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All Reporters → bankr-lexis → Volume 1988

Opinions in bankr-lexis Volume 1988

MEMORANDUM OPINION This matter is before the Court on Motion for Relief from the Stay filed by the Creditor, with regard to the Debtor’s 1983 Nissan station wagon automobile which was financed by the Creditor and repossessed prior to the filing of the Debtor’s Chapter 13 case. The Court makes the following Findings of Fact: FINDINGS OF FACT The Creditor has a properly perfected ...
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DECISION and ORDER IN § 707(b) MATTER This case came to the attention of the court upon the submission to us for signature of an agreed entry which would allow debtors to assume an unexpired lease on a 1987 Chrysler New Yorker. The proposed entry led us to review the file. The statement of affairs shows that both debtors are employed and had a combined income of upwards of $50,000.00. They listed ...
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OPINION AND ORDER The facts in this case are straightforward and not in dispute. The Debtor and his wife held property in joint tenancy. The wife died and title to the joint tenancy property passed to the Debtor. The Debt- or then filed bankruptcy, and pursuant to Ill.Rev.Stat. ch. IIOV2, Para. 15-1 (1985), claimed an exemption of $10,000.00 from the joint tenancy property. The Debtor cites ...
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MEMORANDUM OPINION Presently pending before this Court is the Rule 12(b)(6) motion of debtor-defend *321 ant Harry F. Tucci (“debtor”) to dismiss a complaint filed by creditor Boyertown Data Systems, Inc. (“plaintiff”). Plaintiffs complaint requests that we revoke debtor’s discharge because debtor did not provide this Court with a set of stipulated facts on a pending 11 U.S.C. § 362 motion. S...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on to be heard upon the trustee’s claim for fraudulent transfer and turnover of certain assets pursuant to 11 U.S.C., § 544(b) and further upon the complaints filed by the creditors, Yacht Investors, Inc., Burns Craft S.E. Corp., and Burns Craft N.E. Corp. (“the creditors”) and the debtor’s spouse seeking to prevent the debtor’s discha...
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AMENDED MEMORANDUM DECISION I. This matter comes before the court upon the motion of the debtor for leave to amend its complaint in the adversary proceeding filed herein against SK Management Co., et al. (“SK Management”), pursuant to Fed.R. Civ.P. 3, and defendants’ cross-motion for abstention pursuant to 28 U.S.C. § 1334(c)(2). The issues raised by the parties and addressed herein ...
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MEMORANDUM AND OPINION This matter is before the Court pursuant to Federal Rule of Civil Procedure 12(b)(6), on Defendant/Debtor’s, (“Hoffman’s), motion to dismiss Marine Bank Southwest’s, (“the Bank’s”), complaint to determine whether the debt owed to it by Hoffman should be excepted from discharge. For the reasons set forth herein, Hoffman’s motion to dismiss is denied. FACTS ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon a complaint of The Bank of Coral Gables (the Bank) seeking to except from discharge the debtor’s debt to the Bank pursuant to 11 U.S.C. § 523(a)(2)(B), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of ...
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MEMORANDUM OPINION AND ORDER On November 30, 1987, three limited partners (hereinafter “petitioners”) of Royal Gate Associates, Ltd. (hereinafter “Royal Gate”) filed an involuntary Chapter 11 petition against the partnership. The three petitioners hold no claims against Royal Gate other than their limited partnership interests. On December 1, 1987, the Mov-ant, Broadview Savings Bank (her...
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FINDINGS OF FACT, CONCLUSIONS OF LAW and MEMORANDUM OPINION This is a Chapter 7 case and the matter under consideration is a claim for relief filed by Paul F. Miller and his wife, Myrtle Bernice Miller (Debtors), the Plaintiffs who instituted this adversary proceeding. The Debtors seek a determination by this Court that the Defendants named in the adversary proceeding, Charles R. Mayer (M...
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MEMORANDUM OPINION Presently before the Court is a judgment creditor’s Motion To Dismiss Debtor’s Chapter 11 petition, alleging bad faith in the filing. Specifically, he contends that the Debtor filed its bankruptcy petition as a litigation tactic, allowing the automatic stay to operate as a stay pending appeal of a certain District Court action. Debtor asserts that the filing ...
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MEMORANDUM OPINION This matter is before the Court on Plaintiff’s Complaint objecting to the Debtor’s discharge pursuant to 11 U.S.C. § 727. A trial was held at which evidence was adduced, argument of counsel heard, and the matter then taken as submitted. The issues in this case now having been duly considered by the Court, the following findings and conclusions are entered. Marilee Christenson, P...
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MEMORANDUM The matter before the Court is the Adversary Complaint filed on May 20, 1987 by the Disbursing Agent of First Software Corporation (“First Software”) against Curtis Manufacturing Co., Inc. (“Curtis”). Pursuant to 11 U.S.C. § 547(b) (West 1987), First Software seeks from Curtis the recovery of a preferential payment totalling $22,580.44. Curtis admits that First Software has est...
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MEMORANDUM OPINION AND ORDER The matters before this Court in the Chapter 7 Bankruptcy case of John and Terri Lattimore are the Debtors’ Motion to Compel Abandonment and Damages and the Trustee’s Motion to Compel Debtors’ Cooperation. In essence, the Debtors and the Trustee are involvéd in a dispute as to the interest of the estate in various assets. These matters were set for hearing, at which...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon a complaint to Determine the Validity, Priority and Extent of Liens in Real Property, against defendants, William Roemelmeyer, Trustee (“trustee”), Jorge Orta, Ortelio Marcelo, and Lakeside Green Patio Homeowners Association, Inc., (“Lakeside”), pursuant to 11 U.S.C. § 548(c) and Bankruptcy Rules 7001(2) and (9)....
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on the debtor’s attempt to prevent the Internal Revenue Service from collecting from him individually post-petition interest on certain tax claims which were previously paid in full by his trustee in bankruptcy. This matter has followed a tortuous procedural course in reaching this point, however, the issue has been joined and briefed...
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ORDER ON OBJECTION TO EXEMPTION THIS MATTER is before the Court on the Trustee’s Objection to the Exemption claimed by these Chapter 7 debtors of their interest in pension and profit sharing plans sponsored by their employer. Both debtors are employed by Centel, and as such are participants in the Centel Employees’ Stock Ownership Plan (ESOP). The Plan is a qualified plan under the Employee R...
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MEMORANDUM AND DECISION This is an application for an Order approving compensation and reimbursement. The question raised is whether the applicant (“Currie”) should be remunerated as an administrative claimant despite having failed to acquire Court approval for his employment. The Watkins Glen Grand Prix Corporation (the “Debtor”) filed for relief under Chapter 11 of the Bankruptcy Code on Au...
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DECISION ON MOTION FOR AN ORDER FIXING TIME TO ASSUME OR REJECT AN EXECUTORY CONTRACT Harry Lorayne, the president of Harry Lorayne, Inc. (“Lorayne”), is an author of two books published by the debtor, Stein & Day, Incorporated, pursuant to two written publishing agreements. Lorayne has moved for an order fixing a date by which the debtor must assume or reject the publishing ag...
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MEMORANDUM AND ORDER Before the Court are a motion to dismiss by defendants Boyle and Alterman 1 and plaintiff’s cross-motions for abstention or alternatively for summary judgment. Background It appears that in January 1980 plaintiff and Alfred E. Jones (who apparently was at that time plaintiff’s husband) purchased property at 129-15th St., S.E. from defendants B...
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MEMORANDUM AND ORDER The Small Business Administration (the “SBA”) has filed a Motion for Lien Determination and Order for Distribution. 1 The motion alleges that the SBA has a first lien upon all personal property of Data Entry Service Corp., Inc. (the “Debtor”), including the proceeds thereof. This is a core proceeding under 28 U.S.C. § 157(b)(2)(K). FACTS On Octobe...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing on the application of Klingsmith & Associates, P.C. (“K & A”), attorneys for Flying E Ranch Co., debtor-in-possession (“Flying E”), for payment of interim fees in this Chapter 11 case. Objections to the application were filed by the Ninth District Production Credit Association (“PCA”). The record before this Court from the ...
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AMENDED MEMORANDUM OPINION AND ORDER 1 This matter comes to be heard before the Court on the motion for summary judgment combined with a memorandum in support of plaintiff’s motion for summary judgment filed by Manuel Corrasco (“Cor-rasco”) by and through his attorney Stephen J. Costello and the law firm of Costello & Costello and on response to the motion for summary judgment fil...
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*172 MEMORANDUM AND ORDER This matter came before the Court on the claim of Shadow Lawn Savings and Loan Association (“Shadow Lawn”) and the objection thereto filed by the Debtor. In view of the absence of the Debtor’s counsel at the time of the scheduled hearing, and there being no objection either by the Debt- or (who was present) personally or by counsel for Shadow Lawn, the C...
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OPINION This matter came on for hearing on motion for summary judgment by the debtor-plaintiff, Major Mud & Chemical Co., Inc. asking this Court to bar a proof of claim by the Internal Revenue Service as untimely. The Service maintains that the claim was an allowable amendment to a timely filed claim, or alternatively that there is a fact question which precludes summary judgment. Fo...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This matter comes before the Court on cross-motions for summary judgment filed by the Defendant Denver Coca-Cola Bottling Company (“Coke”) and the Plaintiff Matthew D. Skeen, as the Trustee and successor-in-interest to the Debtor Feyline Presents, Inc. (“Feyline”) in the above adversary proceeding. The Trustee herein filed his First Amended Compl...
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MEMORANDUM AND ORDER Before the Court is a motion by the Debtor’s Landlord 1 for relief from the automatic stay imposed by 11 U.S.C. Section 362(a), so that the Landlord may institute proceedings to collect claimed rental accruals and arrears and to evict the Debtor from its premises, and so that the Landlord may repossess personal property consisting of restaurant equipment th...
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DECISION ON MOTION BY CHASE MANHATTAN BANK FOR RELIEF FROM AUTOMATIC STAY On January 12, 1988, precisely nine months after Texaco Inc. and its two financial subsidiaries filed with this court on April 12, 1987 their jointly administered petitions for reorganizational relief under Chapter 11 of the Bankruptcy Code, a hearing was held with regard to the motion by Chase Manhattan Bank (“Chase”) fo...
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MEMORANDUM OF OPINION AND ORDER The above-styled case is before the Court on an objection by First Bulloch Bank & Trust Company (“First Bulloch”) to the debtor’s Motion to Approve a Settlement and Compromise with Construction Casting Company, Inc. (“Construction Casting”). First Bulloch and Construction Casting filed briefs in support of their respective positions and the parties filed a Joint St...
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MEMORANDUM A bank holding a security interest in the inventory of a car dealer seeks to extend its security to vehicles which have been consigned by their owners to the dealer for sale. Presented is a question of statutory construction involving considerable tension between Articles 2 and 9 of the Uniform Commercial Code. After a trial and submission of memoranda of law by the parties, th...
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ORDER ON AMENDED APPLICATION TO APPROVE COUNSEL The within Chapter 11 case was filed in June, 1987. Shortly thereafter, an application was submitted on behalf of the Debtor-in-Possession to employ the law firm of Koransky, Friedman & Cohen, P.C. (“the Firm”) as counsel for the Debtor-in-Possession. The application filed stated that to the best of its knowledge the Firm had “no connection ...
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ORDER GRANTING MOTION TO DISMISS CASE This matter came before the Court upon Weiss Investments, Ltd.’s (“Weiss”) Motion to Dismiss Forest Activities’ (the “debtor”) bankruptcy case under 11 U.S.C. § 1112 based upon the debtor’s lack of good faith in filing its voluntary petition under Chapter 11 of the Bankruptcy Code. On December 21, 1987, the Court conducted an evi-dentiary hearing on Weiss’ ...
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OPINION The instant matter requires us, as in In re Corbett, 80 B.R. 32 (Bankr.E.D.Pa.1987), to focus upon another of the difficult issues surrounding an effort by a debtor to avoid a sheriff’s sale of her home by means of 11 U.S.C. §§ 548(a)(2)(A) and (B)(i), which we discussed in our recently-affirmed decision in In re Butler, 75 B.R. 528 (Bankr.E.D.Pa.1987), ...
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*533 ORDER DENYING DEBTOR’S MOTION TO REJECT UNEXPIRED LEASE This Chapter 11 case came on before the undersigned United States Bankruptcy Judge on May 13, 1987, upon Debtors’ motion to reject an executory contract or unexpired lease with Thorson, Inc. (hereinafter “Thorson”), Debtors appeared personally and by their attorney, Michael R. Ruf-fenach. Thorson appeared by its attorne...
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DECISION Petitioners David E.W. Lines and Michael Jordan as Joint Provisional Liquidators of The River Plate Reinsurance Co., Ltd., (“River Plate”) seek an order declaring that a winding up proceeding commenced before the Supreme Court of Bermuda is a foreign proceeding and that they are foreign representatives of River Plate within the meaning of §§ 101(22), 101(23) and 304 of the Bankrup...
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MEMORANDUM OPINION This matter comes on upon the trustee’s motion for partial summary judgment filed on July 28, 1987, the memorandums of law of the respective parties and the argument of counsel. The issue raised by the trustee in the motion for partial summary judgment is whether or not the defendant, Valley Feed Company (hereinafter Valley Feed), properly perfected a security interest in the...
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MEMORANDUM OPINION AND ORDER This is an adversary proceeding brought by Joseph M. Flynn and Suz-Anne M. Flynn (“Flynns” or “plaintiffs”) for the use and benefit of Robert A. Fothergill, Trustee of the bankruptcy estate of Joe Flynn Rare Coins, Inc. (“Coin Company”) to recover alleged preferential transfers to and pre-petition set-offs by MidAmerican Bank and Trust Company (“Bank” or “MidA...
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DECISION AND ORDER This case involves the procedural aspects of contesting disputed claims alleged in support of an Involuntary Petition for relief under Chapter 7. The Court finds the claims of the petitioning creditors are subject to bona fide disputes, and therefore dismisses the Petition. FACTS An Involuntary Petition for relief under Chapter 7 of the Bankruptcy Code was filed on Decemb...
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OPINION ON TRUSTEE’S OBJECTIONS TO CLAIMED EXEMPTIONS The trustee has filed objections to the exemptions claimed by the debtor. The only matters of substance in the trustee’s objections are that there are or may be outstanding joint obligations of the debtor and his spouse which are unsecured. The debtor has claimed as exempt his interest in his dwelling owned with his spouse as tenants by th...
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MEMORANDUM ON THE FINALITY AND DISCHARGEABILITY OF PROPOSED MARITAL PROPERTY SETTLEMENTS IN BANKRUPTCY Ricky Lee Smith (“Ricky”), the debtor in this voluntary Chapter 7 case, filed a com *889 plaint for relief against his former wife, Vicki Lynn Smith (“Vicki”) under Bankruptcy Rule 4007(a)-(b) seeking a declaration of dischargeability under 11 U.S.C. § 524 and sanctions for ...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on motion of the debtors, Joel and Brigitte Ross, objecting to the claim of the Chicago Moving Picture Operator’s Union, Local 110 of the I.A.T.S.E. and M.P.M.O. Service Trust (“Union”). The facts are not contested. On July 26, 1985, the debtors filed a petition for relief under Chapter 11 of the Bankruptcy Code (11 U.S.C. 101 et s...
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MEMORANDUM OPINION I. Before me for determination is a motion for relief from the automatic stay. 1 This motion is filed by Murray S. Eckell, Esquire who is the state court appointed guardian of the estate of Sally Borbridge. By order of the Court of Common Pleas of Delaware County, Orphans’ Court Division, dated August 18, 1987, Ms. Borbridge was adjudged incompetent and ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of Attorney Roger T. Russell (Defendant) to Reconsider the Court’s Memorandum Opinion and Order of August 5, 1986 (Opinion). See In re Kleckner, 65 B.R. 433 (Bankr.N.D.111.1986). The Trustee, Attorney Joseph D. Olsen, represents himself. Attorney Roger T. Russell represents himself. This Memorandum Opinion and Ord...
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OPINION The movant here seeks a determination that its claim against the debtor is properly treated as a postpetition claim so that the automatic stay does not apply. In the alternative, the movant seeks modification of the automatic stay to allow it to assert its claim against the debtor in state court. I. The movant is Lavin Centrifuge, Inc. (“Lavin Centrifuge”) whose request ...
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MEMORANDUM OPINION AUTHORIZING PRESENTATION OF ORDER GRANTING CONFIRMATION OF CHAPTER 13 PLAN IN ACCORDANCE WITH DECISION This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administ...
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MEMORANDUM OF DECISION ON AMENDED MOTION FOR IMPOSITION OF SANCTIONS This court must decide whether it has jurisdiction over a motion for sanctions awarding attorney’s fees when its earlier decision concerning attorney’s fees under Code § 506(b) is on appeal to the District Court. I On June 27,1986, Wonder Corporation of America filed for protection under chapter *222 ...
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MEMORANDUM ORDER DETERMINING CLAIM NUMBER 38 This case came on for hearing on the debtor’s objection to claim number 38 filed by Centurion Company. James H. Levy appeared for the debtor. Robert R. Roos and Bradley R. Janzen appeared for Centurion Company. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding under 28 U.S.C. § 1...
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*184 ORDER The Debtor has filed a motion for extension of time in which to file a plan of reorganization. Like an almost identical motion filed by different counsel for a different debtor in the recently-decided case of Russell C. Hughes, No. 86-00331 (Order dated October 19, 1987), this motion exemplifies the frequent confusion by debtors and their counsel as to the precise import of certain...
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DECISION The plaintiffs 1 , former employees of Anthony Minesal (“Minesal” or “debtor”), have objected to his discharge based upon the following alternative grounds: 11 U.S.C. § 727(a)(2), (3) and (5). 2 A trial was held, and it was concluded on December 4, 1987. Minesal has been in the trucking business since 1949, primarily engaged in the hauling of dirt. He h...
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ORDER On September 4, 1987, the Court denied confirmation of the Debtor’s Chapter 12 Revised Plan on grounds the Plan was not feasible, the Plan failed to commit the net disposable income, if any, to payment of unsecured claims, and the Plan did not propose to pay each secured creditor the present value of their allowed secured claim. In re Big Hook Land & Cattle Co., 77 B.R. 7...
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ICAHN GROUP MOTION FOR ORDER TERMINATING OR MODIFYING EXCLUSIVE PERIOD TO PERMIT FILING OF AN ALTERNATIVE PLAN OF REORGANIZATION Trans World Airlines, Inc. (TWA), ACF Industries, Incorporated, Swan Manage- . ment Corp. and Union Associates Corporation, a group of corporations controlled by Carl C. Icahn (hereinafter referred to collectively as the “Icahn Group”), have moved for an order t...
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OPINION AND ORDER Case Summary The debtor is a 55 year old male currently employed by Hammermill Paper Company, Inc. (“Hammermill”) as a supervisor at a salary of approximately $32,500 per year. He has been employed by Hammermill since January 11, 1952 and has an interest in a pension plan consisting of employee and employer contributions as well as certain stock contributions. This plan,...
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MEMORANDUM-OPINION This matter came on for hearing by the Court on the trustee’s objection to a B-4 exemption claimed by the debtor relating to the debtor’s recovery of $14,000.00 as a result of a personal injury. The case is one of first impression and our chief determination is whether the debtor’s personal injury award can be exempted under K.R.S. 427.-150(2)(c) and (d). In order to make tha...
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MEMORANDUM OF OPINION The above-styled Chapter 11 bankruptcy case is before the Court on a Motion for Relief from the Automatic Stay filed by Mutual Life Insurance Company of New York [hereinafter referred to as “Movant”] in which it seeks relief from the stay “through the enforcement of the provisions of 11 U.S.C. § 365(d)(4).” Motion at 1. A hearing was held on December 3, 1987, after which t...
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OPINION Facts Northwest. Electric Company (“Northwest”) was in the electrical contracting business and filed the within Chapter 11 case on December 5, 1986. (Northwest Electric Company of Ohio, a companion debtor, has no part in this adversary proceeding.) In the course of Northwest’s business, it performed electrical contracting services for General Electric Company and purchased goods from Gen...
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OPINION AND ORDER The Trustee commenced this proceeding for summary judgment in an action to reform a mortgage and compel the transfer of property held by the Trustee. Additionally, Defendant Hawley Bank has entered a Motion to Dismiss the Complaint against the Trustee. For the reasons provided herein, we grant the Trustee’s requested relief and deny the Motion for dismissal of the compla...
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OPINION The motion before the court in the instant case requires us to examine once again the meaning and application of 11 U.S.C. § 109(g), a subject which we previously addressed in In re Samuel, 77 B.R. 520 (Bankr.E.D.Pa.1987). We hold that, in order to prevail in a motion based upon 11 U.S.C. § 109(g)(1), the moving party bears the burden of showing that the debtor either (1) willfully fa...
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DECISION ON OBJECTIONS TO DISCHARGE AND DISCHARGEABILITY OF DEBT The Chapter 7 trustee and the debtors’ former landlord, Maurice Baer, have jointly moved to deny the debtors’ discharge under 11 U.S.C. § 727. Additionally, the debtors’ former landlord has moved under 11 U.S.C. § 523(c) to have a business rent claim held nondischargeable because the debtors allegedly misappropriated a bond ...
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MEMORANDUM OPINION This matter arose out of a Motion For Relief From Stay filed by the Boatmen’s Bank of Lockwood and vigorously opposed by debtors on the theory that the debt to the movant had been extinguished by actions of said movant prior to the bankruptcy. The Court has been unable to locate any cases directly in point and suspects that there are no Missouri cases directly in point. A bri...
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MEMORANDUM AND DECISION This Adversary Proceeding was commenced by James M. Goodman (the “Debt- or”) and the Goodman Automatic Sprinkler Corporation (“GASC”) on July 20, 1987. The Debtor filed a petition in bankruptcy under Chapter 7 on December 6, 1984, and was ordered discharged on March 26, 1985. The complaint alleges that the National Labor Relations Board (“NLRB”) and the Road Sprink...
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MEMORANDUM OPINION The debtors, James L. Williams and Hazel E. Williams, filed their Chapter 13 proceeding in early 1985 and their plan was duly confirmed. In July of 1987, James L. Williams died and on August 27, 1987, Hazel E. Williams filed her Application to Convert the existing Chapter 13 to a Chapter 7. In that Application, Mrs. Williams alleged, inter alia: 2. That Mr. Williams had no ...
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*1008ORDER The Debtor has filed a Chapter 7 bankruptcy petition and seeks to file the petition in forma pauperis without payment of the filing fee. Section 28 U.S.C. 1930 provides: “Notwithstanding Section 1915 of this title, the parties commencing a case under Title 11 shall pay to the clerk of the district court or the clerk of the bankruptcy court, if one has been certified pursuant to section ...
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MEMORANDUM OPINION AND ORDER This action was commenced in the United States District Court for the District of New Jersey under Civil Action No. 87-362(JWB) by plaintiff Dynatron/Bondo Corp. (“Dynatron/Bondo”), a Georgia corporation, against defendant The Clausen Company (“Clausen”), a New Jersey corporation. Count I of the complaint alleges a cause of action for patent infringement. Count II of ...
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OPINION Before the court is a motion by the law firm of Cole, Schotz, Bernstein, Meisel & Forman, P.A. (“Cole, Schotz”), attorneys for Star Broadcasting, Inc. (“SBI”) and Sandra M. Shenfeld (“Shenfeld”), both debtors herein, for an order declaring that the representation by Cole, Schotz of both debtors-in-possession does not represent a conflict of interest. On December 18, 1986 Shen...
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*823 DECISION FOR CONSTRUCTION OF CONSENT ORDER, REQUEST FOR CLASS ACTION CERTIFICATION AND FOR RELIEF FROM THE AUTOMATIC STAY The movants, Rosemary Herold Lazard, et al., seek construction of a consent order signed by their attorney, Charles L. Black Aycock, Esq. and by the debtor, Texaco, Inc., governing the movants’ ability to pursue pre-petition litigation in LaFourche Parish...
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ORDER On June 4,1987 confirmation of the debtors’ plan of reorganization came on for hearing before this court in Des Moines, Iowa. An objection to the plan was filed on behalf of ITT Industrial Credit Corporation (ITT) on March 20,1987. An objection to the plan was also filed on behalf of the Internal Revenue Service (IRS) on April 13, 1987. Richard B. Campbell appeared on behalf of the ...
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ORDER ON MOTION TO AVOID LIEN On August 8, 1987 a telephonic hearing on a resistance to motion to avoid lien filed on behalf of Standard of Beaverdale, Inc. (creditor) was held before this court in Des Moines, Iowa. The debtor filed a motion to avoid the creditor’s judicial lien on the exempt homestead on June 5, 1987. The creditor resisted the motion for the reason that the debtor has no...
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ORDER ON OBJECTION TO EXEMPTION AND OBJECTION TO MOTION TO AVOID LIEN On October 14, 1987 a hearing on objection to exemption and objection to motion to avoid lien was held in Council Bluffs, Iowa. State Bank and Trust (SB & T) filed an objection to exemption on August 5, 1987. The debtors filed a motion to avoid liens on September 10, 1987. SB & T filed a resistance thereto on September 22,1986....
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The law firm of Locke, Purnell, Rain and Harrell filed an application for an award of attorney’s fees in the sum of $61,573.50 and reimbursement of expenses in the sum of $6,091.74. They state that the application is filed by them in their capacity as general counsel for the chapter 11 debtor, pursuant to an order of appointment made by former Bankruptcy Judge Pelofsky on November 28, 1983. The...
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MEMORANDUM OPINION INTRODUCTION Pending for determination are two lien avoidance motions in which the objecting creditor, ITT Financial Services (“ITT”), has raised common questions of law and fact. For the reasons stated below, ITT’s objections will be overruled and the Debtors’ motions granted. BACKGROUND Section 522(f)(2)(A) of the Bankruptcy Code permits a debtor to avoid a lien on ho...
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The above matters have been procedurally consolidated as they all involve the identical issue of law. In each case, the debtor filed a declaration under penalty of perjury in support of a request to proceed in forma pauperis. Each of the petitions indicates that the petitioner owns no property in excess of the allowable exemption and each of the petitions indicates minimal income insufficient o...
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ORDER On July 8, 1987 the following matters came on for hearing in Council Bluffs, Iowa: 1. Motion to dismiss and/or to remove debtors as debtors in possession filed by the Production Credit Association of the Midlands (PCA) and the Federal Land Bank (FLB) on June 15, 1987; 2. Motion to segregate proceeds of CRP contract and CRP program and to prohibit debtors’ use thereof filed...
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MEMORANDUM AND OPINION This matter comes before the Court on the motion of the debtor for confirmation of his Chapter 13 plan. This proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(L) as a matter involving plan confirmation. I. FACTS On September 10, 1987, the Court conducted confirmation hearings for five Chapter 13 cases, including the case of James T. Barbee (the “Debtor”). In...
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MEMORANDUM DECISION ON APPLICATION OF JOHN A. CALLAHAN AND JOSEPH F. BRADWAY, JR. FOR ORDER DIRECTING CHAPTER 11 TRUSTEE TO PAY SALARY AND REIMBURSE DISBURSEMENTS John A. Callahan (“Callahan”) and Joseph F. Bradway, Jr. (“Bradway”) (collectively “Applicants”) have sought an order directing James P. Hassett, the Chapter 11 trustee of these debtors (“Trustee” or “Hassett”), to pay them a co...
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MEMORANDUM The matters before the Court are a Motion for Summary Judgment filed by Gull Air, Inc. (“Gull”) and an objection to that motion, as well as a Cross-Motion for Summary Judgment, filed by Beech Acceptance Corporation, Inc. (“Beech”). There are no issues of material fact in dispute. Consequently, the matters are ripe for summary judgment pursuant to Fed.R.Civ.Pro. 56(c), which is ...
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MEMORANDUM OPINION STATEMENT OF THE CASE On November 12, 1986, David E. Lawrence, Debtor, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. On March 11, 1987, William M. Fla-tau, Trustee, Plaintiff, filed a complaint against Tribble’s Shoes, Inc., Defendant, asserting that Defendant had received a preferential transfer which should be avoided.1 On September 10, 1987, P...
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MEMORANDUM DECISION RE ENTRY OF ORDER FOR RELIEF On December 11 and 18, 1987, this court held a trial on the issue of whether the debtor, Stuart R. Ross (“Debtor” or “Ross”), was generally not paying his debts. See Bankruptcy Code § 303(b)(1). The court had previously found that there were sufficient petitioning creditors. See In re Ross, 63 B.R. 951 (Bankr.S.D.N.Y.1986).1 Among the petitioners f...
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MEMORANDUM OPINION Plaintiff, First Valley Bank (“plaintiff”), has filed this complaint to determine the dischargeability of a portion of a debt owed to it by the husband and wife debtors/defendants, Harold and Mary Ramonat (“debtors”). Mixed questions of fact and law abound in plaintiff’s allegations that debtors/defendants committed defalcation, embezzlement and willful and malicious in...
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MEMORANDUM OPINION The Defendant-Debtor’s Motion to Dismiss, as untimely filed, this adversary proceeding challenging dischargeability of the Plaintiffs debt on the basis of 11 U.S.C. §§ 523(a)(2)(A) and (a)(4) arises from the following sequence of events. On June 18, 1987, the Debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code. On September 9, 1987, a notice schedu...
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MEMORANDUM OPINION AND ORDER ON MOTION OF TRAVELERS INSURANCE COMPANIES FOR ADEQUATE PROTECTION AND ON MOTION OF TRAVELERS INSURANCE COMPANIES CLAIMING GOVERNMENT PROCEEDS AS SECURITY Two motions came on for hearing at two separate proceedings on December 9, 1987, and January 13, 1988, and the two contested matters are consolidated for decision in this Memorandum Opinion and Order. These ...
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MEMORANDUM OPINION The sole issue before the court, as stipulated by the parties, is whether a Farmers Home Administration (FmHA) financing statement sufficiently describes collateral owned by the debtor so as to perfect FmHA's lien on said collateral. The following undisputed facts appear from the pleadings and stipulations. On August 28, 1983, a “Financing Statement” was filed in the Circui...
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MEMORANDUM AND ORDER This matter comes before the Court on the complaint of Salem National Bank (“plaintiff”) to determine the nature, extent and priority of liens. Plaintiff and defendant, the United States of America, have filed cross-motions for summary judgment. Plaintiff and defendant are secured creditors, each claiming a superior interest in the proceeds of debtors’ 1985 crops. *63 T...
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MEMORANDUM OPINION On December 21,1987, one JAMES CAR-RAGHER filed a Motion to Modify Stay (and is therefore referred to as “the Mov-ant”) seeking permission from this court to proceed with state court litigation against the Debtor arising out of a vehicular accident in which he was involved on June 19, 1981. The granting of this motion was necessary to allow the Movant to proceed because...
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INTRODUCTION AND FACTUAL BASIS The within matters come before the court on application for confirmation. In each case, the secured creditor has objected to such confirmation. The secured creditors, mortgagees under valid mortgages on the primary residences of each of the debtors have, as the result of the default of each of said debtors, elected to accelerate the mortgages and declar...
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DECISION ON MOTION FOR AN ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY The Bank of New York (“BNY”) has moved pursuant to 11 U.S.C. § 362(d) and Bankruptcy Rule 4001 for relief from the automatic stay imposed under 11 U.S.C. § 362(a), in order to proceed with a foreclosure proceeding on its second mortgage against the debtor’s home. The debtor, Rita Vita, filed with this court her second petit...
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*619 ORDER OF DISMISSAL A motion (CP 22) to dismiss this case for a bad faith filing, as supplemented (CP 24), filed by a major secured creditor, was heard January 26. At the hearing, the movant and the debtor announced that in view of certain concessions which the debt- or is now willing to make to the mov-ant/creditor, both parties would prefer that this court approve and enforce the conces...
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ORDER DENYING MOTION TO AVOID LIENS The debtor’s motion (CP 45) for the relief provided under 11 U.S.C. § 522(f)(1) was heard on December 1, 1987. 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 have been entitled ... if such lien is (1) a judicial lien...
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ORDER ON INTERIM FEE APPLICATIONS These two cases were filed almost five years ago under chapter 11. Nothing of significance happened in either until each was converted to chapter 7 on the unopposed motions of the creditors’ committees. The Duque case was converted in May 1985 and Domino was converted five months later in October. The two committees were represented by the same law firm. ...
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ORDER MODIFYING ORDER OF DISMISSAL The debtors’ motion for rehearing (CP 10) of the Order Dismissing Case dated November 13, 1987 (CP 9) was heard December 9. The Order is modified in one particular, but in all other respects it is reaffirmed. The case was dismissed on a mortgagee’s motion upon the ground that a foreclosure sale before bankruptcy had cut off the option for these debtors to ...
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MEMORANDUM AND OPINION Movants, David and Nancy Godiska (“movants”) have filed a motion pursuant to 11 U.S.C. § 362 requesting relief from the automatic stay to allow them to proceed in state court against the property of Wesley and Maeverna Farmer (“debtors”). We agree with movants that the statutory redemption period, as extended by 11 U.S.C. § 108, expired without redemption of the pro...
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MEMORANDUM OPINION Debtors owned a house at 4236 Lister, Kansas City, Missouri. On October 23, 1987, Lomas and Nettleton as servicing agents obtained a non-judicial foreclosure of the property. Debtors were nine monthly payments behind on their note and clearly the house was not in good repair. The debt, interest and costs totaled $3,964.10 and the holder of the note bid that amount at th...
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MEMORANDUM SUR EVIDENTIARY ISSUES At the close of eight days of testimony between October 19,1987, and December 3, 1987, at a consolidated hearing on a Motion of Nassau Savings and Loan Association (hereinafter referred to as “Nassau”) for Relief from Automatic Stay, for Adequate Protection, and for Other Relief; and Motions of the Debtor (1) to Sell Four Building Lots [the “T” lots] Free...
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ORDER OF ABSTENTION This adversary complaint has been pending 14 months. On November 17, 1987 District Judge Hoeveler remanded the matter to this court “as a ‘related to’ proceeding”, having held on interlocutory appeal that this was a non-core proceeding, rather than a core proceeding as had been previously held by my colleague, Judge Weaver, in his order of January 13, 1987. The effect of thi...
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ORDER DENYING TRUSTEE’S OBJECTION TO CLAIM NO. 39 (IRS) The trustee’s objection to Claim No. 39 filed by the IRS in the amount of $7,068,-093 (as most recently amended in April 1986) was heard November 30, 1987. For the reasons which follow, the objection is denied. This unsecured, priority claim is for an adjusted 1982 income tax of $4.3 million under 11 U.S.C. § 507(a)(7). The clai...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on November 9, 1987, on the motion of Burger King Corporation for determination of the status and the amount of its administrative claim during the chapter 7. Burger King Corporation appeared by and through counsel, Scott Alan Orth and J.B. King. The trustee, Michael H. Berman, objected to the motion and appeared in person and as a...
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OPINION Two principal questions are presented in this case: whether a counterclaim filed by a debtor-in-possession against a creditor that has asserted a claim against the bankruptcy estate may properly be classified as a core proceeding, and whether the debtor-in-possession is entitled to a jury trial in such a proceeding. I conclude that the bankruptcy court may try the counterclaim as ...
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MEMORANDUM DECISION First International Bank, formerly known as People’s Bank, (hereinafter “People’s Bank”), has moved for relief from stay to permit foreclosure of their lien on the debtor’s San Diego National League Baseball Club contract. Anthony Gwynn, the debtor, is a highly-regarded right fielder for the San Diego Padres. Gwynn contends that the alleged security interest in the wages he ...
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MEMORANDUM OPINION On December 28, 1987, an order of confirmation was entered in this Chapter 13 case. This memorandum opinion will reflect the rulings of the court upon objections to confirmation made on behalf of the Oregon Department of Higher Education and the Oregon State Scholarship Commission, hereafter referred to as the objecting creditors. At the hearing on confirmation the debtors ...
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MEMORANDUM OPINION AND ORDER On consideration of the motion for summary judgment filed by the plaintiff, United States of America, acting for and on behalf of the Farmers Home Administration; response to said motion having been filed by National Bank of Commerce of Mississippi; and the Court having heard and considered same hereby finds, orders and adjudicates as follows, to-wit: I. ...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on a Motion for Relief from Stay filed by D. Michael Rounds, Stephen E. Rounds, (“Heirs”) and the Estate of Alice S. Rounds (“Estate”). The Debtor was appointed personal representative of the Estate of Alice S. Rounds on February 19, 1979. On April 3, 1986, the Arapahoe County District Court issued an Order to Show Cause...
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ORDER Plaintiffs have filed an adversary complaint seeking to determine the discharge-ability of a $31,139.22 debt pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). Plaintiffs also seek denial of debtors’ Chapter 7 discharge under 11 U.S.C. § 727. No factual allegations are specified in the complaint concerning either the alleged wrongful acts or the specific provisions of § 727 under which plain...
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DECISION Heard on December 2, 1987 on the plaintiffs’ complaint to have a debt due from Frank Dino declared nondischargeable. There was an extended hearing and the testimony was wide-ranging — due mostly to the Court’s failure to enforce its own rules, i.e., to require the parties to file a Joint Pre-trial Order before commencing trial. We take the responsibility for this, noting as well that t...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court on July 20, 1987, upon the Debtor’s Motion to Confirm his Chapter 12 Plan and Objection and a Motion to Dismiss filed by the Travelers Insurance Company (“Travelers”). Travelers also filed a contemporaneous Motion for Relief From Stay against the Debtor, Oscar G. Land (“Land”) which was heard by the Court at the same time on July 20...
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DECISION AND ORDER Before the court is a motion brought by the debtor seeking to reclassify, as general unsecured claims, not subject to priority, the interest and penalty portions of priority tax claims heretofore filed by the federal and state taxing authorities. For the reasons stated below, the court holds that: (1) penalties and interest on post-petition taxes are afforded priority s...
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MEMORANDUM AND ORDER VACATING DEFAULT ORDER AND ENTERING SUBSTITUTE ORDER The issue is whether a default order entered against the Internal Revenue Service ("IRS”) on the debtor’s Motion for Lien Avoidance under Bankruptcy Rule 4003(d) should be opened, and if so, whether the Motion to Dismiss filed by the IRS should be granted. Debtor filed her lien avoidance motion on November 25, 1986, all...
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ORDER Now before the Court is a Motion to Dismiss the Complaint in this adversary proceeding for failure to state a claim upon which relief can be granted. The Plaintiff filed this Complaint pursuant to 11 U.S.C. §§ 523(a)(4) and (6) objecting to dischargeability of its debt by this debtor. Debtor moved to dismiss for failure to state a claim upon which relief can be granted. The Motion to Dismis...
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MEMORANDUM OF DECISION Creditors, Robert and Millicent Sukman, have moved to file a proof of claim out of time. The issues are whether excusable neglect exists to allow an extension of time to file a proof of claim and whether an informal proof of claim is subject to amendment after the bar date. If so, what constitutes an informal proof of claim? Facts The Sukmans hold two prom...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on a Motion to Dismiss or Abstain filed by the Colorado State Bank Commissioner (“Commissioner”), which Motion was joined by the Office of the United States Trustee (“U.S. Trustee”). The Industrial Bank Savings Guaranty Corporation (“IBSGC”), a non-profit corporation created by the Colorado Legislature to provide protection f...
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FINDINGS AND CONCLUSIONS The motion for summary judgment of American River Transportation Company (ARTCO) having been heard by this Court and the matter taken under submission and now having been duly considered, the Court enters the following Findings of Fact and Conclusions of Law. Offshore Carrier and Liner Service, Inc. filed its voluntary petition under Chapter 7 on April 10, 1987. The D...
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MEMORANDUM OPINION Defendant filed a Chapter 11 Reorganization in mid 1986. Defendant obtained confirmation of its reorganization plan on July 7, 1987, with the effective date of the plan being June 1, 1987. The business of defendant is a park for mobile homes or recreational vehicles and although “time share” of some lots is involved, the majority of the developed lots are owned by individuals wh...
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MEMORANDUM AND ORDER In this Chapter 11 proceeding we have for consideration a Motion by Jyoti, Inc., et al. (Movants) against Ho’s Ltd. (Debtor) to compel surrender of non-residential real property and to compel compliance with a settlement agreement as to rental payments and for an Order requesting payment of postpetition rent. A brief summary of the relationship between the parties is not on...
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MEMORANDUM OPINION Debtors ask this court to confirm their Chapter 13 plan. The issue is whether debtors have established cause under § 1322(c) of the Bankruptcy Code to extend their plan beyond 36 months. The hearing on confirmation occurred on December 21, 1987 and I took the matter under submission. JURISDICTION This court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) (...
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OPINION Before me are various motions, objections and an adversary proceeding filed by both the debtor, Ann Windfelder, and a creditor, Robert Rosen, Esquire. 1 Mr. Ro-sen is former counsel to the debtor and he filed a secured proof of claim in the amount of $17,120.00. The basis for this secured claim is a judgment note in the amount of *369 $16,000.00 which was c...
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ORDER In this adversary proceeding, Alice G. Fryslie, seeks the denial of a discharge to the Debtor, pursuant to 11 U.S.C. §§ 523(c) and 727. The Plaintiff, Alice G. Fryslie, asserts that the Debtor/Defendant should be denied a general discharge because he filed incomplete and inaccurate schedules and statement of affairs in his Chapter 7 bankruptcy. The Debtor/Defendant answers, by a Motion to...
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MEMORANDUM OPINION Pittsburgh National Bank (“PNB”) brings a Motion for Relief from Automatic *392 Stay. The trustee and debtors oppose the motion and raise the issue of whether PNB has perfected its security interests. FINDINGS OF FACT On March 8, 1985, Gary A. Davadick (“Debtor”), as owner of Open Pantry # 24, executed a Non-Negotiable Judgment Note (“Note”), wher...
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MEMORANDUM OPINION On October 24, 1986, the Debtors, Henry Edward Waugh and Grace Ida Waugh (“debtors”), commenced an action to recover funds withheld by R.J. Saldamarco, Esq., the trustee in their chapter 13 case. The debtors aver that the funds in question were distributed to their creditors after this Court entered an order to convert the case to a chapter 7. Thus, the debtors allege t...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of the Bristol Lumber Co. (Plaintiff) for Summary Judgment. The Plaintiff is represented by Attorney Daniel A. Fish. The Debtors are represented by Attorney David M. Kaleel. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankrup...
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MEMORANDUM OPINION AND ORDER ON MISTER DONUTS’ MOTION TO IMPOSE SANCTIONS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 11, BANKRUPTCY RULE 9011, and 28 U.S.C. § 1927 This cause comes before the Court on the motion of Mister Donut of America, Inc. *945 (“Mister Donut”) to impose sanctions, including attorneys’ fees and costs, pursuant to Rule 11, F.R.Civ.P., Bankr.Rule 9011, an...
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MEMORANDUM OPINION FACTS This case began as a Chapter 11 and converted to Chapter 7 on May 12, 1987. This Order is in response to the creditor’s Motion To Set Aside Trustee’s Abandonment. At the first meeting of creditors held on June 11, 1987, the trustee withheld any action on abandonment of certain prop *533 erty of the debtors’ estate including property known as 1898...
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MEMORANDUM OPINION THIS MATTER comes before the Court on a Motion to Approve Attorney’s Fees (Fil. # 38, September 9, 1987), by Debtor’s attorney under 11 U.S.C. § 330, Rule 2016(b) and Local Rule 12-9. FACTS This Court ordered the Debtor’s attorney to file a fee application after making a determination at the confirmation hearing for Debtor’s Chapter 12 plan, that no such application had b...
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MEMORANDUM OPINION The only issue remaining for decision in this case is plaintiff’s claim that the defendant’s debt to him is not dischargeable pursuant to 11 U.S.C. § 523(a)(4) due to defendant’s alleged fraud or defalcation while acting in a fiduciary capacity. Insofar as the complaint stated a claim as to dis-chargeability under 11 U.S.C. § 523(a)(4) for embezzlement, the complaint ha...
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MEMORANDUM OPINION AND ORDER Lackawanna Detective Agency, Inc., a Chapter 11 debtor, has proposed a plan in which it classifies and treats a portion of the claim of the Internal Revenue Service and the claim of the State of Delaware as general unsecured claims. The claimants contend the plan cannot be confirmed because the proposed treatment violates 11 U.S.C. § 1129(a)(9)(C) which requir...
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ORDER ON MOTION FOR RELIEF FROM STAY AND TO CONFIRM FORECLOSURE SALE AND TO AUTHORIZE FILING FORECLOSURE DEED The above-captioned Motion was scheduled and was heard by this Court on November 2, 1987, in Waycross, Georgia. Based on the stipulation entered into by the parties and the arugment of counsel I make the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1)Movant is...
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MEMORANDUM OPINION The debtors in the above-styled Chapter 13 case have objected to the payment of a trustee’s commission on secured debts payable outside the plan. The standing Chapter 13 trustee asserts that he is entitled to a 10 percent commission on all payments disbursed under the plan, whether made by the debtor or by the trustee. A brief summary of the debtors’ plan reveals that the d...
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ORDER Brought for hearing on February 9, 1988, was the Motion of the Debtor to Amend its Chapter 12 Plan. The Debtor’s Plan was confirmed on June 15, 1987. In the Debtor’s Motion to Amend its Chapter 12 Plan, the Debtor moved to amend four separate areas as follows: (1) Add the Empire Federal Savings and Loan as a creditor; (2) Delete Navistar as a creditor; (3) Delete Massey Ferguson as ...
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MEMORANDUM AND ORDER Plaintiff, acting in his capacity as Chapter 7 Trustee, has brought this adversary proceeding under Sections 548 and 550 to recover the value of an alleged fraudulent transfer. The adversary arises out of a foreclosure proceeding, on the Debtor’s *641 property. After' consideration of the evidence adduced at the trial on August 26, 1987, I make the follow...
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MEMORANDUM OF DECISION Nasson College, the Plaintiff, is a reorganized Chapter 11 debtor operating as a post-secondary educational institution in Springvale, Maine. The Defendant, the New England Association of Schools and Colleges, Inc. (NEASC), is a voluntary, self-governing organization whose members are accredited institutions. Among its functions NEASC undertakes to evaluate schools ...
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MEMORANDUM AND DECISION This Adversary Proceeding was commenced by the Trustee to recover property allegedly belonging to the bankruptcy estate. At issue is the circumstances under which a debtor may amend schedules to include exemptions, and whether the exemption claimed in this case was proper. Kathleen Olmstead (the “Debtor”) filed her petition for Chapter 7 relief on February 6, ...
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MEMORANDUM OPINION This is an Adversary Proceeding to determine dischargeability of debt pursuant to 11 U.S.C. section 523(a)(2). The court finds facts as follows: On May 11,1987 the Debtor applied to Plaintiff for a loan and completed an application indicating that it included a complete listing of all of his debts and obligations. Plaintiff contends that Debtor fraudulently concealed over $8,...
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REVISED MEMORANDUM OPINION REGARDING USE AND/OR MISUSE OF CASH COLLATERAL BY THE DEBTOR-IN-POSSESSION The issues before the Court arise out of several Motions and Hearings on the issues of use and misuse of cash collateral by the Debtor-in-Possession (“Placid”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (B), (K), (M), (0). The following constitutes findings of fact and conclus...
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*436 MEMORANDUM OF OPINION ON MOTION TO ALLOW ATTORNEY’S FEES PURSUANT TO § 506(b) On November 18, 1987 the Court heard argument on a Motion to Allow Attorney’s Fees Pursuant to § 506(b) brought by R & R Dozers, Inc., T & 0 Oil Field Service, Greg Estes d/b/a AA Roustabouts, Henderson Trucking, Inc., E.J. Campbell Dozer Service, Inc., and Sterling Sloss (Movants). Movants were su...
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MEMORANDUM OPINION Karen L. Weidenhammer (“movant”) has requested relief from the automatic stay imposed by 11 U.S.C. § 362(a) to allow her to proceed with the filing of a contempt petition based on nonpayment of support in *384 a domestic relations action (“state court action”) pending against her husband, Mark Allen Weidenhammer (“debtor”). We will grant relief from stay ba...
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MEMORANDUM OPINION On July 1, 1982, a stock purchase agreement was entered into between the Debtor and BARBARA J. McCORKHILL. Pursuant to the Agreement and a contemporaneous promissory note, the Debtor was obligated to pay Ms. McCorkhill the principal amount of Eight Hundred Twenty-Five Thousand & 00/100 Dollars ($825,000.00), with interest accruing at 12 percent (12%) per annum. In retur...
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ORDER AND DECISION DETERMINING DEBT TO BE DISCHARGEABLE This matter is before the court upon plaintiffs objections to discharge of an obligation arising out of a divorce and alimony judgment awarding plaintiff judgment for $12,800 in a judgment against defendant, the debtor in this case. This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334 and the general order of reference e...
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MEMORANDUM DECISION I. At issue is whether loans extended by La Jolla Bank and Trust Company (“the Bank”) to SFW, Inc., doing business as Seafarms West (“the debtor”) for the business operations of the debtor, may be classified as “consumer loans” for the purpose of invoking the co-debtor automatic stay provision of 11 U.S.C. § 1201. The Bank contends that loans for business pur...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW After hearing testimony of witnesses for Plaintiff and Defendant and receiving other evidence at the trial of this case beginning January 12 and ending January 15, 1988, the Court makes findings of fact, conclusions of law and adjudicates issues as follows: INTRODUCTORY This case arises on objections asserted by Debtor-Defendant Jack J. Grynberg (“Grynberg”)...
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MEMORANDUM OPINION Before the Court is the Debtor’s Application to Reject a Collective Bargaining Agreement, negotiated with the Chauffeurs, Teamsters & Helpers Local Union No. 491 (“Union”), which it deems necessary to its reorganization. The Union contests the application as being wholly unnecessary and inequitable. A hearing on the issues was held on January 25, 1988, at which time exh...
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DECISION AND ORDER ON MOTION TO AMEND COMPLAINT AND CROSS MOTION TO DISMISS J. Frederic Lohman seeks permission to amend his complaint to substitute two new defendants, Joseph Schwartz and William Meyers, for the partnership which Lohman has sued.1 Unless the amendment relates back to the date the original complaint was served, it is time-barred. This request for relief is premised upon Bankruptc...
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OPINION Debtor’s chapter 13 plan is challenged at confirmation by the objections of Citicorp Homeowners Services, Inc. The issues presented include whether the bankruptcy court has subject matter jurisdiction to hear the case, whether the debtor may satisfy a judgment of foreclosure through a chapter 13 plan, and whether a plan that proposes a balloon payment during the last month of the ...
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MEMORANDUM DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The defendant filed a motion for summary judgment on the grounds that the alleged preferential transfer to the defend*552ant occurred outside of the 90 day period in 11 U.S.C. § 547(b)(4)(A). The motion should be denied for the following reasons. This case is a chapter 11 proceeding which began by the filing of an involuntary petition unde...
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MEMORANDUM OPINION In this action, the trustee/plaintiff seeks to avoid federal tax liens as preferential transfers under 11 U.S.C. § 547. The United States of America moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, made applicable herein by Bankruptcy Rule 7012(b), to dismiss the complaint with regard to the Internal Revenue Service. On July 27, 1987, the de...
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MEMORANDUM OPINION The matter before the court is an objection to the debtors’ discharge filed on July 28, 1987, by First Federal Savings and Loan Association of Raleigh (“First Federal”), a creditor of the debtors. The trial of this adversary proceeding was held in Raleigh, North Carolina, on February 4, 1988. FACTS The debtors filed a voluntary petition for relief under chapte...
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MEMORANDUM OPINION Now before the Court is a Complaint objecting to the debtor’s discharge filed pursuant to 11 U.S.C. § 727(a)(4)(A) and § 727(a)(4)(B). The matter came on for trial February 4, 1988. The Plaintiff appeared by counsel, Steven Napper, Esq. The debtor appeared personally and by counsel, Robert E. Irwin, Esq., This Court has jurisdiction over the case pursuant to 28 U.S.C. § 157...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the ex parte Affidavit of Counsel in Support of Order Permitting Enforcement of State Law Rights Including Foreclosure filed by creditor Mellon Financial Services Corporation #9 (“Mellon”). This Chapter 13 case was commenced January 8, 1987, and on March 26, 1987, the Court confirmed the Debtors’ Chapter 13 Plan. That Plan...
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The trustee in bankruptcy in the jointly administered Chapter 7 cases of Emanuel Salzman and William Hamlin (“the debtors”) opposes the adversary proceedings commenced by the holders of second and third mortgages against real estate owned by the debtors, which seek to compel the trustee to make payment to the second and third mortgagees from the proceeds of the trustee’s sale of the real estate. T...
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MEMORANDUM This adversary proceeding was initiated by Roy K. Kohr and Norma J. Kohr (debtors) against John F. Arnold in his official capacity as District Justice and his magisterial district (defendants). The amended complaint seeks to hold defendants in contempt for violating the stay imposed by section 362 of the Bankruptcy Code (11 U.S.C. § 362). The defendants have filed a motion to d...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause was tried before the Court upon the complaint of Daniel Richter (“Richter”) for denial of discharge of Eleanor Gordon (the “debtor”), in four separate counts under 11 U.S.C. § 727 and seeking exception of the debt to Richter from the discharge in two separate counts under 11 U.S.C. § 523. The Court having heard the testimony, examined the...
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83 B.R. 3 (1988) In re Thomas R. GAUMER, Elizabeth Ann Gaumer, Debtors. Bankruptcy No. 2-84-02738. United States Bankruptcy Court, S.D. Ohio, E.D. January 28, 1988. *4 Lee C. Mittman, Columbus, Ohio, for debtors. Thomas R. Straus, Steubenville, Ohio, trustee. ORDER SUSTAINING TRUSTEE'S OBJECTION TO CLAIM NO. 17 BARBARA J. SELLERS, Bankruptcy Judge. This matter is before the Court upon an objecti...
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MEMORANDUM OPINION This adversary action was brought by the Sturgeon State Bank (hereinafter Bank) against debtors Melvin Savich and his wife Julie Savich. There was no evidence linking Julie Savich to any of the alleged improprieties and the Court denied recovery as to her at the conclusion of the evidence. The balance of this opinion will deal only with Melvin Savich and he will be referred t...
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MEMORANDUM DECISION I. At issue is whether the debtor herein is entitled to a portion of the proceeds from the sale of his residence, pursuant to his claim of a homestead exemption under Cal. Civ.Proc.Code § 704.710 et seq. (West 1987). The debtor claims that while the sale was conducted voluntarily, the sale of a debt- or’s residence by a Chapter 11 debtor, act*33ing as a debtor-in-possession eng...
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ORDER ON DEBTOR’S MOTION FOR VALUATION OF SECURED CLAIM This matter is before the Court upon a motion filed by the debtor, Wendy's Food Systems, Inc., asking the Court to value a portion of the secured claim of Lincoln National Life Insurance Company for its own account and as agent for Continental Assurance Company, an investment fund, Minneapolis Teachers Retirement Fund Association, the West...
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MEMORANDUM DECISION AND ORDER On September 25, 1987, Transamerica Occidental Life Insurance Company (“Transamerica”) filed herein its motion for payment of $559,195.51 as an administrative expense of the bankruptcy case of Oaks of Cypress Station, Ltd. (“Oaks”). On November 25, 1987, Transamerica filed herein its motion seeking an order of this court directing debtor to issue a Plan Note *53 ...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This matter comes before the Court on alternative motions for summary judgment filed by Harbor Pointe Office Park, Ltd., I (“Harbor Pointe” or “Plaintiff”), Provident National Assurance Company (“Provident”) and First Colorado Bank and Trust, N.A. (“First Colorado”). These motions for summary judgment seek a determination of the nature and extent of l...
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ORDER DENYING MOTION TO DISMISS AND DIRECTING DEFENDANT TO ANSWER Now before the Court for review are the pleadings filed in Adversary Proceeding No. 87-469 filed in bankruptcy case no. LR 85-1100. The Plaintiff, Trustee in these proceedings, filed a Complaint to avoid a preferential transfer pursuant to 11 U.S.C. § 547. Defendant, Foster Manufacturing Co., Inc., has filed a Motion to Dismiss on t...
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MEMORANDUM OPINION Bankruptcy Consultant. This matter comes before the court upon the amended proof of claim of the Employment Division of the Department of Human Resources of the State of Oregon (ED) and the trustee’s objection thereto. The parties have consented to a determination of this matter by the bankruptcy consultant. Accordingly, this opinion is entered pursuant to Miscellaneous Ord...
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MEMORANDUM OPINION The United States has filed a Motion to Dismiss the Appeal of the pro se Debtor, Mr. Melvin Hubka (Fil. # 128, August 7, 1987). Mr. Hubka previously filed a Notice of Appeal (Fil. # 122, April 10, 1987), with the Clerk of the United States Bankruptcy Court. A hearing has been held. The Debtor appeared pro se and the United States was represented by Mr. Douglas R. Semisch. T...
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MEMORANDUM OPINION INTRODUCTION Benny L. Ray, Jr., and Bonnie M. Ray (hereinafter the “Debtors”) filed a Motion To Avoid Liens on October 2, 1987, seeking to avoid liens on the Debtors’ property held by ITT Financial Services, a/k/a Thorp Consumer Discount Company, (hereinafter “ITT”) and Beneficial Missouri, Inc. (hereinafter “Beneficial”) pursuant to security interests in the Debtors’ prope...
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MEMORANDUM OF OPINION CONCERNING TRUSTEE’S OBJECTION TO THE CLAIM OF THE DEPARTMENT OF ENERGY West Texas Marketing Corporation (WTMC) filed for a reorganization under Chapter 11 of the Bankruptcy Code in 1982. Those efforts were not successful and the case was converted to a liquidation on December 7, 1983. Walter Kellogg is the Trustee in Bankruptcy. The Department of Energy (DOE) filed a pr...
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OPINION In this contested matter, movants seek dismissal of the debtors’ chapter 11 bankruptcy case. Movants argue first that chapter 11 relief is not available to individual debtors not engaged in business and second that the bankruptcy case was not filed in good faith. For the reasons discussed below, I reject both of movants’ arguments. I will thus decline to dismiss the case. 1 ...
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DECISION AND ORDER Massachusetts Mutual Life Insurance Company (“Mass. Mutual”) issued a life insurance policy (“policy”) to the debtor, Columbus Broadway Marble Corporation (“Columbus” or “debtor”), on the life of one of the debtor’s principals, Robert J. McConnell (“McConnell”). The debtor was designated in the policy as the owner and beneficiary. After the principal died, Mass. Mutual ...
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ORDER RECONSIDERING FORMER JUDGMENT DENYING DISCHARGE, ON INSTRUCTIONS FROM THE DISTRICT COURT, AND, ON RECONSIDERATION, DENYING COMPLAINT OF PLAINTIFF OBJECTING TO DISCHARGE AND ACCORDINGLY GRANTING DEFENDANT HER DISCHARGE IN BANKRUPTCY On April 15, 1986, after full trial of the issues which had been joined on the plaintiff’s objection to the defendant’s discharge in bankruptcy on the gr...
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MEMORANDUM OF OPINION ON COVENANT NOT TO COMPETE AND MARSHALING OF ASSETS First City National Bank of Midland (Bank) filed a Motion for Marshaling of Assets seeking to have the Federal Deposit Insurance Corporation, as the Successor in Interest to the First National Bank of Midland, Texas (FDIC), satisfy its liens out of otherwise unencumbered assets of the estate. The Bank would then be ...
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MEMORANDUM INTRODUCTION On November 2, 1987, 79 B.R. 511, this Court entered judgments with respect to Counts 4, 5, 7, 8, 9, 10, 16, 17, 18, 20, 22, and 26 of the Trustee’s 29 count complaint against two of the above named nine defendants, namely John Cavatorta and Alfred Aponas. Additionally, in the opinion that accompanied those judgments, the Court explained the disposition of Counts 1, 2, 3, ...
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ORDER DENYING PLAINTIFF’S JURY DEMAND This matter comes before me upon plaintiffs demand for a jury trial in an adversary case to determine the dischargeability of a judgment debt against the debtor. Pursuant to 28 U.S.C. § 1334, 28 U.S.C. § 157, and the Order of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc entered by the district court, I have jurisdiction to determine the...
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MEMORANDUM AND OPINION FACTS On November 2, 1979 Paula Eubanks Green, (the “Debtor”), obtained a Health Education Assistance Loan, (“HEAL” loan), pursuant to the Health Professions Educational Assistance Act, 42 U.S.C. §§ 294f et seq. (the “Act”), in the amount of $6,362.00 plus interest from the Chase Manhattan Bank (the “Bank”). The Debt- or used the loan to finance her attempted dental s...
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DECISION and ORDER ON OBJECTION TO CLAIM Claimant, State of Ohio, Bureau of Workers’ Compensation, filed three proofs of claim in the present Chapter 11 case. The claims are for pre-petition unpaid workers’ compensation premiums. The parties have settled all issues, including agreeing on an amount of $14,064.10 for Claim No. 97, except for a single issue which is here presented. That issu...
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83 B.R. 937 (1988) In re MID-AMERICA PETROLEUM, INC., et al., Debtors. MID-AMERICA PETROLEUM, INC., et al., Plaintiffs, v. ADKINS SUPPLY, INC., et al., Defendants. Bankruptcy No. 587-50046-11, Adv. No. 587-5017. United States Bankruptcy Court, N.D. Texas, Lubbock Division. March 1, 1988. *938 *939 Nicholas Katsonis, Palmer & Palmer, Dallas, Tex., for debtor. T. Ray Guy, Jenkens & Gilchris...
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MEMORANDUM DECISION RE: OBJECTION TO PROOF OF CLAIM FOR DAVIDSON On January 4, 1988, a hearing was held on the objections to the Proofs of Claim filed by Hugh Loring McCormick and Ha*545rold Davidson & Associates, Inc., two appraisers. Present were Wayne I. McClas-key, Esq., attorney for Bettie J. Lane, a creditor (“Creditor Lane”), who filed the objections, Cuyler Shaw, Esq., attorney for Howard...
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MEMORANDUM OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT STATEMENT OF THE CASE Glenn M. Ayers, Defendant, filed a petition for relief under Chapter 7 of the Bankruptcy Code on September 22, 1986. Colonial-Interstate, Inc., Plaintiff, is listed in Defendant’s bankruptcy schedules as an unsecured creditor holding a disputed claim in the amount of $7558.51. On December 29,...
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ORDER Now before the Court is Defendant’s Motion to Dismiss the Complaint filed by the Trustee in this adversary proceeding. The movant contends that Trustee’s Counts I and II should be dismissed pursuant to Rule 12(b)(6) Federal Rules of Civil Procedure and Bankruptcy Rule 7012 for failure to state a claim upon which relief can be granted, pursuant to Rule 9(b) Federal Rules of Civil Pro...
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OPINION AND ORDER SUSTAINING MOTION FOR SUMMARY JUDGMENT This matter is before the Court upon a motion seeking summary judgment filed by plaintiff, The Official Unsecured Creditors’ Committee (“OCC”), on behalf of the estate of debtor Titan Energy Corporation (“Titan”). OCC’s standing to bring this action is established pursuant to a term of the plan of reorganization confirmed by this Co...
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DECISION AND ORDER DENYING MOTION OF DAYTON SPENCER, INC. TO SET ASIDE ORDER PERMITTING REJECTION OF EXECUTORY CONTRACT This matter is before the court upon a motion of Dayton Spencer, Inc. (“Spencer”) to set aside a previous order of this court permitting the trustee in bankruptcy to reject an executory contract. The motion is opposed by the First National Bank, Dayton, Ohio (“FNB”). Fro...
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OPINION The issue in this Chapter 13 case arises from Anne E. Owens’, (“the Debtor”), un *962 successful attempts at becoming a medical doctor. In 1978 the Debtor was admitted to and enrolled in the University of Chicago Pritzker School of Medicine. She financed her medical education through a scholarship agreement with the National Health Service Corps., (“NHSC”). Under the agreement the NHS...
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MEMORANDUM OF DECISION On July 23, 1986, and September 20, 1986, debtor and defendant Ellen Hodges purchased tools, a tool chest, and a tool cabinet from plaintiff Sears, charging the purchases on her Sears charge card. The agreement signed by the debtor when she applied for the card provides that Sears retains a security interest in all items purchased until they are paid for. The debtor *26 ...
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ORDER ON MOTION TO DISMISS APPEAL This matter is before the Court upon a motion filed on behalf of the Federal Land Bank of Louisville (“FLB”) seeking to dismiss the appeal of this Court’s order of October 9, 1987, 79 B.R. 728. The motion is premised upon the failure of appellants Charles and Ruth Clark to comply with the provisions of Bankruptcy Rule 8006 which require the filing of a statemen...
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MEMORANDUM OF OPINION ON ISSUES OF MINERAL CONTRACTOR AND ACCOUNTS RECEIVABLE The Debtor in the captioned proceeding under Chapter 11 of the Bankruptcy Code, Mid-America Petroleum, Inc. (MAP), owned a fractional working interest in various oil and gas leases in the Taylor-Link Field in Pecos County, Texas. Various third parties owned the balance of the working interest in each lease.1 MAP entered...
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ORDER ON APPLICATION TO COMPROMISE CLAIM AND TO SELL PROPERTY This matter is before the Court upon the Application to Compromise Claim and To Sell Real Property (“Application”) filed by Planned Systems, Inc., the debtor-in-possession in this Chapter 11 case, and the objection thereto . filed by Charles D. Megla (“Megla”). The debtor-in-possession’s Application was heard on February 8, 198...
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DECISION AND ORDER DENYING MOTION FOR DISMISSAL This matter is before the court upon the motion to dismiss filed by the trustee, supported by memorandum, and the opposing memorandum of debtor. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), matter...
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OPINION A. INTRODUCTION AND PROCEDURAL HISTORY This is an adversarial proceeding in which a contracting firm operating as a Chapter 11 debtor-in-possession sought to collect five separate and apparently unrelated accounts receivable from five Defendants. All that remains before us for disposition is a dispute between the Debtor, a sub-contractor in the construction of a facility for ...
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ORDER THIS MATTER comes before the Court on the Motion of Fulton and Julia Klober-danz (“Debtors”) to confirm their Amended Chapter 12 Plan and the two Objections to the Amended Chapter 12 Plan filed by William M. Bass, the Chapter 12 Standing Trustee (“Trustee”), and the Debtors’ principal secured creditor, Commercial Bank o.f Sterling (“Bank”). The Bank also filed a Motion for Relief fr...
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ORDER RE: CLAIM OF NATURAL GAS ASSOCIATES OF COLORADO THIS MATTER came on for hearing on the objection to the claim of Natural Gas Associates of Colorado (“NGA”). The Debtor herein filed its voluntary petition in bankruptcy under Chapter 11 on December 2, 1985. Prior to that date, NGA was retained by a law firm representing the Debtor in litigation against People’s Natural Gas as experts in t...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in the above-styled adversary proceeding is a Complaint seeking exception to discharge filed by Christopher Hardwick (Plaintiff) pursuant to 11 U.S.C., Section 523. Counts I and II of the Complaint were dismissed by order of this Court on January 28, 1987 leaving Count III for resolution. Count III ...
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ORDER ON MOTION FOR RELIEF FROM STAY BY SUN BANK OF TAMPA BAY The matter under consideration in the above-captioned Chapter 13 case is a motion filed by Sun Bank of Tampa Bay (mov-ant) seeking relief from the automatic stay pursuant to Section 362 of the Bankruptcy Code. The movant filed a complaint in the Circuit Court of Hillsborough County, Florida seeking to foreclose against the...
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MEMORANDUM OPINION Debtor filed his petition under Chapter 13 on August 3, 1987. Landmark Bank of Springfield filed its original claim on August 27, 1987, showing $9,771.59 as unsecured and a value of security as $21,604.27 or else a secured claim of $21,604.27 or else a total claim of $21,604.27. Frankly, the Court cannot tell from the claim form what Landmark Bank is claiming. On October 8, 1987...
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MEMORANDUM OPINION This chapter 11 case is presently before the court upon the Motion For Dismissal, Dismissal With 180 Day Prohibition Against Refiling, Or Conversion Of Chapter 11 Case To Chapter 7, filed by the United States Trustee for the Central District of California, and the Opposition thereto, filed by the debtor-in-possession, Van Owen Car Wash, Inc. The United States Trustee re...
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ORDER ON DEBTOR/DEFENDANT ROSE’S MOTION TO DISMISS THIS CAUSE came on to be heard upon the Motion to Dismiss filed by Debt- or/Defendant Rose (Debtor) in the above-captioned adversary proceeding. Debtor seeks the dismissal of the Amended Complaint to Determine Dischargeability of Debt under § 523(a)(6) filed by Plaintiff, Shelby Mutual Insurance Company (Shelby). The relevant facts for resolution...
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ORDER The drunk driver and his discharge Is a default judgment another fruit of the bottle to face when sober and hanging over in bankruptcy? Government Employees Insurance Company (GEICO), as subrogee of Brian and Karen McBride, seeks to prevent the discharge of a debt of David Luther Bennett, the debtor. GEICO comes before the Court on a motion for summary judgment on ...
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MEMORANDUM OPINION We now consider the Rule 12(b)(6) motions filed by Hoffman Industries, Inc. and Sinking Spring Foundry (collectively, “defendants”) in the above-referenced adversaries, both of which request that we dismiss the complaints filed against them by Manson-Billard, Inc., et al. (“debtors”) based on debtors’ failure to state a claim upon which relief can be granted. This memor...
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OPINION This contested matter involves a creditor’s objection to confirmation of the debt- or’s chapter 13 plan on the basis of 11 U.S.C. § 1325(a)(3). The creditor contends that the plan has not been proposed in the requisite good faith and that consequently confirmation must be denied. For the reasons set forth below, the objection shall be overruled and the debtor’s plan will be confirmed....
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ORDER Before the court is a motion for post-confirmation modification of a Chapter 12 plan. The motion was filed on January 8, 1988, and amended on January 20, 1988. The proposed modification is resisted by the United States Trustee, the standing Chapter 12 trustee and the Federal Land Bank of St. Paul (FLB). A hearing was held on January 20, 1988. The Debtors filed their Chapter 12 ...
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OPINION Stanley S. Labovitz (the “Petitioner”) has filed a pleading entitled “Petition” requesting the sum of $9,675.00 for services as assignee for the benefit of creditors of Colony Press, Inc. (the “Debtor”). The petition presents the Court with a question of first impression in this Circuit concerning the possible conflict of interest involved where a lawyer for a debtor also serves a...
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*990 MEMORANDUM DECISION On March 28, 1986, Florence and John W. Grimm filed a joint petition under chapter 7 of the Bankruptcy Code. An adversary proceeding to determine the dis-chargeability of a debt pursuant to section 523(a)(6) was filed on June 10, 1986. The debt, totalling $34,598.67 exclusive of interest, is founded on a judgment entered February 18, 1986, in a case capti...
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MEMORANDUM OPINION Plaintiff Gerald G. Scott (“debtor”) has filed this Complaint for Declaratory Judg *761 ment requesting that we declare that a certain stipulation remains in full force and effect, and that we order Patricia K. Quinn (“defendant”) to vacate the premises pursuant to the terms of the stipulation. We find that the stipulation and a later Addendum thereto are i...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court seeking to have certain debts excepted from discharge under 11 U.S.C. Section 523(a)(4). A trial was held December 30, 1987, and upon the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1.Defendant, Lawrence A. Kelley (“Kelley”), own...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COMPLAINT TO SELL INTEREST OF CO-OWNER IN REAL PROPERTY I.Statement of the Proceedings This matter is before the Court following trial on January 21, 1988, of a Complaint filed by George Yakubesin, the debtor in a Chapter 13 case pending before this Court. The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(b) an...
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MEMORANDUM OPINION Before the Court is Assignee, Doyle Equipment Company’s (“Doyle”) Complaint for Judgment against Erickson of Johns-town, Inc. (“Erickson”) and Joseph Colavec-chi, Esq. (“Colavecchi”) counsel to the Assignor, Robert T. Noel Coal, Inc. (“Noel”). Doyle alleges that Erickson improperly transferred funds to Noel, in violation of a Court Ordered assignment, and therefore must...
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OPINION Before us is a Motion for a Preliminary Injunction by the Plaintiff-Debtor, a partnership operating the Broad Street Hospital and Medical Center in Philadelphia, and its three general partner-physicians, Dr. Raymond D. Silk, Nicholas A. Canuso, and Eugene Spitz, seeking to enjoin all parties who have sued the Debtor and/or the general partners individually from proceeding against ...
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MEMORANDUM OPINION This proceeding is predicated upon complaint seeking to determine the extent of a lien against property of the estate. The plaintiff has filed a motion for summary judgment which raises the following issue: Does the failure to expressly include an “after-acquired property” clause in a security agreement preclude the Court from finding that the parties may have inte...
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MEMORANDUM OPINION LOUIS AND BARBARA GARZARELLI (hereinafter referred to as “the Movants”), record owners of a premises located at 408 North 64th Street, Philadelphia, Pennsylvania 19151 (hereinafter referred to as “the Premises”) filed, on January 14, 1988, a motion seeking relief from the automatic stay, pursuant to 11 U.S.C. § 362(d), as to the Debtors in this Chapter 13 bankruptcy cas...
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MEMORANDUM OPINION The Court has for consideration Debtor’s motion to dismiss his Chapter 11 case. A hearing on the motion was held February 7, 1988, at the conclusion of which the Court announced its intention to take the matter under advisement to permit the filing of briefs by interested parties. Based upon the evidence presented, the argument of counsel, and such briefs, the Court fin...
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ORDER ON OBJECTION TO CLAIM This matter is before the Court upon the debtors’ objection to a claim asserted by the West Virginia Department of Taxation (“W.Va.”). The objection was opposed by W.Va. and was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and by the General Order of Reference entered in this district. This matter is a core proceeding ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon motion for relief from automatic stay and adequate protection filed by creditors Century 21 Executive Center Trust No. II and Century 21 Executive Center Trust No. Ill (hereinafter referred to as “Century 21”). Hearings on this motion were held on January 11, 1988, and January 13, 1988, and upon the evidence presented, t...
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ORDER This matter was heard on December 15, 1987, on the trustee’s objection to the Debtors’ claimed exemption of certain property as earnings under MINN.STAT. § 550.37, Subd. 13. Henry J. Eslinger represents Richard L. Nelson, trustee; and Jerry P. Probst represents the Debtors. Based on arguments at the hearing and memoranda submitted by counsel, the Court now being fully advised in the matte...
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ORDER Before the Court are Debtors’ 1 motions: for determination of secured status regarding a 7720 John Deere combine, including its corn and bean heads; and for avoidance of Farmers State Bank’s (Bank) lien on the combine under 11 U.S.C. § 506(d) and, if necessary, 11 U.S.C. § 522(f). An eviden-tiary hearing to determine the value of the combine was held on December 18, 1987....
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DECISION ON MOTION TO DISMISS Contesting both subject matter and personal jurisdiction, Choquette & Company, Inc. (Choquette), the defendant, seeks dismissal of this adversary proceeding for the recovery of a preference. FACTS Outlet Department Stores, Inc. (the Debtor) operated department stores in Rhode Island, Massachusetts and Connecticut. It purchased merchandise from Cho-q...
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MEMORANDUM CONCERNING MOTION TO RE-OPEN TIME FOR FILING COMPLAINTS OBJECTING TO DISCHARGE Before the Court is the motion of Maryland Casualty Company and its parent company, American General Life Insurance Company of Delaware (hereinafter referred to collectively as “Maryland Casualty”) to re-open the time for filing complaints objecting to discharge of the debtors under 11 U.S.C. § 727. Movant...
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MEMORANDUM OPINION THIS MATTER comes before the Court on the Objection to Debtors’ Claim of Exemption by the Farmers State Bank & Trust Co., Aurora, Nebraska (Fil. #69, July 14, 1987). A hearing was held on this matter on October 27, 1987. Rick D. Lange of Rembolt, Ludtke, Parker & Berger, Lincoln, Nebraska, represented the creditor. Clay B. Statmore, Lincoln, Nebraska represented the Deb...
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MEMORANDUM AND OPINION FACTS On April 27, 1984 Darlene and Alva Cooper, (“Darlene” and “Alva” respectively), were divorced. The divorce judgment incorporated by reference a separation agreement entered into by Darlene and Alva on February 21, 1984. Among other things, the separation agreement provided that Alva was obligated to pay the couple’s 1983 Federal income taxes and the 1983 ...
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MEMORANDUM OPINION Before the Court is the request for payment of administrative expense for rent and contractual liability on lease filed by New England Merchants Leasing Corporation B-3 of Boston, Massachusetts (New England) in the above cases. In its request, New England has asserted a claim in the total amount of $154,546.92, arising from a lease agreement between one of the debtors, ...
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RULING ON TRUSTEE’S OBJECTION TO CONFIRMATION OF PLAN I. The question raised in this chapter 13 case is how to estimate, in the absence of evidence, the cost of estate liquidation in a hypothetical chapter 7 case for purposes of determining the best-interest-of-creditors test at a hearing on plan confirmation. Under 11 U.S.C. § 1325, a court must initially make six affirmative findin...
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OPINION This is a complaint seeking to have indebtedness represented by default judgments against Richard J. Sarapas (the “Debtor”), declared nondischargeable under any one or more of the foregoing provisions of Title 11: § 523(a)(4) (debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny”); § 523(a)(3)(B) (debt “neither listed nor scheduled ... in ti...
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MEMORANDUM OPINION At the conclusion of the trial held on February 18, 1988 with respect to the above-captioned involuntary petitions, this Court entered an oral Order dismissing all three involuntary petitions on the ground that petitioning creditor, John T. Tierney, III (hereinafter “Petitioner”) failed to establish the requisite elements for adjudication set forth in the Bankruptcy Code at 11 ...
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MEMORANDUM OPINION The matter presently before the Court is secured creditor Mellon Bank’s oral request, made at a hearing on Debtor’s motion to sell free and clear, to receive immediate payment of proceeds of sale of a piece of heavy machinery. Mellon Bank has submitted a “Memorandum of Law In Support of the Proposition that, When a Secured Creditor’s Collateral is Sold Pursuant to ...
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DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ORDER SETTING TRIAL Before the court is a Motion of Sears, Roebuck and Company (Plaintiff) for summary judgment against Linda L. Gault (Defendant-Debtor). For Sears to prevail, it must be shown “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law...
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MEMORANDUM OPINION “Parvis e glandibus quercus”, and from a humble Chapter 13 undistinguished except for the disagreement between the First Community Bank (hereinafter Bank) and the debtor, William Reynolds, comes what debtor claims is a Constitutional right to make a semi-biblical tithe of $80.00 per month to the Assembly of God, the Church of debtor’s choice. Even more importantly debtor clai...
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83 B.R. 652 (1988) In re Dennis GRELL, Debtor. FIRST STATE BANK OF WYKOFF, Plaintiff, v. Dennis GRELL, Kathryn Grell, and Timothy D. Moratzka, as Trustee in Bankruptcy, Defendants. Bankruptcy No. 3-86-3041, Adv. No. 3-87-0033. United States Bankruptcy Court, D. Minnesota, Third Division. March 4, 1988. *653 David Jennings, Winona, Minn., for plaintiff. Roger Peterson, Rochester, Minn., for defend...
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MEMORANDUM OPINION AND ORDER ON DEBTOR’S MOTION TO OBTAIN DETERMINATION OF THE COURT AS TO APPLICATION OF PAYMENT OF PRIORITY FUNDS The Debtor, Tentex Marine, Inc., (hereinafter “Debtor”), filed a motion on Decern- *531 ber 1, 1987, on which a hearing was held January 11, 1988, the said motion asking the court to determine and designate an allocation of payments to the United...
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MEMORANDUM OPINION The matter presently before the Court is the Trustee’s complaint for recovery of a preferential payment. Joseph M. Eaton Builders, Inc. (Debtor), filed a voluntary petition under Chapter 7 of the United States Bankruptcy Code on March 23, 1987. On or about January 9, 1987, Triangle Pacific Corporation (Defendant), indexed a judgment against Debtor in the amount of $4,202.34. On ...
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OPINION This case presents the question of whether the principal of a Chapter 11 debtor who *191 is an accommodation maker with the debtor on a note is entitled to an injunction at the request of the debtor enjoining suit against him on the note by reason of the effect the suit has upon him and derivatively upon the debtor. Frederick J. Roper, Sr. (“Roper”) owns 65% of the ca...
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MEMORANDUM OPINION ON MOTIONS FOR SANCTIONS STATEMENT OF THE CASE On May 8, 1987, TV Tempo, Inc., Debtor, and Paul M. King, Debtor, each filed a separate petition for relief under Chapter 11 of the Bankruptcy Code. M. Usman Mirza and Melora P. Mirza, Movants, were listed in each case as unsecured creditors holding a disputed claim in the amount of $1,200,000. Movants’ claims were bei...
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DECISION AND ORDER ON APPLICATION TO LIFT THE STAY The CIT Group/Equipment Financing, Inc., (CIT) asks us to lift the automatic stay so that it may foreclose its perfected security interests in the debtors’ accounts receivable and inventory. CIT claims that it is not adequately protected and that the debtors have no equity in their accounts receivable and inventory, neither of which are necessa...
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ORDER This matter comes before me upon debt- or’s emergency motion for order to show cause and for certificate of civil contempt. Although the motion seeks to certify the matter to the district court so that the district court may finally determine whether civil contempt is warranted, I conclude that certification is unnecessary. Resolu *832 tion of this matter turns solely upon the applicabi...
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MEMORANDUM OPINION This matter is before the Court on cross-motions for summary judgment concerning the dischargeability of a debt under 11 U.S.C. § 523(a)(9). There is no genuine issue of material fact and the legal issue framed by the motions concerns the proper interpretation of that section. The Court concludes that it is not appropriate to enter a summary judgment regarding the discharge...
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AMENDED MEMORANDUM OPINION Advanced Professional Home Health Care, Inc., (“Advanced”), brought this action, Adversary Proceeding No. 86-1052, under 11 U.S.C. § 541, to recover monies withheld from post-petition partial interim payments by Blue Cross and Blue Shield of Michigan (“Blue Cross”) and the Department of Health and Human Services. Subsequently, Blue Cross was dismissed as a defen...
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ORDER Brought for trial on September 17, 1987, was a Complaint of Mary Boyle against the Debtor/Defendant, Roy A. Maxted Sr. and co-defendants Ben Sautter, Dottie Jette, John C. Hansen and Marcel Turcotte. The gravaman of the Complaint alleges that Roy A. Maxted, Sr. and the co-defendants fraudulently transferred property of the Debtor among the Defendants to hinder or delay Mary Boyle’s ...
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OPINION The narrow issue before me is whether a criminal restitution obligation may be discharged in a chapter 13 case. The debtors have commenced an adversary proceeding seeking a determination that an order of criminal restitution requiring them to make payments to the Bucks County Adult Probation and Parole Department represents a dischargeable unsecured debt which is provided for by t...
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MEMORANDUM OF DECISION I. The trustee in a chapter 7 case objects in this adversary proceeding to the granting of a discharge to Jeffrey R. Kilson (the debtor) contending that the debtor knowingly and fraudulently made false oaths in or in connection with his bankruptcy case. 1 The debtor’s post-trial brief raises two principal issues: (1) whether the debtor’s alleged init...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW The debtors, by Terrence J. Byrne, have brought a motion pursuant to 11 U.S.C. *986 § 522(f)(2) and Bankruptcy Rule 4003(d) to avoid liens on certain farm tools and implements. The Abbotsford State Bank (Bank) appears by William C. Gamoke and holds perfected security interests in the farm tools and implements of the debtors. The Bank...
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*642 ORDER This proceeding was commenced by the Chapter 7 trustee of the Timothy E. and Gloria J. Loe bankruptcy case, against MICO, Inc. Profit Sharing Plan (the Plan) and the Trust for the Plan, for turnover of funds representing the Debtor, Timothy Loe’s, interest in the Plan. Cross-motions for summary judgment and a Stipulation of Facts were filed; oral arguments were heard o...
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MEMORANDUM AND ORDER Metlife Capital Credit Corporation, a creditor, asks the court to reconsider its order of November 18, 1987, sustaining the objections of the debtor, Excello Press, Inc., and the creditors committee to the Metlife claim and disallowing it and for rehearings or for new trials on the disal-lowance of its claim, and denials of its motions to stay and to vacate a portion ...
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83 B.R. 290 (1988) In re Detra FOX, Debtor. Detra FOX, Plaintiff, v. Estelle HILL, Defendant. Bankruptcy No. 87-03694S, Adv. No. 87-0988S. United States Bankruptcy Court, E.D. Pennsylvania. March 3, 1988. Philip A. Bertocci, Community Legal Services, Inc., Philadelphia, Pa., for debtor-plaintiff. Rames J. Bucci, Philadelphia, Pa., for defendant. Edward Sparkman, Philadelphia, Pa., trustee. OPINI...
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MEMORANDUM OPINION AND ORDER ON MOTION TO DISMISS AMENDED COMPLAINT At issue is the sufficiency of an amended complaint (“Amended Complaint”) filed by Dorothy Eisenberg, the Chapter 7 trustee of Sattlers, Inc. (“Sattlers”), against the Bank of New York (“BONY”). The Amended Complaint was filed in response to this court’s opinion and order of May 1, 1987 (the “First Opinion”), familiarity with w...
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The court lifted the automatic stay in the plaintiffs’ (the Hills’) bankruptcy case so that First National Bank of McMinnville could foreclose a mortgage on the Hills’ land. The bank transferred the mortgage to the defendant, Earthman, who began foreclosure. Earthman and the Hills disagreed over who was entitled to nursery plants the Hills were raising on the land. The Hills threatened to ...
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OPINION The issues in this adversary proceeding, involving allegedly preferential transfers, have been submitted by the parties for decision based on a joint Stipulation of Facts including joint exhibits. The transfers were payments by check of debtor-plaintiff, Excel Enterprises, Inc., to the creditor-defendant, Sikes, Gardes & Co. (then Broadhurst, Sikes & Gardes) for bookkee...
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OPINION A. INTRODUCTION AND PROCEDURAL HISTORY The instant proceeding is an action in which the Trustee of a defunct commercial airline now a Chapter 11 Debtor seeks to avoid alleged preferential transfers by the Debtor of substantial sums (approaching $1 million) to the Internal Revenue Service (hereinafter referred to as “IRS”). Herein, we revisit a factual pattern which we address...
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MEMORANDUM OPINION The trustee in this chapter 11 case has filed a motion to reject an executory contract. This motion is opposed by Merrill, Lynch, Pierce, Fenner and Smith (Merrill Lynch), the other party to the contract, on the ground that there is no executory contract to reject within the meaning of 11 U.S.C. § 365. The official committee of unsecured creditors supports the trustee’s...
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ORDER RE: ORDER TO SHOW CAUSE WHY CITY BANK SHOULD NOT BE HELD IN CONTEMPT AND SUBJECT TO SANCTIONS On or about September 29, 1987, the Trustee served a subpoena to witness on the Custodian of Records for City Bank. Said subpoena incorporated a description of documents contained in an Order Compelling Attendance and Production of Documents dated September 29, 1987. The documents requested...
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ORDER Brought for hearing on January 19,1988, was the Debtor’s Motion to Avoid Lien. At trial, the only contested issue was the interpretation of MontCode Ann. § 25-13-609(3). The Court granted both parties fifteen (15) days to brief the issue. *305 Both briefs have now been filed and this matter is deemed submitted. Section 25-13-609(3), MCA, states: “A judgment debtor is entitled to exe...
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MEMORANDUM OPINION The question presented is whether an agreement to reassign a liquor license is a security interest, and, if it is, whether it has priority over a federal tax lien obtained pursuant to 26 U.S.C. § 6321. The following facts were stipulated: 1. On October 26,1983, Terry Lee Falbe sold tangible and intangible personal property to S.L.B. Enterprises, Inc. Included ...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Debtors’ Motion for Confirmation of Chapter 12 Plan (Fil. # 32), and Objection to that Plan (Fil. # 40). At a confirmation hearing held August 19, 1987, it was determined that a trial was necessary to resolve factual issues and a trial was originally scheduled for October 14, 1987. The trial was held on November 3, 1987. A...
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OPINION REGARDING ALLOWANCE OF ASSERTED ADMINISTRATIVE PRIORITY CLAIM Does the Debtors’ postpetition retention of leased equipment mandate allowance of an asserted administrative priority claim, pursuant to 11 U.S.C. §§ 503(b)(1)(A) and 507(a)(1), when the Debtors have neither rejected nor assumed the lease pursuant to court approval and have not used the equipment since the filing of the...
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DECISION This case comes before the court on an objection to the debtor’s motion for lien avoidance under 11 U.S.C. § 522(f)(1). A decree of divorce entered by a Wisconsin state court granted the debtor’s ex-spouse a lien on the debtor’s residence to secure payment to the ex-spouse of her portion of the property division. The debtor is seeking to avoid this lien under § 522(f)(1) as impai...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon cross-motions for summary judgment. The issue presented is the right of the bankruptcy trustee to reach benefits under a testamentary trust when there is no enforceable spendthrift provision. THE FACTS On April 28, 1987, the defendant herein filed a voluntary petition for relief under Chapter 7 of the Bankrupt...
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ORDER ON APPLICATION TO SEQUESTER RENTS AND PROFITS On July 7, 1987 a telephonic hearing on applications to sequester rents and profits and conditional request for hearing in the above entitled cases filed on behalf of the Federal Land Bank of Omaha (FLB) was held before this court in Des Moines, Iowa. Thomas 0. Ashby appeared on behalf of the FLB and William L. Needier appeared on behalf...
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MEMORANDUM AND ORDER INTRODUCTION This matter came before the Court for trial on December 1, 1987. Mr. Bert Blackwell appeared on behalf of the Debtor and no one appeared on behalf of Trustee, Kathleen A. Laughlin, who had previously set forth the grounds for her objection in her motion. The Trustee of the bankruptcy estate of John P. Dunn filed an Objection to Discharge of Post...
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MEMORANDUM ON CROSS-MOTIONS FOR SUMMARY JUDGMENT The debtors seek to recover from defendant, a judgment creditor, the sum of $687.74 as a voidable preference under § 547(b) of title 11. Their right to recovery is premised on 11 U.S.C.A. § 522(h) (West Supp.1987). 1 Plaintiffs and defendant have filed cross-motions for summary judgment. 2 This is a core proceeding. ...
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*508 MEMORANDUM ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT By this adversary proceeding, the debtors seek to recover from defendant, a judgment creditor, the sum of $687.74 as a voidable preference under § 547(b) of title 11. Their right to recovery is premised on Bankruptcy Code § 522(h). 1 In his answer, the defendant raises several affirmative defenses inclu...
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MEMORANDUM OPINION The instant motion for relief from the automatic stay presents difficult issues for resolution engendered by the bankruptcy of the sole shareholder and principal of a closely held corporation. Unfortunately for the corporate shareholder/principal, the stock of the corporation was pledged as security by him to the former owner of the stock of the corporation when the sto...
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MEMORANDUM OF LAW This proceeding came on for hearing on Steven D. Hanson’s motion for remand pursuant to 28 U.S.C. § 1452(b). Phillip W. Bohl and William J. Fisher appeared for the Bank of New England, John J. Connelly appeared for Steven D. Hanson, and Kathryn P. Seebart, the trustee in the case of Hanson Industries, Inc., appeared in propria persona 1 The underl...
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ORDER RE: DEBTOR’S CLAIMED EXEMPTION IN PROCEEDS OF LIFE INSURANCE POLICY This Chapter 7 case is before the Court pursuant to the trustee’s objection to the debtor’s claimed exemption in the proceeds of a life insurance policy issued to the debtor’s stepfather, and under which the debtor was named beneficiary. A hearing on the trustee’s objection and the debtor’s response thereto was...
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MEMORANDUM OPINION This matter came before the Court for final hearing on the General Members Committee’s Motion for Appointment of Trustee under 11 U.S.C. § 1104. Having considered the testimony, the exhibits and arguments of counsel and having taken notice of the bankruptcy files, the Court finds that the motion is well taken and should be granted. FACTS On March 5, 1987, the ...
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OPINION The Debtor herein objects to the secured status asserted in a Proof of Claim filed by the City of Philadelphia (hereinafter referred to as “the City”) for water and sewer charges on the ground that the City failed to index or to properly docket the liens allegedly giving rise to the secured status of the claim. Although the City’s lien is open to question on several bases, we reje...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CASE is before the court on the involuntary petition of three creditors, William J. Herisko, John Frank Etchberger, and Lawrence Solodky, and the subsequent joinder by Randall A. Mingo, Barry Bar-field, Kenneth Mann, and Transcore, Inc. The case first came before the Court for hearing on November 25, 1987 on a motion to dismiss and to require f...
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MEMORANDUM OPINION This matter comes before the Court upon the complaint of Pier 5 Management Co., Inc. (“Debtor”, “Pier 5”) against its landlord, Occoquan Riverfront Partnership (“Partnership”), and the counter-claim of the Partnership against Pier 5. Each side seeks a declaration of the respective rights of the parties in respect to a twenty-year lease from the Partnership to Pier 5 of ...
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MEMORANDUM OPINION INTRODUCTION This matter is before the Court upon the Motion for Summary Judgment filed by Paric Corporation (hereinafter “Paric”). Paric filed suit against Gateway Center Building Investors, Ltd. (hereinafter “Gateway Ltd.”) and Gateway Center, Inc. (hereinafter “Gateway Inc.”) in the Circuit Court of the City of St. Louis. On the same day it filed suit, Paric sought and obtai...
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MEMORANDUM AND ORDER This matter is before the Court on a motion for summary judgment filed by the Illinois Department of Revenue (“Department”) against Robert and Dorothy Gal-breath (“debtors”). Following debtors’ discharge in bankruptcy under Chapter 7, the Department brought suit in state court to collect unpaid retailers’ occupation taxes owed by debtors pursuant to Illinois statute. ...
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ORDER ON PRELIMINARY HEARING ON OBJECTION TO CHAPTER 12 PLAN On October 8,1987 a preliminary hearing on confirmation of plan and related matters was conducted in Davenport, Iowa. Michael Roeder appeared on behalf of the debtors. The following parties appeared and objected to the plan: Elizabeth Nelson, the Chapter 12 trustee; Terry Gibson on behalf of the United States Trustee; Clemens Werner o...
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MEMORANDUM OPINION AND ORDER In this adversary proceeding the plaintiff trustee seeks a determination of the validity and extent of liens against real property co-owned by the debtor and his wife, and authorization to sell the property free and clear of liens and interests pursuant to Sections 363(f) and (h) of Title 11, United States Code (“Bankruptcy Code” or “Code”). The third cou...
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83 B.R. 339 (1988) In re GULPH WOODS CORPORATION, Debtor. Bankruptcy No. 87-03093S. United States Bankruptcy Court, E.D. Pennsylvania. March 11, 1988. Pace Reich, Philadelphia, Pa., for debtor. Thomas D. Rees, Norristown, Pa., for Lower Merion Sewer Authority. Leonard P. Goldberger, Philadelphia, Pa., Kenneth S. Goodkind, Woodbridge, N.J., for Nassau Sav. and Loan Ass'n. MEMORANDUM DAVID A. SCHO...
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ORDER ON MOTION TO AVOID LIEN On March 24, 1987 a resistance to the debtor’s motion to avoid lien filed on behalf of Marie Luise Sullivan came on for hearing before this court in Des Moines, Iowa. Donald G. Allbee appeared on behalf of the creditor, Marie Luise Sullivan, and Curtis A. Ward appeared on behalf of the debtor, Greig Ernest Sullivan. At the close of the March 24, 1987 hearing, the p...
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DECISION Pursuant to Rule 3007 of the Rules of Bankruptcy Procedure (1987) Debtor, Wed-tech Corporation, and the Official Committee of Unsecured Creditors (the “Committee”) jointly seek an order disallowing, pursuant to Bankruptcy Code Sections 502(e)(1)(B) and 502(b)(1), 11 U.S.C. §§ 502(e)(1)(B), 502(b)(1) (1986), the claims for indemnity filed by John Mariotta, founder and a former off...
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ORDER In this Chapter 11 case, Community First Federal Savings and Loan Association (Community) has filed a Motion to Excuse Compliance of a State Court Receiver (Scott Property Management, Inc. by its President Scott McDougall) with Section 543 of the Bankruptcy Code. An expedited hearing on the motion was held on March 10, 1988, with the Debtor appearing through its counsel in resistanc...
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MEMORANDUM OPINION The issue presented for decision by the debtor-defendant’s motion to dismiss this adversary proceeding is whether plaintiff’s § 523 complaint is untimely since it was not filed within sixty (60) days following the initial § 341 meeting scheduled by the Clerk. We hold that the complaint is untimely according to our interpretation of Bankruptcy Rule 4007(c). We, therefore, dism...
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DECISION In this adversary proceeding, the trustee seeks to recover an alleged preference pursuant to § 547 of the Bankruptcy Code. The defendants, Jeff Bartolameolli and Joe Bartolameolli, have filed a motion for a summary judgment dismissing the action. They contend that the accused transfer was not made on or within 90 days before the date of the filing of the petition, as required by ...
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MEMORANDUM Acting as a hypothetical lien creditor under 11 U.S.C.A. § 544(a)(1) (West Supp. *516 1987), the trustee seeks to avoid the lien of Belarus Machinery, Inc. (herein Belarus) on certain collateral securing a note of the debtor, Service Lawn & Power, Inc. 1 The trustee contends that the security interest of Belarus in the collateral is unperfected due to de...
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MEMORANDUM OPINION CONCERNING 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) and the opposition to the motion by the debtors were submitted on oral arguments and written briefs. Appearing on behalf of the debtors was William L. Needier of William L. Needier & Ass...
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ORDER In this Chapter 11 case, filed on December 15, 1987, a secured creditor, The First National Bank of St. Paul, Minnesota, has filed a Motion to Dismiss the case on grounds the filing of the petition was not in good faith, and there is not an existing partnership of the Debtor. In the alternative, the Bank seeks a declaration that the sole asset of the Debtor is no longer an asset of ...
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MEMORANDUM OPINION “The stories of bankrupts who conceal assets have assumed a form almost as conventional as the plots one finds in the plays of Plautus and Terence. Indeed, if they were told with art and possessed more fertility of imagination, a new anthology might be gathered for American literature from the bankruptcy field. As it is, they contain little more than standardized forms of fal...
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DECISION AND ORDER ON MOTION TO DISMISS COUNTERCLAIM AND CROSS-CLAIMS OF UNITED STATES OF AMERICA Marine Midland Bank, N.A. (Marine), a secured creditor of Al Nagelberg & Co., Inc. (the debtor), moves to dismiss the counterclaim and cross-claims asserted by the United States of America on behalf of Richard E. Lyng, Secretary, Department of Agriculture, on the ground that they do not state...
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MEMORANDUM OPINION Joanette Ross filed her Complaint against the State of Missouri Division of Employment Security requesting an Order from this Court requiring: 1) The Defendant return to her the benefits withheld by the Defendant; 2) prohibiting the further withholding of benefits; and 3) entering judgment against the Defendant for damages for violation of the automatic stay. In 1983, Joane...
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MEMORANDUM OPINION This Adversary Proceeding comes before the Court upon the complaint of William E. Brock, Secretary of Labor (“Secretary”) for a declaratory judgment that the actions against debtor Career Consultants, Inc. (“CCI”) contemplated by the Department of Labor under the Service Contract Act, 41 U.S.C. §§ 351 et seq., the Contract Work Hours and Safety Standards Act,...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THESE MATTERS coming on to be heard and being heard before the undersigned Judge presiding over the United States Bankruptcy Court for the Western District of North Carolina, on February 16, 1988, at a bench trial on the Complaints of Langdon M. Cooper, Trustee in Bankruptcy for Carolina Motor Express, Inc., Debtor, and Mark & Associates of North Ca...
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ORDER After reversal of this case by the Ninth Circuit Court of Appeals, Griffel v. Murphy, 839 F.2d 533, (1988), the Trustee, over objection of Griffel, moved to amend the Judgment of May 13, 1986, to reduce the Judgement to $17,839.00. The Ninth Circuit reversed the decision of this Court and remanded for disposition in accordance with its ruling. The basis of the Trustee’s motion is that under...
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MEMORANDUM OPINION This matter comes before the Court upon the objection by the United States to the rate of interest applied to its federal tax claim in the debtor’s Plan of Reorganization. Milspec, Inc. (“debtor”) filed a petition for reorganization under Chapter 11 of the Bankruptcy Code on April 23,1984, and filed its First Amended Disclosure Statement and Plan of Reorganization (“the...
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OPINION AND ORDER REGARDING JURISDICTIONAL ISSUES The issue before the Court is whether the above adversary proceeding is a core proceeding, a noncore related proceeding, or a noncore, nonrelated proceeding with respect to the various causes of action set forth in the Plaintiffs’ Complaint, as amended, and in the Defendants’ Counterclaim. On February 14, 1986, Frank John Tvo-rik, d/b/a Village Va...
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*677 MEMORANDUM OPINION This matter is before the Court on Plaintiffs Complaint to Compel Turnover filed against the Internal Revenue Service. The parties filed a Stipulation of Facts with this Court and arguments of counsel were heard. The matter was then taken under submission by the Court. After consideration of the record as a whole, the following findings and conclusions are made. Plai...
