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All Reporters → bankr-lexis → Volume 1984

Opinions in bankr-lexis Volume 1984

MEMORANDUM AND DECISION This motion was brought by Michael Si-dore, Chapter 7 debtor, to secure costs and reasonable attorney’s fees for his defense of an action brought by a creditor, The Commercial Union Insurance Company, to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(2). Following trial, this Court determined by order and judgment dated October 24, 1983 that...
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ORDER Pursuant to this Court’s oral ruling from the bench at a hearing held on November 15, 1984 on a motion by two secured creditors for relief from the automatic stays (11 U.S.C. §§ 362 & 1301) so as to foreclose on the Debtor’s and her brother’s and father’s home, the Debtor has filed an “outline of Debtor’s proposal to cure arrearage and to amend Chapter 13 Plan” and a “supplement” to that ou...
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ORDER DISMISSING THE UNSECURED CREDITORS’ COMMITTEE’S MOTION FOR AUTHORITY TO SELL PROPERTY FREE AND CLEAR OF LIENS The Unsecured Creditors’ Committee brought a motion for appointment of a trustee and for authority to sell property free and clear of liens in this case. The motions were first on for hearing on December 19, 1984 before this Court. The motions were noticed to all creditors a...
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*988 OPINION The issue at bench is whether an automobile used by a debtor in his occupation as an insurance salesman is a tool of the trade. The question is presented on the debtor’s motion to avoid a creditor’s security interest in the vehicle pursuant to § 522(f)(2)(B) of the Bankruptcy Code (“Code”). 11 U.S.C. § 522(f)(2)(B). For the reasons stated herein, we will grant the de...
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MEMORANDUM AND ORDER The Court has for consideration the following Motions for Stay Pursuant to § 105 of the Bankruptcy Code, viz: 1. By Elwyn F. Boitz and Robert C. Pacilli to stay proceedings against them as guarantors in the case of Sugarbush Valley, Inc., vs. Sugarbush Associates Co., Elwyn F. Boitz and Robert C. Pacilli, Consolidated Docket Nos. S 259-82 Wnc and S 208-82 Wnc, be...
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MEMORANDUM AND ORDER The matter is before the court on the motion of the First Vermont Bank and Trust Company (Bank) to have amended this court’s order of November 21, 1984, 44 B.R. 505 (Bkrtcy.D.Vt.1984). The November 21st order issued with respect to the Bank’s motion for relief from stay. At the time the Bank filed the instant motion it also filed a notice of appeal with respect to the Novem...
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*42 MEMORANDUM OF OPINION AWARDING SANCTIONS AGAINST COUNSEL FOR DEBTOR FOR ABUSE OF THE EX PARTE MOTION PROCESS INTRODUCTION The matter before the Court concerns the motion for sanctions of $1,544.27 against Debtor’s counsel Anthony Despol for abuse of the ex parte motion process. The motion is made pursuant to 28 U.S.C. § 1927 upon the ground that Des-pol’s...
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MEMORANDUM OPINION ON MOTIONS TO DISMISS THIS IS a Chapter 11 case and the matters under consideration are two Motions to Dismiss the case which was commenced by a Voluntary Petition for Relief under Chapter 11 filed by Jesus Loves You, Inc., (Debtor). One Motion was filed by the State of Florida and the other by Robert Thomas who was, at least up to a certain point in time, closely connected w...
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MEMORANDUM OF DECISION On April 4, 1984, Carl Leroy Grant filed a petition under chapter 7 of the United States Bankruptcy Code in the United *266 States Bankruptcy Court for the District of Maine. At the time the petition was filed, a suit was pending against the debtor in the Penobscot County Superior Court. Gray v. Grant, Docket No. CV-84-145. The suit, arising ...
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*263 MEMORANDUM OF DECISION On April 4, 1984, Carl Leroy Grant filed a petition under chapter 7 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Maine. At the time the petition was filed, a suit was pending against the debtor in the Somerset County Superior Court. St. Louis v. Grant, Docket No. CV-82-287. The suit, arising ...
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MEMORANDUM OPINION AND ORDER The unsecured creditors committee has made an application for reimbursement of expenses incurred for attendance at a meeting of the committee in Washington, D.C. Section 1102 of the Code directs the court to appoint such a committee. Its duties are specified in Section 1103 of the Code. The committee is authorized to employ professionals, Section 1103(a), to p...
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ORDER ALLOWING MOTIONS FOR SUMMARY JUDGMENT, ESTABLISHING LIABILITY, AND DETERMINING DAMAGES This matter comes before the court upon the plaintiffs’ two motions for partial summary judgment to establish liability of the defendant and to determine the amount of damages. This adversary proceeding is an action brought by the debtor, Governor’s Island, a Limited Partnership, and Alien-Dukes —...
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OPINION The predominant issue before us is whether we should grant that aspect of a creditor’s motion to dismiss one count of the debtors’ complaint in which the debtors seek to open a state court judgment against them without having alleged that the judgment was a product of fraud, collusion, duress or a lack of jurisdiction. For the reasons stated herein we conclude that we may not open the jud...
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MEMORANDUM OPINION The Chapter 7 debtor has filed, pursuant to § 522(f)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 522(f)(2)(A), a motion to avoid the nonpossessory, nonpurchase-money security interest of Beneficial Consumer Discount Company (“Beneficial”) in her house, *986 which is located on leased land. Beneficial opposes this motion. During the hearing of this matter, upon new information...
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ORDER DENYING MOTION TO AVOID LIEN This chapter 7 debtor seeks (C.P. No. 13) avoidance under 11 U.S.C. § 522(f) of a lien evidenced by a Final Judgment in the amount of $38,824 entered on July 25, 1984 by the Circuit Court for the Fifteenth Judicial Circuit of Florida in Case No. 84-2947 CA (L) B. The debtor alleges that this lien was a judicial lien which impairs an exemption and therefore is ...
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MEMORANDUM DECISION Debtors seek an order avoiding a judicial lien on their mobile home and the land on which it is situated. The lien was recorded on August 15, 1984, by the Estate of John Gates. On September 5,1984, debtors filed a Declaration of Homestead upon the same property. Debtors thereafter filed for relief under chapter 13 of the Bankruptcy Code. Debtors base their request upon § 5...
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MEMORANDUM Before the Court is the objection of the Trustees of Tufts College and College of the Holy Cross (“the creditors”) to confirmation of the debtor’s Chapter 13 plan and their Motions to Dismiss the Chapter 13 case. A hearing on both matters was held on May 11, 1984. Based upon the pleadings before me and the undisputed facts presented at the hearing, I find and rule as follows. The d...
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DECISION ON OBJECTIONS TO DISCHARGE Jenny Reid Marcus, a “palimony” judgment creditor in the amount of $203,592.96, seeks to deny the debtor’s discharge for various reasons under 11 U.S.C. § 727, including the accusation that he sold his three-level Martha’s Vineyard house on Chappaquiddick Island, featured in “House & Garden” and “Architectural Record,” to a friend twenty days after her ...
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ORDER DENYING TRUSTEE’S MOTION TO ASSUME UNEXPIRED LEASE The trustee’s motion to assume an unexpired business lease (C.P. No. 93) was heard on December 21. The trustee has found a purchaser willing to pay $14,100 for the unexpired term. The landlord has objected, arguing that the trustee’s application comes too late and has been rendered moot by 11 U.S.C. § 365(d)(1): “In a case under chapter...
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ORDER ON FLORIDA NATIONAL BANK’S RENEWED MOTION TO DISSOLVE INJUNCTION THIS IS a Chapter 11 case and the immediate matter under consideration is a Renewed Motion to Dissolve Injunction filed by Florida National Bank f/k/a Royal Trust Bank (Bank). The Bank seeks the entry of an Order dissolving an injunction issued by this Court on January 25, 1984 which prohibited the Bank to undertake any steps t...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT AVOIDING TRANSFER The plaintiff trustee in bankruptcy brings this action to avoid and recover a certain transfer of the debtors’ interest in certain real property to the defendants within the year next preceding bankruptcy under § 548 of the Bankruptcy Code. After joinder of the issues by the pleadings, the action came on before the bankru...
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DECISION AND ORDER DENYING MOTION TO FILE ANSWER OUT OF TIME The defendant Rumford Plumbing & Heating Corp. has filed a motion for leave to file out of time an answer to the trustee’s cross-claim. For the following reasons the motion is denied. *597 Defendant seeks relief pursuant to the provisions of Bankruptcy Rule 9006(b)(1): [T]he court for cause shown may ... on mo...
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MEMORANDUM AND ORDER The South Carolina National Bank (“SCN”) commenced this adversary proceeding to determine the priority of liens claimed by SCN, Republic National Bank (“Republic”) and Farmers Home Administration (“FHA”) on certain funds held by the Trustee for distribution to creditors. For the reasons hereinafter set forth, the court concludes that the liens of SCN and Republic are superior ...
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MEMORANDUM This matter is before the court on cross motions for summary judgment filed by both the trustee for the debtor and by St. Louis Fuel & Supply Company, Inc. (hereinafter referred to as the “defendant”). This action is part of a number of consolidated preference actions brought by the trustee against a number of defendants who either supplied fuel to the debtor or owned towboats ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came on for hearing before the Honorable Sidney C. Volinn, Bankruptcy Judge, on October 26, 1984 on Plaintiff’s motion for a preliminary injunction and defendants’ cross-motion to dismiss Plaintiff’s Complaint. Plaintiff appeared through its authorized representatives, Ole Nelson, President and shareholder, Alex Campbell, Secretary-Treasurer a...
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MEMORANDUM AND ORDER The Court has before it for consideration the Complaint of Warren Withered for Re*956lief from Stay and for Recovery of the Firearms hereinafter described filed on August 30, 1984. Both the Debtor and the Committee of Unsecured Creditors oppose the Complaint. FACTS The Debtor, STN Enterprises, Inc., was organized as a corporation on August 6, 1982 for the purpose of engaging i...
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MEMORANDUM OPINION Two issues are before the Court: (1) The Court must determine whether the bankruptcy court has subject matter jurisdiction of the objection to discharge and the dis-chargeability complaint under Section 727 and 523(a)(2), (4), and (6) 1 of the Code respectively, and (2) the Court must also decide whether abstention under 28 U.S.C. Section 1334(c)(1) (1984) or 28 U.S.C. Sect...
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ORDER GRANTING MOVANT RELIEF FROM THE AUTOMATIC STAY EFFECTIVE JANUARY 19, 1985 The matter of the motion of Wenhope Associates for relief from the automatic stay came on before the court for hearing on December 19, 1984, in Little Rock, Arkansas, whereupon the movant appeared by counsel, John C. Calhoun, Esquire, and the respondent debtor also appeared by counsel, Charles W. Baker, Esquir...
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MEMORANDUM OF OPINION DENYING DEBTOR’S DISCHARGE INTRODUCTION This matter is before the Court upon the plaintiffs’ complaint objecting to the debt- or’s discharge pursuant to 11 U.S.C. § 727(a)(4)(A). The complaint alleges that the debtor knowingly and fraudulently made a false oath on Schedule B-l of his petition filed September 21, 1983 and at the meeting of creditors on October 25, 1983,...
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MEMORANDUM OF OPINION AWARDING SANCTIONS AGAINST DEBTOR AND HIS ATTORNEY ISSUE This case is a reflection of an increasing abuse of the judicial process by debtors whose sole purpose for filing multiple bankruptcy petitions is to stay the foreclosure on real property. The issue before the Court is whether sanctions should be imposed upon both the debtor and his attorney for the damages suffe...
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FINDINGS OF FACT CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and two matters are under consideration. The first *35 matter to be considered is the discharge-ability, vel non, of a debt owed by Richard L. Rowe, (the Debtor) to First Tennessee Bank f/k/a United American Bank of Knoxville. The second matter for consideration is the Debtor’s right to the pr...
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STATEMENT OF THE CASE On June 1, 1984, Frank M. Flanders, Debtor, filed a petition under Chapter 11 of *223 the United States Bankruptcy Code. On October 23, 1984, Debtor filed a “Motion to Use Cash Collateral and for Determination of Secured Status.” The motion asks the Court to determine the amount of the secured claim held by the Farmers Home Administration, United States D...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT The hearing on plaintiffs motion for summary judgment took place on November 8, 1984, at which time the Court considered the undisputed facts as established by the pleadings, affidavits, and testimony of the defendant, Lee Fulks. Based upon that evidence the Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT 1. The plainti...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court upon remand of the above entitled proceedings by District Judge Milton I. Shadur. A motion to abstain was brought before Judge Shadur by the Devon Bank, one of the named Defendants. In remanding the matter to this Court, Judge Shadur entered an Order “requiring the Bankruptcy Judge to whom this case is assigned to make an ini...
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MEMORANDUM OF DECISION On January 19, 1983, an involuntary bankruptcy petition under chapter 11 of the United States Bankruptcy Code was filed against Acme-Dunham, Inc., in the United States Bankruptcy Court for the District of Maine. The plaintiff in this action is the duly appointed trustee of the debtor’s estate. The defendant is a foreign corporation with its principal place of busine...
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OPINION AND ORDER This matter came on to be heard upon the plaintiffs complaint to have the defendant/debtor’s liability for a bank loan declared nondischargeable under § 523(a)(2)(B), based on allegations that the debtor issued a false financial statement upon which the bank relied. The bank alleged that the balance of debtor’s loan obligation was nondischargeable because he made ma...
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ORDER This matter is before the court on a motion by the debtors-in-possession (hereinafter referred to as “debtors”) to compromise and settle a $24,051.79 secured claim of Dearborn & Ewing (hereinafter referred to as “D & E”) for $13,500. The Federal Deposit Insurance Corporation (hereinafter referred to as “FDIC”), an unsecured creditor of the estate, has objected to the compromise, arg...
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ORDER The above-captioned matter came on before the undersigned United States Bankruptcy Judge on October 24, 1984, upon Debtors’ Motion for Lien Avoidance pursuant to 11 U.S.C. § 522(f). Debtors appeared personally and by their attorney, James P. Fossum, Legal Aid Service of Northeastern Minnesota. Production Credit Association of St. Cloud (hereinafter “PCA”) appeared by its attorney, S...
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REPORT AND RECOMMENDATION OF BANKRUPTCY COURT TO DISTRICT COURT THAT RESPONDENTS BE ADJUDGED IN CONTEMPT OF COURT FOR FAILURE AND REFUSAL TO OBEY THE COURT’S ORDER OF JULY 25, 1984, 46 B.R. 807, AND SUBJECTED TO APPROPRIATE COERCIVE MEASURES TO ENFORCE COMPLIANCE During the early pendency of the within chapter 13 proceedings, the garnishee in garnishment proceedings in a Kansas state cour...
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DECISION AND ORDER This matter is before the court upon a complaint filed June 19, 1984, by John T. *981 Ducker, Trustee in Bankruptcy, to recover an alleged avoidable transfer of $5000 to defendants, The Isaac Building Corporation, Isaac Building Company, and the Isaac Corporation (hereinafter referred to as Isaac) and their attorneys Shumaker, Loop & Kendrick (hereinafter r...
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MEMORANDUM In this adversary proceeding, objections were filed by the Defendant to a Motion by the Unsecured Creditors’ Committee to intervene in an adversary proceeding filed by the debtor. The motion, inter alia, alleges that intervention should be permitted as the Movant’s claim and the subject proceeding do have questions of both law and fact in common with those pending before the co...
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MEMORANDUM This is a suit by a chapter 11 debtor corporation to enjoin the Internal Revenue Service from attempting to collect a 100% penalty from the debtor’s officers or employees who were responsible for withholding taxes from employees’ wages and paying the taxes to the government. The effect of the penalty is to make the responsible officers and employees liable for the taxes that th...
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MEMORANDUM A. Fassnacht and Sons, Inc., was a truck equipment dealer in this city for many years before November 12, 1980, when it filed a petition in bankruptcy for reorganization under chapter 11 of the Bankruptcy Code. Reorganization became unlikely, and on April 16,1981, the case was converted to a liquidation case under chapter 7 of the Code. Richard P. Jahn, Jr., was appointed trust...
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MEMORANDUM OPINION AND ORDER The Plaintiff, a debtor corporation, brought this action to enjoin the Internal Revenue Service from collecting from one of its officers, directors and part-owners personally a 100% tax penalty for unpaid pre-petition federal withholding and employment taxes. The Court granted a Temporary Restraining Order to prohibit the Internal Revenue Service from selling ...
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MEMORANDUM AND ORDER This matter is before the Court on the Complaint of David Barr, et als., against the Debtor, STN Enterprises, Inc., to reclaim possession of certain firearms hereinafter described, their Motion for Relief from Stay, and their Objection to Sale of Firearms, each filed October 16, 1984. *952Both the Debtor and the Committee of Unsecured Creditors oppose the Complaint and Motion...
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OPINION AND ORDER This is a chapter 7 case in which Independence Bank Madison (“Independence Bank”) has moved for termination of the automatic stay and abandonment of a bank account. The trustee has objected. The matter has been fully and ably briefed by counsel. Debtor, Woodworks Contemporary Furniture (“Woodworks”) entered into a lease with the Equitable Life Assurance Society (“Equitable”)...
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MEMORANDUM DECISION AND ORDER Elizabeth Walz (“Walz”) filed for bankruptcy on January 7, 1983 under chapter 11. On August 1, 1984, Prairie City Bank (“the bank”) was granted relief from stay allowing it to proceed in state court to replevin farm equipment and livestock covered by a security agreement between Walz and the bank. After obtaining a re-plevin judgment by default the bank scheduled a...
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Findings of Fact, Conclusions of Law; ORDERS, with Memorandum, Denying the Motion of Metropolitan Life Insurance Company and First National Bank of Dubuque to Lift the Automatic Stay The final hearing on the Motion of Metropolitan Life Insurance Company and First National Bank of Dubuque to lift the automatic stay imposed by this Court upon the filing of the Chapter 11 bankruptcy by W.S. ...
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MEMORANDUM DECISION In this proceeding the trustee seeks to avoid and recover as fraudulent transfers, certain substantial payments made by defendant Barnes to defendant Oxford Bank and Trust. The trustee alleges that Barnes, sole stockholder and director of the debtor, caused funds of the debtor to be paid Oxford in satisfaction of obligations of Barnes, Barnes’ wife and another entity control...
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DECISION These two adversary proceedings were filed in the same estate case 3-82-02207 in which Bobby and Emma Brooks are Debtors. Paul D. Gilbert as Trustee in Bankruptcy for the Debtors is the Plaintiff in each case. In Adversary Proceeding 3-83-0255 the Defendant is Chloe Baker. In Adversary Proceeding 3-83-0256 the Defendant is James Baker. The complaint in each case is exactly the same i...
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DECISION Mid*America Federal Savings and Loan Association filed a Complaint For Relief From Automatic Stay. The Defendants are the Debtors and Trustee, Noland. The property is real estate. Plaintiff alleges *968 there is no equity in the premises and that Plaintiff lacks adequate protection. The answer of the Debtor alleged the mortgage was signed by them under duress and coercion and that ...
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OPINION The issue presented to us for resolution is whether we should grant the debtor’s motion to compel an automobile finance company to turn over the certificate of title to an automobile when the finance company’s security interest, which is represented by its retention of that title, has been transferred to an adequately funded escrow account. We hold that the certificate of title should b...
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ORDER On August 26, 1983, the above-named debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. An objection to confirmation was filed by the Georgia Higher Education Assistance Corporation (“GHEAC”) on December 9, 1983 alleging, inter alia, that the debtor’s plan was not proposed in good faith. Upon the consent of the parties, an evidentiary hearing was held before the ...
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DECISION AND ORDER Philipps Ag Chemical Co., Inc. (“Phi-lipps”) was granted a judgment against the debtors Lyle and Sandra Schneider (“the Schneiders”) on April 2, 1984. The Schneiders filed in bankruptcy under chapter 11 ninety-one days later, on Monday, July 2, 1984. As debtors in possession, the Schneiders seek to have the judgment lien of Philipps avoided as a preference under 11 U.S.C. § 5...
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MEMORANDUM DECISION AND ORDER In 1977 the debtors (“Kienols”) purchased farm property under a land contract (“the land contract”) from the Aeblys. In 1983 the Kienols executed an assignment of their vendee’s interest in the land contract to the Bank of New Glarus (“BNG”), as security for an Agricultural Universal Note. On July 30, 1984 the Kienols filed for bankruptcy under chapter 11, and shortly...
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ORDER DENYING APPLICATION FOR COMPENSATION AND ORDERING REIMBURSEMENT COMES ON for consideration the application for payment of attorneys’ fees filed by G. Keith Griffith on behalf of the Wood Law Firm pursuant to proper notice. One objection was filed by National Surety Corporation, a creditor. Evidence was taken on June 29, 1984 by this Court. The Court has reviewed the evidence pr...
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MEMORANDUM OPINION This matter came before the Court upon the complaint of the trustee, George W. *191Sadler, Jr., against L. Tyler Garrett, the debtor’s son, to determine the true ownership and title to a certain Dusenberg race ear. The defendant answered the complaint alleging that the property was a gift from his father to him and, thus, the trustee in bankruptcy has no interest in the automobi...
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MEMORANDUM OPINION This matter is before the Court on the motions of plaintiff, the Trustee for the bankruptcy estate of Julia Maxine Dawson, and defendants, First Alabama Bank of Sumter County (the Bank) and Mrs. Mattie D. Hall. The Trustee initiated this adversary proceeding by filing a complaint seeking the turnover of the proceeds of a certificate of deposit and a savings account whic...
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OPINION This matter is before the Court on the motion of creditor Ralph Buckholtz to lift the automatic stay to allow a judicial foreclosure sale of real property encumbered by Buckholtz’s second mortgage. The property is necessary for the debtors’ reorganization and the debtors have substantial equity in the property. Nevertheless, the stay will be modified to allow interest to accrue at...
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MEMORANDUM OF DECISION Before the Court are two fee applications filed by counsel for Guy Apple Masonry Contractor, Inc., debtor in possession herein (“Guy Apple” or “debtor”). Creditor Bricklayers Trust Fund (“Fund”) objected that certain itemized services were not performed for the benefit of the estate and the results achieved did not justify the fees requested. 11 U.S.C. § 330(a)...
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ORDER ON EXEMPTIONS The trustee’s objection (C.P. No. 12) to the debtor’s claimed exemptions (C.P. No. 1) was heard on November 29. The debtor claims all of his household goods and furnishings to be exempt as an estate by the entirety held jointly with his wife who is not a debtor. The trustee claims that half of the value of the personal property is subject to the claims of creditors. It...
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REASONS FOR JUDGMENT Mercantile Texas Credit Corporation (“Mercantile”) filed this motion for relief from the stay, asserting an assignment of the Debtor’s pre-petition accounts receivable. The Court has determined to deny the motion for relief from the stay on the grounds that Mercantile’s security interest is invalid and not effective against third parties under Louisiana law. The assignment ...
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*569 MEMORANDUM AND ORDER The Debtor, Fargo Biltmore Motor Hotel Corporation, filed a Complaint with the Court on December 7, 1984, requesting avoidance of a judgment of foreclosure pursuant to section 548 of the Bankruptcy Code. The Debtor cites as an additional basis for relief Chapter 13-02 of the North Dakota Century Code which is made applicable to bankruptcy proceedings through section ...
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MEMORANDUM AND ORDER The matter is before the court on the complaint of Vincent J. Tudisco (Tudisco), a creditor in the case, for money damages resulting from the debtor’s breach of a settlement agreement. A hearing on the complaint was held on October 25, 1984. From the records in the case and the testimony adduced at the hearing, facts as set forth below were established. FACTS On October 27, 19...
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MEMORANDUM AND ORDER The issue before the Court is whether Kenneth Cestone is entitled to recover from the Debtor two Colt Revolvers under his Motion for Reclamation filed July 31, 1984. Both the Debtor and the Committee of Unsecured Creditors oppose this Motion. FACTS The Debtor, STN Enterprises, Inc., was organized as a corporation on August 6, 1982 for the purpose of engaging in the purchase an...
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MEMORANDUM OPINION ON S & G NATIONAL INVESTMENTS, INC.’S MOTION FOR SUMMARY JUDGMENT This matter comes before the Court upon motion of S & G National Investments, Inc., for summary judgment on its motion for relief from the automatic stay imposed by § 362(a) of the Bankruptcy Code. It presents the following issue for determination: in the context of a hearing on a motion for relief from t...
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MEMORANDUM ORDER This matter came on for hearing on November 16, 1984, on objection of the Trustee to the Debtor’s claimed exemption of certain real property. Based on the testimony taken at the hearing, briefs submitted by counsel, and upon the entire Court file, the Court makes this Order pursuant to. the Federal Rules of Bankruptcy Procedure. I. Debtor is an unmarried, middle-aged man wh...
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MEMORANDUM OPINION AND ORDER The instant action was commenced by a Complaint filed on May 17, 1984, by First Bank of South Dakota (BANK) seeking a determination of the nature and extent of its security interest in and to property of the Debtors. The controversy is principally concerned with the effect of a security agreement entered into on November 8, 1982. The Debtors deny that this security ...
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OPINION One of several issues presented for discussion in the matter at bench is whether we should pierce the corporate veil of an entity other than the debtor and subject that entity’s president to one of its corporate liabilities. For the reasons expressed herein we conclude that the corporate veil should not be pierced. The facts of this case are as follows: 1 The debto...
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OPINION The issue before the Court is whether to approve the debtor’s application [sic motion] to pay a pre-petition debt owed for contributions to its employee benefit plan. For the reasons stated herein, we will deny approval of the application. The facts of this case are as follows: 1 In 1983, Wexler Knitting Mills (“debtor”) filed a petition for reorganization under Ch...
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MEMORANDUM The issue is whether the defendant’s security interest is limited to the equipment and machinery specified in the security agreement or whether it extends to inventory and accounts receivable only identified in the financing statement and other documents. This court holds that where there is an unambiguous security agreement that does not reference or incorporate the financing ...
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MEMORANDUM AND ORDER ON TRUSTEE’S PROPOSAL TO SELL RIGHT OF SURVIVORSHIP At issue is the trustee’s right to sell a right of survivorship in a marital residence owned by the debtor and his nondebtor *146 spouse as tenants by the entirety. Debtor asserts his survivorship interest is within the scope of the Tennessee homestead exemption and that the trustee is barred from sellin...
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MEMORANDUM OPINION JAMES W. TOREN and WILMINGTON TRUST COMPANY, as Trustees of the BRNF LIQUIDATING TRUST, filed the above Adversary Proceeding on October 30, 1984, (No. 484-4375) in this Court seeking (1) a declaratory judgment that a proposal by Braniff, Inc. to enter into Joint Services and Operations Agreements with third-party airlines will violate Sections, 6, 8 and 20 of the Lease ...
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MEMORANDUM OPINION This matter came before the Court on the motions of the United States Trustee and the Bank of Powhatan to dismiss or convert to Chapter 7 Chesmid Park Corporation’s Chapter 11 petition. After notice and a hearing on November 20, 1984 on the stated motions, the Court took the matter under advisement. After deliberation upon the evidence adduced at the hearing, this Court...
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MEMORANDUM OPINION Lucinda B. Ramey (Debtor), filed a complaint to avoid the lien of Dominion National Bank (Bank) on a Volkswagen automobile pursuant to 11 U.S.C. § 522(f). The parties submitted the case for decision on the stipulated facts and briefs filed with the Court. The stipulated facts are essentially that the Debtor uses the automobile to take her daughter to and from school. The De...
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Bricker Systems, Inc., the debtor in this Chapter 11 case, has filed a motion asking the court to approve an amended lease between itself and Minneapolis Teachers’ Retirement Fund Association and to modify the automatic stay imposed by 11 U.S.C. § 362(a). The matter was heard on October 25,1984, and the following appearances were made: The debtor, Bricker Systems, Inc., (Bricker) appeared by it...
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*941 MEMORANDUM AND ORDER BACKGROUND The petitioning creditors filed an involuntary petition in bankruptcy against Contemporary Mission, Inc. (CMI) on August 6, 1982. CMI filed an answer contending that it is not subject to an involuntary petition because it is not a moneyed, business, or commercial corporation. 1 Notwithstanding the Certificate of Amendment of a ...
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ORDER ABSTAINING FROM TAX DISPUTE The debtor has elected to present a tax dispute with the I.R.S. in this court. This court abstains. The debtor filed her chapter 7 petition on August 16 listing only one creditor, the I.R.S. She has only nominal assets, and admittedly the sole purpose of this bankruptcy is to contest the debtor’s liability for a $235,981 tax deficiency and fraud penalty of he...
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ORDER ON EMERGENCY APPLICATION FOR AUTHORITY TO BORROW ON SUPER PRIORITY BASIS NOT IN THE ORDINARY COURSE THIS IS a Chapter 11 Reorganization caSe and the immediate matter under consideration is an Application for Authority to Borrow on Super Priority Basis filed by the Debtor, St. Petersburg Hotel Associates, Ltd., (Debtor), a Wisconsin limited partnership, doing business as the Bay-front Conc...
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ORDER The above-entitled matter came on for hearing before the Honorable Margaret A. Mahoney, Judge of Bankruptcy Court, on November 2,1984. Specifically, the Debtor objects to fees claimed by the secured creditor BarclaysAmerican/Business Credit, Inc. (Barclays), pursuant to 11 U.S.C. § 506(b). This Court has jurisdiction to hear and determine this matter pursuant to 28 U.S.C. §§ 1334 an...
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OPINION Oft consideration of the motion for turn over filed by the Debtor, Grain Services, Inc., hereinafter referred to as Grain Services and/or Debtor; and the objections to turn over filed by State Bank of Como, hereinafter referred to as State Bank, and Thomas Florence, Jr.; all of said parties being represented by their respective attorneys of record; and the Court having heard and conside...
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OPINION AND REPORT ON ORDER AND REFERENCE DATED JANUARY 20, 1984 By order of January 20, 1984 the undersigned Bankruptcy Judge was directed by Judge Gerard L. Goettel to hear and report upon the defendant’s motion to withdraw the reference from the bankruptcy court and upon the demand for a jury trial in the district court. *929 The order defined the critical issues of this ...
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ORDER Presently before the Court is the Chapter 13 Trustee’s Complaint objecting to debtor’s claim of exempt property. Debtor, Forrest A. Brown, filed a Chapter 13 petition on July 12, 1984. He is the owner of a 1980 Ford Mustang with a fair market value of $3,600, which he claimed is entirely exempt by virtue of 11 U.S.C. § 522(d). Debtor’s exemption in his Mustang would be $1,400, if he were req...
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MEMORANDUM OPINION The only issue before us is whether the Chapter 7 debtor may avoid, pursuant to section 522(f)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 522(f)(2)(A), the security interest of the Beneficial Consumer Discount Company (“Beneficial”) in the debt- or’s house. For the following reasons, we shall deny the debtor’s application to avoid Beneficial’s security interest in her house. ...
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MEMORANDUM AND ORDER This matter is before the Court on the Motion of Richard Erdman for Relief from Automatic Stay and for possession of a belt pistol. BACKGROUND STN Enterprises, Inc., is a corporation which was organized on August 6, 1982. It has been engaged in the purchase and sale of collectible firearms and related collectibles doing business as “Atwater Arms.” Stephen T. Noyes was its pre...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT I On July 19,1983, the Debtor, Billy Junior Thomas, filed this Chapter 7 petition. On July 29, 1983, the Clerk of this Court sent out a notice to all listed creditors that the bar date for the filing of complaints under Section 523(c) of the Bankruptcy Code (“Code”) was October 17, 1983. On August 17,1983, the Debtor fil...
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ORDER GRANTING SUMMARY JUDGMENT This matter came on for hearing on the motion of the defendant for dismissal or summary judgment. Richard J. Gabriel appeared on behalf of the defendant Kenneth J. Theisen (debtor) and Joseph W. Lawver appeared on behalf of the plaintiff Edward W. Bergquist (trustee). Based on the files and records and the arguments of counsel I make the following: MEMORANDUM O...
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MEMORANDUM OPINION AND ORDER Prime, Inc., a Chapter 11 debtor, located in Springfield, Greene County, Missouri, operates an over-the-road interstate trucking company. In March of 1984 it filed in this Court a complaint alleging that one of its vehicles was damaged as a result of faulty maintenance of highways by the Illinois Department of Transportation. The State of Illinois moved to dis...
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MEMORANDUM OPINION This case presents the ever-troublesome question of drawing a line between the “alimony-support” aspect and the “property settlement” aspect of a divorce decree, for purposes of determining whether certain of the debtor’s obligations under the decree are non-dischargeable pursuant to § 523(a)(5) of the Bankruptcy Code. The “trouble” in these cases arises from the logical impo...
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MEMORANDUM AND ORDER Federal Land Bank of St. Paul (FLB) and Production Credit Association of Grand Forks (PCA) by joint Motion filed on May 8, 1984, seek relief from stay pursuant to section 362(d)(1) and (2) of the Bankruptcy Code. FLB seeks relief from stay as against real estate in which it holds a first mortgage. PCA seeks relief against the same real estate upon which it holds a sec...
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OPINION The issue at bench is whether we should grant a creditor’s motion for summary judgment in a proceeding to determine whether an involuntary petition should be dismissed. Because we conclude that there are material issues of fact regarding the existence of the prerequisites for dismissal, we will deny the motion. The facts of the case, in light of the standard for granting summ...
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44 B.R. 915 (1984) In re CUMBERLAND BOLT & SCREW, INC., Debtor. Bankruptcy No. 384-00259. United States Bankruptcy Court, M.D. Tennessee. December 11, 1984. MEMORANDUM AND ORDER KEITH M. LUNDIN, Bankruptcy Judge. The court has before it the application of Kraft, Cohen & Company for award of fees and reimbursement of expenses as accountants for the debtor and debtor-in-possession. A heari...
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MEMORANDUM AND ORDER The matter for determination by the Court is the Motion of Clark I. Fellers and Sylvia T. Fellers filed August 27, 1984 to reclaim possession from the Debtor of certain firearms. Both the Debtor and the Committee of Unsecured Creditors oppose this Motion. FACTS The Debtor, STN Enterprises, Inc., was organized as a corporation on August 6, 1982 for the purpos...
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JOINT MEMORANDUM OPINION AND ORDER This matter is before the Court upon Rule 2016 motion to fix attorney fees, wherein the Court finds and herein fixes a reasonable fee for Grundy National Bank, a secured creditor, pursuant to 11 U.S.C. § 506. John E. Kieffer, Esquire, WOODWARD, MILES & FLANNAGAN, P.C., of Bristol, Virginia, Counsel for said creditor, repre *919 ...
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MEMORANDUM OPINION MEMORANDUM OPINION Pending for determination are complaints filed by the corporate debtor, Farmers & Ranchers Livestock Auction, Inc. (“Farmers & Ranchers”), and the individual debtors, Billy Gene Davis and Mary Lavone Davis. The corporate and individual debtors seek to enjoin the United States of America, acting through the Secretary of Agriculture and the Packers...
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ORDER DENYING APPROVAL OF REJECTION OF COLLECTIVE BARGAINING AGREEMENTS This matter came on for hearing on the motion of the debtor for an order approving its rejection of two collective bargaining agreements between the debtor and the Miscellaneous Drivers, Helpers and Ware-housemen’s Union, Local No. 638, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousem...
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MEMORANDUM This case has been referred to this court by the United States District Court for the Middle District of Tennessee for action consistent with the Sixth Circuit Court of Appeals decision in this matter. The trustee has moved for the entry of judgment against the defendant, Ranier and Associates (hereinafter referred to as the “defendant”), for preferential transfers totaling $1,...
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ORDER DENYING CONFIRMATION On December 12, 1983 N.S. Garrott & Sons, an Arkansas general partnership consisting of N.S. Garrott, Jr. and James L. Garrott, filed a petition for relief under the provisions of Chapter 11 of the Bankruptcy Code. On November 15, 1983 Eastern Arkansas Planting Company, an Arkansas general partnership consisting of William Montgomery and J.L. Garrott, Jr., filed...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS an adversary proceeding which involves two Chapter 11 Debtors, Interair Services, Inc. (Interair) and Alex Matway (Matway), the President of Interair. The Court authorized joint administration of the two Chapter 11 eases because the financial affairs of Interair and Matway have been inextricably interwoven in the past. Th...
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ORDER ON MOTION FOR REHEARING AND CLARIFICATION THIS IS a Chapter 11 case and the matter under consideration is a Motion for Rehearing and Clarification filed by Mandalay Shores Cooperative Housing Association, Inc., (Association), the Debtor, who seeks relief under Chapter 11 of the Bankruptcy Code. Inasmuch as this Motion came before the Court after a variety of motions and objections, some rela...
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MEMORANDUM AND ORDER This matter came to be heard upon the debtors’ (Nantz) motion to dismiss the plaintiff’s (Piekarczyk) complaint for a determination of dischargeability of debt pursuant to Section 523(a)(2)(A) of the Bankruptcy Code. The court, having carefully considered the pleadings and memoranda submitted by the parties along with applicable case law, grants the debtors’ motion. ...
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DETERMINATION OF DEBTOR’S POST-PETITION FEDERAL TAX LIABILITY The Internal Revenue Service requested a determination of and a judgment for the amount of the Debtor’s post-petition, pre-confirmation federal tax liability, and a conversion of the Debtor’s case from Chapter 11 to Chapter 7. Two primary issues are raised by the briefs of the parties. First: are post-petition claims for tax pe...
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ORDER This matter is before the court as a . result of this Court’s Order that plaintiff show cause within 10 days from November 9, 1984 why this action should not be dismissed against the Defendant, Christine A. DeSanctis for want of prosecution for failure to file proof of service of summons upon said defendant and upon plaintiffs memorandum in compliance with show cause order. Plaintiff sought ...
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FINDING AS TO CLAIM ALLOWANCE The issue before the court is whether interest and penalties on an unpaid tax liability of a debtor in possession may qualify as a first priority administrative expense of the estate. The Internal Revenue Service filed a request for payment of administrative expenses totalling $33,074.01. This total included a post-petition tax liability of $27,-200.00 p...
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MEMORANDUM OPINION The Chapter 11 debtor has filed, pursuant to section 363 of the Bankruptcy Code, 11 U.S.C. § 363, a motion to sell all of its assets at a private sale free and clear of all liens and encumbrances against the assets for the sum of $735,000.00 plus payment to be determined at a later date for unused inventory of food and liquor. The debtor later amended its motion by requesting th...
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MEMORANDUM AND ORDER The matter is before the court on the complaint of the Debtor, Dave Noake, Inc., (Noake) to recover certain monies paid to Harold’s Garage, Inc., (Harold’s) subsequent to the commencement of this voluntary reorganization case. The facts are not in dispute. FACTS Noake is a haulage contractor who operates several tractor trailers. Harold’s is an automotive ga...
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DECISION AND ORDER Yesterday the debtors in these related cases moved jointly for an ex parte order preventing dissemination of a motion for conversion or appointment of trustee and supporting material brought on by the Marine Trust Company, N.A. (“Marine”). The debtors claim that Marine by its motion is soliciting rejections of a plan of reorganization without obtaining court approval of...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Cause came on to be heard upon a complaint for turnover of property of the Debtor, to avoid a fraudulent conveyance and for damages filed herein and the Court, having heard the testimony and examined the evidence presented; observed the candor and demeanor of the witnesses; considered the arguments of counsel and being otherwise fully advised i...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, MEMORANDUM OPINION THIS IS an adversary proceeding which was originally commenced by Lia M. Ange-les upon a Complaint to Determine Dis-chargeability of Debt, to Recover a Preferential Transfer and to Avoid a Transfer and to Avoid a Transfer as Fraudulent. *885The original complaint was filed against Milton L. Wade, The Debtor, Lucy K. Wade, and Stephanie Cates...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case and the immediate matter under consideration is the dischargeability, vel non, of a debt in the amount of $25,000 admittedly due and owing by the Debtor, Robert D. Hostetler, Jr., to Auto Owners Insurance Company (Auto Owners) and Teddy Williams, judgment creditors and the Plaintiffs in the ab...
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MEMORANDUM OF DECISION FACTS Debtor, Beacon Realty Investment Company of Salina, filed a petition for relief under Chapter 11 of the Bankruptcy Code on December 8, 1983. On January 12, 1984, the case was converted to Chapter 7. Beacon Realty was a partnership doing business under the style of “Hilton Inn” in Salina, Kansas, from April 1968 through January 1984. During 1981, debtor, employin...
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MEMORANDUM OPINION For the third time in recent days the court’s attention is drawn to trustee practices in bankruptcy liquidation cases. 1 The present matters are consolidated for consideration of the single legal issue shared by them, which is a trustee’s entitlement to a statutory commission and expenses upon the sale of fully secured property. The issue is not a new one. We...
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ORDER This matter is before the Court on a fee application submitted by Laventhol & Horwath, Accountants for the Unsecured Creditors’ Committee (hereinafter referred to as “accountants”) for work performed in this Chapter 11 proceeding. Upon consideration of the application, supporting affidavit, statements of counsel and the entire record, the Court concludes that the accountants are ent...
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*23 OPINION This matter came before the Court on its own Order to the Debtor to appear and show cause, if there by any, why this proceeding should not be dismissed pursuant to the substantial abuse provisions of 11 U.S.C. § 707(b). The Debtor appeared by Joseph Henninger, Jr., Esq. Keith Johnson, Esq., appeared as Trustee and Attorney for the Trustee. FACTS The Debtor, ...
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DECISION AND ORDER Charles Tilton Maston aka Charles T. Maston and Chuck Maston filed a voluntary petition for relief on 21 October 1983. The Debtor scheduled no secured creditors, and unsecured creditors in the total amount of $15,615.67. Of this total amount, all but $615.67 represents a personal injury judgment rendered by a state court on April 5, 1982, in favor of Dwayne Randall...
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ORDER This cause came on to be heard upon the Plaintiff/Trustee’s Motion for an Order Compelling Production of Documents, etc., Trustee’s Motion for Leave to File Interrogatories, Defendant’s Motion for a Protective Order, etc., Defendant’s Motion for an Order Compelling Discovery, and the Court’s Order of September 7, 1984 requiring, in part, that discovery status reports be filed on October 24,...
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OPINION AND ORDER This matter is before the court upon the motion of the Plaintiff, Judith Brandstadt for summary judgment against the Defendant, William John Brandstadt to find a debt incurred by the debtor under the terms of a divorce decree nondischargeable under § 523(a)(5) of the Bankruptcy Code and upon defendant’s cross motion for summary judgment. The plaintiff contends that defendant’s de...
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MEMORANDUM AND ORDER ON TRUSTEE’S SUIT FOR TURNOVER OF MILK HANDLING AND PROCESSING EQUIPMENT At issue in the within action for turnover of the Trustee of Sandy Lake Transfer, Inc., (hereinafter called debtor) against the National Farmers Organization, (NFO), et al, is the title to and right to possession of certain milk handling and processing equipment in the possession of NFO and/or their proce...
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MEMORANDUM At issue is whether a judgment debtor, Tennesco, Inc., the original payee of certain promissory notes, has any interest in the notes after sale and endorsement which may be garnished where it retained physical possession of the notes as servicing agent for sixteen savings and loan associations, purchasers of participatory interests collectively totaling one hundred percent of the face ...
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MEMORANDUM AND ORDER The matter is before the court on Air Vermont’s motion for reconsideration of the memorandum and order entered October 30, 1984. The October 30 order granted relief to Beech Acceptance Corporation (“Beech”) pursuant to Bankruptcy Code (“Code”) section 1110, with respect to an aircraft identified as Beechcraft Model C-99, serial no. U-181, Federal Aviation Administration (“F...
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MEMORANDUM OPINION This matter came before the Court for determination pursuant to Bankruptcy Rules 4003 and 9014 on the motion of VNB Capital Corporation (“VNB”) objecting to certain wages claimed exempt under Virginia law by the debtor, Dianna Elizabeth Smith (“Smith”). The matter came on for hearing on March 12, 1984. At the conclusion of the hearing the Court took the matter under adv...
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MEMORANDUM OPINION AND DECISION FACTS The plaintiff debtor, Beatrice D. Trejo, has filed a complaint for turnover of funds against the county of Sacramento. The debtor argues that the county improperly withheld $3,293.95 from her retroactive supplemental security income (SSI) disability benefits and that this action is an avoidable preference. The parties agree to the following facts. Beatr...
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ORDER In this case there was only one creditor, the first trust holder on the Debtor’s residence. The Debtor’s Plan as originally filed called for paying off the deed-of-trust arrearages in monthly installments over a three-year period. A substantial question existed as to whether the Debtor had any legal or equitable right to the property, however, because the first trust holder had foreclosed...
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MEMORANDUM OPINION AND ORDER CASE SUMMARY This matter concerns the procedural aspects of litigating turnover of property of the debtor’s estate under 11 U.S.C. § 542. 1 The Court is called upon to decide whether a Chapter 13 debtor may commence a turnover proceeding by motion. This opinion is written to encourage and facilitate a uniform practice under the Bankruptcy Rules...
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OPINION The issue presented is whether we should grant a labor union’s motion for reconsideration of our recent order denying priority status under 11 U.S.C. § 507(a)(1) and (a)(3) of the Bankruptcy Code (“the Code”) for holiday pay for employees of a debtor on the contention that our order and supporting opinion are contrary to governing law in this circuit. For the reasons given below we find th...
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*829 ORDER DENYING DEBTOR’S MOTION FOR ORDER ABATING REQUIREMENTS OF PAYMENTS BY GEORGE G. SOLAR OR HIS COMPANY TO HARRISON, THIRD PARTY DEFENDANT This matter came before the Court for hearing on November 10, 1984 on debtor’s motion for order abating the requirements of payments by George G. Solar or his company to Harrison, Third Party Defendant 1 (hereinafter referred to as Motion for Aba...
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MEMORANDUM AND ORDER This matter came before the court on Reliance Insurance Company, United Pacific Insurance Company, and Reliance Insurance Company of Illinois’ (“Reliance”) motion for summary judgment on its adversary complaint objecting to the discharge-ability of the debt owed by the debtor Gagliano. The court having considered all pleadings, memoranda, affidavits, and exhibits file...
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Stanley T. Lesser, as Chapter 11 Trustee for the Lion Capital Group, Lion Capital Associates, Blackburn Associates, Hamilton Gregg Monetary Management Ltd., and Hamilton Gregg Asset Management, Ltd. (collectively “debtors”), moves to dismiss the fraud-based counterclaims and defenses asserted by defendants pursuant to Federal Rule of Civil Procedure 9(b) and Bankruptcy Rule of Procedure 7009(b)...
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DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT The instant motion for summary judgment arises in the context of an adversary proceeding to determine the dischargeability of certain debts of the debtor pursuant to Bankruptcy Code (“Code”) section 523(a)(2)(A) and (B), and to determine whether the debtor should be denied a discharge pursuant to Code section 727(a)(3) and (7). ...
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MEMORANDUM OPINION Presently before us is Girard Bank’s application for an order directing trustee to distribute funds held in escrow to Girard Bank (“Girard”). The funds in question constitute $76,000.00, the amount that was realized from the trustee’s public sale of a parcel of the Chapter 7 debtors’ real estate. Briefly, Girard’s claimed entitlement to these funds results from the following cir...
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MEMORANDUM OPINION On or about February 1, 1981, Charles E. Sutphin obtained from John P. Bennett a 1976 International Harvester Tractor/Truck (hereinafter tractor). The Virginia Certificate of Title shows the tractor to have been titled under the name of Charles E. Sutphin. The tractor was received in exchange for two farm vehicles on which Deutz Tractor Corporation (hereinafter Deutz) had a prop...
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MEMORANDUM OPINION This matter came before the Court on an objection by the State Education Assistance Authority (“SEAA”) to confirmation of the debtors’ Chapter 13 plan. A hearing was held on October 22, 1984 for the purpose of taking evidence and hearing argument upon the stated objection. At the conclusion of the hearing, the Court took the matter under advisement. After consideration of the...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a motion for relief from stay by Richmond Fixture & Equipment Company. After holding a hearing on the plaintiffs motion for relief from stay, this Court took the matter under advisement. The parties submitted memoranda of law in *840 support of their respective positions and requested oral argument thereo...
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ORDER REMOVING L.A. STRICKLAND FROM UNSECURED CREDITORS’ COMMITTEE THIS MATTER is before the Court on the motion of the Unsecured Creditors’ Committee for the Court to remove one of its current members, i.e. L.A. Strickland, an individual owner of preferred convertible shares in The Charter Company. Mr. Strickland makes no claim of creditor status other than his ownership of those shares. Thi...
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MEMORANDUM OPINION This factually unusual fraudulent transfer proceeding presents a scenario of a creditor who has received interest payments from a debtor, which payments were clearly on account of credit extended to a third party for the benefit of the debtor. No contractual debtor-creditor relationship at any time existed between the debtor and the defendant. The picture is further complicat...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER This is a proceeding in which F/S Air-lease II, Inc. (“FSA”) seeks to recover possession of an aircraft (including engines) described herein as a lessor exercising its rights under Section 1110 of the Bankruptcy Code, 11 U.S.C. § 1110. Greycas, Inc. (“Greycas”), to the extent described herein, and Swig Investment Company Trust No...
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ORDER DISMISSING COMPLAINT This matter came before the court on the debtor’s complaint seeking to enjoin the State Attorney and complaining witnesses from prosecuting the debtor in criminal proceedings arising out of worthless check charges. The matter was heard on November 21. This debtor filed a petition under chapter 11 on May 23, 1984. A plan and disclosure statement have not been filed. ...
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ORDER A hearing was held before the undersigned on August 14, 15, 16, 17, 20 and 21 on Motion of the Mechanic’s Lien Committee in the above bankruptcy case to determine the validity, priority and extent of mechanic’s liens. Facts The Debtor, Zachman Homes, Inc., (Zach-man) is a developer/builder of residential housing units. Zachman filed for Chapter 11 protection on Novembe...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT IN FAVOR OF CITIZENS BANK OF BLYTHEDALE This is an action in which the plaintiff requests that the bankruptcy court make a determination that it has a valid, perfected, and prior security interest in some $19,-222.84 which constitute the proceeds of the trustee’s sale of certain cattle on or about January 9, 1984. In its answer to th...
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DECISION AND ORDER The creditors committee (“Committee”) of the Estate of Justin Colin (“Estate” or “Debtor”) seeks an order of this Court subordinating the punitive damages portion of the claim against the estate of David Y. Farmer, trustee in bankruptcy (“Swift Trustee”) for the Estate of Swift Aire Lines, Inc. (“Swift”). I In May, 1982, the Swift Trustee commenced an adversar...
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*531 DECISION Presently before the Court is the Chapter 13 Trustee’s Motion for Judgment on the Pleadings, filed on October 10, 1984. In his motion, the Trustee seeks a judgment in favor of debtors, Fred Thompson and Cindy Thompson, on their Motion to avoid lien on a nonpossessory, non-purchase money security interest held by Thorp Financial Services. In support of his motion, the Trustee cit...
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44 B.R. 814 (1984) In the Matter of Joyce Arbutus LENK, Debtor. Matthew Arthur VENNE, Adrian Arthur Venne and Rosemary Ellen Venne, Plaintiffs, v. Joyce Arbutus LENK, Defendant. Adv. No. 84-0003-7. United States Bankruptcy Court, W.D. Wisconsin. November 30, 1984. *815 Keith Kostecke, Jerome A. Maeder, S.C. Law Offices, Wausau, Wis., for plaintiffs. Carlton Roffa, Hales Corners, Wis., for defenda...
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DECISION This matter comes on the motion of the debtor seeking to have a creditor found to be in contempt for violating the 11 U.S.C. § 362 stay. The creditor both denies the violation of the stay and contends that his lack of written notice of the stay precludes a finding of contempt. Gerald A. Behm conducted his business of trucking and hauling as Behm Trucking out of his residence in Fort ...
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MEMORANDUM OPINION, ORDER, AND JUDGMENT Plaintiffs seek money damages from Debtor under sundry theories and a determination that these damages are non-dis-chargeable under 11 U.S.C. § 523. In June, 1981, Plaintiffs, having become entitled to approximately $1,000,000.00 from the sale of a family business, were referred to Robert L. Wade, the Debtor, and a Mr. Schwartz by their estate ...
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44 B.R. 793 (1984) In re William Henry BELK, Jr., a/k/a William Henry Belk, Debtor. MORAMERICA MORTGAGE COMPANY, an Iowa corporation, Plaintiff, v. William Henry BELK, Jr., a/k/a William Henry Belk, Defendant. Bankruptcy No. 82-00354-BKC-TCB, Adv. No. 82-1014-BKC-TCB-A. United States Bankruptcy Court, S.D. Florida. November 29, 1984. *794 Robert N. Gilbert, Steel, Hector & Davis, Miami, Fla., for...
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MEMORANDUM DECISION This chapter 11 debtor has filed a five-count adversary complaint against a bank and two bank officers. All the events alleged in this complaint occurred in 1982. Defendants have answered and the matter was tried on November 8. . In Counts 1 and 2, the debtor complains that the bank mismanaged the account of a corporation, which was completely owned and dominated by the debtor,...
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ORDER ON OBJECTION TO CLAIM THIS IS a Chapter 11 reorganization case and the immediate matter under consideration is an objection to the claim of American Cyanamid Company (Cyanamid) in the amount of $111,600 filed by B.J. Thomas, Inc., (Debtor). The claim is based on an alleged breach of a demolition and salvage contract by the Debtor, which caused Cyanamid to engage a third party to com...
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OPINION This adversary proceeding was instituted by the Trustee of Art Shirt Ltd., Inc., to recover two alleged preferential payments from Manufacturers Hanover Trust Company (“defendant”). The defendant has filed a motion for summary judgment contending that it is entitled to judgment as a matter of law because the debtor was solvent on the dates of the alleged preferential transfers. See 11 U.S...
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AMENDED MEMORANDUM OPINION ON JUDGMENT DECLARING OBLIGATION TO PAY FORMER SPOUSE’S ATTORNEY FEES TO BE NON-DISCHARGEABLE AS MAINTENANCE AND SUPPORT UNDER 11 U.S.C. SECTION 523(a)(5) On October 14, 1982, the plaintiff, appearing on her own behalf, filed this complaint seeking to have the obligation owed to her by the debtor be declared nondis-chargeable under Section 523(a)(5) of the Bankruptcy ...
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MEMORANDUM The plaintiffs Complaint seeks a determination that a judgment for libel he obtained against the debtor in state court in the sum of $15,000 is nondischargeable pursuant to 11 U.S.C. § 523(a)(6). The plaintiff alleges that the debt arose out of the debtor’s willful and malicious injury. The debtor’s Answer denies that the plaintiff’s claim arose out of willful and malicious injury. A...
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ORDER This matter came before the court on the objection of Norwest Bank of Mankato, N.A., (“Norwest”) to the debtor’s claim of exemption of a state court action against Norwest and another party. The debtor’s cause of action, now pending in Blue Earth County District Court, was commenced pri- or to the filing of the debtor’s bankruptcy petition. The state court action arises from th...
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OPINION AND ORDER This matter is before the court on trustee’s objection to exemption of debtors’ *535 I.R.A. annuity plan and debtors’ memorandum in support of the exemption. The debtors contend that their individual retirement plan is exempt under O.R.C. § 2329.66(A)(6)(b) which exempts life or endowment insurance or annuities upon the life of any person pursuant to O....
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MEMORANDUM OPINION Congress in the 1984 Bankruptcy Amendments and Federal Judgeship Act by 28 U.S.C. § 1334(a) effectively stripped bankruptcy courts of any jurisdiction to hear or decide anything. All jurisdiction is placed in the District Court with “original and exclusive jurisdiction of all cases under title 11.” It would seem inappropriate to style cases “In the Bankruptcy Court.” There is i...
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OPINION AND ORDER This matter came before the Court for hearing on the Debtor’s application for approval of reaffirmation of a debt, pursuant to 11 U.S.C. § 524(c) and (d) as they apply to a case filed prior to the effective date of the 1984 Amendments to the Bankruptcy Code (October 8, 1984). At that hearing, the Debtor stated that, in addition to the debt she sought to reaffirm, she was...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration is a Complaint filed by R. Edward Cooley, the *240 Trustee representing the estate of Advanced Contractors, Inc., a Debtor currently involved in a Chapter 7 liquidation case. The complaint sets forth a claim for a voidable preference pursuant to § 547 of the Bankruptcy Code and seeks to...
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DECISION ON MOTION AND CROSS-MOTION TO CHARGE SECURED CREDITOR FOR PRESERVATION AND SALE EXPENSES A trustee in bankruptcy, who persuaded an oversecured foreclosing mortgagee that the trustee’s bankruptcy sale could be accomplished more expeditiously than through a pending state court foreclosure action, now seeks to impose upon the mortgagee the costs of the sale pursuant to 11 U.S.C. § 5...
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OPINION The issue before the bench is whether we should sustain a creditor’s objection to a disclosure statement based on the statement’s alleged deficiency in failing to classify adequately an unliquidated claim. For the reasons stated herein we will sustain the objection. The facts of this case are as follows: 1 The debtor filed a petition for relief under chapter 11 of ...
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ORDER Upon consideration of the motion to withdraw filed by counsel for the Debtors, it appears that the grounds set forth in the motion are insufficient in law to support such a motion. Those grounds are: (a) that the clients refused to accept counsel’s advice to convert their case from a Chapter 11 debtor-rehabilitation case to a Chapter 7 liquidation case and (b) that the clients “complained ab...
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MEMORANDUM DECISION RE: DISQUALIFICATION OF HODDICK, RE-INWALD, O’CONNOR & MARRACK The issue before this Court is whether the firm of Hoddick, Reinwald, O’Connor & Marrack, hereafter “Hoddick firm”, should be disqualified from representing Anthony Greco, hereafter “Greco”, in the subject proceeding because of an alleged conflict of interest. A hearing was held on September 24, 1984 at which time ...
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ENTRY ON MOTION FOR AVOIDANCE OF LIEN Come now the debtors, by counsel, and file their Motion for Avoidance of Lien of Associates Financial Services Company of Indiana, Inc. (“Associates”). Associates re *17 sponded by filing an objection to the motion. The parties have stipulated to the facts of this case and the Court accepts those facts. In effect, Associates argues that the case of In ...
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*28 OPINION Before the Court is a “Motion for Entry of Consent Order” and a proposed consent order to direct the trustee to abandon property, in this situation a mobile home. The motion for consent order and consent order have been filed by the First Carolina Financial Corporation, an alleged secured creditor of the debtor, allegedly holding a valid and perfected first priority s...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT AWARDING PROCEEDS OF CROPS TO THE TRUSTEE IN BANKRUPTCY The parties filed a “joint motion for order ascertaining entitlement to proceeds” on May 18, 1984. In the same joint motion, the parties stipulated the facts which they deem to be essential to resolution of the controversy which they seek to have resolved by the court. The stip...
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MEMORANDUM OPINION AND ORDER This case has been remanded to the Bankruptcy Court by Order of the United States Court of Appeals for the Eighth Circuit, entered July 5, 1984. In re Hulm, 738 F.2d 323 (8th Cir.1984). The appellate court directed remand for an evidentiary hearing to determine whether the sale price at the foreclosure sale provided a reasonably equivalent value in exchange for th...
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OPINION AND ORDER This matter came on to be heard upon the trustee’s objection to the claim of the Debtor, James Phillips, Jr., to certain severance pay provided by his employer and upon the debtor’s memorandum in opposition thereto. Debtor contends that his severance pay, in the gross amount of $7,776.00 at the time the petition was filed, is exempt under O.R.C. § 2329.66(A)(12)(d) ...
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*938 OPINION The predominant issue in the controversy at bench is whether we should sustain the trustee’s objection to a creditor’s proof of claim when that claim was filed more than six months after conversion of the case from chapter 11 to chapter 7. For the reasons stated below we will sustain the objection. The facts of this case are as follows: 1 The debtor filed a petition for reorg...
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MEMORANDUM The plaintiff filed a complaint against the debtor, John Phillip Ryans, alleging that he owes the plaintiff a debt that cannot be discharged in bankruptcy. The plaintiff relies primarily on Bankruptcy Code § 523(a)(2)(A) which provides: (a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt— (2) for obtaining money, pro...
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44 B.R. 516 (1984) In re Hubert L. MORGAN, Debtor. Bankruptcy No. 83-01384. United States Bankruptcy Court, N.D. Alabama. November 21, 1984. Thomas J. Knight, Anniston, Ala., for debtor. Dwight Rice, Phillips & Rice, Anniston, Ala., for creditor. ORDER DENYING RELIEF FROM STAY L. CHANDLER WATSON, Jr., Bankruptcy Judge. At a hearing in the above-styled case upon a creditor's motion for relief fro...
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MEMORANDUM AND ORDER Merchants Bank & Trust Co. (MBT) brings this motion in two counts. First, for relief from the automatic stay under Code § 362(a) in order to commence foreclosure proceedings against property of Galaxy Associates (Galaxy), a debtor under Chapter 11, and second, to participate “parri passu” with the first mortgagee, Citytrust Company (Citytrust). The parties have agreed...
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MEMORANDUM AND ORDER RE: PROCEEDING TO DETERMINE PRIORITY STATUS OF “ERISA” WITHDRAWAL LIABILITY CLAIM I. Issue This ruling deals with an objection by Cott Corporation (Cott), the debtor in this chapter 11 case, to a proof of claim filed by the New England Teamsters and Trucking Industry Pension Fund (Fund). By agreement of the parties, the sole issue for resolution at this ...
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ORDER FOR PARTIAL REFUND OF FEE PAID TO DEBTOR’S ATTORNEY The debtor’s attorney has recently withdrawn as the debtor’s counsel. An unsecured creditor, Atari, has moved for review under 11 U.S.C. § 329 of the attorney’s fee paid to the debtor’s attorney. The matter was heard on November 19. Although Fensterheim & Fensterheim were employed initially in July, 1983 when they received a retain...
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MEMORANDUM DECISION The plaintiff bankruptcy trustee seeks avoidance under 11 U.S.C. § 548(a)(2)(A) and (B)(ii) of the transfer of $250,000 on October 2, 1981 from the debtor to the defendant. The defendant moved for dismissal (C.P. No. 7) of the second count of the trustee’s amended complaint (C.P. No. 4) and also answered (C.P. No. 6a). The motion was deferred to trial (C.P. No. 8) and the ma...
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44 B.R. 225 (1984) In re Elvin Earl HARGIS, Debtor. SECRETARY of LABOR, Plaintiff, v. Elvin Earl HARGIS, Defendant. Bankruptcy No. 1-82-00495, Adv. No. 1-83-0024. United States Bankruptcy Court, W.D. Kentucky. November 21, 1984. *226 David W. Anderson, Cole, Harned & Broderick, Bowling Green, Ky., for defendant. Frank Steiner, U.S. Dept. of Labor, Nashville, Tenn., for plaintiff. Henry Dickin...
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MEMORANDUM AND ORDER ABANDONING A CLASS “C” LIQUOR LICENSE This matter comes before the Court on the Trustee’s Application to Abandon or Sell Equipment and a Class “C” Liquor License. The Court is asked to determine whether the trustee has a priority interest in a Class “C” liquor license over secured creditors. Great Lakes Recreation Company is the owner of Thunderbird Lanes, a bowl...
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DECISION & ORDER Debtor, Robert H. Jacobs, has moved this court for an order pursuant to § 1307(b) of the Bankruptcy Reform Act of *973 1978, as amended (“Code”), dismissing his Chapter 18 petition. BACKGROUND Debtor filed the instant petition and accompanying Chapter 13 Statement on March 22, 1984. The debtor certified the truthfulness of the information...
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DECISION AND ORDER ON OBJECTION TO CONFIRMATION In this somewhat typical “real estate chapter 11 proceeding” the pre-petition tensions between mortgagor and mortgagee continue unabated from date of filing through date of confirmation. The debtor having successfully interdicted an all but ultimated foreclosure proceeding now seeks, through the felicitous provisions of title 11 U.S.C. and externa...
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OPINION The plaintiff, Mart i.l.v.e.s. Goldrich, is seeking monetary damages and injunctive relief against the several defendants because he was, and is, being denied guaranteed student loans by reason of the fact that he defaulted on an earlier student loan. That loan was one of the debts of which Goldrich was discharged in bankruptcy in April 1981. The defendants are the New York State ...
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MEMORANDUM Background For a number of years Harold M. Lasa-ter, Sr., operated several grocery stores in the Chattanooga area. Upon his death his wife became the Executrix of his estate. She sold three grocery stores to H.W. Smith, Ernest Whitfield and Alfred He-watt. The debtor corporation, Bubba’s of Tennessee, Inc., was formed to own and operate the grocery stores. The new business was not succ...
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MEMORANDUM AND ORDER The plan of reorganization under Chapter 11 of Title 11, United States Code, was *10 confirmed by order entered December 12, 1983. Ten months later on October 9,1984, General Motors Acceptance Corporation (“GMAC”) filed motion to lift the automatic stay to permit it to foreclose its claimed certificate of title lien against a 1980 GMC Dump Truck. The GMAC...
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MEMORANDUM AND ORDER This Memorandum treats the right of joint debtors to separate the cash value of a life insurance policy into unequal portions and to claim exemption in all of that cash surrender value under different exemption systems. The debtors filed joint petition for order for relief under Chapter 7 of Title 11, United States Code on June 27, 1984. The petition was filed prior to the eff...
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MEMORANDUM AND ORDER The matter is before the Court on the complaint of the debtors (Nutting) against the Bradford National Bank (Bank) to avoid a preferential transfer and for damages, and the Bank’s objection to certain exemptions claimed by the Nuttings. FACTS The Nuttings, formerly owner-operators of a food store known as the “Town Market” in Bradford, Vermont, filed a petit...
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MEMORANDUM AND ORDER On August 5, 1983, Vermont Fiberglass, Inc. (Fiberglass), a Vermont Corporation whose principal business is the manufacture of swimming pools and spa equipment, filed a petition under chapter 11 of the Bankruptcy Code (Code) in order to rehabilitate as an ongoing business. The case was converted to a chapter 7 liquidation on March 8, 1984, 38 B.R. 151 (Bankr.). April ...
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MEMORANDUM AND ORDER The Court has for determination the Motion of Frank B. Vener for Relief from Automatic Stay and for Recovery from the debtor of a Texas Paterson Colt revolver, Serial No. 157. This Motion was filed on July 30, 1984 and was Amended on September 17, 1984. BACKGROUND STN Enterprises, Inc. is a corporation which was organized on August 6, 1982. It has been engaged in the pu...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW The above-styled case was commenced by a voluntary petition under Chapter 11, Title 11, United States Code, filed in the predecessor court, on January 24,1983, and is still pending under said chapter, in the present court. On November 8, 1983, First Alabama Leasing, Inc. (hereinafter referred to as Leasing), and First Alabama Bank of Montgomery, N...
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MEMORANDUM OPINION AND ORDER This controversy arises from a public sale conducted by the Trustee pursuant to the Order of this Court dated April 3, 1984. The subjects of the sale were two parcels of real estate belonging to the Debtor, Thomas Rountree. One parcel of real estate, denominated at the sale as Parcel # 1, consisted of five acres of land upon which is situated a house. Parcel # 1 was e...
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*413 ORDER This matter is before the Court upon the motion of North Duke Mall Limited Partnership (“North Duke”), Debtor, to reopen bankruptcy proceedings which had been closed by order of this Court dated September 21, 1981. North Duke had filed a petition seeking relief under Chapter XII of the Bankruptcy Act on January 3, 1979. At the time of its filing, the partnership was co...
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MEMORANDUM OPINION CAME ON for consideration the motion to dismiss or, in the alternative, to convert to a case under Chapter 7, filed in the *492above referenced proceeding by Fred’s Finance Company, Inc., hereinafter referred to as Fred’s Finance Company and/or Mov-ant; as well as, the motion for authorization to sell property free and clear of lien, and for authorization to use cash collateral...
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MEMORANDUM OPINION AND ORDER The Plaintiff, Norwest Bank-Jamestown, commenced the present adversary proceeding by Complaint filed with the Court on December 29, 1983. Norwest Bank seeks through its Complaint a turnover of funds now held by the Trustee and generally requests that the Court determine that its interest in those proceeds are superior to those claims of the various Defendants....
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MEMORANDUM TURNOVER DENIED Donald J. Weiser and Kathy R. Weiser owned a 1983 pick-up truck which was encumbered by a purchase money security interest in favor of Pennsylvania National Bank (defendant). The defendant through self-help repossessed the Toyota on May 17, 1984 and on that same day sent to plaintiffs a letter notifying them of their right to redemption. That notice requirement is f...
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Memorandum Decision and Order Re Appointment of Counsel FACTS The facts are undisputed. Debtor, Management Data Services, Inc., filed its petition under Chapter 7 of the Bankruptcy Code. The trustee was appointed from a panel of trustees selected by the Director of Administrative Office of the United States Courts without consultation with any bankruptcy judge pursuant to 28 U.S.C. §...
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FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER FOR AN EVI-DENTIARY HEARING REGARDING DISCHARGEABILITY Plaintiff Larry Aslakson, by Adler and La Fave, having filed a Complaint to Determine Dischargeability of Debt; and Defendant Randall E. Anderson, by Remington Law Offices, having filed an Answer; and a pre-trial conference having been held; and the Plaintiff appearing by Attorney Eugene J...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This is a Chapter 7 case and the matter under consideration is the dischargeability, vel non, of a debt allegedly owed to Barbara Basile, the Plaintiff in the above-styled adversary proceeding. On June 8, 1984, Mrs. Basile, the former wife of the Debtor, filed a Complaint seeking to except a debt representing a Final Judgment of Dissolution of Marriage...
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MEMORANDUM DECISION The trustee seeks avoidance of a transfer of $69,762 alleged to be fraudulent under 11 U.S.C. § 544(b) and prays for recovery of the proceeds from the debtor’s bank account. The non-deb tor/wife is joined as a defendant solely with respect to any interest she may assert to the account in question. She has asserted none. The debtor has moved for dismissal and has answered. The ...
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ORDER This proceeding is before the Court on the trustee’s application to sell all of the assets of the debtor. An objection to the sale was made by certain equity security holders of the debtor corporation. The same equity security holders seek alternative relief, should the sale be approved, of allowance as an administrative expense sums they invested in stock of the debtor post-petitio...
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MEMORANDUM OPINION The question of what constitutes an actual or constructive proof of claim, when viewed within the broad scope of federal bankruptcy law and the practicalities of insolvency, would seem to be an issue of only micronic dimension. Yet upon such a question turns, in this case, an actual cash value of over $60,000 in distributions to be made under a Chapter 11 reorganization...
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The above-entitled matter came on for hearing on October 31, 1984, on the motion of the Debtor for termination of milk check assignments payable to certain creditors and for use of cash collateral pursuant to 11 U.S.C. § 363. For the reasons outlined below, I am terminating certain of the milk check assignments and allowing limited use of cash collateral. FACTS 1. Debtor is a farmer who fil...
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OPINION This matter is before the Court on the motion for summary judgment filed by Plaintiff, International Harvester Credit Corporation, hereinafter referred to as IHCC; no response having been filed by the Debtors, Leon and Bonnie Todd. IHCC’s complaint to determine discharge-ability includes four separate counts. In the instant motion, IHCC seeks summary judgment as to Count I, which ...
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FINDING AS TO RELIEF FROM STAY Petitions for relief under Chapter 11 of the Bankruptcy Code were filed on June 29, 1984 on behalf of the following related corporations: Integrated Petroleum Co., Inc.; Integrated Services, Inc.; and Integrated Energy Programs, Inc. The president of each of these corporations is L. Peter Olcese, a.k.a. Robert L. Price. He also filed a petition under Chapter 11 of...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion of the Trustee for Authority to Make a First Partial Distribution and the Objection of J. Robert Jesionowski to that Motion. The Court has considered the evidence in this matter and has reviewed both the arguments of counsel and the entire record relevant to this issue. Based upon that review and for the follow...
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MEMORANDUM OPINION In this Chapter 7 case, the mortgagee of the debtors’ resident real property, New Home Federal Savings and Loan Association (“mortgagee”), has filed, pursuant to section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), a motion for relief from the automatic stay as to the debtors’ real property. 1 We interpret the mortgagee’s motion as seeking relief from the automatic st...
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ORDER DENYING VIRGINIA ENTZ’S MOTION TO RESTRICT AND ENJOIN DEBTOR FROM EXERCISING STOCK VOTING RIGHTS The assets of this bankruptcy estate include stock in a closely held corporation. The debtor’s spouse, Virginia Entz, has filed a motion to enjoin the debtor in pos *484 session from exercising the voting rights in that stock without her consent. She asserts that the stock is community prope...
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ORDER This matter came on for hearing before the undersigned Judge on November 2, 1984 on the motion of the debtors for an order approving their claimed homestead exemption under 11 U.S.C. § 522(b) and M.S.A. § 510.01. The trustee objects to the exemption of a portion of the homestead, specifically the amount of the exemption gained by payments on the mortgages on the premises in the amou...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint to Determine Dischargeability. The parties have agreed that the issues addressed by this Complaint are primarily issues of law which may be decided by the Court based upon the submission of written arguments. Each of the parties have filed such arguments and has had the opportunity to respond to the contentions ma...
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DECISION AND ORDER DENYING MOTION FOR RELIEF FROM STAY Heard on the motion of Comet Dye Works, Inc. for relief from the automatic *761 stay, and for leave to reclaim certain manufacturing equipment from the debtor, La-belle Industries, Inc. Two objecting creditors, Eckart & Finard and CLRM Company, and the trustee argue that four equipment leases between Labelle and Comet are...
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OPINION Before this Court is the defendant Creditor’s motion to reconsider this Court’s August 3, 1983 judgment. On July 19, 1983 the defendant creditor had filed a cross-motion for summary judgment which the Court did not have before it at the time it entered its August 3,1983 judgment. Subsequent to the motion for reconsideration the plaintiff debtor filed a motion for contempt to which the c...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION TO LIFT STAY Creditors H.K. and Alberta K.A. Loui, (“Movants”) filed the instant Motion to Grant Relief from Automatic Stay filed on September 13,1984. Memoranda in opposition to the motion were filed on October 9, 1984, by Kulaulani, Ltd., (“Kulaulani”), Lillian Hagopian Corey (“Debtor”) and, by Florence Ellis. The preliminary hearing was held...
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MEMORANDUM ON FRAUDULENT TRANSFER Trial was held on this matter on October 3, 1984. Each party was provided, and took advantage of, the opportunity to provide the Court with post-trial and reply briefs. Accordingly, I make the following findings of facts and rulings of law. On January 19, 1979, the debtor, Fashion World, Inc., entered into a lease with the defendants for a store loca...
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ORDER This matter came before the Court September 28, 1984, on motion of Debtors/Defendants to dismiss the case for failure to state a claim for which relief can be granted. Based on the file, records, briefs *204 and arguments of counsel, the Court makes the following Order pursuant to the Rules of Bankruptcy Procedure. I. The Defendants are farmers living in Windom, Minnesota. They file...
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MEMORANDUM OPINION The Chapter 11 debtor has filed a motion to stay one of the debtor’s creditors from proceeding with a state court civil action against Stanley A. Kaplan (“Kaplan”), one of the debtor’s principals. 1 The state court action was brought by the creditor, J.H. Beers, Inc. (“Beers”), prior to the debtor’s bankruptcy filing and was brought against both the debtor an...
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OPINION The predominant issue in the case before us is whether we should grant the defendants’ motion for partial summary judgment on the trustee’s complaint based on the defendants’ assertion that the trustee is not the proper party to institute suit on causes of action that arose after the filing of the petition. For the reasons stated herein we conclude that the trustee is the proper p...
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MEMORANDUM AND ORDER The Motion of the defendants for the allowance of attorney’s fees and costs, filed on October 18, 1984, came on for hearing, after notice. They seek attorney’s fees as the result of the dismissal of a complaint instituted by the trustee, Joseph C. Palmisano, Esquire, Objecting to the Discharge of the debtors. This Complaint was predicated on Section 727 of the Bankruptcy Co...
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OPINION The same fundamental issue is before the Court in each of the above adversary proceedings: whether wages earned by the debtor within ninety days of the bankruptcy filing can be avoided as a preferential transfer. In each case creditor GMAC contends that the issue is governed by a recent Eleventh Circuit decision, Askin Marine Company v. Conner (In re Conner), 733 F.2d 1560 (CA 11, 1984). T...
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ORDER The above cases came before the Court on Motion by the Trustee to employ the Trustee’s law firm as attorney in said Bankruptcies “to act as attorneys for the Trustee in all matters pertaining to legal services which must be rendered for the Trustee and general creditors of the estate. Compensation to be paid for these legal services should be reserved for further orders of the Court.” T...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ALLOWING CLAIMANT’S CLAIM IN THE SUM OF $210.68 AS A SEPARATELY CLASSIFIED CLAIM TO BE PAID 100% Claimant seeks allowance of a claim based upon purchases made from it by the *47 debtors shortly before bankruptcy under circumstances which he contends evidence a lack of intention of the debtors to pay for the purchases. The debtor...
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DECISION AND ORDER DIRECTING RECOVERY OF PREFERENTIAL TRANSFERS On August 10, 1981, an involuntary petition under Chapter 7 of the Bankruptcy Code (the Code) was filed against Candor Diamond Corp. (Candor), and an order for relief was entered. On April 29, 1982, Daniel McColley, the trustee of Candor, commenced the above-captioned adversary proceeding against Matmon Gem Co. (Matmon),...
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MEMORANDUM AND ORDER This matter is before the Court on an Application for administrative expense filed by John Deere Company on February 21, 1984. John Deere, by its Application, seeks treatment as a superpriority administrative expense claimant under section 503(b) and section 507(b) of the Code. The Debtors and the Unsecured Creditors Committee object to the Application. Hearing on the...
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FINDING AS TO REJECTION OF CONTRACTS This matter is before the court on the application of the debtor and debtor-in-possession, Pesce Baking Company, Inc., (“debtor”) to reject, pursuant to 11 U.S.C. section 365(a), three executory contracts. The executory contracts sought to be rejected are collective bargaining agreements subject to the National Labor Relations Act (NLRA), 29 U.S.C. sec...
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OPINION AND ORDER This matter is before the court upon the motion of the plaintiff, The Toledo Area Construction Workers Health and Welfare Plan [hereinafter “T.A.C.W.” and “Plan”], for summary judgment against the defendant Richard C. Hayden (Debtor), to find debts arising from the nonpayment of fringe benefits to the Plan, nondischargeable under § 523(a)(4) of the Bankruptcy Code and upon the...
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OPINION The issue presented to us is whether a vehicle is property of the estate, subject to turnover to the trustee. For the reasons expressed below, we will grant the relief requested in the trustee’s complaint for turnover. The facts of this ease are as follows:1 In 1980, John E. Potter (“the defendant”) bought a truck (“the vehicle”) for use in his landscaping business, a sole proprietorship....
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER OF DISMISSAL Production Credit Association of River Falls (PCA), by Attorney Peter F. Herrell, having filed a Motion to Dismiss; and a hearing having been held; and PCA appearing by counsel; and Debtor Darrell J. Van Brunt appearing by Attorney Mart W. Swenson; and briefs having been submitted; the Court, being fully advised in the premises, FINDS ...
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MEMORANDUM OPINION AND ORDER Michael F. Curtin (“Receiver”) the Receiver appointed by the United States District Court for the District of Columbia in the case of Lyman v. Spain, et al., CA 78-0847, filed a motion in Ofty Corporation’s Chapter 11 proceeding seeking (1) dismissal of the petition or (2) transfer of venue or (3) appointment of a trustee. Josiah Lyman, Committee of Mildred 0....
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FINDINGS OF FACT, CONCLUSIONS OF LAW, MEMORANDUM OPINION AND ORDER OF DISMISSAL THIS CAUSE came on to be heard on November 6, 1984, upon the Motion to Dismiss filed by the Federal Deposit Insurance Corporation, in its corporate capacity (“FDIC”) alleging that the Chapter 11 proceeding commenced by the debtor, American Property Corporation (“APC”) was not commenced in good faith and in accordanc...
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MEMORANDUM OPINION AND ORDER In this case debtor owns, inter alia, a restaurant and motel in El Dorado Springs, Missouri. He purchased the property on October 26, 1983, from Charles W. Borch-ers and Sandra Faye Borchers, husband and wife. Debtor took title subject to four recorded Deeds of Trust. The face amount of the note secured by those Deeds of Trust is approximately $682,000 but the...
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DECISION AND ORDER Presently before the Court is complaint of the Trustee in Bankruptcy seeking to recover as voidable preferences two transfers to defendant Sohigro Service Company, Inc. The Court heard this matter on August 3, 1984. The following is based on the evidence adduced, on a joint stipulation of facts, and on the pleadings. Debtor, Evans Potato Company, Inc. (hereinafter ...
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MEMORANDUM OF DECISION AND ORDER This cause came on for hearing on the application of the Debtor-In-Possession, pursuant to 11 U.S.C. § 1113(e) for Interim Relief from the provisions of its collective bargaining agreement with the Air Line Pilots Association, International. The Court having considered the motion and the evidence presented, as well as the Memorandum of Law submitted by the Air L...
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*742 MEMORANDUM An application for attorney’s fees was filed in this Chapter 7 case by Margaret Behm, attorney for the debtors. The trustee objected to the application claiming that much of the work performed by debtors’ counsel involved litigation against the estate or defense of the debtor individually and was not compensable from the estate. Subsequently, the applicant revised the fee appl...
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MEMORANDUM At issue is whether the assets of the debtor’s pension plan, established and funded by a partnership of which debtor was a partner, are either excluded from the debt- or’s estate under 11 U.S.C.A. § 541(c)(2) (1979) or, alternatively, exempted from the debtor’s estate under Tenn.Code Ann. § 26-2-111(1) (1980). *74 I Involuntary chapter 7 proceedings were comm...
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MEMORANDUM In this adversary proceeding, the plaintiff, Commerce Union Bank of Sumner County, sought a determination that two debts owed by the debtor were non-dis-chargeable pursuant to 11 U.S.C. § 523(a)(2) and (6) (West 1979). Of the two debts challenged, one concerned a business loan for the purchase of an International Harvester dozier and the other concerned a debt secured by the debtor’s p...
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MEMORANDUM OPINION On October 1, 1984, came on for consideration in the above styled and numbered cause, the Application of Harrill Electrical, Inc. to Modify Automatic Stay and the Complaint of Bowen Industries, the Debt- or, to Compel Turnover of Money. The Court, having heard the arguments of the parties and having considered the briefs in support of the parties’ respective positions, ...
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MEMORANDUM OPINION This matter arises pursuant to the filing of a motion for default by the Trustee in Bankruptcy (“Trustee”) against the defendant, Design Print, Inc. (“defendant”). Trustee’s motion is made in accordance with Rule 7055 of the Rules of Bankruptcy Procedure which incorporates Rule 55 of the Federal Rules of Civil Procedure. See R.Bankr.P. 7055; Fed.R.Civ.P. 55. In this instance, de...
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This suit was filed pursuant to 11 U.S.C. § 523(a)(6) to determine the dischargeability of a State Circuit Court judgment for punitive damages resulting from a housing discrimination case. The plaintiff, relying almost exclusively upon the jury’s special verdict, is now asking this court to enter summary judgment. Therefore, the narrow question to be decided is whether the jury determined that ...
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MEMORANDUM AND ORDER I. This matter came before the court for trial of the plaintiff’s (“Morsovillo”) complaint to determine the dischargeability of a certain debt pursuant to section 523(a)(2) and (6) of the Bankruptcy Code. Morsovil-lo seeks a finding by this court that the debtors (“the Krauses”) obtained an extension of credit through fraudulent misrepresentation or, alternativel...
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MEMORANDUM AND ORDER This matter came before the court on the amended motion of Wallace A. Erickson to dismiss the Chapter 11 proceeding. Erickson contends that the Chapter 11 petition was filed on behalf of the debtor corporation by a party who lacked authority to do so. Upon that basis, Erickson has moved for dismissal. The issue presented to the court is whether this Chapter 11 ca...
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*17ORDER GRANTING DEBTORS LEAVE TO INCUR CREDIT IN THE SUM OF $100,000.00 AND TO GRANT LENDER A RIGHT TO PAYMENT AS A PRIORITY ADMINISTRATIVE EXPENSE IN ACCORDANCE WITH THE TERMS OF A CONFIRMED PLAN OF REORGANIZATION OR OTHERWISE, IN THE EVENT OF CONVERSION OR DISMISSAL OF THESE PROCEEDINGS, IN ACCORDANCE WITH LAW AND DIRECTING APPLICATION OF PROCEEDS OF LOAN TO SECURED CREDITORS IN ACCORDANCE WIT...
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MEMORANDUM OPINION This matter came before the court upon the filing by the debtor of a complaint to recover funds garnished by the defendant/creditor. On August 7, 1984, the court conducted a pretrial conference at which the debtor’s attorney, Robert J. Altman, and the creditor’s attorney, Mark Gordon, appeared. At that conference, the parties agreed that the facts in this case were not disput...
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MEMORANDUM AND ORDER DISTRIBUTING PROCEEDS OF SALE BETWEEN CONFLICTING SECURITY INTERESTS The Trustee in Bankruptcy sold business equipment and assets of the debtor at public sale for $95,000 and the $9,965 proceeds thereof derived from an International Harvester crawler dozer are in dispute between International Harvester Credit Corporation (International) and Credit Alliance Corporation (Allianc...
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MEMORANDUM The first question in this case is whether a lease between the debtor, Celeryvale Transport, and the defendant, Trailmobile, is a true lease or a lease intended for security. Trailmobile leased to Celeryvale 30 refrigerated trailers of the kind used with an over-the-road tractor to form a tractor-trailer or semi-trailer rig, commonly called a big truck. Celeryvale later went in...
