UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
LARRY WAYNE BEAR
DONNA MARIE BEAR CASE NO. 96-10423
OPINION AND ORDER
This matter is before the Court upon the objection to claim filed herein by the debtors to the claim of PNC Mortgage Corporation of America in the amount of $7,009.32. The basis for the objection to claim is that the claim contains certain sums which are not allowable including attorney=s fees and alleged state court filing fees. The debtors contend that the claim in this chapter 13 proceeding should be reduced to $6,063.02.
The claim in question includes, in accordance with the provisions of the mortgage and note, attorney=s fees in the amount of $830.50 for foreclosure proceedings begun after the filing of this case, but before the claimant received notice of the filing. The claimant has detailed these dates and the Court finds that the claimant filed the foreclosure action without intent to violate the stay since it had no knowledge of the filing of this proceeding. The filing of the foreclosure was a technical violation of the automatic stay set forth in 11 U.S.C. '362, but no sanctions are sought, or would be allowed under these circumstances, for such violation. Generally, actions taken in violation of the automatic stay are void even if the creditor had no notice of the stay. In re Smith, 876 F.2d. 524 (6th Cir. 1989). Since the creditor=s actions in this case would be void, or at least voidable, it would be inconsistent for the Court to allow attorney=s fees to be charged to the debtors for these services. The Court therefore will not allow the $830.50 in attorney=s fees claimed by the creditor.
A second dispute appears to be concerning the sum of $15.70 in property inspection fees which the debtors apparently labelAstate court filing fees@. It appears that such property inspection fees are allowable and in accordance with the terms of the note and mortgage between the parties and the objection is not well taken as to these fees.
A third objection is to fees in the amount of $100 paid to the bankruptcy attorney for filing the claim herein. This fee also appears to be contemplated by the note and mortgage between the parties and appears to be reasonable under the circumstances. This fee is allowable pursuant to the terms of the note and mortgage and is not objectionable.
IT IS THEREFORE ORDERED that the objection to claim filed herein be SUSTAINED only to the $830.50 in attorney=s fees as set forth above, and the claim should be, and it hereby is, ALLOWED as a secured claim in the amount $6,178.82 for pre-petition arrearages.
Dated this ____ day of April, 1997.
BY THE COURT
Paul Stewart Snyder, Esq.
Sidney N. White, Esq.
James E. Stierle, Esq.