Lachter v. Smith

                     SUPREME COURT OF ARIZONA
                              En Banc


In Re:                            )   Arizona Supreme Court
                                  )   No. CV-04-0153-CQ
JAMES M. SMITH,                   )
                                  )   United States
                          Debtor. )   Bankruptcy Court
__________________________________)   No. B-95-06077-PHX-RTB
                                  )
SIDNEY LACHTER and SANDRA         )
LACHTER, Successors to Neepawa    )
Enterprises, Ltd., a Manitoba     )
corporation (registered to do     )
business in Arizona),             )
                                  )   O P I N I O N
                       Plaintiffs,)
                                  )
                  v.              )
                                  )
JAMES M. SMITH,                   )
                                  )
                       Defendant. )
__________________________________)

                   Certified Questions from the
   United States Bankruptcy Court for the District of Arizona
              The Honorable Redfield T. Baum, Judge

                        QUESTIONS ANSWERED

HIRSCH LAW OFFICE, P.C.                                Scottsdale
     by   Lawrence D. Hirsch
     and Iva S. Hirsch
Attorneys for Plaintiffs

ELLETT LAW OFFICES, P.C.                                  Phoenix
     by   Ronald J. Ellett
     and Jay S. Volquardsen
Attorneys for Defendant


B E R C H, Justice
¶1         This      case       asks    us   to    resolve     whether       judgment

creditors timely renewed a state-court judgment.                     The matter is

before    us    on    certified        questions    from     the    United     States

Bankruptcy Court for the District of Arizona.

                      FACTS AND PROCEDURAL BACKGROUND1

¶2         In 1987, Sidney and Sandra Lachter secured a money

judgment against the debtor, James Smith.                      They renewed the

judgment, as permitted by Arizona law, on March 6, 1992, within

the five-year period provided by statute for such renewals.                          See

Ariz. Rev. Stat. (“A.R.S.”) §§ 12-1551, -1612(B) (1992).                         The

debtor did not satisfy the debt and, in July of 1995, filed for

bankruptcy protection, invoking the shield of the automatic stay

of proceedings.

¶3         To     protect       their    interests,    the    Lachters       filed    a

complaint in the bankruptcy court alleging that Smith’s debt to

them was nondischargeable.              See 11 U.S.C. § 523(a)(2) (1994).

Because   Smith      had   no    assets,     the   bankruptcy      court   issued     a

general discharge on November 12, 1996, before any determination

had been made regarding the dischargeability of Smith’s debt to

the Lachters.        The initial determination that Smith’s debt to



1
     These facts are taken largely from the opinion of the
Bankruptcy Appellate Panel in In re Smith, 293 B.R. 220 (B.A.P.
9th Cir. 2003) (Smith II).    A more detailed exposition of the
facts and procedural background can be found in that opinion.



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the Lachters was nondischargeable was not made until October 24,

1997, and not finalized until much later.

¶4           On     November       7,     1997,      within    thirty       days   of    the

bankruptcy       court’s     determination           of     nondischargeability,         the

Lachters filed an affidavit of renewal of their judgment.                               They

filed a “supplement” to the affidavit less than a month later,

on December 5, 1997, after the bankruptcy court issued a signed

minute entry memorializing its previously announced decision.2

Following        motions     and     an     appeal     by     Smith,    the     Bankruptcy

Appellate        Panel     (“BAP”)        eventually        affirmed    the     bankruptcy

court’s     determination          of     nondischargeability          on     December    9,

1999.     In re Smith, 242 B.R. 694, 696 (B.A.P. 9th Cir. 1999).

¶5           In      one       of         the      earlier-filed            motions      for

reconsideration, Smith had asserted that the Lachters’ judgment

had     lapsed     because     they       had     failed      to    timely     file     their

affidavit of renewal, as required by Arizona law.                            See Smith II,

293 B.R. at 222 n.4; see also A.R.S. §§ 12-1551, -1612.                                  The

Lachters then sought a determination from the bankruptcy court

that they had timely renewed their judgment.                            The bankruptcy

judge     agreed    with     the        Lachters,     but     his    determination       was

reversed on appeal by the BAP.                  Smith II, 293 B.R. at 226.                The


2
     Absent a further renewal, the judgment would have lapsed in
March, 1997. See A.R.S. § 12-1551. During the relevant renewal
period, the bankruptcy court had not finally determined whether
the debt was dischargeable.