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MEMORANDUM OPINION AND ORDER On this date came on to be considered in the above styled and numbered cause, the Motion of the United States to Modify Automatic Stay and the Intervention In Motion to Modify Automatic Stay filed by Texas Bank and Trust of Temple, Texas. The Court, having reviewed the pleadings in this cause and examined the evidence, and having heard the arguments of and aut...
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MEMORANDUM AND ORDER The debtors, North Atlantic Airlines, Inc. and Air Vermont, Inc. (Air Vermont), filed separate petitions for relief under chapter 11 of the Bankruptcy Code (Code) on January 30 and 31, 1984, respectively. The cases were subsequently consolidated, as all physical assets of the two corporations are owned by Air Vermont. The instant matter is before the court on the moti...
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MEMORANDUM AND ORDER ON MOTION OF DEFENDANT FOR SUMMARY JUDGMENT In this adversary proceeding, the Court has for determination the Motion of Beech Acceptance Corporation filed October 9, 1984, for Summary Judgment on Count II of the Amended Complaint of the Debtors against Beech Acceptance Corporation, Inc., and Beech Aircraft Corporation, which Count II reads as follows: “Debtor con...
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MEMORANDUM OPINION This matter arises out of debtor’s complaint to avoid a preferential transfer of $4,750.00 filed March 15, 1983. Pursuant to the Court’s direction, the parties filed memoranda of law and accompanying stipulations. The facts are not in dispute. Bob Gris-sett Golf Shoppes, Inc., debtor herein, was a retailer of golfing equipment and supplies. Confidence Golf Co. (“de...
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The question before the court is whether a nondischargeable debt exists between two former business associates, Warren Tetzlaff (Tetzlaff), the debtor and defendant in this case, and Gordon Paro (Paro), the plaintiff. Throughout the course of these proceedings, Paro has asserted two theories on which he bases his claim for nondischargeability. In count I of the complaint, Paro alleges that Tetzlaf...
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DECISION Waukesha State Bank (“Bank”) seeks a judgment against John Albert Sindic (“debtor”) declaring the sum of $17,286 to be a nondischargeable debt based upon §§ 523(a)(2)(A) and 523(a)(6) of the Bankruptcy Code. 1 The trial was held on July 12, 1984. The only testimony presented was that of the Bank. The debtor did not appear in person but was represented by his attorney. ...
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DECISION The sole issue is whether an agreement entitled “LPL Equipment Lease” is a true lease or a disguised security agreement. 1 On March 3, 1981, the agreement, purporting to be a lease of a fork lift and a back hoe was entered into between Service Motor Company as lessor and Larry Noaek, *174 d/b/a Taylor Rental Center (“debtor”) as lessee. It was for 60 mon...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard on the Application of Debtor LEAVITT STRUCTURAL TUBING CO. [LSTC] For Authority To Approve Classification of Claims Or Interests In The Leavitt Structural Tubing Co. First Amended Plan of Reorganization [the Application]; and the Court, having considered the Application filed by LSTC, represented by SCHWARTZ, COOPER, KOLB & GAY...
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ORDER DISMISSING CHAPTER 11 PROCEEDINGS WITHOUT PREJUDICE AND SUBJECT TO REINSTATEMENT ON RETENTION OF LOCAL COUNSEL AND DEMONSTRATION OF OTHER FACTS, AWARDING ATTORNEYS FOR DEBTORS $2359 IN ATTORNEYS’ FEES AND $865 REIMBURSEMENT OF EXPENSES, AND DIRECTING RETURN OF REMAINDER OF RETAINER FEE The within chapter 11 proceedings were filed on February 16, 1984. The debtors *710 f...
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OPINION Funds representing rental proceeds from the lease of a Boeing Model 727-023 aircraft have been paid into the Court pursuant to an interpleader motion. Both the Trustee of American International Airways, Inc. (“AIA”), and the owner of the aircraft claim they are entitled to receive the funds. For the reasons stated herein, we find that the interpleader funds are subject to a constr...
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OPINION The issue at bench is whether to allow the claim of a former employee of the debtor for medical expenses over the debt- or’s objection. The debtor objects to the claim on the grounds that the employee was not covered by the corporation’s group employee health insurance plan at the time the expenses were incurred, and furthermore, that the majority of the claim was satisfied by another i...
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MEMORANDUM OPINION CAME ON for consideration the motion to lift the automatic stay filed by InterFirst Bank — Houston, N.A., hereinafter referred to as InterFirst, in the above captioned cases which have been consolidated for administration; responses filed by the Debtors, Woodbranch Energy Plaza One, Ltd., and Woodbranch Energy Plaza Six, Ltd.; response filed by secured creditor, West-gr...
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The plaintiffs/debtors, Lawrence J. Brodd and his wife, Jane L. Brodd (Brodds), filed their complaint against Searle Medical Products U.S.A., Inc. (Searle) on November 1,1982, claiming that Searle is liable for rent, unpaid fire insurance premiums and property taxes on their commercial building at 2959 N. 112th St., Wauwatosa, Wisconsin, for the period November 1, 1981, to August 31, 1982. The Bro...
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ORDER GRANTING MOTION TO VACATE ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT The Court having considered the Motion to Vacate Order Denying Motion for Partial Summary Judgment (the “Motion”) of the Joint Board of Trustees of the Western Conference of Teamsters Pension Trust (the “Board”), and good cause appearing, IT IS HEREBY ORDERED that the Memorandum of Decision and Order entered August 2...
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MEMORANDUM DECISION The plaintiff/chapter 11 debtor is suing a Florida municipality, alleging that the town’s enactment of a zoning ordinance constituted a violation of the stay imposed by 11 U.S.C. § 362(a) and, therefore, that the ordinance is a nullity. In addition and alternatively, the debtor alleges that the ordinance is invalid as an arbitrary, unreasonable exercise of the town’s legisla...
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MEMORANDUM DECISION Plaintiff seeks a determination that its judgment claim against the debtor is excepted from discharge under 11 U.S.C. § 523(a)(6). The debtor appeared and answered at the commencement of the trial held on October 30. The answer is a general denial of all allegations. The complaint alleges and the plaintiff has proved that it holds a judgment entered by the state court on A...
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MEMORANDUM OPINION Stress — that modern malaise blamed for all manner of social evil and so pervasive as to have become almost fashionable — is claimed by its victim in this case to create an “undue hardship” justifying the forgiveness of a student loan. This action was initiated by the debtor, Linda Moorman, against the Commonwealth of Kentucky Higher Education Assistance Authority, to obtai...
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MEMORANDUM OPINION The question presented by this case is whether to reopen a bankruptcy case, closed for almost a year, to allow a creditor who had early notice of the proceeding to now contest the dischargeability of his debt. The case carries with it implications for an attempted criminal prosecution of the debtor. We conclude that the case should not be reopened. The debtor Arthur McQueary rec...
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MEMORANDUM OPINION This well-aged adversary proceeding presents the court with a number of complex issues of state and federal law in the context of a simple lien priority dispute. Before venturing into the thicket of legal questions, however, we will review the stipulated facts of the controversy. At all times relevant to this dispute, the plaintiff, Allis-Chalmers (AC), had a “floo...
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MEMORANDUM AND ORDER A complaint objecting to the discharge of the debtor was filed by the Chapter 7 Trustee and Siderius, Inc., an unsecured creditor of the debtor. 1 The debtor filed a motion for a more definite statement and a motion to strike certain allegations pursuant to Fed.R.Civ.P. 12(e) and (f). The complaint contains six counts which restate a number of the general grounds for de...
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DECISION ON MOTION SEEKING RELIEF FROM RULE 2004 ORDER On May 31, 1983, Arkin-Medo, Inc. (debt- or) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1982). The debtor *139 continued to operate its business as debtor-in-possession. On June 8, 1983, the United States Trustee appointed a committee of unsecured creditors (Comm...
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MEMORANDUM AND ORDER The Plaintiffs, Management Jets International, Inc. (MANAGEMENT JETS) and C.I.T. Corporation (CIT), commenced the instant action predicated upon section 523(a)(2)(B) of the Bankruptcy Code. By their Complaint, it is alleged that there were material misrepresentations and omissions in a financial statement given to them by the Debtor, Freddie Mutschler (MUT-SCHLER), an...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS (1) DENYING MOTION TO VACATE (2) EXTENDING TIME TO ACCEPT OR REJECT (3) DENYING MOTION FOR SANCTIONS Telemark Lodge Owners Association (TLOA), by Adler & LaFave, having filed a Motion to Vacate; and Trustee Lawrence J. Kaiser, by Robins, Zelle, Larson & Kaplan, having filed a Motion for Order for Exten *624 sion and a...
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ORDER DISMISSING CHAPTER 11 PROCEEDINGS WITH PREJUDICE The within chapter 11 proceedings were filed on February 24, 1984. Since that time, some eight months have passed during which the debtors have not put before the court a plan of reorganization which could be confirmed under the standards set forth in section 1129 of the Bankruptcy Code. The delay in filing a proposed plan and disclosure st...
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44 B.R. 124 (1984) In the Matter of Dean EMPORELLI, Debtor. FORD MOTOR CREDIT COMPANY, Plaintiff, v. Dean EMPORELLI, Defendant. Bankruptcy No. 82-4024, Adv. No. 83-445. United States Bankruptcy Court, W.D. Pennsylvania. November 6, 1984. *125 Sanford M. Lampl, Pittsburgh, Pa., for debtor. Thomas R. Wright, Pittsburgh, Pa., for FMCC. MEMORANDUM OPINION GERALD K. GIBSON, Bankruptcy Judge. The matt...
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MEMORANDUM AND ORDER RE: DEBTOR’S APPLICATION FOR INTERIM COMPENSATION TO FIRM OF ROBSON, MILLER & OSSER-MAN AS SPECIAL COUNSEL NUNC PRO TUNC TO JANUARY 1, 1984 I. Three creditors filed an involuntary chapter 7 petition against Kero-Sun, Inc. (debt- or) on October 13, 1983, and the court entered an Order for Relief on December 1, 1983. The debtor converted its case to one under chapt...
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Findings of Fact, Conclusions of Law, and ORDER Denying Federal Land Bank’s Application for Relief from Automatic Stay; with Memorandum Hearing on Federal Land Bank’s Motion to Lift the Stay was held with George Keith appearing for the Movant Federal Land Bank and Dan Childers appearing for the Debtors-in-Possession. At the conclusion of the hearing the parties were ordered to submit brie...
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MEMORANDUM OPINION This case comes before the Court on Complaint filed by debtor farmers. At issue is the validity of the “full proceeds loan” agreement between West Kentucky Production Credit Association (PCA) and the debtor-farmers, testing whether such contracts by their nature, provisions and controls, compel a finding that the creditor is an “insider” within the bankruptcy definition...
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MEMORANDUM OPINION Roman Cleanser Company was a Michigan corporation engaged in the business of manufacturing, packaging and marketing a variety of items including “Roman Cleanser” and other household cleaning products. In connection with the business, the corporation employed the following federally registered trademarks: “Roman”, registration number 912,017, originally registered on Jun...
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MEMORANDUM OPINION AND ORDER William and Margaret Canon, hereinafter debtors, filed a joint petition in bankruptcy under Chapter 7 on January 17, 1983. Thereafter Richard and Dorothy Lingenfel-ter, hereinafter plaintiffs, filed a complaint contending that their debt arising out of default judgment obtained in the Circuit Court of Jackson County, Missouri, was nondischargeable. Debtors ans...
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MEMORANDUM OPINION AND ORDER Debtor seeks to exempt a house trailer and approximately ten acres of affixed land under the Missouri homestead statute. The trustee approved the exemption at the Section 341 creditor’s meeting and announced his intention to abandon the property. Pursuant to Bankruptcy Rule 4003 creditor objected to debtor’s claimed exemption. Creditor asserts debtor does not ...
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DECISION AND ORDER ON APPLICATION TO LIFT THE AUTOMATIC STAY TO PERMIT SETOFFS On December 8, 1983 Hanover Square Securities, Inc. (Hanover) was suspended by The New York Stock Exchange (NYSE) and, pursuant to a proceeding commenced by the Securities and Exchange Commission (SEC), consented to entry of a judgment prohibiting it from trading securities while in violation of the Securities and Excha...
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DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT On November 21, 1980, William Kessler, Inc., (debtor) filed a petition under Chapter 11 of the Bankruptcy Code. No trustee has been appointed, and the debtor remained in possession. In a written agreement dated September 21, 1981 and amended September 24, 1981 (Agreement), the debtor agreed to sell to Tumini Enterprises, Inc. (TEI) real prope...
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ORDER RE: LATE FILING OF PROOF OF CLAIM THIS MATTER is before the Court on the debtor’s Motion to allow the late filing of a proof of claim in debtor’s Chapter 13 *197 case. The claim the debtor seeks to file relates to a debt owed to the Larimer County Treasurer’s office in the amount of $188.01. The County Treasurer did not file a proof of claim as required under BRP 3002(a). Thus, the debt...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing upon a Motion for Summary Judgment filed by Alexander Doak Campbell, the Defendant in the above-styled adversary proceeding. The Plaintiffs, Thomas A. and Jane F. Coyle (Plaintiffs), initiated this proceeding by filing a four count Complaint against the Debtor which seeks an order denying the general discharge of the ...
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ORDER DENYING MOTIONS OF FLORIDA COAST BANK On September 26 the trustee sold certain Palm Beach County real estate, the title to which was in the debtor’s name when this bankruptcy case was commenced on September 12, 1983. Florida Coast Bank had objected to that sale. The objection was overruled. Florida Coast Bank has now moved for reconsideration of that earlier order and has moved to set asi...
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MEMORANDUM DECISION Idaho First National Bank has filed several objections to the confirmation of Gale and Ann Hildreth’s chapter 11 plan. The parties have agreed that the court may limit its consideration to creditor’s objections 5, 6, 7 and 9. In objections 5 and 6, the bank contends that, because it is ov-ersecured, 11 U.S.C. § 506 entitles it to the payment of interest under the plan ...
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MEMORANDUM AND ORDER This matter came to be heard upon the motion of a creditor herein, Michael Reese Hospital (“the Hospital”) to have its claim allowed as timely filed in this Chapter 13 matter. For reasons set forth herein, this court hereby denies the Hospital’s motion. FACTUAL BACKGROUND This matter involves the legal effect of scheduling a creditor in a Chapter 13 pro ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERS, WITH MEMORANDUM The matter before the Court is a Complaint filed by Black Hawk (County) seeking a determination, among other things, that a debt owed Projects Inc. (creditor) be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2), (4), (6), (7). The County’s interest in this matter stemmed from a prebankruptcy criminal prosecution ...
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Findings of Fact, Conclusions of Law, and ORDER Lifting Stay re Real Estate; with Memorandum On the 4th day of October, 1984, the hearing on Contested Nos. 702 and 703 was held after proper notice. Contested Nos. 702 and 703 deal with the same mortgage, note and real estate. Therefore, a consolidated hearing was held. Present at said hearing were: Alvin J. Ford, Attorney for the Debtor; and W...
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MEMORANDUM OPINION This matter comes before the Court on debtors’ motion to voluntarily dismiss their Chapter 7 petition without, prejudice on the basis: (1) a large portion to their indebtedness is being disputed as non-dischargea-ble; (2) said debt is as yet unliquidated and (3) no creditor will be prejudiced by the dismissal requested. Objection thereto has been taken by a princip...
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MEMORANDUM OPINION ON BARRETT WRECKING’S MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION AGAINST COMMENCING LITIGATION AGAINST AMERICAN DRUGGISTS’ INSURANCE COMPANY The Debtor is a general contractor. When it filed its voluntary petition for relief under Chapter 11 of the Bankruptcy Code on October 27, 1981, it had work in progress for various governmental entities in at least three states....
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MEMORANDUM OPINION As far as can be determined, this is the eighth formal opinion by the federal courts in Michigan on a question involving more state than federal concerns. The Court invites the Michigan Supreme Court to accept a certification under GCR 1963, 797 of a case containing the issues stated in Part II herein when an appropriate one comes along. 1 This case is befo...
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ORDER DENYING MOTION TO DISMISS This matter came on for hearing on the motion of defendant Norwest Bank Central, N.A. (Norwest) to dismiss this adversary proceeding. Hendrik DeJong and Linda Rusch appeared on behalf of Norwest; Thomas F. Miller appeared on behalf of the plaintiffs; Richard D. Anderson appeared on behalf of F & M Marquette National Bank; Robert Munns appeared on behalf of ...
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ORDER DENYING PETITIONER’S MOTION TO SET ASIDE ORDER OF FEBRUARY 9, 1984, CONFIRMING TRUSTEE’S SALE TO RESPONDENT This is an action in which the respondent, a purchaser of property at a sale from the trustee in bankruptcy, seeks to have the sale set aside. The motion of the petitioner, filed on August 1, 1984, requests that the court vacate and set aside its order of February 9, 1984, granting the...
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MEMORANDUM OPINION This matter came before the Court on the motion of First Interstate Bank to lift the automatic stay. The issue in the case is whether the mortgage on the residence of Mr. and Mrs. Bass, executed to First Interstate Bank, can be extended to provide security for a pre-existing business debt and a subsequent business debt by virtue of a dragnet clause and future advance cl...
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OPINION The question before us is whether we should grant a trustee’s motion for summary judgment in this proceeding against a lessor to avoid a transfer pursuant to section 547(b) of the Code. Because we conclude that there are material issues of fact regarding the existence of the necessary *725elements for a voidable preference, we will deny the motion. The facts of the case, in light of the st...
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ORDER ADR, an unsecured creditor of the debt- or, has made direct payments to creditors of the debtor in the form of direct refunds on credit life insurance policies for which the debtor was the selling agent. Petitioner claims that it is entitled to the priority afforded by 11 U.S.C. § 503(b)(3)(D) on the ground that payments which it made were administrative expenses that made a substantial c...
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MEMORANDUM OPINION This case came for hearing before this Court on April 10, 1984. The Debtor, Meinke, Peterson and Damer, P.C., sought to hold the Defendant, Blue Cross of Texas and Blue Shield of Texas, in contempt for violation of the automatic stay provisions of Section 362(a)(3) in terminating the Debt- or’s health and dental insurance policy. This Court requested that the parties su...
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MEMORANDUM OPINION On May 22, 1984, the Court held a hearing on the Motion for Hearing on Validity of Mechanic and Materialmen’s Liens of Graham Mud, Inc., Ranger Operating Company and Diablo Drilling, Inc. At the conclusion of the hearing, the Court entered its oral findings of fact and conclusions of law on the record and entered an Order on June 18,1984 summarizing its ruling. This Mem...
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MEMORANDUM DECISION This court has been asked to decide whether an April 3, 1983, farm security *103 agreement and related financing statement created a perfected security interest in the debtors’ crops in favor of Farmers Credit Company, Inc. (Farmers) or whether the security instruments were ineffective for failure to describe, in accordance with WIS. STAT. § 409.203(l)(a),...
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MEMORANDUM, OPINION, AND ORDER THIS MATTER came before the court on the following motions: 1. Motion to Dismiss or to Abate and for Stay of Proceedings filed by National Acceptance Corporation of America, Inc., (“NAC”) on October 9, 1984. 2. Motion for Continuance filed by NAC on October 11, 1984. 3. Motion to Shorten Time for Production filed by NAC on October 11, 1984. 4. Motion for P...
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MEMORANDUM OPINION AND ORDER On September 18, 1980, H. Page Melson (debtor) purchased Valley of the Swans Hotel in Lewes, Delaware from Farmers Bank of the State of Delaware and Sarah E. Dillon, co-trustees, and Mrs. Dillon individually for $255,000. Mrs. Dillon and Mellon Bank, successor to Girard Bank Delaware, which was successor to Farmers Bank, are the holders of a mortgage granted to secu...
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OPINION AUTOMATIC STAY — POLICE OR REGULATORY POWER — INJUNCTIVE RELIEF Thomas Solvent Company, a debtor-in-possession in a reorganization proceedings under Title 11 U.S.C. Chapter 11, (Thomas) filed a complaint to enjoin the State of Michigan from proceeding with a State Court Action now pending in the Calhoun County Circuit Court and from enforcing any order entered by that court w...
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MEMORANDUM ORDER GRANTING MOTION TO DISMISS This matter came before the Court for hearing September 12, 1984, on Defendant’s motion to dismiss the adversary proceeding for Plaintiff’s failure to timely file its complaint objecting to dischargeability pursuant to Rule 4007(c) of the Rules of Bankruptcy Procedure. Subsequent to the hearing, this Court on September 25, 1984, issued its opini...
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MEMORANDUM OPINION This matter came before the Court on First Interstate Bank of Lea County’s (the Bank) motion to dismiss an objection to a portion of the Bank’s secured claim raised by the trustee and KCL Sales, Inc. (KCL) an unsecured creditor. The Bank stipulated to an allegation of facts by the trustee. In 1977, New Mexico Bank and Trust Company (predecessor to the Bank) loaned ...
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MEMORANDUM AND ORDER The trustee challenged the claim of the debtor, Brent S. Roper, that he is entitled to exempt $55,365.87 held in his Teacher Retirement Account from the § 541 property of the estate. The trustee contends successively that the fund properly cannot be exempted under Texas law, that only the portion of the fund which was contributed by the State of Texas can be *5exempted, and th...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether an indentured Trustee’s commission may be fixed by a Deed of Trust without due consideration by the Court as to what fee is reasonable under the circumstances where the proposed foreclosure and sale of the property has been stayed by the filing of a Chapter 13 petition in this Court. The facts are undisputed. The Petitioner, Jeffe...
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MEMORANDUM OPINION This matter came before the Court upon the defendant’s motion to dismiss the plaintiffs’ complaint. The grounds asserted by the defendant for dismissal are that the Court lacks jurisdiction under Rules 12(b)(1) and 12(h)(3) of the Federal Rules of Civil Procedure to hear Count Five of the plaintiffs’ complaint and that the entire complaint for nondischargeability of a d...
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*82 MEMORANDUM OPINION The sensitive matter of professional compensation for trustee-attorneys in bankruptcy liquidation cases, not addressed by this court since In re Red Cross Hospital Association, Inc., 18 B.R. 593 (1982), is raised by the present petition for interim fees. . Trustee Michael J. Clare petitions for an interim legal fee of $2,115. Clare had been authorized by court order...
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The above-captioned matter came on before the undersigned United States Bankruptcy Judge on October 19, 1984, upon the Motion of General Motors Acceptance Corporation (hereinafter “Movant”), to convert this case to a proceeding for liquidation under Chapter 7. Movant appeared by its attorney, Shawn M. Dunlevy. Debtor appeared by its attorney, James J. Bang. The Unsecured Creditors Committee app...
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DECISION ON DEMAND FOR JURY TRIAL AND REQUEST FOR IMMUNITY The issues raised by the parties’ motions are whether the debtor and his wife may demand a jury trial when sued by trustees in bankruptcy to set aside certain allegedly fraudulent conveyances and preferential transfers and whether the debtor, Walter Wlodarski, may be entitled to an order granting him immunity. On October 22, ...
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OPINION The predominant issue in this case is whether employees’ holiday pay allowable under a collective bargaining agreement (which has not been assumed by a chapter 7 debtor) is entitled to priority status under 11 U.S.C. § 507(a)(1) or (a)(3) of the Bankruptcy Code (“the Code”) when the holiday falls within the postpetition period during which period the debtor’s employees had not worked. F...
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MEMORANDUM ON APPLICATIONS FOR COMPENSATION BY ATTORNEYS FOR THE TRUSTEE Two law firms representing the trustee, Cadwalader, Wickersham & Taft (Cadwa-lader) and Walker & Walker, P.C. (Walker), seek approval of interim compensation and reimbursement of expenses, 11 U.S.C.A. § 331 (1979). Notice required by Bankruptcy Rule 2002(a)(7) has been given. The Federal Deposit Insurance Corporation...
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ORDER Upon consideration of the motion to strike defendant’s counterclaim, and the opposition thereto, and the legal memoran-da submitted by the parties, it appears to the Court that defendants have filed a counterclaim previously omitted from their answer, without first obtaining leave of Court pursuant to Federal Rules of Civil Procedure 13(f) and Bankruptcy Rule 7013. However, this Court finds ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DENYING THE PLAINTIFF’S COMPLAINT FOR A DECREE OF NONDISCHARGEABILITY BUT DIRECTING DEFENDANT TO PAY PLAINTIFF THE SUM OF $154.70 FORTHWITH The plaintiff United Missouri Bank of Carthage seeks a decree of nondis-ehargeability of the amount due it from the debtor — the sum of $142,574.43 — on its assertion that the indebted...
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ORDER DENYING MOTIONS OF CITIZENS STATE BANK OF NEVADA AND COMMUNITY FEDERAL SAVINGS AND LOAN ASSOCIATION TO DISMISS CHAPTER 7 CASE; DIRECTING ADMINISTRATION TO PROCEED; AND DIRECTING DEBTORS’ COUNSEL TO SUBMIT AND SERVE DETAILED STATEMENT SUPPORTING CLAIM FOR ATTORNEY’S FEES AND LIEN AGAINST GROWING CROPS WITHIN 10 DAYS OF OCTOBER 24, 1984 After due consideration, the court has determined that th...
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MEMORANDUM OPINION AND ORDER The Plaintiffs on June 4, 1984, commenced the instant adversary action alleging a judgment entered in North Dakota State District Court to be non-dischargea-ble under section 523(a)(6) of the Bankruptcy Code. On June 28, 1982, a Judgment was entered in State District Court jointly and severally against the Defendant, Dora Hanson, and Kenneth C. Sanden in the s...
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FINDING AS TO APPLICATION FOR REMOVAL On July 12, 1984, BancOhio National Bank filed an application to remove to this bankruptcy court a civil action pending in the United States District Court for the Northern Distr 'et of Ohio. This application raises important questions of jurisdiction and procedure under the recently enacted Bankruptcy Amendments and Federal Judgeship Act of 1984, P.L...
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FINDING AS TO MOTION TO ENJOIN Marvin A. Geffken, dba Metro Area Roofing Company (“debtor”), filed a petition under Chapter 13 of the Bankruptcy Code on June 22, 1983. Prior to the filing of the Chapter 13 petition, the Industrial Commission of Ohio (“Commission”) had commenced an action against the debtor in the Common Pleas Court of Summit County Ohio, Case No. CV 84-2-0329. The Commiss...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiffs/debtors have filed a complaint which essentially seeks enforcement of a prior Order of this Court, which was based upon a stipulation among the parties.1 The debtors were the owners of two parcels of real property. Defendant American Bank and Trust Company of Pennsylvania *703(“Bank”) held a first judgment lien against one of the par...
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*435 MEMORANDUM AND ORDER The debtor seeks an adjudication of contempt as to Beech Acceptance Corporation (“Beech”) and a turnover order with respect to an aircraft in Beech’s possession, identified as Beechcraft Model C-99, Serial No. U-181, F.A.A. No. N62936 (“C-99”). Beech seeks a judgment that the estate has no interest in the C-99. FACTS The material facts are not ...
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Memorandum and Order The United States on behalf of the Secretary of Housing and Urban Development has requested that this court compel debt- or, EES Lambert Associates, an Illinois limited partnership, to restore certain funds to the debtor’s estate which EES Lambert paid, pre-petition, as legal fees. EES Lambert is the owner of certain real estate in Justice, Illinois known as ...
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MEMORANDUM OPINION This case presents a common question of the dischargeability of a debt created by a pre-bankruptcy support order in favor of the debtor’s ex-wife, but presents the question in a somewhat unusual procedural context. The legal issue of course is whether the debt in question is a debt owing “to a spouse, former spouse ... for alimony to, maintenance for, or support of such spous...
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MEMORANDUM OPINION The issue in this case is whether a $5,000 lump sum payment, denominated as additional child support in a divorce decree, and payable approximately one year after the divorce, is dischargeable. The parties, former spouses, separated in August, 1983. A stipulated final decree of divorce was entered January 11, 1984. The debtor filed this adversary proceeding against his form...
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Citizens Savings Bank (“Citizens”), a mortgagee of the debtor’s landlord, who also has a right to receive rent from the debtor pursuant to an assignment of rents made by the landlord as additional security for Citizens’ loans to the landlord, seeks an order pursuant to 11 U.S.C. § 365(d)(2) fixing a time within which the debtor shall be compelled to assume or reject the lease for its only place...
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ORDER DENYING MOTIONS FOR A STAY PENDING APPEAL This Chapter 11 contested matter is before the Court pursuant to the motions of Linda Garner, Arkansas Receiver, J. Henry Schroder Bank and Trust Company, and the Common Stockholders’ Committee (“Movants”) for a stay pending appeal under Bankruptcy Rules 8005 and 7062. These motions follow this Court’s October 19, 1984 Order granting the Debtors...
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FINDING AS TO LIEN AVOIDANCE On January 17, 1984, the debtors filed their motion to avoid certain judicial liens pursuant to 11 U.S.C. section 522(f)(1). The liens sought to be avoided were held by BancOhio National Bank (“BancOhio”), First Federal Savings & Loan of Mt. Vernon (“First Federal”), and The Kissell Company (“Kissell). First Federal and Kissell did not respond or in any way op...
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MEMORANDUM At issue is the title to and ownership of approximately 2,678 acres of land in Over-ton County, Tennessee. 1 After consideration of the proof, briefs and arguments of the parties, the court determines that valid title is held by the debtor-in-possession. The following constitute findings of fact and conclusions of law as required by Rule 7052 of the Bankruptcy R...
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DECISION AND ORDER The debtors, dairy farmers, filed a voluntary petition under chapter 7 of the Bankruptcy Code on January 21, 1983. At that time, they had a written patronage agreement with Lake to Lake Dairy Cooperative (Lake to Lake), which was signed by Merle Herschell (Herschell), whereby they delivered to and marketed their milk through Lake to Lake. The debtors’ interest in this contrac...
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ORDER THIS MATTER comes before the court sua sponte. On August 6, 1984, the debtor filed her Chapter 13 Petition accompanied by the proper schedules, motions and proposed plan. On September 26, 1984, Charles B. Dickson, Esq., of Dickson and Dickson, Greeley, Colorado, filed an Objection to Confirmation of Proposed Chapter 13 Plan *669 and a Motion for Relief from Stay, both on behalf of h...
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ORDER This matter has come before the Court upon the motion filed on September 26, 1984 by the Debtor “to amend Chapter 13 case” so as to include the Debtor’s estranged husband, Franklin R. Perkins, as a co-petitioner. The Debtor alleges that failure to include the husband in the original petition was an oversight. The Bankruptcy Code specifically prohibits an involuntary Chapter 13 case. 11 ...
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ORDER ON MOTION TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 11 Reorganization case and the immediate matters under consideration are (1) a Motion to Dismiss, Debtor’s Complaint to Avoid Preferential Transfers and to Invalidate Security Interest, filed by the Defendant, E.J. Management Corporation (E.J. Management), (2) a Motion for Summary Judgment, also filed by E.J. Ma...
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ORDER' The above-entitled matter came to trial before the Honorable Margaret A. Maho-ney on September 10, 1984. Plaintiff filed its complaint on March 16, 1982, alleging *54 preferential transfers by Defendant pursuant to 11 U.S.C. § 547. Defendant denied Plaintiffs allegations and counterclaimed for a setoff in an amount equal to that which Defendant would be entitled to rec...
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*423 OPINION CAME ON to be heard and was heard the complaint for recovery and redemption of property filed by the Plaintiffs, John A. Williams, Jr., and Deloris Williams, against the Defendant, Guaranty Agricultural Credit Corporation; answer filed by said Defendant; all parties being represented by their respective attorneys of record; on proof before the Court; and the Court having heard an...
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Various applications for allowances have been submitted for consideration in this confirmed Chapter XI case which was originally filed on December 18, 1976 under the former Bankruptcy Act of 1898, as amended. The Chapter XI case was aborted on March 11, 1977 with the result that Harvey S. Barr, the stand-by trustee, became the trustee in bankruptcy. Thereafter, new management of the corporate d...
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A creditor’s motion to compel a debtor either to assume or reject an executory contract pursuant to 11 U.S.C. § 365(d)(2) raises the issue as to whether the debtor is entitled to a declaratory judgment that it was not in default under the contract in question when the creditor is willing to waive its right, for the purpose of 11 U.S.C. § 365(b)(1), to require the debtor to cure or provide adequ...
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MEMORANDUM AND ORDER DENYING MOTIONS TO JOIN AS A PARTY PLAINTIFF OR TO INTERVENE AND TO PARTICIPATE IN DEPOSITION This matter is before the court on the motions of Harry Snyder, creditor, to either join as a party plaintiff pursuant to Bankruptcy Rule 7020, F.R.C.P. 20 or to intervene under Bankruptcy Rule 7024, F.R.C.P. 24, and to participate in debtors’ deposition scheduled for October...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on an application for classification of claim. A hearing was held on August 16, 1984, with the parties submitting extensive briefs, both pre- and post-hearing. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 157. 1 A discussion of the facts leading up to the application will put the matter in its p...
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OPINION The issue before us is whether an individual exercising an adequate power of attorney, executed by a debtor, may appear in the debtor’s stead at the debtor’s § 341 meeting. We conclude that, under the circumstances of this case, she may not and, accordingly, we will grant a creditor’s motion to dismiss the case. The facts of this case are as follows: 1 In July of 1983, Renee O’Donne...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial on July 18, 1983, upon the Plaintiff’s Complaint seeking, primarily, imposition of an attorney’s charging lien or an equitable lien upon the proceeds of sale of certain real properties which are a part of the Debtors’ estate herein. The Defendant, A.W. BECK, TRUSTEE, has filed his Answer and Affirmative Defenses, denying Plainti...
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MEMORANDUM OF DECISION ISSUE Whether the trustee as a bona fide purchaser under 11 U.S.C. § 545(2) may avoid a Louisiana vendor’s lien privilege attaching to tubular drill casing sold debtor by objectant. 1 *652 FACTS Material facts are not in dispute: Objec-tant, Stupp Corporation, a Delaware corporation with its principal place of business in Baton Rouge,...
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MEMORANDUM OPINION This matter came before the Court upon the motion of the debtor to avoid the judicial liens of Conagra, Inc., Albuquerque Publishing Company, Sunwest Bank and Karler Packing Co., Inc. (judgment creditors) pursuant to 11 U.S.C. § 522(f). On the date of filing of the debtor’s bankruptcy petition, the debtor claimed a homestead exemption in residential property which was l...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for in camera Review and Preservation Under Seal of Certain Hearing Exhibits. The Court has reviewed both the written and oral arguments offered by counsel on behalf of the Motion. Based upon that review and for the following reasons the Court finds that the Motion should be DENIED. FACTS The Movant is the Trus...
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MEMORANDUM OF DECISION This matter is before the court upon a complaint filed by the plaintiff, Bank One of Akron, N.A. (Bank or plaintiff) on November 10, 1983. The Bank seeks a money judgment for $5,901.59 plus interest, alleging that the defendant, Farmers Production Credit of Ashland (PCA or defendant), has wrongfully sold, and retained the proceeds of, a certain International Harvester tra...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This is an adversary proceeding commenced by Veronica Hampton, the Plaintiff and former wife of Ronald Wayne Hampton, the Chapter 11 Debtor in the above- *634 styled case. The immediate matters under consideration are two Motions for Summary Judgment as to Count II of the Plaintiffs Complaint, filed by the respective parties who agree that there are no ge...
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ORDER ON OBJECTION TO CLAIM THIS CAUSE came on for hearing upon an Objection to Claim of the National Collection Agency, Inc. filed by Nicholas and Venus Pastis, the Debtors in the above-styled Chapter 11 case. National filed its claim in the amount of $32,830 for monies due and owing pursuant to an equipment lease entered into between Equico Lessors and the Debtors which was later assigned to Na...
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ORDER ON MOTION FOR RECONSIDERATION THIS CAUSE came on for hearing upon a Motion for Reconsideration filed by Glen G. Richardson and Martha M. Richardson, the Debtors in the above-styled Chapter 7 case. The Motion is addressed to this Court’s Order of July 17, 1984 in which the Court vacated a June 12, 1984 Order which converted the Debtor’s Chapter 7 case to one under Chapter 13, and whi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on to be heard on the Involuntary Petition filed by the sole limited partner of Beacon Reef Limited Partnership, Dr. Wulsin, pursuant to an Involuntary Petition under § 303 of the Bankruptcy Code, filed April 30, 1984. Trial in this cause was held August 22, 1984 and August 24, 1984. Two of three general partners of Beacon Reef Limited P...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial upon the Complaint of the Debtor, DRISCOLL’S TOWING SERVICE, INC., (hereinafter referred to as DEBTOR or DRISCOLL’S) against the UNITED STATES OF AMERICA DEPARTMENT OF TREASURY AND INTERNAL REVENUE SERVICE (hereinafter referred to as INTERNAL REVENUE SERVICE or IRS) seeking preliminary and permanent injunctive relief pursuant ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The above adversary proceedings involve numerous questions of fact and law regarding the amount, validity and priority of various claims to $1,500,000 plus accrued interest constituting the proceeds of settlement of a pre-bankruptcy lawsuit by the debtor against Jewelers Mutual Insurance Company (“Jewelers”). They were tried together on July 11, and...
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*642 MEMORANDUM DECISION AND ORDER Equitable Life Assurance Society (Equitable Life) requests modification of the automatic stay provided by 11 U.S.C. § 362. Equitable seeks to begin a judicial foreclosure of its mortgage which encumbers real property owned by the chapter 11 debtor, Sun Valley Ranches, Inc. (SVR). SVR argues that Equitable Life is precluded from bringing this motion because o...
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DECISION ON MOTION FOR SUMMARY JUDGMENT The trustee of Euro-Swiss International Corp. (“Euro-Swiss”), a Chapter 7 debtor in a bankruptcy case pending in this district, seeks to impress a constructive trust upon funds in a bank account maintained by Martin Fein & Co., Inc. (“Martin Fein”), a Chapter 7 debtor in this court, who conducted a sale as auctioneer for the Euro-Swiss trustee and d...
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DECISION AND ORDER This is an adversary proceeding commenced by the debtors on July 26, 1983, seeking avoidance of several judgment liens. The relief requested was granted upon default as to the defendant Diners Club, Inc. The complaint was dismissed as to the defendant Bank of Commerce because its lien arose prior to the enactment of 11 U.S.C. § 522(f). See U.S. v. Security Industr...
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OPINION AND ORDER This matter is before the Court upon the motion of the Plaintiff, The Metropolitan Bank of Lima, Ohio, for summary judgment against the Defendant/Trustee, Quentin M. Derryberry, II, for turnover of *66 the proceeds of sale of certain growing crops, and upon the trustee’s cross motion for summary judgment of dismissal of plaintiffs complaint. The trustee ...
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DECISION ON DEBTOR’S MOTION FOR ATTORNEY’S FEES On June 4, 1984, this Court entered a decision and judgment in favor of the debt- or, Susan Hagan, holding that the Social Security Administration’s (SSA) retention of her post-petition benefits was a violation of the automatic stay, 11 U.S.C. § 362. See Hagan v. Heckler (In re Hagan), 41 B.R. 122, 11 B.C.D. 1370 (Bankr.D.R.I.1984...
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MEMORANDUM The issue is whether the secured claim of Farmers Home Administration (“FmHA”) *630is limited to the amount stated on the face of its U.C.C.-l financing statement. Because the reference to the original loan amount on the financing statement in this case is not a misleading surplusage, the FmHA is fully secured for subsequent advances to the debtor. The following constitute findings of f...
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MEMORANDUM This matter is before the court on a motion filed by six administrative claimants (hereinafter referred to as “claimants”) of the preceding Chapter 11 estates requesting that this court order Thomas E. Ray, acting Chapter 7 trustee (hereinafter referred to as the “trustee”), to comply with the confirmed plan of the preceding Chapter 11 eases. The trustee has asserted that he is...
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MEMORANDUM This matter is before the court on the Chapter 7 trustee’s objection to the debtors’ claim that they are entitled to exempt $1,290 of undistributed funds paid to the Chapter 13 trustee in furtherance of the debtors’ confirmed Chapter 13 plan. The trustee asserts that the undistributed funds are property of the Chapter 7 estate which may not be exempted by the debtors due to 11 ...
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MEMORANDUM OPINION AND ORDER CASE SUMMARY This is a civil proceeding to determine the dischargeability of a debt. It is brought pursuant to Section 523(a)(2)(B) of the Code for a determination that the subject debt was incurred when the debtor obtained money through the use of a materially false written statement about the debtor's financial condition on which the plaintiff’s assigno...
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MEMORANDUM OPINION AND ORDER DENYING JUDY UNKEPER’S MOTION FOR SUMMARY JUDGMENT RE: CLAIM OF $50,000 HOMESTEAD EXEMPTION Sherman Unkefer, III and Judy Unkefer, husband and wife, were named as debtors in an involuntary Chapter 7 petition that was filed on February 7, 1983. These debtors subsequently dissolved their marriage, and now each has claimed a $50,000 homestead exemption pursuant to 11 U.S...
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MEMORANDUM OPINION Farmers’ Co-Op of Arkansas and Oklahoma, Inc. (co-op) filed a voluntary petition for bankruptcy on the 23rd day of February, 1984 under the provisions of Chapter 11. On March 2, 1984 Citizens Bank and Trust Company of Van Burén (bank) filed a claim as a general unsecured creditor for $369,980.03, principal, and $43,940.19, interest as of February 29, 1983. On April 23, ...
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ORDER RE: CASH COLLATERAL Consolidated Capital Income Trust (CCIT) is a secured creditor of the above-named debtors, by virtue of a Deed of Trust recorded May 2, 1983, in Book 2801, at page 81 of the Records of the Clerk and Recorder in Denver County, Colorado. This Deed of Trust secures a Promissory Note in the principal amount of $15,000,-000.00. Additionally, there has been recorded a ...
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JOURNAL ENTRY NOW on this 25th day of September, 1984 comes on for hearing the “Debtors’ Modification of Plan After Confirmation to Pay I.R.S. Claim for 1983 Taxes in the Amount of $3,849.08,” and “Objection of U.S.A./I.R.S. to Confirmation of Debtors’ Modified Plan”. Larry E. Schneider appeared on behalf of the debtors and Lloyd C. Swartz appeared as Standing Trustee; there were no other appea...
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MEMORANDUM OPINION and ORDER The matter before the court is the Petition of the New Hampshire Insurance Company (hereinafter “NHIC”) filed on July 6, 1983 seeking leave to file a formal proof of claim, also submitted on July 6, 1983, subsequent to the April 6, 1983 claims bar date established by this court’s prior order of September 23, 1982. The claim in question is in the amount of $783...
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MEMORANDUM OPINION CONFLICT OF LAWS This case came before the Bankruptcy Court when it was removed from the Western District of Texas, San Antonio Division. In conjunction with this removal, the question has arisen as to which state’s law should be applicable in deciding this case. The defendant, third-party plaintiff, Gary L. Bennett argues that his allegations of fraud, deceit, and conspira...
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MEMORANDUM OPINION The matter before the court is the defendants’ request for voluntary abstention pursuant to 28 U.S.C. § 1334(c)(1). On September 27,1984 this court entered an order denying the defendants’ request for mandatory abstention under 28 U.S.C. § 1334(c)(2). The court found that although this adversary proceeding brought by the debtor-in-possession to collect two accounts receivab...
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MEMORANDUM At issue is the dischargeability of a state court judgment requiring the debtor to pay medical expenses for the birth of his illegitimate son and to pay attorney’s fees incurred by the mother in her successful paternity suit. Because this judgment is not within the class of nondischargeable debts described in 11 U.S.C.A. § 523(a)(5) (West 1979) the debts are dischargeable. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon a Complaint to Determine Non-dischargeability of a Debt under 11 U.S.C. Section 523(a)(5) and for Injunctive Relief and the Court having heard the testimony and examined the evidence presented; observed the candor and demeanor of the witnesses; considered the arguments of counsel and being otherwise fully...
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Upon reading and filing of the Complaint, Answer with Affirmative Defenses and after James F. Selbach appearing on behalf of the debtor/defendant and Sheldon G. Kali appearing on behalf of the plaintiff and after the said James F. Sel-bach moving for an order dismissing the complaint, and after due deliberation having been had, NOW, upon the motion of James F. Sel-bach, it is ORDERED, that the mot...
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MEMORANDUM OPINION AND ORDER By Complaint originally filed November 16, 1982, and as amended December 3, 1983, the Plaintiff, Minot Area Development Corporation, Inc. (MADC) seeks relief from stay in order to foreclose its security interest in a wood-frame ski lodge. The Defendant/Trustee interposed an Answer claiming the Plaintiffs security interest to be unperfected and subordinate to the lie...
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MEMORANDUM OPINION The issue in this case is whether a party that allegedly failed to receive notice of a judgment may be relieved from that judgment under F.R.Civ.P. 60(b), as incorporated by Bankruptcy Rule 9024, after the time for appeal has passed. I hold that in this case no such relief can be granted and the appeal must therefore be dismissed for lack of jurisdiction. In this a...
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MEMORANDUM OPINION CASE SUMMARY In this case, the court is asked to determine whether or not unsecured debts which are disputed by the debtor, should be added to the sum of noncontingent, liquidated, unsecured debt for purposes of determining Chapter 13 eligibility. Section 109(e) of the Bankruptcy Code requires that only “noncontingent” and “liquidated” debts be counted for eligibil...
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MEMORANDUM OPINION AND ORDER Plaintiff-Debtors seek declaratory relief to have this court determine whether cer*416tain real estate in which they have a vested remainder interest is property of the Debtors’ estate in the present Chapter 13 case. The essential facts are not disputed. On May 27, 1981, Homer Dale Weddle, husband of Elsie Marie Weddle and father of Junior Dale Weddle, executed a Last...
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OPINION AND ORDER This matter came before the Court on the motion of Jefferson Federal Savings and Loan, Inc. requesting this Court to reconsider its Order of June 1, 1984 classifying Jefferson Federal’s claim as unsecured. The issue presented on rehearing is whether an assignment for security of a purchaser’s rights under a bond for title is included within the scope of Article 9 of the ...
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MEMORANDUM DECISION Glen and Donna Wallen, debtors in a chapter 11 proceeding, have moved to exclude Ron Hazel from participating in the management of the North Idaho Cowboy Bar, in which the Wallens and Hazel were partners. The Wallens also seek to prevent Hazel from removing any property from the business premises, from paying any expenses out of business funds and, apparently, from purchasin...
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FINDING AS TO FILING OF CLAIM In this Chapter 7 proceeding Theodore and Graciela Carlton have filed a motion for an order permitting a late filing of a proof of claim. The Warren Production Credit Association, a creditor of the estate, has objected to the Carlton’s motion. Upon consideration of the evidence at the hearing, the Carlton’s proffered proof of claim, and the entire file,, the ...
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FINDING AS TO DISCHARGE OF DEBTS The debtors filed a Chapter 13 proceeding in this court which was subsequently converted to a proceeding under Chapter 7 of the Bankruptcy Code. On March 21, 1983 the Chapter 7 trustee, Carl D. Rafoth, filed a complaint objecting to the discharge of the debtors. It has been agreed by the parties involved that Joseph A. Chimento should be dismissed as a par...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW Re: DISPOSITION OF D.H. BALDWIN’S CLASS 2 LIMITED PARTNERSHIP INTERESTS IN CENTRAL COLORADO COMPANY These Chapter 11 cases are before the Court upon the Debtors’ July 27, 1984 mo *890 tion to dispose 1 of certain partnership interests which debtor D.H. Baldwin Co. (“DHB”) holds in Central Colorado Company, and for an...
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OPINION The motion of Willow Grove Federal Savings and Loan Association for relief from the automatic stay pursuant to § 362(d) is before the Court. After hearing at which argument only was heard and upon examination of the stipulated documents and pleadings, we will deny the relief requested. *411 The facts as alleged in the pleadings are as follows: 1 Willow Grove Federal Savings and Lo...
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CONCLUSIONS BY THE COURT AND ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN Background— The above-styled case was filed under Chapter 13, Title 11, United States Code, in the prior Court September 2, 1983. It continues to be pending before this Court under said chapter. The debtors filed with the petition a Chapter 13 plan which proposed to pay each allowed secured claim, togethe...
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FINDINGS OF FACT, CONCLUSIONS OF ' LAW,. AND FINAL DECREE THAT THE DEFENDANTS’ INDEBTEDNESS TO PLAINTIFF IN THE SUM OF $4,095.30 BE, AND IT IS HEREBY, DECLARED TO BE NONDIS-CHARGEABLE IN BANKRUPTCY AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM FROM THE DEFENDANTS The plaintiff seeks judgment from the defendants in the sum of $4,095.30 for credit card charges incurred by ...
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The Official Committee of Municipal Entities and School District Creditors (the “Committee”) has moved this Court for an order pursuant to § 1103 of the Bankruptcy Code (11 U.S.C. § 101 et seq.) (1978) (the “Code”) for an order authorizing the Committee to retain the law firm of Anderson, Russell, Kill & Olick P.C. (the “Anderson Firm”) as its counsel in these proceedings. I ...
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OPINION The issue at bench is whether a mortgage which was inadvertently satisfied through an error of the mortgagee may be reinstated. The question is presented on the mortgagee’s action for a determination of the secured status of its lien against the debtor’s property. We conclude that, under the circumstances of this case, the mortgage should be reinstated. The facts of this case...
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OPINION The issue under consideration is whether, under 11 U.S.C. § 1144 of the Bankruptcy Code (“the Code”), we should grant a creditor’s motion to set aside an order confirming a chapter 11 plan where the debtor’s counsel failed either to list the creditor in the debtor’s schedules or to apprise the court at the confirmation hearing of the pendency of the debtor’s motion for assumption ...
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FINDINGS AND CONCLUSIONS BY THE COURT Introduction: — The above-styled case was filed under Chapter 11, United States Code, in the predecessor Court, on August 23, 1983, and remains pending under said chapter, in this Court. The above-styled adversary proceeding in said case was commenced in this Court, on August 24, 1984, by a creditor which seeks to have the Court determine that a debt (a...
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OPINION —DATE OF TRANSFER BY CHECK FOR PURPOSES OF § 547(b) and § 547(c) —CONTEMPORANEOUS EXCHANGE EXCEPTION TO PREFERENCES (§ 547(c)(1)) —ORDINARY COURSE OF BUSINESS EXCEPTION TO PREFERENCES (§ 547(c)(2)) —SUBSEQUENT ADVANCE EXCEPTION TO PREFERENCES (§ 547(c)(4)) The trustee appointed in this case, Richard C. Remes, commenced this adversary proceeding against the defe...
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MEMORANDUM OPINION On August 31, 1981 the Plaintiffs, Park and Eva Chapman, executed a land contract with the Defendant debtor, Charles H. Britton, by which the debtor purchased a 40 acre horse ranch located in Lennon, Michigan. The total purchase price was $145,000; Britton paid a $20,000 cash down payment leaving a balance of $125,000 on the contract. Interest on the contract is 8% annually...
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MEMORANDUM OPINION GRANTING SUMMARY JUDGMENT The parties have cross-moved for summary judgment, asserting that the facts are uncontested and the issue is one purely of law. The Court agrees. On April 19,1976, First National Bank of Lapeer (the “bank”) and Lawrence Blair *10 Kelly (the “debtor”) entered into a land contract wherein the bank 1 was the vendor and...
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OPINION On February 3, 1984, SCK Corp. (SCK) filed a petition in bankruptcy under Chapter 11 of Title 11 of the U.S. Code, and thereafter continued in the possession of its assets and the management of its business as debtor in possession. On March 30, 1984, soon after the filing, SCK commenced an adversary proceeding (No. 84-0138) against Charles Rosenblum *167 (Rosenblum) seeking declarat...
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MEMORANDUM OPINION The Trustee, John G. Leake, in this confirmed Chapter 11 case has applied to the court for leave to employ the services of Dale A. Davenport, Esquire, as Attorney for the Trustee under a general retainer, nunc pro tunc to October 3, 1984, the approximate date the Trustee qualified. The issue is whether or not a nunc pro tunc Order is appropriate. Upon hearing of the app...
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MEMORANDUM AND ORDER BACKGROUND The debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on *251 May 7, 1984. On the same date, the debtor applied for an order to pay the $60.00 filing fee required under 28 U.S.C. § 1930(a) in installments. On May 9, 1984, this court entered an order, requiring that the entire fee be paid on or before August 7, 1984. The debtor failed to...
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*421MEMORANDUM OPINION AND ORDER Anthony B. Battaglia (Debtor) and Linda Morgan were formerly husband and wife. Following separation in January of 1982, they entered into a “Property Agreement” in July 1983. At that time, they were jointly liable for the following debts: Mast-ercard ($285); Associated Finance ($3,000); Girard Bank ($1,000); Sears ($480); Pomer-oy’s ($180); and Gemco Employee’s Fe...
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ORDER ON DETERMINATION OF NON-DISCHARGEABILITY OF DEBT THIS MATTER came on for hearing before the Court on October 2, 1984 on the Petition of the United States of America to Determine The Non-Dischargeability of a Debt. The United States of America introduced into evidence certified copies of documents representing scholarship funds awarded to debtor during designated academic periods from 19...
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MEMORANDUM AND DECISION The debtor filed a complaint under § 523(a)(8) to determine the dischargeability of a debt owed to the State University of New York (S.U.N.Y.) and the New York State Higher Education Services Corporation (N.Y.S.H.E.S.C.). The S.U.N.Y. failed to answer to attend the pre-trial conference and this Court entered a default judgment against S.U.N.Y. on February 21, 1984. The N.Y....
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OPINION A mortgagee’s motion for relief from the automatic stay under § 362(d)(1) in order to complete a foreclosure sale and a motion by the debtor to set aside the sale are jointly before the Court. For the reasons stated herein, we will deny the motion for relief from the stay and reserve ruling on the motion to set aside the sheriff’s sale. The facts of the case are as follows: ...
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MEMORANDUM OPINION In this adversary proceeding, the defendant has filed, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, as *386 incorporated by Rule 7012 of the Rules of Bankruptcy Procedure, a motion to dismiss the Chapter 11 debtor/plaintiff’s complaint for failure to state a claim upon which relief can be granted. For the following reasons, we shall de...
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This matter is before the Court on the Complaint of Stuben P. Hadden, a creditor, against the debtor, Christine I. Stone, to Determine Dischargeability of Debt. FACTS Christine I. Stone filed a Petition for Relief under Chapter 7 of the Bankruptcy Code on June 14, 1984 and listed in her Schedules, as one of her unsecured creditors, “Stuben P. Hadden” of East Green-bush, New York, in t...
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MEMORANDUM OPINION Ronald W. Staley, t/a Bi-State Ventila-tions, filed a Chapter 7 liquidation case in this court on March 19, 1982. Thereafter, Mining Environments, Inc., Plaintiff, filed the within Complaint seeking a determination that its claim against the Debtor in the sum of $71,283.73 was nondischargeable. In response thereto, the Defendant filed its answer and motion to dismiss or, in the...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case and the matter before the Court is a Complaint to Determine Dischargeability of Debt filed by Charles Cannady, Robert Simmons, Alfred Thorpes, Nathaniel Hart, Johnny Wardlaw, Wilbur Davis, Idell Speed, Frank Zachary and William Nelson, Florida Rural Legal Services (Plaintiffs) against the Debtor Everett Fletcher, Sr. An identic...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THE MATTER under consideration is an Objection to Claim filed in the above-captioned Chapter 11 case by Harrison Inter-nation, Inc. (Harrison). The claim is challenged by George G. Solar, Inc., the Debt- or, who seeks rehabilitation under Chapter 11 of the Bankruptcy Code. The claim, originally filed in the amount of $115,000, is based on a Second Amended Fina...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a misuse of credit card case and the matter under consideration is the dis-chargeability vel non of a debt in the amount of $4,770.42 admittedly owed by, Robert E. Moore (Debtor) to The Chase Manhattan Bank, N.A., (Chase Manhattan), the Plaintiff who instituted this adversary proceeding. The claim of non-dischargeability is based ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On October 14, 1982, Miramar Hotel (Hawaii), Inc., hereafter “Applicant”, filed an Application for Disbursal of Proceeds seeking payment of all proceeds received from the auction sale of all the equipment, furniture and inventory which had been in possession of Hyun-Bok Chung and Sin-Suk Chung, hereafter “Debtors”, who operated the Miramar Boutique (herea...
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MEMORANDUM AND ORDER At issue in this matter is the res judica-ta effect of a certain order entered by the Circuit Court of Cook County, which order was premised upon an award by a Board of Arbitrators of the Chicago Board of Trade. The plaintiff in the present adversary proceeding (“Kern”) argues that the order in question should be res judicata as to the amount of ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT The above-entitled matter came on for hearing before the undersigned on the complaint of Norwest Card Services objecting to discharge of a debt of $4,137.09 under 11 U.S.C. § 523(a). For the reasons outlined below, I am denying discharge of $2,120.03 of Debtor’s debt to Norwest Card Services. Facts 1. Lawrence J. Ba...
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DECISION & ORDER The standing Chapter 13 trustee (“trustee”) has moved pursuant to 11 U.S.C. § 329 for judicial review of the fees paid by Claude Bolton, a Chapter 13 debtor, to his attorney. The trustee seeks a declaration *599 of the reasonable value of the attorney’s services consonant with an order requiring the return of all amounts paid by the debt- or in excess of such...
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OPINION Two applications are pending before the Court. The debtor herein, Featherworks Corporation, Inc. (“Featherworks”), is seeking an order approving a Second Amended Disclosure Statement and authorizing Featherworks to solicit acceptances or rejections of the “Debtor’s Amended Plan of Reorganization.” This application has generated a motion by Far West Garments, Inc. (“Far West”), the debtor’s...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The instant adversary proceeding filed by Key Bank of Central New York (hereinafter, the Bank) against Cathy B. Sarkin (hereinafter, the Debtor) requests the Court determine a debt owed the Bank by the Debtor nondischargeable. The gravamen of the Bank’s position is that the Debt- or obtained a credit card under false pretenses ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for Summary Judgment filed by the Plaintiff in this adversary action. The parties have each submitted written argu*681ments regarding the merits of the Motion and the affidavits, documents, and transcripts upon which those arguments rely. They have also had the opportunity to respond to the arguments set forth by opposi...
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OPINION The predominant issue arising under the debtor’s complaint and a creditor’s 1 counterclaim is the amount of damages to be awarded to a supplier of yarn when the spinner of wool defectively performs its task. Under the facts of the case before us and for the reasons expressed herein, we hold that the measure of damages is approximately the price at which the supplier of yarn would have...
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MEMORANDUM On June 11, 1984, the debtor filed objections to the final account of the trustee. The trustee’s final account proposed that the balance for distribution, after the payment of administration expenses pursuant to 11 U.S.C. § 503, be divided pro rata among the Internal Revenue Service (IRS), *52Pennsylvania Office of Employment Security (O.E.S.) and United States Department of Interior (I...
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DECISION The issue before the court involves the claims of certain employees for vacation and severance pay and the debtor’s objections thereto. The debtor filed a voluntary petition under chapter 11 of the Bankruptcy Code on April 1, 1983. Within a day or two, all employees were paid in full for those wages earned prior to April 1, 1983 which were entitled to priority under § 507(a)(3) of the ...
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OPINION Movant DVM Company leased space in Metrocenter Mall to the debtors-in-possession, John and Kathaleen Bricker, dba Basket House. The lease, in a use clause, set forth the items that could be sold, including “Arizona Souvenirs”. Sales of items not in conformity with the lease’s restrictions, without the landlord’s prior written consent constituted a breach or default. DVM Co. ...
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ORDER GRANTING CHAPTER 13 DEBTOR’S MOTION TO AVOID LIEN PURSUANT TO 11 U.S.C. § 522(f)(2) This issue comes before the Court on the debtor’s motion to avoid a lien under 11 U.S.C. § 522(f) in this Chapter 13 case and specifically upon the brief of the debtor urging this Court to recede from its position adopted in In re Corden, 19 B.R. 552 (Bkrtcy.M.D.Fla.1982), in which this Court held that s...
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ORDER The continued hearing on the motion to dismiss filed by certain pre-bankruptcy judgment creditors was called on October 10, 1984. The parties appeared by counsel and presented testimony and evidence on the record. At the conclusion of the hearing, the Court announced its findings and conclusions from the bench. The testimony, at the hearing was presented by Robert L. Powell, the elected...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DECLARING DEFENDANT’S INDEBTEDNESS TO PLAINTIFF ON ACCOUNT OF $700 MONTHLY SUPPORT PROVISION TO BE NONDIS-CHARGEABLE IN BANKRUPTCY IN AN AMOUNT TO BE DETERMINED BY THE STATE COURT The plaintiff seeks a decree of nondis-chargeability, pursuant to section 523(a)(5) of the Bankruptcy Code, of sums awarded to her as support, maintenance or alimo...
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ORDER ALLOWING OBJECTIONS TO CLAIMS #78,. #140 AND #223 AND DENYING OBJECTIONS TO CLAIMS # 71, # 79, # 89, # 108, # 109, # 114 and #115 This matter is before the court to consider the trustee’s objections to ten 11 U.S.C. § 507(a)(5) priority claims. A hearing was held in Raleigh, North Carolina on October 1, 1984. The facts are not disputed. Prior to filing for bankruptcy relie...
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OPINION The threshold issue in the case at bench is whether the automatic stay applies to a debtor’s action to set aside a sheriff’s sale. If so, the second issue before us is whether a mortgagee is entitled to relief from said stay for cause based on the debtor’s filing of its petition under Chapter 11 of the Bankruptcy Code (“the Code”) on the day on which a hearing on the sheriff’s sal...
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Heard on the debtor in possession’s complaint to have the Town of Lincoln enjoined from removing and disposing of his used truck parts inventory located at 130 Cobble Hill Road, Lincoln, Rhode Island. In addition to the injunctive relief sought, the debtor in possession (hereinafter debtor) requests compensatory damages of $150,-000, interest and costs. The defendant Town of Lincoln asserts tha...
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OPINION AND ORDER This matter came before the Court for hearing on the Debtors’ objection to the Trustee’s proposed abandonment of property of the estate. 1. Timeliness of the Objection. The first issue presented is whether the Debtor’s objection was timely. The Trustee’s notice of intention to abandon property was filed on May 24, 1984 and the day before (i.e., ...
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FINDINGS AND CONCLUSIONS This is an adversary proceeding brought by the trustee for the debtor, Monex Corporation, against the debtor’s principal, Milton Perlman, to recover a debt arising from advances by the corporation to Perlman (Count I) and to impose a constructive trust upon real property owned by Perlman, on which Monex Corporation operated its manufacturing business, arising from...
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MEMORANDUM AND ORDER The Rhode Island Hospital Trust National Bank (“Bank”) and the United States of America, on behalf of the Farmer’s Home Administration (“FmHA”), each claiming a duly perfected security interest in a flock of live starcross shaver chickens owned by Northeast Chick Services, Inc. (“the “debt- or”) and/or the proceeds from the sale thereof, filed adversary proceedings to...
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MEMORANDUM OPINION This matter comes before the Court on remand from the District Court for further proceedings in which this Court is to reconsider, in light of several cited cases, whether the circumstances warrant treatment of First Bank of Billings, Montana’s claim as an administrative expense priority claim. The basic facts are set forth in the District Court’s Memorandum Opinio...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff, Susan I. Barto, is the former wife of the debtor/defendant, Barry Lee Bowers. She has filed a complaint against the debt- or, alleging that a debt owed to her by the debtor is nondischargeable pursuant to section 523(a)(5) of the Bankruptcy Code, 11 U.S.C. § 523(a)(5), because the debt is actually in the nature of alimony. For the ...
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MEMORANDUM DECISION AND JUDGMENT RE TAX CLAIM OF KING COUNTY The trustee’s motion for summary judgment presents the following issue: Does the exception to the § 362(a)(4) automatic stay provided for by 11 U.S.C. § 546(b) apply to King County’s post-bankruptcy listing and valuation of personal property and resulting tax lien claim thereon under RCW 84.60.020? Determination of this issue tu...
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OPINION This action was commenced by Walter E. Heller & Company (“Heller”), the holder of a perfected security interest in the accounts receivable of the debtor, Fasa-no/Harriss Pie Company (“Fasano/Har-riss”) 1 and Richard C. Remes, the duly appointed Chapter 7 trustee in this case, to recover $36,340.04 for frozen pies allegedly sold by the debtor, a Michigan corporation, to ...
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OPINION On consideration of the objection to exemption filed by the Trustee, Jacob C. Pon-getti, hereinafter referred to as Trustee; all parties being represented by their respective attorneys of record; on proof before the Court; and the Court having heard and considered same, finds as follows, to-wit: I. The Debtor, William D. Curtis, purchased a new 1982 International truck-t...
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MEMORANDUM OPINION This matter came before the court upon the trustee’s motion for summary judgment on his complaint to avoid an alleged preferential transfer to the defendants. The defendants have cross-moved for summary judgment on the complaint. The court heard oral argument from the parties on June 11, 1984. Based upon the parties’ *453 motions, affidavits and oral argume...
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MEMORANDUM AND ORDER Cynthia Ann Holland, the former wife of Dusty Lee Holland, debtor, filed complaint under 11 U.S.C. § 523(a)(5), seeking to except from debtor’s discharge his obligation to pay debts of the former community as those debts were described in a divorce decree and settlement agreement. The following summary constitutes findings of fact and conclusions of law after nonjury trial....
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MEMORANDUM AND ORDER ON MOTION OF PIONEER CREDIT CORPORATION TO STRIKE DEBTOR’S ANSWERS TO INTERROGATORIES This matter is before the Court on the Motion of Pioneer Credit Corporation to Strike the Debtor’s Answers to Interrogatories propounded relative to its Motion for Relief from Automatic Stay. Discovery was initiated by Pioneer by virtue of its Interrogatories and Request for Production o...
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FINDINGS OF FACT, CONCLUSIONS AND ORDER ON TRUSTEE’S COMPLAINT FOR TURNOVER This case comes before the Court upon the Chapter 7 Trustee’s Complaint for Turnover pursuant to section 542 of the Bankruptcy Code. The undisputed facts follow. The Debtors filed a Chapter 13 Petition in bankruptcy on October 23, 1981. An Amended Chapter 13 Plan was confirmed on February 8, 1982. The Plan called for ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a contested discharge proceeding and the matter under consideration is the dischargeability, vel non, of a debt allegedly owed by Anthony S. Koszuth, a Debtor currently involved in a Chapter 7 liquidation case. The claim of non-dis-chargeability is addressed to a debt allegedly owed to Sun Life Insurance Co. of America (Sun Life), the Plaintiff...
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MEMORANDUM AND ORDER Presently before the court are two cases in which the debtors desire to treat mortgage defaults after judicial sales through Chapter 13 plans. Because the cases vary factually so as to mandate different results, the court will consider both cases together in order to highlight the relevant factual distinctions. I. FACTS OF IN RE LORETTA SMITH Glen E....
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ORDER The above-entitled matter came on for trial by the Court on September 7, 1984, before Margaret A. Mahoney, Judge of Bankruptcy Court. Plaintiff Rea brought suit against Defendant/Debtor Hogard objecting to Defendant’s discharge pursuant to 11 U.S.C. § 727(a)(3) (1982). Defendant counterclaimed for an injunction against Plaintiff and reasonable attorney’s fees. The Court has jurisdic...
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DECISION AND ORDER ON MOTION TO LIFT THE AUTOMATIC STAY Raleigh Davenport filed a petition for relief under Chapter 11 of the Bankruptcy Code (the Code) on August 21, 1981. This Chapter 11 petition was dismissed in November, 1982. Thereafter on May 23, 1983, Mr. Davenport filed a petition for relief under Chapter 13 of the Code, but as with his prior filing, the Chapter 13 petition was dismissed. ...
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OPINION The Chapter 13 Trustee is objecting to the fee charged by the attorney for the debtors as excessive. According to the statement filed pursuant to Rule 2016(b) the debtors have agreed to pay Mr. Green-up a fee of $3,500. It is unclear from the file whether Mr. Greenup has completed his services to these debtors. If he has, the fee appears to be clearly excessive; if he has not, the Court w...
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Gentlemen: This matter arises on the Petition of the Trustee to Require Debtor to Elect Exemptions and Turn Over Surplus. The dispute that the Court has been asked to resolve concerns whether or not all of the debtor’s Individual Retirement Account (IRA), approximately $4,580.00, may be claimed as exempt under Ill.Rev.Stat.1983, ch. 110, par. 12-1001(g)(5). The Illinois legislature, after “op...
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MEMORANDUM OPINION Counting cattle may be a pacifying exercise for small children on long trips, but it makes for poor reading in judicial opinions. Nonetheless, counting cattle — how many there were, who they belonged to, and where they went — is what this opinion is all about. The case takes the form of a creditor’s complaint invoking the most severe noncriminal remedy available against deb...
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MEMORANDUM OPINION On September 5, 1984, this Court entered its order denying Movant, Equitable Life Leasing Corporation f/k/a Equico Lessors, Inc.’s Motion To Compel Debtor To Seek Approval To Assume Or Reject Lease and also conditionally denying its Motion For Relief From Automatic Stay. This motion raised two issues: (a)whether the agreement between the parties is a true leas...
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ORDER DIRECTING THE PARTIES TO SHOW CAUSE IN WRITING WHY TRIAL AND DETERMINATION OF THE ISSUES SHOULD NOT BE REMITTED TO A STATE COURT OF COMPETENT JURISDICTION This is an action in which the plaintiff seeks a judgment for some $60,000.00 which he allegedly loaned to the defendant and a declaration that the same liability is one nondischargeable in bankruptcy as having been created by fraud wit...
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MEMORANDUM OPINION AND DETERMINATION OF ISSUES SUBMITTED UNDER PLAN OF REORGANIZATION On August 26, 1982, Manville Forest Products Corporation, the above-captioned debtor (“MFPC”), filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (“the Code”). MFPC is a wholly owned subsidiary of the Manville Corporation. It is a manufacturer of timber, paper, and other wood pro...
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DECISION AND ORDER This matter is before this court upon a “motion of P.O.B. [“POB”], Inc. For Enforcement of Court Order” filed 14 September 1984 with Memorandum attached and “Memorandum of R.B. Brunemann & Sons, Inc. [“Brunemann”] in Opposition to P.O.B. Inc’s Motion for Enforcement of Court Order” filed 2 October 1984. Disposition of the issues raised can be effected without an ev...
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MEMORANDUM OF DECISION This matter is before the Court on the Trustee’s motion for summary judgment. The facts of this ease are not in dispute. The only issue presented is whether wages which were garnished more than ninety days before the filing of the debtor’s Chapter 7 petition, but upon which no judgment of condemnation was entered should be included in the debtor’s bankruptcy estate....
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MEMORANDUM AND DECISION A motion has been made by the Wyoming County Bank and by the debtor herein to reopen this Court’s Orders of May 2, 1984 and August 21, 1984 because of newly discovered evidence. It should be noted that the Orders arose in a lawsuit between International Harvester Credit Corporation and the debtors. The newly’ discovered evidence is that International Harvester Credit C...
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MEMORANDUM OPINION This case is the continuation of a marital dispute between the parties which resulted in their divorce, an appeal to the North Dakota Supreme Court and finally the commencement of bankruptcy adversary actions against each other. The Debtor, John Allen Seablom, Jr. and his former wife, Carole J. Seablom, were divorced in May 1982 on the ground of irreconcilable differenc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW DISTRIBUTING PROCEEDS OF 1983 CLOVER CROP AND RULING ON CLAIMS The Court on September 12, 1984 tried various pending motions for instructions, to turn over, and to distribute the proceeds of the 1983 clover crop. Julie Colling reported the proceedings. The debtors, Mr. and Mrs. Robert Nor-dyke, are Christmas Valley, Oregon farmers who filed chapter 11 o...
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OPINION Diamond Furnishing Co., Inc. (Diamond) commenced this proceeding by filing a Complaint to recover property of the debt- or against the defendants, Estate of Walter Breymier and Richard Breymier (Breymier). Diamond alleges that prior to the commencement of this case, Walter Breymier purchased from Diamond furniture in the amount of Four Thousand Six Hundred Eighty-Four and 52/100 (...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, Hialeah Hospital, Inc. (“Hialeah”), is a Florida not-for-profit corpora*943tion which owns and operates a 411-bed acute care hospital located in Hialeah, Dade County, Florida. Defendants, Robert A. Schatzman and Justin P. Havee, Co-Trustees of King Memorial Hospital (“Co-Trustees”), are the duly qualified and acting Co-Trustees of King Memorial H...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding commenced with the filing of a complaint by Standard Chartered Bank, PLC (Standard) seeking to determine the dischargeability of a corporate debt personally guaranteed by Julio Klepach and his wife Esther Klepach, the defendants. The Court, having heard the testimony at the trial held on January 18, 1984 and March 16 and 19...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding commenced with the filing of a complaint by Chase Bank International (Chase) seeking to determine the dischargeability of a corporate debt personally guaranteed by Julio Kle-pach and his wife Esther Klepach, the defendants. The Court, having heard the testimony at trial held on January 18, 1984 and March 16 and 19-22, 1984 ...
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MEMORANDUM OPINION Here we consider whether a landlord who takes over and runs a grain elevator no longer operated by his lessee, with no contractual connection between the two beyond the lease, thereby becomes liable under a security agreement reached years earlier by the tenant and a supplier. We hold that the landlord incurs no such liability. A key figure in our analysis is the t...
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MEMORANDUM OPINION Plaintiffs-Debtors (Debtors) seek to recover from Defendant certain amounts, totaling $751.54, which were withheld from their wages just prior to bankruptcy. These withholdings resulted from the service, at the instance of Defendant, of state court garnishment summonses upon the Debtors’ employers. FACTS On November 12, 1981, Defendant obtained a state court judgment agai...
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OPINION In this Chapter 7 case, William Rush (“movant”) has moved the Court to reconsider our Order of May 31, 1984, authorizing the committee of creditors to employ independent counsel. Upon review of the appropriate provisions of the Bankruptcy Code, we find that there is no provision for compensating or reimbursing the expenses of counsel to a creditors’ committee under Chapter 7 of th...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff seeks a determination that he is a beneficiary of the statutory trust which has been established by the Chapter 11 debtor-defendant pursuant to section 206 of the Packers and Stockyards Act of 1921, as amended, 7 U.S.C. § 181 et seq. (“the Act”). The plaintiff is a livestock seller and the debtor is a packer which has not paid...
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MEMORANDUM OPINION In this case, pursuant to the request of the Commonwealth National Bank (“Bank”) for a determination of its secured status, we must determine the relative priorities of the security interests of three creditors in three items of the Chapter 13 debtors’ personal property. 1 The three secured creditors are the Bank, the United States of America, acting through the Farmers Hom...
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MEMORANDUM The trustee seeks to enforce a judgment lien he has acquired by assignment against property purchased from the debtor before bankruptcy. Because the limitation period under Tennessee law for enforcement of this lien has expired and because no provision of the Bankruptcy Code stays or extends the state time requirements, the trustee is barred from enforcing this lien. The f...
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*281 ORDER This matter is before the court on a motion by the defendant, Bradford-White Corporation, to extend the time for filing a notice of appeal pursuant to Rule 8002(c) of the Federal Rules of Bankruptcy Procedure. On consideration of stipulations, briefs of the parties, statement of counsel, and the entire record, this court concludes that the defendant’s motion for an ext...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATING TO THE OWNERSHIP OF CERTAIN PROPERTY Plaintiff Lawrence J. Kaiser, Trustee, by Robins, Zelle, Larson & Kaplan, having filed an Amended Complaint claiming, inter alia, equitable ownership of certain property; and Defendants Sheila Wise, Anthony Wise and American Classic Competition, on their own behalf, having filed a Joint Answer...
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MEMORANDUM DECISION After filing a chapter 11 proceeding, Clo-wards, Inc. entered into several construction contracts to do masonry work. It appears that Clowards, Inc. failed to complete any of the contracts. Clowards, Inc. subsequently converted to a chapter 7 proceeding. The trustee sought to recover the balance of the contract amount in each case and to have each contractor assert its...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT The above-entitled adversary proceeding came on for trial before the undersigned on August 19, 1984. The Plaintiff sought to preclude a discharge in bankruptcy to Defendant under 11 U.S.C. § 727(a)(2)(A). For the reasons cited below, Plaintiff’s cause of action against Defendant succeeds. Facts 1. Defendant is a lic...
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MEMORANDUM OPINION Plaintiff has filed its complaint asking this Court to determine the validity, extent, and priority of certain judicial liens which it claims it has on real property owned by Defendants, Marion Donas Lassiter and Linda Carol Lassiter (Lassiters). These liens arise by virtue of two judgments entered by the Dunklin County, Missouri, Circuit Court on March 10, 1983, in favor of ...
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MEMORANDUM OPINION Plaintiff filed her Complaint seeking (1) relief from the automatic stays under 11 U.S.C. 362(a) in order to obtain certain real and personal property allegedly awarded her by the St. Louis City Circuit Court in its decree dissolving her marriage to Defendant, (2) denial of his discharge for Defendant’s alleged fraudulent conveyance prior to bankruptcy of certain real propert...
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ORDER DENYING POSTBANKRUPTCY INTEREST ON SECURED PORTION OF CLAIMANT’S CLAIM EXCEPT LEGAL INTEREST ON DECLINING BALANCE The claimant timely filed its claim in these chapter 13 proceedings for a total sum of $4,680.85 and asserted in the proof of claim form that its collateral had a value of $4,050.00. Accordingly, the chapter 13 trustee filed an “objection to claim no. 05” on May 10, 1984...
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MEMORANDUM OPINION The issue before us is whether the plaintiffs are entitled to a voluntary dismissal of this adversary proceeding pursuant to Bankruptcy Rule 7041. For the reasons hereinafter given, we shall dismiss the adversary proceeding with prejudice and in accordance with other terms.1 The plaintiffs’ complaint, which initiated this adversary proceeding, essentially claims that a mortgage...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff has filed a “Complaint To Reclaim Property”. The property in question is a modular house which the debtors-defendants purchased from the plaintiff well before they filed their Chapter 1 bankruptcy petition. The debtors and their children have been living in the modular house since well before the debtors filed bankruptcy. The debtors l...
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ORDER This matter is before the court on the plaintiff’s claim that the debtor wrongfully scheduled a 1972 Great Dane 42 foot van as an asset. The plaintiffs allege that they provided the funds for the purchase of the van but that the debtor wrongfully failed to register the title to the van in the plaintiffs’ name. The Chapter 7 trustee, Jane Forbes, has intervened in the case alleging t...
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MEMORANDUM This matter is before the court on cross-motions for summary judgment. The trustee asserts that the defendant, Aladdin Synergetics, Inc., received preferential transfers from the debtor, Tinnell Traffic Services, Inc., in the amount of $14,962.42. The defendant has asserted that the funds it received from the debtor were not property of the debtor but were property of the defen...
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OPINION DENYING SECURED STATUS This matter came before the Court to determine whether the claim of Norwest Financial Alabama, Inc. in the amount of $1,441.30 is a secured claim under Sec. 506(a). The debtors, Mason W. Bonner and Iva J. Bonner filed a petition under Chapter 13 of the Code and a confirmation hearing was held on April 27, 1984. One claim in the amount of $5,778.25 was classified...
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MEMORANDUM OF DECISION Following a Court-authorized Trustee sale of certain of the debtor’s equipment and machinery on May 3, 1984, secured creditors Small Business Administration (“SBA”) and Valley National Bank of Arizona (“Bank”) requested disbursement of sale proceeds. Payment is also requested of proceeds from the Bank’s collection of debtor’s accounts receivable pursuant to an ...
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MEMORANDUM AND ORDER ON DEBTORS’ MOTION TO DISMISS Before the Court is the debtors’ motion to dismiss the non-dischargeability complaint brought by the Ware Co-operative Bank (“Bank”) against the debtors, Leo J. and Sandra M. Smith (“debtors”), on the grounds that the complaint was not timely filed. FACTS On September 26, 1983, the debtors filed a joint petition under Chapter 7 ...
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MEMORANDUM OPINION Plaintiff requests a determination that certain indebtedness totaling $465.20 and owed it by Defendant is non-dischargeable under 11 U.S.C. § 523(a)(2). Plaintiff, in general, alleges that Debtor falsely and fraudulently represented that he owned a certain 1977 Oldsmobile 98 Regency automobile in order to induce Plaintiff to lend him approximately $630.00. FACTS These are the ra...
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DECISION The complaint objects to discharge alleging intent to defraud creditors, transfer or removal or concealment of property within one year before and also after the date of filing the petition. Also alleged was knowingly and fraudulently making false oath and account concerning the nature, amount and value of property. The answer denied those allegations. A “Pre-Trial Statement”, signed by a...
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MEMORANDUM Plaintiff Comprehensive Accounting Corp., holder of the largest unsecured claim against the estate, objects to discharge of the debtor. See 41 B.R. 259. Plaintiff asserts discharge should be denied pursuant to 11 U.S.C.A. §§ 727(a)(2), 727(a)(3), 727(a)(4)(A), and 727(a)(5) (1979). 1 *267 Though conceding the omission of an automobile from his schedule of as...
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MEMORANDUM AND ORDER Filed in 1982 as a business reorganization, this case was converted to a chapter 7 liquidation on March 13, 1984. Before conversion, the debtor (Catamount), a Vermont corporation, operated a fabrics manufacturing plant in Bennington, Vermont. The instant matter is before the court on the motion of Tubular Textile Machinery (Tube-Tex) for relief from stay with res...
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ORDER This matter coming before the Court at the hearing on confirmation of Debtor’s-Fifth Amended Plan of Reorganization, thrice modified, and upon certain other matters arising in connection therewith, including, inter alia, the Joint Application for Approval of Settlement filed by Debtor and others, the Application of Debenture-holders for Leave to Amend their Ballots to Vot...
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ORDER The dispute here involves the malpractice liability of three accounting firms. It is before the court on the debtor’s (“Witte”) request that the court enjoin Bruce C. Moats and Houston Fabricating, Inc. (“Houston”) from naming the debtor and Fox & Co. as defendants in a malpractice suit filed in Texas. This determination is necessary in the bankruptcy proceeding because Fox holds funds due ...
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MEMORANDUM DECISION This matter is before the Court on the motion for relief from stay filed by the Hillbilly Ranch, Inc., (“Hillbilly Ranch”) seeking a determination that the seven-day all alcoholic beverage cafe and common victualler’s license (“liquor license”) owned by Kathryn and Kenneth Wible (“the Debtors”) is Hillbilly Ranch’s collateral or, in the alternative, relief from stay so that ...
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MEMORANDUM OPINION This matter came before the Court on the motion to avoid a judicial lien filed by the debtors Earl C. Allen and Eva Mae Allen. As grounds for this motion, they stated that their homestead is exempt from the property of the estate pursuant to 11 U.S.C. 522(b)(1), 11 U.S.C. 522(d) and N.M. S.A. § 42-10-9 in the amount of $27,500.00. They placed a total value on the real propert...
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MEMORANDUM DECISION Two creditors in this case, Southwestern Drilling Company and Southwestern Drilling Management Company, have moved to postpone the debtor’s discharge for consideration of whether they moved timely to complain concerning dischargeability of their debt. Rule 4007(c) of the Federal Rules of Bankruptcy Procedure allows that a complaint pursuant to 11 U.S.C. § 523(c) must be fi...
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OPINION The issue at bench is whether we should approve the settlement of a controversy involving a limited partnership, of which the debtor is the general partner, over the objection of certain of the limited partners. For the reasons stated herein, we will overrule the objection and approve the settlement. The facts of the case are as follows: 1 Neshaminy Plaza Associates (“NPA”) and Fide...
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OPINION The predominant issue in the controversy before us is whether we should grant a motion filed by the defendant, PTC Corporation (“PTC”), to dismiss a complaint for tortious interference with contractual relations filed by the debtor. For the reasons expressed herein, we will enter an order denying PTC’s motion. The facts of this case, viewed in the light most favorable to the ...
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MEMORANDUM AND ORDER The Bank of America National Trust & Savings Association filed a motion to modify the automatic stay so that it could enforce its security interest in one 1977 Piper Navajo Chieftain aircraft, serial no. 31-77752143, F.A.A. registration no. N27313. An evidentiary hearing has not been held but the matter is before the court on the motion of the Bank, supported by affid...
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MEMORANDUM OPINION THIS IS a Chapter 11 case and the matter under consideration is an objection by the Debtor, CSY Yacht Corporation (CSY) to claim number 72 filed by Alan R. Jaegar and Katherine Jaegar (Jaegars). The claim under challenge was filed as a priority, claim in the amount of $900 and as secured in the amount of $39,100. CSY does not object to the priority claim asserted under § 507(a)(...
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ORDER The issue raised before us is whether we should grant a motion to recuse ourselves from hearing matters involving a creditor of the debtor, which creditor is also an employee of this court. We will grant the motion because the creditor’s thoughtless actions have raised the specter of impropriety. The facts of this vexatious affair are as follows:1 The petition for reorganization under chapte...
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*924 OPINION Wilmington Trust Company (“plaintiff”) seeks summary judgment on its complaint to determine dischargeability of a debt. For the reasons stated therein, we find that the plaintiff is not entitled to summary judgment as a matter of law. Therefore, the request for summary judgment is denied and the matter will be set for trial. FACTS 1 . The plaintiff ...
