In re Danzig, BAP No. 98-6096EM.

• Decision Date: 20 April 1999
• Docket Number: BAP No. 98-6096EM.
• Parties: In re Howard J. and Myra DANZIG, Debtors. Robert L. and Anna K. Guy, Plaintiffs-Appellants, v. Howard J. Danzig, Defendant-Appellee.
• Court: Bankruptcy Appellate Panels. U.S. Bankruptcy Appellate Panel, Eighth Circuit

233 B.R. 85 (1999)

In re Howard J. and Myra DANZIG, Debtors Robert L. and Anna K. Guy, Plaintiffs-Appellants, v. Howard J. Danzig, Defendant-Appellee.

BAP No. 98-6096EM.

United States Bankruptcy Appellate Panel of the Eighth Circuit.

Submitted March 25, 1999.

Decided April 20, 1999.

COPYRIGHT MATERIAL OMITTED

Canice Timothy Rice, Jr., St. Louis, Missouri, for appellant.

Howard J. Danzig, St. Louis, Missouri, appellee pro se.

Before KRESSEL, HILL, and SCOTT, Bankruptcy Judges.

HILL, Bankruptcy Judge.

Appellants Robert L. and Anna K. Guy ("Guys"), appeal the Orders of the bankruptcy court¹ denying their Petitions for Revival of Judgment against Debtor Howard Danzig ("Danzig") as being timebarred, and its Order denying their Motions to Alter or Amend Judgment or for New Trial. We affirm in all respects.

I. BACKGROUND

The facts of this matter are straightforward and undisputed. Danzig filed his petition for relief under Chapter 7 of the United States Bankruptcy Code, 11 U.S.C. § 101 et seq., on August 5, 1985. On November 26, 1985, the Guys filed a Complaint to Determine Dischargeability of Debt, alleging therein that Danzig "obtained money from them by false representations and/or actual fraud."

On September 16, 1987, Danzig and the Guys entered into a Consent Judgment, agreeing to a nondischargeable judgment in favor of the Guys in the amount of $6,200.00 and also to bear their respective "costs incurred by reason of this action." On September 16, 1987, the bankruptcy court approved the Consent Judgment, which was duly entered into the record.

On September 17, 1997, the Guys filed a Petition for Writ of Scire Facias to Revive Judgment against Danzig, in which they stated as follows:

Comes now plaintiff sic and for their petition for writ of scire facias to revive judgment, state as follows:

1. On September 16, 1987, this court entered judgment in favor of plaintiff against defendant Howard Danzig in the sum of Six Thousand Two Hundred and 00/100 Dollars ($6,200.00) and for his costs.

2. That plaintiff sic has not received satisfaction of said judgment.

WHEREFORE, plaintiff sic prays that said judgment be revived and that the lien of said judgment upon the land and tenements and real estate of said Howard Danzig may be revived and continued as provided by law.

On December 11, 1997, the bankruptcy court held a hearing in the matter. Subsequently, on February 6, 1998, it entered an Order denying the Petition as time-barred, stating, in pertinent part, as follows:

It is clear from the court record that the original Bankruptcy Court order for the consent judgment was dated and entered on September 16, 1987. That being so, pursuant to Rule 44.01(a) of the Missouri Rules of Civil Procedure, the ten years for the collection of the judgment expired the moment before midnight September 16, 1997. The Petition for Writ of Scire Facias to Revive a Judgment was filed September 17, 1997. . . . The ten-year period having expired prior to the filing of the writ, the judgment is presumed to be paid and satisfied, and cannot be revived in this proceeding.

On February 12, 1998, the Guys filed yet another Petition for Writ of Scire Facias to Revive Judgment, identical in all pertinent respects to the first. On February 19, 1998, the bankruptcy court entered an Order denying the Guys' second Petition, which the court found "stated no basis in law or fact in the record for the Court to reconsider the matter."

Subsequently, the Guys filed a Motion to Alter or Amend Judgment or for New Trial² dated February 14, 1998, stating as follows:

Come now plaintiffs, and pursuant to Rule 9023, move the Honorable Court to reconsider and set aside its order of February 6, 1998 herein.

As grounds therefor, plaintiffs state as follows:

1. The ten year period within which plaintiffs are permitted to renew this judgment was tolled for a period of almost five months, from the date of judgment, September 16, 1987, until the automatic stay was lifted by the order discharging Debtors, entered on February 12, 1988. Thus, plaintiffs sic filing on September 17, 1997 of their petition for writ of scire facias was timely.

2. If there have been payments entered on the record, the ten year period within which to renew the judgment is measured from the most recent payment. The court file reflects several payments, with the latest in 1997. For this reason as well, the petition for writ of scire facias was filed in time.