                                            - 3 -
BAP, citing In re Spirtos, 221 F.3d 1079 (9th Cir. 2000), and In

re Morton, 866 F.2d 561 (2d Cir. 1989), agreed that 11 U.S.C. §

108(c)    extended         the       time      for     renewing       the    judgment,        but

concluded      that       the    bankruptcy          court    erred    in     relying       on    §

108(c)(2)      in    finding         that     the    Lachters       timely    renewed       their

judgment.        Smith II, 293 B.R. at 223-24.                         The BAP concluded

instead that § 108(c)(1) applied.                      Id. at 225.

¶6             The BAP reasoned that § 108(c)(1) extended the time to

renew the judgment by the number of days the automatic stay was

in effect.          Id.    It concluded that the extension in this case

was 487 days, encompassing the period from the filing of Smith’s

bankruptcy       petition        on     July        13,   1995,      until    the     date       of

discharge, November 12, 1996.                   Id. at 226.          Under this analysis,

the Lachters’ judgment expired on July 6, 1998, 487 days after

the original renewal deadline of March 6, 1997.                                Id.     Because

A.R.S. § 12-1612(E) calls for the renewal affidavit to be filed

“within ninety days of expiration of five years from the date of

the filing of a prior renewal affidavit,” the BAP determined

that the ninety-day period for filing the affidavit of renewal

ran from April 6, 1998 to July 6, 1998.                           Id. at 227.         Although

the BAP stated that the renewal affidavit filed on November 7,

1997,     immediately                after      the         entry      of      the      signed

“nondischargeability”                minute    entry,       was     filed    “much    earlier”

than    this    period,         it    stopped       short    of     concluding       that    this


                                               - 4 -
renewal affidavit was ineffective and remanded the case to the

bankruptcy court to determine whether the Lachters’ filing of

their      renewal          affidavit       might     be     deemed    timely     under     §

108(c)(1).           Id.

¶7              On    April        30,   2004,    United     States    Bankruptcy        Court

Judge Redfield T. Baum certified two questions of Arizona law to

this court for resolution:

     A.        When a pending bankruptcy case is unresolved and
               the time period under Arizona law to file the
               required affidavit of renewal of judgment has
               passed, under what circumstances, if any, is the
               time period under A.R.S. [§] 12-1551 extended or
               otherwise changed to allow the judgment creditor
               to file a timely affidavit of renewal of
               judgment?

     B.        Were either of the affidavits of renewal                             of
               judgment filed by the Lachters timely filed?

¶8              We    agreed       to    answer   the      certified    questions.         See

A.R.S. § 12-1861 (2003) (permitting the Arizona Supreme Court,

on certain conditions, to “answer questions of law certified to

it   by    .    .     .     a   United     States     district    court”).        We      have

jurisdiction to decide certified questions pursuant to Article

6, Section 5(6) of the Arizona Constitution, A.R.S. §§ 12-1861

to 12-1867, and Arizona Supreme Court Rule 27.

                                           DISCUSSION

¶9              The        first    certified       question     asks     whether        under

Arizona law the time for filing a renewal affidavit is extended

if   the       debtor       has     a    bankruptcy     proceeding      pending     and    an


                                              - 5 -
automatic stay is in effect during the ninety-day renewal period

of A.R.S. § 12-1551 or § 12-1612.    The answer under Arizona law

is no.   A judgment creditor’s inability to enforce a judgment

during the initial or a subsequent statutory five-year period,

whether because of bankruptcy stay or other reasons, does not

extend the deadline imposed by A.R.S. §§ 12-1551 and 12-1612 to

file a renewal affidavit.

¶10       Arizona law allows a judgment creditor to execute on a

judgment within five years after entry of the judgment.    A.R.S.

§ 12-1551(A).   To execute after that time, the creditor must,

within ninety days before the end of the five-year period, have

filed an affidavit renewing the judgment pursuant to A.R.S. §

12-1612(B) or (E), or have brought an action on the judgment

pursuant to A.R.S. § 12-1611.       The Arizona statutory scheme

discusses two separate events:   enforcement of the judgment, and

the ministerial filing of an affidavit to renew the judgment.

