Diana Houck v. Substitute Trustee Services

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2326

DIANA LOUISE HOUCK; STEVEN G. TATE,

Plaintiffs - Appellants,

v.

SUBSTITUTE TRUSTEE SERVICES, INC.,

Defendant - Appellee,

and

LIFESTORE BANK; GRID FINANCIAL SERVICES, INC.,

Defendants.

-------------------------

PAULA STEINHILBER BERAN,

Court-Assigned Amicus Counsel.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. David S. Cayer,
Magistrate Judge. (5:13-cv-00066-DSC)

Argued: May 12, 2015 Decided: July 1, 2015

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Vacated, reversed in part, and remanded by published opinion.
Judge Niemeyer wrote the opinion, in which Judge Diaz and Judge
Floyd joined.
M. Shane Perry, COLLUM & PERRY, Mooresville, North Carolina, for
Appellants. Jeffrey Allen Bunda, HUTCHENS LAW FIRM, Charlotte,
North Carolina, for Appellee. Paula Steinhilber Beran, TAVENNER
& BERAN, PLC, Richmond, Virginia, as Court-Assigned Amicus
Counsel.

2
NIEMEYER, Circuit Judge:

Diana Houck commenced this action under 11 U.S.C. § 362(k),

alleging that the defendants foreclosed on and sold her

homestead in violation of the automatic stay triggered by her

filing of a Chapter 13 bankruptcy petition. The district court

granted the motion to dismiss filed by one of the defendants,

Substitute Trustee Services, Inc. (the “Substitute Trustee”),

concluding that Houck failed to allege facts that plausibly

supported her allegation that the violation of the automatic

stay was willful, a necessary element of a § 362(k) claim.

Because we find to the contrary, we vacate the district court’s

judgment, reverse its order dismissing Houck’s claims against

the Substitute Trustee, and remand for further proceedings.

I

In 2000, Houck’s father deeded to her part of the family

farm located in Ashe County, North Carolina. After Houck had

secured financing from a predecessor to LifeStore Bank, F.S.A.,

she and her then-fiancé, Ricky Penley, placed a mobile home on

part of the homestead.

In 2007, Houck refinanced the loan so that she and Penley

could remodel the family farmhouse, but within a year, she lost

her job and began having difficulty making her loan payments.

In the summer of 2009, after she and Penley were married, Houck

3
asked LifeStore for a loan modification. LifeStore, however,

referred her to Grid Financial Services, Inc., a debt collection

agency, which denied her request because she was unemployed.

Houck thereafter defaulted on her loan.

In July 2011, the Hutchens Law Firm (formerly Hutchens,

Senter, Kellam & Pettit, P.A.) served Penley with a notice of

foreclosure. To stop the foreclosure proceedings, Houck, acting

pro se, filed a Chapter 13 bankruptcy petition on September 12,

2011. The next day, the Hutchens Law Firm notified the Clerk of

the Superior Court of Ashe County that Houck had filed a

bankruptcy petition and consequently that all foreclosure

proceedings had to be stayed. A few weeks later, however, the

bankruptcy court dismissed Houck’s petition because she had

failed to file certain schedules and statements in accordance

with applicable bankruptcy rules, and the Substitute Trustee, by

its counsel, the Hutchens Law Firm, reactivated the foreclosure

proceedings.

On December 16, 2011, Houck, again acting pro se, filed a

second Chapter 13 bankruptcy petition, again to stop the

foreclosure proceedings. On that same day, Penley called the

Hutchens Law Firm to notify it of the bankruptcy filing. The

employee of the Firm with whom Penley spoke acknowledged that

the Firm had a file for Houck. Penley told the employee that

Houck had filed a second bankruptcy petition earlier that day,

4
and he provided the employee with the new case number. On that

same day, Penley also contacted LifeStore to notify it of the

new bankruptcy petition. LifeStore told Penley that it intended

to wait for notice from the bankruptcy court before taking any

action.

On December 18, 2011, two days after Houck had filed her

second bankruptcy petition, the bankruptcy court ordered Houck

to appear and show cause why her petition should not be

dismissed. Two days later, on December 20, 2011, the Substitute

Trustee, represented by the Hutchens Law Firm, sold Houck’s

homestead at a foreclosure sale. The following day, the

bankruptcy court dismissed Houck’s second bankruptcy petition.

Because Houck had filed the second petition with the purpose of

preventing the sale of her homestead and it had already been

sold, she did not object to the petition’s dismissal.

Thereafter, Penley endeavored unsuccessfully to undo the sale.

In March 2012, after the sheriff issued a notice to vacate,

Houck and Penley left the homestead and moved into a small

cabin.

Houck retained counsel and commenced this action, naming as

defendants LifeStore, Grid Financial, and the Substitute Trustee

and asserting a claim against them under 11 U.S.C. § 362(k) for

violation of the automatic stay. She also asserted several

related state law claims.