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MEMORANDUM ON DISMISSAL OF HARVEY PROBBER, INC. OF NEW YORK AND HARVED REALTY CORP. CHAPTER ll’s On August 16, 1984, Harvey Probber, Inc. (New York) (“Probber NY”), Harvey Probber, Inc. (Massachusetts) (“Probber MA”), and Harved Realty Corp. (“Harved”), filed Chapter 11 petitions in this Court. Probber MA., a wholly owned subsidiary of Probber NY, is a manufacturer of business/office furn...
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OPINION and ORDER The above debtors move to enforce the automatic stay to enjoin the State of Ohio from continuing a state action instituted after the debtors filed their Chapter 11 petitions. Debtors move pursuant to § 362 of the Bankruptcy Code or, in the alternative, pursuant to the Court’s equitable powers under § 105. In addition, in the event that enforcement of the automatic stay i...
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*616 MEMORANDUM AND DECISION This is a motion by the debtor to amend his schedules to claim the New York exemptions rather than the federal exemptions, to include the debtor’s interest in a John Hancock Bond Fund, Inc., to designate the bond fund as cash and, therefore, exempt property under New York State Debtor and Creditor Law § 283(2), and to include a 1977 automobile valued at $1,525. Th...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motion for Summary Judgment filed by the Defendant, Shirley Agen, in this adversary action. Each of the parties have filed their arguments and have had the opportunity to respond to the arguments asserted by opposing counsel. The Court has reviewed those arguments as well as the entire record in this case. Based upon that ...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motion for Summary Judgment filed by the Plaintiff in this adversary action. Each of the parties have filed their arguments and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed these arguments as well as the entire record in the case. Based upon that review and for...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for Summary Judgment filed by the Plaintiff in this adversary action. This Motion was filed pursuant to an agreement between the parties that leave to file such a Motion would be granted. The parties also agreed upon a schedule for the filing of the Motion and the response to the Motion. Although the Plaintiff has fi...
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SUPPLEMENTAL FINDINGS AND CONCLUSION PURSUANT TO REMAND OF MARCH 2, 1984 This matter arises out of a complaint filed by the Bank of Virginia (“the Bank”), creditor herein, to determine the discharge-ability of a debt under section 523(a)(2)(A) of the Bankruptcy Reform Act of 1978 (“the Code”). Debtor filed her petition in bankruptcy under Chapter 7 of the Code on January 28, 1983. Th...
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MEMORANDUM OPINION This proceeding comes on the motion of North Shore National Bank of Chicago (hereinafter “North Shore”), for a turnover of funds held by Bernard Chaitman (hereinafter “Trustee”) as Trustee for the estate of Rich Supply House, Inc. (hereinafter “corporate debtor”). The Trustee responds by requesting an order directing North Shore to first proceed against nonestate proper...
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Findings of Fact, Conclusions of Law, and ORDER re Interest in Payment-In-Kind Entitlements, with Memorandum This matter comes before the Court on a Complaint for relief from the stay and declaratory judgment by plaintiff, Sandage Real Estate, Inc., a cross claim and counterclaim by Norwest Bank of Marion and *966 counterclaim by Debtors-in-Possession (Debtors). By previous O...
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MEMORANDUM This is a proceeding in which the Coats State Bank objects to the debtors’ repeated attempts to change their claimed homestead exemption in order to include property that subsequent to filing they have discovered to be most valuable. The Coats State Bank is represented by Dale L. Somers of Eidson, Lewis, Porter & Haynes, Topeka, Kansas, and the debtors are represented by Dan E. Turner,...
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MEMORANDUM DECISION The trustee seeks a determination that the security interest of Rockport National Bank in the debtor’s automobile is unper-fected. 1 Although it admits that neither *604 Maine nor Massachusetts has issued a certificate of title for the Mercedes and that no UCC financing statement has been filed in either state, the bank contends that its interes...
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ORDER This matter came before the court on the debtor’s objection to the claim filed by the Veterans Administration pursuant to a mortgage guaranty. The basis for the debtor's objection was that the mortgage securing the debt had been foreclosed by the mortgagee under Minnesota law and *322the debt was released pursuant to the Minnesota Statute 580.23. The Veterans Administration asserts that its ...
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ORDER ALLOWING TRUSTEE’S OBJECTION IN PART This matter came on for hearing on the motion of the Trustee objecting to Debtor’s claimed exemption of property from the debtor’s estate under M.S.A. 550.37, Subd. 24 relating to disability income payments. For the reasons outlined below, I am partially sustaining and partially denying the Trustee’s objection. FACTS Robert L. Bari (Deb...
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This matter came before the Court for hearing August 28, 1984, on Defendant’s motion to dismiss the adversary proceeding for Plaintiff’s failure to timely file its complaint objecting to dischargeability pursuant to Rule 4007(c) of the Rules of Bankruptcy Procedure. Based on the file, records, briefs and arguments of counsel, the Court makes the following Order pursuant to the Rules of Bankruptcy...
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DECISION AND ORDER ON MOTION TO LIFT AUTOMATIC STAY On April 15, 1982, Saxon Industries, Inc. (Saxon) filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. Saxon is presently operating its business as debtor-in-possession. 11 U.S.C. § 1107. There are a total of 39 different actions pending against Saxon and/or Fox & Company, a partnership of certified...
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*918 DECISION AND ORDER ON TRUSTEE’S MOTION TO COMPEL TESTIMONY On March 21, 1980, Candor Diamond Corp. (Candor) entered into a factoring agreement with John P. Maguire & Co., Inc. (Maguire) in which Maguire agreed to purchase Candor’s accounts receivable and advance monies to Candor in anticipation of the collection of the purchased accounts receivable. As collateral for these a...
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MEMORANDUM OPINION The Trustee, on February 13, 1984, filed a Complaint to determine the validity of security interests in stored grain held by Commodity Credit Corporation (CCC). The case was submitted for decision on stipulated facts which, as material, are recited below: FINDINGS OF FACT On October 1, 1981, the Debtor entered into two grain storage loan agreements with CCC denoted as Loa...
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ORDER Presently before the Court is General Discount Corporation’s [GDC] August 17, 1984, motion that debtor, O’Danny Boy, Inc., be held in contempt for failure to follow its confirmed Chapter 11 Plan of Reorganization. The Court heard this matter on September 6, 1984. The attorneys for both parties stressed the urgency for an immediate decision; the Court requested briefs within one week (by Sept...
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MEMORANDUM OPINION In all of these three consolidated adversary proceedings, the Chapter 7 debtors-plaintiffs have filed, pursuant to section 524(a) of the Bankruptcy Code, 11 U.S.C. § 524(a), and 42 U.S.C. § 1983, complaints seeking, inter alia, money judgments against the defendant for the amount of money which the defendant has withheld from the plaintiffs’ Supplemental Secu...
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DECISION AND ORDER Alexander Grant & Company (“Grant”) has moved to quash an order of this Court dated July 6, 1984 which, pursuant to Bankruptcy Rule 2004 authorized the examination of Grant by Dan River, Inc. (“Dan River”), a creditor of Mittco, Inc. (“debtor”) and also authorized Dan River to examine and copy Grant’s working papers used in the preparation of the debtor’s audited financ...
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ORDER NOW ON this 3rd day of August, 1984, comes on for hearing three pending motions in the above-styled adversary proceeding. The plaintiff, Mcllroy Bank, appeared by and through its attorney, Hon. William Gibson of Fayetteville; the trustee, Hon. Middleton P. Ray, Jr., appeared pro se; and the debtor appeared in person and by and through his attorney, Hon. Richard Crockett. ...
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MEMORANDUM OF DECISION Plaintiff, Takeuchi Mfg. (U.S.), Ltd. (“Takeuchi”) commenced this adversary proceeding by filing a complaint against the defendant, Lester Fields (“Fields”), seeking to have Fields’ debt to Takeuchi declared nondischargeable. Following discovery and three amendments to the complaint, trial of this adversary proceeding was held on July 24, 1984, on Takeuchi’s Third A...
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MEMORANDUM DECISION The trustee seeks a determination that the debtors’ interest in an employer-financed stock bonus and profit-sharing retirement trust is non-exemptible property of the estate. The debtors, the employer, and the bank which administers the funds all oppose the relief sought by the trustee. After a careful review of the trust, the statutes, and the relevant case law, the c...
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MEMORANDUM OPINION This case is before the court on a complaint by the attorney for the Chapter 11 debtor-in-possession seeking to impose a charge upon a secured creditor under § 506(c) of the Bankruptcy Code on the basis that the secured creditor “benefited” from these proceedings within the meaning of that statutory provision. The debtor’s attorney has filed a fee application claiming a fee i...
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DECISION ON ORDER TO SHOW CAUSE FOR A DECLARATORY JUDGMENT The debtor, Capitol-York Construction Corp. (“Capitol-York”) seeks a declaratory judgment that the respondent, Lynnhaven Marine Construction, Inc. (“Lynnhaven”) is prohibited by the automatic stay under Code § 362 from continuing litigation under the Miller Act, 40 U.S.C. §§ 270a-270d, against Capitol-York’s surety in the District Court...
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MEMORANDUM ON TRUSTEE’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS The question before the court is whether certain records pertaining to property of the debtor’s estate are within the protective scope of the Fifth Amendment privilege against self-incrimination. I An order for relief under chapter 7 was entered against the debtor on August 22, 1983, pursuant to an involuntary petition. 11 U.S...
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MEMORANDUM AND ORDER ON MOTION FOR APPOINTMENT OF TRUSTEE This matter is before the court upon the application of John Yervant, the debtor’s lessor, for the appointment of a trustee under Code § 1104(a). 1 I. On January 25, 1984, BAJ Corporation filed a petition for relief under Chapter 11 of the Bankruptcy Code and since that date has been operating its restaurant busin...
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*868 MEMORANDUM OPINION AND ORDER I. This action comes on a motion by Dr. Lawrence B. Lagrotteria (hereinafter “debtor”) to dismiss the complaint of Elizabeth A. Vaccariello and the class of plaintiffs which she represents (hereinafter “plaintiffs”). The plaintiffs seek a determination that their claims against the debt- or are nondischargeable pursuant to Section 523 of the Bankruptcy Code...
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DECISION & ORDER Mortgagee, Flushing Federal Savings and Loan (“Flushing Federal”), objects to the confirmation of debtor’s Chapter 13 plan on the ground that debtor has not filed his petition in good faith as required under 11 U.S.C. § 1325(a)(3). Flushing Federal contends that debtor’s failure to make post-petition mortgage payments and the fact that the instant petition is debtor’s thi...
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DECISION AND ORDER ON APPLICATION TO MODIFY AUTOMATIC STAY On August 3,1984, Onio’s Italian Restaurant (Onio’s) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code (the Code), 11 U.S.C. § 1101 et seq., and has continued as a debtor in possession. 11 U.S.C. § 1107. In February, 1976, Anthony Ippolito, President of Onio’s, entered into an agreement with Vinellis, Inc...
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MEMORANDUM OF OPINION This matter came on for hearing on the complaint of the trustee to recover a preference, the answer of defendants, the evidence, stipulations and memoranda of the trustee and defendants. The Court finds from the evidence and pleadings that: 1. Debtors, William T. Faller and Michelle Faller, borrowed money from Equi-bank pursuant to a written agreement dated...
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ORDER RE: ATTORNEY’S FEES, COSTS AND DAMAGES THIS MATTER came on for trial on the Counterclaim of Advance Press, the alleged debtor herein, for damages and attorney’s fees as the result of filing an Involuntary Petition. These damages are sought against the three petitioning creditors, Leonard T. Dorsch, Douglas T. Smith and Wanda Wallace. The Involuntary Petition under Chapter 7 of ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 11 case and the matter under consideration is á contract action brought by the Plaintiff, Key Petroleum, Inc. (Key), against 6804 East, Inc. (Debtor). The above-styled adversary proceeding was commenced by a two count complaint filed by Key. Key seeks specific performance of a lease and marketing agreement entered int...
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OPINION The question presented is whether a contract for the sale of realty is personal property within the meaning of Article 9 of the Uniform Commercial Code. The parties have stipulated to the following facts: 1. The D.J. Maltese Company, Inc. (debtor) is engaged in the business of building and remodeling commercial and residential properties. Prior to bankruptcy, the debtor financed these ope...
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ORDER CONFIRMING THE APPOINTMENT OF HOWARD MALMON AS TRUSTEE The above-entitled matter came on for hearing before the undersigned on Septem *46 ber 14, 1984, on the motion of the creditor, Melvin Evans, for resolution of a dispute involving election of the trustee in this Chapter 7 liquidation proceeding. The question arises under 11 U.S.C. § 702 of the Bankruptcy Code. For the reasons outlin...
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ORDER Introduction The present dispute comes to the Court on the defendant’s motion for judgment on the pleadings. For the reasons detailed below, the motion is denied. Background On 17 December 1982 the plaintiff, trustee of the Chapter 7 estate of R&T Roofing Structures & Commercial Framing, Inc., filed a complaint seeking the return of some $18,000 in cash levied...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO RECONSIDER ORDER This matter is before the court on the motion of the debtor, Josephine Hockaday Love, to reconsider an order entered on June 14, 1984 avoiding the judicial lien of Rhodes Exterminating Company pursuant to 11 U.S.C. § 522(f)(1). The order of June 14,1984 avoided the judicial lien only to the extent that the lien impairs the de...
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MEMORANDUM OPINION This adversary action was commenced on April 13, 1984, by the Estate of A.R. Levis (“Levis”) as an action for declaratory judgment against InterFirst Bank Dallas (“In-terFirst”) and Blankinship-Cooper, Inc. (“Debtor”), to determine the effect of separate security agreements of the debtor with Levis and InterFirst which both purport to perfect liens in Shawne Bug, an Ame...
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REPORT AND RECOMMENDATION THAT ADVERSARY PROCEEDING BE REMANDED The plaintiffs’ motion to remand this action to state court was filed on July 29, 1984. The motion is to be decided under 28 U.S.C. § 1452 which became effective July 10, 1984: 1 (a) A party may remove any claim or cause of action other than a proceeding before the United States Tax Court or a civil action by a g...
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MEMORANDUM AND ORDER ON FEE APPLICATIONS Before the Court are the fee applications of counsel, for services rendered in connection with the suit entitled Daniel M. Glos-band (later amended to Robert Robinson (successor trustee)) as he is Trustee in Bankruptcy of the D. C. Sullivan & Co., Inc. v. Watts Detective Agency, Inc., Consolidated Service Corporation, Christopher P...
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OPINION TAXES — LIABILITY—OFFICERS OF CORPORATION Robert J. Helder (Helder), the debtor herein, has filed a complaint for an order determining that the single business tax is not a liability of his. The facts are agreed to by counsel and this adversary proceeding was submitted on briefs. The State of Michigan, Department of Treasury, Revenue Division, filed a proof of claim which, inter alia, clai...
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OPINION SECURITY INTERESTS — PERFECTION—MOTOR VEHICLES The trustee filed a complaint praying for an order determining that the security interest of International Harvester Credit Corporation (International) be held to be invalid. On April 29, 1981, Wilmer L. Cossairt and Carolyn A. Cossairt, debtors, purchased a new 1981 International Harvester truck tractor bearing serial number 1HTL23270BGA1869...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff has filed, pursuant to section 523(a)(2)(B) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(B), a complaint objecting to the discharge of the Chapter 7 debtor’s debt to the plaintiff in the amount of $2,729.00. For the reasons hereinafter given, we shall deny the relief requested in the plaintiff’s complaint and find the debt to...
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MEMORANDUM AND ORDER In this Chapter 11 case, the plaintiffs have, pursuant to section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), filed a complaint seeking relief from the automatic stay as to the debtor’s real property.1 The evidence shows that the plaintiffs hold a first mortgage against the debtor’s real property and that the amount owed pursuant to the mortgage is in excess of $293,00...
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*312MEMORANDUM OPINION In this adversary proceeding, the plaintiff has filed, pursuant to section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), a complaint for relief from the automatic stay as to the Chapter 13 debtor’s real property, upon which the plaintiff holds a first and second mortgage. The debtor opposes the complaint, but the Trustee does not. For the reasons hereinafter given, we s...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff has filed, pursuant to section 523(a)(2)(A) and (B) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A) and (B), a complaint objecting to the discharge of the debtors’ joint debt to the plaintiff in the amount of $80,000.00. For the reasons hereinafter given,- we find that the debt is nondischargeable as to Francesco Scardino, but is disc...
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MEMORANDUM OPINION The issue in this case is whether the debtor-in-possession may avoid the impact of a “Covenant Not to Compete” by rejecting his partnership agreement as an execu-tory contract under 11 U.S.C. § 365. Briefly, Dr. Norquist, an orthopedist, entered into a partnership agreement with the Rockwood Clinic (the Clinic) in Spokane, Washington. His partnership agreement prov...
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MEMORANDUM OPINION This Chapter 13 case is before the court upon a Motion by the Arlington Trust Company for Relief from the Automatic Stay to permit foreclosure of their mortgage upon a residential property. The unique factor in the case is that there is not now, and never has been, any debtor-creditor relationship between Arlington and the Chapter 13 debtors. The property in question previo...
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DECISION AND ORDER The debtor objects to the claim of National Bank of New York City (“National Bank”) on the ground that the debtor is not indebted to National Bank. In addition, the debtor moves pursuant to 11 U.S.C. § 506(d) for avoidance of the judgment lien obtained against the debtor’s real property, on the ground that the amount due upon the first and second mortgages is greater th...
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MEMORANDUM AND ORDER This matter is before the court on the petition of Theodore J. Tardie, mortgagee, for an order restraining the debtor from cutting and removing timber on the mortgaged property and requiring the debtor to pay over to Tardie as mortgagee all money received from the sale of timber cut by the debtor. FACTS Ulric Tremblay and Holly Tremblay, husband and wife, filed a petiti...
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MEMORANDUM OPINION Trustees of the United Mine Workers of America Health and Retirement Fund (“Fund”), on March 5, 1982 filed a complaint in this court against the Debtor and Trustee seeking allowance of a priority administrative claim of funds due the Fund under the National Bituminous Coal Wage Agreement of 1978 and 1981. The essential facts are not disputed. In 1979, Elkins Energy Corporat...
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*546 FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER AVOIDING LIEN Debtors Philip Jerome Nowak and Kristen Kay Nowak, by Attorney Robert F. Dopkins, having requested the avoidance of a lien; and a hearing having been held; and the Debtors appearing by counsel; and The Bank of Edgar appearing by Attorney Thomas W. Batterman of Terwilliger, Wak-een, Piehler, Conway & Klingberg, S.C.;...
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ORDER DENYING MOTION TO AVOID LIEN At the continued hearing on the debtor’s motion to avoid a nonpossessory, nonpur-chase-money security interest in the debt- or’s 1980 Mazda 626 automobile pursuant to 11 U.S.C. § 522(f)(2)(A), on August 29, 1984, at Gadsden, Alabama, with only the debtor’s attorney, the attorney for the First State Bank of Altoona, and the trustee present before the Court, the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW L. CHANDLER WATSON, Jr., Bankruptcy Judge. Introduction At the hearing held before the Court at Gadsden, Alabama, on August 31, 1983, upon an objection by the trustee to the debtors’ claim of exempt property, the attorney for the debtors and the trustee were present before the Court, and upon hearing statements by both counsel, the bankruptcy judge finds a...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW L. CHANDLER WATSON, Jr., Bankruptcy Judge. Introduction The above-styled adversary proceeding was commenced by the debtor to request that sanctions be ordered against the defendant for violation of the automatic stay of 11 U.S.C. § 362 and to determine the dischargeability of a debt owed by the debtor to the debtor’s former spouse. The ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE was initiated by the filing of an adversary proceeding by the Creditors’ Committee of HOSTELLERIE d’AR-GENTEUIL, INC., Debtor-in-Possession, against SEYMOUR MANDEL and MARTA CUAN MANDEL, his wife, on July 11, 1983. Upon agreement of the parties, the Trustee was substituted for the Creditors’ Committee as the Party Plaintiff. Trial of this adversar...
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MEMORANDUM OPINION ON COMPLAINT TO AVOID TRANSFER; TO RECOVER PROPERTY; AND TO DETERMINE THE EXTENT AND VALIDITY OF LIEN STATEMENT OF THE CASE On April 15, 1983, Edward Harold Thomas, f/d/b/a Rabbithead Farms, Debtor, filed with this Court his petition under Chapter 7 of the United States Bankruptcy Code. On May 17, 1983, Debtor filed a “Complaint to Avoid Transfer; to Recover Proper...
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MEMORANDUM OPINION AND ORDER I This action comes on a motion by Forest Park National Bank (hereinafter “plaintiff”) pursuant to Bankruptcy Rule 7001 to determine the extent of its security interest in the property owned by Martin Grinding & Machine Works, Inc. (hereinafter “defendant”). The defendant seeks to dismiss the complaint of the plaintiff for failure to state a claim upon wh...
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MEMORANDUM OPINION The question before the court is whether the debtor, Joseph Morris, may assert a homestead exemption in proceeds from the sale of his residence, which are held by the defendants in this action, Castlen Realty Co. and Mary Hunt. Although counsel have raised a number of interesting and potentially complex points of law, the decisive issue is rather simple: Did the debtor have a re...
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MEMORANDUM OF DECISION This matter comes before the court on the complaint of a debtor-in-possession to compel a turnover of property allegedly seized two weeks before debtor filed its Chapter 11 petition. Debtor asserts that the property or its proceeds are necessary to ensure the continued operation of the business. The main issue is whether the subject property is “property of the esta...
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MEMORANDUM OPINION AND ORDER This matter is before the Court pursuant to plaintiff’s Complaint that the debt between the parties be adjudged nondis-ehargeable or that defendant should be denied a discharge. Count I objects to the discharge of the debtor under 11 U.S.C. § 727 of the Bankruptcy Code based upon the debtor’s intention to hinder, delay or defraud his creditors, making a false oath, ...
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MEMORANDUM DECISION AND ORDER This matter came on for hearing on defendants’ motion to dismiss plaintiff’s amended complaint for failure to state a claim upon which relief can be granted, and motion for more definite statement. The parties have extensively briefed the matter and the issues are ripe for resolution. A brief statement of explanatory background is proper. Sometime in 197...
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OPINION The issue at bench is whether an agency action denying a debtor’s mortgage assignment application withstands judicial review. The question is presented on the cross-motions of the debtor and the agency for summary judgment under Fed.R.Civ.P. 56 which is incorporated in this proceeding through Bankruptcy Rule 7056. For the reasons stated herein, we conclude that the agency determination was...
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MEMORANDUM The issue is whether an application for notation of lien on the title to an automobile which is properly filed but subsequently lost due to error by the filing officials of the State of Tennessee, nevertheless perfects a security interest superior to the trustee in bankruptcy. Because Tennessee law requires both filing and notation of the lien on an automobile title ...
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MEMORANDUM AND ORDER At issue is whether the Tennessee homestead exemption statute, Tenn. Code Ann. § 26-2-301 (1980), affords the debtor a homestead exemption in the debtor’s interest in property held as a tenant in common. I The debtor and her daughter own as tenants in common a house and lot at 336 Clinchfield Avenue, Erwin, Tennessee. When she filed her chapter 7 petition in...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a complaint by Richmond Metropolitan Hospital (“Hospital”) against the debtor, Ernest L. Hazelwood, Jr., (“Hazel-wood”) to determine the dischargeability of a debt arising out of medical services provided by the Hospital to the debtor from August 16 to August 24, 1983. After considering the evidence adduced at trial a...
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MEMORANDUM OPINION This case comes before the Court on defendant’s Motion to Dismiss for Failure to State a Claim upon which Relief can be Granted. R.Bankr.P. 7012(b); Fed.R.Civ.P. 12(b)(6). Plaintiff-debtor filed a petition for relief on June 7, 1983 and, thereafter, a Motion to Set Aside Lien. Arguments were heard and post-hearing briefs were filed. The issue is whether defendant’s lien...
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FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER DENYING MOTION TO DISMISS Pigeon Falls State Bank, by Frederic J. Berns, S.C., having filed a Creditor’s Motion to Dismiss Chapter 11 Bankruptcy Proceeding; and a hearing having been held; and the Movant appearing by Attorney Frederic J. Berns; and the Debtors appearing by Attorney John 0. Ward; and Farm Supply Company appearing by Attorney Pe...
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MEMORANDUM ON NON-DISCHARGEABILITY OF A DEBT This matter was tried by the Court on August 8, 1984. Debtor/defendant having filed both a Memorandum of Law in Support of Discharge and a Supplemental Trial Memorandum, the Court makes the following findings of fact and rulings of law. Mr. Hill, the debtor/defendant, was accepted as a freshman to the University of New Hampshire in 1980. O...
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MEMORANDUM DENYING RECONSIDERATION AND REOPENING This matter most recently came before the Court on counsel’s Motion for Reconsideration, for an Amendment of the Findings or, in the Alternative, for a New Trial on the Denial of the Reclamation Claims based upon the failure to prove insolvency. 1 Hearing was held on August 30, 1984. Counsel conceded that “bankruptcy,” or “balanc...
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RULING BY THE COURT This matter came on to be heard and was heard by the undersigned Bankruptcy Judge on the State of North Carolina’s motion for a ruling by the court that the automatic stay provisions of 11 U.S.C. § 362(a)(1) and (2) do not operate to stay the State from commencing a civil injunc-tive suit authorized by State law in order to abate violations of State environmental pollu...
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ORDER ON SECURED STATUS OF MIDWEST DIAMOND SETTERS The matter before the Court is the trustee’s objection to the validity and extent of the common law artisan’s lien claimed by Midwest Diamond Setters (Midwest). For the reasons set out below, the Court finds that Midwest is secured by such a lien for $100.00, but that the balance of its claim is unsecured. Findings of Fact The debtor in this co...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This Chapter XI Bankruptcy Act case is before the Court pursuant to a Motion to Enforce Settlement Agreement and For Authority to Compromise Claims and Execute Releases. This dispute recently passed its fourth anniversary. It has been dredged through numerous proceedings in a number of courts, both state and federal, with no resolution of t...
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MEMORANDUM AND ORDER This matter came on for hearing pursuant to a Motion by the Debtors, Ronald N. Booth and Debra L. Booth, to have Gaetan A. Yelle and Solange W. Yelle, adjudged in *198 contempt for violation of the automatic stay prescribed by § 362 of the Bankruptcy Code. The original Motion was directed against both Gaetan A. Yelle and Solange W. Yelle, but at the hearing held on August...
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MEMORANDUM AND ORDER On November 2, 1983, the Court issued a Memorandum and Order (“Memorandum”) dismissing (without prejudice) the application of GATX Terminals Corp. (“GATX”) seeking an order setting a date by which the debtor, GHR Energy Corp. (“GHR” or “debtor”), must either assume or reject certain leases (“leases”), pursuant to 11 U.S.C. § 365(d)(2) and requiring that the debtor pay...
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OPINION The question in the dispute before us is whether we should grant the trustee’s motion to enforce a subpoena duces tecum against the debtor’s accountant, — whereby the trustee seeks to determine the extent of the debtor’s estate, — notwithstanding an accountant-client privilege provided by state law. For the reasons expressed herein we conclude that the privilege is no bar to the account...
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OPINION The issue at bench is whether we should grant a trustee’s motion for reconsideration of our order of October 8, 1982, which authorized, without notice or hearing, the incurring of a postpetition debt in exchange for the granting of a lien and priority status superior to adminstrative claims on this postpetition debt as well as on all prepetition debts of the lending creditor. For the re...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DISMISSING COMPLAINT Brian Hagen, by Stoltz Law Office, having filed a Complaint to Determine Dis-chargeability of Debt and Debtors; and Jon and Annette Alexander, by Zappen, Meissner, Oestreicher, Craig & Hayden, having filed an Answer; and a trial having been held; and the Plaintiff appearing in person and by Attorney Alan J. Stroh-schein; ...
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MEMORANDUM AND ORDER This matter is before the court on the plaintiffs motion for summary judgment on her adversary complaint to except from discharge a certain debt. Having considered the pleadings, memoranda and exhibits filed in this matter, the court hereby concludes that the debt is in the nature of a property settlement and, therefore, the court hereby orders that debt to be dis-chargeabl...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ENTRY ON COMPLAINT TO RECOVER PREFERENTIAL TRANSFER This matter came on before the court on June 11, 1984 for hearing upon the Complaint to Recover Preferential Transfer filed on February 10, 1984 by Edward B. Hopper, II, Trustee in Bankruptcy for Franklin D. Conard, the Debtor. Summons and Notice of Trial issued on March 5, 1984. Notice of the Ju...
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MEMORANDUM AND ORDER TO DISMISS BANKRUPTCY PROCEEDING FOR LACK OF SUBJECT MATTER JURISDICTION STATEMENT OF FACTS Michigan Master Health Plan, Inc., is a health maintenance organization organized and operating under applicable state statutes and regulations of the state of Michigan. The organization provides health care and services to subscribers by physicians, nurses, and other heal...
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FINDINGS AND CONCLUSIONS This matter was presented to the Court as an application by the municipal debtor to release a garnishment, and for authority to use the funds so released for the operation of essential city services. The City and the creditors responsible for the garnishment appeared by their respective attorneys at an expedited hearing on September 7, 1984 and presented certain testimo...
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*857 DECISION ON APPLICATION FOR DISCHARGE OF STUDENT LOAN The debtor, Andreas Panteli, seeks a determination that his student loans are dis-chargeable because repayment will impose an undue hardship in accordance with the standards prescribed under 11 U.S.C. § 523(a)(8). FINDINGS OF FACT 1. The debtor filed his voluntary petition for relief under Chapter 7 of the Bankr...
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DECISION AND ORDER ON MOTION FOR ORDER SETTLING DISPUTE OVER PROOF OF CLAIM On August 29, 1977, Michael D. Bray (Bray) filed a proof of claim in the amount of $6,918.12 in the then pending bankruptcy case of Iota Industries, Inc. (Iota) on behalf of the law partnership of Armstrong & Bray for unpaid legal services the firm had performed for Iota. Bray was the attorney responsible for Iota...
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MEMORANDUM AND ORDER Norwest Bank — Jamestown filed with the Court on June 19, 1984, an objection to *35 the exemptions claimed by the Debtors in the above-entitled bankruptcy proceeding. The Debtors filed their response to the Bank’s objection, requesting that the objection be dismissed for lack of proper service or, in the alternative, that the Court determine that the exem...
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MEMORANDUM AND ORDER Before the Court is a Motion for Summary Judgment brought by the Trustee on August 30, 1984. The Trustee on March 30, 1984, brought the instant Complaint against two agencies of the United States of America under the strong-arm provisions of section 544 of the Bankruptcy Code. By the instant Motion, the Trustee seeks summary judgment in his favor on his cause of action agai...
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OPINION The issue presented to us is whether we should direct the turnover of an automobile where a secured creditor repossessed the vehicle shortly before the filing of the debt- or’s petition for the repayment of its debts under chapter 13 of the Bankruptcy Code (“the Code”). For the reasons expressed below we will deny the complaint for turnover. The facts of this case are as foll...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS (1) FOR A HEARING ON THE MERITS AND (2) CONTINUING STAY IN EFFECT Michael A. Jeracek, by Bosshard & Associates, having filed a Request for Relief from Automatic Stay; and a hearing having been held; and Mr. Jiracek appearing by Attorney John H. Schwab, Jr.; and the Debtor making a special appearance by Attorney Donald J. Harman of Donald J. Har-man,...
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MEMORANDUM OPINION ON APPLICATION FOR REIMBURSEMENT OF EXPENSES BY MEMBERS OF OFFICIAL UNSECURED CREDITORS COMMITTEE Various creditors have applied for reimbursement from the estate as administrative expenses of their out-of-pocket expenses relating to the performance of their duties as part of the official unsecured creditors committee. Section 503 of the Code deals with the allowance of...
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MEMORANDUM AND ORDER This adversary proceeding was heard on cross motions for summary judgment filed by the plaintiffs, Landvest Associates and Landvest II, and the defendant, Marion Bryant Owens, pursuant to Bankruptcy Rule 7056. Rule 7056 provides that F.R.Civ.P. 56, applies in adversary proceedings. Rule 56 authorizes summary judgment when “... the pleadings, depositions, answers to interrog...
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MEMORANDUM OPINION Lynchburg Postal Credit Union, Inc. (the Credit Union), the holder of a claim against the debtors secured by a judgment lien against real property of the debtors, asserts entitlement to postpetition interest under 11 U.S.C. § 506(b) and objects to confirmation of the debtors’ Chapter 13 plan based on 11 U.S.C. § 1325(a)(5)(B)(ii). FACTS The facts of this case ...
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MEMORANDUM AND ORDER This matter came before the court on the debtor’s (Norsom) motion for summary judgment on its objection to a claim filed by Norman Paradise (Paradise). Having carefully considered all pleadings, memo-randa, affidavits and exhibits filed in this matter and having heard oral argument, the court hereby grants Norsom’s motion for summary judgment to deny Paradise’s claim....
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MEMORANDUM AND ORDER This matter came before the court on the trustee’s objection to an exemption claimed by the debtor herein (“Huff”). The property which the debtor seeks to exempt is a fund held by the Illinois State Board of Investment which exists by virtue of Huff’s contributions to a deferred compensation plan. For reasons set forth in this opinion, the court holds that the fund is...
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The debtor-plaintiff, Printree, Ltd., (“Printree”) seeks damages of $67,597.20 representing lost profits plus the price paid for cloth it purchased from defendant Tribute Knits, Inc. (“Tribute”) and was allegedly stored with defendant Mullís Inc., d/b/a Midpoint Storage (“Midpoint”).1 Midpoint, *879having defaulted, the claim against Tribute was tried before the Court. I Printree purchases raw fab...
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DECISION & ORDER The Board of Trade of Wholesale Seafood Merchants (the “Board”), an association of wholesale seafood businesses, requests an order of this Court resolving an election dispute with the United States Trustee who refuses to certify its election as trustee of this Chapter 7 estate. I In September 1983, Kam Kuo Seafood Corporation (“Debtor”) was having difficulty mee...
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MEMORANDUM OPINION In this Chapter 7 case, the husband and wife debtors have filed, pursuant to § 522(f)(1) of the Bankruptcy Code, 11 U.S.C. § 522(f)(1), an application to avoid the judicial lien of the American Bank and Trust Co. of Pa. (“American Bank”). American Bank opposes the application. For the reasons hereinafter given, we shall deny the application.1 The judicial lien in question stems ...
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MEMORANDUM AND ORDER In this Chapter 13 case, the plaintiffs have filed, pursuant to section 362(d) of the Bankruptcy Code, 11 U.S.C. 362(d), a complaint to modify the automatic stay as to real property of the debtors on which the plaintiff holds a long-term mortgage and as to the debtors’ stock in the Federal Land Bank Association which the plaintiff holds as collateral in addition to its mortgag...
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MEMORANDUM AND ORDER In this Chapter 11 case, the American Bank and Trust Company of Pennsylvania (“American Bank”) has, pursuant to section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), brought a motion for relief from the automatic stay as to the debtors’ real property.1 American Bank has a mortgage *277and four judgment liens against said property. As of the date of the hearing on this ma...
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MEMORANDUM OPINION The matter presently before the Court is a Complaint to Avoid Additional Lien on Real Estate Held to be Exempt Property, wherein Debtors allege as follows. Prior to the filing of their petition under Chapter *850 7 of the Bankruptcy Code, Debtors transferred their interest in certain real estate located at 533 W. 20th Street, Tyrone, Blair County, Pennsylvania to a Trustee ...
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MEMORANDUM OPINION The matter presently before the Court is Trustee’s Objection to the Petition of James W. Burns and Gladys Jeanne Burns, hereinafter referred to as “Burns”, for Abandonment filed at Bankruptcy Number 83-40. Related thereto is Trustee’s Complaint to Determine the Secured Status of Burns filed at Adversary Number 83-967. This opinion is dispositive of both matters. Among the issues...
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MEMORANDUM OPINION The matter presently before the Court is an Objection to Discharge of Debtor; and Petition to Dismiss Objection to Discharge of Debtor filed by Debtor in response thereto. In its objection, movant alleges that Debtor made false representations and/or committed actual fraud upon mov-*854ant for the express purpose of obtaining money in violation of 11 U.S.C. § 523(a)(2). Movant f...
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MEMORANDUM OPINION The matter presently before the Court is a motion for relief from the automatic stay or for adequate protection and other legal and equitable relief filed on behalf of Warner/Elektra/Atlantic Corporation. In its motion, Plaintiff alleges as follows. Plaintiff supplied Debtor on account pre-re-corded tapes and phonograph records for purposes of distribution and resale by aff...
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MEMORANDUM OPINION This case is before the court upon the “Motion by Trustee to Vacate Stay and to *873 Proceed with Hearing on Final Accounting” filed by Thomas A. Hickey, Esq., the trustee in bankruptcy in this proceeding, on April 12, 1982 before the then Bankruptcy Judge, the honorable Joseph J. Betley. Since Judge Betley was not able to rule upon this matter prior to his death, a “Motion...
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MEMORANDUM AND PROPOSED ORDER The plaintiff-debtor, Carlene May Mead, brought this action to determine, inter alia, the dischargeability of an order of restitution entered by the Superior Court of the State of Connecticut for the Judicial District of New Haven as a condition of probation in connection with her conviction for issuing bad checks. BACKGROUND On April 26,...
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MEMORANDUM OPINION AND ORDER ISSUE: May the Debtor include as members of a single class of unsecured creditors under its plan of reorganization persons entitled to workers’ compensation benefits? *791 The Debtor, U.S. Truck Company, Inc., filed an amended plan of reorganization with the Court on September 7, 1983. The plan provides for a payment of 55% of the allowed unsecur...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER APPOINTING TRUSTEE Introduction On June 18, 1982, U.S. Truck Company, Inc., a Michigan corporation, (Debtor) filed a Chapter 11 petition with this Court. On August 1, 1984, the Official Unsecured Creditors’ Committee (Committee) filed an application to appoint a trustee; on August 10, 1984, the Committee filed a supporting memoran...
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MEMORANDUM OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION A hearing on the application to reaffirm the indebtedness to General Motors Acceptance Corporation (GMAC) was held on April 9, 1984. The application was denied at that hearing; a written order was entered on April 23, 1984. This motion followed. I. Facts The debtor filed a Chapter 7 petition on January 7, 19...
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ORDER The Debtors, Leland and Karen Wolsky, filed for relief under Chapter 11 of the Bankruptcy Code on February 17, 1983. First Bank of North Dakota — Jamestown, a creditor in these proceedings, filed with the Court on August 13, 1984, a motion for relief from the automatic stay pursuant to section 362(d) of the Bankruptcy Code. The Unsecured Creditors Committee filed an objection to Fir...
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DECISION AND ORDER RE ADEQUATE PROTECTION This voluntary Chapter 11 case was filed August 10, 1984. Debtor is in a branch of the construction business having to do with excavation and earth moving. The operation of the business obviously is totally dependent upon excavation and earth moving equipment owned by debtor in which Thorp Discount, Inc. of Ohio (hereafter “creditor”) has a securi...
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MEMORANDUM DECISION AND ORDER These adversary complaints have been consolidated solely for purposes of this order. On December 22, 1983, defendant, Kenneth Ensminger, filed his petition in bankruptcy. The first meeting of creditors pursuant to 11 U.S.C. § 341 was scheduled for February 7, 1984. The last day for filing an objection to discharge pursuant to 11 U.S.C. § 523(c) or § 727 was April...
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ORDER The Citizens Bank of Lawton has moved to extend the time to object to the debtor’s discharge pursuant to 11 U.S.C. § 727(a) or to determine dischargeability of its debt under 11 U.S.C. § 523(c). The case has been converted from one under Chapter 11 to a case under Chapter 7. The motion is timely pursuant to Bankruptcy Rules 4004(a) and 4007(c) in that it was made within 60 days follow...
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AGREED ORDER This matter came before the court for a hearing on the motion of the Central States Southeast and Southwest Areas Pension Fund, hereinafter “the Pension Fund,” for relief from this court’s order entered on April 26, 1984, requiring the Pension Fund to pay the debtor’s $100.00 per month benefit directly to the trustee in this Chapter 13 bankruptcy proceeding. Pursuant to the state...
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MEMORANDUM OPINION AND ORDER This action comes on a motion of David Baranski et al. (hereinafter “Baranski plaintiffs”) to modify the automatic stay pursuant to Section 362(d) of the Bankruptcy Code. 11 U.S.C. § 362(d) (Supp. Y. 1981). The Baranski plaintiffs ask that the stay be modified so that they may proceed with their district court action captioned David Baranski, et al. v. R...
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MEMORANDUM OPINION The sole issue before the court on a stipulated record is whether cash shortages which developed in a real estate escrow account were the product of an “embezzlement” within the meaning of 11 U.S.C. § 523(a)(4), thus rendering the resulting debt nondischargeable in bankruptcy. *266 The issue involves a question of federal law 1 which is within t...
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MEMORANDUM OPINION At issue before this Court is the Mov-ant’s Motion For Relief From Automatic Stay Or For Adequate Protection. Movant seeks relief from the automatic stays under 11 U.S.C. 362(a) so that it may foreclose its deeds of trust on certain real estate belonging to the Debtor and his non-filing spouse. The relevant facts underlying this motion are the following: 1. On Jujl*3 29, 1977, ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE OF NONDISCHARGEABILITY OF DEFENDANTS’ INDEBTEDNESS TO PLAINTIFF IN THE SUM OF $1,997.07 AND JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM FROM DEFENDANTS This is an action in which the plaintiff complains that the defendants willfully and *637 maliciously converted a portion of the value of an automobile in which i...
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ORDER CONSOLIDATING ACTIONS FOR THE PURPOSE OF DECISION AND FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DIRECTING DEFENDANTS TO TURN OVER TO BANKRUPTCY ESTATE A CERTAIN BEQUEST These are two adversary actions filed against the debtors (1) by the trustee to *29 compel the turnover to the estate in bankruptcy of a bequest to which the debtor Hilda Miller Lewis becam...
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ORDER This case came before the court for a hearing on August 27, 1984 pursuant to a Notice of Intended Sale filed by the trustee on June 5, 1984, and an objection thereto filed June 27, 1984 by the debtor pro se, on his own behalf, and also purporting to be on behalf of Joanna Claire Settle. The notice of sale required any objections to be filed by June 25, 1984, but the court overruled the trus...
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DECISION ON DEBTORS’ MOTIONS TO AVOID JUDICIAL LIENS The debtors, Albert and Joan Danella, filed a joint Chapter 7 petition on March 22, 1984. In these motions, pursuant to the lien avoidance provisions of 11 U.S.C. § 522(f), they seek to avoid three judicial liens on their home. The objecting lien-holders, Kenney Builder Products Co., Robert LaPrade, and United Builders Supply, Inc., agr...
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MEMORANDUM DECISION AND JUDGMENT ON MOTIONS FOR SUMMARY JUDGMENT SUMMARY OF LITIGATION Bankruptcy proceedings were initiated when the Cornells filed a joint petition for *861 relief under Chapter 7 of the Bankruptcy Code on October 20, 1983. The plaintiffs had filed a Washington State Court complaint against the Cornells on June 24, 1983, in Pend Oreille County Superior ...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for hearing upon a Motion to Dismiss filed by School Pictures of Mississippi, Inc. (School Pictures), a creditor of Newton Alfred Winn (Debtor), in the above-styled Chapter 11 case. School Pictures seeks a dismissal of the Chapter 11 case based on the contention that the Petition for Relief was not filed in good faith and is merely an attempt ...
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MEMORANDUM DECISION This proceeding involves an issue which occasionally arises in bankruptcy cases but seldom creates as much animosity as it has in this relatively small Chapter 7 case. The trustee seeks to enjoin or disqualify Robert G. Frazier, who represents the debtor, from serving as counsel in this bankruptcy case to Stephen A. Freeman, sole shareholder of the debtor, individually, and At...
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MEMORANDUM OPINION At issue before this Court is the Motion to Dismiss filed on behalf of Defendant, Sue Ann Shelton. The complaint filed herein essentially alleges that the two defendants, with the intent to deceive, obtained a loan from Plaintiff by a use of a materially false financial statement and, therefore, the loan *548 should be determined to be non-dischargea-ble under 11 U.S.C. 5...
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MEMORANDUM OPINION Plaintiff seeks an order reforming a certain deed of trust dated June 25, 1980, in its favor encumbering a tract of real estate belonging to the Debtor. The portion of the deed of trust which it wishes to reform is the legal description which Plaintiff concedes to be erroneous. The Trustee on the other hand, prays to the Court to avoid the lien of this deed of trust because...
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MEMORANDUM OPINION The matter presently before the Court is a Motion to Vacate Order Appointing Attorneys for the Creditors’ Committee and for a Hearing Pursuant to Bankruptcy Rule 2019(b) to Determine Whether the Attorneys Appointed for the Creditors Committee Have Failed to Disclose All of Their Connections with the Debtor or Have Failed to Comply With Any Other Provisions of Rule 2019 and Ot...
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MEMORANDUM OPINION Two actions are before this court, both dealing with the disposition of the debtor’s yacht, the Jan Pamela II. The debtor, Powers Aero Marine, filed a complaint to compel turnover of the yacht, pursuant to 11 U.S.C. Section 543, currently being held in drydock, on January 16, 1984. Subsequently, a secured lender, the First National Bank of Oklahoma City (Bank) filed a motion ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS (1) GRANTING DEBTOR’S MOTION IN PART (2) AWARDING ATTORNEYS’ FEES (3) FOR HEARING FORTHWITH Debtor Joseph Goetz, by Kelley, Weber, Pietz & Slater, S.C., having filed a Motion for Orders (a) disqualifying Attorney Thomas F. Mallery from representing Citizens Bank & Trust Company (the Bank) in this proceeding and (b) permitting any lifting of the auto...
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FINDINGS, CONCLUSIONS AND ORDER ON MOTION FOR PERMANENT INJUNCTION The matter before the Court is a motion for permanent injunction filed by the debt- or, Storm Archer Allman, and directed against the defendants, Merit Brass Company (Merit Brass) and John T. Corrigan, Cuyahoga County Prosecutor (Prosecutor), Cuyahoga County, Ohio. The debtor requests this Court to permanently enjoin Merit...
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MEMORANDUM AND PROPOSED ORDER The plaintiff-debtor, Carolyn Robinson, brought this action to determine, inter alia, the dischargeability of an order of restitution entered by the Superior Court of the State of Connecticut as a condition of probation in connection with the plaintiff’s conviction for larceny in the second degree. BACKGROUND On July 28, 1980, the plaintiff pleaded guilty to ...
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ORDER DENYING MOTION TO REMOVE UNITED STATES TRUST COMPANY OF NEW YORK, THE BANK OF NEW YORK, AND IRVING TRUST COMPANY AS INDENTURE TRUSTEES FROM THE COMMITTEE OF UNSECURED CREDITORS This matter has come before the Court on the motion of First Investors Management Company, Inc., Citibank, N.A., and Merrill Lynch Asset Management, all members of the unsecured creditors’ committee for The Charter...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for hearing upon a Motion to Dismiss filed by Cliffton Management Corporation, a creditor of Port Richey Service Co., Inc., the Debtor in the above-styled Chapter 11 case. Cliffton seeks the entry of an order dismissing the Chapter 11 case pursuant to § 1112(b) of the Bankruptcy Code based on the contention that the petition was not filed in good fa...
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ORDER This matter came before the court on the motion of the John Deere Company (“John Deere”) for an order determining that the automatic stay imposed by 11 U.S.C. *836 § 362(a) terminated by operation of law pursuant to 11 U.S.C. § 362(e). Based on the file and arguments of counsel, the Court makes the following order pursuant to the Rules of Bankruptcy Procedure. ...
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ORDER REMANDING AND TRANSFERRING CASE TO DISTRICT COURT This matter came on for hearing on the motion of Rosholt Farmers Cooperative *534 Elevator Company (Rosholt) for an order “remanding this matter to the Federal District Court for the District of Minnesota for disposition.” Louis J. McCoy appeared on behalf of Rosholt. Paul J. Scheerer appeared on behalf of the plaintiffs...
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MEMORANDUM OPINION Plaintiff, Alice Proctor, (Alice) seeks a determination that various debts owed her or her minor children by Defendant/Debt- or, Rick Proctor (Rick), her former spouse, and that arise from the parties’ dissolution decree and a subsequent modification of that decree are non-dischargeable under 11 U.S.C. § 523(a)(5). At the hearing, the parties submitted the factual case upon...
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MEMORANDUM OPINION The question is whether the sum of $6,400 payable to Debtor as a loss payee under a fire insurance policy is non-exempt property of the above bankruptcy estate or whether it is property not subject to bankruptcy administration either because it is not property of the said estate or because it is property of the said estate but is exempt. These are the pertinent fac...
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MEMORANDUM DECISION & ORDER On January 10, 1983, Beth E. Barnett (“Debtor”) filed a petition under Chapter 13 of the Bankruptcy Code. Her schedule of creditors listed thirteen creditors owed a total of $31,054.76. Among the creditors scheduled was the following: “Peoples Bank of Unity 301 Unity Center Rd. Pittsburgh, PA 15239 (Re: Pa. Higher Ed Asst Agency) # 13095, st...
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ORDER DENYING MOTION FOR RELIEF FROM STAY THIS MATTER came before the Court on April 24, 1984, upon the Motion of A.M. June, Inc., for relief from stay or for adequate protection. (CP # 3a) The debtor’s business is primarily in operating video games. The issue in this case comes down to whether or not the creditor has a valid, perfected security interest in the cash revenues generated by the ...
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ORDER: (1) DENYING MOTION FOR RECONSIDERATION OF CLAIM, (2) GRANTING MOTION TO ALTER OR AMEND ORDER, AND (3) GRANTING ISSUANCE OF SUPPLEMENTAL ORDER On May 14, 1984, a Memorandum Decision and Order was filed by the Court concerning the objections of the Trustee for KIKI, Ltd., (“Debtor”) to the claims and judgments of the Marcia-Neal Wester-velt Revocable Trust (“Westervelt Trust”), against Debto...
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ORDER DENYING APPLICATION TO AUTHORIZE EMPLOYMENT OF REAL ESTATE BROKER The instant Chapter 11 proceeding was filed on May 3, 1982. The major asset of debtor’s estate being a hotel property on leasehold land in the Waikiki area, the proceedings in this case have revolved almost exclusively around efforts to sell the property. An offer to purchase the property was presented to the creditor...
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ORDER re Thorp Credit Inc. Motion to Lift Stay; Mutual of New York Motion to Lift Stay; First Security Bank & Trust Co. of Charles City Motion to Lift Stay On the first day of August, 1984, the hearing on Contested Nos. 593, 656 and 690 was held after proper notice. Present at said hearing were: Daniel Ernst, Attorney for the Debtor; Julie Johnson McLean, Attorney for Mutual of New Yo...
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MEMORANDUM OPINION AND RECOMMENDATION RE: JURISDICTION AND ABSTENTION JURISDICTION This is an action commenced May 24, 1982, by the Chapter 11 Debtor-in-Possession against a company which is otherwise a stranger to these proceedings for a money judgment on an alleged account receivable. The defendant counterclaimed and demanded a jury trial 1 . The defend...
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*528 DECISION AND ORDER This Court has for determination in the Chapter 13 proceedings commenced by the above-named debtor, the issue as to whether the debtor has an interest in certain real property owned jointly by him and his wife, who is not a debtor in these proceedings, and which property was sold at a foreclosure sale prior to the filing of the petition in bankruptcy. It i...
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MEMORANDUM DECISION The above-entitled matter is before the Court on Home Federal Savings and Loan Association’s (Home Federal’s) motion to reconsider an order confirming the debtors’ chapter 13 plan. Because the time within *840 which a motion to reconsider could properly be brought lapsed long before Home Federal requested such relief, the Court will construe the motion to ...
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MEMORANDUM DECISION The above-entitled matter is before the Court on the application of First Bank Gettysburg for attorney’s fees under 11 U.S.C. § 506(b). The debtors and the United States Trustee have filed objections. Section 506(b) of the Bankruptcy Code allows an oversecured creditor to add reasonable fees, among other things, to the value of its claim if the agreement under which the cl...
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MEMORANDUM DECISION The Court held a hearing on Creditor Connecticut Mutual Life Insurance Company’s (Connecticut Mutual’s) disclosure statement on March 12, 1984. Both the First National Bank of Minneapolis (First Bank) and the Unsecured Creditors Committee (Creditors Committee), through their counsel, filed objections arguing that the disclosure statement contemplated a plan which violated 11...
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MEMORANDUM DECISION The above-entitled matter is before the Court on Norwest Bank of Madison’s (bank’s) objection to the debtor’s claim of homestead exemption. The debtor requested a hearing on the bank’s objection and the same was held on April 10, 1984. At the close of the hearing, the Court took the matter under advisement, reserving ruling until both parties filed memorandums of law. ...
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MEMORANDUM DECISION There is an adage in the legal business that once a case gets convoluted, it continues that way and probably gets worse. The above-entitled case certainly falls within that category. Somehow, the Court finds itself in the position of deciding the validity, priority, and extent of two competing liens when neither party has filed a complaint to commence such an action. See ...
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MEMORANDUM OPINION This case was referred back to this Court by Judge Robert M. Hill, United States District Court for the Northern District of Texas on May 8,1984. The issues raised in Plaintiffs’, U.S. Steel Companies, et al., (hereinafter referred to as U.S. Steel Companies) motion to vacate or, in the alternative, to modify order granting withdrawal of reference and complaint for injunctive...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for trial on the Plaintiff/Debtor’s Amended Complaint to Avoid Preferential Transfer and to Return Exempt Funds to the Bankruptcy Estate. On June 4, 1984, the Plaintiff (“the Debt- or”) filed a petition in bankruptcy under Chapter 13. On December 7, 1982, the Debtor obtained a loan from the Defendant (“Bank”) in the sum of $2,268.80, which wa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on to be heard upon a Complaint filed by A. JAY CRISTOL, Trustee of the above-captioned Bankruptcy Estate (TRUSTEE) and a Complaint filed by a Creditor, EAGLE NATIONAL BANK, (BANK), objecting to the Debtors’ Discharge pursuant to 11 U.S.C. § 727(a)(2), which section requires the denial of discharge to debtors who fraudulently transfer thei...
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ORDER AND MEMORANDUM DECISION THIS MATTER came before the Court upon the Motion of CONDOMINIUM ASSOCIATION OF PLAZA TOWERS SOUTH, INC., Debtor’s Motion to Reject Unexpired Lease. For the reasons set forth below, the Motion is granted. BACKGROUND The CONDOMINIUM ASSOCIATION OF PLAZA TOWERS SOUTH, INC. (hereinafter PLAZA TOWERS) commenced this proceeding by filing a Chapter 11 Pet...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This cause came on for hearing before this Court on January 11, 1984, January 25, 1984, April 25, 1984, and June 12, 1984, before the undersigned Judge, pursuant to Creditor/Movant Honolulu Transport & Warehouse Corporation’s (hereinafter referred to as “Movant”) Motion to Set Aside Sale of Trustee filed herein on December 30, 1983. Movant wa...
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ORDER This action is before the Court on the plaintiff’s motion to withdraw reference of this matter to the Bankruptcy Court. At the time plaintiff moved for withdrawal of reference, the Bankruptcy Court, pursuant to the Emergency Rules for the Continued Operation of the Bankruptcy Court, Rule (d)(1)(D), was unable to conduct a jury trial. These Rules are now superceded by the Bankruptcy Amendm...
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MEMORANDUM The Motion To Dismiss this Chapter 7 case filed by the Commonwealth of Massachusetts Department of Public Health (“the Commonwealth”) on August 7, 1984 came before me for emergency hearing at the request of the Commonwealth on August 8, 1984. Notice of the emergency hearing and copies of the Motion were provided to the Chapter 7 Trustee, his counsel, the United States Trustee, debtor...
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OPINION This matter is before the court on cross-motions for summary judgment. Formed Tubes, Inc. (debtor) manufactured and sold tubing for industrial purposes. Armco, Inc. was a regular supplier of steel to Formed Tubes. To insure payment for all the steel to be delivered to Formed Tubes, Armco insisted that Formed Tubes have a bank issue two irrevocable letters of credit, with Armco, Inc. a...
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DECISION ON COMPLAINT OF TRUSTEE FOR AN ORDER ANNULLING AUTOMATIC STAY The trustee in bankruptcy seeks an order annulling a bankruptcy stay so that its alleged violation may not be used against him by a mortgagee who was allegedly wiped out by an in rem tax foreclosure sale. The defendant mortgagee, a corporation whose president is the bankrupt and whose stock is owned by ...
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On June 8, 1984, Elegant Merchandising, Inc. filed a voluntary petition under Chapter 11 of the Bankruptcy Code (Code). 11 U.S.C. 1101 et seq. On July 24, 1984, by order to show cause and application, the debtor sought to enjoin Republic National Bank of New York (Republic) from demanding payment or performance from Bank Leumi Trust Company of New York (Bank Leumi) under Bank Leumi’s Letter o...
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OPINION AND ORDER This matter is before the Court upon the debtors’/plaintiffs’ complaint to avoid the defendant’s nonpossessory non-purchase-money lien under § 522(f)(2) of the Bankruptcy Code. In light of the construction and effect given to the relevant statutory provisions in this case, the Court holds that defendant’s lien should be avoided. 11 U.S.C. § 522(f) provides, in relev...
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MEMORANDUM OPINION This matter comes before the Court upon the filing by the debtor herein, Johnnie Mae Minniefield, of a motion to reopen her bankruptcy case for the purpose of amending her petition so as to schedule the University of Alabama Health Services Foundation, Department of Anesthesiology, as a creditor. Based upon the motion, attached affidavit, and applicable case law, the Co...
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ORDER Two attorneys, from different law firms frequently engaged in bankruptcy practice before this Court, have received a citation of contempt, the imposition of a fine, as well as a loss of fees for handling their clients’ case in two different cases. In each instance, the conduct meriting contempt was the filing of a Chapter 13 case to prevent foreclosure of a residence through the aid...
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OPINION Before us is the trustee’s complaint for the avoidance of certain alleged fraudulent transfers and the subordination of certain debts. The issue presently confronting us is whether we should grant a motion filed by several of the defendants for an order dismissing three of the trustee’s four causes of action. For the reasons stated herein we will deny the motion. To the exten...
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DECISION AND ORDER ALLOWING CLAIM FOR ADMINISTRATIVE RENT International Storage Corporation, the Chapter 11 debtor in this ease, has objected to the administrative rent claim filed by Candarend Investment on the ground that it was improperly calculated. International Storage maintains that because it rejected its real estate lease of Candarend’s property its administrative rent should be ...
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MEMORANDUM OF DECISION This matter came to trial before this Court on the Trustee’s complaint to have an unrecorded transfer of real estate declared null and void pursuant to 11 U.S.C. Sect. 544(a). This case illustrates the often unforseen difficulties which may be encountered in “creative financing” schemes. The issue to be decided is whether the possession of the disputed property by th...
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REPORT AND RECOMMENDATION THAT THE MOTION FOR RECONSIDERATION BE GRANTED On April 20, 1984, an Order Confirming Plan of Reorganization was entered herein, after hearing before the Bankruptcy Court on March 26, 1984 on confirmation of a plan of reorganization proposed by Armstrong Produce, Ltd. During said hearing, objection to the proposed plan was raised by Tai Hing Co., Inc., but was rejected...
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FINDINGS OF FACT Pelican Production Credit Association filed this proceeding, on April 10, 1984, to void a transfer made prior to the initial filing of this bankruptcy proceeding by the Schexnyder family. This transfer was made by Mid-State Elevator Company, Inc., on behalf of the Schexnyder family, for the amount of $7,927.34, which amount is reflective of the payment for storage of beans on the...
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MEMORANDUM AND ORDER ON OBJECTION TO PRIORITY WAGE CLAIMS 69a, ET AL. The debtor objected to the allowance of claims Nos. 69a, 106, 133, 154, 155, 162a, 165, 175, 189, 190, 191, 216, 249, 251, 252, 253, 256, 257, 263, 271, 272, 283, 294, 312, 326, 328, 329, 333, 341a, 349, 371, 390, 427, 439 and 456, both as to priority status and as to amount. The objection will be sustained as to amount and o...
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MEMORANDUM OPINION AND ORDER By Complaint filed September 16, 1982, the Trustee brought an action against the Defendants seeking to recover two rent payments as constituting preferential transfers pursuant to section 547 of the Code. The Defendants have taken the position that the payments were intended by the Defendants as well as the Debtor to be contemporaneous exchanges for new value or, in...
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MEMORANDUM OPINION This matter came before the Court for determination on motion by G & C Con *828 struction Corp. (“G & C”) requesting this Court to abstain from hearing and to remand to the Circuit Court of King George County, Virginia two separate but related cases. Both cases have heretofore been filed in state court but were removed to this Court upon the debtor’s Applic...
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MEMORANDUM OPINION AND JUDGMENT The above-entitled matter came on for hearing before The Honorable Lawrence Ollason, Bankruptcy Judge, on the complaint of Wayne P. Marsh as trustee for the above-named estate. The trustee moved for summary judgment claiming that a writ of garnishment obtained prior to ninety (90) days before the filing of bankruptcy amounts to a preferential transfer ...
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MEMORANDUM AND ORDER This matter came before the court on the debtor’s (“Datair”) motion for summary judgment on its application to have the court determine the secured position and value of the claim of the First Bank of Oak Park (“The Bank”). Additionally, the Bank has filed a motion to convert this Chapter 11 case to a Chapter 7 and a motion to lift the automatic stay. Although those m...
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MEMORANDUM OPINION AND ORDER Findings of Fact 1. The plaintiff had his son deliver his 1971 Discoverer motor home (motor home) to the defendant C.O.P. Bomar Corporation’s (Bomar) service center on October 1, 1980. 2. The only repairs needed to be made at the time of delivery to Bomar were to the motor home’s brakes. 3. Within a few days of delivery, the plaintiff authorized the service manager,...
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MEMORANDUM OPINION This matter came before the Court for confirmation of the debtor’s Chapter 13 plan and to hear the objection of Citizens Bank to the confirmation of the plan. At the hearing on confirmation Citizens Bank objected on three grounds. First that the debtor had over $100,000.00 in unsecured debt and therefore, was not qualified to be a debtor under Chapter 13. 11 U.S.C. § 109(e)...
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MEMORANDUM AND DECISION The moving party, the debtors herein, filed their petition in bankruptcy on January 16, 1981. Their discharge in bankruptcy was granted May 4, 1982. On May 14, *800 1981, the Industrial Commission of the State of New York entered a judgment in Supreme Court, Monroe County for $3,048.48. On January 13, 1984, the debtors moved to reopen the case. On February 6, 1984, a m...
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OPINION The plaintiff, McCormack Terminal Company, Inc. (“McCormack”), commenced this adversary proceeding on June 11, 1982 by filing a Complaint against F.A. Potts and Co., Inc. (“Potts”), a Chapter 11 debtor which filed its bankruptcy petition on September 11, 1981, and Korea Shipping Corporation. 1 The gravamen of the Complaint is that Potts defaulted under an Agreement betw...
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MEMORANDUM OPINION In this Chapter 13 case, the debtors have filed an application to avoid the security interest of the United States of America, acting through the Farmers Home Administration, pursuant to Section 522(f)(2)(B) of the Bankruptcy Code, 11 U.S.C. § 522(f)(2)(B). The United States has filed an objection to the granting of the debtors’ application, alleging sovereign immunity as a defe...
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The plaintiff, First Bank N.A. (“Bank”), filed a complaint to have its debt declared nondischargeable under 11 U.S.C. § 523(a)(2)(A) on the ground that Lawrence Eaton (“Eaton”), the debtor, falsely implied he had a right to pledge several diamonds as additional security thereby causing the Bank to forbear from calling its demand loans. For the reasons that follow, the court finds that the debt is...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of the Debtors, Franklin Cail and Rosemary Cail, to Dismiss the Complaint of Bill Doran Co. to Determine the Dischargeability of a Debt Under Section 523 of the Bankruptcy Code. The Debtors are represented by Attorney Joseph Olsen. The Plaintiff is represented by Attorney John Olson. The Debtors filed a Chapter 11 c...
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MEMORANDUM DECISION The trustee objected to a request for payment of administrative expenses filed on October 31, 1983, by Equilease Corporation a company with which the debtor had previously engaged in a tangled business relationship. After hearing, the court concludes that Equilease is entitled to only a *15 minimal amount of its claim as an administrative expense. On ...
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MEMORANDUM OPINION In this case the Plaintiff Debtor-in-Possession is suing its insurer for proceeds of its fire insurance policy after the Plaintiff’s building was destroyed by fire. The Defendant asserts an arson defense. This is a motion by Second National Bank of Saginaw (the Bank) to intervene under F.R.C.P. 24(a)(2) and 24(b). The Bank holds a first mortgage on the destroyed propert...
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*789 OPINION The question we must ultimately decide in the case before us is whether we should direct a creditor to turn over property to the estate. Prior to resolving this dispute we necessarily address, inter alia, questions of the scope of our summary jurisdiction, the statute of limitations and the al-lowability of damages. For the reasons expressed herein we will...
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MEMORANDUM GRANTING RELIEF FROM AUTOMATIC STAY On February 11, 1981, Everett Elkins and Bernadette Elkins (the movants) entered into an agreement of sale with Loy L. King, one of the debtors for the sale of certain real estate located at the corner of Route 194 and Bashoar Road in Union Township, Adams County, Pennsylvania. The agreement called for a total consideration of $26,500 payable $1,000 b...
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*183ORDER ON OBJECTION TO CLAIM THIS IS a Chapter 11 ease commenced by Southern Pump & Supply, Inc. (Debtor) and the matter under consideration is an objection to an unsecured priority tax claim filed by the Internal Revenue Service (IRS). The Debtor seeks to disallow the tax claim on the ground that all indebtedness owed to the IRS has been paid in full. The facts pertinent to this matter as add...
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*240 MEMORANDUM DECISION The trustee filed a complaint for turnover of assets held by the debtor’s credit union. In response, the credit union counterclaimed for relief from the section 362 stay so that it can set-off funds held by the credit union against an overdue loan and, if necessary, notify the debtor of her right to cure. The court concludes that the credit union is entitled to relief...
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ORDER On March 26, 1984, John Deere Leasing Company (John Deere) filed its Motion To Compel Debtors In Possession To Assume Or Reject Leases and on June 25, 1984, *113 filed its Amended Motion To Compel Debtors In Possession To Assume Or Reject Leases. Pursuant to Rule 27 of the Local Rules of this Court, the motion came on for hearing on June 27, 1984, before David P. McDonald, United Stat...
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On May 12, 1982, the Debtors, George and Johnnie Mae White, (the “Whites”) filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On May 19, 1982 Dorothy Eisenberg was appointed Trustee for the Debtor’s estate. The Whites’ major asset was a tavern and restaurant located at 678 Union Avenue in Westbury, New York (the “property”). On August 9, 1983 the court approved the sa...
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*478 MEMORANDUM AND ORDER RE: FINAL ALLOWANCES This matter is before the Court on the final fee applications of the various professionals who have rendered services in these cases. After appropriate notice and hearing, I find as follows: BACKGROUND These proceedings commenced on September 11, 1981, by the filing of voluntary petitions under Chapter 11 by three sepa...
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OPINION This is an action by the trustee to recover alleged preferential payments of $145,-160.50. On March 19, 1981, Advanced Glove Manufacturing Company (debtor) filed a petition under chapter 11 of the Bankruptcy Code. On November 30, 1981, the case was converted to chapter 7 and a trustee appointed. Within ninety days of the filing of the petition in bankruptcy, the debtor paid a...
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*780 MEMORANDUM OPINION Eva E. Tressler is a Chapter 7 debtor. Eugene Tressler, her former husband, is seeking a determination that her debt due him arising out of a Family Court judgment is excepted from discharge. Eva Tressler has counterclaimed to recover $200 from Eugene Tressler which he received under a wage attachment within 90 days preceding the filing of her bankruptcy petition. The ...
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ORDER OF DISMISSAL This voluntary chapter 7 case was filed on July 12, 1984. In accordance with 11 U.S.C. § 341, a meeting of creditors was scheduled for August 20. The debtor's attendance and availability for examination under oath at that hearing is mandatory. § 343. The debtor corporation did not appear through any authorized agent. Instead, a motion was filed by counsel on the hearing date ...
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MEMORANDUM DECISION Plaintiffs ask that a constructive trust be imposed for their benefit as creditors against the assets of the chapter 11 debtor. The predicate for the relief sought is alleged conversion, fraud, breach of fiduciary duty and unjust enrichment. The debtor has answered and counterclaimed seeking avoidance of the asserted lien under 11 U.S.C. § 544. Shawmut Boston Internati...
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FINDINGS OF FACT The Trustee for Clayton Grain Elevator filed a motion to distribute bond proceeds to the parties who had grain stored at the Clayton Grain Elevator, Inc. The funds to be disbursed are to be paid to the parties by the State of Louisiana, Department of Agriculture, which is the holder of a $25,-000.00 bond deposited by Clayton Grain Elevator, Inc., as a condition for obtaining a lic...
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ORDER DENYING CONFIRMATION OF DEBTORS’ PLAN OF REORGANIZATION This matter came before the court for confirmation of debtors’ first amended plan of reorganization. Written objections to confirmation were made by Borg Warner Acceptance Corporation (“Borg Warner”), Federal Land Bank of St. Paul (“FLB”), and Cargill Leasing Corporation (“Car-gill”). Oral objections to confirmation were lodged by Fa...
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ORDER The Debtor filed for relief under Chapter 13 of the Bankruptcy Code on February 27, 1984. The Debtor subsequently filed on April 13, 1984, a Motion to convert the bankruptcy proceeding to a case under Chapter 7 of the Bankruptcy Code. The conversion was ordered, and the Debtor thereafter filed a new set of bankruptcy schedules. The Debtor included within the schedules filed with the...
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OPINION The issues presented in the dispute at bench are whether we should compel a defendant to answer questions at his deposition and whether we should grant motions for protective orders sought on behalf of two deponents of whom discovery has been sought. For the reasons expressed herein we will compel the defendant to answer certain questions and we will deny the two motions for protective ...
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DECISION Raymond Strzyzewski (“plaintiff”) seeks to declare an obligation due to him from the debtor Dorothy Strzyzewski (“defendant”) nondischargeable, pursuant to § 523(a)(2)(A) of the Bankruptcy Code.1 The plaintiff and defendant were married on November 28, 1978. Each party had been married previously. Their marriage has been short, but stormy. It finally culminated, not only in the commenceme...
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ORDER Before the Court is an Objection to Confirmation of the modified plan filed on behalf of the University of Arkansas. A hearing on this matter was held on June 22, 1984. From the evidence presented the Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. The debtor’s plan lists $14,155.12 total debt. Of this amount, there exists no sec...
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MEMORANDUM DECISION Plaintiff seeks an accounting and certain injunctive relief against this chapter 11 debtor, who has answered, and the matter was tried on August 16. The facts are undisputed. The question presented is whether an individual chapter 11 debtor may spend, after filing his petition, any part of his capital assets or any part of his investment income earned from those assets to me...
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MEMORANDUM OF DECISION This matter is before the court for hearing upon a complaint filed by Henry Scho-field Noble, Trustee, and Travelers Indemnity Company, plaintiffs, objecting to the discharge of the debtor, John Luft Renner. The plaintiffs proceed under 11 U.S.C. § 727(a)(2), § 727(a)(3), § 727(a)(4)(A), and § 727(a)(4)(D). The court will limit its discussion to the counts invo...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT The above-captioned matter came on before the undersigned United States Bankruptcy Judge on June 7, 1984, upon cross-Motions for Summary Judgment made by Plaintiffs and Defendant. Upon the parties’ respective Motions, supporting Declarations, and Stipulation of Fact, the arguments of counsel, and all of the other files, records,...
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MEMORANDUM OPINION This matter comes on to be heard upon the complaint to determine the bankruptcy estate’s interest in life insurance proceeds and upon the joint motion for a judgment on the pleadings filed by the plaintiff and the defendant. The material facts are not in dispute. FINDINGS OF FACT 1. George E. Sharik and Janet E. Sharik filed a voluntary Chapter 7 bankrupt...
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MEMORANDUM AND ORDER The present bankruptcy proceeding was commenced by an involuntary petition filed with the Court on August 7, 1981. The Court entered an Order For Relief on August 31, 1981, and Cheryl Ellis was subsequently appointed as Trustee charged with the duties of administering the bankruptcy estate. Ellis filed a Complaint with the Court in the above-entitled adversary proceed...
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Presently before the court is debtor Patrick W. Gray’s Complaint filed on November 30, 1983, requesting a determination that defendants Gail Prater Engesser and the Clark County Welfare Department [Clark County], were in contempt of court for violation of the automatic stay provisions of 11 U.S.C. § 362 and that an obligation owed for child support is dischargeable in bankruptcy pursuant to 11 U....
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In this Old Act case, counsel for the trustee, the firm of Tillinghast, Collins & Graham, has submitted an application for compensation in the amount of $25,000 for services, and $2,843 for expenses. The trustee’s account shows assets of $113,366, and allowed claims of general creditors to-talling $779,124. If this application is allowed as requested, unsecured creditors will receive a 9.4% div...
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MEMORANDUM OPINION An involuntary petition for relief under Chapter 7 of the Bankruptcy Reform Act of 1978 (“the Code”) was filed against the debtor, General Office Furniture Wholesalers, Inc., (“debtor”) on April 8, 1982. 1 A Complaint to Recover Preferential Payments was filed December 6, 1982. The complaint was amended at the December 12,1983 trial to include recovery of pos...
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MEMORANDUM OPINION This case is pending on the motion of the debtor, by counsel, pursuant to 11 U.S.C. § 522(f), to avoid the lien of Credithrift of America on household furnishings of the debtor as a lien that impairs the exemption of the debtor in such property. FINDINGS OF FACT: It appears from the proof of claim filed in the record in behalf of Credithrift of America that sa...
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DECISION AND ORDER ON STATUTE OF LIMITATIONS APPLICABLE TO DEBTOR IN POSSESSION’S PREFERENCE ACTION The issue before the Court, one of apparent first impression in this district, concerns the motion of defendant Sanyo Electric, Inc. (“Sanyo”) to dismiss this Chapter 11 debtor’s complaint in which Korvettes, Inc. (“Korvettes”) seeks to recover for allegedly voidable preferential transfers ...
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DECISION The Court has been asked to determine the validity and priority of certain liens on the personal property of the debtor corporation, Pat Freeman, Inc., dba Tiffany’s Supper Club, in connection with a proposed sale of debtor’s interest by the trustee in bankruptcy. Defendant Stephen W. DeWitt [DeWitt] and the late James L. Freeman [Freeman] were the original officers and shar...
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MEMORANDUM AND ORDER This matter is before the court upon the objection of Townsend Farms, Inc. (the debtor) to the proof of claim (Claim No. 8, Bankruptcy No. 83-01006) filed by Northwest Leasing, Inc. (the creditor) on the grounds that: (1) the proof of claim was not filed timely; and, even if timely, (2) Northwest Leasing, Inc. has failed to prove its claim. This court, agreeing with the debto...
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ORDER This case is before the Court on the objection by the above-named debtor to the claim filed by the General Finance Corporation of Georgia (“General Finance”). Following a hearing on May 24, 1984, this matter was taken under advisement. The claim by General Finance arises from a purchase-money contract executed by the debtor with Hub Motor Company on November 26, 1982 to purchase a 1979 ...
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MEMORANDUM OPINION The sole issue in this case is whether under Kentucky law a properly perfected repairman’s lien on the insurance proceeds from destroyed equipment has priority over an earlier perfected security interest in that equipment. The facts are simple and agreed. In April of 1981, Leasing Service Corporation (LSC) leased a drilling rig to the debtors, Frederick and Barbara Yost, who we...
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MEMORANDUM OPINION AND ORDER In this proceeding Macy's, an unsecured creditor, seeks a determination that its debt is non-dischargeable, alleging that at the time the purchases were made, debtor had no intention of paying for them and thus obtained property and extensions of credit by false pretenses. Debtor made a general denial. The matter was tried. Debtor appeared in person and b...
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MEMORANDUM DECISION AND ORDER The sole question present before the Court is whether the debtor, Emmanuel Stanley Seism (hereinafter “Seism”), should be allowed to reopen his bankruptcy estate for the purpose of listing an additional creditor, Commercial Credit Equipment Corp. (hereinafter “CCEC”), pursuant to 11 U.S.C. § 350(b) and Rule 5010 Fed.R. Bankr.P., infra. Seism’s vo...
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MEMORANDUM OPINION The matter presently before the Court is Debtor’s Petition to Convert from a Chapter 7 to Chapter 13. Based upon the following, the Court is satisfied that the Chapter 13 plan was not proposed in good faith. Accordingly, the petition to convert is denied. On December 30, 1980, Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code. The Statement of Financi...
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MEMORANDUM OPINION The matter presently before the Court is Lessor’s Motion for Relief From Stay wherein it is alleged that Debtor’s lease of commercial premises has expired as a result of Debtor’s failure to timely and effectively exercise its option to renew the leasehold for an additional term. In its motion, Lessor alleges as follows. Debtors entered into a lease dated April 1, 1...
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MEMORANDUM This matter is before the court on the trustee’s objection to the allowance of an administrative claim for accounting services. The issues are: (1) whether the employment arrangement between the trustee and the claimant allowed for the accumulation of unlimited compensable hours; (2) whether the compensation sought is reasonable; and (3) whether the claimant is entitled to reco...
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MEMORANDUM At issue is whether a lien impressed by a state court to secure the debtor’s support obligations under a divorce decree is void under 11 U.S.C.A. § 506(d)(1) (1979) to the extent that the lien purports to secure post-petition alimony payments. I On April 30, 1984, this court entered a memorandum and order holding valid in bankruptcy a lien impressed by a state court u...
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MEMORANDUM AND ORDER ON MOTION OF KAREN LEE WEATHER-LY ELROD FOR RELIEF FROM AUTOMATIC STAY At issue is the effect of a state court injunction, attachment and order pertaining to a real estate investment account held in the debtor’s name. In divorce-related proceedings the state court enjoined the debt- or from transferring funds from the account, attached the account and its proceeds, an...
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MEMORANDUM OPINION AND ORDER This case was converted from Chapter 11 to Chapter 7 and closed as a “no asset” *380 estate. Shortly thereafter the former trustee moved to reopen alleging that he had discovered an allegedly preferential transfer which, if set aside, would realize an asset for the estate. The creditor objects contending that the former trustee is not a party in interest and that ...
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OPINION Facts and Procedural History 1. Roy J. Mosley filed a voluntary petition under Chapter 7 of the Bankruptcy Code on December 8, 1982. This court entered a discharge of the Debtor on April 22, 1983 and the Debtor appeared at the discharge hearing required under section 524(d) of the Bankruptcy Code on June 28, 1983. *182 2. On October 7, 1983, the Trustee file...
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DECISION Citibank (South Dakota), N.A. (“Citibank”), Diners Club, Inc. (“Diners Club”) and Diners Club, Inc. as successor in interest to Carte Blanche Corporation (“Carte Blanche”) (collectively the “Plaintiffs”) filed a complaint against George L. Senty (“Debtor”) on March 4, 1983 to determine whether debts incurred by the debtor and owed to the Plaintiffs should be declared nondischarge...
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DECISION AND ORDER ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT On August 24, 1983, H.K. Stramin (U.S. A.), Inc. (Stramin) filed a voluntary petition under Chapter 11 of-the Bankruptcy Code (Code). Stramin has remained as a debtor in possession pursuant to Section 1102 of the Code. Stramin is a New York corporation having its principal office within New York City. The primary business of S...
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MEMORANDUM AND ORDER The instant matter comes before the Court on the Defendants’ Motion for Abstention under section 1334(c)(2) of the Bankruptcy Amendments and Federal Judgeship Act of 1984. The Motion was filed on August 3, 1984. The new legislation signed into law on July 10, 1984, contained significant amendments aimed at replacing the provisions of the 1978 Bankruptcy Reform Act found u...
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ORDER This matter is before the Court on the motion of the trustee, H. Kenan Timber-lake, for an accounting of the personal property claimed as exempt by the debtor and for a determination of the status of the claim of Central Bank of the South (hereinafter referred to as “the Bank”). Hearing in this cause was held on the 14th day of May, 1984. From the evidence presented and upon co...
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MEMORANDUM OPINION AND ORDER SUSTAINING OBJECTION TO CLAIM OF EXEMPTIONS This case squarely presents several novel issues in the Court’s continuing exploration of the interplay of Maryland’s common law tenancy by the entireties doctrine and 11 U.S.C. § 522(b)(2)(B) (1982). The trustee’s objection will be sustained for the reasons stated below. FINDINGS OF FACT 1. This case was filed on Dece...
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MEMORANDUM AND ORDER This case comes before the Court on the motion of the debtors (“GHR”) for a stay pending appeal of that part of this Court’s order entered July 27, 1984, 41 B.R. 655, ordering GHR’s accountants, Coopers & Lybrand (“Coopers”), to produce certain audit and tax workpapers to GHR’s se *667 cured bank creditors (“Banks”). Memoran-da of law were filed by GHR an...
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OPINION The issue in the dispute at hand is whether we should amend our judgment of June 27, 1984, 41 B.R. 575, and the accompanying opinion, whereby we denied the debt- or’s complaint for avoidance of an alleged preferential transfer. For the reasons expressed below, we will grant the motion in part, and deny it in part. The facts of this case, as well as those of two related cases ...
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MEMORANDUM OPINION This matter arises out of the motion of a secured creditor, Riggs National Bank of Washington, D.C. (“Riggs”), to reconsider a prior ruling. On September 28,1983, this Court allowed Joseph Cassell (“Cassell”), debtor herein, to redeem an automobile on which Riggs had a security interest. The Court heard argument on November 22, *738 1983 on the Bank’s motio...
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MEMORANDUM OPINION Frank J. and Donis L. Goodavage, debtors herein, filed a petition under Chapter 13 of the Bankruptcy Reform Act of 1978 (“the Code”) on March 21, 1984, and a proposed plan for adjusting their debts on April 4, 1984. The sole secured creditor filed an objection to the proposed plan May 18, 1984. The Trustee in Bankruptcy objected to the plan at the May 22, 1984 confirmat...
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OPINION The matter before the Court in each of these cases is whether, and to what extent, a judicial lien may be avoided pursuant to § 522(f) of the Bankruptcy Code (“Code”) 1 when there are liens junior to the judicial lien which are not avoidable, and where a failure to avoid the judicial lien will result in the debtor not receiving the full amount of the homestead exemption...
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ORDER Before the Court are two motions: A motion to dismiss plaintiff’s Complaint objecting to debtors’ discharge, and a motion for extension of time to file a complaint for a determination of the dischargeability of a debt under § 523 of the United States Bankruptcy Code. B.J. Edwards is represented by Hon. Henry C. Kinslow and the debtors are represented by Hon. Danny C. Roge...
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The Motion of the Trustees of the Richard Kazuo Kishi Trust, (“Kishis”), for the Court to reconsider and vacate its May 8, 1984 Order granting the Motion of the Mel-vyn Choy, Evan Cruthers, Desmond Brooks and Thomas Pagliuso and Troy Corporation to Approve the Second Revised Sublease to Spencecliff Corporation and the Amended Sublease to Surf sports Hawaii, Inc., to Terminate the Grecos’ Claim to ...
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MEMORANDUM OPINION Marion National Bank has alleged non-dischargeability of a debt due and owing on a loan procured by debtor herein. The claim of nondischargeability is premised on 11 U.S.C. § 523(a)(2)(A), (B), and § 523(a)(6). The Court finds that Marion National Bank has failed to prove exception of this debt from discharge pursuant to provisions of the Code on Bankruptcy. Findings of fac...
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DECISION Louis J. Gray (Gray) filed a petition for relief in accordance with Chapter 7 on December 30, 1983. He is a real estate broker, formerly doing business as a partnership with Marilyn Taulbee and in the style of Good Deal Realty. On 2 May 1984 John T. Ducker, Trustee in Bankruptcy (the Trustee) filed a complaint against First National Bank of Southwest Ohio (the Bank) seeking surrender...
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MEMORANDUM The trustee’s complaint seeks to recover Payment-in-Kind (“PIK”) certificates of entitlement owing to the debtors. The issues are: (1) whether PIK payments constitute crop “proceeds;” and (2) whether the debtors’ assignment of PIK wheat payments to one of the defendants constitutes a preferential transfer. After consideration of the briefs, arguments and stipulations, the court...
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MEMORANDUM OPINION CASE SUMMARY In this case, the court is called upon to determine the priority of certain liens and encumbrances against proceeds of the sale of property of the estate. The issue of priority turns upon four questions: (1) whether or not certain statutory mechanics’ liens are valid and enforceable under Utah law and (2), if so, what distributive priority they may hav...
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ORDER Debtor Furimsky successfully defended an action brought by one of her creditors to determine dischargeability of a claim created through use of a materially false financial statement. 11 U.S.C. § 523(a)(2)(B). 40 B.R. 350. She now seeks award of an attorney’s fee against plaintiff premised on § 523(d) of the Code: If a creditor requests a determination of dischargeability ...
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MEMORANDUM AND DECISION RE: MOTION TO DETERMINE SECURED STATUS OF MOUSE BUILDERS, INC. This matter comes before the Court on a motion by Waikiki Marketplace Investment Company, (hereinafter, “Waikiki Marketplace”) to determine the secured status of Mouse Builders, Inc., (hereinafter “Mouse Builders”) and Waikiki Marketplace’s claim for post-petition administrative rent between May 1, 1982 and Augu...