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83 B.R. 678 (1988) In re Delores ALLEN, Debtor. Delores ALLEN, Plaintiff, v. INTERNAL REVENUE SERVICE and Internal Revenue Service Agent, Diane Morrow, Defendants. Bankruptcy No. 86-03118-BKC-J13, Adv. No. 87-0034-BKC-J13. United States Bankruptcy Court, E.D. Missouri, E.D. March 16, 1988. *679 Robert D. Metcalfe, Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., Frederick J. Dana, ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court upon the Motion of Firstier Bank, N.A., of Lincoln Nebraska (Firstier), for Relief from Automatic Stay and Debtors’ Motion to Void Lien. The Court requested and the parties have submitted briefs on two issues: 1. Can § 522(f) of the Bankruptcy Code be used in Colorado in light of the wording and case history of § 38-41-20...
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ORDER DENYING DEBTOR’S MOTION FOR PRELIMINARY INJUNCTION THIS CAUSE came before the Court on the debtor’s complaint and motion for preliminary injunction in the above-referenced adversary proceeding. A hearing was conducted on January 4, 1988. Lionel Silber-man, Esquire was present on behalf of the debtor-plaintiff. William Knight Zewadski, Esquire and Roberta A. Colton, Esquire were present on be...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: UNDUE HARDSHIP PER 11 U.S.C. § 523(a)(8) The above debtor filed for relief under Chapter 7 of the Bankruptcy Code on May 3, 1982. A discharge of the debtor’s debts was entered on September 28,1982, except, by operation of 11 U.S.C. § 523(a)(8), for three governmental^ guaranteed student loans. The case was then closed on October 29, 1982. On November ...
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MEMORANDUM AND ORDER The matter before the court is to consider confirmation of the Debtors’ Chapter 12 plan as filed November 20, 1987. The Debtors’ Chapter 12 petition was filed on August 24, 1987, and confirmation of their plan came on for hearing on January 12, 1988. Written objections were filed by William and Barbara Paul, Farmers Homes Administration and the First National Bank of Linton...
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MEMORANDUM AND ORDER Before the court is a Motion to Dismiss filed by the Sargent County Bank (Bank) on December 3, 1987, by which the Bank seeks dismissal of the Debtor’s pending Chapter 11 case. As a basis for its motion the Bank, relying upon section 1112(b) of the United States Bankruptcy Code, charges that the petition was filed in bad faith and without any reasonable prospects of reorgani...
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DECISION ON ORDER TO SHOW CAUSE TO PUNISH FOR CONTEMPT This Chapter 11 debtor, Stein and Day Incorporated, seeks an order holding its warehouse, Coordinated Systems and Services Corporation (“CSSC”), in contempt for the violation of a stipulation between the parties that was “So ordered and approved” by this court on September 30, 1987. CSSC asserts that it did not violate the terms of the stipul...
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MEMORANDUM OPINION Plaintiff, Norwest Financial Consumer Discount Company (Norwest), has filed an adversary proceeding against the debtor, Carol J. Koch, seeking a determination that a debt allegedly incurred by the debtor on January 27, 1987 is nondischargeable. In addition, Norwest contends that Ms. Koch should be denied a discharge. Norwest’s positions are grounded upon 11 U.S.C. §§ 52...
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ORDER This case arises out of a tragic set of events. On March 6, 1985, Steven Wesley Brownlee, an employee of the United States Postal Service at the Hapeville, Georgia Post Office, entered the post office and shot several postal employees. Mr. Brownlee killed Phillip Sciarrone, the plaintiff’s husband, killed a second employee and wounded several others. Mr. Brown-lee was indicted on tw...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came before the Court upon the Trustee’s complaint for turnover of property of the estate, namely certain funds received by the debtor from her retirement plan. The debtor has defended the action by asserting that the proceeds are exempt from administration by virtue of a spendthrift clause contained in the retirement plan and as proceeds of an...
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MEMORANDUM OPINION AND ORDER DISMISSING THE CHAPTER 11 CASE This matter came for hearing on February 8, 1988, on the debtor’s application to extend time to file schedules and the debt- or’s motion to produce corporate books and records. The debtor and corporate president/director, Helena Brown Coles, appeared in person and through counsel, Gregory M. Coggs. The director/secretary/treasure...
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MEMORANDUM OPINION On March 10, 1987, an involuntary petition was filed against Bearhouse, Inc. (Bearhouse). Bearhouse did not contest the petition, so an order was entered adjudicating Bearhouse a debtor under chapter 7. Hon. Claude S. Hawkins, Jr., was appointed interim trustee. On March 12, 1987, Bearhouse filed a motion to convert to chapter 11, and on April 13, 1987, an order was ent...
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MOTION FOR PARTIAL SUMMARY JUDGMENT FOR ATTORNEY FEES On a motion for partial summary judgment, the plaintiff, GATX Terminals Corp., seeks a determination by this court that the attorney fees and expenses on the basis of identical contractual provisions incurred in a prior adversary proceeding between the debtor and the plaintiff, are payable by the debtor as administrative expenses under...
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MEMORANDUM OPINION This matter came to be heard upon the objections of the debtor to the claim of John Mirandas. The claim was based upon a promissory note which the debtor contended was invalid. Mr. Mirandas, an attorney licensed to practice before this court, successfully represented himself in establishing the enforceability of the note. The hearing was continued to determine whether the credit...
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MEMORANDUM OPINION After a tortuous procedural history (set out in an unpublished memorandum dated April 22,1987), the merits of an application filed by the law firm of Fox, Rothschild, O’Brien and Frankel are now before me. In this application, Fox, Rothschild seeks the allowance of professional fees of $17,-107.50 and the reimbursement of costs totaling $1,130.81 in connection with serv...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER CONFIRMING AMENDED CHAPTER 12 PLAN This matter is before the Court on the confirmation of debtors’ proposal of a Plan for adjustment of their debts pursuant to *970 Chapter 12 of the U.S. Bankruptcy Code. This action is a core proceeding pursuant to 28 U.S.C. 157(b)(2)(A) and (L). Hearing on confirmation of debtors’ Plan and...
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MEMORANDUM OPINION This matter is before the court for decision upon the second amended complaint of Eva W. Painter (herein “Painter”) against First Federal Savings and Loan Association of South Carolina (herein “First Federal”) and the trustee, John G. Leake (herein “the trustee”). First Federal has filed a motion to dismiss under Bankruptcy Rules 7008(a) *61 and 7012(b) and has stated sever...
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MEMORANDUM OPINION This adversary proceeding was commenced by a three count complaint filed July 30, 1987, by which the plaintiff, Dr. Loye A. Ashton (Ashton) seeks a determination that the failure on the part of the defendant/Debtors, Dr. Larry N. Burke and Susan Burke, to pay the balance due him in consequence of a contract to purchase his dental practice constitutes a conversion under ...
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OPINION This contested matter involves an unsecured creditor’s objection to the debtors’ chapter 13 plan on the sole ground that it does not meet the disposable income test set forth in 11 U.S.C. § 1325(b). The creditor, Philadelphia Federal Credit Union (“PFCU”), argues that because the debtors propose to continue to tithe to their church and send a child to parochial school during the p...
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82 B.R. 144 (1988) In re THE CHARTER COMPANY, et al., Debtors. Bankruptcy Nos. 84-289-BK-J-GP to 84-332-BK-J-GP and 85-1033-BK-J-GP. United States Bankruptcy Court, M.D. Florida, Jacksonville Division. January 14, 1988. *145 Parker B. Smith, Atlantic Beach, Fla., for Abourezk. Karen S. Jennemann, Jacksonville, Fla., for Charter. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING CLAIM NO. 1 CASE N...
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MEMORANDUM ORDER This matter came on for hearing before the undersigned on February 18, 1988, on the Debtors’ motion, pursuant to 11 U.S.C. § 522(f), to avoid the lien of Farmers Home Administration (“FmHA”) on certain of the Debtors’ farm machinery, equipment, and a vehicle to the extent the lien would otherwise impair their allowed exemptions. Timothy D. Clements appeared on behalf of t...
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MEMORANDUM OPINION The matter before this Court is a motion to dismiss the Chapter 7 Trustee’s Complaint seeking to compel Bi-State Development Agency of the Missouri-Illinois Metropolitan District and Division 788 Amalgamated Transit Union, AFL-CIO, Employees Pension Plan (Pension Plan) to turn over to the Trustee the sums attributable to the Debtor’s contributions to the pension plan. For reason...
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OPINION AND ORDER ON COMPLAINT TO AVOID TRANSFER This matter is before the Court following trial of a complaint filed by Larry E. Staats, trustee (plaintiff herein). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § 157(b)(2)(F). The following opinion ...
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OPINION AND ORDER ON MOTION OF LEASE LINE LTD., INC. TO CERTIFY TO THE SIXTH CIRCUIT COURT OF APPEALS This matter is before the Court pursuant to Lease Line Ltd., Inc.’s motion to certify the judgment issued in this case on November 12,1987 to the Court of Appeals for the Sixth Circuit. The debtor filed his memorandum in opposition to Lease Line’s motion on November 30, 1987. Lease Line’s motion ...
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OPINION AND ORDER DENYING PLAINTIFFS’ MOTION FOR JURY TRIAL FACTS This action arises out of the Berrymans’ (plaintiffs’) attempted purchase from the Smiths (debtors), of a “Bar and Grill” as well as other real property (the property), located in Phoenix, Arizona. In order to sell the property, the debtors were first required to exercise an option to buy certain land in which they pos...
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MEMORANDUM AND ORDER This matter is before the Court on an objection by Federal Land Bank (“FLB”) to debtor’s proposed Chapter 12 Plan of Reorganization. FLB, as an unsecured creditor, objects that the proposed plan fails to comply with 11 U.S.C. § 1225(a)(4) in that FLB would receive less under the plan than it would receive if debtor were liquidated pursuant to Chapter 7 of the Bankrupt...
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ORDER This matter is before the Court on the Application for Allowance of Compensation of Fees filed by Exchange National Bank of Chicago (“Bank”). The Bank seeks to recover fees and expenses under 11 U.S.C. § 506(b) in the total amount of $129,-432.66. 1 Objections were filed by the debt- or, the trustee and two creditors, Chevron Chemical Company and Windmill Fertilizers Amer...
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OPINION AND ORDER ON DEFENDANT WILLIAM HILLIER’S MOTION FOR RELIEF FROM JUDGMENT This matter is before the Court on the motion of defendant, William Hillier, for relief from judgment and the plaintiff’s memorandum contra to that motion. The Court has jurisdiction to determine this motion pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. On September 2, 1...
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OPINION This appeal arises from a judgment entered by the Bankruptcy Court below dismissing with prejudice the appellants/debtors’ adversary action against the appellee. The appellants’ complaint alleged violation of the automatic stay, conversion and damage to personal property. The Bankruptcy Court dismissed the complaint with prejudice pursuant to Federal Rule of Civil Procedure 37(b)(...
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84 B.R. 372 (1988) In re Donald F. KRANK, Debtor. Frank L. MARTIN, Plaintiff, v. Barbara A. MARTIN and Donald F. Krank, Defendants, and Richard A. Umbenhauer, Esq., Trustee. Bankruptcy No. 86-01426 T, Adv. No. 86-1266. United States Bankruptcy Court, E.D. Pennsylvania. March 24, 1988. *373 Thomas A. Ditto, Lancaster, Pa., for plaintiff. James R. Leonard, Jr., Lancaster, Pa., for debtor. Richard A...
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OPINION This is an adversary action filed by the Federal Deposit Insurance Corporation (referred to as FDIC), as receiver of the Atkinson Trust & Savings Bank (referred to as BANK), against Bernard Cerar and his wife, Monique Cerar (jointly referred to as *526 the DEBTORS) seeking to have certain debts originally owing to the BANK by Bernard Cerar (individually referred to as...
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MEMORANDUM INTRODUCTION The matter before the Court is the adversary complaint commenced by First Software Corporation (“First Software” or the “Debtor”) on May 20, 1986 against Computer Associates International, Inc. (“Computer Associates”). The prosecution of the adversary complaint passed from the Debt- or to David J. Ferrari, the Disbursing Agent appointed pursuant to First Softw...
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MEMORANDUM OPINION This matter comes before the Court on a motion by the United States requesting summary judgment on the involuntary chapter 7 bankruptcy petitions filed against Caucus Distributors, Inc., Campaigner Publications, Inc., and Fusion Energy Foundation, Inc. (“alleged debtors”) under § 303 of the Bankruptcy Code (“the Code”). 11 U.S.C. § 303 (1984) (amended 1986). In 1985, a ...
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MEMORANDUM OPINION The Debtor in possession, Forty-Eight Insulations, Inc., has moved pursuant to 28 U.S.C. § 455(a) for an Order recusing me from presiding in its Chapter 11 case. The Debtor alleges that my impartiality in this case might reasonably be questioned solely on the ground that it may appear to an observer that I could not treat the Debtor’s attorneys with impartiality. Forty-...
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*38 MEMORANDUM AND OPINION Nearly five years after filing their chapter 11 petition, Randy J. Reppert and Sharon A. Reppert (“debtors”) filed a motion to convert the case to chapter 12 pursuant to the Bankruptcy Judges, United States Trustees, and Family Farmer Act of 1986, P.L. 99-554 (“Act”), the relevant provisions of which are now codified at 11 U.S.C. § 1201 et seq. ...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION This matter is before the Court on the objection of John Deere Company (“John Deere”) to the confirmation of the debtor’s Chapter 13 plan. A hearing on this objection was held January 21, 1988, following which the Court took this matter under advisement. The Court has jurisdiction in this matter pursuant to 28 U.S.C. § 1334(b) and the Ge...
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FINDINGS AND CONCLUSIONS AND ORDERS The expedited hearing upon the motion of the Federal Land Bank to dismiss this case for relief from the automatic stay was called at 8:30 a.m. in Bankruptcy Court No. 1. The parties presented certain oral arguments and the Court announced its Findings and Conclusions and Orders from the bench as follows: That this is a core proceeding pursuant to 28 U.S.C. ...
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OPINION AND ORDER ON COMPLAINT TO RECOVER CASH-TYPE ASSETS This matter is before the Court on the trustee's (plaintiff herein) complaint to recover cash-type assets. The issues raised in that complaint were tried before this Court on February 8, 1988, after which the Court took this matter under advisement. The Court has jurisdiction to determine the issues raised by this case pursua...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court on January 22, 1988 upon the Complaint to Object to Claimed Exemption and to Avoid Fraudulent Conveyance filed by Plaintiffs, Gui Govaert, Chapter 7 trustee, and the Federal Deposit Insurance Company (“FDIC”) against the debtor, Robert Streh-low, Jr. and his wife, Judith E. Strehlow. The Court having heard the testim...
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OPINION AND ORDER GRANTING RELIEF FROM STAY This matter is before the court upon Western and Southern Life Insurance Company’s motion for relief from stay and Debtors’ opposition thereto. Upon consideration of the parties’ memoranda in support of their respective positions, the court finds that Western and Southern Life Insurance Company’s motion to grant relief from stay is well taken and shou...
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MEMORANDUM AND ORDER THIS MATTER comes before the Court on Mr. Marvin Copple’s request for the Court to appoint counsel to represent him. Mr. Copple made his request during a status hearing held in this adversary proceeding on January 15, 1988 (Fil. # 9). FACTS The Nebraska Department of Banking and Finance filed this adversary procedure in Defendant’s bankruptcy case to determine the disch...
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84 B.R. 161 (1988) In the Matter of Melvin E. HUBKA, Debtor. Bankruptcy No. BK85-2819. United States Bankruptcy Court, D. Nebraska. March 17, 1988. *162 Melvin E. Hubka, pro se. MEMORANDUM AND ORDER JOHN C. MINAHAN, Jr., Bankruptcy Judge. THIS MATTER comes before the Court on Debtor's pro se request to proceed in forma pauperis (Fil. # 183 and Fil. # 216), on an appeal (Fil. # 208) from the Cour...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon confirmation of the Debtor’s Second Amended Plan of Reorganization and upon the Amended Complaint of the Plaintiff, GAYE-JOY CORP., INC. (“Gaye-Joy” or “Debtor”). The complaint seeks a determination of the validity, priority and extent of EUROPEAN AMERICAN BANK’S (“EAB”) interest in a horse known as the Solar Topic...
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OPINION AND ORDER REMCO El Paso (“REMCO”), a furniture and appliance leasing and sales company has moved to compel assumption or rejection of its lease in this Chapter 13 case. Debtor responds by stating that the agreement in question is not a lease at all but a conditional sales contract. The chapter 13 plan proposes to cure the arrearages due over the life of the plan. The lease contain...
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MEMORANDUM OPINION AND ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPT PROPERTY J. Herbert Fill, the debtor, is a self-employed physician licensed to practice medicine and surgery and board certified in psychiatry. On September 19, 1985 he filed a petition under Chapter 7 of the bankruptcy code (the Code), prompted, in large part, by the docketing against him of a $1,037,644.13 judgment b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court on February 23, 1988, on the creditor’s Complaint Objecting to Discharge pursuant to 11 U.S.C. § 727 and § 523, and the Court having observed the candor and demeanor of the witnesses, examined the evidence presented, considered the arguments of counsel, and being otherwise duly advised in the premises, does hereby...
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OPINION We herein consider a secured creditor’s Objection to Confirmation of the Debtor’s Plan on the ground that it impermissibly seeks to “modify” the creditor’s rights by contemplating a “cure” of four post-petition payments totaling $400.00. We hold that, particularly in light of the fact that the last payment on the obligation underlying the creditor’s claim is due prior to the final plan ...
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MEMORANDUM OPINION AND ORDER Ashley and Betty Cherry filed for protection under Chapter 11 of the Bankruptcy Code on April 1, 1987. A plan of reorganization was filed with the Court on September 1, 1987. An Amended Plan of Reorganization was filed by the Debtors on January 7, 1988. Only CitiCorp Savings and Loan, a secured creditor, has objected to the amended reorganization plan. The hearing o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO CLAIM NO. 40 OF AUTOLEASE This case is before the Court upon debt- or’s objection to the proof of claim number 40 filed by Autolease Corporation of Florida (“Autolease”). In this claim, Autolease seeks to recover a deficiency resulting from the sale of four leased vehicles after repossession from the debtor. The debtor contends that Autolease failed to...
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ORDER RE GENERAL PROCEDURAL SUGGESTIONS At the outset of this case the court sua sponte entered its “Order Setting Status Conference Hearing On Procedural Matters For Complex Reorganization Proceeding” on January 29, 1988 setting down an initial status conference hearing on procedural matters to be held on February 26, 1988. At that hearing, and at a continuation thereof on March 11, 1988, the ...
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DECISION ON CONFIRMATION OF SECOND AMENDED PLAN After less than one year from the filing of their administratively consolidated Chapter 11 cases in this court on April 12, 1987, the debtor, Texaco Inc. and its two wholly owned financial subsidiaries, Texaco Capi *894 tal Inc. and Texaco Capital, N.V., scheduled hearings commencing March 22, 1988 for the confirmation of their ...
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MEMORANDUM OPINION At issue before the Court is the confirmation of the debtor’s Chapter 13 plan. Capitol Credit Plan of Tennessee, Inc., (Capitol) holder of the debtor’s note secured by a second deed of trust on her residential property, has objected to confirmation of the Plan on the grounds that it impermissibly modifies their rights pursuant to 11 U.S.C. § 1322(b)(2). A brief summary of t...
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DECISION ON MOTION FOR RELIEF FROM AUTOMATIC STAY The Chapter 11 debtor, Leslie I. Levine, has commenced an adversary proceeding against his wife, Ann Barbara Levine, for a turnover of certain personal property which he claims as property of the estate in accordance with 11 U.S.C. §§ 541 and 542. The parties have been engaged in heated matrimonial litigation for over four years in the New York ...
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DECISION ON COUNTERCLAIM FOR SPECIFIC PERFORMANCE The defendant, Anthony Rifino (“Rifi-no”), has filed a counterclaim for specific performance of an option to purchase residential property which he rented from the Chapter 11 debtor, Hudson Holding Associates. The debtor had commenced an adversary proceeding against Rifino to set aside the purchase option extended by the debtor to Rifino i...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court upon an Application for Turnover of Property and Other Relief filed by the Debtor and the response thereto filed by the United States. The United States through the Internal Revenue Service (IRS) claims the Debtor owes $52,893.68 for federal withholding and Federal Insurance Contribution Act (FICA) taxes. On October 20, 1...
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DECISION ON MOTION BY DERIVATIVE PLAINTIFFS’ COUNSEL FOR A PROTECTIVE ORDER PURSUANT TO FED.R.CIV.P. 26(c) Certain shareholders of the debtor, Texaco Inc., have commenced prepetition derivative actions on the debtor’s behalf in various courts against officers and directors of the debtor and against third parties, including representatives of Getty Oil Company and its affiliates, the J. Pa...
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MEMORANDUM OPINION Debtor filed her petition under Chapter 12 of the Bankruptcy Code on November 2, 1987. Debtor filed a Motion To Determine Secured Status on January 28, 1988. Tri County Trust Company (Bank) filed its response and debtor’s Motion was heard. Debtor had ten notes with the Bank. Three of those notes are what the parties called “collateral notes” in that the Bank agreed to l...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Motion of Stanley Flowers (Debtor) seeking appointed counsel to represent him in these bankruptcy proceedings. A hearing was scheduled with due notice having been served upon all parties entitled thereto. Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions: This is a core matte...
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OPINION A bank holding a mortgage and assignments of rents and leases claims the rents or adequate protection for not receiving and retaining them. The Court holds that the Bank is entitled to neither because it was not in possession of the real estate at the time this Chapter 11 case began. Involved is the resolution of an important question of state mortgage law undecided by the Supreme...
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MEMORANDUM OF OPINION AND ORDER This matter concerns the objection of Roy H. Jones (Debtor) to an allowance of a claim filed by C.I.T. Financial Services (CIT) against his estate. A hearing was held with notice having been made on all parties entitled thereto. Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions: II. This is a core proceeding under provis...
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MEMORANDUM OPINION Debtors Bobby Noah Graven and Millie Ann Graven, husband and wife, filed their petition under Chapter 12 on November 12, 1987. They thereafter filed their Plan of Reorganization and a hearing on confirmation was set for March 2, 1988. A number of creditors objected to confirmation. Foremost among the objectors was the Federal Land Bank of St. Louis, hereinafter Bank, wh...
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OPINION A. INTRODUCTION The Debtor/Plaintiff in the present Adversary proceeding seeks recoupment against a Proof of Claim of Lomas & Net-tleton Company (hereinafter referred to as “the Defendant”) in the nature of statutory damages for violations of the federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq. (hereinafter referred to as “TILA”). The Debtor alleges that she was not pro...
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MEMORANDUM OPINION The Federal Land Bank is an underse-cured creditor of James and Jo Evelyn Lewis, debtors herein, in this Chapter 12 family farmer reorganization. The Bank is owed in excess of $330,000.00 on an original loan of $240,000.00 and the land which constitutes the collateral is valued at $135,-000.00 by the debtors and $167,000.00 by the Bank. Based on this set of facts, the Bank ma...
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ORDER ON OBJECTION TO DEBTORS’ CLAIM OF EXEMPT HOMESTEAD AND MOTION TO AVOID LIEN On April 14,1987 a telephonic hearing on C. Vernon Clapsaddle’s objections to debtors’ claim of exempt homestead and motion to avoid lien was held in Des Moines, Iowa. Clapsaddle objected to the debtors’ homestead exemption claim on March 13, 1987 and the debtors resisted on March 18,1987. On this same date,...
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MEMORANDUM OF OPINION CONCERNING SETOFF The United States filed a Motion to be Relieved From the Automatic Stay on behalf of the Farmers Home Administration (FmHA) the Small Business Administration (SBA) and the Commodity Credit Corporation (CCC) to setoff against obligations owing to those agencies sums to which R.L. Thomas, Jr. (Debtor) is entitled as disaster payments with respect to his 198...
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OPINION AND ORDER GRANTING MOTION TO DEEM SETTING MOOT On February 11, 1988, Nixon State Bank (“Nixon”) filed a “Motion to Abandon Property of the Estate.” The attorney for Nixon also sent out a “Notice of Abandonment” advising all creditors in the case that, unless objections were timely filed, “the Motion shall be deemed to be unopposed and the Court may enter an order granting the reli...
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ORDER ON MOTION FOR ISSUANCE OF CONTEMPT CITATION This matter was presented to the Court on the Defendants’, Joseph A. Frates, Robert E. Merrick, Charles S. Holmes and Stan P. Doyle (the “Frates Defendants”) motion for the issuance of a contempt citation to Coopers & Lybrand (“Coopers”). At issue is the question of whether sanctions should be imposed against Coopers for its failure to ful...
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ORDER ON MOTION FOR ENTRY OF DEFAULT JUDGMENT This matter came before the Court on the Plaintiff’s motion for the entry of a default judgment against certain of the defendants in this case who have been served with process but have not answered or otherwise responded to the complaint. Arguments were heard on this matter on behalf of the Plaintiff and various objecting defendants and it was take...
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ORDER Iron Peddlers, Inc. (“IPI”) is before the court on its motion for relief from the automatic stay under Section 362 of the Bankruptcy Code. The Chattahoochee Bank (“Bank”) has filed an objection based on its claim that its security interest has *883 priority over IPI’s security interest. This is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(G) and (K). F...
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MEMORANDUM OF OPINION ON SETOFF The United States of America, acting through its agencies the Farmers Home Administration (FmHA), and the Commodity Credit Corporation (CCC), seeks to set-off sums which Roy Don Stephenson and Patsy Gaye Stephenson (Debtors) are entitled to receive with respect to their 1986 farm crops from the Agricultural Stabilization and Conservation Service (ASCS) unde...
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ORDER This matter comes before the court on Gary D. Boyn’s, (Trustee) Complaint for Turnover of Property. The parties stipulated the facts and agreed to submit this case on briefs. STIPULATION OF FACTS 1. The Plaintiff is Trustee of the above-captioned bankruptcy case, duly qualified and acting. 2. The Defendants filed their voluntary petition herein on July 17, 1986. ...
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MEMORANDUM OPINION We are herein presented with Cross-motions for summary judgment in an adversary proceeding arising out of an individual Chapter 11 case. 1 The issues presented are (1) Whether the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq. (referred to herein by its generic designation as a law prohibiting unfair or deceptive act...
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ORDER In this Chapter 11 case, a contract seller Semenza (Semenza) has filed a Motion under § 362 for relief from the automatic stay. After a response by the Debtor resisting the Motion, hearing was held on February 29, 1988, and both parties have now submitted memorandums in support of their respective positions. The facts in this case show Semenza sold a ranch to the Debtor under a...
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MEMORANDUM OPINION AND ORDER THESE MATTERS come before the Court on two applications filed by attorneys for two unrelated debtors. Each attorney is requesting that he be paid his pre-petition attorney’s fees from the assets of the respective bankruptcy estate for which he provided services. They seek payment of those fees as an administrative expense pursuant to 11 U.S.C. § 503. Additiona...
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MEMORANDUM OPINION Once again, this Court must attempt to determine the effect of an assignment of *86 rents clause in a deed of trust coupled with a collateral document assigning rents upon stated events of default. The dispute arises in the context of a rather ordinary Chapter 11 case involving rental property. Max Triplett (hereinafter “Debtor”), borrowed large sums from t...
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MEMORANDUM DECISION ON CROSS-VENUE MOTIONS Debtor is a development stage company. Its principal business is the sale of Z-Impe-mix, a product originally intended for large scale toxic waste control, but now intended for use inside containers holding toxic materials and for other similar applications. On December 27, 1986, an involuntary Chapter 7 bankruptcy petition was filed in this Court ag...
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ORDER In this Chapter 11 case, hearing on the Debtor’s Chapter 11 Plan of Reorganization was held on December 11, 1987, together with objections to the Plan filed by Interstate Production Credit Association (PCA). Ballots to the Plan are as follows: [[Image here]] Gamradt is impaired under the Plan, so that at least one class of impaired creditors has affirmatively voted in favo...
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MEMORANDUM DECISION Fitzmaurice and Buchbinder, attorneys for Stuart Weingarden, a Chapter 11 debt- or, have applied for fees for services in representing the debtor in defense of the dischargeability of the debt owed Nancy Scharaga. The firm’s application presents an issue of apparent first impression of whether an attorney may be compensated in a Chapter 11 case for services in defense of a d...
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MEMORANDUM DECISION GRANTING COMPLAINT FOR PRELIMINARY INJUNCTION AND TO SET ASIDE SHERIFF’S SALE OF DEBTOR’S REAL PROPERTY This adversary proceeding1 is before us on the complaint of Debtor to prohibit the Lake County Sheriff’s Department from issuing a deed in foreclosure to Debtor’s property, and for an Order setting aside the Sheriff’s sale. Because we find the sale was improper, we condition...
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MEMORANDUM OPINION AND ORDER THIS MATTER, comes before the Court on the Debtors’ motion to avoid a creditor’s judicial lien on their residence pursuant to 11 U.S.C. § 522(f). The issue presented is whether, under 11 U.S.C. § 522(f), a debtor may avoid a judicial lien in its entirety, or whether, under this section, a debtor is entitled to avoid a judicial lien only to the extent that...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER was tried before the Court beginning December 16, 1987, and concluding on February 10, 1988. The Court having heard all evidence and argument of counsel for the parties, hereby renders its Findings of Fact and Conclusions of Law in accordance with Bankruptcy Rule 7052, and will enter a separate Final Judgment in accordance therewith, pursuant ...
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MEMORANDUM OPINION This matter came before the Court upon the Debtors’ Motion for Cramdown against NCNB National Bank of Florida (“NCNB”) pursuant to § 1129(b) of the Bankruptcy Code (the “Code”). A hearing on the motion was held on March 10, 1988. Based upon the evidence presented and the argument of counsel, the Court finds that the Second Modification to the Debtors’ Amended Chapter 11...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause is before the court upon the motion of Florida National Bank (“FNB”) to modify the automatic stay to permit continuance of foreclosure proceedings against real property of the debtor. Hearing was held on February 24, 1988, at which time FNB proceeded pursuant to § 362(d)(1) of the Bankruptcy Code for relief from the automatic stay for cau...
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ORDER Hearing was held on March 15, 1988, on Final Application of the Debtor for compensation and reimbursement of its attorneys. This Court has previously grant *315 ed fee awards for Debtor’s counsel on two occasions, in the amount of $40,085.02 on September 28, 1987, and $17,015.25 on February 4, 1988. The $57,100.27 granted was based on two Applications which prayed for p...
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OPINION AND ORDER ON SUMMARY JUDGMENT This matter comes before the Court on plaintiff’s motion for summary judgment. It presents two issues for this Court to decide. First, is it proper to decide on summary judgment the plaintiff’s claim that it possesses a security interest in certain collateral pledged by the defendant? Second, if so, does the plaintiff, as a matter of law, possess such a secur...
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MEMORANDUM OF DECISION RE: TRUSTEE’S MOTION FOR SUMMARY JUDGMENT ON TRUSTEE’S OBJECTION TO CLAIM I. The question presented in this contested matter is whether a claimant may recover *310additional sums from the guarantor of a contract after a state-court consent judgment which the claimant obtained against the principal obligor has been satisfied. The following factual background is based upon pa...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION OF INTERNAL REVENUE SERVICE TO SUBORDINATION OF PENALTY CLAIM The Internal Revenue Service objects to confirmation of the debtor’s chapter 13 plan for the reason that it impermissibly subordinates an IRS penalty. BACKGROUND On July 15, 1985, the debtor filed a petition for relief under chapter 13 of the Bankruptcy Code. On January 31...
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AMENDED MEMORANDUM DECISION I. At issue is whether secured creditors Kostas Chelios and Susan Chelios (“the Chelios’ ”) are entitled to compensation for attorneys’ fees and costs pursuant to § 506(b) or § 503(b)(3)(D) of the Bankruptcy Code. The Chelios’ contend that (1) because the underlying unsecured agreement which lead to their receiving a judgment and ultimately a judgment lien...
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*80 MEMORANDUM OPINION FINDINGS OF FACT 1. Plaintiff is the duly appointed Trustee of the above-captioned bankruptcy estate (the “Debtor”). 2. First City Bank of Dallas (“Defendant”) is a national banking association with its principal offices in Dallas, Texas. 3. Debtor filed its original petition in bankruptcy and an order for relief was entered by this Court on ...
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MEMORANDUM OPINION These adversary proceedings are before the Court upon defendant’s motion for ab-stension. 28 U.S.C. § 1334(c)(1) An evi-dentiary hearing on the issue was held December 11, 1987, at the conclusion of which the Court directed the parties to submit written memoranda. Based upon the arguments presented, the Court concludes that abstention is not warranted. Charter Inte...
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DECISION AND ORDER United States Lines, Inc., debtor and debtor-in-possession (“U.S. Lines”), and its affiliated debtors and debtors-in-possession, McLean Industries, Inc. (“McLean”), First Colony Farms, Inc. (“First Colony”) and United States Lines (S.A.), Inc. (“S.A.)” (collectively, the “Debtors”), have moved for an order authorizing and approving a Stipulation and Agreement of Settlem...
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OPINION THIS MATTER comes before the Court on the Joint Motion to Dismiss filed by the United States Trustee (“U.S. Trustee”) and Mauna Lani Resort, Inc. (“MLRI”), the Debtor’s principal secured creditor. A hearing was held in Open Court at which time the Applicants and the Debtor, through counsel, appeared. This Court has *209 jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334. For the rea...
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MOTION TO DISMISS COMPLAINT AND PLAINTIFFS’ CROSS-MOTION TO ADD CO-DEBTORS AND FOR CONSOLIDATION The defendants, Haverstraw Associates, a partnership, and various individual members of the partnership, moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6) to dismiss the joint adversary complaint filed by the trustee in bankruptcy of the debtor, R.H.N. Realty Corp., and Red-n...
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*149 ORDER DENYING MOTION OF BONDHOLDERS’ COMMITTEE FOR MODIFICATION OF CONFIRMATION AND POST-CONFIRMATION ORDERS This Chapter 11 case came before the Court on September 15, 1987, upon the motion of Debtor’s Official Bondholders’ Committee for an order modifying the confirmation and post-confirmation orders in this case. The Committee appeared by its attorney, Scott A. Johnson. D...
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OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT These three adversary proceedings were consolidated upon the identical issue presented, namely, whether regular payments made by a debtor to a credit union on a consumer loan within 90 days of filing bankruptcy are avoidable by a bankruptcy trustee as constituting preferences under the Bankruptcy Code. In each case, the parties have filed...
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MEMORANDUM AND ORDER This matter is before the Court on a motion for summary judgment filed by debtor, Terry Pierson, Inc. Debtor’s motion was filed in response to a motion for relief from stay filed by the Bank of Car-bondale (“Bank”), a creditor claiming a perfected security interest in debtor’s property. In its motion for summary judgment, debtor contends that the Bank failed to properly per...
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ORDER ON THE MOTION TO DISMISS OR ABSTAIN This matter comes before the Court on the motion of the Colorado State Bank Commissioner requesting that the Court dismiss or abstain from hearing the petition filed by the Colorado Industrial Bank of Fort Collins for relief under Chapter 11 of the Bankruptcy Code. The United States Trustee and three depositors joined in this motion. The Industria...
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MEMORANDUM OPINION AND ORDER ON MOTIONS TO RECONSIDER AND MOTIONS TO ALTER OR AMEND JUDGMENT ON ATTORNEY FEES The attorneys for the above-named debtors filed motions to reconsider and motions to alter or amend the orders entered by this court allowing attorney fees and expenses. Since the same issue is presented in each motion, the court will consider the motions together in this opinion ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case, and the matter under consideration is a Complaint seeking a final judgment from this Court declaring a debt owed by Glenn J. Midnet (Debtor), the Debtor, and the Defendant in this adversary proceeding, to Kathleen M. Midnet (Plaintiff), the Plaintiff, to be nondis-chargeable pursuant to § 523(a)(5) and § 523(a...
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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 discharge-ability vel non, pursuant to § 523(a)(5) of the Bankruptcy Code, of an obligation admittedly owing by James H. White (Debtor) to the Plaintiff Grace T. Sehring (Plaintiff), who instituted this adversary proceeding. The Court has considered the Complaint, toge...
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ORDER ON MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSE THIS IS a Chapter 7 liquidation case originally commenced by a voluntary petition for relief filed by Vetzel Moving & Storage, Inc. (“Vetzel”) under Chapter 11 of the Bankruptcy Code. The matter under consideration is a claim for payment of an administrative expense filed by Marine. Industrial Supply, Inc. (“Marine”) who claims that it...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Summary Judgment on Count I filed by Lila Thompson (Plaintiff), the Plaintiff in the above-captioned adversary proceeding. The Court has considered the Motion, together with the record, and finds the following undisputed facts to be as follows: On December 5,1983, the P...
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ORDER ON MOTIONS TO DISBURSE SUPERSEDEAS BOND THIS IS a dismissed Chapter 11 case and the matter under consideration are two competing Motions, one filed by Natural Land Corporation (Natural Land), the Debt- or in the above-captioned case, and one by Baker Farms, Inc. (Baker Farms). Both Motions seek an order from this Court to determine whether or not Natural Land is entitled to recover a cash su...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Continued Hearing on Debtors’ Objection to Relief from Stay by David Parks and Mello Creme, Inc. At the Hearing, the parties had the opportunity to present the evidence and arguments that they wished the Court to consider in reaching its decision. The Court has reviewed the evidence and the arguments of counsel, as well ...
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ORDER ON APPLICATION FOR ALLOWANCE OF ATTORNEYS’ FEES THIS IS a confirmed Chapter 11 case and the matter under consideration is an Appli *790 cation for Allowance of Attorneys’ Fees filed by the law firm of Lancer & Vandroff, P.A., the former counsel of record for Siesta Sands Development Corporation (Debt- or). Ordinarily such an Application would not require any detailed di...
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ORDER ON MOTION FOR SANCTIONS AND ATTORNEYS’ FEES THIS CAUSE came on for consideration upon the Motion for Sanctions and Attorneys’ Fees filed by the Debtor against Gene Mason (Mason) for an alleged violation of the automatic stay. The Court reviewed the Motion and the record and heard arguments of counsel and finds the undisputed and relevant facts to be as follows: On March 4, 1987...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Debtor’s Objection to the Claim of Toledo Trust Company. At the Hearing, Toledo Trust Company requested the opportunity to file written arguments as to the Court’s discretion to allow late filed claims in cases under Chapter 13. Toledo Trust filed a Brief outlining the case law on this subject. The Court has reviewe...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 11 case and the matter under consideration is a Motion to Dismiss a Complaint filed by the Debtor against North American Title Insurance Agency, George Mills, Joan Smock and Captran Resorts International, Inc. The Complaint which consists of two counts seeks compensatory damages pursuant to § 303(i) of the Bankruptcy Code in Count I and seeks punitiv...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for a duly scheduled pretrial conference at which time both Communications Company of America (CCA), Plaintiff, and Mitel, Inc. Defendant, made oral Motions for Summary Judgment as to Counts I and II of the Plaintiff’s Complaint. It is the contention of both parties that no genuine issues of material fact exist and that Counts I and...
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84 B.R. 810 (1988) In re CARLTON FRUIT COMPANY, INC., Debtor. Gary DUBIN, Trustee, Russ Cali, Jr., Mark Langer, Mario Rodriguez and Joseph Dubin, Plaintiffs, v. CARLTON FRUIT COMPANY, INC., Defendant. Bankruptcy No. 87-843-8P1, Adv. No. 87-67. United States Bankruptcy Court, M.D. Florida, Tampa Division. March 9, 1988. Steven J. Brodie, Jr., Miami, Fla., for plaintiffs. Don M. Stichter, Tampa, Fl...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This is a Chapter 11 case and the matter under consideration is the extent and priority of several mortgages which admittedly encumbered the one and only asset of Sunny Beach Motel, Inc. (Debtor), a property which had already been sold by the Trustee. The matter is presented for this Court’s consideration by Raymond B. Ray, the Trustee for the estate of the D...
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ORDER ON MOTION TO DISMISS AND MOTION FOR SANCTIONS OR ALTERNATIVELY FOR REMAND THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion to Dismiss this Chapter 11 case pursu *804 ant to § 1112(b) of the Bankruptcy Code and Motion for Sanctions or Alternatively To Remand, filed by Community Federal Savings and Loan Association of Tampa (Community Fe...
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ORDER ON MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSES THIS IS a Chapter 11 case and the immediate matter under consideration is a Motion for Payment of Administrative Expenses (sic) filed by Joseph Murrman, the claimant in the above Code 11 case. Seas-pire, Inc. the Debtor in the above captioned case, filed its first Petition for Relief in this Court on April 29, 1985. In September, 1985, that ca...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Debtor’s Objection to the Claims of Toledo Trust Company. At the Hearing, Toledo Trust Company requested the opportunity to file written arguments as to the Court’s discretion to allow late filed claims in cases under Chapter 13. Toledo Trust filed a Brief outlining the case law on this subject. The Court has review...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Debtor’s Objection to the Motion for Relief from Stay by United Home Federal. At the Hearing the parties had the opportunity to argue their respective positions and present evidence they wished the Court to consider in reaching its decision. Also present was counsel for the fee simple owner and mortgagor of Si...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case and the matter under consideration involves the discharge-ability, vel non, of a debt in the amount of $16,951.65 claimed to be due and owing to the United States of America (Government) who instituted the above-captioned adversary proceeding. The Motion filed by the Debtors brings into question the discharge-ability, vel non, of thi...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT This is a Chapter 7 liquidation case and the matter under consideration is the dis-chargeability vel non of $1,112,603.10 allegedly owed by George Louise Carapella (Debtor) for unpaid income taxes to the U.S.A. (Government). The claim of dis-chargeability was presented by the Debtor who on January 21, 1987, initiated the above captioned adversary proceeding...
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OPINION A. INTRODUCTION One of the genuine tragedies of contemporary America is that many low-income citizens have insufficient financial resources to pay for utility services which have become veritable necessities of life. The instant adversary proceeding is brought by such a low-income citizen, and we are prepared to grant her certain relief against the Defendant utility. We ...
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ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE EXPENSE OF MULTIPLE CLAIMS FOR WAGES, SALARIES THIS IS the saga of a wayward oceangoing vessel, the Victoria U, which, unlike the legendary Flying Dutchman was not guided by Captain Vanderdecken but by Cairan Graham and unlike the Flying Dutchman was not circling the Cape of Good Hope but, on the contrary, sailed in a totally opposite direction fr...
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MEMORANDUM OPINION The plaintiff (hereinafter Total Television) filed a complaint against the debtor, Walter Lewsadder (who did business as Casey Distributing) alleging its claim of $8,168.04 1 arising from the issuance of eight checks drawn against insufficient funds to be nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) 2 . This is a core proceeding under 28 U...
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MEMORANDUM OPINION This matter comes before the court upon the trustee’s objection to the debtors’ claimed exemption in the cash surrender value of life insurance policies. The parties have stipulated to the following facts: Debtors filed their Chapter 7 petition on January 28, 1987 and claimed as exempt, under O.R.S. 743.099(3), the cash surrender value of a Prudential Life Insuranc...
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OPINION Augie/Restivo Baking Company, Ltd. (“Augie/Restivo”) and Augie’s Baking Company, Ltd. (“Augie’s”), as debtors and debtors-in-possession (collectively “debtors”), are moving to substantively consolidate their Chapter 11 cases. The cases have already been procedurally consolidated. The Augie/Restivo unsecured creditors committee and Manufacturers Hanover Trust Company (“Manufacturer...
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84 B.R. 947 (1988) In re NEW YORK CITY SHOES, INC., Debtor. RICHARD ROYCE COLLECTION LTD., Plaintiff, v. NEW YORK CITY SHOES, INC., Defendant. Bankruptcy No. 87-03426S, Adv. No. 87-0698S. United States Bankruptcy Court, E.D. Pennsylvania. April 6, 1988. *948 *949 Edward C. Toole, Jr., Mary F. Walrath, Philadelphia, Pa., for debtor. Rosetta Packer, Donald Harrison, Philadelphia, Pa., for Creditors...
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OPINION Before us is debtor’s MOTION TO AVOID LIEN IMPAIRING DEBTOR’S EXEMPTION. In that motion, debtor seeks to recover $3,750 from the National Bank of the Commonwealth (“Bank”). Since the debtor seeks to recover money, it would appear that the appropriate procedure required the initiation of an adversary proceeding by the filing of a complaint, rather than a motion. We will ignore that...
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MEMORANDUM OF DECISION I. The question presented here is whether a trustee in a converted chapter 7 case can attack as a fraudulent transfer a mortgage foreclosure that occurred, after the granting of a relief from stay, during the preceding chapter 11 case. This issue is raised by the defendant’s motion for summary judgment filed pursuant to Bankr.R. 7056. The following statement of material fac...
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MEMORANDUM OPINION AND ORDER The matter before the court is the “Motion to Dismiss, Motion to Cancel Notice of Lis Pendens” filed by the defendant, Pioneer Savings Bank, Inc. on November 24, 1987. A hearing was held on January 4, 1988, in Raleigh, North Carolina. 1 *417 JURISDICTION This court’s jurisdiction over this adversary proceeding was addressed in the Report and Recommendation (...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the objection to discharge under 11 U.S.C. § 727(a)(2) and (4) filed by the trustee. A trial of this matter was held January 27, 1988, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Defendant filed a petition for relief unde...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon the Trustee’s complaint seeking to avoid and recover a transfer of property of the estate. Both parties have filed motions for summary judgment and memoran-da of law in support of their positions. Upon the arguments so presented, the Court will enter summary final judgment in favor of plaintiff. I. Facts T...
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MEMORANDUM OPINION In this adversary proceeding, the plaintiffs, Nerco Coal Corp., f/k/a Nerco Coal Company, Nerco Coal Sales Company, Wes-mar Coal, Inc. and NDG, Inc., f/k/a Nerco-Hiller Coal Company, (“NERCO”) object to the discharge of the chapter 7 debtor, Peter Lu Hu Ball, under 11 U.S.C. §§ 727(a)(2), (3), (4) and (5), and request that a judgment against the debtor in the amount of ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO DISMISS Before the Court is the motion of three secured creditors, Meritor Savings Bank (“Meritor”), acting for itself and as agent for Colwell Financial Corporation (“Col-well”), Future Federal Savings Bank of Louisville, Kentucky (“Future Federal”), and The Life Insurance Company of Virginia (“Virginia Life”) (collectively, the “Secured Cre...
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FINDINGS OF FACT AND RULINGS OF LAW This is a complaint brought by the Debt- or against its landlords, Eugene J. Sweeney *305 (the “Defendant”) and Elaine I. Sweeney (collectively the “Defendants”), seeking an order returning the Debtor to possession of its business premises and granting the Debtor damages for the Defendants’ dispossession of the Debtor. Preliminary relief wa...
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ORDER DIRECTING REFUND OF FEE PAID TO DEBTOR’S ATTORNEY AND DISMISSING CASE WITH PREJUDICE This chapter 13 petition was filed January 28 by a debtor who acknowledges that he has no income from any source. Neither the debtor nor his attorney appeared at the creditors meeting held March 2, nor at the confirmation hearing held later the same day. The chapter 13 trustee was informed that the debtor co...
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ORDER DENYING REHEARING The debtors’ motion (CP 29) for reconsideration of the Order Denying Motion to *859Avoid Lien dated January 25 (CP 28) was heard February 23. The motion is denied. Movants’ concern with a 1986 judgment against them is that the judgment: “could have a detrimental effect on the Debtors’ ability to sell the homestead property.” This court’s authority and responsibility with re...
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MEMORANDUM DECISION The plaintiff/creditor seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A) or (a)(4) for its claim ($24,-980) against the debtor. The debtor has answered and the matter was tried on February 23. I agree that the claim should be excepted from this debtor’s discharge and that plaintiff is entitled to judgment against the debtor in the amount claimed. The Relevant Fact...
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ORDER CHANGING VENUE At Butte in said District this 6th day of April, 1988. On February 26, 1988, Sundance Corporation filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court, District of Montana. The Debtor’s only asset is a 2500 acre apple orchard presently valued at 12.9 million dollars located in Eastern Washington. On March 17, 19...
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ORDER In this Chapter 11 case, two motions of the Trustee for confirmation of the sale of assets of the Debtor were heard, after notice to all parties in interest, on March 31, 1988. During the course of this Chapter 11 case, the Debtor was removed from possession and a Trustee appointed. Thereafter, a secured creditor, Bank of Montana, filed a Disclosure Statement and Plan of Reorganizat...
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ORDER DENYING LATE FILED CLAIM The State of Florida, Department of Revenue, a priority creditor with an allowed claim in the amount of $184,396.96 has moved (CP 168) to “allow claim and enlarge time for filing proof of claim.” The motion was heard on January 19. This creditor’s original claim in the amount of $169,292.42, filed May 15, 1987, was timely. The timely-filed prepetition claim was amen...
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ORDER VALUING BARNETT’S SECURED CLAIM The chapter 11 debtor has moved (CP 66) under 11 U.S.C. § 506 and B.R. 3012 for a determination of the extent to which Barnett Bank’s claim is secured. The motion was heard March 8. I find that the judgment claim, which totalled $5,263,686 plus fees and costs when this petition was filed on December 7, 1987, is secured to the extent of $4,715,000. The balance ...
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MEMORANDUM AND ORDER After the plaintiff, Delta Service Company, Inc., had completed the presentation of *67its evidence the defendant, Palatine National Bank, moved under Bankruptcy Rule 7041 [Fed.R.Civ.P. 41(b)] for dismissal of the complaint on the ground that upon the facts and the law Delta Service had shown no right to relief. The court will grant the motion and dismiss the complaint. Delta ...
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ORDER ON TRUSTEE’S MOTION FOR TURNOVER The chapter 7 trustee has moved (CP 13, 14 and 15) for an order requiring the debt- or to turn over (1) refund of pre-paid insurance premiums from a disability insurance policy which was in effect at the time of filing this chapter 7 bankruptcy petition and (2) severance pay from teams in the National Football League. The debtor disputes that the requested...
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MEMORANDUM OPINION A.Procedural Background On January 20 and 21, 1988, this Court conducted an evidentiary hearing on the above contested matters and the chapter 7 trustee’s Motion for Proposed Distribution of Assets from the estate of the debtor, Bass Mechanical Contractors, Inc. (Bass Mechanical). The contested matters and motion were consolidated for trial by agreement of all ...
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ORDER DENYING CONFIRMATION OF CHAPTER 11 PLAN THIS MATTER was heard on March 3, 1988, on confirmation of the debtors’ John and Geneva P. Wester’s modified Second Amended Plan of Reorganization. Merchants & Southern Bank of Alachua County, (hereinafter referred to as M & S) the major secured creditor has rejected the plan and has filed its objection to confirmation. The debtors-in-possessi...
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ORDER GRANTING MOTION TO TRANSFER VENUE THIS MATTER first came on for consideration sua sponte, it appearing from the debtor’s petition, schedules, and statement of affairs that venue was not proper in this district. The Court entered an order on March 4, 1988, for the debtor to show cause why this case should not be dismissed or transferred to the Middle District of Florida and giving credit...
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ORDER DENYING REHEARING AND CLARIFICATION OF TIME TO APPEAL By an Order on Dischargeability of Debt entered January 7, concluding this adversary proceeding, I held that a debt in the amount of $4,500 owed by this debtor to his ex-wife’s attorney for services rendered by the attorney to the debtor’s ex-wife is excepted from discharge under the provisions of 11 U.S.C. § 523(a)(5). (CP 7). The d...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the complaint of the creditors, Federal Insurance Company (Federal) and Great Northern Insurance Company (Great Northern) against the debtor, Malcolm A. Feldman, to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4), and the Court having heard the testimony, examined the evidence presente...
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ORDER GRANTING STAY RELIEF The motion (CP 8) of the debtor’s mortgagees for stay relief was heard February 4. For the reasons stated below, the motion is granted retroactively to January 5. Before bankruptcy, movants obtained a foreclosure judgment, the property was sold by the clerk, and a Certificate of Sale was issued December 7, 1987. The *632debtor then filed an objection to the sale. Several...
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MEMORANDUM DECISION The plaintiff creditor seeks exception from discharge for its $51,734 claim under 11 U.S.C. § 523(a)(2)(A). 1 The debtor, who has no attorney, has answered. The matter was tried February 9. I now conclude that plaintiff has failed to prove its allegations. The facts are not in dispute. Plaintiff has relied solely on documents and the debtor’s testimony. When the debtor...
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MEMORANDUM OPINION Before the Court are the objections to exemptions filed by the Federal Savings and Loan Insurance Corporation (FSLIC) in the above cases. FSLIC has objected to the claims of exemption of certain assets by the separate debtors, Marcia Nell Holt and Marvin Joe Holt. Because the objections involve a determination of similar issues, the Court has consolidated the cases for ...
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MEMORANDUM DECISION In its first count, the plaintiff bank seeks exception under 11 U.S.C. § 523(a)(2)(B) from the discharges of both debtors of its $149,251 claim (plus interest and fees). The debtors have answered and the matter was tried on February 18. For the reasons discussed below, I find that plaintiff has failed to prove its allegations. *857 Count 2 In its second count, plai...
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OPINION The threshold issue before me for determination is whether the defendant, as attorney for a creditor of the plaintiff, violated the automatic stay and/or an order of this court. If the answer to that question is yes, I must determine the appropriate measure of damages. Pursuant to Bankr. Rule 7052,1 make the following findings of fact and conclusions of law: FINDINGS OF FACT ...
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MEMORANDUM OPINION The question presented is whether certain payments made by the debtor to the *460 defendant are protected by Section 547(c)(2) of the Bankruptcy Code. On October 1, 1979, Redway Cartage Company (Redway) leased commercial real estate from Walter and Stanley Kubicki for a term of six years for the sum of $657,000 payable in monthly installments of $9,125...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court for trial upon the Objection To Proof Of Claim filed by the debtor Zodiac Enterprises, Inc. (the “debtor”) objecting to the proof of claim filed in this chapter 11 proceeding by Farouk Kamareddine (“Kamar-eddine”). The adversary proceeding instituted by the debtor included a counterclaim against Kamareddine. By Order dated...
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MEMORANDUM AND DECISION The Debtors’ Motion seeks amendment of their Chapter 13 petition to add an unsecured creditor. The issue is whether the amendment is so prejudicial as to warrant denial. The facts are as follows. The Debtors filed jointly for Chapter 7 relief on February 28, 1985. On May 8, 1985, the Chapter 7 Trustee filed a “Report of No Assets” in the case, and on June 26, *328 19...
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ORDER GRANTING OBJECTION TO EXEMPTION AND AUTHORIZING SALE OF PROPERTY THIS CASE came on for hearing on an objection filed by Golf International (Golf), a creditor and party in interest, to the debtor’s exemption of his interest in a limited partnership, Casa Development Ltd., Ill, a Florida Limited Partnership. Resolution of the exemption question will also determine the outcome of the debtor’...
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MEMORANDUM OPINION This matter comes before the Court on the Trustee’s objection to a claim for $44,-361.47 filed by Independent Bank (“Independent”) against the bankruptcy estate of H. Huntly Hersch (“Hersch”), the debtor in these proceedings. Hersch filed his voluntary petition in this Court under Chapter 7 of the Bankruptcy Code (11 U.S.C. § 101 et seq.) on July 31, 1984, and received his ...
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OPINION A. INTRODUCTION On September 14, 1987, Nassau Savings and Loan Association (hereinafter referred to as “Nassau”) filed an omnibus motion seeking, inter alia, relief from the automatic stay. Thereafter, on October 13, 1987, we entered a Consent Order embodying the substance of a telephone conference agreement between interested counsel that a hearing on the motion w...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW PERTAINING TO ORDER AUTHORIZING AND AWARDING PAYMENT OF COMPENSATION TO PROFESSIONALS THIS CAUSE having come before the Court for hearing on the applications for compensation of Jeffrey H. Beck, General Counsel for the Debtor (hereinafter referred to as “General Counsel”); Harvey Kopelowitz, Special Counsel for the Debtor (hereinafter referred to as...
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MEMORANDUM OF DECISION These cases are before the court for ruling on the trustees’ challenges to various creditors’ claims to Payment in Kind (PIK) Certificates in the trustees’ possession. The facts are stipulated and are summarized below. The parties have exhaustively briefed the issues and the matters are ready for ruling. This is strictly a legal issue, as the trustees’ challenge the...
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ORDER Before the court is the motion of Health-corp., Inc. (“movant”) for relief from the automatic stay and to require segregation and accounting. FINDINGS OF FACT On November 29, 1983, the debtor, Southeastern Emergency Healthcare, P.C., executed a purchase money note payable to movant in the principal amount of $205,-000.00. The parties entered into a security agreement on September 30, ...
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MEMORANDUM AND OPINION This matter comes to be heard on the debtors’ objection to a portion of the ar *520 rears claim filed by Commonwealth Mortgage Company (“Commonwealth”) in the debtors’ Chapter 13 case. Commonwealth’s claim includes interest on arrear-ages. The debtors contend that the agreement between the parties does not provide for interest on arrearages and that req...
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MEMORANDUM DECISION I. INTRODUCTION Plaintiff Stephen C. Becker, Trustee in Bankruptcy, has moved for summary judgment and other relief against defendant County of Sacramento (the “County”). The relevant facts are not in dispute. On January 17, 1984, Lori E. Hackney, the above debtor, was convicted in the Municipal Court of California, County of Sacramento, of welfare fraud in violation of Se...
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ORDER GRANTING DEFENDANT’S MOTION TO COMPEL ANSWERS TO DEFENDANT’S CERTIFIED DEPOSITION QUESTIONS By letter, defendant Empire Bank requested a hearing on debtor’s assertion of the attorney-client privilege to questions asked at the deposition of William Pitt, debtor’s president. Defendant certified the questions for ruling on the alleged privilege. At a discovery conference on February 18...
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MEMORANDUM DECISION This case is before the Court on Milton Trask’s request for subrogation to the rights of the Estate of Bessie McDonald (“McDonald Estate”) in a certain contract for deed, to the extent of payments made by Milton Trask to the McDonald Estate and to the county taxing authority. Bessie McDonald was the vendor of the contract for deed, to which the debtor, Trasks’ Char-olá...
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MEMORANDUM OPINION This adversary proceeding comes before the Court upon the Motion of the defendant United States for Summary Judgment on the complaint filed by the debtor, Bruce C. Anderson, a corporal in the United States Marine Corps stationed at Quantico, Virginia. Anderson alleges that the Marine Corps wrongfully discriminated against him as a consequence of his filing a petition in...
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DECISION AND ORDER Before the court is an adversary proceeding seeking specific performance of an alleged contract for the sale of certain real property owned by the defendant-debtor. For the reasons stated below this court holds: (1) the writing does not satisfy the necessary requisites for an enforceable contract under New York State Law; and (2) the alleged sale falls outside the ordin...
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MEMORANDUM OPINION Presently before me in this matter is a motion by Union National Bank (UNB) and Univest Mortgage Company (Univest) to deem a settlement agreement binding against Elaine M. Paolino. A hearing on the motion was held October 19, and November 16, 1987. As set forth below in findings of fact and conclusions of law, the instant motion will be granted. Preliminarily, howe...
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MEMORANDUM-DECISION AND ORDER The Court has before it for consideration the First Application for Interim Compensation of Sheehan, Phinney, Bass & Green, Prof. Ass’n. (“Sheehan”), together with an Application for Authority to Set Off Against Retainer (“First Application”). *231 The Court has jurisdiction of this core proceeding pursuant to 28 U.S.C.A. §§ 1334 and 157. C...
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OPINION AND ORDER THIS MATTER comes before the Court on a Motion for Attorney’s Fees. The fees are requested by the attorney of a proposed debtor under an Involuntary Petition in Bankruptcy. Exchange Network Corporation (“Exchange Network” or “proposed debtor”) was the proposed debtor of an Involuntary Petition in bankruptcy filed by three parties, each party ostensibly a creditor of Exch...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the objection of Electronic Theatre Restaurants, Inc. (Debtor) to a claim filed by the City of Houston, Texas (City of Houston). An evidentiary hearing was held with notice thereof having been served upon all parties entitled thereto. Upon argument of counsel, adduced evidence, and a review of the relevant portions of the reco...
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MEMORANDUM OPINION Because there have been a substantial number of controversies arising over the question of lien avoidance, particularly in the Central Division of this District, this opinion will attempt to provide a step by step outline of the interplay between 11 U.S.C. § 522(f) and Mo.R.S. 513.430, et seq., which the Court hopes will be of benefit to counsel in this District, and particul...
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*583 ORDER GRANTING IN PART AND DENYING IN PART TRUSTEE’S OBJECTION TO CLAIMED EXEMPTIONS On October 9, 1987, Jack Alvin Shields, Sr. (“Debtor”) filed his petition for relief under 11 U.S.C. Chapter 7 with attachments and schedules including Schedule B-4 listing property claimed as exempt pursuant to 11 U.S.C. § 522(l). On December 3, 1987, Patrick J. Malloy, III, Trustee of Debt...
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ORDER In this Chapter 12 case, after an initial hearing on the Debtors’ First Plan, *708 the Court on November 5, 1987, denied confirmation after fixing valuation of the assets, market rate of interest and term of repayment of secured creditors, In re, Foster, 79 B.R. 488, 5 Mont.B.R. 108 (Bankr.Mont.1987). The Debtors on November 16, 1987, filed an Amended Plan to...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court for trial. The parties have stipulated to the facts. On October 3, 1986, Defendants obtained a judgment against the Debtors, Gary and Jacquelinea Castleton. On the basis of that judgment, Defendants caused a writ of garnishment to be issued to Debtor’s employer on March 13, 1987, pursuant to § 13-54.5-101, et seq., C.R.S. The writ was...
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MEMORANDUM DECISION DENYING REQUEST FOR APPOINTMENT OF GENERAL PARTNERS’ COMMITTEE On March 24, 1988, this court signed an order to show cause fixing a hearing on the motion of certain partners (the “Carey Group”) 1 of the Debtor seeking the appointment of an equity security holders’ committee pursuant to Bankruptcy Code § 1102(a) to be composed of the general partners of the D...
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At issue are the propriety and reasonableness of the fees charged by the attorneys and accountants for the trustee relating to the administration of the Chapter 7 debtor’s estate. Kathryn Crake, fifty percent general partner in the debtor, objects to these fees, alleging that (1) the trustee's investigation of the unsecured claim of Earl V. Hafer (“the Hafer claim”) was unnecessary, excessive, ...
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*493 MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the Trustee’s objection to a claim filed against the Debtor’s estate by the Internal Revenue Service (IRS). Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings: I. This is a core proceeding under provisions of 28 U.S.C. 157(b)(2)(B), with jurisdiction further conferred ...
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MEMORANDUM AND ORDER THIS MATTER comes before the Court on Motion for Rehearing by Creditor-Plaintiff (Fil. # 7, January 26, 1988), and Order of this Court (Fil. # 24, in BK87-666) dated January 15, 1988, which sustained Debtor-Defendant’s Motion to Dismiss (Fil. #4, November 12, 1987). FACTS The issue presented involves whether the filing of a complaint without paying the filing fee is eff...
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MEMORANDUM OPINION Sitting by Designation. This matter comes before the Court on cross motions for summary judgment filed by the plaintiff Disbursing Agent for the AOV Industries Fund and the defendant Rockwood Insurance Company (“Rock-wood”). The Disbursing Agent was appointed pursuant to the debtors’ Amended Plan of Reorganization. For several years before A & T Associates, In...
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MEMORANDUM ORDER This matter came on for hearing on February 1, 1988, on the application of Chaska Investment Limited Partnership, pursuant to 11 U.S.C. § 503(b)(1)(A), to determine whether certain rent claimed to be due from the debtors is an administrative expense. Arthur C. Benson appeared for movant and P. Joseph O’Neill appeared for the debtors. This court has jurisdiction pursuant t...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on the motion of Larry McDaniel (“Debtor”) for a default judgment against the defendant, “Nationwide”. The underlying adversary proceeding involves the Debtor’s complaint to avoid a preferential transfer pursuant to *70 § 547(b) of the Bankruptcy Code. (11 U.S. C. § 101 et seq.) 1 The motion ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT These adversary proceedings came on for trial before the undersigned on February 29, 1988. James Wahlfors appeared for the plaintiffs, Franklin State Bank (“Franklin Bank” or “the bank”) and Victor S. Sather (“Sather”), and Joseph Wentzel appeared for the defendant, Gerald Lippert (“Lippert”). Plaintiffs seek to have the court de...
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ORDER This matter came on for trial on motion of First Federal Savings & Loan Association of Warner Robins (“First Federal”) for relief from the automatic stay. The case relates to the sole asset of the debtor, a commercial office building located at 92 Luckie Street, N.W., Atlanta, Fulton County, Georgia 30303, known generally as the Standard Building. First Federal is the holder of the ...
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MEMORANDUM OPINION AND ORDER DENYING MOTION TO LIFT AUTOMATIC STAY AND TO SETOFF The United States, on behalf of the United States Department of Agriculture *402 (“USDA”), brings this motion under 11 U.S.C. § 362(d) to lift the automatic stay set forth in § 362(a)(7). The United States asks this court to permit Farmers Home Administration (“FmHA”), an agency of USDA, to setof...
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ORDER ON OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS CAUSE came on before the Court upon the debtors’, Dade Helicopter Jet Service, Inc. (Dade Helicopter), Tropical Helicopter Airways, Inc. (Tropical) and Brickell Investment Corporation (Brickell), Objection to Claim of the Internal Revenue Service (E.R.S.) pursuant to Bankruptcy Rule 3007, and the Court, having heard the testimon...
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ORDER ON MOTION FOR RETURN OF POST PETITION PAYMENTS The matter under consideration in the above-captioned Chapter 7 case is a motion filed by Bernard Gorski, Jr. and Leann J. Gorski, d/b/a European Connections (Debtors) seeking return of $1,350.00, representing post-petition payments made pursuant to a Chapter 13 pre-confirmation order. Prior to confirmation of the Plan, the Debtors converted ...
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OPINION This is af complaint to have a debt represented by a state court judgment declared nondischargeable under 11 U.S.C. § 523(a)(2)(A) as a “debt for money ... obtained by ... false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s ... financial condition.” We grant plaintiff’s motion for summary judgment. Under the doctrine of collater...
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ORDER Plaintiffs/Debtors commenced this adversary proceeding on August 28, 1987, requesting a determination that Defendant State of Minnesota’s (State) tax lien against Debtors’ property did not attach to Debtors’ exempt homestead, or alternatively, that the State’s lien against the homestead is invalid. Both parties moved for summary judgment and argued their motions on March 21, 1988. Howard Mai...
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*368 MEMORANDUM OPINION AND ORDER The matter before the Court is a motion filed by the United States for reconsideration of an Order entered on October 5,1987 or, in the alternative, to extend time for filing a notice of appeal if the October 5, 1987 Order was a final, appealable Order. The Order found that the Internal Revenue Service was in technical violation of the discharge provisions of...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on debtors’ Petition for Rule to Show Cause against Old Willow Falls Condominium Association (“Association”) for an alleged violation of the discharge granted on December 8, 1983. The debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code on September 27, 1983. At the time they owned a condominium unit. The Cond...
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MEMORANDUM OF DECISION Presented to the court are various motions for summary judgment in these three adversary proceedings. Pursuant to 11 U.S.C. § 547, the Unimet Assets Disposition Trust, through its Trustee, seeks to recover several payments made to the defendants by Unimet Corporation (Unimet) or its subsidiary Esmet, Inc. (Esmet). The defendants do not deny the applicability of Subs...
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MEMORANDUM OPINION Before the Court are the Objection to Plan of debtors, Dwight Murry Ferguson and Mary Aliene Ferguson, and the Objection to Amended Plan of debtors filed by Jim Walter Homes, Inc. (Jim Walter). In their original plan, the debtors proposed to treat Jim Walter as a secured creditor, but did not propose to cure arrearages, pay attorney’s fees or pay insurance expenses expe...
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This case came on for hearing on Nor-west Bank Grand Rapids’ motion for relief from stay under 11 U.S.C. § 362(d). Raymond C. Lallier appeared for the bank and Joseph G. Beaton, Jr. appeared for the debtors. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding under 28 U.S.C. § 157(b)(2)(G). Based on the evidence, memoranda of couns...
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MEMORANDUM OF DECISION AND ORDER ON MOTION FOR INTERIM FEES UNDER CODE § 506(b) These companion cases present the novel question of whether interim compensation is allowable under Code § 506(b). For the reasons that follow, I conclude that it is not. I On April 2, 1987, National Computer Communications Corporation and its affiliate, Digital Associates Corporation, (collectively ...
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DECISION AND ORDER GRANTING SUMMARY JUDGMENT OF PLAINTIFF ON LIABILITY AND DENYING SUMMARY JUDGMENT OF DEFENDANT This matter is before the Court upon cross Motions for Summary Judgment by plaintiff and defendant with accompaning memoranda and exhibits, affidavits and attachments. This matter arises under 28 U.S.C. § 1334(b) and the general order of reference entered in this district. The matter...
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*43 MEMORANDUM OF DECISION Presently before the court is a complaint filed by Douglas L. Thrush, Trustee, objecting to the discharge of Richard A. Er-chenbrecher and Theresa Rose Erchen-brecher (Debtors). Debtors filed an answer denying the essential allegations of the complaint. A pre-trial conference was held whereat the parties agreed that the issue in dispute would be submitt...
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This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered by this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F) — proceedings to determine, avoid, or recover preferences. Matter of Commercial Heat Treating Of Dayton, Inc., 80 B.R. 880, 888 (Bankr.S.D.Ohio ...
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ORDER This matter is before the Court on the Trustee’s Motion for Reconsideration of Or *175 der Granting Application to Employ Attorneys. Hearing on the Trustee’s motion was held December 16, 1987. Briefs have been filed by Debtor and U.S. Trustee. STATEMENT OF FACTS This Chapter 11 case commenced August 28, 1987. On September 8, 1987, Debtor filed its Application ...
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MEMORANDUM AND DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT DISMISSING COMPLAINT A complaint was filed with this court on November 13, 1986 by the law firms of Brewer & Soeiro and Horowitz & Jacobs on behalf of plaintiff Charles Hooten individually and allegedly on behalf of a class of holders of W.T. Grant Company 4%% Subordinated Debentures (“Subordinated Debenture Holders”) who tendered...
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FINDINGS OF FACT AND RULINGS OF LAW T.H.B. Corporation (the “Debtor”) moves that the Court enter a final order authorizing the use of cash collateral consisting of the proceeds of accounts receivable, pursuant to 11 U.S.C. § 363(c)(2) and Bankr.R. 4001(b)(2). The Court on January 28, 1988 authorized the use of cash collateral on an interim basis and granted post-petition liens in the acco...
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*652 MEMORANDUM OPINION AND ORDER This case presents the question of whether an oversecured creditor can enforce provisions for attorney’s fees in a note and deed to secure debt as allowed under Georgia law in a Chapter 11 case when the Chapter 11 debtor proposes a plan to cure and reinstate the debt pursuant to 11 U.S.C. § 1124(2) and when the debtor in fact cures all arrear...
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DECISION AND ORDER DISMISSING ADVERSARY PROCEEDINGS FOR LACK OF JURISDICTION This matter is before the court upon a remand from district court to review the captioned cause and to make a determination of this court’s subject matter jurisdiction in view of post-Northern Pipeline jurisprudence and statutory enactments. I. PROCEDURAL HISTORY GWF Investment, Ltd. (“Debtor...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on motion of the Atchison, Topeka and Santa Fe Railway Company (“ATSF”) for an extension of time in which to file objections to discharge and complaints as to discharge-ability of debts. The facts are not in dispute: On January 7, 1987, Avery Eliscu filed his petition for relief under Chapter 7 of the Bankruptcy Code (11 U....
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OPINION A. INTRODUCTION The instant adversarial proceeding presents, on its surface, a rather commonplace sort of matter: a Chapter 13 debtor challenging the Proof of Claim of his mortgage company on the grounds that (1) The Mortgagee sought to impose unwarranted attorney’s fees and costs arising out of a pre-petition foreclosure suit; and (2) The *944 Mortgagee is subje...
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MEMORANDUM OPINION FINDINGS OF FACT This matter comes before the Court on the application of Ruth A. Gibson (“Gibson”) for compensation in the amount of $1,623.50 in attorney fees and $165.58 in expenses to be paid as an administrative expense of the Chapter 7 bankruptcy of Contract Marine Carriers, Inc. The applicant was employed by a creditor of the estate, Sharon C. Early (“Early”), who alleged...
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MEMORANDUM OPINION On the motion of Second National Bank and Douglas C. Carter, plaintiffs in a related adversary proceeding numbered 86-0454-R, and the Trustee, Charles R. Jaeger (“Trustee”), plaintiff in a related adversary proceeding numbered 87-0106-R, and the defendant in both such proceedings not objecting, it was Ordered that the two adversary proceedings be consolidated into one p...
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MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTIONS FOR AMENDMENT OF THE PLEADINGS AND SANCTIONS Plaintiff moves to Amend Pleadings to conform to proofs and also to file an Amendment to Complaint pursuant to Bankruptcy Rule 7015(b) and F.R.Civ.P. 15(b). Also, Plaintiff seeks Sanctions against Defendant and its counsel in accordance with Bankruptcy Rule 9011 and F.R.Civ.P. 11. Defendant ha...
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MEMORANDUM OPINION AND ORDER This chapter 13 case is before the court on a motion for modification of the automatic stay. The movant, Federal National Mortgage Association (“FNMA”), holds a first mortgage on the debtor’s residence, and, having initiated foreclosure proceedings in an Illinois state court before this bankruptcy case was filed, now seeks to conclude the foreclosure. The debt...
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OPINION The matters presently before us in the above-entitled case require us to consider, on one level, whether the debtor-tenant’s commercial lease has- been terminated; and, on the another level, what effect a determination on that issue in a state court landlord-tenant proceeding should have upon the result that we reach. While we conclude that the Debtor’s position appears to have su...
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MEMORANDUM OPINION INTRODUCTION This matter comes before the Court upon the Motion of Robert L. Neier and his wife, Susan A. Neier (hereinafter the “Neiers”) For Relief From The Stay Provisions of the Bankruptcy Code Or, In The Alternative, For Adequate Protection (hereinafter the “Motion”). The Neiers’ Motion was filed March 24, 1988, and the case was tried April 11, 1988. FACTS On January 30, 1...
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DECISION ON MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSES On a motion by Yardarm Beach Condominium (“Condominium”) for payment of administrative expenses, the Condominium seeks payment from the trustee for common charges allegedly incurred by the *20 debtor, Stephen A. Mishkin, pursuant to his obligations stated in the by-laws and Declaration of Condominium, and attorney fees...
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Hamilton Bank of Upper East Tennessee (Bank), a secured creditor, seeks relief from the automatic stay of § 362(a)(5) of title 11 in order to obtain possession of a 1983 Toyota Tercel automobile owned by one of the debtors, Sharron Byrd Whitaker. 1 The Bank also seeks an allowance of attorney’s fees. Debtors, having continued to make voluntary payments to the Bank subsequent to the f...
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MEMORANDUM OPINION The matter before the Court is an objection to exemption filed on behalf of George Gallagher, d/b/a George Gallagher Plumbing (hereinafter Gallagher). Gallagher challenges a $14,000.00 exemption claimed by Debtors Gary A. and Mary L. Gorski in their residence. The basis for the objection is that only Mrs. Gorski holds record title and therefore the maximum exemption whi...
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OPINION The debtor, T. Kevin Dougherty (“Dougherty”), appeals an order denying him a discharge for amounts owed to a credit card issuer. For the reasons set forth below, we VACATE and REMAND. FACTS In March 1985, Citibank, N.A. (“Citibank”), sent material to Dougherty inviting him to apply for a Citibank Visa card. Dougherty completed the “Pre-Approved Acceptance Certificate” an...
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ORDER This cause came on before the Court for consideration upon the Motion of JOHN H. LANGDON and MARJORIE LANGDON, creditors and parties in interest, seeking relief from the automatic stay provisions of 11 U.S.C. See. 362. After reviewing the Motion and hearing the representations and argument of counsel, the Court finds: 1. On November 13, 1982, the Debtor entered into an agreement to sell the...
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MEMORANDUM OPINION This cause is before the Court upon the Motion of THORP DISCOUNT, INC., nka ITT FINANCIAL SERVICES (“ITT”), a secured creditor of the Debtors in this cause. ITT has moved the Court for an Order reopening this Chapter 13 proceeding and for other relief. Debtors’ counsel was given until July 31, 1987, to file a Brief in response to the Motion, but to the date of this Orde...
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MEMORANDUM OPINION This matter came before the Court on the motion of Western Bank of Albuquerque (“Bank”) to lift the automatic stay as to certain property of the debtors and on the Bank’s objection to debtors’ amended claim of exemption. Since the same property was at issue, these matters were combined for final hearing. The questions before the Court are two: (1) whether debtors’ exemp...
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ORDER These cases were instituted by the filing of Petitions for Relief under Chapter 11 of Title 11, United States Code, on November 3, 1987. On February 4, 1988, a Motion was filed on behalf of a party in interest and a member of THE CREDITORS COMMITTEE seeking a change of venue of these proceedings to The United States Bankruptcy Court for the Southern District of California, at San Diego. A...
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MEMORANDUM OPINION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, The Chase Manhattan Bank (USA), N.A. (“Bank”) has sued Debtors/Defendants Dale Foster Williams (“Dale”) and his wife Karen Kaye Williams (“Karen”) to bar their discharge of two alleged debts — $1,568.38 in Count I and $6,928.90 in Count II — under 11 U.S.C. § 523(a)(2)(A). The gist of the Complaint is that both ...
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MEMORANDUM AND DECISION A creditor, Belle Epstein, has moved the Court for an Order directing the Chapter 13 Trustee to disburse surplus funds in his possession. This case was commenced on October 29, 1982, by the filing of a Chapter 13 petition and Plan. The filing was aimed, principally, at staving off foreclosure of a mortgage against the Debtor’s residence. By Order of February 2, 1983, t...
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MEMORANDUM OPINION This is an action seeking the Court’s determination that an obligation of Debtor is not dischargeable pursuant to 11 U.S.C. Sec. 523(a)(2)(B). This is a core proceeding pursuant to 28 U.S.C. Sec. 157(b)(2)(I). On June 6, 1985, the Debtor applied for a Four Thousand & 00/100-rDollar ($4,000.00) loan with CREDITHRIFT OF AMERICA (“CTA”) in order to consolidate payment...
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MEMORANDUM OPINION AND ORDER This matter came before the Court on the Motion of the Chapter 13 Trustee to Dismiss the above-captioned Chapter 13 case. Attorney Mary Gorman represents the Trustee. Attorney Robert Wilson represents the Debtor. *73 The Debtor filed a Chapter 13 case, No. 87 B 31499, on October 14, 1987. A creditor, Regency Savings and Loan Association, filed a Motion for Relie...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of USA Financial Services, Inc. (USA), to Modify the Automatic Stay. The Debtor is represented by Attorney William L. Balsley. USA is represented by Attorney Paul S. Godlewski. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rule...
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MEMORANDUM OPINION THIS CAUSE came on for hearing on April 14, 1988, on this Court’s Order to Show Cause entered on March 2, 1988, and on the Motion to Vacate Order to Show Cause filed by the respondents on March 30, 1988. The Order to Show Cause was entered directing respondents, Robert De-Voe and his attorney Pamela A. Schneider to appear and show cause why they should not be held in contempt...
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MEMORANDUM DECISION AND ORDER The debtor, S.E.T. Income Properties, III (“SET”) has filed a disclosure statement and a plan of reorganization pursuant to the requirements of the Bankruptcy Code. The sufficiency of said disclosure statement comes on for hearing upon the debt- or’s application for approval and upon objection thereto by Guardian Life Insurance Company (“Guardian”). Guardian,...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on to be heard upon the objection of the creditor Deer-wood Club, Incorporated, (Deerwood), to the debtor’s application/notice pursuant to 11 U.S.C. § 363(b) of auction sale of real property of the estate. This application and objection have proceeded as a contested matter herein with discovery having been taken, and this Court does not find it necess...
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MEMORANDUM INTRODUCTION Two matters are before the Court: the motion of Micro Education Corporation of America (“MECA”) for summary judgment with respect to its ordinary course of business defense to First Software’s preference complaint and First Software’s cross motion for partial summary judgment with respect to the five elements that it must establish to entitle it to recover pre...
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DECISION ON PROFESSIONALS’ FEE APPLICATIONS AND MOTION BY ANGELO RAINALDI AND HENRY F. RAAB OPPOSING APPLICATIONS AND SEEKING RETURN OF INTERIM COMPENSATION Pursuant to two orders of this court, dated February 2, 1987 and June 30, 1987, the law firms of Sitomer & Odessor, P.C. (“Sitomer”) and Marc Stuart Goldberg, P.C. (“Goldberg”) and accountants, Seidman and Seidman were retained, respectively,...
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MEMORANDUM OPINION Mary Lou Wilson, estranged wife of the debtor George Wilson, has filed a motion for relief from the automatic stay or, in the alternative, for discretionary abstention. The debtor vigorously opposes these requests as does the standing chapter 13 trustee. 1 Resolution of this contested matter requires a determination whether, if ever, a bankruptcy court should...
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OPINION In these two appeals, the debtor and an unsecured creditor each appeal from a separate order. Both orders, however, arise out of the same dispute. The unsecured creditor, Sunwest Bank, appeals from an order imposing sanctions upon it. The debtor appeals from an order prohibiting him from withdrawing any monies from a fund subject to a contested claim of exemption. We affirm both rulin...
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OPINION FACTS The debtors, collectively referred to as the Stolrow corporations, are Stolrow’s, Inc., Sandra L. Stolrow, Inc., and The Original Women’s Large & Half-Size Factory Outlet, Inc., (“Original”). The Stolrow corporations specialized in retail sales of women’s clothing and were founded by Walter and Margaret Stolrow and appellant Sandra Stolrow. Walter and Margaret are marri...
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OPINION The plaintiff below, State Farm Fire and Casualty Company (“State Farm”), appeals an order dismissing with prejudice its complaint objecting to the discharge of the debtor, Devon Jenkin (“Jenkin”). We reverse. FACTS On February 17, 1986, Jenkin’s condominium and several adjoining units were gutted by fire. State Farm provided insurance to one of Jenkin’s neighbors whose ...
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MEMORANDUM AND ORDER Re: Avoidance of Liens The matter before the Court is Marian Hansen’s (Debtor) Motion to Avoid the Farmers Home Administration’s (FmHA) Liens on certain property claimed exempt pursuant to Iowa Code § 627.6(12) (1987). The Court, having reviewed the evidence and arguments of counsel, now makes the following Findings of Fact, Conclusions of Law, and Orders pursuant to ...
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MEMORANDUM OPINION This case is before the Court upon California Federal Savings & Loan Association’s (“Cal Fed”) Motion for Sequestration of Rents and Profits and Motion to Prohibit Use of Cash Collateral. A hearing on the motions was held January 21, 1988, and upon the evidence presented, the court finds in favor of Movant. FACTS The debtor owns a retail shopping center on whi...
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MEMORANDUM OPINION The debtors, Benesteen Barron and Nancy Barron, commenced this bankruptcy case by filing a joint voluntary petition under title 11, chapter 7, United States Code, on June 25, 1986, and the case remains pending under said chapter. The above-styled adversary proceeding was commenced by the plaintiff, Combustion Federal Credit Union, by filing a complaint on September...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon a complaint by Karen K. Davis (the “creditor”) against Diane Ducharme (the “debtor”) to determine the discharge-ability of a state court judgment pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the wit...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon American Pioneer Savings Bank’s (“American Pioneer”) Motion to Dismiss and Motion to Prohibit Use of Cash Collateral and/or to Sequester Rents, Profits and Proceeds. 1 A hearing on the motions was held March 1, 1988, at the conclusion of which the Court instructed the parties to submit written briefs and proposed findi...
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OPINION AND ORDER The debtor, James Edwin Lyle, filed his Chapter 7 bankruptcy petition under Title 11 of the United States Code on October 30, 1986. The Internal Revenue Service (IRS) filed a Proof of Claim in the amount of $94,574.75 in the Lyle bankruptcy case. This Adversary Proceeding arose on the Complaint of the debtor to determine the dischargeability of his alleged indebtedness to th...
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MEMORANDUM The debtor seeks confirmation of its “Amended Plan Of Reorganization” (Plan) filed August 6, 1987. Union Planters National Bank (Union Planters), holder of the first mortgage indebtedness encumbering the debtor’s real property in Gatlinburg, Tennessee, filed “Objections To Confirmation” on September 25,1987. A hearing on confirmation was held October 1, 1987. 1 Thi...
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DECISION ON MOTION FOR PRELIMINARY INJUNCTION New York Life Insurance Company (“NYL”) has commenced an adversary ac *935 tion against The Chase Manhattan Bank, N.A. (“Chase”) and the debtors, Texaco Inc., and Texaco Capital Inc. for reimbursement of its attorneys’ fees, costs and expenses in having assisted in preserving the rights of a class of noteholders. By this adversary...
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DECISION These cases, consolidated for administrative and procedural purposes, had been assigned to former Bankruptcy Judge C. Albert Párente. Upon expiration of his term of office they were re-assigned to the undersigned. At the time of their re-assignment there was pending a proceeding brought on by the court, sua sponte, to inquire into the status of one Eliezer Miller ...
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FINDINGS OF FACT, ISSUES OF LAW AND CONCLUSIONS OF LAW ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT This matter is before the Court following trial of a compláint filed by Greenwood Trust Company (“Greenwood”). The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this district. *758 This is a core...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Trustee’s Objection to the Debtor's Claim of Exempt Property. A hearing on the objection was held March 16, 1988, at the conclusion of which the Court directed the parties to submit written briefs and proposed findings of fact and conclusions of law. Upon the argument and evidence so presented, the Court makes ...
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*161 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court on the debtor’s motion for 11 U.S.C. § 1129(b) treatment relative to Mutual Benefit Life Insurance Company ("Mutual Benefit”), the only creditor in Class 1. A hearing on the motion was held on February 9, 1988, at the conclusion of which the court directed the parties to submit written memoran-da in suppor...
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MEMORANDUM OPINION AND ORDER I Statement of Proceedings This case came before the Court on a Modification of Debtor’s First Amended Plan filed by the Debtor on January 21, 1988. The Court previously entered Orders on January 5,1988, denying the Debtor’s First Amended Plan filed October 27, 1987, and on October 19, 1987, denying confirmation of the Debtor’s original plan...
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MEMORANDUM OPINION The mystery in this case is, “where is Mrs. Spain’s right of survivorship?” and if she has lost it, “how did she do it”? An apology must go to the Court of Appeals for not properly bringing before the Court the facts which rival the confusion discussed by Dickens in his novel, Bleak House. There were many ways to decide this case, but the Court conceived that the unanswered que...
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ORDER FINDING A WILLFUL VIOLATION OF SECTION 362 BY ROCKWELL CREDIT UNION AND GRANTING SANCTIONS TO THE DEBTORS This matter is before the Court on the motion of debtors Keith and Julie Grace, seeking sanctions and other relief against Rockwell Credit Union (“Rockwell”) for its alleged violation of the automatic stay imposed by 11 U.S.C. § 362(a). • Although notice of the motion and hearing ther...
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ORDER ON MOTIONS TO DISMISS CASE This matter is before the Court upon two motions seeking to dismiss the Chapter 13 case of Ronald and Bonnie Midkiff. The first motion, filed by the Chapter 13 Trustee (“Trustee”), seeks to have this case dismissed for failure of the debtors to make the payments required by their confirmed plan. The other motion, filed by Bank One, Columbus, NA (“Bank One”), see...
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MEMORANDUM OPINION This case is before the Court upon Frank A. Buonauro’s (“Buonauro”) motion to dismiss, motion for abstention, and motion to appoint a Chapter 11 trustee. An eviden-tiary hearing on the motions was held November 25,1987, at the conclusion of which the Court offered all interested parties the opportunity to submit written memoranda of law in support of their positions. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the complaint of the trustee for revocation of the debtor, Myron F. Topper’s (the “debtor”) discharge, 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,...
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ORDER SUSTAINING OBJECTION TO CONFIRMATION This matter is before the Court upon an objection to confirmation of the Chapter 13 plan proposed by Julia A. Carson. The objection was filed by Frank M. Pees, the standing Chapter 13 trustee for this district (“Trustee”), and was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and by the General Order...
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OPINION Before the court are 23 plans submitted for confirmation and 3 motions to vacate *352 the stay instituted in the respective proceedings. The 23 cases have been consolidated for the purposes of addressing the identical issue raised in each case, namely, the extent to which a Chapter 13 debtor may propose to deal with the claim of a mortgagee in a Chapter 13 plan where ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction — The above-styled case was commenced in this Court on January 14, 1985, by a petition filed by the debtor under title 11, chapter 13, United States Code. The above-styled adversary proceeding was commenced on April 21,1986, by the filing of a complaint to determine the dischargeability of debts owed by the debtor to SouthTrust Bank of Al...
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ORDER ON MOTION TO DISQUALIFY COUNSEL AND REQUEST FOR INJUNCTIVE RELIEF This matter is before the Court upon a motion, filed on behalf of Mount Vernon Plaza Communily Urban Redevelopment Corporation I, Mount Vernon Plaza Community Urban Redevelopment Corporation II, Mount Vernon Plaza Community Urban Redevelopment Corporation III, and Bry- *763 den Road Plaza, Inc., debtors i...
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This matter is before the court on a notice of motion for summary judgment brought by the State of New Jersey, Division of Motor Vehicles, to determine the dischargeability of an insurance surcharge. The New Jersey Merit Rating Plan insurance surcharge, N.J.S.A. 17:29A-35(b)(2), is levied as a result of a conviction for driving while intoxicated, and provides for payments of not less...
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DECISION and ORDER ON CLAIM OF CG & E This bankruptcy case was commenced as a Chapter 13 case on May 8,1985. Debtors converted the case to Chapter 7 on May 15, 1987. Following the conversion, Cincinnati Gas and Electric Company (CG & E), a utility company, filed an application for allowance as an administrative expense of its claim for the provision of utility services during the Chapter ...
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DECISION and ORDER OF TRANSFER The two adversary proceedings identified in the caption above were brought against the same defendant, James Wood Kersting, who, at the time that the adversary proceedings were filed, was a debtor in this court. The proceedings have been consolidated for all purposes under Adversary No. 1-87-0156. The reason that two separate adversary proceedings were filed is ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the Complaint of the liquidating trustee of the Miami Center Liquidating Trust (the “trust”) against the United States of America (the “government”), the Bank of New York (the “bank”), Theodore Gould (“Gould”), Miami Center Limited Partnership, Miami Center Corporation, Chopin Associates and Holywell Corporat...
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ORDER RE MOTION FOR RELIEF FROM STAY Capital Park II Condominium Association (“Capital”) has moved for relief from the automatic stay of 11 U.S.C. Section 362(a) to proceed against the debtor’s condominium unit, used as his residence, to collect post-petition condominium fees owed by the debtor. The Court concludes that the automatic stay does not apply. The debtor’s plan and the order of con...
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AMENDED OPINION AND ORDER ON APPLICATION FOR APPOINTMENT OF COUNSEL NUNC PRO TUNC This case is before the court for consideration of an application filed June 26, 1987 by the trustee appointed to administer this case. The application seeks an order of this court appointing the applicant as counsel for the trustee nunc pro tunc as of July 1, 1981. The application was not served ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of the First National Bank of Freeport (Bank) to Reconsider and Amend Order of Dismissal, the Petition of Robert Olson (Landlord) to Enforce Landlord’s Lien in 1986 Crop Proceeds, the Motion of Lowell Seagren (Landlord) to Amend Order of Dismissal and the Motion of the Federal *492 Land Bank (PLB) t...
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OPINION AND DECISION ON MOTIONS FOR SUMMARY JUDGMENT On December 16, 1987, plaintiff’s and defendants’ motions for summary judgment pursuant to Bankruptcy Rule 7056 were heard before this court. Plaintiff Carl Burley, Trustee of the Reorganization Trust (“Plaintiff” or “Trustee”) of the estate of debtor Bruce Heafitz (“Heafitz”) moved for summary judgment against defendants American Gas &...
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MEMORANDUM DECISION This matter is before the court on a motion to lift stay filed by Chrysler Credit Corporation. Debtor’s counsel filed written opposition to the motion arguing that Chrysler Credit is adequately protected because the debtor has remained current on his payments. Although debtor’s counsel did not appear at the hearing on Chrysler Credit’s motion, the debtor did appear and...
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MEMORANDUM OPINION The debtor has filed an objection to the proof of claim submitted by the Internal Revenue Service, (IRS) in the amount of $1,953.57. Although the proof states that this claim is for taxes due in 1985, the parties agree that the time period in question is 1984. IRS contends that the debtor was a self-employed individual in 1984 and thus obligated to pay self-employment t...
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DECISION Seven years after this adversary proceeding was commenced by the trustee to establish a fraudulent conveyance and impress an equitable lien, we finally come to the end of the long journey. As is the case where fraudulent intent requires proof of circumstantial evidence, it took the trustee that much time to try to put together the myriad tiles necessary to make up the mosaic. Equ...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION This matter is before the Court on an objection to confirmation of the Chapter 13 plan proposed by debtor Robert C. Ashton. The objection, filed by Fifth Third Bank of Columbus (“Fifth Third”), was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this di...
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ORDER THIS MATTER comes before the Court upon a Complaint to Determine Discharge-ability filed by Pioneer General Insurance Company alleging that the debt it is owed is non-dischargeable pursuant to 11 U.S.C. § 523(a)(7) and 11 U.S.C. § 523(a)(4). This matter constitutes a core proceeding under 28 U.S.C. § 157 and this Court recognizes jurisdiction pursuant to 28 U.S.C. § 1334. Trial was held o...
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MEMORANDUM AND ORDER AVOIDING TRANSFERS AS PREFERENTIAL AND DENYING MOTION OF COMMERCE BANK TO LIFT AUTOMATIC STAY Two issues are before the Court: 1) whether granting Commerce Bank four mortgages and deeds of trust, and pledging as security to Commerce two certificates of deposit, constituted fraudulent or preferential transfers; and 2) whether Commerce should be allowed to setoff the am...
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OPINION FACTS On February 19, 1985, the debtors, Vernon and Anita Dettman (“Dettmans”) executed security agreements with the Fresno-Madera Production Credit Association (“PCA”) as collateral for loans made to them, by PCA. The security agreements cover: “All farm products, equipment, livestock, supplies, feed, inventory, accounts, documents, chattel paper, and general intangibles, now owned o...
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OPINION The plaintiffs below appeal the trial court’s order granting summary judgment in favor of the defendants. We conclude that we lack jurisdiction over this appeal and therefore dismiss. FACTS The facts relevant to our disposition are as follows: On July 24, 1986, defendants Bank of Coronado (“Bank”) and Hugo Rivera (“Rivera”) moved for summary judgment in the underlying ad...
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OPINION Before JONES, MOOREMAN and VOLINN, Bankruptcy Judges. The United States Trustee appeals an order authorizing a fee payment and application procedure whereby professionals employed by the debtor and its creditors’ committee would be paid each month without prior court approval of billing statements. We conclude that the trial court has authority, in certain cases, to implement such a proce...
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OPINION I Appellants, Eugene and June Burkhart, filed their Chapter 7 petition after Indian Springs State Bank (“Bank”) called their $50,000 note. The Bank subsequently became insolvent and the Federal Deposit Insurance Corporation (“FDIC”) was appointed its receiver. The FDIC brought a complaint to determine the dischargeability of the Burkharts’ debt pursuant to Sections 523(a)(2)(...
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OPINION ON APPOINTMENT OF A TRUSTEE I. Introduction Sharon Steel Corporation (“Sharon” or “debtor”) filed its voluntary petition under Chapter 11 of the Bankruptcy Code on April 17, 1987. Its schedules show $742 million in liabilities and $478 million in assets. 1 Sharon is a steel maker, with blast furnaces and principal manufacturing equipment located in the vicini...
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OPINION AND ORDER ON DEBTOR’S APPLICATION TO APPOINT AN “EXPERT” NUNC PRO TUNC AND MOTION FOR PAYMENT OF FEES Not long after this case was filed in 1984, Nelson T. Hensley (“Hensley”) was appointed the Chapter 11 Trustee. Not long after his initial involvement, he discovered that he needed help operating the Debtor’s oil and gas properties, so he asked Woodson Wayne Hardin (“Hardin”) to h...
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ORDER APPROVING EMPLOYMENT OF GENERAL COUNSEL FOR DEBTOR-IN-POSSESSION This case has been pending before the court on the application of the debtor-in-possession to retain Stutman, Treister & Glatt, Esquires, of Los Angeles, California, as their general counsel in these chapter 11 reorganization proceedings. This case was filed on January 28, 1988 and involves a major electrical service u...
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MEMORANDUM OPINION REGARDING PRODUCTION CREDIT ASSOCIATION OF MID-MICHIGAN AND FEDERAL LAND BANK OF ST. PAUL STOCK This Court must decide the treatment of the respective claims held by the Federal *99 Land Bank of St. Paul (“FLB”) and the Production Credit Association of Mid-Michigan, f/k/a Production Credit Association of Lansing (“PCA”) with regard to certain stock owned by...
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MEMORANDUM OPINION At the hearing upon confirmation of the debtor’s plan in this Chapter 13 case, the debtor appeared by her attorney William J. Claussen, of Portland, Oregon, and the Oregon State Scholarship Commission appeared by its attorney Paul J. Garrick, Assistant Attorney General, of Salem, Oregon. The Chapter 13 Statement filed by the debtor lists no secured debts, no priority debt and $1...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss Plaintiff’s Complaint and for Award of Attorneys’ Fees (“Motion to Dismiss”). The Defendant’s Motion to Dismiss was heard *865 in Open Court on the date set for trial in the adversary proceeding. Defendant and Defendant’s counsel were present for the scheduled trial and at the...
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ORDER The Prudential Insurance Company of America has moved to dismiss this petition because the debtors are also debtors in another case currently pending in this district. It appears that the first case was filed in May 1987 under Chapter 11 after Prudential had obtained a judgment foreclosing its lien on debtors’ property. In September 1987 an order was entered directing that...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DECLARING DEFENDANT’S INDEBTEDNESS TO PLAINTIFF TO BE NONDISCHARGEABLE IN BANKRUPTCY IN THE SUM OF $6,000 AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM FROM DEFENDANT The plaintiff herein sues for a decree of nondischargeability with respect to the de *183 fendant’s disposition of certain personal propert...
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ORDER DENYING MOTION TO DISMISS CHAPTER 12 CASE Now before the Court is a Motion to Dismiss this Chapter 12 case filed by the Federal Land Bank. The matter came on for hearing February 9, 1988. The debtors appeared personally and by counsel, Keith Blackman, Esq. Federal Land Bank (“FLB”) appeared by counsel, Ralph Wad-dell, Esq. At the hearing the parties announced the following stipulations:...
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ORDER REINSTATING CHAPTER 7 PROCEEDINGS; GRANTING CREDITORS 30 DAYS IN WHICH TO OBJECT TO DISCHARGE OR FILE NONDISCHARGEABILITY COMPLAINTS, OR BOTH; AND DIRECTING THE CLERK OF THE BANKRUPTCY COURT, IN THE ABSENCE OF ANY TIMELY-FILED OBJECTION TO DISCHARGE, TO PROCESS THIS CASE TO DISCHARGE This court formerly issued its written order dismissing the within chapter 7 proceedings as a “subst...
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OPINION A. INTRODUCTION The matters before the court, while taking the familiar form of an adversarial case brought by a Debtor-mortgagor to attack a Proof of Claim of a mortgagee, here the UNITED STATES OF AMERICA, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (hereinafter referred to as “HUD”), on the basis of 11 U.S.C. §§ 506(a), (d) and a counter-motion in the main case by the mort...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE AND JUDGMENT DECLARING THE SECURITY INTEREST OF DEFENDANT SAC RIVER VALLEY BANK IN CERTAIN PERSONAL PROPERTY TO BE SUPERIOR TO THAT OF PLAINTIFF IN THE SAME PROPERTY The plaintiff requests that this court make a determination of the priority of security interests in 3 pieces of machinery- — a 1976 Massey Ferguson diesel Tractor, a sprayer and ...
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ORDER OVERRULING OBJECTIONS TO CONFIRMATION This case came on for hearing on the objection of CFS Mortgage Corporation to confirmation of the debtors’ plan. Thomas J. Lallier appeared for CFS; Craig Cook appeared for the debtors; and J.J. Mickel-son, the trustee, appeared pro se. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core p...
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MEMORANDUM OPINION RE: DISCHARGEABILITY UNDER 11 U.S.C. § 523(a)(9) On June 26, 1987, the above debtor filed for relief under Chapter 7 of the Bankruptcy Code. On the debtor’s Schedule A-3 was listed a contingent, unliquidated debt owing to the plaintiffs in this adversary proceeding. On September 1, 1987, the plaintiffs filed a complaint to determine the dischargeability of their claim u...
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ORDER In this Chapter 11 case, Chase Bank of Arizona, a secured creditor, filed a motion for relief from the automatic stay on February 1, 1988, together with objections to use of cash collateral and request for Order prohibiting use of cash collateral. A companion motion to change venue of the case was also filed on the same date. 1 The Clerk failed to schedule a preliminary h...
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*52 DECISION ON ORDER DENYING MOTION BY DEFENDANT SUBURBAN ATHLETIC CLUB FOR EXTENSION OF TIME TO FILE A NOTICE OF APPEAL This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerni...
