{ "id": 723196, "name": "Robert L. BENJAMIN, et al., Plaintiffs-Appellees, v. David CHAMBERLIN, Defendant-Appellant", "name_abbreviation": "Benjamin v. Chamberlin", "decision_date": "1991-12-18", "docket_number": "No. 11184", "first_page": "216", "last_page": "218", "citations": [ { "type": "official", "cite": "113 N.M. 216" }, { "type": "parallel", "cite": "824 P.2d 356" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "860 F.2d 1521", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 655819, 6486723 ], "pin_cites": [ { "page": "1522-24" } ], "opinion_index": 0, "case_paths": [ "/f2d/860/1521-01", "/br/92/1521-01" ] }, { "cite": "109 B.R. 335", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6102368 ], "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/br/109/0335-01" ] }, { "cite": "30 B.R. 360", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6106272 ], "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/br/30/0360-01" ] }, { "cite": "11 U.S.C. \u00a7 549", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1988, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "38 B.R. 245", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6102655 ], "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/br/38/0245-01" ] }, { "cite": "79 B.R. 723", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6540704 ], "year": 1987, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/br/79/0723-01" ] }, { "cite": "119 B.R. 400", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6106926 ], "pin_cites": [ { "page": "403" } ], "opinion_index": 0, "case_paths": [ "/br/119/0400-01" ] }, { "cite": "881 F.2d 176", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 11288026, 6504787 ], "weight": 2, "pin_cites": [ { "page": "178-79" }, { "page": "179", "parenthetical": "\"If everything done post-petition were void in the strict sense of the word, these provisions would be * * * meaningless * * * * \"" } ], "opinion_index": 0, "case_paths": [ "/f2d/881/0176-01", "/br/102/0176-01" ] }, { "cite": "43 B.R. 608", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6557875 ], "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/br/43/0608-01" ] }, { "cite": "110 B.R. 848", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6117403 ], "pin_cites": [ { "page": "853" } ], "opinion_index": 0, "case_paths": [ "/br/110/0848-01" ] }, { "cite": "24 B.R. 612", "category": "reporters:specialty", "reporter": "B.R.", "case_ids": [ 6547353 ], "pin_cites": [ { "page": "614" } ], "opinion_index": 0, "case_paths": [ "/br/24/0612-01" ] }, { "cite": "685 F.2d 1306", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 525561, 6556923 ], "pin_cites": [ { "page": "1308" } ], "opinion_index": 0, "case_paths": [ "/f2d/685/1306-01", "/br/22/1306-01" ] }, { "cite": "890 F.2d 123", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 12026889, 6123663 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/f2d/890/0123-01", "/br/107/0123-01" ] }, { "cite": "308 U.S. 433", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141359 ], "weight": 3, "year": 1940, "pin_cites": [ { "page": "443", "parenthetical": "because of bankruptcy stay, state court was deprived of power to proceed and, therefore, its actions were without authority of law" }, { "page": "348", "parenthetical": "because of bankruptcy stay, state court was deprived of power to proceed and, therefore, its actions were without authority of law" }, { "parenthetical": "because of bankruptcy stay, state court was deprived of power to proceed and, therefore, its actions were without authority of law" } ], "opinion_index": 0, "case_paths": [ "/us/308/0433-01" ] }, { "cite": "90 N.M. 604", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871637 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0604-01" ] }, { "cite": "90 N.M. 673", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869653 ], "weight": 2, "pin_cites": [ { "page": "675" }, { "page": "201" } ], "opinion_index": 0, "case_paths": [ "/nm/90/0673-01" ] }, { "cite": "653 P.2d 878", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1982, "opinion_index": 0 }, { "cite": "99 N.M. 47", "category": "reporters:state", "reporter": "N.M.", "year": 1982, "opinion_index": 0 }, { "cite": "99 N.M. 11", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584557 ], "weight": 2, "pin_cites": [ { "page": "16" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nm/99/0011-01" ] }, { "cite": "11 U.S.C. \u00a7 362", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1988, "pin_cites": [ { "page": "(a)(6)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 511, "char_count": 7909, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.02653340020981918 }, "sha256": "3095f53dcbe780a9ae51c35faef9b21bf201804add28fbb7d7b93c069534a14b", "simhash": "1:9d4ded93c048b07b", "word_count": 1301 }, "last_updated": "2023-07-14T16:27:24.348281+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "ALARID, C.J., and PICKARD, J., concur." ], "parties": [ "Robert L. BENJAMIN, et al., Plaintiffs-Appellees, v. David CHAMBERLIN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBIVINS, Judge.