In Re Stutzman

151 B.R. 428, 1992 Bankr. LEXIS 2241, 1992 WL 450736
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedDecember 9, 1992
Docket19-11136
StatusPublished
Cited by1 cases

This text of 151 B.R. 428 (In Re Stutzman) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Stutzman, 151 B.R. 428, 1992 Bankr. LEXIS 2241, 1992 WL 450736 (Ohio 1992).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Debtors’ Motion for Contempt and Society National Bank’s (hereafter “SNB”) Response and Memorandum in Support of Dismissal of Contempt. The Court has reviewed the written arguments of counsel, supporting affidavits, and exhibits, as well as the entire record in the case. Based upon that review, and for the following reasons, SNB is found in contempt. Debtors’ payment of Five Hundred Forty and 00/100 Dollars ($540.00) shall be credited toward any outstanding balance due pursuant to this Court’s Orders of March 23, 1992 and August 17, 1992. Any amounts exceeding the balance due shall be returned to Debtors.

FACTS

On October 28, 1987, Debtors executed a direct installment note with Toledo Trust in the amount Fifteen Thousand Six Hundred Eight and 63/100 Dollars ($15,608.63) for the purchase of a 1987 Chevrolet Conversion Valley Van (hereafter “Chevrolet Van”). Toledo Trust obtained a security interest in the Chevrolet Van for the amount of the note. Subsequently on May 10, 1988, Debtors executed with Trustcorp Bank (hereafter “Trustcorp”) a direct installment note in the amount of Eight Thousand Seven Hundred Seventy Three and 00/100 Dollars ($8,773.00) for the purchase of a 1987 Chevrolet Cavalier. Trust-corp obtained a security interest of Ten Thousand Nine Hundred Thirty Four and 88/100 Dollars ($10,934.88) in the Chevrolet Cavalier. The indebtedness with Toledo Trust and Trustcorp has been assigned to SNB.

SNB took possession of the Chevrolet Van on December 30, 1991. Debtors filed for relief under Chapter 13 of the United States Bankruptcy Code on January 3, 1992. On February 21, 1992, SNB filed a Motion for Relief From Stay and Application for Abandonment. A Trial on the merits of SNB’s motion was convened on March 19, 1992. During this Trial, SNB estimated that the storage and repossession costs total approximately Two Hundred Fifty and 00/100 Dollars ($250.00). On March 23, 1992, this Court Ordered the following: (1) that SNB’s expenses of Two Hundred Fifty Dollars ($250.00) be paid through the Chapter 13 Plan as pre-petition arrearages; (2) that Debtors pay the costs of title transfer; (3) that Debtors remit two (2) payments by Friday, March 20,1992; (4) that Debtors remit an additional two (2) payments by April 12, 1992; (5) that Debtors remain current on future payments and insurance; and (6) that SNB return the 1987 Van to Debtors.

Debtors remitted Five Hundred Forty and 00/100 Dollars ($540.00). SNB failed to return the Chevrolet Van so Debtors filed a Motion for Contempt against SNB on April 16, 1992. SNB was duly notified in accordance with Bankruptcy Rule 9020 *430 and the Trial was held on May 4, 1992. This Court Ordered SNB to file an amended Proof of Claim; the parties to submit written stipulations as to the issue of abandonment; and the matter of contempt to be taken under advisement. On May 18, 1992, an Order was filed granting SNB relief from stay and abandoning the Chevrolet Van from the estate.

SNB filed an additional Application for Abandonment and Motion for Relief from Stay on July 27, 1992 regarding Debtors’ 1987 Chevrolet Cavalier. A Request for Hearing was filed by SNB on August 5, 1992 and the Trial was convened on August 17, 1992. This Court Ordered that Debtors pay the sum of Nine Hundred Three and 91/100 Dollars ($903.91) within forty-five (45) days toward the debt for the 1987 Chevrolet Cavalier. This Court further Ordered counsel to file briefs within thirty (30) days regarding application of the Five Hundred Forty and 00/100 Dollars ($540.00) to the debt on the Chevrolet Van or the Chevrolet Cavalier. On August 27, 1992, Debtors filed a Contempt Statement. SNB responded by filing a Response to Contempt Statement of Debtor and Memorandum in Support of Dismissal of Contempt on September 4, 1992.

LAW

The relevant law in this case is set forth in 11 U.S.C. § 105 and Bankruptcy Rule 9020. These sections read as follows:

§ 105. Power of court.
(a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary to appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
Rule 9020. Contempt Proceedings.
(b) Other Contempt. Contempt committed in a case or proceeding pending before a bankruptcy judge, except when determined as provided in subdivision (a) of this rule, may be determined by the bankruptcy judge only after a hearing on notice. The notice shall be in writing, shall state the essential facts constituting the contempt charged and describe the contempt as criminal or civil and shall state the time and place of hearing, allowing a reasonable time of the preparation of the defense. The notice may be given on the court’s own initiative or on application of the United States attorney or by an attorney appointed by the court for that purpose. If the contempt charged involves disrespect to or criticism of a bankruptcy judge, that judge is disqualified from presiding at the hearing except with the consent of the person charged.

DISCUSSION

There are four issues before this Court. First, whether SNB is guilty of contempt for failing to return the 1987 Chevrolet Van to Debtors as Ordered by this Court on March 23, 1992. Second, if SNB is guilty of contempt, what sanctions are applicable. Third, whether the payment made by Debtors totalling Five Hundred Forty and 00/100 Dollars ($540.00) should be applied to the payment on the Chevrolet Van or Chevrolet Cavalier. Fourth, whether Debtors are obligated to make payments toward repossession and storage costs. Although Trials were held on the issues individually, all issues have been consolidated for purposes of this Memorandum Decision and Order.

Civil contempt is predicated on a refusal to do a commanded act as distinguished from commission of a prohibited act. 71 B.R. 36 (N.D.Tex.1987) (citing Skinner v. White 505 F.2d 685 (5th Cir.1974)). An order of civil contempt is conditional and may be purged. Skinner, at 688-689. An alleged contemnor must have knowledge of the order on which civil contempt is to be based. Kellogg, (citing Douglass v. First Nat’l Realty Corp., 543 F.2d 894 (D.D.C.1976)). Intent or good faith is irrelevant and the requisite level of knowledge is not high. Kellogg, (citing *431 McComb v. Jacksonville Paper Co., 336 U.S. 187, 69 S.Ct. 497, 93 L.Ed. 599 (1949)).

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Cite This Page — Counsel Stack

Bluebook (online)
151 B.R. 428, 1992 Bankr. LEXIS 2241, 1992 WL 450736, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-stutzman-ohnb-1992.