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All Reporters → bankr-lexis → Volume 1990

Opinions in bankr-lexis Volume 1990

OPINION The instant motion by LIBERTY SAVINGS BANK (hereinafter referred to as “Liberty”) for relief from the automatic stay to foreclose upon its security interest in a beachfront duplex owned by the Husband-Debtor, FREDERIC A. SHAPIRO (hereinafter “the Debtor”), located at 3104-06 Wesley Avenue, Ocean City, New Jersey (hereinafter “the Premises”), causes us to consider the validity, und...
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MEMORANDUM AND DECISION This is a motion by the Plaintiff, Daryl B. Frederes (hereinafter “Frederes”) for partial summary judgment. Essentially, the *420Plaintiff is seeking summary judgment to determine that Foremeadows Investment, Ltd. (hereinafter “Foremeadows”) and Larry James Ferguson (hereinafter “Ferguson”) breached the contract and to determine partial damages. The following facts are undi...
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OPINION A. INTRODUCTION We are called upon to confirm, if possible, one of two alternative plans of reorganization submitted by Donald L. Wolk (hereinafter referred to as “Wolk”), one of two general partners (the other being Philip J. Banks (“Banks”) 1 ) of Debtor 222 Liberty Associates, a New York Limited Partnership (“the Debtor”). The Plans under consideration are Wolk’...
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A. FINDINGS OF FACT 1. The Debtor and Plaintiff, SAMAR FASHIONS, INC. (hereinafter “the Debt- or”), a retailer/wholesaler of women’s wear, filed the Chapter 11 bankruptcy case underlying this proceeding on February 17, 1988. This proceeding was filed on August 18, 1989, and tried on December 6, 1989. 2. The Defendant MATISSE INTERNATIONAL, INC. (hereinafter “the Defendant”), requested...
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109 B.R. 484 (1990) In re INDUSTRIAL SUPPLY CORPORATION, Debtor. Robert L. STOBER, Liquidating Trustee, Plaintiff, v. FLORIDA STEEL CORPORATION, Defendant. Bankruptcy No. 87-6438-8P1, Adv. No. 89-163. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 3, 1990. *485 Robert L. Stober, Clifton, N.J., for plaintiff. Ronald Bergwerk, Jacksonville, Fla., for defendant. FINDINGS OF F...
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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 Diane L. Jensen as Trustee in Bankruptcy (Trustee) which seeks a determination by this Court that certain transfers by the Debtor to Raymond Building Supply Corporation (Defendant) within 90 days of the filing of the Chapter 7 Petition...
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MEMORANDUM OPINION AND ORDER This matter comes on before the Court pursuant to the December 1, 1989 hearing on Defendant’s Motion for Protective Order and Defendant’s Motion to Quash Subpoena to Leslie Davis. The plaintiff, Bartlett Futures, Inc., appeared through its counsel, Cynthia F. Grimes and Irvin Ness, of the law firm of Stinson, Mag & Fizzell. The defendant appeared by and throug...
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ORDER ON MOTION TO DISMISS COMPLAINT FOR FAILURE TO FILE TIMELY COMPLAINT THIS IS a Chapter 7 liquidation case and the matter under consideration is the timeliness, vel non, of the Complaint filed by Thomas R. Garza and Eleanor Garza (Plaintiffs) which seeks a determination that a debt allegedly due and owing by the Debt- or to the Plaintiffs shall be declared to be non-dischargeable pursuant t...
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ORDER ON JOINT MOTION AND STIPULATION FOR ORDER ALLOWING CHARGING LIEN CLAIM THIS CAUSE came on for consideration upon a Joint Motion and Stipulation for Order Allowing Charging Lien Claim filed by Uiterwyk Corporation (Debtor) and Manufacturers Hanover Trust Company (MHT) in the above-captioned Chapter 11 case. The Court has considered the Motion and Stipulation, together with the record, and has...
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MEMORANDUM OPINION The debtors, Louis and Elizabeth Stein-brecher, have initiated an adversary proceeding challenging a secured proof of claim filed by Mid-Penn Consumer Discount Company. The claim was filed in the amount of $8,441.11 and is based upon a series of loan agreements which began in August 1985 between these parties. The debtors contend in their complaint that the claim of Mid...
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MEMORANDUM OPINION Plaintiff Horowitz Finance Corporation (hereinafter “Horowitz”) seeks in this adversary action to have debts allegedly owed to it by Defendant/Debtor Virginia C. Hall (hereinafter “Debtor”) which arise out of a Guaranty and Suretyship Agreement (Count I) and Commitment Letter (Count II), respectively, declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). ...
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MEMORANDUM OPINION This matter is before the Court on the submission of cross motions for summary judgment by both the Plaintiff and Defendant in this adversary proceeding. For the reasons stated below, summary judgment is granted in favor of the Plaintiff, and the debt owed to the Plaintiff of Eighteen Thousand, Five Hundred Seventy & 58/100 Dollars ($18,570.58), plus interest...
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109 B.R. 755 (1990) In re CARDINAL INDUSTRIES, INC. In Joint Administration With Cardinal Industries of Florida, Inc., Debtors. Bankruptcy Nos. 2-89-02779, XX-XXXXXXX and XX-XXXXXXX. United States Bankruptcy Court, S.D. Ohio, E.D. January 4, 1990. *756 *757 David G. Heiman, Jones, Day, Reavis & Pogue, Columbus, Ohio, for debtors. John R. Climaco, Climaco, Climaco, Seminatore, Lefkowitz & ...
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CORRECTION ORDER On this 2nd day of January, 1990, a Motion to Stay Pending Appeal filed by Farm Credit Bank of Wichita (“FCB”) (Docket Entry No. 292) with a Response to the Motion filed by the Debtor (Docket Entry No. 306) and a Reply to the Response by FCB (Docket Entry No. 321) came before this Court for consideration. Additionally, this Court reviewed its Order entered on October 24, 1989...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER having come before the Court for non-jury trial on Wednesday, May 24, 1989, with continuations on Wednesday, May 31, 1989, and Thursday, November 30, 1989; and with the Court having heard argument of Counsel, having reviewed and considered the law and the evidence presented, having conducted a “view” of the premises, and being otherwise fully ad...
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND MEMORANDUM OPINION This is a Chapter 11 case. The matter under consideration is a motion to dismiss filed by the United States Trustee. The motion was brought pursuant to 11 U.S.C. § 109 and alleges that the debtor, St. Augustine Trust, is a family trust and therefore ineligible for relief under the rehabilitative provisions of Title 11. The debtor cont...
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OPINION In an ardent attempt to avoid the loss of their home, the debtors have brought a number of matters to this bankruptcy court for resolution. Prior to their filing a voluntary petition in bankruptcy on June 9, 1989, the debtors’ home had been sold at a foreclosure sale by the second mortgagee, Joseph C. Perry, Inc. In this circuit, such a prebankruptcy sale would terminate a chapter...
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MEMORANDUM OPINION ON MOTIONS FOR DEFAULT JUDGMENT, SUMMARY JUDGMENT, AND RELIEF UNDER 11 U.S.C. § 362(d) AMENDED AND REISSUED FEBRUARY 7, 1990 In these four Adversary actions, Petti-bone seeks a declaration that the state court personal injury suits filed against it by the Defendants during Pettibone’s reorganization are null and void and also seeks an injunction enjoining the conti...
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MEMORANDUM OPINION Debtors move in this proceeding for reimbursement of attorney’s fees and costs under § 523(d) of the Bankruptcy Code and sanctions under Bankruptcy Rule 9011 (the *951 “Motion”). The Motion arises from the filing of a complaint under § 523 by plaintiff against debtors. A trial was not had on the complaint because plaintiff failed to appear at a status confe...
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ORDER In this Chapter 7 case, Yellowstone Valley Properties, a co-partnership, and Safeco Insurance Company of America have filed a complaint against the Debtor, Kenneth L. Eames, seeking a determination that the debt owed each creditor is non-dischargea-ble under Section 523(a)(4) and (6) of the Bankruptcy Code. The parties have submitted the matter on an agreed statement of facts which center a...
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MEMORANDUM DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT ON OBJECTION TO CLAIMS BACKGROUND On July 17, 1986 (the “Filing Date”) and thereafter, the LTV Corporation and sixty-six of its subsidiaries, (collectively, the “Debtors”), filed for reorganization under Chapter 11 of the Bankruptcy Code (the “Code”) and were continued in the management, operation and possession of their busi...
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BRUCE I. FOX, Bankruptcy Judge: The principal narrow issue before me requires a determination as to the appropriate procedural rules to be utilized by the district court when it withdraws the reference of an adversary proceeding pending in bankruptcy court. Normally, this would be a concern addressed to the district court itself. However, the debtor has filed an objection to the proofs of ...
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ORDER — APPLICATION OF UNSECURED CREDITORS COMMITTEE FOR ORDER APPROVING ITS EMPLOYMENT OF ATTORNEYS AND GRANTING CERTAIN OTHER RELATED RELIEF On November 9, 1989, a hearing was held on the Application of the Unsecured Creditors Committee for an order approving its employment of attorneys and granting certain other related relief. The following attorneys appeared on behalf of their respec...
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109 B.R. 182 (1990) In re Tommy Anthony BRADLEY, Malinda Ann Bradley, Debtors. Bankruptcy No. 88-02263-R. United States Bankruptcy Court, E.D. Virginia, Richmond Division. January 4, 1990. *183 Joyce E. Miles, Richmond, Va., for debtors. Stephen A. Chaplin, Chaplin, Papa & Gonet, Richmond, Va., for SEAA. Robert E. Hyman, Richmond, Va., Chapter 13 Trustee. MEMORANDUM OPINION BLACKWELL N. SHEL...
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DECISION ON MOTION FOR RELIEF FROM AUTOMATIC STAY PURSUANT TO 11 U.S.C. § 362(d) The “Karate Kid”, Ralph Macchio, and his former business agent, Marie Pastor, have moved their contractual sparring match to this arena for a judicial decision. Ralph Macchio and Dabaday, Inc. (hereinafter collectively referred to as “Movants”) seek an order from this court granting relief from the automatic ...
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MEMORANDUM OPINION The debtor-plaintiff, Aspen Data Graphics, Inc., has initiated this adversary proceeding to avoid and recover, on the basis of 11 U.S.C. § 547(b), certain prepetition *679 transfers made to the defendants. 1 The parties basically agree that the facts are undisputed, and suggest that the issue before me is whether the debtor possessed an interest ...
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MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT AND MOTION FOR RELIEF FROM AUTOMATIC STAY TO ALLOW DISBURSEMENT OF FUNDS This core proceeding 1 came on for hearing on December 21, 1989 on motion by McCain and Associates, Inc. (“McCain”) for summary judgment and for relief from the automatic stay to allow it to disburse funds. McCain submitted a Memorandum of Law and...
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MEMORANDUM AND DECISION ON DEBTOR’S MOTION TO DISMISS ALAN H.W. SHIFF, Bankruptcy Judge. The debtor moves to dismiss his chapter 7 case. For the reasons that follow, the motion is denied. BACKGROUND On December 4, 1987, United Jersey Bank/Commercial Trust (“UJB”) filed an involuntary petition under chapter 7 of the Bankruptcy Code against the debtor. Code § 303(h) provides t...
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STATEMENT OF THE CASE Frederick Hampel, d/b/a Buccaneer Vans & Sales, Debtor, Defendant, filed a petition under Chapter 7 of the Bankruptcy Code on March 31, 1989. Randall L. Eaves, Plaintiff, filed a complaint to determine the dischargeability of a debt on July 24, 1989. Plaintiff contends that a debt owed to him by Defendant is nondischargeable under section 523(a)(6) of the Bankruptcy ...
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MEMORANDUM OPINION This matter comes to be heard on the final fee application of Laventhol & Hor-wath (“L & H”) pursuant to 11 U.S.C. §§ 330 and 331 and Federal Rule of Bankruptcy Procedure 2016 for a total allowance of $15,705.00 in compensation and reimbursement of expenses in the amount of $440.00. Proper notice was given to all creditors and parties in interest pursuant to Federal Rul...
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MEMORANDUM OPINION AND ORDER This matter comes on for hearing before the Court on August 16, 1989, pursuant to debtor/plaintiff Gary R. Donahue’s Verified Complaint for Order Enjoining State Court Enforcement of Alleged Lien and Order to Determine Extent of Alleged Lien. The debtor/plaintiff appeared in person and through his attorney, John T. Flan-nagan. The defendant, Linda K. Parker, a...
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*404 Memorandum of Decision The debtor owns and operates a 252-room hotel in Santa Rosa, California. It filed its Chapter 11 petition on June 15, 1988. Its proposed plan of reorganization is now pending before the court. On May 18, 1989, the debtor filed a “Notice of and Request for Determination and Reassessment of Tax Liability.” The debt- or therein requested the County of Sonoma to reas...
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OPINION Presented here is the classic conflict between a buyer asserting warranty coverage and a seller with a claim for repairs and a lien as security. Less common is the seller’s additional claim for storage charges, and lien, for the period that the seller retained possession under its repairman’s lien. A trial having been held, I uphold the repairman’s lien but deny the storage lien. Geor...
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STATEMENT OF THE CASE Ricky Lynn Vaughn, Debtor, filed a petition under Chapter 13 of the Bankruptcy Code on August 1, 1984. Debtor filed his Chapter 13 plan on August 15, 1984. The Court confirmed Debtor’s plan on October 5, 1984. The Court entered an order allowing Debtor to extend his plan beyond thirty-six months on June 18, 1987. Camille Hope, the standing Chapter 13 Trustee, Plaintiff, filed...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon the defendant’s motion to dismiss. A pre-trial hearing was held on June 28, 1989, and upon the memoranda of law submitted, the Court enters this Memorandum Opinion. FINDINGS OF FACT Relief under Chapter 7 of Title 11, United States Code, was ordered in favor of the debtor on March 24, 1988. On March 18, 1988, ...
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ORDER ON MOTION FOR RECONSIDERATION The Reorganized Debtor noticed for hearing objections to claims filed by creditors. The ground asserted for the objections presently before the Court was that the creditors had received avoidable preferences and therefore their claims must be disallowed under 11 U.S.C. § 502(d). Some creditors opposed the claim objections, variously asserting contemporaneou...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO DEBTORS’ AMENDMENT TO EXEMPTIONS The court has before it an objection filed by John F. Weaver, Trustee, to an “Amendment To Exemptions” filed August 22, 1989, by the debtors. 1 By their amendment, the debtors claim an exemption pursuant to Tenn.Code Ann. § 26-2-104 (Supp. 1989), quoted infra, in retirement benefits due Ernest G. B...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration in this Chapter 7 case is a four count com *75 plaint filed by Plaintiff, Roxani M. Gillespi, Insurance Commissioner, to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(4) in Count I, 523(a)(2)(B) in Count II, and 52...
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MEMORANDUM OF DECISION This matter came before the Court on the Debtor’s Motion to Avoid Lien of City Finance to the extent it impairs exemptions. City Finance objected to the Debt- or’s motion on the grounds that the avoidance was not authorized under Bankruptcy Code Section 522(f)(2). After consideration of the applicable law, it is the opinion of this Court that the Debtor’s Motion is ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT This matter is before the Court upon the motion of Investment Hotel Properties, Ltd. (debtor) for summary judgment on its Complaint to determine the nature, extent, validity and priority of the liens of New West Federal Savings and Loan Association (New West). Both the debtor and New West filed briefs in support of their respective positions. This Cour...
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110 B.R. 9 (1990) In re Daniel Deanda TAMEZ, Jane Estorga Tamez, Debtors. Bankruptcy No. 89-06504-M13. United States Bankruptcy Court, S.D. California. January 3, 1990. Mark A. Smith, The Bankruptcy Legal Center, San Diego, Cal., for debtors. James C. Kostas, Huffman & Kostas, San Diego, Cal., for objecting creditor. David L. Skelton, San Diego, Cal., for Chapter 13 Trustee. ORDER ON CONFIRM...
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DECISION Before this court is a motion within an adversary proceeding seeking the cancellation of a notice of pendency (or lis pen-dens ) 1 filed by the plaintiff on certain real property owned by the defendant. For the reasons stated below, this Court holds that the motion to cancel the notice of pendency is denied. FACTS The debtor herein, American Motor ...
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MEMORANDUM DECISION This matter is before the Court on the objection of debtors, Joseph & Valeria Brady, to the claim of the Internal Revenue Service (IRS). The IRS filed a secured claim for a 100 percent penalty of $47,-250.34, which is the unpaid employee withholding taxes for American Electronics Sales, Inc. (American), for the third and fourth quarters of 1982 and the first quarter of...
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MEMORANDUM OPINION 1. A petition under Chapter 11, title 11 of the United States Code, 11 U.S.C. § 101 et sequentia, was filed on June 9, 1988 by the Debtor-in-possession, Snowden’s Landscaping Co. (hereafter Debtor). 2. On June 27, 1989, Debtor filed a disclosure statement and proposed plan of reorganization. On August 31, 1989, the Court approved the disclosure statement accompanyi...
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OPINION At issue, once again, in light of certain statements by the district court in In Greenley Energy Holdings of Pennsylvania, Inc., 102 B.R. 400, 405-06 (E.D.Pa. 1989) (hereinafter “Greenley II”), disapproving our statements on the same subject in a decision reported as In re Greenley Energy Holdings of Pennsylvania, Inc., 94 B.R. 854, 854-55, 857-58 ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint of Auto Dealer Services, Inc., for the return of unearned commissions from Vince Whibbs Imports, Inc. A trial was held on August 31, 1989, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: *69 Findings of Fact ...
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MEMORANDUM RICHARD S. STAIR, Jr., Bankruptcy Judge. The debtor, Daniel James Nunley, filed a complaint July 6, 1989, seeking to avoid a judicial lien under 11 U.S.C.A. § 522(f)(1) (West 1979). 1 Facts essential to a resolution of the issues before the court are stipulated in written “Stipulations Of Fact” filed October 26, 1989. Briefs have been filed and oral argument was ...
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MEMORANDUM ON TRUSTEE’S MOTION FOR RECONSIDERATION OF ALLOWANCE OF CLAIMS OF INTERNAL REVENUE SERVICE On May 25, 1989, the court entered an order denying the trustee’s objections to the allowance of Claims No. 30 and 12 filed in the C.H. Butcher, Jr. and Shirley R. Butcher cases, respectively, by the Internal Revenue Service.1 This order was accom*776panied by a “Memorandum On Trustee’s Objections...
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OPINION In the decision-making process, it is important to be consistent. However, it is more important to be correct. A consistent line of incorrect decisions is more properly nipped in the bud than promulgated purely for the sake of consistency. Thus, despite acknowledgement of our statements in colloquies with the interested parties in this case suggesting that the Debtor in this ...
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DECISION ON DEBTORS’ MOTION TO REOPEN THE CASE The debtors seek to reopen this Chapter 7 “no asset” case in order to amend Schedule A-3 to include a creditor previously omitted. Although the Notice of Motion does not indicate the specific grounds for reopening the case, 1 the attorney’s affirma *601 tion in support indicates that “[djebtors, by inadvertence, failed to list a [sic] unsecured...
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OPINION Resolution of the instant objections by the Debtor, a former manufacturer of products containing asbestos, to a series of claims filed by co-obligors of claims for asbestos-related damages requires us to consider the scope of 11 U.S.C. § 502(e)(1)(B), which requires disallowance of contingent claims for reimbursement or contribution from a debtor. Following the lead of our colleag...
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*468 MEMORANDUM OPINION The Chapter 11 Trustee, James M. Ford (no relation to the undersigned), filed an Application for a First and Final Allowance of Limited Trustee’s Fees and Reimbursement of Costs and Expenses. The fees requested were $21,502.50, and the reimbursement of costs and expenses requested were $3,412.29. The Debtor filed an Objection to the requested fees, costs, ...
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OPINION Background The debtor, Wheeling-Pittsburgh Steel Corporation, filed its Petition for Reorganization under Chapter 11 of the Bankruptcy Code on April 16, 1985. In September, 1988, Bethlehem Rail Acquisition Corporation, Inc. (“Bethrail”) submitted a $20 million bid for property owned by the debtor known as the Monessen Rail Mill (“Rail Mill”). The sale was approved by this court and ...
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This adversary proceeding 1 is before us on the complaint of Colorado to determine *29 whether unemployment benefits given Debtor were obtained by fraud. We find the benefits were obtained by fraud, and accordingly, hold the debt is not discharge-able in bankruptcy. Colorado instituted this proceeding to collect an overpayment of unemployment benefits to Debtor. The...
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110 B.R. 34 (1990) In re S & D FOODS, INC., f/k/a Consolidated Pet Foods, Inc., Debtor. CONSOLIDATED PET FOODS, INC., et al., Plaintiff(s), v. MILLARD REFRIGERATED SERVICES, INC., et al., Defendant(s). Bankruptcy No. 89 B 06041 J, Adv. No. 89 J 1230. United States Bankruptcy Court, D. Colorado. January 26, 1990. Garry R. Appel, Michael J. Guyerson, and Darrell Daley, Esq., Rothgerber, Appel, ...
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109 B.R. 963 (1990) In re Doris D. COBY, Debtor. Bankruptcy No. BK-S-87-2615-LBR. United States Bankruptcy Court, D. Nevada. January 26, 1990. *964 Mark Segal, Las Vegas, Nev., for debtor. David Sorensen, IRS Dist. Counsel, Las Vegas, Nev., for respondent. MEMORANDUM DECISION AND ORDER LINDA B. RIEGLE, Bankruptcy Judge. Doris Coby filed a chapter 13 bankruptcy petition on September 24, 1987. The...
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MEMORANDUM OPINION CAME ON for consideration the Combined Application of Weil, Gotshal & Mang-es for Compensation as Counsel for Jack R. Stone, Jr., Court Appointed CEO and as Special Counsel for Dan Lain, Trustee (“Application”). On December 5, 1989, the court conducted a hearing on the Application. After hearing WGM’s presentation and the objections by Partners and PCA, the Court took t...
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MEMORANDUM OPINION AFTER TRIAL OF ADVERSARY PROCEEDING In this lawsuit, the plaintiffs seek a determination that the debt due them arising from the diminution in market value of the farm and home they sold to the debtors is excepted from the debtors’ discharge in *251 bankruptcy pursuant to 11 U.S.C. § 523(a)(6), which states: (а) A discharge under section 727, 1141, 1228(a), 1228(b), or 13...
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MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW The trustee objects to allowance of the secured claim Peter R. Barbara filed against chapter 7 debtor Otis & Edwards, P.C. based upon a February 5,1981 promissory note and security agreement executed by Peter R. Barbara & Associates, P.C. 1 This adversary proceeding is before the court following a trial on the trustee’s compla...
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MEMORANDUM OPINION AND ORDER ON DEBTOR’S MOTION TO ASSUME LEASE In this Chapter 11 case, most of the assets of the debtor have been liquidated by prior sales. However, the debtor asserts that it wishes to reorganize by leasing certain real property known as the former International Harvester facility (hereinafter “Harvester”), and pursuant to that goal, the debtor filed a motion to assume...
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DECISION This proceeding is an offshoot of that most bitter and contentious form of litigation — the divorce of parents and the disputed custody of their minor children. The plaintiff was the former wife’s attorney. The debtor/defendant is the former husband, who is obligated by the judgment of divorce to pay a portion of the attorney fees incurred by his former wife in the divorce action. The ...
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DECISION AND ORDER Heard on October 4 and 5, 1989 on the Trustee’s, Complaint, brought pursuant to 11 U.S.C. § 547, to recover allegedly preferential payments made by the debtors to Fordson Associates (“Fordson”). Based upon the stipulated facts in the Joint Pretrial Order, the testimony of the witnesses, and the documentary evidence, we make the following findings of fact: The debto...
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DECISION AND ORDER Heard on December 11, 1989 on the Motion of the debtor, Blackstone Potato Chip Co., Inc. (“Blackstone”), for Leave to Reject an Executory Contract with Mr. Popper, Inc. (“Mr. Popper”), or in the alternative, to avoid the transfer of its interest in a license agreement, pursuant to 11 U.S.C. § 548. Mr. Popper has interposed a number of defenses to the motion, and submits...
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MEMORANDUM AND ORDER In September 1989, R & K Drilling Company (“R & K”) filed a motion for adequate protection in which it alleged that, as the operator of oil wells in which the debtors held fractional working interests, it was entitled to reimbursement of operating expenses attributable to the debtors’ interests and so should be afforded adequate protection as a condition of its contin...
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DECISION ON ORDER TO SHOW CAUSE FOR ORDER NULLIFYING AUTOMATIC STAY The Chapter 13 debtors, Peter S. Pappa-lardo and his wife, Jane P. Pappalardo (“debtors”), oppose the motion by Alliance Funding Company (“Alliance”), which seeks to annul the automatic stay under 11 U.S.C. § 362 so as to validate its mortgage foreclosure sale which took place approximately 24 minutes after the debtors filed th...
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DECISION AND ORDER Heard on January 3, 1990, on the Motion of the Trustee to Charge Garnishee, the Bank of New England, requesting the turn over of funds in its (BNE’s) possession. In opposition to the Trustee’s motion, Capital Growth Advisors, Inc., has filed a Motion for Clarification of our Order dated September 8, 1989, 103 B.R. 379, requesting the Court to declare that the “[djefendant may o...
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MEMORANDUM AND ORDER This adversary proceeding was commenced by Complaint filed June 7, 1989, by which the plaintiff, Julie Streich, seeks a determination that divorce decree provisions by which the defendant/Debtor, Scott Osterberg, would remain responsible for certain marital obligations are in the nature of alimony and support and thus nondis-chargeable under section 523(a)(5) of the United ...
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OPINION A. INTRODUCTION This Opinion is in response to a Motion filed by Andrew L. Stone, the Defendant, to Dismiss the Complaint filed by the Plaintiffs in this proceeding. We shall dismiss the Complaint and this proceeding, but on jurisdictional grounds rather than the basis urged by the Defendant, i.e., that the Plaintiffs are bound to the terms of the Trustee’s con...
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DECISION AND ORDER Heard on September 27, 1989 on the Complaint of the May Department Stores Company (“May D & F”) to determine the dischargeability, pursuant to 11 U.S.C. § 523(a)(2)(A), of a debt in the amount of $2,330.22 incurred by the debtor through an open end credit plan. The debtor, Kurtz, denies the allegations of the complaint, insists that she always intended to pay for the it...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on an Application for Payment of Administra *850 tive Expenses, filed by Crossland Credit Corp. (Crossland). The Debtors, Lloyd and Lorraine Carmichael, are represented by Attorney Stephen G. Balsley. Crossland is represented by Attorney Joel A. Schechter. This Memorandum Opinion and Order shall represent fi...
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MEMORANDUM DECISION The question before the Court is whether the trustee may direct allocation of payments made to the IRS on post-petition trust fund tax liabilities incurred during the Chapter 11 case. Upon due consideration, the Court finds she has authority to permit the trustee to do so where exceptional or special circumstances exist, or it would be equitable to do so. The Cour...
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FINDINGS AND CONCLUSIONS UPON RULE TO SHOW CAUSE AND UPON TWO 'MOTIONS OF THE DEBTOR Introduction— The above-styled case is pending before this Court upon the debtor’s petition filed pursuant to title 11, chapter 11, United States Code, on September 30, 1988. On November 21, 1989, the ease came on to be heard before the Court upon the following matters: 1. A rule to show cause as to why the...
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MEMORANDUM AND DECISION This matter is before the Court on the application of William A. Muoio, the Chapter 11 Debtor-In-Possessions’ former attorney, for an Order approving compensation and reimbursement. 1 An application covering both cases in the amount of $75,-331 ($73,860.00, attorney fees plus $1,471.00, disbursements) was submitted on July 10, 1989. Affidavits in opposit...
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MEMORANDUM OPINION Monroe Tire Service, Inc., Movant, filed a motion on October 11, 1989, asking the Court to compel the adoption or rejection of a contract by Wall Tire Distributors, Inc., Debtor. A hearing was held on November 8, 1989. The Court asked the parties to submit briefs on the issues presented. The Court now publishes its opinion. Movant and Debtor entered into an “Asset ...
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MEMORANDUM This is an adversary proceeding to quiet title to property sold pursuant to a confirmed Chapter 11 plan of liquidation. Carolyn and Dr. R. Gene Cravens, Sr. allege that the purchasers (Wood and Munro) have defective title because the Cravens did not receive a § 363 notice. Because Carolyn and Dr. Cravens failed or chose not to assert their interests before consummation of this ...
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OPINION The Chapter 7 trustee’s final account shows total receipts of $9,832.31 and a balance on hand of the same amount. The attorneys for the debtor have filed an application for compensation in the amount of $3,287.50, which when added to the $2,000 retainer received, would be $5,287.50. They also claim reimbursement of expenses of $995.03. Debtor’s counsel knew upon filing t...
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MEMORANDUM OPINION The plaintiff in this adversary proceeding, Barbara Lopez, seeks a determination that a default judgment entered against the Debtor/defendant, Angelita Martinez, in a state court proceeding is not discharge-able under 11 U.S.C. § 523(a)(6). 1 The state court complaint that the plaintiff filed against the Debtor/defendant alleged that the Debtor had willfully ...
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MEMORANDUM DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on January 9, 1990 on plaintiffs motion for summary judgment in its action to avoid, pursuant to 11 U.S.C. § 544(a), a lien claimed by defendants Henry and Joseph Bukowski. The appearances were as follows: Kip Kaler appeared for the...
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ORDER In this Chapter 7 case, the Trustee has filed an objection to the Claim of exemption by the Debtor in a Montana Power Company stock retirement account owned by the Debtor, or his beneficiary. The matter has been submitted to the Court by memorandum filed by the parties. Debtor claims as exempt under Section 31-2-106(3), Mont.Code Ann. and 11 U.S.C. Section 522(b)(2)(A), 1...
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110 B.R. 341 (1990) In re Donald Ray GADLEN and Brenda Joyce Gadlen, Debtors. Bankruptcy No. 89-11209-B. United States Bankruptcy Court, W.D. Tennessee, E.D. February 1, 1990. *342 David H. Jones, Memphis, Tenn., for Leader Federal Bank for Sav. Lloyd A. Utley, Jackson, Tenn., for debtors. Ernie H. Gray, Jackson, Tenn., George Stevenson, and George Emerson, Memphis, Tenn., Chapter 13 Trustees. ME...
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MEMORANDUM OPINION AND ORDER ON CREDITOR’S MOTION FOR RELIEF FROM STAY AND DEBTORS’ RESPONSE THERETO PURSUANT TO 11 U.S.C. § 506 This core proceeding 1 is before the Court on the joint motion of the Small Business Administration and the Bank of Bartlett for relief from the automatic stay and the debtors’ response thereto, which raises the issue whether the Chapter 7 debtors may...
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MEMORANDUM OPINION AND ORDER The matter presently before the court is a motion filed by the defendants, Zions First National Bank, N.A. (“Zions”) and the Lockhart Company (“Lockhart”) (hereinafter referred to collectively as “defendants”),1 to dismiss the above-captioned adversary proceeding commenced by the Chapter 11 trustee, Peter W. Billings, Jr. (“trustee”). A hearing was held on October 12, ...
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DECISION DENYING MOTION TO CONVERT CASE The Debtor has moved to convert this case to a case under Chapter 13. The case was earlier a Chapter 11 case and was converted to Chapter 7 pursuant to 11 U.S.C. § 1112. The Debtor thus no longer has the right to convert his case to a Chapter 13 case pursuant to 11 U.S.C. § 706(a). The Debtor, citing In re Sensibaugh, 9 B.R. 45 (Bankr.E.D.Va.1981), argues th...
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AMENDED OPINION ON MOTION FOR RECONSIDERATION The United States has moved for reconsideration of the Court’s conclusion that under Section 6701 of the Internal Revenue Code the appropriate penalty to be assessed against Mitchell for his involvement in the preparation and/or approval of the false tax return of Cascade Hydro for the year 1985 is $10,000. 109 B.R. 434. The Government maintains that ...
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ORDER ON MOTIONS OF CREDITOR AND DEBTOR TO REMOVE TRUSTEE AND ON MOTIONS OF CREDITOR TO PRESERVE CREDITORS’ INTERESTS AND TO DISMISS Susan Lundborg (“Lundborg”), a former wife and a creditor of the debtor, has filed motions to remove the chapter 7 trustee, to preserve creditors’ interests, and to dismiss this case. The debtor has also filed a motion to remove the trustee. The debtor’s mot...
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OPINION Plaintiffs filed this adversary proceeding to determine the dischargeability under section 523 of the Bankruptcy Code of the Debtor’s obligation to pay to the Mohamed A. Atassi, M.D., Inc. Pension Trust Fund (the “Atassi Trust”) $100,000 together with interest at 12 percent per annum and to pay to Dr. Mohamed A. Atassi a fee of $15,000 less the interest due to the Atassi Trust. Th...
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MEMORANDUM DECISION Creditor Dewey County Bank, has brought motions for relief from the automatic stay and to convert debtor Wilfred Reinbold’s case from one under Chapter 12 to one under Chapter 7 of the United States Bankruptcy Code. A hearing on the motions was held January 25, 1990. After hearing the testimony of various witnesses, considering the arguments of counsel, and reviewing t...
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DECISION The matter before the court concerns entitlement to fees by the debtors’ attorney, William R. Slate. Hearing on applications for compensation and the trustee’s final report was held on January 3, 1990. The trustee, Louis L. Croy, appeared in person, but the debtors’ attorney, William R. Slate, was unable to appear at the hearing. Except for an objection by the U.S. Trustee that was f...
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MEMORANDUM OPINION SETTING FORTH THE STANDARD TO BE USED IN THE DISTRESS TERMINATION OF THE DEBTOR’S PENSION PLAN This matter comes before the Court on the Motion of the Debtor, Resol Manufacturing Company, Inc., for Authority to Terminate Its Pension Plan (“Motion for Authority to Terminate”), the Response of the Creditor, the Pension Benefit Guaranty Corporation (“PBGC”) to the Debtor’s...
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*620 MEMORANDUM OPINION National Traveler, Inc., Debtor, Movant, filed a petition under Chapter 11 of the Bankruptcy Code on October 18, 1989. Movant filed a “Motion to Reject Exec-utory Contracts and Unexpired Leases” on December 6, 1989. The motion named a number of entities as Respondents. The only entity, however, that responded to the motion was Speedway Waste Disposal, Inc....
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MEMORANDUM OPINION These are Findings of Fact and Conclusions of Law on the Motion of the Debtor, Glasstream Boats, Inc. under § 363(c)(2) of the Bankruptcy Code for use of cash collateral belonging to the Creditor, Marine Midland Business Loans, Inc. Debtor is a boat and trailer manufacturing company with manufacturing facilities in Georgia, Florida, and Arkansas. Creditor is conceded to h...
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DECISION ON MOTION TO CONFIRM PREJUDGMENT ATTACHMENT At issue is the propriety of confirming pursuant to Fed.R.Civ.P. 64, Fed.R. Bankr.P. 7064 and Article 62 of the New York Civil Practice Law and Rules (CPLR) (McKinney 1980 & Supp.1990) an ex parte order of attachment against the property of defendant Robert Pincus (Pincus). The ex parte order is grounded in an affirmation submitted by the trust...
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MEMORANDUM In the instant adversarial proceeding, filed on November 29, 1989, JOHN G. BERG (hereinafter “the Plaintiff”), seeks, in a pro se Complaint 1 filed pursuant to 11 U.S.C. § 1144, to have this court revoke for fraud its Order confirming the Plan of Reorganization of a large Chapter 11 Debtor, TM CARLTON HOUSE PARTNERS, LTD. (hereinafter “the Debtor”). On December 15, 1...
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ORDER ON OBJECTION TO EXEMPTION The debtor has claimed on her Schedule B-4 as an exemption from the claims of creditors: “Travelers Indemnity Co. annuity, exempt pursuant to Florida Statute 222.14.- This statutory provision, Fla.Stat. § 222.14, provides an exemption for: “the proceeds of annuity contracts issued to citizens or residents of the state.... ” The objection of a creditor, ...
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ORDER This adversary proceeding is before the Court on plaintiff’s motion for summary judgment. The plaintiff, the debtor’s former wife, requests a determination that the debtor’s obligation to pay the plaintiff’s attorney’s fees as required in a divorce decree is nondischargeable under 11 U.S.C. § 523(a)(5). The facts are as follows. The plaintiff and the defendant-debtor were husband and wi...
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OPINION A. INTRODUCTION Consolidated for trial and disposition before us are a motion of Anna Conners (hereinafter “the Defendant”), the vendor under a contract within the scope of the Pennsylvania Installment Land Contract Law, 68 P.S. § 901, et seq. (hereinafter cited as “the ILCL”), in which the Debtor, Miriam Rowe (hereinafter “the Debtor”), is the vendee for the sale ...
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MEMORANDUM OF OPINION ON BUSINESS HOMESTEAD 1 This case first came before the court in November, 1988. The issue at that time was whether the Debtor’s business homestead claim was subordinate to the bank’s note and deed of trust that secured the property. The court held that the Debtor’s property did not take on homestead characteristics until the Debtor occupied the property. Bec...
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109 B.R. 943 (1990) In re Jeanette KARELIN, a/k/a Jeanette Smith, Debtor. Jeanette KARELIN, a/k/a Jeanette Smith, Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Appellee. BAP No. NC-89-1467 VMeJ, Bankruptcy No. 587-05576-JRG, Adv. No. 880040. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted November 15, 1989. Decided February 1, 1990. *944...
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FINDINGS AND CONCLUSIONS The trial of this matter was conducted on February 5, 1990. The parties appeared by counsel and presented oral argument upon the record. Upon consideration of the oral argument, the parties’ memoranda of law, and the record as a whole, the Court announced its findings and conclusions and orders from the bench. This is a core proceeding pursuant to 28 U.S.C. Section 15...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the court upon the complaint of Designed Flooring Distributors, Inc. (the “creditor”) against Sylvester M. Wagenti (the “debtor”) 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 w...
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ORDER The matter being considered here is the Chapter 13 Trustee’s Objection to Claim No. 4 on behalf of Landmark Bank. The proof of claim was filed for the amount of $1,363.70 plus interest at the rate of 18.17% per annum from March 28, 1985, the date *431 of entry of a non-bankruptcy court judgment in favor of the Claimant. The Trustee has objected to the allowance of post-...
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OPINION Sharon Steel Corporation (“Sharon”) filed its voluntary petition under Chapter 11 of the Bankruptcy Code on April 17, 1987. In accordance with Bankruptcy Rule *206 3003(c)(3), this court fixed October 3, 1988 (the “Bar Date”) as the last day for filing proofs of claim. Atlantic Richfield Company (“ARCO”) filed this Motion for Leave to File a Proof of Claim (“Motion”) ...
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MEMORANDUM OPINION Haywood Properties, Ltd., The Centre at Westgate, Ltd., and other plaintiffs filed a complaint to deny the debtor’s discharge pursuant to provisions of 11 U.S.C. § 727(a)(3), (5) and (7). Subsequently, Pinnacle Point Partners, Ltd., was allowed to intervene in the adversary proceeding as an additional plaintiff. Just prior to trial several of the original plaintiffs wer...
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MEMORANDUM OPINION AND ORDER Dewey Beach Enterprises, Inc., is a Chapter 11 debtor. In its petition filed March 17, 1989, it listed the Internal Revenue Service as the holder of a disputed claim in the amount of $370,337. On August 31, the IRS filed a proof of claim in the amount of $886,354.26, which it amended on September 12 to increase the amount to $1,286,175.26. (Claim Nos. 47 and 48). De...
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OPINION AND ORDER I. Introduction The instant proceeding is before the Court upon an objection to confirmation (“Objection”) of the Chapter 13 plan proposed by the debtors, Jerry E. and Kaye M. *306 Carver (“Debtors”). The Objection was filed by Continental Insurance Company (“Continental”) and presented at the November 14, 1989 hearing to consider confirmation o...
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110 B.R. 440 (1990) In the Matter of Eudean M. BUZZELL and Patricia K. Buzzell, Debtors. Bankruptcy No. BK89-80687. United States Bankruptcy Court, D. Nebraska. January 17, 1990. *441 David Pederson, North Platte, Neb., Chapter 7 trustee. Bert E. Blackwell, McCook, Neb., for debtors. MEMORANDUM TIMOTHY J. MAHONEY, Chief Judge. Hearing was held on October 6, 1989, regarding trustee's objection to...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: CONFIRMATION OF PLAN On January 3 and January 29,1989, hearings to confirm the Plan of Reorganization *490 of Mid Pacific Airlines, Inc. (“Debtor”) were held before this Court, with Gregory Conlan, Esq. representing the Debtor, Curtis Ching, Esq. representing the Office of the United States Trustee (“OUST”), Walter Davidson, Esq., r...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on February 2,1990, upon the Debtors’ Motion to Confirm their Second Amended Chapter 13 Plan (the “Plan”) and the Objection thereto filed by Tri-State Bank (“Bank”). The Bank objects to confirmation alleging: 1. The Plan has not been proposed in good faith under the standards of Fly-gare v. Boulden, 709 F.2d 1344 (10th Cir.1983). 2. The...
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ORDER UPON REPORT AND APPLICATION OF THE UNITED STATES TRUSTEE FOR AN ORDER APPROVING SELECTION OF TRUSTEE This matter is before the Court upon the Report and Application of the United States Trustee for an Order Approving Selection of Trustee filed January 8, 1990 (“Application”). The Official Committees of Unsecured Creditors of both Debtors opposed the Application and the Debtors filed...
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DECISION The Plaintiff, William H. Christison, Trustee (TRUSTEE), brought this proceeding pursuant to Section 547 of the Bankruptcy Code, seeking to recover an alleged preferential transfer to the Defendant, the Internal Revenue Service (IRS). Presently before the Court is the TRUSTEE’S motion for summary judgment. The factual background is undisputed. The Debtor, Hearing of Illinois...
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DECISION ON MOTION TO RESCIND . CONTRACT OF SALE The Chapter 11 debtor, Joseph T. Kolin-sky, and his nondebtor corporation, Conjo Realty Corp. (“Conjo”), as plaintiffs, seek to rescind a contract for the sale of property in City Island, New York to the defendants, Joseph P. Gagliano, James G. Goren, *129 Alexander M. Goren and their corporation, known as G.B.G., Inc., to whic...
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MEMORANDUM OPINION In this chapter 7 case, the corporate debtor has moved the court for an order directing the trustee to pay it the sum of $1,000.00, the “additional general exemption” to which it asserts entitlement pursuant to the provisions of K.R.S. 427.160. We have reviewed memoranda in support of and in opposition to the motion. For the reasons which follow, we will overrule the debtor’s mo...
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OPINION A. INTRODUCTION/PROCEDURAL HISTORY This proceeding provides us with a rare opportunity to further explain and illustrate the scope of our previous decision regarding the rights of parties who claim to be remaining members of tenant families in public housing, which we articulated in In re Adams, 94 B.R. 838 (Bankr.E.D.Pa.1989). We hold that the Adams dec...
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MEMORANDUM AND ORDER Plaintiff Bankruptcy Trustee seeks to compel the Trustee of a Profit Sharing Plan & Trust * to pay to the bankruptcy estate that portion of the Plan’s assets attributable to Debtor, Michael Mead. The Plan in question was first established on June 30, 1965 by the predecessor to Mead and Sons, Inc., a Missouri Corporation, and has been amended from time to ti...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Objection to All Claims for Indemnification for Past Actions of Former Officers and Directors (“Objection to Indemnification” herein) filed by the Debtor on September 20, 1989, the Response to Objection to All Claims for Indemnification for Past Actions of Former Officers and Directors and Motion for Hearing Thereon (“...
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ORDER GRANTING MOTION TO DISMISS On October 18, 1987 Douglas Bruce Cook and Pamela Ann Cook (“the Debtors”) filed their joint petition seeking relief under Chapter 7 of Title 11. At the time of the filing of this case the Debtors also filed their Schedule of Income and Expenses, Statement of Affairs, Bankruptcy Schedules, Statement of Intention as to Reaffirmation of Contracts and Stateme...
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MEMORANDUM On November 18, 1989, the date of a final continued hearing on confirmation of the Debtor’s Chapter 13 Plan of Reorganization and Objections to the Proofs of Claim of the Internal Revenue Service (hereinafter “the IRS”), Ronald J. Harper, Esquire (hereinafter “Harper”), the Debt- or’s counsel, suddenly moved to dismiss the entire underlying Chapter 13 case. Although recognizing...
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OPINION AND ORDER ON MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR RELIEF FROM THE AUTOMATIC STAY This matter is before the court upon a motion filed by Peoples Banking Company, The Peoples Banking & Trust Company, Guernsey Savings Bank, Hobart Federal Savings & Loan Association, Peoples Savings Bank, First Federal Savings Bank of Marion and James F. Kacsmar & Company, C.P.A.’s (“Kacsmar ...
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DECISION RE ADMINISTRATIVE CLAIM STATUS This matter is before the court on Andres Lumber and Supply Company’s (Andres) request for allowance of its claim as an administrative expense pursuant to 11 U.S.C. Section 503. The trustee and the unsecured creditors’ committee have timely objected to Andres’ request. The court has jurisdiction of this matter pursuant to 28 U.S.C. Section 1334 and the Ge...
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110 B.R. 731 (1990) In re METROPOLITAN HOSPITAL, Debtor. Bankruptcy No. 89-12542F. United States Bankruptcy Court, E.D. Pennsylvania. February 14, 1990. *732 Virginia R. Powel, Asst. U.S. Atty., Philadelphia, Pa., for movant, Dept. of Health and Human Services. Marvin Krasny, Leonard P. Goldberger, Anthony J. Pasquariello, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, Pa., for movant, Offici...
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OPINION A. INTRODUCTION The instant contested matter obliges us to revisit an issue which we previously addressed in In re Pinder, 83 B.R. 905, 908-12 (Bankr.E.D.Pa.1988); and In re Caster, 77 B.R. 8, 14 (Bankr.E.D.Pa.1987): the scope of 15 U.S.C. § 1612(b), a provision of the federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (hereinafter “TILA”...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Debtor’s Complaint to Determine the Value of Lien and Allow the Deficiency as Unsecured. The Chapter 13 Debtor, Patricia Louise Brouse (“Debtor” herein), requests an order of the Bankruptcy Court avoiding two creditors’ liens pursuant to 11 U.S.C. § 506(d). The dispute is submitted to the Court on stipulated facts and ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING HEARING ON CONFIRMATION The Court conducted an evidentiary hearing on the Fourth Amended Plan of Reorganization, as modified (the “Plan”) proposed by the debtor, Rusty Jones, Inc. (“Rusty Jones or Debtor”), and on objections thereto filed by Beatrice Foods and voiced orally by the U.S. Trustee, on January 11,12, 17,18, and 19,1990. Rarely ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTIONS OF ROCKWELL INTERNATIONAL CORPORATION AND ALLIED-SIGNAL, INC. TO FILE LATE PROOFS OF CLAIM This contested matter came on for trial on the Motions of both Rockwell International Corporation (“Rockwell”) and Allied- *838 Signal, Inc. (“Allied-Signal”) (collectively “Movants”) to File Late Proofs of Claim. Evidence was admitted ...
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MEMORANDUM OPINION Julie Wynne Johnson and Christopher Merrill Johnson obtained a loan for $25,-500.00 from the Boatmen’s Bank of Columbia some time between December 1, 1987 and August 1, 1988. Said Bank now claims that said loan should not be dischargeable in the bankruptcy proceeding by Julie Wynne Johnson. That claim is based on alleged violations of 11 U.S.C. § 523(a)(2)(A). Julie Wynne Joh...
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FINDINGS OF FACT, CONCLUSIONS OF LAW MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case and the matter under consideration is a complaint filed by Joan Wills (Plaintiff) which seeks a determination by this Court as to the validity and extent of the security interest of NCNB or Max Wagner (Wagner) in a certain promissory note dated October 16, 1984, in the amount of $209,331.59 signed by Joan ...
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MEMORANDUM DECISION ON REMAND OF ISSUES IN DETERMINATION OF ADEQUATE PROTECTION BACKGROUND This case was commenced on May 26, 1988, by the filing of an involuntary Chap *676 ter 11 petition against East-West Associates (the “Debtor”) by Nastasti-White, Inc., Circle Industries Division, Argus Construction Corp., and U.S.A. Contracting Corp (the “Petitioning Creditors” or ...
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MEMORANDUM OPINION AND ORDER On March 27, 1987, Debtors, Charles and Charlotte Sumner d/b/a Charlie’s Auto Service, filed for relief under Chapter 13 of the Bankruptcy Code. This case was later converted to a Chapter 11 on August 6, 1987. In 1984, 1985, 1986 and 1987 Southwestern Bell Yellow Pages (“Southwestern Bell”) printed ads for the Debtors’ auto service pursuant to four (4) annual writ...
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ORDER ON OBJECTION TO THE FEE APPLICATION OF MALKA ISAAK THIS is a confirmed Chapter 11 case and the matter under consideration is an Objection to the Fee Application of Malka Isaak. The Objection is interposed by Elias Moron Arosemena (Curador), a creditor of Florida Peach Corporation of America, International Division (FPCAID), and the proponent of the confirmed Plan. The Curador seeks ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 11 reorganization case and the matter under consideration is a claim of nondischargeability asserted by General Electric Capital Corporation (Plaintiff), against H. Donald Morrison and Anita M. Morrison (Debtors). The Amended Complaint seeks a determination by this Court that a debt allegedly due and owing by th...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 11 reorganization case and the matter under consideration is this Court’s Order Determining Validity, Extent and Priority of Liens entered on March 17, 1989, 98 B.R. 573, which was remanded by the District Court for reconsideration in light of the Supreme Court’s decision in California State Board of Equalization v. Sie...
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ORDER ON VERIFIED MOTION FOR TEMPORARY RESTRAINING ORDER AND FOR PRELIMINARY INJUNCTION THIS is a Chapter 11 case, and the matter under consideration is a verified Motion filed in an adversary proceeding styled, Taylor’s of St. Petersburg, Inc., d/b/a Gold Doctor (Debtor) v. Elaine J. Gugino (Gugi-no) and Everett Rice, Agent/Sheriff, The Pinellas County Sheriffs Department (Sheriff), Adversary ...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT THIS is a Chapter 11 reorganization case and the matter under consideration is a *586 complaint filed by the Shipwrights, Joiners and Caulkers Local 2071 of the United Brotherhood of Carpenters, AFL-CIO (Plaintiff) for breach of a collective bargaining agreement. The above-captioned adversary proceeding is, in fact, a proceedin...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION This Chapter 7 case came on before the Court at Mankato, Minnesota, on June 27, 1989, for hearing on the Trustee’s objection to Debtor’s claim of exemption. Chapter 7 Trustee Mark C. Halverson appeared pro se. Debtor appeared by his attorney, C. Stephen Rowley. Upon the moving documents, record made a...
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110 B.R. 597 (1990) In re Stephen Lewis SMITH a/k/a Smith, Stephen Lewis, p/d/b/a S.L. Smith, Debtor. Terry E. SMITH, Trustee for Stephen L. Smith, Plaintiff, v. Steven L. & Nancy F. McINTIRE, Defendants. Bankruptcy No. 89-1190-8P7, Adv. No. 89-587. United States Bankruptcy Court, M.D. Florida, Tampa Division. January 31, 1990. *598 Allan C. Watkins, Tampa, Fla., for plaintiff. Don M. Stichte...
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MEMORANDUM OPINION William C. Head, Defendant, Debtor, filed a petition under Chapter 11 of the Bankruptcy Code on August 11, 1989. A state court action filed prior to this bankruptcy against Debtor by Isaiah Hunter, III, and Hunter Grading Contracting, Inc., Plaintiffs, was removed to district court. The district court has referred the removed action to this Bankruptcy Court. On November...
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OPINION A. INTRODUCTION The parties have litigated this proceeding, concerning an attempt by the Debtor-Landlord to recover $24,531.71, plus interest, from a realtor who set off his commissions against a tenant’s deposit, as if it presented a difficult issue of application of 11 U.S.C. § 549(b), an obscure Bankruptcy Code section concerning transfers in the “gap” period between the f...
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MEMORANDUM OF DECISION RE MOTION TO COMPEL TRUSTEE TO ADMINISTER ASSET FACTS William and Virginia Moore, debtors herein, filed their Chapter 7 petition on September 14, 1988. Prior to filing, the debtors brought a “lender liability” action against Desert Community Bank (“Bank”) and certain of its officers in the Superior Court of California, County of San Bernar-dino. Bank is also a ...
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MEMORANDUM OPINION This case was heard before the court at several hearings on the Debtor-In-Possession’s Motion To Assume Unexpired Lease Of Nonresidential Real Property filed by the Debtor on October 30, 1989. By agreement with the parties the hearings were bifurcated into the determination first of the legal and factual question as to whether the lease in question, involving the Mill-yard Re...
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OPINION This opinion is occasioned by the Debtors’ motion to reinstate the automatic stay filed with this Court on February 7, 1989 to prevent Federal National Mortgage Association (“FNMA”) from foreclosing its mortgage on a house formerly owned by the Debtors at 928 Selwyn Road, Cleveland Heights, Ohio (the “Property”). The Debtors sold the Property on August 4, 1988. This apparently straightf...
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DECISION ON MOTION TO LIFT AND/OR MODIFY AUTOMATIC STAY The Movant in this proceeding, Olim Realty Corporation (hereinafter referred to as “Olim”), seeks relief from the automatic stay so that it may perfect its security interest in certain assets and property of the Debtor, Beauti-Full Size Boutique, Inc. (hereinafter referred to as the “Debtor”) which were to serve as collateral for the *139Deb...
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ORDER In this adversary proceeding, the Trustee in this Chapter 11 case filed a complaint under 11 U.S.C. § 544 against the defendant, Farm Credit Services (FCS), successor to Federal Land Bank of Spokane, for turnover of lease payments generated from the real property owned by Debtors Richard and Judith Kurth. After answer, trial of said issue was concluded on January 23, 1990, and memor...
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MEMORANDUM OPINION We are called upon to determine whether the debtor’s interest in funds under a profit sharing plan sponsored by Xerox Corporation (“defendant” or “Xerox”) is excluded from property of the estate under § 541(c)(2) of the United States Bankruptcy Code (“Code”). Robert and Kathy Putman (“debtors”) filed a petition under Chapter 7 of the Code on January 23, 1987. On th...
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OPINION DECLARING AVOIDANCE OF TAX LIEN PURSUANT TO 11 U.S.C. § 522(f) PROPER AND DECLARING UNSECURED DEBT FOR PROPERTY TAXES DISCHARGED PURSUANT TO 11 U.S.C. § 727(b). I Introduction These adversary proceedings were consolidated for trial pursuant to Rules of Civ.Proc., Rule 42, 28 U.S.C., as incorporated by Rules Bankr.Proc., Rule 7042, 11 U.S.C., on the ground that they prese...
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MEMORANDUM OPINION This matter comes before the Court on the objection of Melmark Cartage Co., Inc. and A.J. Express, Inc. (“Melmark and A.J. Express”) to the claims for attorneys’ fees of Thomas M. Breen (“Breen”) and the law firm of Walsh, Neville, Pappas & Mahoney (“Mahoney”) arising from the settlement of a personal injury lawsuit (the “lawsuit”) involving Antonio Del Grosso (the “Deb...
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MEMORANDUM OPINION AND ORDER This matter comes on for hearing before the Court on January 23, 1990, pursuant to *958 Defendant Darrel Derryberry’s Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; Defendant Helen J. Johns’ Motion to Dismiss, or in the Alternative, Motion for Summary Judgment; and Plaintiffs Motion for Leave to File Second Amended Complain...
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AMENDED OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This matter is before the Court following the trial of a complaint filed by Beverly Enterprises to determine the dischargeability of a debt owed it by the 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 judicial district. T...
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*972 MEMORANDUM OPINION T.L. Paramanandhan (hereafter movant) and Nikolas Alexander Janovski (hereafter debtor) were formerly married. During their marriage, the movant and debtor established a $35,000.00 fund designed to pay the college education cost for their two minor children. The fund was subsequently incorporated into their divorce decree. The debtor borrowed from this fun...
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110 B.R. 754 (1990) In re William Joseph CIRINEO and Heidi J. Cirineo, a/k/a Heidi Weinberg, Debtors. MANUFACTURERS HANOVER TRUST COMPANY, Plaintiff, v. Heidi J. CIRINEO a/k/a Heidi Weinberg, Defendant. Bankruptcy No. 89-12964S, Adv. No. 89-1168S. United States Bankruptcy Court, E.D. Pennsylvania. February 22, 1990. *755 Noah Gorson, Gorson & Gorson, P.C., Philadelphia, Pa., for plaintiff. Ar...
