How to stop a debtors exam in small claims court
Posted: Thu Dec 06, 2012 11:19 am
As disgusting a story as I've heard in a long time.
I loved David's idea, so just for the hell of it, I googled "commisioner judicial immunity" real quick and landed on some case which happened to be a Ninth Circuit case. Here is an excerpt. Again, this was extremely cursory, and I haven't looked up any of the cases here. I'd hardly call it research. However, it looks like you apparently have to come in under one of two exceptions.
"Means' complaint against Commissioner Brandenburg arises out of a hearing the Commissioner conducted in a small claims case. Appellant argues that "California Commissioners are not judges" and thus are not entitled to judicial immunity. We reject this claim. This circuit's law makes clear that judicial immunity extends to municipal court commissioners. O'Neil v. City of Lake Oswego, 642 F.2d 367, 368 n. 2 (9th Cir.1981) (pro tem municipal court judge); cf. Sherman v. Babbitt, 772 F.2d 1476 (9th Cir.1985) (justice of the peace).1
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Neither of the exceptions to the doctrine of judicial immunity apply in this case. See Stump v. Sparkman, 435 U.S. 349, 356-61 (1978); Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir.1986). Commissioner Brandenberg neither acted in "clear absence of jurisdiction" nor engaged in "non-judicial acts" when, in disposing of Means' claims, he 1) advised the defendants to file a malicious prosecution claim against Means and 2) ruled against Means on res judicata grounds. Certainly a judge is free to comment on the record that the case before him or her appears frivolous or without basis. By "advising" the Schoenbergs to file a malicious prosecution suit against Means, Commissioner Brandenburg did just that."
I hate this stuff, because it is not all too infrequent (a state court judge ignoring the bankruptcy law)
Todd Mannis, Esq.
>
> Nancy:
>
> You can do pretty much whatever you want. If you provide the information, the creditor cannot do anything with it. If you don't provide the information, there is not much the creditor or the commissioner can do about it. If they try, they just dig themselves into a deeper hole on the automatic stay violation. By the way, did you also name the commissioner as a potential contemnor? Give that some thought.
>
> You might want to point out to the commissioner that "judges" have judicial immunity but that you are not sure about the scope of immunity conferred on "commissioners". They probably have it, but I don't know for sure and I am betting the commissioner won't know either. Even if the commissioner does have immunity, you may have an argument that this exceeds the boundaries of the immunity and you force the commissioner to incur legal fees defending him/herself in the contempt matter in the bankruptcy case. You might then also suggest that perhaps it would be prudent to transfer this case to one of the judges.
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> I would not permit the client to attend without representation, i.e. an attorney. I don't care if it is a small claims matter.
>
> David A. Tilem
> Law Offices of David A. Tilem
> 206 N. Jackson St., #201
> Glendale, CA 91206
> Tel: 818-507-6000 * Fax: 818-507-6800
> www.TilemLaw.com
>
nancybonaccorso
> Sent: Thursday, December 06, 2012 10:37 AM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] How to stop a debtors exam in small claims court
>
>
>
> So, debtor filed a chapter 13. While in the chapter 13 an individual sued debtor is small claims court in violation of the automatic stay. The individual gets a default judgment against the debtor. Debtor's chapter 13 was dismissed but he refiles with us. We find out about the small claims lawsuit and file a notice of the bankruptcy filing. The commissioner ignores the notice and orders a debtors exam. The debtor appears for the debtors exam and explains that a bk has been filed. The commissioner continues the debtor's exam to Dec. 5. We file a motion on shortened time in BK court to compel/sanction against the creditor. The BK court denies the motion for shortened time and schedules the Motion to Compel/Sanctions for Dec. 12. Yesterday, at the debtors exam hearing yesterday, the commissioner says that she does not care that the bk was filed. As far as she is concerned, creditor got a default before the bk was filed so the stay does not apply, she demands that the debtor provide his bank account information by tommorrow. What do I do?
>
> Thank you,
> Nancy B. Clark
> Borowitz & Clark, LLP
> 100 N. Barranca Avenue, Suite 250
> West Covina, CA 91791
> Office: (626) 332-8600
> Fax: (626) 332-8644
> www.blclaw.com
>
The post was migrated from Yahoo.