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Estate of Spiegel v. Western Surety Co.8/9/2005
tituted by Rayner on June 21, 2000. We do not believe that a creditor should be allowed to postpone the date of his so called "actual" injury, and thereby toll the statute of limitations, by means of his own inaction.
. In this regard, we note the meritlessness of Spiegel's argument that Rayner's various filings for bankruptcy prevented his collection of the judgment. This argument does not square with the timetable reflected in the record. According to Spiegel's complaint, the New Jersey judgment was first presented to the circuit clerk for enrollment on May 2, 1990, yet, also according to the complaint, the first bankruptcy proceeding involving Lydia or Donald Rayner was not filed until October 26, 1994, some four years after the first attempt to enroll the judgment. The memorandum opinion of District Judge Senter lists December 13, 1995, as the date of the first bankruptcy filed by Rayner and notes that Rayner received a discharge on July 23, 1997. Thus, Spiegel had at least four years (and possibly five, depending upon whether we use the date listed in Spiegel's complaint, October 26, 1994, or the date listed in Judge Senter's opinion, December 13, 1995), beginning on May 2, 1990 to take action to collect the judgment against a solvent debtor, and any automatic stay issues from the Rayners' bankruptcy proceedings would not have affected Spiegel until four or five years after he first attempted to enroll the judgment. Had Spiegel been timely and diligent in seeking to enforce his judgment, he would have taken some action during the four or five years in between the time of his first attempt to enroll the judgment and Rayner's first filing for bankruptcy.
. Very notably, the "actual injury" alleged by Spiegel to have taken place in 2002 or 2003 came about as a result of Spiegel's finally making a meaningful attempt at collection. This involved Spiegel's finally trying to collect through the bankruptcy proceedings instituted in 2000. Spiegel attempted to make much of the fact that on June 9, 1997, when he concedes he discovered the clerk's error, Rayner was in bankruptcy. Conveniently, however, Spiegel neglects to mention that Rayner's bankruptcy pending on June 9, 1997, was concluded and a discharge thereon entered on July 23, 1997, a little over a month later. All of this is to say that the picture painted by Spiegel, depicting himself as bound and prevented from collecting his judgment for years on end due to the actions of others, does not square with the facts in the record.
. Therefore, we are unpersuaded, to say the least, by Spiegel's arguments (a) that he suffered no actual injury until twelve or thirteen years after the act of negligence by the clerk and (b) that Rayner's various bankruptcy filings interfered with his collection attempts. On the contrary, we find that Spiegel's own inaction was a far greater interference than anything Rayner or any of the appellees did in this case. Spiegel had at least four (and possibly five) years to attempt to collect on the judgment from the date of the first attempt to enroll the judgment. During this entire four or five year period, Rayner was solvent. After four or five years of inactivity on June 9, 1997, when Spiegel finally discovered the clerk's error, he found Rayner to be in bankruptcy; however, the bankruptcy pending at the time was concluded and a discharge issued a little over a month later. Another three years of inactivity on the part of Spiegel then ensued, until finally, in 2000, Spiegel tried to collect the judgment through Rayner's subsequent bankruptcy, filed on June 21, 2000. Thus, our review of the record reveals as many as eight years of inactivity, during which time Spiegel made no attempt to collect on his judg
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