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MEMORANDUM OPINION AND ORDER THIS MATTER is before the Court on the Motion to Show Cause Why Creditor Should Not be Held in Contempt filed by the Debtor on September 19, 1989 and the Reply filed by the creditor, Stephen Slezak, on December 11, 1989. The Court held a hearing regarding this matter on January *947 9, 1990. At the conclusion of that hearing, this Court issued its...
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ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding came on for hearing on January 22, 1990, of the motion for summary judgment (Document No. 6) filed by plaintiff, Braniff, Inc. (“Braniff”), and the motion for summary judgment (Document No. 9) filed by defendants, James W. Toren and Wilmington Trust Company, as trustees of the BRNF Liquidating Trust (“BRNF”). Brani...
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ORDER DENYING MOTION FOR RECONSIDERATION OF ORDER DENYING NOTION FOR IMMEDIATE PARTIAL PAYMENT OF SECURED CLAIM THE MATTER under consideration in this Chapter 7 case is a Motion for Reconsideration of Order Denying Motion for Immediate Partial Payment of Secured Claim filed by Creditor, Enterprise National Bank of Tampa (Enterprise). The Court reviewed the record, heard testimony and argu...
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MEMORANDUM OPINION AND ORDER The Debtor in this case, Mary L. Moses, filed a Petition for Relief under Chapter 7 of the Bankruptcy Code on October 27, 1989. One of the Debtor’s assets is real property located in Wagoner County, Oklahoma and more particularly described as follows, to-wit: Lot Three (3), Block Three (3), WOODSTOCK II, an Addition to the City of Broken Arrow, Wagoner Co...
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ORDER GRANTING STAY PENDING APPEAL CAME ON for hearing the motion of Plaintiffs James Yao Gleasman and Margaret Yao Gleasman (the “Gleasmans”) for Stay Pending Appeal, and the response and objection thereto of Defendant Franklin Federal Bancorp (“Franklin”). The court finds and concludes that a stay should be granted upon conditions as set forth herein. I. Facts and Procedural ...
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MEMORANDUM AND ORDER ON MOTIONS TO DISMISS UNDER CODE § 109(e) The Dime Savings Bank of New York, FSB (“Dime”) moves to dismiss these chapter 13 cases. For the reasons that follow, the motions are granted. BACKGROUND On July 7, 1989, the debtors, who are married, filed separate petitions under chapter 13 of the Bankruptcy Code. The chapter 13 statement in each case lists three s...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THE MATTER under consideration in the above-captioned adversary proceeding is an action for declaratory judgment under Title 28 U.S.C. §§ 2201 and 2202 brought by the Plaintiff, Federal Deposit Insurance Corporation (FDIC) to determine whether income tax refunds due from the Internal Revenue Service (IRS) and the State of Florida are property of FDIC o...
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MEMORANDUM OPINION Before the Court is Plaintiffs' Complaint To Determine Dischargeability of Debtor Pursuant To 11 U.S.C. § 523(a)(2)(A) or, In The Alternative, Objection To Discharge of Debtor Pursuant To 11 U.S.C. § 727(a)(2), (3) and (5). Plaintiffs -claim that Stephen John Rus-nak (“Debtor”) obtained money from them by fraudulent representations; that Debt- or, with intent to hinder, d...
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OPINION A. INTRODUCTION This apparently simple Chapter 7 bankruptcy case has become the scene of a battlefield on which the law firm which is counsel for the Trustee, Ciardi, Fishbone, and DiDonato (hereinafter referred to as “CFD”), has chosen to “litigate” several issues which it is believed will serve its benefit in obtaining larger fees in this and apparently future similar cases...
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ORDER Before this court is the debtor-in-possession’s (hereinafter “debtor”) request that this court enjoin the debtor’s spouse, Ann W. Bible, from proceeding with an action for separate support and maintenance, equitable division of property, attorney’s fees, suit costs and contempt against the debtor which is pending in the Family Court for the Thirteenth Judicial Circuit in Greenville ...
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MEMORANDUM OPINION ON TRUSTEE ELECTION On December 19, 1986, an involuntary Chapter 7 case was commenced against Wayne J. Klein (“Debtor”) by United States Fidelity and Guarantee Company (“USF & G”), Harris Trust and Savings Bank, (“Harris”) and Continental Bank (“FDIC”). This case was originally assigned to Bankruptcy Judge DeWitt. On December 30, 1986, an order was entered appointing an...
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MEMORANDUM AND ORDER Following sale of the debtors’ real estate, the trustee filed a motion to marshall liens in which he alleged that the Bank of Casey was not entitled to any proceeds from the sale of a one-acre tract and mobile home that had become attached to the real estate. The trustee proposed to pay the proceeds from the sale of this tract to the Farm Credit Bank of St. Louis, whi...
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*765 MEMORANDUM OPINION The Complaint in the above-captioned adversary action consists of six (6) counts, of which only Counts II and VI remain to be adjudicated. Count I was dismissed by Order of Court on the day of trial. Summary judgment had been entered previously in favor of Plaintiffs therein with respect to Counts III, IV, and V. Count II of the Complaint has been bro...
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OPINION Counsel for the debtor has applied for compensation in the amount of $5,427.50 and reimbursement of expenses of $658.45. Counsel had obtained a retainer from the debtor prior to the commencement of the case in the amount of $5,000. Hence, the net fee application is for $427.50 and $658.45 in expenses. The trustee’s First and Final Account shows that the total receipts of the Chapter 7...
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110 B.R. 628 (1990) In re Roger A. DIQUINZIO, Helen J. Diquinzio, Debtors. Bankruptcy No. 89-10780. United States Bankruptcy Court, D. Rhode Island. February 14, 1990. John Rao, Rhode Island Legal Services, Inc., Woonsocket, R.I., for debtors. Larry Dub, Law Office of Larry Dub, Pawtucket, R.I., for ITT Financial Services. John Boyajian, Boyajian, Harrington & Richardson, Providence, R.I., Tr...
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MEMORANDUM OPINION I. 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)(B) & (H), which the Court may hear and determine. II. PROCEDURAL ...
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MEMORANDUM OPINION I. 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)(I), which the Court may hear and determine. 11. PROCEDURAL BACKGRO...
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OPINION AND ORDER Background The facts of the case are not in dispute. On November 4, 1986, Leland J. Balber (“Mr. Balber”) filed a petition under Chapter 7 of Title 11 of the United States Bankruptcy Code at Case No. 86-2841. Mr. Balber sought permission to employ the “state exemptions” in his petition and, accordingly, exempt any interest he had in entireties property. Mr. Balber listed r...
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MEMORANDUM OPINION I. 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)(L), which the Court may hear and determine. II. INTRODUCTION On July 12, 1989, Debtor...
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DECISION AND ORDER Heard on September 27, 1989 on the Complaint of Dellson, Inc. (“Dellson”) seeking to have its debt with the debtors, Mitchell and Ellen Pretner (“Pretner”), declared nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). 1 Pretner denies the allegations in the complaint, contends that the financial statement he submitted to Dellson *943 was not materially false, and argue...
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110 B.R. 964 (1990) In re OTASCO, INC., I.D. No. XX-XXXXXXX, Debtor. OTASCO, INC., Plaintiff, v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, American Motorists Insurance Company, and National Loss Control Service Corporation, Defendants. Bankruptcy No. 88-03410-W, Adv. No. 89-0285-W. United States Bankruptcy Court, N.D. Oklahoma. February 21, 1990. *965 Doerner, Stuart, Saunders, Daniel, &am...
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ORDER GRANTING MOTION OF AMOCO OIL COMPANY FOR RELIEF FROM STAY This Chapter 7 case came on before the Court on January 22, 1990, for hearing on *900 the motion of Amoco Oil Company (“Amoco”) for relief from stay. Amoco appeared by its attorney, Lawrence T. Hofmann. The Chapter 7 Trustee appeared by his attorney, Brian F. Kidwell. Upon the moving and responsive documents, Amo...
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ORDER GRANTING TRUSTEE’S MOTION FOR TURNOVER OF PROPERTY This Chapter 7 case came on before the Court on February 5, 1990, for hearing on the Trustee’s motion for turnover of certain assets. Trustee Michael J. Iannacone appeared on behalf of the bankruptcy estate. Debtor appeared personally and by her attorney, George H. Smith. Upon the moving and responsive documents, arguments of counsel, and...
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*820 MEMORANDUM OPINION AND ORDER RE: APPLICATION OF 11 U.S.C. SECTION 109(g)(2) As the proceeding before the court is core pursuant to 28 U.S.C. Section 157(b)(2)(A), I have jurisdiction to enter a final order or judgment on the question of the appropriate application of 11 U.S.C. Section 109(g)(2). On November 25, 1988, Karen L. Santana (“Santana”) filed a petition in bank...
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MEMORANDUM OPINION The Plaintiff, Worthen Bank & Trust Company (hereinafter “Worthen”), filed a Complaint to revoke debtor’s discharge pursuant to 11 U.S.C. § 727(d). The matter came on for trial February 6, 1990. Worth-en appeared by counsel, Judy S. Henry, Esq. The debtor appeared personally and by counsel, Bob Leslie, Esq. The Bankruptcy Court has jurisdiction to hear this matter ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION On October 18, 1989, petitioners, Mark Twain Bank (hereinafter “Mark Twain”) and First Bank filed, pursuant to 11 U.S.C. § 303(b)(2), an involuntary Chapter 7 petition against Alleged Debtor Harriet Rimell. This filing was one of a series of actions in which Mark Twain and First Bank, in addition to The Boatmen’s National Bank of St. Louis (h...
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MEMORANDUM On Thursday, February 1, 1990, the Debtor, PATRICIA SMITH (hereinafter “the Debtor”), filed this adversary proceeding seeking to reinstate the automatic stay, from which we had granted the Defendant, CITIFED MORTGAGE COMPANY (hereinafter “the Defendant”), relief, by Order of September 8, 1989. See In re Smith, 104 B.R. 695, 702 (Bankr.E.D.Pa.1989) (hereinafter cited ...
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AMENDED MEMORANDUM AND ORDER On December 8, 1986, Ronald L. Farrington d/b/a Farrington Livestock (“Debtor”) filed for relief under Chapter 11 of the Bankruptcy Code. On April 12, 1988, the case was converted to a Chapter 7 proceeding. The United States of America, Department of the Treasury, Internal Revenue Service (“IRS”) first filed a proof of claim on April 20, 1988. An amended claim was fil...
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SUPPLEMENTAL MEMORANDUM OPINION This contested matter raises the issue of whether certain creditors validly elected a Chapter 7 trustee under the Bankruptcy Code and applicable Bankruptcy Rules. On February 6, 1990, a hearing took place regarding the Motion of International Union, UAW, UAW Local 724 and Brenco, Incorporated for Resolution of Dispute Regarding Election of Trustee. At ...
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AMENDED OPINION AND ORDER OF CONFIRMATION The hearing under section 1128(a) of the Bankruptcy Code and Bankruptcy Rule 3020(b) to consider confirmation of the First Amended Joint Partially Consolidating Plan Of Reorganization Dated February 8, 1990 (the “Plan”), as filed by Apex Oil Company and its 53 affiliated entities (the “Debtors”) in its printed form 1 and as modified at ...
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MEMORANDUM DECISION The motions for approval of the employment of the law firm of Nielsen & Senior (Law Firm) to represent the limited partnership debtors in each of these Chapter 11 cases came on for hearing unopposed. Despite the lack of opposition, the court denied each of the motions. The court found that simultaneous representation by the Law Firm of both debtors, which have a common...
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I The state director of a federal lending agency represented to a debtor who filed for protection under Chapter 11 of the Bankruptcy Code (“Code”) that no post-petition interest would be charged on loans previously advanced to the debtor. The United States subsequently disputed the authority of the state director to make such a determination. The post-petition interest was thus charged to ...
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MEMORANDUM AND DECISION ON COMPLAINT TO AVOID LIEN UNDER CODE § 544(a)(3) The plaintiff trustee in this chapter 7 core proceeding seeks to avoid, under Code *26§ 544(a)(3), a mortgage held by the defendant Union Trust Co. BACKGROUND On February 25, 1989, the debtor filed a petition under chapter 7 of the Bankruptcy Code. The debtor’s Schedule B-l listed real property located at 445-453 Maple-wood...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Introduction This matter came before the Court for hearing on January 25, 1990 pursuant to the Application for Final Allowance of Compensation and Reimbursement of Expenses by Ernst & Young (successor by merger to Ernst & Whinney, hereinafter referred to as “E & Y”), Special Financial Advisor to the Examiner (the “Application”), Gregory D. Willard, Lauren...
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MEMORANDUM OPINION This cause coming to be heard upon the Application of Examiner Lloyd A. Palans for Final Compensation and Reimbursement of Expenses for the period January 27, 1988 through November 30, 1989 (the “Examiner Application”), all creditors and parties in interest having received more than twenty days written notice thereof, four objections to certain portions of the Examiner’...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case involves 17 Motions for Lien Avoidance filed by Teddy and Linda Cheek *829 (hereinafter the “Debtors”). The Debtors contend that section 522(f) of the Bankruptcy Code mandates the avoidance of the judicial liens in question due to their impairment of the homestead exemption allowed the Debtors under section 513.475 R.S....
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MEMORANDUM AND ORDER ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY Pacific Mutual Life Insurance Company (“Pacific”) moves for relief from the automatic stay under Code § 362(d)(1) and (2) or, in the alternative, to dismiss under § 1112(b). For the reasons that follow, Pacific is granted relief from the automatic stay under § 362(d)(2). 1 BACKGROUND The debtor is a Connec...
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110 B.R. 989 (1990) In re Eli SOFRO and Lori Sofro, Debtors. Milton Gene FRIEDMAN, Trustee, Plaintiff, v. Eli SOFRO, Defendant. Milton Gene FRIEDMAN, Trustee, Plaintiff, v. Lori SOFRO, Defendant. Bankruptcy No. 89-01018-BKC-SMW, Adv. Nos. 89-0530-SMW-A, 89-0557-SMW-A. United States Bankruptcy Court, S.D. Florida. February 26, 1990. *990 Gary J. Rotella, Rotella & Boone, P.A., Fort Lauderdale,...
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ORDER Before the court is the application, as amended, of Gambrell, Clarke, Anderson & Stolz for allowance of compensation. Applicant seeks the allowance of attorney’s fees under 11 U.S.C. § 503(b)(3)(D) and (b)(4) or, alternatively, under the doctrine of quantum meruit and the court’s equitable powers under 11 U.S.C. § 105. This is a core proceeding under 28 U.S.C. § 157(b). A...
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OPINION OPINION This ease comes before the Court on the Plaintiff’s Motion for Summary Judgment on his Amended Complaint to Determine Dischargeability of Debt in this Chapter 7 proceeding. The Plaintiff, Bruce E. Coleman (“Coleman”), seeks to have a judgment in excess of $100,000 against the Debtor, Andrew Joseph Baker (“Baker”), declared nondischargeable under Bankruptcy Code Section 523(a)(...
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*449 OPINION I We are asked whether 11 U.S.C. § 522(f)(1) may be employed to avoid the unsecured portion of a judicial lien. We AFFIRM in part and REVERSE in part. II FACTS Nash and Wendy Galvan (“Debtors”) filed a joint petition under Chapter 13 of the Bankruptcy Code. The residence in which they held title at the time had a fair market value of $94,500 and w...
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*147 MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of Glaseo Electric Company (Glaseo) seeking relief from the automatic stay provision of § 362(a) of the Bankruptcy Code. Between the period of September 14, 1989 and November 13, 1989, Glaseo sold certain materials to The Jennison-Wright Corporation (Debtor), a railroad tie manufacturer, for appl...
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MEMORANDUM AND ORDER RE: ATTORNEY FEES The matters before the court are objections by the U.S. Trustee to interim attorney fee applications by the attorney for the case trustee in the above-titled cases. A telephonic hearing was held on November 29, 1989. The court now issues its order which includes findings of fact and conclusions of law pursuant to Bankr.R. 7052. This is a core pr...
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MEMORANDUM OF OPINION AND ORDER Before the Court for determination is the motion of Roberts Roofing, Inc. for a dismissal of the case of A-K Enterprises, Inc. (Debtor). Upon due notice to all entitled parties, an initial hearing was held on January 18, 1990 and adjourned to January 11, 1990 for a continuation of an evidentiary hearing. In deliberation of this matter, the Court has considered ...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 1st day of February, 1990 on a motion by ITT Financial Services, Inc. (“ITT”) for relief from stay. The appearances were as follows: Peter Stein for ITT; and Vance Bushay and Timothy Fuller for the debtor. This Court has jurisdiction to hear and finally determine this matter pursuant to 28 U.S.C. ...
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ORDER In this adversary proceeding, the plaintiff, Edward Roberts1, filed a Complaint against the Debtor/Defendant, Robert Tuma, claiming the debt of $23,526.00 is non-dischargeable under Section 523(a)(6) of the bankruptcy Code. Trial of this matter, after answer, was held on January 8, 1990, with testimony of the plaintiff (by deposition) and the defendant. The matter has now been briefed and i...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTION TO CONFIRMATION OF A PLAN BACKGROUND On January 16,1990, this Court approved the second amended Disclosure Statement which had been filed jointly by Buttonwood Partners, Limited (the “Debtor”) and Ben Franklin Financial Corporation (“Ben Franklin”), one of the Debtor’s secured creditors. Votes were solicited under the Disclosure St...
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MEMORANDUM. ORDER OVERRULING OBJECTION TO EXEMPTION The above entitled matter came on for hearing before the undersigned on the 10th day of October, 1989, on the trustee’s objection to debtor’s claim of exemption of his interest in a Teachers Retirement Association Plan. Appearances were as follows: Lowell Bottrell for the trustee; Michael Farrell as and for the trustee; and David Nycklemoe for...
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OPINION Names for Dames, Inc. (“Names”) and Kitty, Fan Koo (collectively the “Defendants”) move for summary judgment in this adversary proceeding, which has been brought by the Official Unsecured Creditors’ Committee (the “Committee”) pursuant to court authorization. In its complaint, the Committee alleges, with respect to each defendant, that on June 8 and 9, 1988 the defendant “entered ...
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ORDER After due notice, hearing was held January 16, 1990, on confirmation of the Debtors’ Fourth Modified Chapter 13 Plan, together with the objections of National First Mortgage Corporation (NFMC), and the Chapter 13 Trustee. Also heard were the Debtors’ Objection to the Proof of Claim of NFMC, Motion to Value Collateral of NFMC, Motion to Avoid NFMC’s Lien, and Motion for Disallowance ...
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OPINION The issue before the court is whether a mortgage executed by the debtor pursuant to the terms of a stipulated decree of disso *331 lution may be avoided under § 522(f) 1 as a judicial lien impairing the debtor’s homestead exemption. The debtor was represented by Brent G. Summers of Portland, Oregon. The creditor, Christine Heiden, was represented by Bruce E. Anderson of La Grande, O...
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Heard on December 27, 1989 on the debt- or, CNN Development Corporation’s (“CNN”), Notice of Intended Sale of Unit E-5 of the Sweet Allen Farm Condominiums located in South Kingstown, Rhode Island, and on the objection of Carpet Sales, Inc., an alleged lien creditor. After hearing, and based on the evidence presented, we granted the debtor’s motion and approved the sale, free and clear of liens, ...
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MEMORANDUM DECISION AND ORDER RE: ATTORNEYS’ PEES OF OREN CHIKAMOTO AND ENVER PAINTER On February 28, 1990, this Court held hearings on various professional fee applications seeking administrative expense status. At the conclusion of the hearing, the Court took under advisement the question of whether the attorneys fees and costs of Oren Chikamoto, Esq. and Enver Painter, Esq. (collectively “Ap...
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MEMORANDUM OF OPINION This is a dispute between Max H. Rush, trustee in this Chapter 7 case (“Trustee”), and a group of individuals holding claims against this estate (“Creditors”). The dispute arises out of the Creditors’ assertion of claims against this estate, including a claim for a constructive trust, and Trustee’s objections to those claims. I FACTS Comstock Financial...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The Plaintiff, PEOPLE OF THE STATE OF ILLINOIS, ex rel. ILLINOIS DEPARTMENT OF PUBLIC AID (“IDPA”), by its attorney, NEIL F. HARTIGAN, Attorney *697 General, State of Illinois, pursuant to Section 523(a)(2) and Section 523(a)(7) of the Bankruptcy Act (11 U.S.C. Section 523(a)(2) and 11 U.S.C. Section 523(a)(7)), has moved this Court to ...
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Plaintiff Sanwa Bank of California (the “Bank”) initiated this adversary proceeding when faced with the conflicting claims of debtors and the State Board of Equalization (the “Board”) as to funds in an account at the Bank in the name of debtors (the “Account”). In its complaint, the Bank interplead the funds in the Account (the “Funds”) and sought declaratory relief to determine who had the super...
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I. FACTS On July 13, 1989, Lamont Lindell Perry, M.D. (“Debtor”) filed his petition under Chapter 7. On October 13, 1989 Sandra Betts Nickens and Cora M. Moore, Co-Administrators of the Estate of Virginia Morton (“Plaintiffs”), filed a complaint against Debtor to determine the dischargeability of a debt under section 523(a)(6). Plaintiffs are the administrators of the estate of the decease...
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ORDER ON MOTION FOR RECONSIDERATION On January 6, 1989 Plaintiff Trembley filed an adversary complaint styled “Complaint to Determine Validity, Priority and Extent of Liens and Other Interests in Property, for Damages and to Determine Dischargeability of Debt, and Demand for Jury Trial.” Named as defendants were the debtors and many others. The essence of the complaint is that Trembley asserts he ...
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MEMORANDUM AND DECISION This matter is before the Court on a motion to lift the stay or to allow an administrative claim. On April 15, 1987, Turning Point Lounge, Ltd. (hereinafter referred to as Turning Point) filed for relief under Chapter 11 of Title 11 of the U.S.C. On June 22, 1989, Jazz Bird filed a motion to lift the stay to enforce a post petition judgment or in the alternative to...
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DECISION CONCERNING DEBTOR’S MOTION TO BE RELIEVED FROM ARBITRATION The debtor, Charles P. Young Company New York, Inc. (“CPYNY”), seeks to be permanently relieved from an interest arbitration clause contained in its collective bargaining agreement with New York Typographical Union No. 6 (“Local 6”). The following are the facts giving rise to this motion. Facts In 1975, the ...
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MEMORANDUM OPINION In 1985, debtor applied to the Missouri Health Facilities Review Committee, hereinafter MHFRC, for a Certificate of Need, hereinafter CON, to build a one hundred-fifty bed nursing home in the St. Louis area. The CON was duly issued and was valid for six months. However, debtor was successful in seeking and obtaining six ex *261 tensions each of six months’ ...
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OPINION This opinion considers the applicability of the “capital infusion exception” as enunciated in Case v. Los Angeles Lumber Prod. Co., 308 U.S. 106, 60 S.Ct. 1, 84 L.Ed. 110 (1939) and further discussed in Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). At issue is whether the controlling shareholder, Ronald A. Piperi, may...
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OVERVIEW The debtor filed a bankruptcy in Texas, which was dismissed on August 3, 1988, by stipulation between the debtor and the ap-pellees. The appellant, Blake, Barnett, Mil-man & Bell, Inc., is the law firm which represented the debtor in filing a second bankruptcy case in California approximately five months later on December 30, 1989. The California bankruptcy court found that the s...
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MEMORANDUM AND DECISION This matter is before the Court on the complaint of Blanche Peters objecting to the discharge of the debt owed her by James H. Griffin. James Griffin and Maxine Griffin filed a joint petition under Chapter 13 on January 29, 1988. Subsequently it was converted at a Chapter 7 on June 9, 1989. This Adversary Proceeding was brought by summons and complaint dated June 1...
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ADJUDICATION A. FINDINGS OF FACT 1. The Defendant in this proceeding, IRVIN FELDMAN (hereinafter “the Debt- or”), filed the voluntary Chapter 7 bankruptcy case underlying this proceeding on August 7, 1989. 2. On October 17, 1989, the Plaintiff in this proceeding, JOHN STONE (hereinafter “the Plaintiff”), filed this matter, alleging that certain indebtednesses of the Debtor to hi...
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MEMORANDUM OPINION ON THIRD-PARTY DEFENDANT’S MOTION TO DISMISS Spaulding & Company (“Debtor”) is a debtor-in-possession under Chapter 11 of the Bankruptcy Code. Debtor filed this adversary complaint (the “Adversary Complaint”) against Gordon Buchanan, Jr. (“Buchanan”). In the Complaint, Debtor alleges that a security interest and conveyance of property in favor of Buchanan was...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CROSS-CLAIMS The trial of the above captioned adversary proceeding was held before this Court on- June 27, 28 and 30, 1989. John Silas Hopkins, III and Donald A. Wochna appeared for Reveo D.S., Inc. (“Reveo”) and Alan R. Lepene, Michael A. Ellis and Charles E. Hallberg appeared for General Computer Corporation (“GCC”). Testimony and evidence were present...
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MEMORANDUM OF DECISION This matter comes before the court on the summary judgment motion of Vincent Petruzzi (“Plaintiff”), who is seeking to hold nondischargable the debt owed to him by George DeLuca (“Debtor”), pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4). This court has jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(1) and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)...
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COMMENT There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.” 1 ...
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AMENDED MEMORANDUM DECISION At issue is whether a Chapter 7 trustee of one estate has standing to initiate a complaint under 11 U.S.C. § 523 to determine non-dischargeability of debt against the debtor in another estate. 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 C...
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ORDER DISMISSING TRUSTEE’S COMPLAINTS AGAINST G. GRIMSLEY GRAHAM AND BARBARA GRAHAM On November 1, 1988 the Chapter 7 Trustee, Middleton P. Ray, filed a Complaint objecting to the debtor’s discharge in Adversary Proceeding 88-431. He also filed a separate Complaint in Adversary Proceeding No. 88-435 against the debtor’s spouse, Barbara Graham, who is not a co- *804 debtor. ...
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*672 MEMORANDUM The question presented is whether the post-confirmation conversion into cash of a revealed asset warrants modification of a Chapter 13 plan over the debtor's objection to require payment of the cash to creditors. Because the proposed modified plan fails the feasibility test in 11 U.S.C. § 1325(a)(6), modification is denied. I. On September 1, 1988, Kenneth and Deborah Perk...
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111 B.R. 914 (1990) In re MAHONEY, TROCKI & ASSOCIATES, INC., a California corporation, Debtor. MAHONEY, TROCKI & ASSOCIATES, INC., a California corporation, Plaintiff, v. James D. KUNZMAN; James D. Kunzman, M.D., Inc., Pension & Profit Sharing Plan; James D. Kunzman, M.D., Defined Benefit Plan, Defendants. Adv. No. C86-0421-LM11, Bankruptcy No. 84-02225-LM11. United States Bankruptcy...
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DECISION GRANTING SUMMARY JUDGMENT MOTION OP NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY This action is brought by the trustee in bankruptcy for the bankruptcy estate of Hazel Lee Martin Worl to recover the face amounts of certain insurance policies issued by the defendant, New England Mutual Life Insurance Company. The policies name William A. Martin (the deceased spouse of the debtor) as the insur...
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MEMORANDUM DECISION Plaintiff Harold S. Taxel, trustee (“trustee”) moves this court pursuant to Federal Rule of Civil Procedure 56 (“Fed.R.Civ.P. 56”) for partial summary judgment or, in the alternative, for an order adjudicating facts existing without substantial controversy, with respect to the liability of defendants Electronic Sports Research (“ESR”); E & E Industries, Inc. (“E & E”);...
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OPINION This matter came before the court upon Great Western Bank’s objections to the *925 debtors’ Fourth Amended Chapter 13 Plan. The creditor was represented by Donald H. Hansen of Portland, Oregon. The debtors were represented by Don Thacker, also of Portland. For the first time, this court is called upon to determine how to apply the ruling of In Re Hougland, 886 F.2d 1182 (9th Cir.1...
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MEMORANDUM ORDER AND OPINION This matter comes on before the Court on the stipulations of the parties following a pre-trial conference conducted on December 12, 1989. After reviewing the undisputed facts and the arguments and authorities of counsel, the Court finds as follows. Plaintiff, the former spouse of the Debt- or, filed a complaint under 11 U.S.C. § 523(a)(5) objecting to the...
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MEMORANDUM DECISION Because the above-referenced motions revolve around substantially similar facts and involve the performance of a single individual, namely, Melvyn J. CoBen, as the Chapter 11 Trustee, and the law offices of Melvyn J. Coben, as general counsel for the Trustee, they have been consolidated for the purposes of this decision. The pertinent issues are straightforward: 1...
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OPINION I This appeal raises two questions. The first is whether federal bankruptcy law permits a nondebtor spouse to claim a state homestead exemption in community property where the debtor spouse schedules federal exemptions in unrelated property. The second is whether unrecorded judgments against a marital community create valid liens upon the real property of the marital community under W...
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OPINION Originally, this Court issued its Opinion denying the Defendant’s Motions to Dismiss filed in In re Hanley and in In re Groom 105 B.R. 458 (1989). The Defendant then filed Motions to Alter or Amend Judgment. While these two cases were pending, a third case, In re Spencer, was filed against the Defendant, who filed a similar Motion to Dismiss which raised the same issues that are r...
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ORDER DISMISSING CASE UPON CONDITIONS On April 9, 1985, this Court issued its “Order and Notice” to show cause why the above-styled case should not be dismissed pursuant to 11 U.S.C. § 707(b). On the same date the Court deferred entry of debtors’ discharge pending resolution of the inquiry under 11 U.S.C. § 707(b). On April 12, 1985, debtors filed their “Objection to Dismissal ...;” on Ap...
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MEMORANDUM DECISION AND ORDER On March 2, 1990, the Court heard the cross motions for summary judgment filed by Will Rogers Jockey & Polo Club, Inc. (“Will Rogers”), Plaintiff herein, and the Oklahoma Horse Racing Commission (“Racing Commission”), Defendant herein. After considering the evidence and the arguments and authorities submitted by counsel, the Court makes the following findings...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of the case trustee seeking a turnover of certain funds held in a deferred compensation plan. The following constitutes the Court’s findings and conclusions. Following the Debtor’s filing of a voluntary petition for relief under Chapter 7, the case trustee discovered wages in excess of $3,500.00 (The Funds) were d...
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MEMORANDUM OPINION LLL Farms, a Partnership, Debtor, filed a petition under Chapter 12 of the Bankruptcy Code on June 5, 1989. Debtor filed its Chapter 12 plan on November 6, 1989. Debtor filed an amendment to its Chapter 12 plan on January 17, 1990. Georgia Development Authority (Georgia Development) filed an objection to confirmation on January 2, 1990. A hearing was held on confirmation...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the motion of Plaintiff, The May Company (May), for summary judgment following the filing of a complaint to determine the dischargeability of a credit card debt owed by Najla Shihadeh (Debtor) to May. Upon an examination of the parties’ respective briefs and supporting documentation, the following findings of fact and conclusion...
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TEXT OF BENCH RULING DELIVERED ON NOVEMBER 2, 1989 Deltacorp. Inc. (Deltacorp), the debtor in possession in this chapter 11 case and the ultimate 53% parent of a non-debtor holding company which owns an insolvent; federally insured savings and loan association called Colonial Savings Bank (Colonial), seeks a preliminary injunction preventing for the Office of Thrift Supervision (OTS), the...
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MEMORANDUM DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON MOTION FOR RELIEF FROM THE AUTOMATIC STAY RELIEF REQUESTED Massachusetts Port Authority (“Mass-port”) asks this Court to grant its summary judgment motion which arises out of its request for relief from the automatic stay imposed by Bankruptcy Code (the “Code”) § 362(a). Specifically, Massport seeks an order declaring that ...
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MEMORANDUM OF OPINION AND ORDER This matter came on for hearing upon the motion of the case trustee seeking a turnover of certain funds held in a deferred compensation plan. The following constitutes the Court’s findings and conclusions. Following the Debtor’s filing of a voluntary petition for relief under Chapter 7, the case trustee discovered wages of not less than $4,000.00 (The Funds) we...
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MEMORANDUM DECISION ON MOTION FOR A DETERMINATION OF AUTOMATIC STAY VIOLATION AND FOR A SECTION 105 INJUNCTION BACKGROUND This adversary proceeding (the “Rolle-ston Adversary Proceeding”) filed by Eastern Air Lines, Inc. (“Eastern”) to enjoin defendant Moreton Rolleston, Jr. (“Rolle-ston”) and 17 formerly striking Eastern Pilots (collectively the “Rolleston Plaintiffs”) from proceedi...
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OPINION AND ORDER This matter comes before this Court as a case of first impression. Does a real estate agent have a mere claim for its contracted fee? The debtor has filed an application *769 for authority to sell property pursuant to 11 U.S.C. § 363 and to distribute the proceeds. Advantage Realty (hereinafter “Re-Max”) objects to the sale and proposed distribution of the p...
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MEMORANDUM OF DECISION DETERMINING EXTENT OF LIEN Trustee sues to determine whether Vermont Federal’s pre-petition perfected security interest in all of Debtor’s equipment, machinery and proceeds reaches a post-petition nonrefundable good faith deposit that was forfeited by a bidder of Debtor’s equipment and machinery at a sale solicited by the Trustee.1 We hold the forfeited good faith deposit b...
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MEMORANDUM OF OPINION AND ORDER In this Chapter 7 proceeding, the Plaintiff, Travelers Insurance Company (Travelers), seeks a grant of summary judgment on its complaint against Brian Douglas Scholz (Debtor) regarding dischargeability of a debt under § 523(a)(9) of the Bankruptcy Code. Upon an examination of the parties’ respective briefs and of the record generally, the motion for summary...
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MEMORANDUM OPINION Debtors have filed this Chapter 13 proceeding in a last ditch effort to save their residence. Debtors have only four secured debts, which are: (1) the note secured by a first mortgage on their residence, (2) the note secured by a second mortgage on their residence, (3) the note secured by a mortgage on their 1984 family car; and (4) their note secured by a mortgage on a 1982 ...
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MEMORANDUM OF OPINION AND DECISION Before the Court is the complaint of the United States of America objecting to the discharge of Timothy M. Trogdon under Sections 727(a)(3) and 727(a)(5) of the United States Bankruptcy Code. Defendant-Debtor filed his answer thereto. Additional counts disputing dischargeability and objecting to discharge were previously withdrawn. The parties stipu...
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MEMORANDUM OPINION On January 29, 1990, came on to be heard the motion for partial summary judgment of Michael Wurst, Trustee (“Trustee”) against the City of New York (the “City”) and the motion for summary judgment of the City. The Trustee requests *155 that his claim for administrative expenses be given priority over all other creditors pursuant to § 724(b)(2) and that the ...
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The parties to this adversary proceeding are former spouses. Plaintiff, the former husband, is a Chapter 7 debtor in this court. The complaint recites that the parties were divorced in Louisiana. The complaint seeks a declaration that all of the debts which plaintiff was ordered to pay in the state court decree are dischargeable “as not being in the nature of alimony, maintenance, or support, or ...
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Order On Objections To Debtors’ Supplement No. 2 To The First Amended Disclosure Statement And Amendment No. 5 To The Restated Consolidated Plan of Reorganization 1 BACKGROUND The history of these cases, initiated by the filing of voluntary petitions under Chapter 11 of the Bankruptcy Code, 2 the businesses of the debtors and the contents of the plans of reorganization, are set out in som...
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OPINION A. INTRODUCTION The instant contested matter, involving a dispute between a Debtor-tenant and its former landlord, presents at least two novel issues of state law and one difficult issue of bankruptcy law. Unfortunately, the underlying facts are, in several respects, somewhat muddled. Making our best effort to sort out the facts and apply the law to them, we conclude that the...
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ORDER DENYING MOTION FOR STAY PENDING APPEAL The above-entitled matter came on for hearing before the undersigned on the 13th day of March, 1990 on a motion by Jerome Ross for an expedited hearing and for a stay of judgment pending appeal. The appearances were as follows: William Joanis and Ronald Orchard for Jerome Ross (“Ross”); and Mark Kalla and John Thomas for Elli Mills and Kimberly...
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This matter comes before the court on an application for compensation by Scheider & Wiener, as attorneys for the Unsecured Creditors’ Committee, from which position they were removed by order of this court dated September 6, 1989. FACTS On March 15, 1989 and March 28, 1989 debtors filed petitions pursuant to Chapter 11 of the Bankruptcy Code (11 U.S.C. § 101 et seq.). The cases were t...
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*31MEMORANDUM OPINION Mickie Jo Edwards filed her petition for relief under Chapter 7. Commercial Credit Plan, Inc. duly filed its complaint under 11 U.S.C. § 523(a)(2)(B) praying that its debt be determined nondischargeable. Debtor filed a Motion To Dismiss on the grounds that said complaint does not comply “in any respect with the requirements of Rule 7008 of the United States Bankruptcy Rules”...
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OPINION A. INTRODUCTION The instant consolidated contested matters are Objections filed by the Trustee of a mortgage service company which is presently a Chapter 7 Debtor mortgage service company to administrative and secured Proofs of Claim filed by lending institutions whose mortgages the Debtor serviced. Applying the precept that preferences or priorities to creditors should be ca...
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OPINION Appellant debtor James Thomas Aubrey (“Aubrey”) appeals summary judgment against him on four causes of action under 11 U.S.C. §§ 523 and 727. We affirm. FACTUAL BACKGROUND Appellee William J. Thomas (“Thomas”) was confined in a mental institution for some eleven years. His experience was the subject of a television movie produced by Aubrey and a colleague, Ron Lyon. In 1...
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I A junior lienholder claimed interest on advances made to cure a debtor’s default on a senior obligation. The lienholder claimed interest at the same rate as had been charged on promissory notes between the debtor and the junior lienholder, whereas the debtor urged that interest should be limited to 7%, the “rate allowed by law” as specified in the Deed of Trust between the parties. The b...
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Debtor filed a motion for sanctions against a California university for failure to turnover his transcripts after he filed a Chapter 7 petition. The university contended that it was not required to release the transcripts until a notice of discharge was received. The bankruptcy court held that the university’s actions in withholding the transcripts violated the automatic stay and awarded sanctions...
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This appeal concerns the disbursement of the proceeds from the sale of the residence of the debtor and his non-debtor spouse. The bankruptcy court determined that the sale proceeds were community property, were property of the estate, and were liable for debts incurred by either spouse after separation but prior to the dissolution of the marriage and denied a motion for an order authorizing dis...
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OPINION I A creditor filed a timely complaint objecting to the dischargeability of certain debts and to the discharge of the debtor. However, well beyond the 60-day period stated by Bankruptcy Rule 4004(a) for filing such objections, the creditor sought to augment its original complaint with two additional causes of action opposing discharge of the *292 debtor. The trial...
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OPINION OVERVIEW The debtor purchased computer chips on account from plaintiff-appellee CAM/RPC Electronics, Inc. (“CAM”), pre-petition, and has not paid the purchase price for them. Alleging detrimental reliance upon the debtor’s alleged false financial statement, CAM sought either “reclamation” of the proceeds of computer chips, or the imposition of a constructive trust on those pr...
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ORDER FINDING THAT DEFENDANT DOES NOT HOLD A PERFECTED SECURITY INTEREST, AND REQUIRING TURNOVER Plaintiff bankruptcy trustee filed this action seeking a determination that defendant does not hold a perfected security interest in certain assets of the debtor. The Court finds for the Plaintiff. On January 14, 1987, the debtor, Dr. Roger Harold Schoenfeld, borrowed $4,000.00 from his father, defend...
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MEMORANDUM DECISION The debtor, Barbara L. Sweitzer, at all relevant times, has been married to Ralph W. Sweitzer. On August 29, 1988, while the Sweitzers were residents of Ohio, Central Trust Company, Inc. (“Central Trust”) took a judgment against Mr. Sweitzer in the amount of $12,881.45, which was duly entered and docketed. Shortly thereafter, the Sweitzers moved their residence to Wisc...
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111 B.R. 303 (1990) In re UMPQUA SHOPPING CENTER, INC., Debtor. Louis E. TIPPET, Mary C. Bowman, Lester W. Thompson, and D.W. Martin, Appellees, v. UMPQUA SHOPPING CENTER, INC., Appellant. BAP No. OR-89-1630 VAsR, Bankruptcy No. 688-61007-R11. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted: January 19, 1990. Decided: February 28, 1990. *304 John D. Rittenhouse...
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ORDER GRANTING TRUSTEE’S OBJECTION TO PROOF OF CLAIM OF GENERAL AMERICAN TRANSPORTATION CORPORATION The Trustee’s Objection to General American Transportation Corporation’s Claim of an Administrative Expense was submitted for decision on stipulations and *969 briefs. Upon consideration thereof, and of the record herein, the Court, pursuant to Bankruptcy Rules 9014 and 7052, f...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for trial before this Court on issues raised under 11 U.S.C. § 303 by the Involuntary Petition of Commercial Vision Corporation (“Commercial Vision”), Dorothea Bowlby (“Bowlby”) and Franklin Boulevard Community Hospital (“Franklin Boulevard”) (collectively the “Petitioning Creditors”) against the alleged debtor West Side Community...
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MEMORANDUM OPINION Marc Blumberg, formerly doing business as Universal Insurance (“Debtor”), filed a voluntary petition in bankruptcy on June 28, 1989 under Chapter 7 of the Bankruptcy Code. On December 1, 1989 Coronet Insurance Company (“Coronet”) filed its Second Amended Complaint. 1 The Complaint objects under 11 U.S.C. § 523(a)(4) to discharge of a debt claimed to be owed b...
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DECISION AND ORDER DENYING BANK’S MOTION FOR SUMMARY JUDGMENT Before the Court for consideration is Rhode Island Hospital Trust National Bank’s (“the bank”) Motion for Summary Judgment, in reference to its Motion for Relief from Stay filed on November 7, 1989. In support of its motion, the bank, relying on 11 U.S.C. § 362(e) and Bankruptcy Rule 4001(a)(2), argues that the time period...
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DECISION AND ORDER DENYING BANK’S MOTION FOR SUMMARY JUDGMENT Before the Court for consideration is Rhode Island Hospital Trust National Bank’s (“the bank”) Motion for Summary Judgment, in reference to its Motion for Relief from Stay filed on November 7, 1989. In support of this motion, the bank, relying on 11 U.S.C. § 362(e) and Bankruptcy Rule 4001(a)(2), argues that the time periods delineated...
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HAL J. BONNEY, Jr., Bankruptcy Judge. We are faced with the unhappy task of considering whether or not the court can compel an unwilling employer to withhold Chapter 13 payments from the debtor’s wages to be forwarded to the trustee for distribution to creditors. Larry and Bobbi Jo Worrell (hereinafter debtors) filed for protection under 11 U.S.C. § 1301 et seq. on July 20, 1989. The debtors Chapt...
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DECISION I. INTRODUCTION Numerous motions and cross-motions for summary.judgment pursuant to Bankruptcy Rule 7056 have been filed in these consolidated adversary proceedings, by which many unpaid sellers and suppliers of perishable agricultural commodities (“claimants”) to Richmond Produce Company, Inc., the above-debtor (“debtor”), seek to establish that accounts receivable proceeds...
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ORDER On July 12, 1988, Midwest Commerce Banking Company (“Midwest”) filed its Complaint to Determine Extent and Priority of Liens in Property of the Estate against Stookey Holsteins, Inc., the debtor-in-possession, and Select Embryos, Inc. (“Select”). The parties filed their Joint Stipulation of Facts on February 16, 1989, and the court took the matter under advisement on March 31,1989, ...
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ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT This adversary proceeding came on before the Court on March 5, 1990, for hearing on Defendant’s motion for dismissal and Plaintiffs’ motion for summary judgment. Defendant appeared by its attorneys, Paul A. Weingarden and Marjorie J. Holsten. Plaintiffs appeared by their attorneys, Andrew Druck...
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HEARING ON ORDER TO SHOW CAUSE AND COMPLAINT FOR AN ORDER DIRECTING PAYMENT OF CERTAIN TRUST FUNDS The debtor-plaintiff, Westchester County Civil Service Employees Association, Inc. Benefit Fund (“the debtor”) seeks a preliminary injunction in its adversary proceeding to compel the defendant, The Civil Service Employees Association, Inc., Local 1000 AFSCME AFL-CIO (“AFSCME”) to turn over the fund...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Advance-United Expressways, Inc. (the “creditor”) against Fred J. Wines (the “debtor”) to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6), and upon a claim seeking to impose a constructive trust, and the Court having heard the testimony, e...
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MEMORANDUM OPINION ON GENEVIEVE LUCHENBILL’S MOTION TO DISMISS AND ON CONFIRMATION OF DEBTORS’ PLANS OF REORGANIZATION On October 11, 1988, Wyman R. Luchen-bill and Luchenbill Grain, Inc. filed separate petitions for relief under Chapter 12 of the Bankruptcy Code. Although both debtors are from Shiawassee County, which is next door to Genesee County, where this Court sits, the petitions f...
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MEMORANDUM AND DECISION ON MOTION FOR SUMMARY JUDGMENT The defendant, First Software Corporation (“FSC”), moves for summary judgment. For the reasons that follow, the motion is denied. BACKGROUND On April 19, 1986, FSC filed a petition under chapter 11 in the District of Massachusetts. On February 20, 1987, that court entered an order confirming FSC’s plan of reorganization. On October 29, 1986, ...
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DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT DUE THE PUTNAM COUNTY NATIONAL BANK OF CARMEL Plaintiff, The Putnam County National Bank of Carmel, commenced an adversary proceeding against the Chapter 7 debtors, David B. Hough and his wife, Nanci Hough, for a determination that their obligation to the plaintiff, in the principal amount of $69,500.00, is nondischargeable under...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter comes before the court on the Debtor’s complaint to avoid a fraudulent transfer of her home at a sheriff’s sale. 1 The Court held a trial on this matter on January 18,1990. After considering the testimony of the witnesses and the evidence offered by the parties, the Court finds that the sheriff’s sale was a fraudulent transfer...
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ORDER DENYING MOTION FOR JUDGMENT ON THE PLEADINGS WITH REGARD TO NINTH CLAIM FOR RELIEF This Chapter 11 adversary proceeding concerns the termination of a wholesale beer distributor agreement. The plaintiff, and distributor under the agreement, seeks various grounds for relief, including treble damages in its ninth claim of relief for alleged unfair and deception trade practices prohibited by th...
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ORDER ON MOTION TO DISMISS AD-VISSARY [SIC] SEEKING EXCEPTION OF DISCHARGE THIS CAUSE came to be heard on the Defendant/Debtor’s Motion to Dismiss Ad-vissary [sic] Seeking Exception of Discharge on February 15, 1990. The Motion to Dismiss was based on the contention that the Plaintiff’s Objection to Discharge was filed one day late. This Court has considered the Motion, together with the record, a...
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ORDER ON MOTION (OR PETITION) FOR VOLUNTARY WITHDRAWAL OR DISMISSAL OF PETITION FOR RELIEF VOLUNTARILY FILED UNDER CHAPTER 11 OF THE BANKRUPTCY CODE FOR THE PURPOSE OF TERMINATING CASE AND RENEWED MOTION TO DISMISS THIS is the third Chapter 11 case commenced by the Mandalay Shores Cooperative Housing Association, Inc. (MSCHA), and the matters under consideration are two Motions. The first is filed...
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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 dis-chargeability vel non of an obligation imposed by a divorce decree upon Paul W. Pattie (Debtor) in the amount of $250,000. The original Complaint was filed by the Debtor and sought determination by this Court that a provision directing the Debtor t...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS is a Chapter 7 liquidation case and the matters under consideration are claims set forth in a five-count Complaint filed by Terry E. Smith (Trustee), the duly appointed and acting Trustee in charge of the administration of the estate of James A. Wittenburg, Sr. (Debtor). The matters presented for this Court’s consideration are Motions for Summary Judgment...
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MEMORANDUM OPINION Before the Court is Plaintiff’s Complaint Objecting To Discharge of Debts. Specifically, Plaintiff Stephanie D. Soroka, former wife of Defendant David S. Korn-guth (“Debtor”), seeks to have certain debts assumed by Debtor under a separation agreement declared nondischargeable. Plaintiff maintains that Debtor’s obligation to pay a second mortgage on their...
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MEMORANDUM OPINION AND ORDER This is a declaratory judgment action on an issue pertinent to another lawsuit between the parties presently scheduled for trial. See 28 U.S.C. § 2201. Collated Products Corporation, a Chapter 11 debtor, seeks a determination as to whether United Jersey Bank has a security interest in $329,767 deposited in Collated’s “commingled” operating account at the Delaware Trus...
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FINDINGS AND CONCLUSIONS MOTION TO AVOID GARNISHMENT A telephonic hearing was held on November 2, 1989, on Debtor’s Motion to Avoid Garnishment and creditor Community National Bank of Muscatine’s resistance thereto. Walter Conlon appeared on behalf of the Debtor, Cynthia Jean Yetter (hereinafter “Debtor”), David R. LaFontaine appeared on behalf of creditor Community National Bank of Musca...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS IS a Chapter 11 case and the matter under consideration is a Motion filed by Florida Federal Savings Bank (Florida Federal) who seeks relief from the automatic stay in order to enforce its claimed interest against certain properties of APF Industries, Inc. (Debtor). Florida Federal seeks relief under Section 362(d)(1) of the Bankruptcy Code by alleging tha...
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ORDER Hearing was held January 8, 1990, on the Debtors’ Motions for Recovery of Damages in accordance with 11 U.S.C. § 362(h) in the above-captioned cases. The Motions are based on identical factual situations and law, so therefore these cases are consolidated for purposes of this decision. The issues have been briefed and this Court deems the matters ripe for decision. The facts rel...
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MEMORANDUM OPINION Before the Court is the Trustee’s Complaint To Recover Fraudulent Conveyances pursuant to 11 U.S.C. § 548(a). He seeks to avoid and/or recover for Debtor’s estate the value of four (4) parcels of real estate transferred by Defendant Mario J. DeVito (“Debtor”) to Defendant Kimberlee *530 DeVito, his wife, pursuant to a Marriage Dissolution Agreeme...
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*780 TABLE OF CONTENTS Page I.OVERVIEW OF THE CASE .781 A. Description of Parties in Interest.781 B. Professionals Employed by Parties in Interest.781 C. Plans of Reorganization.783 II.FACTORS CONSIDERED IN FINAL COMPENSATION.783 A. Statutes.783 B. Administrative Orders.784 C. Other Factors Related to Final Compensation .784 1. Deferred...
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OPINION Before ASHLAND, VOLINN and PERRIS, Bankruptcy Judges. The attorneys for the Chapter 7 trustee appeal the bankruptcy court’s disallowance of fees incurred in opposing a creditor’s successful objection to the attorneys’ final fee application, the court’s disallowance of interest on the attorneys’ fees, and the court’s disallowance of fees incurred in determining whether the att...
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MEMORANDUM OPINION Two motions pertaining to the above-captioned adversary action are before the Court at this time. Defendants Glenn A. Main, III and Darla A. Main (“Debtors”) have brought a Motion To Dismiss the Complaint Objecting to Dischargeability Of A Debt and/or To Discharge. Debtors argue that timely notice of their bankruptcy petition was given to Plaintiff Natio...
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MEMORANDUM OPINION The Debtor has moved to dismiss Count I of Chicago City Bank & Trust Company’s first amended complaint to determine the dischargeability of a debt and objecting to the discharge of the Debtor. Count I alleges that the Debtor is not entitled to a discharge of the debt due the Bank because that debt is for embezzlement or larceny of funds in which the Bank had an interest...
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ORDER DENYING SUMMARY REJECTION OF PLAN This matter came on for a hearing on February 2, 1990 upon the Motion of Martin Rochman and Robert Richards, two common stockholders of the debtor, for an Order Summarily Rejecting the Plan of Reorganization. The Motion in question was filed on January 12, 1990. All parties present having been heard, and the court having reviewed the pleadings and the rec...
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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 three-count Complaint Objecting to the Discharge of the Debtor filed by Barnett Bank of Tampa, N.A. (Barnett). At the final evidentiary hearing, Barnett elected not to proceed forward with the claim set forth in Count I, in which it sought denial of the Debtor’s discharge...
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ORDER Before the court are the objections of lessors Gwinnett Place Associates, L.P. d/b/a Gwinnett Place Mall (“Gwinnett Place”), CF Shannon Associates d/b/a Shannon Southpark (“Shannon”), JMB Group Trust III d/b/a Hickory Ridge Mall (“Hickory Ridge”), Ridgeland Associates d/b/a Northpark Mall (“Northpark”), JMB Group Trust I d/b/a Dayton Mall (“Dayton”), New England Development, Inc. d/...
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AMENDED MEMORANDUM OPINION AND ORDER ON OSC CONCERNING DISMISSAL FOR CAUSE PURSUANT TO § 1112 OF BANKRUPTCY CODE This voluntary chapter 11 reorganization proceeding commenced by Sirius Systems, Inc. on November 14, 1989 was the subject of an Order to Show Cause entered sua *51 sponte by this Court on the same date, based on the pleadings filed with regard to com...
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MEMORANDUM OPINION The present dispute concerns the treatment of a lien on a debtor’s principal residence under a Chapter 13 plan of reorganization. The court finds that this matter is a core proceeding under 28 U.S.C. § 157(a), (b)(2)(B), (G) and (L) and concludes that as a matter of law, a Chapter 13 plan may not alter the secured claim of a holder of a claim secured only by the principal r...
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ORDER VALUING NCNB’S SECURED CLAIM On June 9, 1989, Debtor filed its Plan of Reorganization and Disclosure Statement (hereinafter the “Plan” and the “Disclosure Statement”). A hearing on approval of the Disclosure Statement was originally set for July 13, 1989, continued to August 16, 1989, then again continued until after the filing of an amended disclosure statement. The First Amen...
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MEMORANDUM AND ORDER I. ISSUE The principal questions raised in this proceeding are the extent to which a debtor’s interest in a defined contribution plan, qualified under The Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA), and tax exempt pursuant to § 401 of the Internal Revenue Code, 26 U.S.C. § 1 et seq., is property of...
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DECISION This matter comes before the Court on the motion filed by JANE GNIDOYEC, DAVID TOWELL and ROBERT DAWSON (MOVANTS), and joined in by FRANK HAMPTON, JR., Supersedeas Bond Trustee, to reconsider this Court’s opinion entered October 18, 1989. The facts of this case are fully set out in that opinion at In re Alwan Bros. Co., Inc., 105 B.R. 886 (Bkrtcy.C.D.I11.1989), and will not be restat...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the . Trustee’s Motion for Summary Judgment Against Defendants R. Betz, Coon, Hen-ninger, R. Jesionowski, McGhee, Thompson, Todd, and Wolfram. The Trustee filed a Memorandum in Support of his Motion for Summary Judgment. Memoranda in Opposition to the Trustee’s Motion for Summary Judgment were filed by Roscoe R. Betz, Jr., ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Plaintiff’s Motion to Alter or Amend Judgments Entered on January 19, 1990. At the Hearing, Attorneys for J. Robert Jesionowski, John E. Thompson, and George M. Todd appeared and presented Objections to the Motion of the Plaintiff Trustee. Written arguments in support of the Motion were filed by the Trustee and the Se...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on J. Robert Jesionowski’s Motion for New Trial and/or To Alter or Amend Judgment. In the Motion, Mr. Jesionowski sets forth several reasons why the Court should grant a new trial or alter or amend its January 19, 1990 decision holding the general partners liable for the sum of Twenty-nine Million Dollars ($29,000,000.00). The Trustee...
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MEMORANDUM OPINION AND ORDER MEMORANDUM OPINION AND ORDER This cause comes before the Court on Thomas L. McGhee’s Motion for Extension of Time to File Notice of Appeal and Memorandum in support of the Motion. The Court has reviewed the Motion, and the Memorandum, as well as the entire record in this adversary case. Based on that review, and for the following reasons, the Court finds that the Moti...
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*135 MEMORANDUM The issue before us in the instant adversary proceeding is whether the Defendant, the Debtor’s former accountant, who filed a Proof of Claim in this case prior to the institution of the proceeding in question and who failed in a motion to withdraw the reference of this proceeding to this district court, is entitled to a jury trial of this proceeding in this court....
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111 B.R. 976 (1990) In re OTASCO, INC., Debtor. WHEELS, INC., Plaintiff, v. OTASCO, INC., a Nevada corporation, Defendant. Bankruptcy No. 88-03410-W, Adv. No. 89-0204-W. United States Bankruptcy Court, N.D. Oklahoma. March 27, 1990. *977 Brian J. Rayment, Joyce and Pollard, Tulsa, Okl., for plaintiff; Kevin T. Keating and James D. Harrington, McDermott, Will & Emery, Chicago, Ill., of counsel...