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*960DECISION ON MOTION TO VACATE DEFAULT On July 26,1983 Jose Sem filed a petition seeking relief under Chapter 7 of the Bankruptcy Code. 11 U.S.C. § 301. This matter was a no-asset case involving nineteen creditors with claims totalling $20,841.04. Amongst these claims was $4,318.06 allegedly due and owing to Nassau Trust Company (Nassau Trust). By affirmation dated October 4, 1983 counsel for th...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This Chapter 7 adversary proceeding arises out of a tragic automobile accident which occurred on July 28, 1980 in Cincinnati, Ohio. The plaintiff, administrator of the estate of the deceased victim of the accident, has brought this complaint seeking to have a wrongful death judgment of $296,314 declared nondischargeable on the grounds that ...
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OPINION Pending before the Court is a Motion to Appoint an additional Creditors’ Committee pursuant to Bankruptcy Code § 1102(a)(2) which provides: On request of a party in interest, the court may order the appointment of additional committees of creditors or of equity security holders if necessary to assure adequate protection of creditors or of equity security holders. The court sh...
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MEMORANDUM This matter is before the court on a proposal by the trustee for the debtor, H & S Transportation Company, Inc., to distribute funds from the sale of the M/V SALLY BARTON to secured creditors. On January 4, 1984, the court heard argument on five objections filed by secured creditors against the plan proposed by the trustee. 1 The issue presently before the court is w...
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MEMORANDUM OPINION This matter came before the Court for a hearing on the debtors’ modified plan of reorganization (“plan”) and on the objection to confirmation filed by Irving Leasing Corporation (“Irving”). After consideration of the debtors’ modified plan and the evidence presented by the debtors and Irving during the confirmation hearing, this Court renders the following findings of f...
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PARTIAL SUMMARY JUDGMENT AND ORDER SETTING TRIAL AS TO REMAINING ISSUES This matter is before the Court on plaintiff’s motion for summary judgment in an adversary proceeding initiated as a complaint for declaratory judgment on April 2, 1984. The relief requested is a declaration that the debtor has no right to present or future possession or use of certain farm *364 land in Marion County, Flo...
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*718 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: PROOF OF CLAIM FOR CHILD SUPPORT Debtor filed the instant Chapter 13 proceeding on October 1, 1980. Wife of Debt- or, filed a proof of claim for child support payments in the amount of $13,295.44. Debtor filed an objection on August 4, 1982, contending that payments had been made through garnishment of Debtor’s military pension. Debtor .suggest...
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DECISION AND ORDER RE: FEE APPLICATION OF JOHN A. CHANIN On January 5, 1982, the Law Offices of John A. Chanin (“Applicant”) filed its First Application for Interim Compensation for Services Rendered and for Reimbursement of Expenses for the period covering September 28,1981 to December 31,1981. Applicant was appointed counsel for WPMK, Inc., (“WPMK”) then Debtor-In-Possession, by Order o...
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*360 MEMORANDUM OPINION AND ORDER I. The matter before this court is a petition by Island Club Marina, Ltd., (Debtor) for taxation of attorneys’ fees and court costs against Lee County, a political subdivision of the State of Florida (Lee County). The debtor seeks an assessment of fees and costs against Lee County based on allegations of abusive bad faith in litigation pract...
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STATEMENT OF THE CASE This adversary proceeding was filed on October 19, 1982, by the Trustee, as a complaint seeking declaratory relief combined with an application to sell movable property at private sale. The Trustee was in possession of certain items, including a mobile home, the possession of which had been abandoned. The property had been left on real estate belonging to the bankruptcy esta...
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ORDER The First National Bank of Oakes filed with the Court on December 27, 1983, a Motion to dismiss the above-entitled bankruptcy proceeding pursuant to 11 U.S.C. § 1112. The Debtors filed with the Court on January 5, 1984, an Objection to the creditor’s Motion to dismiss. A hearing on the Motion to dismiss was held before the undersigned on April 11, 1984, and continued to July 10, 1984. F...
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ORDER The Federal Land Bank of St. Paul filed with the Court on May 4, 1984, a Motion pursuant to 11 U.S.C. § 362 requesting relief from the automatic stay. The Debtors filed a response to the Motion on May 25, 1984. A hearing on the Motion for relief from the automatic stay was held before *523 the undersigned in Bismarck, North Dakota, on July 9, 1984. FINDINGS OF FACT The Federal Land ...
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ORDER DENYING MOTION TO REINSTATE AUTOMATIC STAY WITH RESPECT TO THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK On March 27, 1984, on the eve of the trial on the Motion for Relief from Stay filed by first mortgagee, Mutual Life Insurance Company of New York (hereafter “MONY”), a Stipulation for Order Granting Relief from Stay and Order thereon was entered herein, signed by counsel for *359MONY, cou...
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ORDER At Alton, in said district, this matter coming on for hearing on a complaint to *181determine dischargeability of a debt and objecting to the discharge of the debtors, filed on behalf of the plaintiff by his attorney, Gordon E. Maag; Paul E. Riley representing debtors; after reviewing the evidence and otherwise being fully advised in the premises, the Court makes the following findings and c...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING PLAINTIFF’S COMPLAINT FOR A DECREE OF NONDIS-CHARGEABILITY AND DISMISSING DEFENDANTS’ COUNTERCLAIM This is an action brought by the plaintiff under section 523(a)(2) and 523(a)(6) of the Bankruptcy Code seeking a decree of non-dischargeability to it on the grounds that: “defendants, prior to the final bankruptcy, willfu...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER DENYING MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT WITHOUT PREJUDICE The petitioners request that the bankruptcy court grant them leave to reject their collective bargaining contract with the respondent Union under § 365(a) of the Bankruptcy Code and the rule of National Labor Relations Board v. Bildisco and Bildisco, —...
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OPINION In resolving two motions for relief from the automatic stay, the predominant issue arising under one motion is whether a bank which lent the debtor funds in conjunction with a security agreement containing a future advance clause is secured on indebtedness subsequently arising from the debt- or's overdraft of its checking account in a collapsing check kiting scheme. The issue unde...
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MEMORANDUM The trustee has moved for summary judgment, asserting that the defendant, Bradford-White Corporation, has received preferential transfers from the debtor, Tin-nell Traffic Services, Inc., in the amount of $53,114.83. The defendant has filed a cross-motion for summary judgment asserting that the funds it received from the debtor were not property of the debtor but were property ...
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ORDER DENYING DALFORT’S MOTION TO ALLOW SETOFF OF CERTAIN CLAIMS OF DALFORT AGAINST THE UNITED STATES AGAINST CERTAIN DEBTS OF DALFORT TO THE UNITED STATES BACKGROUND 1. On February 27, 1984, Dalfort Corporation (“Dalfort” or “Braniff”) (formerly Braniff Airways Incorporated) filed a Motion to Allow Setoff of Certain Claims of Dalfort Against the United States Against Certain Debts o...
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ORDER DENYING MOTION FOR AMENDMENT OF ORDER APPROVING APPLICATION TO DESIGNATE CO-TRUSTEES AS COMMISSIONERS AND DENYING APPLICATION TO SELL DEBTOR’S PROPERTY On June 4, 1984, the Bankruptcy Court entered an Order Approving Application to Designate Co-Trustees as Commissioners and Denying Application to Sell Debtor’s Property, said order resulting from this Court’s ruling on May 11, 1984, after hea...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE LANDLORD’S GENERAL UNSECURED CLAIMS This matter arises out of a general unsecured claim for $34,607.86, filed by Messrs. Edward Brennan and Roger Linders, dba Niu Shopping Center, hereinafter “Lessors”, for rent and related charges pursuant to a written lease, damages for termination of said lease, and costs for repairs and clean-up to the...
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MEMORANDUM OPINION AND ORDER This matter coming on to be heard upon the Application of the OFFICIAL COMMITTEE OF UNSECURED CREDITORS [the Committee], represented by NACH-MAN, MUNITZ & SWEIG, LTD. to appoint an appraiser with reference to various divisions and business of the above Debtors-in-Possession, and also upon the Response of the above Debtors, represented by SCHWARTZ, COOPER, KOLB...
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MEMORANDUM OF DECISION On March 18, 1982, the plaintiff filed a complaint objecting to the debtor’s discharge. 1 The plaintiff contends that the debtor (1) failed to satisfactorily explain the loss of approximately $18,300; and (2) transferred proceeds from the sale of jointly-owned real property with the intent to hinder, delay, or defraud a creditor. 2 I. Loss of Assets The debtor f...
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MEMORANDUM OPINION AND ORDER Debtors, who are an elderly farm couple, purchased two tracts of land totalling 2,624 acres in Wright and Howell Counties in Missouri. They traded some Indiana land for part of the price and made substantial cash payments. Five creditors, Federal Land Bank, West Plains Bank, Sherman Smith, Kentland Bank and Donald and Eileen Moss took deeds of trust in various...
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MEMORANDUM OPINION INTRODUCTION An unusual situation is presented in this proceeding. These are two thousand adversary complaints filed by the trustee against investors in a “Ponzi” scheme to recover alleged preferences and fraudulent *991 conveyances. 1 The proceedings were consolidated for trial by order of this Court. Defendants contend that the funds sough...
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MEMORANDUM OPINION Two issues are presented to the court for determination: (1) Should the objection of Sovran Bank to the Debtors’ Homestead exemption be sustained?, and (2) Should the Debtors’ motion to dismiss this case to cure a potential defective perfection of the Homestead Deed due to erroneous filing be sustained? On March 21, 1984, the Debtors filed their joint petition in this court...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS (1) GRANTING MOTION TO INTERVENE AND (2) REGARDING DISCOVERY AND TRIAL The First Agency, Inc., by Attorney Eugene D. Harrington, having filed a motion for intervention in the above captioned adversary proceeding; and a hearing having been held; and the Movant appearing by counsel; and Defendant Namekagon Mutual Town Insurance Company appeari...
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ORDER DETERMINING CREDITOR’S RIGHT TO FILE PROOF OF CLAIM The above-styled case was filed in this Court under Chapter 13, Title 11, United States Code, and is pending before this Court under said Chapter 13. On May 30, 1984, the attorney for Stockton, Whatley, Davin & Company, purporting to act for Federal National Mortgage Association (hereinafter referred to as F.N.M.A.), as its servici...
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AMENDED ORDER RE: FINAL COMPENSATION TO COUNSEL FOR UNSECURED CREDITORS’ COMMITTEE Following a hearing held on March 22, 1984, this Court, on March 23, 1984, entered an order awarding Barton Marshall Watson, Esq., hereafter “Applicant”, one-half of the amount requested as final compensation, together with all of the expenses incurred. This Order deals with the balance of the amount requested in th...
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FINDINGS OF FACT (1) Mr. Billy R. Vining is the duly appointed Trustee in this Chapter 11 reorganization ease under the Bankruptcy Code. (2) On October 21, 1983, the said Trustee entered into an agreement to purchase and sell with the defendant, Skelly Drilling Co. represented by its President, Vern 0. Col-lum. The Agreement to Purchase and Sell was introduced as Exhibit P-1. (3) The ...
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MEMORANDUM The Debtor’s Objection to the Claim of Combined Jewish Philanthropies of Greater Boston (“CJP”) came before the Court 1 for hearing on March 21, 1984. The parties agreed to the relevant facts and submitted the case to me on oral argument and Mem-oranda of Law. Based upon the agreed-upon facts and a review of the Memoranda and applicable law, I find and rule as follow...
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MEMORANDUM The Chapter 7 Trustee, seeks to recover a $10,000 security deposit from the defendant, the debtor’s landlord, Fireside Inn Motel, Inc. The complaint alleges that the landlord’s application of the deposit within ninety days of the filing of the bankruptcy petition to satisfy antecedent rent arrear-ages was a preferential transfer under 11 U.S.C. 547. The defendant landlord ...
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*83 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING OBJECTION TO ALLOWANCE OF CLAIMANTS’ CLAIM AND FOR ITS SUBORDINATION TO OTHER CLAIMS The claimants filed their claim on May 12, 1982, for a total of $25,000.00 based upon a “working capital loan” allegedly made by them to the debtor corporation on August 1, 1980. On October 5, 1983, the respondent trustee in bankruptcy fi...
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DECISION & ORDER Dunkin’ Donuts of America, Inc. (hereinafter “Dunkin’ Donuts”), a creditor of Do-nut Queen, Ltd. (hereinafter “Donut Queen”), has moved for a substantive consolidation of the cases of In re Donut Queen, Ltd. and In re Bapajo, Ltd. Long Island Trust Company, N.A. (hereinafter “LIT”), a creditor of both Donut Queen and Bapajo, Ltd. (hereinafter “Bapajo...
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DECISION AND ORDER ON MOTION TO DISMISS On October 27,1983, Joe Fields and Blan-chris, Inc. filed an involuntary petition pursuant to Chapter 7 of the Bankruptcy Code (Code) against Onyx Records Inc. (Onyx). 11 U.S.C. § 303(b). *157 Onyx was a domestic corporation formed on or about July 15, 1971 under the name of Avatar Productions, Inc. (Avatar). The name was changed to Onyx Records, Inc....
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CONSOLIDATED MEMORANDUM OF DECISION REGARDING DEBTOR’S MOTION FOR CONFIRMATION OF PLAN, CREDITOR’S MOTION FOR CONFIRMATION OF AN ALTERNATE PLAN, AND CREDITOR’S MOTION TO DISMISS OR CONVERT CASE. INTRODUCTION This is another chapter in a narrative that bids fair to become a bankruptcy epic. Four years ago, Victory Construction Co. filed a petition for relief under Chapter 11. The debt...
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MEMORANDUM OPINION AND ORDER The plaintiffs in this proceeding seek a determination of nondischargeability of their claim against the debtor. That claim had been liquidated under a consent judgment in the plaintiffs’ medical malpractice action against the defendant in state court. The debtor is a licensed podiatrist. Plaintiff Betty Perkins started treatment for pain in several toes ...
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*154MEMORANDUM OPINION John Hancock Mutual Life Insurance Company (Movant) seeks, by motion, relief from the automatic stays under 11 U.S.C. § 362(a) in order to foreclose its first mortgage on a 1350-acre farm belonging to the Debtor, Rolanco, Inc. Alternatively, Mov-ant seeks an order by this Court restraining Debtor from using the farm until the Debtor affords Movant “adequate protection” of it...
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DECISION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT REGARDING SETOFF This adversary proceeding was commenced by the Chapter 7 trustee of the Estate of Mary Ellen Hecht, M.D. The trustee seeks to recover $87,800.08 plus interest from Chemical Bank (“Chemical”), the defendant in this action. Prior to Dr. Hecht’s bankruptcy petition, Chemical set off funds in Dr. Hecht’s checking account against cert...
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OPINION This case reaches the Court on a complaint to determine dischargeability of a debt. The parties have submitted the case to the Court on briefs and a set of stipulated facts. The sole issue before the Court is a legal one: whether the conduct of the defendant in driving an automobile while intoxicated, resulting in damage to property of another, constitutes willful and malicious in...
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' MEMORANDUM GRANTING LIEN AVOIDANCE The debtors sought relief by filing a petition under Chapter 7 of the Bankruptcy Code. On February 21, 1981, the debtors received a discharge of their indebtedness under the provisions of Chapter 7. After their discharge, the debtors filed an “Application to Avoid Judicial Lien” on January 10, 1983. Carpet Braggers, Inc., the defendant, then filed an a...
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MEMORANDUM OPINION The matter presently before the Court is a Complaint to Determine Dischargeability of a Debt, filed on behalf of Ford Motor Credit Company in the individual bankruptcy proceedings of the former owner and president of Dean Ford, Inc. In its com *816 plaint, Ford Motor Credit Corporation, hereinafter “FMCC” alleges that Debtor failed to remit proceeds from th...
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FINDINGS OF FACT Both of the debtors in the above captioned cases filed for relief under Chapter 11 of the Bankruptcy Code on July 11, 1984. The Colonial Bank filed a Proof of Claim in both cases on April 12,1984, in the amount of One Hundred Fifty Nine Thousand One and 83/100 ($159,001.83) Dollars. On April 18, 1984, Colonial Bank filed a Motion to Modify Stay seeking relief from the automatic...
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MEMORANDUM Howard Bryant (“Bryant”), a former employee of Charles River Books, Inc. (“Charles River” or “the debtor”) filed a proof of claim in this case in the amount of $4119.20 for out of pocket expenses incurred on behalf of Charles River during 1981 and 1982. The debtor objected to the claim and an evidentiary hearing was held on April 18,1984. Based upon the testimony and documentary evidenc...
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MEMORANDUM DECISION AND ORDER FOR JUDGMENT The above-captioned matter has come on before the undersigned United States Bankruptcy Judge for decision upon a designated record, including a Stipulation of Fact, transcript of a deposition of Debtor-Plaintiff, and Memoranda of Law by counsel for both parties. Pursuant to the Federal Rules of Civil Procedure, the Court makes the following Memorandum ...
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MEMORANDUM DECISION AND ORDER FOR JUDGMENT The above-captioned matter has come on before the undersigned United States Bankruptcy Judge for decision upon a designated record, including Stipulation of Fact and Memoranda of Law by counsel for both parties. Pursuant to the Federal Rules of Civil Procedure, the Court makes the following Memorandum Decision as its Findings of Fact and Conclusions of...
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On November 4, 1983 Anglo Energy, Ltd. (Anglo), Anglo Company, Inc. (ACI) and Anglo Industries, Inc. (All) each filed a petition for reorganization under Chapter 11 of the Bankruptcy Code (Code). 11 U.S.C. § 1101, et seq. The Chapter 11 reorganization proceedings of Anglo, ACI and All are being jointly administered and each of them continues to operate its business as debtor in pos...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint for Injunction and for Hearing on the Motion for Relief From Stay. At those proceedings, the Court received the testimony, observed the demean- or of the witnesses and exhibits offered by the parties, and heard the arguments presented by counsel. The Court has reviewed the evidence and has considered...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Defendant’s Motion to Dismiss and the Plaintiff’s Opposition to that Motion. The Court has reviewed the arguments presented by counsel along with the entire record in this case. Based upon that review and for the following reasons the Court finds that the Motion should be DENIED. *698 FACTS The bank...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the court on defendants’ Motion to Dismiss for Improper Venue. At the outset, it is observed that dismissal is inappropriate where the only impediment is improper venue. In re Herman Cantor Corp., 22 B.R. 604 (Bankr.E.D.Va.1982). Therefore, attention will be directed to the question of venue. The underlying Complaint seeks...
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MEMORANDUM AND ORDER RE: DISCHARGEABILITY OF DEBTS Before the Court is the complaint of Lillian G. Altavilla to have two debts owed to her excepted from the effect of discharge under § 523(a)(5) of the Bankruptcy Code. Mrs. Altavilla, having obtained a decree nisi from the Barnstable Probate Court on April 10, 1981 (said judgment becoming final on October 10, 1981), claims that the order of t...
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OPINION In this adversary matter, the trustee of the above debtor, Good Time Charley’s, Inc. (GTC), seeks to set aside a mortgage given by GTC to Charles Barondess. The trustee moves under § 544 of the Bankruptcy Code on the grounds that the mortgage constitutes a fraudulent conveyance within the scope of the New Jersey Corporations Act, N.J.S.A. 14A:14-10[2] & [3]. On April 6, 1977,...
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DECISION AND ORDER John S. Pereira, as Trustee in Bankruptcy of Graff Marketing Corporation (“Graff Marketing”) has moved, pursuant to Canons 4 and 9 of the New York State Bar Association Code of Professional Responsibility1 (“Canon 4 and Canon 9”), for an order disqualifying Robert S. Schachter and the lawfirm of Goodkind, Wechsler & Labatan (the “Goodkind Firm”) as counsel for Houze Glass Compa...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion to Dismiss filed by the Defendant. The parties have agreed that the issues addressed by the Complaint are primarily issues of law. They have also agreed that the Court may reach a disposi-tive decision in this case based upon the written arguments of counsel that were offered in reference to the Motion to Dismiss. Ea...
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OPINION This case comes before the Court on a complaint for turnover of property of the estate filed by the debtor pursuant to *335 Bankruptcy Code section 542, 11 U.S.C. § 542. The debtor seeks an Order directing the defendant to release funds currently being held in an escrow account at Gir-ard Bank. The defendant has answered, claiming that the debtor breached the contract...
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MEMORANDUM DECISION The above-entitled debtors filed a chapter 11 petition in bankruptcy on May 31, 1984. See 11 U.S.C. § 1101, et seq. The State Circuit Court for the Sixth Judicial Circuit entered Findings of Fact and Conclusions of Law and an Order for Delivery of certain items of the debtors’ personal property on May 17, 1984, in favor of the secured creditor, BankWest, N.A., of Pierre,...
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MEMORANDUM DECISION The above-entitled debtor filed a chapter 7 petition in bankruptcy on July 8, 1983. The trustee conducted an 11 U.S.C. § 341 meeting of creditors on August 16, 1983. The trustee, by his own admission, filed an objection to the debtor’s claimed exempt property on August 22, 1983, but failed to serve the objection on the debtor or debt- or’s counsel until October 29, 1983. Deb...
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*414 MEMORANDUM Section 542 of the Bankruptcy Code, 11 U.S.C.A. § 542 (1979), generally requires anyone holding property of the estate to deliver such property to the trustee. In this adversary .proceeding the plaintiff trustee seeks an order requiring the defendant Hamilton Bank of Morristown (Bank) to turn over all funds on deposit in a dealer reserve account, to wit, $43,343.0...
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MEMORANDUM Plaintiff trustee in bankruptcy seeks an order requiring the defendant United Southern Bank (Bank) to turn over all funds on deposit in a dealer reserve account, to wit, $13,953.68, together with interest which has accrued thereon subsequent to the entry of the order for relief on December 17, 1981. 11 U.S.C.A. § 542 (1979). Denying that the trustee is entitled to a turnover order, the ...
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OPINION This motion raises the important question, among others, of whether post-petition interest on a senior secured claim should be subordinated to the pre-petition claim of a junior secured creditor. Facts and Procedural History 1. John C. Maimone and Raffaela Maim-one, the Debtors, filed a petition for relief under Chapter 11 of the Bankruptcy Code on October 20, 1980. ...
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OPINION The complaint before us seeks the avoidance of a lien. The problem is whether *931 certain work performed by a creditor on the debtor’s steam boilers was “erection and construction” rather than “alteration and repair” within the meaning of Pennsylvania’s Mechanics’ Lien Law so as to give the creditor a lien in this reorganization proceeding. For the reasons expressed herein we find th...
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ORDER In this “Old Act” case Allan M. Shine, Esq., the trustee, has collected, and either has distributed or will distribute approximately $59,000 to creditors. Of this amount, $50,736 has been paid to secured or priority creditors. Compensation has previously been awarded to Mr. Shine in this case as follows: Receiver’s Commission $ 41Y.04 (Allan M. Shine, Esq.) Attorney for Receiver 4,540.00 (Al...
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MEMORANDUM OPINION and ORDER The Chapter 11 debtor in these adversary proceedings seeks an injunction against the United States and its agents, the Internal Revenue Service, to prevent the taxing agency from proceeding against officers of the debtor corporation to collect certain penalty tax assessments under 26 U.S.C. § 6672. Identical complaints were filed by the debtor in both adversar...
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MEMORANDUM AND ORDER This matter came on to be heard upon the application of LaSalle Mortgage & Realty Co., Inc. (“LaSalle”) for the entry of an order allowing its claim for damages incurred when Destrón, Inc. (Debtor), rejected a certain lease of industrial property. In addition, LaSalle has applied for the allowance of its administrative claim for post-petition rent. LaSalle has further...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing on March 19, 1984, on the United States’ Complaint to determine dischargeability of debt pursuant to Section 207 of the Social Security Act, 42 U.S.C. § 407, as amended by Pub.L. No. 98-21, § 335, and on debtor/defendant’s summary judgment motion, and on what the plaintiff described as its cross-motion for summary judgment. Debt...
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STATEMENT OF THE CASE The first modified disclosure statement was filed in this case, on July 27, 1982, and was approved by this Court, on September 15, 1982. The first modified plan of reorganization was confirmed on October 6, 1982. Under the plan, the farmers were to be cashed out either from retainage from their crops held by the trustee or by the Bank of Dixie purchasing their c...
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MEMORANDUM AND ORDER Continental Illinois National Bank and Trust Company of Chicago, agent for the debtors’ secured bank creditors (“Banks”), 1 has been attempting to obtain from the debtors (“GHR”) and GHR’s accountants, Arthur Andersen & Co. (“Andersen”), Coopers & Lybrand (“Coopers”) and Peat, Mar-wick, Mitchell & Co. (“Peat, Marwick”) (collectively “accountants”) 2 ...
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MEMORANDUM AND DECISION The Debtor, Colin Hochstin Co. (“CHC”), has moved for an order declaring that the New York Stock Exchange (“NYSE” or the “Exchange”) and its enforcement division are subject to the automatic stay which became operative immediately upon the May 1983 filing by Justin Colin of an involuntary Chapter 11 petition against his former brokerage firm, CHC. The NYSE has oppo...
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MEMORANDUM AND ORDER The court has before it the motion of Gulf Oil Corporation (“Gulf”), seeking the appointment of a trustee under 11 U.S.C. § 1104(a) (“trustee motion”). This motion was instituted by Horizon Products Company (“Horizon”) on November 30, 1983. Gulf informally became a participant during the initial hearings on this matter. When Horizon and the debtor, General Oil Distrib...
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MEMORANDUM DECISION AND ORDER By this adversary proceeding plaintiff, Carey Lumber Company (hereinafter “Carey”), seeks to: 1) deny, pursuant to 11 U.S.C. § 727, the discharge to the debtor; and 2) determine a debt to be nondischargeable pursuant to 11 U.S.C. § 523. Before the Court is Carey’s motion for summary judgment pursuant to Rule 7056 Fed.R. Bankr.P. and Rule 56 Fed.R.Civ.P., that...
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DECISION ON APPLICATIONS FOR FEES Several applications for compensation are before the Court in this “Old Act” case, which has been pending since August 24, 1977, when National Finance Corporation filed a Chapter XI petition. *330 The first paragraph of the petition states that the bankrupt company was “in the business of consumer loans.” Many of the bankrupt’s creditors are...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT In this adversary case, the plaintiff, James L. Adashek, trustee for Bob Engler Company, Inc. (“debtor”) seeks recovery of an account receivable of the debtor against Wagner Products Division of E.R. Wagner Manufacturing (“defendant”) for labor and services allegedly provided. A trial was conducted before this Court on June 14, 1984. ...
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ORDER Upon consideration of the supplement to the trustee’s application to treat the late-filed claim of Michael Parrott as timely filed, the Court finds and concludes as folio v^s: 1. The order of December 21, 1983 by former Judge Whelan of this Court denied the trustee’s application without prejudice to renewal if it could be shown that Mr. Parrott “did not have notice or actual knowledge of th...
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MEMORANDUM AND PROPOSED ORDER The plaintiffs, debtors, brought this action to determine, inter alia, the discharge-ability of an order of restitution entered by the Superior Court of the State of Connecticut for the Judicial District of New Haven as a condition of probation in connection with a larceny conviction of the debtor Florence Pellegrino. I. BACKGROUND O...
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MEMORANDUM DECISION The chapter 11 debtor-in-possession seeks avoidance under 11 U.S.C. § 547(b) of a preferential transfer. Defendant has answered and the matter was tried on July 19. The facts are not in dispute. In March 1983, the debtor, a Miami charter air service, borrowed $75,000 from a Miami bank upon a note secured by a Douglas DC7CF aircraft, Serial No. 45188, Registration ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT Creditor James L. Zahn brings the instant complaint, requesting the Bankruptcy Court to hold the debt owing by Ernest Sumió Uyehara (“Debtor”) to James L. Zahn (“Creditor”) nondischargeable pursuant to Sec. 523(a)(2) of the Bankruptcy Code. A hearing was held on February 10, 1984, at which time Ronald Tong...
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ORDER RE: APPLICATION TO EMPLOY SPECIAL COUNSEL FOR SPECIFIC PURPOSE ON A CONTINGENCY FEE BASIS Johore Investment Company (U.S.A.) Inc., (“Debtor”) requests permission to employ the law offices of Schutter, Pavey, and Cayetano (“SPC”) as special counsel in an action against Territorial Savings and Loan Association (“TSL”), and Territorial Enterprises, Inc. (“TEI”), on a contingency fee basis. ...
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DECISION This matter is before the court on the objection of Robin Lazar (“Lazar”) to the confirmation of the Chapter 13 plan proposed by Dennis J. Sullivan (“debtor”). La-zar, debtor’s former wife, objects to the confirmation of debtor’s plan on the ground that the plan does not comply with 11 U.S.C. § 1325(a)(3) which requires that the plan be proposed in “good faith.” Alternatively, Lazar se...
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DECISION AND ORDER FACTS This case was instituted by petition for relief under Chapter 11 filed on 18 January *919 1983 by Pennsylvania Iron & Coal Company, Inc. [“Pennsylvania”]. The Ohio Bureau of Workers’ Compensation [“the Bureau”] was scheduled as a general, unsecured creditor in the aggregate amount of $28,279.28. In pertinent part, among very extensive litiga...
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MEMORANDUM OPINION The court must determine the interplay of 11 U.S.C. § 506(b) and 11 U.S.C. § 1325(a)(5)(B)(ii) where the secured creditor’s collateral is of a value in excess of the amount due it as of the date the bankruptcy petition was filed. Charles D. Corliss and Jody L. Corliss filed their Chapter 13 bankruptcy petition on December 7, 1983. A confirmation hearing on the debt...
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OPINION In deciding whether to grant a creditor’s request for relief from the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”) we must determine whether the creditor’s notice to the debtor of termination of the leasehold was adequate. For the reasons expressed below, we conclude that the notice was sufficient and will enter an order granting relief from the stay....
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OPINION The issue in the controversy before us is whether we should grant a creditor’s motion to appoint a trustee in a chapter 11 proceeding pursuant to 11 U.S.C. § 1104 of the Bankruptcy Code (“the Code”). For the reasons expressed below, we will grant the motion. The facts of this case are as follows: 1 The debtor is an insurance agent which has operated for the last several years under ...
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OPINION The issue in the matter at hand is whether we should grant a creditor’s request for an exception to discharge for damages caused by the debtor’s sale of property which was encumbered by the creditor’s security interest. For the reasons expressed below we will enter an order excepting the debt from discharge. The facts of this case are as follows: 2 Century Equipmen...
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OPINION The question presented in the controversy at bench is whether the debtor has proven hardship to entitle him to a discharge of his student loans under 11 U.S.C. § 523(a)(8) of the Bankruptcy Code (“the Code”). For the reasons expressed below we will deny the discharge of the loans. The facts of this case are as follows: 1 The debtor is currently twenty-nine years ol...
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OPINION The predominant issue at bench is whether we should grant the motion of a debtor for reconsideration of our decision of May 17, 1984, which granted a lessor relief from *519 the automatic stay imposed by Section 362(a) of the Bankruptcy Code (“the Code”) in order that it might repossess a vehicle leased to the debtor. For the reasons stated herein, we find that the le...
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OPINION The predominant issue 1 in the case before us is whether we should sustain the debtor’s objection to the trustee’s proposed sale of his realty free and clear of liens when the encumbrances on that realty greatly exceed the proposed sale price. The issue must be resolved in light of the provisions of § 363 of the Bankruptcy Code (“Code”), coupled with the second mortgage...
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OPINION The issue at bench is whether we should allow a creditor’s claim over a debtor’s objection that the claimant’s release of the debtor from obligations to the claimant included an assigned debt which is the basis of the proof of claim. For the reasons stated herein, we will allow the claim. The facts of the case are as follows: 1 Vacuum Cleaner Corporation of America...
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OPINION The predominant issue in the action at bench is whether a debtor may compel the return of payments made to a creditor through postpetition payroll deductions from the salary of a chapter 13 debtor, when such return is sought in conjunction with a conversion of the case to a chapter 7 proceeding. For the reasons expressed below we will order the return of .the payments. The fa...
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MEMORANDUM The within named debtor filed an earlier bankruptcy case on March 17, 1982 at No. 82-00147 in the within Court which is still pending therein. She was granted a discharge in said original case on September 22, 1982, but it was revoked by Order of this Court February 25, 1983 after a hearing in which she admitted in her testimony that she had concealed the existence of a mortgage she ...
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MEMORANDUM OPINION AND ORDER The issue before the court concerns the allowance and payment to be credited upon the claim of Central Supply Company of Virginia, Inc. (“Creditor”) by the Chapter VI Trustee herein. Elkins Energy Corporation (“Debtor”) filed in this court in 1979 a Chapter XI petition seeking reorganization of its extensive coal mining operation in Southwest Virginia. Thereafter, the ...
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DECISION AND ORDER Before this Court is an objection filed by Coolidge Glass Company (“Coolidge”), the largest unsecured creditor, to a plan of reorganization submitted by Modern Glass Specialists, Inc. (“debtor”). 1 The debtor is a company which has been engaged in the installation of glass since 1977. Edward and Mary Schmierer are its sole stockholders. In support of its...
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MEMORANDUM AND ORDERS RE: DISCHARGEABILITY COMPLAINTS Before the Court are two complaints involving the dischargeability of certain cred *631 it card debt owed by two unrelated debtors. The factual circumstances involved are somewhat dissimilar but are representative of two types of credit card dischargeability actions that this Court and other bankruptcy courts see all too frequently. In t...
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ORDER VACATING AND SETTING ASIDE “FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER DIRECTING PAYMENT OF $25,000.00 PLUS ANY EARNED INTEREST TO DEBTOR BUT CONDITIONING DISCHARGE OF DEBTOR IN CHAPTER 13 PROCEEDING ON USE OF UNEXEMPT AND UNENCUMBERED PORTION OF PROCEEDS TO PAY CREDITORS THROUGH CHAPTER 13 PLAN” OF FEBRUARY 1, 1984, AND INSTEAD DIRECTING MONIES TO BE RETURNED TO THIS COURT FOR PR...
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ORDER Before the Court is the debtor’s motion to compel the Chapter 13 trustee to turn over the debtor’s federal income tax refund for the tax year 1982. The debtor has contended that as her confirmed Chapter 13 plan did not require her 1982 federal income tax refund to fund the plan the debtor is entitled to recover the income tax refund. The trustee, in response to the debtor’s position, has ...
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The Complaint to Determine Discharge-ability of Debt filed by First Hawaiian Bank came on for trial before the Bankruptcy Court on May 14, 1984. The Debtor was represented by Philip D. Bogetto, Esq. and First Hawaiian Bank was represented by Tod Z. Tanaka, Esq. and Jeffrey E. Brunton, Esq. Having considered the evidence and arguments of counsel, having reviewed the record and file herein, the Cour...
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MEMORANDUM OPINION AND ORDER This case is a Chapter 11 proceeding in which a trustee has been appointed. The debtor is in the landfill business. On November 10, 1983, the debtor obtained a license from the Michigan Department of Natural Resources (DNR) to open and operate a new cell (cell #5) in Montrose Township, Genesee County, Michigan. On March 30, 1984, Citizens for Safe Landfills, I...
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MEMORANDUM OF DECISION AND ORDER INTRODUCTION This case presents an apparent conflict between the Bankruptcy Code and the Employee Retirement Income Security Act of 1974 (“ERISA”). The underlying dispute involves alleged liability for withdrawal from a pension trust fund. The claimant asserts that any dispute should be carried out through ERISA’s statutory arbitration procedure. The ...
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FINDINGS OF FACT, CONCLUSIONS AND ORDER ON TRUSTEE’S COMPLAINT TO VOID PREFERENTIAL TRANSFER This matter comes before the Court on the Trustee’s Complaint for Avoidance *514of a Preferential or Fraudulent Transfer and for Turnover. Preliminarily, since the transfer attacked by the Trustee occurred more than one year prior to the filing of the petition on September 12, 1983, under Chapter 7 of the ...
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OPINION This matter concerns the motion of Frank Pardo to dismiss the Chapter 11 case filed by Management Technology Corporation (MTC), pursuant to § 305[a][l] or § 1112[b] of the Bankruptcy Code. 11 U.S.C. §§ 305[a][l], 1112[b]. MTC has been engaged in the management consulting business since its formation in 1979. Forty-three per cent of the stock of MTC is owned by Pardo, 37 per c...
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MEMORANDUM OPINION Two cases before the court require an interpretation of Oregon’s homestead exemption statute, O.R.S. 23.240(2), within the context of debtors’ exemptions claimed after the filing of chapter 7 petitions in bankruptcy. Betty Jean Earnest (hereinafter Earnest) and Gary Kent Stookey (hereinafter Stoo-key) each had sold their homes prior to filing bankruptcy and received buyers’...
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MEMORANDUM The debtor-in-possession claims that the debtor’s eve-of-bankruptcy payments on a judgment for arrearages to its employees’ pension plan are recoverable preferences under 11 U.S.C.A. § 547 (West 1979). The issues are: (1) whether the post-confirmation debtor is the proper party to prosecute this action; (2) whether the referral of this proceeding from the district court to the ...
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MEMORANDUM OPINION This matter came before the Court upon the filing of an objection to a proof of claim filed by the Internal Revenue Service (IRS) and upon a motion for civil contempt against the IRS for violation of the automatic stay imposed by 11 U.S.C. § 362(a). The Court held a hearing on the debtor’s objection and motion and after considering the memoranda of law submitted by the ...
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DECISION In this adversary case, the plaintiff, Jan E. Curry (“debtor”), asks the Court to declare her student loan obligations to the named defendants discharged and alleges that requiring her to pay these loans would impose an undue hardship upon her, pursuant to § 523(a)(8)(B) of the Bankruptcy Code. 1 This case was tried before this Court on June 13, 1984. The debtor appe...
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MEMORANDUM OPINION ON MOTION FOR MODIFICATION OF THE STAY AND ABANDONMENT STATEMENT OF THE CASE On January 30, 1984, Larry S. Hollie and Sherry R. Hollie, Debtors, filed a petition *114 for relief under Chapter 11 of the United States Bankruptcy Code. Before the Court is the “Motion for Modification of the Stay and Abandonment” filed by the United States of America, Unit...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This Chapter 7 case is before the Court pursuant to the Trustee’s complaint for turnover of the cash surrender value of insurance policies on the lives of the debtors. Plaintiff and debtor-defendants have filed memoranda in support of their respective positions. For purposes of this proceeding and with consent of the parties, the memoranda will b...
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MEMORANDUM AND ORDER DENYING MOTION TO REOPEN CASE TO AVOID JUDICIAL LIENS This matter comes before the Bankruptcy Court on an application of Sandra Lee *454Marin to reopen her closed bankruptcy case at No. 83-00138E in the within Court together with that of her divorced husband, David Alan Marin at No. 82-00139 for the purpose of avoiding the judicial liens of judgments entered jointly against t...
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ORDER NO. 112 MEMORANDUM AND ORDER ON TRUSTEE’S MOTION FOR AN ORDER TO SHOW CAUSE WHY THE DEBTOR SHOULD NOT BE HELD IN CONTEMPT Pursuant to 11 U.S.C.A. § 303(h) (1979), an order for relief under chapter 7 was entered against David A. Crabtree on August 22, 1983. Order No. 67, entered on March 14, 1984, required Crabtree to file a statement of his financial affairs and schedules of assets and liabi...
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MEMORANDUM AND ORDER The trustee has objected to a claim filed by the debtor, Eugene Hendrix Tuggle, on June 20, 1984, in the name of the Internal Revenue Service for “Assessment for Federal employment taxes withheld by Tuggle Pontiac-Buick-GMC, Inc.,” in the sum of $28,743.00. Tuggle Pontiac-Buick-GMC, Inc. filed a voluntary chapter 7 petition (Case No. 3-82-01645) in this court on October 27, 1...
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RECOMMENDATION RE: MOTION FOR RELIEF FROM AUTOMATIC STAY Creditors William B. Soenksen and Herbert Wilson, (“Movants”) filed the instant Motion for Relief from Automatic Stay on May 4, 1984. A preliminary hearing was held on May 30, 1984 and the final hearing was held on June 11, 1984, at which hearing were present Charles Brower, Esq., representing Kaneohe Custom Design, Ltd., fka Lloyd A. Yan...
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Findings of Fact, Conclusions of Law, and ORDER Sustaining Complaint Objecting to Discharge Pursuant to § 727 The matter before the Court is the Complaint filed by The First National Bank of Mason City (Bank) objecting to the discharge of Thomas Howard Cook (Debtor). Attorney John L. Duffy represented the Bank and Attorney David M. Nelsen represented the Debtor. The Court, being fully adv...
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Findings of Fact, Conclusions of Law, and ORDER Sustaining Trustee’s Objection to Exemptions Claimed The matter before the Court is an Objection filed by the Trustee to a claim of exemption by the Debtor. On March 5, 1982, the Debtor, filed a voluntary bankruptcy petition under Chapter 7 of Title 11 of the United States Code. Among the assets scheduled by the Debtor was an Individual Retirement...
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ORDER DIRECTING TRUSTEE TO IDENTIFY PORTIONS OF TRANSCRIPT RELIED ON BY HIM IN SEEKING DETERMINATION OF CERTAIN ISSUES This adversary action was commenced in this court by the Farmers State Bank to recover from the trustee the proceeds of sale of certain real property to which both the plaintiff bank and Ora Butcher had conflicting claims. 1 A parallel case, seeking to establish the right of ...
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OPINION This case came on for hearing on an objection by creditor Gladys Dorgett to the debtor’s claim of exemptions. The objection is that the debtor’s $4,256.00 claim of exemption in his residence exceeds the debtor’s “aggregate interest” in the residence, under 11 U.S.C. § 522(d)(1), because *508 the amount claimed exempt exceeds the equity in the property and because the ...
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ORDER ON STAY Plaintiffs complaint to lift the stay against enforcement of the Deed to Secure Debt on debtor’s principal residence having come on before this court for a hearing on May 3, 1983, upon summons and notice to the above-named debtor, to his attorney at law, to the trustee, to Yvonne McKanders, and to her attorney at law, and neither a motion nor an answer to the complaint having been f...
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ORDER TERMINATING STAY The above styled motion for relief from stay having come on regularly for hearing on December 8, 1983 at 11:00 a.m., and it appearing that movant is entitled to the relief sought; IT IS HEREBY ORDERED that the motion seeking relief from stay of proceedings be, and the same is hereby, GRANTED; and, FURTHER ORDERED, that the movant is relieved of the restraining effects of § 3...
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DECISION Jane Ellen Olah filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code on September 30, 1982. She scheduled five secured creditors with debts totalling $324,648.02, and a disputed unsecured claim. Prior to filing in Chapter 13 the Debtor was a defendant in a foreclosure action in the Common Pleas Court of Logan County, Ohio, instituted on 15 June 1982 by Robert W. ...
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OPINION This is an action to recover certain transfers allegedly made in violation of section 547 of the Bankruptcy Code. *394Klein’s Department Store, Inc. (debtor) was engaged in the retail clothing business. In April of 1981, the debtor ordered shirts from National Service Industries, Inc. (NSI). The shirts were to be manufactured in the Orient and shipped to the seller’s warehouse in North Ca...
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MEMORANDUM ON APPLICATIONS FOR COMPENSATION BY ATTORNEYS AND ACCOUNTANTS FOR THE INVESTORS At issue is the reasonableness of accountant and attorney fees incurred by an investor group for services in connection with the debtor’s chapter 11 plan. Because postconfirmation payment is sought from assets of the debtor’s successor in interest, which has issued securities and acquired property u...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING MOTION FOR RELIEF FROM STAY This matter is before the Court on Amoco Oil’s motion for relief from the automatic stay of 11 U.S.C. § 362. Amoco seeks to refuse to renew a lease and dealer supply agreement with respect to a service station on Emerson Street in Jacksonville with the debtor. The agreement, by its terms, will terminate on July 31,...
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MEMORANDUM The debtor, Franklin Mann (“Mann” or “the debtor”), filed a Voluntary Chapter 7 petition on June 27, 1983. The First National Bank filed this Complaint to determine the nondischargeability pursuant to 11 U.S.C. § 523(a)(2)(A) and (B) of the debt- or’s guarantee of an obligation to the Bank in the amount of $106,982.20. The Bank alleges that the debtor submitted a false financial stat...
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The United States Small Business Administration (SBA) has moved for relief *897 from the automatic stay and for leave to foreclose on collateral securing two notes. The collateral consist^, mainly of real estate, and the central issues are whether there is equity in said real property, and, if so, whether the SBA’s security interest is adequately protected. The debtor, Ergie B...
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The defendants Old Colony Co-operative Bank and Newport National Bank (Bank) have filed a motion to prevent the trustee of Miracle Enterprises from examining Philip M. Champagne, either at deposition or at trial, concerning matters which it claims are protected as confidential under the attorney-client privilege. For the reasons stated below, the motion is denied. The issue before this Cou...
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DECISION ON MOTION TO LIFT/VACATE AUTOMATIC STAY The Administrator of Veterans’ Affairs has moved for an order dismissing this Chapter 13 case, or, in the alternative, vacating the automatic stay imposed under 11 U.S.C. § 362. The debtor, Samuel P. Gray, originally filed with this court a petition for relief under Chapter 13 of the Bankruptcy Code on May 14, 1981. After filing five a...
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DECISION ON OBJECTION TO YEISER APPLICATION Eric B. Yeiser and Charles F. Yeiser (hereafter “Applicants”) filed an application in this Chapter 11 case for payment to them of the amount of $6,636.00 as an administrative expense. The total request *9 ed breaks down to $3,318.00 to each of the applicants, and that amount breaks down further to $1,086.00 on account of each of thr...
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DECISION The plaintiff in this adversary proceeding was a lessor of equipment to the debtor, *7namely four cash registers. Defendant is the trustee in the related Chapter 7 case. In its complaint, plaintiff seeks to impose liability upon defendant on grounds that defendant breached his duty to plaintiff with respect to the four cash registers. The case came on for trial. Defendant moved to dismiss...
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MEMORANDUM OPINION AND ORDER Elkins Energy Corporation, Debtor herein which was engaged in the coal mining business, filed a voluntary petition in this court on August 3, 1979, seeking relief under Chapter XI of the Bankruptcy Act of 1898, On October 8, 1980, a Proof of Claim (# 107) in the amount of $156,000.00 was filed by Coy and Regina Mullins. The Mullins’ claim sought pri...
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MEMORANDUM OPINION AND ORDER The issue before the court is whether or not the Defendant, First National Bank of Broadway (“Bank”) has a perfected security interest in funds held by Valley of Virginia Cooperative Milk Producers Association (“Co-op”) retained from Debtors’ milk sales. *494 On July 18, 1983, the Debtors filed their Chapter 7 liquidation petition in this court and, thereafter, ...
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MEMORANDUM OPINION AND ORDER Johnston Memorial Hospital, a creditor, objects to the Chapter 7 Trustee’s final accounting and proposed distribution on the grounds that it fails to recognize the secured status of the hospital. The creditor filed a Motion for Abandonment by the Trustee of certain funds on which the hospital claims a valid judicial lien and requests disbursement of said funds pursuant...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AVOIDING LIEN Debtors Ronald J. and Nancy L. Kursz-ewski, by Attorney David J. Worzalla of McKelvey, Worzalla & Klessig, S.C., having filed a motion to avoid a judicial lien; 1 and hearings having been held; and the Debtors appearing by counsel; and Creditor Leonard R. Zurawski d/b/a L.R. Zuraw-ski Realty, Inc., by Attorney Robert...
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MEMORANDUM OPINION This proceeding is before the Court on cross-motions for summary judgment. It presents a difficult question of characterization of a debt as alimony or maintenance in which case it may not be discharged under the terms of 11 U.S.C. § 523(a)(5) or, alternatively, whether it is a marital property settlement award which is covered by the defendant’s discharge. A final decree o...
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MEMORANDUM DECISION The debtor’s major creditor, who holds a judgment for $969,228, opposes discharge under seven counts and seeks exception from discharge under an eighth count. At trial, counts 5 and 7 were abandoned. The trustee is a nominal plaintiff. The debtor has answered and the matter was tried on June 5. Counts 4, 6 and 8 have not been substantiated. Count 4 identifies ten respects in w...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge for its claim of $362,987 under 11 U.S.C. § 523(a)(4) and (6). The principal obligor is the debtors’ corporation. The debtors are secondarily liable. The debtors have answered and the matter was tried on June 21. At trial, plaintiff abandoned its first Count presented under § 523(a)(2)(B) and dropped all its charges against the ...
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MEMORANDUM ON DISQUALIFICATION OF DEBTOR’S COUNSEL This matter arose from the application of Anver Corporation (the “debtor”) for employment of counsel during the administration of its Chapter 11 case. Specifically, counsel’s firm is debtor’s pre-filing counsel and is also a creditor for pre-filing services, and a partner is an equity holder of approximately one per cent, and the secretar...
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DECISION ON COMPLAINT OBJECTING TO SECURED CLAIM OF FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SUFFERN In this Chapter 13 case, the debtor, Shi-rin Guccione, objects to a secured claim filed by First Federal Savings & Loan Association of Suffern (“First Federal”) on the grounds that the claim includes an improper charge of interest upon past due interest, that it fails to account for int...
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MEMORANDUM AND DECISION This case presents the issue of whether an operating trustee for a debtor-in-possession may reject leases of tenants and thereby be relieved of the contractual obligation to service a building that is property of the estate notwithstanding the requirements of local laws that landlords provide essential services. I The Chapter 11 Trustee of the estate of S...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On March 19, 1984, the Michigan National Bank of Detroit (MNBD or Bank) filed with this court a Motion to Disqualify Debtor’s Counsel, to Deny All Future Compensation and to Require the Disgorgement of Past Compensation. In light of the fact that a potentially lengthy trial on the Bank’s motion for relief from stay has been scheduled to begin on Apr...
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MEMORANDUM OPINION AND ORDER Cameron Brown Company (CBC) and Fi-nanceamerica Mortgage Services Company (FMSC) jointly filed the within motion seeking relief from the stay of 11 U.S.C. § 362 and, further, objected to the Debtors’ Chapter 13 Plan upon other grounds. Upon hearing of the motion for relief from the stay and confirmation of the Debtor’s plan to provide adequate protection to the secu...
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DECISION FACTS Facts can be no better stated than the Joint Stipulations. Therefore, a copy is attached as follows and incorporated herein. LEGAL ISSUES Are set out with Stipulations and Facts and incorporated herein be reference. 1. Defendant, Gilíes I. Madore, purchased a 1979 Chevrolet Monza in Canada about November 5, 1979. 2. Defendant executed a promissory n...
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ORDER ON MOTION TO AVOID FIXING OF LIEN At a hearing in the above-styled case upon the debtors’ motion to avoid the fixing of a lien in a 1978 Dodge pickup truck pursuant to 11 U.S.C. § 522(f)(2)(B), and the debtors’ objection to the abandonment by the trustee of said automobile, at Gadsden, Alabama, on May 30, 1984, with only the debtors’ attorney, the attorney for the Alabama City Bank, and t...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on the Motion of Billy J. Barlow (Barlow) and Patricia L. Hubbard (Hubbard) for relief from the automatic stay of 11 U.S.C. § 362. Barlow and Hubbard wish to proceed against Dred Scott Phillips, the debtor, in a state court action to perfect their right to receive payment from the Colorado Real Estate Recovery Fund. 1973 C.R.S. ...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on plaintiff’s Motion for Relief From Permanent Injunction provided in 11 U.S.C. § 524(a)(2). Plaintiff (Shade) seeks relief so that she might proceed with a state court action against the debtor (Fasse) who has received a discharge. The purpose of the action is solely to perfect Shade’s rights to collect from the Colorado Real ...
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MEMORANDUM OPINION The above matters were consolidated for hearing with respect to the good faith of proposed Chapter 13 Plans. Each of the plans proposes to pay unsecured creditors minimal payments of $1.00 each over a period of sixteen (16) months. The primary reason for selecting a Chapter 13 approach as opposed to Chapter 7 is to spread the attorney’s fees over the sixteen month perio...
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ORDER GRANTING MOTION TO DISMISS These cases came before the Court upon Florida National Bank, N.A.’s (“FNB”) motion to dismiss each based upon the debtors’ lack of good faith in filing their petitions under Chapter 11 of the Bankruptcy Code. Although the cases have not been substantively or administratively consolidated, on May 24 and 25, 1984 the Court heard and considered argument and ...
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ORDER On December 1, 1983, Theo D. Mann (“Mann”), as trustee for the Chapter 7 debtors, Nilet Lee and Mary Willene Harley, commenced the above-referenced adversary proceeding to recover a preferential transfer. The defendant, General Motors Acceptance Corporation (“GMAC”), filed an answer and counterclaim for relief from the automatic stay on December 16, 1983. Thereafter, Mann filed a mo...
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MEMORANDUM OPINION AND ORDER This matter coming on to be heard upon the Application of the Official Unsecured Creditors’ Committee [the Committee], represented by Nachman, Munitz & Sweig, Ltd., to employ additional counsel, and upon the responses to such Application filed by Manufacturers Hanover Trust Co. and Citibank, N.A., represented by Levy & Erens; the Official Creditors’ Committee ...
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ENTRY This matter comes before the Court on the Complaint of the plaintiff, the United States of America, objecting to the discharge or to determine dischargeability of debt filed August 26, 1983. On September 26, 1983, the defendant, Daniel E. Ortman, filed a Motion to Dismiss, claiming that the government’s objection had not been timely filed. The plaintiff filed its Brief in Opposition to th...
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MEMORANDUM OF DECISION This matter comes before the court upon the filing by Super Concrete Corporation (“Super Concrete”) of a complaint to determine the dischargeability of a debt owed Super Concrete by Archie K. Shipe and Julia Ann Shipe (“the Shipes”), the debtors herein. After hearing and upon submission of briefs, this court makes the following determination. K & J Associates (...
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OPINION On March 16,1978, Rockwell International Corporation (Rockwell) entered into a contract to sell a Miehle Roland Four Color Offset Press to Feder Litho-Graphic Services, Inc. (debtor) for $381,970.1 Feder Li-tho-Graphic Services made a down payment of $50,000, and granted Rockwell a security interest to secure the payment of the balance due under the contract. The contract provided for som...
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On Complaint to hold debt nondischargeable pursuant to 11 U.S.C. sec. 523(a)(6) The Plaintiff in this complaint charges that a $21,170.71 default judgment obtained against the Debtor in the Superior Court of New Jersey should be excepted from discharge under section 523(a)(6) of the Bankruptcy Code for the reason that the judgment was based upon a “willful and malicious” assault and batte...
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ORDER This Court entered an Order on May 31, 1984, fixing the claim of Job Service of North Dakota in the above-entitled bankruptcy proceeding at the sum of $9,566.35. A dispute remains between the parties as to whether the claim of Job Service of North Dakota is an unsecured or priority claim. Both parties have submitted their respective arguments on this matter by way of written brief. DISC...
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OPINION AND ORDER This matter is before the Court upon plaintiff’s complaint to compel turnover of property and for judgment and upon defendants’ motions to file an amended answer and to reopen the case to accept additional evidence. Upon consideration of the pleadings, the record of this case, and the stipulations and memoranda submitted by the parties, the Court will grant judgment for ...
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*576 OPINION In resolving the three above captioned adversary proceedings, we face several issues, the most prominent of which arises where the debtor has satisfied an antecedent debt to a noninsider more than ninety days but less than one year prior to the filing of the petition, which satisfaction has the effect of releasing an insider, who was a surety on the debt, from his contingent liab...
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MEMORANDUM The Bankruptcy Code, 11 U.S.C.A. § 523(a)(8) (1979), excepts from discharge any debt for an educational loan made, insured, or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or a nonprofit institution of higher education, unless (B) excepting such debt from discharge under this paragraph will impose an undue h...
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MEMORANDUM OPINION On June 13, 1984, the Court held a hearing on the Complaint of Compton Corporation and Gratex Corporation, by and through their duly appointed trustees, seeking preliminary injunctive relief against the United States Department of Energy. At the conclusion of the hearing, the Court entered its oral findings of fact and conclusions of law on the record and in open court granting...
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MEMORANDUM OPINION On April 4, 1984, this Court conducted an evidentiary hearing on the motion of Walter Kellogg, Trustee in Bankruptcy of Compton Corporation, seeking to subordinate the claim of the United States, Department of Energy (“DOE”) on the ground that it is a claim for a penalty under Section 726(a)(4) of the Bankruptcy Code. In the alternative, the Trustee sought to subordinate the ...
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MEMORANDUM OF OPINION AWARDING SANCTIONS AGAINST DEBTOR AND HIS ATTORNEY FOR FILING MULTIPLE BANKRUPTCY PETITIONS AND ORDER ISSUE The issue before the Court is whether it is appropriate to impose monetary sanctions against the debtor and the attorney who assisted the debtor in filing multiple bankruptcy petitions for the purpose of delaying foreclosure by secured creditors. FACTS The plai...
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ORDER SUSTAINING OBJECTION TO DEBTORS’ EXEMPTIONS The trustee in this case filed an objection to the debtors’ claimed exemption in their automobile, asserting that their equity in it was of greater value than they claimed, and that therefore the amount exceeded the exemption limit. A hearing was held on February 27, 1984 but additional facts were raised by the debtors in a memorandum subsequent...
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ORDER This ease is before the Court on the objections by the debtor, Morrison Jarrell Simms (“Debtor”), to Claim No. 5 and Supplemental Claim No. 9 filed by the Internal Revenue Service (“IRS”). Following a hearing, this matter was taken under advisement. On July 20, 1981, the Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. Pursuant to Bankruptcy Rule 302(e), as in...
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*866 FINDINGS OF FACT The debtor filed an amended Chapter 13 plan of reorganization. Objections to the confirmation of the amended plan were filed by Central Bank, Jacks on Parish Bank, and Louisiana Bank of Ouachita Parish. Central Bank’s objection appears to be satisfied by the filing of a modified Chapter 13 plan of reorganization, on April 30, 1984, which plan proposes to “return the Ce...
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ORDER This matter came before the court on the debtors’ motion for an order vacating this court’s order of December 27, 1983 and revoking confirmation of the debtors’ plan. The court’s order dated December 27, 1983 was the final decree in the debtors’ Chapter 11 case which closed the estate. The debtors have been unable to fulfill the requirements of their plan and now seek an order vacat...
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OPINION The first of two issues presented in the controversy at hand is whether we should grant a defendant’s motion to dismiss an interpleader action commenced under Fed. R.Civ.P. 22. Only if we deny that motion must we reach the second issue which is whether we should issue an injunction barring the defendants from continuing or commencing suits against the plaintiffs surety for payment under a...
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*967 DECISION AND ORDER ON MOTION TO REMAND AND ON APPLICATION FOR REMOVAL AND TRANSFER On June 10, 1983, Osage Exploration Company (Osage) filed a voluntary petition for reorganization under Chapter 11 of the bankruptcy Code (Code) in the Bankruptcy Court for the Northern District of Oklahoma. Osage is engaged in the exploration for and the development of oil and gas produc...
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OPINION AND ORDER This matter is before the Court upon the motion of the defendant Veterans Administration for summary judgment as against plaintiffs’ complaint to avoid an allegedly fraudulent conveyance pursuant to 11 U.S.C. § 548(a)(2). The Court holding that the consideration received for the property at a non-collusive and regularly conducted judicial foreclosure sale was “reasonably...
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OPINION The predominant issue in the controversy at bench is whether a creditor has violated the Truth In Lending Act (“the TILA”), 15 U.S.C. §§ 1601-1667e, due to alleged shortcomings in the disclosure statement issued by the creditor. For the reasons stated herein, we find that the debtor has established her entitlement to relief under the TILA. The facts of this case are as follow...
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OPINION The issue at bench is whether a debt incurred by a debtor through the use of his credit cards within seven months preceding the filing of his petition for relief under chapter 7 of the Bankruptcy Code (“the Code”) is nondischargeable pursuant to § 523(a)(2)(A) of the Code. We conclude that, under the circumstances of this case, the debt is nondischargeable. The facts of the c...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO AMEND At issue is whether a creditor who has filed a timely objection to the debtor’s discharge under 11 U.S.C.A. §§ 727(a)(2)(A), 727(a)(2)(B), 727(a)(3), and 727(a)(5) (1979) may amend its complaint after the expiration of the deadline for filing such a complaint by asserting as additional grounds 11 U.S.C.A. §§ 727(a)(4)(A) and 727(a)(4)(C)...
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*678 FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on to be heard on February 16 and 17, 1984, before the Honorable Clive W. Bare, United States Bankruptcy Judge. Upon consideration of the entire record, including the pleadings, briefs, testimony of witnesses, exhibits, and statements of counsel, the Court makes the following findings: FINDINGS OF FACT ■ On Fe...
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MEMORANDUM DECISION The debtor filed his chapter 7 petition July 15, 1982. He scheduled among his assets a “part ownership in Pullman sleeping car ... and Pullman shell,” which he valued at $200.00, and claimed as exempt under 11 U.S.C. § 522(d)(6). 1 He failed to schedule his part ownership of a Jordan Spreader, a failure he later attributed to oversight, and to the minimal va...
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*855 FINDINGS AND CONCLUSIONS BY THE COURT ON MOTIONS FOR A CHANGE OF VENUE Introduction —■ Each of the cases styled as above was commenced by a voluntary petition filed, under 11 U.S.C., chapter 11, in this Court and continues to be pending here under said chapter 11. In the order listed above, the petitions were filed in succession, on March 13, 14, and 15, 1984. Th...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Cause having come before the Court upon a Complaint to Direct Turnover of Property and the Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses, considered the Complaint and the arguments of counsel, reviewed the file and being otherwise fully advised in the premises, does hereby make th...
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MEMORANDUM Before the Court is the debtor’s Motion for Issuance of an Order approving the Debtor’s Notice of Intended Sale. The debtor requests an Order because the purchaser’s lending institution is insisting on a judge’s approval of the sale for recording purposes. The 1978 Bankruptcy Code radically changed the procedure for selling property of the estate. 1 It is now 19...
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MEMORANDUM OPINION This case came before the court for a hearing on April 2, 1984 upon the Motions to Dismiss this Chapter 11 proceeding filed by Ashuelot National Bank and L.F. Trottier and Sons, Inc., secured creditors, and upon a number of complaints seeking relief from the automatic stay filed by those creditors, and by various additional creditors, in separate adversary proceedings in this ca...
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OPINION Facts and Procedural History 1. Debtors, Charles R. Pearl, individually, and Shore Sites, Inc., a corporation of the State of New Jersey, both filed Petitions under Chapter XI of the Bankruptcy Act on September 19, 1974. 2. Richard T. Kinnear, Esquire, was appointed as receiver in both matters, duly qualified, and is acting as Attorney Pro Se in both matters. 3....
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DECISION AND ORDER The Huntington National Bank [Huntington] objected on October 21, 1983, to the confirmation of the Chapter 13 debtors’ proposed Plan, alleging that the Plan had not been proposed in good faith, as required by 11 U.S.C. § 1325(a)(3). Upon an Amended Complaint filed January 11, 1984 the matter was heard on March 13, 1984. Huntington and debtors, Dennis L. Rose and Di...
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MEMORANDUM DECISION Plaintiffs-debtors, Philip and Betty Jo Berge (“the Berges”) own a farm known as the Newell farm as tenants in common with Gordon and Ruth Stenoien (“the Sten-oiens”). The Stenoiens hold an 85% interest in Value Enterprises, Ltd. (“VEL”), the defendant. On March 19, 1981, the Berges and VEL entered into a loan agreement drawn up by VEL pursuant to which VEL loaned the Berges $2...
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FINDINGS AND CONCLUSIONS These two consolidated adversary proceedings were filed by the trustee to determine the validity, priority and extent of the lien of the creditor Buntco. The parties previously agreed to the sale of the property in question and it is their respective rights in the proceeds which are now being determined. The two debtors involved, Volpe Enterprises, Inc. and M...
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OPINION In this liquidating Chapter 11 proceeding several issues have arisen relating to the secured claim held by the United States Small Business Administration (“SBA”). The debtor herein, United Puerto Rican Food Corp. (“UPRFC”), the operator of a small supermarket, filed for relief under Chapter 11 of Title 11 on July 9, 1982. At the time it filed its petition it was indebted to the S...
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OPINION Humphreys Pest Control Franchises, Inc. (“debtor”) filed a Chapter 11 petition for reorganization on November 17, 1982. The debtor is a wholly-owned subsidiary of Humphreys Pest Control Company, Inc. (“parent corporation”). A Chapter 11 petition was also filed by the parent corporation on November 17, 1982. The parent corporation operates an insect extermination business. The...
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*248ORDER This matter is before the court on a motion by Peoples Bank seeking relief from the stay pursuant to 11 U.S.C. § 362(d) (West 1979). Peoples Bank has frozen the debtor’s checking account and seeks, pursuant to 11 U.S.C. § 553 (West 1979), to set off the balance of the account in the amount of $596.83. Upon consideration of the statements of counsel, testimony of witnesses, stipulations,...
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*237 FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on to be heard upon an Amended Complaint to recover fraudulent and preferential transfers allegedly made by the Debtor to the Defendants. In lieu of a trial before this Court and pursuant to stipulation and agreement between the parties, this Court considered as the evidence in this cause, AGREED and STIPULATED FACTS filed by the pa...
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MEMORANDUM OPINION ON MOTION TO DISQUALIFY ATTORNEY AS COUNSEL FOR CREDITOR STATEMENT OF THE CASE On October 31, 1983, Debtor William H. Davis, individually and formerly doing business as Davis Electric & Plumbing Supply Co., filed his voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code. On January 23, 1984, Cook Banking Company, Plaintiff, filed a “Com...
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ORDER DISMISSING CASE FOR LACK OF JURISDICTION Kava Bowl, Ltd., (hereafter “Kava Bowl”) an American Samoan corporation, filed a Petition for relief under Chapter 11 on February 17, 1984, with the Clerk of the Bankruptcy Court, District of Hawaii. Kava Bowl was incorporated in American Samoa where it maintains its principal place of business, that of a bowling alley and a snack-shop, and where i...
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OPINION “NEW VALUE” EXCEPTION TO PREFERENCE ACTION Richard Remes, the trustee herein, commenced this adversary proceeding to avoid alleged preferential transfers under 11 U.S.C. § 547(b) made to Gary A. Yeomans. Mr. Yeomans seeks summary judgment on the defense embodied in 11 U.S.C. § 547(c)(4) that he gave “new value” to or for the benefit of the debtor after the alleged preferentia...
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ORDER This matter is before the Court on the motion of the Debtor to reconsider and/or amend an earlier Order of this Court dated April 25, 1984, which found certain transfers to not be preferences under 11 U.S.C. § 547(b). Based on the arguments and affidavits of counsel and the writings contained in the file, the Court hereby makes the following: Findings of Fact 1. Defendants Oredson...
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DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT On August 12, 1982, Lombard-Wall filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1121. Lombard-Wall was in the business of trading, buying, selling and otherwise dealing in government-guaranteed obligations and other money market instruments with major financial institutions. Bankers Trust Company (Banker...
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FINDING AS TO MOTION TO DISMISS Defendants, Ralph J. Dalessio and William F. Stamm, have filed a Motion to Dismiss/Motion for Summary Judgment in opposition to the Trustee’s complaint. The court finds that their motion must be denied. On January 10, 1984, Harold Corzin, the Trustee, filed a complaint against Messrs. Dalessio and Stamm, the debtor, and certain relatives of the debtor. The comp...
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DECISION Plaintiff on November 10, 1983 filed “Memorandum in Opposition of Motion to Dismiss", In the first paragraph it is stated that at the Court Ordered Conference the Defendant raised the issue of whether this Court lacks subject matter jurisdiction and as such, such action was deemed to be a Motion to Dismiss. (This Judge was not present at that conference which had been set for Hearing with...
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MEMORANDUM This case involves the dischargeability of a claim based on the debtor’s personal guaranty of a corporate debt for the lease of a computer. Plaintiff lessor asserts its claim is nondisehargeable because the debt- or obtained the lease through the use of a materially false personal financial statement, 11 U.S.C.A. § 523(a)(2)(B) (1979). Although his financial statement is irrefr...
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ORDER First Interstate Bank of Arizona (“Bank”) alleges the Trustee sold inventory and debtor’s interest in a leased store location in Fiesta Mall for $5,000.00 and $75,-000.00, respectively. It is alleged the Trustee is currently holding over $58,000.00 and the Bank’s secured claim entitles it to the fund, less certain expenditures to be paid by order. The Bank has presented evidence the deb...
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MEMORANDUM OPINION The Plaintiff (Billy Tom Ltd.) is the debt- or-in-possession pursuant to a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Billy Tom Mahaffey, Sr. and Wanda Lee Mahaffey are the sole partners of Billy Tom Ltd., the debtor-in-possession. Mr. and Mrs: Mahaffey were also co-debtors in a separate action, now consolidated herein. Billy ...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the application of NORTHLAKE BUILD *232 ING PARTNERS, an Illinois limited partnership [Debtor], represented by SCHWARTZ, COOPER, KOLB & GAY-NOR, CHTD., for the entry of preliminary injunctive relief pursuant to Section 105(a) of the Bankruptcy Code, against NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY [Respond...
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MEMORANDUM AND ORDER This matter is before the court on the debtors’ (Paving and Excavating) objection to claims for contributions to employee benefit plans filed in this Chapter 11 case by the Trustees of the Midwest Operating Engineers Fringe Benefit Funds (“Midwest”). The parties have agreed to submit the matter to the court and have filed the appropriate memoranda of law. ISSUE ...
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MEMORANDUM AND ORDER This matter is before the court on the motion of the debtor (Nicoll) to dismiss the plaintiff’s (ITT) complaint to determine dis-chargeability of a debt. The complaint alleges that certain corporate debts are non-dischargeable in the debtor's personal bankruptcy pursuant to sections 523(a)(4) and (6) of the Bankruptcy Code. For the reasons set forth in this opinion, t...
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ORDER DENYING REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE This matter came on for hearing on the request of Ford Motor Credit Company (Ford Credit) for determination and payment of administrative expense claim. William C. Hicks appeared on behalf of Ford Credit and James A. Rubenstein appeared on behalf of the debtor. Ford Credit requests that it be paid the amount that its collateral alleg...
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DECISION ON FEE APPLICATION OF RECEIVER Iota Industries, Inc. (Iota) filed its voluntary petition in bankruptcy on July 25, 1977. On July 26, 1977, Robert P. Herzog was appointed receiver. An involuntary petition for reorganization of Iota under Chapter X of the Act was filed by United States Trust Company and Chemical Bank on July 29, 1977. On November 2, 1977, Mr. Herzog was appointed reorganiza...
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OPINION The issues raised by the defendants in this adversary proceeding are so simple as to merit no more than a Memorandum Opinion. This is a chapter 11 ease in which the trustee seeks, under § 542 of the Bankruptcy Code, either to enjoin the defendants from using a parcel of realty allegedly owned by the debtors, or to recover a judgment arising out of a mortgage on said realty, or to permit fo...
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OPINION The issue presented in this case is whether the debt owed by the debtors to Girard Bank is nondischargeable under § 523(a)(2)(B) of the Bankruptcy Code. (“Code”). Upon examination of the evidence produced at trial, we conclude that the debt in question is dischargeable. Although certain documents supplied to the Bank by the debtors during the loan application process containe...
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MEMORANDUM This matter is before the court on a request to confirm the plan of reorganization submitted by the debtors pursuant to 11 U.S.C. § 1129 (West 1979). By agreed order entered on March 7, 1984, a final hearing on Midland Bank & Trust Company’s (hereinafter referred to as “Midland”) motion for relief from the stay pursuant to 11 U.S.C. § 362(d)(2) (West 1979) has been consolidated...
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ORDER This matter is before the court on an application for attorneys’ fees and expenses filed by the debtor’s attorneys, David M. Pack and James P. Wilson (hereinafter referred to as the applicants). An objection to payment of said fees has been made by Southern Sash of Columbia, a secured and unsecured creditor in this case. In seeking compensation, the applicants alleged that their work in...
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MEMORANDUM AND ORDER The Court has for determination the Objection of the Trustee to the homestead exemption claimed by Linda K. Avery, a co-debtor in this proceeding. It is predicated on the allegation that the property in which this debtor claims a homestead “is not in her name.” UNDISPUTED FACTS William J. Avery and Linda K. Avery, husband and wife, filed a Joint Petition for Relief unde...
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MEMORANDUM DECISION This matter is before the court on a motion for approval of attorney fees arising from post-petition services rendered by the debtor’s non-bankruptcy counsel. The trustee who was appointed when this case was converted from chapter 11 to chapter 7 has objected to payment for the unauthorized services performed while the debtor was in chapter 11. The facts are not d...
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In this case, the court must determine whether the refusal of the State of Wisconsin, Department of Transportation (State), to reinstate the discharged debtor’s drivers license in the absence of proof of financial responsibility, as required by section 344.-26, WIS.STAT., constitutes improper governmental discrimination, contrary to 11 U.S.C. § 525. 1 The issue presented is to be dec...
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OPINION An appeal has been taken in this adversary proceeding from a judgment of dismissal, based upon orders of the trial court, partially denying summary judgment to the plaintiffs and denying the motion of the plaintiffs to amend their complaint to add new parties plaintiff on one of their causes of action. We reverse and remand for further proceedings consistent with our decision here...
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MEMORANDUM AND ORDER On May 11, 1984, the Debtors filed a motion for authority to borrow funds and grant a security interest. By the same motion they also sought authority to use cash collateral of $24,162.18. A hearing was held on May 23, 1984, at the conclusion of which the Court authorized the Debtors to incur indebtedness in order to proceed with the 1984 crop season. A ruling on the use of...
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MEMORANDUM OPINION and ORDER This case is before the court on a Motion filed March 13, 1984 by the United States seeking an extension of time for the filing of a proof of claim. The claims deadline in this proceeding was fixed as January 13, 1984, by a prior order of the court entered September 20, 1983. With the motion the United States also submitted a proof of claim on behalf of the Ec...
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OPINION The issue in the matter before us is whether we should grant a creditor’s renewed motion to convert or dismiss a chapter 11 proceeding when the debtor attempts to use that proceeding to affect or modify claims which were to be satisfied under a plan confirmed in its prior chapter 11 case when that prior plan has been substantially, although not fully, consummated. For the reasons stated...
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DECISION Plaintiff Dr. Paul J. Szilagyi has filed a complaint to determine the dischargeability of two alleged debts, pursuant to 11 U.S.C. § 523(a). In Count I, Szilagyi alleges that Edward Lemire, the debtor, willfully and maliciously converted the plaintiff’s personal property in the amount of 112,00o,1 and asks that this debt be held nondischargeable pursuant to 11 U.S.C. § 523(a)(6). In Coun...
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ORDER This matter is before the court on Mid-South Bank and Trust Company’s (hereinafter referred to as “Mid-South”) motion for relief from the stay pursuant to 11 U.S.C. § 362(d) (West 1979) in order to foreclose on its security interest in real property held by the debtor. The parties have stipulated that Mid-South has a secured claim against the debtor in the amount of $1,085,198.13 plus int...
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OPINION, INCORPORATING FINDINGS AND CONCLUSIONS, AND ORDER DENYING MOTION FOR STAY PENDING APPEAL This matter came on for hearing before the Court on June 5, 1984 on the motion of the Debtor for a Stay pending appeal of an order entered by this Court on May 24, 1984 appointing a trustee. The Court, having heard arguments of counsel and the testimony of three witnesses, and having reviewed the p...
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OPINION The issue before the Court is whether and on what terms to continue a preliminary injunction against foreclosure of the debtors’ real property located at 5015 and 5033 13th Place, N.E., Washington, D.C. On January 17, 1983 the debtors obtained a loan from defendant Security Finance Group, Inc. (“SFG”) in the face amount of $65,000, payable in twelve consecutive monthly installment...
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ORDER Upon consideration of the debtor’s motion to avoid preferential transfer, and of the record of this case, the Court finds and concludes as follows: 1. Pursuant to a voluntary agreement for wage allotment between the debtor and the creditor HUD Federal Credit Union (“the Credit Union”), the debtor’s employer *469 transferred to the Credit Union the sum of $25.00 per month during the pe...
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MEMORANDUM OPINION AND ORDER Introduction: The debtor moved for an order authorizing its affiliate, Brent Company, to pur*788chase undisputed and liquidated unsecured claims at forty (40%) percent of the allowed amounts. The motion was supported by the unsecured creditors’ committee, but opposed by the Teamsters’ Union.1 After hearing oral arguments and considering the brief filed by the unsecu...
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DECISION The debtors in these related but unconsolidated cases moved on 6 January, 1984 to dismiss the Chapter 11 case per 11 U.S.C. § 305. This matter was considered at numerous pretrial conferences with all interested parties and at a trial on June 5, 1984. Based upon the evidence adduced, including the case record judicially noticed, the court makes the following findings. Bo...
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MEMORANDUM In this adversary proceeding the trustee seeks to avoid two alleged preferences. 11 U.S.C.A. § 547(b) (1979). The first is the payment of $2,748.30 to an auctioneer for the benefit of defendant Byrd on June 16, 1983. The second is the payment of $510.00 to a bottling company (not a named defendant) over a period of time for soft drinks placed in a vending machine on the debtor’...
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MEMORANDUM OPINION AND ORDER The Plaintiff seeks summary judgment upon complaint seeking nondischargeability of a debt upon which a judgment heretofore was rendered in the cause of action by the United States District Court for this District. The complaint herein seeks nondis-chargeability of the judgment rendered in the District Court upon a cause of action for damages as a result o...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(8), to avoid a judicial lien pursuant to 11 U.S.C. § 522(f)(1), and to enjoin further action by the defendant to sell debtors’ jointly owned real estate pursuant to a creditors bill pending in the Circuit Court of Northumberland County, V...
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MEMORANDUM DECISION AND ORDER William and Linda Doughtie filed their chapter 7 petition on June 29, 1983 and received a discharge on October 11, 1983. At the time of filing they resided in a rental apartment in Stoughton, Wisconsin, and received electric service from the Stoughton Municipal Electric and Water Utilities (“the Utility”). As of June 21, 1983, the Doughties were $85.76 in arr...
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MEMORANDUM OPINION On May 5, 1983 the debtors, Oregon B. Butler, Jr. and Lavelle Butler, filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Schedules were filed May 20, 1983. The disclosure statement and a proposed plan of reorganization were filed on September 2, 1983. The disclosure statement was approved after notice and a hearing as required by 11 U.S.C. § 1125. ...
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ORDER Upon consideration of the motion seeking relief from the automatic stay (11 U.S.C. § 362) filed by Samuel and Rose Cofer, the hearing held on April 26, 1984 and the record of this case, the Court finds and concludes as follows: 1. When the debtor missed two regular monthly deed of trust payments, in December 1983 and January 1984, the mov-ants/secured creditors scheduled a foreclosure s...
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MEMORANDUM OPINION This adversary proceeding comes before the Court seeking a determination the debt due and owing Farmers Home Administration (FmHA) to be nondischargeable pursuant to 11 U.S.C. § 523(a)(6). At issue is whether debtors’ actions constitute willful and malicious injury to the property of the creditor, thereby precluding said debt from being discharged. For the reasons herei...
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MEMORANDUM Before the Court for determination are the debtor’s Motion to Avoid Lien of Barbara Munroe et al and the debtor’s Complaint for Contempt against Barbara Mun-roe et al. The debtor seeks to avoid the lien for condominium common expenses and seeks a judgment of contempt against the trustees for pursuing two actions in state court concerning the lien. The Cour...
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DECISION & ORDER Island Helicopter Corporation, the debt- or, has cross-moved for an order “dismissing and denying” the motion of Beneficial Finance Leasing Corporation (“Beneficial”) under Bankruptcy Rule 7019 which incorporates Fed.R.Civ.P. 19 on the grounds that “several additional parties ... are both necessary ... and indispensable” to the action. Beneficial’s motion seeks an or...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW At issue is whether a quarter horse stallion, originally purchased primarily for the purpose of selling syndicated shares of ownership in the horse and subsequently used for the purpose of providing breeding services for a fee, constitutes either a “farm product” or “equipment used in farming operations” within the meaning of Article Nine of the Uni...
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MEMORANDUM OPINION CASE SUMMARY Certain creditors in this case have moved the court to reconsider its Memorandum Opinion of January 23, 1984. The issue addressed in that opinion and again here is whether certain claims of sheep producers made against the debtor’s estate constitute pre-petition debts deserving unsecured claim priority or whether they constitute post-petition debts des...
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MEMORANDUM AND ORDER ON MOTION TO AMEND COMPLAINT The matter comes before the Court on the Motion of Ford Motor Credit Company (Ford), a secured creditor, to Amend its Complaint to Determine the Dischargeability of a debt. The matter was heard after notice on May 3, 1984. The facts are set forth below. FACTS The Debtors (Gallaudet) filed a joint petition under Chapter 7 of the B...
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ORDER DENYING APPLICATION TO COMPEL ASSUMPTION OR REJECTION OF LEASE New York Deli, Ltd. (“Debtor”) is the lessee of Teruya Brothers, Limited (“Teru-ya”). On August 29, 1983, Debtor filed its petition seeking relief under Chapter 11 of the Bankruptcy Code. On October 11, 1983, Teruya filed an Application to Compel Adoption or Rejection of Lease and on October 13, 1983, Teruya filed a Motion f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW National Safe Center, Inc., dba Commercial Security Products, and Safe Center Hawaii, hereafter “Debtor”, filed a Motion to Compel Custodian to Turn Over Property of the Estate. A hearing was held on May 14, 1984, at which time Herbert Leider, Esq., represented Debtor, Michael Chun, Esq., represented the United States Customs Service, hereafter “Customs S...
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ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION Kona Hawaiian Associates, hereafter “debtor”, a Hawaii partnership and debtor in the instant Chapter 11 proceeding, lodged the instant Motion for Preliminary Injunction on December 30, 1983, along with a Complaint for Injunctive Relief and a Motion for Temporary Restraining Order, all of which seek to enjoin the defendants herein, hereafter “mortg...
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MEMORANDA ON APPLICATION OF 11 U.S.C. § 547(c)(4) On April 6, 1984, the Court confirmed a plan of reorganization in the Columbia Packing Company proceedings. In short, the plan provided for the distribution of all assets to creditors, a proverbial liquidating Chapter 11. Substantially all of the debt- or’s assets were sold by a notice of intended sale on September 14, 1983. Pursuant to the plan...
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OPINION Came on to be heard and was heard the complaint to determine dischargeability of a debt filed by the Plaintiff, Dean Whitter Reynolds, Inc.; answer, affirmative matters, and affirmative defenses filed by the Defendant, James C. Davenport; all parties being represented in Court by their respective attorneys of record; on proof in Open Court; and the Court having heard and considered same, f...
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OPINION Two issues are presented in the controversy at hand, the first of which is whether the postpetition recordation of a covenant that runs with a parcel of realty owned by the debtor is a violation of the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”). The second issue is whether such a covenant must be recorded under Pennsylvania law in order to bin...
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OPINION ON: MOTION FOR SUMMARY JUDGMENT Price Chopper Supermarkets, Inc. (“Price Chopper” or “Debtor”), a discount retail grocer, purchased certain grocery inventory from Alpha Beta Company (“Alpha Beta”), executing a $125,000 promissory note in favor of Alpha Beta on February 19, 1981. To assure payment of this promissory note, Alpha Beta requested and received a $125,000 standby Letter ...
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MEMORANDUM AND ORDER AWARDING SANCTIONS AGAINST LESLIE BEAUMONT AND CARL W. HAYS I BACKGROUND This matter is before the Court on the Application of Sundstrom Mortgage Co., Inc., for sanctions against the Debtor herein and its principals, Leslie Beaumont and Carl W. Hays, for the allegedly frivolous and bad faith filing of the within Chapter 11 bankruptcy petition. This Opin...
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MEMORANDUM OPINION THIS IS a Chapter 7 case and the matters under consideration are two Motions for Summary Judgment, one filed by Jary C. Nixon, the duly appointed and acting Trustee for the estate of James T. and Gloria N. Nichols (Debtors); and the other by the Debtors. While the initial complaint named P.J. Pedone and Company, Inc. as a Defendant, the corporation is not involved in the matter...
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ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION The Trustees of the Estate of Bernice Pauahi Bishop (hereafter “Bishop Estate”) are holders of the fee simple interest and lessors to Kona Hawaiian Associates (hereafter “Debtor”) of that certain leasehold interest upon which Debtor developed and now operates the Kona Lagoon Hotel. In 1972, Hawaii Western Mortgage Corporation in consideration for a $...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the court on the Trustee’s Petition for Examination of Attorney’s Fees. The issue in this matter is whether debtors’ attorneys’ fees are reasonable within the meaning of Sections 329 and 330 of the Bankruptcy Code. FINDINGS OF FACT 1. Debtors, Lloyd and Deborah Smith, filed their voluntary joint petition in bankruptcy p...
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*167 MEMORANDUM AND ORDER ON MOTIONS TO APPOINT EXAMINER BACKGROUND Before the Court is the United States Trustee’s (“Trustee”) motion for the appointment of an examiner filed April 26, 1983. As authority for its motion, the Trustee points to both 11 U.S.C. § 151104(b)(1) and (2). 1 The Trustee moves for the appointment of an examiner in the cases of six of eight ...
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DECISION AND ORDER ON MOTION TO RECONSTITUTE DEBENTURE-HOLDERS’ COMMITTEE On April 15, 1982, Saxon Industries, Inc. (Saxon) filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. Saxon was continued in possession of its property and in the operation of its business pursuant to Sections 1107 and 1108 of the Bankruptcy Code. On or about April 30, 1965, Standard P...
