In re Johnson

521 B.R. 912, 2014 Bankr. LEXIS 5028, 2014 WL 7013961
CourtUnited States Bankruptcy Court, W.D. Arkansas
DecidedOctober 28, 2014
DocketNo. 5:13-bk-70187
StatusPublished
Cited by4 cases

This text of 521 B.R. 912 (In re Johnson) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Johnson, 521 B.R. 912, 2014 Bankr. LEXIS 5028, 2014 WL 7013961 (Ark. 2014).

Opinion

ORDER

BEN BARRY, Bankruptcy Judge.

Before the Court is a Motion For Contempt filed by the debtor on August 7, 2014, against creditor Arkansas Department of Workforce Services [DWS]. In his motion, the debtor alleges that DWS violated the Court’s discharge order dated April 23, 2013, by obtaining and refusing to return the debtor’s tax refunds for the 2012 tax year. DWS filed its Amended Response to Motion For Contempt on August 20, 2014. The Court heard the motion and response on October 1, 2014. At the conclusion of the hearing, the Court took the motion under advisement. The Court has jurisdiction over this matter under 28 U.S.C. § 1334 and 28 U.S.C. § 157, and it is a core proceeding under 28 U.S.C. § 157(b)(2)(0). The following order constitutes findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052, made applicable to this proceeding under Federal Rule of Bankruptcy Procedure 9014. For the reasons stated below, the debtor’s motion for contempt is denied.

BACKGROUND

The following background facts come, generally, from the undisputed allegations contained in the debtor’s motion and DWS’s response to that motion. The debtor, filed his voluntary chapter 7 bankruptcy petition on January 18, 2013. In his petition, the debtor “nominally listed” DWS as a creditor with an address of P.O. Box 8090 in Little Rock, Arkansas. The correct address for DWS is P.O. Box 8060 in Little Rock.1 The debtor also listed his [915]*915anticipated 2012 tax refunds on his petition and claimed a corresponding exemption for the refunds. The trustee entered his report of no distribution on February 19, 2013, and the Court entered its order of discharge on April 23, 2013.

The debtor scheduled DWS in his bankruptcy schedules as a secured creditor having a lien on miscellaneous personal property with a secured claim of $4369.06 and a total claim of $8823.00. The claim is based on a discrepancy between income the debtor reported to DWS and income the debtor’s employer reported to DWS. On February 6, 2013, pursuant to an Arkansas statute and in partial satisfaction of its claim, DWS received from the U.S. Department of Treasury the sum of $3211.00, which was the entire amount of the debtor’s 2012 federal tax refund. Later that same month, DWS received an additional $136.00, representing the debt- or’s entire 2012 state tax refund. DWS has declined to forward the money it received from the governmental agencies to the debtor, resulting in the present motion for contempt filed by the debtor.

ARGUMENTS OF THE PARTIES

The debtor filed his motion for contempt against DWS for violation of the discharge injunction by failing to return the money that was forwarded to DWS as partial recompense for a pre-petition obligation. The debtor’s argument is based on what he calls the “no-asset rule.” According to the debtor, even though DWS may not have received notice of the debtor’s bankruptcy case, because the debtor’s case was a no-asset case, there would not be a time limit for creditors to file a claim. In that instance, § 523(a)(3)(A) — the section that provides that a creditor’s claim is non-dischargeable if the creditor did not receive notice of the filing — would not be applicable. The debtor recognizes that subsection (a)(3)(B) is an exception to the “no-asset rule,” but argues that in order for subsection (a)(3)(B) to apply, there would first have to be a judicial determination of fraud, and that would require a court hearing. The debtor believes that as soon as DWS learned of the debtor’s discharge, it should have forwarded to the debtor the funds it had received and then filed an adversary proceeding to determine the dischargeability of its debt. The debt- or also argued that because the debtor’s prior counsel had an incorrect address in his Best Case® database for the “nominally listed” DFS, the debtor should not be held accountable that the debtor’s notice of bankruptcy filing went to the wrong address. Finally, although not argued at the hearing, the debtor also suggests in his motion for contempt that the address of DWS listed by the debtor on his petition was sufficient because ADFA is closely related to the DWS both geographically and in terms of governmental hierarchical organization.

The creditor, DWS, simply argued that it should have been notified of the debtor’s bankruptcy filing and given the opportunity to file an adversary proceeding to determine the dischargeability of its debt under § 523(a). It argued that it did not receive notice through ADFA’s post office box number even though DWS was listed as a creditor in the debtor’s case. The parties stipulated that there was an administrative finding of fraud based on a discrepancy between income reported by the debtor and income reported by the debtor’s employer. Based on this administrative finding, DWS argued that § 523(a)(2)(A) is applicable and the Court should find that [916]*916the debtor’s debt to DWS is nondischargeable.

CONCLUSIONS OF LAW

Section 727 provides that, except as provided in § 523 of the code, a discharge under § 727(a) “discharges the debtor from all debts that arose before the date of the order for relief....” 11 U.S.C. § 727(b). Additionally, § 524 establishes a discharge injunction that “operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor....” 11 U.S.C. § 524(a)(2). The purpose of the injunction is to “ ‘ensure that once a debt is discharged, the debtor will not be pressured in any way to repay it.’ ” Everly v. 4745 Second Ave., Ltd. (In re Everly), 346 B.R. 791, 795 (8th Cir. BAP 2006) (quoting H.R.Rep. No. 95-595 1st Sess. 365-368 (1977)). Section 523 lists debts that are excepted from discharge and for which the discharge injunction does not apply. Of the nineteen debts listed under § 523(a), all but three of the debts are self-effectuating. In other words, “[t]he debts are excepted from discharge simply because of the nature of the debts.” Id. The three exceptions are sometimes referred to as the “fraud” debts and are debts of the kind listed under § 523(a)(2), (4), and (6). For this type of debt, the creditor has the additional requirement to file a complaint to determine the dischargeability of the debt within 60 days of the date first set for the debtor’s meeting of creditors. Fed. R. Bankr. P. 4007(c). If the creditor fails to file a timely complaint, the debt is no longer excepted from discharge.

The scope of the discharge is final when the court enters its order of discharge, and subsequent events cannot alter the determination that a debt either was or was not discharged. In re Everly, 346 B.R. at 795.

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Cite This Page — Counsel Stack

Bluebook (online)
521 B.R. 912, 2014 Bankr. LEXIS 5028, 2014 WL 7013961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-johnson-arwb-2014.