Johnson v. Cramer

• Decision Date: 03 April 1992
• Citation: 598 So.2d 980
• Parties: Charles JOHNSON a/k/a Charles Hobart Johnson v. Robert CRAMER d/b/a Cramer Travel Agency. 2910093.
• Court: Alabama Court of Civil Appeals

Page 980

598 So.2d 980

Charles JOHNSON a/k/a Charles Hobart Johnson v. Robert CRAMER d/b/a Cramer Travel Agency.

2910093.

Court of Civil Appeals of Alabama.

April 3, 1992.

J.L. Butler of J.L. Butler & Associates, Huntsville, for appellant.

No brief for appellee.

L. CHARLES WRIGHT, Retired Appellate Judge.

On February 21, 1990 Robert Cramer loaned Charles Johnson $10,000 with the understanding that Johnson would repay Cramer within a reasonable amount of time. On January 10, 1991 Cramer wrote Johnson a letter requesting payment. Johnson failed to repay the money. On May 9, 1991 Cramer filed a complaint in the Circuit Court of Madison County demanding a judgment against Johnson for the amount of the loan. Johnson summarily denied the allegations of the complaint.

On July 3, 1991 Cramer filed a motion for summary judgment, with his affidavit attached. Johnson did not file a response to the motion; rather, he filed a Suggestion of Bankruptcy, advising the court that he had filed an action in federal bankruptcy court requesting that court to reopen his prior bankruptcy proceedings to include Cramer as an unsecured creditor. Attached to the Suggestion of Bankruptcy was the motion Johnson filed in the bankruptcy court which showed that he had filed a Chapter 7 bankruptcy petition in September 1990 and that he had been discharged of his liabilities in December 1990.

On August 21, 1991, following oral proceedings, the trial court granted Cramer's motion for summary judgment. Johnson filed a motion to set aside the summary judgment, which was denied. Johnson appeals.

Johnson asserts that the trial court erred in holding the hearing and subsequently granting the summary judgment. He insists that his petition in federal court to reopen his bankruptcy proceedings automatically stayed the action in state court.

Bankruptcy Code, 11 U.S.C. § 362 "operates as a stay, applicable to all entities, of-- ... the commencement or continuation ... of a judicial, administrative, or other proceeding against the debtor that was or could have been commenced before the commencement of the [bankruptcy] case." The stay ceases to exist when the bankruptcy proceeding is closed, dismissed, or discharge is either granted or denied. 11 U.S.C. § 362(c)(2).

Johnson's liabilities were discharged in December 1990. The automatic stay expired at that time. Johnson's suggestion that his petition to reopen the bankruptcy proceedings invoked the automatic stay provision of § 362 is unfounded. While 11 U.S.C. § 350 does provide for a mechanism to revisit a final bankruptcy determination it does not provide for an automatic stay of any pending proceedings.

Johnson alternatively asserts that if the § 362 automatic stay was not applicable to this action, the trial court should have allowed a continuance pursuant to Rule 56(f), Alabama Rules of Civil Procedure.

Rule 56(f), A.R.Civ.P., provides:

"Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such order that is just."

The party seeking to invoke a Rule 56(f) continuance must state his reasons, via affidavit, why he cannot present essential facts. Malloy v. Sullivan, 455 So.2d 12 (Ala.1984). Johnson did not...