the auctioneer without recourse and without reservation constitutes evidence of complete
disposition by Paxon. Plaintiff failed to controvert this evidence.
Therefore, the Court concludes from the evidence presented that Paxon
completely disposed of the vehicle before Debtors filed their second petition and gained
protection of the automatic stay.
Because Debtors failed to satisfy the first element of a § 362(h) sanctions claim,
the Court need not inquire as to the second element - whether such a violation was
“willful.” Paxon had no duty to refrain from or to prevent disposition of the car because
the petition had not been filed until after Paxon had completely disposed of the car.
DEBTORS’ CLAIM FOR DAMAGES UNDER FLORIDA STATUTES § 679.504
Debtors argue that Paxon’s rapid foreclosure on the vehicle in general, and
Paxon’s failure to notify Debtors of the sale in particular, violate Florida Statutes §
679.504. Such claims are best heard in the context of an adversary hearing rather than in
the midst of a non-adversary automatic stay dispute. See Koresko v. Chase Manhattan
Fin. Services, Inc. (In re Koresko), 91 B.R. 689 (Bankr. E.D. Penn. 1988). Under Florida
law, suits for violation of § 679.504 are enforced against any deficiency judgment the
creditor may be entitled to and are not the basis for bankruptcy remedies such as
sanctions for violation of the automatic stay. See BancFlorida v. De Pasquale (In re De
Pasquale), 166 B.R. 663 (Bankr. N.D. Ill. 1994) (Illinois bankruptcy court interpreting
Florida § 679.504 in context of objection to discharge).
The Court does not make any judgments as to the reasonability of Paxon’s
behavior by refusing to address this claim at present. Paxon’s conduct since Debtors’
first bankruptcy does gives the Court pause. One wonders how endangered the consumer