Tarakjian v. Krone

Opinion

BOREN, J. —Appellant1 challenges the trial court’s power to amend nunc pro tunc a default judgment entered against him. Appellant claims that the judgment being amended was void because it was rendered during the pendency of his bankruptcy, in violation of the automatic stay provisions of the federal bankruptcy law (11 U.S.C.A. § 362). From this, appellant concludes that the trial court had no jurisdiction to amend a void order.

Facts

Respondents Garbis Tarakjian and Garbis Jewelers filed their suit for breach of contract, fraud, money and conversion on February 1, 1982, erroneously spelling appellant’s name in the summons and complaint as “Kron.” Appellant does not dispute that the correct spelling of his name is “Krone.” Nor does he dispute that he is in fact the individual respondents meant to sue.

Two years later, in March 1984, George Krone filed for bankruptcy, thereby staying all proceedings against him and his property. Respondents claim that they had no notice of the pendency of appellant’s bankruptcy because they were not listed as creditors in appellant’s bankruptcy petition.2 Appellant does not dispute that his bankruptcy petition failed to list respondents as creditors, despite their pending lawsuit against him.

[1246]Respondents obtained a default against “George Kron” and his businesses in the amount of $75,500 on December 14, .1984. On June 20, 1986, respondents sought to amend the judgment nunc pro tunc to reflect the proper spelling of appellant’s name by bringing a motion pursuant to Code of Civil Procedure section 473. In opposition to the motion, appellant filed papers claiming that the judgment against him was void because it was entered during his bankruptcy; therefore, the court could not amend the void order. At the same time, appellant filed a declaration stating that his bankruptcy case had been dismissed on June 10, 1986.

At the hearing on respondents’ motion on July 3, 1986, the trial court focused on two issues: first, whether there was a bankruptcy proceeding pending at the time it rendered judgment against appellant, and, second, whether a creditor who is not named in a bankruptcy petition is barred from continuing his action. The court allowed appellant two weeks to provide supplemental papers addressing these issues, but ultimately allowed the correction of appellant’s name as requested by respondents.