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OPINION AND ORDER THIS MATTER comes before the Court on Wayne C. Granger and Winifred M. Granger’s (“Applicants”) Motion for Relief from the Automatic Stay. The Applicants wish to proceed and litigate against Donald Lee Harris (“Debtor”) in state court to determine the Debtor’s liability in a real estate transaction and, if successful, collect any judgment from the Colorado Real Estate Re...
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ORDER This Chapter 11 case is before the Court on a motion for relief from the automatic stay filed by Coggins Granite, Inc. and Coggins Land Company (hereinafter collectively “Coggins”). Following the filing of Coggins’ motion, the debtor, The Georgia Granite Company, Inc., initiated adversary proceeding No. 87-0601A to determine the extent and validity of the liens asserted by Coggins. ...
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OPINION AND ORDER ON RELIEF FROM STAY OF WILLIAM A. SHAMBLIN and MYRTLE R. SHAMBLIN This matter comes before the Court on the motion for relief from stay filed by William A. Shamblin and Myrtle R. Shamb-lin (Shamblins) seeking to dismiss the Chapter 12 bankruptcy of Sherry Lou Dut-ton. The Shamblins contend that the debt- or does not qualify for relief under Chapter 12 of the Bankruptcy Code be...
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ORDER ON CONFIRMATION OF PLAN On December 2,1987 a hearing on confirmation of plan came on for hearing in Des Moines, Iowa. Among those present at the hearing were Rush M. Shortley appearing on behalf of the debtors and Kevin R. Query, Assistant U.S. Attorney, appearing on behalf of the Farmers Home Administration (FmHA). The FmHA has raised four objections to the plan: (1) that the ...
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MEMORANDUM DECISION AND FINAL JUDGMENT THIS CAUSE having come before the Court upon the complaint of Amerifirst Federal Savings and Loan Association (“Amerifirst”) to determine the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of ...
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ORDER ON OBJECTION TO PLAN At the preliminary hearing on confirmation of plan, held in Des Moines, Iowa, Metropolitan Life Insurance Company (Metropolitan) disputed the debtors’ treatment of disposable income. Anita L. Sho-deen, appeared on behalf of the debtors and F.L. Burnette, II, appeared on behalf of Metropolitan. FACTUAL BACKGROUND The debtors sought protection under Chap...
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MEMORANDUM OPINION The Small Business Administration (“SBA”) presses this motion for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1), § 362(d)(2)(A) and § 362(d)(2)(B) against Morysville Body Works, Inc. (“debtor”), an entity which received a $250,000 second mortgage loan now held by the SBA 1 . Considering the evidentiary burdens in this case...
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MEMORANDUM OPINION The trustee has objected to the claim of the debtors to exempt under 11 U.S.C. § 522(d) a distribution check from debtor-husband's now-terminated pension plan. We hold that the total amount of the pension distribution may properly be allowed as a § 522(d)(5) exemption. 1 On May 5, 1983, debtors filed their chapter 7 petition and the requisite Schedule B-4 l...
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MEMORANDUM OF OPINION AND ORDER Halliburton Company (Halliburton), a secured Creditor of William A. Smith Construction Co., Inc. (Debtor), seeks relief from stay under 11 U.S.C. § 362(d) in order *116 to exercise its pledge agreement with Debt- or. The original Complaint for Declaratory and Injunctive Relief and for Relief From Stay filed by Halliburton named the Debt- or...
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ORDER ON OBJECTION TO PLAN On December 3, 1987 a preliminary hearing on confirmation of plan was held in Des Moines, Iowa. Among those present at the hearing were Deborah S. Krauth and Douglas J. Reed appearing on behalf of the debtors and Kevin R. Query, Assistant U.S. Attorney, appearing on behalf of the Farmers Home Administration (FmHA). The parties dispute whether the FmHA has any ri...
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MEMORANDUM OPINION AND ORDER This matter is before the court on motion of the Illinois Bell Telephone Company (“Bell”) to dismiss adversary number 87 A 1223 or in the alternative, for summary judgment. The motion will be denied for reasons set forth herein. Directional International, Ltd., Access Microcenters, Inc., and the New Personal Computer Network, Inc. (“Plaintiffs”) purchased...
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MEMORANDUM OPINION Plaintiffs in this adversary proceeding have filed a five count complaint against three defendants, one of whom is the trustee. Two of the defendants, MNC Commercial Corporation and Maryland National Bank have filed a joint motion to dismiss, pursuant to Bankr.Rule 7012(b), raising questions concerning subject matter jurisdiction as well as standing. This motion has bee...
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ORDER ON OBJECTIONS TO PLAN On December 3, 1987 a preliminary hearing on confirmation of plan was held in Des Moines, Iowa. Among those present at the hearing were Dallas J. Janssen, appearing on behalf of the debtors and Kevin R. Query, Assistant U.S. Attorney, appearing on behalf of the Farmers Home Administration (FmHA). The parties dispute whether the FmHA has an interest in certain c...
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ORDER DENYING CONFIRMATION AND SETTING HEARING TO CONSIDER CONVERSION TO CHAPTER 7 OR DISMISSAL A confirmation hearing was held December 2,1986 in this chapter 11 case filed July 5, 1985, two and a half years ago. The following day, an order was entered reserving ruling on confirmation for three weeks, pending the debtor’s filing certificates that the plan had been accepted by the creditors a...
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MEMORANDUM OPINION AND ORDER The essential question presented is the manner in which the Internal Revenue Service (“IRS”) shall credit tax payments made by the trustee. The issue arises because of the debtor’s objection to the trustee’s proposed distribution of funds. The debtor does not argue that the distribution of the estate’s funds to the IRS (the other party in interest) is improper...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Trustee’s complaint, as amended, to determine the validity, priority and extent of liens and/or interests and for authority to distribute funds. Following an evidentiary hearing with notice thereof having been made upon all entitled parties, a review has been made of the entire record, and pursuant to Rule 7052, Bankr.R., th...
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MEMORANDUM OPINION Presently before the Court is the Motion of Concord St. Clairsville Limited Partnership (“Concord Limited”) for reimbursement of administrative expenses from secured assets, pursuant to 11 U.S.C. § 506(c). Alternatively, Concord Limited seeks nunc pro tunc appointment as a professional, pursuant to § 327, and approval and payment of fees and expenses as allowed under § ...
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ORDER ON MANDATE The plaintiffs’ motion (CP 126) to require the Creditor Trustee 1 to pay them $11,086,-854 forthwith was heard April ll. 2 The Court of Appeals has held in this case that plaintiffs are “entitled to recover the traced assets of $6,488,011”. In re General Coffee Corp., 828 F.2d 699, 707 (11th Cir.1987). Plaintiffs are now also seeking $4,598,-843 interest on their judgme...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the objection of Mellon Financial Services Corporation (Mellon) to confirmation of a proposed repayment plan filed by the Debtor, Estelle Wainwright. Upon evidentiary hearing, with notice having been duly served, the Court has further reviewed the record and all relevant pleadings. Pursuant to Rule 7052, Bankr. R., the following...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Trustee’s objection to a claim filed by the Ohio Edison Company (Edison). Upon a hearing with notice being given to all entitled parties, the following constitutes the Court’s findings and conclusions pursuant to Rule 7052, Bankr. Rules: This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(B), with jurisdiction fu...
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*736 AMENDED OPINION AND ORDER 1 At San Antonio, Texas on the 31st day of March, 1988, came on for consideration sua sponte the setting of the Debtor’s First Amended Disclosure Statement, it having come to the attention of the Court that, through no fault of the debtor, the notice of hearing with respect to the approval of the disclosure statement was not given by the clerk’s office and t...
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MEMORANDUM DECISION The status and history of this adversary proceeding (now in its 16th month) is related in this court’s Order of Abstention of January 27. 82 B.R. 155 (1988) (CP 106). Counts V through VIII, which remain pending here, seek a total of $288,228 plus interest, involving 11 separate claims, under alternative theories based upon 11 U.S.C. §§ 542, 544(a), 547 and 548(a)(2). (CP 3...
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ORDER DENYING MOTION TO REOPEN CASE The motion (CP 3006) of A.Z. Hodge to reopen these eight consolidated cases and to retroactively extend the claims bar date in order to consider his claim of $39,391 was heard March 21. The motion is denied. These related debtors filed for bankruptcy under chapter 11 in March 1985. After a debtors’ reorganization plan was rejected by the creditors, a credit...
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ORDER ON FEE APPLICATION OF S.E. KREISBERG The application (CP 233) of Steven E. Kreisberg for $2,000 as an administrative expense under 11 U.S.C. § 507(a)(1) and § 503(b)(1)(A) was heard on March 21. The application, which is for compensation for legal services rendered to the debtor corporation in a criminal proceeding in the district court, is denied. Counsel was appointed by a Magistrate under...
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MEMORANDUM AND OPINION FACTS This matter comes before the Court on the debtor’s objection to the claim of the Internal Revenue Service, (the “IRS”). The IRS has answered the objection, thus giving rise to a contested matter. See Advisory Committee Note to Bankruptcy Rule 3007. See also In re The Charter Co., 82 B.R. 144, 146 (Bankr.M.D.Fla.1988). The debtor has ...
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*76 MEMORANDUM AND ORDER The issue in this case is whether there has been a breach of fiduciary obligation by a Chapter 11 trustee. A Show Cause Order was issued in this case based upon the Report of the Special Counsel. Hearing was held February 1, 1988 and February 19, 1988. Jack M. Webb was appointed Trustee in this case on November 21, 1985 by the Miscellaneous Judg...
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ORDER DENYING “MOTION FOR NEW TRIAL” On this day, the Court considered the Motion for New Trial filed by the United States of America, regarding two orders entered on March 31,1988. The first order approved an objection to the IRS’s Proof of Claim and the second order approved an objection to the IRS’s Request for Payment — Proof of Claim — Administrative Expense Claim. Rule 3008 states, “A p...
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ORDER DENYING MOTION FOR ABANDONMENT When this chapter 11 case was filed June 3, 1987, the debtor corporation held a 50% interest in Corky-Marcus, Ltd., a Florida limited partnership. The remaining 50% interest was held jointly by A.B. Marcus and his wife. Florida has adopted the Uniform Partnership Act, (effective January 1, 1987) which provides that the bankruptcy of a partner effects disso...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Application for Award of Final Compensation filed by Laventhal & Horwath, accountants for the Debtor. Although there were no objections filed by creditors to the Application, the Court was unable to evaluate and independently determine the merits of the Application due to the Court’s lack of knowledge or familiarity wi...
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OPINION Shanty Creek Lodge Association, Inc. filed a complaint for an order requiring the Deskin Land Trust to convey to it title and ownership, free and clear of any and all liens, of real property commonly known as the “Beach Club,” and for damages. FACTS Background In the late 1960’s, Roy Deskin (“Deskin”) was the sole stockholder of General Sheet Steel Company (“General”). About this time, G...
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MEMORANDUM This is a suit by a trustee in bankruptcy to recover the bankrupt debtor’s interest in two retirement accounts. The retirement plans were established by the debtor’s employer and are qualified under federal tax law and perhaps under ERISA, the Employee Retirement Income Security Act. In order for each plan to qualify under federal law, it included a spendthrift clause. The spendt...
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OPINION MOTION TO DISMISS COUNT II All the defendants with the exception of James Robbins, trustee, and National Acceptance Company of America, have brought a motion to dismiss Count II of the plaintiffs’ complaint. The moving defendants contend that the count must be dismissed because the court cannot grant the plaintiffs the relief they seek under it without violating sections 506(...
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DECISION All parties are requesting a trial by jury on all issues raised in the complaint and in the counterclaim. The four causes of action in the complaint in this adversary proceeding comprise objections to discharge and the dis-chargeability of the plaintiffs’ claims and are founded upon: (1) § 727(a)(4); (2) § 727(a)(5); (3) § 523(a)(2)(A); and (4) § 523(a)(6). The two causes of...
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MEMORANDUM OPINION This case is before the court upon a sua sponte motion by the court under § 707(b) of the Bankruptcy Code questioning whether this case should not be dismissed as a “substantial abuse” of chapter 7 of the Code. The court previously took evidence on the question but before rendering a decision noted the possibility of the constitutional invalidity of the statu...
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MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW SUPPORTING JUDGMENT REFORMING AND VACATING FORMER JUDGMENT DENYING DEFENDANTS’ DISCHARGES AND INSTEAD GRANTING DEFENDANTS’ DISCHARGES IN BANKRUPTCY This court formerly entered its final judgment on Octobér 24, 1986, denying the defendants’ discharges in bankruptcy. The court held that the defendants had intentionally disobeyed its form...
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MEMORANDUM DECISION This adversary proceeding, which was then at issue, was transferred here March 4 from New York on defendants’ motion. It was tried April 5. Plaintiff, a Florida corporation, is a chapter 11 debtor-in-possession in a New York bankruptcy filed Christmas Eve, 1986. It seeks $100,000 in actual and punitive damages from defendants upon the ground that a truck and a con...
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ORDER SUSTAINING DEBTOR’S OBJECTION TO CLAIM THIS MATTER came on to be heard upon the debtor’s objection to the Escambia County Tax Collector’s claim that the debt- or’s 1987 ad valorem taxes should be treated as administrative expenses under Section 503(b)(l)(B)(i) of the Bankruptcy Code. The debtor contends that the taxes are seventh priority expenses under Section 507(a)(7) of the Bank...
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MEMORANDUM AND ORDER ON OBJECTION TO CHAPTER 13 PLAN The State of Connecticut objects to confirmation of the debtors’ Second Amended Chapter 13 Plan on the ground that it fails to provide for the post confirmation payment of interest on post petition taxes. The question here is whether Code § 1322(a)(2) requires such interest payments. For the reasons that follow, I conclude that it does ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court on the motion of Southern Floridabanc Federal Savings & Loan Association (“Southern Floridabanc”) for relief from the automatic stay. 11 U.S.C. Section 362. A hearing on the motion was held May 9, 1988, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon complaint seeking a revocation of the defendant, Stanley P. Putnam, Jr.’s, bankruptcy discharge predicated upon 11 U.S.C. § 727(d)(1) and (2). A trial of this cause was held on March 10, 1988, at the conclusion of which the Court instructed the parties to submit briefs in support of their arguments. Upon the eviden...
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MEMORANDUM OPINION AND DECISION The debtors, John B. and Linda K. Sohra-koff, filed a chapter 12 petition on November 4, 1987. Creditor, Feather River Production Credit Association (FRPCA), brings the present motion for relief from the automatic stay or dismissal. The motion was argued orally on March 7, 1988 and submitted. JOHN D. BESSEY, ESQ., of Hefner, Stark & Marois repres...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Trial on Complaint to Determine Dis-chargeability of Debt. At the Trial, the parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the testimony, the documents which were admitted at Trial, and the arguments of counsel, as well...
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MEMORANDUM OPINION THIS MATTER came on to be heard upon the confirmation of the joint debtor’s Chapter 12 plan of reorganization. The trustee challenged the debtor’s right to make direct payments to impaired secured creditors rather than submitting the payments to the trustee for distribution under the Chapter 12 plan. Having reviewed the statutory and case authority on this issue, this Court...
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MEMORANDUM DECISION ON MOTION TO DISMISS NONDIS-CHARGEABILITY ADVERSARY PROCEEDING AGAINST CHAPTER 11 DEBTOR The issue to be decided by us is whether a corporate debtor that seeks reorganization under Chapter 11 of Title 11, United States Bankruptcy Code, 11 U.S.C. §§ 101, et seq. is subject to the nondischargeability provisions of 11 U.S.C. § 523. 1 Because we hold ...
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MEMORANDUM OPINION Before the Court is a Complaint for Subordination and/or Subrogation of Liens filed by Equibank, a judgment creditor of the above-captioned Debtor (hereinafter “Dan-Ver”). Equibank asserts that the judgments held by Frank Bilotta, Elizabeth Bilotta (Frank’s wife), Gloria Veraldi (Frank’s sister), Louis and Evelyn Sapp, and R. Hardin, Inc. should be subordinat...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, Charter Crude Oil Company (“Charter”), instituted this proceeding pursuant to § 542(b) of the Bankruptcy Code against defendant, P & 0 Falco, Inc. (“Fal-co”), 1 seeking turnover of a debt in the principal amount of $437,779.70, and accrued interest of $300,950.36 for the period from May 21, 1984, through March 15, 1988. Falco d...
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MEMORANDUM An evidentiary hearing on the Equitable Life Assurance Society of the United States (“Equitable”) request for declaratory judgment was held December 7,1987, at North Platte, Nebraska. John Pierce and Daniel Klaus of Rembolt, Ludtke, Parker & Berger of Lincoln, Nebraska, appeared for Equitable; Steven Turner of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim of Omaha, Nebras...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Eagle National Bank of Miami (“Eagle Bank”) to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) 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 bei...
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MEMORANDUM OPINION Before me is the motion of Aaron M. Lavin, A.M. Lavin Machine Works, Inc. and Lavin Centrifuge, Inc. requesting the appointment of a trustee to operate or manage this chapter 11 debtor, pursuant to 11 U.S.C. § 1104. Movants contend that the prepetition and postpetition activities of the debtor’s principal and sole shareholder, in both establishing the corporation Equip-...
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MEMORANDUM OPINION Pending before me is the debtor’s motion to disqualify the law firm of Wolf, Block, Schorr and Solis-Cohen (“Wolf, Block”) and Marvin Krasny, Esquire as counsel to several creditors. The debtor asserts that it consulted with Mr. Krasny in 1984, (while he was connected with another firm), in general, about the possibility of filing bankruptcy and, specifically, about its...
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DECISION The debtors are Wisconsin dairy farmers who have a reasonable hope of continuing with their farming. Ronald and Joan Foth are married; Irma E. Hintz’s husband is deceased. In each case, the debtors have filed petitions under chapter 7 of the Bankruptcy Code and have moved under § 522(f)(2)(B) to avoid nonpossessory, non-purchase-money security interests in farm machinery and catt...
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OPINION ON MOTION TO PAY OVER RENTS OR, IN THE ALTERNATIVE, FOR A CASH COLLATERAL ORDER TO SEQUESTER RENTS FACTS This matter is before the Court on the motion of The Traveler’s Insurance Company (“Traveler’s”) to pay over or to sequester rents, and on the cross-motion of the debtor for authority to use cash collateral. The relevant facts show that the debtor’s only asset is a fo...
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MEMORANDUM These cases raise the issue of whether the Agricultural Credit Act of 1987 (Act) is applicable in the bankruptcy setting. Statement of Facts In the Matter of Dilsaver: The FLB is a secured creditor of Arthur Dilsaver, debtor, and holds a real estate mortgage which provides for the conveyance of rents and profits if foreclosure is initiated. Debtor apparen...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Charles and Anita Hahns’ Motion to Vacate Order. At the Hearing, the parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the evidence presented and arguments of counsel, as well as the entire record in this case. ...
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The plaintiff in this adversary proceeding is a Chapter 13 debtor in this court. Plaintiff has here brought an action seeking an order directed to defendant, Clerk of Common Pleas Court for Brown County, Ohio, requiring that he turn over the sum of $14,000.00, which he is holding, to the Chapter 13 trustee in Cincinnati. The action is brought pursuant to 11 U.S.C. § 542, seeking turnover of prope...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Trustee’s Objection to Claims numbered 150 through 206. The facts not being in dispute, the parties submitted Briefs on the legal issues presented in this matter. An Amicus Brief was filed by Upholster’s International Union Health and Welfare Fund and the U.I.U. Pension Trust in support of the Trustee’s Objection to Claims. The Co...
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MEMORANDUM OF DECISION This contested matter comes before the Court on the U.S. Trustee’s Motion to Dismiss pursuant to 11 U.S.C. § 707(b). A hearing was held on March 18, 1988. This Memorandum of Decision incorporates the Court’s Findings of Fact and Conclusions of Law. BACKGROUND On September 10, 1987, Frank Gaskins and Debra Ann Gaskins (“debtors”) filed a voluntary petition under Chapte...
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OPINION In this adversary proceeding brought by the Chapter 7 Trustee against the insurer of the debtor corporation, the defendant, Continental Insurance Company (“Continental” or “defendant”) has moved for a determination that the adversary proceeding is non-core. The core/non-core distinction is the product of 28 U.S.C. § 157 enacted in response to the Supreme Court holding in Northern Pipel...
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MEMORANDUM In this adversary proceeding brought by the Chapter 7 Trustee, the Continental Insurance Company (“Continental” or “defendant”) has filed a single motion in which it seeks to have the District Court withdraw the reference of this proceeding to the Bankruptcy Court and also to abstain from hearing the matter leaving its resolution to the state courts. The motion was filed with the Bankr...
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MEMORANDUM ORDER AVOIDING LIEN AND DENYING MOTION FOR TERMINATION OF AUTOMATIC STAY This opinion decides 1) plaintiffs complaint which seeks to avoid, pursuant to 11 U.S.C. § 544(a)(3), a lien claimed by the Small Business Administration on real property; and 2) SBA’s motion to terminate automatic stay. Plaintiff Iowa-Missouri Realty Co. (hereinafter Realty) is the wholly owned subsidiary...
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OPINION 1 Issue Where the proceeds of sale of the debt- or’s residential real property exceed the amount of all consensual mortgages thereon, but such proceeds do not exceed the total amount of all liens (consensual and nonconsensual) in an amount sufficient to satisfy the debtor’s homestead exemption, may the debtor use § 522(f) to obtain his exemption by avoiding judici...
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AMENDED OPINION AND ORDER DENYING MOTION FOR AUTHORITY TO ASSUME EXECUTORY CONTRACT AND TO PAY PRE-PETITION MEDICAL CLAIMS I. Preliminary Statement This matter is before the Court upon the Motion for Authority to Assume Executory Contract and to Pay Pre-Petition Medical Claims (“Motion”) filed by Structurlite Plastics Corporation, the debtor and debtor-in-possession (“Debtor”...
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*421 OPINION A. INTRODUCTION The instant adversary proceeding was deposited in our court, despite having only a slight connection with the bankruptcy case of which it is ostensibly a part, after visits to two other forums. It raises several issues of unsettled state landlord-tenant law which we must address in rendering this decision, but we nevertheless must determine this ...
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OPINION At issue is a reprise to the controversy between the Debtor in this Chapter 11 case, *414 filed March 9,1987, and a creditor having a lien on all assets of the Debtor to secure a debt admittedly in excess of the value of the assets, which we addressed in a prior Opinion reported at 76 B.R. 479. In dispute is the troublesome issue of whether, upon the Debtor’s failure ...
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MEMORANDUM AND ORDER ON OBJECTIONS UNDER CODE § 546(a)(1) TO MOTION TO AMEND A COMPLAINT The plaintiff, interim trustee, 1 seeks to amend his complaint in each of the above adversary proceedings to add additional causes of action. Both defendants object, asserting that the causes of action are barred by the two year limitation period under Code § 546(a)(1). The dispositive issu...
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MEMORANDUM DECISION AND ORDER ON TRUSTEE’S MOTION TO COMPEL John S. Pereira, Chapter 7 trustee of A1 Nagelberg & Co., Inc. (Trustee), moves to compel Marine Midland Bank, N. A. (Marine) to produce for his examination unre-dacted versions of two business records pursuant to Fed.R.Bankr.P. 7026 and Fed. R.Civ.P. 26. The redactions were made at the behest of Marine’s counsel who urges that the redac...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS CAUSE came on for final eviden-tiary hearing with notice to all parties in interest upon a Complaint filed by Dorothy Medeiros (Debtor) to determine the dis-chargeability of a student loan pursuant to § 523(a)(8)(B) of the Bankruptcy Code. The Court has considered the pleadings, together with the evidence presented at the final he...
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ORDER ON MOTION FOR PAYMENT OF ADMINISTRATIVE EXPENSE THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Payment of Administrative Expense filed by Citicorp Industrial Credit, Inc. (Citicorp), a creditor in the above-captioned Chapter 11 case. The Court has considered the Motion, together with the record and arguments of counsel and finds that the Motion sho...
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OPINION REGARDING APPLICATION OF ADEQUATE PROTECTION PAYMENTS AND APPROPRIATE PRESENT VALUE RATE UNDER DEBTORS’ CHAPTER 11 PLAN ISSUES This case presents two interesting issues raised in connection with the confirmation of the Debtors’ proposed Chapter 11 plan. First, with respect to certain adequate protection payments made by the Debtors after filing and prior to confirmation,...
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MEMORANDUM OPINION The matter before the Court is the Order of this Court requiring the Debtor to appear and show cause why this case should not be dismissed pursuant to 11 U.S.C. 707(b). 1 Shirley Penna is an employee of the United States Postal Service and earns approximately $31,000.00 annually. Based upon her bi-weekly take-home pay, the Debtor has $1,703.65 available to ...
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The matter under consideration in this Chapter 11 case is a motion to vacate the automatic stay filed by Joseph T. Macari (“Macari”), landlord of the premises of Lew Mark Cleaners Corporation (“Lew Mark”), the debtor herein. Macari seeks relief from the stay to allow him to proceed upon a warrant of eviction, issued pre-petition, to recover possession of a non-residential leasehold located at 1...
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MEMORANDUM OF DECISION I. The issue involved in this proceeding is whether the bankruptcy court is a proper forum to resolve claims of beneficiaries to trust property to which the debtor holds legal title. The following background is derived from the papers filed on a motion for summary judgment in a contested motion for relief from stay and from the case file. II. United F...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Amended Motion for Approval of Secured Borrowing Pursuant to 11 U.S.C. § 364(d) (“Motion”), filed by the Debtors-in-Possession. The two principal creditors of the Debtors, Federal Land Bank of Wichita *149 (“FLB”) and Colorado National Bank of Denver (“CNB”), each filed an Objection to the Motion. This mat...
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ORDER ON MOTION TO DISMISS CASE AND FOR SANCTIONS This is a Chapter 11 case and the matter under consideration is a Motion to Dismiss filed by Metropolitan Insurance and Annuity Company (Metropolitan Annuity). The Motion is based on the contention of Metropolitan Annuity that this is a classic case of a bad faith Chapter 11 filing and therefore it should be dismissed. The matter was set d...
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MEMORANDUM OPINION Presently before the Court is Debtor’s Complaint for Recovery of Preferential Transfers against Basic Packaging Systems, Inc. (“Basic”) and BPS Kansas, Inc. (“BPS”). 1 BPS asserts that the transfer in question did not occur within ninety (90) days prior to the filing of the bankruptcy. Additionally, BPS argues that even if a preference did occur, Allegheny re...
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*142 DECISION The following issue is presented on the plaintiffs’ motion for summary judgment: Is a debt arising out of student loans which first became due more than five years before the filing of the plaintiffs’ bankruptcy petition in the Eastern District of Wisconsin dischargeable, notwithstanding a stipulation entered into by the parties and approved by the bankruptcy court in a previous...
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*568MEMORANDUM OF DECISION RE MOTION FOR DECLARATORY JUDGMENT This matter comes before the Court on a motion seeking a determination of the respective rights of the parties in a grain bin located on real property owned by the debtors. Although this normally would be a matter pursued as an adversary proceeding, the parties, Equitable Life Assurance Society of the United States (Equitable) and James...
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OPINION The Plaintiffs in this adversarial proceeding seek a determination that the Debtor-Defendant’s debt to them is non-discharge-able under 11 U.S.C. § 523(a)(2)(A) and have filed a motion contending that their pre-petition state court judgment against the Debtor entitles them to summary judgment on “the principals [sic] of collateral estoppel and res judicata.” The Debtor ...
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MEMORANDUM AND DECISION This case was commenced on April 22, 1987 by the filing of a voluntary petition in Chapter 7. A first meeting of creditors was held on July 6, 1987 pursuant to 11 U.S.C. § 341. On July 7, 1987, creditors, Plaintiffs herein, moved to examine the Debtor and extend the time within which to object to the Debtor’s discharge. The creditors had each paid money in advance to the...
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MEMORANDUM OPINION DENYING DEBTORS’ MOTION TO AVOID JUDICIAL LIEN PURSUANT TO 522(f) This matter came before the Court upon the Debtors’ Motion to Set Aside a Lien on *104 a 1986 Ford Escort (hereinafter “Ford Escort”). The Trustee filed a response to the Debtors’ Motion as well as an Objection to the Debtors’ Amended Exemption Schedule and for Turnover of Property. The following facts are ...
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MEMORANDUM OPINION Presently before the court is an adversary complaint filed by Plaintiff, ITT Consumer Discount Company (“plaintiff”), against the Debtor, Kenneth C. Horldt (“debtor”), which requests that this court determine whether the debt owed plaintiff by debtor is nondischargeable under 11 *824 U.S.C. § 523(a)(6). 1 The facts of this case are not complex....
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FINDINGS OF FACT CONCLUSIONS OF LAW This matter came before the Court on a Motion For Leave To Amend Informal Proof of Claim filed by Adler, Barish, Lev-in & Creskoff, a partnership, and Avram G. Adler, Marvin I. Barish, Arnold Levin and *101 Howard J. Creskoff, individually and as partners of said partnership (Adler & Barish). After consideration of the evidence adduced...
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MEMORANDUM OPINION The Trustee’s Objection to the Debtor’s Claim of Exemptions came before this Court for hearing, and after a trial, the matter was taken under submission. The primary issue is a construction of Section 513.430(10)(e), Revised Statutes of Missouri (RSMo), which provides an exemption for certain property from the Bankruptcy estate. 1 This matter is a core proceeding over whi...
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*434 OPINION A. INTRODUCTION We herein address an adversary proceeding attacking a Proof of Claim and a Motion to Disburse Proceeds from Sale of Real Estate filed by the Debtor’s mortgagee in the main bankruptcy case which present the same question: how much of the proceeds of a post-petition sale of the Debtor’s realty is the mortgagee entitled? We conclude as follows: (1) ...
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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 of nondischargeability asserted by Jim Kyung Kim, the Plaintiff (Plaintiff), who instituted this adversary proceeding against John J. Pisacano and Gloria K. Pisacano Ortagus (Debtors), the Debtors in this case. The Complaint, which consist...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case and the matters under consideration are two claims of non-dischargeability asserted by John R. Christen (Christen), the Plaintiff who instituted this adversary proceeding. The claim of non-dischargeability set forth in Count I of the amended Complaint is based on the factual allegation that the Defenda...
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OPINION AND ORDER Presented for consideration is a Motion to Transfer a Case originally filed in the Bankruptcy Court for the Middle District of Pennsylvania at Case No. 5-88-00194 to the Bankruptcy Court for the Western District of Pennsylvania. For the reasons provided herein, we will grant the “Motion for Transfer of Case” and will direct the Clerk of this Court to transfer In Re: A & ...
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ORDER ON MOTION TO DISMISS It is not unusual that in the course of administration of cases under Title 11, *696 bankruptcy courts are called upon to resolve either actual or perceived conflicts between provisions of the Bankruptcy Code and provisions of some State or Federal Statute. To resolve a conflict with State law does not ordinarily present any difficulty simply becaus...
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FINDINGS AND RULINGS OF LAW Rednor P. Coombs (the “Debtor”) owns his home at 15 Marshall Street, Fitchburg, Massachusetts as a tenant by the entirety with his wife, Beverly A. Coombs, having taken such title in 1965. The trustee, Richard P. Salem (the “Trustee”), has filed a complaint against the Debtor’s wife (“Mrs. Coombs”), pursuant to 11 U.S.C. § 363(h) 1 seeking to sell he...
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ORDER This matter comes before me on Motion by First City National Bank of Houston (“First City”) to Limit Operation of Debt- or’s Business. Pursuant to 28 U.S.C. § 1334(b), 28 U.S.C. § 157(a), and the District Court’s Order of Reference of Bankruptcy Cases and Proceedings, I have jurisdiction over this contested matter. Since the disputed issue turns on the interpretation and application...
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MEMORANDUM OPINION AND ORDER In this Chapter 7 proceeding, the plaintiff, debtor, filed a Complaint to Determine the Dischargeability of Student Loans. The debt arises from loans made to the plaintiff by Columbus Federal Savings. Higher Education Assistance Foundation (“Foundation”) guaranteed repayment of the loans and is now the holder of the debtor’s notes. The Foundation was joined as...
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ORDER ON MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT This is a Chapter 11 case and the matters under consideration are two Motions filed by the Defendant named in the above-captioned adversary proceeding, the State of Florida Department of Citrus (Department). The Department filed a Motion which seeks a dismissal of Counts I and II of the Complaint and a Motion which seeks a summary...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing with notice to all parties in interest upon cross motions for summary judgment in this ad-versay proceeding. The motions for sum*268mary judgment are filed by intervenor Elias Moran Arosemena (Arosemena), not individually, but as Curador of Florida Peach Corporation of America, International Division (FPCAID) and by James ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS the saga of a luxury yacht which, rather than ending up in a squall in the middle of the Atlantic Ocean, ended up in a very dry but heated storm in the Bankruptcy Court. This odd turn of events was the result of the financial demise of its creator, the yacht manufacturer, Garrett Marine, Inc. (Debtor), whose attempt to achieve re...
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ORDER ON RENEWED MOTION TO DISMISS THIS IS a Chapter 11 case and the matter under consideration is a challenge by Gene Mason (Mason) to the right of the Randy Homes Corporation (Debtor) to seek relief under Chapter 11 of the Bankruptcy Code. The challenge is presented by a Renewed Motion to Dismiss filed by Gene Mason, a creditor in this Chapter 11 case, who contends first that the petition was...
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MEMORANDUM OPINION This case is before the court on the complaint filed by John Z. Rowe and Mary J. Rowe, pursuant to 11 U.S.C. § 523(a)(2), to have this court declare the debt owed the Rowes by Jack D. Showalter, non-dis-chargeable. Based upon the allegations made in the complaint, this court construes the complaint as one under § 523(a)(2)(A). The trial of this matter commenced on December 3,...
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ORDER ON AMENDED MOTION FOR ADMINISTRATIVE CLAIM THIS IS a consolidated Chapter 11 case involving two Debtors, Key Energy Enterprises, Inc. (Key Energy) and Key Stop, Inc. (Key Stop). The matter under consideration is an Amended Motion for Administrative Claim filed by B P Oil, Inc. (B P Oil). The procedural background of this Motion and the events preceding, to be charitable, is laden with a come...
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DECISION AND ORDER Movants, First Irving Apartments Joint Venture of Las Colinas (“First Irving”), LBI Management Inc. (“LBI”) and University Savings Association (“USA”), seek an order dismissing or transferring this case pursuant to 28 U.S.C. Section 1408 and Bankruptcy Rule 1014(a)(2) alleging that venue improperly lies in the Southern District of New York. Alternatively, movants seek t...
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MEMORANDUM OPINION This adversary proceeding came to be heard upon the defendant’s motion to dismiss with prejudice the complaint filed by plaintiff, Centrust Savings Bank (the “Bank”). The complaint filed by the Bank seeks a determination that a sum of over $1.6 million be declared a nondischargeable debt under § 523(a)(2)(A) and § 523(a)(2)(B). The matter for resolution here is whether ...
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*13 RULING ON COMPLAINT SEEKING DECLARATORY JUDGMENT I. This core matter has been submitted by the plaintiff-debtor and the defendant-landlord for a decision based upon a stipulation of facts and upon briefs. The issue to be resolved is whether an option to renew an existing lease between the debtor and the landlord has expired by the passage of time or may still be exercised by the debtor....
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OPINION Appeal from the United States Bankruptcy Court for the District of Nevada. Before MEYERS, MOOREMAN and ASHLAND, Bankruptcy Judges. A secured creditor appeals a judgment of the bankruptcy court denying as unreasonable a request for attorney’s fees. In re 268 Limited, 75 B.R. 37 (Bkrtcy.D.Nev.1987). The Ninth Circuit Court of Appeals had previously determined that a portion of the requested...
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ORDER ON MOTION TO AVOID JUDICIAL LIENS THIS MATTER having come on for consideration upon the debtors’ motion to avoid additional judicial liens on their interest in certain personal and homestead property claimed as exempt, and the Court having reviewed the record and otherwise being fully advised in the premises, has determined as follows: With regard to the personal property claimed as exe...
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MEMORANDUM ORDER AVOIDING JUDGMENT LIENS AS PREFERENCES These adversary actions involve two real estate tracts debtors owned in Greene County and Polk County, Missouri (legal descriptions are in the amended complaints). The trustee originally sought four determinations: 1) determination of various Rose family defendants’ interests in the property; 2) permission to sell the estate’s interest in ...
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MEMORANDUM OPINION AND ORDER Pending is debtors’ Second Amended Plan of Reorganization. 1 Debtors are substantively consolidated. At issue is a provision to subordinate claims arising under two stock repurchase agreements entered into August 3, 1965 between debtor Stem-Slegman-Prins Company (“Stem-Sleg-man”) and shareholders Arthur Mag and Ferdinand Stem. The trustees of the St...
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*778 OPINION By application dated August 13, 1987, present and former directors of the Debtors seek to have the Debtors pay, as an expense of administration, pursuant to 11 U.S.C. § 503(b)(1)(A), legal expenses incurred in connection with threatened litigation against them in their capacities as directors and officers of the Debtors. The Secured Creditors’ Committee and the Equit...
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ORDER ON REHEARING OF ORDERS ON OBJECTION TO CLAIMS THIS IS a Chapter 11 case and the matter under consideration is the third Motion for Rehearing filed by Walter N. Smith and a group of claimants who, at times, describe themselves as “equity security holders,” even though it is evident that this Debtor does not, and never did, have any holders of equity security interest, being a non-profit corp...
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OPINION I Appellant Debtor Iwao Omoto appeals from an order granting relief from stay to validate a foreclosure sale. The foreclosing creditor, Neil Ruggera, did so despite the Debtor’s third Chapter 13 filing the day before. The trial court issued its order after the Debtor’s fourth filing, finding that Omoto had filed in bad faith. The Court declared the foreclosure sale valid and lifted ...
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MEMORANDUM DECISION This matter raises the issue of whether Commodity Credit Corporation may exercise a claimed right of setoff against property of the bankruptcy estate. The debtor and various of its general partners have sought to use the disputed funds in their farming operations and have resisted the setoff. The resolution of legal issues has been hindered by incomplete evidence....
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MEMORANDUM OPINION INTRODUCTION Neis and Amy Nielsen are family farmers who filed for bankruptcy pursuant to Chapter 12 of the United States Bankruptcy Code on September 1, 1987. They filed their original Chapter 12 Plan on November 30, 1987 and subsequently filed a First Amended Plan and Second Amended Plan on January 21,1988 and February 10,1988, respectively. Objections to the Plan were fi...
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MEMORANDUM AND ORDER INTRODUCTION Pending for determination are the objections lodged by the Chapter 7 Trustee to the claims of Debtor’s former employees for wages, vacation and severance pay. For the reasons stated below, the Trustee’s objections will be OVERRULED. BACKGROUND For many years, the St. Louis Globe-Democrat (the “Globe”) was in the business of publishing newsp...
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We are confronted with another instance, recently occurring with increasing frequency in the bankruptcy courts, in which the right to seek relief under Chapter 11 of the Bankruptcy Code is challenged on the grounds that the reorganization petition was not filed in good faith. Specifically, before the Court for determination is a motion filed on July 6, 1987 by JEA Boxing Company, Inc. (“JEA”) a...
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ORDER In this Chapter 7 case, the Debtor’s father Reece Silve, Sr. has moved the Court for an order directing the Trustee to pay over to Silve, Sr. the sum of $23,000.00 for cash loans made by the father to his son for farm expenses for the 1987 crop. The Trustee and two unsecured creditors, as well as a secured creditor, Bank of Sheridan, resist the motion on grounds the perfection of the securit...
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MEMORANDUM OPINION AND ORDER At issue before this Court is whether an indebtedness is owed by defendant to plaintiffs and whether or not, if owed, such indebtedness is nondischargeable. FACTS Tiger Investments (“Tiger”), a limited partnership, was formed to facilitate investment in and renovation of a hotel in downtown Columbia, Missouri. In April of 1983, Mark Stevenson, plaintiff, paid $3...
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MEMORANDUM OPINION INTRODUCTION On February 9, 1988, Tosco Corporation, Plaintiff, (hereinafter “Tosco”) filed a Complaint against Donald Tuggle, Defendant, (hereinafter the “Debtor”) seeking to declare his indebtedness in the amount of $229,677.46 nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). A trial was conducted May 3, 1988, and parties requested and were granted addition...
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ORDER In this Chapter 12 case, hearing, after notice, was held on December 8, 10 and 18, 1987, on confirmation of the Debtors’ Plan, together with objections to the Plan filed by secured creditors Federal Land Bank of Spokane (FLB) and Interstate Production Credit Association (PCA). The issues formed by the objections involve valuation of the farm, the appropriate market rate of interest,...
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MEMORANDUM OPINION This matter comes on as a hearing on the motion of Freedlander, Inc., The Mortgage People, et al. (“debtor”) to expedite a hearing on its Motion to Borrow Funds and to Enter Into a Management Agreement in Connection Therewith. Telephonic notice was given by the debtor to those parties who had filed motions for the appointment of a Trustee and to the U.S. Trustee. Concomitan...
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MEMORANDUM OPINION PROCEDURAL BACKGROUND A petition for relief under Chapter 11 of the Bankruptcy Code was filed by Mack J. and Dorothy Bowen (Bowens) on the 29th day of August, 1986. The United States Internal Revenue Service (I.R.S.) filed an amended proof of claim in the case in the amount of $78,225.59. 1 The Bowens filed this adversary proceeding to determine the exte...
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DECISION This matter involves the determination of the rights to proceeds upon the transfer of a liquor license by a Chapter 7 trustee. It is essentially a contest between the State of Ohio, Department of Liquor Control and Department of Taxation (State) and the Internal Revenue Service (IRS), the trustee no longer having an interest in the fund. The debtor, holder of a liquor license, filed ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTIONS This case is before the Court upon the Trustee’s objection to debtor’s claim of exempt property. Hearings on the objection were held on March 2, 1988, and April 13, 1988. Upon the evidence presented, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF F...
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MEMORANDUM OPINION This matter comes before the Court on the Motion of the Debtors/Defendants for Summary Judgment. The Plaintiff, Stanley M. Zielinski, is represented by Attorney Kenneth F. Ritz. The Debtors are represented by Attorney Steven J. Costello. This Memorandum Opinion and Order shall represent findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Ba...
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MEMORANDUM DECISION INTRODUCTION This bankruptcy case began on January 21, 1983 when the debtor, C.E.N., Inc. (“debtor”) filed a voluntary Chapter 11 Case. The debtor was in the business of fabricating, selling and servicing wood stoves under the corporate names of Mada-waska Energy Corporation (“M.E.C.”) and Madawaska Energy of New England. The claimant involved in the instant case,...
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MEMORANDUM OPINION Three matters, originating from the coal fields of Schuylkill County, are presently before this court: 1. The Motion 1 of APC-Alternative Power Corporation (“APC”) to vacate this court’s August 20, 1986 order, which authorized the sale of property belonging to F.A. Potts & Co., Inc., et al. 2 (“debt- or”) to ENESCO — The Energy Systems Co., In...
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The court has before it the trustee’s motion for partial summary judgment regarding 11 U.S.C. § 547(e)(2). This is a core proceeding. 28 U.S.C. § 157(b)(2)(F). As a preliminary matter, the court declines to hear oral argument on the motion because the court finds the briefs on both sides fully address the issue presented. The trustee argues that SIBC was involved in a scheme so inhere...
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OPINION AND ORDER ON MOTION TO DISMISS CLAIMS FILED BY DEFENDANT GOLDMAN, SACHS & CO. This matter comes before the court on Defendant Goldman, Sachs & Co.’s (“Goldman Sachs”) motion to dismiss the claims asserted against it pursuant to Bankruptcy Rule 7012(b) and Federal Rules of Civil Procedure Rule 12(b)(6). Kaiser Steel Corporation (“Kaiser” or “Plaintiff”) filed an amended compla...
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ORDER DENYING CONFIRMATION OF DEBTOR’S PLAN OF REORGANIZATION AND SETTING FEES DUE U.S. TRUSTEE This matter was before the Court on May 19,1988 at the second continued hearing on Confirmation of the Amended Plan of Reorganization, as First Modified (hereinafter the “Plan”) propounded by the Debtor, Martha Dean Thurmon. After full consideration of the Plan, the objections to the Plan, the eviden...
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AMENDED AND SUBSTITUTED ORDER AND MEMORANDUM OPINION Now before the Court is a Motion to Dismiss the Trustee’s Complaint filed by the Bank of New England, N.A. (BNE). BNE contends that Trustee’s Complaint should be dismissed pursuant to Rules 4, 12(b)(2) and 12(b)(5) of the Federal Rules of Civil Procedure and Bankruptcy Rule 7012(b), for failure to obtain service of Complaint upon the proper par...
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MEMORANDUM OPINION INTRODUCTION This matter is before the Court upon the Complaint of the Plaintiff, Debtor, Eric P. *180 Pearson (hereinafter “Mr. Pearson”) to determine if he is liable to the State of Missouri for unemployment taxes and to the United States of America for unpaid federal withholding (hereinafter “withholding taxes”), Federal Insurance Contribution Act (...
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Coordinated Systems and Service’s Corporation (“CSSC”), a New Jersey corporation engaged in the business of providing warehousing and shipping services to book publishers and others, seeks the appointment of a Chapter 11 trustee for the debt- or, Stein and Day Incorporated, a/k/a Stein and Day/Publishers (“Stein and Day”). Stein and Day has been a publisher of books for about twenty-six years. ...
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MEMORANDUM OPINION ON APPLICATION OF DEBTOR’S COUNSEL FOR FEES In this proceeding filed under Chapter 13 of the Bankruptcy Code, Debtors’ counsel has requested an allowance of $950 for fees. For reasons stated below, an order allowing only $750 is entered this date and the additional amount requested is denied. *717 The standards by which this Court must consider fee applications is set for...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the Complaint of the liquidating trustee of the Miami Center Liquidating Trust (the “trust”) against the Miami Center Joint Venture (MCJV), Olympia & York Equity Corp. and Olympia & York Florida Equity Corp. (0 & Y, collectively), Theodore B. Gould (Gould) and The Bank of New York (the “bank”) in the nature of a decl...
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ORDER Before the court is debtors’ motion to avoid a lien held by Fleet Finance, Inc. (“Fleet”). This is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(B) and (K). The court’s findings and conclusions with regard to debtors’ motion to avoid this lien are as follows: On November 23, 1987, debtors filed a joint Chapter 7 petition. Schedules were filed on December 2, 1987, wh...
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OPINION This adversary proceeding is before the Court based upon a complaint filed by Jonathan Kohn, Trustee of the Estate of Joseph Hursa, against Faith Hursa, wife of Joseph Hursa. 1 The complaint seeks an order from this Court for leave to sell certain property free and clear of liens pursuant to 11 U.S.C. § 863. Joseph and Faith Hursa are presently involved in divorce proce...
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ORDER OVERRULING OBJECTIONS TO CONFIRMATION OF DEBTOR’S FIRST AMENDED PLAN OF REORGANIZATION This Chapter 11 case came on before the Court on April 15, 1988, for hearing on confirmation of Debtor’s plan of reorganization. Debtor appeared by its attorney, Brian F. Leonard. LLT Finance Lease, Inc. (“LLT”) appeared by its attorneys, Diane D. Malfeld and Thomas O. Kelly, III. *603 ...
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MEMORANDUM DECISION In August of 1982, Judith Barth’s (“Barth”) son took out a $2,500 guaranteed student loan from the Bank of Waunakee, for which Barth signed as an “endorser” on September 15, 1982. The loan proceeds were used to finance her son’s studies at the Madison Area Technical College. The loan first came due on November 15, 1983. Less than two years later, on September 9, 1...
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MEMORANDUM OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW The matter before the Court is the Debt- or’s cross motion to avoid liens on farm equipment held as security by South Atlantic Production Credit Association, hereinafter PCA, pursuant to 11 U.S.C. section 522(f). The motion was filed with the Debtor’s response to PCA’s motion for relief from stay. A hearing was held on Novemb...
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MEMORANDUM OPINION By previous order, the Court has denied the Debtor’s Motion for Ex Parte Order Directing Examination of Shareholder. The Debtor’s attorney sought to examine a shareholder and former officer of the debt- or during the section 341 first meeting of creditors. The Court enters this opinion because the issue here is of general importance. The purpose of the first meeting of cr...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Objection to Claim of Exemption filed by the Creditor Wyn T. Taylor. The objection is threefold: 1. The value of the household goods claimed exempt by Debtors exceeds the exemption amount. *658 2. The motor vehicle claimed exempt by Debtors exceed the amount of the exemption. 3. The equipment wh...
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MEMORANDUM AND OPINION AS TO TRUSTEE’S PARTIAL OMISSION TO INVEST ESTATE FUNDS This matter is before the Court on application of various counsel and the Trustee for fees, and on the Court’s own motion to consider whether Trustee Edward Limperis (the “Trustee”) should be surcharged for mismanaging part of the funds of this estate. As described below, substantial sums of money have been held...
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MEMORANDUM DECISION FACTS John Renton Young (“Young”) is the president and sole shareholder of the debt- or, John Renton Young, Ltd., dba Young and Company (“debtor”). Among the debt- or’s scheduled obligations is a debt owed to the Internal Revenue Service (“IRS”) in the amount of $164,457.96 for “payroll taxes” and a debt for “FUTA taxes” in the amount of $3,186.82. Although the ch...
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ORDER ON WEIS’ MOTION TO DISMISS INVOLUNTARY PETITION THIS CAUSE came on to be heard upon the Motion to Dismiss filed by Stephen Weis as general partner of the four limited partnership involuntary Debtors, Tip O Texas RV Village, P.C. Resorts, Floridan Partners, and Tropic Star Park. The sole basis for dismissal is the alleged lack of standing of the petitioning partner to file these invo...
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ORDER ON OBJECTION TO PROOF OF CLAIM THIS CAUSE came to be heard on an Objection to the Proof of Claim filed by the Internal Revenue Service (IRS) for income tax deficiencies. The matter under consideration is whether the claim has priority pursuant to 11 U.S.C. § 507(a)(7). On July 31, 1986, John F. and Nadene Youngcourt (Debtors), filed a Chapter 13 Bankruptcy petition. Two Chapter 13 Plans...
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MEMORANDUM OPINION The three defendants in this proceeding have filed joint motions requesting inter alia: that this court dismiss or abstain from hearing this proceeding; or, that this court order the plaintiff to file a more definite statement; or, that this court enjoin a pending state court lawsuit. These motions have come before me by a circuitous route. On August 21,...
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ORDER Now before the Court are two Motions to Dismiss the pending Chapter 13 case filed by the Trustee and the sole creditor listed by this debtor, First Federal Savings of Arkansas, F.A. (“First Federal”). The Motions came on for hearing May 11, 1985. The debtor and the Trustee appeared pro se. First Federal appeared by counsel, Mary Jane Pruniski, Esq. After hearing testimony, statements ...
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MEMORANDUM OPINION Now before the Court is a Complaint for Turnover of estate assets filed pursuant to 11 U.S.C. § 542 and/or a Complaint to Avoid a Preferential Payment filed pursuant to 11 U.S.C. § 547. The alternative actions were filed by the Trustee in this Chapter 7 case against the State of Arkan*158sas, Department of Finance and Administration (“State”) and the United States Treasury Depar...
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DECISION The trustee has moved this court for a determination of proofs of claim, hereinafter described, filed by Philip M. Kovitz, Esq. (hereinafter referred to as “Kovitz” or “claimant”), so as to establish the status of said claims and whether or not Kovitz is a creditor of the debtor. A hearing on the motion was held before me on June 1, 1988 at which were present Robert J. Musso as trustee...
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ORDER ON MOTION TO DISMISS PENDING CHAPTER 12 CASE The Equitable Life Assurance Society of the United States (“Equitable”) a creditor of debtors herein, has filed its motion seeking dismissal of this Chapter 12 case, asserting that the filing of the petition was in bad faith. In June 1987, debtors filed a voluntary petition in this court under Chapter 7 of the Bankruptcy Code, case n...
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ORDER ON MOTION TO DISMISS THIS IS a confirmed Chapter 11 case involving Henry C. Singleton, Jr. and Joanne Oliveri Singleton (Debtors). The matter under consideration is a Motion to Dismiss the adversary proceeding commenced by a Complaint filed on August 7, 1986 by Treasure Isle, Inc. (Treasure Isle) against Henry C. Singleton, Jr., one of the Debtors. The Complaint of Treasure Isle sets forth s...
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OPINION CONCERNING CERTAIN OBJECTIONS TO FOURTH AMENDED PLAN AND AS TO MOTION FOR RELIEF FROM STAY Submitted to the Court for confirmation is Debtor’s Fourth Amended Plan *390 of Reorganization, as amended by Debtor’s First, Second and Third amendments thereto and by Debtor’s First, Second and Third amendments to the attached Modifications Memorandum, as further amended by te...
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OPINION AND ORDER GRANTING MOTION TO DISMISS This matter is before the court upon defendant’s motion to dismiss plaintiffs’ complaint seeking damages for contempt for violation of 11 U.S.C. § 524. Upon consideration thereof, the court finds that defendant’s motion is well taken and should be granted and that plaintiffs’ complaint should be dismissed. FACTS Plaintiffs, Debtors in...
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MEMORANDUM OF OPINION AND DECISION This proceeding came before the Court on the complaint of Syracuse Savings Bank (Syracuse) to determine dischargeability of debt under Section 523(a)(2)(B) of the United States Bankruptcy Code and the answer of Alan Weiner (Debtor). Determination of dischargeability of debts is a core proceeding pursuant to Section 157(b)(2)(I) of Title 28. At the trial Defend...
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ORDER ON MOTION TO ABSTAIN AND MOTION TO DISQUALIFY AND SUPPLEMENTAL MOTION TO DISQUALIFY THIS IS a confirmed Chapter 11 case and the matter under consideration is presented in a seemingly endless battle, facially between Siesta Sands Development Company (Debtor) but in reality between Mr. and Mrs. Comeau (Comeaus) and Jay Lancer (Lancer) the original counsel of record of the Debtor. The Comeaus w...
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*712 ORDER ON MOTIONS TO DISMISS THIS IS an involuntary Chapter 11 case instituted against Wedgewood Golf Associates, Ltd., a Florida limited partnership (Wedgewood Golf). This is the third round which, according to Security Properties and Savers Federal, is not for the proverbial charm but, on the contrary, should be the third strike against Wedgewood Golf. The present Invo...
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ORDER This case is before the Court on the above-referenced debtors’ motion to assume and assign a lease and the lessor’s motion to deny approval of assumption and assignment. The lessor, Claude W. Bailey, asserts that he terminated his lease with the debtors prior to the date they filed their Chapter 11 petition. The Court conducted a hearing on this matter on May 25, 1988, and requested the part...
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OPINION Before us are motions of the Debtor to reject two alleged executory contracts, pre-petition agreements of the Debt- or (1) with the Yellow Cab Owners and Drivers Association (hereinafter “the Association”) on April 16,1986 (hereinafter “the April Agreement”); and (2) with a splinter group of the Association, the Committee of Concerned Taxi Drivers/Owners (hereinafter “the Committe...
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ON REMAND, FINDINGS OF FACT AND CONCLUSIONS OF LAW, AND DECISION AND ORDER GRANTING TRUSTEE’S MOTION TO ENFORCE CONFIRMATION ORDER This matter originally came before the Court on the Motion to Enforce Order Confirming Trustee’s Plan of Reorganization and to Hold the United States Department of the Army in Contempt, filed jointly by the Trustee, the Creditors’ Committee, Allied Marine, Inc., and...
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MEMORANDUM DECISION The United States, on behalf of the Army Military Traffic Management Command (“MTMC”), has moved for relief from stay on two grounds:- First, that the debtor’s post-petition performance failures in the timely delivery of military household goods in international traffic requires reinstatement of a previously suspended one year disqualification; and, second, that the de...
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FINDINGS OF FACT, OPINION AND CONCLUSIONS OF LAW Pinetree Partners, Ltd. (Pinetree), as debtor and debtor in possession, commenced the instant adversary proceeding against OTR and State Teachers Retirement System of Ohio (STRS) 1 wherein Pi-netree seeks to subordinate or recharacterize the claims of OTR and the return of moneys paid by Pinetree to OTR. OTR denies both the factu...
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MEMORANDUM OPINION Debtor brought this motion for authorization to use cash collateral pursuant to § 363(c)(2)(B) of the Bankruptcy Code (the “Motion”). I held hearings on the Motion on February 23 and March 31, 1988. I awarded interim use of cash collateral and took the matter under submission to determine whether long term use of cash collateral is justified in light of all the circumst...
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MEMORANDUM OPINION The issue before me is the appropriate standards to apply when a debtor requests that a case be reopened to add an unscheduled pre-petition creditor. JURISDICTION This court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing ...
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FINDING AS TO MOTION TO DISQUALIFY PURSUANT TO RULE 5004 This matter comes before the court upon the Motion to Disqualify Pursuant to Rule 5004 and the Affidavit to Support Disqualification Pursuant to Rule 5004 filed by the debtor, L. Peter Olcese (hereinafter referred to as “Olcese”), on behalf of the debtors. The matter was set for hearing with notice given to all interested parties. On May 10...
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MEMORANDUM OF OPINION AND ORDER RE: DISCHARGEABILITY AND ORDER The matter before the Court is a complaint filed by Robert L. Crist and Linda S. Crist (Debtors) to determine the discharge-ability under 11 U.S.C. section 523(a)(1) of certain federal personal income tax liabilities and to determine the extent of their liability, if any, under 11 U.S.C. section 505. A hearing was held on Octo...
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MEMORANDUM OPINION AND ORDER REGARDING THE ASSIGNMENT OF CLAIMS The question presented for decision is both unique and complex in that it involves a matter of first impression before this Court and it concerns an area that could potentially affect a large number of claimants in bankruptcy proceedings. This Court must determine whether a claim “deemed filed” in a Chapter 11 proceeding remains ef...
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MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The defendant, Timothy J. Mahoney, has moved to dismiss under Fed.R.Civ.P. 12(b)(5) & (6), and also on the theory of immunity. The motion is accompanied by an affidavit. When matters outside the pleadings are presented on a motion to dismiss, and the motion is treated as a motion for summary judgment under Rule 56, “all parties shall...
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83 B.R. 853 (1988) In re Marshall CURTIS, Debtor. Marshall CURTIS v. In re the PILGRIM HEALTH AND LIFE INSURANCE COMPANY, Creditor. Bankruptcy No. 187-00834. United States Bankruptcy Court, S.D. Georgia, Augusta Division. March 15, 1988. *854 Leon Larke, Augusta, Ga., for debtor. Benjamin Allen, Augusta, Ga., for creditor. MEMORANDUM OF FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER JOHN S. DALI...
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OPINION The filing of a secured proof of claim by Continental Bank and Trust Company (Continental) has triggered two related disputes, which have been consolidated and now must be resolved. First, the debtor, Emil Mihalko, filed an objection to Continental’s proof of claim contending that the sum claimed is. excessive and requesting that any claim allowed be classified as unsecured; secon...
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*44 DECISION AND ORDER DENYING DEFENDANT’S MOTION “REGARDING SUBJECT MATTER JURISDICTION AND CHANGE OF VENUE REQUEST” FACTS On January 16, 1987 Hamilton Allied Corporation (Plaintiff-Debtor) filed an adversary proceeding against defendant Ker-kau Manufacturing Co. for an “Order Directing Kerkau Manufacturing to Show Cause Why It Should Not Be Held in Contempt of Court.” Essentially the comp...
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OPINION 1 Case Summary In December of 1984, Mario Scotto, Gui-seppe Scotto and Antonio Scotto (“Scot-tos”) entered into an agreement of sale with Frank R. Flanegin, Gary E. McCray and Bradley T. Erford as partners, doing business as Kelco Enterprises (the “debtors”). This agreement of sale provided for the sale of a Pennsylvania Retail and Restaurant Liquor License that w...
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MEMORANDUM OPINION AND ORDER The issue before the Court is what time constraints, if any, should be imposed upon a debtor, pursuant to 11 U.S.C. § 501(c), for filing a protective claim on behalf of a creditor who has not timely filed its claim. Ervin and Frances Kimber filed their joint Chapter 13 Petition on March 9, 1987, and a Meeting of Creditors pursuant to Section 341 was set for June 1...
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MEMORANDUM OPINION This is an action to determine the validity and extent of a trust deed on real property. The Plaintiffs’ amended complaint alleges that “[t]he security interests of the Defendants can be satisfied in full by Plaintiffs remitting to the Defendants the fair market value of the property upon which the security interest attaches.” At the time of trial of this matter, the Co...
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OPINION This is a complaint by a corporation and its principal stockholder alleging a wrongful foreclosure by the corporation’s lender, Bank of Boston — Western Massachusetts, N.A. (the “Bank”), which caused the termination of its business. The case was tried under three theories outlined in the plaintiffs’ opening: that the corporation’s loans were not in default; that the Bank had no se...
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MEMORANDUM OPINION On April 22, 1988, after hearing testimony and arguments of counsel on the trustee’s motion for discovery sanctions against the plaintiff, Richard Paolino, I entered an order which provided inter alia: 1 *367 Dr. Paolino shall provide full and complete answers to the requests for production, interrogatories and additional interrogatories...
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ORDER ON MOTIONS FOR COMPENSATION The above motions were consolidated for decision because (1) they arise in the same case, (2) they are all motions for interim compensation of attorneys pursuant to 11 U.S.C. § 331 and (3) there is at least one issue raised that is common to all three motions; namely, that compensation was requested by the moving attorneys for services rendered to the est...
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ORDER ON REPLACEMENT OF GENERAL PARTNER IN A PLAN OF REORGANIZATION This matter comes before the Court on the motion of Pikeview Venture (Pikeview), the sole general partner of the debtor, to abate confirmation proceedings in the Chapter 11 bankruptcy of Sovereign Group, 1984-21 Ltd. (Sovereign Group). This Court granted the motion to abate confirmation proceedings pending a final deter *327 ...
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MEMORANDUM OPINION This matter comes before the court by the debtors’ objection to Secured Claim of Federal National Mortgage Association (“FNMA”). The debtors assert that FNMA’s claim of $9,625.14 should be reduced because of violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq. The debtors further assert that the claim of FNMA includes attorney’s fees in excess of ...
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OPINION The Union Savings Bank (“Union”) is moving to compel the “debtor-in-possession” to bring an action to set aside as a fraudulent conveyance a mortgage given on April 19, 1985 by Augie's Baking Company, Ltd. (“Augies”) to Manufacturers Hanover Trust Company (“MHTC”). 1 Alternatively, Union seeks an order authorizing it to institute such an action on behalf of the creditor...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER In conjunction with the confirmation hearing on the debtor’s proposed Chapter 13 plan, hearing was held on the objection to confirmation filed by General Motors Acceptance Corporation (“GMAC”) and objection to the claim of General Motors Acceptance Corporation filed by the debtor. The Court makes the following FINDINGS OF FACT 1. The debtor fil...
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ORDER ON MOTION TO DISMISS This is a Chapter 7 liquidation case and the matter under consideration is a Motion to Dismiss the case, filed by James R. Jessell, the duly qualified and acting Trustee of the estate of the above-named Debtor corporation. The Trustee seeks a dismissal of this Chapter 7 case on the ground that the Debtor corporation failed to abide by an order of this Court which direct...
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OPINION AND ORDER ON OBJECTIONS TO CONFIRMATION AND MOTION TO DISMISS This matter is before the Court following a hearing held June 7, 1988 on the confirmation of the debtors’ Chapter 12 plan of reorganization. Aetna Life Insurance Company (“Aetna”) filed objections to the confirmation of the debtors’ plan, and also filed a motion to dismiss this matter on the basis of its objections. ...
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MEMORANDUM OPINION The Debtors in each of the above submitted cases have filed motions under 11 U.S.C. § 522(f)(2) to avoid nonpossessory, nonpurchase-money security interests in *119 their personal property held by ITT Financial Services (ITT). Subsection (f) of § 522 1 reads as follows: (f) Notwithstanding any waiver of exemptions, the debtor may avoid the f...
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MEMORANDUM OPINION This adversary action by the Trustee seeks to recover an alleged preference paid by debtor to defendant for 40,000 pounds of fescue seed, and raises the ever troublesome (since 1984) question of how long after delivery can payment be made and still be considered “made in the ordinary course of business or financial affairs of the debtor and the transferee; and made according to ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The objection to confirmation by creditor, The Regents of the University of California (The Regents), to the Chapter 13 plan of Patrick Newberry (Newberry) was heard before this court on November 10, 1987. Eric K. Behrens, Esq., appeared and argued on behalf of objecting creditor, The Regents. W. Scott de Bie of the Law Offices of Max Cline appeared...
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OPINION For the second time, we are presented with a challenge by the same Chapter 13 Debtor to the secured status asserted by the City of Philadelphia for $1,046.69 of the amount in a Proof of Claim filed in consideration of delinquent pre-petition water and sewer charges. This challenge, spirited undoubtedly by dictum in our last Opinion, at 83 B.R. 344, 346-47 (Bankr.E.D.Pa.1988), that...
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DECISION AND ORDER REQUIRING CONTINUED HEARING ON MOTION OF GEORGIA MARKUNES JOHNSON FOR RELIEF FROM AUTOMATIC STAY This matter is before the court upon the motion of Georgia Markunes Johnson for relief from the automatic stay of 11 U.S.C. § 362 to permit her to initiate proceedings in state court in order to enforce certain claimed rights in shares of stock owned by Frank J. Markunes. ...
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OPINION AND ORDER The debtor, Robert Kessler, works for Cargill and his wife, KRISTENA KES-SLER, a joint debtor, works for Robert Morris College. For the last ten years they have also operated a mini cow-calf operation. Their tax returns for the years 1985 through 1987 indicate the following income from their employment and their cow-calf operation: Year Employment Income Cow-Calf Income 19...
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MEMORANDUM DECISION AND ORDER At the time the bankruptcy petition was filed in this case the Debtors were plaintiffs in a state court action. The state court action is still pending and involves a suit for recovery of personal injury damages, including lost consortium. Debtor Maryella Sue Loyd has claimed an exemption of an anticipated award of damages for lost consortium pursuant to 31 O.S. § ...
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OPINION This long-standing dispute over a Proof of Claim filed by one Deborah Mintert (hereinafter referred to as “the Claimant”) against the estate of the instant Chapter 7 Debtor raises several provocative issues of both bankruptcy law and state law in a unusual factual setting. We conclude that the Claimant is entitled to claims for wages earned while working in a corporate restaurant ...
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MEMORANDUM OPINION ON MOTION TO DISMISS VOLUNTARY PETITION AND TO DISQUALIFY DEBTOR’S COUNSEL The issues presented in this contested matter are whether a voluntary petition filed under Chapter 11 of the Bankruptcy Code must be dismissed, on motion of a party in interest, due to the intended voluntary filing being without the consent of both general partners; whether the order for relief a...
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SUPPLEMENTAL OPINION REGARDING INTERIM FEE APPLICATIONS I. INTRODUCTION This matter is before the Court 1 on eight interim attorney fee applications, filed by *907 four law firms; three firms represent the debtor and the other represents the unsecured creditors’ committee. These interim fee applications are summarized as follows: A.Hertzberg, Jacob and ...
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MEMORANDUM OPINION This matter comes before the Court upon a motion by Tom L. Barrow (“debtor” or “defendant”) to dismiss the complaint prosecuted by George L. Gullette (“plaintiff” or “Gullette”) to revoke the debtor’s discharge. Gullette was substituted as plain *881 tiff in the place of Robert Cell (“Cell”), who had filed the complaint and settled with the debtor during th...
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*79 MEMORANDUM THIS MATTER comes before the Court on Defendant’s Motion to Dismiss (Fil. # 3)' in the adversary proceeding on the grounds that: 1. The complaint fails to state a claim upon which relief can be granted. 2. The Court lacks jurisdiction because the complaint was filed late. 3. Defendants had not been served with the complaint. A status hearing was held...
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MEMORANDUM OPINION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The facts of this case are straightforward and not in dispute. The debtor purchased a 1984 Chevrolet from McDonald Pontiac-Cadillac-GMC, Inc. She financed the purchase with a loan from defendant Second National Bank of Saginaw and signed a security agreement granting defendant a security interest in the vehicle. Following ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE, having come before the Court upon plaintiffs’ complaint to determine the validity, priority and extent of the liens of Bradford National Bank (as trustee under certain industrial development revenue bonds) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the a...
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MEMORANDUM OPINION Debtor filed her Chapter 13 proceeding on December 22, 1987, at 1:30 P.M. and followed same with an adversary action under 11 U.S.C. § 548 on February 9, 1988. The adversary sought to set aside a foreclosure that occurred at 2:00 P.M. on December 22, 1987, some 30 minutes subsequent to the filing of the petition in bankruptcy. At the hearing, the reason for this unique approa...
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ORDER ON DEBTOR’S MOTION TO EMPLOY FIRST BOSTON CORPORATION FOR MERGER AND ACQUISITION SERVICES On May 13, 1988, the debtor filed its Motion For Order Approving Employment Of The First Boston Corporation For Merger And Acquisition Services pursuant to §§ 327 and 328 of the Bankruptcy Code. The debtor, Public Service Company of New Hampshire (PSNH), previously requested authority to employ First...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This adversary proceeding for turnover of property having been heard and based upon the evidence presented at trial, the court makes the following findings of fact and conclusions of law. In a series of transactions, Outdoor Displays Welding & Fabrication, Inc., debtor in the above referenced Chapter 11 proceeding (hereinafter “Outdoor Displays”) con...
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FINDINGS OF FACT AND CONCLUSION OF LAW THIS CAUSE having come on to be heard on March 9, 1988, March 14, 1988, and May 11, 1988, upon the Adversary Complaint filed by the above-captioned Debtor to avoid a security interest in the Debtor’s accounts receivable held by an account receivable finance company, and additionally to determine the relative priorities of the account receivable finan...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon Sure-Snap Corporation’s (the debtor’s) Complaint for Declaratory Judgment, to Set Aside Pre-Petition Conveyance, for Turnover of Funds, and for Money Judgment pursuant to 11 U.S.C. § 542 and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, c...
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MEMORANDUM OF DECISION AND ORDER ON MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS This matter is before the court on the debtor’s “Motion for Leave to Proceed In Forma Pauperis and Supporting Declaration (Pursuant to 28 U.S.C. 1915 and 28 U.S.C. 1746).” In February 1988, this court received correspondence from the debtor which was treated as a pro se motion to remove the trustee pursuant to 11...
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MEMORANDUM OF OPINION ' AND ORDER This matter came on for hearing upon the objection to confirmation of the Debt- or’s plan filed by First Family Mortgage Corporation (First Family). Following an examination of the record, argument of counsel, and a review of the relevant pleadings, the following facts and conclusions Were established: This is a core matter under 28 U.S.C. § 157(b)(2...
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ORDER ENFORCING ORDER OF JULY 5, 1985, AND ACCORDINGLY DIRECTING THE DEFENDANT TO TURN OYER TO PLAINTIFF THE SUM OF $60,157.66 PLUS INTEREST AT 9% PER ANNUM FROM MAY 3, 1984, TO DATE OF PAYMENT The trustee in bankruptcy in this case has for some years resisted payment to the Farmers State Bank of some of the proceeds of sale of a certain tract of real property, which has heretofore been r...
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MEMORANDUM OPINION This adversary action involves the attempt of debtors to remove from state court (the Circuit Court of Boone County, Missouri) a cause of action which was therein pending at the time of the filing of debtors’ petition in this Court. That cause of action is a tort action sounding in fraud. The putative defendants are the Farmers Home Administration, Don Wemhoff, the Court Supervi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court on March 29, 1988 and May 16, 1988, upon the Complaint of Chicago Title Insurance Company, Inc. objecting to the debtor’s discharge pursuant to 11 U.S.C. § 727(c)(1) and Bankruptcy Rule 4004(a), and the Court, having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses,...
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MEMORANDUM AND ORDER ON APPLICATION FOR APPROVAL OF EMPLOYMENT Intech Capital Corporation seeks approval for the employment of the law firm, Kronish Lieb Wiener & Heilman, which represented that company and its wholly owned subsidiary, Intech Leasing Corporation, prior to the commencement of these chapter 11 cases. Fujitsu Systems of America, Inc., a creditor, and the Official Unsecured C...
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OPINION We herein consider that portion of a motion by PAINEWEBBER, INC., the corporate former employer of the Plaintiff-Debt- or which was the sole original Defendant in this proceeding (hereinafter referred to as “PW”), seeking to dismiss those Counts of the Debtor’s Amended Complaint based upon defamation (Count II) and intentional infliction of emotional distress (Count III). We shall...
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OPINION AND ORDER This matter came on to be heard on the Trustee’s objection to the debtor’s claim of exemptions. The debtor and his wife owned their residence in joint tenancy. The joint tenancy was severed when, as part of an estate plan, they conveyed their residence to a land trust, with each receiving an undivided one-half beneficial interest in the land trust. Subsequently, the debt- or’s...
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MEMORANDUM OPINION Presently before this Court is Plaintiff’s objection to the Debtor’s discharge, wherein he avers that the Debtor (1) concealed and transferred property within one year of filing bankruptcy in order to hinder, delay or defraud creditors; and (2) knowingly and fraudulently made a false oath. Based upon the pleadings and testimony at trial, the Court determines that the De...
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AMENDED MEMORANDUM OPINION The three cases addressed in this opinion are single asset real estate cases. Each Debtor is an operating apartment complex. Aran B. Katz is the general partner of each debtor and the first lien on the assets of each is held by First Nationwide Bank (hereinafter FNB). The current market value of the assets of each debtor is below the amount of the debt secured b...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTIONS THIS IS a Chapter 7 liquidation case, and the matter under consideration is a challenge by the Trustee Charles L. Weissing (Trustee) to the homestead exemption claim of Narin and Nipapan Imprasert (Debtors). It is the contention of the Trustee that the residential home located at 1909 Colleen Street, Sarasota, Florida, does not meet the requir...
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MEMORANDUM OPINION One of the most unpleasant judicial duties which bankruptcy judges are called to perform involves reviewing fee applications submitted by professionals. The facts and circumstances of this case, as discussed below, and 11 U.S.C. §§ 326 and 330, mandate reduction of the compensation sought by the Trustee and the attorneys for the Trustee and only partial reimbursement of...
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ORDER DENYING MOTION FOR RULE 2004 EXAMINATION OF DEBTOR The Court has reviewed First Financial's Motion for Rule 2004 Examination of Debt- or and the Debtor’s Response. For the following reasons, the Court finds that the motion must be denied. First Financial initiated this adversary proceeding by filing its Complaint to Determine Dischargeability of Debt. An adversary proceeding is governed...
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MEMORANDUM AND DECISION This case was commenced by the filing of a voluntary petition in Chapter 13 on October 1, 1984. On October 28, 1986, the Debtor, Ronald Horton, initiated this proceeding against the Internal Revenue Service (“IRS”) to determine 1) the dependents for whom he was entitled to declare federal tax exemptions during the years 1982 through 1986 inclusive; and 2) whether during tax...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon Century Bank at Broadway’s (“Creditor” herein) Motion for Relief from Stay, or in the Alternative an Order Requesting the Debtors to Comply with 11 U.S.C. § 521(2). Although this matter was set for a relief from stay hearing, Creditor’s and Debtors’ counsel acknowledged that, in essence, this was an effort by the Credito...
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MEMORANDUM OPINION This matter comes before the Court on cross motions for summary judgment filed by the debtor/plaintiff Sentry Data, Inc. (“Sentry”) and by the defendant Control Data Corporation (“Control Data”). The issue is whether an agreement between the parties can be assigned by Control Data. The Court holds that the agreement can be assigned. For the reasons set forth herein, the...
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*719 ORDER ON MOTION FOR PAYMENT OF ADMINISTRATIVE CLAIM THIS IS a Chapter 11 case and the matter under consideration is a Motion filed by IDS Partners, Ltd. (IDS) who seeks an Order directing the Chapter 11 Debtor, Industrial Distribution Services, Inc. (Industrial) to pay administrative rent. The administrative rent claim asserted by IDS covers the period of June 13, 1987 up to and includin...
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*963 MEMORANDUM OPINION These matters come before the Court on motions for summary judgment pursuant to Fed.R.Civ.P. 56 and Fed.R.Bankr.P. 7056, filed by plaintiff Robert Dunn Glick, as trustee, (“Trustee”) against debtor-defendant Dennis L. Mirus (“Mirus”). For the reasons set forth herein, the Court having considered all the pleadings and exhibits filed does hereby deny the Trustee’s motion...
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*440 MEMORANDUM OPINION Before me is the debtor’s motion to dismiss his chapter 11 case. The motion is opposed by the United States Trustee who has also filed a motion to convert this case to one under chapter 7. The only basis for the trustee’s opposition and his motion is that the debtor has failed to pay all quarterly fees required by 28 U.S.C. § 1930(a)(6). The debtor responds that it sho...
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MEMORANDUM OPINION This matter involves questions relating to the applicability of the attorney work product, attorney-client, and joint defense privilege. On December 30, 1986, Michigan Boiler and Engineering Company (debtor) filed a voluntary Chapter 11 bankruptcy case. On February 5, 1987, Mr. Charles Collins was appointed trustee of the debtor’s estate. On February 24, 1987, the ...
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MEMORANDUM OPINION Debtors Mark M. Trippensee and Marjorie P. Trippensee filed for relief under Chapter 7 in December of 1987. Jefferson Bank of Missouri filed this adversary action on March 17, 1988, and trial was had on May 4, 1988. There is little dispute as to the facts. There is considerable dispute as to the interpretation to be placed thereon. The Bank failed to prove that Marjorie P. Tripp...
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MEMORANDUM OPINION Debtors brought this action against defendants for violation of §§ 362, 524 and 525 of the Bankruptcy Code. Defendants moved to dismiss for failure to state a cause of action and to strike certain portions of the complaint (the “Motion”). On November 16, 1987,1 heard the matter and took it under submission. JURISDICTION This court has jurisdiction over this ad...
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MEMORANDUM OPINION AND ORDER FACTS Federal Land Bank (FLB) objected to confirmation of the Chapter 12 debtors’ proposed amendment to their confirmed plan which provides for the transfer of $2,900.00 of FLB stock to the FLB in partial payment of debtors’ obligation to that entity. LAW Section 1225(a)(3) provides that the Court shall confirm a plan if “the plan has been proposed in good fai...
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MEMORANDUM OPINION Before the Court are numerous Motions and an Adversary proceeding related to the above-captioned Debtor, to-wit: 1. Rescheduled Rule to Show Cause Why Case Should Not Be Dismissed For Failure to Complete Filing; 2. Motion to Dismiss Under 11 U.S.C. § 305, filed by John M. Silvestri, State Court Receiver; 3. Motion to Convert to Chapter 7 or to Appoint a Chapter 11 Trust...
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I This matter is before the Panel on an appeal of a final order granting Appellee Helen Lysenko relief from the automatic stay. The Debtors argue that reversal is required under Section 522(c) of the Bankruptcy Code (“Code”). We AFFIRM. II FACTS The Debtors William Boucher and George Pieri operated, as a partnership, a clothing store known as “A Man for All Seasons.” Helen L...
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ORDER We dismiss this appeal as untimely. The order appealed from was entered on September 24, 1986 and the notice of appeal *230 was filed on December 4, 1986, subsequent to the ten day limit of Rule 8002(a) and the Rule 8002(c) thirty day limit for appeals filed late because of excusable neglect. Bankruptcy Rules 8002(a), 8002(c). On January 22, 1987, the Bankrupts cy A...
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OPINION Before JONES, ASHLAND and MOOREMAN, Bankruptcy Judges. FACTS The appellant, Richard Dullanty, is an attorney licensed to practice in the state of Washington. In early 1986, Dullanty became in-house counsel for the debtor, Selectors, Inc. Selectors was not in bankruptcy at that time. Dullanty’s employment by Selectors was governed by an employment contract executed on February 20, 19...
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OPINION The Tejedas appeal the trial court’s decision to award condemnation proceeds to the bankruptcy trustee rather than to the Teje-das. The trustee appeals the trial court’s decision to award part of the condemnation proceeds to the Bank of A. Levy. We AFFIRM both decisions. FACTS In December 1980, Robert and Patricia Rossi (“Debtors”) purchased from Gilbert Levy five lots of...
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OPINION Ken Lloyd and Janet Ruth Patterson appeal the bankruptcy court’s finding that the appropriate discount rate pursuant to Bankruptcy Code § 1225(a)(5)(B)(ii) is the prime rate plus four percentage points for loans extending beyond five years. We affirm. FACTS On March 16,1987 the debtors filed their Chapter 12 petition. Federal Land Bank (FLB) is a creditor with a claim of $114,000 se...
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CERTIFICATION TO THE DISTRICT COURT FOR ENTRY OF FINAL ORDER AND FOR WITHDRAWAL OF REFERENCE OR FURTHER DIRECTION WITH RESPECT TO RELATED PROCEEDING The debtor, a New York corporation, filed this action for one million dollars in damages for defendant’s alleged breach of contract to brew and bottle the debtor’s product, Newman’s Albany Amber Beer. Defendant, C. Schmidt and Sons, Inc. (“Schmid...
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OPINION Issue The issue is whether a decree of divorce, which ordered that an attached settlement agreement was accepted by the court and incorporated into and made a part of the decree, was sufficient to impose a lien upon the real property of one of the parties to the divorce, so that payment of the debt, for the benefit of the other party to the divorce, created by the settlement agreement, ...
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MEMORANDUM ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT Defendant, The American Insurance Company . (American), filed a motion for partial summary judgment on March 25, 1988. 1 By its motion American seeks dismissal of Counts II and IV of plaintiffs’ complaint, each of which prays for a determination of liability against American pursuant to Tenn.Code Ann. § 56-7-105(a) (...
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MEMORANDUM OF OPINION AND DECISION This matter is before the Court on Debt- or’s objection to the claim of The Department of the Treasury, Internal Revenue *39 Service (IRS). Issue respecting Debtor’s standing to prosecute this objection is waived. The parties stipulated to the following facts:— “1. This Court has subject matter jurisdiction to determine the validity of ...
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MEMORANDUM OPINION The debtors’ motion to avoid a judicial lien held by John R. Kleiser gives rise to a very narrow question of statutory interpretation. The parties have stipulated to the relevant facts, which are now summarized. *373 I. Two debtors, Steven H. Tomko and Carole Tomko (who are husband and wife) filed voluntary petitions in bankruptcy under chapter 11 on ...
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OPINION WARREN W. BENTZ, Bankruptcy Judge. Issue The issue is whether The Housing Authority of the City of Erie (“Erie Housing Authority” or “EHA”) may evict the debtors from their apartment in a low-income public housing project on account of repeated defaults in payment of rent, all of which were eventually cured, except the balance owing at the time of the filing of the wi...
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ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 12 PLAN Max Ronald Culbreth, Sr., Debtor, filed his Chapter 12 case with the Court on November 27, 1987. Debtor’s Chapter 12 plan came on for confirmation hearing on June 2, 1988. The United States of America on behalf of the Farmers Home Administration and on behalf of the Small Business Administration filed objections to confirmation on Apri...
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Introduction and Procedural Background This matter is before the Court on the plaintiff’s motion for summary judgment on its complaint to determine the dis-chargeability of certain debts of Ronald Wright. The original complaint of the plaintiff, the Federal Deposit Insurance Corporation (FDIC), alleged that the debt- or, Ronald W. Wright, while serving as a director, officer, and emplo...
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OPINION On June 25, 1987 the plaintiffs filed a complaint in this bankruptcy case (Adv.Pro. 187-0121) setting forth the following four claims for relief respectively: 1) a declaratory judgment that they, together with other parties, are the owners of a certain parcel of property located at 2080 77th Street, Brooklyn, New York (hereinafter “premises”); 2) damages for breach of co...
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MEMORANDUM ORDER The Trustee, represented by attorney H. James Magnuson, requests the debtors comply with the provisions of 11 U.S.C. § 521(2)(A) and (B). The debtors object on the grounds: 1. The trustee is trying to force the debtors to reaffirm a debt to M & I Bank of Adams-Friendship; 2. The debtor has already complied with § 521(2)(A) and (B); 3. The action of the trus...
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MEMORANDUM DECISION This matter is before the Court on the objection of The Federal Land Bank of Omaha (FLB-O) to confirmation of the debtors’ Chapter 12 plan. The debtors’ plan stated that the FLB-O’s first mortgage on real estate belonging to Bellman Farms, Inc., was subject to the county’s priority claim for real estate taxes. FLB-0 objected to this reduction in the amount of its secur...
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*178 ORDER The court has entered a memorandum opinion and an order concluding that this adversary proceeding should be remanded to state court. The question is how to proceed in light of Rule 9027(e). Rule 9027(e) makes the bankruptcy court’s decision on a motion to remand subject to de novo review by the district court. De novo review is not an appeal by a party to the proc...
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MEMORANDUM OPINION The matter being considered here is the Plaintiff’s motion for summary judgment. The underlying Complaint requests a determination that a debt is not dischargeable as having been based upon the Debtor’s alleged false pretenses, false representations or actual fraud, pursuant to 11 U.S.C. § 523(a)(2)(A). The Complaint also requests non-dischargeability based on the Debtor’s al...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the Unsecured Creditors’ Committee’s motion to compel the production of documents from Fred Cone, Jr. (“Cone”), and for an order directing the Debtor to waive the attorney-client privilege. A hearing on the motion was held April 23, 1988, and upon the evidence and arguments presented, the Court makes the following ...
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OPINION AND ORDER At San Antonio, Texas came on for hearing the Motion of Sentry Savings Association for Relief from Stay. After hearing, the court requested briefs from the parties. This opinion memorializes that decision, and constitutes its findings of fact and conclusions of law as well. FACTS The debtor in this case is a California limited partnership whose sole asset and ...
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OPINION AND ORDER On November 20, 1987 the law firm of Rodríguez-Ramón, Peña and Diaz filed an application for interim allowance of attorneys’ fees and expenses for services performed as attorneys for the debtor herein during the period from July 16, 1987 to November 16, 1987. The motion came before the court on January 22, 1988 for a hearing. The application was opposed by creditor Corpo...
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DECISION NATURE OF PROCEEDING This is a core proceeding under 28 U.S.C. § 157(b)(2)(G). It arises in the context of a motion for relief from the automatic stay by Consolidated Capital Properties (“Con-Cap”), a California limited partnership, with its prime focus upon § 362(d)(2) of the Bankruptcy Code. § 362(d)(1) has been asserted as an alternative ground for relief from stay. ...
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MEMORANDUM OPINION AND DECISION FACTS Prior to the filing of their chapter 13 petition, Ray D. and Melody A. Paul had two bank accounts, one established at Placer Savings and Loan and the other at the Bank of Alex Brown. On December 8, 1987, the California State Board of Equalization (Board) served notices of levy on the two banks pursuant to CaLRev. & Tax Code sec. 6703. 1 ...
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MEMORANDUM OPINION THIS MATTER comes before the Court on Debtor’s Motion for Use of Cash Collateral (Fil. #7, February 3, 1988) and the Resistance to it by the Adams Bank and Trust-Imperial (“Bank”) (Fil. # 21, February 22, 1988). An expedited hearing on this motion was heard March 15, 1988, the sole issue being whether a replacement lien on future crops is the indubitable equivalent of cash co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This involuntary case is before the Court upon a petition filed by Eugene P. Hern-don, Reba J. Barr and John T. Herndon seeking an order for relief pursuant to 11 U.S.C. § 303 against T.P. Herndon and Company, Inc. (“Debtor”). The petitioners submit that the debtor is generally not paying its debts as they become due. The debtor denies the allegations o...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on the debtors’ motion for turnover of income tax refund and the trustee’s related motion to set aside order allowing the debtors to *174claim the refund as exempt on May 11, 1988. [The trustee's motion to set aside was not formally set for hearing. However, this Court will also consider the trustee’s motion because it involves the same sub...
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ORDER This matter is before the Court on a Motion to Dismiss Complaint to Determine Dischargeability of Debt. The parties involved in this dispute, Frank Richards, Jr. (“defendant”), and John Wright, Dan Mun-dell and Charles Mundell (“plaintiffs”), each claim that the other is barred by collateral estoppel from relitigating the issues raised in the adversary complaint. The Court initially notes t...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on "March 30, 1988, on the Motion of Kansas Farm Bureau Life Insurance Company, Inc. for Adequate Protection and Order Granting Set-Off and Other Relief. The debtor appeared in person and through counsel, Stanley McAfee. The Kansas Farm Bureau Life Insurance Company, Inc. appeared through counsel, Edward F. Horne. FINDINGS OF ...
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DECISION AND ORDER Cowanlite Trading Co., Ltd. (“Cowan-lite”), a foreign corporation and a creditor of the Debtor, seeks an order reopening the Bankruptcy Proceeding of Christiane Luet-zow in order to assert that its claims against the Debtor are non-dischargeable pursuant to 11 U.S.C. § 523(a). Cowanlite asserts that: (i) it did not receive notice provided by Bankruptcy Rule 4007(c); (ii) the ...
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MEMORANDUM OF DECISION There are no disputed issues of fact in this case. When the debtor filed his Chapter 7 petition in 1982, he was a defendant in a state court suit brought by Bank of the Orient; this debt was duly scheduled. Two years later, long after the debtor’s discharge was entered, a codefendant in the state court action filed a cross-complaint against First Interstate Bank, which ha...
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MEMORANDUM THIS MATTER is before the Court on the debtor’s Application for Citation of Contempt (Fil. # 105) for violation of the automatic stay. There are two issues before the Court. The first issue is whether notice given by a lessor to a debtor as lessee for nonrenewal of a year-to-year lease of agricultural lands violates the automatic stay under 11 U.S.C. § 362. The second issue is whethe...
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MEMORANDUM THIS MATTER is before the Court for consideration of confirmation of the debtors’ proposed plan of reorganization under Chapter 12 of the Bankruptcy Code. Objections to the confirmation have been filed on behalf of Alliance National Bank & Trust Company (the “Bank”) and Burr and Clell Riesen (the “Riesens”). An objection by the Federal Land Bank of Omaha has been settled. A tri...
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MEMORANDUM OPINION Hill Financial Savings Association (“Hill”) has mounted a dual attack on Earl Ziegler’s (“debtor”) chapter 13 case by filing objections to confirmation and by requesting relief from the automatic stay. Because the keystone of debtor’s plan is a contingent, unliquidated lawsuit which is also debtor’s offer of adequate protection, we find that the funding of the plan is t...
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OPINION This matter came before the court on First Seneca Bank’s (“First Seneca”) objections to the plan of reorganization filed by Crane Automotive, Inc. (hereinafter “Crane” or “debtor”). An appropriate order confirming the plan over First Seneca’s objections was entered on December 11, 1987. This opinion constitutes this court’s findings of fact and conclusions of law as required ...
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MEMORANDUM OPINION Laundromat equipment leased by John T. Reice (“debtor”) is the subject of the in *678 stant motion for relief from the automatic stay filed by Landmark Leasing, Inc., (“movant”). We deny relief under 11 U.S. C. § 362(d)(2) because movant has failed to prove that this property is not necessary for an effective reorganization. Section 362(d)(1) provides no ba...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objections of the trustee and New Wood-mere Nursing Home, Inc. (Woodmere), a creditor, to the debtor’s claim of exemption in certain annuity contracts issued pursuant to the terms of a personal injury settlement agreement in favor of the debtor. An evidentiary hearing on the objections was held on April 27, 198...
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MEMORANDUM The trustee in bankruptcy has objected to claim no. 79 filed by the Tennessee Department of Revenue as an administrative expense claim. The claim is for taxes incurred by the debtor while its case was a *938 chapter 11 reorganization case, before it converted to a chapter 7 liquidation. The trustee argues that the claim should be disallowed because it was file...
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ORDER This Chapter 12 case has proceeded to the point of the filing of a plan which was set for hearing on confirmation. A creditor, Liberty Savings Bank, F.S.B. (“LSB”), filed objections to the plan at the confirmation hearing. While in its initial filing LSB set out a number of grounds for objection, only two remained at the time of the hearing. These were (1) the issue of eligibility for Cha...
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MEMORANDUM OPINION This matter came before the court upon James and Brenda Thompson’s Motion for Relief from Stay. The Thompsons purchased the debtors’ residence at a foreclosure sale for the sum of $17,000. They seek relief to continue a state court action to evict the debtors. The debtors contend that relief should not be granted because the sale was a fraudulent conveyance under 1...
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*424 FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court for trial in Miami upon a complaint filed by Radice Corporation, Crosswinds of Delray, Inc., Radice of Columbus, Inc., Radice Lands, Inc., Radice North Hills, Inc., and Radice of Savannah, Inc., to obtain a declaratory judgment and other relief determining the validity, priority and extent of liens and ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint by Computer Products, Inc., (the “creditor”) against Benjamin J. Nahabedian and Elizabeth E. Na-habedian (the “debtors”) to determine dis-chargeability of a state court judgment pursuant to 11 U.S.C. § 523(a)(4) and the Court having heard the testimony, examined the evidence presented, observed th...
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MEMORANDUM DECISION The plaintiff creditor seeks a determination of the validity, priority and extent of its lien against property of the chapter 11 debtor. The matter was tried on May 10. The facts are stipulated in Joint Exhibit A. The question of law is whether plaintiff is exempt under Fla.Stat. § 679.302(l)(e) from filing a financing statement in order to perfect its security interest ...
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*50 DECISION AND ORDER GRANTING RELIEF FROM AUTOMATIC STAY This matter is before the court upon the motion of the State of Ohio to obtain relief from the automatic stay provisions of 11 U.S.C. § 362. This court has jurisdiction pursuant to 28 U.S.C. § 1334 and the referral to this court by the standing order of reference in this district. This matter is a core proceeding under 28...
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MEMORANDUM OPINION This cause is before the Court upon the Trustee’s Amended Complaint to recover property of the estate by avoiding allegedly *794 improper transfers. Summary judgment was granted against certain defendants on January 6, 1988, and the Trustee has resolved the claims against certain other defendants by settlement. Consequently, at the time of trial, the only c...
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MEMORANDUM OPINION On February 13, 1987, Granada, Inc. (“Granada”) filed its Chapter 11 petition for relief. As of that date, Granada occupied offices on the first and second floors of the McCune Mansion (“Mansion”) located at 200 North Main Street, Salt Lake City, Utah. 1 Granada vacated a portion of the first and second floors of the Mansion on or about April 5, 1987. By May ...
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ORDER DETERMINING SECURED STATUS OF FLAGLER FEDERAL SAVINGS AND LOAN ASSOCIATION THIS CASE came before the Court on June 6, 1988, upon the Debtors’ Motion for *420 Order Determining Secured Status of Creditor, Flagler Federal Savings and Loan Association, and the Court, having examined the evidence presented, considered the arguments of counsel, and being otherwise duly advised in the premise...
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MEMORANDUM OF DECISION The debtor is an independent travel agency. Defendant Airlines Reporting Corporation (“ARC”) is a nationwide clearinghouse established by the airlines industry to give independent travel agents the ability to issue airline tickets. Prior to the debtor’s Chapter 11 filing, it had entered into ARC’S standard Agent Reporting Agreement whereby blank tickets are issued to trav...
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ORDER OF DISMISSAL AND MEMORANDUM DECISION THIS CAUSE came on to be heard for trial on June 21, and June 24, 1988, upon the filing of an Involuntary Chapter 7 Petition against the alleged debtor, General Trading, Inc. (“GTI”), a Florida corpora *218 tion, pursuant to 11 U.S.C. § 303(a). The Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of ...
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MEMORANDUM OF DECISION I. ISSUE In this core proceeding, see 28 U.S.C. § 157(b)(2)(H) (Supp. Ill 1985), the plaintiff-trustee, Thomas M. Germain, contends that a debtor’s pre-petition conveyance to his wife of his one-half interest in the family residence constituted a fraudulent transfer. Judy Kaczorowski, the defendant-transferee, defends on the ground that she gave the debtor reasonabl...
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MEMORANDUM OPINION This matter comes before the Court on the Motion filed by National Union Fire Insurance Company (“NUFIC”) seeking a determination that the instant adversary action is a non-core proceeding. The Motion also asks the Court to refer the case to the District Court so that a jury trial may be conducted. 1 Baker & Getty Securities, Inc. (“BGS”) applied for an NAS...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Bankruptcy Court on remand from the United States District Court. U.S. District Court Judge John L. Kane ordered this Court to make appropriate findings and ruling on two issues pertaining to this Chapter 11 Debtor’s rejection of a Collective Bargaining Agreement. The essence of the remand is to have this Court determine whether or...
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OPINION AND ORDER DISALLOWING GLENN L. RYLAND’S CLAIM FOR DIRECTORS AND OFFICERS LIABILITY INSURANCE Debtors object, under section 502(b) of Title 11, to Glenn L. Ryland’s (“Ryland”) $10,000,000 claim for directors and officers liability insurance coverage which Ryland alleges Frontier Airlines, Inc. agreed to provide him. After consideration of Ry-land’s Proof of Claim, the briefs and exhibits...
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ORDER This matter having come on for hearing upon the motion of Anchor Savings Bank, F.S.B. for change of venue; due notice of said hearing having been given; and John S. Bowman, Romaine S. Scott, III, and W. Joseph McCorekle, Jr. having appeared for the debtor; and Mark D. Hildreth and George W. Finkbohner having appeared for Anchor Savings Bank; and arguments and evidence having been presente...
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MEMORANDUM OPINION This matter comes before the Court on the Debtors’ Objection to a Proof of Claim filed by THE UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE (“IRS”). The Debtors filed a Petition for Relief under Chapter 13 of Title 11 of the United States Code on June 8, 1982. On November 4, 1982, the Debtors’ Plan for Reorganization was confirmed, which included full payment of an...
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MEMORANDUM DECISION FACTS Through a series of letters, Jonas Enterprises, Inc. (Lessor) and the debtor entered into a month-to-month lease of certain commercial real property located in California. The debtor filed a chapter 11 bankruptcy petition on January 20, 1988. On March 4, 1988, the Lessor filed a motion to lift stay based in part upon the debtor’s failure to make any post-petition ren...
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DECISION AND ORDER SUSTAINING MOTION OF FORD MOTOR CREDIT COMPANY FOR SUMMARY JUDGMENT PROCEDURAL POSTURE On August 21, 1987 Michelle Sutton, a chapter 13 debtor, filed a complaint against defendnat Ford Motor Credit Company alleging a violation of the automatic stay provisions of Section 362 of the Bankruptcy Code by defendant and requesting the return of an automobile previously repossessed...
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ORDER This matter having come on for hearing upon the Debtors’ objection to the claim of American Investment Bank, N.A., being Claim No. 20 in the amount of $31,042.62; due notice of said hearing having been given; and Lionel Williams having appeared for the debtors and Stephen Windom having appeared for American Investment Bank, N.A.; and arguments and evidence having been presented; now...
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ORDER This matter came on for hearing upon notice on June 14, 1988 on the proofs of claim and application of Roger W. Moister, Jr. for allowance of compensation and expenses and the objections thereto. This matter is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(B). The court’s findings and conclusions are as follows: On March 10, 1988, Mr. Moister filed a proof of claim seeking a...
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OPINION ■ This matter comes before the Court upon a motion for summary judgment filed by plaintiff, Nicholas Laganella and P.T. & L. Construction Co., Inc., asserting the judgment entered in the state court of New Jersey against the debtor/defendant is non-dischargeable pursuant to Bankruptcy Section 523(a)(6) of the United States Bankruptcy Code. An action raising the dis-chargeability o...
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MEMORANDUM OPINION Pursuant to 11 U.S.C. § 1112, the debtor, Smith and Son Septic and Sanitation Ser *377 vice (S & SS & SS) filed a motion to dismiss its chapter 11 case. Because of its failure to pay the quarterly fees required under 28 U.S.C. § 1930(a)(6), the United States trustee (UST) objected to the debtor’s motion. The matter was taken under advisement because of the ...
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ORDER This matter comes before the Court on debtor’s complaint to enjoin a wage garnishment issued by an Oklahoma state court for attorney’s fees in a child support case. James Lee Nelson filed his Chapter 13 case in February, 1988. On April 22, 1988, this Court heard argument and denied the injunction in light of the Fourth Circuit’s ruling in Caswell v. Lang, 757 F.2d 608 (1985), this Court...
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MEMORANDUM OPINION Debtors Eugene and Kathleen Laeupple filed their petition for relief under Chapter 13 on November 19, 1987. That proceeding was converted to a Chapter 7 proceeding on February 16, 1988. Arthur E. Feder-man has been appointed the Trustee. Eugene Laeupple had engaged in business as a general contractor since 1957 and his primary source of financing was the American Bank, the Tr...
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MEMORANDUM On or about November 13, 1987, Bank Five for Savings (“Bank Five”), a secured creditor, filed three claims against the Debtors in case nos. 87-10459 and 87-10550, as well as case no. 87-10548. Bank Five recently withdrew, without prejudice, the claims filed in case nos. 87-10549 and 87-1550. Bank Five claims it is owed, at least as of November 13, 1987, $2,179,360. The Debtors and th...
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MEMORANDUM OPINION INTRODUCTION On March 21, 1988, the Debtors filed their voluntary Chapter 7 petition. On April 21, 1988, Debtors filed a motion to avoid a lien by the ITT/Thorp Corporation who claimed a security interest in certain items of personal property. The Debtors alleged that such lien impaired their exemptions under 11 U.S.C. § 522(f)(2)(A) alleging that such a lien was a non-poss...
