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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10919
________________________
D.C. Docket No. 1:10-cv-00736-WCO
KENNETH LODGE,
DELORES LODGE,
Plaintiffs-Appellants,
versus
KONDAUR CAPITAL CORPORATION,
MCCALLA RAYMER, LLC/MCCALLA RAYMER, ESQ.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 8, 2014)
Before HULL and BLACK, Circuit Judges, and WALTER, * District Judge.
HULL, Circuit Judge:
*
Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
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Plaintiffs-appellants Kenneth and Delores Lodge sued defendants-appellees
McCalla Raymer, LLC (“McCalla”) and Kondaur Capital Corporation
(“Kondaur”), claiming that they violated (1) the automatic stay in plaintiff Kenneth
Lodge’s bankruptcy, under 11 U.S.C. § 362, and (2) the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. The plaintiffs appeal the
district court’s grant of summary judgment in favor of the defendants. After
careful review and with the benefit of oral argument, we affirm.
I. FACTUAL BACKGROUND
A. Lodges’ Mortgage in 2000
In 2000, the Lodges obtained a $156,800 loan from First Franklin Financial
Corporation (“First Franklin”). They signed a promissory note and executed a
security deed giving First Franklin a mortgage on their property. The security deed
gave First Franklin the right to foreclose on the property as a means of enforcing
the Lodges’ obligation to repay the loan.
B. Plaintiff Kenneth Lodge’s Bankruptcy in 2005
Five years later, on September 15, 2005, plaintiff Kenneth Lodge filed a
Chapter 13 bankruptcy petition. Pursuant to 11 U.S.C. § 362, the filing of the
petition automatically stayed any act to collect the loan and to enforce any lien,
such as First Franklin’s mortgage. 11 U.S.C. § 362(a)(4), (6).
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On December 18, 2008, defendant McCalla filed, on behalf of First
Franklin’s loan servicer, Home Loan Services, a motion for relief from the
bankruptcy stay. In the motion, McCalla asserted that Kenneth Lodge had
defaulted on the promissory note and requested that the stay be lifted so that First
Franklin could exercise its rights under the security deed. The bankruptcy court
never ruled on this motion.
Also on December 18, 2008, First Franklin assigned its interest in the
promissory note and security deed to defendant Kondaur. Later on in 2009,
defendant McCalla, on behalf of defendant Kondaur, filed an amendment to the
December 18, 2008 motion for relief from the bankruptcy stay, changing the
movant’s name from Home Loan Services to Kondaur, the new owner of the
security deed. The bankruptcy court never ruled on this amended motion either.
C. March 12, 2009 Notice of Sale
In January 2009, defendant Kondaur submitted a foreclosure referral
regarding the Lodges’ property to defendant McCalla. Then McCalla, on behalf of
Kondaur, submitted a “Notice of Sale” for publication in the Rockdale Citizen, a
local newspaper.
The Notice of Sale stated that Kondaur sought to foreclose on the Lodges’
property to recover the amount owed under the promissory note. The foreclosure
sale was to take place on the first Tuesday of April 2009, that is, April 7, 2009.
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The Notice of Sale was published on March 12, 2009. That same day,
McCalla requested that the local newspaper cancel the publication of the Notice of
Sale. So, the March 12, 2009 Notice of Sale was published only once and only for
one day total. The Lodges did not see the Notice of Sale at that time.
Rather, at some unspecified time after March 12, 2009, the Lodges received
letters from law firms informing them that they were “about to be foreclosed.” The
Lodges then discovered that the Notice of Sale had been published in the Rockdale
Citizen. A few weeks later, on April 7, 2009, the date announced in the Notice of
Sale, the Lodges realized that the foreclosure sale had been canceled, and it never
occurred. 1
On January 28, 2010, Kenneth Lodge completed his Chapter 13 plan, and his
debts, including the loan here, were discharged. Given the bankruptcy court never
ruled on the initial motion or the amended motion for relief from the bankruptcy
stay, the stay remained in effect throughout Kenneth Lodge’s bankruptcy
proceedings from 2005 to 2010.
II. PROCEDURAL BACKGROUND
A. Lodges’ Lawsuit filed March 12, 2010
After Kenneth Lodge received his Chapter 13 discharge, the Lodges filed a
two-count complaint against defendants McCalla and Kondaur. Count 1 claimed
1
At oral argument, counsel for the Lodges conceded that, on April 7, 2009, the Lodges
realized that the foreclosure sale would not occur.
