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All Reporters → bankr-lexis → Volume 1986

Opinions in bankr-lexis Volume 1986

ORDER The Trustee, Myron E. Wasserman, filed a complaint and amended complaint to sell personal property and determine validity, priority and extent of liens. By order of November 5, 1985, Trustee was authorized to sell the property and certain liens were transferred to the fund. Presently at issue is the validity and priority of the security interest of Ameritrust Company National Association (A...
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This adversary proceeding has been submitted to the undersigned United States Bankruptcy Judge for decision based upon a Stipulation of Fact and Memoranda of Law. Plaintiff appears by his attorney, Timothy D. Moratzka. 1 Defendant appears by her attorney, Michael P. Kircher. All parties have advised the Court that in their opinion the matter is ready for decision. These Findings of F...
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MEMORANDUM This matter is before the Court upon the motion of Access Satellite International (USA), Inc. (“Satellite”) for relief from stay. Satellite seeks to recover eleven elevating work platforms and 253 associated mast sections from Access Equipment, Inc. (“Equipment” or the “debtor”). This bankruptcy proceeding was commenced on March 13, 1986 by Equipment’s filing of a voluntar...
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MEMORANDUM DECISION Steven and Samantha Lucas (“Debtors”) seek to avoid liens of ITT Financial Services, formerly known as Aetna Finance Company (“Aetna”). 11 U.S.C. § 522(f)(2)(A) permits a debtor to avoid non-possessory, non-purchase money security interests in, among other things, the debtor’s “household furnishings” and “household goods.” Aetna opposes the Debtors’ lien avoidance acti...
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OPINION The predominant question for decision is whether we should grant a retail sales company an exception to discharge against the debtor on the basis that the debtor, as a commissioned saleswoman, diverted sales from the company to her own business. For the reasons outlined below, we conclude that the plaintiff should be granted an exception to discharge in the amount of $55,741.14 un...
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MEMORANDUM OPINION The above-styled adversary proceeding is before the Court on cross-motions for summary judgment. Before addressing the matter presently at issue, a brief statement of the history of the proceeding is in order. During the pendency of this proceeding and prior thereto the defendants, Spring Valley Farms, Inc., and Spring Valley Foods, Inc., have been involved in the ...
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MEMORANDUM OPINION The above-styled adversary proceeding is before the Court on the motion of the plaintiff, Commanders Quartet, for summary judgment. After due consideration of the materials submitted in support of said motion, the Court finds that the motion is due to be denied. The relevant facts are as follows: 1. On June 25, 1979, the plaintiff filed a complaint against the defendant in ...
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ORDER ON DEBTORS’ MOTION TO AVOID LIEN The debtors’ motion to avoid, under 11 U.S.C. § 522(f)(1), a judicial lien which impairs the exemption they have claimed for *427 their homestead was heard on December 16. Section 522(f) permits a debtor to: “avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause having come on for trial, consolidated on all claims of the United States against Debtors Fogelberg and Horowitz, the Court having admitted and considered evidence and both sides having rested, argument of counsel being heard and considered, now therefore the Court does make and enter the following Findings of Fact and Conclusions of Law,...
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MEMORANDUM OF DECISION Melvin M. Feldman, trustee of the bankruptcy estate of Jeffry Lynn Chapman and Linda L. Chapman, has objected to the claim of exemptions by the debtors insofar as debtors claim as exempt a 1979 Freight-liner Tractor and 1978 Hill Trailer. This equipment is said to be valued at $30,000. The debtors filed their Chapter 7 bankruptcy petition on June 18, 1986. The exemp...
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OPINION Daniel F. Featherston, Jr. (“Special Counsel”) moves to he paid additional compensation measured by a pro rata share of the income earned in the investment of certain settlement proceeds. Robert Robinson, the trustee in bankruptcy (the “Trustee”), opposes the motion except to the extent that it seeks interest earned during the period following the Court’s order of S...
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*749 MEMORANDUM OPINION The trustee in bankruptcy in this adversary proceeding has attacked certain transfers made by the debtor, Gerard R. Sorluc-co, to his ex-wife, Carol G. Sorlucco, in conjunction with a pending divorce proceeding between the parties in the New York state court system. The transfers in question occurred both before and after the filing of the debtor’s bankruptcy petition ...
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OPINION The matter presently before the court is a complaint filed by Mary Ellen MacDonald (plaintiff) to determine the dischargeability of certain debts of the debtor, Warren F. MacDonald, Jr. (debtor) under 11 U.S.C. § 523. The issue before this court is whether the debtor’s agreement to indemnify and to hold the plaintiff harmless on account of certain joint obligations set forth ...
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OPINION Before the court are two matters: (1) a Notice of Motion by San Antonio Savings Association (SASA) for modification of the automatic stay pursuant to 11 U.S.C. § 362(d) to permit SASA to institute foreclosure proceedings on its mortgage against certain property of the debtor-in-possession, and; (2) a Notice of Motion by Dunes Casino Hotel, a New Jersey partnership, the debtor-in-p...
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OPINION The issues for consideration are whether the defendant, Fred V. Boccella (“Boccella”), should be held in contempt for his delay in complying with the terms of our May 5, 1986, order which authorized the sale of the assets of the debtor, Edgehill Nursing Home, Inc. (“Edgehill”), and whether Boccella’s appeal of said order was filed in bad faith. For the reasons set forth below, we find t...
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OPINION The issue for consideration is whether we should grant a secured creditor’s motion for relief from the automatic stay under 11 U.S.C. § 362(d)(2) of the Bankruptcy Code (“the Code”) in order to allow it to foreclose on several properties owned by the debtors. For the reasons set forth below, we will grant the motion for relief from the automatic stay. The facts of this case a...
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OPINION The issue for resolution is whether we should grant an employee’s motion to vacate our recent order denying priority status for severance pay under 11 U.S.C. § 507(a)(3) of the Bankruptcy Code (“the Code”) when his employment was terminated outside the ninety day pre-petition period but payments were scheduled to be made during the pre-petition period. For the reasons set forth below, we w...
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OPINION The issue at bench is the value of a mortgagee’s interest under 11 U.S.C. § 506(a) of the Bankruptcy Code (“the Code”) in property owned by the debtor and his non-debtor spouse as tenants by the entireties, when the mortgage lien extends to both husband and wife. For the reasons set forth below, we conclude that the estate’s interest in the entireties property should be...
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ORDER OF DISMISSAL The Debtors herein filed a Chapter 13 case. In response to the petition Pearle *409 Vision Center, Inc. (“Pearle”) filed a motion to dismiss asserting that the Debtors do not qualify to file a Chapter 13 case within the provisions of 11 U.S.C. § 109(e). In particular, Pearle asserts that the Debtors owe unsecured, noncontingent, liquidated debts in excess o...
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ORDER ON MOTION TO CONVERT The within Chapter 11 case was filed by the Debtor herein on July 14, 1986. The Debtor, a family-owned corporation which is engaged in the farming business, has filed a motion to convert the pending Chapter 11 case to Chapter 12 as recently enacted pursuant to subtitle B of Title II of H.R. 5316 Pub.Law 99-554, the “Bankruptcy Judges, United States Trustees, and Famil...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for trial on November 3, 1986 and November 6, 1986, upon a Complaint filed by Marill Security Services, Inc., a Florida corporation (hereinafter “Marill Security”), Marill Alarm Systems, Inc., a Florida corporation (hereinafter “Marill Alarm”), and Eddy Marill and Mir-tha Marill (hereinafter “Marills”), all Debtors-In-Possession in rela...
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MEMORANDUM ON PREFERENTIAL PAYMENT Under consideration is an adversarial proceeding brought by the trustee in bankruptcy in an effort to recoup an alleged preferential transfer to the defendant under 11 U.S.C. § 547(b).1 The debtor declared bankruptcy on September 13, 1985. The defendant admits that the transfer in question took place within 90 days of the debtor’s filing of its bankruptcy petiti...
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OPINION AND ORDER ON COMPENSATION OF TRUSTEE’S COUNSEL The law firm of Widett, Slater & Goldman, P.C. (the “Firm”) has applied for allowance of compensation and reimbursement of expenses in connection with its services as counsel to Robert Robinson, the trustee in bankruptcy (the “Trustee”) of D.C. Sullivan & Co., Inc. (the “Bankrupt”), as well as its services as counsel to a predecessor ...
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DECISION and ORDER ON MOTION TO ABANDON Debtor in this case has listed in the schedules filed with his petition ownership in an undivided one-half interest in real property with his non-bankrupt spouse, as a tenant by the entireties. Debtor properly made application to the trustee for abandonment of the property, but the trustee declined to do so, taking the position that there was equity in th...
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DECISION AND ORDER ON MOTION TO COMPEL ASSUMPTION OR REJECTION OF LEASE and REQUESTING PAYMENT OF ADMINISTRATIVE EXPENSES In this Chapter 11 case, filed January 15, 1986, movant filed Motion to Compel Assumption or Rejection of Lease and Requesting Payment of Administrative Expense pursuant to 11 U.S.C. § 503(b)(1)(A). Debtor is a lessor of railroad tank cars from movant under a Car Service Agr...
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ORDER ON CAPITAL BANK’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPT PROPERTY The above matter was scheduled before this Court for November 6, 1986 at 9:30 A.M. in this Court’s Ft. Lauderdale Division. Counsels for the respective parties stipulated that the Debtor, OSCAR GIL-MAN, holds a B-l Visa but does not possess a permanent Visa, or what might ordi *375 narily be referred to as a “Green Card”, ...
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ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY THE MATTER under consideration is a Motion for Relief from Automatic Stay filed by Leonard Y. Chancey and Geraldine B. Chancey (Chanceys), creditors in the above-captioned case. The Court has considered the Motion, together with the record, heard arguments of counsel at a final evidentiary hearing, and finds as follows: The Motion for Relief from Auto...
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ORDER ON MOTION FOR CONTEMPT AND ORDER ON MOTION TO ALLOW FILING OF LIEN NUNC PRO TUNC THE MATTERS under consideration are a Motion for Contempt against Park Bank Professional Condominium Association, Inc. (Association) filed by Paul David Maas (Debtor), the Debtor in the above-captioned case and a Motion to Allow Filing of Lien Nunc Pro Tunc filed by the Association. The Court has consid...
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ORDER GRANTING MOTION OF PE-TROLEOS MEXICANOS FOR ENLARGEMENT OF TIME TO FILE PROOF OF CLAIM AGAINST CHARTER CRUDE OIL COMPANY This matter came before the Court upon the motion of Petróleos Mexicanos (“Pe-mex”) for enlargement of time to file proof of claim. I. FACTS During 1981, Pemex, an agency of the United Mexican States, and Charter Crude Oil Company (“CCOC”) entered into a...
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OPINION AND ORDER This matter came on to be heard on the Debtors’ complaint to determine the secured status of a loan made to the Debtors by the Defendant, the United States of America, acting through the Farmers Home Administration (Defendant). On December 17, 1979, the Debtors borrowed from the Defendant the sums of $100,-000.00 and $47,000.00 (Operational Loan). They executed the Defendant’s...
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OPINION This matter is before the Court on the Trustee’s Petition For Instructions. At the time of the filing of his Petition For Relief the Debtor, Max Hilligoss, was a farm tenant on a crop share basis of certain acreage owned by Avey Farms, Inc. The Debtor was also a farm tenant on a cash rent basis of 40 acres owned by L.H. Monke, half of the cash rent having been paid at the time the petit...
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ORDER DENYING DEBTOR’S MOTION TO VACATE ORDER ENTERED OCTOBER 29, 1986; REJECTING DEBTOR’S THIRD-AMENDED DISCLOSURE STATEMENT AS INADEQUATE; REJECTING CREDITOR COMMITTEE’S DISCLOSURE STATEMENT AS INADEQUATE; GRANTING RELIEF FROM STAY TO PROBATE ESTATE OF JOHN AND VERNA KLEEPSIE; GRANTING RELIEF FROM STAY TO LUTHERAN BROTHERHOOD This matter is before the Court on the following motions and ...
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ORDER ON “AMENDED MOTION TO SET ASIDE ASSIGNMENT OF INCOME” FILED BY THE DEBTORS, JOHNNY AUSTIN GERMANY AND PATRICIA ANN GERMANY, AND ON FARMERS HOME ADMINISTRATION’S “CROSS MOTION TO DETERMINE VALIDITY OF ASSIGNMENT” THIS MATTER came on for hearing on the Debtors’ “Amended Motion to Set Aside Assignment of Income” and a “Cross Motion to Determine Validity of Assignment” filed by Farmers ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DIRECTING RETURN OF $50,000 PLUS APPROPRIATE INTEREST BY DEFENDANTS TO THE PLAINTIFF This is an action brought by a chapter 11 debtor for the purpose of compelling the defendants to return to it the sum of $50,-000 which the debtor paid as an earnest money deposit 1 on a contract for the lease *230 of a certa...
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DECISION AND ORDER United States Lines, Inc., a debtor herein (the “debtor”) seeks from this Court a preliminary injunction restraining defendant GAC Marine Fuels Ltd. (“GAC Marine”) from taking any action to arrest or interfere with vessels and other property of this estate. It further seeks an order holding GAC Marine in civil contempt for violating both the automatic stay applicable to...
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DECISION ON MOTION POR AN ORDER CONVERTING THIS CASE FROM CHAPTER 11 TO CHAPTER 7, OR IN THE ALTERNATIVE, AN ORDER OF DISMISSAL The United States trustee has moved pursuant to 11 U.S.C. § 1112(b) for an order converting this Chapter 11 case to a case under Chapter 7 of the Bankruptcy Code or, in the alternative, for an order of dismissal. The official creditors’ committee joins in this mo...
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DECISION ON COMPLAINT FOR IMMEDIATE PAYMENT OF A CLAIMED HOMESTEAD EXEMPTION This adversary proceeding was brought to declare the debtor's right to a homestead exemption and to compel the trustee in this Chapter 7 case to pay over to him that portion of the proceeds of the sale of a house to which a homestead exemption applies. The trustee opposes the debtor’s contention that a trustee may be c...
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DECISION AND ORDER ON MOTION TO AMEND SCHEDULE The present motion arises as a contested matter within this Chapter 11 case. Mov-ant, the Equal Employment Opportunity Commission, requests that it be added to the schedule of debtor’s creditors. It does not now so appear, notwithstanding that it asserts a claim arising from an incident which occurred pre-petition. The underlying facts are not in...
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DECISION AND ORDER ON SUMMARY JUDGMENT Plaintiff brought this adversary proceeding to determine the dischargeability of a state court judgment rendered in his favor against the defendant. Plaintiff alleges in his complaint that he obtained a judgment in Hamilton County Municipal Court in the amount of $9,700.00, that the “judgment was based upon proven allegations” of false representations rega...
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*377 OPINION This case raises an issue of first impression: whether a residential mortgage lender subject to the restrictions of Pennsylvania Act 6 of 1974, 41 P.S. §§ 101 et seq., may obtain counsel fees in excess of $50.00 for legal services incurred, in connection with a motion for relief from stay filed in bankruptcy court under 11 U.S.C. § 362, where those service...
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OPINION The debtors, Kevin J. Fries and Diane L. Fries, filed this chapter 18 bankruptcy case on March 12, 1986. On October 21, 1986, the court held a confirmation hearing. Pri- or to the confirmation hearing, Philadelphia National Bank (PNB), which holds both secured and unsecured claims, filed objections to confirmation on three grounds. PNB asserts that: (1) the debtors have not shown ...
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OPINION AND ORDER Facts and Procedure Before the Court is the objection of Ha-mot Medical Center (“Hamot”) to certain exemptions claimed by the Debtor. Specifically, the objection states that the claimed exemptions exceed those allowable under 11 U.S.C. § 522(d) and that certain proceeds derived from the settlement of a personal injury action are not exemptible under § 522(d)(ll)...
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OPINION Case Summary This matter comes before the Court on the Trustee’s Complaint for Turnover of Pennsylvania Liquor License No. R-16785. The Trustee alleges that the transfer of the license was a preferential transfer of an asset of the Debtors to the Defendant which is avoidable under Bankruptcy Code, 11 U.S.C. § 547. The Defendant’s posture is that the transfer was more than...
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Submitted on exhibits and memoranda, on the motion of CIT Financial Services Corp. (CIT) for relief from stay, and for a ruling that it has a perfected purchase money security interest. in the proceeds from the sale of certain equipment of Acme Motors, the debtor. The motion is opposed by William Gabrilowitz and Irving Gabri-lowitz, temporary operating officers and former principals of the debtor,...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Johnson & Higgins of Virginia, Inc. for an order of the Court declaring that A.H. Robins Company, Inc. has assumed certain executory contracts. A hearing was conducted on November 24, 1986 at the conclusion of which this matter was taken under advisement. Based upon the evidence adduced at the hearing, the arguments of...
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The Chapter 11 debtors, Merv and Linda Newell, appeal from the bankruptcy court’s *117 order terminating the automatic stay entered in favor of the appellee, Bank of Palm Springs (“Bank”). The sole issue raised by the Newells on appeal relates to the timeliness of their objections 2 to the Bank’s proposed findings of fact, conclusions of law, and order, which ...
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FINAL JUDGMENT DENYING PLAINTIFF’S COMPLAINTS FOR DECREES OF NONDISCHARGEABILITY BUT DENYING THE DEFENDANT’S DISCHARGES IN BANKRUPTCY The plaintiff seeks decrees of nondis-chargeability of the defendants’ indebtedness to it on the grounds of fraud (§ 523(a)(2) of the Bankruptcy Code) and willful and malicious conversion (§ 523(a)(6)) and also seeks denial of discharge for fraudulent conce...
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MEMORANDUM OF DECISION The trustee’s motion for a determination of priorities among three competing liens attaching to the proceeds from a sale of estate property gives rise to this core proceeding.1 See 28 U.S.C. § 157(b)(2)(E). No evidentiary hearing has been held, the lien claimants, the trustee and the debtors having stipulated to most of the following background. Additional facts have been *...
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ORDER ON OBJECTION TO CLAIM OF IRS THIS IS a Chapter 11 case, and the matter under consideration is an objection to the claim filed in the above-captioned case by the United States Government (IRS). The claim is based on alleged unpaid income taxes in the amount of $35,772.00 for the tax year 1980, $43,552.00 for the tax year 1981, and $40,032.00 for the tax year 1982. The alleged unpaid income...
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ORDER Before the Court is defendants’ motion to dismiss for lack of jurisdiction filed July 14, 1986. This motion is filed pursuant to Fed.R.Civ.P. 7(b)(1) and 12(b)(2), applicable herein by Bankruptcy Rules 7007 and 7012. In their motion defendants allege that this Court lacks personal jurisdiction over them in the above-styled adversary proceeding. Plaintiff filed its response on August...
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NUNC PRO TUNC ORDER DENYING THE MOTION OF THE DEBTORS TO SET ASIDE THE COURT’S FORMER ORDER OF DISMISSAL I This court formerly, on October 7, 1986, issued its order dismissing the within chapter 11 proceedings. At that time, the proceedings had pended before the court for some 8 months since February 5, 1986, without the presentation of a confirmable plan to the court. The tangled procedural ...
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ORDER DENYING MOTION TO REJECT LEASE BY JULIUS AND SARAH WALL This matter comes on for hearing on the Motion of Julius F. and Sarah A. Wall (Walls) for an order determining that a certain oil and gas lease by and between the Walls, as lessor, and Clark Resources, Inc., as lessee, has been rejected pursuant to 11 U.S.C. section 365. Alternatively, the Walls would move that this Court set a...
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MEMORANDUM OPINION This matter comes before the court upon the objection of Eric R.T. Roost, the duly appointed Chapter 7 trustee herein (Chapter 7 trustee) and the objection of Magda Vargas, a creditor (objecting creditor) to the final account and report of John H. Foster, the former Chapter 11 trustee herein (Chapter 11 trustee) filed April 21, 1986. The Chapter 7 trustee and objecting credit...
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MOOREMAN, Bankruptcy Judge: By this appeal, appellants Pioneer Commercial Funding Corporation and 66 loan participants challenge the bankruptcy court’s subordination of their claims. In its order concerning cross-motions for summary judgment, the bankruptcy court ruled in favor of the plaintiff unsecured creditors’ committee, finding a loan transaction to be an equity participation by the ...
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MEMORANDUM OF DECISION ON COMPLAINT TO REVOKE CHAPTER 13 ORDER OF CONFIRMATION UNDER CODE SECTION 1330(a) The debtor filed a Chapter 13 petition on March 12, 1985. On March 27 of that year, she filed a plan and a Chapter 13 statement. On August 14, 1985, following the May 13, 1985 meeting of creditors called pursuant to Code § 341(a), a confirmation hearing was held, and the debtor’s plan...
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ORDER ON MOTION TO ALLOW SECOND AMENDED PROOF OF CLAIM FOR DEPARTMENT OF REVENUE TAXES AND ORDER ON OBJECTION OF CLASS III TRUSTEE TO GARDINIER, INC.’S MOTION TO ALLOW SECOND AMENDED PROOF OF CLAIM FOR DEPARTMENT OF REVENUE TAXES THE MATTERS under consideration in this Chapter 11 case are a Motion to Allow Second Amended Proof of Claim for Department of Revenue Taxes, filed by Gardi-nier, Inc.,...
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ORDER THIS MATTER came on to be heard upon the trustee’s objection to the debtors’ claim of exemption in the joint Chapter 7 proceeding herein. Specifically, the trustee asserts that the debtor/wife is not entitled to claim any portion of the 1985 income tax refund as exempt because she was unemployed during the taxable year and contributed nothing toward the refund. In response to said objec...
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*656 MEMORANDUM OPINION These two adversary proceedings bring before the court complaints by two young women injured in the same automobile accident, involving a vehicle driven by the debt- or-defendant, that their claims for damages for their injuries are nondischargeable under § 523(a)(9) of the Bankruptcy Code. That section provides that a bankruptcy discharge does not dischar...
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DECISION ORDERING SANCTIONS This is a case that arises under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (0). On August 22, 1986, the above debtors filed a voluntary Chapter 7 bankruptcy case under Case No. 3-86-02180 (Doc. 2). On October 17, 1986, the debtors filed a Statement Of Debtors’ Intent...
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Miskovsky filed this complaint seeking a determination of non-dischargeability of his attorney’s fee award pursuant to a decree of divorce. He contends that the award is non-dischargeable pursuant to 11 U.S.C.A. § 523(a)(5) (1979 & Supp.1985). 1 The debt- or-defendant has moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure as adopted by Rule 7012 of the...
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OPINION We herein consider a Motion of Counsel for the Debtor, Wolf, Block, Schorr, and Solis-Cohen (hereinafter “the Movant”), requesting that we reconsider our Order of September 2,1986, allowing certain Interim Attorney’s Compensation and Costs in an amount less than that requested by the Movant. The issues presented are whether we erred in the following aspects: (1) Granting the hourl...
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OPINION Presently before the Court are timely Motions filed by respective Counsel for the Debtors in the above-entitled matters asking that we reconsider our Orders disallowing most of the sums which they requested for reimbursements of costs expended for photocopying, postage, and telephone charges incurred in the course of their representation of the respective Debtors. For *339 ...
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OPINION The facts of this case require us to explore several issues which pervade the numerous proceedings brought before our court, like all bankruptcy courts, to avoid certain pre-petition transfers of a debtor as preferential transfers, pursuant to 11 *327 U.S.C. § 547. The issue presented, and our determinations as to each of them are as follows: (1) When is a debt f...
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MEMORANDUM OF OPINION Brints Cotton Marketing, Inc. (BCMI) provided a cotton marketing service to farmers. The farmer delivered warehouse receipts for cotton to BCMI and entered into an “on-call” contract with BCMI. The farmer received from BCMI an amount equal to the Commodity Credit Corporation loan value attributable to the cotton, less certain charges for BCMI. The farmer would have a specifi...
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*472 OPINION I A creditor, Mortgage Mart, Inc. (“Creditor”), brought this suit against the Debtor, Toney Chisum, and his attorney, Julia Coleman, claiming that their repeated bankruptcy filings required the Bankruptcy Court to award sanctions, punitive damages and attorney’s fees in favor of the Creditor. The Bankruptcy Court ruled in favor of the defendants and the Creditor now appeals. ...
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The debtor appeals from an order denying its motion to assume a non-residential lease on the grounds that the lease was not assumed within sixty days as required by § 365(d)(4). 1 Victoria Station has a buyer for the lease for $225,000, if it is permitted to assume *111 and assign the lease. The issue presented is whether the service of a motion to assume on the last day permitted for assum...
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MEMORANDUM OPINION The issue before this court is the extent to which the debtor may avoid a judgment lien on the debtor’s residence (the “Property”). The judicial lien is held by Lionel Daniel West in the amount of $76,795 (the “West Lien”). The debtor filed a petition for relief under Chapter 7, Title 11, U.S.C., on June 18, 1985 and listed on her schedules the value of the Property at $116...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 7 adversary proceeding is a Motion for Summary Judgment filed by Dianne Lindsey Lovette (Ms. Lovette), Plaintiff in the above-captioned adversary proceeding. Ms. Lovette seeks a determination by this Court that a debt owed to her by Robert Láveme Cox, the Debtor (Debtor), is alimony and pursuant to § 523(a)(5) o...
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ORDER ON MOTION TO DISMISS CHAPTER 13 CASE THE MATTER under consideration is a Motion to Dismiss Chapter 13 case filed by Margaret W. Forehand (Forehand), a creditor in the above-captioned case. The Court has considered the motion, together with the record, and is satisfied that the motion is not well taken, therefore, it should be denied. Forehand’s major contention is that the Debtor’s Chap...
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OPINION AND ORDER This matter comes before the Court on the amended motion of NORTHEAST MISSOURI ELECTRIC POWER COOPERATIVE (NORTHEAST) for relief from the automatic stay. In February, 1985, NORTHEAST leased two tracts of farmland to CHARLES F. EDDINGFIELD (EDDINGFIELD), the debtor, under separate cash rent agreements. Each lease provided that 40% of the cash rent was payable on Marc...
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MEMORANDUM AND ORDER The matter before the court is an adversary proceeding commenced on July 2, 1986, to determine the secured status of Production Credit Association of the Midlands/Farm Credit System Capital Corporation (PCA) in property of John and Alice Todd (Debtors). The dispute is essentially twofold: whether PCA’s security interest in the Debtors’ chattels is perfected and whethe...
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MEMORANDUM-DECISION AND ORDER The facts surrounding the present motion of The Chase Manhattan Bank, N.A. (“Bank”) are not in dispute. Gerald F. Eccleston (“Debtor”) filed a bankruptcy petition for relief under Chapter 11 of 11 U.S.C. §§ 101-151326 (“Code”) on June 19, 1984. The Bank filed a proof of claim asserting a secured claim in the amount of $116,557.13. Debtor’s case was voluntaril...
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*986 FINDING AS TO MOTION OF DEBTOR TO COMPEL ACCEPTANCE OF PAYMENT I.BACKGROUND On August 7, 1986 this court entered an order confirming a chapter 11 plan of reorganization of Scranes, Inc. which stated in part: 2.3 Class Three Claims. The Class Three Claims of The Huntington National Bank and the Small Business Administration arise out of a working capital ...
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DECISION ON MOTION TO LIFT STAY In this Chapter 11 case, the present contested matter represents another round in the ongoing dispute between debtor, The Cablehouse, Ltd., and its construction lender, movant herein, Indiana National Bank. In an earlier matter decided May 23, 1986, we denied a motion of debtor to secure additional financing pursuant to § 364(d)(1), upon objection by Indian...
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MEMORANDUM OPINION This matter is before the court upon cross motions for summary judgment filed by Les Schwab Tire Center of Oregon, Inc., (hereinafter Schwab) and Paul Lansdowne, trustee, in this adversary proceeding to avoid a preferential transfer under 11 U.S.C. § 547. Both parties agree that the facts are not in dispute and that the issue before the court is solely a question of law...
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OPINION The issue is whether estimated costs of sale should be deducted from the uncontested appraised value, in ascertaining the value of the property for the purpose of determining what portion of the judgment lien should be avoided under § 522(f), and what portion, if any, of the judgment lien should not be avoided. Debtors have filed a motion for avoidance of a judgment lien held by the r...
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ORDER DENYING CHANGE OF VENUE Baltimore Food Systems, Inc. (“Baltimore Foods”), filed a Chapter 11 petition for reorganization in the United States Bankruptcy Court for the District of South Carolina on October 15, 1986, and since that date has continued operations as Debt- or in Possession under the protection of this Court. On November 26, 1986, Martin Financial Associates Limited Partn...
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This matter came to be heard on the motion of Owen Steel Company, Inc. (Owen Steel) for a determination of whether or not the debtors adversary proceeding is a core proceeding. The court hereby finds the adversary proceeding is a core proceeding. FACTS 1. On December 9, 1985, the debtor filed a petition for bankruptcy. 2. On January 21, 1986, the debtor filed an adversary proceeding complai...
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FINDINGS AND CONCLUSIONS BY THE COURT ON SECURED CLAIMS AND ON CONFIRMATION OF CHAPTER 13 PLAN The above-styled case was commenced by the debtors’ petition under title 11, chapter 13, United States Code, on November 12, 1985, and is distinguished for remaining pending under that chapter without resolution of the matter of confirmation of the debtors’ plan. A confirmation hearing was originally ...
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ORDER REINSTATING CHAPTER 13 CASE, DISCHARGING DEBTOR’S ATTORNEY, AND SETTING HEARING RE. ATTORNEY FOR DEBTOR’S COMPENSATION This cause came on to be heard upon the debtor’s motion to vacate and/or reconsideration of order dismissing case for failure to file chapter 13 statement and plan. The motion filed by debtor’s counsel recites that the debtor’s failure to file the plan was a result of d...
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*757 OPINION This matter is before the Court on the Petitioner’s motion to withdraw certain real estate from the bankruptcy estate. The Trustee opposes the motion. The matter was called for hearing on July 2, 1986. At this time, the Court set a briefing schedule. The matter has now been fully briefed and it is ripe for decision. The Debtor filed his Chapter 7 petition in bankruptcy on Octob...
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AMENDED MEMORANDUM AND ORDER DENYING PLAN OF CONFIRMATION Debtor is a self-styled “Tax Protester”. 1 He failed to file federal income tax returns for the years 1978 through 1985. In one of those years, 1979, the debtor instead filed an altered Form 1040 on which he deducted all of his wages under the heading of “NON-TAXABLE RECEIPTS — EISNER V. MACOMBER,” ...
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*291 MEMORANDUM DECISION FACTS On April 14, 1986, Lewis Wayne Shuman (“Shuman”) filed a petition for relief under Chapter 7 of the Bankruptcy Code, 11 U.S.C. §§ 701-766. At the time he filed the petition, Shuman was the sole stockholder and president of American Investors Management, Inc. (“AIM”) and was one of two trustees of the AIM Profit-Sharing Plan and Trust (“Profit-S...
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68 B.R. 463 (1986) In re TECHNICAL KNOCKOUT GRAPHICS, INC., Debtor. BAP No. CC 86-1255 MoMeV, Bankruptcy No. LA 84-09114-(JA)BR. United States Bankruptcy Appellate Panels of the Ninth Circuit. Argued and Submitted July 23, 1986. Decided December 19, 1986. *464 Edward M. Robbins, Jr., Asst. U.S. Atty., Los Angeles, Cal., for appellant. Philip D. Dapeer, Los Angeles, Cal., for appellee. Before MOOR...
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MEMORANDUM OF DECISION I This matter is before me on the complaint of a Chapter 7 trustee seeking turnover from the debtor’s two minor children of a one-half interest in a family residence located in Mesa, Arizona. 11 U.S.C. § 542(a), Rule 7001(1), F.Bk.R. Such an action is a core proceeding as that term is defined by the 1984 Bankruptcy Amendments. 28 U.S.C. § 157(b)(2)(E...
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ORDER GRANTING RULE 11 SANCTIONS AGAINST ATTORNEY WILLIAM NEEDLER Having had the issue of sanctions under advisement since September 9, 1986 and having fully reviewed the record in this matter and the pleadings and arguments of counsel regarding the imposition of sanctions, this Court finds and concludes as follows: FACTS On March 2, 1986, this Court approved the sale by the trustee of the OSO ra...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION THE MATTER under consideration is a consolidated adversary proceeding instituted by S.T. Patrick and N. Patricia Patrick, Debtors in Chapter 11 Case No. 85-3521 (Patricks) and by John and Edna Burkey, Debtors in Chapter 11 Case No. 85-3520 (Burkeys) (referred to collectively as Debtors). On December 3, 1985, the Debtors filed se...
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ORDER ON MOTION TO DISMISS CHAPTER 11 PROCEEDING WITH PREJUDICE THE MATTER under consideration is a Motion to Dismiss Chapter 11 Proceeding with Prejudice filed by Goldome Savings Association (Goldome), a creditor in the above-captioned case. Goldome seeks an order dismissing the bankruptcy case under § 1112(b) of the Bankruptcy Code for “cause” claiming that Four J’s Leasing & Rentals, I...
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ORDER ON MOTION FOR REHEARING THE MATTER under consideration in this Chapter 7 case is a Motion for Rehearing filed by George Hadley, trustee of the Chapter 7 estate (Trustee). The Trustee seeks a rehearing of this Court’s Order on Trustee’s Objection to Exempt Property Listed by Debtor, entered on July 29, 1986, in which this Court overruled the Trustee’s objection to the Debtors’ claimed exem...
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FINDINGS OF FACT, CONCLUSIONS OF LAW and ORDER ré: Section 507(b) Superpriority Claim The matter before the Court is the application of Federal Land Bank of Omaha (Land Bank) for allowance of administrative claims pursuant to 11 U.S.C. Section 507(b). This is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(B). Having considered all pleadings and briefs, the Court makes the following...
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ORDER ON DEBTOR’S MOTION THAT COURT APPOINT A COMMITTEE OF STATUTORY LIEN CREDITORS The Debtor moves that the Court order the appointment of a committee of statutory lien creditors consisting of the Town of Lenox and certain creditors having “potential liens” under MASS.GEN.L. ch. 254 pertaining to liens upon real estate for the furnishing of labor or materials in the erection or alteration of ...
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Dorothy Pinori, a secured creditor in this Chapter 11 case, has moved pursuant to 11 U.S.C. § 362(d) to vacate the automatic stay so that she might proceed with her state court foreclosure action against an unimproved parcel of land owned by the debtor, Dino & Artie’s Automatic Transmission Co., Inc. The debtor seeks the benefit of the automatic stay in order to object to Mrs. Pinori’s claim wh...
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OPINION The instant adversarial proceeding was initiated by the Debtor-mortgagor against the holder of the first mortgage on her residential real estate to reduce the amount of the mortgagee’s secured claim, based upon alleged violations of the federal Truth-in-Lending Act and Regulations in the mortgage transaction documents and a contention that the attorney’s fees sought by the Mortgag...
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OPINION AND ORDER This matter is before the court on the motions 1 by Manuel Safón Ochart, d/b/a The Shuck Inn, the debtor herein, to enjoin Antonio Luis Diaz and his attorneys from evicting debtor from the premises he allegedly leases to operate his business. Mr. Antonio Luis Diaz is the owner and landlord of the premises. The relations between debtor and Mr. Diaz, as well as ...
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MEMORANDUM OF DECISION AND ORDER ON COMPLAINT TO DETERMINE VALIDITY OF SECURITY INTEREST IN UNEARNED INSURANCE PREMIUMS Borg-Warner Insurance Finance Corporation (“BWIFC”) seeks a determination that it has a valid, perfected, and enforceable security interest in a $133,919.00 escrow fund, created pursuant to the order of this court in recognition of the fact that unearned premiums from th...
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ORDER ON MOTION FOR REHEARING OF FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTERS under consideration are a Motion for Rehearing of Findings of Fact, Conclusions of Law, and Memorandum Opinion filed by the Third-Party Defendants, David Stempler (Stempler) and Southern International Airways, Inc. (SIA) and a Motion for Rehearing filed by the Defendant/Third-Party Plaintiff, ...
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OPINION AND ORDER The facts of this matter are not in dispute. The Defendant made a loan to the debtors, and as security for the loan the debtors gave the Defendant a security interest in the debtors’ 1985 com crop, along with all proceeds from the crop. The debtors sealed the 1985 com crop in the federal government’s grain program which entitled them to a deficiency payment for the 1985 crop year...
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MEMORANDUM OPINION DENYING MOTION OF NBD MORTGAGE COMPANY TO STRIKE ASSETS FROM SCHEDULES The question is this: may a limited partnership be dissolved and terminated and the business continued by the lone remaining partner, by individually settling with the limited partners and not by liquidating the assets of the partnership? The facts of this case are not in dispute. On April 1, 19...
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FINDING AS TO MODIFICATION OF PLAN On April 21, 1981 Anna L. Eves filed a petition under chapter 13 of title 11 of the United States Code. A summary of the chapter 13 plan was filed the same day, proposing a weekly payment of $25.00 to fund a seventy percent distribution to unsecured creditors and to pay secured creditors outside the plan. On May 18,1981 the court entered an order for [we...
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Plaintiff, D. Broward Craig, Trustee (“Trustee”), seeks to recover from the defendants Alchemist Investment Corporation (“Alchemist”), Beachside II Associates, Ltd. (“Beachside”), and Sea’Palms Beach Club Associates, Ltd. (“Sea Palms”) repayment of five purported loans made by West Knoxville Investment Company, Inc. (“West Knox”) as follows: Date Transferee Amount • September 19, 1982 Alchemist $1...
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MEMORANDUM The question in this adversary proceeding is whether Security Federal and Warren County Bank perfected their mortgage liens on property belonging to one of the debtors, Josephine G. Hill. The question arises because the deeds of trust were recorded but were not indexed under the name of Josephine G. Hill. They were indexed under the name of her husband, William A. Hill, who joined in t...
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I The Debtors appeal from a ruling that their liability for 1979 and 1980 income taxes is not discharged. Paraphrasing 11 U.S.C. § 523(a)(1)(A), a debtor who has filed non-fraudulent tax returns may discharge tax liabilities except for amounts due within three years prior to the date of filing. In this case the Debtors were in a Chapter 13 case for almost three years before dismissing...
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MEMORANDUM DECISION AND ORDER RE: MOTION TO ESTIMATE CLAIM On October 8, 1986, debtor filed a Motion to Estimate Claim. A Written Notice of Objections to Motion to Estimate Claim was filed by Creditors Leon Richardson, Margie Richardson, and Copthorne N.V. (“Richardsons”) on October 23, 1986. Bettie Lane filed a memorandum in support of the motion on October 24, 1986. A hearing was h...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION TO CONVERT On September 24, 1986, the United States of America (“Movant”) filed its Motion to Convert to Chapter 7 Proceeding, or in the Alternative, to Dismiss. Present at the hearing held on October 24, 1986, were Carol Muranaka, Esq. for Movant, Tod Ta-naka, Esq. for Bank of Hawaii and Edward Kemper, Esq. for James Burnette Wood and Sh...
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DENIAL OF SUMMARY JUDGMENT This matter is before the court on a motion for summary judgment filed by defendant. Plaintiff has filed a memorandum in opposition thereto. There have been no requests for oral argument on the motion. Since the court does not see how argument could illumine the problems discussed below, it is appropriate to proceed with a decision on the motion under Rule 10(g) of the L...
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OPINION AND ORDER Plaintiffs in this adversary proceeding are stockholders of D.C. Sullivan and Co., Inc. (the “Debtor”) and successors in interest to the Debtor’s rights in certain real estate. On May 22, 1970, creditors of the Debtor filed with this Court an involuntary bankruptcy petition under the Bankruptcy Act of 1898 as amended, 11 U.S.C. § 1 et seq. (repealed 1978) (the “prior Act”). The C...
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MEMORANDUM The issue in these cases is whether the court should abrogate certain rules of procedure which were adopted in this jurisdiction in November of 1981. In 1981, the bankruptcy court in this jurisdiction was approached by the Internal Revenue Service (“IRS”) and encouraged to adopt a uniform rule of procedure governing the disbursement of tax refund checks to Chapter 13 debtor...
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MEMORANDUM OPINION AND ORDER This adversary complaint comes before the Court to be ruled on the pleadings and briefs submitted. Since there is no substantial factual dispute, the rather complicated background will be stated as briefly *923 as possible. Debtor purchased a Chrysler-Plymouth dealership in Brookings, South Dakota in July of 1972, and the debt involved here arose therefrom. In 197...
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OPINION The debtor, Elsinore Shore Associates, f/k/a Playboy Elsinore Associates, a New Jersey partnership, d/b/a The Atlantis Casino Hotel, (ESA), has filed a motion for reconsideration of this Court’s denial of ESA’s motion for summary judgment on the First Count of its Complaint against First Fidelity Bank, N.A., South Jersey (First Fidelity Bank) and for other relief seeking in the al...
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*604 DECISION AND ORDER This matter came to be heard on the motion of Koch Fuels, Inc. (Koch) to file a late proof of claim. The motion is hereby denied. FACTS 1. This case was commenced on March 4, 1982 by the filing of an involuntary petition against the debtor by three creditors. 2. On March 9, 1982, unaware that the case had been converted to a reorganization under chapter 11, Koch ...
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MEMORANDUM AND ORDER Each of the above cases are Chapter 11 cases commenced prior to November 26, 1986, the effective date of the Bankruptcy Judges, United States Trustees and Family Farmer Bankruptcy Act of 1986. Pub.L. 99-554 (the “Act”). Tomlin Farms’ Chapter 11 petition was filed April 2, 1984, Johnson’s Chapter 11 petition was filed on March 28, 1985, and Kingsleys’ was filed on Octo...
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MEMORANDUM OPINION This matter comes before the court upon the motion of Carvalho Industries, Inc., the alleged debtor herein, for dismissal of the involuntary petition filed herein or, in the alternative, for summary judgment. This case was commenced on April 16, 1986, by the filing of an involuntary petition seeking an order for relief under Chapter 7 of the Bankruptcy Code against Car-valh...
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This is an adversary proceeding to determine the dischargeability of a debt under 11 U.S.C. 523. The debt is evidenced by a state court judgment that has been rendered in favor of plaintiff, against defendant. Plaintiff contends that the debt arises from fraud or defalcation while acting in a fiduciary capacity, embezzlement, larceny, or willful and malicious injury by the defendant to the plainti...
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MEMORANDUM The question presented is whether a Chapter 13 debtor may cure the default and assume a residential lease where judgment for unlawful detainer has been entered prior to the petition but no writ for possession has been served upon the debt- or. 1 I find that execution of a writ of possession marks the point after which a debtor may not rehabilitate a residential lease...
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OPINION Before ELLIOTT, VOLINN and ASHLAND, Bankruptcy Judges. This appeal is taken from a judgment determining the ownership and lien interests in three parcels of land and authorizing the sale of that land free and clear with certain liens to attach to the proceeds. Appellants are Mr. and Mrs. Probasco, Mid Valley Time Loan, Robert Arnold, the disbursing agent under the confirmed p...
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OPINION The debtors appeal from an order dismissing their bankruptcy case. The bankruptcy judge dismissed the Kellys’ Chapter 7 case pursuant to 11 U.S.C. § 707(b) after determining that their debts were primarily consumer debts and that granting relief to them would be a substantial abuse of Chapter 7. In re Kelly, 57 B.R. 536 (Bankr.D.Ariz.1986). The Kellys raise the followin...
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ORDER ON MOTION FOR JUDGMENT ON PLEADINGS THIS IS a Chapter 7 case, and the matter under consideration is a Motion for Judgment on the Pleadings, filed by Richard L. Shaw, the Plaintiff, who instituted this adversary proceeding. The Complaint is filed against Walter E. Smith, Defendant, and seeks a determination by this Court that an obligation of the Debtor admittedly due and owing to the Defe...
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ORDER GRANTING STAY PENDING APPEAL The trustee filed adversary complaints against Mr. Elroy Ardoin, and City Bank and Trust Company of New Iberia, Louisi*8ana to recover money and avoid a preferential transfer. After trial on August 11, 1986, Bankruptcy Judge Rodney Bernard on August 29, 1986, signed judgments in favor of the trustee and against Mr. Ardoin and City Bank and Trust Company in the a...
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OPINION Before the Court is a motion identified as “pursuant to 11 U.S.C. § 362(h),” made by the Chapter 11 debtor, Elegant Concepts, Ltd. (“Elegant” or “the debtor”), against John C. Dougherty and Susan E. O’Grady-Dougherty (“respondents”). The debtor seeks an order finding a deliberate violation by the respondents of the automatic stay provision of 11 U.S.C. § 362(a), and requests a...
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*40 DECISION ON MOTION FOR AN ORDER CONVERTING CHAPTER 11 CASE TO CHAPTER 7, OR IN THE ALTERNATIVE DISMISSING CHAPTER 11 The United States trustee has moved for an order pursuant to 11 U.S.C. § 1112(b) converting this Chapter 11 case to a case under Chapter 7 of the Bankruptcy Code, or in the alternative, for an order of dismissal. The debtor, D & F Meat Corp., originally ow...
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MEMORANDUM OPINION Presently before this Court is the Debtors’ Motion To Avoid Liens held by the *910 Defendant, Equibank. The parties have stipulated to the fair market value of the Debtors’ residence. The issue to be determined is whether the anticipated costs associated with the sale of a residence, including a broker’s commission and transfer taxes, must be deducted from the fair market v...
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MEMORANDUM OPINION This adversary proceeding involves two distinct and unrelated issues: equitable subordination and a mechanic’s lien. The plaintiff, Jordan & Nobles — El Paso, Inc., was the general contractor for a building known as Medical Point Imaging Center. 1 Defendant, Commonwealth Mortgage Company was the construction lender. The Debtor has long since disappeared from ...
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Debtor, Cardinal Enterprises, appeals the decision of the bankruptcy court that denied its motion to set aside a foreclosure sale as a fraudulent transfer under § 548(a). Debtor also argues that defendant was estopped from holding the sale because debtor relied on previous postponements of the date of sale. Debtor also argues that defendant breached a fiduciary duty it owed to debtor when it he...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 7 adversary proceeding is a Motion for Summary Judgment filed by Tambay Trustee, Inc., (Trustee) on its Complaint to Determine Extent and Validity of Liens claimed by Agricultural Asset Management Company, Inc., (AG Asset), *33 the Defendant, on properties of the estate. The Trustee maintains there are no genu...
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MEMORANDUM OPINION AND ORDER Paul D. Roberts (plaintiff) filed this adversary proceeding to declare the alleged debt of Dorothy Lee Dotson (defendant) to him to be nondischargeable under Section 523. Plaintiff's Complaint was filed on October 14, 1986. Debtor’s petition was filed on December 23, 1985; her Section 341 meeting held on March 19, 1986, and the last date for filing complaints as to di...
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MEMORANDUM FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF FINAL JUDGMENT DISMISSING COMPLAINT WITHOUT PREJUDICE TO ITS REINSTATEMENT, FOR DETERMINATION OF DISCHARGEABILITY VEL NON, IF AND WHEN A STATE COURT JUDGMENT IS RECOVERED AND ORDER GRANTING PLAINTIFF ANY RELIEF FROM THE AUTOMATIC STAY WHICH MAY BE NECESSARY TO HER PROSECUTING THE STATE COURT ACTION This is an action brought by t...
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In these adversary proceedings the trustee seeks to avoid five transfers to the defendants totaling $51,000.00. 11 U.S. C.A. §§ 544(b), 548, and 549 (West 1979). This court has jurisdiction pursuant to 28 U.S.C.A. §§ 1334(b) and 157(a) (West Supp. 1986). This is a core proceeding. 28 U.S. C.A. § 157(b)(1) (West Supp.1986). I Defendants Karl A. Schledwitz (“Schled-witz”) and the law fi...
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OPINION This appeal is concerned with the fixing of attorney fees, a most sensitive and difficult area of effort frequently involving bankruptcy judges. 1 The “Bank Group,” secured creditors, appeals from the bankruptcy court’s order awarding fees of $64,298.25 pursuant to 11 U.S.C. § 330 to the attorneys for the Committee of Creditors Holding Unsecured Claims (Creditors’ Com...
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ORDER ON RENEWED MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR CONTEMPT THIS IS a Chapter 7 liquidation case, and the matter under consideration is a Renewed Motion for a Temporary Restraining Order filed by special counsel for the estate, Mr. Jawdet Rubaii. Mr. Rubaii also filed a Motion for Contempt against the defendants named in the above-captioned adversary proceeding. At the duly sc...
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ORDER DENYING MOTION OF STAPLES MANAGEMENT The motion (C.P. No. 19) of Staples Management, Inc., to defer dismissal of this case, to redesignate the representative of the debtor-in-possession, to extend time for a plan, and to compel compliance with a discovery order directed to the debtor’s president, was heard on December 8. It is denied. Staples claims to be the 51% owner of a corporation which...
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ORDER Presently before the Court is plaintiff-trustee’s motion for partial summary judgment upon Count III of his complaint. This count seeks recovery of certain funds which were subjected to tax assessments and levy by defendant United States of America, on behalf of its agency the Internal Revenue Service (“IRS”). Plaintiff alleges that these actions constitute preferential transfers avoidable ...
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MEMORANDUM OPINION This is an action instituted by the trustee of Bart Lincoln Mercury to avoid a security interest of the Michigan National Bank in property of the estate of the debtor. The facts have been stipulated and are as follows: 1. Debtor Bart Lincoln Mercury, Inc. (“Bart Lincoln Mercury”) is a Michigan corporation, formerly having offices at 3400 East Jefferson Avenue, Detroit, Michigan....
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MEMORANDUM OPINION This adversary proceeding was tried before the court on June 24, 1986 and at a *907hearing on August 18, 1986 at which time the court’s receipt of evidence was completed and the court heard the parties in oral argument. The trial proceeded on the plaintiffs Objection and Complaint as to Dischargeability, as amended, and as modified by this court’s pre-trial order of February 11,...
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This preference action arises out of the notorious Candor Diamond Corp. (Candor) bankruptcy. After stipulating with the defendant, Navaro Gem, Ltd. (Navaro) as to the transactions which occurred between it *590 and Candor, Candor’s bankruptcy trustee (Trustee) rested, relying on the presumption of insolvency. 1 Navaro contends, among other things, that the Trustee has fa...
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ORDER FOR RELIEF UNDER CHAPTER 7, DENYING CONVERSION TO CHAPTER 11, DENYING TRUSTEE’S MOTION TO DISMISS CASE, OVERRULING REQUESTS FOR SANCTIONS, AND OTHER MATTERS This matter is before the Court, upon the debtor’s motion seeking to convert this *18Chapter 13 case to one under Chapter 11 or, in the alternative, consenting to conversion to Chapter 7, and upon the Chapter 13 trustee’s motion seeking ...
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MEMORANDUM ORDER DENYING APPROVAL OF A REAFFIRMATION AGREEMENT Debtors have requested Court approval of an agreement to reaffirm their $2,890.44 unsecured debt to the Chase Manhattan Bank, N.A. (“Bank”). The Debtors entered into the reaffirmation agreement in order to settle a discharge-ability claim by the Bank. The amount reaffirmed equals the sum that the Debtors charged to their Bank credit...
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OPINION The matter before the Court is the Debt- or’s Motion to Avoid a Non-Possessory, Non-Purchase Money Security Interest in a mobile home (the “Motion”). The lienholder is Signal Consumer Discount Company (“Signal”). The Debtor seeks to avoid the lien under Bankruptcy Code § 522(f)(2)(A). Debtor argues that the mobile home is “... household furnishings, household goods ...” as those terms a...
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MEMORANDUM OPINION Presently before the Court are Plaintiffs’ and Defendant’s cross-Motions for Summary Judgment. The issues to be determined are as follows: 1. Is the application of Pennsylvania’s Wage Payment and Collection Law (“WPCL”), Pa.Stat.Ann. 43 § 260.1 et. seq. (Purdon’s), preempted by the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 141 et. seq.; ...
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MEMORANDUM The debtor, Chattanooga Wholesale Antiques, filed a chapter 11 bankruptcy petition and had a plan of reorganization confirmed, but was unable to complete the plan. The case was converted from chapter 11 to a chapter 7 liquidation. The plaintiff was appointed trustee in bankruptcy. He seeks to recover payments that the debtor made to the defendant, Rossville Bank, both before th...
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MEMORANDUM OPINION AND ORDER RE: COMPLAINT OF FARMERS STATE BANK SEEKING DECLARATORY JUDGMENT AS TO PRIORITY OF HOG SALE FUNDS AND CROSS-COMPLAINT OF INTERVENOR, UNITED STATES OF AMERICA, TO DETERMINE THE NATURE, EXTENT, AND PRIORITY OF LIENS At issue is whether Farmers State Bank (the Bank) possesses a security interest in the proceeds realized from the sale of 110 hogs formerly belonging to the ...
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ORDER DENYING MOTION TO DISMISS Came on for consideration on October 17, 1986, the Motion to Dismiss of James P. Corcoran, Superintendent of the Insurance of the State of New York (Superintendent), and after considering the memoranda of authority and the argument of counsel the Court enters the following Order: This adversary proceeding in the nature of interpleader was filed by Mich...
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ORDER DENYING REHEARING (LEVIN & WEINTRAUB) The debtors’ New York Co-Counsel, Lev-in & Weintraub, have moved for rehearing and reconsideration (C.P. No. 2184a) of the Order on Fee and Expense Applications (C.P. No. 2163). The Order is based upon a Memorandum Decision — Fee Applications dated October 20, 1986 (C.P. No. 2058). The motion is supported by an affidavit (C.P. No. 2184b) and by ...
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*17 MEMORANDUM AND ORDER The trustee commenced this adversary action on September 11,1986, seeking turnover of proceeds of the debtors’ 1985 crop. Basing his complaint upon sections 544 and 545 of the Bankruptcy Code, the trustee claims an interest paramount to all others including that of the debtors’ landlord upon whose land the crop was grown. Cargill did not file an answer. FDIC and the d...
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ORDER GRANTING DEBTOR’S APPLICATION FOR CHANGE OF VENUE I. With its petition under Chapter 11 of the Bankruptcy Code, the debtor filed an application for change of venue, contending that the case should be transferred to the Bankruptcy Court in the Northern Division of the Eastern District of Michigan, located at Bay City, Michigan. Specifically, the debt- or contends that venue in the Northern D...
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MEMORANDUM OPINION This matter came before the Court on October 2, 1986, for trial on the merits of debtor’s complaint for declaratory judgment and equitable relief. At that time, the Court ordered the complaint dismissed with prejudice as against Sheriff Coussons. The only issue remaining is the legal effect of the document executed by debtor purporting to withdraw debtor’s waiver of exemption an...
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*227 MEMORANDUM OF DECISION This matter came before the Court on the Complaint of the Plaintiffs, Maxine Rooks and Malium Rooks. The plaintiffs’ complaint specifically requested that the title to certain real property located in Madison County be cleared and that this Court determine the validity and priority of certain liens which might attach to said property. The following sha...
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MEMORANDUM OF DECISION The matter before the court is the complaint of the debtor, Peter D. Ottaviano, for the return “for the benefit of [the] estate” of $2,900.00 received by the defendant, So-rokin & Sorokin, P.C. (hereinafter “Soro-kin”). The complaint asserts three causes of action: a fraudulent transfer to Sorokin avoidable under 11 U.S.C. § 548; knowing receipt by Sorokin of embezz...
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OPINION AND ORDER This matter came on to be heard on the Debtor’s Motion to Dismiss the involuntary petition filed by four creditors. The basis of the Debtor’s Motion is that under Section 303(a) of the Bankruptcy Code an involuntary proceeding cannot be commenced against a farmer, and the Debtor is a “farmer” within the definition of that term as found in Section 101(17) of the Bankruptcy Code...
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ORDER The above entitled matter came on for hearing before me on the motion of The First National Bank of Osakis (Bank) for dismissal of the debtors’ chapter 13 case. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157(b)(1) and Local Rule 103(b). This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (K) and (O). The Bank alleges that the debtors are...
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MEMORANDUM OPINION FINDINGS OF FACT (1) Jerry Juenger and Elmer Tonsing at one time were stockholders of National Service Lines, Inc. (“National”). A dispute arose between them and National resulting in state court litigation which was resolved by an agreement executed April 6, 1984, styled “Agreement and Security Agreement” (the “Agreement”). (2) Paragraph 10 of the Agreement s...
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OPINION The within matter arises as a result of a suit by Chase Manhattan Bank, N.A., Fidelity International Bank and Girard International Bank seeking a judgment denying the debtor a discharge pursuant to the provisions of 11 U.S.C. § 727. The cause is based upon the conduct of the debtors and the intentional withholding of information material to the administration of the estate, the fa...
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OPINION On June 20, 1985 the individual debtor, Francis J. Walsh, Jr., d/b/a Frank Walsh Financial Resources, filed a petition pursuant to Chapter 11 of the Bankruptcy Code. On March 12, 1986 the Court authorized the appointment of a trustee for the debtor. Raymond T. Lyons, Jr. was appointed trustee and began functioning in such capacity on April 25, 1986. A hearing was held pursuan...
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This report responds to two orders issued by the Honorable Jack B. Weinstein which deal with the motion of the defendants a) pursuant to 28 U.S.C. § 157(d) to withdraw the reference and, in effect, remove this adversary proceeding to the district court; and b) for abstention pursuant to 28 U.S.C. § 1334. *158 The first such order, dated August 8, 1986, refers to the undersigned fo...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. The parties have agreed that the disposition of this case is, by operation of law, dependent upon the outcome in Hunter v. Babcock (In re Babcock Dairy Co. of Ohio, Inc.) 70 B.R. 657 (Bkcy.N.D.Ohio 1986). ...
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*675MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. The parties have agreed that the disposition of this case is, by operation of law, dependent upon the outcome in Hunter v. Babcock (In re Babcock Dairy Co. of Ohio, Inc.) 70 B.R. 657 (Bkcy.N.D.Ohio 1986). Pursuant to tha...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. The parties have agreed that the disposition of this case is, by operation of law, dependent upon the outcome in Hunter v. Babcock (In re Babcock Dairy Co. of Ohio, Inc.) 70 B.R. 657 (Bkcy.N.D.Ohio 1986). Pursuant to that ag...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. The parties have agreed that the disposition of this case is, by operation of law, dependent upon the outcome in Hunter v. Babcock (In re Babcock Dairy Co. of Ohio, Inc.) 70 B.R. 657 (Bkcy.N.D.Ohio 1986). ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. At Trial, the parties had the opportunity to present any evidence and arguments they wished the Court to consider relative to the merits of this case. The Court has reviewed the evidence, the arguments, and the entir...
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MEMORANDUM OPINION, PROPOSED FINDINGS OF FACT, AND CONCLUSIONS OF LAW This cause comes before the Court upon the Motion For Withdrawal of Reference filed by the Defendant in the above entitled adversary action, and the Order Of Reference entered by the United States District Court for the Northern District of Ohio, Western Division. Pursuant to the Order Of Reference, this Court is to sub...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Summary Judgment filed by the Trustee in the above entitled adversary action. The parties have filed their arguments respecting the merits of this Motion and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the entire record in ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Avoid Preferential Transfers filed by the Plaintiff in the above entitled action. The parties have agreed that the disposition of this case is, by operation of law, dependent upon the outcome in Hunter v. Babcock (In re Babcock Dairy Co. of Ohio, Inc.) 70 B.R. 657 (Bkcy. N.D.Ohio 1986). Pursuant to that a...
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Heard on September 11, 1986 on the trustee’s objection to that portion of the Internal Revenue Service’s (IRS) claim filed as a secured claim. The trustee objected to the claim as secured, and when no response to the objection was filed an order entered on May 30, 1986, disallowing the claim as secured, and allowing it as a general unsecured claim. The IRS moved for reconsideration, and by our or...
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Heard on November 3, 1986 on the complaints of Carmela Patalano and Howard Lipsey, Esq., pursuant to 11 U.S.C. *31§ 523(a)(5) to determine the dischargeability of certain debts.1 The issue is whether an order for payment of $160 per week by the debtor to his former spouse, provided for in a final decree of divorce entered by the Family Court on April 26, 1982, is alimony, and therefore nondischarg...
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MEMORANDUM OPINION The issue before the Court is the Debtors’ objection to the Trustee’s proposed abandonment of personal property as a part of this estate. The present controversy is one of a continuing series among the Debtors, Trustee, and Dominion Bank of the Cumberlands (Bank), creditor. The controversy first came before this Court upon a Complaint to avoid an alleged lien of th...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on a Complaint to determine the dischargeability of a debt pursuant to Section 523 of the Bankruptcy Code. Trial was held on July 2 and July 26, 1985. At the close of the testimony, the Honorable Jay Gueck ordered the parties to submit written closing arguments and took the matter under advisement pending the submission, by t...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of the Beninato Brothers to terminate the heretofore allowed adequate protection payments to the Main Bank for use of certain cash collateral in which the Bank alleges a security interest. This Court’s order of August 6, 1986 authorized payments to Main Bank for adequate protection as a secured creditor of the debtors-in-possess...
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MEMORANDUM AND ORDER ON DECISION BY THE COURT The instant proceeding comes before the Court upon the trustee’s Application to Disburse Proceeds of Sale and the objection thereto by the Marion County Board of County Commissioners. On February 18, 1985, the trustee filed an Application to Disburse Proceeds of Sale. Three objections were filed in response to the trustee’s application. T...
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ORDER DENYING MOTION FOR RECONSIDERATION I. Marion F. Goforth, a creditor, has filed a motion for reconsideration of an order denying his motion to extend the time within which to object to the discharge of the debtor, Henry T. Manuel. The motion was originally denied because it was not timely filed under Bankruptcy Rule 4004(b). After reviewing Goforth’s motion for reconsideration a...
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MEMORANDUM ORDER This matter is before the Court on the trustee’s objection to Debtors’ claimed exemptions. Appearances are as noted in the record. Based upon testimony at hearing, September 15, 1986, arguments and briefs of counsel and upon all the records and files herein, the Court now being fully advised in the matter makes this Order pursuant to the Federal and Local Rules of Bankruptcy Pr...
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OPINION Case Summary Travelers Indemnity Insurance Company filed a complaint against the defendants to avoid a post-petition transaction pursuant to § 549 of the Bankruptcy Code. The defendants responded with Rule 12(b) Motions to dismiss. After consideration of the arguments of counsel and the briefs of the *829 parties, we find that Travelers’ complaint fails to st...
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OPINION The issue for consideration is whether we should grant the motions of C-Way Enterprises, Inc. (“C-Way”) and CNA Continental Assurance Co., Inc. (“CNA”), to set aside default judgments entered against them on June 20, 1986. For the reasons set forth below, we conclude that the motions should be denied. The facts of this case are as follows: 1 On May 2, 1986, plaintiff Earle Industrie...
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OPINION AND ORDER The issue before us arises out of the claim of The Philadelphia Savings Fund Society (now named Meritor Savings Bank) for post-petition interest on its secured claim at the contract rate to the extent of its security. This question having been before us on four prior occasions (In re Robert A. Evans, 20 B.R. 175; In re Einspahr, 30 B.R. 356; In re McCall, 57 B.R. 642; In re Nesmi...
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OPINION The issue at bench is whether the withdrawal of funds deposited by prospective purchasers of the debtor’s assets into a bank account opened in the name of the debtor constituted a preferential transfer under 11 U.S.C. § 547(b) of the Bankruptcy Code (“the Code”). For the reasons set forth below, we conclude that the requisite *28elements of a preferential transfer under § 547(b) have not b...
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OPINION The significant issue before the Court in this matter is the allocation of the burden of proof between the Moving Party and the Debtor in a Motion seeking relief from the automatic stay pursuant to 11 U.S.C. § 362(d). Because we believe that the Moving Party has an initial burden to establish cause for relief under § 362(d), irrespective of the presence of 11 U.S.C. § 362(g)(2), a...
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OPINION The issue at bench is whether we should grant plaintiff-debtors’ motion for summary judgment and deny defendant’s cross-motion for summary judgment based on the defendant’s failure to meet certain disclosure requirements under the federal Truth in Lending Act, (“the TILA”), 15 U.S.C. § 1601-1667c and Regulation Z of the Federal Reserve Board, 12 C.F.R. § 226.1 et seq. For the reasons ...
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MEMORANDUM OPINION AND ORDER Sitting by Designation. This adversary proceeding came before the court on the defendant’s motion to dis *232 miss the complaint by the debtor-plaintiff seeking an order barring the defendant from seeking relief against the nondebtor officers and shareholders of the debtor corporation on their personal guarantees of certain debts of the debto...
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I. INTRODUCTION The debtor Georgia B. Walker (“Walker”) brings this adversary proceeding to set aside a foreclosure sale of real property, conducted in violation of the automatic stay, on the grounds that the purchaser failed to record his trustee’s deed until after the debtor had recorded a notice of the bankruptcy filing. The Court holds that, under the California race-notice recording ...
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ORDER DENYING MOTIONS TO STRIKE OBJECTIONS AND SUSTAINING IN PART OBJECTIONS TO PROOF OF CLAIM FILED BY AMERICAN FINANCIAL CORPORATION A group of claimants suffering from dioxin contamination and a certified class in the Charter securities litigation and individual members thereof object to the allowance of the stock redemption claim filed by American Financial Corporation. 1 T...
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ORDER THIS MATTER came on to be heard upon the debtor/defendant’s motion to dismiss the plaintiffs complaint to determine dischargeability. The motion to dismiss is based upon the alleged untimely filing of the complaint; the debtor asserts that the complaint was filed past the deadline specified by the Bankruptcy Rule 4007(c), and that no motion to extend the filing bar date was timely filed. ...
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ORDER THIS MATTER came on to be heard upon the motion of creditor Rosie O’Grady’s, Inc. to lift the stay and prohibit use of cash collateral. Upon due consideration of the record and argument of counsel, this court has determined that the motion to lift stay should be bound over for final hear*214ing, to be scheduled herein by subsequent notice. The creditor’s motion to prohibit use of cash colla...
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ORDER The above-entitled case was commenced by the filing of a Chapter 11 petition on July 11, 1985. The case was converted to Chapter 7 on March 10, 1986. Michael J. Iannacone was appointed trustee on March 11, 1986, and is now the duly qualified and acting interim trustee. The case is presently before the Court pursuant to Notice and Motion regarding approval of settlement agreements filed *522...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW Anthony Wise and Sheila Wise (Applicants) appear pro se and have filed a motion requesting an extension of the time to file an appeal and requesting a copy of a transcript at no cost. The court has duly considered the motion and it is the opinion of the court that the application should be denied. The applicants filed an appeal from the ...
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MEMORANDUM OPINION Debtor Robert J. Trigwell filed his Chapter 13 petition on August 21, 1986. At the confirmation hearing on October 6, 1986, Merit Home Loan Service Company (“Merit”), secured creditor, objected to confirmation on the following grounds: (1) the plan failed to provide interest on pre-petition arrearages pursuant to 11 U.S.C. § 1325(a)(5)(B)(ii); (2) the plan was filed in bad fa...
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ORDER Presently before the Court is plaintiffs motion for summary judgment in the above-styled proceeding. The present motion was filed on August 18, 1986 and defendant-debtor filed a memorandum in opposition October 2. The underlying complaint in this proceeding seeks a determination of nondischargeability regarding a certain debt owed by debtor in the amount of $1,500.00, pursuant to 11...
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ORDER SUSTAINING OBJECTION TO EXEMPTIONS Debtor claimed as exempt a vested interest of approximately $19,000 in a pension fund established under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Curtis 1000, Inc., debtor’s largest unsecured creditor, objected to the exemption. At a conference on November 17, 1986, after conclusion of briefing by the parties...
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MEMORANDUM AND ORDER The relevant facts underlying the controversy in the liquidation of the Debtors herein are not in serious dispute. Both proceedings have been in administration for an unusually long time with Blue Coal Corporation now approaching its 11th year. They have been marked by constant and sometimes lengthy litigation. James T. Haggerty, Esq. (Trustee) filed a Motion on ...
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MEMORANDUM OPINION Before the Court is the Complaint for Declaratory Relief of the United States Department of Energy (“DOE” or “the Government”) to determine the title to property in the possession of the Debtor, Reynolds Manufacturing Company (“Reynolds”). Reynolds obtained a Government *220 procurement subcontract (“the Subcontract”) through a Government management contrac...
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AMENDED ORDER RE STIPULATION OF SETTLEMENT On September 15,1986, after notice to all interested parties, the Stipulation of Settlement dated August 25 and 26, 1986, between the Co-Trustees and the Securities and Exchange Commission came on for hearing before this Court. Having considered the Stipulation of Settlement, the documents filed in response thereto, and argument and representations of co...
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ORDER DENYING DEBTOR’S MOTION TO DISMISS INVOLUNTARY PETITION The debtor’s motion (C.P. No. 22) to dismiss the involuntary petition filed in this case was heard on December 2. No answer was filed in response to the involuntary petition and on March 24, 1986 an order for relief was entered (C.P. No. 4). This motion was not filed until October 30, 1986, long past the time permitted for a motion...
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OPINION This is a Chapter 7 case in which the trustee is seeking a determination as to the extent of the estate’s interest in a 1972 Volkswagon automobile titled in the debt- or’s name. Also at issue is a lien on the vehicle in favor of Grace and Vernon Thom-sen, the debtor’s parents. The facts in this case are not disputed. The debtor is a single mother with two daughters. When the youngest ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the applications of MELVIN J. KAPLAN (“Petitioner”) in each of the above-entitled cases for the allowance of attorney’s fees as compensation for services rendered in the Chapter 13 proceedings of JAY W. LANIGAN and DENISE NAILING (“Debtors”). The Court indicated intent to allow such fees but make the same payable in installment...
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MEMORANDUM OPINION This adversary proceeding brings before the court the question of the characterization and present status of a real estate transaction involving the “OMNE Mall” located in Portsmouth, New Hampshire. The debtor-defendant operates and manages this “Factory Outlet” discount mall facility. On March 20, 1986 the debtor filed a Chapter 11 petition seeking reorganization ...
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OPINION The issue is whether this closed Chapter 7 estate should be reopened, and if reopened, whether Debtors’ motion for lien avoidance should be allowed or denied. The case was originally filed on July 26, 1982 and closed as a no-asset case January 5, 1983. On February 11, 1985, Debtors’ counsel filed its Motion to Reopen the case for the purpose of filing a Motion to Avoid Liens. That...
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MEMORANDUM OPINION Before this Court is a Motion For Relief From Automatic Stay, Objection To Claim Of Exemptions, and Motion To Withhold Granting Of Discharge brought by Mov-ants, Equitable Life Assurance Society Of America (hereinafter “Equitable Life”) and Westmoreland Mall, Inc. The Movants contend they hold a joint claim against Alice A. Bialon (hereinafter “Debtor”) and Franklin C. Bialon...
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OPINION ON MOTION FOR RELIEF FROM STAY Facts The Debtor, Rachael Cotterman, filed a petition for relief under Chapter 7 of the Bankruptcy Code on September 23, 1983. On or about August 31, 1981, Tri-Conti-nental Leasing Corporation (“Tri-Continen-tal”) obtained a judgment against W.A. Cotterman, the Debtor’s husband, who is not a debtor in this bankruptcy proceeding. The jud...
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MEMORANDUM OPINION AND ORDER Pending are two involuntary Chapter 7 petitions for relief. One is against James Investment Fund No. 1, Ltd. in Case No. 84-05153-H1. The other is against James Plaza Joint Venture in Case No. 84-05148. Both were filed on October 5, 1984, by the same petitioning creditors, Pleas Doyle Associates (“Pleas Doyle”), Haynes Whaley (“Haynes Whaley”), successors in, ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 11 case and the matter under consideration is a Complaint filed by Venice Western Motel, Ltd., d/b/a Venice Resort, Inc. (Debtor), the entity involved in the above-captioned adversary proceeding. The Complaint filed by the Debtor asserts two distinct claims against the Defendants, Venice Motor Inn, Ltd. (VMI) and Martin Rauch, the general p...
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MEMORANDUM DECISION This matter came before the court on September 8,1986 upon the trustee’s objection to debtor’s claim of homestead exemption. (C.P. No. 7). The debtor is a bookkeeper who earned about $300 a week dur *191 ing the past two years. Her marriage was terminated in 1986. She has minor children living with her. The debtor resides in an abode located within a munic...
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DECISION AND ORDER IN SUPPORT OF CERTIFICATE OF CONTEMPT Nana Daly’s Pub, Ltd. (hereinafter “debtor” or “Nana Daly’s”) filed a voluntary petition for relief under Chapter 11 on November 21, 1984. Susan von Ohlen (hereinafter “von Ohlen”) represented the debtor until she was substituted by Weiner & Silverman, Esqs. on February 18, 1986. *783 This opinion follows a motion brou...
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DECISION ON COMPLAINT SEEKING AN ORDER FOR A SHORTFALL CLAIMED DUE UNDER CONFIRMED PLAN The issues in this adversary proceeding arose out of a confirmed Chapter 11 liquidating plan of reorganization which gave the trustee the option, in lieu of a cash payment at distribution, to deliver immediately thoroughbred horses from this estate to a Saudi Arabian resident holding an allowed claim o...
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DECISION DENYING CONFIRMATION This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(L) in which the debtors seek confirmation of their proposed amended Chapter 13 plan. For the reasons set forth in this decision, the court DENIES confirmation of the proposed amended plan and GRANTS the debt...
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OPINION This adversarial proceeding raises certain procedural and substantive questions about the nature of a plea of setoff asserted by a defendant in a damage suit brought against it by a debtor in bankruptcy court. As to the procedural issue, we believe that it is prerequisite for the defendant, if he asserts any counterclaim arising from a pre-petition debt including a counterclaim in...
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MEMORANDUM OPINION AND ORDER The issue before me arises from the debtors’ request to extend the time within which the debtors alone may file a plan of reorganization and obtain acceptances, pursuant to 11 U.S.C. § 1121. Sections 1121(b) and (c) grant the debtors the exclusive right to file a plan of reorganization during the 120 days immediately after filing for bankruptcy and allow the d...
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OPINION This appeal and cross-appeal arise from an order of the bankruptcy court which overruled an objection to the debtor’s exemption of personal earnings and sustained an objection to the debtor’s attempt to exempt a pension and profit sharing plan. We AFFIRM. ISSUES PRESENTED 1. Are the debtor’s pension and profit sharing plans exempt under California Civil Code of Procedure Section 704...
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ORDER CONFIRMING DEBTOR’S SECOND PLAN A confirmation hearing was held October 20 on this chapter 11 debtor’s Second Plan (C.P. No. 282). The debtor’s major secured creditor has objected to confirmation (C.P. No. 335). The debtor has responded to that objection (C.P. No. 337). I find that the debtor has satisfied each of the requirements of 11 U.S.C. § 1129(a) except the requirement of subsection (...
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ORDER ON CLAIM NOS. 509 and 512 (IRS) The Liquidating Trustee has objected (C.P. No. 1419) to claim numbers 509 and 512 upon the ground that they were filed after the claims bar date. The objection was heard on November 10. The facts are not in dispute. On August 22,1984, the debtor, Holywell Corporation and four related entities filed bankruptcy petitions for relief under chapter 11. The deb...
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*575 MEMORANDUM DECISION AND ORDER RE: COMPENSATION FOR THE LAW OFFICE OF JOHN A. CHANIN AS COUNSEL FOR CREDITORS’ COMMITTEE On August 20, 1986, John A. Chanin, the Attorney for the Creditors’ Committee (“Applicant”), filed an application for compensation for services rendered and for reimbursement of costs. Applicant seeks $24,283.92 (including tax) in fees and $2,522.26 in cost...
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MEMORANDUM ORDER FOR SUMMARY JUDGMENT Motions for summary judgment brought by Plaintiff and for dismissal brought by Defendants were heard on October 8, 1986, in this adversary proceeding wherein Plaintiff seeks judgment against Defendants of nondischargeability of its debt pursuant to 11 U.S.C. § 523(a)(2)(A). Appearances were as noted in the record. Based upon arguments of counsel, depo...
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DENNIS D. O’BRIEN, Bankruptcy Judge. This adversary proceeding came on for trial October 23, 1986, on complaint of the Debtors seeking dischargeability of certain student loans owing the various named Defendants. Appearances are noted in the record. Based upon the testimony and exhibits heard and received at trial, pre-and-post-trial briefs, and upon all the records and files herein, the C...
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MEMORANDUM OPINION The Plaintiff in this proceeding, Pacific Western Bank, seeks to bar the discharge of the Debtor, Jesse A. Johnson, 1 pursuant to the provisions of §§ 727(a)(2), (a)(3), (a)(4) and (a)(5) of the Bankruptcy Code. 2 At trial, the Bank presented extensive evidence concerning the Debtor’s financial activities during the year proceeding the filing of th...
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MEMORANDUM OPINION Presently before the Court are the Defendant’s Motion to Dismiss this adversary proceeding, and Plaintiff’s Counterclaim requesting a determination of the status of this proceeding as either “core” or “related”. The specific issues before the Court are as follows: 1) Does this Court have in personam jurisdiction over a Defendant averring no minimum conta...
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MEMORANDUM OPINION Presently before the Court is Defendant’s Motion To Dismiss Plaintiffs Com *430 plaint; said Complaint requests the following relief: (1) turnover of property; (2) a declaration that Defendant’s lien is invalid; (3) punitive damages; and (4) an injunction against the violation of the automatic stay. Defendant moves to dismiss for lack of personal jurisdiction, lack of v...
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MEMORANDUM DECISION AND ORDER RE: MOTION FOR DETERMINATION OF PRIORITIES AND DISTRIBUTION OF PROCEEDS On October 10, 1986, Debtor filed a Motion for Determination of Priorities and Distribution of Proceeds, and an Amended Motion for Determination of Priorities and Distribution of Proceeds (“Motion”) on October 17, 1986. Round Table Franchise Corporation (“Round Table”) filed a memorandum conc...
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I The Appellant, Bank of Honolulu (“Bank”), appeals from an order of the Bankruptcy Court, which denied its motion for damages for the delay it encountered in receiving payment on its secured claim. The Bank’s claim had been secured by real property of the estate. This real estate was sold by the Chapter 11 trustee and the Bank was paid all principal and expenses, plus interest calculated ...
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OPINION The Unsecured Creditors’ Committee applies for authorization to employ two lawyers as its co-counsel. The application is opposed by the Debtor on the ground that employment of two lawyers (and their respective law firms) will involve a duplication of services which will cause unnecessary expense to the estate. The United States Trustee consents to the application on the condition ...
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MEMORANDUM OPINION AND ORDER This matter came on for trial on May 1, 1986, on the plaintiff’s, F.D.I.C., objection to the defendant’s, Felix William Maranzi-no, discharge under section 727, and on the plaintiff’s objection to discharge of several debts under section 523(a)(2)(A). The debt- or/defendant appeared in person and through his attorney, John T. Flannagan. The plaintiff appeared ...
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MEMORANDUM The matter before the Court is the complaint filed on August 21, 1985 by Pierina P. Travis (the “Debtor”) against the First National Bank of Marlboro (the “Bank”). Through her complaint, the Debtor seeks a determination of the amount of the Bank’s claim against her estate. More specifically, the Debtor seeks a determination that she is not liable to the Bank for any deficiency ...
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MEMORANDUM The matter before the Court is Adcom, Inc.’s (“Adcom” or the “Debtor”) objection to the proof of claim submitted by its only creditor, the Commonwealth of Massachusetts, Department of Revenue (“DOR”). The DOR filed its proof of claim in this proceeding on November 13, 1985. The DOR seeks $110,883.88 for unpaid sales tax assessed in March of 1985. The Debtor maintains that it is not subj...
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ORDER Following the conclusion of the hearing on November 4, 1986 on the adequacy of the disclosure statement filed by the Chapter 11 trustee with regard to the first pending plan of reorganization in this case — being a “Joint Plan” submitted by the trustee, the Creditors’ Committee, and Columbia University — certain general partners of the above-named debtor partnership, i.e., *413 MHAC New...
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DECISION AND ORDER ON MOTION AND CROSS MOTION FOR SUMMARY JUDGMENT In the instant adversary proceeding, the United States Trust Company (“USTC”) seeks to have a state court judgment against John Martonak (the “Debtor” or “Martonak”) declared non-dischargeable. In 1984, Martonak, pled guilty to criminal charges that he had embezzled a bond and check from USTC where he worked as a security ...
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OPINION The Court’s previous opinion in this matter, In re Family Showtime Theatres, Inc., 58 B.R. 679 (Bankr.E.D.N.Y.1986) (“Family Showtime I”), left for resolution the issue of whether the debtor had proceeded with due diligence to cure its default under its lease after receiving its landlord’s Notice of Default. If it did not, its lease terminated pre-petition upon transmit...
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MEMORANDUM DECISION INTRODUCTION This matter is before the Court on a complaint to avoid a preferential transfer filed by Chapter 7 Trustee A. Thomas Pokela (“Trustee”) on September 3, 1986. Trustee substantively alleges that: 1) Garry Lynn Jespersen’s (“Debtor’s”) $1,500 payment to Barclays American/Financial, Inc., on an unsecured promissory note 79 days prior to petition filing constitutes...
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MEMORANDUM The debtor, Concorde Limited Partnership, has one asset, the Concorde apartments. Likewise, Seminole Ridge Limited Partnership owns the Seminole Ridge apartments. The debtors bought the apartments indirectly from the plaintiffs, Parker and Mabry. In this proceeding, Parker and Mabry ask for relief from the automatic stay so that they can foreclose on the apartments. The pl...
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MEMORANDUM ON FEDERAL DEPOSIT INSURANCE CORPORATION’S MOTION TO DISMISS Plaintiff Thomas E. DuVoisin is the liquidating trustee of a trust established under the modified plan of reorganization confirmed by this court in the Southern Industrial Banking Corporation (SIBC) case. The assets of the trust include approximately $26,000,000.00 in commercial loans, claims based on preferential tra...
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MEMORANDUM OPINION REGARDING POST-PETITION INTEREST This matter came before the Court on October 17, 1986. The Court, having heard the arguments of counsel and having reviewed all briefs, makes the following findings of fact and conclusions of law. Background The question before the Court is whether or not the Internal Revenue Service (“IRS”) is entitled to post-petition interes...
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MEMORANDUM OPINION Before the court is the complaint of the United States, on behalf of the Internal Revenue Service (“IRS”), requesting principally that the court declare nondischargeable under 11 U.S.C. § 1328(a) a portion of the IRS’s tax claim, as reflected in its amended proof of claim, that was not paid under the confirmed Chapter 13 plan of the debtor, Margarita P. Vlavianos (the “debt- ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court on September 3, 1986 upon the *1022 Trustee, Marika Tolz’s Complaint to Recover Preferential Transfer pursuant to 11 U.S.C. § 547 with the Court having examined the evidence presented, heard the testimony, observed the candor and demeanor of the witnesses, considered the arguments of counsel and being otherwise fu...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial on October 1, 1986, upon an Adversary Complaint filed by Plaintiff, KENNETH MILLER (“MILLER”), objecting to the discharge-ability of a debt, pursuant to 11 U.S.C., § 523(a)(2)(A). The Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses, considered the pl...
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AMENDED ORDER REQUIRING DEBTOR’S ATTORNEYS TO RETURN EXCESSIVE ATTORNEY FEE PAYMENT TO THE TRUSTEE I. With its Chapter 7 petition, the debtor filed a statement by its attorneys disclosing that the attorneys had been paid $10,000 in fees. Because this fee is unusually high, the Court entered an order for the examination of this fee and scheduled a hearing. In response, the debtor’s co...
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MEMORANDUM OPINION FINDINGS OF FACT (1) On July 8, 1985, Plaintiff, United Missouri Bank of Paris (the “Bank”), filed a Complaint against the Debtors. The Bank requested the Court to determine that certain of Debtors’ obligations to it were excepted from discharge under 11 U.S.C. § 523. (2) By leave of Court, the Bank amended its Complaint on September 16, 1986, and joined as a party defendant La...
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ORDER OVERRULING MOTION FOR RELIEF FROM STAY AND OVERRULING MOTION TO DISMISS This matter is before the Court upon a motion seeking relief from stay filed by Associates Commercial Corporation (“Associates”) and upon the trustee’s motion to dismiss this case. The motions relate to the pending Chapter 13 case of the debtor, Eugene D. Durben, and were heard separately by the Court. The debtor ha...
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OPINION Presently before the Court is an Application of Sprague, Thall & Creamer (hereinafter “the Creditor”), for attorneys’ fees and costs from Edward R. Woemer (hereinafter “the Debtor”), a former client, pursuant to an Opinion and Order entered on April 29,1985, by the Honorable William A. King, Jr., of this Court. Judge King’s Order found the Debtor in contempt for the Debtor’s viola...
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MEMORANDUM OPINION AND ORDER Before the Court is the “Motion to Avoid Lien” that Patricia Ann Franklin, Movant, filed with the Court on July 11, 1986. In Movant’s motion, she seeks to avoid the security interest that ITT Financial Services, Respondent, holds in a four-piece Thom-asville wall unit. The parties stipulate that the only issue for the Court to decide is whether Respondent’s se...
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ORDER DENYING DEBTOR’S MOTION TO MODIFY CONFIRMED PLAN OF REORGANIZATION I. In this Chapter 11 proceeding, the Court confirmed the debtor’s plan of reorganization on March 13, 1986. The plan became effective on March 24, 1986. Article IV of the confirmed plan allowed the debtor 60 days after confirmation to object to timely claims. Central States, Southeast and Southwest Areas Pensio...
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DECISION ON TRUSTEE’S ACTION TO RECOVER A PREFERENTIAL TRANSFER This somewhat unusual preference action results from rental payments made by a tenant into an escrow account pursuant to order of the Civil Court of the City of New *367 York. The tenant is now a chapter 7 debt- or, his previously filed chapter 13 case having been converted. He had deposited some $14,400.00 into ...
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ORDER ON: EMERGENCY MOTION FOR SANCTIONS INCLUDING QUASHING OF MOTION FOR EXTENSION OF TIME TO FILE AN APPEAL BY DEL ROSSO, ET AL.; MOTION (1) TO COMPEL AND FIX DATE FOR DEPOSITIONS; (2) FOR SANCTIONS INCLUDING CONTEMPT, ATTORNEYS FEES AND COSTS; PURSUANT TO B.R. 7037 AND F.R.C.P. 37; MOTION FOR CONTEMPT OF COURT, PENALTIES AND SANCTIONS AGAINST FRANK PETTINELLI, EUGENE PETTINELLI, ANTHONY DEL ROS...
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MEMORANDUM OPINION AND ORDER ON OBJECTION TO PROOF OF CLAIM ORDER The Objector and Debtor in this case, Ida Mae Cleveland, resides at 3650 Surrey Lane in Columbus. On July 23, 1985, she entered into a loan transaction with Freed-lander, Inc., The Mortgage People, the Respondent. In connection with this loan transaction, Objector executed and delivered to Respondent a Promissory Note in the princi...
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OPINION AND ORDER Section 522(f) of the Bankruptcy Code permits a debtor to avoid certain liens to the extent that they impair an exemption to which the debtor would have been entitled. The exemption laws of many states, including Illinois, provide that it is only the debt- or’s equity interest in property which is exempt. The question before the Court is whether a lien can be avoided und...
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MEMORANDUM OPINION This matter came on for hearing on February 27 & 28, 1986, on State Bank of *337 Spring Hill’s motion for relief from the automatic stay in order to set off the Bucy-rus Grain Company’s checking account. State Bank of Spring Hill appeared by and through its attorney Thomas L. Griswold. Several creditors objected and. claimed the account, including: Effertz ...
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MEMORANDUM AND ORDER This case presents the question of the effect a bankruptcy filing has upon real estate attachments which are about to expire. Also involved are questions concerning the validity under Massachusetts law of a levy upon a wife’s interest as a tenant by the entirety, the valuation of the respective interests of a husband and wife in such a tenancy, and the effect upon the...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint To Sell Free and Clear of *558Liens filed by the Trustee in the above entitled adversary action. The property addressed by the Complaint has been sold, and the Trustee has received a portion of the purchase price from the buyer. At the time the property was sold, it was recognized by the parties to this action that ...
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MEMORANDUM The Federal Deposit Insurance Corporation (FDIC) objects to the discharge of the debtors pursuant to Sections 727(a)(2), (3), and (5), of Title 11, United States Code. 1 Trial was held July 10, 1986. I The debtors Arnold and Sara Tackett are husband and wife. They are the parents of two minor children, ages seven and four. Mr. Tackett attended Lincoln ...
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*22 ORDER ON MOTION TO DISMISS AND ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a contested discharge proceeding, and the matter under consideration is the dischargeability vel non of an admitted debt owed by Gary Wade Heverly, the Debtor in this Chapter 7 case, to Robert M. Chambers, his ex-wife’s attorney, who instituted this adversary proceeding. The debt under consideration i...
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MEMORANDUM OPINION AND ORDER John Deere Company (Deere) has filed an Application for Determination of Administrative Expenses in the above bankruptcy. The facts are rather simple. On September 29, 1980, debtors executed a retail installment contract (security agreement) with Deere on a 2240 Wind Rower and a 230-14' Auger Platform. The principal balance was $16,738.00. On May 8, 1981, debtors exec...
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MEMORANDUM OPINION INTRODUCTION On August 11,1986, Debtors filed a Joint Disclosure Statement and Joint Plan of Reorganization. After notice, a hearing was held on the Disclosure Statement on September 17, 1986. Two creditors, MDFC Equipment Leasing Corp. (“MDFC”) and Jacksonville Kraft Paper Company, Inc. (“JKPC”) objected to the Disclosure Statement for reasons having to do with the Plan’s ...
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ORDER DENYING CHAPTER 13 PLAN Hearing on confirmation of the Debtor’s Chapter 13 Plan was held on November 10, 1986. The Debtor is a small business owner of a restaurant and lounge in Townsend, Montana. The original Plan proposed to pay $2,965.00 per month for the business operation based on projected annual income *138 of $270,000.00. On the day of the hearing, after objecti...
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DECISION AND ORDER ON PLAINTIFF’S MOTION TO DISMISS The complaint in this adversary proceeding recites that plaintiff contracted with defendant for the production of water tank trucks. On September 21, 1984, it is said, plaintiff terminated the contract for default. Plaintiff invokes various provisions of relevant government regulations to support its contention that the water tank trucks, whic...
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DECISION ON MOTION FOR SUMMARY JUDGMENT Plaintiff in this adversary proceeding is debtor in the related Chapter 7 bankruptcy case. Plaintiff brought this adversary proceeding to determine the dischargeability of a debt under 11 U.S.C. § 523(a)(5). He states in the complaint that he is indebted to the defendant, his former wife, in the amount of $29,000.00 for child support. Plaintiff concedes t...
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DECISION and ORDER ON MOTION FOR SUMMARY JUDGMENT At Cincinnati, in said District, on the 19th day of November, 1986. Plaintiff, Highway Equipment Company, (hereafter “Highway”), pursuant to separate motion and court order, sold assets known as “The Highlift Division”.1 The proceeds from that sale are currently being held in escrow. In this adversary proceeding against multiple defendants, plainti...
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MEMORANDUM This suit was brought by the debtor, Buckley & Associates, Inc., while it was still operating under a confirmed chapter 11 plan of reorganization. When the case was converted to a chapter 7 liquidation, the bankruptcy trustee was substituted for the debtor as the plaintiff in this proceeding. The trustee seeks to recover profit sharing commissions allegedly owed by the defendan...
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OPINION The debtor in possession, Caravansary, Inc., moved to assume its unexpired lease of nonresidential real property from the Passanisis and the Campilongos (“the lessors”). In granting the motion, the bankruptcy court held that the improvements clause contained in Paragraph 24 of the lease was unenforceable because it was too vague to satisfy California’s statute of frauds and therefore th...
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MEMORANDUM DECISION James R. Felder (“Felder”), the debtor in a closed Chapter 7 case, has moved this Court to reopen his case so that he may add omitted creditors. Felder filed for relief under Chapter 7 on November 2, 1984. Debtor was not represented by counsel, and instead relied on the advice of an entity called Action Para-Legal (“Action”). It appears that for a fee of $125, Action assiste...
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66 B.R. 1014 (1986) In re Moises MARKIZER, Debtor. Moises MARKIZER, Plaintiff, v. Zoraida Markizer ECONOMOPOULOS, Defendant. Bankruptcy No. 86-03080-BKC-SMW, Adv. No. 86-0656-BKC-SMW. United States Bankruptcy Court, S.D. Florida. November 18, 1986. *1015 John W. Kozyak, Kozyak, Tropin & Throckmorton, P.A., Miami, Fla., for plaintiff/debtor Moises Markizer. Rex B. Guthrie, Miami, Fla., James V...
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MEMORANDUM OPINION Debtors filed their petition for relief under Chapter 11 on December 27, 1985. Mutual Life Insurance Company of New York (movant) filed its Motion for Relief From the Automatic Stay on July 30, 1986. At the time of hearing on October 29, 1986, the parties stipulated: (1) that the debt owed to movant was $891,640.63 at the time of filing the petition for relief; (2) that the v...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DENYING PETITIONER’S CLAIM FOR RELIEF This action was commenced by a letter motion of the petitioner requesting that the court compel the respondent bank to sell certain real property to her. Because the bankruptcy court can have jurisdiction only if the property can be considered part of the bankruptcy estate, and actions to recover money...
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DECISION & ORDER Broadhollow Funding Corp. (“Broadhol-low”), the debtor, seeks the certification of a class of defendants pursuant to F.R. Civ.P. 23. Once certified, the class will be represented by the named defendants in an adversary proceeding brought by plaintiffs to determine the equitable ownership of a large portfolio of mortgages held by the debtor. BACKGROUND From its i...
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MEMORANDUM DECISION The above-entitled matter is now before the Court on a motion by Helen Hooper and Helmac Investments, Inc. dba UBI Business Brokers (“movants”) for an order of the Court modifying the automatic stay pursuant to § 362(d) of the Bankruptcy Code. Specifically, the movants have requested a determination by the Court that the automatic stay is not applicable to the prosecut...
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MEMORANDUM OPINION This matter came before the Court on October 8, 1986 upon a hearing to consider confirmation of the debtor’s Chapter 13 plan and upon the objection to confirmation by the Chapter 13 trustee. The Court, *19 having heard the argument of counsel for the debtor and the trustee and having reviewed the relevant Code provisions and case law, makes the following determinations. F...
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ORDER ON APPLICATION FOR RELIEF FROM AUTOMATIC STAY This matter came on for hearing before the Court on the motion of Applicant, Linda Mae Johnson (“Applicant”) for relief from stay. By her application Applicant seeks an order of this Court which would permit her to conclude her domestic relations case which is still pending in the District Court for Yuma County, Colorado. The dissolution of ...