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88 B.R. 686 (1988) In re Preston BURCH, Jr., Debtor. In re Delores MORTON, a/k/a Delores Burch, Debtor. Preston BURCH, Jr. and Delores Morton, a/k/a Delores Burch, Plaintiffs, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, and Samuel R. Pierce, Jr., Defendants. Bankruptcy Nos. 82-05835S, 83-02646K, Adv. No. 83-2067S. United States Bankruptcy Court, E.D. Pennsylvania. July 8, 1988. *687 *688 Autherine ...
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MEMORANDUM OPINION Debtor and creditor have submitted this matter to the Court on Stipulation. Their dispute focuses on which, if any, costs of a foreclosure, aborted by this bankruptcy proceeding, may be added to the principal balance due on a promissory note secured by a deed of trust on debtor’s residence, Creditor is oversecured and thus by virtue of 11 U.S.C. § 506, is entitled to collect in...
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MEMORANDUM OPINION The creditor here, Wanda Gerken, has brought this action in the Bankruptcy Court, although she has not named debtor or trustee in the action. Nevertheless, it is clear that the controversy arose under Title 11 because her complaint is based on § 548 of the Bankruptcy Code. (§ 548 is not listed in the complaint but is specified on the adversary proceeding cover sheet). A...
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MEMORANDUM OPINION Before the Court are motions filed on behalf of the alleged involuntary Debtors 1 requesting sanctions against John T. Tier-ney, III, an attorney appearing pro se (hereinafter petitioning creditor or Tierney) pursuant to Bankruptcy Rule 9011 and 11 U.S.C. § 303(i). In the Memorandum Opinion dismissing the involuntary cases which was previously file...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon a Motion for Relief from Automatic Stay filed by Western Mortgage Loan Corporation (“Western”). The evidence showed that on November 4, 1987, Western received a Public Trustee’s Certificate of Purchase as a result of a foreclosure of its Deed of Trust on the Debtors’ residential real property (Plaintiff’s Exhibit A) in return for...
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OPINION AND ORDER The debtors previously filed a Chapter 7 proceeding and received a discharge from all their dischargeable debts. The debtors then filed a Chapter 13 proceeding, proposing to pay their unsecured creditors 4%. A creditor, May Department Stores, Inc., filed an objection to the confirmation on the grounds the Chapter 13 proceeding was not filed in good faith in that the debtors ha...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE ABOVE-STYLED adversary proceeding came before this Court for final evidentiary hearing on December 31, 1987, at which time the parties submitted stipulated facts. Plaintiff, Topcon Instrument Corporation of America (Topcon), requests this Court to require Defendant, NCNB Financial Services (NCNB Financial), to marshall its co...
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ORDER After due notice, a confirmation hearing was held on August 4, 1987, and October 15,1987, on the Debtors’ Amended Chapter 12 Plan, together with objections to the Plan filed by the Richland Federal Credit Union (RFCU), the American State Bank and Trust of Williston, N.D. (Bank), the Small Business Administration (SBA), the Navistar Financial Corporation (Navistar), the John Hancock ...
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ORDER ON MOTION FOR RELIEF FROM STAY OR ADEQUATE PROTECTION THIS CAUSE came on for hearing upon a Motion for Relief from the Automatic Stay or Adequate Protection filed by Royal Palm Savings Association (Royal Palm). Royal Palm seeks relief from the automatic stay under both § 362(d)(1) and § 362(d)(2) of the Bankruptcy Code in order to foreclose a mortgage on real property owned by the Debtor....
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ORDER ON APPLICATION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE AND OBJECTIONS TO PAYMENT OF SAME This is a Chapter 11 case in which the plan of reorganization has yet to be confirmed. The matter under consideration is an Application for Allowance of Administrative Expense filed by Elias Moran Aro-semena (Dr. Arosemena) as Curador of Florida Peach Corporation of America, International Division and Ob...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case, and the matter under consideration is an adversary proceeding filed by Joseph and Ann Marie Bologna (Plaintiffs) against the Debtors, John and Mary Ann Cutignola (the Debtors). The Plaintiffs’ complaint sounds in three counts, all of which seek a judgment denying the Debtors their discharge pursuant to §...
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ORDER ON RENEWED CROSS MOTIONS FOR SUMMARY JUDGMENT AND MOTION FOR REVISION OF INTERLOCUTORY ORDER THIS IS a Chapter 11 case and the matters under consideration are renewed cross motions for summary judgment. The motions are filed by successor Trustees Robert Venney and Jeffrey Warren, who replaced Joseph Gassen, the Trustee originally appointed in this Chapter 11 case. The cross motion i...
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MEMORANDUM OPINION Debtors signed a note dated August 26, 1987 giving Kentucky Finance Company a purchase money security interest (pmsi) in a sofa sleeper and two chairs in consideration for a loan of $1,227.00. On October 8, 1987, Debtors obtained an additional loan from Kentucky Finance Company for $1,296.00. These two loans were combined on February 9, 1988, evidenced by a new note and secur...
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MEMORANDUM OPINION REGARDING SECOND NATIONAL BANK’S MOTION FOR RELIEF FROM STAY AND OBJECTION TO CONFIRMATION OF PLAN The underlying question in these contested matters is whether, at the time the debtor filed its Chapter 11 petition for relief, it owned any interest in the lands in question. The parties have stipulated to the facts, so these contested matters present solely issues of law. On...
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ORDER ON MOTION TO QUASH WRIT OF EXECUTION AND MOTION TO STAY PENDING APPEAL THIS IS a Chapter 7 liquidation case and the matter under consideration are two Motions filed by The Chase Manhattan Bank, Plaintiff in the above-captioned adversary proceeding. One is a Motion to Quash Writ of Execution; the other, a Motion to Stay Pending Appeal. The events leading up to these matters arose in this adve...
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ORDER ON DEBTOR’S OBJECTION TO CLAIM THE MATTER under consideration in this Chapter 11 case involves the Debtor’s Objection to the claim of Marie McMurry who filed her proof of claim in this case in the amount of $25,867.96 plus interest. At the duly scheduled final evidentiary hearing, this Court reviewed the Objection and finds the pertinent facts helpful to a resolution of this matter ...
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Pursuant to a decision dated April 30, 1987, this court granted the Chapter 7 trustee’s partial summary judgment motion and ruled that an agreement between the debtor and the defendant, C.P.Q. Color-chrome Corp., a division of Coppinger Color Lab, Inc. (“Colorchrome”), which agreement was entered into after the debtor filed its Chapter 11 petition and before the case was converted for liquidation...
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MEMORANDUM AND ORDER ON REQUESTS FOR PAYMENT OF ADMINISTRATIVE EXPENSE I. ISSUE AND BACKGROUND At issue in this proceeding is whether sales of realty by a chapter 7 trustee liqui *776 dating a debtor’s estate are subject to state-imposed real estate conveyance taxes. The underlying facts can be briefly stated. On August 3, 1987, the court entered an order for r...
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MEMORANDUM OPINION AND ORDER This Chapter 7 ease is before the Court for a review of the attorney fees and expenses disbursed by Mr. C. George New-bern, Trustee, on December 30,1983 to Mr. John T. Croley, attorney for Trustee. This Chapter 7 case was assigned to the undersigned Judge upon the retirement of Judge Algie M. Moseley on March 31, 1986. In 1982, Mr. W.E. Ross and Mrs. Eliz...
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MEMORANDUM OPINION This matter comes before the court on the debtor’s motion to invalidate the judicial lien of Nike, Inc. (Nike) on the debtor’s residence located at 4533 Corona St., Eugene, Oregon (the home). A hearing was held on November 4, 1987, where the court heard testimony, the argument of counsel and established a post-hearing briefing schedule. The parties’ briefs have been sub...
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MEMORANDUM DECISION At issue is whether United States government pension payments received by the debtors are exempt under California’s exemption statutes. Also at issue is whether debtors’ IRA accounts are exempt. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. §§ 1334 and 157(b)(1), and General Order No. 312-D of the United States District Court, Southern Dist...
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MEMORANDUM OP OPINION AND ORDER This matter is before the Court upon the Complaint of Richard A. Baumgart, Trustee in Bankruptcy (Trustee), to recover a postpetition transfer and to recover preferences from the Defendant National City Bank (NCB). To resolve this adversary proceeding, the parties have submitted the matter on their respective briefs.1 Pursuant to Rule 7052, Bankr.Rules, the followin...
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MEMORANDUM OPINION AND ORDER DENYING CREDITOR’S MOTION TO FILE LATE CLAIM Central Area Telephone Credit Union (“Central”) has filed a motion requesting *121 the court to deem its proof of claim as timely filed in this Chapter 13 proceeding. For the reasons stated below, the motion is denied. FACTUAL BACKGROUND The relevant facts surrounding this matter are uncontest...
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DECISION This adversary proceeding was commenced by North Shore Savings and Loan to request a denial of the discharge of the debtors’ obligation to North Shore under 11 U.S.C. § 523(a)(6) and under 11 U.S.C. § 523(a)(2)(B). Trial was held on April 20, 1988. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). For the reasons stated below, a portion of the debt of David R. Jones to No...
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OPINION This matter is before the Court on the Trustee’s complaint for the turnover of a promissory note from Martin and Debora Wood which is secured by a deed of trust relating to certain property in Pima County, Arizona. Payments under the note are made to Stewart Title & Trust of Tuscon as escrow agent, and Stewart in turn forwards the payments to the Debtors. Eagle Bank of Charleston ...
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MEMORANDUM OPINION This matter comes before the court on plaintiffs and defendant, Southwestern Motors, Inc.’s (Southwestern’s) cross-motions for summary judgment. This is a preference action initiated by the trustee to avoid the defendants’ security interest in an automobile. The parties’ affidavits, exhibits and memoranda reveal the following undisputed facts: 1. On or before April 15, 1986, Da...
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OPINION This matter is before the Court on a Petition for Reclamation (Lift of Automatic Stay) filed by Plaintiff American Way Rentals against the Debtor George Fogel-song, and the Debtor’s Counter-Petition for Contempt for Violation of the Automatic Stay. A hearing was held on January 27, 1988. The relevant facts are as follows: The Plaintiff is in the “rent to own” furniture business. On va...
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MEMORANDUM OPINION The issue before me is whether there is a limitation on the number of IRA accounts a married couple filing a joint petition may claim as exempt. JURISDICTION This court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing the district court...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of Alice C. Dark (Debtor) for a hardship discharge. Upon due notice to all parties entitled thereto, the matter was heard and, submitted. Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions: I. This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(A) and (0),...
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MEMORANDUM OPINION ON PLAN EXCLUSIVITY EXTENSION This chapter 11 case was commenced by a voluntary petition filed by the debtor on January 28, 1988. Accordingly, the debt- or’s statutory 120-day exclusive, period within which to file a plan of reorganization under 1121(b) of the Bankruptcy Code was scheduled to expire on May 27, 1988. On April 28, 1988 the debtor filed a motion for an eig...
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MEMORANDUM OPINION AND ORDER ON MOTIONS FOR RELIEF FROM STAY, FOR ADEQUATE PROTECTION AND FOR ASSUMPTION OF LEASE CASE HISTORY These proceedings are before the court on related motions of the Debtor, Memphis-Friday’s Associates, to assume a commercial lease on property which houses its restaurant establishment known as T.G.I. Friday’s; of the lessor, Overton Square Partners (hereinaf...
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MEMORANDUM- OF OPINION AND ORDER This matter is before the Court upon the Complaint of the Trustee objecting to discharge of the above-styled Debtors. A trial was held with due notice having been made upon all parties entitled thereto. After reviewing the testimony, admitted evidence, and the record of this matter, the following constitutes the Court’s findings and conclusions pursuant to Rule ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On March 2, 1988 and April 12, 1988, this Court held hearings on motions filed by the debtor pursuant to 11 U.S.C. § 365 to assume five non-residential land leases with EastGroup Properties, Ltd. (“EastGroup”). The lessor opposes the motions and contends that a different entity, Southern Motel Associates, Ltd. (“SMA”), is the true tenant under the leases....
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NOTICE OF INTENDED DECISION On November 30, 1987, Missouri Flats Associates, a California limited partnership, filed a voluntary petition for bankruptcy under chapter eleven in the United States Bankruptcy Court for the Eastern District of California. A statement of the debtor’s financial affairs was filed with the court on January 7, 1988 by debtor’s attorney. The statement named Robert ...
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DECISION The debtors in this Chapter 13 bankruptcy have moved for discharge because all payments to creditors who filed claims have been completed before the 38 month term of their confirmed plan. Trans-america Financial Services, a second mortgage holder on the debtors’ former residence, objects. FACTS The debtors’ plan provided for 100% payment to all unsecured creditors. Regu...
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ORDER ON MOTION TO LIFT STAY A telephonic hearing upon debtors’ and trustee’s resistances to a motion to lift stay filed on behalf of the Small Business Administration (SBA) was held before this court in Des Moines, Iowa. Anita L. Sho-deen appeared on behalf of the debtors. David Carter appeared on behalf of the Chapter 7 trustee, Donald F. Neiman. Linda R. Reade, Assistant U.S. Attorney,...
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MEMORANDUM OPINION Presently before the Court is Debtor’s Objection to the Claim of the Internal Revenue Service (“IRS”), and a Complaint to Determine Tax Liability of Debtor and Phillip P. Quattrone. 1 Debtor disputes its identification, for tax assessment purposes, as a “responsible person” of the United Dairy Farmers Cooperative Association (“UDF”). Alternatively, Debtor c...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW These adversary proceedings are before the Court upon complaints filed by Louis Lowin, the Post-Confirmation Administrator of The Securities Groups, The Securities Group, The Securities Group 1980 and The Monetary Group. The complaints are predicated upon breaches of fiduciary duty, mis-appropriation of partnership opportunities and property, conver...
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DECISION The trustee has asked the court, pursuant to Bankruptcy Rule 9019, to approve the proposed settlement of a civil action now pending in the U.S. District Court for this district, Case No. 86-C-0793, entitled “Gerald W. Langley, Marcia A. Langley and David J. Matyas, in his capacity as United States Bankruptcy Trustee, Plaintiffs, vs. Suring State Bank n/k/a American Bank of Wisconsin, Tho...
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ORDER ON APPLICATION FOR RELIEF FROM STAY This matter, which is now before the Court, involves the consideration of the interplay between the interests of the State of Utah (“Utah”) in protecting its environment and populace, and the public policy expressed by Congress in the enactment of the Bankruptcy Code which enables debtors to seek a fresh start by filing a petition in this Court. U...
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OPINION AND ORDER This matter comes before this Court by motion of Robert Doub seeking redistribution of payments already made to creditors so that the ends of justice and equity may be served. The facts leading to this motion are as follows. In August, 1986, Robert Doub (Doub) temporarily entrusted his 1985 Volkswagen Scirroco (the car) to Tamara Sue Crotts. Title to the car was tra...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for consideration with notice to all parties in interest upon cross Motions for Summary Judgment filed by CA Leasing Service Corporation (CA Leasing), the Plaintiff in this adversary proceeding and by Lyle Charles, the Trustee in this Chapter 11 case. It is the contention of both parties that there are no genuine issues of material ...
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MEMORANDUM OPINION AND ORDER The matters before the court are an adversary proceeding filed on February 23, 1988, by James Oliver Carter, the chapter 7 trustee, against HCL Leasing Corporation (“HCL”) which seeks to avoid a judgment lien in favor of HCL and a motion filed by HCL on February 28,1988, which asks that the automatic stay be lifted to allow HCL to pursue a state court action to set ...
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ORDER Before the court is plaintiffs motion for summary judgment. Plaintiff, Robert A. Burroughs, is a judgment creditor of debtors. Plaintiff alleges that the judgment debt is nondischargeable pursuant to 11 U.S.C. Section 523(a)(2)(A). FINDINGS OF FACT The subject debt arose from a judgment for plaintiff against debtors after a jury trial in the State Court of DeKalb County, G...
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Semel, Patrusky & Buchsbaum (“SP & B”), as counsel to certain merchant seamen who have filed claims for damages against United States Lines, Inc., seeks an order, apparently pursuant to 11 U.S.C. § 503(b)(3) and (4) (1986), awarding them compensation of $84,720 as attorneys for creditors who have made a substantial contribution to the Bankruptcy case of United States Lines’ affiliate, McLean In...
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ORDER This matter came on for trial on February 29, 1988 on Carlisle Corporation’s (“Carlisle”) Chapter 7 involuntary petition against J.B. Lovell Corporation (“Lovell”) filed February 4, 1987. For the reasons stated herein the court finds that there are no remaining issues to be tried and that an order for relief should be entered against Lovell. On February 4, 1987, Carlisle filed ...
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Memorandum Opinion On Section 1109 And Rule 2018 Motions This chapter 11 case is presently before the court upon five motions for determination of party in interest status and/or for intervention. The movants are: (1) the State of New Hampshire through its Attorney General; (2) the State of Connecticut through its Attorney General, and Connecticut’s Department of Public Utility Control (D...
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ORDER This matter is before the Court on two motions filed by the debtor. In the first, debtor moves the Court for an order allowing the payment of $120,000 in broker commissions to Clifton, Gardiner & Associates, Inc. (Clifton, Gardiner) as an administrative expense pursuant to 11 U.S.C. § 503(b)(1)(A). In the second, debtor seeks to assume the Clifton, Gardiner listing agreement as an e...
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MEMORANDUM OPINION AND ORDER I STATEMENT OP PROCEEDINGS This Chapter 12 case came on for joint hearing on March 17, 1988 pursuant to Order of Court February 19, 1988, on the following contested matters: 1.Objection by Federal Land Bank of Louisville (“FLB”) filed July 14, 1987, to Debtor’s Plan of Reorganization filed June 16, 1987. 2. Motion by Debtor filed June 24, 1...
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MEMORANDUM On April 30, 1987, the debtors filed a chapter 13 bankruptcy petition. Among their creditors was Commonwealth Mortgage Company of America (hereinafter referred to as “Commonwealth”) which held a mortgage against the debtors’ residence. On May 19, 1987, Commonwealth filed a secured proof of claim. In response, the debtors commenced an adversary proceeding which, in essence, obje...
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OPINION On October 5, 1987, Frank Cardell, Gail Cardell, his wife, and FEC, Inc. each filed voluntary petitions for relief under Chapter 11 of the Bankruptcy Code. On October 23, 1987, Cardell & Associates, Inc. (“Associates”), also filed a petition for relief under Chapter 11 of the Bankruptcy Code. FEC, Inc. and Associates are wholly owned by Frank Cardell. By Order dated October 23, 19...
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OPINION AND ORDER The debtor, Pocono Airlines, Inc. (hereinafter “Debtor”) commenced this proceeding requesting this Court to vacate an earlier Order regarding the use of cash collateral entered into between the debtor and Northeastern Bank of Pennsylvania, N.A. (hereinafter “Bank”). For the reasons provided herein, we find that the Bank has properly perfected its security interest in the...
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OPINION The Court considers the Trustee’s motion for an order directing the debtor to turnover funds held by the debtor in two Individual Retirement Accounts. This motion presents two issues for the Court to determine. The first issue is whether these Individual Retirement Accounts constitute property of the estate under 11 U.S.C. § 541(a) or excluded by 11 U.S.C. § 541(c)(2). Upon a find...
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MEMORANDUM OPINION Morysville Body Works, Inc. (“debtor”) has filed a “Petition to Stay” the Interna] Revenue Service (“I.R.S.”) from collecting from debtor’s president and sole shareholder, Ronald G. Updegrave (“Updegrave”) the 100% penalty provided by 28 U.S.C. § 6672 arising from debtor’s failure to pay *441 certain taxes. We lack subject matter jurisdiction and must deny ...
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MEMORANDUM DECISION FACTS The debtor filed a petition for relief under chapter 7, along with her statements and schedules, on March 2, 1987. The first meeting of creditors was set for April 3, 1987, with the bar date for the filing of complaints objecting to discharge and complaints pursuant to section 523(c) set for June 2, 1987. The bar date for filing proofs of claim was set for 90 days af...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This matter is before the Court on the Trustee’s Objection To The Debtor’s Schedule Of Exempt Property (hereinafter the “Trustee’s Objection”). The issues before the Court involve the extent to which a debtor may claim as exempt property a mobile home which has not been converted to realty. JURISDICTION This Court has jurisdiction over the parties...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION TO TRUSTEE’S PROPOSED DISTRIBUTION OF SALE PROCEEDS At issue is whether a creditor with two mortgages may compel the allocation of sale proceeds to maximize payment of its claims at the expense of a lienholder with an intervening security interest. The following relevant facts are undisputed. 1 I On November 13,1986, the debt...
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MEMORANDUM OPINION Presently before the court is a motion filed by debtor, BRI Corporation, d/b/a Jo Harper, The Great Factory Store and GFS for Men (“debtor”), to reduce the proof of claim filed by O/H Sportswear, Inc. (“O/H”) from $67,528.41 to $45,691.41. O/H filed an objection to debtor’s motion, contending that it has priority to the proceeds from the clothing it supplied to debt- or...
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OPINION The debtors in this adversary proceeding seek, pursuant to 11 U.S.C. § 548, to set aside a sheriffs sale of their residence. Section 548 provides for the avoidance and setting aside of any transfer within one year of the filing of a petition in bankruptcy where the debtor received less than a reasonably equivalent value for the transfer. 11 U.S.C. § 548(a)(2)(A). 1 Al...
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MEMORANDUM The instant adversary proceeding is, in substance, a Proof of Claim filed by the *391Plaintiff, the law firm of DECHERT PRICE & RHOADS (hereinafter referred to as “Dechert”), to which the Debtor, DIRECT SATELLITE COMMUNICATIONS, INC. (hereinafter referred to as “the Debt- or”), has filed a counterclaim. It is, therefore, a “core proceeding” such as is described by 28 U.S.C. § 157(b)(2)...
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MEMORANDUM OPINION AND ORDER This matter came before the court on John Deere Company’s motion to dismiss the Trustee’s complaint seeking a determination that John Deere is not entitled to insurance proceeds by virtue of its perfected security interest in a combine that was destroyed by fire. The parties subsequently treated that motion as one for summary judgment. John Deere is the assignee of a ...
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BENCH DECISION REGARDING DOCKET #’s 441 and 448 The issue before the court is whether a proposed settlement on an objection to a proof of claim should be approved. Century objected to the claim of Latham Four on the ground that its claim exceeded the dollar amount permitted under 11 U.S.C. § 502(b)(6). Century and Latham have reached an agreement which reduces the amount of Latham’s claim from $14...
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BENCH DECISION AND ORDER JUNE 7, 1988 The debtors are seeking a reduction in the rate of interest claimed by Community Federal Savings and Loan Association on its default judgment entered in a foreclosure action against debtors’ principal residence on July 1, 1987. Community argues that its rights cannot be modified under § 1322(b)(2) of title 11, United States Code and that it is entitled to the ...
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MEMORANDUM AND ORDER This matter is before the Court on Illinois Guarantee Savings & Loan Association’s (hereafter movant) Motion Seeking Supplementation and Modification of Order Approving and Confirming Report of Sale. The facts of this matter are not in dispute. On February 6, 1988, pursuant to movant’s request, certain real estate owned by debtors was offered for sale by the trustee a...
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MEMORANDUM OF DECISION I. INTRODUCTION Steven A. Schwaber, the trustee in this Chapter 7 Bankruptcy Case (“Trustee”), filed a motion requesting a preliminary injunction compelling the turnover of proceeds from the sale of residential property located at 225 South Rodeo Drive, Beverly Hills, California 90212 (“the Property”) as well as other injunctive relief. The relief is sought aga...
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DECISION AND ORDER ON DEBTOR’S MOTION TO ASSUME ITS LEASE This is one of those unfortunate cases where a debtor, through inattention to the mandates of the Bankruptcy Code (the Code) respecting non-residential real property leases, possibly stands to lose its most valuable asset to a lessor whose rent has virtually always been timely paid, who has suffered no harm from the existence of th...
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MEMORANDUM OPINION Presently before the Court is Plaintiff’s Complaint for Determination of Discharge-ability of Debt pursuant to § 523(a)(2) and (a)(6). 1 Specifically, the Plaintiff alleges that the Debtor committed fraud in the tender of post-dated checks for goods provided on a C.O.D. basis and that on the date the checks were tendered, as well as the date wherein they were...
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MEMORANDUM OPINION A hearing was held on May 4, 1988, to determine Debtors’ Motion to Avoid Lien of creditor, ITT, on certain items of Debtors’ property given as security for a loan. The Bankruptcy Court held: (1) Debtors’ property subject to ITT’s security interest was properly exemptible under 11 U.S.C. § 522(f) as household goods with the exception of guns, a swimming pool, and sporting kniv...
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OPINION This matter is before the court on cross-motions for summary judgment. The court has jurisdiction pursuant to an Order of Reference entered by the United States District Court dated July 23, 1984 as provided in 28 U.S.C. § 157. This is a “core proceeding” as defined in 28 U.S.C. § 157(b)(2) and the judgment of this court can be appealed to the United States District Court for the ...
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DECISION AND ORDER When Wedtech Corporation (“Wedtech” or “Plaintiff”) filed its petition under Chapter 11 of the Bankruptcy Code, 11 U.S.C. § 1101 et seq. (1986), on December 15, 1986, it brought with it almost unmatched charges of criminality by its officers, directors, consultants and various former and current public officials. Since then, some of these people have been con...
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MEMORANDUM OPINION AND ORDER Grant Food Products, Inc., a Chapter 11 debtor, filed its petition on July 23, 1987. At that time it was in possession of premises at 340 South Market Street, Wilmington, under a lease dated December 10, 1985, as amended in January 1987. Grant made no rental payments after June 1, 1987, did not keep in force insurance required under the lease as amended and permitte...
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MEMORANDUM OPINION INTRODUCTION Don Austin Balch and Mary Ann Balch, his wife, filed their Chapter 7 bankruptcy petition on December 7, 1987. On March 2, 1988, Flora Bank & Trust (Bank) filed its adversary complaint against Don Austin Balch seeking to deny dischargeability of a debt in the principal amount of $8,857.60 plus accrued interest of $2,159.85 as of December 7, 1987, pursuant to 11 U.S....
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ORDER REGARDING MOTION TO EXTEND TIME The Official Unsecured Creditor Committee (“Committee”) filed a motion pursuant to Bankruptcy Rule 4007(c) for an extension of time in which any unsecured creditor may bring a complaint seeking an exception to discharge pursuant to § 523(c). The Debtor filed an objection. The matter was heard and taken under advisement. A motion requesting an ext...
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MEMORANDUM OPINION This matter comes before the Court on the stipulations of facts submitted to the Court by the plaintiff and Trustee, John F. Ames, (“Trustee”) and defendant, Rufus Parke Custis, III (“Custis”). FINDINGS OF FACT Custis and his now deceased spouse, Ann Shreeves Custis, filed a joint Chapter 7 bankruptcy petition with this Court on July 29, 1986. A meeting of creditors was h...
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MEMORANDUM DECISION Movant Charles Jeffrey seeks an order validating his purchase of the Debtor’s property at a postpetition foreclosure sale under Bankruptcy Code § 549(c), 11 U.S.C. § 549(c), or granting retroactive relief from the automatic stay of Bankruptcy Code § 362(a). 11 U.S.C. § 362(a). For the reasons set forth below, the motion is denied. FACTS Debtor Frances Powers (“Powers”) o...
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MEMORANDUM OPINION This matter comes before the Court upon a request made by the parties for a consolidated hearing on the above-styled matters. Accordingly, the Court has before it 1) the motion of First National Bank of Louisville (“First National” or “the bank”) requesting relief from the stay imposed under 11 U.S. C. § 362 upon the filing of a bankruptcy petition by the debtor herein,...
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MEMORANDUM OPINION On the 3rd day of May, 1988, the Court held a hearing on John R. Sholund’s Motion to Modify Stay to Continue State Court Suit. After hearing the evidence and argument of counsel and considering the pleadings and briefs filed by the parties, the Court enters this opinion as its findings of fact and conclusions of law. The facts, while complicated legally, are fairly...
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MEMORANDUM OPINION Before the Court is the Motion to Amend Order filed by Heckathorn Construction Co., Inc. (Heckathorn) in the above contested matters. Heckathorn has asked the Court to amend its Order entered March 30, 1988. On March 30, 1988, this Court ordered, inter alia, that First National Bank of Springdale (First National) did not waive and is entitled to exercise its ...
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ORDER On Barrett-Crofoot, Inc.’s (“Barrett-Cro-foot”) motion to dismiss, the court determines that a general partner who has filed for bankruptcy protection under Chapter 11 of the Bankruptcy Code may file an involuntary petition against its partnership. On January 13, 1988, the court held a hearing on the motion which requests the court to dismiss the involuntary bankruptcy petition file...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER having come on for trial on a Complaint to Determine Discharge: *129Dahil M. Goss, Assistant United States Attorney, appearing for plaintiff; Jeffrey Anderson of Johnson and Anderson, Little-ton, Colorado, appearing for debtors/defendants. The court having considered the parties’ stipulation as to certain facts, the testimony and exhibits receive...
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MEMORANDUM OPINION AND ORDER Carroll Byron Powell was in the jewelry business. He owned 90% of two eompa-nies, Fine Jewelry and Fine Diamond. On December 16, 1986, both he and his companies filed bankruptcy under Chapter 7. Powell and his companies had been longtime customers of Central Park Bank and had a credit line secured by inventory, equipment, and receivables. This bank was ac...
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MEMORANDUM OPINION FINDINGS OF FACT This matter comes before the Court on the application of Williams, Mullen, Christian & Dobbins, P.C., (“Applicant”) as counsel for the Official Committee of Unsecured Creditors for compensation in the amount of $3,212.50 1 in attorneys’ fees and $159.66 in out-of-pocket expenses incurred by the firm. The Applicant was employed under 11 U...
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MEMORANDUM-OPINION This case is before the Court on the parties’ crossmotions for summary judgment pursuant to Fed.R.Civ.Pro. 56 and Fed.R.Bankr.Pro. 7056. Both parties’ briefs in support of their position have been filed with the Court and reviewed. For the reasons set forth below, we sustain the plaintiffs’ motion for summary judgment and overrule the defendants’ motion for summary judg...
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EN BANC. MEMORANDUM OPINION INTRODUCTION AND FINDINGS OF FACT The Court is confronted with a challenge by the debtors in this Chapter 13 case to the Court’s authority to require by local rule a particular form of chapter 13 plan. At the outset, the Court must express its serious concern over what appears to be the debtors’ underlying motivation in contesting the rule. It appears from the argument...
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MEMORANDUM DECISION AND ORDER RE: OBJECTION TO EXEMPTION On April 19, 1988, Richard M. Kennedy, Trustee of the Estate of David T. Eith, and Edward J. Stanley, Trustee of the Estates of David T. Eith, dba Industrial Medical Clinic, Airport Medical Service, Inc. and Pawaa Medical Laboratory, Inc. (both being hereafter jointly referred to as “Trustees”), filed Trustees’ Objection to Debtor’s Claim of...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on April 6, 1988, on a motion by the trustee, Kathryn Page (“trustee”) for approval of a settlement of a law suit (“the settlement”), “The Bank of New England, N.A., Plaintiff, vs. Hanson Industries, Inc. and Steven D. Hanson, Defendants”, originally commenced in Hennepin County District Court (File No. ...
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OPINION This adversary proceeding involves a creditor’s request to have the debtor’s chapter 7 discharge denied pursuant to 11 U.S.C. § 727(a)(2) and 727(a)(4). In a prior opinion reported at In re Garcia, 69 B.R. 522 (Bankr.E.D.Pa.) aff'd. 76 B.R. 68 (E.D.Pa.) af f'd. mem., 838 F.2d 460 (3rd Cir.1987), I addressed a discovery dispute between these parties...
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MEMORANDUM AND ORDER Before the court is a Motion to Dismiss filed by the defendant, First American Bank (Bank) on April ■ 13, 1988. By its motion, the Bank contends the complaint of the Chapter 7 trustee, Phillip D. Armstrong is time-barred by the statute of limitations set forth in 11 U.S.C. § 549(d). Following the dismissal notice, the trustee filed an amended complaint which prompted the Ba...
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*494 OPINION AND ORDER DENYING MOTION TO DISMISS This matter is before the court upon the Prudential Insurance Company of America’s motion to dismiss and Debtor’s memorandum contra thereto. Upon consideration thereof, the court finds that Prudential motion is not well taken and should be denied. FACTS On December 31, 1987, Debtor filed his petition under chapter 12 of t...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 11 case concerns the marshall-ing of the Debtor’s assets. Defendant/Cross-Plaintiff NCNB National Bank of Florida (NCNB) filed a cross-claim against Defendant/Cross-Defendant Mac Papers, Inc. (Mac Papers), to compel Mac Papers to look to certain collateral for satisfaction of its debt prior to seeking s...
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MEMORANDUM OPINION This adversary proceeding was commenced by Complaint filed February 12, 1988, by which the Plaintiff, Carol Renee McConnell, seeks a determination that certain divorce decree payments awarded her in a 1987 divorce from the defendant, Field McConnell, are in the nature of alimony and support and thus nondischargeable under section 523(a)(5) of the Bankruptcy Code. In six count...
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MEMORANDUM I. INTRODUCTION Wedgestone Realty Investors Trust (“Wedgestone”) has filed a claim against the Debtors based upon a loan made in June of 1986 secured by four properties owned by the Debtors individually or as trustees of real estate trusts. Wedge-stone’s claim, as of January 1, 1988, totals $4,032,011.03. It consists of the remaining loan balance of $2,460,000, insurance p...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ORDER TO SHOW CAUSE On April 26, 1988, this Court sua sponte issued an Order to Show Cause, premised on the appearance that the granting of a discharge in this case would constitute a substantial abuse of the Bankruptcy Code. A hearing was held on May 24, 1988, at which time the Trustee, Robert Matsumoto, Esq. appeared on behalf of himself,...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on the Objection of F & J Farm Service, Inc. to Debtors’ Claim of Exemptions and the Objection of F & J Farm Services, Inc. to Debtors’ Motion to Avoid Liens of Central Trust Co. and F & J Farm Services, Inc. After the Hearing, the Court allowed the parties to file Briefs setting forth additional arguments direct...
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MEMORANDUM DECISION AND ORDER On March 31, 1988, Edward P. Anderson and Alzada P. Anderson (“Andersons”), creditors herein, filed a Motion for Examination and Reduction of Trustee’s charges (“Motion”) requesting that the court examine, then reduce the “fees for storage of corporate records” assessed by the Trustee against the Andersons. The Motion was heard on May 20, 1988, at which ...
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MEMORANDUM AND ORDER This matter is before the court on competing motions for summary judgment. Norwest Bank (Bank) filed its Motion for Summary Judgment of Dismissal on March 22, 1988, and the trustee, William P. West-phal (Trustee), filed a Cross-Motion for Summary Judgment on March 30, 1988. Westphal, a successor Chapter 7 trustee, commenced the instant adversary action on March 6, 198...
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MEMORANDUM AND DECISION On January 7, 1988, a Motion was filed by the creditor, Mr. Bares, seeking relief from the automatic stay to permit foreclosure of a mortgage against the Debtors’ residence. The Motion was returnable January 27, 1988, the date set for confirmation of the Debtors’ Chapter 13 Plan as well. As of the return date, no responding papers were filed with the Court or served on the ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT The above-entitled adversary proceeding came on for trial before the undersigned on June 7, 1988. David W. Larson appeared on behalf of United American Insurance Company (“UAI”); Richard J. Pearson appeared on behalf of Richard F. Koelfgen (“debtor”). Plaintiff seeks to have this court declare debtor’s debt to it to be non-discha...
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*286 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR SUMMARY JUDGMENT On December 11, 1987, the trustee, Robert 0. Lippi, (“Trustee”) filed a Complaint against James Covella (“Covella"), Mountain Management, Inc., dba Pacific Operations and Development Co. (“Mountain Management”), Executive Suite Secretarial Servi...
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OPINION Appellant, the trustee in bankruptcy, appeals the denial of his motion for partial summary judgment that, pursuant to 11 U.S.C. § 544(b), he may avoid the transfer of community property to appellee, formerly the debtor’s spouse, and use the money *102 to satisfy a judgment against the debtor on a personal injury claim. The principal issue is the construction and ...
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*94 OPINION Before JONES, MOOREMAN and VOLINN, Bankruptcy Judges. The creditor, Commonwealth Financial Corporation, appeals a bankruptcy court order granting summary judgment in favor of the Debtor, Gus Kit Franklin, dismissing Commonwealth’s nondischargeability complaint. We REVERSE. FACTS Over the course of 1981 and 1982 the Appellant, Commonwealth Financial Corp...
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OPINION This is an appeal of an order granting debtor’s motion to avoid a nonpossessory, nonpurchase-money security interest in property claimed as exempt, pursuant to 11 U.S.C. § 522(f)(2)(B). The exemption enabling debtor to avoid the lien was for a pickup truck claimed as a “tool of the trade” pursuant to 11 U.S.C. § 522(d)(6). The extent to which the lien could be avoided was increase...
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*61 OPINION Andrew appeals from an order denying his motion to vacate the orders modifying the plan, approving the general partner’s advances to the partnership as an administrative expense, and approving employment and payment of the general partner’s attorney’s fees nunc 'pro tunc. ISSUES 1. Whether the orders authorizing the debtor to employ counsel on a ...
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MEMORANDUM OF DECISION The debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code. The debtor’s amended plan calls for payments of $140.00 per month for 50 months, resulting in total payments of $7,000.00 and payments to unsecured creditors of 15 cents on the dollar. Three creditors have objected to the confirmation of the debtor’s Chapter 13 plan on the grounds t...
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MEMORANDUM OPINION AND ORDER INTRODUCTION The plaintiffs initiated this adversary proceeding under Section 523(a)(2) of the Bankruptcy Code by complaint on November 25, 1987. The complaint alleged that the debtors knowingly sold to the plaintiffs residential real estate that was termite infested and damaged. The plaintiffs sought $50,000.00 in compensatory damages and $25,000.00 in punitive d...
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ORDER REGARDING MOTION TO REOPEN CHAPTER 7 BANKRUPTCY This matter comes before me upon the Motion of Marilyn Karamitsos to reopen her Chapter 7 bankruptcy case. The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157 and the Order of Reference of the District Court. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A). Debtor has moved und...
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MEMORANDUM OPINION AND ORDER This matter came for trial on February 29 and March 1, 1988, on the complaint of Douglas County Bank objecting to the discharge of Marvin Jerry Fine under section 727(a)(2)(A) of Title 11, United States Code. The plaintiff/bank appeared through counsel, Charles T. Engel and Bruce J. Woner. The defendant/debtor, Marvin Jerry Fine, appeared through counsel, Jame...
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MEMORANDUM OPERION AND ORDER This cause comes before the Court on Cross Motions for Summary Judgment. *130 The Court has reviewed the Memoranda and affidavits, as well as the entire record in this case. Based on that review, and for the following reasons, the Court finds that Plaintiffs Motion for Summary Judgment should be Denied, and Defendants’ Motion for Summary Judgment should be Denied....
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS INTRODUCTION This matter is before the Court on a Motion To Dismiss (hereinafter the “Motion”) filed by certain Defendants in two consolidated adversary proceedings. The Motion is based upon Bankruptcy Rule 7012 and Rules 12(b)(1) and (h) F.R.Civ.P. for lack of jurisdiction over the subject matter. FACTS On December 24, 1987, Clark Oil & Refining Corpor...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Debtor/Defendant’s (“Debtor” herein) Motion for Summary Judgment to dismiss the Complaint to Determine Discharge filed by Odie Cumberlin Auctioneers, Jim Odie, and Charles E. Cumberlin (collectively “Plaintiff” or “Odie” herein). For the reasons set forth in this Opinion, the Court will grant the Debtor’s Motion...
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DECISION AND ORDER This matter is before the Court on the motion of the Debtor, KEITH E. BOOK, pursuant to Bankruptcy Code Section 105, for an order staying the Internal Revenue Service from taking any action to collect income taxes which are the joint obligation of the Debtor and Lucinda Book, the Debt- or’s former spouse. Keith E. Book filed a petition under Chapter 13 of the Bankruptcy Cod...
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MEMORANDUM DECISION The Debtor, Desert Enterprises (“Debt- or”), objects to the claim of secured creditor First Western Savings (“First Western”). For the reasons set forth below, the objection is overruled and the claim will be allowed. FACTS On April 18, 1977, Robert Bigelow and Robert Banks borrowed $500,000 from American Savings & Loan Association (“ASL”). They executed a note in favor of ASL...
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MEMORANDUM ORDER This proceeding came on for hearing on the defendant’s motion for summary judgment. William I. Kampf appeared for the plaintiff, Walter R. Falk. Scott A. Johnson appeared for the defendant, Elaine S. Heck-er. Based on the affidavits, memoranda of counsel, and the file of this proceeding, I make the following: MEMORANDUM ORDER Walter R. Falk is the debtor-in-poss...
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ORDER This matter is before the Court on the Complaint to Determine Dischargeability of Debt filed by Marshall Van Slingerland (hereafter, plaintiff). At the trial of June 16, 1988, plaintiff failed to appear but was represented by counsel. Plaintiff’s former wife, Marilyn L. Slingerland (hereafter, defendant), appeared objecting to discharge of the debt and was represented by counsel. The fa...
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OPINION The sequence of unfortunate events described herein which have transpired between the Chapter 11 Debtor and its landlord requires us to impose substantial damages upon the landlord for evicting the Debtor without first obtaining relief from the automatic stay, but to decline the Debt- or’s attempt to very belatedly assume the lease in issue. However, as we indicated to the parties previ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT Plaintiff Capital City Bank & Trust (the “Bank”) seeks nondischargeability of the debt of John A. Kroh, Jr. pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). At trial, plaintiff appeared by counsel Frank Barker, III and Robert Pummill and by representative Del Weidner. Defendant appeared by counsel F. Stannard Lentz and Darrell McGowen. ...
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MEMORANDUM OF DECISION AND ORDER RE: DENIAL OF CONFIRMATION OF PLAN OF REORGANIZATION The matter before the Court is the confirmation of the Substituted Plan of Reorganization filed by Georgie W. Arnold and Laura J. Arnold, Debtors. A final confirmation hearing was held on January 21, 1988 in Waterloo, Iowa. The matter was submitted to the undersigned for consideration on March 8, 1988. A...
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DECISION On June 16, 1988, Congress enacted Public Law 100-334, 102 Stat. 610-615. Sections 1 and 2 of the Act constitute the “Retiree Benefits Bankruptcy Protection Act of 1988.” Section 3 of the Act (Public Law 99-591) amends Section 608(a) of the second title VI of the joint resolution entitled “Joint resolution making continuing appropriations for the fiscal year 1987, and for other p...
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*404FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is the dis-chargeability vel non of an obligation imposed on Dr. Michael J. Kinney (Dr. Kinney) in conjunction with a divorce proceeding by the Circuit Court of the County of Cabell of the State of West Virginia. The claim that the obligation is dischargeable is ...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on April 21, 1988, on plaintiffs’ motion for partial summary judgment as to counts one, four and five of the complaint. Ann Morelli Spencer appeared on behalf of plaintiffs, Northwest Automatic Products, Inc. (“Northwest”) and its parent corporation, DOLA International Corp. (“DOLA”); Edward F. Fox appea...
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MEMORANDUM OPINION ON MOTION TO LIFT STAY This opinion involves the continuing issue of whether class proofs of claim may be filed in a bankruptcy proceeding. The issue comes to the Court in the form of a Motion to Lift Stay filed by a class of plaintiffs in a suit currently under way in an Illinois U.S. District Court. This Court finds that cause for lifting of stay has not been shown. ...
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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 involves the right of Hardy Cornelius Warmack and his wife, Phyllis Castellaw Warmack, to a general bankruptcy discharge, which right is challenged by the Plaintiff, Chase Manhattan Financial Services, Inc. (Chase). In addition to objecting to the discharge ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT Plaintiff Capital City Bank & Trust (the “Bank”) seeks nondischargeability of the debt of George P. Kroh pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(2)(B). The Bank bases its case against George on an alleged principal-agent relationship between George and his brother, John. Both brothers are debtors in Chapter 11 cases in which trustees ...
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MEMORANDUM OPINION Defendant Joanne Wells (“defendant”) has filed this motion to vacate an August 12, 1987 order which declared nondis-chargeable a debt owed by defendant to plaintiff Michael J. Tamarkin (“plaintiff”). The order was entered after defendant failed to file an answer within an ambiguous extended answer period. We find that defendant’s failure to answer constituted excusable ...
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ORDER PURSUANT TO REMAND IN RE FEE APPLICATION OF RONALD BERGWERK THIS IS a Chapter 7 liquidation case originally commenced by an involuntary petition filed on April 5, 1983, by Mr. Ronald L. Bergwerk on behalf of certain creditors of Schumann Tire & Battery Co., Inc. (Debtor). The matter under consideration is the appropriate fee to be awarded to Mr. Bergwerk for his services, rendered t...
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MEMORANDUM The Trustee filed the above captioned complaint against the Debtor Francis P. Tracey (“Tracey” or the “Debtor”), Helen Feeney (“Feeney”) and Maureen E. McKin-non (“McKinnon”), the Debtor’s niece, on September 18, 1987. Through his complaint, the Trustee seeks to set aside certain conveyances made by the Debtor to Feeney and McKinnon of interests in Unit E-21, a condominium loca...
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MEMORANDUM In its memorandum of June 20, 1988, the Court ordered the State of Nebraska and plaintiff to provide legal arguments on the issue of Nebraska’s immunity from plaintiffs complaint of conversion. The Court has received and reviewed the arguments presented by Nebraska. Plaintiff provided no further legal arguments. Plaintiffs action for conversion against the State of Nebraska is dism...
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*6 MEMORANDUM OF DECISION INTRODUCTION This adversary proceeding was commenced on June 16, 1987 when the Chapter 7 Trustee filed a four count complaint. Count I seeks a determination that one quarter (25%) of the debtor’s account under his Profit Sharing Plan is property of the estate pursuant to section 541 of the Bankruptcy Code. Count II hinges on the Trustee’s success on...
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MEMORANDUM OPINION In this Chapter 11 case the Debtor has sought to sell all of its operating assets before it has had a plan of reorganization confirmed, and in fact before it has even filed a plan. The Debtor has advised the Court that it intends to file a plan of liquidation within the exclusive period provided to the Debtor by 11 U.S.C. Section 1121. The Debtor, Naron & Wagner, C...
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ORDER The above-captioned adversary proceeding concerns claims and counterclaims of Plaintiff/Debtor and Defendant Hardinge Bros., Inc. (Hardinge) arising out of Har-dinge’s sale of a certain machine to Debtor in June 1986. Debtor demanded a jury trial. The Court requested the parties to brief the issue of Debtor’s entitlement to such a trial at a scheduling conference held on April 20, 1...
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MEMORANDUM OPINION Presently before the Court is Debtors’ Motion for Contempt against Jackson & Perkins Co., a creditor in this bankruptcy case, and Joseph J. Bernstein, Esquire and Bernstein and Bernstein, P.C., said creditor’s counsel. The Motion avers that certain actions by this creditor, through its counsel, constitute willful violations of the automatic stay, subjecting both parties...
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MEMORANDUM OPINION Before the Court is the Motion to Reopen Chapter 7 case filed by the debtor, Vernon Rhodes d/b/a Rhodes Home Remodeling and Rhodes Home Repair. The debtor seeks to reopen his case to amend his schedules to add a creditor, Ernest Bow-den, and have any debts or claims of Bow-den discharged. Bowden has filed an objection to the reopening of the case. The debtor and Bowden disput...
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MEMORANDUM OPINION Before the Court is the Complaint for Turnover and Avoidance of Statutory Lien filed by the debtors, Abner Scott, Jr. and Nettie Scott, against the defendant, Jerry Beckham [Becker] 1 d/b/a J & S Automotive in the above adversary proceeding. The defendant, Beckham, filed an answer denying the debtors’ turnover claim and the statutory lien avoidance claim. The...
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ORDER This matter is before the court on Plaintiffs complaint for relief from stay. The complaint sought not only relief from the automatic stay but also an injunction against the Debtor’s use of cash collateral. Upon filing the complaint, Plaintiff also filed a request for a temporary restraining order, prohibiting the use of cash collateral. This request was denied, without a hearing, i...
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ORDER DETERMINING PROCEEDING TO BE NON-CORE MATTER AND REQUIRING AMENDMENTS OF THE PLEADINGS This matter is before the Court on the plaintiff-debtors’ complaint to determine the ownership of a 1972 Astra Guerdon mobile home, Serial Number 1756. In their prayer for relief, the plaintiffs requested that the Court declare the ownership interest of the defendants in the home null and not enforceable, ...
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OPINION RE APPOINTMENT OF COMMITTEE OF SECURED CREDITORS I. INTRODUCTION This motion raises the issue of whether the Court has the power to appoint a committee of creditors after the confirmation of a Chapter 11 plan. A motion to appoint a committee of secured creditors is brought by secured creditors American Security Bank as Trustee for the International Brotherhood of Painters & A...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon Sure-Snap Corporation’s (the debtor’s) Complaint for Preliminary Injunction, to Set Aside Pre-petition Conveyance, for a Turnover of Funds, for Declaratory Judgment, and for a Money Judgment pursuant to 11 U.S.C. § 542, and the Court having heard the testimony, examined the evidence presented, observed the candor...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Peggy S. Hicks for reestablishment of a lost instrument and a declaratory judgment relating to Property of the Estate pursuant to 11 U.S.C. § 541, and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments...
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MEMORANDUM DECISION Debtors Mickey and Diane Blackburn seek confirmation of their amended Chap *274 ter 13 plan. In part, the plan provides for payment of $7,900, at the rate of $183 per month in satisfaction of the purchase option under a vehicle lease. Security Pacific Credit Corporation, the lessor, has objected to confirmation and asserts that the lease terminated pre-petition and cannot ...
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OPINION The plaintiff, Larry D. Clemens, is a prison inmate who has filed a complaint in this bankruptcy case seeking a determination that the debt owed to him by the debtor, a former prison guard, is nondischargeable by virtue of 11 U.S.C. § 523. Although the specific nondischargeability provision by which the plaintiff seeks to proceed is not expressly stated, he alleges that the debt a...
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88 B.R. 214 (1988) In re HAUGEN CONSTRUCTION SERVICES, INC., Debtor. Bankruptcy No. 85-05321. United States Bankruptcy Court, D. North Dakota. February 29, 1988. *215 William P. Westphal, U.S. Trustee, Minneapolis, Minn. Max Rosenberg, Bismarck, N.D., for debtor. Edward Klinger, Moorhead, Minn., for Butler Machinery. Richard P. Olson, Minot, N.D., for American Bank. John Petrik, Minot, N.D., for ...
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MEMORANDUM The chapter 7 trustee has filed this action to avoid an unperfected security interest in a 1982 Ford Escort automobile purchased by the debtor from the defendant. Crucial to the trustee’s case is a finding that the 1982 Ford Escort constitutes property of the estate. An analysis of the appropriate provisions of the Bankruptcy Code leads this court to conclude that the automobil...
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MEMORANDUM OPINION We consider here a fee application for services rendered by the attorney for the trustee in the instant case. Fee applications filed by the trustee, counsel for the trustee, and special counsel for the trustee, were set for hearing on May 24, 1988. Although no objections were filed in response to the applications, the debtors raised objections on the day of the hearing ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT ON PLAINTIFF’S MOTION FOR ABSTENTION Introduction This matter comes before the Court on the motion of the debtor, Nathaniel Williams, asking the Court to exercise its discretion and abstain from hearing this adversary proceeding under 28 U.S.C. § 1334(c)(1). 1 This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) 2 . Findings of Fa...
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MEMORANDUM Alleging that the debtor-in-possession, Media Central, Inc. (“Media Central”), improperly solicited acceptances to its proposed plan of reorganization, a creditor, Donatelli & Kline, Inc. (“Donatelli & Kline”), filed a motion for sanctions in this *686 chapter 11 case. Donatelli & Kline asserts that Media Central improperly solicited votes on its plan (1) by asking...
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OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT Pan-Western Life Insurance Co. (“Pan-Western”) initiated this adversary proceeding to except a debt from the effect of discharges granted to Robert and Elizabeth Ross in their jointly filed Chapter 7 bankruptcy case pending before this Court. The matter was tried to the Court on May 11, 1988. The Court has jurisdict...
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MEMORANDUM AND ORDER This matter comes to be heard on the debtor’s motion to dismiss a complaint objecting to her discharge filed by Guy Olson, Patricia Olson and G.E.O. Electric (“Plaintiffs”). For the reasons stated below, Counts I and III of the Plaintiffs’ complaint are dismissed unless amended within 21 days to plead fraud with particularity in accordance with Federal Rule of Civil P...
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ORDER This case is before the Court on a motion by Airlines Reporting Corporation (“ARC”) for relief from the automatic stay and a motion by the debtor to assume an exec-utory contract with ARC. The motions came on for hearing on July 1, 1988. 1 The debtor, The Travel Shoppe, Inc. (“Travel Shoppe”), is a travel agent. The debtor filed a petition under Chapter 11 of the Bankruptcy Code on Ma...
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ORDER DISMISSING ADVERSARY CASE This matter comes before me on Debtor’s Motion to Dismiss the application of First City National Bank of Houston (First City) seeking a temporary restraining order, preliminary injunction, permanent injunction and declaratory judgment for failure to state a claim upon which relief can be granted. At a hearing held on June 13, 1988, I denied in part First Ci...
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88 B.R. 154 (1988) In re Darnell G. (Gwinn) KEATON dba the Refreshment Warehouse, Debtor. Bankruptcy No. 2-85-02522. United States Bankruptcy Court, S.D. Ohio, E.D. February 10, 1988. Mitchell D. Cohen, Columbus, Ohio, for debtor. Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for U.S. ORDER DENYING CONFIRMATION OF CHAPTER 11 PLAN BARBARA J. SELLERS, Bankruptcy Judge. This matter is before...
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ORDER ON MOTION FOR CONTEMPT This matter is before the Court upon a motion filed on behalf of Jeffrey and Regina Roush, requesting this Court to cite Bank One, Columbus, NA (“Bank One”) for contempt. The motion was opposed by Bank One and was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this dist...
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MEMORANDUM DECISION The issue in this case is whether a Chapter 13 debtor is entitled to the discharge of an 11 U.S.C. section 507 priority debt when the Internal Revenue Service (“IRS”) has not timely filed a proof of claim. THE FACTS The debtor, Betty Tomlan, filed her petition for relief under Chapter 13 of the Bankruptcy Code on September 19, 1984. 11 U.S.C. section 1301 et seq. The n...
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ORDER ON EXEMPTION (TRUST & ANNUITY) Seven creditors (CP 29), joined by the trustee (CP 34), and another creditor, Chicago Title (Adv. No. 88-0144, Count 3) have objected to the debtor’s claimed exemption of the “Ainickel Irrevocable Trust Annuity”. The parties were heard April 28. The objections are overruled. The Ainickel Trust On November 6,1986 the debtor’s daughter-in-l...
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DECISION Before the Court is the Motion for Rehearing filed by Andrew Richardson, Esq., attorney for the debtor, who requested and was allowed further opportunity to argue in support of his application for compensation, which was reduced from $28,100 to $23,000. Although entitled “Motion for Rehearing,” said pleading, and memorandum in support thereof, appears to be a combined/altern...
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MEMORANDUM DECISION This matter comes before the Court on the Debtor/Defendant’s Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 as applied to bankruptcy proceedings by Bankruptcy Rule 7056. FACTS 1 In 1986, Waymon and Barbara Wittman were residing in New Jersey but were planning on relocating to Illinois. On or about July 13, 1986, the Wittmans were introduced ...
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MEMORANDUM DECISION The plaintiff creditor seeks exception from discharge under 11 U.S.C. § 523(a)(2)(A) for its $22,307 judgment. 1 The debtor has answered and the matter was tried July 13. The debtor’s answer incorporates an assertion that the complaint fails to state a cause of action. I agree and conclude that plaintiff cannot amend to state any ground for relief. ...
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ORDER DENYING CONFIRMATION AND DISMISSING CASE A confirmation hearing was held April 19 and 21 in this chapter 11 case. Since the hearing, the debtor has filed a Fifth Amended Plan (CP 147). The debtor may modify its plan at any time before confirmation. 11 U.S.C. § 1127. Although this modification appears to adversely affect a party (see note 2 infra), in view of the conclusion I have reached wit...
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MEMORANDUM DECISION BACKGROUND During the course of administration of this Chapter 11 estate, the debtors-in-possession entered into a contract to participate in the Dairy Termination Program with the United States Department of Agriculture. Under this program, the debtors agreed to sell their dairy herd for slaughter and not to have any interest in dairy cattle or in the production of milk f...
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MEMORANDUM DECISION The trustee seeks recovery under 11 U.S. C. § 547(b) of $200,000 as an alleged preferential transfer to the defendant. The defendant has answered and' the matter was tried on May 31. The trustee claims that the following actions constituted a preferential transfer of the debtor’s property to or for the benefit of the creditor. On December 26,1984 the debtor entered into a const...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court upon the creditor, VICKIE STEWART-MI-CHAUD’s, complaint to determine dis- *455 chargeability of a debt owed by the debtor, ALLEN S. MULLIN, JR., pursuant to 11 U.S.C. § 523(a)(2)(A) and (B), § 523(a)(4), and § 727(a)(4)(C) and the Court having heard the testimony, examined the evidence presented, observed the candor a...
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ORDER ON OBJECTION TO CONFIRMATION This matter is before the Court on an objection to confirmation of the Chapter 12 plan proposed by Delbert Neff. The objection, filed on behalf of The Federal Land Bank of Louisville (“Land Bank”), was heard on an abbreviated basis by the Court. Subsequent to that hearing, the parties entered into certain stipulations as to facts, transcripted testimony ...
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OPINION AND ORDER GRANTING MOTION FOR EXPEDITED DECISION AND DENYING MOTION TO RECONSIDER REOPENING OF CASE This matter is before the Court upon a contested motion filed by creditor, William *802 Maddox, requesting this Court to reconsider its order reopening this case. The debt- or, Michael Soult, also moved for an expedited decision. An evidentiary hearing was held on both motions on April ...
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ORDER OVERRULING OBJECTIONS TO CONFIRMATION This matter is before the Court upon two objections to confirmation of the Chapter 13 plan proposed by Allard and Marian Compton. The objections, filed by Bank One, Columbus, N.A. (“Bank One”) and General Motors Acceptance Corp. (“GMAC”) were heard by the Court and were taken under advisement. The Court has jurisdiction in this matter under 28 U.S.C...
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MEMORANDUM DECISION The plaintiff creditor seeks exception from discharge under 11 U.S.C. *431§ 523(a)(2)(B) for its claim of $5,000. The debtor has answered and the matter was tried on May 31. I conclude that the claim should be excepted from this debtor’s discharge and that plaintiff is entitled to judgment against the debtor in the amount claimed. In connection with a loan of $5,000, the debtor...
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ORDER ON DEBTOR’S EMERGENCY MOTION This debtor’s “Emergency Petition for Order Enforcing Automatic Stay” (CP 2) filed June 17 was heard by me on July 7 in Judge Weaver’s absence. The motion is denied. The Debtor’s Plan The debtor’s chapter 13 petition was filed June 16 without a Plan which was required to be filed not later than July 1. B.R. 3015. At the hearing, the debtor ...
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ORDER DENYING MOTION FOR STAY OF PROCEEDINGS AND SETTING TRIAL DATE This matter is before the Court upon a motion filed on behalf of plaintiff Cardinal Casualty Company (“Cardinal”), seeking a stay of certain actions against Cardinal which are pending in federal or state courts in Louisiana and Wisconsin. The motion was opposed by Larry E. Staats, the duly-appointed trustee in bankruptcy, and w...
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AMENDED MEMORANDUM, OPINION & ORDER FACTS This matter is before the Court on the application of Katten, Muchin & Zavis, (“Katten”) attorneys for the Chapter 11 debtor, Chicago Lutheran Hospital Association d/b/a Walther Memorial Hospital, (“debtor”) for the allowance of interim compensation and reimbursement of expenses, on the application of Lord, Bissell & Brook for final compensat...
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OPINION This is a proceeding pursuant to 11 U.S. C. §§ 523(a)(2)(A) and 523(a)(6) to determine dischargeability of various debts. In a previous opinion, reported at In re Paolino, 75 B.R. 641 (Bankr.E.D.Pa.1987), I denied the motion of defendant Elaine M. Paolino for summary judgment and set out much of the applicable law on agency. That opinion also serves as a straightforward...
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*108 MEMORANDUM OPINION The matters before me involve a motion to vacate an order appointing McKittrick, Jackson, DeMarco & Peckenpaugh as special counsel to debtor.(“MJDP”) and a motion by MJDP to reconsider my order denying its application for attorney’s fees. JURISDICTION This court has jurisdiction over this adversary proceeding pursuant to 11 U.S.C. § 1334(a) (the ...
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ORDER DENYING CREDITOR’S MOTION TO DISMISS A creditor has moved (CP 17) to dismiss this chapter 11 case under 11 U.S.C. § 109(b) and (d). These provisions disqualify “a domestic insurance company” from bankruptcy. The debtor has responded (CP 28) and the motion was heard May 31. The parties and the Florida Department of Insurance have each filed briefs. I now agree with the debtor that th...
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MEMORANDUM DECISION The plaintiff ex-wife seeks exception from discharge under 11 U.S.C. § 523(a)(5)1 for her claim of $45,600. The debtor has answered and the matter was tried on July 12. I agree with The Settlement Agreement of September 10, 1986, incorporated in the November 19, 1986 divorce decree, contains an explicit, irrevocable waiver of alimony and support by plaintiff. In addition to div...
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STATEMENT OF THE CASE Charles Lee Kelly, Sr., and Crystal Ann Kelly, Plaintiffs, filed a joint petition for relief under Chapter 7 of the Bankruptcy Code on May 4, 1987. On September 4, 1987, Plaintiffs filed a complaint seeking to recover from the United States Air Force, Defendant, the sum of $1400. Plaintiffs allege that Defendant withheld this money from Mr. Kelly’s final paycheck in ...
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ORDER DENYING MOTION FOR ADEQUATE PROTECTION OF FIRST FIDELITY’S INTEREST IN CASH COLLATERAL This court considered the “Motion For Adequate Protection Of First Fidelity’s Security Interest In Cash Collateral Under The Third Mortgage Indenture” (hereinafter the “Motion”), filed by First Fidelity Bank, National Association, New Jersey (“First Fidelity”), Citicorp, Consolidated Utilities Corporati...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Investors Savings Bank (“Investors”), by counsel, to dismiss the above-styled proceeding. Under the terms of the debtor’s plan confirmed by this Court on October 2, 1987, the debtor was to make post-petition monthly payments of principal and interest directly to Investors. The debtor has not made any of these direct post-pet...
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MEMORANDUM DECISION The trustee seeks avoidance and recovery, as preferential transfers under 11 U.S. C. § 547(b), of two payments totalling $11,-000 made to the defendant attorney within 90 days before bankruptcy. Defendant has answered and the matter was tried June 28. I agree with the plaintiff that both payments are voidable and recoverable from the defendant. The facts are not i...
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OPINION The instant dispute concerning the Debtors’ objections to certain Proofs of Claims filed by the Internal Revenue Service (hereinafter referred to as “IRS”) is longstanding and pivotal to the fate of the joint Debtors’ Chapter 13 Plan. Upon the reversal and remand of our Orders refusing to reconsider denial of the Proofs of Claims on equitable grounds, we are compelled to rule agai...
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OPINION This is the latest sad chapter in the demise of a briefly-prosperous shoe-store chain chronicled for the most part in our Opinion of April 6, 1988, published at 84 B.R. 947, in an Adversary proceeding commenced against the Debtor to enforce certain trademark rights by the corporate alter-ego of Earl Shub, the line builder probably most responsible for the Debtor’s brief period of ...
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MEMORANDUM OPINION AND ORDER 1 I Statement of Proceedings This case came on for hearing on December 16, 1987, on Application by Chapter 12 Debtor for Confirmation of First Amended Plan filed October 27, 1987, and Objection thereto filed by the Equitable Life Assurance Society of the United States (hereinafter: “Equitable”) filed on December 16, 1987. The Court b...
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ORDER — MOTION FOR ORDER REQUIRING MARSHALING AND MOTION FOR ORDER REQUIRING TRUSTEE TO ABANDON PROPERTY On March 21, 1988, a hearing was held on motion for order requiring marshaling and motion for order requiring trustee to abandon property. Bruce J. Toenjes appeared on behalf of the movant creditor Meinerz Creamery, Inc. (hereinafter “Mein-erz”). Mark S. Lorence appeared on behalf of Debtor....
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MEMORANDUM OPINION INTRODUCTION This case is before the Court upon debt- or’s motions pursuant to 11 U.S.C. § 365(a) to reject the executory portion of an Asset Purchase Agreement as a severable contract and to assume a lease of business premises with H.M. Bowness, Inc. The executory contract concerns an Asset Purchase Agreement dated December 13, 1985, in which Sun City Oil Co., Rob...
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MEMORANDUM OPINION INTRODUCTION This case is before the Court upon debt- or’s motion to reject two executory contracts with Frank Zentmeyer, Neil Zent-meyer, and Central Florida Fuels, Inc. (“Central Florida”) pursuant to 11 U.S.C. § 365(a). The executory contracts involve an Asset Purchase Agreement dated December 13, 1985, in which Sun City Oil Co., Robert Louis Szorcsik, and Sun C...
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MEMORANDUM OPINION Presently before the Court is the Complaint of Fleet Consumer Discount Company (“Fleet”) objecting to the dischargeability of a certain debt owed to it by Gerald James Liptak and Debra Lynn Liptak (“Liptaks”). 1 Fleet contends that the Lip-taks made and/or published a materially false financial statement, in reliance upon which Fleet granted a loan extension in the sum of $...
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MEMORANDUM OPINION Presently before the Court is Plaintiff’s Objection to Dischargeability of certain debt, pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). A trial was held, at which time testimony was offered. Based upon the evidence so adduced we find Plaintiff has not met her burden of proof, and judgment will be entered for Defendant. FACTS On July 22, 1985 Jean Gi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon motion filed by Auto Dealers Group (“Dealers”) to Amend Plan, Bar Distribution and Require Countersigning of Checks. Upon consideration of the evidence, the Court makes the following findings of fact and conclusions of law: Findings of Fact Auto Dealers Services, Inc. (“ADSI”) filed under Chapter 11 o...
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MEMORANDUM OPINION This case is before the Court upon Motion to Value Security filed by Robert Van Hellemont (“Van Hellemont”) on January 12, 1988. A hearing on the motion was held June 22, 1988, and the Court finds: FACTS On May 20, 1987, Van Hellemont filed a Motion for Relief from Stay, to Modify Stay, for Replevin, and for Adequate Protection. Thereafter, the movant and debtor entered into a ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING DEBTOR’S OBJECTION TO PROOF OF CLAIM NO. 25 FILED BY RON ALLEN TRUCKING COMPANY, INC. This case is before the Court upon the Frenz Enterprises, Inc.’s Objection to Proof of Claim No. 25 filed by Ron Allen Trucking Company, Inc. (“Allen”) in the amount-of $113,228.14. Allen’s claim is based upon road construction work performed by it on behalf of Fr...
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ORDER This case is before the Court on the above-referenced debtors’ objection to the claim filed by the United States of America/Internal Revenue Service (“IRS”). The Court conducted a hearing on the debtors’ objection on April 15, 1988, at which time the parties were directed to submit briefs on the matter. The facts of the case are as follows. The debtors filed their Chapter 7 case on November ...
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MEMORANDUM OPINION INTRODUCTION This case is before the Court upon debt- or's motion to reject an executory contract with Frank and Neil Zentmeyer pursuant to 11 U.S.C. § 365(a). The executory contract concerns an Asset Purchase Agreement dated December 13, 1985, in which Sun City Oil Co., Robert Louis Szorcsik, and Sun City Investments, Inc. agreed to sell certain business assets to...
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AMENDED MEMORANDUM OF DECISION RE APPLICATION TO EMPLOY ACCOUNTANTS (ERNST & WHINNEY) FACTS The facts are not in dispute. Viking Ranches, Inc., a Utah corporation (“Viking”), is the debtor-in-possession in a voluntary Chapter 11 case which was filed on *114 March 10, 1988. Viking is engaged in the “operation of a quarter horse and thoroughbred ranch including raising, se...
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These four appeals arise out of four separate orders issued by the bankruptcy court which determined that the appellees were “customers” of the debtor Brentwood Securities, Inc., (Brentwood), and thus eligible for protection under the Securities Investor Protection Act (SIPA). The Appellant, Securities Investor Protection Corporation (SIPC), essentially argues that the disputed investments were...
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OPINION The Debtor appeals a bankruptcy court order lifting the automatic stay based upon a finding of bad faith. We REVERSE. FACTS On June 8, 1987, the Debtor, Can-Alta Properties, Ltd., filed a petition for relief under Chapter 11 of the Bankruptcy Code. The petition stayed a foreclosure sale scheduled for the same date by the Appel-lee, State Savings Mortgage Co. (“State Savings”). State...
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DECISION ON CREDITOR’S MOTION TO JOIN IN THE INVOLUNTARY PETITION The debtor, Milton Braten, disputes the claim of his former attorney, Lawson F. Bernstein, P.C. (“Bernstein”), and contends that Bernstein is not a qualified creditor under 11 U.S.C. § 303(c) who may intervene in the involuntary Chapter 7 bankruptcy case that was originally commenced against him by a single creditor, the Ho...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Debtor/Defendant’s Application for Attorney’s Fees and/or Imposition of Sanctions after the Plaintiffs filed their Motion to Dismiss with Prejudice their own Complaint contesting the discharge in bankruptcy of the Debtor, and Motion to Vacate Pre-Trial Conference one day prior to the scheduled pre-trial conference. Hea...
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MEMORANDUM OF OPINION THIS CASE under Chapter 11 of the Bankruptcy Code (11 U.S.C. § 1101 et seq.) came on for confirmation of the debtors’ plan of reorganization on June 29, 1988. One of the debtors, Mrs. Yoshie Campbell and their attorney were present for the hearing. The United States Trustee and the attorney for Florida Investors Mortgage Corporation were the only other parties appearing at...
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MEMORANDUM OF DECISION In this adversary proceeding, motions for partial summary judgment have been filed by both the plaintiff trustee and the defendants. The trustee in bankruptcy, J. Michael Morris (hereinafter “Morris”), appears personally. The defendants, Jack B. Muir Irrevocable Trust, Jack B. Muir (hereinafter “debtor” or jointly, “debtors”) and Scott Muir, Trustees of the Jack B. ...
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MEMORANDUM OPINION We are called upon to rule on the defendants’ motion to dismiss for the plaintiff’s failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), as made applicable to this proceeding by Bankruptcy Rule 7012. The Trustee in this Chapter 11 case has filed a ten count amended complaint against the thirteen various defendants, alt...
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MEMORANDUM OF DECISION This adversary is before the Court for a determination of the priority between two competing security interest holders in personal property. Debtors appear by Clifford L. Bertholf. Plaintiff, United States of America, appears by Emily B. Metzger, Assistant U.S. Attorney. Defendant, The First State Bank of Kingman, appears by David D. Gaumer. The Chapter 12 standing truste...
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MEMORANDUM DECISION Plaintiffs commenced this adversary proceeding against the debtors/defendants to have the court determine whether an alleged debt is nondischargeable under 11 U.S.C. § 523(a)(6). Plaintiffs tried their case to the court after their request for a jury trial was denied and at the conclusion of their case-in-chief, the defendants moved to dismiss. Now, for the reasons sta...
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MEMORANDUM OPINION Debtor, Jerry Ray Maxwell, filed for relief and reorganization under Chapter 13 on February 17, 1987. That case was later converted to a Chapter 7 on October 20, 1987. In his bankruptcies, debtor showed Cora Seeley as a secured creditor for some $33,000.00 secured by a lien on his 1983 International Tractor Trailer. The Chapter 7 Trustee determined that debtor had never register...
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OPINION The instant bankruptcy cases were filed on April 20, 1987, and April 28, 1987, respectively, by Gary Michael Heidnik, an accused torturer-murderer of several mentally-retarded young women, on behalf of himself and the “church” of which he is self-proclaimed “bishop,” apparently formed to maximize tax exemptions. On May 19,1987, we issued an Opinion, reported at 74 B.R. 271 (Bankr.E.D.Pa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On March 12, 1986, Wayne H. Coloney Company, Inc. (“Coloney”) filed a complaint to (1) determine the dischargeability of a debt asserted against Coloney by the United States of America, Department of the Air Force (the “Air Force”) and (2) obtain a declaratory judgment and other equitable relief. Coloney filed a petition under Chapter 11 of the Bank...
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*22MEMORANDUM DECISION Emjay Corporation (“Emjay”) filed this adversary proceeding to determine whether a certificate of deposit, held by the First Interstate Bank of Wisconsin, is property of the Paragon Homes Chapter 7 estate or property of the Emjay Corporation Profit Sharing Trust and Plan. Paragon’s trustee has joined Emjay in asking the court to enter an order directing First Interstate to d...
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ORDER DENYING DEBTOR’S MOTION FOR STAY This Court entered its first Order granting relief from stay on May 31, 1988, set same aside at the request of debtor, who was in default, conducted a hearing on June 13, 1988, and thereafter entered an Order granting relief from the stay based on the evidence presented. That Order was appealed and the debtor has asked the Court for a stay and the setting ...
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DECISION ON ORDER TO SHOW CAUSE FOR ORDER MODIFYING ORDER OF SEPTEMBER 14, 1987 Angelo Rainaldi (“Rainaldi”), a creditor of the debtor, Domestic Fuel Corp. (“Domestic”), and the current owner of all of the shares of the joint debtor, Henry F. Raab, Inc. (“Raab”), has moved for modification of this court’s order dated September 14,1987, which allowed the fees for the debtor’s accountants to be pai...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTION TO CLAIM I. Introduction On August 26, 1982, Manville Forest Products Corporation (“M.F.P.” or “Debt- or”) filed a voluntary petition for reorganization under Chapter 11, section 301 of the Bankruptcy Code (the “Code”). M.F.P. continued in the management and possession of its business and properties pursuant to sections 1107 an...
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*489 OPINION INTRODUCTION The Debtors herein seek application of § 548 of the Bankruptcy Code, relating to fraudulent transfers, to a transaction that included both the termination of their lease with the Defendant, the Philadelphia Fresh Food Terminal Corporation (hereinafter referred to as “the Defendant”), and the Defendant’s effective elimination of the value of the Debt...
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ORDER OF CONTEMPT THIS CAUSE coming on to be heard on April 28,1988, upon WESTFIELD FINANCIAL CORPORATION’S Emergency Motion for Contempt and/or Ancillary Relief, and the Court having reviewed the pleadings and proceedings herein, having heard argument of counsel and being otherwise fully advised in the premises, and in the exercise of the Court’s duty under Section 105 to protect the bankruptcy s...
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MEMORANDUM OPINION The only issue unresolved by the parties to these very complex issues of personal holding company taxes, deficiency dividends, negligence penalties, and the priority or standing thereof, is whether the 5% “negligence penalty” assessed by the Internal Revenue Service under 26 U.S.C. § 6653 should be paid pro rata along with other general unsecured claims or whether it sh...
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MEMORANDUM DECISION The M & I Northern Bank brought this adversary proceeding under § 523(a)(2)(B) and (a)(4) of the Bankruptcy Code, claiming that Gregory R. Meyer obtained an extension, renewal or refinance of credit in the sum of $40,000 by using false personal financial statements. The testimony and documentary evidence presented at trial have caused the court to make the following fi...
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MEMORANDUM DECISION The Dousman State Bank (“Bank”) filed this adversary proceeding under an unspecified provision of § 523 of the Bankruptcy Code seeking a nondischargeable judgment against the debtor, Gerd D. Voelker, in the sum of $274,550.00, plus interest costs and attorney fees. Voelker then asked that the complaint be dismissed for failure to state a claim upon which relief can be granted. ...
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MEMORANDUM DECISION Plaintiff Vig has filed the present adversary complaint against the defendants Erickson seeking to have a debt owed Vig declared non-dischargeable. 1 FACTS Defendants were the sole shareholders of a corporation named Erickson Enterprises, Inc. (Erickson). The corporation was involved in the performance of reforesta *852 tion contracts. Vi...
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MEMORANDUM The question presented is whether the Chapter 7 trustee can use the “strong arm” power in § 544(a)(2) to penetrate a spendthrift trust where Tennessee law would permit the State of Tennessee as a (hypothetical) unsatisfied creditor to reach assets of the trust. The trustee cannot use § 544(a)(2) to assert the special status of the State. This is a core proceeding. 28 U.S.C...
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DECISION This adversary proceeding was brought by the plaintiff, Austin Mutual Insurance Company, to determine dischargeability of a debt under 11 U.S.C. § 523(a)(6). The debtor, Dawn M. Schultz, has moved for summary judgment asking that the debt be declared dischargeable as not arising from the willful and malicious conduct of the debtor. This is a core proceeding under 28 U.S.C. § 157(...
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MEMORANDUM Gull Air, Inc. (“Gull” or “Gull Air”) commenced the above captioned adversary proceeding against Embraer Aircraft Corporation (“Embraer”) on January 12, 1988. Through its complaint, Gull seeks the recovery of three payments of $50,000 each as voidable preferences. 1 Embraer filed a timely answer. The matters now before the Court are the motion for summary judgment fi...
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MEMORANDUM OPINION This adversary action was brought to determine if National Bank of Washington, Trustee, hereinafter Bank, was secured as to the personal property of The Inn at Grand Glaize, Ltd., hereinafter debtor. On September 25, 1985, the Bank loaned $9,500,000.00 to Grand Glaize Inn Partners (hereinafter GGIP), a Missouri limited partnership. The purpose of the loan was to finance the r...
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OPINION This matter is before the Court upon a motion by the United States Trustee to disqualify and remove Kleinberg, Moroney, Masterson & Schaehter, Esqs. (also referred to hereafter as “the Kleinberg firm”) as counsel for the Debtor in Possession, and to compel said attorneys to return funds paid by the debtor as a retainer. On December 15, 1987 the Kleinberg firm filed a bankrupt...
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MEMORANDUM DECISION Standard Law Enforcement Supply Co, also known as Standard Equipment Co. (SECO), filed its voluntary petition under Chapter 7 of the Bankruptcy Code in 1983, and John Castellani was appointed as its trustee. Thereafter, Castellani served also as bankruptcy trustee of Lentech International Corporation, a related corporation, until discovering that SECO was a creditor of Lentech....
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ORDER FOR JUDGMENT The above-entitled matter came on for hearing on July 18, 1988, for determination of the Central Pension Fund of the International Union of Operating Engineers and Participating Employers’ (Fund) interest in post-petition rents generated by real estate owned by the Debtor. Appearances were as noted in the record. Based on Stipulation of Facts, arguments and memoranda of couns...
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ORDER ON FINAL EVIDENTIARY HEARING ON MOTION TO USE CASH COLLATERAL THIS CAUSE came on for final eviden-tiary hearing upon Debtor’s Motion for the Use of Cash Collateral. Upon hearing testimony, argument of counsel, reviewing the record and being otherwise duly advised in the premises, this Court makes the following findings of fact and conclusions of law. The Debtor and another physician entered...
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MEMORANDUM OPINION ON DEBTOR’S AMENDED MOTION TO AVOID NON-JUDICIAL LIEN On the 13th day of July, 1988, the Court held a hearing on the Debtor’s Amended Motion to Avoid Non-Judicial Lien of ITT Financial Services. The Debtor and ITT appeared through counsel. After considering the arguments and evidence presented the Court is of the opinion that the motion is well-taken and should be granted. ...
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ORDER DENYING MOTION TO FIX DEADLINE FOR FILING COMPLAINT FOR DENIAL OF DISCHARGE AND/OR NON-DIS-CHARGEABILITY OF A DEBT This cause came before the court on motion to fix deadline for filing complaint for denial of discharge and/or non-discharge-ability of a debt filed by Stuart Bernstein, William Olliges and Thomas Boehm, creditors on December 11, 1987 and the response to the above-cited motion. ...
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ORDER DENYING MOTION TO RESET § 341(a) MEETING AND MODIFYING ORDER OF DISMISSAL This cause came on to be heard upon the motion of John Richard Leies to reschedule the first meeting of creditors based on transportation problems of the debtor. The motion was filed with the court on January 13, 1988. The first meeting of creditors had been held on January 11, 1988. In order for an honest debtor to ob...
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MEMORANDUM OPINION Rodney DeWayne Minniear and Beatrix Gisela Minniear filed their joint petition for relief under Chapter 7 on April 27, 1987. It was a “no asset” estate and debtors were discharged on August 10, 1987, and the case closed in November of 1987. On November 25, 1987, the law firm of Shug-hart, Thomson & Kilroy and the firm of Douglas C. Miller, P.A., neither of whom was list...
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MEMORANDUM OPINION Before the Court for consideration are the motions to adopt the decisions of the Interstate Commerce Commission and for summary judgment filed by the defendants, Baldor Electric Company, hereinafter Baldor, Bryan Foods, Inc., hereinafter Bryan, and Artex International, Inc., hereinafter Artex; as well as, the motion for summary judgment filed by the plaintiff, Jacob C. ...
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MEMORANDUM AND ORDER After the First National Bank of Robinson (“Bank”) filed its proof of claim as creditor in the Chapter 11 proceedings of T.R. Paris & Family, Inc., and Theodore and Sandra Paris (“debtors”), the debtors commenced an adversary proceeding against the Bank, seeking damages for the Bank’s alleged wrongful acts in failing to renew letters of credit to debtors’ suppliers an...
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OPINION The motion before us in the instant Chapter 11 case presents principally one question which we answer in the affirmative: may a debtor obtain an extension of the 60-day period after a bankruptcy filing to assume or reject an unexpired lease on nonresidential real property under 11 U.S. C. § 365(d)(4) when it files the motion within the 60 days, but the court does not ...
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OPINION Debtor-defendant, Michael G. Holzinger (“debtor”), has filed a motion for summary judgment. The underlying complaint was filed by plaintiff, Barry C. Arndt (“plaintiff”), and seeks a determination that the debt owed to him by debtor is • nondis-chargeable under 11 U.S.C. § 523(a)(6). A brief summary of the pertinent facts follows. Prior to the commencement of debtor’s bankrup...
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MEMORANDUM OF DECISION The central issue in this adversary proceeding concerns whether a bank which pays a standby letter of credit may be subrogated to the rights of the creditor to proceed on its security interest in debtor’s assets. Kaiser Steel Corporation, the debt- or, and Bank of America each seek a judgment declaring their respective rights. Shortly before trial GATX Leasing Corpo...
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MEMORANDUM OPINION The Court has considered the Defendant’s Motion for Relief from Summary Judgment and the Response thereto. The following constitutes the Court's mixed findings of fact and conclusions of law. Plaintiff NEAL R. ALLEN, TRUSTEE OF LIBERTY TRUST CO., filed a Motion for Summary Judgment on April 22, 1988. The date reflected in the attached Certificate of Service indicates that a copy...
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MEMORANDUM DECISION Plaintiffs filed this adversary proceeding on August 10, 1987, seeking a determination that Robert Steliga’s failure to provide them with an opportunity to renew a government land oil lease created a nondis-chargeable debt under § 523(a)(4) of the Bankruptcy Code. The debtor answered on September 1,1987, and moved for dismissal claiming, inter alia, that plaintiffs’ complaint f...
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MEMORANDUM OPINION AND ORDER On November 27, 1987, the Debtor filed her Chapter 7 petition. On February 2, 1988, the Debtor signed a Reaffirmation Agreement with United Air Lines Employees’ Credit Union (“United”), reaffirming a $17,012.07 debt secured by an automobile with a retail value of $5,760.00. United executed the Agreement on February 4, 1988. Debtor’s counsel executed a declaration pu...
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88 B.R. 860 (1988) In re Ernestine HARVEY, Debtor. Bankruptcy No. 83 B 15654. United States Bankruptcy Court, N.D. Illinois, E.D. July 14, 1988. *861 Gregory K. Stern, Chicago, Ill., for debtor. Mary H. LaMountain, Coakley & Smith, Oak Lawn, Ill., for Concordia Federal Bank for Sav. Jack McCullough, Chicago, Ill., Chapter 13 trustee. Marshall N. Dickler, Ltd., Arlington Hts., Ill., for 3950 N...
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MEMORANDUM DECISION The unsecured creditors committee moves for an order removing Attorney Ford Elsaesser from the management committee of the debtor and the appointment of a nominee of the creditors committee in place of Mr. Elsaesser. The basis of the motion is the contention Mr. Elsaesser is ineligible to serve as both counsel for the debtor and as a member of the management committee under the...
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ORDER Now before the Court is a Petition to Reopen this Chapter 7 case filed by the debtors. The matter came on for hearing July 12, 1988. Everett Martindale, Esq., appeared on behalf of the debtors. The debtors contend in their Petition to Reopen that they mistakenly failed to list twenty additional creditors with debts totaling $37,387.95 in pre-petition debts and that their now cl...
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MEMORANDUM OPINION ON MOTION OF FREDRIC J. SPENCER FOR APPROVAL OF SUBROGATION CLAIM INTRODUCTION The debtor was a small Illinois manufacturer. Claimant, Fredric J. Spencer was an officer of debtor, and is represented by debtor’s counsel. He filed a Proof of Claim, alleging that he was entitled to $27,-865.79 from debtor when the case was filed in 1982. The basis for the claim is the...
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MEMORANDUM DECISION ON TRUSTEE’S OBJECTION TO CLAIM NO. 37 FOR FEDERAL TAXES This matter came before this Court for hearing on the Trustee’s objection to Claim No. 37 of the United States for internal revenue taxes on December 15, 1987. Upon reviewing the testimony presented at the hearing, the objection and the letter briefs submitted by counsel, and being otherwise fully advised, this Court h...
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MEMORANDUM AND ORDER On February 15, 1984, plaintiffs Marian and Barbara Greer filed a bankruptcy petition under Chapter 11 of the Bankruptcy Code. Twelve days later, on February 27, 1984, Frank Magnin, County Collector of Perry County, Illinois (County), conducted a tax sale in which the 1982 taxes on plaintiffs’ real estate were sold to defendants F.B. Trust, Belle-East and D.D. Ballinger. Th...
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MEMORANDUM OF BENCH DECISION ON PROPOSED COMPROMISE, MOTIONS TO SUBSTITUTE AS PARTIES-PLAINTIFF, AND MOTIONS FOR ATTORNEY FEES This adversary proceeding objecting to the debtor’s discharge and alternatively objecting to the dischargeability of a particular debt came on for trial before my predecessor, the Honorable Rodney Bernard, Jr. In the complaint plaintiff Sylvery Guilbeau Russo sought not...
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MEMORANDUM DECISION Plaintiffs filed this adversary on October 12, 1982, seeking an order directing the trustee to execute and deliver to them an assignment and conveyance of a leasehold estate 1 (the “leasehold”) in the United *778 States Virgin Islands. The bases for their request were that the leasehold was partnership property rather than estate property or, al...
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MEMORANDUM OF BENCH DECISION ON ADVERSARY PROCEEDING TO DETERMINE DISCHARGEABILITY OF DEBT This adversary proceeding came on for trial on the complaint of Conley Joseph Dutreix and his wife Magdelen Dutreix, alleging non-dischargeability of a particular debt under Bankruptcy Code section 523(a)(2)(A), based on money obtained by false pretenses, false representation, or actual fraud. Plain...
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First Wisconsin National Bank of Milwaukee and First Wisconsin Financial Corporation, the defendants in the above-captioned case, have asked the court to dismiss the third cause of action in the trustee’s Third Amended Adversary Complaint, pursuant to Federal Rule of Civil Procedure 9(b) and Bankruptcy Rule 7009. Alternatively, the defendants seek entry of an order directing the plaintiff to fi...
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MEMORANDUM INTRODUCTION The matter before the Court is the adversary complaint filed on November 20, 1987 by Ganis Corporation of California (“Gan-is”) against the Debtors, Neil D. and Ann E. Jackson (the “Debtors” or the “Jack-sons”). Ganis asserts claims against the Debtors in its two count complaint under section 523(a)(2)(A) and (B) of the Bankruptcy Code. The claims arose in 198...
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MEMORANDUM OPINION INTRODUCTION This is a proceeding brought by the trustee in bankruptcy of Richard J. Oswald against the debtor, the debtor’s wife, Sylvia Oswald, and Fed One, F.A., holder of the first deed of trust, to ascertain the right of the trustee to sell the interest of both the debtor and the debtor’s wife in real estate located at 115 Queen Avenue, Park Place, Wheeling, W...
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MEMORANDUM OPINION ON DEBTOR’S MOTION FOR RULE TO SHOW CAUSE AND SANCTIONS UNDER 11 U.S.C. § 362(h) AGAINST CON-CORDIA FEDERAL SAYINGS AND LOAN ASSOCIATION Debtor has moved that Rule to Show Cause be entered and that sanctions under 11 U.S.C. § 362(h) be imposed against Con-cordia Federal Savings and Loan Association (“Concordia”). For reasons stated below that motion will be denied. Relevan...
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OPINION The complaint of the trustee, William G. McClanahan, seeks to avoid two preferential payments by the debtor to defendant, Lakeside National Bank. Defendant agrees that the payments were preferential transfers described in Bankruptcy Code section 547(b), but maintains that the transfers were immune from the trustee’s avoidance powers under section 547(c)(2) as payments in the “ordi...
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OPINION AND ORDER This matter is before the Court on a Motion filed by Anjomar, Inc. (hereinafter “Anjomar”) requesting an Extension of Time For Filing Notice of Appeal from the Order of the Bankruptcy Court dated June 23, 1988. For the reasons provided herein, we deny Anjomar’s Motion. Culmtech, Ltd. (hereinafter “Debtor”) initiated this action by filing a Motion to Assume Executory Contract...
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ORDER ON OBJECTION TO PLAN On May 4, 1988 a hearing on confirmation of plan was conducted in Council Bluffs, Iowa. Among the participants at the hearing were C.R. Hannan, the debtors’ counsel, and Anita L. Shodeen, the standing Chapter 12 trustee. The sole issue before the court is whether the debtors’ proposed deedback of certain farmland is subject to trustee’s fees. The court ordered b...
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ORDER Movant-Debtors filed the above-styled contested matter to avoid Respondent’s lien pursuant to 11 U.S.C. § 522(f)(2). A hearing was held on June 1, 1988, after which the Court took the matter under advisement and gave the Parties the opportunity to file briefs. The Court finds this matter to be a core proceeding within the meaning of 28 U.S.C. § 157(b)(2). After considering argument ...
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MEMORANDUM OPINION Now before the Court are two Complaints objecting to the debtor’s discharge in this Chapter 7 case filed pursuant to multiple subsections of 11 U.S.C. § 727 by the Trustee (AP 88-23) and a creditor, First State Bank of Rowlette of Texas (“Bank”) (AP 88-22). The Bank in the same adversary proceeding also filed a Complaint objecting to dischargeability pursuant to 11 U.S.C. § 5...
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MEMORANDUM THIS MATTER comes before the court after a trial on the issue of the discharge-ability of certain indebtedness owed by debtors to creditor, Citizens State Bank, Dorchester, Nebraska, (“Bank”), in adversary proceeding A86-306. Debtors, Andrew P. and Patricia A. Jacox, husband and wife, filed a joint petition under Chapter 7 of the Bankruptcy Code. The Bank originally named Patri...
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ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR STAY OF FURTHER PROCEEDINGS IN ADVERSARY PROCEEDING This adversary proceeding came on before the Court on March 15, 1988, upon Plaintiff’s motion for partial summary judgment and Defendant’s motion for a stay of proceedings pending the completion of certain state-court litigation involving Pl...
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MEMORANDUM & OPINION FACTS The issue before the Court is whether this Chapter 7 debtor’s student loan debt should be discharged pursuant to 11 U.S.C. § 523(a)(8)(B). The Debtor is a 51 year old divorced 1 female with four children, one of whom lives at home with her full time and one of whom lives at home with her while on break from college. 2 The Debtor owes t...
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*650MEMORANDUM AND ORDER In this Chapter 11 proceeding, we have for consideration an Application by the debtor for an Order confirming sales to American Plastics Equipment, Inc. and Carter Footwear, Inc. The Debtor’s Application was met with a number of objections and after a hearing was held on the application, together with the objections, this Court entered an Order confirming the sale on July ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court on the 16th day of August, 1988, upon the Complaint of Jerry-Sue Fashions, Inc. d/b/a Miss Tee For Me, J & L Concepts, Toll Free and American Sweats (the “debt- or”) to Avoid and Recover for Transfers of Property Pursuant to Sections 547 and 550 of the Bankruptcy Code, 11 U.S.C. §§ 547 and 550; and the Court havin...
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DECISION GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND REQUIRING FILING OR PROVIDING FOR DISMISSAL OF ADVERSARY PROCEEDING This proceeding which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(K) — proceedings to determine t...
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MEMORANDUM OF OPINION ON CONFIRMATION OF DEBTOR’S PLAN OF REORGANIZATION J.D. Burk’s dream has turned into a nightmare monster that threatens to devour him financially. The Plan of Reorganization proposed by the Debtor in this case is an attempt to pay something to the unsecured creditors and bring an end to the nightmare. Facts The Debtor’s only asset is the Cactus Hotel lo...
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This matter is before the Court on the resistance of the United States, on behalf of the Internal Revenue Service, to the debtor’s second proposed order approving settlement and action. This order stems from the parties’ resolution of their dispute over the amount of the IRS’s claim in the debtor’s bankruptcy. The debtor and the IRS, however, still disagree on the issue of present value payments ...
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*796 ORDER ON MOTION TO CONVERT Peoples Bank of Bloomington, Illinois (Peoples) and Mercantile Bank National Association (Mercantile) moved to convert this Chapter 11 case to a Chapter 7 case on September 1, 1987. The motion was heard in Des Moines, Iowa on October 27, 1987. Robert A. Gamble and Julie Johnson Mc-lean appeared on behalf of the debtor. Francis X. Buckley, Jr. appea...
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MEMORANDUM OPINION Pending before the court is an application by the debtor, Texas Sheet Metals, for an order allowing rejection of its collective bargaining with the Carpenters District Council of Houston and Vicinity, Millwright Local Union No. 2232, and the Sheet Metal Workers’ Local Union No. 54, AFL-CIO. After careful consideration of the pleadings, the evidence, and the relevant sta...
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FINDINGS OF FACTS, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matters under consideration are three (3) adversary proceedings filed by Carteret Savings & Loan Association, NCNB National Bank of Florida, and ITT Commercial Finance Corporation against the Debtors, Richard and Julie Moore. NCNB’s complaint sounds in six counts. In Counts I and II NCNB seeks to...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 6th day of April, 1988, and on the 3rd day of May, 1988, on (i) an application of the Bank of New England, N.A. (“the Bank”) by and through its attorneys, Gray, Plant, Mooty, Mooty & Bennett, P.A. (“Gray, Plant”), for an order allowing and authorizing the payment of administrative expenses pursuan...
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OPINION AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEBTOR’S DISCHARGE This matter is before the court upon plaintiff’s motion for summary judgment upon its amended complaint against Debt- or/defendant to deny Debtor’s discharge pursuant to 11 U.S.C. § 727(a). Upon consideration thereof, the court finds that plaintiff’s motion for summary judgment should be gran...
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ORDER ON REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE BY CAPITAL AMERICA, INC. THIS CAUSE came on for hearing with notice to all parties in interest upon an Amended Administrative Proof of Claim, treated as a Motion for Payment of Administrative Expense filed by Capital America, Inc. (Capital America), creditor in the above-captioned Chapter 11 case. The Court has considered the Motion, ...
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ORDER IMPOSING SANCTIONS THIS IS a Chapter 7 case, and the matter under consideration in this adversary proceeding is the amount of sanctions to be imposed against Charles R. Mayer (Mayer) for his willful violation of the permanent injunction granted as part of the general discharge of the Debtors, Paul and Myrtle Miller, imposed by § 524(a)(2) of the Bankruptcy Code. On January 4, 1988, this...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a contested discharge proceeding and the matters under consideration are two claims set forth in the adversary proceeding commenced by Natalie Smolik (Plaintiff) against Ross Reinhart, Bonnie L. Reinhart (Debtors) and Buddy Ford as Trustee. The original complaint consists of two counts. In Count I the Plaintiff seeks a determinati...
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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 a Complaint filed by ITT Financial Services (ITT) seeking a determination that a debt in the undisputed principal amount of $2,659.00 owing to ITT by Robert Finley and Rita Ann Fowler (Debtors) should be determined to be nondischargeable pursuant to § 523(...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on Debtor’s Motion to Set Aside Section 341 Meeting and Deadline to File Dis-chargeability Complaints. The Debtor objected to the United States Trustee of Colorado setting a second Section 341 meeting hearing date and a second bar date by which dischargeability complaints were to have been filed, after the Debtor’s Chapter 7 ...
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AMENDED OPINION HOLDING DEBT DISCHARGEABLE I. Introduction This adversary proceeding raises the issues of whether the debtors’ false financial statements and other misrepresentations are sufficient to render the resulting debt owing to plaintiffs nondischargeable under Bankruptcy Code § 523(a)(2)(A) or § 523(a)(2)(B), and whether the claim is barred by the applicable statute of l...
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ORDER ON OBJECTION TO CLAIM NO. 89 OF ATTORNEY’S TITLE INSURANCE FUND THIS CAUSE came on for hearing upon the Debtors’ Objection to Claim No. 89 filed by Attorney’s Title Insurance Fund. At the duly scheduled and noticed hearing on the Objection to the Claim, the Court heard argument of counsel, considered the record, and finds that the pertinent facts relevant to a resolution of the controversy ...
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DECISION AND ORDER DENYING MOTION OF DEBTORS TO AVOID MECHANICS’ LIEN OF NATIONWIDE ROOFING AND SHEET METAL, INC. PROCEDURAL POSTURE This matter is before the court upon a motion of the debtors/movants, Shad E. and Mary E. Ramsey, to avoid under 11 U.S.C. § 522(f) a mechanics’ lien, which is held by the respondent, Nationwide Roof *681 ing and Sheet Metal, Inc., and encu...
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ORDER At Butte in said District this 22nd day of August, 1988. On November 13, 1987, the Bank of Norfolk filed a Motion for Determination of Secured Status. On December 21, 1987, the Debtors submitted a Memorandum In Support Of Debtors’ Argument that it has been released from any obligation owing to the Bank of Norfolk by operation of U.C.C. § 3-606. The Bank of Norfolk did not filed a response. A...
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OPINION AND ORDER DENYING MOTION FOR SUBROGATION This matter is before the court upon the trustee’s motion requesting that this court rule upon the motion for subrogation of the Internal Revenue Service claim on behalf of William G. Henzler and Lynne D. Henz-ler and objections thereto by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and...
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83 B.R. 914 (1988) In re L.P. BRITTON, Jr., d/b/a Britton Trading Co., Britton Trading Co., Inc., St. John's Farms and Gay H. Britton, Debtors. In re Jennings Bryan TINGLE, Sr., Fannie Rowe Tingle, Debtors. In re Jennings Bryan TINGLE, Jr., Debtor. In re J.B. BERRY and Pauline M. Berry, Debtors. Bankruptcy Nos. 86-03019-MO2, 87-00959-MO4, 87-00960-MO4 and 87-00841-MN4. United States Bankruptcy Co...
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MEMORANDUM OPINION AS TO LEASE Debtor’s landlord for its principal offices, 20251 Century Associates Limited Partnership (“Landlord”), seeks relief from the automatic stay of 11 U.S.C. § 362(a) to permit it to evict Debtor. Debtor has countered by moving pursuant to 11 U.S.C. § 365(d)(4) for an extension of time to assume or reject Landlord’s lease dated December 1, 1983 (the “Lease”). ...
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MEMORANDUM DECISION These three Chapter 12 cases present a recurring problem regarding plan treatment of tax claimants. All three original plans proposed to pay the entire amount of pre-petition tax claims in deferred cash payments without interest. Objections were filed to the original plans requesting that the claims be paid with interest. The plans were confirmed subject to these objec...
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DECISION AND ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT PROCEDURAL POSTURE This matter is before the court upon a motion by defendant White Allen Chevrolet *683for summary judgment against plaintiff/debtor Louvenia R. Robinson. Plaintiffs counsel has not filed a memorandum in response. Defendant’s motion is not accompanied by an affidavit or other supporting document and, as such, is th...
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MEMORANDUM AND ORDER Debtors, Mark and Patricia Maschhoff, received a total of $64,314.00 from the sale of farm products and from agricultural program payments in 1987, the year prior to the filing of their Chapter 12 bankruptcy petition. In addition, debtors received non-farm income of $53,479.00 from wages and salaries, interest income, tax refunds and capital gains in 1987. At issue is incom...
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MEMORANDUM OF DECISION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY ON REMAND FROM BANKRUPTCY APPELLATE PANEL The complaint to determine discharge-ability came on for trial on June 26, 1986. The Court issued its written memorandum of decision on September 30, 1986; an order finding the debt to be nondischargeable was filed on October 17,1986. Debtor filed his notice of appeal on October 14, 1986...
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DECISION ON MOTION FOR SUMMARY JUDGMENT The debtor has filed two motions for summary judgment claiming that no factual dispute exists regarding the two adversary proceedings and other various actions brought on by the trustee against the debt- or. The trustee, in her adversary proceeding, is seeking a determination that a lease, which is the only remaining asset of the debtor in addition to appro...