\nDefendant appeals a judgment, following a bench trial, awarding Plaintiffs damages based on conversion. Defendant argues that the judgment is a nullity because, at the time of the trial which led to the judgment, there was a bankruptcy stay in effect. We agree and set aside the judgment as void. Because of our disposition of this issue, we do not reach the remaining issue claiming denial of a fair trial.\nDuring the pendency of this action, Defendant filed for bankruptcy in the United States Bankruptcy Court for the federal district of New Mexico. Notification of that fact was made to the state district court as well as to Plaintiffs on or about July 7, 1988. The filing of a bankruptcy petition operates to stay \u201cany act to collect, assess, or recover a claim against the debt- or that arose before the commencement\u201d of the bankruptcy proceeding. 11 U.S.C. \u00a7 362(a)(6) (1988). Notwithstanding this stay, the state district court conducted a trial on the merits on August 17, 1988.\nDefendant moved for a new trial based, in part, on the stay from the bankruptcy proceeding. Plaintiffs responded to the motion for new trial, indicating that the bankruptcy court judge lifted the automatic stay at a hearing held on August 5,1988, which Defendant attended. That pleading was not under oath or supported by affidavit. Plaintiffs attached to their response a copy of an order granting relief from stay which was filed in the United States Bankruptcy Court on September 2, 1988, two weeks after the state district court trial. The state district court denied Defendant\u2019s motion.\nThere are two questions which must be addressed: (1) whether the stay was violated; and, if it was, (2) whether the state district court judgment is void or voidable. Confining our review to the record properly before us, we hold that the stay was violated. We further hold that the district court judgment is void because of violation of the stay.\nThe parties argue the issue of whether the stay was violated by relying on transcripts of proceedings in the bankruptcy court that were never made a part of the record or brought to the trial court\u2019s attention below. These transcripts simply have been attached to the parties\u2019 briefs. We do not consider transcripts of proceedings in other courts that are attached to briefs but were not made a part of the record in the district court. See Poorbaugh v. Mullen, 99 N.M. 11, 16, 653 P.2d 511, 516 (Ct.App.), cert. denied, 99 N.M. 47, 653 P.2d 878 (1982); State v. Rogers, 90 N.M. 673, 675, 568 P.2d 199, 201 (Ct.App.) (transcript of federal trial), rev\u2019d on other grounds, 90 N.M. 604, 566 P.2d 1142 (1977).\nThe record before us reveals that the district court, when it held the trial on August 17, 1988, was under the automatic stay imposed by 11 U.S.C. \u00a7 362. The record also reveals that the automatic stay was not lifted until some two weeks after the district court trial. Such being the state of the record, we are compelled to hold that the stay was violated.\nHaving determined that the judgment violated the stay, we turn to the second question of whether that violation rendered the judgment void or voidable. While there is a conflict among the courts, the weight of authority supports the general rule that an action taken in violation of an automatic stay is void and without effect. See, e.g., Kalb v. Feuerstein, 308 U.S. 433, 443, 60 S.Ct. 343, 348, 84 L.Ed. 370 (1940) (because of bankruptcy stay, state court was deprived of power to proceed and, therefore, its actions were without authority of law); In re Shamblin, 890 F.2d 123, 125 (9th Cir.1989) (judicial proceedings violating stay are void); Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306, 1308 (11th Cir.1982) (\u201cActions taken in violation of automatic stay are void and without effect.