- Gutierrez v. Coker (In re Gutierrez), 9th Cir. B.A.P., NC-13-1469-DJuKu, August 19, 2014 [Not for Publication]
- In an unpublished opinion, the 9th Circuit Bankruptcy Appellate Panel affirmed the order of the bankruptcy court denying the motion for contempt for violation of the discharge injunction (“Motion”) filed by Marco and Jennifer Gutierrez (Debtor/Appellants) against appellees Irene Macias (“Ms. Macias”) and John Diaz Coker (“Mr. Coker”) (collectively, “Appellees”). The court reasoned that the Appellees did not willfully violate the discharge injunction.
- Procedural context:
- The bankruptcy court entered its Order denying the Motion on September 9, 2013. The Debtors timely appealed.
- Marco and Jennifer Gutierrez (Debtor/Appellants) were serial bankruptcy filers with 14 different bankruptcy filings as individual and joint debtors. The chapter 7 case (“Chapter 7 Case”) from which this appeal arises was filed on August 19, 2008, and is the only one of the Debtors’ bankruptcy cases in which they obtained a discharge. The discharge was entered on May 27, 2009.The Debtors/Appellants explained to the Irene Macias (Appellee) that they were using the bankruptcy court to prevent foreclosure on their home and to prevent other collection efforts, because the debtor/appellees had no money. Mrs. Gutierrez (Debtor/Appellant) explained to Irene Macias (Appellee) that the way they were preventing a foreclosure was by filing for bankruptcy and then not following up on a legal requirement and the case would be dismissed. Mrs. Gutierrez (Debtor/Appellant) explained to Ms. Macias (Appellee) that sometimes there was a three month period between the filing and the dismissal and that interfered with the foreclosure./p/ /p/ After the discharge, Debtors/Appellants began a series of lawsuits against Ms. Macias (Appellee) and her husband in Contra Costa Superior Court (“State Court”) starting in January 2010. Ms. Macias filed a general denial and affirmative defenses, but did not file a cross-complaint for unpaid wages or commissions. In response to a subsequent lawsuit, Ms. Macias (Appellee) filed a cross-complaint for unpaid wages, unpaid commissions and abuse of process. The subsequent lawsuit was dismissed but the Debtor/Appellees filed a motion to reopen the Chapter 7 Case, which was granted by order entered on January 10, 2012. The Debtors subsequently filed an adversary proceeding against Ms. Macias (Appellee) and other defendants for violation of the discharge order. In light of the Ninth Circuit’s determination that no private right of action exists to enforce the discharge injunction, see Walls v. Wells Fargo Bank, N.A., 276 F.3d 502 (9th Cir. 2002), the bankruptcy court interpreted the Debtors’ adversary complaint as a motion (“Motion”) for civil contempt. The apparent motivation for the lawsuits and the adversary filed by the debtors' was the Debtors’ allegations that Ms. Macias violated the discharge injunction by cooperating with an investigation conducted by the California Department of Real Estate with respect to the Debtors’ business practices and by speaking out against the Debtors’ business operations within their common religious community. The bankruptcy court in denying the motion found that the discharge injunction did not prohibit Ms. Macias from engaging in such speech, and no evidence was presented to the effect that such speech by Ms. Macias was undertaken to collect a discharged debt.
- DUNN, JURY and KURTZ, Bankruptcy Judges.
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