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that McCalla and Kondaur violated the automatic bankruptcy stay by causing the
local newspaper to publish the March 12, 2009 Notice of Sale. The Lodges sought
damages under 11 U.S.C. § 362(k), which provides that an “individual injured by
any willful violation of a stay provided [by § 362] shall recover actual damages . . .
.” 11 U.S.C. § 362(k). 2
Count 2 claimed that the defendants’ publication of the Notice of Sale also
violated the FDCPA, 15 U.S.C. § 1692f(6)(A) and (C). 3
The district court addressed the Lodges’ two claims separately, at different
stages of the lawsuit, as outlined below.
B. Summary Judgment Motions on Automatic Stay Claim (Count 1)
The Lodges moved for partial summary judgment on their automatic stay
claim in Count 1. The defendants filed a summary judgment motion on that same
claim. The defendants argued that the Lodges had not shown any injury caused by
the defendants’ violation of the stay and therefore could not recover “actual
damages” under § 362(k).
The Lodges responded that the defendants’ violation of the automatic stay
was, standing alone, an injury for which the Lodges could recover “actual
2
The Lodges cited 11 U.S.C. § 362(h) in their complaint. Section 362(h) was recodified
into § 362(k) per the Bankruptcy Abuse Prevention Consumer Protection Act of 2005, Pub. L.
No. 109-8, § 305(1)(B), 119 Stat. 23. Accordingly, we will refer to the current section, § 362(k),
as did the district court.
3
In February 2011, the Lodges amended Count 2 of their initial complaint, and it is Count
2 of the amended complaint that is described above and at issue on appeal.
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damages” under § 362(k). The Lodges also asserted that they could recover under
§ 362(k) for their emotional distress.
In their affidavits, the Lodges acknowledged that they did not see the March
12, 2009 Notice of Sale in the Rockdale Citizen and discovered it only when they
received the law firms’ letters. On April 7, 2009, the Lodges learned the
foreclosure would not happen. Thus, the maximum duration of the Lodges’
concern about the possibility of foreclosure was a period from sometime after
March 12, 2009 until April 7, 2009.
In support of the Lodges’ claim of emotional distress, plaintiff Delores
Lodge attested that, before the Lodges discovered that the foreclosure sale would
not occur, her husband, Kenneth Lodge, was “unbearable.” She could not talk to
him. He did not want to listen to her. She was “stressed out,” so she visited her
family doctor for stress and back pain and was prescribed medication. She could
not sleep without medication, began to sleep more with medication, and avoided
her husband and children.
Plaintiff Kenneth Lodge attested that the publication of the Notice of Sale
made him “furious” and a “bear to be around.” He (1) was a car salesman and was
“so stressed out” that he had difficulties selling cars, (2) was unable to sleep “[f]or
the entire rest of the month,” (3) began having migraine headaches, and (4) had to
be prescribed medication after his preexisting acid reflux worsened. His children
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and co-workers began to avoid him. He argued with his wife. He “began to worry
what would happen to [him] next.”
In ruling on the parties’ summary judgment motions, the district court
observed that defendants McCalla and Kondaur conceded that they willfully
violated the automatic stay. The district court determined, however, that the
emotional distress injuries set forth in the Lodges’ affidavits were too generalized
and speculative to show an injury sufficient to support a recovery under § 362(k),
and that the Lodges failed to show that any harm they suffered was a direct result
of the defendants’ actions as opposed to other factors. The district court therefore
granted summary judgment in the defendants’ favor on the automatic stay claim
and denied the Lodges’ motion for partial summary judgment.
C. Summary Judgment Motions on FDCPA Claim (Count 2)
On May 2, 2012, the Lodges moved for summary judgment on the FDCPA
claim, asserting the defendants were “debt collectors.” Initially, the Lodges’ only
cited evidence was McCalla’s motions for relief from the stay (filed in December
2006, July 2007, and December 2008) and an amendment to one of those motions
(filed on August 2009), which McCalla filed as a law firm on behalf of Home Loan
Services and, later, Kondaur.
