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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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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