5
 The Substitute Trustee filed a motion to dismiss the

complaint under Federal Rule of Civil Procedure 12(b)(6),

contending that the complaint had failed to allege that the

Substitute Trustee was aware of the second bankruptcy petition’s

filing at the time it conducted the foreclosure sale of Houck’s

homestead. The district court granted the motion by order dated

October 1, 2013, concluding that Houck had “failed to allege

that [she] sent notice of the second petition to [the Substitute

Trustee] or that [the Substitute Trustee] had any notice of the

[bankruptcy] petition.” Based on that deficiency, the court

also dismissed Houck’s related state law claims. On October 28,

2013, Houck filed an interlocutory appeal from the district

court’s order dismissing her claims against the Substitute

Trustee.

The remaining defendants, LifeStore and Grid Financial,

thereafter filed various motions to dismiss or for summary

judgment. In one of those motions, Grid Financial contended

that the district court lacked subject matter jurisdiction over

Houck’s § 362(k) claim, maintaining that the provision did not

create a private cause of action that could be adjudicated

outside of the bankruptcy court. By order dated February 20,

2014, the district court granted Grid Financial’s motion and

dismissed Houck’s complaint, agreeing that it lacked subject

matter jurisdiction over Houck’s federal claim for violation of

6
the automatic stay and declining to exercise its discretion to

adjudicate her state law claims. The Clerk of Court thereafter

entered judgment and closed the case.

Subsequently, we, sua sponte, dismissed Houck’s pending

appeal of the district court’s October 1, 2013 order dismissing

the Substitute Trustee because it had been taken from an

interlocutory order. Houck v. Substitute Tr. Servs., Inc., 582

F. App’x 230, 230 (4th Cir. 2014) (per curiam). We concluded

further that the jurisdictional defect was not cured by the

district court’s February 20, 2014 order granting Grid

Financial’s motion to dismiss for lack of subject matter

jurisdiction, as that order was also not final. Id. at 230 n.*.

Thereafter, Houck filed motions requesting that the

district court reopen the case and reconsider its February 20,

2014 order. The district court denied the motions, reiterating

that it had finally decided the case with that order. Houck

then filed an unopposed motion in our court for clarification,

seeking to resolve her procedural predicament created by the

district court’s statement that its February 20, 2014 order

finally closed the case and our contrary statement that that

order was not final. In response, we recalled the mandate

issued on our dismissal of Houck’s appeal and granted panel

rehearing.

7
 In her now-reopened appeal, Houck contends that, in

dismissing her § 362(k) claim against the Substitute Trustee,

the district court applied the wrong legal standard for ruling

on a Rule 12(b)(6) motion and erroneously concluded that her

complaint failed to allege sufficient facts to state a plausible

claim for relief.

II

At the outset, we determine whether we have jurisdiction to

hear Houck’s appeal. See, e.g., Chevron Corp. v. Page (In re

Naranjo), 768 F.3d 332, 342 (4th Cir. 2014).

In its October 1, 2013 order, the district court granted

the Substitute Trustee’s motion to dismiss on the ground that

Houck’s complaint failed to allege that she had given the

Substitute Trustee notice of her bankruptcy petition before the

Substitute Trustee sold her homestead, thus precluding any claim

that the Substitute Trustee’s conduct was willful. But because

LifeStore and Grid Financial were not parties to that motion and

remained defendants in the action, Houck’s appeal of the October

1 dismissal order was interlocutory. Moreover, Houck made no

request that the district court certify the order as a final

judgment under Federal Rule of Civil Procedure 54(b), although

it appears that she could have satisfied that rule’s

requirement. See, e.g., Nystedt v. Nigro, 700 F.3d 25, 29 (1st

8
Cir. 2012) (upholding a Rule 54(b) certification of an order

granting a Rule 12(b)(6) motion to dismiss filed by some but not

all of the defendants). Consequently, we dismissed Houck’s

appeal sua sponte because it was not taken from a final

decision, as required by 28 U.S.C. § 1291(a). Houck, 582 F.

App’x at 230.

After Houck requested that we reconsider the effect of the

district court’s February 20, 2014 order granting Grid

Financial’s motion to dismiss for lack of subject matter

jurisdiction, we recalled our mandate and now hear this appeal

to consider her arguments.

If the district court’s February 20, 2014 order, entered

several months after the court had dismissed Houck’s claims

against the Substitute Trustee, was a final judgment, then

Houck’s appeal might be reviewable under the doctrine of

cumulative finality -- a finality achieved by the cumulative

effect of the October 1, 2013 dismissal order and the February

20, 2014 dismissal order. See Equip. Fin. Grp., Inc. v.

Traverse Computer Brokers, 973 F.2d 345, 347 (4th Cir. 1992)

(recognizing cumulative finality in circumstances where all

claims are dismissed, albeit at different times, before the

appeal taken from the first dismissal order is considered).