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ORDER ON MOTION OF GROFF INDUSTRIES, INC. FOR LEAVE TO FILE A FORMAL AMENDED PROOF OF CLAIM, FOR ALLOWANCE OF SAID AMENDED PROOF OF CLAIM, AND FOR ENTRY OF AN ORDER REQUIRING DEBTORS TO INCLUDE PAYMENT OF SAID AMENDED PROOF OF CLAIM IN THEIR PLAN OF REORGANIZATION, OR, IN THE ALTERNATIVE FOR ENTRY OF AN ORDER FINDING THAT THIS CREDITOR TIMELY FILED AN INFORMAL PROOF OF CLAIM AND REQUIRING DEBTORS...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On December 12, 1986, Shearson Lehman/American Express, Inc. (“Plaintiff”) filed a Complaint praying that, pursuant to *546 Section 528(a)(2) and (4) of the Bankruptcy Code, the claim of Plaintiff against Michael J. Reilly (“Debtor”) be deemed non-dis-chargeable. In response, Debtor contends that he had no intention to perpetuate any fr...
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ORDER ALLOWING MOTION TO DISMISS AND TO MAKE MORE DEFINITE AND CERTAIN The defendants filed motions to dismiss the complaint and to strike and to make various allegations more definite. The motions should be granted. The trustee filed a 30-page complaint against four of the officers of the debtor and a related partnership seeking to impose liability on the theory of piercing the corp...
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ORDER REGARDING CLAIM NO. 8561 THIS MATTER comes before the Court on the Debtors’ objection to the claim of Broomfield Properties, Corp. (“BPC”), Claim No. 8561. The issues are presented here in the nature of a summary judgment motion for the resolution of two legal questions. Debtors admit BPC is entitled to some actual damages for its rejection of a commercial lease with BPC and the fac...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDERS Overruling Objection to Exemption; Denying and Dismissing Fraudulent Transfer Complaint The matters before the Court , are the objection of the Trustee to an exemption claimed by the Debtors in. a life insurance policy, and a complaint to avoid the Debtors’ transfer of proceeds from the sale of real estate into a life insurance policy pursu...
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RULING ON MOTION TO DISMISS Peoples Bankshares, Ltd., filed a Chapter 11 bankruptcy petition (No. 86-02217W) in *538 this Court on September 30, 1986. The Debtor filed a complaint for declaratory judgment (Adv. No. 86-0414W) on October 6, 1986. The matter before the Court is the defendant Iowa Department of Banking’s motion to dismiss the declaratory judgment proceeding. ...
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*534 FINDINGS OF FACT; CONCLUSIONS OF LAW; AND ORDER CONDITIONALLY GRANTING MOTION FOR STAY PENDING APPEAL The matter before the Court is the Debtors’ Motion for Stay Pending Appeal of the Court’s Order of July 9, 1986, and Memorandum of July 15, 1986, granting relief from the automatic stay. This Court has jurisdiction pursuant to F.R.B.P. 8005, which provides a motion for stay ...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing pursuant to the trustee’s motion for turnover of the debtor’s 1985 income tax refund to the estate. The Court also considered the debt- or’s motion to declare the 1985 tax refund abandoned. The debtors, Chester John Dlugopolski, II. and Diana Lynn Dlugopol-ski, appeared through their attorney, Philip R. Carson. The trustee, James S. W...
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MEMORANDUM OPINION AND ORDER This matter came on for trial pursuant to the plaintiffs’, Kent Henry and Larry Atwood, complaint to determine the dis-chargeability of a $15,000 debt under § 523(a)(2)(A) on October 16, 1985. The Court also considered the plaintiffs’ motion for sanctions against the defendant/debtor, Mary Geraldine McClure. The plaintiffs appeared in person and through their attorn...
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OPINION AND ORDER The debtor, LeRoy Moore, initiated an adversary proceeding against Philadelphia National Bank, (PNB), and the standing chapter 13 trustee. Moore had claimed as exempt, under 11 U.S.C. § 522(b), all funds on deposit in his passbook account with PNB, and is now asserting that PNB permitted unauthorized withdrawals from his account in April and May 1986. The debtor seeks damages fo...
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MEMORANDUM OPINION Movant Capitol City Savings Association filed a Motion for Relief from the Automatic Stay which came on to be heard by the Court on October 10, 1986, with additional testimony being heard on October 16, 1986. I. FACTUAL BACKGROUND 1.01 Playa Development Corporation, hereinafter “Debtor” filed this Chapter 11 petition on March 31, 1986. 1.02 The Debto...
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Opinion & Order on the Objections to Debtors’ Homestead Exemptions The debtors have claimed homestead exemptions for a property referred to as The Ledges Apartments. Several creditors have objected to these claims, alleging that the debtors conveyed the property to a Vermont partnership, also known as The Ledges Apartments, that the debtors had formed. They contend that this entity and no...
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ORDER ON MOTION TO STRIKE OBJECTION TO CLAIM AND IMPOSE SANCTIONS THIS CAUSE came on for hearing with notice to all parties of interest upon a Motion to Strike the Objection to Claim and to Impose Sanctions, filed by Earl P. Myhree, M.D. (Dr. Myhree), a claimant in the above-captioned Chapter 11 case. The Court considered the Motion together with the relevant record, heard argument of counsel, ...
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FINDINGS OF FACT, DISCUSSION AND CONCLUSIONS OF LAW, and ORDERS Voiding Defendant’s Security Interest; ORDER Directing Turnover of Funds The matter before the Court involves Trustee’s complaint to avoid a security interest and for turnover of funds. The Court having reviewed the stipulated facts and memoranda of law submitted by the parties, now makes the following Findings of Fact, Concl...
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MEMORANDUM OPINION FINDINGS OF FACT (1) On or about August 18, 1985, claimant Raymond M. Gray filed a Proof of Claim No. 1163, claiming entitlement to $637,300.00 as a priority administrative expense (“Gray’s claim”). (2) Gray’s claim was allegedly founded in part on promissory notes, but neither said notes nor any other documentation was attached to Gray’s claim. (3) On or about August 18,1985, ...
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ORDER SUSTAINING OBJECTIONS TO CONFIRMATION This matter is before the Court upon objections to confirmation of the Chapter 13 plan proposed by Harry H. Folk. The objections were filed by Bank One, Columbus, NA (“Bank One”) and were heard by the Court. The debtor has proposed a Chapter 13 plan which, as amended, provides for payments of $807.67 each month for the first 12 months with monthly i...
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OPINION This adversarial proceeding presents a challenge to the dischargeability of the Debtor’s obligation to the Plaintiff loan company in a Chapter 7 bankruptcy case, pursuant to 11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B), and 523(a)(2)(C). Because we find that the transaction was a closed-end consumer loan, we conclude that the transaction in issue was neither a debt for “luxury goods or...
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OPINION We are herein presented with a motion filed by a labor union and its trustees urging us to refer the determination of the Debtor-employer’s “withdrawal liability” to the union under a collective-bargaining retirement plan to arbitration. This motion causes us to weigh potentially conflicting provisions in two (2) federal laws, i.e., the policy of the Bankruptcy Code in assuring th...
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DECISION In this adversary proceeding, the plaintiff debtor seeks a declaratory judgment that his support obligations to the State of Wisconsin and to his former wife, Beverly D. Wendt, are discharged. The State of Wisconsin has moved for judgment on the pleadings. In 1979, a state court judgment of divorce required the debtor to pay child support on behalf of two minor children. It is not di...
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The Trustee, by motion, seeks an order permitting him to file an amended complaint asserting additional preference claims barred by the two year statute of limitations provided by § 546(a) of the Bankruptcy Code, 11 U.S.C. § 546(a) (1984) (the “Code”). Hong Kong & Shanghai Banking Corp. (the “defendant”) opposes the motion, asserting that the additional claims may not relate back under Rule 15(...
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OPINION This is an adversarial proceeding in which the Plaintiff, a Philadelphia law firm, objects to the discharge of the Debtor, Edward R. Woerner (hereinafter “the Debt- or”), a former client, pursuant to 11 U.S.C. § 727(a)(4)(A) and (B). Alternatively, the Plaintiff seeks to determine the discharge-ability o'f the debt of $149,229.83 owed to it by the Debtor pursuant to 11 U.S.C. § 523(a)(2...
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This adversary proceeding has been presented on motion of the United States, Small Business Administration (“SBA”) for summary judgment determining that its claim against the debtor, Alice L. Earhart, in the amount of $69,580.02 is nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2). In support of its motion SBA has presented affidavits of three of its employees, a copy of the loan application ...
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ORDER APPROVING SETTLEMENT OF ISSUE OF ATTORNEYS’ FEES AMONG APPLICANT COUNSEL, INTER PARTES, WHEREBY JILL R. JACOWAY, ESQUIRE, IS TO BE AWARDED $7,500.00 IN ATTORNEY’S FEES; R.J. BROWN, ESQUIRE, TO BE AWARDED THE SUM OF $12,500; AND DAVID SMITH TO BE AWARDED THE SUM OF $17,500, PROVIDED THAT NO CREDITOR OBJECTS IN WRITING WITHIN 25 DAYS OF THE DATE OF SERVICE OF THIS ORDER UPON THEM...
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*663MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT I. In this core proceeding, see 28 U.S.C. § 157(b)(2)(F), the plaintiff-trustee, Thomas W. Germain, Esq., seeks to avoid, as a preferential transfer, a prepetition lis pen-dens recorded against realty of the debtor’s estate. Nora M. Gawel, the defendant and the filer of the lis pendens, has moved for summary judgment in her favor after both parties fi...
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MEMORANDUM DECISION FACTS The Debtors filed their petition for relief under Chapter 7 of the Bankruptcy Code on December 5, 1985. January 2, 1986 was set as the first date for the meeting of creditors required by section 341(a) of the Code (the “341 meeting”). On July 1, 1986, the Debtors filed the present Motion for Order Allowing Trustee to Pay Available Funds to I.R.S. Ada Ga...
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The within matter is a consolidated case filed pursuant to Chapter 11 of the Bankruptcy Code. The debtors operated in the State of New Jersey for many years prior to filing for relief in April, 1983. In September, 1984, the debtors brought a motion pursuant to § 505 of the Bankruptcy Code (11 U.S.C. § 505) for a determination of liability for unemployment insurance taxes. On October 3, 1984, th...
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*140 DECISION DETERMINING SECURED CLAIM OF BANK ONE This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(E), in which the movant/creditor, Bank One, Dayton, NA, hereinafter Bank One, claims a perfected security interest in the proceeds from the sale of certain corn grown by the respondents/deb...
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OPINION OF THE COURT The instant Opinion • addresses the authority and propriety of this Court to allow Applications by (1) an individual who served as Secretary of an Official Creditors’ Committee, for compensation and reimbursement of expenses; and (2) other corporate members of the Committee, for reimbursement of expenses. Because we believe that clear and specific authority in the Ban...
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OPINION The issue before this court is whether a landlord is entitled to relief from the automatic stay in connection with a nonresidential lease of real property in a chapter 7 proceeding. For the reasons set forth below, I will deny the motion, but will require the debtor to pay postpetition rent to the lessor. 1 I. On July 7, 1986, three unsecured creditors of Alan Bo...
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MEMORANDUM Three creditors, James E. Hardin, James C. Hardin, and Ralph Majors (“creditors”), holding nondischargeable debts pursuant to an order of this court entered while the case was pending under chapter 7, object to confirmation of the debtor’s modified chapter 13 plan (“plan”). As grounds therefore, creditors allege— (1) the plan has not been proposed in good faith; proposed p...
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MEMORANDUM DECISION Plaintiff is a trustee for creditors, installed by a 1984 order confirming a chapter 11 plan which selected plaintiff to pursue avoidable transfers which the debtor and its counsel had neglected. He has already had some 60 actions considered by this court. In this one, filed three days before the two-year statute of limitations provided in 11 U.S.C. § 546(a)(1) expired...
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MEMORANDUM The matter before the Court is the Debt- or’s Motion for Authority to Reject Exec-utory Contract with Infosystems Technology, Inc., (“ITI”), pursuant to section 365(a) of the Bankruptcy Code. ITI objects to the motion. Both parties have submitted mem-oranda and affidavits in support of their respective positions. A hearing was held on the matter on September 8, 1986, at which t...
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ORDER This matter is before the Court on motion by First Edition Equipment Partnership No. 1 seeking various forms of relief regarding a certain premises sublease. Appearances were noted in the record. Hearing was held on October 24, 1986. Based on arguments and memoranda of counsel, the Court being fully advised in the matter now makes this Order pursuant to the Federal and Local Rules of Bank...
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ORDER GRANTING SUMMARY JUDGMENT This adversary proceeding is before the court on plaintiffs’ motion for summary judgment. The case involved a publishing agreement entered into by the plaintiffs with Simon & Schuster to author a book titled “How To Make It When You’re Cash Poor.” Plaintiffs assigned all of their interest in the publishing agreement to Valley Bank of Nevada. 1 Th...
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DECISION Heard on April 23, 1986 on the assessment of damages, on judgments previously entered against Harry Fradin on December 31, 1985, and against Jerome Kaplan on March 12, 1986. The pertinent facts and travel of this proceeding are briefly summarized below. On July 7, 1982, the trustee commenced this adversary proceeding to set aside fraudulent and preferential transfers, and to recover damag...
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Heard on September 12, 1986, on the complaint of manufacturers Hanover Trust Company, pursuant to 11 U.S.C. § 523, to *295determine the dischargeability of debts incurred by the debtors through the use of credit card cash advances. Manufacturers Hanover Trust alleges that the debtors’ taking of cash advances while they were “hopelessly insolvent,” see Plaintiffs Memorandum of Law at 7, constitutes...
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DECISION AND ORDER Heard on the debtor’s objection to the motion of Ethel Holl to vacate an order disallowing her claim. Holl’s claim was filed on April 25, 1985 and was objected to by the debtor more than one year later, on May 15, 1986. No response to the debtor’s objection having been filed within 10 days, an order was entered on July 2, 1986, pursuant to Local Rule 10(d), disallowing the cl...
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ORDER ON MOTION BY MUSSER’S POTATO CHIPS, INC. TO DISMISS CHAPTER 11 CASE AND ORDER ON MOTION BY MUSSER’S POTATO CHIPS, INC. TO COMPEL DEBTORS TO ASSUME OR REJECT EXECUTORY CONTRACT THE MATTERS under consideration in this Chapter 11 case are a Motion by Mus-ser’s Potato Chips, Inc. (Musser’s) to Dismiss Chapter 11 Case; and a Motion to Compel Debtors to Assume or Reject Exec-utory Contract. Mus...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case, and the matter under consideration is a Motion for Summary Judgment filed in the above-captioned adversary proceeding by Florida Progress Corporation (Florida Progress), a Defendant named in the complaint. The complaint was filed by Tambay Trustee, Inc., (Trustee), who seek to recover the interest in a certain pension and retirement f...
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ORDER ON OBJECTION TO CLAIM # 38 OF KROOTH & ALTMAN THIS CAUSE came on for consideration upon notice and hearing of an objection to Claim #38 of Krooth & Altman, filed by Mandalay Shores Cooperative Housing Association, Inc. (MSCHA), the Debtor in the above-captioned Chapter' 11 case. MSCHA asserts that Krooth & Altman’s claim, which is for legal services rendered to MSCHA in 1980 and 1981, is ba...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON MOTION FOR SUMMARY JUDGMENT Jay Morehead (“Morehead”) filed his Complaint for Determination of Discharge-ability of Debt against John M. Peoni (“Peoni”) on March 14, 1986. Peoni answered on April 21, 1986. Morehead moved for summary judgment on July 9, 1986. That motion for summary judgment came before this Court for hearing on September 3, 1...
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This matter arises from a suit by the plaintiff-debtor seeking a determination that the claimed debt to the Internal Revenue Service (IRS) is dischargeable. The debt arises from the assessment by the IRS of a 100% “penalty assessment” pursuant to the provisions of 26 U.S.C. § 6672(a) of the Internal Revenue Code of 1954. The IRS claims that the provisions of 11 U.S.C. § 523(a)(1)(A) specificall...
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OPINION This matter arises as a result of a motion by the plaintiff to suppress the use of a privileged document. The facts are simple. The plaintiff employs in-house corporate counsel. On January 3, 1984, the corporate counsel, one Gail Cudak, wrote a memorandum to an employee of the plaintiff corporation. The memorandum contained her legal opinion and advice regarding the terminati...
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MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT At issue is whether a complaint to avoid an alleged fraudulent transfer filed more than two years after the appointment of a Chapter 7 trustee is barred by the limitations period prescribed by 11 U.S.C.A. § 546(a) (West 1979). On June 24, 1983, an involuntary bankruptcy petition was filed against C.H. Butcher, Jr. This court sustained the peti...
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EXHAUSTIVE OPINION AND ORDER Prologue As with any word, it can be misapplied for the occasion, but the word saga seems to have salient application here. John Galsworthy spoke of The Forsythe Saga, M.R. Ridley of the Vikings, and McCarten even thought the story of the pilot who dropped the atomic bomb a saga. The canvas upon which Landbank Equity Corporation...
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DECISION In this chapter 13 case, the debtors have objected to the allowance of the claim of David J. Black on the ground that the claim was not timely filed. The first date for the § 341 meeting of creditors was scheduled for July 30,1985 and the deadline for filing claims was accordingly October 28, 1985. 1 Black’s attorney filed a $15,667 claim on his behalf on November 26, 1...
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MEMORANDUM OPINION On March 4, 1986, Charles T. Bernard and Betty H. Bernard (debtors) filed their amended plan of reorganization. A confirmation hearing was held in Jonesboro, Arkansas, on the 22nd day of April 1986. The Federal Land Bank of St. Louis (Land Bank), which is a class III secured creditor, filed a written objection to confirmation and also voted to reject the plan. All other class...
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MEMORANDUM DECISION ON ESTATE’S LIABILITY FOR BANK’S FEES AND EXPENSES The Bank of New York, the largest creditor of these debtors, has applied for attorneys’ fees in the amount of $1,300,991, plus attorneys’ expenses of $229,434, together with prepetition expenses paid to Florida Power & Light and Turner Construction *136 Co. in the amount of $325,033 (a total of $1,855,458)...
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ORDER Presently filed in Adversary Proceeding No. 286/0062 are memorandums of the Trustee/Plaintiff and Defendant dealing with abstention of the adversary cause to state court pursuant to Section 28 U.S.C. 1334(c)(1) and (2). The procedural morass of this cause leads the Court to conclude that abstention has neither been formally requested, and if it has been, the request has been waived, and cons...
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ORDER FACTS The Debtor, Hamilton Associates, Inc., dba Time Development and M & D Enterprises, (“Hamilton”) engaged in business as a framing subcontractor from 1982 through 1984. Hamilton had a contract with West Coast Holdings (“West Coast”) for a project known as “Newport Cove” to provide labor and materials to frame buildings under construction. Resolution of this matter requires consideration...
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ORDER DENYING MOTION TO DISMISS, DENYING MOTION FOR RELIEF FROM STAY REQUESTED BY ITT INDUSTRIAL CREDIT COMPANY, AND DENYING IN PART AND GRANTING IN PART MOTION FOR RELIEF FROM STAY REQUESTED BY GENERAL MOTORS ACCEPTANCE CORP. This matter is before the Court upon motions seeking relief from stay filed by ITT Industrial Credit Company (“ITT”) and General Motors Acceptance Corp. (“GMAC”), and upo...
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MEMORANDUM OPINION Presently before the Court is a Motion For Summary Judgment filed by the Third Party Defendants, the Register And Recorder of Butler County, the Butler County Commissioners, and the Register of Butler County. The issue presented is whether the Third Party Defendants can be found liable for damages resulting from a properly recorded, but misindexed deed to real property....
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court on October 2, 1986, on the Motion for Re *285 lief from Stay filed by the law partnership of Stutz, Dyer, Miller & Delap, and the Response thereto by Larry L. Snodgrass, Chapter 7 Trustee. This Court has jurisdiction over the motion pursuant to 28 U.S.C. §§ 1334 and 157. The Applicants, a partnership of attor...
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ORDER At Butte in said District this 4th day of November, 1986. The Debtors commenced this adversary proceeding objecting to the Proof of Claim of Flathead County and seeking a determination of the property tax assessment on improvements to real property in Flathead County, Montana, for the years 1981 through 1985 inclusive. Also named as a party defendant and appearing at trial is the Depart...
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MEMORANDUM DECISION AND ORDER This adversary proceeding is before the court on plaintiffs’ complaint to determine the dischargeability of a debt under 11 U.S.C. §§ 523(a)(4) or (6) or that debtors should be denied discharge under §§ 727(a)(3) or (5). Defendants moved to dismiss for failure to state a claim on which relief can be granted. The motion to dismiss is based on Fed.R.Civ.P. 12(b...
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MEMORANDUM DECISION The central issue considered here is the conflict of interest problem attending representation of dual or multiple parties by bankruptcy counsel; in this case, the debt- or corporation and its officers are co-defendants in a criminal proceeding. I. THE APPLICATION FOR FEES Before the court is the application of attorney Dan R. Dubitzky seeking allowance and p...
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ORDER This matter comes before the Court on the objection of the creditor, the Barton-ville Bank (BANK) to the confirmation of the proposed Chapter 13 plan of Janet E. Williams, the debtor. On August 15, 1986, the debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. She owns no real estate and her equity in personal property is scheduled at $1,614.00, consistin...
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MEMORANDUM OPINION AND ORDER I Statement of Proceedings This case came on for a consolidated hearing on August 13, 1986, on Motion of Robert Calloway and Patricia Calloway (hereinafter: “Debtors”) filed June 30, 1986 to Dismiss the Involuntary Petition of Lafayette National Bank and Trust, Northern Indiana Bank and Trust Company and Anthony Wayne Bank (hereinafter: “Petitioner”)...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDERS RE: MOTION FOR MODIFICATION OF STAY AND ADEQUATE PROTECTION The matter before the Court is the Federal Land Bank of Omaha (Land Bank) Motion for Modification of Automatic Stay and Request for Adequate Protection. It is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (G). The Court has reviewed the pleadings, testimony, e...
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MEMORANDUM OPINION AND ORDER The instant proceeding comes before the Court upon the objection of the First State *278 Bank and Trust of Larned to debtor, Thelma Mae Meckfessel’s exemption of a farmer’s tools of trade. First State Bank and Trust of Larned was represented by Kenneth H. Jack of the firm of Bruce & Davis; and the debtor, Thelma Mae Meckfessel, was represented by ...
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MEMORANDUM OPINION Pursuant to 11 U.S.C. § 505 the debtors seek a determination of the tax liability of the debtor James Lee McManis to the United States of America for withholding and other taxes owed by McManis & Associates, a partnership. The plaintiff debtors and the defendant United States of America each have filed motions for summary judgment pursuant to Bankruptcy Rule 7056 on the...
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MEMORANDUM OPINION AND ORDER The matter before the court is the Motion for Award of Attorney’s Fees filed on August 27, 1984, by The Travelers Indemnity Company (“Travelers”) seeking compensation for the legal fees it incurred in filing a motion for interpleader in this court. Objections to the award of attorney’s fees were filed on August 31, 1984, by Algernon L. Butler, Jr., trustee for the cha...
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ORDER DENYING MOTION TO CONVERT, OR IN THE ALTERNATIVE TO APPOINT A TRUSTEE This matter is before the Court upon a motion filed by TransOhio Savings Bank (“TransOhio”), a creditor in this case, seeking to convert this case to one under Chapter 7 of the Bankruptcy Code or to have a trustee appointed. The motion was tried to the Court. The Court notes that this case began on April 17,1...
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OPINION This adversarial proceeding is one of over two hundred (200) actions instituted by the Trustee of the Debtor in this Chapter 11 bankruptcy case to recover funds allegedly transferred by the Debtor within the circumstances described in 11 U.S.C. § 547(b), which allows a Trustee to avoid “preferential transfers” by the Debtor. The particular transfer in issue here was allegedly made...
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MEMORANDUM OPINION On April 30, 1986, Keystone Acceptance Corporation (“Keystone”) filed a Complaint to Determine Validity of Liens and to Direct Trustee to Turn Over Proceeds. This adversary proceeding is a companion to Adversary No. 86-0102, brought by General Electric Credit Corporation (“GECC”) against the Debtor, Nardulli & Sons Company, Inc. (“Nardulli”), and the Trustee. Both adver...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING PLAINTIFF’S MOTION FOR REMAND TO STATE COURT; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF’S COMPLAINT FOR RELIEF EXCEPT WITH RESPECT TO RETURN OF EARNEST MONEY PAYMENT OF $5,180.00 PLUS INTEREST AT THE LEGAL RATE TO PLAINTIFF AND FINAL JUDGMENT ACCORDINGLY FOR DEFENDANTS ON PLAINTIFF’S CLAIM FOR RELIEF EXCEPT THA...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 11 adversary proceeding is a Complaint for Declaratory Judgment filed by Riverdale Shopping Center and Development Company, Inc. (RSCD), the Debtor in the above-styled case. RSCD seeks a determination of its rights to and interest in certain real property located in Lee County, Florida. The r...
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ORDER ON APPLICATION OF LLOYDS BANK INTERNATIONAL LIMITED FOR ALLOWANCE OF ONE OF ITS CLAIMS AS AN ADMINISTRATIVE EXPENSE CLAIM AND FOR ORDER DIRECTING PAYMENT OF IT THE MATTER under consideration in this Chapter 11 case is an Application of Lloyds Bank International Ltd (Lloyds) for Allowance of One of its Claims as an Administrative Expense. Lloyds seeks payment as a cost of administrat...
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MEMORANDUM OF OPINION AND ORDER Plaintiff-Trustee filed the above-styled adversary complaint to recover two alleged preferential transfers pursuant to 11 U.S.C. § 547. It is before the Court on Plaintiff-Trustee’s Motion for Summary Judgment. The Court finds this matter to constitute a core proceeding withiñ the meaning of 28 U.S.C. § 157(b)(2). The following facts are not in dispute. ...
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MEMORANDUM AND ORDER American Saw & Manufacturing Company, plaintiff, and Bosler Supply Group, defendant, have each filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure [Bankruptcy Rule 7056]. The court will grant Bosler Supply’s motion and enter judgment in its favor dismissing the complaint. Bosler Supply is an Illinois partnership that do...
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MEMORANDUM OPINION INTRODUCTION On October 22, 1984, Debtors filed their joint voluntary Chapter 7 petition. On March 14, 1986, Trustee filed a Complaint against them and Alford Stevenson and Carrie Stevenson, the parents of Debtor Wendell L. Stevenson (hereafter “the parents”). By his Complaint, the Trustee seeks to set aside what he alleges to be a fraudulent conveyance of real estate from ...
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MEMORANDUM OPINION INTRODUCTION Pending for determination are the Farmers Home Administration’s (“FmHA”) Motion To Lift Stay And For Specific Abandonment filed June 25, 1986 (Motion 04), and Motion For Adequate Protection filed June 26, 1986 (Motion 03) as well as Debt- or’s Complaint against FmHA filed July 8, 1986 (Adv. No. 86-0042) and Motion To Allow Use Of Cash Collateral filed August 20, 198...
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ORDER In this Chapter 11 proceeding, hearing on the Debtors’ proposed Second Amended Plan of Reorganization was held on September 15, 1986, after 25 days’ notice to all creditors and parties in interest. Ballots of creditors to the Plan of Reorganization filed with the Court are as follows: *924 [[Image here]] Creditors in Classes 3, 4, 5 and 7 are impaired under the Pl...
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DECISION AND ORDER This matter came to be heard on the motion of Security Pacific Distribution Services (Security Pacific) to vacate the automatic stay of litigation to collect gas grills held by the debtor in New Jersey and in Suffolk County, New York. Security Pacific argues 1) its security interest is impaired, and 2) the grills are not vital to the debtor’s reorganization. The court hereby ...
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MEMORANDUM OPINION This cause is before the Court on the Complaint of Plaintiff, PATRICIA McARTOR, to determine the dischargeability of a *629 debt owed to her by Debtor, RODGER ROWLES. The Complaint has been brought pursuant to 11 U.S.C. Sec. 523(a)(5) for a determination of whether the debt owed to Plaintiff constitutes nondis-chargeable alimony, maintenance or support unde...
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MEMORANDUM OPINION This matter arises upon the Defendant’s Motion to Dismiss for Lack of Jurisdiction, or in the Alternative, to Abstain. At the September 15, 1986 hearing, the Court noted that while the motion primarily raised issues of subject matter jurisdiction, the Defendant’s argument also raised the issue of this Court’s ability to assert personal jurisdiction over the Defendant. The Court...
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MEMORANDUM AND ORDER Before the court is the application of Wessel & Carpel (“Wessel”), attorney to *75 the trustee in this chapter 7 case, for compensation pursuant to 11 U.S.C. § 330(a). Wessel seeks compensation in the amount of $765.00. For the reasons set forth below, the court will only grant compensation in the amount of $485.00. The trustee’s first and final acco...
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MEMORANDUM A Chapter 13 debtor seeks to enjoin the State of Tennessee from revoking the debt- or’s probation and suspended sentence for a DUI conviction. 1 The only unsatisfied condition of probation is payment to the state of a criminal fine and court costs. The debtor’s confirmed Chapter 13 plan calls for full payment of the fine and costs. As explained below neither the auto...
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MEMORANDUM Security Pacific Housing Services, Inc. (Security Pacific), a secured creditor, seeks an order dismissing a Chapter 13 case filed by the debtors on August 29, 1986. Additionally, Security Pacific seeks the imposition of sanctions against the debtors and their counsel including, inter alia, an award of attorney fees and expenses incurred incidental to the filing of the motion wh...
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ORDER ON APPLICATION FOR ALLOWANCE OF ATTORNEY’S FEES FOR SEKMAN AVIATION CORP., HOLDER OF STATUTORY LIENS THE MATTER under consideration is an Application for Allowance of Attorney’s Fees for Sekman Aviation Corp., Holder of Statutory Liens, filed by Bernard B. Wek-sler (Weksler), attorney for Sekman Aviation Corporation (Sekman). Provincetown-Boston Airline, Inc., a/k/a PBA (PBA), the ...
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ORDER ON SECOND AMENDED MOTION TO TAX ATTORNEY’S FEES AND COSTS AND ORDER ON HUR-SEYS’ MOTION TO TAX COSTS AND ORDER ALLOCATING INTEREST THE MATTERS under consideration in this Chapter 11 adversary proceeding are a *64Second Amended Motion to Tax Attorney’s Fees and Costs filed by Hallmark Builders, Inc. (Hallmark), and a similar motion filed by John W. and Mary Hursey (Hurseys), the plaintiffs i...
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ORDER ON MOTION TO VACATE THE ORDER OF JULY 18, 1986 THE MATTER under consideration in this Chapter 11 case is a Motion to Vacate the Order of July 18, 1986, filed by the United States of America, Internal Revenue Service (Government). The Government alleges that because it did not receive notice of this Court’s Order on Objection to Claim entered July 18, 1986, that Order should be vacated and...
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*573 MEMORANDUM OPINION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ARTHUR J. SPECTOR, Bankruptcy Judge. The facts of this adversary proceeding are as follows. On August 8, 1981, the plaintiff, debtor, Charles H. Britton, entered into a contract to purchase various construction equipment from the defendant, Fessler & Bowman, Inc. (hereafter “Fessler”). Britton deposited $...
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This matter is before the Court on motion by First Edition Equipment Partnership No. 1 and its individual partners for relief from the automatic stay concerning certain personal property, equipment and a bar used by the Debtor in connection with the operation of Debtor’s business. Appearances were noted in the record. Evi-dentiary hearing was held September 19, 1986, and limited testimony was the...
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MEMORANDUM OPINION INTRODUCTION On April 17, 1985, B & B Enterprise, a partnership (“B & B”), filed its voluntary Chapter 11 petition. On August 21, 1986, B & B filed a two count Complaint For Declaratory And Injunctive Relief against the Bank of Perryville (the “Bank”). In Count I, B & B alleged that it owned 580 acres of real estate in Perry County and Ste. Genevieve County, Missou...
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MEMORANDUM OPINION Presently before the Court are: 1. Plaintiff’s objection to Debtor’s exemption of a Note and Mortgage, which documents are physically located in Pennsylvania, securing a debt negotiated in and encumbering realty located in New Jersey. In the event the law of Pennsylvania is *911 applicable, the exemption is proper; however, in the event the law of New ...
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This cause is before the Court on the Trustee’s Objection To the Asserted Priority Claim by the United States of America, on behalf of The Cotton Board, of $130,-861.20. At issue is whether the funds claimed by the Cotton Board (Board) are property of the estate and, if so, whether the claim is entitled to priority status. This is a case of first impression in this District. Flowers, Deverell and ...
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MEMORANDUM OPINION I. Summary This Court has jurisdiction over this matter as a core proceeding pursuant to 28 U.S.C. § 1334 and § 157. The Debtor is a limited partnership with one asset, a shopping center located in Houston, Texas. That center has three anchor tenants which taken together lease over three quarters of the space. The remaining one-fourth of the leasable area is designated ...
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MEMORANDUM OPINION This matter is before the court on remand from the' Fourth Circuit Court of Appeals for reconsideration of the confirmation of the Chapter 13 plan proposed by the debtor, Susan K. Freeman. Neufeld v. Freeman, 794 F.2d 149 (4th Cir.1986). The Fourth Circuit has specifically directed the court to consider the debtor’s pre-petition conduct and recent discharge in a previous Ch...
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ORDER This case is before the Court on the debtor’s motion to transfer the case to the Bankruptcy Court for the District of New Jersey, the state where the debtor now resides. The Trustee in this case opposes the motion on the grounds that property of the estate includes certain claims which the Trustee should pursue for the benefit of creditors and that the interest of justice and convenience ...
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ORDER On August 7, 1986, D’Lites of America, Inc. (“D’Lites”) filed a voluntary petition under Chapter 11 of the Bankruptcy Code. This adversary proceeding was commenced by D’Lites against Zohar-Greenboim, Inc. (“Zohar-Greenboim”) on September 9, 1986 by the filing of a complaint seeking an injunction precluding Zohar-Greenboim from taking possession or seeking to take possession of speci...
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MEMORANDUM The matter before the Court is the motion of U.S. Trust/Charlesbank (the “Bank”), formerly Charlesbank Trust Company and now known as U.S. Trust/Middle-sex, for relief from the automatic stay imposed by section 862(d) of the Bankruptcy Code. G & A Associates (“G & A” or the “Debtor”), a partnership comprised of two individuals, opposes the motion for relief from stay as well as a subse...
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MEMORANDUM DECISION AND ORDER ON APPLICATION FOR A PRELIMINARY INJUNCTION MacKie and Kamrath, a Texas limited partnership, filed its petition for relief under Chapter 11 of the Bankruptcy Code on August 1, 1986. Prior thereto on May 17, 1985, the debtor had entered into a lease with John Craig and Company, Inc., a Texas corporation. The leased premises are located in a commercial shopping center k...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before, the Court on the debtor’s Motion to Determine Priority Status and Dischargeability of Internal Revenue Service Claim, filed July 25, 1986. The parties filed briefs containing stipulated facts, and the Court heard legal argument on September 22, 1986. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334 and 157. ...
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OPINION AND ORDER This matter comes before the Court on the motion of Herman G. Fahnders, a/k/a Mike Fahnders and Doris Fahnders (FAHNDERS), the Debtors, to assume a contract for the sale of real estate and the objection thereto by Richard L. Steiner (STEINER), the purchaser under the contract. *95 The FAHNDERS, as sellers, entered into a contract dated September 18, 1981, with STEINER for ...
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ORDER On October 27, 1986 a hearing was held relative to the Motion for Relief from the § 362 automatic stay by ITT Commercial Finance Corp. (“ITT") (CM# 86-149); and in conjunction with said matter, a hearing was also held relative to the Chapter 11 Debtor’s Notice of Intent to Sell Property Pursuant to § 363(b) of the Bankruptcy Code, said notice having been filed with the Court on August 25,...
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ORDER This case came before the court for hearing on October 22, 1986 with regard to the Motion For Relief From Automatic Stay filed by The Berton Group, Inc. (hereinafter “Berton”) seeking a lifting of the automatic stay to permit Berton to proceed further with certain litigation pending in the state courts of California in which Ber-ton is asserting various claims for damages and other relief...
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I Background: A. The Posture of the Instant Proceeding The instant adversary proceeding is before this court pursuant to the remand of the Second Circuit. In re Johns-Manville, 801 F.2d 60 (2d Cir.1986). On August 19, 1985 Leon B. Dubin, a Manville common stockholder and a member of the Equity Security Holders Committee (“Equity” or the “Equity Committee”) brought a...
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MEMORANDUM AND ORDER The matter before the Court is an action by the debtors, Leland and Karen Wolsky (Debtors), against the Federal Deposit Insurance Corporation (FDIC) to determine the validity of liens claimed by FDIC in the Debtors’ trucks. The Debtors filed a Chapter 11 petition on February 17, 1983, and commenced this action on May 14, 1986, pursuant to section 506 of the Bankruptcy...
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OPINION AND ORDER DENYING MOTION TO WITHHOLD DEBTORS’ DISCHARGE This matter is before the court upon the motion of creditor, Sears, Roebuck and Company, to withhold issuance of discharge for failure to comply with 11 U.S.C. § 521(2). Upon consideration thereof, the court finds that creditor’s motion should be denied. 11 U.S.C. § 727(a) provides that the court shall grant the Debtors a dischar...
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OPINION The principal issue presented by this case at this juncture — whether a Chapter 13 debtor can present a plan consistent with the Bankruptcy Code when he chooses to attempt to “provide” for claims of the Internal Revenue Service (“IRS”) by not dealing with these claims at all under the terms of his Plan, i.e., dealing with them “outside” of his Plan — is presented to us by the Debtor in ...
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OPINION The issue for consideration is whether we should grant a seller’s motion for relief from the automatic stay under 11 U.S.C. § 362(d) of the Bankruptcy Code (“the Code”) in order to allow it to bring an action for ejectment against the debtor on the basis that the debtor failed to comply with the terms of a Lease Purchase Agreement. For the reasons set forth below, we will grant th...
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On September 18, 1986 in each of the above mentioned cases, The Honorable Hayden W. Head, Jr., United States District Judge for the Southern District of Texas, Corpus Christi Division entered an order requesting the undersigned to make a recommendation with respect to the motions filed in the above styled cases to withdraw the reference. In each case, the defendant filed a motion to withdraw th...
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OPINION Came on to be heard and was heard the complaint to avoid preferential transfers filed by Jacob C. Pongetti, Trustee for the estate of M.D.I., Inc. d/b/a Classic Catalog Showrooms, hereinafter referred to as Trustee; answer and affirmative defenses filed by the Defendant, James A. Sweeney; all parties being represented by their respective attorneys of record; on proof and the presentation o...
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MEMORANDUM OPINION AND ORDER This adversary action comes before the Court to be ruled on a single point, namely are plaintiffs secured by virtue of a lien created by their state court judgment, or are they unsecured. The parties have stipulated to all other facts and present an (as yet) unruled by the Bankruptcy Courts of the Western District of Missouri issue that necessitates the follow...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING THE PLAINTIFF’S COMPLAINT FOR RELIEF This action for sale free and clear of liens of certain property in which the debtors have an interest came on before the bankruptcy court for trial of its merits on October 20, 1986, whereupon plaintiff appeared by Roger Driskill, Esquire, his counsel, and the defendants appeared personally an...
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ORDER DISMISSING CHAPTER 13 PROCEEDING This court on October 3, 1986 entered its order requiring the above named debtor to show cause why the debtor’s Chapter 13 proceeding pending in this court should not be dismissed. The court’s order provided that the debtor and/or any creditor should file their response on or before October 20, 1986. The debtor on October 17, 1986 filed his response, which ha...
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MEMORANDUM OPINION The debtor, Jimmie Juan Nolen, suffered an injury compensable under the New Mexico Workmen’s Compensation Act prior to the filing of the petition. He received a lump sum payment of the installments of compensation, apparently pursuant to N.M. S.A. 1978 § 52-1-33 (Orig.Pamp.) which provides: If, before the time has elapsed within which the defendants may file their answer or...
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MEMORANDUM OPINION This matter came before the Court on the trustee’s objection to debtors’ filing of a claim on behalf of the Internal Revenue Service (IRS). The issue at bar is whether the debtors’ filing of such a claim was timely under § 501 of the Bankruptcy Code and Bankruptcy Rule 3004. Debtors filed their chapter 7 bankruptcy petition on February 13, 1984. At the time notice ...
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FINDING AS TO COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT On July 18, 1985 the plaintiffs filed a complaint objecting to the discharge of their debts as scheduled by the defendants-debtors and on the 19th day of August, 1985 the defendants-debtors filed a Motion to Dismiss the complaint. This court on March 28, 1986 entered an order dismissing the second cause of action and dismi...
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MEMORANDUM DENYING RELIEF FROM STAY Wood Products Credit Union (“credit union”) filed a motion for relief from the automatic stay of 11 U.S.C. § 362(a) to permit foreclosure of its security agree *146 ment in a 1985 Toyota Corolla. The sole default under the security agreement arose from a provision which designated the filing of bankruptcy as a default. The credit union continued to accept i...
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*171 ORDER AND NOW, this 27th day of October, 1986, it is ORDERED that the Motion of Natalie S. Pavelka to Dismiss the Plaintiff’s Complaint to Determine Discharge-ability of Debt is hereby DENIED. The last day for timely filing of the plaintiff’s Complaint was July 1, 1986. The Court per review of the pleadings and independent research, has ascertained that the filing of the Complaint occu...
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MEMORANDUM AND ORDER The instant “Complaint To Avoid Preference And For Other Relief” was filed by the plaintiff, Bruce Audwin Quinn (“Debt- or”) on August 11,1986 against the defendant, Fidelity Financial Services, Inc. (“Fidelity”) pursuant to 11 U.S.C. § 522(h) seeking to avoid a certain pre-bankruptcy foreclosure sale of the Debtor’s home as a preferential transfer under 11 U.S.C. § 547(b) ...
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*489 MEMORANDUM AND ORDER This matter comes before the court on the amended application of James R. Stu-ber (“Stuber”) for allowance of compensation and reimbursement of expenses pursuant to 11 U.S.C. § 330(a). Objections thereto have been filed by the debtor and by certain creditors, i.e., the United States and the Illinois Department of Revenue. For the reasons set forth below,...
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MEMORANDUM AND DECISION This is an Application by the debtor to reject the pension plan of The Bastían Company, Inc., hereinafter the Company. The granting of this relief was opposed by Local 212, Office and Professional Employees International Union, A.F.L.-C.I.O., hereinafter the Union and Pension Benefit Guaranty Corporation, hereinafter PBGC. The attorneys for the creditors committee also app...
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MEMORANDUM AND ORDER This is an action by the Trustee of Anderson Plumbing Company, a limited partnership, to recover an alleged preference in the amount of $14,510.47 from the defendant, Heieck Supply. The facts are not in dispute and the parties have stipulated that the payment received by Heieck satisfies all the requirements of 11 U.S.C. § 547(b) and is recoverable by this truste...
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*255 ORDER (i) UNDER 11 U.S.C. §§ 327, 328 AND FED.R.BANKR.P. 2014 AUTHORIZING RETENTION OF THE FIRST BOSTON CORPORATION AS INVESTMENT BANKERS IN CONNECTION WITH SALE OF ASSETS EFFECTIVE AS OF SEPTEMBER 17, 1986, AND (ii) UNDER 11 U.S.C. §§ 330, 503, 506(c), AND 552(b) AUTHORIZING PAYMENT OF FEE, FREE AND CLEAR OF LIENS, FROM PROCEEDS OF SALE Upon the application of Knudsen Foods...
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This is an action initiated by plaintiff under the Labor Management Relations Act, as amended, 29 U.S.C. § 141 et seq., over which this court has jurisdiction under Section 301 thereof, 29 U.S.C. § 186, for an injunction against certain activities of defendants which plaintiff asserts is in derogation of the no-strike clause in the parties’ Collective Bargaining Agreement and the defendants’ ob...
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The matter presently before the court is in connection with a complaint filed by the Chapter 7 Trustee of the estate of Carmella Ursula Italiano. Before the court is the Trustee’s motion for judgment on the pleadings and alternatively for summary judgment and a cross-motion of the defendant herein for judgment on the pleadings and alternatively for summary judgment. The complaint was filed by H...
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DECISION & ORDER Compass Van & Storage Corp. (“Compass”), the debtor, seeks authorization to assume an Agency Contract with Allied Van Lines, Inc. (“Allied”) pursuant to 11 U.S.C. § 365. Once assumed, the contract will be continued by Compass, although the equity ownership of Compass will be transferred in accordance with the proposed plan of reorganization. Allied objects to the assu...
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DECISION AND ORDER This is an adversary proceeding initially instituted by plaintiff Mapco Fertilizer, Inc. (hereafter Mapco) against two defendants, the first of them being debtor, and the other, N-Ren Illinois, Inc., a wholly-owned subsidiary of debtor. Initially the complaint sought limited relief regarding a procedure known as a “turnaround” at a plant operated by a joint venture in which plai...
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Before the court is the motion of the trustee’s attorney for an order imposing sanctions on the defendants, The Village Carpets and John Young. The movant asks for the imposition of sanctions (1) pursuant to Rule 11, Federal Rules of Civil Procedure, for the defendants’ alleged filing of a frivolous motion to determine the discoverability of documents, and (2) pursuant to Rule 37 of the Federal Ru...
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MEMORANDUM OPINION FINDINGS OF FACT, AND CONCLUSIONS OF LAW The Abbotsford State Bank (ASB), by William C. Gamoke, has filed an objection to the debtors’ claim of exemptions pursuant to Bankruptcy Rule 4003(b). The debtors appear by Terrence J. Byrne and contest the objection. A hearing was held in this matter on August 20, 1986. The issues have been submitted to the court for determination throug...
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MEMORANDUM OF DECISION AND ORDER ON DISCHARGEABILITY OF DEBT UNDER CODE SECTION 523(a)(2)(B) The plaintiff in this adversary proceeding seeks a determination under Code § 523(a)(2)(B) 1 that a debt scheduled in the debtor’s Chapter 7 petition is not discharge-able. The debtor/defendant has denied the material allegations of the plaintiffs complaint. The facts necessary for an analysis and det...
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ORDER DENYING CONFIRMATION AND DISMISSING CASE A confirmation hearing was held September 16 on the debtor’s chapter 11 plan. The matter was taken under advisement pending the hearing of the debtor’s adversary complaint, 86-0584, seeking sale free of liens and valuation of the secured claim of the mortgagee. The adversary proceeding was tried on October 14. I conclude that confirmation must be d...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(4) for his claim in the amount of $30,719 against the debtor. The debtor has answered and the matter was tried on October 14. Section 523(a)(4) excepts from discharge debts: for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny. (Emphasis added). Plaintiff has neither ...
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MEMORANDUM OPINION INTRODUCTION On June 21, 1985, Debtor (“James”) filed his voluntary Chapter 7 petition. On September 13, 1985, James’ former spouse, Jana, filed a Complaint seeking to except from discharge certain of James’ obligations arising from a state court decree dissolving their marriage. Jana’s theory is that the obligations are nondischargeable under 11 U.S.C. § 523(...
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MEMORANDUM OPINION INTRODUCTION On June 18,1985, an involuntary Chapter 7 petition was filed against Elaine Shucart, d/b/a Interior Design Supply Co. (“Shu-cart”) by petitioning creditors, Payne Fabric (“Payne”), Bali Blinds Midwest (“Bali”), Delmar Window Coverings (“Delmar”), Knoll International, Inc. (“Knoll”), Forster Textile Mills, Inc. (“Forster”), Beauty Vue Corp. (“Beauty”) and Louver Drap...
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Before this Court are motions filed by Defendants seeking the following: (1) stay or dismissal of Adversary Proceeding No. 186-0042 pending arbitration of the underlying disputes and; (2) dismissal of Adversary Proceeding No. 186-0042 for lack of jurisdiction or, in the alternative, abstention by this Court. After reviewing the motion papers, pleadings, briefs of the parties, tra...
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ORDER This matter is before the court on plaintiff Hal C. Hossinger’s 1 (Hossinger) Complaint for Determination of Dischargeability of Debt filed on December 3,1984. Hos- *78 singer’s complaint is based upon 11 U.S.C. § 523(a)(5) which exempts from discharge any debt, (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or s...
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MEMORANDUM OPINION This case is before the court on the attack by the Chapter 7 trustee upon the validity of the secured claim of Hollis Engineering, Inc. with regard to a “TDL” wave soldering machine which the debtor purchased from Hollis in May of 1984 for the *460 sum of $22,375. The purchaser was the individual debtor George R. Covey. Although no separate entity was involved, Mr. Covey di...
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IT IS HEREBY ORDERED THAT the Memorandum of Opinion and Decision filed on May 8, 1984 and published in 39 B.R. 551 (E.D.Cal.1984) and the Judgment entered thereon on August 24, 1984 in the above-entitled matter are vacated and de-certified and the Complaint herein is dismissed with prejudice....
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court on the objections by Intrawest Bank of Greeley, N.A. and the Farmer’s Home Administration to the confirmation of the debtors’ Chapter 13 plan. A hearing was held on September 24, 1986. This Court recognizes jurisdiction pursuant to 28 U.S.C. §§ 1334 and 157. The Farmer’s Home Administration asserts that the plan does not ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on September 19, 1986, on the Trustee’s Motion for Approval of Settlement, and the Debtor’s and Nick Kane’s objections thereto. This proceeding falls within the jurisdiction of this Court pursuant to 28 U.S.C. §§ 1334 and 157. The Trustee in this Chapter 7 case seeks approval of a settlement of a complaint filed by the Debt...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing on February 21,1986, on the trustee’s objection to the debtor’s claim of a homestead exemption in proceeds from an involuntary transfer pursuant to a prior divorce decree. The hearing was combined with the trustee’s complaint to turnover non-exempt property. The trustee, Henry W. Green, appeared on his own behalf. The debtor, Tr...
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ORDER OVERRULING OBJECTION OF GABRIEL CHEHADEH TO TRUSTEE’S REPORT AND DENIAL OF PETITION FOR REMOVAL OF SETTLED CREDITORS This matter was heard on September 25, 1986, on objection filed by Gabriel Cheha-deh to the trustee’s Final Report and Account Before Distribution. Appearances were noted on the record at the hearing. The Court, having reviewed the documents submitted along with the entire ...
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DECISION AND ORDER ON MOTION TO SHOW CAUSE This is a Chapter 11 case which was filed here June 17, 1986. The debtors are individuals, debtor Robert Mitchell being employed by Indiana-Michigan Electric Company in Indiana. In addition, he carries on a business as a self-employed part-time farmer. Respondent, Quality Plant Service, Inc. (hereafter “Quality”), represented by respondent John D. Ga...
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MEMORANDUM AND ORDER FIXING ATTORNEYS’ FEES AND EXPENSES This matter came on to be heard on September 25,1986, upon the application of Charles E. Ewing for allowance of compensation for professional services rendered to the Debtors herein in the amount of $8,447.00 and expenses of $585.25. One-half of these amounts is requested in each of the above cases. Upon consideration of the testimo...
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MEMORANDUM OPINION This matter comes before the Court on the Motion of Houston Avocado Company, Inc., Murphy Tomato Company, Inc., Tom Lange Co., Inc., Magnolia Fruit & Produce Co., Inc., Kalil Produce Company, Mendel-son-Zeller Company, Inc. and Calavo Growers of California (“PACA Claimants”) for Relief From Stay of Act Against property. The motion asserts that the PACA Claimants are ben...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court on June 4,1986, on the Trustee’s Complaint to Recover Preferential Transfer, and the Court having heard the testimony, 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 foll...
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ORDER OF DISMISSAL This chapter 11 petition was filed September 12. Bankruptcy Rule 1007(d) requires the immediate filing of: a list containing the name, address and claim of the creditors that hold the 20 largest unsecured claims, excluding insiders, as prescribed by Official Form No. 9. The debtor filed a petition, unaccompanied by the required schedules of assets and liabilities, t...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of William T. Hopkins and Janet Hopkins, debtors and defendants in this adversary proceeding, for summary judgment in their favor on the complaint of Rickey L. Albin, D.P.M. and Judith E. Rubin, D.P.M. (“plaintiffs”) seeking nondis-ehargeability of their debt pursuant to 11 U.S.C. §§ 523(a)(2)(A), (a)(4), and (a)(6). For the...
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MEMORANDUM OF DECISION Madison National Bank and Baltimore Federal Financial object to confirmation of debtors’ proposed Chapter 13 plan. These creditors allege that the debtor’s 72-year old mother is not a “dependent” for purposes of 11 U.S.C. § 1325(b)(2)(A) and that money used by debtors for her support should be devoted to plan payments. The court finds, absent a statutory definition ...
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MEMORANDUM OPINION This is an adversary proceeding brought by Michael J. Schwarz, Trustee for Express Liquors, Inc., a chapter 7 debtor, to recover payments received by Equitable Bank, N.A., (“Equitable”), and Suburban Bank (“Suburban”), predecessor to Sovran Bank/Maryland, arising from the sale of the debtor’s business to Jin-Mar, Inc., Albert R. Martin, Cosinia Martin, and Jin Hwi Kim, ...
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ORDER This matter came before the Court on cross-motions for summary judgment submitted by the parties in these consolidated actions to determine the validity, priority and extent of a lien under 11 U.S.C. §§ 506(a) and (d). Upon agreement of the parties, the issues were submitted to the Court upon stipulation of facts without an evidentiary hearing. Based upon the file and records herein, the ...
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ORDER AVOIDING LIEN Debtors filed a Motion To Avoid Lien, alleging ITT Financial Services held a non-possessory, nonpurchase-money security interest in household goods and furnishings held primarily for personal, family or household use of debtors or a dependent of debtors pursuant to 11 U.S.C. §§ 522(b), 522(f)(2). ITT admits its security interest is both nonpossessory and nonpurchase-money bu...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER May a Chapter 13 plan modify the rights of a creditor holding a fully secured interest solely in a debtor’s residence when the underlying indebtedness arose as a result of a short-term, non-purchase money loan? While various courts have antithetically resolved the question, the Court’s analysis of the sparse legislative hi...
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MEMORANDUM OPINION Mason and Dixon Lines, Incorporated [hereinafter Mason and Dixon] filed for Chapter 11 reorganization March 29, 1984. The reorganized debtor, Mason and Dixon, and the trustee, George E. Gilbertson, filed an adversary complaint for the recovery of certain preferential transfers from defendant St. Johnsbury Trucking Co. [hereinafter St. Johnsbury] on March 31, 1986. Mason...
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MEMORANDUM AND ORDER The matter before the court is a Motion To Invalidate Lien Upon Exempt Property, filed July 28, 1986, by the Debtors, Blaine and Leona Janz (Debtors). The State Bank of Towner filed an objection to the motion on July 31, 1986, and also objected to the claim of exemptions on the property subject to this motion. A hearing was held before the undersigned on September 29,...
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MEMORANDUM OF OPINION This cause is before the Court on the motion of Cleveland Metropolitan General Hospital (“Metro”) for the abandonment of certain funds, the objection of debtors to the motion, briefs, exhibits and oral argument of counsel. The funds in dispute, $5,435.30, are moneys received from Nationwide Insurance Company (“Nationwide”) in settlement of a personal injury clai...
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MEMORANDUM OPINION Before the Court is Norwesco Development Corporation’s Application for Rule to Show Cause Why Pennsylvania’s Departr ment of Environmental Resources (“DER”) Should Not Be Held to Be In Contempt of Court and for a Stay of an Order of the Commonwealth Court of Pennsylvania. As indicated in the Pretrial Order, contempt is not appropriate. The Court now considers the applic...
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MEMORANDUM OF OPINION On November 2, 1982, Hendersonville Bowling Center, Inc. (“Hendersonville”) filed a voluntary petition under Chapter 11 of the Bankruptcy Code. On the same date, Hendersonville also filed an application for appointment of a trustee to assist in the operation of a bowling alley located in Hendersonville, Tennessee. On November 12, 1982, Irwin A. Deutscher (“Deutscher”) wa...
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MEMORANDUM OPINION This matter is before the Court on the motion of the First National Bank of Chicago (“FNB”) for relief from the automatic stay to hold a public sale of stock pledged to FNB by Opelika Manufacturing Corporation (“Opelika”). Opelika opposes the motion and the Official Creditors’ Committee of Opelika (the “Committee”) supports the motion in part and opposes it in part. The...
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MEMORANDUM OF DECISION (Trustee’s Objection to Claim) Melvin M. Feldman, trustee of the Chapter 7 estate, has filed an objection to the claim of GNAC Corp. The objection states in its entirety: For objection to the claim of GNAC Corp. the Trustee states: 1. GNAC Corp. filed a claim of $15,-000.00. 2. The claim of GNAC Corp. is for gambling and/or wagering which is ille...
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OPINION This case, in its present posture, requires us to consider whether a debt incurred under the Health Education Assistance Loan Program, 42 U.S.C. § 294f (hereinafter “HEAL”) constitutes an additional exception to 11 U.S.C. § 1328(a) and is hence dischargeable only if the conditions set forth in 42 U.S.C. § 294f(g) are met, and whether the Objection of the Government to the Debtor’s Plan,...
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This adversary proceeding involves the payment of a receivable owing to the debt- or by the transfer of a condominium to a trust for the benefit of the debtor’s children. The bankruptcy trustee, asserting the fraudulent transfer provisions of 11 U.S.C.A. § 548(a)(2) (West 1979), seeks to recover the condominium and its furnishings, or the value thereof, for the benefit of the debtor’s estate. A...
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MEMORANDUM OPINION AND ORDER On the 9th day of May, 1986, Stephen M. Yamin, a debtor, filed a motion alleging violation of the automatic stay under 11 U.S.C. § 362. The motion seeks contempt sanctions against several officers of Charter National Bank-Westheimer (“Charter Bank”), as well as Charter Bank itself. Debtor Yamin claims that Charter Bank, holding a deed of trust note secured by ...
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On January 26, 1983, GHR Energy Corporation (“GHR”) filed its chapter 11 petition in the United States Bankruptcy Court for the District of Massachusetts. The chapter 11 case was subsequently transferred to this court. 1 At the time the chapter 11 petition was filed, GHR, as lessee, had signed certain lease agreements with 523 North Belt Associates (“North Belt”)/plaintiff, as lessor, at 523 ...
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ORDER ON MOTION TO DISMISS CHAPTER 13 CASE AND ORDER ON MOTION TO ABSTAIN THE MATTERS under consideration in this Chapter 13 case are a Motion to Dismiss Chapter 13 Case and a Motion to Abstain, both filed by Robert F. and Barbara Schlerf (Schlerfs), creditors of the above-captioned case. The Schlerfs seek a dismissal of this case pursuant to 11 U.S.C. § 1307(c), alleging that Peter M. Venech a...
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MEMORANDUM OPINION INTRODUCTION On March 21, 1986, Carolyn L. Ward filed her voluntary Chapter 1 petition. On July 31, 1986, South Side National Bank (“Bank”) filed its Motion For Relief From Automatic Stay. The Bank requested the stay be modified so that it could foreclose its security interests in certain real estate jointly owned by Debtor and her husband (“the real estate”) and in twelv...
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MEMORANDUM OPINION INTRODUCTION On January 21,1986, the Debtor filed her voluntary Chapter 7 petition. On March 13, 1986, Colonial Federal Savings and Loan Association (“Colonial”) timely filed a two count complaint against the Debtor. In its first count, Colonial sought the Court’s declaration that Debtor’s obligation to it is nondischargeable. In its second count, Colonial sought to deny Debtor ...
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MEMORANDUM AND ORDER The matter before the court is a Motion for Relief from Stay, filed on July 24,1986, by Federal Land Bank of St. Paul (FLB), as to approximately 6,330 acres owned by Tom Asbridge (Debtor) and his wife, Laura. The Debtor filed his petition commencing this Chapter 11 proceeding on June 18, 1986. The Debtor and his wife (Debtors) previously filed for Chapter 11 on March 30,1...
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This matter is before the court upon the involuntary petition filed February 26, 1986, by Norling Studios, Inc. (Norling), Triton Enterprises, Inc. (Triton), and Fores Manufacturing Corporation (Fores) seeking an order for relief under Chapter 11 of the Bankruptcy Code (11 U.S.C. § 101 et seq. 1 ) against Galaxy Boat Manufacturing Company, Inc. (debtor). The debtor filed an answer in respon...
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OPINION ON MOTION TO DISMISS AND FOR RELIEF FROM STAY This matter is before the Court on a motion for dismissal or in the alternative for relief from the automatic stay of Section 362(a) of the Code. The six moving parties, the Deacon Group, are judgment creditors of the debtor and contend that this case is a bad faith filing in that the debtor is using the Chapter 11 process in lieu of posting...
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ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT This matter is before the Court on the cross motions of the parties for summary judgment. This adversary proceeding was filed by certain auto dealers known as “Auto Dealers Group” seeking a declaratory judgment as to whether they were liable to return to debtor the advance unearned commissions which they had received pre-petition. Debtor, Auto...
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*239 MEMORANDUM OF DECISION RE: MOTION TO DISQUALIFY DEBTOR’S COUNSEL, TO DENY ALL FUTURE COMPENSATION AND TO REQUIRE DISGORGEMENT OF PAST COMPENSATION The court has pending before it two applications for interim compensation filed on behalf of the former co-counsel of the Chapter 11 debtor in possession, Roger J. Au & Son, Inc. (Au & Son). The first application requests fees in ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Heard on the motion of Cecile Robert to strike the trustee’s objection to her proof of claim # 18, and on Robert's motion to vacate our order disallowing that claim. 1 FACTS On September 4, 1984, Cecile Robert filed a proof of claim 2 in the amount of $22,539, for secretarial services and for money allegedly loaned to Allen Carr. The trustee objec...
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MEMORANDUM OF OPINION CONCERNING JURISDICTION The Aristera Company (Debtor) filed a voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code on August 29, 1984. On January 4, 1985, the Debtor filed this Adversary Proceeding against A.H. *929 Chaney d/b/a Chaney Trucking (Chaney) alleging four grounds of recovery: a. The Debtor’s sale to Chaney of 3,349.05 to...
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MEMORANDUM OF DECISION CONCERNING RENT PROCEEDS Procedural History On December 26, 1984, the Debtors filed voluntary petitions under Chapter 11 of the Bankruptcy Code. On June 27, 1986, the Debtors filed this Adversary Proceeding, naming seventeen parties defendant, to determine the rights of the parties to the rents from certain lease agreements. Under the agreements, the Debtor...
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*51 ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 11 adversary proceeding filed by Harold A. Krig, the Debtor (Debtor), who seeks a determination of the extent, validity, and priority of liens held by the Bank of Pasco County (Bank) and by the United States of America, Department of Agriculture, Farmers Home Administration (Farmers Home), and the valuation of the collateral securing...
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ORDER OF DISMISSAL WITHOUT PREJUDICE In this adversary proceeding, the chapter 11 debtor seeks the recovery of $115,000 from the defendant on a promissory note which became due by its terms 10 months ago. The note is payable to the corporate debtor’s principal, not the debtor. The only connection of this claim with the bankruptcy case is that the note has been assigned to the debtor. Defendan...
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ORDER OF DISMISSAL This chapter 11 case was transferred from New York to this court in January. The debtor’s plan was before the court on a continued confirmation hearing on October 9, together with the debtor’s motion (C.P. No. 57) that this case be dismissed. The debtor’s motion acknowledges that the debtor cannot obtain support for its plan and concedes that confirmation must be denied. Th...
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MEMORANDUM OPINION AND ORDER This matter is a consolidation of five cases in order to determine the priority of unpaid federal income taxes incurred by the debtors after the filing of the Chapter 13 petitions. The United States Internal Revenue Service designated the taxes as administrative expenses and requested payment pursuant to 11 U.S.C. § 503. The trustee objected to the request and...
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*47 MEMORANDUM AND DECISION The debtors filed a petition for relief under Chapter 11 of Title 11, United States Code, on October 17, 1980. The case was converted to a case under Chapter 13 on June 5, 1985 pursuant to a motion brought on by the debtors. Prior to the bar date for claims, the Internal Revenue Service filed a proof of claim for amounts allegedly owing. That proof of claim was ame...
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Lilliam Roberts, Commissioner of Labor of the State of New York (“Commissioner”), has moved for a declaratory judgment that she is not barred by the automatic stay imposed under 11 U.S.C. § 362(a) from commencing an action against the New York State Department of Audit and Control (“DAC”) to recover a portion of a fund withheld from the debtor by DAC because such fund is not property of this esta...
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The United States trustee has moved for an order dismissing this Chapter 11 case or converting it to a case under Chapter 7 of the Bankruptcy Code or, in the alternative, directing the appointment of a Chapter 11 trustee. An unsecured creditor, Latham Sparrowbush Associates (“LSA”), has joined in the motion for a conversion to Chapter 7 or the appointment of a Chapter 11 trustee, but opposes th...
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MEMORANDUM OPINION This adversary proceeding was brought by Ronald C. Summerlin objecting to the *415 debtor’s discharge under 11 U.S.C. § 727(a)(4)(A). The debtor, Sylvia Bryan Outlaw, filed a counterclaim alleging that Mr. Summerlin violated the automatic stay of 11 U.S.C. § 362(a). Mrs. Outlaw also asked that the court award attorney’s fees to compensate her for having to ...
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DECISION ON MOTION AWARDING ATTORNEY FEES UNDER 11 U.S.C. § 523(d) This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(I). In the underlying adversary proceeding Household Finance Corporation (hereinafter H.F.C.) sought a determination that the debt due it from the defendant/debtor, JoAnn VanBu-r...
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DECISION AND ORDER Heard on July 31, 1986, on this Court’s order directing Thomas A. Curran, Esq. and Avram N. Cohen, Esq., to show cause why they should not be removed as trustee *54 and counsel to the trustee, respectively, for failing and/or refusing to prosecute the above-captioned adversary proceeding. The following brief summary of the travel and facts is included to supplement and ex...
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*676 MEMORANDUM OPINION AND ORDER RE: DEBTORS’ MOTION TO COMPEL CREDITOR TO TURN OVER PROPERTY This cause is before the Court on the Debtors’ Motion to Compel Commercial Bank and Trust Company (the Bank) to return $325.70 it admittedly setoff within the 90-day period preceding the filing of their Chapter 7 Petition. The Debtors have amended Schedule B-4 of their Chapter 7 Petition to claim as...
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MEMORANDUM OPINION On July 18, 1986 a hearing was held on the Complaint of debtor Kathryn A. Hicks alleging that the First National Bank of Harrison, Arkansas, (Bank) has acted in violation of 11 U.S.C. § 525, the debtor discrimination statute. In her complaint the plaintiff seeks reinstatement of her position with the Bank as teller for the Bank’s window position number two, with all of the re...
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MEMORANDUM ON CROSS MOTIONS TO ASSESS SANCTIONS AGAINST RESPECTIVE COUNSEL FOR PLAINTIFF AND DEFENDANTS AND ORDER GRANTING BOTH MOTIONS UNDER 28 U.S.C. § 1927 In this case, Debtor sued several parties for the balance due under a construction subcontract. There was a hard fought is *313 sue as to whether Plaintiff had properly-performed or performance had been waived or the co...
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MEMORANDUM OF DECISION This matter is before the Court for hearing on the objection to the debtors’ exemption of certain life insurance policies by the American State Bank and Trust Company of Great Bend, Kansas (hereinafter “American State” or “ASB”) and the trustee, Lynn Allison (hereinafter “the trustee”) and the above captioned complaint to determine the dischargeability of debt filed...
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ORDER RE CONFIRMATION Under consideration is the confirmation of three jointly administered Chapter 11 estates: Belco Vending, Inc., filed on October 24, 1983, William J. Bellissimo, filed on November 8, 1983, and Bellissimo Food Service Management Corp. (BFSM), filed on January 13, 1984. Belco is an operating company in the food service business. BFSM is a shell corporation that, at vari...
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MEMORANDUM OPINION Hearing was held October 1, 1986, on the question of the eligibility of this Trust to be a debtor. Clay Statmore of Lincoln, Nebraska, appeared on behalf of debtor. James Sharp of Beatrice, Nebraska, appeared on behalf of the PCA. Nancy Lof-tis of Lincoln, Nebraska, appeared on behalf of Metropolitan Life Insurance Company. Rodney Cathcart of Lincoln, Nebraska, appeared on be...
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MEMORANDUM OPINION This dispute involves avoidance of a lien under 11 U.S.C. § 522(f) and determination of secured value under 11 U.S.C. § 506(a). The IRS raises the application of case law In re Simonson, 758 F.2d 103 (3d Cir.1985), as a defense to this lien avoidance action. Frequently, the Bankruptcy Court is confronted by a fact situation in which judicial liens, as a matter of priority...
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In this chapter 11 case, the debtor seeks to accept an executory contract dated June 3, 1986, with Curtis Construction Co., Inc. (“Curtis”), whereby the debtor was to install roofing and siding on an addition to Volunteer Blind Industries. 11 U.S.C.A. § 365(a) (West Supp.1986). Curtis responds that an executory contract does not exist between the parties which can be accepted by the debtor. I ...
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OPINION AND ORDER On July 1, 1976, Alex and Margaret Ku-berski (“Kuberski”) sold an 80 acre tract of real estate in Warren County, Illinois, to William Bertelsen, the Debtor, (“Bertel-sen”) through a contract for deed. The contract fixed the purchase price at $128,-000.00. Under the terms of the contract, payment was to be made by a down payment of $2,500.00, a payment of $17,500.00 on Ma...
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OPINION AND ORDER The Debtors are farmers and participated in the Commodity Credit Corporation’s (CCC) Farm Price Support Program. Under this program, the CCC loans a farmer money at a pre-determined per bushel rate for corn the farmer grows. If the price of the corn rises above the loan rate, *659the farmer may sell the corn on the open market, repay the loan and retain the balance of the sale pr...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER State Farm Mutual Automobile Insurance Co. and Kimberly Ann Hart (“Plaintiffs”) filed their Complaint for Determination of Dischargeability of Debt on February 6, 1986. Jeffrey D. Wright (“Wright”) answered on February 24, 1986. The proceeding came before this Court for a hearing on August 28, 1986. Wright appeared at the hearing in person and b...
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OPINION This case presents the important question of whether or not a debtor may request reorganization under Chapter 11 of *416 the Bankruptcy Code for the primary purpose of resolving a serious dispute with a third party which is pending in the state courts. Elizabeth Dovydenas (“Mrs. Do-vydenas”) moves to dismiss this Chapter 11 proceeding pursuant to 11 U.S.C. § 1112(b) o...
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ORDER DENYING DEFENDANT’S MOTION FOR STAY PENDING APPEAL On August 25, 1986, formerly, this court issued its order remanding this civil action, which sounded in contract and breach of contract, to the Circuit Court of Jackson County. The bases of the order of remand, briefly summarized, were (1) that the action was not within the “core” jurisdiction of the bankruptcy court, a principle supported b...
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DECISION AND ORDER ON MOTION TO MODIFY STAY (PERIN) In this Chapter 11 case, movant seeks relief from the § 362 automatic stay with respect to a large acreage which she sold to debtor and upon which she holds a mortgage. The matter came on for final hearing. As anticipated in our pretrial order of July 23,1986, the issues to be decided upon the final hearing were whether movant was entitled to ...
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DECISION AND ORDER The two cases identified in the caption are Chapter 7 cases. The Estate Administrator has called our attention to them, suggesting that we “may want to think about converting these cases to Chapter 13 proceedings.” The basis for the suggestion is 11 U.S.C. § 707(b) which provides: § 707. Dismissal ****** (b) After notice and a hearing, the court, on its own motion and n...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the motion of debtor, S.T.R. Corporation (“S.T. R.”), asking this Court to stay all the proceedings before the National Labor Relations Board (“NLRB”), and briefs of counsel. On or about February 14, 1986, the Retail Store Employees Union Local 880, Food Division Insurance Fund, Retail Store Employees Union Local 880 ...
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DECISION Heard on September 8, 1986 on the trustee’s complaint, under 11 U.S.C. § 547(b), to set aside, as a preferential transfer, a payment of $2,457.54 made by Baroness, Inc. to B.S. Importing Co., Inc., within the preference period. The parties stipulated to the following facts.1 On April 16, 1985 B.S. Importing Co., Inc. (BSI) received an order from Baroness, Inc. (Baroness) for 37,000 feet o...
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ORDER REGARDING DEFENDANT’S MOTION FOR DETERMINATION OF CORE, NON-CORE PROCEEDING AND REGARDING ABSTENTION AND JURY TRIAL On April 2, 1986, the Trustee filed a Complaint against State Farm Mutual Automobile Insurance Co. (State Farm) seeking actual damages in a minimum sum of $259,000 and punitive damages in the amount of $300,000, plus costs and attorneys fees. The Trustee alleges that the Deb...
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ORDER ON REMAND On September 27, 1985, this court dismissed this adversary complaint seeking exception from discharge under 11 U.S.C. § 523(a)(2)(B) upon the ground that: *44 By the provisions of B.R. 4007(c), the plaintiff was required to file this complaint not later than January 13, 1985. This complaint, filed July 12, is late and, therefore, plaintiffs motion for a conti...
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OPINION MOBILE HOME — CONDITIONAL SALE — RETENTION OF TITLE This matter is before the Court on plaintiffs motion for summary judgment. Plaintiff argues in his motion that a trustee in bankruptcy may use his “strong arm” powers to avoid the interest of a mobile home vendor who sells pursuant to a “conditional sales contract” and who fails to deliver the certificate of title to her buyer. For the r...
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MEMORANDUM OP OPINION AND ORDER This matter is before the Court upon the objection of the Debtor, Allen W. Shaw, to a proof of claim filed by his former spouse, Jana R. Shaw, and the objection to confirmation of Plan filed by Jana R. Shaw. Due notice of the hearing was made upon all parties entitled thereto. Pursuant to the requirements of Rule 7052 of the Bankruptcy Rules of Procedu...
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MEMORANDUM OPINION The sole issue before the Court in this matter is a narrow matter of first impression — and conceivably of last impression— in interpretation of an obscure Pennsylvania statute, now codified at 42 Pa.C.S.A. § 4305(b). The issue is whether a judgment rendered by the United States District Court for the Eastern District of Pennsylvania while it is sitting in Reading, Berks Coun...
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MEMORANDUM DECISION AND ORDER ON APPLICATION FOR A PRELIMINARY INJUNCTION A Chapter 11 debtor, Coaches Sports Techniplex, Inc. (“Coaches”) seeks a preliminary injunction enjoining defendants, Thomas E. Williams (“Williams”), Tom Williams, Inc., Tom Williams Sports, Ltd. and Concorde Financial Corporation (“Concorde”), from: a) engaging in any business or commercial activity, directly or indirectly...
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MEMORANDUM DECISION Dr. John D. Todd (“Dr. Todd”), holder of a note secured by a second deed of trust on the residence of Michael Bessey (“Bes-sey”), has moved the Court to vacate the automatic stay to permit him to foreclose on the Bessey residence. Bessey resists, claiming the security interest of Todd is worthless and need not be adequately protected. *639 FACTS Bessey purchased his lu...
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ORDER ON CONFIRMATION A hearing on confirmation of the Debtors’ Chapter 13 case was held on September 18, 1986. There was no written objection filed to confirmation by the Trustee, any creditor or any party in interest. The Trustee, however, verbally objected to confirmation at the hearing. 1 The Court, based on the Trustee’s analysis of the plan, began an inquiry into the ques...
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*636 FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT I Statement of Proceedings This adversary proceeding came on for a bench trial on May 8, 1986 pursuant to pretrial Order of October 25, 1985 on the amended complaint of G and E Incorporated d/b/a Howard and Sons (hereinafter: “Howard”) filed on June 20, 1983 alleging that the indebtedness to it by the Debtor-Defenda...
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66 B.R. 390 (1986) In re Ronald C. TAYLOR and Jayme Taylor, t/a Sir Ronald's Restaurant and Lounge, and J.J. Personnel, Debtors. Bankruptcy No. 82-2961, Motion No. 86-2627. United States Bankruptcy Court, W.D. Pennsylvania. October 6, 1986. *391 Mary Anne McKeen, Lampl, Sable, Makoroff & Libenson, Pittsburgh, Pa., for debtors. Robert J. Taylor, Ambridge, Pa., Trustee. *392 MEMORANDUM OPINIO...
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MEMORANDUM OF DECISION Connecticut National Bank (“CNB”) has filed an amended complaint alleging, in its second count, 1 that the debtors/defendants entered into a transaction with the plaintiff under which they guaranteed a loan to Glen Food Shoppe, Inc., which was listed as a debt in their Chapter 7 petition. The plaintiff further alleges that the debtors, “as sole owners and...
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ORDER ON MOTION TO TRANSFER ADVERSARY PROCEEDING AND ON MOTION OF WITHDRAWAL OF REFERENCE OF ADVERSARY PROCEEDING AND CONSOLIDATION OF CASES CONTINGENT UPON TRANSFER OF ADVERSARY PROCEEDING THIS IS a Chapter 7 case and the matters under consideration are two motions, filed by Harold W. Burlingame (Burlin- *41 game), the Plaintiff in the above-captioned adversary proceeding, f...
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ORDER ON MOTION FOR SUMMARY JUDGMENT ON OBJECTION TO CLAIM NUMBER 78 THIS IS a Chapter 11 case, and the matter under consideration is an objection to the allowance of a claim filed in this case by General Insurance Company of Amer-ica, (GIC). The matter is presented by George Hunt, Inc. (Debtor) by way of a Motion for Summary Judgment. The Motion is based on the contention of the Debt- or that ...
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64 B.R. 1013 (1986) In re PARK WEST HOTEL CORP. d/b/a Park West Hotel & Club Debtor. Bankruptcy No. 86-11095-JG. United States Bankruptcy Court, D. Massachusetts. October 2, 1986. *1014 Mark N. Polebaum, Hale & Dorr, Boston, Mass., for debtor. Whitton E. Norris, III, Peabody & Brown, Boston, Mass., for movant. MEMORANDUM JAMES N. GABRIEL, Bankruptcy Judge. The matter before the Court...
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MEMORANDUM AND ORDER David J. Panaia (the “Debtor”) moves for an award of attorneys’ fees and costs against the Connecticut National Bank (the “Bank”). For the reasons stated herein, the Court declines to award attorneys’ fees under 11 U.S.C. § 523(d). I. FACTS The Bank brought this adversary proceeding against the Debtor on June 29, 1984, seeking to determine the discharge-abil...
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MEMORANDUM OPINION and ORDER OF COURT Presently before the Court are the Fee and Expense Applications filed by the Debtor’s counsel, the Debtor’s special counsel, the Debtor’s accountant, and the attorney and accountant for the Committee of Unsecured Creditors (“Committee”). Prior to reviewing these applications, we present a synopsis of the case. This bankruptcy began with the filin...
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On July 9, 1982, Independent Refining Corporation (“IRC”), voluntarily filed its petition for relief under Chapter 11 of the Bankruptcy Code. On September 5, 1984, the Department of Energy (“DOE”) filed a proof of claim in two parts derived from alleged violations of Mandatory Petroleum Price Regulations. *624 One part of the claim derives from a Reseller violation whereby IR...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS ADVERSARY proceeding was commenced by Bob Cooper, Inc., d/b/a BCI Utilities Contractor (BCI), a Debtor seeking relief under Chapter 11 of the Bankruptcy Code. The matter under consideration is a Motion for Summary Judgment filed by Empire Pipe & Supply Company (Empire Pipe) against the complaint of BCI, the Plaintiff, and on its crosscl...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case, and the matter under consideration is a Motion for Summary Judgment filed by Tambay Trustee, Inc., (Trustee). The Motion is filed in the above-captioned adversary proceeding, in which the Trustee seeks to avoid a transfer alleged to be a voidable preference, received by W.T. Green, the Defendant named in the adversary proceedi...
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ORDER DENYING MOTION TO REOPEN CASE The debtor’s motion (C.P. No. 17) to reopen this closed case was heard on September 29. The case was closed after the debtor had amended his schedules to include the subrogee of a creditor which had previously been listed on his schedules. The debtor’s present purpose is to invoke this court's jurisdiction to determine the dischargeability of his obligation to t...
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MEMORANDUM AND DECISION The facts that have brought the present question before the court are undisputed. They are also somewhat bizarre. Glen Kirsch went into the oil business in a serious way in the early 1980’s. He owned a number of leases for various properties in Illinois. He invested in other leaseholds in Kentucky and Texas. His success in the oil business was short lived. In the l...
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ORDER The matter before the court is a motion by the debtors, Walter and Billie Webster (Debtors), for confirmation of their First Amended Plan of Reorganization pursuant to section 1129(b)(1) of the Bankruptcy Code. The Debtors’ initial plan of reorganization, filed January 16,1986, was objected to by numerous creditors including Farmers Home Administration (FmHA) and was not confirmed. The De...
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MEMORANDUM DECISION AND ORDER ON MOTION TO RECONSIDER OPINION AND ORDER OF AUGUST 8, 1986 AND ALTERNATIVELY, MOTION FOR RECUSAL AND, ALTERNATIVELY, MOTION FOR CHANGE OF VENUE Lurking in the thicket of words, a veritable morass that has been presented in these papers is the possibility that the debt- or may be entitled to a hearing on her claim to relief under, among other things, F.R.Civ.P. 60(b)....
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ORDER ON OBJECTION TO CLAIM OF EXEMPTIONS In the above-styled case, Julian Curtis Brown filed an objection to the debtor’s claim of exemptions. The objection has its factual basis in a judgment for personal injuries obtained by the objecting party against the debtor and its legal basis in two Alabama statutes, Ala.Code §§ 6-10-2, 6-10-6 (1975), and caselaw construing the statutes, which deny de...
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FINDINGS AND CONCLUSIONS ON CHAPTER 13 PLANS Introduction — Each of the above-styled cases (respectively referred to as “Hartdegen” and “Heath”) was commenced in this Court on March 10, 1986, by a petition filed under title 11, chapter 13, United States Code, and remains pending under said chapter of the bankruptcy statute. Each case came before the Court for a hearing on confirmation of th...
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MEMORANDUM OF DECISION ON OBJECTION TO CONFIRMATION OF PLAN I. The matter before the court is the objection of a mortgagee, Society for Savings (Society), to confirmation of the debtors’ chapter 13 plan. The sole issue presented by the parties is whether the debtors’ discharge in a prior chapter 7 case of their indebtedness on an underlying mortgage note precludes the debtors’ use of...
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ORDER Plaintiff/Trustee initiated this adversary proceeding on February 19, 1986 to recover an alleged preferential transfer of $2,127.00. The case is before the court on cross-motions for summary judgment by both parties. The following material facts are undisputed: The debtor filed its original bankruptcy petition on August 18, 1983. Two payments were made by the debtor to the defe...
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MEMORANDUM OPINION AND ORDER GRANTING STATE’S MOTION EXCEPTING ITS PENDING ENVIRONMENTAL SUIT FROM STAY This cause comes before the Court on the motion of the State of Illinois for an Order excepting its pending environmental suit from the automatic stay. For the reasons set forth below, the motion is granted. State Court Litigation On May 16, 1985, the State of Illinois fil...
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OPINION The Debtor filed a Chapter 7 proceeding in bankruptcy. In the Chapter 7 proceeding he filed two adversary proceedings under Sections 502 and 506 of the Bankruptcy Code to determine the secured status of the claim of Bank of Yates City in certain farm machinery, livestock equipment, and livestock. Adversary No. 86-8057 involves the farm machinery and livestock equipment, and Advers...
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MEMORANDUM OPINION The issue facing the court today is whether an obligation arising out of a contractor/debtor’s failure to pay a material-man from the payments received from the owner of the property where the materials were used to make improvements gives rise to a nondischargeable obligation under Sec *290 tion 523(a)(4) 1 of the Bankruptcy Code. The parties su...
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REASONS FOR ORDER DENYING MOTION FOR INTERVENTION, DENYING MOTION FOR INJUNCTION PENDING DETERMINATION OF INTERVENTION, AND AMENDING PRIOR ORDER The factual background of this case is set forth in considerable detail in pleading 103, “Determination of Entitlement to In-terpleader Relief” dated August 26, 1986, 67 B.R. 184. In substance, Swaggert Ministries (Owner) employed Tudor Construction (Gen...
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MEMORANDUM ON FRAUDULENT CONVEYANCE The controversy before the Court is an adversary proceeding brought by the plaintiff, Sampco Incorporated against the debt- or, Myron Snyder, his wife, Inez Snyder, Richard G. Kagan, who is the Court-appointed trustee in bankruptcy, and the Framingham Trust Company. All of the defendants have submitted answers, in addition, Inez Snyder has submitted thr...
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MEMORANDUM OPINION This matter was tried before the court on the Trustee’s Motion to Determine Claim of Dernham Company and to Order Other Relief, as amended, and Dernham Company’s answer thereto. Subsequently, both the Chapter 11 trustee and the Dernham Company provided this court with memoranda in support of their respective positions and the unsecured creditors’ committee also filed a ...
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*281 DECISION & ORDER The debtor, Mary Carilli (“Carilli”), brought on a motion to reopen her Chapter 7 bankruptcy proceeding for the purpose of avoiding a judicial lien alleged to impair a claimed section 522(d)(1) exemption. The issue presented is whether the debtor has standing to bring an action under § 522(f) after she has sold the claimed exempt property. FINDINGS OF F...
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MEMORANDUM DECISION The defendant/debtor, Gary Dean Buckley, is a farmer. He first borrowed money from the Farmers Home Administration (FmHA) in 1980. On September 17, 1981, *284he executed a real estate mortgage on his real estate in Beadle County, South Dakota, in favor of FmHA. The mortgage contained a clause assigning the rents and profits of the real estate to the FmHA. The debtor defaulted ...
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MEMORANDUM DECISION This case is before the Court on the issue of whether an assignment of rents clause contained in a mortgage must be perfected after default before the mortgagee is entitled to the rents. FACTS The debtors, Ronald and Judy Ziegler, own approximately 727 acres in Brookings County, South Dakota. On March 20,1978, the debtors entered into a loan transaction with ...
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64 B.R. 980 (1986) In re WORLD FINANCIAL SERVICES CENTER, INC., a California corporation, dba World Financial Systems, Bargain Furniture, and Bargain Furnishings, Appliances & Electronics, Debtor. Harold S. TAXEL, Trustee in Bankruptcy, Plaintiff, v. COMMERCEBANK, a California corporation, Defendant. Bankruptcy No. 84-04452-H7, Adv. No. C86-0116-H7. United States Bankruptcy Court, S.D. Califo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTIONS AND ORDER DENYING OBJECTION This matter came on for hearing before the Honorable Conley S. Brown on August 15,1986. Douglas B. Provencher appeared for the Debtors, Pasquale and Shelly Ferraro, and David N. Chandler appeared for the trustee, William B. Grover. After reviewing the pleadings filed by...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial on September 22, 1986, upon an adversary proceeding filed by plaintiff, Sheppard’s Den *276 tal Centers, Inc. (“Sheppard’s”), seeking declaratory relief and to set aside certain post-petition transfers pursuant to 11 U.S.C. § 549. The Court having heard the testimony and examined the evidence presented, observed the candor a...
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ORDER DENYING MEMBERSHIP OF THE MALDEN PUBLIC SERVICE DISTRICT ON THE UNSECURED CREDITORS COMMITTEE THIS CAUSE having come before the Court on September 4, 1986 upon the creditor Malden Public Service District’s Motion for Membership on the Committee of Unsecured Creditors made pursuant to 11 U.S.C. §§ 1102(b)(1) and 1102(c) and Bankruptcy Rule 9013 and the Court having examined the evide...
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MEMORANDUM-OPINION This matter comes before the Court on Motions for Summary Judgment by the defendant, Internal Revenue Service, and by the plaintiffs, First National Bank of Louisville, Liberty National Bank & Trust Company, and Credithrift of America, Inc. (the “banks”). The banks’ Complaint alleges an interest in certain funds now being held by the Receiver of the Jefferson Circuit Court by v...
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ORDER APPROVING ABANDONMENT This case came on for hearing on the trustee’s motion under 11 U.S.C. § 554 for abandonment of fourteen drums of various chemicals. A hearing was held on August 27, 1986. John A. Hedback appeared for the United States Trustee; Thomas L. Dosch appeared for the State of Wisconsin; Richard J. Harden appeared for the Creditors’ Committee in the former Chapter 11 ca...
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*595 ORDER RE: DEBTOR’S OBJECTION TO CLAIM OF TRAVELERS INDEMNITY COMPANY (SET X, CLAIMS 60 AND 632) This Chapter 11 case came on before the undersigned United States Bankruptcy Judge on September 3, 1986, upon the objection of Debtor K-tel International, Inc. (hereinafter “K-tel”) to claims filed by Travelers Indemnity Company (hereinafter “Travelers”). These proceedings arise out of the C...
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*234 ORDER DENYING MOVANT’S MOTION FOR RECONSIDERATION The court formerly entered its final decree and judgment on January 30, 1986, declaring the sale agreement of July 26, 1984, between First United Partners 9 (seller) and Sexton Family Trust (buyer) void, and declaring, as a result, that the amendment to the July 17, 1984, lease agreement entered into between Williams Meat Com...
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OPINION What is involved here are the rights, if any, of the defendant, Stefan Szwarce, to certain property, titled in the debtors, Barbara Willis and Kato Restaurant, Inc., when both filed under Chapter 11. It is the defendant’s position that he is entitled to specific performance of a settlement agreement made on August 6, 1984, which committed Willis to transfer the property to him. For the re...
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OPINION OF THE COURT I.FINDINGS OF FACT 1. On January 26, 1982, the Pennsylvania Public Utility Commission (PUC) entered an order issuing eight hundred (800) call or demand certificates of public convenience to Metro Transportation Co., t/a Yellow Cab Co., the Debtor in this proceeding, authorizing the operation of eight hundred (800) taxi-cabs in the city of Philadelphia. 2. Th...
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DECISION Heard on May 9, 1986 on the complaint of Newport Offshore, Ltd. (NOL) to recover $8,950 from Boston Fuel Transportation, Inc. (BFT) for $1,200 for repair work allegedly performed by the debtor on one of defendant’s barges, and towing charges of $7,750. See Plaintiff’s Exhibits A, D, E. After a lengthy hearing, at which most of the testimony was conflicting and in sharp disagreement, and b...
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OPINION On the 57th day after filing a Chapter 11 case, the debtor moved to extend the time for assumption or rejection of a lease of nonresidential real property. The motion was heard 90 days after the case was filed. The Bankruptcy Judge ruled that under 11 U.S.C. section 365(d)(4) an extension could not be granted because more than 60 days had passed after the case was filed. 53 B.R. 805. He...
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MEMORANDUM OPINION On January 3, 1985, M.L. and Frances Green, debtors, filed a voluntary petition for relief under the provisions of chapter 13. The amended plan proposed to pay unsecured creditors around twenty-five percent of each allowed claim. Twenty-five percent is more than unsecured creditors would receive in a chapter 7 case according to the schedules. A claim of Peoples Bank and Loan ...
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MEMORANDUM DECISION I. INTRODUCTION At issue in this matter is whether the claim of the Internal Revenue Service (hereinafter “IRS”) against the debtor’s estate for delinquent income taxes should be disallowed due to the fact that the proof of claim submitted by the IRS was filed after the claims bar date. *257 II. SUMMARY OF FACTS On January 12,1983, Ken...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION, THE MATTER under consideration in this Chapter 7 case is an adversary proceeding in which the First National Bank (Bank) seeks a determination of the dis-chargeabililty of debt owed to First National of Florida by J. Mortimer Greene, the Debtor involved in this Chapter 7 ease. In its two count complaint the Bank alleges that the Debtor ...
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ORDER ON MOTION TO LIFT AUTOMATIC STAY AND ORDER ON MOTION TO ASSUME LEASE THE MATTERS under consideration in this Chapter 11 case are a Motion to Lift *581 Automatic Stay filed by Amaprop Developments (Amaprop), a landlord of Communications Company of America, the Debtor (Debtor), and a Motion to Assume Lease filed by the Debtor. Amaprop seeks relief from the automatic stay in order to gain ...
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ORDER ON MOTION FOR IMPOSITION OF SANCTIONS FOR FAILURE TO RESPOND TO DISCOVERY RE- . QUESTS THE MATTER under consideration in this Chapter 11 case is a Motion for Imposi *579 tion of Sanctions for Failure to Respond to Discovery Requests, filed by Liberty Savings & Loan Association (Liberty). The Motion is filed in the above-captioned adversary proceeding commenced by Paul T...
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ORDER On September 5, 1986, this Court entered an Order and Judgment declaring defendant’s debt to plaintiff to be dischargeable. The Order was filed on the same date. On September 16, 1986, plaintiff filed its Notice of Appeal with the Clerk of the Bankruptcy Court. On request of the Court, both parties have filed briefs on the issue of timeliness of plaintiff’s Notice of Appeal. Plaintif...
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MEMORANDUM DENYING CONFIRMATION When the Cabot Corporation decided to enter the business of importing and distrib *383 uting LNG, liquified natural gas, it did so by creating two wholly owned corporations. The debtor, Distrigas Corporation, whose only function was to hold the licensing authority to import the LNG from Algeria, which it carried out by way of a contract with So...
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ORDER VACATING ORDER OF DISMISSAL I. On January 13, 1986, this Court entered an order, reported at 56 B.R. 637, dismissing the debtor’s Chapter 7 bankruptcy petition pursuant to 11 U.S.C. § 707(b). The Court found that Bell’s debts were primarily consumer debts and that granting him relief under Chapter 7 would be a substantial abuse of the provisions of that chapter because he was able to re...
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OPINION On consideration of the motion seeking relief from the automatic stay filed by First Citizens National Bank of Tupelo, Mississippi, hereinafter referred to as First Citizens or Bank; no responsive pleading having been filed by the debtors, David F. Abell and Donna F. Abell, d/b/a Dave’s Camera Shop; on objection to the motion seeking relief from the automatic stay, as well as, a counter...
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ORDER GRANTING MOTION TO AVOID LIEN EXCEPT AS TO SPECIFIED ITEMS Debtors filed their petition for relief under Chapter 7 on May 9,1986, attended the Section 341 meeting on June 24, 1986, and filed a Motion to Avoid Lien on August 25, 1986. The lienholder was ITT Financial Services (ITT) and its admittedly non purchase money, non possessory lien was on a “Penney’s” Television, a “Penney’s” stere...
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*371 MEMORANDUM ON DEFENDANTS’ DEMANDS FOR A JURY TRIAL At issue is whether a defendant to a preference action, 11 U.S.C.A. § 547 (West 1979), has a right to a jury trial where the only relief sought is a monetary judgment. 1 If so, the court must also determine whether a bankruptcy court has authority to conduct a jury trial in a core proceeding, 28 U.S.C.A. § 157(b)(...
