Matter of Johnson
ORDER ON MOTION FOR CONTEMPT
THE MATTER undеr consideration is the plight of a frustrated Debtor who assumed that once a petition for relief was filed and the order for relief was entered, she was free from any further harassment by creditors and free from the oppressing pressures of the past.
Local Loan v. Hunt,
The facts germane to the matters under consideration are as follows:
On July 9, 1981, the Debtor, Joyce Johnson filed her voluntary petition in bankruptcy. On July 17, 1981, Gene Baxley (Baxley), the Debtor’s ex-husband filed his Statemеnt of Claim in Replevin in the Polk County Court and the Clerk of the Court prepared a notice of the claim in replevin directing the Sheriff to serve same upon thе Debtor. It appears that a notice of claim was served by the Sheriff on the Debtor on July 20, 1981. Counsel for the Debtor promptly filed a notice of pendеncy of the bankruptcy in the replevin action and also furnished a notice of the pendency of the bankruptcy to Baxley. In addition, the debtor also filеd an amendment to Schedule A-3 and listed Baxley as an unsecured creditor and it is without dispute that the bankruptcy notice was posted on the judgment and dockеt book in the County Court.
On August 5, 1981, the County Court scheduled a hearing in a replevin action for 10:00 a. m. It so appears that the § 341 meeting of creditors of the Debtor was also scheduled on the same date and at the same time. As a result of a hearing in the State Court which was held without the presence of the debtor or her аttorney, the Court issued a writ of replevin which was served by the Sheriff on the Debtor on August 5, 1981. On August 7, 1981, the County Court issued an order to show cause ordering the Debtor to appear before the County Court for August 19, 1981, but this was continued on the Court’s own motion and rescheduled for September 17, 1981.
It appears from the statement of counsel for the Debtor that the presiding judge in the County Court stated that in his opinion the pendency of the bankruptcy proceeding presents no obstacles to prоceeding with the replevin action inasmuch as the automatic
Considering this latter proposition first, it is clear that what are “properties of the estate” is not a matter to be determined with reference to the schedules filed by the Debtor and whether or not an item of property was scheduled by the Debtor and without significance. Thus, the fact that an item was scheduled by the Debtоr as part of his assets obviously does not necessarily mean that the particular item is property of the estate. By the same token, the fact that thе Debtor did not schedule an item as a property does not mean the particular item is not in fact, “property of the estate.” To acceрt this latter proposition would obviously compel one to accept the proposition that willful concealment or negligently omitted and non-sсheduled properties are not properties of the estate. The absurdity of this proposition needs no extended discussion or support by citation of authorities.
It is equally evident that even a mere possessory interest is sufficient to invoke the protection of the automatic stay. Thus,' lien holders or сhattels which are properties of the estate may not, without leave of the bankruptcy court, declare a lease forfeited and recоver the leased chattels with self-help or with non-bankruptcy judicial assistance without first applying and obtaining a relief from the automatic stay from the bankruptcy court where the case is pending. Section 362(a)(2) makes it clear that the petition operates as a stay of “the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case ...” From all this it follows that after the intervention of bankruptcy, what is and what is not property of the estate is not a matter to be determined by a non-bankruptcy forum and no one can litigate this question in a non-bankruptcy forum without violating the automatic stay and without being found in contempt and punished accordingly, unless he first obtains relief from the automаtic stay.
Fidelity Mortgage Investors v. Camelia Builders, Inc.,
This being the case, there is hardly any doubt that any action taken by the respondent was a violation of the automatic stay and any action taken by the non-bankruptcy forum is a legal nullity.
This leaves for consideration the question of contempt. The respondent is a layman and proceeded in the non-bankruptcy forum without aid of counsel; he appeared to have relied, although mistakenly, on the state cоurt’s clearly erroneous statements that the automatic stay does not apply to in rem actions or does not protect unscheduled properties. In light of this, the element of intentional willfulness is lacking and under these circumstances, a finding of contempt and a punishment for same would not be warranted at this timе. cf. Fidelity Mortgage Investors, supra. This does not mean, however, that the respondent is free to pursue the Debtor either using self-help or through the use of judicial assistance without first obtaining а relief from the automatic stay. On the contrary, any further action taken against the Debtor or properties in the Debtor’s possession and under her cоntrol would, clearly be a contempt and would be dealt with accordingly. In order to assure that this will not occur, the respondent is ordered to move forthwith in the state court for the dismissal of the replevin action as a condition precedent to the dismissal of this contempt proceeding.
The Debtor alsо seeks the punishment of contempt against the presiding judge. This
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Contempt filed against Gene Baxley by the above-named Debtor be, and thе same hereby is, denied provided the respondent, Gene Baxley procures a dismissal of the replevin action now pending in the Polk County Court against Joyce Johnson within 15 days from the date of entry of this order and further provided that .the respondent, Gene Baxley, tenders the property seized by the Sheriff to the Debtоr or to the counsel for the Debtor within 15 days from the date of entry of this order. It is further
ORDERED, ADJUDGED AND DECREED that in the event Gene Baxley fails to comply with these provisions, this Court will recоnsider the motion and enter an appropriate order. It is further
ORDERED, ADJUDGED AND DECREED that the Motion for Contempt directed against County Judge Maloney be, and the same hereby is, dismissed with prejudice.