Case Number: GC021546 Hearing Date: May 16, 2014 Dept: A

Edward C. Turrentine Interior Design v Alfieri

MOTION FOR RELIEF FROM ORDERS

Calendar: 16
Case No: GC021546
Date: 5/16/14

MP: Defendant, Dennis Alfieri
RP: Plaintiff, Edward C. Turrentine Interior Design, Inc.

RELIEF REQUESTED:
1. Order granting Defendant leave to file opposition to the Plaintiff’s request for a turnover of personal property.
2. Order to recall and quash the bench warrant issued for the Defendant.

DISCUSSION:
This case arose from the Plaintiff’s claim that the Defendant did not pay it for labor and materials. The Defendant did not respond to the service of summons and a default judgment was entered in favor of the Plaintiff and against the Defendant on January 13, 1999. The Plaintiff filed a notice of renewal of the judgment on November 4, 2008.

This hearing concerns the Defendant request for relief under CCP section 473(b) from orders issued on April 18, 2014. The Plaintiff has been attempting to enforce the judgment by obtaining information at judgment debtor’s examinations.
The Plaintiff set a judgment debtor examination for November 22, 2013. The Plaintiff and counsel appeared, but the Defendant did not appear. Accordingly, the Court continued the judgment debtor examination to January 3, 2014 and issued a $20,000 bench warrant, but ordered it held until January 3, 2014.
At the judgment debtor hearing on January 3, 2014, the Defendant again failed to appear. The Court continued the hearing to April 18, 2014 and ordered that the bench warrant would be held until April 18, 2014.
At the judgment debtor hearing on April 18, 2014, the Defendant again failed to appear. The Court released the bench warrant. Further, the Court took the Plaintiff’s request for a turnover of the Defendant’s personal property under submission. The Defendant seeks relief from the orders issued on April 18, 2014.

A review of the Court file reveals that the Plaintiff created the lien on October 31, 2013. The Plaintiff filed a proof of service on November 21, 2013 that includes facts establishing that the Plaintiff served the order to appear for the judgment debtor examination by personal service on the Defendant on October 31, 2013. Accordingly, the Plaintiff has a one year ORAP lien under CCP section 708.110(d) on the personal property of the Defendant that lasts through October 31, 2014.
Further, at the conclusion of the April 18, 2014 hearing on the judgment debtor examination, the Plaintiff applied for a turnover order under CCP section 708.205, i.e., an order that specific identified personal property be applied to the satisfaction of the judgment. The Court took the motion under submission. In addition, the Court released the bench warrant for the Defendant that it had held since November 22, 2013.

The Defendant seeks relief from the April 18, 2014 orders on the ground that they were entered through the mistake of his counsel. But the court does not reach these issues.
The Defendant filed his petition for bankruptcy on March 17, 2009. The proceeding was closed on May 25, 2010. Closing merely indicates that the bankruptcy proceeded is complete and is awaiting a discharge. However, no bankruptcy discharge was issued because the Defendant’s bankruptcy attorney neglected to file a required certificate.

In light of the lack of a discharge, the Plaintiff renewed the judgment and began to enforce it last year. This caused the Defendant to discover that there was no bankruptcy discharge in the bankruptcy proceeding. The Defendant then re-opened the bankruptcy proceeding and obtained the bankruptcy discharge on January 6, 2014.

The Defendant’s May 9, 2014 filing includes the bankruptcy schedule in untabbed exhibit C. The schedule indicates that the Plaintiff, Edward C. Turrentine Interior Design, Inc., holds a secured claim with a judgment lien for $151,589.16 (see schedule D, page 10 of 43 in petition, tabbed with a yellow post-it). The bankruptcy discharge issued on January 6, 2014 is in untabbed exhibit B. Accordingly, the bankruptcy discharge applied to the Plaintiff’s judgment because the Defendant listed the Plaintiff as a creditor in his schedule.

Under 11 USC section 524, the bankruptcy discharge voids the Plaintiff’s judgment and operates as an injunction against the commencement or continuation of any action, the employment of process, or an act to collect, recover, or offset the debt. This indicates that the Plaintiff’s judgment is a nullity and cannot be enforced. Lone Star Sec. & Video, Inc. v. Gurrola (In re Gurrola), (BAP 9th Cir. 2005) 328 B.R. 158, 164. The discharge of the judgment renders the Court without personal or subject matter jurisdiction over the matter and the discharge is an absolute, non-waivable defense to any enforcement of the underlying debt. Id. at 164, 165, and 170.

The Plaintiff’s attempt to use the ORAP lien to enforce the judgment is barred because the discharge prevents any act to enforce the judgment. Since the ORAP lien is a lien to collect the judgment, it became a nullity on January 6, 2014 when the bankruptcy discharge was issued.

Based on this evidence that the Defendant obtained a bankruptcy discharge of the judgment, the court will issue the following orders:

1) recall and quash the bench warrant for the Defendant because the court had no personal jurisdiction over the Defendant in light of the January 6, 2014 discharge of the judgment;
2) deny the Plaintiff’s applications for turnover orders that are under submission because the discharge bars the Plaintiff from any act to collect the debt;
3) the court will set an OSC regarding expungement of the ORAP lien as a nullity in light of the bankruptcy discharge entered on January 6, 2014; and
4) take the Defendant’s motion for relief off calendar as moot.