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MEMORANDUM OPINION AND ORDER ON COMPLAINT TO DETERMINE NATURE, EXTENT AND VALIDITY OF LIEN This core proceeding 1 came on for hearing on the adversary complaint 2 of Paul Rayburn Henderson and Barbara Henderson, (“Mr. Henderson” and “Mrs. Henderson”) to determine the nature, extent and validity of a lien. The issue for judicial determination is whether the promissory...
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ORDER ON DEBTOR’S OBJECTION TO TRUSTEE’S NOTICE OF INTENT TO DISTRIBUTE ESTATE Debtor Helen Kloeble filed her petition in bankruptcy under Chapter 7 on May 6, 1988. In her schedules, she listed priority tax debts of $6,861.08 to the IRS, $17,-828.41 to state agencies, and $166.34 to San Diego County. Debtor listed her personal Social Security number on her petition. Debtor’s estate had a sing...
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*479 MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT TO ADD ADDITIONAL DEFENDANTS By this adversary proceeding, the plaintiff, Machinery and Steel Service, Inc. (the “Debtor”), seeks to avoid and recover two payments, one which the Debtor contends is a preferential transfer under 11 U.S.C. § 547(b) and another ...
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MEMORANDUM OPINION A contested hearing was held on March 13, 1990, concerning the value of the surface and mineral estates of this Debtor in a 172.479 acre tract of land out of the J.Y. Wallace League Abstract 22, and the Claiborne Lawrence League Abstract 189, approximately 14 miles north of Giddings, Lee County, Texas (the “Property”). The purpose of the valuation is for use in the Debt...
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DECISION ON MOTION FOR AN ORDER DISMISSING CASE PURSUANT TO SECTIONS 1307(c) AND 109(e) As an undersecured creditor in this Chapter 13 case, 53 West 72nd Street Realty Associates (“Realty Associates”) has moved for an order pursuant to 11 U.S.C. §§ 1307(c) and 109(e) dismissing this Chapter 13 case because the debtors’ noncontin-gent, liquidated, unsecured debts exceed the $100,000.00 jurisdict...
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OPINION AND ORDER SUSTAINING OBJECTIONS TO CONFIRMATION OF DEBTOR’S PLAN AND GRANTING TIME TO DISMISS OR CONVERT This matter is before the court upon objections to confirmation of Debtor’s chapter 13 plan. Upon consideration thereof the court finds that said objections are well taken and that Debtor should be granted ten days from the date of this order in which to dismiss his case or convert i...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Trustee’s Motion to Strike Seventh Defense and For Summary Judgment on Defendant John E. Thompson’s Counterclaim. The Defendant, John E. Thompson, has filed a Memorandum in Opposition to Plaintiff’s *859Motion to Strike and Motion for Summary-Judgment. The Trustee and the Securities Investor Protection Corporation have filed a ...
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DECISION DETERMINING WHETHER DEBTOR’S LEASE IS EXECUTORY CONTRACT Debtor, Emilio Cavallini, Ltd. (“Cavalli-ni”), has moved, pursuant to § 365(d)(4) of the Bankruptcy Code (the “Code”) to extend its time to assume or reject a non-residential real property lease. The landlord, Madison Tower Associates (“Madison Tower”), has filed a cross-motion for an order: (1) vacating the automatic stay ...
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MEMORANDUM ORDER FOR JUDGMENT This adversary proceeding came on before the Court on March 2, 1989, for trial. Plaintiffs appeared personally and by their attorney, Thomas W. Van Hon. Defendant State Bank of Gibbon (“Defendant”) appeared by its attorney, Clark A. Tuttle, III. There was no appearance on behalf of De *305 fendant the Federal Land Bank of St. Paul. 1 U...
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OPINION Presque Isle Apartments, L.P. (“Debt- or”) filed its petition under Chapter 11 of the Bankruptcy Code on February 12,1987. Landmark Savings Association, formerly known as Second Federal Savings and Loan Association of Pittsburgh (“Landmark”) holds a first mortgage note on the debtor’s 96 unit apartment complex. The lien position of Landmark had its genesis when Country Place ...
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*84 ORDER ON DEBTOR’S MOTION FOR VALUATION OF SECURITY AS TO THE UNITED STATES AND THE INTERNAL REVENUE SERVICE THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Valuation of Security of the United States. The security interest is a tax lien asserted by the Internal Revenue Service. The Court has considered the Motion, together with the recor...
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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 dis-chargeability vel non of a debt admittedly due and owing by Glenn M. Fish (Debtor) to Russell A. Martocci (Plaintiff). The claim of nondischargeability is based on § 523(a)(2)(A), and the proposition urged by the Plaintiff is that the Debtor obtained money ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 7 liquidation case and the matter under consideration is an Amended Complaint filed by First Leasing and Funding of Florida, Inc. (Plaintiff), which seeks a determination that the debt owed by Robert W. Black and Mary S. Black (Debtors) to the Plaintiff is a nondis-chargeable obligation pursuant to § 523(a)(2)(A) of t...
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ORDER The continued hearing upon the Motion of the United Missouri Bank of Paris to Consolidate this case with Case No. 90-20013-BKC-JJB (Motion T), and the Debtors’ oral motion to join therein was called on March 27, 1990. The Debtors and the United Missouri Bank of Paris presented oral arguments upon the record. The Farm Credit Bank of St. Louis and the Farmers Home Administration appeared by C...
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DECISION AND ORDER Before the Court is the motion of the debtor, Alfred Gastonguay, to avoid the lien of a creditor, Mapleville Mini Mart (“Mapleville”), pursuant to 11 U.S.C. § 522(f). After hearing on December 5, 1989, the parties were requested to submit memoranda addressing the issue of the debtor’s claim of exemption in property held as tenants by the entirety,1 vis-a-vis the applicability of...
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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 owed to Bombardier Credit, Inc. (Bombardier) by Augustine Calvo (Debtor). Bombardier filed a Complaint seeking an exception to discharge pursuant to § 523(a)(2)(B) and § 523(a)(4) of the Bankruptcy Code. In Count I of the Complaint, ...
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ORDER ON MOTION FOR SUMMARY JUDGMENT ON TRUSTEE’S OBJECTION TO CLAIM OF CREDITORS ORIOL ACCELUS, et al THIS is a Chapter 11 case and the matter under consideration is a Motion for Summary Judgment filed by Florida Rural Services, Inc. (Rural Services), on behalf of 65 migrant farm workers (Movants) who were employed by Fulwood Enterprises, Inc. (Debtor), in the fall of 1980. The Motion is filed in...
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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 dis-chargeability vel non of a debt owed to the Plaintiff, Chevy Chase Federal Savings Bank (Bank), by the Defendant, Alan Ge-treu (Debtor). It is the contention of the Bank that the Debtor’s debt owed to it is not dischargeable, pursuant to 11 U.S.C. § 523(a)...
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OPINION AND ORDER DETERMINING SPECIFIC DEBT TO BE NONDIS-CHARGEABLE AND AWARDING JUDGMENT This matter came on for trial upon plaintiff’s complaint to determine the discharge-ability of debt at which time the parties requested that the court make its decision based upon the record, and the later submitted stipulation of facts and addendum thereto. Upon consideration thereof, the court find...
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MEMORANDUM AND ORDER ON MOTIONS OF UNITED STATES TO DISMISS ADVERSARY PROCEEDING AND TO WITHDRAW PROOF OF CLAIM BACKGROUND From an undisclosed time in 1982 through March, 1984, the debtor and Robert McLeod were active in a business known as Norman Leonard Enterprises, Inc. (“NLE”). When NLE failed to pay employee withholding 1 and social security taxes 2 for the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW All of the above-styled bankruptcy cases are pending before this court under title 11, chapter 13, United States Code. In each case Continental Brokers, Inc., filed a claim for postpetition insurance premiums, to which the chapter 13 standing trustee has filed an objection. The term “debtor” herein includes both debtors in a joint case. Findings of Fac...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 11 reorganization case and the matter under consideration is an adversary proceeding filed by Florida Precast Concrete, Inc. (Debtor), against the City of Orlando (City), seeking to “compel turnover of property of the estate” [sic] and payment of money due under certain contracts. The claim in Count I of the five-count C...
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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 dis-chargeability vel non of a debt owed by the Defendant, Donald J. Klag (Debtor) to American Investment Bank, N.A. (Bank). The claim of nondischargeability asserted by the Bank is based on Section 523(a)(2)(B) of the Bankruptcy Code. At. trial, the parties ...
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MEMORANDUM The chapter 7 trustee has brought an action seeking to avoid as preferential transfers the security interests held by defendant Ford Motor Credit Company (“Ford Motor”) on two automobiles. Having considered the evidence introduced at the trial of this case, together with the briefs filed by the parties, the court now submits its findings of fact and conclusions of law pursuant to Bankr...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This action came on for trial before the Court and the issues having been duly tried, the parties rested and final argument was heard. The Court hereby makes and enters the following Findings of Fact and Conclusions of Law: 1 FINDINGS OF FACT Introduction 1. The Debtor-Defendant Richard C. Scarlata (“Scarlata”) filed his C...
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ORDER ON OBJECTION TO CLAIMS THIS CAUSE came on for hearing with notice to all parties in interest upon Objections to Claims No. 14 and No. 15 filed by the Debtor in the above-captioned Chapter 11 case. Claim No. 14 was filed by Donald Nelson as an unsecured claim in the amount of $19,000.00 based upon a contract to sell cattle to a business in which the Debtors were involved. Although the allege...
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OPINION A. INTRODUCTION After a seemingly interminable series of preliminary skirmishes, the instant adver *859 sary proceeding, in which the Debtors mount a broadside attack on not only a sheriff’s sale of their home but also the legality of the underlying obligation default of which was the basis of that sale, is ready for disposition. As we indicated throughout the co...
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MEMORANDUM OPINION This matter is before the court upon the United States Trustee’s (“UST”) motion to dismiss the debtors’ chapter 7 case for substantial abuse pursuant to 11 U.S.C. § 707(b). 1 This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) & (0). The UST argues the debtors have sufficient income, after expenses, to fund a chapter 13 plan and pay off their unsec...
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OPINION AND ORDER This proceeding is before the Court on a Motion requesting Summary Judgment filed by the debtors. For the reasons provided. herein, the Motion is granted. The facts are as follows. The defendants hold a third mortgage position on certain real estate owned by the debtors in Mifflenburg, Pennsylvania. On or about February 25, 1987, the debtors filed their Chapter 13 plan under the...
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OPINION AND ORDER The plaintiff, Williamsport National Bank (hereinafter “plaintiff”) commenced this proceeding seeking an exception to the male debtor’s discharge pursuant to 11 U.S.C. § 523(a)(2)(A) of the Bankruptcy Code. We find that under the circumstances of this case, the debt is nondischargeable. Before proceeding further we note that the complaint filed against Elizabeth Sut...
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MEMORANDUM The trustee, acting as a hypothetical lien creditor under the provisions of 11 U.S.C.A. § 544(a)(1) (West Supp.1989), seeks to avoid the lien of Tennessee State Bank in certain of debtor’s inventory. The trustee contends the bank’s security interest in the inventory was not perfected because the bank filed a defective financing statement. The bank contends the information provi...
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DECISION ON MOTION TO DISMISS COMPLAINT AND TO CANCEL LIS PENDENS The defendant, Tri-Equities, Inc., has moved pursuant to Fed.R.Civ.P. 12(b)(6), as adopted by Bankruptcy Rule 7012(b), for an order dismissing the complaint filed by the trustee in bankruptcy of the above captioned consolidated debtors. The defendant maintains that the trustee’s complaint in his adversary action against the...
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DECISION ON APPLICATIONS FOR INTERIM ALLOWANCES The Chapter 11 trustee and his attorneys have applied for interim allowances of compensation for their services in this involuntary Chapter 11 case. On February 9,1989, an involuntary petition for relief under Chapter 11 of the United States Bankruptcy Code was filed by one of the general partners of the debt- or, Lehal Realty Associate...
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*585 DECISION AND ORDER The Debtor seeks an order authorizing the retention of unidentified attorneys allegedly utilized in the ordinary course of business and authorizing the payment in full of the fees of those attorneys “in the manner customarily made” by the Debtor up to $50,000 per quarter without any order under § 331 of the Bankruptcy Code, 11 U.S.C. § 331 (1986), but subj...
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DECISION ON MOTION AND CROSS MOTION FOR DEFAULT INTEREST AND MODIFICATION OF ATTORNEYS’ FEES The Trust Company of New Jersey (“TCNJ”) has moved for an order pursuant to 11 U.S.C. § 506(b) of the Bankruptcy Code for interest accrued on the principal amount of its state court mortgage foreclosure judgment at the default rate specified in the mortgage note through the date on which the mortgaged p...
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DECISION AND ORDER The instant motion to dismiss or for summary judgment brings to the fore consideration of the scope of the liability and immunity of bankruptcy trustees and the auctioneers they hire. In its complaint, Plaintiff Dana Commercial Credit Corporation (“Dana”) alleges to have consented to an auction sale (the “Auction”) by Defendant Alan Nisselson, Trustee for Center Te...
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MEMORANDUM AND DECISION ON UNITED STATES’ MOTION TO DISMISS COMPLAINT TO AVOID TAX LIEN The Internal Revenue Service moves to dismiss the plaintiff’s complaint to avoid *482 the IRS’ lien on real property co-owned by the plaintiff. BACKGROUND On March 10 and June 9, 1986, the IRS assessed the plaintiff $678.20 and $7,504.02, respectively, as a responsible person und...
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MEMORANDUM This case is before the court upon the trustee’s complaint to avoid an alleged preferential transfer of a security interest in a 1987 Dodge Charger. The defendant disputes the trustee’s contention that the transfer was preferential. Having considered the evidence introduced at the trial of this matter and having considered the arguments of the parties, the court now submits its finding...
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OPINION AND ORDER Before the Court for consideration are cross motions for Summary Judgment. This matter was initiated by a Complaint of James J. Haggerty, Esquire, Trustee for Blue Coal Corporation and Glen Nan, Inc. (hereinafter “Trustee”) pursuant to § 70(e) of the Bankruptcy Act seeking to preserve for the benefit of the estate certain liens and security interests formerly held by one of the ...
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MEMORANDUM OPINION The matters considered here are the motions of the Operating Trustee to determine the legal nature and identity of the Debtor entity, and thereafter to compel the turnover of certain property alleged to be property of the estate. The issues were submitted to the Court upon oral argument and the written memoranda submitted by the Trustee and by the attorney for Robert A. Boehm, a...
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OPINION Erie Hilton Joint Venture, a Pennsylvania Limited Partnership doing business as The Quality Hotel Plaza (“Hilton”) filed its petition under Chapter 11 of the Bankruptcy Code on October 12, 1989, one day prior to a scheduled execution sale of Hilton’s business premises. Prudential Insurance Company of America (“Prudential”) filed the within Motion to Dismiss Chapter 11 Petition or in the Al...
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ORDER ON MOTION FOR SANCTIONS UNDER 11 U.S.C. § 362(h) On September 26, 1985 debtor John Pe-truceelli filed his petition for relief under Chapter 13. His principal debts were tax obligations, the bulk of which were owed to the IRS for income taxes from 1974-1984, and for certain withholding taxes for 1980-1985. Debtor is a practicing attorney. The precipitating events for his bankruptcy f...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Debtors’ complaint to determine discharge-ability of certain tax obligations owed by the Co-debtor, Frederick Fernandez to the Internal Revenue Service (IRS). Following a trial on the issues, a review of the evidence admitted and of the arguments of counsel, it is herein determined that the subject tax obligations ar...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Official Bondholders Committee’s Motion for Extension of Time to Object to Entry of Order for Relief and the Debtor’s Objection thereto. On December 5, 1989, Colorado Centre Metropolitan District (“District”) filed its voluntary petition under Chapter 9, Title 11, U.S.C. On January 19, 1990, this Court issued its Order f...
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OPINION Before the court is a complaint filed by First Baptist Church (“plaintiff”) objecting under 11 U.S.C. § 523(a)(2)(A) 1 to the discharge of a debt owed to it by debtor. For the reasons set forth below, we find that plaintiff failed to meet its burden of proof and that the debt is dischargeable. Debtor is a roofing contractor who, along with his wife, were the sole shareholders in a c...
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AMENDED MEMORANDUM OF DECISION There are currently pending before the court two motions that raise the recurring question of whether a Chapter 11 debtor filed its petition in good faith. N.R. Guaranteed Retirement, Inc. (“N.R.”), the debt- or, was incorporated less than three weeks before it filed its petition. Its only substantial asset is an office and retail building in downtown Chicag...
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MEMORANDUM OF OPINION AND ORDER The matter before the Court is the application of Rosen & Co. (Rosen) auctioneers, for allowance and payment of fees and expenses incurred in the sale of assets of the above-captioned estate. Rosen was appointed by Court order dated August 11,1988, to conduct a public sale of Debtor’s assets. The sale was duly conducted on August 23, 1988 on the premises of the Deb...
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OPINION Issue The issue is whether a Chapter 13 debtor may recover, as a fraudulent conveyance under Bankruptcy Code § 548, the title to his residence which had been lost over five months prepetition through a fully consummated tax sale for an inadequate price where the only creditors are the overse-cured first mortgagee and the adequately secured holder of a lien on debtor’s automobile. We...
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OPINION AND ORDER The Court considers to what extent a debtor with a drug addiction is responsible for his actions. The case comes before the Court on an objection to the discharge of the debtor, Charles Wayne McManus. Linda Lee Ehlers McManus, the plaintiff, alleges that the debtor should not be discharged from his debts because of multiple violations of 11 U.S.C. § 727. Stipulations, testim...
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MEMORANDUM OPINION Trial was due to commence on the above-styled adversary proceeding on January 26, 1990. During a status conference scheduled on January 16, 1990, the parties requested that oral arguments be heard on January 26, 1990, in lieu of trial. At the conclusion of oral arguments, the Court took the matter under submission. The material facts are not in dispute and may be b...
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ORDER ON WHEATSTATE OILFIELD SERVICES, INC. CLAIM This matter is before the Court upon the trustee’s motion to disallow the claim of *1020 Wheatstate Oilfield Services, Inc. (Wheats-tate), and the objection thereto filed by Wheatstate. The essential facts of the matter are as follows. Wheatstate provided pre-petition services to National Oil. Wheatstate timely filed its ...
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FINDINGS AND CONCLUSIONS The matters being considered here are the applications of counsel for the allowance of legal fees. Upon consideration of the record as a whole, the Court enters the following findings and conclusions. This is a core proceeding pursuant to Section 157(b)(2)(A), (B), (C) and (O). The Debtors commenced this case by filing a Petition for relief under Chapter 13 on October 17, ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The instant motion for summary judgment pursuant to Federal Bankruptcy Rule (“Bankr.R.”) 7056, which incorporates by reference Federal Rule of Civil Procedure (“Fed.R.Civ.P.”) 56, is filed by Defendant, Roy S. Sanders, Esq. (“Sanders”) in the adversary proceeding (Adv.Pro. No. 89-0052) commenced by the Chapter 7 Trustee o...
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DECISION BACKGROUND The focus of this dispute is upon a huge English Tudor stone mansion at 6454 Washington Circle, Wauwatosa, Wisconsin (“home”). It is located in the Washington Highlands, an area which was recently added to the National Register of Historic Places. Pending before this court are a motion of the United States Trustee for dismissal and a motion of Wauwatosa Savin...
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MEMORANDUM OPINION This matter comes before the court on the cross motions of Joel A. Schechter, Trustee in Bankruptcy (“Trustee”) and Abbott Laboratories Stock Retirement Plan (“Stock Plan”), Abbott Laboratories Annuity Retirement Plan (“Annuity Plan”) and Retirement Program Committee (“Committee”) (collectively “Defendants”) for Summary Judgment pursuant to Rule 56 of the F.R.C.P., appl...
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MEMORANDUM OPINION This matter comes before the Court on the motion for contempt for violation of the automatic stay and for sanctions filed by Butler/Binion Group, Ltd. (''Butler/Bin-ion”) against Gallatin County State Bank (the “Bank”). For the reasons set forth herein, the Court having considered all of the pleadings and evidence adduced at trial, hereby denies the relief sought. The C...
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ORDER GRANTING TRUSTEE’S APPLICATION FOR DAMAGES FOR VIOLATION OF AUTOMATIC STAY On April 3,1990 a hearing was conducted on the Chapter 7 trustee's motion for contempt for violation of the automatic stay. Debtor M & J Feed Mill, Inc. appeared by its president Paul O. Johnson and attorney James Doran; respondent Southwest Village Water Company appeared by its secretary Paul O. Johnson and ...
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MEMORANDUM OPINION I. 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)(A), which the Court may hear and determine. II. PROCEDURAL BACKGRO...
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ORDER THIS MATTER comes before the Court upon Debtor’s Objection to Trustee’s Motion to Turn Over Property. A hearing was held on March 22, 1990, and following are the findings of the Court. Debtor’s Chapter 7 petition was filed on October 13, 1989. Several days prior to this, the Debtor sent to her landlord a check in the amount of $700 as payment *28for her October rent. The landlord received th...
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ORDER PROHIBITING DEBTOR’S USE OF CASH COLLATERAL AND REQUIRING TURNOVER OF RENTS THIS CAUSE came before the Court for hearing in Miami on Thursday, March 22, 1990, upon the Debtor’s Motion for Use of Cash Collateral, and the objection to that Motion interposed by secured creditor Professional Savings Bank. Also scheduled for hearing was the Debtor’s Motion to Approve Construction Contract and ...
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MEMORANDUM OPINION This matter comes before the Court upon the filing of a joint involuntary petition against Charles E. Jones and Frances H. Jones (“debtors”) by Citizens Bank and Trust (“Citizens”), Citizen’s motion to dismiss Charles E. Jones as a debtor in this proceeding, and the debtors’ motion to dismiss the case. Finding that the Court lacked subject-matter jurisdiction over the j...
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MEMORANDUM OPINION In this chapter 13 case, the debtor’s plan proposes to treat the deed of trust claim of Landmark Financial Services as partially unsecured pursuant to 11 U.S.C. § 506. Landmark objects to confirmation of the debtor’s plan because the plan fails to treat its claim as fully secured in contravention of 11 U.S.C. § 1322(b)(2). The facts are not in dispute. Landmark hol...
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MEMORANDUM DECISION This contested matter came before the court on the motion of the debtors Paul and Helen Dillon (Helen Dillon hereinafter referred to as Dillon) under 11 U.S.C. § 522(f) 1 to avoid a judicial lien held by Provo School District Credit Union (Credit *48 Union). Dillon asserts that the property to which the lien attaches qualifies under the provisions of the Utah Exemptions ...
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MEMORANDUM OF DECISION Donna Hutchins (“Plaintiff”) and David Hutchins (“Debtor”) were formerly married. The Debtor has received his discharge in bankruptcy; the trustee has filed a no asset report in the Debtor’s case. Section 523(a)(5) of 11 U.S.Code excepts from discharge debts owed “to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such...
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MEMORANDUM OPINION Before me is the debtor’s complaint against the Pennsylvania Liquor Control Board, which asks me to “Compel and Direct” the Board to renew the debtor’s liquor license, utilizing the equitable powers granted by 11 U.S.C. § 105(a). 1 The parties by agreement have submitted a stipulation of facts, which they assert contains all the evidence relevant to my resolu...
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*454 MEMORANDUM OPINION The Court has considered the motion of Frank J. Santoro, Standing Chapter 13 Trustee, to determine whether the debtors’ chapter 13 plan, which has been confirmed, complies with provisions of 11 U.S.C. § 1322(b)(5). For the reasons stated in this opinion, the Court finds that the plan is in compliance with § 1322(b)(5). The Court will enter an amended ...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on June 14 and 15, 1989. At the conclusion of the Hearing the Court ordered that briefs in lieu of closing argument be submitted and on July 17, 1989, set out a briefing schedule. On August 29, 1989, the Court gave the Debtor an extension of time to file his brief to 10 days after receipt of the transcript of the hearing. After ...
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AMENDED MEMORANDUM DECISION AND ORDER Debtor, Sally E. Pfingsten, filed a motion to avoid a lien under § 522(f) of the Bankruptcy Code on September 28, 1989. Marvin Pfingsten, holder of the lien, objects to this motion. The issue is whether a lien created in the divorce decree against the Debtor’s homestead property constitutes an avoidable judicial lien under 11 U.S.C. § 522(f). The real property...
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MEMORANDUM OPINION This case came before the Court on the motion of Maryland National Mortgage Corporation (“Maryland National”) and others for relief from the automatic stay as to a deed of trust against realty in which the debtor claims an interest. A combined preliminary and final hearing was held on November 16, 1989, at which time the parties presented evidence and argument. The debtor f...
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OPINION ON DEFENDANTS’ OSSTYN, BAYS, FERNS & QUINNELL, DONALD W. BAYS, P.C., DONALD W. BAYS, RANDOLPH OSSTYN AND WILLIAM FERNS’ MOTION FOR SUMMARY JUDGMENT ON COUNT II OF PLAINTIFFS’ FIRST AMENDED COMPLAINT The debtor, D.C. Equipment (“D.C.”), is involved in the retail sale and service of heavy equipment. Dennis Dubey (“Du-bey”) is the president and chairperson of the board of directors of the de...
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DECISION ON DETERMINATION OF RENTS AND ESCROW MONIES On November 21, 1989, Vienna Park Properties (“Vienna .Park” or “Debtor”) filed a voluntary petition seeking to reorganize under chapter 11 of the Bankruptcy Code (the “Code”). By motion, Trustbank Savings, F.S.B. (“Trustbank”) and United Postal Savings Association (“United Postal”) seek entry of an order pursuant to §§ 363(c), 363...
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MEMORANDUM OPINION On February 1, 1990, the Court held trial on the plaintiff’s dischargeability complaint. At the end of the plaintiff’s evidence, the Court granted the defendant’s motion for an involuntary dismissal pursuant to Rule 41(b), Federal Rules of Civil Procedure and Bankruptcy Rule 7041. Facts The debtor’s mother, Evelyn D. Shumaker, was married to the plaintiff prior to her death i...
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DECISION AND ORDER DISMISSING MOTION OF DEBTOR TO AVOID UNPERFECTED LIEN IMPAIRING DEBTORS’ EXEMPTIONS FOR LACK OF JURISDICTION CAME ON for hearing the motion of Debtors to avoid an unperfected lien held by First National Bank of Poth impairing Debtors’ asserted homestead. Upon consideration thereof, the court finds and concludes that the motion must be dismissed for lack of subject matter juri...
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MEMORANDUM OPINION The general issue before this Court is whether a judgment rendered against the debtor in favor of her ex-husband is a judicial lien of the type that can, and should, be avoided under 11 U.S.C. § 522(f). The debtor herein, Jo Carleen Porter, filed a voluntary petition for relief under Chapter 7, 11 U.S.C. on November 8, 1989. On January 16, 1990 Ms. Porter filed a “...
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OPINION David Amick appeals from the bankruptcy court’s assessment of damages against Amick based upon the court’s finding that Amick knowingly and willingly violated the automatic stay. We affirm. FACTS In October, 1988 Michelle Waller worked as a subcontractor for David Amick Construction, Inc. She testified that on October 26, 1988 she met with David Amick to discuss borrowing $265 from him in...
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MEMORANDUM OPINION The issues presented to the court are: (1) whether to allow the filing of an amended proof of claim; and (2) whether the Chapter 13 trustee can recover the amount overpaid to a creditor and subsequently refunded to the debtors from either the creditor or the debtors. The court will allow the filing of the amended proof of claim and will allow the trustee to recover the amou...
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ORDER DENYING AS MOOT MOTION FOR VALUATION PURSUANT TO SECTION 506(a) CAME ON for hearing the motion of Debtor, for valuation of property pursuant to Section 506(a). Upon consideration thereof, the court finds and concludes that the motion must be denied as moot. BACKGROUND FACTS John T. Saunders is a real estate developer with a long-established reputation in the San Antonio ar...
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ORDER DETERM N IN G RIGHT TO JUR'i TRIAL The Committee of Unsecured Creditors of the North Carolina Hospital Association *760 Trust Fund acting on behalf of the chapter 11 debtor, North Carolina Hospital Association Trust Fund, brought six adversary proceedings against six North Carolina hospitals to recover preferential and postpetition transfers. The defendant hospitals hav...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiff filed this adversary proceeding seeking an exception to discharge pursuant to 11 U.S.C. § 523(a)(2). A trial was held on January 10, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT Plaintiff is the liquidating trustee of the Chapter 11 estates of Alchar Hardware Co...
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MEMORANDUM OPINION CONCERNING GOLDOME REALTY CREDIT CORPORATION’S MOTION FOR RELIEF FROM AUTOMATIC STAY This case is before the Court on the Motion for Relief From Automatic Stay filed by Goldome Realty Credit Corporation (“GRCC”). Hearings on the Motion were held on March 5 and March 14, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusion...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint of the Chapter 7 trustee seeking to recover through quantum meruit the value of services rendered by the debtor to the defendant, and upon the evidence presented at trial, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT Between May 15, 1987, and April 26...
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ORDER ON MOTION TO DISMISS AND MOTION TO CONTINUE This adversary proceeding comes before the Court at the Pretrial Conference for consideration of Defendant, William Kin-dorf, Jr.’s, Motion to Dismiss for lack of subject matter jurisdiction. Upon due consideration of the Motion together with supporting memoranda of law and argument of counsel, the Court determines that the Motion shall be denied o...
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OPINION Before me for resolution is an adversary proceeding brought by William Pox against the debtor, asserting the nondischargeability in bankruptcy of a debt owed to him. The plaintiff argues that the debt is nondis-chargeable pursuant to the provisions of 11 U.S.C. § 523(a)(4) and (a)(6). The joint pretrial statement had made reference to § 523(a)(2), but at the hearing on this matter...
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OPINION OVERVIEW Appellant/debtor Town & Country Home Nursing Services, Inc. (“Town & Country”) commenced an adversary proceeding asserting various claims for relief against defendants/appellees Blue Cross of California and Blue Cross of America (jointly referred to as “Blue Cross”), Health Care Financing Administration (“HCFA”), and the Secretary of Health and Human Services (“Secretary”). Town ...
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FINDINGS OF FACTS AND CONCLUSIONS OF LAW Barnett Bank of South Florida, N.A., (“Barnett Bank”) and Charles W. Grant, trustee, (“Trustee”) filed separate adversary proceedings pursuant to 11 U.S.C. § 727, objecting to the discharge of the debtor, James R. Simmons. These adversary proceedings were consolidated for trial, which was held on November 30, 1989, and January 14, 1990. Upon the evidence...
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MEMORANDUM OF OPINION AND DECISION This matter is before the Court on Count I of the Amended Complaint filed by Plaintiff-Debtor, James G. Sweeney, and the answer of Ameritrust Company, N.A. Count I alleges discriminatory treatment under Section 525(b) of the United States Bankruptcy Code for Ameritrust’s terminating Sweeney’s employment. 11 U.S.C. § 525(b). Defendant’s motion to dismiss Count ...
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ORDER OVERRULING OBJECTIONS TO CLAIMED EXEMPTION This matter came before the Court for hearing on February 8, 1990, at 9:30 a.m. on the objections to a claimed exemption. The Court heard the argument of counsel for Gui Govaert, the trustee, and counsel for the debtor and thereafter studied the memoranda of law submitted by the trustee, the debtor, and an objecting creditor as well as cond...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the court upon the complaint of Earl H. Galitz, P.A. (the “creditor”) against Esther A. Edghill (the “debtor”), to recover damages and to impose a charging lien on certain exempt and non-exempt property of the debtor, and upon the debtor’s counterclaim for attorney’s fees, pursuant to 11 U.S.C. § 523(d), and the Court having h...
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MEMORANDUM OPINION This matter comes before the court on the motion of Providence Television Limited Partnership, f/d/b/a WSTG-TV 64 (“Providence”) for summary judgment or, in the alternative, entry of an order specifying which material facts are in dispute on its objection to the priority claim of Blackburn & Co. of Illinois, Inc. (“Blackburn” or “Claimant”). For the reasons set forth he...
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RULING ON PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO FILE A NOTICE OF APPEAL In this matter, the plaintiff moves the court to extend for 20 days the time for filing a notice of appeal. Because the plaintiff filed its motion on March 6, 1990, more than 10 days after this court’s entry of judgment on February 14, 1990, see Bankr.R. 8002(a), 1 the movant must make a showing of “excusable negl...
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DECISION This matter is before the court on a motion for relief from stay filed on behalf of Don Jacobs Toyota, Inc. and Don Jacobs Buick-Subaru, Inc. (collectively “Don Jacobs”). The motion presents no factual issues — only legal ones. Accordingly, the matter was submitted based upon the contents of the parties’ various pre-trial submissions and the briefs of counsel. On May 25, 198...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of debtors, Jimmy and Karen Starr, to determine the status of a lease agreement entered into with Dicap Industries, Inc. (“Dicap”). Also before the Court is the debtors’ motion to dismiss a complaint filed by Dicap in which Dicap seeks to reclaim certain property covered by the lease agreement. Dicap asserts that, since the debt...
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MEMORANDUM OPINION The issue before the court is whether an agreement, designated “Equipment Lease” (“Lease”), between Hispanic American Television Co. [Companies], Inc. (“HAT-CO”), the Debtor, and Motorweek Productions (“MW”), a partnership between Ken Squier Productions, Inc. and the Lirol Corporation, setting forth the terms and conditions for the possession and use of certain televisi...
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MEMORANDUM OPINION This adversary proceeding is an action for reclamation of goods pursuant to Section 546(c) of the Bankruptcy Code and Section 2-702 of the Uniform Commercial Code. The trial was consolidated with the final hearing in a companion contested matter, pending in the main Chapter 11 bankruptcy case, that was initiated by the filing of a motion to lift the automatic stay provi...
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I. INTRODUCTION The debtors Raul and Liliana Tome (“debtors”) have brought this adversary proceeding to set aside a foreclosure sale of their residence, on the grounds that they were given inadequate notice of the sale, and of the transfer of the security interest to defendants five days prior thereto. Defendants Peter Baer, I.W. Abramson and Barbara Abramson (“defendants”) claim to be bo...
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OPINION Facts and Procedure Both parties have filed motions for summary judgment, there being no dispute as to the relevant facts in this Chapter 12 proceeding. The debtors are dairy farmers. ITT Financial Services (“ITT”) appears to have a valid lien on the debtors’ real estate, equipment, and cattle. The issue is whether ITT has a valid lien on products and proceeds of the cattle as opposed to...
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DECISION This matter is before the court on the debtor’s objection to the proof of claim filed by the Internal Revenue Service. The objection originally raised questions concerning both the amounts due the IRS and its lien for unpaid taxes. Pursuant to a stipulation filed by the parties, all issues, except those pertaining to the tax lien, have been resolved. Debtor, Mary Francis Beard, filed...
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MEMORANDUM OPINION This matter came before the Court for trial on the merits on the trustee’s complaint to sell property free and clear of liens and interests and to determine validity, priority and extent of liens and interests, and Valetta Ruth Fingado’s motion to accept purchase offer and motion by joint tenant Ruth Fingado for payment from sale of Vermont Street house. Having consider...
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OPINION This appeal arises from an order denying the United States’ Motion to Set Aside Sale conducted pursuant to 11 U.S.C. § 363(b)(1). We determine that the appeal is interlocutory and, accordingly, dismiss it. FACTS Moberg Trucking, Inc., (“Debtor”), filed a voluntary Chapter 7‘ petition on December 23, 1982. On March 30, 1988, and pursuant to § 363(b)(1)1, the trustee sought an Application f...
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MEMORANDUM AND ORDER ON OBJECTION TO DEBTOR’S AMENDED APPLICATION TO EMPLOY ATTORNEYS The matter before the court is the debtor’s amended application (the “Application”) to employ the law firm of DiPietro, Kantrovitz & Brownstein (“DKB”) nunc pro tunc, effective February 1, 1990, to which the Bank of Boston Connecticut (“BBC”) objects. For the reasons that follow, BBC’s objecti...
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DECISION ON ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 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) — allowance or disallowance of claims against the estate and (I) determinations as...
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OPINION A. INTRODUCTION Once again, this court is asked to resolve a conflict arising from what has developed as the successful Chapter 11 rehabilitation of the principal purveyor of taxicab services in the city of Philadelphia, METRO TRANSPORTATION CO., trading as YELLOW CAB CO. (“the Debtor”). In this proceeding, the Debtor avers that Controlled Risk Services, Inc. (“CRS”), originally appointed...
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MEMORANDUM OPINION This matter comes to be heard on the motion 1 of the Debtor and Thomas Moseley (“Moseley”), a corporate officer of the Debtor, for an order directing the United States of America by and through its Internal Revenue Service (the “IRS”) to apply payments made to it through the bankruptcy case to certain of the Debtor’s tax obligations. For the reasons set forth...
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MEMORANDUM OPINION AND ORDER The Federal Deposit Insurance Corporation (FDIC) 1 as manager of the FSLIC Resolution Fund, as receiver for Vernon Savings and Loan Association, FSA, filed a complaint to determine the nondischarge- *298 ability of debt in James Smith’s bankruptcy on April 12, 1988, and in Vernon Smith’s bankruptcy on June 2, 1988. The FDIC seeks to exc...
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OPINION The trustee appeals the bankruptcy court’s holding that the debtor was entitled to apply a $45,000 homestead exemption against his share of the proceeds from the sale of the family residence. 'We affirm. FACTS Malcolm W. McFall, the debtor, resided at 815 Berkeley Avenue, Menlo Park, California with his wife, and minor son. McFall filed a Chapter 11 petition in February,...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT 1 I Statement of Proceedings This adversary proceeding came on for the second-half of a bifurcated bench trial on February 8, 1990 solely on the issue as to the amount of damages to be affixed versus the Defendant-Debtor (hereinafter: “Debtor”). The first-half of the bench trial was held on April 6, 1989 on the i...
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MEMORANDUM OPINION This matter comes before the court upon the defendant’s motion to dismiss the plaintiff’s complaint and amended complaint. BACKGROUND Plaintiff, the debtor herein, filed his complaint in May, 1989 seeking a declaration that he has no liability to pay accrued post-petition interest and penalties on pre-petition income tax claims of the Internal Revenue Service....
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The Motion of the Trustee in the above-referenced bankruptcy, Steven A. Berkow-itz, for an Order of Contempt and Sanctions, and the Certification of Civil Contempt of the United States Bankruptcy Court, came before this Court, the Honorable John Rhoades presiding, for hearing and trial on September 11, 1989, and January 8 and 9, 1990. Nancy E. Perham of O’Gara and McGuire appeared as Special Coun...
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OPINION The debtor Brian Hammer appeals from the bankruptcy court’s denial of his request for relief from a default judgment entered against him in an adversary proceeding for nondischargeability of debt. We affirm. FACTS In 1982 Hammer hired appellees Drago and Summers to maintain his swimming pool at his personal residence. The three became personal friends and during November, 1985 appel...
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MEMORANDUM DECISION ACTION David H. Larson filed a motion to dismiss Kreisers, Inc.’s (Kreisers’), voluntary Chapter 11 bankruptcy petition as being filed in contravention of the Minnehaha County Circuit Court’s (state court’s) order appointing Leo Flynn as receiver of Kreisers. David Larson maintains the state court appointed receiver displaces Kreisers’ directors’ authority and tha...
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ORDER ON OBJECTION TO DEBTOR’S DISCLOSURE STATEMENT THIS MATTER came before the Court for hearing on April 11, 1990 on the Objection of AmeriFirst Bank to the Debtor’s Disclosure Statement and on April 18, 1990 on the continued Objection to the Amended Disclosure Statement. The Court has reviewed the Debtor’s proposed Disclosure Statement and Amended Disclosure Statement with its att...
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*83FINDING AS TO APPLICATION OF COLLATERAL On October 31, 1988, Debtor Mark J. Buzek, dba Buzek Construction Co., filed for relief under Chapter 13 of the Bankruptcy Code. On January 9, 1989, the Internal Revenue Service (IRS) filed a proof of claim for $86,514.38, representing federal taxes, interest and penalties. The facts are not in dispute. Debtor’s Plan was confirmed on January 24, 1989. On...
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DECISION ON AMENDED COMPLAINT FOR DECLARATORY JUDGMENT AS TO DIVISION OF PROCEEDS FROM SALE OF PARTNERSHIP PROPERTY The dispute between the parties in this case relates to a division of the proceeds received by the debtor partnership from the sale of a golf course in Rockland County, New York, to a corporation controlled by Japanese interests, known as Three Little Willows Corp. The facts in this...
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ORDER AUTHORIZING EMPLOYMENT OF PROFESSIONAL PERSONS BY THE EXAMINER The Bankruptcy Code does not expressly authorize the employment of professional persons by an examiner. Nevertheless, under the facts and circumstances of the Southmark Corporation bankruptcy case, employment of professional persons by the examiner is appropriate to carry out the examiner’s investigation authorized by th...
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MEMORANDUM DECISION SUPPLEMENTING FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter originally came before the court upon the trial of a nondischargeability complaint filed by Commercial Factors of Salt Lake City, Inc., (Commercial Factors) against Kent D. Jensen and Carol A. Jensen pursuant to 11 U.S.C. §§ 523(a)(2)(A) and 523(a)(4). 1 During the course of the trial, the cou...
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MEMORANDUM OPINION This case involves the extent, validity, and priority of the tax liens of claimants, City of Farmers Branch (“City”) and Car-rollton-Farmers Branch Independent School District (“ISD”) (collectively, “Defendants” or “Taxing Units”) against property of the estate of Martha Jo Pointer (“Plaintiff” or “Pointer”), which property Plaintiff obtained by her foreclosure from the...
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MEMORANDUM OPINION This matter comes before the Court upon remand from the U.S. District Court, which reversed this Court’s ruling on the debtor’s attorneys' application for legal fees and remanded the case for further consideration. 109 B.R. 696. This Court held a hearing on counsel’s original fee application upon remand and also counsel’s application for compensation and expenses incurr...
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*135 MEMORANDUM AND DECISION In this case, a Chapter 12 petition was filed after a Chapter 7 discharge was granted but before the Chapter 7 case was closed. Melvin J., Jr. and Joan F. Bodine, the Debtors herein, now request that their Chapter 12 Plan be confirmed. No objection has been made to the Plan being confirmed. The facts are as follows. The Bodines filed a Chapter 11...
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MEMORANDUM AND ORDER ON APPLICATION FOR § 506(b) FEES AND EXPENSES Federal National Mortgage Association (“FNMA”) has filed an application under Bankruptcy Code § 506(b) for the allowance of $5,523.56 for fees and expenses. The debtor objects. BACKGROUND On August 11, 1987, FNMA commenced an action against the debtor to foreclose its $65,450.00 mortgage on the debtor’s residence...
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OPINION Background An involuntary Chapter 7 petition was filed against the debtor, J.A.S. Markets, Inc., trading as Meadville County Market, on February 14, 1986. The plaintiff, William Pineo, Esq., was appointed trustee (“Trustee”). The Trustee initiated the present adversary proceeding against Charley Brothers Company, a Division of Super Valu Stores, Inc. (“Super Valu”), alleging: (1...
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DECISION AND ORDER Heard on the plaintiff, Donna M. Beau-chaine’s, Motion for Summary Judgment, *117 wherein she seeks to have certain debts declared nondischargeable pursuant to § 523(a)(4) 1 . The issue is whether the debtor’s obligation to pay his former wife one half of the value of his profit sharing and pension plan under a separation agreement, Exhibit G, is dischargeable under § 523...
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MEMORANDUM OPINION I. ISSUE 1. Whether the Debtor’s interest in a profit sharing plan in which the Debtor became a participant by virtue of his employment, that is funded exclusively by employer contributions and also provides that the Debtor may request withdrawals in certain limited circumstances, subject to approval by a plan Advisory Committee, constitutes an asset of the bankrup...
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OPINION Plaintiff filed an adversary proceeding alleging that a debt owed her by the debtor was nondischargeable under 11 U.S.C. § 523(a)(2), (4) and (6). 1 From a judgment determining the debt to be dischargeable, plaintiff brings this appeal, contending that the bankruptcy court erred in striking her demand for a jury trial and in granting a non-suit as to her claim under sec...
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ORDER ON MOTION FOR PAYMENT OF COSTS This matter is before the Court on applicants’ motion for payment of costs from the deposit established by this Court’s Order and an objection thereto filed by the debtors. A judgment was entered against the Grynbergs and in favor of a class which included the applicants by the Superior Court in and for the County of Alameda and State of California on or a...
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MEMORANDUM, FINDINGS OF FACT AND CONCLUSIONS OF LAW This is a case brought by the Trustee to prevent, under 11 U.S.C. 727(a), the discharge of the Debtor. The Trustee alleges that a series of conveyances by the Debtor were the product of the Debtor’s intent to hinder, delay, or defraud creditors. The Defendant counters by arguing that the transfer(s) were made for fair consideration, without in...
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MEMORANDUM OP DECISION This memorandum considers the propriety of permitting the Internal Revenue Service (the “IRS”) to amend its proof of claim after the expiration of the bar date to promote one of its claims from general unsecured to priority status. I sustained the Debtors’ objection to the IRS amendment at a hearing on January 23, 1990. At that hearing counsel for the IRS advised th...
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OPINION AND ORDER ON OBJECTION TO CLAIM OF EXEMPTION This matter is before the Court upon the objection of Larry Staats, the duly appointed trustee in bankruptcy (“Trustee”), to a claim of exemption asserted by the debtors, James and Helen Williams (“Debtors”). The opposed exemption relates to Mr. Williams’ interest in real property and a mobile home claimed by him as homestead exemptions. The Tru...
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Creditor Marion Pierson has filed an objection to Debtor Gerald B. Miller’s claim of a homestead exemption. The Chapter 7 Trustee supports the objection. The Debtors strenuously oppose it. The facts that give rise to this objection are not in dispute. In January, 1982, Pier-son commenced a negligence action against Gerald B. Miller in the Superior Court of the Commonwealth of Massachusetts...
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MEMORANDUM OF OPINION ON ROCHESTER’S MOTION FOR RELIEF FROM AUTOMATIC STAY FACTS On May 5, 1975, the Debtor, Hancel Ray Hawkins (Hawkins) and the Movant, Louis Rochester (Rochester) formed a general partnership, under the partnership laws of Texas, named RHR Development (RHR). The purpose of the partnership was to own and develop real estate. The partnership agreement was amended in ...
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MEMORANDUM OPINION On November 10, 1987, The Bank of Yell-ville, Arkansas (Bank) filed a complaint for foreclosure in the Chancery Court of Oua-chita County, Arkansas, (No. 87-377) against Shannon D. Scott and his wife, Patricia R. Scott d/b/a K/C Audio/Video Center of Camden. On November 18, 1987, Borg-Warner Acceptance Corporation of Arkansas 1 (Borg-Warner) intervened in the...
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OPINION AND ORDER ON MOTION FOR RELIEF FROM STAY This matter is before the Court upon the motion filed by Lincoln National Bank and Trust Company (“Lincoln”) for relief from the automatic stay. Lincoln’s motion for an order excusing the state court receiver’s compliance with the turnover provisions of 11 U.S.C. § 543, the debtor’s application for appointment of attorney and the debtor’s m...
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OPINION Facts Wheeling-Pittsburgh Steel Corporation (“Debtor”) terminated the employment of Ernest B. Swiger (“Swiger”) on February 25, 1981. Swiger subsequently filed a charge with the National Labor Relations Board (“NLRB”). The NLRB found that the Debtor had violated the National Labor Relations Act (“NLRA”) and ordered that the Debtor reinstate Swiger and make him whole for a...
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OPINION AND ORDER ON MOTION FOR RELIEF FROM STAY This matter is before the Court upon the motion filed by Lincoln National Bank and Trust Company (“Lincoln”) for relief from the automatic stay. Lincoln’s motion for an order excusing the state court receiver’s compliance with the turnover provisions of 11 U.S.C. § 543, the debtor’s application for appointment of attorney and the debtor’s m...
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MEMORANDUM OF OPINION ON PREFERENCE By urging that it is protected under § 550(b)(1) of the Bankruptcy Code, 1 the Federal Deposit Insurance Corporation (FDIC) as the Receiver of First State Bank of Abilene, Abilene, Texas (FSB) seeks to prevent the Trustee’s recovery of a preferential transfer. The court finds that the FDIC does not qualify as a transferee under that section a...
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ORDER CONCERNING RIGHT TO JURY TRIAL This is an adversary proceeding to avoid a preferential transfer of real property brought by the debtor's chapter 7 trustee, James Oliver Carter. The trustee seeks to recover the property or its value from the defendant, Ethel H. Hammond (the initial transferee), and from Mrs. Hammond’s transferee, Lawrence Dean Leath.1 The defendants had not filed proofs of c...
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MEMORANDUM OPINION This matter comes on to be heard upon the Motion for Turnover of Property filed *715 by Debra Kay Fisher (“Debtor”). The motion is brought pursuant to § 542(a) of the Bankruptcy Code and moves this Court to order the Oklahoma Central Credit Union (“Credit Union”) to deliver property of the estate ($3,830.00) to the Trustee of her Chapter 13 proceeding, Lonn...
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MEMORANDUM AND ORDER The matter before the court is a Motion for Authorization of Post-Petition Transfer, filed on December 26, 1989, by American State Bank and Trust of Dickinson, North Dakota. Through their motion, American State Bank and Trust seeks a turnover of all of the Debtors’ accounts receivable existing as of September 28, 1989, presently collected and being held by the Debtors or by A...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: ORDER TO SHOW CAUSE On March 8, 1990, an Order to Show Cause hearing was held to determine whether the Chapter 7 petition filed by Wilson D. Gaoiran and Myda M. Gaoiran (“Debtors”) should be dismissed for abusive filing. Present at the hearing were Gayle Lau, Esq., Assistant U.S. Trustee and Richard Kennedy, the Trustee. Neither Debtors nor their attorne...
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MEMORANDUM DECISION AND ORDER RE: APPLICATION BY ACCOUNTANT FOR APPROVAL OF FEES On February 15, 1990, Panned Kerr Forster (“Applicant”), the accountants for the estate, filed an Application by Accountant for Approval and Confirmation of Interim Compensation and Reimbursement of Expenses (“Application for Compensation”), seeking total fees of $14,239.25. A Request for Hearing on Application for C...
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MEMORANDUM AND ORDER The matter before the court is a Motion for Relief from Stay filed January 18,1990, *592 by Farm Credit Bank of St. Paul, a successor in interest to the Federal Land Bank of St. Paul. Farm Credit Bank seeks relief from stay against the Debtors’ farm real property consisting of approximately 1,920 acres upon which it holds a first mortgage. Farm Credit Ban...
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MEMORANDUM AND ORDER This matter is before the court on objections to the Debtor, Kyle Smith’s (Kyle), claim of a $90,000.00 annuity policy as exempt under the North Dakota exemption statutes. St. Luke’s Hospitals of Fargo, Inc., Fargo Clinic, Ltd., National Farmers Union Property and Casualty Company and the Chapter 7 trustee all object to the Debtor’s exemption of a single premium ...
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MEMORANDUM AND ORDER This matter is before the court upon the Debtor’s Motion to Avoid the Judicial Lien of Dan Kling pursuant to 11 U.S.C. § 522(f)(1). 1 The Debtor in his Chapter 7 schedule of exemptions has exempted as a homestead, certain real property situated in Dickinson, North Dakota. Kling, in his response to the motion, charges that his lien cannot be avoided because ...
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OPINION A. INTRODUCTION On appeal from our Adjudication and Order of August 17, 1989, reported at 104 B.R. 688, deciding this adversary proceeding, the district court affirmed all aspects of our decision except our determination that the pre-petition sheriff’s sale of December 5,1988, of the Debtor’s home which we found had yielded less than seventy (70%) percent of the home’s value ...
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MEMORANDUM AND ORDER The matter before the court is a Motion to Assume Unexpired Leases filed on November 30, 1989, by the Debtor, Gateway Investors, Ltd. The Debtor seeks to assume six ground leases upon which the Gateway Shopping Center in Bismarck, North Dakota is situated. The motion is objected to by Martha Kavaney, Richard Kavaney, Charles Kavaney, John Kavaney and James Kavaney, as...
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MEMORANDUM AND DECISION This matter is before the Court on the Debtor’s, Jose A. Fontanez, objection to Key Bank of Central New York’s (hereinafter Key Bank) claim in the amount of $93,991.15 ($91,861.97 plus $2,129.18 pre-petition interest). Jose Fontanez filed a petition for relief under Chapter 13 of Title 11 U.S.C. on December 12, 1988. The debt is based on overdrafts to Mr. Fontanez’s checki...
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REASONS FOR DECISION This matter comes before the Court on the application of Mr. Terry J. Johnson (“Applicant”), as Special Counsel for the Debtor in possession, for professional fees. This is a core proceeding inasmuch as compensation of professionals affects the administration of the debtor’s estate under 28 U.S.C. Section 157(b)(2)(A). This Court has jurisdiction by virtue of 28 U.S.C. Sect...
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DECISION The plaintiff (hereinafter “Dr. Romero”) initiated this adversary proceeding against the debtor, wherein he seeks to have his claim of $4,715 for services rendered the debtor’s mother, Mary Missirlian, to be nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and 11 U.S.C. § 523(a)(4). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). For the reasons hereinafter set forth ...
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MEMORANDUM AND ORDER This adversary proceeding was commenced by Complaint filed on July 31, 1989, and as later amended on January 19, 1990. It is alleged that defendant Metropolitan Federal Bank’s (Bank) security interest in a travel trailer was at the time of its repossession defective and inferior to the trustee’s status as a lien creditor under section 544. The trustee, Phillip D. Arms...
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OPINION PROCEDURAL BACKGROUND These adversary proceedings were instituted by William G. Lasich, the Chapter 7 Trustee and Plaintiff, hereinafter “Trustee”, against the Defendants. The Trustee seeks to recover a $20,000 payment and two transfers of real property made by George Axel Wickstrom, hereinafter “Debtor”, which are asserted to be avoidable preferential transfers or fraudulent...
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MEMORANDUM AND ORDER Before the court is a Motion by Farm Credit Bank of St. Paul (FCB) for dismissal or relief from stay. Both remedies are premised upon the argument that the Debt- or, Ralph Faber Trust, is a land trust and as a consequence does not qualify for relief under Chapter 12 of the Bankruptcy Code. Relief under Chapter 12 is available only to a family farmer with regular ...
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ORDER ON OBJECTIONS TO CONFIRMATION OF AMENDED CHAPTER 13 PLAN Debtors have filed an amended plan (the “Plan”) under Chapter 13 of the Bankruptcy Code 1 and have proposed its confirmation. The Chapter 13 Trustee (“Trustee”) and Federal National Mortgage Association (“FNMA”), a holder of a secured claim against property of debtors, have objected to the confirmation of the Plan. ...
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OPINION This matter comes before the court on motion of the defendant/debtor, Elyse E. Bernstein, to set aside the entry of default docketed on December 11, 1989. The facts are simple. On October 13, 1989 plaintiff filed a complaint objecting to the discharge of the debtor and seeking a determination of non-dischargeability as to the plaintiff’s claim based upon a judgment for fraud ...
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ORDER After due notice, trial was held November 9, 1989, on the Complaint of AVCO Financial Services (AVCO) for denial of discharge under Sections 523 and 727, and return of collateral. The Debtor/Defendant Answered the Complaint by generally denying all of the material allegations. The Answer was subsequently amended and a Counterclaim for racial and sexual harassment and discrimination ...
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MEMORANDUM AND ORDER By adversary Complaint filed February 27, 1989, Phillip D. Armstrong, Trustee in the Chapter 7 case, seeks recovery and restitution from the defendant, Highlands Operating Company, Inc. (Highlands), for damages and losses to the estate allegedly caused by Highlands misfeasance and breach of fiduciary duty while in control of certain of the Debtor’s property pre-conversion. The...
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ADJUDICATION A. FINDINGS OF FACT 1. The instant proceeding was filed on December 20,1989, by NASSAU SAVINGS AND LOAN ASSOCIATION (“the Plaintiff”), which asserts a claim of over $9 million against the Debtor, pursuant to 11 U.S.C. § 727(c)(1), objecting to the discharge of the Debtor, JOHN S. TRINSEY, JR. (“the Debtor”), on the basis of 11 U.S.C. § 727(a)(2)(B), (a)(3), (a)(4)(A), (a...
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FINDINGS OF FACT, CONCLUSIONS OF LAW RE: AMENDMENT TO SCHEDULES An evidentiary hearing was held on March 12, 1990, before the undersigned *670Judge to determine whether an amendment to the Debtor’s schedules should be allowed to include the claim of John W. Lines (“Lines”). Following the hearing, the Court took the matter under advisement. Based upon the evidence adduced, the memoranda submitted, ...