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OPINION INTRODUCTION Various creditors of the bankruptcy estate appeal a ruling denying an extension of time to file a complaint to determine *610 dischargeability. They and the trustee had agreed to an extension, but did not reduce their stipulation to writing. Appellants did not file their motion for extension of time until after the expiration of the 60-day period prescribed by B.R. 4007...
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MOOREMAN, Bankruptcy Judge: OVERVIEW By this appeal, appellant Willamette Waterfront (Willamette) seeks to set aside Victoria Station’s (debtor) assumption and assignment of a lease. The fundamental dispute in this case is over the debtor’s obtaining three (3) separate orders extending the time in which to assume or reject certain unexpired leases of nonresidential real property. ...
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DECISION ON MOTION TO CONSIDER PROPOSED SETTLEMENT BETWEEN TRUSTEE AND BATEMAN EICHLER The trustee in bankruptcy of Leonard Stuart Levy and Jarnel Financial Services, Ltd. has moved for an order approving the settlement of an action against a stock brokerage firm, Bateman Eichler, Hill Richards, Inc. (“Bateman Eichler”), which is one of the various defendants sued by the trustee for having allege...
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MEMORANDUM OPINION Chapter 7 debtors James Kevin Murray, d/b/a Murray Construction and Lori Jean Murray (“debtors”) filed a complaint against creditor Great Valley Savings Association (“Great Valley”) in an effort to restrain Great Valley from continuing foreclosure proceedings on debtors’ residence. On Great Valley’s motion to dismiss, we find that debtors have failed to state a claim up...
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MEMORANDUM OPINION On for consideration is Debtor’s Amended Objection to Claim. The Court is asked to determine whether the claim in question is secured by virtue of a prejudgment writ of garnishment issued in conjunction with a state court action prior to the filing of bankruptcy, garnishing certain coins and jewelry belonging to the Debtor. In making this determination, the Court is pre...
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DECISION ON FEE APPLICATION OF DERIVATIVE ATTORNEYS The plaintiffs’ attorneys in state court derivative actions commenced on behalf of Texaco, Inc. have filed fee applications in the Texaco reorganization. These Derivative Attorneys seek $10,000,000 in fees and $165,630.84 in disbursements. The objec-tants, consisting of the equity holders and creditors committee, as well as individual sh...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT 1 I Statement of Proceedings This adversary proceeding came on for a bench trial on September 15,1987 pursuant to Pretrial Order dated July 13, 1987. The complaint of American State Bank (hereinafter: “Plaintiff”) filed August 1, 1986 asserts in the alternative that the Debtors, Charles Rex Montgomery and Maxine ...
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MEMORANDUM DECISION At issue is whether a lawsuit for legal malpractice may be claimed exempt pursuant to Cal.Civ.Proc.Code § 704.140. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and *846 § 157(b)(1) and General Order No. 312-D of the United States District Court, Southern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A)...
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ORDER This matter came before the Court on motion of Norwest Financial Services (Creditor) to reconsider this Court’s order of August 20, 1987, which found that the nonpossessory, nonpurchase-money security interest of lienholder Norwest Financial *771Services in the debtors’ personal property should be avoided to the extent that said lien impaired debtors’ exemptions to such personal property. De...
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*886MEMORANDUM OPINION AND ORDER This matter came for hearing on June 30, 1988, on plaintiff Burger King Corporation’s motion to reconsider, alter, or amend order of dismissal, and motion to file response out of time. The plaintiff appeared through counsel, J.B. King. The defendant, John Ercy Wilkinson, appeared through counsel, Phillip Turner. FINDINGS OF FACT After hearing statements of counsel,...
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DECISION ON MOTIONS OF THE STATE OF LOUISIANA, LA-FOURCHE PARISH SCHOOL BOARD AND THE LOUISIANA LAND AND EXPLORATION COMPANY FOR CHANGE OF VENUE The State of Louisiana (the “State”) and various other parties to Louisiana oil and gas agreements with the debtor, Texaco Inc., have moved to transfer the venue of Texaco’s motion for preservation of its rights under the agreements. In addition ...
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OPINION Presently before the court is a complaint filed by plaintiff, Arun J. Shingala, P.C. (“plaintiff”), requesting that we impose a lien on certain funds presently held by the trustee for the benefit of the bankruptcy estate. Plaintiff and the trustee have stipulated to the following relevant facts. 1 On or about December 4, 1983, plaintiff loaned $90,000.00 to debtor, Al...
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MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT The Plaintiff Debtor Pettibone Corporation (“Pettibone”) manufactured and sold certain equipment before filing its related petition for relief 'under Chapter 11. Defendant Edwin R. Ramirez (“Ramirez”) was injured in an accident involving that equipment aft...
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ORDER This case came before the Court on May 11, 1988 for a hearing on the above-referenced debtor’s motion to have certain payments which he has made to the Equitable Life Assurance Society of the United States (“the Equitable”) refunded to him. The payments in question have been made by the debtor pursuant to an order entered on April 21, 1987 which required the debtor to pay the Equitable ...
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ORDER On March 18, 1988, Dr. Peter G. Lazar-nick, a creditor in the above-referenced Chapter 7 case, filed a motion which sought the full payment of his claim from certain funds held by the attorney for the debtors. In response, on March 23, 1988, the debtors filed an objection to the doctor’s claim, which requested the Court to deny the doctor’s secured status as to the funds and to allow the ...
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88 B.R. 997 (1988) In re KROH BROTHERS DEVELOPMENT COMPANY, Kroh Brothers Realty Company, 8880 Ward Parkway Associates, Kroh Investments I, Inc., Debtors. Nos. 87-00640-1-11, 87-00641-1-11, 87-00643-1-11 and 87-01263-1-11. United States Bankruptcy Court, W.D. Missouri. August 9, 1988. Paul Hoffman, Kansas City, Mo., and Mark Lieberman, Rosenthal & Schanfield, Chicago, Ill., for Mut. Benefit L...
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ORDER ON MOTION TO AMEND AUTOMATIC STAY THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion to Amend the Automatic Stay [sic] treated as a Motion to Lift Automatic Stay filed by a creditor, Kroslak Restaurant & Bakery Equipment, Inc. (Kroslak). At the time the Motion was filed, this was a Chapter 11 case, but it has since converted to a Chapter 7 case. It i...
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MEMORANDUM AND ORDER By an oral Order entered on July 28, 1988, this Court overruled a number of objections filed to an Application by the debtor for an Order Confirming Sales to American Plastics Equipment, Inc. and Carter Footwear, Inc. The factual and procedural history of this case is sufficiently detailed in a Memorandum in Support of the Order entered on the record and filed August ...
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I This case presents the issue of whether the Debtor’s payments to two subcontractors constitute voidable preferences where in exchange, the subcontractors released their unsecured claims against the Debtor as well as their claims against a surety company. The Bankruptcy Court found that the Debtor’s payments were exceptions under § 547(c)(1) of the Bankruptcy Code (“Code”) and therefore w...
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OPINION Before MOOREMAN, YOLINN and JONES, Bankruptcy Judges. This appeal arises out of the bankruptcy court’s order granting sanctions against the appellant law firm (Fortune & Faal) in the amount of $4,000. The sanctions were awarded pursuant to 11 U.S.C. § 362(h) for willful violation of the automatic stay. The essence of the alleged violation was that appellant had commenced a sta...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT ON COMPLAINT TO AVOID ALLEGED PREFERENTIAL TRANSFERS Andrew J. Maxwell (“Trustee” or “Plaintiff” ) seeks to avoid and recover two alleged prepetition transfers as preferences, pursuant to 11 U.S.C. § 547(b). He has moved for Summary Judgment. Paceset *752 ter Steel Service', Inc. (“Pacesetter”) cross motioned for Summar...
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MEMORANDUM OPINION This proceeding has been brought by the state court appointed guardian for Sally Borbidge, the husband/debtor’s mother, seeking to have a debt declared nondis-chargeable pursuant to 11 U.S.C. § 523(a)(4) for fraud or defalcation in a fiduciary capacity. I. Following the close of plaintiffs case, the defendants moved for involuntary dismissal pursuant to Fed.R....
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ORDER In this Chapter 11 case, hearing on confirmation of the Debtor’s second and final Plan of Reorganization together with objections filed by John Hancock Mutual Life Insurance Company (Hancock) and Larry Semenza (Semenza) was held June 16,1988. Post hearing memorandums have now been filed by the Debtor and objecting creditors which raise issues dealing with acceptance and cure of defa...
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*466 ORDER DENYING STAY RELIEF This matter is before the Court on the motion of Midgley Associates Architects, Inc. for relief from stay to foreclose on a mechanic’s lien, and on the debtor’s response thereto. Debtor appears by Mark G. Stingley and Gregory I. Azorsky of Linde Thomson Langworthy Kohn & Van Dyke, P.C. Midgley Associates appear by Robert W. McKinley of Swanson, Midg...
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DECISION This adversary proceeding was commenced by the debtor, Jewish Hospital and Medical Center of Brooklyn (“JHMCB”), against the State of New York (“State”) for approximately $2.9 million of rendered medical services pursuant to a post-petition agreement (“Agreement”). The court *46finds that a provision within the Agreement, shortening the New York statute of limitations period, is reasonab...
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ORDER ON MOTION FOR IMPOSITION OF SANCTIONS AND FOR CLARIFICATION OF ORDER OF DISMISSAL THIS IS a dismissed Chapter 11 case whose dismissal effect has been suspended pending the resolution of a Motion to Impose Sanctions filed by Savers Federal Savings & Loan Association (Savers Federal) and a Motion for Clarification of Order of Dismissal filed by Security Properties, Inc. (SPI). The Motion file...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTIONS THIS IS a Chapter 7 case and the matters under consideration are an Amended Objection to Listed Exempt Property filed by Lawrence S. Kleinfeld, the Trustee in this Chapter 7 case and an oral Objection to the Amended Objection made by Gary Froid, the Debtor in this ease, on the ground that the Amended Objection was not timely filed. The Court h...
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*506 ORDER ON MOTION FOR SANCTIONS THIS IS a dismissed Chapter 13 case and the matter under consideration is a Motion filed by Brenda Smith, as Personal Representative of the Estate of Deanna Krystyn-iak (Smith), who séeks an imposition of sanctions on Mr. and Mrs. Cluett (Debtors). The Motion is based on Bankruptcy Rule 9011 and alleges that the Debtors, by signing their Motion to Convert th...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE came on for hearing with notice to all parties in interest upon a Partial Motion for Summary Judgment filed by Santo and Irma D’Alfonso and Italia Abate (Plaintiffs), the Plaintiffs in the above-captioned adversary proceeding. It is the contention of the Plaintiffs that no material issues of fact exist as to their priority position as to cert...
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ORDER ON MOTION FOR REMAND THIS IS a Chapter 7 liquidation case and the immediate matter under consideration involves the issue of whether this Court must abstain from adjudicating a state law claim arising from a contract that was made after the Debtor filed its Petition for relief. The issue is presented in the context of a Motion for Remand which, notwithstanding its misnomer, shall be treat...
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*22MEMORANDUM-DECISION, FINDINGS OF PACT, CONCLUSIONS OF LAW AND ORDER On December 10, 1987, Northeast Dairy Cooperative Federation, Inc. (“NEDCO”) filed an objection to the allowance of the Second Amended Proof of Claim (“Proof of Claim”) filed by the Trustees of the Industry and Local 338 Pension and Welfare Funds (“Funds”), as modified by correspondence from the Fund’s Counsel, Cohen, Weiss & ...
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OPINION AND ORDER I. On December 17, 1987 this Court held a continued hearing on a motion to convert or dismiss filed by the United States on behalf of its Internal Revenue Service. At such hearing the various interested parties presented their respective positions as to conversion of the case to a Chapter 7 liquidation vis a vis a dismissal. In addition, the debtors, through counsel...
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MEMORANDUM OPINION Introduction The plaintiff filed a complaint in this adversary proceeding to determine the dis-chargeability of a debt in the sum of $73,-780.89. The debt is evidenced by a state court judgment rendered in Wisconsin. Shortly before this adversary proceeding was scheduled for trial, the plaintiff filed a motion for summary judgment contending that the prior Wisc...
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MEMORANDUM OPINION These consolidated adversary proceedings are before the Court on plaintiff’s motion for partial summary judgment as to the first cause of action against the defendants on the limited issue of liability for the return of all consideration received by the defendants in connection with the sale of their partnership interests. Also before the court is defendants’ cross-motion for...
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OPINION Precision Carwash Corp. (“Precision” or “Debtor”) is moving for summary judgment on its motion to reclassify the claim of William Engle as a general, unsecured claim. William Engle has filed a claim for $50,000 as an administration expense. Reclassification is requested on the ground that the services for which Engle seeks payment were all rendered prior to January 22, 1987, the d...
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90 B.R. 521 (1988) In re Dennis C. YOUNG and Patricia G. Young, Debtors. Lois McKEE, Plaintiff, v. Dennis C. YOUNG, Defendant. Bankruptcy No. 84-644-ORL-BK-GP, Adv. No. 84-148. United States Bankruptcy Court, M.D. Florida, Orlando Division. September 6, 1988. *522 Andrea Ruff, Orlando, Fla., for defendant. J. Gordon Blau, Orlando, Fla., for plaintiff. FINDINGS OF FACT AND CONCLUSIONS OF LAW GEOR...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Motion for Administrative Expense filed by Ken-Caryl Ranch Master Association, Inc. (“Ken-Caryl”). On June 14, 1985, the Debtors filed their Chapter 11 petition. Included in their assets was their personal residence in the Ken-Caryl Ranch subdivision. When the Debtors took title to that property, they became bound by the...
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MEMORANDUM OPINION The Debtors in this Chapter 13 case purchased a co-operative apartment from Charles and Mary Cole, who financed that sale by taking a $60,000 note, secured by assignments of the shares in the co-operative corporation and the proprietary lease of the apartment. The Debtors defaulted, but now seek to save their apartment by proposing a plan that will cure their default. The Col...
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90 B.R. 375 (1988) In re Jack E. FOWLER and Ginger Fowler, Debtors. Bankruptcy No. 87 B 10111. United States Bankruptcy Court, N.D. Illinois, E.D. August 26, 1988. James L. DeVries, Blue Island, Ill., for debtors. Phillip D. Levey, Chicago, Ill., Trustee. Joel A. Schechter, Grossman, Mitzenmacher & Schechter, Chicago, Ill., for Northern Trust Co. MEMORANDUM OPINION AND ORDER DAVID H. COAR, B...
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MEMORANDUM OPINION and DECISION This matter comes on for hearing upon stipulated facts. The court finds that the instant action is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(k) and that jurisdiction and venue are proper pursuant to 28 U.S.C. §§ 1334 and 1409(a), respectively. The court makes the following findings of fact and conclusions of law as required by Bankruptcy Rule...
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90 B.R. 291 (1988) In re ACADEMY ANSWERING SERVICES, INC., Debtor. Bankruptcy No. 86-03982. United States Bankruptcy Court, N.D. Ohio, E.D. July 22, 1988. Robin L. Greenhouse Trial Atty., Tax Div., U.S. Dept. of Justice, Washington, D.C., for I.R.S. Kathryn L. Roseen, Diane Blocker, Sindell, Rubenstein, Einbund, Pavlik & Novak, Cleveland, Ohio, for debtor. MEMORANDUM OPINION AND ORDER RICHAR...
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90 B.R. 298 (1988) In re Richard GRANGER and Rose Marie Granger, Debtors. Malcolm L. GOODMAN, Trustee, Plaintiff, v. Carl GRANGER, et al., Defendants. Bankruptcy No. 86-0271, Related Case: 86-02181. United States Bankruptcy Court, N.D. Ohio, W.D. July 27, 1988. Malcolm L. Goodman, Marion, Ohio, trustee. Carl Granger, Marion, Ohio, pro se. Theodore P. Frericks, IV, Marion, Ohio, for Iva Lessley. J...
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MEMORANDUM AND DECISION This case was commenced on October 18, 1985, by the filing of a bankruptcy petition in Chapter 13. On January 8,1986, a creditor, Regional Transit Service (“RTS”), filed a $5,163.20 claim in the case, and on February 26, 1988, the Debtor objected to the claim. A hearing on the objection was held May 23, 1988. Following are the Court’s findings of fact and conclusions of law...
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MEMORANDUM OPINION This case is before the Court upon cross motions for summary judgment filed by the plaintiff, Scott W. Putney, Trustee (“Trustee”), and the defendants, Don H. Dalton and Nancy M. Dalton. The issue presented is whether the trustee may avoid an unrecorded and allegedly defective mortgage on debtors’ homestead and preserve the benefits for the estate. Upon the evidence presented at...
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MEMORANDUM OPINION ON FEE APPLICATIONS The Court has before it for decision the amount which should be set for the fees for the trustee and the trustee’s attorney. The debtor filed a voluntary Chapter 7 case in this Court. According to the schedules of assets filed by the debtor this appeared to be a no asset case. Jules S. Cohen was appointed as trustee. He employed himself as attorney for t...
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*315 MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on the motion of Fulton Typewriter Store, Inc. (“FTS”) for reconsideration and amendment of or relief from the Court’s Order dismissing the bankruptcy case of Gene A. Rebeor, f/d/b/a Radisson Sun Studio, an officer of Raddison Sun Studio, Inc., Sunsa-tions Ltd. and Fulton T...
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ORDER At Butte in said District this 30th day of August, 1988. On April 25, 1988, the Debtors filed a Motion for Release of Funds. Through this motion, the Debtors contended that the funds received by Richard Albrecht as settlement for a claim under the Federal Employers’ Liability Act, 45 U.S.C. § 51 (hereinafter referred to as FELA), qualified as *860 disability benefi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ' This case is before the Court upon confirmation of debtors’ Chapter 12 Plan and upon Motion to Dismiss filed by South Atlantic Production Credit Association (“South Atlantic”). Upon evidence presented at the hearings held April 19, 1988, and June 16, 1988, the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Thi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ' This adversary proceeding is before the Court upon the complaint filed by Swim Aid of Palm Beach County, Inc., and Thomas Hannon, Jr., seeking an exception to discharge under 11 U.S.C. § 523(a)(2)(A) for monies allegedly obtained upon false pretenses, false representations, and actual fraud. A trial of this matter was held July 21, 1988, and upon the ev...
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MEMORANDUM OPINION AND ORDER I Statement of Proceedings The Plaintiffs filed their nondischarge-ability complaint versus the Defendant, Donald Joseph Guy (hereinafter: “Debtor”) under the above-captioned adversary proceeding number on June 14, 1985 alleging that a certain indebtedness to them by the Debtor is nondischargeable pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). ...
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OPINION This appeal arises from the bankruptcy court’s order reopening the debtor/appel-lee’s Chapter 7 case and allowing the avoidance of appellant’s lien pursuant to 11 U.S. C. § 522(f). 1 FACTS The debtor filed a Chapter 7 petition on April 16, 1985, and indicated in his schedules that he had no secured consumer debts. The debtor, however, had previously entered into a promissory note ...
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This appeal arises out of the bankruptcy court’s decision in In re Cleveland, 64 B.R. 810 (Bankr.S.D.Cal.1986), which determined that pursuant to 42 U.S.C. § 294f(g), Health Education Assistance Loans (HEAL Loans) are nondischargeable under 11 U.S. C. § 1328(a). The basis of the decision was that § 294f(g) provides for a limited exception to the “super discharge” of § 1328(a) in the ...
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ORDER DENYING SECTION 1129 “CRAMDOWN” THIS CAUSE was heard by the Court on Wednesday, July 13, 1988, on the debtor’s Motion for Cramdown pursuant to Bankruptcy Code Sec. 1129, after the debtor failed to receive the requisite number of acceptances of his proposed Second Amended Plan of Reorganization. The Court heard arguments from counsel for the debtor, counsel for various creditors, and...
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*295 MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Debtor’s Motion for Turnover, for Accounting, and for Damages; and the United States of America’s Motion for Relief from the Automatic Stay. At the Hearing, the Parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court ...
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MEMORANDUM OPINION Four interrelated matters are presently before this court on motions and a complaint involving debtors Leroy H. and Christine E. Kehm (“debtors”) and creditor Citicorp Homeowners Service (“Citicorp”) 1 : (1) Debtors’ 11 U.S.C. § 506(a) complaint to determine the extent of Citicorp’s secured status in property utilized as debtors’ principal residence (“pr...
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ORDER DENYING CONFIRMATION AND CONVERTING CASE TO CHAPTER 7 A confirmation hearing was held May 16 on this chapter 11 debtor’s plan. A Second and a Third Amended Plan were filed dur *545 ing the next five weeks (CP 50, 52). Confirmation of the last plan is now denied. The plan provides six classes. Classes 1, 2 and 6 are unimpaired. Rejection by Impaired Class Class 4 has accepted the...
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90 B.R. 565 (1988) In re Daryl Clifford PERRY, Debtor. Daryl Clifford PERRY, Plaintiff, v. UNITED STATES of America, INTERNAL REVENUE SERVICE, Defendant. Bankruptcy No. 88-01560-BKC-TCB, Adv. No. 88-0343-BKC-TCB-A. United States Bankruptcy Court, S.D. Florida. August 31, 1988. Jordan E. Bublick, P.A., Miami, Fla., for plaintiff. Robert L. Roth, trustee. Attorney Gen. of the U.S., Washington, D.C....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF ORDER AUTHORIZING AND APPROVING SETTLEMENT OF VALUE VACATIONS LITIGATION AND RELATED CLAIMS AGAINST ARROW THIS MATTER was heard by the Court on March 1, 1988 at 10:30 a.m. on the Motion of Arrow Air, Inc. and the Committee of Unsecured Creditors for Approval of Settlement of Value Vacations Litigation and Related Claims Against Arrow. The Co...
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OPINION AND ORDER Thomas P. Pendergrast, Jr. (hereinafter “Debtor”) commenced this proceeding to determine the dischargeability of an educational loan pursuant to 11 U.S.C. § 523 of the Bankruptcy Code. For the reasons set forth herein, we find the debt is nondis-chargeable. FINDINGS OF FACT The debtor filed a Chapter 7 bankruptcy on or about May 14, 1987. Prior to the bankruptc...
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MEMORANDUM DECISION ON OPPOSITIONS TO TRUSTEE’S DETERMINATIONS These matters were considered at hearings on June 22 and 23, 1988 upon customer-claimants’ oppositions to the trustee’s determinations of their customer claims. A listing of the customer-claimants is included in the two notices of hearing. This proceeding was commenced in the District Court on May 12, 1987 under the Secur...
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MEMORANDUM DECISION AND ORDER AWARDING ADMINISTRATIVE EXPENSES TO OWNER FOR RENT This matter came before the Court upon the Application for Allowance and Payment of Administrative Expense Claim by C. William Woodford, Aline M. Woodford, Jerry Black and Vicky Black (hereafter referred to as “Owners”). The Court held a hearing on February 29, 1988 continued to March 28, 1988 at which t...
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MEMORANDUM DECISION AS TO COUNT 1 The complaint seeks denial of discharge under five subsections of 11 U.S.C. § 727. Alternatively, it seeks exception from discharge under three subsections of § 523. Additionally, it objects to the debtor’s claimed exemptions. At trial and without objection, exception from discharge (count 1) was deferred (CP 14), because it would have been mooted by denial of dis...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On October 27, 1987, the Court heard oral argument of three motions brought on by S.J. Groves & Sons Company (“Groves”) and Margaret C. Peters, d/b/a M.C. Peters Construction Company (“Debtor”) within the adversary proceeding initiated by Groves on behalf of itself and those similarly situated against the Debtor and three...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on the complaint for reclamation of property, filed by Lawrence Pharmaceuticals, Inc. (“Lawrence”) against the Debtor Best Buy Drugs, Inc. (“Best Buy”) and heard on April 11, 1988. The complaint seeks the reclamation of personal property or other relief pursuant to 11 U.S.C. 546(c) and Section 672.702 of the Florida...
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MEMORANDUM OPINION RE MOTION TO APPOINT SEPARATE DEBEN-TUREHOLDER COMMITTEE AND RELATED RELIEF This case came before the court for an evidentiary hearing on July 29, 1988 upon a motion filed by individual debentureholders relating to their alleged under-representation upon the existing Official Unsecured Creditors’ Committee (hereinafter “committee” or “creditors’ committee”) in this chap...
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MEMORANDUM DECISION AND ORDER DENYING UNITED STATES OF AMERICA’S MOTION TO ALTER AND AMEND This matter came before the Court for hearing on April 12, 1988 on the United States of America’s motion to alter and amend this Court’s order dated March 16, 1988 granting the ex parte motion of Arrow Air, Inc. (“Arrow Air”), the reorganized debtor, for authorization to disburse from the Creditors’ Fund pa...
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OPINION AND ORDER The Uniform Commercial Code, Article 9 is generally looked to as law in resolving issues concerning the description and perfection of security interests in personal property. Such is the issue before us. On January 26,1984, C.C. & Co., Inc., t/a Pete Smith’s Surf Shop granted a security interest in all fixtures, personal property, inventory and accounts receivable, ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER was tried before the Court on April 21 and June 24, 1988, upon the Complaint to Determine Dischargeability of Debt and for Entry of Final Judgment of Damages filed by Plaintiff, American Investment Bank, N.A. (“AIB”) against the Debtor, Arthur Nicholas Hosking, III (“Hosking”). Having reviewed the evidence, having observed the demeanor o...
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ORDER ON REMAND The District Court has reversed and remanded the Judgment in this adversary proceeding: “to consider [under 11 U.S.C. § 727(a)] Sharon Mart’s invocation of her Fifth Amendment privilege against self-incrimination and interspousal privilege as grounds for denial of discharge.” (CP 37 at 19-20). The parties were heard July 12. They agreed that no further evidence i...
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MEMORANDUM DECISION AND ORDER DENYING MOTION OF FSLIC FOR RECONSIDERATION AND FOR NEW TRIAL This matter came before the Court on Tuesday, July 5, 1988 on the Motion of the FSLIC for Reconsideration and for New Trial. By its motion, the Federal Savings and Loan Insurance Corporation as receiver for Sunrise Savings and Loan Association (“FSLIC”) seeks reconsideration of the Court’s May 9, 1988 Orde...
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ORDER GRANTING MOTION TO COMPEL PAYMENT OF ADMINISTRATIVE EXPENSE THIS CAUSE came before the Court on January 12, 1988, and April 20, 1988 on the motion of Silvia Romero (“Romero”) to compel the payment of administrative expense. The Court heard testimony from various witnesses, including Romero, Robert Sucher, Veronica Sammy, Vera Lee Mitchell Foster, Trustee Gui Govaert, and by depositi...
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MEMORANDUM OPINION ON ORDER OF REMAND This case was tried by my predecessor, the Honorable Joseph A. Gassen. It was appealed and remanded before I was appointed to the bench. On or about August 14, 1985, a few months after my appointment, the successful appellant, Sombrero Reef, Inc., made a “Motion for Order Setting Aside and Withholding Order of Remand,” in the United States District Court, Appe...
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MEMORANDUM OF DECISION ON TRUSTEE’S OBJECTION TO CLAIM The trustee objects to the claim of Chase Manhattan Bank, N.A. (Chase), asserting that the underlying debt was released by novation.1 BACKGROUND On February 7, 1980, the debtor (Stader) filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code and listed in Schedule A-3 an unsecured, undisputed debt to Chase in the amount o...
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MEMORANDUM OPINION AND ORDER 1 I Statement of Proceedings Clifford and Linda Demoff (hereinafter: “Debtors”) filed a chapter 13 bankruptcy on June 26, 1987. Within their plan, the Debtors attempted to cure an arrearage owed to Provident Institution for Savings (hereinafter: “Provident”). Provident is secured by a mortgage on the Debtors’ principal residence. The Debt...
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MEMORANDUM OF DECISION ON DEBTORS’ OBJECTION TO ALLOWANCE OF CLAIM I. Joseph A. Marino, Jr. (Joseph) and Elizabeth A. Marino (Elizabeth) are debtors in a chapter 13 case in which there is a confirmed plan. The present proceeding arises from the debtors’ objection to the allowance of a claim in the amount of $86,-929.47 filed by GLB Associates (GLB). The claim, filed on December 21, 1...
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90 B.R. 126 (1988) In re Wilton B. JACKSON, Janet G. Jackson, t/a Greenbank Farm, A Partnership, Debtors. In re Wilton B. JACKSON, and Janet G. Jackson, Individually, and as partners in Greenbank Farm, Debtors. In re Walter B. JACKSON, and Carol E. Jackson, husband and wife, individually, and Walter B. Jackson, as a partner in Greenbank Farm, Debtors. In re James R. LEONARD, Jr., Trustee, Plainti...
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MEMORANDUM AND ORDER James D. Walker, Jr., trustee in the underlying chapter 7 case filed this adversary proceeding pursuant to 11 U.S.C. § 542 seeking turnover of property. At the call of this case for trial, counsel for the parties stated that there were no factual issues in dispute and that this matter could be submitted on a stipulation of facts and briefs. There is some abiguity as t...
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90 B.R. 554 (1988) In re Francis T. RYAN, a/k/a Frank Ryan, Debtor. Alex W. DREYFOOS, Jr. and Joseph I. O'Neill, Jr., Plaintiffs, v. Francis T. RYAN, Defendant. Bankruptcy No. 88-00912-BKC-TCB, Adv. No. 88-0275-BKC-TCB-A. United States Bankruptcy Court, S.D. Florida. August 15, 1988. *555 Alley, Maas, Rogers, Lindsay & Chauncey, Theodore A. Jewell, Palm Beach, Fla., for plaintiffs. Michael J....
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CONFIRMATION ORDER A confirmation hearing was held June 28 on a liquidation plan filed by R.E. Pyle as the New York bankruptcy trustee for Pero Farms, Inc. (not to be confused with this debtor). 1 The only filed objection (CP 121) is that of the debtor. The U.S. Trustee has recommended confirmation (CP 136). The case has been pending since March 1987. The debtor’s plan, filed in October 198...
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ORDER ON PLAINTIFF’S MOTION TO INVOKE DOCTRINE OF COLLATERAL ESTOPPEL In this adversary proceeding, Joseph Atchley, (plaintiff) seeks a determination that a judgment debt owed to him by Ernest E. Stover and Jean R. Stover (debtors), debtors in the underlying chapter 7 proceeding, is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) & (B), (a)(4), (a)(6) and (a)(7). This judgment resul...
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ORDER ON OBJECTION TO EXEMPTION A judgment creditor, Dr. Timothy Dyer, has objected (CP 10) to the debtors’ claim of exemption for their residence located in Palm Beach County. The creditor’s objection to the debtors’ valuation of personal property was heard on July 26, 1988 with the foregoing objection and has been resolved by a separate order. (CP 19). The debtors’ entitlement to h...
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ORDER DENYING DEBTOR’S MOTION TO AMEND SCHEDULES The debtor moved to schedule four additional creditors, based on potential claims for contribution arising out of an automobile accident on June 11,1986. The motion, filed August 9, 1988, was heard on August 23. The debtor’s voluntary chapter 7 petition was filed on October 1, 1986. The debtor received a discharge on January 13, 1987. A claims ...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW This matter came before the court on December 14, 1987 upon plaintiff, Cynthia Stockdill’s complaint seeking exception to discharge pursuant to 11 U.S.C. § 523(a)(5). The plaintiff is the ex-wife of the debtor. The parties were divorced on September 2, 1986 as evidenced by a Final Judgment for Dissolution of Marriage entered in the Circuit Court of...
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MEMORANDUM OPINION Presently before the Court is Butler County’s (“Butler”) Motion for Abstention and Relief from the Automatic Stay, and Debtor’s Motion to Assume an Executory Contract. Butler contends that this Court must abstain pursuant to 28 U.S.C. § 1334(c)(2); alternatively, Butler asserts that we should abstain pursuant to 28 U.S. C. § 1334(c)(1). Debtor asserts that abstention un...
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MEMORANDUM DECISION At issue is whether the proceeds from the sale of community property may be used to satisfy debts incurred by the debt- or for business purposes subsequent to separation from his wife but prior to the dissolution of their marriage. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157 and General Order No. 312-D of the United States Distric...
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MEMORANDUM OPINION AND ORDER Clark Oil & Refining Corporation a debt- or in these procedurally consolidated cases (hereinafter “Clark”) seeks orders in these two adversary proceedings enjoining holders of promissory notes issued by Chicap Pipe Line Company (hereinafter “Chicap”) and Southcap Pipe Line Company (hereinafter “Southcap”) and enjoining Chicap and Southcap from paying the noteh...
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90 B.R. 90 (1988) In the Matter of DELAWARE AND HUDSON RAILWAY COMPANY, a Delaware corporation. Bankruptcy No. 88-342. United States Bankruptcy Court, D. Delaware. August 30, 1988. Stanley Samorajczyk, Hazel, Thomas, Fiske, Beckhorn & Hanes, Washington, D.C., Joanne Wills, Morris, James, Hitchens & Williams, Wilmington, Del., for trustee. Leona D. Jochnowitz, Albany, N.Y., for N.Y. State Dept. of...
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ORDER After due notice, a hearing was held June 2, 1988, on confirmation of the Debt- or’s Chapter 11 Plan of Reorganization, together with objections to the Plan filed by Harriet Flaccus, Louise Grout, David Line, Robert Line, Jr., Penelope Wilson, Norwest Leasing, Inc., Norwest Bank of Billings, Sperry New-Holland Credit, John Deere Co., and John and Michael Robertson. The Plan, as file...
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MEMORANDUM OPINION AND ORDER Kenneth B. Shader (Ken) filed an individual Chapter 7 petition on April 3, 1987. An order for relief was entered May 26, 1987 against Shader China Doll, Inc. (SCD) on an involuntary petition filed May 1, 1987. Ken’s principal liabilities arose out of personal guarantees on debts incurred by SCD in which he owns all of the outstanding stock. Jonathan Gayl (Gayl), T...
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MEMORANDUM DECISION At issue are the propriety and reasonableness of attorneys’ fees and costs charged by attorneys for the trustee in a “Supplemental Application for Final Award of Compensation ...” relating to the administration of the Chapter 7 debtor’s estate. Also at issue is whether the trustee’s attorneys are entitled to interest on fees and costs “carried” by the attorneys pu...
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MEMORANDUM OPINION AND ORDER The debtors have objected to the trustee’s notice of intent to abandon as property of the estate a 1974 Peterbilt truck. Counsel for debtors and Diesel & Equipment Specialists, Inc., a creditor who supports the abandonment, chose to waive the scheduled hearing and submit their positions on memoranda. The trustee chose not to participate. Consequently, the cour...
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MEMORANDUM OPINION THIS MATTER comes before the court on debtor’s complaint to determine the dis-chargeability of student loans under 11 U.S.C. § 523(a)(8) on the grounds that repayment of the student loans would impose an undue hardship. The sole issue is whether repayment of the student loans would impose an undue hardship on the debtor. FINDINGS OF FACT Debtor, David Childs, earned a law...
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*693MEMORANDUM ON PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiffs filed a “Motion For Partial Summary Judgment” on June 28, 1988, seeking a judgment striking the fifth, seventh, eighth, and ninth affirmative defenses relied upon by defendant in its answer.1 Defendant filed its response in opposition to plaintiffs’ motion on July 26, 1988. Plaintiffs did not file supporting affidavits w...
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*319 MEMORANDUM Before the bar date for filing proofs of claims, the Internal Revenue Service filed a proof of claim against the chapter 13 debtors for personal income tax. After the bar date, the IRS amended the claim twice. The first amendment added more personal income tax for another year. The second amendment added a claim against one of the debtors, Mr. Miller, fo...
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MEMORANDUM OPINION In this adversary proceeding, the debtor, Ruth Marie Maschka, seeks a declaration that her obligation on student loans incurred while she was attending the University of Nebraska are discharged under 11 U.S.C. § 523(a)(8)(B) on the grounds that repayment would impose an undue hardship on her. During the course of the adversary proceeding, the University of Nebraska Board of R...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 11 case and the matters under consideration are claims set forth in a two count Complaint filed by Business Products, Inc. (Debtor). The Complaint, which names Mark Accord, Gus Hermann, Vince Paglino, Modular Mailing Systems, Inc. and International Mailing Systems, Inc., f/k/a Better Packages, Inc., as Defendants, seeks, in Count I, compensato...
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MEMORANDUM OPINION AND ORDER ON REMAND THIS IS a confirmed Chapter 11 case and the matter under consideration is the right of Richardson Realty, Inc. (Richardson Realty), to be compensated for its services rendered to the estate in connection with the sale of the assets consisting of real properties of Sarasota Land Company (Debtor). The matter is before this Court pursuant to an Order entered by...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Summary Judgment on Objection to Request for Payment of Administrative Expense of the Internal Revenue Service (Government) filed by Roy Amerson, Inc. (Debtor), the Debtor in the above-captioned Chapter 11 case. The Court has considered the Objection and Motion, tog...
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MEMORANDUM OPINION The issue before the court is whether a Chapter 13 debtor has an absolute right, on debtor’s Motion, to have the case dismissed while a Motion to Convert it to Chapter 7 by the trustee is also pending. The relevant facts are as follows: Creditor Grundy National Bank (“Grundy”) incurred substantial attorney’s fees arising out of claims it asserted against Eddie D. L...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of William E. Berry and Joyce Berry, his wife, (the “creditors”) against Allen S. Mullin, Jr., (the “debtor”) to determine the dischargeability of a state court judgment pursuant to 11 U.S.C. § 523(a)(4), and the Court having heard the testimony, examined the evidence presented, observed the cando...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in the above-captioned adversary proceeding is a Complaint brought by Plaintiff, Key Capital Corp., against the Defendant/Debt- or, Beulah Faye Chapman, pursuant to Title 11 U.S.C. § 523(a)(3)(A) and (a)(6). The Court reviewed the record and heard argument of counsel on May 11, 1988 and finds the relevant...
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ORDER ON MOTION FOR PROTECTIVE ORDER AND OBJECTION TO RULE 2004 EXAMINATION THIS CAUSE came on for consideration upon the Motion for Protective Order and Objection to Rule 2004 Examination filed by the movant, Robert Goldhagen, Esq. The Court reviewed the Motion and the record and finds as follows: By order of this Court dated June 21, 1988, movant was directed to appear at a Rule 20...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The above-styled case came before the Court on May 17, 1988, at Anniston, Alabama, on the motions of Dr. John E. Carr for allowance of an untimely-filed proof of claim and for reconsideration of the Court’s order dated April 18, 1988, whereby this Court denied the movant’s motion to extend the time for filing a complaint to determine the dischargeab...
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ORDER DENYING RELIEF FROM STAY TO EFFECT OFFSET This matter is before the court on the motion of Farmer’s Home Administration (“FmHA”) motion for relief from the automatic stay to permit it to effect an offset against disaster relief funds due these farm debtors. The Court has concluded that FmHA’s motion must be denied for the reasons that: (1) permitting an offset in the circumstances of this...
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ORDER IMPOSING SANCTIONS FOR VIOLATION OF SECTION 362 STAY This matter is before the court on the debtors’ motion for sanctions pursuant to § 362(h) against the South Carolina Tax Commission (the “Commission”). The court has concluded that the motion should be granted and that the debtors are entitled to actual damages of $2,000.00 and reasonable attorney’s fees (to be determined upon separate ...
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ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY AND DENYING MOTION TO CONVERT This matter is before the court on the motion of a secured creditor, NCNB National Bank of North Carolina (“NCNB”) for relief from the automatic stay. 11 U.S. C. § 362(a). That motion is opposed by the debtor and an unsecured creditor, A&R Chef (“Chef”), who contend that NCNB is not a secured creditor. Chef has al...
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MEMORANDUM AND ORDER Before the court is the trustee’s objection to the proof of claim of Robinson, Mendoza, Barton & McCarthy, P.A., (hereinafter the Robinson firm). In its proof of claim, filed pursuant to 11 U.S.C. § 330(a), the Robinson firm requests, from the estate, attorneys’ fees for services rendered on behalf of the debtor. FACTS The facts are not in dispute. The Pro Bono Publico progra...
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MEMORANDUM OPINION On April 2, 1981, an involuntary bankruptcy petition was filed against Frances G. Bridge. On September 21, 1982, the United States Customs Service seized $670,000 in Canadian Treasury Bills from William Bridge, the debtor’s husband. He had carried them into Detroit from Windsor, Ontario, and did not declare them, in violation of 31 U.S.C. § 5311, et seq. On J...
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90 B.R. 196 (1988) In re KARISDA, INC., d/b/a Curry Printing, Debtor. Robert F. ANDERSON, Trustee, Plaintiff, v. Stephen L. BLACKMAN and Sarah K. Blackman, Defendants. In re William P. BRIXON, Jr., a/k/a Rick Brixon, d/b/a Curry Printing, Debtor. Robert F. ANDERSON, Trustee, Plaintiff, v. Stephen L. BLACKMAN and Sarah K. Blackman, Defendants. Bankruptcy Nos. 88-00384, 88-00385, Adv. Nos. 88-0077,...
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MEMORANDUM AND ORDER Before the court is the motion of Sweetheart Packaging Corporation for relief from the automatic stay imposed by 11 U.S.C. § 362. 1 *184 FACTS 1. Purity Ice Cream Company, Inc. (“the debtor”), is a South Carolina Corporation which does business in Charleston County, South Carolina. 2. Sweetheart Packaging Corporation (“the movant”) is a...
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90 B.R. 793 (1988) In re Elmer E. JACKSON, Jr., Debtor. Ralph C. McCULLOUGH, II, Trustee, Plaintiff, v. Louise GARLAND, Defendant. Bankruptcy No. 85-01417, Complaint No. 87-0176. United States Bankruptcy Court, D. South Carolina. January 19, 1988. Lydia Nyzio, Finkel, Georgaklis, Goldberg, Sheftman & Korn, P.A., Columbia, S.C., for plaintiff. George G. Reaves, Florence, S.C., for defendant. ...
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MEMORANDUM AND ORDER In this adversary proceeding Clarence R. Boyer, Sr., the debtor in possession, seeks *201 a declaratory judgment determining the date from which interest on allowed unsecured claims should accrue and the proper rate of interest applicable to such claims. FACTS The facts have been stipulated by counsel. The debtors filed petitions for relief...
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ORDER DENYING CONFIRMATION AND DISMISSING CASE THIS CASE came on to be heard on ¡August 26, 1988 for confirmation of the Debtors’ proposed Chapter 13 Plan, the Court having heard from counsel for the Debtors, counsel for the Trustee and vari *568 ous other interested parties and counsel, and being otherwise fully advised in the premises, it is ORDERED as follows: 1. That upon the request ...
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MEMORANDUM OPINION AND ORDER On the eve of trial, this court has been asked to determine whether a counterclaim is a core or non-core proceeding and, in any event, to grant partial summary judgment with respect to one count of that counterclaim. The present situation has grown out of two separate civil actions, one in state court and the other in bankruptcy court, which have become inextricably...
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MEMORANDUM AND ORDER Before the court are two motions of the Attorney General for the State of North Carolina (the state): one motion is for relief from the automatic stay pursuant to 11 U.S.C. § 362(b)(4)1, or, in the alternative, for relief from the automatic stay under § 362(d); and the other motion is for abandonment pursuant to § 554(b). *193Asset Control Company of North Carolina (the debto...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTIONS THIS IS a Chapter 7 liquidation case and the matter under consideration is the Debt- or’s right to claim as exempt a certain residence located in Miami, Dade County, Florida, as homestead pursuant to Article X, Section 4 of the Florida Constitution. The exemption claim of the Debtor is challenged by the Trustee who contends that the property involved does ...
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88 B.R. 238 (1988) In re Carlys K. KRUEGER and Martha Lou Krueger, dba Krueger's Entertainment, Debtors. GREAT PACIFIC MONEY MARKETS, INC., Jack Winer, Domus Equities, Inc., a California Corporation, Appellants, v. Carlys K. KRUEGER and Martha Lou Krueger, dba Krueger's Entertainment, Appellees. BAP No. CC-87-1619 JVMo, Bankruptcy No. SAX 86-03717JR, Adv. No. SA 86-0845-JR. United States Bankrupt...
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This appeal arises out of the bankruptcy court’s order granting the appellee’s motion for relief from the automatic stay, where the debtor had filed a Plan and Disclosure Statement just prior to the hearing. FACTS On February 25, 1977, the debtor corporation purchased from the appellee a 106 unit apartment complex which is located in Texas and the only asset in the estate. The debtor issued a...
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OPINION By this appeal, the Appellant/Communications Workers of America (“The Union”) seeks to set aside an order by the Bankruptcy Court which imposed sanctions upon the Union for attorney’s fees incurred by *67 the debtor in defending the underlying action. The Union had filed a complaint under § 523(a)(6) of the Bankruptcy Code alleging that a fine it had imposed upon the debtor was nondis...
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MOOREMAN, Bankruptcy Judge. This appeal arises from an order entered by the bankruptcy court dismissing the appellant’s complaint “for failure to prosecute.” The debtor/appellee did not file a responsive brief. FACTS On August 7, 1986, the appellant filed the underlying adversary proceeding against the debtor seeking to have a certain debt declared nondischargeable. The complaint specifical...
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OPINION Bradley A. Near and Elizabeth R. Near appeal from an order transferring venue of the Nears’ Chapter 11 bankruptcy petition filed in the District of New Mexico to the District of Arizona pursuant to Bankruptcy Rule 1014(b). We reverse. STATEMENT OF FACTS Bradley and Elizabeth Near filed a chapter 11 petition in the United States Bankruptcy Court for the District of New Mexico on June...
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OPINION Marjorie Lynn Walters and John H. Holloway appeal from the bankruptcy court’s order dismissing their adversary proceeding and imposing sanctions against them in the amount of $2,961.78. We affirm. FACTS Prior to bankruptcy, in May of 1980, Marjorie Lynn Walters received a state court judgment for $29,614.91 against the debtor Arnold J. Webre for assault and battery. On J...
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OPINION Appellants Douglas Jones, Jr. and Onie B. Jones contend that the bankruptcy court erred in denying them relief in the form of a declaratory judgment that they had good and clear title to real property that they purchased at a trustee’s sale on the foreclosure of a second deed of trust. We affirm the bankruptcy court’s judgment; however, we conclude that the bankruptcy court erred in ent...
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MEMORANDUM OPINION REGARDING ORDER COMPELLING THE PRODUCTION OF DOCUMENTS FOR IN CAMERA INSPECTION This case is before the Court upon the Order and Findings of Fact and Conclusions of Law entered June 8, 1988, 87 B.R. 199, compelling the production of documents for in camera inspection. The documents have been produced and the Court has completed its in camera inspec...
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90 B.R. 737 (1988) In re J.M.V., INC. trading as J.M.V. Provisions, Debtor. Bankruptcy No. 86-03256F. United States Bankruptcy Court, E.D. Pennsylvania. September 16, 1988. *738 Nathalie D. Martin, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for trustee, Gabriel Basch. James A. Backstrom, Fox, Rothschild, O'Brien & Frankel, Philadelphia, Pa., for Michael Vetri. MEMORANDUM OPINIO...
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90 B.R. 808 (1988) In re AMERICAN SOLAR KING CORP., Debtor. Bankruptcy No. 6-86-00527. United States Bankruptcy Court, W.D. Texas, Waco Division. September 1, 1988. *809 *810 *811 *812 Benjamin Harvey, Waco, Tex., for American Solar King Corp. H. Rey Stroube III, S. Margie Venus, Akin, Gump, Strauss, Hauer & Feld, Houston, Tex., Donald R. Taylor, Akin, Gump, Strauss, Hauer & Feld, San Ant...
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MEMORANDUM OPINION AND ORDER On January 4, 1988, the court held a hearing on the Chapter 7 trustee’s motion to determine the reasonableness of a pre-petition retainer the debtors Bernard and Kathleen Leff gave to their attorney. The trustee and the Leffs were represented by counsel at the hearing. After entertaining argument by counsel, the court took the motion under advisement. The Leff...
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MEMORANDUM DECISION INTRODUCTION AND PROCEDURAL HISTORY This matter is before the Court on Robert Goodnow’s complaint to determine the dischargeability of a debt owed to him by debtor James Adelman. The complaint states a cause of action based on 11 U.S.C. § 523(a)(2)(A). A trial in the matter was held on October 14, 1987, in Aberdeen, South Dakota. At the conclusion of Good-now’s ca...
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MEMORANDUM OPINION Gordon S. Sutton, Debtor, filed a petition for relief under Chapter 12 of the Bankruptcy Code on May 26, 1987. Walter W. Kelley serves as Chapter 12 Trustee in this bankruptcy case. On September 14, 1987, Debtor filed a Chapter 12 plan which proposed to make payments to unsecured creditors through the trustee’s office. The plan further proposed that Debtor would pay all sec...
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ORDER DISMISSING CASE This matter came on for hearing before the Court on the Motion of the Debtor to dismiss this case or in the alternative to convert same to a Chapter 7 liquidation. Appearances were entered on behalf of Dearing Leasing, Inc., the Internal Revenue Service and the United States Trustee. Both Dearing Leasing, Inc., and the Inter *662 nal Revenue Service expressed their desir...
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90 B.R. 246 (1988) In re OAKGROVE VILLAGE, LTD., Debtor. In re SISTERDALE, INC., a Texas Corporation, Debtor. In re HUNTER'S CROSSING, INC., Debtor. In re AUDUBON APARTMENTS, LTD., a Texas Limited Partnership, Debtor. In re HAGUE-NEYLAND, LTD., Debtor. Bankruptcy Nos. 87-50834 to 87-50838. United States Bankruptcy Court, W.D. Texas, San Antonio Division. April 6, 1988. *247 Garvin P. Stryker and ...
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MEMORANDUM AND DECISION This case was commenced on August 26, 1987, by the filing of a voluntary petition in Chapter 7. On November 20, 1987, the bankruptcy trustee commenced an Adversary Proceeding pursuant to 11 U.S.C. § 542 for an Order requiring the Defendant to turnover one half the surplus proceeds from a sale of the Debtor’s erstwhile marital residence. The Defendant filed an answe...
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OPINION The issue before the Court is whether the Court should approve the appointment of Donald Samson as trustee in this matter. 11 U.S.C. Sec. 1104(c) provides the method for the appointment of a trustee in a Chapter 11 case: If the court orders the appointment of a trustee.... then the United States Trustee, after consultation with parties in interest, shall appoint, subject to the Cour...
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OPINION LAND CONTRACTS — ABANDONMENT AND WAIVER UNDER MICHIGAN LAW The parties have come before the court on an objection to confirmation of a chapter 13 plan and a motion for relief of stay under 11 U.S.C. § 362. FACTS On July 23, 1985, debtors Jeff and Deborah Miller entered into a land contract with creditors David and Ann Gregory, the parents of Deborah Miller. Under the land contract...
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OPINION REGARDING BANKRUPTCY CODE PAYMENT ORDERS AND THE ANTI-ASSIGNMENT OF VETERANS’ ADMINISTRATION BENEFITS ISSUES This case presents two interesting issues raised in connection with Bankruptcy Code payment orders and the anti-assignment of Veterans’ Administration benefits. The first issue the Court must address is whether there is a violation of Debtor’s fifth amendment righ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This adversary proceeding came before the court on July 15, 1988 for a continued hearing regarding a Motion for Summary Judgment filed by Public Service Company of New Hampshire (PSNH) and an Objection thereto filed by New Hampshire Electric Cooperative, Inc. (NHEC). The court originally heard the parties’ arguments on May 20, 1988 and, after three continuan...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE BORROWING APPLICATION AS MODIFIED OF DANIEL R. MURRAY, TRUSTEE OF THE DEBTOR, CHICAGO, MISSOURI AND WESTERN RAILWAY The court has held a hearing on the Borrowing Application as modified filed by Daniel R. Murray, the duly appointed and acting Trustee of the Debtor, Chicago, Missouri and Western Railway Company seeking orders permitting him as...
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OPINION Raymond L. Asher, a professional corporation, appeals from an order requiring it to pay to the debtor $3,135 in sanctions pursuant to Bankruptcy Rule 9011. We affirm. I. FACTS In July of 1984, the debtor, Film Ventures International, Inc. (“Film Ventures”), and Artists Releasing Corporation (“ARC”), its parent corporation (collectively “the companies”), retained Raymond ...
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OPINION Before VOLINN, PERRIS and MEYERS, Bankruptcy Judges. Imperial Bank, a creditor with a judgment lien against debtor's residence, appeals the bankruptcy court’s “Order Granting Application to Enter into New Early Possession Agreement and to Modify Consulting Agreement” (“the Order”). The dispute concerns the proper classification and disposition of $50,000 to be paid to the debtor and his n...
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OPINION Before VOLINN, MEYERS and JONES, Bankruptcy Judges. The bankruptcy court confirmed the debtor’s Chapter 13 plan without conducting an evidentiary hearing concerning debt- or’s good faith. Appellant, which holds a default judgment for alleged embezzlement by the debtor, contends that the court should have required or permitted further inquiry on the good faith issue. ISSU...
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OPINION NEW ISSUES AND RELIEF UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b) The court held a trial on March 31, 1988, on the debtors’ complaint under Federal Rule of Civil Procedure 60(b) to vacate that portion of the court’s order of April 28, 1987, which granted a replacement lien in 1987 crops to Michigan National Bank. At the conclusion of the trial the court adjourned the hearing to allow the ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is brought to determine the validity, priority and extent of a lien' in accounts receivables owing to the debtor. Both parties have filed motions for summary judgment which were heard August 9, 1988. Based upon the pleadings, evidence, and stipulation of facts, the Court enters these Findings of Fact and Conclusions of Law:...
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*318 OPINION This most unusual Chapter 7 bankruptcy filing and an adversary proceeding filed therein by the Trustee causes us to explore the issue of who the intended debtor in this case is and whether the intended debtor can in fact be a debtor in the configuration which he has chosen. We conclude, in light of the Debtor’s explanatory Brief in this adversary proceeding, that the...
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MEMORANDUM This action involves the determination of the validity of a claim against a chapter 11 *720 debtor, Robbey Realty, Inc., for withdrawal liability to a multi-employer pension fund pursuant to 29 U.S.C. §§ 1301, 1381 and 1399. The. claimant has moved for summary judgment under Fed.R.Civ.P. 56 and for the reasons set forth below the motion will be granted. I. ...
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MEMORANDUM OPINION RE PROPOSED RESTRUCTURING RELATING TO OPERATION OF SEA-BROOK NUCLEAR POWER GENERATING STATION On July 21, 1988 the debtor in this reorganization proceeding filed a “Notice Of Intention To Enter Into Transactions Out Of The Ordinary Course (New Hampshire Yankee Electric Corporation)” under which the debtor gave notice that it proposed to enter into several related transa...
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*178FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of William Roe-melmeyer (the “trustee”) against Javier and Ines C. Rodriguez (the “debtors”) to revoke the debtors discharge pursuant to 11 U.S.C. § 727(a)(6)(A) and (d)(3), and the Court having heard the testimony, examined the evidence presented, considered the arguments of counsel, and being o...
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*879 MEMORANDUM OPINION AND ORDER ON MOTION OF FEDERAL LAND BANK TO COMPEL PAYMENT TO UNSECURED CREDITORS OR IN THE ALTERNATIVE TO DISMISS This cause is before the Court on the motion of the Federal Land Bank to “Compel [payment to unsecured creditors] or in the Alternative to Dismiss.” The issue, one of first impression in this District, is whether “net income” shown on these Chapter 12 debt...
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MEMORANDUM OPINION The matters before the court are a Motion for Relief from Stay filed on behalf of Tambellini Foods, Inc. (hereafter Tambellini) at Motion No. 88-1309 and a Motion to Sell Personal Property of the Estate, Including License Agreement, Free and Clear of Liens filed by the Trustee at Motion No. 88-1503. These are core proceedings. 28 U.S.C. § 157. Tambellini is the owner of...
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*42 OPINION The debtor objects to a proof of claim filed by the Internal Revenue Service (“IRS”) on the ground that IRS’s claim has incorrectly included pre-petition interest and penalties as a priority. The debtor requests that those portions of the claim be reclassified as general unsecured. FACTS On October 7, 1985 the IRS filed amended proof of claim # 21 in the amo...
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MEMORANDUM AND ORDER By complaint filed November 23, 1987, the Chapter 7 trustee for the Debtor, Estate of Bryan J. Gilbertson (Debtor), seeks to avoid a cash transfer of $12,450.00 to defendant, John Deere Company (John Deere), alleging the same to constitute a preferential payment under section 547(b) of the Bankruptcy Code. John Deere denies that under the facts a preference occurred a...
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*130 ORDER AVOIDING SECURITY INTEREST In accordance with an opinion to be entered in this case in this matter, the court finds that the creditor, Rice Acceptance Company, has a security interest in a 1965 International truck, Model 1200, of the debtor, which is the kind of property (see 11 U.S.C. § 522(f)(2)(A)(B) and (Q) on which such a lien may be avoided. That security interest is a nonpos...
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OPINION Certain orders issued by bankruptcy courts are accorded a special degree of finality. One of these orders is a discharge order granted to a Chapter 7 debtor, which may be revoked only in accordance with 11 U.S.C. §§ 727(d) and (e). Here, a debtor seeks to revoke his own discharge order when his discharge proved to be not only worthless, but a bar to a valuable discharge for over f...
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*849 Memorandum Opinion Re: Standard of Proof In § 523(a)(6) Actions This matter is before the Court upon the plaintiff-creditor’s complaint to have its claim declared nondischargeable pursuant to 11 U.S.C. § 523(a)(6). After a trial on the merits, the plaintiff has established by a preponderance of the evidence, but not by clear and convincing evidence, that this debt is one for...
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ORDER At the confirmation hearing on the Debtors’ third amended Chapter 11 plan held on August 9, 1988, the Debtors, through recently retained counsel conceded that the plan as written could not be confirmed but requested additional time to prepare a fourth amended plan modifying the treatment accorded FmHA. FmHA is presently a Class 4 creditor holding a second mortgage on 1,200 acres present...
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OPINION This matter comes before the Court based upon four motions. The initial mo *304 tion was filed by the debtor and seeks to reject certain executory contracts and agreements between the debtor and Poly-Gram Records, Inc. and other entertainment-related corporations. In addition, the debtor has moved to reject an executory contract and management agreement between the de...
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MEMORANDUM OPINION John Christopher Pollock, Jr. (“debtor”) has objected to the proof of claim filed by his ex-wife, Marilee C. Pollock (“claimant”), on the grounds that 11 U.S.C. § 523 does not prohibit the discharge of the following debts, each of which originated in orders related to the 1981 divorce of the parties: (1) that portion of child support arrearages allegedly modified downwa...
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ORDER ON MOTION TO DISMISS (Small Business Administration) The creditor, United States Small Business Administration (SBA), filed a motion to dismiss the Chapter 11 case. Opposing briefs were filed and a hearing was held on February 24, 1988. The basis of the motion is that the president of the debtor corporation lacked authority to file the Chapter 11 petition. SBA contends that the...
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MEMORANDUM OPINION INTRODUCTION ' The District Court for the Eastern District of Missouri entered an Order on October 23, 1987 directing the Debtors to file a declaratory judgment action with this Court for a bankruptcy law determination on two issues. Subsequent to the filing of the declaratory judgment action, the Plaintiffs filed a Motion For Summary Judgment. Both parties submitt...
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MEMORANDUM OPINION On the 3rd day of August, 1988, this Court heard the objections of the Trustee to certain real and personal property exemptions claimed by Donald E. Peters and Carolyn J. Peters, (hereinafter “Debtors”). The real property is located in Sao Paulo, Brazil and it is the location of the real property, outside of the State, which forms the basis of the Trustee’s objection. T...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon an Objection to Confirmation of Chapter 13 Plan Pursuant to 11 U.S.C. Section 1324 filed on behalf of the Chapter 13 Trustee. The Debtor is employed as a “stockbroker” by First Eagle, Inc. It is the Chapter 13 Trustee’s contention that because Debtor is so employed, he is excluded from filing a Chapter 13 bankruptcy by 11 U.S.C....
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ORDER TRANSFERRING THE WITHIN ADVERSARY ACTION TO THE UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA This is an action brought by the plaintiff trustee in bankruptcy to avoid a transfer of certain personal property of the debtors within the year next preceding bankruptcy under § 548(a)(2) of the Bankruptcy Code. 1 The defendants have moved to transfer this action to the ...
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DECISION ON COMPLAINT FOR DECLARATORY JUDGMENT The debtor filed a complaint for declaratory judgment to determine the title to property in the possession of the debtor, consisting of component parts, work in process, and completed forklift units. This matter has been submitted on a joint stipulation of facts, opposing briefs and cross motions for summary judgment. This adversary proceedin...
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ORDER This matter is before the court on its own motion, pursuant to 11 U.S.C. § 707(b), which required debtor to appear and show cause why this case should not be dismissed as a substantial abuse of the provisions of Chapter 7. A hearing was held on December 4,1987, with the Trustee present by Timothy Junk. Debtor was present in person and by his attorney, Alan K. Hofer. At the hearing debtor ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The following constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. This is a core proceeding. 28 U.S.C. Section 157(b)(2)(A). This proceeding was commenced by the filing of a complaint by the Trustee to recover certain transfers by the Debtor to the defendants as preferential under 11 U.S.C. Section 547(b). On June 30, 1988,...
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MEMORANDUM OPINION The matter for decision before the Court involves the question of the right of Joseph B. Shumate, Jr., the debtor herein, to appeal an order of this Court dated April 29, 1988, in forma pauperis, pursuant to 28 U.S.C. § 1915. Facts On February 16, 1988, Joseph B. Shu-mate, Jr. (“Shumate”) filed this adversary proceeding in the form of a motion to void an order of this...
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MEMORANDUM OPINION JURISDICTION This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(E) and (0), which the Court may hear and determine. BACKGROUND Debtor filed her petitio...
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OPINION The debtor and debtor-in-possession in this Chapter 11 proceeding, Sondra Lee Kent, has objected to the claim filed by Jacob Parker. Mr. Parker has filed a claim in the total amount of $143,349.00 for “Breach of contract for sale of real property owned by debtor and consequent damages.” His claim is based upon the fact *2 that Mrs. Kent was not permitted to assume the...
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MEMORANDUM OPINION INTRODUCTION The Trustee, Gerald A. Rimmel, filed a Complaint to subordinate the claims of William Morian on March 15, 1988. The Defendant filed his Answer on April 15, 1988. The case was set for trial and heard on June 13, 1988. For the reasons stated below, this Court finds in favor of the Defendant and against the Plaintiff Trustee. JURISDICTION This C...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The following constitutes findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. This is a core proceeding. 28 U.S.C. Section 157(b)(2)(A). A. Procedural History This proceeding was commenced by the filing of a complaint by the Trustee to recover certain transfers by the Debtor to the defendants as preferential u...
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AMENDED MEMORANDUM OPINION AND ORDER DENYING DEBTOR’S MOTION TO RECEIVE POST JUDGMENT RATE OF INTEREST ON JUDGMENT OF FORECLOSURE (Corrected and Reissued September 9, 1988) This proceeding is under Chapter 13 of the Bankruptcy Code. It was filed after a *52 Judgment of Foreclosure and Sale was entered in favor of Fleet Mortgage Corporation (“Fleet”) against Robert L. Daniels, Jr. (“Debtor”)...
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MEMORANDUM OPINION Curtis L. Mann, Trustee, filed this adversary complaint in the Eastern District of Missouri, which is the same district where the involuntary petition in bankruptcy was filed against the Debtor, Inland Shoe Manufacturing Company, Inc. (“Inland”). Subsequently, Defendants Michael Industries, Inc. (“Michael”) and Jeffrey K. Endervelt filed their Motion To Change Venue, Dismiss ...
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CORRECTED MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW On November 13,1984 this Court entered an Opinion and Judgment in favor of the Trustee in this case, Charles A. Gower, ordering Farmers Home Administration (hereinafter “FMHA”) to return to the Debtor’s estate $282,847.39 plus interest and directing the Trustee to turn over to the estate an additional $52,327.07 pl...
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ORDER In this Chapter 11 case, the Debtor and the major secured creditors Albert and Irma Bailey (Baileys), are engaged in serious dispute over the failure of Baileys to timely file a Proof of Claim in this case of a state court Judgment rendered in favor of Baileys and against the Debtor on February 13, 1987. On July 5, 1988, this court denied Baileys’ motion for relief from the automatic stay...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT TO THE EFFECT THAT THE TRUSTEE CANNOT RECOVER THE SUM OF CERTAIN EARNEST MONEY DEPOSITS MADE BY THE DEFENDANTS TONEY WAYNE BROWN AND CHERI RENEE BROWN This is an action brought by the plaintiff trustee in bankruptcy to recover earnest money deposits in the sum of $2,000.00 on account of two contracts to purchase certain real property from th...
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SUPPLEMENTAL MEMORANDUM OPINION THIS CHAPTER 11 plan confirmation before the Court presents a unique situation. By Court order, two competing plans were twice brought on for simultaneous confirmation. Plans were proposed by majority and minority shareholder groups of the debtor. On May 24, 1988, the second amended plan filed by the majority was denied confirmation and the minority’s second amen...
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MEMORANDUM OF DECISION This matter came before the Court on the Debtor’s Complaint to Determine Debt- or’s Exemptions and for Declaratory Judgment. After a hearing and consideration of applicable law, it is the opinion of this Court that the Debtors complaint is due to be DENIED. This memorandum shall constitute findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052. FINDING...
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MEMORANDUM OPINION Twenty eight (28) days after we entered an order against defendant Walter Aungst, Jr. (“defendant”) based on his violations of 11 U.S.C. § 362, defendant filed a motion for leave to extend the appeal period. Plaintiff Miguel V. Aponte (“plaintiff”) has filed an objection, alleging that defendant has not shown the excusable neglect required by N.B.R. 8002(c). We agree wi...
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OPINION The matter presently before the court is a motion by General Motors Acceptance Corporation (“GMAC”) to allow an administrative claim against Martin J. Pearson, the debtor herein, resulting from the rejection by the debtor of an unexpired lease previously assumed under a confirmed Chapter 13 plan. On April 23, 1987, the debtor filed a Chapter 13 petition under the Bankruptcy R...
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OPINION DISMISSING FRAUDULENT CONVEYANCE PROCEEDING I. INTRODUCTION This adversary proceeding presents the issue of whether a fraudulent conveyance cause of action is rendered moot by the substantive consolidation of two bankruptcy cases, where the fraudulent conveyance arises from one debtor’s pre-petition payment of a debt that was owed by the other. The Court holds that the f...
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MEMORANDUM OPINION AND ORDER This opinion and order shall address the objection of the State of New Jersey, Division of Motor Vehicles (“DMV”) to confirmation of the debtor’s plan for adjustment of her debts under Chapter 13 of Title 11, United States Code (“Bankruptcy Code” or “Code”). The debtor was assessed surcharges under N.J.S.A. 17:29A-35 (the “Merit Rating Plan”) as a result of convicti...
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AMENDED MEMORANDUM DECISION AND ORDER This matter comes on for hearing to determine the value of an office complex located in the central business district of Tulsa, Oklahoma, commonly known as First Place (the “Property”), which is the primary asset of the debtor. The court, on August 2, 1988, heard testimony consisting of income and expense projections, comparable sales data and valuation method...
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ORDER AND NOW, this 8th day of September, 1988, upon consideration of the Report of the Bankruptcy Court, it is hereby ORDERED and DECREED that: 1. Said Report is ADOPTED and APPROVED. 2. The adversary proceeding be stayed pursuant to 9 U.S.C. § 3. 3. The defendants’ motion to abstain pursuant to 28 U.S.C. § 1334(c)(1) is DENIED. United States Bankruptcy Court for the ...
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OPINION The matter before the Court is a Complaint filed by John W. Hargrave, Esquire, the Trustee (“Trustee”) for the estate of F.H.L., Inc., trading as $10-15 Shoe Store, a Division of Mr. Henry, the debtor herein (“debtor” or “FHL”), against Fred E. Boeh-mer (“Boehmer”) pursuant to 11 U.S.C. §§ 547 and 548. By that complaint, the *289 Trustee seeks a judgment voiding certa...
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SUPPLEMENTAL OPINION I. In these seven Chapter 13 cases, a common question of law is raised: Is a secured creditor entitled to pre-confirmation payments? On July 27, 1988, following the arguments of counsel and the trustee, the Court announced its decision that secured creditors are entitled to their regular monthly payments as adequate protection under 11 U.S.C. §§ 361, 362, and 363. This op...
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OPINION AND ORDER DISALLOWING PROOF OF CLAIM This matter is before the court upon objections of Debtors, Defiance Landmark, Inc. and the trustee to the proofs of claim filed by the Toledo Trust Company. Upon consideration thereof, the court finds that said objections are well taken and should be sustained and that Toledo Trust may not share as an unsecured creditor under Debtors’ chapter ...
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OPINION This matter is before the court on cross-motions for summary judgment related to a Complaint for Declaratory Relief and Turnover of Property filed by the United States of America for and on behalf of the Department of Health and Human Services (“HHS”) against Joseph D. Marchand, trustee of the debtor, Southwest Citizens’ Organization for Poverty Elimination, Inc. (“SCOPE”), and th...
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ORDER ON MOTIONS TO REQUIRE DEBTOR TO PAY ALL GENERAL UNSECURED CLAIMS PRIOR TO CONFIRMATION AND FOR VALUATION OF SECURED CLAIM This matter comes before the Court on the motions of the First Interstate Bank of California and First RepublicBank Dallas, National Association (the Lenders) seeking to require the debtor to pay all general unsecured claims prior to confirmation of a plan of reorganiz...
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OPINION Before the Court is a motion filed on behalf of Stephen Altman, an equity holder of the debtor corporation to implement a certain plan of reorganization filed by Altman in this proceeding. That motion seeks, inter alia to disqualify and exclude the vote of Pennsylvania National Mutual Casualty Insurance Company (“Penn National”), which voted to reject the plan. It is th...
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SUPPLEMENTAL MEMORANDUM OPINION* In this adversary proceeding, the trustee claims freight undercharges in the amount of $1,503 arising from services rendered to Howell Industries on July 26, 1984. The debtor filed its Chapter 11 petition on November 1,1983. The case was converted to Chapter 7 on March 31, 1986. This complaint was filed on March 31, 1988. On July 28, 1988, Howell filed a motion to...
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*652 MEMORANDUM OPINION This opinion shall address the objection of the State of New Jersey, Division of Motor Vehicles (“DMV”) to confirmation of the debtors’ plan for adjustment of their debts under Chapter 13 of Title 11, United States Code (“Bankruptcy Code” or “Code”). The debtors’ plan proposes payment of surcharges imposed on debtor Robert E. Bill (“Bill” or “debtor”) unde...
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MEMORANDUM OPINION The issue for determination is whether the curing of a default on a debtor’s residential mortgage under chapter 13 merely should restore the parties to their previous positions under non-bankruptcy law, or whether the curing of a default requires that interest be paid on the arrearages. John and Lydia Brown, debtors, filed a petition for relief under chapter 13 on ...
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DECISION The National State Bank of New Jersey (“NSB” or the “Bank”) seeks an order modifying the automatic stay, pursuant to 11 U.S.C. § 362(d), to permit it to offset $400,000, deposited in NSB account No. 200-392-611 (the “Account”) by United States Lines, Inc. (“U.S. Lines”), on the ground that it paid said sum in honoring a letter of credit it issued on behalf of U.S. Lines. To this,...
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OPINION Before the Court is the Debtors’ Third Amended Joint Plan of Reorganization under Chapter 11 of the United States Bankruptcy Code (“the Plan”) dated December 7,1987 submitted by Elsinore Shore Associates, d/b/a The Atlantis Casino Hotel (“ESA”), Elsinore of Atlantic City (“EAC”), Elsinore of New Jersey, Inc. (“ENJ”), El-sub Corporation (“Elsub”), and Elsinore Finance Corporation (...
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MEMORANDUM OF OPINION AND ORDER This adversary proceeding concerns alleged insider preferences and is before the Court upon the parties’ respective cross-motions for partial summary judgment. After reviewing the supporting briefs, stipulations and other relevant portions of the record, the following constitutes the Court’s findings and conclusions pursuant to Rule 7052, Bankr.R.: I. ...
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ORDER ON MOTION TO CONFIRM This Chapter 13 case was filed by the Debtors on September 18, 1987. It is the second case filed by these Debtors in 1987, they previously in May having filed a case which was dismissed. The facts disclose that, at the time of the filing of the case, the Debtors owned and were in possession of a condominium unit located in Jefferson County, Colorado. The Chapter 13 ...
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MEMORANDUM This disturbing little matter came to draw our full attention on September 15, 1988, when an entity known as AJAX PHILADELPHIA, INC. (hereinafter referred to as “Ajax”) relisted for hearing what it designated as a Motion to Enforce *14 Stipulation, for Contempt of Court, and for Punitive Damages (hereinafter “the Contempt Motion”), against the Debtor, PENA CUASCUT....
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MEMORANDUM OPINION Creditor Meridian Bank (“Meridian”) has filed an objection to an exemption in á pension fund claimed by debtor Richard Hysick (“debtor”) pursuant to 11 U.S.C. § 522(d)(10)(E). Based upon the following analysis, we find that this pension fund constitutes a valid spendthrift trust under state law, and that this is excluded from property of the estate. Meridian’s objection to th...
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MEMORANDUM OPINION ON MOTION FOR RELIEF FROM AUTOMATIC STAY STATEMENT OF THE CASE William B. Elrod, Sr., d/b/a Elrod Moving and Storage Co., Debtor, filed a petition for relief under Chapter 13 of the Bankruptcy Code on June 16, 1986. A plan was *188 confirmed in Debtor’s Chapter 13 bankruptcy case on January 22, 1987. On April 8, 1988, Debtor filed a motion to convert h...
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MEMORANDUM CHRISTOPHER D. ILLICK, THOMAS K. McNEIL, AND KEVIN P. O’BRIEN (hereinafter referred to as “the Movants”), three of four individuals joined as third-party defendants in this proceeding, have moved to dismiss the third-party claims against them on the ground that these claims are not related to the Debtor’s bankruptcy case. This adversary proceeding originally involved only the D...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration in this adversary proceeding is a claim presented by a “Complaint for Turnover” filed by the Trustee, George T. Hadley (Trustee) filed against Laura L. Blair (Ms. Blair), the Defendant named in the Complaint. Also under consideration is a counterclaim filed by Ms. Blair seeking t...
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ORDER ON TRUSTEE’S OBJECTION TO ALLOWANCE OF ADMINISTRATIVE CLAIM OF JOHNSON, BLAKE-LY, POPE, BOKOR & RUPPEL, P.A. THIS CAUSE came on for hearing upon the Trustee’s Objection to Allowance of Administrative Claim of Johnson, Blakely, Pope, Bokor & Ruppel, P.A., (Johnson, Blakely). The Court has considered the Objection, together with the record, heard argument of counsel, and finds the rel...
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ORDER ON MOTION FOR ADEQUATE PROTECTION THIS CAUSE came on for hearing upon a Motion for Adequate Protection filed by NCNB National Bank of Florida (NCNB). The Court has considered the Motion, together with the record, heard argument of counsel, and finds the pertinent facts to be as follows: On February 6, 1985, the Debtor, Mar-Bel Cabinets, Inc., executed a promissory note in favor of NCNB in th...
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MEMORANDUM OPINION AND ORDER * This cause coming on to be heard on the motion of the Federal Deposit Insurance Corporation [FDIC] to alter or amend this Court’s Memorandum Opinion and Order determining the dischargeability of a debt, entered on April 5, 1988, or for a new trial, and the Court, having considered the record and pleadings on file, having con *937 sidered...
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*974 MEMORANDUM OPINION AND ORDER Debtor’s petition for relief under chapter 11 of the Bankruptcy Code was filed on June 17, 1988. American National Bank & Trust Co. (“the Bank”) filed its motion for relief from the automatic stay imposed by 11 U.S.C. § 362 and for a determination of fully secured status on July 29, 1988. A preliminary hearing was held on August 17,1988, at which...
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MEMORANDUM OF DECISION The debtor and Tracey Anne Edwards were married. In September 1986 the debtor contends that he and Tracey entered into an oral agreement in which they agreed to file for divorce, waive spousal support, divide the community property equally, and split the debts for which they were jointly liable so that the other party would be held harmless from a debt paid by the respons...
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OPINION The Debtor and Defendant in this adversary proceeding, MARION THERESA MILLER (hereinafter referred to as “the Debtor”), takes up the suggestion that we offered to a very different debtor in In re Telephonics, Inc., 85 B.R. 312, 318 n. 3 (Bankr.E.D.Pa.1988), to remove a state court proceeding in which a debtor was in the process of attacking a judgment entered therein to...
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MEMORANDUM OPINION SUPPORTING FINAL DISMISSAL OF COUNT I In Count I the Plaintiff Trustee seeks a declaration that the mechanics’ lien claimed by Defendant National Survey Service Inc. against Debtors’ property is invalid and unfavorable. He asks that such lien be set aside under 11 U.S.C. § 544. The basis alleged is the failure of Defendant to file suit to enforce its lien within two years of ...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 11 case filed on July 25, 1988. The matter under consideration is a Motion to Dismiss the Chapter 11 case based on the alleged bad faith of North Redington Beach Associates, Ltd. (Debtor). The Motion is filed pursuant to § 1112(b) of the Bankruptcy Code which authorizes a dismissal for “cause” and cause now has been construed to include the bad...
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ORDER ON MOTION TO ALLOW LATE CLAIMS THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion to Allow Late Claims No. 5, 6, 7 and 8 filed by Betty Patten, Edward Wise, Bruce F. Patten, and Luther Goodin (Movants), creditors in the above-captioned Chapter 7 case. The facts relevant and germane to a resolution of this controversy are as follows: Guarantee Electric, I...
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MEMORANDUM OPINION Debtors filed their petition under Chapter 13 on May 6, 1988. Fidelity Financial Services, Inc. (hereinafter creditor) precipitated same by scheduling foreclosure of its seriously delinquent second deed of trust on debtors’ residence. Creditor’s second deed of trust matures on March 12, 1989 and bears an interest rate of 21% per an-num. Debtors’ plan, however, seeks to lump t...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THESE ARE consolidated Chapter 7 cases, and the matter under consideration is a Motion for Summary Judgment filed by Marion P. Southard (Mrs. Southard), Regina Maria Southard, and Rory Jude Southard, (Defendants) the Defendants in the above-styled adversary proceeding. It is the contention of these Defendants that as to Counts I and VIII of the Complai...
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MEMORANDUM OPINION This matter is based upon a five-count complaint alleging various amounts due Plaintiff as a result of a series of business dealings between the Plaintiff and the De*509fendant. Jomac Construction Company, Inc. (Jomac) has filed an affirmative defense alleging that it is owed monies from Gerald Harris Builder, Inc. (GHB). Most facts essential to this dispute were hotly contested...
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MEMORANDUM TO ORDER DETERMINING EFFECT OF CONFIRMATION OF CHAPTER 11 PLAN ON PRE-PETITION JUDGMENT LIEN This Memorandum is entered to set forth the findings of fact and conclusions of law upon which the Court bases the Order of this date. Debtors, who were Brown County, Minnesota farmers, filed a voluntary petition under Chapter 11 of the Bankruptcy Code in this Court on August 13, 1985. Fors...
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FINDINGS OF FACT CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case, and the matter under consideration is the dischargeability vel non of a debt allegedly owed by Billy Crosswhite (Debtor) to Robert E. Lee (Plaintiff) the Plaintiff who instituted this adversary proceeding. The claim of non-dischargeability is asserted in a three count Complaint. The claim in Count I is ba...
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ORDER ON MOTION FOR RECONSIDERATION OF FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case and the matter under consideration is a Motion for New Trial, Rehearing, Reconsideration and to Alter or Amend Judgment and Findings of Fact and Conclusions of Law. The Motion is filed by John R. Christen (Christen), the Plaintiff who instituted this adversary pr...
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Memorandum of Decision re Board of Equalization The debtor, as debtor in possession, seeks to avoid as preferences payments to the California Board of Equalization made during the preference period in the total sum of $126,566.71. The State concedes that the payments came from the debtor’s general bank account, were for delinquent sales taxes due from prior quarters and not current obliga...
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MEMORANDUM OPINION Adam Sales & Service, Inc. (“Adam”) has moved for relief from the automatic stay imposed under 11 U.S.C. § 362(a). Adam seeks this relief to pursue its complaint in state court against the Debtor for conspiracy to interfere with business expectancy and breach of an employment contract. Adam’s motion will be granted and the automatic stay modified to allow Adam to procee...
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MEMORANDUM OPINION AND ORDER This Chapter 13 case is before the Court for a hearing on confirmation of the Debt- or’s plan and on the motion of Taiman Home Federal Savings and Loan Association to dismiss the case. This Court finds that the present plan is an attempt to achieve a purpose forbidden by Congress, and for that reason cannot satisfy the good faith requirement of 11 U.S.C. § 1325(a)(3...
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*951 AMENDED MEMORANDUM Re: Determination of Secured Status This Court previously entered an Order, which included Findings of Fact, and Conclusions of Law in connection with the determination of secured status of Production Credit Association of the Midlands (PCA) in property of an alleged partnership, namely Waters Brothers Partnership. Timely motions were filed to Amend t...
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OPINION The instant case presents our second major encounter with wage claims, following our decision in In re Konidaris, 87 B.R. 846 (Bankr.E.D.Pa.1988). In Konidaris, the claimant was, however, a sympathetic figure: a waitress who had foregone her salary for two years to attempt to help her restaurant employer to survive. Here, the claimant is much less of a sympat...
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MEMORANDUM OPINION AND ORDER This matter is before this Court on remand from the United States District Court for a determination pursuant to 26 U.S.C. § 6672 1 whether the Debtor acted willfully in failing to collect and pay certain taxes. This Court previously determined that Archie B. Fry was a “responsible person” under that statute. This conclusion has been affirmed by the District Cou...
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*415 MEMORANDUM OF DECISION Sheinfeld, Maley & Kay (“the law firm”) is a partnership engaged in the practice of law in Houston, Texas. The law firm represents the Debtor, Gulf Consolidated Services, Inc. This Chapter 11 case commenced in the Fall of 1986 and, less than one year after its filing, the law firm and Debtor were able to obtain confirmation of a plan of reorganization ...
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MEMORANDUM OPINION AND JUDGMENT Beverly Plaza Associates, a limited partnership (“Beverly”), filed a Chapter 11 case in April 1987. Earlier, its general partner Kroh Brothers Development Company (“Kroh”) filed under Chapter 11 on February 13, 1987. The Saul Real Estate Investment Trust seeks determination that the automatic stay does not apply to a state court declaratory judgment action ...
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MEMORANDUM OPINION This matter comes before the Court on the Debtor’s motion to amend this Court’s order of April 7, 1988 which modified the automatic stay for all purposes as to creditors, Granville Tower Condominium Association (“the Association”) and the First National Bank of Chicago. The facts are undisputed. On May 27, 1986, the Debtor filed his chapter 13 petition. The plan was confirm...
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AMENDED OPINION The parties interested in the Debtor’s instant motion to continue its right to use cash collateral under the same terms as were agreed upon on April 28, 1988, appear to agree that the issue which we must decide in resolving the motion is whether the rents collected by the Defendant, a partnership operating a structure covering an entire city block in the city of Philadelph...
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MEMORANDUM OPINION These three adversary proceedings come before the Court on cross motions for summary judgement filed by the plaintiffs, Sherry Calisoff, Melvyn H. Berks and Owen L. Doss and by the Debtor/Defendant Charles I. Calisoff. The plaintiffs seek an Order declaring that certain debts arising from the Calisoffs’ divorce are non-dis-chargeable because those debts are for the supp...
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ORDER ON DEBTOR’S MOTION FOR PRODUCTION OF DOCUMENTS This case came before the court for hearing on September 9, 1988 upon the “Motion Of Public Service For Production Of Documents” filed September 2, 1988. The motion requested production of various documents pursuant to Bankruptcy Rules 2004 and 9016 from Consolidated Utilities and Communications, Inc. (“CUC”), 595 Madison Avenue, New York, Ne...
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MEMORANDUM OPINION This case is before the Court on the Motion of Burton Graham for the Payment of Rent. Mr. Graham was a fifty percent partner with George B. Glickley (“Glickley Sr.”) in G & G Land Partnership (“G & G Land”), which owned the premises where the Debtor, Modern Steel Treating Company, is located pursuant to an oral lease. Mr. Graham is also a fifty percent shareholder in Modern Ste...
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MEMORANDUM OF OPINION THIS CAUSE came on for trial September 22, 1988, on the complaint of plaintiff, Florida National Bank (“Bank”), seeking exception from discharge of its claim pursuant to 11 U.S.C. § 532(a)(2)(A) and (B). The plaintiff was represented at trial by counsel and the debtor/defendants appeared pro se. The claims plaintiff seeks to have excepted from discharge consist of $5,188...
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AMENDED MEMORANDUM OPINION INTRODUCTION On December 24, 1987, Apex Oil Company, Apex Holding Co., Clark Oil & Refining Corporation (collectively referred to as the “Debtors” herein) and 49 other affiliated companies filed Voluntary Chapter 11 Petitions which were subsequently consolidated for procedural purposes only. On February 26, 1988, the Debtors filed a Motion For Show Cause Or...
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MEMORANDUM OF OPINION This case is before the Court on Creditor Household Finance Company's (HFC) complaint to determine dischargeability of its debt pursuant to 11 U.S.C. § 523(a)(2)(B). A trial was held on August 26, 1988. The Court, having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, and considered the arguments of counsel, makes the f...
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MEMORANDUM OPINION The plaintiff in this adversary proceeding is an attorney who represented the Debt- or’s ex-wife in their marriage dissolution case. The complaint seeks a determination that the Debtor’s obligation to pay attorney’s fees to the plaintiff pursuant to a marital settlement agreement is not dis-chargeable. 1 At the initial status hearing in this proceeding on May...
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MEMORANDUM OPINION The Debtor has moved to modify his confirmed Chapter 13 plan and First Midwest Bank of Waukegan has moved for an Order declaring that it has an equitable mortgage on the Debtor’s residence. At issue is the disposition of the net proceeds (after payment of a first mortgage and other charges against the property) of the sale of that residence. The proposed modification, i...
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MEMORANDUM OF OPINION On November 26, 1986, Patricia Oberst, former spouse of Kieran Oberst, transferred by grant deed a one-half interest in her home to George Templin, III, simultaneously executed a new deed of trust to Home Savings of America for the sum of $82,000, and executed a second deed of trust to James Dunk for $7,000. By the refinance with Home Savings and the new second deed ...
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OPINION I FACTS AND PROCEDURAL HISTORY Debtor, an attorney at law, filed a petition under Chapter 13 of the Bankruptcy Code on September 6, 1985. Debtor’s Chapter 13 Statement listed $5,590 in monthly take-home pay and $4,590 in monthly expenses. Debtor proposed a plan that was subsequently amended. The amended plan provided, inter alia, that the debtor would pay to t...
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MEMORANDUM OPINION THIS MATTER comes before the court upon several motions filed by the defendants Monty Higley and Jonnie Higley (Hig-leys), in this adversary proceeding. 1 The motions alternatively request an order of annulment of the automatic stay, an order of relief from the injunction provided by 11 U.S.C. § 524, an order of nondischargeability, or an order of extension o...
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MEMORANDUM OF DECISION The matter before the court is the plaintiff’s June 17, 1988 motion to amend and enlarge finding pursuant to Bankruptcy Rule 7052. The plaintiff asks the court to amend its June 16, 1988 order finding the debt in issue dischargeable and awarding attorney fees pursuant to 11 U.S.C. section 523(d). Also under consideration at this time is the claim for attorney fees f...
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MEMORANDUM OPINION The plaintiffs received an Order and judgment against the defendant/Debtor in this Court on July 1, 1988. 92 B.R. 346. The Order and judgment granted the plaintiffs’ motions for summary judgment, held certain of the Debtor’s debts non-dis-chargeable and denied the Debtor his discharge under § 727(a). Within the ten day period provided for by Bankruptcy Rule 9023, the De...
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MEMORANDUM OPINION This case is before the Court on Defendant’s Motion for Summary Judgment filed June 15, 1988. Plaintiff, the United States of America (Farmers Home Administration), seeks exception from discharge for its claim under 11 U.S.C. § 523(a)(2)(A). Plaintiff responded to the summary judgment request, and both parties have submitted documents and materials in support of their respect...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the motion of Marvin A. Sicherman (Trustee), for an order requiring Josef and Marie Lah (Debtors) to turn over certain assets of the bankruptcy estate. Upon a hearing and an examination of the pleadings and the record, generally, the motion is granted for the reasons set forth herein. This is a core proceeding under provisio...
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MEMORANDUM OPINION (BENCH RULING ABSTRACT OF OCTOBER 6, 1988) Issues 1) Whether the Bankruptcy Court possesses statutory as well as inherent injunc-tive power to protect property of the estate and to avoid interference with the administration of the reorganization proceedings pursuant to § 105 of the Bankruptcy Code (the “Code”). 2) Whether commencement of the action by CIGA...
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MEMORANDUM OPINION This matter comes before the Court on an objection by Keith L. Phillips, Trustee, (“Trustee”) to the alleged exemption of a spendthrift trust claimed by the debtor in income derived from a certain annuity policy (“annuity” or the “agreement”) in which one of the debtors, Gregory P. Riley (“Mr. Riley”) was named beneficiary. After a hearing on this objection and after co...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on November 4 & 5, 1987, upon the trustee’s second amended motion to resolve the debtors’ federal tax, interest, and penalty for the taxable year ending October 31, 1983. The trustee, Walter Kellogg, appeared in person and by and through counsel, Neil J. O’Brien, Terri A. Hunter, and Roy Morris, of Gardere & Wynne, Dallas, Texas. T...
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*424 MEMORANDUM OPINION On October 22, 1984, the Debtors filed their Petition for Relief under Chapter 13 of Title 11 of the United States Code. On November 28, 1984, GENERAL MOTORS ACCEPTANCE CORPORATION (“GMAC”) filed a Proof of Claim in the amount of Five Thousand, One Hundred Thirteen & 74/100 Dollars ($5,113.74), which amount was fully secured by a lien on a 1980 Buick LeSab...
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MEMORANDUM OPINION This matter comes before the Court on the Debtor’s Motion to avoid three liens on the Debtor’s homestead pursuant to 11 U.S.C. Sec. 522(f)(1). It appears that the Debtor acquired an interest in a condominium unit, which unit is part of the BAZETTA IVY HILLS CONDOMINIUM ASSOCIATION (“BICA”). The purchase was apparently financed by FIRST PENNSYLVANIA BANK. It further...
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MEMORANDUM OPINION This cause comes before the Court on the Amended Complaint filed by the Official Creditors Committee (“OCC”) on April 13, 1987. The Complaint seeks a determination that the transfer and obligations incurred by the Debtor in connection with a leveraged buyout (“LBO”) 1 should be avoided pursuant to both applicable federal and state law. This is a core proceedi...
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MEMORANDUM OPINION This matter came before the Court on the Motion of RENT-A-CENTER (“RAC”) seeking relief from the automatic stay and for an Order of the Court directing the Trustee to abandon any interest of the estate in a television, stereo and VCR. On April 17, 1987, the Debtors executed a purported rental agreement with RAC which provided for rental of a combination stereo/tele...
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MEMORANDUM DECISION GRANTING DEFENDANT’S MOTION FOR REHEARING, APPROVING STIPULATION FOR SETTLEMENT AND ALLOWING CLAIM AGAINST THE ESTATE THIS CAUSE came on before the Court on September 23, 1988, on JOHN R. MILLER’S Motion for Rehearing of Order Denying Defendant’s Motion to Dismiss Adversary Proceeding and to Compel Consideration of Stipulation for Settlement, and •the Court, having heard the...
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DECISION ON MOTION FOR RELIEF FROM SECTION 304 STAY The International Association of Machinists and Aerospace Workers and IAM District Lodge 142 (the IAM) ask that, over the objection of Banco Nacional de Obras y Servicios Públicos, S.N.C. (Banobras), the Mexican bankruptcy trustee of Aeronaves de Mexico, S.A. de C.V. (Aeronaves), I modify a preliminary injunction granted in this ancillar...
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MEMORANDUM OPINION The matter being considered here is the Plaintiff/Debtors’ complaint for damages against Timothy and Roberta Wilson and Anthony and Beulah Anderson. The Plaintiffs’ complaint prays for damages allegedly resulting from a violation of the automatic stay and from an alleged breach of duty by a notary public. In addition, the Plaintiffs seek to set aside a warranty deed and to qu...
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FINDINGS AND CONCLUSIONS This matter is before the Court on the Trustee’s Complaint to Compel Turnover of Property. The parties have stipulated to certain facts in this case; and this Court has determined other facts as necessary to the issue before the Court and makes the following Findings and Conclusions: 1. This matter is a core proceeding over which this Court has jurisdiction pursuant t...
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ORDER This matter came on for hearing on October 6, 1988 upon the Debtor’s oral motion to reinstate the automatic stay. The facts are essentially uncontested. The Debtor’s Chapter 13 Petition was filed on June 9, 1987, and her repayment plan was confirmed on August 12, 1987. The pre-petition arrearage claim on behalf of Goldome Realty Credit Corporation is to be paid within the first 17 months ...
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DECISION ON VALIDITY, EXTENT AND PRIORITY OF LIENS In an adversary proceeding commenced to determine the validity, extent and priority of liens filed by numerous creditors of the debtor, McCorhill Publishing, Inc, the Chapter 11 trustee seeks a determination by this court declaring certain liens void or voidable. To the extent any existing rights and interests of these creditors may be av...
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MEMORANDUM OPINION This is the debtors’ motion to limit the compensation of the standing chapter 13 trustee in this case on the basis of hardship. The motion presents two narrow but significant issues. The first is whether a bankruptcy court retains power to adjust the compensation of a standing chapter 13 trustee following the implementation of the United States Trustee system in this ju...
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*560 MEMORANDUM OPINION The issue presented in this proceeding is whether, pursuant to § 1125(b) of the Bankruptcy Code (the “Code”), a debtor limited partnership must disclose information concerning the net worth of debtor’s general partners in its disclosure statement. JURISDICTION This court has jurisdiction over this bankruptcy case pursuant to 28 U.S.C. § 1334(a) (...
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MEMORANDUM OF OPINION AND ORDER Huntington National Bank (The Bank), a party defendant to the above-styled adversary proceeding, seeks a dismissal of Count IV of the Trustee’s Complaint to recover postpetition and preferential transfers, for claim subordination, and other relief. Upon a pretrial hearing and an examination of the submitted pleadings, the following constitutes the Court’s findings a...
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*556 MEMORANDUM OPINION The proceeding before me is a motion for relief from the automatic stay under § 362(d) of the Bankruptcy Code (the “Motion”) filed by Homestead Savings & Loan Association (“Homestead”). The preliminary hearing was held on April 13, 1988. At that hearing, I ordered the continuation of the stay pending a final hearing which the parties consented to be heard ...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Trustee’s motion for a turnover of funds. Following a hearing with notice thereof to all entitled parties, the Court has reviewed the pleadings and other relevant portions of the record. Pursuant to Rule 7052, the following constitutes the Court’s findings: I. This is a core proceeding under provisions of 28 U.S.C. 157...
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MEMORANDUM OPINION ON MOTION OF FIRST NATIONAL BANK TO MODIFY STAY AND ON DEBTORS MOTIONS FOR SPECIAL MORTGAGE ORDER AND TO MODIFY PLAN In this Chapter 13 case, the secured creditor First National Bank of Chicago has moved to modify the automatic stay under 11 U.S.C. § 362 or alternatively to dismiss the ease. Debtors have moved for entry of a “Special Mortgage Order” and to amend their propose...
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MEMORANDUM OPINION Before the Court is Equibank’s Motion to Modify Stay and For Supplemental *722 Relief to allow enforcement of its security interest in the overpayment of Guterl’s pension plan. 1 The Trustee contends that Equibank’s security interest does not extend to this fund, challenging Equibank’s assertion that it is secured in “dioses in action” or “general intangibles.” The Tr...
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DECISION and ORDER ON OBJECTION TO PCA CLAIM Debtors filed a Chapter 11 petition under the Bankruptcy Code on July 5, 1985. What is now before us is an objection by debtors to a claim of Production Credit Association of the Fourth District (“PCA”) *452 on the ground that the value of their collateral, $157,000.00, is overstated. This question first surfaced, so far as the court is concerned, ...
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MEMORANDUM OF OPINION AND ORDER Defendant, Engineered Protection Systems (EPS), filed a motion for summary *783 judgment on Trustee’s complaint for avoidance and recovery of a preferential transfer. The summary judgment request is based on certain exceptions to preference. There are, however, genuine issues of material fact regarding these exceptions and summary judgment is, ...
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OPINION AND ORDER ON MOTION FOR RECONSIDERATION FACTS The debtors (Brazier) commenced this adversary proceeding in 1984, seeking an order authorizing them to sell an inventory of logs free and clear of liens with the liens attaching to the proceeds of sale. The Rainier National Bank (Rainier), a creditor holding a security interest in the logs; Graves Logging Company (Graves) and Earl Buche Truck...
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*767DECISION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT YII AS AMENDED ON FEBRUARY 10, 1987 ONLY AS TO DEFENDANTS ROY S. NESSETH AND IMOGENE NESSETH. This adversary proceeding is before the court on the trustee’s motion for summary judgment against Roy S. Nesseth and Imogene Nesseth (“Nesseths”) under Bankruptcy Rule 7056 and Fed.R.Civ.P. 56. The trustee’s motion relates o...
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MEMORANDUM DECISION At issue is whether attorney fees incurred in representing the debtors in opposing the trustee’s objections to the debtors’ exemptions may be compensable from the bankruptcy estate. At the hearing on the interim application for fees, debtors’ counsel argued that attorney fees should be paid from the estate because the fees were incurred in benefit of the estate. This cou...
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MEMORANDUM DECISION This case discusses objections raised to an interim application for approval of Debt- or’s counsel’s attorney’s fees. For the following reasons the objections are sustained and the application is denied. Tri-County Water Association, Inc. filed this Chapter 11 Petition on June 22, 1987. The Debtor operates a rural water system on the Cheyenne River Sioux Reservati...
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ORDER This matter is before the court for consideration of the sufficiency of debtor’s disclosure statement and for valuation of debtor’s sole asset, the real property and improvements consisting of a commercial office park known as “Georgetown Square” which is located at 1720 Old Springhouse Lane, Atlanta, DeKalb County, Georgia (“the property”). This is a core proceeding pursuant to 28 ...
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DECISION and ORDER ON: (1) MOTION OF ROSSIN and SNIDER FOR SUMMARY JUDGMENT; (2) PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST SAID DEFENDANTS; and (3) MOTION TO JOIN FREVERT AS A PARTY DEFENDANT This adversary proceeding is brought by a plaintiff who is a Chapter 11 debtor in this court, against an entity identified as Knox Equipment Leasing-1981, Ltd. (“Knox”), and a large numbe...
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ORDER ON MOTION TO RECONSIDER On April 5, 1988 this court conducted a telephonic hearing on the trustee’s objection to debtors’ claim of exemptions. Anita L. Shodeen appeared on behalf of the Chapter 7 trustee, Robert D. Taha. John F. Sprole appeared on behalf of the debtors. At the hearing, the court overruled the trustee’s objection to the debtors’ homestead exemption claim. In doing so the c...
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OPINION Presently before the court is a motion filed by movant, Francisco J. Ortiz, a/k/a Francis J. Ortiz (“movant”), requesting that we abstain from hearing a lawsuit commenced by movant, prior to this chapter 11 proceeding, against debtor, Reading Tube Corporation (“debtor”), and two other defendants in the United States District Court of Puerto Rico. For the reasons *714outlined hereafter, we...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Debtor’s Motion to Confirm their Chapter 13 Plan and Alpine Associates, Inc.’s (“Creditor” or “Alpine”) Objection to confirmation. Hearings were held on June 17 and August 17, 1988. The Court took under advisement the threshold issue raised by the objecting Creditor as to whether or not these Debtors qualify as Ch...
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*504 ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION AND DECLARING STATE STATUTE UNCONSTITUTIONAL On September 16, 1988, the Court convened a hearing on the objection of Debtors’ Chapter 7 Trustee to their claim of exemption under MINN.STAT. § 550.37 subd. 24, to two annuities of a total value of $10,055.71. The Chapter 7 Trustee and his counsel duly appeared; no appearanc...
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MEMORANDUM OPINION This matter has been submitted to the Court after a trial of the issues on October 3, 1988. The Plaintiff’s complaint requests a determination that separate student loans owed to the United States of America and to the State of Missouri are dischargeable in this Chapter 7 case pursuant to 11 U.S.C. *873 § 523(a)(8)(B) because non-dischargeability would impose an undue hards...
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MEMORANDUM The question presented is whether investors can shield withdrawals from Southern Industrial Banking Corporation (“SIBC”) made 90 days before bankruptcy with the ordinary course of business exception in § 547(c)(2). The following constitute findings of fact and conclusions of law. Bankr.R. 7052. This is a core proceeding. 28 U.S.C. § 157(b)(2)(F). FACTS SIBC, one ...
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FINDINGS OF FACT AND DISCUSSION OF LAW AS TO MOTION OF THE DEBTORS. This matter came before the Court on September 27, 1988 for a hearing upon “Motion of the Debtors for Authority to Pay Certain Prepetition Priority Trust Fund Taxes Owed by the Debtors” filed September 7, 1988. Notice of said hearing was given pursuant to Administrative Order No. 1 entered by this Court on August 29, 1988...
