(h). 52Id. § 441(1)(B), 119 Stat. at 114 (codified as amended at 11 U.S.C. § 362(k)(2)).

Section 362(k) states:

(1) Except as provided in paragraph (2), 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 circumstances, may recover punitive damages.

(2) If such violation is based on an action taken by an entity in the good faith belief that subsection (h) applies to the debtor, the recovery under paragraph (1) of this subsection against such entity shall be limited to actual damages. 5311 U.S.C. § 362(k) (emphasis added). The Bankruptcy Technical Corrections Act of 2010 also later amended § 362, but left § 362(k) unchanged. See Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, § 2(a)(12), 124 Stat. 3557, 3558–59.

B. The Automatic Stay and the Trustee’s Role in a Bankruptcy Proceeding

When a debtor files a bankruptcy petition, “all legal or equitable interests of the debtor in property” become property of the bankruptcy estate. 5411 U.S.C. § 541(a). At the beginning of a chapter 7 bankruptcy case, the U.S. trustee appoints a bankruptcy trustee 55Id. § 701(a)(1). The U.S. trustee appoints the interim trustee who serves, unless the creditors elect a trustee. 6 Collier, supra note 3, ¶ 701.01. “Because, in the vast majority of cases, no trustee is elected by creditors, the interim trustee usually becomes the permanent trustee for the case.” Id. to act as the bankruptcy estate’s representative. 5611 U.S.C. § 323(a). This provision must be read together with 28 U.S.C. § 959(a), which states that “[t]rustees . . . may be sued . . . with respect to any of their acts or transactions in carrying on business connected with such property,” and Fed. R. Bankr. P. 6009, which states that “the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.” This trustee must do “whatever is necessary to advance [the bankruptcy estate’s] interests,” 576 Collier, supra note 3, ¶ 704.03. including accounting for all property received, collecting and liquidating the estate’s property, investigating the debtor’s financial affairs, and providing information requested by a party-in-interest. 5811 U.S.C. § 704(a) (outlining the duties of the trustee in a chapter 7 case). Section 704 does not directly control the duties of trustees in chapter 11, 12, or 13 cases, but most of a chapter 7 trustee’s duties are incorporated by reference in chapters 11, 12, and 13. See id. §§ 1106(a)(1), 1202(b)(1), 1302(b)(1). In addition, a chapter 11 debtor in possession must perform duties similar to many of a chapter 7 trustee’s duties. See id. § 1107(a).

A chapter 7 trustee’s primary duty is to bring as much property into the bankruptcy estate as possible, sell this property, and distribute the proceeds to unsecured creditors. 59See id. § 704(a)(1). Any property that is not exempt from the estate is liquidated, and its value is distributed to unsecured creditors under the direction of the trustee. 60See id. § 507(a) (setting out the distribution priority of unsecured claims).

Although the trustee has authority to represent the estate and dispose of the property that makes up the estate, 61Collier, supra note 3, ¶ 323.01. he does so subject to certain limitations. First, the trustee cannot liquidate property that the debtor has claimed as exempt, unless the exemption claim is disallowed. 62See In re Szekely, 936 F.2d 897, 903 (7th Cir. 1991) (holding that the trustee was not entitled to take possession of debtors’ home, which was partially exempt, until debtors received the value of the homestead exemption in cash). Section 522 allows, in many bankruptcy cases, an individual debtor to “claim exemptions sufficient to remove all unencumbered property from the bankruptcy estate.” 4 Collier, supra note 3, ¶ 522.01 (emphasis added). The types of property that the debtor may typically exempt include the debtor’s residence, an automobile, household furnishings, and property used in the debtor’s trade or business. 11 U.S.C. § 522(d). Second, he usually does not liquidate property that has no value to the estate, including the debtor’s personal belongings. 636 Collier, supra note 3, ¶ 704.02[1]; see also Noland v. Williamson (In re Williamson), 94 B.R. 958, 963 (Bankr. S.D. Ohio 1988); In re Landreneau, 74 B.R. 12, 13 (Bankr. W.D. La. 1987). Lastly, the trustee is strongly discouraged from liquidating assets that only have nominal value. 646 Collier, supra note 3, ¶ 704.02[1]; see also In re Preston Lumber Corp., 199 B.R. 415, 416 (Bankr. N.D. Cal. 1996).

Immediately upon a debtor’s filing for bankruptcy, the automatic stay takes effect, enjoining creditors from taking any action against the debtor, his property, and the bankruptcy estate’s exempt and non-exempt property. 65See 2 Collier Bankruptcy Practice Guide ¶ 38.02[1] (Alan N. Resnick & Henry J. Sommer eds., 2012). A creditor violates the stay if it attempts to enforce a lien against property, repossess property, harass the debtor, or obtain payment from the debtor. 661 Collier, supra note 3, ¶ 1.05[1]. A creditor may, however, seek relief from the automatic stay to pursue its remedies. 67See Collier, supra note 3, ¶ 362.07 [1]. Otherwise, any intentional act that violates the stay is “willful,” regardless of whether the creditor had malice or specific intent to violate the stay. 68Id. ¶ 362.12[3]. If a creditor violates the stay, § 362(k)(1) allows an individual injured by a willful violation of the stay to recover damages, including punitive damages, from the violating creditor. 6911 U.S.C. § 362(k)(1) (2006).

Although any unresolved rights of action arising from the contracts or property of the debtor pass to the trustee, including a cause of action for a violation of the automatic stay, 70Section 323(b) provides the trustee “with the authority and discretion to prosecute, defend or settle, if appropriate in its judgment, causes of action that existed at the time the order for relief was entered.” Collier, supra note 3, ¶ 323.01; see also 11 U.S.C. § 323(b). the trustee should not “bring suit[s] for a small recovery that would not prove to be of net benefit to the estate.” 716 Collier, supra note 3, ¶ 704.03. “The court will respect the trustee’s business judgment in deciding that it is not worth pursuing assets that are limited or difficult to collect.” 72Id.; see also Frostbaum v. Ochs, 277 B.R. 470, 475 (E.D.N.Y. 2002). Because the trustee represents the estate rather than himself or the debtor in any such case, any award of damages adds to the property of the estate 73See Ellis v. Emery (In re Upland Partners), 93 F. App’x 166, 168 (9th Cir. 2004) (“[T]he sanction was for the benefit of the estate . . . .”). and is thus available for distribution to creditors. 74See supra text accompanying note 60 (“Any property that is not exempt from the estate is liquidated, and its value is distributed to unsecured creditors under the direction of the trustee.”); see also 11 U.S.C. § 507(a) (setting out the distribution priority of unsecured claims).

The automatic stay has two primary purposes. 75H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97. First, by stopping “all collection efforts, all harassment, and all foreclosure actions,” “[i]t gives the debtor a breathing spell from his creditors.” 76Id. This respite enables the debtor to resolve his debts through repayment, liquidation, or reorganization. 77See id. At the same time, it protects property that may be necessary for the debtor to have a fresh start. 78See id.; Collier, supra note 3, ¶ 362.03. Second, the stay protects creditors by preserving the estate and ensuring “an orderly liquidation procedure under which all creditors are treated equally.” 79H.R. Rep. No. 95-595, at 340, reprinted in 1978 U.S.C.C.A.N. at 6297; Collier, supra note 3, ¶ 362.03; see also Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 435 (N.D. Ill. 1995). In this way, the automatic stay protects the trustee’s ability to control the liquidation of the property of the estate that he represents.

C. Violating the Automatic Stay as Contempt of Court

Prior to the introduction of what is now codified as § 362(k), courts used their contempt power under § 105 to punish violations of the stay. 80See Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment [of § 362(k)], . . . the standard that governed the imposition of sanctions was that which governed contempt proceedings: a party generally would not have sanctions imposed for its violation of an automatic stay as long as it had acted without maliciousness and had had a good faith argument and belief that its actions did not violate the stay.”). A violation of the automatic stay constitutes contempt of court because the automatic stay is a specific and definite court order. 81See Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1546 (11th Cir. 1996).

Section 105 grants courts independent statutory powers to award compensatory damages and attorneys’ fees for contempt of court to the extent that such awards are “necessary or appropriate” to carry out the provisions of the Code. 8211 U.S.C. § 105(a) (2006). Section 105(a) states: 83Id.

The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process. 84Id.

The remedies available under § 362(k) differ from the remedies under § 105(a) in three ways.

First, damages for a willful violation of the stay are mandatory under § 362(k), whereas they are discretionary under § 105(a). 85See Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 (2d Cir. 1990); Wagner v. Ivory (In re Wagner), 74 B.R. 898, 902–03 (Bankr. E.D. Pa. 1987). The Ninth Circuit in In re Goodman noted this to be the primary difference between § 362(k) damages and § 105(a) civil contempt damages. 86Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir. 1993).

Second, under § 362(k), a court can use its discretion in awarding punitive damages for a stay violation, whereas punitive damages are not available under the civil contempt remedies of § 105(a). 87See Collier, supra note 3, ¶ 362.12; see also Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1559 (11th Cir. 1996); Henkel v. Lickman (In re Lickman), 297 B.R. 162, 195 (Bankr. M.D. Fla. 2003) (“Section 105(a), on the other hand, provides no authority for the imposition of punitive damages for violations of the automatic stay.” (citing In re Jove Eng’g, Inc., 92 F.3d at 1559)). The contempt authority conferred on bankruptcy courts pursuant to § 105(a) is a civil authority, thus allowing only sanctions associated with civil contempt. 88Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003). In this regard, the language of § 105(a) does not explicitly grant the authority to award punitive damages. Rather, the language authorizes only those remedies “necessary” to enforce the Code. 89Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir. 2002); see also Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 885 (8th Cir. 1997) (finding that Congress did not expressly grant “the power to punish” through punitive sanctions under § 105(a)). The sanctions associated with civil contempt—compensatory damages, attorneys’ fees, and the offending creditor’s compliance with the automatic stay—meet that goal, rendering punitive sanctions unnecessary. 90Walls, 276 F.3d at 507.

Third, the procedural requirements of civil contempt under § 105(a), including the standard of proof, are tougher than those of § 362(k). 91Collier, supra note 3, ¶ 362.12[3] (“[T]he imposition of a remedy under a civil contempt procedure may be subject to a stricter standard than is imposed by section 362(k) and does not afford the availability of punitive, in addition to compensatory, damages.”); but see id. (“[A]lthough the standards and procedures for contempt may be slightly more demanding, courts have had little difficulty dealing with and punishing stay violations even without the availability of section 362(k). There is little reason to adopt a tortured reading of the statute in order to provide corporate or partnership debtors or trustees with a remedy for stay violations.” (footnote omitted)). To recover under § 105(a), a party must prove that the creditor knew of the stay and intentionally committed the act in violation of the stay. 92Stockschlaeder & McDonald, Esqs. v. Kittay (In re Stockbridge Funding Corp.), 145 B.R. 797, 805 (Bankr. S.D.N.Y. 1992) (setting forth two requirements for finding civil contempt as being: (1) creditor must have knowledge of specific, precise order of bankruptcy court; and (2) creditor must knowingly violate that order of bankruptcy court), aff’d in part, vacated in part, 158 B.R. 914 (S.D.N.Y. 1993). These requirements are the same in the Second, Third, Fourth, and Ninth Circuits. See, e.g., Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990); Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 293 (4th Cir. 1986); Putnam v. Rymes Heating Oils, Inc. (In re Putnam), 167 B.R. 737, 740 (Bankr. D.N.H. 1994) (citing Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 618 (9th Cir. 1993)). Section 362(k) does not require any showing of specific intent to violate the stay. 93Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 907 (Bankr. N.D. Ind. 2008) (citing Price v. United States (In re Price), 42 F.3d 1068, 1071 (7th Cir. 1994)); Surette, supra note 40, § 2[a] (“The willfulness element [of the automatic stay] goes to the deliberateness of the act that violated the stay, and not to a specific intent to violate the automatic stay.”). In contrast, to recover under § 105(a), a party must prove that the creditor who violated the automatic stay had a “malicious intent or lack of good faith,” a much tougher standard than under § 362(k). 94Shadduck v. Rodolakis, 221 B.R. 573, 580 (D. Mass. 1998).

II. Interpretation of § 362(k)

For a trustee or any other entity to recover damages under § 362(k), the party must fall within § 362(k)’s meaning of “individual injured.” 95See 11 U.S.C. § 362(k) (2006).

That is, any party eligible to recover under the statute must satisfy two criteria: the party must not only be an “individual,” but also be “injured.” The definitional scope for each of these terms is addressed below.

A. “Individual” as Used in § 362(k) Includes Only Natural Persons

The first determination is what Congress’ intended definition of “individual” is. The Supreme Court has not specifically interpreted “individual” in the context of § 362(k), but its approach to statutory interpretation suggests that the term includes only natural persons. A trustee, in his capacity as the representative of the estate, is not a natural person. Thus, a trustee is not an individual for the purposes of the statute.

Although some courts addressing this issue have only focused on the term “individual,” 96See Surette, supra note 40, § 2[a]. the term “injured” is equally important. Even if a trustee is an individual, he cannot recover damages under § 362(k) if he is not also injured.

Few courts have dealt directly with the issue of whether a trustee is an individual under § 362(k). 97See Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir. 1995) (“There is no controlling authority from this or any other circuit that answer the question [of whether a trustee is an individual under § 362(k)].”). Because the Code does not define “individual,” courts interpreting § 362(k) have had considerable trouble determining whom Congress intended to include within the scope of this provision and are split as to its meaning. 98The Second, Eighth, and Ninth Circuits hold that non-natural persons, specifically trustees or corporations, are not individuals. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003); Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884 (8th Cir. 1997) (corporate debtor); Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir. 1996) (trustee); In re Pace, 67 F.3d at 193 (trustee); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993) (corporate debtor); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990) (corporate debtor). However, the Third Circuit holds that a trustee is an individual. Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990). Currently, the majority interprets “individual” to include a trustee, while a minority holds that a trustee is not an individual because the term only includes natural persons. However, a greater number of courts have addressed the analogous issue of whether a corporation is an individual under § 362(k). 99See generally David Swarthout, Note, When Is an Individual a Corporation?—When the Court Misinterprets a Statute, That’s When!, 8 Am. Bankr. Inst. L. Rev. 151 (2000).

Although the Supreme Court has not directly ruled on the meaning of “individual” as used in the Code, the Court has tangentially addressed the term while interpreting other parts of the Code 100The Supreme Court tangentially addressed the meaning of “individual” in Toibb v. Radloff when it interpreted the term “person.” Toibb v. Radloff, 501 U.S. 157, 160–61 (1991). The Court concluded that the petitioner could be a chapter 11 debtor under 11 U.S.C. § 109(d) because the Code defines “person” as used in title 11 to include an “individual” and § 109(d) does not expressly preclude an “individual” from filing under chapter 11. Id. and has determined the meaning of “individual” in contexts outside of bankruptcy law. 101Mohamad v. Rajoub, 634 F.3d 604, 607 (D.C. Cir. 2011) (interpreting the meaning of “individual” in the Torture Victim Protection Act), aff’d sub nom. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012); see also In re North, 12 F.3d 252, 254–55 (D.C. Cir. 1994) (per curiam) (interpreting the meaning of “individual” in the Ethics in Government Act using the ordinary approach and finding that “individual” describes a “natural person”).

1. Statutory Interpretation Using Supreme Court Precedent

Determining whether a trustee is an “individual” within the meaning of § 362(k) is a question of statutory interpretation to be answered in accordance with principles that the Supreme Court has applied when interpreting the Code. The Court’s textual approach to statutory interpretation requires an examination of the plain meaning of “individual.”

Beginning with its decision in United States v. Ron Pair Enterprises, Inc., the Supreme Court has applied a “plain meaning” approach to answer questions of statutory interpretation arising under the Code. 102See generally Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 724 (2011); Hamilton v. Lanning, 130 S. Ct. 2464, 2471 (2010); Patterson v. Shumate, 504 U.S. 753, 757–59 (1992); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989). In Ron Pair, the Court held that any analysis of the Code must start “where all such inquiries must begin: with the language of the statute itself.” 103Ron Pair, 489 U.S. at 241.

Although the limits of what resources should be considered when determining the plain meaning of a term are unresolved, 104See Gebbia-Pinetti, supra note 41, at 189. See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621 (1990); William D. Popkin, An “Internal” Critique of Justice Scalia’s Theory of Statutory Interpretation, 76 Minn. L. Rev. 1133 (1992); Robert K. Rasmussen, A Study of the Costs and Benefits of Textualism: The Supreme Court’s Bankruptcy Cases, 71 Wash. U. L.Q. 535 (1993); Nicholas S. Zeppos, Justice Scalia’s Textualism: The “New” New Legal Process, 12 Cardozo L. Rev. 1597 (1991). a purely textual analysis of a term’s plain meaning likely considers only the following: (1) the text of the statute itself; (2) statutory definitions of the term; (3) definitions from relevant dictionaries; and (4) how other sections of the same statute use the term. 105Gebbia-Pinetti, supra note 41, at 189. If the plain meaning of the statute is unambiguous after such an inquiry, then “the inquiry should end” at that point because “the sole function of the courts is to enforce [the statute] according to its terms.” 106Ron Pair, 489 U.S. at 241 (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

In determining an undefined term’s plain meaning, the Court has established that a court must first examine the text of the statute itself, paying close attention to the statute’s word choice 107Ransom, 131 S. Ct. at 724 (“[A court] must give effect to every word of a statute wherever possible.” (quoting Leocal v. Ashcroft, 543 U.S. 1, 12 (2004))). and grammatical structure. 108Ron Pair, 489 U.S. at 241 (examining the placement of commas in the statute). Section 362(k)(1) states, “[A]n individual injured by any willful violation of a stay . . . shall recover actual damages, including costs and attorneys’ fees.” 10911 U.S.C. § 362(k)(1) (2006) (emphasis added). The following two maxims of statutory interpretation should guide the analysis at this stage: (1) the statute “must give effect to every word of a statute wherever possible”; 110See Ransom, 131 S. Ct. at 724 (quoting Leocal, 543 U.S. at 12). and (2) because Congress carefully selects every word in a statute, if Congress intended to convey a particular purpose or result, it would have explicitly done so. 111See id. (citing Leocal, 543 U.S. at 12); Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147–48 (N.D. Ill. 1992).