The affidavit of renewal serves to notify interested parties of

the existence and continued viability of the judgment.       J.C.

Penney v. Lane, 197 Ariz. 113, 119, ¶ 29, 3 P.3d 1033, 1039

(App. 1999).

¶11       Under the bankruptcy laws, a petition for bankruptcy

operates to stay any action to “create, perfect, or enforce”

liens or judgments.    11 U.S.C. § 362(a) (1998).     Actions to

collect from the debtor may be filed or reinstituted either “30


                             - 6 -
days after notice of the termination or expiration of the stay,”

11 U.S.C. § 108(c)(2), or after a period set by “applicable

nonbankruptcy       law,”   as   extended     by    “any      suspension    of    such

period” that results from the bankruptcy proceedings.                      11 U.S.C.

§ 108(c)(1).         The BAP determined that A.R.S. § 12-1551 is an

“applicable nonbankruptcy law” setting the time for “commencing

or continuing a civil action” that may be stayed by bankruptcy

proceedings.3       Smith II, 293 B.R. at 223 (citing § 108(c)).

¶12          That    determination    does     no   violence      to    Arizona    law

with respect to that portion of A.R.S. § 12-1551 that addresses

bringing an action to enforce the judgment or seeking a writ of

execution.      Under Arizona law, enforcement is stayed and the

time   in   which    to   enforce   the   judgment      is     tolled    during    the

pendency of bankruptcy actions, just as it is while supersedeas

bonds preclude enforcement and in other similar circumstances.

¶13          As a matter of Arizona law, however, the filing of an

affidavit of renewal is simply a ministerial action intended in

part   to    alert    interested     parties       to   the    existence     of    the

judgment.     Such a ministerial filing serves a notice function

and does not seek to enforce a judgment.                   See J.C. Penney, 197


3
     We assume, by implication, that A.R.S. § 12-1612, which
provides the mechanism for filing subsequent renewal affidavits,
would also qualify as an “applicable nonbankruptcy law” that may
be stayed by bankruptcy proceedings. Cf. Smith II, 293 B.R. at
223 (holding A.R.S. § 12-1551 to qualify); 11 U.S.C. § 108(c)
(employing term “applicable nonbankruptcy law”).

                                      - 7 -
Ariz.   at   119,   ¶     29,   3   P.3d   at   1039.      It    therefore     is   not

prohibited under Arizona law by an automatic bankruptcy stay or

any stay of the enforcement of the judgment, such as might be

imposed by the filing of a supersedeas bond.4

¶14          Thus, for example, under Arizona law, a creditor with

a judgment entered on January 1, 2000, who was prevented by the

existence     of    a   supersedeas        bond    or    bankruptcy      stay       from

executing     on    the     judgment       until   January       1,    2004,    could

nonetheless    file     a   renewal    affidavit        within   the   ninety       days

preceding January 1, 2005.             See A.R.S. § 12-1612(B).              But even

if an affidavit were not filed, the time in which to enforce the

judgment would be tolled and extended through January 1, 2009,

to accommodate the time the creditor was precluded by the bond

or stay from attempting to collect on the judgment.                             Accord

Hazel v. Van Beek, 954 P.2d 1301, 1310 (Wash. 1998) (summarizing

position of several jurisdictions regarding suspensions, stays,

and tolling of time limits).

¶15          We therefore answer the first certified question in

the negative:       Under Arizona law, the time to file an affidavit


4
     Several jurisdictions have similarly held that 11 U.S.C. §
362(a)(4) does not prevent the filing of a renewal affidavit.
See, e.g., Morton, 866 F.2d at 564; Barnett v. Lewis, 170 Cal.
App. 3d 1079, 1090, 217 Cal. Rptr. 80, 86 (1985); O’Lane v.
Spinney, 874 P.2d 754, 756 (Nev. 1994) (citing with approval the
holding in Morton); Barber v. Emporium P’ship, 800 P.2d 795, 797
(Utah 1990).   The BAP declined to decide this question in this
case. Smith II, 293 B.R. at 223.