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FINDING AS TO CONFIRMATION OF PLAN On May 19, 1988 Linda Ruth Zelnar filed for relief under the provisions of chapter 13 of the Bankruptcy Code. In her petition the debtor listed only three creditors: National City Bank, a secured creditor owed approximately $8,000 on a 1987 Mazda 323 motor vehicle; Bank One of Akron, an unsecured creditor owed the sum of $1,000 on a Visa card; and Cornwe...
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AMENDED MEMORANDUM DECISION I. At issue is whether the- Official Creditors’ Committee (“OCC”) may maintain a cause of action against the Federal Deposit Insurance Corporation (“FDIC”) under Cal. Civ.Code § 3439 (West 1970) for an alleged fraudulent transfer made to Capistrano National Bank (“CNB”) prior to the FDIC’s appointment as receiver for CNB. The FDIC argues that pursuant to 12 U.S.C. § 18...
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MEMORANDUM OPINION The plaintiffs, have filed an application for jury trial on the issues asserted in defendants’ counterclaim. The question addressed by this Court is whether a right to jury trial exists in a compulsory counterclaim action. This Court concludes that no right to jury trial exists because the compulsory counterclaim is a core proceeding, and therefore is not entitled to a ...
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MEMORANDUM OPINION FACTS Jehan-Das, Inc., filed a voluntary petition under Chapter 11 of the Bankruptcy Code on October 20, 1981. The corporation continued to do business as a debtor-in-pos *543 session. No plan was ever confirmed. Due to the debtor’s inability to reorganize, business operations ceased during 1984 and the estate was ultimately liquidated. During the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Bankruptcy Judge. Placid Oil Company (“Placid”) and Placid Building and Service Company (“PBSC”), *184 debtors in possession in the above-captioned Chapter 11 cases (“Debtors”), and Placid International Oil, Ltd. (“PIOL”), Placid Refining Company (“PRC”), Placid Chemical Company (“PCC”) and Placid Oil Company (United Kingdom) (“PUK...
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OPINION This matter came to be heard upon Kenneth Warren’s objections to confirmation of the debtor’s Chapter 13 Plan of Reorganization. Mr. Warren is the ex-husband of the debtor. The divorce decree signed on October 15,1981 granted the debtor certain real property, subject to a lien in favor of Mr. Warren in the amount of $15,000. Mr. Warren subsequently commenced proceedings to foreclose h...
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*84 OPINION FACTS The Debtor, Michael B. Poule, d/b/a M.B. Poule Construction Co. (“Debtor”), was a general contractor, licensed by the Registrar of Contractors of the State of California, Contractors’ State License Board (“Registrar”). On April 23, 1983, the Debtor filed a petition for relief under Chapter 11 of the Bankruptcy Code. The Debtor’s schedules listed a debt to A...
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OPINION This cause is before the Panel on an appeal from two orders of the United States Bankruptcy Court for the Central District of California. The issues involved are as follows: (1) whether the lower court erred in considering the objections of the Internal Revenue Service (“IRS”) to Debt- or’s Plan when such objections were not timely filed; (2) whether error was committed in confirm...
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DECISION ON MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is an adversary proceeding pursuant to Section 523(a)(6) of the Bankruptcy Code (“Code”), 11 U.S.C. § 523(a)(6), by Frank Perino, plaintiff, against Martin Cohen, the debtor-defendant. By motion for summary judgment, Perino here seeks a determination that his claim against the debtor in the sum of $5,000.00, representing co...
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DECISION AND ORDER By cross-motions for summary judgment, we are called upon to determine whether (i) a security interest in hotel room revenues in Nebraska is to be perfected under the Uniform Commercial Code or falls within the exemption of U.C.C. § 9-104(j) and (ii) whether a security interest in rents may be perfected after the filing of a bankruptcy petition pursuant to 11 U.S.C. § 5...
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MEMORANDUM OF OPINION AND ORDER The Plaintiff, Elmira Prusinski, .loaned her former son-in-law, Phillip W. Harper (Debtor) and her daughter, Carole A. Harper (Carole), $25,000.00 to pay off their existing debts and start an accounting business which was to be operated by the Debt- or during their marriage. After the loan was made, the Debtor and Carole were later divorced and repayments on the loa...
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OPINION A. Introduction and Procedural History The instant consolidated proceedings were brought by the Trustee of a Chapter 11 Debtor to avoid, as preferences, pre-petition transfers made by the Debtor to federal and state taxing authorities as payment for that portion of employees’ income taxes which it was obliged to withhold from their pay. It raises several provocative issue...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Stewart P. Chambers (the “trustee”) against William Joseph Benak (the “debtor”) to revoke the debtor’s discharge, pursuant to 11 U.S.C. § 727(d)(1), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the argum...
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OPINION Debtor, David W. Snyder (“debtor”), has filed a motion requesting that we reopen his bankruptcy case so that a complaint may be filed under 11 U.S.C. § 523(a)(1)(C) to determine the dischargeability of a debt allegedly owed to the I.R.S. The I.R.S. opposes this motion arguing that debtor must show “cause” under 11 U.S.C. § 350(b) to obtain a reopening. We disagree. Motions to reopen are go...
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MEMORANDUM OPINION AND ORDER I. The defendants have filed a motion requesting the undersigned judge to recuse himself in this adversary proceeding, pursuant to 28 U.S.C. § 455(a). The defendants contend that certain prior rulings in the By-Rite Oil bankruptcy case suggest that the judge’s impartiality might reasonably be questioned in this adversary proceeding. The plaintiff opposes the motion. T...
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ORDER This adversary proceeding is before the Court on a motion to dismiss filed by defendant, Commercial Credit Financial Corporation f/k/a Textile Banking Company (“Textile Banking”) on March 10, 1988. The Court previously withheld its decision on this motion by Order entered on June 15, 1988, to permit the parties to conduct further discovery in order to develop the factual record of this proc...
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MEMORANDUM OPINION Before the Court are Plaintiff’s Motion for Partial Summary Judgment and Defendant’s Motion for Summary Judgment on Plaintiff’s Complaint, which alleges violations of Pennsylvania’s Mortgage Foreclosure statute, 41 P.S. (Purdon’s) § 404, Pennsylvania’s Unfair Trade Practices statute 73 P.S. (Purdon’s) § 201-1 et seq., and the Truth In Le...
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MEMORANDUM OPINION Before the Court is Debtor’s Complaint for Recovery of Preferential Transfer against Defendant, Mellon Bank, N.A. (“Mellon”). The parties have stipulated to the essential facts, and have reduced the remaining issues to the following: (1) Is the use of a UCC-3 Official Amendment Form sufficient to reflect a name change by a debtor, pursuant to 13 Pa.C.S.A. § 9402(g), there...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint seeking to set aside as a preferential transfer a judicial lien imposed upon property of the plaintiff debtor pursuant to a Final Judgment of Dissolution of Marriage. The trial of this case was consolidated with the adversary proceeding styled as G & R Manufacturing Co, Inc. v. Franc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint seeking to set aside as a preferential transfer a judicial lien imposed upon property of the plaintiff debtor pursuant to a Final Judgment of Dissolution of Marriage concerning Marian Adam Gunia and Frances Jean Gunia. The trial of this case was consolidated with the adversary proceedi...
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OPINION Before us is a motion filed by debtors, John F. Capuano and Donnamarie T. Ca-puano (“debtors”), requesting that we reopen their no asset chapter 7 bankruptcy case so that they may amend their schedules to add Danton A. Ponzol (“Ponzol”) as a creditor. For the reasons set forth hereafter, we grant debtors’ motion to reopen. A brief discussion of the relevant facts follows. Debtor, Mr. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Brac-ton Corporation and Orlando Towers, Inc.’s motion for a superpriority administrative claim pursuant to 11 U.S.C. § 507(b) and Orlando Towers, Inc.’s motion for allowance of an administrative claim for payment of real and personal property taxes. An evidentiary hearing on the motions was held July 19, 1988, and upon ...
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*648 MEMORANDUM OPINION The plaintiff-trustee in bankruptcy in this adversary proceeding seeks a monetary judgment in the amount of $71,130.98 against the defendant Raymond Bertholet, Jr. The trustee’s complaint as originally filed in 1986 requests relief on a number of different grounds but as the matter was ultimately tried before this court, after a series of pre-trial orders ...
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OPINION AND ORDER I. Preliminary Statement The following contested matters are before the Court for decision: (1) the Motion for Treatment of Claim filed by Frank M. Pees, the standing Chapter 13 trustee (“Trustee”); (2) the motions for modification of debtors’ Chapter 13 plan (collectively referred to as the “Modification Motions”), filed by the Trustee, Cheers Com...
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OPINION AND ORDER I. Preliminary Statement The following contested matters are before the Court for decision in this Chapter 11 case: (1) The Motion for Payment of Priority Contributions to Employee Benefit Plan (the “Employee Benefit Motion”) filed by Structurlite Plastics Corporation, the debtor and debtor-in-possession (“Debtor” or “Structur-lite”); (2) The Motio...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Jerry-Sue Fashions, Inc. (the “debtor”) to recover preferential payments made to I.T. Associates, Inc. (the “creditor”), pursuant to 11 U.S.C. § 547(b) and § 550(a), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, con...
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OPINION AND ORDER ON DIS-CHARGEABILITY OF DEBT I. Preliminary Matters This matter is before the Court following trial of an adversary proceeding brought by Kemba Columbus Credit Union, Inc. (“Kemba”) against the debtor, Betty Short (“Debtor”). The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core...
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ORDER DENYING MOTION OF CAMBRIDGE PRODUCTION CREDIT ASSOCIATION FOR RELIEF FROM STIPULATION I. Preliminary Statement This matter is before the Court upon the Motion for Relief from Stipulation (“Motion”) filed by Cambridge Production Credit Association. An opposing memorandum was filed by Frank M. Pees, the standing Chapter 13 trustee (“Trustee”). The Court has jurisdiction o...
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OPINION AND ORDER ON DIS-CHARGEABILITY OF DEBT I. Preliminary Matters This adversary proceeding is before the Court on a Complaint to Determine Dis-chargeability filed by the Columbus Municipal Employees Federal Credit Union (the “Credit Union”) against Regina L. Moore (“Moore”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order...
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ORDER ON FIRST AMENDED DISCLOSURE STATEMENT I. Preliminary Considerations This matter is before the Court upon the request of Scioto Valley Mortgage Company (the “Debtor”) for approval of its First Amended Disclosure Statement (“Disclosure Statement”).' Objections to the Debt- or’s request for approval have been filed by William G. Hayes, Jr., Trustee for Beacon Securities, Inc. and its con...
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ORDER DENYING APPLICATION FOR APPOINTMENT OF ATTORNEY FOR DEBTOR AND DEBTOR IN POSSESSION I. Preliminary Statement This matter is before the Court on the Application for Appointment of Attorney for Debtor and Debtor in Possession (“Application”), filed by Shelly’s, Inc. on June 20, 1988. The Application is supported by a memorandum of law (“Memorandum”) and the Affidavit of R...
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OPINION AND ORDER I. Preliminary Statement This matter is before the Court upon the Motion to Dismiss filed by the defendant, Joseph S. Bathalter, Jr., the debtor in a voluntary Chapter 7 proceeding pending before this Court (Case No. 2-87-00538) (“Defendant”). The Defendant’s motion seeks dismissal of the Complaint to Determine Dischargeability of A Debt filed by Heller Financial, Inc., fdba Nati...
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*270 OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This adversary proceeding is before the Court pursuant to a complaint filed by Sandra Shelton, former wife of the debtor, Ronald Donzie Shelton, seeking a judgment that certain debts arising from the parties’ divorce are excepted from the general discharge pursuant to 11 U.S.C. § 523(a)(5). The Court has ju...
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OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This adversary proceeding is before the Court pursuant to a complaint filed by Lena M. Skaggs, former wife of the debtor, Joe M. Skaggs, seeking a judgment that certain debts arising from the parties’ divorce are excepted from the general discharge pursuant to 11 U.S.C. § 523(a)(5). The Court has jurisdiction in this adv...
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ORDER DENYING OBJECTION TO CONFIRMATION AND MOTION TO DISMISS This matter is before the Court upon an Objection to Confirmation (“Objection”) *536 filed by Bank One, Columbus, N.A. (“Bank One”). The matter was heard by the Court on May 10, 1988 and taken under advisement. The parties were invited, but have chosen not to, file post-hearing briefs. The Court has jurisdiction of this matter un...
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OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT I. Preliminary Statement This matter is before the Court upon the Motion For Summary Judgment filed by the plaintiff, Frederick M. Luper, the trustee for the Estate of Steven E. Walls, the debtor in a voluntary Chapter 7 case pending before the Court (Case No. 2-86-02633) (“Trustee”), and the memorandum contra filed by Southeastern Equipment Co., I...
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MEMORANDUM OPINION A preliminary issue requiring resolution at the hearing on confirmation involved the determination of the market rate of interest that debtor is required to pay on the “forced” loans in debtor’s plan of arrangement in order to satisfy the requirements of § 1129(b)(2)(A)(i)(II) of the Bankruptcy Code. After hearing the evidence, I took the matter under submission advisin...
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MEMORANDUM OPINION This chapter 11 case is presently before the court upon a Complaint For Determination Of Validity, Priority, And Extent Of BayBank’s Lien filed by plaintiff-debtor, John Oliver Co., Inc. (hereinafter “debtor”). Defendant, BayBank Merrimack Valley, N.A. (hereinafter “BayBank”), has filed an Answer, and both parties have filed motions for summary judgment. The issue ...
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MEMORANDUM OF DECISION The Debtor filed a COMPLAINT TO AVOID LIEN under 11 U.S.C. § 522(f) against ITT Financial Corporation. After a hearing on August 30, 1988, the Court holds that the creditor’s lien in “seven antique guns” may not be avoided under § 522(f). *914 FACTS In September 1985, the Debtor obtained a loan from ITT Financial Services for $2,695.94. The loan w...
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ORDER The hearing to consider confirmation of the Debtor’s proposed plan was called on October 12, 1988. The Debtor appeared in person and by counsel and presented certain testimony in support of her request to confirm her plan. Upon consideration of the record as a whole, the Court announced certain findings and conclusions and orders from the bench as follows: The Debtor is currently unemployed....
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OPINION AND ORDER This case is before the court on the Debt- or’s objection to the Internal Revenue Service’s proof of claim. The Chapter 7 Debt- or objects because the Internal Revenue Service did not follow the Debtor’s instructions that its prepetition tax overpayments be applied to its prepetition trust fund tax liability. FACTS On January 12, 1983, Shreve Steel Erection, In...
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OPINION AND ORDER OVERRULING OBJECTION TO CONFIRMATION This matter is before the Court upon an objection to confirmation of the Chapter 13 plan proposed by Kerry L. Keffer and Donna G. Keffer. The objection was filed by Credithrift of America, Inc. (“Credithrift”) and presented at the hearing held to consider confirmation of debtors’ plan. The parties were granted seven (7) days from the ...
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OPINION AND ORDER DENYING CONFIRMATION OF DEBTOR’S AMENDED CHAPTER 13 PLAN I. Preliminary Statement This matter is before the Court following a hearing held to consider confirmation of the Amended Chapter 13 Plan (“Plan”) filed by Michael P. Stein and Linda Stein (“Debtors”). The confirmation hearing was held in this case on May 10, 1988, following which the Court took under ...
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MEMORANDUM OPINION ON MOTION FOR SUBORDINATION OF NOTE-HOLDER CLAIMS TO TRADE CREDITOR CLAIMS On August 8, 1988 the United States Trustee filed in this chapter 11 reorganization proceeding a “Motion For Subordination Of Investor Claims To Trade Creditor Claims” in which she sought an order determining that “the claims of unsecured creditors who invested in debtors’ notes be subordinated t...
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OPINION AND ORDER I. Preliminary Statement This matter is before the Court upon the Complaint for Preference filed by William B. Logan, Jr., the duly-appointed Chapter 7 trustee (“Trustee”) in this case. The defendants herein, the debtor Charles Lee Trott and Columbus Postal Employees Credit Union, Inc. (“Credit Union”), have filed timely answers to the Trustee’s Complaint. A...
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MEMORANDUM DECISION ON APPLICATION FOR INJUNCTION OR STAY Fortunately, since the issuance of the decision by our circuit court of appeals in Ross v. Kirschenbaum (In re Beck Industries, Inc.), 605 F.2d 624 (2d Cir.1979), it is indeed rare that the bankruptcy court is confronted with an assertion that the integrity of an auction sale which it held was tainted by the conduct of a...
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MEMORANDUM OPINION This adversary proceeding comes before the Court on the complaint of Britton Mo *920 tor Service, Inc. (“Britton”) objecting to the discharge of debtor/defendant Michael J. Krich (“Krich”) for violations of 11 U.S.C. § 727(a)(2), (a)(4)(A). For the reasons set forth below, the Court having considered all the pleadings, and the evidence adduced at trial, does hereby sustai...
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MEMORANDUM OF DECISION Defendant Balzer/Shopes, Inc. (“Balzer”) moves for summary judgment in its favor against Plaintiff (the “Trustee”) and dismissal of the instant preference action. For the reasons stated below, the motion is granted. SUMMARY OF FACTS There are no material facts in dispute. The facts are as follows: Prior to the filing of its bankruptcy petition, the debtor (the “Debtor”) was...
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ORDER DENYING REHEARING The debtor’s motion (CP 47) to reconsider the Order Denying Confirmation and Dismissing Case dated August 24 (CP 45) was heard September 20. The motion is denied. The debtor raises three points. He argues first that Class 3 was impaired by the plan, because payment of this class was delayed by the plan. That was not the case. The plan provided for payment “no later than Jul...
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ORDER DENYING CONVERSION AND RESERVING RULING ON DEBTOR’S MOTION TO CORRECT CLERICAL ERROR The motion (CP 150) of the New York trustee in opposition to the Notice of Conversion to Chapter 7 filed September 8 (CP 147a) was heard September 20. The motion also sought leave to correct a clerical error in the movant’s confirmed plan. Consideration of that aspect of the motion is deferred to the hearin...
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ORDER DENYING REHEARING The debtor’s motion (CP 146) for reconsideration of the Order Denying Confirmation and Converting Case dated August 12 was heard September 6. At the hearing, the debtor submitted an Amended Motion for Rehearing (CP 148). Though it came after the deadline for the motion has expired, I have considered the amendment. The debtor proffers a letter from an accountant dated A...
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OPINION AND ORDER Creditors’ Committee (hereinafter “Plaintiff”) commenced this proceeding to set aside alleged preferential and fraudulent transfers and to recover property or its value. The count against defendant, Joseph V. Spada, Sr. (hereinafter “Spada”) was settled by Stipulation and, consequently, this Court will discuss Spada’s involvement only to the extent that it is pertinent t...
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ORDER DENYING MOTION TO DISMISS This case came on for hearing on the United States Trustee’s motion to dismiss this case under 11 U.S.C. § 707(b). Michael R. Fadlovich appeared for the United States Trustee. Craig W. Andresen appeared for the debtors. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334 and Local Rule 103(b). This is a core proceeding. Based on the evidence, the ar...
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ORDER REOPENING CASES United Pacific Insurance Company (United) moved on August 19 under 11 U.S.C. § 350(b) and B.R. 5010 to reopen these closed cases. It seeks modification of a permanent injunction to allow United to enforce a $2.3 million obligation allegedly assumed by Evans Asset Holding Company (EAHC), the liquidating corporation formed pursuant to the chapter 11 plan confirmed in t...
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MEMORANDUM DECISION The plaintiff trustee opposes the debtor’s discharge under 11 U.S.C. § 727(a)(4)(A) and (D) and (a)(5). The debtor has answered and the matter was tried on August 23. On April 29, the day after the initial creditors’ meeting, a month after this chapter 11 case was voluntarily converted to chapter 7 and the trustee was appointed, the trustee made a written request for 25 se...
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ORDER ON SECOND INTERIM FEE APPLICATION The Second Amended Application of the debtor’s accountant for interim compensation (CP 60) was heard September 6. This application was prompted by an Order (CP 58) of August 11 denying without prejudice the applicant’s earlier application (CP 41), because it included compensation for services provided before movant’s employment was authorized. This applic...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on July 25, 1988, to determine whether an order for relief should be entered in response to the filing of an involuntary petition in bankruptcy. The petitioning creditor, Lawrence National Bank & Trust Company, appeared by and through counsel, Donald E. Bucher. The respondent, Robin Leach, appeared in person and through counsel, F....
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ORDER ON U.S. TRUSTEE’S OBJECTION TO PLAN OF REORGANIZATION This matter came before the Court for hearing on Thursday, October 20, 1988, at 10:30 a.m. on the Emergency Motion and Memorandum of Law by U.S. Trustee Requesting Ruling on Objections to Plan of Reorganization (the “Motion”). The Court heard the arguments of the U.S. Trustee, the Trustee, the Creditors’ Committee, and other parties in...
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MEMORANDUM DECISION The plaintiff bank seeks exception from discharge under 11 U.S.C. § 523(a)(2)(B) for its claim in the amount of $85,000. The debtor has answered and the matter was tried on August 25. A promissory note dated January 6, 1986 in the amount of $60,000 and a second note dated January 17, 1986 in the amount of $25,000 were executed by the debtor for the extension of credit from the ...
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MEMORANDUM OPINION AND ORDER Before the Court is a motion of Bayside Fuel Oil Depot Corp. (“Bayside”), a creditor in the above-captioned Chapter 11 case, seeking authorization to commence an adversary proceeding on behalf of the Debtor *656 against Ferrantino & Company, Inc. (“Fer-rantino”), for the recovery of alleged fraudulent conveyances. For the reasons discussed below, ...
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AMENDED OPINION AWARDING SURCHARGE ON COLLATERAL OF SECURED CREDITOR 7. Introduction This contested matter raises the question of whether the Chapter 11 trustee in a failed reorganization case may surcharge the collateral of the secured creditor American Savings & Loan Association (“American”) for expenses incurred in the completion of the shopping center and office building ...
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*832 MEMORANDUM ON MOTION TO ALTER OR AMEND ORDER DISMISSING CHAPTER 13 CASE AND DIRECTING DISTRIBUTION OF FUNDS AND MOTION TO VACATE The court has before it two motions filed October 5, 1988, by the debtor’s former employer, Peter J. Galante, d/b/a Best Security Consultants: (1) a “Motion To Alter Or Amend Order Dismissing Chapter 13 Case And Directing Distribution Of Funds”; an...
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MEMORANDUM OPINION This matter comes to be heard before the Court on the motion of Concordia Federal Bank for Savings (“Concordia”) pursuant to Federal Rule of Bankruptcy Procedure 9011 for sanctions against the debtors Robert E. Pasko and Dorothy Pasko and their attorney John Knapp. The debtors and their attorney failed to answer any of the allegations in Concordia’s motion for sanctions...
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MEMORANDUM OPINION This matter comes before the Court on motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 incorporated by Federal Rule of Bankruptcy Procedure 7056 filed by Bernard Chaitman (the “Trustee”) as trustee for the estate of Candy Braz, Inc. (“Candy Braz”) on objections to the allowance of claims filed by Mahmud Issa Mohmad Saleh (“Issa”) and Ibrehim Sayes (“Sa...
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MEMORANDUM OPINION This matter comes before the Court on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 incorporated by Federal Rule of Bankruptcy Procedure 7056 filed by Bernard Chaitman (the “Trustee”) as trustee for the estate of Candy Braz, Inc. (“Candy Braz”) on an objection to the allowance of a claim filed by the Illinois Department of Revenue (the “De...
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MEMORANDUM AND ORDER On March 16, 1987, a paternity judgment was entered in state court establishing that debtor, Michael Barbre, is the natural father of plaintiff, Mariah Dawn Smith, a minor child. On July 14, 1987, after hearing evidence on the issues of child support and attorney fees, the state court entered judgment requiring debtor to pay child support of $635.00 per month and orde...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS CAUSE came on to be heard upon the Motion for Summary Judgment filed by Plaintiff George Chang. On October 29, 1987, Plaintiff filed an adversary proceeding seeking a determination that a stipulated final judgment entered by a State of California court was nondischargeable under Section 523(a)(2)(A). The gravamen of Plaintiff’s Motion for Su...
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OPINION AND ORDER The facts of this matter are straightforward and not disputed. The debtor, Michael Etheridge, (Debtor) operated a lumber yard in Aledo, Illinois, and incurred retailer occupation taxes to the State of Illinois (State). On October 2, 1985, the Debtor filed a timely return for the period of September, 1985, showing $1,148.00 in taxes due the State. On October 9, 1985, the Debtor...
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OPINION ERISA QUALIFICATION AND THE BANKRUPTCY CODE Originally, the debtor, David B. Witte, M.D., and the Trustee, Richard Remes, had filed a joint motion asking this court to determine under 11 U.S.C. § 505 that a distribution of $225,000 from the debtor’s profit-sharing plan interest to the trustee and ultimately to an unsecured creditor would not deprive that plan or its participa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The evidentiary hearing on the ownership of certain materials turned over by A-l Hydro Mechanics Corporation (“Defendant”), the above-named Debtor, to Towne Realty, Inc. and Towne Realty of Hawaii, Inc. (collectively “Plaintiff”), pursuant to the Order Granting Motion for Temporary Restraining Order entered herein on February 18,1988, was held on Ma...
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MEMORANDUM AND ORDER On January 7, 1987, a judgment in the amount of $115,232.06 was entered in Marion County Circuit Court for plaintiff, Robert D. Miller, and against debtor, Salem Energy Supplies and Services, Inc. On January 8,1987, plaintiff caused a certified copy of the judgment to be placed in the hands of the Sheriff of Marion County, and, on January 12, 1987, the judgment was du...
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ORDER Heard on September 14, 1988, on the defendants’, Roger Begin, General Treasurer of the State of Rhode Island; Nancy V. Bordeleau, Director of the Department of Human Services of the State of Rhode Island; James E. O’Neil, Attorney General of the State of Rhode Island; and the State of Rhode Island and Providence Plantations (hereinafter the “State”), Motion to Dismiss the complaint ...
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OPINION This is an action by Cleon Township and Manistee County to recover the unpaid personal property taxes on an oil well drilling rig for the year 1982. This action involves the relative priorities of the tax lien of the taxing units and the consensual lien of Harris Trust & Savings Bank (Harris). Manistee County and Cleon Township are making the same claim and hereafter will be ...
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MEMORANDUM OPINION This matter comes before the court on Interstate Production Credit Association’s (IPCA) Motion to Dismiss. BACKGROUND On July 7, 1987 debtors Williams Land Co., Inc. (Williams- Land) and W-3 Livestock, Co., Inc. (W-3) filed separate petitions for relief under Chapter 12 of the Bankruptcy Code. On March 8, 1988 W-3 and Williams Land filed identical Chapter 12 reorganizat...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER is before the Court on Motions for Summary Judgment filed by the Plaintiff, Sheldon R. Moses (Debtor) and United States Department of Education (Defendant). The matter involves the application of the Debtor’s income tax refund against a defaulted student loan obligation. Certain facts relevant and germane to the motions are undisputed and c...
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MEMORANDUM OPINION This matter comes before the court upon the court’s order to show cause why this case should not be dismissed for lack of subject matter jurisdiction. BACKGROUND Earl L. Grassman and his wife, Carol L. Grassman, were debtors in a Chapter 13 proceeding which was pending when Earl L. Grassman died on July 28, 1985. The Chapter 13 proceeding was subsequently dismissed on March 24, ...
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These Findings of Fact, Conclusions of Law and Order deal with the Application for Payment of Administrative Expense and Adjudication of Continued Motions (“Application for Payment”) originally filed on September 2, 1987 by Henry A. Gomes, Trustee of the Gomes Land Trust (“Gomes”) and which, on October 2, 1987, was continued until moved on, and the Motion for Interest on Funds Previously held b...
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*502 MEMORANDUM OPINION This civil proceeding comes before the court on the trustee’s Motion for Summary Judgment. Oral arguments on the motion were heard by the court on June 2, 1988. At the hearing, Peter W. Billings, Jr., and Gary E. Jubber, of Fabian & Clendenin, Salt Lake City, Utah, appeared on behalf of the trustee; N. George Daines, of Daines & Kane, Logan, Utah, represen...
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*808DECISION The facts in this case are undisputed and are set forth in ample detail in the court file. To summarize, the debtors filed their Chapter 13 on September 22, 1983. The plan was confirmed on October 21, 1983, was completed and a discharge was issued on January 11, 1985. Creditors that filed claims were paid approximately 10% of their claims. Believing that they were no longer liable to ...
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ORDER GRANTING MOTION TO DISMISS On September 29,1988, we held a pre-trial conference on the defendant/debtor, Robert E. Donnelly’s (hereinafter “Donnelly”), Answer to plaintiffs’, Carmen P. and Joseph P. Boscia & Sons, Inc. (hereinafter “Boscia”), Amended Complaint. Donnelly, in his answer asserts that Boscia’s amended complaint fails to state a claim upon which relief can be granted, an...
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OPINION This matter is before the Court upon motion of William Bradley Chisholm and Thu Chisholm (collectively “movants”) seeking an order vacating the automatic stay pursuant to 11 U.S.C. § 362 to allow the movants to continue personal injury suits pending in the United States District Court for the Central District of California and in the Superior Court of the State of California again...
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MEMORANDUM OPINION Northeastern Bank of Pennsylvania (“Northeastern”) presses its objection to the confirmation of debtor Charles T. Seem’s (“debtor”) chapter 13 plan. We sustain Northeastern’s objections. 1 Northeastern holds a senior blanket mortgage covering two parcels of real property owned by debtor. The parties have stipulated that debtor owes $13,432.32 in pre-petition arrearages, a...
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OPINION We herein consider certain Objections raised by JEROME JORDAN, a Chapter 13 *674 Debtor (hereinafter “the Debtor”), to a Proof of Claim filed by a party holding a second mortgage on his residential realty, Mid-Penn Consumer Discount Company (hereinafter “the Claimant”). The principal contest is over entries on an Amended Proof of Claim for pre-petition “late charges” ...
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MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT WITH RESPECT TO TERMINATION CHARGE These motions arise in a contest over proceeds from the sale of the Debtor’s assets. In June, 1987, an order authorizing the sale of substantially all of the Debtor’s operating assets was entered. The order contemplated that all debts secured by the assets would be paid in full from the proceeds....
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DECISION This matter is before the court on the debtors’ MOTION FOR RELIEF FROM ORDER filed February 29, 1988. The issue centers on the debtors’ request for relief from the pure lost economic opportunity payments ordered by this court on July 8, 1987 1 , in light of the U.S. Supreme Court’s decision in United Savings Assn. of Texas v. Timbers of Inwood Forest Assoc., Ltd....
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MEMORANDUM OPINION This Court is cognizant of the substantial appellate precedent creating and setting in concrete the “filed rate doctrine”. This Court is also aware of its duty to comply *638 with the directives and precedent tendered by courts having superior status. However, the recent overhaul of the Interstate Commerce Act demonstrates that deregulation was and is the C...
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OPINION & ORDER This matter is before the Court on a Motion of the United Penn Bank (hereinafter Bank) requesting permission to file a Proof of Claim Nunc Pro Tunc. For the reasons provided herein, we find the Bank’s claim was timely filed in debtor’s superseded Chapter 11 proceeding and, therefore, it was not necessary for the Bank to file a separate claim after this case was converted to one un...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM NUMBER 23 THIS IS a Chapter 7 liquidation case and the matter under consideration is an Objection to Claim Number 23 filed by Action Temps, Inc. The claim under challenge is filed in the amount of $104,662 by Action Temps, Inc. (Action Temps). The claim is filed as a priority wage claim and as such is claimed to be entitled to priority treatment pursuant to...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 liquidation case and the matter under consideration is a Motion to Dismiss a Counterclaim and Affirmative Defenses to the Complaint filed by Paul W. Pattie, the Debtor involved in this Chapter 7 case. The Counterclaim under attack is asserted by Thelma A. Pattie who is the named Defendant in the Complaint filed by the Debtor who seeks a determination ...
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ORDER This case is before the Court on the debtor’s objection to a claim by a landlord *965 on a guaranty of a commercial lease. The debtor argues that the allowable claim is limited by 11 U.S.C. § 502(b)(6). The creditor argues that § 502(b)(6) does not apply to limit a claim against a solvent guarantor, and, alternatively, that if it does apply, that the landlord has suffer...
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ORDER ON PARTIAL MOTIONS FOR SUMMARY JUDGMENT THIS CAUSE came on for hearing with notice upon Motions for Partial Summary Judgment filed both by the Plaintiff, School Pictures of Mississippi, Inc. (Plaintiff), and by the Defendant, Newton Alfred Winn (Debtor). It is the contention of both parties that as to Count IV of the Complaint there are no genuine issues of material fact and, therefore,...
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OPINION AND ORDER Creditor/Landlord New 1211 Connecticut, Inc. (“New 1211”) has filed a motion for reconsideration urging the Court to require the Debtor to pay New 1211 $101,-980.66 in administrative rent, rather than the $31,561 allowed by this Court’s September 14, 1987 Order partially allowing New 1211’s administrative claims. The Court found that there was an oral modification to the lease by...
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ORDER ON ORAL JOINT MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case and the matter under consideration is the right of Talbot Wilson and Virginia Wilson (Plaintiffs), his wife, to certain funds currently in the possession of the Trustee of the estate, who is the named Defendant in the above-captioned adversary proceeding. The underlying facts relevant to the resolution of the thr...
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ORDER ON TRUSTEE’S MOTION TO EXAMINE DEBTOR’S TRANSACTIONS WITH ATTORNEYS THIS IS a stockholder liquidation case under sub-Chapter III of Chapter 7 of the Bankruptcy Code. The matter under consideration is a proceeding instituted by George Hadley (Trustee), who seeks a reexamination of fees paid to the law firm of Labozetta and Hass, P.A., a New York law firm, and/or to Anthony Labozetta ...
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MEMORANDUM OPINION The matter before the Court for decision involves a objection by A.P. Propane, Inc., to the allowance of an unsecured claim filed by Monger Coal & Oil Co., Inc. A.P. Propane, Inc. (herein A.P. Propane) contends that Monger Coal & Oil, Co., Inc. (herein Monger) did not file a timely proof of claim pursuant to Bankruptcy Rule 3002(c)(3). Monger, on the other hand, request...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 13 case commenced by a Voluntary Petition filed by Charles Newsome, the Debtor, on Fébruary 4,1988. The immediate matter under consideration *942 is a Motion to Dismiss filed by Miguel Arenillas (Arenillas). The Motion of Arenillas is based on the alleged bad faith of the Debtor seeking relief under Chapter 13 of the Bankruptcy Code. In support o...
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ORDER On August 31,1988, the Court conducted a hearing in the above-referenced Chapter 11 case on an application requesting payment of interim compensation for professional services rendered by counsel for the debtor-in-possession, the law firm of Greene, Buckley, DeRieux & Jones (hereinafter, “Applicant”). The Applicant had filed its fee request on August 3, 1988 for services performed f...
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MEMORANDUM AND DECISION ON CHAPTER 13 ELIGIBILITY UNDER CODE § 109(e) The issue before the court is whether a chapter 13 debtor may fund her plan with monthly payments from her husband. The chapter 13 trustee recommends confirmation; there is no objection. For the reasons that follow, I conclude that these payments constitute “regular income”. Bankruptcy Code § 109(e) provides in par...
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ORDER On March 22, 1988, and May 10, 1988, the court held hearings on a motion to dismiss filed by Colwell Financial Corporation, Colwell Mortgage Corporation, Ben Milam Savings Association, and Mercury Savings Association (“Colwell”). Colwell subsequently filed a motion to convert this case to a case under Chapter 7 of the Bankruptcy Code. Colwell contends that the debtor Virgil Pulliam ...
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ORDER On April 25, 1988, the court held a hearing on Merrill Lynch Private Capital, Inc.’s (“Merrill Lynch”) motion to confirm the election of Daniel C. Stewart as permanent trustee. The interim trustee contends that the motion should be denied because Merrill Lynch was the only creditor that voted and it should not have been allowed to vote. The court took the motion under advisement to ...
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MEMORANDUM OPINION AND ORDER On June 30, 1988, the court granted a motion filed by Gregg Pritchard, trustee in this chapter 7 case, for a bankruptcy rule 2004 examination of the debtor. The debt- or’s counsel of record consented to the examination. On July 7, 1988, the court entered its order requiring the debtor to submit to the examination. The debtor appeared at the scheduled 2004 examinatio...
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ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS A motion has been filed in this case by Dennis Michael Richards, seeking to proceed in bankruptcy in forma pauperis. The motion was accompanied by an affidavit in support of indigency. Richards cites no authority under which he may file a bankruptcy case and proceed in forma pauperis. It appears, however, that he is relying upon 28 U.S.C. ...
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ORDER DENYING APPLICATION FOR ATTORNEY FEES This matter is before the Court upon an Application for Compensation for Extraordinary Services Rendered Over and Above Standard Fee Provided filed on June 9, 1988 by Robert H. Farber, Jr., attorney for Chapter 13 debtor Robert C. Ashton. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference in this d...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Plaintiff’s Complaint to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523(a)(5). The Plaintiff filed a Motion for Determination of Complaint Based on Written Submissions since no material facts were in dispute and believed this matter could be decided on the basis of applicable law. No objection to this m...
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RECOMMENDATIONS TO DISTRICT COURT FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW IN PROCEEDING FOR POSSIBLE CRIMINAL CONTEMPT UNDER BANKRUPTCY RULE 9020 On March 19, 1987 following hearing held, this Court recommended to the District Court that attorney Thomas Holstein be censured and given limited supervision from practicing under Chapter 13 of 11 U.S.C. On November 17, 1987, the District c...
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OPINION The plaintiff seeks to enjoin the State of Oregon from revoking the plaintiffs probation for failure to make restitution payments. The plaintiff was represented by Eric Olsen of Salem, Oregon. The defendants appeared through Mary Lou Calvin, Assistant Attorney General. The plaintiff was convicted of four counts of passing bad checks. The court sentenced the plaintiff to a term of probation...
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MEMORANDUM OF DECISION (Motion for Reconsideration) The debtor, Michael G. Bracey, through counsel filed a motion for reconsideration of this court’s order of July 18, 1988, dismissing the case. Following the order of dismissal, the clerk of the court reported the case as closed. The court will adhere to its previous order dismissing the case and deny the motion for reconsideration for the re...
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ORDER ON OBJECTION TO CLAIM OF FIRST INVESTMENT COMPANY Chapter 13 debtor Jeffrey A. Bristol, through his attorney, has objected to the allowance of a portion of claim # 8, filed by First Investment Company (“Investment”). Investment opposed the objection and the matter was heard by the Court. *277 The Court has jurisdiction in this contested matter under 28 U.S.C. § 1334(b)...
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ORDER DECLINING TO APPOINT ELECTED TRUSTEE AND CONTINUING INTERIM TRUSTEE AS TRUSTEE OF ESTATE This matter is before the Court upon a report of election, an objection to the election and a response to that objection. The matters were heard by the Court. The Court has jurisdiction in this contested matter under 28 U.S.C. § 1334(b) and the General Order of Reference entered in this dis...
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OPINION AND ORDER OVERRULING OBJECTION TO SALE This matter is before the Court upon an objection to a proposed sale of personal property which was first noticed to all creditors on April 15, 1988 by Thomas H. Grace, the duly appointed trustee in bankruptcy (“Trustee”). The sale was opposed initially by David Calvert and that objection was overruled by the Court. Because the objection proc...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND SETTING TRIAL DATE This matter is before the Court on the merits of plaintiff Robert C. Ward’s motion seeking summary judgment. The motion was opposed by defendant Kenneth H. Roberson and is before the Court for decision. The Court has jurisdiction in this proceeding under 28 U.S.C. § 1334(b) and the General Order of Reference entered ...
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OPINION AND ORDER UPON OBJECTION TO CLAIM This matter is before the Court upon the Objection to Allowance of Claim (“Objection”) filed by the debtors in this Chapter 13 case. Debtors object to allowance of the claim filed by Ligón Specialized Hauler, Inc. (“Ligón”) in the amount of $5,463.01. Ligón contends that the entire $5,463.01 amount should be treated as a secured claim by the stand...
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ORDER SUSTAINING MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Thomas C. Scott, the trustee in bankruptcy (“Trustee”) for the Chapter 7 case of Ronnie D. Williams, has filed a motion seeking partial summary judgment in this adversary proceeding. The Trustee’s motion, which seeks judgment on Count I of the complaint, was opposed by defendant Fifth Third Bank (“Bank”). Following a reply to the Bank’...
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ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN This matter is before the Court upon the requested confirmation of a Chapter 13 plan proposed by Jack L. McClaskie and upon this Court’s independent obligation to find that all statutory tests for confirmation, as set forth in 11 U.S.C. § 1325, are met. In this case the confirmation standard in question is the requirement that the plan comply “with ...
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MEMORANDUM OPINION Before the Court is Plaintiff’s Complaint Objecting To Debtor’s Discharge, pursuant to § 727 of the Bankruptcy Code. 1 Specifically, Plaintiff contests Debtor’s discharge under §§ 727(a)(4) and (a)(5), asserting that Thomas E. Ward, Jr. and Nancy C. Ward knowingly and fraudulently made numerous false oaths and accounts, and that they have failed to explain th...
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MEMORANDUM AND DECISION ON SANCTIONS UNDER BANKRUPTCY RULE 9011(a) Bankruptcy Rule 9011(a) requires that sanctions be imposed upon an attorney who advocates a position even though it is “patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands.... ” ...
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OPINION AND ORDER ON OBJECTION TO CLAIMS OF EXEMPTION This matter is before the Court on an objection by trustee in bankruptcy, Thomas H. Grace, the duly-appointed trustee of this bankruptcy estate (“Trustee”) to certain claims of exemption asserted by debtors Michael and Linda Savage. The debtors opposed the Trustee’s objection and the matter was heard by the Court. The Court has jurisdictio...
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*280 OPINION AND ORDER ON OBJECTION TO CLAIM This matter is before the Court upon an objection to the claim of Barnett Sales, Inc. (“Barnett”). The objection, filed on behalf of Lawrence and Mary A. Ousley, was opposed by Barnett and was heard by the Court. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference in this district...
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ORDER ON OBJECTION TO CONFIRMATION This matter is before the Court on an objection to confirmation of the Chapter 13 plan proposed by debtors David and Esteli-ta Wood. The objection was filed by Frank M. Pees, the Chapter 13 Trustee (“Trustee”), and was heard by the Court on June 6, 1988. The Court has jurisdiction in this matter under 28 U.S.C. § 1334(b) and the General Order of Reference en...
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OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT Plaintiff Lois Ann Caughenbaugh seeks a determination from this Court that an obligation to her is not dischargeable in defendant Neil Allen Caughenbaugh’s Chapter 7 bankruptcy case. Neil Caughen-baugh answered the complaint and the matter was tried to the Court. The Court has jurisdiction in this adversary proceeding under ...
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STATEMENT OF THE CASE Roger T. Fontana, Defendant, filed his Chapter 7 bankruptcy case with the Court on April 2, 1987. This Chapter 7 case was routinely administered, and Defendant was granted a discharge of his debts by order dated August 7, 1987. This bankruptcy case was closed on September 15, 1987. On November 13, 1987, Georgetown Village Apartments, Plaintiff, moved to have Defendant...
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DECISION CONCERNING EXPIRATION OP THE AUTOMATIC STAY UNDER 11 U.S.C. SEC. 362(e) Capital City Corporation (“Movant”) filed a motion seeking to modify the automatic stay of 11 U.S.C. Section 362(a) in order to enforce its security interest in Debtor’s real property in the District of Columbia by way of foreclosure. A preliminary hearing was not held within 30 days of the filing of the moti...
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DECISION Mary Jean Reak, former wife of the debtor, has filed a motion to dismiss the debtor’s chapter 12 petition on the basis that the debtor is ineligible for chapter 12 relief. Mrs. Reak contends that the debtor is not a family farmer because he is unable to meet the 80% farm debt criteria set forth in 11 U.S.C. § 101(17)(A). 1 She maintains that there is a debt owing to her from the debt...
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DECISION This ancillary proceeding under § 304 of the Bankruptcy Code was initiated by a liquidating committee (“liquidators”) appointed in insolvency proceedings instituted and pending in Spain affecting the affairs of Papeleras Reunidas, S.A. (“Papeleras”), a Spanish corporation. The liquidators have invoked § 304 to prevent Republic Tobacco, Inc. (“Republic”), a major creditor of Papel...
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MEMORANDUM OF OPINION ON DIS-CHARGEABILITY OF A DEBT PURSUANT TO 11 U.S.C. § 523(a)(5)(B) Facts On January 10, 1986, Donna and James Alexander received an Agreed Decree of Divorce in Case No. 85-509,909 in the 140th District Court of Lubbock County, Texas. An Agreement Incident to Divorce (Agreement) was approved and incorporated into the Decree by reference. Section 1.06 of the Agreement I...
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MEMORANDUM OF OPINION AND ORDER This matter came on for trial upon the Complaint of Alside, Inc. (Alside) seeking a determination of dischargeability of its judgment claim against Myles R. Creed (Defendant-Debtor). Upon an examination of the pleadings, argument of counsel and the evidence adduced, the following constitutes the Court’s findings and conclusions as required under Rule 7052 of the Ban...
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MEMORANDUM OPINION ON HERTZ-BERG, JACOB & WEINGARTEN, P.C.’S SECOND APPLICATION FOR INTERIM COMPENSATION, ET AL. On September 2, 1988, Hertzberg, Jacob & Weingarten, P.C. filed its second application for allowance of interim compensation and reimbursement of expenses as attorney for the debtor in possession. On September 20, 1988, Citizens Commercial & Savings Bank filed an objection to t...
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MEMORANDUM OF OPINION AND ORDER Herein, Terra Erie Associates and River-view Plaza Associates (Plaintiffs) seek an order which would equitably subordinate the secured claims of the Defendants, Marine Bank (Marine) and of Whirlpool Acceptance Corporation (Whirlpool). To resolve the matter, the parties have filed cross-motions for summary judgment, in addition to submitting their stipulatio...
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By motion dated June 9, 1988, The Bank of New York (“BNY”) sought an order vacating the automatic stay with respect to foreclosure against the Debtor’s leasehold tenancy interest in the health care facilities known as The Sarah R. Neuman Nursing Home and The Sarah R. Neuman Pavilion located at 845 Palmer Avenue, Mamaro-neck, New York (collectively, the “Home”). The automatic stay has been continu...
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MEMORANDUM OPINION AND ORDER This matter came for trial on August 30-31, 1988, on the complaint of Teilhaber Manufacturing Corporation objecting to the discharge of the debtor/defendant, Herbert R. Hodge, pursuant to section 727(a)(2) and section 727(a)(4). The plaintiff, Teilhaber Manufacturing Corporation, appeared by and through counsel, Rebecca S. Yocum. The debtor/defendant appeared in per...
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ORDER On January 12, 1987, Kenneth L. Hud-speth 1 filed a voluntary petition for relief under the provisions of chapter 7 of the United States Bankruptcy Code, and Hon. William R. Gibson was appointed trustee. The debtor claimed the cash surrender value of certain insurance policies in the sum of $6,393 as property exempt from inclusion in the estate pursuant to 11 U.S.C. § 522...
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ORDER At Butte in said District this 2nd day of November, 1988. After due notice, a hearing was held September 14,1988, on the Debtors’ Motion to Delay Implementation of or Amend their Chapter 12 Plan and the Motions of the Trustee and the Montana Bank of Sidney to Dismiss this case. Subsequent to the hearing, the Debtors, the Farm Credit Bank (FCB) and the Montana Bank of Sidney (Bank), file...
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MEMORANDUM Asserting that the defendant-debtor willfully and maliciously drove his vehicle without automobile liability insurance, the plaintiffs, injured in an automobile accident with the defendant, seek to have their damage claim against the defendant declared nondischargeable under 11 U.S.C.A. § 523(a)(6) (West 1979). The defendant has moved to dismiss plaintiffs’ complaint for failur...
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MEMORANDUM OPINION A secured creditor, Horizon Federal Savings Bank, has moved to dismiss this Chapter 11 case "for cause” under 11 U.S.C. § 1112(b). Horizon alleges that the Debt- *835 or’s petition was filed in bad faith, solely to frustrate Horizon’s efforts to enforce its five mortgage notes, and is being maintained as a litigation tactic in a purely two-party dispute. Th...
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ORDER On August 22, 1985, Circle J Dairy, Inc., filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. On April 8,1988, Dairy Farm Leasing Company (Dairy Farm Leasing) filed an unsecured claim in the sum of $268,203.70. The debtor-in-possession, First National Bank of Fayetteville, Arkansas, and Agristor Leasing have filed objections to Da...
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90 B.R. 422 (1988) In re EDWIN M. LIPSCOMB FARMS, INC., Debtor. EDWIN M. LIPSCOMB FARMS, INC., Plaintiff, v. MICHIGAN MILLERS MUTUAL INSURANCE COMPANY, Defendant. Bankruptcy No. 88-02940-S-1-11, Adv. No. 88-0602-S-1-11. United States Bankruptcy Court, W.D. Missouri, S.D. September 13, 1988. *423 James R. Doran, Springfield, Mo., for debtor/plaintiff. Dennis R. Dow, Kansas City, Mo., for defendant...
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MEMORANDUM OPINION A judgment for dissolution of marriage was entered by the Circuit Court of Cook County in the marriage of Patricia and Joel Zimberoff. The divorce court judgment ordered the Debtor, Mr. Zimberoff, to provide child support payments to his former wife. The Debtor was not diligent in maintaining the child support payments. Mrs. Zimber-off then hired William R. Jacobs II, t...
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DECISION After years of posturing, this 1982 litigation was finally heard on April 18, 19, 28, and May 17, 1988, on the Trustee’s complaint to recover, as a preferential transfer and as a fraudulent conveyance, property of Max Sugarman Funeral Home, Inc., to ADB Investors 1 (hereinafter “ADB”), and for “other appropriate relief.” This additional relief, as it was jointly addres...
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ORDER In this Chapter 11 case, an Order of Confirmation of Debtors’ Chapter 11 Plan was entered on April 12, 1988, “upon condition that the claim of Jean L. King is allowed to include attorney fees of $14,-500.00 payable within 90 days of this Order”. The Debtors moved to amend the Order regarding King’s claim, and the Court on May 16, 1988, granted partial relief by reducing the fees to ...
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MEMORANDUM OPINION This matter is before the Court on (1) plaintiff’s motion for summary judgment against mechanics and materialmen, filed April 15, 1988, (2) Western Building Supply Co., Inc.’s motion for summary judgment against plaintiff, filed May 2, 1988, (3) Lumber, Inc.’s motion for summary judgment, a statement of facts and a memorandum in support of which was filed on May ...
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*183 ORDER This case is before the Court on Trustee’s objection to allowance of Debtors’ claim of exemption of Workers’ Compensation claim. Hearing was held December 18, 1987. Present were Wheeler Bryan, Trustee and attorney for Trustee; Earnie R. Breeding, attorney for Debtors; and Tom Brown, Mr. Cain’s Workers’ Compensation attorney. From the evidence adduced and argument of counsel at the ...
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MEMORANDUM OPINION Two matters have been consolidated for my resolution. Citicorp Homeowners Ser *627 vices, Inc. 1 (Citicorp) has moved for relief from the automatic stay pursuant to 11 U.S.C. § 362(d)(1) on the basis that the debtor’s home, at 107 North 2nd Street, Darby, Pa., has already been sold to Citi-corp by foreclosure sale. Title having passed, Citicorp c...
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ORDER DENYING DEBTORS’ MOTION TO DISMISS IN NO. 88-03896, EXCEPT AS TO MRS. LUENGO Joint administration (but not substantive consolidation) under B.R. 1015(b) was ordered for these two involuntary cases, (CP 5), and the appointment of an interim trustee for both cases was authorized October 7. (CP 7). The alleged debtors in No. 88-03896, a husband and wife, have moved (CP 13) for dis...
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ORDER DENYING TRUSTEE’S MOTION TO EMPLOY AUCTIONEER In each of these cases, the same trustee has requested authorization to employ the same auctioneer to sell each debtor’s assets. The two applications were heard on October 11. *548The assets in Maropa are marine equipment and in Coastal are silk flowers. In each instance, all of the assets are subject to the undisputed lien of an undersecured cre...
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Order Denying Rule 11 Sanctions Defendant’s motion (CP 20) under B.R. 9011(a), which makes Rule 11, Fed.R.Civ.P. applicable to pleadings and other papers filed in bankruptcy, seeks sanctions against the plaintiff chapter 7 trustee, the bankruptcy estates, and the trustee’s New York attorneys, a law firm with which he is associated, and the attorney of that firm who signed the complaint. ...
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MEMORANDUM DECISION Creditors Lewis and Lori Fine seek to have their claim declared nondischargeable under 11 U.S.C. § 523(a)(3) and (6). The debtors have answered and the matter was tried on September 6. I now conclude that plaintiffs are entitled to no relief, and the alleged claim is discharged. The allegations and relevant facts relate solely to plaintiffs’ claim against the debtor husband ar...
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MEMORANDUM OF DECISION Introduction Frederik and Kirsten Figge, the debtors in this chapter 7 case, owe Indian Springs State Bank (“ISSB”) $200,000.00 plus interest on account of two personal loans made to them by ISSB in 1982. The Federal Deposit Insurance Corporation (“FDIC”) is now the receiver for ISSB, which was declared insolvent in 1984. The FDIC filed a timely complaint t...
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ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND JUDGMENT The movant Boatmen’s Bank of Carthage filed this adversary action to compel the defendant John Emmett Powell to count as part of the within estate an amount of a distribution from a decedent’s estate which Boatmen’s alleges he became entitled to receive within 180 days of the date of bankruptcy within the meaning of section 541(a)(5) o...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DENYING PLAINTIFF’S COMPLAINT FOR A DECREE OF NONDIS-CHARGEABILITY This is an action brought by the plaintiff, seeking to obtain this court’s decree of nondischargeability of the defendant’s indebtedness to it. The plaintiff alleges that the indebtedness was created by false statements or false pretenses within the meaning of section 523(a)(...
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MEMORANDUM OF OPINION AND ORDER This matter before the Court is a motion of Richard Schreiber (Schreiber) for payment of administrative expenses. Following a hearing with due notice having been provided to all entitled parties, the following constitutes the Court’s findings and conclusions: I. This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(A), with jurisdiction ...
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The plaintiff requests that debtors be denied their discharges in bankruptcy and that the indebtedness owed to it by debtors be declared to be nondischargeable in bankruptcy. 1 Plaintiff alleges that the debtors removed, concealed or mutilated property in violation of section 727(a)(2) of the Bankruptcy Code; that they failed to explain satisfactorily a deficiency of assets to meet t...
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MEMORANDUM ON MOTION TO DISMISS The debtor filed its voluntary petition under Chapter 11 of title 11 of the United States Code on April 7, 1988. On July 7, 1988, four creditors, Ruby Maples, Clydia Maples, Theo Maples, and Loda Graves (Movants), filed a motion seeking dismissal of the debtor’s Chapter 11 case. By their motion, Movants contend that the debtor, a trust, is ineligible for re...
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ORDER DENYING DEFENDANTS’ MOTION TO DISMISS This matter comes before the court on this 17th day of October, 1988 on the de *935 fendants’ motion to dismiss the trustee’s complaint objecting to the defendants’ claims against the debtor estates. The defendants’ motion asserts that the defendants received a default judgment against the debtors in a sum certain and, as such, the ...
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MEMORANDUM OPINION and ORDER This matter comes on for decision by this court on the joint motion of debtor Craig L. *931 Treiber and defendant Barbara C. Treiber for summary judgment. The court finds that the instant action is a core proceeding pursuant to 28 U.S.C. § 157(b)(2) and that jurisdiction and venue are proper pursuant to 28 U.S.C. §§ 1334 and 1409 respectively. The court makes ...
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MEMORANDUM ORDER DENYING PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT OR DEFAULT JUDGMENT, AND GRANTING SUMMARY JUDGMENT TO DEFENDANTS. These adversary proceedings came on before the Court at Mankato, Minnesota, on June 21, 1988, for hearing on Plaintiff’s motions for summary judgment in ADV 3-88-60, 3-88-62, and 3-88-63, and for default judgment in ADY 3-88-61. Plaintiff appeared by her atto...
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MEMORANDUM OPINION This adversary proceeding was commenced by the complaint of the Chapter 13 Debtor, William Earl Maddox, (“Maddox”). The complaint seeks to determine the validity of an alleged security interest of the defendant Federal Deposit Insurance Corporation (“FDIC”). It is based upon the lack of a document specifically denominated “Security Agreement” or any single document whic...
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MEMORANDUM OF DECISION INTRODUCTION The Trustee in this adversary proceeding seeks to avoid and recover for the benefit of the debtor’s estate certain preferential transfers made by the debtor to the defendant, Adkin Plumbing & Heating Supply Co., Inc. (Defendant). The debtor filed a voluntary Chapter 7 petition on August 25,1987. It is undisputed that the debtor made two paymen...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint objecting to defendants’ discharge pursuant to 11 U.S.C. § 727(a)(3) and (4). The complaint alleges that the defendants purposely failed to preserve books, records, documents and other papers from which their financial condition could be ascertained, and secondly, that the defendants t...
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MEMORANDUM OPINION REGARDING DEBTOR’S AMENDED OBJECTION TO CLAIM NUMBER 13 This, case is before the Court upon the Debtor’s Amended Objection to Claim Number 13 of Mutual Benefit Life Insurance Company (“Mutual Benefit”). The primary issue for the Court’s adjudication is whether interest on the promissory note should be assessed at the default or the contract rate for the period between default...
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ORDER APPROVING RESPONDENTS’ ATTORNEYS’ FEE IN THE SUM OF $2992.00 and REIMBURSEMENT OF EXPENSES OF $33.01 AND DIRECTING RETURN OF DIFFERENCE BETWEEN THOSE FIGURES AND $5500 TO THE TRUSTEE IN BANKRUPTCY WITHIN 20 DAYS This is a matter in which the trustee in bankruptcy seeks, pursuant to Bankruptcy Rule 2017, to compel the respondents to restore all or part of a $5,000 attorney’s fee to t...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL DECREE AND JUDGMENT DECLARING DEBTOR TO HAVE A % INTEREST WHICH PASSED TO THE TRUSTEE IN THE SUBJECT PROPERTY AND DENYING TRUSTEE’S REQUEST FOR SALE OF INTEREST OF CO-OWNER Plaintiff trustee in bankruptcy sues to recover property which he contends is property of the estate, to-wit, an undivided V» interest in excess of the homestead exemption in...
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Formerly, on April 18, 1988, this court issued its order directing the debtors and creditors to show cause in writing why the within bankruptcy estate should not be distributed according to the following principles: “(T)he following ... would be classified as postconversion administrative claims under the provisions of section 726(b) of the Bankruptcy Code which would have a superpriority ...
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ORDER (1) CONFIRMING PLAN OF REORGANIZATION AND (2) FIXING BAR DATE FOR FILING OF ADMINISTRATIVE EXPENSE CLAIMS, CLAIMS ARISING FROM . THE REJECTION OF EXECUTORY CONTRACTS, DISSOLUTION CLAIMS, DEFICIENCY CLAIMS AND APPLICATIONS FOR ALLOWANCES OF COMPENSATION AND/OR REIMBURSEMENT OF EXPENSES Bankruptcy Judge. The Debtors, certain Banks, * Old Penrod and New P...
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MEMORANDUM OPINION On the eve of bankruptcy, the debtor, Robert Craig, granted a mortgage to the defendant, the Minden Exchange Bank & Trust Company (the “Bank”). In partial consideration for the mortgage, the Bank loaned funds to the debtor, which were immediately used by the debtor to make a payment to the Bank on an obligation of a third party to the Bank which the debtor had guaranteed. The O...
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MEMORANDUM OPINION RESPECTING CONFIRMATION OF SECOND AMENDED CHAPTER 12 PLAN ISSUE The principal issue before the court is whether the Debtors are legally permitted to make direct payments to certain creditors who hold allowed secured claims pursuant to the Debtors’ proposed Second Amended Plan of Reorganization Under Chapter 12 of the Bankruptcy Code. 1 As a corollary, th...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the application of the U.S. Trustee for appointment of Trustee or Examiner. 1 Following a hearing with notice thereof to all entitled parties and a review of the pleadings and other relevant portions of the record, the following constitutes the Court’s findings, pursuant to the requirements of Rule 7052, Bankr. Rules. This...
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MEMORANDUM OPINION The debtor-in-possession in this chapter 11 case seeks by motion to set aside a foreclosure sale of his residence located at 1816 Upshur Street, N.W., Washington, D.C. Since the debtor’s motion requests the Court to invoke its equity powers pursuant to 11 U.S.C. § 105(a), an adversary proceeding is required by Bankruptcy Rule 7001. Therefore, this matter will be conside...
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SUPPLEMENTAL MEMORANDUM OPINION I. This matter is before the Court following trial on an adversary proceeding complaint filed by Comerica Bank against the debtor, George Nahas, pursuant to 11 U.S.C. § 523(a)(2)(A). 1 Comerica had established a relationship with Nahas over many years, based upon his previous business ventures and his reputation in the Birmingham, Michigan...
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MEMORANDUM OF OPINION This matter is before the court on a complaint by the chapter 7 debtor seeking to recover a set-off and damages for contempt against the United States Veteran’s Administration (“the V.A.”) for violating the provisions of 11 U.S.C. § 362(a)[7] and § 524(a)(2). The issue is a core matter pursuant to 28 U.S.C. § 157. Plaintiff filed a motion for judgment on the pleadings an...
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MEMORANDUM AND ORDER This matter is before the Court on two Petitions for Allowance of Administrative Expenses filed by the State Bank of Jersey-ville (hereafter SBJ or movant). It is undisputed that SBJ is an undersecured creditor holding a mortgage on the debtors’ farmland. Movant’s petitions seek a reasonable rent for the use of its collateral for the calendar years 1987 and 1988, respective...
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MEMORANDUM OPINION AND ORDER This matter came for hearing on July 15, 1988, on the debtor’s application to avoid the lien of Robert A. Alvarado. The debt- or, Dorothy Lee Alvarado, appeared in person and through counsel, Laurence M. Jarvis. The creditor, Robert A. Alvarado, appeared in person and through counsel, Mark Moedritzer. FINDINGS OF FACT Based upon the testimony, the exhibits, the ...
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MEMORANDUM OF OPINION ON DEBTORS’ CLAIM OF VEHICLES AS EXEMPT TOOLS OF THE TRADE On February 1, 1988 Richard Laverne Weiss and Phyllis Carole Weiss (Debtors) filed for relief under Chapter 7 of the Bankruptcy Code. Mr. Weiss listed his occupation as self-employed custom harvester. Mrs. Weiss listed her employment as student. He continues to work in the custom harvesting business. In their...
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AMENDED OPINION AND ORDER ON MOTION FOR SANCTIONS I. Preliminary Statement This matter is before the Court upon the Motion for Sanctions (“Motion”) filed by Kelli S. Holman, the debtor in this Chapter *766 7 case. Debtor’s Motion seeks an order of this Court citing Cash Cars in contempt for allegedly violating the automatic stay imposed by 11 U.S.C. § 362(a). Deb...
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ORDER REGARDING MOTION TO COMPEL ASSUMPTION OR REJECTION OF EXECUTORY CONTRACTS This matter comes before me on the motion of T.G. Motors, Inc., of Houston (T.G. *528 Motors) to compel the debtor, C.M. Turtur Investments, Inc., d/b/a Chris Turtur Nissan (debtor or Turtur) to assume or reject executory contracts to buy and sell six automobiles. Bellfort National Bank (Bell-fort...
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MEMORANDUM DECISION At issue is (1) whether Chapter 7 debtors may use 11 U.S.C. § 506(a) to value secured claims against their real property and (2) whether they may use 11 U.S.C. § 506(d) to void liens against their real property to the extent that the liens are undersecured. The debtors argue that a Chapter 7 debt- or has standing to use § 506(a) to determine the status of allowed ...
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OPINION Robert and Maria Tenorio, husband and wife, creditors and plaintiffs below, are appellants herein. They appeal from an order of the bankruptcy judge dismissing their Complaint to Determine Discharge-ability of Debt for want of prosecution and an order denying their motion for reconsideration of this matter. David and Beverly *894 Osinga, debtors and defendants below, ...
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OPINION FACTS A. In 1983, Ryan Marine Corporation and debtor Foam Systems Company entered into a contract whereby Foam Systems was to supply polyurethane foam insulating material for use in the construction of ships for the U.S. Navy. The material was to be delivered over a five-year period from 1983 to 1988. In accordance with the contract, Ryan Marine paid Foam Systems $255,00...
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91 B.R. 897 (1988) In re Warne EHRING, Debtor. Warne EHRING, Appellant, v. WESTERN COMMUNITY MONEYCENTER, a corporation, and Franklin Tom, Commissioner of Corporations, State of California, as Liquidator of Western Community Moneycenter, Appellees. BAP No. CC-86-1170-MeMoJ. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 22, 1987. Decided September 22, 198...
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MEMORANDUM OPINION This is an adversary proceeding which originated by virtue of the Trustee’s lodging objections to a claim which had been filed in this proceeding on behalf of James O. Bakker and Tammy Faye Bakker and a claim which had been filed on behalf of David A. Taggart. When the Trustee coupled his objection to the claims with a counterclaim filed on behalf of the estate, the act...
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MEMORANDUM DECISION On April 16,1985, Joseph M. Weis filed a chapter 11 petition. Mr. Weis operated his business as debtor in possession (“D.I.P.”) from that date until April 12, 1988, when he voluntarily converted the case to chapter 7. Thereafter, Michael Kepler served as trustee. Prior to conversion, the D.I.P. sought to recover certain preferential transfers. On February 26, 1986, the...
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*810 MEMORANDUM DECISION AND ORDER This case raises issues involving the proper use of a chapter 13 plan after a completed chapter 7 liquidation. First Federal Savings and Loan Association of Madison (the “Bank”), the mortgagee of the debtors’ homestead, has objected to the confirmation of the debtors’ chapter 13 plan and has moved for the dismissal of the case. The Bank complain...
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OPINION AND ORDER This matter is before the court on a complaint seeking to enjoin State Court actions against the plaintiffs. For the reasons provided herein, we deny the plaintiff’s request for a preliminary and permanent injunction enjoining the defendants, their attorneys, agents, employees, and successors from proceeding with or continuing in any manner the State Court actions filed ...
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ORDER DENYING APPLICATION BY SPECIAL COUNSEL FOR COMPENSATION AND REIMBURSEMENT OF EXPENSES AND REVOKING APPOINTMENT AS SPECIAL COUNSEL The law firm appointed to defend debtor in a lawsuit (“Special Counsel”) has applied for interim fees and expenses totaling $55,-287.38. Objections were filed by the largest creditor and by the creditors’ committee. A hearing was held on July 14, 1988. ...
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MEMORANDUM AND ORDER This matter is before the Court on a Second Amended Complaint to Collect Rev *792 enues filed by debtor L.P. Maun, M.D., Ltd., formerly known as Maun-Salya-pongse, Ltd. (“debtor”), against Dr. Amorn Salyapongse (“Salyapongse”). Debtor alleges that Salyapongse retained and converted proceeds of debtor’s accounts receivable. At the time of the hearing on th...
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ORDER DENYING APPLICATION TO EMPLOY COUNSEL The debtors have submitted an application to employ counsel but have not submitted a declaration signed by counsel. The application does not meet the requirements of Bankruptcy Rule 2014(a) to authorize employment of counsel. Bankruptcy Rule 2014(a) was amended in 1987 to add the following sentence relating to all applications for an order ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Spanish Lake Associates, a Michigan partnership (hereinafter the “Debtor”) filed a Chapter 11 petition on January 15, 1988. On July 21, 1988, the Debtor filed a Disclosure Statement and a proposed Plan of Reorganization. On September 29, 1988, by leave of Court, the Debtor filed its First Amended Disclosure Statement (hereinafter the “Disclos...
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ORDER GRANTING MOTION The above-entitled motion having been submitted for decision, and after consideration thereof, it is ORDERED that the aforesaid motion be and the same is hereby granted. Fed.R.Civ.P. 25(a)(1), which applies to adversary proceedings in bankruptcy by Bankr.R. 7025, provides, [i]f a party dies and the claim is not thereby extinguished, the court may order...
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DECISION AND ORDER SUSTAINING MOTION OF MARILYN A. JAMISON TO AVOID CERTIFICATE OF JUDGMENT OF ST. ELIZABETH MEDICAL CENTER Before the court is a motion of debtor Marilyn A. Jamison to avoid, under 11 *596 U.S.C. § 522(f)(1), a certificate of judgment filed by respondent St. Elizabeth Medical Center in Greene County, Ohio. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standi...
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OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT This matter is before the court upon plaintiff/trustee’s motion for summary judgment of his complaint to sell property pursuant to 11 U.S.C. § 363 and defendant’s memorandum in opposition thereto. Upon consideration thereof, the court finds *751 that plaintiffs motion should be denied and his compl...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court for final hearing on Trustee’s Report of Sale and Motion to Confirm Sale and the Response and Objection to Report of Sale and Motion to Confirm Sale filed by Jane Black Roehl (“Roehl”). Roehl objects to the acceptance or approval of the bid of ABQ Development Company to purchase certain real property described hereafter as ...
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MEMORANDUM OPINION This matter comes before this Court on the Motion of Pauline Walker (“Creditor”) to dismiss the Chapter 7 petition of Betty Young a/k/a Betty Gordon (“Debtor”). Creditor obtained a prepetition judgment against the Debtor for unpaid rent in the amount of $2,287.07. Creditor bases her Motion on the following circumstances: (1) The Debtor listed three unsecured d...
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MEMORANDUM OF DECISION The question presented by this case is whether a creditor’s nondischargeable claim against the debtor is reinstated when the debtor’s pre-petition payment of that claim is recovered as a preference by the debtor’s chapter 7 trustee. For the reasons stated below, the court concludes that the claim is reinstated and grants plaintiff’s motion for summary judgment. SUMMARY ...
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ORDER This Chapter 7 case was commenced on May 20, 1985, and the adversary proceeding was filed on May 15,1987 by the Trustee to recover allegedly preferential payments made by Debtor to Defendant. Defendant contends the payments fall within the “ordinary course of business” exception of 11 U.S.C. § 547(c)(2). The parties have filed cross motions for summary judgment. This is a core proce...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the amended complaint of Rafael Mencia Lister and Tomasina de Mencia Lister (the “creditors”) against Ramon E. Gonzalez and Victoria M. Gonzalez (the “debtors”) seeking to bar the discharge of the debtors’ debt to them, pursuant to 11 U.S.C. § 523(a)(2)(A), and generally objecting to the debtors’ discharge, pur...
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MEMORANDUM OPINION AND ORDER This matter comes before this Court on the Motion for Summary Judgment of Plaintiff, Virtual Network Services Corporation (“VNS”) in its action against Thomas Derpack (“Derpack”) to recover a preferential payment. The facts are not in dispute. Derpack was employed by VNS from May 3, 1985 to March 7, 1986. The written terms of employment included a specified annual sala...
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MEMORANDUM AND DECISION ON RELIEF FROM AUTOMATIC STAY UNDER CODE § 362(d)(1); § 365(c)(3) Samuel J. Heyman and Heyman Associates # 1 1 move for relief from the automatic stay provided by Bankruptcy Code § 362(a) to evict the debtor, M & R Appar *566 el, Inc., from retail space leased to M & R. M & R defends on the basis of its proposal to adequately protect Heyman ...
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MEMORANDUM OPINION INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the court on the Motion of Plaintiff, Nellie Hunt (“Plaintiff”) for Summary Judgment against Defendant-Debtor, Oscar Cobb (“Defendant”). Plaintiff’s action is one to have Defendant’s debt to her declared nondis-chargeable under Bankruptcy Code Section 523(a)(5). This memorandum opinion incorporates Fi...
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MEMORANDUM OPINION INCORPORATING FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before this Court on cross-motions for Summary Judgment brought by Plaintiff, Jay A. Steinberg, (“Trustee”). As Chapter 7 Trustee for the debtor, Richard J. Carmel (“Carmel”), and Defendant, James K. George, (“George”). This Memorandum Opinion shall incorporate Findings of Fact and Conclusions of Law pursua...
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MEMORANDUM OPINION INTRODUCTION A COMPLAINT FOR SANCTIONS AND FOR DETERMINATION OF CLAIM OF FRANCHISE TAX BOARD AGAINST DEBTOR, was filed in the above entitled court on July 19, 1988. The complaint and summons were served by mail on the Franchise Tax Board, Legal Director, the State of California and the Attorney General. On August 19, 1988, the Franchise Tax Board for the State of California fil...
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ORDER APPROVING AMENDED SETTLEMENT OF AD VALOREM TAX CLAIMS THIS CAUSE came before the Court for hearing in Miami on October 31, 1988 pursuant to an Order Setting Hearing on Trustee’s Motion For Approval Of Amended Stipulation Settling Ad Valorem Tax Claims, dated October 11, 1988. The Court has heard the testimony presented, examined the exhibits received into evidence, observed the candor and...
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MEMORANDUM OPINION This matter is before the court upon cross-motions for summary judgment filed by the plaintiff, Northwest Acceptance Corporation (hereinafter, Northwest) and the defendant, Paul Lansdowne, the trustee. The proceeding was commenced when Northwest filed a complaint requesting the court to issue a declaratory judgment finding that funds that constitute the overfund-ed portion of...
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ORDER DENYING MOTION TO RECONSIDER On September 28, 1988, Tandy Computer Leasing (“Tandy”), a creditor in this bankruptcy case, filed its “Motion to Reconsider,” requesting that this court reconsider its order granting discharge to debtor. In support of its motion, Tandy asserts that since it had timely filed a complaint under 11 U.S.C. § 523 prior to the granting of the discharge, it was “inap...
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AMENDED MEMORANDUM, OPINION & ORDER This matter comes before the court on a series of motions filed by the plaintiff in this adversary proceeding. The first motion seeks to have this Court reconsider and vacate its earlier order granting the debtor defendant’s motion under Bankruptcy Rule 9024 and Federal Rule of Civil Procedure 60(b) vacating a default judgment the court had entered agai...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Household Finance Corporation (the “creditor”) against Patti Mais Herke (the “debtor”) to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(B) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, c...
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ORDER DISMISSING COMPLAINT WITH PREJUDICE This cause having been heard upon the Motion to Dismiss Complaint with Prejudice filed by the defendant, Stockton, Whatley, Davin & Company, now known as BancBoston Mortgage Corporation, a Florida corporation (“BBMC”) and the Court having heard arguments of Ruben L.R. El-Amin, the plaintiff herein appearing before this Court pro se, and arguments of couns...
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ORDER On July 1, 1987, Peoples Trust Bank, now known as Summit Bank (“Summit Bank”), the defendant-counterclaimant in this adversary proceeding, filed its Motion to Reconsider, Alter or Amend Judgment. On July 2, 1987, the plaintiff and counter-defendant Stoller’s, Inc. 1 along with counter-defendants Ronald W. Stoller and Joanne R. Stoller filed their Motion to Alter or Amend ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the Complaint filed by Charter *287 Crude Oil Company (“CCOC”) against Pe-tróleos Mexicanos (“Pemex”) seeking the turnover of a $34,352.96 demurrage debt and upon the objection to the $1,639,432.96 proof of claim filed by Pemex against CCOC and Charter International Sales Corporation. B...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon cross-motions for summary judgment filed by the plaintiff, Charter International Oil Company’s (“CIOC”), and the defendants, Rosa Irene Sanders Ziegler, Charles Lewis Sanders, Jr., Theresa Michelle Sanders and Tanya Dena Sanders Watson (the “Ziegler Claimants”). Both motions raise the issue of the discharge-ability of w...
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MEMORANDUM OPINION STATEMENT OF THE CASE On October 19, 1988, a trial was held on the above captioned Adversary Proceeding on Plaintiff’s complaint to determine dis-chargeability of debt to Jocyria S. Long relying on section 523(a)(3), (5) of the Bankruptcy Code. 1 At the conclusion of the trial, Defendant requested additional time to submit a brief regarding the issues of third party payme...
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This appeal arises out of the bankruptcy court’s order dismissing the appellant’s amended nondischargeability complaint for failure to state a claim and in imposing sanctions against the appellant’s attorney for $500. FACTS Appellees, both individually and as corporate entities, filed Chapter 7 petitions on March 17, 1987, listing Mission Viejo National Bank (appellant) as a creditor....
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OPINION By this appeal the debtor seeks to set aside the bankruptcy court’s order denying the debtor’s objection to the appellee’s claim. FACTS Northern California Homes and Gardens, Inc., (debtor), filed for relief under Chapter 11 of the Bankruptcy Code on October 2, 1985. On November 7, 1985, Dr. Schreider, *412 as trustee of the Schreider Family Trust, (appellee...
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OPINION Rosenberg Real Estate Equity Fund II (Rosenberg), debtor’s landlord, appeals certain findings and conclusions in an order authorizing the sale of debtor’s equipment other than in the ordinary course of business and disbursement of the proceeds to the Internal Revenue Service. Rosenberg also appeals a ruling that a patent sold by the president of Air Beds, Inc., the debtor corporat...
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ORDER DENYING MOTION TO CONVERT CHAPTER 7 PROCEEDING TO CHAPTER 13 PROCEEDING This matter is before the Court on the motion of the debtor, pursuant to 11 U.S.C. *740 § 706(a), to convert his chapter 7 case to a case under chapter 13. The Court understands that the debtor, under this section, has a one-time absolute right of conversion of a liquidation ease to a reorganiz...
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MEMORANDUM DECISION AND ORDER This matter was tried before the Court on August 12, 1988, pursuant to Plaintiff’s Complaint Objecting to Discharge. After a careful review of the evidence presented at trial and the relevant law pertaining to that evidence, the Court now renders the following memorandum decision and order. On August 19,1986, John Richard Calder (Calder) filed a voluntar...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court is called upon to decide whether or not the payment of an educational loan by James E. Cahill (“Debtor”) would constitute an undue hardship so as to allow him to discharge the debt, pursuant to § 523(a)(8)(B) of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp. 1988) (“Code”). FACTS On Fe...
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MEMORANDUM OPINION The Debtor, Enrique M. Lopez, M.D.S.C., an Illinois Professional Corporation, doing business as Northwestern Medical Center, filed a voluntary petition for reorganization under Chapter 11 of the United States Bankruptcy Code on February 19, 1988. Dr. Giulio Bruni has moved to set a time for assumption or rejection of executory contracts, including an Asset Purchase Agre...
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MEMORANDUM OPINION This matter is before the Court on the Defendant’s Motion to Dismiss. A hearing *264 was held on this motion on May 10, 1988, and the matter was taken under advisement. After a careful review of the law relating to this motion, the Court makes the following determination: BACKGROUND On September 17, 1987, Harriet E. Styler, Trustee (“Trustee”) of ...
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DECISION ON ORDER DETERMINING DEBTORS’ EXEMPTIONS PURSUANT TO OHIO REVISED CODE § 2329.66(A)(12)(c) This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administration of the estate, and...
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MEMORANDUM Procedural Background This matter is before the Court on the complaint of Farmers State Bank of Superi- or, Nebraska, (Bank) that the defendants— Raymond and Barbara Norris (debtors), United States of America, State of Nebraska and State of Kansas — converted the Bank’s cash collateral by debtors’ post-petition transfers of these funds to the various other defendants. Three adversary...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter comes before the Court on the motion of HRR Properties Company (“HRR”), pursuant to § 362(d) of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1987) (“Code”), to lift the automatic stay on the non-residential real property it owns and leases to Ernest N. Damianopoulos, d/b/a Corinthia...
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MEMORANDUM OF DECISION RE GRUBB & ELLIS APPLICATION FOR RETROACTIVE APPROVAL OF EMPLOYMENT GRUBB & ELLIS COMPANY, a real estate brokerage company, (hereinafter “the Broker”) has asked me to approve its employment by the Debtor in Possession (hereinafter “Debtor”), and asks that said approval be made retroactive to May 13, 1987 i.e., the date it first dealt with the debtor with regard to t...
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MEMORANDUM OF OPINION This matter is before the Court on the motion of Cleveland Metro General Hospital School of Nursing (the “Hospital”) to be included as a creditor in the Chapter 13 plan of Jarvis S. Joiner (the “Debtor”), and the Debtor’s objections to the Hospital’s motion and to the Hospital’s claim. The Debtor’s petition was filed on July 9, 1987. On August 21, 1987, well within the bar...
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MEMORANDUM AND ORDER ON CREDITOR’S MOTION TO FILE AN ADVERSARY ON BEHALF OF DEBTOR TO AVOID LIEN On September 12, 1988 the court conducted a hearing on the debtor’s third amended disclosure statement. At the hearing, Barry M. Barash, counsel for creditor Bernadine Feldhahn, moved the court to allow Ms. Feldhahn to bring a preference action against Walcott Trust and Savings Bank (Bank). Am...
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MEMORANDUM OPINION RE: CONFIRMATION OF CHAPTER 12 PLAN On April 11,1988, Larry Adam and Mary Lou Adam, his wife, filed a joint petition for relief under Chapter 12 of the Bankruptcy Code for their hog and crop farming operation. The debtors are eligible for Chapter 12 relief. They filed their first plan of reorganization on July 11, 1988 which was subsequently and repeatedly modified. Fir...
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ORDER CONCERNING APPLICATION FOR APPROVAL OF ATTORNEYS’ FEES After review of the application for attorneys’ fees filed by Grambling & Mounce, *707 the Court has determined to disallow twenty of the hours claimed by Mr. Wiley James and twelve hours of the time claimed by Mr. Harrel Davis, disallowing the sum of $4,000.00, thus reducing the amount of allowable compensation to $...
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ORDER On May 5, 1988 a hearing on a motion for relief from stay and confirmation of the debtors’ amended and substituted Chapter 12 plan came on for hearing in Des Moines, Iowa. Dallas J. Janssen appeared on behalf of the debtors. Michael P. Mallaney appeared on behalf of Brenton National Bank (Brenton). Terry L. Gibson appeared on behalf of the United States Trustee. Brenton interposed a...
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STATEMENT OF THE CASE Larry Gene Darsey, Defendant, filed a voluntary petition seeking relief under Chapter 7 of the Bankruptcy Code on January 21, 1986. On November 20, 1987, Shirley M. Shepherd and Linda L. Quillian, Plaintiffs, filed a complaint seeking to have a debt in the amount of $725,000 determined to be nondischargeable under section 523(a)(6) of the Bankruptcy Code. 1 ...
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FINDINGS OF FACT AND DISCUSSION OF LAW REGARDING MOTION TO APPOINT EXAMINER AND APPLICATION FOR RETENTION OF TOUCHE ROSS & CO. This matter came before this Court on October 11, 1988 for a hearing upon the Motion to Appoint an Examiner filed by the United States Trustee on September 23, 1988, and the Application for Retention of Touche Ross & Co. as Consultants and Accountants for the Trad...
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DECISION ON ORDER TO SHOW CAUSE BY CHAPTER 11 TRUSTEE TO STAY ROME SAVINGS BANK FROM PROCEEDING WITH FORECLOSURE SALE PENDING APPEAL This motion by the newly-appointed Chapter 11 Trustee, R. Steven Aceti (“Trustee”), brought on by order to show cause entered by Judge Schwartzberg, on November 10, 1988, seeks to stay Rome Savings Bank (“Rome”) from proceeding with its mortgage foreclosure ...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO CLAIM OF FARMERS STATE BANK On June 10, 1988, Farmers State Bank (Farmers) filed a secured claim in the amount of $89,006.89. Farmers asserts a mortgage on real estate in Johnson County, Tennessee, owned jointly by the debtor and his wife, together with a lien on the following vehicles owned by the debtor: a 1982 Freightliner tractor; a 1975 Internatio...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER These matters come before the Court on the motion of Gene A. Rebeor (“Debtor”), pursuant to Bankruptcy Rule (“Bankr.R.”) 9024, to vacate the Order of Relief entered against him July 6, 1988 on an involuntary petition under Chapter 7 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1988) (“Code”) and, for ...
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ORDER ON MOTION TO SHOW CAUSE Because this Chapter XI case has been pending for twelve years, the court issued an order to show cause as to why the case should not be converted or dismissed. In response, the debtor cited the court to In re Gary Aircraft Cory., 698 F.2d 775 (1983), cert. denied, 464 U.S. 820, 104 S.Ct. 82, 78 L.Ed.2d 92 (1983), in which the Fifth Circuit ordered this bankruptcy cou...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On March 16, 1988, Laurence D. Boyer (“Boyer”), a joint debtor in a Chapter 7 case he had filed on May 5, 1981 with Rosemary Jean Boyer d/b/a Rosemary’s Beauty Shop, commenced this adversary proceeding pro se. On the cover sheet, Official Form No. B104, filed with the Clerk of the Bankruptcy Court, he characterized the ad...
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ORDER On March 23, 1988 the following matters came on for hearing in Des Moines, Iowa: (1) confirmation of plan; (2) motion to mod *649 ify stay filed by Okey-Yernon First National Bank (Bank); and (3) motion to dismiss filed by the Bank. Mark S. Lorence appeared on behalf of the debtor. Steven H. Krohn appeared on behalf of the Bank. David L. Davitt appeared on behalf of the Federal Land Ban...
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MEMORANDUM OPINION This Court has jurisdiction over this matter as a core proceding pursuant to 28 U.S.C. § 1334 and 28 U.S.C. § 157. This case comes before the Court on the Trustee’s Objection to Debtor’s Claim of Exempt Property. The sole issue that this Court will consider is whether insurance renewal commissions are current wages and thus exempt personal property or whether these commissions ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Four pre-confirmation matters arose within the Title 11 case of Copy Crafters Quickprint, Inc. (“Debtor”): 1) the approval of the Debtor’s first amended Disclosure Statement in the face of an objection lodged by the United States Trustee (“UST”), pursuant to § 1125 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 197...
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MEMORANDUM OPINION On the 10th day of May, 1988, the Court called for hearing the United States of America’s Motion to Modify Stay Authorizing Setoff. The Court has considered the evidence, arguments of counsel, and post-hearing briefs. The Court enters this opinion as its findings of fact and conclusions of law. The Debtors are farmers who had filed a petition’ under Chapter 12 on A...
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*14 MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Ralph E. and Donna R. Nohle (“Debtors”) have moved to disallow the claim of the Commodity Credit Corporation (“CCC”) because of its untimely filing. In the alternative, they ask that the claim be reduced to $86,244.36, the amount of the 1984 judgment the claim represents, and paid subsequent to the payment of...
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I. FACTS 1 On November 22,1982, Efraim Abramoff borrowed the sum of $2,970,000.00 as the permanent financing of an office building known at the time as Horizon Point Office Building. The loan called for an annual interest rate of 14 percent and a term of 30 years. The lender was Life Insurance Company of Georgia, which arranged the loan through its servicing agent, Mortgage an...
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FINDING AS TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND UNITED STATES’ CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT This matter comes before the court upon Plaintiff’s Motion for Partial Summary Judgment filed August 26, 1988 pursuant to the court’s Order of July 14, 1988 granting time to file pleadings pursuant to summary judgment. On September 12, 1988 Defendant United States filed its...
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ORDER ON OBJECTION TO CLAIM THIS IS a Chapter 11 case and the matter under consideration is the second phase of an ongoing controversy between Robert 0. Fischl (Fischl) and Corkscrew Golf Property Land Trust (Trust). The controversy centers around a claim of Fischl who seeks an allowance of a claim in the amount of $225,000.00 based on a claim for compensation for his services allegedly rendered ...
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ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT, MOTION FOR SUMMARY JUDGMENT, CROSS MOTION FOR SUMMARY JUDGMENT On January 14, 1987 Paul and Patricia Hollinrake filed an adversary complaint for turnover of property, to determine validity of liens, to determine allowed claims and to void liens. The Hollinrakes invoke 11 U.S. C. sections 506, 543, 544, 551 and 552. The Federal Deposit Insuranc...
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OPINION The debtor, Jay W. Mattis (“debtor”), has filed a motion to avoid the statutory lien of the IRS under 11 U.S.C. § 545(2), to which the United States has filed a motion to dismiss. The parties stipulate that the IRS properly filed a notice of tax lien pursuant to 26 U.S.C. § 6323(a) and (f) prior to the filing of debtor’s chapter 13 petition and that debtor owns no real property or autom...
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ORDER ON MOTION FOR SANCTIONS THIS IS a Chapter 7 liquidation case and the matter under consideration is a Motion which seeks imposition of sanctions against Brett C. Muscatell, Debtor, as well as against the Debtor’s counsel, Mr. Richard S. Agster (Agster). The Motion is filed in an adversary proceeding commenced by Barnett Bank of Tampa (Bank), who seeks a determination that the Debtor is not...
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MEMORANDUM OPINION The plaintiff here is the Committee of Unsecured Creditors (“Committee”) which has sought and obtained the approval of this court to proceed with the within action. Defendants are the owners of the business premises from which the debtor corporation conducted its business since 1970. The Committee seeks to have that business premises adjudicated to be an asset of the corporation...
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*953 ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY AND TO EXCUSE TURNOVER THIS IS a Chapter 11 case filed on September 16, 1988 by American Family Marketing Corporation (Debtor). On September 19, 1988, Thomas K. and Antoinette S. Knapp (Knapps) filed a Motion and sought relief from the automatic stay and an Order excusing them from the turnover provisions of § 542 of the Bankrup...
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ORDER ON MOTION TO AVOID LIEN THIS IS a Chapter 7 case and the matter under consideration is a Motion filed by Edward Gordon and Debra Gladstone Hutchinson (Debtors), who seek to avoid a lien of Betsy Stone (Stone), a creditor of these Debtors. The Court heard the arguments of counsel for the Debtors and for Stone at the duly scheduled hearing. In opposition to the Motion to Avoid Lien, it is...
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Attorneys for the debtor, Garvin Stryker of the Law Offices of Garvin Stryker for the City of San Antonio, Mr. David Gragg, Jeffers, Brook, Kreager and Gragg, for the National Bank of Commerce, William Lemons of Cox and Smith. *696 FACTS The debtor, Giles Associates, Ltd., filed a voluntary petition under Chapter 11 of the Bankruptcy Code on January 4, 1988. Since that date, the debtor has ...
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MEMORANDUM OPINION RE: PRODUCTION CREDIT ASSOCIATION’S MOTION FOR ON-SITE AUCTION SALE At the last hearing of Production Credit Association of North Central Michigan's (hereafter “PCA”) motion for authority to hold an auction sale of its collateral on the debtor's premises, the Court required PCA, the moving party, to produce some authority for its request. In the intervening time, both PCA and t...
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ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT This adversary proceeding came on before the Court on September 15, 1988, for hearing on Plaintiff’s motion for partial summary judgment and Defendants’ responsive motion for full summary judgment. Plaintiff appeared by its attorney, William D. Paul. Defendants appeared by their at...
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ORDER VACATING FINAL JUDGMENT BY DEFAULT THIS IS a Chapter 7 case and the matter under consideration is brought to this Court’s attention by a pro se Debtor who on October 31, 1988, addressed a letter to this Court objecting to the entry of a Final Judgment by Default instituted against the Debtor by Centrust Savings Bank (Cen-trust) in Adversary No. 87-305. The Court, having reviewed the allegati...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONFIRMATION OF PLAN OF REORGANIZATION On the 31st day of August, 1988, came on to be considered Debtor’s Second Amended Liquidating Plan of Reorganization (“Plan”), after due notice, and the Court, having considered the Plan, the objections to confirmation of the Plan filed by Alamo Savings Association (“Alamo”) and the Elm Creek Homeowners’ Associati...
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MEMORANDUM OPINION This adversary proceeding came before this court for trial upon an Objection to Discharge (Fil. # 1) under 11 U.S.C. §§ 523 and 727, filed by the First National Bank & Trust Co. of Beatrice, Nebraska (the “Bank”) against the debtors, John David Claassen and his wife Carol Ann Claassen. The Bank and the debtors entered into a stipulation of facts which was received in evidence. ...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for consideration upon the Motion to Dismiss filed by the Federal Deposit Insurance Corporation (FDIC). The Court reviewed the Motion, the record, and heard argument of counsel on August 11, 1988, and finds as follows: In 1983, the Debtors, Donald Fulks and Polly Fulks, filed for relief under Chapter 13 of the Bankruptcy Code, Case No. 83...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in this Chapter 7 adversary proceeding is a Complaint to Determine Dischargeability of Debt pursuant to 11 U.S.C. § 523(a)(6). Plaintiffs filed a Motion for Summary Judgment alleging there remain no genuine issues of material fact and that the issues may be decided as a matter of law. The Court reviewed the Motion and the recor...
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ORDER On August 24, 1988, the Court conducted a hearing on the motions of Bruce R. Davis, a party-in-interest in the above-referenced Chapter 7 proceedings, for the assessment of damages and for contempt against Elmer Buchta, Jr. and Buchta Trucking, Inc. pursuant to 11 U.S.C. § 362(h). Davis, a principal of the related Chapter 7 debtors, whose cases were consolidated for purposes of administra...
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The debtors in this case filed a petition under the provisions of Chapter 13 of Title 11 U.S.C. on January 5, 1987. Accompanying their petition was a plan which proposed that their secured creditors be paid 100% of their claims, while unsecured creditors be paid 20% of their claims. Included among their secured creditors was Commonwealth Savings & Loan Association (Commonwealth), which was sche...
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*966 MEMORANDUM OPINION Brenda Joyce Lam, individually and as next friend for her minor daughter, Dena Leslie Buechler, a/k/a Dena Leslie Hyde, filed a joint petition for herself and her daughter under Chapter 7. The Trustee and the Court expressed concern as to whether a joint parent-sibling petition is permitted by the Bankruptcy Code, a hearing was held, and counsel for the co-debtors has ...
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ORDER On October 15, 1987, Westside Creek Limited Partnership (debtor-in-possession) filed a voluntary petition for relief under the provisions of chapter 11. On June 21, 1988, a hearing was held on the Gill Law Firm’s application for an award of interim compensation pursuant to 11 U.S.C. §§ 330 and 331. The application requested an attorney’s fee of $41,310.50 and expenses of $3,948.56 f...
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ORDER On January 11, 1988, G. David Williams filed a voluntary petition for relief under *182 the provisions of chapter 7 of the United States Bankruptcy Code. Hon. Daniel K. Schieffler was appointed trustee. Pursuant to 11 U.S.C. § 522(b)(2), Ark.Code Ann. § 16-66-209 (1987) and Ark.Code Ann. § 16-66-218(b)(7) (Supp.1987), the debtor claimed the following as exempt from inclusion in his bank...
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MEMORANDUM DECISION ON TRUSTEE’S APPLICATION FOR ALLOWANCES OF COMPENSATION AS TRUSTEE AND AS ATTORNEY The trustee in this chapter 7 case has presented separate applications for compensation in his dual capacities as trustee and as attorney for the trustee in a bankruptcy that consumed less than twelve hours of effort. He seeks $1,190.00 (plus $52.00 in costs) for his services as trustee ...
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MEMORANDUM DECISION AND CONDITIONAL ORDER DIRECTING CONVEYANCE OF POSSESSORY INTEREST This matter came to be heard upon the motion of the Trustee, Marilyn Frier, to dismiss the debtor’s voluntary Chapter 7 petition pursuant to 11 U.S.C. § 305 or in the alternative, for an order authorizing abandonment of all the debtor’s assets as being burdensome to the estate, and for such other and fur...
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MEMORANDUM OPINION Before the Court is Plaintiff’s Complaint to Determine Secured Status and Amount of Creditors’ Claim. The parties have stipulated to the relevant facts. The sole remaining issue is whether Defendants possess a perfected security interest in Plaintiff’s liquor license. The parties have argued the issue and have submitted briefs. Based upon same and this Court’...
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MEMORANDUM OPINION Came on for consideration Trustee’s Objection to Secured Claims of Class 8 Creditors wherein the Trustee objected to the claim of Cummings and Pewitt Inc. for engineering services performed by the claimants benefitting real property of the Debtor. The Trustee alleges that the Mechanic’s and Materialmen’s lien claimed by Cummings and Pewitt Inc. is invalid and requests t...
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MEMORANDUM OPINION AND ORDER On March 24, 1988, Debtor filed his voluntary Chapter 13 Petition wherein he listed no secured debt and $19,066.00 in unsecured debt. Of that sum, he listed the City of Longmont as an unsecured creditor for $449.00 as a “Ticket for Custody and Leash Violation”. On June 7,1988, the Debtor’s Chapter 13 Plan was confirmed. Under that Plan, the Debtor was to pay $50.0...
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This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the standing Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B, C, K, M, O). The plaintiff, the Chapter 13 Trustee, seeks a determination that the agreements in these five (5) cases, all of which involve similar, but not t...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of John A. Rhodes and Karol J. *623 Rhodes (hereinafter, defendants or debtors), for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 1 The complaint to which defendants direct their motion alleges that debtors are barred by § 523(a)(2)(A) 2 of the...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Plaintiff’s Motion for Summary Judgment to except its claim from discharge in bankruptcy pursuant to 11 U.S.C. § 523(a)(2), (4) and (6), and the Debtor’s Response thereto. For the reasons set forth below, the Court grants the Plaintiff’s Motion, and orders that its principal claim be excepted from Debtor’s discharge ...
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ORDER ON MOTION TO CONVERT The United States Trustee filed a Motion to Convert this Chapter 11 case on numerous grounds. After a hearing to consider said Motion I conclude that the Motion should be denied for the reasons set forth herein. Debtor is the proprietor of a retail pharmacy business. In October 1985 his Chapter 11 case was filed. As of this date Debtor has been unable to pr...
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MEMORANDUM OPINION AND ORDER The matter before the court is a Motion for Relief from Stay filed on behalf of Fidelity Union Life Insurance Company (Fidelity). On December 3, 1981, Debtor’s predecessor executed and delivered to Fidelity a promissory note in the amount of $2.4 million plus interest. The indebtedness payable under the terms of the note was secured by a mortgage on real estate and an...
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MEMORANDUM OPINION By this adversary proceeding the debtors, Nathaniel and Cleo Richardson, seek to recover from the defendant Philadelphia Housing Authority the sum of $685.00 as a voidable preference under § 547(b) of Title 11. Their right to bring this recovery action is premised on Bankruptcy Code §§ 522(h) and 547(b). 1 The defendant raises the affirmative defense that the...
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MEMORANDUM OPINION AND ORDER The matter before the court is a Motion for Relief from Stay and Other Relief filed on behalf of Missouri State Employees Retirement System (MSERS) against Oklahoma Associates, a Pennsylvania limited partnership (Debtor). The facts are as follows. In 1984 MSERS obtained a mortgage to secure a debt for $1.9 million against certain commercial real estate known as the Py...
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ORDER RE: DEBTOR’S PLAN OF REORGANIZATION Came on for hearing May 23, 1988 the proposed confirmation of Debtor-in-Possession’s Plan of Reorganization (“Plan”). After hearing the evidence and arguments of counsel, and considering various authority, the court reaches the following findings of fact and conclusions of law. To the extent any findings of fact herein are construed to be conclusi...
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MEMORANDUM OF OPINION AND ORDER On September 20, 1988 came on for hearing the complaint of Robert H. Boyd to determine dischargeability of a debt pursu *539 ant to 11 U.S.C. § 523 and for validation of a second lien on real property. After review of the pleadings, evidence and relevant case law in this matter, this court makes the following findings of fact and conclusions of law. To the ex...
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MEMORANDUM AND ORDER Came on for hearing the Emergency Motion for Authority to Disburse Funds to the Internal Revenue Service filed by Debtor, Jerald A. Turboff, and after considering the pleadings, memoranda and arguments of counsel, the court enters the following Order. To the extent any findings of fact herein are construed to be conclusions of law, they are hereby adopted as such. To ...
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MEMORANDUM OPINION The International Ladies’ Garment Workers Union and the ILGWU National Retirement Fund, joined orally by another creditor, have filed an application to take examinations pursuant to Bankr.Rule 2004 of the following individuals: Gerald J. McCono-my, Esquire; James M. Matour, Esquire; Erwin L. Pincus, Esquire; Frank G. Santil-lo; Harry J. Conn; and George M. Collie. All b...
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OPINION A. INTRODUCTION The instant proceeding features a creative invocation by the Trustee of a Chapter 7 business Debtor of his powers to avoid certain transactions of the Debtor as fraudulent conveyances. Herein, the Trustee attempts to set aside a transfer of the Debt- or’s stock, ultimately proven worthless, to one of the factions involved in pre-petition litigation over contro...
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MEMORANDUM AND ORDER Came on for hearing, United Crane & Rigging, Inc., Emergency Motion for Authority to Use Cash Collateral, and after considering the evidence and testimony presented, the court enters the following Order. To the extent any findings of fact herein are deemed to be conclusions of law, they are hereby adopted as such. To the extent any conclusions of law herein are considered to ...
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MEMORANDUM OPINION JURISDICTION This court has jurisdiction over this case pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11), 28 U.S.C. § 157(a) (authorizing the district courts to refer all Title 11 cases and proceedings to the bankruptcy judges for the district) and General Order No. 266, dated October 9, 1984 (r...
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MEMORANDUM AND ORDER ON MOTIONS FOR PARTIAL SUMMARY JUDGMENT This cause having come before the Court on Debtor’s Motion for Partial Summary Judgment and United States of America’s Internal Revenue Service (“IRS”) Motion for Partial Summary Judgment and the Court finding that there are no genuine issues of material fact as to the following issues, finds and concludes: 1. The IRS claim for 1977...