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*351 MEMORANDUM ON THE LIQUIDATING TRUSTEE’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT Plaintiff in these consolidated preference actions, 11 U.S.C.A. § 547 (West 1979), is the liquidating trustee of a trust established under the modified plan of reorganization confirmed by the court in the Southern Industrial Banking Corporation (SIBC) case. Defendants, former holders of investment c...
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OPINION I This is an appeal from the trial court’s refusal to set aside an ex parte order encumbering a residence. Credit Alliance Corporation (“Credit Alliance”), an unsecured creditor of the estate, appeals on four grounds. First, Credit Alliance contends that the ex parte order should be set aside because, contrary to statute and the Constitution of the Unite...
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OPINION Downey Savings & Loan Association (“Downey”) appeals from the bankruptcy court’s confirmation of a Chapter 13 debt- or’s composition plan. The debtor Metz, who is the appellee, filed three bankruptcy petitions within six months. After receiving a discharge in the first of his bankruptcy cases, a Chapter 7, Metz filed two consecutive Chapter 13 petitions. This procedure is often called a “...
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OPINION The United States of America appeals a summary judgment entered by the bankruptcy court ordering that three certain parcels of real property listed on the debt- or’s schedules were free of any right, title or interest of the United States (Internal Revenue Service) arising from unpaid assessments made in the name of debtor’s former husband. We conclude that the debtor’s former husband...
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OPINION These two appeals (BAP Nos. CC-86-1001 and CC-86-1002), which are concerned with an interrelated judgment and order in the same bankruptcy case, are hereby consolidated. We AFFIRM the bankruptcy court. I. A. In CC-86-1001, Gilbert McAuley, the Chapter 7 debtor, appeals from a “renewed” judgment on complaint for declaratory relief entered in favor of Orange Coast Thr...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Objection of GLENN WEEKS (“Weeks”), holder of an unsecured claim, to Confirmation of Debtor’s (“Todd”) Chapter 13 Plan. For the reasons stated below, the Objection is sustained and confirmation of the Plan proposed with amendment moved for on July 17, 1986 is denied. The facts stated below are derived from the pleadings...
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MEMORANDUM OPINION On April 23, 1986 a hearing was held on the trustee’s objection to the amendment to Schedule B-4 in which the debtor claims as exempt cash surrender proceeds of certain life insurance policies. The Court has jurisdiction to hear this matter as a core proceeding. 28 U.S.C. § 157(b)(2)(B) & (0). The following constitutes the Court’s findings of fact and co...
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ORDER ON MOTION FOR RELIEF FROM ORDER FIXING TIME FOR FILING CLAIMS THE MATTER under consideration in this Chapter 7 case is a Motion for Relief *247 From Order Fixing Time for Filing Claims, filed by Indianapolis Morris Plan Corporation (IMPC), a creditor in the above-captioned case. The facts relevant and germane to a resolution of this controversy are as follows: Jose...
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ORDER AUTHORIZING AMENDMENT TO ADD ADDITIONAL CREDITOR This voluntary chapter 7 petition was filed on December 2, 1985. The trustee filed a Report of No Distribution (C.P. No. 18) on April 17, 1986. The claims’ bar date was April 9. The debtor was granted a discharge on April 1. The debtor has moved (C.P. No. 21) for leave to add a creditor, General Vending Service, Inc., to the scheduled list ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause coming on for trial on the issues posed by claim No. A-103 of Arlington Plaza Limited Partnership (“Arlington”) for $3,704,223.18 and the objections thereto of the Unsecured Creditors’ Committee of Goldblatt Bros. (“Committee”), the Court having taken and considered evidence offered by the parties and the respective proposed Findings of Fact an...
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ORDER GRANTING MOVANT’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY Movant seeks relief from the automatic stay with respect to certain combine parts and appanages which the debtor added to the combine (in which movant admittedly has a valid and perfected security interest) subsequent to the date of commencement of the chapter 11 proceedings which preceded the within chapter 7 proceedings. At the r...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DIRECTING TRUSTEE TO PAY $13,008 PLUS ANY INTEREST EARNED THEREIN TO JOHNNIE MARION RUTHERFORD AND $45,000 PLUS ANY INTEREST EARNED THEREIN TO THE ESTATE OF AUDRY F. RUTHERFORD This’ action to determine the validity and priority of liens came on before the court for hearing of its merits on September 12, 1986, in Kansas City, Mi...
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ORDER OVERRULING OBJECTION TO CONFIRMATION This matter is before the Court upon an objection to confirmation of the Chapter 13 plan proposed by Marjorie Helen Welch. The objection, filed on behalf of Roger L. Welch, ex-husband of the debtor, was heard by the Court. The debtor has proposed a Chapter 13 plan which provides, in part, for graduated payments to the Chapter 13 Trustee over a period of 5...
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*540ORDER After notice and a hearing this matter comes on for consideration of a “Motion of the United States Department of Energy for an Allowed General Unsecured Claim” and an objection thereto filed by William J. O’Connor (“O’Connor”), the debtor in possession. After hearing statement of counsel and upon review of the briefs and supplemental briefs filed in connection with this matter, the cour...
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MEMORANDUM OPINION This matter is before the Court on the Defendant’s Motion for Summary Judgment in this adversarial proceeding in which the Plaintiff is the Debtor. The Defendant seeks summary judgment dismissing the Plaintiff’s three-count Complaint to compel the turnover of a 1983 Oldsmobile sedan under 11 U.S.C. § 543; to avoid an alleged preferential transfer of $50,000.00 under 11 U.S.C....
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ORDER ON MOTION TO ABANDON PROPERTY The motion of the trustee, Tom McGre-gor, to abandon property of the estate was heard September 23, 1986. The property sought to be abandoned is real estate and equipment used in connection with the former manufacturing business of the debtor. The property is said to be contaminated and a hazard to health and safety. Thus the trustee has been unable to reduce...
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MEMORANDUM The matters before the Court are the complaints filed by Thomas J. Hickey, the Trustee of H & A Construction Co., Inc. (“H & A” or the “Debtor”) on September 7, 1983 against Thomas G. Gallagher, Inc. (“Gallagher”), Maurer & Sforza, Inc. (“Maurer”) and E.G. Sawyer, Inc. (“Sawyer”) (collectively, the “defendants”). The Trustee alleges that the defendants received preferential tra...
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This matter is before the court upon the motions of John Hancock Mutual Life Insurance Company (“John Hancock”) and Production Credit Association of the Fourth District (“PCA”) for relief from the automatic stay provided by 11 U.S.C. § 362 in order for the movants to foreclose upon property of the debtors, David and Paula Pullins. FACTS From the evidence introduced at the hearing it appears t...
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DECISION DETERMINING AMOUNT OF ALLOWED SECURED CLAIM AND OTHER MATTERS This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B) and (O) in which the Chapter 13 Trustee and the attorney for Milton Federal Savings and Loan Association (hereinafter Milton), holder of the first mortgage on...
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This matter arises upon the Debtor’s motion for use of cash collateral. In order to rule on the motion, the Court must first resolve what constitutes cash collateral. Pursuant to the stipulation of the parties, the scope and extent of IPCA’s (Interstate Production Credit Association) security interest will be resolved in connection with the motion for use of cash collateral rather than in a sep...
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MEMORANDUM OPINION The issue is this Court’s jurisdiction to hear the within Complaint. The Debtors filed in this Court their petition under Chapter 7 and, thereafter, on March 14, 1986, filed the within Complaint seeking a determination of the discharge-ability of a tax liability asserted by the Internal Revenue Service (“IRS”). The United States filed a motion to dismiss, as well as an Answ...
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ORDER Following the August 19, 1986 hearing the Court took one issue under advisement upon the parties’ stipulations and briefs. The issue is whether the Court should grant or deny the trustee’s objection to the debtors’ claim as exempt all interests in four whole life insurance policies. *40 This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B), (0). The following constitute the C...
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MEMORANDUM AND ORDER The First State Bank of Harvard (“Bank”) made a commercial, non-consumer loan in the amount of $37,000 to the debtor on September 14, 1974. At that time the debtor signed a promissory note containing a confession of judgment clause. The confession of judgment clause provided that upon default the Bank without notice to the debtor could appoint an attorney to appear in...
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OPINION This matter is before the Court on a motion of the debtor for turnover of certain monies and property held by Grand Rapids Plastics, Inc., and/or Arthur J. Bott. For the reasons expressed below, the debtor’s motion is denied. A brief summary of the rather complicated facts in this case is necessary to understand the Court’s order: The debtor went into business with Arthur J. Bott (“...
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MEMORANDUM OPINION This matter came before the Court on debtor’s Objection to Allowance of Claim of Gregory Dean Coston. Gregory Dean Co-ston (“creditor”) responded and the matter was heard on March 31, 1986. The dispute arises out of a provision in the marital-settlement agreement between the creditor’s parents, debtor and Camille G. Coston, whereby the ownership of a Kentucky famil...
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MEMORANDUM OPINION This matter came before the Court on defendant-debtor’s motion to dismiss plaintiff’s complaint to determine the discharge- *228 ability of a debt pursuant to 11 U.S.C. § 523(a)(5) and § 523(a)(6) of the Bankruptcy Code. The facts in this case are undisputed. Plaintiff and defendant were divorced in 1982 and plaintiff was granted custody of their minor...
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MEMORANDUM OPINION This matter came before the Court on the Complaint to Determine Dischargeability. Trial on the merits was had and counsel submitted legal briefs on the issues in question. The facts are these: In 1981, as part of a settlement for a debt owing to the plaintiffs, the Haworth group, the debtor, Kap-nison, pledged as collateral security for an $80,000.00 loan, 200 shar...
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DECISION & ORDER Beker Industries Corp. (“Beker” or the “Debtor”) seeks, by motion dated July 14, *902 1986, to dispose of certain assets by sale pursuant to § 363(b)(1) and (f) of the Bankruptcy Code, 11 U.S.C. § 363(b)(1), (f) (1984) (the “Code”) or, in the alternative, by abandonment pursuant to § 554 of the Code, 11 U.S.C. § 554. These assets consist of a phosphate fertil...
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MEMORANDUM AND DECISION A contempt motion was brought before this Court alleging a violation of the automatic stay provisions of 11 U.S.C. § 362(a). The motion alleges that Crystal Leasing & Development, Inc. and its lease manager, Ernie Shanders, violated the automatic stay by repossessing a leased vehicle in the possession of the debtors after the debtors filed their petition for relief and con...
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MEMORANDUM OPINION This matter was heard August 26, 1986, on the debtor’s objection to the motion of the Standing Trustee recommending release of the debtor’s 1983 Toyota to the secured creditor Fidelity Federal Savings & Loan Association (hereinafter “FFS”). FFS filed a late proof of claim and the Standing Trustee recommended that the claim be disallowed and that the vehicle be released ...
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ORDER DETERMINING DISCHARGEABILITY This matter came on for trial on July 17, 1986, upon Plaintiff’s complaint to determine the dischargeability of Defendant’s debt to Plaintiff, pursuant to 11 U.S.C. § 523(a)(5), on the grounds that Defendant agreed to defend and hold Plaintiff harmless on a debt to Old Republic Insurance Company in the approximate amount of $2,500. Upon consideration of ...
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Submitted on briefs, on a motion filed by Citizens Trust Company seeking, inter alia, an order discharging and releasing Citizens from any claims which may arise as a result of its acceptance, on April 16, 1986, of a $10,735.16 payment from the debtors. That payment was made by the debtors, as guarantors of a loan from Citizens to MDJ Enterprises, Inc., a joint venture operating Michael’s Restaura...
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MEMORANDUM DECISION Lemons and Associates, Inc. and related entities (“Lemons”) filed under Chapter 11 of the Bankruptcy Code in April 1985. Immediately at issue was the status of several thousand “investors” who may have ownership rights in promissory notes secured by deeds of trust on real property. The above-captioned adversary proceedings were chosen as “test cases” and consolidated f...
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MEMORANDUM DECISION AND ORDER DENYING MOTION TO REMAND AND GRANTING MOTION FOR SUMMARY JUDGMENT This case is yet another example of the enormous appetite of Stuart R. Ross (“Ross”) for litigation, particularly against those who have had the effrontery to sue him. In early January 1985, Merrill Lynch Commodities, Inc. (“Merrill”), Rosenman, Colin, Freund, Lewis & Cohen, Esqs. (“Ro-senman”)...
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DECISION AND ORDER ON MOTION FOR RECONSIDERATION On August 11, 1986, our Decision and Order Re Right to Arbitrate was issued, in which we denied the application of Ohio Valley Carpenter’s District Council, Local No. 415, movant herein (hereafter “Union”), to proceed to arbitration on certain claims. Union now moves that we reconsider our Decision and Order. We regret an error in such Decision and ...
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MEMORANDUM OPINION In January, 1986, the Plaintiff, General Electric Credit Corporation (“GECC”) filed a Complaint for Reclamation of Property, Adequate Protection and/or Relief from Stay of the Debtor’s six pieces of heavy equipment. The Trustee denies that GECC has a security interest in the equipment first because the confirmation of the Chapter 11 plan did not provide for a retention ...
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MEMORANDUM OF DECISION CONCERNING CROP LIENS Statement of Facts On or about January 16, 1984, Plainsman *187 Agricultural Credit Corporation (PACC) 1 loaned $356,865.00 to Noah Lemley. As collateral for its loan, PACC received (among other things) a Security Agreement on: All farm supplies, farm products and crops: and all natural increase thereof now...
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ORDER This case is before the Court on a motion by Providers Fidelity Life Insurance Company (“Providers”) to compel discovery of American Centennial Life Insurance Company (“American Centennial”). The proceeding arose from a contract, entered into with this Court’s approval, under which the debtor, Tidewater Group, Inc., agreed to sell Providers all the stock of American Centennial,...
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*177 ORDER Plaintiff initiated this proceeding to recover an allegedly preferential transfer. The case is presently before the Court on plaintiffs motion for summary judgment. The following material facts appear to be undisputed: On or about May 11, 1983, the defendant issued an invoice to the debtor for goods delivered and services rendered in the amount of $3,783.00. The t...
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*28 MEMORANDUM DECISION AND ORDER RE: APPLICATION FOR APPROVAL OF AGREEMENT BETWEEN TRUSTEE AND DEBTOR On April 29, 1986, the Trustee, Joseph S.Y. Hu, filed an Application for Approval of Agreement Between Trustee and Debt- or. In the Application, the Trustee seeks approval of an agreement between Trustee and Debtor whereby, in consideration for the Trustee’s forbearance of any o...
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OPINION Came on for consideration in Adversary Proceeding No. 83-1270, the complaint filed by Coors of North Mississippi, Inc., hereinafter referred to as Coors of North Mississippi, against Charles-E. Moak and Moak Bottling Co., Inc., hereinafter referred to respectively as Moak and Moak Bottling, to set aside fraudulent conveyances pursuant to 11 U.S.C. § 548(a), as well as, to avoid pr...
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MEMORANDUM OPINION This matter came before the Court on Rockport National Bank’s (RNB) Amended Motion for Change of Venue, and the Trustee’s opposition thereto. The parties submitted legal memoranda and the Court took the matter under advisement. The facts are these: RNB is a national banking corporation doing business in Massachusetts. The debtor, Nancy Carter Wheeler, filed a petition for r...
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DECISION ON MOTION OF HEIGHTS PLAZA ASSOCIATES FOR PAYMENT OF ADMINISTRATIVE CLAIM PURSUANT TO SECTION 506(c) Before the court is a motion brought by the debtor’s former landlord seeking payment of its administrative rent claim from proceeds of an auction sale of the debtor’s equipment which equipment was fully encumbered by a security interest. For the reasons below, the motion is denied...
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ORDER Heard on April 2, 1986 on Leach & Garner Company’s “Motion to Reclaim” $40,-000 from the trustee, held by him as part of the insurance proceeds recovered on a theft loss incurred by Etch-Art (the debtor) prior to the filing of the Chapter 11 petition. The trustee takes no position, other than stakeholder, in this dispute between Leach and Garner and Carmen Jewellery Mfg., Inc. Leach & Gamer...
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64 B.R. 810 (1986) In re Stephen George CLEVELAND, Debtor. UNITED STATES of America, Plaintiff, v. Stephen George CLEVELAND, Defendant. Adv. No. C86-0182-H13, Related Case: 85-05242-H13. United States Bankruptcy Court, S.D. California. September 17, 1986. Peter K. Nunez, U.S. Atty., Robert H. Plaxico, Asst. U.S. Atty., San Diego, Cal., for plaintiff. Robert S. Norwood, San Marino, Cal., for defen...
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OPINION AND ORDER THIS MATTER comes before the Court on the Plaintiff’s Motion for Issuance of a Temporary Restraining Order. The facts indicate that the Debtor owns a motel/resort operation in Estes Park, Colorado, which he purchased in the fall of 1985. In order to make the purchase the Debtor borrowed the sum of $250,000 from Mr. Michael Dean Chaussee (“Plaintiff”). That loan is payable, wit...
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MEMORANDUM OPINION INTRODUCTION On November 25, 1985, Debtors filed their joint voluntary Chapter 7 petition. On May 9, 1986, Debtors filed their Complaint against Defendant, First National Bank of Malden, Missouri (the “Bank”) to avoid and recover an alleged preferential transfer of $850.00. On June 6, 1986, the Bank filed its Answer, denying liability and claiming its entitlement to the $850.00 ...
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ORDER The Plaintiff Clarks Fork National Bank (Bank) filed a complaint seeking a determination of non-dischargeability of its debt under Section 523(a)(2)(A) of the Code. After answer, trial of the cause was held on July 30, 1986, and thereafter the parties have submitted proposed Findings of Fact and Conclusions of Law, and Briefs in support of its position. The Debtor commenced a d...
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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 the above entitled action. Although the Plaintiff has supported this Motion with his written arguments, the Defendant has not responded or otherwise opposed the Motion. The Court has reviewed the Plaintiff’s arguments as well as the entire record in this case. Base...
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OPINION The question for resolution is whether we should grant either of two opposing *840motions for summary judgment in the instant suit in which the debtors allege, inter alia, that the United States Department of Housing and Urban Development (“HUD”) wrongfully declined to accept assignment of the debtors’ mortgage. For the reasons granted herein, we will grant HUD’s motion for summary judgme...
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MEMORANDUM OF DECISION CONCERNING LAND SALE CONTRACT Statement of Facts On February 26,1982, Serendipity Farms (Serendipity) and the Debtors entered into *170 a “Real Estate Multi-Party Exchange, Purchase and Sale Agreement” (Agreement) along with a third party, Chris Bauer. The Agreement covered 464 acres of farm land in Hartley County, Texas, together with a r...
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MEMORANDUM OPINION Charles L. Hoffman, Jr., (Hoffman) filed a voluntary petition under the provisions of chapter 7. On September 13, 1985, National Bank of Commerce of Pine Bluff (NBC) filed a pleading styled, “Objection to Discharge and Complaint to Determine Dis-chargeability of Debt.” The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (J)...
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MEMORANDUM OPINION AND ORDER Rivas & Rivas, Inc. is a Chapter 11 debt- or engaged in the construction business. Augustine A. DiBiase, Jr. is the holder of an allowed claim against Rivas & Rivas in the amount of $15,000. The parties reached an agreement as to the amount of the claim following extensive discovery on debtor’s objections to DiBiase’s first proof of claim filed as unsecured in the amo...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 7 adversary proceeding is a Complaint for Turnover pursuant to 11 U.S.C. § 363, filed by George T. Hadley, Trustee of the Chapter 7 estate (Trustee). The Trustee and the Defendant, The United States of America, Internal Revenue Service (Government) have filed Cross-Motions for Summary Judgment, alleging that the...
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MEMORANDUM OPINION & ORDER 1 I Statement of Proceedings On July 24,1986, the Debtor, the Gathering Restaurant Inc., (hereinafter: “Plaintiff”) filed its Verified Complaint for a Permanent Injunction and Motion for Temporary Restraining Order versus First National Bank of Valparaiso (hereinafter: “Defendant”) praying that Defendant be restrained and enjoined from pursuing...
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MEMORANDUM The matter before the Court is Count IV of the adversary complaint commenced on March 13, 1986 by WJM, Inc. (“WJM”), Rockview, Inc. (“Rockview”), Walter M., Inc. (“WMI”) and Senior Care Associates, Inc. (“Senior Care”) (collectively the “Plaintiffs”) against the Commonwealth of Massachusetts, through its Department of Public Welfare (the “Department”). Through Count IV, WJM and...
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MEMORANDUM OPINION INTRODUCTION On January 10, 1986, Bennett Paper Corporation (“Bennett”), Debtor, filed its Petition For Injunctive Relief and Damages against Defendants Gerald McGraw (“McGraw”), Jefferson Smurfit Corporation (“Jefferson”) and Alton Packaging Corporation (“Alton”). Initially, Bennett’s Complaint consisted of three counts, the first and second of which sounded in contract and req...
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The debtors seek an order dismissing the complaints filed by the plaintiffs on the *950 ground that they were not timely filed within the period set out in Rule 4007(c) of the Federal Rules of Bankruptcy Procedure. The central issue is whether creditors who were not notified of the deadline imposed by Rule 4007(c) are barred from objecting to the discharge of the obligations of the...
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MEMORANDUM This matter comes before the Court on plaintiff’s motion to challenge, as unrepresentative, the members of the official Dai-kon Shield Claimants Committee. The motion has been fully briefed and argued and is ripe for disposition. Background Prior to the commencement of this reorganization proceeding an ad hoc committee of 38 attorneys, representing Daikon Shield c...
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*712 OPINION ASHLAND, Bankruptcy Judge. The trustee challenges the conclusion of the bankruptcy court that a right of first refusal for the purchase of real property is a covenant running with the land and is not subject to rejection as an executory contract pursuant to 11 U.S.C. § 365. FACTS Ronald and Krystyn Morrow (Morrows) were the principal shareholders of debtor Coordinated Finan...
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OPINION The debtors, who are farmers, appeal from an order confirming a creditors' Chapter 11 liquidation plan over the debtors’ objection. We modify the order and affirm. FACTS Quay and Ardis Jorgensen are Chapter 11 debtors in possession under a petition filed July 27, 1984. The debtors own and farm trees on over 14,000 acres of timberland in Western Washington. They have assets of approx...
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*506 MEMORANDUM OPINION RE: APPLICATION OF SEIDMAN & SEID-MAN, BDO, FOR ALLOWANCE OF INTERIM COMPENSATION On April 7, 1986, Seidman & Seidman, BDO, filed its first application for allowance of fees and expenses for services it rendered on behalf of the debtor in possession, covering the period from July 30,1985 through January 31, 1986. After due notice was sent to all interested...
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ORDER Plaintiffs’ Complaint to Determine Dis-chargeability of Debt was heard July 30, 1986. Commercial Union (hereinafter “CU”) seeks to bar discharge of its state court judgment under 11 U.S.C. § 523(a)(9), which excepts from discharge a judgment if liability resulted from debtor’s operation of a motor vehicle while legally intoxicated. Thus, the issues are whether debtor was legally int...
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MEMORANDUM OPINION AND ORDER On the 28th day of January, 1986, hearing was had on the Request of Trans-america Insurance Company for Allowance and Payment of Chapter 7 and Chapter 11 Administrative Expenses. Present were Robert G. Durnal, Chapter 7 trustee; William D. Wilmoth, counsel for the debtor; Robert J. Blumling and John L. Spiegel, counsel for Transamerica Insurance Company; Willi...
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MEMORANDUM RE TRUSTEE’S FEES The Chapter 11 trustee has requested an interim fee allowance of $14,876.48 based upon disbursements of $489,882.82. That amount is the maximum compensation that could be allowed under 11 U.S.C. § 326(a) *799 as amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984 (BAFJA). The maximum commission allowable to a trustee under § 326(a) before the 19...
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ORDER GRANTING INTEREST ON RECLAMATION CLAIMS This matter is presently before the court upon Debtors’ Motion for Reconsideration of the court’s order filed December 11, 1985. This order allowed interest on reclamation claims against the Debtor as priority costs of administration pursuant to 11 U.S.C. § 546(c)(2)(A). Consideration of this motion is governed by Rules 52(b), 59(e) and 60(b) ...
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MEMORANDUM DECISION Plaintiff seeks exception from discharge under 11 U.S.C. § 523(a)(2)(C) as applied under § 523(a)(2)(A) for its claim of $1,021 against the debtors. The debtors appeared at trial and denied the essential allegations. No default has been sought or granted on account of the debtors’ failure to plead. The matter was tried on September 4. The facts are undisputed. On March 21,...
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MEMORANDUM OPINION AND ORDER This Adversary Complaint comes before the Court on the Motion of the DeKalb Medical Building Partnership (DMBP) to Dismiss the Counterclaim of the Debtor. DMBP is represented by Attorney Charles G. Brown. The Debtors are represented by Attorney William E. Schirger. The Debtors in this case filed for relief under Chapter 11 of the Bankruptcy Code on February 21, 19...
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ORDER DISMISSING CHAPTER 7 PROCEEDINGS AS A “SUBSTANTIAL ABUSE” OF THAT CHAPTER WITHIN THE MEANING OF § 707(b) OF THE BANKRUPTCY CODE The debtor in these chapter 7 proceedings was recently convicted in the Circuit Court of Jackson County, Missouri, of the second degree murder of his wife, Joyce Bruno. He has filed in the bankruptcy court a petition for relief under chapter 7 of the Bankru...
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DECISION DEFERRING RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND ORDERING FURTHER DISCOVERY AND OTHER MATTERS This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this *514 court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(H), in which the plaintiff, Thomas B. Talbot, Jr., Chapter 7 Trustee, in his complaint, seeks to avoi...
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ORDER Heard on May 7, 1986 on Sullivan Clark & Associates’ motion to amend Schedule B-3(b), wherein the debtor requests: That the entry; Book of Insurance Policies in force located at 9 Plymouth Road, East Providence, Rhode Island — value $75,000.00, be amended to read; Contract rights due under agreement dated November 1, 1982 from Hague & Marso Realty, Inc.— value $2,000.00. Charles Mason,1 a c...
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MEMORANDUM OPINION AND ORDER This adversary proceeding involves a Chapter 11 debtor who borrowed funds from a lender who was not licensed to lend by the State of Vermont. Because we find that the lender is required by statute to obtain a license, the plaintiff’s cross-motion for summary judgment is granted, and the lender’s motion for summary judgment is denied. No facts are in dispu...
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OPINION The Debtor was a farmer, and on January 19, 1984, he borrowed from Citizens First National Bank of Princeton (Plaintiff) 1123,800.00 and executed a Security Agreement granting the Plaintiff a security interest in 90 acres of corn, 167 acres of soybeans, and 74 acres of wheat to be planted, grown, matured, harvested, and stored during the 1984 crop year. The security interest was v...
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MEMORANDUM-OPINION This matter comes before the Court on plaintiff’s motion for Summary Judgment on its action pursuant to 11 U.S.C. Section 523(a)(6), alleging that the debt due the plaintiff arises from a claim for willful and malicious injury to the plaintiff by the debt- or and, therefore, is nondisehargeable. The defendant-debtor, Michael Anthony Fahey, was convicted in the Superior Court of ...
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ORDER DENYING THE MOTION OF THE UNITED STATES OF AMERICA TO ALTER OR AMEND JUDGMENT OF JUNE 23, 1986 This court formerly issued its judgment on June 23, 1986, which in pertinent part held that a debtor in bankruptcy proceedings was not liable for postpetition interest on taxes due the Internal Revenue Service which will be paid out of his bankruptcy estate. The relevant portion of the court’s c...
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DECISION AND ORDER This matter came to be heard on the motion of the defendants in this adversary proceeding to disqualify the debtor’s attorneys: Mr. Rubin as general counsel, and Mr. Pinks as bankruptcy counsel. The defendants argue that the debtor’s counsel have forbidden propriety interests in the subject matter of the litigation, and forbidden business relations with their client. The defe...
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MEMORANDUM DECISION AND ORDER ON MOTION TO AVOID LIEN Debtors, Charles Howard Pelter and Jeannie Lee Pelter, have moved to avoid a non-purchase money, non-possessory security interest lien in certain agricultural equipment pursuant to 11 U.S.C. § 522(f)(2)(B) (1979) and also challenge the constitutionality of an Oklahoma Statute affecting a limit on the value of the claimed exemption. Okl...
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MEMORANDUM Dellway Villa Apartments (“Dellway”) objects to the discharge of its claim in this Chapter 13 case. I find that the documents Dellway submitted prior to the claims bar date constitute a timely proof of claim which can be amended and must be paid before the debtor receives a discharge. The following are findings of fact and conclusions of law. Bankr.R. 7052. This is a core ...
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ORDER DENYING REMAND On or about March 9, 1985, Metal-X Corporation (“Metal-X”) filed a civil suit against Alloy & Stainless, Inc. (“Alloy”) in the 334th District Court of Harris County, Texas. Metal-X filed a Chapter 11 petition on September 9, 1985 in this Court. On October 2, 1985, Metal-X filed a motion to remove the state court claim to the “Bankruptcy Court”. Marketta Developme...
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OPINION AND ORDER GRANTING MOTION TO DISMISS CHAPTER 13 PETITION This proceeding is before the Court on creditor’s motion to dismiss this Chapter 13 petition. The motion was noticed and a hearing held on September 4, 1986. At that time the Court took the matter under advisement and has now fully examined the evidence, the argument of counsel and the applicable law. Debtor filed his voluntary ...
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MEMORANDUM OPINION In this case we are confronted with cross-motions for summary judgment. 1 For the reasons set forth below we find that the Disbursing Agent is not entitled to summary judgment because the defendants have raised a material issue of fact concerning Alla-Ohio’s possible lack of an “interest” in the letters of credit that Alla-Ohio transferred to the defendants. ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 7 case is a Complaint, filed by Jary C. Nixon, (Trustee) who seeks a Turnover Order of certain funds concededly held by the United States Government, the Internal Revenue Service (IRS). The Trustee also seeks an identical Order of Turnover against Don M. Stichter (Stichter), who is counsel o...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT-AMOUNT AND LEGALITY OF INCOME TAXES AND REFUND MEMORANDUM OPINION Martin W. Colson, Plaintiff, pro se, filed this adversary proceeding with the Court on February 16, 1986. He asks the Court to inquire into his tax liabilities for the years 1981 and 1982 in order to determine the amount and legality of such taxes. He also asks ...
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MEMORANDUM AND ORDER On June 23, 1986, the Debtors filed a motion requesting that this Court declare the debt of Jonesboro State Bank be discharged in bankruptcy unless Jonesboro State Bank pay off Troy & Nichols Mortgage Companies and assume the position of first mortgagor. The record in this Chapter 7 case indicates that the Debtors’ homestead has upon it a first and second mortgage. The first ...
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MEMORANDUM AND OPINION The Trustee in this Chapter 7 bankruptcy seeks an order precluding these debtors from asserting under La.R.S. 20:1 a homestead exemption of $15,000.00 on real estate located in Shreveport, Louisiana. The Court conducted a hearing on June 24, 1986, on the objection of the Trustee and took the matter under advisement. The record indicates that on January 28, 1986...
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MEMORANDUM OPINION RE OBJECTION TO CLAIMS OF THE UNITED STATES OF AMERICA ACTING THROUGH THE COMMODITY CREDIT CORPORATION A status hearing on debtor’s objection to claim filed by the United States of America on behalf of the Commodity Credit Corporation was held on August 27, 1986, in Lincoln, Nebraska. The debtor and debtor-in-possession, Melvin Hubka, appeared pro se and Steve Russell of the ...
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MEMORANDUM OPINION AND ORDER The matter before the court is the objection by McPherson Beverages, Inc. to the chapter 7 trustee’s proposed order of distribution. At issue is whether an avoided preferential lien should be preserved under 11 U.S.C. § 551 to defeat a junior lien when the proceeds will go to pay costs of administration and priority tax claims, but nonp-riority unsecured claim...
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DECISION ON MOTION FOR PRELIMINARY INJUNCTION Plaintiff/debtor filed a complaint in this adversary proceeding in which it seeks in-junctive relief against defendant. Bankruptcy Rule 7001(7) requires an adversary proceeding where the relief sought is in-junctive. (Because we will be referring herein to several law suits, so that use of the terms “plaintiff” and “defendant” will lead to con...
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DECISION AND ORDER ON MOTION TO DISMISS Albert J. Schuholz, Jr., filed an involuntary petition pursuant to 11 U.S.C. § 303 against Donald L. Fales (hereafter “debt- or”). The petition alleges that Schuholz is the holder of a claim against debtor in the amount of $12,931.88. He alleges further that Fales has less than 12 creditors and that debtor is generally not paying his debts as they become due...
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FINDING AS TO MOTION FOR RETURN OF POST-PETITION TRANSFER I. FINDINGS OF FACTS On April 23, 1986 Donald Dominguez filed a petition under Chapter 13 of Title 11 of the United States Code. On or about April 16, 1986 the IRS sent a notice of levy on wages, salary and other income to the debtor showing deficiencies and assessment for income tax due and owing for tax periods ending 12-31-80, 12-31...
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OPINION The question for decision is whether we should grant relief from the automatic stay to a purchaser of some of the assets of the debtor, a nursing home, in order for the vendee to continue proceedings' in state court which would determine whether the sale of assets included future testamentary gifts. For the reasons set forth below, we conclude that relief from the stay should not be grant...
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MEMORANDUM OPINION Presently before the Court is a Motion For Relief From Stay by Reinhardt’s Agency (“Reinhardt’s), requesting that the Court grant said Motion authorizing setoff between Reinhardt’s and the Debtor. The Trustee objected to the Motion, arguing that setoff was inappropriate, and that Reinhardt’s should be directed to turn over the property in its control to the Trustee...
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MEMORANDUM DECISION AND ORDER The case sub judice is rara avis. There remain surplus funds after liquidation of the debtor’s assets and after all creditors of the debtor, a joint venture, were paid in full. After distribution, there remain the sum of $314,863.56. Pending are two adversary proceedings involving those entities asserting an interest in the surplus funds. The debtor, Skyline Condomini...
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MEMORANDUM OPINION AND ORDER On January 16, 1986, Sharon C. Graham and Cameron E. Graham, Jr., jointly, and doing business as Graham Catering Company and Graham Catering, (“debtors”), filed their voluntary petition for relief under Chapter 7 of the Code. The debtors elected to take Texas statutory exemptions under Chapter 42 of the Texas Property Code Annotated. On April 1, 1986, Petro Bank, ...
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OPINION AND ORDER FOR SUMMARY JUDGMENT This case is before the Court on a motion for summary judgment by the trustee. Plaintiff is the trustee in bankruptcy of Peter Heinig (“debtor”). Trustee alleges that by virtue of his statutory “strong-arm” powers (11 U.S.C. § 544(a)(3)) he is the owner of an undivided 20% interest in residential real estate (“subject property”) of which the deb...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a contested discharge proceeding, and the matter under consideration is a nondischargeability vel non of an admitted debt owed by Kenneth Edward Norton, a Debtor in a Chapter 7 case, to Judith Fern Norton, his former wife, who instituted this adversary proceeding. The debt under consideration is based on a final judgment ...
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MEMORANDUM OPINION AND ORDER DENYING MORTGAGEE’S MOTION TO MODIFY AUTOMATIC STAY This cause comes upon the motion of BANKERS LIFE COMPANY (“Mortgagee”) to modify the automatic stay. This Court heretofore ordered the stay to remain in effect until the final ruling thereon. For the reasons set forth below, the motion is now denied. PENDING MOTION On October 22, 1985, after Debtors...
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ENTRY ON MOTION OF CHEMICAL FINANCIAL SERVICES CORPORATION TO CLARIFY ENTRY 1. Factual Statement On November 20, 1984, Debtor Mary W. Green (“Debtor”) filed her bankruptcy petition under Chapter 7 of Title 11 of the United States Code. In pertinent part, Debtor’s Statement of Financial Affairs reveals the following encumbrances. 1. 1966 perfected first mortgage on realty loc...
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*460MEMORANDUM DECISION ON MOTION WITH RESPECT TO TRUSTEE’S COMMISSIONS In a striking display of hubris, this trustee seeks to add new meaning to the concept of maximum statutory commissions allowable under Section 48(c) of the former Bankruptcy Act. Lawrence Sarf, who operates PMS, a collection agency for creditors engaged in the restaurant and food business, was nominated as the trustee in bankr...
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*771 MEMORANDUM OPINION Before the Court are cross-Motions For Summary Judgment in an action by the Debtor to recover an interest payment of $551,250.00, which it claims was a preferential transfer pursuant to § 547(b) of the Bankruptcy Code. The Defendant alleges, inter alia, that as an agent for a disclosed principal, it is not the appropriate party in this suit, and that no preference oc...
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*808 SUA SPONTE ORDER DISMISSING FOR WANT OF JURISDICTION On August 29, 1986, this case was filed in the Austin Division of this Court. Ordinarily, a court should not engage in the practice of sua sponte dismissal absent notice and an adequate opportunity to be heard. See, In re Little Creek Development Co., 779 F.2d 1068 (5th Cir.1986). However, where it is clear as a matter of law that ...
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*809 MEMORANDUM OPINION In this proceeding, the Debtor in Possession seeks to utilize post-petition rentals paid by tenants of a shopping center. The Debtor says that the rents are said to be cash collateral. The holder of a note secured by the first lien under a deed of trust, General Electric Credit Corporation (GECC) objects, claiming that it “owns” the rents. The jurisdi...
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MEMORANDUM OPINION Now before the Court is the Trustee’s amended objection to the debtors’ claim as exempt the proceeds of the cash value of their interests in certain Metropolitan life insurance policies. The issue of whether such proceeds should be declared exempt has been presented upon stipulations and briefs. It is the trustee’s position that the cash value proceeds of life insu...
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ORDER In this adversary proceeding, the Plaintiff Debtors seek a determination of the debt, if any, owed to the Defendant Malm-strom Federal Credit Union (Malmstrom). Hearing on said complaint and answer was held July 15, 1986, and the parties have now filed proposed Findings of Fact, Conclusions of Law and briefs in support of their respective position. The Debtors filed their Chapt...
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FINDINGS OF FACT, MEMORANDUM-DECISION AND ORDER OF DISMISSAL Debtor Salvatore Tuzzolino (“Debtor”) filed his petition for relief under Chapter 7 of Title 11 of the United States Code on January 15, 1986. Pursuant to Federal Rules of Bankruptcy Procedure (“FRBP”) 2002, 4004(a), and 4007(c), the Bankruptcy Clerk’s office, by notice dated January 17, 1986, informed creditors of the April 21, ...
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MEMORANDUM OPINION In this adversary proceeding Great American Insurance Company objects to the chapter 7 debtor’s discharge pursuant to 11 U.S.C. § 727(a)(5). A trial was held in Raleigh, North Carolina, on August 29, 1986. JURISDICTION This bankruptcy court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157, and ...
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ORDER OF RESOLUTION MEMORANDUM OPINION Which rises higher, the Bankruptcy Code or the national security? Not really, but we decide it anyway. Curtis Wayne Applegate is a twelve year veteran of the U.S. Army with the rank of Sergeant and a ‘top-secret’ security clearance for his instruction of maintenance and repair of the Blackhawk helicopters. He is currently station...
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MEMORANDUM OF OPINION RE MOTION TO REJECT EXECUTORY CONTRACT On or about April 13, 1982, Moses Aslan and Sycamore Investment Company (“Sycamore”) entered into a real estate purchase contract whereby Sycamore agreed to purchase the “Broadway Spring Arcade Buildings” (the “Arcade”). This agreement was amended a few days later to, among other things, increase the purchase price to $4,500,000...
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ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE RENT THE MATTER under consideration in this Chapter 7 case is an Application for Payment of Administrative Rent filed by John C. Fruhmorgen, who seeks payment *436of administrative rent for three separate properties rented to the Debtor, one in Clearwater, Fla., one in New Port Richey, Fla., and one in Lakeland, Fla. The Court considered the recor...
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ORDER ON MOTION FOR SUMMARY JUDGMENT The matter under consideration is the dischargeability vel non of an admitted liability for Federal taxes of Douglas E. Clark and Nancy A. Clark, the Debtors involved in the above-captioned Chapter 7 case. The taxes involved in this controversy are asserted by the United States Government Internal Revenue Service (IRS) against both Debtors and are base...
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ORDER Before the Court is a motion filed by Robert L. Coley, standing Chapter 13 trustee. The motion seeks direction regarding the disposition of undistributed payments held by the Chapter 13 trustee upon conversion from a Chapter 13 to a Chapter 7 case. No response to the motion has been filed by the debtor or the Chapter 7 trustee. *131 This debtor’s Chapter 13 case was fi...
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*196 MEMORANDUM OF DECISION This matter comes before the Court on the objection of the Plains State Bank to the debtor John David Massoni’s claimed exemptions and motion to avoid lien. The debtor seeks to exempt certain farm equipment as tools of trade and to void the lien thereon. The Bank contends debtor is not a farmer but a real estate salesman or lessor and so cannot avoid the lien. The ...
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MEMORANDUM DENYING DISCHARGE I find for the debtor on Counts 6 and 7, as they deal with an alleged misrepresentation of financial condition of the debtor; namely, the ownership of the Derby Street property. 11 U.S.C. § 523(a)(2) requires that when dealing with a fraud relating to financial condition, it must be based on a statement in writing. There is no such false writing. This requirem...
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MEMORANDUM OPINION INTRODUCTION On April 8, 1986, Debtors filed their voluntary Chapter 7 petition. On June 18, 1986, Anderson’s Home Furnishings (“Anderson’s”) filed its Motion To Modify Stay wherein it requested the Court to modify the stay by permitting it to foreclose its security interest on certain of Kevin Faughn’s personal property. On July 9, 1986, Debtors conceded the validity of An...
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MEMORANDUM OPINION INTRODUCTION The subject matter of this proceeding is the Debtor barge line’s Complaint against its former fleeter for turnover of rigging and other equipment which had been used in fleeting Debtor’s barges. For the reasons set forth below, the Court will this date enter an order granting judgment for Debtor. PROCEDURAL HISTORY On January 13, 1986, Wisconsin Barge Line,...
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ORDER DENYING MOTION TO DISMISS On May 28, 1986, the Debtor-in-possession in this Chapter 11 proceeding commenced an adversary action against the Montana Department of Revenue and Flathead County, Montana, seeking a determination of the claim due such taxing authorities for the years 1980 to 1985 inclusive. Flathead County filed its answer to the complaint and asserts an affirmative defen...
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MEMORANDUM DECISION AND ORDER Again this court is confronted with the issue of the proper interpretation of Bankruptcy Code (11 U.S.C.) § 365(d)(4), a provision of the 1984 amendments which often proves problematical for. debtors-in-possession and trustees. That section provides: Notwithstanding paragraphs (1) and (2), in a case under any chapter of this title, if the trustee does not assume ...
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MEMORANDUM DECISION AND ORDER IMPOSING SANCTIONS ON DEBTOR’S ATTORNEY Plaintiff moved on January 29, 1986, for imposition of sanctions against the debtor and debtor’s counsel for additional costs plaintiff incurred by reason of their failure to adhere to the Stipulation filed October 29, 1985. A review of the docketed events leading to this motion for sanctions follows: The Stipulation provided fo...
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DECISION AND ORDER ON MOTION OF DAVIS FURNITURE CO. The plan in this Chapter 13 case was confirmed November 27, 1984. The plan provides for a monthly payment of $35.00 to movant on an allowed secured claim of $1,900.00. Movant’s collateral consists of a bedroom set and refrigerator. Debtors are not in default on their payments to the Chapter 13 trustee. Subsequent to confirmation, movant’s collate...
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OPINION The question for decision is whether the debtor’s withdrawal liability under the Em *427 ployee Retirement Income Security Act of 1974 (“ERISA”) 1 and the Multiemployer Pension Plan Amendments Act of 1980 (“MPPAA”) 2 is an administrative claim under 11 U.S.C. §§ 503(b)(1) or 507(a)(1) of the Bankruptcy Code (“the Code”). For the reason expressed ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration is the dischargeability vel non of two debts admittedly owed by Walter V. Coverdale (Debt- or). One is an obligation to pay monthly $370.00 plus any late charges on a second mortgage on the former marital home to Aetna Finance; the other debt is an unspecified amount payable to Sears Roebuck. The ob...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On February 13, 1985, Frederick W. Goux (“Debtor”) filed his petition for relief under Chapter 13 of Title 11 of the United States Code (“Code”). By Order of the Court dated May 21, 1985, the case was converted to one under Chapter 7. On July 9, 1985, Ronald Gualtieri (“Gual-tieri”) filed his complaint objecting to the dischargea...
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DECISION GRANTING MOTION PURSUANT TO 11 U.S.C. § 1124 FOR DETERMINATION AND ORDER This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(B) and (O) in which the debtor-in-possession, movant, Arlington Village Partners, Ltd. (hereinafter Arlington), requests an order of the court determining ...
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OPINION The heart of the controversy at issue is whether we should grant a motion to strike certain objections to a proposed stipulation which were filed after the entry of our order approving the stipulation and the order of the district court vacating our order of approval and remanding the issue to us for further findings of fact. Since the order and accompanying opinion of the district court d...
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OPINION I.FINDINGS OF FACT 1. The instant case was commenced in this Court by the filing of an involuntary Chapter 7 Bankruptcy petition against JOSEPH SCHILIRO (hereinafter “the Debt- or”) on October 28, 1985, by a single creditor, AmQUIP CORPORATION (hereinafter “the Petitioner”). 2. On November 25, 1985, the Debtor filed an Answer contesting the Petition. The defenses raised ...
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MEMORANDUM OPINION The major issue confronting the Court in this Chapter 7 case is whether a debtor, who has claimed a Texas homestead exemption under 11 U.S.C. § 522, may avoid a lien asserted by the Federal Deposit Insurance Corporation on that homestead, on the grounds that the lien is invalid under the Texas homestead laws. FACTS The Howards’ case is before the Court on the ...
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MEMORANDUM OPINION On January 13, 1986, the trustee in the above-captioned estates filed her objection to the secured status and amount of the claim of Northwest Tire Service, Inc. (“Northwest”) to certain insurance proceeds derived from a fire insurance policy from State Farm Fire Insurance owned by debtor Thomas H. McDougal. The trustee contends that Northwest has an unsecured claim in ...
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DECISION ON MOTION TO COMPEL TRUSTEE TO DISTRIBUTE PROCEEDS OF SALE OF METAIRIE RESIDENCE The trustee in bankruptcy and counsel for the erstwhile unsecured creditors’ committee in this confirmed liquidating Chapter 11 case seek to subject Hibernia National Bank In New Orleans (“Hibernia”), a judgment creditor holding a perfected secured claim against certain real property in this estate, with a p...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of Edward J. Dembek and Janice M. Dembek (Debtors) for an order upon the president of the Sheffield-Sheffield Lake Board of Education (Sheffield District) to appear and show cause why he and said Board of Education should not be held in contempt for their refusal to provide the Debtors with a transcript of their min...
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ORDER This matter is brought before the court on the Complaint to Determine discharge-ability of Debt filed by J. Richard Coffing and Gladys M. Coffing (Plaintiffs) on February 11, 1982. Trial was held on March 12, 1984. On October 10, 1984, the matter was taken under advisement. BACKGROUND In September of 1979, Jeffrey Burdick (Defendant) desired to expand his dairy cattle herd...
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On January 13, 1983, the First State Bank of Manchester, Iowa (“the bank”) opened a $240,000.00 credit line for the debtors who in turn granted the bank a security interest in, inter alia, all existing and after acquired crops, “supplies used or produced in farming operations,” contract rights and accounts, and the proceeds from the contract rights and accounts. The bank filed a financing state...
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AMENDED MEMORANDUM OPINION RE: IRS’ MOTION FOR RECONSIDERATION On June 16, 1986, 62 B.R. 399, the Court entered its Memorandum Opinion which held that the IRS was not entitled to interest on its pre-petition lien claim in this Chapter 11 case. The concluding sentence directed that “upon submission, an order consistent with this opinion will be entered.” The successful debtor has to this date st...
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DECISION REQUIRING SPECIFIC NOTICE This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B) and (0). The matter of listed unsecured creditors not receiving specific notice that their claims were scheduled as either disputed, contingent, or unliquidated, thereby requiring them to timely...
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*419OPINION The primary question posed in the case at bar is whether we should deny a motion of an alleged creditor to examine one of the debtor’s principals under Bankruptcy Rule 2004. For the reasons stated below, we will grant the motion. The facts of this case are as follows:1 One Jacques Zinman (“Zinman”) is a principal of Zinman Group, Inc., J. Zinman, Inc., and Zinman Insurance of Florida, ...
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OPINION The primary query presented in the instant case is whether we may grant relief on a motion to avoid a lien or mortgage under 11 U.S.C. § 506 of the Bankruptcy Code (“the Code”) after confirmation of a debtor’s chapter 13 plan. On the basis of the reasons outlined below, we conclude that we may not. The facts of this case are as follows: 1 The debtor filed a petition for the adjust...
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This is an action to determine the dis-chargeability of a debt under Sections 523(a)(2)(A) and 523(a)(6), filed by the plaintiff, United Oil Marketers, Inc. against the debtor, Ray Blake Scalf. I Plaintiff is a corporation engaged in the business of selling gasoline and petroleum products at wholesale to various retailers for the purpose of resale. On November 13, 1984, the plaintiff and the defen...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM ’ OPINION THIS IS a Chapter 7 liquidation case and the matter under consideration is an attack by Lawrence Kleinfeld (Trustee) on three real estate mortgages executed by William Davenport (Debtor) which granted to the University State Bank (Bank) mortgages on the residence of the Debtor and two condominium apartments, one located in Redington Bea...
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ORDER ON AMENDED MOTION TO VALUE COLLATERAL OF DOE SPUN, INC. AND TO MODIFY ORDER AFFORDING ADEQUATE PROTECTION TO DOE SPUN, INC., AND ORDER ON EMERGENCY MOTION FOR RELIEF FROM STAY FOR FAILURE TO COMPLY WITH COURT ORDERS THE MATTERS under consideration in this Chapter 11 case are an Amended Motion to Value Collateral of Doe Spun, Inc., and to Modify Order Affording Adequate Protection to Doe S...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 11 adversary proceeding is a Complaint to Determine Dischargeability of Debt pursuant to § 523(a)(2)(A) and/or (B) of the Bankruptcy Code, filed by Theodore Patt (Patt) against Michael James Russell (Debtor), the Debtor in the above-styled case. Patt asserts that the Debtor induced him to lo...
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ORDER GRANTING HICKORY CAPITAL CO., INC., RELIEF FROM AUTOMATIC STAY There is before the Court motions for relief from automatic stay of 11 U.S.C. *410 § 362 filed by Hickory Capital Co., Inc. (hereafter Hickory), in the three cases captioned above. Hickory seeks relief to enforce its rights under a stock pledge agreement, i.e., to vote the stock and elect representatives to the Board of Dire...
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ORDER ON MOTION TO STRIKE DEBTOR’S MOTION TO AVOID NON-PURCHASE MONEY LIEN The matter under consideration in this Chapter 7 proceeding is a Motion to Strike Debtor’s Motion to Avoid Non-Purchase Money Lien. The Motion is filed by ITT Financial Services, Inc., (ITT), a creditor in the above-captioned case, whose lien is sought to be avoided by the Debtor pursuant to § 522(f)(2). The facts releva...
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MEMORANDUM OPINION AND ORDER On May 6, 1985, Castaways/Hidden Harbor Partners, Ltd., Debtor, filed its Chapter 11 bankruptcy case in the United States Bankruptcy Court for the Central District of California. On August 26, 1985, that court ordered the transfer of this Chapter 11 case to the United States Bankruptcy Court for the Middle District of Georgia. On October 28, 1985, Charles N. McGlamry ...
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MEMORANDUM-OPINION This matter comes before the court for a determination of the dischargeability of the debt due the creditor, George Barnes (Barnes), pursuant to 11 U.S.C. § 523(a)(2)(A), by the debtor, Carl A. Pallo (Pallo). The relationship between the parties pri- or to the filing of this petition for Chapter 7 relief on August 22, 1984, may be summarized as follows. Pallo, as i...
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Reasons for Judgment This matter comes before the court on an interpleader complaint brought by Temple Drilling Company [Temple]. Factual Background Temple and the debtor herein, L & S Offshore Catering [L & S] had a longstanding contractual relationship whereby L & S provided catering services to Temple’s offshore oil rigs. In January of 1985, L & S filed its petition in...
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MEMORANDUM OPINION By (four counts of) a five count Amended Complaint, the Plaintiff, Chapter 7 Trustee, seeks to avoid, as to Defendant Wilma Wallace (Wilma), (what is asserted to be) transfers to her of marital property, by the provisions of the decree dissolving her marriage to the Debtor, Defendant Franklin Grant Wallace (Wallace, or, Debtor), as transfers avoidable under the fraudule...
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OPINION There are presently two matters before the Court. The first matter is a motion, filed by Elsinore Shore Associates, f/k/a Playboy Elsinore Associates, a New Jersey partnership, d/b/a The Atlantis Casino Hotel, (ESA), the debtor-in-possession herein. ESA is seeking an order authorizing ESA to pay prepetition license fees and taxes due to the New Jersey Casino Control Commission (Co...
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OPINION The debtor has filed Applications for Withdrawal from the Mechanical Contractors Association of Eastern Pennsylvania, Inc. (MCA) and Rejection of Collective Bargaining Agreements with both Local Union 420 of the United Association of Journeymen and Apprentices of the Plumbing and *391 Pipe-Fitting Industries of the United States and Canada (Local 420) and Plumbers Union Local 690 (Loc...
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The plaintiff, Interstate Securities Corporation (Interstate), brought this adversary proceeding against Frank T. Costantino (debtor) seeking a determination that its claim (the debt) against the debtor in the sum of $25,411.04 is nondischargeable pursuant to 11 U.S.C. § 523 of the Bankruptcy Code (11 U.S.C. § 101 1 et seq.) Interstate alleges (1) that the debt is nondischargeable pursuant ...
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MEMORANDUM AND ORDER Before the court is the objection of James Randy Baxley (debtor) to Farmers Home Administration’s (FmHA) election, pursuant to 11 U.S.C. § 1111(b)(2) 1 , to have a secured claim to the extent it is allowed. Debtor contends that, because FmHA’s interest is “of inconsequential value”, FmHA is expressly precluded, by § llll(b)(l)(B)(i), from electing to have i...
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The debtors seek authority from this court to sell four tracts of real property on which the defendants hold mortgages. Although there are no objections to the sale, there is a controversy as to how the mortgage of LSB should be satisfied. The manner in which LSB’s mortgage is satisfied will directly affect how much the second mortgagees recover on their respective mortgages. The defendant Edisto ...
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MEMORANDUM The issue in these consolidated motions to dismiss is whether the post-confirmation debtor is the proper party to recover preferential transfers and fraudulent conveyances. I hold that the debtor can maintain these actions. The defendants’ related assertions of lack of subject matter jurisdiction also fail. This memorandum constitutes findings of fact and conclusions of la...
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OPINION Appellant, a secured creditor holding a deed of trust with an assignment of rents clause, had stipulated that the market value of the property exceeded its debt and gave the debtor a period of time within which to sell the property. The stipulation also reserved appellant’s security interest in the rents. The debtor did not sell the property within the stipulated time. Appellant t...
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MEMORANDUM AND ORDER ON CHAPTER 13 TRUSTEE’S OBJECTION TO PROOF OF CLAIM FILED BY SECURED CREDITOR The Chapter 13 trustee objects to a pre-confirmation proof of claim filed by a secured creditor, People’s Savings Bank (“the Bank”), contending that the claim was not timely filed. The trustee further contends that the Bank should be treated in accordance with the debtor’s Chapter ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT AND ON MOTION FOR JUDGMENT ON THE PLEADINGS THIS IS a Chapter 7 case and the matter under consideration are Motions for Summary Judgment, filed in the above-captioned adversary proceeding by Diane Jensen (Trustee) and by Charlie B. Green (Green), the Defendant named in the Complaint filed by the Trustee. It is the contention both of the Trustee and Green that ...
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DECISION AND ORDER DENYING MOTION TO EXTEND TIME TO FILE COMPLAINT OBJECTING TO DISCHARGE AND DETERMINING DISCHARGEABILITY OF DEBT Before the Court in this Chapter 7 case is a motion, dated June 19, 1986, of Harvey Pollock (hereinafter “Movant” or “Creditor”), seeking an order extending his time to file a complaint objecting to the discharge of the Debtor under 11 U.S.C. § 727 and determi...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Determine Dis-chargeability in the above entitled adversary action. The Court has heard both the evidence and arguments presented by each of the parties in this case. The parties have also been afforded the opportunity to file any post-trial arguments they wished the Court to consider. The Court h...
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64 B.R. 380 (1986) In re Josephine M. JONES, Debtor. Josephine JONES, Plaintiff, v. MID-PENN CONSUMER DISCOUNT COMPANY, Defendant. Bankruptcy No. 85-00061G, Adv. No. 86-0289G. United States Bankruptcy Court, E.D. Pennsylvania. August 28, 1986. Karen J. Vaughn, Community Legal Services, Inc., Philadelphia, Pa., for debtor/plaintiff, Josephine Jones. Arthur J. Matusow, Edward Seave, Philadelphia, P...
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OPINION The issue presented in the case under adjudication is whether we should grant the trustee’s request for an injunction barring a creditor from continuing with a state court suit, on the allegation that we previously approved a settlement of the dispute *996at issue. For the reasons outlined below, we conclude that the injunction should issue. The facts of this case are as follows:1 As coll...
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ORDER ON OBJECTION TO CLAIM THE MATTER under consideration in this Chapter 11 case is an Objection by the Debtor, Sunnybrook Adult Mobile Home Park, Inc. (Debtor) to the Claim of Florida Federal Savings and Loan Association (Florida Federal). The Debtor contests Florida Federal’s claim, asserting that the Debtor is entitled to a setoff for damages it suffered when Florida Federal allegedly refused...
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ORDER ON MOTION TO ASSUME EX-ECUTORY CONTRACT WITH HILLSBOROUGH COUNTY SCHOOL BOARD' THIS IS a Chapter 11 case and the matter under consideration is a Motion to Assume an Executory Contract. The Motion is filed by C.M. Systems, Inc. (Debtor). The other party to the contract sought to be assumed is the Hillsborough County School Board (School Board). The evidence presented in support of and in o...
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ORDER This adversary proceeding is before the Court on a motion by defendant M & M *378 Electric Supply, Inc. (“M&M”) to reconsider this Court’s Order filed July 3, 1986. Said Order denied cross-motions for summary judgment filed by M&M and the plaintiff, The Citizens and Southern National Bank (“C&S”), because of a finding that a genuine issue of material fact remained to be...
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OPINION This matter is before the Court on Heller Financial, Inc.’s (hereinafter referred to as Heller) Motion for Additional Relief from the Automatic Stay to Compromise and Settle Accounts and for Allowance of Secured Claim. In this Motion, Heller asks the Court to determine whether it has a perfected, first and senior security interest in all accounts receivable of the Debtor, Seco, Inc. Helle...
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MEMORANDUM OPINION AND ORDER HISTORY Robert A. Bowling and Gladys M. Bowling filed their joint petition under Chapter 11 in 1984. In 1985 a plan of reorganization was proposed and a hearing seems to have been held on the matter as to confirmation. However, the record is silent as to what occurred. In any event, no confirmation order was ever entered by the Honorable Joel Pelofsky and...
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The Manhattan Life Insurance Company which holds a mortgage on the debtors’ home, has moved pursuant to 11 U.S.C. § 362(d)(1) for an order vacating the automatic stay for cause, or in the alternative, dismissing the petition in accordance with 11 U.S.C. § 1307(c) because the debtors *359 have defaulted with respect to the terms of their confirmed Chapter 13 plan. FACTS 1. The debtors, Edwar...
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MEMORANDUM OPINION and ORDER OF COURT Presently before this Court is a Complaint For Determination Of Property Of The Estate; specifically, whether an interest in a Pennsylvania liquor license falls within the parameters of Section 541, of the Bankruptcy Code. Based upon the pleadings submitted to this Court, and the subsequent hearing thereon, we find that the liquor license in question is not...
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MEMORANDUM OPINION AND ORDER This case comes before the Court on the Complaint of Blackhawk B.M.X., Inc., (Blackhawk) to Determine the Discharge-ability of a Debt. Blackhawk is represented by Attorney Duke C. Harris. The Debt- or is represented by Attorney James M. Hess. The following Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rul...
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AMENDED ORDER DENYING SUPPLEMENTAL APPLICATIONS FOR ATTORNEY’S FEES OF DENNIS J.C. OWENS, ESQUIRE, AND JOHN H. TRADER, ESQUIRE, FILED ON MAY 14, 1986, AND HEARD ON JUNE 9, 1986 Now before the court for resolution, after the completion of a full and fair hearing on the subject on June 9, 1986, in Kansas City, Missouri, is the application of Dennis J.C. Owens, Esquire and John H. Trader, appointe...
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MEMORANDUM OPINION INTRODUCTION On January 13, 1986, CLC of America, Inc. (“CLC”) filed its voluntary Chapter 11 petition in this Court. Prior to bankruptcy CLC had been sued in Arizona state court by Lakeshore Equipment Distributors, Inc. (“Lakeshore”). On May 15, 1986, Lake-shore moved the Court to modify the stay to permit it to continue prosecution of its state court action against CLC. O...
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MEMORANDUM DECISION ON APPLICATIONS FOR ALLOWANCE The Chapter 7 trustee and her attorneys have filed a final report and have applied for compensation for their services which were performed before the debtor converted this case from Chapter 7 to Chapter 13 of the Bankruptcy Code. On November 13, 1984, the debtor filed a petition in bankruptcy pursuant to Chapter 7 of the Bankruptcy Code. Miri...
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MEMORANDUM OPINION Before this Court are three Adversary Proceedings relating to two bankruptcy cases, which were consolidated for the purposes of trial and decision. These actions allege fraudulent conveyances and/or preferential transfers by the Debtor corporation, Factory Tire Distributors, Inc, (“Factory Tire”) and objections to discharge of the individual Debtor, Robert F. Macartie, ...
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MEMORANDUM OF DECISION I. Prior to filing a chapter 7 petition on May 20, 1980, George T. LaBonne, Jr., the debtor, had brought suit in the United States District Court for the District of Connecticut against Insurance Management Corporation (IMC). In his action the debtor alleged that IMC had guaranteed the performance by Jones-Mulvihill Company (JMC) of its obligations as an employer under an em...
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Memorandum and Order This cause is before the Court on the motion of Paul Brinkmann for summary *803 judgment on his adversary complaint against the debtor, White Farm Equipment Company (“WFE”) and Borg-Warner Acceptance Corporation (“BWAC”), WFE’s principal creditor. Also before the Court is WFE’s motion for summary judgment. Brinkmann is a farm implement dealer who...
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*265 ORDER DISMISSING CHAPTER 7 PROCEEDINGS AS A “SUBSTANTIAL ABUSE” OF CHAPTER 7 WITHIN THE MEANING OF SECTION 707(b) OF THE BANKRUPTCY CODE UNLESS THEY ARE CONVERTED TO CHAPTER 13 PROCEEDINGS WITHIN TEN DAYS OF THE DATE OF FILING OF THIS ORDER In the schedules initially filed by the debtor with the court on December 11, 1985, the debtor reported monthly income of $1104.00 and monthly expens...
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Order Denying Confirmation of Chapter 13 Plan Barbara Schilling, debtor’s former wife, objected to confirmation of the Plan filed on June 14, 1986. Barbara has a claim for over $40,000 which is secured solely by debtor’s principal residence. This debt matured by its own terms prior to the filing of the bankruptcy petition. Debtor’s plan provides for payment of $140.00 per month to the trustee...
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MEMORANDUM DECISION The parties have stipulated that this adversary proceeding to determine nondis-chargeability of a debt, under 11 U.S.C. subsection 523(a)(5), can be decided on the pleadings and the submitted briefs. The Court finds that although the divorce court was disturbed by Dr. Mishler’s conduct in the divorce proceedings, the court principally relied upon the present earning capacity of...
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MEMORANDUM-DECISION AND ORDER The Trustee herein has moved to expunge a claim of Balboa Insurance Company (“Balboa”), on the ground that Balboa filed its formal Proof of Claim after the deadline established for filing the same. The facts are generally not in dispute, and the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(B) and § 1334, as well as 11 U.S.C. § 501 (“Code”). H...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The above adversary proceedings, involving as they do common questions of law and fact, were consolidated for trial pursuant to Federal Rule of Bankruptcy Procedure 7042 (“FRBP”), Federal Rule of Civil Procedure 42 (“FRCP”). In each, the plaintiff objects to the dischargeability of a debt due him on the grounds the same was inc...
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*109ORDER DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS This matter is before the court upon Plaintiffs motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff, the Chapter 13 Trustee, filed a complaint against the defendant, Second National Bank, alleging that the defendant made a loan to the debtor, Timothy J. Becker, on November 15, 1985, but did not record its...
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MEMORANDUM OPINION Before this Court is the Debt- or/Plaintiff’s Complaint to Determine the Dischargeability of her student loan obligation. She requests this Court determine that said repayment would cause an undue hardship, and that this debt should be discharged under Section 523(a)(8)(B) of the Bankruptcy Code. The Defendant, Pennsylvania Higher Education Assistance Agency (“PHEAA”), argu...
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MEMORANDUM OPINION Presently before the Court is the Debt- or/Plaintiffs Complaint to Determine the Dischargeability of his student loan under § 523(a)(8) of the Bankruptcy Code. Specifically, the Debtor alleges that the repayment of this loan will cause the Debtor to suffer an undue hardship, and that it therefore should be found dischargeable. The Defendants, Pennsylvania Higher Education A...
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64 B.R. 329 (1986) In re Robert M. GROVES, Debtor. Robert H. WALDSCHMIDT, Trustee, Plaintiff, v. ASSOCIATES COMMERCIAL CORP., Kenworth of Tennessee, Inc. and Jesse G. Fuqua, Defendants. Bankruptcy No. 385-03471, Adv. No. 386-0025. United States Bankruptcy Court, M.D. Tennessee. August 25, 1986. Robert H. Waldschmidt, Cosner & Waldschmidt, Nashville, Tenn., for trustee. L. Wearen Hughes, J. Ma...
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This is an action by the purchaser of the debtor’s assets against the debtor, its former corporate president, and the trustee in bankruptcy for shortage of “inventory and equipment” and to recover accounts receivable collected subsequent to the closing of the sale. I On March 14, 1984, Baum’s Florist, Inc. filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. Thereafter...
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MEMORANDUM This matter comes before the Court on motion of Rebecca Grady (“Grady”) for a declaration by the Court that her claim against A.H. Robins Company, Incorporated (the “Debtor,” the “Company,” “Robins”), is a post-petition claim which is to he paid as an administrative expense of this proceeding. Grady filed suit against Robins in the United States District Court for the Northern ...
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ORDER ON OBJECTION TO CLAIM THE MATTER under consideration in this Chapter 11 case is Forest Enterprises, Inc.’s (Debtor) Objection to Claim filed by Rozier Machinery Company (Rozier). The claim of Rozier is an alleged deficiency claim which resulted from the sale of the Rozier’s collateral. It is the Debtor’s contention that the sale of the collateral was not held in a commercially reaso...
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STATEMENT OF THE CASE On October 31, 1984, Dennis R. Dove, Defendant, filed his voluntary petition under Chapter 7 of the United States Bankruptcy Code. On January 30, 1985, First National Bank of Commerce, Plaintiff, filed a complaint objecting to Defendant’s discharge in bankruptcy and also contending that certain debts of Defendant are nondis-chargeable. The complaint came on for trial...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of Filmar, Inc. (“Filmar”), plaintiff in this adversary proceeding, for summary judgment on its complaint against the debtors, Donn D. White and Rochelle P. White, a/k/a Rochelle Portee-Billups, f/d/b/a Salute Cocktail Lounge (“debtors”), wherein Filmar objects to the debtors’ discharge pursuant to 11 U.S.C. §§ 727(a)(2)(A) ...
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The matter presently before the Court is an Application for the nunc pro tunc Ap- *298 pointraent of the Attorneys for the Debtor-in-Possession (debtor) and for payment of compensation to the attorneys for the debt- or. The facts leading up to this matter are as follows. On August 10,-1982, the debtor, Frank Joseph Mason, filed a voluntary petition under Chapter 11 of the Bank...
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DECISION ON COMPLAINT SEEKING ORDER TO RECOVER PROPERTY J. Reiley McDonald, the trustee in this confirmed Chapter 11 liquidation case, seeks to recover possession of various items of farm equipment that were stored by the debtor for safekeeping in the possession of the defendant, Wilbur Manning, at his neighboring farm. The defendant, in turn, seeks to recover as an administrative expense the cos...
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MEMORANDUM DECISION AND ORDER GRANTING MOTIONS TO INTERVENE AND DENYING MOTIONS TO DISMISS INVOLUNTARY PETITION AND TO WITHDRAW AS PETITIONING CREDITOR Despite seven days of trial, a significant change in the applicable law, an application *954 by one of the petitioning creditors for leave to withdraw, two motions for intervention, a motion for dismissal or abstention and res...
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MEMORANDUM OP OPINION AND ORDER These several actions were consolidated and came on for a bifurcated trial proceeding solely on the issue to determine whether the Debtor, Ace Finance Company (Ace) was insolvent at the times certain alleged preferential transfers were made preceding the filing of its petition under Chapter 11. The Plaintiff in each of these matters is the duly appointed Cr...
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OPINION The question for decision is whether we should grant the relief requested in the trustee’s complaint and enter judgment against a law firm which received funds of the estate without approval of the bankruptcy court. For the reason outlined below, we will enter judgment in favor of the trustee and against the law firm. The facts of this case are as follows: 1 An inv...
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MEMORANDUM AND ORDER In these jointly administered Chapter 11 cases the above-named debtors seek, in pertinent part here, to allocate payments under a joint Chapter 11 reorganization plan to the Internal Revenue Service (“I.R.S.”) so that the “trust fund” portion of the I.R.S.’ claim will be credited first until paid in full. I.R.S. objects to such treatment. BACKGROUND Although...
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This matter came before the Court on the defendants’ motion to dismiss the trustee’s complaint to avoid an alleged preferential transfer from the debtor, Afeo Development Corporation, to the defendants. The Court is called upon to decide whether a trustee appointed under Chapter 11 of the Bankruptcy Code, who is subsequently appointed to serve as Chapter 7 trustee upon conversion of the case, h...
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CASE SUMMARY In this case the Court is called upon to determine whether or not, under the facts set out below, the United States may set off a $103,404.58 tax penalty against its prepetition obligation to the debtor. For the reasons set forth herein this Court concludes that setoff is proper. PRELIMINARY FACTS AND PROCE-. DURAL BACKGROUND On December 23, 1983, Tradex, Inc. (“Trad...
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MEMORANDUM OF DECISION ON PETITION FOR RECONSIDERATION AND REINSTATEMENT OF THE AUTOMATIC STAY A petition for reconsideration and reinstatement of the automatic stay is before the court at this time. For the reasons stated herein, we hold that, by operation of Section 365(d)(4) of the Bankruptcy Code, the lease in question has been deemed rejected. Accordingly, the petition is denied. ...
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64 B.R. 301 (1986) In the Matter of HALLMARK BUILDERS, INC., Debtor. HALLMARK BUILDERS, INC., Plaintiff, v. Allen DAWSON and Barbara Dawson, Defendants. Bankruptcy No. 84-551-ORL-BK-AP. United States Bankruptcy Court, M.D. Florida, Orlando Division. August 21, 1986. *302 T. Kevin Knight, Orlando, Fla., for debtor/plaintiff. Allen E. Dawson, Barbara S. Dawson, Cape Coral, Fla., for defendants. FI...
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MEMORANDUM-OPINION This matter comes before the Court on the amended application of Bayou Steel Corporation (Bayou) for allowance of compensation and reimbursement of expenses, as well as reimbursement for payments made to its attorneys, in connection with its activities as co-chairman of the Official Unsecured Creditors’ Committee in the total sum of $39,422.11. A hearing was held on the...
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DECISION ON MOTION SEEKING MODIFICATION OF STAY CONTAINED IN ORDER OF CONFIRMATION Aloha Chipwich, Inc. (“Aloha”), a party to a rejected contract with the confirmed Chapter 11 debtor, has moved pursuant to Fed.R.Civ.P. 60(b) to vacate a “so ordered” stipulation between it and the debtor which settled an adversary action brought by the debtor against Aloha. Aloha also seeks a modification ...
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64 B.R. 5 (1986) In re Glenn Richard AHRENS, Judy Ann Ahrens, Debtors. Glenn and Judy AHRENS, Plaintiffs, v. Philip BRADFORD and Leo F. Doyle, Trustee, Defendant. Bankruptcy No. 82-03335G, Adv. No. 85-0127G. United States Bankruptcy Court, E.D. Pennsylvania. August 21, 1986. Michael Donahue, Del. Co. Legal Assistance Assn., Chester, Pa., for debtors/plaintiffs, Glenn Ahrens and Judy Ahrens. Carro...
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MEMORANDUM OPINION CASE SUMMARY This matter came before the Court on November 21, 1985 on the trustee’s objection to the administrative expense claim of the law firm of Hansen, Jones, Maycock & Leta, attorney for the debtor. The Court is called upon to decide whether legal services performed postconfirmation for a reorganized Chapter 11 debtor are entitled to an administrative expens...
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ORDER THIS MATTER comes before the Court on Tri-State Bank’s motion to dismiss, or, *295 alternatively, motion for relief from automatic stay. A hearing was held on August 6, 1986. The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1334 and § 157. The debtors in these joint cases, two sisters, made a note in favor of Tri-State Bank in the amount of $100,000.00, secured by rea...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this pre-Code proceeding is an issue submitted to this Court for resolution by T & B General Contracting, Inc. and Ballenger Corporation, the Plaintiff and one of the Defendants in this adversary proceeding. Although there are no formal motions for summary judgment before the Court, the parties agree tha...
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ORDER This case is before the Court on a Motion by Shamrock Rental Co. (“Shamrock”) for Relief from Stay and Objection to the Debt- or’s Chapter 13 plan. The Debtor filed her Chapter 13 petition on March 25, 1986. On September 4, 1985, the Debtor entered into an agreement (“Lease-Purchase Agreement”) with Shamrock for the rental of an electric range. The Lease-Purchase Agreement provided *73...
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64 B.R. 305 (1986) In the Matter of MAJOR TIRE COMPANY, Debtor. Thomas P. STAMPS, as Trustee for Major Tire Company, Plaintiff, v. SEXTON BROS. TIRE CO., Defendant. Bankruptcy No. 83-04051A, Adv. No. 85-0747A. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. August 22, 1986. J. Michael Lamberth, Palmer, Lamberth, Bonapfel & Cifelli, P.A., Atlanta, Ga., for plaintiff. Charles W....
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OPINION The issue before the Court is whether the Absolute Priority Rule, as codified in 11 U.S.C., § 1129(b)(2)(B)(ii), permits the Debtors to retain an equity interest in their farming operation on the strength of their promise to provide their labor and services in conducting the farming operation according to the Plan. The Debtors, H. Dean Stegall and Sandra Lorene Stegall, filed their Ch...
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MEMORANDUM-OPINION Creditor, Cindy Ann True (True), moves to set aside this Court’s Order dismissing the debtor’s petition for Chapter 7 relief. By way of background, the debtor filed for Chapter 7 relief on September 11, 1985. A Discharge Hearing was scheduled for January 9, 1986 and thereafter continued to February 6, 1986. On February 4, 1986, the debtor filed a Motion to Dismiss. Followin...
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OPINION SECURITY AGREEMENT — DESCRIPTION OF COLLATERAL This case presents the question whether a security agreement becomes ineffective when the collateral is modified in such a way as to no longer match the description in the agreement. I The facts in this case are very simple. First of America Bank — Ludington, N.A. (“Bank”), Defendant, financed debtor’s purchase of a new Chevy “Delta” Van, Veh...
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AMENDED ORDER GRANTING MOTION OF ARTHUR ANDERSON & COMPANY (U.S.A.), ARTHUR ANDERSON & COMPANY (REPUBLIC OF IRELAND), ARTHUR ANDERSON & COMPANY (UNITED KINGDOM), TO DISMISS THIRD-PARTY COMPLAINT OF ROBERT WELD BENJAMIN AND AN ORDER GRANTING MOTION OF PAUL, WEISS, RIFKIND, WHARTON & GARRISON AND ALLAN COHEN’S MOTION TO DISMISS THIRD-PARTY COMPLAINT OF ROBERT WELD BENJAMIN This adversary proceeding...
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MEMORANDUM OPINION The trustee in bankruptcy in this case seeks to revoke the discharge of the debtors pursuant to § 727(d)(2) of the Bankruptcy Code on the grounds that the debtors have “knowingly and fraudulently failed.... to deliver or surrender” certain specified property of the bankruptcy estate to the trustee. The debtors in this case filed their Chapter 7 bankruptcy petition with this...
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MEMORANDUM DECISION Introduction This is before the Court on a complaint to determine dischargeability of a debt filed on behalf of Stewart Lyle Hines (“debtor”) by Attorney Doug Cummings on June 11, 1986. Debtor substantively alleges that: 1) Because the loan which was received pursuant to the Health Education Assistance Loan Act (HEAL) has been due and owing for more than a fiv...
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MEMORANDUM OPINION The issue before the Court is the dis-chargeability of the Plaintiffs debt in the approximate sum of $31,900.00. The facts relating to the within adversary proceeding presented at trial are as follows. The Debtor/Defendant, Jimmy Lee Mullins, prior to filing a Chapter 7 liquidating petition in this Court on February 12, 1985, was engaged in the used car business in...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE EXPENSE Lyons Capital Resources, Inc. (“Lyons”) filed its Application for Payment of Administrative Expense on June 2, 1986. In its Application, Lyons requested that, if *277 Groves Farms, Inc. (“Debtor”) were unable to pay the administrative expense, secured creditors be surcharged for that expense. ...
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MEMORANDUM AND DECISION An adversary proceeding was filed by the plaintiff, Dorothy J. Woodams, on October 3, 1985 seeking the denial of a discharge of a debt owed to her by the debtor, Donald R. Cruickshank. The basis of the plaintiffs original complaint lies within 11 U.S.C. § 523. The complaint also generally seeks the denial of discharge of the debtor presumably under 11 U.S.C. § 727....
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MEMORANDUM OPINION AND ORDER This matter comes on for consideration of an objection by the debtor, Magic Circle Energy Corporation (“Magic Circle”) to a proof of claim filed by B.J. Hughes Services, a division of Hughes Tool Company (“Hughes”). After a hearing on the matter, the court requested that the parties file a stipulation of facts and any further legal memoranda in support of thei...
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MEMORANDUM DECISION This case is before the Court upon a motion for relief from stay filed on behalf of the First Wyoming Bank, N.A. — Sheridan (Bank). Counsel for the Chapter 7 Trustee and the Bank stipulated to the facts and submitted the matter to the Court on briefs. The issue is whether U.C.C. Article 9, governing secured transactions, applies to the assignment of Debt- or Thomas Wor...
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OPINION I This appeal presents the issue of whether, under Section 506(c) of the Bankruptcy Code, a real estate broker is entitled to payment from the proceeds of the sale of property it arranged before the secured creditor has been paid in full. The trial court allowed such payment. We AFFIRM. II FACTS The principal asset of the Debtor, Lilly C. Anderson, was real property located at 5...
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Findings of Fact, Conclusions of Law and Judgment I Statement of Proceedings This adversary proceeding came on for bench trial on the 3rd day of October, 1985, *746 pursuant to pretrial order of this Court on July 15, 1985. The Plaintiffs complaint alleges that the scheduled indebtedness to it by the Defendant in the sum of $1,578.18 or in the alternative $1,60...
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MEMORANDUM OF DECISION (Cross-Motions for Summary Judgment) Robert Joel Zakroff, Chapter 7 trustee for the bankruptcy estate of Regin Brian Ribcke, has sued Jesse Markson and Lucille Markson alleging that a conveyance of real property by the debtor to the defendants within one year before the debtor’s Chapter 7 filing is a preference and therefore may be avoided under 11 U.S.C. § 547...
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*447 MEMORANDUM OF DECISION The court has before it fifteen applications for compensation and reimbursement *448 of expenses, presented by or on behalf of a variety of attorneys and accountants for services performed in connection with the reorganization efforts of the three debtor corporations. The applications, in sum, seek in excess of 3.5 million dollars as compe...
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Graham Oil Company appeals from an order of the Bankruptcy Court setting aside its garnishment of Kramer Trucking’s bank account as a voidable preference, 11 U.S.C. § 547. We review the bankruptcy judge’s ruling on stipulated facts de novo. ISSUE We first address the threshold issue of the disqualification of the bankruptcy judge. The parties filed a joint stipulation of facts...
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OPINION Creditors Cement Asbestos Sales, Inc., Groundhog, Inc., and Eugene Dusanko appeal an order denying payment of pre-petition and post-petition interest in this Chapter 11 case. We reverse. FACTS Groundhog and Cement Asbestos filed timely proofs of claim for labor and materials supplied. Dusanko filed a proof of claim for money advanced. Creditors were awarded the principal...
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MEMORANDUM OF OPINION This Complaint was filed by the debtor alleging a violation of the automatic stay provision of 11 U.S.C. § 362 by the defendant, the Internal Revenue Service. The debtor seeks damages, the turnover of property to the estate pursuant to 11 U.S.C. § 542(a), and injunctive relief restraining the Internal Revenue Service from further levies on the debtor’s salary. T...
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ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND DISMISSING ADVERSARY PROCEEDING Debtor-in-possession’s motion for a preliminary injunction came on regularly for hearing on May 20, 1986. Mark Wray appeared on behalf of the debtor-in-possession Packers’ Cold Storage, Inc. (“Packers’ ”). Jeff Farano appeared on behalf of respondent Inco Express, Inc. and interested party Illini. Ann Poug...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on a question involving the 1984 Amendments to Section 707(b) and the permissable activities of creditors thereunder. Debtor filed her petition under Chapter 7 on March 20, 1986. Debtor’s initial schedules showed monthly income of $3,000.00 per month and estimated monthly expenses of $1,520.26, leaving disposable income of $1...
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MEMORANDUM-DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT Plaintiff Clarence Dawley (“Dawley”) commenced his adversary proceeding against Debtor, Mark A. Gould, d/b/a Gould’s Construction (“Gould”), objecting to the dischargeability of a certain obligation pursuant to 11 U.S.C. § 523(a)(2) and § 523(a)(4) (“Code”). Thereafter, Daw-ley moved for summary judgment pursuant to Federal Rule...
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OPINION A resolution of this case hinges on whether funds, deposited by prospective purchasers of the debtor’s assets into a bank account opened in the name of the debtor, are property of the estate. In reviewing applicable law, we conclude that an additional evidentiary hearing should be held in order to adjudicate the rights of the parties as to the bank account. The facts of this dispute are as...
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OPINION In this case in which a chapter 13 debtor is an individual engaged in business, the paramount question posed is whether we should grant a creditors’ motion which requests, in the alternative, dismissal of the case or conversion to chapter 11, on the basis that the debtor’s operation of his business is unreasonably prejudicial to the creditors due to a lack of adequate supervision. For the...
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MEMORANDUM OPINION CASE SUMMARY This matter came before the Court on the hearing to confirm the plan of reorganization filed by First Interstate Bank of Utah, N.A. (“First Interstate”), a secured creditor of the debtors. First Interstate did not submit and obtain Court approval of a disclosure statement and did not solicit acceptances or rejections of its plan from holders of claims ...
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ORDER SUSTAINING IN PART DEBTORS’ OBJECTION TO ALLOWANCE OF CLAIM OF EDWARD M. CAREY This matter is before the Court upon debtor’s objection to allowance of claim of Edward M. Carey. I. Facts Mr. Carey became a shareholder when he sold Carey Energy Corporation to debtor in 1979. In return, he received $4,000,000 in cash and 160,000 shares of Series I Convertible Preferred Stock....
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of Paul J. Long to Vacate Order. Paul J. Long is represented by Attorney Mary P. Gorman. The Federal Land Bank (FLB) is represented by Attorney Daniel Donahue. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure....
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS The matter before the Court is Defendant’s Motion to Dismiss Trustee’s § 547(b) preference complaint which came for hearing on July 9, 1986. The Court, having adduced the evidence and considered the arguments of counsel, now makes the following Findings, Conclusions and Order pursuant to F.R.B.P. 7052. ...
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MEMORANDUM OPINION AND ORDER RE: PLAINTIFFS’ MOTION FOR ADDITIONAL FINDINGS AND AMENDED JUDGMENT The Plaintiff, J.W. Holland, seeks to be discharged from, his potential liability as the “co-signer” for his son, Ricky, of a note *676 that represents the debt due the Defendant, Whitington Trucks, Inc., for the purchase of a truck. In a “Memorandum Opinion and Order” dated March 17, 1986, this C...
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OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT I. Facts On September 1, 1980, Longhorn Oil and Gas Co., Debtor, and Fox and Holland entered into an oil and gas lease operating agreement whereby the Debtor was designated as operator and Fox and Holland the non-operator. In July, 1981, Debtor completed and abandoned a dry hole known as the Red Fish Reef Well. In connection with the ...
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This appeal raises the question of whether a trial court is required, as a matter of law, to dismiss a Chapter 13 case after the Debtors defaulted on scheduled payments. We conclude that no such requirement exists and AFFIRM. Linda Sievers entered into a land sale contract with Gary Walter Randolph Green and Jenelle L. Green (“Debtors”), wherein Sievers was to receive $102,000 payable in monthl...
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MEMORANDUM DENYING PRELIMINARY INJUNCTION I. INTRODUCTION This motion for a preliminary injunction is brought by Naugles, Inc. (“Naugles”) to *902 prohibit the debtor Vylene Enterprises, Inc. (“Vylene”) from infringing its federally registered trademarks and from otherwise unfairly competing with it. The grounds for the motion are that Vylene’s ten-year franchise agreeme...
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ORDER ON OBJECTION TO CLAIM OF EXEMPT PROPERTY THIS IS a Chapter 7 case and the matter under consideration is an objection to the exemption claim of Dwight H. Owen, the Debtor involved in this liquidation case. The challenge to the Debtor’s right to the exemption is interposed by Helen Owen, a judgment creditor of the Debtor. The property involved in this controversy is known as Unit 301 of Emb...
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ORDER This case is before the Court on a motion by Providers Fidelity Life Insurance Company (“Providers”) to dismiss a third-party counterclaim filed by American Centennial Life Insurance Company (“American Centennial”). The procedural background of this adversary proceeding may be described briefly as follows: During the course of bankruptcy proceedings and with Court approval, the debt...
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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 the above entitled adversary action. The parties have filed the arguments and evidence they wish the Court to consider relative to the merits of this motion, and have been afforded the opportunity to respond to the arguments made by opposing counsel. The Court has ...
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OPINION The primary issue in the instant suit brought under the Truth-In-Lending Act (“the TILA”), 15 U.S.C. § 1601 et seq., is whether a mortgage lender’s disclosure statement is deficient for failing to indicate that the ten-day limitation of § 9-204 of the Uniform Commercial Code is applicable in light of the fact that the mortgage contains an after acquired property clause. We conclud...
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MEMORANDUM OF OPINION MONTY CARROLL RODGERS and wife, CHERI LE RODGERS (the Debtors), filed for relief under Chapter 7 of the Bankruptcy Code on April 11, 1986. On Schedule B-4 of their Petition and Schedules, the Debtors claimed as exempt the following farm equipment: 32' flat trailer Shop made Rod weeder 1974 880 John Deere Swather Graham chisel Plow 283 John Deere Stripper Pop up hayloader Roun...
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MEMORANDUM OF DECISION On May 5, 1986, Boyd Elevator, Inc. (Boyd) filed its petition in bankruptcy under Chapter 11 of the Bankruptcy Code. *691 Thereafter Boyd filed its Motion to Use Cash Collateral 1 consisting of receipts for grain storage, and warehouse charges for in-loading and out-loading grain. The First National Bank of Amarillo (Bank) opposed Boyd’s Moti...
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OPINION I This appeal raises the question of what filing fee is to be charged a debtor in possession for filing an adversary proceeding. The trial court held that the fee schedule limits such fees to the amount of money actually recovered by the debtor in possession. We REVERSE. II FACTS In connection with its Chapter 11 proceeding, the debtor in possession, the Phoenix Group, Inc., fil...
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ORDER ON CLAIM OF EXEMPTION This case is before the court on the “Objection to Debtor’s Claim of Exemptions” filed herein by the trustee in bankruptcy. This objection related to the debtor’s claim on his B-4 Schedule to exempt under Iowa Code § 627.6(7) (dealing with “unmatured life insurance policies”) an item described as a “Farm Bureau I.R.A.” During the course of the further hearings on thi...
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OPINION This matter comes before the court on application for Payment of Administrative Expenses filed by General Electric (GE). Objections to said application have been filed by the debtor, S & T Industries, Inc. (S & T), by Citizens National Bank & Trust Co. (Citizens), and by the Unsecured Creditor’s Committee (Committee). GE seeks payment of $13,993.75 as an administrative expens...
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MEMORANDUM-OPINION G. WILLIAM BROWN, Bankruptcy Judge. This Complaint tests the strong arm powers of the Trustee under 11 U.S.C. 544(b). At issue is whether the threshold test set forth in Section 544(b) has been met and if so, whether the actions and conduct of the defendants are voidable under Kentucky Statutes K.R.S. 378.010 and 378.020. Section 544(b) provides as follows: ...
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64 B.R. 253 (1986) In re FRANKLIN PARK DEVELOPMENT I, Franklin Park Development II, Debtors. Bankruptcy Nos. 86-721-HL, 86-722-HL. United States Bankruptcy Court, D. Massachusetts. August 12, 1986. Joseph Ackerstein, Office of the U.S. Atty., Boston, Mass., for U.S. John F. Blanchon, Dept. of Inspectional Services, Boston, Mass. John F. Cullen, (Cullen & O'Connell), Boston, Mass., Trustee. Kurt D...
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DECISION AND ORDER ON § 1126(e) This Chapter 11 case had proceeded to the point where a plan was presented to creditors for a vote pursuant to 11 U.S.C. § 1126. The unsecured creditors whose claims total in excess of $1,500,000.00 have, both as to number and amount, voted to accept the plan. Class II creditors in number voted to accept the plan, but acceptances were insufficient as to amount in...
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ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN This matter is before the Court upon the requested confirmation of the Chapter 13 plan proposed by Carl P. Festa (the “Debt- or”) and upon this Court’s independent obligation to find that all requirements for confirmation, as set forth in § 1325(a) of Title 11 United States Code have been met. In re Hockaday, 3 B.R. 254 (Bankr.S.D.C...
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OPINION AND ORDER The Debtors are farmers. They still have the exclusive right to propose a plan of reorganization. On February 21, 1986, they filed a Chapter 11 proceedings in bankruptcy, and subsequently, they filed an application to grant a security interest to facilitate the planting and harvesting of the 1986 crop. Both the Federal Land Bank of St. Louis (LAND BANK) and the Farmers and Mer...
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*650 MEMORANDUM-OPINION This matter comes before the Court on the objection of the creditor, O.J. Tretter, to certain exemptions claimed by the debt- or, Dr. V.L. Fisher. By Order entered March 4,1986, the parties agreed to submit this issue on written memoranda, which memoranda are now of record. The debtor filed his petition for relief on December 30, 1983. He claimed as exempt the follow...
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DECISION AND ORDER RE RIGHT TO ARBITRATE In this Chapter 11 case, a hearing was held pursuant to our Decision and Order entered December 10, 1985. 58 B.R. 6. That Decision and Order dealt with Union’s Application to Lift Stay to permit it to arbitrate six grievances specified in the Application. In our aforementioned Decision and Order, we denied Union’s application to lift the stay pending a fina...
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MEMORANDUM OPINION This matter came on for consideration by the Court upon the motion filed on'behalf of Citicorp Industrial Credit, Inc. on January 7, 1986 requesting (1) an adjudication that certain property is not included in the bankruptcy estate, (2) dismissal, (3) relief from the automatic stay, or (4) adequate protection. A hearing on the motion was held before the Court on March 6...
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Angel & Frankel, P.C., are moving for an order awarding them compensation for their services in the sum of $34,961.00, against which sum a retainer of $10,000.00 previously paid them is to be applied. They request such compensation as former counsel to the debtors and debtors-in-possession herein, Augie/Restivo Baking Company, Ltd., and Augie’s Baking Company, Ltd. (“Augie/Restivo”). Notice of ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Summary Judgment filed by the Defendant-Debtor in the above entitled adversary action. The parties have filed their arguments relative to the merits of the Motion and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the entire r...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion To Dismiss and Motion For Determination of Core Proceeding filed by the Defendant in the above entitled adversary action. The parties have filed their arguments relative to the merits of these Motion and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those ...
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MEMORANDUM OF OPINION This matter comes on for hearing pursuant to the Court’s Order of December 30, *713 1986, and pursuant to statements of counsel made at the hearing on February 7, 1986; and the Court specifically finds this is a Core proceeding under Section 157 of Title 28, more particularly the subsections therein of 157(b)(2)(A), (B), (C), (E), (K), (0). In adversary number 83-0465, B...
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OPINION The matter for resolution is whether we should grant a mortgagee’s motion for relief from the automatic stay under 11 U.S.C. § 362(d) of the Bankruptcy Code (“the Code”) in order to allow it to foreclose its mortgage on the basis that the debtor has failed to make adequate periodic payments on the debt. For the reasons outlined below, we will grant the motion for relief from the automat...
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OPINION The predominant question posed in the instant case is whether we should reconsider our opinion and accompanying order in In re Divco Philadelphia Sales Corp., 60 B.R. 323 (Bankr.E.D.Pa.1986), on our finding that a claim of the Pension Benefit Guaranty Corporation (“the Pension Fund”) is not a tax within the meaning of Bankruptcy Rule 2002(j). For the reasons outlined be...
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*71 MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the Application for Payment of Use and Occupancy as an Administrative Expense filed by BARRINGTON INDUSTRIAL ASSOCIATES [Barrington], represented by ROBERT BOEHM & ASSOCIATES, LTD., and upon the Response thereto filed by MEDICAL EQUIPMENT MANUFACTURING CO., INC., one of the Debtors in these Chapter 11 cases, r...
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MEMORANDUM OPINION AND ORDER This matter came before the court on cross-motions for summary judgment with respect to Count I of the TRUSTEE’S Complaint to avoid preferential transfers and the AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO’S (“BANK”) motion to strike and dismiss Counts I through IY of the Complaint. The TRUSTEE appeared by counsel, EDWARD W. ROTHE. The defendant BANK ...