                                       - 8 -
of    renewal    of    judgment     is    not    changed     or     extended       by   the

pendency of a bankruptcy case.

¶16            In addressing the second question, we start from the

premise that the BAP has ruled as a matter of federal law that §

108(c)(1) extended the time for filing the renewal affidavit in

this   case.         Smith   II,   293   B.R.    at   226.        The    BAP   has      also

concluded as a matter of federal law that the effectiveness of a

judgment is extended by the number of days that A.R.S. § 12-1551

would have been suspended by a stay preventing enforcement of

the judgment.         In this case, the BAP determined that period to

be 487 days, the length of time the bankruptcy stay precluded

enforcement of the judgment.             Id.

¶17            The    second   certified        question     asks       whether,     under

these circumstances, either of the affidavits of renewal that

the Lachters filed was timely.              Given the BAP’s determination in

this    case    that    the    renewal     deadline     was       extended     under      §

108(c)(1) by 487 days, see id., we conclude that the time for

filing the renewal affidavit was also extended.                      As noted above,

one purpose of the filing requirements of A.R.S. §§ 12-1551 and

12-1612 is to provide notice and to limit the amount of record

searching interested parties must do to ascertain whether the

judgment remains valid.            J.C. Penney, 197 Ariz. at 119, ¶ 29, 3

P.3d at 1039.         Once a bankruptcy stay is imposed, however, that

purpose    has       been    frustrated    because      §    108(c)       extends       the


                                         - 9 -
effectiveness      of   the   judgment      beyond    the     five-year    statutory

period.5    Creditors and other interested parties cannot know the

number of days that a stay remains in effect without searching

bankruptcy      records   outside     the    usually       applicable     ninety-day

window.     Under these circumstances, little additional burden is

imposed    by   requiring     an    interested       party    to    conduct   a   full

search of state records to determine whether a renewal affidavit

had been filed.

¶18          The   debtor     is    not   harmed      by     this   frustration     of

purpose because the debtor himself filed the bankruptcy action

and invoked the stay.              The debtor already has notice of the

status of the judgment.            Cf. Nowels v. Bergstedt, 120 Ariz. 112,

114, 584 P.2d 576, 578 (App. 1978) (noting that debtor has no

vested right in prior interpretation of A.R.S. §§ 12-1551 and

12-1612).

¶19          Because the rationale supporting the limited filing

window has been frustrated in these circumstances, we hold that

Arizona law would treat an affidavit of renewal filed anytime

between December 6, 1996, the date ninety days preceding the

Lachters’ original second renewal deadline under A.R.S. § 12-

1612(E), and the extended deadline of July 6, 1998, as having

been timely filed.


5
     The   other        purpose,      renewing        the      judgment,      remains
unaffected.

                                      - 10 -
¶20           We reach our conclusion as follows:                The BAP concluded

in    Smith   II    that    §    108(c)    applies   to   determine      the    renewal

period for a state-court judgment.                     293 B.R. at 223.            That

period is extended by either subsection (c)(2) to a date thirty

days after notice of the termination of the automatic stay, or

by subsection (c)(1) to a date set by “applicable nonbankruptcy

law,” including “any suspension of such period.”                    Id.    If either

of those sections expands the deadline for filing a renewal

affidavit past the five-year period set forth in state statute,

we will treat an affidavit filed at any time from ninety days

before    the      expiration      of     the   five-year      period    through    the

expiration      of    the       extended    deadline      as   timely.         Honoring

affidavits filed after the fifth year but before the end of the

extended period serves the remedial purposes of A.R.S. §§ 12-

1551 and 12-1612.           See Nowels, 120 Ariz. at 114, 584 P.2d at

578.

                                        CONCLUSION

¶21           For    the    foregoing        reasons,     we    answer    the      first

certified question in the negative, and the second certified

question in the affirmative.



                                           __________________________________
                                           Rebecca White Berch, Justice

CONCURRING:



                                           - 11 -
______________________________________
Charles E. Jones, Chief Justice


_______________________________________
Ruth V. McGregor, Vice Chief Justice


________________________________________
Michael D. Ryan, Justice


________________________________________
Andrew D. Hurwitz, Justice




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