\u201d); In re Advent Corp., 24 B.R. 612, 614 (Bkrtcy.App. 1st Cir.1982) (acts done in violation of automatic stay void ab initio regardless of lack of knowledge of bankruptcy petition); In re Pettibone Corp., 110 B.R. 848, 853 (Bkrtcy.N.D.Ill.1990) (automatic stay protects debt- or absolutely and actions filed while stay is in effect are void and without legal effect); In re Estate of Barefoot, 43 B.R. 608, 609 (Bkrtcy.E.D.N.C.1984) (judgment obtained during pendency of automatic stay is not voidable but void ab initio). See generally 2 William M. Collier, Collier on Bankruptcy, \u00b6 362.11 (Lawrence P. King ed., 15th ed. 1991) (actions in violation of stay are void).\nOther courts have found that an action taken in violation of an automatic stay is merely voidable, rather than void. Many of these cases rely upon a bankruptcy court\u2019s power to \u201cannul\u201d the stay under 11 U.S.C. Section 362(d) and validate such actions retroactively. See, e.g., Sikes v. Global Marine, Inc., 881 F.2d 176, 178-79 (5th Cir.1989); In re Bresler, 119 B.R. 400, 403 (Bkrtcy.E.D.N.Y.1990); In re Clark, 79 B.R. 723, 725 (Bkrtcy.S.D.Ohio 1987); In re Oliver, 38 B.R. 245, 248 (Bkrtcy.D.Minn.1984) (\u201cIn light of this power to validate, violations of the stay are voidable rather than void because a void act could not be ratified or cured.\u201d). Other cases supporting the voidable theory discuss the fact that there are specific statutory \u201cexceptions,\u201d such as a protection for good faith purchasers of real property, which protect certain actions despite the fact that they may technically violate the stay. See, e.g., 11 U.S.C. \u00a7 549(c) (1988); see also Sikes, 881 F.2d at 179 (\u201cIf everything done post-petition were void in the strict sense of the word, these provisions would be * * * meaningless * * * * \u201d); In re Fuel Oil Supply & Terminaling, Inc., 30 B.R. 360, 362 (Bkrtcy.N.D.Tex.1983) (refers to good faith exceptions found in sections 542(c), 549(c) and 546 of the Code). But see In re Garcia, 109 B.R. 335, 339 (Bkrtcy.N.D.Ill.1989) (fact that Code contains exceptions to automatic stay does not require conclusion that actions violating stay are merely voidable).\nWe find that the better approach is to follow the rule that actions, such as this one, taken in violation of an automatic stay are void. While it is true that in some instances an action taken in violation of an automatic stay can be \u201cvoidable\u201d rather than \u201cvoid,\u201d we do not believe that the present facts present such a situation. The action before this court does not fall within any of the statutory good-faith exceptions of the Bankruptcy Code, nor has the bankruptcy court chosen to annul the stay and thus breathe life into an otherwise void state district court judgment entered in violation of the automatic stay.\nAlthough we reach this conclusion, it has not escaped our attention that Defendant appears to have employed every means at his disposal to frustrate the state district court proceeding. He changed counsel numerous times, requested continuances, and otherwise thwarted the judicial process to gain advantage. What occurred in this case is not unlike that in Noli v. Commissioner, 860 F.2d 1521, 1522-24 (9th Cir.1988) (petitioners changed counsel, requested numerous continuances, and otherwise frustrated process; bankruptcy court determined that petitions were filed as a means to avoid a decision in the Tax Court). Nevertheless, we are compelled to abide by long-standing rules of appellate procedure that require we limit our review to the record below.\nTherefore, we set aside the judgment and remand for further proceedings. Defendant requested oral argument; however, we do not deem it necessary. No costs are awarded.\nIT IS SO ORDERED.\nALARID, C.J., and PICKARD, J., concur.", "type": "majority", "author": "BIVINS, Judge." } ], "attorneys": [ "Craig T. Erickson and Judith D. Schrandt, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, for plaintiffs-appellees.", "Paul Livingston, Albuquerque, for defendant-appellant." ], "corrections": "", "head_matter": "824 P.2d 356\nRobert L. BENJAMIN, et al., Plaintiffs-Appellees, v. David CHAMBERLIN, Defendant-Appellant.\nNo. 11184.\nCourt of Appeals of New Mexico.\nDec. 18, 1991.\nCraig T. Erickson and Judith D. Schrandt, Sheehan, Sheehan & Stelzner, P.A., Albuquerque, for plaintiffs-appellees.\nPaul Livingston, Albuquerque, for defendant-appellant." }, "file_name": "0216-01", "first_page_order": 254, "last_page_order": 256 }