Upon close review of the district court’s February 20, 2014

order, we conclude that it was indeed a final judgment. In that

9
order, the district court granted Grid Financial’s motion to

dismiss -- LifeStore was not a party to the motion -- concluding

that it did not have subject matter jurisdiction over Houck’s

§ 362(k) claim for violation of the Bankruptcy Code’s automatic

stay. Because subject matter jurisdiction goes to the power of

the court to adjudicate a claim, an order dismissing a claim for

lack of subject matter jurisdiction necessarily dismisses the

claim as to all defendants. And, indeed, the district court’s

February 20, 2014 order reflected this effect by dismissing the

entire complaint without limiting its ruling to any particular

party. Consistently, the district court also directed the Clerk

of Court to enter judgment by way of a separate docket entry, as

required by Federal Rule of Civil Procedure 58 for entry of a

final judgment. Finally, the court later confirmed that it had

intended to dismiss the entire case when it denied Houck’s

motions to reopen the case and to reconsider its February 20,

2014 ruling. Specifically, it stated that “[o]n February 20,

2014, the Court dismissed [Houck’s] only federal claim,” and it

declined to exercise supplemental jurisdiction over her pendent

state law claims. Because the district court’s February 20,

2014 order disposed of the entire case, “leav[ing] nothing for

[it] to do,” United States v. Breeden, 366 F.3d 369, 372 (4th

Cir. 2004) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,

467 (1978)) (internal quotation marks omitted), the order was a

10
final judgment. This brings us to consideration of the doctrine

of cumulative finality.

In Equipment Finance, we articulated the requirements for

application of the doctrine. There, the district court granted

summary judgment to one of two defendants, and the plaintiff

appealed the district court’s order. Equip. Fin., 973 F.2d at

346-47. While the appeal was pending, the plaintiff voluntarily

dismissed its claim against the second defendant. Id. at 347.

On appeal, we rejected the first defendant’s argument that we

lacked jurisdiction, concluding that the subsequent dismissal of

the claim against the remaining defendant prior to our

consideration of the appeal “effectively satisfie[d] the

finality requirements of Rule 54(b).” Id. Noting that the

case’s “procedural circumstances . . . warrant[ed] a practical

approach to finality,” we recognized a doctrine of “cumulative

finality where all joint claims or all multiple parties are

dismissed prior to the consideration of the appeal.” Id. The

doctrine applies, however, only when the appellant appeals from

an order that the district court could have certified for

immediate appeal under Rule 54(b). See In re Bryson, 406 F.3d

284, 287-89 (4th Cir. 2005).

In this case, the district court dismissed completely

Houck’s claims against the Substitute Trustee in its October 1,

2013 order, leaving open only her claims against LifeStore and

11
Grid Financial. Because the court could have certified such an

order as a final judgment under Rule 54(b) and because the court

later entered final judgment against the remaining defendants

with its February 20, 2014 order before we considered Houck’s

interlocutory appeal, we conclude that the doctrine of

cumulative finality applies and that we therefore have

jurisdiction to hear her appeal. 1

III

A second jurisdictional issue is presented by the district

court’s February 20, 2014 order, in which the court dismissed

Houck’s federal claim on the ground that it lacked subject

matter jurisdiction. Of course, if the court lacked subject

matter jurisdiction to hear Houck’s § 362(k) claim, it could not

have ruled on the Substitute Trustee’s Rule 12(b)(6) motion to

dismiss for failure to state a claim upon which relief could be

granted.

As noted above, on February 20, 2014, the district court

concluded, without further discussion, that a claim under

1 Houck argues, unnecessarily as it turns out, that we could
hear her appeal under the collateral order doctrine. That
doctrine, however, would not be applicable here, because Houck’s
claim against the Substitute Trustee was not a collateral matter
and Houck could well have obtained review of the dismissal order
on appeal from the final judgment. See generally Mohawk Indus.,
Inc. v. Carpenter, 558 U.S. 100 (2009); Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35 (1995).

12
§ 362(k) for violation of the automatic stay could only be

brought in a bankruptcy court, not in a district court. It

relied for support on Scott v. Wells Fargo Home Mortgage, Inc.,

326 F. Supp. 2d 709, 719 (E.D. Va.), aff’d sub nom. Scott v.

Wells Fargo & Co., 67 F. App’x 238 (4th Cir. 2003) (per curiam),

where the district court stated, “[I]t is doubtful that a

violation of § 362[k] is cognizable in this Court. While

§ 362[k] arguably creates [a] private right of action for

willful violation of [the] automatic stay, [it] does not create

a private cause of action outside of the Bankruptcy Court for

violations of [the] automatic stay.” (Citation omitted). The

Scott court in turn relied for support on Dashner v. Cate, 65

B.R. 492 (N.D. Iowa 1986).

But in Dashner, the district court did not consider

§ 362(k) because, at the time of the stay violation at issue

there, § 362(k) had not yet been enacted. 65 B.R. at 494. The

Dashner court simply held that before 1984 -- i.e., before the

creation of what is now a § 362(k) cause of action -- nothing in

the Bankruptcy Code “indicate[d] that Congress intended to

create a private right of action outside of [the] bankruptcy

court” for a violation of the automatic stay. Id. at 495. To

reach that conclusion, the court pointed to Stacy v. Roanoke

Mem’l Hosps. (In re Stacy), 21 B.R. 49 (Bankr. W.D. Va. 1982).