For example, in Ransom v. FIA Card Services, N.A., the Court applied these two maxims when it interpreted the meaning of “applicable” to determine the debtor’s projected “disposable income” in a chapter 13 case. 112Ransom, 131 S. Ct. at 724–25. First, the Court reasoned, “If Congress had not wanted to separate in this way debtors who qualify for an allowance from those who do not, it could have omitted the term ‘applicable’ altogether.” 113Id. at 724. Second, the deliberate use of the word “applicable” led the Court to conclude that “Congress presumably included [the term] to achieve a different result.” 114Id. The Court’s Ransom opinion demonstrates the type of analysis that should be used to interpret § 362(k).

With respect to the first maxim, one must assume that Congress used the word “individual,” instead of the broader term “entity,” in a deliberate manner. The terms “individual” and “entity” both appear in § 362(k), as amended. However, it is important to note that § 101, the definitional section of the Code, specifically defines “entity” but does not define “individual.” Had Congress intended to permit parties other than a natural person to recover under § 362(k), it presumably would have used the term “entity,” which includes trustees under § 101, 11511 U.S.C. § 101(15) (2006) (“The term ‘entity’ includes person, estate, trust, governmental unit, and United States trustee.” (emphasis added)). instead of “individual,” which is not defined. 116See In re Sayeh, 445 B.R. 19, 27 (Bankr. D. Mass. 2011). Presumably, Congress recognized the distinction between the two terms when it used both “entity” and “individual” 117Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 763–64 (Bankr. N.D. Ill. 2007) (“The addition of ‘entity’ in such close proximity to ‘individual’ is strong evidence that Congress was aware of the distinction between the terms and deliberately chose to retain the more narrow term in the new section 362(k)(1).”). in the amended version of § 362(k). 118Congress used the term “entity” in § 362(k)(2), which BAPCPA added to § 362(k) in 2005, but Congress did not amend the term “individual” as used in § 362(k)(1). See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 441(1), 119 Stat. 23, 114 (codified as amended at 11 U.S.C. § 362(k)(1)–(2)). With respect to the second maxim, if Congress had intended § 362(k) to allow trustees, in addition to individual debtors, to recover damages under § 362(k), it would have used the broader term “entity,” which explicitly permits such recovery. 119See Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147–48 (N.D. Ill. 1992) (“If Congress had intended to make Section 362(h) [include corporations or trustees], it would have done so more clearly.”).

After examining the overall text of the statute itself, a court should next look to the statutory definitions of the term. 120See Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 724 (2011); In re A & C Electric Co., 188 B.R. 975, 980 (Bankr. N.D. Ill. 1995), aff’d sub nom. Divane v. A & C Electric Co., 193 B.R. 856 (N.D. Ill. 1996). Any interpretation of the term “individual” must begin with § 101 of the Code, which defines numerous terms that the Code uses. 121See generally 11 U.S.C. § 101. Unfortunately, § 101 does not explicitly define “individual.” Thus, in this situation, a court would proceed to consult relevant external dictionaries for definitions of the terms at issue. 122See In re A & C Electric Co., 188 B.R. at 980 (“Since Congress did not define ‘individual’ in the Bankruptcy Code, its use of that word can be read according to its common dictionary meaning . . . .”).

Although the Supreme Court often consults various dictionaries for the purposes of statutory interpretation, it has not held one to be more reliable than the others. The Court has previously consulted the Standard Dictionary, Webster’s Third International Dictionary, the New Oxford American Dictionary, the Oxford English Dictionary, and Black’s Law Dictionary to determine the common dictionary definition of the disputed term. 123Ransom, 131 S. Ct. at 724.

According to Webster’s Third International Dictionary, “individual” means “a single human being as contrasted with a social group or institution.” 124Webster’s Third New International Dictionary 1152 (2002). Similarly, the New Oxford American Dictionary defines an “individual” to be “a single human being as distinct from a group, class, or family.” 125New Oxford American Dictionary 865 (Elizabeth J. Jewell & Frank Abate eds., 2001). Black’s Law Dictionary only defines the adjective form of “individual,” not the noun form. Black’s Law Dictionary 843 (9th ed. 2009). An aspect common to both dictionaries’ definitions is that an individual is a “human being.” This analysis of the dictionaries’ definitions leads to the conclusion that the term “individual” only includes natural persons and does not include non-natural persons and other entities like trustees.

If the plain meaning of the term is still unclear after following these steps, a court may next consider how the disputed term is used in other sections of the same statute. 126See Kenneth N. Klee, Bankruptcy and the Supreme Court 21 (2008); see also Cohen v. De La Cruz, 523 U.S. 213, 220 (1998) (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”); Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (“[A] word is presumed to have the same meaning in all subsections of the same statute.” (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983))). The term’s usage in other portions of the same statute is significant because “a word is presumed to have the same meaning in all subsections of the same statute.” 127Patterson, 504 U.S. at 758 n.2 (quoting Morrison-Knudsen, 461 U.S. at 633); see also Cohen, 523 U.S. at 220 (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”). But see Dewsnup v. Timm, 502 U.S. 410, 417 n.3 (1992) (“[W]e express no opinion as to whether the words ‘allowed secured claim’ have different meaning in other provisions of the Bankruptcy Code.”). Thus, in this case, a complete analysis requires an examination of how “individual” is used in the parts of § 362 and the Code that were already enacted when Congress introduced § 362(k).

The use of “individual” in other sections of the Code suggests that the term does not include a trustee and only includes natural persons. Even though the Code does not explicitly define “individual,” the term “individual” is used in other definitions in § 101. 128See, e.g., 11 U.S.C. § 101(41) (2006). For example, § 101(15) defines the term “entity” to include a “person, estate, trust, governmental unit, and United States trustee,” 129Id. § 101(15). and § 101(41) defines the term “person” as including an “individual, partnership, and corporation.” 130Id. § 101(41). Replacing § 101(41)’s definition of “person” for the word “person” in § 101(15)’s definition of “entity” creates a clearer and more comprehensive definition of “entity.” After making this substitution, the definition of “entity” includes an individual, partnership, corporation, estate, trust, governmental unit, and U.S. trustee. 131See id. § 101(15), (41).

Because statutes should be interpreted in such a way as to avoid superfluity, 132See Hamilton v. Lanning, 130 S. Ct. 2464, 2474 (2010) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law” (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998)) (internal quotation marks omitted)). But see Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” (citations omitted)). an analysis of the definition of “entity” sheds additional light on the meaning of “individual” under § 362(k). Since the definition of “entity” lists the terms “individual,” “trustee,” and “estate” separately, these three terms should be read as being mutually exclusive to avoid superfluity. As such, an “individual” cannot encompass a “trustee” or an “estate.”

In addition to the uses of “individual” within § 101, the term “individual” is used repeatedly throughout the Code, 13311 U.S.C. § 101(8) (defining “consumer debt” as “debt incurred by an individual primarily for a personal, family, or household purpose”); id. § 101(44) (defining “railroad” as a mode of travel concerned with transportation of “individuals”); id. § 101(45) (defining “relative” as an “individual related by affinity or consanguinity within the third degree”); id. § 109(e) (providing that only an “individual” with regular income and such individual’s spouse may become a chapter 13 debtor); id. § 365(d)(5) (stating that trustee will timely perform all obligations of debtor under unexpired lease of personal property, other than personal property “leased to an individual primarily for personal, family, or household purposes”); id. § 507(a)(4) (discussing unsecured claims for “each individual or corporation” and providing that priority is given where “wages, salaries, or commissions, including vacation, severance, and sick leave pay[, are] earned by an individual”). the Bankruptcy Rules, 134See, e.g., Fed. R. Bankr. P. 1016 (discussing “individuals” under rule entitled “Death or Incompetency of Debtor”); id. 5002(a) (stating that an “individual [who] is a relative of the bankruptcy judge” cannot be appointed as trustee); id. 7004(b)(1) (providing service on “an individual other than an infant or incompetent”). and the Official Bankruptcy Forms 135 See, e.g., Voluntary Petition, Official Form 1 (04/10), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_Official_2010/B_001_0410.pdf (distinguishing between individual and corporate debtors); Involuntary Petition, Official Form 5 (12/07), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_1207/B_005_1207f.pdf (distinguishing between individual and corporate debtors); Statement of Financial Affairs, Official Form 7 (04/10), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_Official_2010/B_007_0410.pdf (distinguishing between individual and corporate debtors). in such a way as to indicate that the intended meaning of “individual” is a natural person. For example, § 101(18) defines a “family farmer” as an “individual or individual and spouse engaged in a farming operation.” 13611 U.S.C. § 101(18). Of course, only a natural person, not a corporation or a bankruptcy estate, can have a spouse. Because the term “individual” is used to apply only to natural persons in this instance, it should be construed in the same manner throughout the Code. 137See Cohen v. De La Cruz, 523 U.S. 213, 220 (1998) (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”); Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (“[A] word is presumed to have the same meaning in all subsections of the same statute.” (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983))). But see Dewsnup v. Timm, 502 U.S. 410, 417 n.3 (1992) (“[W]e express no opinion as to whether the words ‘allowed secured claim’ have different meaning in other provisions of the Bankruptcy Code.”).

After completing this textual analysis, it follows that the plain meaning of “individual,” as used in § 362(k), includes only natural persons.

2. Is Departing from the Plain Meaning Appropriate?

In Ron Pair, the Supreme Court held that, “as long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.” 138United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240–41 (1989). The Court explained that the plain meaning of the statute should be conclusive, except in those “rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” 139Id. at 242 (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)). “In such cases, the intention of the drafters, rather than the strict language, controls.” 140Id.

The Court has ruled in such a way in other cases to show that “even the most ardent textualist might compromise his principles of statutory interpretation” if the policy at stake is overwhelmingly important 141Klee, supra note 126, at 31; see BFP v. Resolution Trust Corp., 511 U.S. 531, 542–43 (1994). In interpreting § 548’s use of the phrase “reasonably equivalent value,” Justice Scalia wrote that, “absent clearer textual guidance than the phrase ‘reasonably equivalent value’—a phrase entirely compatible with pre-existing practice,” the Court would not depart from real estate mortgage foreclosure practices that had existed for over 400 years. Id. or if using the strict plain meaning would produce an absurd result. 142See, e.g., Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (finding that it is well established that “when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms” (quoting Ron Pair, 489 U.S. at 241) (internal quotation marks omitted)); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring) (non-bankruptcy case). On the other hand, if the plain meaning is not clear, a court should look to the general purpose of the provision, the policy behind its enactment, subsequent and prior law, and its legislative history to determine the meaning of the disputed term. 143See Klee, supra note 126, at 17. Regardless of whether the plain meaning is clear, recent Supreme Court decisions have applied a more liberal plain meaning approach than the one endorsed in Ron Pair and have looked to whether the statute’s purpose and legislative history lend to their interpretation of a term’s original meaning. See generally Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716 (2011); Hamilton v. Lanning, 130 S. Ct. 2464 (2010). In Ransom, the Court considered whether “BAPCPA’s purpose strengthen[ed its] reading of the term ‘applicable.’” Ransom, 131 S. Ct. at 725.

A textualist would likely conclude that the plain meaning of “individual” in § 362(k) is unambiguous and includes only natural persons. Furthermore, this interpretation does not produce an absurd result and is consistent with both the rest of the automatic stay provision and the rest of the Code. 144See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 184 (2d Cir. 1990). As discussed later, this interpretation of § 362(k) reflects Congress’s intent for the term “individual” in § 362(k) to be limited to natural persons.

The plain meaning analysis ends here. A court will continue its analysis only if the plain meaning is unclear. 145Ron Pair, 489 U.S. at 241. Some lower courts have reasoned that the plain meaning is unclear because the term “individual” is not expressly defined in the Code. 146 See, e.g., Bohm v. Howard (In re Howard), 428 B.R. 335, 337 (Bankr. W.D. Pa. 2010), aff’d sub nom. United Bank, Inc. v. Howard (In re Howard), No. 2:10CV962, 2011 WL 578777 (W.D. Pa. Feb. 9, 2011). Thus, such plain meaning should not be exclusively relied on to resolve the precise issue under consideration.

Even if the plain meaning of “individual” is supposedly clear, the interpretational analysis should not necessarily end here because the plain meaning approach is not always reliable. 147While the Supreme Court currently endorses the plain meaning approach, the results under this analysis are inconsistent. Logically, any case of statutory interpretation that goes to the Supreme Court due to a split in meaning among the circuits suggests that the meaning is unclear. For example, in Hamilton v. Lanning, the Court used the plain meaning approach to interpret the term “projected” in BAPCPA’s projected disposable income test. Hamilton, 130 S. Ct. at 2471–72. They concluded that “projected” implied that a bankruptcy court has discretion to make appropriate adjustments to income where significant changes in a debtor’s financial circumstances are virtually certain. Id. at 2472. However, the fact that lower circuit courts reached the opposite conclusion after applying the plain meaning approach when interpreting this term suggests the test is unreliable. Id. at 2473. Critics of the plain meaning approach have long complained that the Supreme Court has interpreted the Code in an inconsistent manner. 148See, e.g., Thomas G. Kelch, An Apology for Plain-Meaning Interpretation of the Bankruptcy Code, 10 Bankr. Dev. J. 289, 301–09 (1994); Kenneth N. Klee & Frank A. Merola, Ignoring Congressional Intent: Eight Years of Judicial Legislation, 62 Am. Bankr. L.J. 1, 1–2 (1988); Robert M. Lawless, Legisprudence Through a Bankruptcy Lens: A Study in the Supreme Court’s Bankruptcy Cases, 47 Syracuse L. Rev. 1, 6, 109–10 (1996); Bruce A. Markell, Conspiracy, Literalism, and Ennui at the Supreme Court: An Examination of Bankruptcy Cases Decided from 1990 to 1993, 41 Fed. B. News & J. 174, 181–82 (1994); Charles Jordan Tabb & Robert M. Lawless, Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rehnquist Court, 42 Syracuse L. Rev. 823, 879–85 (1991); Charles Jordan Tabb, The Bankruptcy Reform Act in the Supreme Court, 49 U. Pitt. L. Rev. 477, 570–75 (1988). Indeed, some critics have skeptically pointed out that the Court’s bankruptcy jurisprudence “[a]dopt[s] a ‘plain meaning’ posture where the language of the statute meets with judicial approval, and use[s] legislative intent to contradict the language of the statute where a literal reading is not kind to the desired result.” 149See Klee & Merola, supra note 148, at 2.

If the meaning of “individual” under § 362(k) were so “plain” that it “cannot be read in any other way,” 150Ron Pair, 489 U.S. at 242. In Ron Pair, the court determined that the plain meaning of § 506(b) was clear based on the placement of the commas in the statute. Id. at 241–42. “[T]hat the Congress should or could contemplate . . . a decisive change in law [regarding this statute according to punctuation is] an entirely unrealistic view of the precision of . . . congressional drafting . . . .” Daniel J. Bussel, Textualism’s Failures: A Study of Overruled Bankruptcy Decisions, 53 Vand. L. Rev. 887, 897 (2000). then this issue would not have split the circuits. Any split should, at a minimum, cause a reasonable court to reflect on how the divergent interpretations arose and to examine the validity and relevance of the reasons supporting the divergent interpretations. 151See Bussel, supra note 150, at 896–97. Consistency is especially important in bankruptcy law because the Code has a pervasive effect on society. Thus, it may be appropriate to buttress the statutory interpretation of “individual” by looking to resources beyond the plain meaning of the text.

3. Expanding Statutory Interpretation Beyond the Plain Meaning

While the Supreme Court in Ron Pair based its ruling on its determination of the statute’s plain meaning, 152Ron Pair, 489 U.S. at 242–43. the Court has, in other cases, examined additional evidence to confirm its interpretation. Here, this Comment summarizes what other evidence the Court has used at this stage. This Comment then applies this expanded analysis to argue that “individual” as used in § 362(k) should be interpreted so as to not include trustees and to only include natural persons.

The Court notes that, “[i]n expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” 153Kelly v. Robinson, 479 U.S. 36, 43 (1986) (quoting Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986)); see also Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991) (“[C]ommon sense suggests that inquiry benefits from reviewing additional information rather than ignoring it.”); Bank of Marin v. England, 385 U.S. 99, 103 (1966) (“[W]e do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.”); United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’” (footnotes omitted)). First, to aid its interpretation of a disputed term’s plain meaning, the Court has often considered how the term is used in areas outside of the statute. 154See Hamilton v. Lanning, 130 S. Ct. 2464, 2471–72 (2010). For example, in Hamilton v. Lanning, the Court looked at how the disputed term was used in other legal contexts, such as other federal statutes. 155Id. at 2472. Furthermore, in interpreting the meaning of the word “projected,” the Court in Hamilton considered what projections were used in business law, politics, and even sports. Id. at 2471–72. Second, the Court has referred to prior law, the development of the law, and the law’s legislative history in an attempt to glean Congress’s intent in drafting the statute. 156Klee, supra note 126, at 17 (“Even when the language of the statute is clear, courts must consider the legislative history and issues of policy and previous practice to determine congressional intent.”). Generally, when the Code does not supply a definition for a particular statutory term, the court “turn[s] to the legislative history in an attempt to glean congressional intent.” La. Dep’t of Revenue & Taxation v. Lewis (In re Lewis), 199 F.3d 249, 251–52 (5th Cir. 2000). Lastly, the Court has also looked to the overall purpose and policy behind the statute to lend additional insight to its reading of the disputed term. 157See Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 725 (2011) (considering “BAPCPA’s purpose to strengthen [its] reading of the term ‘applicable’”). An analysis of these types of evidence demonstrates that the term “individual” under § 362(k) only includes a natural person.

First, an examination of the use of “individual” in other federal statutes suggests that “individual” means only a natural person. For example, the Court of Appeals for the District of Columbia Circuit interpreted the word “individual” in the Torture Victim Protection Act to encompass only natural persons. 158Mohamad v. Rajoub, 634 F.3d 604, 607 (D.C. Cir. 2011), aff’d sub nom. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012); cf. In re North, 12 F.3d 252, 254–55 (D.C. Cir. 1994) (per curiam) (finding that “individual” as used in the Ethics in Government Act means a natural person based on the term’s ordinary meaning). Another federal statute, the Dictionary Act, which provides guidance in “determining the meaning of any Act of Congress,” 1591 U.S.C. § 1 (2006). has directed courts to presume that the use of “individual” in a statute refers to natural persons and not corporations or trustees. 160Bowoto v. Chevron Corp., 621 F.3d 1116, 1126–27 (9th Cir. 2010); see also Mohamad, 634 F.3d at 607. The Dictionary Act defines “person” to include “corporations, companies, associations, firms, partnerships, societies, . . . as well as individuals.” 1 U.S.C. § 1 (emphasis added).