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FIRST AMENDED MEMORANDUM OPINION On July 6, 1989 this court entered an order granting a Motion For Summary Judgment filed by Benito Cardenas and Maria De Jesus Maldonado (collectively “Plaintiff”). The Debtor-Defendant, Albert J. Stowell, timely filed a Motion For New Trial and/or For Additional Findings of Facts. Plaintiff also filed a timely Motion For Additional Findings of Facts. On O...
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ORDER — PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On February 15, 1990, a hearing was held on Sternco, Inc.’s (“Sternco”) motion for summary judgment. The following attorneys appeared on behalf of their respective clients: William I. Kampf and Elizabeth A. Nelson for Sternco, and Morris J. Nunn and Gary R. Hassel for Associates Leasing, Inc. (“Associates”). At the conclusion of said hearing, the ...
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REVISED MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 157(b)(1). The dispute before the Court concerns a motion for summary judgment brought by defendant Federal Savings and Loan Insurance Corporation (“FSLIC”) as receiver for Mt. Whitney Savings and Loan Association (“Mt. Whitney”). Plaintiff Kingsw...
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MEMORANDUM OF DECISION GRANTING DECLARATORY RELIEF AND FINDING DEBTOR HAS NO INTEREST IN THE MASONIC LEASE JURISDICTION This court has jurisdiction under 28 U.S.C. § 1334. Further, since the question to be resolved involves Debtor’s rights in property, this matter is a core proceeding which may be resolved by the Bankruptcy Court. 28 U.S.C. Section 157(b)(1). BACKGROUND FACTS ...
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MEMORANDUM OPINION Debtors owned a Missouri business, Chadwick Enterprises, Inc., but resided in Kansas. They had resided in Kansas for over six months when they filed for both corporate and joint personal bankruptcy protection. Both bankruptcy petitions were filed in the Western District of Missouri. Debtors possessed more property than most who seek the relief afforded by this Court. Th...
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ORDER OVERRULING OBJECTION OF BENEFICIAL INDIANA, INC., AND GRANTING DEBTORS’ MOTION FOR AVOIDANCE OF LIEN This matter comes before the Court on the Motion for Avoidance of Lien (“the Motion”) filed by the Debtors on September 7,1989, and on the Objection of Beneficial Indiana, Inc. to Debtor’s [sic] Motion to Avoid Lien (“the Objection”) filed on October 11, 1989, by Beneficial Indiana, Inc. (“Be...
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MEMORANDUM DECISION AND ORDER This matter comes before the court on the defendant, Shirley M. Shaw’s (Debtor), motion for an award of attorney fees pursuant to 11 U.S.C. § 523(d). 1 The plaintiff, America First Credit Union (Credit Union), brought this nondischargeability action pursuant to section 523(a)(2)(B) and then stipulated to dismissal of the claims for relief with prej...
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JUDGMENT AVOIDING JUDICIAL LIEN THIS CAUSE came on to be heard before the Court on November 28, 1989, upon the Motion of the Debtors, THOMAS CHARLES RETTEMNIER, hereinafter referred to as T.C.R. and BARBARA JEAN RETTEMNIER, hereinafter referred to as B.J.R., brought pursuant to 11 U.S.C. Sec. 522(f)(1) and B.R. 9014, to avoid a judicial lien which impaired allowed ex...
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MEMORANDUM OPINION DENYING DEBTOR’S MOTION TO ADJUST SECURED CLAIM This cause came before the Court on November 29, 1989, for the hearing on the Amended Motion to Adjust Foremost Investments N.V.’s Secured Claim filed by the Debtor/Debtor-in-Possession, Flagler-At-First Associates, Ltd., a Florida limited partnership (“Flagler”). This Memorandum Opinion is intended to constitute the Court’s fin...
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ORDER ON MOTION TO DETERMINE DEFENDANTS’ ENTITLEMENT TO JURY TRIAL THIS MATTER having come before this Court on February 26, 1990 at 10:30 o’clock A.M. on the Plaintiffs Motion to Determine Defendants’ Entitlement to Jury Trial, and the Court having reviewed the pleadings and the applicable authority, including the Supreme Court's recent decision in Granfi-nanciera v. Nordberg, — U.S. -, 109 ...
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MEMORANDÜM OPINION On November 15, 1988, the debtors, Christopher Bachmann and Charlene Rae Bachmann, filed a joint bankruptcy petition under Chapter 13 of the United States Bankruptcy Code. During the administration of this case, it was alleged that a typing service in South Florida was abusing the Bankruptcy system. At the confirmation hearing on December 20, 1988, the Chapter 13 trustee ad...
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MEMORANDUM OPINION This cause came before the Court on April 9, 1990 on Morris L. Willets (“Wil-lets”) Motion for Relief from Automatic Stay and Request for Adequate Protection. After examining the evidence, hearing argument of counsel and being otherwise advised in the premises the Court finds in favor of the Movant and enters the following Findings of Fact and Conclusions of Law. FINDINGS O...
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MEMORANDUM DECISION DENYING MODIFICATION OF PLAN This cause came on before the court on February 6, 1990, on the debtors’ Motion to Modify Chapter 13 Plan to Provide for Exercise of Option to Purchase with GMAC Over Remaining Term of Plan. An objection was filed by General Motors Acceptance Corporation (GMAC). The cause was heard, and the court is fully advised in the premises....
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ORDER ON TRUSTEE’S MOTION TO COMPEL TURNOVER OF PROPERTY OF THE ESTATE THIS MATTER came before the Court on January 8, 1990, upon the Trustee’s Motion for an Order Directing the Debtor to Turn Over Property of the Estate. The facts in this matter are not disputed and are as follows: 1. On the date of the filing of the petition for bankruptcy relief, July 13, 1989, the debtors had an interest in a ...
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ORDER ON JOINT OBJECTION TO THE CLAIMS OF THE INTERNAL REVENUE SERVICE This cause came before the Court on February 21, 1990, at 1:30 p.m., on the Joint Objection to the Claims of the Internal Revenue Service (“IRS”) (the “Objection”) filed by the Debtor, T.M. Products Co. (“TM”) and its president Thomas Metz-ger (“Metzger”). This Order is intended to constitute the Court’s findings of fact and c...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the court on November 8, 1989 upon the complaint of JOSE CARBIA to determine dischargability of debts pursuant to Chapter 7 of the Bankruptcy Code, and the court having examined the evidence presented, and being otherwise fully advised in the premises, makes the following Finding of Fact and Conclusions of Law. 1. The ...
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MEMORANDUM OPINION This matter comes to be heard on the final application of Burke, Wilson & Mcll-vaine (the “Applicant”) pursuant to 11 U.S.C. § 330 and Federal Rule of Bankruptcy Procedure 2016 for the allowance of $35,118.00 in compensation and reimbursement of expenses in the amount of $2,314.42 for the period July 3, 1989 through September 21, 1989. Proper notice was given to all cre...
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ORDER The hearing to consider the application of the Trustee/Plaintiff to approve a compromise of certain issues and matters in connection with this Adversary Proceeding was called on March 26, 1990. The Debtor appeared by Counsel Roy Babitt and John Gross and presented oral arguments in opposition to the Trustee’s requests. The following parties appeared and presented arguments in support of the...
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MEMORANDUM OPINION DETERMINING DEBT TO BE NONDISCHARGEABLE The instant complaint to determine dis-chargeability of debt was brought by eight plaintiffs who lost money invested in several unsuccessful business enterprises which they claim the debtor promoted by fraud and misrepresentation. For the reasons stated, only the relief requested in Count 1 of the complaint will be granted; Counts...
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ORDER GRANTING TRUSTEE’S MOTION FOR DISALLOWANCE OF DEBTOR’S CLAIM OF EXEMPTION On June 29, 1989 and August 3, 1989, there came on for hearing the Trustee’s motion for disallowance of Debtor’s claim of exemption of an individual retirement account; after hearing, the matter was taken under advisement. Upon consideration of stipulations and briefs filed by the parties, and of the record he...
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MEMORANDUM ORDER This proceeding came on for hearing on cross-motions for summary judgment. Larry B. Ricke appeared for the plaintiff. Robert C. Maki appeared for defendant City of Duluth. Matthew L. Fling appeared for defendants Fitger’s Inn Limited Partnership (FILP) and Fitger’s Inn Management Company (FIMC). This court has jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334, and Local Rule 103...
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MEMORANDUM OF DECISION On December 13, 1989, the day before trial in the present adversary proceeding, *624 the parties reached a stipulated judgment in which the Plaintiffs’ prior state court judgment against the Debtors was deemed nondischargeable in the amount of $37,500. As part of the settlement the parties requested that the court determine the amount of attorneys’ fees...
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MEMORANDUM DECISION The Court has before it: (1) Attorney Rodney C. Lefholz’s application for compensation and reimbursement of expenses and the objections thereto, (2) Attorney Lefholz’s motion to reconsider the Court’s order of November 22, 1989, assessing terms against Attorney Lefholz, (3) creditor Eunice I. Gull’s motion for terms against Attorney Lefholz and the debtor, L.D. Alderso...
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MEMORANDUM OPINION This matter comes to be heard on the first and final application of Katten, Mu-chin & Zavis (“KMZ”) as attorneys for the Debtors-in-possession pursuant to 11 U.S.C. § 330 and Federal Rule of Bankruptcy Procedure 2016 for an allowance of $69,108.50 in compensation and reimbursement of ex *967 penses in the amount of $9,868.92 for the period February 3, 1989 ...
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MEMORANDUM DECISION ACTION In a case of first impression in this district, the Court must decide whether a Chapter 11 case may be reopened notwith *603 standing the demise of said debtor. For the reasons outlined below, the Court grants the motion to reopen the case under 11 U.S.C. § 350(b). The instant matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B...
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*944 MEMORANDUM OPINION A contested hearing was held on April 5, 1990, concerning confirmation of the Debtors’ Second Amended Plan of Reorganization (the “Plan”), and the Court, having considered the Plan, the Objection thereto filed by secured creditors Clayton D. Lester and J. Pauline Lester (the “Lesters”), the testimony and documentary evidence placed into the record at the h...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Motion and Request for Approval and Payment of Administrative Expense (“Motion”) filed by Monique R. Strous (“Claimant” or “Strous”), the Chapter 7 Trustee’s Objection to Motion, Strous’ Memorandum Brief with Attached Authority, and the Chapter 7 Trustee’s Response to Strous’ Memorandum Brief. The Court, having reviewe...
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MEMORANDUM I. INTRODUCTION Village Green Realty Trust (“Village Green,” the “Trust” or the “Debtor”) filed a petition under Chapter 11 on January 8, 1990. The petition states that “[pjetitioner is qualified to file this petition and is entitled to the benefits of Title 11, United States Code.” On January 24, 1990, Lowell Institution for Savings (“LIFS” or the “Bank”) filed a motion f...
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MEMORANDUM OF DECISION ON DEBTOR’S OBJECTION TO AMENDED CLAIM OF THE INTERNAL REVENUE SERVICE This memorandum considers whether the amended claim of the Internal Revenue Service (the “IRS”) should be allowed in this chapter 11 proceeding over the Debt- or’s objection. The IRS originally filed a proof of claim for $3,146.26 in July 1987. Two years later it filed an amended proof of claim f...
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ORDER ALLOWING EXEMPTION Came on for hearing on March 15, 1990, at 2:00 p.m., the Objection of Federal Deposit Insurance Corporation to Debtors’ Claim of Exemptions (“Objection”), and appeared the Debtors in person and by and through their counsel of record, and appeared the Federal Deposit Insurance Corporation (“FDIC”) by its designated representative and its counsel of record, and purs...
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MEMORANDUM OPINION Before the Court is a Complaint filed at Adversary No. 84-216 by The Committee of Unsecured Creditors of Specialty Plastics, Inc. (“Committee”) to recover damages for usurped corporate business opportunities belonging to Specialty Plastics, Inc. (“Specialty”), to set aside fraudulent transfers, and to avoid preferential transfers. The Committee has brought an actio...
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MEMORANDUM AND ORDER ON AMENDED MOTION FOR SUMMARY JUDGMENT The plaintiffs assert a lien, pursuant to Indiana law, on a portion of the debtor’s personal property. The defendant Textron, Inc. moves for summary judgment, claiming that the plaintiffs lack standing under *125 the Indiana law; that any security interest in the debtor’s property is voidable under Bankruptcy Code § ...
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OPINION BACKGROUND The debtors/appellants (husband and wife) were long-time farmers in Montana. In the years before their bankruptcy, their farming income decreased, and they were forced to supplement their income by engaging in non-farming occupations. They initially filed a bankruptcy case under chapter 11, but the bankruptcy court eventually converted the case to chapter 7 for failure to effec...
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OPINION Before the court is the creditors’ committee’s objection to the second amended claim filed by the United States Department of Interior (“United States”) requesting payment of interest, penalties and “administrative costs” as administrative expenses under 11 U.S.C. § 503(b)(1). For the reasons outlined below, we find that the United States is entitled to interest as an administrati...
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MEMORANDUM OPINION This Chapter 11 adversary proceeding involves a Motion for Protective Order filed by defendant Israel Aircraft Industries, Ltd., (IAI), in response to plaintiff Bedford Computer Corporation’s (Bedford) Motion To Compel Discovery relating to its underlying turnover action. The undersigned bankruptcy judge has jurisdiction under 28 U.S.C. § 157, 28 U.S.C. § 1334, and the ...
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MEMORANDUM OPINION The matter before the Court is the Trustee’s objection to the amendment of exemptions by the Debtors. Because of the failure of their jewelry and gift business, Robert S. Grubbs, Sr., and Judith S. Grubbs (hereinafter, Debtors) filed a Voluntary Chapter 7 Bankruptcy Petition with this Court on December 2, 1988. On November 7, 1989 Debtors filed an amended Schedule ...
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MEMORANDUM ORDER OVERRULING OBJECTION TO CONFIRMATION Debtor’s Chapter 13 plan came on for confirmation hearing before the undersigned on the 5th day of April, 1990. The trustee objected to confirmation, alleging that the Debtor’s plan has not been proposed in good faith and that the separate classification of unsecured creditors provided for in the plan does not comply with 11 U.S.C. § 1322(b)...
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MEMORANDUM OPINION Debtor has filed for relief under 11 U.S.C. § 1301, et seq., and the Chapter 13 Trustee has raised the ghost of 11 U.S.C. § 1325(a)(4). Most simply it is the Trustee’s position that debtor’s pension fund should be part of debtor’s estate. If so, creditors would receive more under a Chapter 7 liquidation than under debtor’s proposed Chapter 13 composition. 11 U.S.C. § 1325(a)(4)...
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MEMORANDUM OPINION This matter is before the Court on motion by Weichert Realtors (hereinafter “Weichert”), a real estate brokerage firm, for an order authorizing L.D. Patella Construction Corp., the debtor in possession in this chapter 11 case (hereinafter “debtor”), to retain Weichert nunc pro tunc, and for payment of a commission on the sale of certain real property owned by the debtor...
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MEMORANDUM DECISION The debtor in possession has filed an objection to the final fee application of Mann, Judd & Landau (“the accountants”) who were retained as accountants by the former Chapter 7 trustee of the debtor after the debtor had been converted from a trustee in possession case under Chapter 11 of the Bankruptcy Code to a liquidation case under Chapter 7 of the Bankruptcy Code, and befo...
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MEMORANDUM OF DECISION The foregoing complaint brought by Plaintiff Burlington Industries, Inc. (hereinafter “Burlington”) pursuant to sections 523(a)(2)(A) and (a)(4) of Title 11, U.S.C. was heard on January 31, 1990 and submitted following the presentation of closing briefs. Having considered all admissible testimony and evidence of record, the court now renders the following findings o...
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MEMORANDUM DECISION On October 13, 1989 the debtor, Henry Norman Leek, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. His personal property schedule included a personal injury cause of action arising from an April 29, 1988 automobile accident. Leek’s exemption schedule stated that the cause of action was exempt “per Brandstaetter, 36 B.R. 369 (E.D...
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MEMORANDUM OPINION The Chapter 7 Trustee, John P. Stodd, (“Trustee”) and Minier & Winters (“Mini-er”), prior counsel to debtor when debtor was in Chapter 11, object to the attorneys fees sought by T. Edward Malpass (“Mal-pass”) for services rendered in defending the administrative claims of Joseph and Ida Marie Lattuga (the “Lattugas”) awarded under § 503(b)(3)(D) and § 503(b)(4) of the B...
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MEMORANDUM OPINION Mastercraft Metals, Inc. (Mastercraft), filed for bankruptcy protection under Chapter 11 on May 25, 1989. The case was converted to a Chapter 7 on August 4, 1989. Around August 22, 1989 Modern Builders Industrial Concrete Company (Modern Builders) delivered to the Trustee a check made jointly payable to Master-craft and Arrowhead Grating and Metal-works, Inc. The check ...
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OPINION The Official Unsecured Creditors’ Committee (the “Committee”) moves for disal-lowance of the prepayment charge asserted by Shawmut First Bank and Trust Company (the “Bank”) under its loan documents with the individual Debtor, Andrew J. Lane. Presented are questions of whether a prepayment charge is subject to the principles governing provisions for liquidated damages, and, if so, ...
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MEMORANDUM OPINION This matter came before the Court on March 7, 1990, for presentment of a judgment submitted by the debtors. The two issues before the Court are the priority of claims to Liquor License Number 1429 and the effect of the Thirty Day Credit Law, N.M.S.A, § 60-7A-9 (Repl.Pamp.1987), on the liquor wholesalers’ liens. Having considered the arguments of counsel, legal memoranda submitt...
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MEMORANDUM AND ORDER The Chapter 12 cases under consideration present a common issue of whether the debtors are entitled to a discharge at the end of their respective Chapter 12 plan periods over the trustee’s objection that the debtors have failed to pay all of their disposable income for the benefit of unsecured creditors as required by their plans. In both instances debtors have retain...
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DECISION This matter is before the court on the motion of Monarch Tool and Manufacturing Company (hereafter Debtor) to reject an executory contract, the parties to which were itself and Monarch Product Sales Corporation (hereafter Distributor). Debtor thus invoked 11 U.S.C. Section 365. The court has jurisdiction of this matter under 28 U.S.C. Section 1334 and the General Order of Referen...
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MEMORANDUM Century Seafoods, Inc. (“Century”) filed a Motion to Allow Late Piling of Claim (“Motion”) in the instant Chapter 7 bankruptcy case on March 7, 1990. The Trustee filed an Answer to the Motion on March 28, 1990. A hearing on the Motion was held on May 8, 1990, and neither party expressed a desire to submit Briefs. This case, one of the oldest on our docket, was commenced on...
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RULING ON MOTION BY CREDITORS’ COMMITTEE FOR THE APPOINTMENT OF A CHAPTER 11 TRUSTEE BACKGROUND On March 9, 1989 (the “Filing Date”) Eastern Air Lines, Inc. and its affiliate Ionosphere Clubs, Inc. (the “Debtors” or “Eastern”) each filed a voluntary petition for relief under chapter 11, title 11, United States Code (the “Code”). By order dated March 9, 1989, the cases were consolidat...
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OPINION Seaport Automotive Warehouse, Inc. (“Seaport”) appeals the order confirming *612 Debtor’s plan of reorganization on the grounds that the plan impermissibly enjoins creditors from proceeding against the Debtor or co-debtors of the Debtor pending completion of the plan. We reverse and remand. FACTUAL AND PROCEDURAL BACKGROUND The Debtor/appellee, Rohnert Park Auto Parts, Inc. (“Rohn...
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OPINION A. INTRODUCTION/PROCEDURAL HISTORY The instant adversary proceeding was initiated by a Complaint filed by the Plain *895 tiff, VALLEY FORGE PLAZA ASSOCIATES (A Pennsylvania Limited Partnership) (“the Debtor”), against THE ROSEN AGENCY, INC. (“the Agency”) and the Agency’s President, WENDY ROSEN (“Rosen”) the Agency and Rosen are collectively referred to as “the D...
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*112 MEMORANDUM OF DECISION This matter raises the question whether a second tier owner is a party in interest within 11 U.S.C. § 1121(c) which is eligible to sponsor a debtor’s plan of reorganization. Facts Debtor is a general partnership with two partners — Leo Zickler and River Bend Partners, a limited partnership. Leo Zickler holds a .5% interest in Debtor, and ...
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DECISION Banque Worms and fifteen other banks 1 (the “Banks”) seek pursuant to 11 U.S.C. § 362(d) and § 105(a) (1986), an order modifying the automatic stay provided in 11 U.S.C. § 362(a)(3) to permit Bankers Trust Company (“Bankers Trust”), as Collateral Agent, to retain in trust collateral proceeds owed to the Debtor, The Drexel Burnham Lambert Group, Inc. (“Drexel”), to pres...
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OPINION FACTUAL AND PROCEDURAL BACKGROUND On November 5, 1987, the debtor borrowed $2,390.75 from the appellant Aetna Finance Company, dba ITT Financial Services (“ITT”). Twenty-nine days later the debtor filed the petition in this bankruptcy case. ITT filed a timely complaint objecting to discharge under 11 U.S.C. § 523(a)(2)(C), 1 implicitly alleging that the *608...
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OPINION AND ORDER ON APPLICATION FOR APPOINTMENT OF ATTORNEY AND MOTION FOR ORDER AUTHORIZING USE OF CASH COLLATERAL This matter is before the Court upon an Application for Appointment of Attorney for Debtor-In-Possession (“Application”) and a Motion for Order Authorizing the Debtor’s Use of Cash Collateral (“Motion”). The Application and Motion were filed on behalf of the debtor-in-posse...
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ORDER ON CONFIRMATION Debtor filed his Chapter 13 petition on July 17, 1989. In his Statement he listed no secured obligations to be paid through the plan, and $46,952 in unsecured debt. Of that amount, $34,200 represented judgments arising from injuries and property damage from a vehicle accident while debt- or was under the influence of alcohol. Debtor proposed to pay the trustee $150 p...
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MEMORANDUM OF DECISION On November 6, 1989, an order was entered in this Chapter 13 case approving the standing trustee’s final accounting and discharging the trustee. The debtors now move for injunctive relief against Union Federal Savings and Loan Association, which motion raises issues relating to the effect of a Chapter 13 discharge on a secured creditor holding a security interest in a deb...
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MEMORANDUM OPINION Before the Court is Debtor/Plaintiff’s (“L & M”) Complaint to recover alleged accounts receivable. L & M claims that it fabricated and delivered to Defendants Pabcor, Inc. and Grant Industrial Supply, *101various steel products which they had ordered. According to L & M, Defendants accepted the products and have refused its demands to pay the amounts due and owing for those pro...
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MEMORANDUM OPINION This is an adversary proceeding to avoid and recover numerous preferences.1 This opinion disposes of the cross-motions for summary judgement filed by the Debt- or/Plaintiff, Global Distribution Network, Inc., and the Defendant, Infasco Division of Ivaco, Inc. This Court disposed of similar motions for summary judgement by Global against several other defendants in this adversar...
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ORDER DISMISSING CASE Pending is the motion of creditor Landmark Bank of Southwest Missouri to dismiss this case for the reason a trust is not eligible to be a debtor under 11 U.S.C. 109. The issue is whether the debtor is a business trust and, therefore, eligible to be a debtor, or a personal estate-planning trust and not eligible. The following findings of fact are derived from an ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONFIRMATION OF JOINT PLAN OF REORGANIZATION FOR ODD LOT The hearing on confirmation of the Joint Plan of Reorganization for Odd Lot dated January 19, 1990 and April 19,1990 Modification (the “Plan”) was held on April 19 and April 24, 1990 before this Court. Due Notice of said hearing and time to file objections was provided by the Debtors (Docke...
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MEMORANDUM AND ORDER ON MOTION TO DISQUALIFY COUNSEL The plaintiff moves to disqualify the defendants’ law firm, Berchem & Moses (“BM”). For the reasons that follow, the motion is denied. BACKGROUND The plaintiff is a partnership which was formed to purchase three apartment buildings located in Norwalk, Connecticut; to perform construction work necessary to convert the apartments into condominium...
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ORDER DISMISSING PETITION THIS CAUSE came on before the Court on April 11, 1990 on Howard L. Kass’ Motion to Abstain, Motion to Dismiss and Motion for Judgment Under 11 U.S.C. Section 303(i), which was filed in response to the involuntary petition which commenced these proceedings. The Court having reviewed the file, including the parties’ pretrial stipulation and exhibits, heard the arguments ...
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MEMORANDUM The issue presented in this case is whether postpetition contracts entered into between the debtor and its management team that provided one year severance pay benefits to management team employees were transactions or the incurring of debt in the ordinary course of debtor’s business which did not require notice and hearing or court authorization. I. On February 20, 1...
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MEMORANDUM This case is before the court upon the trustee’s complaint to recover moneys from defendants Joel C. Riley and Power Management, Inc. under several theories predicated upon bankruptcy and state law. Having considered the evidence introduced at the trial, and having further considered the briefs filed by counsel, the court now submits its findings of fact and conclusions of law ...
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MEMORANDUM OPINION AND ORDER The issue in this adversary proceeding is one of ownership with respect to funds which were held in the name of the debtor and her father in a joint survivorship account. The debtor died during the bankruptcy proceedings. For the reasons that follow, the Court finds that ownership of these accounts vested in the father at the time of the debtor’s death. T...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER came before the Court on March 17, 1990, on cross-motions for summary judgment filed by the Plaintiff, NCNB National Bank of Florida (“NCNB”) and Defendants, Joseph F. Fogarty, Jr. and Virginia H. Fogarty (the “debtors”). At the conclusion of the hearing, both NCNB and the debtors agreed that there is no genuine issue of material fact and that...
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MEMORANDUM OPINION Debtors, Kenneth Lawrence Gentile and Susan Lynn Gentile, were doing business as Gem Electric Service Company. As such they bid and completed industrial lighting projects as contractors or subcontractors. One of their more important sources for the lighting fixtures and material which they used on their jobs was Crescent Electric Supply Company. Twe-hous Construction Company aw...
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ORDER DENYING TRUSTEE’S MOTION TO DISALLOW CLAIM OF EXEMPTION Upon consideration of the record herein, the Court, pursuant to Bankruptcy Rules 7052 and 9014, finds, concludes and orders as follows. *741 FINDINGS OF FACT On April 16, 1987, Oklahoma Governor Henry Bellmon signed into law House Bill 1331 amending 31 O.S. § 1 to add a new subsection (A) ... (20), providing for exemption of ta...
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ORDER AUTHORIZING FILING OF AMENDED PROOF OF CLAIM BY CARTERET SAVINGS BANK This matter came before the Court on April 18, 1990 on Carteret Savings Bank’s (“Carteret”) Motion to Value Claim and the Debtor’s objections thereto. Carteret and the Debtor stipulated that the Court should first determine whether Carteret had filed an informal proof of claim capable of amendment. If so, valuation of t...
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MEMORANDUM OPINION Before the Court is a Complaint by Plaintiff James A. Prostko, Esq. (“Trustee”) for damages as a result of a violation by Defendants Morris M. Rand and MRGB, Inc. of an Order of Court confirming the sale of Debtor’s business and assets to MRGB. 1 The Trustee avers that Debtor was ready and willing to consummate the sale and that Rand and MRGB have, without ...
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DECISION ON MOTION TO STRIKE PROOF OF CLAIM The Chapter 13 debtor, Lloyd M. Kahn, has objected to the amended proof of claim filed by his wife, Carol Wolf Kahn, in the sum of $53,831.00. The debtor’s wife claims amounts due for checks which the debtor issued on a checking account 1 for some of his obligations, including legal fees, credit card expenses, liability on a car lease, funds paid to...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause is before the Court upon motion of Bay State Milling Company (“Bay State”), a creditor of William Martin, Sr. (“Debtor”), for an order dismissing Debt- or’s case under Chapter 11 of the Bankruptcy Code, or alternatively converting it to a case under Chapter 7. The Court having considered the motion, and the record of these proceedings, he...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of a motion made by Scott A. Walker (“Debtor”), to modify his confirmed Chapter 13 Plan pursuant to § 1329 of the Bankruptcy Code (11 U.S.C. §§ 101-1330) (West 1979 and Supp. 1989) (“Code”). The Chapter 13 Trustee has filed a written Objection to the Debtor’s motion. Oral a...
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DECISION AND ORDER Heard on April 9 and 16, 1990, on Rhode Island Hospital Trust National Bank’s Motion for Relief from Stay. This motion, which has been pending since November 7, 1989,1 involves two parcels of property owned by the debtor, one in Middletown, Rhode Island, formerly used and presently very suitable for use as a nightclub, and the second, located on Bellevue Avenue in Newport, consi...
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DECISION AND ORDER Heard on April 24, 1990, on the debtors’ Motion to Adjudge Citizens Savings Bank in Contempt. In their motion, the debtors allege that after they filed this Chapter 7 petition on February 9, 1989, the Bank repossessed their motor vehicle, sometime during the night of February 15 or in the early morning hours of February 16, 1989. Debtors further allege that thereafter the Bank s...
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MEMORANDUM OPINION Cordele Banking Company, Movant, filed a motion for relief from the automatic stay of the Bankruptcy Code on February 6, 1990. Movant seeks to recover real estate of James G. Hunt Trucking Co., Inc., Debt- or. 1 Movant contends that it holds a first lien on the property. A hearing was held on April 3, 1990. Debtor objects to the motion, contending that Movant’s lien is not ...
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OPINION The plaintiff filed an adversary proceeding to except from discharge under section 523(a)(4) a debt incurred through the debt- or/defendant’s purported breach of trust as a construction contractor with regard to funds allegedly held in a statutory trust for payment to subcontractors. The plaintiff appeals from a summary judgment granted in favor of the defendant. We reverse and re...
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DECISION ON MOTION FOR RELIEF FROM AUTOMATIC STAY The Federal Home Loan Mortgage Corporation (“FHLMC”) has moved for relief from the automatic stay imposed by 11 U.S.C. § 362 to permit FHLMC to continue litigation against Pioneer Commercial Funding Corporation (“Pioneer”), the debtor, in a multi-defendant action pending in the United States District Court for the Southern District of Cali...
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114 B.R. 214 (1990) In re Emilio J. LAGUNA, Jr., and Cynthia Laguna, Debtors. SHEARSON LEHMAN MORTGAGE CORPORATION, Appellant, v. Emilio J. LAGUNA, Jr., and Cynthia Laguna; Lawrence J. Loheit, Trustee, Appellees. BAP No. EC-88-2107-PRAs, Bankruptcy No. 288-05581-A-13. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 20, 1989. Decided May 18, 1990. *215 Thom...
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DECISION The instant motion by the debtors Ames Department Stores, Inc. (“Ames”), Eastern Retailers et al. and their fifty-one affiliated debtors (collectively “Debtors”) for an order approving a $250 million post-petition financing agreement brings to the fore an examination of the considerations and circumstances under which such approval may be granted pursuant to 11 U.S.C. § 364(c) of...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on May 11, 1990, on the Objection to Confirmation of the Debtor’s Chapter 13 Plan filed by Milton B. and Helen E. O’Rourke. Their Objection is based upon their allegation that they are secured creditors and the Debtor treats them as unsecured in her Plan. The evidence showed that in July, 1988, the O’Rourke’s sold a town house to the De...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of an Objection filed by the Chapter 7 Trustee to the exemption of certain pension plan benefits, pursuant to Article 10-A of New York Debtor and Creditor Law (McKinney’s Supp.1990) (“NYD & CL”) claimed by Linda S. and William C. Kleist, III (“Debtors”) in their bankruptcy ...
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ORDER This adversary proceeding involving a claim objecting to the dischargeability of a particular debt is before the court on cross motions for summary judgment. This is a core proceeding within the meaning of 28 U.S.C. § 157(b)(2)(I). The defendant is entitled to a summary judgment on the plaintiff’s § 523(a)(4) claim, and the viability of the § 523(a)(6) claim will depend on whether t...
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DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT OR DISMISSAL OF THE COMPLAINT This is an adversary proceeding brought by Jack Friedman, a former partner of the debtor, Maple Leaf Nursing Home, against the defendants, collectively referred to as the “Funds”, who are multi-employer employment benefit plans within the meaning of Section 3 of ERISA, 29 U.S.C. § 1002. Both sides seek summary j...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER. ON OBJECTION TO CLAIM OF COMMONWEALTH OF KENTUCKY, REVENUE CABINET Debtor, by counsel, filed on December 15,1989 its Objection To The Amended And Substituted Preferred Claim For Taxes Due The Commonwealth Of Kentucky which was filed by the Kentucky Revenue Cabinet in the within cause, and on January 3, 1990, the Kentucky Revenue Cabinet file...
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OPINION OVERVIEW The appellants appeal from an order denying their priority claim under § 507(a)(3) for unpaid wages that they assert were *620 earned within 90 days before the debtors ceased doing business. We AFFIRM. FACTS The facts are not in dispute. As of April 1, 1983, the debtors operated two distinct businesses: a mining operation and a restaurant. The ...
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MEMORANDUM ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION IN ERISA-QUALIFIED PENSION BENEFIT PLAN The debtor, Patrick F. Messing, claims an exemption in the amount of $6,365.45 in an ERISA 1 -qualified pension benefit plan established by his employer. 2 The exemption is claimed under Tennessee law pursuant to Tenn.Code Ann. § 26-2-104(b) (Supp. 1989). Alternat...
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MEMORANDUM AND DECISION ON MOTIONS FOR SUMMARY JUDGMENT On April 26, 1989, the plaintiffs commenced these adversary proceedings which seek declaratory judgments that the defendants have no interest in unsold books and accounts receivable from books that were sold. On March 12 and 14, 1990, the plaintiffs filed the instant motions for summary judgment, claiming that the material facts necessary fo...
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MEMORANDUM OF DECISION The matter before the court is whether the debtor’s Chapter 13 plan must be confirmed. The court has already fixed the value of the debtor’s real property, and determined that he is entitled to a $45,-000.00 homestead exemption. The plan provides that all of the debtor’s disposable income for the next three years will be applied to his debts, resulting in a dividend...
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MEMORANDUM OPINION For the background on this unusual bankruptcy case, see the earlier opinion issued April 24, 1990, for additional factual material. 113 B.R. 540. The single important fact for this opinion is that debtors were partners entitled to claim Kansas exemptions and have done so. The present issue is a determination out of which set of assets Mercantile Bank should satisfy its claim. T...
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DECISION DENYING APPLICATION TO RETAIN REBECCA J. HABBERT, ATTORNEY AT LAW The debtor, Jaimalito’s Cantina Associates Limited Partnership, applies to employ and appoint Rebecca J. Habbert for purpose of general representation of the debtor. Ms. Habbert is a pre-petition creditor of the debtor, holding a claim of unspecified amount for representing the debt- or on matters unrelated to assisting ...
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ORDER James Eathen Leiter (hereinafter “Debt- or”), having on November 3, 1989 filed a “Motion to Set Aside Discharge and to Convert Case to Chapter 13” hereby finds as follows: 1. Debtor filed this Chapter 7 petition in bankruptcy on May 2, 1989. 2. The Court set August 7, 1989 as the last date for filing a complaint objecting to the dischargeability of a debt under 11 U.S.C. §...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of the motion of Judith Ann Bu- *363 chardt (“Debtor”) to avoid a judicial lien of Merchants National Bank and Trust Co. (“Merchants”), pursuant to § 522(f)(1) of the Bankruptcy Code 11 U.S.C. §§ 101-1330 (West 1979 and Supp.1989) (“Code”). JURISDICTION ...
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MEMORANDUM OF OPINION Plaintiff-Debtor filed the above-styled adversary proceeding seeking the determination of the dischargeability of certain debts pursuant to 11 U.S.C. § 523(a)(1) (Counts One and Two) and requesting that Defendant’s tax lien against Plaintiff-Debtor’s residence be avoided pursuant to 11 U.S.C. § 506(d) to the extent the lien exceeds its value (Count Three). The Court finds ...
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*503 DECISION AND ORDER This matter is before the Court on the application of the Debtors in Possession (“Debtors”) to employ Shearson Lehman Hutton, Inc. as financial advisors (“Shear-son”). The United States Trustee, the Official Committee of Unsecured Creditors of the Federated Debtors and the Official Committee of Federated Bondholders’ objected to the Shearson application. T...
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ORDER OF DISMISSAL This case came on for hearing on the United States Trustee’s motion to dismiss this case or convert it to a case under chapter 7 pursuant to 11 U.S.C. § 1112(b). Andrew J. Schmid appeared for the United *628 States Trustee. Arthur Mack appeared for the debtor. Tracy A. Anagnost, Trial Attorney, Tax Division, Department of Justice, and Michael Urbanos, Speci...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW PROCEDURAL POSTURE On November 6, 1987, plaintiff American Honda Finance Corporation (“Honda Finance”) filed a complaint against the defendants Richard W. Cilek and Rosetta K. Cilek (“Debtors”) to except from discharge under 11 U.S.C. §§ 523(a)(4) and 523(a)(6) their claim of $10,355.00, plus interest and repossession costs...
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OPINION In order to decide whether we can confirm the Debtor’s Second Amended Plan of Reorganization (“the 3rd Plan”) at this time, we must determine whether it is appropriate for us to disregard the vote of the Debtor’s largest unsecured creditor rejecting the 3rd Plan because the Debtor’s Objection to that claim, filed during the pendency of the voting period, had not yet been resolved as of ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Marian Wines (the “creditor”) against Fred J. Wines (the “debtor”), pursuant to 11 U.S.C. § 727(a)(2)(A), and (a)(4)(A), and upon the debtor’s counterclaims, and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CARDELL CABINETS, INC.’S MOTION TO DISMISS Came on to be heard the Motion of Car-dell Cabinets, Inc. (“Cardell”) seeking to dismiss this adversary proceeding. The Chapter 7 trustee, James R. Chapman (“trustee”) appeared in opposition. After conclusion of the argument, the court took the matter under advisement to consider the facts and legal conclusion...
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MEMORANDUM OPINION I. INTRODUCTION The Debtors, William and Cynthia McCain, filed their voluntary Chapter 7 petition on January 18, 1989. On May 26, 1989, Debtors filed a Motion To Avoid Lien of Creditor, Century Finance Company of Missouri. The Creditor filed its Answer on June 7, 1989. A hearing was held on the Debtors’ motion on July 14, 1989, and, at the request of the parties, the Court ...
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MEMORANDUM OPINION I. 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)(I), which the Court may hear and determine. II. PROCEDURAL BACKGROUND The De...
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ORDER REQUIRING PRIOR ORDER BEFORE DISTRIBUTION OF SALES PROCEEDS TO MADISON NATIONAL BANK, N.A. ON ITS ASSERTED LIEN In a decision of this date in Jettmar v. The New 5510, Inc., et al., 114 B.R. 317 Adversary Proceeding No. 89-0073, the Court discussed Jettmar’s contention that Madison National Bank, N.A., did not have a perfected lien on the Debtor’s fixtures and leasehold interest, but found it...
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*655 MEMORANDUM The matter before the Court is Defendant Commonwealth Savings and Loan Association’s (hereinafter Commonwealth) Motion to Dismiss the adversary complaint filed by the Chapter 7 Trustee. Co-defendants Yvonne Ollada and Community Federal Savings and Loan Association have joined in and adopted the Commonwealth motion. The allegations set forth in the motion are that ...
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MEMORANDUM OPINION On December 30, 1987, a Judgment of Divorce was entered by the Chancery Court of Hinds County, Mississippi, granting divorce on the grounds of irreconcilable differences to Ernest G. Smith, Jr. and Deborah Britt Smith. A petition under Chapter 7 of the Bankruptcy Code was filed by Ernest G. Smith, Jr. on October 2, 1989. On October 23, 1989, Ernest G. Smith, Jr. filed t...
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DECISION CONCERNING MOTION TO DISMISS This case presents the question whether the Court ought to grant the debtor’s unopposed motion to dismiss made after entry of a discharge when substantial non-exempt estate assets exist that have not been distributed to creditors. The Court concludes that the motion must be denied. The debtor’s sole creditor is the St. Elizabeth’s Hospital on who...
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OPINION The instant proceeding, a state-court mortgage foreclosure action removed to this court by the Debtor, presumably to obtain a receptive forum to prosecute his motion to open a default judgment entered therein, which the mortgagee did not seek to remand, is reminiscent of the matter at issue in In re Miller, 90 B.R. 762 (Bankr.E.D.Pa.1988). It illustrates the difficult i...
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ORDER ON OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE THIS MATTER came on for consideration upon an objection to claim of Internal Revenue Service (IRS) 1 filed by Debtors, Robert H. and Mary A. Kirk. Debtors filed their Chapter 13 bankruptcy petition on April 30, 1986. IRS filed its claim for taxes, interest, and penalties allegedly owed by Debtors for tax years 1981 through...
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OPINION AND ORDER I. Preliminary Matters There are two contested motions before the Court for decision following an oral hearing. The first is the Motion for Leave to File Amended Answer to Third Amended Complaint (“Motion for Leave”), filed on March 1, 1990, by Defendants Helen M. Riley; BancOhio National Bank, Trustee of the Estate of Leo Kletzly; Marcelle S. Kletzly; Micha...
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DECISION REGARDING MOTIONS FOR JUDGMENT ON THE PLEADINGS Plaintiff Betty Jettmar (“Jettmar”) has sued for a determination that her lien on certain assets of The New 5510, Inc., (“the Corporation”) takes priority over the later-filed lien of Madison National Bank (“Madison”). The Court determines that Jett-mar’s lien was unperfected for failure to list the Corporation as debtor on Jettmar’...
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ORDER This matter is before the Court on the motion for an order to be admitted pro hac vice to practice in these proceedings in this Court, filed by Glenn W. Merrick, a member of the law firm of Davis, Graham and Stubbs of Denver, Colorado, on behalf of the debtor, Nu-South Industries, Inc. Having reviewed the motion, the objections thereto filed by Mississippi Chemical Corporation and the United...
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OPINION AND ORDER Before the Court is a Motion of the United States of America to Abandon Real Property or in the alternative to Lift the Automatic Stay. For the reasons provided herein, we find that the United States of America, on behalf of its agency, the Internal Revenue Service (hereinafter “IRS”) has met its burden of proof to lift the automatic stay and that the debtors have failed to me...
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MEMORANDUM OF OPINION STATEMENT OF FACTS Dolly and Fat Yau (the “Debtors”) own a single family residence located in Glendale, California (the “Glendale property”). On August 10, 1983, Fat Yau caused to record a declaration of homestead in the official records of Los Angeles County that described the Glendale property. Mr. Yau resided at the Glendale property at that time. On Dec...
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MEMORANDUM OPINION AND DECISION FACTS During 1983, Robert Burns Jensen and Rosemary Tooker Jensen were president and vice-president, respectively, of Jensen Lumber Company (hereinafter “JLC”). The Jensens also served as directors of this *701 closely-held corporation with each spouse owning fifty (50) percent of the shares of the corporate stock. JLC occupied, as lessee,...
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OPINION AND ORDER ON COMPLAINT OBJECTING TO DISCHARGE AND DISCHARGEABILITY OF DEBT I. Preliminary Matters This submitted proceeding is before the Court following the trial of a complaint filed by Richard E. James, objecting to the discharge of, and dischargeability of a debt owed by, the debtor, Timothy J. McCoy. The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §...
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ORDER ON DEBTORS’ MOTION FOR PARTIAL SUMMARY JUDGMENT THIS IS a Chapter 11 reorganization case and the matter under consideration is *750 an objection to the Claim of Joel A. Schleicher (Claimant). The claim, totaling $1,524,104, is for priority wages in the amount of $2,000, unsecured non-priority wages in the amount of $1,127,083, and attorney’s fees and costs in the amount of $395,021. The...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a confirmed Chapter 11 case, and the matter under consideration is a three-count Complaint by Captran Creditors *754Trust (CCT), Club Baha, Ltd. (Club Baha), and Tropical Properties, Ltd. (Tropical Properties) against David McConnell (McConnell), Gerald McHale (McHale), and McHale, Ezzell and Co., P.A. The Plaintiffs seek both com...
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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 to determine dischargeability of a debt. The complaint is filed by Sullair Rocky Mountain, Inc. (Plaintiff), against Randall W. Van Loan (Debtor/Defendant) claiming that a debt represented by a Colorado judgment in the total amount of $13,-587.58 re...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case. The matter under consideration is a Motion for Summary Judgment filed by Charles Medearis (Trustee), filed in the above-captioned adversary proceeding. The Trustee in his complaint seeks a turnover of certain properties from the Defendants, James H. Ingersoll, Jr. (Junior), and James H. Inger-soll, Sr. (Senior). The claim s...
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ORDER REGARDING MOTION FOR SUMMARY JUDGMENT This is an action to determine the priority of liens on debtor’s accounts receivable. The debtor’s petition lists accounts receivable of $9,992.30 as of the date of bankruptcy on March 2,1989. Plaintiffs, debtor and the United States (on behalf of the Internal Revenue Service), have moved for summary judgment. Defendant, American National Bank and Trust...
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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 Oneida Lake Development, Inc., d/b/a Wood Pointe Marine (“Debtor”) for an order pursuant to § 363 of the Bankruptcy Code (11 U.S.C.A. §§ 101-1330) (West 1989) (“Code”), permitting it to sell all of its real estate, together with all physical assets to Raymond H...
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AMENDED OPINION Creditor Fred Cooke (Cooke) appeals an adverse judgment in a dischargeability case, specifically challenging the court’s conclusion that a creditor, to establish non-dischargeability under 11 U.S.C. § 523(a)(2)(A), must prove that his reliance on the debtor’s misrepresentations was reasonable. We AFFIRM. FACTS The following account of the factual background is ba...
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OPINION Before the Court are the DEBTORS’ Supplemental Objections to the claims of *149 DAVID TOWELL (TOWELL) and ROBERT DAWSON (DAWSON). 1 The basis of TOWELL’s and DAWSON’s claims against the DEBTORS are fully set out in this Court’s opinion at In re Alwan Bros. Co., Inc., 105 B.R. 886 (Bkrtcy.C.D.I11.1989), and will not be restated here in detail. The essential facts are that TOWELL, D...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case and the matter under consideration is an objection filed by William W. and Marian J. Stanley (Debtors) to a claim filed by the United States of America, Internal Revenue Service (Government). The matter is presented for this Court’s consideration by cross Motions for Summary Judgment filed by both t...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of the Objection of a secured creditor, Up State Federal Credit Union (“Up State”) to the confirmation of the repayment plan proposed by Bruce W. Siegfried, f/d/b/a CMCS Inc. (“Debtor”). Up State objects mainly to Debtor’s failure to provide for payment of interest on arrea...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of a motion filed by Kenneth E. and Deborah A. Yackel (“Debtors”) to avoid judicial liens of Beneficial of New York Inc. (“Beneficial”), Norstar Bank of Central New York (“Norstar”) and Merchants National Bank & Trust Company (“Merchants”), pursuant to § 522(f) of the Bankr...
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ORDER On June 23, 1989, the Chapter 7 trustee, Joseph D. Bradley, filed his Chapter 7 Trustee’s Application for Turnover of Funds Held by Chapter 13 Trustee 1 against the Chapter 13 trustee, Tedd E. Mishler. The parties stipulated to all facts, filed simultaneous briefs, and thereafter responded to the opponent’s brief. On December 4, 1989, the court took the matter under advisement. *608 ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint of Edward L. and Mary J. Brookman, seeking to determine the dischargeability of their unpaid 1984 income tax liability pursuant to 11 U.S.C. § 523(a)(1). Trial was held on February 12, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of...
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DECISION Disputes between landlords and tenants are not difficult to find in the bankruptcy court. Landlords are often angered by defaulting tenants who file petitions in bankruptcy either to stay a dispossess proceeding or in the hope of subleasing or assigning valuable properties to other entities at a profit. Nevertheless, the Bankruptcy Code condones such actions regardless of provisi...
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MEMORANDUM OPINION Before the court is the objection by the Debtor to the Trustee’s proposed distribution. The essential facts are undisputed. Debtor, Mary Jane Zimmerman, individually, filed this voluntary bankruptcy petition under Chapter 7 on August 11,1986; a corporation filed a related Chapter 7 and James R. Huff was appointed Trustee in both cases. Under the Bankruptcy Rules th...
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MEMORANDUM OPINION AND ORDER This matter came on for hearing on a Motion to Reconsider this Court’s order of March 23, 1990, denying a Motion to Convert to Chapter 7. This case was filed June 5, 1989, as a Chapter 7. On December 22, 1989, the Debtor filed a Motion for Order Converting Chapter 7 Case to Case under Chapter 13, and on January 16, 1990, the Court entered its Order of Conversion. On Ja...
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MEMORANDUM OPINION AND ORDER The matter presently before the court is an avoidance action that was commenced by the appointed Chapter 11 trustee, Peter W. Billings, Jr. (“trustee”). The trial of the above-entitled adversary proceeding began on February 14, 1990. Robert P. Rees appeared on behalf of the trustee. Carolyn Montgomery and William R. Richards appeared on behalf of the defendant...
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OPINION Creditor brought a complaint to determine a debt nondischargeable pursuant to 11 U.S.C. Sections 523(a)(4) and (a)(6). The bankruptcy court found that Mr. Itule embezzled and willfully and maliciously injured the creditor’s property, and determined the debt to be nondischargeable. Mr. Itule appeals this decision. Creditor cross-appeals the court’s denial of its request for attorne...
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MEMORANDUM OPINION This matter comes before the Court on the application of Rudnick & Wolfe (the “Applicant”) pursuant to 11 U.S.C. § 330 and Federal Rule of Bankruptcy Procedure 2016 for allowance of final compensation in the amount of $102,283.65 1 and reimbursement of expenses in the amount of $7,485.05 from the period March 9, 1989 through October 31, 1989. Proper notice wa...
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FINDINGS AND CONCLUSIONS At Saint Louis, in this District, this 1st day of June, 1990. On May 3, 1990, at the conclusion of the trial of these matters, the Court announced a summary of its findings and conclusions and orders from the bench. In preparing these written Findings and Conclusions, the Court has considered the record as a whole, including the Debtor's objections to the Movant’s Pro...
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MEMORANDUM OF DECISION The court has before it three separate motions for the allowance of interim compensation and expenses filed by the law firm of Brouse & McDowell (Brouse), counsel for the confirmed debtors. The motions seek the aggregate allowance of $149,-441.50 in attorney fees and $10,274.96 in reimbursement of expenses. Objections to the applications were filed by the Aetna...
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OPINION I A trustee in bankruptcy under Chapter 11 of the Bankruptcy Code (“Code”) turned over substantial funds to himself as Chapter 7 trustee when the case was converted. As Chapter 11 trustee he then sought fees based in part on such funds. From a denial of fees on those funds, the Chapter 11 trustee appeals. REVERSED and REMANDED. II FACTS The facts are not disput...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Motion to Permit Filing Award and Request for Entry of Judgment on the Award Together with Costs and Attorneys Fees filed by the Debtor, Tri Systems Consulting & Design, Inc. (“Tri Systems” or “Insured” herein), and the Trustee, William Bass. William S. Finger of Fresh & Finger, P.C. appeared for Tri Systems and the Tr...
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MEMORANDUM DECISION ACTION The Small Business Administration (SBA) filed motions to: 1) dismiss the Chapter 12 petition of Cloverleaf Farmer’s Co-operative (Cloverleaf or debtor) on grounds the debtor fails to qualify as a family farmer; 2) obtain relief from the automatic stay so the SBA may offset government crop payments due the debtor; and to 3) sequester rents. Debtor resisted, ...
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MEMORANDUM OPINION This matter comes before the Court on a motion for default judgment pursuant to Federal Rule of Bankruptcy Procedure 7055 which incorporates by reference Federal Rule of Civil Procedure 55, filed by the Illinois Department of Employment Securi *568 ty (“IDES”). For the reasons set forth herein, the Court having considered all the pleadings, exhibits and aff...
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DECISION The debtor, Phyllis Jolene Hodges, who served as executor of the estate of her aunt, Velma Rushing, has been charged in the complaint with “fraud or defalcation while acting in a fiduciary capacity” by the plaintiff, Richard Pisoni, Special Administrator of the Estate of Velma Rushing. Plaintiff asks that any debt owed by the debtor to the Estate of Velma Rushing be declared nond...
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MEMORANDUM OPINION This case is before the Court upon objections by the Trustee, George E. Mills, Jr., and Florida National Bank to property claimed exempt by the debtors. Upon the evidence presented, the Court enters the following Memorandum Opinion: FACTS The debtors, Edward and Kay Schlein, filed for relief under Chapter 11 of the Bankruptcy Code on September 13, 1988. The ca...
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MEMORANDUM AND ORDER This matter is before the Court on the motion of General Electric Capital Corporation (“General Electric”) to extend the time *580 for filing a complaint to determine dis-chargeability of debt. 1 General Electric contends that neither it nor its counsel received notice of the debtors’ bankruptcy case until after the date for filing dis-chargeability complaints had passe...
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MEMORANDUM OF DECISION I. PROCEDURAL BACKGROUND OF THE CASE. In July of 1989, the Defendant Reginald Dobbs d/b/a Reg Dobbs Construction, contracted with the Plaintiffs Neal and Julie Custer to build them a house on property they owned near Boise. It is the events that transpired between that time, and November 6, 1989, when Dobbs and his spouse filed a Chapter 7 petition, that have g...
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MEMORANDUM OPINION This proceeding is before the Court upon the complaint of Continental Country Club, Inc. (“Continental”) to determine discharge-ability of debt, declaratory relief, injunctive relief and civil contempt. The facts and documentary evidence were stipulated to by the parties. Upon consideration of the evidence, the Court makes the following Findings of Fact and Conclus...
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ORDER The matter being considered here concerns the Trustee’s objection to the Debtors’ claim of exemption. On August 3, 1989, the Debtors, as husband and wife, filed a voluntary joint Bankruptcy Petition under Chapter 7 of Title 11 of the United States Code. A. Thomas DeWoskin was thereafter appointed Trustee in this case. The Debtors’ Schedules and Statements of Affairs listed real property...
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OPINION The Plaintiff-Debtor beclouds the issues actually presented in this proceeding by arguing that her claim for statutory damages under the federal Truth-in-Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”), arises from her status as a potential personal representative of her deceased alleged father, the obligor of a consumer financing contract. However, we conclude that we must determine ...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART, AND GRANTING PARTIAL SUMMARY JUDGMENT TO DEFENDANT This adversary proceeding came on before the Court on November 30, 1989, upon Plaintiff’s motion for summary judgment. Plaintiff appeared by its attorneys, Hart Kuller and Charles A. Durant. Defendant appeared by its attorney, Mark J. Kalla. Plaintiff’s Unsecured Creditors Co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint of Ansvar America Insurance Company objecting to the discharge of the defendants, Robert H. Klein and Barbara A. Klein. A trial was held on April 12, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT The defend...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a motion to dismiss filed by Melvin R. Mann, Robert Walters, and Clara Walters (“Mov-ants”). An evidentiary hearing was held on February 20, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT The debtors filed a petition seeking relief under...
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MEMORANDUM DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT (FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO 28 U.S.C. § 157(c)(1) AND BANKRUPTCY RULE 9033) This adversary proceeding is before this Court pursuant to a withdrawal of the reference and referral for findings and conclusions subject to de novo review in accordance with 28 U.S.C. § 157(c)(1) 1 ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Continued Hearing on Motion of Chemical Mortgage Company for an Order Vacating Court Order of September 28, 1989, and Objections thereto by Debtor. At the Hearing, the Court allowed the parties the opportunity to file written arguments with the Court relative to the issue of the propriety of allowing Chemical Mortgage Co...
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MEMORANDUM OPINION At issue in this case is the disposition of some $79,000.00 in proceeds remaining from the sale of the debtors’ residence. The trustee is before the Court seeking to have the Court approve a compromise by which Carnes Brothers Construction Company Inc. will receive $30,000.00, the debtor Trudy Shrewder will receive $12,500.00 and the estate will receive the balance of the funds ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Trustee’s Motion for Summary Judgment on his Complaint For Judgment on Fraudulent Transfer against W. Arthur Hansen. The Court has reviewed the written arguments of counsel, the depositions and other evidence, as well as the entire record in this case. Based on that review, and for the following reasons, the Court finds...
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MEMORANDUM OPINION This matter comes to be heard on the fee application of Old Kent Bank N.A. f/k/a Illinois Regional Bank N.A., Elmhurst (the “Bank”) by and through its counsel, Burke, Wilson & Mcllvaine, pursuant to 11 U.S.C. § 506(b) for the allowance of $45,514.55 1 in compensation and reimbursement of expenses in the amount of $1,576.14. Proper notice was given to all cred...
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ORDER ON MOTION TO VOID LIEN This matter is before the Court pursuant to a motion filed by the Debtors under 11 U.S.C. § 522(f)(2). The Debtors seek to void a nonpossessory nonpurchase-money lien in certain hand tools, a chain saw and a horse trailer. The Debtors claim that these items are in their possession and are exempt pursuant to the provisions of C.R.S. § 13-54-102(l)(g) as farm equipment. ...