On May 29, 2012, the defendants, in response, argued that the Lodges had
not shown that they were “debt collectors” under the FDCPA.
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In June 2012, the Lodges filed a reply, arguing that the defendants were debt
collectors because their websites indicated that their businesses concerned
borrowers in default. The Lodges’ reply did not (1) attach screenshots of
McCalla’s or Kondaur’s websites, (2) give the address of the websites, or (3)
request the district court to take judicial notice of those websites.
Around the same time period, defendants McCalla and Kondaur filed their
own motion for summary judgment, arguing that they had not violated the FDCPA.
In a Report and Recommendation (“R&R”), a magistrate judge
recommended denying the Lodges’ summary judgment motion and granting the
defendants’ summary judgment motion. The magistrate judge determined that the
Lodges (1) failed to set forth any facts whatsoever in their response to the
defendants’ summary judgment motion; (2) failed to meet their burden of showing,
in their response to the defendants’ summary judgment motion, that the defendants
were debt collectors, as defined under the FDCPA and required for FDCPA
liability; and (3) by relying solely on McCalla’s motions seeking relief from the
stay in Kenneth Lodge’s bankruptcy proceeding, failed to show that the defendants
were debt collectors for the purposes of their own motions for summary judgment.
The magistrate judge acknowledged that, in their June 2012 reply in support
of their motion for summary judgment, the Lodges had pointed to the defendants’
websites. The magistrate judge determined, however, that the Lodges waived any
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argument based on the websites by not presenting it in their opening summary
judgment brief, thereby depriving the defendants of the opportunity to address the
websites in their response. Further, the magistrate judge would not consider the
information from the websites because the Lodges did not support the information
with citations to the record and did not mention the information in their “Statement
of Material Facts Not In Dispute,” in violation of the local rules.4
The Lodges filed objections to the magistrate judge’s R&R, arguing that the
defendants were “debt collectors” under the FDCPA. The Lodges requested, for
the first time, that the district court take judicial notice of the contents of the
defendants’ websites and of a document from the “Georgia Press Association
Public Notice Website,” purporting to show that McCalla had conducted numerous
foreclosures. 5 The Lodges asserted that these materials, if judicially noticed,
would prove that the defendants were “debt collectors” under the FDCPA.
Overruling the Lodges’ objections, the district court agreed with the
magistrate judge that the court was not required to consider the information from
the defendants’ websites because the Lodges (1) presented it for the first time in
4
In a footnote, the magistrate judge noted that the district court had the authority to take
judicial notice of facts sua sponte, but the magistrate judge declined to do so.
5
The document from the “Georgia Press Association Public Notice Website” contained
numerous notices of sale from 2008 and 2009 that stated that McCalla sought to foreclose on
properties of individuals who were not parties to the Lodges’ lawsuit. Several of the notices
stated that McCalla was “ACTING AS A DEBT COLLECTOR ATTEMPTING TO COLLECT
A DEBT.”
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their reply brief; (2) failed to support it with citations to evidence in the record; and
(3) did not present it in their “Statement of Material Facts Not In Dispute.” The
district court denied the Lodges’ request to take judicial notice of the defendants’
websites and the document from the “Georgia Press Association Public Notice
Website” because, inter alia, the Lodges did not present that evidence and
argument to the magistrate judge. The district court adopted the R&R, denied the
Lodges’ motion for summary judgment, and granted the defendants’ motion for
summary judgment. The Lodges timely appealed. 6
III. AUTOMATIC STAY CLAIM (COUNT 1)
A. Section 362(k)
It is well established that the filing of a bankruptcy petition acts to
automatically stay all efforts outside of bankruptcy to enforce a lien against a
debtor’s property or to collect debts from a debtor who is under the protection of
the bankruptcy court. 11 U.S.C. § 362(a)(4), (6). Unless the action comes under
an exception in 11 U.S.C. § 362(b) or a party receives relief from the stay under 11
U.S.C. § 362(d), the stay generally remains in effect until the bankruptcy court
6
We review a district court’s summary judgment decision de novo, applying the same
legal standards as those that governed the district court. Bradley v. Franklin Collection Serv.,
Inc., 739 F.3d 606, 608 (11th Cir. 2014). Summary judgment is appropriate where “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a).
