
    In re Ruby Mae SIMMONS, Debtor. Donald L. Dionne, as Trustee, Plaintiff, v. Ruby Mae Simmons, a/k/a Ruby Simmons Rashid, et al., Defendants.
    No. Civ.A. 98-C-0331-W.
    United States District Court, N.D. Alabama, Western Division.
    June 30, 2000.
    W. Dennis Schilling, Birmingham, AL, Donald L. Dionne, Dionne & Dionne, Tuscaloosa, AL, Helen Holmes Ellis, Bankruptcy Administrator-Northern District of AL, Tuscaloosa, AL, for Donald L. Dionne.
    Ruby Mae Simmons, aka Ruby Simmons Rashid, Atlanta, GA, pro se.
    Abdul R. Rashid, Atlanta, GA, pro se.
    Ruby Mae Simmons, Tuscaloosa, AL, pro se.
   RECUSAL OPINION AND ORDER

CLEMON, Chief Judge.

Ruby Mae Simmons is a legally unsophisticated, middle-aged black woman who appears pro se in this Court. For the reasons explained in the Memorandum Opinion of February 19, 1998, which is appended hereto as Attachment 1 and incorporated herein by reference, this judge rejected the Bankruptcy Court’s recommendation to hold Mrs. Simmons in contempt, reversed the Bankruptcy Court’s order denying her motion to dismiss her bankruptcy petition, and withdrew the reference to the Bankruptcy Court.

On appeal, the Court of Appeals concluded, without foundation, that this judge did not review the record before issuing his decision. In re Simmons, 200 F.3d 738, 739, 742 (11th Cir.2000). In fact, this judge did review all documents in this case’s official file in the Office of the Clerk prior to rendering his decision. The Court of Appeals’ erroneous conclusion/supposition to the contrary apparently arises from this judge’s finding that no one had filed a claim against the estate at the time the decision was entered on February 19,1998. But Footnote 6 of the appellate decision confirms that all of the claims were filed after this judge rendered his decision. Id. at 741. And the principal claimant, mortgagee Pate (whose belated claim accounts for 88% of the total indebtedness of Mrs. Simmons’ bankrupt estate) simply failed to appear at the first meeting of creditors.

Notwithstanding the decision of the Court of Appeals, this judge adheres to his belief that the principal beneficiary of Simmons’ Chapter 7 bankruptcy will be the attorney for the Trustee; not her creditors, and certainly not Mrs. Simmons. The principal purpose of bankruptcy — that of giving a debtor the opportunity of a “fresh start” will be frustrated. In the unlikely eventuality that the now impecunious Mrs. Simmons should win a lottery in the future, her creditors will be in a worse position than they would have been had the bankruptcy never been commenced.

This judge also adheres to his belief that the requisite “cause” for withdrawal of the reference was established by the Bankruptcy Court’s unjust incarceration of Mrs. Simmons for failure to testify after assertion of her privilege against self-incrimination.

But the mandate of the Court of Appeals has issued. This judge’s options are clear: either obey the mandate or get off the case. The lesson of the Nuremberg trials is that the defense of “just following orders” is not always adequate. In the view of this judge, to carry out the mandate in this case would result in an injustice and thus violate his conscience; therefore, he must choose the latter option.

The Clerk of the Court is hereby directed to assign this case to another judge.

ATTACHMENT 1

MEMORANDUM OF OPINION

The Bankruptcy Court has recommended that debtor Ruby Mae Simmons be found in civil and criminal contempt of court for her failure to deliver to the Trustee an automobile and certain monies as ordered by that court. For the reasons which follow, the recommendation will be rejected and the reference to the Bankruptcy Court withdrawn.

I

On July 28, 1997, Ruby Mae Simmons, in a transparent effort to forestall her imminent eviction from certain real estate, filed this action under Chapter 7 of the Bankruptcy Code. The application lists only one creditor — S. Lee Pake. Within the preceding two weeks, Pake had obtained a July 17, 1997, Tuscaloosa Circuit Court judgment vesting title and possession in him to the property occupied by Simmons as a home. Pate held a mortgage on this property, and Simmons defaulted on the mortgage. The circuit court judgment divested Simmons of all title and interest in the property.

The Bankruptcy Court granted Pake’s motion for relief for the automatic stay on September 11, 1997. So relieved, Pake has now evicted Simmons from the property.

On October 22, 1997, Simmons moved to dismiss her Chapter 7 petition. She pointed out in her motion that Pate had already taken possession of her home and that she was unable to hire an attorney. The Trustee objected to the dismissal. Simmons filed an amended motion to dismiss the petition on October 29, again pointing out that there is no reason to proceed on the petition, since the only creditor had been relieved from the automatic stay, and that her daughter was being harassed in the efforts to discover and attach Simmons’ assets. The Bankruptcy Court denied Simmons’ dismissal motion on November 18,1997.