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MEMORANDUM In this adversary proceeding, plaintiff seeks a declaration that its obligation on a student loan is dischargeable under 11 U.S.C. § 523(a)(8). The limited question now considered is whether the bankruptcy court has subject matter jurisdiction to enter judgment against plaintiff upon defendant’s counterclaim seeking judgment for the unpaid balance of the loan. FACTS Plaintiff, Jo...
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MEMORANDUM OPINION ON “OID” ISSUE This decision involves the debtor’s Motion for Partial Summary Judgment on Objection to Claim of Midlantic National Bank, as well as the claimant’s Objection to Confirmation of the Third Amended Joint Plan of Reorganization proposed by Northeast Utilities Service Company and others. Both disputes concern whether unam-ortized original issue discount (“OID”...
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AMENDED DECISION This case is before the court on motions by the secured creditor for relief after confirmation of a Chapter 11 plan or, alternatively, for dismissal of the Chapter 11 case. This is a core proceeding under 28 U.S.C. § 157(b)(2). The debtor requested relief pending appeal by the creditor. After reviewing the evidence, this court is satisfied that the creditor is entitled to relie...
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MEMORANDUM The issue is whether rents constitute cash collateral where the mortgage holder recorded an assignment of rents in 1986, the legislature of Tennessee declared registration to be a method of perfecting securi *117 ty interests in rents in 1989, and this Chapter 11 was filed in 1990. The rents are cash collateral. I. The debtor’s principal asset is an apart...
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JOURNAL ENTRY THIS MATTER came before the court on a telephone hearing to determine whether acts by the debtor’s former spouse to collect a debt arising out of a divorce decree violated the automatic stay. The issue arose in the context of debtor’s Motion for Imposition of Damages Against Marion G. Cline and Joseph H. Murray for Violation of the Automatic Stay (Fil. # 8). Mr. Trev Pederso...
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TABLE OF CONTENTS I. ISSUES AND RECORD.Page 822 II. KEY FINDINGS AND CONCLUSIONS.Page 823 III. APPLICABLE LEGAL STANDARDS.Page 825 IV. THE SEABROOK INVESTMENT.Page 827 Construction and Cost.Page 827 Excess Cost Plants .Page 828 The 1987 Write-Down.Page 828 V. THE PLAN/COMPROMISE.Page 829 The Plan Auction.Page 829 The Plan Compromise.Page 829 ...
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ORDER This matter having come on for status hearing upon the complaint of Poissonnerie La Belle Maree, Inc. versus Gill Johnson, et al., on the motion of Border Transport, Inc. for summary judgment, and on the Trustee’s petition for removal; due notice of said hearing having been given; the debtors having appeared, the Trustee, Theodore Hall, having appeared, Marc Bradley having appeared as att...
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*232 ORDER This matter arises on the objection of the Trustee to the claim of General GMC, Incorporated. Previously a claims filing bar date of February 6, 1989 was established. Rule 3002(c), F.BK.R. On that date, creditor filed a claim for $110,790.02. At the request of the Trustee, creditor provided documentation for the claim, and subsequently filed an amended claim for $149,-333.12 on F...
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MEMORANDUM OPINION ON “PREPAYMENT PREMIUM” ISSUE This decision involves the Objections to Confirmation of Maryland National Bank and Bank of New England, as Indentured Trustees, to the Third Amended Joint Plan of Reorganization proposed by Northeast Utilities Service Company and others. Both parties are seeking what is typically termed “prepayment premiums” under the terms of Indentures o...
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114 B.R. 804 (1990) In re PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Debtor. Bankruptcy No. 88-00043. United States Bankruptcy Court, D. New Hampshire. April 20, 1990. Richard Levin, for Public Service Co. Geoffrey B. Kalmus, J. Michael Deasy, for Unsecured Creditors Committee. Howard J. Berman, for Equity Committee. Mark W. Vaughn, for Frederick J. Coolbroth, Manchester, N.H., for the State of N.H...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING OBJECTIONS TO ASSIGNMENTS OF CLAIMS TO AMROC INVESTMENTS, L.P. This matter comes before the court upon Debtors three objections to assignments of claims to AMROC Investments, L.P. (“AM-ROC”) [Assignment of Claims Docket (“Docket”) Nos. 430, 442, 448 and 449]. The matter was duly scheduled for hearing with notice provided to the parties. Bo...
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DECISION ON ORDER TO SHOW CAUSE FOR AN ORDER (A) DISMISSING CHAPTER 11 CASE; (B) OR GRANTING RELIEF FROM AUTOMATIC STAY; (C) OR REQUIRING DEBTOR TO PROVIDE ADEQUATE PROTECTION; AND (D) AWARDING COSTS As a creditor holding a secured mortgage claim, Bank Audi (USA) (“Bank Audi”) has moved for an order dismissing the above-captioned Chapter 11 case pursuant to 11 *43 U.S.C. § 11...
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MEMORANDUM OPINION At issue before me is the scope of relief which may be afforded a debtor against governmental defendants who have been found to have “willfully” violated the bankruptcy automatic stay, 11 U.S.C. § 362(a). See generally In re Atlantic Business & Community Dev. Corp., 901 F.2d 325 (3d Cir.1990). Because the above two adversary proceedings have the same defendan...
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*60MEMORANDUM OPINION These matters are before the Court on motions by the United States Department of the Navy (“the Navy”) for modification of wage orders entered in these chapter 13 cases. Both wage orders directed the Navy as employer of the debtors to make payments from the debtors’ wages to Robert M. Wood, the standing trustee (“the trustee”), and to the debtors’ mortgagees. The Navy objects...
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ORDER On February 8, 1989, Carl W. Hartman and Judy Kay Hartman filed a petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. Their 36-month plan proposed weekly payments of $208.63. The debtors listed, as an exempt asset, Carl Hartman’s interest in a retirement plan with his employer. On April 7,1989, First Federal Savings & Loan Association (First ...
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DECISION ON DISCHARGE OF LIENS This is a proceeding brought by the Chapter 7 trustee which seeks a determination that liens against the proceeds of the sale of real property located in Purdy’s, New York, and designated on the tax map of the Town of North Salem, County of Westchester, as Lots 40, 155 and 124 of Block 11689 (the “property”) should be discharged. STATEMENT OF FACTS ...
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OPINION This matter came on for consideration of the Debtor’s Motion to Avoid the Judicial Lien of Creditor, Nu West Florida, Inc., on her homestead property. Debtor is claiming federal exemptions 11 U.S.C. § 522(d)(1) and is relying on the avoidance power of 11 U.S.C. § 522(f). This opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule *167052 and disposes...
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MEMORANDUM OPINION This matter comes before the Court upon the motion of William R. Smith and Anna M. Smith (“petitioners”) for judicial review of their bankruptcy petition, lodged in this Court. The Court denies the motion to permit Mr. Smith to file the petition through his wife by virtue of a power of attorney which the wife holds, but such denial is without prejudice to Mr. Smith’s right to...
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OPINION REGARDING MOTION TO DISMISS On November 14, 1989, the plaintiff American Express Centurion Bank filed the dischargeability complaint commencing this adversary proceeding. The defendant Jean Paul Schoofs moves to dismiss the adversary proceeding as untimely. Bankruptcy Rule 4007(c) provides a deadline for filing a dischargeability complaint but significantly provides that notice mu...
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MEMORANDUM OPINION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS COMPLAINT TO ESTABLISH A LIEN ON RENTS AND ON DEBTOR’S MOTION FOR USE OF CASH COLLATERAL This core proceeding 1 is before the Court on the plaintiff’s Complaint to Establish a Lien on Rents and For Temporary Injunction 2 and the debtor-defendant’s related motion for use of cash collateral....
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*7 OPINION REGARDING MOTIONS TO DISMISS These adversary proceedings, one objecting to the Debtor’s discharge and the other seeking determination of the dischargeability of a debt, were filed beyond the bar dates as set forth in Bankruptcy Rules 4004(a) and 4007(c). The defendant (“Debt- or”) accordingly moves to dismiss. The plaintiffs have filed virtually identical oppositions o...
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*385 ORDER This matter is before the Court on the Motion of Citizens and Southern National Bank (“C & S”) for Relief from Automatic Stay filed on February 14, 1990. It is a core proceeding over which the Court has jurisdiction pursuant to 28 U.S.C. § 157(b)(2)(G) (1990). A hearing on the motion was held on March 23, 1990, after which the parties filed supplemental post-hearing br...
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OPINION This matter came on for consideration of the Debtor’s Emergency Motion for Valuation of Securities as well as Creditor’s Motion to Lift the Automatic Stay. This Opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052 and disposes of all the issues presented to this Court in both motions. Statement of Facts The basic facts of the case at hand ar...
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OPINION AND ORDER There is a basic principle of bankruptcy law which some have had difficulty accepting: A claim is secured only to the extent of the value of the property on which the lien is fixed; the remainder of that claim is considered unsecured. United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Indeed, the princi...
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ORDER This matter is before the Court on objection by United Mortgage Corporation (UMC) to the Debtor’s proposed Chapter 13 plan. The issues were heard on May 10, 1990, and appearances are as noted in the record. The matter was thereupon continued pending receipt of final briefs, which have now been submitted. The Court, having considered the evidence and arguments introduced and submitte...
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MEMORANDUM The Debtor’s landlord appears to contend that the instant contested matter presents an issue of the impact of the failure of a debtor-tenant to assume a non-residential realty lease, pursuant to 11 U.S.C. § 365(d)(4), upon a motion by a landlord for relief from the automatic stay to recover possession of non-residential realty of a Chapter 13 debtor-tenant. We conclude that, at...
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MEMORANDUM OPINION On April 29, 1989, Gentry Lee Blackwell (“plaintiff”), by counsel, filed this complaint to determine the dischargeability of his tax liability owed to the Commonwealth of Virginia (“State”) for the years 1979 and 1980. The issue before the court is whether or not the debt owed by the plaintiff to the State is dischargeable under 11 U.S.C. § 523(a)(l)(B)(i). The def...
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*593INTRODUCTION This matter before this Court is a determination of whether a partial repossession of collateral without any subsequent sale or disposition serves as a complete satisfaction of the Creditor’s claim against Debtor as to the remaining collateral. After a review of the dispositive Texas State Law, this Court is of the opinion that it does not. FACTUAL BACKGROUND Debtor-in-possession,...
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ORDER GRANTING RELIEF FROM CODEBTOR STAY This matter is before the court upon two motions by the Ohio Student Loan Commis *114 sion for relief from the co-maker automatic stay under 11 U.S.C. § 1301(a) and (c) and § 362. This proceeding arises in a case referred to this court by the standing order of reference in this district and is determined to be a core proceeding pursuan...
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ORDER This matter is before the Court on objection by Farm Credit Services (FCS) to the Debtors’ claimed exemptions, and on the Debtors’ motion to avoid the FCS lien on certain farm machinery and equipment claimed exempt. Appearances are as noted in the record. Based upon the arguments of counsel and upon all the records and files and proceedings herein, the Court being fully advised in t...
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ORDER GRANTING SUMMARY JUDGMENT This matter is before the Court on cross-motions for summary judgment by Defendants Metropolitan Cosmetic and Reconstructive Surgical Clinic, P.A. (Metropolitan or Debtor), Dr. Allen W. Moberg, and Ha-binger, Inc., on certain cross-claims pleaded in the adversary proceeding by Metropolitan. Appearances are as noted in the *187 record at hearing...
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OPINION At issue in this case is whether Debtor is liable, pursuant to 26 U.S.C.A. § 6672, to the Department of the Treasury — Internal Revenue Service for a tax penalty for failure to remit withheld quarterly employment taxes. FACTUAL BACKGROUND The facts are relatively simple. The Internal Revenue Service (“IRS”) maintains that during certain portions of 1981 and 1982 Charles Vaglica, (“D...
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MEMORANDUM ORDER This matter came on for hearing on March 16,1990 upon the timely objection of Trustee Michael J. Iannacone to Debtor Gene Leroy Fritsvold’s claimed exemption of his interest in the Research, Incorporated Profit Sharing Retirement Plan and Trust (hereinafter Research Plan), a Plan available to him through his employment with Research, Incorporated; and, Debtors’ Motion see...
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ORDER On April 18, 1990, the Unsecured Creditors’ Committee (the “Committee”) filed this Motion to Intervene in the present adversary proceeding, in which debtor Munford, Inc. (“Munford”) seeks to substantively consolidate the estate’s assets with those of TOC Retail, Inc. and Majik Market Management Corp. (collectively referred to as “Defendants”). Defendants filed an objection to the motion on ...
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MEMORANDUM OPINION & ORDER 1 I Statement of Proceedings This Chapter 13 case came before the Court on the Objection by the Debtor filed on September 7, 1988 to the proof of claim of the Bank of Homewood (hereinafter: “Bank”) filed August 15, 1988, in the sum of $45,750.43 by its Attorney William Bryan. To say the least, this case has a convoluted procedural hist...
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ORDER On August 25, 1987, twenty-one plaintiffs (plaintiffs) filed a petition for an order of reclamation of quantities of crude oil in the Chancery Court of Union County, Arkansas, against MacMillan Petroleum (Arkansas), Inc., MacMillan Petroleum Company and MacMillan Ring-Free Oil Company, Inc. On the same day, the Chancery Court issued a temporary injunction prohibiting the defendants ...
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MEMORANDUM AND ORDER There is often a fine line between love and hate. Unfortunately for Ivan York, Jr., Julie Camden crossed that line when she placed a .22 caliber pistol to York’s abdomen and pulled the trigger. The issue before the Court is the dischargeability of the debt arising from this incident. The facts surrounding this proceeding are not in dispute.1 Ivan York, Jr., (York) and Julie C...
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MEMORANDUM OF DECISION This Chapter 11 case has come before the court on an unusual application, filed by the attorneys for the debtor in possession, seeking “leave to apply” a retainer that they received from the debtor before the case was filed. Because the proper treatment of prepetition retainers is an area of developing law, the court requested briefs on the legal issues raised by th...
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MEMORANDUM The Debtor-In-Possession and The First National Bank of Boston (hereinafter, FNBB) have entered into an agreement for the Debtor’s use of cash collateral. After notice of the agreement had been mailed to all creditors and parties in interest pursuant to Bankruptcy Rule 4001(d), a timely objection was filed on behalf of-R.J. Kar-sten, Inc. Thereafter, FNBB and R.J. Kar-sten filed memo...
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MEMORANDUM OF DECISION This matter came before the Court upon the Debtor/Plaintiff's [JoAnn Griffin Rutledge] Complaint for Turnover of Property. The complaint was granted and the Creditor/Defendant, [Toyota Motor Credit] appealed. The creditor alleges that the collateral that was the subject of the complaint is not property of the debtor’s estate. An appeal having been taken this Court h...
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MEMORANDUM DECISION AND ORDER THIS CAUSE came on before the Court on May 30, 1990, upon the Complaint to Determine Tax Liability filed by the Debt- or, Stanley Kaufman, and upon the Motion for Abstention filed by the Defendant, United States of America. For the following reasons, the Court abstains from hearing this adversary proceeding and determining the Debtor’s tax liabilities. The Debtor...
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MEMORANDUM OPINION Oxford Dev. Ltd.' is a Missouri corporation. The first experience this Court had with it was when it filed a Chapter 13 petition before this author on March 28, 1990, at 1:00 P.M. Even occasional students of the arcane arts referred to as insolvency practice will have realized that such relief was not available to a corporation. The Court, sua sponte, scheduled a hearing, det...
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MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT I. On April 7, 1986, the debtor gave the defendant an unsecured $3,000,000.00 promissory note (the “1986 note”) and received a line of credit from the defendant for that amount. On that same date, the debtor and the defendant entered into a “Commercial Revolving Loan Agreement” which specified the terms under which the debtor could ...
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MEMORANDUM OPINION Builders Supply Company (“Builders Supply”) requests the court to determine that the debts accrued by Diane H. Lane and Thomas L. Laughlin while trading as Tri-City Construction Company are excepted from discharge. Builders Supply contends that the debtors’ violation of Va.Code § 43-13 1 constitutes larceny under § 523(a)(4) of the Bankruptcy Code. A com...
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OPINION Before the court is a complaint filed by plaintiffs objecting to the dischargeability of a debt allegedly owed to them by debtor pursuant to 11 U.S.C. § 523(a)(2)(A). Because we find that plaintiffs have not met their burden of proving fraud or reasonable reliance, we find that the debt is dis-chargeable and enter judgment in favor of debtor. The facts of this case are relatively stra...
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ORDER DENYING MOTION TO CONVERT The Debtors have moved the Court for an order converting this Chapter 11 case to Chapter 12 of the Bankruptcy Code. For the reasons set forth below, the Debtors’ motion is denied. The Debtors filed their petition under Chapter 11 on January 25, 1984. On September 19, 1988, the United States Trustee filed a motion to dismiss or convert, or for a date certain for...
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MEMORANDUM OPINION The plaintiff filed a complaint requesting the court to quash execution obtained by defendant The Wetsel Seed Company, Inc. (“Wetsel”), against personal assets of the individual plaintiffs Crumpler and Sims. Subsequently C.R.I. Sales, Inc. (“C.R.I.”), was allowed by the court to intervene. At trial the case was submitted on a full stipulation of facts and oral argument ...
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MEMORANDUM DECISION At issue is whether this court may “abstain” from determining the threshold question of the existence of a contract in connection with a motion to reject an exec-utory contract, where there is a pending state court action, set for trial, which shall determine the existence of a contract. 1 This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and §...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Motion for Allowance and Payment of Claims filed February 1, 1990, by Trident Properties Limited (“Trident”) and the objections thereto filed by the Chapter 7 Trustee, Fairfield and Woods, P.C., and the Chapter 11 Creditors Committee. The Debtor filed a voluntary Chapter 11 petition on April 5, 1989. The Case was convert...
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MEMORANDUM OF OPINION THIS CAUSE came on for trial on February 7, 1990, on the Plaintiff’s complaint seeking an exception to discharge pursuant to § 523(a)(2)(B) of the Bankruptcy Code and denial of the debtors’ discharge pursuant to § 727(a)(5) of the Bankruptcy Code. 1 The plaintiff, ITT Commercial Finance Corporation claims that the debtor, formerly a mobile home dealer, obtained an extens...
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OPINION Deutsche Credit Corporation (“Deutsche Credit”), a creditor of the Debtor, The Tor-gerson Company (“Torgerson”), initiated this adversary proceeding by filing its “Complaint to Determine Property of the Estate and Validity, Priority and Extent of Lien” shortly after the case was converted from Chapter 11 to Chapter 7. The central issue is whether Deutsche Credit’s lien or the leas...
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MEMORANDUM OPINION This matter came before the Court on August 23, 1989, October 6, 1989, and March 27, 1990, for trial on the merits on the trustee’s suit to recover assets of the estate. Having considered the arguments of counsel, exhibits, stipulation of facts and legal memoranda submitted by the parties, having consulted the appropriate authorities and being otherwise fully informed a...
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MEMORANDUM OF OPINION ON MOTION FOR CONFIRMATION PURSUANT TO 11 U.S.C. § 1129(b) THIS MATTER came on for hearing on April 26, 1990, in connection with confirmation of the debtor, Fairfield Plaza Associates, Ltd. (Fairfield) Second Amended Plan of Reorganization. Dollar Dry Dock Savings Bank (Dollar), holder of a secured claim, has rejected the plan and filed objections to confirmation. Fa...
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115 B.R. 288 (1990) In re Raul R. MATA and Gloria M. Mata, Debtors. Bankruptcy No. 89 B 14792 E. United States Bankruptcy Court, D. Colorado. June 14, 1990. *289 Rex T. Johnson, Colorado Springs, Colo., for debtors. Paul T. Gefreh, P.C., Colorado Springs, Colo., interim trustee. OPINION AND ORDER ON CLAIM OF EXEMPTION CHARLES E. MATHESON, Chief Judge. This bankruptcy case was filed on November 1...
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ORDER ON MOTION TO AMEND PROOF OF CLAIM Connecticut General Life Insurance Company, a creditor in this Chapter 11 case filed a motion for leave to file an amended proof of claim to which the debtor-in-possession, Synergetics, Inc. has objected. Having considered the arguments of counsel together with the memorandum of law filed in support of the debtor’s objection, and for the reasons set forth b...
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OPINION This matter comes before the Court on the motion of Jack Birnberg & Associates, the bankruptcy trustee for F.D. Roberts Securities, Inc., (the “Trustee”) seeking an order enjoining the Attorney General of the State of New Jersey (the “Attorney General”) from continuing a civil action pending in the New Jersey Superior Court, Chancery Division, Essex County, (the “State Court Actio...
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FINDINGS OF FACT At Anniston, Alabama, on April 19 and 20, 1990, there was tried before the Court *326that aspect of the above-styled adversary proceeding whereby the Court is requested to determine to whom the plaintiff should make the payments on its promissory notes to Karen Rush for $1,050,000, secured by a purchase-money mortgage on its real property, as between Karen Rush and Rush Building ...
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OPINION This case came before the Court on the Motion for Summary Judgment of the Defendant and Counterclaimant, the United States Department of Education. The Department filed this Motion on September 5, 1989, in response to the Complaint to Determine Dischargeability of Debt [under] Section 523(a)(8) for Permanent Injunction filed by the Plaintiff, James F. Malone, on August 3, 1988, an...
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MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT I. On February 26, 1987, the defendant filed a petition under chapter 7 of the Bankruptcy Code. On May 27, 1987, the plaintiff commenced the instant adversary proceeding under Code § 523(a)(2) and (4), 1 seeking a judgment denying the debtor a discharge of his debt to the plaintiff. The plaintiffs Complaint Objecting to D...
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MEMORANDUM OF DECISION The above-entitled motion was brought regularly before this court by Claimant Piper Acceptance Corporation (hereinafter “PAC”) and was taken under submission by this court following oral arguments. Alleging that George T. Gott, Jr. (hereinafter “Debtor”) failed to properly notify it of the referenced objection to the claim, the opportunity for a hearing therefor, and the su...
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MEMORANDUM OPINION Loran Leggett and Ralph D. Herin, Mov-ants, filed a motion for relief from the automatic stay of the Bankruptcy Code on May 9, 1990. Movants seek to evict Terry Gene Morgan and Pamela Carter Morgan, Debtors, from their residence. A hearing was held on May 29, 1990. The Court, having considered the evidence presented and the arguments of counsel, now publishes this memor...
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FINDINGS AND CONCLUSIONS ON APPLICATION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSES Introduction The above-styled case was commenced by the corporate debtor's voluntary petition under title 11, chapter 11, United States Code, filed June 22, 1988, and remains *341 pending before this Court under said chapter. The debtor was organized for the purpose of constructing ...
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ORDER On February 20, 1990, Munford, Inc. (hereinafter “Munford”) filed a complaint against TOC Retail, Inc. (hereinafter “TOC”) and Majik Market Management Corporation (hereinafter “MMMC”), collectively referred to as “Defendants,” seeking a judgment substantively consolidating Defendants’ assets and operations with those of Munford. The matter is currently before the Court on Defendants...
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CONCLUSIONS BY THE COURT AND ORDER ON JOINT MOTION OF DEBTOR AND TAYLOR COMPANY In the above-styled chapter 11 bankruptcy case, Taylor Freezers of Alabama, Inc., the debtor, and Taylor Company filed a joint motion to have the Court: (1) “approve compromise”; and (2) “accept exec-utory contract as modified.” Notice of this motion to parties in interest was given by the debtor pursuant to i...
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DECISION This case began with debtor’s petition for relief under Chapter 13 on June 27, 1988. On October 7,1988, the court denied confirmation of a proposed plan. At a status conference held on September 6, 1989, it came to the court’s attention that debtor had not filed any further plan following the denial of confirmation. As a result, by an order entered on September 28, 1989, the...
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MEMORANDUM DECISION ON MOTIONS FOR SUMMARY JUDGMENT BACKGROUND On July 8, 1986 Fugazy Express, Inc. (the “Debtor”) filed a voluntary petition for relief under Chapter 11, Title 11, United States Code, § 101 et seq. (the “Bankruptcy Code” or “Code”). The Debtor was engaged in the business of selling and servicing franchises for livery and limousine services to independent l...
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DECISION ON MOTION TO REOPEN CHAPTER 7 CASE The debtors’ motion to reopen this case under 11 U.S.C. § 350 will be denied because reopening is unnecessary to accord the debtors relief. The debtors filed a statement of intention under 11 U.S.C. § 521(2)(A) with respect to their car which secured a consumer debt owed to GMAC, stating that the debtors would “keep & continue regular mo. p...
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MEMORANDUM OPINION The matter before the Court is the Debt- or’s Objection to the claim of The United Steelworkers of America, AFL-CIO, CLC (“the Union”). For the reasons set forth below, the Union’s claim is determined to be limited by the statutory amounts set forth in 11 U.S.C. §§ 507(a)(3) and (a)(4), and no portion of the Union’s claim is found to be an administrative expense under 1...
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MEMORANDUM OPINION Before me is a Motion to Dismiss by debtor’s principal creditor Realty Funding Corporation on the ground that a non-business debtor is not entitled to file a chapter 11 petition as a matter of law. This Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 157, and the general reference order dated February 11, 1985 by the U.S. District Court for New Hampshire. A...
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MEMORANDUM AND ORDER Gregg and Sheryl Johnson (“debtors”) filed a petition under Chapter 7 of the *161 Bankruptcy Code on December 12, 1989. Debtors listed property taxes owing for 1988 in the amount of $1100.00, secured debts totaling $40,500.00 and unsecured debts totaling $36,759.19. The secured debts consist of $34,000.00 owed on debtors’ residence pursuant to a Contract for Deed, and $65...
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MEMORANDUM OPINION The matter before the Court is the Motion of the NORTHEAST OHIO DISTRICT COUNCIL OF CARPENTERS for an order directing the Trustee to execute a check and enforce a statutory trust. The Trustee filed a brief in response to the Motion, and both parties filed supplemental memoran-*937da. For the reasons set forth below, the Motion of NORTHEAST OHIO DISTRICT COUNCIL OF CARPENTERS is...
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MEMORANDUM OPINION This cause is before the Court on motions to compel the payment by the Debtor of retiree benefits required by 11 U.S.C. § 1114. Subject to the provisions stated below, the Debtor shall comply with the requirements of § 1114 from any unencumbered funds which Debtor has or may obtain during this Chapter 11 case. I. FACTS GF Furniture Systems, Inc. and its parent...
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MEMORANDUM OPINION This matter came on for trial on December 1, 1989, on the Complaint of Plaintiff, RICHARD McLAUGHLIN. Plaintiff contends that certain debts are non-discharge-able under 11 U.S.C. Sec. 523, and he objects to discharge in general under 11 U.S.C. Sec. 727. For the reasons stated below, and in order to preserve a complete record in this case, the business debts of Defendant...
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ORDER DENYING GOODBREAD OF FLORIDA, INC.’S MOTION TO TERMINATE THE AUTOMATIC STAY, OR ALTERNATIVELY, FOR ADEQUATE PROTECTION THIS CAUSE came on for consideration upon Goodbread of Florida, Inc.’s (Goodbread) Motion to Terminate the Automatic Stay, or Alternatively, for Adequate Protection. The Court reviewed the Motion *377 and record and finds the following facts as follows: On October 15,...
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ORDER ON MOTION TO HAVE CHAPTER 7 TRUSTEE TURN OVER CHAPTER 13 MONIES TO DEBTOR AND TRUSTEE’S OBJECTION TO EXEMPTIONS CLAIMED BY DEBTORS THIS CAUSE came on for consideration upon Debtors, James and Patricia Welch’s Motion to Have Chapter 7 Trustee Turn Over Chapter 13 Monies to Debtor and Trustee, Buddy Ford’s Objection to Exemptions Claimed by Debtors. The Court reviewed the Motion, the ...
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ORDER ON DEBTORS’ OBJECTIONS TO CLAIMS OF THE INTERNAL REVENUE SERVICE AND SCHEDULING CONFIRMATION HEARING THESE CAUSES came on for hearing on March 27, 1990, of the objections filed by Stephen J. Poleshuk (Documents Nos. 43, 48, and 49) and Bruce A. Poleshuk (Documents Nos. 25 and 44) to claims in their respective Chapter 13 cases. The hearings were consolidated because the factual and l...
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115 B.R. 200 (1990) In re Charles Samuel ROACH, Debtor. GENERAL MOTORS ACCEPTANCE CORPORATION, a Corporation, Movant, v. Charles Samuel ROACH and Eileen Voss, Trustee, Respondents. Bankruptcy No. 87-02427-BKC-J13, Motion No. 01. United States Bankruptcy Court, E.D. Missouri, E.D. June 19, 1990. Eileen Voss, St. Louis, Trustee. T.J. Mullin, St. Louis, Mo., for debtor. John T. Hawk, Clayton, Mo., f...
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OPINION These appeals arise out of orders relating to the effect of the automatic stay on a disciplinary proceeding brought by the ap-pellee, the Arizona State Bar (“the Bar” or “the Arizona Bar”) against the debtor, E. Gene Wade (“the debtor”). 1 The bankrupt *224 cy court determined that the stay did not apply to the disciplinary proceeding under 11 U.S.C. § 362(...
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MEMORANDUM OPINION This matter comes to be heard on a motion to alter an order entered on May 14, 1990 (the “May 14th Order”) denying the Chapter 7 Trustee’s motion to assume a certain executory contract. For the reasons set forth herein, the motion is denied. I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain the motion pursuant to 28 U.S.C. § 1334 and Genera...
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ORDER On December 11, 1989, Fred W. Buttell d/b/a Realty Investments (“Realty”), plaintiff, filed his Complaint to Deny Discharge-ability of Debt against Stephen James and Debbie Lea Gresso, the debtors, alleging that the sum of $1,680.22 which the debtors owe him is excepted from their discharge pursuant to 11 U.S.C. § 523. 1 The court held a trial on the complaint on May 11, ...
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115 B.R. 214 (1990) In re Charles Richard PETTIGREW and Anna Maude Pettigrew, Debtors. Bankruptcy No. 89-20163-BKC-JJB. United States Bankruptcy Court, E.D. Missouri, N.D. June 19, 1990. *215 Fredrich J. Cruse, Hannibal, Mo., trustee. Vicki A. Dempsey, Hannibal, Mo., for trustee. Gwendolyn S. Froeschner, Shurtleff & Froeschner, Columbia, Mo., for debtors. ORDER JAMES J. BARTA, Bankruptcy Jud...
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ORDER This adversary proceeding was filed by the Trustee to collect for environmental recovery costs incurred at the Debtor’s business site. The Trustee is seeking summary judgment on his complaint, and several Defendants are seeking summary judgment on their cross-claims. A hearing was held on April 10, 1990, and the motions were taken under advisement. For the reasons stated in this opi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The plaintiff, John H. Redfield, trustee in the bankruptcy of A. John Robertson, Jr., brought this action against Peat, Marwick, Mitchell and Company under 11 U.S.C. § 542 to recover $93,279.01 transferred to Robertson from his account balance in a qualified retirement plan. 1 This action was called for trial. At that time the parties sti...
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OPINION This case comes before the court on the complaint filed by James D. Robbins, the Trustee in this estate, for a determination as to the respective interests in proceeds from the sale of cattle present on the farm of Gordon and Joan Zwagerman, doing business as Zwagerman Farms, the Debtors herein, at the time of the filing of the petition and also to recover preferential transfers b...
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DECISION ON MOTION FOR AN ORDER RESTORING INVOLUNTARY PETITION TO CALENDAR The Bank of New York (“the Bank”), a banking corporation organized under the laws of the State of New York, is a peti *459 tioning creditor in each of the three separate involuntary Chapter 7 cases which were filed against the three above-captioned debtors, American Executive Limousine Service, Inc. (“...
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The debtors, Ricky Lynn Jones and Charlotte Faye Cutshaw Jones, filed a motion on December 28, 1989, requesting conversion of their Chapter 7 case to Chapter 13. Additionally, the debtors request revocation of their discharge granted under Chapter 7 (11 U.S.C.A. § 727(a) (West 1979 & Supp.1989)) on July 26, 1989. On December 30, 1989, the court entered an order setting a hearing on the debtors’...
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OPINION A. INTRODUCTION The instant Opinion is intended to resolve the only significant outstanding contested matter in the bankruptcy case of ROBERT P. FRICKER and DOLORES A. FRICKER (“the Debtors”): their Objections to a Proof of Claim filed by Acceptance Associates of America, Inc. (“AAA”). AAA’s Claim was originally filed on March 23, 1990, setting forth a request, as of the date...
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DECISION ON MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM The defendants, Lloyds Bank P.L.C. and The Hokkaido Takushoku Bank, Limited (“the Banks”) have moved pursuant to Fed. R.Civ.P. 12(b)(6), as incorporated by Bankruptcy Rule 7012, for an order dismissing Counts I, III, IV and V of the Amended Complaint filed by the plaintiffs, a group of mechanics’ lienors who furnished labor and ma...
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DECISION ON MOTION TO COMPEL ASSUMPTION OR REJECTION OF AN EXECUTORY CONTRACT David T. Thompson, who has contracted to sell approximately 120 acres of unimproved real estate in Pawling, New York, to the debtor limited partnership, has moved to compel the debtor to assume or reject the executory installment land sale contract. The debtor contends that it should not be compelled to make a deter...
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DECISION ON MOTION FOR AN ORDER PERMITTING DEFENDANT FIBERLUX TO SERVE UPON PLAINTIFF NUNC PRO TUNC FILING OF MECHANIC’S LIEN AND TO FILE NUNC PRO TUNC AFFIDAVIT OF SERVICE AS OF APRIL 25, 1989 Fiberlux, Inc (“Fiberlux”), a creditor claiming a mechanic’s lien on property *463 owned by the Chapter 11 debtor, Frank LoPriore, has moved pursuant to Sections ...
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MEMORANDUM AND ORDER ON MOTION TO EXTEND TIME TO OBJECT TO DISCHARGE Mechanics & Farmers Savings Bank FSB (“MFSB”) moves for an extension of time to file a complaint to determine the dis-chargeability of its claim after the bar date for such complaints has passed. The debtors object. BACKGROUND On August 28, 1989, MFSB obtained a state court judgment of strict foreclosure agains...
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DETERMINATION OF MORTGAGE STATUS This complaint by a junior mortgagee, Heath Management Co., Inc., (“Heath”) challenges a second, third, and fourth mortgage held by the Guaranty-First Trust Company (“Guaranty”) on the debtor’s property and seeks damages on a third-party beneficiary type theory. Aside from the effect of damages, the bank’s first mortgage does not appear to be seriously in dispute ...
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*293 ORDER THIS MATTER comes before the Court upon the Application for Removal filed on March 16, 1990 by Defendants herein, Robert W. Becker and Janice J. Becker (the “Beckers”), and the Response in objection thereto filed on March 29, 1990 by Plaintiff/Respondent, Randall Enterprises, Inc. (“Randall”). A hearing regarding the matter was held on June 6, 1990. The instant ma...
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MEMORANDUM OPINION Pending is the motion to lift stay filed by Health Care Services Corporation of America, Inc. (HSCA). In defense to HSCA’s motion, debtors and trustee argue the deed of trust is voidable under 11 U.S.C. § 544(a)(3) because the deed of trust does not adequately describe the underlying *147note it secures. The trustee asks the court to determine the validity of the deed of trust a...
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OPINION AND ORDER The captioned case came before the court pursuant to the Trustee’s motion for turnover of funds and objection to exemption of Individual Retirement Accounts (“IRAs”) and an Arizona State Pension listed in the debtors' schedules. Debtors claim that their IRAs, totalling $35,005, and their pension, in the amount of $12,000, are exempt under A.R.S. sections 33-1126 and 1121...
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MEMORANDUM AND DECISION ON COMPLAINT TO RECOVER PREFERENTIAL TRANSFER I. On an unspecified date in 1987 the debtor terminated the employment of the defendant Robert W. Breck as a sales agent. Breck subsequently retained the law firm of Kapusta, Otzel & Dey (“KOD”) to represent him in an action against the debtor to recover unpaid wages. The defendant Joseph S. Dey, III is a member of...
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FINDINGS & RULINGS ON DISCHARGE The plaintiff timely filed a complaint and subsequently a series of amended complaints, objecting to discharge under 11 U.S.C. § 727, seeking avoidance of a transfer of an interest in property under 11 U.S.C. § 544(a)(1), and seeking exception to discharge of debtor’s debt to the plaintiff under 11 U.S.C. § 523. This Court ordered a bifurcated trial on...
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MEMORANDUM OPINION 1. 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)(A), which the Court may hear and determine. II. INTRODUCTION ...
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MEMORANDUM ON MOTIONS OF BANK OF NEW ENGLAND TO DISMISS These cases come before this Court on motions by the secured creditor, Bank of New England (“BNE”) to dismiss debtors’ Chapter 11 petitions on the contention that the various debtor trusts are not partnerships, business trusts, or any other entity entitled to the protection of Chapter 11, and on the contention that the petitions were...
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*466 DECISION ON MOTION FOR AN ORDER (1) REQUIRING DEBTOR TO PAY POST-PETITION EQUIPMENT LEASE RENTS; (2) ORDERING PAYMENT OF ACCRUED POST-PETITION RENTS AS AN ADMINISTRATIVE EXPENSE; (3) REQUIRING DEBTOR TO PROVIDE ADEQUATE PROTECTION; AND (4) FIXING A TIME WITHIN WHICH DEBTOR MUST ASSUME OR REJECT EQUIPMENT LEASE Greyhound Financial Corporation (“Greyhound”) a financial institution engaged ...
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115 B.R. 674 (1990) In re Michael Frank GOODWIN, Debtor. Robert P. MOSIER, Chapter 11 Trustee, Plaintiff, v. Frank GOODWIN, Merna Goodwin, William Seidel, Carol Seidel and Captain William Seidel, Defendants. Bankruptcy No. SA 86-06166 JR, Adv. No. SA 88-0376 JR. United States Bankruptcy Court, C.D. California. June 5, 1990. *675 Sebastian D'Amico, San Diego, Cal., for defendants. Kirk S. Rense, R...
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ORDER DENYING DEFENDANT’S MOTION FOR JURY TRIAL CAME ON for consideration the Motion of Defendant for a Jury Trial and the objection thereto of Plaintiff. Upon consider *68 ation thereof, the court finds and concludes that the motion should be denied. BACKGROUND FACTS This is a lawsuit involving a claim of the debtor to collect on funds alleged to be owed pursuant t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court for trial on the complaint of the Chapter 7 trustee, and the Court having heard the testimony and examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments and memorandum of counsel, makes the following findings of fact and conclusions of law. The complaint cons...
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ORDER ON MOTION OF DEFENDANT JERRY FRANZ TO SET ASIDE DEFAULT JUDGMENT Came on for hearing the motion of Defendant Jerry Franz to Set Aside a Default Judgment under Rule 55(c), made applicable in bankruptcy by Bankruptcy Rule 7055. Upon consideration thereof, the court finds and concludes that the motion should be GRANTED. FACTUAL AND PROCEDURAL BACKGROUND This is a lawsuit seek...
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MEMORANDUM AND ORDER This matter is before the Court on the trustee’s objection to the homestead exemptions claimed by the debtors, Richard and Robert Morris. The Morrises, whose separate bankruptcy cases are being jointly administered by this Court, each claim a homestead exemption in the amount of $7,500 in their respective residences. Record title to the residences is in the name of F....
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MEMORANDUM This is a dispute between the Internal Revenue Service and a material supplier to the debtor over rights in the balance due under a construction contract. Because Tennessee law does not impose a trust on construction funds and this subcontract does not include a provision for retainage, the IRS’s lien attaches to the balance due the debtor. I. In 1987, Hayes and Sons Construction Compa...
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MEMORANDUM OPINION This matter comes before the court upon the defendant’s demand for a jury trial. BACKGROUND The debtor filed its petition for relief under Chapter 11 of the Bankruptcy Code (Title 11 U.S.C.) herein on October 21,1983. Defendant was appointed as the Chapter 11 *685 trustee herein pursuant to an order of this court entered May 21,1985. On September ...
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MEMORANDUM ON INTEREST AND PRESENT VALUE This case raises the issue of the confirmability of a plan which seeks to pay unsecured creditors a 100 percent of their claim over time when the debtor’s assets are sufficient to not only pay 100 percent but also interest. The statutory provisions are 11 U.S.C. §§ 1325(a)(4) and 726(a)(5). Sec. 1325(a)(4) 1 provides that distr...
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ORDER ON DEBTORS’ MOTION TO RECONSIDER AND CLARIFY ORDER ON OBJECTIONS TO CONFIRMATION OF AMENDED CHAPTER 13 PLAN THE MOTION TO RECONSIDER Debtors request reconsideration of this court’s order of January 22, 1990, wherein this court found that “[e]ven when the claim is bifurcated under § 506(a) ... the provisions of [11 U.S.C.] § 1322(b)(5) protect the creditor at least to the extent that the...
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MEMORANDUM OPINION The United States Trustee moves for dismissal of the bankruptcy case pursuant to section 707(b) of the Bankruptcy Code, 11 U.S.C. § 707(b). After pretrial hearings and argument, this matter now comes before the court on cross motions of the parties for summary judgment, pursuant to Bankruptcy Rules 7056 and 9014. For the following reasons, this court grants the motion of the ...
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OPINION This matter came before the court upon the objections to confirmation of the Higher Education Assistance Foundation (HEAF), Hemar Insurance Corporation (Hemar) and the Oregon State Scholarship Foundation (OSSC). The parties filed a Stipulation of Facts on January 19,1990. Based upon that stipulation and the evidence presented at trial, the court finds the following facts: Prior to enterin...
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MEMORANDUM DECISION AND ORDER These three chapter 7 cases give this court the opportunity to address an issue vigorously litigated in bankruptcy courts nationwide. The dispute is whether the debtors’ claimed exemptions in funds held in Employee Retirement Income Security Act of 1974 (ERISA) 1 qualified retirement plans can withstand objections filed by the chapter 7 trustees pu...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon a complaint seeking damages for violation of the automatic stay and to determine the dischargeability of federal income tax liabilities. A trial was held on April 11, 1990, and upon the evidence presented the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Plain...
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DECISION This matter is before the court to consider the issues raised by plaintiff’s complaint *121 to determine dischargeability, filed pursuant to 11 U.S.C. § 523(a)(2)(B). The loan in question arises out of the debtor’s response to plaintiffs mass mailing campaign. This was part of a special marketing program which plaintiff apparently implemented in order to increase its existing custome...
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DECISION ON ORDER ON DEFENDANT’S DOCUMENT TITLED, MOTION + CONTRA: PERMISSION TO FILE; SUMMARY JUDGMENT; DISMISSAL OF ACTIONS;' TO OVERRULE MOTIONS; COSTS On November 6, 1989, the debtor filed a document titled, Motions + Contras: Permission To File; Summary Judgment; Dismissal Of Actions To Overrule Motions; Costs (Doc. 359) (hereafter, debtor’s filing). Although the debtor has repeatedl...
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*654 MEMORANDUM DECISION ACTION This decision adjudicates the secured status and the priority of two lien claimants as to accounts receivable due the debtor. For the below-outlined reasons, the Court finds both lien creditors perfected their liens and the statutory federal tax lien takes priority over a consensual lien in debtor’s accounts receivable 46 days after the tax li...
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MEMORANDUM ORDER DENYING CREDITOR’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPT PROPERTY This matter came before the Court for hearing on April 30, 1990, upon Wolfdiam P.V.B.A.’s ("the creditor”) objection to the debtor’s claim of exempt property and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the witnesses, considered the arguments of co...
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MEMORANDUM OPINION This matter comes to be heard on the motion of The Boatmen’s National Bank of St. Louis (the “Bank”) for an order directing the trustee William A. Brandt, Jr. (the “Trustee”) to turn over to the Bank the sum of $17,334.00. 1 In addition, the Trustee filed a motion to strike the Bank’s surreply memorandum in support of the motion for turnover. For the reasons ...
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OPINION PROCEDURAL HISTORY On September 26, 1989, Weichert Realtors filed a motion in this court seeking to be appointed a professional real estate broker for the debtor in connection with a sale of real estate to Denise and David Shipper and for recognition of a claim for commission. No certification or affidavit of disinterestedness accompanied the notice of motion. The application...
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ORDER REGARDING CONTACTS WITH U.S. TRUSTEE The Chapter 7 trustee in this case, Edward M. Walsh, is involved in litigation with the principals of J.D. Lumber, Inc., and has obtained a judgment in federal district court against them for, among other things, RICO violations. The matter is now on appeal. While the lawsuit was pending J.D. Lumber, wearing the mantle of a creditor in the case, requ...
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MEMORANDUM OPINION On October 18, 1989, this matter came before the Court on the motion of the plaintiff, Broadcast Music, Inc. (“BMI”), for a summary judgment in its favor and against the Debtor, John J, Elms, Jr., pursuant to Bankruptcy Rule 7052. Considering the statements of counsel, the memorandum and exhibits filed, and the applicable law, the Court now enters the following Memorand...
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MEMORANDUM OPINION On June 28, 1989, this matter came before the Court on the Objections of David V. Adler, Trustee, and the Federal Savings and Loan Insurance Corporation to exemptions claimed by John and Arlene Mmahat. At the request of the parties, the hearing was continued without date pending the Debtors’ filing of a revised list of exempt property. Considering the memoranda filed, the rec...
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MEMORANDUM OPINION The Debtors have filed a plan under Chapter 13 of the United States Bankruptcy Code that would cure a default under their house mortgage and reinstate the original terms of that mortgage. The mortgagee, Carteret Savings Bank, objects to confirmation of that plan and requests relief from the automatic stay on the ground that the Debtors have no rights to cure the mortgage defa...
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MEMORANDUM This matter is before the Court upon the motion of Texas Commerce Bank — Beaumont (TCB) to dismiss this Chapter 12.pro-ceeding. The Creditor has contested the eligibility of the Debtor to file for relief under Chapter 12. FACTS Debtor filed his petition under Chapter 12 of Title 11 on December 27, 1989 and an amended Chapter 12 statement on February 2, 1990. TCB asked this Court ...
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MEMORANDUM OPINION I.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)(G) and (K), which the Court may hear and determine. II. PROCEDURAL...
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OPINION Before the court is the chapter 13 trustee’s motion to convert this case to chapter 7 pursuant to 11 U.S.C. § 1307 on the ground that debtor is ineligible for relief under chapter 13 because her noncontin-gent, liquidated, unsecured debts exceed the $100,000.00 limit set forth in 11 U.S.C. § 109(e). 1 As we find that disputed debts of a contractual nature are liquidated...
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MEMORANDUM AND ORDER ON PAROL EVIDENCE RULE Familiarity with this court’s Memorandum, and Order on Objections to Claims, dated June 26, 1990, is assumed. Robert W. Raddatz, the plan facilitator, and the general unsecured creditors’ committee object to MRMC’s offer of testimony as to the meaning of certain provisions of the confirmed Fourth Amended Joint Plan of Reorganization (...
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MEMORANDUM AND ORDER ON MOTIONS TO DISMISS The defendants move to dismiss these adversary proceedings under Rule 12(b)(6) Fed.R.Civ.P., made applicable here by Bankruptcy Rule 7012(b). BACKGROUND On November 10, 1988, the defendants filed petitions under chapter 11 of the Bankruptcy Code. On April 6, 1989, an order entered converting their cases to chapter 7. On September 27, 1989, the plai...
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MEMORANDUM OPINION Metro Communications, Inc. (“Debtor”), acting by and through its court-authorized Unsecured Creditors Committee, has brought this adversary action pursuant to 11 U.S.C. § 547(b), in which it seeks to avoid certain payments to Defendant Pacific-10 Conference (“PAC-10”) arising out of an agreement concerning telecasting rights for the 1984 college football season. De...
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MEMORANDUM OF DECISION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The issue raised by defendant’s motion for summary judgment concerns the perplexing question of whether a reaffirmation agreement is valid when the debtors don’t attend the hearing conducted for that purpose. We hold that where the debtors are represented by an attorney who makes the proper explanation and d...
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MEMORANDUM OPINION AND ORDER This matter comes on before the Court pursuant to the July 21, 1989 Pre-Trial Conference on Plaintiff/Debtors Russell Donald Bryant and Leona Kathleen Bryant’s Complaint and the November 28, 1989 hearing on the Defendant United States of America’s Motion for Summary Judgment. The plaintiff debtors appeared by and through their attorney Maurice Soltz. The Unite...
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MEMORANDUM AND MODIFIED ORDER ON OBJECTIONS TO CLAIMS 1 I. On July 20, 1983, Raymark Corporation, Raymark Industries, Inc., Raymark Formed Products Company, and Milford Rivet and Machine Company of Delaware (hereinafter collectively referred to as “Raymark”) entered into an agreement with RBS Industries, Inc. (“RBS”), under which RBS agreed to purchase certain assets from Ray...
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MEMORANDUM OPINION AND ORDER REQUIRING TURNOVER OF PROPERTY OF THE ESTATE AND DENYING EXEMPTIONS The adversary action before the Court is the Chapter 7 Trustee’s Complaint for turnover and objection to exemptions. The Court has jurisdiction over this adversary action pursuant to 28 U.S.C. § 1334(b), and may enter final orders in this core proceeding pursuant to 28 U.S.C. § 157(...
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This Chapter 7 adversary proceeding is before the Court pursuant to a trial on the merits of trustee Susan Uecker’s Complaint for breach of contract, declaratory judgment, and sanctions for violation of the automatic stay. The Court has core jurisdiction over this matter pursuant to 28 *182 U.S.C. § 157(b)(2)(A), (N) and (0). This action involves a $100,000 earnest money-deposit wh...
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OPINION It is very tempting to render a final ruling in a dischargeability proceeding on a motion for summary judgment, particularly when, as here, the parties each submitted volumes of several hundred pages of materials in reference to the summary judgment motion itself, promising that we will be favored with even more submissions and faced with a long trial if the motion is denied. Howe...
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*43 MEMORANDUM OPINION Before the court is a Motion to Avoid Lien filed by Debtor to which a Response coupled with a Motion to Terminate Automatic Stay were filed on behalf of American General Consumer Discount Company (hereinafter AGCDC). On April 17, 1984, the Debtor borrowed the sum of $7,700.00 at 17% per annum from the Kayak Manufacturing Company to finance the purchase of a Kayak swimmi...
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ORDER This matter is before, the Court on the motion of Tri-Leasing Corp. (hereinafter referred to as “Tri-Leasing”). to lift the automatic stay or alternatively to require Fulton Textiles, Inc. (hereinafter “Debtor”) to assume or reject its equipment lease, filed on February 16, 1990. This Court held a hearing on the motion on March 27, 1990, at which it requested that the parties submit...
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ORDER On this 1st day of June, 1990, a Motion to Transfer filed by Defendant Northwest National Bank (“Northwest”) (Docket Entry No. 7) with Brief in Support (Docket Entry No. 8), together with an Objection to Motion to Transfer filed by the Plaintiff (Docket Entry No. 13) and Response to the Objection to the Motion filed by Defendant Northwest (Docket Entry No. 17) with Brief in Support (Docke...
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MEMORANDUM OPINION Debtor Kroh Brothers Development Company, renamed the Kroh Operating Limited Partnership (“Kroh”) after confirmation of its Chapter 11 plan, sued defendant National Fidelity Life Insurance Company (“NFL”) to recover, pursuant to 11 *1013 U.S.C. §§ 547 and 550, four alleged preferential transfers made by Kroh to NFL within 90 days and one year before the dat...
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MEMORANDUM OPINION The Debtor filed a case under Chapter 13 of the Bankruptcy Code on June 26, 1989, listing General Motors Acceptance Corp. as an unsecured creditor for a deficiency balance after foreclosure on a vehicle and stating that the creditor claimed a $4,800.00 amount. On October 5, 1989, the creditor filed an unsecured proof of claim for $4,974.38 which, contrary to the requirements of...
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DECISION This case was filed under Chapter 11 of the United States Bankruptcy Code on May 31, 1984. On May 4, 1988, the court confirmed debtors’ proposed plan. Confirmation operated as a discharge of debtors’ pre-petition obligations. 11 U.S.C. § 1141(d)(1). Since confirmation binds both debtors and creditors to the terms of a confirmed plan, it effectively replaces debtors’ pre-petition ...
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MEMORANDUM OPINION Plaintiff Cornwell Quality Tools (“Corn-well”) filed a complaint objecting to dis-chargeability of debts under 11 U.S.C. § 523(a)(2)(A) and (B) (the “Complaint”). The Complaint alleges that debtor, Joseph L. Rodgers (“Rodgers” or “debtor”), used a false financial statement in order to become a dealer for Cornwell. The Complaint further alleges that Rodgers committed “actual fra...
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MEMORANDUM OPINION The matter before this court is a Motion for Summary Judgment pursuant to Bankruptcy Rule 70561 brought by the United States of America by and through its agency, the United States Small Business Administration (hereinafter “Plaintiff”) against Thomas Earl Davis (hereinafter “Defendant”). Plaintiff’s Motion for Summary Judgment came on for hearing on February 16, 1990. After he...
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*318MEMORANDUM OPINION Before the court is a Motion to Reconsider the court’s order of February 13, 1990, granting a lien avoidance motion filed by the Debtor pursuant to § 522(f) of the Bankruptcy Code. Bennett Supply Company, Inc. (hereinafter “Creditor”) obtained a judgment against Ulysses Robinson in the Superior Court of Lee County, Georgia, on August 29, 1988. On May 10, 1989, Mr. Robinson f...
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DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The defendant McCarthy moves for summary judgment adjudicating that a house he holds as Chapter 7 trustee of the estate of Sandra B. Dockery need not be returned to a decedent’s estate whence the house was improperly distributed to Dockery. The motion will be granted. The plaintiff Mann is successor personal representative of the decedent’s...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW PROCEDURAL POSTURE This matter comes before the Court on the trustee’s objection to the Debtor’s amended claim for an exemption of an Individual Retirement Account (IRA) under WIS.STAT. 815.18(31). The Court has jurisdiction to decide this case under 28 U.S.C. § 157(b)(2)(B). James D. Sweet and William J. Rameker of Murphy ...
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RULING RE: DEBTOR’S MOTION FOR INTERIM RELIEF FROM CERTAIN PROVISIONS OF A COLLECTIVE BARGAINING AGREEMENT The matter before the Court is the Motion of Cedar Rapids Meats, Inc., d/b/a Farmstead Foods (“the Debtor”), for Interim Relief from Certain Provisions of a Collective Bargaining Agreement (“the Motion”). The Motion is opposed by the Pension Benefit Guaranty Corporation (“PBGC”), the...
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*225 MEMORANDUM OF DECISION FACTS Debtors filed a voluntary petition under Chapter 13 on January 5, 1990. On January 24,1990, they filed a Motion to Convert to Chapter 7 with the Court pursuant to Section 1307(a) of the Bankruptcy Code. In their Motion, they represented that the plan they had filed with the Court was not feasible or practical. The Court entered an Order of C...
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MEMORANDUM OF DECISION The question at issue is whether a transfer effected by a Maryland wage garnishment lien, for purposes of the 90 day preference period under 11 U.S.C. § 547(b)(4)(A), occurs when the wages are earned, when they are payable, or when they are paid. Debtor, Susan Lewis, has filed a Complaint to Avoid and Recover Preferential Transfer under 11 U.S.C. §§ 522(h), 547(b) a...
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MEMORANDUM OPINION THIS MATTER came on for trial on February 26, 1990 upon the complaint of the trustee to avoid a preferential transfer and setoff pursuant to 11 U.S.C. §§ 547, 545 and 553, and seeking treble damages and attorney fees for unfair and deceptive trade practices pursuant to N.C.Gen.Stat. §§ 75-1.1, 75-16, and 75-16.1. Elisabeth S. Petersen and Susan Barco appeared as counsel for t...
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MEMORANDUM OF DECISION AS TO MOTIONS TO DISMISS The issues raised by Debtors’ motions to dismiss involve whether Debtor can discharge personal liability for breaches of Maryland lien trust laws by his construction company. Motions to dismiss in these four adversary proceedings are consolidated for purposes of this opinion. Each proceeding was commenced by a creditor of Lawrence W. Ma...
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ORDER ON MOTION FOR SANCTIONS AGAINST DEBTOR’S/DEFENDANT’S ATTORNEY THIS IS the aftermath of a long and bitter fight between Barnett Bank of Tampa, N.A. (Barnett), and Brett C. Muscatell (Debtor) which culminated in the entry of a Findings of Fact, Conclusions of- Law and Memorandum Opinion and a Final Judgment in the above-captioned adversary pro *297 ceeding. The Final Judgment was in favor...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION THIS IS a Chapter 7 liquidation case and the matter under consideration is an Objection to Claim of Exemption filed by the Trustee. It is the Trustee’s contention that certain individual retirement accounts (IRA’s) established by Paul M. Horath and Donna Faye Horath (Debtors) were established by the Debtors with the specific intent to def...
