Pursuant to 28 U.S.C. ‘1334(a), the United States District Court has original and exclusive jurisdiction over all bankruptcy cases, and pursuant to ‘1334(b), the District Court has original but not exclusive jurisdiction of all civil proceedings arising under the Bankruptcy Code (11 U.S.C. ‘101 et. seq.), or arising in or related to cases under the Bankruptcy Code.
Monthly Archives: April 2015
Jurisdiction of Bankruptcy Court
Criminal Proceedings not subject to Bankruptcy Automatic Stay
Courts generally find that the automatic stay does not halt criminal contempt proceedings to punish the debtor for contumacious conduct; orders to pay criminal restitution to the victim of a crime; or issuance of summonses, determination of guilt and imposition of fines in connection with traffic citations.
If, however, they are merely disguised debt collection actions, a few courts find either that they are stayed by §362 and/or that they may be enjoined under §105. Most courts disagree, holding that, even if the effect of the prosecution is to collect the debt, the action is still criminal and not subject to the stay. Such courts generally conclude that the prosecutor’s independent judgment as to whether or not to pursue the matter precludes the action from being treated as that of the private creditor.
11 U.S.C. 362 “The Automatic Stay” in Bankruptcy
The automatic stay provides a period of time in which all judgments, collection activities, foreclosures, and repossessions of property are suspended and may not be pursued by the creditors on any debt or claim that arose before the filing of the bankruptcy petition. The stay automatically goes into effect when the bankruptcy petition is filed and provides a breathing spell for the debtor, during which negotiations can take place to try to resolve the difficulties in the debtor’s finances. 11 U.S.C. § 362(a).
The filing of a petition, however, does not operate as a stay for certain types of actions listed under 11 U.S.C. § 362(b). For example, the stay does not apply to the commencement or continuation of a criminal action or proceeding against the debtor or the commencement or continuation of a civil action or proceeding
- for the establishment of paternity;
- for the establishment or modification of an order for domestic support obligations;
- concerning child custody or visitation; or
- for the dissolution of a marriage, except to the extent that such proceeding seeks to determine the division of property that is property of the estate.
Under specific circumstances, the secured creditor can obtain relief from the automatic stay. For example, when the debtor has no equity in the property and the property is not necessary for an effective reorganization, the secured creditor can seek an order of the court lifting the stay to permit the creditor to foreclose on the property, sell it, and apply the proceeds to the debt. 11 U.S.C. § 362(d). Unsecured creditors can also seek relief from the automatic stay, for example, to continue state court litigation that was pending before the Chapter 11 case was filed.
Guardian ad Litem
Miss. Code Ann. § 43-21-121(4) states: “The court may appoint either a suitable attorney or a suitable layman as guardian ad litem. In cases where the court appoints a layman as guardian ad litem, the court shall also appoint an attorney to represent the child. From and after January 1, 1999, in order to be eligible for appointment as guardian ad litem, such attorney or lay person must have received child protection and juvenile justice training provided by or approved by the Mississippi Judicial College within the year immediately preceding the appointment.” If an allegation of abuse or neglect arises during a custody proceeding,