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Reasons for Judgment This matter is before the court upon cross-motions for summary judgment. Complainant Southwest National Bank (Bank) was represented by Thomas G. Gruenert. Defendant, Kenneth E. Reasoner (Debtor) was represented by James E. Mouton. The action was commenced by a complaint seeking to deny the discharge and to determine dischargeability of a debt due Bank. Bank filed its motion...
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REASONS FOR JUDGMENT I.Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bankruptc...
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DECISION In this case, the court is called upon to determine whether 11 U.S.C. § 365(d)(4) authorizes a Bankruptcy Court to extend the time for a debtor in possession to assume or reject an unexpired lease of nonresidential real property when the motion to extend is filed within 60 days from the commencement of the case, but is heard beyond the 60-day period. *24 The court h...
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Plaintiff Caffal Bros. Forest Products, Inc. (“Caffal Bros.”) filed a complaint to recover $13,965.48 as a nondischargeable debt based on a forged check. The debtor, John Braun, moved to dismiss the complaint as untimely. This is a core proceeding susceptible of final determination by this Court. 28 U.S.C. § 157(b)(2)(I). The motion to dismiss, which will be considered a motion for summary judg...
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MEMORANDUM DECISION These cases have been consolidated for the purpose of resolving a single issue: Whether a creditor’s liquidating plan must be administered by a liquidating agent designated by the creditor/proponent of the plan or may be administered by a trustee appointed pursuant to the provisions of the Code by the United States Trustee. The United States Trustee’s position is that a li...
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MEMORANDUM OPINION This matter comes before the Court upon a motion by Coopers & Lybrand, former Chapter 11 trustee of this estate, to recover from Seafirst Commercial Corporation costs and expenses, pursuant to § 506(c) of the Bankruptcy Code. The above-entitled matter was originally filed as a Chapter 11 case on August 2, 1984. Shortly after the commencement of the case, the debtor...
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AMENDED MEMORANDUM DECISION RE: MOTION TO AMEND On March 24,1986, First Interstate Bank of Hawaii (“First Interstate”) filed its Motion to Amend Order wherein it requested this Court to amend its Findings of Fact, Conclusions of Law and Order Re Motion to Confirm Rejection and Termination of Lease filed on March 13,1986, as Amended by Order Amending Findings of Fact, Conclusions of Law and Orde...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER Mark Albert Schmidt and Teresa Gail Schmidt (“the Schmidts”) filed their “Motion for Contempt Citation” as an adversary proceeding on January 21, 1986. American Fletcher National Bank and Trust Company (“AFNB”) filed its Motion to Dismiss on February 28, 1986. The Motion to Dismiss came before this Court for hearing on July 1, 1986. Teresa Gail ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW; ORDERS RE: MOTION TO LIFT STAY The matter before the Court is a Motion to Lift Stay filed by Mary Allan. The Court having reviewed the evidence and being fully advised, now makes the following Findings of Fact, Conclusions of Law, and Orders pursuant to F.R.B.P. 7052. This is a core proceeding under 28 U.S.C. § 157(b)(2)(G). FINDINGS OF FACT 1. The Debt...
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MEMORANDUM OPINION This matter comes before the Court on debtors claimed exemption in their interest in two ERISA qualified retirement plans. The Trustee has filed his objection to this claimed exemption and both parties have briefed the issue, and the Trustee has taken the deposition of the Business Manager of the debtor’s former employer. The debtors filed their Chapter 7 petition ...
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FINDINGS AND CONCLUSIONS, AND ORDER ALLOWING CLAIM OF LOUIS M. CIOCI, ESQ. Heard on April 23, 1986 on the debtor’s objection to the claim of Louis M. Cioci, Esq. On June 27, 1985, Mr. Cioci filed a proof of claim in the amount of $1,760, the balance allegedly owed to him by the debtor for legal services performed for her in connection with divorce proceedings prior to the bankruptcy. The debtor ob...
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MEMORANDUM OPINION This case presents a question regarding the scope of the opinion of the United States Court of Appeals for the Fourth Circuit, rendered upon appellate review of this Court’s denial of the motion of Merritt Commercial Savings and Loan, Inc. (“Merritt”) to intervene into litigation between the trustee and the Board of Supervisors of Fairfax County, Virginia (“Fairfax Coun...
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MEMORANDUM OPINION On September 24, 1985, a hearing was held on the debtors’ motion to cite the Bank of Bearden (Bank) and Mr. Ricky Green (Mr. Green), President of the Bank, for contempt for violation of 11 U.S.C. § 525, the debtor discrimination statute. The Court has jurisdiction to hear this matter as a core proceeding. 28 U.S.C. § 157(b)(2)(0). The following constitutes the Cour...
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MEMORANDUM OPINION Vincent Gaines Implement Company, Inc., filed a voluntary petition for relief under the provisions of chapter 11 on January 7, 1986. On February 11, 1986, the debtor-in-possession filed a complaint to determine the extent and validity of the lien of the Small Business Administration (SBA). This adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b...
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ORDER ON MOTION TO EXTEND TIME TO FILE COMPLAINT TO OBTAIN A DETERMINATION OF NONDIS-CHARGEABILITY This is a Chapter 11 case, and the matter under consideration is a Motion to Extend the Time to File a Complaint, seeking to obtain a determination of nondischargeability of a debt pursuant to § 523(c) of the Bankruptcy Code. The Motion is filed by Bronson F. Byrd (Byrd), a Creditor of Willi...
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MEMORANDUM OPINION This matter comes before the court pursuant to remand from the United States *605 District Court with directions to apply a clear and convincing standard in determining whether the debt due the plaintiff-creditor by the debtor is nondischargeable pursuant to 11 U.S.C. 523(a)(2)(B). In re Martin, 761 F.2d 1163, 1165 (6th Cir.1985); In re Stephens, 26 B.R. 389 (Bankr.W.D....
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OPINION Came on for consideration the complaint to determine dischargeability filed by Citizens Bank of Byhalia, hereinafter referred to as Citizens Bank, against the Debtors, Richard Dale Byrd, aka Joe Byrd, Gary Wayne Rhea, Horace Rhea and Dolly Rhea, and Steve Lee Rhea and Monique C. Rhea; responsive pleadings having been filed by said Debtors; on consideration of the complaint for dam...
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DECISION AND ORDER This is a motion by a Chapter 11 debtor, Kodo Properties, Inc., (hereinafter “Kodo”), to void a lis pendens filed by the Seward Development Company, (hereinafter “Seward”), against the property of the debtor. The motion is granted for the reasons hereinafter set forth. FACTS Seward is holder of a first mortgage on the debtor’s real property. A plan of reorganization pro...
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DECISION Western Co-operative Fertilizers (U.S.) Inc. (“WCFL”), individually and on behalf of a partnership, seeks an order from this Court pursuant to § 365 of the Bankruptcy Code, 11 U.S.C. § 365 (1984) (the “Code”), requiring its partner, Beker Industries Corp. (“Beker” or the “Debtor”), to determine forthwith whether to assume or reject certain executory contracts relating to the Cond...
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OPINION In a case of first impression in this district, the first of two major questions for resolution is whether an election for a trustee in a chapter 7 case may be upset because an attorney at law arguably violated the bar to the solicitation of proxies and allegedly also, as a holder of multiple proxies, did not file with the clerk of the court a *595 list of proxies and...
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MEMORANDUM DECISION This matter comes before the Court on the motion of the United States Trustee pursuant to Bankruptcy Rule X-1009 in support of the Chapter 7 Trustee’s proposed pro rata distribution among administrative claimants in the above-captioned case. This case was filed under Chapter 11 and later converted to a case under Chapter 7. James A. Craig, a Sioux Falls attorney, ...
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The plaintiffs brought this suit to determine whether a debt to the defendant for county real property taxes was discharged in their chapter 13 case. The facts are undisputed. The plaintiffs (debtors) filed their chapter 13 case in 1981, and their chapter 13 plan was confirmed. The plan provided that claims entitled to priority under Bankruptcy Code § 507 would be paid in full. 11 U.S.C. §...
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DECISION Wisconsin Higher Education Corporation (WHEC), an unsecured creditor, has objected to confirmation of the debtor’s chapter 13 plan. The plan proposes payment of 50% of the WHEC claim over a period of five years with the balance to be discharged at the end of the plan. WHEC contends that, in the absence of full payment, § 1322(b)(5) of the Bankruptcy Code 1 requires tha...
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MEMORANDUM OPINION AND ORDER The Trustee of the bankruptcy estate of Dorothy E. Martin filed a complaint against *639Carl P. Hovatter. Ms. Martin and Mr. Ho-vatter were formerly married. Before their separation and divorce, Mr. Hovatter filed a Chapter 7 bankruptcy and received a discharge from joint marital debts on September 28, 1981. They separated on or about July 1, 1982, were later divorced...
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OPINION AND ORDER This matter is before the court upon Defendant/Debtor’s motion to dismiss the complaint of Plaintiff United Food and Commercial Workers Local 626 to compel arbitration. For the reasons stated below, the Defendant’s motion is well taken and should be granted. FACTS Plaintiff and Defendant negotiated a collective bargaining agreement in 1983, setting forth the wa...
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ORDER Debtors have proposed a plan pursuant to 11 U.S.C. § 1321. Tinker Credit Union, a partially secured creditor, objects to confirmation pursuant to 11 U.S.C. § 1324. *111 The plan provides for full payment of administrative claims in advance of all other claims. 11 U.S.C. § 1326(b)(1). Tinker objects to this provision because holders of secured claims would receive no disbursements until ...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether Standard Savings and Loan Association an oversecured creditor, is entitled to late charges accrued on the Debtors account pursuant to 11 U.S.C. § 506(b). Briefly stated, the facts are follows. The Debtors, Glenn and Glenna Richardson, filed their Chapter 13 petition with the Court on July 19, 1984. Standard Savings and Loan As...
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MEMORANDUM OPINION This matter arises upon the Trustee’s Complaint to avoid certain transfers of property of Donald L. Carper, Sr., a Debtor herein (the “Debtor”), to the United States of America, through the Farmers Home Administration (“FmHA”). The “transfers” involved herein are the attachment of security interests in favor of FmHA in milk sale proceeds generated by the Debtor’s dairy-farming o...
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MEMORANDUM DECISION Plaintiff seeks recovery of $756,919, the net proceeds of a loan improperly disbursed by the escrow agent to the debtor after bankruptcy. The creditors’ committee appointed in this case has answered, asserting that the funds belong to the estate. The matter was tried on July 22. The facts are completely undisputed and, so far as they are essential to this decision, are simple. ...
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OPINION At a recessed hearing, scheduled pursuant to the order of this Court, there came on for consideration the objection to confirmation of Debtors’ plan, motion to dismiss, and in the alternative, motion for involuntary conversion, filed by H.W. Skinner and Press-Seal Gasket Corporation, hereinafter referred to collectively as Movants; response to said objection, etc., filed by Mason M. Bak...
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DECISION ON VARIOUS MOTIONS IN CONNECTION WITH DEBTOR’S LEASEHOLD INTEREST Au Natural Restaurant, Inc., f/d/b/a Do-rherb Restaurant, Inc. (“Au Natural” or “the debtor”) filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code (“the Code”), 11 U.S.C. § 101 et seq. ■ (West 1979 & 1986 Supps.), on August 21, 1985. Debtor is currently leasing its pre...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Second Amended Complaint filed by the Plaintiff in the above entitled adversary action. The Court conducted a Trial in this case, at which it heard the evidence and arguments presented by the parties. The parties have filed both post-trial arguments and proposed findings of and conclusions of law. The Court has review...
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*27 ORDER This matter came on for hearing May 23, 1986, upon Defendant’s Motion To Dismiss Plaintiffs Complaint which seeks to enjoin the United States of America (IRS) from invoking 26 U.S.C. § 6672 against those persons (non-debtors) liable thereunder for Debtor’s unpaid taxes plus 100 percent penalty. After review of the file, the arguments, the Briefs of the parties and consideration, T...
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OPINION The predominant question is whether under the Bankruptcy Act of 1898, wages earned by a debtor’s employees after confirmation of a chapter XI plan but prior to *108conversion to a liquidation proceeding have priority over prepetition wages. For the reasons expressed below, we conclude that the wages do not have priority, but rather share ratably with prepetition wages. We summarize the fa...
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MEMORANDUM This cause came on for hearing on the motions of City Bank and Trust to classify its claim and objecting to the claim of Farmers Home Administration. The hearing was begun on January 13, 1986, and continued on February 14, 1986. The main issue raised by City Bank and Trust is one of priority between its security interest and the security interest of FmHA in the debtors’ fa...
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Memorandum Opinion FACTS This action was commenced in the United States District Court for the Western District of Pennsylvania on May 20, 1983 by a complaint for an injunction to restrain Ki-antone Pipeline Corporation (Kiantone) from making delivery, and to restrain United Refining, Inc. (United) from accepting delivery, of certain shipments of oil which United had purchased from C...
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FACTS AND PROCEDURAL BACKGROUND Before the Court are three contested matters which have been consolidated to consider common issues of law concerning whether or not these self-employed debtors’ interests in their Keogh retirement plans are excluded or exempt from their bankruptcy estates. The Kerr Case Thomas A. Kerr, a practicing dentist, filed a voluntary petition for relief u...
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MEMORANDUM OPINION The issue for determination here involves a dispute over entitlement to proceeds of a sale of real property placed by the principal litigants in an escrow account. On July 30, 1984, the debtors George H. and Peggy A. Trammel, defendants in this action, executed, together with Mr. Trammel’s two sisters, a deed conveying to plaintiffs Nolan K. and Deborah A. Barzee a...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW WILLIAM H. FRAWLEY, The debtor, by Terrence Byrne, has brought this motion pursuant to 11 U.S.C. § 522(f) and Bankruptcy Rule 4003 to avoid liens on property. The Production Credit Association of Wausau (PCA), by Robert Konkol, objects to the debtor’s motion with respect to four items of equipment. A hearing was held on this matter on Ju...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing before the Court in this Chapter 13 proceeding on the Debtor’s Motion to Confirm a Chapter 13 Plan. The Central Bank of Denver (“Bank”), a secured creditor, objected to the plan which brought the matter on for hearing. No evidence was presented at the hearing. The key facts were stipulated to by the parties. The Bank is a s...
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MEMORANDUM OPINION AND ORDER This matter came on for trial before the Court on the complaints filed herein by the United Bank of Denver (“Bank”) and GATX Third Aircraft Corp. (“GATX”) objecting to the Debtor’s discharge herein pursuant to the provisions of 11 U.S.C. § 523 and § 727. This matter is a core proceeding pursuant to and within the meaning of 28 U.S.C., Sections 157(b)(2)(I) and (b)(2...
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ORDER SUSTAINING IN PART OBJECTION TO CLAIM OF PAYNE & KELLER COMPANY, INC., AND DISALLOWING CLAIM OF CARDINAL INSULATION COMPANY This matter came before the Court on the objection of Charter International Oil Company (hereinafter referred to as CICO) to proofs of claim 319-259 and 319-913 filed by Payne & Keller Company, Inc., (hereinafter referred to as P & K) in the amount of $2,923,61...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 11 adversary proceeding is a Motion for Summary Judgment, filed by Sun Bank/Suncoast, N.A., f/k/a Flagship Bank of Pinellas, N.A. (Sun Bank) against the Complaint to Recover Set Off, filed by Moody & Newton, Inc. (Debtor). The facts relevant and germane to the Motion are undisputed and can be su...
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MEMORANDUM OPINION ON DISTRIBUTION OF PROPERTY OF THE ESTATE STATEMENT OF THE CASE AND FINDINGS OF FACT Hirsch-Franklin Enterprises, Inc. (Debt- or), filed a petition under Chapter 7 of the Bankruptcy Code on January 26, 1982. On January 29, 1982, Debtor’s case was converted to Chapter 11, and this Court confirmed Debtor’s plan of reorganization on July 26, 1983. On July 24, 1984, De...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ON MOTION TO AVOID LIEN Christopher L. Vaughn and Deborah K. Vaughn (“Debtors”) filed their motion to avoid the non-possessory, non-purchase money lien of Ideal Credit Corporation (“Ideal”) on certain items on or about March 28, 1986. Ideal timely objected to the motion. The matter came before this Court for hearing on July 11, 1986. The Debtors...
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ORDER DISMISSING CHAPTER 7 CASE AS “A SUBSTANTIAL ABUSE” OF THE PROVISIONS OF CHAPTER 7 UNLESS THE CASE IS CONVERTED TO CHAPTER 13 WITHIN 10 DAYS OF THE FILLING OF THIS ORDER In her initial schedules, filed with the court on February 26, 1986, the debtor scheduled her monthly income as $1,333.00 and her monthly expenses as $580.00. The difference of $753.00, if multiplied times the 60 months, w...
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ORDER The trustee, Gary L. Morrissey, has moved for an order permitting abandonment of certain real estate surrounding and underlying the site of the estate’s refinery located in west central Oklahoma. The motion is made pursuant to section 554(a) of the Bankruptcy Code. 11 U.S.C.A. § 554(a) (West Supp.1986). From the evidence it is plain that the property is burdensome and of inconsequen...
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MEMORANDUM OPINION This matter came before the court upon the trustee’s objection to the debtors’ claim of a homestead exemption. The following facts are undisputed: 1. The Chapter 13 case was filed on September 30, 1985. 2. The debtors moved from their homestead on January 1, 1985. *216 3. A motion to convert to Chapter 7 was filed on December 31, 1985. 4. Th...
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MEMORANDUM As in Associates Capital Corp. v. Cookeville Production Credit Ass’n, 569 S.W.2d 474 (Tenn.Ct.App.1978), the issue in this case is whether a mobile home that has had its wheels removed and has been affixed to realty is subject to the Tennessee Motor Vehicle Title and Registration Law, Title 55 of the Tennessee Code. If so, the security interest of Transouth Financial Corporation (Transo...
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DECISION This case presents a novel question: should the court authorize the entry by Ernest G. Weyland and Diana Mae Wey-land (“debtors”) into the federally enacted Dairy Termination Program (“Program”)? This Program became effective pursuant to The Food Security Act of 1985 (P.L. 99-198), which was enacted on December 23, 1985. The debtors submitted their application for entry into...
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MEMORANDUM OPINION These three cases are before the Court on motions of Ethel M. Riley and Camilla Franklin (“Movants”) for relief from the automatic stay. They seek permission to try their cases in the Circuit Court of Jefferson County, Alabama seeking damages *529 for the desecration of the graves and remains of deceased relatives. 1 Movants are plaintiffs in two...
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ORDER DENYING TRUSTEE’S MOTION TO FILE CLAIM ON BEHALF OF CREDITOR The trustee’s motion (C.P. No. 22) to file a claim on behalf of Avis, who failed to file a claim before the bar date, in order that Avis may receive a distribution from what would otherwise be surplus funds in this estate, is made under 11 U.S.C. § 501(c). Although the statute merely provides: If a creditor does not timely fil...
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MEMORANDUM OPINION Since the matters pending in both of these cases involve similar facts and a common issue of law, this memorandum opinion will address jointly the objections raised to the debtor’s claim of a homestead exemption concerning certain real property in each case. The legal right to the homestead exemption is governed by N.H.R.S.A. 480:1 (Supp.1985). This is so because the Bankrupt...
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MEMORANDUM DECISION AND ORDER On October 14, 1983, General American Communications Corporation (“GACC” or “Debtor”) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code. GACC thereby invoked the automatic stay of Bankruptcy Code § 362 and frustrated the efforts of Robson & Miller (the “Robson Firm”) and WLW Funding Corp. (“WLWFC”) to enforce an order of attachment o...
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DECISION Long Island Trust Company, N.A. (hereinafter “Trust”), has moved for an order conditioning the debtor’s use of eight helicopters on the adequate protection of Trust’s security interests in these aircraft, pursuant to 11 U.S.C. § 363(e). Trust also seeks to preclude the debtor’s proposed use of certain insurance proceeds to purchase new helicopters, or in the alternative, to condi...
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MEMORANDUM OPINION CONCERNING DEBTORS’ MOTION FOR SUMMARY JUDGMENT ON APPLICATION OF COMMERCE UNION BANK UNDER § 506(b) This matter came on for hearing before this Court on July 2, 1986, in Greensboro, North Carolina, before James B. Wolfe Jr., United States Bankruptcy Judge for the Middle District of North Carolina, upon the Debtors’ Motion for Summary Judgment on the Application of Comm...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter was heard June 17, 1986, on the motion of Northern Plastics, Inc. to convert this case to one under chapter 7. Roger G. Schnitzler appeared for Northern Plastics, Inc.; Jerome M. Ott appeared for Iberis International, Inc.; Patricia Gi-beault, trustee; and David Walsh appeared for Dome Exchange. FINDINGS OF FACT 1. The debtor, ...
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This appeal raises the question of whether the trial court properly dismissed an adversary proceeding brought to recover a preferential transfer because a secured creditor appeared to be the only beneficiary. We REVERSE and REMAND. *520 I FACTS The Appellee, Manpower, Inc./California Peninsula (“Manpower”), obtained a judgment of $25,202.98 against the Debtor, En-se...
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MEMORANDUM DECISION Each of these complaints opposes the debtors’ discharges under 11 U.S.C. § 727(a)(2)(A) and (4)(A). The debtors have answered. At the joint suggestion of the parties, these two matters were tried upon a single record. The facts are simple. On February 18, 1986, fifteen days before they filed for bankruptcy, the debtors consigned household furniture and furnishings worth at...
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ORDER Gaylord Duane Miller and Shirley Mae Miller (Millers) borrowed $76,500 from Associates Financial Services of Indiana, Inc., (Associates) in the fall of 1983 to use in their business enterprises. Associates took a non-purchase money first real estate mortgage as security for the loan; Associates did not take a Uniform Commercial Code security interest in any inventory, equipment or other per...
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The matter before this court involves the confirmation of the Chapter 13 plan proposed by the debtor, Ida Hynson. By her plan, the debtor proposes to modify the interest of Norwest Financial New Jersey, Inc. (Norwest Financial), the holder of a second mortgage on the debtor’s residence which is located at 125 N. 26th Street, Camden, New Jersey. For the reasons set forth in the opinion to follow...
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*105DECISION & ORDER The plaintiffs have commenced this adversary proceeding to determine the extent and priority of their judgment liens on real property owned by David and Marilyn Cohen (hereinafter “debtors”). Jamaica Savings Bank (hereinafter “Jamaica”) holds a first mortgage on this realty. Plaintiffs assert that their lien has priority over Jamaica’s mortgage on two grounds: 1) the mortgage...
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MEMORANDUM OPINION Before the Court is the Trustee’s Motion for Summary Judgment on his Complaint to Require Turnover of Estate Property. The issue has been briefed and a hearing held thereon. Based upon our analysis of these issues, the Trustee’s Motion is denied. FACTS The Debtors in this case, operators of a coal-stripping business, executed a Demand Note to the United States...
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MEMORANDUM In this preference action the issues are: (1) whether the defendant was an insider; and (2) whether the defendant had reasonable cause to believe the debtor was insolvent. 1 I find in the affirmative on both issues. The following constitute findings of facts and conclusions of law. Bankr.R. 7052. This is a core proceeding. 28 U.S.C. § 157(b)(2)(F) (1984). I...
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MEMORANDUM OF DECISION AND ORDER RE SANCTIONS FOR BAD FAITH FILING This matter is before the court on a motion for sanctions against the debtor and its attorney in connection with the dismissal of the debtor’s chapter 11 case on the grounds of bad faith filing. All major creditors and the United States Trustee joined in the motion for dismissal. Michael Feddersen, conservator of the estat...
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MEMORANDUM DECISION I INTRODUCTION Pursuant to this Court’s order, Court-appointed examiner, Victor Ramsauer, (“Examiner”) employed the law firm of Hill & Baskin (“Applicant”), in connection with his investigation of the Chapter 11 debtors, Tighe Mercantile, Inc. (“TMI”) and Thomas Fellenz Tighe (“Tighe”). Applicant has filed its motion for allowance of fees and costs. TMI and T...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER before the Court in this Chapter 7 case is the above-captioned adversary proceeding, originally initiated by a Complaint For Damages For Conversion And For Use, filed by Chris C. Larimore, Trustee (Trustee) of the estate of Florida Airlines, Inc. (Debtor). The original Complaint named David Stempler (Stempler) and Southern Int...
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ORDER ON MOTION TO DISMISS CHAPTER 11 CASE and MOTION TO REOPEN A CLOSED ANCILLARY PROCEEDING AND TO APPOINT A CO-TRUSTEE This is a Chapter 11 case which may appear to have reached the end rather than the beginning of its long and tortuous journey through the courts not only in this country but also in the Republic of Panama. The debtor, Florida Peach Corporation of America, International...
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ORDER SUSTAINING DEBTORS’ OBJECTION TO CLAIM NUMBER 4 • This matter came before the Court on debtors’ objection to claim number 4 filed *493 by Mortgage Finance Funding, Inc. Debtors contend that the interest rate charged by Mortgage Finance under its wraparound mortgage exceeds 18 percent per annum in violation of the Florida Usury Law and is unenforceable. F.S.A. § 687.-03....
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PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW First Hartford Corporation (“FHC”), the plaintiff and debtor in possession, commenced an adversary proceeding against E.Y. Neill & Company (“E.Y. Neill”) seeking damages caused by the claimed late delivery of allegedly unmerchantable fine super Australian scoured lamb’s wool. De *481 fendant urges that the wool was not delivere...
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MEMORANDUM OPINION Presently before the Court are Fee Petitions from the attorney for the Debtor-in-Possession and the accountant for the Debtor-in-Possession. The Court finds difficulties with each of the petitions. However, since the problems are not identical, the analysis of each petition will-be handled separately. FACTS Affinito & Son, Inc., and its companion case, A & S M...
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MEMORANDUM OPINION The Creditors’ Committee requests reconsideration of this Court’s denial of reimbursement for expenses for members of the Creditors’ Committee and a fee for the secretary in the amount of $6,723.85. For this purpose, the Court accepts as fact without a hearing that these expenses were actually incurred and that the related meetings and work of the Committee had a saluto...
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MEMORANDUM OF OPINION On December 16, 1985, Marvin Neale Oerke and his wife, Shirley Ann Oerke (the Oerkes), filed a petition for relief under Chapter 11 of the Bankruptcy Code. On March 26, 1986, Movant, Lindsay Credit Corporation, filed its Motion to Compel Assumption or Rejection of three equipment leases. After hearing the testimony and considering the briefs of the parties, the Court ...
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OPINION We AFFIRM the ruling of the Bankruptcy Court, which disallowed appellant’s claim against the bankruptcy estate as untimely filed. Appellant argues that a timely informal proof of claim may be distilled from the facts of this case. We disagree and we adopt the well-reasoned opinion of the Bankruptcy Judge, which rejected these arguments. In re Kenitra, Inc., 53 B.R. 152 (Bankr.D.Or...
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MEMORANDUM OPINION Before this Court is the Trustee’s Objection To The Proof Of Claim filed by the Western Pennsylvania Teamsters and Employers Pension Fund. The Trustee acknowledges that the claim for delinquent contributions in the amount of $972.00 is in fact a priority claim pursuant to 11 U.S.C. § 507(a)(4); however, he objects to the inclusion of liquidated damages and attorney’s fe...
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OPINION CLASSIFICATION OF COLLATERAL PAYMENT OF INTEREST DURING PREFERENCE PERIOD The defendant, Production Credit Association of Mid-Michigan, formerly known as Production Credit Association of Lansing, (“PCA”), has brought this motion for summary judgment. By this motion PCA seeks to establish that its security interest in grain was properly perfected and that payments it received ...
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ORDER FOR DISTRIBUTION OF FUNDS In this Chapter 7 proceeding, the Trustee requests an order in accordance with his proposal for distribution of funds on hand. Objections to the Trustee’s proposal were filed by Old National Bank and its subro-gee Willis E. Campbell (ONB). Hearing on the matter was held on July 8, 1986. By prior orders of this Court, the real and personal property of t...
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This matter presents the issue of whether property that is subject to junior and senior liens not disputed on this motion may be sold pursuant to 11 U.S.C. § 363(f) (1984) by a debtor-in-possession free and clear of such liens for less than the aggregate amount of the liens over the objection of the junior lienholders. I. Among the creditors of Beker Industries Corp. (“Beker” or the “...
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MEMORANDUM OPINION This adversary proceeding was brought by Bowers Distillery, Inc., a creditor, to determine whether the interest of the debt- or-defendant, Aileen R. Kragness, arising from a Hawaiian testamentary trust, specifically, the JLP Robinson Trust, should be included in the bankruptcy estate herein, to compel the debtors to pay the debt owed to the plaintiff-creditor and/or to ...
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OPINION The query posed in the case at hand is whether we should hold the Internal Revenue Service (“IRS”) in civil contempt for having erroneously sent the debtors a notice of overdue prepetition taxes during the pendency of the debtors’ bankruptcy case. For the reasons set forth below, we will hold the IRS in contempt. The facts of this controversy are as follows: 1 The debtors filed a pe...
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MEMORANDUM DECISION RE: MOTION TO REOPEN CLOSED CASE AND AVOID LIEN Charles A. Ricks (“Ricks”), the debtor in a closed Chapter 7 case, has moved the Court to reopen his case and to avoid the lien of ITT Financial Services, formerly known as Aetna Finance Company (“Aet-na”), on his household furniture. Aetna opposes this motion, claiming that the debt- or should not be permitted to reopen his ...
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*441 OPINION This Opinion explains why this Court has confirmed the Debtor’s proposed Chapter 13 Plan notwithstanding objections raised by Manhattan Life Insurance Co. (“Manhattan”). 1 I. Manhattan’s first argument is that this Court, as a precondition to confirming the Debtor’s Plan, should first have resolved (a) Manhattan’s motion to dismiss this case or convert i...
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ORDER ON MOTION FOR PRELIMINARY INJUNCTION THE MATTER under consideration in this Chapter 11 case is a Motion for Preliminary Injunction filed by 1600 Pasadena Offices, Limited (Debtor), a Florida partnership. The Debtor seeks an order from this Court prohibiting the City of South Pasadena, Florida (City) from exercising its regulatory powers by revoking a building permit previously issued by t...
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MEMORANDUM AND ORDER The trustee has filed a complaint seeking to recover a preferential payment to Paisa-no Automotive Liquids, Inc. under 11 U.S.C. § 547(b). The parties have presented the case to the Court on stipulated facts. The sole issue in dispute is whether Paisa-no may set off the amount of an alleged subsequent advance to the debtor against the amounts it has received in an oth...
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Reasons for Judgment This matter comes before the court upon the complaint of the debtor herein, seeking a determination that certain court-ordered “alimony” was, in fact, a property settlement, or alternatively, a reduction of that award to a “reasonable” amount. After trial, the court requested further briefing on certain issues. Having considered the evidence, and the briefs and arguments ...
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MEMORANDUM OF DECISION (Motion for Leave to File Proof of Claim) The United States of America seeks leave to file a late proof of claim. The issue before the court is, in a case involving an individual debtor where the United States does not receive official notice from the Clerk of this court of the bankruptcy filing, and where there is no proof of actual notice received by a respon...
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MEMORANDUM OF DECISION [“Whether a tax has been ‘incurred by the estate’ is not always easy to determine.” Collier on Bankruptcy, 15th Ed. pp. 503-34 (1986)] Montgomery County, Maryland, has filed a request that this court allow as an admin *420 istrative expense the 1985 personal property taxes (including interest and penalties) assessed against the debtor in possession pursuant to 11 ...
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DECISION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS COMPLAINT At all times relevant herein the debtor, Deak & Co., Inc. (“Deak”) and its affiliates, were heavily engaged in the trading of international currency and gold. When Deak filed its Chapter 11 petition under the Bankruptcy Reform Act of 1978 (“Code”) in 1984, creditors and other parties in interest worldwide were a...
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DECISION AND ORDER In response to several motions to vacate the automatic stay provided by 11 U.S.C. § 362(a) (1978), Waterman Steamship Corporation (“the Debtor”) moved this Court on June 7, 1986, pursuant to 28 U.S.C. § 157(b)(5), for a transfer to the Southern District of New York of seventeen proceedings involving claims for personal injury and wrongful death. I. The Debtor ...
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OPINION In a case of first impression in this district, the issue at bench is whether we may grant a chapter 13 debtor a hardship discharge notwithstanding the decease of said debtor. For the reasons outlined below, we will grant the debtor a hardship discharge pursuant to 11 U.S.C. § 1328(b) of the Bankruptcy Code (“the Code”). The facts underlying this case are as follows: 1 The debtor fi...
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MEMORANDUM OPINION MOTION FOR ACCOUNTING On May 17, 1985, the United Steelworkers of America (“United Steelworkers”) petitioned for an accounting. Judge Gibson died in early June before he could set this petition for a hearing. A hearing was set for July 31, 1985, which was continued until August 28, 1985. On August 28,1985 the Court conducted a hearing and ordered an accounting by t...
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MEMORANDUM OPINION This matter comes before the Court on the plaintiff’s Second Motion for Summary Judgment seeking to have the debt owed to it by the debtor, Everett R. Bosselait (“Bos-selait”), declared nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(2) and (a)(4). Bosselait appeared, by counsel, in opposition to the motion by the plaintiff, Standex International GmbH, (“S...
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MEMORANDUM OPINION This matter is before the Court on the debtors’ objection to the Third Amended Proof of Claim of Vinco, Inc. (“Vinco”) for attorneys’ fees, costs, and expenses incurred both pre- and post-petition. Vinco holds an interest-bearing note for $459,-000.00 executed by the debtors on May 23, 1979. The note, secured by a deed of trust on the debtors’ real property located in t...
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MEMORANDUM DECISION The trustee seeks $12,340 from the debtors under 11 U.S.C. § 542(a). This sum was received by the debtor husband in August 1985, one year after bankruptcy, August 24, 1984, under a Deferred Compensation Plan provided by his former employer. The debtors and the administrator of the Plan have answered and the matter was tried on July 8. Section 542(a) requires turnover to th...
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MEMORANDUM DECISION Creditors Horman and others have moved 1 to reopen this case for the purpose of administering for the benefit of all creditors, a previously “unadministered” asset *679 consisting of the debtors’ lawsuit against the Church of Jesus Christ of Latter-Day Saints (LDS) and Brigham Young University (BYU). This suit was pending in the Orange County Superior Court of California...
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OPINION DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING NUNC PRO TUNC APPLICATION The law firm of Kasen and Kasen, former counsel to the debtor-in-possession in the above-captioned matter, seeks compensation for services rendered to the estate. No court order authorizing applicant’s employment was entered in the case. The issue presented is whether nunc pro tunc court approval may be entered...
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*401 MEMORANDUM DECISION Don’s Electric, Inc. (“Don’s”), a prime contractor on a number of construction projects, filed its chapter 7 petition in bankruptcy on September 7, 1982. The plaintiff, City Bank & Trust Co. of Portage (“the bank”), made several business loans to Don’s prior to bankruptcy. A perfected security agreement grants the bank a first security interest in Don’s “...
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MEMORANDUM OPINION AND ORDER This case comes before the Court on the Complaint of the Trustee to avoid a preferential payment from the Debtors to the United Bank of Ogle County (Bank). The Trustee, Attorney Stephen G. Balsley, is representing himself. The Bank is represented by Attorney Theodore Liebovich. The following Memorandum Opinion and Order shall represent findings of fact and conclus...
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OPINION This matter comes before the Court on three motions brought by the Defendants prior to the filing of an answer. The first motion is for the admission pro hac vice of a number of members of the firm of Buchalter, Nemer, Fields, Chrystie & Younger of California. They are John Allen Dito, Esq.; William Sehon Rose, Jr., Esq.; Kenneth Hung Quon Dang, Esq., and Michelle Gorga...
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ORDER The matter before this court is a Motion for Stay of Sheriff’s Sale Pending Appeal, *394 filed July 21, 1986, by the debtors, Richard and Lee Ann Kerzman. The debtors are appealing this court’s order of June 3, 1986, dismissing the debtors Chapter 11 petition filed on May 5, 1986. The procedural background and facts of this case are as follows: The debtors filed their original Chapt...
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MEMORANDUM OPINION AND ORDER The issue before the Court is confirmation of the Debtor’s Chapter 11 Plan. The Debtor, Star City Rebuilders, Inc., filed its Chapter 11 petition with the Court on October 4, 1985. The Debtor's amended Chapter 11 Plan proposes a payment of $432,000.00 over a period of five years and delineates eight classes of creditors. Under the Plan, all administrative...
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MEMORANDUM OPINION This matter comes before the court on the objection of James E. Whitmire, Jr., the Trustee, to the claimed exemption of Carol L. Sundeen, the Debtor, in an ERISA qualified pension plan. On February 25, 1986, the Debtor filed a voluntary petition under the provisions of Chapter 7 of the Bankruptcy Code. In her petition the Debtor claimed as exempt her interest in a ...
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MEMORANDUM AND DECISION A motion to convert the debtor, Security & Energy Systems, Inc., was filed by the Internal Revenue Service. The IRS seeks to have the Court order the debtor converted from a Chapter 11 debtor to a Chapter 7 debtor under the authority of 11 U.S.C. § 1112. The motion was heard on June 23, 1986. At the time of the oral argument, the debtor suggested that it would prop...
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MEMORANDUM This is an adversary proceeding in which the Fentress County Bank disputes the dis-chargeability of its debt in the original amount of $45,000.00. 11 U.S.C. § 523(a)(2)(B). The Bank contends that the debtor defendant made materially false representations as to his financial condition in the form of a financial statement dated March 31, 1981, and in the form of a letter addresse...
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MEMORANDUM OPINION On March 14, 1984, trustees of the United Mine Workers of America, 1950 Pension Trust, 1974 Pension Trust and 1950 Benefit Plan and Trust (1950 Benefit Trust), collectively the “Trusts” filed an involuntary petition under the provisions of chapter 7 against Garland Coal & Mining Company (Garland). On April 3,1984, Garland filed an answer denying the allegations of the p...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on the application of Grayhall Resources, Inc. (“Debtor”) to assume a certain mining lease entered into by a predecessor in interest of the Debtor with Judith Gold Corporation (“Judith Gold”, or “Lessor”). Pursuant to the terms of the lease, the Lessee was granted a lease of the surface and subsurface and all minerals, except oi...
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MEMORANDUM OPINION The dispute here arises on two separate motions: a motion to dismiss filed pursuant to Bankruptcy Rule 7012 and Federal Rule of Civil Procedure 12(b)(6) and a motion for summary judgment pursuant to Bankruptcy Rule 7056 and Federal Rule of Civil Procedure 56. The.underlying complaint is an action to avoid and recover a preferential transfer of property pursuant to secti...
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The trustee commenced this adversary proceeding against the principal of the debtor seeking recovery of the sums of $14,750.00, the fair market value of machinery and equipment allegedly transferred in violation of section 548 of the Bankruptcy Code, 11 U.S.C. § 548, (“Code”) and $7,736.01, the amount of post-petition transfers allegedly made in violation of section 549 of the Code, plus intere...
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MEMORANDUM-DECISION AND ORDER Pursuant to 11 U.S.C. § 522(1) (“Code”), the Trustee has objected to a claimed exemption of the Debtor, Frederick W. Abdo (“Debtor”). The Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(B) and § 1334. Under the terms of an estate settlement, Debtor is to receive monthly mortgage installments; in his affidavit of March 6, 1986, Debtor states there are app...
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DECISION AND ORDER This matter came to be heard on the complaint of Mona Berkowitz that the debt- or owes her a non-dischargeable $63,000 debt for commissions she paid and options trading losses she suffered, because the debtor defrauded her while acting as her financial consultant. The court finds that the debtor defrauded Ms. Berkowitz and obtained commissions for himself as a result of his f...
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OPINION The issue for resolution in this case is whether the recording of two judgment notes given by the debtors to close relatives, one year prior to bankruptcy, may be set aside under Pennsylvania’s Fraudulent Conveyance Act, Pa.Stat.Ann. tit. 39, § 357 (Purdon 1954), on the basis that the transfers were made with intent to defraud. For the reasons set forth herein, we conclude that the transfe...
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OPINION The debtors received a chapter 7 discharge some years ago. While their personal liability arising out of a mortgage on their home has been discharged, arrearag-es on their mortgage have since accrued and the issue confronting us is whether they may propose a confirmable plan under chapter 13 to satisfy those arrearages. We conclude that they may. *91 The facts of thi...
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Heard on April 10, 1986 on Robert Gaudio’s motion to dismiss the above-captioned adversary proceeding (which was removed to this Court from the Kent County Superior Court — C.A. No. 84-170), or, in the alternative, for transfer of venue to the United States Bankruptcy Court for the Middle District of Florida, Jacksonville Division. 1 See Bankruptcy Rule 7087. 2 Plaintiff Angelina Gallucci, ...
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ORDER SUSTAINING OBJECTIONS TO SALE OF RED BUG POINTE PROPERTY AND DENYING DEBTOR’S MOTION TO TRANSFER LIENS TO OTHER SECURITY On April 10, 1986, debtors filed a Report and Notice of Sale expressing their intent to sell a section of their Red Bug Pointe property to Brashk, Ltd., for $685,000, which sale would be consummated if no written objections were received within 20 days from the da...
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ORDER ON MOTION TO DISMISS THE MATTER under consideration in this Chapter 7 adversary proceeding is a Motion to Dismiss filed by the Defendant, George T. Hadley, Trustee of this Chapter 7 estate. The Trustee alleges, first, that the Complaint fails to state a cause of action for which relief can be granted and, second, that the Complaint was filed in violation of the automatic stay imposed by 1...
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ORDER This matter comes before the Court on debtor’s motion to avoid a judicial lien which impairs the debtor’s statutory exemption pursuant to K.R.S. 427.160. This Court entered an Order on April 7,1986, 60 B.R. 188, granting the debtor fifteen (15) days in which to amend his previous motion and schedules and claim the garnished wages as exempt under 11 U.S.C. Section 522(f) and K.R.S. 427.160...
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MEMORANDUM OPINION RE MOTION FOR SEQUESTRATION OF RENTS AND PROFITS BY FEDERAL LAND BANK OF OMAHA This motion for sequestration of rents and profits by Federal Land Bank of Omaha (Bank) was submitted on an agreed statement of facts, oral argument and written briefs, the last of which was received by the Court on April 23, 1986. Appearing on behalf of the debtors were Steven Wolf and Terry...
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On June 13, 1986 Coastal Tank Lines, Inc., a subsidiary of Coastal Industries, Inc., filed an adversary proceeding, being Case No. 586-0186, in which they filed a petition to sell rolling stock equipment and regulatory rights of the said debtors. This Court did on June 13, 1986 enter an order shortening the time to answer the complaint to said adversary proceeding and set the matter for hearing...
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MEMORANDUM OPINION Presently before the Court is a Motion To Abandon Property of the estate brought by Golden Isles Food Equipment Company (hereinafter “Golden Isles”), a creditor in this case. The Trustee has objected to this abandonment, alleging that Golden Isles’ purchase money security interest in the subject property was improperly perfected, thereby subordinating its interest to that of ...
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MEMORANDUM OPINION AND ORDER By application dated the 9th day of May, 1986, Daniel E. O’Connell, Trustee, requests the appointment of an interim trustee pursuant to 11 U.S.C. § 303(g) and 11 U.S.C. § 701 in the involuntary bankruptcy pending against James- Investment Fund No. 1, Ltd., Bankruptcy No. 84-05153. Daniel E. O’Connell’s application states: “1. Daniel E. O’Connell, Movant, is the duly a...
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MEMORANDUM DECISION Marathon Home Loan Company (“Marathon” ) holds two trust deeds on real property belonging to debtor Mary Ramirez (“Ramirez”), which secure two notes in the amount of $49,000 and $12,000. Ramirez executed the notes in late 1984. Both notes mature within one year of February 7, 1986, the date Ramirez filed her Chapter 13 petition. The notes carry interest rates of 18% and 19%,...
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MEMORANDUM OF OPINION RE MOTION TO REJECT EXECUTORY CONTRACT STATEMENT OF FACTS In August, 1985, Tia Carrere (“Carrere”) entered into a personal services contract with American Broadcasting Company (“ABC”) whereby she agreed to perform in the television series “General Hospital” from that time until August, 1988 (“ABC Contract”). Under the terms of the contract, Carrere was guarantee...
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*50 ORDER ON EXEMPTIONS Two judgment creditors have objected (C.P. Nos. 8 and 11) to the debtor’s exemption claims (C.P. No. 7) on two items of personal property. The objections were heard on July 8. The objections are sustained and the exemptions are disallowed. The property in question is (1) a New Jersey purchase money mortgage dated April 9, 1981 to the debtor and his pr...
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ORDER DENYING CONFIRMATION AND CONVERTING CASE TO CHAPTER 7 A confirmation hearing was held June 23 on this debtor’s Restated Amended Plan of Reorganization (C.P. No. 64). The plan was rejected by a creditor who holds a judgment in the amount of $3.5 million. The debtor acknowledges that the plan cannot be confirmed without the support of these creditors. (C.P. No. 70). At the confirmation hearing...
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ORDER This matter came on to be heard on the Debtors’ petition for reimbursement of crop expense. The facts are not in dispute and were orally stipulated to as follows: On May 1, 1985, the Farmers Home Administration (Farmers) loaned the Debtors $100,000.00 and perfected a security interest in Debtors’ 1985 crop. The crops were planted in the spring of 1985. On October 21, 1985, the Debtors f...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS .OF LAW AND ORDER Vincent Nemeti (“Debtor”) filed his petition for relief under Chapter 11 of Title 11 U.S.C. (“Code”) on March 18, 1985. On September 5, 1985, Debtor filed his adversary complaint against Seaway National Bank (“Seaway”) and Amlea (New York), Inc. (“Amlea”), seeking to set aside and invalidate a sale of Debtor's interest i...
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MEMORANDUM OPINION This is an adversary proceeding brought by James Oliver Carter, the chapter 7 trustee for the estate of Judy M. Carra-way, to avoid an unperfected lien on a mobile home pursuant to 11 U.S.C. § 544(a) and to recover two prebankruptcy payments as preferential transfers pursuant to 11 U.S.C. § 547(b). The trial was held in Raleigh, North Carolina on July 7, 1986. JURISDICTION ...
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ORDER DENYING PLAINTIFF’S MOTION FOR REHEARING AND CLARIFYING ORIGINAL ORDER THIS CAUSE came on to be heard upon Plaintiff’s Motion For Rehearing and Clarification of Order Entered April 10, 1986. Upon consideration of counsels’ argument and memoranda, it is ORDERED that: 1. Plaintiff’s request for a rehearing as to the determination of the validity of Defendants’ Lane Aerial Platforms and *156Equ...
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MEMORANDUM OF OPINION AND ORDER Plaintiff filed the above-styled adversary complaint to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4). It is before the Court on Plaintiff’s Motion for Summary Judgment. The Court finds this matter to constitute a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). The Court had previously requested additional briefs from the P...
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MEMORANDUM AND DECISION The debtor, STL Transport, Inc., has brought a motion objecting to a proof of claim filed by the New York State Department of Taxation and Finance. The claim was filed by the Department after it had conducted an audit of the debtor and after subsequent discovery by both parties. The basis of the claim in question is a tax assessment against the debtor for a failure to pay ...
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OPINION The debtor moves to reclassify to general unsecured status that portion of the claim filed by the City of New York Department of Finance which seeks priority treatment for pre-petition interest associated with New York City’s General Corporation and Commercial Rent or Occupancy Taxes. The debtor relies on the authority of In Re Razorback Ready-Mix Concrete Co., 45 B.R. 917 (Bkrtcy.E.D.Ark....
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MEMORANDUM OPINION This matter came before the court upon a trial in the above-captioned adversary proceeding. The trustee was represented by John W. Weil of Ransom, Blackman & Simson, Portland, Oregon. The defendant was represented by David A. Foraker of Greene & Markley, P.C., also of Portland, Oregon. The complaint alleges that the defendant improperly received $6,000 in post-peti...
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MEMORANDUM OPINION This matter came before the court upon an application for an order authorizing the appointment of Boies and O’Rourke of Los Angeles, California as attorneys for the debtor in possession. The application was filed with the court on February 18, 1986. The affidavit accompanying the application indicates that Mr. Boies, of the applicant firm, was hired by the debtor in possessio...
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*660 MEMORANDUM DECISION Jack M. Innis (“Debtor”) scheduled his individual retirement account (“IRA”) as exempt from property of the estate pursuant to 11 U.S.C. § 522(b)(1) and California Code of Civil Procedure (“C.C.P.”) § 703.-140(b)(10)(E). The Chapter 7 trustee opposes. FACTS On March 25, 1986, the Debtor filed his petition for Chapter 7 relief. Under § 522(Z) the Debtor is required...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENTS SUSTAINING COMPLAINT FOR DENIAL OF DISCHARGE AND DENYING COMPLAINT FOR A DECREE OF NONDISCHARGEABILITY The above styled actions, consisting of an objection to discharge upon the principal ground of debtors’ failure to disclose in the schedules the granting of an additional mortgage on their residential real property a scant four day...
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*344 MEMORANDUM OPINION On the 12th day of March, 1986, came on to be heard the Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the Alternative, to Abstain under 28 U.S.C. § 1334(c), filed in the above styled and numbered Adversary Proceeding. After having heard the arguments of counsel and having reviewed the pleadings and briefs on file, as well as ...
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OPINION Hartford Accident & Indemnity Company and Hartford Fire Insurance Company (hereinafter “Hartford”) seek to except their judgment for an agency balance of $22,425.11 against the Debtor, Harold Britt McCraney, from his discharge under Section 523(a)(4) of the Bankruptcy Code. That section provides: A discharge ... does not discharge an individual debtor from any debt— [[Im...
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MEMORANDUM OF DECISION ON MOTION FOR DETERMINATION OF SECURED STATUS AND RELIEF FROM STAY ISSUE The issue presented in this contested matter is whether a notice of lis pendens filed by Barbara J. Ottaviano (movant) at the commencement of a marriage dissolution action against property owned by the debtor constitutes a fraudulent transfer. No evidentiary hearing has been held and the f...
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*336 INTEREST ON OVERSECURED TAX CLAIMS The debtor, Angelo Russo, failed to pay to the Commonwealth of Massachusetts, both taxes withheld from his employees’ wages and income taxes for the years 1979, 1980, 1981 and 1982. The Commonwealth made demand for payment, and recorded Notices of Massachusetts Tax Lien with the appropriate Registry of Deeds and the Secretary of State. The ...
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MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT On June 19, 1984, TMH Corporation, d/b/a Holbrook’s (“TMH”) filed a volun *933 tary petition under Chapter 11 of the Bankruptcy Code and continued as a debtor-in-possession. Thereafter, on or about September 21, 1984 TMH instituted this adversary proceeding seeking (i) a declaratory judgment to determine the validity, priority and extent of a...
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MEMORANDUM OPINION The following will supplement the findings and conclusions set forth in the record of the hearings held on March 11, 1986 and March 17, 1986 at the conclusion of which this Court approved the Disclosure Statement for the Debtors’ Second Amended Joint Plan of Reorganization (“Disclosure Statement”), and as further set forth in the record of the hearings held on April 16,...
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*654 MEMORANDUM OPINION AND ORDER This adversary proceeding comes before the Court upon the complaint of Ozark Production Credit Association (movant) objecting to discharge of a portion of the debt owed by debtors to movant. The facts reveal that debtors filed their Chapter 11 petition in August of 1983. The proceedings were converted to Chapter 7 on June 12, 1985. Movant was granted an exten...
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ORDER The Debtor Robert Manners was married to June Marie Manners and divorced by final Decree of Dissolution dated November 27, 1984, in the Coos County Circuit Court of the State of Oregon. The Plaintiff, as former wife, filed a complaint pursuant to Bankruptcy Rule 7001 seeking a determination that attorneys fees and court costs in the sum of $5,641.95 and $506.75 awarded to the Plaintiff ar...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion To Dismiss filed by the Defendant in the above entitled adversary action. The Court conducted a Pre-Trial conference in this 'case, at which the Court afforded the parties the opportunity to file any arguments they wished the Court to consider relative to its jurisdiction in this case. The parties have filed such argum...
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MEMORANDUM OF DECISION RE: MOTION FOR RECONSIDERATION, OBJECTIONS TO CLAIMS The controversy presently before the court arises out of objections filed by the Chapter 13 debtor, Dennis Carmen Fox (Fox or debtor) to proofs of claim filed on behalf of Huntington National Bank (Huntington) and Bank One of Ashland (Bank One). All parties were given an opportunity to be heard at hearings duly co...
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MEMORANDUM OPINION This cause is before the Court on competing Motions for Summary Judgment filed by Plaintiff/Debtors, FREDERICK and CAROL LONGLEY (“Debtors”), and by Defendant, UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE (“the Government”), in the above-captioned adversary proceeding. For the reasons set forth below, the Court grants summary judgment in favor of the Government. ...
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MEMORANDUM Plaintiffs seek to reverse a prepetition transfer of their promissory note by Southern Industrial Banking Corporation (SIBC) to First Tennessee Bank (FTB). Plaintiffs contend the transfer was part of a fraudulent scheme designed to defeat their setoff rights, 11 U.S.C.A. § 553 (West 1979), and that FTB knew or should have known that the transfer involved fraud. Defendant Bank of Commerc...
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Because this debtor has obdurately continued for over six months to disregard orders of this Court requiring it to turn over to the trustee money that belongs to the estate, we are now left with no choice but to hold the debtor in civil contempt and to attempt to coerce compliance with our turnover orders. I The debtor, L.H. & A. Realty, Inc., owned and managed the New Avenue Hotel in...
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MEMORANDUM DECISION AND ORDER INTRODUCTION The Trustee of the debtor corporation, Olympic Foundry Co. (“Debtor”), com *325 menced this adversary proceeding to recover $37,283. transferred to the defendant, State of Washington (“State”), within 90 days of the filing of the bankruptcy petition. The State has moved for partial summary judgment, contending that $18,062. of t...
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AMENDED OPINION The State of California appeals a decision disallowing as late filed a claim for sales and use taxes. We affirm. *116 STATEMENT OF FACTS The debtor filed a Chapter 7 bankruptcy on March 2, 1982. Thereafter, the court set a date for the meeting of creditors under Bankruptcy Code § 341(a) and set a date for filing proofs of claim as October 28, 1982. On September 13, 1982 ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The debtor, Jonas Blair, Jr., commenced this case by a petition filed under title 11, chapter 13, United States Code, on March 6, 1986, and the case remains pending under said chapter. The above-styled adversary proceeding was commenced by the debtor seeking a determination of the scope of the automatic stay provided by 11 U.S.C. § 362(a) and the except...
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The Co-trustees’ motion to compel production of documents and answers to deposition questions came on regularly for hearing on April 21, 1986. Michael Goldstein appeared on behalf of movants. Alan Tip-pie appeared on behalf of respondents. At the conclusion of the hearing, the court held that the real party in interest, Thomas D. Carter (“Carter”), was entitled to respond to the motion, and tha...
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OPINION Corporate Property Investors’ (“CPI” or “landlord”) motions for relief from stay and to deem the subject lease rejected came on regularly for hearing on May 28, 1986. Thomas N. Jacobson (“Jacobson”) appeared on behalf of the moving party. Roger A. Saevig (“Saevig”) appeared on behalf of the debtor and respondent Chan-del Enterprises, Inc. (“Chandel” or “debt- or”). At the conclusi...
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OPINION AND ORDER The motion of the United States on behalf of the Internal Revenue Service (“IRS”) for reconsideration of this Court’s Judgment Order entered on May 12,1986 is DENIED. The motion raises no new issues that could not have been or were not raised at the time of the hearing held on March 25, 1986. IRS has had more than ample opportunity to state its case. Litigation must...
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*1011 MEMORANDUM OPINION The debtors in this case filed a Chapter 11 reorganization petition with this court on January 18, 1985. They maintain a cattle and hog operation and have continued the same during the course of these Chapter 11 proceedings. The debtors filed their plan on July 17, 1985 and amended the same on November 22, 1985 after various hearings before the court. The court on J...
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MEMORANDUM AND ORDER The matter before the court is a Motion for Confirmation of the Debtor’s Plan pursuant to section 1129(b)(1) of the Bankruptcy Code. The debtor, Milton Martin Retz-laff, (DEBTOR), filed his Chapter 11 petition on March 5, 1984. Both his plan and disclosure statement were filed on October 24,1985, with the disclosure statement ultimately approved on March 28, 1986. Productio...
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MEMORANDUM OF DECISION The matters before the court are two adversary proceedings that were consol- *805 Mated for trial. The issues involved include a complaint for turnover of property of the estate, for money damages incurred by conversion of estate property, and counterclaims for reclamation. A motion to compel assumption or rejection of an exec-utory contract has also be...
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MEMORANDUM OPINION Two issues are raised by the present motion for summary judgment, both having to do with the effect of a bankruptcy filing on statutes of limitations. The more novel question presented is whether the pendency of a bankruptcy proceeding for several months has the effect of prolonging a state statute of limitations for an equivalent length of time, after the bankruptcy is...
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ORDER H & H Lumber Company filed a complaint to determine dischargeability of its debt in the alleged sum of $26,025.98 under Section 523 of the Code. After answer by the Debtor, trial of said cause was held on May 23, 1986. Proposed Findings of Fact and Conclusions of Law have been filed by the respective parties. H & H Lumber is engaged in the sale of building materials and supplie...
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OPINION AND ORDER Before the Court is a motion filed by JePhunneh Lawrence for reconsideration of this Court’s Order dismissing this case. The order of dismissal was based on the fact that, as stated in the order itself, “this case was filed as one case by at least two separate legal entities, contrary to law (compare 11 U.S.C. §§ 301 and 302) ...” In the next-to-last paragraph of hi...
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MEMORANDUM ON MOTION TO Air LOW AMENDMENT TO INFORMAL PROOF OF CLAIM The issue presented in this core proceeding is whether Associates Financial Services of Massachusetts, Inc. (“AFS”), an unsecured creditor, may amend a previously filed motion and thereby satisfy Bankruptcy Rule 3002, which requires an unsecured creditor to file a proof of claim in order to have that claim allowed. ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER before the Court in this Chapter 11 case is an adversary proceeding which was initiated by a Complaint, filed by Bob Rigby, Inc. (Debtor) against Eagle Crusher Company, Inc. (Eagle), alleging breach of implied warranty, breach of express warranty, and negligent design of a portable rock crushing machine (machine). In due course...
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*5FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE: MOTION TO DISMISS AMENDED COMPLAINT On September 12, 1985, Marvelene Crawford (“Plaintiff”) filed an Amended Complaint. Thomas Joseph Merino (“Defendant”) filed a Motion to Dismiss the Amended Complaint on October 18, 1985. A hearing was held on February 13, 1986 on the Motion to Dismiss, at which time Terry G. Opperman, Esq., appeared on behalf...
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ORDER This matter is before the Court on a Motion to Make -Additional Findings and Amend Judgment filed by the Federal Land Bank of Louisville (Bank). Hearing on the motion was held on May 7, 1986, and the matter was taken under advisement. *315 Background, On September 4,1984, the debtors filed a Chapter 11 bankruptcy proceeding. On November 13, 1984, the Bank filed a motion to lift st...
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MEMORANDUM OPINION AND ORDER ALLOWING FEES AND COSTS TO SECURED CREDITOR This case is before the court on the request for allowance by Metropolitan Life Insurance Company for an allowance of a total of $90,108.60 in attorneys fees and expenses claimed necessary for the protection of its first mortgage interest in the debtor’s principal asset, a major office building located in Dubuque, Io...
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MEMORANDUM OF DECISION This adversary proceeding is before the Court upon the joint motion of the debtor and Official Unsecured Creditors’ Committee for partial summary judgment with respect to certain individual defendants in the above captioned adversaries. Hereafter the Court will refer to “the Committee”, “the debtor” and “the Kirklands” as such and the various purchasers of working i...
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MEMORANDUM OF DECISION Prior to this individual Chapter 7 filing, the Internal Revenue Service (“IRS”) levied upon debtor’s bank account. The notice of the lien was filed in the wrong county. After the IRS received debtor’s funds, it filed a proper notice of lien a few days prior to debtor’s Chapter 7 filing. The question presented is whether the Chapter 7 trustee prevails over the Intern...
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MEMORANDUM OPINION AND ORDER This Chapter 7 bankruptcy hearing arises over a simple appearing but rather complex issue as to whether two debtors who are husband and wife can both claim simultaneously the head of family exemption. The facts are quite simple. Debtors filed their voluntary petition in Chapter 7 on January 21, 1986, filed their schedules (including exemptions) on February 21, 1986,...
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OPINION The trustee of the estate of Antonio Ca-sale, the plaintiff herein, is moving to dis*900miss a counterclaim interposed by the debt- or-defendant, Antonio Casale. She seeks such relief on the ground that the counterclaim, which asks damages against her personally, cannot be asserted in a proceeding brought by her in her representative capacity. She contends that the counterclaims are “impro...
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OPINION The issue for resolution is whether we should award counsel fees to a prevailing plaintiff on the basis that the primary defendant unreasonably protracted the litigation at hand. On the grounds set forth below, we will award the plaintiff’s counsel, fees and costs in the amount of $1,283.80. The facts of this case are as follows: 1 Several years ago Mary N. Snellba...
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SUPPLEMENTAL FINDINGS ON APPEAL On remand from the United States District Court for the District of Rhode Island. This case, which has developed into a classic example of how creditors may be abused through manipulation of the judicial process, was commenced by the filing of a Chapter 13 petition by Alfred Gomes in February 1981. After hearing on a motion to convert filed by a secured creditor, Ma...
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MEMORANDUM OPINION INCLUDING FINDINGS William John Doyle and Margaret Doyle, creditors of the above-named debtors filed a motion to extend time within which to object to the dischargeability of the debtors’ obligation to them. The Doyles also filed a motion to dismiss the Chapter 7 case, No. 282-00254. The parties stipulated to the facts, filed memos and the case was submitted to . the Court. The ...
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MEMORANDUM AND ORDER The debtors have filed a complaint pursuant to 11 U.S.C. §§ 522(h) and 547(b) seeking to recover a $1,236.80 1 payment made by the debtors to Glenwood Medical Group (“Glenwood”). 2 Glenwood has moved this Court to dismiss the complaint on the grounds the debtors lack standing and in addition may not avoid the payment as a preference. This is a core proceeding under 28 U...
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MEMORANDUM The matters before the Court are based upon two adversary complaints which deal with claims to the same parcel of real property. In one complaint, the Crystal City State Bank has asked to establish a secured claim against the Debtors’ real estate, and to determine that the Debtors’ obligation in connection with the real estate is not dischargeable. The second complaint was filed on b...
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MEMORANDUM OPINION This adversary proceeding was brought by the trustee to recover preferences pursuant to 11 U.S.C. 547. At the pre-trial conference, the parties agreed that there was no material dispute as to the facts and therefore submitted memorandum briefs in support of their respective positions. The defendants are medical providers. The debtor, Mrs. Caraway, received medical and hospitali...
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DECISION Before the Court is an application of the Brooklyn Navy Yard Development Corporation (“BNYDC”), dated June 9, 1986, seeking various forms of relief arising out of the existing landlord-tenant relationship between it and Coastal Dry Dock & Repair Corp. (“Coastal” or “Debtor”). Pursuant to order to show cause dated June 11,1986, the matter came on for a hearing on June 17, 1986. On...
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Two of the three defendants in this adversary proceeding namely, Mundo Developers, Ltd. (“Mundo”) and St. Paul Fire & Marine Insurance Co. (“St. Paul”), have moved for an order of dismissal pursuant to Fed.R.Civ.P. 12(b) on the ground that this court lacks subject matter jurisdiction, or in the alternative, for mandatory abstention pursuant to 28 U.S.C. § 1334(c)(2). The plaintiff Allied M...
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MEMORANDUM OPINION In his Complaint Under U.S.C. § 523(a)(3), Stephen Landers shows in pertinent part: “2. Plaintiff is an individual judgment creditor of Defendants by virtue of a final judgment dated March 27, 1984. A true and correct copy of the judgment is attached hereto as Exhibit “A” and by this reference incorporated herein verbatim. 3. Defendants filed a voluntary petit...
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ORDER This matter is before the court on an objection by Joan Rorabaugh (hereinafter “the debtor”) to a pre-petition attorney fee claim filed in this Chapter 11 case by Keith A. Greiner (hereinafter “Greiner”) and an objection by the U.S. Trustee to Greiner’s request for administrative fees and expenses pursuant to § 503(b). *625 The debtor objects to the unsecured claim of ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT This adversary proceeding came on before the undersigned United States Bankruptcy Judge upon the motion of Plaintiff (hereinafter “the Trustee”) for summary judgment under FED.R.CIV.P. 56. The Trustee appeared by his attorneys, Bryan N.M. Anderson and Michael W. Haag (on the brief). Defendant Robert E. Olson...
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MEMORANDUM OPINION AND ORDER This adversary proceeding was tried before the court on the plaintiff’s contention that a certain portion of a divorce decree between the parties constitutes nondis-chargeable “alimony, maintenance, or support” within the meaning of § 523(a)(5) of the Bankruptcy Code. The plaintiff ex-wife and the debtor-defendant were divorced by virtue of a divorce decree entered ...
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MEMORANDUM OF DECISION CONCERNING DEFENDANTS’ MOTION TO DISMISS OR FOR SUMMARY JUDGMENT AND PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to 11 U.S.C. § 547, the Plaintiff/Debtor-in-Possession, COMMODITY EXCHANGE SERVICES COMPANY (CXS), attempts to recover as a preferential transfer the amount of $846,500.13 paid by CXS to THE COTTON BOARD (Board) in two installments within 90 da...
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ORDER ON DEBTOR’S MOTION TO REOPEN CASE, PETITION FOR CONTEMPT AND PETITION TO SET ASIDE SALE OF PROPERTY THIS CAUSE came on for consideration upon the Debtor’s Motion to Reopen Case, “Petition” for Contempt and “Petition” (sic) to Set Aside Sale of Property. The Motion was filed by Joseph M. Eways, a Debtor who was involved in this closed Chapter 11 case. As noted, in addition to reopening the ca...
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ORDER ON MOTION TO RECONSIDER CLAIMS OF ESTILL BREWER, MARY BREWER AND OMEGA CORPORATION THE MATTER before the Court in this Chapter 11 case is the Motion to Reconsid *622 er the Claim of Estill Brewer, Mary Brewer and Omega Corporation filed by Freedom Savings and Loan Association, successor in interest to ComBank/Winter Park (Freedom Savings). Freedom Savings contends that ...
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MEMORANDUM DECISION — CONFIRMATION The chapter 11 cases filed by these eight related debtors have been jointly administered but not substantively consolidated. A confirmation hearing was held June 20 to consider competing reorganization plans submitted by the debtors and by certain creditors. The debtors’ plan was rejected by every class of impaired creditors and was withdrawn at the hear...
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MEMORANDUM OF DECISION This matter is before the court on the motion of the ICM Mortgage Corporation filed against William Phillip Edwards, debt- or, seeking relief from the stay of § 362(a) to permit it to proceed to ratification of the foreclosure sale held May 6, 1986, at 10:40 a.m. The sale was consummated prior to debtor’s filing of his Chapter 13 case on May 6, 1986, at 11:42 a.m ...
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MEMORANDUM OPINION The question presented is whether a claim against a Chapter 11 debtor for withdrawing from a pension fund created by a collective bargaining agreement is subject to the limitation imposed by Section 502(b)(7) of the Bankruptcy Code. 11 U.S.C. § 502(b)(7) (Supp. II 1984). The facts have been stipulated by the parties and are as follows: The Debtor, Gee & Missle...
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MEMORANDUM OPINION AND ORDER This case was heard before the court on the debtors’ Motion to Vacate Order filed herein March 13,1986. This motion relates to an order entered by this court directing the Chapter 13 trustee to turnover to the Chapter 7 trustee funds paid in by the debtors under their aborted attempt to achieve a successful Chapter 13 plan for their creditors. The debtors filed th...
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DECISION Notwithstanding our attempt to be brief, the travel of this case to date, spanning a period of 17 years, and the novelty and complexity of issues of law and fact raised, have resulted in the following (but necessarily) lengthy decision. From approximately 1953 until 1978, Frank and Pauline Giorgio owned and operated a bar and restaurant in West Warwick, Rhode Island, known a...
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MEMORANDUM OPINION By application dated the 30th day of May, 1986, defendants, Thomas E. Williams, Tom Williams, Inc., Tom Williams Sports, Ltd., and Concorde Financial Corporation, object to the jurisdiction of this court to hear this adversary proceeding. The defendants urge dismissal for lack of subject matter jurisdiction, and in the alternative, abstention by this court. Coaches Sports T...
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MEMORANDUM OPINION This matter comes before the Court upon the complaint of the plaintiff, Allianz Insurance Company (“Allianz”), for a determination that a debt owing to it by the debtor and defendant in the above-styled proceeding, Earl Charles Taylor (“Taylor”), is non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(2). Taylor filed an answer in response to Allianz’ complaint, and a...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The debtors, by Terrence Byrne, have brought this motion pursuant to 11 U.S.C. § 522(f) and Bankruptcy Rule 4004 to avoid liens on property. The Stratford State Bank (SSB), by Robert Reinertson, objects to the debtors’ motion. A hearing was held on this matter on April 16, 1986, and an adjourned hearing was held on June 18, 1986...
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ORDER THIS MATTER comes before the Court on Gwendolyn McCray’s Motion for Relief from Stay, upon which a hearing was held on June 26, 1986. This Court notes jurisdiction pursuant to 28 U.S.C. § 1334(b). The movant claims that since the debt involved and the garnishment being maintained is for past due child support, the automatic stay provisions of 11 U.S.C. § 362 do not apply because such ob...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On the 19th day of November, 1985, the following matters came on for hearing before the Court: 1. Debtors motion to avoid lien and the objection thereto of the Farmers State Bank of Oakley. 2. Objection to exemptions of the Farmers State Bank of Oakley. 3. Farmers State Bank of Oakley v. Kenneth Joseph Schroeder, Adversary ...
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•OPINION On consideration of the motion filed by the Federal Land Bank of Jackson requesting that the debtor, John C. “Wiley” Hil-burn, be required to pay reasonable compensation for the use of land which was foreclosed by the Federal Land Bank of Jackson on June 20, 1985; response to said motion having been filed by the debtor; all parties being represented before the Court by their resp...
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DECISION ON OBJECTION TO PROPOSED DISTRIBUTION The Westchester County Department of Social Services (“Westchester”), holder of a secured claim which is junior to that of the first mortgagee, Ponce de Leon Federal Savings Bank (the “Bank”), objects to a proposed distribution in this Chapter 7 case to the extent that the Bank receives any interest on advances made by the Bank towards the pa...
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MEMORANDUM OPINION The debtor filed her Chapter 13 petition herein on December 17, 1985. Her original plan, dated December 31, 1985, provided for annual payments to the trustee in the amount of $23,200. At the adjourned confirmation hearing held on May 14,1986, the debtor, through her attorney, Keith Boyd, submitted an amended plan dated May 14, 1986. Under this plan, she proposes to pay ...
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MEMORANDUM In this adversary proceeding, the debtor seeks to enjoin Amoco Oil Company (“Amoco”) from proceeding with its civil action in the United States District Court for the Eastern District of Pennsylvania against Leonard A. Swann, Jr., John B. Maher, and Michael J. Burke, officers and employees of the debtor. 1 The gravamen of the debt- or’s complaint for injunctive relie...
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MEMORANDUM OPINION Presently before this Court is a motion by the attorneys for the Chapter 7 Trustee, asking the Court to reconsider their requested fee. Because this appears to be a situation which will arise frequently, we present a full explanation of the manner in which the approved fee was determined. We do this with the hope that the principles set forth herein provide all trustees...
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OPINION Came on for consideration the amended application for compensation filed by Janet B. Cammack, as attorney for the debtors; objections to said application filed by Allied Jetero Bank, N.A., Allied Bank North Belt, and the debtors’ unsecured creditors committee; all parties being represented by their respective attorneys of record; and the Court having heard and considered evidence,...
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MEMORANDUM OF DECISION The First National Bank of Claude, Claude, Texas (Bank) filed a Complaint Objecting to the Discharge of Forrest E. Williams and C. Delores Williams, the Debtors in the captioned proceeding, under §§ 727(a)(3), (a)(4)(D), and (a)(5) of the Bankruptcy Code. 1 Facts Mr. Williams is a skilled carpenter and experienced construction supervisor. The D...
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MEMORANDUM DECISION AND ORDER INTRODUCTION Colorado National Bank (“Bank”) obtained a judgment in Colorado, a non-marital community state, against the separate estate of Gary M. Merlino (“Debtor”) in the amount of $76,192. plus interest. The Debtor, his spouse, his assets and his business are located in Washington State which is a community property state. The Bank sought to collect the debt ...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW The debtor, Carol Bartsch (formerly known as Carol Meier), initiated this adversary proceeding pursuant to 11 U.S.C. § 523(a)(8) and Bankruptcy Rule 4007 seeking a determination as to the dischargeability of her contractual obligation to the Wisconsin Higher Education Corporation (WHEC). The debtor appears by Herman Friess and W...
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MEMORANDUM OP OPINION AND ORDER The above-styled Chapter 7 bankruptcy case is before the Court on the Trustee’s Objection to Debtors’ Amended Claim of Exemption. A hearing was held on January 27, 1986 after which the Court took the matter under advisement. The Court finds this matter to constitute a “core” proceeding within the meaning of 28 U.S.C. § 157(b)(2). After considering the post-...
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MEMORANDUM-DECISION AND ORDER Virgil Hager (“Debtor”) seeks an order discharging of record a judgment lien of James F. Lattner (“Lattner”) filed with the County Clerk of Oswego County, New York on or about December 20, 1979. Debtor initially filed a petition for relief under Chapter 13 of the Bankruptcy Code, 11 U.S.C. (“Code”), on February 21, 1980. While Lattner’s counsel asserts otherw...
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MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT Before the Court is a Motion for Summary Judgment commenced by the plaintiff, Patrick A. Doucette, in an adversary proceeding brought against the defendant/debtor, Irwin Kwiat. The complaint alleges that certain debts of the defendant’s, owing to the plaintiff pursuant to a judgment from the state court are non-dis-chargeable under 11 U.S.C. § 523...
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MEMORANDUM OPINION This matter was heard in North Platte on June 17,1986, on motion by debtor requesting the Court find Norwest Bank Grand Island, N.A., a banking corporation, in contempt of court and to order said bank to refrain from further efforts to collect a discharged debt. The parties submitted affidavit evidence and the Court heard their arguments. The matter was then taken under adv...
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MEMORANDUM OPINION This adversary proceeding raises the question as to who owns the “technology” of the Chapter 11 debtor corporations— more particularly when it was acquired by the owner — and finally and most importantly just what “it” is. During a trial spanning two weeks on this matter the court was forced to “pass through the viewing screen” into a totally alien world of compute...
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MEMORANDUM DECISION DENYING MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION AND ORDER ON MOTION TO TRANSFER ADVERSARY PROCEEDING. The Hoffman Advertising Group, Inc. (the “Debtor”) filed a voluntary petition for relief pursuant to Chapter 7 of the Bankruptcy Code on August 22, 1983. Ira S. Greene was appointed Interim Trustee of the estate on August 26, 1983. On January 22, 1985 this ad...
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MEMORANDUM-DECISION AND ORDER Kevin D. and Anne M. Ventura (“Debtors”) have requested an order of the Court authorizing them to avoid certain judicial liens, pursuant to 11 U.S.C. § 522(f) (“Code”), held by Merchants National Bank and Trust Company of Syracuse (“Merchants”). The judicial liens are held against real property the Debtors use for their homestead. Debtors and Merchants e...
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OPINION The issue presented by the trustee is whether we should reconsider our order and accompanying opinion of December 23, 1985, based on the fact that the debtor was one of four primary obligors on a debt rather than the sole obligor. See In Re Eagson, 56 B.R. 127 (Bankr.E.D.Pa.1985). Since we conclude that the asserted fact is irrelevant for the purposes of the decision under scrutiny, we wil...
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MEMORANDUM OPINION This dispute concerns priority under 13 Pa. C.S.A. § 9312(b) between two creditors, West Central Production Credit Association (“WCPCA”) and Farmers Home Administration (“FmHA”). The affairs of the Debtor and these two creditors are interwoven, complicated and long, however, the parties have agreed to isolate several transactions for a resolution of this priority problem. Hop...
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ORDER ON OBJECTIONS TO CLAIMS THIS CAUSE having come on to be heard before the Court on June 27,1986, on the trustee, JEANETTE E. TAVORMINA, objections to claims and designation of hearing, and the Court having reviewed said objections, and due and proper notice having been given to the claimants herein, and after due consideration, it is thereupon, ORDERED and ADJUDGED, as follows: ...
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MEMORANDUM DECISION The trustee for Colombian Coffee Company (CCC) seeks avoidance under 11 U.S.C. § 548(a)(2) — constructive fraud — of six transfers made in 1982 and 1983 which total over $4.6 million. He asks recovery from Arab Banking Corporation (ABC) under § 550(a)(1). Each transfer is the subject of a separate count. The defendant Nordberg, trustee of a related bankruptcy esta...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE ABOVE-CAPTIONED adversary proceeding in this Chapter 7 case was initiated by a one-count Complaint seeking a determination that the Debtor’s obligation to pay all joint debts incurred during the marriage by Jose Arosemena (Debtor) and his former wife, Kimberly White,'the Plaintiff who instituted this adversary proceeding, is a non-...
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MEMORANDUM OF OPINION AND ORDER The above-styled Chapter 11 bankruptcy case is before the Court on a Motion for Relief from Stay and a Motion to Extend Time for Filing Proof of Claim filed by Massey-Ferguson, Inc. and Massey-Ferguson Credit Corporation [hereinafter referred to as “Movants”]. A hearing on the Motion for Relief from Stay was held on March 6, 1986, after which the Court took the m...
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OPINION The matter presently before the court is a motion to vacate the automatic stay, brought against the debtor, Daisey C. Nelson, by Central Mortgage Company (Central Mortgage). Central Mortgage is a secured creditor of the debtor, holding a first mortgage on the debtor’s residence, which is located at 1458 Kenwood Avenue, Camden, New Jersey. The facts of this case are as follows...
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Chemical Bank (hereinafter “Chemical”) has moved for an order to vacate the automatic stay under 11 U.S.C. § 362(d) to commence foreclosure on its security interests in the subject collateral, to wit, three Gates Lear Jets. Chemical seeks vacatur of the stay on two grounds: 1) the debtors lack equity in the collateral and the collateral is not necessary for an effective reorganization, 11 U.S.C...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO CLAIMS FOR FURLOUGH PAY FILED BY INDIVIDUAL PILOTS, FLIGHT ATTENDANTS AND THE UNION OF FLIGHT ATTENDANTS FINDINGS OF UNCONTESTED FACT The following facts are either stipulated, uncontested or established by the evidentia-ry record in this case, of which the Court takes notice and is considered a proper and adequate basis on whic...
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ORDER Cecil Richard Manwell 1 has created a graphic illustration of how badly a system *534 which depends on creditor vigilance can falter in the face of creditor apathy. 2 In re Lipply, 56 B.R. 524, 14 C.B.C.2d 309, 13 B.C.D. 1226 (Bkrtcy.N.D.Ind.1986). Man-well, as a debtor in possession, managed to incur approximately $1,600,000 in unpaid post-petition debt between September 16, 1980...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR JUDGMENT This adversary proceeding has been submitted to the undersigned United States Bankruptcy Judge for decision upon a written Stipulation of Fact, Memoranda of Law, and oral argument made on May 22, 1986. Plaintiff Samuel V. Calvert appears pro se. Defendant Bongards Creameries (hereinafter “Bongards”) appears by its att...
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ORDER This matter came on for trial on February 15, 1986, at 9:30 a.m. Sharon Fullmer and Katherine Bishop appeared representing the Plaintiff, Peter Joing. Peter Orlins appeared representing the Defendant, 0 & P Partnership. Plaintiff commenced this action on April 18, 1985, seeking to invalidate under 11 U.S.C. § 548, a mortgage foreclosure sale of his real property to Defendants. ...
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MEMORANDUM AND ORDER The plaintiff, Union State Bank of Hazen (Bank), by complaint filed February 18, 1986, seeks to establish a priority position ahead of various parties claiming interests in property of the debtor estates. The Bank alleges that its interest in certain cash collateral is superior to that of defendant Farmers Home Administration (FmHA). The Bank also alleges that it has ...
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OPINION The question for resolution is whether a second mortgagee may successfully demand payment on its mortgage from a portion of the rental income generated by property encumbered by the mortgage, pri- or to satisfaction of all postpetition arrear-ages owed to a first mortgagee on the property. For the reasons stated below, we conclude that the second mortgagee is not entitled to any p...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW DISALLOWING CERTAIN MISCELLANEOUS LABOR PROTECTIVE PROVISION CLAIMS Findings of Fact 1.On August 14, 1981 the Civil Aeronautics Board (“CAB”) approved the acquisition of Continental Air Lines, Inc. by Texas International Airlines, Inc., CAB Order No. 81-10-66. As a condition to its approval of the acquisition, the CAB imposed labor protective provisions (“...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO THE UNIONS’ AUTHORITY TO FILE CLAIMS ON BEHALF OF INDIVIDUAL EMPLOYEES The following are facts either stipulated or established by the evidentiary record in this case in previous matters, of which the Court takes notice, and is considered a proper and adequate basis on which to make these “Findings” and “Conclusions”:. FINDINGS ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO MOTION TO DISALLOW OR TO ESTIMATE AT ZERO VALUE THE CONTRACT REJECTION DAMAGES CLAIMS FILED BY THE AIR LINE PILOTS ASSOCIATION The following facts are either stipulated, uncontested or established by the evidentia-ry record in this case, of which the Court takes notice and is considered a proper and adequate basis on which to make th...
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MEMORANDUM OPINION On December 16, 1985, a hearing was held on the confirmation of the debtors’ proposed chapter 13 plan. An objection was filed by Mr. Harvey Jones which alleged that the proposed plan was not feasible and was not filed in good faith. The proceeding before the Court is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L). The following constitutes the Court’s findi...
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Findings of Fact, Conclusions of Law; ORDERS re Objections to Exemptions The matter before the Court is whether Roger L. Matthews’ (Debtor) Individual Retirement Account is exempt from Debtors’ bankruptcy estate. The matter came for hearing on March 27, 1986, at which time the exemption issue was taken under advisement. The Court having reviewed the evidence and being fully advised, now makes...
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FINDING AND RULING ON GOOD FAITH NEGOTIATIONS Gray Line of Boston, Inc., the debtor, seeks injunctive relief and damages, under Mass.Gen.Laws ch. 93A § 11, against the Sheraton Boston Corporation (“Sheraton”). Gray Line alleges that Sheraton violated Paragraph 8 of a Court-approved stipulation between the parties. Sheraton failed to negotiate in good faith for renewal of a lease of space in the...
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REPORT OF A RELATED CASE SECTION 505(a) and THIRD PARTY TAX LIABILITY The defendant United States of America has moved this Court for an order dismissing it as a defendant in this action. The United States contends that this Court does not have jurisdiction to determine the tax liability of a person who is not a debtor. As one of the subsidiary issues is whether the plaintiff has sta...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Gordon Car and Truck Rental, Inc. (“Debtor”) has commenced the present adversary proceeding requesting the declaratory judgment of the Court respecting the rights, if any, of Debtor in certain franchise or license agreements. Original defendants consisted of Sheldon A. Gordon, Jr. (“S.A. Gordon”), Richard W. Gordon (“R.W....
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MEMORANDUM OPINION Statement of the Case The parties have stipulated to the following facts: On July 9, 1984, Alloy & Stainless, Inc. (“A & S”) obtained a judgment in the United States District Court for the Northern District of Texas against Technical Alloy Metals, Inc. (“TAMI”), Israel Ro-senfield (“Rosenfield”, “Debtor”, or “DIP”) and R. Joel Ridout (“Ridout”) (collecti...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the motion of DRG Funding Corp. (“DRG”), a creditor of the estate, for change of venue and other relief. The debtor, Pickwick Place Limited Partnership (“Pickwick”) and LaSalle Cinnamon Pickwick Limited Partnership (“LaSalle”), a limited partner creditor, have opposed the motion. The Court, having heard counsel for all parties and ...
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OPINION Each of the above-named debtors is seeking to reopen the debtor’s closed bankruptcy proceeding for the purpose of adding a creditor. If a creditor can be added after a case is closed, reopening is appropriate. PATRICIA and ROBYN MADDOX Patricia Maddox filed a voluntary petition under Chapter 7 of Title 11 on August 26, 1985. Her petition showed no assets. As authorized b...
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MEMORANDUM OF DECISION This cause came before the Court on the debtor’s MOTION TO DETERMINE DIS-CHARGEABILITY OF IRS TAX LIEN. The Internal Revenue Service (hereinafter called “I.R.S.”) has filed a proof of claim in Mr. Terrell’s Chapter 7 case for $223,018.96 (Claim # 5). 1 The debtor does not dispute that he owes the $840.00 plus $73.67 in pre-petition interest for personal i...
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MEMORANDUM AND ORDER The matter before the court is the joint motion of the Federal Land Bank (FLB) and the Pee Dee Production Credit Association (PCA) for allowance of administrative claims pursuant to 11 U.S.C. §§ 507(b) and 503(b). FLB and PCA, as secured creditors of Lenton Brunson McGill (debtor), posit that these claims should be afforded an administrative priority because the prote...
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MEMORANDUM The “veil” of this debtor corporation is appropriately “pierced” to subject the debt- or’s shareholders to personal liability for the claims against this estate. The debtor was a sham corporation, organized and operated to carry out an illegal scheme. The partnership defendants were controlled by the debtor’s shareholders and performed as integral parts of a fraud on creditors....
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MEMORANDUM OF DECISION The Debtors in the captioned proceedings under Chapter 11 of the Bankruptcy Code filed a Complaint seeking a declaration of the effect of § 552 of the Bankruptcy Code 1 on their prepetition financing agreements with the Bank of Oklahoma, Oklahoma City, N.A. (Bank). The matter was presented to the Court on stipulated facts contained in the Pretrial Order. ...
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62 B.R. 31 (1986) In re Andrew George SOLARI, aka Andrew G. Solari, and Andrew Solari, dba Pioneer Take-Out 206, Debtor. Andrew George SOLARI, Appellant, v. Jack A. ULRICH, Trustee in Bankruptcy, Appellee. UNITED STATES of America, (Internal Revenue Service), Appellants, v. Jack A. ULRICH, Trustee in Bankruptcy, Appellee. Bankruptcy Appeal Nos. EC 85-1413-ASEV, EC 85-1534-ASEV, Bankruptcy No. F-8...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT This matter is before the Court as Amended Motion of defendant State of lili- *484 nois (“State”) for summary judgment on debtor’s Complaint to determine the dis-chargeability of State tax debts. The Court has reviewed the pleadings, memo-randa, exhibits and affidavit filed by the State and ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER re: § 727 COMPLAINT The complaint of the Federal Land Bank of Omaha (Federal Land Bank) objecting to Debtors’ discharge pursuant to 11 U.S.C. § 727 came on for trial before the court pursuant to notice to all parties. The court now issues its Findings of Fact, Conclusions of Law and Orders pursuant to F.R. B.P. 7052. This is a core proceedin...
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OPINION Came on for consideration the complaint to deny dischargeability of a debt, filed by the Plaintiff, Judy Faye Carter Sullivan (Syron), against the Debtor, William David Sullivan; as well as, the complaint to determine the dischargeability of a debt filed by the Debtor, William David Sullivan, against the Defendant, Judy Faye Carter Sullivan (Syron); answers to each of the said complaint...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER ALLOWING CLAIM OF INTERNAL REVENUE SERVICE AGAINST THE BANKRUPTCY ESTATE UNDER SECTION 64a(4) OF THE BANKRUPTCY ACT IN THE SUM OF $3,719.12 AND OTHERWISE DISALLOWING CLAIM AND FURTHER DETERMINING THAT PETITIONER HAS NO LIABILITY FOR TAXES, PENALTIES OR INTEREST The petitioning debtor seeks relief from the bankruptcy court in the form of...
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DECISION AND ORDER This is a motion by joint Chapter 13 debtors to expunge a claim filed by the Internal Revenue Service (“IRS”). The motion is granted. FACTS The debtor, Jack Turchon, was the President of Measurematic Corporation (“Mea-surematic”). On August 11,1982 Measure-matic filed a petition for relief under Chapter 11 of the Bankruptcy Code in this court. On January 3, 1983 Jack Turc...
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MEMORANDUM OPINION On July 19, 1985, The Oregon Bank (hereinafter TOB) filed a motion for determination of secured status. This filing was the culmination of years of complex business transactions, both pre- and post-petition, between TOB and the debtor (hereinafter Mazama). The motion requests the court to find the extent of TOB’s entitlement to adequate protection and enter an order req...
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MEMORANDUM OPINION AND ORDER By application dated the 8th day of May, 1986, Charles B. Covert (“Covert”), one of the unsecured creditors of Don E. McGuirt, debtor, seeks relief from the stay which automatically springs into effect on the filing of a petition under Bankruptcy Code 11 U.S.C. § 362. Cf. Fidelity Mortgage Investors v. Camelia Builders, Inc., et al, 550 F.2d 47 (2d Cir.1976). In...
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JURISDICTION This matter came before the court for trial on plaintiffs’ complaint to determine the dischargeability of a debt pursuant to § 523(a)(2)(B) of the Bankruptcy Code. The Court has jurisdiction over the subject matter of and parties to this adversary proceeding pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference of the United States District Court for the District...
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MEMORANDUM DECISION Beginning in 1982 the debtor, Elizabeth Atkinson, cosigned with her son, Robert Atkinson, on four different loans at Bosco-bel State Bank. 1 Robert began to have economic difficulties in 1983 and the notes became overdue. On January 4, 1984, the debtor transferred to her daughter, Martha Hestad, a forty acre tract of real estate in Crawford County. On that s...
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MEMORANDUM DECISION This is a turnover action filed by the trustee, William J. Rameker, pursuant to 11 U.S.C. § 542. The issue before the court is whether the debtor, John B. Wit-tenwyler, must turn over three vehicles to the trustee for liquidation because equity existing in the vehicles is property of the estate. On September 17, 1985, the debtor borrowed $5,500.00 from the State B...
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ORDER APPROVING EMPLOYMENT OF COUNSEL, AND DENYING APPOINTMENT NUNC PRO TUNC I. INTRODUCTION This Chapter 11 bankruptcy case was filed by the debtor in possession McKinney Ranch Associates (“McKinney”), a California limited partnership, on January 4,1985. On the same day McKinney retained attorney Marc Zegar (“Applicant”) to represent it in this case, and paid him a retainer of $2,50...
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MEMORANDUM OPINION AND DECISION FACTS On April 15, 1985, prior to filing bankruptcy, Dewey W. and Stephanie A. Bandy *438 borrowed $2,103.71 from Aetna Finance Company (Aetna). As security for the loan, Aetna took a nonpurchase money security interest in the following items: 1. four televisions 2. video cassette recorder 3. Commodore computer 4. answering machine 5. Atari video ga...
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MEMORANDUM OF DECISION AND ORDER RE: PROOF OF CLAIM OF SENTRY INSURANCE COMPANY This core proceeding, see 28 U.S.C. § 157(b)(2)(B), concerns a motion entitled “Motion to Accept Late Filing, Or In The Alternative Dissolve Stay,” filed by a creditor, Sentry Insurance Company (Sentry). The motion is, in fact, not for acceptance of a late filing, but for recognition of Sentry’...
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OPINION This matter is before the Court on the Debtor, Phyllis Ann Stoffer’s, complaint to avoid and recover transfer. The Debtor seeks to recover $73.80 of wages that have been withheld pursuant to a wage deduction order. *1009 The material facts are not in dispute. The Debtor is employed by Decatur Window Cleaning Company. As of April 3, 1986, Decatur Window Cleaning Company has withheld ...
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*960 MEMORANDUM RE: COMPLAINT TO DETERMINE DISCHARGEABILITY OF A DEBT This matter is before the Court on a complaint filed by the Connecticut National Bank (the “Bank”) on June 29, 1984, seeking to determine the dischargeability of a debt owed by David J. Panaia (“Panaia”) to the Bank. The defendant, Panaia, filed a Motion to Dismiss the proceeding on August 16, 1984, which was subsequently t...
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MEMORANDUM This matter is before the Court on the complaint of Beverages International, Ltd. (“Beverages” or the “Debtor”) against Schenley Affiliated Brands Corp. (“Schen-ley”). Beverages seeks a declaratory judgment that the product line supplied by Schenley to Beverages is property of the estate and, as such, transferable to United Liquors, Ltd. (“United”). The Court conducted a pre-tr...
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ORDER DENYING MOTION TO SET ASIDE DEFAULT JUDGMENT AVOIDING LIEN EXCEPT WITH RESPECT TO CAMERAS, RODS & REELS AND WEIGHT SET On March 20, 1986, the movants filed a motion for lien avoidance with respect to “debtors’ household and personal goods” under the provisions of § 522(f)(2) of the Bankruptcy Code. In responding to the motion, the respondent does not deny that the security interest ...
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ORDER Debtors demand a jury trial on their complaint seeking recision and damages for defendants’ alleged tortious conduct in addition to violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. Based upon the arguments of counsel and the Point and Authorities submitted in support of debtors’ position, and also noting defendants’ failure to submit opposing Points and Authorities, the Court...
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PRE-TRIAL ORDER AND ORDER ON GINN PUBLISHING’S MOTION SEEKING WITHDRAWAL OF REFERENCE AND DETERMINATION PURSUANT TO 28 U.S.C. § 157 THAT THIS CIVIL ACTION IS NOT A “CORE PROCEEDING” AND FOR OTHER RELIEF This case came on for pre-trial hearing on June 17, 1986 on the Debtor’s Complaint for Turnover of Property of the Estate, for Rejection of Executory Contract and for Related Relief; Ginn Publis...
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DECISION AND ORDER DENYING LOCKHEED’S CLAIM FOR ATTORNEYS’ FEES AND EXPENSES Lockheed Corporation (“Lockheed”), in Claim Number M52100, seeks $195,463.09 in attorneys’ fees and expenses from the debtor, O.P.M. Leasing Services, Inc. (“O.P.M.”). Lockheed incurred these fees defending a suit in Iowa brought by a third party, Steel Warehousing Inc. (“Steel”). Steel had instituted that suit t...
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The plaintiff, June Barwick, has filed a complaint objecting to the discharge in bankruptcy of the debtor, Gail Sforza Brewer, pursuant to 11 U.S.C. § 727(a)(3) and (4) and objecting to the dischargeability of her claim against the debtor pursuant to 11 U.S.C. § 523(a)(2)(B). At the trial, the plaintiff was allowed to discontinue her objection to the debtor’s discharge in bankruptcy and to proc...