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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 Complaint filed by the Deere Credit Services, Inc. (Deere) objecting to dischargeability of a debt. Deere alleges in its complaint that the debt owed by John W. Thomas (the Debtor) to Deere in the amount of $5,234.80 should be excepted from the overall...
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MEMORANDUM OPINION West Suburban Bank of Darien filed an adversary complaint to revoke the Debtor’s discharge under 11 U.S.C. § 727(d). At the trial, the bank amended its complaint to include allegations that the debt owed to it should not be discharged pursuant to 11 U.S.C. § 523(a)(2). Because the relief sought by the bank is time-barred, judgment is entered for the Debtor. The Debt- or...
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ORDER ON MOTION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSE BY THE PYRAMID COMPANIES THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion for Allowance of Administrative Expense filed by the Pyramid Companies (Pyramid). Pyramid has requested allowance of an administrative expense for unpaid rent allegedly incurred by Tammey Jewels, Inc. (Debtor). The administrat...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is the second major litigation in this confirmed Chapter 11 case, and the matters currently under consideration are the claims set forth in a seven-count Amended Complaint filed by Captran Creditors Trust (CCT). The Complaint was originally filed against North American Title Insurance Agency, Inc. (NATIA), George Mills (Mill...
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ORDER On August 21, 1986, the debtors, Ernest and Norma Jean Thompson filed a voluntary petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. Hon. Albert R. Hanna (Hanna) prepared the petition and executed it as attorney for the debtors. On May 26, 1987, an order was entered confirming the debtors’ chapter 13 plan. The plan provided, generally, for p...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 11 case and the matter under consideration is a Motion for Summary Judgment filed by the Defendant and Counterclaimant (Debtor). In its Motion, the Debtor alleges that there are no genuine issues of material fact in this adversary proceeding, and the Debtor is entitled to Judgment as a matter of law in its favor. The Court has co...
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ORDER The parties have requested that the Court initially determine the issue of whether an individual creditor (the Debt- or’s former landlord) has standing to pursue a claim under 11 U.S.C. § 506(c) in this Chapter 7 case. The facts pertinent to this issue are as follows: This case is a case under Chapter 7, having been converted from a Chapter 11 Reorganization case which had been commence...
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MEMORANDUM OPINION ITT Financial Services, Inc. (hereinafter ITT) filed its proof of claim in this proceeding as a secured claim. The Trustee has objected thereto. The Honorable Karen M. See, on December 13, 1989, allowed ITT 10 days to file an amended claim. This was accomplished by ITT and it is this amended, allegedly secured claim that the Trustee suggests should be allowed as unsecur...
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MEMORANDUM OF DECISION I. ISSUE Security Financial Corporation (SFC), owned and operated by the debtor, Robert' Irving Dowd, contracted to render financial and investment advisory services for an annual fee of $3,000.00 to Dr. Walter D. Fonfara (Fonfara). In this proceeding, *27 Fonfara contends that a loan he made during the term of the contract to SFC at the importuning of the debtor no...
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OPINION The United States of America, acting through the Farmers Home Administration (“FmHA”), appeals the bankruptcy court’s confirmation of a Chapter 12 plan which reduced FmHA’s allowed secured claim by the costs of foreclosure from the fair market value of the real property and which provided for an interest rate less than the fair market rate on FmHA’s allowed secured claim. We rever...
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ORDER DENYING TRUSTEE’S OBJECTION TO EXEMPTION I. INTRODUCTION The matter before the Court is the Chapter 7 Trustee’s objection to the debtors’ exemptions. The sole issue is whether a Missouri resident who is beneficiary of an ERISA pension plan is entitled to claim any portion of his benefits under such plan as exempt. A majority of the courts considering this question have held tha...
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DECISION ON ORDER GRANTING DECLARATORY JUDGMENT, INJUNC-TIVE RELIEF AND SUMMARY JUDGMENT 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' administration of the estate, (B) ...
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MEMORANDUM OPINION John C. Johnson, f/d/b/a CJ’s Family Pride, and Velitta C. Johnson, Debtors, filed a joint petition under Chapter 13 of the Bankruptcy Code on May 25, 1989. The Small Business Administration (“SBA”) filed a proof of claim for a secured claim in the amount of $92,008.72 on June 26, 1989. Debtors filed an “Objection to Claim” on March 7, 1990. The objection came on for hearing on...
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DECISION AND ORDER The above captioned case was instituted by the filing of an involuntary Chapter 7 petition by Robert Devine (“Devine” or “petitioner”), the sole petitioner. Devine claims to be a creditor by reason of a default judgment from the New York State Supreme Court in the amount of $20,050, of which $13,050 remains unpaid, together with accrued interest. JoAnn Morris (“Mor...
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DECISION ON ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 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 administration of the estate and (O) — other proceedings af...
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DECISION ON ORDER DENYING MOTION TO DISMISS AND GRANTING SUMMARY JUDGMENT 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 pursu *97 ant to 28 U.S.C. § 157(b)(2)(A) — matters concerning the administration of the estate, (E) — orders to tur...
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MEMORANDUM OPINION This matter is before the Court pursuant to a Stipulation entered into by Debtors and The Committee of Unsecured Creditors (“Committee”). Debtors’ Amended Plan of Reorganization (“Plan”) makes no provision for distribution to creditors of any recovery which may be realized from Debtors’ contemplated tort action. The Committee has objected to the Plan on the basis t...
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MEMORANDUM OPINION Before the Court is a Motion For Approval Of Employment, nunc pro tunc For The Period Of Time From December 2k, 1981 Through October J, 1989 filed by Zubair S. Mansori, Esq., Joseph J. Bernstein, Esq., and Bernstein and Bernstein, P.C., attorneys for Debtor-in-Possession Hercules Service Corporation (“Debtor”). Movants are cognizant of In re Arkansas Co., 798 F.2d 645...
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DECISION ON ORDER: (1)GRANTING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, (2)GRANTING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, (3) SETTING PRETRIAL CONFERENCE AND (4) REQUIRING FILINGS This proceeding, which arises under 28 U.S.C. Section 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984,...
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MEMORANDUM OF DECISION RE APPLICATION OF DEBTOR AND DEBTOR IN POSSESSION TO EMPLOY LEVENE & EISENBERG AS COUNSEL I. INTRODUCTION A. The Debtors On April 13th, 1990 the debtor and debt- or in possession in this Chapter 11 case, *210 Hathaway Ranch Partnership, a California Limited Partnership (“Hathaway”), commenced this bankruptcy case by filing its vol...
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OPINION I. Introduction Before the Court are cross-motions for summary judgment filed by defendants Lincoln Alvarado, Patrician Associates, Inc., and LPC Alvarado Phase II, and by chapter 11 trustee and plaintiff Edward M. Walsh. In this preference action, Walsh seeks to avoid and recover several prepetition rent payments made by debtor LCO Enterprises (“LCO”). Defendant...
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OPINION ON MOTION TO DISMISS The University Federal Savings Bank has moved to dismiss this Chapter 11 case on the ground that it is a bad faith filing. *240 PACTS In 1984, the Appels, Jardines and Ru-peiks formed a joint venture and purchased as cotenants property in Seattle known as “Central Heights”. The acquisition was out of a Chapter 11 case and from John Walton. T...
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OPINION AND ORDER ON OBJECTIONS TO EXEMPTIONS These matters came before the Court in the above three cases, John Edwin Starkey (“Starkey”), Delbert L. and Carole Ann Richardson (“Richardson”) and Patrick V. Daily (“Daily”), (collectively referred to as “Debtors”), on objections filed by the respective trustees to each Debtor’s claim of exemptions. In each case the Debtors have scheduled, ...
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MEMORANDUM OF DECISION The matter now before the court in this Chapter 13 case is the debtor’s objection to a claim of the Internal Revenue Service. Prior to filing his bankruptcy petition, the debtor, Wallace Tripplett, had been assessed by the IRS with a penalty for nonpayment of withholding taxes; during the bankruptcy proceedings, the IRS filed a claim against the Tripplett estate, ba...
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OPINION Cross-motions for summary judgment present the question of whether a Chapter 11 debtor should be compelled to execute documents necessary to draw upon a letter of credit. I hold that the debtor should not be so compelled because the obligation to provide the documents creates a claim which is allowable and dischargeable in bankruptcy. Prior to this Chapter 11 proceeding, BSC ...
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MEMORANDUM This memorandum is written to clarify the Court’s ruling in denying the Debtor’s motion for extension of time to assume or reject the Lease Agreement dated July 23, 1987 between Joseph Shapiro as Landlord and Perfectlite Co. and Howrah Industries, Inc. as Tenant (the “Lease”). The Landlord filed an objection to the motion including a brief and a statement styled “Declaration of Josep...
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MEMORANDUM OPINION The matter before the Court in this Chapter 11 proceeding is a Motion for Abstention or for Dismissal for Lack of Jurisdiction or for Change of Venue. Southwinds Associates, Ltd. (Debtor), filed its voluntary petition for relief under Chapter 11 on June 6, 1989, which action, Debtor alleges, was necessitated by the harmful conduct of the Defendant, James E. Reedy (...
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*924 MEMORANDUM ON DEBTOR'S MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL On December 22, 1988 Debtor, William J. McLaren, filed a petition for reorganization under chapter 11 of the Bankruptcy Code. The case was converted to chapter 7 on January 22, 1990 on the motion of National City Bank when it appeared that there was no realistic prospect for reorganization. On March 21, 1989 pla...
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DECISION ON ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 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, is determined to be a core proceeding pursuant to 28 U.S.C. *102 § 157(b)(2)(I) — determinations as to the dis-chargeability of particular debts. This proceeding is before t...
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On March 20, 1989, the Chapter 7 debtors moved pursuant to subdivisions (a) and (d) of section 506, Title 11 U.S.C., to avoid the liens of four judgment creditors on non-residential real estate which they owned. It was claimed that the property was overencumbered and that the judgments were not supported by value. At a hearing held on April 10, 1989, the motion was denied as not authorized by l...
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OPINION A. INTRODUCTION On June 14,1990, RESOLUTION TRUST CORPORATION (“RTC”), as Receiver for the Plaintiff in this proceeding, NASSAU SAVINGS AND LOAN ASSOCIATION (“the Plaintiff”), filed a Motion for Partial Summary Judgment (“the Motion”) pursuant to Bankruptcy Rule (“B.Rule”) 7056 seeking judgment in its favor with respect to Count VII of the Complaint in the above-captioned pro...
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STATEMENT OF THE CASE Wall Tire Distributors, Inc., Debtor, Plaintiff, filed a petition under Chapter 11 of the Bankruptcy Code on September 25, 1989. Plaintiff continues to operate its business as debtor in possession pursuant to sections 1107 and 1108 of the Bankruptcy Code. 1 Plaintiff filed an adversary proceeding against Donald Wright, Defendant, on March 27, 1990. The comp...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW PROCEDURAL POSTURE This case comes before the Court pursuant to Bankruptcy Rule 7001 on a complaint filed by Joan Stolp (“Plaintiff”) against Harvey L. Stolp (“Debtor”) for a declaratory judgment excluding the Plaintiff’s interest in the Debtor’s military pension from the bankruptcy estate under 11 U.S.C. § 541 or excepting...
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DECISION RE MOTION TO REOPEN The debtor moves the Court to reopen this no-asset case, closed in 1987, “for the purpose of adding the creditor, Amoco Oil Company,” apparently based on the erroneous belief that Amoco must be added to the list of creditors for its claim to be discharged by the discharge granted the debt- or under 11 U.S.C. § 727. The debtor seeks to reopen the case without paying ...
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MEMORANDUM OPINION On February 26, 1990, this court entered an order denying Central Fidelity Bank’s motion for relief from the codebtor stay provided under 11 U.S.C. § 1301. CFB has now requested the court, pursuant to Bankruptcy Rule 7052 and Rule 52(b) of the Federal Rules of Civil Procedure, to amend its order based upon a factor which was not presented to the court at the hearing on ...
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MEMORANDUM OPINION Summary These adversary proceedings involve the dischargeability under 11 U.S.C. § 523(a)(5) of two monetary judgments awarded in divorce litigation against the debtor in favor of Bonnie Macys, his former spouse: (1)an award in the amount of $112,270.00 under the equitable distribution statute of Virginia,1 and (2) an award for Ms. Macys’ attorney fees in the amount of $5,120...
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115 B.R. 661 (1990) In re John Frederick ANWILER, Debtor. Gregory PATCHETT and Kathleen Griffin, Appellants, v. John Frederick ANWILER and Timothy Cohelan, Chapter 7 Trustee, Appellees. BAP No. SC-89-1504-VAsJ, Bankruptcy No. 88-21120-B7, Adv. No. C88-0321-B7. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted October 18, 1989. Decided July 12, 1990. *662 Charles ...
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OPINION AND ORDER This matter comes before the Court on a motion to prohibit use of cash collateral, under the provisions of 11 U.S.C. § 363(e), filed by Riparian Investment Associates, a Virginia limited partnership (Riparian). The Court after hearing arguments took the matter under advisement and granted counsel leave to file briefs on the issue before the Court. Strangely, the issue is...
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MEMORANDUM OF DECISION The Court took under advisement an objection by the Chapter 7 Trustee to the *228Debtors’ claim of an exemption in 400 video cassette tapes as “tools of the trade” under the applicable Oregon statute.1 The tapes are used by the Debtors in their video tape rental business.2 Little Oregon case law exists to assist the Court in resolving this issue. However, language found in o...
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MEMORANDUM OPINION ON DEBTOR’S ELIGIBILITY TO FILE CHAPTER 13 On October 5, 1989, Alice Faye Tomlin-son (“Debtor”) filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code. Her chapter 13 Statement listed total unsecured debts in the amount of $111,415. At the hearing on confirmation of the Debtor’s chapter 13 plan, the chapter 13 trustee objected to confirmation on t...
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ORDER The Movant, the Blueville Bank of Grafton, has filed with this Court a Motion for Recognition of Post-Petition Liens and a Request for Allowance and Payment of Administrative Expenses, nunc pro tunc. A hearing was held in this matter on April 26, 1990, after which the Court issued an Order on June 5, 1990, setting forth findings of fact in this matter and ordering all par...
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DECISION GRANTING MOTION FOR SUMMARY JUDGMENT At issue in this adversary proceeding is whether section 1146(c) of the Bankruptcy Code, 11 U.S.C.A. § 1146(c) (West Supp. 1990) (Section 1146(c)) exempts a debtor in possession from payment of the tax imposed on the gains derived from the transfer of real property within the State of New York pursuant to N.Y.Tax Law § 1441 (McKinney 1987) (th...
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MEMORANDUM OPINION ON DEBTOR’S OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE . In this case we are called upon to decide whether Michael J. Premo (“Debtor”) bears financial responsibility for the unpaid withholding taxes of two companies in which he was the principal equity owner. The Debt- or has objected to the proof of claim filed by the Internal Revenue Service (“IRS” or “Government”...
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MEMORANDUM OPINION The issue of the objection of creditor Third National Bank of Sedalia (hereinafter Bank) to the confirmation of debtor’s plan turns on a singularly narrow issue, i.e., is a mobile home trailer still personal property or has it become real property for 11 U.S.C. § 1322(b)(2) purposes. A brief synopsis of the facts reveals that debtor borrowed $11,800.00 from the Bank in 1986. ...
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ORDER In this Chapter 7 case, hearing on Objections filed by the Trustee, Compass Group, and First Interstate Bank of Great Falls, Montana, to the claim of exemptions by Debtor was held on April 26, 1990. The parties have submitted Briefs in support of their respective positions and the matter is now ready for decision. At the conclusion of the hearing, the Court by bench ruling denied th...
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MEMORANDUM DECISION Vanderpark Properties, Inc. (“Vander-park”) is again before the court pursuant to a decision by the Ninth Circuit Court of Appeals reversing this court’s decision that the trustee of Windmill Farms, Inc., (“WFI”) could assume a lease of Vanderpark’s commercial property. See, In re Windmill Farms, Inc., 841 F.2d 1467 (9th Cir.1988). In its reversal and remand...
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MEMORANDUM OPINION AND ORDER ON MOTION FOR STAY PENDING APPEAL On April 20, 1990 the Court entered its “Order Confirming Third Amended Joint Plan of Reorganization” in this case. 114 B.R. 813. That order was timely appealed, and appellants filed a motion for stay of the order pending appeal. The Court heard all parties present on June 8, 1990 concerning this motion and ruled from the benc...
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MEMORANDUM OPINION Pending is Central Bank of Lebanon’s Motion to Determine Secured Status and Priority. The issue is whether a mistakenly recorded deed of release should be reformed to permit Central Bank to have a secured claim superior to that of other claimants to the property where the trustee asserts the status of a bona fide purchaser of real property pursuant to 11 U.S.C. § 544(a)...
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OPINION AND ORDER This matter comes before the Court on the complaint of John and Mary Vaughan, f/t/a Beach Pedaler, (Vaughans) to determine, under 11 U.S.C. § 523(a)(6), the dis-chargeability of the debt of Robert and Patricia Murray, (debtors). The issues are straightforward: 1.) Was there a conversion of the Vaughans’ property by the debtors and, if so, was the conversion willful ...
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AMENDED MEMORANDUM DECISION AND ORDER On June 7, 1989, Edward J. Stanley, the Trustee herein, filed his Final Report and Account of Trustee, Application to Determine Priorities, to Pay Expenses of Administration, and To Make Disbursements to Creditors. However, no date was set for any hearing. On March 13, 1990, the Office of the United States Trustee filed an objection to the Trustee’s Final Rep...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE: TAX EXCHANGE DOCUMENTS On April 9, 1990, a hearing was held on the “Motion Re Summary Judgment Concerning Tax Exchange Documents and for Constructive Trust” filed by Aki Mizushi-ma, Central Realty Ltd. and Ichizo Nishio (“Movants”) on December 22, 1989. Present at the hearing were Harrison P. Chung, Esq. and Presley W. Pang, Esq. for Movants, and...
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MEMORANDUM OF DECISION This chapter 7 case was converted from a case under chapter 11 of Title 11 U.S.Code. The United States Trustee has filed a proof of claim with the chapter 7 standing trustee for $150.00 as quarterly fees due the United States Trustee while the debtor was in a chapter 11 proceeding under the provisions of 28 U.S.C. § 1930(a)(6). The standing chapter 7 trustee has objected ...
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ORDER-TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION On April 19, 1990, a hearing was held on Trustee’s objection to Debtor’s claim of exemption. The following attorneys appeared on behalf of their respective clients: Lloyd R. Bergantzel for Debtor and C.R. Hannan as Chapter 7 Trustee. At the conclusion of said hearing, the Court took the matter under advisement. The Court considers t...
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DECISION Giuseppe Galvano, (“Galvano” or “the Debtor”), the debtor herein, seeks to have this Court review and determine the validity and legality of certain sales and use taxes assessed by the New York State Department of Taxation and Finance (“Department of Taxation”). The instant proceeding comes before this Court on a mo *369 tion pursuant to Section 505(a) of the Bankrup...
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DECISION ON ORDERS GRANTING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT These related adversary proceedings, which arise under 28 U.S.C. Section 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district on July 30, 1984, are determined to be core proceedings pursuant to 28 U.S.C. Section 157(b)(2)(A) — matters concerning the administration of the es...
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MEMORANDUM OPINION AND ORDER ON MOTION OF COMMODITY CREDIT CORPORATION FOR RELIEF FROM STAY TO PERMIT SET-OFF The Commodity Credit Corporation, (“CCC”) filed a motion seeking relief from the automatic stay in order to permit CCC to setoff a debt owed to the debtor by CCC against a debt owed by the debtor to the United States Department of Agriculture. It is stipulated that the debtor owes a p...
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MEMORANDUM OF DECISION The Court has before it three motions in this Chapter 7 case. First, Carol Gilbert, *777 as custodian for certain minor shareholders of the Debtor-corporation (the “Gilberts”), has moved to dismiss the case. Second, the Trustee has filed a motion to temporarily operate the Debtor’s ranching operation on a limited basis pending liquidation of the livesto...
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MEMORANDUM DECISION ON MOTIONS TO DISMISS AND CROSS-MOTIONS FOR SUMMARY JUDGMENT The central dispute which must be determined by this Court is whether certain surety bonds issued pursuant to the worker’s compensation self-insurance program of the Commonwealth of Pennsylvania, were in effect when the principals filed for bankruptcy protection. *891BACKGROUND On July 17, 1986 and thereafter LTV Ste...
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MEMORANDUM OPINION ON MOTION FOR DETERMINATION OF TAX LIABILITY Pending before the Court is Debtors’ amended motion for determination of tax liability and for an order voiding tax liens placed by the State of West Virginia. Debtor David Bowen is a responsible officer of the following five corporations: Bowen Land Development Co., Inc.; Bowen Pharmacy of Kanawha City, Inc.; Bowen Reed Furn...
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MEMORANDUM OPINION AND ORDER HISTORY OF THE CASE The Complaint herein was filed December 21, 1987, seeking declaratory and in-junctive relief against approximately 68 individuals and organizations. The Complaint. alleges, basically, that the Defendants (hereinafter referred to as “CPR”) filed a civil action in the U.S. District Court for the District of Puerto Rico against the Plaintiffs (hereina...
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MEMORANDUM OPINION AND ORDER Deemer Steel Casting Co., Inc. asserts it is entitled to a recovery against Lebanon Foundry and Machine Company for breach of an oral agreement, or alternatively, under quasi-contract. The dispute centers about a purported post-petition sale by Deemer to Lebanon of estate property. As such, it is a core proceeding and final judgment may be entered by this cour...
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DECISION ON ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT This proceeding, which arises under 28 U.S.C. Section 1334(b) in a case referred to this court by the Standing Order of Reference entered in this district, is determined to be a core proceeding pursuant to 28 U.S.C. Section 157(b)(2)(A) — matters concerning the administration of the estate, (C) counterclaims by the estate ...
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ORDER GRANTING INJUNCTION AND DECLARATORY JUDGMENT This matter comes on for hearing on June 26, 1990 upon the Plaintiff’s Complaint for an injunction and for declaratory judgment. The parties submitted briefs on the issues before the Court and the matter was taken under advisement. The instant ruling is made based upon the issues presented in the briefs to the Court. FINDINGS OF FACT 1. On ...
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DECISION ON ORDER ENTERING DECLARATORY JUDGMENT AND GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT This proceeding arises in a case referred to this court by the Standing Order Of Reference entered in this district on July 30, 1984 and 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) — ...
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MEMORANDUM AND ORDER ON MOTION TO PROHIBIT USE OF AND SEQUESTER RENTS Coast Federal Bank, Federal Savings Bank, f/k/a Coast Savings and Loan Association (“Coast”), moves for an order prohibiting the debtor from using certain rents, directing the debtor to sequester those rents, and declaring Coast to have a perfected first-priority security interest in those rents. I. On March 3...
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OPINION AND ORDER Before the Court is a Complaint of Linda M. Rooker (hereinafter “Plaintiff”) requesting determination of dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(5) of the Bankruptcy Code. For the reasons provided herein, we find the debts subject to the Complaint are dischargeable. The facts are as follows. On or about November 12, 1987, plaintiff filed a divorce action wh...
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MEMORANDUM OF DECISION ON TRUSTEE’S OBJECTION TO AMENDMENT TO EXEMPTIONS This matter 1 is before us on Trustee’s objection to Debtors’ proposed amendment and claim of exemptions. Debtors move to amend Schedules B-2, B-3, and B-4 to include their interest in pre-petition auction proceeds as exempt property. Debtors also claim as exempt two bank accounts and three vehicles 2 not originally li...
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MEMORANDUM AND ORDER ON MOTIONS TO DISMISS AND TO STRIKE I. On January 24, 1990, the debtors filed a petition under chapter 7 of the Bankruptcy Code. On May 7, 1990, the plaintiffs commenced the instant adversary proceeding, seeking a determination that the debt owed to them by the defendant is nondischargeable and a money judgment against the defendant for $444,300.00. The complaint alleges ...
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MEMORANDUM The matter being considered here is the Plaintiff/Debtor’s Amended Complaint to set aside a foreclosure as a fraudulent conveyance and to recover the value which the Debtor believes to be the excess between the amount owed and either the actual value of the real property, or the amount bid at foreclosure. On April 21, 1989, the Debtor filed a First Amended Complaint in two counts. ...
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MEMORANDUM OF DECISION ON MOTION TO DISMISS This proceeding 1 arises, like the ancient Egyptian Phoenix from its ashes, out of an adversary proceeding (Treadway I) brought by Debtor’s Chapter 7 trustee. Instead of landing in Bankruptcy’s nest, this proceeding flies to another jurisdiction. In Treadway I we denied the Chapter 7 trustee’s requested decl...
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MEMORANDUM OF DECISION ON § 363(h) MOTION Trustee objects to Debtor’s claim 1 that real property Debtor owns jointly as tenants by the entirety with a non-debtor spouse is exempt from the sale provisions of 11 U.S.C. § 363(h). Under the facts of this contested matter, we overrule Trustee’s objection. We hold that based on Vermont case and statutory law a spouse’s interest in an...
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FINDINGS AND CONCLUSIONS This matter is before the Court upon the Plaintiff’s complaint in two counts to determine the status of his claim in this Chapter 13 ease, and to determine the extent of the Debtors’/Defendants interest in a parcel of real property. The matter was submitted to the Court on a Joint Stipulation of Facts and separate Memoranda of Law. This matter is a core proceeding pursuant...
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MEMORANDUM OF DECISION GRANTING RELIEF FROM AUTOMATIC STAY Movants seek relief from the automatic *88 stay 1 to apply a credit against an amount due them from Kelton Motors, Inc. (Debt- or). Trustee objects and claims Movants were not properly perfected under Article Nine of Vermont’s UCC, 9A Vt.Stat.Ann. §§ 9-101, et seq., because the “all inventory” descriptions ...
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ORDER DENYING OBJECTION TO EXEMPTION This contested matter1 is before us on Ashline’s objection to Debtor’s claimed homestead exemption in proceeds of a promissory note originally made payable to Debtor from J.T. Martell (Martell). Ash-line claims a State Court trustee process judgment against Martell divested Debtor of any interest in the note. We hold the note is property of the estate and not s...
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OPINION This is a classic struggle over security between a lender and supplier. General Electric Company, Lighting Business Group (“G.E.”), a supplier of the Chapter 11 Debtors, Halmar Distributors, Inc. (“Halmar”) and Ralar Distributors, Inc. (“Ralar”), has brought an adversary proceeding against the Debtors to establish the validity and priority of its interests in *330 the Debtors’ invento...
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MEMORANDUM AND ORDER Arie Enterprises, Inc. (Arie) constructed a restaurant in Collinsville, Illinois, known *642 as the Su Casa Mexican Restaurant and Cantina. The restaurant was in operation only a brief period of time before encountering financial difficulties which resulted in a voluntary filing pursuant to Chapter 11 of the Bankruptcy Code. 1 At the time of th...
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MOTION FOR RELIEF FROM STAY OR, IN THE ALTERNATIVE, FOR DISMISSAL OF CHAPTER 11 CASE MEMORANDUM OPINION AND DECISION In the past four (4) years, the debtors, John G. and Patricia Ann Taylor, and their corporation have filed three (3) bankruptcy petitions. Needless to say multiple bankruptcy filings by the same debtor are becoming more commonplace, See In re Jackson, 108 B.R. 251 (Bankr.E.D....
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MEMORANDUM OF DECISION This matter is before the court for resolution of a priority dispute which arose in connection with a motion for stay relief or adequate protection. The competing creditors are Norcold, a division of The Stolle Corporation (Norcold), and KDF, a Kansas general partnership. Norcold appears by Margaret W. Burgin and Patricia A. Reed-er. KDF appears by Mark G. Stingley and Ja...
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ORDER GRANTING SUMMARY JUDGMENT This matter is before the court on the defendant’s motion for summary judgment on its motion for relief from stay, debtors’ motion to avoid judicial liens, and debtors’ adversary complaint. The United States appears by counsel Benjamin L. Burgess, Jr., and Charles S. Kennedy III. Debtors appear by counsel Joel Pelofsky and James P. O’Hara. Debtors requested...
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OPINION OVERVIEW Appellant North County Jeep & Renault incurred losses while independently operating- the debtor’s business. It thereafter moved for an order allowing those losses as an administrative expense and sought payment of those losses from a secured creditor, appellee General Electric Credit Corporation, from the proceeds of secured property under 11 U.S.C. § 506(c). 1...
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MEMORANDUM In this case the debtors seek to avoid a lien in household goods under 11 U.S.C. Section 522(f). Before the court is debtors’ Motion to Avoid the Fixing of a Lien (Fil. # 5) and the Resistance thereto (Fil. # 12) by Beneficial Nebraska, Inc. I conclude that debtors’ motion should be granted in part. The facts are not controverted. The lien of Beneficial was originally a purchase mo...
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MEMORANDUM OF DECISION Before the court is the objection of Thomas L. Lackey, standing Chapter 13 trustee, to the allowance of the claim of Columbia Federal Credit Union (Columbia Federal) in the amount of $3,710.08 filed May 4, 1990. The trustee points out that the bar date for the filing of claims was October 19, 1989. This is mandated by Bankruptcy Rule 3002(c), which states: Rule...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Photographic Conservation Associates Ltd. (“PCA”) for the allowance and payment of administrative and posses-sory lien claims. 1 For the reasons set forth herein, the Court hereby denies the motion. *355 I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain this motion purs...
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MEMORANDA THIS MATTER comes before the court for a determination of whether the debtor may avoid under 11 U.S.C. Section 522(f), a lien on his residence held by his former spouse under a divorce decree. I conclude that the lien is not avoidable. FACTS The debtor, Michael Robert Holtzhauser, and his former spouse, Janet L. Holtzhau-ser, were married on December 13, 1980. The debtor purchased...
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MEMORANDA This Chapter 11 case presents the issue of whether the amount of a secured claim for purposes of the plan of reorganization is determined by the value of collateral on the date the case was commenced or, alternatively, on a date in close proximity to the date of confirmation of the plan. Also before the court is a dispute regarding the application of adequate protection payments...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO OBJECTIONS TO CLAIM NO. 207 This case is before the Court upon objections to the Federal Deposit Insurance Corporation’s (“FDIC”) claim number 207 in the amount of $7,014,103.00. Objectors are the post-confirmation administrator, Louis Lowin; Dayton Securities Associates; PM Associates; Litchfield Associates; Falls Village Associates; and a gr...
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MEMORANDUM THIS MATTER comes before the court on a Motion to Dismiss (Fil. # 6) filed by City National Bank and Trust of Hastings, Nebraska (“Bank”), a Joinder Motion to Dismiss (Fil. # 14) filed by Diana Marlatt, a Joinder Motion to Dismiss (Fil. # 19) filed by Scoular Grain Co., and a Motion to Dismiss (Fil. # 17) filed by the United States on behalf of the Internal Revenue Service (“IRS”). I...
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MEMORANDA THIS MATTER comes before the court on a Motion for Relief From the Automatic Stay (Fil. # 17) to collect delinquent child support payments. FACTS The debtor, John Daugherty, filed Chapter 7 bankruptcy on February 20, 1990. He is in default of child support payments with $1,819.61 past due. The Motion for Relief was filed by the Deputy County Attorney for Sheridan ...
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MEMORANDUM ORDER GRANTING PLAINTIFFS SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on cross motions for summary judgment in this proceeding to determine the dischargeability of a debt owed to the Minnesota Department of Jobs and Training (“MnDOJT”) for unpaid contributions to unemployment insurance. The parties have stipulated to the facts relevant ...
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MEMORANDUM OPINION This case is before the Court upon motion to avoid lien filed by the debtor pursu *838 ant to 11 U.S.C. § 522(f)(1). Upon the evidence presented the Court enters the following Memorandum Opinion: FACTS Debtor filed her petition under Chapter 7 of the Bankruptcy Code on September 18, 1989. In Schedule B-4 debtor listed real estate in St. Johns County as exempt homestead ...
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OPINION AND ORDER DISMISSING COMPLAINT This matter is before the court upon the parties’ stipulation of facts and briefs to determine whether plaintiff’s complaint to determine dischargeability must be dismissed. Upon consideration thereof, the court finds that plaintiff’s complaint is untimely and should be dismissed. FACTS On December 7, 1988, Debtor filed his voluntary petiti...
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MEMORANDUM OPINION This case is before the Court upon objection of the debtors to amended proof of Claim No. 4063, filed by Barteroil, S.p.A. The Court held hearings on January 11 and January 16, 1990, and upon the evidence presented, enters the following Memorandum Opinion: FACTS Barteroil, S.p.A., (“Barteroil”), entered into a consulting agreement with Charter Oil Company (“Charter Oil”) dated ...
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OPINION AND ORDER DENYING MOTION TO DISMISS AND GRANTING RELIEF This matter is before the court upon petitioners’ involuntary case of which Debtor has requested dismissal. Upon consideration thereof, the court finds that Debtor’s motion is not well taken and should be denied and that an order for relief under chapter 7 should be entered against Black-oaks, Inc. FACTS On March 23, 1990, peti...
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OPINION AND ORDER GRANTING APPLICATION TO RECOVER SUBJECT TO PAYMENT OF EXPENSES This matter is before the court upon Debtors’ application to recover repossessed property to which Society National Bank has objected. Upon consideration thereof, the court finds that said objection is not well taken and should be overruled and that Debtors may recover the repossessed property subject to payment to...
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MEMORANDUM AND DECISION ON COMPLAINT TO AVOID PREFERENTIAL TRANSFERS UNDER CODE § 547 I. Having examined the exhibits and assessed the credibility of the witness, I make the following findings of fact and conclusions of law. On December 20, 1984, the plaintiff and the defendant entered into two agreements under which the plaintiff leased two trucks from the defendant for five years. The lea...
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MEMORANDUM OF DECISION (Motion to Reopen Case) Before the court is the motion of Duval Federal Savings & Loan Association (“Du-val”) to reopen debtor’s case so that it may seek relief from the automatic stay nunc pro tunc. The court will deny the motion without prejudice. BACKGROUND Debtor filed his bankruptcy case under Chapter 13 on June 22, 1989. The only cred...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon objection by the post-confirmation administrator, Louis Lowin (“objector”) to claims filed by Leonard C. Levie (“Levie”) in the following estates: The Securities Group, number 26; The Securities Group 1980, number 47; The Monetary Group, number 37; The Securities Groups, number 26. *116Upon the evidence presented, the Cour...
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ORDER RE MOTION FOR COMMON STOCKHOLDERS COMMITTEE This matter came on for hearing on February 2, 1990, upon the Motion of Martin Rochman and Robert Richards for Order Appointing an Official Committee of Common Stockholders. The Motion in question was filed on January 12, 1990. The Court has reflected on those arguments, as well as the written pleadings on this matter and the record in this case...
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter came on for trial upon plaintiff’s complaint to determine dischargeability of debt. Upon consideration of the evidence adduced at the hearing and the oral arguments of the parties, the court finds that the debt due plaintiff should be excepted from discharge. FACTS On July 18, 1989, Debtor/defendant filed his voluntary chapter 7 pe...
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MEMORANDUM OPINION REGARDING THE MOTION OF THE TRUSTEE FOR SUMMARY JUDGMENT AND THE CROSS MOTION OF THE DEFENDANTS FOR SUMMARY JUDGMENT This matter comes before the Court on the Motion of the Trustee for Summary Judgment, the Memorandum in Support of *631 the Trustee’s Motion for Summary Judgment, the Joint Stipulation of Facts and Documents, the Objections of the Adversary D...
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REVISED MEMORANDUM OPINION This Memorandum concludes an adversary proceeding which arose from the pre-petition issuance of a letter of credit which was negotiated in order to enable the Debt- or to buy several tons of steel slab. The letter of credit was issued by the Plaintiff, Berliner Handels-Und Frankfurter Bank (“BHF”), on behalf of the Defendant, East Texas Steel Facilities (referre...
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OPINION The trustee appeals from an order granting summary judgment. The bankruptcy court overruled the trustee’s objection to the debtors’ homestead exemption claim. We AFFIRM. FACTS The debtors/appellees, Loren Gitts and Mary Gay Gitts (“debtors”), resided at 6006 Ridgeview Place (“Ridgeview Place property”), Ferndale, Washington, on April 3, 1989, the date they filed their Chapter 7 peti...
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MEMORANDUM OPINION A contested hearing was held on April 24, 1990, pursuant to Objections to Exemptions filed by Don Higginbotham, Successor Administrator of the Estate of Olga C. Bohac, Deceased, and by creditors Dorothy Bohac, Ann Bohac Moriarty, Myra Bohac Valenta, Mark Bohac, Jay Bohac, Lois Bo-hac and Joseph Bohac (the “Bohac Creditors”) wherein the objectors dispute the Debtor’s rig...
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MEMORANDUM OPINION 1 FINDINGS OF FACT On January 27, 1989, while driving the uninsured automobile of her husband, Robert A. Kuck, Michelle L. Kuck (Kuck or collectively with Robert A. Kuck referred to as the Kucks) was involved in an automobile accident with Troy and Jerome Williams. Troy Williams subsequently filed suit against Kuck claiming $3,016.66 as damages. Kuck w...
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MEMORANDUM OPINION THIS MATTER comes before the court on the debtor’s Motion for New Trial, for Amended Findings of Fact and for an Amended Order (Fil. #111). The court concludes that the motion should be granted in part and denied in part. The debtor’s motion for new trial and amended findings was filed in response to the court’s January 16, 1990 memorandum opinion in this matter. The January 16,...
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MEMORANDUM OF DECISION This adversary proceeding 1 raises an issue of first impression in our jurisdiction; that is, to what extent may Vermont’s contractors ignore the Bankruptcy Code’s automatic stay provision and proceed to obtain post-petition writs of attachment in State Court to perfect their pre-petition non-judicial notices of contractors’ liens? We hold the timely...
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OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND EXCEPTING DEBTS FROM DISCHARGE This matter is before the court upon plaintiffs’ motion for summary judgment of their complaint to determine discharge-ability of debt and avoidance of lien, to which defendants have failed to respond. Upon consideration thereof, the court finds that said motion is well taken and should be granted, and tha...
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OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING PLAINTIFFS’ COMPLAINT This matter is before the court upon Defendant's motion for summary judgment requesting dismissal of Debtors’/plaintiffs’ complaint to recover a preference to which plaintiffs have responded. Upon consideration thereof, the court finds that said motion is well taken and should be granted and that p...
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MEMORANDUM OPINION The issues before the court are whether a Nebraska land contract is executory under 11 U.S.C. § 365 and whether an anti-assignment clause in the land contract is enforceable. I conclude that the anti-assignment clause is not enforceable and that the land contract is an executory contract under § 365. FACTS The debtor, Heartline Farms, Inc. is an assignee of the vendee’s interes...
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MEMORANDUM OF DECISION AUTHORIZING USE OF CASH COLLATERAL The issue presented here is whether an assignment of rents was effective to trans *204 fer the rents absolutely to the lender and thereby to keep the rents from becoming cash collateral property of Debtor’s bankruptcy estate. Facts Bethesda Air Rights Limited Partnership (the “Debtor”) owns and operates a...
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MEMORANDUM OPINION AND ORDER ON DEBTOR’S OBJECTION TO CLAIM OF INTERNAL REVENUE SERVICE The above-styled core proceeding 1 came on for hearing on the objection of Qual Krom South, Inc., Debtor, (“Debtor” or “Qual Krom”), to the claim of the Internal Revenue Service (“I.R.S.”). An evidentiary hearing was conducted wherein testimony was taken and exhibits entered in the records. The issue for j...
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ORDER By motion filed May 16, 1990 in each of the above referenced related Chapter 11 proceedings, the United States of America (hereinafter referred to as “IRS”) seeks relief from the orders of confirmation. The facts are uncontroverted and apply equally in each case. Richard E. Poteet (hereinafter “Poteet”) is a contractor doing business in Augusta, Georgia and is employed by Poteet Con...
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OPINION AND ORDER DISMISSING DEBTOR’S CASE AND PROHIBITING FURTHER PETITIONS FOR A PERIOD OF TWO YEARS This matter came on to be heard upon The Commercial Savings Bank’s motion to dismiss and for sanctions, American Heart Association and American Cancer Society’s memorandum in support of said motion and Debtor’s objection thereto, at which the following appearances were made: Bruce J. Bec...
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OPINION AND ORDER I. Introduction This matter is before the Court upon an objection to the confirmation (“Objection”) of a Chapter 13 plan proposed by the debt- or, Betty J. Little (“Debtor”). The Objection was filed by PCSE Federal Credit Union (“PCSE”) and was heard on June 26, 1990, at an evidentiary hearing held to consider confirmation of the Debtor’s plan. The Cour...
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MEMORANDUM A. INTRODUCTION Before us is an Application of Rania M. Major (“Major”), requesting that she be appointed, under certain conditions, as “co-counsel” with the Debtor, JOHN S. TRIN-SEY, JR. (“the Debtor”), who has been proceeding pro se in his bankruptcy case, converted from Chapter 11 to Chapter 7 on August 17,1989. Specifically, she requests that her rate of com...
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ORDER DENYING CONFIRMATION OF SECOND AMENDMENT TO CHAPTER 13 PLAN This cause came on for, consideration of the Debtor’s Second Amendment to Chapter 13 Plan and the Trustee’s unfavorable recommendation.1 At the outset, the Court notes that the Second Amendment is incomplete in that it fails to specify the dividend to unsecured creditors. Of greater interest to the Court, however, is the provision f...
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OPINION A. INTRODUCTION The instant proceeding presents several disputes concerning the interpretation of a contract, an Asset Purchase Agreement (“the APA”) dated October 1, 1988, by which the Defendant in this proceeding, NEUMANN MEDICAL CENTER, INC. (“Neumann”), bought the facility previously operated by ST. MARY HOSPITAL, the Debtor (“the Debtor”), effective on the date of the sa...
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*132AMENDED ORDER ON JOINT OBJECTION TO THE CLAIMS OF THE INTERNAL REVENUE SERVICE This cause came before the Court on February 21, 1990, at 1:30 p.m., on the Joint Objection to the Claims of the Internal Revenue Service (“IRS”) (the “Objection”) filed by the Debtor, T.M. Products Co. (“TM”) and its president Thomas Metz-ger (“Metzger”). This Order is intended to constitute the Court’s findings o...
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RULINGS AND FINDINGS OF FACT ON BAD FAITH FILING This case presents the classic demonstration of the resourcefulness of an imaginative counsel. Mr. Kirby possesses one of those highly intelligent and truly creative legal minds. His clients, prior to his entry into the proceeding, had twice tried unsuccessfully to find a way to obtain the benefits of the automatic stay in Massachusetts. Th...
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MEMORANDUM OF DECISION BACKGROUND In this case, the Court is asked to revisit the subject of the proper method by which a creditor’s allowed secured claim in a debt- or’s automobile is valued under Section 506(a) of the Bankruptcy Code in connection with the “cram down” of that secured *579 claim in a proposed Chapter 13 plan pursuant to Section 1325(a)(5)(B). In particu...
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ORDER DENYING CONFIRMATION This cause came on for hearing on May 10, 1990 to consider confirmation of the *336 Debtor’s Chapter 13 Plan. Present at the hearing were Frank Pees, the Chapter 13 Trustee and William Peoples, representing the Debtor. This Court has jurisdiction pursuant to 28 U.S.C. § 1334 and the General Order of Reference entered in this District. This is a core proceeding under...
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ORDER ON BICOASTAL CORPORATION’S MOTION FOR SUMMARY JUDGMENT ON ITS OBJECTION TO THE CLAIM OF HSSM # 7 THIS CAUSE came on for hearing with notice to all parties in interest upon Bicoas-tal Corporation’s (Debtor) Motion for Summary Judgment. The Motion is directed to an objection to the Claim of HSSM #7 Limited Partnership (HSSM #7) filed by the Debtor. The Debtor contends that, based upon...
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OPINION This opinion was originally issued orally from the bench on July 25, 1990. As it addressed a highly topical area of bankruptcy law, it is now being supplemented with this written opinion. FACTS The Debtor was involved in the trucking business. It filed a Chapter 11 bankruptcy petition on November 30,1984. On August 23, 1985, the Debtor received court approval to hire Car...
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ORDER ON OBJECTION TO CLAIM OF BACKER NAVID THIS is a confirmed Chapter 11 case and the matter under consideration is an Objection to a Proof of Claim filed by Uiterwyk Corporation (Debtor) challenging the allow-ability of Claim No. 1010 filed by Backer Navid (Navid), d/b/a Brothers Trading Firm. The claim, in the amount of $1,150,-256.00, is based on an alleged “civil theft” and conversion of $38...
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ORDER In this Chapter 12 case, secured creditors Lasar et al. (Lasar) have filed a Motion under Section 365 of the Bankruptcy Code to require the Debtors to Assume or Reject an Executory Contract. The issue presented upon the Briefs filed by the parties is whether a Contract for Deed for the sale and purchase of Debtor’s farm is an exec-utory contract under § 365 of the Code. The Contract for Dee...
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*711 ORDER ON MOTION TO DISMISS CHAPTER 13 PETITION THIS CAUSE came on for consideration upon the Motion To Dismiss Chapter 13 Petition filed by Metro Realty and Mortgage Company (Metro) in the above-captioned Chapter 13 ease. The Court has considered the Motion, together with the record and comments of counsel, and is satisfied that it is appropriate to enter an order granting t...
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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 Michael F. Dignam (Plaintiff) as Personal Representative of the Estate of James Spall, deceased. The Complaint filed by the Plaintiff consists of six counts and the claims, as plead, are as follows: In Count I, the Plaintiff seeks...
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MEMORANDUM DECISION Presently pending is the State of California’s motion to dismiss the trustee’s com*735plaint, and the trustee’s motion for summary judgment. Harold S. Taxel (“Taxel”) is the trustee for the Chapter 7 debtor, Del Mission Limited. The California Employment Development (“EDD”) and the California State Board of Equalization (“the Board”) are administrative agencies of the State of...
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ORDER ON SECOND SUPPLEMENT TO THE FIRST APPLICATION FOR ALLOWANCE OF INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES BY KAHN CONSULTING, INC., AS ACCOUNTANTS FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS THIS CAUSE came on for hearing with proper notice given to all interested parties upon the Second Supplement to the First Application for Allowance of Interim Compensation and Reimbursement...
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ORDER ON MOTION FOR CONTEMPT AND SANCTIONS FOR VIOLATION OF ORDER LIFTING AUTOMATIC STAY AND INJUNCTION THIS CAUSE came on for consideration upon the Motion for Contempt and Sanctions for Violation of Order Lifting Automatic Stay and Injunction filed by Chris Joseph Simonetti, d/b/a Vaughn’s Tropical Fish and Caroline Ann Simonetti in the above-captioned Chapter 7 case. The Debtors filed ...
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MEMORANDUM ON VALIDITY OF FEDERAL AND MASSACHUSETTS STATE MARITIME LIENS These issues arise before this Court in an adversary proceeding instituted by the debtor, Bay State Yacht Sales, Inc. (Bay State), against Squantum Engine & Services Co., Inc. (Squantum). By this action the debtor seeks, as a preferential transfer pursuant to 11 U.S.C. §§ 545(2) and 547, to avoid Squantum’s alleged l...
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ORDER ON DEFENDANTS’ OBJECTIONS TO AND MOTION FOR RECONSIDERATION OF DEBTORS’ MOTION FOR EXTENSION OF TIME TO MAY 31, 1990 FOR FILING THEIR RESPONSE TO CERTAIN ASBESTOS DEFENDANTS’ OBJECTIONS, AND STATEMENT OF GROUNDS FOR SUCH OBJECTIONS, TO THE BANKRUPTCY COURT’S PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATIONS CONCERNING ABSTENTION THE MATTER under consideration in this adversar...
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BENCH DECISION/ORDER The cause for debtor’s motion for a preliminary injunction and its underlying complaint is Noma and Brown’s proceeding with discovery against RPM in the District Court for the Western District of Missouri. The discovery permitted by that Court’s order is limited to the taking of two depositions of former Gates’ employees, requests for production of documents and answers to int...
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STATUS OF SECURED CLAIM Plaintiff, Cambridge Meridian Group, Inc./Michael E. Weingarten (“Trustee”), Trustee of Erin Food Services, Inc. (“Erin Foods”), was appointed Chapter 11 Operating Trustee of Erin Foods in May of 1989. Erin Foods is engaged in the business of operating Burger King franchised restaurants in New Hampshire and northeastern Massachusetts. David W. Murray (“Murray”) dir...
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INTRODUCTION This proceeding is before this Court on remand from the United States District Court. The Debtors (“Scrima”), initiated this action against the Insurance Company of North America (“INA”), and Trans-america Insurance Company (“Trans-america”), for losses incurred when Scri-ma’s business was destroyed by fire. The pending matters are whether INA, having settled with Scrima, can seek co...
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ORDER DENYING MOTIONS OF BOSTON COMPANY FOR DISMISSAL, FOR ORDER PROHIBITING USE OF CASH COLLATERAL, FOR RELIEF FROM STAY, AND FOR SEQUES-. TRATION OF RENTS AND OTHER PAYMENTS, AND GRANTING DEBTOR’S MOTION TO USE CASH COLLATERAL This matter came on before the court for hearing on April 23-26, 1990, upon a continued hearing on the Motions of Boston Safe Deposit and Trust Company, as Trustee of R...
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OPINION Howard A. Fafard (the “Debtor”) moves for an order directing First National Bank of Boston (the “Bank”) to turnover to him the rents it has collected. He also requests that the Bank be barred from collecting rents in the future. By separate motion, the Bank asks the court to abstain from hearing the matter so that it may continue the litigation pending between the parties in state...
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MEMORANDUM DECISION At issue is whether the removal of a state court complaint for damages satisfies Bankruptcy Rule 4007(a) which requires that a complaint be filed with the court to obtain a determination of the dischargeability of a debt. 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 Co...
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MEMORANDUM DECISION Presently pending is the application of David L. Buchbinder and Associates (“applicant”) for allowance of fees and reimbursement of costs as counsel for alleged debtor in possession, McNar, Inc. (“McNar”). At issue is whether applicant is entitled to compensation for attorneys’ fees and costs pursuant to § 330(a) of the Bankruptcy Code. 1 Applicant contends ...
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This is the Court’s Opinion on the Debtors’ objections to First Federal Savings & Loan’s proof of claim. In addition to the parties’ stipulation of fact, the Court has taken judicial notice of its record. The Debtors do not dispute that First Federal is entitled to the principal and interest portion of a default judgment entered August 24, 1988, on First Federal’s mortgage foreclosure complaint in...
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This is the court’s Opinion on the question of whether Frederic A. Lang’s claim has secured status in the CPM Energy Systems Corporation’s Chapter 11 case. Lang’s claim arises out of a $200,000 loan made to CPM in October 1986 that was refinanced in February 1987. The original loan is evidenced by two $100,000 promissory notes, two stock purchase agreements authorized by corporate resolution and a...
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OPINION This opinion was originally issued orally from the bench on July 25, 1990. As it addressed a highly topical area of bankruptcy law, it is now being supplemented with this written opinion. FACTS The Debtor and his former wife, Lisa Lesperance, were married for approximately 15 years. In the latter part of 1988, the Debtor was sued for divorce. On March 7, 1989, the parties had an unconteste...
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ORDER ON OBJECTION TO CONFIRMATION AND DEBTOR’S OBJECTION TO CLAIM OF ONE COLUMBUS This cause came on for hearing on April 19, 1990, to consider confirmation of the Debtor’s Chapter 13 Plan, and the Objection to confirmation by One Columbus Building Associates, Ltd. (“One Columbus”). Also, under consideration is the Debtor’s Objection to the claim of One Columbus and the Response thereto....
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ORDER ON MOTION TO AVOID LIEN THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion To Avoid Lien filed by Richard Brewer (Debtor), who seeks to use the benefits of § 522(f)(1) and invalidate a lien which is claimed to be an avoidable judicial lien. The lien in question which is sought to be avoided encumbers the homestead property of the Debtor, a property which was ...
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OPINION A. INTRODUCTION The Debtor herein seeks to parlay a technical violation of the federal Truth in Lending Act, 15 U.S.C. § 1601, et seq. (“TILA”) —the creditor’s failure to expressly disclose that the Debtor could obtain fire insurance from an insurer of his choice — into an erroneous disclosure of the finance charge in a loan transaction, entitling the Debtor to the drastic co...
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OPINION This matter comes to the court on motion for partial summary judgment filed by the Debtor Shoreham Paper Company, f/k/a *275 Watervliet Paper Company, Inc. (“Water-vliet” or “Debtor”). 1 Defendant Berrien County (“County”) and the City of Water-vliet (“City”) have filed answers and briefs in support. 2 Watervliet, the County and the City all agree that there is no genuine issue as...
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OPINION This matter comes before the Court upon the Debtor’s Motion for an Order determining that the State of New Jersey, Department of Labor, is in contempt of the automatic stay under 11 U.S.C. § 362. The State of New Jersey prays for relief from the automatic stay to pursue its claims against the Debtor in State Court. This Opinion shall constitute the Court’s Findings of Fact and Conclusio...
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MEMORANDUM ORDER AND DECISION The Trustee appointed to serve in this case has objected to Debtor’s claimed exemption of his interest in the Texas Plantation Foods Corporation Profit Sharing Plan (“Plan”). At the hearing on the objection, Debtor argued not only that, pursuant to 11 U.S.C. § 522(b)(2), his interest in the Plan was exempt under Oklahoma law or nonbankruptcy federal law, but ...
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OPINION This matter came on for consideration of Movant, First Gibraltar Bank, FSB’s (“Bank”), Motion for Relief from Automatic Stay and Motion to Dismiss Chapter 13 Case with prejudice. This Opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052 and disposes of the issues presented to the Court. FACTUAL BACKGROUND The facts of this case are no...
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OPINION Comes now for the Court’s consideration the First Amended Motion of Debtor, Oscar Still and wife, Rebecca Still, and Texas Timberland Company for contempt against American Pipeline Company, Inc. This opinion constitutes findings of fact and conclusions of law under Bankruptcy Rule 7052 and disposes of all issues before the Court. FACTUAL BACKGROUND The issue before the Court involve...
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DECISION ON MOTION FOR DISMISSAL OF DISCHARGEABILITY COMPLAINT These Chapter 11 debtors have moved for an order dismissing a creditor’s complaint objecting to the dischargeability of its debt under 11 U.S.C. § 523(c). The ground for the dismissal motion is that the complaint was filed untimely pursuant to Bankruptcy Rule 4007(c) because it was not filed within sixty days after the first d...
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ORDER GRANTING DEBTORS’ MOTION FOR SANCTIONS This matter comes before the Court on the Motion for expedited reopening of Bankruptcy Proceeding and for Sanctions (“the Motion for Sanctions”) filed by the Debtor on March 31, 1989. The bankruptcy case was reopened by order dated July 18, 1989, and the issue of sanctions was heard on August 15, 1989, and August 29, 1989. The Court now grants ...
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OPINION The City of Boerne, Kendall County and Boerne Independent School District (the “taxing jurisdictions”) have asserted secured claims to the proceeds of the sale of automobile inventory by virtue of alleged ad valorem tax liens on the business personal property of Boerne Hills Leasing Corporation (the “Debtor”). The central issues are whether the taxing jurisdictions’ ad valorem tax...
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ORDER SCHEDULING CONTINUED CONFIRMATION HEARING THIS CASE came on for confirmation hearing on July 31, 1990. At that time, the Chapter 13 Standing Trustee reported to the court that the debtor had not paid the plan payment of $1,270.00 that was due on July 15, 1990. The trustee reported, as well, that the debtor was also delinquent an additional $339.00 of the plan payment that was due on June ...
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*717 MEMORANDUM OPINION THIS CASE came on for hearing on June 26, 1990, pursuant to an order to show cause directed to Neil J. Buchalter, Esquire, and Andrew Baron, Esquire (Document No. 10). Each lawyer has received an excessive amount as an attorneys fee for representing “repeat” or “serial” filing Chapter 13 debtors. To remedy the abuse of the bankruptcy system and the prejudice to credi...
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ORDER ON SEVERAL PENDING APPLICATIONS RELATING TO PROFESSIONALS’ FEES AND SUPPLEMENTING PROFESSIONALS’ INTERIM FEE APPLICATION PROCEDURES THIS CAUSE came on for hearing on February 22, 1990, of several motions and applications relating to professionals’ fee *704 applications. It also came on for ex parte consideration of other motions and applications related to that subject....