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disposes of the case. 11 U.S.C. § 362(c); see Carver v. Carver, 954 F.2d 1573,
1576 (11th Cir. 1992).
In turn, § 362(k) provides that an “individual injured by any willful violation
of a stay provided [by § 362] shall recover actual damages, including costs and
attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.”
11 U.S.C. § 362(k) (emphasis added). Here, there is no dispute that the defendants
McCalla and Kondaur knew that the automatic stay was in place and willfully
violated the stay. 7 Rather, the issues here are (1) whether the statutory term “actual
damages” encompasses emotional distress damages, and, if so, (2) the evidentiary
requirements for an emotional distress claim under § 362(k). 8
Although this Court has not yet decided these issues, four of our sister
circuits have. None of these circuits have completely foreclosed an award of
emotional distress damages under § 362(k). Three circuits (the First, Seventh, and
7
On appeal, the Lodges do not argue that they are entitled to punitive damages under
§ 362(k), and thus, we do not address punitive damages.
8
We reject the Lodges’ argument, made in passing, that the defendants’ violation of the
automatic stay alone constitutes an injury sufficient to allow the Lodges to recover under
§ 362(k). Only individuals who have been injured may recover damages under § 362(k). See
Garden v. Cent. Neb. Hous. Corp., 719 F.3d 899, 906 (8th Cir. 2013) (“To recover under
§ 362(k), the debtor must show that the creditor’s violation of the automatic stay was willful and
that the violation injured the debtor.”); Vazquez Laboy v. Doral Mortg. Corp. (In re Vazquez
Laboy), 647 F.3d 367, 371, 375-76 (1st Cir. 2011) (stating that, to be entitled to damages under
§ 362(k), a party must first prove an injury; then concluding that the debtors had sufficiently set
forth an injury, as they had “expended court costs and attorneys’ fees in order to vindicate the
automatic stay”); McMullen v. Sevigny (In re McMullen), 386 F.3d 320, 332 (1st Cir. 2004)
(finding a technical violation of an automatic stay was non-compensable under § 362(h) (later
recodified at § 362(k)) because the debtor had not shown that he had suffered an injury).
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Ninth Circuits) concluded, and one (the Fifth Circuit) suggested, that “actual”
damages in § 362(k) may encompass emotional distress damages. We review our
sister circuits’ decisions below.
B. First Circuit’s Fleet Mortgage Group, Inc. v. Kaneb
In Fleet Mortgage Group, Inc. v. Kaneb, the First Circuit reviewed a
bankruptcy court’s award of emotional distress damages under § 362(h) (later
recodified at § 362(k)) to a plaintiff for an automatic stay violation. 196 F.3d 265,
269-70 (1st Cir. 1999). The plaintiff in Kaneb had “provided specific information
about the sharp decline in social invitations and outings following [a mortgage
company’s] violation of the automatic stay rather than ‘generalized assertions’ of
his emotional state.” Id. at 269. The plaintiff also testified about the emotional
distress he had experienced because of those changes in his life. Id. at 270.
The First Circuit stated, without discussion of the text or legislative history
of § 362, that “emotional damages qualify as ‘actual damages’ under § 362(h),”
as “[a]n honest accounting of actual damages under § 362(h) must include the
psychological suffering of [the plaintiff].” Id. at 269-70. The First Circuit
affirmed the bankruptcy court’s award of damages for mental anguish, but declined
to address the evidentiary requirements concerning an emotional distress claim
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because the mortgage company had waived those arguments by failing to raise
them in the bankruptcy court. Id. at 269-70. 9
C. Seventh Circuit’s Aiello v. Providian Financial Corp.
In Aiello v. Providian Financial Corp., the Seventh Circuit concluded that a
plaintiff, absent a financial loss, could not recover “damages for purely emotional
injury” under § 362(h). 239 F.3d 878, 878, 881 (7th Cir. 2001). The Seventh
Circuit recognized that the First Circuit in Kaneb had held “that damages awarded
for emotional injury caused by a willful violation of the automatic stay are ‘actual
damages.’” Id. at 878. The Seventh Circuit then said: “[n]o doubt they are; but
whether their award is authorized by the statute is a separate question, one not
addressed in [Kaneb], the defendant apparently having waived it.” Id. The
Seventh Circuit concluded that the purpose behind the automatic stay was financial
in character, not to protect emotional peace of mind, but a plaintiff “might be
permitted to piggyback a claim for damages for incidental emotional loss” to a
claim for a financial loss. Id. at 879, 881.