Second, the evolution of the Code and the Code’s legislative history suggest that the term “individual” means only a natural person. In deciphering the congressional intent behind the Code, the Court has held that, as a matter of statutory construction, courts should examine prior law and the development of the statute because the Code shall not be read so as “to erode past bankruptcy practice absent a clear indication that Congress intended such a departure.” 161Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 563 (1990) (citing Kelly v. Robinson, 479 U.S. 36, 47 (1986)), superseded by statute, Criminal Victims Protection Act of 1990, Pub. L. No. 101-581, 104 Stat. 2865, as recognized in Johnson v. Home State Bank, 501 U.S. 78 (1991); accord, e.g., Cohen v. De La Cruz, 523 U.S. 213, 221 (1998); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 221 (1996); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 244–45 (1989); United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 380 (1988). For example, in Hamilton, the Court examined bankruptcy practice existing prior to the enactment of BAPCPA to determine the meaning of a provision that BAPCPA added. 162See Hamilton v. Lanning, 130 S. Ct. 2464, 2472–74 (2010). Because Congress did not amend the meaning of the term at issue via BAPCPA, the Court defined the term in accordance with the interpretation espoused by pre-BAPCPA bankruptcy practice. 163Id. at 2474. The Court concluded that, if Congress intended for the term to have another meaning, “Congress would have said so expressly” in BAPCPA. 164Id.

The evolution of § 362(k) suggests that “individual” does not include trustees. The split among the circuits on whether “individual” should be construed to include trustees emerged prior to the enactment of BAPCPA. Despite this existing uncertainty, BAPCPA’s amendment of the former § 362(h) did not change “individual” to a more inclusive and definite term such as “person” or “entity.” 165See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §§ 305(1)(B), 441(1)(A), 119 Stat. 23, 79, 114 (codified as amended at 11 U.S.C. § 362(k)(1)). Congress failed again to broaden the term when it subsequently passed the Bankruptcy Technical Corrections Act of 2010, which corrected drafting errors and other problems with BAPCPA and amended § 362. 166See generally Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, 124 Stat. 3557. Thus, following the Court’s reasoning in Hamilton, 167See supra text accompanying notes 162–64. if Congress had wanted to broaden the scope and availability of § 362(k) remedies to more than just natural persons, it would have explicitly done so by correcting the statute to include a broader term such as entity.

The legislative history of the overall Code is another valuable indicator of the meaning of “individual.” Even though § 362(k) was not enacted as a part of the Bankruptcy Reform Act of 1978, the legislative history leading to the Code’s original enactment is relevant. The Senate Report to the Bankruptcy Reform Act of 1978 provides that chapter 11 “is primarily designed for businesses, although individuals are eligible for relief under the chapter.” 168S. Rep. No. 95-989, at 3 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5789. The Senate Report shows that, even at the Code’s inception, Congress intended for “corporations” and “individuals” to be mutually exclusive terms. 169See Toibb v. Radloff, 501 U.S. 157, 162 (1991) (citing S. Rep. No. 95-989, at 3, reprinted in 1978 U.S.C.C.A.N. at 5789).

Lastly, a complete statutory interpretation of the term “individual” would include an analysis of the purpose of § 362(k), which requires consideration of not only the purpose and policy of the overarching section, but also the purpose of the specific subsection at issue.

In Budget Service Company v. Better Homes of Virginia, Inc., the Fourth Circuit considered only the overall purpose of the automatic stay, rather than the specific purpose of § 362(k), when it assessed whether a non-natural person is an individual under § 362(k). 170Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir.1986) (corporate debtor). After noting that the purpose of the automatic stay was to provide all debtors relief from harassment from creditors, the Fourth Circuit held that it was unlikely that Congress intended the provision to apply to only individual debtors when the policy behind the stay was so broad. 171Id. (“[I]t seems unlikely that Congress meant to give a remedy only to individual debtors against those who willfully violate the automatic stay provisions of the Code as opposed to debtors which are corporations or other like entities. Such a narrow construction of the term would defeat much of the purpose of the section . . . .”). However, the Fourth Circuit’s approach did not take into account the possibility that the purpose of § 362(k) may have been narrower than the overall purpose of the automatic stay provision.

Although the overall purpose of § 362 is broad enough to warrant application to both natural and non-natural persons, the purpose of § 362(k) is likely much narrower. 172See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 (2d Cir. 1990). As mentioned earlier in this Comment, § 362(k) was not originally enacted in 1978 as a part of § 362 and was introduced into § 362 as a part of the Consumer Credit Amendments, a specifically tailored group of amendments found in the Bankruptcy Amendments and Federal Judgeship Act of 1984. 173Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352. The Consumer Credit Amendments applied only to natural persons, 174“The term ‘consumer debt’ means debt incurred by an individual primarily for a personal, family, or household purpose.” 11 U.S.C. § 101(8) (2006). Non-natural persons would have no debt for a “personal, family, or household purpose.” See id. thus suggesting that “the use of the word ‘individual’ was intentional, and that Congress was enacting a series of measures meant to benefit only natural persons.” 175In re Chateaugay Corp., 920 F.2d at 186. Indeed, several courts ruling that trustees cannot invoke § 362(k) have used this reasoning to support their conclusions. 176See, e.g., id.

While the policy behind § 362 calls for a broad application of the provision, the legislative history and construction of § 362 do not necessarily apply to subsection (k). 177See id. Rather, “Congress may have viewed natural persons as particularly vulnerable to violations of the automatic stay” and drafted § 362(k) to provide a “precise, easily applied, private cause of action to vindicate [their] rights, consistent with the consumer protection goals of the statute.” 178In re Abacus Broad. Corp., 150 B.R. 925, 928 (Bankr. W.D. Tex. 1993). The Court has recognized that the rehabilitation of debtors is an overarching policy that animates the Code. See, e.g., Cohen v. De La Cruz, 523 U.S. 213, 217 (1998); Grogan v. Garner, 498 U.S. 279, 286–87 (1991); Union Bank v. Wolas, 502 U.S. 151, 160–62 (1991); Local Loan Co. v. Hunt, 292 U.S. 234, 244–45 (1934). On the other hand, Congress may have viewed trustees and other entities, such as corporations, as “more likely to already know their rights under the bankruptcy law” because they are repeat players in the system. 179In re Abacus Broad. Corp., 150 B.R. at 928 (citing In re Chateaugay Corp., 920 F.2d at 186); see also id. (“Similar protections were evidently not deemed necessary for presumably more sophisticated corporations capable of fending for themselves.”).

B. Trustee Is Not a Natural Person

Pursuant to the above analysis, the term “individual” as used in § 362(k) should be interpreted to include only natural persons. A trustee is not a natural person because the trustee is acting not in his personal capacity, but in his professional capacity as a representative of a bankruptcy estate, which is not a natural person. Thus, the trustee should not be considered an “individual” eligible to recover damages under § 362(k).

Under § 541(a), the commencement of a bankruptcy case “creates an estate.” 18011 U.S.C. § 541(a) (2006). A trustee is appointed to act as that estate’s representative. 181Id. § 323(a). Section 321(a), which outlines the eligibility requirements to serve as a trustee, provides that “[a] person may serve as a trustee in a case under this title only if such person is—(1) an individual that is competent to perform the duties of trustee . . . ; or (2) a corporation authorized by such corporation’s charter or bylaws to act as trustee.” 182Id. § 321(a). At first glance, § 321 could indicate the either/or scenario that, if a trustee is not a corporation, the trustee must be considered an individual who would be entitled to recover under § 362(k). See Eric Howe, Note, Benefiting the Bankruptcy System Through Deterrence: Allowing a Chapter 7 Trustee to Recover Punitive Damages for a Violation of the Automatic Stay Under § 362(h), 90 Iowa L. Rev. 1939, 1961–62 (2005). However, upon closer inspection, this provision merely comments on the status of that person (corporation or individual) prior to becoming a trustee and does not preclude the trustee from being an entity completely distinct from an individual or a corporation.

If an individual assumes the role of a trustee as § 321(a) permits, that individual is inarguably a natural person in his personal capacity. But, the personal status of the individual serving as the trustee should have no bearing on the status of his position as a trustee (i.e., a representative of an estate). 183See 11 U.S.C. § 323(a). Serving as the newly created trustee is a professional role filled by the individual, distinct from that individual’s personal status. 184Havelock v. Taxel (In re Pace), 159 B.R. 890, 905 (B.A.P. 9th Cir. 1993) (Jellen, J., concurring), aff’d in part, vacated in part, 67 F.3d 187 (9th Cir. 1995). Whether a trustee is a natural person should not be determined based on his personal status as an individual, but on his professional status as a representative of a bankruptcy estate. 185See Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 175 B.R. 288, 291–92 (Bankr. E.D. Mo. 1994) (holding that the trustee was not entitled to recover damages under § 362(h) because he was acting as the representative of a corporate entity’s bankruptcy estate), rev’d, 108 F.3d 881 (8th Cir. 1997).

Section 321 bolsters the idea that the trustee, as the estate’s representative, should be classified separately from the person (either an individual or a corporation) who fills the role of the trustee. 186See In re Pace, 159 B.R. at 905–06 (Jellen, J., concurring) (discussing the distinction between the debtor and the representative of the estate). The concurring opinion in In re Pace pointed out that, if the trustee’s classification as an individual or non-individual was based on his personal status, then a court could award damages to a bankruptcy estate represented by a trustee who is an individual, but not to an identical bankruptcy estate represented by a corporation. 187Id. at 906. This point assumes that corporate debtors are not individuals under § 362(k). This Comment will not address this tangential issue. For a more detailed discussion on this issue, see generally Swarthout, supra note 99. Because the Code sets forth identical rights and duties for both corporate and individual trustees and the estates that they represent, the concurrence noted that “no logical reason presents itself why Congress would require [this result].” 188In re Pace, 159 B.R. at 906 (Jellen, J., concurring).

The distinction between the trustee as the estate’s representative and the natural person who fills the role of trustee is further emphasized by the fact that a violation of an automatic stay damages the estate’s property, not the trustee’s personal property. 189Id. at 905. If the trustee were acting in his personal capacity, he would have no cause to assert a violation of the automatic stay because it is the debtor, not the trustee, who has filed for bankruptcy. The bankruptcy courts do not award damages resulting from automatic stay violations to the trustee himself, but to the estate. 190See id.

Based on his professional capacity as a representative of a bankruptcy estate, a trustee should not be classified as a natural person because an estate is not a natural person. 191 Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (finding that any damage is incurred by a “thing”—the bankruptcy estate—and not by a natural person). Conversely, a bankruptcy estate should not be considered a natural person even though its representative, the trustee, may be a natural person in his personal capacity. 192In re Pace, 159 B.R. at 906 (Jellen, J., concurring) (“[I]t [is] apparent that the term ‘individual’ was intended to refer to a natural person injured by a stay relief violation and not to the representative of that person.”).

Throughout the Code, Congress uses the term “individual” to refer to the party-in-interest rather than the representative of the party-in-interest. 193Id. Thus, according to the rule of statutory construction “that a word is presumed to have the same meaning in all subsections of the same statute,” 194Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983)). the term “individual” in § 362(k) refers to the party seeking relief in an automatic stay case.

If the availability of relief under the Code depended on the status of the representative and not the party itself, a party would be eligible for relief under § 362(k) as long as the representative of such party was an individual. 195See In re Pace, 159 B.R. at 906 (Jellen, J., concurring). This result would completely undermine the Code.

For example, estates and trusts 196These are trusts other than business trusts that qualify as corporations under § 101(9). are ineligible for relief under any chapter of the Code. 197See, e.g., Goerg v. Parungao (In re Goerg), 844 F.2d 1562, 1566 (11th Cir. 1988) (decedents’ estates ineligible for relief under the Code); In re BKC Realty Trust, 125 B.R. 65, 68 (Bankr. D.N.H. 1991) (family trust ineligible for relief). Section 109(a) provides that “only a person . . . , or a municipality, may be a debtor under this title,” 19811 U.S.C. § 109(a) (2006) (emphasis added). and § 101(41) provides that “[t]he term ‘person’ includes individual, partnership, and corporation,” 199Id. § 101(41). thereby excluding estates and non-business trusts. The legislative history shows that Congress explicitly excluded estates and trusts from the definition of “person.” 200H.R. Rep. No. 95-595, at 313 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6270 (“The definition [of ‘person’] does not include an estate or a trust, which are included only in the definition of ‘entity’ in proposed 11 U.S.C. [sic] 101(14) [now, § 101(15)].”). Under the flawed rationale that the status of the estate’s representative determines eligibility, however, a decedent’s estate would be eligible to file for bankruptcy if the executor representing the estate happens to be an individual. Similarly, “[c]orporations and partnerships would also enjoy an expanded array of rights (e.g., eligibility to file Chapter 13 and claim exemptions) in cases where they are represented by a fiduciary who is an individual.” 201See Havelock v. Taxel (In re Pace), 159 B.R. 890, 906 (B.A.P. 9th Cir. 1993) (Jellen, J., concurring), aff’d in part, vacated in part, 67 F.3d 187 (9th Cir. 1995). This case also discusses that, “[b]y the same construction, trusts and decedents’ estates represented by an individual fiduciary would not only be eligible for relief under the Bankruptcy Code, they would also qualify to claim exemptions pursuant to section 522(b)(1), file Chapter 13 cases pursuant to section 109(e), and obtain Chapter 7 discharges pursuant to section 727(a), rights that are available only to ‘individuals.’” Id.

Thus, the status of the trustee as a natural person in his personal capacity should be of no consequence to determining whether he can recover damages under § 362(k). Rather, this question turns on whether the bankruptcy estate, which the trustee represents, should be considered an individual. Because the bankruptcy estate is not a natural person under § 362(k), the trustee in his representative capacity is not an individual.

C. Trustee Is Not “Injured” for Purposes of § 362(k)

Regardless of whether a trustee is considered an “individual” under the statutory analysis set forth in the previous two subparts, a trustee should not be able to recover damages under § 362(k) because the trustee has not been “injured” by the violation of the automatic stay as the statute requires. 202See Martino v. First Nat’l Bank in Harvey (In re Garofalo’s Finer Foods, Inc.), 164 B.R. 955, 972 (Bankr. N.D. Ill. 1994), aff’d in part, rev’d in part, 186 B.R. 414 (N.D. Ill. 1995).

Section 362(k) requires that one must be an “individual injured” to recover damages as set forth under the provision. 20311 U.S.C. § 362(k). Thus, an individual cannot recover damages under § 362(k) for a violation of the automatic stay unless that individual is also injured by the violation. 204See id. Both requirements must be fulfilled simultaneously. As established in the previous subparts, a trustee is an individual in his personal capacity and a non-individual in his professional capacity as a bankruptcy estate’s representative. Thus, in order for a trustee to be considered an injured individual as required under § 362(k), the trustee would need to be injured in his personal capacity.

Even if a trustee is an individual under § 362(k), he is not personally injured by the violation of the automatic stay. 205See In re Garofalo’s Finer Foods, 164 B.R. at 972–73. Rather, the estate that the trustee represents is injured. The Ninth Circuit in In re Pace arrived at this very conclusion. 206Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995). The court first established two facts: (1) any resulting damage was suffered by the bankruptcy estate; and (2) the trustee in his individual capacity was not a party to the case. 207See id. at 192–93. Because the only party injured in this case was the estate, the court reasoned that the only way for the trustee to recover damages under § 362(k) was if the bankruptcy estate was considered an individual merely because its representative, the trustee, was an individual in his personal capacity. 208See id. The Ninth Circuit declined to take such an approach. 209Id. at 193.

Appellate courts have rejected lower courts’ conclusions that a trustee has been injured for the purposes of § 362(k). 210 See, e.g., id. One lower court concluded that the trustee, in following its obligations under § 704(1) to recover property wrongfully seized by a creditor after the bankruptcy petition had been filed, likely suffered a loss in not being able to recover attorneys’ fees from the stay violator. 211Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995). In response to this argument, courts have reiterated that the loss of attorneys’ fees and the like are actually incurred by the bankruptcy estate, which is an entity, not an individual. 212In re Pace, 67 F.3d at 193 (asserting that, while In re Garofalo’s Finer Foods allows a trustee to fit the definition of “individual,” loss in form of attorneys’ fees and costs “is actually incurred by a thing, viz., the bankruptcy estate, and not by the trustee as a natural person”). Regardless of whether the harm is incurred by the trustee as a representative of an estate or as an individual, recovering under § 362(k) is not necessary to rectify any loss incurred because attorneys’ fees are an available form of relief under § 105. See 11 U.S.C. § 105(a) (2006). Courts have also held that the time required of the trustee to file a motion in an automatic stay case is not a type of damage intended to be remedied by § 362(k). 213Lovett v. Honeywell, Inc., 930 F.2d 625, 629 (8th Cir. 1991).

The conclusion that the trustee is not injured by a stay violation is consistent with the distinction between an injured party and that party’s representative that courts have made in other areas of law. For example, according to an interpretation of Internal Revenue Code § 104(a)(2), beneficiaries that receive funds on account of another individual’s personal injuries are not eligible to exclude this income because they have not been personally injured. 214Peoples Fin. & Thrift Co. v. Comm’r, 184 F.2d 836, 837 (5th Cir. 1950); see also Estate of Wesson v. United States, 843 F. Supp. 1119, 1123 (S.D. Miss. 1994) (“[T]he beneficiaries cannot seriously contend that they received the punitive-damages award ‘on account of personal injuries’ as required under section 104(a)(2) for purposes of exclusion from taxation.”), aff’d sub nom. Wesson v. United States, 48 F.3d 894 (5th Cir. 1995). Similar to how a beneficiary represents an injured party in receiving the damages, the trustee represents the debtor in an automatic stay case. Thus, the trustee is not an injured party, but a representative of the actual injured party, the estate.

III. Implications of Precluding Trustees from Recovering under § 362(k)—The Availability and Appropriateness of Damages

At first glance, it may seem that trustees should be treated as “individuals” under § 362(k) to avoid a scenario in which creditors can violate the stay with impunity “as long as those injured by the violation happen to be entities other than natural persons.” 215See Howe, supra note 182, at 1955. The argument follows that, if creditors are able to go unpunished in this circumstance, it undercuts the purposes of the automatic stay 216See D. Casey Kobi, Note, Staying True to Purpose: Including Corporate Debtors Under § 362(h) of the Federal Bankruptcy Code, 76 Ind. L.J. 243, 267 (2001) (“The purpose of § 362(h) will be destroyed if creditors can violate the automatic stay without suffering repercussions under the Bankruptcy Code.”). to provide a “breathing spell” for debtors and to ensure that creditors are paid in an equitable manner. 217H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97. Thus, the argument continues, the bankruptcy system requires a more lenient standard for defining “individual” under § 362(k) to impose more damages on violators of the automatic stay 218See Howe, supra note 182, at 1954–55. and avoid an outcome in which creditors go unpunished and undeterred.

