Gaston v. New Century Finance, L.L.C. , 85 F. App'x 359 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
December 23, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk
for the Fifth Circuit
_______________
m 03-40608
Summary Calendar
_______________
IN THE MATTER OF:
BOB GASTON, JR., AND NELDA GASTON,
Debtors.
BOB GASTON, JR., AND NELDA GASTON,
Appellants,
VERSUS
NEW CENTURY FINANCE, L.L.C.; BRUCE HOULE;
AND BANCORP GROUP, INC.,
Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m M-01-CV-21
_________________________
Before SMITH, DEMOSS, and STEWART, II.
Circuit Judges. The district court saw no error in the bank-
ruptcy court’s findings with regard to the
PER CURIAM:* terms of the lease and that there was no viola-
tion of the DTPA. On this appeal, the Gastons
Bob and Nelda Gaston appeal an adverse do nothing more than restate their allegation
ruling on their numerous claims against New that New Century violated the act. We see no
Century Finance, L.L.C. (“New Century”), error in the district court’s holding in this
Bruce Houle, and Bancorp Group, Inc. (“Ban- regard.
corp”) arising from Bob Gaston’s lease of a
laptop computer shortly before his bankruptcy, III.
and attempts by New Century and Bancorp to The district court correctly decided that
collect the lease payments owed them and to there was no clear error in the bankruptcy
recover the computer after Gaston’s default. court’s finding that there was neither a show-
In an adversary proceeding before the bank- ing of outrageous conduct on the part of the
ruptcy court, the Gastons sued for (1) viola- defendants nor a showing that their conduct
tions of the automatic stay required by the caused physical harm. Both are required to
Bankruptcy Code; (2) common law unfair state a cause of action for unfair debt col-
collection practices; (3) violation of the Texas lection practices.
Deceptive Trade Practices Act (“DPTA”);
(4) malicious prosecution; (5) abuse of pro- IV.
cess; (6) usury; and (7) libel. To state a claim for malicious prosecution,
the plaintiff must show: “(1) the commence-
Our review is of the district court’s affirm- ment of a criminal prosecution against the
ance of the bankruptcy court, so we apply the plaintiff; (2) causation (initiation or procure-
same standards of review as did the district ment) of the action by the defendant; (3) ter-
court. The bankruptcy court’s findings of fact mination of the prosecution in the plaintiff's fa-
are reviewed for clear error and its conclusion vor; (4) the plaintiff's innocence; (5) the ab-
of law de novo. In re Coho Resources, Inc., sence of probable cause for the proceedings;
345 F.3d 338 (5th Cir. 2003). (6) malice in filing the charge; and (7) damage
to the plaintiff.” Richey v. Brookshire Gro-
I. cery Co., 952 S.W.2d 515 (Tex. 1997). The
The district court properly held that truth is district court found no error in the bankruptcy
an absolute defense to a libel claim. It was al- court’s ruling that the defendants were entitled
so correct in determining that the bankruptcy to summary judgment. There is nothing in the
court’s finding was not clearly erroneous. record to indicate that this was error or that
New Century did not have probable cause and
act reasonably.
V.
*
Pursuant to 5TH CIR. R. 47.5, the court has As the district court found, an abuse of pro-
determined that this opinion should not be pub- cess claim must show an improper use of pro-
lished and is not precedent except under the limited cess after its issuance, not merely its procure-
circumstances set forth in 5TH CIR. R. 47.5.4.
2
ment. Snyder v. Byrne, 770 S.W.2d 65 (Tex. clearly erroneous.
App.SSCorpus Christi 1989, no writ). There
is no evidence to challenge the bankruptcy IX.
court’s finding that no actionable conduct oc- The bankruptcy court concluded that Bob
curred after process was issued. Therefore, Gaston had converted the laptop that was
summary judgment was proper. owned by New Century. It also decided that
the value of the laptop at the time of conver-
VI. sion was $1,400 and awarded that amount as
The district court was correct in stating that damages to New Century. There is nothing to
a claim of usury is inapplicable in a lease trans- indicate that the bankruptcy court’s findings of
action. Maloney v. Andrews, 483 S.W.2d 703 fact were clearly erroneous or that its con-
(Tex. Civ. App.SS1972, writ ref’d n.r.e.). The clusions of law were incorrect.
bankruptcy court found that the lease in ques-
tion was a true lease and therefore does not AFFIRMED.
provide t he basis for a usury claim. This
finding is not erroneous.
VII.
After a trial, the bankruptcy court made de-
tailed findings of fact and conclusions of law.
The district court was correct in stating that
there is no indication of clear error in the
bankruptcy court’s findings that (1) Bancorp
committed no willful or knowing violations of
the automatic stay, because it lacked knowl-
edge of the bankruptcy, and that even if it did
have knowledge, the Gastons failed to prove
that they suffered actual damages as a result;
and (2) New Century committed one knowing
violation of the automatic stay, for which the
Gastons were damaged in the amount of
$621.01.
VIII.
The Gastons seek $140,000 in attorney’s
fees and $16,000 for costs. After trial, the
bankruptcy court found that reasonable fees
were $3,000. It also stated that Bob Gaston’s
hands were not clean, that his counsel’s
“[s]corched earth tactics are inappropriate,”
and that § 362 is not a blank check for plain-
tiffs and their counsel to run up fees. There is
no indication that any part of this finding is
3