The Stacy court likewise considered a pre-1984 violation of the

13
automatic stay and concluded, “The proscriptive provision of the

Code in question here, the § 362 automatic stay provision, is

not a proscription to be enforced by a debtor or any third

party. A stay is an order of the [bankruptcy] court, to be

enforced by the [bankruptcy] court.” Id. at 52.

Thus, both Dashner and Stacy, on which Scott relied,

analyzed the pre-1984 version of § 362, which lacked subsection

(k)’s private cause of action, and therefore are inapposite.

For that reason, neither the district court’s opinion in Scott

nor our unpublished, one-paragraph affirmance of that decision

supports the district court’s determination below that only a

bankruptcy court may entertain a § 362(k) claim.

Both Houck and the Substitute Trustee now agree that the

district court erred in determining that it lacked jurisdiction

to adjudicate Houck’s § 362(k) claim. But because subject

matter jurisdiction cannot be conferred by agreement, see

McCorkle v. First Pa. Banking & Trust Co., 459 F.2d 243, 251

(4th Cir. 1972), we appointed counsel to submit an amicus curiae

brief defending the district court’s position on the issue. 2 We

turn now to whether the district court erred in concluding that

it lacked subject matter jurisdiction to adjudicate a claim

brought under § 362(k).

2We are grateful to Paula Steinhilber Beran, Esq., for
providing this “friend of the court” service to us.

14
 As background, the filing of a bankruptcy petition operates

immediately to stay creditors from pursuing certain enumerated

collection actions against the debtor or the debtor’s estate.

See 11 U.S.C. § 362(a). This automatic stay is “one of the

fundamental debtor protections provided by the bankruptcy laws.”

S. Rep. No. 95-989, at 54 (1978), reprinted in 1978 U.S.C.C.A.N.

5787, 5840. “It gives the debtor a breathing spell from his

creditors” and “stops all collection efforts, all harassment,

and all foreclosure actions.” Id.

Before 1984, when Congress enacted § 362(k) (designated

§ 362(h) when enacted), the automatic stay appeared to be merely

proscriptive. Section 362(a) provided that the filing of a

bankruptcy petition “operates as a stay,” without prescribing

any sanction for its violation. 11 U.S.C. § 362(a). The

Bankruptcy Code simply gave the bankruptcy court authority to

administer the proscription. For example, § 362(d) authorized

the bankruptcy court to “grant relief from the stay,” and

§ 362(e) and § 362(f) otherwise authorized the bankruptcy court

to regulate the stay’s length, conditions, and termination.

Thus, courts had held that the § 362(a) automatic-stay provision

did not provide a party with an independent right of action for

damages but rather with a procedural mechanism to be regulated

and enforced by the bankruptcy court. See, e.g., Stacy, 21 B.R.

at 52.

15
 In 1984, however, with the enactment of the Bankruptcy

Amendments and Federal Judgeship Act of 1984, Pub. L. No. 98-

353, 98 Stat. 333 (codified in scattered sections of 11 and 28

U.S.C.), Congress created a private cause of action for the

willful violation of a stay, authorizing an individual injured

by any such violation to recover damages. See 11 U.S.C.

§ 362(k). 3 In creating the cause of action, Congress did not

specify which courts possess jurisdiction over a § 362(k) claim

for violation of the automatic stay.

Under the Bankruptcy Amendments and Federal Judgeship Act,

the district courts were given “original and exclusive

jurisdiction in all cases under title 11,” 28 U.S.C. § 1334(a),

and “original but not exclusive jurisdiction of all civil

proceedings arising under title 11, or arising in or related to

cases under title 11,” id. § 1334(b). But they were also

3 Section 362(k) reads in full:

(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.

16
authorized to refer to bankruptcy judges any such cases or

proceedings. See id. § 157(a); Exec. Benefits Ins. Agency v.

Arkison, 134 S. Ct. 2165, 2171 (2014). In addition, the Act

authorized the district courts to withdraw, in whole or in part,

any case or proceeding that they had referred. See 28 U.S.C.

§ 157(d). In short, while the district courts were given

jurisdiction over bankruptcy cases, Congress also delegated to

the bankruptcy courts, “as judicial officers of the [district

courts],” Wellness Int’l, Ltd. v. Sharif, 135 S. Ct. 1932, 1945

(2015) (quoting 28 U.S.C. § 151) (internal quotation marks

omitted), adjudicatory authority, subject to the district

courts’ supervision as particularized in § 157 and the limits

imposed by the Constitution. In no circumstance, however, did

the Act, in conferring such adjudicatory authority, give a

bankruptcy court jurisdiction to the exclusion of a district

court.