Indeed, many of the courts holding that trustees and other entities should be considered individuals have rationalized that preventing them from recovering damages under § 362(k) would be contrary to congressional intent. 219See, e.g., Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986); Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 438–39 (N.D. Ill. 1995). For example, the Fourth Circuit in Better Homes of Virginia held that a corporation can recover damages for an automatic stay violation under § 362(h) (now § 362(k)) because “it seems unlikely that Congress meant to give a remedy only to individual debtors” and “[s]uch a narrow construction of the term would defeat much of the purpose of the section.” 220Better Homes of Va., 804 F.2d at 292. The Fourth Circuit is one of only two circuit courts to hold that a non-natural person is an individual. 221The only other circuit to hold that a non-natural person is an individual is the Third Circuit. See Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990) (corporate debtor). The Second Circuit, Eighth Circuit, and Ninth Circuit have held that non-natural persons, specifically trustees or corporations, are not individuals under § 362(k). See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990) (corporate debtor); Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884 (8th Cir. 1997) (corporate debtor is not an individual); Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir. 1996) (trustee is not an individual); Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (trustee is not an individual); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993) (corporate debtor is not an individual). The First, Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuit Courts have not ruled on this issue yet.

The decision in Better Homes of Virginia and other similar conclusions are based on the false assumption that, if a party is unable to recover under § 362(k), the party will be unable to recover any type of damages based on a violation of the automatic stay. 222See Better Homes of Va., 804 F.2d at 292. On the contrary, if a trustee is unable to recover under § 362(k), that trustee is still entitled to recover damages under § 105’s contempt provision. 223Collier, supra note 3, ¶ 362.12[2]. Section 105 provides trustees with an adequate recovery, enabling them to receive both compensatory damages and attorneys’ fees. 224See 11 U.S.C. § 105(a) (2006). Indeed, punitive damages are the only form of damages available under § 362(k) that are not available under § 105.

The fact that punitive damages are not available as a remedy for contempt under § 105, however, provides no basis for concluding that a trustee should be able to proceed under § 362(k). Awarding punitive damages to a trustee is inappropriate because doing so does not further the main policies behind punitive damages, which are to deter violations of the stay and to punish violators.

A. Recovery Under § 105 Is Available and Adequate

Many courts have held that, because an automatic stay constitutes a court order, a violation of the stay is punishable as contempt of court. 225See, e.g., Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1546 (11th Cir. 1996); In re Xavier’s of Beville, Inc., 172 B.R. 667, 671–72 (Bankr. M.D. Fla. 1994); Fry v. Today’s Homes, Inc. (In re Fry), 122 B.R. 427, 430 (Bankr. N.D. Okla. 1990). Thus, if a trustee is not eligible to recover damages under § 362(k), then the trustee may still recover damages under § 105. 226See In re Pace, 67 F.3d at 193; cf. Spookyworld, Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346 F.3d 1, 8 (1st Cir. 2003); United States v. Arkison (In re Cascade Rds., Inc.), 34 F.3d 756, 767 (9th Cir. 1994); In re Goodman, 991 F.2d at 620 (9th Cir. 1993) (corporation can seek damages under contempt theory); In re Chateaugay Corp., 920 F.2d at 186. But see In re Daniels, 206 B.R. 444, 446–47 (Bankr. E.D. Mich. 1997) (holding that it is improper for an individual to seek relief via a motion for contempt, and that sanctions should be pursued through § 362(k)). Section 105 grants courts the power to award compensatory damages and attorneys’ fees for automatic stay violations to the extent that such awards are “necessary or appropriate” to carry out the provisions of the Code. 227See 11 U.S.C. § 105(a).

The fact that the contempt remedy was used for decades to enforce the automatic stay suggests that it is an adequate remedy for trustees and other non-individuals who are not eligible to recover damages under § 362(k). Before the enactment of the Bankruptcy Amendments and Federal Judgeship Act in 1984, which permitted individuals to recover under § 362(h) (now § 362(k)), 228See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352. recovery under § 105 was the only means for enforcing the automatic stay. 229Collier, supra note 3, ¶ 362.12[2]. Under the Bankruptcy Act of 1898, a creditor would be held in contempt for willfully violating the Bankruptcy Rules if he knew that the debtor had filed for bankruptcy and still brought an action against the debtor without first securing the bankruptcy court’s permission. Fid. Mortg. Investors v. Camelia Builders, Inc. (In re Fid. Mortg. Investors), 550 F.2d 47, 51–52 (2d Cir. 1976).

Considering that damages for a violation of the stay were available under § 105 for some time, Congress likely passed § 362(h) to offer a unique, perhaps narrower, form of recovery. 230See Collier, supra note 3, ¶ 362.12[3]. The legislative history of § 362(h) states that § 362(h) was enacted to offer “an additional right of individual debtors, and [was] not intended to foreclose recovery under already existing remedies.” 231See 130 Cong. Rec. 6,504 (1984) (statement of Rep. Rodino) (emphasis added). Several courts, citing the legislative history, have interpreted Congress’s intent for § 362(h) to supplement, rather than replace, the contempt remedy available under § 105. 232See, e.g., Wagner v. Ivory (In re Wagner), 74 B.R. 898, 903 (Bankr. E.D. Pa. 1987); Aponte v. Aungst (In re Aponte), 82 B.R. 738, 742 (Bankr. E.D. Pa. 1988); Colon v. Hart (In re Colon), 114 B.R. 890, 898 (Bankr. E.D. Pa. 1990) (“Congress intended, prior to the enactment of § 362(h), that enforcement of the automatic stay could be by civil contempt. The passage of section 362(h) was not intended to preclude the use of civil contempt.” (citation omitted)), appeal dismissed sub nom. Szostek v. Hart, 123 B.R. 719 (E.D. Pa. 1991), aff’d in part, appeal dismissed in part sub nom. Colon v. Hart (In re Colon), 941 F.2d 242 (3d Cir. 1991).

Because § 105 does not offer any remedy that is not also available under § 362(k), 233Compare 11 U.S.C. § 362(k)(1) (2006) (offering compensatory damages, attorneys’ fees, and punitive damages), with id. § 105(a) (offering only compensatory damages and, in some cases, attorney’s fees). making § 362(k) available to all types of debtors (including those that are not individuals) would render § 105 superfluous. 234Conversely, some courts have held that a finding of civil contempt is not a prerequisite to the imposition of sanctions under § 362(h). See Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 293 (4th Cir. 1986). The Supreme Court has ruled, however, that statutes should be read so as to avoid superfluity. 235See Hamilton v. Lanning, 130 S. Ct. 2464, 2474 (2010) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998)) (internal quotation marks omitted)). Thus, the only logical conclusion is that Congress intended for § 105 to continue providing relief for those who cannot seek recourse under § 362(k).

While the standards and types of recovery are slightly different for § 362(k) and § 105, 236See supra text accompanying notes 85–94. recovery under § 105 is sufficient for non-individuals. 237Collier, supra note 3, ¶ 362.12[3] & n.39. As a leading bankruptcy treatise concludes, “although the standards and procedures for contempt may be slightly more demanding, courts have had little difficulty dealing with and punishing stay violations even without the availability of section 362(k).” 238Id. ¶ 362.12.

Several courts have allowed trustees to recover under § 362(k) based on the availability of attorneys’ fees under this section. 239Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995). The trustee is obligated to recover property for the benefit of the estate and may incur large attorneys’ fees if litigation is required to address a stay violation that removed property from the estate. 240See 11 U.S.C. § 704(a)(1) (2006). Courts have reasoned that, “[i]f the trustee incurs legal expenses in recovering such property and cannot recover his fees from the party that violated the stay, either the estate will be depleted by the amount of the trustee’s costs of recovery or the trustee will not be reimbursed for those costs.” 241In re Garofalo’s Finer Foods, 186 B.R. at 439.

But a trustee does not have to proceed under § 362(k) to recover attorneys’ fees. Courts have consistently ruled that attorneys’ fees are recoverable as a part of a contempt remedy under § 105. 242See Surette, supra note 40, § 6[a] (listing cases in which attorney’s fees have been awarded). Because § 105 allows for the recovery of attorneys’ fees, the estate will not be depleted if the trustee must pursue a proceeding for a violation of the automatic stay to recover property of the estate. 243Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (“It is clear that, even though a trustee does not qualify as an ‘individual’ for purposes of section 362(h), a trustee can recover damages in the form of costs and attorney’s fees under section 105(a) as a sanction for ordinary civil contempt.” (emphasis added)).

B. Trustee’s Recovery of Punitive Damages Is Inappropriate

Notwithstanding the differences between § 105 and § 362(k) discussed in the previous subpart, the main practical difference between the remedies under these two provisions is that punitive damages are available under § 362(k), whereas they are not available under § 105. 244Compare 11 U.S.C. § 362(k)(1), with Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003). Thus, imperative to any discussion on why a trustee should not be considered an individual under § 362(k) is an analysis of why trustees should not recover punitive damages for a violation of the automatic stay.

Because awarding punitive damages is controversial, 245A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 870 (1998); see Steve P. Calandrillo, Penalizing Punitive Damages: Why the Supreme Court Needs a Lesson in Law and Economics, 78 Geo. Wash. L. Rev. 774, 781–93 (2010) (surveying modern Supreme Court case law to illustrate how punitive damages have evolved and been limited over the years). In fact, some scholars have gone so far as to argue that punitive damages have no deterrent or punitive effect. See generally W. Kip Viscusi, Why There is No Defense of Punitive Damages, 87 Geo. L.J. 381 (1998). courts should administer them thoughtfully, taking special care to examine the policy rationale for punitive damages and how the awarding of punitive damages for automatic stay violations would further these policies. 246See generally Calandrillo, supra note 245.

At least seven purposes for awarding punitive damages have been advanced, which include the following: “(1) punishing the defendant; (2) deterring the defendant from repeating the offense; (3) deterring others from committing an offense; (4) preserving the peace; (5) inducing private law enforcement; (6) compensating victims for otherwise uncompensable losses; and (7) paying the plaintiff’s attorneys’ fees.” 247See Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1, 3 (1982). The Supreme Court, however, has recently stated that awarding punitive damages is “aimed . . . principally at retribution and deterring harmful conduct.” 248Exxon Shipping Co. v. Baker, 554 U.S. 471, 492 (2008). Similarly, bankruptcy courts have repeatedly stated that the purposes of awarding punitive damages for a violation of an automatic stay are to deter future violations and to punish violators. 249See, e.g., Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008); In re M & J Feed Mill, Inc., 112 B.R. 985, 990 (Bankr. W.D. Mo. 1990); Mercer v. D.E.F., Inc. (In re Mercer), 48 B.R. 562, 565 (Bankr. D. Minn. 1985). The Supreme Court has also explained that punitive damages are for the purposes of deterrence and punishment. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

Although the goals of punitive damages are clear, the methods of assessing punitive damages to enforce these goals are notoriously inconsistent. 250See Calandrillo, supra note 245, at 818–19. Modern Supreme Court jurisprudence has espoused numerous tests and rules to solve the unpredictable and arbitrary nature of punitive judgments, yet the Court still employs a largely subjective approach that does not directly address the key question: what amount of damages is optimal to incentivize potential violators of the law (e.g., the automatic stay) to make socially optimal choices? 251See id.

The law-and-economics theory of assessing and administering punitive damages may answer this question. This theory aims to determine systematically the appropriate levels of deterrence and punishment in society to maximize social welfare. 252Id. at 793. A consistent approach is especially important to maintain a predictable and stable bankruptcy system that businesses, consumers, and attorneys can rely on when making financial decisions. 253Gebbia-Pinetti, supra note 41, at 177–78.

This Comment discusses the two main policy reasons for awarding punitive damages for automatic stay violations—deterrence and retribution—and uses a law-and-economics approach to argue that awarding punitive damages to trustees does not further these policies. Consequently, the remedies available under § 362(k) should be reserved solely for debtors who are natural persons.

1. Administering Punitive Damages to Deter Future Violations

Deterrence is one of the main purposes of awarding punitive damages in general 254See Cooper Indus., 532 U.S. at 432; Gertz, 418 U.S. at 350. and, in bankruptcy cases, for violations of the automatic stay. 255See Quiñones Lopez v. Ford Motor Credit Corp. (In re Quiñones Lopez), 319 B.R. 58, 60 (Bankr. D.P.R. 2004). The theory behind deterrence is that “a potential wrongdoer [will] refrain[] from engaging in prohibited conduct because he or she perceives and fears the threat of legal punishment.” 256Jennifer K. Robbennolt, Determining Punitive Damages: Empirical Insights and Implications for Reform, 50 Buff. L. Rev. 103, 111–12 (2002). The degree to which punitive damages actually deter undesirable behavior is beyond the scope of this Comment. For a discussion of psychological factors that may influence the deterrent effects of tort law, see generally Daniel W. Shuman, The Psychology of Deterrence in Tort Law, 42 U. Kan. L. Rev. 115 (1993).

In theory, awarding punitive damages furthers both specific deterrence and general deterrence. In the context of automatic stay violations, specific deterrence refers to the deterrence of a specific creditor from violating the automatic stay in the future. 257Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 908 (Bankr. N.D. Ind. 2008) (“An award of punitive damages [for violation of the automatic stay] is part a deterrent, i.e., to cause a change in the creditor’s behavior, and in this context the prospect of such change is relevant to the amount of punitive damages to be awarded.”); In re Pawlowicz, 337 B.R. 640, 648 (Bankr. N.D. Ohio 2005) (explaining that “the primary purpose of an award of punitive damages becomes that which is sufficient to cause a change in the creditor’s behavior”). General deterrence, on the other hand, refers to the deterrence of all creditors from violating the stay. 258See Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008) (explaining that the purpose of the automatic stay is to deter the creditor and others like him from violating the automatic stay).

According to traditional justifications for imposing punitive damages, punitive damages are necessary for deterrence when compensatory damages alone are unlikely to have a sufficient deterrent effect either because (1) the wrongdoers are extremely likely to escape liability; or (2) compensatory damages are systematically too low. 259See Polinsky & Shavell, supra note 245, at 873–75. Trustees should not be able to recover punitive damages under the deterrence rationale because neither of these two circumstances applies to cases brought by trustees. Each of these two circumstances will be examined in turn below.

a. High Likelihood of Escaping Liability

According to economic theory, punitive damages intended to deter unwanted behavior should be awarded “if, and only if, an injurer has a significant chance of escaping liability for the harm he causes.” 260Id. at 874 (emphasis removed). Conversely, punitive damages are inappropriate when the probability of detection is medium or high. 261See id. at 895–96.

An injurer typically escapes liability for harms for which it should be liable in one of three circumstances: (1) the victim has difficulty determining that the harm was the result of another party’s unlawful conduct; 262Id. at 888; see also Calandrillo, supra note 245, at 800 (2010) (discussing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 563 (1996), and concluding that punitive damages are appropriate because the company was unlikely to be sued by the victims who were unlikely to notice the wear and tear on their cars). (2) even if the victim knows that another wrongfully injured him, the victim has difficulty proving who specifically caused the harm; 263Polinsky & Shavell, supra note 245, at 888. and (3) even if the victim knows that he was wrongfully injured and the party who injured him, the victim may decide to not sue the injurer. 264Id. This third situation often arises when “the magnitude of the damage is small enough that it is not worth the victim’s time or expense to litigate.” 265Calandrillo, supra note 245, at 800; see Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676–77 (7th Cir. 2003) (arguing that substantial punitive damages were necessary for adequate deterrence because the harmed individuals suffered only minor injuries and so would rationally choose not to sue and bear the costs of litigation).

Punitive damages are inappropriate for trustees because violators of the automatic stay are less likely to escape liability for violating the stay when a trustee brings the suit on behalf of the estate than when a debtor brings the suit. 266See supra text accompanying note 179. The three circumstances in which an injurer often evades liability discussed above do not apply to cases brought by trustees for several reasons.

First, a trustee would not have difficulty determining that a violation of the stay is an action that gives rise to a legal wrong. 267See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 n.1 (2d Cir. 1990) (quoting Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990)). Because trustees are usually bankruptcy lawyers or accountants appointed by the U.S. trustee based on their knowledge of bankruptcy proceedings, they are likely to be very familiar with the kind of conduct that constitutes a violation of the stay. 268Cf. In re Abacus Broad. Corp., 150 B.R. 925, 928 (Bankr. W.D. Tex. 1993). Congress may have viewed trustees and other entities, such as corporations, as “more likely to already know their rights under the bankruptcy law” because they are repeat players in the system. Id.; see also In re Chateaugay Corp., 920 F.2d at 186. On the other hand, debtors generally have little or no experience with bankruptcy proceedings and may not realize that a creditor’s conduct constitutes a violation. 269See In re Abacus Broad. Corp., 150 B.R. at 928 (“Congress may have viewed natural persons as particularly vulnerable to violations of the automatic stay” and drafted § 362(k) to provide a “precise, easily applied, private cause of action to vindicate [their] rights, consistent with the consumer protection goals of the statute.”). While an individual debtor can hire a bankruptcy lawyer to guide him during the proceeding, he may not know that the violation is one that merits hiring an attorney in the first place. 270See id.; see also Calandrillo, supra note 245, at 800; Polinsky & Shavell, supra note 245, at 888.

Second, if there have been some violation of the stay and subsequent harm to the estate, the trustee would have no trouble determining which creditor is responsible because he has a professional responsibility to keep track of who the creditors are and what the respective debts owed to each of them are. 271See 11 U.S.C. § 704(a)(2) (2006) (detailing a trustee’s duties to maintain comprehensive records of the property of the estate); Fed. R. Bankr. P. 2015.

Third, a trustee is more likely to sue a violating creditor because the estate, rather than the trustee himself, is bearing the cost of litigation. 272See Collier, supra note 3, ¶ 323.03. Attorneys’ fees are not always awarded. See, e.g., Thornburg v. Lynch (In re Thornburg), 277 B.R. 719, 731 (Bankr. E.D. Tex. 2002); Chase Lumber & Fuel Co. v. Koch (In re Koch), 197 B.R. 654, 660 (Bankr. W.D. Wis. 1996). Also, a trustee has the duty to administer and protect the property of the estate. 273See 11 U.S.C. § 704(a). Debtors, however, are less likely to file a lawsuit and incur additional attorneys’ fees, which would deepen their existing debt.