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MEMORANDUM OPINION This matter comes on to be heard upon the motion of Gene Maritan (“Maritan”), asking for leave to file an objection to the discharge of Phillip Gale Hill (“Hill”), after the time for filing such complaints has expired, and this Court having heard the evidence and arguments finds as follows. STATEMENT OP PACT On March 19, 1990, Hill filed a voluntary petition f...
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MEMORANDUM OPINION The matter before the court is the Levin-son Steel Company’s (hereinafter “Levin-son”) Motion for Confirmation of Existing Severance Policy, and to Provide Key Employee Severance Arrangements. 1 On March 7, 1990, Levinson filed a petition for relief under Chapter 11 of the Bankruptcy Code. Levinson continues in the management of its business and property as Debt- or-in-Poss...
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OPINION Before ASHLAND, PERRIS and OLLASON, Bankruptcy Judges. The debtors appeal the bankruptcy court’s orders denying confirmation of their Chapter 12 plan and dismissing the case. We reverse. FACTS In 1985, Gary and Patricia Grimes, the debtors, filed a petition for relief under Chapter 11. A Chapter 11 plan was confirmed on April 21, 1986 and a discharge was entered pur...
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MEMORANDUM OF DECISION PROCEDURAL HISTORY This action commenced with the filing of an involuntary petition for relief under Chapter 7 of the Bankruptcy Code on November 20, 1989 by Gurnam Singh (hereinafter, “Singh”). In the caption of the petition, Singh listed Western Land Bank Inc. as debtor and indicated that said corporation was also known as Mannix Investments, Inc., Acacia Inv...
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MEMORANDUM OF DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES PROCEDURAL BACKGROUND Dona McGoldriek (“Ms. McGoldriek”), plaintiff and cross-defendant in Adversary No. LA 88-00797 arising in the bankruptcy case of Brian McGoldriek (“Debtor”), has *556 brought a motion for summary judgment, or in the alte...
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DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT REGARDING GUARANTOR’S CLAIM In this latest of the decisions spawned by the bankruptcy of Wingspread Corp. (Wingspread) and its twelve debtor subsidiaries (collectively, the Debtors), the ultimate issue is the allowability of a sizeable administrative claim filed by Gulf & Western, Inc. (G & W). Resolution of that issue posed in these motions ...
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MEMORANDUM OF DECISION ON MOTION BY DEBTOR TO SELL FREE AND CLEAR OF PREPAYMENT PREMIUM AND DEFAULT INTEREST PROCEDURAL HISTORY 433 South Beverly Drive, a California limited partnership, is the debtor and debt- or in possession pursuant to a voluntary petition under Chapter 11 of the Bankruptcy Code filed on August 24, 1988 (“Debt- or”). 1 The Debtor’s sole asset is an int...
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This matter comes before the Court on the Debtors’ Objection to Secured Claim of Lomas Mortgage USA (“the Objection to Claim”), filed by the Debtors on November 13, 1989, and on the Objection to Chapter 13 Plan (“the Objection to Plan”) filed by Lomas Mortgage USA, Inc. (“Lomas”) on November 7, 1989. The matters were heard on December 27, 1989. The Court now overrules the Objection to Claim and s...
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DECISION AND ORDER GRANTING MOVANT’S MOTION TO MODIFY AUTOMATIC STAY Before the court is a motion of RTO Rents requesting relief from the automatic stay of 11 U.S.C. § 362. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(G). FACTS On May 30,1989 Yvon...
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ORDER ON OBJECTION TO SECOND AMENDED CLAIM OF CUYAHOGA COUNTY FOR TAXES AS AN ADMINISTRATIVE EXPENSE This matter is before the Court on the objection of the Debtor and Debtor-In-Possession, Wendy’s Food Systems, Inc. (“Debtor”) to the second amended claim of Cuyahoga County for 1988 and 1989 personal property taxes as an administrative expense under 11 U.S.C. § 503(b). The basis for the Debtor’...
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*463 ORDER RE: CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT This adversary proceeding came on before the Court on May 1, 1990, for hearing on the parties’ cross-motions for partial summary judgment. Plaintiffs appeared by Michael L. Meyer, general Chapter 11 counsel for Debtor Harry A. Johnson, Jr. (“Johnson”) and special counsel for Debtor Pineapple Management Company (“Pineapple”...
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MEMORANDUM AND DECISION ON COMPLAINT TO AVOID MORTGAGES UNDER CODE § 544(a)(1) I. The parties have stipulated to the following facts. On January 13, 1988, the debtor and Carole Lynn Terkeltaub purchased real estate located at 12 Beachside Common, Westport, Connecticut, and on January 18, 1988, they gave the defendant a $500,-000.00 mortgage deed on that property (the “Prepetition Mortgage”). On J...
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OPINION AND ORDER ON MOTION FOR RELIEF FROM STAY This matter is before the Court upon the motion filed by Shawmut Bank, N.A. and Shawmut National Trust Company, Trustees of American Pioneer Commercial Loan Remic Trust 1988-1 (the “Movant”), for relief from the automatic stay. The debt- or, Camellia Court Apartments, Ltd. (the “Debtor”), filed a memorandum contra to the motion. The matter ...
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OPINION AND ORDER ON MOTION TO EXCUSE STATE COURT RECEIVER’S COMPLIANCE WITH 11 U.S.C. § 543 This matter is before the Court upon the motion filed by Lincoln National Bank and Trust Company (“Lincoln”) to excuse compliance by state court receiver with § 543 of the Bankruptcy Code. The motion was opposed by Willowood East Apartments of Indianapolis II, Ltd., a debtor and debtor-in-possession in thi...
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STATEMENT OF THE CASE David W. Pippinger, Debtor, Plaintiff, filed a “Complaint to Determine Tax Liabil *757 ity of Debtor Under Section 505 of the Bankruptcy Code and for Temporary Injunction” on February 15, 1990. Plaintiff asks the Court to determine his liability for certain delinquent employment withholding taxes. The United States of America, Defendant, filed a timely an...
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OPINION AND ORDER ON DEBTOR’S MOTION FOR SANCTIONS OR A FINDING OF CONTEMPT AGAINST CATERPILLAR FINANCIAL SERVICES This matter is before the Court upon a motion filed on behalf of Timothy V. New-ell, the debtor in a pending Chapter 13 case. The motion seeks to have Caterpillar Financial Services (“CFS”) held in contempt and sanctioned for willful violation of the automatic stay. The motion was ...
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OPINION AND ORDER ON OBJECTION TO THE CLAIM OF EXEMPT PROPERTY This matter is before the Court on an objection to the Debtor’s claim of exemption for an interest in a life or endowment insurance or annuity or proceeds thereof. The objection was filed by Thomas C. Scott, the duly appointed trustee of this bankruptcy estate, and was heard by the Court. *315 The Court has juris...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come on to be heard on May 30, 1990, upon the complaint of RONALD EVERETT TIDWELL (the “debtor”) against ANNE TEGTMEYER (the “creditor”) to determine the discharge-ability of a debt pursuant to 11 U.S.C. Section 523(a)(5), and upon the Counterclaim of the Creditor also pursuant to 11 U.S.C. Section 523(a)(5), and the Court having heard t...
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OPINION AND ORDER ON MOTION TO EXCUSE COMPLIANCE WITH 11 U.S.C. § 543 This matter is before the Court on a motion to excuse a state court appointed receiver from complying with the turnover provisions of § 543 of the Bankruptcy Code. The motion was filed on behalf of Goldome Realty Credit Corp. (“Goldome”). The Chapter 11 debtor, Northgate Terrace Apartments, Ltd. (“Northgate”), opposed t...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF MODIFIED CHAPTER 13 PLAN This matter is before the Court on the requested confirmation of a Chapter 13 *327plan proposed by Delbert Roy Smith, III (“Debtor”). Ford Consumer Credit Co. (“Ford”) objected to confirmation and the matter was heard by Judge Cole of this Court. Following that hearing this Court received the matter under advisement, read t...
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MEMORANDUM OPINION This matter comes before the Court upon the filing of an involuntary Chapter 11 bankruptcy petition against Williamsburg Suites limited partnership and a motion filed by one of the general partners to dismiss the involuntary bankruptcy petition pursuant to 11 U.S.C. § 305. Finding that dismissal is in the best interests of creditors and the debtor, the Court hearby dismisses ...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS FOR LACK OF JURISDICTION UNDER 28 U.S.C. § 157 The defendant Israel Raveh 1 moves for the dismissal of this adversary proceeding, arguing that it does not arise under or in a case under title 11, so that it is not a core proceeding, and that it is inconceivable it will have an impact on the administration of the plaintiff’s estate, so that it is not “...
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OPINION AND ORDER ON MOTION OF GIFFIN MANAGEMENT GROUP, INC., ET AL., AGAINST CARDINAL INDUSTRIES, INC. FOR RELIEF FROM THE AUTOMATIC STAY This matter is before the Court upon the motion filed by Giffin Management Group, Inc. (“Giffin”) and numerous named individuals and other entities (collectively the “Movants”) seeking relief from the automatic stay imposed by 11 U.S.C. § 362(a). The M...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT James and Josephine Dillard, d/b/a Dillard’s Service Station, (“Plaintiffs”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The Internal Revenue Service (“IRS”) filed a proof of claim and asserts that it holds a tax lien on all of Plaintiffs’ property. Plaintiffs filed an objection to the IRS’s claim and sh...
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ORDER ON APPLICATION OF LATINO BROADCASTING CORPORATION FOR ALLOWANCE OF ADMINISTRATIVE EXPENSES THIS MATTER comes before the Court upon the Application of Latino Broadcasting Corporation for Allowance of Administrative Expenses filed June 1, 1990 and the Response and Objection thereto filed by the Chapter 11 Trustee on June 25, 1990. The central question before the Court is whether ...
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MEMORANDUM OF DECISION ON APPLICATION TO COMPEL SURRENDER OF NON-RESIDENTIAL REAL PROPERTY BY DEBTOR-IN-POSSESSION PURSUANT TO 11 U.S.C. § 365(d)(4) This matter is before the court on an application filed by Shell Oil Company, to compel the debtor to surrender two nonresidential real properties, pursuant to 11 U.S.C. § 365(d)(4). The chapter 11 debtor and debtor in possession responded an...
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OPINION A. INTRODUCTION Before the court is a Motion of the Pennsylvania State Workmen’s Insurance Fund (“the Fund”), a creditor in this Chapter 11 bankruptcy case, seeking a determination that its claim of $91,460.00 (“the Claim”) has priority status under 11 U.S.C. § 507(a)(7)(E). We reject the Fund’s request on two alternative grounds: (1) The Fund is not entitled to change the cl...
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OPINION This matter is before the Court on the Motion for Relief from the Automatic Stay filed by VISCO FINANCE (VISCO) and the objection by VISCO to the Statement of Intention filed by the Debtors, DAVID and CHRISTINE HATFIELD (HATFIELDS) along with the HATFIELDS’ counterclaim alleging a Truth-in-Lending violation. Both parties have filed motions for summary judgment. In June, 1988, VISCO fi...
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STATEMENT The debtor/plaintiffs have filed a complaint objecting to claims filed by the named defendants against the debt- or/plaintiff s’ estates, asserting twenty-one claims for relief. Each claim for relief identifies the suing debtor/plaintiff and the defendant against whom relief is sought. The debtor/plaintiffs request the disallowance of the defendants’ claims. Each claim for relief allege...
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MEMORANDUM OPINION Before the Court is a Motion To Dismiss Pursuant To 11 U.S.C. § 707(b) filed by the United States Trustee (“Trustee”). *188 Trustee.contends that Gerald and Bette Jo Helmicks’ (“Debtors”) Chapter 7 bankruptcy case should be dismissed because Debtors’ Schedule of Current Income and Current Expenses (“Schedule”) reflects a monthly disposable income (income less expenses) ...
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MEMORANDUM AND ORDER Following a determination by this Court that the debtors were not entitled to exempt the interest of debtor J. Lloyd Tomer in a Church of God, Inc., pension,1 the trustee brought this turnover action to compel the Board of Pensions of the Church of God, Inc. (“Board”), to pay over the current balance of the debtor’s account for the benefit of the bankruptcy estate. The Board a...
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MEMORANDUM OPINION Before the Court is a Complaint To Determine Dischargeability of A Student Loan pursuant to 11 U.S.C. § 523(a)(8)(B) brought by Debtor Mark David Burton (“Debtor”). Debtor contends that excepting the debt he owes to Defendant Pennsylvania Higher Education Assistance Agency (“PHEAA”) from discharge will impose an undue hardship upon him. Based upon the evidence presented...
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MEMORANDUM OPINION Before the Court is Debtors’ Motion To Avoid Judicial Liens Pursuant To 11 U.S.C. § 522(f)(1). *192 Debtors seek to avoid two (2) pre-petition judicial liens by McKelvey Oil Co., Inc. (“McKelvey”) in the amounts of $41,580.59 and $115,228.32, respectively, which liens, have attached to two (2) parcels of real property owned by Debtors. According to...
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MEMORANDUM OPINION Before the Court is a Motion For Relief From Automatic Stay by Chrysler First Consumer Discount Company (“Chrysler”), which seeks relief pursuant to 11 U.S.C. § 362(d). They request authority to proceed in state court against property belonging to Debtor in which Chrysler allegedly had a perfected security interest. Except for the question relating to the pro...
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MEMORANDUM OPINION Before the Court is a Complaint To Require Trustee To Account filed by A.Z. Holdings Corporation (“A.Z. Holdings”). This Court denied A.Z. Holdings’ previous request for an accounting in its Memorandum Opinion and Order of Court dated May 21, 1990. A.Z. Holdings alleges that James E. Moody, Trustee (“Trustee”) has received funds that belong to A.Z. Holdings, of which A.Z....
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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)(I), which the Court may hear and determine. INTRODUCTION The Debtor, Mary Kay C...
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DECISION ON TRIAL OF INVOLUNTARY PETITION IN BANKRUPTCY AND ORDERS CONTINUING TRIAL PROCEEDINGS, MODIFYING AUTOMATIC STAY AND REQUIRING FILING OF STATUS REPORTS This case came before the court for trial upon an involuntary petition in bankruptcy filed by John Paroline. The petition alleg *584 es that Scott T. Doling is generally not paying his debts as they become due and req...
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MEMORANDUM OF OPINION AND ORDER I. This matter is before the Court upon the motion of the City of Toledo, Ohio (the City) seeking a dismissal of the case trustee’s action to recover an alleged preferential transfer, based upon a non-waiver of sovereign immunity. Upon the findings and conclusions set forth herein, said motion is denied. The Debtor, Cook, United, Inc., caused to b...
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MEMORANDUM OF DECISION The facts in this matter are undisputed. The Debtor granted the creditor GMAC a security interest in his vehicle to secure the unpaid balance of the purchase price. The Debtor filed for relief under Chapter 7, but is current on his payments to GMAC. As required by Section 521(2) of the Bankruptcy Code, the Debtor filed a statement of intention with respect to his assets...
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ORDER OF BANKRUPTCY COURT TRANSMITTING ADVERSARY PROCEEDING TO UNITED STATES DISTRICT COURT DUE TO BANKRUPTCY COURT’S LACK OF JURISDICTION TO CONDUCT A JURY TRIAL WHICH CERTAIN DEFENDANTS ARE ENTITLED TO IN A CORE MATTER 1) This action is an adversary proceeding seeking injunctive and declaratory relief and money damages. Plaintiffs K Lazy K Ranch, Inc., Simon Kusser, and Joe Kusser (toge...
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MEMORANDUM PETITION FOR BAD FAITH FINDINGS OF FACT Upon the motion of L.R. Council (“Creditor”), to dismiss the bankruptcy case for bad faith filing with bankruptcy petition, which came before this Court on July 18, 1990, the Court sustains the motion based on the record and the testimony of the Debtor and creditor. According to the Debtor’s testimony, the creditor obtained a state court ju...
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MEMORANDUM OPINION This matter comes before the Court on the motion to assume modified collective bargaining agreements or, alternatively to reject the agreements, filed by Garofalo’s Finer Foods, Incorporated (the “Debtor”). For the reasons set forth herein, pursuant to 11 U.S.C. § 1113(e), the Court hereby extends the July 16,1990 Order for Interim Relief under its terms and conditions ...
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*298 MEMORANDUM OF OPINION AND ORDER This matter came on for trial upon the complaint of Vera Szuch (Plaintiff) to have the Court determine the dischargeability of various debts and obligations contained in an order and journal entry of the Cuyahoga County Court of Common Pleas, Szuch v. Szuch, Case No. 83 D-145467, 1983. Following a trial on the matter, the Court has ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause coming to be heard on July 12, 1990, upon the Objections of The Howard Savings Bank (“Howard”) and the United States Trustee to Debtor’s Disclosure Statement filed April 30, 1990, the Amended Motion to Dismiss of The Howard Savings Bank filed May 11, 1990, Debtor’s Motion for the Court to Abstain pursuant to 28 U.S.C. § 1334(c)(2) filed May 9, 199...
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ORDER GRANTING IN PART AND DENYING IN PART DEBTOR’S “MOTION SEEKING AVOIDANCE OF LIEN” After hearing on motion to avoid lien under 11 U.S.C. § 522(f) and objection thereto, the matter was taken under advisement. Upon consideration of evidence introduced and received, of statements and arguments of counsel, and of the record herein, the Court, pursuant to Bankruptcy Rules 7052 and 9014, fi...
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*381 OPINION AND ORDER Mrs. Jocelyn Edelstein Serrano (the Debtor) borrowed money from the Asocia-ción de Empleados del E.L.A. (the Asocia-ción). She then filed this Chapter 13 petition for bankruptcy and an adversary complaint against the Asociación, Sistema de Retiro del E.L.A. (Retiro) and the Chapter 13 Trustee, requesting the turnover of $3,962.29. According to the complaint...
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MEMORANDUM OF DECISION AND ORDER On January 19, 1990 an evidentiary hearing was held on the Chapter 7 trustee’s objection to Kenneth Layton’s claim of exemption in his interest in a retirement account. C.R. Hannan, the trustee, represented himself. Timothy O’Grady appeared on behalf of the debtors. The matter was considered fully submitted at the close of the hearing. STATEMENT OF TH...
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MEMORANDUM OF DECISION AND ORDER On November 14, 1989 a telephonic hearing was held on the Chapter 7 trustee’s objection to Ronald Gouker’s claim of exemption in a retirement account and on his application for turnover of that property. C. R. Hannan, the trustee, represented himself. Richard D. Crowl, Jr. appeared on behalf of the debtors. At the conclusion of the hearing, the court direc...
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OPINION AND ORDER On April 19, 1989 Amalia Padilla Mendoza filed a motion pursuant to Bankruptcy Rule 3003(c)(3) and 9006(b) requesting leave to file an untimely proof of claim. She alleged as ground for her motion, that due to an “error of form”, two proof of claims (Claim No. 7 and 8) were filed in the individual Chapter 13 case of Debtor’s shareholders Rafael Rodríguez Hernández and Sarah Falcó...
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MEMORANDUM AND ORDER ON MOTION TO DISBURSE PROCEEDS I. On September 28, 1984, Indian Harbor Properties, Inc. (“IHP”), a Connecticut cor *56 poration owned by Showboat Inn, Inc. (“Showboat”), gave Connecticut Bank and Trust Company, N.A. (“CBT”) a $5,000,-000.00 note and a $300,000.00 note which were secured by mortgages of the same date on certain real property owned by ...
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ORDER DENYING LINCOLN NATIONAL LIFE INSURANCE COMPANY’S MOTION FOR RELIEF FROM STAY, MOTION FOR ORDER PROHIBITING USE OF CASH COLLATERAL, MOTION FOR APPOINTMENT OF RECEIVER AND MOTION FOR ORDER DIRECTING SEQUESTRATION OF RENTS/PROFITS AND INSURANCE PROCEEDS This matter came before the court on November 15, 1989, and after the hearing on that date, a temporary Order was entered and the mat...
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OPINION AND ORDER Before the Court is a complaint of the debtor, Reginald D. Rogers (hereinafter “Plaintiff”) requesting determination of dischargeability of debts pursuant to 11 U.S.C. § 523(a)(5) of the Bankruptcy Code. For the reasons provided herein, we find the debts subject to the complaint are non-dischargeable. The facts are as follows. Pursuant to a Separation Agreement dated September 8,...
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OPINION AND ORDER During the hearing on confirmation the Debtors and Mr. Adorno agreed there is no controversy as to the following facts, and asked the Court to solve the controversy without an evidentiary hearing. Accordingly, we now enter the following FINDINGS OF FACT 1. On June 28, 1985 Nilda Rivera Marrero executed a promissory note for the principal sum of $5,000.00 plus i...
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MEMORANDUM OF DECISION AND ORDER On January 4, 1990 an evidentiary hearing was held on the Chapter 7 trustee’s objection to Rita Bartlett’s claim of exemption in a pension plan. Robert D. Taha, the trustee, represented himself. Douglas J. Reed appeared on behalf of the debtors. The matter was considered fully submitted at the close of the hearing. STATEMENT OF THE FACTS 1. On Au...
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MEMORANDUM OF DECISION AND ORDER PURSUANT TO REMAND IN CIVIL NO. 88-157-A I. BACKGROUND On March 23, 1987 Larry D. Reynolds filed a petition for relief under Chapter 12 of Title 11 of the United States Code. The petition was signed by the debtor and his attorney, Marlyn S. Jensen. An Order for Relief was entered on the same day. On June 30, 1987 the Chapter 12 debtor filed his plan of reorg...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having, come before the Court upon the complaint of Wolfdiam, P.V.B.A. (the “creditor”) against Sergio Wainsztein (the “debtor”), pursuant to 11 U.S.C. §§ 523(a)(2), (a)(4), and (a)(6), and §§ 727(a)(2)(A), (a)(3), (a)(4), and (a)(5), and the Court having heard the testimony, examined the evidence presented, observed the candor and demeanor of the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE, having come before the Court on Monday June 11, 1990, at 8:00 A.M. for reconsideration of Trustee, Milton Gene Friedman’s, (hereinafter referred to as “PLAINTIFF”) Renewed Emergency Motion To Strike Defendant’s Pleadings And For Entry Of Default And Final Default Judgment, and the Court having considered all of PLAINTIFF’S previous appli...
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OPINION AND ORDER The Trustee filed an amended complaint to collect $8,661.29 plus interests and costs. The Trustee argues that the defendants are jointly and severally liable for the sums owed. An amended Default Judgment has already been entered against codefendant Mr. Ismael Leandry and an entity called Pavillion Sports Promotions.1 Ramón L. Lloréns Santini, Esq., answered the complaint allegi...
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OPINION AND ORDER Island Finance Corporation objected to the confirmation of the Chapter 13 Plan proposed by Debtors, alleging Debtors were not committing all their projected disposable income to be received during a three year period for payment of their creditors as required by 11 U.S.C. § 1325(b)(1)(B). * The uncontested facts show co-debtor Margarita Santiago Mejias is a teacher employe...
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MEMORANDUM AND ORDER ON APPLICATIONS TO EMPLOY ATTORNEY NUNC PRO TUNC AND FOR INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES ' The debtor seeks the approval nunc 'pro 'tunc of the employment of its attorney, Donald W. Todrin, and Attorney Todrin ;seeks the allowance of $71,850.00 for fees and $2,631.31 for expenses. L On March 28, 1990, the debtor filed a petition...
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MEMORANDUM OF DECISION AND ORDER On November 14, 1989 a telephonic hearing was held on the Chapter 7 trustee’s *986 objection to the debtors’ claim of exemption in a retirement account and on his application for turnover of that property. C.R. Hannan, the trustee, represented himself. Clarence B. Meldrum, Jr., appeared on behalf of the debtors. Linda G. Hanson appeared on beh...
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MEMORANDUM OPINION The matter presently before the court is the Motion for Relief from the Automatic Stay (“Motion”) filed by Mellon Bank, N.A. (“Mellon”). The motion asserts that Mellon is a secured creditor of Tyson Metal Products, Inc., Tafeo, (the “debtor”), with regard to certain funds of the debtor held by the trustee. The trustee’s response to the motion asserts, among other things...
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AMENDED 1 RULING ON APPLICATION OF THE FIRST NATIONAL BANK OF BOSTON FOR REIMBURSEMENT OF COSTS AND EXPENSES PURSUANT TO BANKRUPTCY CODE §§ 506(b) AND/OR 503(b) I. ISSUE In this chapter 11 case, the estate trustee entered into a contract dated November 10, 1989, approximately three months after the filing of the bankruptcy petition, to sell the debtor’s entire busines...
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DECISION RE MOTION FOR RELIEF FROM ORDERS Joyce Jane Nelson (“Nelson”), the personal representative of the estate of the now deceased plaintiff Thomas Ware (“the debtor”), seeks relief under F.R.Civ.P. 60(b)(5) to reopen the final orders in this adversary proceeding to obtain instead affirmative relief against Philip N. Barnes (“Barnes”) that was not previously sought. Because she does not contest...
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MEMORANDUM OPINION This Chapter 11 case came on for hearing of the United States Trustee’s motion to dismiss or convert the case. The motion, brought pursuant to 11 U.S.C. § 1112(b), alleges that the debtor failed to file monthly operating reports for the months of February through May of 1990; that the reports filed reflect that the debtor has no income, no expenses, and no employees; that the...
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MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFFS’ COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT This controversy is before the Court on the Plaintiffs’ complaint to determine the dischargeability of a debt comprised of sales taxes due more than three years prior to the filing of their bankruptcy petition. This is a core proceeding in accordance with 28 U.S.C. § 157(b)(2)(l). The following c...
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AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION TO DISMISS On July 6, 1990, a joint hearing was held on two Motions to Dismiss filed by the United States of America. One motion was filed in the subject cause, Case No. 88-00461, and the second motion was filed in Case No. 88-00781, Jo Paul Rognstad and Associates, Inc. The instant Findings of Fact and Conclusions of Law deal onl...
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DECISION ON MOTION TO COMPEL TURN OVER OF FUNDS This proceeding which seeks a turn over, pursuant to 11 U.S.C. § 725, of certain trust funds currently held by the trustee was brought by Highway Safety Design and Fabrication Corporation (“Highway”), a creditor with a valid, perfected, public improvement mechanic’s lien as to the funds. These trust funds arose from a public improvement contract ent...
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DECISION ON ORDER TO SHOW CAUSE FOR A DETERMINATION AS TO THE DEBTOR’S CONVEYANCES OF RIGHTS WITH RESPECT TO CERTAIN PROPERTY The individual debtor in this confirmed Chapter 11 case, like the principals in the movie “The Producers”, has granted interests greater than 100% in the same property to several parties. One of the recipient parties, Agustín Rodriguez, now seeks a post-confirmatio...
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MEMORANDUM The issue is whether an oversecured mortgage holder is entitled to a higher default interest rate on unpaid installments of principal and interest where the confirmed Chapter 11 plan provides for cure of *339 the prepetition default and reinstatement of the original mortgage terms. The default interest rate is not applicable. The debtor owns an apartment compl...
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MEMORANDUM OF OPINION ON CONSULTING AGREEMENT BarclaysAmerican/Leasing (Barclays) objected to Debtors’ claim of exemption to income received by Lang C. Martin, Jr. pursuant to a Consulting and Non-Competition Agreement. Mr. Martin brought this adversary proceeding to determine the extent and priority of the lien asserted by Barclays on the income from the consulting agreement. The Trustee...
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ORDER REGARDING ASSIGNMENT OF CLAIMS Debtors Don and Elizabeth Johnson filed their Chapter 11 petition commencing this bankruptcy in 1982. Their plan of reorganization, providing for full payment to all creditors, was confirmed in 1984. In June, 1985, the debtors converted their case to liquidation proceedings under Chapter 7. At that time, they stated that they could not continue making the payme...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on the Adversary Complaint of Plaintiff Joy Evans (“Evans” or “Plaintiff” herein), filed against the Defendant/Debtor Ronald *634 Lee Dunston (“Dunston” or “Defendant” herein), seeking to have her claim as a creditor excepted from discharge pursuant to Section 523(a)(2) of the Bankruptcy Code. This case pres...
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MEMORANDUM OPINION I. Introduction Plaintiffs Brockman Music, Almo Music Corp., and Jodaway Music (the Music Companies) brought this adversary proceeding alleging that the debt owed them by defendant William Lee Watson, a debtor in bankruptcy 1 , is nondischargeable under 11 U.S.C. § 523(a). 2 The Music Companies are seeking summary judgment against Mr. Watson...
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OVERVIEW This appeal concerns a “Manufacturer’s Financing Agreement” (“the Agreement”) between the debtor and Transamerica Commercial Finance Corporation (“Trans-america”). 1 The Agreement was part of a pre-petition “floor financing” plan under which Transamerica financed certain of the debtor’s customers’ boat purchases from the debtor. The bankruptcy court granted Transamerica...
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ORDER The hearing on the motion of the Debt- or-In-Possession to extend the time to assume six commercial leases pursuant to 11 U.S.C. Section 365(d)(4) was called on August 9, 1990. One written objection was filed on behalf of two of the lessors, Burger King Corporation and Burger King Limited Partnership II. In addition to Counsel for the Debtor and Counsel for the objecting Lessors, the foll...
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DECISION Between March 20, 1987 and March 14, 1990, the debtor filed five separate petitions for relief under the United States Bankruptcy Code. Each case created the automatic stay of 11 U.S.C. § 362. Each case was also dismissed; the most recent dismissal carrying with it the prohibition that debtor shall not be eligible for relief under any Chapter of Title 11 for a period of one year....
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MEMORANDUM OPINION This matter comes before the court on the motion of James A. Chatz, Trustee of the Arnold May and Margaret M. May (collectively “Debtors”) estate, for summary judgment against the Hawthorn Corporation and John E. Cuneo (collectively “Cu-neo”). The Trustee filed a three-count complaint against Cuneo and now moves for summary judgment on Count I, an action in trespass. For the re...
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ORDER APPROVING DEBTOR’S MOTION FOR APPROVAL OF ASSET PURCHASE AGREEMENT BY AND BETWEEN RIVER CITY TELEVISION PARTNERS, L.P. AND CHANNEL ONE COMMUNICATIONS, INC. This matter coming before the Court upon the Motion for Approval of Asset Purchase Agreement by and between River City Television Partners, L.P. and Channel One Communications, Inc. (the “Sale Motion”). This Court having previous...
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MEMORANDUM OPINION The United States Trustee has moved to convert or dismiss this confirmed chapter 11 case pursuant to 11 U.S.C. § 1112(b). The U.S. Trustee has requested that this case be converted to a case under chapter 7, rather than dismissed, so that a trustee can investigate the Debtor’s activities and determine whether it owns any assets “which could be liquidated for the benefit...
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MEMORANDUM OF DECISION I. INTRODUCTION This contested proceeding raises the issue of whether a landlord may enforce a clause in a long-term commercial lease, that provides for an increase in the rent from the contract rate to a market rate upon assignment of the lease, at the time that the debtor assumes and assigns the lease pursuant to Bankruptcy Code § 365, 11 U.S.C.A. § 365 (West...
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MEMORANDUM OPINION Debtor herein filed a petition for relief under Chapter 7. The only substantial debt listed by debtor was an unsecured obligation shown as due to his ex-father-in-law, Everett Reed as the Personal Representative of Marsha Peck. Debtor and Marsha Peck, then Marsha Prettyman, were divorced on April 13, 1973. Marsha Peck was awarded custody of the three minor children and debtor...
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DECISION ON OBJECTION TO DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(4)(A) and (B) This is an objection to discharge pursuant to Section 727(a)(4)(A) and (B) of the Bankruptcy Code (“Code”), 11 U.S.C. § 727(a)(4)(A) and (B), by James MacLeod (“Plaintiff”) against the Debtor, Gabriel A. Arcuri, Jr. (“Debtor”). Plaintiff is a disputed unsecured creditor holding a claim in the amount of $15,000...
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MEMORANDUM OF OPINION AND ORDER I. The matter before the Court is the motion of The Cannon Group, Inc. (Cannon) to dismiss the above-styled adversary proceeding as it was commenced after the applicable statute of limitation defined in 11 U.S.C. § 546(a). Upon review of the pleadings, arguments of counsel and the record, generally, the motion is hereby granted. II. On April 22, 1987 Cook U...
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OPINION The facts in this matter are not disputed, and the Plaintiff and the Defendant filed cross Motions for Summary Judgment. The Debtor’s mother and father (PARENTS) were indebted to the Defendant. They wanted to borrow additional funds secured by their residence, but could not, as such additional borrowing would exceed the Defendant’s internal lending limits. The Defendant’s then manager s...
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MEMORANDUM OF OPINION AND ORDER This matter is a preference action which is before the Court upon the parties' cross-motions for summary judgment. Following a hearing, a review of the pleadings and the record generally, the Plaintiff’s motion for summary judgment is hereby granted, and the Defendant’s motion for summary judgment is hereby denied. In this Chapter 7 proceeding, Robert ...
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DECISION ON MOTION TO DEEM LATE CLAIMS TIMELY FILED This is a joint motion filed April 25, 1989 by Marion Bopp, Kurt Winner and Marie Winner (“movants”) seeking to have their late filed proofs of claim deemed timely filed. Marion Bopp filed an unsecured *774 claim on April 21, 1989 in the amount of $76,000.00 (claim # 186). Kurt Winner and Marie Winner filed a joint unsecured...
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DECISION ON MOTION TO RECONSIDER This decision addresses the appropriate rate of interest to award to an oversecured creditor under Section 506(b) of the Bankruptcy Code. The creditor wants the court to look to the contract and apply the applicable rate based on that agreement. The creditor adds that, because the debtor was in default when the bankruptcy was filed, the applicable rate is ...
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MEMORANDUM OPINION Plaintiffs Central Fidelity Bank (“CFB”) and Virginia First Savings Bank F.S.B. (“VFSB”) filed separate complaints against the debtor to except debts from discharge pursuant to 11 U.S.C. § 523(a). Since the factual patterns relied upon by the plaintiffs were similar, all parties agreed to a consolidated trial which was held on January 16 and 17, 1990. At trial plaintiff...
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DECISION AND ORDER ON JOINT MOTION OF DEBTOR AND THE UNITED STATES OF AMERICA FOR DETERMINATION OF THE ASSUMPTION OR REJECTION OF EXEC-UTORY CONTRACTS This case involves the ability of a chapter 11 debtor in possession to assume an exec-utory government contract. It requires construction of 41 U.S.C. § 15 (which prohibits the transfer of a government contract without the consent of the Un...
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OPINION The debtor appealed an adverse judgment under § 523(a)(2) 1 for a debt incurred by fraud and § 523(a)(4) for defalcation or fraud by a fiduciary, arising from his role in the plaintiff/creditor’s real estate investments. We affirm. FACTS Debtor and appellant Eric Woosley was a real estate agent licensed by the State of California. He also engaged in purchasing...
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OPINION The United States appeals the bankruptcy court’s order awarding attorneys’ fees and costs to the debtor for willful violation of the automatic stay under § 362(h). We affirm. FACTS The facts in this case are undisputed. Ms. Bulson, the debtor, filed her Chapter 13 petition on May 3, 1985. The debtor listed the IRS as a priority creditor with $1,000 of the claim being sec...
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MEMORANDUM OPINION The Debtor, Hoyt’s, Inc., dba Etchings (the “Debtor") filed a voluntary Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Northern District of West Virginia on December 4, 1989. The Debtor listed only one secured creditor, the First National Bank of Morgan-town (“FNBM”), on its schedules. By order dated January 5, 1990, there was a determinatio...
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MEMORANDUM OPINION In this adversary proceeding plaintiff Diana E. Mueller, chapter 7 trustee, seeks to sell certain real property free and clear of liens and interests under § 363(b) and (h) of title 11, United States Code (“Bankruptcy Code” or “Code”), and to determine the validity, priority and extent of liens. The subject property, commonly known as 1420 Shafto Road, Tinton Falls, New...
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MEMORANDUM OPINION In the present case, several matters are before the Court: 1) a motion, to reconsider this Court’s sua sponte order of partial distribution of certain assets; 2) several motions for fees; 3) a motion for payment of secured claim by creditor Twin City; and 4) a request for distribution of proceeds. Several Motions filed have been duplica-tive. Consequently, the Court...
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MEMORANDUM OPINION Plaintiffs filed a Complaint against defendants for turnover of property pursuant to section 542 of the Code. They sought the turnover of a bulldozer and excavator which defendants repossessed on April 27, 1990 prior to the chapter 11 filing. A hearing was held on June 27,1990 after which I made a bench ruling that the repossession was unlawful and ultimately entered an...
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MEMORANDUM AND ORDER RE: TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION I. ISSUE On January 3, 1990, Aaron H. Spandorf (“debtor”) filed a voluntary petition under chapter 7 of the Bankruptcy Code. The debtor elected the state exemptions on Schedule B-4 and, pursuant to Conn.Gen. Stat. § 52-352b(m), claimed his Individual Retirement Account fund (IRA) with a value of $5,752.71 deposite...
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DECISION This matter is before the Court pursuant to a motion by Westway Motor Inn, Inc. (hereinafter “Westway” or the “creditor”) seeking an Order of this Court directing Tri-Way Security and Escort Service, Inc. (hereinafter “Tri-Way” or “Debtor”) to pay to Westway the sum of $76,608, together with interest, in satisfaction of both pre-petition and post-petition debts incurred by the De...
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MEMORANDUM AND ORDER RE: DEBTOR’S MOTION TO DISALLOW CLAIM I. ISSUE The contested matter before the court in this chapter 11 case is the debtor’s objection to a claim for $6,000.00 filed by the Town of Stafford, Connecticut (Town). The Town asserts as the ground of the debtor’s liability the provisions of § 8-270 of the Connecticut Uniform Relocation Assistance Act (URAA). See Conn.Gen.Stat. § 8-2...
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MEMORANDUM OPINION The matter presently before the court is the debtor’s 1 motion to confirm its plan of reorganization and the objections of various parties to confirmation. The court confirms the plan of reorganization, subject to the conditions and limitations set forth below. Intertwined with the motion to confirm is the Debtor’s Motion Under Bankruptcy Code Section 1126(e)...
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MEMORANDUM At a hearing held May 17, 1990 on the trustee’s final report and account and proposed order of distribution, the court, sua sponte, raised the issue of whether the U.S. Trustee quarterly fees and clerk’s Chapter 11 costs maintain their § 507(a)(1) priority in a case converted from Chapter 11 to Chapter 7 of the Bankruptcy Code. We afforded the U.S. Trustee an opportunity to submit a ...
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MEMORANDUM OPINION Debtor, C Tek Software, Inc., initiated an adversary proceeding against certain creditors to determine the validity, extent, or priority of certain liens. This court has jurisdiction under 28 U.S.C. § 157(b)(2)(E), and the general reference order dated February 11, 1985 by the U.S. District Court for New Hampshire. A trial was held on February 12 and March 7, 1990, oral...
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MEMORANDUM DECISION The material facts are not in dispute. At all relevant times debtors James and David Carley have been the owners of the Sauk County farm which is the subject of this litigation. In the Fall of 1989 a portion of the farm was sold, under court order, with liens attaching to the $125,000.00 sale proceeds. The remaining portion of the farm is still titled in the Carleys’ n...
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OPINION A. INTRODUCTION The instant proceeding is before us on a motion by the former Debtor in this involuntary bankruptcy case, International Mobile Advertising Corp. (“IMAC”), for the imposition of damages, pursuant to 11 U.S.C. §§ 303(i)(l), (2), against the sole petitioning creditor, Stanton Miller (“Miller”); and for monetary sanctions against Miller and his counsel, Richard L....
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AMENDED ORDER ON GLENDALE FEDERAL BANK’S MOTION TO DISMISS, MOTION FOR RELIEF FROM AUTOMATIC STAY, AND MOTION TO PROHIBIT USE OF CASH COLLATERAL THIS CAUSE came on for final evidentiary hearing upon Glendale Federal Bank’s consolidated Motions to Dismiss, for Relief from Automatic Stay, and to Prohibit Use of Cash Collateral. This Court has previously awarded adequate protection in the fo...
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MEMORANDUM REGARDING RIGHT TO RENT On January 30, 1990, representatives of the Bank of New England (“Bank”) entered on the property of this debtor and seven other trusts and posted a notice that, in accordance with its mortgage and the assignment of rents, it was entering and taking possession- and that, henceforth, rents should be paid to it through its managing agent, Niles Management C...
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OPINION A. INTRODUCTION Before us in the above-captioned, long-pending Chapter 11 bankruptcy case are Objections of Richard J. Micheel (“Mi-cheel”), the former President and an alleged creditor of the Debtor, PHILADELPHIA MORTGAGE TRUST (“the Debtor”), to the Third Amended Proof of Claim (“the Fourth Claim”), filed by Donald R. Sarp (“Sarp”). Sarp contends that his claim of $47,326.6...
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MEMORANDUM OPINION By an adversary proceeding filed in this court, the debtor seeks a declaration that the defendant, Amquip Corporation, holds an unsecured claim and not a secured claim. The debtor contends that any lien on estate property currently held by the defendant should be avoided as preferential. Amquip disagrees; it asserts that it holds a valid nonpreferential lien. The facts ...
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ORDER CONFIRMING PLAN This case came on for confirmation of the debtor’s plan dated March 26, 1990. Arthur C. Benson appeared for the debtor. Steven R. Hedges appeared for Charles O. Martin and Daniel R. Pates. Katherine A. Constantine appeared for Lowell W. Heller-vik. 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....
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DECISION ON MOTION FOR SUMMARY JUDGMENT AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT Terminal Construction Corporation (“Terminal”), a defendant in an adversary proceeding commenced by the Chapter 11 debtor, Mercury Masonry Corporation (“Mercury”), has moved for summary judgment dismissing the debtor’s complaint on the basis of signed, notarized releases issued by the debtor as a precondition to ...
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MEMORANDUM DECISION DENYING DEBTOR’S MOTION TO SET ASIDE SETTLEMENT ORDER THIS CAUSE came before the Court on June 26, 1990 on Debtor’s Motion to Set Aside Settlement Order. PROCEDURAL BACKGROUND Plaintiff, Gerard A. McHale, as Court-appointed Administrator of Ashley Financial Corporation (“McHale”), filed a proof of claim on April 24, 1989 in the amount of $7,000,000.00. McHale had previou...
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Order Partially Granting Motion to Dismiss Bankruptcy Proceeding and Denying Confirmation of Statement of Debtor’s Plan, and Providing Further Relief to Secured Creditor Northern Trust This case having been brought before the Court on May 22, 1990, at 1:00 p.m. (at the conclusion of the 10:00 a.m. motion calendar) on the Chapter 13 Plan of the Debtor (the “Plan”) filed March 16, 1990, pursuant to ...
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*734 ORDER DENYING DEBTORS’ AMENDED MOTION TO VALUE REAL PROPERTY, TO DETERMINE SECURED STATUS AND TO AVOID LIEN AND DENYING DEBTORS’ OBJECTION TO ALLOWANCE OF CLAIM This matter came before the Court on July 5, 1990 upon the Debtors’ Amended Motion To Value Real Property, To Determine Secured Status and To Avoid Lien and upon the Debtors’ Objections to Allowance of Claim with respect to Cross...
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ORDER GRANTING SOUTH BAY GROWERS, INC. TO OBTAIN FUNDS COLLECTED BY TRUSTEE THIS MATTER came on before this court on January 31, 1990, upon motion by South Bay Growers, Inc., (South Bay) to obtain funds collected by Trustee; for turnover of property not part of Debtor’s estate; and for possession of trust corpus and interests including costs. The relevant facts are not in dispute. Atlanti...
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MEMORANDUM DECISION AND ORDER OVERRULING CROSSLAND MORTGAGE CORPORATION’S OBJECTIONS TO CONFIRMATION OF DEBTORS’ CHAPTER 13 PLAN Crossland Mortgage Corporation’s Objections to Confirmation of Debtors’ Chapter 13 Plan came before the Court on April 10, 1990 at the hearing on confirmation of the debtors’ first amended Chapter 13 plan. The debtors and counsel for the debtors, counsel for Cro...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW BACKGROUND This cause came on before the Court for trial on October 25 and 26, 1989. The trial was continued to January 3, 1990, then to March 29, 1990, and was concluded on March 30, 1990. The Court, during the course of trial heard witnesses from both sides, accepted legal arguments from counsel for each of the parties and, received numerous exhibits into...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS MATTER having come before this Court on April 3, 1990 at 1:30 o’clock p.m., on the bifurcated trial in this cause, on the Defendant/Counter-Plaintiffs, JAMES FOX MILLER, MILLER & SCHWARTZ, P.A., n/k/a MILLER, SCHWARTZ & MILLER, P.A., (hereinafter referred to as “MILLER”) and MARJORIE LOIS GEPF-RICH’s (hereinafter referred to as “wife”) counterc...
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ORDER DENYING PEDRO LOPEZ’S MOTION TO IMPOSE RULE 11 SANCTIONS THIS CAUSE came on to be heard before this court on Wednesday, June 23, 1990 on PEDRO LOPEZ’S (LOPEZ) Motion to Impose Rule 11 (Bankruptcy Rule 9011) Sanctions Against INDUSTRIA DE GA-NADEROS GUATEMALTECOS, S.A. (IGG) and Richard M. Goldstein (GOLD-STEIN), and this court having heard argument of counsel, including counsel for the Trus...
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MEMORANDUM OPINION The matter presently before the court is a motion by TS Industries, Inc. (“TS”), seeking approval of its rejection of a contract (“Motion to Reject”) which is commonly referred to by the parties as the “FORNCO Agreement.” A hearing was held on June 25, 1990. Noel S. Hyde, Esq. and Steven F. Allred, Esq. appeared on behalf of TS. Anna W. Drake, ■ Esq. appeared as special...
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AMENDED ORDER RE: DIP’S MOTION FOR JUDGEMENT ON THE PLEADINGS THIS MATTER came before the court on the 18th day of December, 1989, on the motion of the Debtor-In-Possession (DIP) for judgment on the pleadings against CNA, its sureties. On May 24, 1990 the court entered an order denying judgment on the pleadings, docketed at CP 136. On June 5, 1990 the DIP filed a Motion to Amend Orders or Moti...
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ORDER ON OBJECTION TO APPLICATION FOR FINAL COMPENSATION BY ATTORNEY FOR TRUSTEE In this chapter 7 case, the assets of this estate have been fully administered, and all claims have been adjudicated. Gui L.P. Govaert, chapter 7 trustee and Steven Friedman, attorney for the trustee (“Applicant”), have both filed final fee applications. It is the fee request of the attorney for the trustee (...
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MEMORANDUM The hearing to consider the Debtor’s Motion For Approval of Sale Of Debtor’s Assets And Assignment Of A Lease was called on August 17, 1990. The Debtor’s evidence included testimony from its General Sales Manager and from the prospective purchaser. Other evidence was presented on behalf of First Extended Service Corporation, listed by the Debtor as the holder of an unsecured cl...
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MEMORANDUM OPINION This matter comes before the court on the motion of the defendant, Cheryl F. Kroner, to dismiss the adversary complaint filed by David R. Herzog, the appointed trustee in this case. For the reasons set forth herein, the court, after considering all of the pleadings, memoranda and exhibits, hereby grants the motion to dismiss. I. FACTS AND BACKGROUND On July 26, 1988, Dennis R. K...
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ORDER STRIKING DEBTORS’ PAPERS THESE CAUSES came on for consideration of papers signed by the debtors’ attorney and filed in each of these cases on February 14, 1990. In the first captioned case, the paper is a notice of change of address; in the second captioned case, it is an objection to motion for relief from stay; in the third captioned case, it is a stipulation for a valuation; and in the fo...
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DECISION AND ORDER Heard on May 1, 1990, on the Motion of Acorns Ltd. for Relief from the Automatic Stay, and on the objection 1 of seven franchisees 2 . The franchisees’ initial basis for objection is that Acorns does not have a properly perfected security interest in the collateral 3 . On this specific point, we requested memoranda of law addressing Uniform Commercial Code requirement...
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DECISION AND ORDER Heard on March 13, 1990 on the Motion of the lessor, Landmark Medical Center, requesting a determination that it is not subject to the provisions of the automatic stay, § 362, and to compel the debtor to vacate and surrender the property known as Pub Dennis, at Old Louisquisset Pike, North Smithfield, Rhode Island. After hearing, counsel were requested to, and did, submit memora...
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DECISION AND ORDER GRANTING DEBTOR’S COMPLAINT FOR PRELIMINARY INJUNCTION Heard on June 15, 1990 on a combined hearing on the debtor, Wilner Wood Products Co.’s, Complaint for Temporary Restraining Order and Preliminary Injunction, wherein Wilner seeks to stay the effective-néss of a May 11, 1990 1 order issued by the State of Maine, Department of Environmental Protection (“DEP...
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DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS Before the Court is the State of Maine, Department of Environmental Protection’s (“DEP”) Motion to Dismiss the Complaint of the debtor, Wilner Wood Products Co. (“Wilner”). In this adversary proceeding, the debtor seeks an order of the Bankruptcy Court staying the effectiveness of a May 15, 1990 DEP Order denying the debt- or’s applicati...
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OPINION Debtor appeals from an order denying his motion to dismiss a dischargeability complaint filed by appellees pursuant to 11 U.S.C. § 523(c). 1 The motion alleged that the complaint was untimely under Bankruptcy Rule 4007(c). FACTS Appellees obtained two orders extending the 60 day limitations period set forth in Rule 4007(c). The first extension was obtained bef...
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ORDER APPROVING IN PART AND DENYING IN PART APPLICATION FOR AWARD OF ATTORNEYS FEES FOR GORDON & SILVER, LTD. FACTS On August 28, 1989, Ginji Corporation, dba The Aladdin Hotel & Casino (The Aladdin) filed its chapter 11 bankruptcy petition. Gordon & Silver, Ltd. (G & S) was authorized to be employed as debtor’s counsel pursuant to an order entered on September 1, 1989. On September ...
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DECISION AND ORDER Heard, most recently, on July 25, 26 and 31, 1990, on the Motion of the U.S. Trustee for the appointment of a Chapter 11 Trustee, and also on the Motion of Eastland Bank for various forms of relief that are specified in detail in its lengthy motion. The dubious travel of this case began, in this Court, 1 on November 8, 1989, when an involunt...
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MEMORANDUM OPINION AND ORDER This matter comes on before the Court pursuant to the September 13 and 14, 1989, hearing on plaintiff, Thomson McKinnon's Complaint objecting to the defendants Ronald Eugene Hiegel and Jeanne Lynn Hie-gel’s discharge under § 727 of Title 11 of the United States Code. The plaintiff Thomson McKinnon Securities, Inc. appeared by and through its attorneys, Michael H. Be...
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MEMORANDUM DECISION ON MOTION TO DISMISS AND FOR SUMMARY JUDGMENT INTRODUCTION On May 15, 1990, AP Industries, Inc. (the “Debtor”) commenced the adversary proceeding herein (the “Adversary Proceeding”) against a creditor SN Phelps & Company, (“Phelps”), Phelps’ attorney I. Walton Bader, and the law firm Bader & Bader (together, “Bader”) (collectively, the “Defendants”) seeking relief...
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MEMORANDUM DECISION Mylene Liggett (“Debtor”) acting pro se filed a second petition under Chapter 11 of the Bankruptcy Code on February 13, 1990. The present Chapter 11 petition was filed only a month after the expiration of the 180 day period during which the Debtor was ineligible to refile. See Bankruptcy Code § 109(g)(2). The Debtor’s prior Chapter 11 case had bee...
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OPINION A. INTRODUCTION The instant adversary proceeding consists of Objections of a plaintiff-debtor, MARGARET A. KENDERDINE (“the Debtor”), to a “claim” for arrears on an obligation secured by a mortgage on the Debtor’s home held by the Defendant, PO-LONIA FEDERAL SAVINGS AND LOAN ASSOCIATION (“the Defendant”). One aspect of the Objections, seeking a $1,000 recoupment of statutory ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE MOTION OF MILTON SCHRAIBER PURSUANT TO RULE 60(b) TO VACATE ORDER DATED FEBRUARY 17,1988 DENYING DISCHARGE This cause came on to be heard upon Debtor’s Motion to Vacate Order Dated February 17, 1988 Denying Discharge Pursuant to Rule 60(b) (“the Motion”) filed by Milton Schraiber, initially pro se, and later through his counsel, Jo...
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MEMORANDUM OPINION ON MOTION FOR RULE TO SHOW CAUSE Ricardo and Olivia Torres (“Debtors”) filed their joint voluntary petition for relief *381 in this case under Chapter 7 of the Bankruptcy Code. This Court issued an order of discharge in Debtors’ case dated July 26, 1988. On July 21, 1989 Ricardo Torres (“Torres”) filed a motion for issuance of a rule against the State of Il...
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*465 MEMORANDUM OPINION REGARDING EMERGENCY MOTION OF NEW YORK LIFE FOR RELIEF PURSUANT TO BANKRUPTCY RULE 8005 On July 20, 1990, this Court entered an order (the “Order”) which denied the Motion of New York Life Insurance Company and New York Life Insurance and Annuity Corporation (“New York Life”) requesting authority to commence suit derivatively on behalf of Reveo against various LBO part...
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DECISION ON MOTION FOR AN ORDER TERMINATING DEBTOR’S EXCLUSIVE PERIODS Various creditors, including Grossinger Development Corporation (“GDC”), Lloyds Bank PLC (“Lloyds”) and Hokkaido • Ta-kushoku Bank, Ltd. (“Hokkaido”) have moved for an order terminating the debt- or’s exclusive periods to file a plan of reorganization and solicit acceptances thereto pursuant to 11 U.S.C. § 1121(b), and...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO COMMENCE SUIT FILED BY NEW YORK LIFE INSURANCE COMPANY On July 20, 1990, a hearing was held in this Court on the “Motion of New York Life Insurance Company and New York Life Insurance and Annuity Corporation for Authority to Commence Suit Derivatively on Behalf of Reveo Against Various LBO Participants, and for Relief from the Automatic...
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MEMORANDUM OPINION Before the Court is a motion by The Union National Bank of Pittsburgh (“UNB”) to dismiss this adversary action due to lack of subject matter jurisdiction. UNB contends that the dispute between it and Mellon Bank, N.A. (“Mellon”) neither arises in nor arises under a case under title 11 and that this adversary action consequently is not a core proceeding pursuant to ...
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MEMORANDUM DECISION AND ORDER DENYING STAY PENDING APPEAL The Debtor seeks from this court a stay pending appeal from this court's memorandum decision of July 12, 1990 and accompanying order which lifted the automatic stay. As familiarity with that decision is assumed, this court will not restate the facts set forth there and will use all terms defined there hereafter for consistency. ...
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MEMORANDUM OPINION The above-captioned Claimants have filed proofs of claim seeking severance pay in varying amounts from Debtor. Claimants assert that Debtor had a policy at the time they were placed on permanent layoff which provided severance pay for salaried employees in accordance with a prescribed formula. They further contend that all of the severance pay to which they are entitled was...
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*598 MEMORANDUM OPINION This matter comes before the Court on the application of Thomas E. Raleigh (the “Trustee”), pursuant to 11 U.S.C. §§ 326, 330, and 331 and Federal Rule of Bankruptcy Procedure 2016, for allowance of final compensation as Chapter 11 Trustee in the amount of $502,148.62 and reimbursement of expenses in the sum of $1,736.11. Proper notice was given to all cre...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTION TO CLAIM OF VILLAGES OF BEAR CREEK OWNERS ASSOCIATION Following are the Court’s findings of fact and conclusions of law pursuant to Bankruptcy Rule 7052, with respect to the hearing on June 18, 1990. Findings of Fact 1. This proceeding relates to the bankruptcy case of Packard Properties, Ltd. (“Debtor”), Case No. 388-3322...
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MEMORANDUM I. INTRODUCTION New Commonwealth Publishing Company, Inc. (“New Commonwealth” or the “Debtor”) commenced the above-captioned adversary proceeding against BayBank Middlesex (“BayBank” or the “Bank”) on November 3, 1989. The Debtor filed an amended complaint on February 28, 1990. That complaint is presently the subject of cross-motions for summary judgment. II. FACTS ...
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ORDER ON MOTION FOR RETURN OF RENTAL INCOME THE MATTER under consideration is a Motion for Return of Rental Income filed *127 by Government National Mortgage Association (GNMA) against Tampa Bay Briar-wood Associates Ltd., d/b/a Bay Pointe Apartments, p/d/b/a Briarwood Apartments (Debtor), its general partner, Equity Investment Associates-B (Equity), a Mississippi partnership, and Equity’s ge...
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MEMORANDUM Telephonic hearing was held on April 20, 1990, regarding the trustee’s objection to the debtors’ claim of exemptions (Filing No. 35). The debtor, David Nuttleman (debtor) appeared pro se. Richard Myers appeared as the trustee. Jim Carney, of Scottsbluff, Nebraska, appeared on behalf of Gering State Bank. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § ...