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DECISION AND ORDER ON APPLICATION FOR ATTORNEYS’ FEES In this Chapter 11 case, a plan has been confirmed. The case was filed August 5, 1983. Reflective of the fact that general trade creditors were nominal in amount and number, and therefore did not have any interest in a significant involvement with the case, no creditors’ committee was appointed. Early in the case, on November 22, 1983, a mot...
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OPINION The question for resolution, where the plaintiff has filed suit to set aside the debt- or’s assignment of its right to purchase realty under an installment sale contract, is whether we should grant the motion for partial summary judgment filed by the defendant/assignee in light of the fact that the prepetition assignment was not recorded although the trustee abandoned its interest in the ...
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ORDER At issue in this proceeding is the dis-chargeability of an unliquidated debt for a Ford pick-up owned by the plaintiff and acquired by the debtors through the plaintiff’s spouse. The evidence adduced at trial revealed that the 1975 Ford pick-up at the *10heart of this dispute was indeed owned by the plaintiff, Robert D. Adams, and titled in his name. Witnesses recounted a turbulent relations...
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MEMORANDUM AND ORDER This matter comes before the Court upon the Bank’s and Trustees’ Motion for Partial Summary Judgment upon their request for a declaratory judgment that the Debtor-in-Possession, Lester Carpenter Leonard, Jr. has no interest in certain premises known as 2630 Adams Mill Road, N.W., Washington, D.C. The facts are not in dispute. Leonard acquired title to the subject property...
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DECISION AND ORDER This is an adversary proceeding commenced by the Chapter 7 Trustee in bankruptcy of North American Dealer Group (“NADS” or the “debtor”), to recover a fraudulent conveyance pursuant to Section 548 of the Bankruptcy Code from George Jacobs (“Jacobs”), the former President and fifty percent stockholder of NADS. 1 FACTS NADS originally filed a petition fo...
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This matter was referred to this court by Chief Judge Jack B. Weinstein of the District Court of the Eastern District of New York, for a hearing and report by the Bankruptcy Court acting as Special Master. The parties suggested and the court agreed to consider the issues based upon the pleadings submitted in the underlying District Court case. In District Court, defendant Cut Rate Plastic Hange...
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CONDITIONAL ORDER GRANTING RELIEF FROM STAY Heard on April 17, 1986, on Russell Hoyt's objection to the motion of the Bank of New York (the Bank) for relief from the automatic stay. The Bank seeks an order authorizing turnover of approximately $1,150,000 being held in escrow as proceeds of the Bank’s collateral, which was sold pursuant to Court order, after it became apparent that there was no rea...
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DECISION Heard on the plaintiff-debtor’s complaint, under 11 U.S.C. §§ 547 and 553, to void a preference and to recover a setoff of funds which occurred when defendants withheld veteran’s benefits that became due to the debtor within ninety days of his filing a Chapter 7 petition. The debtor seeks an order compelling defendants to return those funds set off within 90 days of the date of f...
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MEMORANDUM DECISION This is an adversary proceeding to determine the nondischargeability of a debt owed to the plaintiff, Michael C. Ablan (“Ablan”). The debtor-defendants have moved for summary judgment on the grounds that no material facts are in dispute and that they are entitled to judgment as a matter of law. The essence of Ablan’s complaint is that Donald J. Weber (“Weber”) on behalf of...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Motion of The Travelers Insurance Co. (Travelers) to Terminate the Automatic Stay. The Debtor is represented by Attorney Bernard J. Natale. Travelers is represented by Attorney Robert S. Minetz and Attorney Sarah S. Hirsen. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pu...
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ENTRY ON DEBTOR’S COMPLAINT TO SET ASIDE AND VACATE A FRAUDULENT CONVEYANCE 1.Factual Statement On September 25, 1985, Debtor filed his bankruptcy petition under Chapter 13 of Title 11 of the United States Code. On November 14, 1985, Debtor filed the instant complaint to set aside and vacate a fraudulent conveyance (“Complaint”), praying that this Court exercise its avoiding powe...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIMED EXEMPTION This matter was heard April 24, 1986, on the trustee’s objection to the Debtor Timothy E. Loe’s claimed exemption of a vested interest in a profit sharing plan maintained through his employment. Charles Adam-son appeared on behalf of Debtors, and Robert Winzenburg appeared on behalf of Trustee Mark Halverson. The dispute was sub...
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DECISION ON MOTION SEEKING AN ORDER FOR A NEW TRIAL PURSUANT TO FED.R.CIY.P. 60(b) The plaintiff, Gary Bernard, Inc., a corporate money lender, brings this motion for a new trial in accordance with Fed.R.Civ.P. 60(b) on grounds of newly discovered evidence and fraud. The plaintiff claims that the debtor, Tinga K. Seisay, asserted at the trial of this case that he was the victim of a usuri...
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DECISION ON COMPLAINT SEEKING ORDER FOR RECOVERY OF FUNDS Nanuet National Bank (“NNB”), the plaintiff in this adversary proceeding, seeks to recover the proceeds from photographic portrait orders which the trustee in bankruptcy caused to be processed and filled after the debtor’s Chapter 11 reorganization case was converted for liquidation under Chapter 7 of the Bankruptcy Code. The trust...
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The law firm of Kronish, Lieb, Weiner & Heilman, as attorneys for Richard Lieb, the Chapter 11 trustee of Stephen Mishkin, seek compensation for legal services provided to Mishkin’s Chapter 11 trustee in operating and managing for a time certain property known as the Park Street Mall, which was then owned by Park Street Mall, Inc. Objection to this application has been filed by Park Street Mall, I...
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MEMORANDUM OPINION Before the Court is a dispute as to proceeds received from the sale of an above-ground swimming pool in this Court on January 16, 1986. Old Republic Insurance Company (hereinafter “Old Republic”) claims that it is the assignee of a perfected security interest in consumer goods (the swimming pool) and therefore has a right to the proceeds from the sale. Second National B...
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J & L Transport, Inc. (“J & L”), a chapter 11 debtor, has moved the court to order First Savings Leasing Corp. (“First Savings”), a secured creditor, to endorse four insurance checks made payable jointly to J & L and either First Savings or its assign-ee, Lyons Capital Resources, Inc. (“Lyons”). All four checks are the proceeds of insurance policies covering J & L trailers, which were damaged i...
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The bankruptcy trustee appeals from a decision that awards a portion of certain rents and profits to a trust deed holder according to the entry date of an order granting relief from stay to foreclose. The rents and profits at issue were collected by the trustee from the debtors’ filing in bankruptcy through entry of an order of foreclosure. We reverse and remand for the bankruptcy court to enter ...
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At the time the debtor’s Chapter 11 Plan of Reorganization came on for confirmation, the debtor’s counsel volunteered that there was an ongoing dispute with the Internal Revenue Service which, unless settled or resolved, could doom the plan. Although the IRS did not file an objection to confirmation of the proposed plan, the debtor chose not to proceed. Instead, he filed this motion under 11 U....
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OPINION ON “COMPLAINT FOR RELIEF FROM STAY, TO RECLAIM PROPERTY AND TO BAR DEBTOR FROM CLAIMING RIGHT OF REDEMPTION” FILED BY JIM WALTER HOMES, INC. AND JOHN H. FOX, III, AS TRUSTEE The Plaintiff, Jim Walter Homes, Inc., (Jim Walter Homes) is the holder of a promissory note which is secured by a deed of trust on a home and approximately one-half (V2) acre of land. It is the beneficiary of the d...
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MEMORANDUM OPINION Presently before this Court are Complaints To Determine The Dischargeability Of Student Loans owed to Seton Hill College and the Pennsylvania Higher Education Assistance Agency (hereinafter “PHEAA”), pursuant to 11 U.S.C. § 523(a)(8). Based upon the pleadings submitted and the subsequent hearing thereon, we find these debts to be nondischargeable. The Debtor admits that the...
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DECISION GRANTING DEBTOR’S MOTION TO VOID JUDICIAL LIEN Heard on Fairlawn Credit Union’s objection to the debtor’s motion to void a lien under 11 U.S.C. § 522(f). On May 31, 1983, pursuant to R.I. GEN. LAWS § 9-28-1 (1969 Reenactment) 1 Fair-lawn brought a debt on judgment action against Rianna in the Rhode Island Fifth Division District Court (C.A. No. 83-997), and on Jun...
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MEMORANDUM OPINION AND ORDER This case is on remand from the United States Court of Appeals for the Fourth Circuit to determine whether certain restaurant equipment constitutes tools of the trade under 11 U.S.C. § 522(f)(2)(B). The relevant facts are as follows. The Debtors, James R. Nuckolls and Judy M. Nuckolls, operated Jim & Judy’s Restaurant in Grundy, Virginia. In the Fall of 1982, the Debt...
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Military Distributors of Virginia, Inc. appeals an order granting summary judgment to California Canners and Growers on its claim against Military Distributors for post-petition delivery of goods. The order refused to allow Military Distributors to offset its pre-petition claim against California Canners for goods delivered. We affirm. STANDARD OF REVIEW We review the grant of summary judgment und...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of Daniel J. D’Ambrosia, a/k/a TDK Builders, Inc., a/k/a Torpino’s Pizza (“debtor”) to avoid a judicial lien and preferential transfer pursuant to 11 U.S.C. §§ 522(f)(1), 522(h), and 547(b). 1 Henry W. Crosetti and Kathleen Crosetti (“lien creditors”), in whose favor the judicial lien was granted, reply that their...
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Reasons for Judgment This matter comes before the court on a motion for summary judgment filed by Mid-South Fleet Leasing Corporation, one of the claimants in this interpleader action. The motion is opposed by Leevac Petroleum Corporation, the only other claimant to the fund herein. Upon consideration of the briefs and arguments of counsel, the following shall constitute the findings a...
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MEMORANDUM OPINION REGARDING DEBTORS’ PROPOSED CHAPTER 13 PLAN The debtors filed their joint petition for relief under Chapter 13 on August 19, 1985. In their petition, they list their unsecured debts in two separate categories: one for debts incurred during the operation of their bookstore, The Mustard Seed; the other for unsecured consumer debts. Ac *393 cording to their sc...
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OPINION This adversary proceeding seeks an order permitting the recovery of $28,722.60 claimed to be held by the debtor in constructive trust for the plaintiff as the result of a mistaken payment. We hold that the plaintiff is not entitled to recover. FACTS In October of 1984 the debtor received from Lane Bryant Corporation (“Lane Bryant”) a check for $28,722.60 payable to the o...
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DECISION ALLOWING CLAIM OF EXEMPT PROPERTY, AND DENYING MOTION FOR RELIEF FROM STAY Heard on the creditors’ (Guido R. Salva-dore, Joseph P. Bellino and Clark A. Sam-martino) objection to the debtor’s claim of exempt property, and on their motion for relief from the automatic stay. 11 U.S.C. *923§ 362(d). The creditors also request an order compelling the turnover of funds. The relevant facts are a...
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ORDER Heard on June 10, 1986, on the debtor's objection to application of the trustee’s statutory percentage fee to current mortgage payments to be made by the trustee to Old Stone Bank, under the terms of the amended Chapter 13 plan. See 28 U.S.C. § 586. Once again, the trustee is arguing in favor of strict application of the statutory fee to all payments made by him under a Chapter 13 plan (incl...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT THIS MATTER comes before the Court on the Debtor’s Motion for Partial Summary Judgment with regard to Objection to Claim of Robert C. Lyon (Claim No. 3). The Court determines that this matter is a core proceeding under 28 U.S.C. § 157(b)(2)(B) and (b)(2)(K). Mr. Lyon filed his claim herein on October 12, 1985, in the sum of $2,581,000.00 as a secured c...
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MEMORANDUM OF DECISION Titan Enterprises International, Ltd. (“Titan”) moves in each of the above cases for relief from the automatic stay, 11 U.S.C. § 362(a), “to permit it to pursue contempt proceedings against the debtor in the New Haven Superior Court.” 1 It is noted at the outset that although neither Titan’s motions for relief nor the stipulation of the parties specify th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDERS Sustaining in Part and Denying in Part § 523/§ 727 Complaint The matter before the Court is the complaint of the First National Bank of Oel-wein (Bank) objecting to Debtors’ general discharge, and in the alternative, the discharge of various debts. Having reviewed the testimony and briefs of the parties, the Court now makes the following Fi...
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*773 MEMORANDUM ON FEE APPLICATION OF JON D. SCHNEIDER This is the third in a series of three memoranda addressing the fee applications of attorneys employed in the administration of the WHET, Inc. estate. The first memorandum In re WHET, Inc., 58 B.R. 278 (Bankr.D.Mass.1986), outlined new guidelines to be followed in the structuring of fee applications and analyzed th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING COMPLAINT FOR RELIEF The complaint which commenced the within adversary action was filed by the plaintiff trustee in bankruptcy on December 5, 1985. In that complaint, he sought a determination of the court pursuant to section 544 of the Bankruptcy Code that a 1985 Commodore Medallion Trailer was property of the estate despite a c...
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MEMORANDUM OPINION This adversary proceeding concerning the extent and validity of a security interest was tried on April 22, 1986. Facts 1. Debtors filed a Chapter 11 petition on May 29, 1985. Debtors are farmers. 2. On or about February 7, 1979, debtors executed a combined financing statement security agreement granting a security interest in: “ ‘collateral’, whether now owned or he...
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MEMORANDUM AND DECISION The trustee for the debtor’s estate filed a complaint to recover an allegedly fraudulent conveyance made by the debtor to Francis A. Pierri. The complaint was filed pursuant to 11 U.S.C. § 544 and N.Y. Debt, and Cred. Law §§ 273-a and 276. A trial was held on November 14, 1985 at which time the only testimony heard was that of Mr. Pierri. The prefiled testimony of an expert...
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DECISION ON THREE MOTIONS SEEKING ORDERS LIFTING AUTOMATIC STAY, TO PUNISH FOR CONTEMPT AND PERMISSION FOR DEBTOR TO TRANSFER PROPERTY OF THE ESTATE The debtor in this Chapter 11 case, Co-hoes Industrial Terminal, Inc., asserts leasehold rights to an apartment complex now owned by Latham Sparrowbush Associates, as landlord. The landlord claims that the lease was terminated upon the exerci...
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MEMORANDUM OPINION This matter is before the court on a complaint filed by the debtor, Darwin Fandrich, for an order allowing him. to transfer certain real property to his former wife, free and clear of liens. The relief requested is opposed by several judgment lien creditors whose liens have attached to the property in question. The case was tried on April 23, 1986. FINDINGS OF FACT The fa...
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ORDER DENYING MOTION TO DISQUALIFY Central Pacific Freight Lines, Inc. (“Debtor”) moved to disqualify the law firm of Hall, McGrory & Buell from further representation of creditors OK Delivery Systems, Inc., Mount Trailer Company, and DSU, Inc., in this proceeding. The Debtor bases its motion on the fact that the Hall law firm represented Central Pacific Freight Lines in the case of Ahern, et al....
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OPINION On remand from the district court, the issue is whether we should deny the debtor a discharge of debts on the basis that (1) under 11 U.S.C. § 727(a)(5)1 of the Bankruptcy Code (“the Code”) the debtor failed to offer a satisfactory explanation for a missing truck, or (2) under § 727(a)(3) he failed to keep accurate records of his vehicle insurance policies. For the reasons expressed below,...
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MEMORANDUM OPINION The issue presented is whether the attorney’s fees incurred by a former spouse in post-dissolution child custody litigation are non-dischargeable under 11 U.S.C. § 523(a)(5). Trial of this matter occurred *383 on March 7, 1986, both sides appeared through their attorneys, presented evidence and post trial memoranda of law. This Court concludes after an...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Complaint to Determine Discharge-ability of Debt filed by Sears Roebuck and Co., alleging that the Debtor’s debt was non-dischargeable under 11 U.S.C. § 523(a)(2). The trial was held on May 28, 1986. The debtor, Rita Mills, and her former husband, Charles Mills, had a joint credit account with Sears. Mr. Mills testified he...
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ORDER DENYING CONFIRMATION OF PLAN This matter came on to be heard for confirmation of the debtors' Chapter 13 plan. The debtors’ schedules of liabilities list two priority tax claims totaling $8,000.00; four secured creditors with total claims of $8,529.10; and 23 unsecured creditors with total claims of $9,684.21. The debtors’ plan proposes to pay priority creditors in full, their attorney $5...
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AMENDED MEMORANDUM AND ORDER DETERMINING DEBTOR’S REJECTION OF UNEXPIRED LEASE AND ORDERING DEBTOR TO SURRENDER PROPERTY Debtor-in-Possession Burns Fabricating Company (Burns) entered into a lease with the Marlin Group (Marlin) to lease certain premises located at 12601 Marlin Avenue in Redford, Michigan. 1 The leased property was employed for the purpose of operating the debto...
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FINAL JUDGMENT DISMISSING ADVERSARY ACTION WITHOUT PREJUDICE TO REINSTATEMENT, WITHOUT PAYMENT OF ANY FURTHER FILING FEE, FOR DETERMINATION OF DISCHARGEABILITY VEL NON IF AND WHEN ANY STATE COURT JUDGMENT IS RECOVERED AND ORDER ACCORDINGLY GRANTING PLAINTIFF RELIEF FROM THE AUTOMATIC STAY TO PROSECUTE THE STATE COURT ACTION On March 6, 1986, the plaintiff filed its “complaint under section 523(a)(...
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*984 DECISION AND ORDER ON DEBTORS’ APPLICATION TO REOPEN AND CREDITOR’S OBJECTION This matter came before the court on Ford Motor Credit Corporation’s (hereinafter “FMCC”) objections to the entry allowing debtors to reopen their bankruptcy case and to being listed as a creditor. Debtors originally filed their bankruptcy petition on August 30, 1982. The case was duly adminis...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIM 8C The Internal Revenue Service (“I.R.S.”) filed an II U.S.C. § 503(b) administrative expense claim for unpaid withholding taxes, penalties, and interest arising out of the debtor’s operating chapter 11 as well as the subsequent chapter 7 liquidation. The trustee objected to. allowance of interest. This is a core proceeding within the meaning ...
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MEMORANDUM OPINION Pursuant to Bankruptcy Rule 7052, the following constitutes the Court’s findings of fact and conclusions of law with respect to the trial held March 3, 1986. FINDINGS OF FACT Behring International, Inc. (“Behring” or “Debtor”) commenced this case in this court on April 17, 1985, by the filing of a voluntary petition pursuant to Chapter 11, Title 11 of the Unit...
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MEMORANDUM DECISION This controversy has been submitted to the court on stipulated facts and since no material facts are in dispute is ripe for summary judgment. The debtor, Robert W. Ford, filed in chapter 11 on February 18, 1983. Both before and after filing he operated a towing service under annual contracts with the City of Madison, awarded each December for the following calendar year. The...
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MEMORANDUM OF OPINION AND ORDER Plaintiff-Debtor filed the above-styled adversary complaint to determine the dis-chargeability of a debt pursuant to 11 U.S.C. § 523(a)(5). The debt in question arises out of a Judgment on Jury Verdict signed by the Superior Court of Dekalb County, State of Georgia on June 3, 1985, nunc pro tunc May 14, 1985. The jury awarded Defendant, int...
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MEMORANDUM OF DECISION Plaintiff, R.H. WILLIAMS (“the Debtor” or “Williams”), brings this Adversary Proceeding under Section 542 of the Bankrupt *569 cy Code seeking a turnover of funds of the Debtor held in certain accounts at AMERICAN BANK OF THE MID-CITIES (“the Bank”). Williams further seeks an award of actual and punitive damages against the Bank for an alleged violation...
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This matter comes before the Court on plaintiffs’ motion for summary judgment on their complaint objecting to the dis-chargeability of a debt pursuant to Section 523(a)(2)(A) and (B) of the Bankruptcy Code. The question presented is whether the findings of fact of the Third Judicial District Court should be given collateral estoppel effect in this proceeding. PROCEDURAL BACKGROUND Thi...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court on the Motion of The Federal Land Bank of Wichita (“the Land Bank”) seeking an order of this Court pursuant to § 543(d) of the Code to excuse a turnover of certain property of the Debtor which was in the hands of a State Court Receiver at the time of the filing of the within Chapter 11 case. The Debtor in this case is the...
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ORDER DENYING SUA SPONTE MOTION TO DISMISS UNDER 11 U.S.C. § 707(b) This cause came on to be heard sua sponte upon the court’s own motion to dismiss this chapter 7 petition pursuant to 11 U.S.C. § 707(b) and the court having received the inspiration for the motion from a little old ebony bird and not from any party in interest or any other person and having considered the presumption in favor o...
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MEMORANDUM OPINION AND ORDER This case comes to be heard on the motion of the debtor, Midwest Polychem, Ltd. (“Polychem”), to reject an executory contract pursuant to 11 U.S.C. Section 365(a). United States Movidyn Corporation (“Movi-dyn”), the other contracting party, opposes the motion on the basis that the contract at issue is not “executory” within the meaning of Section 365(a) and ev...
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ORDER GRANTING MOTION TO AUTHORIZE PAYMENT OF PRE-PETITION DEBT BY DISBURSEMENT THIS MATTER came on for hearing on the Debtor’s Motion for Authority to Authorize Payment of Pre-Petition Debt by Disbursement. The Court, being fully advised in the premises, finds that after proper notice, two parties filed objections to the relief sought by the Debtor. One objection was made by Dan Bottrell...
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DECISION ON OBJECTIONS TO DISCHARGEABILITY Plaintiff, Chrysler Capital Corp., has commenced adversary actions against the debtors, Emanuel Salzman and William Hamlin, on the ground that plaintiff’s claims against the debtors arising under their written guarantees of payment with respect to the obligations of BFM Printing Corp. (“BFM”), of which they were principal shareholders and officer...
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MEMORANDUM AND ORDER Before the court is the approval, vel non, of the disclosure statement relating to the plan of reorganization, both of which were filed by South Carolina National Bank (SCN) on February 20, 1986. The debtors and Hans Joachim Nerlich (Nerlich) object to the disclosure statement on the ground that a disclosure statement should not be approved if the plan...
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*564 MEMORANDUM OPINION SUMMARY This Chapter 7 adversary proceeding is based upon a Complaint to Determine Dis-chargeability of Debt under 11 U.S.C. § 523(a)(4) filed by a judgment creditor from a partnership dissolution and accounting suit against two former partners. The Bankruptcy Court held that despite Texas law reference to partners being “trustees” over the assets of ...
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MEMORANDUM- OF DECISION ON MOTION TO DISMISS A motion to dismiss on the grounds that the debtor is not eligible to be a debtor has been filed. The threshold question is whether an estate of a deceased individual can be a debtor under Chapter 7 or Chapter 11 of the Bankruptcy Code. For the reasons stated herein, we hold that an estate cannot be a debtor under Chapter 7 or Chapter 11. Accor...
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MEMORANDUM OF DECISION (OBJECTION TO CLAIM NOS. 50 AND 51; IRS/HUWEILER) The Internal Revenue Service (“IRS”), an agency of the United States, filed two claims (designated herein as Nos. 50 and 51). Mr. and Mrs. Loren Huweiler (“Hu-weiler”) have filed a demand for subrogation rights to the extent of $49,536.56 of the amount claimed by the IRS for unpaid employment withholding taxes (Claim No. 50)....
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MEMORANDUM OF DECISION (OBJECTION TO CLAIM NO. 55 — U.S. CUSTOMS SERVICE) The U.S. Customs Service, an agency of the United States, filed its claim (No. 55) for $521.52 for a supplemental duty bill. The parties agree that the claim was filed after the bar date for timely claims, but the U.S. Customs contends that the lack of timeliness should be excused because of a lack of prejudice to the Debtor...
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MEMORANDUM re: ORDER Overruling Motion to Dismiss The Motion to Dismiss filed by Michael W. Unertl, Deborah J. Unertl, Marvin G. Sutton, Sr., and Norma J. Sutton, came on for hearing before the Court on the 18th day of April, 1986. The Court heard evidence presented at the hearing on the Motion to Dismiss, and requested that the parties submit briefs. Those briefs have now been filed ...
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OPINION This adversary proceeding was begun as four separate law suits in the Circuit Court for the County of Ingham, Michigan. The Circuit Court actions were known as: East Lansing State Bank v. Red Cedar Construction, Inc., (File No. 82-30776-CK), East Lansing State Bank v. Red Cedar Construction, Inc., and National Bonding and Accident Insurance Company ...
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MEMORANDUM OPINION This issue came on before the Court on the Objection to Confirmation of the Debt- or’s Second Amended Plan of Reorganization filed by the United States of America on behalf of its agency, the Small Business Administration (SBA). No other objections were filed, and the issues were submitted to the Court on briefs. Upon consideration thereof, the Court enters the followin...
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*550MEMORANDUM DECISION AND ORDER By notice of motion dated December 24, 1985, Chrysler Credit Corporation (“Chrysler”) sought to have the automatic stay vacated so that it could foreclose its security interest on a 1982 Chrysler LeBaron Serial No. 1C3B46B2CC194487 (the “Car”). As of November 5, 1985, Chrysler was owed $3,554 and Chrysler had received no payments after July 1985. The retail instal...
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DECISION ON AMOUNT OF SANCTIONS Before the Court for determination is the amount of the sanctions to be imposed upon the plaintiffs in these two proceedings, Hukumad Chaudhry and Haridas Shah, and their attorney, Manojkumar D. Patel, Esq. The reasons which impelled this Court to determine sanctions to be appropriate are fully set forth in this Court’s Opinions of November 27,1985. 56 B.R....
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MEMORANDUM AND ORDER This matter is before the court on a Motion for Relief from Stay filed by Metropolitan Federal Bank (Metropolitan) on March 28, 1986. The debtor, JoAnne Ash-ton (Ashton), objects to the requested relief and claims that her Chapter 13 Plan adequately addresses the installment arrearag-es due Metropolitan. The motion came on for hearing on May 6, 1986. From the evidence produ...
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DECISION GRANTING PLAINTIFF’S AND THIRD PARTY DEFENDANT’S MOTIONS TO DISMISS DEFENDANT’S COUNTERCLAIMS AND THIRD PARTY COMPLAINT Plaintiff, Home Federal Savings and Loan Association, has filed the present complaint to determine dischargeability of a secured debt owed to it by defendant, a Chapter 7 debtor (hereinafter “debtor”). Plaintiff alleges that the debt is nondis-chargeable because...
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OPINION The query posed is whether we should grant relief from the automatic stay to a secured creditor on its third motion for relief from the automatic stay in the instant case, where the first two motions were withdrawn after the debtors’ tender of arrearages and where the debtors have again tendered arrearages on the pending motion. For the reasons expressed herein we will conditionally gra...
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OPINION The issue to be determined in the case at bench is whether the ruling on intervention issued in Official Unsecured Creditors’ Committee v. Michaels (In Re Marin Motor Oil, Inc.), 689 F.2d 445 (3d Cir.1982), 1 was “overruled” by the later adopted Bankruptcy Rules which took effect on August 1, 1983. We conclude that it was not “overruled,” since the decision may be harmonized with th...
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MEMORANDUM OPINION AND ORDER AS TO ALLOWANCE OF INTERIM COMPENSATION OF ATTORNEYS AND ACCOUNTANTS Presently before the court is the Application of counsel for Chapter 11 debtor EES Lambert Associates (“Lambert”) for payment of interim compensation. Such Application was met by the strenuous objection of the United States Department of Housing and Urban Development (HUD), whose cash collate...
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MEMORANDUM AND ORDER The matter before the court is a Motion to Avoid Lien, filed April 17, 1986, by the debtors, George and Dianne Laber (Debtors). The Debtors allege that the lien held by First State Bank of New Rockford (Bank) is a nonpossessory, nonpurchase-money security interest, avoidable pursuant to 11 U.S.C. § 522(f). On April 21, 1986, the Bank filed its response in resistance to the Deb...
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DECISION AND ORDER FOR VIOLATION OF STAY This matter is before the Court at this time on the complaint of plaintiff, who is also the debtor, for an order finding defendant in contempt of court for violating the automatic stay of 11 U.S.C. 362(a) and for judgment for actual and punitive damages for defendant’s wanton, malicious and intentional conduct, costs of the action and reasonable attorney...
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64 B.R. 92 (1986) In the Matter of Ronald Lee VANASDALE and Mary Ellen Vanasdale, Debtors. Bankruptcy No. 685-00255. United States Bankruptcy Court, N.D. Ohio. June 5, 1986. *93 James R. Moats, Esq. of Kincaid, Palmer and Randall, Columbus, Ohio, for BancOhio Nat. Bank. Mary Ann Rabin, Cleveland, Ohio and James W. Pry, II, Spurlock, Sears, Pry and Griebling, Bucyrus, Ohio, for debtors. Thomas J. ...
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MEMORANDUM DECISION This case is before the Court on two motions: 1) A motion to dismiss the Chapter 11 case filed on behalf of BankWest, N.A., and joined by J.I. Case Credit Corporation and Deutz-Allis Credit Corporation; and 2) A motion for appointment of a trustee filed on behalf of the debtor. A hearing was held on April 21, 1986. William Chester filed a Chapter 11 petition in ba...
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MEMORANDUM The issue presented is whether a recording contract is an “executory contract” within the meaning of 11 U.S.C. § 365 (1982 ed., Supp. II 1984) where by subsequent agreement the parties have terminated the performer’s obligations and the record company’s only remaining responsi *867 bility is to pay royalties. I hold that this “terminated” recording contract has bee...
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MEMORANDUM DECISION AND ORDER David C. Spencer, a principal of the debt- or, Barefoot Sports, Inc., claims that involuntary payments he made to the IRS constitute a priority claim in bankruptcy. The trustee, William J. Rameker objects. On September 29, 1983, a proof of claim in the amount of $3,895.31 was filed on behalf of the IRS for unpaid withholding taxes. There was an error in the proof o...
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MEMORANDUM DECISION On April 24, 1985, the debtor, Edward Spohn (“Spohn”), filed his chapter 13 petition and plan. Community First Bank (“the bank”), which holds a mortgage on certain of the debtor’s real estate, filed a secured claim for $86,899.55 on May 29, 1985. The debtor’s plan proposed to surrender the real estate to the bank in satisfaction of $83,464.25 of a claim of $84,-007.51....
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64 B.R. 82 (1986) In re Tami E. POCHEL, Debtor. DOMINO'S PIZZA, INC., Plaintiff, v. Tami E. POCHEL, Defendant. Bankruptcy No. 385-01088, Adv. No. 86-7022. United States Bankruptcy Court, C.D. Illinois. June 4, 1986. *83 Anthony H. Hart, Bloomington, Ill., for plaintiff. David Fint, Bloomington, Ill., for defendant/debtor. OPINION LARRY LESSEN, Bankruptcy Judge. In this adversary proceeding, the ...
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ORDER DENYING PLAINTIFF’S MOTION TO COMPEL TESTIMONY OF A CERTAIN WITNESS AND DEEMING AND DECREEING CERTAIN DECLARATIONS AGAINST INTEREST TO BE ADMISSIBLE AND ACCORDINGLY SETTING ADJOURNED HEARING In this action, the plaintiff seeks a decree of nondischargeability of a certain indebtedness to it by reason of the defendant David Wayne Norris’s having deposited a check in his account with the plain...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DETERMINING RATE OF INTEREST TO BE PAID TO OBJECTING CREDITOR Now before the court' as a result of the hearing of March 26, 1986, in St. Joseph, Missouri, is the question of the amount of postbankruptcy interest which is to be granted the secured creditor. Prior to the hearing on the abovementioned date, the parties stipulated to the oversecured st...
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The matter presently before the Court is a complaint filed by the debtor-in-possession, Campbell Enterprises, Inc., (Debtor) seeking an order temporarily and permanently enjoining the defendant, the United States of America Department of Treasury, Internal Revenue Service (IRS), from assessing or collecting, or attempting to assess or collect a 100% tax penalty, pursuant to 26 U.S.C. § 6672, ag...
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MEMORANDUM OPINION AND ORDER ALLOWING PARTIAL SUMMARY JUDGMENT The matter before the court is the motion for summary judgment filed by defendant-intevenor, Columbia Bank for Cooperatives. A hearing was held in Raleigh, North Carolina on May 20, 1986. The plaintiffs, The Pillsbury Company, Monsanto Company, Archer Daniels Midland Company, CBP Resources, Inc., Exxon Corporation, Union ...
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DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (F), in which the plaintiff, Chapter 7 Trustee, seeks to recover as a preference a portion of the funds paid to the defe...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court pursuant to the Order of this Court dated December 10, 1985, wherein the Debtors were Ordered to submit a final amended Schedule of Current Income and Current Expenses (hereinafter referred to as the Schedule). The Debtors have submitted such an amendment along with the explanations they wish the Court to consider. The Court h...
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MEMORANDUM DECISION Introduction This matter is before the Court on a complaint for nondischargeability of debt *853 filed on behalf of the City of Colton (“City”), Colton, South Dakota, by Attorney Rick A. Yamall on February 19, 1985. The City substantively alleges that: 1) the state court judgment which it received against the debtor is for “willful and malicious i...
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MEMORANDUM DECISION Introduction This matter is before the Court on an objection to claimed exempt property filed on behalf of the City of Colton (“City”), Colton, South Dakota, by Attorney Rick A. Yarnall on February 19, 1985. The City substantively alleges that: 1) the debtor’s May, 1984, filing of a government land patent, which was issued to an unrelated remote grantor almost...
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MEMORANDUM DECISION Introduction This is before the Court on a motion to vacate the Court’s previous order and a motion for new trial filed on behalf of Russell and Norma Carver (“debtors”) by Attorney Dennis W. Finch on February 11, 1986. 1 This matter was originally before the Court on a motion for relief from stay filed on behalf of Howard L. and Reino W. Heikkila (“Hei...
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*845 MEMORANDUM DECISION Introduction This matter is before the Court on an objection to claimed exempt property filed on behalf of the City of Colton (“City”), Colton, South Dakota, by Attorney Rick A. Yarnall on February 19, 1985. The City substantively alleges that: 1) the debtor’s May, 1984, filing of a government land patent, which was issued to an unrelated remote ...
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MEMORANDUM DECISION Introduction This matter is before the Court on a complaint for nondischargeability of a debt filed on behalf of the City of Colton (“City”), Colton, South Dakota, by Attorney Rick A. Yarnall on February 19, 1985. The City substantively alleges that: 1) the debtor’s sale and subsequent repurchase of her interest in certain real property in which the City had previously f...
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MEMORANDUM OPINION AND ORDER RE: MOTION TO DISMISS OR FOR RELIEF FROM THE AUTOMATIC STAY This cause is before the Court on the motion of David Broyles and John Ball (Movants) who seek dismissal of the Chapter 11 Petitions, relief from the automatic stay as to their claims, or appointment of a trustee. The gist of the complaint is threefold: one, should the Court dismiss these two pet...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Merchants Mutual Insurance Company (“Merchants Mutual”) to confirmation of the Chapter 13 plan of the debtors in the above-styled case, Nassib and Amal Kazzaz (the “debtors”). A hearing was convened on the confirmation of the debtors’ plan and on Merchants Mutual’s objection thereto on April 3, 1986, at the conclusi...
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*258 ORDER THIS MATTER is before the Court on the Trustee’s Objection to Claimed Exemption, in which he objected to the debtors’ claimed right to an exemption for guns and household goods and to debtor Debra Greenlee’s claim right to an exemption for mechanics tools as tools of the trade. The debtors filed a response to the objection stating that Mrs. Greenlee used the mechanics tools in assi...
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MEMORANDUM DECISION The plaintiff/judgment creditor seeks exception from discharge under 11 U.S.C. § 523(a)(2)(B) of its claim in the amount of $190,557. The debtor has answered and the matter was tried on May 6. Section 523(a)(2)(B) requires that plaintiff prove that the debtor obtained credit by the use of a written statement: (i) that is materially false; (ii) respecting the debtor’s or ...
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ORDER ON MOTION SEEKING ORDER CITING MALKA ISAAK FOR CONTEMPT AND MOTION TO SUSPEND EFFECT OF ORDER ON MOTION TO LIFT STAY, AND MOTION TO IMPOSE SANCTIONS AGAINST DEBTOR AND DEBTOR’S COUNSEL AND MOTION TO DISMISS THE MATTER under consideration in this Chapter 11 case is a Motion Seeking Order Citing Malka Isaak for Contempt. The Motion is filed by Joseph L. Cabella, a creditor in the above-caption...
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MEMORANDUM OPINION This matter is before the Court on Production Credit Association (PCA) of Southern New Mexico’s suit for Declaratory Judgment to Determine the Extent of and Validity of Liens and Interests and for Clarification of the Cash Collateral Order and Reclamation of Excess Proceeds. This memorandum opinion addresses the suit for declaratory judgment. The issues before this...
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PROCEDURAL POSTURE PROCEDURAL POSTURE On June 26, 1984 the Plaintiff, John T. Ducker (Trustee for the bankruptcy estate of Bridges Enterprises, Inc.), filed a complaint to recover a preferential transfer or to compel turnover of estate property against the defendants, Fairmeadows II *301 (An Ohio Limited Partnership), Armstrong Companies, Michael J. Boylan and Snowden Ar...
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*556 MEMORANDUM OPINION In this adversary proceeding, the plaintiffs have filed a complaint requesting that the debt owed to them by the Chapter 7 defendants-debtors be determined to be nondischargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A). The complaint also requests that the debtors be denied a discharge pursuant to § 727(a)(3) of th...
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ORDER DISMISSING CASE The motion (C.P. No. 6) of a secured judgment creditor to dismiss this chapter 11 case was heard on May 27. Movant has argued that the petition was filed in bad faith to frustrate a foreclosure sale. I do not find, however, that the debtor had no intention nor possibility of salvaging any value from this property nor that it filed solely for the purpose of obstructing an...
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ORDER ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY AND/OR ADEQUATE PROTECTION PAYMENT THE MATTER under consideration in this Chapter 11 case is the Motion for Relief from the Automatic Stay filed by Crossland Savings, FSLA (Crossland). The Court has considered the record, the testimony of witnesses, and the argument of counsel, and finds as follows: University Greens, Inc., the Debtor in the above...
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ORDER DENYING MOTION FOR CONTINUANCE AND RESETTING HEARING OF THE MERITS OF THE ADVERSARY ACTION On March 24, 1986, the plaintiff debtors filed the within action for a determination of the “nature and extent of tax liability” to each of the agencies above named as defendants. Thereafter, on April 28, 1986, the clerk filed and distributed its written order (which the undersigned had signed four day...
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DECISION ON OBJECTIONS TO DISCHARGE The plaintiff, Scarsdale National Bank and Trust Company, has filed a complaint *512 against the debtor, Lorraine Lubin, which seeks to deny her discharge in bankruptcy under U.S.C. 11 § 727(a)(2), (3), (4), and (5). The debtor having denied the allegations in the complaint the matter was set down for trial resulting in the following: ...
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DECISION AND ORDER ON MOTION TO ABSTAIN OR DISMISS This Chapter 11 case was filed simultaneously with another, the debtor in which is named Channel 64 Limited Partnership (hereafter “L.P.”). An order for joint administration of the two cases has been entered. Channel 64 Joint Venture (hereafter “Joint Venture”) was formed pursuant to an Agreement dated as of April 16, 1984. The Agreement was ...
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DECISIÓN AND ORDER This matter is before the court, after a trial and memoranda of counsel, upon the complaint of Miami Valley Production Credit Association (“PCA”), which alleges that the Chapter 13 debtors, Charles P. Klipfer, Jr. and Cynthia A. Klipfer, wrongfully disposed of crops, which were subject to a security interest in favor of PCA, by selling the crops to two grain elevators w...
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MEMORANDUM AND RECOMMENDATION TO DISTRICT COURT FOR WITHDRAWAL OF REFERENCE AND ORDER TO CLERK The Bankruptcy Court hereby recommends, on its own motion, that the District Court on its own motion, pursuant to 28 U.S.C. § 157(d), withdraw the reference of this Bankruptcy matter and all adversary proceedings filed in connection with this matter, except for certain matters and proceedings on...
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ORDER ON MOTION TO DISMISS THE MATTER under consideration in this Chapter 11 case is a Motion to Dismiss filed by Palomino Ventures, Raul C. Palomino, Jr., and Roger 0. Rodriguez (Ventures), creditors in the above-styled case. Ventures seek an order from this Court dismissing the bankruptcy case on the grounds that first, the Debtor, the Jay M. Weisman Irrevocable Children’s Trust of 1981...
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MEMORANDUM OPINION This case is before the court upon the “Application for Determination of Secured Claim of Metropolitan Life Insurance Company Pursuant to 11 U.S.C. § 506” filed by the first mortgagee lienholder on February 11,1986. The lien in question is admittedly valid and covers the Chapter 11 debtor’s principal asset, i.e., a major office building located in Dubuque, Iowa. Th...
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MEMORANDUM OPINION AND ORDER In this action, the trustee Eric C. Rajala, seeks a determination as to whether or not the debtor’s interest in an employer-created pension plan (ERISA) is non-exemptible property of the debtor’s estate. The debt- or, represented by Harry G. Miller, opposes the trustee’s claim. NATURE AND FACTS OF THE CASE Debtor James Henry Ralstin, is a medical doc...
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OPINION On consideration of the motion seeking relief from the automatic stay filed by Sears, Roebuck and Company, hereinafter referred to as Sears; response to said motion filed by the Debtor, George Ellis Moody; all parties being represented by their respective attorneys of record; and the Court having heard and considered same, hereby finds as follows, to-wit: I. The Court has jurisdicti...
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Weiss-Wolf, Inc. (“Debtor” or “Weiss-Wolf”), the debtor and debtor-in-possession in this Chapter 11 case commenced on May 19, 1982, is a New York corporation which has in the past been engaged in the business of buying, selling and manufacturing diamonds. On July 21, 1982, the Debtor commenced this adversary proceeding against the three defendants, Israel Discount Bank Limited (“IDB”), Union Ba...
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OPINION The nub of the controversy in the case at hand is the size of an administrative expense owing to a debtor’s landlord due to the debtor’s detention of the leasehold after the filing of the petition. On the basis of the facts presented, we conclude that the landlord is entitled to an administrative expense in the amount of $11,247.76. We set forth the facts of the case as follo...
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MEMORANDUM OPINION Presently before this Court is a Complaint to Discharge an educational loan pursuant to 11 U.S.C. § 523(a)(8)(B). Based upon the testimony presented and the applicable law, we find that the debt is not discharged. The Plaintiff, Paul E. Marion, Jr., was discharged under § 727 of the Bankruptcy Code on November 28, 1983. There remains outstanding, an educational loan held by...
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MEMORANDUM Asserting rights as a third party beneficiary under a stock purchase agreement, the trustee seeks judgment against the defendant, the sole stockholder and former president of the debtor, in the amount of $81,229.81. Further, the trustee alleges a fraudulent transfer and seeks an additional judgment against the defendant in the amount of $154,350.80, plus prejudgment interest. ...
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MEMORANDUM OPINION AND ORDER This cause came on to be heard on May 20, 1986 upon the Plaintiffs complaint seeking to determine the dischargeability of the Debtor’s debt, or, in the alternative, to require her compliance with her original “statement of intentions” as to this debt. At issue is whether this debt should be excepted from discharge pursuant to 11 U.S.C. § 727(a)(2) and § 523(a)(6), a...
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This is to prevent control of the Court’s docket by the parties. If this is not done, in a setting of thousands of bankruptcies, 500 persons filing in the Norfolk and Newport News Divisions during the month of April, this Court, a court, loses control of its docket. On March 24, 1986, the trustee for Virginia Store Fixtures, Inc., filed a complaint for recovery of property. Summons and Notice of T...
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MEMORANDUM OPINION THIS MATTER came on for hearing before the Court on a Motion filed by the United Bank of Brighton seeking an order requiring the Trustee to pay over cash collateral in which the Bank claimed a security interest. An objection to the Bank’s request was filed by American Motorists Insurance Company by its managing general agent, A1 Barker Insurance. The case was presented on sti...
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MEMORANDUM OPINION AND ORDER This adversary proceeding was commenced by OmniBank Aurora (hereinafter referred to as “the Bank”) against the *239Debtors on the complaint of the Bank seeking a determination that the Debtors’ obligations to the Bank are nondischargeable. The evidence at the hearing disclosed that in February 1985, the Debtor, Huxley P. Konopka, applied at the Bank for a guaranteed c...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR ASSESSMENT OF PUNITIVE DAMAGES The plaintiff filed a claim in the form of a complaint in this adversary proceeding, alleging that she entered into an agreement with the defendant for the purchase of a business and that the defendant owes her money on a promissory note given by the defendant in connection with that transaction. The defendant objected t...
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ORDER David Eugene Foster and Victoria Jean Foster filed their joint chapter 13 petition on July 31, 1985 in response to a mortgage foreclosure action initiated by the Federal Land Bank of Louisville on June 18, 1985. Their chapter 13 plan provides essentially that the secured creditors will receive the value of their collateral, while the unsecured claims share in $3,600, to be paid through th...
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MEMORANDUM OPINION WITH REGARD TO USE OF CASH COLLATERAL Question: Is the cup half full or half empty? Answer: yes. The debtor in possession in this dairy farm Chapter 11 case strenuously argues that milk is not the product of a cow. Since about half of the published court opinions dealing with this logically preposterous proposition have adopted it, it must be conceded that the argu...
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ORDER On December 18, 1985, Alan E. Baquet, the Debtor, filed a Chapter 7 Petition in Bankruptcy. Thereafter the Debtor’s mother, Gladys Baquet (Gladys) filed a motion for relief from the automatic stay provisions under Section 362 of the Code. An unsecured creditor, Maurice Klabunde, as a party in interest filed objections to the motion. Hearing on the motion for relief from stay was hel...
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MEMORANDUM OPINION This matter was considered by the Court upon a stipulation of facts submitted by the parties on March 6, 1986, and briefs filed by the parties. Findings of Fact The debtors executed a variable rate Note and granted American Charter a Deed of Trust conveying certain real property, both on July 17, 1981. The real property is the principal residence of the debtors. Ameri...
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DECISION & ORDER 237 Main Street Corp. (hereinafter “landlord”) has moved for an order for relief from the automatic stay under 11 U.S.C. § 362(d). The landlord seeks to commence eviction proceedings against the debtor in State court due to the debtor’s failure to pay its post-petition rent for the months of December, 1985, and January, 1986. The debtor counters that its rent obligation h...
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OPINION AND ORDER ON THE TRUSTEE’S MOTION FOR PUBLIC SALE OF PERSONAL PROPERTY AND OBJECTIONS FILED BY ELDER SALES AND SERVICE, INC. AND BY FIRST NATIONAL BANK OF COCHRANTON This 29th day of May, 1986, upon consideration of the Trustee’s MOTION FOR PUBLIC SALE OF PERSONAL PROPERTY FREE AND DIVESTED OF LIENS, and the Objection thereto filed by Elder Sales and Service, Inc., and the Objecti...
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MEMORANDUM OPINION In December, 1981, John Wilmont Hunt (“plaintiff”) accepted a position of employment with STM Corporation. He was to begin work on March 1, 1982. Mr. Hunt’s new job required the relocation of his wife, Ann Fisher Hunt (“plaintiff”), and his two children, from their residence in Midland, Texas, to Houston, Texas. Plaintiffs immediately placed their Midland home on t...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the debtor in the above-styled case, Brenda Johnson Godley (“Godley”), pursuant to 11 U.S.C. § 350(b) and Bankruptcy Rule 5010 to reopen her case so that she may add two creditors omitted from her original schedules, the creditors being Fruehauf Corporation (“Fruehauf”) and Ford Motor Credit Corporation (“FMCC”). A hea...
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ORDER GRANTING STAY RELIEF An Indiana trust company seeks stay relief under 11 U.S.C. § 362(d) in order to set off against future distributions payable to this chapter 7 debtor the advances made by the trustee to the debtor from the corpus of the trust, which total $32,970. The trust has already been determined to be a valid and enforceable spendthrift trust, and, therefore, it is not property ...
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This adversary proceeding came on before the undersigned United States Bankruptcy Judge for trial at St. Paul, Minnesota, on April 24, 1986. Plaintiff appeared by its attorney, Rick D. Johnson, Assistant Attorney General. Defendant Steven Jacob Freeh (hereinafter “Debtor”) appeared personally and by his attorney, Freya 0. Hanson. Upon the evidence adduced at trial, trial briefs, arguments of co...
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*221 ORDER On January 9, 1984, the Plaintiff filed a complaint seeking an order of non-dis-chargeability under Section 523(a)(6) of the debt owed to him by the Debtor. After answer, trial of the cause was deferred pending conclusion of a state court action to allow Plaintiff to liquidate his damages. On April 15,1986, judgment was entered in state court in favor of the Plaintiff and against t...
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DECISION AND ORDER DETERMINING APPLICATIONS FOR FINAL COMPENSATION AND REIMBURSEMENT OF EXPENSES A hearing was held by this court on March 16, 1986 to consider four applications for allowance of final compensation and reimbursement of expenses. The acrimony engendered by this case warrants a full exposition of the factors which the court considered in fixing such compensation. Said factor...
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ORDER This matter is before the Court on its own Order to Show Cause issued sua sponte on April 21, 1986, directing the Debtors to appear and show cause why their Chapter 7 petition should not be dismissed pursuant to the substantial abuse provision of section 707(b) of the Bankruptcy Code. A hearing was held on May 14,1986, and the Debtor, David Gaukler, filed his Affidavit in response to ...
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DECISION GRANTING THE TRUSTEE’S APPLICATION FOR APPOINTMENT AS COUNSEL FOR THE TRUSTEE NUNC PRO TUNC AND GRANTING IN PART AND DENYING IN PART THE AMENDED REQUESTS FOR COMPENSATION BY THE TRUSTEE AND THE ATTORNEY FOR THE TRUSTEE, AND DENYING COMPENSATION TO THE ATTORNEY FOR THE DEBTOR This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this *476 court ...
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*807 OPINION The matter for resolution is whether we should grant a mortgagee’s motion for relief from the automatic stay under 11 U.S.C. § 362(d) of the Bankruptcy Code (“the Code”) in order to allow it to foreclose its mortgage on the basis that the debtor has failed to make adequate periodic payments on the debt. For the reasons outlined below, we will grant the motion for relief from the ...
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MEMORANDUM DECISION By their motion the debtors seek to avoid a mortgage on their cottage home under section 506(d) of the Bankruptcy Code. The cottage is located on leased land adjacent to the Rock River north of Janesville. In 1976 the debtors contracted to purchase the cottage and entered into a five-year lease for the land. The lease was re-executed in 1981 for an additional five-year term....
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ORDER GRANTING MOTION OF JOHN E. FOWLER FOR RELIEF FROM STAY The matter before the Court is the motion of JOHN E. FOWLER (“FOWLER”) for relief from the automatic stay of 11 U.S.C. § 362(a). The Court, having heard the testimony and examined the evidence presented, having observed the candor and demeanor of the witnesses, having considered the arguments of counsel, including memoranda of l...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER DENYING DEBTOR’S OBJECTION TO ALLOWANCE OF CLAIMANTS’ CLAIM AND ACCORDINGLY ALLOWING CLAIMANTS’ CLAIM The matter of the debtor corporation’s objection to the claim of the claimants for rental of certain office equipment1 came on before the bankruptcy court for hearing on April 30, 1986, whereupon the claimants appeared by counsel, Robert B. Mine...
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■MEMORANDUM The trustee in bankruptcy brought this suit to recover an alleged preferential payment to the defendant, Cannon’s, Inc. Cannon’s sells clothing and other consumer goods to consumers. It allowed the debtor to make purchases on account. The debt eventually became seriously past due. In December, 1984, the debtor directed that $957.45 of a loan to her be paid to Cannon’s, Inc. Th...
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MEMORANDUM OPINION Came on for oral argument the Finkel-stein group’s motion for partial summary judgment on the liability aspect of their proof of claim which was filed on November 21, 1984. The issue is whether these debtors’ are judicially precluded from challenging the underlying gas purchase agreement when they applied and obtained a court order allowing the debtor to reject the exec...
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MEMORANDUM ORDER PROHIBITING PAYMENT OF SEVERANCE BENEFITS AND MEDICAL INSURANCE PREMIUMS AS AN ADMINISTRATIVE EXPENSE Debtor, Rawson Food Services, Inc., filed for relief under 11 U.S.C. Chapter 11 on February 19, 1986, and has been operating as a debtor-in-possession. In conjunction with the filing of the petition, debtor filed a motion for authorization to sell substantially all its assets t...
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MEMORANDUM OPINION Rare is the case in which a bankruptcy court will completely deny a discharge to a *199 bankrupt petitioner. Such an extraordinary measure is justified, we have held, “only where there is a preconceived scheme to thwart the rights of creditors and the processes of this court, or such a cavalier disregard of duty as to constitute the legal equivalent of such...
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MEMORANDUM OPINION Here an objecting creditor urges us to formulate a new common law rule which would radically alter Kentucky’s statutory grant of homestead exemptions. The proposed rule would have us measure the homestead not by the four comers of the deed, but by the fence around the curti-lage. For reasons both practical and legal we reject the argument. The facts may be summarized in...
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MEMORANDUM This matter is before the Court on an objection by the debtor, Johnson Steel & *204 Wire Company, Inc. (the “Debtor” or “Johnson Steel”) to claims filed by John H. Gaucher, William A. Biliouris, Joseph G. Kirkpatrick, William P. Simmerman and Robert L. Brown (collectively the “Claimants”). The Claimants have filed motions for partial summary judgment which have bee...
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ORDER The above-titled case came before the undersigned United States Magistrate, to whom it has been assigned for trial and all other proceedings in accordance with provisions of Title 28 U.S.C. § 636(c), upon post-trial motions. The Court has attempted to limit recitation of fact and procedural history to that which is essential to determination of the motions. This Order is concerned with moti...
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MEMORANDUM AND ORDER The plaintiff, the United States of America f/b/o Commodity Credit Corporation (C.C.C.), commenced the instant action on December 2, 1985, seeking to have the obligation owing it by the Debtors declared non-dischargeable by virtue of Debtor, Gary Vandrovec’s plea of guilty in United States District Court to conversion in violation of 15 U.S.C. § 714m(c) and by virtue of the...
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MEMORANDUM OPINION This matter is before the Court on the Motion of Debtor, LOUIS ANGEL PAGAN, for enforcement of the homestead exemption claimed in his Schedules in the above-captioned Chapter 7 proceeding. A hearing was held on February 27, 1986, at which time Debtor, Debtor’s counsel and the Trustee appeared. The parties have agreed to submit the matter to the Court for a determination...
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OPINION The primary issue for consideration in the instant case is whether 11 U.S.C. § 108(b) of the Bankruptcy Code (“the Code”) may give a debtor an additional 60 days in which to exercise an option to extend a lease of commercial realty notwithstanding 11 U.S.C. § 365(d)(3) of the Code. For the reasons stated below we conclude that § 108(b) may extend the time for exercising the option...
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VOLINN, Bankruptcy Judge: Brutoco Engineering & Construction Co., Inc. (“Brutoco”) is the holder of a disputed administrative expense claim of over $1 million. Brutoco appeals from the bankruptcy court’s overruling of its objections to the plan and the order confirming the debtor’s plan. The issue before us is whether the bankruptcy judge erred in confirming the plan without holding a...
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The appellant, Richard C. DeLesk, contends that neither he nor his attorney, Suzanne DeLesk, received notice from the bankruptcy court of the deadline for filing a complaint to determine nondischargeability in the Chapter 7 bankruptcy case of the appellee, Herbert B. Rhodes. DeLesk’s complaint was filed six months late. The bankruptcy court held it was untimely filed under BR 4007(c), and denie...
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MEMORANDUM DECISION Four judgment creditors seek exception from discharge of their judgments under 11 U.S.C. § 523(a)(2)(A) or (6). There is no evidence in the record before me to support the allegation under § 523(a)(6). Alternatively, plaintiffs have opposed the debtor’s discharge with general allegations under § 727(a), but at trial plaintiffs acknowledged that they had no basis to oppose the d...
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MEMORANDUM OPINION Drinks are easier to mix than business and friendship, these litigants, former friends and barroom partners, have painfully learned. The lesson arises in the context of a nondischargeability complaint under the Bankruptcy Code. * * * In late 1983 Wayne Roeder and Don Keeling opened a bar and lounge business known as “Captain Willys” under the corporate name of...
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MEMORANDUM AND ORDER Introduction This case has thrown this Court into one of the worst legislative quagmires caused by the 1984 Amendments to the Bankruptcy Code. At issue before this Court is the continued validity of Bankruptcy Rule 9027 and 28 U.S.C. §§ 1471 and 1478 and the question of whether or not there exists a proper procedure in the Western District of Louisiana under the ...
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MEMORANDUM This matter is before the Court on a Motion by the Plaintiff for Assertion of Subject Matter Jurisdiction and a Demand by the Defendant for a Jury Trial. A hearing was held before Judge Paul W. Glen-non on both of those matters on February 18, 1986, at which time they were taken under advisement and the parties were asked to submit briefs on the issues. Judge Glennon retir...
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OPINION LIABILITY OF MEMBERS OF THE CREDITORS’ COMMITTEE This lawsuit arises from the bankruptcy case of Tucker Freight Lines, Inc., which is still pending, and from various proceedings in that case before this Court. The defendants, Elizabeth Roberto, Walter L. Wittenberg, Durwood Young, Lawrence Parrott, Kevin Cash, William A. Nolan, Michael L. Fayette, Nancy Loomis, Lonnie Wi...
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MEMORANDUM DECISION This chapter 11 trustee seeks $1.6 million from a Miami bank as a fraudulent transfer under 11 U.S.C. § 548(a) made to it as the “initial transferee” or an “immediate or mediate transferee of such initial transferee” within the scope of § 550(a). The bank has answered and the matter was tried on May 8. I conclude that the trustee is entitled to no relief from the bank. The...
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MEMORANDUM DECISION AND ORDER RE: APPLICATION FOR REIMBURSEMENT OF ATTORNEYS’ FEES On October 24, 1985, the attorneys for Bank of Honolulu (“Applicant”) filed its Application for Reimbursement of Attorneys’ Fees (“Application”) seeking $11,-548.00 in fees, $463.85 in Hawaii excise tax, and expenses of $1,808.09 for a total award of $13,819.94. A memorandum in opposition to the Application was fil...
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MEMORANDUM DECISION AND ORDER RE: APPLICATION FOR APPROVAL OF PAYMENT OF ADMINISTRATIVE EXPENSES On April 23, 1985, the attorneys for the Receiver, Chaney Brooks & Co. (“Applicant”) filed an Application for Approval of Payment of Administrative Expenses. A memorandum in support of the Application was filed on January 7,1986, and a hearing was held on January 10, 1986. At that hearing, the...
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MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS COMPLAINT This matter came before the court on the debtors’ Motion to Dismiss the Complaint to Determine Dischargeability filed by Loretta Purcell and Richard Ryan. For the reasons stated below, the Motion to Dismiss the case is denied, but the Complaint is stricken and plaintiff given time and leave to cure the pleading deficiencies descr...
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MEMORANDUM AS TO ORDER DENYING TALMAN’S MOTION TO MODIFY STAY Creditor Taiman Home Savings & Loan moved post confirmation to modify the automatic stay. For reasons set forth below that motion has been denied. FACTUAL BACKGROUND Debtors filed their chapter 13 petition on May 7, 1985, and their original chapter 13 Plan on July 18th. The original Plan provided inter alia ...
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Memorandum and Order This cause is before the Court on the motion of the debtor, Michigan Beach Apartments, an Illinois Limited Partnership (“debtor”), for authority to pay its attorneys a retainer fee pursuant to § 328 of the Bankruptcy Code. (11 U.S.C. § 328). The Department of Housing and Urban Development (“HUD”), the only secured creditor, objects. The debtor is the benefici...
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MEMORANDUM OPINION This matter is before the court on a complaint for declaratory relief filed by the debtor herein. There being no dispute as to the factual matters in this case, the parties agreed to its submission on stipulations and memoranda. Upon consideration of all the facts and arguments of counsel, the following shall constitute the findings and conclusions of the court. *72 Facts This...
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OPINION PREFERENTIAL TRANSFER AND DEFENSES The trustee seeks to avoid a transfer under 11 U.S.C. § 547(b). The defendant transferee relies upon the defenses set forth at § 547(c)(1) and (2). The parties agreed to resolve the dispute upon briefs and a stipulation of facts. That stipulation provides in essence as follows. It was the former practice of Tucker Freight Lines, (“...
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MEMORANDUM OPINION REGARDING MOTION OF NEW CENTURY BANK TO BE PLACED ON UNSECURED CREDITORS COMMITTEE Now before the Court is the motion of New Century Bank (referred to as the bank) to be appointed as a member of the Official Unsecured Creditors’ Committee in this Chapter 11 case. The bank possesses a security interest in various estate property, but the value of that property is far les...
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ORDER At Butte in said District this 21st day of May, 1986. The Plaintiff brought this adversary proceeding against the Debtors seeking to declare her debt non-dischargeable under Section 523 of the Bankruptcy Code. After trial of the cause and submission of proposed Findings of Fact and Conclusions of Law, the Plaintiff has conceded that she has no enforceable claim against Color Processors,...
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MEMORANDUM OPINION RE ALLOWANCE OF ATTORNEY FEES UNDER SECTION 506(b) OF THE BANKRUPTCY CODE Facts The parties stipulated to the following: 1. On November 11, 1985, the Omaha National Bank as Trustee (ONB) filed an application for reimbursement and payment of fees and costs incurred and on December 16, 1985, filed a corrected application. 2. Debtor filed his voluntary p...
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MEMORANDUM OPINION This matter came before the court upon the plaintiff-creditor’s “complaint to deny discharge.” The complaint is actually one *179 which objects to the dischargeability of a debt and the court will treat it as such. The facts are agreed upon. One of the debtors herein was convicted of first degree theft in 1983. The creditor herein was the victim. As a condition of probati...
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OPINION The defendant in this adversary complaint moves for its dismissal, alleging that we lack subject matter jurisdiction. Based on the rationale expressed below, we conclude that we have the requisite jurisdiction and will therefore deny the motion. The facts of this case are as follows: 1 The debtor is a manufacturer of computers and related equipment. A major portion...
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MEMORANDUM OPINION William Warren Bell, Jr. filed suit for divorce in the 245th Judicial District Court of Harris County, Texas in 1979, against his wife of 26 years, Janice D. Bell. They entered into a written agreement incident to divorce (“agreement”) dated June 28, 1980, and the court with jurisdiction entered a final decree of divorce on August 4, 1980. Two years later, plaintif...
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ORDER ON APPLICATION FOR ALLOWANCE BY PROFESSIONALS This is a dismissed Chapter 11 case and ordinarily the Order of Dismissal would have brought down the curtain on the long journey of Mandalay Shores Apartment Cooperative (Debtor), the Debtor, a journey which led nowhere. In retrospect, this fact should have been obvious from day one to all, including to this Court. No one, including thi...
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MEMORANDUM DECISION ON THE APPLICATION OF UNITED STATES TRUST COMPANY OF NEW YORK, SUCCESSOR INDENTURE TRUSTEE, FOR ALLOWANCE OF COMPENSATION AND DISBURSEMENTS AND FOR REIMBURSEMENT OF COUNSEL FEES AND DISBURSEMENTS On October 27, 1982, Revere Copper and Brass Incorporated (“Revere”) and a number of its subsidiaries (collectively, the “Debtors”), each filed a petition for reorganization u...
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ORDER The court previously held, 63 B.R. 780, that the debtor could not use Bankruptcy *785Code § 522(h) to avoid the lien of Marion Trust & Banking Company on $6,000 insurance proceeds. 11 U.S.C. § 522(h). Without avoiding the lien, the debtor could exempt the insurance proceeds only to the extent they were equity over and above the debts secured. The court left open the question of whether the ...
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ORDER CONFIRMING CHAPTER 13 PLAN I. FACTS Debtors Phillip and Judy Greer filed this joint Chapter 13 case on February 21,1986. They filed their Chapter 13 statement and proposed plan on the same date. Mr. Greer is a staff sergeant in the United States Marine Corps, in which he has served for eighteen years. Mrs. Greer is a secretary/office manager at Jacoby and Meyers Law Offices, wh...
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OPINION AND ORDER Crossland Savings Bank, FSB (“Cross-land”) having moved this Court pursuant to Section 362(d) of the United States Bankruptcy Code, 11 U.S.C. § 362(d), for an Order seeking to terminate the automatic stay imposed pursuant to Section 362(a) of the Bankruptcy Code, and for conversion to Chapter 7 pursuant to Section 1112 of the United States Bankruptcy Code, 11 U.S.C. § 11...
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MEMORANDUM OPINION I. INTRODUCTION At issue is an action for declaratory relief initiated by the debtors regarding the rights of the parties under a loan contract. Specifically, the debtors request this court to declare that the 20% interest rate charged under the note violated the usury provisions of the California Constitution and Civil Code and that a $500 a day late charge i...
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MEMORANDUM OF DECISION Lenders Western Savings and Loan Company, Southern California Savings and Loan Association, and Beverly Hills Savings seek to establish that the operating revenues of Le Mondrian, Le Dufy, L’Ermi-tage, and Le Parc Hotels are cash collateral. The hotels are either owned by the Ashkenazy Enterprises, Inc. or by entities owned by Ashkenazy. The lenders hold promissory note...
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DECISION This matter is before the Court on the motion of one of the debtors, John F. Kein-ath, to avoid the judicial lien of Hyster Credit Union (Hyster) pursuant to Section 522(f)(1) of the Bankruptcy Code. It presents yet another encounter with a debt- *700 or’s attempts to recover wages garnished pursuant to Illinois statute. The increasing number of such cases invites th...
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MEMORANDUM OPINION This adversary proceeding was brought to avoid a quitclaim deed given by the debtors on March 25, 1983 releasing back to the defendants, the parents of the debtor Robert Lyle Zeman, all their rights, title *766 and interest to their farm property which they held and were operating under a contract for sale of the same originally entered into between the defendants and their...
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DECISION AND ORDER Heard on March 27, 1986, on the trustee’s objection to confirmation. In each of the above-captioned Chapter 13 cases, the debtors propose to cure mortgage arrear-ages “under the plan,” and to make current mortgage payments “outside the plan.” The trustee objects to confirmation, arguing that a plan which provides for the curing of a mortgage arrearage must also provide t...
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OPINION I This is an appeal from the trial court’s grant of summary judgment in favor of the Debtors in an adversary proceeding objecting to their discharge and seeking a determination that an obligation be declared nondischargeable. The objecting creditors, Billy and Irene Bell, appeal from this decision. The Bells contend they have raised an issue of material fact sufficient to sur...
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MEMORANDUM OPINION Landlord’s application for immediate payment of administrative expenses came on regularly for hearing on April 3, 1986. John R. Gardener appeared on behalf of the landlord, Alcan Building Products (“Al-can”). Bonnie L. McCarthy appeared on behalf of the Chapter 7 Trustee (“Trust *739 ee”). At the conclusion of said hearing, landlord’s application was denied...
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STATEMENT OF THE CASE On August 24, 1984, Macon Prestressed Concrete Co., a/k/a MPC, Debtor, filed its petition with this Court under Chapter 11 of the Bankruptcy Code. A committee of unsecured creditors (Creditors’ Committee) was appointed by the Court on September 4, 1984. On February 28, 1986, R. Wayne Duke (Movant), an unsecured creditor of Debtor, filed a “Motion for Conversion to Cha...
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ORDER This matter is before the Court on an agreed statement of facts upon Debtors’ complaint seeking to avoid a preference or set aside a fraudulent transfer. The agreed facts are that in 1980, W.H. Walters leased from M & H Rentals, Inc., pursuant to a written lease agreement, a 1978 Mack Truck and a 1980 Knight Trailer. Mr. Walters failed to make the payments required by the lease...
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MEMORANDUM DECISION This proceeding requires the Court to determine whether a dealer reserve account maintained by the Defendant Security Bank of Nevada is property of the debt- *761 or’s estate, whether the trustee has an interest in the account which would entitle her to turnover of the account balance, and whether the defendant may setoff a prepet-ition claim against the b...
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OPINION This is an appeal from an award of punitive damages, attorneys’ fees and costs entered pursuant to 11 U.S.C. § 303(i) in a case in which the parties stipulated that the Chapter 11 bankruptcy petition should be treated as involuntary and dismissed. I. A. The alleged debtor was Wavelength, Inc., a California corporation engaged in the business of designing, installing...
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MEMORANDUM OPINION Pending before the Court for decision following the hearing in the above-styled matter on April 21, 1986, is the issue of whether the January 26,1984 loan made by FirstSouth, F.A., (“FirstSouth”) to Lawson Square, Inc., the debtor, is usurious. In order to resolve that issue it must first be determined whether the Depository Institutions Deregulation and Monetary Contro...
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MEMORANDUM OPINION AND ORDER I. This case comes to be heard on the motion of the adversary defendant, Lottie Niemiec, (hereinafter “Niemiec”), for a directed verdict in her favor at the close of the case-in-chief of the adversary plaintiff, Pioneer Bank & Trust Company (hereinafter “Pioneer”). Pioneer commenced an adversary proceeding against the debtor, Niemiec, seeking to declare a...
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ENTRY ON TRUSTEE’S REQUEST FOR DETERMINATION OF WHETHER THE INTERNAL REVENUE SERVICE IS ENTITLED TO PRESENT VALUE PAYMENTS UNDER DEBTORS’ PROPOSED CHAPTER 13 PLAN 1. Factual Statement On November 22, 1983, Debtor Charles W. Young filed his bankruptcy petition under Chapter 13 of Title 11 of the United States Code. Mr. Young filed his Chapter 13 Statement on the same date....
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MEMORANDUM OPINION The dischargeability question raised in this adversary proceeding under Bankruptcy Code § 523(a)(5) involves the recurrent problem of how to characterize obligations under a divorce decree when the “support” obligation in the decree was obviously fixed at an amount lower than it otherwise would have been had the parties and the divorce court been cognizant at the ...
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MEMORANDUM OPINION This matter is pending on— 1. the motion of the defendants to remand this action to the Floyd County Circuit Court, and, 2. the motion of the plaintiff debtor in possession to assume the mineral leases which are the subject of this action. FINDINGS OF FACT: On June 6, 1976 the defendant, Big Sandy Coal and Coke Company, entered into a lease with the ...
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MEMORANDUM OPINION An adversary proceeding was commenced in this Chapter 7 bankruptcy case *743 on March 29,1985 by a Complaint objecting to the dischargeability of certain debts arising from a divorce proceeding. The complaint was filed by Deborah D. Keniston, the former wife of the debtor. The debt- or’s answer to the complaint was filed on June 11, 1985. A pre trial hearing in this matter ...
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DECISION AND ORDER 254 West 54 Venture Company (the “Landlord”) seeks an order, pursuant to § 365 of the Bankruptcy Code, 11 U.S.C. § 365 (1984), compelling the debtor to surrender its lease to it. David Berdon, trustee, a creditor having security through an escrowed assignment of the lease, opposes the motion and seeks approval of a stipulation with Cobham Enterprises, Inc. (“Cob-ham” or...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint To Determine Dis-chargeability of Debt. The Court has conducted the Trial, and has heard the evidence and arguments offerred by each of the parties. The Court has reviewed the evidence, the arguments, and the entire record in this case. Based upon that review and for the following reasons the Court f...
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60 B.R. 752 (1986) In re AMERICAN INSULATOR COMPANY, Debtor. AMERICAN INSULATOR COMPANY, Plaintiff, v. MARSH PLASTICS, INC., Defendant, v. KRAFT AND KRAFT, P.C., Additional Defendant. Bankruptcy No. 85-00675G, Adv. No. 85-0629G. United States Bankruptcy Court, E.D. Pennsylvania. May 14, 1986. *753 Robert Szwajkos, Rubin, Quinn & Moss, Philadelphia, Pa., for debtor/plaintiff, American Insulator Co...
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MEMORANDUM OPINION Before this Court is the Debtor’s Motion For Impairment And Reduction Of Judgment Note Interest Rate, pursuant to 41 P.S. § 301. W. Byron Schlag (hereinafter “Debtor”) claims that the interest rate charged him by the holder of the Judgment Note, Leonard M. Mendelson (hereinafter “Mendelson”), is usurious and in violation of Pennsylvania law commonly known as “Act Six”. ...
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OPINION The primary point for consideration in the case at bench is whether we should grant a debtor’s belated application for the employment of counsel in order that said counsel may be compensated for services performed prior to the filing of the application. Due to binding precedent from the United States Court of Appeals for the Third Circuit, we conclude that we may not grant the app...
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MEMORANDUM OPINION Presently before this Court is a Complaint by Christie Ann Craig, a/k/a Christie Ann Evans (hereinafter “Debtor”) to determine the dischargeability of her debt to the Pennsylvania Higher Education Assistance Agency (hereinafter “PHEAA”). The Debtor raises several alternative issues which she asserts support her Complaint: (1) The applicable law on the question of dischargea...
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Janice Leah Strong and her husband filed a petition for relief under chapter 7 of the Bankruptcy Code. After the court granted them a discharge of their debts, the plaintiffs brought this suit to have one of Janice Strong’s debts excepted from the discharge. Janice Strong has filed a motion for summary judgment and the plaintiffs have responded. Whether the court should grant the motion is the ...
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MEMORANDUM OPINION On February 15, 1985, Bonds Lucky Foods, Inc., No. 1 and Bonds Lucky Foods, Inc., No. 2 filed voluntary petitions for relief under the provisions of Chapter 11. On March 18, 1985, an Order was entered authorizing the employment of the law firm of Mitchell, Williams, Selig, Jackson & Tucker (Mitchell Law Firm) as attorneys for both estates. On April 30, 1985, an Order wa...
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MEMORANDUM DECISION I. INTRODUCTION On November 14, 1983, Gary Burklow (“Burklow”) and his wife, Ute Burklow, filed their Petition for Relief under Chapter 7 of Title 11, United States Code. On February 7,1984, Joseph LaFata, dba California Tailors Traditional Clothing (“LaFata”) filed a Complaint to seek a determination that Burklow’s debt to him was nondischargeable pursu...
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MEMORANDUM-OPINION This matter comes before the Court on plaintiff’s Motion for Summary Judgment on its Complaint alleging that certain debts paid by the plaintiff are nondischargeable pursuant to Sections 523, 509, and 507(a)(7). The issue presented is whether the plaintiff, as a co-debtor, can be subrogated to the tax claims of the Internal Revenue Service and Kentucky Department of Rev...
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MEMORANDUM OPINION This matter comes before the court to determine whether this court’s order entered February 25, 1986, lifting the automatic stay on the realty comprising a part of the debtor’s estate in this Chapter 13 proceeding was proper. Additionally, this court addresses whether this proceeding was filed in good faith pursuant to 11 U.S.C. 1325(a)(3). As noted in the above re...
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MEMORANDUM ON NOMINEE TRUST The voluntary petition in question was filed on February 20, 1986 pursuant to 11 U.S.C. § 301. The Court must determine if the named debtor qualifies to file for bankruptcy as delineated within the Bankruptcy Code. 11 U.S.C. § 109(a) states that only a person may be a debtor. The Code defines person in 11 U.S.C. § 101(33) to include corporations. Corporations a...
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MEMORANDUM OPINION REGARDING DEBTOR’S OBJECTION TO ASSESSMENT OF PENALTIES BY THE INTERNAL REVENUE SERVICE The debtor filed its petition for relief under Chapter 11 of the Bankruptcy Code on July 16, 1985. On December 9, 1985, even though the Internal Revenue Service (hereinafter referred to as IRS or Service) had not yet filed a proof of claim, the debtor filed an objection to the IRS’ claim f...
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OPINION Redetermination of Tax Liability for Ad Valorem Property Taxes for the Years 1978-85, Inclusive, and for the Redetermination of Personal Property Taxes for the Years 1980-82, Inclusive This matter is before me on a Motion brought by the Debtor-in-possession to determine the Debtor’s tax liability under Title 11 U.S.C. Section 506. The thrust of the Debtor’s Motion is that the local ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motions For Summary Judgment filed by both the Plaintiff and the Defendant in the above entitled adversary action. The parties have filed their arguments respecting the merits of the Motions, and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the...
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MEMORANDUM OPINION AND. ORDER This cause comes before the Court upon the Complaint To Determine Dischargeability in the above entitled adversary action. The Court conducted a Pre-Trial in this case, at which the parties agreed that the issues addressed in the Complaint are primarily issues of law. They also agreed that the Court may enter a ruling in this case based solely upon the written argumen...
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MEMORANDUM OPINION AND ORDER The issue presented is whether this Court may grant the Debtor’s motion to reimpose the automatic stay of 11 U.S.C. § 362 in the above-styled Motion which has been appealed. Briefly stated, the facts appear as follows. The Debtor, Kendrick Equipment Corporation, filed its Chapter 11 petition in this Court on October 18, 1985. On November 29, 1985, the Movant, Inge...
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MEMORANDUM OPINION On August 8, 1985, the plaintiff, First Virginia Bank (“FVB”), moved this Court to permit an amendment to its complaint, which was filed in January of 1985. Sustaining the objection of debtor Virginia R.W. McClellan, the Court denied leave to amend. Upon FVB’s Motion for Reconsideration, the Court reheard the motion to amend and took the matter under advisement. Ru...
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*713 ORDER This matter came before the Court on several motions of the parties including the Windom State Bank’s objection to Debtors’ claimed exemptions and to Debtors’ motion to avoid certain of the Bank’s liens. On February 18, 1986, the parties submitted a stipulation of facts. On February 24,1986, both parties submitted briefs and agreed that the Court should decide this matter without f...
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OPINION AND ORDER The Trustee filed an adversary complaint to void two preferences. The Defendant Griffel (Griffel) denied the allegations of the complaint. Trial of the cause was held on October 17, 1985, and concluded, after continuance, on January 30, 1986. All parties have submitted memorandums in support of their respective positions. The Debtor, Albert Wegner, (Debtor) and Grif...
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DECISION AND ORDER This matter is before the court on motions for summary judgment filed by the following defendants: Turner Construction Company (“Turner”), Hoge-Warren-Zim-merman Company (“HWZ”), Miami Valley Carpenters District Council Pension Fund (“Pension Fund”), Miami Valley Carpenters District Council Health and Welfare Fund (“Health and Welfare Fund”), and Miami Valley Carpenters...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on for trial on March 11, 1986 and April 11,1986, upon *351 the Trustee’s Amended Complaint to Avoid Fraudulent Transfer, to Impose Trust and to Determine Validity, Priority and Extent of Liens, and the Court having heard the testimony and examined the evidence presented; observed the candor and demeanor of the wi...
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MEMORANDUM AND ORDER This matter came to be heard on the motion of the debtor in possession, Opelika Manufacturing Corporation (“Opelika” or “debtor”), to extend the time within which it must assume or reject various non-residential real property leases. In connection therewith, Opelika presently seeks a determination as a matter of law that its Lease Agreement (the “Agreement”) with the ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER REGARDING DEBTORS’ MOTION FOR AUTHORITY TO USE CASH COLLATERAL The matter before the Court involves Debtors’ Motion for Authority to Use Cash Collateral. The Court, having reviewed the stipulated facts and having reviewed the arguments of counsel, now makes the following Findings of Fact, Conclusions of Law, and Order pursuant to F.R.B.P. 7052. Th...
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MEMORANDUM-OPINION This matter comes before the court for a determination of the rights of the debtor and the creditors, Burnett Brothers Investment, Edwin D. Burnett, and Forrest D. Burnett (hereinafter Burnett), flowing from a Lease Agreement and an Agreement both dated March 17, 1982. At issue is whether these documents constitute one unified executory contract between the parties, i.e. whether...
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DECISION AND ORDER DENYING PRIORITY TO CLAIM OF STATE OF TEXAS The State of Texas (“State”) filed a proof of claim in the O.P.M. Leasing Services, Inc. (“O.P.M.”) bankruptcy proceeding seeking, inter alia, $46,010.35 in unpaid franchise taxes. The State contends that its claim is entitled to priority status under § 507(a)(7)(A) of the Bankruptcy Reform Act of 1978 (“Code”). Whi...
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DECISION ON MOTION FOR A REHEARING OF MOTION TO APPROVE REJECTION OF COLLECTIVE BARGAINING AGREEMENT The debtor has moved to rehear or reconsider this court’s decision of August 19, 1985 which denied rejection of its collective bargaining agreement with Local Union No. 445 International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (the “Union”) as of April 1, 19...
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MEMORANDUM The question presented is whether the victim of the debtors’ (alleged) prepetition negligence has a “claim” in bankruptcy where discovery of the negligence occurred postpetition. I find that the plaintiff has a claim in these bankruptcy cases. The following constitute findings of fact and conclusions of law. Bankruptcy Rule 7052. This is a core proceeding. 28 U.S.C. § 157(...
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FINDINGS OF FACT AND ' CONCLUSIONS OF LAW The court is fully aware that the trial court may not blindly accept the proposed findings of fact and conclusions of law of the prevailing party. United States v. El Paso Natural Gas, 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964). However, when the proposed findings are consistent with the evidence and the conclusions are agreeable to the state of th...
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60 B.R. 676 (1986) In re SHERPOLK JOINT VENTURE, Debtor, TEXAS COMMERCE BANK-BEAUMONT, N.A. and 777 S.H. Corp., Movants, v. SHERPOLK JOINT VENTURE, Respondent. Bankruptcy No. 85-06075-H3-5. United States Bankruptcy Court, S.D. Texas, Houston Division. May 9, 1986. Don Russell, Elizabeth Ray, Calvin, Dylewski, Gibbs, Maddox, Russell & Verner, Houston, Tex., for debtor, Sherpolk Joint Venturer....
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OPINION AND ORDER The Neillsville Bank (Bank), by Frank Vazquez, has brought a motion requesting the court to prohibit the debtors from using proceeds. Ewald and Dorothy Reetz were divorced on February 14, 1986. The debtor, Ewald Reetz, now appears by Howard White and contests the Bank’s motion. The debtor also motions the court pursuant to 11 U.S.C. § 1121 requesting an extension of time to fi...
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OPINION ON EXTENT AND VALIDITY OF JUDGMENT LIEN The debtors, Kenneth Leon Duncan and Donna Maria Duncan, commenced an adversary proceeding to have the judicial lien of the creditor, Gunter Insurance Agency, declared void. Earlier, the court had entered an order avoiding the judicial lien under 11 U.S.C. § 522(f)(1). Under that provision of the Code, a judicial lien may be avoided to the e...
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MEMORANDUM OF DECISION *666 In its present posture, 1 this controversy involves the amount of protection the defendant is entitled to after conveying real property, located in Lancaster County, Pennsylvania, to the debtor’s estate. The principal issue to be considered is whether the original transfer to the defendant occurred before or after the order for relief. Subsi...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a contested discharge proceeding and the matter under consideration is a claim asserted by Howard R. Selz and Marian Witry that Robert W. Snyder (Debtor) is not entitled to a discharge or, in any event, the debt owed by the Debtor to these Plaintiffs should be declared to be non-dischargeable. The Objection to Discharge i...
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ORDER GRANTING SUMMARY JUDGMENT FOR BANK OF HAWAII Defendant Bank of Hawaii’s Motion for Summary Judgment and plaintiff Graulty’s Cross-Motion for Summary Judgment came on for hearing before this court on February 6, 1986. Richard Kanter appeared on behalf of plaintiff, and Thomas Cook and Steven Otaguro appeared on behalf of defendant Bank of Hawaii, and Wayson Wong appeared on behalf of Third-P...
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Findings of Fact, Conclusions of Law, and ORDER re Motion to Sequester Rents and Profits The matter before the Court is a Motion to Sequester Rents and Profits filed by the Federal Land Bank of Omaha (Land Bank) and resisted by the Debtors. The matter came for hearing on July 18,1985, at which time the parties notified the Court that the facts of the case as alleged in Paragraphs 1 through 6 ...
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FINDINGS OF FACT. This matter begins in the dark recesses of legal time on February 16, 1972 with the filing of a law suit styled, “Ward Brothers and Frank Ward vs Clinton Smith” # 11609, Fifth Judicial District Court, West Carroll Parish, La. In this State Court suit the plaintiff alleged that Mr. Smith owed $8,057.39 represented by a promissory note and $4,693.94 on account for supplies...
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REPORT OF SPECIAL MASTER REGARDING VARIOUS MOTIONS FOR SUMMARY JUDGMENT PACA TRUST FUND CLAIMS IN BANKRUPTCY This report concerns the motions for summary judgment filed by the plaintiff, St. Joseph Bank and Trust Company (“Bank”), and by defendants S & S Farms, Inc., DeBruyn Produce Company, Central *214 Michigan Packing, and the Michigan Agricultural Cooperative Marketing As...
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MEMORANDUM OPINION These cases present the troublesome question of the effect upon the legal rights of a secured lender having a floating lien upon accounts receivable when its borrower commences a Chapter 11 reorganization proceeding and the parties proceed under some tentative agreement but fail to obtain any court order authorizing post-petition borrowing and attachment of the floating lien ...
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ORDER DENYING DEBTOR’S MOTION TO RECONSIDER Heard on the debtor’s motion to reconsider a Decision and Order Modifying the Automatic Stay, dated April 9, 1986, 59 B.R. 283, wherein we granted Mattingly leave to proceed with his pending state court action against the debtor (for willful and malicious breach of an employment contract), conditional upon an early trial date. In support of the moti...
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MEMORANDUM On April 20, 1983, defendants filed a notice of lien lis pendens, Tenn.Code Ann. § 20-3-101 (1980), in the Register’s Office for Knox County, Tennessee. On June 8, 1984, defendants were awarded a judgment against the debtor in the amount of $52,-726.46. On December 11, 1984, defendants recorded the judgment in the Register’s Office. Bankruptcy ensued on February 28, 1985. The t...
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MEMORANDUM AND ORDER In this contested involuntary petition, the major issues are whether the claim of the sole petitioning creditor is subject to bona fide dispute, whether there are twelve or more creditors of the alleged debtor and whether the debtor was generally paying his debts as they became due. Because the petitioning creditor has not established the absence of a bona fide dispute with...
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This adversary proceeding came on for hearing to determine the dischargeability of an educational loan pursuant to 11 U.S.C. § 523(a)(8)(B). Upon hearing before the Court ore ten-us, the facts appeared as follows. The Debtor, John E. Ballard, obtained two educational loans from the Virginia Education Loan Authority and executed two promissory notes, on October 27,1979 and April 5, 1981, in th...
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MEMORANDUM DECISION I. INTRODUCTION This Memorandum Decision arises out of three Motions filed by defendant Veri-Fone, Inc. (“Veri-Fone”). By way of Motion Veri-Fone requests this court to: *647 1. Dismiss the present adversary proceeding for lack of subject matter jurisdiction pursuant to Rule 7012(b) of the Bankruptcy Rules; 2. Modify the automatic stay in t...
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ORDER DISMISSING COMPLAINT THIS MATTER is before the Court on the Defendant's Motion to Dismiss, which came on for hearing on April 17,1986. The Defendant, Debtor James Tatum, seeks the dismissal of the complaint objecting to discharge brought by creditor Merrill, Lynch, Pierce, Fenner & Smith (“Merrill, Lynch”), asserting that the complaint was untimely filed. The Defendant submitte...
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ORDER DENYING SUMMARY JUDGMENT THIS MATTER is before the Court on the Plaintiff’s Motion for Summary Judgment, in this adversary proceeding against Carl Heath, the Debtor. The Plaintiff's complaint alleges that Heath acted fraudulently by tendering a check to Plaintiff, for services rendered, knowing that these were insufficient funds to cover the check. In July of 1985, Plaintiff performed d...
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60 B.R. 641 (1986) In re Ronald Eugene WALDEN and Mary Shirley Walden, Debtors. Ronald Eugene WALDEN, Plaintiff, v. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Defendant. Bankruptcy No. 84-279-BK-J-7, Adv. No. 85-38. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. May 7, 1986. *642 Albert H. Mickler, Jacksonville, Fla., for plaintiff. Robert J. Rao, Ki...
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MEMORANDUM DECISION AND ORDER This bankruptcy petition under Chapter 11 of the Bankruptcy Code was filed on October 16, 1985. The record shows that the debtor-corporation is owned by Mr. Lloyd Williams, who is also in a Chapter 11 Reorganization. The only asset owned by the corporation is a 1965 Rockwell Commander Airplane. This airplane is secured *653 by a collateral chatte...
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ORDER GRANTING TRUSTEE’S MOTION TO DISMISS Heard on the trustee’s motion to dismiss this Chapter 13 case, because of the debt- or’s failure to comply with the terms of the confirmed plan. 11 U.S.C. § 1307. 1 The debtor has not made any payments into the plan since September 1985, and no requests for relief, formal or otherwise, were received from the debtor during the time she has been in d...
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ORDER GRANTING TRUSTEE’S MOTION TO DISMISS Heard on the trustee’s motion to dismiss this Chapter 13 case, because of the debt- or’s failure to comply with the terms of the confirmed plan; and to release $56 to the debtor’s employer, on the ground that said funds had not actually been earned by the debtor. The trustee, who last received a payment into the plan in June 1985, 1 seeks dismissal...
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ORDER DENYING DEBTOR’S MOTION TO RECONSIDER Heard on April 17, 1986, on the debtor’s motion to reconsider an order dismissing this Chapter 13 case. The trustee and Old Stone Bank object to the motion. The facts are not in dispute. The Chapter 13 petition was filed on October 10, 1985 and a confirmation hearing was held on December 5. Because the plan proposed to treat certain secured claims a...
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60 B.R. 654 (1986) In re Michael McGUIRE and Joann McGuire, Debtors. Bankruptcy No. 8500651. United States Bankruptcy Court, D. Rhode Island. May 7, 1986. *655 Russell D. Raskin, Raskin & Berman, Providence, R.I., for debtor. Andrew S. Richardson, Boyajian, Coleman & Harrington, Providence, R.I., for trustee. ORDER DENYING DEBTORS' MOTION TO RECONSIDER. ARTHUR N. VOTOLATO, Jr., Bankruptcy Judge....
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DECISION Norwest Mortgage, Inc. (Norwest) asserts that this chapter 13 case was filed in bad faith, and asks the court to hold the debtor and/or the debtor’s attorney liable for reasonable costs and attorney fees. Hearing on the motion was held on February 25, 1986, Norwest appearing by Attorney Richard E. Ceman, Jr. and the debt- or appearing by Attorney Clifton G. Owens. The record presente...
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MEMORANDUM DECISION I. INTRODUCTION At issue in this matter is whether Hooper, Goode Realty, a California corporation, and the debtor herein (“debtor” or “HGR”), is required to employ its two officers, C. Cortland Hooper (“Hooper”) and Carole H. Goode (“Goode”) nunc pro tunc from November 26, 1984 to March 4, 1986, and if so, whether such relief will be granted. ...
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AMENDED MEMORANDUM OF DECISION ON TRUSTEE’S OBJECTION TO PROOF OF CLAIM BEING CONSIDERED AS TIMELY FILED I. This proceeding raises the question of whether a bar date exists for the filing of a proof of claim by a party who became a creditor postpetition when, upon demand, it returned monies to a chapter 7 trustee. The trustee had asserted that the receipt of the monies prepetition by...
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MEMORANDUM-OPINION This matter comes before the Court on a Complaint filed by the debtor on an account receivable allegedly due and owing by the defendant, Christian H. Glanz, Jr., d/b/a Maryville Hardware. At the outset, it is noted that this proceeding is for the collection of an account receivable comprising a part of the estate of the debtor; that the defendant, in person and by counsel, has ...
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MEMORANDUM DECISION AND ORDER The issues on this motion concern the trustee’s objection to the proof of claim of Regency Center Office Park, Ltd. In early January, 1982 Regency leased office space to George Rodman, Inc. The corporate tenant’s performance under the lease was guaranteed by Earl George Rod-man, III, debtor in this case. The lease was for a term ending in late 1992 and provided f...
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OPINION AND ORDER The dispute arose out of an adversary proceeding filed by Meadville Production Credit Association (“Meadville”) to determine the validity of its security interest in certain proceeds. A hearing was held on April 4, 1986 on the Trustee’s Motion for authorization to settle the claim of Meadville and objections filed thereto by a general creditor, Agway Petroleum Credit (“Agway...
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MEMORANDUM OPINION Before the Court is the Debtor’s Motion To Avoid A Lien pursuant to 11 U.S.C. § 522(f)(1). Based upon the facts in the instant case and the law on the issue as it stands in the Third Circuit, we find that this lien cannot be avoided. FACTS Ella Louise Hooper (hereinafter the “Debtor”) purchased the property in question for $35,200.00. Two encumbrances exist against this p...
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OPINION The debtors, Eugene and Carolyn Gay-ton, appeal the bankruptcy court’s dismissal of their Chapter 13 case. 1 The sole issue on appeal is whether the bankruptcy court erred by holding that Eugene Gayton’s prior Chapter 7 bankruptcy, which resulted in a discharge in a case commenced within six years before the date of the filing of the petition, prevented confirmation o...
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OPINION This Court in this case is called upon to resolve the factual question of how much money is owing on a loan due defendant, Security Pacific Finance Corporation, before it can proceed further with the Trustee’s petition to sell real estate. On April 2, 1980, the debtors executed a note with Security Pacific Finance Corporation. The note was secured by a mortgage on the debtors’ principal r...
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MEMORANDUM OPINION This matter comes before the Court for resolution of the issue of whether the debtors are entitled to claim a homestead exemption in a 78' houseboat and two boat dock slips. The Trustee has objected to the exemption and the Court held a hearing on the Trustee’s objection on January 3, 1986. The debtors filed the within Chapter 7 petition on August 20, 1985. In Schedule B-4,...
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MEMORANDUM OPINION INTRODUCTION On June 21, 1985, the Court ordered relief on the Debtor’s voluntary Chapter 7 petition. On August 30, 1985, the Chase Manhattan Bank, N.A., (“Chase”) and First Community Credit Union (“First Community”) timely filed separate complaints to determine the dischargeability of debts. Each Plaintiff also prays for a money judgment against the Debtor for whatever amo...
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DECISION AND ORDER The defendant seeks an order granting summary judgment pursuant to Rule 7056 of the Rules of Bankruptcy Procedure (1983), which incorporates Rule 56 of the Federal Rules of Civil Procedure (“F.R.C.P.”) (1983). She further requests that sanctions be imposed against the plaintiff and his attorneys pursuant to Rule 9011 of the Bankruptcy Rules. Alternatively she demands th...