When the probability of detection is high, as it is in the case of a trustee representing the estate for a violation of an automatic stay, the damages awarded should equal the amount necessary to fully compensate for the harm caused. 274See Calandrillo, supra note 245, at 799; Polinsky & Shavell, supra note 245, at 890. In other words, any award of damages should only be compensatory and should not include punitive damages. 275“Specifically, punitive damages should equal the harm multiplied by . . . the ratio of the injurer’s chance of escaping liability to his chance of being found liable.” Polinsky & Shavell, supra note 245, at 890. Awarding punitive damages in circumstances in which the probability of detection is high would result in “overdeterrence,” thus leading to “decreased productivity, increased cost, decreased consumption, and a decline in overall social welfare.” 276Calandrillo, supra note 245, at 799.

If courts excessively apply punitive damages by awarding them to trustees in stay violation cases, then violating creditors would go to great lengths in the future to avoid paying those damages. 277See id. at 802–03 (2010). For example, the creditor may choose to stop collecting debts that it is legally entitled to collect or to incur the expense of retaining lawyers to counsel it on collecting unpaid debts after a debtor has filed for bankruptcy. These actions would result in lost profits or increased costs for the creditor, which may cause the creditor to increase its interest rates on future loans.

Alternatively, a deep-pocket creditor may hire judgment-proof independent contractors to engage in the behavior that violates the automatic stay to avoid the risk of punitive damages. 278See id. at 803. These independent contractors are often undercapitalized and thus do not need to worry that their collection habits could expose them to liability. 279See id.

b. Systematically Low Compensatory Damages

Similar to the effect of having a high likelihood that a creditor will escape liability for a violation, if the damages awarded for certain automatic stay violations are systematically too low, such compensatory damages will not adequately deter creditors from violating the stay. In these cases, punitive damages are necessary to adequately deter unwanted behavior. 280See Ellis Jr., supra note 247, at 26–31.

Compensatory damages are consistently too low when creditors seize a debtor’s personal property but the court does not award damages for emotional distress. 281See, e.g., Bank of Bos. v. Baker (In re Baker), 140 B.R. 88, 89–90 (D. Vt. 1992). Individual debtors, rather than trustees, usually bring cases in which the compensatory damages would be too low for adequate deterrence because trustees have little incentive to pursue recourse for violations of the stay that do not involve valuable property. The property at issue in these cases is often that which would not be valuable to the estate and thus to the trustee. 2826 Collier, supra note 3, ¶ 704.02[1].

For example, in a case in which a creditor violated the automatic stay by taking possession of the debtor’s vehicle, the court held that there was insufficient evidence to award compensatory damages for vehicle expenses and no basis for awarding damages for emotional distress. 283In re Baker, 140 B.R. at 89–90 (“Although the Bankruptcy Court indicated that other people may have been inconvenienced by debtor’s lack of an automobile, there was no evidence as to a rental car, or payment of expenses to people who transported debtor.”). If the amount of damages were based solely on compensatory damages, the creditor would not have been required to pay anything for the violation. For this reason, the court awarded the debtor attorneys’ fees and $10,000 in punitive damages for the bank’s misconduct. 284Id.

Furthermore, it is more important to deter violations of the stay that would result in a debtor taking action against the violating creditor, such as the wrongful repossession of exempted property, than violations that would result in the trustee taking action. The practice of awarding punitive damages for a violation of the automatic stay may deter would-be violators by encouraging these creditors to obtain relief from the stay or a determination that the stay does not preclude the creditors from exercising their interests in the debtor’s property. 285Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990). A creditor’s decision to seek such relief before repossessing the property is especially important when the property at stake is vital to the debtor’s livelihood or survival—such as the car the debtor uses to get to work or the bank account the debtor uses to buy daily groceries. The debtor is unlikely able to afford to lose such property for even a short amount of time. In contrast, the wrongful repossession of property belonging to the estate would not have the same negative effects, as a trustee is likely able to spend the time required to pursue the property without causing negative repercussions to the estate.

2. Administering Punitive Damages to Punish Offenders

Another purpose of punitive damages is to punish violators of the automatic stay. 286See, e.g., Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008); In re M & J Feed Mill, Inc., 112 B.R. 985, 990 (Bankr. W.D. Mo. 1990); Mercer v. D.E.F., Inc. (In re Mercer), 48 B.R. 562, 565 (Bankr. D. Minn. 1985). While awarding punitive damages for the purpose of deterrence is forward-looking and focuses on the consequences of the punishment, awarding punitive damages for retribution focuses on restoring the moral equilibrium after a wrongdoer has injured another party. 287See Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U. L. Rev. 1393, 1432–33 (1993). Such retributive punishment is a way to communicate to the offender that his behavior is prohibited. 288Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239, 242 (2009).

According to legal scholar Jean Hampton’s theory of retributivism, when a wrongdoer harms another individual, it is the expression of a false view that such wrongdoer is of elevated value compared to the injured party. 289Galanter & Luban, supra note 287, at 1432–34. By committing the wrong, “the wrongdoer has implicitly asserted a kind of undeserved mastery and superiority over the victim.” 290Id. at 1432. Hampton’s theory provides that “[t]he purpose of punishment is to reassert the truth about the relative value of wrongdoer and victim by inflicting a publicly visible defeat on the wrongdoer.” 291Id. Compensatory damages are sometimes insufficient to restore the disrupted moral equilibrium because they are based on the wrongdoer’s deserved loss, which is determined only by the injured party’s undeserved loss. 292Id. at 1433.

The bankruptcy system follows the same general rationale by using punitive damages to impose “appropriate sanctions on blameworthy parties.” 293Polinsky & Shavell, supra note 245, at 948. In this context, blameworthiness is equated with “the reprehensibility of a party’s conduct,” “[the conduct’s] maliciousness,” or “the extent to which [the conduct] reflects disregard for the well-being of others.” 294Id.

Awarding punitive damages based on blameworthiness requires some analysis of the morality of the conduct, which is subjective and problematic when assessing the amount of damages to be awarded. In calculating punitive damages using a retribution rationale, however, courts have considered the following factors:

whether the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident. 295See Markel, supra note 288, at 251 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)) (internal quotation marks omitted).

Bankruptcy courts have similarly identified several factors to be considered when awarding punitive damages for a violation of the automatic stay, including “the nature of the creditor’s conduct, the nature and extent of harm to the debtor, . . . [and] the creditor’s motives.” 296Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 908 (Bankr. N.D. Ind. 2008). Courts have also mentioned a creditor’s ability to pay damages, the level of a creditor’s sophistication, and any provocation by the debtor as factors to be considered. See, e.g., id. However, these factors are less relevant to assessing punitive damages for retributive reasons and will not be examined in this Comment.

The most important factor courts must consider is the reprehensibility of the creditor’s conduct. 297Gore, 517 U.S. at 575 (requiring a court to examine “the degree of reprehensibility of the defendant’s conduct” because it was “[p]erhaps the most important indicium of the reasonableness of a punitive damages award”). In assessing the reprehensibility of the violator’s conduct, the Supreme Court has drawn a distinction between acts that inflict “purely economic” harm and instances that show a “reckless disregard for the health and safety of others,” implying that the latter should be subject to higher punitive damages. 298Id. at 576. Similarly, one court explained that automobile repossessions, personal property, home foreclosures, and instances where bodily harm is threatened are the most serious violations. 299Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 826 (B.A.P. 1st Cir. 2002); accord Progressive Motors, Inc. v. Frazier, 220 B.R. 476, 477–78 (D. Utah 1998) (repossession of a car); Bishop v. U.S. Bank/Firstar Bank, N.A. (In re Bishop), 296 B.R. 890, 898–99 (Bankr. S.D. Ga. 2003) (repossession of a truck).

Thus, a violation of an automatic stay is likely to be considered most reprehensible if it affects the individual debtor himself and not just the property belonging to the estate. The debtor, rather than the trustee, is usually the party to pursue a case involving physical harm to the debtor himself or a case involving the repossession of personal property because these items are most likely to be exempted from the estate. 300See, e.g., Frazier, 220 B.R. at 477 (repossession of a car); In re Bishop, 296 B.R. at 892–94 (repossession of a truck). Trustees have a stake in pursuing a violation of a stay when the property involved is one of the key assets the trustee is trying to liquidate—that is, when the property is valuable and has not been exempted. 301See 11 U.S.C. § 704(a)(1) (2006) (explaining that, in a chapter 7 case, the role of the trustee is to liquidate the debtor’s assets and distribute the proceeds to creditors in an expeditious manner). When an individual debtor pursues an adjudication of a stay violation, there are usually more than just financial interests at stake. Thus, a trustee does not have a compelling argument to assert a retributive rationale for punitive damages because the trustee does not have a personal stake in the matter.

3. A Note on Awarding Punitive Damages to Serve a Compensatory Purpose

Although some commentators have argued that punitive damages should not be awarded to correct for inadequate compensatory damages, 302Polinsky & Shavell, supra note 245, at 942; see Gary T. Schwartz, Deterrence and Punishment in the Common Law of Punitive Damages: A Comment, 56 S. Cal. L. Rev. 133, 139–40 (1982). punitive damages awarded in the circumstances described above are not to compensate the victim, but to either deter or punish the offender. Punitive damages, however, have a long history of being awarded to supplement compensatory damages for intangible wrongs. 303See Exxon Shipping Co. v. Baker, 554 U.S. 471, 491–92 (2008); Calandrillo, supra note 245, at 781 (listing “the essential functions of punitive damages: punishment, deterrence, and supplemental compensation”). But, “as the scope of compensatory damages expanded to include intangible harms including hurt feelings and indignities in recent years, . . . the need to use punitive damages to compensate such harms may have diminished.” 304Markel, supra note 288, at 249.

Because punitive damages are awarded in reaction to a creditor’s conduct and not the plaintiff’s loss, it may seem irrelevant whether the plaintiff is a debtor or a trustee. The Supreme Court, however, has suggested that, while punitive damages are not compensatory, the plaintiff’s status is relevant to an assessment of punitive damages. 305See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576–77 (1996) (listing the debtor’s financial vulnerability as a factor for determining the defendant’s degree of reprehensibility). “Moreover, notwithstanding the public nature of the retributive and deterrent functions the Court associates with extra-compensatory damages, only a small number of states have adopted split recovery schemes through which the state shares in the pre-tax award of punitive damages.” 306Markel, supra note 288, at 250. “Consequently, in most states, if a court awards [punitive] damages, the plaintiff [(either the debtor or the debtor’s estate via the trustee)] will receive most, if not all, of [the award].” 307Id. Thus, whether these damages are designed as compensatory, the fact that the plaintiff is the party benefiting from the punitive damages suggests that there is, at least practically, a compensatory element to these damages that warrants further consideration.

Requiring a creditor to pay punitive damages in a proceeding brought by an individual debtor makes intuitive sense. The debtor himself was wronged by the stay violation, and there is a sense that he deserves this extra compensation. But, requiring a creditor to pay punitive damages when the trustee asserts a stay violation produces a more absurd result. The punitive damages are awarded to the estate, which is then distributed to creditors. Thus, the creditors, including the one that violated the automatic stay resulting in the payment of punitive damages, reap the reward for the violation, albeit in an indirect way. This result is not likely what Congress intended when it enacted § 362(k).

IV. Possible Implications for Other Bankruptcy Players

A determination of whether a trustee is considered an individual under § 362(k) affects not only chapter 7 trustees, but also others who have standing to seek a remedy for a violation of the stay, including chapter 11 trustees, corporations, and other entities that are neither debtors nor pre-petition creditors. 308See Metro. Life Ins. Co. v. Alside Supply Ctr. of Knoxville (In re Clemmer), 178 B.R. 160, 162–63 (Bankr. E.D. Tenn. 1995); In re Prairie Trunk Ry., 112 B.R. 924, 929–31 (Bankr. N.D. Ill. 1990). See generally Surette, supra note 40. For this reason, should Congress choose to amend § 362(k) to specifically exclude trustees, it should be careful to construct a narrowly tailored provision that would not unintentionally exclude such parties.

First, if a trustee is not considered an individual under § 362(k), a violating creditor can argue that a chapter 11 debtor in possession, like a trustee, is not an individual under § 362(k). Section 1107(a) states that “a debtor in possession shall have all the rights . . . and powers, and shall perform all the functions and duties, . . . of a trustee serving in a case under this chapter.” 30911 U.S.C. § 1107(a) (2006). Furthermore, in § 1107(a)’s legislative history, Congress stated that § 1107(a) “places a debtor in possession in the shoes of a trustee in every way” and he is “subject to any limitations on a chapter 11 trustee.” 310S. Rep. No. 95-989, at 116 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5902.  Because a debtor in possession in chapter 11 has all the rights and is subject to all the limitations of an ordinary trustee, if a trustee is not considered an individual under § 362(k), then a violating creditor could argue that a chapter 11 debtor in possession may not be considered an individual either. However, this argument is weak, as it would likely be considered to go against Congress’s intention.

Second, courts have considered the issue of whether a corporation is an individual under § 362(k) as analogous to the issue of whether a trustee is an individual. 311See, e.g., Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 184–87 (2d Cir. 1990). See generally Swarthout, supra note 99. If the plain meaning of “individual” in § 362(k) includes only natural persons, a corporation may not be considered an individual under the statute because a corporation also is not a natural person. 312 In re Chateaugay Corp., 920 F.2d at 184–85. See generally Swarthout, supra note 99. Whether a corporation should be eligible to recover under § 362(k) is outside the scope of this Comment. However, in contrast to the case of trustees, it may be easier to argue that punitive damages are necessary to deter and punish stay violations against corporations. 313See Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986). With respect to the issue of whether creditors’ violations would go undetected, corporations are more analogous to individual debtors than trustees. For instance, like individual debtors, corporations, especially closely held corporations, are often not as educated in bankruptcy as trustees are, and they have a more personal interest in the property than trustees do.

Conclusion

Congress enacted § 362(k) to offer specific statutory protection for individual debtors victimized by a creditor’s violation of the automatic stay. It presumably recognized the importance of protecting vulnerable individual debtors unfamiliar with bankruptcy law 314H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions.”). and thus limited the recovery under § 362(k) to “individuals injured” by an automatic stay violation. 315See 11 U.S.C. § 362(k) (2006). Trustees do not require a similar level of protection under the Code and do not need § 362(k) to recover damages, specifically punitive damages.

Since the enactment of § 362(k) in 1984, courts have repeatedly disagreed on whether the term “individual” encompasses only individual debtors or also includes trustees. 316Compare Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (trustee is not an individual), In re Chateaugay Corp., 920 F.2d at 184–85 (corporate debtor is not an individual), and Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884–85 (8th Cir. 1997) (corporate debtor is not an individual), with In re Atl. Bus. & Cmty. Corp., 901 F.2d at 329 (corporate debtor is an individual). Although a circuit split on this issue has existed for the past decade and new case law is continually added to this split, 317See, e.g., Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1189 (9th Cir. 2003); Barstow v. Ingaldson Maasen & Fitzgerald (In re Avery), Ch. 7 Case No. A06-00455-DMD, Adv. No. 85-1190, 2011 WL 5330789, at *3 (Bankr. D. Alaska Nov. 4, 2011); In re Sayeh, 445 B.R. 19, 27 (Bankr. D. Mass. 2011); Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 762–63 (Bankr. N.D. Ill. 2007). there is still very little Supreme Court or congressional guidance on how to address this issue.

Most courts have focused primarily on the plain meaning of the term “individual” to resolve this question. 318See In re Pace, 67 F.3d at 193. An analysis of the statute’s language in accordance with Supreme Court precedent demonstrates that the plain meaning of “individual” under § 362(k) only includes natural persons. Because trustees are representatives of a bankruptcy estate—an entity—they should not be considered natural persons for the purposes of § 362(k). Furthermore, trustees are not injured by the violation of the automatic stay, as the statute requires.

Nevertheless, it is not appropriate to solely rely on plain meaning to resolve the question of whether a trustee is an individual under § 362(k). The rules for determining plain meaning espoused by the Supreme Court produce results that are unreliable, arbitrary, and in some cases, contradictory. 319See, e.g., Bussel, supra note 150, at 897; Kelch, supra note 148, at 301–09; Klee & Merola, supra note 148, at 1–2; Lawless, supra note 148, at 109–10; Markell, supra note 148, at 181–82; Tabb & Lawless, supra note 148, at 879–85; Tabb, supra note 148, at 570–75. And, the fact that courts have disagreed on the plain meaning of “individual” for the past thirty-five years suggests that the statute is ambiguous.

The conclusion that the plain meaning of § 362(k) indicates that the term “individual” is meant to apply to only natural persons, and not to trustees, is consistent with the statute’s purpose to protect individual consumers. Furthermore, such a conclusion adheres to the goals behind the assessment of punitive damages—to deter violations of the stay and to punish violators. Appropriately, punitive damages are the only form of damages the trustee would not have access to if he were forced to rely on § 105 instead of § 362(k).

Several courts have reasoned that, plain meaning and congressional intent aside, an interpretation of § 362(k) that precludes trustees, and perhaps other major players in the bankruptcy system, from recovering under the statute would be contrary to the broad purpose of the automatic stay. 320See supra text accompanying notes 170–71. According to the Supreme Court, however, “the sole function of the courts is to enforce [a statute] according to its terms,” not to attempt to improve enacted legislation as the courts see fit. 321United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). As the Third Circuit stated in In re Chateaugay Corp., “even if we thought § 362(h) [(now § 362(k))] would better serve the code’s purposes by being applied to all debtors, we could do no more than invite Congress to change the result.” 322Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 187 (2d Cir. 1990) (citing Corwin Consultants, Inc. v. Interpublic Grp. of Cos., 512 F.2d 605, 611 (2d Cir. 1975)).

Until Congress acts, the courts should enforce § 362(k) in a way that makes both interpretive and intuitive sense and preclude trustees from recovering punitive damages for a violation of the automatic stay.

Footnotes

111 U.S.C. § 362 (2006).

2H.R. Rep No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions.”).

3See 3 Collier on Bankruptcy ¶ 362.03 (Alan N. Resnick & Henry J. Sommer eds., 16th ed. 2012).

