A BANKRUPTCY BUGABOO
November 1, 2012 § 1 Comment
Bankruptcy, particularly Chapter 7 liquidation, used to be such a complicating factor in chancery court. Divorce trials were held up for years while one or both parties pursued their arcane remedies in the alchemy of bankruptcy. Contempts and modifications were brought to a screeching halt. Everyone knew and feared the “automatic stay,” even if most did not even understand its scope and reach.
And so it was that Ian Garcino, attempting to collect a divorce-related debt from his ex-wife, Amanda Noel, encountered the buzzsaw of bankruptcy and unwittingly suffered its bite.
In 2008, the chancery court awarded Ian a judgment against Amanda in the sum of $16,278, which the court ordered her to pay within 60 days. Amanda not only did not pay, but she filed a Chapter 7 bankruptcy petition.
Now, 11 USC § 523(a)(5), (15) excludes debts to spouses, ex-spouses, and children from the list of dischargeable matters. So Ian, no doubt out of an abundance of caution, penned a handwritten letter to the bankruptcy court advising the court that the debt in question arose out of a divorce property settlement between him and Amanda, and concluding that “Under applicable present bankruptcy laws this debt should not be discharged.”
The bankruptcy court treated Ian’s letter as a pleading initiating an adversary proceeding. That’s because, since 2005, the bankruptcy laws no longer require a party in Ian’s position to do anything, since the debt is in and of itself not dischargeable. When Ian filed his letter, he in essence put something into controversy that would have been beyond controversy had he done nothing.
Belatedly, Ian learned from a bankruptcy lawyer (who might have been able to give Ian some advice before he wrote the ill-fated letter) the folly of what he had done, but before Ian could take any action the bankruptcy court entered its order dismissing Ian’s proceeding due to his inaction.
Later, when Ian tried to execute on the judgment in chancery court, the chancellor granted a stay of execution finding that the debt was adjudicated to be discharged in bankruptcy court. Ian appealed.
In response to the appeal, Amanda raised two issues: One, that the chancery court lacked jurisdiction to adjudicate dischargeablility; and Two, that the bankruptcy court’s decision was res judicata on the issue of dischargeability, and was binding on the chancery court.
Judge Maxwell’s opinion in Garcino v. Noel, decided by the COA October 23, 2012, is one you should read for its exposition on the law of Chapter 7 bankruptcy vis a vis chancery practice. Here’s how the court disposed of the jurisdictional argument:
¶22. [Amanda’s] first suggested reason—that the chancery court lacked jurisdiction to make such a determination—is clearly wrong. “It is well established . . . that ‘bankruptcy courts and state courts maintain concurrent jurisdiction to decide exceptions to discharge arising under [section] 523(a)[.]’” Marvin v. Marvin, 659 S.E.2d 579, 581 (Va. Ct. App. 2008) (quoting Monsour v. Monsour (In re Monsour), 372 B.R. 272, 278 (Bankr. W.D. Va. 2007)). “Although only the bankruptcy court can decide whether to grant a discharge in bankruptcy, the effect of such a discharge may be determined by any court in which the issue is properly raised.” Burns v. Burns, 164 S.W.3d 99, 103 (Mo. Ct. App. 2005) (citing Timmons v. Timmons, 132 S.W.3d 906, 915 (Mo. Ct. App. 2004)); see also Rogers v. McGahee, 602 S.E.2d 582, 586 (Ga. 2004) (holding that “a general discharge in bankruptcy does not deprive the state court of its jurisdiction to determine whether certain debts of the debtor former spouse are exempt”) (citations omitted). [Footnote omitted]
The COA found, however, that the res judicata argument was dispositive. The court held that the four identities required for res judicata were present because Ian brought the same claim, that the debt had not been discharged, against the same party in both the chancery court and in the bankruptcy court. The court held at ¶ 26 that the bankruptcy court’s adjudication was one on the merits, making it binding on other courts.
There are several lessons you can take from this case: One is that you don’t need to blunder into bankruptcy court unless you know what you are doing and know the possible effects of your actions; Two, the burden now is on the Chapter 7 bankruptcy petitioner to convince the bankruptcy court to stay the judgment, not vice versa, so you may proceed in chancery as if there were no impediments; and Three, res judicata has teeth.
PS … as Judge Maxwell’s opinion points out, this post is relevant to Chapter 7 bankruptcy, but it has limited applicability, if at all, to Chapter 13 and other forms of bankruptcy.