Nash v. Clark County District Attorney's Office (In Re Nash)
464 B.R. 874
| 9th Cir. BAP | 2012Background
- Nash filed Chapter 7 on Aug 27, 2009; discharge granted Jan 20, 2010.
- Nash owed Hard Rock marker debt around $13,876; Hard Rock and the DA pursued collection activity pre- and post-petition.
- Criminal proceedings were pursued in Nevada; a settlement was reached with the DA for monthly payments starting 2011.
- Nash filed an adversary proceeding May 26, 2010 seeking declaratory relief and sanctions for discharge-injunction violations.
- Bankruptcy court granted declaratory relief but denied sanctions against Hard Rock and the DA; judgment entered Jan 19, 2011.
- Nash appeals, arguing discharge injunction violations and requesting sanctions; Barrientos decision during appeal informs procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hard Rock violated the discharge injunction. | Nash asserts post-discharge collection activity violated §524(a). | Hard Rock argues no post-discharge actions violated the injunction. | No violation by Hard Rock; no post-discharge coercive acts by Hard Rock. |
| Whether the DA violated the discharge injunction. | Nash contends DA’s actions after discharge violated §524(a). | DA argues prosecutorial discretion and lack of coercive action; Gruntz governs." | No sanctions against the DA; Gruntz analysis supports non-interference with state prosecution. |
Key Cases Cited
- In re Gruntz, 202 F.3d 1074 (9th Cir. 2000) (prosecutorial discretion; noninterference of bankruptcy with state criminal proceedings; stay vs. discharge context broader than stay)
- ZiLOG, Inc. v. Corning, 450 F.3d 996 (9th Cir. 2006) (requires showing creditor knew discharge injunction applied and intended actions violating it)
- Barrientos v. Wells Fargo Bank, N.A., 633 F.3d 1186 (9th Cir. 2011) (contempt for discharge injunction must be pursued via proper procedure; context of Barrientos discussed)
- Espinosa v. United Student Aid Funds, Inc., 553 F.3d 1193 (9th Cir. 2008) (burden to prove discharge-injunction violation by clear and convincing evidence; intent and knowledge required)
- In re Reinertson, 241 B.R. 451 (9th Cir. BAP 1999) (sanctions standard under §105(a) abuse of discretion)