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MEMORANDUM AND ORDER The Court having heard argument of counsel and reviewed the post-hearing briefs on Scullin Steel Company’s Motion to Change the Membership of the Creditors’ Committee, enters the following Order. ■ To the extent any findings of fact herein are deemed to be conclusions of law, they are hereby adopted as such. To the extent any conclusions of law herein are considered to be f...
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MEMORANDUM AND ORDER Trial having been held March 11, 1987 in this case, and the court having considered the pleadings, trial statements, evidence, arguments, and post-trial briefs herein, enters the following Memorandum and Order of nondischargeability. To the extent any findings of fact contained herein are considered to be conclusions of law, they are hereby adopted as such; to the ext...
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MEMORANDUM AND ORDER On March 17, 1988, trial concluded on Trustee’s complaint to recover unauthorized and undisclosed transfers of estate property as compensation for professional services. After considering the evidence presented and argument of counsel, the court issues the following Memorandum. To the extent any of the following conclusions of law are construed as findings of fact, they are...
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MEMORANDUM OF DECISION On December 14, 1987, hearing concluded on Debtor’s Motion to Reject Executory Loss Fund Agreement. After considering the evidence presented and argument of counsel, the Court issues the following Memorandum. To the extent any of the following findings of fact are construed as conclusions of law, they are hereby adopted as such. To the extent any of the following co...
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MEMORANDUM DECISION AND ORDER This matter comes before the Court on the Motion of Francis Conway (“Movant”) seeking termination of the injunction as provided in sec. 524(a)(2) and the concurrent motion filed by the debtor for the avoidance of the lien asserted by the Mov-ant pursuant to sec. 522(f)(1) of the Bankruptcy Code. The Court, being fully advised in the premises, finds as follows: On...
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MEMORANDUM OPINION The Federal Savings and Loan Insurance Corporation (“FSLIC”) as Receiver for American Federal Savings and Loan Association (“American Federal”) brought before me motions for substitution of proper party and for summary judgment (the “Motions”). I heard the Motions on October 20, 1988 and took the matters under submission. JURISDICTION This court has jurisdicti...
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DECISION AND ORDER On the 23rd day of June 1988, in San Antonio, Texas, came on to be heard the objections of First City Bank-Central Park, First City Bank-Forum, N.A., San Antonio Savings Association and Texas Commerce Bank-San Antonio (“creditors”) to the exemptions claimed by Harvey Komet and Eleanor B. Komet (“debtors”). The debtors elected the “state exemptions” in their schedul...
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*571 MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on the Trustee’s Motion for Approval of and Authority to Perform Compromise and Settlement Agreement with Zula J. Wolfram. The Securities Investor Protection Corporation filed a Memorandum in opposition to the proposed settlement. At the Hearing, the parties had the opportunity to present the eviden...
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MEMORANDUM DECISION This cause came on to be heard upon the court’s own motion. A hearing was held on Wednesday, July 13, 1988 at 10:00 a.m. to consider whether or not recusal of the judge in this cause was appropriate. The court conducted a hearing at which it invited evidence or argument from any party. In addition, the court invited Valerie Greenberg, Phillip Stelly and their supe...
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MEMORANDUM OPINION The debtor, Eric M. Freedlander, filed a Chapter 11 petition on April 7, 1988, and the first meeting of creditors was held May 9, 1988. On August 4, 1988, an Order was entered converting the debtor’s bankruptcy case to a case under Chapter 7 of the Bankruptcy Code. The debtor filed a homestead deed in Caroline County, Virginia, the county of his residence, on August 19,...
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MEMORANDUM OPINION During the administration of this case, it came to the attention of the court that some attorneys and some other persons in the Southern District of Florida are abusing the bankruptcy system in the following manner. They are advising persons clearly *390 ineligible for chapter 13 relief to file chapter 13 petitions and are advising other persons to file chapter 7 and chapte...
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OPINION Presently before us is a motion filed by movant, Jack Causa (“movant”), requesting relief from the automatic stay under 11 U.S.C. § 362(d)(1) to pursue an equitable distribution proceeding in state court. 1 No testimony or evidence was *411 presented by either party at the hearing held on this matter, but a stipulation of facts has been filed. Because we find, on such facts, that mo...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on Plaintiff’s Complaint to Determine Dis-chargeability of Debt. At the Trial, the parties had the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the testimony and the arguments of counsel, as well as the entire record in this case. Based on that revi...
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96 B.R. 388 (1988) In re Juana F. STEPHENSON, James E. Stephenson, Debtors. Juana F. STEPHENSON and James E. Stephenson, Plaintiffs, v. UNITED STATES of America, Defendant. Bankruptcy Nos. 87-02044-BKC-AJC, 87-02161-BKC-AJC, Adv. No. 87-0471-BKC-AJC. United States Bankruptcy Court, S.D. Florida. September 20, 1988. Jerry M. Markowitz, Miami, Fla., for plaintiffs/debtors. Paul E. Pelletier, Trial ...
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is before the court upon plaintiff’s motion for summary judgment and defendant Frederick L. Hotchkiss’ memorandum in opposition thereto. Upon consideration thereof, the court finds that *547 plaintiff’s motion is not well taken and should be denied. FACTS Plaintiff/trustee, on January 15, 1984, filed a complaint...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Trustee’s Objection to Claim # 371 of Jesse W. Sentle, Sr. This matter being primarily an issue of law, the parties have consented to the Court making its decision based on the Briefs of counsel. Briefs have been filed by the Trustee, Jesse W. Sentle, Sr., and the International Brotherhood of Teamsters, Local No. 20. Th...
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MEMORANDUM DECISION AND ORDER DENYING MOTION OF CREDITOR CREDITHRIFT INDUSTRIAL LOAN COMPANY TO COMPEL SURRENDER OF COLLATERAL AND GRANTING MOTION BY DEBTORS TO AVOID CREDITHRIFT’S NON-PURCHASE-MONEY SECURITY INTEREST This matter came before the court on the Motion to Compel Surrender of Collateral of creditor Credithrift Industrial Loan Company pursuant to 11 U.S.C. § 521(2), and debtors...
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MEMORANDUM OF OPINION ON BUSINESS HOMESTEAD i . Joseph L. Moore, d/b/a Radford Hills Laundry (Debtor), seeks to set aside a lien *481 held by Bank of Commerce of Abilene, Texas (Bank) asserting that it constitutes an invalid lien on his business homestead. Facts In 1978, the Debtor and his wife, Alma Faye Moore, moved from Kentucky to Abilene, Texas. They purcha...
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ORDER This matter comes before the Court on the Debtors’ Motion for Judgment on the Pleadings which was filed with the Court on November 14, 1988. In his Amended Complaint, the Plaintiff, CURTIS JONES, contends that the Debtors’ minor child committed an undisclosed, intentional tort against him. The Plaintiff asserts that the Debtors’ statutory obligation for their child’s intentiona...
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MEMORANDUM OPINION JURISDICTION This Court has jurisdiction over the parties and subject matter of this proceeding pursuant to 28 U.S.C. §§ 1334,151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pur*675suant to 28 U.S.C. § 157(b)(2)(H), which the Court may hear and determine. BACKGROUND The Debtors filed a voluntary...
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ORDER BACKGROUND The Debtor in this case filed his voluntary petition for relief under Chapter 11 on the morning of September 9, 1988. This petition stayed the foreclosure sales that were scheduled for later that day by The Farm Credit Bank of St. Louis. The Farm Credit Bank of St. Louis holds a first lien on Debtor’s real property located in Lewis, Clark and Monroe Counties. On October 17, 1988, ...
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MEMORANDUM OPINION This cause came before the Court on the Debtor’s Objection to the Proof of Claim filed by THE OHIO DEPARTMENT OF NATURAL RESOURCES, DIVISION OF RECLAMATION (“ODR”). The Debtor was initially incorporated in 1972 for the purpose of mining and selling sand, gravel, and other crushed stone. The site of the Debtor’s operations was owned by Mr. James H. Burn, former Pres...
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MEMORANDUM OPINION This cause came before the Court on the Trustee’s adversary Complaint filed on December 8, 1987. The Complaint seeks (1) a declaratory judgment finding the Plaintiff’s loss to be covered under a securities dealer blanket bond issued by NATIONAL UNION FIRE INSURANCE COMPANY (“NUFIC”); and (2) an Order directing NUFIC to pay the Trustee One Million & 00/100 Dollars ($1,00...
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OPINION Creditor Newton Exploration Company appeals a judgment of the bankruptcy court granting the recovery of $100,232.75 to the debtor’s estate as a preferential payment. Although the payment from the debtor to Newton was mailed 91 days before the debtor filed its Chapter 11 petition, the check was received and honored by the debtor’s bank during the preference period. FACTS ...
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OPINION A. INTRODUCTION The instant little adversarial proceeding presents to us a glimpse of the dark side of the marketplace, revealing that, as in the 1960’s, the poor may still pay far more for everyday consumer goods than more affluent members of the community. See D. CAPLOVITZ, THE POOR PAY MORE, 81-104 (1967); and W. MAGNUSON & J. CARPER, THE DARK SIDE OF THE MARKET...
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ORDER This matter is before the Court on a Motion to Dismiss filed by the Farm Credit Bank of St. Louis (“FCB”). The issue to be decided is whether at least 50% of debtors’ 1987 gross income came from their farming operation so as to qualify them as “family farmers” for purposes of Chapter 12 of the Bankruptcy Code. Only family farmers with regular income are eligible for Chapter 12 relief. 1...
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MEMORANDUM OPINION In this case the Court is required to decide whether interest on post petition taxes is entitled to administrative expense priority under section 503 of the Bankruptcy Code. The Internal Revenue Service (the “IRS”) asserted an administrative claim for federal unemployment taxes applicable to the period after the Debtor filed its petition for reorganization under Chapter...
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MEMORANDUM OPINION ON DEBTORS’ VERIFIED COMPLAINTS FOR INJUNCTIVE RELIEF PURSUANT TO 11 U.S.C. § 105(a) I. Procedural Background On October 25, 1988, Messrs. Nelson Bunker Hunt (“NBH”) and William Herbert Hunt (“WHH”) (the “Debtors”) filed their Verified Complaints for Injunctive Relief Pursuant to 11 U.S.C. § 105(a)' (“Complaints”), seeking temporary injunctions against the Comm...
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OPINION The matter before me is brought by the trustee of Oxford Royal Mushroom Products, Inc. (the debtor), who objects to a proof of claim filed by Frezzo Brothers, Inc. (claim # 179). Frezzo contends that it is the recipient of an assignment by D and M Mushroom of a claim against the debtor, and that therefore it is entitled to the distribution of $11,682.37 made to D and M Mushroom by...
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MEMORANDUM AND ORDER On January 4, 1988, debtors, Robert and Maxine Van Cloostere, filed their individual bankruptcy petition under Chapter 7 of the Bankruptcy Code. Debtors are the officers and sole shareholders of Texas Junction Grain, Inc., a grain elevator in Murphys-boro, Illinois. As such, debtors had executed a guaranty agreement with the Illinois Department of Agriculture (Department) i...
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MEMORANDUM The question presented on cross-motions for summary judgment is whether Cen-Trust Savings Bank has a perfected securi *602 ty interest in the debtors’ boat and motor. CenTrust Savings Bank has a perfected security interest under TENN.CODE ANN. § 47-9-103(2)(b) and § 47-9-302(3)(c) (Supp.1985). This is a core proceeding. 28 U.S.C. § 157(b)(2)(A), (K). The following are findings of...
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MEMORANDUM OPINION AND ORDER The sole issue before the court is whether the court retains authority to act pursuant to 11 U.S.C. § 1113 to enforce its previously issued orders modifying a collective bargaining agreement when the agreement has since expired by its own terms. The pertinent facts are as follows: D.O. & W. Coal Company, Inc., (“debtor”) filed a petition under ...
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MEMORANDUM OPINION RE LANDLORD’S MOTION FOR SUMMARY JUDGMENT THAT LEASE BE DEEMED REJECTED The Debtor has filed a Motion for Authority to Assume and Assign Unexpired *2 Lease of Real Property and To Determine Required Cure Related Thereto. Docket Entry (“DE”) No. 83. The subject lease (“the Lease”) relates to premises at Washington Harbour, a development located along the Pot...
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MEMORANDUM OPINION This case concerns the retention of two sums of money by the defendant, Crestar Bank, f/k/a United Virginia Bank (“Cres-tar”), with whom the debtor, Craddock-Terry Shoe Corporation (“Craddock-Ter-ry”), had a checking account. The first sum, $16,000, resulted from an accidental overpayment which occurred when another bank encoded one of the debtor’s checks with an incorr...
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OPINION A. INTRODUCTION Before us are (1) A motion by the Secretary of the United States Department of Health and Human Services (hereinafter referred to as “HHS”) seeking relief from the automatic stay in the above-captioned main bankruptcy case in order that it can recoup pre-petition Medicare overpayments to the Debtor-hospital against post-petition Medicare payments otherwise due...
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*440 ORDER DENYING MOTION FOR § 362(h) SANCTIONS This matter is before the court on the debtors’ motion for sanctions against Ford Motor Credit Company and Gilbert J. Scar-lett, III, for violating the automatic stay by repossessing the debtors’ truck. The court has concluded that no injury and no willful violation of § 362 occurred here. Consequently, the debtors’ motion must be denied. FAC...
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OPINION AND ORDER ON MOTION FOR DETERMINATION OF NON-CORE STATUS AND REPORT AND RECOMMENDATION ON MOTION FOR ABSTENTION Preliminary Statement This adversary proceeding is before the Court upon the Motion for Determination of Noncore Status and Abstention filed by Rite Aid Corporation (“Rite Aid”). Rite Aid seeks a determination from this Court that the instant action is a noncore...
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MEMORANDUM OPINION ON FIRST INTERIM FEE AND EXPENSE APPLICATIONS This case involves the reorganization of a regulated public electric utility company in which there are pending numerous interim fee and expense reimbursement applications filed and noticed under this court’s “Order Establishing Interim Fee And Expense Reimbursement Application Procedure” dated May 11, 1988. [See Annex “A” t...
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MEMORANDUM DECISION ON APPLICATION FOR ALLOWANCE The law firm of Hebb & Gitlin, counsel for Metropolitan Life Insurance Company (“Metropolitan”) and Travelers Insurance Company (“Travelers”) seek an allowance of compensation in the sum of $186,881.50 and reimbursement for expenses in the sum of $10,984.97 pursuant to 11 U.S.C. § 503(b)(4). They assert that they played a vital and visible ...
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OPINION MICHIGAN BUILDERS TRUST FUND ACT — TRACING The defendant insurance fund is entitled to receive contributions from Imperial Tile and Carpet under the collective bargaining agreement between Imperial and its employees. Imperial failed to pay certain sums due to the insurance fund under the contract. The insurance fund sued. The parties entered into a consent judgment, but Imperial paid ...
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STATEMENT OF THE CASE Patricia Jackson Updike, Plaintiff, filed a petition for relief under Chapter 11 of the *796 Bankruptcy Code on March 29, 1988. On April 8, 1988, Plaintiff filed a complaint against First Federal Savings and Loan Association of Columbus, Defendant. In her complaint, Plaintiff asserts that Defendant holds a security deed which may be avoided as a preferenc...
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ORDER This matter having come on for hearing upon the motion of The Federal Land Bank of Jackson, In Receivership, for Reconsideration of this Court’s orders converting the debtors’ Chapter 11 cases to cases under Chapter 12, or in the alternative, to Dismiss the debtors’ Chapter 12 Proceedings; due notice of said hearing having been given; and the motions in these cases having been consolidated b...
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MEMORANDUM The matter before us exemplifies what may appear as overly-harsh consequences which the Third Circuit Court of Appeals has twice recently held must follow from a failure of a professional to obtain court appointment in timely fashion. In re F/S Airlease II v. Simon, 844 F.2d 99, 105-08 (3d Cir.1988); and In re Arkansas Co., 798 F.2d 645, 648-51 (3d Cir...
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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 a Complaint filed by the Plaintiffs, David E. Kimmle and Robert B. Morris, II, as personal representative of the estate of Charles Richard Kimmle (Plaintiffs), which seeks a determination that certain debts allegedly owed by Robert B. Cramer (Debt- or) should be...
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MEMORANDUM OF DECISION This matter is before the court on a motion to dismiss filed pursuant to 11 U.S. C. § 707(b) by the Trustee. The motion came before the court for a hearing on September 27, 1988, at which the court heard evidence concerning the motion and the arguments of counsel. Section 707(b) provides: [T]he court, on its own motion or on a motion by the United States T...
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ORDER ASSESSING SANCTIONS AGAINST CITIBANK (SOUTH DAKOTA) NA This matter is before the court on the debtor’s motion for § 362(h) sanctions against Citibank (South Dakota) NA (hereinafter “Citibank”). For the reasons set forth below, the court finds that sanctions should be assessed. Facts Prior to filing his bankruptcy petition, the debtor had VISA and MasterCard credit card accounts with...
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ORDER ON MOTION TO DETERMINE EXTENT AND VALIDITY OF LIENS THIS IS a Chapter 11 case and the matter under consideration is a Motion filed by Sojack Miller, Inc. (Debtor), who seeks a determination of the priority, validity and extent of liens of James E. Brown and Mayme Brown (Browns), the United States *769 Government/Internal Revenue Service (Government) and 0. Sanford Jasper, the Tax Collec...
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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 the right of Albert M. and Mary Jean Goblick (Debtors) to a general bankruptcy discharge. The Debtors’ right to discharge is challenged in three separate adversary proceedings: one filed by Manhattan Leasing Systems, Inc. (Manhattan Leasing), Adversary No....
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ORDER This case is before the Court on Rule 56 cross-motions for summary judgment filed by Plaintiffs and Intervenor Bay Bank. The underlying facts are not in dispute. Plaintiffs are seeking a determination that benefits payable under the Longshore and Harbor Workers Compensation Act (LSHWCA) are administrative expenses under Section 503 of the Bankruptcy Code. Bay Bank, a secured credito...
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OPINION This matter comes before the court on the application of various parties in interest seeking confirmation of their respective plans of reorganization of the debtor company. All of the plans propose to pay *851 stockholders 100 percent plus interest. The debtor has presented no plan for confirmation. 1 PROCEDURAL HISTORY During the course of the proce...
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MEMORANDUM OF OPINION THIS MATTER came before the Court for hearing on October 17, 1988, on the motion of the United States Trustee to dismiss pursuant to § 707(b) of the Bankruptcy Code. The debtors appeared and requested additional time to revise their schedule of current income and expenses and to file a written response to the United States Trustee’s motion. The Court granted the debtors an...
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*756 SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came on for final hearing pursuant to § 362(c) of the Bankruptcy Code (11 U.S.C. § 362(a)) on the motion of Heller Financial, Inc. (“Heller”) for relief from the automatic stay imposed by § 362(a) of the Bankruptcy Code. At the conclusion of the hearing, the Court orally set forth findings of fact and conclusions of law in ...
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MEMORANDUM OPINION The matter presently before the Court is a Complaint For Avoidance and Recovery for Preferential Transfer filed by the Chapter 7 Trustee, James A. Lewis, Esq., (hereinafter Trustee), against Thomas J. and Linda M. Diethorn (hereinafter Defendants). This is a core proceeding. 28 U.S.C. § 157(b)(2)(F). Trial commenced on January 26, 1988, the record was reopened, and...
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MEMORANDUM OPINION ON TRUSTEE’S OBJECTION TO CONFIRMATION THIS MATTER came on for hearing on confirmation of the debtor’s Chapter 12 *747 plan of reorganization. The trustee objected to confirmation on several grounds, all but one of which were resolved at the confirmation hearing. The single remaining objection is to the provisions in the plan which allow the debtor to pay all of his secured...
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MEMORANDUM OPINION This interesting proposed expansion of 11 U.S.C. § 523(a)(9) arises out of an adversary action filed by Beck Motors, Inc. (hereinafter plaintiff) against Scott Jay Gill and Jane Phyllis Gill (hereinafter defendants). The facts are stipulated and may be stated very simply. On April 25, 1987, defendants purchased a 1980 Plymouth Horizon from plaintiff and executed a promissory ...
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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 a Complaint objecting to the Debtors’ discharge pursuant to § 727(a)(2) and (a)(5) of the Bankruptcy Code. In Count I of the two-count Complaint James R. Jessell (Trustee) seeks a determination that Leonard L. Sword and Patricia J. Sword’s (Debtors) discharge shou...
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MEMORANDUM OPINION This court is required again to address an area of the law of bankruptcy which many judges enter with trepidation but which holds understandable continuing in *1005 terest to attorneys — the allowance of attorney’s fees. 1 I must decide two separate fee questions: 1. Should the trustee’s attorney be awarded a fee enhancement (or bonus) und...
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MEMORANDUM AND ORDER The matter before the court is an adversary proceeding by which the trustee seeks to recover payments made by the Debtor, Anchorage Marina, Inc. (Anchorage), to the defendants. The trustee asserts that the payments constituted fraudulent and preferential transfers. Defendants Robert B. Hart and Arnold Ketterling were Anchorage shareholders and directors. Defendant Har...
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MEMORANDUM OPINION We are called upon to rule upon a motion for reconsideration of an order entered by the Court on June 14, 1988, disallowing a homestead exemption elected by the debtor under Virginia law. After careful consideration of the relevant state and federal statutes, this Court denies the motion for reconsideration and sustains its prior ruling. 1 David M. Godfrey ...
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ORDER MODIFYING STAY This matter is before the court on the motion of a secured creditor, Carlyle Real Estate Limited Partnership-VIII (“Carlyle”), for relief from the automatic stay in order to enforce its rights in its collateral. After considering all of the evidence and the argument of counsel the court concludes that the stay should be modified in the manner set out below. Background Fa...
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MEMORANDUM ON PLAINTIFF'S MOTION TO ADMIT INTO EVIDENCE THE DEPOSITION OF AN UNAVAILABLE WITNESS Plaintiff filed a “Motion To Admit Into Evidence The Deposition Of An Unavailable Witness” on July 7, 1988. By its motion plaintiff seeks an order allowing into evidence, pursuant to Fed.R.Civ.P. 32(a), incorporated into Fed.R.Bankr.P. 7032, parts of prior deposition testimony of the debtor, David A...
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MEMORANDUM OF DECISION This case is before the court for confirmation of the debtor’s Chapter 13 plan, a matter within the core jurisdiction of the court pursuant to 28 U.S.C. § 157(b)(2)(L). For the reasons stated below, confirmation is denied, on the ground that the plan unfairly discriminates between two classes of unsecured claims. Findings of Fact On March 26, 1988, James D...
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ORDER ON MOTION TO COMPEL TURNOVER On July 20, 1988 the court conducted a hearing in Council Bluffs, Iowa on the trustee’s motion to compel turnover of property. Charles L. Smith, the Chapter 7 trustee, was present. Jack E. Ruesch appeared on behalf of the trustee. C.R. Han-nan appeared on behalf of the debtors. The issue presented is what interest, if any, does the estate have in certain...
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MEMORANDUM OF DECISION The United States of America on behalf of the Small Business Administration (SBA) filed a motion to dismiss the above captioned adversary proceeding on July 14, 1988. In their complaint to determine secured status, the Hoyts ask the court to determine the extent of the SBA’s secured claim and to order the release of unsecured claims or to permit the curing of defaul...
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MEMORANDUM OF DECISION I. STATEMENT OF FACTS The parties are in agreement as to all relevant facts. The debtor, Concord Senior Housing Foundation (“Concord”), filed its voluntary petition' under Chapter 11 on March 3, 1986. On July 31, 1986 Concord’s bankruptcy case was converted to one under Chapter 7. Gilbert Robinson (“Trustee”) was appointed trustee of Concord’s estate. The Concord ...
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AMENDED MEMORANDUM OPINION JURISDICTION This Court has jurisdiction over the parties hereto and subject matter herein pursuant to 28 U.S.C. §§ 1334, 151, and 157 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(O), which the Court may hear and determine. BACKGROUND Debtors filed their ...
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ORDER STRIKING CLAIMS 60 AND 88 OF GARY SHURE AND DENYING COUNTERCLAIM THIS CAUSE came on before the Court on the 3rd day of October, 1988, 10:00 o’clock a.m. upon the Amended Objection to Claim Nos. 60 and 88 of Gary Shure and Counterclaim of Debtor filed by Sure-Snap Corporation (the “Debtor”) objecting to the claims of Gary Shure pursuant to Bankruptcy Rules 3007 and 7001 and counterclaiming ag...
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*206 FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Integrated Computer Solutions, Inc., (the “creditor”) for nondischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(6) against Jimmy and Rosemary Daniels (the “debtors”) and the Court having heard the testimony, examined the evidence presented, observed the candor and de...
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ORDER This matter is before the court on motion of the movant, Valentine Fettig (Fettig), for relief from the injunctive effect of 11 U.S.C. § 524 in order that he might continue with a state court personal injury action in which the Debtor, Dennis Lembke (Debt- or), is a co-defendant but who, along with his wife and co-debtor, has been granted a discharge in bankruptcy. The motion is resisted ...
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MEMORANDUM AND ORDER The matters under consideration are the confirmation of the Debtors’ Fourth Amended Chapter 11 plan of reorganization, filed September 9, 1988, and a motion to dismiss filed by the Peoples State Bank of Velva (Bank). The Farmers Home Administration (FmHA) objects to confirmation of the plan, stating that its election under section 1111(b) has not been reflected in the plan....
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MEMORANDUM AND ORDER This case arises by complaint filed April 4, 1988, by which the trustee, pursuant to sections 544 and 547 of the United States Bankruptcy Code, seeks to avoid the liens of defendants Emanuel Mack, Joe Mack, Donald Alexander, and Velva Community Credit Union (Credit Union). Only the Credit Union interposed an answer and has agreed with the trustee that the case may be decided ...
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MEMORANDUM AND ORDER The matter before the court is confirmation of the Debtors’ First Amended Plan under Chapter 12 of the Bankruptcy Code. The Debtors, Arlon and Rhodell Rott, filed the plan on August 10, 1988, and a confirmation hearing was held on September 7, 1988. The Small Business Administration (SBA) and Aetna Life Insurance Corporation (Aetna) have both filed objections to confirmatio...
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MEMORANDUM AND DECISION ON MOTION TO DISMISS Anca Staceseu, a 50% shareholder of the debtor, moves to dismiss this chapter 11 case because it was filed without corporate authority. For the reasons that follow, the motion is granted. I. The debtor was incorporated in 1985 under the laws of Connecticut to engage in the electrical subcontracting business. David Manson is a 50% shareholder of t...
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OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT This matter is before the Court upon cross motions for summary judgment and responses and replies thereto filed by defendant, Bank One Trust Company, N.A. (“Bank One”) and by plaintiff Thomas C. Scott, the trustee in bankruptcy for the estate of John McCombe (“Bankruptcy Trustee”). McCombe has supported Bank One’s motion by a memorandum in...
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AMENDED DECISION Shortly after involuntary petitions in bankruptcy (all Chapter 7) were filed against these five debtors, but prior to the entry of any order for relief, the five debtors, which have the same principal shareholder, retained the same law firm. Since no cash was available for a retainer, the law firm took a real estate mortgage from one of the debtors, and another real estat...
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OPINION Louis and Barbara Garzarelli (hereinafter referred to as “the Creditors”) continue to vigorously oppose the Debtors at every turn, as they did in seeking relief from the automatic stay in a motion filed shortly after the bankruptcy filing which we denied on March 3, 1988, in an Opinion reported at 83 B.R. 285. We believe that this opposition is partially motivated by their disdain...
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MEMORANDUM OPINION An adversary proceeding initiated by Unified Data Systems, Inc. (UDS) has triggered a motion to dismiss from the debtor-defendant. In its complaint, UDS alleges that Almarc Corp. (Almarc) has breached a post-petition contract, thereby entitling UDS to a judgment in excess of $30,000.00. Almarc contends that this complaint should be dismissed for lack of subject matter j...
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MEMORANDUM OPINION The debtor has moved to expunge numerous claims which it alleges have been untimely filed. Various potential creditors have responded to the debtor’s motion,, by formally moving for leave to file late claims. Some of the motions for leave to file late claims assert that the claims were received within three (3) days of the bar date and are therefore not untimely, pursuant to ...
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MEMORANDUM OPINION This matter comes before the Court on the Motion of Taiman Home Federal Savings and Loan Association (Taiman) to Modify the Automatic Stay and the Objection of Taiman to Confirmation of the Chapter 13 Plan of the Debtors, Robert and Rosemarie Russo. Attorneys Francis L. Keldermans and Joseph D. Olsen represent Taiman. Attorney Alice B. Shorts represents the Debtors....
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*908 MEMORANDUM OPINION Two matters are presently before the Court. The First National Bank of Chicago (“First Chicago”) 1 and United States Trust Company of New York (“U.S. Trust”) both have filed a Motion to Obtain Security in Accordance with Terms of Indenture. Both motions are denied. First Chicago is the trustee under an indenture, dated February 15, 1967, pu...
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*75 MEMORANDUM OPINION This matter comes before the court on a Motion, filed by the Ohio State Teachers Retirement System (“STRS”), to Obtain Relief from Income Deduction Order and Termination of Order Against The Ohio State Teachers Retirement System. On May 20, 1988, the debtor filed a voluntary chapter 13 petition. At the meeting of creditors on July 15, 1988, the debtor ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint seeking an exception to discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and (B). A trial of this matter was held July 21, 1988, and upon the evidence presented, the Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. Defendant was the former owne...
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MEMORANDUM OPINION This matter comes before the court on the debtor’s objection to the secured claim of the United States Small Business Administration (“SBA”). Both the debtor and the SBA have moved for summary judgment. On May 7, 1979, the debtor executed a note in favor of the Industrial National Bank of Rhode Island (“Industrial”) for $450,000. In order to create a security interest in In...
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MEMORANDUM OPINION This matter comes before the court by the debtor’s Motion to Open Bankruptcy and to Amend Court Order. The debtor seeks to amend the order of March 16, 1988, in which the court avoided the security interest of ITT Financial Services (“ITT”) in the debtor’s stereo system. The debtor neglected to include his record and tape collection, and video cassette recorder in the origina...
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ORDER This matter is before the court on a motion to withdraw filed by Defendants’ counsel in this proceeding. The motion was the subject of a hearing attended not only by the movant but also by counsel for the Plaintiffs. Plaintiffs’ complaint in this adversary proceeding is filed pursuant to 11 U.S.C. § 523. By it, Plaintiffs seek to except all or part of the amounts due them from ...
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MEMORANDUM DECISION ON MOTION TO ENLARGE TIME FOR FILING PROOF OF CLAIM This matter 1 is before us on remand from the District Court reversing our denial of Henry’s motion to enlarge the time for filing a proof of claim. Because we find that Henry has not met the excusable neglect standard mandated by the District Court we deny Henry’s motion. We initially denied Henry’s m...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the Trustee’s complaint seeking to avoid a fraudulent transfer pursuant to 11 U.S.C. § 548(a), to determine validity, priority and extent of a lien, and to sell property free and clear of all liens. A trial of this matter was held June 2, 1988, and upon the evidence presented, the Court enters Findi...
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MEMORANDUM. DECISION 1 DETERMINING STANDARD OF PROOF UNDER 11 USC § 727(a) After Debtor’s September 1,1987 conversion from Chapter 11 to Chapter 7, 11 U.S.C. §§ 101, et seq., Chittenden initiated an adversary proceeding on December 18, 1987 opposing Debtor’s discharge under 11 U.S.C. § 727. 2 The filed complaint is with *316 in sixty days of t...
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MEMORANDUM OPINION This matter comes before the court by the Motion for an Order that Proof of Claim be Allowed on Class Wide Basis and for Expedited Disposition of this Motion (the “Motion to Allow Class Claim”). The moving parties are the named plaintiffs in a class action, In re Allegheny International, Inc. Shareholders Litigation, at Civil Action No. 86-835 (“the class action”) in the Un...
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ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS Pending is the complaint of plaintiffs, debtor Campbell Sixty Six Express, Inc. and Delta Traffic Services, Inc., seeking damages from defendant H.A. Cole Products Co. for failure to pay freight charges owed to Campbell for services rendered. Defendant has filed a motion for summary *1020 judgment. All parties have agreed...
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MEMORANDUM OF DECISION I. The issue in this adversary proceeding, brought by a chapter 7 trustee to avoid a lien on an automobile, is whether the defendant’s loan transaction papers are sufficient to provide for or create a security interest in the automobile. The parties have submitted the matter to the court upon a stipulation of facts and briefs. II. On June 17, 1987, John H. Hillman (debt- or...
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MEMORANDUM OPINION This matter comes before the court by the United States Trustee’s Motion to Dismiss. The chapter 7 trustee originally moved for dismissal, but withdrew the motion upon the motion of the United States Trustee under 11 U.S.C. § 707(b), and because of lack of standing. The court finds substantial abuse, pursuant to 11 U.S.C. § 707(b), and therefore dismisses this case. The deb...
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MEMORANDUM DECISION RE MOTIONS FOR SUMMARY JUDGMENT The plaintiff, Raymond E. Flowers, has sued to contest a foreclosure sale of a residence he and his wife owned known as 32 Madison Street, N.E., Washington, D.C. The defendants are the lender, the trustees under the lender’s deed of trust, the foreclosure sale purchaser, and the title company which conducted the real estate closing pursuant to...
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MEMORANDUM DECISION The plaintiff Anthony Motley (“Motley”) alleges that he was wrongfully discharged by the defendant Southeast Neighborhood House (“Southeast”). The matter having been tried and post-trial briefs filed, the *304Court makes the following findings of fact and conclusions of law. FINDINGS OF FACT The defendant is a non-profit community organization serving the southeast section of ...
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ORDER This matter came before the Court on July 17, 1988, on the Plaintiffs Motion for Summary Judgment. After a careful review of the law relating to this motion, the Court makes the following determination. BACKGROUND The debtor, J. Richard Calder, (Plaintiff) filed his petition for bankruptcy under chapter 7 of the Bankruptcy Code on August 19, 1986. The defendant, Roger G. S...
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MEMORANDUM OPINION Two matters are presently before the court. The Official Committee of Equity Security Holders of Allegheny International, Inc. (the “Equity Committee”) moves to intervene in the instant adversary proceeding. Mellon Bank, on its own behalf and as agent for twenty-five other banks (the “Mellon group”) moves to compel the join-der of Allegheny International, Inc. (“Alleghe...
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SUPPLEMENTAL OPINION This adversary proceeding was tried on July 25, 1988. This opinion supplements the Court’s opinion announced at a July 28, 1988 hearing. At issue is the determination of the rights of Ralph D. Kaiser Co., Inc. (“Kaiser”) arising from approximately $300,000 in promissory notes secured by a deed of trust against certain properties of the plaintiff, Richard DeFranco, the Debto...
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ORDER AND OPINION ON MOTION TO CONFIRM This matter came before the Court on the motion of the Plan Proponents herein to confirm a Chapter 11 plan for the estates of these debtors. The plan that the Court has before it is the Modified Third Amended Consolidated Plan of Reorganization (“Modified Plan”) as proposed by Frontier Holdings, Inc. (“Holdings”), Frontier Airlines, Inc. (“Frontier”)...
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MEMORANDUM OPINION AND ORDER This matter is before the Court on motion by creditor Billy R. Sanderford to compel payment of a promissory note from the proceeds of the sale of equipment allegedly mortgaged by H. White Construction Co., Inc. to Sanderford. Because determination of lien validity and an action to recover money are normally decided as adversary proceedings governed by Rules 70...
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ORDER On November 15 and 16, 1988, the Court conducted hearings on the motion filed in the above-referenced case by Atlanta English Village, Ltd. (“AEV”) and Federal Home Loan Mortgage Corporation (“FHLMC”) for adequate protection and for the Court’s direction concerning matters relating to the operation of the debt- or’s business. The Court took under advisement the question of whether t...
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MEMORANDUM OPINION FACTS In this Chapter 7 case under the United States Bankruptcy Code (hereinafter the “Code”), various creditors of a cancelled foreign corporation seek involuntary relief pursuant to 11 U.S.C. § 303. The corporation, Dickerson Supply Company, Inc. (hereinafter the “Corporation”), is a validly-existing Minnesota corporation engaged in the wholesale distribution of ...
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OPINION AND ORDER This matter is before the Court on the “Motion of Agristor Leasing-II to (1) Disqualify Debtors’ Attorneys; (2) Order Non-Compensability of Debtors’ Attorneys; (3) Order Court Examination of Debtors’ Transactions With Attorneys and To Determine Excessive Payment; and (4) To Have Lien Set Aside” (hereinafter “Motion”). James and Dorothy Watson, the debtors and debtors in ...
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MEMORANDUM OPINION On November 1st, 1988, a pre-trial conference was held in the Adversary Proceeding on the complaint of The Federal Land Bank of Columbia (Plaintiff) for declaratory judgment and relief from the automatic stay against Edward B. Smith and Jenny A. Smith, Debtors and Camille Hope, Trustee. There being no facts in dispute, the court invited briefs on the issue of whether or not a...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on the 15th day of September, 1988, on a motion by plaintiff (“NWNL”) for summary judgment in its favor. Christopher Elliott and Gordon Gendler appeared on behalf of defendant, debtor; John Thomas and Mary Sen-kus appeared on behalf of plaintiff, NWNL. T...
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MEMORANDUM OPINION Came on for consideration Trustee’s Objection To Property Claimed As Exempt. The question raised by the Trustee’s Objection and the Debtor’s Response, is apparently one of first impression. The Court is asked to determine whether the recent amendment of Article 21.22(1) of the Texas Insurance Code, exempting all lump sum payments made under an insurance policy, also exe...
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ORDER CONFIRMING PLAN This case came on for hearing to consider confirmation of the debtor’s plan and on the trustee’s objection to confirmation. Ian Traquair Ball appeared for the debtor, Edward W. Bergquist appeared for J.J. Mickelson, the trustee, and Ann Taylor, Assistant Hennepin County Attorney, ap *145 peared on behalf of Mille Lacs County and Margaret Reecy. Background The debto...
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ORDER DENYING MOTION This matter is before the Court upon the motion filed by debtors, Walter and Carol Gilmore, which seeks an order of this Court revoking the Discharge of Debtors entered on June 23, 1988. Debtors’ motion states that an order revoking the discharge is sought because “Debtors prior ... [to the discharge’s issuance were not] able to reaffirm two (2) real estate loans with the Savi...
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MEMORANDUM OPINION This contested matter comes before the Court on motion by Lloyd George Guinn, Jr., Andrew Lee Guinn, Belinda Leger Guinn, James Paul Guinn, and Laurie Roe Guinn, creditors, requesting an order to distribute funds and to quiet title to property. Maxim Bourque d/b/a Maxim’s Water Well Service, objects to the Guinns’ motion and also moves to quiet title and requests recognition of...
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OPINION AND ORDER Sleepy Valley, Inc., the debtor and plaintiff in this case, sells vacation tracts on contracts for deed. Prior to the filing of this bankruptcy, the principal for Sleepy Valley, Mr. Leo Wilson, was engaged in the business with Mr. O.B. Haley. The parties subsequently fell into dispute and literally parted company, with Mr. Wilson acquiring Sleepy Valley and Mr. Haley tak...
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MEMORANDUM OF OPINION AND ORDER Plaintiff filed the above-styled adversary complaint to determine the dischargeability of two debts pursuant to 11 U.S.C. § 523(a)(8), which excepts from discharge debts arising out of student loans guaranteed by a governmental unit or a nonprofit institution. It is before the Court on cross-motions for summary judgment. The Court finds this matter to be a ...
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MEMORANDUM OPINION AND ORDER • THIS MATTER came before the Court on the Plaintiff’s Complaint to determine dischargeability of Health Education Assistance Loans, so-called “HEAL” loans and for judgment. The issue presented is whether or not the discharge of a HEAL loan made pursuant to 42 U.S.C. § 294, is governed by the provisions of 11 U.S.C. § 1328(a) or by subsection 294f(g) of Title 42. It...
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ORDER This proceeding came on for hearing on cross-motions for summary judgment. Robert A. Nicklaus appeared for the plaintiff. Reed H. Glawe appeared for the defendant. This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103(b). This is a core proceeding un*1012der 28 U.S.C. § 157(b)(2)(E). Based on the stipulated facts, memoranda and arguments of counsel, and the f...
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MEMORANDUM OPINION This adversary proceeding was initiated by First National Bank of Midlothian (“Plaintiff” or “FNB-M”) on or about August 3, 1987. It complains of Aubrey William Harrell and wife, Florence Roderick Harrell, (“Debtors” or “Defendants”) and seeks to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(4). The Court finds that it has jurisdiction over this proc...
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MEMORANDUM An evidentiary hearing on the complaint of the trustee to avoid a particular transfer was heard August 19, 1988. Christopher Connolly of Thompson, Crounse, Pieper, & Brumbaugh appeared for the trustee. David Begley of Kennedy, Holland, DeLacy & Svoboda appeared for F.I.E. Corporation. At the hearing additional legal arguments were ordered, which the Court has received and reviewed. Thi...
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ORDER At St. Paul, Minnesota. The above-entitled matter came on for hearing on November 17, 1988, on motion by Prudential Insurance Company of America (Prudential) to dismiss this bankruptcy case for bad-faith filing, and on motions by Debtor for expanded use of cash collateral and for the approval of appointment of certain professionals. Based on the testimony and documentary evidence heard ...
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FINDING AS TO DISCHARGEABILITY OF DEBT This matter comes before the court upon the Amended Complaint to Determine Dis-chargeability of a Debt filed by the State of Ohio, ex rel. County of Summit, Department of Human Services (hereinafter referred to as “Bureau of Support”). Defendant, debtor herein, answered and a pretrial was held. The parties filed a Stipulation of Facts and Exhibits as...
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MEMORANDUM AND OPINION ON MOTION OF DEBTOR’S COUNSEL FOR COURT RECUSAL AND DISMISSAL OF COURT ORDER FOR FEE APPLICATION This is a Chapter 7 proceeding in which Trustee reported no assets and also stated in her “No-Asset” report that Debtor’s counsel Peter Geraci was paid or promised a fee of $850 herein. Along with other no-asset Chapter 7 cases, this Court ordered pursuant to 11 U.S.C. §...
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MEMORANDUM OPINION This matter came before the Court for trial on the merits of trustee’s complaint to avoid post-petition transfer. Defendant is debtor’s daughter. In his complaint trustee sought the return of some $55,000 paid to the defendant or for her benefit after the bankruptcy petition was filed that he alleged was paid in violation of Title 11. For the reasons set forth in this memorandum...
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MEMORANDUM OPINION FACTS Mercantile Bank, National Association (Mercantile), has made a motion for relief from the stay on certain writings pledged by Holiday Intervals, Inc., the Debtor, as collateral for a loan. The threshold issue addressed in this opinion is whether such writings are instruments, and thus perfected by possession, or whether such writings are contract rights, prop...
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MEMORANDUM OF DECISION CASH COLLATERAL Issues for decision are Debtors’ motions to convert from Chapter 13 to Chapter 11, and for use of cash collateral. The debtors move for an order of the Court allowing them to use $15,400.00 of cash collateral in which Twin Falls Bank and Trust Company (the Bank) has an interest. The $15,400.00 figure represents crop proceeds of the debtors’ 1988 crops in...
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ORDER This matter having come before the Court upon the Debtors’ motion to avoid judicial lien; due notice of said hearing having been given; and Theodore L. Hall having appeared for the debtors; and Stephanie K. Alexander having appeared for SouthTrust Bank of Baldwin County; and arguments and evidence having been presented; and the matter having been submitted; now, therefore, the Court finds...
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ORDER ON REQUESTED IN CAMERA STATUS CONFERENCE The State of New Hampshire as a party-in-interest in the above-captioned chapter 11 reorganization proceeding has this date filed with the court a “Motion For An Immediate In Camera Status Conference” and has submitted for possible ex parte entry an order setting the requested status conference this week, and an ex parte order limiting notice o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Milton Gene Friedman (the “trustee”) against Raymond H. Alfonso (the “debtor”) objecting to the debtor’s discharge, pursuant to 11 U.S.C. § 727(a)(4)(A) and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the a...
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DECISION ON MOTION TO RECLASSIFY CLAIM OF UNITED STATES FIDELITY & GUARANTEE COMPANY The trustee in bankruptcy in this Chapter 7 case seeks to stand in the shoes of an avoided unperfected senior attachment lien- or, and to obtain priority pursuant to 11 U.S.C. § 551 over a subsequently perfected junior secured claim held by United States Fidelity and Guarantee Company (USF & G). Based upo...
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OPINION The so-called “Motion for Reclamation Pursuant to Section 554(b) of the Bankruptcy Code” before us in the instant case, filed by Extra Executive Transport Luftver-kehrsgesellschaft, mbH (hereinafter referred to as “the Movant”), presents to us as a compelling factual setting in search of a legal basis for the relief sought. Despite the presentation of several misplaced legal theor...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEBTOR’S MOTION TO REJECT EXECUTORY CONTRACTS This matter came before the Court on debtor’s motion to reject executory contracts. Having considered the arguments of counsel, and having taken judicial notice of the pleadings in this case as well as the related removed state court proceeding, and being otherwise fully informed and advised, the Court find...
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DECISION The issue before the Court was raised at a pretrial conference held on October 13, 1988. The controversy involves the enforceability of the prepayment provision contained in the debtors’ promissory note with Colonial Bank. After hearing the respective positions of the parties, counsel were requested to submit memoranda on the limited issue of whether Colonial’s decision to accele...
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*459 DECISION ON OBJECTION TO MOTION OF .IRS FOR LEAVE TO FILE PROOF OF CLAIM OUT OF TIME In this Chapter 7 case, IRS moved for leave to file a proof of claim out of time. The resolution of the issues in question was presented to the court on a written Stipulation of Facts, Memoranda and Oral Argument. This is a core proceeding subject to the jurisdiction of the court pursuant to 28 U.S.C. § ...
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ORDER In this Chapter 13 case, a confirmation hearing was held November 22, 1988, together with the Trustee’s objections to the Debtors’ Plan and claimed exemptions. The Debtors were present and represented by Barbara E. Bell and the Trustee was present. At the close of trial, the Court took the matters under advisement. Counsel for the Debtors has filed a brief in support of the Debtors’ Chapt...
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OPINION The instant proceeding requires us to apply a factual record established by oral stipulation to a relatively obscure Code section in issue, a difficult combination of tasks. The Code section in issue, 11 U.S.C. § 549(b), concerns treatment of post-petition transfers made by debtors during the “gap” period between the filing of an involuntary bankruptcy petition and the entry of an...
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*221 MEMORANDUM OPINION Jewel F. Smith, Individually, and Jewel F. Smith, d/b/a WDBS and WDBS, d/b/a Dairyland Broadcasting, Inc., Debtor, filed a petition for relief under Chapter 7 of the Bankruptcy Code on June 20, 1988. William M. Flatau was appointed as Trustee of the bankruptcy estate. The primary asset remaining in the bankruptcy estate is an A.M. broadcasting license...
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DECISION and ORDER ON: 1) MOTION TO DISMISS, and 2) MOTION FOR RELIEF FROM STAY Respondent herein is the debtor in the related Chapter 11 case. Respondent does business as McCracken Trucking and Excavating, such business being a proprietorship. Respondent and movant are former spouses, now divorced. The Chapter 11 case was filed as a direct result of the provisions of the divorce decree entered...
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ORDER DENYING MOTION TO ASSUME EMPLOYMENT CONTRACTS WITHOUT PREJUDICE At San Antonio, Texas, on the 7th day of December, came on for hearing the motion of Debtor to assume certain executory employment contracts and the responses thereto by NCNB-Texas National Bank and by the Official Creditors’ Committee. Upon consideration thereof, 1 the court finds and concludes that the best...
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94 B.R. 602 (1988) In re Bruce E. RIGDON & Dorothy K. Rigdon, d/b/a Rigdon's Mobile Home Acres, Debtors. Bankruptcy No. 88-02385-W-13. United States Bankruptcy Court, W.D. Missouri. December 22, 1988. *603 Timothy C. Pittman, Kansas City, Mo., for debtors. Joseph M. Chiarelli, Hoskins, King, McGannon & Hahn, Kansas City, Mo., for Rigdon Family Creditors. Rick Fink, Kansas City, Mo., Chapt...
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OPINION These two adversary proceedings present perhaps the most difficult questions which remain in the wake of the Bankruptcy Amendments and Federal Judgeship Act of 1984, P.L. 98-353 (“BAFJA”), the Congressional solution to the jurisdictional impasse created by Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982). The De...
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MEMORANDUM OPINION ON TRUSTEE’S MOTIONS TO APPROVE OFFERS OF PURCHASE AND LIMITED PARTNERS’ MOTION FOR RELIEF FROM THE AUTOMATIC STAY This matter came before the Court for hearing on numerous objections to trustee’s motions to approve offers to purchase debtor’s interests in four limited partnerships and for hearing on a motion filed by five limited partners in Happy Hollow Ltd. for relie...
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MEMORANDUM OPINION The dispute before me arises in the context of an adversary proceeding brought by the debtors against the Internal Revenue Service (“IRS”), which seeks a determination that a debt owed to IRS is dischargea-ble. The defendant has filed two motions: one requesting “Partial Summary Judgment,” and another seeking a protective order denying the debtors discovery (or, in the ...
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MEMORANDUM OPINION THIS MATTER came on for consideration upon the motion of the Chapter 13 Standing Trustee for avoidance of a lien on a motor vehicle pursuant to 11 U.S.C. section 547. The creditor, Wachovia Bank & Trust Company, N.A., filed an objection to the Trustee’s motion and tendered for the Court’s consideration a Memorandum of Law in support of that objection. At the hearing on ...
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MEMORANDUM OPINION This matter comes before the Court on a motion for summary judgement and other relief filed by the statutory committee of unsecured creditors (the “Committee”) for the estate of James B. Downing & Co. (“Downing”) and joined in by the Downing estate pursuant to Federal Rules of Bankruptcy Procedure 3007, 7012, 7056 and 9014 and Federal Rules of Civil Procedure 12(b), 12(...
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ORDER SUSTAINING FIRST BANK OF OWASSO’S MOTION FOR DECLARATORY RELIEF This matter comes before the court this 15th day of December, 1988 on the Motion of First Bank of Owasso (“First Bank”) for Declaratory Relief or, in the alternative, for Modification of the Automatic Stay. The court finds that on July 27, 1988, First Bank commenced an action in the Tulsa County District Court styl...
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ORDER This matter came on for hearing on the Motion of the United States of America for Relief from Automatic Stay. Appearing *713 were Cheryl L.P. Crisona, Assistant United States Attorney, for the United States, and Charles S. Street, attorney for the Debtor. Having analyzed the arguments of counsel and reviewed the facts of this case, the Court makes the following findings of fact and conc...
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MEMORANDUM OPINION This matter came on for a trial upon the complaint of Marvin Ralph Sager (“Sager”) to determine the dischargeability of a debt of the debtor, Joseph A. Lewis, II (“Lewis” or “the Debtor”), pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). Based upon the evidence adduced at trial, the Court concludes that the indebtedness, if any, of the Debtor to Sager was properly d...
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Ruling on Request for Award of Expenses of Motion Pursuant to Fed.R.Civ.P. 37(a)(4) I. This ruling concerns the appropriateness of awarding to the defendant-movants, Ronnie E. Shaw and Linda W. Shaw, reasonable expenses for attorney’s fees which they incurred in seeking a court order to compel the plaintiff, Hartford Municipal Employees Federal Credit Union, to file answers to interrogatories subm...
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MEMORANDUM OPINION AND ORDER DISMISSING THIRD-PARTY COMPLAINT Pending are two motions to dismiss the third-party complaint filed by defendant and third-party plaintiff Empire Bank (“Empire”). The motions were filed by Randall and Trula Walker (“Walkers”) and by William A. Pitt, William J. Berberich, and Paul E. Jordan (“Officers”). Debtor filed a Chapter 11 case on April 14, 1986, which was neces...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW Pending before the court is the trustee’s complaint to avoid as preferential transfers payments made by debtors to one defendant, Empire Bank, that benefitted defendants Ernest and Ella Hughes. The Hughes are grandparents of debtor Randall Al-dridge and guarantors under a note from debtors to Empire Bank. Two hearings were held i...
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*716ORDER This matter came on for hearing on the Motion for Relief from Stay filed by Perdi-do Pass Restaurant, Inc., requesting permission to setoff $59,866.03 in withheld rent payments against money owed to its principals by the Debtor. Also before the Court is a counterclaim filed by the Debtor requesting a turnover of the withheld funds. Appearing were Beth McFadden Rouse, attorney for Movant...
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ORDER This matter came on for hearing on the Motion of the Debtors to Avoid a Security Interest of Beneficial Mississippi, Incorporated (Beneficial). Appearing were Jonathan P. Gardberg, attorney for the Debtors, and Barry A. Friedman, attorney for Beneficial. Having considered the matter, the Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1. On May 29, ...
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ORDER GRANTING THE MOTION TO REVISE THE BRIEFING SCHEDULE AND TO COMPEL DISCOVERY This matter comes before the Court on the Motion of the Trustee to Revise the Briefing Schedule and to Compel Discovery, the Memorandum in Support of the Motion to Compel Discovery, the Memorandum of Berwyn National Bank in Opposition to the Trustee’s Motion to Compel *538 Discovery, and the Rep...
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MEMORANDUM OPINION This matter came on for a hearing upon the petitions of J & K Enterprises (“J & K”), a Virginia limited partnership, seeking to commence involuntary Chapter 7 cases against Lois Charon and Jacob Charon individually. Upon consideration of the evidence presented at the hearing, and upon review of the briefs submitted by respective counsel, the Court determines that J ...
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ORDER ON MOTION OF FEDERAL HOME LOAN MORTGAGE CORPORATION This matter comes before the court on the motion of Federal Home Loan Mortgage Corporation (“FHLMC” or “Freddie Mac”) for an Order lifting the automatic stay to permit FHLMC to recover certain *146 monies on deposit at Southern National Bank in Charleston, South Carolina in account number 791518707. FHLMC has asserted ...
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OPINION AND ORDER DETERMINING JURISDICTION AND VENUE AND ORDER FOR RELIEF This matter came on to be heard upon motion of Yamaha Music Corporation for determination of jurisdiction of an involuntary petition filed against John W. Slentz, Debtor. Upon consideration of the record herein and the oral arguments of the parties, the court finds that Yamaha’s motion is well taken and should be granted,...
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MEMORANDUM OPINION In this case under Chapter 7 of the Bankruptcy Code, the last date for filing proofs of claim pursuant to Bankruptcy Rule 3002(c) was June 24, 1987. 1 The Internal Revenue Service timely filed a proof of claim for 1984 and 1985 individual income taxes, but then filed a supplemental proof of claim for 1986 taxes after the bar date. The trustee and creditors of the Debtor obj...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTION THIS MATTER is before the Court on the objection of United Bank, a creditor, to the homestead exemption claim of the debt- or with respect to certain real property located in Escambia County, Florida. The facts in this matter are not disputed and the parties have submitted memoranda setting forth their respective positions. The debtor, Joyce F...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the complaint of Milton G. Friedman (the “trustee”) against Ludwig Kaiser and Erica Kaiser, (the “debtors”) objecting to the debtors’ discharge, pursuant to 11 U.S. C. § 727(a)(2)(A) and (a)(4)(A), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the ...
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*547 MEMORANDUM OPINION The Debtor has moved for reconsideration of an order that effectively extended the bar date for filing objections to discharge and complaints to determine dis-chargeability until December 31, 1988 for certain creditors, including Dr. John Riggs. 1 The Debtor seeks an amended order that would apply the original bar date to Dr. Riggs and thereby prohibit him from filin...
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MEMORANDUM DECISION This contested matter concerns the amount of interest to be paid on a secured claim under a confirmed plan of reorganization. After a telephonic hearing held February 29, 1988, the matter was taken under advisement, and the parties were invited to submit briefs. The debtors filed a brief on April 4, 1988. No brief has yet been filed by the Federal Land Bank of Omaha. The f...
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ORDER The above-entitled matter came on for hearing on December 8, 1988, for confirmation of a Chapter 13 plan. Juanita Lolita Tatum filed an objection to the plan. Mary Jo Jensen appeared representing Ms. Tatum. Frank L. Faulhaber appeared representing the Debtor. J.J. Mickelson, the standing Chapter 13 trustee, also appeared. Based upon the files and records of the proceedings herein, and bei...
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MEMORANDUM OPINION ON OBJECTION TO CONFIRMATION THIS MATTER came on for hearing on confirmation of the debtor’s Chapter 13 plan. The standing Chapter 13 trustee represented to the Court that the debtor was current on the payments called for in the plan at the time of the hearing and that the plan appeared to be feasible; however, the trustee objected to confirmation on the basis that the plan p...
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MEMORANDUM OPINION This case is before the Court on Continental Savings Association’s (Continental) Motion to Dismiss. Because dismissal of the petition is a severe sanction, the Court noticed and conducted an evidentiary hearing on November 9, 1988. The parties appeared and presented evidence. Continental argues the Debtor’s petition was filed in bad faith, and is intended solely to frustrat...
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DECISION DENYING CONFIRMATION OF DEBTOR’S FIRST AMENDED PLAN OF REORGANIZATION AND ORDERING OTHER MATTERS This proceeding, which arises under 28 U.S.C. § 1344(b) in a case referred to this Court by the Standing Order of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administration of ...
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*695 MEMORANDUM DECISION The issues herein arise on plaintiffs Four Winds Enterprises, Inc.’s (“Four Winds”) motion for summary adjudication of facts on the issue of whether defendant First National Bank (“FNB”) has received a preferential transfer. At issue is whether the court may summarily adjudicate the following facts: 1) that there was a transfer of the debtor’s property, t...
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ORDER Heard on November 1, 1988, on the defendant, A.D.B. Investors’, Motions for: (1) a Stay, pending appeal, of this Court’s Judgment of October 21, 1988, 92 B.R. 9 (Bkrtcy.D.R.I.), and (2) Approval of ADB’s proposed Supersedeas Bond. The Trustee objects to the form of the supersedeas bond. Bankruptcy Rules 7062 and 8005 establish the procedure to be followed by an appellant seeking to stay...
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MEMORANDUM This twisted tale begins in 1987 when Mr. Burgess, an experienced real estate developer, found a piece of property on Pond Street in Attleboro, Massachusetts suitable for condominium development. Mr. Burgess approached Mr. Lewis, an experienced builder, with a deal, somewhat similar to other deals they had participated in. Burgess would buy the property and, in turn, sell it to...
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Sandra Cotton, Inc., filed its petition for relief under Chapter 11 of the Bankruptcy Code on December 14, 1984. On January 17, 1985, an order was entered appointing Robert P. Strell trustee in the Chapter 11 case pursuant to section 1104 of the Code. 11 U.S.C. § 1104. Thereafter, on January 14,1986, the case was converted to Chapter 7, and Mr. Strell was appointed interim trustee under section...
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MEMORANDUM ON OBJECTION TO EXEMPTION The matter under consideration is a creditor’s, First National Bank of Boston, objection to the debtor’s claimed exemption under 11 U.S.C. § 522. The creditor is cheered on by the trustee who is content to have the creditor take the laboring oar in what otherwise may be a no asset Chapter 7. The debtor, Deborah B. McConchie, seeks to claim her interest in a ...
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MEMORANDUM DECISION At issue is whether oversecured creditor North County Bank (“Bank”) is entitled to contractual interest on its attorneys’ fees and costs previously allowed by this court under 11 U.S.C. § 506(b). This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157 and General Order No. 312-D of the United States District Court, Southern District of Califo...
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ORDER Heard on November 23, 1988 on defendant, Francis McMahon’s, Motion to Reconsider this Court’s September 21, 1988 denial of defendant’s Motion to Vacate Entry of Default and the Objection of the Trustee. In support of his motion, defendant avers that his failure to timely answer was not willful and that he has a meritorious defense to the action, to wit: that Massachusetts requires a 21“E” Ha...
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MEMORANDUM OF OPINION AND DECISION This matter is before the Court on complaints to determine dischargeability under Section 523(a)(4) of the United States Bankruptcy Code filed by Sines and Sons, Inc. and Defendant-Debtors’ answers thereto. The parties submitted the matter for decision on stipulations and briefs. Stipulations are as follows: “I. The within adversary proceedings have been previous...
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MEMORANDUM OPINION FACTS Lewis Edgar and Teddy Sue Hydorn (hereinafter “Debtors”) filed a Petition for Relief under chapter 13 of the U.S. Bankruptcy Code (hereinafter the “Code”) on April 7, 1987. As reported by Debtors on their Schedule of Debts, dated June 16, 1987 and filed with Debtors’ Chapter 13 Plan (hereinafter the “Plan”), Debtors owed the Commerce Bank of Oak Grove $72,835...
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MEMORANDUM OPINION This case is again in this Court on remand from the judgment of the Sixth Circuit Court of Appeals filed March 27, 1985 and the opinion of that court entered on the same date, which is reported at 758 F.2d 162 (the “Opinion”). For reasons that are not altogether clear, this case has languished since the remand and came on for hearing on December 12,1988, nearly three years and ...
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MEMORANDUM OPINION The matter before the court for decision involves a motion by Ernest W. Wine and Judy C. Wine (the Wines), asking this court to vacate the order for relief entered in the above-captioned Chapter 11 proceeding. The issue to be decided is whether a corporation is eligible to be a debtor under Chapter 11 of Title 11 of the Bankruptcy Code if it has been dissolved by operat...
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DECISION AND ORDER DENYING TRUSTEE’S MOTION FOR DEFAULT JUDGMENT AND DENYING TRUSTEE’S REQUEST FOR RECOVERY OF COSTS AND EXPENSES UNDER 11 U.S.C. § 506 This matter is before the court upon the request of the trustee in bankruptcy to recover certain costs and expenses related to the sale of the debtor’s interest in real estate pursuant to 11 U.S.C. § 506 and upon the trustee’s motion for a...
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ORDER ON DEBTOR’S MOTION TO REJECT MOBILE HOME PARK TENANT’S LEASES THIS CAUSE came on to be heard upon the Debtor/Landlord’s motion to reject all leases with the numerous tenants in Debt- or’s mobile home park. The State of Florida, Department of Business Regulations, Division of Florida Land Sales, Condominiums and Mobile Homes has been allowed to intervene in this matter. No party in inter...
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DECISION AND ORDER DENYING MOTIONS OF PLAINTIFF AND DEFENDANT FOR SUMMARY JUDGMENT Dated at Dayton, Ohio this 29th day of November, 1988. This matter is before the court upon cross-motions of plaintiff and defendant for summary judgment. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This adversary proceeding is a core proceed...
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MEMORANDUM ON TURNOVER The debtor, Wayne Manor, Inc., a nursing home, seeks to compel the Massachusetts Department of Public Welfare (“Department”) to turn over $26,138.46. The Department withheld these funds from the monies it disbursed to the debtor prepetition to pay for the care of Medicaid recipients residing at the debtor’s facility. The strange history of this case started bef...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 11 case is an Amended Complaint to Recover Preference filed by the Plaintiff/Debtor, Sims Office Supply, Inc., against Defendants Ka-D-Ka, Inc. (Ka-D-Ka) and Davie E. Sims, (Davie) pursuant to Title 11 U.S.C. § 547. The Court reviewed the record, heard argument of counsel on May 12, 1988 a...
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MEMORANDUM ON RIGHTS TO A PREFERENCE RECOVERY The matters before the Court are plaintiffs Motion for Partial Summary Judgment and defendant/trustee’s Motion for Summary Judgment. Both have filed answers and affidavits. The issue before the Court is whether a perfected blanket security interest in present and after acquired assets extends to the cash recovered by a trustee in a preference ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in the above-captioned adversary proceeding is a Complaint to Determine the Tax Liability of the Debtor pursuant to 26 U.S.C. § 6672 and 11 U.S.C. § 505 (relating to ■employee withholding tax) brought by the Plaintiff/Debtor against the Defendant, United States of America. The Court reviewed the rec...
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MEMORANDUM OPINION AND DECISION FACTS On October 14, 1987, Russell and Dar-leen Sherwood borrowed $2,747.35 from ITT Financial Services (ITT). As security for the loan, the Sherwoods granted ITT a non-purchase money security interest in various items of personal property. As a condition of the loan, ITT required that the Sherwoods insure the collateral. In compliance with ITT’s demand, the Sh...
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MEMORANDUM AND DECISION ON OBJECTION TO CHAPTER 11 PLAN North American Van Lines, Inc. (NAVL), objects to confirmation of the debtor’s Fourth Amended Plan of Reorganization on several grounds, including the claim that the debtor violated its “Agency Contract” (Agreement). Specifically, the question presented is whether the debtor has competed with NAVL in violation of the Agreement. If th...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon (1) the Debtor’s Motion for Determination of Tax Liability to Washakie County, to the State of Wyoming, and to the City and County of Denver; (2) a Motion for Relief from Stay and a Motion to Dismiss or Convert filed by Washakie County, Wyoming (“County”). Central to resolution of the issues herein is a determinatio...
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MEMORANDUM ON ALLOWANCE OF MOTION FOR SUMMARY JUDGMENT IMF Sales Associates (“IMF”) filed a five-count complaint against Racal-Vadic Information Systems, Inc.1 (“Racal”). IMF has since withdrawn Count I (preliminary injunction) and Count III (contempt) of its complaint. • Accordingly, the remaining causes of action are breach of contract (Count II), unfair trade practices (Count IV), and avoidanc...
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MEMORANDUM RE: CREDIT CARD CHARGEBACKS The debtor, Standard Financial Management Company, d/b/a New England Rare Coin Galleries (NERCG) sold rare coins through its store as well as over the telephone. Payments for the rare coins were made by cash, check, credit cards or wire transfers. On February 13, 1987, the Federal District Court of Massachusetts, at a hearing on the complaint of the ...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT These summary judgment motions involve two distinct disputes among three parties arising from their respective pre-bankruptcy dealings with the now-defunct debtor, Commercial Reprographics. A secured creditor filed this adversary proceeding claiming priority over another secured creditor for the same collateral, an account, and demanding payment from ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration is a Complaint filed by Barnett Bank of Polk County (Plaintiff), the Plaintiff in the above-styled adversary proceeding. The Complaint seeks a determination by this Court that a debt allegedly owing by the Defendants, Arturo and Rosa Perez (Debtors), to the Plaintiff, should b...
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*683 MEMORANDUM DECISION ON MOTION FOR RECONSIDERATION AND CLARIFICATION OF ORDER APPOINTING ATTORNEY FOR DEBTOR The Bankruptcy Code requires the court to approve employment, including terms and conditions, of professionals to represent the estate, and their fees can be paid out of estate funds only upon court order. 11 U.S.C. §§ 327-331. These duties are central to the integrity...
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MEMORANDUM OPINION AND ORDER GRANTING EDWARD ZAAGMAN’S COUNTER-MOTION FOR SUMMARY JUDGMENT AND DENYING THE TRUSTEE’S MOTION FOR SUMMARY JUDGMENT This matter is now before the Court upon the Trustee’s Motion for Summary Judgment as to Defendant Edward Zaagman, land contract vendor, and Mr. Zaagman’s Cross Motion for Summary Judgment against the Trustee. The Court has jurisdiction over this proceed...
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ORDER ON OBJECTION TO CLAIM THIS IS a Chapter 11 reorganization case and this is the next chapter of the ongoing war between Captran Creditors Trust (Debtor) and Captran Resort International (CRI), one of the petitioning creditors who joined in their bankruptcy case filed by the original petitioning creditor. In the present instance, the controversy relates to the allowability of a claim filed by ...
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MEMORANDUM OF DECISION This case began on May 8, 1985, when separate involuntary petitions under Chapter 7 were filed against each of the individual debtors. Relief was subsequently ordered by the court and, pursuant to Bankruptcy Rule 1015(b), these estates are being jointly administered. The matter is now before the court on the Trustee’s motion to substantively consolidate the est...
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OPINION The debtor in this Chapter 13 proceeding is seeking to avoid various judicial liens *281 filed against the home owned by him and his wife. Certain liens he seeks to avoid under § 522(f) as impairing his exemption, others he claims are void because obtained post-petition in violation of § 362’s automatic stay. 1 None of the lien creditors has appeared to o...
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OPINION Before the Court is a motion by Prudential Bache Securities Inc. (“Prudential”) to convert this Chapter 11 proceeding to Chapter 7. Prudential initially moved in the alternative to convert or dismiss, but during the hearing withdrew the motion to dismiss. The United States Trustee supported Prudential’s motion but considered dismissal the better alternative on the theory that this...
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MEMORANDUM OF DECISION This matter is before the court to consider confirmation of the debtors’ Chapter 12 plans, together with objections thereto raised by the Chapter 12 Trustee. With the exception of these objections, any other challenges to confirmation have been resolved. Since each of these cases involves the identical issue, the court has elected to address them with a single decision. T...
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*761ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 11 case and the immediate matter under consideration involves a claim set forth in the Amended Complaint filed by Industrial Distribution Services, Inc. (IDS), the Debtor in the above-captioned Chapter 11 case. The Amended Complaint originally sounded in five counts and named as Defendants, Grinnell Corporation, Inc. (Grinnell) and Federal...
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ORDER DISALLOWING CLAIM This matter is before the court on claimant Scherry Harrah’s motion to require debtor to return an oil painting by Goff, named “Dead Man’s Hand,” which Harrah alleges was on loan to Hobson. Hobson contends the painting was a gift to him from Harrah. The motion is really a claim against the estate and the court will treat debtor’s opposition to the motion as an objection to ...
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OPINION AND ORDER On November 10, 1988, this Court held a hearing on the debtor’s objection to Columbia Savings and Loan Association’s (Columbia’s) secured claim. At the same time, a hearing on the debtor’s plan confirmation was also held in which Columbia filed an objection to confirmation of the proposed plan. These matters were taken under advisement. This Court has duly considered the...
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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 a Complaint filed by George Hadley (Trustee), against Michael Shane O’Neill (Debtor), Helen DeFrance, the Debtor’s grandmother and Shannon Schriedel, the Debtor’s sister. Through his Complaint, the Trustee seeks a determination in Count I that transfers of certa...
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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 a complaint seeking a determination by this Court that certain debts allegedly owed by William F. Casler, Sr. (Debtor), to Frances L. Casler, Plaintiff (Plaintiff), should be determined by this Court to be nondis-chargeable pursuant to § 523(a)(5) of the Bankrup...
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ORDER ON MOTION TO ASSUME OR REJECT EXECUTORY CONTRACT THIS IS a Chapter 11 case and the immediate matter under consideration is a “Motion to Fix Time to Assume or Reject Publication Agreement and to Condition Continued Collections of Royalties upon Granting of Adequate Protection.” The Motion was filed by Dr. Herbert L. Gravitz (Gravitz). Gravitz seeks an order from this Court fixing the...
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MEMORANDUM OF DECISION Creditors seek relief from the automatic stay and release of property not belonging to the estate based on a trust established by the Perishable Agricultural Commodities Act (“PACA”). Creditors claim the PACA trust assets are not part of the bankruptcy estate and are subject to distribution to trust beneficiaries outside the distribution contemplated in bankruptcy. ...
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*618 MEMORANDUM OPINION Conquest, War, Famine, Death — these the Book of Revelations tells us are the Four Horsemen of Apocalypse, no matter what that later apostle known to the sporting gentry as Grantland Rice wrote some nineteen centuries later. Yet in the arena of consumer bankruptcy, neither prophet was right. Here and now those dread specters are: Divorce, Illness, Unemployment, and Ove...
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MEMORANDUM DECISION Leslie Raymond Gonsor filed his Chapter 7 petition February 19, 1988. The only debt scheduled was an $11,050.00 liability owed to Kirby Oswald. The obligation arises out of a South Dakota state court judgment for $8,487.00 plus interest. The judgment followed a trial to the state court wherein Gonsor was adjudged liable for an assault and battery on Oswald. Accord...
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MEMORANDUM-OPINION The primary issue left to be decided in this case is whether Bankruptcy Code Section 550 is applicable to prevent a trustee, under subsection (b), from recovering property from a secondary transferee who takes for value, in good faith and without knowledge of the transfer avoided. After having reviewed the facts of this case, as well as the opinions of both our Court and the Dis...
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MEMORANDUM-OPINION This matter came before the Court for a valuation/confirmation hearing on December 16, 1987. At that time, the court, having been advised of a dispute between the debtor and Farmers Bank and Trust (hereinafter referred to as the “creditor”) ordered the parties to submit briefs and responses to the court on a valuation issue. Specifically the issue to be decided is whether a d...
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MEMORANDUM-OPINION This case is before the Court on the plaintiffs motion for summary judgment. The parties have filed memorandum in support of their respective positions, which have been reviewed by this Court. Because no genuine issues of material fact exist, the case is ripe for summary judgment. Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir.1965); Bailey v. Americ...
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OPINION-ORDER This case is before the Court on the objection of the Trustee to the claim of Public Finance Corporation (hereinafter “Public Finance”) in the amount of $3,205.95, as a secured claim on the ground that prior to the filing of the petition, the debtor sold the property to a third party. For the following reasons, we sustain the Trustee’s objection and disallow the claim as secured. ...
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OPINION-ORDER This matter is before the Court on the debtor’s motion to avoid involuntary trans *465 fers to creditors pursuant to Section 522(g) of the Bankruptcy Act. Counsel for the Debtor has cited us to the case of In re Harville, 60 B.R. 188 (Bkrtcy.W.D.Ky. 1986) which we feel is dispositive of the issue at hand. Simply put, the facts are that the debtor filed a Chapter 7 petition o...
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MEMORANDUM-OPINION This matter is before the Court upon the debtor’s objection to the Amended Proof of Claim of Sovran Bank/Kentucky, Inc. (“Sovran”). The debtor objects to Sovran’s assertion of a security interest in checking account deposits totalling $18,190.04. Sov-ran claims it’s entitled to these deposits since they constitute “proceeds” from the sale of inventory in which Sovran allegedl...
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OPINION-ORDER This case is before the Court on the debtors’ motion to avoid a non-possessory, nonpurchase-money security interest of a creditor, Money Incorporated, in household *88 goods or furnishings, pursuant to 11 U.S.C., § 522(f). Additionally, the debtor has moved the Court pursuant to § 722 of the Code, to redeem personal property from a lien securing a dischargeable consumer debt. ...
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MEMORANDUM-OPINION This case is before the Court on the Trustee’s motion for summary judgment. Although the Trustee has served the defendant-debtor with this motion and the arguments offered in support thereof, the defendant has not filed any response or opposition. The Court has reviewed the motion as well as the entire record in this case. Because no genuine issues of material fact exist, the...
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MEMORANDUM-OPINION This case is before the Court on the Plaintiffs’ Motion for Summary Judgment pursuant to Fed.R.Civ.Pro. 56(b) and Fed. *474R.Bank.Pro. 7056. We have reviewed the parties’ Memorandum in support of and in opposition to the Motion and, for the reasons set forth below, conclude that it must be OVERRULED. A brief summary of the facts giving rise to this adversary proceeding is requir...
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MEMORANDUM OPINION This Chapter 7 adversary proceeding is before the court on the parties’ crossmo-tions for summary judgment, pursuant to Fed.R.Civ.Pro. 56 and Fed.R.Bankr.Pro. 7056. In overruling the parties’ prior crossmotions for summary, we held, by order and memorandum opinion entered January 12, 1988, that a previous proceeding conducted in United States District Court under the pr...
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MEMORANDUM-OPINION This matter is before the Court on the creditor, Curtis Homes, Inc.’s, objection to confirmation of the debtor’s proposed Chapter 13 plan on the basis that the plan violates the provisions of 11 U.S.C. § 1322(b)(2). The basic facts are as follows. In October of 1984, Curtis Homes, Inc. (“Curtis Homes”) agreed to build a home for Donald and Saundra Dochniak (“debtors”) and, ...
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MEMORANDUM OPINION This matter is before the Court on the motion of the Creditor, Richard Shouse (hereinafter, “Creditor”) for Relief from the Automatic Stay and/or in the alternative, for Adequate Protection. This Court having reviewed the parties’ memorandum in support of their respective positions and being otherwise sufficiently advised, concludes that the Motion for Relief from the Stay and/...
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MEMORANDUM OPINION This Chapter 11 adversary proceeding is before the court on the plaintiff’s motion for partial summary judgment and upon the defendant's motion for summary judgment pursuant to Fed.R.Civ.Pro. 56 and Fed.R.Bankr.Pro. 7056. The parties have filed, and we have reviewed, well-researched memoranda in support of their respective positions. For the reasons set forth below, we ...
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MEMORANDUM-OPINION At issue in both of these cases is whether the liquidation test required under 11 U.S. C. § 1225(a)(4) should be applied as of the date of the bankruptcy filing or the date of confirmation of the plan. In the first case, the debtors, J.D. Perdue, Jr. and Clara Jane Perdue filed their Chapter 12 petition on April 21, 1987. Nearly 15 months after the filing, the debtors’ case...
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MEMORANDUM-OPINION/ORDER This matter came on for hearing on April 5, 1988, in Covington, Kentucky, on the motion of plaintiff, Kentucky Natural Resources and Environmental Protection Cabinet, for injunctive relief. On July 20, 1988, the Cabinet filed its adversary proceeding against the debtor, Sanico, Inc., Charles L.J. Freihofer, Interim Trustee, and James P. Breslin, seeking (a) a mandatory inj...
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MEMORANDUM OPINION This Adversary Proceeding is before the Court on the parties’ cross-motions for Summary Judgment pursuant to Fed.R.Civ. Pro. 56 and Fed.R.Bankr.Pro. 7056. Briefs in support of the parties’ respective positions have been filed and reviewed. For the reasons set forth below, we overrule the Plaintiff’s Motion for Summary Judgment and sustain the Defendant’s Motion for Summ...
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MEMORANDUM OF OPINION AND ORDER Herein, the Chapter 7 Trustee, Richard B. Ginley (Trustee) seeks a turnover of certain nonexempt funds from Edward W. Mansuy (Debtor). The matter was heard with due notice having been provided to all entitled parties. Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions: This is a core matter under provisions of 28 U.S...
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MEMORANDUM-OPINION This adversary proceeding is before the Court on the plaintiffs’ motion for summary judgment and the defendant’s motion to dismiss. The Court having reviewed the memoranda filed by the parties and for the reasons set forth below, concludes that the plaintiffs’ motion for summary judgment be sustained and the defendant’s motion to dismiss be overruled. A brief summa...
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REPORT TO THE U.S. DISTRICT COURT AND RECOMMENDATION FOR REMAND PURSUANT TO RULE 9027(e) OF THE RULES OF BANKRUPTCY PROCEDURE Now before the Court is a “Motion to Abstain or Withdrawal” filed in separate adversary proceeding No. 87-572 in the above referenced Chapter 11 reorganization pursuant to Title 11 of the U.S. Code. The underlying matter is a removed action which had been pending i...
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OPINION-ORDER This matter comes before the Court on the debtors’ motion for the Court to order Kentucky Farm Bureau Mutual Insurance Company (hereinafter “Farm Bureau”) to reinstate insurance coverage on the debtors’ real estate. A hearing on the matter was held on February 29, 1988, and the Court having considered the respective positions of the parties, ordered the parties to file simultaneous b...
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MEMORANDUM OF DECISION There is before the court, on its own motion pursuant to 11 U.S.C. § 105(a), the review of the claim filed by the United States Trustee on January 22, 1988. The essence of the $6,000 claim is set forth in paragraph 2: 2. The debtor was, on the date of the conversion of this case, indebted to the UNITED STATES TRUSTEE, and still is indebted in the sum of at leas...
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ORDER AND NOW, this 19th day of October, 1988, upon consideration of the Plaintiff’s Supplemental Exhibits, which counsel agreed could be added to the record of this case at a hearing on October 12, 1988, at which we indicated, in our Order of September 7, 1988, we would allow supplementation of the record upon remand of this proceeding by the District Court in 93 B.R. 342, (E.D.Pa.1988), it is...
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MEMORANDUM AND ORDER This matter is before the Court on the Motion to Dismiss of Michael G. Coan, the Debtor (“Debtor”). The Debtor seeks dismissal of a complaint brought by Cynthia Crane (“Crane”) for a declaration regarding the validity of a mechanic’s lien. The motion to Dismiss is premised on the Debt- or’s assertion that this Court lacks subject matter jurisdiction over this proceeding. In...
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MEMORANDUM-OPINION ORDER This matter is before the Court on the Motion of the Creditor, Farmers Bank of Hardinsburg (“Farmers Bank”), for relief from the stay. The Court, upon the Debtors’ objections to the Motion held a hearing on the matter on March 7, 1988 and ordered briefs to be filed by both parties. Having now reviewed the respective positions of the parties, this Court overrules the Cre...
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MEMORANDUM OPINION AND ORDER The Official Committee of Senior Unsecured Creditors (the “committee”) moves the court for an order removing Dr. Gabriel Elias from the committee. Prior to filing the motion, the committee requested that the United States trustee remove Dr. *59 Elias. In a written response, the United States trustee declined to remove him. The court conducted an e...
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MEMORANDUM OPINION This matter came on for a hearing upon the complaint of the Chapter 11 debtor, Richmond Paramedical Services, Inc., (“RPS” or “the Debtor”) seeking to enjoin the United States Department of Health and Human Services (“HHS”) from excluding RPS from the Medicare/Medicaid programs. Based upon the arguments of counsel and a review of competing bodies of law, the Court concludes t...
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MEMORANDUM OPINION ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION BASED ON ENTIRETIES LAW The debtor is a principal stockholder and the president of Haddix Lumber and Supply Co., a Michigan firm which is the debt- or in a Chapter 11 case pending in this Court. Mr. Oberlies and his wife accommodated Haddix Lumber by jointly guaranteeing the indebtedness owed by Haddix Lumber to Cott...
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MEMORANDUM OF DECISION AND ORDER RE: TRUSTEE’S APPLICATION TO DETERMINE TAX LIABILITY The matter before the court is the trustee’s application for a determination of his tax liability to the Internal Revenue Service and the State of Iowa, Department of Revenue and Finance. Hearing was held in Cedar Rapids, Iowa on June 8, 1988. Trustee Michael H. Irvine appeared on his beha...
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DECISION ON APPLICATIONS FOR ATTORNEY FEES These are converted Chapter 11 cases in which, from the outset, there was constant pressure and activity by the first secured creditor, Mellon Bank, to obtain relief from the automatic stay, and to foreclose upon its security interest in a fishing vessel owned by the debtors prior to these filings. Before us for consideration are application...
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MOTION TO CONVERT DEBTOR FROM CHAPTER 13 TO CHAPTER 7 David Feldman, the holder of a disputed unsecured claim for $122,064 against the debtor, Helene Kaufman, has moved to reconvert the debtor’s Chapter 13 case back *320 to Chapter 7 of the Bankruptcy Code on the ground that the debtor is not eligible to be a Chapter 13 debtor in accordance with 11 U.S.C. § 109(e) because her...
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MOTION FOR TRANSFER OF VENUE Union Federal Savings Bank (“Union”) the holder of a first mortgage lien on a Kentucky apartment complex owned by the debtor. Greenhaven Associates, Ltd. has joined with Paul Hatfield and Donald B. Cox, the holders of a second mortgage lien on the Kentucky property, in a motion pursuant to 28 U.S.C. § 1412 and Bankruptcy Rule 1014(a) to transfer venue of this Chapte...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court is called upon to decide whether, when a husband and wife join in a Chapter 7 petition under Title 11, either spouse alone may claim as exempt the entire equity interest in the couple’s homestead owned by them as tenants by the entirety. FACTS On June 9, 1988, Patrick Dennis and Debra Catherine Flinn (...
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DECISION PROCEDURE This case came before the court upon the motion of Federal National Mortgage Association (“Fannie Mae”), first mortgage holder of the real estate known as Dutchman’s Creek Apartments, for relief from the automatic stay and for dismissal of the case for bad faith filing. Dutchman’s Creek Apartments is the sole asset of the debtor. The debtor objected to the relief r...
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MEMORANDUM OPINION Summary In this case the Court finds that defendants, which are corporations under common control, are solidarily liable to the estate for petroleum products allegedly purchased by only one of them; that an alleged triangular setoff, one day prior to the filing of the Chapter 11 petition for relief, by which one of the corporations attempted to eliminate its de...
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MEMORANDUM OPINION AND ORDER The matter before the Court is whether the adversary complaint in this proceeding is time-barred. Trial limited to this issue was held on September 23,1988. Considerable evidence and testimony were taken, but there were few significant conflicts between the parties as to the salient facts, set forth below. The complaint objects to discharge based upon an ...
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MEMORANDUM OF DECISION In October 1979, plaintiff and defendant executed a written agreement in contemplation of their divorce, providing, among other things, that they would share equally their children’s college expenses (the “college expense agreement”). At that time, their eldest child was only thirteen. In November 1979, a divorce decree was entered. Somewhat later in November 1979, ...
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MEMORANDUM-DECISION AND ORDER Victor T. Ehre, Sr., the Trustee in Reorganization for the Estate of Adirondack Railway Corporation (“Debtor”), Plaintiff, has moved this Court for an order, pursuant to Bankruptcy Rule (“Bankr.R.”) 9019(a), approving the Application for Stipulation of Settlement and Agreement for Sale, Assignment or Rejection of Lease and authorizing the Trustee to execute all docum...
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MEMORANDUM-DECISION AND ORDER The Court considers herein Trustee’s Application for Interim Allowance (“Trustee’s Application”) and Attorneys’ Application for Interim Compensation (“Attorneys’ Application”). The former Application was filed by Harold P. Goldberg, Esq., as Trustee (“Trustee”) on April 11, 1988, while the latter Application was filed by Goldberg, Harding & Talev, P.C. (“Gold...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on the objections of the Trustee and the Utica Teachers Federal Credit Union (“UTFCU” or the “Union”) to the claimed exemptions of Charles L. Hill (“Debtor”), pursuant to § 522 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1988) (“Code”), §§ 282 and 283 of the New Yor...
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MEMORANDUM OPINION AND ORDER WTHW Investment Builders complains that the debtor Jossee Patterson Dias should not be granted a discharge because, inter alia, he failed to keep certain recorded information from which his financial condition and business transactions might be ascertained, 11 U.S.C. § 727(a)(3), he transferred or concealed property within one year of the filing of ...
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OPINION AND ORDER ON MOTION FOR TURNOVER I. Preliminary Statement This contested matter presents the issue of whether a state court-appointed receiver should be required to turn over operations of certain oil and gas wells to the debtor in possession pursuant to 11 U.S.C. § 543. Resolution of this question requires an interpretation of the term “custodian” contained in 11 U.S...
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*42 MEMORANDUM OPINION AND ORDER Came on for consideration the motion filed by the debtor, Georgia Mae Eiland, to avoid a nonpossessory, nonpurchase-money security interest held by Tower Loan of Mississippi, Inc., hereinafter referred to as Tower Loan; all parties being represented before the Court by their respective attorneys of record; and the Court having heard and considered same, hereby...
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OPINION Came on for consideration the motion for relief from the automatic stay filed by Len-wood Shortridge, hereinafter referred to as movant or Shortridge; response to said motion having been filed by the above captioned debtors; all parties being represented before the Court by their respective attorneys of record; and the Court having heard and considered same hereby finds as follows...
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94 B.R. 903 (1988) In re Jimmy Wayne McLEMORE. Earl BERRY, Plaintiff, v. Jimmy Wayne McLEMORE, Defendant/Debtor. Bankruptcy No. 86-01333-BRC-WES, Adv. No. 86-0185-BRC-WES. United States Bankruptcy Court, N.D. Mississippi. December 30, 1988. *904 Stephen P. Livingston, New Albany, Miss., for Jimmy McLemore. Jim Waide, Tupelo, Miss., for Earl Berry. OPINION DAVID W. HOUSTON, III, Bankruptcy Judge....
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*899 OPINION This matter comes before the Court on the complaint to determine the validity and/or priority of liens filed by Jacob C. Pongetti, trustee for the estate of James Terence Strickland and Cynthia Jeanne Strickland, d/b/a Strickland Builders Supply, hereinafter referred to as plaintiff or trustee, against Deposit Guaranty National Bank, f/k/a First Citizens Bank, herein...
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OPINION Came on for consideration the complaint to recover garnished wages filed by the debtor, Herman Haynes, Jr., hereinafter referred to as debtor or plaintiff; answer to said complaint and counter-claim against the plaintiff and cross-claim against the co-defendants, First United Bank of Mississippi and Taylor Machine Works, Inc., having been filed by the defendant/trustee, Jacob C. Pongetti; ...
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OPINION On consideration of the motion for summary judgment filed by the plaintiff, State *415 Farm Fire and Casualty Company, hereinafter referred to as plaintiff or State Farm; response to said motion having been filed by Melvin Lee Dunn, hereinafter referred to as debtor or defendant; and the Court having reviewed and considered same, hereby finds and adjudicates as follow...
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ORDER ON AIRLINE REPORTING CORPORATION’S MOTION FOR REHEARING AND CLARIFICATION OF ORDER ON MOTION FOR SUMMARY JUDGMENT This cause came on for hearing upon a Motion for Rehearing and Clarification of Order on Motion for Summary Judgment [72 B.R. 380] filed by Airline Reporting Corporation (ARC), the plaintiff in the above styled adversary proceeding. ARC seeks a rehearing of this Court’s Order den...
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MEMORANDUM DECISION ON MOTION TO CHANGE VENUE We have before us 1 Bent’s motion to change the venue of his case from the District of Vermont to the District of Massachusetts. Because we find that the interests of justice would best be served by transferring these proceedings to the District of Massachusetts, the Debtor’s motion is granted. Bent commenced his case on March 7, 1988 as a volun...
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MEMORANDUM DECISION DENYING MOTION TO DISMISS This matter 1 is before the Court on Cousineau’s motion to dismiss for failure to state a claim under Rules of Practice and Procedure in Bankruptcy Rule 7012(b)(6). 2 The Petersons are farmers who filed for relief in bankruptcy under Chapter 12, Title 11 of the U.S. Bankruptcy Code, 11 U.S.C. § 101, et seq., on November 17, 1987. This motion c...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER DENYING CONFIRMATION OF PROPOSED PLAN OF DEBTOR AND CONFIRMING PLAN OF NATIONWIDE LIFE INSURANCE COMPANY On December 19, 1988, the general issue of confirmation vel non came on before the court for hearing, at which time the court narrowed the particular issue to be heard and determined to that of whether the debtor’s proposed plan...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECREE DECLARING THE INDEBTEDNESS OF THE DEFENDANTS TO PLAINTIFF IN SUMS TO BE DETERMINED IN MECHANICS’ AND MATERIAL-MENS’ LIENS ACTIONS TO BE NONDISCHARGEABLE IN BANKRUPTCY AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SAME SUM FROM THE DEFENDANT The plaintiff in this action sues for a decree of nondischargeability of the defendants...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT CONDITIONALLY DENYING COMPLAINT OBJECTING TO DISCHARGE Plaintiffs seek the denial of the debtor Michael B. Mead’s discharge in bankruptcy on several grounds, including chiefly concealment of assets and failure to schedule *682 assets. See §§ 727(a)(3) and (a)(4)(A) of the Bankruptcy Code. The action came on before the co...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL ORDER DENYING RESPONDENTS’ OBJECTION TO ABANDONMENT OF C.C.C. CERTIFICATES TO INTERVENOR The objection of the respondents to the trustee’s proposed abandonment of C.C.C. certificates to the intervenor is now before the court for resolution. The certificates are in the amount of $2,189.68. The parties have stipulated that: “the sole issue to be decided...
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MEMORANDUM OF DECISION This matter came before the Court on the Plaintiff’s Motion to Determine Secured Status and Objection to Claim of Exemptions. The issue involved is whether an above-ground swimming pool is a fixture. After a trial and consideration of the applicable law, it is the opinion of the Court that the above-ground pool is not a fixture and therefore not subject to the mortgage with...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This bankruptcy case comes before the Court on February 1, 1988, on the Complaint of WORLD WIDE BEARING AND AUTOMOTIVE PARTS, INC. (“WORLD WIDE”) to determine the dischargeability of certain debts incurred by the Debtor in this action, BETTY CAROL SPRINGER (“SPRINGER”). WORLD WIDE initially filed its lawsuit against SPRINGER in the Circuit Court for the...
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MEMORANDUM OPINION This chapter 7 case is presently before the court upon the plaintiff’s Complaint for Injunction, which requests that the defendant, Michael Johnson, Esquire, the Merrimack County Attorney for the State of New Hampshire, be permanently enjoined from prosecuting the plaintiff on a citation for criminal contempt. The defendant has filed an Answer, and both parties have fil...
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MEMORANDUM OPINION AND RECOMMENDATION TO DISTRICT COURT SUGGESTING WITHDRAWAL OF REFERENCE OF ADVERSARY PROCEEDING: JURISDICTION AND JURY TRIAL This adversary proceeding presents unique questions of the jurisdiction and procedural authority of the Bankruptcy Court for this District, and the Court has sua sponte examined whether the issues presented in this adversary proceeding ...
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Memorandum and Order Re: Valuation of Debtors’ Property Initial confirmation of Rex L. and Mildred J. Felten’s (Debtors) Chapter 12 Plan of Reorganization came on for hearing. Pursuant to the confirmation procedures established in this District, the initial confirmation hearing was also conducted as a hearing on valuation. At issue in this hearing is the value of real estate which secures...
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MEMORANDUM AND ORDER Granting the Avoidance of Liens Under 11 U.S.C. § 522(f)(2)(B) On June 30, 1987, this Court avoided a lien on Debtor’s 1983 Nissan pick-up truck, pursuant to 11 U.S.C. § 522(f)(2)(B). The creditor appealed that decision to the United States District Court for the Northern District of Iowa. The District Court noted that the Bankruptcy Court for the Southern Di...
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MEMORANDUM AND ORDERS Re: Motion to Convert A Motion to Convert filed by Norwest Bank of Sioux City, N.A. (Norwest Bank) came on for hearing on November 3, 1988. The Motion to Convert has been joined in by various other creditors. This Court now enters its Finding of Fact, Conclusions of Law and Order pursuant to Fed.R.Bankr.P. 7052. BACKGROUND Norwest Bank has filed a Motion to Convert alleging t...
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DECISION and ORDER ON MOTION TO DISMISS In this adversary proceeding, plaintiff is a creditor of defendants. Defendants are debtors in a related Chapter 7 bankruptcy case. The complaint states a claim for denial of discharge under 11 U.S.C. § 727. The complaint was stamped in by the clerk’s office on September 26, 1988. Defendants have moved for dismissal of the complaint on grounds that it was no...
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ORDER DENYING MOTION TO REOPEN CASE This matter is before the Court upon a motion of Bank One, Columbus, N.A., seeking to have this Court reopen this case and rescind and reissue the debtors’ discharge for the purpose of validating certain reaffirmation agreements. This Chapter 7 bankruptcy case was filed on March 14, 1988. On April 21, 1988 a no-asset report was filed by the trustee and on J...
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MEMORANDUM DECISION Linda E. Sinnard, the debtor in this chapter 7 case, has brought a motion under section 522(f)(1) to avoid a lien on her homestead held by the Key City Bank & Trust Company (the “Bank”). After a hearing was held on the debtor’s motion on September 8, 1988, the matter was taken under advisement and the parties given leave to brief the issues. The following facts ar...
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OPINION AND ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN AND DISMISSING CASE This matter is before the Court upon the requested confirmation of a Chapter 13 plan proposed by debtor Catherine Ross, and upon this Court’s independent obligation to find that all tests for confirmation have been met. The plan proposed by this debtor calls for payments of $805.00 each month and full repayment of a...
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OPINION AND ORDER ON COUNTS I & II OF COMPLAINT, MOTION TO COMPEL ASSUMPTION OR REJECTION OF LEASE AND RENTAL AGREEMENTS AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY AND FOR ADEQUATE PROTECTION This matter is before the Court after trial of Counts I and II of this Complaint combined with hearing of related portions of a Motion to Compel Assumption or Rejection of Lease and Rental Agreeme...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON COMPLAINT FOR DECLARATORY JUDGMENT This adversary proceeding, brought by Barry M. Hill, an attorney practicing in the state of West Virginia, seeks to have this Court determine the validity of an attorney’s charging lien against defendant Charles Anderson’s discharge in bankruptcy. Anderson answered the complaint and the matter was heard in Steubenvill...
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OPINION AND ORDER ON COUNTS I & II OF COMPLAINT AND ON MOTIONS TO COMPEL ASSUMPTION OR REJECTION OF LEASE AND RENTAL AGREEMENTS This matter is before the Court after trial of Counts I and II of this Complaint, combined with hearing of the related portions of two Motions to Compel Assumption or Rejection of Lease and Rental Agree- *955 mente (the “Motions”). Cecil I. Walker Ma...
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ORDER ON OBJECTION TO CONFIRMATION I.Jurisdiction This matter is before the Court on an objection to confirmation of the Chapter 12 plan proposed by Richard C. Kratz and Deborah E. Kratz. The objection to confirmation, filed by Robert D. Oliver and Elda M. Oliver, is premised upon 11 U.S.C. §§ 1225(a)(1) and 365(d)(2). A hearing on this matter was conducted by the Court on July 25, 1...
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ORDER ON MOTION TO HOLD CHIPPE-WILL CONDOMINIUM UNIT OWNERS’ ASSOCIATION IN CIVIL CONTEMPT This matter is before the Court after reopening of this case to hear a motion filed on behalf of debtor Carol Bolger Montoya, seeking a finding of contempt against the Chippewill Condominium Unit Owners’ Association (“Chippewill”). The motion was opposed by Chippewill and was heard by the Court. The Cou...
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OPINION The matter before the court arises from a complaint filed on September 9, 1987 by Iris P. Christensen, the debtor herein (“debtor”), against the State of New Jersey, Division of Motor Vehicles (“DMV”) seeking a determination that a surcharge imposed upon the debtor by the DMV pursuant to N.J.S.A. 17:29A-35(b)(2) for viola *888 tion of N.J.S.A. 39:4-50.4a is a discharg...
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MEMORANDUM OPINION This matter comes before the Court on a motion for summary judgment filed by the plaintiffs Joseph Raitano (“Raitano”) and Donald Farrell (“Farrell”). For the reasons set forth herein, the Court having considered all the pleadings and exhibits filed, does hereby grant the motion for summary judgment. I.JURISDICTION AND PROCEDURE The Court has jurisdiction to e...
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ORDER This matter is before the Court on the parties’ cross motions for summary judgment. The Chapter 7 case commenced September 5,1987. This adversary proceeding was filed September 24, 1987. 1 The complaint alleges plaintiffs’ claim, which is based on attorney’s fees ordered to be paid pursuant to an order entered in a paternity action, is nondischargeable pursuant to 11 U.S.C. § 523(a)(5)....
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MEMORANDUM OF DECISION This matter is before the court following the trial of the issues raised by the Trust *370 ee’s complaint, filed pursuant to 11 U.S.C. § 547, to avoid allegedly preferential transfers made by the debtor to the Defendants. Following the submission of the evidence and the arguments of counsel, the matter was taken under advisement. FACTS AND ISSUES The facts surroundi...
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OPINION AND ORDER ON MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION I. Preliminary Statement This matter is before the Court upon the Motion For A Temporary Restraining Order and Preliminary Injunction filed by Shelly’s, Inc. (“Shelly’s”), the debtor-in-possession in Case No. 2-88-03103, and the plaintiff in this adversary proceeding. The Court has jurisdi...
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This cause came before the Court on the Complaint filed by the Plaintiffs, Peter and Ann Perich, in which they ask the Court to find the Debtors’ obligation to them to be nondischargeable pursuant to 11 U.S.C. Sec. 523(a)(2). FACTS The Plaintiffs operated a successful and established photography business in Warren, Ohio, known as “Perich Studio Photography.” After approximately 37 years of operati...
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. The debtor filed a voluntary petition under the provisions of Chapter 11 of Title 11 U.S.C. on October 11, 1985. The case was converted to Chapter 7 on November 15, 1985, and William E. Lawson, Esq., was appointed trustee. This adversary proceeding, seeking to recover a series of payments by the debtor to the defendant, Raritan River Steel Corporation (Raritan), was initiated by the filing of a ...
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ORDER This cause came before the Court on the submission by the parties on the pleadings and exhibits thereto to determine the dis-chargeability of certain obligations of the Debtor to the Plaintiff arising out of state court divorce proceedings. The Plaintiff alleges that the Debtor should not be discharged from his obligations to pay the debts set forth in paragraph 3 of the complaint. The Debt...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER FROM THE DEFENDANTS IN ADVERSARY PROCEEDING NO. 82-882 THE SUM OF $16,276.84 These are adversary proceedings brought by the plaintiff trustee in bankruptcy several years ago for the purpose of recovering certain monies from the defendants as prohibited transfers. A judgment was formerly rendered by former Ban...
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MEMORANDUM DECISION These two adversary complaints, filed by different creditors represented by different counsel, opposed this debtor’s discharge and, alternatively, sought exception from discharge. Both were scheduled to be tried November 1. At trial, the plaintiff in No. 88-0467 voluntarily dismissed his counts opposing discharge. Because denial of discharge moots exception from discharge,...
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OPINION AND ORDER There came to be heard the Bank of Mississippi’s Complaint to Determine the Extent, Validity and Priority of Lien and Motion to Lift the Stay or Provide Adequate Protection, the counterclaim of the debtors against the Bank of Mississippi, and the debtors’ motion to strike the brief filed by the Bank of Mississippi. Having considered the evidence, both oral and documentary, the...