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DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT The present motion for summary judgment raises two issues of first impression: 1) whether a debtor corporation’s retention of certain lobbyists was in the ordinary course of business under § 363 of the Bankruptcy Reform Act of 1978 (“Code”); and 2) whether such lobbyists are professional persons within the meaning of § 327(a), whose retent...
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MEMORANDUM OPINION This matter came before the court upon an objection to confirmation filed by EPI-CO, Schneibel and Owens (hereinafter referred to as “the creditor”). The creditor is represented by Sol Siegel of Goldsmith, Siegel, Engel & Littlefield of Portland, Oregon. The debtor is represented by Richard M. Friz. The creditor objects to confirmation on the ground that the plan f...
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OPINION The primary inquiry in the instant case is whether in Pennsylvania a mortgagee making payments under a future advance clause has priority over an alleged lienor whose lien arose after the creation of the mortgage but before the payments in question were made. Since we find that the mortgagee was obligated by the terms of the loan to make the payments in issue, we conclude that it has prior...
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MEMORANDUM The plaintiffs move to transfer venue of this case and two adversary proceedings to the Northern District of Illinois. I find that the power to change venue under 28 U.S.C.S. § 1412 (Law.Coop.1986) may be exercised by the bankruptcy court in bankruptcy cases and in core adversary proceedings. The facts support transfer of this case and adversary proceeding...
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MEMORANDUM I An involuntary chapter 7 case was commenced against the debtor Jacob F. Butcher on June 29, 1983. This court entered an *31order for relief on August 22, 1983. Following the debtor’s failure to timely file a list of exemptions, the debtor’s wife Sonya W. Butcher filed a list of assertedly exempt property on his behalf pursuant to Bankruptcy Rule 4003(a). The schedule of asserted exemp...
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MEMORANDUM OPINION FACTS AND PROCEDURAL BACKGROUND This matter came before the Court for trial on September 7, 1984, on the verified complaint of Research-Planning, Inc., a Utah corporation (“Research-Planning”). The plaintiff claims that funds recovered by the trustee in the exercise of his preference avoidance powers are subject to a trust in its favor. The somewhat unusual facts o...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of the plaintiffs, William L. Maitland and Stephany T. Maitland (“Mait-lands”), the debtors in the above-styled case, to determine, pursuant to 11 U.S.C. § 506(a), the extent of the defendants’ liens against their real estate, the amount of the allowed secured claims, and the amount of the unsecured portions thereof. I...
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*175ORDER DENYING COMMITTEE’S MOTIONS AND DISMISSING ADVERSARY PROCEEDING Since August 1985, the active participants in this chapter 11 case have been discussing the possibility of a consensual plan. By April 10, 1986, the discussions had progressed to the point that the major terms of such an agreement appeared to have the support of the lenders group, each of the official creditors’ groups appoi...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for consideration upon a Motion to Dismiss the above-captioned Chapter 11 case. The Motion was filed by Tampa Airport Hotel Ventures and Alexander Palmer (Palmer). It appears that the following facts relevant to the motion are without dispute and are as follows: Prior to the commencement of this case, a suit was filed in the United States...
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MEMORANDUM OPINION AND ORDER REGARDING TRANSFER OF VENUE This controversy involves a motion, pursuant to Bankruptcy Rule 1014, by Kona Joint Venture I, Ltd. (“Debtor”) to transfer venue from the District of Hawaii to the Western District of Texas, San Antonio Division. In a motion filed on December 19, 1985, the Debtor contends that transfer should be ordered for the convenience of the partie...
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MEMORANDUM OPINION ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY Final hearing on motion for relief from the automatic stay filed by ITT Commercial Finance Corp. was held on February 18, 1986. The parties were granted permission to file post-trial briefs and the last of the briefs was filed on March 13, 1986. Debtor was a retail business selling Suzuki motorcycles and related equipment to the ...
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MEMORANDUM DECISION DENYING RECLAMATION MOTION (FREDEBAUGH MORTGAGE) Malcolm Davis and Monroe Seibel (the “Creditors”), prepetition judgment creditors of Mid Atlantic Fund, Inc. (“Mid Atlantic” or “Debtor”), filed a motion on November 20, 1984 seeking an order directing the Trustee in this Chapter 7 bankruptcy proceeding to account for and turn over all monies received pursuant to a certa...
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MEMORANDUM OPINION AND ORDER The instant adversary action was commenced by Sargent County Bank (BANK) by Complaint filed November 26, 1885, alleging a right to indemnification from the Debtor and a determination of non-dis-chargeability under section 523(a)(2) to the extent of such indemnification. Answering, the Debtor, Merlyn Yagow, denies responsibility for the damages allegedly sustai...
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OPINION The parties have couched the issue in this case as whether the Pension Benefit Guaranty Corporation (“the Pension Fund”), which is a U.S. Government instrumentality, received actual notice of the bar date for filing claims in order to file a timely proof of claim on a non-tax debt. We resolve the dispute on the basis that no notice of the deadline for filing claims was sent to the...
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MEMORANDUM At issue is whether the debtor is entitled to a homestead exemption under Florida law. Also at issue is whether the debtor is entitled under Florida law to exempt the cash surrender value of certain life insurance policies of which she is the owner and beneficiary. On September 9, 1983, an involuntary chapter 7 petition was filed against the debtor Sonya W. Butcher. Initia...
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MEMORANDUM OPINION FACTS AND PROCEDURAL BACKGROUND This matter came before the Court on April 15,1986, on the parties’ cross motions for summary judgment. At issue in this adversary proceeding is the possible conflict between the Wyoming employment security taxation scheme and Section 525(a) of the Bankruptcy Code. The facts are undisputed and have been stipulated by the parties. Sli...
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60 B.R. 315 (1986) In re ALPEX COMPUTER CORP., Debtor. ALPEX COMPUTER CORP., Plaintiff, v. Lucian C. WHITTAKER, II and Samuel R. Hales, Defendants. Bankruptcy No. 85 J 0580. United States Bankruptcy Court, D. Colorado. May 1, 1986. *316 Michael J. Guyerson, Rothgerber, Appel, Powers & Johnson, Denver, Colo., for trustee. Arthur Lindquist-Kleissler, Solomon & Lindquist-Kleissler, Denver, C...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court for hearing on April 14, 1986, upon Debtors’ motion, pursuant to 11 U.S.C. § 522(f), to avoid a nonpossessory, nonpurchase money security interest in tools of the trade held by the IntraWest Bank of Grand Junction (“IntraWest”). Debtors claimed that their medical equipment falls within the statutory exemption amount therefore the se...
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MEMORANDUM This matter is before the Court on the complaint of the Federal Deposit Insurance Corporation (the “FDIC”). The FDIC seeks a determination that a debt assigned to it by the Mohawk Bank and Trust Company (the “Bank”) and owed by Ronald Bombard (“Bombard” or the “Debtor”) is *953 nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). 1 The complaint was he...
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MEMORANDUM OPINION RE MOTION FOR RELIEF FROM THE AUTOMATIC STAY Hearing on motion for relief from the automatic stay filed by The Federal Land Bank was heard in Lincoln on March 17, 1986. Appearing on behalf of The Federal Land Bank was James E. Doyle of Cook, Kopf & Doyle, P.C., Lexington, Nebraska. Appearing on behalf of the debtors was Vince Powers of Lincoln, Nebraska. ...
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This matter came to be heard on the complaint of the trustee that the debtor fraudulently conveyed property to Ms. Dawna Green. The court finds that the debtor had no interest in the conveyed property and thus the gratuitous conveyance was not fraudulent. FACTS Dawna Green is the debtor’s former fiancee. She laid out $42,000 for the purchase of a house on April 8, 1985 in contemplation of marriage...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On June 20, 1985, the standing Chapter 13 trustee was allowed $1,901.22 for fees and expenses. He filed a motion for reconsideration of the award, and after hearing on December 23 on the debtors’ objection, for the reasons discussed below, an order was entered awarding an additional $3,000. The debtor appealed. We review herein the travel of this case, and ...
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ORDER ON U.S. MOTION TO PERMIT LATE-FILED CLAIM The motion (C.P. No. 186) of the United States for leave to file a claim in the amount of $1 million in this chapter 11 case was heard on April 28. It is opposed by the creditors’ committee whose chapter 11 plan is presently under consideration by this court. In proceedings held March 20 before District Judge Aronovitz, the court approved a plea...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER before the Court in this Chapter 11 case is a Complaint For Equitable Reinstatement of A Lease of Real Estate filed by the Debtor, Bahia Resorts, Inc. It is important to point out at the outset what is and is not involved in the matter under consideration. This is not a proceeding which involves the question of whether this De...
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ORDER ON OBJECTIONS TO APPLICATIONS FOR ALLOWANCE OF FEES THIS IS a dismissed Chapter 11 case, however, the Order of Dismissal expressly provided that this Court shall retain jurisdiction for the very limited purpose of considering the Fee Applications filed in this case by several professionals who were involved during the turbulent history of this Debtor. Objections to the Fee Applications ha...
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MEMORANDUM OPINION INTRODUCTION On May 15, 1985, the Court entered an Order for relief on the Debtor’s voluntary Chapter 11 petition. At the time of its filing, Debtor was in possession of certain photographic equipment, inventory, and accounts receivable (“the collateral”) in which Mark Twain St. Charles County Bank (“Mark Twain”) claimed to have a valid and perfected security interest. On J...
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MEMORANDUM OPINION RE CLARIFICATION OF ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY This matter comes before the Court on a request by the Federal Land Bank to clarify its order entered November 8, 1985, by Journal Entry which sustained a motion for relief filed by the Federal Land Bank. The matter was heard at a status hearing on April 18, 1986. Appearing on behalf of the Federal Land B...
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MEMORANDUM DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Presently before this court for resolution is a motion for summary judgment made by Old Stone Bank (the “Bank”), the plain-itff in this adversary proceeding. On September 19, 1983, the Bank commenced this adversary proceeding against Brookfield Clothes, Inc. (“Brookfield”), the Chapter 11 Debtor, and Jason Gibbs, Inc. (“Gibbs”), the pu...
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OPINION and NOTICE OF HEARING Before the Court for decision at this time are three separate applications by Erling C. Kristiansen: (1) Modification of the automatic stay imposed by 11 U.S.C. § 362 so as to permit the entry of a judgment against the debtor in the Supreme Court of the State of New York in the pending proceeding known as “In the Matter of the Application of Erling C. Kr...
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OPINION This matter came to be heard on the motions by defendants and cross-motions by debtors for summary judgment in this action to vacate the tax lien foreclosure on the debtors’ real property. The court has extracted from the parties’ verbiage, four issues: (1) whether the debtors have stated a claim against defendants Robins Nest and Wein-co; (2) whether the debtors were insolvent at t...
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MEMORANDUM AND ORDER This matter is before the Court on Motions to Dismiss, simultaneously filed by First Bank of South Dakota (FIRST BANK) and Federal Land Bank of St. Paul (FEDERAL LAND BANK). As a basis for its Motion, Federal Land Bank, pointing to the Debtors’ previously dismissed Chapter 11 case and a pending foreclosure, charges that the Debtors will be unable to successfully reorganize....
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OPINION The principal issue presented in the case at bench is whether a secured creditor has violated the Truth-In-Lending Act (“the TILA”), 15 U.S.C. § 1601 et seq., by failing to comply with the requisite disclosure provisions. Since we find that the creditor failed to accurately disclose the security interest taken to secure the loan, we conclude that the TILA was violated. The fa...
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MEMORANDUM AND ORDER I. Background The issue presented is whether the bankruptcy court should hold a jury trial in a case alleging a preferential transfer and a conversion. The debtor’s causes of actions arose in connection with its purchase of a restaurant that was subsequently damaged by fire. Both the debtor and the defendants were listed as beneficiaries of an insurance p...
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MEMORANDUM AND ORDER R.D. McCullough, II has filed a motion for reconsideration of this Court’s oral decision and order of February 14, 1986 granting in part and denying in part his motion for summary judgment. The complaint underlying the summary judgment motion sought to except a $56,935.62 debt from discharge under 11 U.S.C. § 523(a)(2)(A) as being based on fraud. As indicated by the grant...
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FINDING OF FACTS, CONCLUSIONS OF LAW AND ORDER DISALLOWING CLAIMANT’S CLAIM At issue in this controversy is the enforceability of guarantee agreements which the debtor is alleged to have executed in favor of the claimant and on which a balance is now due of such magnitude that its enforcement in this chapter 13 case would render the debtor’s chapter 13 plan impossible and infeasible. ...
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MEMORANDUM OPINION This matter came before the Court on the Federal Deposit Insurance Corporation’s (FDIC) motion to dismiss the debtor’s complaint of preferential transfer under 11 U.S.C. § 547. The issue before the Court is whether the debtor, First City Financial Corporation (FCFC) may maintain a cause of action against the FDIC in its receiver and corporate capacities under 11 U....
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MEMORANDUM OPINION Pending before the court is an Order to Show Cause why Charles L. Honey, a former attorney for the above chapter 11 debtors, 1 should not be required to reimburse the above debtors’ estates for monies received by him 2 as compensation for professional services and for reimbursement for actual, necessary expenses. 3 After careful review...
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MEMORANDUM AND ORDER This is an action by a Chapter 11 trustee to recover a prepetition transfer to Paisano Automotive Liquids, Inc. as a preference. No trial was held on the trustee’s complaint. Instead, the parties have submitted the matter for decision by the Court on a stipulation of facts. 1 The relevant facts stipulated by the parties are as follows: On September 21,198...
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ORDER This matter came before the undersigned Bankruptcy Judge, sitting by special designation in the Northern District of Iowa, upon the motion of the Department of Transportation (“DOT”) for summary judgment and plaintiffs motion for citation of contempt. Eric Lam, attorney, appeared on behalf of plaintiff/debtor. Scott A. Harbottle, attorney, appeared on behalf of DOT. Prior to fi...
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REASONS FOR JUDGMENT CONCERNING EQUITABLE SUBORDINATION OF FIRST MORTGAGE I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the M...
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MEMORANDUM OF DECISION This matter is before the court on the complaint of the trustee for turnover of certain property seized from the debtor’s residence by law enforcement officers acting under a search and seizure warrant. Insofar as the seized property, $35,595 in U.S. currency, had been turned in by the law enforcement agency before the filing of the bankruptcy petition to the Montgomery C...
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MEMORANDUM OPINION This matter was originally heard on legal . arguments at a status hearing on December 13, 1985. The Court asked for briefs by the parties and the final brief was filed February 24, 1986. Facts The Cones State Bank has filed a motion to dismiss and a motion for relief from the automatic stay. The parties agreed that the legal issues involved are the same for both motions...
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DECISION AND ORDER This matter was before the Court on April 25, 1986 on the motion of debtors to punish Fred Channel for contempt and for enforcement of the post discharge injunction in this case. The Court is asked to find Fred Channel and his attorney, Bertram N. Hack, in contempt of this court for violation of the confirmation order of this court filed February 4, 1986. The court finds th...
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MEMORANDUM OPINION This matter came before the court upon an objection to confirmation of the debtors’ chapter 13 plan herein. The following facts were stipulated to by the parties: 1. On October 6, 1982, Michael Musulin filed a conversion action against the debtor, David Whitehead, in state court; 2. On August 2, 1983, the debtor filed a petition for relief under chapter 7; 3. On Novem...
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OPINION This is an appeal from an adversary proceeding brought by the Appellees, the Debtors Joseph and Mary Hilda Torrez, to quiet title to 120 acres of farmland in the Lower Tule River Irrigation District (“District”). Under federal law each landowner can receive water for a maximum of 160 acres of land. 43 U.S.C. § 431. The Appellants John and Jessie Torrez already owned 160 acres prio...
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ORDER ALLOWING AMENDED COMPLAINT On March 7, 1985, the trustee filed this adversary proceeding against the defendant, Joe L. Limerick, III. The complaint alleges jurisdiction pursuant to 28 U.S.C. § 1334(b) and 28 U.S.C. § 157(b). The original complaint alleged breach of contract, breach of fiduciary duty to the; corporate debtor and fraud. The relief sought was a denial of defendant’s cl...
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ORDER ON MOTION TO DISMISS AND MOTION TO STRIKE A COMPLAINT IN INTERPLEADER THIS IS an adversary proceeding commenced by Bob Cooper, Inc., d/b/a BCI Utilities Contractor (BCI), a Debtor seeking relief under Chapter 11 of the Bankruptcy Code. The immediate matter under consideration is a Motion to Dismiss and a Motion to Strike Empire Pipe and Supply Company’s (Empire Pipe) Complaint in Interpleade...
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MEMORANDUM AND ORDER The debtor has filed a complaint seeking damages for breach of contract and fraud in connection with the termination of his employment as a salesperson for the defendant. The defendant in response filed a motion requesting this Court to determine whether this adversary is a core or noncore proceeding pursuant to 28 U.S.C. § 157(b)(3). I. Facts James ...
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MEMORANDUM AND ORDER On February 17,1984 each of the debtors identified in the caption filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code and continued to operate their businesses as provided by Code §§ 1107 and 1108. The court has ordered joint administration of their estates. This court on August 28,1985, confirmed the debtors’ Fourth Amended Joint Plan o...
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ORDER This matter came before the court upon the objection of the trustee and Farmers and Merchants Bank of Preston (“the bank”) to property claimed exempt by debtors. Sheridan Buckley, attorney, appeared on behalf of debtors. Timothy Moratzka, attorney, appeared by filing his objection. Jerrold Bergfalk, attorney, appeared on behalf of the bank. Since approximately 1975, debtors have operate...
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This matter is before the Court on a motion filed by Elsub Corporation (Elsub), *174 the alleged debtor herein, to dismiss the involuntary petition filed against it by Playboy Entérprises, Inc., (PEI). Pursuant to the Case Management and Scheduling Order entered by this Court on December 2, 1985, a hearing was conducted on the instant motion on December 10, 1985 for the sole purpos...
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This matter is before the court on a motion filed by Playboy Enterprises, Inc. (PEI), seeking an Order establishing that “as a matter of law,” PEI did not act in bad faith by filing an involuntary petition *190 in bankruptcy against Elsub Corporation (Elsub) under 11 U.S.C. § 303(b)(2) with fewer than three supporting creditors. Additionally, PEI is seeking a protective order barri...
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MEMORANDUM DECISION This case pits the Limited Partners (the “Limited Partners”) of 1981 Equidyne Properties, I (“Equidyne”) against Credit Alliance Corporation (“Credit Alliance”), the holder of a $850,000 junior mortgage and the assignee of a $9.8 million wraparound mortgage (the “Wrap Mortgage”) on the sole asset of the partnership, the Morris County Mall (the “Mall”). At issue is the validity...
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MEMORANDUM DECISION AND FINAL APPLICATION FOR ALLOWANCE The final meeting in this Chapter 7 case was held on February 3,1986. The Debtor, Edward Carlos Plunkett, filed his Chapter 7 petition on September 6, 1983. His schedules, filed ten days later, reflect unsecured indebtedness of $360,600.20 to eight creditors and secured indebtedness of up to $230,000 to two creditors. Mr. Plunkett’s schedu...
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DECISION ON APPLICATION TO CONVERT CASE TO CHAPTER 7 OR IN THE ALTERNATIVE AN ORDER DIRECTING U.S. TRUSTEE TO APPOINT AN OPERATING TRUSTEE. The petitioners have moved for an order pursuant to 11 U.S.C. § 1112(b) converting this Chapter 11 reorganization case to one under Chapter 7 of the Bankruptcy Code, or in the alternative, for an order in accordance with 11 U.S.C. § 151104(a) directing the ...
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OPINION The focus of the controversy at hand is whether the “cause” requirement of 11 U.S.C. § 502(j) and Bankruptcy Rule 3008 is an additional implicit element required for disallowance of a claim under 11 U.S.C. § 502(d). On the basis of the reasons ex*927pressed herein, we conclude that it is not, and we will therefore disallow the claim at issue. The facts of this controversy are as follows:1...
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OPINION The focus of the instant controversy is the size of the administrative expense that should be allowed to the debtor’s landlord. On the basis of the findings and conclusions expressed below, we will allow the landlord an administrative expense in the amount of $19,257.53. We summarize the facts of this controversy as follows:1 The claimant, Camalloy Wire, Inc. (“Camalloy”), is the owner of ...
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59 B.R. 928 (1986) In re Wanda C. GRAVES, Debtor. Bankruptcy No. 86-00539G. United States Bankruptcy Court, E.D. Pennsylvania. April 25, 1986. Susan L. DeJarnatt, Philadelphia, Pa. for debtor, Wanda C. Graves. Warren T. Pratt, Drinker, Biddle and Reath, Philadelphia, Pa. for mortgagee, Philadelphia Sav. Fund Soc. James J. O'Connell, Philadelphia, Pa., Chapter 13 Standing Trustee. OPINION EMIL F....
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OPINION AND ORDER The debtors, by Kenneth Doran, filed this petition to have the court determine the dischargeability of certain claims against them by the defendant, the Wisconsin Department of Revenue. The Department of Revenue appears by James Har-nett. The debtor, Raymond Schumacher, argues that his tax obligation should be discharged by these bankruptcy proceedings. Rosemarie Schumacher’s ...
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MEMORANDUM OPINION Background On April 2, 1986 came before the Court the Motions for Relief from Stay, previously consolidated for hearing, filed in the above-captioned case by The Equitable Life Assurance Society of U.S. (“Equitable”) in CMS 85-1107, by the United States of America (“USA”) in CMS 86-248, by Merchants and Planters Bank of Newport, Arkansas, (“M & P Bank”) in CMS ...
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MEMORANDUM OPINION A complaint under Section 727 of the Bankruptcy Code, the most serious noncriminal action a creditor can bring against a debtor in bankruptcy, is before the court. Here we examine the final months of a debtor’s failing business, not only to determine whether the debtor is entitled to a discharge, but also to decide whether the trustee is entitled to claim certain assets...
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MEMORANDUM OPINION This matter comes before the court on the motion of Citizens Fidelity Bank and Trust Company (Citizens) for this court to amend or make additional findings of fact *285in the opinion entered in this adversary proceeding March 5, 1986. After considering Citizen’s motion and the trustee’s response, we overrule Citizen’s motion to amend for the reasons discussed below. In the 90 d...
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*9 REASONS FOR JUDGMENT This matter is before the court on motion of Louisiana Gas System [LGS] for summary judgment. The above-referenced adversary proceedings have their genesis in a series of financial dealings between the debtor, Delta Energy Resources, Inc. [Delta], LGS, and Damson Oil Company [Damson]. LGS purchased gas produced by wells operated by Delta. Delta’s petition ...
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MEMORANDUM OF DECISION This matter came before the court for trial upon the complaint of Roger Schloss-berg, trustee, seeking recovery of an alleged preference. The operative facts are not in dispute. Between March 18, 1988, and June 16, 1983, and within 90 days before the filing of Mr. Krumpe’s Chapter 7 petition, property of the debtor in the amount of $1,484.77 was transferred to the d...
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MEMORANDUM DECISION This adversary proceeding was commenced by Plaintiff Victor C. Gennari to *911 enjoin the United States Department of Treasury and Internal Revenue Service (“United States”) from collecting a penalty assessed pursuant to 26 U.S.C. § 6672 (“Internal Revenue Code” or “IRC”). The plaintiff also seeks return of amounts collected by setoff to satisfy the assess...
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The debtors above named filed their joint petition for relief under Chapter 11 of the Bankruptcy Code on December 7, 1983. They continued in the operation of their dairy farm until November 20, 1984, when at their request the case was converted to a case under Chapter 7. Presently before the Court is the trustee’s objection to a certain exemption claimed by the debtors pursuant to section 522(b) ...
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ORDER This cause came on for consideration upon the Motion of SOCIETY BANK, an alleged creditor in these Chapter 13 proceedings, for an Order relieving it from the automatic stay. The Court finds the relevant facts to be as follows: 1. On January 28, 1986, DENNIS S. QUINN (“Debtor”) filed a Petition for Relief under Chapter 13 of the Bankruptcy Code. His Schedules listed *287 ...
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59 B.R. 917 (1986) In re NORTH SIDE LUMBER COMPANY, a partnership of Anna M. Bevens; The Estate of Dorval Bevens, deceased, Norman Jean Vincent and H. David Smith, Trustees of the Norma Jean Vincent Trust; and H. David Smith, Trustee of the Ryan D. Vincent Trust, the Pamela Jean Vincent Trust, and the Timothy L. Vincent Trust, Debtor. NORTH SIDE LUMBER COMPANY, Plaintiff, v. INDUSTRIAL INDEMNITY ...
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*782 MEMORANDUM In his schedule of exemptions, the debtor claimed as exempt $2,000 of insurance proceeds held by a creditor, Marion Bank & Trust Company. The bankruptcy trustee did not object to this claim of exemption within 30 days after conclusion of the meeting of creditors as required by Bankruptcy Rule 4003(b). However, after the trustee recovered $3,000 from the Bank, he o...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the plaintiff, Patricia H. Knee (“Knee”), for relief from the automatic stay of 11 U.S.C. § 362 in order to proceed against certain real property situated in the City of Richmond, Virginia on which Knee has a deferred purchase money deed of trust lien. The property is owned by the debtor and defendant in the above-styl...
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MEMORANDUM OPINION The debtors, William and Cecelia White, seek to exclude from the bankruptcy estate, or claim as exempt, an interest of William White in a “Profit Sharing Trust” *390 (“Trust”) established by White Metal Fabricating, Inc. (“White Metal”) which employed William White as its Chief Executive Officer. This matter has been before the Bankruptcy Court, the Distric...
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MEMORANDUM OF DECISION (Motion to Modify Stay) This matter is before the court on the motion to modify the stay brought by Nor-west Financial Leasing, Inc. (“Norwest”), the purported holder of a lien on the debt- or’s 1977 Mercury automobile. The trustee and Norwest have stipulated that the sole issue is whether Norwest has a perfected security interest in the automobile. Both the debtor and the t...
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ORDER DENYING DEBTOR’S MOTION TO VACATE Heard on April 10, 1986, on the debtor’s motion to vacate an order entered on January 29, 1986, wherein Greenwood Credit Union was granted relief from the automatic stay, 11 U.S.C. § 362(d),1 with leave to foreclose its mortgage on property at 873-877 West Shore Road, and 174 Spring Grove Road, Warwick, Rhode Island. The order in question was entered after d...
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MEMORANDUM OPINION Background On March 6, 1986 a hearing was held concerning the adequacy of the amended disclosure statement and separate disclosure statement for Class C creditors1 filed by the debtors on January 31, 1986 and concerning the notice given of the March 6 hearing on the disclosure statements. Findings of Fact and Conclusions of Law Evidence presented at the hearing revealed that...
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OPINION This opinion explains why this Court, having twice extended the period of the Debtor’s exclusive right to file a plan, has now, by Order dated March 31, 1986, again extended the exclusivity period for filing a plan, and also extended the exclusivity period for obtaining acceptances, from March 31 to June 30, 1986. Part III of this opinion also explains why this Court is today signing an...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding was tried by the court on March 6 and 7, 1986. The court having heard the testimony, examined the evidence, 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 findings of fact and conclusions of law. This is a ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause having come on before the Court on March 19, 1986, upon the Complaint of the Trustee to avoid a preferential transfer pursuant to Section 547 of the Bankruptcy Code and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the argument of counsel and being othe...
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59 B.R. 905 (1986) In the Matter of The SHERMAN-NOYES & PRAIRIE APARTMENTS REAL ESTATE INVESTMENT PARTNERSHIP, An Illinois Limited Partnership, Debtor. In Matter of Paul D. WILCHER, Sr., Debtor. In Matter of Carol Ann WILCHER, Debtor. Bankruptcy Nos. 80-B-03928, 82-B-08657 and 82-B-13270. United States Bankruptcy Court, N.D. Illinois, E.D. April 22, 1986. *906 John K. Kallman, Rudnick & W...
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ENTRY ON OBJECTIONS TO CONFIRMATION OF AMENDED PLAN I. HISTORY OF THE PROCEEDING Hoosier Hi-Reaeh, Inc. (“Hoosier”), the debtor in this Chapter 11 proceeding, filed its Amended Disclosure Statement and Amended Plan of Liquidation (“Amended Plan” or “Plan”) on August 7, 1985. The *36 Amended Disclosure Statement was approved on October 10, 1985. On December 2, 1985, ...
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MEMORANDUM OF DECISION NATURE OF THE CASE The instant adversary comes before the Court upon the complaint of the Trustee and Farmers Cooperative Company of Rush Center, Kansas, to have the debtors’ interest in a trust determined to be an asset of the estate and to set aside a mortgage on the trust property. FACTS The Court finds the material facts to be as follows: On ...
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MEMORANDUM OPINION In this clear case of forum-shopping, considerations of jurisdiction and venue prevent us from entertaining the action. The issue before us, in general terms, is whether a bankruptcy court other than the one in which the bankruptcy case is pending may assert independent jurisdiction in an adversary proceeding on a claim which arose prior to the commencement of the bankr...
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DECISION AND ORDER An adversary proceeding was initiated on December 3, 1985 by the Trustee, Ira Greene, (hereinafter the “Trustee”), against the attorney for the Debtor, Sydney Schmukler (hereinafter “Defendant”). The complaint seeks a turnover order pursuant to 11 U.S.C. § 542(a) of $25,000, which sum represents the settlement of a personal injury action commenced on the Debtor’s behalf...
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DECISION AND ORDER GRANTING MOVANTS’ MOTION FOR RELIEF FROM STAY UNDER 11 U.S.C. § 362(d)(1) This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(G) in which the creditor-movants, Robert and Nancy Knez, seek relief from the automatic stay (11 U.S.C. § 362(a)) pursuant to 11 U.S.C. § 362(d)...
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MEMORANDUM OPINION Main Line Federal Savings and Loan Association (“Main Line”), the first mortgagee of the Chapter 13 debtor’s real property, has filed a motion to dismiss the debtor’s bankruptcy case because the filing of the case allegedly violated 11 U.S.C. § 109(f)(2). The debtor opposes the mo *20 tion. For the following reasons, we shall deny Main Line’s motion to dismiss. 1 On May...
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60 B.R. 568 (1986) In the Matter of DAN-VER ENTERPRISES, INC., Debtor. Bankruptcy No. 79-887, Motion No. 85-4220. United States Bankruptcy Court, W.D. Pennsylvania. April 22, 1986. Paul M. Daniels, Pittsburgh, Pa., for debtor. Edward A. Olds, Pittsburgh, Pa., for Louis & Evelyn Sapp. Anthony A. Barrante, Pittsburgh, Pa., for subsequent creditors. *569 MEMORANDUM OPINION BERNARD MARKOVITZ, B...
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MEMORANDUM DECISION On February 6,1980, the Circuit Court of Brown County, Wisconsin, in case no. 79 CV 1734, dissolved the marriage between the plaintiff, Elizabeth Scannell Howe, and the debtor/defendant Steven James Scan-nell. The final judgment of divorce, which incorporated a stipulation (“the divorce stipulation”), required the defendant to pay the following relevant amounts: A. as ...
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FINAL JUDGMENT THIS CAUSE having come before the Court for trial on the adversary complaint to avoid a preference and the Court having received a stipulated set of facts, having reviewed the documentary evidence and the post trial memorandum of law submitted by the parties, the Court does hereby set forth the relevant stipulated facts and documentary evidence and does thereupon enter the follow...
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ORDER ON VERIFIED MOTION FOR PRELIMINARY INJUNCTION OF COLONIAL DRIVE, INC., DEBTOR/PLAINTIFF The matter under consideration is a motion for preliminary injunction filed by Colonial Drive, Inc. (Debtor). The Debtor seeks a preliminary injunction to prohibit Southeast Bank, N.A. (Bank), from proceeding with the currently pending civil suit filed by the Bank against Donald P. Fischer, James G. Bing...
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MEMORANDUM AND ORDER I. The Facts This matter is before the Court on the objections of Avenue Bank Northwest to the debtors’ claim of a homestead exemption in their mobile home. Both the Bank and the debtors have fully briefed the question. The facts do not appear to be in serious dispute. The debtors filed their Chapter 7 petition on February 12, 1985. Among their assets is ...
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MEMORANDUM AND ORDER This matter is before the Court to consider confirmation of the Debtor’s Second Amended Plan of Reorganization filed on February 13, 1986, and to consider the Motion to Dismiss, initially filed December 28, 1984, and renewed on February 3, 1986, by Farmers State Bank of Hawarden, Iowa (BANK). The Second Amended Plan has been accepted by the Class 2 creditor, First Sta...
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MEMORANDUM OF DECISION This adversary proceeding is before the Court on the motion of the Chanute Production Credit Association (PCA) for sanctions and entry of default judgment under Bankruptcy Rule 7037 and Federal Rule of Civil Procedure 37. The debtors are represented by Mary Catherine Jackson and the PCA is represented by Martin R. Ufford. FACTS The Chanute PCA filed this adversary pro...
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ORDER This matter came before the Court on February 6, 1986, on motion of the Debtors to avoid liens on certain property. Norbert Traxler appeared representing the Debtors. John Markert and Robert Kucera appeared representing the State Bank of Lonsdale, in opposition. The parties were directed to submit briefs and to inform the Court regarding the need for further evidentiary hearing. On April ...
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ORDER At Butte in said District this 21st day of April, 1986. On December 24, 1985, the Debtor-in-Possession filed an adversary Complaint to Void a Preference. The essential allegations of the Complaint recite: “4. Within 90 days prior to the filing by the Debtor and Plaintiff of its petition for relief under Chapter 11 of the Bankruptcy Code, the Defendant perfected a security ...
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MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This adversary proceeding is one of thirty-six similar adversary proceedings brought by Chester B. Salomon, the Trustee of Black & Geddes, Inc., a freight forwarder and now a Chapter 7 debtor. See In re Black & Geddes, Inc. (Trustee v. Pan American World Airways), 35 B.R. 827 (Bankr.S.D.N.Y.1983) (Statute of lim...
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OPINION The focus of controversy in the case before us is whether a debtor may properly propose a chapter 11 plan which separately classifies general unsecured creditors from bailors of goods under 11 U.S.C. § 1122 of the Bankruptcy Code (“the Code”). The dispute is limited to whether the proposed classification is allowable and does not extend to the question of whether the plan may be confirm...
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OPINION The primary point for consideration in this chapter 7 case is whether we should *313 grant a mortgagee’s motion for relief from the automatic stay imposed by 11 U.S.C. § 362(a) of the Bankruptcy Code. Since we find that the indebtedness secured by the property exceeds the value of the property, we will grant relief from the automatic stay. The facts of this case are as follows: 1 ...
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MEMORANDUM OPINION AND ORDER Before the Court is the application of Berkeley H. Riley requesting the Court to determine and order administrative expenses in the sum of $6,460.12. Upon hearing, the Debtor objected primarily to the attorneys’ fees paid to BIRD, KINDER & HUFFMAN in the amount of $2,588.00. Additionally, the Debtor contends that medical expenses paid for Riley’s family d...
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OPINION AND ORDER The debtor appears by Terrence Byrne and submits application to avoid liens of Citizen Bank and Trust (CBT). CBT, by Robert Kuehn and Thomas Mallery, opposes the application. A hearing was held on this matter on March 27, 1986, and the issue has been submitted for determination by briefs. It is the conclusion of the court that the application should be denied. On December 5,...
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OPINION This is an expedited .appeal under Ninth Circuit Bankruptcy Appellate Panel Rule 6 decided without oral argument. The debtor, a tenant of appellee, appeals from an order declaring its lease rejected by virtue of 11 U.S.C. § 365(d)(4). This section provides that unless a lease of nonresidential property is assumed or rejected within 60 days from the order for relief, the lease is deeme...
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OPINION The issues in these appeals are identical. The United States appeals from orders overruling the government’s objections to Chapter 11 plans proposed by debtors. We reverse and remand. STATEMENT OF THE CASES Each corporate debtor (Welco Industries, Inc. and William M. Ramsey, D.D.S., P.C.) is indebted to the Internal Revenue Service (IRS) for unpaid withholding and F.I.C....
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OPINION AND ORDER Before the Court is a motion filed by defendant Constance Donald (“Donald”) for summary judgment denying all relief sought by plaintiff/debtor L.A. Clarke & Son, Inc. (“Clarke”). The motion raises solely the defense that Clarke’s complaint *857 against Donald was filed too late — that it is barred by applicable statutes of limitations. 1. Clarke’s...
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STATEMENT OF CASE AND FINDINGS OF FACT On March 17, 1983, The Cropper Company, Inc. (Debtor), filed a voluntary petition under Chapter 11 of the Bankruptcy Code. On March 1, 1984, Debtor’s case was converted to Chapter 7 of the Bankruptcy Code, and Mr. William M. Flatau was appointed as the trustee. As trustee, Mr. Flatau (Plaintiff), filed a complaint on January 25, 1985, against F. Ray J...
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DECISION On May 24, 1985, Gary Schultz, trustee of the debtor’s Chapter 7 estate (hereinafter “plaintiff”), instituted three adversary proceedings against the debtor. The cause of action to be presently determined constitutes plaintiffs objections to the debtor’s general discharge under 11 U.S.C. § 727. 1 The plaintiff opposes the debtor’s discharge on three grounds: 1) the d...
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DECISION AND ORDER DISMISSING INVOLUNTARY PETITION On October 1, 1984 an involuntary petition under Chapter 7 of the Bankruptcy Code (the “Code”) was filed against Equi-dyne Properties, Inc. (“Properties” or “Debtor”). The Petitioners were Max M. Koppel (“Koppel”), Salvatore J. Stile (“Stile”), Pearl W. Perlmutter (“Perlmut-ter”) (through power of attorney given to Sanford Goldberg), Maye...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the motion of Accurate Die Casting Company, a Chapter 11 Debtor In Possession (DIP), seeking injunctive relief which, if granted, would preliminarily enjoin the National Labor Relations Board (NLRB) from continuing to administratively adjudicate an action filed with the NLRB by Local Lodge # 439, District 54, International Associ...
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MEMORANDUM The issue in these consolidated proceedings is whether agreements are true leases or disguised sales and security interests. I find that the agreements are security agreements and the transactions are sales not leases. The following constitute findings of fact and conclusions of law. Bankruptcy Rule 7052. This is a core proceeding. 28 U.S. C.S. § 157(b)(2)(M) (Law.Co-op.19...
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MEMORANDUM OPINION AND DECISION FACTS Le Marquis Associates (Le Marquis), a limited partnership, was formed in 1981 in *721 order to purchase an apartment complex located at 935 Johnfer Street [sic] in Sacramento, California. On January 8, 1981, Le Marquis executed a promissory note in the amount of $600,000 in favor of the seller, Pasatiempo Properties (Pasatiempo). The...
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ORDER APPROVING REJECTION OF EXEMPTION AGREEMENT BETWEEN ARROW AND PORT AUTHORITY This cause came before the Court for hearing on March 13, 1986, upon the Debt- or in Possession’s Alternative Motion to Reject Executory Contract. The Court has reviewed the motion and memoranda of law submitted by both Arrow Air, Inc., Debtor in Possession (“Arrow”), and the Port Authority of New York and N...
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ORDER This case is now before the Court on a Motion filed on April 30, 1985 by TIE Communications Corp. (“TIE”) to Amend or *825 Vacate the Order entered on February 7, 1985 by Bankruptcy Judge Norton. 1 A response to the motion was filed on May 13, 1985 by the debtor in possession, F/S Communications Corp. (“F/S”). FINDINGS OF FACT In the Order of Februa...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT The Pleadings Gary Williams (“plaintiff”), secured creditor of L & S Industries, Inc. (“debtor”), filed this Adversary Complaint to Modify the Automatic Stay so as to enforce a note and security agreement he held in debtor’s assets. 1 Debtor answered and pleaded with fourteen Affirmative Defenses and/or Countercl...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of Joyce A. Childress (“plaintiff”) *829for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, made applicable to the case herein by prior Bankruptcy Rule 756, on her adversary proceeding against Aurora National Bank (the “Bank”) for damages based on an alleged breach of duty by the Bank while acting as dis...
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59 B.R. 836 (1986) In re Janice June DOUGLAS, Debtor. Bankruptcy No. 85-40792. United States Bankruptcy Court, D. Kansas. April 17, 1986. Stephen W. Cavanaugh, Fisher, Heck & Wright, P.A., Topeka, Kan., for debtor. *837 Dale L. Somers, Eidson, Lewis, Porter & Haynes, Topeka, Kan., for Merchants Nat. Bank. G. Steven Ruprecht, Margolin & Kirwan, Kansas City, Mo., for Western Cas. and Su...
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ORDER This case is before the Court on the debtor’s motion to avoid the lien of the Central Bank and Trust Company on tools and equipment used in his construction business and the Bank’s objection to the lien avoidance. The debtor is represented by J. Michael Gillaspie and the Bank is represented by David J. Lund. FINDINGS OF FACT The debtor owns power and hand tools and other e...
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MEMORANDUM-OPINION This matter comes before the Court on plaintiff’s Complaint objecting to the discharge of certain debts under 11 U.S.C. Section 523(a)(5)(B). The plaintiff is the former wife of the debtor-defendant, and the “debts” in question arose from the state court decree disposing of the property interests, maintenance and support issues flowing from this divorce proceeding. At issue...
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REASONS FOR DISPOSING OF MOTION TO DISMISS COMPLAINT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. *952§ 1334(b). By Local Rule 29 (and in the Short case under special order of January 2, 1986), under the authority of 28 U.S.C. § 157(a), the United...
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*833MEMORANDUM OPINION AND ORDER This matter comes before the Court on the parties’ several motions for an Order to Disburse, but which in reality are applications to approve fees of the various counsel out of funds in the Registry of the Clerk of Circuit Court of Vernon County, Missouri. The fund arose as a result of a jury tried case in that court wherein debtors were the plaintiffs in an actio...
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MEMORANDUM AND DECISION The debtors, Julian A. Scarpa and Sybil E. Scarpa, brought a motion to avoid five judgment liens which were allegedly impairing their homestead exemptions. Because there was no opposition voiced by four of the judgment lienholders, the motion was granted avoiding those four liens. The fifth lienholder, Edgar W. Bly, opposed the motion on the grounds that the judgment was...
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ORDER The matter before the Court is confirmation of a Liquidating Plan of Reorganization filed March 10, 1986, by Federal Land Bank of St. Paul, the First National Bank of Milnor, and Production Credit Association. The following claim or interest holders have voted to reject the Plan: CLASS CLAIM OR INTEREST IN WHICH HOLDER CLASSIFIED BALLOT TABULATION STATUS AMOUNT OF CLASS Sargent County...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the motion of Fleet Credit Corporation (Fleet) for leave to file its notice of appeal, instanter, respecting an order earlier entered by this Court. In response thereto, the Court-appointed Trustee, Richard A. Baumgart (Trustee), caused to be filed his brief in opposition to the granting of such leave. Fleet’s motion relates to an orde...
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This matter came on for consideration upon the Application of counsel for Debtor for allowance of fees and expenses for professional services rendered to Debtor in these Chapter 7 proceedings. This Chapter 7 case was filed on July 12, 1983. The schedules stated that there was Forty-Three Thousand, Three Hundred Sixty-Six & 41/100 Dollars ($43,366.41) in secured debt and One Hundred Forty-T...
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MEMORANDUM I In this adversary proceeding plaintiffs allege the nondischargeability of a judgment entered in their favor in the Circuit Court for Knox County, Tennessee, in the amount of $40,000.00. Civil Action No. 3-774-79, styled James E. Hardin, James C. Hardin and Ralph Majors v. Albert Caldwell, et al. Asserting that the state court jury verdict and judgment against the defendant-debt...
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ORDER TEMPORARILY DISALLOWING AND HOLDING IN ABEYANCE CLAIM FILED BY UNION OF FLIGHT ATTENDANTS FOR DAMAGES ARISING FROM NEW YORK AIR GRIEVANCE AND ESTIMATING THAT CLAIM AT ZERO VALUE PURSUANT TO SECTION 502(c) OF THE UNITED STATES BANKRUPTCY CODE This matter came on for consideration of the Motion of Continental Airlines, Inc. (“CAL”) and Texas International Air Lines, Inc. (“TXIA”), Deb...
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*816MEMORANDUM OF OPINION AND ORDER Plaintiff-Trustee filed the above-styled adversary complaint to recover funds from the Defendant, Chapel Hill Harvester Church, Inc. (“Defendant”). It is stipulated that such funds were transferred to Defendant by the Debtors, Earl and Kathleen Moses, (“Debtors”) while they were insolvent. Plaintiff-Trustee alleges that such a conveyance is fraudulent under 11 ...
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ORDER This matter came before the court upon the motion of debtors to avoid liens on exempt property. Christopher A. Elliott, attorney, appeared on behalf of debtors. James L. Wiant, attorney, appeared on behalf of Norwest Bank Sauk Rapids (“Nor-west”). Jeffrey Carpenter, attorney, appeared on behalf of John Deere Credit Company (“John Deere”) and Harlan Beck, doing business as Paynesville Impl...
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MEMORANDUM OPINION This matter came on for a hearing on January 31, 1986, in Omaha, Nebraska upon the creditor’s motion to reconsider the court’s order of December 9, 1985, wherein the lien of ITT Financial Services was avoided. Facts Debtors filed their voluntary petition under Chapter 7 of the Bankruptcy Code on July 31, 1985. On Schedule B-4, debtors claimed as exempt: ...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing on the motion of Donald Dietrich, Roger and Alice Prescott, Anthony and Naomi Schommer, Robert and Patsy Janson and Target Stables, Inc. (collectively the “Lessors”), for an order pursuant to 11 U.S.C. section 365(d)(4) determining that certain oil and gas leases with the debtor are terminated; or, in the alternative, to grant reli...
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MEMORANDUM OPINION AND ORDER The issue before the Court is the appropriate distribution of approximately $27,-000.00 in proceeds from sale of inventory. Resolution of this issue requires a determination of (1) whether the Defendant, Flat Top National Bank (“FTNB”), has a perfected security interest in the inventory proceeds, (2) whether Mullins, Inc. has a claim for rent which is superior...
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MEMORANDUM DECISION FACTS Attorney James Beshears (“Beshears”) seeks compensation in the amount of $5,861 for fees and $39.40 as cost reimbursement for professional services rendered to Julius Pearl, Trustee, between July 14, 1983 and February 20, 1986. Beshears represented Pearl in an adversary proceeding brought by Automated Medical Analysts (“Automated”), seeking to surcharge the trustee f...
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MEMORANDUM AND ORDER People’s Gas System, Inc. (“PGS”) seeks relief from the automatic stay, 11 U.S.C. § 362(a), so that it may apply a security deposit it holds to pay for post petition natural gas it supplied to the debtor, Thatcher Glass Corporation (“Thatcher”). Thatcher in turn seeks an order directing PGS to return the security deposit together with interest thereon after deducting ...
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Plaintiff, Trustee Services Corporation, the trustee appointed in the Hodge Forest Industries, Inc. Chapter 7 bankruptcy case, seeks in this adversary proceeding to avoid East River Lumber Co., Inc.’s perfected security interest in a lease of premises, and in equipment and inventory necessary to operate a sawmill which are part of the estate. Trustee Services argues that, pursuant to I.C. § 28-...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT DENYING THE DEFENDANT’S DISCHARGE IN BANKRUPTCY The plaintiff United States of America seeks denial of the defendant’s discharge in bankruptcy pursuant to section 727(a)(6)(A) of the Bankruptcy Code, which provides for denial of discharge if it is shown that “the debtor has refused, in the case, ... to obey any lawful order of the c...
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MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS The above-styled adversary proceeding came before the Court for a pre-trial conference and upon the motion of the debtor to dismiss the complaint to determine dis-chargeability of a debt under 11 U.S.C. § 523(c) as being untimely filed and for failure to state a claim upon which relief may be granted. On October 5, 1984, the debtor fi...
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MEMORANDUM REASONS FOR OPINION The disclosure statement in this case came on for approval on March 31, 1986. Several creditors and the Unsecured Creditors’ Committee filed objections to approval of the disclosure statement. In response, the Debtor asserts that no disclosure statement is required since the Debtor will request confirmation under § 1129(b) of the Bankruptcy Code. 1 ...
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DECISION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this Court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A). The plaintiff and debtor filed this action alleging the defendants violated the automatic stay when defendant repossessed the vehicle of the plaintiff. This matter is before ...
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MEMORANDUM OPINION Before this Court is an Application For Professional Fees By Petitioner, Mr. Lewis Simon and S-J Corporation (“S-J”), averring that it procured a lease at the Debtor’s request, that said lease constitutes the sole asset of the estate, and that it should be compensated in the amount of $450,000.00, based upon the fees received in past conduct with the Debtor and upon the...
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60 B.R. 199 (1986) In re R.I. LITHOGRAPH CORPORATION, Debtor. R.I. LITHOGRAPH CORPORATION, Plaintiff, v. The AETNA CASUALTY AND SURETY COMPANY, Defendant. Bankruptcy No. 8300453, Adv. No. 830245. United States Bankruptcy Court, D. Rhode Island. April 14, 1986. *200 Allan M. Shine, Moss Patashnik, Winograd, Shine & Zacks, P.C., Providence, R.I., for plaintiff-debtor. Amedeo C. Merolla, Asquith...
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MEMORANDUM OPINION ON DISMISSAL OF ADVERSARY PROCEEDING This matter came on for consideration by this Court after notice and hearing on the defendants’ motions 1 to dismiss this adversary complaint, and after hearing arguments of counsel and considering the pleadings and memorandum presented, this Court concludes that the motions should be granted and this adversary proceeding ...
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MEMORANDUM OPINION This case is before the Court on remand from the United States Court of Appeals for the Fourth Circuit for consideration of what effect the conversion of the case to a case under 11 U.S.C. Chapter 7 had on a previous Order of Distribution entered by this Court on May 27, 1983) [In re Frank Meador Buick, Inc., 31 B.R. 28 (Bankr.W.D.VA 1983)]. Briefly stat...
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59 B.R. 301 (1986) In re Rene REYES and Mary Reyes, Debtors. Bankruptcy No. 86-00610-LM13. United States Bankruptcy Court, S.D. California. April 11, 1986. Robert B. Shanner, San Diego, Cal., for debtors. Harry W. Heid, San Diego, Cal., trustee. MEMORANDUM DECISION JOHN J. HARGROVE, Bankruptcy Judge. On March 4, 1986, Guild Mortgage Company (hereinafter "Guild") filed an objection to confirmatio...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On July 31, 1981, the Debtor filed a petition for relief under Chapter 11 of the United States Bankruptcy Code, which was subsequently converted to a Chapter 7 proceeding pursuant to this Court’s Order of June 15, 1982, at which time Plaintiff was appointed Trustee in Bankruptcy. In Schedule B-2 of Debtor’s Petition, Debtor listed among his assets a coin ...
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ORDER ON APPLICATION TO APPROVE EMPLOYMENT OF SPECIAL COUNSEL On January 27, 1986, Macon Prestressed Concrete Co., Debtor, filed its “Application *377 to Approve Employment of Special Counsel,” and on February 28, 1986, R. Wayne Duke, an unsecured creditor, filed his “Opposition to Application for Appointment of Special Counsel.” The application and the objection thereto came...
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*766 DECISION AND ORDER On March 19, 1986, this Court entered a decision and order (the “March 19 Opinion”), 58 B.R. 857, denying confirmation of the Debtors’ Second Amended Plan of Reorganization. By notice of motion served March 31, 1986, and filed on April 1, 1986, the Debtors and the Official Creditors’ Committee seek an order pursuant to Rule 9023 of the Rules of Bankruptcy Procedure, wh...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon Society National Bank’s (Society) Objection To Confirmation of the Debtors’ Chapter 13 Plan. In response thereto, the Debtors caused to be filed their Brief In Opposition To Confirmation Of Plan. Factual Findings: The Debtors’ personal residence was sold at a sheriff’s sale on October 28, 1985. Subsequent thereto, on Oct...
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MEMORANDUM OPINION & ORDER This cause came on for consideration upon the Motion for Relief from Stay by HARRY C. LOBALZO & SONS, INC., dba HMR SALES & SERVICE (“Movant”) and upon the objection to that Motion by the Debtor-in-Possession (“Sunrise”). The parties have presented testamentary and documentary evidence and argument on the two issues raised by Sunrise challenging the existence of...
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OPINION At the heart of this dispute the question is whether the debtor is entitled to damages for the foreclosure of a mortgage on a parcel of her realty when she did not receive notice of the foreclosure until shortly before the sheriff’s sale. For the reason stated herein, we will deny the debtor’s request for damages. The facts of this case are as follows:1 The debtor purchased a parcel of rea...
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OPINION The question under adjudication in the case at bar is whether we should grant the debtor’s request for turnover of property seized by his landlord prior to the filing of the debtor’s chapter 7 petition. On the basis of the reasons set forth below, we conclude that the debtor is not entitled to the relief sought. The facts of this case are as follows: 1 The debtor was renting a parce...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS’ CLAIM FOR LABOR PROTECTIVE PROVISIONS BENEFITS The following are facts either stipulated or established by the evidentiary record in this case in previous matters, of which the Court takes notice, and is considered a proper and adequate basis, on which to make these “Find...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO CLAIMS BY INDIVIDUAL EMPLOYEES FOR LABOR PROTECTIVE PROVISIONS The following are facts either stipulated or established by the evidentiary record in this case in previous matters, of which the Court takes notice, and is considered a proper and adequate basis on which to make these “Findings” and “Conclusions”: FINDINGS OF FACT 1. On August 14...
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MEMORANDUM OPINION This matter is before the Court upon motion of the Chapter 7 Trustee to fix commissions and expenses. The issue before the Court is whether the fees awarded to the preceding Chapter 11 Trustee must be considered and taken into account in fixing the fees of the Chapter 7 Trustee under 11 U.S.C. § 326 when the case has been converted from a case under Chapter 11 to a case und...
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MEMORANDUM DECISION RE: MOTION FOR RELIEF FROM STAY Movant Orange Belt District Council of Painters No. 48 (“Union”) seeks relief from the automatic stay in order to arbitrate a dispute between it and debtor concerning interpretation of their collective bargaining agreement (the “Agreement”). Union contends that a non-debtor corporation controlled by the wife of the principal shareho...
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ORDER ON DEBTOR’S MOTION FOR ORDER DETERMINING VALUE OF SECURED CLAIM, SURCHARGING SECURED CLAIMANT, DETERMINING AMOUNT OF OUTSTANDING DEBT AND CLARIFYING ALLOCATION OF ADEQUATE PROTECTION PAYMENTS TO OUTSTANDING DEBT AND CREDITOR’S MOTION FOR ORDER INSTRUCTING DEBTOR-IN-POSSESSION TO DISBURSE SALE PROCEEDS AND APPLICATION FOR INTERIM COMPENSATION AND REIMBURSEMENT OF COSTS THIS CAUSE hav...
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MEMORANDUM OPINION This adversary proceeding was commenced by debtor, Twelve Oaks, Ltd., to determine the validity, priority, and extent of liens or interests in property of the estate, to recover a fraudulent conveyance from Florida National Bank, and to declare certain mechanics liens filed against the property of the estate invalid. Facts Debtor, Twelve Oaks, Ltd., a limi...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the Complaint to Determine Dischargeability of Debt filed by Plaintiff, SAMARIA K. ROSS, represented by CALLUM, ANDERSON & DEITSCH, and upon the response thereto filed by Debtor, THOMAS CUNNINGHAM, represented by NICHOLAS M. SPINA, and the Court, having considered the record in this case and the pleadings on file, and havi...
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Reasons for Judgment This matter is before the court on a motion for summary judgment filed by the trustee-plaintiff. This adversary proceeding is an action to avoid an allegedly preferential transfer, pursuant to section 547 of the Bankruptcy Code (11 U.S.C. §§ 101 et seq.) A motion for summary judgment may be granted where there exists no material issue of fact, and the mover is entitled to ju...
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Reasons for Judgment This matter is before the court upon the applications of Peter C. Piccione and Charles N. Wooten, Ltd., co-counsel for the debtor herein. Objections thereto were filed by Macro Oil Company, Inc., Randall L. Guidry and Doerles Institutional Wholesale, Inc. Upon the applications, testimony of applicants and the entire record of the bankruptcy case the court makes the follow...
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ORDER Continental Corporation (Continental) filed a motion for leave to amend its proof of claim. The motion is opposed by John Grigsby, as Trustee under the White Motor Corporation Reorganization Trust Agreement and successor in interest to White Motor Corporation (White Motor). Upon consideration of counsels’ arguments and briefs the Court finds: 1. On September 4, 1980, White Motor filed...
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ORDER The United States of America, on behalf of William E. Brock, Secretary of Labor, United States Department of Labor, has filed complaints to determine that the automatic stay provisions of 11 U.S.C. § 362(a) do not apply to certain judicial and administrative enforcement actions brought by the *368 Secretary against debtor, Jose Aldoco Perez, and co-respondent J. Guadalupe Perez Aldoco, ...
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ORDER ON DEBTORS’ MOTIONS TO AVOID LIEN OF ATLANTIC NATIONAL BANK OF FLORIDA The matters under consideration are presented in two separately filed voluntary Chapter 7 cases, one by Edward P. Russell, Case No. 85-2480, and the other by Georgia L. Russell, his wife, Case No. 85-2479. Both Debtors filed a motion pursuant to § 522(f)(1) and Bankruptcy Rule 4003(d), seeking to avoid a judgment...
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*195 MEMORANDUM AND ORDER On August 20, 1986, a hearing was held by the Court on a permanent injunction to prevent the Rapides Parish District Attorney’s (D.A.’s) Office from further criminal action against Carl Warren, President, and sole shareholder of the above-captioned closely held corporation, under La R.S. 14:72 (the worthless check statute). Although served, no one from the D.A.’s off...
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MEMORANDUM OPINION AND ORDER This case came on for hearing on March 19, 1986 on the defendants’ Motions To Dismiss the debtor-plaintiff’s Complaint For Injunctive Relief, For Order to Compel Dismissal Of Counterclaims Filed In State Court, And For Contempt For Violating The Automatic Stay. Since this matter is before the court on motions to dismiss, the court must view the facts alleged in the ...
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DECISION AND ORDER DENYING CROSS-MOTIONS FOR SUMMARY JUDGMENT Timber Line, Ltd. (“Timber Line”), a company which had been engaged in the shipping business, filed its Chapter 7 petition on January 27, 1981. The schedules accompanying the petition list unsecured claims totalling $1,149,443.06. Assets are stated to be $398,559.13, consisting principally of freight receivables. Dorothy Ei-sen...
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DECISION AND ORDER MODIFYING AUTOMATIC STAY Heard on James Mattingly’s motion for relief from the automatic stay, 11 U.S.C. § 362, wherein he requests permission to proceed with an action against the debtor which is pending in the Providence County Superior Court. Mattingly’s state court action was filed in Newport County Superior Court in April 1985, seeking compensatory damages in ...
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60 B.R. 27 (1986) In re Albert W. NASH, aka A.W. Nash; Joyce H. Nash; and Albert W. Nash, as Trustee for the A.W. Nash Family Trust, Debtors. PALO VERDE MANAGEMENT AND FINANCIAL SERVICES CO., an Arizona corporation, Movant/Appellee, v. Albert W. NASH, aka A.W. Nash; Joyce H. Nash; and Albert W. Nash, as Trustee for the A.W. Nash Family Trust; Robert Busch, Trustee in Bankruptcy, Respondents, and ...
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DECISION This latest hearing in the court’s ten-year involvement in the Chapter X liquidation proceedings of The Hawaii Corporation (“THC”), concerns a certain Proof of Stock Interest submitted by the Bank of Honolulu. Pursuant to Chapter X Rule 10-401(f) of the Bankruptcy Act, the THC Trustee objects to the Bank’s stock interest claim on the authority of inter alia, Hawaii Rev...
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59 B.R. 266 (1986) In re Byron E. KOTTER, Hazel Kotter and Lloyd K. Kotter, d/b/a Lucky Lane Farms, Debtors. Byron E. KOTTER, Hazel Kotter and Lloyd K. Kotter, d/b/a Lucky Lane Farms, Petitioners v. FIRST STATE BANK OF BEARDSTOWN, Respondent. No. 184-02533. United States Bankruptcy Court, C.D. Illinois. April 8, 1986. *267 *268 Barry Barash, Galesburg, Ill., for debtors. Gary T. Rafool, Peoria, I...
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DECISION This matter came on to be heard on the Motion for Summary Judgment filed by the Defendant, the United States of America, Internal Revenue Service Division (IRS), and the Plaintiffs’ (Debtors’) cross Motion for Summary Judgment. The facts are not in dispute and only questions of law are presented. The debtors’ Federal Income Tax Returns for the years 1977 through 1980 were du...
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MEMORANDUM OF DECISION The debtor filed his Chapter 13 petition on March 23, 1982. In his Chapter 13 statement, the debtor disclosed a priority unsecured debt to the United States of America, acting through the Internal Revenue Service, (“IRS”) as follows: 1979 income tax $2,005.08 1980 income tax $4,226.50 1981 income tax $2,428.00 1981 4th quarter $ 369.93 941 tax _ $9,029.51 Th...
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MEMORANDUM RE: COMPLAINT TO DETERMINE DISCHARGEABILITY OF A DEBT This matter is before the Court on a Complaint to Determine the Dischargeability of a Debt, filed on July 8, 1981. An answer was filed on July 30, 1981. A trial was held before Judge Glennon on October 15, 1982. Judge Glennon retired before having an opportunity to decide the matter. The parties have agreed that the matter could b...
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MEMORANDUM ON FEE APPLICATION OF PIERSON, BALL & DOWD The background of this fee application exemplifies the contrast that, unfortunately, occurs in this case: a high degree of professionalism by counsel in the face of a type of harassment and intimidation that exceeds the bounds of normally anticipated advocacy and common civility even when presented pro se. The firm of Pierson, Bal...
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DECISION & ORDER Kathleen D. Jay (“Jay” or the “Claimant”) seeks an order from this Court modi *725 fying a previous order setting the bar date in this case (the “Bar Order”), to enable her to file a late proof of claim. Her counsel asserts that he did not learn of the Bar Order until September 24, 1985, after the time for filing claims had expired. Notice of the Bar Order wa...
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MEMORANDUM AND DECISION This adversary proceeding came before the Court upon the complaint of Fred W. Woodson, the Trustee in bankruptcy (Trustee) for B & S Motor Freight, Inc., debtor, seeking an adjudication that liens noted on certificates of title for nine tractor trucks and one semitrailer 1 (vehicles) are unperfected in Oklahoma pursuant to Okla. Stat. tit. 47, § 23.2b an...
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OPINION The proposition confronting us is whether the sales commission attributable to a prepetition sale is a prepetition claim in light of the fact that the commission was only payable when the purchaser paid for the goods, which occurred postpetition. For the reasons stated below, we conclude that the commission is a prepetition claim. Although set forth in our previous opinion in...
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OPINION The query here presented is whether a debtor has a cause of action under the Federal Tort Claims Act (“FTCA”) or the *281Administrative Procedures Act (“APA”) due to the failure of the United States Department of Housing and Urban Development (“HUD”) to decide whether to accept assignment of the debtor’s mortgage prior to foreclosure of that mortgage. On the basis of the reasons expressed...
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OPINION The issue under scrutiny is whether a creditor who violates the permanent injunction of 11 U.S.C. § 524(a) of the Bankruptcy Code (“the Code”) barring the collection of a discharged debt, may be held in civil contempt for that conduct and be surcharged attorneys’ fees. We hold that a violation of § 524(a) may be redressed through contempt and the exaction of attorneys’ fees. ...
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South Carolina National Bank (SCN) has filed, pursuant to 11 U.S.C. § 362(d), a motion for relief from the automatic stay afforded by 11 U.S.C. § 362(a). The trustee opposes the granting of the motion. The debtor has neither objected to, nor appeared to contest, the motion. For the reasons hereinafter stated, the motion is granted. FACTS The debtor, a used car dealership, filed a petition f...
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MEMORANDUM OPINION RE SPECIFICATION OF FACTS AND ISSUES WITHOUT SUBSTANTIAL CONTROVERSY; PARTIAL SUMMARY JUDGMENT; AND SUMMARY JUDGMENT I. INTRODUCTION Defendant and Third-Party Plaintiff, Herbert Tuchinsky (hereinafter “Tuchin-sky”) filed a Third-Party Complaint for Declaratory Relief, Indemnity and Contribution on November 22, 1982. Martin Goldberg, the Defendant in this actio...
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ORDER This case is before the Court on the debtors’ motion for the Internal Revenue Service to show cause why it should not be held in contempt for violating the automatic stay imposed by 11 U.S.C. § 362. The debtors are represented by Thomas A. Valentine and Jeffrey Cooper, and the IRS is represented by David R. House. FINDINGS OF FACT The debtors filed their chapter 13 petitio...
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OPINION-ORDER This matter comes before the Court in a confusing procedural posture. The debtor filed a motion to avoid and recover a preferential transfer in the amount of $103.89, representing wages garnished by the defendant-creditor within ninety days prior to the commencement of the case. The debt- or then filed an Amended Complaint (although there was never filed an original Complaint), al...
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MEMORANDUM OF DECISION (Application for Payment of Post-Petition Rent — Eastpoint Associates) Eastpoint Associates seeks an order of this court directing the debtor in possession to pay post-petition rent pursuant to the provisions of 11 U.S.C. § 365(d)(3). The debtor in possession opposes the application. The case involves interpretation of § 365(d)(3), which was enacted as a part o...
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MEMORANDUM This matter is before the Court on the motion of William A. Browner, Liquidation Trustee (the “Trustee”) of the Erco Liquidation Trust (the “Trust”) established under the Debtors’ Third Amended Plan of Reorganization (the “Plan”). The Trustee seeks an order directing the Internal Revenue Service (“IRS”) to apply payments under the Plan as designated by him. The IRS opposes the ...
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ORDER GRANTING TERMINATION OF AUTOMATIC STAY This matter came on for final hearing on March 7,1986, on the Motion for Surrender of Nonresidential Real Property or Termination of the Automatic Stay filed by Wickes Manufacturing Company and on the Motion to Approve Assumption of an Executory Lease of Nonresidential Real Property filed by Re-Trac Corporation (Debtor). Wickes was represented ...
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CONCLUSIONS OF LAW ON DISMISSAL OF PROCEEDING The Order of Dismissal entered in the above styled adversary entered on July 30, 1985 incorporates. Findings of Fact in accord with Bankruptcy Rule 7052 and Rule 52(a) of the Federal Rules of Civil Procedure. These conclusions are based upon those findings by this Court. The grounds for dismissal are that the matter is res judicata based on a ...
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ORDER This matter is before the Court on the request of Debtor, MARTIN LUTHER SAUNDERS, for an Order confirming the proposed Chapter 13 Plan filed in the above-captioned case. The facts are as follows: 1.Debtor filed a Petition and proposed plan of repayment under Chapter 13 of the Bankruptcy Code on January 10, 1986. A meeting of creditors pursuant to 11 U.S.C. Sec. 341 was held on ...
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MEMORANDUM OPINION This matter came on for consideration upon the objection of Debtor, MARY LOUISE CLARK, to the claim of Creditor, TRUMBULL SCHOOL EMPLOYEES CREDIT UNION, filed on February 10, 1986, in these Chapter 13 proceedings. A hearing was held on March 13, 1986, at which time counsel for Debtor and counsel for Creditor appeared. The parties have submitted the matter to the Court f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the Court on the Debtors’ Motion to Avoid Lien Impairing Exemptions filed on behalf of Charles Callaghan Lodek and Bertha Bona Lodek (“Debtors”) in this case under Chapter 7. Adelia Traub (“Creditor”), whose lien Debtors seek to avoid under 11 U.S.C. § 522(f), filed through her counsel an objection to Debtors’ Motion. ...
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MEMORANDUM OPINION FACTS AND PROCEDURAL BACKGROUND Coal-X Ltd. “76”, the debtor, filed a petition for voluntary relief under Chapter 11 *908 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Colorado on May 18, 1984. The debtor is a limited partnership whose general partner, Coal-X, Inc., a Utah corporation, is a wholly-owned subsidiary of ...
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60 B.R. 183 (1986) In the Matter of GEORGE HUNT, INC., Debtor. Bankruptcy No. 82-1969. United States Bankruptcy Court, M.D. Florida, Tampa Division. April 4, 1986. C. Kathryn Preston, Tampa, Fla., Nancy L. Cavey, St. Petersburg, Fla., for debtor. *184 Kenneth Stuart, Lakeland, Fla., Ronald Swartz, Tampa, Fla., for Edward B. Genevish. ORDER ON OBJECTION TO CLAIM OF EDWARD GENEVISH ALEXANDER L. PA...
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Findings of Fact and Conclusions of Law This matter comes before the court on a motion to dismiss the trustee in this case filed by Acadiana Bank. A hearing was held on January 6, 1986, and memoranda have been submitted on behalf of Acadiana Bank and the trustee, Charles N. Wooten. Upon consideration of all of the arguments and briefs of counsel, the following shall constitute the fin...
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MEMORANDUM AND DECISION Two motions have been brought before this Court which directly or indirectly relate to an approximately 50 acre parcel of land owned by the debtors. The first motion was heard on September 27, 1985. That motion was brought by George Yount and sought the release of $10,000 which he had placed in escrow for the purpose of purchasing the 50 ± acre parcel and for the dismissal ...
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MEMORANDUM DECISION AND ORDER The court here addresses two adversary proceedings commenced by Lawson Burich Associates (“Lawson” or “Debtor”) regarding Lawson’s position as the former receiver and operator (“Receiver”) of the Haym Salomon Home for the Aged (the “Home”). *683 Each adversary proceeding relates to aspects of the same transactions and agreements between Lawson an...
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ORDER DENYING DEBTOR’S APPLICATION FOR COURT APPROVAL OF REAFFIRMATION AGREEMENT This matter is before the court upon the application of the Debtor, Elizabeth Joan Reidenbach, for approval of a Reaffirmation Agreement pursuant to 11 U.S.C. § 524(c)(6). The court finds that the Debt- or’s application is inappropriate and that it should be denied because the mere fact that her attorney of record ...
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MEMORANDUM OPINION FACTS The debtors in each of the four cases before the Court borrowed cash from Aet-na Finance Company and signed security agreements pledging their household goods as collateral. Subsequently, the debtors filed under Chapter 13 of the Bankruptcy Code, and the Court duly confirmed the plans. The debtors have now filed motions under Section 522(f) of the Bankruptcy ...
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OPINION AND ORDER The debtors, by Arthur Eberlein, have motioned the court to avoid liens pursuant to 11 U.S.C. § 522(f)(2). Aetna Finance Company (AFC), by Kenneth J. Erler, objects to the motion. A hearing was held on this matter on March 27, 1986, and the issue has been submitted for determination by briefs. The debtors filed a petition for relief under Chapter 7 of the Bankruptcy Code on Dece...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of the trustee to sell certain purported assets of the estate pursuant to 11 U.S.C. § 363, to pay administrative expenses pursuant to 11 U.S.C. § 506(c), and for allowance of interim compensation and reimbursement of expenses pursuant to 11 U.S.C. § 330. Subsequent to the applications of the trustee, all of which were object...
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MEMORANDUM AND ORDER This matter came before the court on the motion of the defendant, Continental Illinois National Bank and Trust Co. (“Continental”), for summary judgment. The court, having considered the pleadings and memoranda filed herein, as well as the documents, affidavits and exhibits submitted therewith, does hereby grant defendant’s motion for summary judgment. THE FACTS ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SUM OF $20,000 PLUS INTEREST FROM THE DEFENDANT The plaintiff trustee in bankruptcy brings this action for the purpose of recovering what he contends to be a prohibited and unauthorized postpetition transfer pursuant to section 549(a) of the Bankruptcy Code. In his complaint, he alleges that: “On March 11,...
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ORDER Hutchinson National Bank and Trust Co. filed a Motion for Relief from Automatic Stay on November 21, 1985, the day set for debtors’ reaffirmation and discharge hearing. This Court is in accord with the authorities cited by the Bank. Even though the debtors may remain current on their car payments, if the contract is in default upon the filing of bankruptcy or discharge of the debtors’ per...
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AMENDED ORDER On January 3, 1986, an order was entered denying creditor Charles Mason’s motion to vacate a prior order of this Court, dated October 11,1985, wherein the trustee was permitted to reopen bidding on the debtor insurance agency’s book of accounts. On January 17, 1986, Jason Mon-zack, Esq., entered his appearance on behalf of the debtor, and promptly filed a motion requesting: That the...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of Thomas Welburn McLean, Jr. (“debtor”) for a determination that a debt owing to the Virginia Department of Social Services is dischargeable in bankruptcy. A pretrial conference was convened in this proceeding on December 4, 1985, and upon the representation of the parties that the facts are substantially un-controver...
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FINDINGS OF FACT, CONCLUSIONS BY THE COURT, AND ORDER ON MOTION FOR REHEARING The above-styled bankruptcy case is pending before this Court under title 11, chapter 11, United States Code, and no trustee has been appointed. On November 25, 1985, the bankruptcy judge entered findings, conclusions, and an order granting to Central Bank of the South (hereinafter “bank”) relief from the stay provided b...
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*236OPINION I This proceeding is an action by the standing Chapter 13 Trustee objecting to the allowance as a claim of a judgment rendered by the Municipal Court of Riverside County, California, on April 4,1982 for $7,520.22, plus costs and fees. 11 U.S.C. § 704(5).1 This Court has jurisdiction as a core proceeding. 28 U.S.C. § 157(b)(2)(B). Previously, the parties stipulated the judgment lien it...
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MEMORANDUM OF DECISION Plaintiff seeks an order that its district court judgment for $555,427.23 against Ira *175 Kay, the debtor, is not dischargeable. The judgment was predicated on the submission of knowingly false statements of hours worked by the employees of Uriarte CleanUp Service, Inc. to the Laborers Clean-Up Contract Administration Trust Fund. Defendants Kay, Roland and Frank Uriart...
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The instant matter is an Order to Show Cause and Complaint filed by the debtor, Elsinore Shore Associates, d/b/a The Atlantis Casino Hotel (debtor), against the New Jersey Division of Alcoholic Beverage Control (ABC) and its Director, John F. Vassallo, Jr. In this case, the debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code on November 14, 1985. At the time of the fi...
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OPINION The within matter presents questions concerning the dischargeability of certain debts arising from a matrimonial action wherein the debtor, Salvatore Tosti, was the plaintiff and the plaintiff herein, Frances Tosti, was defendant. A decree was entered on January 24, 1980 adjudicating the rights of the parties. In pertinent portion the decree rendered in the Superior Court of New J...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of Huntington National Bank (Movant) to dismiss a Proof of Claim filed in the above-styled proceedings by Arny Kleinman (Claimant). Said proceedings were commenced upon the filing of a petition under Chapter 11 by the Ace Finance Company (Debtor) in October of 1983. Factual Findings Prior to' the...
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ORDER DENYING MOTION FOR ENFORCEMENT OF ATTORNEYS’ LIENS Heard on the trustee’s objection to Adler Pollock & Sheehan’s motion for enforcement, without court review, of two attorneys’ liens, in the amounts of $6,565.30 and $17,267.15, respectively. After considering the arguments of counsel, we agree with and adopt the reasoning advanced in the Trustee’s Memorandum of Law in Oppositio...
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ORDER SUSTAINING DEBTOR’S OBJECTION TO THE CHAPTER 13 TRUSTEE’S STATUTORY FEE Heard on the debtor’s objection to the allowance to the trustee of the full statutory fee computed pursuant to 28 U.S.C. § 586(e). This dispute raises the identical issue recently treated at length by this Court in In re Sousa, 46 B.R. 343 (Bankr.D.R.I.1985) — whether the Court may review the statutory compensatio...
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DECISION DENYING DEBTOR’S MOTION TO WITHDRAW HIS CHAPTER 13 PETITION, AND GRANTING TRUSTEE’S MOTION TO CONVERT Heard on February 11, 1986, on the debt- or’s motion to withdraw his Chapter 13 petition, and on the trustee’s motion to convert the case to Chapter 7. The debtor filed a Chapter 13 petition on December 10,1985, the same date on which his property located at 60-62 Blackstone...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Fleet Bros., Inc. (“Fleet Bros.”) to certain exemptions claimed by the debtors in the above-styled case, Joseph H. and Linda D. Newsome (“Newsomes”). This matter was heard at a hearing convened on February 13, 1985, along with a motion for relief from stay filed by Fleet Bros, in order to recover certain of the items claimed...
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OPINION AND ORDER First American Agricultural Loans of Colfax, Inc. (FAAL), by David Erspamer, has brought this motion seeking dismissal of these bankruptcy proceedings. The debtors appear pro se and contest the motion. A hearing was held on this matter on January 27, 1986. The parties were permitted to brief the issues. The debtors then requested to be permitted oral argument in lieu of filing...
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These cases came on for hearing on March 17, 1986, on motions by the United States of America on behalf of the Department of Housing and Urban Development (HUD) for dismissal, and on motions by the Debtors for valuation of HUD’s secured claims. Mary Carlson appeared on behalf of HUD, and James Baillie appeared on behalf of the Debtors. Based on the motions, arguments and briefs of counsel, and upo...
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ORDER The above-entitled matter came on for trial before the undersigned on January 27 and 28, 1986. The Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157 and the Order of Reference of the District Court dated July 27, 1984. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). This is an action brought to determine the dischargeability of a debt o...
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*170 MEMORANDUM OPINION These two adversary proceedings were combined for trial and evidence was heard on February 13, 1986. Case No. A85-195 is a complaint by the Bank objecting to the discharge of the debtor under Bankruptcy Code § 727. Case A85-112 is a complaint by the Bank against the debtor and his wife, a non-debtor, for a determination of the extent and validity of a secu...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction — On March 28, 1984, the debtor commenced the above-styled case with the filing of a voluntary petition under chapter 11 of title 11, United States Code, and the case was converted to a case under chapter 7 on January 9, 1985. The above-styled adversary proceeding involves an objection to the debtor’s discharge under 11 U.S.C. § 727(a)(2) and (5...
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ORDERS ON MOTIONS CONCERNING NUNC PRO TUNC EMPLOYMENT AND COMPENSATION OF PROFESSIONALS AND RELATED PLEADINGS THE MATTERS before the Court in this Chapter 11 case are the Motion To Revoke *659Nunc Pro Tunc Order Authorizing Employment Of Real Estate Brokers And Requiring Return Of Monies Paid To Professional Persons, filed by the Debtor, and the objections thereto; and the Motion For Entry Of An O...
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MEMORANDUM DECISION On December 27, 1983, Wengert Transportation, Inc., d/b/a City Delivery (“the debtor”) filed an application with the Iowa Transportation Regulation Authority (“the TRA”) for a certificate of public convenience and necessity pursuant to IOWA CODE § 325.12 (1983) and was issued a temporary certificate. Protests to the application were subsequently received by the TRA fro...
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ORDER This matter was heard on March 25, 1986, on several motions involving the Debtor and Production Credit Association of Worthington (PCA). Ian Ball appeared on behalf of the Debtor, and Gary Koch appeared on behalf of PCA. Based on the motions, testimony and exhibits heard and received at hearing, and upon all of the records and files herein, the Court being fully advised in the matter now ...
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MEMORANDUM OPINION This case presents an appeal from the United States Bankruptcy Court. The appellant, Path-Science Laboratories, Inc., appeals the bankruptcy court’s order upholding the exercise of that court’s jurisdiction over a proceeding filed on behalf of Greene County Hospital. This Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158. The Court is mindful o...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DIRECTING CLERK OF BANKRUPT- ' CY COURT TO PAY $2,500 TO PETITIONER FROM FUNDS EARLIER DEPOSITED IN REGISTRY OF COURT, PLUS ANY INTEREST ACTUALLY EARNED THEREON, LESS $467.50 EXAMINER’S FEE FOR EDWARD L. CAMPBELL, ESQUIRE The matter of the disposition of $2,500 which the law firm of Feldhausen, *26 Burke, and Petty, P.C., paid into the c...
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MEMORANDUM OPINION RE REQUEST FOR RELIEF FROM STAY Final hearing was held on February 11, 1986, on the Motion for Relief from the Automatic Stay filed by the Federal Land Bank of Omaha. The debtor operates a feedlot and row crop operation on 320 acres of land in Harlan County, Nebraska. Approximately half of the land is in crop and half of the land is used for the feedlot operation, with impr...
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MEMORANDUM OPINION This matter was tried before the court on November 6, 1985, on the State of New Hampshire’s Complaint to Determine Dis-chargeability of Certain Debts Under Sec *210 tion 523(a)(6) and (7) and the debtor’s Answer thereto. The State submitted a memorandum of law at trial and subsequently both parties submitted additional memoran-da. Two issues are raised...
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MEMORANDUM DECISION AND ORDER DISAPPROVING DEBTOR’S DISCLOSURE STATEMENT On November 30, 1984, Weiss-Wolf, Inc. (“Debtor”), the debtor and debtor-in-possession in this Chapter 11 case, filed its Amended Disclosure Statement. The filing of the Amended Disclosure Statement followed the filing on November 14, 1984 of an objection to the original disclosure statement by the Unsecured Creditors’ Com...
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This matter came to be heard on the involuntary petition for bankruptcy by Lei-by and Welsh, P.C. against Elisa Ferri. The court finds that Ms. Ferri has shown that she has defenses and counterclaims to petitioner’s claim which could be substantiated. Accordingly petitioner has failed to establish that its claim is undisputed, and the case is hereby dismissed. DISCUSSION 11 U.S.C. § 3...
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MEMORANDUM ORDER AND DECISION This case is presently before the Court upon the objection of the trustee, Fred W. Woodson, (Trustee) to the debtor’s claim of exempt property. The Trustee objects to the claim of exemption under Schedule B-4 to the following personal property: *202 Micro computer, TRS 80 Model 3 and printer Casio watch Gold chain and pendant ($10 gold...
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MEMORANDUM DECISION On August 23, 1985, the debtor, George Woods, filed a petition for relief under chapter 7 of the Code. On October 28, 1985, Heritage Bank Beloit, (“the bank”) filed an objection to the debtor’s claim of a statutory exemption for his individual retirement account (“IRA”) under WIS. STAT. §§ 701.06 and 815.18(31). Approximately $21,242.65 is held in the account. The bulk of th...
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MEMORANDUM DECISION On July 11, 1985, the debtor, Robert E. Godfrey, filed a chapter 7 petition in bankruptcy and Michael E. Kepler was appointed trustee. On November 12, 1985, the trustee filed this adversary proceeding seeking to avoid the security interest of Production Credit Association of Dodge-ville (“PCA”) in the debtor’s farm machinery. The basis of the trustee’s claim is that the financi...
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MEMORANDUM DECISION This objection to a claim has been considered on briefs at the request of the parties. The following facts appear to be uncontested. On January 1, 1983, the debtor, Dahlman Truck Lines, Inc. (“Dahlman”) and the claimant, Kowalski Trucking, Inc. (“Kowal-ski”) signed an agreement whereby Kowal-ski was to provide trucking service to Dahl-man. On September 26, 1983, D...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The motion of defendant Excess Insurance Company, Ltd. for an order to stay the above entitled adversary proceeding and to compel arbitration came on for hearing by the court on January 23,1986. Morton Hoffman and David L. Buchbinder appeared on behalf of plaintiff Mor-Ben Insurance Markets Corporation and John N. Frye and Karen Ventrell appeared on...
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MEMORANDUM DECISION This chapter 11 trustee seeks $3,787,000 from a Mobile bank as a fraudulent transfer under 11 U.S.C. § 548(a) made to it as the “initial transferee” or an “immediate or mediate transferee” within the scope of § 550(a). It is conceded that the bank derived no benefit from the transfer and exhibited no bad faith. The bank has answered and the matter was tried on March 13...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of the intervenor Borg-Warner Acceptance Corporation (“Borg-Warner”) for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) as incorporated by Bankruptcy Rule 7012(c). Darrell Goldberg (“Goldberg”) filed an adversary complaint against Arthur Ehrlich (“Ehrlich”), the debtor in a Chapter 11 proc...
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CERTIFICATION OF THE POSSIBLE OCCURRENCE OF AN ACT OF CONTEMPT I. Certification of Act The Debtor filed a Rule to Show Cause why St. Helena Acceptance Corporation (the “Creditor”) should not be held in contempt of court. The Rule alleges that subsequent to the Debtors’ discharge, the Creditor persuaded the Debtor to execute a promissory note that obligated the Debtor to repay a disch...
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DECISION ON MOTION FOR AN ORDER TO ASSUME LEASE AND MOTION FOR AN ORDER FOR RELIEF FROM AUTOMATIC STAY. R.E. Neil, Inc., the debtor in this Chapter 11 case, has moved to assume its present lease in a shopping center in accordance with 11 U.S.C. § 365(b) and Bankruptcy Rule 6006(a). In a second motion the landlord, Corporate Park Investors, has moved for an order directing the debtor to co...
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MEMORANDUM DECISION Introduction This matter is before the Court on a complaint to determine dischargeability of a debt filed on behalf of Mary A. Barthen Neely by Attorney Homer Kandaras on December 23, 1985. The complaint substantively alleges that: 1) Debtor’s failure to pay to plaintiff/ex-spouse forty percent of his military pension as required by a Dissolution Judgment prov...
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MEMORANDUM At issue is whether Tenn.Code Ann. § 26-2-303 (1980), limiting the state homestead exemption for leaseholds to leasehold estates of more than two years, constitutes a denial of the debtors’ right to equal protection of the law under Amendment XIV of the Constitution of the United States.1 I The debtors, husband and wife, filed a joint voluntary chapter 7 case on July 2, *1671985. In the...
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ORDER ON STIPULATION ON BANKS MOTION FOR ADEQUATE PROTECTION AND OBJECTION TO STIPULATION THE MATTER presented for this Court’s approval in the above-captioned Chapter 11 case is a stipulation between the Debtor-In-Possession and Florida National Bank, *165 N.A. providing for adequate protection to the Bank to assure security for four of the Debtor-In-Possession’s notes which...
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MEMORANDUM OPINION AS TO FIFTH AMENDMENT ISSUES AND ORDER THEREON (As Corrected and Reissued) Debtor, Thomas J. Connelly (“Connelly”), filed his petition herein under Chapter 7 of the Bankruptcy Code. He then invoked the Fifth Amendment to the United States Constitution and refused on that ground to testify or otherwise disclose any information at all pertaining to his case. He respo...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the Complaint Objecting to Dischargeability filed by Plaintiff, HARRIS “CHARGE IT” SYSTEMS, represented by THE LAW OFFICES OF LAWRENCE FRIEDMAN, against Debtor, BRUCE E. DELOIAN, represented by LEONARD E. GARGAS, and the Court, having considered the record in this case and the pleadings on file, and having afforded the par...
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ORDER OVERRULING OBJECTION TO EXEMPTION The matter before the Court is Trustee’s Objection to Debtors’ claimed exemptions in the cash surrender value of certain un-matured life insurance policies. The matter is submitted to the Court on the basis of stipulated facts and memoranda of law filed by the parties. Having reviewed the stipulation and the memoranda, and being fully advised, the Court make...
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*180 DECISION AND ORDER FACTS These cases were commenced on July 29, 1982 with the filing of separate involuntary petitions in bankruptcy against Chaim Ein-horn (“Einhorn”), individually and Vacation Planning Center, Inc. (“Vacation”), (collectively, the “debtors”), a travel agency of which Einhorn was president and sole stockholder. The petitions were filed by three airlines, Pan American ...
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OPINION As the vortex of the dispute in this case, the issue is whether payments to a creditor under a chapter 13 plan which is funded by postpetition wages, may be recovered by the debtor after conversion of the case to chapter 7. For the reasons stated herein, we conclude that the payments may be recovered. The facts of this case are as follows:1 The debtor borrowed funds from Bankers Mortgage C...
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OPINION The issue in this case is whether the debtor should be denied a discharge under 11 U.S.C. § 727 of the Bankruptcy Code (“the Code”). For the reasons stated herein, we hold that the discharge should be denied. The facts of this case are as follows: 1 Charles T. Bobroff (“the debtor”) wholly-owned two corporations, Zachary Fae, Inc., a retail shoe store, and Fae Ente...
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OPINION The multiplicity of issues brought forth by a debtor’s objection to a creditor’s proof of claim centers around the debtor’s contention that the claim should be reduced because the creditor (1) violated the Federal Truth-In-Lending Act, (“the TILA”), 15 U.S.C. 1601 (1976) et seq., (2) expended costs and attorney’s fees in an improperly brought foreclosure proceeding and (3) exacted attor...
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MEMORANDUM OPINION AND ORDER REGARDING DEBTOR’S CLAIM OF EXEMPTIONS On March 5, 1986, the Court held an evidentiary hearing on the objections filed by InterFirst Bank Fort Worth, N.A. and the First National Bank and Trust of Oklahoma City to the Debtor’s schedules of exempt property. The objections were filed pursuant to Bankruptcy Rule 4003(b) and constituted a “contested matter” for purposes ...
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This matter comes before the court on the motion of Manhattan Savings Bank (“Manhattan”) for an order imposing sanctions on the debtor, French Gardens, Ltd. (“French Gardens”), its attorney, Craig Cowgill, and J.M. Jayson & Company, Inc. (“Jayson”). Movant urges that French Gardens, Jayson, and Mr. Cowgill filed multiple Chapter 11 cases in bad faith causing Manhattan to have to employ counsel ...
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Two Oil, Incorporated (“Two Oil”) is a Chapter 11 debtor in possession which, under 11 U.S.C. § 547, seeks to set aside an alleged preferential transfer made to Tam-pimex Oil International, Ltd. (“Tampi-mex”). The facts of the case are as follows: Two Oil arranged with its only bank, Houston City Bank, now BancTexas, (“the Bank”) for a line of credit which was secured by all the assets and invento...
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DECISION AND ORDER ON MOTION FOR A DETERMINATION THAT CERTAIN DEBTS BE FOUND NON-DISCHARGEABLE, OR IN THE ALTERNATIVE, A DENIAL OF THE DEBTOR’S DISCHARGE Before this court is the complaint of Champlin Petroleum Company (“Champlain”), Diamond Shamrock Refining and Marketing Company (“Diamond Shamrock”), and Triangle Refineries, Inc. (“Triangle”), against James C. Baughman, Jr., the defendant (“d...
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MEMORANDUM OPINION AND ORDER The issue for determination is whether the injunctive provisions of 11 U.S.C. § 524 prohibit the Movant from continuing her pending state court action against the Debtor, who has received a discharge, in order to recover under the uninsured motorist clause of the Movant’s insurance policy. This Memorandum Opinion is in accordance with Rule 7052. ...
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*190 MEMORANDUM OPINION On January 22, 1986, the United States District Court for the Eastern District of Arkansas, Jonesboro Division, reversed this Court’s order entered on 7th day of January 1986, and remanded the order for additional findings and adjudication consistent with the District Court’s opinion. This memorandum is issued pursuant to those instructions. This Cour...
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ORDER On June 25, 1985, Alvie Lee Mothershed and Lavonda Jean Mothershed filed a voluntary petition for relief under the provisions of Chapter 13. The plan provides that it will pay two secured claims of International Harvester Credit Corporation (International Harvester) the value of the collateral or the amount of the debt, whichever is less over the life of the plan. The narrative statement ...
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MEMORANDUM DECISION Plaintiffs and debtors Charles and Sharon Heincy have filed a complaint to enjoin the Superior Court, County of San Diego, State of California, from enforcing an order for restitution entered in criminal case No. CR70040 in November 1984. The debtors have also filed an objection to the Chapter 13 proof of claim filed by Joseph and Trudi Boylan. The issue raised by...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for consideration upon the Motion to Dismiss the above-captioned Chapter 11 case filed by Tri-County Development Company. Tri-County seeks dismissal on grounds which can be summarized as the Debtor’s inability to effectuate a Plan and unreasonable delay by the Debt- or that is prejudicial to creditors. The Court reviewed the record in this case and fin...
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ORDER ON MOTION OF LEE COUNTY FOR STAY RELIEF This matter was heard by the Court on February 25 and March 11, 1986, on the *637motion of Lee County, Florida for relief from the automatic stay. The facts are not in dispute, but the parties differ in their interpretation of a controlling Florida statute. The Debtor was an air carrier operating scheduled commuter services in Florida pri- or to the fi...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the Motion For Turnover Order filed by the Debtor, VELLER McCARY, represented by MICHAEL J. VENTRELLE, and upon the responses thereto filed by STAUFFER CHEMICAL CO. [Stauffer], represented by VEDDER, PRICE, KAUFMAN & KAMMHOLZ, and the Court, having reviewed the record and the pleadings on file, and having afforded the part...
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DECISION The debtors in this proceeding and the debtors in In re: Robert B. Worrell and Joanne M. Worrell, 59 B.R. 172, both filed Motions for Apportionment. As the legal issues are identical, and the facts are similar, the debtors and the creditor, the United States of America through the Farmers Home Administration, agreed to consolidate the hearings on the separate motions. The facts in ...
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DECISION The debtors in this proceeding and the debtors in In re: Wayne R. Lindsey and Margaret A. Lindsey, 59 B.R. 168 (Bankr.C.D.Ill.1986), both filed Motions for Apportionment. As the legal issues are identical, and the facts are similar, the debtors and the creditor, the United States of America through the Farmers Home Administration, agreed to consolidate the hearings on the separate mo...
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DECISION AND ORDER This matter was heard by the order to show cause of Envireco International Motors, Inc. (“Envireco”) to enjoin the defendants from terminating Envireco’s sublease. At least one of the defendants made a motion to dismiss for both jurisdictional and substantive reasons. Envireco was a subtenant of the debtor, Elmhurst Transmission Corp. (“Elmhurst”). On February 14, 1985, thi...
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DECISION AND ORDER RE SALE OF REAL ESTATE At Cincinnati, in said District, on the 26th day of March, 1986. Debtor in this Chapter 11 case had been a dealer in earth moving equipment. In connection with that business, it was the owner of a substantial tract of real estate. Debtor’s building occupied some 10 acres of a total of approximately 32 acres. Debt- or received an offer to purchase a 6....
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MEMORANDUM OPINION This adversary proceeding was commenced by the trustee and Bowers Distillery, Inc., a creditor, to determine whether various interests of the debtor-defendant, Aileen R. Kragness, arising from two Hawaii testamentary trusts are property of the bankruptcy estate, and if so, to compel the turnover of those funds and assets to the trustee, for the benefit of the estate. The fact...
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MEMORANDUM OPINION AND ORDER Defendant Mellon Bank has filed a Motion for Judgment on the Pleadings raising the statute of limitations contained in 11 U.S.C. § 546(a)(1). Defendant Charles Glen Dugdale filed a similar Motion to Dismiss raising the two-year statute. The statute 11 U.S.C. § 546 Limitations on avoiding powers recites: (a) An action or proceeding under section 544, 545, 547, 54...