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DECISION AND ORDER ON MOTION TO CHANGE VENUE AND CROSS-MOTION TO APPOINT AN OPERATING TRUSTEE On December 7, 1982, an involuntary Chapter 7 petition was filed against P. Barry Jones (debtor) in this court. *1020 Dorothy Eisenberg was appointed interim trustee and thereafter became permanent trustee. On December 22, 1983 the debtor filed a petition for relief under Chapter 11 of the Bankru...
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OPINION Three predominant issues are presented in the case at bench, the first of which is whether a creditor’s security interests in equipment are unperfected pursuant to 13 Pa.Cons.Stat. § 9103(a)(4) of the Uniform Commercial Code (“UCC”) of Pennsylvania. The second issue is whether we should avoid a creditor’s security interest under 11 U.S.C. § 506 of the Bankruptcy Code (“the Code”) ...
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OPINION AND ORDER FOR CONFIRMATION This case is before the court on an objection to confirmation and motion to dismiss filed by Mrs. Mathilda Gregerson. Mrs. Gregerson contends that the plan was not proposed in good faith and does not afford her the treatment required by 11 U.S.C. § 1325(a)(5) in that it fails to recognize her claim for an equitable lien or a constructive trust in her favor by vir...
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PRELIMINARY FINDINGS AND CONCLUSIONS THIS MATTER was tried on the Debt- or’s Complaint for Declaratory Judgment regarding the nature of the agreement between the Debtor, ASSOCIATED AIR SERVICES, INC., and W.J.C., INC. The issue before this Court is whether the parties entered into an assignment of a Hollywood-Fort Lauderdale Airport lease, or whether their agreement was only for a sublease. The...
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*1019 ORDER Before this court is a motion for a mutual dismissal upon stipulation by petitioning creditor and debtor where petitioning creditor Cameron-Brown Company had brought an involuntary Chapter 7 petition against debtor Roscoe Pickett. No order for relief was ever entered. Title 11 U.S.C. § 303 of the Bankruptcy Code authorizes a creditor to file an involuntary petition under certain c...
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MEMORANDUM OPINION This case was tried before the court upon a “Complaint, for Turnover of Funds” filed herein by the Chapter 7 trustee seeking a judgment against the defendant, Forest Kimball, in the amount of $6,000.00 plus interest at 9% from December 17, 1980 based upon a promissory note payable to Weldpower Industries, Inc. in that amount on that date executed by Kimball. The defendant admits...
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MEMORANDUM A creditor seeks to deny the debtor’s discharge under 11 U.S.C.A. § 727(a)(2)(A) (West 1979). The issues are: (1) whether a testamentary devise is an “interest in property”; (2) whether renunciation of a devise constitutes a “transfer;” (3) whether a “relation-back” provision of state law affects the date of transfer; and (4) whether the renunciation was intended to hinder, del...
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MEMORANDUM OPINION This matter came before the Court upon the filing by the plaintiff, Herman F. Blake, Sr., of a complaint for setoff and for an injunction against the defendant, Homer W. Handy, Jr., from collecting his judgment. The parties submitted the matter to the Court on briefs and after consideration thereof, this Court makes the following findings of fact and conclusions of law....
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT The complaint of the trustee, William J. Rameker, against the debtors, Douglas L. Hollinsed and Rita M. Hollinsed, and against Tina M. Bristol, having come on for trial before the court on the 17th day of May, 1984, after due notice to each of the parties, the court makes the following findings of fact, conclusions of law and its judgment in the...
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ORDER This matter is before the Court on the motion of the trustee, Bob J. Rodgers, and the Small Business Administration (hereinafter referred to as “SBA”) seeking to charge the Federal Land Bank of Louisville (hereinafter referred to as “FLB”) with its share of the reasonable and necessary costs and expenses of a certain sale of real estate. Also before the Court is the motion of FLB fo...
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ORDER Before the Court is a Complaint for a Contempt Citation and Judgment filed on behalf of debtors against Methodist Hospital in Jonesboro, Inc. and Professional Credit Management, Inc. The debtors are represented by Gary E. Johnson, and Methodist Hospital of Jonesboro, Inc. and Professional Credit Management, Inc., (creditor) are represented by R. James Lyons. A hearing was held in th...
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MEMORANDUM DECISION A judgment creditor seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A), (4), or (6) for its judgment in the amount of $55,858. The debtor has answered. The matter was heard on June 5. Plaintiff rests upon the Partial Findings of Fact and Conclusions of Law dated August 15, 1981 and the Final Judgment dated April 10, 1982, entered by Judge Eaton, Chief Judge of the Di...
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MEMORANDUM OPINION This Application for Fees, filed by the Debtors’ attorney and opposed by the Trustee, raises for the first time in this District the question of whether fees and expenses incurred by a Chapter 7 Debtor while defending a Complaint for Determination of the Dischargeability of a Debt are payable from the estate as an administrative expense. The Debtors, Bruce and Pene...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Application of the Midwest Bank and Trust Co. for the Trustee to Transfer Liquor License and/or the Proceeds of the Sale. The parties have agreed that the issues addressed by this Application are primarily issues of law which may be decided by the Court based upon the submission of written arguments. The parties have ...
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MEMORANDUM Ownership of the net proceeds from the trustee’s sale of a tow-motor forklift, the subject of a lease intended for security, Tenn.Code Ann. § 47-1-201(37) (Supp. 1983), is controverted. Because it paid its insured, The Bailey Company (lessor-seller), for the theft loss of the forklift, plaintiff, The Home Insurance Company, claims the proceeds on a theory of subrogation. On beh...
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MEMORANDUM OPINION Robert Porter, debtor, is the part owner ’ and lessor of a building located in Houston, Texas. The building was leased to a business known as The Stone Fox. The State of Texas and the City of Houston, claiming that prostitution was being allowed on the premises, brought a public nuisance civil action in state court against The Stone Fox. It sought to abate the nuisance ...
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MEMORANDUM OPINION The issue to be determined in this case is whether, under Texas law, a debtor has an equitable right to force an equitable lien arising out of a constructive trust to be satisfied first out of the excess or nonexempt portion of a homestead. Findings of Fact and Conclusions of Law, on file herein, are incorporated by reference. This opinion contains additional findi...
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*797 MEMORANDUM OPINION This matter comes before the Court upon the motion of Stewart D. Burton, Dorothy B. Burton, Paul L. Wood and Cheren Wood (hereinafter “movants”) to modify the automatic stay provided in 11 U.S.C. § 362(a) in order to join the debtors as defendants in a pending state court proceeding. A complete review of the record in this case and a weighing of all of the...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT DENYING CONFIRMATION OF PROPOSED PLAN OF REORGANIZATION Debtors Rhinehardt L. and Arlys Knut-son, by Attorney Brent D. Skinner, having filed an Amended Plan of Reorganization (dated April 11, 1984); and Creditors Lentz Farms Inc., and Larry Lentz, by Attorney Peter F. Herrell of Jordan, Herrell & Thiel, having filed an Objection ...
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MEMORANDUM OPINION This case was initiated as a complaint alleging non-dischargeability of a debt under 11 U.S.C. § 523(a)(2)(B). A trial was concluded on April 4, 1984, and the parties, at the request of the Court, have submitted post-trial memoranda. The plaintiff-creditor must demonstrate, in order to prevail on this claim, that the defendant-debtor obtained money from the plainti...
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*464 ORDER DENYING OBJECTIONS TO CLAIMED EXEMPTION A creditor and the trustee have objected to the debtor’s claimed exemption of an annuity contract worth $98,477.14. (C.P. Nos. 11 and 15a). The matter was heard on May 24. The relevant facts are simple and clear. Under the terms of the annuity contract provided for him by his law firm, the debtor had, on the date of bankruptcy and at all time...
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FINDINGS OF FACT The issue before the Court is whether an outside salesman, who was not subject to the control of the employer now in bankruptcy, is entitled to a priority claim under 11 U.S.C. Section 507(a)(3). The claimant, Rick Hudson, did business as Pacesetter Manufacturing Housing. Mr. Hudson conducts his own company, which is in the business of selling mobile homes, called Pacesetter ...
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MEMORANDUM AND ORDER RE: FINAL ALLOWANCES Before the Court are the final fee applications of the various professionals who have rendered services in this reorganization proceeding. After appropriate notice, hearings on these applications were held on March 27 and May 31,1984. Three objections to the application of Hanify & King, debtor’s counsel, were originally filed, but the object...
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MEMORANDUM OPINION AND ORDER This matter is before this Court pursuant to Plaintiff, Employes’ Credit Union’s Objection to Homestead Exemption claimed by the debtor/defendant. Suggestions were filed by both parties. On December 9, 1981, Robert Gilliland, debtor/defendant, and his wife, Gloria Gilli-land, entered into a Property Settlement pursuant to their marital dissolution proceedings. In para...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ALLOWING THE CLAIMANT’S CONTESTED CLAIM AS A PRIORITY EXPENSE OF ADMINISTRATION IN THE SUM OF $5,900.00 Three claims have been filed against the within bankruptcy estate by H.T. Poindex-ter & Sons Merchandising Company. The first claim was filed on May 31, 1979, for the sum of $251,674.60, the amount of the then remaining rent payments under...
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DECISION ON COMPLAINT OF LINCOLN FIRST BANK, N.A. FOR DENIAL OF DISCHARGE AND DIS-CHARGEABILITY. The debtor’s unsuccessful gamble in the purchase and sale of stock options resulted in a substantial deficiency owed to the plaintiff bank’s discount brokerage department, which the debtor could not meet short of bankruptcy. The plaintiff bank responded to the debtor’s Chapter 7 petition with ...
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OPINION The issue before us is whether we should approve the debtor’s application to employ the chief executive officer of a chapter 11 debtor on the terms set forth in said application. For the reasons stated herein we will authorize the employment but reduce by one-third the individual’s proposed salary- The facts of this case are as follows: 1 In 1978 Robert Barry (“Bar...
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OPINION The issue at bench is whether we have jurisdiction to entertain the creditors’ involuntary petition and enter an order for relief under chapter 7 of the Bankruptcy Code (“the Code”), in light of the Supreme Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). For the reasons expressed herein, we conclude that ...
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OPINION The issue before the bench is whether we should grant a creditor’s motion for relief from the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”) to permit that creditor to continue prosecuting a civil action against the debtor and a third party. For the reasons expressed below, we will grant the motion. The facts of this case are as follows:1 Prior to the fil...
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OPINION The threshold issue presented in the motions for summary judgments filed by the Attorney General of the State of Maryland (“the Attorney General”) is whether he has standing to litigate the dischargeability of certain debts owed to residents of that state. We hold that the Attorney General has standing to bring such an action under the facts of these cases. In light of the st...
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MEMORANDUM DECISION The facts of the instant matter are not in dispute. Corsica Enterprises, Inc. (debtor), executed a promissory note and security agreement in favor of the United National Bank (bank), Canistota Branch, in the amount of $237,000.00 on March 1, 1979. The bank filed a financing statement with the South Dakota Secretary of State covering “[a]ll contract rights, accounts rec...
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MEMORANDUM AND ORDER Federal Deposit Insurance Corporation (“FDIC”) objected to the noticed intention of the trustee in this Chapter 7 case to abandon a portion of an account receivable to a creditor, J & J Steel and Supply Company (“J & J Steel”). The following summary constitutes findings of fact and conclusions of law after nonjury trial. The facts substantially are uncontrovert-e...
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MEMORANDUM OPINION ON MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION CASE SUMMARY This case presents the question of whether or not a school district is a “governmen *783 tal unit” within the meaning of 11 U.S.C. § 106(c), and, if so, whether such “governmental unit” is subject to the jurisdiction of this court in an adversary proceeding brought by the trustee...
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MEMORANDUM OPINION J.F. Toner and Sons, Inc. (Debtor) is an incorporated dairy farming operation. The Debtor filed a Chapter 11 petition on February 23, 1983. Nearly a year after the filing, no accepted plan of reorganization had been filed by the Debtor. Pursuant to 11 U.S.C. § 1121(c), several creditors joined in formulating a creditors’ plan. This plan was filed on March 6, 1984, ...
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MEMORANDUM OF OPINION LIFTING THE AUTOMATIC STAY This matter is before the Court upon the plaintiffs request for relief from the automatic stay on the ground, inter alia, that the Chapter 11 case was filed in bad faith. The facts of this case present the classic circumstances constituting a bad faith filing. FACTS The property in question consists of three units of a nine u...
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MEMORANDUM AND ORDER RE: MOTION FOR RELIEF FROM STAY I. ISSUE This proceeding raises the issue of which provision of the Bankruptcy Code applies to the running of a law day established by a Connecticut state-court judgment of strict foreclosure of a judgment lien when a chapter 13 petition is filed prior to the arrival of the law day. Since, under the framework of the Bankruptcy...
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Findings of Fact, Conclusions of Law and ORDER re: Motion to Modify Stay The matter before the Court is a Motion to Modify Stay filed by James J. and Arlene A. Bader (Baders). Attorneys George G. West and Steven C. Jayne represented the Debtor and Larry G. Gutz represented the Baders. Being fully advised and pursuant to F.R.B.P. 7052, the Court now makes its Findings of Fact, Conclusi...
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MEMORANDUM OPINION This matter comes before the Court on the trustee’s motion to disallow the secured claim of General Motors Acceptance Corporation to a 1979 Oldsmobile owned by the debtor on the petition date, to compel an accounting of any proceeds received by GMAC from the sale of said vehicle and a turnover of such funds to the trustee. The relevant facts may be summarized as follows. GMAC an...
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MEMORANDUM OPINION In their Complaint, Plaintiffs, Stuart Leventhal and Julie Leventhal, seek a determination that certain alleged indebtedness owed by Defendant, David O. Guthrel, is nondischargeable under section 523 of the Bankruptcy Code. The alleged indebtedness stems from a contract between the parties in which Plaintiff, Stuart Leventhal, agreed to purchase a house under construction by ...
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*141 ORDER Before the court is the application for fees and expenses filed by attorney Daniel L. Wentz, counsel for the Debtors, brought pursuant to section 330 of the Code. Counsel filed his application on April 13, 1983, seeking total fees and expenses of $51,-376.97 ($48,987.00 fees and $2,389.95 expenses) which after adjustment for a retainer of $12,000.00 and additional sums...
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FINDINGS OF FACT POLLY S. WILHARDT, Bankruptcy Judge. A. 2710 Edison/2711 Side Street I. The minimum amount owed the mov-ant, Oregon First Bank (hereafter Bank) by the debtor-in-possession (hereafter Petersen) to June 1, 1984 is $55,763.00. This figure includes the stipulated claimed amount of $50,042.00 as of February 1, 1983 plus 10% interest on the debt principal alone from Fe...
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MEMORANDUM AND ORDER The debtor-in-possession, Gibson Distributing Co., Inc. (“Gibson”) challenges the proof of claim filed by Chuck Haynie (“Haynie”). The amount of the claim is not contested. However Haynie contends that the claim should be allowed as an administrative priority claim or, in the alternative, as a secured claim while Gibson argues that the claim should be allowed as an unsecure...
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*923 MEMORANDUM DECISION Upon consent of the parties and in recognition that no facts are in dispute, this contest over the debtor’s claim to a homestead exemption is submitted to the court on briefs. The facts are summarized below. Prior to their divorce, the debtor and his former wife had resided together in Mt. Horeb, Wisconsin. Sometime before his wife petitioned for divorce on October ...
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*154 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION TO LIFT STAY; AND ORDER On March 26, 1984, the County of Hawaii (“County”) filed a Motion for Relief From Automatic Stay. A preliminary hearing was held on April 3, 1984. By stipulation, the final hearing was held on May 8, 1984, at which time Alan Okamoto, Esq., represented the County and Paul Mark Clark, Esq., represented Rule, Ltd. (“...
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MEMORANDUM OF DECISION This matter comes before the court upon the motion of the trustee, Arthur D. Webster, for an order assessing costs and damages against Maurice Parrish. The source of the trustee’s claim is that he filed a notice of private sale for substantially all of the assets of the estate of the debtor, 1801 Restaurant, Inc., and the sale was delayed by a series of spurious objections,...
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MEMORANDUM OF DECISION Thomas Ewell Riggin filed a voluntary petition under Chapter 7 of the Bankruptcy Code on February 10, 1984. He and his spouse, Deborah Ann Riggin, had previously filed a Chápter 11 proceeding on April 5, 1983. That proceeding had been dismissed by Judge Schneider on January 6, 1984, on debtors’ motion. The counsel for Mr. Rig-gin in the previous Chapter 11 and in th...
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MEMORANDUM AND DECISION In this case, a Chapter 13 petition was filed after a Chapter 7 discharge but before the Chapter 7 case was closed. The attorney for the bank has moved to deny confirmation; dismiss or convert the plan; or in the alternative for an Order vacating the automatic stay. The Chapter 13 trustee moved the Court to dismiss the Chapter 13 or in the alternative consolidate it with...
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OPINION This is an adversary proceeding brought by the Debtor-in-Possession, P.M.R.C. Corporation (“PMRC”), against Crescent Jewelry and Rare Coin Company, Inc. (“Crescent”) to recover a preference. FINDINGS OF FACT PMRC is engaged in the business of refining and selling gold and precious metals. Crescent is one of its creditors. Answer, par. 4. Crescent is located in Scotsdale, Arizona. Around F...
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FINDING AS TO SALE AND AS TO MOTION FOR RELIEF FROM STAY This matter brings various parties before the court in a controversy over the disposition of certain real property. The property in question, hereinafter referred to simply as “the property” is located at 9945 Pebble Beach Cove, Remindersville, Ohio. It is the residence of the. debtors, John P. and Elizabeth A. Vieland. Roger F...
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OPINION AND ORDER This matter came on for trial upon the Trustee’s Complaint for Turnover of two insurance policies with the Metropolitan Life Insurance Company in the name of James Phillips, Jr. The Court finding the Trustee holds such policies subject to a resulting trust in favor of Shirley Ann Coulter, the Trustee’s complaint is dismissed with prejudice. FACTUAL BACKGROUND The Debtors, James P...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Complaint to Determine if Property is subject to Stay, and if so, Relief From Stay. The parties have agreed that the issues raised by the Complaint would be submitted to the Court in the form of written argument. Each of the parties have filed their arguments and has had the opportunity to respond to the arguments raised b...
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DECISION The debtor has filed a motion to avoid a judicial lien which he alleges impairs an exemption to which he would have been entitled under 11 U.S.C. § 522(b) and (d), and Citizens Trust Co. (Citizens), the lien-holder, objects on the ground that “the debtor has failed to establish that the lien impairs the exemption” to the extent claimed by the debtor. Because the debtor may avoid a judi...
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MEMORANDUM OPINION This case arises upon the motion of First Virginia Bank (Bank) for relief from the stay of 11 U.S.C. § 362. The Bank has a nonpossessory, nonpurchase-money lien on the Debtors’ firearms. Richard Wetzel, Jr. and Carol L. Wetzel (Debtors) claimed the firearms as exempt property in their homestead deed under Virginia law. They oppose the Bank’s motion for relief because they c...
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ORDER GRANTING MODIFICATION OF STAY THIS CAUSE came on to be heard upon the motion of Keystone Center, Inc., pursuant to Bankruptcy Rule 4001 et seq., seeking relief from the automatic stay imposed by Section 362 of the Bankruptcy Code, to permit Keystone to go forward with the eviction proceeding against the Debtors now pending in the Circuit Court in and for Dade County, Florida, Case No....
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OPINION Ralph C. Sutro Co. (“Sutro”) has applied for relief from the automatic stay imposed by 11 U.S.C. § 362 to remove a cloud on title to certain property located at 212-17 112th Road, Queens Village, New York. This property, which is claimed by the debt- or, Robert J. Ellis, as his property in his petition, filed on April 4, 1984, was sold at public auction pursuant to a judgment of f...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for Relief From Stay filed by the Citizens National Bank of Norwalk, one of the major creditors in this case. The parties have agreed that the issues ad *59 dressed by the Motion are primarily issues of law which may be submitted to the Court upon a set of stipulated facts and the written arguments...
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ORDER RE: MOTION TO ABANDON PERSONAL PROPERTY This Chapter 7 case is before the Court pursuant to the motion of Lebanon Production Credit Association (“LPCA”) to require debtors’ trustee to abandon any interest he may have in certain payments the debtor received or will receive as a participant in the U.S. Department of Agriculture’s Payment-In-Kind (“PIK”) and cash diversion programs. ...
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MEMORANDUM AND ORDER The First State Bank, Monahans, Texas, (“Bank”) and Kenneth D. Holt, Trustee in *133 Bankruptcy for the estate of Larry McDaniel, debtor (“Trustee”) are contesting over an Individual Retirement Account (“IRA”) in the approximate amount of $1,500.00. The following summary constitutes findings of fact and conclusions of law after nonjury trial on May 16, 1984. The facts s...
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MEMORANDUM AND ORDER AS TO SUBJECT MATTER JURISDICTION This matter comes before the Court on the Objection of the Defendant to the jurisdiction of the Bankruptcy Court to determine the issues raised by the Complaint of the Plaintiff in an adversary proceeding. The Plaintiff seeks to recover damages arising from the alleged breach of a settlement agreement entered into between the Plaintiff and the...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW Defendant, Capital Bank, submits the following statement of the material uncon-troverted facts which are undisputed herein by either party, and defendant’s proposed Conclusions of Law. STATEMENT OF UNCONTROVERTED FACTS 1.TR-3 Industries, Inc. and TR-3 Chemical Corporation (jointly and severally the “Debtor”) on August 27, 1972 filed a voluntary petit...
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MEMORANDUM DECISION The plaintiff creditor, holding a 1982 Alabama judgment against the debtor in the amount of $44,644, seeks exception from discharge for its claim under 11 U.S.C. § 523(a)(2)(B). The debtor has answered. The matter was tried on May 1. In 1980, a corporation dominated by the debtor gave a $30,000 check to a third party, Shackelford. When the check bounced, Shackelford was fo...
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MEMORANDUM OPINION ON COMPLAINT TO AVOID PREFERENTIAL TRANSFERS STATEMENT OF THE CASE On September 3, 1981, Georgia Steel, Inc., d/b/a Eastern Crane & Equipment, d/b/a Plate Services, d/b/a Georgia Structural, and d/b/a Quickwork, Debtor, filed with this Court its petition under Chapter 11 of the United States Bankruptcy Code. On October 29, 1982, Debtor’s Chapter 11 case was convert...
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MEMORANDUM OPINION This ease is before the court on the motion of the trustee for summary judgment against the Internal Revenue Service and International Business Machines Corporation and on the motion of the United States of America for summary judgment against the trustee. In order to rule on these motions, the court must determine whether, as a matter of law, an account receivable levied on ...
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OPINION The question presented is whether the lease involved is a lease or a security agreement. The crucial facts are not in dispute. On November 29,1978, Michigan Carbonic Company (plaintiff) entered into an agreement with Anton’s Lounge & Restaurant, Inc. (debtor) for the lease of a com *135 plex beverage dispenser to be used in the debtor’s business. The lease was to...
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ORDER A trial was held before the undersigned on May 22, 1984, on the complaint of Associated Dry Goods Co. d/b/a Powers Department Stores (Associated) seeking a determination under 11 U.S.C. § 523(a)(2)(A) of nondischargeability of a specific debt owed Associated by the debtors. Based on the evidence presented at the trial and the briefs and arguments of counsel, the Court finds the following:...
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ORDER ALLOWING LIMITED USE OF CASH COLLATERAL BY DEBTOR The above-captioned matter came on for hearing on the motion of the Debtor for *525 use of cash collateral pursuant to 11 U.S.C. § 363(c)(2). For the reasons outlined below, I am allowing a limited use of cash collateral by the Debtors. Facts 1. The Debtors filed a petition in bankruptcy under Chapter 11 of...
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OPINION This adversary proceeding came on for trial on the filing of the amended complaint by the Plaintiffs, Jeffrey A. Levingston, Trustee, and Lonoke Production Credit Association; all issues being joined by the filing of separate answers by all named Defendants, Vernon C. Hammett, Jr., Annette Fore Hammett, Dan F. Hammett, Anne S. Hammett, Avondale Arms Apartments, Inc., and Bank Sale...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER VACATING JUDGMENT OF JULY 7,1982, AND FINAL JUDGMENT AWARDING PETITIONER THE SUM OF $4,283.48 Presently pending before the court is the motion of the respondents to set aside a judgment formerly issued by this court for the petitioner and against the respondents in the sum of $13,276.14. The judgment was issued after a hearing which was held in ...
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DECISION & ORDER Borlan Industries, Inc. (“Borlan”) requests, pursuant to Rule 59 of the Federal Rules of Civil Procedure, made applicable by Rule 9023 of the Rules of Bankruptcy Procedure (“Rules”), that this Court reconsider its order holding Borlan in contempt *132 for failing to attend at the trial of this matter as commanded by subpoena. In conjunction with the tria...
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MEMORANDUM OPINION This matter comes on to be heard upon the defendants’ motion for summary judgment. The plaintiff filed a petition under Chapter 11 of the Bankruptcy Code on March 8, 1982. The plaintiff-debtor filed this adversary proceeding to avoid a transfer of property to the defendants. The plaintiff contends that the transfer should be set aside under the provisions of 11 U.S...
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MEMORANDUM OPINION This matter comes on to be heard upon the plaintiff's Complaint to recover an alleged preferential transfer under the provisions of 11 U.S.C. § 547(b). After considering the evidence, the Court finds the facts to be as follows: FINDINGS OF FACT On March 29, 1983, the Sheriff of New Hanover County, North Carolina, attached certain personal property of the debtor as a res...
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DECISION Heard on the debtor’s motion to adjudge the Secretary of Health and Human Services in contempt for alleged violation of the automatic stay provisions of 11 U.S.C. § 362. The debtor also seeks: an order enjoining the Social Security Administration (SSA) from collecting pre-petition over-payments of Supplemental Security Income (SSI) benefits by taking deductions against post-petit...
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MEMORANDUM AND ORDER The issues before the Court in this case brings into sharp focus a conflict between the equitable principles of the Bankruptcy Code (and the intent of that Code) to enable worthy debtors an opportunity to obtain a fresh start and the strict provision of state law which effectively constitutes a forfeiture in its application. At all relevant times the debtors, William Marb...
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MEMORANDUM OF DECISION (Complaint to Modify the Stay) FACTS The debtors executed a promissory note for $40,000 in favor of Herbert S. McRey-nolds on October 4, 1982. The note was secured by two parcels of real property. One deed of trust secured an unimproved parcel located in Lake Arrowhead, California. The other deed of trust secured debtors residence in Oxnard, California. Debtors defa...
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MEMORANDUM OF DECISION BACKGROUND Credit Managers Association of Southern California (CMA) was employed by the offi *128 cial creditors committee as its secretary. The order authorizing employment made the employment effective December 9, 1982. At the time the application was filed the United States Trustee and CMA had agreed to litigate the issue of whether CMA could be...
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MEMORANDUM AND ORDER ON EMPLOYMENT OF ATTORNEY NUNC PRO TUNC AND ORDER TO SHOW CAUSE WHY MONEYS SHOULD NOT BE RETURNED TO BANKRUPTCY ESTATE I. BACKGROUND On April 19, 1982, David R. Brown (debt- or) signed a retainer agreement with the law firm of James G. O’Rourke (O’Rourke). Under that agreement, the debtor paid O’Rourke a $5,000.00 retainer and O’Rourke agreed to represent th...
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MEMORANDUM AND ORDER DENYING MOTION FOR RECONSIDERATION This matter came on for hearing on March 28, 1984, April 4, 1984 and April 5, 1984 on a Motion for Reconsideration of Order Authorizing Debtor to Reject Lease Agreement filed by Commercial Finance Limited (hereinafter “Commercial Finance”). Based upon the memoranda filed, the arguments of counsel and the pleadings and records filed i...
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ORDER ALLOWING EXEMPTION This matter came on for hearing on various objections to the debtors’ claim of cer *747 tain exempt property. Robert Milavetz and Joan McCormack appeared on behalf of the debtors, Paul J. Scheerer appeared on behalf of the Mayo Clinic and St. Mary’s Hospital, Inc. Joel T. Mitchell appeared on behalf of Norwest Bank Duluth and Thomas F. Miller, the tru...
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MEMORANDUM AND ORDER This matter comes before the court on the motion of the estate of Thomas W. Hair (movant) for relief from the automatic stay pursuant to 11 U.S.C. 1 § 362(d)(1), (2), so *5 that the movant may proceed to enforce its remedies under state law with regard to real estate which was mortgaged to secure two notes held by the movant. 2 FIN...
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MEMORANDUM OPINION This case raises the question of whether a lessor is entitled to adequate protection prior to the debtor’s assumption or rejection of an unexpired lease. This Court holds that a lessor is not entitled to adequate protection. FACTUAL AND PROCEDURAL BACKGROUND The debtor, Sweetwater, is primarily engaged in the business of condominium timesharing. Sweetwater and...
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OPINION In January of 1981, Robert Lee (debtor) entered into a revolving credit plan agreement with the Teamsters Credit Union pursuant to which the credit union agreed to make advances to the debtor from time to time “to be used for provident and productive purposes.” In August of 1981, the debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code. The schedules filed by ...
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MEMORANDUM OPINION Metropolitan Life Insurance Company (Movant) has moved for an order granting it relief from the automatic stays under 11 U.S.C. § 362(a) so that it may foreclose its deed of trust and mortgage on a 664 acre farm belonging to the Debtors and located in both Butler County, Missouri and Clay County, Arkansas. Movant alleges in its motion that Debtors (a) have no equity in the su...
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*437 MEMORANDUM OPINION AND ORDER REGARDING ATTORNEY’S FEES This cause is before the court upon the application of Andrew S. Martin and Herman Wolff, Jr., counsel for the chapter 11 debtor, for the allowance of attorney’s fees in the amount of $40,625 plus expenses of $925.95. The trustee, Algernon L. Butler, *438 Jr., filed an objection on February 27, 1984. A heari...
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OPINION AND ORDER In this proceeding we address the merits of a real estate broker’s application for payment of fees. Perry S. Long (Long), a real estate broker and employee of Stim-mel-Graul & Associates, requests this court to award him a commission in the sum of Thirty-Six Thousand ($36,000.00) Dollars as reasonable compensation for professional services he performed on behalf of the b...
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OPINION The question before the bench is whether we should grant a motion filed by the debt- or, in which the assignee for the benefit of creditors joins, 1 to vacate our recent order granting relief on an involuntary petition against said debtor. The motion is predicated, in part, on the assignee’s allegation that the trustee will not be able to assert successfully the prefere...
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MEMORANDUM OPINION At issue before the Court is whether Defendant, Edwin Jordan Masters’, Counterclaim states a claim upon which relief can be granted. Plaintiff’s Motion to Dismiss asserts that it does not. The Counterclaim is captioned “Abuse of Process". The gist of it is the allegation that the instant non-discharge-ability complaint filed by the Plaintiff is groundless and, along with a pre-...
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MEMORANDUM-DECISION, FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER This matter comes before the Court pursuant to a motion filed by Kenneth C. and Maureen A. Eipp (hereinafter, the Debtors). The Debtors request an order of the Court authorizing them to avoid certain judicial liens, pursuant to § 522(f), Title 11, U.S.C. (hereinafter, the Code), held by Key Bank of Utica (hereinafter, Key) and M...
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MEMORANDUM OPINION This matter came before the Court upon a complaint by Robert A. Canfield, trustee in bankruptcy, to avoid a preferential transfer to Greensville Feed Mill of Empo-ria. This Court held a hearing on the trustee’s complaint on February 2, 1984. After both parties presented evidence and argu *119 ment, this Court took the matter under advisement and the parties filed memoran-da...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on to be heard on Wednesday, April 11, 1984, upon the Adversary Complaint filed by the trustee, to Determine the Amount, Validity, and Priority of a Lien, Declaratory Judgment and Damages, as amended, the Answer and Affirmative Defenses of the Defendant, BANK OF HALLANDALE & TRUST COMPANY (“Bank”), and the Answer, Affirmative Defense...
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MEMORANDUM ON NONDISCHARGEABILITY OF A DEBT This matter came before the Court for trial on April 4, 1984. At that time, the plaintiff and the defendant/debtor stipulated to the facts and agreed to submit the matter to the Court for final determination on briefs. Accordingly, the Court makes the following findings of facts and rulings of law. The facts of this case are not complicated. On August 26...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING APPLICATION FOR CONSOLIDATION OF ENTITIES In the application at bar, a creditor of the debtors in these cases requests that other entities be brought into these bankruptcy proceedings and their assets accordingly collected and distributed to the creditors of the within debtors. 1 By means of its order entered on O...
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MEMORANDUM OPINION This matter came before the Court upon the filing by Borg-Warner Acceptance Corporation (Borg-Warner) of a complaint to determine the dischargeability of a debt owed to Borg-Warner by the debtor, Lawrence Augustus Lipscomb, III. This Court held a trial on the plaintiff’s complaint on January 19, 1984. During the trial the defendant moved to strike the plaintiff’s eviden...
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ORDER ON OBJECTIONS TO EXEMPTIONS This matter came before the Court to consider objections raised to the Debtor’s claimed exemptions. The Court heard the argument of counsel for the parties and has concluded that there are no issues of material fact to be determined and that the claimed exemptions and objections can be decided purely as matters of law. The trustee of these Debtors’ e...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(4) of two claims against the debtors in the aggregate amount of $62,051. A third count was abandoned at trial. The debtors have answered. The matter was tried on May 1. The debtors are computer programmers who were employed in California by the plaintiff in connection with plaintiff’s performance of...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE LIEN PRIORITY STATEMENT OF THE CASE On September 4, 1981, Eulas Harold Hooks and Barbara T. Hooks, Debtors, filed with the Court their petition under Chapter 7 of the United States Bankruptcy Code. On November 3, 1982, the United States of America, United States Department of Agriculture, Farmers Home Administration (FmHA), filed a “Compla...
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The Creditors Committee moves for an order converting this case from Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (the Code) to Chapter 7 thereof pursuant to § 1112(b) of the Code on the ground of continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation. Upon consideration of all the evidence, and having personally ob...
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MEMORANDUM AND ORDER On April 30, 1984, a hearing was held on a Motion For Relief From Stay brought by the United States of America pertaining to certain secured interests of its agencies, of Farmers Home Administration and Commodity Credit Corporation. The Government, by its Motion and pursuant to section 554(b) and section 362(d) of the Code, sought a lifting of the stay with respect to a securi...
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MEMORANDUM The trustee in bankruptcy for Billy Gene Mayfield brought this suit against City Bank and Trust to recover a promissory note and a real estate mortgage that secures the note. The note is payable to Mayfield, and he is the mortgagee. Before Mayfield’s bankruptcy, he maintained a checking account with City Bank and Trust. White Brothers Poultry and Egg Company issued several checks to Ma...
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MEMORANDUM The plaintiffs sued American National Bank and the bankruptcy trustee for Ken Gardner Ford Sales to recover damages for conversion. The plaintiffs alleged that they had a security interest in car parts and used cars owned by a Ford dealership in South Carolina, that the parts and used cars were transferred to the debtor, Ken Gardner Ford Sales, that the plaintiffs’ security int...
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*903MEMORANDUM DECISION Debtor, John W. Alt, Jr., filed bankruptcy under chapter 7 on August 2, 1982. Ronald Paskin was appointed trustee. Defendant, Berning Garage, Inc., (“the Garage”) was listed on debtor’s schedule A-3 as having a possible claim arising from the purchase and return of a car. On August 30, 1982, Mr. Paskin filed a “no-asset report” and the estate was closed on December 29, 1982...
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MEMORANDUM AND ORDER This matter is before the court on the defendant’s “the Village” motion to reconsider the order of February 28, 1984 in which this court denied East Dundee’s motion to vacate an order entered on May 16, 1983. For the reasons set forth herein, the Village’s motion to reopen the judgment pursuant to Rule 59 is denied. FACTS On October 5, 1982, this court ordered the Village to ...
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*708 FINDINGS AND RULINGS ON MOTION TO DISMISS THE ABOVE THREE CASES Counsel, representing the first and second secured creditors on the business real estate and possibly the first or second secured creditors on the personal property used in the operation of the businesses, and, depending upon the value of the security, possibly the largest unsecured creditors seek to have the tw...
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MEMORANDUM ORDER This matter came before the Court on the motions of the debtors for an order allowing them to amend their B-4 bankruptcy schedule of exemptions and for an order dismissing the trustee’s complaint in the above-captioned adversary proceeding. The trustee, in the adversary proceeding, seeks an order authorizing the sale of certain real property, the debtors’ homestead which was cl...
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The debtor in this proceeding, Pittston Stevedoring Corporation (“Pittston”), filed a petition for reorganization under Chapter 11 of the Bankruptcy Reform Act of 1978 (“the Code”). A creditor, The Fringe Benefit Escrow Fund (“FBEF”), is claiming that contributions to an employee benefit plan, which Pittston admits it owes to the FBEF, should be granted priority status under Section 507 of the ...
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MEMORANDUM OPINION Basin Electric Power Cooperative [Basin Electric] filed with the Court on March 29, 1984, an involuntary petition requesting *92 that the Court order Chapter 11 relief for the alleged Debtor, Midwest Processing Company [Midwest]. Midwest filed with the Court on April 6, 1984, a “Motion for Order of Dismissal and Damages,” a “Motion for Judgment” under secti...
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MEMORANDUM DECISION AND ORDER The issue presented in this matter is a narrow one and is most simply stated as follows: in order to perfect a security interest in a mobile home, is the proper method to employ the filing of a lien entry notation on the certificate of title or the filing of a financing statement in the office of the county clerk. The issue is one of first impression in this ...
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OPINION The Chapter 7 trustee brought suit against the appellant James E. Bateman and other individuals to quiet title to a particular piece of real property. The bankruptcy court issued an order granting summary judgment in favor of the trustee and denying Bateman’s cross motion for summary judgment. The court also issued a judgment which stated that Bateman had no right, title or intere...
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This is an appeal from an order of the bankruptcy court sustaining the trustee’s objection to the debtors’ claimed exemptions on proceeds from the sale of their home. *493 The bankruptcy court held that the debtors were not entitled to their claimed exemptions because they failed to reinvest the proceeds from the sale of their homestead into a new homestead within one year as requ...
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The debtor appeals from an order allowing a claim as secured for the value of the *498 collateral. We hold that California’s Un-ruh Act creates an election of remedies so that a creditor loses all significant rights in the collateral by obtaining judgment for the value of household furnishings. We therefore reverse. Background The facts are agreed. The debtor-appellant bo...
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This is an appeal from a judgment that the debtor’s obligation on a stipulated judgment debt is dischargeable. We affirm. The plaintiffs sold the debtor a business, Tax Control Bureau, Inc. The debtor pledged all of the stock of the business to the plaintiffs as security for the sale price. When the debtor failed to pay the purchase price as agreed, the plaintiffs sued in the state court, alleging...
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A California statute, Cal.Civ.Code § 2980.5, provides, in pertinent part, that a contract for the feeding of dairy cattle must be recorded within 10 days after execution with the county recorder where the cattle are then located and also where the feedlot operator resides. Failing such rec-ordation, after possession of the cattle by the feedlot operator, reservation of title or property in the cat...
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MEMORANDUM OPINION This matter comes before the Court on the Complaint of the Trustee, Stephen G. Balsley, for Turnover of the proceeds from the sale of a vehicle. The Debtors, Myron H. Terry and Dorea N. Terry, represented by Attorney Rolland J. McFarland, ask that the proceeds be held to be within their exemptions. The facts are not in dispute: Mr. Terry owns, free and clear of liens, a veh...
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MEMORANDUM OPINION AND ORDER After a hearing on interim compensation for professional persons in this matter, counsel for the Official Unsecured Creditors’ Committee has made application for additional compensation. The regular interim applications for fees have been disposed of and the only question we address is the propriety of the present application 1 based on the facts of...
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OPINION The predominant issue in the controversy before us is whether a debtor may set aside a sheriffs sale under 11 U.S.C. § 548 of the Bankruptcy Code (“the Code”) when that sale occurred within one year prior to the filing of the bankruptcy petition and generated less than a reasonable equivalent value for the property. For the reasons set forth below, we hold that while the sheriffs ...
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OPINION ON COMPLAINT FOR AN ACCOUNTING, DECLARATORY JUDGMENT AND OTHER RELIEF On April 10, 1984, plaintiff filed a complaint seeking to have the AmSouth Bank make an accounting as to certain funds paid to it in satisfaction of a judgment lien obtained by the bank against this debtor, C. W. Norman. In the course of administration of this estate, the trustee has paid various sums to the AmSouth Bank...
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*598 MEMORANDUM OF DECISION FACTS Nolan J. Rayson (“Rayson”) is a licensed contractor. Rayson obtained a contractor’s license bond, as required under California law, from Surety Company of, the Pacific (“Surety”). Rayson signed an agreement to indemnify Surety for any claims made against the license bond. Rayson was sued by a customer in California Superior Court for breach of a construct...
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MEMORANDUM OPINION ON COMPLAINT ON DISCHARGEABILITY THIS IS a pre-Code Chapter VII case and the matter under consideration is a claim of non-dischargeability asserted by Hugh Lee Nathurst, III, (Nathurst) individually and as owner of West Coast Tractor Company and Toreador Inn of Ft. Myers, Inc. (Toreador). The original complaint which was dismissed on a Motion to Dismiss filed by the Defendant...
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ORDER DENYING MOTION TO ALTER OR AMEND ORDER DISMISSING PROCEEDING On May 7, 1984, during hearings on a Motion to Appoint Trustee or in the Alternative to Convert to Chapter 7 or to Dismiss, which motion in its various alternatives was joined by 13 creditors, this Court orally dismissed the instant proceedings due to debtor’s continued failure to comply *597with orders of this Court and provisions...
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MEMORANDUM OF DECISION BACKGROUND Silver Lakes Association asked relief from the automatic stay to collect overdue association fees from the debtors. The fees were assessed pursuant to the Declaration of Covenants and Restrictions of Silver Lakes resort community. The association alleged that it was providing maintenance, security and improvement services to the resort community, and that the deb...
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MEMORANDUM OPINION This trustee’s preference action, brought against the same creditor who had sued the trustee and the debtor two years ago on a related claim, is sought to be dismissed by the creditor Liberty National Bank. The creditor urges the right outcome for the wrong reasons. We dismiss the complaint, on procedural grounds we will explain. In May, 1982, Liberty National sued Tor-eo Equipm...
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MEMORANDUM AND ORDER ON COMPLAINT FOR DECLARATORY RELIEF AND OBJECTION TO PROOF OF CLAIM OF THE TOWN OF MILL-BURY The two questions before the Court are: 1. Whether this Court has jurisdiction to hear and determine the amount of pre-confirmation taxes due and owing the Town of Millbury where the debtor has not exhausted the administrative remedies for appealing tax assessments under ...
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ORDER DENYING RELIEF FROM AUTOMATIC STAY A hearing was held before the undersigned on May 10, 1984 on the motion of Knutson Mortgage and Financial Corporation for relief from the automatic stay to foreclose a mortgage against the debtor. Timothy Hassett of Franke, Riach and Franke, P.A., represented the movant Knutson and Curtis Walker of Walker and Barnes P.A. represented the debtor, Gen...
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DECISION ON ORDER TO SHOW CAUSE TO ENJOIN PERMANENTLY THE MERCHANTS BANK OF NEW YORK FROM SATISFYING ITS JUDGMENT The proceeds from wedding gifts deposited in a joint bank account were levied upon by The Merchants Bank of New York (“Merchants”) in satisfaction of a judgment obtained by Merchants against Stephen G. Glatzer, the president and major shareholder of Emergency Beacon Corporatio...
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DECISION ON COMPLAINT OF BEST MANUFACTURING, INC. TO SET ASIDE TRANSFERS MADE BY THE DEBTORS. Best Manufacturing, Inc. (“Best”), a judgment creditor of one of the related debtors, Daniele Linen Supply, Inc. (“Dan-iele Linen”) in the amount of $67,579.63, brought a state court action against the debtor to set aside certain transfers made by Daniele Linen as voidable under the Uniform Fraud...
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This matter is before the court on the motion for summary judgment filed by Forest Hills Associates (“Forest Hills”), the debtor herein, pursuant to Federal Rule of Civil Procedure 56 and Bankruptcy Rule 7056, and the cross-motion for summary judgment filed by Robert Levy, Stonetree Holding, Inc., and Mehl-Cedar Co., Inc. (collectively “Mehl-Cedar”). The issue presented is whether a debtor is b...
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ORDER On March 28, 1984, C.I.T. Corporation (“CIT”) filed a Motion to Convert Cases to Chapter 7 pertaining to the above-referenced Chapter 11 bankruptcy proceedings. A Motion to Convert to Chapter 7 had previously been filed on February 8, 1984 by I.T.T. Diversified Credit Corporation (“ITT”), which motion was held in abeyance with the consent of the parties-in-interest. The ITT motion relates...
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ORDER These debtors seek to characterize as a “judicial lien,” and therefore avoid, an order of garnishment which occurred eight months before their bankruptcy. If successful, the debtors would realize an additional exemption in the amount of the garnishment, $230.34. We are unable to grant the requested relief, for reasons not addressed in the debtors’ brief. The only relevant facts, which a...
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MEMORANDUM OPINION The United States of America through its agency the Farmers Home Administration of the Department of Agriculture (FmHA) seeks a determination that indebtedness owed it by Defendants and totaling, as of July 25,1983, $117,074.73, is non-discharge-able. Plaintiff alleges that Defendants willfully and maliciously converted its property by selling crops in which it had a security...
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DECISION AND ORDER AFTER TRIAL ON TRUSTEE’S COMPLAINT SEEKING AVOIDANCE OF TRANSFERS ON FRAUDULENT CONVEYANCE AND OTHER GROUNDS I. Introduction In this adversary proceeding, James P. Hassett, the Chapter 11 trustee (“Trustee”) of O.P.M. Leasing Services, Inc. (“OPM”), a computer leasing concern, seeks to recover certain sums from the defendants Far West Federal Savings and Lo...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Plaintiff seeks to have declared nondis-chargeable a debt to Plaintiff which the Defendant-debtor included in his schedules in the sum of $10,000.00. Debtor’s petition was filed July 12, 1983. On August 25, 1980 and for a period of time prior thereto, the Debtor was engaged in the used car sales business in the Village of Herkimer...
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MEMORANDUM OPINION AND ORDER This matter is before the court to consider confirmation of the debtor’s plan of reorganization; No objections were filed and no one opposed confirmation at the hearing in Raleigh, North Carolina on May 2, 1984. For the reasons set forth herein, the plan will not be confirmed at this time, the confirmation hearing will be continued and a show cause order will be ent...
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MEMORANDUM This matter is before us on a Complaint of the First National Bank of Mercer County for relief from automatic stay in order that it may receive payments due the husband-debtor from the New York Life Insurance Company under contract rights he assigned to the plaintiff June 19, 1975 as collateral for indebtednesses he then and thereafter contracted with said bank. The debtor-husband was a...
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MEMORANDUM At issue is whether the debtor, Jerome Thomas Mettetal, a general contractor, owes to either the property owner with whom he contracted for construction of a building or to a supplier of materials on the project nondischargeable debts arising out of false pretenses, false representations, or actual fraud, 11 U.S.C.A. § 523(a)(2)(A) (1979), fraud or defalcation while acting in a...
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*690 AMENDED ORDER The court’s order of May 15, 1984, is hereby amended by substituting the following order. The trustee in bankruptcy for a partnership known as Rubenstein’s recovered in this court a judgment against Charles Lamb holding him liable as a partner for the partnership’s debts. In re Rubenstein’s, 36 B.R. 184 (Bankr.E.D.Tenn.1983). Three of the partne...
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MEMORANDUM AND ORDER Decimal, Inc., a creditor of Vernon Nick-erson and Frances Nickerson, d/b/a Vernon Nickerson Contractors and Panhandle Earth Movers (“Nickerson”) filed motion to dismiss this bankruptcy case pursuant to § 1112 of the Code. Specifically Decimal contends that the debtors have been discharged in bankruptcy in a case which commenced less than six years prior to the filing of th...
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MEMORANDUM OPINION This matter arises out of a motion for relief from the automatic stay imposed under section 362 of the Bankruptcy Reform Act of 1978 (“the Code”). Debtor’s former wife, plaintiff herein, prays for relief from the automatic stay in order to enforce an assessment of attorney’s fees ordered by the Circuit Court of Fairfax County (“circuit court”). A property settlemen...
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MEMORANDUM DECISION The debtors filed their chapter 11 petition with this court on September 6, 1983. At the time of filing they leased approximately 894 acres of pasture and cropland from Donald Peters. The lease ran from February 23, 1983 to March 1, 1984 and called for payments totalling $50,000.00 in unequal installments as follows: $8,000 ■ due February 23,1983 7,000 due Ma...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR REMAND OF REMOVED PROCEEDING I. BACKGROUND Pursuant to 28 U.S.C. § 1478 1 and Fed. R.Bankr.P. 9027, 2 Pine Associates, Inc. (debtor) filed an application for removal to this court of the above-captioned proceeding from a Connecticut superior court. This matter now comes before the court on plaintiff’s, The Aetn...
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MEMORANDUM OPINION AND ORDER The trustee’s Motion for turnover pursuant to § 541 came on for hearing on August 24, 1983. Debtors Carroll Richard and Mona Melva Olson, appeared in person and by their attorney Stanley McAfee. The trustee James E. Kunce, appeared pro se. The trustee’s motion requested the Court to order the executor of the estate of Christina Younger to turn over to the...
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MEMORANDUM ON INTEREST RATES PURSUANT TO 11 U.S.C. SECTION 1129(a)(9)(C) The issue before the Court is the determination of the interest rate to which the Commonwealth taxing authority is entitled, pursuant to 11 U.S.C. § 1129(a)(9)(C). Specifically, Fi-Hi Pizza, Inc. (the “debtor”) filed a plan of reorganization and disclosure statement on November 4, 1983. Debtor’s plan of reorganizatio...
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The United States Trustee for the Southern District of New York (“U.S. Trustee”) seeks an order pursuant to 28 U.S.C. § 1481 holding the Law Clinics of S. Simpson Gray, P.C. (the “Law Clinics”) in contempt for allegedly violating this Court’s Order of September 29, 1983, directing its predecessor, the Law Clinics of Mott & Gray (“Mott & Gray”) not to collect an additional $700 in counsel fees u...
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DECISION AND ORDER (DENYING MOTION TO DISMISS) The bankruptcy case to which this adversary proceeding is related is a Chapter 7 case. Defendant First National Bank of Cincinnati (Bank) moved to dismiss the proceeding for lack of subject matter jurisdiction, or in the alternative has requested that the Court abstain from exercising jurisdiction. We earlier wrote Decision re Jurisdicti...
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CASE SUMMARY In this case the court is asked to determine the requirement of adequate protection of an interest of a creditor holding a claim secured by a car during the period between the filing of a Chapter 13 petition and the effective date of a Chapter 13 plan. 1 FACTS AND PROCEDURAL POSTURE On April 29, 1983, debtors, Tharoll and Judy Hinckley, bought a new 1983 Dodge Omni (the “prop...
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MEMORANDUM AND ORDER The matter comes before the court on the motion of California Chieftain (Chief *876 tain), a secured creditor, for the abandonment of property of the estate. BACKGROUND The debtor, Air Vermont, Inc., (Air Vermont) commenced business in September 1981 as a commuter airline operating from the International Airport at South Burlington, Vermont, to ...
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MEMORANDUM OPINION This matter came before the Court upon an objection by Sylvia T. Bone to the debtors’ claimed exemptions. After a hearing on the creditor’s objection, this Court took the matter under advisement. The parties submitted memoranda of law in support of their positions and after notifying the Commonwealth of Virginia that the constitutionality of a Virginia statute had been ...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a motion for relief from stay by The Community Bank. The debtor timely filed an answer to Community Bank’s motion and on March 1, 1984 this Court held a preliminary hearing on the motion by Community Bank. The relevant facts were agreed to by counsel for each party. However, the debtor argued that no relief could be granted...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONVERTING EACH CASE TO A CHAPTER VII The United States of America Internal Revenue Service, (I.R.S.), represented by James C. Ratzel of the United States Attorney’s Office for the Western District of Wisconsin, having filed Motions to Dismiss or Convert the above captioned matters; and the above named Debtors, represented by Michael D. Schwa...
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MEMORANDUM OF DECISION DENYING DEBTORS’ DISCHARGE INTRODUCTION Tales of debtors operating businesses, filing bankruptcy and immediately re-opening the same businesses have been often told. The matter presently before the Court presents such a course of events and more. On November 2, 1983, the debtors Claude Anthony Sherman and Theresa Rene Sherman filed their joint Chapter 7 petition indicating ...
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ORDER On January 11, 1984, the debtors, Kenneth C. and Lydia S. Moyer, filed a motion pursuant to Bankruptcy Code § 522(f)(2) to avoid a nonpossessory, nonpurchase-money security interest in the debtors’ household goods. The lienholder, Fleet Finance, Inc. (“Fleet Finance”), filed its response on January 23, 1984. Following a hearing on March 6, 1984, this matter was taken under advisemen...
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OPINION The plaintiff-creditor filed a complaint for relief from the automatic stay, 11 U.S.C. § 362(d), which was granted. Several months after the order for relief was entered, plaintiff repossessed the debtor’s car in which it had held a security interest. Subsequently, plaintiff sold the car without providing any prior notification of the sale to the debtor pursuant to the Uniform Commercia...
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MEMORANDUM OF DECISION On February 24, 1983, the trustee filed a complaint seeking to set aside an alleged preferential transfer from the debtor (WJM Co.) to the Pillsbury Company. The parties have stipulated to the facts, and in effect seek a summary judgment on certain threshold issues. The debtor produces chicken feed; Pillsbury is a supplier of corn. In 1980, the parties made sev...
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MEMORANDUM OF DECISION (Complaint for Declaratory Judgment) This matter came before the court for a hearing on the merits upon a complaint for declaratory judgment filed by the plaintiff, A.E. Landvoight, Inc. (“Landvoight”), against the debtors, L.J. Williams and Bettie M. Williams (“the Williams”), and the trustee, Thomas Lackey. The Chapter 7 trustee did not respond, therefore a judgment m...
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MEMORANDUM OF DECISION On January 23, 1984, Mae Teresa Dun-kinson filed a complaint in this court seeking a determination that a debt of $5,719.05 owed to her by Byron Thomas Ricketts is nondischargeable under 11 U.S.C. § 523(a)(6). The debt in question resulted from a default judgment entered against both the debtor and his now estranged wife, Cathy Ricketts, on August 12, 1983, in the D...
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MEMORANDUM OPINION Movant, The Mutual Life Insurance Company of New York, seeks relief from the automatic stays under 11 U.S.C. § 362(a) in order to foreclose its deed of trust on parcels of farm land belonging to Debtors Burt and Anne Rowe located in Scott County, Missouri, and totaling 2,605.78 acres. Movant asserts that the Debtors are in default on the promissory note which the proper...
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DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT DUE TO NORMAN ESSNER High on the list of creditors who take personal offense when their claims are scheduled for discharge in bankruptcy are lawyers whose counsel fees will be wiped out. Their fuming outrage tends to generate much litigation regarding discharge-ability matters. As Shakespeare described the situation, “ ‘tis like the br...
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OPINION AND ORDER This matter is before the Court upon the Trustee’s complaint for recovery of certain funds on deposit with The Huntington National Bank. Considering the evidence adduced at trial and the memoranda of the parties, the Court concluding that the funds involved are either not estate property or, if they are, that they are exemptible under Ohio law, the Trustee’s complaint is dismi...
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MEMORANDUM OPINION On November 10, 1983 Dr. Paul R. Ven-sel filed a petition in bankruptcy under Chapter 13 of the Bankruptcy Code. The Wisconsin Higher Education Corporation (Wisconsin), an unsecured creditor of approximately $14,500.00 in student loans, objected to confirmation of the debtor’s plan. Wisconsin alleges debtor did not file in good faith pursuant to § 1325(a)(3). The partie...
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MEMORANDUM OPINION This case was tried before me on April 20, 1983. Since the time of trial the Debtor corporation has had its reorganization confirmed and has been substituted as Plaintiff in this action by this Court’s order of July 8, 1983. For purposes of simplicity, however, the parties will be referred to as they stood at the time of trial. This is an action by the Reorganization Trustee to ...
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OPINION Procedure Exclusive Industries Corporation filed for relief under Chapter 7 of the United States Bankruptcy Code on April 8, 1982. The present matter is before this court as an adversary proceeding commenced by the trustee against three creditors claiming vendors privileges, Elder Pallet and Lumber Sales, Inc. (Elder); South Louisiana Sawmill, Inc., (S.L.S.M.); Powell Lum...
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MEMORANDUM The Plaintiff, the debtor’s former wife, filed this Complaint to determine the non-dischargeability pursuant to 11 U.S.C. Section 523(a)(5) of the debtor’s obligation in their Separation Agreement to pay an unsecured home improvement loan, alleging that the assumption of the liability is a debt to the wife in the nature of alimony, maintenance or support. The debtor’s Answer de...
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*659 MEMORANDUM AND ORDER RE CASE CLOSINGS AND FINAL ALLOWANCES These forty-eight (48) cases were commenced on May 26, 1976 with the filing of twenty-eight (28) voluntary petitions under Chapters XI and XII of the former Bankruptcy Act. Petitions by and against the remainder of the debtors were instituted in the following weeks. Because of the financial interrelationships among t...
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*97FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ALLOWING CLAIMANT’S CLAIM IN THE SUM OF $8,000.00 The claimant seeks to have a claim allowed in these chapter 13 proceedings based upon his contractual right to a real estate broker’s fee for selling the debtor’s business to a third party who later returned the business to the debtor because of his inability to manage it. The debtor objects to th...
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MEMORANDUM OPINION The movant, John Hancock Mutual Life Insurance Company (Hancock) filed its Motion To Modify Automatic Stay Or For Adequate Protection on August 29, 1983. Ro-lanco, Inc., the Debtor, filed its response on September 16, 1983. The matter was first set for hearing on September 19, 1983 and by the request and consent of both parties the case was continued and heard on Octobe...
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DECISION ON MOTION FOR SUMMARY JUDGMENT On November 5, 1980, Princeton Industries, Inc., filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On July 14, 1981, this case was converted to a Chapter 7 proceeding pursuant to a motion brought on by the Official Committee of Unsecured Creditors. By order of this court on July 14, 1981, Bruce D. Scherling was appointed ...
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DECISION AND ORDER ON MOTION TO RESOLVE DISPUTE ON ELECTION OF TRUSTEE On September 3,1981 the National Sugar Refining Company (National) filed with this court a voluntary petition under Chapter 11 of the Bankruptcy Code. National was continued in possession of its property and in operation of its business pursuant to Section 1108 of the Code. Prior to the filing of the petition, National...
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DECISION AND ORDER This bankruptcy proceeding was originally commenced when the debtor sought relief under Chapter 11 of the Bankruptcy Code. After an unsuccessful attempt at reorganization which lasted several months, this Court converted the case to a Chapter 7 liquidation proceeding. Prior to the filing of the Chapter 11 petition the debtor was obligated to a Lender which held as collateral se...
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ORDER This matter comes before the court on the trustee’s motion1 on behalf of the debtors to avoid an alleged post-petition trans*3fer of the debtors’ residence pursuant to 11 U.S.C. § 549(a).2 FACTS On July 28, 1983, pursuant to foreclosure proceedings instituted by Colonial Mortgage Company, the Master-in-Equity of Spartanburg County executed his deed conveying to a third party the real estate ...
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ORDER SUSTAINING IN PART AND OVERRULING IN PART DEBTORS’ OBJECTION TO CLAIMS Pending before the court is an adversary proceeding filed in these Chapter 7 proceedings wherein the debtors in an Objection to Claim contend that certain unsecured tax claims of the United States should not be given priority status but should be treated as general unsecured claims. They ask the court to find that the ...
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MEMORANDUM OPINION AND ORDER Debtor operated the Copper Kettle Restaurant under a lease with George P., Nicholas P. and Thomas P. Leounes. The lease dated August 8, 1978, covered real estate, building, equipment, antiques and trade name for a ten-year term with an option to purchase at the end of the term for $150,-000. In addition to a $3,500 monthly rental, debtor was to pay all taxes, utilit...
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MEMORANDUM OPINION This action was brought by the Chapter 7 trustee to avoid a fraudulent transfer under § 548 of the Bankruptcy Code. We are presented with a threshold question of whether the deposition evidence offered by the debtor and the defendant may be considered. The defendant argues that those depositions, which form virtually the entire body of evidence before the Court in that minima...
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ORDER This case is before the Court on the application by the above-named debtor for approval of its disclosure statement in accordance with § 1125 of the Bankruptcy Code. An objection to the disclosure statement was filed by the Creditors’ Committee (“Committee”). Following a hearing on May 1, 1984, this matter was taken under advisement. As set forth below, the disclosure statement contains a...
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MEMORANDUM DECISION AND ORDER Trustee for Debtor KIKI, Ltd., (hereinafter “Debtor”), on August 17, 1981, filed objections to claim # 69 of the Marcia-Neal Westervelt Revocable Trust, (hereinafter “Westervelt Trust” or “Trust”). A trial on the objections was held on October 15, 1982, before the undersigned Bankruptcy Judge with V. Spencer Page, Esq., appearing on behalf of the t...
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MEMORANDUM AND ORDER This matter came before the court on the motion of the defendants (the Beschs) for summary judgment on the plaintiff’s (St. Charles) complaint. Having carefully considered all pleadings, memoranda, affidavits and documentation filed herein, the court grants summary judgment for the Beschs as to one issue, denies it as to another, and directs the movant to submit additional ...
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OPINION Transamerican Freight Lines, Inc. (TAFL) hauled freight by truck throughout the United States. On October 10, 1975, TAFL filed a Chapter XI petition. When the petition was filed, the debtor had secured debt of approximately $8,000,000, tax liabilities of approximately $6,000,000, a debt to the Teamsters Health, Welfare and Pension Funds of approximately $1.2 million and unsecured ...
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MEMORANDUM OPINION The above captioned adversary proceeding was commenced on December 6, 1982, by the filing of a Complaint seeking a determination that the debt owed by the Debtor to the Plaintiff was not dischargea-ble pursuant to 11 U.S.C. § 523(a)(4). Trial was held on April 16, 1984. After consideration of the evidence as adduced at trial and the briefs of parties, the Court finds the rele...
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DECISION AND ORDER ON MOTION TO TURNOVER GARNISHED WAGES On March 14, 1983, Clifton Albert Rutty (Rutty) filed a petition under Chapter 7 of the Bankruptcy Code (Code). On August 27, 1982, Mark Terrace Apartments (Mark Terrace) commenced an action against Rutty for rent arrears due in the amount of $2,898.37. Judgment was entered on October 21, 1982, in the Civil Court of the City of...
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OPINION The issue in the dispute at bench is whether the debtors have a right to set off their current indebtedness under the Employee Retirement Income Security Act (“ERISA") against previous excess payments made by them. For the reasons stated below we hold that the debtors have no right of setoff. The facts of this case are as follows: 1 The debtors filed a petition for...
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MEMORANDUM AND ORDER Plaintiff instituted this action against his former wife (the defendant) seeking a determination as to the dischargeability of certain obligations of the plaintiff imposed by a separation agreement and consent order entered into by the parties. FACTS The following facts have been established from the testimony, and from a proposed joint pre-trial order submi...
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ORDER CAME ON to be heard and was heard the motion to pay over funds filed by the United States Attorney, Northern District of Mississippi, on behalf of Farmers Home Administration; response filed by the debt- or, Charles E. Smith, d/b/a Charles E. Smith Farms; response filed by creditor, Leon Warrington, d/b/a Warrington Flying Service; all parties being represented in Open Court by their resp...
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Findings of Fact, Conclusions of Law, and ORDER Sustaining in Part and Denying and Dismissing in Part 11 U.S.C. § 528(a)(2) Dischargeability Complaint The matter before the Court is an adversary proceeding regarding the discharge-ability of a consumer debt owed to the plaintiff/creditor, J.C. Penney Company, Inc. (hereafter “creditor”) by the defendants/debtors, Larry Paul and Jolene ...
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ORDER The question before us, according to the briefs in a vigorously contested motion, is whether the validity of a properly recorded and perfected real estate mortgage is impaired by a judgment on the related mortgage note, when the judgment makes no reference at all to the mortgage. The answer is probably no, but we need not reach it. For the question presented, according to our resear...
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OPINION This case comes before the Court as a motion by the trustee for turnover of funds held by a custodian under § 543(b) 1 and a cross-motion by an attorney who represented the debtor in litigation against an insurance company for an award of his attorney fees under a contingency-fee contract with the debtor, where the source of the custodian’s funds is the settlement proce...
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ORDER Background This present motion to dismiss was filed by defendant/debtor Nevada Emergency Services, Inc., dba Medic I (NES) on 14 December 1983 and argued before the Court on 11 January 1984. NES, joined in its motion by non-debtor defendants International Life Support Inc. (ILS) and Jack Gould, seeks dismissal of this adversary proceeding for the plaintiffs’ alleged failure...
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MEMORANDUM OPINION This matter comes on to be heard upon the objections to distribution of proceeds filed by Pamlico Chemical Company, Inc., and North Carolina National Bank, creditors in this case. The objections were filed *565in response to the Chapter 7 trustee’s petition for an order of distribution. The objections are centered around a promissory note executed by the debtors and the extent t...
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MEMORANDUM OF DECISION AND ORDER This matter has been brought by the Trustee of this estate to recover an alleged preferential payment to the defendant, Fort Worth Pipe Company, pursuant to, 11 U.S.C. § 547. Due to substantial stipulations the issue has been narrowed to a question of when a determination of “new value” is made for purposes of a contemporaneous exchange under § 547(c)(1). ...
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MEMORANDUM OPINION This action is before the Court on Plaintiffs’ Application for Preliminary Injunction pursuant to Rule 7065 of the Rules of Bankruptcy Procedure. Origínala Petroleum Corp., Origínala Well Services, Inc., and Origínala Drilling Company, Inc. seek a Preliminary Injunction from this Court enjoining Beta Financial and Investments Corp., Shmuel Barzel, J. Rappaport and Israe...
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MEMORANDUM AND ORDER ON MOTION OF HANSMAN McAVOY & CO., INC., FOR RELIEF FROM STAY *336 The Motion of Hansman McAvoy & Co.,. Inc., for Relief from Stay came on for continued hearing, after notice, on April 13, 1984. In lieu of an evidentiary hearing, the Movant, Hansman McAvoy & Co., Inc., and the Debtors, through their attorneys, Kevin Truland, Esquire, and Joseph C. Palmisa-no,...
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MEMORANDUM OF DECISION The moving party, Media General Broadcast Services, Inc., is the successor to William B. Tanner Co., Inc. (“Tanner”). On February 8, 1982, a proof of claim on behalf of Tanner was filed by Picard, Canale, Cay wood, Lucas and Watson, a law firm who then represented Tanner. In May of 1982, Clifton M. Lipman, Esquire, a staff attorney employed by Tanner, undertook representa...
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DECISION AND ORDER On February 21, 1984, debtor, Jonathan Drake, was granted a discharge under 11 U.S.C. § 727(b). Thereafter, on March 12, 1984, debtor moved this court for an order authorizing the amendment of his schedule of property claimed as exempt to include (a) an anticipated tax refund in the amount of $300.00, and (b) $50.00 “cash in hand.” The debtor has apprised the court that the t...
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MEMORANDUM OPINION Home Federal Savings and Loan Association (hereinafter Home Federal) has filed a *40 motion for relief from stay in the Carl A. Petersen (hereinafter Petersen) chapter 11 reorganization. Petersen has agreed to the statement of facts appearing in Home Federal’s motion. On October 7,1982, Home Federal obtained three mortgage foreclosure judgments against...
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OPINION The issue in the matter at hand is whether we should grant a landlord’s motion for relief from the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”) so it can evict the debtor from the leased premises for failure to tender timely the rent. Based on the reasons outlined below, we will deny the motion. The facts of this case are as follows: 1 Since June ...
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MEMORANDUM Plaintiff, First Tennessee Bank of Johnson City, Tennessee, seeks judgment against the debtor, Bruce Dean Lloyd, a former used mobile home dealer, in the amount of $9,822.66 and a finding of non-dischargeability. 11 U.S.C.A. § 523(a)(6). 1 I On the date of bankruptcy the bank held four unpaid notes executed by the debtor. The first of these notes is dated Febr...
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MEMORANDUM In December, 1980, creditors filed an involuntary bankruptcy petition against Jorg-es Carpet Mills, Inc. (Jorges). About this time, Jorges transferred to S. Rasnick and Company, Inc., (Rasnick) a large quantity of carpet yarn and numerous metal storage baskets used in shipping the yarn. The court entered an order for relief as to Jorges and appointed C. Kenneth Still as tr...
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MEMORANDUM OF DECISION The plaintiff institution seeks a determination that a revolving loan in the amount of $4,500.00 is nondischargeable under the Code. 11 U.S.C. § 523(a)(2)(B). FINDINGS OF FACT The facts necessary for a determination of the issues are as follows: Debtor Virginia Ann Furimsky has been a member of the Williams Air Force Base Federal Credit Union since 19...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING PRIORITY OF SECURED INTEREST IN CASH PROCEEDS FROM SALE OF EQUIPMENT On November 3, 1983, Pioneer Federal Savings Bank (“Pioneer”), a creditor of Island Airlines Hawaii, Inc. (“Debtor”), filed herein an Application to Abandon Cash Proceeds of Collateral Sale, wherein Pioneer asserted its first priority interest in cash proceeds of inventory and eq...
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MEMORANDUM AND ORDER This matter is before the Court on the motion filed by Anthony R. Martin-Trigona on July 16, 1983, seeking, among other things, leave to file certain pleadings and documents in this proceeding, and Acton Foodservices Corporation’s (the “Debtor”) objection and motion to strike appearance, proof of claim and motion of Anthony R. Martin-Trigona or, alternatively, for stay ther...
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OPINION At a hearing held on December 13, 1983, the Court considered the application of the debtor, Borne Chemical Company, Inc., seeking approval of two agreements authorizing the debtor to sell two parcels of real property, one to Bruncor Corp. for the sum of $425,000 — the other to Valley Forge Engineering Co. for $100.00. At the conclusion of the hearing and upon its finding that it w...
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ORDER This Chapter 7 adversary proceeding is before the Court pursuant to a complaint filed by Jacqueline Johnson, former wife of the debtor, John Seta, seeking a judgment that certain debts arising from the parties’ divorce are nondischargeable under 11 U.S.C. § 523(a)(5). A trial on this matter was held April 20, 1984. The parties stipulated that the July 6, 1982 and January 6, 1984 reports...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for Avoidance of Lien and the Objections thereto. The parties have agreed that the issues addressed by this *854Motion are primarily issues of law which may be submitted to the Court in the form of written arguments. Each of the parties have filed such arguments and have had the opportunity to respond to the contentions...
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MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEBTOR’S COMPLAINT TO RECOVER CERTAIN PREFERENCES AND SUSTAINING IN PART AND OVERRULING IN PART DEBTOR’S OBJECTION TO DEFENDANT’S CLAIM OF PRIORITY STATUS On October 12,1983, this matter came on to be heard. Plaintiff, Razorback Ready-Mix Concrete Co. appeared by counsel, C. Richard Crockett; Defendants, United States of Am...
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MEMORANDUM OPINION AND DECISION INTRODUCTION On February 18, 1982, involuntary petitions were filed against the debtor, Golden Plan of California, Inc. and its three related entities. On April 9, 1982, the court entered an order for relief, appointed Melvyn J. Coben as trustee, and ordered the cases consolidated for administrative purposes. In a subsequent order the court found that ...
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MEMORANDUM OPINION AND ORDER ON REASONABLENESS OF ATTORNEY FEES This matter first came on for hearing before the Court on November 18, 1983, pursuant to an Application for additional attorney fees. John R. Stonitsch, of Kansas City, Missouri, represented the debtors; and Thomas M. Mullinix was local counsel. The facts are not in dispute. On September 13, 1983, an original petition was filed under...
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ORDER GRANTING SUMMARY JUDGMENT This matter came before the Court on cross motions of the plaintiff and defendant for summary judgment. The matter was submitted to the Court on a stipulation of facts and the admission of Cessna Finance Corporation (“CFC”) that it had received a preferential transfer within the meaning of 11 U.S.C. § 547(b). The sole issue that remained was whether the preference w...
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The debtor, L. Steven Lewis, filed his Chapter 7 petition in this Court on July 15, 1982. Scheduled among his creditors were debts to his former wife and to her attorney, Richard Collins. On September 23, 1982, these creditors filed a complaint seeking a determination of the dischargeability of their respective debts. Following the debtor’s filing of an answer, the parties ultimately agreed to ...
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The reorganized Chapter XI debtor, Computerized Steel Fabricators, Inc. (“Computerized”), seeks to punish for contempt Pension Fund Iron Workers Local 455 (“Pension Fund” or “Fund”) for the Pension Fund’s post-confirmation efforts to collect from the debtor an alleged withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), Pub.L. No. 96-364, 94 Stat. 1208, amen...
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ORDER Pending before the Court in the above-entitled bankruptcy proceeding are various objections to the Debtors’ claims of exemptions and confirmation of their Chapter 13 plan. A confirmation hearing was originally held before the Honorable Harold 0. Bullis on November 10, 1982. The Farmers and Merchants Bank of Valley City objected to valuations made as the basis for the Debtors’ liquidation ...
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OPINION The question in the controversy at bench is whether the Internal Revenue Service (“the IRS”) should be held in civil contempt for allegedly violating the automatic stay of the Bankruptcy Code (“the Code”) by sending the debtors a notice of tax deficiency and various other documents. For the reasons expressed below we will not hold the IRS in contempt. The facts of this ease are as fol...
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MEMORANDUM OPINION ON MOTION FOR RELIEF FROM AUTOMATIC STAY On October 19, 1983, Duferco, Ltd., (hereinafter “Duferco”), filed its motion for relief from the automatic stay in this cause of action. The Debtor, Coleman Pipe, Inc., (hereinafter “Coleman Pipe”), filed its response in opposition to Duferco’s motion for relief from the automatic stay and motion for leave to file third party ac...
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MEMORANDUM AND ORDER David R. Langston, Trustee, challenges prepetition transfers from the debtor, Glenn Armond Porter, to his father as being preferential within the meaning of § 547(b) of the Code. The following summary constitutes findings of fact and conclusions of law. Debtor, Glen Armond Porter, at all relevant times prior to bankruptcy, was co-owner of Downhill Racer, a ski shop. That busin...
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MEMORANDUM OPINION This matter came on before the Court in the above adversary proceeding on the Motion of the Defendant, Air Line Pilots Association (ALPA), for a Stay of Discovery and for a Protective Order. In addition, or in the alternative, ALPA has requested the expansion of the Protective Order (copy appended) entered by Judge R.F. Wheless, Jr. of this Court on December 12, 1983. After pro...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing upon Motion for Relief from the stay of 11 U.S.C. § 362 filed by Virginia National Bank (“VNB”). The evidence presented at trial, however, related essentially to the question of the validity of VNB’s alleged lien on a 1975 International TD Dozer. Although this issue more properly should have been brought before the Court under Bankru...
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MEMORANDUM OPINION This matter comes before the Court upon defendants’ motion for attorneys’ fees and costs generated in defense of the underlying complaint filed by the debtor to recover monies due. The complaint also alleged a breach of fiduciary duty by the defendant, Walker Florance, Esquire (“Florance”), which he owed in his capacity as executor and trustee of the Estate of Elam L. T...
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MEMORANDUM The Plaintiff’s Amended Complaint seeks a determination that the debtor’s liability to the Plaintiff, People’s Savings Bank of Brockton (“the Bank”) is a nondischargeable debt pursuant to 11 U.S.C. Section 523(a)(6). The Bank contends that the debtors’ sale of his 1980 Lincoln automobile in which the Bank had a security interest without the Bank’s consent was a willful and mali...
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OPINION AND ORDER The debtors, Thomas A. Marino and Edith M. Marino (debtors), commenced this proceeding to avoid a judicial lien pursuant to § 522(f)(1) of the Bankruptcy Code. For the reasons provided herein, we grant the relief requested. FINDINGS OF FACT 1. On July 24, 1975, Thomas A. Marino, the male debtor, entered into an employment contract with Stroehmann Brothers Company (Stroehmann). 2...
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MEMORANDUM DECISION The above-entitled matter is before the Court on the debtors’ motion for determination of secured status. Although this action is more accurately described as one requesting the Court to determine the validity, priority, and extent of liens (an adversary proceeding commenced by filing a complaint rather than a motion), the Court will consider the matter as properly before it...
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MEMORANDUM OPINION AND ORDER This case presents the Court with the legal equivalent of a game of mirrors. The Veterans’ Administration of the United States (hereinafter “VA”), acting through its home-mortgage guaranty program, in January of 1983 approved mortgage financing for the debtors which permitted them to buy a home for $87,900 with little down payment. To cover the required monthly mortgag...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on to be heard upon a Second Amended Complaint to impress a lien upon the Debtor’s homestead property to recover a fraudulent transfer and the Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses and being otherwise fully advised in the premises, does hereby make the...
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MEMORANDUM DECISION AND ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN WITHOUT PREJUDICE TO FILE A NEW PLAN WITHIN THIRTY DAYS This Cause having come before the Court upon a hearing to consider confirmation of a Chapter 13 plan and the Objection thereto and the Court having reviewed said plan, heard the arguments of counsel, and being otherwise fully advised in the premises, does hereby enter th...
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MOTION TO CHANGE VENUE On June 22, 1983 George Blake (Blake or debtor) filed a petition for relief under Chapter 11 of the Bankruptcy Code (the Code). Blake commenced an adversary proceeding against David M. Zimberoff and Dorothea Zimberoff (the Zimberoffs) in this court on November 1, 1983. During December, 1981 the debtor conveyed his right, title and interest in property located at 4527 Orringt...
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DECISION ON COUNTERCLAIM OF 130 FIFTH AVENUE ASSOCIATES On February 2, 1982, an involuntary Chapter 11 petition was filed against Isaac Cohen Clothing Corporation (ICCC) a clothing manufacturer operating out of leased premises at 130 Fifth Avenue in New York City (premises). ICCC consented to the entry of an order for relief under Chapter 11 on March 8, 1982 and was continued in possessio...
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DECISION GRANTING MOTION FOR RELIEF FROM STAY TO RECLAIM PROPERTY Heard on April 9, 1984, on Mercedes Messier’s motion for relief from the automatic stay (11 U.S.C. § 362) to reclaim various appliances. At issue is the ownership of said appliances. The parties agree that in 1980 when Messier changed her residence, relocating from a house to a furnished apartment, Juanita Ewing; then Messier’s...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause having come before the Court upon a Complaint To Recover Fraudulent And Preferential Transfers and the Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel and being otherwise fully advised in the premises, does hereby make the following find...
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MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT STATEMENT OF THE CASE Franklin Thomas McElwaney, d/b/a Turnwold Farms, Debtor, filed a voluntary petition for relief under Chapter 7 of the United States Bankruptcy Code on February 3, 1983. On September 23, 1983, the Federal Land Bank of Columbia, Plaintiff (hereinafter Federal Land Bank), filed a “Complaint to Determine Validity, P...
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ORDER This matter stands before the court on the plaintiffs motion for summary judgment in a nondischargeability action, on the ground that there is no genuine issue of material fact which would justify a full trial. There have been made part of this record the depositions of the parties to an earlier personal injury action in state court which resulted in a judgment of $58,476.04 for thi...
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DECISION ON MOTION TO DISMISS COMPLAINT On January 25, 1982, United Department Stores, Inc. (UDS) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. UDS was continued in possession of its properties and in operation of its business pursuant to section 1108 of the Bankruptcy Code. In 1980 UDS purchased from Outlet Company (Outlet) certain retail clothing businesses fo...
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DECISION AND ORDER FACTS The debtor/defendant, Anthony J. Migl-iarese, filed a Chapter 7 petition in bankruptcy on March 28, 1983. Among the unsecured debts listed in his schedules of assets and liabilities is an obligation of $10,000 due his former wife, Debra L. Migl-iarese from whom he was divorced on March 14, 1978. The couple had no children. The former Mrs. Migliarese remarried on July ...
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MEMORANDUM OPINION This matter comes on to be heard upon the motion of Pamlico Chemical Company, Inc., a creditor, for the marshalling of assets and the distribution of funds. After considering the pleadings, the evidence, and the arguments of counsel, the Court finds the facts to be as follows: FINDINGS OF FACT The debtors filed a petition under Chapter 11 of the Bankruptc...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motion for Summary Judgment filed by the Plaintiff in this adversary proceeding. This adversary case, which seeks a determination of dischargeability, was filed pursuant to an Order of this Court in the related bankruptcy case. That Order required the Plaintiff to withdraw his Objection to the Debtor’s Application to...
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MEMORANDUM OPINION Presently before the Court is an application by the debtors to strike a motion for relief from the automatic stay filed by Bucks County Bank and Trust Company. For the reasons stated herein, we will grant the debtors’ application to strike. The facts are not in dispute.1 A petition under Chapter 13 of the Bankruptcy Code was filed by the debtors on April 19, 1982. An Order conf...
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OPINION The question in the controversy at bench is whether the defendant is indebted to the *54debtor for credit purchases made by persons who identified themselves as the defendant’s employees. For the reasons expressed below we find that the defendant is obligated on said credit purchases. The facts of this case are as follows:1 The debtor was a supplier of plumbing supplies who, in 1977,' exte...
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OPINION The issue in the controversy at bench is whether we should grant the motion of the creditors’ committee for leave to commence a preference action against the president and sole shareholder of the debtor in possession. For the reasons expressed herein we will grant the motion. The facts of this case are as follows: 1 Approximately two years ago Philadelphia Light Su...
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MEMORANDUM Once again this court must decide whether to enjoin a criminal prosecution of a *821 debtor. 1 Because our prior cases did not address the effect of the § 524 discharge injunction on post-discharge probation revocation, we will resolve two issues: (1) whether restitution imposed as part of a criminal sentence is a debt subject to discharge in bankruptcy;...
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ORDER The matter being considered here is the plaintiffs’ motion to strike portions of the defendant/debtors’ First Amended Counterclaim. Oral argument was presented during a pre-trial hearing on April 17,1984, after which the Court entered certain findings and conclusions and orders, to wit: IT IS ORDERED that plaintiffs’ motion to strike Count I, paragraph 5, of the defendants' counterclaim...
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In this adversary proceeding, Steven F. Miller (hereinafter, the Plaintiff) seeks to have declared nondischargeable a debt in the amount of $16,235.91, plus interest, incurred by Christopher D. Beehner (hereinafter, the Debtor). Having heard testimony from the Plaintiff and Debtor, and having reviewed the pleadings, testimony and the evidence adduced at the trial, held on December 19, 1983, the Co...
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MEMORANDUM AND ORDER ON THE DEBTOR-IN-POSSESSION’S APPLICATION FOR AUTHORIZATION TO REJECT EXECUTORY CONTRACTS This matter is before the Court on the Application of the Debtor, Air Vermont, Inc., to reject two executory contracts for the purchase of aircraft from Ralph Cutillo. The instant application was filed on February 24, 1984, and came on for hearing March 2, 1984. No objection to the Appli...
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*325 MEMORANDUM AND ORDER ON MOTION OF PIONEER COMMERCIAL FUNDING CORPORATION FOR RELIEF FROM STAY Pioneer Commercial Funding Corp. a financing company, based in Scarsdale, New York did on February 2, 1984 file a Motion for Relief from Stay so that it could proceed to realize on certain accounts receivable consisting of all billings processed through the Airlines Clearing House, ...
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MEMORANDUM OPINION Constance Mae Long, the debtor’s former spouse and a creditor in this Chapter 13 case, has sued to determine the dis-chargeability of a $225.00 debt for attorney’s fees. The debt results from her successful action against the debtor to enforce a state court Order for child support payments. On October 4, 1983, the Pulaski County Chancery Court entered a judgment against the d...
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MEMORANDUM OPINION AND ORDER This cause came to be heard upon the motions of MANUFACTURERS HANOVER TRUST CO. and CITIBANK, N.A. [Banks], represented by LEVY & ERENS, requesting the Court to make additional findings of fact and, by separate motion, requesting the Court to enter certain relief which would permit the Banks to appeal this Court’s Order of March 19,1984, which allowed the first reques...
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MEMORANDUM OPINION The trustee in bankruptcy commenced this adversary proceeding by filing a complaint on March 10, 1983 objecting to creditor’s tendered proof of claim alleging secured status in property of debtors’ estate. The issue of whether creditor’s claim is secured and prior to trustee’s hypothetical lien asserted pursuant to 11 U.S.C. § 544 was submitted for judicial determinatio...
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I. JURISDICTION The Court has jurisdiction under 28 U.S.C. § 1471, as amended, and Local Rule 29, United States District Court, Middle District of Louisiana, as amended. No party has objected to the jurisdiction of the Court. II. FACTS The parties have stipulated the facts as follows: *817(1) The Debtor and his wife Barbara Van Vleet were divorced on December 24, 1981; (2) An order for alimony and...
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MEMORANDUM OF DECISION On June 16, 1983, Plaintiff Luella Rouil-lard, the debtor’s ex-wife, filed a complaint which, in part, objected to the debtor’s claimed homestead exemption in certain real property located in Augusta. On August 10, 1983, the trustee filed both a cross-claim and a third party complaint which, in part, raised the same objection. A hearing was held solely on the objections t...