A claim under § 362(k) for violation of the automatic stay

is a cause of action arising under Title 11, and as such, a

district court has jurisdiction over it. Of course, under

§ 157(a), a district court may refer a § 362(k) claim to the

bankruptcy court. If the § 362(k) claim did not “stem[] from

the bankruptcy itself or would [not] necessarily be resolved in

the claims allowance process,” Stern v. Marshall, 131 S. Ct.

2594, 2618 (2011), or would only “augment the bankruptcy estate

17
and would otherwise exis[t] without regard to any bankruptcy

proceeding,” Wellness, 135 S. Ct. at 1941 (alteration in

original) (citation and internal quotation marks omitted), the

§ 157 referral would be for recommended findings of fact and

conclusions of law, see Exec. Benefits, 134 S. Ct. at 2171-72,

2175. But even if the § 157 referral authorized the bankruptcy

court to adjudicate the claim to final judgment, it would not

deprive the district court of jurisdiction. See 28 U.S.C.

§ 1334(b); see also Justice Cometh, Ltd. v. Lambert, 426 F.3d

1342, 1343 (11th Cir. 2005) (per curiam); Price v. Rochford, 947

F.2d 829, 832 n.1 (7th Cir. 1991). But see Eastern Equip. &

Servs. Corp. v. Factory Point Nat’l Bank, 236 F.3d 117, 121 (2d

Cir. 2001) (per curiam) (stating, without considering 28 U.S.C.

§ 1334, that a § 362(k) claim “must be brought in the bankruptcy

court, rather than in the district court, which only has

appellate jurisdiction over bankruptcy cases”).

The amicus contends that jurisdiction to hear Houck’s

§ 362(k) claim was vested solely in the bankruptcy court because

of a standing referral order, entered under § 157(a), which has

been in place in one form or another in the Western District of

North Carolina since July 30, 1984. At the time relevant to

this case, that order provided that “all bankruptcy matters”

were “automatically referred” to the bankruptcy judge. The

amicus argues that, under § 157(d), until such time as that

18
reference is withdrawn, the district court has ceded its

jurisdiction to the bankruptcy court. She maintains that

§ 157(d)’s requirement that “cause” be shown for a discretionary

withdrawal of a referral confirms her interpretation. See 28

U.S.C. § 157(d) (“The district court may withdraw, in whole or

in part, any case or proceeding referred under this section, on

its own motion or on timely motion of any party, for cause

shown” (emphasis added)).

But nowhere in the text of § 157 is there any indication

that the provision is jurisdictional, as the amicus claims. The

text indicates that § 157 is simply a procedural mechanism

authorizing a bankruptcy court, upon referral from a district

court (1) to hear constitutionally core claims to final

judgment, subject to appeal in the district court, and (2) to

recommend findings of fact and conclusions of law to the

district court in constitutionally non-core matters for de novo

review and final judgment by the district court. See Exec.

Benefits, 134 S. Ct. at 2171-72, 2175. Indeed, in Stern, the

Court observed that § 157 is little more than a traffic

regulator, directing where adjudication of bankruptcy matters

can take place, and that it does not implicate subject matter

jurisdiction. 131 S. Ct. at 2607. As the Court stated:

Section 157 allocates the authority to enter final
judgment between the bankruptcy court and the district

19
 court. That allocation does not implicate questions
of subject matter jurisdiction.

Id. (emphasis added) (citation omitted); see also Home Ins. Co.

of Ill. v. Adco Oil Co., 154 F.3d 739, 742 (7th Cir. 1998) (“[A]

judge’s failure to follow orderly procedures [under § 157] for

allocating bankruptcy matters within a district court does not

deprive the court of subject-matter jurisdiction”). Consistent

with its ruling, the Stern Court held that because the

provisions of § 157 were not jurisdictional, their proscriptions

could be waived. 131 S. Ct. at 2607-08.

In the same vein, the fact that litigants may consent to a

bankruptcy court’s adjudication of a non-core proceeding also

indicates that § 157 is not jurisdictional. See 28 U.S.C.

§ 157(c)(2) (permitting bankruptcy courts to adjudicate

statutorily non-core proceedings with the parties’ consent);

Wellness, 135 S. Ct. at 1939 (holding that bankruptcy courts

may, with the parties’ knowing and voluntary consent, adjudicate

Stern claims -- i.e., statutorily core but constitutionally non-

core proceedings).

