Linda Gail Lamon

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Linda Gail Lamon
05-16328
Memorandum Opinion re: [6-1] Motion For Relief From Stay Permitting the District
Court to enter Judgment by Rapid Temps, Inc. .
Received on: 2006-03-15 09:08:32.000
2006-03-15 00:00:00.000
2006-03-15 00:00:00.000
James Burke
Case 05-16328-s7 Doc 25 Filed 03/15/06 Entered 03/15/06 11:51:00 Page 1 of 7

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
Linda Gail Lamon,
Debtor. 	No. 7 - 05-16328 - SA
MEMORANDUM OPINION ON MOTION FOR
RELIEF FROM AUTOMATIC STAY (doc 6) and ORDER
This matter came before the Court for hearing on Movant
Rapid Temps, Inc.’s (“Movant”) Motion for Relief from Automatic
Stay (doc 6)(“Motion”). 	Debtor filed a response (doc 10). 	The
parties filed briefs, docs 20, 23 and 24. 	Having considered the
motion and response and the briefs, the Court finds that the
Motion is well taken in part and should be granted in part. 	This
is a core proceeding. 	28 U.S.C. § 157(b)(2)(G).
FACTS
Movant filed suit in the Fifth Judicial District Court for
the state of New Mexico against Debtor seeking both monetary and
injunctive relief in the form of money damages and an injunction
prohibiting Debtor from violating the terms of a non-compete
clause in her employment agreement with Movant. 	After a five day
bench trial, on July 29, 2005, the judge sent a transmittal
letter to the parties that accompanied Findings of Fact and
Conclusions of Law (“FFCL”). 	The letter requested that Movant’s
attorney prepare a judgment and injunction consistent with the
FFCL. 	On August 1, 2005, the state court filed the Court’s
Findings of Fact and Conclusions of Law. 	On August 5, 2005,
before any judgment or injunction was filed for record, Debtor
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filed this voluntary Chapter 7 bankruptcy proceeding. 	Movant
seeks relief from the automatic stay to enter the judgment and
injunction called for by the state court judge, and to commence
enforcement of the injunction. 	Debtor opposes the relief,
claiming that these matters should be considered in connection
with the nondischargeability adversary proceeding filed by Movant
concerning the same facts. 	In addition, Debtor claims that the
injunctive relief is simply a claim like any other, and warrants
no special treatment by this Court.
CONCLUSIONS OF LAW
1. 	Under New Mexico law, entry of a judgment is a purely
ministerial act. 	In re High Country Resorts, 94 B.R. 193, 194
(Bankr. D. N.M. 1988)(citing De Lao v. Garcia, 96 N.M. 639, 640,
633 P.2d 1237, 1238 (Ct. App. 1981)). 	The automatic stay does
not prohibit ministerial acts because they are clerical in nature
and do not constitute a continuation of legal proceedings against
a debtor. 	Soares v. Brockton Credit Union (In re Soares), 107
F.3d 969, 974 (1 st Cir. 1997). 	See also In re Capgro Leasing
Assoc., 169 B.R. 305, 315-16 (Bankr. E.D. N.Y. 1994). 	Therefore,
the automatic stay should be modified, to the extent necessary,
for the state court to perform the ministerial act of entering
the judgment.
2. 	Alternatively, the automatic stay should be modified for
cause.
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Under § 362(d)(1) stay relief may be granted for cause.
While cause under § 362(d)(1) includes "the lack of
adequate protection of an interest in property," it is
not so limited. 	11 U.S.C. § 362(d)(1). Because "cause"
is not further defined in the Bankruptcy Code, relief
from stay for cause is a discretionary determination
made on a case by case basis. Pursifull [v. Eakin], 814
F.2d [1501] at 1506 [(10 th Cir. 1987)].
...
Twelve factors were identified in In re Curtis, 40 B.R.
795, 799-800 (Bankr. D. Utah 1984), as some of the
issues a bankruptcy court might consider when
determining whether to lift the stay to permit pending
litigation in another forum. 	These factors are
frequently referred to as the "Curtis factors." 	See,
e.g., Sonnax Indus., Inc. v. Tri Component Prods. Corp.
