Steeley v. Dunivant
| Decision Date | 02 March 1988 |
| Parties | James W. STEELEY and Janet D. Steeley v. Patsy DUNIVANT. Civ. 6115. |
| Court | Alabama Court of Civil Appeals |
James W. Steeley and Janet D. Steeley, pro se.
Charles Y. Boyd of Rhea, Boyd & Rhea, Gadsden, for appellee.
In April 1987, Horace E. McCoy, Sr., filed an action in the small claims court of Etowah County against James W. and Janet D. Steeley, as well as a materialmen's lien on their property. James and Janet Steeley, here appellants, then filed a petition under Chapter 13 of Title 11, U.S. Code, and relief was ordered by the United States bankruptcy court. Appellants also filed an answer and counterclaim in small claims court, adding a third party. In August 1987, the Etowah Circuit Court ordered that all proceedings concerning Horace E. McCoy, Sr., were stayed. That order also dismissed the counterclaim filed by the defendants adding Patsy Dunivant as a third party.
The record reveals that Patsy Dunivant, the daughter of Mr. McCoy, had allegedly called the Steeleys and encouraged them to pay the outstanding debt owed to her father.
Appellants now contend that the trial court erred in granting the motion of Patsy Dunivant to dismiss her as a third party defendant. They argue that, under the automatic stay provision of the Bankruptcy Code, § 362, this dismissal proceeding of the trial court was void and without effect. Borg-Warner Acceptance Corp. v. Hall, 685 F.2d 1306 (11th Cir.1982).
Bankruptcy Code, § 362, states in pertinent part:
We note that an automatic stay pursuant to this section acts as a stay of court proceedings, but does not deprive a state court of jurisdiction over the matter. In re Clowser, 39 B.R. 883 (Bankr.E.D.Va.1984). Furthermore, an automatic stay is intended under the provision only as a stay on actual proceedings and similar acts against the debtor. Matter of Compass Development, Inc., 55 B.R. 260 (Bankr.D.N.J.1985). The automatic stay is designed to give the debtor a "breathing spell" from his creditors. In re Ahlers, 794 F.2d 388 ...
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