4Smith v. Homes Today, Inc. (In re Smith), 296 B.R. 46, 52 (Bankr. M.D. Ala. 2003) (creditor repossessed a debtor’s mobile home while debtor was physically inside it, requiring her to jump from the moving home to the ground).

5See, e.g., Aponte v. Aungst (In re Aponte), 82 B.R. 738, 745 (Bankr. E.D. Pa. 1988) (landlord repeatedly turned off the heat and hot water to the apartment rented by the tenant-debtor, even though the landlord knew of the debtor’s bankruptcy filing).

6In re Baker, 183 B.R. 30, 31 (Bankr. D.R.I. 1995).

7Id.

8Id.

9Id. at 32.

10Id. at 32 n.4.

11Id. at 33.

12See Collier, supra note 3, ¶ 362.03[1] (“[The stay] provides immediate relief for debtors in financial difficulty and . . . protects individual debtors’ exemption rights, and their ability to avoid liens on exempt property and redeem exempt personal property, by preventing creditors from seizing or selling the property at issue.”).

13See, e.g., In re Baker, 183 B.R. at 32; Aponte v. Aungst (In re Aponte), 82 B.R. 738, 743, 745–46 (Bankr. E.D. Pa. 1988).

14See, e.g., In re Aponte, 82 B.R. at 745.

15Id. (quoting Allstate Ins. Co. v. A.M. Pugh Assocs., Inc., 604 F. Supp. 85, 99 (M.D. Pa. 1984)).

1611 U.S.C. § 323 (2006).

17See id. § 704(a) (outlining the duties of the trustee).

18See In re Baker, 183 B.R. at 31 (claim for $2,200); 6 Collier, supra note 3, ¶ 704.02[1]–[2].

19See, e.g., In re Szekely, 936 F.2d 897, 903 (7th Cir. 1991) (finding that the trustee was not entitled to take possession of debtors’ home, which was partially exempt, until the trustee paid off the homestead exemption in cash).

206 Collier, supra note 3, ¶ 704.02[1]–[2].

21In re Preston Lumber Corp., 199 B.R. 415, 416 (Bankr. N.D. Cal. 1996) (“This collateral is encumbered far in excess of its worth. Accordingly, the estate should have no interest in administering these assets and the trustee would be expected to abandon them.”).

22See In re Baker, 183 B.R. at 32 n.4.

23See, e.g., id. at 33.

24See discussion infra Part III.B.1.b.

25See discussion infra Part III.B.

26See Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 823 (B.A.P. 1st Cir. 2002) (“When all is said and done, a punitive damage award will stand unless it clearly appears that the amount of the award exceeds the outer boundary of the universe of sums reasonably necessary to punish and deter the defendant’s conduct.” (quoting Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 81 (1st Cir. 2001))).

27See discussion infra Part III.B.1.a.

28Prior to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the text now contained in § 362(k) was designated as § 362(h).

2911 U.S.C. § 362(k)(1) (2006).

30Id.

31Id. § 105(a) (authorizing a bankruptcy court to “issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title”); Burd v. Walters (In re Walters), 868 F.2d 665, 669 (4th Cir. 1989) (concluding that § 105(a)’s plain meaning allows the bankruptcy court to hold a party in civil contempt).

32Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment [of § 362(k)], . . . the standard that governed the imposition of sanctions was that which governed contempt proceedings: a party generally would not have sanctions imposed for its violation of an automatic stay as long as it had acted without maliciousness and had had a good faith argument and belief that its actions did not violate the stay.”).

33See also Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 885 (8th Cir. 1997) (holding that “the power to punish” through punitive sanctions extends beyond the remedial goals of § 105(a)).

34See discussion infra Part II.A.1.

35Collier, supra note 3, ¶ 362.12[3].

36Compare Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir. 1995), with Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990).

37See, e.g., In re Just Brakes Corporate Sys., 108 F.3d at 884; Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1552–53 (11th Cir. 1996); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990). But see Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986) (holding that “individual” includes a corporation).

38Compare United States v. Midway Indus. Contractors, Inc. (In re Midway Indus. Contractors, Inc.), 178 B.R. 734, 738 (N.D. Ill. 1995) (corporate debtor is not an individual), Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147 (N.D. Ill. 1992) (corporate debtor is not an individual), Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 762–63 (Bankr. N.D. Ill. 2007) (trustee is not an individual), In re Fashions USA Inc., 301 B.R. 528, 529–30 (Bankr. C.D. Ill. 2003) (corporate debtor is not an individual), and McRoberts v. S.I.V.I. (In re Bequette), 184 B.R. 327, 335 (Bankr. S.D. Ill. 1995) (corporate debtor is not an individual), with Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995) (trustee is an individual), and In re A & C Electric Co., 188 B.R. 975, 980 (Bankr. N.D. Ill. 1995) (corporate debtor is an individual), aff’d sub nom. Divane v. A & C Electric Co., 193 B.R. 856 (N.D. Ill. 1996).

39See H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions. It permits the debtor to attempt a repayment or reorganization plan, or simply to be relieved of the financial pressures that drove him into bankruptcy. The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors.”).

40Eric C. Surette, Annotation, Remedies and Damages for Violations of the Automatic Stay Provisions of the Bankruptcy Code (11 U.S.C.A. § 362(h)), by Parties Other Than the Federal Government, 153 A.L.R. Fed. 463 (1999).

41Karen M. Gebbia-Pinetti, Interpreting the Bankruptcy Code: An Empirical Study of the Supreme Court’s Bankruptcy Decisions, 3 Chap. L. Rev. 173, 176–77 (2000).

42 See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 409 (1993) (O’Connor, J., dissenting) (“An entity in bankruptcy can ill afford to waste resources on litigation; every dollar spent on lawyers is a dollar creditors will never see.”).

43Bankruptcy Reform Act of 1978, Pub. L. No. 95-598, § 101, 92 Stat. 2549, 2570–72 (codified as amended at 11 U.S.C. § 362 (2006)).

44Collier, supra note 3, ¶ 362.LH[4][b] (noting that recovery for willful infringement was added with the 1984 amendment). Compare Bankruptcy Reform Act of 1978 § 101, 92 Stat. at 2570–72, with Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352.

45See Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment in 1984 of [§ 362(h), which is now § 362(k)], . . . the standard that governed the imposition of sanctions [for a violation of an automatic stay] was that which governed contempt proceedings . . . .”); Collier, supra note 3, ¶ 362.12[2].

46See discussion infra Part I.C.

47Bankruptcy Amendments and Federal Judgeship Act of 1984 § 304, 98 Stat. at 352.

48See id.

49Sensenich v. Ledyard Nat’l Bank (In re Campbell), 398 B.R. 799, 814 (Bankr. D. Vt. 2008) (emphasis added) (quoting 3 Collier on Bankruptcy ¶ 362.11[3] (Lawrence P. King ed., 15th ed. rev. 2005)).

50Voelkel v. Naylor (In re Voelkel), 322 B.R. 138, 144 (B.A.P. 9th Cir. 2005) (citing 6 Collier on Bankruptcy ¶ 707.04 (Alan N. Resnick et al. eds., 15th ed. 2001)).

51Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §§ 305(1)(B), 441(1)(A), 119 Stat. 23, 79, 114 (codified as amended at 11 U.S.C. § 362(k)(1) (2006)).

52Id. § 441(1)(B), 119 Stat. at 114 (codified as amended at 11 U.S.C. § 362(k)(2)).

5311 U.S.C. § 362(k) (emphasis added). The Bankruptcy Technical Corrections Act of 2010 also later amended § 362, but left § 362(k) unchanged. See Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, § 2(a)(12), 124 Stat. 3557, 3558–59.

5411 U.S.C. § 541(a).

55Id. § 701(a)(1). The U.S. trustee appoints the interim trustee who serves, unless the creditors elect a trustee. 6 Collier, supra note 3, ¶ 701.01. “Because, in the vast majority of cases, no trustee is elected by creditors, the interim trustee usually becomes the permanent trustee for the case.” Id.

5611 U.S.C. § 323(a). This provision must be read together with 28 U.S.C. § 959(a), which states that “[t]rustees . . . may be sued . . . with respect to any of their acts or transactions in carrying on business connected with such property,” and Fed. R. Bankr. P. 6009, which states that “the trustee or debtor in possession may prosecute or may enter an appearance and defend any pending action or proceeding by or against the debtor, or commence and prosecute any action or proceeding in behalf of the estate before any tribunal.”

576 Collier, supra note 3, ¶ 704.03.

5811 U.S.C. § 704(a) (outlining the duties of the trustee in a chapter 7 case). Section 704 does not directly control the duties of trustees in chapter 11, 12, or 13 cases, but most of a chapter 7 trustee’s duties are incorporated by reference in chapters 11, 12, and 13. See id. §§ 1106(a)(1), 1202(b)(1), 1302(b)(1). In addition, a chapter 11 debtor in possession must perform duties similar to many of a chapter 7 trustee’s duties. See id. § 1107(a).

59See id. § 704(a)(1).

60See id. § 507(a) (setting out the distribution priority of unsecured claims).

61Collier, supra note 3, ¶ 323.01.

62See In re Szekely, 936 F.2d 897, 903 (7th Cir. 1991) (holding that the trustee was not entitled to take possession of debtors’ home, which was partially exempt, until debtors received the value of the homestead exemption in cash). Section 522 allows, in many bankruptcy cases, an individual debtor to “claim exemptions sufficient to remove all unencumbered property from the bankruptcy estate.” 4 Collier, supra note 3, ¶ 522.01 (emphasis added). The types of property that the debtor may typically exempt include the debtor’s residence, an automobile, household furnishings, and property used in the debtor’s trade or business. 11 U.S.C. § 522(d).

636 Collier, supra note 3, ¶ 704.02[1]; see also Noland v. Williamson (In re Williamson), 94 B.R. 958, 963 (Bankr. S.D. Ohio 1988); In re Landreneau, 74 B.R. 12, 13 (Bankr. W.D. La. 1987).

646 Collier, supra note 3, ¶ 704.02[1]; see also In re Preston Lumber Corp., 199 B.R. 415, 416 (Bankr. N.D. Cal. 1996).

65See 2 Collier Bankruptcy Practice Guide ¶ 38.02[1] (Alan N. Resnick & Henry J. Sommer eds., 2012).

661 Collier, supra note 3, ¶ 1.05[1].

67See Collier, supra note 3, ¶ 362.07 [1].

68Id. ¶ 362.12[3].

6911 U.S.C. § 362(k)(1) (2006).

70Section 323(b) provides the trustee “with the authority and discretion to prosecute, defend or settle, if appropriate in its judgment, causes of action that existed at the time the order for relief was entered.” Collier, supra note 3, ¶ 323.01; see also 11 U.S.C. § 323(b).

716 Collier, supra note 3, ¶ 704.03.

72Id.; see also Frostbaum v. Ochs, 277 B.R. 470, 475 (E.D.N.Y. 2002).

73See Ellis v. Emery (In re Upland Partners), 93 F. App’x 166, 168 (9th Cir. 2004) (“[T]he sanction was for the benefit of the estate . . . .”).

74See supra text accompanying note 60 (“Any property that is not exempt from the estate is liquidated, and its value is distributed to unsecured creditors under the direction of the trustee.”); see also 11 U.S.C. § 507(a) (setting out the distribution priority of unsecured claims).

75H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97.

76Id.

77See id.

78See id.; Collier, supra note 3, ¶ 362.03.

79H.R. Rep. No. 95-595, at 340, reprinted in 1978 U.S.C.C.A.N. at 6297; Collier, supra note 3, ¶ 362.03; see also Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 435 (N.D. Ill. 1995).

80See Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1104 (2d Cir. 1990) (“Prior to the enactment [of § 362(k)], . . . the standard that governed the imposition of sanctions was that which governed contempt proceedings: a party generally would not have sanctions imposed for its violation of an automatic stay as long as it had acted without maliciousness and had had a good faith argument and belief that its actions did not violate the stay.”).

81See Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1546 (11th Cir. 1996).

8211 U.S.C. § 105(a) (2006).

83Id.

84Id.

85See Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 (2d Cir. 1990); Wagner v. Ivory (In re Wagner), 74 B.R. 898, 902–03 (Bankr. E.D. Pa. 1987).

86Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 620 (9th Cir. 1993).

87See Collier, supra note 3, ¶ 362.12; see also Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1559 (11th Cir. 1996); Henkel v. Lickman (In re Lickman), 297 B.R. 162, 195 (Bankr. M.D. Fla. 2003) (“Section 105(a), on the other hand, provides no authority for the imposition of punitive damages for violations of the automatic stay.” (citing In re Jove Eng’g, Inc., 92 F.3d at 1559)).

88Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003).

89Walls v. Wells Fargo Bank, N.A., 276 F.3d 502, 507 (9th Cir. 2002); see also Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 885 (8th Cir. 1997) (finding that Congress did not expressly grant “the power to punish” through punitive sanctions under § 105(a)).

90Walls, 276 F.3d at 507.

91Collier, supra note 3, ¶ 362.12[3] (“[T]he imposition of a remedy under a civil contempt procedure may be subject to a stricter standard than is imposed by section 362(k) and does not afford the availability of punitive, in addition to compensatory, damages.”); but see id. (“[A]lthough the standards and procedures for contempt may be slightly more demanding, courts have had little difficulty dealing with and punishing stay violations even without the availability of section 362(k). There is little reason to adopt a tortured reading of the statute in order to provide corporate or partnership debtors or trustees with a remedy for stay violations.” (footnote omitted)).

92Stockschlaeder & McDonald, Esqs. v. Kittay (In re Stockbridge Funding Corp.), 145 B.R. 797, 805 (Bankr. S.D.N.Y. 1992) (setting forth two requirements for finding civil contempt as being: (1) creditor must have knowledge of specific, precise order of bankruptcy court; and (2) creditor must knowingly violate that order of bankruptcy court), aff’d in part, vacated in part, 158 B.R. 914 (S.D.N.Y. 1993). These requirements are the same in the Second, Third, Fourth, and Ninth Circuits. See, e.g., Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990); Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 293 (4th Cir. 1986); Putnam v. Rymes Heating Oils, Inc. (In re Putnam), 167 B.R. 737, 740 (Bankr. D.N.H. 1994) (citing Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 618 (9th Cir. 1993)).

93Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 907 (Bankr. N.D. Ind. 2008) (citing Price v. United States (In re Price), 42 F.3d 1068, 1071 (7th Cir. 1994)); Surette, supra note 40, § 2[a] (“The willfulness element [of the automatic stay] goes to the deliberateness of the act that violated the stay, and not to a specific intent to violate the automatic stay.”).

94Shadduck v. Rodolakis, 221 B.R. 573, 580 (D. Mass. 1998).

95See 11 U.S.C. § 362(k) (2006).

96See Surette, supra note 40, § 2[a].

97See Havelock v. Taxel (In re Pace), 67 F.3d 187, 192 (9th Cir. 1995) (“There is no controlling authority from this or any other circuit that answer the question [of whether a trustee is an individual under § 362(k)].”).

98The Second, Eighth, and Ninth Circuits hold that non-natural persons, specifically trustees or corporations, are not individuals. See Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003); Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884 (8th Cir. 1997) (corporate debtor); Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir. 1996) (trustee); In re Pace, 67 F.3d at 193 (trustee); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993) (corporate debtor); Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990) (corporate debtor). However, the Third Circuit holds that a trustee is an individual. Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990).

99See generally David Swarthout, Note, When Is an Individual a Corporation?—When the Court Misinterprets a Statute, That’s When!, 8 Am. Bankr. Inst. L. Rev. 151 (2000).

100The Supreme Court tangentially addressed the meaning of “individual” in Toibb v. Radloff when it interpreted the term “person.” Toibb v. Radloff, 501 U.S. 157, 160–61 (1991). The Court concluded that the petitioner could be a chapter 11 debtor under 11 U.S.C. § 109(d) because the Code defines “person” as used in title 11 to include an “individual” and § 109(d) does not expressly preclude an “individual” from filing under chapter 11. Id.

101Mohamad v. Rajoub, 634 F.3d 604, 607 (D.C. Cir. 2011) (interpreting the meaning of “individual” in the Torture Victim Protection Act), aff’d sub nom. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012); see also In re North, 12 F.3d 252, 254–55 (D.C. Cir. 1994) (per curiam) (interpreting the meaning of “individual” in the Ethics in Government Act using the ordinary approach and finding that “individual” describes a “natural person”).

102See generally Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 724 (2011); Hamilton v. Lanning, 130 S. Ct. 2464, 2471 (2010); Patterson v. Shumate, 504 U.S. 753, 757–59 (1992); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989).

103Ron Pair, 489 U.S. at 241.

104See Gebbia-Pinetti, supra note 41, at 189. See generally William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621 (1990); William D. Popkin, An “Internal” Critique of Justice Scalia’s Theory of Statutory Interpretation, 76 Minn. L. Rev. 1133 (1992); Robert K. Rasmussen, A Study of the Costs and Benefits of Textualism: The Supreme Court’s Bankruptcy Cases, 71 Wash. U. L.Q. 535 (1993); Nicholas S. Zeppos, Justice Scalia’s Textualism: The “New” New Legal Process, 12 Cardozo L. Rev. 1597 (1991).

105Gebbia-Pinetti, supra note 41, at 189.

106Ron Pair, 489 U.S. at 241 (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

107Ransom, 131 S. Ct. at 724 (“[A court] must give effect to every word of a statute wherever possible.” (quoting Leocal v. Ashcroft, 543 U.S. 1, 12 (2004))).

108Ron Pair, 489 U.S. at 241 (examining the placement of commas in the statute).

10911 U.S.C. § 362(k)(1) (2006) (emphasis added).

110See Ransom, 131 S. Ct. at 724 (quoting Leocal, 543 U.S. at 12).

111See id. (citing Leocal, 543 U.S. at 12); Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147–48 (N.D. Ill. 1992).

112Ransom, 131 S. Ct. at 724–25.

113Id. at 724.

114Id.

11511 U.S.C. § 101(15) (2006) (“The term ‘entity’ includes person, estate, trust, governmental unit, and United States trustee.” (emphasis added)).

116See In re Sayeh, 445 B.R. 19, 27 (Bankr. D. Mass. 2011).

117Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 763–64 (Bankr. N.D. Ill. 2007) (“The addition of ‘entity’ in such close proximity to ‘individual’ is strong evidence that Congress was aware of the distinction between the terms and deliberately chose to retain the more narrow term in the new section 362(k)(1).”).

