Although courts have an inherent power to enforce their orders through civil contempt ( Shillitani v. United States, 384 U.S. 364, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966)), actions for civil contempt are considered private collection devices and within the ambit of the automatic stay. In re Kearns, 168 B.R. 423 (D.Kan. 1994). The purpose of criminal contempt is to vindicate offenses against public justice, rather than to enforce the rights of a party, and to compel respect for court orders.
See Dunham, 175 B.R. at 617-18. In In re Kearns, 168 B.R. 423 (D.Kan. 1994), the debtor sought to stay a contempt proceeding initiated against him by his former wife for non-payment of support. The court ruled that, to the extent the contempt proceeding was an attempt to coerce the payment of the support obligations out of the debtor's estate, it was stayed by § 362(a).
D.N.D. 2001); In re Campbell, 185 B.R. 628, 630 (Bankr. S.D. Fla. 1995); Kearns v. Orr (In re Kearns), 168 B.R. 423, 426 (Bankr. D. Kan. 1994); In re Weidenhammer, 82 B.R. 383, 385-86 (Bankr. E.D. Pa 1988); Henderson v. Henderson (Ex Parte Henderson), 574 So. 2d 830, 831 (Ala.Civ.App. 1990).
See In re Weil, C.A. No. 95-21570-BKC-RBR (Bankr.S.D.Fla.) (order entered July 21, 1995); see also Kearns v. Orr, 168 B.R. 423 (D.Kan. 1994); National Labor Relation Board v. Sawulski, 158 B.R. 971 (E.D.Mich. 1993); Stovall v. Stovall, 126 B.R. 814 (N.D.Ga. 1990).
A criminal contempt proceeding falls within the parameters of section 362(b)(1). See In re Allison, 182 B.R. 881 (Bankr.N.D.Ala.1995); In re Kearns, 168 B.R. 423 (D.Kan.1994); In re Roussin, 97 B.R. 130 (D.N.H.1989); In re Anoai, 61 B.R. 918 (Bankr.D.Conn., 1986).
E.g., Dominic's Restaurant, 683 F.3d at 760; Jou v. Adalian, 2011 WL 4435916, at *4 (D.Haw. Aug. 30, 2011) (citing Stovall v. Stovall, 126 B.R. 814, 815–16 (N.D.Ga.1990); Gedeon v. Gedeon (In re Gedeon), 31 B.R. 942, 946 (Bankr.D.Colo.1983); In re Kearns, 168 B.R. 423 (D.Kan.1994)); Kukui Gardens Corp. v. Holco Capital Grp., 675 F.Supp.2d 1016, 1026–27 (D.Hawaii 2009); Marine Midland Bank, N.A. v. Huber (In re Huber), 171 B.R. 740, 754 & n.17 (Bankr.W.D.N.Y.1994) (citing and endorsing US Sprint Comm'cns Co. v. Buscher, 89 B.R. 154 (D.Kan.1988)).The Court now turns to the circumstances surrounding the issuance of the contempt order in this case and whether the contempt order is, in fact, criminal in nature.
N. D. Ind. 2008); Matter of Batala, 12 B.R. 397, 400 (Bankr. Ga. 1981); In re Clark, 49 B.R. 704, 707 (Bankr. Guam 1985); In re Kearns, 161 B.R. 701, 705 (D. Kan. 1993), opinion modified on reconsideration, 168 B.R. 423; In re Gray, 97 B.R. 930, 936 (Bankr. N.D. Ill. 1989)) Although a postpetition act of a creditor in violation of the automatic stay is void even if the creditor has no notice thereof, in order to find a creditor in contempt of court for violation of the automatic stay, it must be shown that the respondent had either official or actual knowledge of the existence of debtor's bankruptcy case.
Where there is uncertainty about an order of the bankruptcy court, or the applicability of the automatic stay, the creditor may petition the court for clarification, and otherwise the creditor takes a calculated risk under threat of contempt when he undertakes his own determination of what the order means. In re Galmore, 390 B.R. 901, 907 (Bankr. N. D. Ind. 2008); Matter of Batala, 12 B.R. 397, 400 (Bankr. Ga. 1981); In re Clark, 49 B.R. 704, 707 (Bankr. Guam 1985); In re Kearns, 161 B.R. 701, 705 (D. Kan. 1993), opinion modified on reconsideration, 168 B.R. 423; In re Gray, 97 B.R. 930, 936 (Bankr. N.D. Ill. 1989)) Although a postpetition act of a creditor in violation of the automatic stay is void even if the creditor has no notice thereof, in order to find a creditor in contempt of court for violation of the automatic stay, it must be shown that the respondent had either official or actual knowledge of the existence of debtor's bankruptcy case. If actual knowledge of the Bankruptcy is shown official notice thereof is not necessary to sustain a contempt citation.
See also, In re Wiley, 315 B.R. 682, 687 (Bankr. E.D. La. 2004) (actions for civil contempt are subject to stay); In re Kearns, 168 B.R. 423, 426 (D. Kan. 1994) (contempt proceedings intended to coerce payment of monetary obligations are within the protection of the automatic stay). B. Garnishment Proceedings
Prior to Galmore's filing of her petition for relief, Dykstra was actively attempting to collect a debt: this is perfectly fine, up until the point a bankruptcy petition is filed and the automatic stay goes into effect. The debtor has the burden of providing the creditor with actual notice of the bankruptcy and, upon so providing, the burden shifts to the creditor to prevent violations of the automatic stay. Fleet Mortg. Group, Inc. v. Kaneb, 196 F.3d 265, 269 (1st Cir. 1999). If a creditor is uncertain about the applicability of the automatic stay, the creditor may petition the court for clarification; otherwise, the creditor risks exposure under 11 U.S.C. § 362(k)(1) when he undertakes his own determination of the manner in which § 362(a) affects his actions. Matter of Batala, 12 B.R. 397, 400 (Bankr. Ga. 1981); In re Clark, 49 B.R. 704, 707 (Bankr. Guam 1985); In re Kearns, 161 B.R. 701, 705 (D. Kan. 1993), opinion modified on reconsideration, 168 B.R. 423; In re Gray, 97 B.R. 930, 936 (Bankr. N.D. Ill. 1989). Sanctions should not be imposed where there has been a technical violation of the stay. In re Welch, 296 B.R. 170, 172 (C.D. Ill. 2003); Inre Zunich, 88 B.R. 721 (Bankr. W.D. Pa. 1988).