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ORDER GRANTING DEFENDANT’S JOINT MOTION FOR SUMMARY JUDGMENT The within action was filed by the plaintiff debtors as a “complaint to set aside foreclosure sale and cancel deed as a fraudulent transfer” in respect of a foreclosure and sale of debtors’ residential property during a period of time after these chapter 13 proceedings were dismissed and before they were reinstated on motion of the ch...
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DECISION ON MOTION TO EMPLOY SPECIAL COUNSEL NUNC PRO TUNC On April 15, 1982, Saxon Industries, Inc. (Saxon) filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. Saxon was continued in possession of its property and in the operation of its business pursuant to section 1107 of the Bankruptcy Code. On June 30, 1982, the court ordered the United States Trustee t...
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These cases are before the Court on the debtors’ motions or adversary proceedings 1 to avoid judgment liens pursuant to 11 U.S.C. 522(f) (Supp. IV 1980). Defendant Household Finance Corporation moved for dismissal of the action against it on the basis of this Court’s decision in Zuaro v. Gertz, 29 B.R. 37 (Bkrtcy.E.D.N.Y.1983) (In re Zuaro). The responde...
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DECISION & ORDER Debtor, Emil Paul Klein, moves this court for an order dismissing his Chapter 7 case. BACKGROUND On April 22, 1982, debtor filed a petition under Chapter 13 of the Bankruptcy Reform Act of 1978 (“Code”). Thereafter, the debtor moved ex parte to convert the ease to one under Chapter 7 pursuant to 11 U.S.C. § 1307. In support of said application, the de...
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MEMORANDUM OPINION The Oregon Bank has filed a motion for relief from stay in the Alan B. Scott chapter 11 reorganization. Contemporaneously the debtor-in-possession has filed a motion to determine the status and amount of the Oregon Bank’s claim under 11 U.S.C. § 506. Mr. Scott filed his chapter 11 petition on September 22, 1983. The statement of affairs and schedules filed therewith states ...
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OPINION Currently before the Court is the Complaint of Albert P. Massey, Jr., Trustee, to sell property free and clear and to deter *527 mine the nature, extent and validity of lien. By Order dated January 28, 1983, this Court granted the request to sell real estate free and clear of liens. The sole issue remaining for decision is the extent and validity of the lien of the defendant, Mary Ker...
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MEMORANDUM OPINION This matter came before the Court upon the filing by Heritage Savings and Loan Association (the “Lender”) of a motion for relief from the automatic stay provisions of 11 U.S.C. § 362. For similar reasons, the Lender has objected to confirmation of the debtor’s Chapter 13 plan. After holding evidentiary hearing pursuant to the Lender’s motion, the parties filed memoranda in su...
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MINUTES OF HEARING, FINDINGS OF FACT, CONCLUSIONS AND ORDER ON TRUSTEE’S COMPLAINT TO VOID PREFERENCE AND FOR TURNOVER This matter comes before the Court upon the Trustee’s Complaint for Avoidance of a Preferential Transfer and for Turnover. A hearing was held on February 13, 1984. The facts of the case are undisputed. The Debtors contracted for, and obtained, the services of the Def...
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ORDER RE: APPLICATION OF BROKER JON P. HAIG FOR COMPENSATION AND COSTS The Application for Allowance of Compensation and Fees filed herein on October 29, 1982, by Jon P. Haig, Realtor, Owner and Principal Broker for Commercial Locations, (hereafter “Applicant”), was duly noticed and brought on for hearing before the undersigned Judge on April 8, 1983. Present at said hearing were Mr. Haig, pro ...
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DECISION AND ORDER FACTS Presently before the Court are Objections to the Confirmation of the Second Amended Plan of Reorganization of Medical Equities, Inc. These objections were filed on March 6, 1984 and were heard on April 4, 1984. Also pending is an “Application for an Order of Dismissal” filed in behalf of Robert S. Peebles, Jr. on 17 August 1982 alleging that debtor “has ...
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DECISION and ORDER PROCEDURAL POSTURE On April 21, 1983 Plaintiffs, Joseph Thomas Jones and Barbara Jean Jones filed an “Application to Remove” a state court proceeding filed against them by Defendant, I.T.T. Technical Institute, to this court and alleged the following: “On September 11, 1980, Petitioners filed the instant petition in Bankruptcy. The I.T.T. Technical Institute was properly ...
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*806 MEMORANDUM DECISION AND ORDER This matter comes on for consideration upon the Application to Assess Costs filed by the Chapter 11 debtor in possession. The application seeks to recover the sum of |154,967 as the reasonable, necessary cost and expenses of preserving secured property as authorized pursuant to 11 U.S.C. § 506(c). Objections to the debtor’s application were made...
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MEMORANDUM At issue is the validity, extent and priority of a lien impressed by a state court order upon the debtor’s interest in real estate for the purpose of securing the debt- or’s support obligations under a divorce decree. I The debtor filed his voluntary petition for chapter 7 relief on May 19, 1983. On November 21, 1983, the trustee commenced this action to determine the...
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MEMORANDUM OPINION This matter came before the Court upon the filing of an objection to claim and complaint to determine validity of lien by the debtor. After a stipulation of facts, the Internal Revenue Service and the debtor submitted the matter to the Court on briefs. After considering the issues raised by the parties, and their respective arguments in support of their positions, this ...
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OPINION The debtor appeals from a summary judgment excepting from discharge his liability to a court appointed attorney and psychiatrist for his minor child. We hold that these obligations cannot be excepted from discharge and reverse. The facts are not disputed. During custody litigation between the debtor and his former wife, the state court appointed both an attorney and a psychiatrist for...
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OPINION The County of San Diego appeals from an order denying sixth priority for its tax claim. Because of a dispute as to the meaning of Proposition 13 (Calif. Const. Art XIII A), the County was enjoined by the state courts from issuing its tax bills for the 1978-1979 fiscal year at the proper tax rate. Board of Supervisors of San Diego County v. Lonergan, 27 Cal.3d 855, ...
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OPINION Mohan S. Tucker, Plaintiff, appeals from a judgment denying him relief from stay to pursue an appeal against Sambo’s Restaurants, Inc., defendant. The subject appeal was filed with the United States Court of Appeals for the Eleventh Circuit on February 24, 1982, from a judgment of the United States District Court for the Northern District of Georgia in Equal Employment Opportunity Comm...
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OPINION This is an appeal by the debtor, Derek J. Zupancic, from a final judgment and order granting appellee’s motion for summary judgment. The order dismissed debtors’ amended complaint, alleging an oral partnership agreement with appellee, Malcolm J. Winer. We reverse. I. INTRODUCTION A. FACTS Debtors Derek J. and Linda J. Zupancic filed a Chapter 11 bankruptcy petition ...
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OPINION Dr. T.O. King commenced an action against the debtor, Ms. Stanton, for dissolution of a partnership, an accounting, and a declaration that he was sole owner of the partnership assets. Ms. Stanton asked for the same relief and for a declaration that they held equal shares in the partnership assets. She also cross-claimed for damages. We affirm the trial court’s judgment as to the a...
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OPINION FACTS Appellee/debtor, Heidi M. Zeller, purchased from appellants Burton and Carolyn Elias a dog-grooming business named The Pink Poodle. She signed a purchase agreement on December 22, 1980, promising to pay $65,000 plus cash for inventory. Ms. Zeller contended that the Eliases made certain oral representations to her about the profitability of the business. She did not insp...
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This is a creditors’ appeal from a judgment refusing to except a debt from discharge on grounds of fraud, breach of fiduciary obligations and embezzlement. The trial court’s findings of fact were not clearly erroneous and we therefore affirm. Appellants are three of the investors who lost money in a scheme to buy a thrift and loan in Hawaii. The investors deposited $200,000 into the venture’s s...
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MEMORANDUM DECISION AND ORDER The issue before the Court is whether Malden Trust Company’s setoff of certain money (the “collateral”) it was holding pri- or to the filing of Milano Textiles, Inc.’s (the “Debtor’s”) Chapter 11 petition was proper and thus served to eliminate the Debtor’s rights in the collateral or whether the setoff was improper and thus the collateral was and is property of th...
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MEMORANDUM DECISION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT On October 26, 1982 an involuntary petition for relief under Chapter 7 of the Bankruptcy Code was filed against the debtor, Vasu Fabrics, Inc. (“Vasu” or the “Debt- or”). An order for relief was entered on November 23, 1982. The Trustee, New York Credit Adjustment Bureau, Inc. (“Trustee”), was appointed on February 2, 1983. On J...
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OPINION The question presented in the controversy before us is whether we should grant a creditor’s request for relief from the automatic stay notwithstanding the confirmation of the debtor’s chapter 13 plan. For the reasons outlined below we will deny such relief. The facts of this case are as follows: 1 The debtor filed a petition for the repayment of her debts under cha...
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ORDER This matter comes before the court on the motion of Citizens and Southern National Bank of South Carolina (C & S) seeking relief from the automatic stay pursuant to 11 U.S.C. 1 § 362 in order that the bank may exercise its right to setoff under §§ 506 and 553. The debtor argues that because the bank is not entitled to setoff for the reason that mutuality of obligation ...
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ORDER This case is before the Court on the objection by the debtor, Allied Mechanical Services, Inc. (“Allied Mechanical”), to the proof of claim filed by the Secretary of Labor (“Secretary”) in the above-referenced Chapter 11 proceeding. Allied Mechanical filed its objection on October 3, 1983, and on November 17, 1983 the Secretary filed his response. Following a hearing on December 14,...
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ORDER This case is before the Court on the motion by the debtor, Janice P. Reese, (hereinafter referred to as the “Debtor”), to compel the release of college transcripts by the University of Georgia, Athens, Georgia. Following a hearing on March 7,1984, this matter was taken under advisement. STATEMENT OF FACTS The facts, which are not in dispute, are as follows: The Debtor filed her petiti...
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ORDER DENYING MOTION TO RECONSIDER ORDER DISMISSING INVOLUNTARY PETITION On January 5, 1984, this Court entered an Order Dismissing Involuntary Petition in the instant case, ending sixteen months of involuntary bankruptcy for the alleged debtor, 36 B.R. 265. The Court’s Order contained Findings of Fact drawn from protracted evidentiary hearings, and the Court’s conclusion, based on the evidence, t...
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ORDER GRANTING MOTION TO SET ASIDE ORDER DISMISSING ADVERSARY COMPLAINT On February 10,1983, Pan American Airways (hereafter “Plaintiff”), filed the instant adversary action, a Complaint to Determine Dischargeability of Debt. After various preliminary procedural documents were filed, Debtor filed pro se on May 10, 1983, an Amendment to Answer and Mo*44tion to Dismiss. The Motion to Dismiss was set...
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*57 ORDER DENYING MOTION FOR PARTIAL RECONSIDERATION On March 20, 1984, this Court, 37 B.R. 894, entered its order denying Murray, Plumb & Murray’s motion for a protective order. On March 30, 1984, Murray, Plumb & Murray filed a motion for partial reconsideration of that order. 1 In its motion for reconsideration, movant does not dispute this Court’s determination th...
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OPINION CAME ON to be heard and was heard the complaint to deny dischargeability of a debt filed by the Plaintiff, William Ralph Wadlington, Sr., natural father and next friend of Elizabeth Lee Wadlington, deceased; answer filed by the Defendant, Ulyssess S. Grant Gandy; all parties being represented before the Court by their respective attorneys of record; on proof before the Court; and the Court...
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MEMORANDUM OPINION This matter came before the Court upon the motion of General Motors Acceptance Corporation (GMAC) and First National Bank of Belen (FNB) to lift the automatic stay. GMAC and FNB are both secured creditors of the debtor, Bud Long Chevrolet, and claim a security interest in the equipment and inventory of the debtor. By agreement of the parties the trustee has sold the col...
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MEMORANDUM AND DECISION This motion is made by the Tax Division of the U.S. Department of Justice and seeks to alter or amend a judgment (order) of this Court dated April 26, 1983, disallowing the amended proof of claim of the IRS in its entirety for the years 1975 and 1976 except to the extent of $80.80. The motion was made pursuant to Rule 59(e) of the Federal Rules of Civil Procedure and Ban...
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*783 MEMORANDUM AND ORDER I. ISSUES This proceeding raises complex issues of constitutional dimension where there is conflicting authority in the courts and no controlling precedent in this circuit. The court is first called upon to resolve the intent of Congress, and the power of Congress to implement that intent, in the Bankruptcy Code provisions which impinge upon th...
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ORDER Case No. 84-00953A came on for hearing on April 5, 1984, on the motion of the Administrator of Veterans Affairs for relief from the automatic stay in said case. The movant and the respondent trustee were present at the April 5th hearing and the movant presented sworn testimony in support of his motion. Based on the testimony and the other matters of record, the Court finds as follows: T...
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ORDER This matter comes before the Court on the Trustee’s Report of Exempt Property. The issues in this case are whether Debtors may exempt a portion of the value of a truck under § 12-1001(b) of Illinois’ personal property exemption statute, Ill.Ann.Stat. ch. 110, § 12-1001(b) (Smith-Hurd 1983), and whether Debtors may each exempt two vehicles under § 12-1001(c) of Illinois’ personal property exe...
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MEMORANDUM OF DECISION In this chapter 11 proceeding, both the debtors and the North Central Kansas Production Credit Association (PCA) have filed disclosure statements and plans. PCA’s plan is one of complete liquidation. The debtors, who are farmers, announced that at the appropriate time they will object to being liquidated in the chapter 11 proceeding. Though PCA’s proposed plan calls...
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MEMORANDUM OPINION The Trustee commenced the instant adversary on December 6, 1982, seeking a turnover of certain funds pursuant to sections 542 and 543 of the Bankruptcy Code. The Trustee and the Defendant, Kenko, Inc. (Kenko) have resolved their differences by a Stipulation dated February 8, 1984, whereby Kenko assigned to the Debtor all its rights to receive certain sums due it from th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE DECLARING THE DEFENDANT’S INDEBTEDNESS TO PLAINTIFF IN THE SUM OF $11,500.00 TO BE NON-DISCHARGEABLE IN BANKRUPTCY AND JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM PLUS INTEREST FROM THE DEFENDANT This is an action brought by the plaintiff, seeking a decree of nondischargeability of a pre-existing state court judgment in his ...
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MEMORANDUM AND ORDER ON APPLICATIONS FOR LEAVE TO INTERVENE On February 24, 1984 Lionel Corporation (Lionel) and Dynamics Corporation of America (DCA) entered into an agreement whereby DCA was, upon confirmation of the Lionel Plan of Reorganization, to purchase 82% of the capital stock of Dale Electronics, Inc. (Dale) for $59.5 million. For prior proceedings relevant to this matter, see Commit...
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*493ORDER The State Bank of Towner filed on December 6, 1982, a Complaint seeking turnover of funds collected by the Debtor’s employer pursuant to a garnishment commenced by the Bank prior to the Debtor’s filing for bankruptcy relief. Trustee for the Debtor, Phillip D. Armstrong, filed on December 30, 1982, an Answer asserting that the money withheld from the Debtor’s wages is properly property of...
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OPINION AND ORDER This matter came on for trial on November 17, 1983 upon plaintiffs complaint for an injunction to require defendant to sell inventory to it on a cash basis, for attorney’s fees and costs for an alleged violation of the automatic stay of 11 U.S.C. § 362(a), and to set aside an alleged preferential transfer under 11 U.S.C. § 547(b). While finding a violation of stay and gr...
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OPINION The issues presented in the controversy at hand are whether a debtor’s absolute right of dismissal of a chapter 13 proceeding is effected without court action, and, if it is not, whether we may delay the dismissal until the entry of an order protecting the rights of other parties which were acquired in reliance on the bankruptcy. For the reasons stated herein we find that the dism...
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MEMORANDUM The issue is whether a security interest in a semitrailer is perfected by filing with the Secretary of State or by notation on a certificate of title. Tennessee law controls. After consideration of the briefs, arguments, stipulations, and applicable authority, the court holds that a security interest in a semitrailer is perfected by filing with the Secretary of State. The following con...
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*475 MEMORANDUM OPINION This matter arises out of the filing of a complaint by the Trustee in Bankruptcy (“trustee”) to set aside a lien. The lien is held by the Farmers Home Administration (“FmHA”), an agency of the United States Department of Agriculture. The issue for determination is whether FmHA’s failure to file a proof of claim voids its otherwise valid lien. The FmHA, in ...
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MEMORANDUM OPINION This matter arises upon the motion of Chantilly Construction Corporation (“Chantilly”), debtor herein, to disqualify the counsel of defendant, John Driggs Company, Inc. (“Driggs”), in the underlying adversary proceeding. Chantilly filed its motion to disqualify the law firm of Lewis, Mitchell & Moore (“Lewis, Mitchell”) on August 26, 1983. The Court heard oral argument ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE AND JUDGMENT DENYING COMPLAINT FOR A DECREE OF NONDIS-CHARGEABILITY This is an action brought by the plaintiff for the purpose of obtaining a decree of *461nondischargeability of the defendants’ indebtedness to it on the grounds of willful and malicious conversion of secured property within the meaning of § 523(a)(6) of the Bankruptcy Code. Th...
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MEMORANDUM OPINION The sole issue remaining in this Chapter 11 case is the amount of compensation to be awarded to counsel for the Creditors’ Committee. Counsel for the debtor argues that the fee claimed is excessive. For the reasons stated herein, we find that counsel for the Creditors’ Committee has justified a fee award in excess of the standard compensation available to attorneys in r...
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MEMORANDUM The trustee seeks to avoid the transfer of a security interest in an automobile as a preference pursuant to 11 U.S.C.A. § 547 (West 1979). The elements of a preference are not disputed. The two issues presented are: (1) whether Ford Motor Credit Company’s (“FMCC”) security interest is excepted from avoidance by either 11 U.S.C.A. § 547(c)(1) (West 1979) or 11 U.S.C.A. § 547(c)(...
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MEMORANDUM OPINION AND DECISION RE: RELIEF UNDER CHAPTER 7 An involuntary petition was filed alleging the above-named debtor to be subject to the provisions of Chapter 7 of the Bankruptcy Code. The debtor contends that it is not a proper party to be the subject of involuntary relief under the provisions of Chapter 7 of the Bankruptcy Code as it is a farmer within the definition set forth in Sectio...
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ORDER This case is before the Court on the motion by the Georgia Federal Bank, FSB (formerly Georgia Federal Savings and Loan Association) (hereinafter referred to as the “Bank”) for relief from the automatic stay in the above-referenced Chapter 13 proceeding. The facts, which are not in dispute, are as follows: The Debtor filed her Chapter 13 petition on August 4, 1983. At that time, the...
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MEMORANDUM OPINION I. This proceeding arises from a motion of U.I.P. Engineered Products Corporation (“UIP”) for relief from the Section 362 automatic stay. 11 U.S.C. § 362 (Supp. V 1981). C.T.R., Inc. (“CTR”) as debtor-in-possession, LaSalle National Bank, as trustee of certain premises, and A.P. Machine and Development, Ltd. object to UIP’s motion. The issue before this court is whether UIP has ...
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MEMORANDUM OF DECISION This matter comes before the court upon a motion for reconsideration filed by Richard Labovitz, Esquire, seeking modification of this court’s order directing the refund of a portion of attorney’s fees paid in this dismissed Chapter 13 case. After notice, on March 20, 1984, this court held another hearing on the reasonableness of attorney’s fees paid in this case. ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING MOTION FOR LIEN AVOIDANCE In this case, the debtor seeks avoidance of liens on certain farm machinery which he characterizes as tools of his trade of a farmer and thus exempt to the extent of $4,000.00 under § 513.430(2) RSMo. He accordingly seeks to avoid under § 522(f)(2) of the Bankruptcy Code respondent John Deere’s lien on so mu...
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MEMORANDUM OPINION (1) Dischargeability of Plaintiffs Seduction Judgment and Underlying Claim Plaintiff seeks a determination that her state court judgment for seduction and breach of promise to marry against Defendant is non-dischargeable. The judgment was entered after a jury trial and verdict for plaintiff on March 21, 1983 by the Circuit Court of New Madrid County, Missou...
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OPINION Jules J. Hessen, the trustee in bankruptcy of Teltronics Services, Inc. (“Teltronics”) has filed a complaint against Edward M. Beagan, the President of Teltronics, and Beagan’s attorneys, Carl E. Person and Walter Reid, to enjoin these defendants permanently from initiating, or prosecuting, any legal proceeding in the name of Teltronics. By Order to Show Cause the trustee has requ...
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OPINION The issue in the case at bench is whether we should confirm the prepetition private sale of the debtor’s goods to an insider of the debtor, notwithstanding the trustee’s objections to the sale under 11 U.S.C. § 548(a) of the Bankruptcy Code (“the Code”). For reasons stated herein we will approve the sale. The facts of this case are as follows: 1 Owen J. Rogal (“Rog...
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ORDER GRANTING TEMPORARY IN-JUNCTIVE RELIEF AGAINST DEFENDANT AIR LINE PILOTS ASSOCIATION, INTERNATIONAL At Houston in said district came on for consideration the Emergency Motion for Emergency Relief and for Hearing Thereon filed by Continental Air Lines, Inc. (“CAL”); and it appearing to the Court that as part of the relief requested in its Emergency Motion, CAL requests that this Court...
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MEMORANDUM OPINION AND ORDER OF DISMISSAL THIS MATTER comes before the Court on the Motion for Relief From Automatic *34Stay filed by the Creditor Ruby Estes, and the Response to Motion and Request for Hearing filed by the Debtors. The first two allegations in the Motion assert that under the Chapter 13 Plan confirmed by this Court, the Debtors were to make current payments to this creditor of $2,...
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ORDER WITH REFERENCE TO VERO MALL LEASE Two individuals who do business as Vero Mall have moved (C.P. No. 7) for an order confirming that their sub-lease to the debt- or of certain premises by an assignment dated September 20, 1982, has expired under the provisions of 11 U.S.C. § 365(d)(1): “In a case under chapter 7 of this title, if the trustee does not assume or reject an executory contrac...
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ORDER DENYING MOTION FOR CONTEMPT CITATION This chapter 11 debtor asks that a judgment creditor, North Carolina National Bank, be cited for contempt of an order confirming the debtor’s plan. (C.P. No. 50). The motion was heard on April 17. It is denied. Because the State court has heard and, perhaps, will continue to hear facets of the issue before me, it may prove useful to state the basis for...
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ORDER ON MOTIONS FILED BY STATE OF FLORIDA IT IS rare, indeed, that an ordinary and generally mundane commercial litigation, the usual hallmark of a bankruptcy case turns into the morality play with a cast of corporate entities masquerading as messengers for deities and the sovereign State of Florida is the prime antagonist. This is precisely the nature of the proceeding pending before th...
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ORDER SETTING HEARING ON MOTIONS TO SET ASIDE DISMISSAL FOR APRIL 30,1984, AT 3:30 P.M. IN KANSAS CITY, MISSOURI Formerly, on March 29, 1984, this court issued its order dismissing the within chapter 11 proceedings with prejudice. At the time of the issuance of the order, the current bankruptcy court jurisdictional statute, S. 2507, extending the transition period, had not yet come into effect. It...
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OPINION AND ORDER The United Penn Bank (Bank), a creditor of Frank Dudley, a/k/a Frank E. Dudley (Dudley), commenced this proceeding seeking a modification of the automatic stay imposed by 11 U.S.C. § 362(a) in order to proceed with State Court remedies available to the Bank to gain possession of property purchased by the Bank at a Sheriffs Sale. Dudley filed an Answer to the Bank’s Compl...
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MEMORANDUM OPINION This matter comes before the Court upon the motion of Disclosure, Incorporated (“Disclosure”), co-defendant herein, to dismiss debtor’s second amended complaint 1 . Debtor-plaintiff, MBA Inc., trading as MBA Management Inc. (“MBA”), is in the business of personnel recruiting and placement. On October 20, 1982, MBA filed a petition for reorganization under Cha...
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ENTRY This matter came before the Court on the plaintiff’s Complaint to Recover Preferential Payment filed August 24, 1983. The defendant’s Answer was filed on December 19, 1983. On February 3 of this year, the defendant filed a pretrial memorandum. On February 7, 1984, a trial was held at which James S. Kowalik appeared as counsel for the plaintiff and Tony H. Abbott appeared for the defendant...
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Findings of Fact, Conclusions of Law, and ORDER re Security Interest in Payment-in-Kind Entitlements The matter before the Court is a Complaint for relief from the stay and reclamation. With respect to the portion of the Complaint regarding the stay, this Court’s final order issued on April 11, 1984, effectively terminated all dispute between the parties. The remaining controversy ripe for ju...
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OPINION Procedural Development of Case On September 11, 1983 the debtor in this Chapter 7 case, Joseph Delma Racca, filed a petition to amend Schedule B-4 of his original petition, filed April 11, 1983. The debtor seeks by his “petition to amend”, to claim certain additional property, not listed in his original Schedule B-4 as exempt. The trustee has filed an objection to the ame...
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MEMORANDUM OPINION This matter comes before the Court upon the stipulation of the parties as to the facts. The issue to be decided is whether a non-purchase money security interest held by Sunwest Bank in furniture owned by the Debtor, but kept in storage, may be avoided under 11 U.S.C. § 522(f)(2). *666In 1982, the Debtor obtained two loans from the Clovis National Bank, n/k/a Sun-west Bank, gra...
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*183 MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint to Determine Dischargeability filed by the Mid-American Bank and Trust Company. A Trial was held in this case, at the conclusion of which the parties agreed to submit the case to the Court based upon the evidence taken and the submission of certain documentary evidence that was not available at...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Complaint to Enjoin the Debtors filed by the Wapakoneta Production Credit Association. It has been agreed between the parties that the merits of the Complaint address primarily issues of law, and that an adjúdication of those issues may be reached based upon the submission of written arguments of counsel as well as any exh...
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OPINION At issue in this case is whether the defendants’ judgment lien on the debtors’ real property is avoidable under 11 U.S.C. § 506 of the Bankruptcy Code (“the Code”). For the reasons stated herein we find that it is. The facts of this case are as follows: 1 The debtors filed a petition for the repayment of their debts under chapter 13 of the Code on July 6, 1981, alt...
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OPINION There are two issues in the case at bench, the first of which is whether the claim of a debtor’s former spouse in a divorce action for equitable distribution of the debtor’s property, — including the value of the debtor’s license to practice law and his increased earning power generated therefrom, — is (as the former spouse contends) a claim for alimony and, hence, not dischargeab...
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ORDER Plaintiff, Federal National Mortgage Association, originally filed a complaint to have the automatic stay lifted. Subsequently, plaintiff filed to recover reasonable attorney’s fees and expenses and interest on defaulted post-petition payments. In In re Catherine Christian, 35 B.R. 229 (Bkrtcy.N.D.Ga.1983) and In re Dooley, Case No. 82-02886A (Bkrtcy.N.D.Ga., Jan. 31, 1984) appeal filed, thi...
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ORDER The above and foregoing matter came on before this court for hearing on March 1, 1984, on the debtor’s objection to the proof of claim of General Motors Acceptance Corporation (GMAC) and the debtor’s motion to modify his Chapter 13 plan. Present at the hearing were counsel for the debtor and GMAC. The facts relative to the matters pending before the court are as follows: On February 2...
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AMENDED MEMORANDUM OPINION AND ORDER CONVERTING CHAPTER 11 CASE TO CHAPTER 7 CASE Introduction: Atlantic Richfield Oil Co. (Arco) filed a motion to convert this Chapter 11 case to Chapter 7 under 11 U.S.C. § 1112(b)(2) because of the Debtors’ inability to effectuate a plan. The Debtors have, in fact, filed a Second Amended Plan (plan), which the Debtors have conceded is their bes...
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OPINION Lawrence S. Strauss (debtor) obtained an educational loan in May of 1969 to enable him to attend the University of Illinois. The loan agreement provided that he was to begin to repay the loan pursuant to a payment schedule nine months after he ceased being a student. He terminated his studies in June of 1973, and in March of 1974 began repaying the loan, as provided for in the loa...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DECLARING DEFENDANT’S INDEBTEDNESS TO PLAINTIFF TO BE DISCHARGEABLE IN BANKRUPTCY The plaintiff bank sues for a decree of nondischargeability of all that the defendant currently owes it on the basis of a contention that defendant intentionally falsified financial statements as to the existence of a prior lien on three pieces of ...
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MEMORANDUM OPINION Plaintiff has filed a complaint seeking a determination that certain indebtedness owed it by Defendants is nondischargeable under 11 U.S.C. § 523(a)(2)(B). In support of its complaint, Plaintiff alleges that Defendants knowingly and fraudulently submitted materially false financial statements to it in order to induce Plaintiff to make the loan from which the indebtedness aris...
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ORDER This case is before the court upon a “Motion for a Finding that Debtor is not in Default of a Stipulation Dated June 21, 1983 and for Injunctive Relief or, in- the Alternative, Motion for Relief from Order of Court” filed herein by the Chapter 11 Debtors-in-Possession, and the Objections thereto filed by Bank East Savings Bank and Trust Company and the Small Business Administration (colle...
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This is an adversary proceeding brought by the debtor in possession, Claudette Frank, (“Frank,” the “plaintiff,” or “debt- or”) pursuant to section 1107(a) of the Bankruptcy Reform Act of 1978, (the “Code”) 11 U.S.C. § 1107(a), to set aside the sheriffs sale of her share in a one family residence located at 67 Colonial Drive, Massapequa, New York, owned by her and her husband, Albert Frank, to ...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motion for the Enlargement of Time to file a Complaint to Determine Discharge-ability. Pursuant to an Order of this Court dated January 31, 1984, the parties agreed to submit written arguments regarding this Motion and to have the Court reach a decision based thereon. The Court has reviewed the arguments of counsel a...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Complaint for Recovery filed by the Trustee in the related bankruptcy case. On February 23, 1984, a Pre-Trial conference was held in this adversary proceeding, at which the Court Ordered the parties to submit any written arguments they wished this Court to consider regarding the merits of the Complaint. Although not specif...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motion for Summary Judgment filed by the Trustee-Plaintiff. PACTS The Complaint in this adversary case seeks a determination as to whether or not the Trustee should be able to sell two (2) parcels of real estate free and clear of liens. An adversary proceeding is required by Bankruptcy Rule 7001, inasmuch as the Debtor is the...
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DECISION Heard on March 1, 1984, on the trustee’s request for authorization to solicit offers on certain assets of the debtor Kenneth Raymond. Kenneth and Jane Raymond filed a joint Chapter 13 petition on July 26, 1983. The first confirmation hearing was held on August 30, 1983, and since then there have been several continued hearings. On January 20, 1984, the debtors filed a modified plan. To da...
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DECISION Before the Court is the trustee’s motion to reinstate a complaint objecting to discharge, which he had previously withdrawn on July 8, 1981. STATEMENT OF THE CASE Brief reference to the background of this matter is helpful to some understanding of the parties’ behavior. According to the trustee and two complaining creditors (Newport National Bank and Peerless Co.), the ...
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MEMORANDUM This adversary proceeding was initiated by the plaintiffs, Donald and Helen Bra-man, seeking a judgment of $120,000.00 against the debtor, Francis Dale Samford, and seeking to have that judgment declared nondischargeable. The plaintiffs also seek a judgment for interest on this sum and an award for punitive or exemplary damages. Upon consideration of the evidence presented at the heari...
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ENTRY This matter comes before the Court upon the Objection of Thomas H. Kennedy and R. Victoria Kennedy (the “Kennedys”) to the Appointment of Don A. Tabbert and Bayh, Tabbert & Capehart to Pursue Lawsuits and a Request for Hearing Thereon filed December 5, 1983. On January 9, 1984, the Kennedys filed a brief in support of their objection, along with a motion for hearing on that issue. ...
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MEMORANDUM The matter being considered here is the motion of the Brookfield Production Credit Association to dismiss the debtors’ Chapter 11 Bankruptcy petition filed on March 30, 1984. An expedited hearing, upon mov-ant’s request, was conducted on April 13, 1984. This memorandum is based upon the arguments of counsel at the hearing, and the Court’s consideration of the contents of this file, a...
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MEMORANDUM OPINION Pending for decision is a Complaint filed by Thomas W. Garland, Inc., (Garland’s), Debtor-in-Possession, to recover two allegedly preferential transfers made by Garland’s to the United States of America, Internal Revenue Service (IRS), a few weeks prior to filing its Petition under Chapter 11 of the Bankruptcy Code. The cause was submitted on a Stipulation of Pacts whic...
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MEMORANDUM OPINION The matter in issue before this court relates to a contest between the United States Internal Revenue Service (IRS) and the Trustee, whereby the trustee seeks to reduce a claim filed by the IRS based upon a disallowance by IRS of a carry back loss. Understandably, the trustee and the IRS have submitted a Stipulation of Facts, because of the inability to develop a complete scena...
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DECISION ON APPLICATIONS FOR ALLOWANCES FILED BY THE TRUSTEE, ATTORNEY FOR THE TRUSTEE, AND THE ATTORNEY FOR THE DEBTOR Hindsight being better than foresight by a darned sight, it now appears that this bankruptcy case might not have been commenced had the results been known in advance. The trustee in bankruptcy has on hand a balance of $23,148.70, whereas the timely filed general unsecure...
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MEMORANDUM OPINION AND ORDER This matter is before the court upon the Application to Amend Proof of Claim filed on February 2, 1984 by W.T. Barbour and the objections to the application filed by the debtor and Peoples Bank & Trust Company. A hearing was held on March 19, 1984. W.T. Barbour filed a secured proof of claim on November 9, 1983, in the amount of $1,036,997.10. The compone...
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MEMORANDUM The plaintiffs, Ray Emrich and Betty Emrich, initiated this adversary proceeding in an attempt to recover a debt of $30,-000.00 from the debtor, Francis Dale Sam-ford. The plaintiffs seek a judgment in the amount of the indebtedness plus interest, an award for punitive damages and relief from the stay pursuant to 11 U.S.C. § 362 (West 1979) in order to foreclose on their securi...
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MEMORANDUM OPINION With leave of Court and pursuant to 11 U.S.C. § 1329, the Debtor, on February 24, 1984, filed a modified Plan, which came before the Court upon hearing for confirmation on April 4, 1984. The only objection to the modified Plan was filed by Commercial Credit Corporation, holder of a second Deed of Trust upon certain lots of land upon which the Debt- or’s residence i...
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MEMORANDUM OPINION This matter came before the Court on the filing of a motion to avoid a judicial lien by the debtors, Gary R. Webb, Sr., and Nancy L.B. Webb. The parties filed a stipulation of facts and memoranda of law in support of their respective positions. After considering the argument by counsel for the parties and the applicable law, this Court renders the following findings of ...
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ORDER DENYING MOTION FOR PHYSICAL EXAMINATION At the hearing on the Plan the debtor revealed that he was being treated for bone marrow cancer and a kidney problem which did not require dialysis. Production Credit Association, a substantial creditor in this case, has moved the Court for a medical examination of the debtor pursuant to the provisions of Rule 7035, Rules of Bankruptcy Procedure. At th...
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MEMORANDUM The Federal Deposit Insurance Corporation (“FDIC”) seeks relief from the § 362 *407 stay. The issues are: (1) whether nonbusiness, consumer, wage-earning debtors are eligible for Chapter 11 relief; and (2) whether the debtors’ residence is “necessary to an effective reorganization” within the meaning of 11 U.S.C.A. § 362(d)(2)(B) (Westl.979). 1 The court...
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OPINION AND ORDER ON MOTION TO DISMISS AS TO OLD KENT BANK This adversary proceeding is brought by three banks to determine their interest in funds deposited in debtor’s account in a fourth bank. The defendant bank, Old Kent Bank and Trust Company (Old Kent), of Grand Rapids, Michigan, filed a motion to dismiss. The motion to dismiss is filed pursuant to Bankruptcy Rule 7012(b) and F...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Motion of defendant, James H. Wilkins (“Wilkins”) to Dismiss the. Complaint filed under 11 U.S.C. § 548 to Avoid a Fraudulent Transfer. Additionally, Wilkins has moved to dismiss a crossclaim on the basis that the Court is without jurisdiction and that the crossclaim is improper under F.R.C.P. 13(g), applicable here by...
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MEMORANDUM DECISION Plaintiff seeks a determination of the validity, priority and amount of its lien. (C.P. No. 4). Neither defendant has answered. At the trial, held April 3, after three continuances requested by the parties, the defendant answered orally, admitting all allegations of the amended complaint. The trustee answered orally admitting all factual allegations in the amended complaint, bu...
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ORDER DENYING MOTION TO REMOVE TRUSTEE AND ORDER DISCHARGING ORDER TO SHOW CAUSE The motion (C.P. No. 334) of three creditors for the removal of the trustee was *27 heard on March 8 together with their motion (C.P. No. 333) that the trustee and the Securities Investors Protection Corp. (SIPC) be held in contempt. Contempt is charged on the ground that: “The TRUSTEE and SIPC have willfully a...
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MEMORANDUM OPINION The trustee in bankruptcy, asserting rights and powers of a hypothetical lien creditor pursuant to 11 U.S.C. § 544, challenges a judicial lien asserted by Bank of Cadiz & Trust Company against certain of debtor’s real property. Specifically in issue is whether the Bank of Cadiz & Trust Company obtained a judicial lien in compliance with Kentucky law when a writ of execu...
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MEMORANDUM AND ORDER DENYING SECURED CLAIM STATEMENT OF THE CASE The within cause comes before the Court for a determination of the validity of John Z. DeLorean’s alleged secured claim against the DeLorean Motor Company. On January 25, 1983, John Z. DeLorean (hereinafter referred to as JZD) DeLorean Motor Company (hereinafter referred to as DMC) filed a stipulated order to determine ...
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MEMORANDUM AND DECISION The trustee of Flower City Nursing Home, the bankrupt in this case, which was converted from a Chapter XI to Chapter IV under the 1898 Bankruptcy Act, brought this action against the bankrupt’s receiver, Park Hope Nursing Home, Inc., to compel turnover of medicaid capital cost reimbursement funds. All parties agree the funds on hand are reimbursement for capital ra...
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DECISION & ORDER Trustee moves to reargue the denial of his application for double trustee’s fees. On April 28, 1981, the debtor, Clark Smathers Lakeville Manor, Ltd. (“debtor”), filed a voluntary petition under Chapter 11 of the Bankruptcy Reform Act of 1978 (“Code”). The debtor continued to operate its business as a debtor-in-possession pursuant to Section 1107 of the Code. Subsequ...
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DECISION ON APPLICATION FOR REIMBURSEMENT TO INDIVIDUAL MEMBERS OF OFFICIAL CREDITORS’ COMMITTEE Having reviewed and determined the applications for compensation that were filed in this confirmed Chapter 11 case there remains for consideration the question whether individual members of the official unsecured creditors’ committee may be reimbursed for their travel and lodging expenses incu...
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MEMORANDUM AND ORDER This matter is before the Court on the Plaintiffs Motion for Summary Judgment filed on March 12, 1984, alleging that all material facts necessary for a finding of non-dischargeability have been previously established by a North Dakota State Judge’s Findings of Fact. The Motion was accompanied by a Brief as required by our local rules. Bankruptcy Local Rule 3, adopted ...
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OPINION The question in the matter at bench is whether we should grant the request of former counsel to the trustee for fees and expenses in light of the applicant’s removal from the case because of conflict of interest. For the reasons stated herein we will deny the allowance of fees but grant the request for expenses. The facts of this case are as follows: 1 The Philadel...
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MEMORANDUM This is a dispute over a herd of hogs and 448 acres of land. The court will deal first with the claims to the hog herd since all the parties assert claims to the hogs. Part I The debtors, Dick and Barbara Spears, had been engaged in large scale farming for several years before they filed their petition under chapter 11 of the Bankruptcy Code. That was in September, 19...
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MEMORANDUM The questions presented are (1) whether the exception to discharge set forth in 11 *25 U.S.C.A. § 523(a)(8) 1 applies to the educational loan obtained by the plaintiff through the PLUS loan program, and (2) whether the repayment of this educational loan would impose an undue hardship on the plaintiff. After consideration of the exhibits, testimony, ...
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MEMORANDUM This adversary proceeding was initiated by the plaintiff, Energy Marketing Corporation (hereinafter referred to as EMC), seeking a judgment for $20,390.55 against the debtor, William H. Sutton, (hereinafter referred to as the debtor), and seeking to have that judgment declared nondischargeable or in the alternative to have the debtors’ discharge denied. The plaintiff asserts th...
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OPINION The debtor objected to the allowance of certain claims by the IRS, and the IRS has responded by moving to strike the debtor’s objection. The debtor initially had filed a Chapter 11 petition. The IRS filed a proof of claim which included a delinquency for federal unemployment taxes, social security taxes, and income taxes. Subsequently, the debtor converted its Chapter 11 case to a Chapt...
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OPINION The Chapter 7 trustee filed this complaint to recover property, in this case a boat, for the estate. The trustee alleged that defendant, a law firm, accepted the boat as payment for defending Jerry Melton against certain criminal indictments when defendant possessed sufficient knowledge of the original transfer of the boat to permit the trustee to avoid the transfer to defendant. The defe...
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FINDINGS OF FACT On December 28, 1981, the 341 Meeting of Creditors in this Chapter 11 proceeding was held. At that meeting the date set as the last date upon which a claim could be filed was set to be: “Any Date Prior to Approval of the Disclosure Statement or as Fixed by the Court”. The Court did not fix another date; therefore, the date that the disclosure statement was approved was the bar ...
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MEMORANDUM AND ORDER RE MOTION TO COMPEL SALE OF ASSETS The issue before the Court is whether the trustee can sell, pursuant to 11 U.S.C. § 363(h), property that was held by the debtor and his non-debtor spouse as tenants by the entirety on the day of the bankruptcy filing where the debtor died prior to the filing and allowance of the § 363(h) action. This internecine feud of the Abd...
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ORDER This matter came before the Court upon a motion for use of cash collateral filed by the Debtors. By their motion, the Debtors, who are dairy farmers, seek permission to dispose of the cash proceeds as derived from the sale of milk. This request was objected to by the First National Bank of Fergus Falls (Bank) who appeared at a hearing held on March 22, 1984. It is the Bank’s position that...
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MEMORANDUM OPINION AND ORDER In February of 1976 debtors decided to move from Alaska. They sold their house, which contained Eugene Miller’s law office, to a corporation owned by clients of Mr. Miller, Dallas and Sara Sears. After extensive negotiations the Sears took possession of the property in November of 1976. In January of 1977, the Sears became dissatisfied with the sale and wrote ...
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MEMORANDUM OPINION This matter came before the Court upon the complaint of the Bank of Albuquerque (the Bank) to determine dischargeability of debt. At the trial on the merits the evidence showed that the debtor, Richard Leo Dow, Jr. (Dow) obtained a loan of $3,500 to do repairs to a residence which Dow then stated, by means of a financial statement dated January 31, 1983, that he owned. In fact, ...
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DECISION AND ORDER Presently before the Court are objections to the confirmation of the First Amended Plan of Reorganization. A hearing was held on this matter on January 9, 1984. Post-hearing briefs were filed on February 8, February 22, and March 1, 1984. FACTS On November 5, 1982, Debtor Paul Tipps filed a voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code ...
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MEMORANDUM OPINION After notice a hearing upon confirmation of the debtors’ plan was held on April 4, 1984. The trustee, Robert W. Myers was present. There were no other appearances. The debtors' petition and chapter 13 statement show priority debts of $10,247, secured debts of $78,500 and unsecured debts of $6,400. The plan provides that the debtor will pay to the trustee the sum of $305 per...
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MEMORANDUM ON DEBTOR’S MOTION FOR DETERMINATION OF HIS COMPLIANCE WITH ORDER NO. 67 The question before the court is whether the duty, pursuant to 11 U.S.C.A. § 521(3) (1979), of an involuntary debtor to surrender property of the estate is superseded by his Fifth Amendment claim of privilege against self-incrimination. 1 I Pursuant to 11 U.S.C.A. § 303(h) (1979), an orde...
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MEMORANDUM The issues are: (1) whether plaintiff’s loan to the debtor was obtained by fraud and is nondischargeable under 11 U.S.C.A. § 523(a)(2)(A) (West 1979); (2) whether plaintiff is entitled to prejudgment and postjudgment interest at 18%, the rate provided in the promissory note; and (3) whether plaintiff may recover attorneys’ fees from the debtor as called for in the note. For the...
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OPINION I. BACKGROUND On August 13, 1979, the appellant, Pan American Bank of Los Angeles, loaned $91,-000 to Nick and Clara Mallas who agreed to pay interest thereon at 13.5% on a monthly basis, and then pay the principal amount in full on August 12, 1980. The loan was secured by a deed of trust and assignment of rents on commercial property in La Puente, California, owned by the bo...
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MEMORANDUM AND ORDER RE: DEBTOR’S MOTION TO REOPEN CASE I. BACKGROUND This matter comes before the court on a motion, styled a petition; of Gregory Alan Carter, Sr. (debtor) to reopen his chapter 7 case pursuant to 11 U.S.C. § 350(b) 1 and Rule 5010, Fed.R.Bankr.P. 2 The history behind the motion as gleaned from the moving papers, briefs of counsel and debt- or’s chapter 7 petition is...
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MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEMAND FOR JURY TRIAL STATEMENT OF THE CASE These adversary proceedings come before the Court for a determination on the issue of the right to a jury trial in a preference action under the United States Bankruptcy Code. These cases have been consolidated for purposes of disposition because of factual similarities. Plaintiff,...
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STATEMENT OF FACTS On February 21, 1984, A. David Laudani, Debtor filed a Chapter 7 bankruptcy petition listing among his creditors James P. Wheeler and Sheila Wheeler. Debtor listed the Wheelers as creditors having an unsecured claim without priority, for an unknown amount which was claimed to be “disputed, unliquidated and a contingent liability” (pending lawsuit). The creditors claim ar...
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MEMORANDUM OPINION This Cause presents dischargeability issues under 11 U.S.C. § 523(a)(2). Debtor Defendant sold encumbered hogs to the Plaintiff, knowing of the encumbrances, without disclosing the encumbrances to the Plaintiff. Debtor received the fair market value for the hogs, from the Plaintiff, on each sale. Payment, on each occasion, was made by check, drawn by the Plaintiff,...
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*929 DECISION On July 14,1981, the Trustee for Carousel Candy Co., Inc., instituted two adversary proceedings which were consolidated by Order dated May 3,1982. The consolidated adversary proceeding essentially involved two causes of action. The Trustee sought an order directing the turno'ver of property of the debtor’s estate which was allegedly transferred by the defendants. Fo...
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DECISION AND ORDER A hearing was held on February 21, 1984 at which time the Court considered whether an order should be entered, directing the defendant law firm to turn over to the Trustees of Vantage Petroleum Corp., Lawrence and Cheryl Iorizzo, Bay Isle Oil Co., Inc., Sans Souci Corp., Page Motors Inc., Larch Oil Co., Inc., and Larch Resources, Inc. (“the debtors”), all files and reco...
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DECISION This adversary proceeding went to trial on the Second Amended Complaint filed by plaintiff Montgomery Ward and Company, Inc. In such Second Amended Complaint, plaintiff relies upon 11 U.S.C. § 727(a)(2) in seeking relief against defendants. That is, the relief sought is that defendants be denied a discharge. Defendants are debtors in their related bankruptcy case. The adversary p...
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MEMORANDUM OPINION IN RE CLAIM OF NON-DISCHARGEABILITY THIS IS a Chapter 7 liquidation case, and the matter under consideration is a claim of non-dischargeability, asserted by Nicholas Themalakes (the Plaintiff), who instituted the above-captioned adversary proceeding. The claim of non-dischargeability of a debt *382allegedly owed to the Plaintiff by James Sponheim (the Debtor/Defendant), is base...
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ORDER DISMISSING INVOLUNTARY CASE Upon motion of the Court, an evidentiary hearing was held on March 12, 1984 to consider abstention or dismissal of this proceeding pursuant to 11 U.S.C. Sec. 305(a)(1), and due notice of said motion having been given by mail to the debtor and petitioning creditors, and after hearing the evidence presented by debtor and petitioning creditors, the Court is ...
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ORDER On January 30, 1984, the plaintiff, Proper Yacht Specialists, Inc. (“Proper Yacht”), filed a “Motion for Entry of Default Judgment and in the Alternative for an Order Compelling Defendants to Produce Documents” (hereinafter referred to as the “First Motion to Compel”). On February 14, 1984, Proper Yacht filed a “Motion for Order to Compel Discovery and Entry of Sanctions” (hereinafter referr...
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ORDER On February 8, 1984, Penrod’s of Lenox, Inc. (“Penrod’s”), filed an “Application for Allowance of Claim for Fees and Expenses” in the above-referenced Chapter 11 proceeding. Penrod’s requests that $1,200.00 attorney's fees and $74.00 expenses be paid as a first priority expense under §§ 507(a)(1) and 503 of the Bankruptcy Code. Penrod’s’ claim arises in connection with its preparation and...
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MEMORANDUM AND ORDER This matter came to be heard upon a motion to dismiss filed by defendant, Continental Illinois National Bank and Trust Company of Chicago, challenging the subject matter jurisdiction of this court to entertain the instant adversary proceeding filed by plaintiff, Churchill Cabinet Co. The court concludes that it may properly exercise subject matter jurisdiction over th...
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MEMORANDUM OPINION AND ORDER This cause came to be heard upon the motion to determine venue filed by DONALD C. SHINE, as Trustee for 33 debtors-in-possession in the consolidated proceedings before, this Court entitled In re Cash Currency Exchange, Inc., 37 B.R. 617 (D.C.Ill.1984), represented by GARDNER, CARTON & DOUGLAS, and upon the response of MICHAEL P. RYAN [Debtor], repre...
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ORDER This matter came before the Court on the debtors’ motion for an order staying the effect of this Court’s order of March 29, 1984 pending appeal pursuant to Bankruptcy Rule 8005. The order of March 29, 1984 had granted Helen Shriver, a contract for deed vendor, relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to complete cancellation of her contract for deed with the deb...
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MEMORANDUM OPINION This matter came before the Court on defendants’, Ben Bronstein (Bronstein) and Hank Harenberg (Harenberg), motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendants seek summary judgment on Count I of the plaintiffs’, Todd and Lynn Klein (Kleins), complaint. That count is based on a claim under the New Mexico Unfair Practices Act. N.M.Stat....
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DECISION AND ORDER ON MOTION TO DISMISS On November 5, 1980 Princeton Industries, Inc. filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code. On July 14, 1981 upon the motion of the Official Committee of Unsecured Creditors, the case was converted to a Chapter 7 proceeding. On March 23, 1983, the trustee for the debtor commenced an adversary proceeding...
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DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT On November 5, 1980, Princeton Industries, Inc. (Princeton) filed a voluntary petition pursuant to Chapter 11 of the Bankruptcy Code. On July 14, 1981, this case was converted to a Chapter 7 proceeding pursuant to a motion brought by the Official Committee of Unsecured Creditors. By order of this court on July 14, 1981, Bruce D. Scherling was appoi...
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On February 10, 1982, Adwar Video Corp. (Adwar) filed a voluntary petition for reorganization under Chapter 11 of the Bankruptcy Code and was continued in possession of its property. On October 3, 1979, Adwar entered into a telephone and communications rental and service contract with T.N. Communications Corporation (TN). The contract was amended on November 29, 1979 and March 14, 1980 to provi...
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*627MEMORANDUM DETERMINATION OF LIEN VALIDITY This case involves the validity of a mechanics lien filed by C.H. Reed, Inc. The facts necessary for a determination are undisputed. C.H. Reed, Inc. provided work and materials for the installation of automobile lifts, underground tank and lubrication equipment on premises owned by the debtor. This work was performed from February 16, 1982 until its c...
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*616 MEMORANDUM AND ORDER The matter before the court is the plaintiff’s motion for summary judgment in an adversary proceeding in which they seek the determination of the dischargeability of a debt owed to them by the debtors. The debt is based upon the judgment of a Florida state court which determined that the debtor “misled, concealed, misrepresented and/or fraudulently ...
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MEMORANDUM OPINION THIS IS a pre-Code Chapter XI case and the matters under consideration are eight Applications to Reject Executory Contracts, filed by The Eli Witt Company (Eli Witt), a debtor involved in the above-captioned arrangement proceeding. Although the final evidentiary hearing on the Applications was held on two separate occasions, it is appropriate and proper to treat all the Appli...
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MEMORANDUM OPINION I The issue presented to this Court ultimately concerns the question of when does a creditor’s judgment attach to intangible personal property of a debtor. The resolution of this issue will determine whether the defendant herein, Peoples Gas Light and Coke Company (the “defendant”), received a preferential transfer pursuant to 11 U.S.C. § 547 (Supp. V 1981). I...
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Findings of Fact, Conclusions of Law and ORDER Granting Motion to Modify Stay The matter before the Court is a Motion to Modify Stay filed by the Metropolitan Life Insurance Company (Metropolitan). Present at the hearing were attorneys Alvin J. Ford and Edward J. Keane for the Debtors and Steven H. Krohn for Metropolitan. Being fully advised and pursuant to F.R.B.P. 7052, t...
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MEMORANDUM OF DECISION In this chapter 7 proceeding, the trustee has filed a complaint seeking turnover of the unaccrued royalty interest under an oil and gas lease. The trustee and a creditor *369 have filed objections to the debtor’s exemption of his unaccrued royalty interest. The matters are joined for the purpose of this decision. The issue which must be resolved is...
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OPINION Presently before the Court is an objection filed by John Ed Rogers, a judgment creditor of the debtor, to the claim of the homestead exemption by Gary Jefferson Byrd, the debtor, on certain property located in Harris County, Texas. A hearing on said objection to the debtor’s claimed homestead exemption was held on November 3, 1983. John Ed Rogers, the objecting judgment creditor, alleges ...
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ORDER DISMISSING CASE This matter came before the Court on the motions of Farmers Home Administration (“FmHA”) and Koch Elevator to dismiss this case pursuant to 11 U.S.C. § 1112(b). The motions to dismiss were supported by Commodity Credit Corporation (“CCC”), Ledyard State Bank, Dennis Stolkes, Massey Ferguson Credit Corporation, Art Maloney, Northern Investment Company, the United Stat...
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MEMORANDUM OPINION This is the second time the Debtors have submitted a Chapter 13 Plan to this Court *302 for confirmation, and the second time the First Interstate Bank of Roswell has vigorously objected to its confirmation. The Debtors filed a petition for relief under Chapter 13 January 26, 1983. For approximately one year prior, Mr. Eppers had been involved in livestock operations, run...
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MEMORANDUM AND ORDER At issue is the relative interests of General Motors Acceptance Corporation (GMAC) and the Trustee in insurance proceeds derived from damages to the Debt- or’s truck which was repossessed and sold by GMAC. On November 29, 1983, GMAC moved this Court for an order requiring the Trustee to pay over to it the sum of $5,638.90 representing payments received from United Sta...
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MEMORANDUM AND ORDER The matter before the court is the objection of the trustee to the motion of Virginia National Bank (the bank) for relief from the automatic stay afforded by 11 U.S.C. 1 § 362 2 so that the bank may pursue its state court remedies. The trustee contends that the bank has no lien upon the property of the debtor, and, therefore, is not entitled to relief from the stay. F...
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MEMORANDUM OPINION Plaintiff, the Commonwealth of Virginia, is seeking to set off an unsecured claim against Debtor/Defendant, Shelby Thacker Haley’s claim against the Commonwealth for a refund of her employee contributions to the State retirement system. The issue is whether Virginia Supplemental Retirement System contributions, claimed as exempt under Code of Virginia § 34-4 (Supp.1983), ma...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DETERMINING DEBT DISCHARGEABLE Quality Plumbing & Heating Co., Inc., by Attorney Roger Sage of Lauer & Meyer, having filed a Complaint seeking a determination of the dischargeability of a debt; and the Debtors, by Attorney Robert P. Dean, then of Fredel & Dean, S.C., having filed an Answer; and the matter coming on for trial before the Court; and the...
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MEMORANDUM OF DECISION INTRODUCTION This is a dispute over ownership rights in two properties, a Texas ranch and a Mississippi farm. The debtor holds record title, but the plaintiffs claim ownership by constructive trust. The constructive trust claims rest on an assertion that the record title holder defrauded them out of the purchase price prior to the filing of this Chapter 11 case...
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ORDER DENYING MOTION TO CONFIRM THIS MATTER comes before the Court on the Chapter 13 Trustee’s Objection to Confirmation of the Debtor’s proposed Plan. The basis of this objection is that the Debtor is the owner of a V-.t undivided joint interest in a residential property, such l/< interest having a value of approximately $15,000.00. The Debtor, in order to protect this interest has claimed the C...
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MEMORANDUM OPINION This matter comes before the Court on motion by the debtor to avoid a judicial lien pursuant to 11 U.S.C. § 522(f). Based on the following findings of fact and conclusions of law, the motion is sustained. The debtor before the Court filed a petition for relief under Chapter 7 on August 18,-1983. Set forth in the schedules made a part thereof is listed real property with a stated...
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MEMORANDUM ORDER This matter came before the Court on the Debtors’ complaint seeking to avoid the security interest or lien of the Doanes created by the Debtors’ assignment of their vendor’s interest in a contract for deed. The parties agreed that no factual issues existed, and submitted the matter on cross motions for summary judgment. Now, based on the file and arguments of counsel the Court ma...
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MEMORANDUM OPINION AND ORDER In the plan proposed by debtors, interest on the secured debt was to be paid at 8.5%. Two classes of secured creditors rejected the plan on that ground, also asserting that the plan was not feasible. In an Order dated December 2, 1983, the Court sustained the objection to the proposed interest rate and directed that the plan be redrawn to conform to the rate d...
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*19 DECISION ON REQUEST FOR JURY TRIAL On March 14, 1984 an involuntary Chapter 7 petition was filed against William R. Drexler. The petitioners are Michael H. Cockell in the capacity of underwriter for the G.N. Rouse Syndicate and as Lead Underwriter for all other underwriters at Lloyd’s of London subscribing to contracts designated as B00021 and B00090 and Manning Beard Limited...
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DECISION ON MOTION TO DISMISS CASE OR CONVERT CASE TO CHAPTER 7 PROCEEDING The first mortgagee in this Chapter 11 case has moved under 11 U.S.C. § 1112(b)(2) for a dismissal or a conversion to Chapter 7 on the ground that the debtor is, and will remain, unable to prepare a reorganization plan which will be affirmatively accepted by a single noninsider class of creditors as required under ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On October 17, 1983, Phillip E. Warren (hereinafter, the Debtor) filed a petition for relief from creditors pursuant to Chapter 7, Title 11, U.S.C. (hereinafter, the Code). On November 30, 1983, Michael J. Balanoff (hereinafter, the Trustee) filed an objection to the Debtor’s claimed homestead exemption in real property l...
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MEMORANDUM OPINION AND ORDER This matter is before the Court upon the request of Ford Motor Credit Corporation (“FMCC”), for the payment as an administrative expense of $13,198.24 representing missed interest payments under an “adequate protection agreement.” BACKGROUND The issues raised by FMCC’s request for administrative expenses are not unique to this case. When a chapter 11...
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DECISION ON MOTION FOR RELIEF FROM AUTOMATIC STAY On December 21, 1983 the debtors, husband and wife, filed a joint Chapter 13 petition. No objection to confirmation was made and the plan was confirmed by the Court on January 24, 1984. Federal National Mortgage Association (Federal), a creditor, had on January 19, 1984 filed a motion for relief from the automatic stay, seeking relief so t...
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OPINION In the case at bench both parties have moved for summary judgment on the debt- or’s complaint in which he seeks rescission of a loan contract and statutory damages for the defendant’s alleged violations of the Truth in Lending Act (“the TILA”), 15 U.S.C. §§ 1601-1667e. 1 For the reasons stated herein we will grant the defendant’s motion for summary judgment but deny the...
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MEMORANDUM AND ORDER The Amarillo National Bank, in adversary proceeding number 283-0115, had challenged the entitlement of the debtors, Huey Foster Grant and Taffy Jane Grant, to discharge. The thrust of the objection to discharge was that the debtors had a interest valued at $13,914.50 that either had vested or would soon vest in a retirement plan and in a profit sharing plan established by t...
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ORDER This case having come before the court upon motions filed by each of the above captioned parties seeking Relief from the Automatic Stay in order that they might proceed to enforce their alleged rights as secured creditors in certain collateral property; and the trustee in Bankruptcy having objected to such relief and having challenged the validity as against the trustee of the alleged sec...
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DECISION AND ORDER This is an adversary proceeding brought pursuant to 11 U.S.C. Section 522(f) by William C. Blake, a Chapter 13 debtor, seeking to avoid a judicial lien to the extent that it impairs a statutorily authorized right to an exemption in his home. I FACTS On March 17, 1983 the debtor, William C. Blake, filed a voluntary petition under Chapter 13 of the Bankrupt...
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*610 OPINION At issue in this adversary proceeding is the right to possession of a 1980 Freightliner tractor (hereinafter “tractor”), which is currently in the possession of the plaintiff as a result of the plaintiffs pre-petition repossession of it from the Chapter 13 debtors-defendants. The plaintiff seeks, pursuant to' Section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), relief from ...
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*285 MEMORANDUM OPINION In this adversary proceeding, which was brought by the plaintiff pursuant to Section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), the only disputed issue is which of two secured creditors has the priority security interest in the proceeds of the Chapter 11 debtor’s sale of certain of its inventory collateral. For the reasons hereinafter given, we find that the pl...
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MEMORANDUM At issue is whether, for purposes of 11 U.S.C.A. § 547(b) (1979), the debtor was insolvent when it transferred to the defendant payments totaling $213,541.45 during the 90-day period prior to commencement of its chapter 11 reorganization. Also in question is whether the wire transfer of $91,223, which was paid to defendant on a Monday after defendant shipped goods on the p...
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MEMORANDUM OPINION This matter came before the Court upon the filing by Vortex Corporation et al. (Vortex), of a motion to disqualify Jackson & Campbell, P.C. as attorney for C. Jeffers Schmidt, Jr. Trustee in Bankruptcy. After the parties filed memoranda in support of their positions, this Court held a hearing on Vortex’s motion. After consideration of the evidence adduced at trial, the ...
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ORDER This matter came before the Court on the motion of Herbert and Elaine Johnson for relief from the automatic stay of 11 U.S.C. § 362 to allow them to proceed with the cancellation of the contract for deed. William Christianson appeared on behalf of the Johnsons. There was no appearance by either the debtor or his counsel. Based upon the file and arguments of counsel, the Court m...
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*601 DECISION AND ORDER I FACTS The debtor, Nimai Kumar Ghosh, was in default on mortgage installment payments due on his personal residence owned by him and his wife. As a consequence of this default, a valid judgment of foreclosure in the amount of $47,376.90 was obtained on November 15, 1982 by the mortgagee of this property, Financial Federal Savings & Loan Associat...
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MEMORANDUM OPINION AND ORDER This matter is before the Court upon the motion of Amoco Oil Company to require the Debtor to assume or reject an oil jobber contract and the motion of the Debtor to enjoin Amoco Oil Company from terminating the contract without complying with the Petroleum Marketing Practices Act. FACTS Harrell Oil Company, Inc. is a debtor-in-possession (11 U.S.C. § 1101(1)), ...
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MEMORANDUM ON RECONSIDERATION OF TRUSTEE’S MOTION TO INSPECT AND COPY RECORDS At issue is whether the trustee is entitled to inspect and copy certain records of the debtor currently in the custody of the United States. The records in question, seized pursuant to a federal search warrant, were removed from the involuntary debtor’s former residence subsequent to the entry of the order for relief....
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MEMORANDUM The trustee seeks a declaratory judgment of entitlement to the proceeds from the sale of the debtors’ land. The issues are: (1) whether postpetition perfection of the bank’s security interest by payment of state recordation taxes and statutory penalties relates back to perfection of the original deed of trust to protect the bank’s security interest from avoidance by the trustee; and (2)...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a complaint to determine validity of lien and motion to avoid lien by the debtor, Tommy B. Quidley. A trial on the debtor’s complaint was held on December 13, 1983. After taking evidence and listening to argument by both parties, this Court ruled that certain office equipment not the subject of this opinion was not exempt a...
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OPINION This is an appeal from the trial court’s decision that certain payments made by a general contractor directly to the subcontractor-debtor’s materialman constituted voidable transfers under § 547 of the Bankruptcy Code. The trustee cross-appealed the trial court’s decision that certain payments made by a general contractor to the debtor’s laborers and to purchase additional car...
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MEMORANDUM OPINION This matter came on for trial on October 28, 1983, upon a Complaint objecting to discharge pursuant to 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Plaintiff, The National Bank of Pittsburg, appeared by its counsel, Phillip Miller. Debtors/defendants, Dick Albert Butler and Helen Bette Butler, appeared in person and by their attorneys, Murvyl M. Sullinger and Tammy Sull...
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MEMORANDUM OPINION Cross-motions for summary judgment have been filed by the parties to this non- *278 dischargeability proceeding. At issue is whether a new trial is necessary on the question of “willful and malicious injury” as it pertains to the defendant’s attempted discharge in bankruptcy of a $15,000 judgment against him for malicious prosecution. Bullitt Circuit C...
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OPINION The issue in the dispute before us is whether an entity who purchased realty from the trustee, relying on the erroneous figures given him by the mortgagee, can successfully urge the application of the doctrine of equitable estoppel against said mortgagee. The question arose out of negotiations for the private sale of the property when, in endeavoring to calculate the purchase price, the in...
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OPINION The issue in the dispute at bench is whether we should grant the third party defendant’s motion for summary judgment on causes of action (brought by the third party plaintiff) for negligent misrepresentation and intentional interference of contractual relations. For the reasons stated herein we will deny the motion. The facts of this case are as follows:1 J.J. Murtha, Inc. (“the debtor”) ...
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OPINION The issue before us is whether the debt- or-wife can claim, in addition to her own federal “homestead” exemption of $7,500.00, the federal homestead exemption of the debtor-husband, who, together with his wife, had elected the federal exemptions at the time they filed their joint petition under chapter 7 of the Bankruptcy Code (“the Code”); but who had died after said filing and electio...
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MEMORANDUM AND ORDER Pride Fuels, Inc. filed complaint under §§ 523(a)(2)(A), 523(a)(2)(B), and 523(a)(4), seeking to except at least a portion of its debt from debtors’ discharge. The following summary constitutes findings of fact and conclusions of law after nonjury trial. Jimmy Wayne Ogg, during all periods of time relevant to this memorandum, was a dealer and service station operator for Prid...
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MEMORANDUM AND ORDER Wanda Marie Shahan, debtor, filed petition for order for relief under Chapter 7 of Title 11, United States Code on November 1, 1983. Approximately one year earlier on November 6, 1982, she had suffered personal injuries in an automobile collision, incurring expenses for doctors and hospitals, as well as other damages. She assigned to Amarillo Hospital District her cause of ...
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MEMORANDUM AND ORDER The Debtor, Valley Building Supply, Inc. (Valley), filed a voluntary petition under chapter 7 of the Bankruptcy Code (Code) on September 30, 1983. The instant matter comes before the court on the motion of Steven Patrick Christian Manor for Exceptional Boys, Inc. (Manor), for payment of its claim in this case. A hearing was held on March 2, 1983. The records in the ca...
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MEMORANDUM AND ORDER The debtors (the Braleys) filed for relief under chapter 11 of the Bankruptcy Code (Code) on November 19, 1983. The instant matter comes before the court on the Bra-leys’ motion of December 2, 1983, to reject their assignment of February 3, 1983, of certain periodic milk check proceeds to the Farmers Home Administration (FHA). The Braleys also seek a ruling that the a...
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MEMORANDUM OPINION This matter came before the Court upon motions by the Small Business Administration and Chesapeake National Bank for the determination of their secured status. On February 14, 1984 this Court held an evi-dentiary hearing at which counsel for Chesapeake National Bank and counsel for the trustee presented evidence and argument as to the validity of the lien alleged to be ...
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ORDER NOTING CHANGE OF PROCEDURE IN THIS COURT Congress having recently funded the United States Trustee Pilot Program until September 30, 1984, based on An Evaluation of the U.S. Trustee Pilot Program for Bankruptcy Administration, Findings and Recommendations, sponsored by the United States Department of Justice, Executive Office for U.S. Trustees, in which Congress accepted the statement of ABT...
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MEMORANDUM OPINION Plaintiff, Massey Ferguson Credit Corporation, filed objection to discharge pursuant to 11 U.S.C. § 727 of a $1,807.87 obligation remaining on an installment sales contract executed by debtor, Charles A. Goodman, for equipment purchased from Pedigo Tractor and Implement Company, said contract rights thereafter assigned to plaintiff. The parties agreed to submit the issue of disc...
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ORDER This matter came before the Court on the motion of Production Credit Association of Faribault (“PCA”) for relief from the automatic stay of 11 U.S.C. § 362 to allow it to foreclose its security interest in the debtors’ livestock, grain, and equipment. The debtors were represented by William I. Kampf. PCA was represented by James Keating. Now, based upon the file and arguments of counsel...
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This case is before the Court on Federal Land Bank’s Motion and Request for Dismissal of the Debtors’ Chapter 11 Proceeding or, in the Alternative, for Termination or Modification of the Automatic Stay. The facts are not disputed. The Debtors, Robert and Elizabeth Donaldson, are husband and wife. They are engaged in a farming and ranching operation in Butte County, South Dakota. The Debtors def...
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AMENDED OPINION REGARDING ATTORNEY FEES REQUESTED BY MILLER, BOYKO & BELL I INTRODUCTION Coastal Equities, Inc., is a California corporation which had as its principal business the generation of capital for the acquisition and sale of interests in real property. An involuntary petition under Chapter 7 of the Bankruptcy Code (“Code”) was filed against Coastal Equities on April 22...
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MEMORANDUM DECISION In these two adversary proceedings, the debtor seeks avoidance under 11 U.S.C. § 547(b) of seven “transfers” by garnishment. The defendants have answered and the two cases were tried together on March 20. Unlike the former Act, the present Code does not expressly authorize the avoidance of liens which attach during the preference period. However, the omission was ...
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MEMORANDUM DECISION AND ORDER This matter is before the Court upon the motions to lift the § 362(a) stay brought by The Equitable Life Assurance Society of the United States (Equitable Life) and Southern Idaho Production Credit Association (SIPCA), to allow them to foreclose their liens on debtor's property. Under § 362(d)(2)(A), to support a motion to lift the § 362(a) stay in order...
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MEMORANDUM OPINION AND. ORDER This cause coming on to be heard upon the complaint to determine dischargeability of a child support order filed by ELDREN M. TYLER, [Debtor] represented by JOHN R. O’BRIEN, against JOAN TYLER, divorced wife of the Debtor, represented by ELAINE C. STEED ANDREWS; the Court having heard testimony of witnesses and reviewed the evidence and memoranda submitted by the p...
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MEMORANDUM AND ORDER This matter came on for pretrial hearing on November 16, 1983. Plaintiff/trustee, Eric C. Rajala, appeared through the successor trustee, James S. Willis. Mr. Rajala had withdrawn as trustee on November 14, 1983, and Mr. Willis was appointed successor trustee and attorney for the trustee. Defendant, Bowlus School Supply, appeared by its attorney, Frederick R. Smith. The deb...
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ORDER DENYING MOTION TO DISMISS AND GRANTING SUMMARY JUDGMENT FOR PLAINTIFF Finding that the plaintiff is not barred by res judicata and that the lifting of the automatic stay will not impair the debtor’s exemptions, the stay will be lifted. Findings Of Fact 1. The debtor filed a voluntary petition in bankruptcy under Chapter 13 on March 24, 1981. *2622. The Small Business Administration [“S.B.A...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This motion came on for hearing on the motion of Briggs Transportation Co. for Court approval of its rejection of its collec--tive bargaining agreements. Joe A. Walters and James A. Rubenstein appeared on behalf of the debtor. David Leo Uelmen and Scott D. Soldon appeared on behalf of the Teamsters National Freight Industry Committee, affilia...
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MEMORANDUM OPINION In this Chapter 13 case, the Debtors have objected to Claim No. 4, filed as a secured claim by Citizens National Bank of Greater St. Louis, for $186,295.35 “plus accrued interest.” The Proof of Claim, dated August 1, 1983, and filed on August 22, 1983, reflects a principal amount owing of $148,-728.81, and $37,566.53 in interest charged through August 1, 1983. The Debtors obj...
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Memorandum Decision Introduction When the debtor filed his Chapter 11 petition on 21 July 1982 the estate’s principal asset was a parcel of real property located at Lake Tahoe, Nevada, which he held in joint tenancy with Edith and Charles Lyons (mother and son, respectively). This property was subject to a deed of trust securing a $200,000.00 note dated 23 December 1980. This...
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OPINION Joseph Soriano, a judgment creditor of the above debtor, moves to dismiss the Chapter 11 petition filed by Gilbert Broadcasting Corporation (Gilbert), contending that (a) the petition was not filed in good faith, and (b) the “debtor corporation is without any business that can be the subject of reorganization or rehabilitation, and without any good will that is preservable.” ...
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*589 FINDING AS TO COLLECTIVE BARGAINING AGREEMENT The debtor in possession, DeLuca Distributing Company (debtor), moves this court for a determination of whether it is bound by a collective bargaining agreement with Local 348 of the Teamsters Union (Union). The debtor argues that the collective bargaining agreement cannot be enforced against it. The court disagrees and finds tha...
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MEMORANDUM OPINION AND ORDER This matter came on for trial on Plaintiffs’ complaint to deny the Debtors a discharge pursuant to § 727 of the Bankruptcy Code. At the conclusion of Plaintiffs’ case, Defendants moved for involuntary dismissal pursuant to Rule 41(b) Fed.R. Civ.P. and the Court rendered judgment for Defendants. The following opinion constitutes findings of fact and conclusions...
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MEMORANDUM AND ORDER This matter is before the Court upon the motions of defendants Paul A. Burson and Quentin M. Derryberry, II to dismiss the complaint of The Toledo Trust Company for a declaratory judgment. Under the circumstances of this case, the Court finds that the motions are not well taken and should be denied. FACTUAL BACKGROUND The well-pled allegations in plaintiff’s...
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MEMORANDUM This matter is before the court on the bankrupt’s objection to a portion of the application by Stephen M. Trautman, attorney for the trustee, for attorney’s fees and costs. The parties to this litigation approached the court in December of 1983, and requested an expedited hearing in order that the estate could avoid tax liability for 1984. In accordance with this court’s duty u...
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MEMORANDUM OPINION INTRODUCTION This case requires the court to decide the value of a car for purposes of 11 U.S.C. § 1325(a)(5)(B)(ii). 1 FACTS AND PROCEDURAL BACKGROUND On August 2, 1982, debtors bought a new 1982 Datsun 200SX from Washburn Motor Company for a cash price of $9,464.00. Zions First National Bank financed the purchase. Zions and Washburn were operati...
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MEMORANDUM OPINION This matter came before the Court upon the filing of an objection to confirmation by Heritage Savings and Loan Association of the debtors’ Chapter 13 plan. After notice to creditors and other parties in interest, a hearing on confirmation and on the objection by Heritage Savings and Loan was held. The matter was argued by counsel and taken under advisement by this Court...
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OPINION ON COMPLAINT OBJECTING TO DISCHARGE On July 29, 1983, the trustee filed a complaint objecting to the discharge of this debtor under Title 11, United States Code, Section 727. Specifically, he objects on the grounds that the debtor with intent to hinder, delay or defraud a creditor or an officer of the estate charged with custody of property did transfer, remove, destroy, mutilate or con...
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THIS CAUSE came on to be heard upon an adversary proceeding pursuant to Part VII of the Interim Bankruptcy Rules wherein the Trustee sought to recover money or property and to determine the validity, priority or extent of a lien or other interest in property claimed by the Defendant, Associates Commercial Corporation (hereinafter “Associates”) and sought an accounting. Associates answered, raised ...
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' DECISION ON MOTIONS TO DISMISS TRUSTEE’S COMPLAINT AND FOR SUMMARY JUDGMENT. The trustee in bankruptcy of Candy Lane Corp. (“Candy Lane”), seeks to set aside an interest in a condemnation award asserted by Shirley Leff (“Leff”) by exercising the strong-arm power bestowed upon the trustee under section 70(c) of the former Bankruptcy Act of 1898, ch. 541, 30 Stat. 544 (codified as amended...
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DECISION & ORDER First Energy Leasing Corporation (“First Energy”), the debtor, has moved to dismiss the involuntary petition filed by three alleged creditors, Energy Minder Corp. (“Energy Minder”), National Seminars Inc., d/b/a National Sattelite Seminars Network (“National Seminars”) and En-Con Enterprises, Inc. (“En-Con”) (referred to collectively as “petitioning creditors”) on the gro...
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OPINION The issue in the dispute before us is whether we should grant the trustee’s motion for summary judgment based on its motion for rejection of an unexpired lease. We will deny the trustee’s motion. The undisputed facts of this case are as follows: The debtor and Chase Commercial Corp. (“Chase”) contracted for the use of Chase’s computer in 1980. The document evidencing the agre...
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MEMORANDUM The issue is whether the debtor may amend his exemption schedule more than 15 days after his meeting of creditors, but before the case is closed. The trustee argues on the authority of In re Brewer, 17 B.R. 186 (Bkrtcy.M.D.Tenn.) aff'd, 22 B.R. 983 (D.C.M.D.Tenn.1982) that the debtor’s amended exemption schedule, filed more than 15 days after the meeting of creditors, is untimely...
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MEMORANDUM DECISION Plaintiff seeks the imposition of a constructive trust upon bars of silver in the debtor’s estate to the extent of 7,050 ounces of silver, and an order requiring the trustee to deliver the silver bars or pay plaintiff the value of the bars. The trustee has answered. The matter was tried on March 20. Plaintiff and the debtor did business with one another on the fol...
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OPINION Debtor-corporation, The Greater Atlanta Apartment Hunter’s Guide, Inc. (“Greater *30 .Atlanta”), which had been placed in receivership by Fulton Superior Court on February 1, 1983, filed a voluntary Chapter 7 petition on October 7, 1983. The Board of Directors of Greater Atlanta had passed a corporate resolution on September 30, 1983, authorizing the bankruptcy filing. Marvin Nodvin (...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING MOTION TO MODIFY STAY A Motion to Modify Stay was filed by Clinton Lee, Robert Converse and Libations, Inc., (hereinafter jointly “Movants”) on January 19, 1984, pursuant to 11 U.S.C. *250§ 362(d), on the grounds that the debtors Mary Anne Bruno and Bruno Corporation, (hereinafter jointly “Debtors”) had no equity in the business assets of the ...
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ORDER This matter comes before the court on the Complaint For Determination That The Automatic Stay Does Not Apply To Termination of Contracts, Or, In The Alternative, For Relief From The Automatic Stay and on the Motion To Require Rejection of Ex-ecutory Contract, Or, To Set Time Within Which Debtor Must Assume or Reject Ex-ecutory Contract filed by plaintiff, Electronic Realty Associates, Inc...
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Findings of Fact, Conclusions of Law, and ORDERS Denying and Dismissing Complaint for Injunctive and Other Relief Experiencing financial pressure from its major creditor, The Rath Packing Company (Rath) in February 1983 successfully negotiated a wage deferral with its Local Union (Local). During these negotiations, Rath allegedly did not invite the participation of the United Food and...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter came on for hearing on the motion of the debtor to void a mortgage foreclosure sale. Gary J. LaFleur appeared on behalf of the debtor. James M. Pfau and Hendrik De Jong appeared on behalf of Norwest Bank Minneapolis. Based on the filés and records, the briefs, and the argument of counsel, the Court makes the following: FINDIN...
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The trustee (“Trustee”) in bankruptcy of Frigitemp Corp. (“Frigitemp”) has applied for an order approving access to certain rule 2051 examination transcripts and related exhibits. These transcripts were made at examinations taken pursuant to a January 23, 1980 order issued by Bankruptcy Judge Lewittes. The Trustee’s application specifically requests access to at least the transcripts of examinatio...
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OPINION 1 The issue before the Court is whether Philadelphia Gas Works (“PGW”) can demand payment from the debtor for stolen gas before restoring her gas service even though she was living away from home at the time the gas theft occurred. For the reasons stated herein, we find there is insufficient evidence to connect the debtor with the tampering and gas theft which took place o...
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OPINION The case before us was badly presented. By agreement, no testimony was offered. Instead, counsel made statements of purported facts, interspersed with inadmissible bits of hearsay. No one objected to anything. The issue is whether a creditor may apply certain postpetition monies received from the debtor against the debtor’s pre-petition account with said creditor. Because any such...
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OPINION Impulsora Del Territoria Sur, S.A., dba Hotel Solmar (plaintiff) appeals from a judgment of the bankruptcy court which held that the debtors’ liability to the plaintiff is dischargeable. We affirm. FACTS Plaintiff operates a hotel in Cabo San Lucas, Baja, Mexico. In April 1973, plaintiff entered into an agreement with an entity known as C.V.R. Investments (“CVR”). CVR was a partnership co...
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OPINION Debtors Frank Louis and Louise M. Laczko appeal from an order of the bankruptcy court granting summary judgment in favor of creditor Gentran, Inc. This proceeding concerns the claim of a creditor, added to the debtors’ schedules after the time for filing claims had expired. The question presented is whether that debt can be discharged in a no-asset case where the omission of the credi...
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*680OPINION This is an appeal from an order of the bankruptcy court authorizing the debtor in possession to reject its contract with appellant. We affirm. FACTS Appellant is an attorney at law. Aesthetic Specialties, Inc. (ASI) is in the business of manufacturing and selling alcoholic beverages in specialized decorative containers. In September, 1979 ASI retained appellant for the purpose of pursu...
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MEMORANDUM OPINION This matter is before the Court on the complaint of Richard A. Devoe seeking to have a debt declared nondischargeable pursuant to 11 U.S.C. Section 523(a). Prior to the date set for trial, the plaintiff filed a motion for summary judgment on the basis of the state court judgment. Trial in this cause was held on the 12th day of October, 1983. From the arguments pres...
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MEMORANDUM OPINION This matter comes before the Court on the Motion for Declaratory Judgment of the Debtors, Thomas E. Roth and Sharon F. Roth. The oral arguments and written briefs of counsel reflect a high level of professional creativity and diligence to their clients. The Debtors have filed a motion seeking a declaratory judgment by this Court that the reaffirmation agreement the...
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*849 MEMORANDUM OPINION AND ORDER This controversy involves an action seeking declaratory relief. Specifically, Island Club Marina, Ltd. (“debtor”), requests a finding by this court upholding the validity of certain building permits that were issued to it. The defendant, Lee County, contends that the original building permits that were issued to the debtor are no longer valid. Ce...
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MEMORANDUM DECISION The trustee seeks a determination that the security interest of defendant Amoske-ag Savings Bank in the debtor’s mobile home is unperfected. Both Amoskeag and the debtor argue that although the financing statement is not in absolute compliance with the statute, the document is sufficient because it adequately and accurately fulfills its notice function. The court concludes that...
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MEMORANDUM OF DECISION On July 22, 1983, the trustee filed an amended application to determine tax liability, in part objecting to claims of the Internal Revenue Service for Highway Use Taxes. The facts are undisputed. The tax in question is for highway use for the tax year commencing July 1, 1981 and ending June 30, 1982. 1 See 26 U.S.C.A. §§ 4481 et seq. (19...
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MEMORANDUM OF DECISION On May 7, 1982, the First National Bank of Portsmouth (“Bank”) filed a complaint for relief from stay, seeking authority to pursue its alleged security interest in an automobile. The trustee’s answer alleges that the Bank’s security interest is a preference subject to avoidance pursuant to 11 U.S.C. § 547. 1 By consent of all parties and pursuant to this Court’s order, ...
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MEMORANDUM AND ORDER SUSTAINING OBJECTION TO CLAIM OF EXEMPTIONS Finding that the debtor has joint creditors and that the debtor’s property held as a tenant by the entireties may be reached by those creditors under Maryland Law, the Trustee’s objection to the debtor’s claim of exemptions will be sustained. Findings Of Fact 1. The debtor has claimed as exempt his interests in a house, hous...
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DECISION RE REJECTION OF LABOR CONTRACT The captioned case has been substantively consolidated with a number of other cases, one of which is a Chapter 11 case which was filed for Peterbilt of Dayton, Inc. (hereafter Peterbilt). The several cases which are consolidated all were filed on July 9, 1982. On May 27, 1983 Peterbilt filed Application for Approval of Debtor in Possession’s Rejecti...
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MEMORANDUM DECISION AND ORDER This matter concerns an objection to the use of cash collateral and application for adequate protection. A brief discussion of the procedural history of this matter is as follows. The debtor, Belco, Inc., (hereinafter “Bel-co”) filed its initial voluntary petition under Chapter 11 of Title 11, U.S.C. on January 7, 1983. Pursuant to certain negotiations t...
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OPINION This case reaches the Court on a complaint for an injunction filed by the debtor against Philadelphia Gas Works (“PGW”). After filing for relief under the Bankruptcy Code, the debtor sought restoration of gas service to her home and offered the utility company a security deposit pursuant to § 366 of the Code. PGW refused to accept the amount offered or restore service because ther...
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MEMORANDUM The debtors objected to claims 1 and 2 filed by Agristor Credit Corporation as secured claims. The debtors contend that the claims are unsecured because Agristor failed to perfect its security interests by filing financing statements in the correct place. 11 U.S.C. § 544(a); Tenn.Code Ann. § 47-9-301(l)(b) & (3). Agristor filed financing statements in McMinn County, Tennes...
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OPINION Debtor appeals from the denial by the bankruptcy court of an injunction against a creditor who, after bankruptcy, sued and took a judgment in state court on a discharged pre-bankruptcy debt. The general issue in this appeal is whether appellant’s assertion of a bankruptcy discharge as a defense in a state court action seeking recovery on a pre-bankruptcy debt and his subsequent filing o...
