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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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