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MEMORANDUM DECISION The debtor’s ex-wife seeks exception from discharge under 11 U.S.C. § 523(a)(5). The debtor has answered and the matter was tried on November 29. The debtor filed his bankruptcy petition on September 21, 1988. The marriage was dissolved by a final judgment dated June 10, 1988. (Ex. 1). The judgment provided that child support payments for the minor children (...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW The identical issue is presented in all four of the above-captioned bankruptcy cases. The debtors by their attorney, L.R. Reinstra, have brought motions pursuant to 11 U.S.C. §§ 502 and 505 requesting the Court to determine the status of real estate *624 tax penalties in their respective Chapter 11 bankruptcy cases. ...
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OPINION' These appeals arise out of various adversary proceedings brought under 11 U.S.C. § 549 by the trustee in the Chapter 7 proceedings below, as well as a complaint objecting to the discharge of the debtor brought pursuant to § 727. The adversary proceedings were consolidated for trial and tried together. Although involving numerous parties, the issues from each of the above appeals are re...
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ORDER On December 1, 1986, Roderick D. Reed (debtor-in-possession) filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. On December 11, 1986, an order was entered authorizing the employment of the law firm of Wright, Lindsey & Jennings as attorney for the debtor-in-possession. On October 19, 1987, an order was entered substituting ...
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MEMORANDUM OF DECISION Debtor, by verified complaint, seeks to enjoin Casco Northern Bank, N.A., (Casco), as trustee under an Indenture of Trust, from drawing on a Letter of Credit issued by Rhode Island Hospital Trust (RIHT) in favor of Casco. The letter of credit was issued upon request of the Debtor to assure payment of principal and interest under certain Industrial Revenue Bonds issu...
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ORDER On March 23, 1988, Tien Nguyen and Phung Dang, husband and wife, filed a voluntary petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. An objection to confirmation of the plan was filed by Worthen Bank & Trust Company, N.A. (Worthen), and a confirmation hearing was held on August 5, 1988. The proceeding before the Court is a core proceeding pursuant ...
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MEMORANDUM OPINION AND ORDER The Court is asked to decide whether it should grant .the Motion to lift stay filed by land contract vendor Mrs. Barbara Gilbert. Mrs. Gilbert seeks relief from 11 U.S.C. § 362(a), to the extent the automatic stay is in effect, in order that she may proceed against the Debtors on claims which Mrs. Gilbert alleges arose after October 22, 1987, the date of entry of th...
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OPINION First Bank of California (appellant) brings this appeal from the bankruptcy court’s granting of summary judgment in favor of Robert and Julia Griffin, husband and wife (appellees). The essential question presented involves who should bear the risk of loss caused by a forged and fraudulently recorded title document. Coordinate with this issue is whether the grant of summary judgmen...
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OPINION Harvey Petty, Sr. and Betty Petty appeal the bankruptcy court’s grant of summary judgment allowing the trustee to recover property transferred from the debtor to the Pettys as a preference under 11 U.S.C. § 547. FACTS In 1976 the debtor Harvey Petty, Jr. entered into a land sale contract to purchase an undeveloped five acre parcel in Marion County, Oregon for $15,000. On...
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94 B.R. 631 (1988) In re Cuyler WENBERG, and Neta Wenberg, Debtors. FEDERAL DEPOSIT INSURANCE CORPORATION, acting as Receiver of Valencia Bank, Appellee, v. Cuyler WENBERG, and Neta Wenberg, Appellants. BAP Nos. CC-87-2255-MoVMe, CC-88-1047, Bankruptcy No. SAX 87-00668 JR, Ref. No. M7-0824 JR. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 20, 1988. Decid...
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OPINION FACTS The debtor, prior to bankruptcy (initiated by a Chapter 11 petition, subsequently converted to Chapter 7), was obligated to appellant, State Board of Equalization (Board), for unpaid sales and use taxes. Pursuant to statute, the Board required that the debtor, as a condition of doing business, provide security in the sum of $9,100 which would be available for applicatio...
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OPINION This appeal arises out of the bankruptcy court’s order denying the appellant’s motion for taxing costs of $963.65, after the appellant had filed a motion to dismiss the underlying Chapter 11 petition. The corporate debtor initially opposed this motion, but subsequently withdrew its opposition resulting in default and eventual dismissal of the petition. 1 FACTS On...
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OPINION The United States appeals a grant of summary judgment in favor of Robert and Mary Isom (debtors) ordering the removal of prepetition tax liens. We reverse. FACTS The facts in this case are undisputed. Debtors owed the United States personal income taxes for the years 1974 through 1982, when they filed a Chapter 7 petition in March 1987. The debtors brought an adversary proceeding seeking ...
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MEMORANDUM AND ORDER On November 21,1988 Farm Credit Bank of St. Paul as successor in interest to the Federal Land Bank and the Production Credit Association (Bank) filed a Motion for Dismissal of the Debtor’s pending Chapter 12 case and also on that date moved for relief from stay. Dismissal is sought principally for the reasons that the Debtors fail to meet the 50% gross income test necessary...
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MEMORANDUM AND ORDER This adversary proceeding was commenced by complaint of the Plaintiffs, Shirley McDonough, Kristine Solberg, and Karyn Ervin (Plaintiffs), filed January 22, 1988, asking that the Defendant/Debtor Emil Earl Erdman, Jr. (Erdman), be denied a discharge generally pursuant to section 727(a)(2), (a)(3), (a)(4)(A) and (B), (a)(5) and (a)(7). The plaintiffs allege that Erdman...
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OPINION This case comes for hearing on Hardee’s Food Systems, Inc.’s (“Hardee’s”) motion for partial summary judgment to enforce the post-termination restrictive covenant contained in KBAR, Inc.’s (“Debtor”) license agreements, which were signed when KBAR, Inc. became a Hardee’s franchisee. The restrictive covenant prevents KBAR, Inc. from offering, for a one year period and in a specifie...
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OPINION This matter is before the Court on the FDIC’s Motion For Entry of Additional Findings of Fact and To Alter and Amend Judgment. The FDIC asks the Court to enter additional findings of fact and/or conclusions of law to the effect that 1) the FDIC is an agency of the United States, 2) the FDIC acquired a lien or security interest in the and to the Debtors’ equipment, livestock, crops, feed, s...
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MEMORANDUM OF DECISION This matter is before the court on a petition to determine entitlement to assets, filed on behalf of the Trustee on January 27, 1988. By it, the court has been asked to determine how much of the $47,680.27 currently held by the Trustee should be distributed to the debtors and/or the Farmers Home Administration. Any remaining funds would then be available for distribution ...
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MEMORANDUM AND ORDER Before the court is a motion for judgment on the pleadings filed by the defendant, Farmers Home Administration (FmHA), filed October 18, 1988. The plaintiff/trustee resists the motion arguing there yet remain unresolved questions of fact. The trustee, by complaint filed September 26, 1988, seeks avoidance under section 506(d) of the FmHA’s second mortgage in real...
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*637 MEMORANDUM OF DECISION This voluntary Chapter 11 was filed on August 21,1987. Among the debtor’s various assets is an interest in a retirement trust, which has a scheduled value of $300,-000.00. Debtor has claimed this interest as exempt property, pursuant to I.C. 34-2-28-1. The matter is now before the court upon objections to this exemption, filed on behalf of First N...
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MEMORANDUM DECISION On June 7, 1988 debtor filed its petition for relief under Chapter 11 of the United *799 States Bankruptcy Code. Among debtor’s creditors is the Valley American Bank and Trust Company. This creditor holds a lien upon practically all debtor’s assets, including accounts receivable, inventory, machinery and equipment. On June 14, 1988, Valley American Ba...
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OPINION The issues before the Court are whether the Debtors assumed the 1987 Feed Grain contracts administered by the Agricultural Stabilization and Conservation Service (“ASCS”), and whether the ASCS either waived or should be estopped from arguing nonassumption because it gave the Debtors a loan following confirmation of the Chapter 12 plan. On March 27, 1987, the Debtors enrolled their far...
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OPINION This matter is before the Court on the petition of the Trustee seeking turnover of property in the possession of the Defendant, Assumption Cooperative Grain Company. The parties agreed at a hearing held May 4, 1988, to have the Court decide the matter on the basis of briefs filed subsequent to the hearing. The Assumption Coop is a farmer-owned cooperative, organized under Illinois law...
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This proceeding, which arises under 28 U.S.C. § 1334(b) in a case referred to this court by the Order Of Reference entered in this district on July 30, 1984, is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administration of the estate, (B) — allowance or disallowance of claims against the estate or exemptions from property of the estate and (O) ...
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BENCH DECISION FOLLOWING HEARING ON MOTION FOR CHANGE OF VENUE Ocean Properties of Delaware, Inc. and Southern Shores Investments Corp. filed Chapter 11 cases in the District of Delaware on September 28, 1988. On October 12, the Debtors filed motions for joint administration. There is an objection to that motion in each case as well as two motions seeking transfer of the Ocean Properties case t...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Debtor’s Complaint to Determine the Dischargeability of a Student Loan. The Illinois State Scholarship Commission (ISSC), as Defendant, filed an Answer. The issue to be decided involves the validity of a six month post-deferral deferment for purposes of determining the five year limitation on non-dischargeable student loans....
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DECISION ON MOTION FOR CHANGE OF VENUE The Delaware and Hudson Railway Company filed a Chapter 11 railroad reorganization case in the District of Delaware on June 20, 1988. On June 24, the New York State Department of Transportation moved to transfer the case to the Northern District of New York in Albany. The Railway Labor Executives Association, Northeastern Industrial Park, Inc. and th...
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BENCH DECISION MCM, Inc., t/a Alyson’s Restaurant and Mybev Associates each filed Chapter 11 *308 cases on June 3, 1988. MCM is a corporation formed to operate a restaurant that Mybev, a real estate holding company, agreed to construct under a lease and construction agreement with Ruth Hill on property at 1800 Naamans Road, New Castle County, Delaware. The major stockholder of MCM is Michael ...
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OPINION THE PROCEEDINGS BELOW Canadian Commercial Bank (hereinafter CCB or appellant), a creditor of Hotel Hollywood, debtor and appellee herein, brings this appeal from the bankruptcy court’s denial of two motions: (1) to dismiss or convert the debtor’s Chapter 11 petition on the ground that it was filed in bad faith, and (2) to appoint a trustee. The motions had been filed by the U...
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OPINION By this appeal, the appellant Mr. Brown (attorney for the debtor), seeks to set aside Judge Fenning’s order imposing sanctions in the amount of $500 for appellant’s failure to notify opposing counsel prior to a scheduled hearing that the debtor would not contest the appellee’s motion to lift the stay. FACTS On September 5, 1986, the appellee filed a motion for relief from the automa...
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OPINION This appeal arises from an order allowing the claim of Idaho Asphalt Supply, Inc. as an administrative expense pursuant to 11 U.S.C. §§ 364(a) and 503(b)(1), 1 the denial of reconsideration of the above order and an order denying a request for judicial notice of a deposition. We affirm. I. FACTS. On September 1,1982, the debtors, Eldon D. Blumer and Katherine ...
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By this appeal, the debtor/appellant seeks to set aside a Summary Judgment granted by the bankruptcy court which partially validated a pre-petition tax foreclosure sale and post-petition issuance of the tax deed. As a result of the decision the debtor’s estate was allowed only a one-half (Vz) undivided interest in the property. FACTS The facts in this case are essentially undisputed. Mr. Sienkiewi...
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OPINION The Debtors appeal a bankruptcy court order granting a creditor’s motion for an *136 extension of time in which to file a proof of claim. For the following reasons, we AFFIRM. FACTS The Appellants, Charles and Martha Dix (“Debtors”), filed a Chapter 11 petition on September 19, 1984. The Appellee, Theodore Johnson (“Johnson”), filed a Chapter 11 petition on ...
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DECISION AND ORDER REGARDING REJECTION OF LICENSE AGREEMENT Gunter Hotel Associates (“Debtor”) filed a motion on November 3, 1988 to reject a license agreement with Carlson Hospitality Group, Inc. (“Carlson”). A hearing was held on December 13, 1988 on this motion and on Carlson’s motion to compel rejection of the license agreement. The hearing was held contemporaneously with the hearing ...
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MEMORANDUM OF DECISION Presently before the court is a complaint filed by James A. Kandel, the Chapter 7 trustee, seeking a determination that property of the Therese M. Strabley Trust is property of the bankruptcy estate. Richard Reichel, trustee of the Therese M. Strabley Trust, and the debtor, Therese M. Strabley, (Defendants) answered denying the essential allegations of the complaint. A pre-t...
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MEMORANDUM OF OPINION CONCERNING RENTALS This is another round in the continuing battles between Phoenix Grain, Inc. (Phoenix) and Thomas J. Griffith, Trustee-in-Bankruptcy for Hipp, Inc. (Griffith). Facts On October 1,1973 Hipp, Inc., executed a promissory note payable to John Hancock Mutual Life Insurance Company (the Hancock Note) for $2 million. The note was secured by liens on grain storage...
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MEMORANDUM OPINION AND ORDER On August 1, 1988, Melvin A. Woodell filed an individual chapter 13 case under Title 11 in this division. On November 9, 1988, the debtor and his nondebtor spouse, Mrs. Sandra M. Bisgood Woodell, filed a joint Motion To Amend Original Petition By Joinder Of Spouse, by which the debtor seeks to add his wife as a petitioner and thereby convert his individual case to a...
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MEMORANDUM OF DECISION Before the court for consideration is the request of the Richland County Treasurer (Treasurer) for the payment, as an administrative expense, of real property taxes, penalties and interest incurred by Mansfield & Rubber Company (MTR) after it filed for relief under Chapter 11 of Title 11 of the United States Code. The court has made three previous rulings (March 26, 1987, D...
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MEMORANDUM OF DECISION Presently before the court is a Motion for Summary Judgment filed by the Defendant, Ricky Burdell Cain. Respondents are General Accident Insurance Company and Steven A. Brown, Plaintiffs. Plaintiffs filed a complaint alleging their claim of $25,414.21 is non-dischargeable pursuant to 11 U.S.C. § 523(a)(9). Defendant answered denying the non-dischargeability of the debt an...
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MEMORANDUM OF DECISION Presently before the court is a Motion for the Appointment of an Additional Committee, filed on behalf of the employees of Mansfield Ferrous Castings, Inc. (Employees). The Official Unsecured Creditors Committee (Committee) responded asserting various reasons in opposition to the motion. A hearing was held at which the Employees were given an opportunity to file a writt...
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MEMORANDUM OF DECISION Presented is a motion for relief from the automatic stay and/or the discharge injunction. Packaging Corporation of America (PCA) seeks such relief so as to be permitted to pay over money, retained by it under a construction contract with the Debtor, to certain subcontractors and employees of the Debtor who have filed mechanics’ liens against PCA’s property. The Co-Trustees o...
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MEMORANDUM OF OPINION ON DAMAGES FOR FILING A WRONGFUL INVOLUNTARY PETITION On March 11, 1988 Zachry Associates, Inc. (Zachry) filed an Involuntary Petition for relief under Chapter 7 of the Bankruptcy Code against Petrosciences International, Inc. (PSI). After an evidentiary hearing held April 26, 1988, the Court concluded that it should not grant relief. By order entered May 4, 1988, th...
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MEMORANDUM DECISION West Johnson Corporation continued to operate its restaurant business after filing a chapter 11 petition on April 17, 1986. The case was converted to chapter 7 on December 15, 1986. After conversion the debtor filed with the court the required updated schedules and mailing matrix. Madison Gas & Electric (hereafter “MG & E”) was listed on both schedule A-3 and the maili...
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ADVERSARY PROCEEDING SEEKING ‘A DETERMINATION OF NONDIS-CHARGEABILITY OF A DEBT The plaintiff, the debtor’s estranged wife, seeks a determination by this court that the distributive award afforded her pursuant to New York Domestic Relations Law § 236[B] is nondischargeable in compliance with 11 U.S.C. § 523(a)(5). The debtor argues that this distributive award is not in the nature of alim...
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MEMORANDUM AND ORDER Re: Trustee’s Objection to Exemption The matter before the Court is the Trustee’s objection to Debtors’ claim of exemption. The issue before the Court is whether the Debtor may exempt jewelry as wearing apparel pursuant to the Iowa Exemption Statute. FINDINGS OF FACT 1. The Debtors have claimed as exempt the following items of jewelry: Wedding Rings $ 370.00 Nec...
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*900 ORDER ON MOTION TO AVOID LIEN On March 17, 1988, a telephonic hearing was held on the motion to avoid lien filed by Ethel J. Dettman (hereinafter “Debt- or”), and the resistance thereto by Fort Madison Bank & Trust Co. (hereinafter “Bank”). Peter W. Hansen appeared on behalf of Debtor and Gregg Humphrey appeared on behalf of Bank. This is a core proceeding pursuant to 2...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT DENYING PLAINTIFF’S COMPLAINT FOR MARSHALING OF LIENS The plaintiff trustee in bankruptcy seeks to invoke the doctrine of marshaling of liens with respect to some $44,750.49 currently in his custody, which, without the application of that doctrine, would be payable to the defendants Jefferson Broady, Sr. and Dorothy G. Broady. The action came...
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ORDER RESULTING FROM DEFENDANTS’ MOTION TO DISMISS ACTIONS FILED BY TRUSTEE This matter came before the Court on the defendants’ motion to dismiss the preference actions filed by the trustee. The question before the Court is how to count the 90 day period of Section 547(b)(4)(A). The debtors filed voluntary petitions on February 18, 1986. The previous day was a federal holiday (President’s ...
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96 B.R. 827 (1988) In Re Garrett & Myrna COHN, Debtors. Garrett & Myrna COHN, Plaintiffs, v. STATE OF ILLINOIS, DEPARTMENT OF REVENUE, Defendant. Bankruptcy Nos. 86 B 07797, 86 A 833. United States Bankruptcy Court, N.D. Illinois, E.D. February 23, 1988. James Sprayregen, Lord, Bissell & Brook, Chicago, Ill., for plaintiffs. James D. Newbold, Sp. Asst. Atty. Gen., Revenue Litigation D...
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JUDGMENT AND ORDER At San Antonio, Texas, came on for trial the foregoing cause. Upon consideration of the evidence and the arguments of counsel, the court enters this judgment and order. The following represents this court’s findings and conclusions with respect thereto. On May 15, 1984, Larry J. Stanley (“Stanley”) and his closely held company, Stanley-Southwest Investments, Inc. (“Stanley-Sout...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND FINAL JUDGMENT THAT PLAINTIFF HAVE AND RECOVER THE SUM OF $674.00 FROM DEFENDANT The plaintiff, an attorney who succeeded the defendant as counsel for the debtor, brings this action to recover upon the defendant’s alleged promise to pay plaintiff’s attorney’s fees. After issuance of appropriate mesne process by the court,2 and the filing of a response the...
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AMENDED ORDER This case arises under Chapter 12 of the United States Bankruptcy Code. Debtor’s amended plan was confirmed by this court’s order of August 7, 1987. The matter is now before the court on a motion for relief from stay filed on behalf of a secured creditor, Phoenix Mutual Life Insurance Company. The motion is premised upon debtor’s material default under the terms of the confi...
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*576 MEMORANDUM OPINION AND ORDER We address ourselves to the question of whether this Court has the authority to conduct a jury trial in a core proceeding. The demand for a jury trial made by the defendant Datafast, Inc. (“Datafast”) is not opposed. For the reasons discussed below, we find that the defendant is entitled to a jury trial under the facts of this case and we are of ...
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MEMORANDUM OPINION The motion of Freedom Federal Savings and Loan Association to transfer venue of this case came on for hearing. After careful consideration of the evidence, arguments of counsel, and legal authorities, the undersigned announced the determination that venue should be transferred and so recommended to the district court. The United States District Court for the Southern Di...
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ORDER ON APPLICATION FOR INTERIM ALLOWANCE OF ATTORNEY’S FEES BY COUNSEL FOR DEBTOR Counsel for the debtor (“Counsel”) in this chapter 11 case has applied for $18,978 interim compensation. 1 For the reasons *186 set forth below, $4,364.47 may be retained pursuant to 11 U.S.C. § 329 on the basis that it represents prepetition payment for prepetition services, which ...
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DECISION RE MOTION FOR PRELIMINARY INJUNCTION Kora & Williams Corporation (“Debtor”), the plaintiff, was the contractor for the Union Station Bus/Parking Garage and Rail Access project in Washington, D.C. The Insurance Company of North America (“INA”), which has intervened in support of the Debtor’s position, issued a payment bond, as surety, on behalf of the Debtor, as principal, in conn...
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MEMORANDUM OF DECISION This matter is before the court on the debtors’ MOTION TO AVOID LIEN UNDER 11 U.S.C. § 522(f) (“Motion”). The creditor, General Finance Corporation (“General”), whose lien the debtors are attempting to avoid, filed an objection to the Motion. A pretrial conference was held and the parties waived a trial on the matter and instead agreed to submit stipulated facts and...
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OPINION AND ORDER This proceeding came before the Court on March 25, 1988 for an evidentiary hearing on plaintiff-debtor’s request that the automatic stay provisions of 11 U.S.C. § 362(a) be extended to its president, Mr. Paulo da Cunha. Plaintiff seeks to enjoin the Federal Deposit Insurance Corporation (FDIC) from further prosecuting a civil action against Mr. da Cunha before the U.S. D...
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MEMORANDUM DECISION AND ORDER ON MOTION TO TRANSFER VENUE OF' ANOTHER CASE TO THIS COURT I. Maruki USA Co., Inc. (Maruki USA), the debtor, moves to transfer to this district the bankruptcy case of HL Associates Limited (HL Associates) currently pending in the Southern District of Florida. Other bankruptcy cases are also pending in other districts involving debtors that have some form...
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OPINION The complaint herein alleges that the defendants are creditors of the above-named *659 debtor and the holders of a secured claim totalling $394,776.00. Paragraph 3 of the complaint states “that this is an action 11 U.S.C. Section 523(c) for determination excepting Plaintiffs’ debt from discharge_” The complaint however alleges acts which if established would warr...
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OPINION AND ORDER The matter pending before the Court is whether the creditor AVCO Financial Services, Inc. (“AVCO”) violated the automatic stay provisions of 11 U.S.C. § 362(a). On March 7, 1988 the debtor filed a complaint to recover damages for a violation of the automatic stay. The debtor alleges that due to the harassment by AVCO’s employees, she was forced into refinancing a lo...
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MEMORANDUM OPINION THE MATTERS before the Court in this Chapter 11 proceeding are the debtor’s objections to the claims held or controlled by the Delaloye Group. The creditor’s committee joins in the debtor’s objections. Since the filing of the petition, it has become apparent from the pleadings, proceedings, and testimony that underlying the reorganization of the debtor is a struggle for con...
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Appellant, Colene Venhaus, appeals a bankruptcy court order sustaining the Debtors’ objection to her claim on the grounds of laches and that Appellant failed to comply with Bankruptcy Rule 3001(e)(2). For the following reasons, we AFFIRM the decision of the bankruptcy court. FACTS In January 1980, the Debtors, Gordon and Carol Wilson, purchased a fire extinguisher servicing business f...
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96 B.R. 253 (1988) In re Fernando MAGALLANES, Debtor. Fernando MAGALLANES, Appellant, v. Ardelle WILLIAMS, Appellee. BAP No. SC 88-1214 RPAs, Bankruptcy No. 85-6691 M7. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 21, 1988. Decided December 16, 1988. *254 Frederick A. Meiser, Jr., San Diego, Cal., for appellant. Ardelle Williams, Harris & Williams, ...
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ORDER Before the court is the motion to lift stay brought by U.S. Cylinders, Inc. (“movant”). This matter is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(G). Movant and debtor have stipulated to the following facts for purposes of this motion: On December 28, 1983, debtor purchased from movant 150 high pressure cylinders, Model No. HP-122, Serial Nos. 303454D-303603...
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ORDER Before the court is debtors’ motion to reopen this Chapter 13 case, to order the United States of America (“United States”) to cancel the federal tax lien filed against debtors’ property and enjoin the United States from attempting to enforce discharged or disallowed claims against debtors, and for contempt, sanctions, and attorney’s fees against the United States. Debtors contend that th...
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ORDER Before the court is defendant’s motion to dismiss this fraudulent transfer and preference complaint on the basis that the doctrine of laches bars plaintiff from proceeding against defendant. This is a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(F) and (H). The period for commencing fraudulent transfer and preference actions is governed by the time limits imposed by ...
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ORDER Before the court is Virginia A. Dilkes’ motion for reconsideration of the August *677 31, 1988 order disallowing her claim, motion for a new trial on the objections to her claim, motion for amendment of the court’s findings of fact and conclusions of law, and motion for an order vacating or amending said order. This matter originally came on for hearing on August 9, 198...
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MEMORANDUM OPINION AND ORDER REGARDING DEBTOR’S APPLICATION TO SELL PERSONAL PROPERTY JURISDICTION This matter is before me on motion by San Jacinto Glass Industries, Inc. (debtor) to sell personal property pursuant to 11 U.S.C. § 363. I have jurisdiction to hear this proceeding under 28 U.S.C. § 1334(b), 28 U.S.C. § 157(a), and the District Court’s Order of Reference of Bankruptcy C...
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ORDER AUTHORIZING FILING OF CLASS PROOF OF CLAIM THIS CAUSE came before the Court on November 7, 1988, in Ft. Lauderdale, Florida, upon the Motion to authorize filing of class proof of claim or, in the alternative, extend the claims bar date filed by the attorney for the class plaintiffs in the pending State Court action, and the Court having reviewed the matter, having considered arguments of ...
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This matter came on to be heard for a bench trial to determine whether the defendant’s obligations to his former spouse are excepted from the defendant’s Chapter 7 discharge under 11 U.S.C. § 523(a)(5)(B). After reviewing the record and hearing the arguments of counsel, the court, pursuant to Bankruptcy Rule 7052, makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT P...
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ORDER RE MOTION FOR SUMMARY JUDGMENT On November 10, 1988, a hearing was conducted by this Court to consider the Trustees’ Motion for Summary Judgment as well as the debtors’ Cross-Motion for Summary Judgment. At the conclusion of the hearing and after oral argument, the matter was taken under advisement. The underlying adversary proceedings essentially arise out of the debtors’ clai...
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RECOMMENDED OPINION CONTAINING PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW We consider herein together two separate adversary proceedings instituted by Chapter 7 Debtors against the same defendant-attorney based upon the attorney’s alleged dispatch of the same letter to recover damages under the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (hereinafter referr...
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ORDER Third party defendant Donna Vraden-burg has made a motion for summary judgment on the third party claim. For the reasons stated, this motion for summary judgment is denied as to the legal theory presented by third party plaintiff Third National Bank and granted as to the equitable theory raised by Third National Bank. Vradenburg was the president and sole shareholder of Quality Takes Time (...
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OPINION Anthony and Linda Martinelli (Martinel-lis) appeal the bankruptcy court’s denial of their motion to set aside a stipulated judgment under Fed.R.Civ.P. 60(b). We affirm. FACTS In April 1985, the Martinellis borrowed $13,000 from the Convention Center branch of Valley Bank and executed a promissory note for the same. The loan was originally applied for in February 1985, at...
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OPINION The Superior Court of California, San Diego County, awarded a portion of appellant/debtor’s retirement pension to appel-lee, his former wife (“wife”), in a Judgement for Division of Community Property subsequent to their marriage dissolution. The percentage of the pension was fixed according to the standard formula for determining retirement benefits. Debtor took early retirement ...
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AMENDED DECISION Submitted on memoranda on October 29, 1987, on the debtors’ motion to avoid a nonpossessory, nonpurchase money security interest in personal property, pursuant to 11 U.S.C. § 522(f). 1 The defendant, Feldman Furniture Company, objects. The relevant facts, which are not disputed, are as follows. On November 14, 1984, the Smileys entered into a retail instal...
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OPINION I This appeal raises the question whether a secured creditor must notify a guarantor before sale of collateral. The trial court concluded that guarantors are “debtors” under Section 9105(l)(d) of the California Commercial Code, 1 thereby entitling them to notice and other protections under Section 9504(3) and that any pre-default waiver of notice executed by guaran...
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ORDER DENYING CONFIRMATION This matter is before the court on the debtors’ amendment to their Chapter 13 *136plan filed October 5, 1988 in response to this Court’s order entered September 22, 1988 denying confirmation of the debtors’ first proposed plan of reorganization. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this ...
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ORDER On or about July 30, 1986, the Debtors jointly entered into a loan agreement with AVCO FINANCIAL SERVICES OF OHIO, INC. (“AVCO”). As security for the note they signed in conjunction with the loan, the Debtors agreed to pledge certain items of personal property as collateral, including, among other things, a crossbow and a shotgun. It is admitted that the crossbow and the shotgun do ...
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ORDER DIRECTING DEBTORS AND CREDITORS, OR ANY OF THEM, TO SHOW CAUSE WITHIN 21 DAYS OF THE DATE OF FILING OF THIS ORDER IN WRITING WHY THE CLAIMANT’S CLAIM SHOULD NOT BE GRANTED IN FULL; WHY CONFIRMATION OF THE DEBTORS’ PROPOSED PLAN OF REORGANIZATION SHOULD NOT BE DENIED; AND WHY THE WITHIN CHAPTER 11 PROCEEDINGS SHOULD NOT BE DISMISSED This chapter 11 case now pends before the court as ...
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ON TRANSFER TO UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA This court formerly, on March 8, 1988, issued its written order directing that the debtor further show cause in writing why this case should not be transferred to the United States Bankruptcy Court for the Northern District of Oklahoma in the interest of justice and for the convenience of the parties within the mea...
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ORDER DENYING MOVANT’S “MOTION FOR EXPANSION OF TIME IN WHICH TO FILE COMPLAINT OBJECTING TO DISCHARGE” On August 15, 1988, the time for filing objections to discharge ran out. On August 22, 1988, the movant trustee filed his written motion to expand the time in which to file a complaint objecting to discharge. In that motion, he states “that he has been advised that the debtor herein has been nam...
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ORDER DENYING LEAVE TO THE DEBTOR KATHRYN LANELL BROADY TO APPEAL IN FORMA PAUPERIS Formerly, on July 19, 1988, this court issued its written order denying the respondent's objection to the claimants’ claim in the sum of $234,803.81. The debtor Kathryn Lanell Broady filed a document on July 27, 1988, which requested reversal of that decision and which this court treated as a notice of appeal. L...
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MEMORANDUM OPINION THIS MATTER is before the court on the objection of debtor’s ex-wife to a claimed exemption for $26,365.00 held by debtor in a retirement plan in this Chapter 7 bankruptcy case. This case involves the interpretation of Nebraska’s recently enacted exemption for stock, pension or similar plans under Neb.Rev.Stat. § 25-1563.01 (Supp.1987). Critical to disposition of this c...
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MEMORANDUM AND ORDER INTRODUCTION The Court has before it for consideration an Objection to the Claim filed by the Internal Revenue Service. The Debtor originally filed a Petition for relief under Chapter 13 of the United States Bankruptcy Code February 17, 1983. A series of activities took place which are set forth in the “stipulated facts”. On July 18, 1988, the United States of Am...
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MEMORANDUM Facts Kathleen Laughlin is the duly appointed and acting Chapter 13 Trustee for the District of Nebraska appointed by this Court under the authority of 11 U.S.C. § 1302(d). As of this date, the United States Trustee system is not in effect in this judicial district. The Trustee currently is responsible for administering approximately 1700 Chapter 13 bankruptcy cases. ...
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MEMORANDUM OF DECISION (Motion for Remand of Removed Cause of Action) Sitting by Designation. This matter comes before the court upon the application for removal filed August 17, 1988, of a case commenced on April 21, 1988, in the Superior Court for the District of Columbia, Civil Division, captioned Darlene Malone, Individually and as mother and next friend to Linda Green, a minor, and ...
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*666 ORDER OF DISTRIBUTION OF FUNDS OF ESTATE Formerly, on June 28, 1988, this court issued its order directing the creditors, or any of them, to show cause in writing within 25 days why distribution of the within estate should not take place in accordance with the calculations contained therein and according to the legal principles there contained. In response to that order, two...
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MEMORANDUM ON MOTION OF DEBTORS TO STRIKE PROVISION IN REAFFIRMATION AGREEMENTS The debtors in these four Chapter 7 cases each filed a motion requesting an order striking a provision in a proposed reaffirmation agreement with Leader Federal Savings and Loan Association (Leader Federal). The reaffirmation agreements at issue purport to make the respective debtors, individually or jointly, ...
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ORDER DENYING MOTION OF DEBTORS FOR RECONSIDERATION OF ORDER DISMISSING APPEAL On April 19, 1988, this court issued its written order dismissing the within chapter 11 proceedings and directing debtors’ counsel to return any and all attorney’s fees to the debtors. The debtors filed a motion for reconsideration, which was denied by the bankruptcy court on May 3, 1988. The debtors filed thei...
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OPINION This matter is before the Court on the Petition to Authorize Use and Right to Lease for a period of Chapter 12 Reorganization filed herein by the debtor, Arthur Joseph Verdun, and on the Motion for Relief from Automatic Stay filed by the People of the State of Illinois, ex rel. Michael Tristano, Director of the Department of Central Management Services for the State of Illinois, and Michae...
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OPINION This matter is before the Court on the Motion for New Trial or, in the Alternative, Motion to Amend Order of Determination of Status of Claim filed by Westchester Group, Inc. requesting that the Court reconsider its Order of June 22, 1988, in which the Court found that the claim for realtor’s commission by Westchester Group, Inc. and Jane T. Arthur & Associates, Inc. was an unsecu...
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OPINION The matters before this Court are Debtors’ Claims of Homestead Exemption and Trustee’s Report of Exempt Property. Hearing was held on November 15, 1988. The facts adduced at trial are as follows: Larry Silverman and Linda A. Silverman filed a joint voluntary petition in accordance with Chapter 7 of the Bankruptcy Code on February 3, 1988. On February 29, 1988, Larry and Linda...
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MEMORANDUM OPINION The plaintiffs, Lincoln National Life Insurance Company (“Lincoln”) and Westinghouse Credit Corporation (“Westinghouse”), have moved the Court to lift the automatic stay imposed by section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a), or in the alternative, to provide Lincoln and Westinghouse adequate protection for certain collateral in which they have a security ...
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MEMORANDUM OPINION This case is before the court on the debt- or’s motion for summary judgment declaring Fairchild Aircraft Corporation’s (“FAC”) lien on certain airline property to be unperfected for FAC’s failure to file appropriate documents with the Federal Aviation Administration, and therefore to be voidable pursuant to section 544 of the Bankruptcy Code (11 U.S.C. § 544). FAC respo...
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MEMORANDUM OPINION Plaintiffs Jesusita Dahlin and Leslie Guhl seek to have their claims against the debtor, Kenneth Eugene Dahlin, declared non-dischargeable. Mrs. Dahlin and the debtor were divorced in the District Court of Galveston County, Texas, on December 20, 1979. On May 2, 1988, the debtor filed a chapter 7 petition listing the plaintiffs as unsecured creditors relative to the provision...
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MEMORANDUM OPINION INTRODUCTION GARAKO FARMS, INC., the Debtor herein, filed this Chapter 12 Petition in the above-entitled Court on July 18, 1988. The Debtor filed a Plan on October 17, 1988, and the Confirmation hearing was set for November 30, 1988. On November 30, 1988, the Chapter 12 Trustee, M. Nelson Enmark appeared; Albert J. Berryman of the law firm of Lerrigo, Snyder, Nible...
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MEMORANDUM OF DECISION (On Motion to Enforce Automatic Stay, and Other Relief) Brilliant Glass, Inc. (debtor) moves to enforce the automatic stay and recover sanctions pursuant to Bankruptcy Code § 362(h) against Streamline Shipper’s Association (Streamline) for attempting to collect an obligation owed to Streamline by the debtor from the customers of the debt- or. FACTS On...
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OPINION This matter is before the Court on the Objections to Confirmation filed by Farm Credit Bank of St. Louis and First of America Bank of Kankakee—N.A. (Bank). There having been a hearing held on these objections on October 3, 1988, wherein the parties presented testimony and documentary evidence. The parties were given time to brief the issues; the last of these briefs was received October...
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STATEMENT OF THE PROCEEDING, FINDINGS OF FACT, AND CONCLUSIONS BY THE COURT Statement of the Proceeding — The above-styled case was commenced January 26, 1988, and is pending before this Court under title 11, chapter 11, United States Code, with no trustee having been appointed. The above-styled adversary proceeding is related to said case and has been pending before this Court since its removal t...
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OPINION This matter comes before the Court on the Motion of Sussex Barrel and Drum, Inc., to compel the Debtor New Wood-bridge to honor the contract of sale for commercial property between itself and Sussex Barrel & Drum Co., which New Woodbridge claims is no longer valid. At the heart of Sussex’ motion is its contention that the mortgagees of the property at issue should be compelled to ...
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ORDER In this Chapter 11 case, Debtor filed a voluntary petition on April 14, 1987, and has served as Debtor-in-possession since that date. Numerous motions for relief from the automatic stay have been filed, and some have been granted. Settlement of a substantial claim with a major creditor, City of Missoula, involving a subdivision in that city has been resolved by compromise under Order of C...
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MEMORANDUM IN SUPPORT OF ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANT, DISMISSING ADVERSARY PROCEEDING Plaintiffs filed a complaint seeking an injunction, attorneys’ fees and actual and punitive damages for violation of the automatic stay of 11 U.S.C. § 362(a)(1) arising from the State’s post-chapter 11 commencement of a workers’ compensation proceeding without first seeking modification of the s...
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*646 MEMORANDUM OPINION Before the Court is an Objection to the Confirmation of the debtors’ first amended plan of reorganization filed by the United States. An evidentiary hearing was held on June 6, 1988, and briefs were filed by the parties thereafter, concerning the issues raised at the confirmation hearing. Specifically, the Farmers Home Administration (FmHA) objected to the debtors’ pro...
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MEMORANDUM OPINION Before the Court is an objection to the debtor’s claim of exemptions filed by First National Bank of Lewisville, Arkansas. The Court held an evidentiary hearing on the matter on August 9, 1988 and received briefs from both parties concerning Arkansas homestead exemptions. The debtor filed for relief under chapter 7 of the United States Bankruptcy Code. In his petit...
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ORDER This is a dispute between Cello Bag Company, Inc. (“Cello”), a disappointed potential purchaser of the debtor’s assets, and Champion International Corp. (“Champion”), a creditor with a security interest in some of the debtor’s assets. Cello alleges that it had a contract with Champion to purchase the debtor’s assets before the debtor’s involuntary Chapter 7 case was filed. Cello uns...
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MEMORANDUM OPINION AND ORDER GRANTING MOTIONS FOR DETERMINATION OF SECURED STATUS AND MOTION TO AMEND SECOND AMENDED PLAN OF REORGANIZATION AND ORDER CONFIRMING SECOND AMENDED PLAN OF REORGANIZATION AS AMENDED Pending before the court is debtors’ Second Amended Plan of Reorganization and three related motions: 1) Motion to Amend the Plan, filed by debtor's; 2) Motion to Determine Secured ...
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OPINION Lena Mae Jenkins has brought an adversary proceeding, pursuant to 11 U.S.C. § 523(a)(5) and Bankr.Rule 4007, seeking a determination that a prepetition debt owed to her by her former husband, the debtor, is nondischargeable. At trial, the parties stipulated to those facts they believed relevant to this dispute. Posttrial memoranda *356 were then filed, making this mat...
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FINDINGS OF FACT CONCLUSIONS OF LAW This matter came on for hearing before the Court after due notice, pursuant to the Order of Judge Charles Schwartz, United States District Court, Eastern District of Louisiana, on the Motion of Executive Office Centers, Inc. (“EOC”) to Disallow and Objection to Allowance of Claim of Burrus Investment Group, Inc. (“BIG”). The Court has considered the arg...
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OPINION AND ORDER The crucial issue pending before the Court is the validity of a clause included in the master deed of debtor’s property which prohibits the leasing of the apartments by the owners for less than thirty (30) days. The parties were heard on this issue on October 20,1987 (docket No. 27). On October 28, 1987, creditor Agueybana Condominium filed a Memorandum (docket No. 25) reque...
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OPINION AND ORDER This case is before the Court on the motion to lift stay filed by Caribbean Gulf *637 Refining Corporation (Careco) on the grounds that the contractual relations with the debtor have terminated, that if the contract is still in full force and effect it should be deemed rejected under 11 U.S.C. § 365(d)(1), (4) as the debtor has not assumed the lease within sixty (60) days fr...
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DECISION AND ORDER ON MOTION TO TRANSFER VENUE Federal National Mortgage Association (FNMA) moves to transfer venue of the case of Garden Manor Associates, L.P., (Garden Manor) the debtor, to the United States Bankruptcy Court for the District of Arizona. FNMA contends that the requirements for proper venue as set forth in 28 U.S.C. § 1408 have not been met or, alternatively, if venue is proper...
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99 B.R. 370 (1988) In re Marsha Ruth MURPHY, Debtor. Bankruptcy No. 1-88-00003. United States Bankruptcy Court, S.D. Ohio, W.D. October 18, 1988. Stephen C. Crowe, Milford, Ohio, for debtor. Norman L. Slutsky, Trustee, Cincinnati, Ohio. Charles Caldwell, Asst. U.S. Trustee, Cincinnati, Ohio. DECISION and ORDER ON TRUSTEE'S OBJECTION TO EXEMPTION CLAIM BURTON PERLMAN, Chief Judge. In this Chapter...
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ORDER DENYING CONFIRMATION This matter is before the Court on various objections to confirmation of debtors’ proposed chapter 12 plan. The appearances are as follows: William I. Schawo for debtors; Lori Williams for the trustee; Calvin Karlin for the Federal Land Bank; Ruth Graham for Hardin and Josephine Mann; Lynn Lauver for the First National Bank in Goodland; Merlin G. Wheeler for the Colum...
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MEMORANDUM The matter before the court is a Motion for Modification of Stay (Fil. # 28) and an Objection to Plan (Fil. #29), filed by the United States of America (“USA”) on behalf of the Farmers Home Administration. For the reasons stated, the motions are sustained. FACTS The FmHA is the holder of a promissory note and real estate mortgage executed by the debtor. Debtor de...
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MEMORANDUM DECISION AND ORDER VACATING THE STAY On June 17, 1988, The Merchants Bank filed its Motion to Vacate the Stay, and Motion for Turnover of Certain Proceeds. On July 5, 1988, the Debtor filed a Response, requesting a Final Hearing. On July 20, 1988, The Merchants Bank filed a Reply. At a Preliminary Hearing before this Court on July 27, 1988, counsel for The Merchants Bank a...
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MEMORANDUM OPINION This case is a matter of first impression. On August 17, 1987, the debtor filed a chapter 13 plan listing the plaintiff as a “Class 9” creditor relative to the debtor’s obligation to pay her a portion of his military retirement pension under a final decree of divorce. The plaintiff has filed a motion for summary judgment in conjunction with her complaint for determination of ...
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MEMORANDUM AND ORDER The Defendant, Maury County, filed three separate motions in response to the Trustee’s Complaint for Declaratory Judgment. On November 25, 1987, the Honorable Herman W. Coolidge denied the Defendant’s Motion for Partial Summary Judgment and Ordered that 11 U.S.C. Section 362 tolled the running of the Maury County Zoning Resolution until further order of this Court. Ju...
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MEMORANDUM OPINION AND ORDER OF COURT The matters presently before the court are the motions of Phoenix Capital Corp. (“Phoenix”), Drexel Burnham Lambert, Inc. (“Drexel Burnham”) 1 , Cowen & Co. *242 (“Cowen”), and AI Investment Partners, L.P. (“AI Investment”), 2 for reconsideration of this court’s Memorandum Opinion and Order of November 3, 1988. The m...
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ORDER This matter is before the Court on Debt- or’s motion filed July 11, 1988 for authorization to obtain credit in the amount of approximately $400,000 pursuant to 11 U.S. C. § 364(d). Notice of Debtor’s motion was given pursuant to Bankruptcy Rule 2002(i) and to all creditors with an interest in the property on July 11, 1988. A preliminary hearing was held July 27 and continued to July...
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MEMORANDUM AND ORDER By their joint motion, Commodore Savings Association and Commodore Financial Services (hereinafter jointly referred to as *290 “Commodore”) seek a determination that Commodore’s correspondence, taken together with other acts of Commodore, constitute a timely “informal” proof of claim capable of amendment by tardily filed formal proofs of claim. Objections to the motion ha...
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MEMORANDUM AND ORDER The plaintiff in this adversary proceeding seeks a determination that the $155,000. debt owed to the plaintiff by the defendant is nondischargeable under section 523(a)(6) of the Bankruptcy Code (11 U.S.C. § 523(a)(6)). The debt is based on a judgment issued against the defendant upon causes of action for alienation of affection and criminal conversation. FA...
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99 B.R. 715 (1988) In re CHICORA GROUP, a Partnership, Debtor. Robert F. ANDERSON, Trustee, Plaintiff, v. Rose DeLONG, Defendant. Bankruptcy No. 88-00164, Complaint No. 88-0100. United States Bankruptcy Court, D. South Carolina. December 28, 1988. W.A. Strait, Anderson, Lowder & Strait, P.A., Columbia, S.C., for plaintiff. John T. Taylor, Charleston, S.C., for defendant. MEMORANDUM AND ORDER...
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MEMORANDUM OPINION The Houston Pipe Line Company (“HPC”) claims that involuntary payments it made to the Comptroller of Public Accounts of the State of Texas constitute a priority claim in the debtor’s bankruptcy. The Trustee objects on the ground that § 507(d), 11 U.S.C. § 101, et seq., bars HPC’s priority status. The Trustee objects to the priority status of HPC’s claim, stat...
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MEMORANDUM OPINION This matter comes before the Court on briefs in an adversary proceeding filed to *429 recover a payment made by debtor AMWC, Inc. d/b/a American Wholesale Club (“AMWC”) to defendant General Electric Major Appliance (“GE”) as preferential pursuant to 11 U.S.C. § 547. This Court has jurisdiction over the controversy pursuant to 28 U.S.C. § 157(b)(2)(F) as a c...
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ORDER Now before the Court for review is Trustee’s Proposed Sale of Real Property owned by the Chapter 7 debtor corporation. Two objections were filed. One Objection to the Private Sale filed by the debtor, however, was withdrawn as satisfied. The second Objection to Proposed Sale was filed by R. Wingfield Martin. A subsequent Amended Objection was also filed. These matters came before th...
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MEMORANDUM OPINION AND ORDER DENYING CONFIRMATION OF THIRD AMENDED PLAN OF REORGANIZATION I.PRELIMINARY STATEMENT This matter is before the Court following a hearing held to consider confirmation of the Third Amended Plan of Reorganization (“Plan”) filed in this Chapter 11 case. The Plan has been jointly proposed by Future Energy Corporation (hereinafter “Future” or “debtor” or “debt...
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MEMORANDUM Evidentiary hearing was held on March 9, 1988, concerning the liability of debtor, Theodore Y. Olson, to the United States through the Internal Revenue Service for an assessment pursuant to 26 U.S.C. § 6672 in the amount of $184,220.96. Robert Creager of Berry, Anderson, Creager & Wittstruck, P.C., Lincoln, Nebraska, appeared on behalf of the debtor; Frank Heinish of Geneva, Ne...
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MEMORANDUM OPINION AND ORDER This case is before the Court on the plaintiff’s complaint to determine the dis-chargeability of an alleged indebtedness under Bankruptcy Code Section 523(a)(4) and (a)(6) (11 U.S.C. § 523(a)(4) and (a)(6)). For reasons stated in this opinion the Court finds that an indebtedness of the debtor to the plaintiff in the amount of $19,823.49 is excepted from d...
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MEMORANDUM The court has three issues before it for resolution: (1) Whether a “Complaint For Interpleader” filed by the plaintiffs and now counter-defendants, Arthur Temlock, Thomas Miller, Frank Sisko, J. Phillip Davis, and James Baker (plaintiffs) in the United States District Court for the Eastern District of Tennessee on February 16, 1988, as amended February 25,1988, violated the aut...
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MEMORANDUM-DECISION, FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER These three motions came before the Court within the adversary proceeding commenced by Robin Ann Smith (“Debtor”) on March 3, 1987 to determine a student loan debt dischargeable pursuant to §§ 523(a)(8)(B) and 727 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1988) (“Code”). The Debtor’s motions for a p...
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SUPPLEMENTAL OPINION Because of my concern about this case and the feeling that I have not adequately assisted the district court, I am departing from my practice of over 33 years of taking no part in an appeal once that appeal has been filed with a higher court. Although this particular case involves but a small amount, its impact would be great upon the administration of Chapter 13 cases. I...
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OPINION CONVERSION OF NON-EXEMPT PROPERTY INTO TENANCY BY ENTIRETIES The debtors in these cases present the court with the sole question of whether a Michigan debtor who, on the eve of bankruptcy, converts non-exempt property into property held by the entireties may exempt that entireties property from the bankruptcy estate when the Debtor elects the State of Michigan exemptions purs...
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MEMORANDUM OPINION This cause comes before the Court on the Complaint filed by the Guardian of the estate of Mrs. Myrtle Posey, seeking to except from discharge a state court judgment for breach of the contractual obligation that Debtors undertook to provide living quarters, meals, and laundry services to Mrs. Posey. In or about November, 1985, the Probate Court of Columbiana County,...
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MEMORANDUM OPINION Introduction The plaintiffs, Gary L. Whitson, Jr., and Gary L. Whitson, Sr., filed a complaint under Bankruptcy Code Section 523(a)(9) to determine the dischargeability of separate indebtedness to them which is represented by a default state court judgment. The Court conducted a trial on this complaint and at the conclusion of trial took the matter under advise...
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MEMORANDUM ORDER GRANTING SUMMARY JUDGMENT Introduction On March 9, 1988, the plaintiff filed a complaint under Bankruptcy Code Section 523(a)(4) to determine the dischargeability of a debt evidenced by a state court judgment. Prior to trial, the plaintiff filed a motion for summary judgment under Fed. R.Civ.P. 56 contending that the state judgment rendered pre-petition was determinative of the ...
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AMENDED MEMORANDUM OPINION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On May 13,1988 came on to be heard the Motion for Summary Judgment filed by Plaintiffs against Debtor Emma Jane Nix (hereinafter referred to as “Debtor” or “Defendant”) to determine that Plaintiffs’ claims against Debtor are nondischargeable, as a matter of law, based on the judgment rendered upon a jury verdict b...
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MEMORANDUM OPINION AND ORDER There came for hearing the Amended Complaint to Turn Over Assets to Debtors *472 filed by Mack L. Killebrew and Delores B. Killebrew, the Debtors in this Chapter 7 proceeding. Having considered the pleadings, the memoranda submitted by counsel, and the testimony presented at the hearing, the Court is of the opinion that the relief sought by the debtors in the Amen...
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ALLOCATION OF TAX PAYMENT — VOLUNTARINESS The Internal Revenue Service (“IRS”) objects to the plan of reorganization proposed by Shoup’s Food Service, Inc. (“the Debt- or”) which will allocate tax payments to tax trust fund liability first,, thereby relieving the debtor’s responsible persons of their personal liability under 26 U.S.C. § 6672, at least to the extent such payments are made. The IRS...
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AMENDED ORDER SETTING HEARING ON MOTION REGARDING DISCLOSURE STATEMENT AND RELATED MATTERS The debtor in the above-captioned chapter 11 reorganization case has filed this date its “Ex Parte Motion Of Public Service Company For Order Fixing Time For Filing Of Disclosure Statement And Dispensing With Further Notice” in which it states that it intends to file its plan of reorganization on December...
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ORDER A hearing was conducted on January 21, 1988 on the various Motions to Transfer and Objections thereto as filed in the Chapter 11 proceeding of WPRV-TV, Inc., formerly known as WSTE-TV, Inc. (DIP). The first Motion to Transfer Case was filed by the Puerto Rico Telephone Company. RCA Corporation filed a Motion to Dismiss Case for Lack of Proper Venue or in the Alternative to Change the Venue ...
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ORDER On July 21, 1988, this Court conducted a hearing in the above matter regarding a Motion to Borrow Funds by Johnston Energy, Inc. (DIP) with accompanying Objections filed by creditors Hardy, Bauman, Michaud, Hudson and Abroms (Hardy, et al.) and by creditor Dayle James. Also coming on for consideration was a Motion to Dismiss by creditors Hardy, et al. with Objection made by the DIP. Appeara...
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ORDER On March 17, 1988, RCA’s (Creditor) Motion for Relief From the Automatic Stay or in the Alternative, Adequate Protection, with WPRV-TV’s (Debtor) Response and *229Objection, came on for hearing before this Court. Debtor appeared through counsel, Donald F. Marlar of the firm Pray, Walker, Jackman, Williamson & Marlar, and Creditor was represented by and through Warren L. McConnico of Savage,...
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ORDER On June 17, 1988, a hearing was conducted by this Court in the above captioned case with regard to the Motions of creditors, Sanders Oil Company (Sanders), American Express Travel Related Services Company (AmEx), Delaware County Bank (Delaware) and Anderson Wholesale Company (Anderson) for Appointment of an Interim Trustee, Appointment of a Trustee, and an alternative request for ap...
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ORDER On July 15, 1988, this Court conducted a hearing regarding WPRV’S (DIP) Objection to the Proof of Claim of creditor Major League Baseball (MLB). Appearances were made by Mr. Dale Gilsinger and Mr. Don Marlar on behalf of the DIP and Mr. Terry Thomas representing MLB. Evidence was taken in this matter at the time of the hearing. In addition, the parties were instructed to submit briefs statin...
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ORDER On September 9, 1988, this Court conducted a hearing in the two above captioned cases regarding Derby Refining Company’s Motion to Compel Debtors to Surrender Real Property and Equipment and Declare Master Agreement Terminated, filed in both cases on August 19, 1988. Also coming on for consideration was the Debtor-in-Possession’s Response to the Motion, filed September 8, 1988. Appearan...
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ORDER On July 14, 1988, this Court conducted a hearing in the above matter regarding the Debtor-in-Possession’s (DIP) Motion for Approval of Assumption of Unexpired Leases with accompanying Objections by Lessor, United Commercial Properties (United). Also coming on for consideration was United’s Motion to Modify Provision of Automatic Stay to Allow Completion of Forcible Entry and Detaine...
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ORDER On June 24, 1988, this Court received for consideration Defendant’s Motion for Summary Judgment and Brief in Support thereof in the above captioned adversary proceeding. Plaintiff’s Brief Opposing the Motion for Summary Judgment was submitted and received on July 20, 1988. *689After review of the Motions, the file and applicable law, we FIND: FINDINGS OF FACT 1. This matter is a “core” proce...
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ORDER This cause came before the Court on the Motion for Summary Judgment of Plaintiff, THE MAY COMPANY (“MAY CO.”) in an adversary action commenced in order to find a credit card obligation to be nondis-chargeable pursuant to 11 U.S.C. Sec. 523(a)(2)(A). Federal Rule of Civil Procedure 56 is made applicable to adversary proceedings by virtue of Bankruptcy Rule 7056. According to Fed...
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ORDER This matter came on before the Court on the Debtor’s Objection to a Proof of Claim filed by GORDON JEWELERS (“GORDON”) on January 14, 1988. GORDON filed a secured claim for Four Thousand, Eight Hundred Ten & 68/100 Dollars ($4,810.68) with a purchase money security interest in three (3) items: a ladies’ diamond chip cocktail ring, a gentleman’s diamond ring, and a gentlem...
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OPINION AND MEMORANDUM OF DECISION This matter came on for hearing on May 5, 1988. At that time the Court found that Debtor was not a “Family Farmer” within the meaning of 11 U.S.C. § 101(17) in that 80% of Debtor’s debt did not arise out of “Farming Operations” as defined in 11 U.S.C. 101(20). Debtor was given leave to file a brief in support of a Motion To Reconsider and Metropolitan Life Ins...
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ORDER Upon careful consideration of the record and the briefs filed herein, IT IS this 21st day of December, 1988, by the United States District Court for the District of Maryland, hereby ORDERED: 1. That this Court adopts the legal analysis and findings of the Bankruptcy Judge; 2. That this Appeal BE, and the same hereby IS, DISMISSED; 3. That the Clerk of the Court close this case; and 4. That t...
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MEMORANDUM OF DECISION Presented are cross motions for summary judgment in the instant adversary proceeding. K & R Mining, Inc. (Mining) filed a two-count complaint in which it alleges that the transfer of certain coal mining leases to Keffler Construction Company (Keffler Construction), with a sublease back to Mining subject to royalty payments, is not a lease of nonresidential real property sub...
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MEMORANDUM AND ORDER DENYING APPLICATION FOR TEMPORARY RESTRAINING ORDER Came on for hearing on October 14, 1988 the application of Debtor for a Temporary Restraining Order seeking to enjoin trial of a counterclaim against him in a trustee capacity in a state court suit, Cause No. 87-50975 in the 334th Judicial District Court, Harris County, Houston, Texas. No evidence was presented before this...
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OPINION There are three matters before the court: (1) debtors’ motion for summary judgment on their verified complaint to compel specific performance and for damages; (2) debt- or, Glassboro Housing Associates’ motion to assume a certain option contract; and (3) defendants’ cross-motion for summary judgment on debtors’ specific performance complaint. This court has jurisdiction over these...
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MEMORANDUM This adversary proceeding raises a complicated question about the right of a junior lienholder to require the holder of a senior lien to marshal its collateral. The defendant, American National Bank, made a loan to the debtor secured by equipment and accounts receivable. The debt currently is $25,540.66. The bank made the debtor a second loan secured only by accounts recei...
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OPINION This matter is before the Court on the complaint of the Bank of Findlay to determine dischargeability of a debt pursuant to Sec. 523(a)(6) of the Bankruptcy Code. 11 U.S.C. Sec. 523(a)(6). A trial was held, revealing the following facts: The Debtor, David Lee Sain, had an ongoing business relationship with the Bank for seven years, obtaining financing from them in connection with a ca...
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OPINION The issue before the Court is whether the automatic stay of 11 U.S.C. Sec. 362 should be lifted so that the Federal Deposit Insurance Corporation (“FDIC”) may proceed against the Debtor and other Defendants in a lawsuit pending in the Federal District Court. The Debtor, Terry Winterland, served as a member of the Board of Directors of the First National Bank of Danvers (“Bank...
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104 B.R. 226 (1988) In re Lance L. BROWER and Maurine Brower, Debtors. Phillip D. ARMSTRONG, Trustee of the Estate of Lance L. Brower and Maurine Brower, Plaintiff, v. Curtis ROHWEDER and Security State Bank, Wishek, ND, Defendants. Bankruptcy No. 85-05426, Adv. No. 87-7094. United States Bankruptcy Court, D. North Dakota. August 16, 1988. *227 Phillip D. Armstrong, Minot, N.D., for plaintiff. Jo...
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ADDITIONAL FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon remand from the United States District Court for the Southern District of Florida, 86 B.R. 290. for Additional Findings of Fact and Conclusions of Law and the Court being fully advised in the premises, does hereby make the following Additional Findings of Fact and Conclusions of Law: Janic...
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MEMORANDUM OPINION THIS MATTER came before the court on Trustee’s Motion to Dismiss (Fil. #20) on the basis that debtors do not meet the income requirements to qualify as “family farmers” under 11 U.S.C. § 101(17), and Confirmation of Debtors’ Plan, as amended, (Fil. # 30 and # 34). The only issue is whether or not more than fifty (50%) percent of the debtors’ gross income is derived from...
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ORDER In this Chapter 11 case, pending for decision are a motion for relief from the automatic stay filed by Security State Bank (Bank) and approval of the Disclosure Statement of the Debtors. This case originally was filed under Chapter 13 and then converted to Chapter 11 on September 17, 1987, when it became apparent the debt exceeded the jurisdictional limit applicable in a Chapter 13 case. ...
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ORDER GRANTING IN PART AND DENYING IN PART MOTION TO AVOID LIENS OF AMERICAN SECURITY CORPORATION AND GENERAL FINANCE CORPORATION This matter comes before the Court on two motions for avoidance of liens filed on April 11,1988, one seeking to avoid the lien of American Security Corporation (“ASC”) and one seeking to avoid the lien of General Finance Corporation (“GFC”). The mat *73 ter has bee...
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OPINION RE MOTION TO DISMISS PROCEEDING United States Small Business Administration (hereinafter “SBA”) filed a motion to dismiss, asserting that the debtors were ineligible for chapter 13 relief because their unsecured debts were not less than $100,-000.00 as required by 11 U.S.C. section 109(e). BACKGROUND SBA’s motion was filed approximately four months after the confirmation of the chap...
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ORDER ON MOTION REQUESTING DETERMINATION OF DISPOSABLE INCOME This matter comes before the Court on the Motion Requesting Court Intervention for the Determination of Disposable Income filed by the Trustee on February 22, *1022 1988. A hearing was held on April 4, 1988. The Court now decides as follows: 1. The Debtor filed for relief under Chapter 12 of the Bankruptcy Code on May 5, 1987. Th...
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ORDER This objection to discharge and dis-chargeability action came on for trial January 4,1988. Appearances were as noted in the record. The Court having considered memoranda and arguments of counsel, the testimony given at trial, and having reviewed the documentary evidence offered and received, now being fully advised in the matter, hereby makes this Order pursuant to the Federal and L...
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*959 ORDER DENYING CONFIRMATION OF FOURTH AMENDED PLAN AND DENYING MOTION TO STRIKE MEMORANDUM This matter comes before the Court on the objection to confirmation of the Debtors’ fourth amended plan by James E. Madden, Judy M. Madden and Marjorie M. Gadd (“the Objectors”) and on the Debtors’ Motion to strike a memorandum filed by the Objectors. For the reasons below, the Court de...
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MEMORANDUM OF DECISION Presented is the motion of Wolf Creek Collieries Company (Wolf Creek) seeking administrative expense treatment pursuant to 11 U.S.C. § 503(b)(1)(A) for advances made by it to the debtor for expenses incurred from January 1, 1988 to May 19, 1988. Objections to the motion were filed by P.W. Gifford, T.T. Colley and the debt- *864 or. A hearing was held on September 29, 19...
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ORDER On October 29, 1987, Elton E. Batchelor and Edith Sue Batchelor (debtors) filed a voluntary petition for relief under the provisions of chapter 12 of the United States Bankruptcy Code. The schedules, as amended, listed secured claims of $302,-148.54 and unsecured claims of $8,470.00. Real property, consisting of two tracts, was valued at $210,567.64 and personal property was valued at $61...
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MEMORANDUM OF DECISION This matter is again before the Court for a decision on the objection of a creditor and the trustee to the debtor, Jerome Sayler’s claim of exemption to a group of life insurance policies purchased shortly before the filing of the petition for relief in bankruptcy. The American State Bank of Great Bend, Kansas (hereinafter “ASB” or “the Bank”) and the trustee each filed a t...
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*862 DECISION ON ORDER DETERMINING TRUSTEE’S MOTIONS TO ASSUME LAND CONTRACTS TO BE CORE PROCEEDINGS PROCEDURAL AND FACTUAL BACKGROUND Scott T. Walton and Alison G. Walton are debtors in a voluntary Chapter 7 Bankruptcy Case in the United States District Court for the Southern District of Ohio, Western Division at Dayton under Case No. 3-88-00747. Herbert Ernst, Jr. is the Chapter 7 Trustee...
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SUPPLEMENTAL MEMORANDUM OPINION AND ORDER This matter is before the Court on United States Fidelity and Guaranty Company’s (USF & G) Complaint to Determine Lien Priority, Relief from Automatic Stay, and Request for Turn-Over of Property. The *447 Federal Aviation Administration (FAA), which is holding funds which are at issue here, has been dismissed as a party. Th...
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MEMORANDUM ON CLAIM OF JOSEPH M. DAVIS, SR. The matters before the Court are the trustee’s objections to two claims as a secured creditor filed by Polly Stiles in her capacity as conservator for her father, Joseph M. Davis, Sr. One secured claim is for the amount of $272,249.00 and the other secured claim is for the amount of $407,-449.00. The Court, at a hearing on April 22,1988, di...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT On June 16, 1988, came on to be considered the Motion for Summary Judgment filed by the Plan Trustee in the above-referenced case, and the Court, after a consideration of the filed briefs and pleadings, a review of the applicable authorities, and after hearing arguments of counsel, is of the opinion that said ...
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OPINION AND ORDER This matter came on at the preliminary hearing for the plaintiffs request for relief from automatic stay so that she could proceed in state court against the debtor and other defendants in a state court action that has been pending for many years prior to the debtor filing his petition in bankruptcy. Allowing a matter to proceed in another forum may constitute “caus...
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MEMORANDUM OPINION AND ORDER AWARDING FINAL FEES AND EXPENSES TO THE FIRM OF DAY, SAWDEY, FLAGGERT & PORTER, COUNSEL FOR TRUSTEE This opinion concerns a request for an allowance of fees and expenses incurred by the Day, Sawdey, Flaggert and Porter law firm (“Day, Sawdey firm”) in representing the Chapter 7 Trustee, W.D.M.T., Inc. (“Trustee”). At the close of this Chapter 7 case the C...
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DECISION AND ORDER The Plaintiffs, JOE MILLER, JAMES ARDIS and JERRY DWYER, brought this adversary proceeding to determine the dischargeability of a state court judgment rendered in their favor and against the Defendant, CHRIS A. HUL-VEY, in the amount of $3,184.00. At the pretrial conference, the Defendant agreed that the compensatory damages in the amount of $504.00 are nondischargeable...
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MEMORANDUM OF DECISION The debtor-plaintiff brought his complaint seeking (1) to require that the IRS marshall assets by proceeding first against plaintiffs former employer for collection of income taxes that were not withheld; and (2) for damages caused by the IRS violating the automatic stay when it applied a refund against defendant’s tax liability. The IRS has moved for summary judgment. The u...
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MEMORANDUM OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW PROCEDURAL POSTURE The plaintiff trustee, by Michael L. Meyer of Robins, Zelle, Larson & Kaplan, has brought a motion for partial summary judgment pursuant to Bankruptcy Rule 7561 to recover the $125,000 setoff by the defendant Citizens National Bank of Stevens Point against the indebtedness of the bankrupt, Northwest Liquor Industries, ...
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FINDINGS OF FACT AND MEMORANDUM OF LAW REGARDING HALLIBURTON COMPANY’S MOTION TO LIFT AUTOMATIC STAY On for consideration by this Court is Motion for Leave to Amend Informal Proof of Claim, filed by Halliburton Company (“Halliburton”) in the above referenced case. After a review of the facts of the case, consideration of the briefs filed by *80 counsel, and a review of the ap...
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OPINION This case is before the Court for trial on the Complaint to Declare an Exception to Discharge in Bankruptcy filed on October 6, 1982, by the Plaintiff, Clarence E. Couch (Couch), pursuant to 11 U.S.C. § 523(a)(6), *29 alleging that on March 27, 1981, the Debt- or, Dean R. Rubitschung (Rubitschung), violently assaulted Couch without cause or provocation resulting in the Plaintiff susta...
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MEMORANDUM OPINION The Court writes to announce its decision on the jurisdictional issues in the above referenced adversary proceeding. As the Courts are faced daily with the questions raised herein, this Memorandum Opinion serves to clarify the extent of bankruptcy court jurisdiction in the determination of the extent and validity of pre-petition liens *83 on homestead prope...
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OPINION AND ORDER At San Antonio, Texas on the 25th day of August, 1987, came on for hearing the Sixth Amended Application of John C. Calhoun & Company (“Calhoun”) for Interim Compensation. After consideration of the evidence and of the arguments of counsel the Court finds that the Application should be approved in part and denied in part. Calhoun has substantial experience in bankruptcy matters,...
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MEMORANDUM OPINION The Motion before this Court is one to determine the definition of the term “insol *78 vent” as it is used in § 546(c) of the United States Bankruptcy Code. The definition of this term is particularly important, since it will frequently determine the quantum of proof which a reclaiming creditor will have to meet. A review of the facts of this proceedin...
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ORDER ON OBJECTION TO CONFIRMATION AND VARIOUS MOTIONS OF RENT-A-CENTER OF AMERICA, INC. This matter is before the Court upon an objection to confirmation of the Chapter 13 plan proposed by debtors Willard and Lora Bailey. The objection was filed by Rent-A-Center of America, Inc. (“RACA”). The Court heard the objection and reviewed the post-hearing brief of RACA. The Court has jurisd...
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OPINION AND ORDER This matter is before the Court on the Motion for Summary Judgment filed by the Plaintiff, CLARENCE C. COUCH. The Debtor, DEAN R. RUBITSCHUNG, filed a Chapter 7 Petition on July 6, 1982. On October 6, 1982, the Plaintiff filed a Complaint to Declare an Exception to Discharge in Bankruptcy, pursuant to 11 U.S.C. § 523(a)(6), alleging that on March 27, 1981, the Debtor violently...
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OPINION Appellant, Damien Eastwood, appeals a bankruptcy court order granting summary judgment in favor of the Debtor, Pioneer Technology, Inc., on the Debtor’s action to recover a preferential transfer. For the following reasons, we AFFIRM the decision of the bankruptcy court. FACTS The Debtor filed a Chapter 11 petition on July 27, 1987. At all times relevant to this proceedin...
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MEMORANDUM OF OPINION AND ORDER In this Chapter 12 case, Production Credit Association (PCA), a secured creditor, seeks adequate protection from Paul R. Pretzer (Debtor) for use of its cash collateral. Pursuant to requirements of Rule 7052, Bankr. Rules, the following constitutes the Court’s findings and conclusions. This is a core proceeding under provisions of 28 U.S.C. § 157(b)(2)...
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OPINION This appeal arises from a judgment entered in favor of the Debtor, Richard Bittle-man (Appellee), in Herman Rappaport’s (Appellant) adversary proceeding to determine the dischargeability of a debt. The Debtor has not filed a responsive brief. FACTS Appellant filed an adversary proceeding against the Debtor on July 25, 1986. The complaint essentially alleged that the Debt- or leased certai...
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MEMORANDUM OPINION REGARDING REIMBURSEMENT OF EXPENSES OF FIRST REPUBLICBANK DALLAS, N.A. Came on to be considered the Motion of First RepublicBank Dallas, N.A. for Allow- *556 anee and Payment of Actual, Necessary Expenses of Indenture Trustee, For Payment of Reasonable Compensation for Services Rendered by Professionals Employed by Indenture Trustee and for Reimbursement of...
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ORDER ON MOTION FOR REHEARING On First Savings & Loan Association’s (“First Savings”) motion for rehearing, the court reconsiders the timeliness of First Savings’ objection to debtor’s homestead exemption under Bankruptcy Rule 4003(b). The debtor, Charles E. Cooke, Jr., did not originally claim the contested lots as part of his homestead exemption. At the meeting of creditors, however, Co...
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MEMORANDUM OPINION AND ORDER On January 4, 1988, the court held a hearing on the trustee’s motion to determine the reasonableness of a prepetition retainer the debtors Bernard and Kathleen Leff gave to their attorney. The trustee and the Leffs were represented by counsel at the hearing. After entertaining argument by counsel, the court took the motion under advisement. The Leffs filed a post-he...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter came before the Court on the removal petition of Laurence D. Boyer and Rosemary J. Boyer (“Debtors”). Oral argument was conducted in Syracuse, New York on February 16,1988 where the Debtors proceeded pro se. JURISDICTIONAL STATEMENT The Court has jurisdiction over this core proceeding pursuant to 28 ...
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MEMORANDUM OPINION This case involves the construction of the Texas Exemption Statute; §§ 42.001 and 42.002 of the Texas Property Code and the objection of First City Bank of Corpus Christi to the Debtor’s claim of exemptions. First City Bank of Corpus Christi has objected to the exemption claimed by the Debtor on the ground that their aggregate value exceeds the $30,000.00 limit provided for u...
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ORDER AUTHORIZING EMPLOYMENT OF ATTORNEYS WITH NOTICE THEREOF This matter comes before the Court on the amended application of Debtor, Tiffany Square Associates, Ltd., for approval of employment of the law firm of Holt, Ney, Zatcoff & Wasserman (hereinafter sometimes referred to as “Proposed Counsel”) to represent it as Debtor in Possession herein. Proposed Counsel filed an application fo...
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MEMORANDUM OPINION On 14 November 1988 Continental Casualty Company (“CCC”) and Walter Kellogg, Trustee (“Trustee”) each orally moved this Court to determine the Choice of Law issues only, recognizing that selection of the appropriate state’s substantive law is the threshold issue in CCC’s Complaint to Impose Constructive Trust. *550 CCC contends that Texas law should be applied because Tex...
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MEMORANDUM OPINION Louisiana Power and Light Company (LP & L) 1 has filed a motion for an order fixing the time for the debtors to assume or reject various executory contracts. The debtors oppose the motion on the basis that the contracts in question are utility agreements which are governed exclusively by the provisions of 11 U.S.C. § 366 and not 11 U.S.C. § 365. 2 ...
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MEMORANDUM AND ORDER Before the Court is the request of creditors Allied Eastern States Maintenance Corporation, Chatham County, Georgia, and Combustion Engineering, Inc., (the “Creditors”) as well as the Chapter 7 Trustee, James L. Drake, Jr., to subordinate the claim filed jointly by L.E. Miller, Jr., L.E. Miller, III, Frank B. Miller, and Robert N. Miller (the “Millers”). The Creditors filed a...
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ORDER DISMISSING BANKRUPTCY PETITION WITH PREJUDICE FOR FAILURE OF DEBTOR TO APPEAR AT § 341 MEETING THIS MATTER having come on for hearing on Wednesday, March 30, 1988 before the undersigned Bankruptcy Judge after due notice upon the Motion to Dismiss filed by attorney for Creditor PATRICIA SONDRA BLACKMON. It appearing to this Court that on July 14, 1987, the date and time set by this Court f...
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MEMORANDUM OPINION ON MOTION FOR SUMMARY JUDGMENT Facts: The IRS filed a “Motion for Relief From the Automatic Stay” on September 14,1987 in the case of United Refining Company, United Refining Company of Pennsylvania and Kiantone Pipeline v. the United States Department of the Treasury Internal Revenue Service. In their motion, they sought modification of the stay to allow the IRS to offset its p...
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OPINION AND ORDER The debtors, Robert Mark and Katherine Montgomery Cole, contend that Bruce H. Gould, Esquire, Mark Kantro, Esquire, and Leon and Harvey Leach violated the automatic stay which arose upon their filing of a Chapter 13 petition. The Coles seek to hold Gould in contempt for his actions taken as trustee under a deed of trust in completing his transfer of their home in Norfolk...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE CONTEMPT MATTER This matter was heard on July 7, 1988, pursuant to the Court’s Show Cause Order entered on June 23, 1988, for the purpose of determining whether contempt was committed by Clarence Dwight Pearson and for the purpose of fixing civil sanctions, compensatory or coercive, if contempt had been committed. FINDINGS OF FACT 1. In 1987, Clare...
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MEMORANDUM OPINION Debtor filed an Application For Dissolution of Partnership. The evidence indicated that the alleged partnership was entered into and ceased doing business prior to the filing of the bankruptcy petition and that debtor actually was seeking permission to proceed in state court under Mo. R.S., Section 358.320. This is not a core proceeding nor does it arise out of any part of the p...
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MEMORANDUM OPINION The parties have presented their respective cases by stipulation in this proceeding to determine dischargeability of a debt and *351 the relevant facts may be summarized as follows: 1 I. The debtor/defendant is a licensed insurance agent who operated James Insurance Service as a sole proprietorship at all times relevant to this dispute. Du...
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MEMORANDUM The official committee of unsecured creditors has filed a motion to expunge a proof of claim filed by the Internal Revenue Service. The challenged proof of claim was filed on August 21, 1986 and both parties agree that the bar date for proofs was December 15, 1985. The committee argues *34 that the IRS proof is untimely and so must be stricken. It does not challeng...
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MEMORANDUM OPINION INTRODUCTION On December 24, 1987, Apex Oil Company, a Missouri general partnership, and 51 subsidiary entities (hereinafter, collectively “Apex”) filed voluntary petitions under Chapter 11 of Title 11 of the United States Code. 1 The cases have been procedurally consolidated and Apex has continued in possession and operation of its various businesses. ...
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FINDING OF FACTS AND CONCLUSIONS OF LAW Based upon the Stipulations of the parties, the briefs filed and the arguments of counsel, the Court hereby makes the following Findings of Fact: 1. West Tech, Ltd. is a Florida limited partnership. 2. Pursuant to the Partnership Agreement dated December 29,1983, Ward Parkway Corporation is the General Partner of West Tech, Ltd. Exhibit A. 3. Ward P...
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MEMORANDUM DECISION FACTS Attorney Max Gors, of Gors, Braun and Zastrow, represents the Debtors in this case. On August 14, 1987, Mr. Gors applied for approval of an interim attorney’s fee application. James Wyly, representing Norwest Bank (“Norwest” or “Bank”), a creditor herein, objected to the application. A hearing on the application was held November 3, 1987, in Pierre, South Da...
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ORDER Charles E. Covey, Trustee, commenced this adversary proceeding seeking to recover a payment by the debtor to his former spouse’s attorneys on the ground that it constituted a preference under Section 547 of the Bankruptcy Code. At the pretrial conference, the parties agreed that the matter would be submitted to the Court for decision upon written briefs. According to the pretrial order, the ...
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The adversary proceeding before this Court was filed on May 12, 1987, and originated from the Chapter 11 bankruptcy of a Texas partnership known as “Brooks Brothers.” Both partners in Brooks Brothers filed for individual relief under Chapter 13 of the Bankruptcy Code on May 5, 1986. This opinion addresses the singular issue of whether partnership property can be claimed as business homestead in...
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ORDER ON APPLICATION OF DEBTOR TO DIRECT INTERNAL REVENUE SERVICE TO APPLY PAYMENTS BY THE CHAPTER 7 TRUSTEE ON 941 TAXES This matter comes before this Court on the application of J.U. Clements (former owner and officer of the Debtor) to require specific allocation of a payment from the estate by the Chapter 7 Trustee to the Internal Revenue Service. It appears that the claim of the IRS is ap...
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OPINION This matter is before the Court on the complaint of the Trustee objecting to the secured claim of the FDIC. The Trustee, the Debtors and the FDIC have filed motions for summary judgment. The material facts, which are undisputed, are as follows: The Debtor, Robert G. Dittmer, executed security agreements dated April 14, 1982, and April 30, 1982, in favor of the Mendon Sta...
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ORDER ON DEBTORS’ OBJECTION TO TRUSTEE’S PROPOSED SALE OF PROPERTY FREE AND CLEAR OF LIENS Debtors filed an objection to Trustee’s proposed sale of property free and clear of liens. Trustee filed a response to the objection. Creditors, Seventh Day Adventist, Southwestern Adventist College and Southwest Estate Services, Inc., subsequently joined in Trustee’s response. A hearing was held on...
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OPINION The issue before the Court is whether the state violated the automatic stay when it held a probation revocation hearing based on the Debtor’s failure to pay a criminal restitution obligation. The Debtor, Donald F. Birk, was convicted of the crime of leaving the scene of an accident on April 28, 1986, after entering a negotiated plea of guilty. He was sentenced to two years su...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action involves claims brought by James F. and Linda H. Chavers against Frank D. Frazier, his wife, Jamie Carter Frazier, a business owned by Mrs. Frazier known as Jamie, Inc., and a business owned by Mr. Frazier known as Conn-Aire, Inc. Initially filed in the Chancery Court for Williamson County, Tennessee, the action was removed to the United...
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*606 MEMORANDUM OPINION This adversary complaint was filed by the Trustee against Elizabeth Ann Kendrick, one of the debtors, and the Shelter Insurance Employees Retirement Plan and the Savings and Profit Sharing Plan For Employees of Shelter Insurance Companies, two employee benefit plans that Mrs. Kendrick is enrolled in as a result of her employment by Shelter Insurance Company. Said compl...
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*685 ORDER The matter before the Court is creditor Travelers Insurance Company’s (Travelers) motion to dismiss or convert this Chapter 11 bankruptcy case. A hearing was held on April 8, 1988. Gregory Gustafson and Joseph Deuhs represented the Debtor. Tony Beitz represented Travelers. Based on the arguments and memoranda of counsel, the record and files herein, and being fully adv...
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ORDER After due notice, a hearing was held September 13, 1988, on confirmation of Debtors’ Amended Chapter 13 Plan and valuation of the claim of First United Bank of Sidney (Bank). The Bank and the Debtors have stipulated to the value of the claim as far as principal and interest. However, the two parties cannot agree on the attorney’s fees and costs. The Bank’s Third Amended Proof o...
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109 B.R. 1006 (1988) In re John William STUTTERHEIM, Hazel Marion Stutterheim, Debtors. Bankruptcy No. 87-40890-7. United States Bankruptcy Court, D. Kansas. July 11, 1988. *1007 William H. Stowell, Phillipsburg, Kan., James H. Dodson, Beaver City, Neb., for debtors. Dale L. Somers, Patricia Hamilton, Eidson, Lewis, Porter & Haynes, Topeka, Kan., for First State Bank of Almena. ORDER GRANTIN...
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MEMORANDUM OPINION AND ORDER 1 I Statement of Proceedings This Chapter 7 case comes before the Court pursuant to James Dunn’s (hereinafter: “Creditor”) Objection filed October 20, 1987 to Carol Dee Dunn’s (hereinafter: “Debtor”) Motion to Avoid Lien filed September 15, 1987. The Creditor’s objection is based upon the grounds that the interest of the Creditor in the r...
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*561 DECISION DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S CROSS-MOTION FOR SUMMARY JUDGMENT Highland Industries, Inc. (“Highland”) entered into a contract with Coated Sales, Inc. (“Coated Sales”) on November 25, 1987, for the manufacture of certain fabric called sage green nomex. That contract is known as the Commission Weaving Contract, and is relate...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGEMENT I Statement of Proceedings This adversary proceeding came on for a bench trial on September 27, 1988 pursuant to Order of Court of August 10, 1988. A Pre-Trial Order was entered on January 19, 1988, and pre-trial statements were filed by the Defendant on February 8, 1988, and by the Plaintiff on March 15, 1988, as amen...
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ORDER At Butte in said District this 16th day of May, 1988. In this Chapter 11 case, the Debtors have filed a Motion to Alter or Amend the Order of April 12, 1988, awarding an oversecured creditor, Jean L. King, the sum of $14,-500.00 in attorney fees under Section 506(b) of the Bankruptcy Code. The Order further directed that such sum be paid within 90 days from confirmation. The Debtors’ motion...
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MEMORANDUM Plaintiffs (BICRO, et al.) commenced this proceeding seeking to enjoin .Defendant (Mackes) from proceeding with criminal prosecution of the debtor, its officers and/or employees in Magistrate’s Court in the County of Columbia, Commonwealth of Pennsylvania. Plaintiff Bicro is a Chapter 11 debtor charged with passing a check against insufficient funds. Plaintiffs, David Fidler and Ri...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on the motion of Marine Midland, Bank, N.A. (“Marine”), Defendant in the underlying adversary proceeding commenced by Byron and Barbara J. Craner, d/b/a Craner Tractor and Implement Co. (“Debtors”), to determine its secured status pursuant to § 506 of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330...
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MEMORANDUM OPINION AND ORDER I Statement of Proceedings Darwin E. Miller, as the original and sole Plaintiff in this adversary proceeding, filed his initial complaint versus the Debtor, James Darrel Krause (hereinafter: “Defendant”) on March 24, 1986, alleging that a certain indebtedness by the Defendant to *587 the Plaintiff is nondischargeable pursuant to 11 U...
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DECISION The question for resolution is: Where the proceeds of a contemplated sale by the chapter 7 trustee of property (in this case, common stock in Foster Pontiac, Inc. 1 ) will exceed the maximum exemption claimed by the debtor, and where the trustee did not file a timely objection to that exemption, did he waive his right to sell the stock and to retain the excess proceeds...
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MEMORANDUM DECISION ON COMPENSATION FOR ATTORNEY FOR TRUSTEE This contested matter 1 is before us on the application, of Meyers for compensation and expenses. The U.S. Trustee objects. We sustain the objection in part and overrule the remainder. In what is now one of the oldest converted Chapter 11 cases in this Court, Meyers moves for approval of an interim fee applicatio...
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ORDER ON REMAND This matter was remanded by the “Order Dismissing Appeals as Moot and Remand” entered by United States District Judge William J. Zloch on September 9, 1988. In accordance with the order of the District Court, it is hereby ORDERED as follows: 1. The order dated June 10, 1987 and published at In re Flanigan’s Enterprises, Inc., 75 B.R. 446 (Bankr.S.D.Fla.1987), is VACATED as moot. 2....
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OPINION This matter is before the Court on the Trustee’s objection to the claimed exemptions of the Debtors in their pensions with the Teachers’ Retirement System of the State of Illinois, Ill.Rev.Stat., Ch. 108%, para. 16-101 et seq., and the claimed exemption of Debtor, Charles W. Simpson, in an annuity with Franklin Life. The Debtors, Charles and Patricia Simpson, filed their voluntary p...
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MEMORANDUM Trial was held on May 3, 1988, concerning the claim for administrative expenses filed by AgriStor Leasing. Appearing on behalf of the debtor was Michael Heavey of Dwyer, Pohren, Wood, Heavey & Grimm, Omaha, Nebraska, and appearing on behalf of AgriStor Leasing was Patrick Nelson of Jacobsen, Orr, Nelson & Wright, *512 P.C., Kearney, Nebraska. This Memorandum is the...
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MEMORANDUM OPINION THIS MATTER came before the court for a hearing on an objection to the Chapter 13 plan of the debtors (Fil. # 12) filed by the United States Attorney on behalf of the Farmers Home Administration (“FmHA”). Three issues are presented for determination: 1. Is the good faith standard of 11 U.S.C. § 1325(a)(3) violated when the debt- or uses' Chapter 13 to impair a debt reaffirm...
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ORDER This matter comes before the court on the complaint of the Trustee to avoid an alleged preferential transfer of two Caterpillar D-5 Combo tractors, a Hyster trailer, and two pallets (collectively “the collateral”), pursuant to 11 U.S.C. § 547(b).1 The Trustee seeks the turnover of the collateral, or, in the alternative, judgment in the amount of $75,448.04. FINDINGS OF FACT The debtor, Roos...
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ORDER — OBJECTIONS TO CLAIM OF EXEMPTIONS On June 14, 1988, a hearing was held on the objections of Nancy Laing, creditor, and Robert D. Taha, Trustee, to the Debtors’ claimed exemptions in a pension and profit sharing plan and a 401(k) benefit plan. The following attorneys appeared on behalf of their respective clients: Richard B. Clogg for the objector, Nancy Laing; Robert D. Taha as Trustee; an...
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ORDER ON DEBTOR’S MOTION TO SET VALUE OF COLLATERAL Pursuant to notice, dated February 9, 1988, the Objection filed by General Motors Acceptance Corporation (hereinafter “GMAC”) to the valuation of its secured claim as proposed by the debtor in this Chapter 13 case, came on to be heard, and GMAC having appeared by Mr. Dalton H. Watkins, at the hearing of GMAC’s Objection held on February 29, 19...
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MEMORANDUM This case involves an action by a contractor against the bankrupt owner of a construction project and its principal lender. Contending that it was not paid its last draw request on the construction project, the contractor seeks compensatory and punitive damages, an equitable lien, and equitable subordination against the principal lender based upon a number of legal theories. The partie...
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TEXACO AND PENNZOIL MOTIONS TO DISMISS ICAHN GROUPS’ COMPLAINT FOR A DECLARATORY JUDGMENT VOIDING ARTICLE III OF TEXACO-PENNZOIL STIPULATION The debtors, Texaco Inc. and its two wholly owned financial subsidiaries, Texaco Capital Inc. and Texaco Capital, N.V. have moved to dismiss the Respondents' complaint dated January 12, 1988. The Defendant-Intervenor, Pennzoil Company (“Pennzoil”) has also...
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DECISION ON DEFENDANT’S MOTION TO DISMISS THE COMPLAINT, RELIEF FROM THE AUTOMATIC STAY AND SANCTIONS The defendant, Elgar Electronics Corporation (“Elgar”), has moved pursuant to Bankruptcy Rule 7012(b) to dismiss a complaint in an adversary proceeding commenced against it in this court by the debt- or, Rudaw/Empirical Software Products, Ltd. (“Rudaw”), or in the alternative, for summary...
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DECISION ON OBJECTION TO CLAIM This Chapter 13 debtor, Ernest Bennett, seeks to expunge the proof of claim filed by Ernest Crute. The only witnesses were the parties themselves. Each party claims to be more earnest than the other. Each has testified differently as to the extent of the renovation work that the debtor, Ernest Bennett, agreed to perform on Ernest Crate’s house. They also disagree ...
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Pennzoil Company (“Pennzoil”), the largest unsecured creditor of the debtor, Texaco Inc., with a state court judgment in excess of $10.3 billion, has moved for a protective order pursuant to Federal Rule of Civil Procedure 26(c) and Bankruptcy Rules 7026 and 9014. Pennzoil requests that any transcripts of the depositions taken in connection with Objections to Confirmation of the Second Amended ...
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DECISION ON MOTION TO SET ASIDE ORDER APPOINTING TRUSTEE The debtor in the above captioned Chapter 7 case has moved to set aside the order of this court, dated February 10, 1988, which approved the report and application of the United States trustee for the appointment of Anna C. Pitter as the elected permanent trustee of this estate. The debtor contends that the trustee was elected by a ...
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DECISION ON MOTION TO STRIKE JURY DEMANDS Kraus-Thomson Organization, Limited (“KTO”), a creditor holding a disputed secured claim filed against the debtors, McCorhill Publishing, Inc. (“McCorhill”) and its assignee, New Castle Associates (“New Castle”), has moved to strike the jury demands filed by the Chapter 11 trustee and the debtors in connection with their answers and counterclaims ...
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DECISION ON ORDER TO SHOW CAUSE WHY EXAMINATION SHOULD NOT BE PRECLUDED Kraus-Thomson Organization (“KTO”), a creditor of the debtor, McCorhill Publishing, Inc. (“McCorhill”) for a debt arising out of KTO’s sale of a reprint and publishing business to the debtor, seeks a protective order pursuant to Bankruptcy Rule 7026 and Rule 26(c) of the Federal Rules of Civil Procedure. KTO wishes to...
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DECISION ON COMPLAINT SEEKING ORDER FOR DECLARATORY JUDGMENT This is an adversary proceeding pursuant to Bankruptcy Rule 7001(2), (9) commenced by Kraus Thomson Organization Ltd. (“KTO”), a Liechtenstein corporation qualified to do business in New York, to obtain a declaratory judgment fixing the amount of its liens against real estate occupied by the debtor, McCorhill Publishing, Inc. (“McCorhill...
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DECISION ON MOTION FOR AN ORDER DISMISSING ANSWER OF McCORHILL PUBLISHING, INC. Kraus-Thomson Organization, Ltd. (“KTO”), a creditor holding a disputed secured claim against the Chapter 11 debtor, McCorhill Publishing, Inc. (“McCorhill”), has moved pursuant to Bankruptcy Rule 7012(b) and Fed.R.Civ.P. 12(b)(6) for an order dismissing the answer containing defenses and counterclaims filed by McCo...
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DECISION ON MOTION FOR SUMMARY JUDGMENT AND RELIEF FROM AUTOMATIC STAY The plaintiff has filed a motion for summary judgment in accordance with Bankruptcy Rule 7056 and Federal Rule of Civil Procedure 56(a), seeking a determination that obligations owed by the debtor to him, if any, are non-dischargeable pursuant to 11 U.S.C. § 523(a)(4). The plaintiff asserts that facts found by a state ...
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DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY Plaintiff, David Feldman, has filed an adversary proceeding against the debtor, Helene Kaufman, seeking to have his claim against her determined to be nondischargeable under 11 U.S.C. § 523(a)(2)(A), in that she allegedly obtained property from the plaintiff by false pretenses and actual fraud. A second cause of action in the complaint alleges...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This cause comes before the Court on the motion of Life Industries Corporation (“LIC”) for the reclamation of goods pursuant to § 546(c) of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp. 1988) (“Code”). Marine Midland Bank, N.A. (“Marine”) has requested that LIC’s relief be restricted to an administrative...
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OPINION Before ASHLAND, MOOREMAN, and VOLINN, Bankruptcy Judges. The debtors Maxine and Robert Slimick appeal from a judgment sustaining trustee’s objection to the debtors’ claim of exemption. We dismiss the appeal as untimely- BACKGROUND The debtors filed a Chapter 11 bankruptcy on April 21, 1983. The case was converted to a Chapter 7 bankruptcy on February 16, 1984. In their initial schedules t...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This matter comes before the Court on the oral motion of defendant Michael Angelo Bisignani (“Debtor”) for attorney’s fees and sanctions at the close of the trial of an adversary proceeding commenced on January 14, 1988 by Floyd Pucello (“Pucello”) pursuant to § 523(a)(6) of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (W...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL JUDGMENT GRANTING COMPLAINT FOR RECLAMATION This is an action in the nature of reclamation,2 brought by the plaintiffs with respect to the following items: “144 PC % X 4 X 12 FIRECODE GYPSUM BOARD 38 PC % x 4 x 10 FIRECODE GYPSUM BOARD 12 PC % x 4Ao WATER RESISTANT GYPSUM BOARD 3 PC % x %o REGULAR GYPSUM BOARD PC 6" x 16 25 GAUGE STUDS 10 PC 2% x 8 2...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the Trustee’s motion on behalf of Cook United (Debtor) for an order extending the time for the Debtor to assume or reject certain executory contracts and unexpired leases of nonresidential real property. Notice of the hearing was made upon all parties entitled thereto. Pursuant to Rule 7052, Bankruptcy Rules, the followi...
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MEMORANDUM OPINION This adversary proceeding is before the Court on plaintiffs motion for partial summary judgment as to the first cause of action against Dayton Securities Associates on the limited issue of liability for the return of all consideration received by the defendant in connection with the sale of its partnership interests. A hearing on the motion was held February 11, 1988, at the co...
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MEMORANDUM An evidentiary hearing was held on November 3, 1988, on the amended complaint of the trustee seeking to avoid a transfer of certain firearms and related equipment from debtor to defendant. Christopher Connolly of Thompson, Crounse, Pieper & Brumbaugh, Omaha, Nebraska, appeared for the trustee; Timothy J. Pugh of McGrath, North, Mullin & Kratz, Omaha, Nebraska, appeared for Sigarms, Inc...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This cause comes before the Court on the motion of the New York State Higher Education Services Corporation (“NYSHESC”), the defendant in the adversary proceeding commenced by Robin Ann Smith (“Debtor”) pursuant to § 523(a)(8)(B) of the Bankruptcy Code, 11 U.S.C.A. §§ 101-1330 (West 1979 & Supp.1987) (“Code”). NYSHESC see...
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MEMORANDUM OF DECISION This matter is before the Court on Debt- or’s complaint to determine the extent and validity of a lien claimed by Wetterau Portland, Inc. (“Wetterau”) against certain proceeds received by Debtor pursuant to a divorce judgment. A hearing was held on November 30, 1987, and both parties have *179had the opportunity to submit briefs. The Court finds the following facts: Debtor p...
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MEMORANDUM OPINION The matter presently before the Court is a Complaint for Avoidance and Recovery for Preferential Transfer filed by James A. Lewis, Esq. (hereinafter Trustee) against Custom Heating Company and Robert De-vine, t/d/b/a Custom Heating Company (hereinafter Defendants). The Court finds that Defendants received an avoidable preferential transfer under 11 U.S.C. § 547 and must...
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ORDER There came to be heard the objection of the Hancock Bank to the Debtors’ proposed Chapter 13 plan. The bank objected to the failure of the debtors to provide present value on the bank’s secured claim under § 1325(a)(5)(B)(ii). Having considered the pleadings, memo-randa and oral arguments of counsel for the parties, the Court is of the opinion that said objection is well taken and should be...
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MEMORANDUM OPINION AND ORDER The matters before the court are cross-motions for summary judgment in this adversary proceeding filed by the chapter 11 debtors, William W. Spruill and Ellen T. Spruill, against South Atlantic Production Credit Association (“PCA”) on November 4, 1987. A hearing on the summary judgment motions was held in Raleigh, North Carolina, on February 29, 1988. The...
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MEMORANDUM OPINION AND JUDGMENT 1 I Statement of Proceedings The Debtor commenced this Chapter 7 case on April 29, 1986. On December 3, 1986, the Lake County Department of Public Welfare (hereinafter: “County”) as Plaintiff filed this adversary proceeding versus the Debtor alleging that a certain indebtedness to it by the Debtor in the sum of $27,948.50 is nondischar...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS COMPLAINT FOR RECOVERY OF PREFERENCE AND FINAL JUDGMENT OF DISMISSAL This is an action brought by the trustee in bankruptcy for the purpose of recovering from the defendant, as a preference within the meaning of § 547 of the Bankruptcy Code, some $2,032,800.00 which was transferred to it within the year next preceding bankruptcy to pay a preexisting lo...
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ORDER This proceeding began more than three years ago, with the filing of debtor’s petition for relief under Chapter 11 on December 12, 1984. On February 17, 1987 a creditor, Lincoln National Bank, filed a motion to dismiss, convert, or appoint a trustee. That motion was premised, inter alia, upon debtor’s incompetence and gross mismanagement, as well as unreasonable delay to the prejudice of...
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ORDER The motion by the Bank of Woodland for dismissal, or in the alternative, relief from the automatic stay having been submitted for decision on February 1, 1988 will be denied so long as the conditions set forth below have been satisfied. The debtor has demonstrated that the subject property is *634necessary to an effective reorganization. The movants will be adequately protected pursuant to t...
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MEMORANDUM A lift-stay motion was filed by Federal Home Loan Mortgage Corp. (“Federal”) in this case. That motion was filed in disregard of the explicit provisions of paragraph 3 of this Court’s September 29,1986 Order of Confirmation in this case,1 and *172despite the clear language of this Court’s October 3, 1986 cover letter sent to Federal’s counsel enclosing a copy of the Confirmation Order. ...
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ORDER DENYING THE THIRD MORTGAGEES’ MOTION FOR ADEQUATE PROTECTION IN THE' FORM OF CURRENT AND CONTINUING INTEREST PAYMENTS UNDER THE THIRD MORTGAGE BONDS Upon consideration of the Motion dated May 3, 1988 by First Fidelity, N.A., New Jersey (“First Fidelity”), as trustee under the Third Mortgage Bond Indenture, dated February 15, 1986 as amended and supplemented (the “Third Mortgage Inde...
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ABSTRACT OF RULING OF SEPTEMBER 29, 1988 RELATING TO SECTIONS 362(b)(4) AND (b)(5) (AUTOMATIC STAY EXCEPTION) ISSUES 1) Whether prosecution under the False Claims Act, 31 U.S.C. §§ 3729-33, is included in the exception from the automatic stay provided in §§ 362(b)(4) and (b)(5) of the Code. 2) Whether there is cause sufficient to allow relief from the automatic stay under § 362(...
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MEMORANDUM AND ORDER This is an appeal, pursuant to 28 U.S.C. § 158(a), from .an order of United States Bankruptcy Judge John W. Creahan (W.D. N.Y.), entered June 25, 1987, which denied the appellant’s application for an allowance of compensation to the law firm of Grove, Hogan, Hogan, Douglas and Pope (“Hogan”). The application of Hogan was denied because the Bankruptcy Judge found that the se...
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OPINION Presently before the court are identical motions made in each of the above-captioned cases requesting recusal of the undersigned pursuant to 28 U.S.C. § 455. This court finds the motions legally insufficient and factually without merit. Re-cusal is unwarranted since no reasonable person, “were he to know all the circumstances, would harbor doubt about the judge’s impartiality”, Potashnick...
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ORDER At Butte in said District this 5th day of October, 1988. In this Chapter 7 case, hearing was held on September 6, 1988, on the Trustee’s Objection to Debtor’s claim that her Beneficial Flexible Purchase Retirement Annuity qualified as exempt property. After considering the evidence introduced, this Court took the matter under advisement, granting the parties ten (10) days to file suppor...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the Court on the Complaint for Determination of Nondis- *69 chargeability of Debt file by Doran Services, Inc., d/b/a Servicemaster North/South (“Servicemaster”) on April 20, 1987. Trial was held April 5, 1988. The Court now makes its findings of fact and conclusions of law. Findings of Fact 1. In ...
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ORDER Based on the foregoing Report and Recommendation of the Bankruptcy Court on the Motion for Abstention and Remand, the District Court holds that abstention is appropriate and therefore orders that the above referenced adversary proceeding is hereby DISMISSED. REPORT AND RECOMMENDATIONS TO DISTRICT COURT ON MOTIONS FOR ABSTENTION AND REMAND OF THE ABOVE ADVERSARY PROCEEDINGS ...
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ORDER Upon consideration of INSLAW Inc.’s motion for court assistance to obtain independent handling; the opposition thereto of respondents United States of America and the United States Department of Justice; the testimony of witnesses and other evidence presented during the hearing held May 29 and June 1, 2 and 3, 1987; and the Court having found by clear and convincing evidence that, s...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW (Counts I, II and III of the Complaint) TABLE OF CONTENTS Page INTRODUCTION. 93 FINDINGS OF FACT. 93 I.THE NATURE OF INSLAW’S BUSINESS AND ITS DEVELOPMENT OF PROMIS. 93 A. Origins of INSLAW. 93 B. Formation of INSLAW as a “For-Profit” Corporation and the Development of its Proprietary Enhancements.-96 C. The Nature...
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