In re Perry (Ch. 13 Case No. 03-31648, Adv. No. 04-03030)

Three Opinions: Mr. Lavender’s Motion, Judge Rice’s Motion, Puckett Foundations’ Motion - The debtor was hired to construct an addition to a home. The debtor received payment from the homeowner but failed to pay one of his subcontractors. The debtor and his wife filed for Chapter 13 relief. The homeowner filed an application for a criminal warrant against the debtor. The subcontractor filed a materialman's lien against the homeowner's property. The district attorney caused the debtor to be indicted for theft by conversion.

The debtor contended that the defendants had conspired to violate the automatic stay and that the defendants were using the criminal proceeding to collect a civil debt. The debtor sought sanctions, injunctive relief, and damages.

The Court held that the district attorney and the magistrate court judge had absolute immunity from a civil suit for damages. The subcontractor, in filing a materialman's lien, was exercising its rights to collect from the homeowner's property. The Court held that the debtor was not entitled to injunctive relief because he had not shown that a "debt collection defense" could not be raised in the state court criminal proceeding.

Friday, September 3, 2004