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MEMORANDUM ON TRUSTEE’S MOTION FOR TAXATION OF COSTS AND EXPENSES D. Broward Craig, trustee of the debtor’s estate, asks the court to tax costs and expenses, including attorney fees, incurred in obtaining, and defending on appeal, an order of contempt against Charles S. Liber-is, P.A., Charles S. Liberis, and David L. Fleming (respondents). Respondents contend they should not be taxed wit...
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Plaintiff, in his capacity as the Trustee of the Liquidation Trust established pursuant to the Modified Plan of Reorganization of Southern Industrial Banking Corporation, has sued defendants to recover alleged fraudulent conveyances under 11 U.S.C.A. § 548(a) (West 1979). Defendants East Tennessee Equity, Ltd. and Theodore A. Erck have moved to dismiss this action, asserting (1) that plain...
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On February 28, 1985, debtor filed a voluntary petition seeking relief under Chapter 11 of the Bankruptcy Code (“Code”). Soon after the filing of his petition, debtor requested and was granted an extension of time to file his schedules and statements of affairs. They were filed on April 16, 1985, after the first meeting of the creditors. By order dated March 19, 1985, the first meeting of credito...
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MEMORANDUM AND ORDER DENYING DEBTOR’S MOTION FOR NEW TRIAL On the 10th day of March, 1986, Stephen M. Yamin, Involuntary Debtor, herein, filed his motion for new trial in the above-styled and numbered involuntary Chapter 7 proceeding. Debtor’s application set forth in pertinent part the following: “1. This Involuntary Chapter 7 proceeding was filed herein in July, 1984, by three (3) petitioning cr...
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OPINION On consideration of the complaint filed by Medical Center Bank, hereinafter referred to as Plaintiff, seeking to deny the discharge of the Debtor, as well as, alternative relief; answer filed by Sheila Luftig Keller (Robin), hereinafter referred to as Debtor; all parties being represented by their respective attorneys of record; on the presentation of proof, oral argument, and memoranda o...
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MEMORANDUM AND ORDER FOLLOWING HEARING ON STATUS OF PROPOSED FILING OF MOTION TO COMPROMISE CONTROVERSY Came before the Court on March 24, 1986, the proponents of an undisclosed but nonetheless proposed compromise of controversy. Such compromises are necessarily pursuant to Bankruptcy Rule 9019 and Local Bankruptcy Rule 9007. The proponents were the Debtor who has sought the protection of the Bank...
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OPINION The trustee contends that the debtor’s beneficial interests in two employee benefit plans are property of the estate and not properly claimed by the debtor as exempt. He seeks turnover of the property by the debtor’s employer, Pacific Northwest Bell (“PNB”), pursuant to Section 542(a). PNB contends that the funds are not property of the estate while the debtor contends that even i...
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*928 MEMORANDUM OPINION ..AND ORDER Percell and Veronica Kelley filed a Chapter 13 case on January 31, 1985. They have proposed two plans. Each plan was objected to and rejected by Walter and Agnes Tomczyk who also filed a motion to dismiss the case. The objection to the last proposed plan and the motion to dismiss were joined for hearing. The Kelleys are school teachers who became indebted...
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MEMORANDUM OPINION AND ORDER On March 10, 1986, Rufus Bartlett Coody, Debtor, filed a petition under Chapter 11 of the Bankruptcy Code. Before the Court is the “Motion to Use Cash Collateral” that was filed by Debtor on March 11, 1986. The motion came on for hearing on March 18, 1986, and the Court, having considered the evidence presented and the arguments of counsel, now publishes its o...
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MEMORANDUM This matter comes before the Court on the Objection of The Commonwealth of Massachusetts, Department of Revenue (“the Commonwealth”) to the trustee’s proposed final distribution of estate funds to The United States Small Business Administration (“SBA”) on account of its claim arising out of a 1970 loan secured by an assignment of the debtor’s liquor license. The Commonwealth as...
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OPINION Came on for consideration the motion filed by the Bank of Ruleville seeking relief from the automatic stay, etc.; response thereto filed by the Debtors, as well as, their motion to determine the secured status of the Bank of Ruleville's claim; all parties being represented before the Court by their respective attorneys of record; on the presentation of proof, oral argument, and me...
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DECISION AND ORDER The debtor, Joseph Balfour Schwartz (the “debtor”), filed a voluntary bankruptcy petition under Chapter 7 of the Bankruptcy Code (“the Code”), 11 U.S.C. § 701 et seq. (1984) on October 5, 1984. He now moves for the dismissal of his petition without prejudice. The two largest creditors of the estate oppose the motion. I. The two major creditors are l...
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DECISION AND ORDER This matter came to be heard on the complaint of the debtor that her student loans are dischargeable in bankruptcy because they impose undue hardship upon her family. Generally, student loans are dischargea-ble five years after they mature, or sooner if the debtor can prove “undue hardship” under 11 U.S.C. § 523(a)(8). In this case, the debtor conceded that her loans have not ye...
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DECISION AND ORDER This matter came to be heard on the motion of Associates Commercial Corporation (“Associates”) to dismiss the debtors’ petition, or in the alternative, to deny confirmation of the debtors’ proposed plan. The court finds that Associates has failed to show cause to dismiss the case, or to deny confirmation, and hereby denies the motion. FACTS On November 15, 198...
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MEMORANDUM OPINION AND ORDER ” This cause comes before the Court upon the Trustee’s Objection to the Debtors’ Claim of Exemption. The parties have agreed that the issues addressed by this *140Objection are primarily issues of law, and that the Court may render a decision on this Objection based upon the written arguments of counsel. The parties have filed such arguments and have had the opportunit...
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MEMORANDUM OPINION AND ORDER This cause comes before this Court upon the Motions For Summary Judgment filed by both the Plaintiff and the Defendant in the above entitled adversary action. The parties have submitted their written arguments regarding these Motions and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion To Dismiss filed by the Defendant in the above entitled adversary action. The parties have filed their arguments respecting the merits of the Motion and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the entire record in this case. Base...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon, the Complaint To Determine Dischargeability filed by the Plaintiff in the above entitled adversary action. The parties have agreed that the issues raised by this Complaint are primarily issues of law, and that the Court may render a decision in this case based solely upon the written arguments of counsel. The parties have subm...
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MEMORANDUM AND ORDER In this lengthy liquidation, begun as an involuntary proceeding in the late part of 1976 and followed by a consent to adjudication in February 1977, we have for disposition an “Application by the Trustee to Withdraw his Earlier Application to Enter into a Lease with Loree Associates and Alternatively Enter into a Lease Arrangement with North American Mining, Inc.” It ...
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MEMORANDUM OPINION AND ORDER re: OBJECTION OF REELFOOT BANK TO DEBTOR’S PLAN This cause is before the Court on the objection of Reelfoot Bank (Bank) to the Debtors’ Chapter 11 plan which proposes to pay debts owed the Bank at a contractual interest rate of seven percent (7%) per an-num. At issue is whether this Court may modify the prepetition contractual rate of interest. The follow...
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MEMORANDUM OF DECISION ON APPLICATION OF ZELDES, NEEDLE AND COOPER, P.C., COUNSEL TO THE OFFICIAL CREDITORS’ COMMITTEE, FOR AN UPWARD ADJUSTMENT OF COMPENSATION I. This ruling deals with the standards governing an attorney’s request in a bankruptcy case for a fifteen percent upward adjustment of compensation initially calculated on a reasonable-hourly-rate basis. On January 17, 1986,...
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OPINION This matter is before the Court on the Trustee’s Complaint to Avoid Transfer of Property Under Section 549. The parties have stipulated to the following facts: I. Yirgil D. Washburn was the father of Barbara J. Watson. 2. Virgil D. Washburn died on February 22, 1985. 3. Virgil D. Washburn’s Will was filed with the Circuit Clerk for the Fifth Judicial Circuit, P...
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OPINION AND ORDER This matter came before this court on motion of defendant Enstrom Helicopter Corporation [Enstrom] denominated “Motion to Strike Damages Claims, Motion for Summary Judgment on All Prescribed Tort Claims and Motion to Dismiss for Failure to State a Claim on Which Relief can Be Granted”. All three matters shall be treated as motions for partial summary judgment under Rules...
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MEMORANDUM OPINION REGARDING COMPLAINT TO DETERMINE VALIDITY OF LIENS AND FOR TURNOVER OF FUNDS This matter is before the Court after trial for determination of whether the Farmers Home Administration (FmHA or defendant herein) retains a perfected security interest in proceeds from the debtors’ 1984 potato crop. The following constitutes the Court’s findings of fact and conclusions of law...
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MEMORANDUM OPINION This adversary proceeding has been brought by Doris Villm against C.G. Wallace, III, Trustee of the Harvey Mahloch estate, requesting a determination that a real estate contract entered into between Doris Villm and her now deceased husband, Fred Villm, as sellers and Harvey Mahloch as buyer continued in force and effect as a valid lien against the real estate and that the intere...
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DECISION GRANTING PLAINTIFF’S COMPLAINT TO RECOVER PREFERENTIAL TRANSFER This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (F), in which the plaintiff-debtor, Foreman Indus *147 tries, Inc., seeks to recover as a preference money paid to the defendant, Broadway Sand ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Request For Determination Of Core Proceeding filed by the Plaintiff in the above entitled adversary action, and the Order of Reference entered by the United States District Court for the Northern District of Ohio, Western Division. Pursuant to the Order of Reference, this Court is to submit to the District Court proposed fi...
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The debtors’ landlord, appellant Parkway Plaza Investors (“Parkway”), has been sued in state court by the debtors and their Chapter 7 trustee for damages arising out of the lease. Parkway appeals from an order of the bankruptcy court denying Parkway’s motion to vacate an order authorizing and approving the Chapter 7 trustee’s partial assignment of the estates’ cause of action to the debtors and...
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59 B.R. 615 (1986) In re Donald K. POUNCEY, Debtor. Bankruptcy No. 85-01830. United States Bankruptcy Court, M.D. Alabama, N.D. March 21, 1986. *616 Tom McGregor, Trustee, Webb, Crumpton, McGregor, Schmaeling & Wilson, Montgomery, Ala., for movant. C. Winston Sheehan, Jr., Ball, Ball, Duke & Matthews, P.A., Montgomery, Ala., for trustee. Frank A. Hickman, Hartley & Hickman, Greenville...
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MEMORANDUM OPINION AND ORDER This cause coming on to be heard upon the Petition For Change Of Venue filed by *627 the FEDERAL DEPOSIT INSURANCE CORPORATION [FDIC], represented by DeHAAN & RICHTER, P.C., and said Petition having been opposed by ELEVEN OAK TOWER LIMITED PARTNERSHIP, Debtor, represented by ROBBINS, RUBINSTEIN, SALOMON & GREENBLATT, LTD., and by severa...
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OPINION This matter comes before the court on motion of the United States on behalf of the Maritime Administration of the Department of Transportation [MARAD]. MAR-AD seeks a determination that it has a security interest in the accounts receivable generated by several of the debtor’s vessels. MARAD bases its claim on a preferred fleet mortgage which it holds on those vessels. The parties ...
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MEMORANDUM DECISION The critical issue presented in this proceeding involves the validity of a mortgage on the debtors’ real estate in favor of a law firm. The mortgage was executed immediately prior to the filing of a chapter 11 case for the purpose of securing the payment of fees and disbursements incurred during the case. Another issue involvés the allowance of fees to the law firm. Th...
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MEMORANDUM OF DECISION (Motion for Turnover) Thomas L. Lackey, a Chapter 7 trustee, seeks an order directing the debtors, Richard W. Lepper and Carolyn Lepper, to turn over certain property which the trustee alleges belongs to the Chapter 7 estate. At issue are accounts receivable derived from services performed by Mr. Lepper after the filing of the Chapter 13 petition on November 13...
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64 B.R. 843 (1986) In re Joseph Michael WHITE d/b/a Kalthoff Heating & Cooling, and Evaline White, Debtors. John P. NEWTON, Jr., Trustee in Bankruptcy, Plaintiff, v. ANDREWS DISTRIBUTING COMPANY, Defendant. Bankruptcy No. 3-85-0036, Adv. No. 3-85-1118. United States Bankruptcy Court, E.D. Tennessee. March 21, 1986. *844 *845 John P. Newton, Jr. of Shanks & Blackstock, Knoxville, Tenn., fo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction— The debtors commenced the above-styled case under title 11, chapter 11, United States Code, by the filing of a voluntary petition on November 1, 1984, and the case continues to be pending under chapter 11, with the debtors acting as debtors in possession. SouthTrust Bank of Sand Mountain (hereinafter referred to as the bank) commenced the ...
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MEMORANDUM DECISION The plaintiff/judgment creditor seeks exception from discharge under 11 U.S.C. § 523(a)(6) for that part of her state court judgment against the debtor which represents punitive damages, $50,000. The debt- or has answered and the matter was tried on March 6. The facts are in sharp conflict. Resolving the conflicting evidence, I find that the plaintiff first consulted the debtor...
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ORDER The debtor in possession, Peach State Distributing Company (“Peach State”), filed a motion to alter or amend the Court’s Order entered on October 16, 1985 directing Peach State to make adequate protection payments to the Small Business Administration (“SBA”). The Court held á hearing on this motion on December 5, 1985, at which time the matter was taken under advisement. In the Order en...
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MEMORANDUM OPINION RE MOTION FOR RELIEF FROM AUTOMATIC STAY This matter comes before the Court on a motion for relief from the automatic stay filed by the Omaha National Bank, Trustee. Hearing was held on November 27, 1985, with evidence received by stipulation, facts stipulated to and arguments made. The parties requested leave to file post-trial briefs. The last brief was received on Fe...
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OPINION In this matter the debtor, Patricia Smith, seeks confirmation of her Chapter 13 plan. She proposes to cure the default on the first mortgage on her principal residence by the payment of the sum of $14,000 as the secured default amount and the allowance of additional claimed arrears, including attorneys fees and costs in the amount of $10,000 as an allowed unsecured claim. That cla...
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OPINION and ORDER This matter deals with an order to show cause why an interim trustee should not be appointed. Upon reviewing the proceeding, the application is dismissed without prejudice. The ratio decidendi herein is straightforward. The moving parties filed this involuntary petition pursuant to 11 U.S.C. § 303[b][2], which holds that a petition may be filed against the debtor where there are ...
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DECISION ON MOTION TO DISMISS COMPLAINT The defendants, Paul Aronson and English Sportswear, Inc., have moved to dismiss the complaint filed by the Chapter 11 trustee for the estate of Stephen A. Mish-kin (“the debtor”), or in the alternative, for a protective order preventing the trustee from deposing the defendants and requiring them to produce documents demanded by the trustee. The tru...
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FINDING AS TO CLAIM ALLOWANCE On January 16, 1986 a hearing was held based upon the motion filed by the United States of America for an order allowing an administrative expense claim filed by the Internal Revenue Service against the debtors on August 23, 1983. All parties were represented at the hearing and the court, after hearing the testimony and considering the evidence, makes the followi...
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ORDER DENYING MOTION TO DISMISS Wesley R. McKinney has filed a “Motion ... to Dismiss Chapter 11 Proceedings of Republic Trust & Savings Company for Lack of Subject Matter Jurisdiction” and a brief and affidavit in support thereof. Jack D. Jones, Trustee of the Chapter 11 estate of Republic Trust & Savings Company, has filed an opposing “Response” and brief, which refer to a “Trustee’s Re...
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FINDINGS, MEMORANDUM OPINION, AND FINAL ORDER This matter is before us on the motion of BWAC, a purchase money inventory financier, for relief from the automatic stay provision of 11 U.S.C. Section 362 in connection with various items identified as the debtor’s inventory holdings, and for relief to collect any cash or non-cash proceeds, chattel paper, instruments, documents, accounts, gen...
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MEMORANDUM OPINION The debtor filed the complaint in this action originally in the Circuit Court of Pulaski County, Arkansas. A demand for a jury trial was made in the original complaint by the plaintiff. The defendant, Union National Bank of Little Rock (Union), filed a petition to remove the case to the Bankruptcy Court. The Bankruptcy Court referred the matter to District Court where t...
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OPINION The plaintiffs/debtors, Wayne Rodney Lindsey and Margaret A. Lindsey, filed a Complaint to Determine Secured Status pursuant to the provisions of Section 506(d) of the Bankruptcy Code against defendants/secured creditors, the Federal Land Bank of St. Louis and the United States of America, acting for the Farmer’s Home Administration. The defendants filed an answer and affirmative ...
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59 B.R. 115 (1986) In re CEMETERY DEVELOPMENT CORPORATION (EIN XX-XXXXXXX), Debtor. Sam GALLO, Chapter 11 Trustee, Plaintiff, v. Edwin J. HERPICH, Defendant. In re AARONICS EQUIPMENT RENTALS AND SALES, INC. a/k/a Aaronics Welding Equipment Rentals (EIN XX-XXXXXXX), Debtor. AARONICS EQUIPMENT RENTALS AND SALES, INC. a/k/a Aaronics Welding Equipment Rentals, Plaintiff, v. Isaac HAYNES d/b/a Isaac H...
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ORDER RE MOTION FOR RELIEF FROM STAY The Crete State Bank filed a Motion for Relief from Stay on February 10, 1986. Preliminary hearing was held on March 6, 1986, and final evidentiary hearing was held on March 18, 1986. Appearing on behalf of the Crete State Bank was Matthew Hanson of Steinacher, Vosoba & Hanson of Crete, Nebraska. Appearing on behalf of the debtor was Alan Kirshen of Omaha, Neb...
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MEMORANDUM OPINION This matter was tried before the court on January 14, 1986 on the trustee’s Complaint, as amended, alleging a preferential transfer pursuant to 11 U.S.C. § 547(b) in the amount of $550.00 and the defendant’s Answer thereto. Pursuant to this court’s pre-trial Order of December 9, 1985, the sole affirmative defense raised by the defendant and heard at trial was whether or not the ...
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MEMORANDUM OF DECISION The United Steel Workers of America (USWA or Union) brings the present controversy before the court on a motion for appointment to the unsecured creditors’ committee of the Chapter 11 debtor and debtor in possession, Enduro Stainless, Inc. (Enduro). On February 21, 1986 Enduro filed a petition for relief under Chapter 11 of Title 11 of the United States Code and sim...
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MEMORANDUM OPINION This matter arises upon cross motions for summary judgment. The parties have stipulated to the following facts. The Plaintiffs are Chapter 13 debtors whose plan was confirmed on May 9, 1983. The Defendant, Douglas County, holds a real property tax lien pursuant to ORS 311.405, against the debtors’ residence in the amount of $2,599.56 plus interest on the unpaid pro...
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MEMORANDUM OPINION AND ORDER ON MOTION OF H. YALE GUTNICK FOR PAYMENT OF OPERATING EXPENSES AND OTHER LIABILITIES Case Summary Wheeling-Pittsburgh Steel Corporation (“Wheeling-Pittsburgh”) filed a petition for relief under Chapter 11 of the Bankruptcy Code (“Code”) on April 16, 1985. On May 22, 1985, H. Yale Gutnick, Receiver 1 of the Harmar Coal Company (“Receiver”), ...
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MEMORANDUM OPINION This matter is here on a creditor’s complaint to determine the dischargeability of a debt under sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (“the Code”). After oral determination of the complaint in favor of the creditor on the basis of his section 523(a)(4) claim for fraud and defalcation, the Court on its own motio...
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MEMORANDUM OF DECISION RE: MOTION FOR AWARD OF ATTORNEYS FEES Debtor, Robert M. Guiltinan, has brought a motion for an award of attorneys fees as against Norwood Federal Savings And Loan Association (“Norwood Federal”) and its attorneys pursuant to Bankruptcy Rule 9011 and 28 U.S.C. § 1927. Guiltinan filed a Chapter 7 proceeding on December 31, 1984. Norwood Federal was listed as a c...
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MEMORANDUM OF DECISION ON MOTION TO DETERMINE WHETHER PROCEEDINGS ARE CORE PROCEEDINGS OR ARE PROCEEDINGS OTHERWISE RELATED TO A CASE UNDER TITLE 11 I. Century Brass Products, Inc. (Century), the debtor-in-possession in this chapter 11 case, filed the above-identified complaints against three related defendant corporations on October 22, 1985. In each adversary proceeding Century see...
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The plaintiff has filed a summary judgment motion in connection with an adversary complaint seeking to have her debt found to be nondischargeable under 11 U.S.C. § 523(a)(4). The plaintiff claims that the debt owed her, which is embodied in an agreed state court order, is nondis-chargeable because it is based on fraud or defalcation by the debtor while he acted in a fiduciary capacity. She also...
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MEMORANDUM OPINION This matter came before the Court on creditor Colorado National Bank’s (CNB) Motion to Dismiss or in the Alternative for Change of Venue to the United States Bankruptcy Court for the District of Colorado. The debtor, Ginco, Inc. (Ginco) is a Nevada corporation with its principal place of business and principal corporate offices located in Denver, Colorado. On November 29, 1...
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OPINION AND ORDER SUSTAINING OBJECTION TO CONFIRMATION This matter is before the Court upon the objection to confirmation filed by State of Ohio, Ohio Student Loan Commission. The court has considered the evidence presented at the hearing, arguments of counsel, contents of the Chapter 13 bankruptcy case file, and judicial notice of the bankruptcy file. *131 FACTS The de...
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59 B.R. 600 (1986) In re Dennis GEEHAN, Debtor. Bankruptcy No. 3-85-02176. United States Bankruptcy Court, S.D. Ohio, W.D. March 18, 1986. James D. Ruppert, Alan J. Statman, Franklin, Ohio, for Wright State University. Christopher Hawk, Dayton, Ohio, for debtor. George W. Ledford, Englewood, Ohio, Trustee. DECISION AND ORDER DENYING CONFIRMATION OF DEBTOR'S CHAPTER 13 PLAN AND GRANTING 20 DAYS TO...
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MEMORANDUM OPINION This matter is before the court upon objection of Provo Railroad Credit Union (Creditor) to the chapter 13 plan of reorganization filed by Wayne E. Dondero and Virginia M. Dondero (Debtors). Creditor holds two claims against the Debtors. The first is an unsecured claim which Debtors list in their schedules as $1,884.96 and on which Debtor Wayne E. Dondero is obligated as a co...
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OPINION AND ORDER The Court has had under advisement the Motion for Relief from Stay and in the Alternative for Adequate Protection filed by American Savings and Loan Association, and the Motion for Order Authorizing Contract for Promotion and Sale filed by debtor Sedona San Carlos Development Company. The Court heard these two matters at the same time in joint hearings held on December 6, and ...
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MEMORANDUM DECISION RE: MOTIONS FOR SUMMARY JUDGMENT Picnic ‘N Chicken, Inc., the debtor and defendant in the complaint by Blue Bam Associates to impress an equitable lien, has moved this Court for summary judgment, contending there is no genuine issue of material fact remaining to be determined, and that the defendant is entitled to judgment as a matter of law. Plaintiff has made a cross-motio...
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FINDINGS, CONCLUSIONS AND ORDER ON MOTION TO DISMISS DEBTORS’ CHAPTER 11 CASE This matter comes before the Court on the motion of Federal Land Bank of Wichita to dismiss this case pursuant to 11 U.S.C. § 109(f). The motion was supported by Elbert Harris and Southwest Production Credit Association. Additionally, Southwest Production Credit Association asserts several alternative bases for ...
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ORDER THIS MATTER comes before the Court on the motion by Colorado National Bank-Orchard Mesa for an accounting and surrender of cash collateral. A hearing was held on this motion on March 12, 1986. The parties agree that CNB’s security agreement covers, among other things, the debtor’s livestock and products from the livestock. Miss Holmes, the debtor’s attorney, forwarded to Mr. Merrick, CN...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 11 case and the matter under consideration is a Motion For Summary Judgment filed by George Hunt, Inc., the Debtor in the above-styled adversary proceeding. The adversary proceeding was initiated by a Complaint filed by Jack and Shirley Pines, seeking to recover damages suffered by the Plaintiffs as a result of the Debtor’s performance under ...
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MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT STATEMENT OF THE CASE On November 29, 1984, Trust Company Bank of Middle Georgia, N.A., as executor under the will of Leo B. Huckabee, Sr., Plaintiff, filed a complaint in the Superior Court of Bibb County, Georgia, against Huckabee Auto Company, Mrs. Randall A. Huckabee, and General Motors Acceptance Corporation, Defendants. In its ...
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DECISION AND OPINION ON APPLICATION FOR ORDER OF RETENTION The debtor submits an application to retain two firms of attorneys: the firm of Booth, Marcus & Pierce and also the firm of Manning, Raab, Dealy & Sturm. The Booth firm, experienced in insolvency matters, is sought to be retained as insolvency counsel, and the Manning firm is sought to *4 be retained as special corpor...
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OPINION In this adversary proceeding, the plaintiff seeks to avoid an alleged preferential transfer pursuant to § 547 of the Bankruptcy Code (“Code”). For the reasons stated herein, we will enter judgment for the plaintiff in the amount of $7,041.28 plus interest. The facts are as follows: 1 Windsor Communications Group, Inc. (“Windsor”) is the plaintiff in this action. An involuntary pet...
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The issue before the Court is whether the Defendant should be held in contempt for repossession and retention of the Plaintiff’s vehicle after filing of the Bankruptcy petition. The facts appear as follows. The Defendant, Richard Long, operates Thrifty Auto Sales in Roanoke, Virginia. On May 28, 1985, the Debtor-Plaintiff, John LaTem-pa, entered into a contract to purchase a 1969 Ford van ...
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MEMORANDUM DECISION A final application for compensation was filed by the Law Offices of Jeffrey P. White, P.C. (“White”) for services to the debtors in these cases. On September 17, 1984, the Chapman Farms Partnership chapter 11 case was filed. Bernard and Patricia Chapman and Gregory and Mary Kay Chapman filed their chapter 11 cases on November 13, 1984. On November 21, 1984, the petiti...
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*820 MEMORANDUM DECISION A final application for compensation under section 331 of the Bankruptcy Code was filed by The Law Offices of Jeffrey P. White, P.C. (“White”) for services to the debtors in these combined chapter 11 cases. White withdrew from the cases on September 3, 1985. The debtors’ current attorneys, Kinney, Urban, Schrader, Bromley & Kussmaul have asked the court t...
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OPINION AND ORDER The debtor, by Terrence J. Byrne, has made an application to avoid liens on certain property pursuant to 11 U.S.C. § 522(b)(2) and Wisconsin Statute § 816.18(6). The Dorchester State Bank, by J.R. Tlusty, objects to the lien avoidance with respect to two assets: a New Holland 479 Haybine and a New Holland 68 Baler. A hearing was held in this matter on January 16, 1986, a...
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MEMORANDUM DECISION re Objections to Exemption; ORDER Continuing for Further Evidentiary Hearing The matters before the Court are objections by the Trustee in Bankruptcy and by MacMillan Oil Company, Inc., to Debtors’ claimed exemption in an annuity contract. These matters have been submitted on the basis of stipulated facts and briefs of the parties. Having reviewed the stipulation and the bri...
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MEMORANDUM RULING On the 7th day of October 1982, Heal Corporation was formed by Dr. James Layne Allain and Dr. Ralph M. Hennessee. In 1983, Dr. William W. Summitt paid $50,- *108 000.00 to practice prothedontics in the practice, paying one-half that amount to Dr. Allain and one-half the amount to Dr. Hen-nessee. As a result, Heal Corporation was then owned by the three docto...
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MEMORANDUM OPINION REGARDING MOTIONS BY DEBTORS FOR TURNOVER OF FUNDS The debtors in these cases seek orders to compel the Chapter 13 trustee to turn over the funds which, presumably, 1 represent *507 post-petition wages of the debtors which were assigned to the trustee pursuant to their respective Chapter 13 plans. In each of these cases, a Chapter 13 plan was confirmed by the Court, and...
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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 for trial on February 20, 1986. Plaintiff appeared by its attorney, John N. Nys. Defendants Frank Wayne Burgstaler and Margie Lee Burgstaler (hereinafter “Debtors”) appeared personally and by their attorney, Charles L. Nail, Jr. Upon the evi...
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DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION TO DISMISS This is a ease arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), (F) and (K), in which the plaintiff, Chapter 13 Trustee, *520seeks to avoid as a preference the security interest granted to the defendant, G...
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MEMORANDUM OPINION In this adversary proceeding to avoid and recover an alleged preferential transfer to the defendant from the involuntary Chapter 7 debtor, the defendant has filed a motion to disqualify the special counsel to the bankruptcy trustee and to impose sanctions upon both the special counsel and the trustee. The motion is opposed by the trustee and his special counsel. For the follo...
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OPINION The issue concerning us is whether we should grant two motions under Bankruptcy Rule 9024 which seek the vacation of two orders which were entered more than ten days prior to the filing of the motions. On the basis of the thoughts expressed herein, we will deny the motions. We set forth the facts in the case before us as follows:1 The debtors were plumbers who were engaged in a lucrative b...
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OPINION The object of this inquiry is whether under Bankruptcy Rules 4007(c) and *815 4004(a) the 60 day deadline for filing a complaint for an exception or objection to discharge runs from the “first date set” for the first meeting of creditors or the first date on which the first meeting of creditors is actually convened. Based on the reasons expressed below, we conclude th...
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OPINION In the case before us we are confronted with an issue of first impression in this district and we have found no other reported case on the subject in the country. The matter for inquiry is the meaning of the 1982 amendments to 15 U.S.C. § 1640(e) (1982) of the Truth in Lending *812 Act (“the TILA”) and whether those changes bar a debtor in bankruptcy from asserti...
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DECISION DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT On November 12, 1985, an order was entered sustaining plaintiffs’ objection to defendants’ motion to dismiss this adversary proceeding,1 which is an action to avoid the sale of the plaintiffs’ house, pursuant to 11 U.S.C. § 548(a)(2). On December 31, 1985 defendants filed a motion for reconsideration, contending that because an affidavit in ...
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ORDER SETTING FEES AND APPORTIONING LIABILITY THEREFOR Heard on the supplemental application for compensation filed by debtor’s counsel, David Yavner, Esq., of the firm of Pearl-man & Vogel, wherein Mr. Yavner requests attorneys’ fees in the amount of $8,032.50. Although the time expended (94.5 hours), and the hourly rate charged ($85.00) are reasonable, we find that, at most, 30% of...
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MEMORANDUM OPINION Coral Petroleum, Inc., a Texas corporation, filed a petition for relief under Chapter 11 of Title 11 of the United States Code (Bankruptcy Code) on June 2, 1983. Coral has acted as debtor-in-possession pursuant to sections 1107 and 1108 of the Bankruptcy Code, however the debtor has essentially not been operating its business. Three different plans of reorganization wer...
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MEMORANDUM OPINION This matter comes before the Court on the plaintiffs’ complaints for the entry of a declaratory judgment that 11 U.S.C. § 1141(d) is unconstitutional in that it denies them equal protection of the law in violation of the Fifth and Fourteenth Amendments of the United States Constitu *101 tion. 1 The plaintiffs’ principal allegation is that § 1141(d) discriminates against i...
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MEMORANDUM OPINION I FACTS The debtors, Harold Dean and Joy Faye Wallace, filed a proposed plan of reorganization under the provisions of Chapter 11. J.I. Case Credit Corporation (Case Credit) voted to reject the plan. At the confirmation hearing the parties entered into certain stipulations and agreements depending on the outcome of the Court’s decision on whether Case Credit’s...
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OPINION AND ORDER Upon consideration of the “motion for Declaratory Relief and Summary Judgment” filed by G.S. Simon, pro se, on December 31, 1985, and the Debtor-in-possession's opposition thereto, it appears that Mr. Simon has filed a proof of claim in the amount of $183,480.28 as a fully secured claim, but the Debtor has listed the claim as “disputed” and “undetermined” in *599 amount, a...
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MEMORANDUM AND ORDER The debtor has filed a motion pursuant to 11 U.S.C. § 522(f)(2)(B) to avoid a non-purchase money security interest held by First Midwest Bank of Moline (“the Bank”) in the debtor’s tools of trade given to the Bank by the debtor when he borrowed $6,007 from the Bank prior to filing his Chapter 7 petition. Included as collateral for that loan was a 1981 Barr Utility trailer, ...
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MEMORANDUM AND ORDER The debtor, Maudie Elma Griggs De-Moss, filed this Chapter 13 case on September 7,1982. The Chapter 13 Plan provided: CHAPTER 13 PLAN The debts of the Debtor, duly filed and approved by the Court, shall be paid to the holder thereof in full accordance with provisions of the Bankruptcy Code and this plan; The Debtor shall pay to the Trustee out of her fu...
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MEMORANDUM DECISION Sears, Roebuck & Company filed a Petition for Foreclosure Via Ordinaria in proceeding number 36305-B entitled Sears, Roebuck & Company vs Deborah Cassell, wife of/and Ronnie C. Taylor on the docket of the 11th District Court, Parish of Sabine. Judgment was rendered therein in favor of plaintiff on April 11, 1985 pursuant to an application for default judgment. The judgment reo...
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MEMORANDUM OPINION Presently before this Court are cross motions for summary judgment. The parties *96have stipulated to the relevant facts. The only issue remaining is the determination of the Defendant's secured status in the sale proceeds from the Debtor’s liquor license. After a review of the pleadings and briefs, along with the relevant case law, we hold that the Defendant is secured in the ...
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MEMORANDUM At issue is whether under § 1325 of the Bankruptcy Code, as amended, the substan-tiality of repayment of unsecured debt under a chapter 13 plan is a relevant factor to be considered in assessing the good faith of the plan. 11 U.S.C.A. § 1325 (West 1979 & Supp.1985). Also at issue is whether the debtor’s chapter 13 plan has provided that “all of the debtor’s projected dispo...
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MEMORANDUM OPINION On 15 July 1985 Satelco, Incorporated (hereinafter “Debtor”) filed its petition for relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101, et seq. Debtor was, and is, engaged in the business of supplying long distance telephone service to residential and commercial customers, most of whom are located within the State of Texas. On or about 31 December 1985 Deb...
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AMENDED MEMORANDUM OF DECISION ON APPLICATION OF STROOCK & STROOCK & LAVAN FOR FINAL ALLOWANCE OF COMPENSATION AND MOTION OF KERO-SUN, INC. FOR EXAMINA- . TION OF FEES RECEIVED BY STROOCK & STROOCK & LAVAN I. The court, on October 16, 1985, confirmed a plan of reorganization in the chapter 11 case of the debtor, Kero-Sun, Inc. (Kero-Sun), and has now concluded hearings on application...
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MEMORANDUM OPINION AND ORDER This matter came on for trial on December 13 and 14, 1984, upon a complaint to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(6). Plaintiff Randall Lee Davis, d/b/a R.L. Davis Company, appeared by William 0. Isenhour, Jr., of Soden and Isenhour, P.A. Defendant/Debtors James K. and Bonnie J. Mar-ler appeared in person and by Thomas Foster, of...
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MEMORANDUM OPINION The Application for Sequestration of Rents and Profits by Saline State Bank in both of the above-entitled cases was consolidated for trial. Evidentiary hearing was held on November 12, 1985. History of the Case The debtors filed their original petitions under Chapter 11 of the Bankruptcy Code on November 30, 1982. The Saline State Bank (Bank) filed its Applications to...
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OPINION The creditors committee in the above captioned proceeding moves to lift the self-imposed stay, thereby permitting the proceeding to proceed toward confirmation with the proposed plans of reorganization now on file. For the reasons set forth below, the motion is denied. To briefly recap the history of this case, a hearing was held by this Court on October 15, 1985, ostensibly to dismiss the...
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DECISION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The court is presented with a motion for summary judgment by defendant New York Wholesale Distributors Corp. (“NYWD”). NYWD’s motion must be denied because there exist issues of material fact in dispute that preclude the entry of summary judgment and require a trial on the merits. On November 21, 1984, Dukseung of Ame...
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MEMORANDUM DECISION GRANTING SUMMARY JUDGMENT AND EXPUNGING CLAIM Ali A. Razaghi (“Razaghi”), a former employee of United Cerebral Palsy Associations of New York State, Inc. (“UCP”), the debtor, has filed a proof of claim for $1 million in this now-confirmed Chapter 11 case asserting that his pre-petition discharge by UCP on March 5, 1983, was the result of unlawful discrimination on the grounds ...
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DECISION ON OBJECTIONS TO DISCHARGE The United Fidelity & Casualty Company (“USF&G”), a $500,000 judgment creditor, and the trustee in bankruptcy of this estate, have joined in objecting to the granting of a discharge in bankruptcy to Joseph L. DeLancey, the debtor in this Chapter 7 case. The first count in both complaints alleges that the debtor’s discharge should be denied pursuant to 1...
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59 B.R. 89 (1986) In re Richard M. DUMONT, Debtor. Richard M. DUMONT, Plaintiff, v. Aldo A. AIUDI, Celia A. Aiudi, Michael A. Aiudi, Vincent P. Ward and Estelle D. Ward, Defendants. Bankruptcy No. 8500662, Adv. No. 850062. United States Bankruptcy Court, D. Rhode Island. March 12, 1986. Leon Aronson, Quincy, Mass., for debtor-plaintiff. Oleg Nikolyszyn, Providence, R.I., for defendants Aldo A., C...
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DECISION AND ORDER ON APPLICATION FOR RELIEF INCLUDING THE APPOINTMENT OF A TRUSTEE On October 28, 1985, Marilyn Pittman d/b/a Benchmark Publications Unlimited, Inc., d/b/a Benchmark Publications, d/b/a International Services Magazines (“debt- or”) filed a voluntary petition under Chapter 13 of the Bankruptcy Code, Bankruptcy Case No. 85-06759-H2-1. On November 22, 1985, the debtor converted ...
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MEMORANDUM OPINION The issue for determination here arises on the plaintiffs objection to the debtor’s application for attorney’s fees and costs pursuant to section 523(d) of the Bankruptcy Reform Act of 1978 (“the Code”). 1 See 11 U.S.C. § 523(d) (amended 1984). After debtor Ronald Earl Wiencek received a Chapter 7 discharge, plaintiff Michael J. Morrissey, an atto...
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MEMORANDUM DECISION This matter came on for a hearing on a request for payment of an administration expense on December 9, 1985, and was taken under advisement with the parties to submit briefs. Although there are some factual issues in dispute none affects the outcome. The sole question of law present *504 ed is whether the trustee is required to pay full reserved rent under...
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OPINION AND ORDER ON MOTIONS TO DISMISS COMPLAINT Introduction— The above-styled case was commenced by the debtor’s voluntary petition filed under title 11, chapter 11, United States Code, on September 29, 1983. This case and all proceedings therein were referred to the bankruptcy judges by an order of the District Court after July 10, 1984, and said case remains pending under said chapter 11, bef...
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MEMORANDUM AND ORDER This matter is before the Court on the debtor’s application for appointment of a legal representative for future asbestos-related claimants. The United States Trustee for the Northern District of Illinois has submitted a memorandum in support of the debtor’s application. The Official Committee of Asbestos-Related Claimants (the “Committee”) has filed a memorandum in opposit...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of Louis W. Levit, trustee of the estate of V.N. Deprizio Construction Company (“debtor”), for a declaratory judgment that payments to non-insider creditors made more than 90 days but not more than one year prior to commencement of the bankruptcy case and which benefit insider-guarantors of the underlying debts are voidable ...
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ORDER This chapter 7 case is before the Court on the trustee’s complaint for turnover of the debtor’s inheritance from her mother’s estate. The mother’s estate has been closed, and the remaining funds, totaling $3,683.26, have been paid to the Clerk of the Bankruptcy Court. The executor of the estate has been dismissed as a party, *330 and the debtor has been discharged. The ...
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The above entitled matter came on for hearing on the motion of Fairlane Town Center, lessor, to require payment of rent under 11 U.S.C. § 365(d)(3). Based upon the arguments of counsel, memoranda and affidavits on file 1 I am *753 granting the lessor’s motion to the extent that I am ordering that the debtor-lessee pay immediately the rent due under its lease with Fa...
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59 B.R. 86 (1986) In the Matter of WESMAC COMPUTER SYSTEMS, INC., d/b/a Computerland of Bergen County, Debtor. Bankruptcy No. 85-05965. United States Bankruptcy Court, D. New Jersey. March 11, 1986. *87 Jerrold R. McDowell, Hackensack, N.J., for debtor. Cole, Schotz, Bernstein, Meisel & Forman by Gerald H. Gline, Hackensack, N.J., for 35 Plaza Associates. OPINION D. JOSEPH DeVITO, Bankruptcy Jud...
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MEMORANDUM DECISION The parties have put to the court for resolution an issue respecting the interpretation to be given to Bankruptcy Code § 365(d)(3), a provision added in July 1984 by the Bankruptcy Amendments and Federal Judgeship Act (“BAFJA”). This section provides, inter alia: “The trustee shall timely perform all the obligations of the debtor, except those specified in section 365(b)...
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MEMORANDUM DECISION Introduction This matter is before the Court on a complaint to compel turnover of property and for an accounting filed on behalf of Donald Lee Barton (“debtor”) by Attorney Robert A. Warder on January 13, 1986. Debtor requests that: 1) the defendant, who is an officer/director of Barton Masonry, Inc., turn over certain stock certificates of that corporation wh...
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MEMORANDUM Defendant seeks dismissal of this adversary proceeding involving the discharge-ability of an alleged debt arising from a “fine, penalty, or forfeiture payable to and for the benefit of a governmental unit....” 11 U.S.C. § 523(a)(7). 1 The motion to dismiss will be GRANTED. I Plaintiff, Kentucky Central Insurance Company, filed its complaint on November 22, ...
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MEMORANDUM OF DECISION Plaintiff, CENTRAL NATIONAL BANK OF SAN ANGELO (“the Bank”), brings this interpleader action under Rule 7024 of the Bankruptcy Rules seeking protection *49 from potential conflicting claims to funds on deposit in various accounts at the Bank totalling approximately $43,474.00. Trial was held before the Court on February 7, 1986; and the Court, having he...
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MEMORANDUM OPINION The Plaintiff’s Complaint seeks nondis-chargeability of its debt against the Debtors pursuant to 11 U.S.C. Section 523(a)(2), and the Court files the following Memorandum in lieu of Findings of Fact and Conclusions of Law as provided by Rule 7052. The Debtor operated a home improvement business under the name of House-craft, later incorporated, in Tazewell and Buchanan Counties...
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MEMORANDUM AND ORDER The plaintiff, Manufacturers Hanover Trust (“the Bank”), has filed a complaint to revoke the debtors’ discharge pursuant to 11 U.S.C. § 727(d). The debtors have filed a motion to dismiss the complaint. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). The facts are not in serious dispute. According to the Bank, the debtors ran up some $3,348 in charges on...
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MEMORANDUM AND ORDER The National Fidelity Bank of Shreveport, Louisiana, filed this Motion to Modify Stay or for Adequate Protection in response to an Ex parte Turnover Order obtained by the Trustee. The Turnover Order directed the bank to turnover some $369.28 that the debtor maintained in two accounts at the bank. The bank is a creditor of the debtor for approximately $20,-000.00. The Trus...
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ORDER The above-entitled matter came on for hearing before me on February 20, 1986, on the objection of the Trustee to certain claimed exemptions of the Debtors. The Trustee objects to exemption of certain annuities and life insurance policies held in Keogh plans which Debtors claim are exempt under M.S.A. § 550.37 subd. 24. Based upon the evidence adduced at the hearing and introduc...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE DECLARING DEFENDANTS’ INDEBTEDNESS TO PLAINTIFF IN THE SUM OF $2,000 TO BE NONDISCHARGEABLE IN BANKRUPTCY AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM FROM DEFENDANTS Plaintiff seeks a decree of nondischarge-ability of the defendants’ indebtedness to it in the sum of $2,000 which represents the proceeds of sale of a certai...
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*110 FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DECLARING DEFENDANT’S LIABILITY TO PLAINTIFF TO BE DIS-CHARGEABLE IN BANKRUPTCY This is an action in which the plaintiff seeks a decree of nondischargeablity of an indebtedness alleged to have been created by defendant’s willful and malicious injury to the person and property of plaintiff within the meaning of § 523(a)(6)...
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MEMORANDUM OPINION This matter came on for a hearing in Omaha, Nebraska, on December 13, 1985, upon the Defendants’ application to remove to the Bankruptcy Court, the Plaintiffs motion to remand to State Court, and the oral motion of the Plaintiff for an order requiring the Defendants to pay Plaintiff’s costs and expenses under a bond required for the removal action. The Defendants, Eugen...
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OPINION This matter concerns the entry of an order entered pursuant to an opinion of this Court, rendered in a case consolidated with that of the debtor named herein. After due consideration of the numerous arguments and motions made by the parties, this Court finds the order entered on September 23, 1985 to be the proper implementation of the intent of the aforerendered opinion. That order is her...
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OPINION The debtor, Kerr Concrete Pipe Company (“Kerr”), seeks to reopen the above proceeding for the purpose of obtaining an order permanently restraining and enjoining the firm of Paterno & Sons, Inc. (“Pa-terno”) from prosecuting a third-party complaint against the debtor in the Supreme Court of New York. For the reasons set forth below, the motion is granted. Briefly reviewing the facts, it a...
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OPINION The Court considers here the motion of Kevin S. Donahue seeking to vacate the automatic stay of § 362 of Title 11. At the conclusion of the hearing, the Court granted the motion and entered an order to that effect on the same day. The Court files this opinion to briefly memorialize its findings and conclusions of law, pursuant to Federal Rule of Civil Procedure 52. The facts indicate ...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the motion of the Portage County Regional *590 Airport Authority (“PCRAA”) for relief from stay and payment of administrative expenses. The PCRAA operates the Portage County Airport. On property immediately adjacent to the airport, debtor-in-possession (“Debtor”) operates a business involving aircraft repair, fueling, sales an...
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MEMORANDUM OPINION Presently before this Court is a Complaint by Plaintiffs objecting to the discharge of Mr. Alfred B. Brooks (hereinafter “Debtor”). 1 Specifically, Plaintiffs *464 contend that the Debtor should be denied a discharge under §§ 727(a)(2)(A) and 727(a)(4)(A) of the Bankruptcy Code, for transferring property within one (1) year of filing in order to ...
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MEMORANDUM OPINION In this Chapter 11 case, the debtor-corporation filed a Motion to Show Cause why a creditor should not be held in contempt, under the In re MortgageAmerica, 714 F.2d 1266 (5th Cir.1983) holding, for serving interrogatories on non-bankruptcy co-defendants in a state court action based on a “piercing the corporate veil” theory. The matter was heard and an Order...
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MEMORANDUM OF DECISION I. This matter is before the court in this chapter 11 case on a motion of The Lauretti Corporation (debtor) for determination of the amount of a debt owed by it to Citizens National Bank of Southington (Bank). No evidentiary hearing has been held, the parties having stipulated to the following facts. On April 19, 1983, the debtor executed a $500,000.00 dem...
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MEMORANDUM OPINION Good faith in Chapter 11 is again an issue before this court. Here we consider whether it is permissible for a financially sound debtor to invoke Chapter 11 to avoid posting a supersedeas bond in pending state court litigation. We conclude that it is not, and order this case dismissed. The recent financial history of the Scottish Inn Motel in Bowling Green, Kentucky, under ...
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DECISION ON MOTION FOR A REHEARING Jules Teitelbaum, P.C., attorney for trustee Miriam Teitelbaum, has moved for a rehearing of its application for final compensation in this Chapter 7 case. The trustee is also an associate with the applicant’s firm. In a decision dated January 7, 1986, 56 B.R. 546, the court denied a portion of the original application because the contemporaneous time records sub...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW GRANTING JUDGMENT TO TRUSTEE AGAINST GEORGE BROWNING, ALLOWING OFFSETS AND ADMINISTRATIVE CLAIM TO MARGENE BROWNING George Browning (“Browning”) and his wife (collectively “the Brownings”) filed an action against Everette Williams, the chapter 7 trustee (“trustee”), to recover possession of the former freight terminal of Silver Wheel Freightlines, Inc. (“...
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MEMORANDUM OPINION AND ORDER RE: MOTION FOR NEW TRIAL OR AMENDED JUDGMENT This cause is before the Court on the Plaintiff’s motion for a new trial or, in the alternative, amendment of this Court’s September 12, 1985 judgment for the Defendant. The Court denied the motion for a new trial but agreed to reconsider its judgment. The primary issue is whether the Court erred as a matter of law in ruling...
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MEMORANDUM ON MOTION TO DETERMINE STATUS OF CLAIMS At issue is whether a modular motel unit, essentially a mobile home, is within the scope of the Tennessee Motor Vehicle Title and Registration Law. Tenn.Code Ann. § 55-1-101 (1980). I The facts are undisputed. On January 13, 1986, the debtors filed their chapter 11 petition. On January 24, 1986, the court approved the sale, pursuant to 11 U.S.C.A...
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MEMORANDUM DECISION The debtor, Patch Graphics, filed a petition for relief under chapter 11 of the Bankruptcy Code on July 15, 1982. A 'plan was confirmed on October 25, 1983. On May 11, 1984, the movant in this proceeding, B.I.W. Credit Union, extended a loan of $31,000.00 to the debtor for the purchase of a “Varityper Comp/Edit 5810 Phototypesetter Image previewer” along with various a...
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OPINION I This is an appeal from the order refusing to set aside a confirmed sale of the Debt- or’s interest in pre-petition installment land contract to sell certain real estate to the Appellants, which in Montana is called a “Contract for Deed.” The deed was placed in escrow where it will remain until the Appellants, Dwane and Judith Horton, make the last of a series of payments sp...
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MEMORANDUM OPINION PURSUANT TO ORDER ON REMAND THIS IS a Chapter 11 case and the matter before this Court is an adversary proceeding instituted by Helen Costello (Costello) against F & M Enterprises (Debtor). The Complaint filed by Ms. Costello sought a determination by this Court that a certain transaction between her and the Debtor was, in fact, a mortgage loan transaction whereby Ms. Costello ...
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DECISION ON MOTION FOR AN ORDER GRANTING NEW TRIAL The debtors in possession in this substantively consolidated case have moved for an order pursuant to Bankruptcy Rule 9023 and Rule 59(a)(2) of the Federal Rules of Civil Procedure for an order granting a new trial of a previous motion under 11 U.S.C. § 365(d)(4) to assume an unexpired *442lease at 999 Summer Street, Stamford, Connecticut and ext...
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ORDER Before the Court is the motion of Debtors, Robert and Patricia Gash, to avoid judicial liens of Sears, Roebuck and Co., Joseph Horne Co., J.C. Penney Co., May Co., and Daniel C. Carmack, Trustee. Joseph Horne Co. filed a motion to dismiss and a brief in opposition to relief requested. No other responses were filed. Debtors and Respondent submitted this matter on the following stipulations: ...
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*440 OPINION The focus of our current inquiry is whether we should grant a debtors’ motion to reopen a chapter 7 case so that the debtors may add an additional creditor. On the basis of the reasons expressed below, we conclude that the motion should be granted. The facts of this dispute are as follows: 1 The debtors filed a petition for relief under chapter 7 of the Bankruptcy Code (“the ...
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The trustee seeks to avoid as a fraudulent transfer the payment of $8,838.33 to the defendant Phillips. 11 U.S.C.A. §§ 544(b), 1 548 2 (West 1979). 3 The facts are not in dispute. Pertinent documents have been stipulated. I On March 12, 1971, Beckham L. Phillips, now deceased, and the defendant Hazel Phillips, sold to East Tennessee Realty, Inc., a 6-a...
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MEMORANDUM OPINION This matter is before the court on the objection by the debtors and the chapter 13 trustee to an amended proof of claim filed by the Internal Revenue Service (“IRS”). The court finds this is a core proceeding. 28 U.S.C. § 157(b)(2)(B). BACKGROUND The debtors, Irving and Florence New-comb, (the “debtors”), filed a petition under Chapter 13 of the Bankruptcy Code on May 2...
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ORDER Upon consideration of the Debtor’s motion for continuance of discharge hearing, it is, ORDERED that the Debtor’s discharge hearing is continued until -, 1986, at_m. As to the Debtor’s apparent suggestion that this Court has power to extend the *109time for creditors to file complaints objecting to discharge or dischargeability, the Court points to the explicit limitations on this Court’s pow...
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ORDER ON MOTION TO ASSUME AND ASSIGN LEASE THE MATTER before the Court in this Chapter 11 case is the Motion to Assume and “Assign Lease Assignment” (sic) with Old Hyde Park Village Center, Ltd., filed by the Debtor. Although the Debtor originally sought to assume and assign the lease, at the time of the hearing the assign-ee was no longer willing to proceed and the motion was treated as one to...
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MEMORANDUM DECISION A creditor seeks exception from discharge for its claim of $14,882 under 11 U.S.C. § 523(a)(4), alleging that the debt was for “embezzlement or larceny.” At trial, plaintiff abandoned any other ground referred to in its complaint, which also mentions § 523(a)(2)(A) and “fraud or defalcation while acting in a fiduciary capacity” under § 523(a)(4), as well as § 727 (grounds for d...
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MEMORANDUM DECISION The debtor’s ex-wife and her attorney seek exception from discharge under 11 U.S.C. § 523(a)(5). The debtor has answered. The matter was tried on February 27. The facts are not in dispute. The marriage was dissolved in Pasco county by a six-page Final Judgment entered July 25, 1985. The Judgment granted custody of one child to each parent and provided separate child support whi...
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MEMORANDUM OPINION This adversary proceeding having come on for trial on January 29, 1986, and the Court having considered the evidence and the arguments presented, now publishes this opinion. Security Title and Guaranty Company, Plaintiff, in its complaint asserts that a certain debt owed to it by Richard Wilmot Campbell, Defendant, is nondischargeable in bankruptcy pursuant to sect...
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MEMORANDUM OPINION In this case of competing prepetition tax liens, state and federal, we are urged to assign the higher priority to the lien which arose first in point of time. Under the clear language of the Bankruptcy Code we are unable to reach that result. State and federal tax liens in excess of $100,000 were asserted against the property of John Darnell before he took bankrupt...
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ORDER The above entitled matter came on for hearing on the motion of secured creditor State Bank of Young America objecting to: (1) debtor’s claimed exemption of $10,000 of farming equipment under Minn.Stat. Ann. § 550.37, subd. 5 (West Supp.1986); and (2) debtor’s claimed exemption of patronage funds due from Bongards Creamery Association with an estimated value of $37,000 — $48,204.43 a...
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ORDER This matter coming to be heard on the Emergency Application of AAA Produce Company, Inc., Debtor and Debtor-In-Possession (“Debtor”), to Borrow Money and to Grant Security Interest, (“Application”), the Court having been advised in the premises, the Court hereby enters the following Findings and Order: THE COURT HEREBY FINDS THAT: 1. The Application is deemed to have been made “in goo...
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DECISION ON ORDER TO SHOW CAUSE FOR AN ORDER DISMISSING CHAPTER XI PETITION. The motion before the court is yet another confrontation in the continuing battle between the confirmed debtor, Emergency Beacon Beacon (“the debtor”) and Mont-martco, Inc. (“Montmartco”), the largest unsubordinated general unsecured creditor of the debtor. 1 Montmartco seeks an order dismissing the debtor’s petition...
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OPINION The matter for decision is whether we should sustain the trustee’s objections to three proofs of claim filed by the debtor’s president and his relatives. For the reasons stated below, we will sustain the objections. We summarize the relevant facts of this case as follows: 1 The debtor filed a petition for reorganization under Chapter XI of the Bankruptcy Act of 1898. Numerous proofs...
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OPINION The focus of this controversy is whether a prepetition financial obligation of the debtors should be declared nondischargeable under a creditor’s complaint seeking that relief. For the reasons outlined below, we hold that the debt is not discharge-able as to the husband-debtor under 11 U.S.C. § 523(a)(2)(B) of the Bankruptcy Code (“the Code”) but that the debt of the wife-debtor i...
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MEMORANDUM DECISION Introduction This matter is before the Court on a resistance to motion for determination of extent and validity of liens and motion to determine acceptance or rejection of exec-utory contract filed on behalf of Sprecher Brothers Livestock & Grain, Ltd., Joel Kim Sprecher, Nancy Faye Sprecher, and Gene Alan Sprecher (“Debtors”) 1 by Attorney Max A. G...
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MEMORANDUM DECISION Introduction This matter is before the Court on a complaint for permanent injunction against Clark Community Oil Company, together with all of its agents, employees, and Greg Overby, its manager (“Defendants”), filed on behalf of Dettler Farms (“Debtor”) by Attorney J. Bruce Blake, Sioux Falls, South Dakota, on May 10, 1985. The relief requested is a permanent...
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MEMORANDUM DECISION I. Introduction This matter is before the Court on a complaint for violation of automatic stay and for turnover of property to the estate filed on behalf of Mervin Richard Mewes and Doris Louise Mewes (“Debtors”) by Attorney Thomas M. Tobin, Aberdeen, South Dakota, on June 4, 1985. Debtors substantively allege that: 1) BankWest’s offset of their ranch checking account vi...
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MEMORANDUM OPINION ON COMPLAINTS TO DETERMINE DIS-CHARGEABILITY OF DEBT AND OBJECTING TO DISCHARGE These adversary proceedings were consolidated for trial purposes and heard together on January 6, 1986. Following are the Court’s findings of fact and conclusions of law under Bankruptcy Rule 7052. ADVERSARY NO. 385-3337 This particular adversary proceeding involved the Complaint o...
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MEMORANDUM OPINION The case at bar is an adversary proceeding brought by Debtor Richard Wolfe (“Wolfe” or “Plaintiff”) against First Federal Savings and Loan Association of Para-gould (“First Federal” or “Defendant”). During the hearing on Defendant’s jury demand, First Federal stipulated that this was a core proceeding and consented to this Court’s jurisdiction, as well as consenting to ...
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*581 ORDER FOR RELIEF On September 13,1985, Quaker State Oil Refining Corporation (“Quaker State”), S & C Electric Company (“S & C”), Central Bank (“Central Bank”), and First State Bank (“First State”), the original petitioners herein, filed with the United States Bankruptcy Court for the Northern District of Illinois, Eastern Division (the “Illinois Court”), a petition (the “Pet...
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*119 DECISION This matter comes on to be heard on the Petition for Rule to Show Cause filed by the Debtors, who are farmers, against the Respondents, The United States Department of Agriculture, Agricultural Stabilization and Conservation Service, and the Commodity Credit Corporation. The petition is filed under Section 525 of the Bankruptcy Code. The Respondents are respons...
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TRUST FUNDS — SECURED CREDITORS — BONA FIDE PURCHASER This matter involves a dispute between Rieth-Riley Construction Company, Plaintiff, and First Security Bank, Defendant, over the relative interest of each party in an escrow account which was ordered to be created by this Court on March 27, 1984. Rieth-Riley claims the interest of a beneficiary under the Michigan Builders Trust Fund Ac...
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DECISION Pursuant to the adversarial procedure charted by Part 7 of the Rules of Bankruptcy Procedure, Rules 701 et seq., the trustee (hereafter “plaintiff”) on August 16, 1985, served upon the above-named defendants a complaint encompassing two separately stated and numbered causes of action. The gravamen of the first cause of action seeks to avoid the transfer (assignmen...
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Beker Industries Corp. and Beker Phosphate Corporation (collectively “Beker” or the “Debtors”) seek the approval of this Court pursuant to § 364(d) of the Bankruptcy Code, 11 U.S.C. § 364(d) (1984) (the “Code”), to enter into a proposed loan agreement (“Proposed Agreement”) with four lenders. Three of the lenders provided secured loans to Beker pre-petition, are parties to a post-petition lendi...
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MEMORANDUM DECISION AND ORDER Fred W. Woodson, Trustee, brings this adversary proceeding against Tom Bell Leasing, to determine priority of conflicting interests in certain motor vehicles or their proceeds. The issue is whether written agreements concerning these vehicles, and purporting to be leases, should be treated as unperfected security agreements. After complaint and answer, a...
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MEMORANDUM DECISION RE: LIEN AVOIDANCE Debtor, Lucy Marie Williams, seeks to avoid the judicial lien of Bank of America which it asserts has attached to the proceeds of the voluntary sale of her personal residence. The facts of this case are not in dispute. On January 30, 1985, debtor executed a declaration of homestead which was recorded in the office of the San Diego County Recorder on Febr...
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ORDERS ON MOTIONS TO DISMISS THESE ARE two Chapter 11 cases with strikingly similar fact patterns, albeit, the cases are not interconnected at all. The initial question under consideration in both cases is a challenge by parties of interest of the rights of these Debtors to maintain a Chapter 11 case. In both cases the parties of interest seek a dismissal of these two Chapter 11 cases. Th...
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MEMORANDUM OF DECISION This is a Chapter 11 case filed on January 10, 1986, by the debtor-in-possession, Weiser, Inc. The matters before the court include the Debtor’s application to use cash collateral and a motion for relief from the automatic stay filed by the Perry State Bank (“Bank”). The Bank has objected to the Debtor’s cash collateral application and the Debtor has filed a resista...
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DECISION & ORDER On July 8, 1981, Continental Bank (hereinafter “creditor”) moved for an order dismissing the debtors’ Chapter 13 case on the grounds that the debtors exceeded the $100,000 unsecured debt limit as prescribed in 11 U.S.C. § 109(e). By decision of this court, dated April 15, 1982, creditor’s motion was dismissed for failure to establish by a preponderance of the evidence tha...
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*305MEMORANDUM DECISION Motion to Dismiss for Failure to State a Claim On May 1, 1985, the debtors, Andrea and Harvey Sheehan, filed a complaint objecting to the allowance of the claim of Prudential Insurance Company of America. The defendant responded with a motion to abstain or, in the alternative, for withdrawal of reference; a motion to dismiss the complaint for failure to state a cause of ...
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FINDINGS OF FACT AND' CONCLUSIONS OF LAW These matters came before the court for consolidated hearing on April 4, 1985. Appearing were Keith Rodriguez, Charles N. Wooten, Ltd., for trustee; Scott J. Pias, Camp, Carmouche, Barsh, Hunter, Gray, Hoffman and Gill, for Calcasieu Marine National Bank, and Max M. Morris, Morris and Casey, for debtors. After taking testimony in these cases, the court a...
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FINDING AS TO OBJECTIONS TO DISCHARGE A trial was held on February 25, 1986 on Counts I, II, and IV of the complaint objecting to discharge of the debtor, Peter H. Bandy, by Richard I. Kuhn, trustee of the estate of Crane Howard Lithograph Company. Appearing on behalf of the trustee was David M. Hunter, and on behalf of Peter H. Bandy, James L. Bickett and Dale V. Wilson. At the close of all evide...
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ORDER This matter is before the Court pursuant to a motion to dismiss and a motion for summary judgment by the debtor pursuant to Rules 12(b)(4), 12(b)(5) and 56 of the Federal Rules of Civil Procedure. The two issues before the Court are (1) whether the debtor received sufficient service of Process> and (2) whether the plaintiffs dischargeability complaint was timely filed with this...
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OPINION One of the most vexing issues confronting the court in the distribution of administrative expenses in Chapter 11 cases is that of priority. In the instant case, for instance, the query presented is whether counsel to a creditors’ committee may be paid in full the interim compensation awarded him when there are insufficient assets to pay in full all other administrative claimants. ...
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DECISION Heard on Allen Carr’s objection to the trustee’s Notice of Intention to Compromise a cause of action pending in the Providence County Superior Court, entitled Hydronic Enterprises, [sic] Inc. v. Danal Jewelry Co., C.A. No. 81-4011. For the reasons given below, we decline to authorize the trustee to accept $10,000 to settle the Danal claim. On March 24, 1983, an or...
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MEMORANDUM OPINION AND ORDER Before the Court are two motions. S.B. Evans, Jr., Sabine Uplift Mineral Corporation, Richard H. Evans, and Teri L. Evans (“Defendants”), have filed a motion to dismiss claims by intervenor Marmid Energy Corporation for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Marmid Energy Corporation (“Intervenor”) has ...
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DECISION The issue presented in this case is whether creditors are entitled to a new period to file complaints to determine the discharge-ability of debts or to object to the debtors’ *113 discharge after a case has been converted from Chapter 11 to Chapter 7. William Richard Blatz and Mary Jo Blatz (“debtors”) filed a petition under Chapter 11 of the Bankruptcy Code on ...
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DECISION and ORDER Debtors filed a Motion to Avoid Lien under Bankruptcy Code § 522(f)(1), alleging that the judgment lien of Pure Gro Company impairs their homestead exemption. Pure Gro objected, and after a hearing on August 29, 1985 and further briefing by the parties, the matter was submitted to the Court for decision. The issue before the Court is whether each debtor in a joint petition ...
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DECISION ON OBJECTION TO CLAIM OF WESTCHESTER HUDSON FUEL CO. The Chapter 11 debtor, Felix Contracting Corp’n (“Felix”), objects to the portion of a claim filed by Westchester Hudson Fuel Co., Inc. (“Westchester”) relating to finance charges on diesel fuel and gasoline sold to the debtor in connection with a construction job performed by the debtor. Westchester contends that the finance charges i...
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ORDER The Debtors herein, Julius and Carol Wolf, filed motions to determine the secured status of liens and to avoid liens under Sections 506 and 522, respectively, of the United States Bankruptcy Code. No responses were filed. After hearing and on consideration the Court finds the relief requested is unwarranted. The following facts are pertinent: 1)On May 15, 1985, Debtors fil...
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OPINION The subject of this dispute is whether we should grant a mortgagees’ motion for relief from the automatic stay so they can continue with foreclosure proceedings in state court. Since the debtor has failed to make the requisite monthly payments on the mortgage for the past three years, we will grant the request for relief from the automatic stay. We recapitulate the facts of this case ...
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OPINION The primary query before us is whether we should grant a creditor relief from the automatic stay so it can institute suit against the debtor for a cause of action that arose after the filing of the petition. Since we conclude that the automatic stay does not bar the commencement of an action against the debtor on a postpetition claim, we will deny the requested relief as unnecessa...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether the debt to Creditway of America should be *738 held nondischargeable under 11 U.S.C. § 523(a)(6). Briefly stated, the facts appear as follows. On April 8, 1985, the Debtor, Richard Anthony Brubaker, entered into a retail installment sales contract and security agreement with Comfort Rest Waterbeds for th...
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*724MEMORANDUM OPINION AND ORDER William and Brenda Rementer filed a Chapter 7 petition on October 25, 1984. They were granted a discharge from debts on February 28, 1985. This discharge relieved them of liability for dischargeable debts in return for the relinquishment of their non-exempt assets for distribution among their creditors. When the Trustee attempted to sell real estate in which Willia...
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MEMORANDUM DECISION The liquidating trustee appointed under this debtor’s chapter 11 plan seeks recovery of $3 million from the defendant Panamanian corporation under 11 U.S.C. § 548(a)(2). The complaint was filed in the District Court on May 17, 1985. On June 27, 1985, the District Judge entered an order transferring the case to the bankruptcy court (C.P. No. 1), however, that order was never bro...
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MEMORANDUM OPINION DENYING MOTION FOR SUMMARY JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. *69 § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Mid...
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ORDER This matter came on for hearing on January 8, 1986, on application of the Debtor’s attorney for allowance of fees and costs pursuant to 11 U.S.C. § 330, § 331, and § 506(c). Richard Nadler appeared on his own behalf; John Hedback appeared on behalf of the United States Trustee; James Lanning appeared on behalf of the Internal Revenue Service; and James Wellner appeared on behalf of Donald...
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ORDER At Butte in said District this 26th day of February, 1986. In this Chapter 7 proceeding the Debtor has listed as a creditor the Holiday Shopping Center, based on a Judgment entered in a criminal cause in state court wherein Debtor was ordered to make restitution as part of the criminal sentence. On October 18, 1985, David A. Hakes in letter form, pro se, objected to the dischar...
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MEMORANDUM OPINION RE FIRST BEEMER LEASING CORPORATION APPLICATION FOR PAYMENT AND ALLOWANCE OF ADMINISTRATIVE RENT AND MOTION FOR RELIEF FROM AUTOMATIC STAY The application of First Beemer Leasing Corporation for payment and allowance of administrative rent and the motion for relief from automatic stay filed by First Beemer Leasing Corporation were consolidated by agreement of the partie...
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CERTIFICATE OF CONTEMPT PURSUANT TO 28 U.S.C. § 157(c)(1) TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK: I, Cecelia H. Goetz, Bankruptcy Judge in the above-entitled case, upon the application of Alan and Louise Look, by their attorney, and after a hearing on due notice to Kalpana Indian Groceries & Spices, Inc. (“Kalpana Groceries”), the Debtor herein, and ...
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DECISION AND ORDER This matter came to be heard upon the complaint of Ellis Graphics Corporation alleging that debtor induced Ellis to extend credit by use of a materially false financial statement; that debtor made false oaths on his bankruptcy petition; and that debtor filed this bankruptcy in bad faith. Debtor denied Ellis’s allegations. The Court finds that Ellis has failed to prove its allega...
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This matter came to be heard on the motion of Capital Resources Corporation (Capital) for an order dismissing debtors’ petition, or in the alternative, lifting the automatic stay against Capital pursuing its remedies against debtors in state court. Debtors made a motion to strike Capital’s claim. FACTS 1. Debtor filed a petition for bankruptcy on May 1, 1985. 2. On July 18, 1985, debtors plan for ...
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OPINION This appears to be a ease of first impression. The gravamen of the debtor’s motion at bench is whether a state may file, post-petition, against the debtor, a “notice of assessment/determination,” without first seeking relief from the automatic stay of 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”). On the basis of the reasons expressed below, we conclude that the automatic stay ...
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MEMORANDUM At issue is the extent to which a state court judgment in favor of the plaintiffs operates under the principles of collateral estoppel to preclude the litigation in this court of issues relevant to a dischargeability determination under § 523(a)(2)(A) of the Bankruptcy Code. 1 Plaintiffs have moved *352 for summary judgment based upon the state court jud...
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MEMORANDUM OPINION In this adversary proceeding to collect upon a promissory note, the defendant seeks to have the claim embodied in the note disallowed under 11 U.S.C. § 502(b)(1) under the state law theories of illegality, duress, absence of consideration and discharge of a surety due to the release of the principal obligor. Defendant requested a trial by jury which was denied because t...
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OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT In this Chapter 7 bankruptcy, creditor, Commercial Credit Corporation (Commercial) filed a complaint to determine the dis-chargeability of a debt owed it by Michael H. Hussey and Janet E. Hussey, debtors. Commercial alleged in its complaint that debtors had obtained money from it by means of false pretenses, false representations,...
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ORDER ON EXEMPTIONS AND APPORTIONMENT OF LIENS The trustee's objection (C.P. No. 90) to the debtor’s claim of exemptions was heard *7on February 18. At the hearing, the trustee and the debtor agreed that a related issue, the apportionment of liens, had also been carried over for consideration with the objection to exemptions, although this related matter was not noted on the calendar. At the parti...
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MEMORANDUM AND ORDER This matter comes before the Court on the motion of Lawndale Trust and Savings Bank (“Lawndale”) to dismiss the debtor’s Chapter 13 petition or in the alternative to vacate the automatic stay. Lawndale also seeks costs and attorneys’ fees pursuant to Federal Rule of Civil Procedure 11 and Bankruptcy Rule 9011. Lawndale’s motion is premised on the fact that this is the deb...
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MEMORANDUM OPINION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to ...
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MEMORANDUM ON FEES Recently, in this Circuit and particularly in this District, an increased concern has been shown by the Courts in the manner in which professionals detail the time for which they seek compensation. Bankruptcy Rule 2016 provides only the most general guidance in simply requiring a “detailed statement of services rendered, time expended.” As the cases become more com...
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This matter was heard as a final eviden-tiary hearing on the motion for relief filed by Alexander & Alexander, Inc. Hearing date was December 18, 1985. Appearing on behalf of the moving party, Alexander & Alexander, Inc., was Robert F. Craig of Kennedy, Holland, DeLacy & Svoboda, Omaha, Nebraska. Frank M. Schepers ap *84 peared with Mr. Craig on the trial brief and the s...
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MEMORANDUM AND ORDER Before the court is the motion of First Federal Savings & Loan Association of South Carolina (First Federal) a creditor, to dismiss this case pursuant to 11 U.S.C. § 1307(c) 1 . The United States of America, acting on behalf of the Farmers Home Administration (FmHA), and the Chapter 13 trustee join in the motion. FACTS The debtors have a history i...
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MEMORANDUM Plaintiff seeks a determination of nondis-chargeability of a debt in the amount of $10,406.95, alleging that the debtor obtained a loan by false pretenses, a false representation, or actual fraud. 11 U.S.C. § 523(a)(2)(A) (West Supp.1985). Trial was held October 30-31, 1985. I In 1982, for a short period of time, Ralph Tallent and the debtor, Robert Coppock, were engaged in buying and r...
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DECISION OF OBJECTIONS TO DISCHARGE OF DEBTOR I FINDINGS OF FACT1 1. Grizzly Plumbing & Heating, Inc. is a debtor in a Chapter 7 case no. 84-04703-Hl-4 currently pending in the United States Bankruptcy Court, Southern District of Texas, Houston Division. 2. From March 20, 1984 to September 12, 1984, Floyd Bridgewater (“Debtor”) owned more than twenty percent (20%) of the issued and outstanding st...
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MEMORANDUM OPINION The Peoples Bank & Trust of Alpena filed this involuntary petition against Bette Mae Lough pursuant to 11 U.S.C. § 303 arising from two debts which the bank claims that Mrs. Lough owes to it. For the reasons stated in this memorandum opinion, 1 the Court concludes that there is a bona fide dispute concerning the bank’s claim, and that therefore the involuntar...
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DECISION AND ORDER This matter came to be considered upon the Application of Feme Steckler for an order pursuant to Bankruptcy Rule 8002(c) extending Steckler’s time to file a Notice of Appeal of this court’s decision of January 9,1986. The court hereby denies Steckler’s application because Steckler has failed to show excusable neglect that constitutes cause to extend time. FACTS ...
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OPINION ON COMPLAINT TO SELL REAL ESTATE The trustee in this case filed a complaint seeking to sell real estate free and clear of liens. Additionally, the trustee sought turn over of funds held in a checking account. Defendants Wilbur Spigener and AmSouth Bank, N.A., filed answers. The issue as to the checking account funds was *61settled among all parties. Further, defendant Spigener makes no cla...
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MEMORANDUM OPINION Background On August 29, 1985, the Court held a pre-trial conference regarding the objections to confirmation filed by A.L. Tenney, the trustee; Charles F. Curry; and Southern Investment Company and at the same time held a hearing regarding the counterclaim filed by debtor on September 25, 1985. In the counterclaim, as amended by his post-trial brief, the debtor alleges (1) t...
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*733 MEMORANDUM OF DECISION Plaza Bonita Developers, landlord of Ramon and Xóchitl Galvan doing business as Casa Bonita (“Galvan”) has moved for an order compelling Donald Sutherland (“Sutherland”), the Chapter 7 trustee, to immediately pay rent and for other relief. Galvan filed a Chapter 7 proceeding on June 7, 1985. On June 12, 1985, Sutherland was appointed interim trustee. On July 9, 1...
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ORDER ON DEFENDANTS’ MOTION TO QUASH SERVICE OF PROCESS AND MOTION TO DISMISS This complaint filed by a liquidating trustee appointed by a bankruptcy plan of *722reorganization seeks avoidance of several transfers aggregating $1.7 million made by the bankruptcy debtor to these two Colombian corporations upon the ground that they were fraudulent under 11 U.S.C. § 548(a)(1) or (2), the Bankruptcy C...
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MEMORANDUM AND ORDER This matter comes to be heard on the motion of First National Bank of Joliet (“Bank”) to terminate or modify the automatic stay pursuant to 11 U.S.C. § 362 and to prevent the use of certain cash collateral pursuant to 11 U.S.C. § 363. On January *735 22, 1985, Anthony Peter Lorenz, Joseph Andrew Lorenz, and Robert Dean Lorenz, a partnership d/b/a Lorenz Brothers Farm (“de...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This cause comes on for hearing on the 17th day of January, 1986, on the Motion for Appointment of Trustee under Section 1104 filed by Mechanical Suppliers, Inc. on October 29, 1985. A hearing was held pursuant to notice of December 30, 1985 to all creditors and parties in interest. On the 14th day of January, 1986, Powell-Stephenson Lumber C...
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MEMORANDUM OPINION This matter was tried on stipulation as to the facts and memorandums of law submitted by the respective parties without the taking of any further testimony or evidence. The question at issue is whether the plaintiff trustee in bankruptcy can succeed to the debtor’s rights to receive certain corn in storage under a federal agricultural program known as the Payment-In-Kin...
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OPINION AND ORDER This matter came before me on the debtors’ Motion for Contempt Judgment. The debtors seek to hold the Internal Revenue Service [IRS] in contempt of court for the assessment of and attempt to collect interest on its claim outside these Chapter 13 proceedings. The following shall constitute the findings and conclusions of this court. The debtors herein filed a petitio...
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OPINION This matter comes before the Court on cross-motions for summary judgment (Bankr.R. 7056, F.R. Civ. P 56) requesting that the Court determine whether or not the creditor, Lever Brothers, is entitled to set off against a claim by the debtor in the total amount of $16,981.90 against the admitted claim of the debtor against Lever Brothers of $8,160.38. The facts have been stipulated as follow...
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OPINION AND ORDER This matter came on to be heard upon the motion of the Trustee, Philip R. Joel-son, to dismiss the voluntary Chapter 7 petition of the Debtor, Commercial Oil Service, Inc. or to suspend all proceedings in this case, and also upon the motion of the State of Ohio to remand its action against the Debtor to enforce the State’s environmental protection laws which was removed by the...
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ORDER IMPOSING SANCTIONS On November 8, 1985, plaintiff moved for the imposition of sanctions against defendants Sally Kirshenbaum and Kirshenb-aum Investment Company, Inc. for failure to comply with discovery orders. On De *311 cember 2, 1985, defendants filed an objection to said motion, which plaintiff moved to strike on the basis that the objection was filed out-of-time. Because of defe...
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MEMORANDUM OPINION AND ORDER REGARDING APPLICABILITY OF 11 U.S.C. § 1111(b)(1)(A) TO UN-DERSECURED, NON-RECOURSE DEFICIENCY CLAIMS Between March 25, 1985 and May 31, 1985, ninety-five related general and limited partnerships (“the Project Partnerships” or “Debtors”) filed voluntary petitions in this Court seeking protection under Chapter 11 of the Bankruptcy Code. Each partnership owned e...
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Memorandum Decision In the context of a motion for extraordinary relief, this Court is presented with the *982 so-called banker’s dilemma. The bank, a creditor of this Chapter 11 debtor’s, has moved ex parte for relief from stay and for an order prohibiting the use of cash collateral. The bank asks us to prohibit the debtor from drawing on its checking accounts with the bank,...
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FINDINGS AND ORDER This matter is before the Court on motions of DSB and Melendy to dismiss debt- or’s voluntary Chapter 11 petition. Because we find that movants have shown that: (1) payments have been diverted to another entity; (2) debtor has not acted in good faith; (3) the estate continues to diminish; and (4) there is no likelihood the debtor will be able to successfully rehabilitat...
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Crest Mirror and Door Company, the debtor in possession, appeals an order denying its application to employ and pay a retainer to the Greeley Consultant Group, a financial consulting service. This appeal raises two issues. May the bankruptcy court require a noticed hearing on an application to employ a professional under 11 U.S.C. § 327(a)? Does 11 U.S.C. § 327(a) permit the bankruptcy cou...
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*307FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration is a Complaint filed by Chase Manhattan Bank, N.A., the Plaintiff in the above-styled adversary proceeding, which seeks an order from this Court declaring certain debts owed to Chase Manhattan Bank by the Debtor to be non-dis-chargeable pursuant to § 523(a)(2)(A) of the Bankr...
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ORDER The plaintiff/debtor, Rosetta M. Wright (“Wright”), initiated this adversary proceeding on March 25, 1985, by filing a complaint to determine the dischargeability of a debt. The debt in question is the result of a default judgment obtained by F.C. McIntyre (“McIntyre”) against Wright in the amount of $326,000.00 plus costs. The judgment was entered on August 8, 1979 in the Superior ...
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MEMORANDUM OPINION The extent of divorce-related bankruptcy litigation between this debtor and his former spouse surpasses any we have seen. 1 Today we consider the debtor’s “motion to amend, vacate, set aside [our order of September 30, 1985] and grant new trial”. While most motions for reconsideration are dealt with in summary fashion, this one raises several issues which should be addresse...
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MEMORANDUM RULING On January 31, 1986, this Court ruled from Chambers denying the debtor’s Motion to Convert their Chapter 7 Liquidation case to a Chapter 11 Reorganization. This memorandum is to provide additional reasons for our Judgment. This attempt to convert was made the day that the majority of the assets of this corporation were to be sold at a public Trustee’s Auction. The Court agrees w...
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MEMORANDUM DECISION This proceeding raises squarely the issue of the effect of a tardy filing of a proof of claim by the Internal Revenue Service in a chapter 13 case. Upon the stipulated facts, the court concludes that the claim must be disallowed and upon successful completion of the debtors’ confirmed plan the claim will be discharged. *76 The debtors filed their chapter ...
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DECISION & ORDER On November 20, 1985, Robert Buchaki-an (hereinafter “landlord”) moved for an order compelling the debtor to assume or reject the commercial lease in question under 11 U.S.C. § 365(d)(2), or, in the alternative, for an order directing the debtor to pay its post-petition rent obligations pursuant to 11 U.S.C. § 365(d)(3). 1 The debtor has cross-moved for an orde...
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OPINION The matter for decision in the case at bench is whether a chapter 13 debtor is entitled to a permanent injunction prohibiting the State Transportation Authority from revoking the debtor’s driver’s license due to a minor, prepetition traffic infraction. The debtor did not appear in traffic court to dispute his liability, did not pay the fine he was assessed, but listed the amount o...
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OPINION Where a debtor/plaintiff has removed a state court suit to this court pursuant to 28 U.S.C. § 1452, the question confronting us is whether we should grant the defendant’s motion to remand the action to the state court in light of the fact that the debtor would have us review a decision of the state court judge in lieu of the state appellate court. We conclude that the d...
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DECISION OF INTERPLEADER ACTION The Court is fully aware that the trial court may not blindly accept the proposed findings of fact and conclusions of law of the prevailing party. United States v. El Paso Natural Gas, 376 U.S. 651, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964). However, when the proposed findings are consistent with the evidence and the conclusions are agreeable to t...
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MEMORANDUM DECISION ON EMERGENCY MOTION TO DISQUALIFY The background of this case is contained in a number of decisions in the main case file on this matter. Familiarity therewith is assumed. Movant Revie quite properly characterizes himself as one who has been the subject of a finding of lack of credibility by the Court following several days of courtroom testimony in the main case ...
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MEMORANDUM OPINION Jimmy Baugh (Jimmy) filed a voluntary petition for relief under the provisions of Chapter 11 on June 20, 1984. On February 20, 1985, Neale M. Bearden (Neale) filed a complaint against Jimmy and Marion Baugh (Marion), Jimmy’s father, to set aside an alleged fraudulent transfer of cash from Jimmy to Marion in the sum of $86,251.48. The transfer allegedly occurred in December 19...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for trial on February 10, 1986 upon the complaint of Sea West Federal Credit Union, f/d/b/a Alameda Coast Guard Federal Credit Union, seeking to deny the discharge of debtor Harleigh S. Peacock, III, pursuant to 11 U.S.C. § 523(a)(2)(A) and § 523(a)(2)(C). Counsel for the debtor announced at pre-trial conference that Harleigh...
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MEMORANDUM OPINION AND ORDER ON MOTION OF ATTORNEY GENERAL TO MODIFY STAY This cause comes before the Court on the motion of the Attorney General of the State of Illinois (“Movant”) to modify the automatic stay. For the reasons stated below, the motion is granted in part and denied in part. Motion and Related Facts Harold Liss (“debtor”) filed a voluntary petition under Chap...
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ORDER This matter comes before the Court on the Debtor, Judith Higbee’s, Motion to voluntarily dismiss her Chapter 7 proceeding. The facts are uncontested. On November 13, 1985, the Debtors, Chester L. Higbee and Judith Higbee, filed their Chapter 7 proceeding. At the time they filed their proceeding, the Debtor, Judith Higbee, had a possible personal injury claim. The Debtors and their attor...
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MEMORANDUM OPINION The question before the court is the trustee’s objection to the debtor’s claim of exemption under Iowa Code § 627.6(9)(e) of his “Keogh Plan” retirement rights valued at $36,000.00. More precisely, the debtor has scheduled as an asset under schedule B-2(v) his Keogh Plan as “Equitable Or Future Interest, Life Estates And Rights Or Powers Exercisable Before The Benefit O...
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MEMORANDUM OPINION I.Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bankruptcy ...
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64 B.R. 553 (1986) In the Matter of Jarvis Eugene FERGUSON and Doris Lois Ferguson, Debtors. Bankruptcy No. 85-02039-SJ-11. United States Bankruptcy Court, W.D. Missouri, St. Joseph Division. February 21, 1986. *554 Mark G. Stingley, Utz, Litvak, Thackery & Taylor, St. Joseph, Mo., for debtors. ORDER DECLINING TO APPOINT WESTERGREN, HAUPTMAN, O'BRIEN AND WOLF AS COUNSEL FOR DEBTORS AND REAFFI...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT FOR PLAINTIFF AND AGAINST DEFENDANT KEVIN K. KORAN IN THE SUM OF $19,675.00 AND OTHERWISE DENYING PLAINTIFF’S PRAYER FOR RELIEF AGAINST OTHER NAMED DEFENDANTS Plaintiff, a creditor of the debtor entity holding a valid and perfected security interest in a portion of the accounts receivable of the debtor, seeks to recover the value of...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Philip A. Riposo (“Debtor”) moves the Court for dismissal of the complaint of Prudential-Bache Securities, Inc. (“Plaintiff”) due to improper service. The Debtor further moves for summary judgment on that portion of Plaintiff’s complaint objecting to his discharge. Plaintiff cross-moves for summary judgment on its complai...
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ORDER Before the Court is the motion of Defendant, United States of America, to dismiss Count I of a complaint filed by Debt- or, Amtol Corporation, and Robert A. Leed-ers (Leeders), who seek an injunction against the Internal Revenue Service (IRS). The parties submitted the matter on briefs. On consideration the Court finds: Count I of the complaint requests that the IRS be enjoined...
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MEMORANDUM DECISION The debtors filed their petition in bankruptcy under Chapter 11 on February 23, 1984. The debtors are farmers and ranchers doing business on a 16,703-acre agricultural operation near Pierre, South Dakota. Approximately 12,250 acres of the debtors’ land are under irrigation provided by 12V2 miles of canals, over 50 miles of underground pipe, and 92 pivot systems which d...
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MEMORANDUM DECISION AND ORDER Bell, Metzner & Gierhart, S.C., the debt- or’s general counsel in this chapter 11 case, *99 has applied for interim compensation pursuant to 11 U.S.C. § 329 and Bankruptcy Rule 2016(b) covering the period August 13, 1984, through April 30, 1985. A total of $126,533.00 in fees and $4,837.93 in disbursements is requested. The firm has received a re...
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MEMORANDUM DECISION and ORDER The matter before the Court is the Motion of Kimmel Construction, Inc. (Kimmel) for an order allowing administrative claim pursuant to Bankruptcy Code § 503(b). A final hearing on the merits was conducted on November 19, 1985, and the issues submitted to the Court for decision. For the reasons set forth below, Kimmel’s Motion is denied. I The debtor...
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MEMORANDUM DECISION AND ORDER The trustee, Jeri Coppa, objected to the debtors’ claim of exemption in “tanning beds” and other business equipment to $9,000.00 in value. The debtors base their claim on Nev.Rev.Stat. 21.090(l)(d), the “tools of trade” exemption, and have doubled the $4,500.00 statutory allowance because this is a joint case, having been filed by husband and wife. The trustee’s ob...
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Decision and Order on Motion to Reargue An adversary proceeding seeking turnover of property does not often yield as many interesting facts as have surfaced in the instant chapter 11 case. Here, the tenant under a lease filed two sequential chapter 11 petitions. The lease in at least some form survived the first case by fortuitous operation of law; in the second case, the former debto...
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*954 DECISION AND ORDER GRANTING DEBTOR-MOVANTS’ MOTION TO AVOID LIEN This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B) and (K), in which the debtor-movants, Thomas G. and Elke G. Anderson, seek to avoid the judicial liens obtained by creditor-respondents, Dayton Plumbi...
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ORDER GRANTING DEBTOR’S MOTION FOR PRELIMINARY INJUNCTION AND ENJOINING DEFENDANT This matter came on for hearing on January 21, 1986, on the motion of debtor, A. Dan Chisholm, Inc., for a preliminary injunction enjoining defendant, B.P. Oil, Inc., Gulf Products Division, from taking any action to terminate its leased franchise pending trial of the issues on merits. Debtor is in possession of...
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ORDER Kenneth Henry Ohning and Karen Jean Ohning are chapter 13 debtors who have brought an adversary proceeding due to Schneider National Transcontinental, Inc.’s (Schneider) collection of a pre-petition debt from property of the estate which consists of Ohnings’ post-petition earnings. The matter is before the court on cross motions for summary judgment; it was taken under advisement October ...
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60 B.R. 96 (1986) In re Eric Daniel JONES, Debtor. Bankruptcy No. 3-85-01015. United States Bankruptcy Court, W.D. Kentucky. February 14, 1986. *97 W. Craig Aulenbach, Louisville, Ky., for debtor. Andrew Hyman, Louisville, Ky., for creditor. John Wilson, Louisville, Ky., Trustee. OPINION-ORDER G. WILLIAM BROWN, Bankruptcy Judge. This matter comes before the court pursuant to a "STATEMENT" filed ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DENYING COMPLAINT FOR A DECREE OF NONDISCHARGEABILITY This is an action for a decree of nondis-chargeability of an indebtedness allegedly *15 brought into being by a false financial statement within the meaning of section 528(a)(2) of the Bankruptcy Code. After joinder of the issues by the pleadings, the action came on for...
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DECISION & ORDER On December 3, 1985, Kravco, Inc. (hereinafter “landlord”) moved for an order granting relief from the automatic stay, pursuant to 11 U.S.C. § 362, to allow the landlord to pursue eviction proceedings against the debtor in State court. The landlord alleges that the lease in question was terminated by its terms prior to the commencement of this case. The debtor asserts tha...
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MEMORANDUM AND ORDER This matter is before the Court to determine whether the outstanding commodity trading account balance of the Debtor/Defendant, Brent T. Jenkins (JENKINS), with Plaintiff, Ray E. Friedman and Company (REFCO), is a non-dischargeable debt pursuant to section 523(c), and more specifically section 523(a)(2)(A), of the Bankruptcy Code. By Complaint filed August 1, 1985, ...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the motion of Airlines Reporting Corporation (ARC) for the Court to determine whether the automatic stay provisions of 11 U.S.C. 362 are applicable and for an order granting relief from stay to allow the movant to proceed with foreclosure proceedings on a residence co-occupied by the Debtor, Warren Lambert. Said property i...
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MEMORANDUM DECISION AND ORDER This proceeding was instituted by the debtor in possession, R.C.R. Corporation, Inc. (“RCR”), under section 544 of the Bankruptcy Code to avoid its mortgage and real estate security agreement with the defendant Bank of Middleton (“the bank”). The parties have stipulated that no factual issues are in dispute and that this matter may be treated as on cross-motions for ...
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OPINION This cause is before the Court on the Debtors’ complaint and subsequent motion for summary judgment contesting the Defendant’s setoff of the Debtors’ credit union deposit. Jurisdiction lies pursuant to 28 U.S.C. § 1334. This matter is a core proceeding. 28 U.S.C. § 157(b)(2)(E). The facts are uncontested but incomplete. On October 2, 1985, the Debtors had $207.00 on deposit w...
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DECISION ON ORDER DETERMINING DISCHARGEABILITY The creditor, Mason Lumber Company, filed this adversary proceeding to determine the dischargeability of a debt under 11 U.S.C. § 523. Trial was held on January 27, 1987, at which the plaintiff and the defendant debtor, each represented by counsel, were.present and adduced testimony. The matter was then taken under advisement. This is a ...
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FINDINGS, CONCLUSIONS AND ORDER ON COMPLAINT In this adversary proceeding, the plaintiff Armstrong Rubber Company (Armstrong) seeks an exception to discharge pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(2)(B), (a)(4) and (a)(6). Armstrong asserts that the debt owed to it by debtor Fred H. Anzman is non-dischargeable because it was fraudulently procured by the making of a false financial stat...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case and the matter under consideration is a Motion for Summary Judgment filed by Citibank in the above-styled adversary proceeding. It is the contention of the Citibank that there are no genuine issues of material fact and that Citibank is entitled to a judgment as a matter of law. Citibank’s claim is based on the proposition that ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, and ORDER Granting § 523(a)(8) Complaint The matter before the Court is the complaint of Larry E. Zobel and Deidra Ann Zobel to determine dischargeability of Dei-dra’s 1 guaranteed student loan debt pursuant to 11 U.S.C. § 523(a)(8)(B). The Court, having considered the evidence adduced at trial, and the briefs of the parties, now makes the ...
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MEMORANDUM-OPINION This matter comes before this Court on cross motions for Summary Judgment on the Complaint of the United States of America, U.S. Army Finance and Accounting Center (“Army”) to determine dis-chargeability of advances of pay made by the Army to the defendants herein, and on defendants’ Counterclaims. These two Adversary Proceedings were consolidated inasmuch as they invol...
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*741 OPINION The above matter comes before the Court on the complaint of Adelyn Firtel seeking to compel the Debtor, L. Andrew Bernheim, to turn over to the Trustee, San-to Lalomia, certain monies received by him since the commencement of the original case (In the Matter of L. Andrew Bernheim, Debtor, Docket No. 82-06931). Various submissions were made by way of Affida...
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DECISION AND ORDER ON MOTION FOR A STAY PENDING APPEAL Beker Industries Corp. and Beker Phosphate Corporation (the “Debtors” or “Beker”) have filed a notice of appeal to the United States District Court for the Southern District of New York from the decision and order dated February 6, 1986, 57 B.R. 611, as corrected by an errata order dated February 11, 1986 (familiarity with which is as...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Amended Complaint filed by the Plain *554 tiff-Debtor in the above entitled adversary action. The original Complaint filed in this case sought to enjoin the Defendant from proceeding with a Contempt action that she had filed against the Debtor in the Allen County Court of Common Pleas. In that action, the Defendant sought...
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60 B.R. 89 (1986) In re Dale Alan WIGGINS, Debtor. Bankruptcy No. 85-00903. United States Bankruptcy Court, N.D. Ohio, W.D. February 13, 1986. *90 Robert T. Kelsey, Sandusky, Ohio, for debtor. Philip R. Joelson, Toledo, Ohio, for Trustee. MEMORANDUM OPINION AND ORDER RICHARD L. SPEER, Bankruptcy Judge. This cause comes before the Court upon the Trustee's Objection to the Debtor's Claim of Exempt...
