Ramirez v. Fuselier (In Re Ramirez)

183 B.R. 583, 95 Cal. Daily Op. Serv. 5397, 95 Daily Journal DAR 8390, 1995 Bankr. LEXIS 813, 1995 WL 369482
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMay 25, 1995
DocketBAP No. SC-94-1160-JOF. Bankruptcy No. 93-07683-B13. Adv. No. 93-90601-B13
StatusPublished
Cited by61 cases

This text of 183 B.R. 583 (Ramirez v. Fuselier (In Re Ramirez)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramirez v. Fuselier (In Re Ramirez), 183 B.R. 583, 95 Cal. Daily Op. Serv. 5397, 95 Daily Journal DAR 8390, 1995 Bankr. LEXIS 813, 1995 WL 369482 (bap9 1995).

Opinions

OPINION

JONES, Bankruptcy Judge:

SUMMARY

Appellant, Henry M. Ramirez, Esq. (“Ramirez”), is an attorney practicing law in San Diego, California. To collect on a judgment against Ramirez, the appellee, Leonard Goldberg (“Goldberg”), a chiropractor whose [586]*586practice is also located in San Diego, obtained a writ of execution from the San Diego County Municipal Court on July 13, 1998. The writ placed a levy upon money and equipment in Ramirez’s law office. On July 15, 1993, Ramirez filed a Chapter 132 petition and served the levying officer with a bankruptcy stay order. To prevent the levying officer from violating the automatic stay, Ramirez filed a motion requesting that the San Diego County Municipal Court release the levy placed on his property. The Municipal Court denied the motion. The following day, after he had received notice of the automatic stay, the Marshal removed all property from Ramirez’s law office, including his client files. As a result of the receiver’s failure to turn over the client files, the removal of the client files from the premises, and the delays in the eventual return of the client files, Ramirez sought sanctions against the receiver. Ramirez filed a motion for order of contempt in violation of the automatic stay, which the bankruptcy court denied. Ramirez appeals.

BACKGROUND

Ramirez signed a medical lien while representing Goldberg’s patients in a personal injury action. Upon settlement of the action, the hen secured payment to Goldberg for services rendered to his patients. The parties to the action settled the lawsuit, however Ramirez never paid Goldberg. Goldberg consequently filed a complaint against Ramirez. Judicial arbitration resulted in an award for Goldberg. Ramirez then requested a trial, which resulted in a judgment for Goldberg. The trial court judgment was affirmed on appeal.

To collect on the judgment, Goldberg obtained a writ of execution from the San Diego County Municipal Court on July 13, 1993. The writ placed a levy upon all money, inventory and equipment related to Ramirez’s law firm. Realizing that an inventory of the premises would take several days, the Marshal installed Appellee, E.M. Arthur (“Arthur”), as keeper on Ramirez’s property on July 14, 1993.

On July 15, 1993, Ramirez filed a petition for relief under Chapter 13 and served Arthur with a bankruptcy stay order. In an effort to prevent Arthur from removing property, Ramirez filed a motion asking the San Diego County Municipal Court to release the levy placed on his property. On July 19, 1993, the Municipal Court denied Ramirez’s motion, holding that the Marshal obtained constructive possession when Arthur became keeper of Ramirez’s property. The Marshal refused to turn over the client files and, the following day, he removed all property from Ramirez’s office, including the client files. After some delay, the client files were eventually returned to Ramirez.

Ramirez filed a motion for order of contempt in violation of the automatic stay against Goldberg, Arthur and Goldberg’s attorney, Lowell R. Fuselier (“Fuselier”), in the Bankruptcy Court for the Southern District of California. In denying the motion, the bankruptcy court concluded that the defendants did not violate the automatic stay. Ramirez appeals, contending that the bankruptcy court abused its discretion in not finding Goldberg, Fuselier and Arthur in contempt of court. We REVERSE and REMAND.

STANDARD OF REVIEW

We review a bankruptcy court’s decision to deny a motion for contempt sanctions for an abuse of discretion. See In re Cascade Roads, Inc., 34 F.3d 756, 766-67 (9th Cir.1994) (remanding for bankruptcy court to exercise its discretion regarding the imposition of sanctions for contempt) (citing In re Chugach Forest Prods., Inc., 23 F.3d 241, 244 n. 4 (9th Cir.1994)); In re Goodman, 991 F.2d 613, 620 (9th Cir.1993) (stating that, on remand, the bankruptcy court should exercise its discretion in deciding whether to deny civil contempt sanctions; noting, however, that under Section 362(h) the award of damages is mandatory).