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MEMORANDUM OPINION This matter is before the court on a pending Motion to Dismiss filed by Prudential Insurance Company of America (“Prudential”). Prudential seeks to dismiss a Chapter 11 petition filed by Colony Square Company (“CSC”) in the bankruptcy court of Pennsylvania. FINDINGS OF FACT Prior to 1975, Prudential loaned large sums of money to CSC for the construction of a c...
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STATEMENT OF THE CASE On July 21, 1981, Alexander Pollock Dempster, III, d/b/a A.P. Dempster, III, Sandy Dempster, d/b/a Dempster’s Appliance Sales & Service, Dempster’s Appliance Repair, Debtor, filed his voluntary petition under Chapter 7 of the United States Bankruptcy Code. Mr. J. Coleman Tidwell was appointed as trustee of Debt- or’s bankruptcy estate, and on January 12, 1983, Mr. Tid...
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DECISION AND ORDER Manufacturers Hanover Trust Company (“Manufacturers”), an unsecured creditor holding approximately 80% of the scheduled debt of William F. Kern II, the debtor, objects to the confirmation of his Chapter 13 plan on the ground that it violates the good faith standard of § 1325(a)(3) of the Bankruptcy Code (“Code”), 11 U.S.C. § 1325(a)(3) (1978). I The debtor fil...
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OPINION Louis B. Rosenberg, Esq. has moved this court for reconsideration of the fee allowed him by the Court as attorney for the debtor and debtor-in-possession in this Chapter 11 proceeding. He was allowed $15,000.00 for the- reasons stated in the record at the hearing on October 28, 1983. He had requested $130,000.00. The Debtor, Daylight Transport, Incorporated (“Daylight”) is en...
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OPINION Although inappropriately styled as a motion for a Temporary Restraining Order, this matter was heard on February 2, 1984. The debtor had filed a voluntary Chapter 7 petition on December 6, 1983. On February 1, 1984, almost two months thereafter and two days before foreclosure proceedings were scheduled on Alabama real property which had belonged to the debtor from 1980 to October 10, 19...
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MEMORANDUM OPINION Introduction: The Biniecki Brothers formed a partnership to operate a grain elevator in Livingston County. The partnership failed and its Chapter 11 case filed on August 19, 1982, was converted to Chapter 7. The trustee has filed over fifty preference complaints against farmers who had traded with the partnership. This is the first of these adversary proceedings to be tri...
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MEMORANDUM OPINION Plaintiff, in this adversary proceeding, seeks (1) a determination that any obliga *2 tion that he owes Defendants arising from the parties’ execution of a promissory note dated November 15, 1971, was discharged by the general discharge granted him by this Court on January 16, 1981, and (2) an order holding Defendants in contempt of court for their alleged violations of the...
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MEMORANDUM OPINION Plaintiffs-Debtors (Debtors) seek to avoid Defendant’s judgment lien on a log cabin and ten acres of real property in Reynolds County, Missouri now owned and occupied by Debtors. The judgment was entered on August 17, 1981, by the Circuit Court of Reynolds County, Missouri, and is in the original amount of $26,349.30. Debtors claimed this real estate as exempt on their Sche...
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DECISION AND ORDER ON MOTION TO DISMISS On June 22, 1983, George Blake filed a petition for relief under Chapter 11 of the Bankruptcy Code (the Code). Chemical Bank, the principal creditor, then filed a motion on October 24, 1983, to dismiss the Chapter 11 petition under section 1112(b) of the Code. This motion was joined in by Chase Manhattan Bank on November 8, 1983. Section 1112(b) grants th...
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MEMORANDUM Shirley L. Slocum, a creditor, seeks denial of discharge to the debtor, Bonnie Maret-ta Wheeler, alleging as grounds therefor the debtor’s failure to explain satisfactorily “any loss of assets or deficiency of assets to meet the debtor’s liabilities.” 11 U.S. C.A. § 727(a)(5). I The plaintiff and the debtor were associated in two business ventures in Greene-ville, Ten...
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*720 ORDER GRANTING APPLICATION OF CREDITORS TO AMEND INVOLUNTARY PETITION UNDER CHAPTER 7 (WEST KNOXVILLE INVESTMENT COMPANY, INC.) ORDER NO. 72 This matter came on for hearing on February 24, 1984, upon the Application of Creditors to Amend Involuntary Petition under Chapter 7 (West Knoxville Investment Company, Inc.); upon the Objection and Response to Application of Credi...
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MEMORANDUM OF OPINION The matters before the Court involve a series of Adversary Proceedings filed in 1984 between Thomas J. Griffith (as Trustee-in-Bankruptcy for Hipp, Inc.), Oles Grain Company, Inc., the Trustee-in-Bankruptcy for Oles Grain Company, Inc. and Lawrence Systems of Mass., Inc. (Lawrence). In conjunction with these matters, the Court also heard a Motion to be Relieved ...
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OPINION INTRODUCTION The Carnation Company (Carnation) appeals from a decision of the bankruptcy *660 court declaring Carnation’s contractual security interest in a note secured by real and personal property assets (mixed collateral) void as violative of California Code of Civil Procedure (C.C.P.) § 726. We affirm. ISSUES 1. The correctness of the applicat...
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MEMORANDUM OPINION While this action was initiated as a complaint for injunctive relief, all injunction related issues are now moot, and the issue now before the Court is whether the plaintiff, a Chapter 11 debtor, has established that the events set out in his complaint have created a transfer avoidable as a preference according to the terms of 11 U.S.C. § 547(b) as to the defendants Freddie T...
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MEMORANDUM AND ORDER This matter came before the court on the trustee’s objection to claims 9 and 10 of Artlip & Sons, Inc. Having considered the pleadings and stipulation of facts filed by the parties, the court determines that the creditor Artlip & Sons, Inc., shall have a general unsecured claim in the amount of $13,941.95 plus statutory prepetition interest of $1,882.16 totalling $15,...
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MEMORANDUM OPINION ISSUE: ARE CLAIMS FOR THE UNUSED PORTIONS OF PRE-PAID MEMBERSHIP FEES TO A HEALTH SPA NONDISCHARGEABLE IN THE PRINCIPAL’S CHAPTER 7 CASE? I. Introduction and Determination of Preliminary Procedural Issues: A. Factual Bankground: The debtor, Patricia Ann Sclater, is the President, chief operating officer and sole shareholder of Slenderalla ...
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OPINION Appeal is taken herein from an order of the trial court granting the defendants’ motion for a judgment on the pleadings. We affirm. I. BACKGROUND Prior to the commencement of the above-entitled case, the appellants, OWEN W. MOORE and LETITIA E. MOORE, were the certified representatives of a class in a California Superior Court action brought against the appellees, SIGMUN...
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ORDER Before the Court are three Adversary Proceedings consolidated for trial. The hearing began on October 14, 1983. After adjournment on that date the balance of the hearing was conducted in Little Rock on November 18, 1983. Hon. James G. Mixon, Trustee, was represented by Hon. F.H. Martin. Hon. Marshall Dale Evans represented Kenneth Eads. Hon. Truman H. Smith and Hon. Raymond C. Smith...
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MEMORANDUM OPINION ON COMPLAINT TO AVOID PREFERENTIAL TRANSFERS STATEMENT OF THE CASE On September 3, 1981, Georgia Steel, Inc., d/b/a Eastern Crane & Equipment, d/b/a Plate Services, d/b/a Georgia Structural, and d/b/a Quickwork, Debtor, filed with this Court its petition under Chapter 11 of the United States Bankruptcy Code. On September 14, 1982, Atlanta Gas Light Company filed an...
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The matter before the Court is an Application for Order to Show Cause in re Contempt and Complaint for Damages filed by Ronald D. and E. Sue Olson (Debtors) and against McFarland Clinic P.C. (Defendant). The Court, being fully advised and pursuant to F.R.B.P. 7052, now makes the following Findings of Fact, Conclusions of Law and Orders. The facts underlying the Application are not in dispu...
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MEMORANDUM The Plaintiffs Complaint seeks a determination of nondischargeability pursuant to 11 U.S.C. Section 523(a)(6) of, a judgment Plaintiff Morin obtained against the debtor Longo in the District Court Department, Fourth Eastern Middlesex Division in the amount of Eleven Thousand Eight Hundred and Ninety dollars ($11,890). The state court judgment, based on violations of Mass.Gen.Laws Cha...
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MEMORANDUM AND ORDER Robert Rezac, Plaintiff in the above-entitled adversary proceeding, filed a Complaint with the Court on July 6, 1983, seek *232 ing a determination of non-dischargeability. The Plaintiff obtained a state court judgment against the Debtors, granting an award of damages in the amount of $8,206.23 for work-related injuries. Rezac requests that the Court determine that the ju...
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MEMORANDUM OPINION AND ORDER Debtor filed for relief in October of 1981. At that time and to the present it owned certain over-the-road tractors and trailers in which CIT Corporation, hereinafter CIT, and CIT Financial Services, hereinafter Financial, have security interests. Prior to July 1983 no request for adequate protection was made by either creditor and debtor made no payments alth...
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MEMORANDUM & ORDER Leonard Treister (“Treister”) moves to dismiss a complaint filed by Oberon Investments, N.V. (“Oberon”), a Netherlands Antilles Corporation. The Oberon complaint seeks an order declaring the debt owed to it by the debtor Treister to be nondis-chargeable. Treister’s motion to dismiss alleges that the complaint was filed after the relevant bar date and therefore cannot be...
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OPINION The issue in the case sub judice is whether monies received by the Internal Revenue Service (“the IRS”) from the debtor’s employer within the ninety (90) day period preceding the filing of the debtor’s petition under chapter 7 of the Bankruptcy Code (“the Code”), pursuant to a levy against the debtor’s wages made by the IRS outside the ninety day period, constitutes a voidable pre...
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*506 MEMORANDUM I The issue before the court is the dis-chargeability of a debt, owing to the plaintiff, allegedly arising from the defendant’s breach of a sublease agreement. Plaintiff asserts that the sublease was entered into only after the defendant submitted a financial statement respecting his financial condition; that it relied upon this financial statement; and that ...
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OPINION ON COMPLAINT TO DETERMINE RIGHTS IN ONE 1983 BEIGE AND GOLD LINCOLN AUTOMOBILE ID NO. 1MRBP97F6DY603560 On June 9, 1983, this court entered an order in this adversary proceeding in favor of the plaintiff and against the Dothan Lincoln-Mercury Company, Inc., a corporation, defendant, authorizing the plaintiff to proceed not only against inventory of this debtor in which the plaintiff had a...
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ORDER DENYING MOTION FOR PROTECTIVE ORDER Richard A. Davis has filed an objection to debtor’s counsel’s application for compensation, alleging, inter alia, that debtor’s counsel “held and represented interests adverse to the estate, was not a disinterested party, and had conflicts of interest among the clients it purported to represent.” Davis alleges that conflicts of interest...
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FINDING AS TO REJECTION OF CONTRACT This matter is before the court on the motion of the debtor, C. & W. Mining Co., Inc. (C. & W.), to reject, pursuant to 11 U.S.C. section 365(a), an executory contract with the United Mine Workers of America Local Union 1981 (Union). This executory contract is a collective bargaining agreement subject to the provisions of the National Labor Relations Ac...
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MEMORANDUM OF DECISION AND ORDER This action was brought by Patricia Ruth Williams, plaintiff, who seeks to have certain debts (agreed to and imposed upon the defendant-debtor, Gene E. Williams, pursuant to their Decree of Divorce,) declared non-dischargeable under 11 U.S.C. § 523(a)(5)(B). Defendant-debtor answers by asserting that the indebtedness is dis-chargeable and further that the ...
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OPINION The question before us is whether the property of the estate of an individual debt- or includes a piece of real estate titled in the name of the debtor as executrix of a decedent’s estate. We hold that it does not. *894 The undisputed facts are as follows: 1 Brenda Cherry (“the debtor”) filed a petition under chapter 13, listing as one of her assets, the premises located at 5035 G...
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•MEMORANDUM AND ORDER ON APPLICATION TO REOPEN CLOSED CASE TO AVOID JUDICIAL LIEN The within case under Chapter 7 of the Bankruptcy Act was filed June 11, 1982 and closed January 18, 1983. The debtor is the owner of 2909 Bird Drive, Erie, Pennsylvania, 16510, subject to the liens of a mortgage of Lomas and Nettleton having a current balance of $32,500 and a judgment of the Union Bank and ...
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ORDER Background On 19 April 1983 the then debtor in possession, Oiltech, Inc. (debtor), filed the above-styled 11 U.S.C. § 542 turnover complaint against its former corporate counsel, Nelson & Harding (N & H) and nominal defendant, Keene, Munsinger & Stuckey (KM & S). The property the debtor seeks to recover includes a $30,000.00 deposit held by KM & S in an interest-bearing acc...
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On October 6, 1983, Dee Wood Industries, Inc. (Dee) filed its complaint seeking to marshal the assets of the debtors, Jack Dillon Construction Co., Inc., John Dillon and Donna Dillon, his wife (the Dillons). PROCEDURAL AND FACTUAL HISTORY On August 18, 1982, the Dillons and the Jack Dillon Construction Co. filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. Dee is a secur...
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MEMORANDUM ON ALLOWANCES After pending for over four years, during which the assets of these debtors have, for the most part, been reduced to cash, these cases are drawing to a close. A liquidating plan has been approved by this court and applications for allowance for fees and expenses have been filed by the attorneys for the debtors, the attorneys for the petitioning creditors, the atto...
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OPINION The issue in the case at bench is whether we can direct the defendant to renew certain insurance policies' at their respective expirations, which policies the defendant had issued to the debtor and which policies are set to expire by their own terms in the immediate future. Because nothing in the Bankruptcy Code (“the Code”) enlarges the rights of a debtor under a contract nor prevents ...
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OPINION The basis of the dispute at bench is whether a seller’s right of reclamation un *491 der § 2702 1 of the Uniform Commercial Code (“the UCC”) of Pennsylvania is precluded by the existence of a creditor holding a security interest in the debtor’s after-acquired property. For the reasons stated herein we find that the seller may reclaim the goods. The fac...
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MEMORANDUM At issue is whether an automobile is property of the estate, 11 U.S.C.A. § 541 (1979), or may be brought into the bankruptcy estate pursuant to the trustee’s powers of avoidance, 11 U.S.C.A. §§ 544, 547 (1979). The automobile was delivered into the possession of debtor’s wife at the time of its purchase, but the debtor retained a certificate of title designating him as the reco...
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MEMORANDUM The question before the court involves the ownership of a “refund” in the sum of $4,182.25 paid into the registry of this court by John Deere Company. The two contestants claiming the funds are Leon Steinberg, trustee of the estate of Suburban Lawn and Tractor,1 and East Tennes*338see Farm Equipment, Inc. The trustee contends that the funds are property of the debtor’s estate, 11 U.S.C...
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MEMORANDUM AND ORDER I. BACKGROUND This matter is before the court on the complaint of the debtor, seeking a determination that the defendant is in civil contempt for violating the automatic stay under Bankruptcy Code § 362(a) and this Court’s July 12, 1983 order of discharge *475 pursuant to Bankruptcy Code § 524(a). The plaintiff further claims that she is entitle...
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MEMORANDUM AND ORDER This matter came before the Court on the motion of George N. Hayeck, Ernest S. Hayeck, Hayeck & Hayeck, Haven Industries, Inc., and Hayeck Building and Realty, Inc. (Hayecks) for leave to file a late proof of claim. The court having carefully considered the pleadings, memoranda and affidavits filed herein, does hereby deny Hayecks’ motion for leave to file a late proo...
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MEMORANDUM The plaintiff debtor’s complaint seeks a determination that the debtor’s obligation to pay his former wife’s attorney’s fees of $1500 is dischargeable in bankruptcy and is not in the nature of alimony or support so as to be nondischargeable under 11 U.S.C. Section 523(a)(5). 1 The creditor’s Answer asserts that the liability is in the nature of alimony. The parties submitted an Agr...
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MEMORANDUM OPINION This matter came before the Court on plaintiff’s motion for summary judgment, pursuant to Federal Rules of Civil Procedure 56, Bankruptcy Rule 756, and Local Rule 31, as amended. The plaintiff, First National Bank in Albuquerque (FNBIA), seeks summary judgment on its Complaint to Determine Dischargeability of Debt. The debt is on a promissory note to FNBIA signed by the defenda...
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MEMORANDUM OPINION This matter is before the Court upon the debtor’s application, pursuant to Section 363(b) of the Bankruptcy Code for approval of a proposed lease of substantially all of the debtor’s property. *301 This chapter 11 proceeding was filed on November 18, 1983. Thereafter, on December 13, 1983, the debtor filed an application for approval of a proposed lease between the debtor...
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MEMORANDUM & ORDER Charles G. Rodman, trustee of the W.T. Grant Co. estate (“Trustee”) objects to the allowance of the proof of claim filed by the Chase Manhattan Bank, N.A. (“Chase”), claim number 600015, asserting that the claim is untimely and thus barred under Bankruptcy Act of 1898 (“Act”) section 57(n) and former Bankruptcy Rule 302(e). Chase responds that it had filed an informal c...
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MEMORANDUM & ORDER Two unsecured creditors, European American Bank (“EAB”) and the law firm of Moore, Berson, Lifflander & Mewhinney (“MBLM”) have moved to disallow a portion of the unsecured claim of Chemical Bank (“Chemical”) and to revoke the order confirming the reorganization plan of David Bendel Hertz and Barbara Valentine Hertz (“Debtors”). After a hearing, and upon review of ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The above captioned adversary proceeding comes before the Court pursuant to a complaint filed by the. United States of America (hereinafter, the Plaintiff) requesting the Court to determine a debt owed to the Plaintiff by Michael D. and Laury Lindsley (hereinafter, the Debtors) nondis-chargeable pursuant to § 523(a)(6) of...
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ORDER On August 26, 1983, Donna Hillius filed a Complaint to determine whether the debt Paul Hillius owed her was non-dischargea-ble under section 523(a)(5) of the Bankruptcy Code. The Debtor, Paul Hillius, filed his Answer with the Court on September 29, 1983. A Stipulation of Facts was submitted to the Court on January 30, 1984, and both parties to this adversary have supplied to the Court th...
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MEMORANDUM AND ORDER This Order is issued jointly addressing the above-captioned cases, both of which are identified by the same issue. In both cases, the Debtors (Daniel M. Garnas in Adversary No. 84-7019 and Donald M. Garnas in Adversary No. 84-7020) filed a Complaint on February 16, 1984, seeking injunctive relief preventing the Defendant, American Family Mutual Insurance Company (American F...
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OPINION The issue before us is whether we should grant the trustee’s complaint against the defendant to collect accounts receivable for goods delivered. Assuming, arguendo, that the defendant accepted the goods in question, we find that the defendant effectively revoked its acceptance of the goods in question based on their nonconformity with the type of goods ordered by the defendant. Accordingl...
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DECISION AND ORDER DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT Submitted, ostensibly, on an “Agreed Statement of Facts”, on the trustee’s motion for summary judgment. On July 12, 1982, Charles H. Nolan, Inc., entered into an oral agreement with Cable Rhode Island Sports Production, Inc., d/b/a CRISP, to provide CRISP with certain electronic video equipment, with “rent” to be paid on a monthly ba...
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MEMORANDUM OPINION ON APPLICATION^) TO EXTEND TIME TO OBJECT TO DEBTOR’S DISCHARGE The Court fixed February 6, 1984 as the last day for the filing of objections to discharge of Jane Benedum Floyd (“debtor”). On February 6, 1984, Lou Lattimore, Inc. (“Lattimore”) filed an application for extension to file a complaint objecting to the discharge of the debtor. Lattimore attempted simultaneously to...
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OPINION The debtor, Wauka, Inc., has sought direction from this court regarding the conveyance of certain real property. The property is claimed by two individuals, Donald Sosebee (“Sosebee”), the highest bidder at this court’s allowed auction of this property in September of 1983 and Counte Cooley (“Cooley”) who received a right of first refusal on the property pursuant to a sales contra...
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Homeway Rentals, a creditor in this Chapter 13 proceeding, sought relief from the automatic stay imposed by § 362 of the Bankruptcy Code. The following facts are established. FINDINGS OF FACT Homeway Rentals entered into a contract with this Debtor and his wife on June 23,1983, which placed a nine foot freezer in the Debtor’s home for his use. The contract called for payments of $10.00 per we...
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FINDINGS OF FACT On May 9, 1983, Joseph A. Kunstler executed a promissory note payable to the order of American Bank and Trust Company in the Amount of $9,234.72, payable at the rate of $192.39 per month, beginning on June 10, 1983, with a total of 48 monthly payments. To secure that note, Joseph Kunstler gave a chattel mortgage on a 1983 Dodge Pickup Truck. The note provided th...
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OPINION AND ORDER UPON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT I. FACTS This case comes before the court on a motion for Summary Judgment. The issue is whether a Debtor/Contractor’s payment to a Creditor/Subcontractor can be a preferential transfer when, on account of that payment, the Creditor/Subcontractor lost its Private Works Act lien (e.g. mechanic’s lien) against the Owner. The ...
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MEMORANDUM DECISION Background * In April of 1980, plaintiffs Don and Zoe Bramham (debtors) were the owners of a residence and an adjacent undeveloped lot located at Lake Tahoe, Nevada. At that time, the debtors obtained a loan with a principal amount of some $47,000 from defendant Nevada First Thrift (NFT), 1 which was secured by a deed of trust on the residenc...
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DECISION This matter is before the court for confirmation of the debtor’s proposed Chapter 13 plan. At the hearing on confirmation the trustee objected to debtor’s proposed plan on the grounds that it would be funded with certain payments that do not constitute “regular income” within the meaning of § 109(e) and by reference § 101(24) of the Bankruptcy Reform Act of 1978 (“Code”). Decision was ...
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DECISION AND ORDER Presently before the Court is the Complaint in Reclamation of Plaintiff, The Ohio Farmers Grain and Supply Association, (the Seller), filed on December 13, 1983, pursuant to 11 U.S.C. § 546(c) and O.R.C. § 1302.76 (U.C.C. § 2-702). On January 9, 1984, BancOhio National Bank (the Bank) intervened, alleging that it has a security position superior to Plaintiff’s interest. The B...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiffs, pursuant to Section 362(d) of the Bankruptcy Code, 11 U.S.C. § 362(d), seek relief from the automatic stay so that they may proceed with a state law action to obtain possession of a mobile home which the Chapter 13 debtors-defendants agreed to purchase from the plaintiffs under a long-term agreement of sale. For the reasons herein...
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OPINION AND ORDER FOR SUMMARY JUDGMENT Jermoo’s, Inc. operates three retail gasoline stations in Wisconsin under franchise-dealership contracts with Amoco Oil Company, and is also party to a wholesale “job-bership” contract with Amoco. A provision of each of the dealership contracts provides that Amoco, the franchisor, could terminate Jermoo’s, Inc. as franchisee if Jermoo’s failed to cur...
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ORDER The Official Creditors’ Committee of Specialty Products, Inc. (hereinafter referred to *882as the “Committee”), John Glucklin, et al., commenced the above-referenced adversary proceeding on June 6, 1983. Answers were timely filed by each of the above-named defendants: Specialty Products, Inc. (“Specialty Products”), the debtor herein; Lancaster Colony Corporation (“Lancaster Colony”); and W...
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ORDER On October 30, 1981, the Hartford Accident and Indemnity Company (“Hartford”) commenced the above-referenced adversary proceeding to determine the dischargeability of a debt. Hartford prays that its claim in the amount of $45,000.00 in this bankruptcy case will be determined to be nondis-chargeable. Hartford’s claim is based on a civil judgment against the debtor, John David Rose, J...
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MEMORANDUM OPINION ON JURISDICTION OF THE COURT OVER PROOF OF AND OBJECTION TO CLAIM STATEMENT OF THE CASE On February 8, 1980, Huckabee Auto Company and Huckabee Properties, Inc., Debtors, filed their petitions under Chapter 11 of the United States Bankruptcy Code. These cases were consolidated by the Court on April 21, 1981. On January 28, 1982, Debtors’ Chapter 11 plan was confirmed by the Cou...
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MEMORANDUM DECISION This matter is presently before the Court upon cross motions for summary judgment by the plaintiff, trustee of the chapter 7 bankruptcy estate of defendants Vincent and Cheryl Dias, and by the debtors. The key issue presented relates to a trust established by the grandparents of Cheryl Dias and its status following bankruptcy. The operative facts are simply stated. ...
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MEMORANDUM OPINION This matter comes before the Court on motion of Equitable Life Assurance Society of the United States to lift the stay on the final remaining parcel of land and the improvements thereon now comprising the estate of the debtors. A hearing was held on February 15, 1984, at which time the mov-ant appeared by counsel and presented documentary evidence and testimony concerning the...
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MEMORANDUM OPINION This adversary proceeding was initiated-by the trustee in bankruptcy to recover proceeds from the sale of debtors’ 1981 tobacco crops. On February 9, 1983, the trustee abandoned claim to proceeds, leaving for judicial determination the priority status claimed by two creditors herein, West Kentucky Production Credit Association (PCA) and Cooper Hartón and William Hancock, Jr.,...
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ORDER A trial was held in the above-titled declaratory judgment adversary proceeding before the Honorable Kenneth G. Owens on July 19, 1983. Ronald Groth of Thomson, Wahlfors, Moran & Groth, Ltd. represented the plaintiff, Dean Beutel (Beutel), and Virginia Dwyer of Briggs & Morgan, P.A. represented William Joanis the trustee. Due to the death of Judge Owens, this matter is to be determin...
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MEMORANDUM OF OPINION AND DECISION The Tenna Corporation through its trustee seeks to avoid an alleged preference and recover from the United States of America the $527,264.37 payment of income tax assessments made to the Internal Revenue Service. From the stipulations submitted by the parties and the evidence at trial, the Court finds the pertinent facts as follows: 1. On Decem...
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MEMORANDUM DECISION AND ORDER We are again asked to interpret provisions of Oklahoma’s oil and gas lien statutes for purposes of administration of this bankruptcy estate. The issue for determination is a narrow one and in the most elementary terms is a question of when the statutory four month period for filing a lien statement runs as to a supplier of labor or material under contract to ...
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MEMORANDUM OPINION Presently before the Court is Debtor’s Petition for Determination of Status of Claims of Midlantic National Bank wherein the Court is asked to determine whether a secured creditor whose financing statement expires subsequent to the filing of a petition in bankruptcy must file a continuation statement in order to maintain its secured status. Midlantic National Bank,...
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MEMORANDUM ON TRUSTEE’S MOTIONS FOR CONTEMPT At issue is whether the involuntary debt- or’s failure to comply with both his statutory duties, arising under 11 U.S.C.A. § 521 (1979), and two orders of this court is contemptuous. If so, the court must also determine whether it has authority, pursuant to either 11 U.S.C.A. § 105 (1979) or 28 U.S.C.A. § 1481 (Supp.1983), to grant any relief t...
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MEMORANDUM OF DECISION ON MOTION TO AMEND FINDINGS The Chapter 7 debtors seek to amend the judgment entered December 16, 1983 and the findings of fact and conclusions of law contained in my memorandum of decision, particularly as to the secured status of Government Employees Insurance Co. (Geico) under 11 U.S.C. § 506. The issue is whether the court can avoid a lien on the Chapter 7 ...
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MEMORANDUM OF DECISION This matter comes before the Court on the trustee’s objection to Heritage Savings Bank’s claim of a perfected security interest in the debtor’s mobile home. At issue is the sufficiency of the financing statement filed by the Bank with the Secretary of State. The sufficiency of that financing statement is governed by Me.Rev.Stat.Ann. tit. 11, § 9-402(1), which states in part...
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ORDER AUTHORIZING PAYMENT OF INTERIM ATTORNEY FEES The two firms representing the debtor (Griffin, Dysart, and Locke, Purnell) and the firm representing the creditors’ committee have made applications for interim allowances of attorney fees and for reimbursement of expenses as follows: Date Applicant Amount 12-5-83 Berman, DeLeve $ 16,968.25 1-5-84 Berman, DeLeve 9,871.72 ...
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DECISION Debtors, Theodore Dvoroznak and Gail Dvoroznak (“debtors”), brought on a motion to avoid certain judicial liens held by European American Bank and Trust Company (“EAB”) and Sears Roebuck & Co. (“Sears”) under 11 U.S.C. § 522(f) on the grounds that said liens impair debtors’ right to statutory exemptions. BACKGROUND On November 4, 1981, debtors filed a petition under Chapter ...
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MEMORANDUM DENYING RELIEF FROM THE AUTOMATIC STAY AND ORDERING THE TURNOVER OF A CASH BOND On September 13, 1982, the debtor filed a petition in bankruptcy seeking relief under Chapter 11 of the Bankruptcy Code. A creditor, Taneytown Tires, Inc. (Taney-town), filed a complaint to modify the automatic stay. The debtors filed an answer and we held a pre-trial conference at which time counsel agreed...
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MEMORANDUM OPINION Presently before the Court is a Complaint for Relief from Stay wherein Plaintiff, inter alia, seeks authorization to sell certain of Debtors’ motor vehicles in order to satisfy its indebtedness. In response thereto, Debtors argue that two of the aforementioned vehicles are tools and implements of Debtors’ trade, and as such, Plaintiff’s nonpossessory, nonpurchase-money secu...
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ORDER SUSTAINING CREDITOR’S OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN Pending before the court is an objection to the confirmation of the debtors’ joint Chapter 13 plan of arrangement filed by Westark Production Credit Association *434 (hereinafter “Westark”). The matter came on for hearing September 6, 1983. The following relevant facts are not disputed. The debtors,...
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ORDER ON REVIEW OF UTILITY DEPOSIT This chapter 11 debtor’s application under 11 U.S.C. § 366(b) for review and modi*11fication of the amount of the utility deposit required of it for continued telephone service was heard on March 6. The debtor is a reseller of telephone long distance services and, therefore, its telephone bills are substantial. Southern Bell has demanded, under § 366(b), a deposi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW; ORDER LIFTING STAY On January 10, 1984, a hearing was held on the motion of L.R.K. Holdings, Inc., hereafter “LRK”, to vacate the automatic stay to enable enforcement of a Writ of Possession against Mechanical Unlimited, Inc., hereafter “Debtor”. Testimony was received at the hearing from Lionel Ribel-lia, the vice president and secretary of Debtor, and ...
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MEMORANDUM OPINION AND ORDER ISSUE: DOES RULE 5002 PROHIBIT THE APPOINTMENT OF A LAW FIRM AS COUNSEL TO THE INTERIM CHAPTER 7 TRUSTEE WHEN A MEMBER OF THAT FIRM SERVED AS A FORMER JUDICIAL COLLEAGUE WITH THE APPOINTING BANKRUPTCY JUDGE PRIOR TO THE FILING OF THE BANKRUPTCY PETITION? Introduction: Among the comprehensive set of Rules of Bankruptcy Procedure which became effective on August...
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OPINION CAME ON to be heard and was heard the amended complaint to determine dis-chargeability of a debt and other relief filed by the Plaintiff, Fairlene B. Lindsey, individually, and Fairlene B. Lindsey, as Executrix of the Estate of A.D. Ellis; amended answer filed by the Defendants, Elizabeth A. Jackson; Jaco, Inc.; and United Southern Bank, a Mississippi corporation; all parties being represe...
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MEMORANDUM OPINION This matter came before the court on the objection by the Internal Revenue Service (“IRS”) to confirmation of the debtors’ chapter 13 plan. The IRS appeared through Assistant United States Attorney, Herbert C. Sundby. The debtors’ attorney, Edward J. Benett, conferred with the trustee on the day of the confirmation hearing, August 25, 1983 but did not appear at the sche...
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DECISION AND ORDER GRANTING MOTION FOR LEAVE TO FILE A CLAIM OUT OF TIME Heard on December 1, 1983 on the trustee’s objection to the Motion of Thorp Credit, Inc. for leave to file a proof of claim out of time. Thorp argues that regardless of its failure to file a timely, formal proof of claim, the debtors, the trustee, and the Court had actual notice, within the statutory time period, tha...
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MEMORANDUM DECISION The three plaintiffs assert an unliqui-dated claim against Stephen C. Reiser and a corporation which bears his name on account of his alleged embezzlement of $155,-000. Claims 25 and 27 filed against the debtor in this case assert this liability against the debtor because Reiser is a principal of the debtor and the embezzled funds augmented the debtor’s assets. In this...
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ORDER CONCERNING REQUEST FOR CONFIRMATION PURSUANT TO 11 U.S.C. § 1129(b) THIS CAUSE came on to be heard on February 22nd and 23rd, 1984, for an evi-dentiary hearing upon the Debtors’ request for confirmation of the Plans of Reorganization filed herein, notwithstanding the failure of the major secured creditor, The Farmers Home Administration of the United States of America, to accept the Plans...
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MEMORANDUM OPINION I The sole issue involved in this proceeding concerns whether an award of prejudgment interest should be entered. The prejudgment interest issue is an outgrowth of an order entered by this court on May 27, 1983. See, Schecter v. Acme Screw Co., et al. (In re Assured Fastener Products Corp.) 81 A 3870 (Bankr.N.D.Ill. May 27, 1983). Through the aforesaid order, judgments were ent...
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OPINION In this liquidating Chapter 11 proceeding the attorneys and accountants who have performed professional services in connection with the administration of this proceeding are seeking the allowance of compensation for such services and reimbursement of their expenses. All are in the nature of final allowances except the applications of Stroock & Stroock & Lavan (“S & S & L”) and Mai...
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MEMORANDUM The issue is whether a federal court jury verdict and judgment against the debtor for violation of the plaintiffs constitutional rights has collateral estoppel effect in this dischargeability proceeding pursuant to 11 U.S.C.A. § 523(a)(6) (West 1979). After review of the entire federal court record, as mandated in this circuit by Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981), the...
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MEMORANDUM AND ORDER This matter came on for hearing on the Objection of the trustee to some of the claimed exemptions of the debtors, specifically the interest of Joan Pauquette, co-debtor, in the estate by the entirety in excess of the mortgage indebtedness, her homestead exemption of $30,000.00 allowed under state law, i.e., 27 V.S.A. § 101, and $5,000.00 of the residence exemption of ...
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MEMORANDUM AND ORDER The debtor, Wayne Ford-Chrysler, Inc. (Wayne), a car dealership, filed a voluntary petition under chapter 11 of the Bankruptcy Code on May 10, 1983. The instant matter comes before the court on the complaint of Chrysler Credit Corporation (Chrysler), Wayne’s floor-plan financier, for a judgment in the amount of $37,373.06 plus costs, which figure represents the proceeds, in...
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MEMORANDUM OPINION The issue here arises upon motion of a petitioning creditor for Summary Entry of an Order for Relief. On December 28,1983, W.H. Smith Publishers, Inc. (“W.H. Smith”) filed an involuntary petition under Chapter 7 of the Bankruptcy Reform Act of 1978 (“the Code”) against Joseph F. McEvoy, the alleged debtor. Upon application of W.H. Smith, the Court allowed service o...
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MEMORANDUM OPINION Mary-Michaele Morrissey, debtor herein, filed a petition for relief under Chapter 13 of the Bankruptcy Reform Act of 1978 (“the Code”) on May 20, 1983. Upon the motion of the Trustee in Bankruptcy, this Court converted the debtor’s case to a liquidation proceeding under Chapter 7 of the Code on January 11, 1984. Before conversion of the instant case, a disputed issue ar...
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MEMORANDUM OPINION This case is before the Court upon the Trustee’s objection to the Internal Revenue Services’ (I.R.S.) unsecured claim for pre-petition penalties and interest. The debtor had its Chapter 11 plan confirmed by the Court on April 25, 1983, and provided for the payment of taxes within eighteen months. The Trustee has filed a memorandum of law in which he argues that the Cour...
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ORDER ON INTERIM FEE APPLICATIONS In these four related chapter 11 cases, interim fee applications by the debtors’ attorneys for $527,613 (C.P. Nos. 434-438) and the creditors’ committee for Colombian Coffee for $51,124 (C.P. No. 437) were heard on January 19, 1984. They were opposed. (C.P. Nos. 525, 526, 527, 528.) It has been argued that because the interests of the several debtors...
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OPINION Currently before this court are two motions in this adversary proceeding: (1) defendants’ motion to dismiss plaintiff’s complaint; and (2) plaintiff’s motion for a jury trial. The complaint, originally filed January 24, 1983, was brought to set aside a 1978 conveyance by the debtor to his wife of their residence. A second conveyance of a Stardust Houseboat was also challenged in t...
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MEMORANDUM AND ORDER The case at hand forces a reappraisal of a local rule of court which imposes a time limitation for the filing of lien avoidance motions. Our rule does not stand the test of case law analysis and will no longer be strictly enforced. We fall short of eliminating the rule entirely only for the reasons which are expressed in the conclusion of this opinion. The rule w...
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MEMORANDUM OPINION This is a prototype preference action arising in the aftermath of the collapse of Wathen’s Elevators, Inc., which filed for reorganization under Chapter 11 on May 12, 1982. Although we deal with a payment made February 23,1982, to a single farmer, we necessarily fashion a rule of law that may control the disposition of payments made to several farmers just prior to the ...
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This is a motion brought by the debtor, Jacoby-Bender, Inc. (“debtor”), pursuant to 11 U.S.C. § 1146(c) (Supp. IV 1980) for an order exempting it from the payment of the New York City Real Estate Transfer Tax, N.Y.C.Admin.Code § II 46-5.0, as authorized by N.Y.Tax Law § 1201(b) (McKinney Supp.1983-84); the New York State Real Estate Transfer Tax, N.Y.Tax Law § 1402 (McKinney Supp.198...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motions for Relief From Stay filed by Stephen P. McMahon, Thomas McNeill, and Maria and Ramiro Echeverri. Each of these creditors and the Debtor-In-Possession have agreed that the issues addressed in these Motions are primarily issues of law which can be decided solely upon the submission of written arguments. Inasmuch as ...
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ORDER This cause comes before this Court for Trial on the Complaint to Determine Dis-chargeability filed by the Plaintiff-Creditor. The Court has reviewed the testimony offered at that Trial as well as the arguments presented by counsel on behalf of their respective clients. Based upon that review and for the following reasons the Court finds that the debt in question is discharge-able. FACTS...
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OPINION Bloss Glass Company, Inc. (Bloss) commenced this proceeding seeking permission to reject executory contracts pursuant to 11 U.S.C. § 365(a) of the Bankruptcy Code. For the reasons provided herein, we grant the relief requested. On or about November 1, 1983, Bloss filed for relief under Chapter 11 of the Bankruptcy Code. Bloss, a small glass contractor engaged in the business of fabricatin...
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MEMORANDUM AND ORDER On August 5, 1983, Vermont Fiberglass, Inc. (Fiberglass), a manufacturer of swimming pools and spa equipment, filed a petition under chapter 11 of the Bankruptcy Code (Code) in order to rehabilitate as an ongoing business. Twenty-two and a half months prior to the filing of the petition, on September 25, 1981, the Vermont Secretary of State had revoked the corpor...
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MEMORANDUM OF DECISION Evelyn Bradley is a secretary who lives in southwest Los Angeles. In May, 1982, she gave a third trust deed on her home to HRL Construction, Inc., together with an installment contract to pay $8,901 plus interest over 10 years. Apparently, these were assigned to Cashman Investment Corporation. She never made a payment on the loan. She did, however, on August 30, 198...
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MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION TO STRIKE DEMAND FOR JURY TRIAL This matter is before the Court on the plaintiff’s (FISCO) Motion to Strike Demand for Jury Trial in an adversary proceeding to recover a preference. I. BACKGROUND The defendant, Apollo Sign Company (Apollo), allegedly received three preferential payments totalling $4,859.00 within ninety days prior to the April 2,...
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ORDER GRANTING REQUEST FOR PRELIMINARY INJUNCTION OF PERFECTION AND FILING OF MECHANICS’ LIENS AGAINST CO-DEBTORS THIS MATTER was before the Court on March 2, 1984, proper notice having been given to the parties herein, for hearing upon Plaintiffs’ request for a preliminary injunction, as set forth in their Amended Complaint for Temporary Restraining Order and Injunction of Proceedings Against Cod...
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*196 MEMORANDUM OPINION Plaintiff seeks a determination that certain indebtedness owed it by Defendant is non-dischargeable under 11 U.S.C. § 523(a)(2)(B). Plaintiff, whose statutory duty it is to disburse and administer payments under the Missouri Aid to Families with Dependent Children (AFDC) program alleges that Defendant applied for and received such payments for March, April...
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DECISION ON APPLICATION TO HAVE DEBT OF BENEFICIAL FINANCE CO. OF NEW YORK, INC., DECLARED NONDISCHARGEABLE. Beneficial Finance Co. of New York, Inc. (“Beneficial”) has filed a complaint objecting to the dischargeability of the debt owed to it by the debtor, Sue Contento, on the ground that it is nondischargeable under 11 U.S.C. § 523(a)(6) because of the debtor’s conversion of insurance ...
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MEMORANDUM OPINION AND ORDER This matter came on to be heard on the complaint of the Firstmark Financial Corporation to determine the dischargeability of a specific debt pursuant to 11 U.S.C. § 523(a)(6). Considering the evidence adduced at trial, the stipulations of fact, and the memoranda of law submitted by the parties, the Court finds the debt to be dis-chargeable. FACTUAL BACKGR...
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DECISION DENYING PRIORITY STATUS TO CLAIM 11 OF THE CITY OF PAWTUCKET WATER SUPPLY BOARD Heard on December 15,1983 on the debt- or’s objection to the claim of the City of Pawtucket Water Supply Board, which seeks priority status for the payment of water bills, pursuant to 11 U.S.C. § 507(a)(6)(B),1 on the theory that water charges are a form of property tax. For the reasons stated below, we conclu...
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MEMORANDUM At issue is, first, whether a signature on a promissory note attributed to defendant is genuine and, secondly, if forged, whether defendant ratified the forgery by failing to take steps to either renounce an interest in or convey out of his name certain shares of stock after learning that the stock had been purchased in his name, without his knowledge, with proceeds of a loan m...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case involves a dischargeability question arising out of an alleged willful and malicious injury inflicted during a fist-fight between two individuals. 11 U.S.C.A. § 523(a)(6) (1979). Trial was held January 24, 1984. I The plaintiff, John S. Stansberry (Stans-berry), and the defendant, George Marvin Hines (Hines), had been involved in a previous ...
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MEMORANDUM OPINION On February 13, 1984, the court heard the Trustee’s motion for an order approving the Trustee’s rejection of certain collective bargaining agreements which he alleged con *557 stitute executory contracts under Section 365 of the Bankruptcy Code. Filing briefs only were Michael T. McCoy of Warnock & Hurd, co-counsel for the International Brotherhood of ...
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OPINION I. FACTS A. Background of Kings Inn This appeal and the underlying bankruptcy cases have evolved out of an attempt by various individuals and entities to construct and operate a casino, hotel and restaurant, known as the King’s Inn in Reno, Nevada. Kings Inn, Ltd., a limited partnership consisting of Matthew E. Chotas, Joseph Fischer and Otis K. Scoggin, as limited partn...
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On February 14, 1984, this court approved a compromise and settlement of the complaint filed by trustee under Title 11, United States Code, Section 548. The compromise and settlement provided for the trustee and the defendant to offer the property involved in this case for sale through April 30 of 1985. The stipulation recognized the rights of trustee and of J.R. Nolen in the real property invo...
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ORDER DETERMINING VALIDITY, PRIORITY AND EXTENT OF MECHANICS’ LIEN THIS MATTER came on for trial on February 29, 1984, on the Plaintiff’s Complaint to Determine the Validity, Priority, and Extent of Mechanics’ Lien. From the evidence, pleadings, and discovery herein, the Court finds the following. In October, 1982, Defendant entered into an agreement to fabricate and erect certa...
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ORDER On February 22, 1984, a hearing was held on the question of approval by the Court of the proposed disclosure statement filed by the debtor in the above-referenced Chapter 11 bankruptcy proceeding. An objection to the disclosure statement was filed by General Electric Real Estate Equities, Inc. (“GEREE”) on February 21, 1984. GEREE contends that the proposed disclosure statement omits thre...
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ORDER On June 7, 1983, Larry James White and Douglas R. Daum, attorneys at law, exercised the power of sale in a security deed granted by the above-named debtor to se*538cure an indebtedness for attorney’s fees. The debtor filed his Chapter 13 petition on November 4, 1983. The Chapter 13 plan treats White and Daum as creditors, and the plan proposes to cure and reinstate the indebtedness to White...
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ORDER ON MOTION FOR PROTECTIVE ORDER Before the Court is the “Motion for Protective Order” filed by J. Edward Pearson, a/k/a Ed Black, and National Mortgage Protectors, Inc., Defendants, in which Defendants, ask this Court to seal all papers filed in this adversary proceeding, and to seal the docket on this adversary proceeding. The motion requests the Court to authorize examination of th...
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ORDER RE: APPLICABILITY OF CODEBTOR STAY The Motion For Relief From Stay filed herein on January 6, 1984, by American Savings and Loan Association (hereafter “Creditor”) was brought on for preliminary hearing by telephone conference before the undersigned Judge on January 23,1984. At said conference, creditor was represented by Allan S. Chock, Esq., and debtors Jeffrey Nobuo Ikeda and Dor...
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ORDER This matter came before the Court on the applications of Debtor’s counsel for allowance of attorney fees. Debtor’s counsel has previously received $10,000.00 in fees from third parties, i.e., former officers of the Debtor. Counsel now seeks additional fees in the amount of $3,181.08. The U.S. Trustee filed written objection to the application on the basis that the bankruptcy estate should...
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MEMORANDUM OPINION This matter came before the Court upon the motion of Windsor Door Company (Windsor) to dismiss this bankruptcy on the grounds that the petition was not filed in good faith. At the hearing on the motion the Court took judicial notice of the pleadings and schedules in this proceeding, as well as those in 7-83-00320 RL. The Court also admitted portions of depositions of the debt...
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MEMORANDUM The issue is whether a state court jury verdict and judgment against the debtor for.assault and battery has collateral estop-pel effect in this nondischargeability proceeding under 11 U.S.C.A. § 523(a)(6) (West 1979). After review of the entire state court record, as mandated in this circuit by Spilman v. Harley, 656 F.2d 224, 228 (6th Cir.1981), the court finds that...
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MEMORANDUM AND ORDER Prior to filing for relief under chapter 7 of the Bankruptcy Code (Code) on July 6, 1983, Mr. and Mrs. Thayer (Thayers) operated three dairy farms in northeastern Vermont. During the period of operation of the farms, the Thayers purchased most of their farm machinery from W.S. Mitchell, Inc. (Mitchell), a local equipment dealer, on credit advanced by Community National Bank...
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MEMORANDUM OPINION The matter at issue involves a motion by the debtors-in-possession to permit the use of certain proceeds which were received from the United States Department of Agriculture under the recently enacted “Payment-in-Kind” (PIK) program. Aetna Finance Company objects to the use of those proceeds, claiming a security interest therein. On December 14, 1981 the debtors-in-possessi...
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ORDER This case is before the Court on the complaint by the Lincoln Financial Corp. (“Lincoln Financial”) for a declaratory judgment validating a foreclosure sale with respect to certain real property owned by the debtors in Haralson County, Georgia. Lincoln Financial foreclosed upon the subject property nine (9) days before the debtors, Anthony Lowell Gray and Helen Dianne Gray, filed th...
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*544ORDER RE: MOTION TO AMEND “ORDER RE ‘MOTION FOR ORDER GRANTING RELIEF FROM AUTOMATIC STAY,’” FILED ON JANUARY 27, 1984 On August 17,1983, Commercial Finance, Limited, (hereafter “Commercial Finance”) filed herein a Motion for Order Granting Relief from Automatic Stay (hereafter “Motion for Relief”), thérein seeking relief pursuant to 11 U.S.C. § 362(d) from the automatic stay under 11 U.S.C. §...
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ORDER This matter coming on to be heard upon the Complaint filed by PEOPLE OF THE STATE OF ILLINOIS, ex rel. TYRONE C. FAHNER, Attorney General of Illinois, for a judgment ordering restitution and imposing a civil penalty pursuant to the Illinois Consumer Fraud and Deceptive Business Practices Act and for a determination that Debtor’s obligations to certain named consumers and for the civ...
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ORDER This matter coming on to be heard upon the Complaint of Plaintiffs, JUDITH L. PAHKLE and KENNETH G. KOWAL-CHYK, Creditors of the above named Debtors, to determine the dischargeability of debts claimed to be nondischargeable pursuant to § 523(a)(6) of the Bankruptcy Code, and upon Debtors’ Motion to Dismiss said Complaint, and the parties appearing by their respective attorneys, and ...
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MEMORANDUM AND ORDER ON COMPLAINT TO AVOID A FRAUDULENT TRANSFER The complaint filed by the Chapter 7 Trustee, John J. Egan (“Trustee”), sought to avoid an alleged fraudulent transfer of real estate by the debtor and his wife. The Court has under advisement the motion of the debtor, David G. Oliver (“debtor”), for summary judgment and the Trustee’s cross-motion for summary judgment. Neith...
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MEMORANDUM DECISION AND ORDER This matter came on for hearing on application to obtain overriding royalty interests. After hearing testimony, the Court requested that the parties brief the issue. The parties complied and after a review of the testimony, evidence and briefs, the Court finds as follows. GEC Production Company, Inc. (hereinafter “GEC”) entered into an oral contract with Mahan & Rows...
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OPINION In this adversary proceeding, the plaintiff, Greyhound Lines, Inc., has filed a Complaint requesting that the debt owed to it by the Chapter 7 defendant-debtor be determined to be nondischargeable pursuant to Sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code, 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). For the reasons hereinafter given, we shall deny the relief requested in the pl...
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*187 OPINION In the case at bench two creditors have filed motions seeking, in the alternative, either dismissal of the debtor’s chapter 7 petition, or a change of venue. For the reasons stated herein we will deny dismissal but will grant the motion for a change of venue. The facts of this case are as follows: 1 The debtor filed a petition for relief under chapter 7 of the Bankruptcy Code...
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OPINION The issue presented herein is whether a creditor can “amend” a proof of claim for a pre-petition debt which has been fully satisfied (as originally filed) by the debtors under the terms of their confirmed chapter 13 plan to include post-petition expenses incurred by said creditor in rectifying a variety of problems caused by the erroneous distribution of funds by the chapter 13 trustee. Be...
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OPINION The issue in dispute is whether we should grant the defendants’ motion for summary judgment on a complaint seeking recovery for defamation and interference with contractual relations. For the reasons stated herein, we will grant the motion. The facts of the case are as follows: 1 The debtor filed a petition for relief under chapter 7 of the Bankruptcy Code (“the Co...
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*20ORDER ON DEFENDANT’S MOTION TO DISMISS AND ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The above-styled adversary proceeding is before the Court on the plaintiff’s request for a declaratory judgment on whether the automatic stay provided by 11 U.S.C. § 362(a) applies to the cosigners and guarantors of debts of the chapter 11 debtor. At a pre-trial conference in this proceeding on October 18, 19...
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MEMORANDUM AND ORDER RE: MOTION FOR MODIFICATION OF STAY I. BACKGROUND Alan Hotchkiss (movant) seeks by motion to modify the automatic stay of 11 U.S.C. § 362(a) 1 to permit him to institute suit against Page-Wilson Corporation (debtor), the debtor in this chapter 11 case. The “cause” 2 which movant claims for relief as set forth in his moving papers i...
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ORDER ON OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION THIS CAUSE came on for hearing upon an Objection to Debtor’s Claim of Exemptions filed by New Port Richey Hospital, Inc. d/b/a Community Hospital of New Port Richey (Hospital), an unsecured creditor of Betty J. Gottling, the Debtor in the above-styled Chapter 7 case. The Hospital seeks the entry of an order disallowing the exemptions claimed by the...
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ORDER (Stay of Adversary Proceedings) These Chapter 11 cases are before the Court under the following circumstances: On March 1,1984 this Court had before it a motion to approve an agreement between the Baldwin-United Corporation, D.H. Baldwin Company, the Indiana Insurance Reha-bilitator and the Arkansas Insurance Reha-bilitator. This agreement is the product of difficult negotiations betwee...
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DECISION DENYING DEBTOR’S MOTION TO AMEND, AND ORDER DISMISSING CASE Heard on January 10, 1984, on the debt- or’s motion to amend her Chapter 13 plan, to reduce payments from $60 to $30 per week. The debtor’s plan was confirmed on November 21, 1983, after she amended her original plan to increase the dividend to creditors from 31% to 75%. The majority of Ms. Roundtree’s debts are educational loan...
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MEMORANDUM AND ORDER This matter came before the court on the defendant’s (Amoco) motion for summary judgment on the plaintiffs (Wolff) complaint for declaratory judgment regarding an easement or license for access to certain real estate. This court, having carefully considered the pleadings, memoranda, depositions and affidavits submitted by the parties along with applicable case law, renders th...
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MEMORANDUM AND ORDER Seventy-seven days before filing in Chapter 11 these farmer-debtors gave a crop lien *185 to secure prior loans, and shortly after filing they commenced a lawsuit against the same creditor to recover the money equivalent of the security interest voluntarily given, $69,000, intending to use the money for operating capital in Chapter 11. Now, almost five months into the C...
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MEMORANDUM OPINION AND ORDER DETERMINING AUTOMATIC STAY TO BE IN EFFECT, DENYING MOTION FOR INJUNCTION AND DENYING MOTION TO DISMISS MOTION FOR RELIEF FROM AUTOMATIC STAY These matters came on for hearing on February 10, 1984 before the United States Bankruptcy Court for the District of Maryland at Baltimore upon the motion of Melvin K. Small and Rose Small (the “debtors”) for an injuncti...
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MEMORANDUM OF DECISION DENYING MOTIONS FOR SUMMARY JUDGMENT AND TO VACATE JUDGMENT; ORDER TERMINATING ORDER LIMITING DISCOVERY A hearing was held on February 7, 1984, at 10:00 A.M. before the Honorable Ralph G. Pagter, United States Bankruptcy Court, to consider motions for summary judgment made by San Antonio Acres, 72 Plus, and Barnes and Jorrie in Adv. LA 83-2721-JB. Also heard was a m...
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MEMORANDUM AND ORDER The above-named Debtors filed for relief under Chapter 7 of the Bankruptcy Code on April 13, 1983. Within the Schedules filed with the Court on that date, the Debtor, Karen Janice Soby, selected property as exempt pursuant to the laws of the State of Minnesota, claiming under those statutes a homestead exemption having a value of $85,000.00 and other personal property having ...
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ORDER Notwithstanding the passage of some five months since the date of filing, this Court is once again confronted with an organizational dispute in these Chapter 11 cases. The present controversy centers upon the composition of the Baldwin-United Official Unsecured Creditors’ Committee (“BUCC”). On December 14, 1983 counsel for BUCC filed a motion to amend the Court’s order appoint...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiff-mortgagee, Germantown Savings Bank, pursuant to Section 362(d)(1) of the Bankruptcy Code, 11 U.S.C. § 362(d)(1), seeks relief from the automatic stay so that it may proceed with a state law foreclosure *1017 action against the Chapter 13 debtors’ real property. For the reasons hereinafter given, we shall grant the...
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MEMORANDUM OPINION This matter comes before the Court upon the debtor’s filing of a Complaint to Recover Preferential Payments in the amount of $2,850.00. Debtor filed the complaint on November 17, 1982, as a debtor-in-possession while proceeding under Chapter 11 of the Bankruptcy Reform Act of 1978 (“the Bankruptcy Code”). Upon conversion of the case to a case under Chapter 7 of the Bank...
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MEMORANDUM DECISION Two basic questions are presented here. First, does an amendment to the homestead statute creating an automatic homestead have retroactive effect as to pre-existing judgments. Second, whether a judgment lien attaches to excess value above the homestead so as to defeat the claim, under 11 U.S.C. § 544(a)(3), of a trustee in a bankruptcy filed subsequent to the judgment....
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*233OPINION This is an appeal by the alleged debtor in an involuntary bankruptcy ease from an order for relief entered as a result of the court having struck the debtor’s answer as a sanction for abuse of the discovery process. We AFFIRM. I. INTRODUCTORY The debtor, Tom Rubin & Associates, is a media consulting and purchasing firm operated by Tom Rubin as a sole proprietor. The debtor served adve...
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OPINION This is an appeal from an order denying appellants’ motion to expunge two lis pen-dens. We affirm in part and reverse in part. I Mr. and Mrs. Erickson, two of the appellants, are principals of the two corporate appellants. The Ericksons and one corporation, Hotel San Maarten of Laguna Beach, Inc., entered into an agreement with Pacific Horizons, Inc., wherein Pacific Horizons would develo...
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MEMORANDUM ON ATTORNEY’S FEES This case involves default by a Debtor in his Chapter 13 plan followed by a Motion to Dismiss filed by the Trustee assigned to the case. The motion was filed on November 2, 1983. On the same date the Trustee filed an application to appoint himself as attorney to the Trustee for the purpose of processing such motion. The Court held a hearing on the Trustee’s Motio...
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MEMORANDUM AND DECISION The matter before the court raises issues under the Uniform Commercial Code where the decisional law, unfortunately, is not uniform. The relevant factual background which raises these issues, as disclosed in the pleadings and evidence received at trial, is as follows. I. BACKGROUND Deephouse Equipment Company, Inc. (Deephouse) operating a business in...
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OPINION On April 20, 1981, Detroit Plastic Products (debtor) filed for relief under chapter 11 of the Bankruptcy Code. On April 29, 1981, the case was converted to chapter 7. When the case was converted, the debtor owed Foothill Capital Corporation (Foothill), a secured creditor, $4,807,977. This debt was secured by all assets of the debtor. Since the secured debt apparently exceeded the fair mar...
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ORDER This matter is before the Court on remand from the United States District Court for the District of Minnesota. I The relevant facts are undisputed. The Debtors are the principal officers and shareholders of Oak Farms, Inc. and Oak Farms Service Co., both Minnesota corporations engaged in agricultural business pursuits. In 1978 Oak Farms, Inc. executed a mortgage on certain parcels of ...
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MEMORANDUM OPINION The Plaintiff seeks to avoid a transfer of real estate between Defendants, Oather Brown and Syble Brown, his wife (Browns), as grantors, and Defendants, Jack Davis and Shirley Davis, his wife (Davises), as grantees. After Defendants filed their answers in this proceeding, Plaintiff moved for judgment on the pleadings, contending that the facts admitted by Defendants in thei...
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MEMORANDUM OPINION This case is before the court on a complaint by the Chapter 11 debtor seeking injunctive relief to prevent the defendants from proceeding to sell or otherwise dispose of certain real property that was subject to a pre-bankruptcy purchase and sale agreement. Venture Properties, Inc. (hereinafter “Venture”) filed its Chapter 11 petition on June 21,1983. Venture is a ...
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MEMORANDUM The issue is whether the debtor’s Individual Retirement Account (“IRA”) is an ex-emptable annuity under T.C.A. § 26-2-111. After consideration of the briefs and arguments of the parties and applicable authority, the court finds that this IRA is not an exemptable annuity under Tennessee law and the trustee’s objection to the claimed exemption should be SUSTAINED. The following const...
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FINDINGS OF FACT CONCLUSIONS OF LAW This matter came before the Court on the motion of the Blue Earth State Bank (hereinafter “Bank”) for an order providing the Bank with adequate protection of its security interests or, in the alternative, relief from the automatic stay to foreclose its security interests. The Court entered an Order denying the Bank’s request for relief from the automatic stay...
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*685 MEMORANDUM AND ORDER ON MOTION OF DEBTOR TO USE CASH COLLATERAL This matter is before the Court on the Motion of the Debtor, Air Vermont, Inc., filed February 2, 1984 to use Cash Collateral from the proceeds of accounts receivable in which both Pioneer Commercial Funding Corporation and the Internal Revenue Service claim an interest by virtue of alleged liens. The Internal Revenue Servic...
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OPINION AND ORDER (Corrected) Pending before the court is the plaintiffs motion for relief from the automatic stay with respect to a 1980 Honda Prelude. The parties have stipulated that the nature of the estate’s interest in the vehicle is at issue. The plaintiff has argued that, since the car was repossessed prior to the date the debtor filed her Chapter 13 petition, the estate’s interest is...
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ORDER GRANTING DEBTOR’S COMPLAINT FOR TURNOVER OF FUNDS, DENYING DEBTOR’S PETITION FOR CONTEMPT AND SETTING DEBTOR’S SUPPLEMENTAL ISSUE SEEKING AVOIDANCE OF CERTAIN PREFERENTIAL TRANSFERS FOR HEARING Pending before the court is a Complaint filed by the debtor in possession in these Chapter 11 proceedings wherein the debtor asks this court for an Order directing the defendant, United State...
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ORDER DENYING CONTEMPT CITATION The issue here is whether the IRS is bound by the provisions for a tax claim contained in an individual’s confirmed chapter 11 plan. The point does not appear to have been raised in any reported decision. An individual debtor seeks a contempt citation against IRS agents because they are attempting to collect a tax debt. The debt was fixed in amount and payment ...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the involuntary petition for relief under Chapter 11 of the Bankruptcy Code filed by QUASAR SALES, INC. [Quasar], ARTHUR R. DESMOND, INC., d/b/a AVENUE “M” [Avenue M] and METCOM, INC. [Metcom], represented by MARTIN B. ZELLS and MERRILL B. MEYER, against DOC EDISON’S VIDEO EMPORIUM, INC. [Debtor], represented by HOWARD M. TURNER...
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MEMORANDUM OF DECISION In this chapter 7 proceeding, the trustee seeks to avoid a security interest granted by the debtors to the Talmage State Bank pursuant to 11 U.S.C. § 544. The issues presented for determination are: 1. Does the Talmage State Bank have a perfected security interest in the stored grain in question. *130 2. Does the trustee have priority over Ta...
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FINDINGS OF FACT On July 21,1975, Debtor, Robert C. Todd, established Individual Retirement Account Number 50-0062-9 at the Bank of Dixie, seeking to take advantage of the tax laws which provide favorable tax treatment to such accounts. On that day, Mr. Todd deposited with the Bank of Dixie, $1,500.00 to establish his Individual Retirement Account. Over the next several years, various deposits ...
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*141 MEMORANDUM OF DECISION This matter comes before the court upon the filing by ITT Consumer Financial Corp. (ITT), of a complaint objecting to the dis-chargeability of a debt incurred by Stephanie Annicchiarieo Walthall (Ms. Walthall), the debtor herein. ITT asserts that Ms. Walthall’s debt is nondischargeable under § 523(a)(2)(A) and (B) of the Bankruptcy Code. The relat...
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MEMORANDUM AND ORDER This involuntary Chapter 11 case was commenced by Crosley Building Corporation of Maine (“Crosley”) ,by the filing of a petition under 11 U.S.C. § 303. Godroy Wholesale Company, Inc. (“Godroy”) was, at' that time, a manufacturer and distributor of general merchandise, operating sixteen variety stores in Massachusetts and New Hampshire under the trade name Go-din Store...
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MEMORANDUM OPINION AND ORDER In this case debtor has moved to disqualify and remove the trustee by reason of the language of Rule 5002, Rules of Bankruptcy Procedure. That Rule provides that: “No person may be appointed as a trustee or examiner or be employed as an attorney, accountant, appraiser, auctioneer, or other professional person pursuant to § 327 or § 1103 of the Code if (1) the person i...
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OPINION AND ORDER ON LIEN AVOIDANCE UNDER 11 U.S.C. § 522(f) The matter before the Court is the question of the availability of the lien avoidance provisions of 11 U.S.C. § 522(f) to Ohio debtors. This Court must follow the binding precedent supplied by the United States Sixth Circuit Court of Appeals in the case of Pine/Giles v. Credithrift of America, 717 F.2d 281, 10 B.C.D. ...
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MEMORANDUM AND ORDER This matter came on to be heard on February 3, 1984 upon the “Trustee’s Application to Obtain Secured Credit pursuant *275 to 11 U.S.C. § 364 and to Pay Additional Retainer” and upon objections thereto filed by The Peoples Banking Company of McComb, Ohio, The Toledo Trust Company, and the St. Joseph Bank and Trust Company. Considering the motion, the writ...
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FINDING AS TO SETOFF This matter is before the court on the complaint of the debtor, The Union Cartage Company, for the turnover of money. The defendant, the Dollar Savings & Trust Company, claims possession of the funds pursuant to a valid setoff. At the pre-trial on November 29, 1983, the parties waived their right to an eviden-tiary hearing and agreed to stipulate to the facts and...
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OPINION The issue presented herein is how much the plaintiff is entitled to receive out of the $625,000.00 proceeds presently being held by the trustee as a result of the latter’s sale of a certain parcel of realty formerly owned by the bankrupt. While we conclude that the plaintiff is entitled to recover some of the proceeds held by the trustee pursuant to a state court judgment the plai...
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MEMORANDUM OPINION The issue at bench is whether or not we shall confirm the debtors’ Chapter 13 Plan. For the reasons hereinafter given, we shall deny confirmation of the Plan. 1 The debtors’ Chapter 13 Plan proposes, inter alia, that the residential mortgage ar-rearages owed to Germantown Savings Bank (hereinafter “GSB”), the first and only mortgagee, shall be cu...
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MEMORANDUM At issue is whether the plaintiff debtors, pursuant to 11 U.S.C.A. § 522(f)(1) (1979), may avoid a federal tax lien, 26 U.S.C.A. § 6321 (1954), and levy, 26 U.S.C.A. § 6831 (1954), upon insurance proceeds from the destruction of their home, ordinarily exempt under applicable state law. Tenn. Code Ann. § 26-2-304 (1980). I The debtors filed their voluntary petition for...
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MEMORANDUM AND ORDER The Department of Health and Human Services, Health Care Financing Administration, an agency of the United States, filed motion on July 8, 1982, for leave to file proof of claim in the above case in the amount of $1,951,283.00. The date upon which the proof of claim was tendered for *468 filing was long after the bar date for filing claims had passed. Thi...
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ORDER ON FEE APPLICATIONS A confirmation hearing was held on January 9 upon this debtor’s chapter 11 plan. The plan has been confirmed. At the same time, two fee applications were heard. The National Association of Credit Management of South Florida Unit, Inc., has filed an application (C.P. No. 70) for $3,750 for services: “rendered in representing the Creditors’ Committee both unofficially and o...
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MEMORANDUM OPINION The issue with which the Court deals in this opinion presents itself identically in two adversary cases in which the named defendant is James Bowen, i.e. In re James N. and Donna C. Bowen, 83-170-BK-J-GP, adversary 83-322, Georgia Higher Education Assistance Corporation v. James N. Bowen and adversary 83-823, Board of Regents of the University of Georgia v. James N. Bowen....
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PARTIAL OR PRELIMINARY FINDINGS AND CONCLUSIONS This matter was tried on the Complaint of the Trustee against Defendant, SAMUEL FOOSANER, to compel turnover, requesting an accounting, seeking damages, and on the counterclaim of FOOSANER against the Trustee. Several other Defendants originally joined by the Trustee were dismissed prior to trial. (C.P. Nos. 41, 42, 43). The trial was held on two sep...
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MEMORANDUM DECISION RE MOTION TO REMAND AND MOTION FOR CHANGE OF VENUE The Court, having reviewed the parties’ memoranda, reply memoranda, affidavits and exhibits and being fully apprised of the matters contained therein, finds as follows: On or about February 24, 1983, George C. Seybolt (“George Seybolt”) filed a civil action in Suffolk County, Massachusetts, Superior Court (C.A. No...
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MEMORANDUM OPINION This case is before the court on a Motion To Dismiss Or Convert filed by the Chapter 13 trustee. Separate adversary proceedings are also pending in which the issue has been raised as to whether Metropolitan Mortgage Corporation (hereinafter “Metropolitan”) shall be further restrained from proceeding to foreclose its mortgage upon the debtors’ residence. Since the issues in bo...
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DECISION AND ORDER ON DEFENDANT’S JURY TRIAL DEMAND AND PLAINTIFF’S MOTION TO STRIKE In answering the two complaints served in the adversary proceedings commenced by Harold Young, the Trustee (“Trustee”) of this Chapter 7 debtor, Paula Saker & Co., Inc. (“Paula Saker”), several of the defendants demanded, pursuant to Rule of Bankruptcy Procedure 9015 (“Bankruptcy Rules”), a jury trial in ...
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OPINION This case is controlled by the real property laws of the State of Nevada. The issue is whether a lease and option to purchase real property held by the plaintiff-debtor-appellee, the Crystal Palace Gambling Hall (the “debtor”), is enforceable against the interests of the appellants. The bankruptcy court held that the lease and option is valid against their claims. We affirm. ...
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FINDINGS, CONCLUSIONS AND ORDER ON OBJECTION OF TRUSTEE TO CLAIMS FILED BY DEBTORS The matter before the Court is the objection of the trustee, Gene Fischer, to claims filed by the debtors, Franklin Eugene Starkey and Bernette Bethel Starkey, on behalf of the United States of America and the State of Colorado for income tax liabilities for the years of 1978, 1979, 1980, and 1981. The trustee co...
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MEMORANDUM OPINION THIS IS the next, and hopefully the last, chapter in the turbulent history of the trials and tribulations of Alafia Land Development Corporation (Alafia), the Debtor, who initially sought relief under Chapter 11 of the Bankruptcy Code, stumbled its way to rehabilitation, fell into a Chapter 7 liquidation case, but ultimately arrived after a long journey to a successful ...
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MEMORANDUM OPINION The applicability of the Doctrines of Collateral Estoppel and Res Judicata is once again tested in this complaint seeking a determination that the debtor’s liability to plaintiff is not dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(6). The fac *271 tual background of the underlying debt in question is summarized as follows: A prepetition civil action was inst...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW After hearing on December 1, 1983, and by orders of this Court dated December 13, 1983, David A. Schechter, Esq., was denied compensation for services performed as trustee in the captioned Old Act cases. Upon consideration of the trustee’s extraordinary and unjustified delay in his handling of the cases to which he was appointed, the Court felt that...
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MEMORANDUM OPINION AND ORDER This matter arises out of a Complaint for Avoidance of Preferential Transfer and Monetary Judgment filed against the defendant, Brown Feed & Chemical Company (hereinafter ‘Brown’), in the Chapter 11 case of Amex Trading Company, Inc., fka Evergreen Trading Company, Inc. and Evergreen Brokers, Inc., 1 BK No. 83-20311, Adversary No. 83-0526. The compl...
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MEMORANDUM OPINION AND DECISION FACTS On February 18, 1982, involuntary petitions under Chapter 11 of the Code were filed against the debtor, Golden Plan of California, Inc. and its three related entities, State Loan Servicing, Inc., Financial Securities Agency, Inc., and Mid-Central California, Inc. Thereafter, on April 9, 1982 the court entered an order for relief, appointed Melvyn...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 11 case and the matter under consideration is a Motion to Dismiss the above-styled adversary proceeding. The Motion is challenging this Court’s subject matter jurisdiction and also contends that the complaint fails to state a claim for which relief can be granted. The complaint filed by Urban Development Limited, Inc. (the Debtor) consists of two c...
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MEMORANDUM OPINION The J.I. Case Credit Corporation (Mov-ant) seeks relief from the automatic stays under 11 U.S.C. § 362(a) in order to enforce its security interests in three tractors, two (2) model 4890 Case tractors and one (1) model 2670 Case tractor. These tractors belong to the Debtors, both of whom initially filed Chapter 11 petitions but later converted to Chapter 7 proceedings. From...
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Memorandum Decision Introduction This adversary proceeding was filed by plaintiff Security Bank of Nevada (Bank) to determine the dischargeability of a debt incurred by the debtor, one of its former customers. For the reasons detailed below, the Court concludes the debt is nondis-chargeable. 1 Facts In November 1981 (the exact day is not apparent from th...
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MEMORANDUM The question before the court is whether the mail of defendant Patricia Shelby, the debtor’s former personal secretary, should be redirected. The trustee contends Shelby is the agent and alter ego of the debtor and that she has served as a conduit of funds on the debtor’s behalf since the filing of the involuntary petition. Denying she is the debtor’s alter ego, Shelby asserts that red...
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IN WHICH WE FIND BANKRUPTCY RULE 3003 UNCONSTITUTIONAL, IN PART The Bankruptcy Code is a remarkable improvement over the Bankruptcy Act. Among its many virtues are efforts to eliminate the necessity of creditors having to file claims in certain instances. Consider § 1111(a): A proof of claim or interest is deemed filed under section 501 of this title for any claim or interest that ap...
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MEMORANDUM OPINION This Chapter 13 case requires the court to apply the standards for determining good faith under 11 U.S.C. § 1325(a)(3) established in Flygare v. Boulden, 709 F.2d 1344 (10th Cir.1983). Debtor is a library assistant. He is married, but lives apart from his wife and two children. Debtor presently earns $382.00 take-home pay every two weeks. He has had his present job since ...
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OPINION Before GEORGE, ABRAHAMS, and HUGHES, Bankruptcy Judges. ARNOLD L. KUPETZ, the Trustee in the above-entitled case, has appealed an order of the bankruptcy court extending the time for a number of unsecured creditors to file their respective proofs of claim. Although we conclude that the order of the lower court was improvidently granted, we vacate that order without prejudice to the claims...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A) for its claim of $7,992 against the debtor. The debtor, who has no attorney, appeared at trial and denied the essential allegations. Because •the debtor was not properly served, no default has been sought or granted on account of the debtor’s failure to plead. The matter was tried on February 16, as sche...
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MEMORANDUM AND ORDER ON COMPLAINTS OF TRUSTEES IN BANKRUPTCY TO STRIKE JUDGMENT AND OF JUDGMENT PLAINTIFF FOR RELIEF FROM STAY These matters come before the Court on Complaint of the trustees in bankruptcy of the corporate and individual bankrupts in the within cases to strike a pre-bankruptcy judgment entered against said bankrupts jointly in the Court of Common Pleas of Erie County, Pennsylvani...
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OPINION In this Chapter 7 case, the debtor seeks, pursuant to Section 522(h) of the Bankruptcy Code, 11 U.S.C. § 522(h), to avoid the transfer of his tools and their containers in order to recover from the transferee and exempt the value of the tools and their containers. For the reasons hereinafter given, we conclude that the transfer in question cannot be avoided by the debtor. 1 *867 I...
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OPINION AND ORDER This cause comes to be heard on the complaint of Heather Companies against Richard K. Amano for the possession of the premises known as Unit C-l at 2818 North *864 Halsted Street in Chicago, Illinois. The issues presented in this proceeding are twofold: what type of notice the defendant was obligated to give the plaintiff under the terms of the lease and whether such notice ...
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OPINION These proceedings against the two debtors, Harvey H. Sobel and Florence N. Sobel, have as their purpose to establish the liability of the Sobéis to the plaintiffs for compensatory and punitive damages due to fraud and the nondischargeability of these liabilities. With the consent of all sides, the action brought by Silvio Montalto was consolidated for all purposes with the suit br...
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OPINION Presently before the court are two cross motions for summary judgment. One has been filed by the defendant and the other has been filed by the plaintiff. There are no genuine issues of material fact and the court is of the opinion that one of the movants is clearly entitled to judgment as a matter of law. Factual Background On December 10, 1982, Gayle Oil Company, In...
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ORDER AVOIDING PREFERENTIAL TRANSFER Finding that the funds paid by the debtor to Warner-Fruehauf Trailer Co., Inc. [“Warner-Fruehauf”], were funds of the debtor and were not subject to a constructive trust, the transfer will be avoided. Findings of Fact 1. A truck owned by the debtor was involved in a traffic accident on February 12, 1980, with a tractor-trailer belonging to I.J. and E.W...
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MEMORANDUM OPINION In this Adversary Cause, the Plaintiff, a Chapter 11 Trustee, seeks the recovery from Defendant Bank of sums totaling $5,755.89 paid by the Debtor post-petition, as interest upon each of two promissory notes, each given by Debtor to evidence a debt arising out of the issuance and funding by the Bank, at Debtor’s request, of a letter of credit. Recovery is sought under 11 U.S.C....
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MEMORANDUM OPINION AND ORDER In this Chapter 11 case debtor proposes to sell a portion of its real estate to fund its cattle raising operation. Mutual of New York, hereinafter Mony, holds a security interest in the real estate. It opposes the sale and proposed use of the proceeds. Bank of Wheaton holds a security interest in cattle owned by the debtor. The Bank has filed a Complaint to Lift the...
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This is a motion made by Tina Russo, wife of the bankrupt Lucio F. Russo, (“Russo” or the “bankrupt”) to vacate the confirmation of the sale of the trustee’s survivor-ship interest in marital property, to Avery J. Gross, (“Gross”) or to the estate of Reuben E. Gross, (“Gross estate”) on the ground that Gross was the former trustee in bankruptcy of Russo’s bankruptcy estate and therefore a fiduc...
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MEMORANDUM OPINION This case was commenced by the Debtors, James and Cheryl Whitman, on February 10, 1983, seeking turnover of sales commissions allegedly due the Plaintiff, James Whitman (Whitman), from the Defendant, SeedTec International, Inc. (Seed-Tec). SeedTec admits a commission was earned but claims a setoff pursuant to section 553 of the Code. The parties have stipulated to the facts a...
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DECISION SUSTAINING TRUSTEE’S OBJECTION TO CLAIMS OF EDWARD CONSOVE, AND GRANTING IN PART THE TRUSTEE’S REQUEST FOR ATTORNEY’S FEES Heard on July 18, 1983, on the trustee’s objection to the allowance of claims filed by Edward Consove, and on trustee’s counterclaim for interest, costs, and attorney’s fees. More than three years ago, on September 23, 1980, Roco Corporation was petition...
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DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, HOLDING LOAN USURIOUS AND PAYMENTS REFUNDABLE Heard on cross-motions for summary judgment. Household Finance Corporation, the plaintiff in this matter, filed a complaint to have its loan to Glenn R. Swartz, Jr. declared nondischargeable. Swartz counterclaimed (Count I) that the loan contract between the parties is usurious and void be...
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MEMORANDUM OPINION These matters came before the Court upon the filing of a motion by the debtor to extend the exclusive periods for filing a plan of reorganization and a motion by the creditors’ committee to convert this proceeding to one under Chapter 7 of the Bankruptcy Code. After notice to all creditors and other parties in interest, hearings were held on the respective motions. After carefu...
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I. INTRODUCTORY The debtor, Victory Construction, appeals from an order terminating the automatic stay of 11 U.S.C. § 362 against foreclosure of its sole asset, a parcel of improved real estate. The trial court ruled that the debt- or’s lack of good faith in filing its Chapter 11 case was cause for relief from the stay imposed by 11 U.S.C. § 362. The basic issue presented by the parties is whether...
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MEMORANDUM AND ORDER This matter is before the Court on a Motion brought by Cen-Dak Leasing, Inc., a creditor in the above bankruptcy proceeding, seeking a relief from stay and compelling the Debtors In Possession to assume or reject leases. The Motion was filed on October 24, 1983, and the Debtors inter *104 posed their response thereto on November 4, 1983. By its Motion, Ce...
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ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs, the Official Creditors’ Committee of Chief- Freight Lines Company and debtor Chief Freight Lines Company, bring this motion for partial summary judgment as to the first two counts of their complaint pursuant to Bankruptcy Rule 7056 and Rule 56 Fed.R.Civ.Proc. The first count of plaintiffs’ complaint seeks to avoid security int...
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OPINION The issue in this case is whether a creditor, who commenced garnishment proceedings against the debtor grounded on a lawsuit instituted by the debtor against a third party, has a valid lien on the settlement proceeds of that action where the settlement occurred after the debtor filed for relief under the Bankruptcy Code (“the Code”). If so, we must determine if the creditor is ent...
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Debtors Malcolm and Kathleen Stinson filed a Chapter 7 case on February 22, 1982 claiming federal exemptions under 11 U.S.C. § 522(d). Arizona “opted out” of the federal exemptions effective July 31, 1980. The court held that the Stinsons are entitled only to exemptions provided under Arizona State statutes and the debtors appeal. We affirm. The issues raised by the Stinsons concern the constit...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW A hearing was held on January 3,1984 on Plaintiff’s Complaint, at which time, Raymond Okuma, Esq., represented Elaine S. Yamada, hereafter “Plaintiff”, and Eric Marn, Esq., represented Keith Mamoru Ya-mada, hereafter “Defendant”. The issue before this Court is whether the debt incurred during marriage and assumed by the husband in a “Property Settlement Agre...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on complaint of Thorp Financial Services, Inc., a creditor, by counsel, seeking a determination that the debt due and owing be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(6). The facts as they relate to the issue presented are virtually uncontroverted and may be briefly summarized as follows: FINDINGS OF FACT On the ...
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MEMORANDUM OF DECISION Melvin M. Feldman, Chapter 7 trustee of the estate of Michael K. Finkle, debtor, has filed a complaint to determine ownership of the debtor’s mobile home, for determination of a bank lien, if any, thereon, and for authority to sell the property free and clear of all liens. Named as defendants are the debtor, Michael K. Finkle; his wife, Alice Marie Finkle, whom he married...
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ORDER CONSOLIDATING ADVERSARY ACTIONS FOR HEARING AND DETERMINATION AND FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE DECLARING DEFENDANTS’ RESPECTIVE CLAIMS AGAINST PLAINTIFFS ON ACCOUNT OF FEDERALLY GUARANTEED EDUCATIONAL LOANS TO BE DISCHARGEABLE IN BANKRUPTCY The plaintiff debtors have filed these respective complaints for determinations of the dischargeability of federally guarant...
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OPINION AND ORDER This matter came on for trial on November 4, 1982 on the complaint of Glenn H. Varney to determine his interest in certain crops as against Quentin M. Derryberry, II, the trustee in bankruptcy. For the reasons discussed below, the Court finds that Plaintiff has no interest in the crops in question but is an unsecured creditor in this case under Chapter 7 of the Bankruptcy Code. ...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Complaint to Determine Dischargeability filed by the Plaintiff-Creditor. At the conclusion of that proceeding the Court requested the parties to submit post-trial briefs and any additional evidence they wished the Court to consider. The Court has reviewed all the evidence and the arguments of counsel, both in the briefs an...
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MEMORANDUM Plaintiff seeks rescission of its prepetition discount sale to the debtor of certain chattel paper. Alternatively, plaintiff demands payment in full of the amount of the check it accepted from the debtor in consideration of the transfer. The facts. have been stipulated by the parties. At all times material herein plaintiff Beds and More, Inc., a Tennessee corporation, was ...
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MEMORANDUM AND ORDER AWARDING SANCTIONS AGAINST WILLIAM E. BAKER, ATTORNEY FOR DEBTOR-PLAINTIFF On January 17, 1984 I signed and filed findings of fact and conclusions of law and an order in favor of the Bank of America annuling the stay to validate a September 21, 1983 foreclosure of real property. In that order a separate hearing was set to consider sanctions against Robert Peterson and couns...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on the Complaint of four creditors — Rock River Production Credit Association, represented by Attorney Charles Beckman, Griffith Lumber and Grain Company, represented by Attorney Bradley Koch, International Multifoods, represented by Attorney Mary P. Gorman, and Heckert Farm Supply, represented by Attorney Leslie Lamping ...
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MEMORANDUM OPINION Debtors-in-possession commenced this adversary proceeding by filing a complaint on December 30, 1982 seeking to avoid a garnishment by creditor, Dealer Warehouse, Inc., of approximately $5,000.00 within ninety (90) days of debtors’ petitioning for relief under Chapter 11 of the Bankruptcy Reform Act of 1978. An amended complaint filed March 18, 1983 by debtors-in-posses...
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DECISION ON MOTION TO DISMISS PETITION On May 3, 1983, Wally Findlay Galleries (New York), Inc., filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. The debtor was continued in possession of its property and in operation of its business pursuant to sections 1107 and 1108 of the Bankruptcy Code. By order to show cause dated September 23, 1983, Wally Findlay Galleries I...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER In this adversary proceeding, the Cortland Savings Bank (hereinafter, the Bank) seeks to have declared nondischargeable a debt in the amount of $2,698.90, plus interest (hereainfter, the Debt) incurred by Christopher C. Evangelista (hereinafter, the Debtor). The Debt arose pursuant to a loan extended to the Debtor by the Bank. The...
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OPINION AND ORDER This matter is before the Court upon Plaintiff’s complaint to determine the dis-chargeability of certain debts under 11 U.S.C. § 523(a)(5). Considering the stipulation of facts and briefs of the parties, the Court concludes that the obligations in question are dischargeable under the Bankruptcy Code. FACTUAL BACKGROUND Plaintiff/Debtor, Joseph W. Plaugher, filed a voluntar...
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MEMORANDUM OPINION The debtors have filed herein a plan which provides that the debtors will pay to the trustee the sum of $125 per month for a period of 36 months. From this sum the trustee is to pay the expenses of administration, the sum of $33 upon an allowed secured claim of $1,000, the priority tax debts of $1,800 and the balance to unsecured creditors which is calculated to return a divi...
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OPINION The issue at bench is whether we should grant the husband/debtor’s former spouse an exception to discharge under 11 U.S.C. § 523(a)(1) and (a)(5). For the reasons stated herein we will deny the requested relief. The parties have expressly waived an evi-dentiary hearing on this matter, so the following evidence has been drawn from the parties’ stipulation and uncontested statement of f...
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MEMORANDUM An involuntary chapter 7 petition, 11 U.S. C.A. § 303 (1979), was filed against the debtor on July 14,1983. An order for relief was entered on August 22, 1983. Asserting *427 various constitutional privileges, the debtor has refused to disclose his assets and liabilities. 1 I The trustee’s complaint seeking redirection of the debtor’s mail, pursuant to 11 U.S.C.A. § 521 and §...
