ELR Citation: ELR 21221
No(s). s. 88-704P, -705P (D.R.I. Jan 30, 1991)

The court holds that neither the automatic stay provision of the Bankruptcy Code nor the Consumer Credit Protection Act (CCPA) precludes plaintiffs from seeking a supplemental attachment against a Federal Water Pollution Control Act violator who was involuntarily forced into bankruptcy after the original attachment was granted. The court issued a preliminary injunction against defendant residential developer for discharging raw sewage into the Sakonnet River in Rhode Island. When defendant stopped carrying out his duties under the injunction, the court found him in contempt and entered an attachment order of his assets and 25 percent of his net salary. Subsequently, three of defendant's creditors filed an involuntary petition under Chapter 11 against defendant. Plaintiffs now seek to increase the existing attachment, because the current weekly deposit from defendant of nearly $1,400 is insufficient to cover the anticipated weekly costs of nearly $7,600.

The court first holds that the exemptions to the automatic stay provided in §362(b)(4) and (b)(5) of the Bankruptcy Code apply since this action is to enforce a governmental unit's police or regulatory power, and to enforce a non-money judgment pursuant to that power. This was not an action at law to recover a debt owed by defendants to plaintiffs for a sum certain, nor redress for past harms, but rather an order issued because defendant was in contempt. Thus, the order of attachment is in support of a purely equitable decree and defendant does not fall within the money judgment exception.

The court next holds that, although the CCPA limits garnishments to 25 percent of a person's disposable weekly earnings, the Act does not apply in this case. The legislative history of the Act reveals that Congress intended it to protect struggling consumers from unscrupulous creditors, not to be used by polluters as a means of avoiding their court-ordered obligations to carry out the requirements of federal and state environmental law. Moreover, since the attachment in this case cannot be transformed into a judgment for money damages due and does not reflect a debtor/creditor relationship, the attachment is not a garnishment within the meaning of the CCPA. However, the court requests additional information to determine how much additional money will be needed to fund the remedial activities without impairing defendant's ability to support his family.

Counsel for Plaintiff
Michael Rubin, Special Ass't Attorney General
72 Pine St., Providence RI 02903
(401) 274-4400

Counsel for Defendant
Barry J. Kusinitz
Temkin & Miller
1400 Turks Head Pl., Providence RI 02903
(401) 751-2400