(In re Sonnax Indus., Inc.), 907 F.2d 1280, 1286 (2d
Cir. 1990). 	The Curtis factors have been widely
adopted by bankruptcy courts.
Busch v. Busch (In re Busch), 294 B.R. 137, 140-41 (10 th Cir.
B.A.P. 2003)(footnote omitted.)
The twelve Curtis factors are:
(1) Whether the relief will result in a partial or
complete resolution of the issues.
(2) The lack of any connection with or interference
with the bankruptcy case.
(3) Whether the foreign proceeding involves the debtor
as a fiduciary.
(4) Whether a specialized tribunal has been established
to hear the particular cause of action and the tribunal
has the expertise to hear such cases.
(5) Whether the debtor’s insurance carrier has assumed
full financial responsibility for defending the
litigation.
(6) Whether the action essentially involves third
parties, and the debtor functions only as a bailee or
conduit for the goods or proceeds in question.
(7) Whether litigation in another forum would prejudice
the interests of other creditors, the creditors’
committee and other interested parties.
(8) Whether the judgment claim arising from the foreign
action is subject to equitable subordination under
Section 510(c).
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(9) Whether movant’s success in the foreign proceeding
would result in a judicial lien avoidable by the debtor
under Section 522(f).
(10) The interest of judicial economy and the
expeditious and economical determination of litigation
for the parties.
(11) Whether the foreign proceedings have progressed to
the point where the parties are prepared for trial.
(12) The impact of the stay on the parties and the
“balance of hurt.”
Curtis, 40 B.R. at 799-800 (citations omitted). 	In this case,
the Court finds factors 3, 4, 5, 6, 8 and 9 are not relevant. 	As
to the other factors, the Court finds that they overwhelmingly
suggest that the automatic stay should be modified for cause.
Modifying the stay to allow entry of the judgment would result in
a complete resolution of the state court issues, liquidate all
damage claims in a judgment, and outline the parameters of an
injunction. 	There is no connection to the bankruptcy case, in
which the Trustee has filed a report of no distribution and
abandonment of assets. This bankruptcy case remains open only to
determine this Motion. 	Allowing entry of the judgment will not
prejudice the interests of other creditors; all other creditors’
claims have been discharged. 	The interests of judicial economy
will be served by modifying the automatic stay; entry of the
judgment will be an expeditious and economical finalization of
the state court action as compared to trying the matter anew in
the Bankruptcy Court. 	Not only was the state court action ready
for trial, the trial was completed. 	If the stay were not
modified, the state court judgment would not be entered and
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collateral estoppel would not be available, forcing Movant to
retry the case in bankruptcy court. 	Therefore, the equities
favor Movant. 	In conclusion, the Court finds that the automatic
stay should be modified, for cause.
3. 	While the Court is modifying the automatic stay for entry
of the judgment, the Court is not modifying the automatic stay
for any enforcement action, which should be taken only in
connection with the pending adversary proceeding. 	It is in that
context that the issue of dischargeability of an injunction
should be determined.
4. 	The Court is specifically not deciding many of the other
issues raised by the parties in their briefs. 	Automatic stay
litigation is a summary procedure in which the Court should only
determine whether the automatic stay should be modified; the
Court should not address the validity of the various creditors’
claims during the hearing. 	In re Murray, 276 B.R. 869, 873
(Bankr. N.D. Ill. 2002).
ORDER
IT IS ORDERED that the automatic stay is modified to allow
Rapid Temps, Inc. to return to the Fifth Judicial District Court
to obtain entry of a judgment in case No. CV-2004-420 and take
all actions in connection with entry of the judgment, such as
legal action in connection with supporting or modifying any
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finding of fact or conclusion of law, or pursuing any appeal
thereof.
IT IS ORDERED that Rapid Temps, Inc. may take no action to
enforce either the monetary or injunctive relief pending further
order of this Court in the adversary proceeding.
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on March 15, 2006, a true and correct copy
of the foregoing was electronically transmitted, faxed,
delivered, or mailed to the listed counsel and/or parties.
Jennie D Behles
PO Box 7070
Albuquerque, NM 87194-7070
Roger E Yarbro
PO Box 480
Cloudcroft, NM 88317-0480
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