Thus, even if Houck’s § 362(k) claim was indeed subject to

the Western District of North Carolina’s standing order

referring “all bankruptcy matters” to the bankruptcy court, the

district court’s failure to follow the procedural rule did not

deprive it of subject matter jurisdiction. The district court

20
always had original jurisdiction over any bankruptcy matter, and

any breach of § 157 would “not implicate questions of subject

matter jurisdiction.” Stern, 131 S. Ct. at 2607; see also Home

Ins. Co., 154 F.3d at 742. While it may be that the district

court should have sent Houck’s § 362(k) claim to the bankruptcy

court in accordance with its standing order, the amicus has

failed to explain how not doing so deprived the district court

of the original jurisdiction that Congress bestowed upon it by

way of § 1334. See Justice Cometh, 426 F.3d at 1343 (stating

that, although the district courts may refer to the bankruptcy

courts proceedings arising under Title 11, “the explicit § 1334

grant of original jurisdiction over Title 11 cases clearly

forecloses a conclusion that the district court[s] lack[]

subject matter jurisdiction over [§ 362(k) claims]”); Price, 947

F.2d at 832 n.1 (observing that the plaintiff’s claim for

willful violation of the automatic stay “should probably have

been referred to the bankruptcy court under [the district

court’s standing order of reference],” but deciding that “the

defect [was] not jurisdictional”).

Moreover, neither Houck nor the Substitute Trustee objected

to the district court’s failure to refer this case to the

bankruptcy court. Accordingly, any claim that the case should

have been tried in the bankruptcy court was waived or forfeited.

See Stern, 131 S. Ct. at 2607-08 (holding that the failure to

21
raise the statutory limitations of § 157 amounted to a waiver or

forfeiture); Home Ins. Co., 154 F.3d at 742 (finding that the

district court had committed no reversible error in failing to

refer the matter to the bankruptcy court because, in part,

neither of the parties challenged the district court’s decision

to hear the case).

At bottom, we hold that the district court had subject

matter jurisdiction over Houck’s § 362(k) claim and therefore

that the court had authority to rule on the Substitute Trustee’s

motion to dismiss Houck’s claims against it, to which we now

turn.

IV

On the merits, Houck contends that the district court erred

in dismissing, under Federal Rule of Civil Procedure 12(b)(6),

her § 362(k) claim against the Substitute Trustee, arguing that

the court applied the wrong legal standard and that her

complaint was legally sufficient under the proper standard.

In dismissing her claim, the district court applied the

standard: “[I]f after taking the complaint’s well-pleaded

factual allegations as true, a lawful alternative explanation

appears a more likely cause of the complained of behavior, the

claim for relief is not plausible.” (Citation and internal

quotation marks omitted). The court then found that the

22
complaint was “replete with generalized and conclusory

allegations that the [foreclosure] sale was ‘improper’ or

‘conducted improperly’” and that “[t]he only specific factual

allegation against [the Substitute Trustee was] that it

conducted the foreclosure sale in violation of the bankruptcy

stay.” More specifically, the court focused on the elements of

a § 362(k) claim and noted that Houck had “failed to allege that

[she] sent notice of the second [bankruptcy] petition to [the

Substitute Trustee] or that [the Substitute Trustee] had any

notice of the petition,” thus precluding any allegation of

willfulness.

Houck argues that the district court improperly created a

balancing test for ruling on a Rule 12(b)(6) motion and that we

should “summarily reject[]” it because “it has no legal basis

and is logically unworkable.” And as to the court’s finding

that the complaint was factually insufficient, she argues simply

that the complaint did sufficiently allege that the Substitute

Trustee had notice of her bankruptcy petition, pointing to

numerous paragraphs in her complaint.

It is well established that a motion filed under Rule

12(b)(6) challenges the legal sufficiency of a complaint, see

Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009), and

that the legal sufficiency is determined by assessing whether

the complaint contains sufficient facts, when accepted as true,

23
to “state a claim to relief that is plausible on its face,”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility

standard requires only that the complaint’s factual allegations

“be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

In light of these well-established principles, we agree

with Houck that the district court’s articulated standard was

erroneous. While the court correctly accepted the complaint’s

factual allegations as true, it incorrectly undertook to

determine whether a lawful alternative explanation appeared more

likely. To survive a motion to dismiss, a plaintiff need not

demonstrate that her right to relief is probable or that

alternative explanations are less likely; rather, she must

merely advance her claim “across the line from conceivable to

plausible.” Twombly, 550 U.S. at 570. If her explanation is

plausible, her complaint survives a motion to dismiss under Rule

12(b)(6), regardless of whether there is a more plausible

alternative explanation. The district court’s inquiry into

whether an alternative explanation was more probable undermined

the well-established plausibility standard.

Turning to Houck’s complaint, it sought to state a claim

for relief under 11 U.S.C. § 362(k), which, as we have noted,

creates a cause of action for an individual injured by a

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violation of the automatic stay imposed by § 362(a). To recover

under § 362(k), a plaintiff must show (1) that the defendant

violated the stay imposed by § 362(a), (2) that the violation

was willful, and (3) that the plaintiff was injured by the

violation. See, e.g., Garden v. Cent. Neb. Hous. Corp., 719

F.3d 899, 906 (8th Cir. 2013).

