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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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