Knight v. Eppard (In re Eppard), Bankruptcy No. 12–50275.

502 B.R. 458

In re Monica Renee EPPARD, Debtor.Lisa L. Knight, Plaintiff,

v.Monica Renee Eppard, Defendant.

Bankruptcy No. 12–50275.

Adversary No. 12–05034.

United States Bankruptcy Court,

W.D. Virginia,

Harrisonburg Division.

Nov. 14, 2012.

Dana Jean Cornett, Dana J. Cornett, Attorney at Law, Harrisonburg, VA, for Plaintiff.

David Leslie Meeks, Carlton Legal Service, PLC, Staunton, VA, for Defendant.

MEMORANDUM DECISION

REBECCA B. CONNELLY, Bankruptcy Judge.

Lisa Knight is a creditor of the debtor in this case. Ms. Knight filed this adversary proceeding to determine whether her debt is excepted from discharge under Bankruptcy Code section 523(a)(6). The parties stipulated to the facts ¹ and submitted briefs. Both sides waived oral argument and the Court took the matter under advisement.

I. Discussion

A. The Setting

On May 1, 2010, the Rockingham County General District Court (Rockingham General District Court) entered a judgment in favor of Lisa Knight against the debtor in the amount of $14,890. Ms. Knight enforced her judgment by obtaining orders from the Rockingham General District Court directing the debtor to turn over tax refunds to Ms. Knight in partial satisfaction of the judgment debt. On November 30, 2010, the Rockingham General District Court ordered that the plaintiff have execution against the debtor in amount of $16,468 by levy against the debtor's 2010 state and federal income tax refunds. The Rockingham General District Court's order cited Virginia Code § 8.01–507 as the basis for the relief. The order contained the following language: “[The debtor] is advised to turn said property over to counsel for plaintiff. Failure to do so may result in [the debtor] being found in contempt of court and being fined, imprisoned, or both.” The debtor received a 2010 federal income tax refund of $1,684 after the entry of the November 30 order, but did not turn over this refund to the plaintiff. The debtor did not receive a 2010 state income tax refund. The parties fail to mention what if any specific consequences occurred from the debtor's failure to submit the 2010 tax refund to Ms. Knight, other than that a second order was entered on January 10, 2012, nearly identical to the November 13, 2010 order. On January 10, 2012, the Rockingham General District Court ordered that the plaintiff have execution against the debtor in the amount of $17,507 by levy against the debtor's 2011 state and federal income tax refunds. This order again cited Virginia Code § 8.01–507 as the basis for the relief. This second order contained the identical language: “[The debtor] is advised to turn said property over to counsel for [plaintiff]. Failure to do so may result in [the debtor] being found in contempt of court and being fined, imprisoned, or both.” The debtor received a 2011 federal tax refund in the amount of $2,812 after the entry of the January 10, 2012 order, but did not turn over this refund to the plaintiff. The debtor did not receive a state income tax refund for 2011.

Ms. Knight argues that the November 30, 2010 and January 10, 2012 orders created a lien on the tax refunds which conferred a property interest in the tax refunds. Plaintiff further contends that the debtor intentionally did not turn over the refund checks and that by doing so, converted the tax refunds, making the amount of the tax refunds a non-dischargable debt under 11 U.S.C. § 523(a)(6). The debtor argues that the levy orders were advisory and that because the debtor was not in possession of the funds at the time the orders were issued, turn over of the refunds was impossible. Because the refunds did not exist at the time of the order, she did not convert property of the plaintiff.

B. The Court's Authority

The question for this court is whether Monica Eppard, who filed Chapter 7 bankruptcy in this court, may discharge her debt to Lisa Knight, or whether the debt is excepted from discharge under Bankruptcy Code section 523(a)(6). The issue is a question of bankruptcy law, 11 U.S.C. § 523(a)(6), over which this court has subject matter jurisdiction matter. 28 U.S.C. § 1334. It is a core proceeding. 28 U.S.C. § 157. Pursuant to the Western District of Virginia District Court Order of Reference, ² this court heard the matter, and pursuant to Federal Rule of Bankruptcy Procedure 7052, the court makes the following findings of fact and conclusions of law.

