David Brian Derringer

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
David Brian Derringer
04-17330
Order Denying Remainder of [85-1] Motion to take Judicial Notice by David Brian
Derringer and Order Denying Remainder of [90-1] Motion for a New Trial;
Amendment of Judgment; and Relief Judgment or Order; of the December 23, 2004
Order on Chapels' Motion to Modify Automatic Stay by David Brian Derri
Received on: 2005-02-02 14:27:46.000
2005-02-02 00:00:00.000
2005-02-03 00:00:00.000
Patti Hennessy
Case 04-17330-m13 Doc 121 Filed 02/02/05 Entered 02/03/05 16:16:00 Page 1 of 5

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: DAVID DERRINGER, No. 13-04-17330 MA
Debtor.
ORDER DENYING REMAINDER OF DEBTOR’S MOTION TO TAKE
JUDICIAL NOTICE AND REQUEST FOR RELIEF, AND MOTION FOR
PERMANENT RESTRAINING ORDER AGAINST MICK CHAPEL,
JENNIFER CHAPEL, AND JOSEPH MANGES
THIS MATTER is before the Court on the Motion to Take Judicial Notice and Request for
Relief, and Motion for Permanent Restraining Order Against Mick Chapel, Jennifer Chapel, and Joseph
Manges (“Motion”), filed by Debtor David Derringer, pro se. The Court previously entered an order
denying the Motion to the extent it sought injunctive, or other equitable relief. (See Docket # 36,
entered November 19, 2004). In accordance with the Court’s oral ruling at the conclusion of the final
hearing held January 31, 2005 on the remaining issues raised in the Motion, the Court FINDS:
1. Debtor listed Joseph Manges, Mick Chapel, and Jennifer Chapel (together “Creditors”) as
creditors on his bankruptcy statements and schedules.
2. Debtor filed his voluntary petition under Chapter 13 of the Bankruptcy Code on October 6,
2004.
3. The Court sent notice of the bankruptcy filing to all creditors on October 8, 2004.
4. October 8, 2004 was a Friday.
5. The acts of which Debtor complains were taken by Creditors in violation of the automatic
stay occurred on October 7, 2004, when Joseph Manges mailed an Amended Notice of Sale to the
Seventh Judicial District Court for filing in Case No. D-0728-CV-2002-19, and on October 12, 2004,
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when the clerk of the Seventh Judicial District Court file-stamped the Amended Notice of Sale. See
Exhibit B.
6. There is no evidence that any further action was taken by Joseph Manges, Mick Chapel or
Jennifer Chapel in an attempt to take property of the Debtor after October 7, 2004. Creditors were
not required to attempt to retract or withdraw the Amended Notice of Sale mailed to the Seventh
Judicial District Court on October 7, 2004 and file-stamped on October 12, 2004.
7. Pursuant to 11 U.S.C. § 362(h), “[a]n individual injured by any willful violation of a stay
provided by this section shall recover actual damages, including costs and attorneys’ fees, and, in
appropriate circumstances, may recover punitive damages.” 11 U.S.C. § 362(h).
8. Debtor bears the burden of showing a willful violation of the automatic stay. In re
Georgetown Steel Co., LLC, 318 B.R. 313, 334 (Bankr.D.S.C. 2004) (“Debtor bears the burden of
proof on this issue [stay violation] and must prove the stay violation by clear and convincing evidence.”)
(citations omitted). A stay violation is “willful” if a creditor knew of the existence of the automatic stay
and intended the actions that violated the stay. In re Diviney, 225 B.R. 762, 774 (10th Cir. BAP
1998) (“A ‘willful violation’ does not require a specific intent to violate the automatic stay. Rather, the
statute provides for damages upon a finding that the defendant knew of the automatic stay and that the
defendant’s actions which violated the stay were intentional.”) (citation omitted).
9. Debtor has not met his burden of showing a willful violation of the automatic stay by clear
and convincing evidence. Debtor testified that he sent a facsimile to Joseph Manges on October 7,
2004 notifying him of the filing of the bankruptcy, and that Joseph Manges “probably” sent the
Amended Notice of Sale to the Seventh Judicial District Court for filing after receiving the facsimile.
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There is no evidence that the facsimile was in fact received on that day. (See Exhibit A - no facsimile
receipt information reflected on the face of the document). The notice of bankruptcy mailed to
Creditors by the Clerk of the Bankruptcy Court was not to mailed to all creditors until Friday, October
8, 2004. Mr. Manges mailed the Amended Notice of Sale to the Seventh Judicial District Court on
October 7, 2004.
10. The judgments against the Debtor that Debtor continues to assert violate his constitutional
rights are final, enforceable judgments that have res judicata effect. See In re Heghmann, 316 B.R.
395, 402 (1st Cir. BAP 2004) (“The doctrine of res judicata bars all parties and their privies from
relitigating issues which were raised or could have been raised in a previous action, once a court has
entered a final judgment on the merits in the previous action.”) (citation omitted).
11. Even if res judicata were inapplicable, this Court has no authority to reconsider or
overrule final judgments entered by a state court. See In re Armstrong, 294 B.R. 344, 357 (10th Cir.
BAP 2003) (“The Rooker-Feldman doctrine bars ‘a party losing in state court ... from seeking what in
substance would be appellate review of the state judgment in a United States district court, based on
the losing party's claim that the state judgment itself violates the loser's federal rights.’") (quoting
Johnson v. De Grandy, 512 U.S. 997, 1005-06, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). “[T]he
Rooker-Feldman doctrine prohibits federal courts from reviewing or changing a state court judgment.”
Id.
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WHEREFORE, IT IS HEREBY ORDERED, that the Motion to Take Judicial Notice and
Request for Relief, and Motion for Permanent Restraining Order Against Mick Chapel, Jennifer
Chapel, and Joseph Manges is DENIED.
___________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
I certify that on the date shown on the attached
document verification, a true and correct copy of
the foregoing was either electronically transmitted,
faxed, delivered or mailed to the listed counsel
and/or parties.
David Derringer, pro se
Box 157
Quemado, NM 87829
Joseph E. Manges, pro se and as
Attorney for Mick and Jennifer Chapel
PO Box 669
Santa Fe, NM 87504 -669
________________________________
Patti G. Hennessy
Law Clerk
(505) 348-2545
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