In reaching this conclusion, the Seventh Circuit determined that “[t]he
automatic stay is primarily for the protection of the unsecured creditors as a group”
and that “[t]he stay prevents . . . a race by the creditors to seize the debtor’s assets,
9
In United States v. Torres (In re Rivera Torres), the First Circuit determined that the
language in Kaneb concerning whether § 362(h) authorized emotional distress damages was
dicta because the Kaneb mortgage company had waived the argument as to whether § 362(h)
authorized the award. 432 F.3d 20, 28 (1st Cir. 2005).
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a race that by thwarting the orderly liquidation of those assets would yield the
creditors as a group less than if they are restrained.” Id. at 879. As to secured
creditors, the Seventh Circuit observed that the automatic stay blocks the
“foreclosure of the creditor’s security interest” until the conclusion of the
bankruptcy or a grant of relief from the automatic stay. It also noted that a
security interest is not extinguished by the discharge in bankruptcy of the debtor’s
debts. Id.
The Seventh Circuit stated that “[b]ankruptcy is a harrowing experience, for
the bankrupt but sometimes for the creditors as well.” Id. Nevertheless, the
Seventh Circuit determined that “[t]he Bankruptcy Code was not drafted with
reference to the emotional incidents of bankruptcy” and the protection provided by
the automatic stay “is financial in character; it is not protection of peace of mind.”
Id. The Seventh Circuit explained that § 362(k)’s purpose is “not to redress tort
violations but to protect the rights conferred by the automatic stay.” Id. at 880.
Importantly, the Seventh Circuit stressed that “[t]he law has always been
wary of claims of emotional distress, because they are so easy to manufacture” and
there is a considerable “potential for abuse if damages for a purely emotional
injury can be awarded in suits to redress violations of the automatic stay.” See id.
at 880-81. The Seventh Circuit added that it did not intend to suggest that
“victims of tortious infliction of emotional distress in the course of a bankruptcy
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proceeding are orphans of the law.” Id. at 880. Rather, the Seventh Circuit
determined that a plaintiff has “the normal tort remedies against oppressive debt-
collection tactics” or, as stated earlier, may be able to “piggyback” an emotional
injury claim under § 362(k) where he can also show financial loss. Id. at 881.
D. Fifth Circuit’s Young v. Repine
In Young v. Repine (In re Repine), the Fifth Circuit suggested that, in some
circumstances, a bankruptcy court may award emotional injury damages under
§ 362(k). 536 F.3d 512, 521-22 (5th Cir. 2008). The Fifth Circuit reviewed Kaneb
and Aiello. The Fifth Circuit concluded that Kaneb held that (1) “emotional
damages qualify as ‘actual damages’ under [§] 362(k),” and (2) “emotional
damages awards under [§] 362(k) must be supported by ‘specific information,’
rather than ‘generalized assertions.’” Id. at 521. The Fifth Circuit concluded that
Aiello “implicitly endorsed” the specificity requirement set forth in Kaneb and
held that “emotional injury is not compensable under [§] 362(k) unless the
emotional injury can be linked to some other financial injury.” Id.
After reviewing these decisions, the Fifth Circuit determined that, at a
minimum, the plaintiff “was required to set forth ‘specific information’ concerning
the damages caused by his emotional distress rather than relying only on
‘generalized assertions.’” Id. at 521-22. The Fifth Circuit declined to “adopt a
precise standard for whether, or under what circumstances, a court may award
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emotional damages under [§] 362(k)” because the plaintiff had failed to make this
minimal showing. Id. at 522.
E. Ninth Circuit’s Dawson v. Washington Mutual Bank, F.A.
Finally, in Dawson v. Washington Mutual Bank, F.A. (In re Dawson), the
Ninth Circuit concluded that the term “actual damages” in § 362(h) includes
emotional distress damages. 390 F.3d 1139, 1146-49 (9th Cir. 2004). The Ninth
Circuit determined that the text and context of § 362(h) were ambiguous as to
whether “actual damages” included emotional distress damages. Id. at 1146.