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OPINION The matter for decision, arising under a bank’s motion for relief from the automatic stay of 11 U.S.C. § 362(a) of the Bankruptcy Code (“the Code”), is whether the automatic stay bars the bank’s foreclosure of a mortgage on a parcel of realty on which a debtor resides, although legal title to the property is held by the debtor’s spouse. On the basis of the reasoning set forth belo...
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OPINION The question for decision in the case before us is whether we should grant a creditor’s motion to dismiss a debtor’s chapter 13 case on the basis of 11 U.S.C. § 109(f) of the Bankruptcy Code (“the Code”). Due to the lack of proof, we will deny the creditor’s motion to dismiss. As best we can determine from the limited record before us, we summarize the facts of this case as f...
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MEMORANDUM OPINION A major purpose of the Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101-151326 (“the Code”) is to give the honest debtor a fresh start. The question presented here is whether the honest debtor can also obtain a clean credit slate if he voluntarily satisfies obligations previously discharged in bankruptcy. Larry Bruce Whitener (“Whitener”) filed a petition for relief under ch...
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DECISION The court is presented with the issue of whether to return to Waupaca County Circuit Court, a Wisconsin state court, a pending mortgage foreclosure action which was previously commenced in that court by Marine Bank Appleton, N.A. f/k/a Firstar Bank, National Association (“Marine Bank”) against Mill-Craft Building Systems, Inc. (“debtor”) and eight other non-debtor defendants. The...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR AWARD OF FEES AND COSTS AGAINST DEFENSE COUNSEL Debtor moves for an award of attorneys fees and costs against defense counsel under Rule 11 F.R.Civ.P. and 28 U.S.C. § 1927. For reasons set forth below that motion is allowed. The motion arose out of the. following case history: The defense moved to dismiss this action brought by debtor. B...
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MEMORANDUM OPINION FACTS The defendants filed a motion to dismiss the plaintiffs complaint objecting to discharge under 11 U.S.C. § 727. The defendants assert and the record confirms that the plaintiffs complaint was not filed nor was an extension of time obtained within 60 days of the first date set for the meeting of creditors pursuant to 11 U.S.C. § 341(a). The defendant debtors contend th...
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DECISION DENYING PLAINTIFF’S COMPLAINT PURSUANT TO 11 U.S.C. § 523(a)(2)(A) AND (a)(6) This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(I), in which the plaintiffs, Carlton E. and Arline Z. Shafer, seek to have a debt owed to them by the defendant-debtor, William R. Wintrow, Jr. declar...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion for Relief from Stay and To Abandon Real Estate filed by Manufacturers Hanover Mortgage and Robert J. Af-feldt. The parties have agreed that the issues addressed by this Motion are primarily issues of law which may be decided by the Court based upon the arguments asserted at the Hearing. The Court has reviewed those ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Relief From Stay and Abandonment of Property filed by Community First Bank, N.A. (hereinafter Community). The Court has conducted a Hearing on this Motion, at which the parties were afforded the opportunity to present any evidence and arguments they wished the Court to consider. The Court has reviewed the evidenc...
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MEMORANDUM OPINION Presently before this Court is the Defendant’s Renewed Motion to Dismiss this case as being brought in an inappropriate forum pursuant to a forum selection clause. This matter is before this Court on direction from the District Court. This Court is required to determine if this action constitutes a core proceeding under 28 U.S.C. § 157. This Court finds that: (1) this a...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO CLAIMS FOR ACCRUED SICK LEAVE FINDINGS OF UNCONTESTED FACT 1. On September 24, 1983, Continental Air Lines, Inc. and Texas International Airlines, Inc. filed petitions for reorganization under Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 1101, et seq. Upon filing the bankruptcy petition, Continental temporarily suspended all d...
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MEMORANDUM ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT This adversary proceeding was commenced by debtor, John Logan McCall, against Barnett Bank of Columbia County to determine the validity, priority, and extent of the interest claimed by Barnett in certain real property located in Columbia County, Florida. The matter before the Court is defendant Barnett’s motion for final su...
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ORDER ON OBJECTION TO CLAIM OF HELEN J. WOOD THE MATTER under consideration in this Chapter 11 case is an Objection to the Claim of Helen J. Wood (Wood) filed by the Debtor, Bartley L. Mickler (Debtor). The Debtor contends that the claim is not based on a valid and enforceable debt against the Debtor and, therefore, should be disallowed. The facts relevant to a resolution of this controversy are ...
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MEMORANDUM DECISION The trustee in this chapter 7 case seeks a turnover order under 11 U.S.C. § 542 requiring the debtor Thomas Forbes to pay the proceeds received from settlement of his claim against the City of Lake Worth, and the trustee seeks a money judgment against the debtor/defendant in the amount of $92,500. The defendant has answered, denying that he owes anything. Defendant asserts a...
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MEMORANDUM DECISION The Motion of Phillip & Kelley, Ltd. to Enforce Attorney’s Lien requires the Court to determine whether the movant’s statutory attorney’s lien is avoidable by the bankruptcy trustee. The trustee’s Petition to Abandon Balance of Claim of Debtor requires the Court to determine whether the trustee may abandon a cause of action after a partial settlement has been reached. ...
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DECISION AND ORDER DENYING RELIEF FROM AUTOMATIC STAY Carpenter Plastering Co. (“Carpenter”) and Joseph E. and Rita Kowalski (“Kowal-ski”), the moving parties, have brought two separate but related automatic stay motions before this court. Their legal focus is a relatively recent and controversial decision of the Court of Appeals for the Third Circuit. See In re M. Frenville Co., In...
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MEMORANDUM AND DECISION The debtors brought a motion to avoid the fixing of a judicial lien under the authority of 11 U.S.C. § 522(f) before this Court on December 2, 1985. The motion specifically seeks to avoid a $139,469.77 judgment lien by Dow Chemical Company against the debtors which attached to the debtors’ personal residence. Dow objects to the avoidance of the lien for any amount ...
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MEMORANDUM OPINION On December 5, 1985, Eva-Maria Mann, Wasco County and Anna K. Meyers filed an involuntary Chapter 7 petition against Rajneesh Neo-Sannyas International Commune. On December 10,1985, Glenda Harvey and Robert Havey joined as petitioning creditors. On December 23, 1985, Petitioner Mann filed a motion to dismiss the involuntary petition. The motion to dismiss requested court ap...
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MEMORANDUM OPINION On July 31, 1984, H. Huntly Hersch filed a petition for relief under Chapter 7 of the Bankruptcy Reform Act of 1978 (“the Code”), and listed as exempt from the bankruptcy estate his interest in a testamentary trust created by his deceased father. 1 Warrenton Production Credit Association (“Warrenton”), taking issue with the debtor’s characterization of the tr...
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OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT In this Chapter 13 case, debtor filed a complaint to determine the dischargeability of a debt for child support which was assigned by debtor’s former wife to Santa Clara County, State of California and Family Support Trustee of Santa Clara County, California prior to August 13, 1981. Trial was held February 5, 1986, in Opeli-ka, Alabama be...
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MEMORANDUM This matter came before the Court for a pre-trial conference on the trustee’s Complaint to avoid the attachment obtained by International Multifoods Corporation hereinafter (“International” or “the defendant”), pursuant to 11 U.S.C. § 547(b). The parties stipulated to the filing of an agreed statement of facts and accompanying mem-oranda of law. Based upon a review of the stipu...
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MEMORANDUM DECISION The trustee’s motion for turnover of funds requires the Court to determine what interest, if any, the debtor has in a personal injury judgment rendered post petition. The facts are undisputed. Debtor Patricia Richards was injured in an automobile accident with one Theodore Wisler in Las Vegas, Nevada in May of 1980. In February, 1981, the debtor filed a personal i...
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MEMORANDUM DECISION This matter is before the Court on the United States Trustee’s objection to the *666 debtors’ application for leave to retain professional counsel. Oral arguments were heard by the Court in Pierre, South Dakota, on July 10, 1985, and the parties later submitted written memoranda. The issue is whether Donald E. Covey, a nephew of the debtors, is disqualified under the Cod...
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DECISION ON MOTION FOR RECONSIDERATION On August 15, 1985, an order was entered denying the debtor’s Motion for Continuance and dismissing the debtor’s Application to Redeem Tangible Personal Property from Brooksfield Bank. After considering the arguments in the Debtor’s Motion for Reconsideration, and for the following reasons, 1 we affirm our August 15 order. In a letter...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether Ashland Finance Company and its surety should be released from liability and obligation on a bond. The Debtor, Thomas W. Henderson, filed a Chapter XI petition in this Court on February 1, 1979, later converted to Chapter XIII and his wife, Ida I. Henderson, was added as a co-debtor. On October 13, 1983, 40 B.R. ...
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OPINION ENFORCEMENT OF 11 U.S.C. § 1325(c) UNDER THE SUPREMACY CLAUSE OF THE UNITED STATES’ CONSTITUTION The debtors, Gerald and Suzanne Jenkins, have brought this motion to compel the Michigan Employment Security Commission (MESC) to pay over a portion of their unemployment benefits directly to the Chapter 13 Trustee, Mr. Joseph Chrystler. The MESC has opposed this motion arguing th...
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MEMORANDUM OPINION The matter being considered here is the adversary complaint of the Shelbina Mercantile Bank to determine the discharge-ability of certain debts owed by Michael R. and Louis M. Durbin. The parties appeared in person and by counsel at the trial on January 13, 1986, and presented testimony, evidence, and oral argument upon the record. The trial was concluded on the same date and...
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MEMORANDUM OPINION AND ORDER On December 5, 1985, an Involuntary Petition was filed by Master Feeds, Inc.; Thunderbird Ranch, Inc.; M & H Farms, *650 Inc.; David Rock; and Purina Mills, Inc. requesting that the Court order Chapter 7 relief against the alleged Debtor, Dakota Crackin’, Inc. In its Answer, Dakota Crac-kin’ denies the nature and amount of the Petitioners’ claims ...
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ORDER In the within case the United States of America, Department of the Treasury, Internal Revenue Service (IRS) filed a supplemental claim for $281,614.45 to which the Debtor, The Overly-Hautz Company (OHC) has objected. The parties submitted the matter on stipulations, oral argument and briefs. The parties agreed to the following stipulation of facts: “1. This Court has subje...
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OPINION The matter for resolution in the case before us is whether the debtor has lodged a valid objection to a former employee’s proof of claim in which the employee seeks vacation and severance pay. On the basis of the reasons outlined below we will sustain the objection in part and reduce the claim from $10,764.67 to $7,783.16. The facts of this controversy are as follows: 1 Through its preside...
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OPINION The legal point we are asked to decide in this case is whether under a chapter 13 plan a debtor must pay “interest” on ar-rearages arising from a secured debt to the extent that those arrearages are attributable to interest on the principal debt when the loan agreement does not provide for such interest. The issue arises on the debt- or’s objection to a proof of claim. Under the reasoni...
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OPINION The matter for resolution in the case before us is whether under a chapter 13 plan a debtor must pay interest on arrear-ages arising from a secured debt, even though the debt is secured by a home mortgage. For the reasons outlined herein, we hold that the interest must be paid. The facts of this controversy are as follows: 1 Several years ago the debtor granted a m...
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DECISION DENYING MOTION TO REOPEN AND DECLARING DEBTS NONDISCHARGEABLE On July 15, 1985, Robert E. Gray filed a motion to reopen his bankruptcy case for *928 the purpose of amending Schedule A-3 1 to include two unsecured creditors, John DiStefano and Thomas Scotti. DiStefano and Scotti object to the reopening, and to being added as creditors. After hearing on Dece...
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At issue is the dischargeability of a debt allegedly arising from the breach of a fiduciary obligation. 11 U.S.C.A. § 523(a)(4) (West 1979). The action was instituted by Moss W. Yater, the son and executor of decedent Moss Yater. Defendant denies owing the debt plaintiff Yater contends is nondischargeable. 1 I In March 1980, Moss Yater was indebted to the Pioneer Bank of Chatt...
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MEMORANDUM The plaintiff trustee contends a payment in the amount of $15,000.00 made to defendant by debtor is an avoidable preferential transfer. 11 U.S.C.A. § 547(b) (West 1979 & Supp.1985). I Proof was submitted by way of stipulations, and by testimony of James Finnell, president and general manager of defendant Ed’s Supply Company; debtor Joseph Michael White, the sole propr...
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MEMORANDUM On December 23, 1985, this court entered judgment for the plaintiff, Production Steel, Inc., in this adversary proceeding to recover a preference. The court reserved the question whether plaintiff was entitled to prejudgment interest on the amount of its judgment. Having reviewed the briefs of the parties and relevant case law, I find that the plaintiff is entitled to prejudgme...
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DECISION This case was tried on October 22, 1985 upon the complaint of William and Daphne Taylor (“plaintiffs”) seeking a determination that damages to their home resulting from certain work performed by the debt- or, William Otto Kaufmann (“defendant”), be declared non-dischargeable pursuant to either § 523(a)(2)(A) or § 523(a)(6) of the Bankruptcy Code. 1 FACTS On June 1,1980, the parti...
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I On August 28, 1984, the appellants Walter T. Hanson, Donald F. Rau and Ross H. Buchwalter (“Appellants”) filed a complaint naming the Debtor, Curry and Soren-son, Inc. (“Debtor”) and its President Kenneth R. Finn (“Finn”) as defendants. In this complaint the Appellants seek to void the Debtor's issuance of 75,000 shares of its capital stock to Finn, claiming it was a fraudulent transfer ...
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ORDER DISAPPROVING OBJECTION TO CLAIM On January 7, 1986, this cause came on to be heard by this court on debtor’s objection (C.P. No. 41) to the claim of Isabel R. Radin, his former wife. At issue are payments due to creditor-spouse stemming from a Final Judgment of Dissolution of Marriage (Exhibit No. 2). Counsel for the debtor submits that a portion of the claim, based on the aforesaid jud...
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MEMORANDUM AND ORDER The adversary defendant, Ford Motor Credit Co. (“FMC”), has filed a motion requesting the Court to reconsider its Memorandum and Order of October 18, 1985, In re Johnson, 53 B.R. 919 (Bankr.N.D.Ill.1985). This dispute centers around the debtor’s attempt to recover $203.68 in wages held by his employer pursuant to a wage garnishment in favor of FMC by using ...
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FINDINGS OF FACT This adversary proceeding involves the scope of fire insurance obtained by the Trustee during the administration of the bankrupt, Modern Appliance Center, Inc. The debtor-corporation filed for protection under Chapter 11 of the Bankruptcy Code, on December 14, 1981. On December 29, 1981, Mr. Gene Howard, a bankruptcy Trustee since 1974, was appointed as Trustee for this case; subs...
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MEMORANDUM DECISION This concursus proceeding was filed by the plaintiffs, who are obligors on four promissory notes. The plaintiffs are limited partners in the Chapter 11 debtor, 610 Texas, Ltd. On December 28, 1982, the plaintiffs purchased a partnership interest in the debtor. At that time the plaintiffs executed the promissory notes in question and allegedly assumed that they were purchasing ...
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ORDER This matter came before the Court for hearing November 5, 1985, on several motions of the parties. One is Norwest Bank of Hastings’ (Norwest) motion to dismiss the adversary proceeding filed by Debtor seeking declaratory judgment denying post-petition interest and attorney’s fees on Norwest’s prepetition unsecured claim in the bankruptcy case. A second, is Nor-west’s motion, in the altern...
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MEMORANDUM The matter being considered here is the Debtor’s request to approve his Amended Disclosure Statement in this Chapter 11 Reorganization case. No parties appeared at the hearing on February 4, 1986, and no objections were presented after notice to all creditors. This memorandum is based upon a consideration of the record as a whole. The Debtor is an individual wage earner. He is not ...
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The unsecured creditors committee moves to extend the time for the debtor to assume or reject a leasehold relating to property known as 190 Jony Drive, Carl-stadt, New Jersey. For the reasons set forth below, the Court denies the motion and deems the lease at issue to be rejected subsequent to December 17, 1985. The debtor filed its petition for reorganization under Chapter 11 of the Bankr...
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*258MEMORANDUM . This is an adversary proceeding involving disputed claims to a prepetition judgment held by the debtor. The Third National Bank (Bank) asserts an assignment of the judgment to the Bank by the debtor. Asserting his rights under 11 U.S.C.A. § 544(a) (West Supp.1985), the trustee contends the Bank did not notify the judgment debtor of the assignment as required by state law, hence t...
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MEMORANDUM OPINION This matter is before the court on the motion of the Internal Revenue Service (“IRS”) for reconsideration of an opinion and order disallowing part of its proof of claim on the basis that a portion of the debt on which the proof of claim was based had been discharged in the debtor’s previous bankruptcy proceeding. The court finds this is a core proceeding. 28 U.S.C. § 157(b)...
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MEMORANDUM DECISION These consolidated adversary proceedings arise out of related pre-petition transfers of the debtors, James and Martha Le-manski. The trustee, Michael Kepler has sought to avoid the transfers pursuant to 11 U.S.C. §§ 547 and 548, to recover the same pursuant to 11 U.S.C. § 550, and to preserve the voided transfers for the benefit of estate pursuant to 11 U.S.C. § 551.1 In 1980,...
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ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT FOR DEFENDANT AND ORDER DENYING MOTION FOR REHEARING This cause came on to be heard upon the motion for relief from judgment for defendant and order denying motion for rehearing filed by Stephen H. Judson, trustee, on December 30, 1985. This court is initially concerned with its jurisdiction to hear this motion purportedly filed under Rule 60(b), Fed....
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ORDER Suzanne Frazier, f/k/a Suzanne Bangs (Frazier), filed a motion for relief from stay to allow the Indiana Alcoholic Beverage Commission (ABC) to reissue license No. RR92-16729 in her name. Neither the debtor-in-possession while this case was in chapter 11 nor the trustee after it was converted to chapter 7 has addressed this motion. This matter was taken under advisement August 26, 1...
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MEMORANDUM FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bank...
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MEMORANDUM DECISION The interesting issue presented in this proceeding is whether an agreement to settle a pre-filing state court negligence action is a reaffirmation agreement subject to the requirements of 11 U.S.C. § 524(c), or is a post-filing agreement for new consideration. The court concludes that the agreement is a reaffirmation which does not meet the requirements of Section 524(...
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MEMORANDUM OPINION This is an action instituted by a creditor to except a state court judgment from discharge pursuant to section 523(a)(6) of the Bankruptcy Code. 11 U.S.C. § 523(a)(6) (Supp. II, 1984). Mrs. Harriet Ross owns a single family residential home in Royal Oak, Michigan. In June of 1978, she rented the home to Mr. Frank DeVier (debtor) on a month-to-month basis, and he ag...
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MEMORANDUM-DECISION, FINDINGS OF. FACT, CONCLUSIONS OF LAW AND ORDER Pursuant to Rule 7012(b) of the Rules of Bankruptcy Procedure, applying Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Debtor has moved to dismiss the complaint of Brian B. Blackmer (“Black-mer”). By stipulation of counsel, the matter is submitted upon the original complaint, Debtor’s motion and supplemental ...
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MEMORANDUM OPINION The matter presently before the Court is Debtors’ Complaint to Avoid Judicial Liens. Pennsylvania Central Federal Credit Union was the only Defendant to have answered the Complaint and default judgments were entered against all other Defendants. Pennsylvania Central Federal Credit Union (hereinafter “Defendant”) argues that pursuant to the Pennsylvania Lien Priority Law its l...
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OPINION The issue for decision in the case at bench is whether the “total cost method” is the proper measure of damages under a breach of a contract to supply parts for a fire sprinkler system. Due to a failure of proof, as explained below, we conclude that it is not the-proper measure of damages in the case before us. We summarize the facts of this case as follows:1 Southeastern Sprinkler Company...
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57 B.R. 398 (1986) In the Matter of CABAZON INDIAN CASINO. CABAZON INDIAN CASINO, Plaintiff-Appellant, v. INTERNAL REVENUE SERVICE, Defendant-Appellee. BAP No. CC-85-1006-MVAb. United States Bankruptcy Appellate Panels of the Ninth Circuit. Argued and Submitted September 19, 1985. Decided February 5, 1986. *399 Virginia S. Criste, Mack, Kahn & Criste, Palm Springs, Cal., Glenn M. Feldman, Zio...
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MEMORANDUM DENYING DISCHARGEABILITY The plaintiffs, Pacific International Developers Corporation, Ltd. (heretofore referred to as “PIDC”) and Carl Finseth, brought this adversary proceeding against the debtor/defendant, Joseph Sullivan, seeking a judgment of nondischargeability pursuant to 11 U.S.C.A. § 523(a)(2)(A) and (B). 1 The plaintiffs allege that the debtor intentionally...
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OPINION The above debtor moves for reconsideration and amendment of the prior order of this Court, entered on September 12, 1985. For the reasons set forth below, the motion is denied, thus permitting the September 12, 1985 order to stand. Moreover, this Court hereby abstains from exercising jurisdiction over any further proceedings on this particular issue. This matter finds its roots in a hearin...
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The Court has considered the defendant/debtors’ motion to stay this Court’s order of December 9, 1985, 56 B.R. 413, pending appeal. Upon further deliberation, the motion is denied. Federal Rule of Civil Procedure 62[c] states that the issuance of a stay pending appeal is a matter within the court’s sound discretion, considering the security of the rights of the adverse party. It has been certified...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether a post-petition year-end bonus paid by the Debtor’s employer is property of the estate to which the Trustee is entitled. The facts appear as follows. The Debt- or, David L. Palmer, an employee of Lincoln Electric Co., Inc., filed his Chapter 7 petition in this Court on June 18, 1985 and the Plaintiff, George I. Vogel,...
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*973 MEMORANDUM OPINION AND DECISION Debtor-in-possession (debtor) filed its petition under Chapter 11 of the Bankruptcy Code on June 7, 1985. It is engaged in the business of farming, including the growing and harvesting of walnuts, peaches and prunes. Prior to the filing of this case, debtor had obtained from the Bank of America National Trust & Savings Association (Bank) loans...
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MEMORANDUM OPINION AND DECISION Debtor-in-possession (debtor) filed its petition under Chapter 11 of the Bankruptcy Code on June 7, 1985. It is engaged in the business of farming, including the growing and harvesting of walnuts. Prior to the filing of this case, debtor had obtained from the Bank of America National Trust & Savings Association (Bank) loans in the approximate aggregate sum ...
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OPINION AND ORDER The Debtor has filed two motions, one under 11 U.S.C. § 522(f) to avoid the lien held by Fleet Finance Co., Inc./Credico Financial, Inc. (“Fleet”) on her household furnishings and goods and on her car, and the other under 11 U.S.C. § 722 to redeem the same property not only from Fleet’s lien but from all other lienors, “whether known or unknown.” Fleet, the only party se...
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ORDER ON MOTION TO EXTEND TIME TO FILE AN OBJECTION TO THE DISCHARGE OF A DEBT AND A MOTION AUTHORIZING A 2004 EXAMINATION THIS IS a Chapter 7 liquidation case and the matter under consideration is a motion filed by Joseph Arena (Arena) who seeks an order extending the time to file an objection to the discharge of a debt, that is, seeking a determination of the non-dis-chargeability of an obligati...
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ORDER The Debtors filed the above-styled contested matters seeking to avoid certain liens pursuant to 11 U.S.C. § 522(f)(2)(A). Hearings were held on September 9, 1985 and November 14, 1985, after which the Court took the matters under advisement. Respondents oppose the avoidance of said liens and urge the Court to adopt the guidelines set by the Federal Trade Commission [hereinafter “FTC”] reg...
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ORDER This matter is before the court on the debtor’s Complaint for Injunctive Relief filed on April 29, 1985. A pretrial conference was held on June 19, 1985. The Court was advised at that time that the parties would stipulate the facts. Following a briefing period, the matter was taken under advisement on October 18, 1985. FACTS Draggoo Electric Company, Inc., (Drag-goo) filed...
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MEMORANDUM ORDER FOR JUDGMENT This adversary proceeding came on for trial on October 28, 1985, by complaint of Michael Iannacone, trustee, seeking to avoid certain transfers as fraudulent pursuant to 11 U.S.C. § 548 and seeking declaratory judgment of ownership, rights and priorities among the parties regarding a certain collection of artwork. The trustee appeared and represented himself; Defen...
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OPINION This matter arises from cross-motions for summary judgment. (Bankr.R. 7056, F.R.Civ.P. 56) The plaintiff/debtor Nami Brothers, Inc., (hereinafter referred to as “Nami”), brought suit to recover a preference in the amount of $9,604.91 paid to Pat Pavers, Inc., (hereinafter referred to as “Pat Pavers”), in violation of § 547(b) of the Bankruptcy Code 11 U.S.C. § 547(b). Nami was a general c...
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ORDER ON OBJECTION TO CLAIM FINDING CLAIMANT TO HOLD A PERFECTED SECURITY INTEREST NOTWITHSTANDING LACK OF RECORDATION This matter came on to be heard on August 12, 1985 at 9:00 a.m. on the objection of the trustee in bankruptcy to Claim No. 1 filed by Sears, Roebuck & Company. The court is called upon to decide whether a purchase money security interest in consumer goods is an exception to the r...
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MEMORANDUM OPINION (As modified and reissued January 31, 1986) This cause comes to be heard upon the Motion of FIRST NATIONAL BANK OF SCHILLER PARK (“bank”) to Dismiss debtor’s Bankruptcy proceeding, or, in the alternative, to grant Relief from the Automatic Stay. Following the hearing held, Findings of Fact and Conclusions of Law have been separately entered. This Memorandum refers ...
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MEMORANDUM OPINION ON FEES The court previously by Order entered December 31, 1985 in this Chapter 11 case has allowed final fees and expenses to various attorneys and other parties involved in this Chapter 11 proceeding. Two of the fee applications involve certain legal issues which require further detailed elaboration which is now provided in this opinion. The fee requests in quest...
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MEMORANDUM DECISION AND ORDER By notice of motion dated December 27, 1985, 450 Village Company (“Landlord”) *320 has sought an order of this court awarding to it attorneys’ fees in the amount of $20,-135.97 and interest of $2,678.67 on late rent. The Debtor, Ribs of Greenwich Village, Inc., originally opposed both aspects of the motion but has withdrawn its opposition to the ...
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DECISION ON MOTIONS FOR SUMMARY JUDGMENT Plaintiff and defendant trustee have filed motions for summary judgment. In an earlier decision in this adversary proceeding, we said the following, which we repeat, as a summary of the pleadings herein: The complaint in the present adversary proceeding brings before us a controversy in a curious way. Plaintiff was evidently engaged in real estate developm...
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MEMORANDUM OPINION Upon the Motion for Re-conversion of Coleman-Adams Construction, Inc. (“Coleman-Adams”), an unsecured creditor of William A. Baber, a Debtor herein (the “Debtor”), the Court is called upon to determine whether cause exists, pursuant to 11 U.S.C. § 1307(c), to re-convert this case to a case under Chapter 7. On or about June 8, 1983, the Debtor sold to Coleman-Adams a diesel ...
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OPINION On December 23, 1983, Andrew Driscoll (“debtor”) filed his petition for relief under chapter 13 of the Bankruptcy Code. On April 2, 1984, the IRS filed its claim for the following amounts: secured tax claim Sl^lSe.íW 1 unsecured priority tax claim 970.38 unsecured tax claim 140.82 The debtor’s chapter 13 plan provides for monthly payments of $21.00 per ...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT ON OBJECTION TO CLAIM # 170 THIS IS a confirmed Chapter 11 case and the matters under consideration are two Motions for Summary Judgment. The first was filed by TMC United Industries, f/k/a Munzenrieder Corporation, the Debtor, who originally commenced this particular proceeding under Chapter 11 of the Bankruptcy Code. The second Motion for Summary Ju...
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MEMORANDUM CONCERNING MOTIONS TO EXTEND TIME FOR FILING OBJECTIONS TO DISCHARGE Before the court are the motions of creditors Joyce E. McDowell and the Sparks State Bank for an Order extending the time for filing objections to the debtor’s discharge. After reviewing the motions and, for the purposes of this decision, accepting all factual allegations contained therein as true, we believe that t...
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OPINION Confronted by a fee application submitted by the debtor’s counsel, we are faced with the question of whether we may award counsel fees when the assets of the estate are fully encumbered. On the basis of the reasons outlined below we conclude that no award of fees may be made. We summarize the few pertinent facts of this case as follows: 1 The debtor filed a petitio...
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OPINION The issue for decision is whether we should grant an application of a debtor-partnership for the employment of an accountant to prepare the debtor’s tax records although all of the debtor’s assets are fully encumbered. Since we find that the accountant’s services would not protect or enhance the value of the encumbered property, but would solely benefit the individual partners of ...
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MEMORANDUM I The debtors commenced a chapter 7 case on December 9, 1983. On July 5, 1985, the plaintiff Federal Deposit Insurance Corporation commenced this adversary proceeding to determine the validity, extent and priority of an asserted lien on rental income generated by two parcels of real property encumbered by certain deeds of trust. *305 When the debtors filed th...
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MEMORANDUM DECISION The Court having considered the memorandums of the parties and having been otherwise advised, finds that the damages awarded in the Order of Contempt dated September 30, 1985, are property of the estate pursuant to 11 U.S.C. § 541(a)(1) and (7)- Florida National Bank replevied before December 20, 1983, the date debtor filed for relief under 11 U.S.C. Chapter 11, an A-66 Ford Tr...
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MEMORANDUM RULING This case presents this Court with an interesting res nova issue. On November 19, 1985, the debtor filed an intent to abandon property which is encumbered by a chattel mortgage and promissory note held by Parlay Enterprises, Inc. This mortgage includes the fixtures, furniture, equipment and inventory for the operation of a sport shirt business known as T-Shirts Plus. The...
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59 B.R. 3 (1986) In re Mark Stephen McCALL, Debtor. COMMERCIAL SECURITIES CO., INC., Plaintiff, v. Mark Stephen McCALL, Defendant. Bankruptcy No. 585-00952-M07, Adv. No. 585-0239. United States Bankruptcy Court, W.D. Louisiana, Monroe Division. January 29, 1986. *4 William F. Pipes, Jr., Pipes & Pipes, Monroe, La., for plaintiff. Rick C. Anzalone, Monroe, La., for defendant. FINDINGS OF FACT LeR...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DISMISSING WITHOUT PREJUDICE THE WITHIN COMPLAINT FOR A DECREE OF NONDISCHARGEABILITY These are adversary actions brought by a creditor who is the assignee of the Osage Production Credit Association, which loaned the defendants — a father and two sons involved together in farming and trucking operations — some $166,680.00 pursuant to...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DECLARING SALE AGREEMENT VOID AND DIRECTING TURNOVER OF RENTAL PAYMENTS UNDER INITIAL LEASE Now before the court are a complex of issues which have been transferred to the undersigned from the division of the bankruptcy court formerly presided over by the Honorable Joel Pelofsky. All of these issues focus around one centra...
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OPINION Before the Court for decision are several motions. One of the debtors in this consolidated proceeding, Family Showtime Theatres of Bay Parkway, Inc. (“Family Showtime Bay Parkway”) is seeking, pursuant to 11 U.S.C. § 365(d)(4), to extend its time to either assume or reject its lease (“the Lease”) with Toys “R” Us-Nytex, Inc. (“Toys R Us”). Toys R Us is not only opposing any such ext...
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ORDER This is an adversary proceeding brought by First Citizens Bank & Trust Company (the Bank), objecting to the dischargeability of a debt owed to it by C. M. Winburn, Sr. (Defendant). FACTS Defendant filed a Petition on May 13, 1985 under Chapter 13 of the United States Bankruptcy Code (11 U.S.C. § 101 et seq.). The case was converted to a Chapter 7 case on June 7,...
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At issue in this chapter 13 case is the validity of a $27,500.70 “secured” claim filed by Union County Bank. The Bank contends the claim, based on a note signed only by the debtor’s husband, is secured by real property owned solely by the debtor. Challenging the validity of the claim are both the debtor and the trustee. 1 Also at issue is whether the debtor is entitled to recover of ...
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MEMORANDUM OF DECISION The Debtors filed the instant Adversary Proceedings on May 31, 1985 in order to determine the secured status and priority of statutory liens filed by the respective Defendants against certain of the Debtors’ oil and gas leases. On August 26, 1985, the Court entered an order pursuant to Bankruptcy Rule 7024 which allowed the Federal Deposit Insurance Corporation, (th...
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59 B.R. 535 (1986) In re WM. B. WILSON MFG. CO., Debtor. Bankruptcy No. 5-83-00944. United States Bankruptcy Court, W.D. Texas, San Antonio Division. January 29, 1986. *536 Richard Halter, San Antonio, Tex., for Wilson Mfg. Ronald B. King, San Antonio, Tex., for Chase Inv. Co. MEMORANDUM OPINION R. GLEN AYERS, Bankruptcy Judge. In this Chapter 11 case, Debtor filed an Objection to Claim on the g...
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MEMORANDUM OPINION CASE SUMMARY This case is before the Court on the creditor’s motion to terminate the automatic stay as to the debtors’ home for failure to pay its allowed claim for attorneys’ fees in the amount of $6,475.00. The Court is called upon to decide when the debtors are required to pay this claim in the context of a Chapter 13 repayment plan. For the reasons h...
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ORDER THIS MATTER comes before the Court on the Debtor’s Motion for Determination to Void Deed of Trust under 11 U.S.C. § 506(d). Debtor and his wife (who is not a debtor in bankruptcy) purchased their residence in 1984 for approximately $105,000.00, paying $5,000.00 cash down and obtaining a loan from American Continental Mortgage Co. for the balance and gave a first deed of trust t...
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OPINION With respect to a number of claims filed in this case, the Trustee’s notice of objection to the claim was mailed by first-class *567 mail to the claimant’s last known address but was returned by the U.S. Postal Service as being undeliverable. In each such instance, the Trustee has filled a “motion for entry of order” and has submitted a form of order sustaining the Trustee’s objection...
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MEMORANDUM AND ORDER These cases have been consolidated for purposes of this Memorandum and Order because they present the same issue: whether a bankruptcy court may excuse a debtor from attending the creditors’ meeting required by 11 U.S.C. § 341 (“341 meeting”) despite the language in 11 U.S.C. § 343 that the debtor “shall” attend such meeting. In In re Vilt, the debtor ...
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MEMORANDUM AND ORDER The debtor-in-possession, Peter J. Deme-tralis, instituted this adversary proceeding against Golden Guernsey, Inc. to recover four alleged preferential transfers under 11 U.S.C. § 547. 1 The debtor has filed a *280 motion for summary judgment. In analyzing the motion, all contested facts must be viewed from the point of view most favorable to t...
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MEMORANDUM OPINION THE SECURED Creditor’s motion for relief from stay in this case presents an opportunity for this Court to express an opinion on the appropriate stay litigation procedure. The Rules of Bankruptcy Procedure adopted by the Supreme Court changed stay litigation from adversary proceedings, essentially law suits, to contested matters, essentially motion practice. (See Rules of Bank...
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*273 DECISION ON MOTION TO CONVERT CASE TO CHAPTER 7 OR TO DISMISS CASE. Gibraltar Corporation of America (“Gibraltar”) the holder of both a secured and an unsecured claim in this Chapter 11 case, has moved for an order pursuant to 11 U.S.C. § 1112(b) converting this case to a case under Chapter 7 of the Bankruptcy Code, or for dismissal of the case. Manufacturers Hanover Trust C...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Debtor’s Motion To Reopen Proceeding and the Opposition to that Motion filed by Maria Schlegel. The Court conducted a Hearing on this Motion, at which the parties offered both evidence and argument. The Court has reviewed the evidence, arguments, and the entire record in this case. Based upon that review and for the followi...
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The debtor’s attorney has made application for allowance of fees and expenses as a professional person employed pursuant to 11 U.S.C. § 327 (1979 & Supp.1985). Objections have been filed by the trustee and another creditor to those portions of the application which reflect services performed for the personal benefit of the debt- or, not the estate. A hearing was held pursuant to 11 U.S.C. § 330...
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OPINION The essence of the dispute in the case at bench is whether we should sustain the trustee’s objection to a proof of claim filed by a retail purchaser of carpet on the basis that the customer received in substance the same type of carpet he ordered. For the reasons stated herein, we conclude that the trustee’s objection should be sustained. We summarize the facts of this case as follows:1 Th...
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FINDINGS AND ORDER These proceedings are before the Court on VNB’s motion for relief from automatic stay and its- complaint for a declaratory judgment that 11 U.S.C. Section 362 does not operate to toll and suspend the debtor’s time to redeem its equity of redemption. Because we find that the debtor failed to offer VNB adequate protection, we grant VNB’s motion for relief from stay. ...
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OPINION AND ORDER Following a hearing held on November 12, 1985 this Court, albeit reluctantly and with serious reservations, provisionally denied a motion by Walter Kendall et al. (“the Movants”)1 to transfer these two related cases immediately to the bankruptcy court in California having proper venue. This Court’s oral ruling provisionally denying the motion at that time was based largely upon t...
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MEMORANDUM ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY FINAL JUDGMENT This proceeding came on for hearing on December 16, 1985, on the parties’ cross Motions for Summary Judgment. Upon consideration of oral argument and post-hearing briefs, the Court finds as follows: On August 17, 1979, plaintiff, Cyrus Lu-ley, entered a Florida Marine Security Agreement-Retail Installment Contract (Contract) w...
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MEMORANDUM OPINION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to ...
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MEMORANDUM OPINION RE MOTION FOR RELIEF FROM AUTOMATIC STAY FILED BY FEDERAL DEPOSIT INSURANCE CORPORATION Final evidentiary hearing on Motion for Relief from Automatic Stay filed by the *669 Federal Deposit Insurance Corporation was heard on November 7,1985. John Minahan and Randall Wright of Dixon, Dixon & Minahan, P.C., Omaha, Nebraska, appeared on behalf of the Federal De...
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OPINION AND ORDER This matter is before the court upon the objection of the defendant United States of America to the Debtor-in-Possession’s attempt to direct the allocation of payments from the proceeds of the sale of real property to the tax lien claim of the Internal Revenue Service. The Government argues that any payments made in the course of bankruptcy proceedings are “involuntary” ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion of the Bankrupts For Leave To File Amended Tax Claim and the Joint Motion To Consolidate the United States’ Proof of Claim filed by the Bankrupts and by the Internal Revenue Service (hereinafter IRS). The Court has conducted a Hearing on these Motions and has heard the arguments of counsel. The Court has reviewed tho...
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MEMORANDUM OPINION Northern Specialty Sales, Inc. (hereinafter referred to as “NSS”), the debtor herein, filed a complaint alleging that the above-named defendants were recipients of a bulk sale, notice of which was not recorded as required by California’s commercial code. NSS filed its petition in bankruptcy on December 30, 1983. The complaint which commenced this adversary proceedi...
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FINDINGS & ORDER This dispute between the trustee and a creditor who has moved for relief from stay concerns a motor vehicle that, like the phoenix, has risen from its ashes. The creditor had perfected a security interest in a truck that was largely destroyed in an accident. The creditor believes that this security interest covers a reconstructed truck incorporating parts salvaged from th...
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MEMORANDUM DECISION AND ORDER Donald William Martinson and Carol Joan Martinson (“Martinsons”) filed for relief under chapter 7 of the Bankruptcy Code on June 24, 1985. The Martinsons elected exemptions under Wisconsin law. Mr. Martinson claimed a retirement account, the Emjay Master Profit and Retirement Plan (“the plan”), as exempt under section 815.18(31) of the Wisconsin Statutes. The plan was...
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ORDER ON MOTION TO DISMISS THIS IS another instance, recurring with more and more frequency in this District, which involves a challenge of the right of a Debtor to maintain a Chapter 11 case. This challenge, usually interposed by a secured creditor who is frustrated by the automatic stay imposed by § 362 of the Bankruptcy Code, is based on the contention that the petition was filed in “bad fai...
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PARTIAL SUMMARY FINAL JUDGMENT This matter came before the Court on the defendant’s, Deseo Marine, Inc., Motion for Summary Judgment. The complaint alleges that the plaintiff is entitled to foreclose a statutory lien on a seagoing vessel known as “Contender,” which was constructed by Deseo. It is undisputed that PJ & L was a contractor in privity with Deseo, that PJ & L purchased from the plainti...
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MEMORANDUM OPINION I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to ...
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REASONS FOR JUDGMENT I. Jurisdiction The following jurisdictional rulings were made on February 7, 1985, and have not been appealed. This is a matter within the jurisdiction of the United States District Court for the Middle District of Louisiana under the authority of 28 U.S.C. § 1334(b) and (d). The Court ruled that this is a core matter pursuant to 28 U.S.C. § 157(2)(A) and (E) si...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising in a case under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases ...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court *225for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Bank...
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MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Debtor is an attorney whose practice includes litigation in the area of personal injury. In 1974, Debtor allegedly engaged the services of Defendant Sachs to assist him as an expert on medical matters in an ongoing case. Defendant took as payment seven percent (7%) of any legal fees realized by Debtor. Subsequently, the ...
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ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT Formerly, on December 3, 1985, this court rendered its findings of fact, conclusions of law and final decree and judgment declaring the defendant’s indebtedness to plaintiff to be dischargeable in bankruptcy, 56 B.R. 50. The principal finding then made by the court was that the defendant, in issuing a warranty deed on October 8, 1979, ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FACTS On August 30,1985, the Northeast Dairy Cooperative Federation, Inc. (“Nedco”), filed a petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. (“the Code”). On September 18, 1985, the Hon. Justin J. Mahoney, U.S. Bankruptcy Judge, issued an order appointing eleven creditors to an Of...
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DECISION AND ORDER This matter came to be heard by order to show cause on behalf of the trustee of debtor’s chapter 7 bankruptcy estate. The trustee sought approval for a proposed settlement of an adversary proceeding commenced by Ashland Oil to recover damages caused by debtor’s alleged conversion of $800,000 of petroleum. The trustee and Ashland agreed to settle the dispute for $100,000 cash to ...
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DECISION AND ORDER ALLOWING DEFENDANT’S CLAIM AS SECURED IN PART AND UNSECURED IN PART This matter is before the court upon the complaint of the Chapter 13 Trustee to determine the extent and value of a secured interest claimed by Thorp Credit, Inc. of Ohio [“Thorp”] in the household goods of William G. Whitt, a Chapter 13 debtor. FACTS The sole witness for the trustee at trial was Ruth H. Whitt, ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motions For Summary Judgment filed by Defendant Kendall’s Transport Refrigeration, Inc. (hereinafter Kendall), and by the Plaintiff against Kendall. The parties have each submitted arguments as to the merits of these motions and have had the opportunity to respond to the arguments made by opposing counsel. The Court has revie...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Trial on the Complaint to Determine Dis-chargeability. The Court has heard the evidence offered by the parties and the arguments made by counsel. Although the parties have been afforded the opportunity to file post-trial arguments, they have not done so. The Court has reviewed the evidence and arguments as well as the entire rec...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion For Summary Judgment filed by the Defendant, Dorothy Verplatse, and the Motion For Summary Judgment filed by the Defendants, Albert A. Verplatse and Pool-Pals Manufacturing, Inc. (hereinafter Pool-Pals). The parties have filed their written arguments respecting the merits of these Motions and have had the oppor...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint to Determine Dis-chargeability of Debt in the above entitled adversary action. The Court conducted a Pre-Trial conference in this case, at which the parties expressed their intent to contest an issue of law which stands as a threshold question in the resolution of this case. That issue involves the question ...
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ORDER GRANTING DEBTORS’ MOTION TO CLASSIFY CLAIMS The above-referenced Debtor Partnerships and the Official Investors Committee jointly bring this motion before the Court seeking approval of the classification of all investors in the Debtor Partnerships into one class for voting purposes. The motion is brought under Rule 3013 of the Bankruptcy Rules which authorizes court approval of voter clas...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether the pre-petition debt to Bluefield Community Hospital which was not listed on the Debtors’ schedules in this no-asset case should be held nondischargeable. The Debtor, Frank Smolarick, is a police officer for the Town of Pocahontas, Virginia. His wife, Garnell Smolarick, was admitted to Bluefield Community Hospital on...
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DECISION The question presented is whether a forged or unauthorized signature, purporting to be that of an authorized representative of the purchaser, on title applications for 50 trucks, resulting in the issuance of certificates of title for these trucks with the secured party’s lien upon each title, voids the lien on each title as against the debtor-in-possession. At a trial conduc...
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ORDER This Order shall constitute the Court’s findings of fact and conclusions of law. This matter is before the Court on its own Order to Show Cause why the Debtors’ chapter 7 proceedings should not be dismissed pursuant to 11 U.S.C. § 707(b) as a substantial abuse of the provisions of that chapter. The Debtors were represented at the hearing by Dennis Breen. Creditor Tucson Realty and Trust...
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ORDER DENYING MOTION FOR REHEARING THIS IS a Chapter 11 reorganization case and the matters under consideration are a Motion for Rehearing of this Court’s Order Extending The Time To Assume Or Reject Lease entered on October 22, 1985 (Extension Order). The issue before the Court is whether the lessor, Old Hyde Park Village Center, Ltd. (Old Hyde Park), under the facts in this case, is ent...
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ORDER The plaintiff/debtor in possession, Corporate Jet Aviation, Inc. (“CJA”), commenced this adversary proceeding against the defendant, Charles D. Vantress (“Vantress”), by filing a complaint to recover $450,000.00 paid to Vantress by CJA in redemption of 350 shares of CJA common stock. One of the five counts in CJA’s complaint alleges that the redemption should be set aside as a fraud...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for hearing on the “Trustee’s Application for Approval of Amended Settlement Agreement and for Authorization of Payment of Attorneys’ Fees and Litigation Expenses” as further amended October 2, 1985, (the “Trustee’s Application”). The issue was whether this Court should approve the settlement offered by McDonalds of the claims and...
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OPINION The above captioned debtor moves to reclassify a secured claim filed by Daewoo International (America) Corporation (“Dae-woo”) to the status of a general unsecured claim. For the reasons set forth below, this Court grants the within motion. The facts of the case are relatively straightforward. Daewoo possessed a perfected security interest in certain milling machines held by the debto...
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*949 DECISION The trustee has collected total receipts of $22,562.09 which appear to be the proceeds generated from a sale of the debtor’s assets, accounts receivable, turnover of funds from the debtor’s bank account, and interest earned by the trustee thereon. He seeks the maximum statutory commission of $831.24 which is hereby allowed pursuant to 11 U.S.C. § 326(a). The tr...
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DECISION ON MOTION FOR AN ORDER TO VACATE THE AUTOMATIC STAY AND TO PERMIT SETOFF Manufacturers Hanover Trust Company (“Trust Company”) has moved for an order pursuant to 11 U.S.C. § 362(d) for relief from the automatic stay in order to permit Trust Company to offset monies deposited by the debtor in accounts maintained by him at several of its branches. The debtor, who voluntarily filed ...
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This matter is before the court upon the application of John Robert Pantone, debtor, to reopen Bankruptcy Case No. 3-82-03566 for the purpose of adding his former spouse, Patricia A. LaGrasta fka Patricia A. Pantone, as a creditor, and upon the objection of Patricia A. LaGrasta to the debtor’s application. In addition to the testimony offered at the hearing on the debtor’s application, the...
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MEMORANDUM OPINION The matter before the Court is FSC Corporation’s (hereinafter “FSC”) Complaint To Compel Payment Of A Debt, Interest, Attorneys’ Fees and Costs. At issue is FSC’s Motion For Partial Summary Judgment, wherein it is averred that there is no genuine issue of material fact and that FSC is entitled to judgment as a matter of law. For the reasons hereinafter set forth, this Court dete...
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ORDER Heard on motion of a creditor, Charles Mason, to vacate an order entered on October 11, 1985, wherein the trustee was permitted to reopen bidding on the debtor insurance agency’s principal asset, a book of accounts. The trustee and the debtor object to Mason’s motion to vacate. To place the instant controversy in proper perspective one must retrace the recent travel of this matter which has ...
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OPINION ON OBJECTION TO CONFIRMATION This objection to confirmation raises again the difficult question posed when a Chapter 13 debtor’s plan offers to pay a government guaranteed education loan at a nominal rate as an unsecured debt. The Congress, while making clear its intent that in Chapter 7 proceedings the debt should survive discharge (11 U.S.C., § 523(a)(8)) except for staleness or hards...
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MEMORANDUM AND ORDER On November 8, 1985, Oceanquest Feeder Service, Inc. and its wholly owned subsidiary, Norfolk, Baltimore & Carolina Line, Incorporated, filed separate Chapter 11 petitions in this Court 1 for relief under the Bankruptcy Reform Act of 1978, as amended. On November 14,1985, Leigh G. Hogshire, a creditor, filed a motion under 28 U.S.C. § 1412, ...
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REASONS FOR JUDGMENT I. Jurisdiction of the Court This is a proceeding arising under Title 11 U.S.C. The United States District Court for the Middle District of Louisiana has original jurisdiction pursuant to 28 U.S.C. § 1334(b). By Local Rule 29, under the authority of 28 U.S.C. § 157(a), the United States District Court for the Middle District of Louisiana referred all such cases to the Ban...
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ORDER DENYING MOTIONS TO DISMISS THIRD PARTY COMPLAINTS AGAINST ARTHUR ANDERSEN & CO. The Court is presented with two motions filed by Arthur Andersen & Co. (Andersen) pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss third-party complaints filed by Edward L. Smith and Henry I. Bushkin. Andersen contends, inter alia, that the complaints fail to allege and establis...
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OPINION By agreement of all parties, this proceeding is before the Court on the claim of Hibernia National Bank in New Orleans, hereinafter referred to as Hibernia, to the proceeds of a sale of 91,685 gallons of fuel formerly aboard the M/V UNITED STATES; said claim being disputed by the above captioned Debtors and the Debtors’ unsecured creditors committee; all of said parties having consented...
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MEMORANDUM AND DECISION This adversary proceeding was commenced by the filing of a complaint by the trustee, Louis A. Ryen. The complaint alleges that the debtor, Elizabeth A. Terry, received, subsequent to the filing of her petition for relief, approximately $51,000 as settlement for an action which was pending prior to her filing. The trustee is seeking immediate possession of the proce...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT This matter comes on for consideration on the defendant’s motion for summary judgment on the ground that the pleadings and exhibits show that there is no genuine issue as to any material fact and that defendant is entitled to judgment as a matter of law that the plaintiff be accorded no relief as requested in his complaint, that the action be dis...
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OPINION The matter for resolution is whether transfers of several executory contracts are avoidable under Pennsylvania’s Uniform Fraudulent Conveyance Act (“the Conveyance Act”) on the basis that adequate consideration was not passed for the contracts. Under the findings of fact and conclusions of law expressed below, we hold that the transfers are not avoidable. The facts of this ca...
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MEMORANDUM DECISION AND ORDER On October 6,1983, Scott Hadden (“debt- or”) commenced a civil action in Rock County Circuit Court against Stettler Construction Co. (“Stettler”). The debtor’s first cause of action was for breach of a construction contract earlier entered into between the parties (“the contract”), and his second cause of action was for theft by contractor. On October 26, 1983, Ste...
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ORDER ON MOTION FOR REHEARING THIS IS a Chapter 11 case and the matter under consideration is a Motion for Rehearing. The Motion was filed by Malka Isaak, attorney for the Debtor, and was directed to the order heretofore entered by this Court on December 27, 1985, 56 B.R. 159. That order was in response to three motions filed by Joseph L. Cabella, a creditor. The first motion sought to lift the...
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ORDER DENYING OBJECTION TO EXEMPTIONS AND AVOIDING LIENS. The above-entitled matters came on for hearing before the undersigned Judge on *709 December 31, 1985, upon the motion of Federal Deposit Insurance Corporation (“FDIC”) for relief from the automatic stay imposed by 11 U.S.C. § 362 and as the successors in the interest to the Early Savings Bank, 1 which had o...
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*3MEMORANDUM RULING Wallace Ray Stahl and Norma Faye Tyler Stahl filed a petition for relief under Chapter 13 of the U.S. Bankruptcy Code. Lloyd’s of London filed a Motion for Relief from Automatic Stay to permit proceedings against the debtor, Wallace Ray Stahl, in Texas State Court in the case styled, “Various Underwriters at Lloyd’s of London versus Wallace Stahl”, being Cause No: 83-16395-M, c...
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MEMORANDUM OPINION BACKGROUND On July 29, 1985, an order for relief was entered on the Debtor’s voluntary Chapter 7 petition. On July 1, 1985, Debtor borrowed $2,423.56 from ITT Financial Services (“ITT”). In return, Debtor granted ITT a nonpossessory, nonpurchase-money security interest in the following collateral: Wizard Push Lawn Mower Two Gold Chains Gold Earrings ...
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MEMORANDUM OPINION AND ORDER The matter before the court is the Motion to Dismiss or, In the Alternative, Motion For Abstention filed by the defendants, E.M. Beaver, Patty Beaver Foscue, William M. Beaver, W.B. Beaver, E.R. Dim-mette, Sr., E.R. Dimmette, Jr., Cindy D. Heath, Lillian B. Dimmette, and B & D Development Company, a North Carolina General Partnership. The parties filed extensi...
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MEMORANDUM OPINION The matter before the Court is the Trustee’s Complaint To Avoid A Preferential Transfer Under Section 547 of the Bankruptcy Code. This Adversary proceeding was originally commenced against the above-captioned three defendants. However, by stipulation approved by this Court, the actions against Three Rivers Bank and Trust Company and Liberty Bell Savings and Loan have been dismis...
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The chapter 13 trustee sold real property belonging to the debtor. The property was subject to the mortgage of Citizens Savings and Loan, and before confirmation of the Chapter 13 plan, was subject to the State of Tennessee’s tax lien. The question is how much, if any, from the sale proceeds must be paid to the State to satisfy the debt secured by its tax lien. The facts are as follows. Ma...
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The trustee in the bankruptcy of A. Fass-nacht & Sons, Inc., brought this suit against Suzanne Fassnacht to recover an “insider” preference. 11 U.S.C. § 547. As the statute applies to this case, the trustee can recover only if Suzanne Fassnacht had reasonable cause to believe the company was insolvent at the time of the transfer. 11 U.S.C. § 547(b). Trial was held first only on that issue. The tra...
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MEMORANDUM DECISION AND ORDER This adversary proceeding concerns a substantial loss of stored grain suffered by the debtor-plaintiff, Howard A. Krupke (“Krupke”) which led to his bankruptcy on June 6, 1984. Prior to his petition in bankruptcy Krupke had retained the services of the defendant Richard F. Lindemann (“Lin-demann”), a certified public accountant, at the behest of Merchant’s Ba...
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57 B.R. 821 (1986) In re KROEGER PROPERTIES AND DEVELOPMENT, INC., Debtor. Appeal of Francis W. ZILAFF, Real Party in Interest. BAP No. EC-85-1056-MEAs. United States Bankruptcy Appellate Panels of the Ninth Circuit. Argued and Submitted September 20, 1985. Decided January 21, 1986. Francis W. Zilaff, Zilaff & Zilaff, Sacramento, Cal., for appellant. Before MEYERS, ELLIOTT and ASHLAND, Bankru...
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57 B.R. 166 (1986) In the Matter of UITERWYK CORPORATION, et al., Debtors. Bankruptcy No. 83-166. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 17, 1986. Edward A. Hill, Langford, Mooney & McDuffee, P.A., Tampa, Fla., for creditor Charles Molho, etc. Cindy L. Turner, Stichter and Riedel, P.A., Tampa, Fla., for debtors. ORDER DENYING AMENDED MOTION FOR RECONSIDERATION ...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIMED EXEMPTIONS This cause came on for hearing on November 18, 1985 before this court on trustee’s objection to claimed exemptions. The trustee submits that the exemptions claimed by debtor exceed the exemptions allowed under Article X, Section 4, Florida Constitution and Chapter 222, Florida Statutes. Debtor contends that the scheduled items are exe...
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MEMORANDUM This adversary proceeding came before the Court for trial on the Complaint of the chapter 7 trustee, Robert Cataldo (“the trustee”) seeking a determination of the nature and extent of a warehouseman’s lien on property of the debtor, Knoware Inc., (“the debtor”) asserted by the defendant, Casey & Hayes, Inc., (“Casey & Hayes”) for moving and storage charges in the sum of $6127.2...
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DECISION Heard on the debtor’s motion, pursuant to 11 U.S.C. § 522(f)(1), to avoid a judicial lien on his principal residence, and on the objection of the lienholder, Valley Wholesale Building Products of Rhode Island, Inc. The relevant facts are described below. 1 Back in July 1983, Valley Wholesale filed a book account action in the Providence County Sixth Division District Court against ...
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Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C.A. §§ 9601-9657 (West 1983 & Supp.1985) and pursuant to 11 U.S. C.A. §§ 503(a) and (b)(1)(A) (West 1979), the State of Tennessee, on behalf of the Tennessee Department of Health and Environment (TDHE), requests allowance of costs incurred in a removal action at a hazardous waste facility, in the amou...
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ORDER REVOKING APPROVAL BY THE COURT OF EMPLOYMENT BY THE DEBTOR OF ATTORNEYS The above-styled case was commenced by a voluntary petition of the debtor, Willie Jo Estes, filed in the United States Bankruptcy Court on April 17, 1984, under the provisions of title 11, chapter 11, United States Code, seeking a reorganization of the debtor’s financial affairs. After enactment of the Bankruptc...
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*694 MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION OF PLAN The objection of Larry Dixon to the confirmation of the Chapter 13 plan of the debtor, Thomas Wilson, was heard November 13, 1985. At that time, the parties were given until December 18, 1985, to file briefs. Briefs have been filed and the case is taken as submitted on the brief, the court files, and oral arguments of counsel. Fi...
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ORDER DENYING COMPLAINT TO AVOID FRAUDULENT TRANSFER In two prior hearings in this proceeding, this court ruled that a foreclosure sale and issuance of a certificate of purchase is a transfer avoidable under 11 U.S.C. § 548; that the fair market value of the real property in question was $85,000.00 at the time of the foreclosure sale; and that the Debtors were rendered insolvent by the foreclos...
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MEMORANDUM OPINION AND ORDER Albert A. Vietri was a home builder who controlled two corporations, Vietri Homes, Inc. and Albert A. Vietri, Inc. Each case was filed under Chapter 11. There was a subsequent substantive consolidation followed by a conversion to Chapter 7. The corporations were building homes on property known as Anvil Park. First Federal Savings and Loan Association was the constr...
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ORDER DENYING MOTION BY M.E. DAWKINS FOR STAY PENDING APPEAL Upon consideration of the argument and briefs submitted by the parties, the Court denies motion of M.E. Dawkins for stay pending appeal. On September 4, 1985, trustee for debt- or’s estate, William F. Beemer, filed a Report and Notice of Public Auction and/or Alternatively Report and Notice of Abandonment. In this Report, t...
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ORDER This case is presently before the Court on two motions. The first is a motion filed on October 8, 1985 by the debtor in possession, Sun Belt Electrical Constructors, Inc. (“Sun Belt”), to reject three executory contracts (“Guy Contracts”) involving Sun Belt, M & M Electric Supply, Inc. (“M & M”), and the Joe N. Guy Company, Inc. (“Guy”). The second motion is a motion filed on Novemb...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motion To Dismiss and the Motion for Relief From Stay filed by Barbara Baum-gartner, the Court’s Order to Show Cause On Dismissal or Conversion, and the Hearing on the Debtor-In-Possession’s Disclosure Statement. With the exception of the Disclosure Statement, the Court conducted a Hearing on all of these matters. At ...
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OPINION The first of two issues presented in this opinion is whether prepetition debts may be setoff against postpetition obligations. The second point for decision is whether there is a breach of an implied warranty of merchantability when a computer is billed as compatible with the software of a competitor although, in fact, it cannot operate some of the competitor’s software programs. For th...
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OPINION The primary point for decision is whether a tenant/debtor may recover a penalty from her landlord under Pa.Stat.Ann. tit. 68, § 250.512 (Purdon 1965 & 1985 Supp.) due to the landlord’s alleged failure to return the debtor’s security deposit or inform her of damages to the leasehold within 30 days after the termination of the lease. Since there is no credible proof that the debtor provided...
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OPINION The proposition advanced under the trustee’s complaint, is whether the Internal Revenue Service (“the IRS”) may levy, though not seize, the debtor’s interest in property held in custodia legis by a clerk of a state court. On the basis of the reasons outlined below, we conclude that the levy was effective and we will direct the *702 prothonotary of the state...
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OPINION The heart of this controversy is whether an obligation should be declared nondis-chargeable on the creditor’s proof that the debtors willfully and maliciously sold collateral securing a debt. On the basis of the facts and law outlined below we conclude that the debt is not dischargeable under 11 U.S.C. § 523(a)(6) of the Bankruptcy Code (“the Code”). *700 We summarize the facts of t...
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MEMORANDUM AND ORDER A voluntary case under Chapter 7, sub-chapter IV, of the Bankruptcy Code was commenced for Chicago Discount Commodity Brokers, Inc. (“CDCB”), by its court-ap*628pointed receiver on November 4, 1980. Pri- or to the commencement of the case CDCB was primarily engaged in the business of trading commodity futures contracts for its customers and was a “commodity broker” within the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiff, debtor Roger D. Vocque, filed a Chapter 13 voluntary petition in bankruptcy on September 13, 1983. On September 15, 1983, this Court issued an order for an automatic stay pursuant to 11 U.S.C., Section 362(a). On August 24, 1984, the Internal Revenue Service (IRS) served a notice of levy upon Security First National Bank seeking any and all mo...
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OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION AGAINST CRIMINAL PROSECUTION This Court granted the debtor a temporary restraining order [P. 6] on August 6, 1985, which enjoined the defendants from continuing a criminal prosecution in a Texas state court against the debtor for a period of ten days. The order also provided that a hearing would be held upon the instant complaint of the de...
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MEMORANDUM OPINION REGARDING MOTION OF OLD KENT BANK-CENTRAL FOR RELIEF FROM STAY FACTS In March, 1977, Pacesetter Bank & Trust (now Old Kent Bank-Central) executed a *670 security agreement with John and Vicki Keeling d/b/a Darling Lumber Co. whereby the bank took a security interest in presently owned and after-acquired accounts receivable, contract rights, chattel pap...
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ORDER DENYING MOTION FOR RECONSIDERATION “[A] ‘motion for reconsideration,’ although filed within 10 days, contained no request to alter or amend judgment (though maybe that was implicit) but merely informed the court that the movant would file at a later date a memorandum of law. Essentially, then, the motion was a request for extension of time, and extensions of time are not permitted for Rule 5...
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MEMORANDUM DECISION AND ORDER By motion and application filed October 31, 1983 General Electric Credit Corporation (“GECC”) sought, in the alternative; (1) the reconsideration of eleven reclamation claims which were previously allowed by various orders of this court, or (2) the vacature of seven orders allowing various sellers’ reclamation claims. 1 The gravamen of GECC’s appli...
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DECISION AND ORDER ON O.P.M.’S OBJECTION TO CLAIM AND NORTHROP’S MOTION FOR SUMMARY JUDGMENT The parties to the present claim objection dispute, James P. Hassett, the Trustee (“Trustee”) for the debtor, O.P.M. Leasing Services, Inc. (“O.P.M.”), and Northrop Corporation (“Northrop”), seek a ruling on whether Northrop’s claim against O.P.M. should be discounted to its value as of the date O...
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MEMORANDUM OF OPINION AND ORDER This matter is before the court on the motion of Morris Glassman (“Glassman”) *148 for application of Bankruptcy Rule 7023 and for class certification of claim, the motion of Electronic Theatre Restaurants Corporation (ETRC”), debtor and debtor-in-possession, for summary judgment in favor of ETRC as a matter of law and to dismiss proof of claim number 99 insofa...
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OPINION A debtor’s motion for an award of expenses and attorneys’ fees, pursuant to Fed.R.Civ.P. 37(c), is before the Court. For the reasons stated, we will grant the motion. On March 16, 1984, Walter Sweeten (“debtor”) filed a petition under Chapter 7 of the Bankruptcy Code (“Code”). 1 On April 4, 1984, the debtor filed a motion to avoid the judicial lien of DeSimone, Inc. (“DeSimone”). On...
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ORDER ON OBJECTIONS TO CONFIRMATION Debtor, Johnny E. Perry, d/b/a J & R Granite Co., filed his petition under Chapter 13 of the Bankruptcy Code on July 30, 1985. Five parties in interest, Phyllis M. Beasley, f/k/a Phyllis M. Chastain, and her minor children, Christy Diana Chastain and David Paul Chastain; Joanna B. Hannah; and Ray B. Burruss, Jr., (“Objectors”) object to the confirmation...
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*83 MEMORANDUM RULING The Herrons filed for protection under Chapter 11 of the Bankruptcy Code on August 4, 1983. A Chapter 11 Plan of Reorganization was confirmed by order of this Court on August 1, 1984. An amendment to the Plan of Reorganization filed April 12, 1984 deals specifically with the claim of the Federal Land Bank. The amendment provided that the claim of the Federal Land Bank wa...
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On October 21, 1982, Allstate Fabricators Corp. (hereinafter “Allstate”) commenced this adversary proceeding against Flagstaff Foodservice Corp. (“Foodservice”), then a Chapter 11 debtor. Subsequently, on June 28, 1984, an order was signed converting the cases to Chapter 7 and a Chapter 7 trustee thereafter appointed. The complaint has three counts: Count I seeks to reclaim certain kitchen...
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MEMORANDUM OF OPINION This matter came on for hearing on the motion of Fisher, Hecht & Fisher (“FHF”) to dismiss the second amended objection to claim and counterclaim of D.H. Overmyer Telecasting Co., Inc. (“Telecasting”) to claim number 149 filed by FHF. In the alternative, FHF seeks to have this proceeding transferred to the United States Bankruptcy Court for the Southern District of N...
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*518 MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Complaint filed by the Debtor-In-Possession in the above entitled adversary action. The Court conducted a Pre-Trial Conference, at which the parties agreed that the issues addressed by the Complaint are solely issues of law, and that the Court may render a decision in this case based upon the written arg...
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DECISION AND ENTRY REVERSING ORDER AND SUPPLEMENTAL ORDER OF CONFIRMATION; REMAND TO U.S. BANKRUPTCY COURT FOR FURTHER PROCEEDINGS Kenneth Buroker and William Buroker have raised numerous issues in their appeal from the order and supplemental order of the bankruptcy court confirming the Amended Plan of Reorganization filed by Don Raybourn and Kaye Raybourn (hereinafter known collectively ...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing on July 10, 1985, on the trustee’s complaint for recovery of accounts receivable. The complaint against the defendant John Ryan sought to recover an account receivable of $1,284.26 for goods delivered. The plaintiff-trustee James S. Willis and the defendant John Ryan both appear pro se. Defendant objects to the jurisdiction...
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MEMORANDUM OPINION AND ORDER This is an action brought by the trustee herein to avoid certain transactions between the debtor and the defendants, Bank of Lafayette and Guaranty Bank & Trust [referred to collectively herein as Banks.] The Trustee also seeks to avoid an assignment of accounts receivable pledged to Bank of Lafayette. Having considered the evidence and arguments pr...
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ORDER DISMISSING DEBTOR’S CHAPTER 7 PETITION I. Ón June 26, 1985, George Robert Bell filed this voluntary petition under Chapter 7 of the Bankruptcy Code. Following a review of the debtor’s petition, the Court, sua sponte, issued an order to appear and notice of hearing pursuant to 11 U.S.C. § 707(b), because the Court was concerned that the granting of relief may constitute a substantial a...
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OPINION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Prior to its bankruptcy, RLA Conventions & Events, Inc. (“C & E”) entered into ■ an agreement (“Agreement”) with International Business Machines Corporation (“IBM”) obligating C & E to provide to IBM catering and other services for IBM’s hospitality center at the 1984 Summer Olympics. To fulfill its contractual obligations, C & ...
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DECISION ON MOTION FOR AN ORDER AND JUDGMENT FIXING AND DETERMINING INTEREST BUY-N-SAVE, CASH & CARRY, INC., (“Buy-N-Save”), a debtor in this court, has moved for a determination of statutory interest on a contractual sum that it claims is due it pursuant to an order of this court dated July 3, 1985. The order settled an adversary action arising out of a pre-petition fire on the debtor’s ...
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MEMORANDUM OPINION Presently before this Court is the Trustee’s Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment. The legal issue is whether the Debtor’s payment of the deposit to the Defendant constitutes a voidable preference, under § 547 of the Code. Based upon the character of the transaction in question, this Court finds that the Defendant’s deposit did not co...
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MEMORANDUM DECISION Creditor Ernest Schleuning III sold a 1977 Peterbilt truck tractor to Debtors Donald and Carolyn Doyen pursuant to an agreement executed May 24, 1985. The agreement granted a security interest to Schleuning in the truck. During the week of May 27, 1985, Schleuning took the certificate of title and the agreement to the Pennington County Register of Deeds to have the lie...
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MEMORANDUM DECISION Introduction This matter is before the Court on a motion for approval of Bankruptcy Code Section 506(b) fees and costs filed on behalf of The Equitable Life Assurance Society of the United States (“Equitable”) by Attorney Roger W. Damgaard of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota. Attorney J. Bruce Blake, on behalf of Harley...
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Claude S. Hill, debtor in possession, asks the court to void any lien defendant Robert Marcella claims against certain stock certificates and $610.00 cash in the custody of the United States Marshal for the Southern District of New York. Hill contends a prejudgment levy obtained by Marcella expired because Marcella failed to commence a “special proceeding” extending the life of the levy. N.Y.Civ.P...
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MEMORANDUM OPINION Hilyard Drilling Company, Inc., (Hilyard) filed a voluntary petition for relief under the provisions of Chapter 11 on the 24th day of January 1985. On April 25, 1979, Hilyard Drilling Co. executed and delivered to National Bank of Commerce of El Dora-do (NBC) a security agreement which granted to NBC a security interest in all accounts receivable of Hilyard then existin...
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MEMORANDUM OF DECISION This amended complaint, filed on behalf of Promower, Inc., and Morton Faller, Chapter 7 trustee, against numerous members of the Scuderi family and their wives, seeks compensation for one of the most egregious violations of the stay of § 362(a) that the court has encountered. The complaint is in three counts, two of which, pertaining to an injunction, are now moot. ...
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OPINION REMAINDER INTEREST AND PROPERTY OF THE ESTATE The trustee, Richard C. Remes, asks the Court to declare the life estate of Bertha Robison invalid. Alternatively, the trustee requests the debtor’s interest as remainder-man be recognized as property of the estate and that he be permitted to sell the property. Defendant Bertha Robison denies the trustee’s allegations and prays this Court ...
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ORDER DISMISSING THIRD-PARTY COMPLAINT This matter came on for hearing on November 27, 1985, on the motion of the third-party defendant, John Peterson, for dismis *590 sal of the third-party complaint filed by the defendant, John Borreson. Pursuant to Bankruptcy Rule 7012 and Fed.R.Civ.P. 12(b)(1) and (6), Peterson asserts that this Court lacks subject matter jurisdiction and...
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ORDER The Defendants filed a motion for summary judgment contending there is no genuine issue of material fact in this action and they are entitled to judgment as a matter of law. The Plaintiff resists the motion. Hearing was held on January 8, 1986, after notice to all parties in interest. The Plaintiff Debtor commenced this action to set aside as a preference, a Deed of Trust given to the D...
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CORRECTED OPINION The debtor-in-possession, Bygaph, Inc. (“Bygaph”), seeks an order of this court permitting it to assume and assign a lease and to sell the furniture, fixtures, and equipment located on the premises pursuant to §§ 363(f) and 365 of the Bankruptcy Code, 11 U.S.C. §§ 363(f), 365 (1984) (the “Code”). The motion is opposed by 2160 Broadway Corp. (the “Landlord”), by Border Ca...
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DECISION ON MOTION FOR AN ORDER PURSUANT TO 11 U.S.C. § 365(a) AUTHORIZING ASSUMPTION OF LEASE AND FOR EXTENSION OF TIME TO ASSUME LEASE Officers And Services of Summer Street, Inc., one of the debtors in this consolidated Chapter 11 case, seeks an order pursuant to 11 U.S.C. § 365(a) authorizing its assumption of a lease for office space located at 999 Summer Street, Stamford, Connecticu...
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MEMORANDUM AND ORDER This Order addresses whether Production Credit Association of Fargo (PCA) has a valid lien in the Debtors’ 1984 crop. This question, although touched upon in several previous hearings and orders, has not been directly at issue until now. On November 4, 1985, and November 6, 1985, the Debtors, Merlyn & Delores Ya-gow, by separate Motions sought leave to use cash c...
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MEMORANDUM OPINION The matter presently before the Court is Mellon Bank’s claim to the proceeds from the sale of certain motor vehicles. Mellon Bank claims a security interest in the proceeds of the sale, although the Certificates of Title do not indicate the existence of any liens. Based on the following discussion, the Court finds that Mellon Bank is not entitled to payment from the proceeds of ...
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DECISION AND ORDER ON APPLICATION FOR COMPENSATION BY ATTORNEY FOR DEBTOR IN POSSESSION Heard on the application of Robert Res-nick, Esq., of the firm of Cullen & O’Con-nell, for compensation in the amount of $16,795 for services rendered as counsel for the debtor. The applicant previously received a retainer of $10,000 and he is seeking an additional $7,015.62. In this case, the Cha...
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MEMORANDUM OPINION On August 23, 1983 Channel Industries Gas Company (“Channel”) filed an inter-pleader in this Court and deposited the sum of $122,295.31. Additional funds have been deposited by Channel since the initial filing of the interpleader. On September 6, 1983 InterFirst filed a complaint for turnover against Channel and against PMI Gathering Service, Inc. (“PMI”). On October 17, 1983 t...
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*138 MEMORANDUM OPINION This matter again comes before the Court on a hearing pursuant to 11 U.S.C. § 1125(b) to approve an amended disclosure statement of the debtor, Ronald L. Pecht. There was a previous hearing on September 20, 1985 to approve a disclosure statement, which statement this Court declined to approve by its Memorandum Opinion and Order of October 8, 1985, 58 B.R. ...
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MEMORANDUM OPINION AND ORDER The issue before the Court is whether the motion to transfer or dismiss this case for improper venue should be granted. On or about December 15, 1981, Pikeville National Bank and Trust Company (“PNB”) of Pikeville, Kentucky made a loan to the Debtor, Coalfield Development, Inc. (“Coalfield”), and Jimmy Dale Ratliffe, then president of Coalfield, in the amount of $...
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MEMORANDUM OF DECISION This case came before the court for trial upon three separate complaints, all dealing with the same action on the part of debtor, Richard Earl Edwards (“debtor”), and his present spouse, Judith A. Edwards (“current spouse”). Margaret McCarthy, Personal Representative of the Estate of Gise-la Edwards, a former spouse of the debtor (“the Estate” or “former spouse”), objects...
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DECISION AND ORDER On January 17, 1985 Willard Sluss and Mary Sluss, husband and wife, filed a petition in bankruptcy under Chapter 7 of the Bankruptcy Code. On April 26, 1985 the trustee in bankruptcy filed a complaint seeking to sell three tracts of real estate, which were listed in the Sluss’ petition, free and clear of all liens and the interests of any co-owners pursuant to 11 U.S.C. § 363...
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DECISION ON MOTION FOR RECONSIDERATION Heard on motion to reconsider our October 2,1985 order, wherein John F. Cuzzone, Jr., Esq., attorney for a secured creditor Joseph A. Sullivan, was awarded attorneys’ fees of $500, plus expenses of $4.00. Steven H. Orabone, Esq., who appeared on Mr. Cuzzone’s behalf at the September 5, 1985 hearing, was unable to describe to the Court the nature of t...
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MEMORANDUM AND ORDER This is an adversary proceeding to determine the nature and extent of Farmers Home Administration’s secured claim, to avoid an unperfected security interest and to avoid post-petition transfers. The plaintiffs have filed a motion for summary judgment. The parties have stipulated there are no genuine issues of material fact involved and have requested the court to decide the...
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MEMORANDUM The issue presented is whether a mul-tiemployer pension plan’s withdrawal liability claim is entitled to administrative expense priority. On peculiar facts and for the reasons stated below, the withdrawal liability claim must be apportioned between pre- and post-petition liability. The post-petition portion of the claim, when ultimately fixed in amount, may be entitled to admin...
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MEMORANDUM OPINION AND ORDER GRANTING DEBTOR’S MOTION FOR SUMMARY JUDGMENT Defendants KENNETH B. WOLMER and MARY ELLEN WOLMER (“debtors”) moved to Strike and Dismiss the Complaint or alternatively for Summary Judgment on the complaint of BARTLETT BANK & TRUST COMPANY (“Bank”). That Complaint objected to discharge of debtor defendants. For reasons set forth below, that motion is grant...
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FINDINGS OF FACT, MEMORANDUM AND ORDERS RE: TRUSTEE’S OBJECTION TO CLAIMED EXEMPTIONS. Sitting by Designation. This proceeding concerns the entitlement of the Debtor to claimed exemptions of his interest as an employee m a retirement fund and a profit sharing plan. The Trustee has filed objections to the exemptions claimed. Having reviewed the record and the briefs submitted, the Cou...
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ORDER AVOIDING JUDICIAL LIEN Debtor has moved to recover $280.78 in wages garnished by respondent, Montgomery Ward & Company (“Ward”), a judgment creditor, within ninety (90) days of the filing of the voluntary Chapter 7 petition. The alternative grounds for relief cited are the debtor’s right to avoid exemption-impairing judicial liens under 11 U.S.C. § 522(f)(1), and the debtor’s right ...
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ORDER DENYING PLAINTIFF’S “MOTION FOR PARTIAL RECONSIDERATION OF COURT’S ORDER OF DECEMBER 17, 1985, GRANTING JUDGMENT OF DISMISSAL WITHOUT PREJUDICE TO STATE COURT PROCEEDINGS” Formerly, on December 17, 1985, this court dismissed the plaintiff’s complaint for a decree of nondischargeability with respect to alleged obligations in the nature of alimony, support or maintenance without *512 prej...
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The debtors, Market Square Associates, Ltd. (“Market Square”) and Chestnut Grove Associates, Ltd. (“Chestnut Grove”) (Collectively the “Debtors”), both of which are Pennsylvania limited partnerships, each filed a petition for reorganization under Chapter 11 of the Bankruptcy Code on November 12, 1980. Thereafter, and on May 4, 1981, the Debtors instituted this adversary proceeding against Commonwe...
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MEMORANDUM-DECISION AND ORDER This adversary proceeding was filed by the trustee seeking declaratory relief that the defendant insurance companies, National Casualty Co. (“National”) and United National Insurance Company (“United”) honor the fire loss claims of their respective insureds, defendants Edward W. Collins and Pamela Murray, as Trustees for the benefit of the Stockholders of CoMur Enter...
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ORDER GRANTING UNITED STATES TRUSTEE’S MOTION TO CONVERT CASE TO CHAPTER 7 After hearing on August 9, 1985, the parties submitted proposed findings of fact and conclusions of law1 regarding a motion to convert filed by the United States Trustee, pursuant to 11 U.S.C. § 1112. Upon consideration of the entire record, we are in general agreement with the proposed findings of fact submitted by *195th...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On October 1,1985, an order was entered denying defendant Jerome Kaplan’s Motion to Extend Time within which to file an objection to plaintiff’s Motion for Summary Judgment.1 Our rationale for denying the *226Motion to Extend Time is set forth briefly below.2 On July 7, 1982, the trustee commenced the instant adversary proceeding to set aside alleged fraudu...
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ORDER The plaintiff, American Living Systems, Inc. (“ALS”), initiated this adversary proceeding against the defendants, Paul Bo-napfel (“Trustee”), as Trustee for All American of Ashburn, Inc. (“All American”), Sharon and Jennifer Lambert (“Lam-berts”), James Harward and Holiday Homes of Georgia, Inc., on August 12, 1985, by filing a complaint for injunctive and declaratory relief, rescis...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT ORDER THEREON After trial of this adversary case, the Court having taken evidence and testimony and considered all evidence admitted and the arguments of counsel, the parties having rested and proceedings being closed, this Court now makes and enters the following Findings of Fact and Conclusions of Law: Findings of Fact 1...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO STRIKE THIRD AMENDED COMPLAINT This cause comes before the Court on the Motion of ANDREW B. DOPPELT (“debt- or”) to strike the Third Amended adversary Complaint filed by CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO (“Continental”) and to dismiss the suit. That Complaint sought to have a large judgment recovered against debtor dec...
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FINAL JUDGMENT OF DISMISSAL OF ADVERSARY ACTION This is an action brought by the plaintiff insurance company for a declaratory judgment to the effect that it is not liable on liability insurance policies issued to the debtor Titan Energy, Inc., and for a decree rescinding those policies. It is alleged that the plaintiff issued seven “products guarantee liability insurance policies” to the...
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DECISION AND ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT ROBBINS’ MOTION FOR DISMISSAL AND DENYING DEFENDANT NYWD’S MOTION FOR JOINDER OF WILLIAM LO AND FOR LEAVE TO SERVE A THIRD-PARTY COMPLAINT On September 14, 1983 involuntary petitions under Chapter 7 of the Bankruptcy Code were filed against Join-In International (U.S.A.) Limited (“Join-In”), Republic Sportswea...
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DECISION AND ORDER On July 8, 1985, Municipal Credit Union (hereinafter “Plaintiff” or “MCU”), commenced this adversary proceeding against Mrs. Estelle V. Brown, (hereinafter “Debt- or” or “Defendant”), in an effort to obtain a determination that the debt owed it by the Debtor was not dischargeable pursuant to Bankruptcy Code § 523(a)(2)(B), 11 U.S.C. § 523(a)(2)(B) and Bankruptcy Code § ...
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*547 DECISION ON APPLICATIONS FOR FINAL COMPENSATION The task of ascertaining appropriate and reasonable fees for legal services performed in a bankruptcy case is often more difficult and time consuming in those instances when the trustee in bankruptcy acts as his or her own attorney, or where the trustee is employed by the law firm seeking such allowance. In this case, Miriam Te...
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MEMORANDUM OPINION This matter came on to be heard and was heard on November 22, 1985, on the motion of Sydney LeBrun, Examiner, and Robertson, Neal & Company, (hereinafter, “Accountants”), certified public accountants, to recapture funds paid by the Debtor in the Chapter 11 reorganization case prior to conversion to a Chapter 7 liquidation. Le-Brun and accountants requested that the Cour...
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OPINION This matter comes before the Court on the defendant’s motion for summary judgment in a preference action brought by the Trustee. The defendant acknowledges receipt of four (4) payments from the debtor during the ninety (90) days preceding the filing of the bankruptcy. However, the defendant claims that these transfers are not avoidable by the Trustee because they fall within the e...
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MEMORANDUM OPINION The matter before the Court is the Debtors’ Motion to Avoid Lien Impairing Ex *185 emptions relating to various household and consumer debts which the Debtors aver are non-possessory, non-purchase money security interests, held primarily for personal, family or household use. In response thereto, the Defendant avers that their claim is secured by a Security Agreement an...
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MEMORANDUM AND ORDER This proposed reorganization under Chapter 13 presents the curious spectacle of a debtor who demands the right to make payments to a creditor who insists that the debt no longer exists because it is not a “claim” as defined in 11 USC Section 101(4). The adversaries’ tergiversation arises because the creditor is a bank that holds a mortgage on the debtor’s residence, w...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction — The above-styled case was commenced in, and is pending before, this Court under title 11, chapter 13, United States Code, having been commenced by the debtor’s petition filed November 8, 1985. The procedure of this case toward a confirmation hearing before the bankruptcy judge, on March 18, 1986, has been interrupted by a creditor’s mot...
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MEMORANDUM OPINION On January 9, 1985, Marshall Ramey filed a voluntary petition for relief under the provisions of Chapter 7 of the Bankruptcy Code. Mr. Loyal Barr was appointed trustee and filed his report of no distribution on March 13,1985. On May 8,1985, the debtor filed a complaint to determine the dischargeability of certain debts owed to Merchants and Farmers Bank of West Helena (...
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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 the assertion of several claims by Hallmark Builders, Inc. (Debtor) against Eastern Development Consolidated, Inc. (EDC) and Terry Cypher (Cypher). The claims are presented by the Debtor in a Complaint consisting of four Counts. The claim in Count I is based on an alleged bre...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS an involuntary Chapter 7 case which was filed against Dana Sjostedt. The involuntary petition was filed on October 26, 1983 by two petitioning creditors, Edwin B. Salmon (Salmon), Jr. and Alpha Three, Inc. (Alpha). Subsequently, three additional creditors joined the petition: Lewis Stahlman on November 28, 1983; Mary Lu Dixon on December 20, 1983; an...
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OPINION AND ORDER This matter came before this court on the objection of the debtor and of Dresser Industries, Inc., to the appointment of a representative of J.E. Lonergan Company and Control Specialties, Inc. to the creditors’ committee in the above-referenced case. The basis of the objection is that the prospective appointees are business competitors of the debtor, therefore creating a confl...
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INTRODUCTION On July 8, 1985 various alleged creditors of Ralph Spigener and A.W. Baker filed this “Petition for Involuntary Bankruptcy”. In their Petition, these creditors alleged that they are holders of matured promissory notes, currently due, co-signed by the alleged debtors. The original petitioning creditors are as follows: NAME AMOUNT Vickie Bailey and Bobby Simpson $ 79,000 Jerry ...
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This matter was originally heard on oral arguments at a hearing on August 9, 1985. Appearing on behalf of the debtor was Michael W. Heavey of Dwyer, Pohren, Wood & Heavey, Omaha, Nebraska, and appearing on behalf of the moving party, Norwest Bank of Norfolk, N.A., was Doug *71 las E. Quinn of Thompson, Crounse, Pieper and Quinn of Omaha, Nebraska, and Thomas Locher of Om...
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DECISION DENYING DEFENDANT-OHIO PUBLIC EMPLOYEES DEFERRED COMPENSATION PROGRAM’S MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFF-TRUSTEE’S COMPLAINT FOR TURNOVER, AND GRANTING DEFENDANT-DEBTOR’S CLAIMED EXEMPTION PROCEDURAL POSTURE This is a case arising under 28 U.S.C. § 1334(a) and having been referred to this court is determined to be a core proceeding under 28 U.S.C. § 157(b)(2)(A...
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MEMORANDUM OPINION The matter presently before the Court is the Trustee’s Complaint to Compel Turnover of Assets, Set Aside Fraudulent and/or Preferential Transfer, and to Compel Accounting. The issue before the Court is whether the Debtor’s return of consigned goods to the consignor within ninety days before filing a bankruptcy petition constitutes a preferential transfer. For the reasons here...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case, originally commenced as a Chapter 11 case but due to the Debtor’s inability to achieve confirmation was converted to a liquidation case. The matter under consideration arose in an adversary proceeding commenced by the Debtor-in-Possession during the pendency of the reorganization. After conversion of this case to a...
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ORDER DENYING REHEARING AND OVERRULING OBJECTIONS TO APPLICATION FOR DISBURSEMENT OF FUNDS Two creditors with claims in the aggregate amount of $81,481 have objected (C.P. No. 266) to the trustee’s application (C.P. No. 255) as amended (C.P. No. 259) to disburse the proceeds of a final award *34 made by the Iran-United States Claims Tribunal in favor of this debtor. On the premise that the fu...
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ORDER Verna Frederickson is the former spouse of the defendant and the mother of four of his children. She has brought a complaint to determine the dischargeability of a debt. This matter was submitted to the court on briefs 1 and stipulated facts; it was taken under advisement June 13, 1985. The parties were divorced on November 19, 1965, in Nebraska. The divorce decree required Coleman to...
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ORDER AND FINDINGS OF FACT AND CONCLUSIONS OF LAW RELATIVE TO OBJECTIONS TO SECURED CLAIM OF GULF NATIONAL BANK AND REQUEST FOR SUBORDINATION OF CLAIM BY UNSECURED CREDITORS COMMITTEE OF CENTURY INNS, INC., SAGE CONSTRUCTION COMPANY, INC. AND GOVERNMENT STREET LUMBER COMPANY, INC. This matter came on for Trial on the objections to the granting and allowance of *509 a secured ...
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MEMORANDUM OPINION AND ORDER RE MOTION FOR RELIEF FROM AUTOMATIC STAY FILED BY CONGRESS FINANCIAL CORPORATION, INC. This motion for relief from stay filed by Congress Financial Corporation, Inc., was heard on November 5 and 6, 1985. Decision The motion for relief is granted pursuant to § 362(d)(1) for cause. Findings of Fact 1. McMartin Industries, Inc., is a manufacturer of electro...
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DECISION ON MOTION TO EXPUNGE LIEN CLAIMS This is an adversary action to declare that the proposed sale of this Chapter 13 debtor’s residential property originally held by the debtor, Dolores Rouse, and her non-debtor husband, Arthur Rouse, as tenants by the entirety, and now held by the debtor in fee simple, be declared free and clear of certain liens filed against the husband alone while he hel...
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DECISION ON APPLICATION FOR DENIAL OF DISCHARGE OR IN THE ALTERNATIVE TO HAVE A DEBT DECLARED NONDISCHARGEABLE The plaintiff, Scarsdale National Bank and Trust Company (“Scarsdale”), com *993 menced this adversary proceeding against Jay L. Switzer, a Chapter 7 debtor, for the purpose of barring his discharge under 11 U.S.C. § 727(a)(3) and (5) or, in the alternative, for a de...
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*175 MEMORANDUM OPINION This cause came on for consideration on the final Motion for Allowance of Fees for legal services and expenses incurred by James H. Beck, Esq., and the firm of Beck & Vaughn as counsel for the Debtor-in-Possession. Counsel has attached to its Motion detailed recitations of the services and expenses on behalf of Debtor-in-Possession from June 6, 1985 throug...
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MEMORANDUM OPINION On October 28, 1985 the court held a hearing to value the security interest held by the Federal Land Bank (FLB) in the farm and improvements owned by the debtors. The debtors were represented by Laura J. Walker and FLB was represented by Bradley O. Baker. The parties disagree upon the standard to be followed by the court in determining the value of the security interest hel...
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FINDINGS AND ORDER This adversary proceeding is before the Court on debtor-plaintiffs’ complaint to set aside a mortgage deed voluntarily conveyed by debtors to the defendant within 90 days of the filing of debtors’ Chapter 7 petition. Debtors assert that the granting of a mortgage deed within 90 days is a preference within the ambit of 11 U.S.C. Section 547 or, in the alternative, an imp...
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DECISION Before this court is a twofold application filed by University Avenue Properties, University Hill Plaza and Hill Street Properties, all of which are limited partnerships (collectively referred to herein as “debtors”) seeking: (1) to set aside the confirmed sale of the University Hill Plaza Shopping Center to BDB Investors (“BDB”), a general partnership, and (2) to remove Opitz Realty, ...
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OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY In this court’s order of November 20, 1985, the pleadings were settled in this adversary proceeding, and provided for the trial on November 22, 1985. See this court’s order filed November 20, 1985. Count I of the complaint, adopted by reference from the state civil proceeding in Elmore County, Alabama, and numbered Case No. CV-83-438 in that state...
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ORDER Before the Court are the Debtor’s motion for relief from this Court’s order of October 19, 1984, and the opposition to the Debtor’s motion. The opposition was filed by several individuals who are plaintiffs in a case now scheduled for trial in D.C. Superior Court on January 30, 1985 (“the Superior Court case”). The Superior Court case involves multiple parties and claims and cross-claims....
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ORDER ON MOTION FOR SUMMARY JUDGMENT In 1974 the Florida Legislature established a special taxing unit known as the Crews Lake Road and Bridge District (District). The District was established for the purpose of creating a tax base in order to service a bond issue sold to the public. The funds derived from the sale of the bonds were to be used for the construction of roads and bridges and improve...
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FINDINGS OF FACT AND CONCLUSIONS OF LAV Upon a trial held in this cause, the Court makes the following findings of fact and conclusions of law. *30 Findings of Fact The facts are essentially undisputed. The debtor is the wholly owned subsidiary of Industrial America Corporation, which is itself a Chapter 7 debtor. The defendant, Arthur Young and Company, perfor...
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ORDER The Federal Land Bank of Louisville has applied for relief from the automatic stay or for adequate protection of its contractual rights. The Lipplys contend that the bank is adequately protected by a significant equity cushion and that ‘cause’ for relief from stay is not present. The parties have submitted the matter to the court on briefs and stipulated facts; it was taken under ad...
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MEMORANDUM AND DECISION This proceeding was initiated by a motion of the trustee objecting to several claims made against the debtor’s estate. Specifically, the claims objected to by the trustee were claims numbered 16,18, 22, 23, 24, 25, 42, 45, 48, 49, 56, 58, 59, 65, 66, 67, 71, 73, 78, 79 and 81. Claims numbered 16, 65, 66, 67 and 73 were either allowed, compromised or adjourned prior to or du...
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MEMORANDUM OPINION AND ORDER The Plaintiffs, James A. and Frances A. Hasbrouck, commenced the instant adversary proceeding seeking recovery of a real estate down payment alleged to be non-dis-chargeable by virtue of section 523(a)(2)(A) of the Bankruptcy Code. The case was tried on November 20, 1985. The only remaining Defendant is Robert L. Valeu, the other Defendants having been dismiss...
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MEMORANDUM OPINION This matter is before the Court upon Defendant Carnegie Auto Body’s Motion for Summary Judgment in the above-captioned adversary proceeding. The Motion for Summary Judgment is sustained in part and overruled in part. A trial shall be set *978 on the issues determined herein to be in question. PACTS Although some factual matters in this case are in...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the plaintiff, Virginia Union University (“Virginia Union”), to terminate the automatic stay of 11 U.S.C. § 362 in order to attempt collection of funds owing by the defendant, Elnora Parham (“Par-ham”), due to student loan obligations. Parham filed a counterclaim for civil contempt against Virginia Union for its failure to r...
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Background On April 15, 1985 Randbre Corporation (“Debtor”) moved to expunge a claim filed by Michael Ladney, Jr. (“Ladney”). No response was made to the motion. Thereafter an order was entered on June 6, 1985 expunging the claim. Ladney, reacting to a complaint seeking injunctive relief, now brings this motion for relief from that order, pursuant to Fed.R.Civ.P. 60(b) and Fed.R.Bankr....
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE AND JUDGMENT DENYING THE DEFENDANTS’ DISCHARGES IN BANKRUPTCY The plaintiff Farmers Home Administration seeks denial of the defendants’ discharges in bankruptcy on the ground that they have failed to obey orders of the bankruptcy court within the meaning of section 727(a)(6)(A) of the Bankruptcy Code. 1 The action came on for trial before ...
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