The Trustee sought leave to employ an attorney to represent him on the day after Simmons filed her petition to dismiss the bankruptcy proceeding. Two days later, the Bankruptcy Court granted the Trustee’s application and approved a contingent attorney’s fee of 40% of net recovery.

No claims have been filed against the bankrupt estate.

Since the approval of his appointment, the Trustee’s attorney has diligently sought to collect Simmons’ assets. Simmons failed to disclose in her petition her ownership interest in a 1994 Cadillac. Her petition reflects that she has $2700 in deposit accounts. The Bankruptcy Court found that the aggregate balance in these accounts was $5816.90.

The Trustee filed two adversary proceedings against Simmons in the Bankruptcy Court on October 22, 1997. In the first of these, the Trustee seeks possession of the 1994 Cadillac from Simmons and her husband, Abdul R. Rashid. In the second action, the Trastee seeks to obtain possession of the deposit account monies. On the same day as the suits were filed, the Bankruptcy court issued a Temporary Restraining Order and preliminary Injunction. These orders require Simmons and her husband to turn over the Cadillac to the Trustee; Simmons to turn over the deposit monies to the Trustee; and the financial institutions to turn over to the Trustee the monies in Simmons’ deposit accounts.

Simmons has steadfastly denied knowledge of the whereabouts of the Cadillac. She says that she no longer has possession of the deposit account monies. There is no evidence to the contrary.

Simmons failed to appear at three scheduled deposition settings.

On February 5, 1998, the Bankruptcy Court granted the Trustee’s motion and ordered that Simmons and her husband be taken into custody by the United States Marshal and held until they submit to depositions by the Trustee.

On February 9, Simmons was apprehended by the Marshal and brought before the Bankruptcy Court. She submitted to the deposition, but she denied knowing the whereabouts of the Cadillac. Most important, she asserted her privilege against self-incrimination. Notwithstanding the Bankruptcy Court’s belief that Simmons is the subject of a bankruptcy fraud investigation by the United States Department of Justice, it apparently required her to proceed with the deposition.

At the conclusion of Simmons’ deposition, the Bankruptcy Court found her in contempt for “... her purposeful and non-responsive answers to deposition questions propounded to her in the court’s presence .... ” Report and Recommendation of the Bankruptcy Court (“RRBC”), p. 4. It ordered that she be incarcerated “... until she was willing to respond to the trustee’s deposition questions in a meaningful fashion.” Id. Simmons was jailed overnight.

On the following day, at a subsequent hearing, Simmons again asserted her privilege against self-incrimination, and she refused to be deposed. This time, the Bankruptcy Court respected her well-established constitutional right. It released her from further incarceration, appropriately recognizing that “... the facts which Ms. Simmons may testify to in response to further deposition questions, even on very minor points, may implicate her Fifth Amendment rights and her potential need for counsel ...” Id.

Simmons sought to appeal the Bankruptcy Court’s order denying her motion to dismiss her Chapter 7 petition. The Bankruptcy Court denied her request for a waiver of the appeal fee, in the face of her uncontested declaration that she is now homeless, impecunious, and disabled.

II

The Bankruptcy Court has recommended that this court place its imprimatur on a puzzling set of developments. With all due respect, the court declines to do so.

In the first place, the record does not disclose good cause for denial of Simmons’ petition to dismiss the bankruptcy petition. The only known creditor has apparently obtained all that he is entitled to. Whether he has or not is irrelevant, since he absented himself from the first meeting of creditors and has not filed a claim against the bankrupt estate. In fact, no one has filed a claim against the estate!

What, then, is the justification for keeping this case on the presumably congested docket of the Bankruptcy Court? Surely, it cannot be that the Trustee needs to collect the assets of the bankrupt estate — for there are no creditors. What will he do with these assets once they are collected, other than turn over 40% of their value to his attorney?

The Bankruptcy Court plainly erred by denying Simmons’ petition to dismiss the petition.

The Bankruptcy Court’s error was only compounded by its civil contempt sanctions. Other than its intuitive feeling that Simmons must know the location of the automobile, there is no credible evidence that she can comply with the court order requiring her to disclose its location to the Trustee. With respect to the deposit accounts, the Trnstee has already attached them, pursuant to the October 22, 1997, Temporary Restraining Order and Preliminary Injunction issued by the Bankruptcy Court. How, then, can Simmons comply with the Bankruptcy Court’s order that the monies from these accounts be turned over to the Trustee?

Of course, the court does not reach the Bankruptcy Court’s recommendation that criminal contempt sanctions be imposed by this court. Suffice it to say that Simmons is clearly entitled to a jury trial on that issue.

By separate order, the Recommendation of the Bankruptcy Court will be rejected. The Order of the Bankruptcy Court denying the debtor’s petition to dismiss her bankruptcy petition will be reversed.

Done this 19th day of February, 1998. 
      
       The court reserves the right to appropriately substitute, revise and/or edit this opinion at a later date. A prompt decision on the pending issues necessitated the filing of the opinion in rough form.
     