[587]*587The bankruptcy court’s findings of fact are reviewed for clear error, and the conclusions of law are reviewed de novo. In re Eastport Assoc., 935 F.2d 1071, 1079 (9th Cir.1991). Mixed questions of law and fact are reviewed de novo. In re Wade, 115 B.R. 222, 225 (9th Cir. BAP 1990), aff'd, 948 F.2d 1122 (9th Cir.1991). Statutory interpretation is reviewed de novo. Trustees of the Amalgamated Ins. Fund v. Geltman Indus., Inc., 784 F.2d 926, 929 (9th Cir.1986), cert. denied, 479 U.S. 822, 107 S.Ct. 90, 93 L.Ed.2d 42 (1986).

ISSUES

1. Whether the bankruptcy court erred in finding that the removal of the files and equipment to another location, from which they were eventually retrieved only with great difficulty and delay, did not violate the automatic stay.

2. Whether the seized property was part of Ramirez’s estate for purposes of the automatic stay after the Marshal completed its levy.

3. Whether the violation of the automatic stay warrants compensatory damages pursuant to Section 362(h).

4. Whether the violation of the automatic stay warrants punitive damages.

5. Whether Arthur, as levying officer, is immune from liability.

DISCUSSION

I. The Seizure of Client Files Violated the Automatic Stay

The automatic stay of Section 362 protects property of the estate in which the debtor has a legal, equitable or possessory interest. Interstate Commerce Comm’n v. Holmes Transp., Inc., 931 F.2d 984, 987 (1st Cir.1991). Legislative history indicates that property of the estate “includes charges on property, such as liens held by the debtor on property of a third party, or beneficial rights and interest that the debtor may have in property of another.” 124 Cong.Rec. 096 (Sept. 28,1978) (statement of Rep. Edwards), S. 17,413 (Oct. 6, 1978) (statement of Sen. DeConcini).

As recognized by the Ninth Circuit, the Section 362 automatic stay is a critical protection of bankruptcy law and quite broad in its scope:

It is designed to effect an immediate freeze of the status quo by precluding and nullifying post-petition actions, judicial or nonjudieial, in nonbankruptcy fora against the debtor or affecting the property of the estate. The automatic stay plays a vital and fundamental role in bankruptcy. The stay ensures that all claims against the debtor will be brought in a single forum, the bankruptcy court. The stay protects the debtor by allowing it breathing space and also protects creditors as a class from the possibility that one creditor will obtain payment on its claims to the detriment of all others.

Hillis Motors, Inc. v. Hawaii Automobile Dealers’ Ass’n, 997 F.2d 581, 585 (9th Cir.1993) (citations omitted).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kirk Freeland
D. Oregon, 2020
In re: Aki T. Oya
Ninth Circuit, 2019
In re Passa
578 B.R. 898 (D. Utah, 2017)
Eden Place v. Sholem Perl
811 F.3d 1120 (Ninth Circuit, 2016)
In re Highsmith
542 B.R. 738 (M.D. North Carolina, 2015)
In re Bourke
543 B.R. 657 (D. Montana, 2015)
In re Breul
533 B.R. 782 (C.D. California, 2015)
In re Hill
523 B.R. 704 (D. Montana, 2014)
Eden Place, LLC v. Perl (In Re Perl)
513 B.R. 566 (Ninth Circuit, 2014)
In re: Sholem Perl
Ninth Circuit, 2014
Cini v. Viscomi & Gersh, PLLP (In re Cini)
492 B.R. 291 (D. Montana, 2013)
Collect Access LLC v. Hernandez (In Re Hernandez)
483 B.R. 713 (Ninth Circuit, 2012)
In re: Smb Group, Inc.
Ninth Circuit, 2012
In Re Hernandez
468 B.R. 396 (S.D. California, 2012)
Copeland v. Kandi (In Re Copeland)
441 B.R. 352 (W.D. Washington, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
183 B.R. 583, 95 Cal. Daily Op. Serv. 5397, 95 Daily Journal DAR 8390, 1995 Bankr. LEXIS 813, 1995 WL 369482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramirez-v-fuselier-in-re-ramirez-bap9-1995.