UNITED
STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division
In Re: Kenneth Nelson Barnette,
]
]
Case No. 90-32290-T
Debtor. ]
Chapter 7
OPPOSITION TO DEBTOR=S
MOTION TO REOPEN
Comes
now [judgment creditor]and Thomas H. Roberts, Esq., by and through
their counsel, Steven Chaplin, Esq. and opposes the motion of the
debtor to reopen his case for the purpose of filing a motion for
contempt against [judgment creditor] and Thomas H. Roberts, Esq., on
the grounds that the motion to reopen and the proposed motion for
contempt are without basis in law and in fact.
FACTS & LAW
Kenneth
Nelson Barnette, an individual debtor, caused personal injuries to
[judgment creditor] by the unlawful operation of a motor vehicle,
driving while intoxicated and under the influence of alcohol and
cocaine on November 27, 1989. The
debtor admitted to driving while intoxicated.
(Exhibit 1 - Circuit Court Order; Exhibit 2 - Police Officer=s
Notes). Driving or
operating a motor vehicle while under the influence of alcoholic
beverages or other self-administered intoxicants and/or drugs is
unlawful in Virginia. Va.
Code 14.1-1. 11 U.S.C.
523(a)(9) specifically excepts debts arising from intoxicated driving
from discharge.
'
523. Exceptions to
discharge.
(a)
A discharge under section 727, 1141, 1228(a), 1228(b), or
1328(b) of this title does not discharge an individual debtor from any
debt--
...
(9) for death or personal injury caused
by the debtor=s
operation of motor vehicle if such operation was unlawful because the
debtor was intoxicated from using alcohol, a drug, or another
substance....
11 U.S.C. 523(a)(9)
The
bankruptcy discharge does not discharge the obligations to the debtor
arising from the unlawful operation of the motor vehicle which
resulted in personal injuries to [judgment creditor].
No relief from stay is necessary to enforce the obligations
against a discharged debtor.
'
523(c)(1) Except as
provided in subsection (a)(3)(B) of this section, the debtor shall be
discharged from a debt of a kind specified in paragraph (2), (4), (6),
or (15) of subsection (a) of this section, unless, on request of the
creditor to whom such debt is owed, and after notice and a hearing,
the court determines such debt to be excepted from discharge under
paragraph (2), (4), (6), or (15), as the case may be, of subsection
(a) of this section.
11 U.S.C. '
523(c)(1).
Noticeably
absent from the foregoing itemized list of exceptions which require a
notice and a hearing in bankruptcy court to determine whether or not
the debt is excepted is paragraph (9).
On November 15, 1990, the debtor was Areleased
from all dischargeable debts@.
(Exhibit 3 - Order of Discharge, emphasis added).
Only judgments obtained in other courts after the discharge
with respect to debts dischargeable under 11 U.S.C. '
523 are null and void. (Exhibit
3) By express provision of
the order of this court, only creditors whose debts are discharged by
the Order of November 15, 1990 were enjoined from commencing,
continuing or employing any action, process or act to collect, recover
or offset any such debt as a personal liability of the debtor.
(Exhibit 3).
It is
well settled that the very purpose for the provisions of 11 U.S.C. '
523(a)(9) is that of deterring and not rewarding drunk driving in the
United States as well as preventing drunk drivers from using bankruptcy
procedures as an aegis of sorts to escape the consequences of their
crimes. In Re Hudson, 859
F.2d 1418, 1423 (9th Cir. 1988). In
addition to this, in a case similar to the present case, the defendant
debtor, in In Re Thomas, 51 B.R. 187 (B.Ct. E.D.Va. 1985), the Court
stated that Congress did not aim to Aimpede
an injured party@
when a drunk driver killed a motorist and sought to be discharged from
the debt by way of bankruptcy proceedings.
In fact the court conclusively stated that the purpose of 11
U.S.C. '
523(a)(9) was not that of giving Aquick
thinking drunks or their attorneys an out.@
Id.
There is
no Awillful
violation,@
the debt is excepted from discharge and the case should not be reopened.
WHEREFORE,
[judgment creditor] and Thomas H. Roberts, Esq., by and through their
counsel, pray that the motion to reopen be denied and that they be
awarded costs and attorneys fees incurred to oppose the motion.
[judgment creditor]
THOMAS
H. ROBERTS, ESQ.
# # #
Contact:
Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
Virginia Civil Rights Attorneys
105 S. 1st Street
Richmond, Virginia 23219
804) 783-2000
804) 783-2105
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