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OPINION An appeal has been taken in this matter from a declaratory judgment permitting the plaintiff-appellee, CALIFORNIA THRIFT AND LOAN ASSOCIATION (“Cal Thrift”), to reinstate a note secured by a deed of trust on real property belonging to this debtor’s estate. This note and trust deed were held by the defendant-appellant, DOWNEY SAVINGS AND LOAN ASSOCIATION (“Downey Savings”). The lower court...
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OPINION Debtor appeals from a judgment of the bankruptcy court denying him a discharge. The court determined that the debtor intentionally omitted valuable assets from his schedules. We reverse. BACKGROUND Debtor, an accountant, filed a voluntary Chapter 7 on March 6, 1981. In the accompanying schedules he did not specifically list as an asset his accountancy practice. On August 27, 1981 ...
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MEMORANDUM OPINION This adversary proceeding to determine dischargeability of a debt under § 523(a)(6) of the Bankruptcy Code came before the Court for trial on December 15, 1983. The parties, at the request of the Court, have briefed limited issues. It is undisputed that the Plaintiff filed, within the debtor’s bankruptcy case, a proof of claim for $12,875.14, which it characterized as, “unpaid ...
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MEMORANDUM OPINION This matter comes before the Court on the Objection of Citizen’s First National Bank of Princeton (“CFN”) to Confirmation of the Chapter 11 Reorganization Plan (the “Plan”) of the Debtor, S & W Enterprise (“S & W”). Attorneys John Isaacson of Princeton, Illinois, and Gregg Grimsley of Peoria, Illinois, represent CFN. Attorney Charles Beckman of Dixon, Illinois, represen...
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*894 ORDER Lien avoidance, a debtor’s remedy we had thought laid to rest in this district, is sought to be disinterred by the motion at hand. The short but troubled history of lien avoidance as an extraordinary supplement to a bankrupt debtor’s “fresh start” need not be recounted here. Suffice it to say that judicial decisions 1 and amendments to state law 2...
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ORDER DENYING PETITIONER’S “APPLICATION FOR ORDER HOLDING IN CONTEMPT RESPONDENTS FOR VIOLATION OF AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362” A prior chapter 11 reorganization case was filed by an entity identified with the petitioner on September 8, 1983. 1 See Matter of Marvin Jay Porter, d/b/a R & M Porter Farms, Inc., in proceedings for reorganization under chap...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DENYING PLAINTIFF’S COMPLAINT FOR A DECREE OF NONDISCHARGEABILITY The within complaint for a decree of non-dischargeability was filed by the plaintiff on December 1, 1983, some time after the debtors’ bankruptcy proceedings had been closed as a no-asset estate. Among the debts scheduled by the debtors in this proceeding was a se...
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OPINION The issue in the case at bench is whether a payment made to the defendant is avoidable pursuant to sections 522(g) and (h) and section 547 of the Bankruptcy Code (“the Code”). Since all the elements necessary to constitute a preference under section 547(b) have not been established, we conclude that the payment in question cannot be avoided by the debtor. The facts of the instant case can...
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DECISION Heard on December 22, 1983, on the motion of plaintiff Barick Furniture Corp. (Barick) to amend its motion for relief from the automatic stay. Barick contends that the purpose of the motion to amend is to *845correct a procedural defect, namely, that the first motion erroneously referred to Barick as a secured party rather than as a lessor. The debtors object, alleging prejudice, on the g...
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MEMORANDUM This motion for relief from the stay pursuant to 11 U.S.C.A. § 362(d)(1) (West 1979) was initiated against the debtor, Dixie-Shamrock Oil & Gas, Inc. (hereinafter *116 Dixie-Shamrock), by a creditor, AmSouth Bank N.A. (hereinafter AmSouth), and at the final hearing was consolidated with Dixie-Shamrock’s request to use Am-South’s cash collateral. Upon consideration ...
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MEMORANDUM OPINION AND ORDER The issue before the Court is the Debtor’s motion to reject the contract entered into by the Debtor and the United Mine Workers of America (“UMWA”). Maverick Mining Corporation, the Debt- or, has operated as a mining contractor for Harman Mining Company in Buchanan County, Virginia. Harman Mining, in addition to the Debtor, has a number of contracting mining compa...
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MEMORANDUM OPINION This matter came before the Court upon the filing of a motion to enlarge the period for filing complaints to determine the dis-chargeability of a debt and objections to discharge by Bradco Supply Corporation (Bradco), a creditor. After notice and a hearing at which the debtor objected to the relief sought by the motion, and after sub *411 mission of briefs ...
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MEMORANDUM OPINION AND DECISION FACTS The debtor in possession, Farmers Markets, Inc., filed its Chapter 11 petition on June 15, 1983. Concurrently, five other related entities, including Capitol City Farmers Markets, Inc., filed voluntary petitions for reorganization. On June 22, 1983 the court ordered joint administration of the six estates. At the time the petitions were file...
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PROPOSED CERTIFICATE This matter arises from the application of Malden Mills, Inc. (Malden Mills) for declaratory judgment concerning its liability for severance pay to its employees under Maine law, 26 Maine Revised Statutes Annotated (M.R.S.A.) § 625-B(2) (1980). The undisputed facts are as follows: Malden Mills is a textile manufacturer with manufacturing facilities in at least th...
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ORDER This matter came before the court on the plaintiffs’ complaint seeking a determination that the debt owed them by the debtor as evidenced by a state court judgment in the amount of $14,000.00 is a non-discharge-able debt pursuant to 11 U.S.C. 523(a)(2)(A) and/or 523(a)(6). The Scott County District Court judgment is based on a jury’s finding of actual fraud by the debtor in the sale...
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ORDER The Trustee, on August 25, 1983, filed a Motion seeking dismissal of the Debtors’ Confirmed Chapter 13 Plan for the reason that the Debtors have failed to maintain the monthly payments as required by the Plan. This Motion was joined in by Community National Bank and South Forks Shopping Center, Inc., two of the Debtors’ creditors. A hearing was held on September 21, 1983, at which time ...
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ORDER Before the Court is a Motion filed by the Debtor on January 17, 1983, seeking authority to (a) pay the IRS the Debtor’s North Dakota tax refund in the amount of $20,403.54 and (b) to pay over to First Bank of North Dakota — Jamestown (Bank) monies deposited into the Court by Ames Construction, Inc. in the amount of $27,795.87. Fisher Sand & Gravel Company (Fisher) and Dakota First T...
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ORDER (Expense Guidelines) These Chapter 11 eases are before the Court pursuant to the debtors’ submission of suggested guidelines and procedures for fees and expenses incurred by professionals and other persons entitled to compensation and reimbursement under 11 U.S.C. § 330 and Bankruptcy Rule 2016. These guidelines were first brought to the Court’s attention during a status conference held...
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MEMORANDUM OPINION The plaintiff, Barlows Inc. (“Barlows”), would have the Court direct that the United States of America, as represented by the Internal Revenue Service (“United States or IRS”), reduce its liens and claim for taxes in the amount of $102,544.89 as of August 16,1982 and, in addition, reduce any claimed interest on such taxes subsequent to that date. The issue, by agreement, has ...
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ORDER On December 6, 1983, plaintiff filed a complaint objecting to the defendant-debt- or’s Chapter 7 discharge based on §§ 727 and 523(a)(6) of the Bankruptcy Reform Act. The debtor had filed a Chapter 7 petition on August 8, 1983, and a § 341 hearing had been held on September 19, 1983. The deadline for filing a complaint objecting to discharge was listed as November 18, 1983. The deadline for ...
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MEMORANDUM AND ORDER ON DEBTORS’ MOTIONS TO DISMISS CASES PURSUANT TO 11 U.S.C. § 1307(b) The issue presented is whether Chapter 13 debtors may use Bankruptcy Code § 1307(b) to dismiss their case as of right in the face of a pending motion under § 1307(c) to convert their case to Chapter 7 liquidation. This Court holds that Chapter 13 debtors have an absolute right to dismiss their case pursuan...
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DECISION ON OBJECTIONS TO CONFIRMATION The holders of 44% of the common stock of Toy & Sports Warehouse, Inc. (“TSW”), one of the debtors in possession in this consolidated reorganization case under Chapter 11 of the Bankruptcy Code, have objected to the confirmation of the debtors’ second amended consolidated plan of reorganization. Under this plan of reorganization, all of the common sh...
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DECISION On July 5, 1983, debtor, Ronald Spinelli, d/b/a Tri-County Contracting, filed a petition under Chapter 7 of the Bankruptcy Reform Act of 1978 (“Code”). On September 7,1983, trustee, William S. Brown, commenced this adversary proceeding against Joseph Atteritano (“defendant”), lessor of the business premises previously occupied by debtor, to require the turnover under § 542 of a rent se...
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OPINION In responses to our order of September 16, 1983, granting American Bank and Trust Company of Pennsylvania (“the Bank”) relief from the automatic stay, the trustee, the Bank and the debtors’ lessor have each filed motions seeking to amend our order and to reconsider our opinion in *824support thereof. The Bank has also moved for an order holding the trustee in contempt for failing to compl...
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DECISION An adversary proceeding was commenced by Regency National Bank (“the Bank”) against the debtor, William R. Blatz, (“Blatz”) seeking to declare a debt nondis-chargeable in the amount of $51,600.00 together with accumulated interest. This obligation was evidenced by a promissory note dated June 30, 1982. The claim of nondis-chargeability is premised upon an alleged false financial ...
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MEMORANDUM OPINION AND ORDERS I. Introduction THIS MATTER comes before the Court pursuant to a Complaint filed by the Chapter 7 Trustee of the above-named debtors in which he seeks an order declaring dissolution and directing windup of a partnership, an order authorizing sale of partnership property free and clear of the interest of the partnership and general partners and fo...
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MEMORANDUM OPINION The debtor-in-possession (hereinafter debtor) has filed a motion for an order to show cause why the Attorney General and two assistant attorneys general for the State of Washington (hereinafter Washington) should not be held in contempt for violation of the automatic stay provision of 11 U.S.C. § 362(a). This court must determine whether Washington’s proceeding falls wi...
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MEMORANDUM OPINION The primary issues are: I. Lienholder’s right to § 506(b) attorney’s fees and expenses; and II. Trustee’s right to § 506(c) expenses. 1. LIENHOLDER’S RIGHT TO § 506(b) ATTORNEY’S FEES AND EXPENSES STATEMENT OF PROCEDURE Manufacturers Hanover Commercial Corporation (M-H) petitioned for authorization for payment of fees, costs and charges, pursuant to § 506...
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ORDER ON MOTION FOR RELIEF This matter is before the Court upon the Motion of MIRIAM SARNOFF and FLAGSHIP NATIONAL BANK OF MIAMI, as Co-Trustees under the WILL OF ALEX MANSION, DECEASED (“Sarnoff/Flagship”), pursuant to Bankruptcy Rule 4001 et seq., seeking relief from the automatic stay imposed by Section 362 of the Bankruptcy Code, to permit Movants to foreclose their liens against certain real...
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This action comes to the Court for a determination of the dischargeability of a debt due the Central National Bank of Mat-toon (the bank) by debtor Jack F. Gadberry pursuant to 11 U.S.C. § 523(a)(2)(B). (Count II of Complaint) * The Court encounters Dischargeability Complaints on false financial statements practically every week, but now directly faced with a specific challenge to its philosoph...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The issue presented herein is whether a business partnership existed between Noble Ashline (hereinafter, Debtor) and Edward Guthrie (hereinafter, Guthrie) during 1979 and 1980. On August 27, 1982, the Debtor and his spouse, Beverly Ashline, filed a joint petition pursuant to Chapter 13, Title 11, U.S.C. (hereinafter, the ...
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ORDER The Debtor in the above-entitled adversary proceeding filed his petition for reorganization under Chapter 11 of the Bankruptcy Code on April 6, 1983. On April 15, 1983, the Debtor commenced by complaint this adversary proceeding seeking relief from the automatic stay. The Debtor requested modification of the automatic stay to permit an action for divorce to continue in the District Court ...
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DECISION AND ORDER The Chapter 11 Debtor, Precision Colors, Inc., requests this Court to enjoin pursuant to 11 U.S.C. § 105 the defendant, the Third National Bank and Trust Co. [Bank], a creditor of Precision Colors, from taking actions to collect from the co-makers of one of debtor’s obligations. By agreement, the Court will limit this decision to only the issue of the jurisdiction of th...
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*818MEMORANDUM AND ORDER ON APPLICATIONS FOR ATTORNEY FEES AND EXPENSES OF SECURED CREDITOR AND TRUSTEE FOR TURNOVER OF ACCOUNTS RECEIVABLE COLLECTIONS The amount to be allowed Citicorp’s New York home office counsel and its Pittsburgh co-counsel for attorney’s fees and expenses rendered in connection with their client’s pre-petition and post-petition security interests against inventory and acco...
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MEMORANDUM This complaint was initiated by First National Bank of Dickson (hereinafter “First *433 National”) to obtain relief from the codebt- or stay imposed pursuant to 11 U.S.C.A. § 1301(a) (West 1979). 1 Upon consideration of the evidence presented at the hearing, stipulations, exhibits and the entire record, this court concludes that First National’s complaint should be GRANTED. The...
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ORDER ON OBJECTION TO CLAIMS THIS IS a Chapter 11 case commenced by Mandalay Shores Cooperative Housing Association (Debtor), a non-profit corporation and the matters under consideration are numerous objections to claims filed by the Debtor who challenges the claims filed by certain members of the Association. The Debtor seeks a disallowance of these claims on the grounds that these parti...
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OPINION The Chapter 13 debtor filed a complaint to avoid a lien on his automobile pursuant to 11 U.S.C. § 522(f)(2). The debtor characterized the lien as a non-possessory, non-purchase money lien on a tool of the trade. The creditor has disputed the tool of the trade characterization of the property to which the lien attaches. Because this court finds (1) that creditor’s lien is a non-pur...
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MEMORANDUM AND ORDERS RE: (1) MOTION TO REMAND; (2) MOTIONS TO DISSOLVE MEMORANDUM OF LIS PENDENS; (3) MOTION TO DISMISS AVERSARY PROCEEDING NO. 83-538 INSOFAR AS IT SEEKS TO ENJOIN ADVERSARY PROCEEDING NO. 83-598; (4) MOTION TO CONSOLIDATE ADVERSARY PROCEEDING NOS. 83-538 AND 83-598; AND (5) ORDER OF NOTICE. Before the Court are various motions relating to an action entitled Rosalind E. Gorin, as...
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ORDER FOR SUMMARY JUDGMENT This matter came on for hearing on the motion for summary judgment filed by the plaintiff, Victoria Grain Co. of Minneapolis. 1 The following memorandum decision is made pursuant to Bankruptcy Rule 7052. *4 FINDINGS OF FACT 1. The debtor filed a Chapter 11 petition on January 13, 1983. 2. On February 10, 1983, Janesville Elevat...
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MEMORANDUM OF DECISION This is an action to determine the dis-chargeability of specific debts owing to the estate of John Neilson. From the evidence submitted, the Court finds the following facts. The debtor, Joseph J. Simpson, was a friend of the deceased, John Malcolm Neilson, for over three years. On June 18, 1979, the debtor co-signed a personal demand note between Neilson and the Nash...
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MEMORANDUM — DECISION AND ORDER This proceeding comes before the Court pursuant to the Trustee’s motion filed on August 11,1983 objecting to Charles S. and Mary J. Bartoszewski’s (hereinafter, the Debtors) claimed exemption of a $1,200.00 monetary inheritance (hereinafter, the Property) received by the Debtors more than three months post petition. The parties hereto have submitted st...
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MEMORANDUM OPINIÓN In this adversary proceeding the Plaintiff-Debtor seeks to avoid a judgment lien and to recover payments of $1,600.00 as preferential transfers under 11 U.S.C. § 547(b). The trial was held in Raleigh, North Carolina on December 20, 1983. The parties submitted post-trial briefs. FACTS The Plaintiff, a North Carolina corporation engaged in the nursery and landsc...
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MEMORANDUM OPINION On November 8, 1983, the debtors filed a motion to dismiss their Chapter 13 proceeding, citing 11 U.S.C. Section 1307(b). Two of debtors’ creditors, Mr. and Mrs. Chapen, have objected to the dismissal and have filed a motion to convert the debtors’ Chapter 13 proceeding to a Chapter 7 liquidation proceeding pursuant to 11 U.S.C. Section 1307(c). This court is to determine w...
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*427DECISION GRANTING THE TRUSTEE’S MOTION TO COMPEL PRODUCTION The trustee seeks an order compelling the production of certain diary entries in the possession of the secured creditor, Citizens Trust Company, and Citizens objects on a variety of grounds. In 1977, Pacific Enterprises, Ltd., d/b/a Pacific Gem Co., granted Citizens a security interest in certain collateral, including accounts receiv...
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DECISION The debtor, A. Martin Drywall and Acoustics, Inc. (Drywall), and Hope Building Co., Inc. (Hope), entered into a contract wherein Drywall agreed to furnish materials, equipment, and labor for the installation of acoustic ceilings and metal-framed drywall at the Quonset Armory and Army Aviation Support Facility — Building No. 4, in North Kingstown, Rhode Island (Hope’s Exhibit A). Drywall f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the Court on the Complaint For Injunctive Relief and Petition For Certification Of Contempt filed by Richard L. Redenbaugh (hereinafter referred to as “Redenbaugh”), against the State’s Attorney of Macoupin County, Illinois, Edmond H. Rees (hereinafter referred to as “State’s Attorney”) and John L. Gahle (hereinafter referred to as ...
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*127 MEMORANDUM OPINION Introduction: The plaintiff, Frances Holmes, (plaintiff) filed her complaint to determine the non-dischargeability of a state court judgment which she had obtained in the principal amount of $58,000, plus costs, interest, and attorney’s fee against the debtor-defendant, Charles S. Kraus, (debtor) on May 27, 1983. The debtor filed his Chapter 7 petitio...
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*787 MEMORANDUM ON TRUSTEE’S MOTION TO REQUIRE DEBTOR TO SURRENDER BOOKS AND RECORDS At issue is the debtor’s duty to surrender to the trustee recorded information pertaining to property of the estate, .1:1 U.S.C.A. § 521(3) (1979). Asserting the constitutional privilege against self-incrimination, the debtor contends that compelling him to turn over all books and records relatin...
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MEMORANDUM OPINION AND ORDER DEBTOR’S OBJECTION TO CLAIM NO. 39 I. INTRODUCTION IntraWest Bank of Denver (formerly the First National Bank of Denver, (hereinafter “IntraWest” or “Bank”)) filed a proof of claim as an unsecured claimant in the personal bankruptcy of Elmer D. Werth (hereinafter “Werth”). This claim is denominated as Claim No. 39, and is for approximately $525,630.0...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 11 case commenced by a Petition for Relief filed by Herndon Executive Center, Inc. on October 24,1983. The Petition was not accompanied by a full set of Schedules, although it was accompanied by a list of creditors. The Schedules were ultimately filed on December 12, 1983. It appears from the record and from statement of counsel that the f...
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ORDER DENYING DEBTOR’S MOTION TO AMEND SCHEDULES THIS CAUSE came before the Court on the motion of the debtor, Edward J. Zibro, Jr., for leave to amend his schedules to include a creditor, William Dunne. On December 9, 1983, this Court, 35 B.R. 875, entered its order reopening the case and setting an evidentiary hearing. The evi-dentiary hearing was held on January 9, 1984, at which time the Cour...
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ORDER This case is before the Court on the Motion to Amend Judgment filed by the First Family Mortgage Company (“FFMC”). On August 18, 1983, the Court entered an Order sustaining the debtor’s objection to the proof of claim filed by FFMC, 32 B.R. 343. FFMC filed its timely motion to amend on August 24, 1983. The question before the *382 Court is whether it should reconsider t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case comes before the Court on Joyce E. Seidel’s (hereinafter referred to as “Mrs. Seidel”) Objection to Discharge of Debtor filed against the Debtor, Larry Edward Seidel (hereinafter referred to as “Mr. Seidel”). The issue in the case is whether Mr. Seidel’s agreement to pay certain bills, as set forth in their Judgment of Dissolution of Marri...
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ORDER PURSUANT TO CONFIRMATION HEARING This matter comes before the Court for the confirmation hearing of a liquidating plan filed by a major creditor, West Kentucky Production Credit Association, and on objections thereto filed by the debtors. By way of historical background, this proceeding was filed on January 7, 1983 on behalf of Tinsley and Groom, a partnership, and by the individuals and ...
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FINDINGS OF FACT The defendant entered into a contract to be bound by the terms and conditions of *81 the VISA cardholder agreement introduced into evidence. The agreement generally provides that the defendant could present his VISA cards to merchants and obtain credit, thereby enabling him to purchase goods or services without immediate payment to the merchant. The plaintiff...
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OPINION The debtors in this closed Chapter 7 case are moving to reopen this proceeding pursuant to 11 U.S.C. § 350(b) in order to have certain judgment liens on their real property cancelled. *116 The facts disclosed by the motion papers and the court’s records are few. On March 27, 1980 the Debtors, Michael and Lucille Schneider, filed a petition for relief under Chapt...
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OPINION In the case at bench the debtor objects to the proof of claim filed by the Federal National Mortgage Association (“FNMA”) and requests that the claim be reduced due to FNMA’s alleged violations of the Truth in Lending Act (“the Act”), 15 U.S.C. §§ 1601-1667e. For the reasons stated herein, we will deny the objection. The facts of the case are as follows:1 FNMA holds a mortgage on the debt...
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MEMORANDUM AND ORDER In this adversary proceeding the trustee, pursuant to 11 U.S.C. 1 § 542(a) 2 , is seeking an order compelling the South Carolina National Bank (SCN) to turn over to the trustee funds on deposit in the debtor’s bank accounts in SCN on the date that the debtor filed his petition for relief under Chapter 7 of the Bankruptcy Code (11 U.S.C. § 701, ...
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MEMORANDUM DECISION AND ORDER This case is to decide whether the debtor Ardith May Hirsch is entitled to claim as an exemption under WIS.STAT. § 815.20 her interest as a tenant in common of a house in which she had not resided for over two years prior to her filing in bankruptcy. At the trial on January 10, 1984, the plaintiff was represented by Attorney Thomas T. George and the defendant by Atto...
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MEMORANDUM DECISION AND ORDER Anne T. Wadsack, an attorney at law, was appointed guardian ad litem in a divorce proceeding between the debtor and her spouse involving contested custody of the couple’s child. Attorney Wadsack’s statutory duty was to “represent the [best] interests of the child ... as to custody, support and visitation.” 1 The Dane County Circuit Court...
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ORDER DENYING MOTION TO ALTER OR AMEND OR IN THE ALTERNATIVE FOR A NEW HEARING By the instant Motion to Alter or Amend or in the Alternative for New Hearing, Robert W. Hall, debtor herein, seeks to have this Court amend its Order Granting Motion to Modify Stay entered January 17, 1984, or in the alternative to rehear the motion. Although the instant motion is brought before the Court pursuant to F...
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MEMORANDUM OF DECISION Bowie Venture (“Bowie”), a Maryland general partnership, seeks relief from the stay of 11 U.S.C. § 362 so as to permit it to proceed in state court. Bowie claims that no landlord-tenant relationship exists between it and the debtor, and that Bowie should be permitted to retake the premises. While all parties agree that the tenant, whoever that may be is in defa...
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MEMORANDUM OPINION This matter comes before the Court on the Trustee’s objection to the Debtor’s claim of exemption, under 11 U.S.C.; § 522(d)(U)(E), of a vacant lot valued at not more than $27,000. Several years ago, the Debtor suffered a work-related injury, which left him confined to a wheelchair. Workman’s compensation and tort claims were settled, the debtor receiving sizeable lump sum p...
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OPINION The issue before us is whether the debt- or’s chapter 11 petition should be dismissed or converted to a chapter 7 proceeding and whether the debtor is entitled to take discovery before we reach the merits of the aforesaid motions. Under the circumstances of this case, we will allow the debtor to take discovery only for the limited purpose hereinafter set forth. Consequently, we wi...
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MEMORANDUM DECISION In the case at bar, the debtors as plaintiffs seek to avoid two mortgages given the defendant, Building Material Distributors, based on the alternative assertions that the mortgages are transfers avoidable as preferential transfers under 11 U.S.C. § 547(b) or that the mortgages are transfers avoidable as fraudulent transfers under 11 U.S.C. § 548. The trustee joined in the deb...
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ORDER GRANTING MOTION TO AVOID LIEN ON EXEMPT PROPERTY THIS CAUSE came on to be heard on December 14, 1983, upon the Debtor’s Mo *787 tion to Avoid Lien on Exempt Property. The property involved is the Debtor’s undivided one-half interest in real property legally described as follows: Lot 8, Block 2, RIVER VISTA, Plat Book 22, Page 38, Public Records of Broward County, Florida The lien cr...
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ORDER DENYING RELIEF FROM STAY AND GRANTING ADEQUATE PROTECTION THIS CAUSE came on to be heard upon a mortgagee’s Motion for Relief from the Automatic Stay and the Court having heard the testimony of witnesses and having examined the evidence presented, having observed the candor and demeanor of the witnesses, having considered the arguments of counsel, and being otherwise fully advised in the ...
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ORDER RE: MOTION FOR ORDER GRANTING RELIEF FROM AUTOMATIC STAY On August 17, 1983, Commercial Finance, Ltd., hereinafter “Commercial”, filed herein a Motion For Order Granting Relief From Automatic Stay, hereinafter “Motion”, *1000 seeking relief pursuant to 11 U.S.C. § 362(d) from the automatic stay under 11 U.S.C. § 362(a) to allow the continuation of that certain foreclosu...
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MEMORANDUM DECISION AND ORDER This matter is before the Court upon trustee’s objection to debtors’ claimed exemption of $500.00 on a motor vehicle under I.C. 11-605. The exemption was claimed by debtors by way of an amended schedule B-4 filed on November 14, 1983. Trustee objects on the ground that the amendment was filed more than 45 days after the filing of the petition for relief. The obje...
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MEMORANDUM DECISION AND ORDER Trustee of the debtor corporation has moved for “substantive consolidation.” Though raised under Bankruptcy Rule 9014, concerning “contested matters,” this motion is necessarily predicated upon Bankruptcy Rule 1015(b) which provides as follows: “If a joint petition or two or more petitions are pending in the same court by or against (1) a husband and wif...
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MEMORANDUM DECISION AND ORDER This matter is presently before the Court on cross-motions for summary judgment. The facts are not in dispute. On September 1, 1978, defendants sold certain real property to Bear Lake West, Inc. pursuant to a contract of sale. Bear Lake West executed a deed of trust naming defendants as beneficiaries, which instrument secured performance of the purchase agreement inc...
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ORDER OVERRULING OBJECTION TO CLAIMED EXEMPTION AND ORDER DECLARING CERTAIN PROPERTY NOT PROTECTED BY 11 U.S.C. § 522(f) The debtors filed a joint petition under Chapter 11 of the Bankruptcy Code on November 15, 1982. In Schedule B-4 annexed to the debtors’ petition, the debtor, Russell Thompson, claimed 210 pigs under six months of age, valued at $4,500, as exempt property under Sec...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on the complaint against debtor under 11 U.S.C. § 727(a)(2). The debtor, prior to the filing of his petition, operated an automative repair business, doing business as C & M Diesel and Truck Repair, continuing said business venture up to the filing for relief on July 26, 1982. Plaintiff alleges the debtor transferred, rem...
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OPINION LIEN AVOIDANCE IN A CHAPTER 13 CASE PARTNERSHIP ASSETS IN AN INDIVIDUAL PARTNER’S CHAPTER 13 PROCEEDING This case raises numerous issues as to the applicability and scope of 11 U.S.C. § 522(f). The Court finds it necessary to address only two of these issues. The facts generally are not in dispute. In October, 1976, Gerald and Gary Fisk, brothers involved in a farming operation, purchased...
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DECISION ON MOTION TO DISMISS PLAINTIFF’S NONDISCHARGE-ABILITY COMPLAINT The debtor, Daniel H. Overmyer, as a defendant in an adversary proceeding addressed to the dischargeability of the claim asserted by the trustee in bankruptcy of Hadar Leasing International Company, Inc. (“Hadar”), seeks to dismiss the second claim for relief contained in the plaintiff’s amended complaint. The debtor’s motio...
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MEMORANDUM OPINION AND ORDER This matter comes on to be heard on the plaintiff’s complaint to sell the debtor’s real property free and clear of liens under the provisions of 11 U.S.C. § 363. Two of the defendants, i.e. County of Pitt and Town of Ayden, resisted the sale. On December 15, 1981, an Order was entered directing the sale of the real property free and clear of the statutory liens of P...
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OPINION ON ORDER REQUIRING ACCOUNTING OPINION ON MOTION TO REVIEW CONVEYANCE OF REAL ESTATE TO SWANEE RIVER PECAN, INC. AND FOR OTHER RELIEF This Opinion and Order concern an accounting of trustee’s sale of debtor’s real property. The accounting is at the instance of the Court by an Order of December 29, 1983, and upon the motion filed by Conoco, Inc., to review the conveyances and t...
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MEMORANDUM AND ORDER GRANTING MOTION TO REOPEN CASE I. On March 8,1983, Anthony John Zablocki and Joanne Michelle Zablocki (debtors) filed a joint chapter 7 petition in this court. At that time, Anthony John Zablocki was in a Connecticut correctional institution and the petition was prepared by a Legal Assistance to Prisoners attorney. The debtors scheduled unsecured debts of $15,152.46 but t...
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DECISION AND ORDER Presently before the court is debtor’s complaint for violation of the automatic stay provisions of 11 U.S.C. § 362. Trial was held on November 16, 1983, with supporting briefs filed on November 29 and December 12, 1983. BACKGROUND FACTS On or about July 29, 1982, Defendant-Creditor, Mellon Mortgage, Inc., — East, [Mellon] filed a complaint against debtor in the Common Ple...
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OPINION The matter in dispute is whether the issuance of a certificate of title for a van by the Pennsylvania Department of Motor Vehicles (“the DMV”) without a notation of an encumbrance constitutes a failure to perfect the security interest although the creditor fully complied with the filing requirements of the Motor Vehicle Code. The issue arises through the debtor’s objection to a secured cre...
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ORDER ON COMPLAINT FOR INJUNCTIVE RELIEF THIS IS the next, and hopefully the last, round in the above-captioned adversary proceeding instituted by St. Petersburg Hotel Associates, Ltd. (Associates) by a Complaint which sought injunctive relief against Royal Trust Bank of St. Petersburg (Royal Trust), the Defendant named in the proceeding. Shortly after the commencement of the proceeding, A...
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MEMORANDUM OPINION AND ORDER This cause comes on to be heard upon the complaint to lift the automatic stay filed by RUTH SWAN, a/k/a BETTY MAE SWAN [Swan], ELIZABETH SEIMENIS [Seimen-is], ELAINE STRYSKI [Stryski] and LYNN JACOBSON [Jacobson], represented by MEYER H. WEINSTEIN, in the bankruptcy proceeding of GEORGE and DENA DERVOS, d/b/a ATHENAIKON HELLENIC AMERICAN SCHOOL, a/k/a ATHENAIK...
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MEMORANDUM OPINION The issue presented in this case is whether this court has jurisdiction to issue a restraining order to stop a foreclosure sale of the Chapter 13 debtor’s farm and home property. The foreclosing mortgagee asserts that the bankruptcy court lacks jurisdiction due to the Supreme Court’s decision in Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L....
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DECISION & ORDER This is a motion brought by the trustee to disallow the proof of claim in the amount of $25,000 filed by Robin Lazar (hereinafter “creditor”). The motion is predicated on the assertion that the proof of claim was filed substantially beyond the time permitted by the appropriate Bankruptcy Rules for the filing of proofs of claim by creditors. BACKGROUND In April 1...
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MEMORANDUM OPINION INTRODUCTION This Chapter 13 case requires the court to decide whether the Internal Revenue Service (IRS) violated the automatic stay by its post-confirmation retention of debtors’ tax refund for a tax year which began pre-petition and ended post-petition, and, if so, whether sovereign immunity shields the IRS from civil contempt liability and, if not, whether comp...
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MEMORANDUM OPINION INTRODUCTION This Chapter 13 case requires the court to decide whether the Internal Revenue Service (IRS) violated the automatic stay by its post-confirmation retention of debtors’ tax refund for a tax year which began and ended post-petition, and, if so, whether sovereign immunity shields the IRS from civil contempt liability, and, if not, whether compensatory and...
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MEMORANDUM OPINION FACTUAL AND PROCEDURAL BACKGROUND Debtor filed a petition for relief under Chapter 13 on April 23,1983. His schedules list a debt for child support due to the Office of Recovery Services (ORS) of the Department of Social Services of the State of Utah in the amount of $400.00. ORS received notice of debtor’s filing and, on June 8, 1983, filed a proof of claim for a $1,000.00...
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MEMORANDUM DECISION Plaintiff claims over $280,000 damages from the debtors’ infringement of plaintiff’s trademark and has opposed the debtors’ discharge with a barrage of charges. The matter was tried on December 6. I conclude that plaintiff’s claim is excepted from discharge, but that plaintiff has failed to establish a ground for denial of discharge. Plaintiff makes and markets expensive, ...
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FINDINGS AND CONCLUSIONS This cause came to be heard on August 1, 1983, upon the Complaint of the Plaintiff/Debtor, ALL TOOL RENTAL, INC., to Determine Nature, Extent or Validity of Lein. ALL TOOL filed a Voluntary Petition in Bankruptcy under Chapter Eleven on August 13, 1982. Subsequently, on June 1, 1983, ALL TOOL filed this adversary proceeding under Rule 701, now Rule 7001, et al., Bankruptc...
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AMENDED MEMORANDUM OF OPINION AND ORDER The above-styled adversary complaint is before the Court on Defendant’s Motion for Partial Summary Judgment. Barton & Ludwig, a General Partnership, a/k/a Highway 41 Associates (hereinafter “Debt- or-Partnership”) filed for relief under Chapter 11 by L.T. Ludwig, a general partner. Subsequent thereto, the Chapter 11 case was converted to a Chapter 7...
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ORDER DENYING MOTION TO LIFT STAY On December 21, 1983, a preliminary hearing on the Motion to Vacate Stay, filed *412 by Creditor, Honolulu Restaurant Supply Company, Inc., (hereafter Creditor) was held before the undersigned Judge. Present at the hearing were Michael A. Tongg, Esq., representing Creditor, and Emma S. Matsunaga, Esq., representing LFT, Ltd., the Debtor herein. At said hear...
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ORDER RE APPLICATION BY THE REALTY GROUP FOR COMPENSATION The Application by the Realty Group for Compensation filed herein on October 18, 1983, and Objections to said application by the Debtors filed on November 30, 1983, and by the Bank of Hawaii, filed on November 28, 1983, came on for hearing before the undersigned Judge on December 2, 1983. Present at the hearing were Nicholas C. Dre...
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ENTRY ON OBJECTION TO CONFIRMATION OF PLAN This matter comes before the Court on the objection of the United States of America to confirmation of the debtors’ proposed Chapter 13 plan. In their objection filed September 26, 1983, the United States of America, on behalf of the Small Business Administration (“SBA”), alleged that the debtors’ plan was not proposed in good faith and that it w...
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This dischargeability case is before the court to reconsider whether the prevailing plaintiff, Fountain Trust Company (Fountain) is entitled to attorney fees of $10,-355.00 for services in connection with the collection of its defaulted promissory note.1 The court is also asked to award $618.95 statutory costs and $1,256.58 discretionary costs. The debtor, Dr. Richard Kochell (Kochell), opposes th...
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FINDINGS AND CONCLUSIONS This matter was tried on October 19,1983 on the complaint of the Pan American Bank objecting to the dischargeability of Robert Lilienfeld’s debt to it. The debtor appeared pro se in these proceedings. The debt in question in this adversary arose from a Visa charge account which was opened on October 16,1981. The debt- *725or has never made a single payment on the account ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS an adversary proceeding and the matter under consideration is a Complaint filed by Beausejour Corporation (Beausej-our) against Offshore Development Corp. (Offshore), the Debtor in a Chapter 11 case presently pending before this Court. The Complaint sounds in two counts: Count I is an action for declaratory relief, pursua...
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MEMORANDUM DECISION This involuntary chapter 7 petition was tried on January 17. The facts are undisputed. The debtor’s principal debt is a note payable to the petitioning creditor. The debtor concedes that the note is in default and that he generally is not paying his debts as they become due, if that note is a debt which is still due. The debtor argues that the note was satisfied when a mor...
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ORDER In this chapter 11 proceeding, two creditors have filed motions seeking either dismissal, conversion or relief from the automatic stay. The debtor is a partnership in the business of manufacturing and distributing ice. The instant chapter 11 proceeding was filed on June 30,1983. In August, 1983 the debtor’s ice plant was damaged by a major fire, resulting in $36,000 of dam...
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ORDER This matter is before the court on the debtor’s objection to Proof of Claim # 742 filed by the Ohio Bureau of Workers’ Compensation (claimant) in the amount of $58,-394.14. A hearing was held on November 3, 1983 at which time the parties agreed to submit the matter on briefs. Rosanne H. Wirth of Wagner, Johnston & Falconer, Ltd. represented the debtor and David E. Stocker, Assi...
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DECISION AND ORDER ON MOTIONS TO DISMISS MANVILLE’S CHAPTER 11 PETITION • I. Background and Issues Presented Whether an industrial enterprise in the United States is highly successful is often gauged by its “membership” in what has come to be known as the “Fortune 500”. Having attained this measure of financial achievement, Johns-Manville Corp. and its affiliated companies (c...
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DECISION AND ORDER ON KEENE’S MOTION TO APPOINT A LEGAL REPRESENTATIVE FOR FUTURE CLAIMANTS I. Introduction and Issue Presented Keene Corp. has put before this Court a motion to appoint a legal representative for asbestos-exposed future claimants in the Manville reorganization case. It is abundantly clear that the Manville reorganization will have to be accountable to future ...
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SUPPLEMENTAL ORDER This Court entered its Memorandum and Order on November 15, 1983, finding the Plaintiff/Debtor individually liable for withheld but unpaid payroll taxes. 35 B.R. 811. The United States Department of the Treasury, as prevailing party, was directed to prepare a proposed judgment. The judgment as submitted made provision for interest on the unpaid taxes to which the Plaintiff/De...
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FINDING AS TO MOTION TO VACATE ORDER On November 4, 1980, Daniel M. Miller, filed a petition under Chapter 7 of the Bankruptcy Code. In due time, his former spouse, Debra J. Hund, commenced an adversary proceeding against him to determine the dischargeability of a debt. The debt in question stemmed from a separation agreement between the parties under the terms of which Mr. Miller agreed ...
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OPINION The issue in the case at bench is the construction to be given a provision in a loan contract between a debtor and a first mortgagee of the debtor’s realty which grants a partial release of the mortgage in a subdivision of realty when each constituent lot is sold. This contract must be resolved in light of a subsequent agreement among a second mortgagee, the first mortgagee and the debtor...
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OPINION The issue presented herein is whether a certain lease is part of the debtor’s estate pursuant to section 541(a) of the Bankruptcy Code (“the Code”). Because the lease in question had not been effectively terminated before the order for relief was entered in the instant case, we conclude that said lease is unexpired and, therefore, is property of the debtor’s estate. *407The facts of the in...
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MEMORANDUM AND ORDER Tri-Continental Leasing Corporation (“Tri-Continental”) filed motion for relief from stay to permit it to foreclose its claimed liens against an office building in Amarillo, Texas, and against personal property in the form of mining equipment located in another state. The First State Bank of Talihina, Oklahoma (“Bank”), a judgment creditor of the debtors, intervened and seeks...
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MEMORANDUM AND ORDER On October 12, 1982 the debtor filed for relief under chapter 11 of the Bankruptcy Code (Code). The instant matter comes before the court on the debtor’s three-pronged motion of August 9, 1983 for an injunction to restrain the First Vermont Bank and Trust Company (Bank), who is a creditor of the debtor, from violating the automatic stay of Code section 362(a); fo...
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MEMORANDUM AND ORDER I. BACKGROUND The plaintiff-debtor has commenced this adversary proceeding to determine the dischargeability of a debt owed to the State of Connecticut arising out of a 1981 child support obligation allegedly assigned to the State under the Aid To Families With Dependent Children Program (AFDC), Title *399 IV-D of the Social Security Act as amended. 1 The partie...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 11 case and the immediate matter under consideration is a Complaint filed by the Debtor, Gerald P. McGuire, who seeks pursuant to § 522(f)(1) to invalidate two judicial liens held by Manufacturers and Traders Trust Co. (Manufacturers). The liens total a sum of $12,749.62 plus interest accrued from the date of the entry ...
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ORDER ALLOWING DEBTOR’S PETITION TO REOPEN BANKRUPTCY ESTATE At East St. Louis, in said district, this matter having come before the Court pursuant to a petition to reopen bankruptcy estate and to amend debtor’s petition filed on behalf of the above-named debtor, by his attorney, Donald W. Urban, and a motion to dismiss and objection to debtor’s petition to reopen bankruptcy estate, filed...
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MEMORANDUM OPINION The likely effect of our opinion today will be to reduce by more than eighty per cent the number of discharge hearings in the Western District of Kentucky. Because we deal with a statute which apparently would deny that outcome, the result can obtain only with a lengthened reach of creative interpretation. To the extent that our exercise departs from what could be calle...
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OPINION This matter presents three (3) consolidated cases having common issues of law and fact. Objections to claimed exemptions have prompted the debtors in these Chapter 7 cases to challenge the validity of the “opt-out” provision to the Louisiana exemptions statute 1 under the Constitution of the United States. It is alleged that the Louisiana law violates the Supremacy Clause of Article...
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The debtors, Allen and Maryann Wander-lich filed their Chapter 13 petition on April 15, 1981. At the time of that filing, they owned their own home and Mr. Wanderlich, in addition, owned a business property on Sycamore Street in the City of Buffalo, New York. Mr. Wanderlich, for many years, had operated a television sales and service business at the Sycamore Street property. A secured cred...
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DECISION & ORDER Defendant, Emil Paul Klein, moves to dismiss the adversary proceeding commenced by deceased plaintiff, Joseph Me-lohn, d/b/a Marjo Enterprises. Leon Me-lohn and Alfons Melohn, co-executors of the estate of Joseph Melohn, cross-move to be substituted for decedent in the proceeding. FACTUAL CONTEXT On April 22, 1982, defendant filed a petition under Chapter 13 of ...
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ORDER These Chapter 11 cases are before the Court pursuant to the motion of the debtors-in-possession to establish the “basis for determining the cost of comparable services” under Section 330 of the Bankruptcy Code. This motion was inspired in large measure by comments made by this Court at a brief status hearing held not long after these cases were filed. At that time the Court sta...
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MEMORANDUM OPINION The debtors filed herein a motion for authorization of sale and distribution of proceeds free of secured interests. At the time of the filing of the petition in bankruptcy the debtors were the owners of a piece of real property consisting of 43 acres. This property was encumbered by a first mortgage held by FLB and a second mortgage held by Associates. During the course of ...
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MEMORANDUM OPINION This matter came before the court at the hearing on confirmation of the debtor’s chapter 13 plan held on December 1, 1983. Ford Motor Credit Company, through (“FMCC”) its attorney, John W. Weil, contended that the agreement entered into between the parties on November 11, 1982 was a lease agreement. The debtor, through his attorney, Magar E. Magar, contended that said agreeme...
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MEMORANDUM This matter is before the court on the defendant Point Landing Fuel Corporation’s (hereinafter “Point Landing”) motion for summary judgment. The trustee commenced this complaint to avoid and recover two preferential transfers from Point Landing.1 After consideration of the evidence presented, the briefs of the parties, exhibits, stipulations, affidavits and the entire record, this cour...
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MEMORANDUM OP FINDINGS OF FACT AND CONCLUSIONS OF LAW The Trustee’s Objection to Plan and to Claim of Exemption coming before the Court, the parties having submitted agreed stipulation of facts, the Debtors, Johnny M. Covey and Linda M. Covey, having given oral testimony, and the parties each having submitted Briefs, the Court does make the following Findings of Fact: 1. On the 28th ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on December 27, 1983, on the Defendants’ Motion to Amend Order. The Defendants request the Court to amend its Order of November 29, 1983, which granted the Plaintiffs’ Motion to Amend their Complaint. Plaintiffs’ original Complaint to Determine Dischargeability of a Debt was filed August 2, 1983. It alleged that Defendants obtained ...
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ORDER ALLOWING OBJECTION TO CHAPTER 13 PLAN At East St. Louis, in said district, this matter having come before the Court pursuant to an objection to the debtor’s Chapter 13 Plan, filed on behalf of Southern Illinois University at Carbondale (SIU-C), by its attorney, Shari R. Rhode; oral argument having been presented by the respective parties’ counsel, John M. Goodwin, Jr., representing the de...
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MEMORANDUM OPINION Plaintiff, Wieboldt Stores, Inc., filed this two-count complaint seeking injunctive and monetary relief against defendants, Duane V. Haas, Christopher A. Jansen, a/k/a Christopher Jankowski, d/b/a A.J. Christopher & Co., Arthur C. Reck, and Frank H. Gildner, Jr. In Count I Plaintiff charged that the Defendants, while engaged in a conspiracy and alleged scheme to defraud, violat...
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ORDER At East St. Louis, in said district, this matter having come before the Court pursuant to a complaint for injunctive relief filed on behalf of the debtors, by their attorney, Robert F. Quinn, and a motion for summary judgment filed on behalf of Country Mutual Insurance Company (Country Mutual) by its attorney, John P. Schwulst; the respective parties’ counsel having filed briefs; after revi...
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ORDER At East St. Louis, in said district, this matter having come before the Court pursuant to a motion to terminate the automatic stay filed on behalf of Sears, Roebuck & Company (Sears), by its attorney, R. Michael Kimmel, and a motion for avoidance of nonpossessory, nonpurchase money security interest, filed on behalf of the debtors, by their attorney, Benjamin J. Vasta, briefs having been fi...
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ORDER At Alton, in said district, this matter having come before the Court pursuant to a complaint to avoid a preferential transfer filed by the Trustee and an answer to complaint filed on behalf of the defendant by its attorney, Clifford C. Emons; briefs having been filed by the respective counsel; after reviewing the briefs and researching the law, the Court states the facts as stipulated by the...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This Chapter 7 adversary proceeding is before the Court pursuant to a motion filed by U.S. Billiards Company, Inc. (hereafter referred to as “U.S.B.”) for reclamation and relief from the stay pursuant to 11 U.S.C. § 546(c) and § 362(d). The motion is opposed by BancOhio National Bank, which U.S.B. concedes holds a security interest in the after-acq...
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OPINION The issue at bench is whether the plaintiff corporation, a builder, may recover in a suit against the debtor’s landlord either on the theory of an express contract or a quasi-contract. For the reasons stated herein, we hold that, under the facts of this case, it may not. The facts of this case are as follows:1 B.Z. Corporation (“the debtor”) leased a certain business property from Barry S...
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OPINION On October 21, 1983, this court issued an order requesting the parties in interest to assist the court in its determination of whether the debtor’s Chapter 13 plan should be confirmed or whether the objections to confirmation should be sustained. Despite several previous hearings and written briefs, the evidentiary record which the parties had relied upon to support their legal co...
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MEMORANDUM OF OPINION AND ORDER The Trustee for Fulton Air Service, Inc., filed the above-styled adversary complaint seeking a declaratory judgment regarding which of the Defendants have valid liens against the proceeds from the sale of the Debtor’s lease of space at Fulton County Charlie Brown Airport. The matter is presently before the Court on the Trustee’s and the State of Georgia’s cross-moti...
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MEMORANDUM STATEMENT OF FACTS: In these two adversary proceedings, the Chapter XI and Chapter 11 debtor nursing homes (“debtors” or “nursing homes”) seek to enjoin the Commonwealth of Massachusetts Rate Setting Commission (“Commission”) from making deductions because of the debtors’ “negative equity” for numerous years prior to 1979. After evidentiary hearing on the debtors’ Motion for Prelim...
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ORDER FOR SUMMARY JUDGMENT AND JUDGMENT. This matter came on for hearing on the motion of Norwest Bank Minneapolis, N.A. (“Norwest Minneapolis”) for summary judgment against the plaintiff on its amended complaint. Hendrik De Jong appeared on behalf of Norwest Minneapolis; James A. Rubenstein and Steven I. Winer appeared on behalf of the plaintiff, Briggs Transportation Company (“Briggs”) and Je...
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DECISION AND ORDER I This proceeding concerns the third of four causes of action appearing in a complaint served by the plaintiff, Ford Motor Credit Company (“Ford”), against the debt- or, John D. Territo, on October 8, 1982. The other causes of action have been disposed of in separate proceedings. In this cause of action Ford alleges that money received by the debtor from the settlement of a sta...
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DECISION AND ORDER PRELIMINARY PROCEDURE This matter is before the court upon a complaint filed 18 February 1983, as amended on 29 March 1983, by Circle Management Services, Inc. (CMS) against Phillip Lawrence Wright, (the Debtor), et al.; the Answer filed by Debtor on 18 May 1983; the Case record and the evidence as stipulated and incorporated in a pretrial order entered 12 September 1983 and ad...
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*375 ORDER RULING UPON APPLICATION FOR APPOINTMENT OF COUNSEL NUNC PRO TUNC This case is before the Court to consider an application filed October 11, 1983 by the trustee administering this ease. The applicant seeks an order of this Court appointing the applicant “ * * * as counsel nunc pro tunc for the trustee under a general retainer and for such other and further or...
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The debtor in possession seeks to avoid two prepetition transfers to defendant pursuant to 11 U.S.C.A. § 547(b) (1979). Defendant contends that subsequent to the alleged preferential transfers it gave to the debtor new value not secured by an otherwise unavoidable security interest and on account of which the debtor did not make an otherwise unavoidable transfer to defendant. 11 U.S.C.A. § 547(c)...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW This matter was heard on November 8, 1983, and December 6,1983, upon the objections of the trustee and David Leonard Associates, P.C., a creditor, to Claim No. 3 filed by Loyce B. Franklin in the amount of $250,000.00. The first objection alleges that the claim was not timely filed. A preliminary discussion, however, disclosed that the last day for filing c...
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MEMORANDUM AND ORDER FACTS On January 4,1983, the debtor (Johnston) filed for relief under chapter 13 of the Bankruptcy Code (Code). The petition was not filed in good faith but merely to avoid foreclosure proceedings. On May 20,1983, Richard V. Perrott (Per-rott) obtained relief from the stay of Code section 362(a) in order, as mortgagee of Johnston as mortgagor, to foreclose o...
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MEMORANDUM OPINION AND ORDER UPON TRUSTEE’S OBJECTION TO THE CLAIM OF UNITED STATES DEPARTMENT OF INTERIOR, CLAIM # 134 The Department of Interior filed Claim # 134 herein in the sum of $69,350.00 representing civil penalties assessed under the Surface Mining Control and Reclamation Act of 1977 pursuant to 30 U.S.C. § 1268 and implementing regulations 30 C.F.R., part 723. The claim is asserted as ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on for trial on November 22, 1983, December 6, 1983 and December 20,1983, upon the Complaint of CONTROL POWER SYSTEMS, INC. (hereinafter CPS), against the Debtor, GLENN RICHARD REDDINGTON (hereinafter REDDINGTON), objecting to the dischargeability of the Plaintiff’s debt pursuant to various sections of 11 U.S.C. § 523, as well as objec...
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OPINION AND ORDER This case is on remand from the district court for further proceedings consistent with its opinion of June 24, 1983. The remand was specifically for the purpose of having a court familiar with the claims made in this and similar bankruptcy cases review the manner in which the firm of William L. Needier & Associates, Ltd. conducted its representation of the plaintiff, T.C...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT GRANTING THE WITHIN COMPLAINT AS TO THE DEFENDANT CARL GENE MOORE AND ACCORDINGLY ENTERING NONDISCHARGEABLE JUDGMENT AGAINST HIM AND FOR PLAINTIFF IN THE SUM OF $17,906.90 The plaintiff requests in this action that the defendants’ indebtedness to it not be discharged in bankruptcy because of the allegedly willful and malic...
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MEMORANDUM This matter is before the court on the objection of Springfield Production Credit Association (hereinafter “PCA”) to the proposed rate of interest to be paid on its claim under the debtors Carlton and Pamela J. Owens’ Chapter 13 plan. 1 Upon considera *662 tion of the evidence presented at the hearing, stipulations, exhibits, briefs of the parties and the entire record, this cour...
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Memorandum Opinion On Motion To Dismiss On September 24, 1983, Continental Airlines Corporation and the above-related entities filed a voluntary Chapter 11 proceeding under Title 11 of the United States Code. On September 27, 1983, Continental Air Lines, Inc., and Texas International Airlines, Inc. filed a joint motion to reject their Collective Bargaining Agreements and other employee-re...
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The debtors, Ralph and Mary Brandstaet-ter, claimed nonstatutory exemptions for personal injury causes of action on which they had not filed suit prior to bankruptcy. Their bankruptcy trustee objected to the exemptions claiming that Wisconsin provided neither statutory nor common law exemptions for personal injury claims and that personal injury claims passed to the debtors’ bankruptcy estate und...
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OPINION Appellants appeal from a restraining order issued by the bankruptcy judge. We hold that Rule 65, Fed.R.Civ.Pro. (incorporated into Bankruptcy Rule 765) is fully applicable and governs the issuance of restraining orders and injunctions, and reverse the order appealed from. FACTS The trustee of the debtors filed a complaint against the appellants and others on April 23,1982. On April 26, 19...
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OPINION This controversy involves an objection by the debtor to a claim filed by two creditors of the debtor. In November of 1979, Thano Masters opened a restaurant in Ann Arbor, Michigan named Thano’s Company, a Michigan corporation, of which Masters was the sole stockholder. The corporation was in financial difficulty from the day it opened. The corporation had financed the purchase of substant...
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MEMORANDUM DECISION AND ORDER The plaintiffs in this matter, the Official Unsecured Noteholders’ Committee and some members thereof, the Northern Trust Company and Seattle-First National Bank, brought their complaint to avoid preferential transfers pursuant to 11 U.S.C. § 547. The defendants subsequently moved to dismiss the complaint on several grounds challenging plaintiffs’ standing to...
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MEMORANDUM OPINION The matter presently before the Court is a petition for relief from the automatic stay, wherein petitioners seek payment of commissions earned as disclosed brokers in complex equipment leasing transactions from funds which are currently being held in escrow pursuant to pre-petition escrow agreements between the parties. The parties have agreed that there is no fact...
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MEMORANDUM This matter is before the court on the creditor First American National Bank of Nashville’s (hereinafter “First American”) objection to the confirmation of the debtors Oscar and Mary E. Litton’s proposed Chapter 13 plan on the basis that the plan is not feasible under 11 U.S.C.A. § 1325(a)(6) (West 1979). 1 Upon consideration of the evidence presented at the hearing, stipulations, ...
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MEMORANDUM AND ORDER The Official Unsecured Creditors Committee and Tascosa National Bank, a creditor, each challenged an “agreed order” for use of cash collateral and adequate protection which had been entered by this Court on September 7, 1983. Under that order the debtors had effectively recognized the security interest of InterPirst Bank Odessa, N.A. (“Bank”) in properties owned by on...
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MEMORANDUM DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter is before the Court pursuant to 11 U.S.C. 505(a)(1) for decision after trial. Plaintiff debtor Robert R. Myers seeks a determination that he is not personally liable under 26 U.S.C. 6672(a) for tax liabilities not paid by Airport Restaurant, Inc. I find the facts to be as follows. I. Plaintiff and his wife, Betty Jean...
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ORDER DENYING MOTION TO EXTEND TIME This matter is before the court on the motion of the First National Bank of Minneapolis to extend the time in which it may file a complaint to determine the discharge-ability of the debtor’s debt to the bank. No notice of the motion was given to the debt- or. However, since the disposition of the motion is clearly compelled by the Bankruptcy Rules and is adve...
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MEMORANDUM OPINION This matter came before the Court upon the complaint of the debtor in possession, American Gypsum Company, to avoid a preferential transfer allegedly made to Grover Trucking Company. The transfers which the debtor seeks to recover are three checks delivered prior to the filing of the petition, two shipments of wallboard transferred to Grover pre-petition, and six shipments of...
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DECISION & ORDER Creditor, Virgilio Moreno (“creditor”), commenced an adversary proceeding against the debtor, Lee Schwartz (“debt- or”), on August 8, 1983 seeking a determination that the debt owed to him was non-dischargeable under 11 U.S.C. § 523(a)(2)(A). Creditor brings this motion for summary judgment under 11 U.S.C. §§ 523(aX2)(A), 523(a)(4) and 523(a)(6) pursuant to Bankruptcy Rul...
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MEMORANDUM AND ORDER On June 7, 1982, the debtors filed a petition for relief under chapter 13 of the Bankruptcy Code (Code). On April 29, 1983, the plaintiffs, who did not file a proof of claim in this proceeding, filed a complaint for relief from the automatic stay of Code section 362(a) or in the alternative for adequate protection under Code section 361. A final hearing on the complai...
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MEMORANDUM DECISION This is a dischargeability suit under 11 U.S.C. § 523(a)(5) wherein the divorced wife seeks to enforce payment by the debt- or, her former husband, of attorneys’ fees in the sum of $15,800 plus interest. I hold the obligation to be nondischargeable. The case illustrates how economically destructive dissolution proceedings can be. Given the emotional overlay, the costs of s...
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OPINION The Bank of America appeals from an order holding the bank in contempt for violation of the automatic stay. The question presented is, may the bank, a creditor of the debtor, defer withdrawal of funds from debtor’s account without violating the 11 U.S.C. Section 362 stay? We hold that the bank may defer access to the account and accordingly reverse. I. FACTS On July 9, 1982, the debtor, Wi...
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MEMORANDUM AND ORDER This matter came to be heard on defendant, Equico Lessors, Inc.’s (Equico) motion to dismiss the adversary complaint of plaintiff-debtor, Abco Metal Corporation (Abco). The Court having carefully considered the pleadings and memoranda filed herein as well as the pleadings and Memorandum Opinion and Order entered in the District Court proceeding entitled Abco Met...
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Findings of Fact, Conclusions of Law, and ORDERS re Application to Reject Ex-ecutory Contracts and Related Matters, with Memorandum The matter before the Court is an Application to Reject Executory Contracts, filed by The Rath Packing Company, Debtor-in-Possession (Rath), seeking to reject “certain collective bargaining agreements” between Rath, the United Food & Commercial Workers In...
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MEMORANDUM OF DECISION Bruce F. Bradley, a Chapter 13 debtor, objects to the claims of the State of Maryland Income Tax Division for taxes due for the 1978 and 1981 tax years. The claim for the 1981 taxes was untimely filed, and the debtor’s objection to that claim will be sustained. The debtor objects to a portion of the tax claim for 1978 because $145.20 of that claim is based upon...
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*60 MEMORANDUM OPINION The Plaintiff, Interim Trustee, filed a complaint on September 15, 1982, alleging that the transfer by the Debtor, Lebus-Al-brecht Lumber Co., d/b/a Riverside Lumber Co. (RIVERSIDE), of certain inventory items back to the Defendant, Minot Builders Supply Association (MINOT) was a preference under section 547 of the Code. It is further alleged that Minot’s i...
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MEMORANDUM AND ORDER The United States of America, Small Business Administration, filed motion for modification of stay to permit it to foreclose its claimed liens against the debtors’ *579 ranch. The following summary constitutes findings of fact and conclusions of law after nonjury trial. Robert Dale Price and wife, Martha Ann Price, filed petition for order for relief...
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DECISION ON SUMMARY JUDGMENT AND ORDER This proceeding was commenced to determine the dischargeability of an obligation of the defendant debtor under a divorce judgment which by its terms purported to make the obligation nondischargeable. The issue is presently before the court on the defendant’s motion for summary judgment. The plaintiff has been represented by attorney Edward W.J. Falkner of ...
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DECISION This case is before the Court upon a stipulation of the parties who have agreed that there are no factual issues in dispute. What is involved is for this Court to determine whether or not medical expenses incurred for pregnancy and hospital confinement are dischargeable or are in the nature of support and are therefore excepted from discharge under § 523(a)(5) of the Bankruptcy Code.1 FA...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE: CO-COMMISSIONERS’ COMPENSATION There are two issues before this Court: (1) Whether State appointed co-commissioners should be compensated for their unsuccessful pre-petition efforts to sell a par*653cel of land pursuant to a decree of foreclosure. (2) If the co-commissioners are deemed entitled to compensation, what should be the source and amoun...
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OPINION The trustee filed an application to compromise the three (3) above captioned adversary proceedings on February 16, 1988. Objections to the proposed compromise were timely filed by Wheless Drilling Company, Newpark Drilling Fluids, Inc. and Aztec Corporation, all creditors of Emerald Oil Company, the debtor herein. Another timely objection was filed by Explorer Drilling Company, Inc., al...
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MEMORANDUM OF DECISION This case involves the determination of what happens when a Chapter 7 debtor and another individual own real property as joint tenants 1 at the time of filing of the petition, and the co-owner dies during the administration of the case. The converse of this case involving the death of the debtor is the subject of In re Lambert, 34 B.R. 41, ¶ 69...
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MEMORANDUM OPINION This matter came before the Court upon the hearing of the objection of Grants State Bank (Bank) to the debtor’s claimed exemption of $12,278.00 which represents the value of the debtor’s interest in the Gulf Savings Stock Bonus Plan. The Bank objected on the grounds that the exemption did not qualify under 11 U.S.C. § 522(d)(10), and that the stock or its value should be turn...
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MEMORANDUM AND DECISION The Chapter XI debtor-in-possession in this Act case has filed an objection to the claim of First Federal Savings and Loan Association of Rochester, hereinafter referred to as “First Federal”. The debtor, Whitdel Properties, Ltd., hereinafter referred to as “Whitdel” and First Federal have stipulated the facts. The facts follow. There are four separate corporations owned by...
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ORDER The above-named Debtors filed for relief under Chapter 7 of the Bankruptcy Code on May 3, 1983. The Debtors filed their schedules with the Court on June 15, 1983, and claimed as exempt property proceeds of a Payment-In-Kind Contract. Subsequent amendments to the Debtors’ claim of exemptions have not changed the Debtors’ claim to the proceeds of the Payment-In-Kind Contract. An objection t...
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ORDER ON OBJECTION TO CLAIM The matter before the Court is the debt- or’s objection to the claim of Haffelt Bros. Custom Carpet, Inc. For the reasons set out below, the Court finds that Haffelt Bros, has not provided sufficient documentation of its secured status and must, therefore, be classified as unsecured. The underlying claim of Haffelt Bros, arose from a contract obligating it...
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MEMORANDUM Plaintiff, United American Financial Corporation (UAFC), seeks recovery on a note in the principal amount of $75,000.00 plus interest. Defendant, Financial Interstate Service Corporation, formerly United American Service Corporation, denies liability.1 The facts have been stipulated.2 On August 13, 1981, United American Service Corporation (UASC) executed a note in the amount of $75,00...
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MEMORANDUM OPINION This case came on before this Court upon the removal by Herbert Weisberger, a creditor of the debtor, to this Court of a chancery suit between himself and the defendants pending in the Circuit Court of Henri-co County, Virginia. Subsequently, Robert E. Hyman, the trustee in bankruptcy for Roscoe M. Porter, Jr., was substituted as the plaintiff in this action and amended...
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*644 FINDINGS AND CONCLUSIONS This matter was tried on the complaint of the creditors Gundolf Koppey and Carol 0. Koppey objecting to the discharge of the debtors and to the dischargeability of one debt. Plaintiffs object to the debtors’ discharge on the basis that they failed to keep sufficient records, that they are unable to account for losses, that they omitted from their schedules severa...
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MEMORANDUM OPINION ON APPLICATION FOR ATTORNEY’S FEES STATEMENT OF THE CASE Before the Court is the attorney fee application of L. Zack Dozier, counsel for Debtor in this Chapter 13 case. The application was considered at the confirmation hearing on Debtor’s plan, and the Court requested that Mr. Dozier file a time itemization with the Court in support of the application. The itemiza...
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MEMORANDUM OPINION On December 5, 1983, this Court, acting on its own under U.S.C. §§ 305 and 707, ordered M. Ibrahim Khan to show cause why his two Chapter 7 petitions should not be dismissed. The Court acted unilaterally to protect its jurisdictional integrity when approached by the same party whose Chapter 11 proceeding had been dismissed on November 10 on the grounds of abuse of proce...
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On July 20, 1983 this Court signed an Order reopening the debtors’ chapter 7 case to allow them to file an action to avoid a judicial lien. The debtors’ case had been closed on January 8, 1982. The debtors filed a motion on October 13, 1983 seeking an order voiding the judicial lien of Bankers Trust New York Corporation pursuant to 11 U.S.C. § 522(f). The lien in question arose from a judgment at...
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MEMORANDUM DECISION AND ORDER Phillip D. Armstrong, Trustee of the estates of Larry Alexander and John and Norma Alexander, requests that his interest in various of the Debtors’ personal property be found superior to that of the Defendant, Farmers Home Administration. The Debtors filed petitions for relief under Chapter 7 of the Bankruptcy Code and were discharged in their bankruptcy proceedings o...
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MEMORANDUM DECISION AND ORDER Phillip D. Armstrong, Trustee of the estates of Larry Alexander and John and Norma Alexander, requests that the Court determine that his interest in two Massey-Ferguson tractors, which were owned by the Debtors at the time they filed for bankruptcy relief, is superior to those of the Defendants, Johnnie’s Motor Sales, Inc. and General Motors Acceptance Corporation....
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MEMORANDUM DECISION AND ORDER Complaint filed by the Plaintiff in the above-entitled adversary proceeding seeks to have a claim, resulting from legal services given to the Debtor’s former wife, determined non-dischargeable under 11 U.S.C. § 523(a)(5). Trial in this matter was held before the Honorable Harold O. Bullís on December 21, 1982, in Bismarck, North Dakota. The parties have ...
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MEMORANDUM DECISION AND ORDER This matter involves applications for allowance of interim fees and expenses for attorneys and professional persons em *319 ployed pursuant to 11 U.S.C. § 327. The same standards are applicable to the debt- or-in-possession by 11 U.S.C. § 1107. Our discussion proceeds in light of the recent decision of the Court of Appeals for the Tenth Circuit, ...
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ORDER DENYING MOTION TO REOPEN CASE The debtor received a discharge on May 17, 1983 in this chapter 7 case which was closed on October 26, 1983. On December 8, 1983, the debtor moved under 11 U.S.C. § 350(b) that the case be reopened to void a State court judgment for $2,725 against the debtor upon a December 29, 1982, pre-bankruptcy divorce judgment confirming a marital settlement agreement....
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OPINION Presently before this Court is an application for a determination of control submitted by the attorney for the Chapter 11 debtor, Delk Road Associates, Ltd., a Georgia limited partnership. The issue requires a determination by this Court of stock ownership and, consequently, the voting rights of the general partner International Financial Development Corporation (“IFDC”) which holds a majo...
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MEMORANDUM OPINION AND ORDER This cause comes on to be heard upon the motion to transfer, pursuant to Rule 2.31 of the United States District Court for the Northern District of Illinois, the Chapter 11 proceeding of Michael Ziemba, Debtor, represented by Leonard Gesas, to the calendar of the Honorable Thomas James, Bankruptcy Judge, filed by V & J. Jares, represented by Jeffrey A. Kripton. The co...
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MEMORANDUM OPINION This matter has come before the Court, on stipulated facts, for the sole determination of the res judicata effect of the defendant-debtor’s stipulation, in state court, to a finding of willful and malicious conduct on his part. Plaintiff contends that that stipulation binds the debtor in this Court and prevents the debtor from objecting to a finding of non-dischargeability of de...
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MEMORANDUM The questions presented are: (1) whether negligent conduct is “willful” for purposes of § 523(a)(6) analysis; and (2) whether concepts of vicarious or imputed liability can support a claim of nondischargeability under 11 U.S.C.A. § 523(a)(6) where the debtor/defendant is the promoter of a rock concert and the creditor/plaintiff is the next of kin of a pedestrian killed by a dru...
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MEMORANDUM OPINION This matter came before the Court on the objection by Elmer A. Hughes and Marilyn T. Hughes to an exemption claimed by the debtors of a forty-year-old Chesapeake deadrise workboat valued in the amount of $1,500.00 and claimed exempt under Va. Code § 34-26. That section provides an exemption to an oysterman or fisherman of his boat and tackle not exceeding $1,500.00 in value...
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MEMORANDUM DECISION AND ORDER DISALLOWING CLAIM This matter, which can best be described as the trustee’s objection to the secured claim of Donald Miller, comes before the court upon stipulated facts. The parties have also agreed that the issues before the court are: (1) whether Donald Miller is a secured creditor whose lien must be satisfied from proceeds of a sale of assets of the debto...
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OPINION The bankruptcy court ordered appellant to turn over to the trustee a portion of the money paid for preparation of their bankruptcy petitions and schedules. We affirm in part and reverse in part. BACKGROUND David M. Goudie, who does business as Goudie & Associates, is a lay person who prepared the bankruptcy petitions, statements of affairs, and schedules for both debtors...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This Cause having come on to be heard upon a Complaint To Avoid Fraudulent Transfer and the Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law: A 'final judgment in...
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MEMORANDUM DECISION The trustee seeks avoidance as a preference of certain’ transfers to two defendants. The matter was tried on December 20. The defendant, Viking Steel Products, Inc., did not respond. A separate judgment by default will be entered against that defendant. The defendant, Coastal Wholesale, Inc., has answered. (C.P. No. 4). It regularly sold pool supplies to the ...
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MEMORANDUM DECISION AND ORDER On November 18, 1983, the Fort Shafter Federal Credit Union, hereafter “Credit Union”, filed a Notice of Hearing; Application for Order Directing Eric and Audrey Lee to Deliver Automobile Transfer Documents to Beverly Ann Pearson and Fort Shafter Federal Credit Union, or, in the Alternative, for Order Directing Department of Motor Vehicle Registration, City and County...
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MEMORANDUM This matter is before the Court upon the objection of Helvic Realty, Inc. (lessor) to the Chapter 7 trustee’s application to assign an unexpired commercial lease. A brief review of the facts as they appear from the record is necessary here. The debtor corporation filed a voluntary Chapter 7 bankruptcy petition on June 29, 1983. The petition was signed by Alina *275 ...
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DECISION AFTER TRIAL On September 28, 1981, the plaintiff-carriers (hereinafter collectively “Maersk”) commenced this adversary proceeding against Black & Geddes, Inc. (“B & G”), the debtor, and Chester B. Salomon, as Trustee of B & G (the “Trustee”), seeking to impose a constructive trust in the amount of $38,-265.21 on funds in the hands of the Trustee. 1 On October 28, 1981 ...
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The issue for decision is whether the Bankruptcy Court having appointed a com- *289 xnittee of unsecured creditors may enlarge that committee, notwithstanding that such enlargement is unnecessary to ensure adequate representation of creditors. The members of the committee of unsecured creditors appointed by this Court, pursuant to 11 U.S.C. § 1102(a) and § 1102(b), have moved ...
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DECISION AND ORDER The issue before the court arises out of cross-motions, one of which seeks a change of venue from this court to the bankruptcy court of the Central District of California. The other motion seeks a remand of the within proceeding from this court to the District Court of the Eastern District of New York where the action was originally commenced. I FACTS On April 24, 1983 ...
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ORDER ALLOWING DISCHARGE UNDER 11 U.S.C. SECTION 1328(b) This matter is before the Court upon a motion for a “hardship discharge” under 11 U.S.C. § 1328(b) filed on behalf of a deceased chapter 13 debtor. A hearing was held in Raleigh, North Carolina on December 12, 1983. There are no disputed facts. The Debtor, Patricia Johnson Bond, filed her chapter 13 petition on June 5, 1981. The Debto...
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MEMORANDUM AND ORDER This matter is before the Court upon the Trustee’s motion for summary judgment as against defendant Molded Fiber Glass Companies (“MFG”). The parties having stipulated to the relevant facts, the Court finds the Trustee is entitled to judgment as a matter of law. *304 FINDINGS OF FACT In relevant part, the parties have submitted the following stipulation of facts: By...
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OPINION The issue in this adversary proceeding is whether we should remand to the United States District Court for the Eastern District of Pennsylvania, civil action No. 82-5324, which was removed to this court by the defendants pursuant to 28 U.S.C. § 1478(a), or transfer said action to the United States Bankruptcy Court for the Western District of Pennsylvania. Because the plaintiff in the sa...
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*363 OPINION The issue before us is whether seventy-four (74) alleged former residents (“the plaintiffs”) of the Sarah Allen Home, Inc. (“the bankrupt”) are entitled to funds which the bankrupt formerly maintained in a separate safe and in a banking account entitled the “Patients’ Fund Account (“the PFA”). Because there is no genuine issue of fact concerning the bankrupt’s inability to use th...
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OPINION Humphreys Pest Control Company, Inc. and Humphreys Pest Control Franchises, Inc. (“Humphreys Franchises, Inc.”) are the debtors in the above-captioned bankruptcy case, having filed a petition for relief under Chapter 11 on November 17, 1982. Both are Pennsylvania corporations. Humphreys Pest Control Company operates an insect extermination business. Humphreys Franchises, Inc. sell...
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MEMORANDUM DECISION PROCEDURAL HISTORY Sepco, Inc. (debtor), filed a complaint to determine the validity, priority, and extent of liens in the above-entitled chapter 11 bankruptcy on March 29, 1983. Seventeen defendants were served with the complaint, including the Valley State Bank of Yank-ton, South Dakota (bank), and Arlon Industries, Inc. (Arlon). Arlon answered and cross-claimed...
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MEMORANDUM This matter is before the court on the motions of the Union Bank of Pulaski, Tennessee (hereinafter “Union Bank”), the United States of America on behalf of the Small Business Administration and Commodity Credit Corporation (hereinafter “SBA” and “CCC” respectively) and Columbia Production Credit Association (hereinafter “PCA”) to dismiss the debtors C. Kenneth and Marianna Frost’s Chap...
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ORDER AND OPINION OF THE COURT This cause came on for hearing on December 20, 1983 upon several pending motions of the parties, all arising out of an adversary proceeding (No. 83-2493-H3) filed by the debtor 1 (hereinafter referred *301 to as “Continental”) against the National Mediation Board, its chairman, Walter C. Wallace and a second Board Member, (hereinafter...
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The present dispute comes to the court on cross motions for summary judgment on questions relating to the ownership of, and security interests in, certain railroad ties which came into the debtor’s possession pri- or to the filing of its chapter 11 case. The essential background, taken from the papers filed in this proceeding, follows. The Wisconsin Department of Transportation (“WisDOT”) ...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Trustee’s Objection to B-4 Schedule wherein the Trustee challenges the Debtor’s claims of exemptions for 1. A camper trailer under Sec. 13-54-102(l)(j), C.R.S.; and 2. “Debtor’s family residence” under Sec. 38-41-201, C.R.S. At the hearing, Debtor stipulated that his claim of exemption for the camper trailer was in error and sh...
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FINDINGS AND CONCLUSIONS In this adversary proceeding, plaintiff, Maryland National Bank, seeks a determination of non-dischargeability of a debt under 11 U.S.C. § 523(a)(6). The trial was held on August 1, 1983. In making the following findings and conclusions, the Court has considered the testimony at trial of Jack Sweeley, the Bank’s representative, and of the debtor, Lee Mogul, and th...
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SECOND PRELIMINARY ORDER ON CONFIRMATION This cause came on to be heard on the confirmation of the Debtors’ chapter 13 plan, the objection of BARNETT BANK OF SOUTH FLORIDA (“BARNETT”) thereto, and Debtors’ motion to deny BARNETT’S objection on the grounds that BARNETT is not the holder of an allowed secured claim within. the meaning of 11 U.S.C. Section 1325(a)(5) and, therefore, may not object un...
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PARTIAL FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CHAPTER 13 PLAN AND SETTING FURTHER EVIDENTIARY HEARING ON AMOUNT OF DAMAGES AND CONFIRMATION OF CHAPTER 13 PLAN This case raises the issues of whether an option contract to purchase land can be rejected under 11 U.S.C. § 365(a) where the debtor’s sole purpose of filing a Chapter 13 petition is to reject the option agreement, and i...
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ORDER ON MOTION FOR TEMPORARY RESTRAINING ORDER THIS IS a Chapter 11 case and the matter under consideration is a request for injunctive relief sought by B.O.S.S. Partners I, a limited partnership currently involved in the above-captioned reorganization case. In order to put the matter in the proper focus, a brief recap of the history of this litigation is in order. On November 10, 1982, B.O.S.S....
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ORDER DISMISSING INVOLUNTARY PETITION Joint hearings on Creditors’ Involuntary Petition in Bankruptcy and Quality Trading Company, Inc.’s Motion To Dismiss Petition were heard before the undersigned Judge on May 13, 1983, May 17, 1983, September 7, 1983, October 16, 1983 and November 15, 1983. Present at the hearings were Sherman Hee, Esq., and Ronald Fujiwara, Esq., for petitioning creditors, ...
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MEMORANDUM OPINION AND ORDER This matter coming on to be heard upon the complaint to collect fraudulent transfers of property, pursuant to Section 548 of the Bankruptcy Code and Illinois Revised Statute Chapter 26 filed by the Trustee, EDWARD LIMPERIS [Trustee], represented by RICHARD J. MASON, of the law firm of LEVIT, MILLER & MASON, LTD., and the answers thereto of the Defendants, MARG...
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MEMORANDUM OF DECISION Plaintiffs have filed an eleven-count complaint alleging a variety of causes of action, including preferential and fraudulent transfers, conversion, fraud, interference with contractual relationships, breach of fiduciary duty, and defamation. Defendants have filed a six-count counterclaim, and demand a jury trial on all issues. Plaintiffs contend that defendants are...
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ORDER APPROVING APPLICATION TO ASSUME EXECUTORY CONTRACT This is a proceeding initiated by the application of Webster Clothes, Inc. [“Webster”] for authority to assume an unexpired lease for retail premises located in Lansing Mall, Michigan, for the remaining term, including the five-year renewal period provided thereunder. The landlord, Forbes-Cohen Properties [“Forbes-Cohen”], has objec...
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MEMORANDUM OPINION The Plaintiff Bank has filed a two-Count Application, seeking in each Count an adjudication in contempt against the Debtor, and other relief. Count II of the application is said to present the question: may a Debtor be adjudicated in contempt — absent an order by the Bankruptcy court — for a failure, whether willful or otherwise, to obey the commands of 11 U.S.C. § 363(...
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DECISION ON MOTION FOR PROTECTIVE ORDER TO QUASH SUBPOENAS AND VACATE ORDERS AUTHORIZING BANKRUPTCY RULE 2004 EXAMINATIONS. It is conceded that this adjudicated bankrupt under the now repealed Bankruptcy Act of 1898, as amended, has the right to examine before trial various potential witnesses, including officers and employees of Leucadia Corporation (“Leucadia”) (formerly known as James Talcot...
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ORDER On October 27, 1983, the First National Bank of Oakes (“BANK”) moved the Court for an order pursuant to section 365(d)(2) of the Code compelling the Debtors to assume or reject a self-styled “lease” pertaining to the following property:' One 12' X 16' Mini Swine 120 Head Nursery w/self contained pit w/spilde “Save” Unit w/auto medicator The Debtors resist the Motion asserting th...
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OPINION In response to our order of October 13, 1983, granting relief from the automatic stay to Central Penn National Bank (“Central Penn”), the trustee and the creditors’ committee have moved for reconsideration based on the pendency of a marshalling action against Central Penn. For the reasons stated herein we will deny the motion. The facts of the case are as follows: 1 ...
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OPINION A creditor has commenced an action to bar the discharge of a debt under 11 U.S.C. § 523(a)(2)(A) and to avoid an allegedly fraudulent conveyance pursuant to 11 U.S.C. § 548. For the reasons related herein, we will deny both requests for relief. The facts of the case are as follows: 1 In 1974 the debtor first employed Albert Skinner (“Skinner”) as an independent contractor for the pu...
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MEMORANDUM OPINION In this Chapter 11 proceeding involving the debtor, Arthur A. Everts Co. (hereinafter referred to as “Debtor”), a retail jeweler, the complainants, The Leverett Co. and Harold Freeman Jewelry Co. (hereinafter referred to as “Leverett” and “Freeman,” or “Plaintiffs”), filed a motion to lift stay against Debtor, and an adversary complaint against First National Bank of Eu...
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MEMORANDUM AND ORDER On June 10, 1983, when the debtor filed her petition for order for relief under Chapter 13 of Title 11, United States Code, she was indebted to Amarillo Pantex Federal Credit Union in the principal sum of $5,231.53. On that date she had on deposit in her draft account at Amarillo Pantex Federal Credit Union the sum of $1,854.94 and in her savings account she had on deposit ...
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*271 MEMORANDUM OPINION This matter came before the Court upon the filing of a motion for stay pending appeal by Lubrizol Enterprises, Inc. (Lubri-zol) of a judgment by this Court regarding the rejection of an executory contract. After notice and hearing, and after submission of memoranda by counsel for the debtor, Richmond Metal Finishers, Inc. (RMF), and Lubrizol, this Court renders the fol...
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OPINION AND ORDER This proceeding was brought to determine the dischargeability of an obligation of the defendant debtor under a divorce judgment. At trial the plaintiff was represented by attorney John Heibl of Madison, Wisconsin and defendant was represented by attorney William Dyke of Mineral Point, Wisconsin. Plaintiff Dorothy Chambers was divorced from defendant Wayne Chambers in 1975, a...
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MEMORANDUM OPINION AND ORDER I This proceeding was commenced by the debtors to recover garnished bank account funds from a creditor. The issue which must be determined by this Court is whether the transfer of funds to the creditor constitutes a voidable preference under 11 U.S.C. § 547(b) (Supp. Y 1981) of the Bankruptcy Code. II The creditor, General Motor Acceptance Corporation (GMAC), ...
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MEMORANDUM OPINION AND ORDER A single petitioning creditor initiated this involuntary case. Alleged debtors responded by Motions to Dismiss and the posting of an indemnity bond. They also answered by general denial and stated also that the petition was filed in bad faith and that they had more than twelve creditors. They did not, however, file a list of creditors as required by Rule 1007(a)(2),...
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MEMORANDUM OPINION This adversary proceeding was commenced by the Plaintiffs, Reiten Equipment, Inc. (“REITEN, INC.”) and Donald Reiten (“REITEN”) on September 22, 1981, which in three counts seeks to have various debts declared non-dischargeable under sec *248 tion 523(a)(2), 523(a)(4) and 523(a)(6) of the Code for the reason that said debts arose by virtue of a clear and co...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW This matter came on for hearing on October 13, 1983, pursuant to an objection filed to the Court’s order reopening this Chapter 7 case for the purpose of adding to the schedules a debt previously omitted. Although all pleadings in this case are captioned in terms of reopening the case, the true dispute is whether the previously omitted debt in ...
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OPINION The matter in dispute is whether we should grant the plaintiff’s motions to dismiss the counterclaims for setoff which were filed in response to the plaintiff’s complaints for avoidance of alleged preferential transfers under 11 U.S.C. § 547(b) of the Bankruptcy Code (“the Code”). For the reasons stated herein we will grant one motion and deny the other. The facts of the case...
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ORDER This matter having come on for hearing upon the Motion of Maurice E. Marlette, Jr. for relief from the stay of 11 U.S.C. § 362 in order to foreclose his interest in certain real property located in Lowndes County, Alabama, more particularly described in said motion; due notice of hearing having been given; and the matter having been consolidated for the purpose of trial with the Motion of...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a contested discharge proceeding and the matter under consideration involves a claim of non-dischargeability asserted by Montgomery Ward, the Plaintiff who commenced this adversary proceeding. It is the contention of the Plaintiff that the Defendant/Debtor, Dennis LaBuda, obtained money or property by false pretenses in that he...
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MEMORANDUM OPINION AND ORDER Fruehauf Corporation, hereinafter Frue-hauf, sold Debtor fifty (50) refrigerated trailers and twenty (20) dry vans. Debtor defaulted on the required payments in July of 1981 and filed for reorganization under the Bankruptcy Code in October of 1981. In December of 1981 Fruehauf sought relief from the automatic stay to repossess its trailers or for adequate prot...
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OPINION The Wilmington Trust Company (“the bank”) has filed a complaint under 11 U.S.C. § 523(a)(2)(A) and (a)(4) of the Bankruptcy Code (“the Code”) seeking a determination of the nondischargeability of a debt owed to it by the debtors. For the reasons stated herein we find the debt non-dischargeable. The facts of the case are as follows: 1 For the purpose of purchasing a...
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MEMORANDUM This adversary proceeding was initiated by the trustee 1 to recover a series of alleged preferential transfers from the defendants Gulf Oil Products (hereinafter “Gulf”) and Boyd Distributing Company, Inc. (hereinafter “Boyd”) pursuant to 11 U.S.C. § 547. 2 Boyd filed a third party complaint against Gulf alleging that Gulf was liable to the trustee for ret...
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DECISION ON TRUSTEE’S MOTION TO APPROVE SETTLEMENT, ETC. David Green, interim trustee for the Estate of Carla Leather, Inc. (“Carla” or “Debtor”) and Eliot Lumbard, trustee for the Estate of Meritum Corp. (“Meritum”), jointly apply for an order from this Court approving the settlement and dismissal of certain claims between the Debtor and Meritum and the joint retention of Meri-tum’s coun...
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