However, in examining the legislative history of the statute, the Ninth
Circuit determined that the purpose of the automatic stay provision had both
financial and non-financial goals. Id. at 1147. In addition to the financial goals,
Congress intended the provision to create a “breathing spell” and “take[] the
pressure off the debtor,” which suggested “a human side to the bankruptcy
process.” Id. at 1147-48 (quotation marks omitted). Thus, Congress was
concerned with the emotional and psychological toll that a violation of a stay can
exact from a bankruptcy debtor. Id. at 1148. The Ninth Circuit decided that
“[b]ecause Congress meant for the automatic stay to protect more than financial
interests, it makes sense to conclude that harm done to those non-financial interests
by a violation are cognizable as ‘actual damages.’” Id. The Ninth Circuit
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concluded that the actual damages that may be recovered by an individual injured
by a willful violation of the automatic stay include emotional distress damages. Id.
In determining what standard applied to an emotional distress claim, the
Ninth Circuit held that a plaintiff can recover damages for emotional distress
where the plaintiff can satisfy a three-part test: (1) the plaintiff suffered
“significant harm,” as opposed to “[f]leeting or trivial anxiety or distress”; (2) that
significant harm is “clearly establish[ed]”; and (3) there is “a causal connection
between that significant harm and the violation of the automatic stay (as distinct,
for instance, from the anxiety and pressures inherent in the bankruptcy process).”
390 F.3d at 1149. The Ninth Circuit explained that “not every willful violation
merits compensation for emotional distress” and that its three-part test is aimed at
“limiting frivolous claims.” Id.
The Ninth Circuit instructed that a plaintiff can satisfy the second prong of
its test by offering corroborating medical evidence or non-expert testimony (for
example, by family members, friends, or co-workers) about the manifestations of
his mental anguish. Id. at 1149-50. The Ninth Circuit recognized that “[i]n some
cases significant emotional distress may be readily apparent even without
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corroborative evidence,” such as where “the violator may have engaged in
egregious conduct.” Id. at 1150. 10
F. Lodges’ Claim
Here, we join other circuits in concluding that emotional distress damages
fall within the broad term of “actual damages” in § 362(k). We share, however,
the Fifth, Seventh, and Ninth Circuits’ caution that not every willful violation of
the stay merits compensation for emotional distress and that a standard governing
such claims is necessary. We thus hold that, at a minimum, to recover “actual”
damages for emotional distress under § 362(k), a plaintiff must (1) suffer
significant emotional distress, (2) clearly establish the significant emotional
distress, and (3) demonstrate a causal connection between that significant
emotional distress and the violation of the automatic stay. See Dawson, 390 F.3d
at 1149.
And, we agree with the district court that the Lodges have not made this
showing. 11 First, the Lodges failed to show that they suffered significant
10
In Dawson, the Ninth Circuit ultimately reversed the bankruptcy court’s award of
emotional distress damages and remanded for reconsideration because the bankruptcy court did
not have the benefit of the standards articulated for the first time in the Ninth Circuit’s opinion.
390 F.3d at 1150-51.
11
In determining that the Lodges failed to show an emotional distress injury sufficient for
an award of damages under § 362(k), the district court used a test identical to the test set forth in
Dawson. And, several bankruptcy courts within the Eleventh Circuit have also used the Dawson
test to determine whether a plaintiff has shown an emotional injury sufficient to recover under
§ 362(k). See, e.g., Thomason v. Chestatee Cmty. Ass’n (In re Thomason), 493 B.R. 890, 903
(Bankr. N.D. Ga. 2013); Caffey v. Russell (In re Caffey), 384 B.R. 297, 309 (Bankr. S.D. Ala.
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emotional distress. See id. The Lodges admit that they learned of the publication
of the Notice of Sale only when they received letters from law firms informing
them that they were “about to be foreclosed.” The Lodges did not file copies of
those letters or even specify when they received them, rendering it impossible to
determine exactly how long they held their mistaken belief that their property was
to be foreclosed. The Lodges offered only generalized evidence that they were
“stressed out” and had difficulties interacting with one another and their children.
Kenneth Lodge added that he had “trouble selling automobiles” and that his
coworkers were avoiding him. This generalized evidence, without any additional,
specific detail, does not show that the Lodges suffered significant emotional
distress due to the Notice of Sale being published for a single day, as opposed to
“[f]leeting or trivial anxiety or distress.” See id. Moreover, the Lodges admit that,
by April 7, 2009, they knew that the foreclosure sale would not occur.