118Congress used the term “entity” in § 362(k)(2), which BAPCPA added to § 362(k) in 2005, but Congress did not amend the term “individual” as used in § 362(k)(1). See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 441(1), 119 Stat. 23, 114 (codified as amended at 11 U.S.C. § 362(k)(1)–(2)).

119See Consol. Rail Corp. v. Gallatin State Bank, 173 B.R. 146, 147–48 (N.D. Ill. 1992) (“If Congress had intended to make Section 362(h) [include corporations or trustees], it would have done so more clearly.”).

120See Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 724 (2011); In re A & C Electric Co., 188 B.R. 975, 980 (Bankr. N.D. Ill. 1995), aff’d sub nom. Divane v. A & C Electric Co., 193 B.R. 856 (N.D. Ill. 1996).

121See generally 11 U.S.C. § 101.

122See In re A & C Electric Co., 188 B.R. at 980 (“Since Congress did not define ‘individual’ in the Bankruptcy Code, its use of that word can be read according to its common dictionary meaning . . . .”).

123Ransom, 131 S. Ct. at 724.

124Webster’s Third New International Dictionary 1152 (2002).

125New Oxford American Dictionary 865 (Elizabeth J. Jewell & Frank Abate eds., 2001). Black’s Law Dictionary only defines the adjective form of “individual,” not the noun form. Black’s Law Dictionary 843 (9th ed. 2009).

126See Kenneth N. Klee, Bankruptcy and the Supreme Court 21 (2008); see also Cohen v. De La Cruz, 523 U.S. 213, 220 (1998) (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”); Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (“[A] word is presumed to have the same meaning in all subsections of the same statute.” (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983))).

127Patterson, 504 U.S. at 758 n.2 (quoting Morrison-Knudsen, 461 U.S. at 633); see also Cohen, 523 U.S. at 220 (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”). But see Dewsnup v. Timm, 502 U.S. 410, 417 n.3 (1992) (“[W]e express no opinion as to whether the words ‘allowed secured claim’ have different meaning in other provisions of the Bankruptcy Code.”).

128See, e.g., 11 U.S.C. § 101(41) (2006).

129Id. § 101(15).

130Id. § 101(41).

131See id. § 101(15), (41).

132See Hamilton v. Lanning, 130 S. Ct. 2464, 2474 (2010) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law” (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998)) (internal quotation marks omitted)). But see Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253 (1992) (“Redundancies across statutes are not unusual events in drafting, and so long as there is no ‘positive repugnancy’ between two laws, a court must give effect to both.” (citations omitted)).

13311 U.S.C. § 101(8) (defining “consumer debt” as “debt incurred by an individual primarily for a personal, family, or household purpose”); id. § 101(44) (defining “railroad” as a mode of travel concerned with transportation of “individuals”); id. § 101(45) (defining “relative” as an “individual related by affinity or consanguinity within the third degree”); id. § 109(e) (providing that only an “individual” with regular income and such individual’s spouse may become a chapter 13 debtor); id. § 365(d)(5) (stating that trustee will timely perform all obligations of debtor under unexpired lease of personal property, other than personal property “leased to an individual primarily for personal, family, or household purposes”); id. § 507(a)(4) (discussing unsecured claims for “each individual or corporation” and providing that priority is given where “wages, salaries, or commissions, including vacation, severance, and sick leave pay[, are] earned by an individual”).

134See, e.g., Fed. R. Bankr. P. 1016 (discussing “individuals” under rule entitled “Death or Incompetency of Debtor”); id. 5002(a) (stating that an “individual [who] is a relative of the bankruptcy judge” cannot be appointed as trustee); id. 7004(b)(1) (providing service on “an individual other than an infant or incompetent”).

135 See, e.g., Voluntary Petition, Official Form 1 (04/10), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_Official_2010/B_001_0410.pdf (distinguishing between individual and corporate debtors); Involuntary Petition, Official Form 5 (12/07), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_1207/B_005_1207f.pdf (distinguishing between individual and corporate debtors); Statement of Financial Affairs, Official Form 7 (04/10), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/BK_Forms_Official_2010/B_007_0410.pdf (distinguishing between individual and corporate debtors).

13611 U.S.C. § 101(18).

137See Cohen v. De La Cruz, 523 U.S. 213, 220 (1998) (noting that there is a presumption that “equivalent words have equivalent meaning when repeated in the same statute”); Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (“[A] word is presumed to have the same meaning in all subsections of the same statute.” (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983))). But see Dewsnup v. Timm, 502 U.S. 410, 417 n.3 (1992) (“[W]e express no opinion as to whether the words ‘allowed secured claim’ have different meaning in other provisions of the Bankruptcy Code.”).

138United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240–41 (1989).

139Id. at 242 (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).

140Id.

141Klee, supra note 126, at 31; see BFP v. Resolution Trust Corp., 511 U.S. 531, 542–43 (1994). In interpreting § 548’s use of the phrase “reasonably equivalent value,” Justice Scalia wrote that, “absent clearer textual guidance than the phrase ‘reasonably equivalent value’—a phrase entirely compatible with pre-existing practice,” the Court would not depart from real estate mortgage foreclosure practices that had existed for over 400 years. Id.

142See, e.g., Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (finding that it is well established that “when the statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms” (quoting Ron Pair, 489 U.S. at 241) (internal quotation marks omitted)); INS v. Cardoza-Fonseca, 480 U.S. 421, 452 (1987) (Scalia, J., concurring) (non-bankruptcy case).

143See Klee, supra note 126, at 17. Regardless of whether the plain meaning is clear, recent Supreme Court decisions have applied a more liberal plain meaning approach than the one endorsed in Ron Pair and have looked to whether the statute’s purpose and legislative history lend to their interpretation of a term’s original meaning. See generally Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716 (2011); Hamilton v. Lanning, 130 S. Ct. 2464 (2010). In Ransom, the Court considered whether “BAPCPA’s purpose strengthen[ed its] reading of the term ‘applicable.’” Ransom, 131 S. Ct. at 725.

144See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 184 (2d Cir. 1990).

145Ron Pair, 489 U.S. at 241.

146 See, e.g., Bohm v. Howard (In re Howard), 428 B.R. 335, 337 (Bankr. W.D. Pa. 2010), aff’d sub nom. United Bank, Inc. v. Howard (In re Howard), No. 2:10CV962, 2011 WL 578777 (W.D. Pa. Feb. 9, 2011).

147While the Supreme Court currently endorses the plain meaning approach, the results under this analysis are inconsistent. Logically, any case of statutory interpretation that goes to the Supreme Court due to a split in meaning among the circuits suggests that the meaning is unclear. For example, in Hamilton v. Lanning, the Court used the plain meaning approach to interpret the term “projected” in BAPCPA’s projected disposable income test. Hamilton, 130 S. Ct. at 2471–72. They concluded that “projected” implied that a bankruptcy court has discretion to make appropriate adjustments to income where significant changes in a debtor’s financial circumstances are virtually certain. Id. at 2472. However, the fact that lower circuit courts reached the opposite conclusion after applying the plain meaning approach when interpreting this term suggests the test is unreliable. Id. at 2473.

148See, e.g., Thomas G. Kelch, An Apology for Plain-Meaning Interpretation of the Bankruptcy Code, 10 Bankr. Dev. J. 289, 301–09 (1994); Kenneth N. Klee & Frank A. Merola, Ignoring Congressional Intent: Eight Years of Judicial Legislation, 62 Am. Bankr. L.J. 1, 1–2 (1988); Robert M. Lawless, Legisprudence Through a Bankruptcy Lens: A Study in the Supreme Court’s Bankruptcy Cases, 47 Syracuse L. Rev. 1, 6, 109–10 (1996); Bruce A. Markell, Conspiracy, Literalism, and Ennui at the Supreme Court: An Examination of Bankruptcy Cases Decided from 1990 to 1993, 41 Fed. B. News & J. 174, 181–82 (1994); Charles Jordan Tabb & Robert M. Lawless, Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rehnquist Court, 42 Syracuse L. Rev. 823, 879–85 (1991); Charles Jordan Tabb, The Bankruptcy Reform Act in the Supreme Court, 49 U. Pitt. L. Rev. 477, 570–75 (1988).

149See Klee & Merola, supra note 148, at 2.

150Ron Pair, 489 U.S. at 242. In Ron Pair, the court determined that the plain meaning of § 506(b) was clear based on the placement of the commas in the statute. Id. at 241–42. “[T]hat the Congress should or could contemplate . . . a decisive change in law [regarding this statute according to punctuation is] an entirely unrealistic view of the precision of . . . congressional drafting . . . .” Daniel J. Bussel, Textualism’s Failures: A Study of Overruled Bankruptcy Decisions, 53 Vand. L. Rev. 887, 897 (2000).

151See Bussel, supra note 150, at 896–97.

152Ron Pair, 489 U.S. at 242–43.

153Kelly v. Robinson, 479 U.S. 36, 43 (1986) (quoting Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222 (1986)); see also Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991) (“[C]ommon sense suggests that inquiry benefits from reviewing additional information rather than ignoring it.”); Bank of Marin v. England, 385 U.S. 99, 103 (1966) (“[W]e do not read these statutory words with the ease of a computer. There is an overriding consideration that equitable principles govern the exercise of bankruptcy jurisdiction.”); United States v. Am. Trucking Ass’ns, 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use, however clear the words may appear on ‘superficial examination.’” (footnotes omitted)).

154See Hamilton v. Lanning, 130 S. Ct. 2464, 2471–72 (2010).

155Id. at 2472. Furthermore, in interpreting the meaning of the word “projected,” the Court in Hamilton considered what projections were used in business law, politics, and even sports. Id. at 2471–72.

156Klee, supra note 126, at 17 (“Even when the language of the statute is clear, courts must consider the legislative history and issues of policy and previous practice to determine congressional intent.”). Generally, when the Code does not supply a definition for a particular statutory term, the court “turn[s] to the legislative history in an attempt to glean congressional intent.” La. Dep’t of Revenue & Taxation v. Lewis (In re Lewis), 199 F.3d 249, 251–52 (5th Cir. 2000).

157See Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 725 (2011) (considering “BAPCPA’s purpose to strengthen [its] reading of the term ‘applicable’”).

158Mohamad v. Rajoub, 634 F.3d 604, 607 (D.C. Cir. 2011), aff’d sub nom. Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012); cf. In re North, 12 F.3d 252, 254–55 (D.C. Cir. 1994) (per curiam) (finding that “individual” as used in the Ethics in Government Act means a natural person based on the term’s ordinary meaning).

1591 U.S.C. § 1 (2006).

160Bowoto v. Chevron Corp., 621 F.3d 1116, 1126–27 (9th Cir. 2010); see also Mohamad, 634 F.3d at 607. The Dictionary Act defines “person” to include “corporations, companies, associations, firms, partnerships, societies, . . . as well as individuals.” 1 U.S.C. § 1 (emphasis added).

161Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 563 (1990) (citing Kelly v. Robinson, 479 U.S. 36, 47 (1986)), superseded by statute, Criminal Victims Protection Act of 1990, Pub. L. No. 101-581, 104 Stat. 2865, as recognized in Johnson v. Home State Bank, 501 U.S. 78 (1991); accord, e.g., Cohen v. De La Cruz, 523 U.S. 213, 221 (1998); United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 221 (1996); United States v. Ron Pair Enters., Inc., 489 U.S. 235, 244–45 (1989); United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 380 (1988).

162See Hamilton v. Lanning, 130 S. Ct. 2464, 2472–74 (2010).

163Id. at 2474.

164Id.

165See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, §§ 305(1)(B), 441(1)(A), 119 Stat. 23, 79, 114 (codified as amended at 11 U.S.C. § 362(k)(1)).

166See generally Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, 124 Stat. 3557.

167See supra text accompanying notes 162–64.

168S. Rep. No. 95-989, at 3 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5789.

169See Toibb v. Radloff, 501 U.S. 157, 162 (1991) (citing S. Rep. No. 95-989, at 3, reprinted in 1978 U.S.C.C.A.N. at 5789).

170Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir.1986) (corporate debtor).

171Id. (“[I]t seems unlikely that Congress meant to give a remedy only to individual debtors against those who willfully violate the automatic stay provisions of the Code as opposed to debtors which are corporations or other like entities. Such a narrow construction of the term would defeat much of the purpose of the section . . . .”).

172See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 (2d Cir. 1990).

173Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352.

174“The term ‘consumer debt’ means debt incurred by an individual primarily for a personal, family, or household purpose.” 11 U.S.C. § 101(8) (2006). Non-natural persons would have no debt for a “personal, family, or household purpose.” See id.

175In re Chateaugay Corp., 920 F.2d at 186.

176See, e.g., id.

177See id.

178In re Abacus Broad. Corp., 150 B.R. 925, 928 (Bankr. W.D. Tex. 1993). The Court has recognized that the rehabilitation of debtors is an overarching policy that animates the Code. See, e.g., Cohen v. De La Cruz, 523 U.S. 213, 217 (1998); Grogan v. Garner, 498 U.S. 279, 286–87 (1991); Union Bank v. Wolas, 502 U.S. 151, 160–62 (1991); Local Loan Co. v. Hunt, 292 U.S. 234, 244–45 (1934).

179In re Abacus Broad. Corp., 150 B.R. at 928 (citing In re Chateaugay Corp., 920 F.2d at 186); see also id. (“Similar protections were evidently not deemed necessary for presumably more sophisticated corporations capable of fending for themselves.”).

18011 U.S.C. § 541(a) (2006).

181Id. § 323(a).

182Id. § 321(a). At first glance, § 321 could indicate the either/or scenario that, if a trustee is not a corporation, the trustee must be considered an individual who would be entitled to recover under § 362(k). See Eric Howe, Note, Benefiting the Bankruptcy System Through Deterrence: Allowing a Chapter 7 Trustee to Recover Punitive Damages for a Violation of the Automatic Stay Under § 362(h), 90 Iowa L. Rev. 1939, 1961–62 (2005). However, upon closer inspection, this provision merely comments on the status of that person (corporation or individual) prior to becoming a trustee and does not preclude the trustee from being an entity completely distinct from an individual or a corporation.

183See 11 U.S.C. § 323(a).

184Havelock v. Taxel (In re Pace), 159 B.R. 890, 905 (B.A.P. 9th Cir. 1993) (Jellen, J., concurring), aff’d in part, vacated in part, 67 F.3d 187 (9th Cir. 1995).

185See Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 175 B.R. 288, 291–92 (Bankr. E.D. Mo. 1994) (holding that the trustee was not entitled to recover damages under § 362(h) because he was acting as the representative of a corporate entity’s bankruptcy estate), rev’d, 108 F.3d 881 (8th Cir. 1997).

186See In re Pace, 159 B.R. at 905–06 (Jellen, J., concurring) (discussing the distinction between the debtor and the representative of the estate).

187Id. at 906. This point assumes that corporate debtors are not individuals under § 362(k). This Comment will not address this tangential issue. For a more detailed discussion on this issue, see generally Swarthout, supra note 99.

188In re Pace, 159 B.R. at 906 (Jellen, J., concurring).

189Id. at 905.

190See id.

191 Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (finding that any damage is incurred by a “thing”—the bankruptcy estate—and not by a natural person).

192In re Pace, 159 B.R. at 906 (Jellen, J., concurring) (“[I]t [is] apparent that the term ‘individual’ was intended to refer to a natural person injured by a stay relief violation and not to the representative of that person.”).

193Id.

194Patterson v. Shumate, 504 U.S. 753, 758 n.2 (1992) (quoting Morrison-Knudsen Constr. Co. v. Dir., Office of Workers’ Comp. Programs, U.S. Dep’t of Labor, 461 U.S. 624, 633 (1983)).

195See In re Pace, 159 B.R. at 906 (Jellen, J., concurring).

196These are trusts other than business trusts that qualify as corporations under § 101(9).

197See, e.g., Goerg v. Parungao (In re Goerg), 844 F.2d 1562, 1566 (11th Cir. 1988) (decedents’ estates ineligible for relief under the Code); In re BKC Realty Trust, 125 B.R. 65, 68 (Bankr. D.N.H. 1991) (family trust ineligible for relief).

19811 U.S.C. § 109(a) (2006) (emphasis added).

199Id. § 101(41).

200H.R. Rep. No. 95-595, at 313 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6270 (“The definition [of ‘person’] does not include an estate or a trust, which are included only in the definition of ‘entity’ in proposed 11 U.S.C. [sic] 101(14) [now, § 101(15)].”).

201See Havelock v. Taxel (In re Pace), 159 B.R. 890, 906 (B.A.P. 9th Cir. 1993) (Jellen, J., concurring), aff’d in part, vacated in part, 67 F.3d 187 (9th Cir. 1995). This case also discusses that, “[b]y the same construction, trusts and decedents’ estates represented by an individual fiduciary would not only be eligible for relief under the Bankruptcy Code, they would also qualify to claim exemptions pursuant to section 522(b)(1), file Chapter 13 cases pursuant to section 109(e), and obtain Chapter 7 discharges pursuant to section 727(a), rights that are available only to ‘individuals.’” Id.

202See Martino v. First Nat’l Bank in Harvey (In re Garofalo’s Finer Foods, Inc.), 164 B.R. 955, 972 (Bankr. N.D. Ill. 1994), aff’d in part, rev’d in part, 186 B.R. 414 (N.D. Ill. 1995).

20311 U.S.C. § 362(k).

204See id.

205See In re Garofalo’s Finer Foods, 164 B.R. at 972–73.

206Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995).

207See id. at 192–93.

208See id.

209Id. at 193.

210 See, e.g., id.

211Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995).

212In re Pace, 67 F.3d at 193 (asserting that, while In re Garofalo’s Finer Foods allows a trustee to fit the definition of “individual,” loss in form of attorneys’ fees and costs “is actually incurred by a thing, viz., the bankruptcy estate, and not by the trustee as a natural person”). Regardless of whether the harm is incurred by the trustee as a representative of an estate or as an individual, recovering under § 362(k) is not necessary to rectify any loss incurred because attorneys’ fees are an available form of relief under § 105. See 11 U.S.C. § 105(a) (2006).

213Lovett v. Honeywell, Inc., 930 F.2d 625, 629 (8th Cir. 1991).

214Peoples Fin. & Thrift Co. v. Comm’r, 184 F.2d 836, 837 (5th Cir. 1950); see also Estate of Wesson v. United States, 843 F. Supp. 1119, 1123 (S.D. Miss. 1994) (“[T]he beneficiaries cannot seriously contend that they received the punitive-damages award ‘on account of personal injuries’ as required under section 104(a)(2) for purposes of exclusion from taxation.”), aff’d sub nom. Wesson v. United States, 48 F.3d 894 (5th Cir. 1995).

