In my experience, creditors have a difficult time understanding that in order to willfully violate the automatic stay, it is not necessary that the creditor intended to violate the stay or intended damage to the debtor. All that is necessary is to show that the creditor knew of the bankruptcy.
“A willful violation of the automatic stay does not require a specific intent to violate the automatic stay. The standard for willful violation of the automatic stay under § 362(h) (now 362k) is met if there is knowledge of the stay and the defendant intended the actions which constitute the violation.” In re Smith, 296 B.R. at 55, citing Fleet Mortgage Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir. 1999).
The damages recoverable under 362(k) are actual damages, which includes attorneys’ fees, and punitive damages. Creditors must be mindful that while the actual damages to a debtor may be minimal, attorneys’ fees will most assuredly not be minimal.
On a related note, there is some dispute as to whether punitive damages may be awarded to a corporate debtor for a 362(k) violation. Since 362(k) specifically uses the term “individual,” some courts, including the Eleventh Circuit, have held that punitive damages for 362(k) violations are not recoverable by a corporate debtor. See, Jove Eng.’g., Inc. v. IRS, 92 F.3d 1539 (11th Cir. 1996). In an interesting twist, however, Judge Kimball in the Bankruptcy Court for the Southern District of Florida has held that Jove does not preclude a bankruptcy court from awarding punitive damages pursuant to its inherent contempt powers under 11 U.S.C. § 105. In re WVF Acquisition, LLC, — B.R.—-, 2009 WL 4281487, Bkrtcy. S.D. Fla. 2009.