Further, the Lodges submitted only their affidavits and have therefore failed
to corroborate their injuries in any way. See id. The Ninth Circuit suggested that
corroborating evidence may not be necessary to prove emotional distress where the
violator engaged in egregious conduct and significant emotional distress is readily
apparent. See id. at 1149-50. But, this is not that type of case. There is no
2008); In re Arnell, No. 05-12444-WHD, 2006 WL 6589025, at *6 (Bankr. N.D. Ga. Dec. 26,
2006).
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evidence that defendants McCalla and Kondaur engaged in egregious conduct, as
they canceled the publication of the Notice of Sale the same day that it ran. There
is no evidence that the defendants intended to harm the Lodges by publishing the
advertisement. Nothing else in the record makes it obvious that the Lodges
suffered significant emotional distress.
In any event, the Lodges have not established a causal connection between
their injuries and the violation of the automatic stay. See id. at 1149. Given
Kenneth Lodge’s multi-year bankruptcy proceedings, there is no showing of a
connection between the letters and the Lodges’ stress and physical maladies.
While the Lodges averred that they visited a doctor in relation to their conditions,
they did not attach any evidence of these visits. Medical evidence here would be
particularly helpful in evaluating the cause of their specific conditions, as well as
evidence that the Lodges had not suffered from these conditions before and how
soon after the Lodges’ discovery of the one-day publication of the Notice of Sale
these conditions arose.
Because the Lodges failed to show an emotional injury sufficient to support
a recovery of actual damages under § 362(k), the district court did not err in
granting summary judgment in favor of the defendants as to the automatic stay
claim. In light of the result we reach today, we need not decide whether the
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Lodges were also required to show financial or physical injury before a court could
award emotional distress damages under § 362(k).12
IV. FDCPA CLAIM (COUNT 2)
The FDCPA imposes liability on “debt collectors” who fail to comply with
its provisions when collecting a “debt.” 15 U.S.C. § 1692k. The FDCPA’s
restrictions apply only to “debt collectors.” The Lodges’ complaint asserts that the
defendants violated the FDCPA provision, 15 U.S.C. § 1692f(6). A “debt
collector” is defined, for the purposes of § 1692f(6), as “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts [or the enforcement of security
interests], or who regularly collects or attempts to collect . . . debts . . . due another
. . . .” Id. § 1692a(6); see Harris v. Liberty Cmty. Mgmt., Inc., 702 F.3d 1298,
1302 (11th Cir. 2012). The Lodges attempted to establish that the defendants are
debt collectors by reference to two sources: the defendants’ websites and a
12
We conclude that Marable v. Walker, 704 F.2d 1219, 1220-21 (11th Cir. 1983) (holding
that damages for emotional distress “in cases of this type ‘may be inferred from the
circumstances as well as proved by the testimony’”), does not apply here, as it concerns damages
for emotional distress in cases under the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982,
and the Fair Housing Act, 42 U.S.C. § 3601, et seq., not damages for emotional distress for
violations of an automatic stay during the course of bankruptcy proceedings. See Sheely v. MRI
Radiology Network, P.A., 505 F.3d 1173, 1180, 1199 (11th Cir. 2007) (providing that emotional
distress is a predictable and foreseeable consequence of discrimination and that federal courts
have long found that violations of antidiscrimination statutes frequently result in emotional
distress to victims).
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document from the “Georgia Press Association Public Notice Website.” We
analyze the district court’s treatment of each of these sources in turn.
A. Defendants’ Websites
The Lodges claimed that the defendants’ websites list, inter alia, services,
such as foreclosure services, that show that the defendants are debt collectors. The
district court, however, did not abuse its discretion in declining to take judicial
notice of the contents of the defendants’ websites.
Under Rule 201 of the Federal Rules of Evidence, a court “may take judicial
notice on its own” or “must take judicial notice if a party requests it and the court
is supplied with the necessary information.” Fed. R. Evid. 201(c) (emphases
added). Further, Rule 201 states that a court “may take judicial notice at any stage
of the proceeding.” Fed. R. Evid. 201(d) (emphasis added).