II. Findings of Fact

A. The Injury

Ms. Knight has a judgment against the Debtor. She was unsuccessful in collecting the judgment prior to March 1, 2012. On March 1, 2012, Ms. Eppard filed a Chapter 7 bankruptcy petition, thus staying Ms. Knight from collection. Ms. Knight will be permanently enjoined from collection unless the debt is excepted from discharge. Ms. Knight pleads that she has suffered financial harm because she has a state court order directing the debtor to turn over the debtor's tax refunds to pay toward the judgment, yet the debtor failed to do so. The amount of the judgment, therefore has not changed yet had Ms. Eppard complied with the state court order and paid her tax refund to her judgment creditor, Ms. Knight would have received some satisfaction on her judgment; the balance under the judgment would have been reduced. Thus the injury is Ms. Knight's inability to collect approximately $1684 and $2812 and apply these funds to the outstanding indebtedness. Ms. Knight pleads that she has a property interest in the future tax refunds of the debtor by virtue of the state court order. She does not plead that the state court order was delivered to the sheriff, or that if it had been, the sheriff could have seized the property.³ Absent delivery to the sheriff or physical possession of the tax refund check, the court finds that Ms. Knight did not have a lien on the future tax refund and accordingly did not have a property interest in the tax refund ⁴ such that the failure to collect it constitutes conversion of the creditor's property or injury to the creditor's property. Michie's Enforcement of Judgments and Liens in Virginia §§ 2.2, 3.2; International Fidelity Ins. Co. v. Ashland Lumber Co., 250 Va. 507, 463 S.E.2d 664 (Va.1995) (a writ of fieri facias creates a lien in favor of in favor of judgment creditor only to the extent that the judgment debtor has a possessory interest in the intangible property subject to the writ.) AdvanceMe, Inc. v. Shaker Corp., 79 Va. Cir. 171 (Va.Cir.Ct.2009) (“in order for property of the debtor to be subject to an order of conveyance under § 8.01–507, the property must be in possession of or under the control of the debtor or his debtor or his bailee”). While Virginia Code section 8.01–507 is the tool by which a sheriff can direct “turn over” of property to satisfy a judgment, see id., when the property is not in the hands of the debtor, the only practical method to enforce such order is through garnishment. See In re Wilkinson, 196 B.R. 311, 315 (Bankr.E.D.Va.1996). The result, however, remains: the general district court order did not effectuate or convey to Lisa Knight a property interest in the future tax refunds of Monica Eppard. See id., citing United States f/u/o Global Bldg Supply, Inc. v. Harkins Builders, Inc., 45 F.3d 830, 833–34 (4th Cir.1995) (the writ commands the officer to collect the money judgment from the goods and chattels of the judgment debtor but when the property is in the hands of a third person, the lien of execution may be enforced through garnishment proceeding ... through garnishment, the judgment creditor does not replace the judgment debtor as owner of the property, but merely has the right to hold the garnishee liable for the value of that property). This court finds that Ms. Knight did not have a lien on the future tax refunds.⁵

Ms. Knight did, however, have an expectation that Ms. Eppard would use her tax refund, once received, to pay Ms. Knight, and indeed Ms. Eppard was ordered specifically to do so by the Rockingham General District Court. Ms. Eppard violated the General District Court order by failing to use the tax refund to pay Ms. Knight. Violation of the state court collection order subjects Ms. Eppard to sanctions but was not in this case conversion of property or injury to property.

B. The Intent

The stipulation is silent as to the debtor's state of mind. The parties agree that the debtor failed to comply with a state court order. The parties do not agree whether the debtor's stipulation that she failed to comply with the state court order is sufficient to find intent for purposes of section 523(a)(6). The debtor argues in her brief that she could not have intended to harm or cause injury to property of the creditor because she did not believe the creditor had a property interest in the tax refund. The creditor argues that the debtor's intent to spend the tax refund and not pay its value to the creditor is sufficient to find intent to cause injury.

The joint stipulation of facts does not provide enough circumstantial evidence for the court to draw a conclusion as to the debtor's state of mind. The court finds that the debtor violated the Rockingham General District Court orders by not providing the value of her 2010 and 2011 income tax refunds to her judgment creditor but for the reasons set forth below does not conclude that this transgression created a non-dischargeable debt to the judgment creditor.

III. Conclusions of Law

A. Exception to Discharge Under 11 U.S.C. 523(a)(6)

1. Injury to Property

A debt “for willful and malicious injury by the debtor” to another or the property of another is non-dischargable. 11 U.S.C. § 523(a)(6). Conversion is an injury under section 523(a)(6). Davis v. Aetna Acceptance Co., 293 U.S. 328, 332, 55 S.Ct. 151, 79 L.Ed. 393 (1934). A plaintiff alleging conversion must have a property interest in the converted property and be entitled to immediate possession of the same. Economopoulos v. Kolaitis, 259 Va. 806, 814, 528 S.E.2d 714, 719 (2000); Kubota Tractor Corp. v....