215See Howe, supra note 182, at 1955.

216See D. Casey Kobi, Note, Staying True to Purpose: Including Corporate Debtors Under § 362(h) of the Federal Bankruptcy Code, 76 Ind. L.J. 243, 267 (2001) (“The purpose of § 362(h) will be destroyed if creditors can violate the automatic stay without suffering repercussions under the Bankruptcy Code.”).

217H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97.

218See Howe, supra note 182, at 1954–55.

219See, e.g., Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986); Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 438–39 (N.D. Ill. 1995).

220Better Homes of Va., 804 F.2d at 292.

221The only other circuit to hold that a non-natural person is an individual is the Third Circuit. See Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990) (corporate debtor). The Second Circuit, Eighth Circuit, and Ninth Circuit have held that non-natural persons, specifically trustees or corporations, are not individuals under § 362(k). See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186–87 (2d Cir. 1990) (corporate debtor); Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884 (8th Cir. 1997) (corporate debtor is not an individual); Cal. Emp’t Dev. Dep’t v. Taxel (In re Del Mission Ltd.), 98 F.3d 1147, 1152 (9th Cir. 1996) (trustee is not an individual); Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (trustee is not an individual); Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 619 (9th Cir. 1993) (corporate debtor is not an individual). The First, Fifth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuit Courts have not ruled on this issue yet.

222See Better Homes of Va., 804 F.2d at 292.

223Collier, supra note 3, ¶ 362.12[2].

224See 11 U.S.C. § 105(a) (2006).

225See, e.g., Jove Eng’g, Inc. v. IRS (In re Jove Eng’g, Inc.), 92 F.3d 1539, 1546 (11th Cir. 1996); In re Xavier’s of Beville, Inc., 172 B.R. 667, 671–72 (Bankr. M.D. Fla. 1994); Fry v. Today’s Homes, Inc. (In re Fry), 122 B.R. 427, 430 (Bankr. N.D. Okla. 1990).

226See In re Pace, 67 F.3d at 193; cf. Spookyworld, Inc. v. Town of Berlin (In re Spookyworld, Inc.), 346 F.3d 1, 8 (1st Cir. 2003); United States v. Arkison (In re Cascade Rds., Inc.), 34 F.3d 756, 767 (9th Cir. 1994); In re Goodman, 991 F.2d at 620 (9th Cir. 1993) (corporation can seek damages under contempt theory); In re Chateaugay Corp., 920 F.2d at 186. But see In re Daniels, 206 B.R. 444, 446–47 (Bankr. E.D. Mich. 1997) (holding that it is improper for an individual to seek relief via a motion for contempt, and that sanctions should be pursued through § 362(k)).

227See 11 U.S.C. § 105(a).

228See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-353, § 304, 98 Stat. 333, 352.

229Collier, supra note 3, ¶ 362.12[2]. Under the Bankruptcy Act of 1898, a creditor would be held in contempt for willfully violating the Bankruptcy Rules if he knew that the debtor had filed for bankruptcy and still brought an action against the debtor without first securing the bankruptcy court’s permission. Fid. Mortg. Investors v. Camelia Builders, Inc. (In re Fid. Mortg. Investors), 550 F.2d 47, 51–52 (2d Cir. 1976).

230See Collier, supra note 3, ¶ 362.12[3].

231See 130 Cong. Rec. 6,504 (1984) (statement of Rep. Rodino) (emphasis added).

232See, e.g., Wagner v. Ivory (In re Wagner), 74 B.R. 898, 903 (Bankr. E.D. Pa. 1987); Aponte v. Aungst (In re Aponte), 82 B.R. 738, 742 (Bankr. E.D. Pa. 1988); Colon v. Hart (In re Colon), 114 B.R. 890, 898 (Bankr. E.D. Pa. 1990) (“Congress intended, prior to the enactment of § 362(h), that enforcement of the automatic stay could be by civil contempt. The passage of section 362(h) was not intended to preclude the use of civil contempt.” (citation omitted)), appeal dismissed sub nom. Szostek v. Hart, 123 B.R. 719 (E.D. Pa. 1991), aff’d in part, appeal dismissed in part sub nom. Colon v. Hart (In re Colon), 941 F.2d 242 (3d Cir. 1991).

233Compare 11 U.S.C. § 362(k)(1) (2006) (offering compensatory damages, attorneys’ fees, and punitive damages), with id. § 105(a) (offering only compensatory damages and, in some cases, attorney’s fees).

234Conversely, some courts have held that a finding of civil contempt is not a prerequisite to the imposition of sanctions under § 362(h). See Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 293 (4th Cir. 1986).

235See Hamilton v. Lanning, 130 S. Ct. 2464, 2474 (2010) (“[W]e are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law.” (quoting Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998)) (internal quotation marks omitted)).

236See supra text accompanying notes 85–94.

237Collier, supra note 3, ¶ 362.12[3] & n.39.

238Id. ¶ 362.12.

239Martino v. First Nat’l Bank of Harvey (In re Garofalo’s Finer Foods, Inc.), 186 B.R. 414, 439 (N.D. Ill. 1995).

240See 11 U.S.C. § 704(a)(1) (2006).

241In re Garofalo’s Finer Foods, 186 B.R. at 439.

242See Surette, supra note 40, § 6[a] (listing cases in which attorney’s fees have been awarded).

243Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (“It is clear that, even though a trustee does not qualify as an ‘individual’ for purposes of section 362(h), a trustee can recover damages in the form of costs and attorney’s fees under section 105(a) as a sanction for ordinary civil contempt.” (emphasis added)).

244Compare 11 U.S.C. § 362(k)(1), with Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1193 (9th Cir. 2003).

245A. Mitchell Polinsky & Steven Shavell, Punitive Damages: An Economic Analysis, 111 Harv. L. Rev. 869, 870 (1998); see Steve P. Calandrillo, Penalizing Punitive Damages: Why the Supreme Court Needs a Lesson in Law and Economics, 78 Geo. Wash. L. Rev. 774, 781–93 (2010) (surveying modern Supreme Court case law to illustrate how punitive damages have evolved and been limited over the years). In fact, some scholars have gone so far as to argue that punitive damages have no deterrent or punitive effect. See generally W. Kip Viscusi, Why There is No Defense of Punitive Damages, 87 Geo. L.J. 381 (1998).

246See generally Calandrillo, supra note 245.

247See Dorsey D. Ellis, Jr., Fairness and Efficiency in the Law of Punitive Damages, 56 S. Cal. L. Rev. 1, 3 (1982).

248Exxon Shipping Co. v. Baker, 554 U.S. 471, 492 (2008).

249See, e.g., Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008); In re M & J Feed Mill, Inc., 112 B.R. 985, 990 (Bankr. W.D. Mo. 1990); Mercer v. D.E.F., Inc. (In re Mercer), 48 B.R. 562, 565 (Bankr. D. Minn. 1985). The Supreme Court has also explained that punitive damages are for the purposes of deterrence and punishment. Cooper Indus., Inc. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001); Gertz v. Robert Welch, Inc., 418 U.S. 323, 350 (1974).

250See Calandrillo, supra note 245, at 818–19.

251See id.

252Id. at 793.

253Gebbia-Pinetti, supra note 41, at 177–78.

254See Cooper Indus., 532 U.S. at 432; Gertz, 418 U.S. at 350.

255See Quiñones Lopez v. Ford Motor Credit Corp. (In re Quiñones Lopez), 319 B.R. 58, 60 (Bankr. D.P.R. 2004).

256Jennifer K. Robbennolt, Determining Punitive Damages: Empirical Insights and Implications for Reform, 50 Buff. L. Rev. 103, 111–12 (2002). The degree to which punitive damages actually deter undesirable behavior is beyond the scope of this Comment. For a discussion of psychological factors that may influence the deterrent effects of tort law, see generally Daniel W. Shuman, The Psychology of Deterrence in Tort Law, 42 U. Kan. L. Rev. 115 (1993).

257Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 908 (Bankr. N.D. Ind. 2008) (“An award of punitive damages [for violation of the automatic stay] is part a deterrent, i.e., to cause a change in the creditor’s behavior, and in this context the prospect of such change is relevant to the amount of punitive damages to be awarded.”); In re Pawlowicz, 337 B.R. 640, 648 (Bankr. N.D. Ohio 2005) (explaining that “the primary purpose of an award of punitive damages becomes that which is sufficient to cause a change in the creditor’s behavior”).

258See Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008) (explaining that the purpose of the automatic stay is to deter the creditor and others like him from violating the automatic stay).

259See Polinsky & Shavell, supra note 245, at 873–75.

260Id. at 874 (emphasis removed).

261See id. at 895–96.

262Id. at 888; see also Calandrillo, supra note 245, at 800 (2010) (discussing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 563 (1996), and concluding that punitive damages are appropriate because the company was unlikely to be sued by the victims who were unlikely to notice the wear and tear on their cars).

263Polinsky & Shavell, supra note 245, at 888.

264Id.

265Calandrillo, supra note 245, at 800; see Mathias v. Accor Econ. Lodging, Inc., 347 F.3d 672, 676–77 (7th Cir. 2003) (arguing that substantial punitive damages were necessary for adequate deterrence because the harmed individuals suffered only minor injuries and so would rationally choose not to sue and bear the costs of litigation).

266See supra text accompanying note 179.

267See Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 186 n.1 (2d Cir. 1990) (quoting Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990)).

268Cf. In re Abacus Broad. Corp., 150 B.R. 925, 928 (Bankr. W.D. Tex. 1993). Congress may have viewed trustees and other entities, such as corporations, as “more likely to already know their rights under the bankruptcy law” because they are repeat players in the system. Id.; see also In re Chateaugay Corp., 920 F.2d at 186.

269See In re Abacus Broad. Corp., 150 B.R. at 928 (“Congress may have viewed natural persons as particularly vulnerable to violations of the automatic stay” and drafted § 362(k) to provide a “precise, easily applied, private cause of action to vindicate [their] rights, consistent with the consumer protection goals of the statute.”).

270See id.; see also Calandrillo, supra note 245, at 800; Polinsky & Shavell, supra note 245, at 888.

271See 11 U.S.C. § 704(a)(2) (2006) (detailing a trustee’s duties to maintain comprehensive records of the property of the estate); Fed. R. Bankr. P. 2015.

272See Collier, supra note 3, ¶ 323.03. Attorneys’ fees are not always awarded. See, e.g., Thornburg v. Lynch (In re Thornburg), 277 B.R. 719, 731 (Bankr. E.D. Tex. 2002); Chase Lumber & Fuel Co. v. Koch (In re Koch), 197 B.R. 654, 660 (Bankr. W.D. Wis. 1996).

273See 11 U.S.C. § 704(a).

274See Calandrillo, supra note 245, at 799; Polinsky & Shavell, supra note 245, at 890.

275“Specifically, punitive damages should equal the harm multiplied by . . . the ratio of the injurer’s chance of escaping liability to his chance of being found liable.” Polinsky & Shavell, supra note 245, at 890.

276Calandrillo, supra note 245, at 799.

277See id. at 802–03 (2010).

278See id. at 803.

279See id.

280See Ellis Jr., supra note 247, at 26–31.

281See, e.g., Bank of Bos. v. Baker (In re Baker), 140 B.R. 88, 89–90 (D. Vt. 1992).

2826 Collier, supra note 3, ¶ 704.02[1].

283In re Baker, 140 B.R. at 89–90 (“Although the Bankruptcy Court indicated that other people may have been inconvenienced by debtor’s lack of an automobile, there was no evidence as to a rental car, or payment of expenses to people who transported debtor.”).

284Id.

285Crysen/Montenay Energy Co. v. Esselen Assocs., Inc. (In re Crysen/Montenay Energy Co.), 902 F.2d 1098, 1105 (2d Cir. 1990).

286See, e.g., Frankel v. Strayer (In re Frankel), 391 B.R. 266, 275 (Bankr. M.D. Pa. 2008); In re M & J Feed Mill, Inc., 112 B.R. 985, 990 (Bankr. W.D. Mo. 1990); Mercer v. D.E.F., Inc. (In re Mercer), 48 B.R. 562, 565 (Bankr. D. Minn. 1985).

287See Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 Am. U. L. Rev. 1393, 1432–33 (1993).

288Dan Markel, Retributive Damages: A Theory of Punitive Damages as Intermediate Sanction, 94 Cornell L. Rev. 239, 242 (2009).

289Galanter & Luban, supra note 287, at 1432–34.

290Id. at 1432.

291Id.

292Id. at 1433.

293Polinsky & Shavell, supra note 245, at 948.

294Id.

295See Markel, supra note 288, at 251 (quoting State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)) (internal quotation marks omitted).

296Galmore v. Dykstra (In re Galmore), 390 B.R. 901, 908 (Bankr. N.D. Ind. 2008). Courts have also mentioned a creditor’s ability to pay damages, the level of a creditor’s sophistication, and any provocation by the debtor as factors to be considered. See, e.g., id. However, these factors are less relevant to assessing punitive damages for retributive reasons and will not be examined in this Comment.

297Gore, 517 U.S. at 575 (requiring a court to examine “the degree of reprehensibility of the defendant’s conduct” because it was “[p]erhaps the most important indicium of the reasonableness of a punitive damages award”).

298Id. at 576.

299Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 826 (B.A.P. 1st Cir. 2002); accord Progressive Motors, Inc. v. Frazier, 220 B.R. 476, 477–78 (D. Utah 1998) (repossession of a car); Bishop v. U.S. Bank/Firstar Bank, N.A. (In re Bishop), 296 B.R. 890, 898–99 (Bankr. S.D. Ga. 2003) (repossession of a truck).

300See, e.g., Frazier, 220 B.R. at 477 (repossession of a car); In re Bishop, 296 B.R. at 892–94 (repossession of a truck).

301See 11 U.S.C. § 704(a)(1) (2006) (explaining that, in a chapter 7 case, the role of the trustee is to liquidate the debtor’s assets and distribute the proceeds to creditors in an expeditious manner).

302Polinsky & Shavell, supra note 245, at 942; see Gary T. Schwartz, Deterrence and Punishment in the Common Law of Punitive Damages: A Comment, 56 S. Cal. L. Rev. 133, 139–40 (1982).

303See Exxon Shipping Co. v. Baker, 554 U.S. 471, 491–92 (2008); Calandrillo, supra note 245, at 781 (listing “the essential functions of punitive damages: punishment, deterrence, and supplemental compensation”).

304Markel, supra note 288, at 249.

305See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 576–77 (1996) (listing the debtor’s financial vulnerability as a factor for determining the defendant’s degree of reprehensibility).

306Markel, supra note 288, at 250.

307Id.

308See Metro. Life Ins. Co. v. Alside Supply Ctr. of Knoxville (In re Clemmer), 178 B.R. 160, 162–63 (Bankr. E.D. Tenn. 1995); In re Prairie Trunk Ry., 112 B.R. 924, 929–31 (Bankr. N.D. Ill. 1990). See generally Surette, supra note 40.

30911 U.S.C. § 1107(a) (2006).

310S. Rep. No. 95-989, at 116 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5902. 

311See, e.g., Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 184–87 (2d Cir. 1990). See generally Swarthout, supra note 99.

312 In re Chateaugay Corp., 920 F.2d at 184–85. See generally Swarthout, supra note 99.

313See Cuffee v. Atl. Bus. & Cmty. Dev. Corp. (In re Atl. Bus. & Cmty. Corp.), 901 F.2d 325, 329 (3d Cir. 1990); Budget Serv. Co. v. Better Homes of Va., Inc., 804 F.2d 289, 292 (4th Cir. 1986).

314H.R. Rep. No. 95-595, at 340 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6296–97 (“The automatic stay is one of the fundamental debtor protections provided by the bankruptcy laws. It gives the debtor a breathing spell from his creditors. It stops all collection efforts, all harassment, and all foreclosure actions.”).

315See 11 U.S.C. § 362(k) (2006).

316Compare Havelock v. Taxel (In re Pace), 67 F.3d 187, 193 (9th Cir. 1995) (trustee is not an individual), In re Chateaugay Corp., 920 F.2d at 184–85 (corporate debtor is not an individual), and Sosne v. Reinert & Duree, P.C. (In re Just Brakes Corporate Sys., Inc.), 108 F.3d 881, 884–85 (8th Cir. 1997) (corporate debtor is not an individual), with In re Atl. Bus. & Cmty. Corp., 901 F.2d at 329 (corporate debtor is an individual).

317See, e.g., Knupfer v. Lindblade (In re Dyer), 322 F.3d 1178, 1189 (9th Cir. 2003); Barstow v. Ingaldson Maasen & Fitzgerald (In re Avery), Ch. 7 Case No. A06-00455-DMD, Adv. No. 85-1190, 2011 WL 5330789, at *3 (Bankr. D. Alaska Nov. 4, 2011); In re Sayeh, 445 B.R. 19, 27 (Bankr. D. Mass. 2011); Gecker v. Gierczyk (In re Glenn), 379 B.R. 760, 762–63 (Bankr. N.D. Ill. 2007).

318See In re Pace, 67 F.3d at 193.

319See, e.g., Bussel, supra note 150, at 897; Kelch, supra note 148, at 301–09; Klee & Merola, supra note 148, at 1–2; Lawless, supra note 148, at 109–10; Markell, supra note 148, at 181–82; Tabb & Lawless, supra note 148, at 879–85; Tabb, supra note 148, at 570–75.

320See supra text accompanying notes 170–71.

321United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)).

322Mar. Asbestosis Legal Clinic v. LTV Steel Co. (In re Chateaugay Corp.), 920 F.2d 183, 187 (2d Cir. 1990) (citing Corwin Consultants, Inc. v. Interpublic Grp. of Cos., 512 F.2d 605, 611 (2d Cir. 1975)).

Executive Marketing Editor, Emory Bankruptcy Developments Journal; J.D. Candidate, Emory University School of Law (2013); B.A., University of Virginia (2008). I would like to thank the following, without whom this Comment would not have been possible: Judge Paul Bonapfel, who, despite his busy schedule, spent countless hours helping me develop a topic, navigate the law and edit every draft along the way; Professor Joanna Shepherd-Bailey, for her much needed expertise and support; Dr. Jacob and Laurie Teitelbaum, for their fresh insight on an unfamiliar topic; Thomas Hsieh and his editing team, for helping me polish the final product; and my family and friends, especially Dan Payne, for providing unwavering support and maintaining their patience (even when I was losing my own) during this process.