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Judges split on court's role in garnishments with pro se debtors

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The Indiana Court of Appeals was divided on whether a trial court should assert exemptions in garnishment actions on behalf of debtors who aren’t represented by counsel.

In two opinions released today, Quincy and Shannon Branham v. Rodney Varble and Norman Chastain, No. 62A01-1004-SC-192, and Quincy and Shannon Branham v. Rodney and Carol Varble, No. 62A04-1004-SC-256, Quincy and Shannon Branham claimed the trial court acted contrary to law when it ordered them to pay $50 a month toward small-claims judgments, make repeated court appearances, and required Quincy seek five jobs per week.

The couple had trial consent judgments entered against them. They either stopped making payments or never paid toward the judgment. Ultimately they were ordered to pay $50 a month in each case. They appeared in court multiple times for each case.

In their case with the Varbles, the Branhams argued that the court “circumvented the statutory protections for earned income” by ordering them to pay $50 a month since the prior lawful garnishment order had been fruitless. The majority disagreed and upheld the order. Judge Terry Crone dissented, finding the Varbles didn’t meet their burden of showing that the Branhams had property not subject to exemptions.

In the Branhams’ case with Rodney Varble and Norman Chastain, the Branhams claimed on appeal that when a debtor is unrepresented, the court must protect the debtor’s constitutional rights and sua sponte determine what exemptions would be the least burdensome for the debtor. They didn’t enter any exemptions during the proceedings supplemental and weren’t represented by counsel. Again, the majority disagreed.

The judges split over the application of Mims v. Commercial Credit Corp., 261 Ind. 591, 307 N.E.2d 867 (1974). In Mims, the Indiana Supreme Court acknowledged that the general rule is that the burden is on the debtor to claim the exemption. If the debtor is represented pro se, then the court must determine which exemption would be least burdensome.

Judge Terry Crone wrote in his dissent that he believes that Mims unambiguously requires that trial courts assert exemptions on behalf of pro se debtors and that the majority construed it far too narrowly in the instant case.

“The supreme court has neither narrowed nor disavowed Mims since it was decided in 1974, and the fact that some trial courts may not follow Mims in the workaday world does not make that case any less binding on them or on us,” he wrote.

But the majority felt that to adopt Judge Crone’s view would essentially recast the role of the judiciary from traditional decision-making to one of advocacy for the parties and that the procedure proposed in Mims was specific to the case before it. No other case has adopted the interpretation of Mims proposed by Judge Crone, wrote Judge Ezra Friedlander.  

In both cases, the judges also were divided on the repeated court appearances issue; the majority found the trial court didn’t err, while Judge Crone dissented because he felt the creditors didn’t show new facts that justified a new order or examination. He would reverse the entire order and order further proceedings supplemental stayed until the creditors could show the new facts justifying the new order.

The three judges did agree that in both cases, the trial court overstepped its authority and abused its discretion in requiring Quincy to seek alternative employment by submitting five applications a week and reversed that part of the court’s order.
 

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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