Here, the Lodges first requested the district court to take judicial notice of
the defendants’ websites in the Lodges’ objections to the magistrate judge’s R&R.
Even then, the Lodges did not provide the district court with screenshots of the
websites or the websites’ addresses. Without the necessary information concerning
the websites, and in light of the timing of the request, the district court was not
required to take judicial notice under Rule 201.
The Lodges are correct that a court has “wide discretion” to take judicial
notice of appropriate adjudicative facts at any stage in a proceeding, including at
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the summary judgment stage. See Fed. R. Evid. 201(d); Dippin’ Dots, Inc. v.
Frosty Bites Distribut., LLC, 369 F.3d 1197, 1204-05 (11th Cir. 2004).
Nevertheless, the taking of judicial notice of facts is “a highly limited process.”
Dippin’ Dots, Inc., 369 F.3d at 1205 (quotation marks omitted). “The reason for
this caution is that the taking of judicial notice bypasses the safeguards which are
involved with the usual process of proving facts by competent evidence in district
court.” Id. (quotation marks omitted). We do not decide here whether the contents
of a website may ever be judicially noticed under Rule 201 because the Lodges
wholly failed to provide the necessary information.
In any event, the district court gave an alternative, independent basis for not
considering the Lodges’ references to the defendants’ websites. The district court
relied on its local rule, providing that the court will not consider any fact that is
“set out only in the brief and not in the movant’s statement of undisputed facts.”
LR 56.1B(1), (2)(b), NDGa. The district court declined to consider any purported
facts on the defendants’ websites because those facts were not set forth in the
Lodges’ statement of undisputed facts.
On appeal, the Lodges have not challenged this local rule basis for the
district court’s decision. Thus, the Lodges have abandoned any challenge they
may have had to this alternative basis. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 682-83 (11th Cir. 2014). Because this basis is alone sufficient for
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the district court to reject the Lodges’ argument concerning the defendants’
websites, we can affirm on this basis alone and need not consider any of the
Lodges’ arguments addressing other bases for the district court’s decision. See id.
at 683 (affirming the district court’s dismissal of claims because the plaintiffs-
appellants failed to challenge an independent, alternative ruling on which that
dismissal was based).
B. “Georgia Press Association Public Notice Website” Document
The district court also did not abuse its discretion in declining to consider a
document purportedly from the “Georgia Press Association Public Notice
Website” that listed foreclosure advertisements for properties unrelated to the
Lodges’ property. First, the Lodges never mentioned this evidence before the
magistrate judge, much less argued that this evidence showed that the defendants
were “debt collectors” under the FDCPA. It was well within the district court’s
discretion to decline to consider it. See Williams v. McNeil, 557 F.3d 1287, 1292
(11th Cir. 2009) (holding that a district court, in reviewing an R&R, has discretion
to decline to consider a party’s argument that was not first presented to a
magistrate judge); see also Knight v. Thompson, 723 F.3d 1275, 1277 n.1 (11th
Cir. 2013) (determining that the plaintiffs waived the argument because it was first
raised in their objections to the magistrate judge’s R&R, and the district court did
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not consider the argument when ruling on the R&R), petition for cert. filed, (U.S.
Feb. 6, 2014) (No. 13-955).
Second, this evidence was inadmissible, as the Lodges did not authenticate
it. See Fed. R. Evid. 901. The document could not be judicially noticed by the
district court because the facts within it were not “generally known within the trial
court’s territorial jurisdiction” and could not be “accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.” See Fed. R. Evid.
201(b).
Accordingly, we affirm the district court’s order granting summary
judgment in favor of McCalla and Kondaur as to the Lodges’ FDCPA claim. 13
V. CONCLUSION
For the foregoing reasons, we affirm the district court’s orders granting
summary judgment in favor of defendants McCalla and Kondaur.
AFFIRMED.
13
The one-page Notice of Sale published in the Rockdale Citizen indicated that defendant
McCalla placed the Notice of Sale and stated that McCalla was “ACTING AS A DEBT
COLLECTOR ATTEMPTING TO COLLECT A DEBT.” In the district court and on appeal,
the Lodges do not argue that McCalla is a debt collector based on the Notice of Sale. Thus, we
do not address whether this single document, standing alone, is sufficient to show that McCalla
is a debt collector under the FDCPA.
25