The Motion was received and filed in the Clerk's Office of the United States Bankruptcy Court for the Eastern District of Missouri on February 14, 1998, but was not received in the Chambers of the bankruptcy court until after the entry of its Order of February 19, 1998.

The bankruptcy court did not enter an Order formally disposing of the February 14 Motion. Subsequently, on February 27, 1998, the Guys resubmitted their Motion,³ which was in all relevant aspects identical to the first. On October 15, 1998, the bankruptcy court denied the February 27 Motion, holding that the automatic stay does not toll the time period permitting a revival of judgment, and further, that no payments were entered on the record during the ten years after the entry of the Consent Judgment so as to provide for its revival pursuant to Mo.Rev.Stat. § 516.350. In particular, the court stated as follows in this connection:

Mo.Rev.Stat. § 516.350(1) provides that the ten-year limitation period begins to run when the judgment is entered and not when the debt becomes enforceable and that there is no tolling period when the debts are uncollectible.

The extension of time as provided under 11 U.S.C. § 108(c) does not toll the statute of limitations, but rather operates to suspend deadlines as provided in other federal or state statutes that may expire during the pendency of the bankruptcy proceedings.

. . . .

In the matter before the Court, the consent judgment for the Plaintiffs was entered by the Bankruptcy Court on September 16, 1987 while the automatic stay was in effect. The Plaintiffs were unable to collect on the judgment for approximately five (5) months before the case was discharged and the automatic stay lifted on February 12, 1988. There remained approximately nine (9) years and seven (7) months during which the Plaintiffs could collect on their judgment, and during which time they could have obtained a revival of judgment pursuant to Mo.R.Civ.P. 74.09. The period to collect or revive under the applicable nonbankruptcy law ran from the date of the entry of the original Bankruptcy Court judgment, and expired ten years after that date on September 16, 1997. As of September 16, 1997, the judgment was presumed to have been paid according to Mo.Rev.Stat. § 516.350. The statute of limitations was not tolled by the pendency of the Bankruptcy Case by either one day or five months as contended by the Plaintiffs.

. . . .

Mo.Rev.Stat. § 516.350 does provide for the revival of judgment by having a payment duly entered on the record within the ten years from the date of the original judgment. . . . However, the ten-year statute of limitations is not tolled even if actual payments are made or claimed to have been paid unless the payment is entered upon the record. . . . An entry made on the record by the judgment creditor\'s attorney more than ten years after the original judgment was entered does not toll the statute of limitations.

The Plaintiffs\' claim that there were several payments made on the record during the ten-year period which would revive the judgment is not supported by the record in this case. The only payment duly entered on the record was a check sent from the garnishee to the Plaintiffs\' attorney that was filed with the Court on October 6, 1997 and entered on October 7, 1997. Both of these dates were after the ten-year period following the original judgment entered on September 16, 1987. A writ of execution on a notice of garnishment is not the same as a "payment" entered on the record. The ten-year statute of limitations was not tolled by any payment duly entered on the record and the debt is presumed to be paid according to Mo.Rev.Stat. § 516.350.

(Citations omitted.) Subsequently, on October 23, 1998, the Guys filed their Notice of Appeal from the bankruptcy court's Orders of February 6, 1998, and February 19, 1998, denying their Petition for Writ of Scire Facias to revive their judgment against Danzig; and its Order of October 15, 1998 denying their Motion to Alter or Amend Judgment or for New Trial of February 27, 1998.

On appeal, they argue that the statutory time period in which they were permitted to seek a revival of judgment was tolled while the automatic stay prevented them from enforcing their judgment. In particular, they argue that § 108(c), alone, tolled the ten-year limitation period for the revival of their Consent Judgment in this matter, and that this provision also operates to toll the same time period under the nonbankruptcy law of the State of Missouri, such that their Petition for Revival was timely filed. Additionally, and for the first time in these proceedings, they raise the argument that Section 516.260 of the Missouri Revised Statutes tolled the ten-year limitation period. Lastly, and although conceding that they "do not explicitly mention any payments," the Guys argue that writs of garnishment related to this matter constitute payments entered on the record which operate to recommence the statute of limitations such that their Petitions for Revival of Judgment were timely filed.

II. DISCUSSION

1. Jurisdiction

We are duty-bound to raise, sua sponte, any issue arising in relation to our jurisdiction. See Missouri ex rel. Mo. Highway & Transp. Comm'n v. Cuffley, 112 F.3d 1332, 1334 (8th Cir.1997); Ferren v. Searcy Winnelson Co. (In re Ferren), 227 B.R. 279, 282 (8th Cir. BAP 1998). A loose thread in the proceedings below calls into question the timeliness of the Guys' Notice of Appeal. The matter is of...