The district court acknowledged that Houck’s complaint

adequately alleged that the Substitute Trustee violated the stay

imposed by § 362(a). But the court determined that the

complaint insufficiently alleged that the Substitute Trustee had

notice of Houck’s second bankruptcy petition and thus acted

willfully when it sold her homestead in foreclosure. The court

did not address the Substitute Trustee’s additional argument

that the complaint also failed to allege adequately that Houck

had been injured by the automatic-stay violation. Upon our

examination of the complaint, however, we conclude that neither

position can be sustained, as the complaint adequately alleged

that the Substitute Trustee had notice of Houck’s second

bankruptcy petition and that Houck sustained injury as a result

of the violation.

By way of background, the complaint alleged that LifeStore

was Houck’s lender; that Grid Financial was the collection

agency for LifeStore; that the Substitute Trustee conducted the

foreclosure sale on behalf of LifeStore and Grid Financial; and

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that the Hutchens Law Firm represented these defendants in the

foreclosure proceedings.

The complaint then alleged that on December 16, 2011, Houck

filed a Chapter 13 bankruptcy petition “to stop the foreclosure

and keep the homestead.” Compl. ¶ 62. It alleged that in her

bankruptcy petition, Houck “noticed LifeStore Bank,” Compl.

¶ 64, and that, on the same day that Houck filed the petition,

her husband “called [the Hutchens Law Firm] and notified them of

the bankruptcy filing,” Compl. ¶ 65. It detailed that call as

follows:

[Houck’s husband] told the person who answered the
phone that [Houck] had filed her bankruptcy petition.
The person on the phone said, “Hold on.” She then
told him that she pulled up the file for Diana Houck
and acknowledged that they had a file for her.
[Houck’s husband] gave her the new bankruptcy case
number at that time. He mentioned that it was a new
filing, filed that day. That was the end of the phone
call.

Compl. ¶ 65. The complaint further alleged that on the same day

that Houck filed the petition, her husband also “contacted

LifeStore by telephone and spoke with Anne Jones.” Compl. ¶ 66.

And it also detailed that call as follows:

He told her that [Houck] had filed a bankruptcy
[petition] that day. Ms. Jones said that people often
claim to have filed a bankruptcy without actually
filing and that [LifeStore] intended to wait for the
Court’s notice, or words to that effect.

Compl. ¶ 66. The complaint further alleged that, “[u]pon

information and belief[,] LifeStore received notice from the

26
AACER system of the bankruptcy filing on December 16, 2011, the

date that [Houck] filed the petition.” Compl. ¶ 67. Finally,

it alleged that the defendants “were noticed of the second

petition the same way they were under notice of the first

petition.” Compl. ¶ 69. Based on these allegations of notice,

the complaint concluded that the defendants “violated 11 U.S.C.

§ 362 by intentionally and knowingly foreclosing on [Houck’s]

real property while they knew that [Houck] was under the

protection of the automatic stay.” Compl. ¶ 93 (emphasis

added). It is difficult to imagine that a court could demand

more specificity with respect to the allegations of notice than

the details that Houck provided in her complaint.

With respect to the Substitute Trustee’s argument that

Houck failed to allege injury, the complaint is likewise

adequately detailed. The complaint alleged that Houck’s

homestead was sold in violation of the automatic stay on

December 20, 2011, to Fannie Mae, the insurer of LifeStore’s

loan, although the exhibits to the complaint show that it was

“Life Store Bank c/o Grid Financial Services, Inc.,” that

purchased the property. Compl. ¶ 74 & Ex. K. The complaint

further alleged that, “[u]pon information and belief, [Fannie

Mae] returned the homestead to LifeStore,” which “is presently

attempting to develop the land for sale.” Compl. ¶¶ 86-87.

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Finally, with respect to how the violation of the stay injured

her, the complaint alleged:

Because [Houck] and [her husband] were forced to move
from the homestead to a smaller cabin, they suffered
unreasonable loss including but not limited to:

a) Loss of the rental income from the
smaller cabin as [Houck] and [her
husband] were forced to move into the
cabin.

b) Loss of [Houck’s] grandmother’s antiques
as there was nowhere to store them.

c) Loss of value of four collector cars as
they are no longer being stored in a
garage.

d) Loss of income from [Houck’s] produce
stand.

e) Loss of barn where [Houck] kept farm
equipment and vegetables prior to sale.

f) Loss of furniture because of smaller
space.

g) Loss of all of their seasonal clothing
because of loss of storage space.

h) Lost all of their sentimental
possessions because of loss of storage
space.

i) Emotional injury.

Compl. ¶ 89.

In sum, we conclude that the complaint alleged facts that

more than adequately support Houck’s claims (1) that she gave

the defendants, including the Substitute Trustee through its

attorneys, notice of her December 16, 2011 bankruptcy filing and

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(2) that as a result of the defendants’ violation of the stay,

she was injured.

Rather than address Houck’s factual allegations in any

detail, the Substitute Trustee argues that Houck failed to

allege that she provided it with notice of her bankruptcy

petition in writing, which, it argues, she was required to do

under 11 U.S.C. § 342(c)(1) (“If notice is required to be given

by the debtor to a creditor . . . , such notice shall contain

the name, address, and last 4 digits of the [social security]

number of the debtor”). The Substitute Trustee reasons that,

because it did not receive such written notice before it sold

Houck’s homestead, it could not have willfully violated the

automatic stay. This argument, however, distorts the

requirements of § 362(k), which does not include any provision

that a particular form of notice be given. Rather, it imposes

liability for a willful violation of the automatic stay. We

agree with Houck that, because the complaint alleges that the

Substitute Trustee had actual notice of her December 16, 2011

bankruptcy petition when it sold her homestead, it sufficiently

alleges that the Substitute Trustee’s sale of her homestead on

December 20 with such notice was willful. See Alan N. Resnick &

Henry J. Sommer, 3 Collier on Bankruptcy ¶ 362.02, at 362-21

(16th ed. 2011) (“A party that has received notice of the

bankruptcy case, even if only oral notice, can be sanctioned for

29
violation of the stay”); see also ZiLOG, Inc. v. Corning (In re

ZiLOG, Inc.), 450 F.3d 996, 1008 (9th Cir. 2006) (“‘[A] party

with knowledge of bankruptcy proceedings is charged with

knowledge of the automatic stay’ for purposes of awarding

damages under [§ 362(k)]” (quoting Knupfer v. Lindblade (In re

Dyer), 322 F.3d 1178, 1191 (9th Cir. 2003))).

At bottom, we conclude that Houck stated a plausible claim

for relief under § 362(k).

V

As an alternative ground for dismissal of Houck’s claims,

the Substitute Trustee contends that Houck was not an “eligible

debtor” when she filed her second bankruptcy petition within 180

days of her first petition and therefore that the second

petition, filed on December 16, 2011, did not automatically

trigger the stay under § 362(a).

It is true that even though the automatic stay generally

operates “without the necessity for judicial intervention,”

Sunshine Dev., Inc. v. FDIC, 33 F.3d 106, 113 (1st Cir. 1994),

certain filings do not trigger the stay. For example, a filing

under 11 U.S.C. § 301, like Houck’s Chapter 13 petitions, does

not operate as a stay “of any act to enforce any lien against or

security interest in real property . . . if the debtor is

ineligible under [11 U.S.C. §] 109(g) to be a debtor in a case

30
under [Title 11].” 11 U.S.C. § 362(b)(21)(A). Section 109(g)

in turn provides in relevant part:

Notwithstanding any other provision of this section,
no individual . . . may be a debtor under this title
who has been a debtor in a case pending under this
title at any time in the preceding 180 days if --

(1) the case was dismissed by the court for
willful failure of the debtor to abide
by orders of the court, or to appear
before the court in proper prosecution
of the case . . . .

The 180-day filing ban is “an extraordinary statutory remedy for

perceived abuses of the [Bankruptcy] Code.” Frieouf v. United

States (In re Frieouf), 938 F.2d 1099, 1104 (10th Cir. 1991)

(second emphasis added) (citation and internal quotation marks

omitted).

While Houck’s second bankruptcy petition was filed within

180 days after the dismissal of her first petition, the

Substitute Trustee has not shown that the first petition was

dismissed because Houck willfully failed to abide by the

bankruptcy court’s orders or to appear in proper prosecution of

her case. Indeed, the record shows to the contrary. The

bankruptcy court dismissed Houck’s first petition, which she

filed pro se, because she “failed to file certain schedules,

statements, or other documents.” It made no mention of Houck’s

failure being willful -- i.e., knowing and deliberate. And

tellingly, the bankruptcy court did not dismiss her case with

31
prejudice, which bankruptcy courts “frequently” do when imposing

the 180-day filing ban authorized by § 109(g). See Colonial

Auto Ctr. v. Tomlin (In re Tomlin), 105 F.3d 933, 937 (4th Cir.

1997).

Moreover, when Houck filed her second petition within 180

days of her first petition’s dismissal, no party to the second

petition questioned whether Houck was an eligible debtor.

Similarly, when the bankruptcy court ultimately dismissed

Houck’s second petition, it did so because she failed to satisfy

§ 109(h)(1)’s credit-counseling requirement, not because she

failed to qualify as a debtor pursuant to § 109(g)(1).

Whether Houck was an eligible debtor when she filed her

second petition is a fact-bound question that requires

evidentiary support. Finding no such evidence in the record, we

reject the Substitute Trustee’s alternative ground for

dismissal.

VI

Based on its conclusion that Houck’s allegations were

insufficient to state a claim under § 362(k), the district court

also concluded that her “state law claims fail as well.”

Because the court predicated its dismissal of the state law

claims on a finding that we now reverse, we vacate its order

dismissing those claims as well. In remanding them to the

32
district court, however, we express no opinion as to their

merit.

* * *

The judgment of the district court is vacated; the court’s

October 1, 2013 order dismissing Houck’s § 362(k) claim against

the Substitute Trustee is reversed; and the case is remanded for

further proceedings.

VACATED, REVERSED IN PART, AND REMANDED

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