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ORDER GRANTING “MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM" OF DUN-HILL OF SOUTH TULSA, INC. On June 27,1990, Dunhill of South Tulsa, Inc. filed its “Motion for Allowance and Payment of Administrative Claim.” On July 11, 1990, Patrick J. Malloy III, Trustee, filed his “... Objection ...” thereto. At hearing on August 3, 1990, evidence was introduced and received, and the Cou...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Following are the Court’s findings of fact and conclusions - of law pursuant to Bankruptcy Rule 7052, with respect to the trial on May 15, 1990. Findings of Fact 1.This proceeding relates to the bankruptcy case of D.E. Brown (“Debtor”), Case No. 388-33220 RCM-7, pending in the United States Bankruptcy Court for the Northern District of...
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OPINION A. INTRODUCTION Before us is a Complaint filed by ANTHONY STENDARDO and LORETTA STENDARDO, the Debtors in the underlying joint Chapter 13 case, commenced on February 10, 1989 (“the Debtors”), objecting to the secured proof of claim filed in this case by the Defendant, FEDERAL NATIONAL MORTGAGE ASSOCIATION *834 (“FNMA”). The parties have filed a Stipulation of Fac...
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MEMORANDUM OPINION This matter came before the Court on plaintiffs’ complaint to determine dis-chargeability of debt filed April 16, 1990, and defendants’ motion to dismiss filed May 16, 1990. The parties agreed to submit a stipulation of facts and legal memo-randa for the Court’s consideration. Having considered the documents submitted by the parties, having consulted the proper authorities and ...
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MEMORANDUM OPINION Following are the Court’s findings of fact and conclusions of law under Bankruptcy Rule 7052, with respect to the trial on June 28, 1990. This is an 11 U.S.C. § 523(a)(2)(B) complaint to determine dischargeability of debt filed by Founders Bank of Arizona (“Plaintiff”) concerning its claim. Plaintiff contends that its claim, in the amount of $169,-476.06 is non-dischargeabl...
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*722 MEMORANDUM Trial of this adversary proceeding was held on November 14 and 15, 1989. Edward Tricker and James Overcash of Woods & Aiken located in Lincoln, Nebraska, appeared on behalf of the plaintiff. William Hadley and Bradley White of Andersen, Berkshire, Lauritsen, Brower & Hadley located in Omaha, Nebraska, appeared on behalf of defendant. Following trial, the Court req...
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MEMORANDUM OPINION This matter comes on to be heard upon the motion of the Debtor, Robert E. Hutton (“Hutton”), to dismiss the complaint of Pacific-Midwest Gas Company, debtor-in-possession, plaintiff (“Pacific-Midwest”), asking that the claim of Pacific-Midwest against Hutton be declared nondischargeable under § 523(a)(4) of the Bankruptcy Code. Said section states as follows: A dis...
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MEMORANDUM OPINION AND ORDER REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT At issue in this core proceeding 1 is whether a debt arising from a state court default judgment may be excepted from the debtor's general discharge pursuant to 11 U.S.C. § 523(a)(2), (a)(4) and (a)(6) by application of the doctrine of collateral es-toppel. The...
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MEMORANDUM OPINION AND ORDER This adversary proceeding arose after the filing of a motion by the Trustee to sell property free and clear of liens, the objection of the Commodity Credit Corporation (“CCC”), testimony and proof taken in regard to that motion, and the Court’s entry of an order permitting, under certain conditions, the Trustee to sell property subject to CCC’s claimed interests fre...
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MEMORANDUM OPINION Before the court is a dispute concerning the priority status of severance pay claims filed by six former full-time, salaried employees of Allegheny International, Inc. (“AI” or the “Debtor-in-Possession”). AI argues that only the portion of the severance claims earned post-petition is entitled to administrative priority. In contrast, the employees maintain that their en...
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ORDER I. Introduction. The Plaintiffs Ralph H. Imholte and Judith L. Imholte (Imholtes) filed a Chapter 7 petition on June 6, 1989, and subsequently filed this adversary proceeding against the Internal Revenue Service on July 10, 1989, seeking a determination of the validity of 940 and 941 employee withholding taxes assessed against them for the years 1984, 1985 and 1986 by the Defen...
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MEMORANDUM OPINION AND ORDER ON APPLICATION FOR INTERIM COMPENSATION OF ACCOUNTANT FOR TRUSTEE This core proceeding 1 came on to be heard on March 19, 1990, upon the notice of hearing for an application to pay interim compensation to the trustee’s accountant, Holtz & Company, Certified Public Accountants of Miami, Florida. The application (C.P. No. 704) 2 seeks appro...
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OPINION The Debtor is an Illinois Limited Partnership which owned and operated an apartment complex in Bloomington, Illinois. The Debtor had obtained the apartment complex pursuant to an Agreement for Warranty Deed entered into with several individuals (Contract Sellers). Prior to the Contract Sellers transferring ownership to the Debtor, they had mortgaged the apartment complex and had incurred ...
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MEMORANDUM OPINION First Fidelity Bank, N.A., North Jersey (hereinafter “FFB”) has moved for a declaration of rights in the proceeds of sale of certain assets of the debtor. Movant FFB and respondent MDFC Equipment Leasing Corporation (hereinafter “MDFC”) both claim entitlement to said proceeds. There are two issues. The first issue is whether FFB is estopped from claiming such entitlement. If ...
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MEMORANDUM OP OPINION AND DECISION Before the Court is the Trustee’s objection to the claim of the Internal Revenue Service, Claim # 55, in the amount of $1,583.21. Trustee alleges the claim was not timely filed. The matter is submitted on stipulations and briefs. Stipulations are as follows:— “1. In December, 1987, Ohio Movers & Storage, Inc. filed a petition in bankruptcy unde...
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MEMORANDUM OPINION The issue here arises upon an objection by Dominion Investments, Inc. (“DU”), plan administrator for Manchester Lakes Associates, to a proof of claim for prepetition tax penalties filed by the County of Fairfax, Virginia (“the County”). On December 7, 1984, an involuntary petition for relief was filed against Manchester Lakes Associates under Chapter 11 of the Unit...
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MEMORANDUM AND ORDER ON AMENDED MOTION FOR ENLARGEMENT OF TIME TO FILE PROOF OF CLAIM I. On September 8, 1988, the debtor Rai-ford Tipton gave Amity Bank a $10,000.00 unsecured promissory note. The principal plus interest at the rate of 12% was to be paid in quarterly installments beginning on December 8,1988. Raiford paid the installments due in December, 1988 and March, 1989. ...
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ORDER DENYING MOTION TO COMPEL DEBTORS TO REAFFIRM, REDEEM OR SURRENDER COLLATERAL AND DENYING MOTION TO DELAY ENTRY OF DISCHARGE The matter before the court is the “Motion for an Order Compelling the Debtors to Reaffirm, Redeem or Surrender Collateral and Motion to Continue Entry of Discharge” filed by Home Owners Funding Corporation on May 8, 1990. A hearing was held in Raleigh, North C...
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MEMORANDUM OPINION AND ORDER The matters before the court are requests from the chapter 11 debtor in possession’s two primary secured creditors, Travelers Insurance Company and Connecticut General Life Insurance Company, for adequate protection and for sequestration of rents and profits arising from the debt- or’s apartment project. The facts are undisputed and raise some basic issues con...
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MEMORANDUM OPINION This matter comes before the Court upon the motion of William M. Joel, a creditor of the debtor, to transfer the case to the Eastern District of New York. Joining in the motion are North Fork Bank & Trust, Manufacturers Hanover Trust Company, and Ruth Gibson, the Chapter 7 trustee. Finding that substantial justice and the convenience of the parties would be served, the ...
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MEMORANDUM OF OPINION AND DECISION The Debtor, Arnold A. Herzog, filed a motion claiming exemptions to which the Trustee has objected. Specifically at issue is the Debtor’s claim to exempt his KEOGH and IRA accounts pursuant to Ohio Revised Code Section 2329.-66(A)(10)(e). On consideration of the testimony, exhibits, file and briefs, the relevant facts are as follows:— Arnold A. Herzog file...
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MEMORANDUM AND SCHEDULING ORDER This core adversary proceeding, 1 which commenced over five years ago, was reached for trial on August 1, 1990. On that date, the parties stated their respective positions in a preliminary hearing intended to establish the amount of time necessary to complete the evidentiary stage of the trial. I. On December 23, 1981, the defendant Citytrust made a $5,000,...
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MEMORANDUM OPINION This matter comes before us on remand from the United States District Court for the Eastern District of Virginia, Alexandria Division, for an articulation of factual findings that support our April 10, 1989 bench ruling in which we discharged both the debtor’s obligation to pay his former wife $1000 per month for 209 months from his military pension proceeds, and his ob...
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MEMORANDUM OPINION This matter comes before the Court upon the debtor’s motion for approval of a disclosure statement and a motion filed by Thomas Russell, Inc., for relief from the automatic stay of 11 U.S.C. § 362. Finding that cause does not exist for the modification of the stay, the Court denies Thomas Russell’s motion. Due to inaccuracies in the debtor’s disclosure statement, the de...
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*806 MEMORANDUM OPINION Ermon D. Threet, Jr. (“Debtor”) and Nancy J. Threet d/b/a Red 11 Port filed their petition for relief under Chapter 11 of the Bankruptcy Code on January 12, 1989. In their Schedule B-4 he claimed his interest in the Atlantic Richfield Company Retirement Plan as exempt. 1 On November 27, 1989, the case was converted to a case under Chapter 7 and P. Ray Williams (“Will...
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MEMORANDUM AND ORDER ON APPLICATIONS FOR PRELIMINARY INJUNCTIONS I. On February 15, 1990, the debtor gave the Bank of Boston Connecticut (“BBC”) a revolving credit note in which it promised to pay amounts loaned up to $4,000,000.00 plus interest. The note provides that the debtor “hereby grants to [BBC a] lien and right of set-off for all of [the debtor’s] liabilities hereunder, upon...
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MEMORANDUM OPINION The matter before the Court is a Motion to Dismiss a voluntary petition under Chapter 11 which was filed by Harry Jones, the President, majority shareholder and member of the Board of Directors of the I.D. Craig Service Corporation, a corporation organized under the laws of the Commonwealth of Pennsylvania. The motion to dismiss was filed by the Board of Directors of the I.D. Cr...
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MEMORANDUM OF DECISION Defendants Donald Sorani and the Estate of Patricia Sorani (collectively hereinafter “Sorani”) move to dismiss two claims seeking to avoid fraudulent transfers and to recover their value from Sorani pursuant *755 to 11 U.S.C. § 550(a)(1) as the entity for whose benefit the transfers were made. Sorani contends that these claims are insufficient as a matt...
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MEMORANDUM OPINION This matter comes before the Court upon the debtor’s motion to disallow the proof of claim filed by Abtrax Pharmaceutical Company, or in the alternative, to join Elkins-Sinn, Inc., as a party defendant. Finding that the proof of claim filed by Abtrax is deficient as a matter of law, the Court grants the debtor’s motion. FINDINGS OF FACT A.H. Robins, Inc. (“Rob...
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MEMORANDUM OPINION DENYING MOTION TO MODIFY AUTOMATIC STAY The instant motion to modify automatic stay came before the Court at a hearing on July 27, 1990. For the reasons set forth in this opinion, the motion will be denied. FINDINGS OF FACT 1. On March 23, 1990, Maurice Edward Collins and Helen Virginia Collins, his wife, filed the instant Chapter 12 bankruptcy petition in this Court. 2...
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MEMORANDUM AND ORDER In this liquidation proceeding, we have for consideration a Motion by the Trustee seeking court approval of the compromise of a claim against Anjomar, Inc. pursuant to the terms of a Stipulation of counsel dated May 18, 1990 and approved by the United States District Court on May 22, 1990. In accordance with that Stipulation, Anjomar, Inc. would dismiss the pending ap...
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OPINION AND ORDER Before the Court is an application for attorneys’ fees and costs filed by the law firm of Fedderly & Shaw, attorneys for Machine Tool Finance Corporation, f/k/a Middlesex Leasing Company (hereinafter “Fedderly”). The application requests fees totalling $11,977.10. Fedderly considers the fees to be of two types with the first being incurred in the period between April 6, ...
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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 dis-chargeability vel non of an obligation owed by Al D. Farrington (Debtor) to Mrs. Margaret A. Lincoln (Ms. Lincoln), the Defendant named in the above-captioned adversary proceeding. The obligation under consideration and in dispute is set forth in a Marit...
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ORDER ON OBJECTIONS TO CLAIMS OF EXEMPTIONS THESE are Chapter 7 liquidation cases, and the matters under consideration are Objections filed by the Trustees in each of the above captioned cases to the Debtors’ claims that funds held in their respective ERISA qualified retirement plans are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. § 222.21(2)(a), 1...
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OPINION Before the court is a motion filed by Norman Levin (“Levin”) requesting that we impose sanctions upon debtor and counsel for debtor under B.R. 9011 for improperly filing this chapter 11 petition. This chapter 11 case was dismissed with debt- or's consent but we retained jurisdiction to resolve the motion for sanctions, which was filed by Levin simultaneously with his motion to dis...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS is a Chapter 11 case and the matter under consideration is a Motion for Relief from Stay filed by the United States of America (Government). The Government seeks to have the lawsuit entitled United States of America ex rel. Taxpayers against Fraud and Christopher Urda v. Link Flight Simulation Corporation, CAE —Link Corporation and The Singer Company...
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ORDER ON MOTION TO ASSUME EXECUTORY CONTRACT THIS is a Chapter 11 case and the matter under consideration is a Renewed Motion to Assume an Executory Contract, filed by APF Industries, Inc. (Debtor). The exec-utory contract sought to be assumed is a purchase order dated December 11, 1989, entered into between the Debtor and Advanced Technology and Research, Inc. (ATR). (Debtor’s Exh. No. 1). The Re...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE NATURE, VALIDITY AND VALUE OF THE SECURED CLAIM FILED BY PLAINTIFF, AMERICAN UNIVERSAL INSURANCE COMPANY The above-styled core adversary proceeding 1 came on for hearing on the complaint of the plaintiff, American Universal Insurance Company (“AUIC”), seeking a judicial determination of, inter alia, the secured status of th...
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*876 MEMORANDUM OPINION This motion is about an attorney-trustee hiring his own law firm to represent him in a Chapter 7 bankruptcy proceeding. The trustee assigned to this Chapter 7 case is an attorney who is applying to employ a law firm, of which he is a partner and in which he holds a financial interest, to perform specified legal services for the trustee. For the reason...
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MEMORANDUM OPINION DISMISSING COMPLAINT WITH PREJUDICE At the conclusion of a hearing held on September 25, 1989 upon the instant complaint to determine dischargeability of debt, this Court granted the debtor’s motion to dismiss. The plaintiff filed a post-trial memorandum in opposition to the granting of the motion. Notwithstanding the arguments of the plaintiff contained in the memorand...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on before the Court first on June 27, 1990. The trial was not completed on that day, and was continued to August 15, 1990, upon the complaint of Plaintiff, C.L. Whiteside & Associates Construction Company, Inc., to quiet title to equipment, and for declaratory and injunc-tive relief. The Court having, heard the testimony, examined th...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case and the matter under consideration is a Motion for Summary Judgment filed by David M. Carr, P.A. (Carr) in the above-captioned adversary proceeding. In his complaint Carr alleges that an obligation in the amount of $7,591.36 owed to him by Richard Agüero (Debtor), the Debtor involved in this Chapter 7 case, is within the ...
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MEMORANDUM OPINION DISCHARGING STUDENT LOANS At the conclusion of the hearing on the instant complaint to discharge student loans, the Court informally opined that the debtor could not discharge student loans which became due less than five years before the filing of her bankruptcy petition without having made any payments. The Court concluded that the debtor had failed to establish the necessa...
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ORDER OVERRULING TRUSTEE’S OBJECTION TO PLAN The trustee objects to confirmation of the debtor’s Chapter 13 plan on the grounds that it fails to provide for all of the debtor’s net disposable income. 11 U.S.C. § 1325(b)(1)(B). The debtor is a married man, living with his working wife. Apparently, they split their living expenses equally. The debtor’s budget proposes to calculate his net dispo...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT THIS is a Chapter 7 case and the matter under consideration is a Complaint to determine the dischargeability of a debt owed by Gary Lee Beardsley, the Debtor/Defendant (Debtor) in this adversary proceeding, to Dorothy Joyce Anderson (Plaintiff). In the Complaint, the Plaintiff contends that the debt due...
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MEMORANDUM OPINION SUSTAINING IN PART AND OVERRULING IN PART CREDITOR’S OBJECTION TO MOTION TO AVOID LIEN The debtors filed this motion to avoid lien alleging that a lien claimed by ITT Financial Services on their household goods and furnishings is avoidable to the extent that it impairs an exemption which they have claimed. The creditor objected to the avoidance of its lien, arguing that...
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OPINION Background On May 12, 1989, Presque Isle Apartments, L.P. (“Debtor”) filed objections to the unsecured claim (“Claim”) of Richard Jankell (“Jankell”), asserting that the Debt- or is entitled to a set-off against the Claim for Jankell’s role in the prior management of the Debtor. On June 28, 1990, this court ordered the Debtor to amend its pleadings to allege specific facts, which,...
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ORDER ON MOTION FOR PROTECTIVE ORDER THE MOTION under consideration filed in the above-captioned adversary proceeding brings into play the extent and reach of the time-honored attorney-client privilege and the judicially created shield against *868 discovery, known as the “work product” doctrine, first articulated by the Supreme Court in the case of Hickman v. Taylor, ...
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ORDER AUTHORIZING INTERIM ALLOWANCE OF COMPENSATION TO WEIL, GOTSHAL & MANGES, SPECIAL COUNSEL FOR DEBTOR-IN-POSSESSION THIS CAUSE came on for consideration with proper notice given to all interested parties upon the First Application of the law firm of Weil, Gotshal & Manges (WG & *857 M), Special Counsel for the Debtor-in-Possession, for an Interim Allowance of Compensation...
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MEMORANDUM OPINION NATURE OF ACTION AND CONTENTIONS Cathy Borste filed a Chapter 7 petition on November 7, 1989. Nordstrom filed a complaint, alleging that, from May through September, 1989, the debtor incurred credit card charges with no intention or apparent ability of paying them. As such, Nord-strom maintains that these charges are nondischargeable under § 523(a)(2)(A) of the Bankruptcy C...
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OPINION The matter before this Court is a motion entitled “Notice Of Motion For Order Determining Legality And Amount of Assessment Of Internal Revenue Service And For Other Relief” filed on February 21, 1989 on behalf of the debtor, Howard E. Davidson, (“Debtor”). By that motion the Debtor sought an Order of this court: (1) determining the amount and legality of any assessment made by th...
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MEMORANDUM OF DECISION AND ORDER RE: OBJECTIONS TO CLAIMS OF EXEMPTION AND MOTIONS TO AVOID LIENS The matters before the court are creditors’ objections to the debtors’ claims of exemption and the debtors’ separate motions to avoid liens. Debtors in each of the contested matter proceedings were represented by David Smith. David Davitt appeared on behalf of the Federal Deposit Insurance Co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM OPINION This cause came on for trial on June 1, 1990, upon the Plaintiff/Trustee’s Complaint to Avoid a Fraudulent Transfer. This Court has jurisdiction pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2). At trial, many of the relevant fa...
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OPINION BACKGROUND Presque Isle Apartments, L.P. (“Debt- or”) filed objections to the unsecured claims of Joseph and Rosalind Cohen, Stanford Klapper, Edward S. Markman and Richard Jankell (collectively “Creditors”). Richard Jankell’s claim has been assigned to Northwestern National Insurance Company of Milwaukee, Wisconsin. The basis of the Debtor’s objection is that the contract ra...
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ORDER RE: MOTIONS FOR SUMMARY JUDGMENT Before the court are three motions for summary judgment filed in these consolidated adversary proceedings. Motions have been filed by White Front Feed & Seed, Division of Paul Lammers & Sons, Inc. (WHITE), David J. Ramaker and Jean A. Ramaker (RAMAKERS) and State National Bank of Platteville (BANK). Oral argument took place by telephone on March 20, ...
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ORDER ON MOTION TO STRIKE JURY DEMAND This cause is before the Court on the Motion to Strike Jury Demand filed by Frederick M. Luper, the Chapter 11 Trustee (“Plaintiff” or “Trustee”), and the Opposition thereto by Defendants Banner Industries, Inc. and Plymouth Leasing Company (collectively “Banner”). At the hearing held on December 12, 1989, the parties indicated that only four counts o...
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MEMORANDUM OPINION GRANTING MOTION FOR RECONSIDERATION In an earlier opinion, this Court sustained the debtor’s objection to interim fees claimed by creditors' committee counsel on the grounds that (1) the case was not economically staffed; (2) counsel claimed fees for services which did not benefit the estate; (3) time records did not adequately describe the nature of many services rende...
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The debtor, Seneca Balance, has filed objections to the claim of the Internal Revenue Service (IRS). The proof of claim filed by the IRS states that the debtor is obligated to the government in the total sum of $434,097.54. Of that total, $159,-582.12 is asserted as a secured claim by virtue of a series of tax liens filed pre-petition. The sum of $265,275.62 is indicated as an unsecured priority ...
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MEMORANDUM OPINION ON HELLER MOTION FOR SANCTIONS On July 26, 1989 Park Place Associates, an Illinois limited partnership (“Park Place or Debtor”), filed in this case a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. Shortly thereafter Heller Financial, Inc. (“Heller”), the principal secured creditor of Park Place, moved to lift the automatic stay under 11 U.S.C. § ...
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OPINION Before the Court is a motion by Norstar Bank (“Norstar”), pursuant to 28 U.S.C. § 1412 and Bankruptcy Rule 1014, for change of venue and transfer to this Court of two Chapter 11 bankruptcy proceedings currently pending in the United States Bankruptcy Court for the District of Connecticut (the “Connecticut Proceedings”): one filed by an individual, James A. Pepi-tone (In re J...
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DECISION AND ORDER Before the Court are creditor Keven McKenna’s Motions to Dismiss, and Motion for Summary Judgment, which were filed in response to the debtor’s Objection to McKenna’s Proof of Claim, filed on July 13, 1989. The obvious procedural anomaly presented on the face of the pleadings is resolved as follows — Bankruptcy Rule 3007 entitled “Objections to Claims” provides in relevant pa...
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DECISION ON MOTION TO VACATE AUTOMATIC STAY Duncan H. Cameron, Virginia Cameron, Judith White, Tecklin Trust and Gloria Bernt (“The SDN Lenders”) have moved for an order for relief from the automatic stay imposed under 11 U.S.C. § 362(a) to permit them to enforce their rights to certain pledged securities by arbitration in accordance with an agreement sponsored by the New York Stock Excha...
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ORDER DENYING MOTION OF GOL-DOME REALTY CREDIT CORP. FOR DISMISSAL OF CASE AND RELIEF FROM AUTOMATIC STAY The matter is before the Court upon the Motion of Goldome Realty Credit Corporation (“Goldome”) to excuse compliance with 11 U.S.C. § 543 pursuant to § 543(d) of the Bankruptcy Code, for relief from the automatic stay, and for dismissal of this case pursuant to § 1112(b) of the Bankruptcy Code...
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MEMORANDUM OPINION THIS MATTER comes before the Court upon the adversary proceeding brought by the FDIC as receiver of the American Bank of Casper (Bank) in Wyoming against the debtor/defendant Peterson, a former officer of the bank. The complaint seeks a declaratory judgment that Peterson’s discharge in bankruptcy is not an injunction against FDIC’s suit against him to establish liability for ...
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MEMORANDUM OPINION Flint Area School Employee Credit Union (Plaintiff or Credit Union) filed this adversary proceeding to object to discharge of credit card debt owed by Debtor Michi No-gami (Defendant or Nogami). $16,006.80 in debt was incurred by credit card transactions on and after December 20, 1987, with virtually all of these charges made during a ten (10) day period with a card hav...
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DECISION & ORDER ON MOTION FOR SUMMARY JUDGMENT By its complaint in this adversary proceeding the plaintiff/trustee seeks to avoid a security interest the defendant claims to hold against property of the estate. Additionally, pursuant to § 542, the trustee seeks to compel the defendant to turn this property over to the trustee or to account for its value. The matter is now before the...
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MEMORANDUM DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court on the request of the Trustee, as Defendant, that he be granted summary judgment on the remaining claims in this adversary proceeding. The United States of America and the United States Department of Energy (“D.O.E.”) commenced these adversary proceedings on September 22, 1988. The Truste...
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MEMORANDUM OF DECISION RE: ' DEFENDANT’S MOTION TO DISMISS COMPLAINT AND ORDER STATEMENT OF THE CASE On April 24, 1989, the Debtor filed a Chapter 11 petition, which was converted to Chapter 7 on July 29, 1987, and a Chapter 7 Trustee duly appointed thereafter. On August 17, 1989, the Debtor filed an adversary action against the defendants, John Tao and Jeffrey Schainen, seeking...
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DECISION AND ORDER Heard on July 11, and August 6, 1990 on motions of George Strouthopoulos requesting this Court to abstain, pursuant to 11 U.S.C. § 305(a), from entertaining: (1) an involuntary petition (BK No. 90-10779) filed by three creditors; and (2) the voluntary petition (BK No. 90-11103) filed on July 17, 1990 by Joyce Searles as principal. The petitioning creditors in the involu...
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DECISION AND ORDER Heard on August 9, 1990 on the debtor’s objection to the Motion of Teamsters Local Union No. 251 (“Teamsters”) “to grant vacation pay to members of Teamsters Local Union 251.” At issue is whether employee claims for vacation pay, as provided for in their collective bargaining agreement, (see Union’s Exhibit A, Art. X) are administrative expense claims pursuant to §§ 503(b...
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DECISION Thomas Farley (“Farley”) and Bernard Coven (“Coven”) (also referred to as “The Petitioners”), creditors of Coffee Cupboard, Inc. (hereinafter “Coffee Cupboard” or “The Debtor”), moved to reopen this closed Chapter 11 case and convert it to a Chapter 7 ease. The grounds in support of the motion are threefold: first, that the Debtor was in material default in the consummation of it...
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DECISION AND ORDER Eastern Systems, Inc. (“Eastern” or the “Debtor”), the debtor and debtor-in-possession herein, seeks a court order pursuant to Rules 3018(a) and 9006(b)(1) of the Federal Rules of Bankruptcy Procedure allowing NBS Systems, Inc. (“NBS” or the “Creditor”), the Debtor’s largest unsecured creditor, to vote in favor of confirmation of the Debtor’s plan, notwithstanding the e...
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DECISION AND ORDER OF CONDITIONAL DISMISSAL AND RELIEF FROM STAY This matter is before the court in the bankruptcy ease referred to this court by the standing order of reference entered in this district and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L), confirmation of plans. *540 The court is authorized to enter a final judgment. The following opinion constitut...
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DECISION DETERMINING EFFECTIVE DATE OF REJECTION OF LANHAM LEASE By an order (Docket Entry (“DE”) 94) entered July 30, 1990, the Court granted the debtor-in-possession’s motion (DE 78) to reject the debtor’s lease with Lanham Property Investors Limited Partnership (“Lanham”) but took under advisement whether that rejection would be effective as of July 27, 1990, when the Court rendered its oral...
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C.T.E. Hayward and I.G. Watt, joint liquidators (the “Liquidators) of Drexel Burn-ham Lambert Finance Ltd., seek an order, pursuant to 11 U.S.C. § 1102 (1986), directing the United States Trustee to appoint *210 them to the Official Committee of Unsecured Creditors (the “Committee”)- The motion is opposed by the United States Trustee (the “U.S. Trustee”) and the Committee. The...
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MEMORANDUM OPINION AND ORDER REGARDING APPLICATION BY HALIGMAN & LOTTNER, P.C. FOR INTERIM ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES THIS MATTER comes before the Court upon the Application by Haligman & Lott-ner, P.C. for Interim Allowance of Compensation and Reimbursement of Expenses filed February 12, 1990 and the Objections thereto filed by the Acting United States Truste...
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*557 MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS AND/OR STAY sitting by designation. On February 27, 1990, Citicorp North America, Inc. (CNA) filed its complaint against the Trustee in these three jointly administered Chapter 11 cases, which complaint seeks a declaratory judgment pursuant to Bankruptcy Rule 7001(9) that CNA’s secured claims against the debtors be allo...
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DECISION The Trustee brought this adversary proceeding against the Defendants, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plan Administrator of the State Farm Employees’ Incentive and Thrift Plan for United States Employees, and EDWARD B. RUST, ROGER JOSLIN, and BRUCE CALLIS, Trustees of the Plan of State Farm Employees’ Incentive and Thrift Plan for United States Employees (collectively r...
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MEMORANDUM DECISION At issue is whether this court should approve the debtor’s motion to sell real property free and clear of a lis pendens pursuant to 11 U.S.C. § 363(f)(4). 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 California. This is a core proceeding ...
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OPINION The questions in this case are whether the Chapter 7 Debtors’ interest in two pension and profit sharing plans is property of the estate, and if so, whether it can be claimed as exempt property under a state exemption or “other federal law.” This Court holds that the ERISA qualified pension and profit sharing plans at issue are spendthrift trusts under the provisions of ERISA and,...
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ORDER OVERRULING OBJECTION TO CLAIM OF IRS SUSTAINING IRS’S OBJECTION TO PLAN, AND SETTING DEADLINE FOR AMENDMENT OF PLAN This matter comes before the Court on the Objection to Claim of Internal Revenue Service (“the Objection to Claim”) filed by the Debtors on January 3, 1990, and on the Objection to Confirmation of Debtors’ Plan (“the “Objection to Plan”) filed by the Internal Revenue S...
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MEMORANDUM OPINION RE: DEBTOR’S MOTION TO AMEND SCHEDULES On August 17, 1984, Barry L. Moon (“Debtor”) filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. The Debtor received an uncontested discharge on November 19, 1984. The case was closed as a no-asset case on November 30, 1984. On the motion of the Debtor, the case was reopened on April 30, 1985 to allow the ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Defendant Joseph F. Dvorak, IV (“Debt- or”) is a debtor under Chapter 7 of the Bankruptcy Code. The Plaintiff William Brill (“Brill”), a creditor in Debtor’s bankruptcy case, filed this Adversary Complaint to have Debtor’s obligation to him declared nondischargeable pursuant to 11 U.S.C. § 523(a)(6). On July 18, 1990 a trial on the issues raised in ...
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MEMORANDUM DECISION AND ORDER Lloyd K. Holtz and Andrea Poe brought an adversary proceeding against Robert Mark Poe seeking determination that certain debts, including award of attorney fees incurred in litigation over child custody, should be excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). The complaint has been confessed in part, and otherwise the matter has been submitted for *81...
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MEMORANDUM OPINION Overview This court on May 16,1989 ruled that the post-petition portion of the workover performed by TIMCO Well Service (TIMCO) on the U. Richard 2, 2-D Well (the Richard Well) in the Erath Field was an actual, necessary expense of preserving the Debt- or’s estate which entitled TIMCO to a class one administrative expense priority under 11 U.S.C. Sec. 507(a)(1)...
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SUPPLEMENTAL OPINION TO JUNE 5, 1990 JOURNAL ENTRY OF JUDGMENT This matter comes on before the Court pursuant to the Journal Entry of Judgment signed by this Court on June 5, 1990. In its Order the Court reserved the right to file a supplemental opinion to address issues involved therein in greater detail if a *798party to the Journal Entry of Judgment filed a timely appeal. On June 15, 1990, a n...
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OPINION A secured creditor, Signal Consumer Discount Company (“Signal”) has filed an objection to confirmation of debtors’ chapter 13 plan. Signal maintains that debtors’ plan does not comply with 11 U.S.C. § 1325(a)(5)(B)(ii) because the plan does not require that interest be paid to Signal at the rate specified in the parties’ contract. Rather, debtors’ plan contemplates payment of interest t...
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MEMORANDUM OF OPINION ON POST-CONFIRMATION DISMISSAL OF A CHAPTER 11 The issue before the court is the effect of dismissal of a Chapter 11 case on debts for which a confirmed Chapter 11 plan provided. The court finds that debts which the plan provided for are not discharged. Facts On May 1, 1984, Carl and Mary L. Page (Debtors) filed for relief under Chapter 11 of the Bankru...
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*171 FINDINGS AND RULINGS ON RESPONSIBLE PERSON LIABILITY The Mason brothers, Ira and Norman, operated two drug stores, one, Mason Bros., Inc., the other, Union Pharmacy, Inc. They each owned 50% of the stock and each had originally invested $25,000. Ira was president of both, and Norman was treasurer of both pharmacies. The brothers both had check writing authority and each spent approximate...
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ORDER DENYING OBJECTION TO EXEMPTIONS The matter before the Court is the Chapter 7 Trustee’s objection to the pension exemptions of debtor Sandra Lee Boykin. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and may enter final orders pursuant to 28 U.S.C. § 157(b)(2). For the reasons stated below, the Court concludes that the pension interests are valid exempti...
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ORDER The parties have agreed that the Trustee’s objection to the Debtor’s claim of exemption is to be submitted to the Court upon the Memoranda of Law submitted by the parties on August 9, 1990 and on August 22, 1990. Upon consideration of the record as a whole, the Court has concluded that the Debtor commenced this case by filing a voluntary petition for relief under Chapter 13 on January 2...
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Ruling re: Trustee’s Motion For Partial Summary Judgment and Defendants’ Cross-Motion For Summary Judgment The matter before the Court is the motion for partial summary judgment filed by the Chapter 7 Trustee, Dennis Currell. The Trustee seeks partial summary judgment on the adversary complaint filed January 7, 1988. The Debtor, Frank J. Taylor, has filed a resistance to the Trustee’s...
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RULINGS ON BOSTON REDEVELOPMENT AUTHORITY’S MOTION FOR SUMMARY JUDGMENT Essentially, Back Bay Restorations Company (“BBRC”) is seeking, through this action, to have this Court reopen the issues previously decided by the Massachusetts Land Court, of whether BBRC should remain subject to M.G.L. c. 121A and St. 1960, c. 652 (collectively, “c. 121A”), a Massachusetts urban redevelopment statu...
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ORDER RE: Remand The Court conducted a further evidentia-ry hearing in connection with the remand of this case from the Eighth Circuit Court of Appeals. The Court, having heard the evidence and testimony and having reviewed the briefs and arguments of counsel, now enters the following findings of fact, conclusions of law and order. The issues before the Court are whether more than 50% of the ...
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MEMORANDUM The issue is whether the State of Tennessee may set off amounts owed to the debt- or for prepetition services provided by the debtor to one department of State government against prepetition taxes owed by the debtor to another department of state government. Setoff is appropriate. I. In August, 1989, the State of Tennessee contracted with the debtor through its Depart...
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ORDER ON MOTION TO REVIEW ATTORNEY’S FEES This action came before this court on the Trustee’s motion to determine the reasonableness of fees paid to the debtors’ attorney. Section 329 of the Bankruptcy Code gives the Bankruptcy Court the power to require the return of any payment of fees which the court determines to be excessive. The issue before the court is whether $5,000 is a reasonab...
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ORDER RE: MOTION FOR CONTINUANCE The Defendant, David Roger Good, has filed a motion to continue the trial set for October 23,1990. That motion came on for telephonic hearing on September 4, 1990. The following persons participated in the telephonic hearing: Movant and Debtor, David Roger Good, through his attorney Michael Vestle; Pattison Bros. Mississippi River Terminal, Inc., through i...
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DECISION Sterling Die Casting Company, Inc. (“Sterling” or “the Debtor”), the Debtor herein, brings the within adversary proceeding against Local 365 U.A.W. Welfare and Pension Fund (“Local 365”), pursuant to § 547 of the Bankruptcy Code seeking to avoid alleged preferential transfers. FACTS On November 9, 1989, Local 365 obtained a judgment in the United States District Court f...
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*107 AMENDED MEMORANDUM OPINION Following are the Court’s findings of fact and conclusions of law under Bankruptcy Rule 7052 with respect to a trial held May 16 and 18, 1990. This is an 11 U.S.C. § 544(b) complaint by Anthony M. Mancuso, Trustee (“Plaintiff”), to recover bonuses and dividends paid by Debtor to Ray Champion (“Defendant”), a shareholder of Debtor owning shares of C...
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MEMORANDUM OF DECISION On March 26, 1987 the debtors Hilary and Paula Walendy (“debtors”) filed a petition for relief under Chapter 7 of the Bankruptcy Code. Pursuant to Bankruptcy Rule 1007, the debtors filed a list containing the names and addresses of their creditors. There were 23 creditors listed in the debtors’ schedules. Most of the creditors were related to an Arizona corporation, Wicke...
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ORDER ON TRUSTEE’S OBJECTION TO EXEMPTIONS This matter is before the Court on the Trustee’s objection to the Debtors’ claim of exemption concerning funds held in a retirement plan. The Debtors claimed as exempt under Section 222.21, Fla.Stat., funds held in a retirement plan with the Hobart Corporation, Kenneth Williams’ employer. The Trustee argues the state statute relied on by the Debt...
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JUDGMENT AND FINAL DECREE THIS CAUSE came on for trial on November 20, 21, 22, 24, and 25, 1989, of the following four consolidated matters: 1. Adversary proceeding No. 89-230 filed in this Chapter 11 ease by Braniff, *824 Inc. the debtor, as plaintiff, against GPA Group Limited; now known as GPA Group pic; GPA Corporation; GPA Leasing USA I, Inc.; Wilmington Trust Compa...
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MEMORANDUM OF DECISION This case is one of several adversary proceedings filed by the plaintiff/trustee *220against the defendants alleging a preferential transfer. The adversary proceedings have been consolidated since the same parties and the same legal issues are involved in each case. The plaintiff trustee has previously dismissed his cause of action against H & R Block (Block) and Block is t...
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OPINION ON MOTION FOR SANCTIONS I. INTRODUCTION This motion raises the issue of whether, after a plaintiff has lost an action based on an issue of first impression in the federal judicial circuit, and on which the law was unsettled when the action was filed, sanctions should be imposed upon counsel for the prevailing defendant for bringing a malicious prosecution action against the l...
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MEMORANDUM-DECISION The matter before the Court is a Motion for Determination of Disposable Income and Requirement for Turnover Thereof filed by Chapter 12 Standing Trustee A. Thomas Pokela (Trustee) and the resistance thereto filed by Debtors Myron and Joy Kuhlman (Debtors). A hearing was held April 17, 1990, and after briefs were filed the matter was submitted to the undersigned for con...
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DECISION AND ORDER Heard on May 17,1990, on the request of Richard Emerson, an employee of the debt- or, for an order requiring the debtor to continue to provide his workers’ compensation benefits, as well as medical insurance coverage. The Chapter 11 Trustee objects, on the ground that the movant’s injury, which occurred on September 15, 1988, is outside the Code’s priority claim period....
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MEMORANDUM OPINION The chronologies set out by the parties are relatively similar. The point of divergence comes when each applies the facts to the law. The facts as they are presented to the court are as follows. David Rogne is the President of IDK Logging, Inc. (hereinafter IDK) and his wife Sandra is the Secretary of the corporation. Over a three year period IDK entered into contracts ...
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MEMORANDUM DECISION ON MOTION TO COMPEL ANSWERS TO DEPOSITION QUESTIONS This is a joint motion by the plaintiff and by the third-party defendant to compel the defendant/third-party plaintiff to answer questions that he refused to answer during his deposition because his counsel objected that the questions were irrelevant and instructed him not to answer. No privilege was asserted and no m...
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MEMORANDUM OPINION This matter comes before the Court on the motion of Glenn R. Heyman, as Chapter 7 Trustee (the “Trustee”) for turnover of property of the estate pursuant to 11 U.S.C. §§ 541 and 542, and on the second application of Towbin & Zazove, Ltd. (“T & Z”) as attorneys for the Chapter 11 Official Unsecured Creditors’ Committee (the “Committee”), pursuant to 11 U.S.C. § 331 for i...
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OPINION Before the Court for consideration is the Complaint to Have Debt Declared Nondis-chargeable filed by Guaranty Corporation against the debtor, Greg Fondren. At the trial of this matter on June 25, 1990, the Court ruled that there was no violation of section 523(a)(2)(A) of the Bankruptcy Code. Additional time was given to the parties to submit briefs on the issues of whether the complain...
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MEMORANDUM OPINION The matter presently before this court is the Debtors’ Complaint To Determine Secured Status. The Debtors’ motion is denied. I. FACTS The Debtors filed a voluntary petition under Chapter 7 of the Bankruptcy Code on April 28, 1988. The Debtors own real property located in Fayette County, Pennsylvania. Both parties have stipulated to the fact that the fair market value of...
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MEMORANDUM & ORDER It is common for a business to have a creditor who advances products on a secured basis. The typical arrangement is for the creditor to advance inventory or supplies and then have a floating lien on the products and their cash proceeds to ensure payment. See 1A P. Coogan, W. Hogan & D. Vagts, Secured Transactions under UCC § 7.04[3][d], at 7-37. “A floating l...
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MEMORANDUM The court has before it a complaint filed by John P. Newton, Jr., Trustee, against multiple defendants. 1 Counterclaims and cross-claims are asserted by the defendants, First American National Bank (First American) and First National Bank of Oneida (First National), against the plaintiff and defendant, Marvin J. Herskowitz, Trustee (Herskowitz). 2 Addition...
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*23 DECISION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT AND MOTION FOR SUMMARY JUDGMENT Plaintiff, the divorced wife of the Chapter 7 debtor, Joel R. Katz, has moved pursuant to Fed.R.Civ.P. 56, as adopted by Bankruptcy Rule 7056, for summary judgment declaring the debts owed by the. debt- or to his ex-wife to be non-dischargeable as alimony, maintenance or support in accordance with ...
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MEMORANDUM OPINION Background This trilogy of cases presents various issues regarding a debtor’s power under Section 522(f)(1) of the Bankruptcy Code to avoid liens awarded to the debtor’s former spouse to secure a property division in the course of a marital dissolution. 1 These cases have been consolidated for argument and decision for the convenience of the court. §...
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ORDER ON STIPULATED MOTION FOR SETOFF THIS MATTER is before the Court upon a Stipulated Motion for Setoff (“Motion”) filed by World Savings & Loan Association (“World Savings”) and the Chapter 7 Trustee on December 22, 1989. An objection to the Motion was filed January 8,1990 by the United States on behalf of the Internal Revenue Service (“IRS”). World Savings filed a response to the obje...
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MEMORANDUM OPINION This opinion shall supplement the record on the Court's determination on June 26, 1990 that Ernest R. Costanzo, Esq., attorney for the debtors, was in contempt of Court for intentionally violating an order as to where to file papers in this case, and for intentionally showing disrespect for the Court in open court on that date. FINDINGS OF FACT On December 26, 1989, Michael and ...
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MEMORANDUM AND ORDER RE: MOTION FOR DISPOSAL OF PROPERTY PURSUANT TO 11 U.S.C. § 725 I. Bankruptcy Code § 725 provides that a trustee in a chapter 7 case “after notice and a hearing, shall dispose of any proper *11 ty in which an entity other than the estate has an interest, such as a lien, and that has not been disposed of under another section of this title.” Allied Gr...
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MEMORANDUM OPINION This matter comes on to be heard upon the motion of Rent-A-Center, Inc. (“RAC”) for modification of automatic stay and abandonment of property and the objection of RAC to confirmation of Debtor’s proposed Chapter 13 plan and this Court being fully advised in the premises finds as follows. STATEMENT OF FACT David Lynn Blevins (“Debtor”) entered into rental purchase agreeme...
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MEMORANDUM OPINION The matter before the Court in this Chapter 7 proceeding is Debtor’s Motion to Approve Retention of Counsel, Nunc Pro Tunc. Debtor’s counsel failed to seek approval of this Court for his retention as counsel for the Debtor in Possession before commencing legal representation, either when the case was filed under Chapter 11 or at any time thereafter, including after conversi...
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*260 ORDER On this 11th day of September, 1990, the Motion for Summary Judgment filed by the Defendants herein (Docket Entry No. 9) and Brief in Support (Docket Entry No. 10) as well as Plaintiffs Response to Defendants’ Motion for Summary Judgment (Docket Entry No. 11) and Brief in Support (Docket Entry No. 12) and the Motion for Summary Judgment filed by the Plaintiff herein (D...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON THE COMPLAINT OF TRUSTEE TO RECOVER PREFERENCE AND AVOID JUDGMENT LIEN PURSUANT TO SECTIONS 547(b) AND 544(a) (Amended and Reissued) This cause was tried on Debtor’s Adversary Complaint to recover a preferential transfer to and avoid a judgment lien claimed by James D. Crawford (“Crawford”). Upon conversion of Debtor’s Chapter 11 proceeding ...
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MEMORANDUM, OPINION, AND ORDER FACTS Julane and Foley Goins are the owners of a single family home. The home is their principal residence. Diamond Mortgage Corporation holds the mortgage on the home. At present, the Goins owe Diamond about $47,000 on the home. Diamond has no security for its loan to the Goins other than the Goins’ home. The Goins fell behind on their mortgage pa...
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*331 ORDER GRANTING DEBTOR’S MOTION TO AVOID JUDICIAL LIENS THIS CAUSE came before the Court on September 5, 1990, upon the debtor’s Motion To Avoid Judicial Liens pursuant to 11 U.S.C. § 522(f), and the Court having reviewed the record, having heard the arguments of counsel, and being otherwise fully advised in the premises, hereby makes the following findings and conclusions of law: The d...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint filed by Ann M. Cassata seeking an exception to discharge pursuant to 11 U.S.C. § 523(a)(5) for lump sum alimony payments owed to her by her former husband, Joseph John Cassata. A trial was held on June 6, 1990, and upon the evidence presented, the Court makes the following Findings of Fact ...
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FINDINGS OF’ FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint predicated upon 11 U.S.C. § 547 seeking to avoid the transfer of |275,000. Trial was held on August 29, 1989, and May 2, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT Plaintiff is a certified public accountant...
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MEMORANDUM OF DECISION The three major questions raised by these motions are (1) whether a judicial lien creditor, having initially failed to object to any of the debtor’s exemption claims, is foreclosed from defending a lien avoidance motion by objecting to the validity of the exemption, (2) whether the pre-bankruptcy perfection of a lien, coupled with a concurrent waiver of a potential ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon the complaint of Barnett Bank of Columbia County seeking exception to discharge pursuant to 11 U.S.C. § 523(a)(2)(B) and § 523(a)(6). A trial was held on May 16, 1990, and upon the evidence presented the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT B...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint filed pursuant to 11 U.S.C. §§ 547 and 548 seeking to avoid the transfer of realty by the defendant. A trial was held on May 30, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: *284 FINDINGS OF FACT Plaintiff was the principal ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding seeking to avoid a transfer as a preference came before the Court for trial on July 5, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law. Findings of Fact 1. Debtor, Jean Mary O’Connell, and her husband, Phillip A. O’Connell, (collectively, the “O’Con...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court for trial on August 9, 1989, and on May 3, 1990, and upon the evidence presented, the Court enters the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. In 1984, plaintiff, Sav-A-Stop Incorporated (“SAS”) was in the business of selling goods referred to as general merchan...
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DECISION RE FREDERICK COUNTY NATIONAL BANK’S MOTION FOR RELIEF FROM THE AUTOMATIC STAY Frederick County National Bank (the “Bank”), a joint creditor of the debtor and his wife, has filed a motion for relief from the automatic stay to permit it to pursue non-estate assets: tenancy by the entireties property exempted by the debtor and property owned by the debtor’s wife. The motion will be denied...
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DECISION ON MOTION TO MODIFY PLAN OF REORGANIZATION Fansal Shoe Corp. d/b/a Marlowe Shoes (“Fansal”), the former debtor in this con *29 firmed Chapter 11 case, has moved pursuant to 11 U.S.C. § 1127(b) to modify its confirmed plan of reorganization to add four additional unsecured creditors to its schedule of unsecured debts and to include those debts in its confirmed plan of...
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MEMORANDUM OPINION AND ORDER This matter comes on for hearing before the Court on April 11,1990, pursuant to the Joint Objection of Pittsburg State University and Higher Education Assistance Foundation to Confirmation of Debtor’s Amended Plan. The creditor Pittsburg State University appeared by and through its attorney, Nancy L. Ulrich, Assistant Attorney General. The creditor Higher Educ...
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DECISION ON MOTION FOR SUMMARY JUDGEMENT The plaintiff, Norton Operating Services, Inc. has moved for summary judgment pursuant to Fed.R.Civ.P. 56, which is made applicable to this proceeding by Bankruptcy Rule 7056, denying the debtor’s discharge pursuant to 11 U.S.C. § 727(a)(3), § 727(a)(4)(A) and § 727(a)(5). FACTS 1. On November 21, 1989, the debtor, Iris Perry (“debtor”), filed with t...
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MEMORANDUM OPINION This matter comes before the Court upon the trustee’s objection to the debtor’s claim of his homestead exemption. For the reasons set forth in the Memorandum Opinion, the Court dismisses the trustee’s objection. FINDINGS OF FACT Theron Hayes (“debtor”) was the owner of two jewelry businesses, one operating as Hayes Jewelers in Richmond, Virginia, and the other as Springfi...
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OPINION AND ORDER ON USAGE OF RENTS BY DEBTORS OPERATING UNDER FLORIDA ASSIGNMENTS OF RENTS These matters are before the Court upon motions filed by various debtors in the above-captioned cases seeking authority to use cash collateral or upon motions by lenders seeking to prohibit such usage. As each case involves identical issues of Florida law, the various motions and objections are bei...
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OPINION This case comes before me on the debtors’ objections to the claim of Security Pacific National Trust Co. (New York) for legal services rendered to it and fees paid by it to Pitney, Hardin, Kipp & Szuch, its attorneys, prior to and during the pendency of the case. Objections to claims are core proceedings over which this court has jurisdiction under 28 U.S.C. §§ 157(b)(2)(B) and 13...
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AMENDED ORDER On July 25, 1990, William Douglas Pae-plow, the debtor herein, filed his Verified Complaint for Injunction under 11 U.S.C. Section 524 against Edmond W. Foley, R. Kent Rowe, R. Kent Rowe III, Jerry E. Huelat, V.L. Beagles, Betty Beagles, Pete Cassen, and Karen Cassen. The defendants filed their Verified Motion to Strike and Request for Expedited Hearing on August 14, 1990, to whic...
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ORDER ON MOTION FOR CONTEMPT, SANCTIONS AND/OR DAMAGES IN THIS Chapter 11 case, which no doubt has its genesis in the bitterly fought domestic relation battle between A. Edward McGinty (Debtor), and his former spouse, Patricia A. McGinty (Ms. McGinty), the matter under consideration is a Motion for Contempt, Sanctions and/or Damages filed by the Debtor against Richard G. Pip-pinger (Mr. P...
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ADJUDICATION A. FINDINGS OF FACT 1. The Plaintiff, STEPHEN RASLA-VICH, (“the Trustee”), is the Trustee of the Debtor, OLD WORLD CONE COMPANY (“the Debtor”). The Debtor filed the voluntary Chapter 7 bankruptcy case underlying this proceeding on January 8, 1990. 2. The instant proceeding, seeking to avoid certain allegedly preferential transfers to the Debtor’s President, Defendan...
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ORDER ON MOTION FOR SUBSTANTIVE CONSOLIDATION THIS IS- a Chapter 11 case and the matter under consideration is a Motion seeking-substantive consolidation of the following estates: *822 Name Case Number Murray Industries, Inc. (Industries) 88-7473 Murray Chris-Craft Aqua Homes, Inc. (Aqua) 88-7474 Murray Chris-Craft Sportboats West, Inc. (Sportboats West) 88-74...
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ORDER GRANTING DEBTORS’ “MOTION FOR TURNOVER” This Chapter 7 case came on before the Court on July 24, 1989, for hearing on Debtors’ motion for turnover. Debtors appeared by James M. Meehan, their attorney. First of Omaha, a creditor, appeared by its attorney, Roger A. Nurnberger. Upon the moving and responsive documents, counsel’s acknowledgment of uncontested facts, and the record made ...
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ORDER ON APPLICATION FOR PRELIMINARY INJUNCTION THIS CAUSE came on for hearing with notice to all parties in interest upon an Application for Preliminary Injunction [sic], treated as a Motion for Preliminary Injunction, filed by R & R Associates of Pinellas County, Inc. (Debtor), the Debtor in the above-captioned Chapter 11 case. In sum, the Debtor seeks a preliminary injunction prohibiti...
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ORDER On this 4th day of September, 1990, the Motion for Summary Judgment and Brief in Support filed by the Defendant, Northwest National Bank, (Docket Entries No. 26 and 27 respectively), Defendant’s Amendment to Brief in Support of Motion for Summary Judgment (Docket Entry No. 32) and the Response and Objection of the Plaintiff, Retail Marketing Company, to Defendant Northwest National ...
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ORDER ON DEBTORS’ MOTION FOR CIVIL CONTEMPT THIS IS a Chapter 7 case and the matter under consideration is a Motion filed by Nicholas Paul Esposito, Jr. and Auburn Manona Esposito, his wife, (Debtors) who seek an Order from this Court finding Cota Auto, Inc. (Cota) in contempt and punishing it accordingly. At the duly scheduled final evidentiary hearing, the following facts relevant to th...
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OPINION Asserting that he lacks adequate protection of his second mortgage interest, Kevin C. Sullivan (“Sullivan”) moves under 11 U.S.C. § 362(d)(1) for termination of the automatic stay in order to foreclose under the mortgage. Presented is the important question of which standard of valuation— fair market value or liquidation value— should be employed in this context, and whether costs...
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ORDER ON MOTION TO DISMISS THIS CAUSE came on for hearing with notice to all parties in interest upon a Motion To Dismiss the above-captioned Chapter 11 case for “cause” pursuant to 11 U.S.C. § 1112(b) filed by the United States Trustee. The undisputed facts relevant to *309 the resolution of this matter and as appear from the record are as follows: The Debtor, the Mirac...
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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 challenge of the *274 dischargeability of several obligations admittedly owed by Clifford Hall, the Debt- or/Defendant (Debtor). The challenge is presented by a Complaint filed by the Debt- or’s former wife, Constance Hall (Plaintiff). In her Complaint, she contends tha...
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MEMORANDUM OF OPINION ON HOMESTEAD The Debtors claimed a business homestead in retail property and asserted that the lien Reserve Life Insurance Company (Reserve) held was invalid. Having deter*115mined that the lien is valid, the court denies the Debtors’ complaint. Facts James Thomas Webb, Sr., and Verda Faye Webb, d/b/a Webb Auto Supply (Debtors) filed for relief under Chapter 7 of the Bankr...
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ORDER ON UNITED STATES TRUSTEE’S MOTION FOR RECONSIDERATION OF ORDER AUTHORIZING EMPLOYMENT OF COUNSEL THIS IS a Chapter 11 case commenced by A. Edward McGinty (Debtor) who filed his Voluntary Petition for Relief under Chapter 11 of the Bankruptcy Code on July 19,1990. The Petition was signed by Mark J. Wolfson of the law firm of Rudnick & Wolfe, as counsel of record for the Debtor. The matter un...
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ORDER ON TRUSTEE’S OBJECTION TO CLAIMS OF EXEMPTION AND MOTION FOR DEBTORS TO TURNOVER PROPERTY OF THE ESTATE This is a Chapter 7 liquidation case and the matter under consideration is the Trustee’s Objection to Claims of Exemption and Motion for Debtors to Turnover Property of the Estate. The facts which are relevant to the disposition of the issues as established at the hearing on the Trustee’s ...
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ORDER ON OBJECTIONS TO CLAIMS OF EXEMPTIONS THESE are Chapter 7 liquidation cases, and the matters under consideration are Objections filed by the Trustee in each case to the Debtors’ claims that funds held in their respective ERISA qualified 401-K retirement plans are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to F...
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MEMORANDUM OPINION The same questions are involved in the two adversary actions in the Chapter 11 cases of Stoneridge Apartments, Case No. *707 90-41931-3-11, and Northwood Village Apartments, Case No. 90-41932-2-11. In each case we have the same creditor and the same management. Only somewhat different ownership is present and so the complaints as to cash collateral filed by...
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OPINION Background On April 5, 1989, Pennbank, as a secured creditor of GRF, Inc., doing business as The Station Restaurant and Rebecca’s Restaurant (“Debtor”) filed a Motion for Relief from Stay. By agreement of the parties, the requested relief was granted with the issue of whether or not Pennbank’s security interest attached to the Debtor’s liquor license remaining open for later resolut...
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OPINION ON JOINT MOTION FOR SUMMARY JUDGMENT AND/OR PARTIAL SUMMARY JUDGMENT Issue The joint motion for summary judgment and/or partial summary judgment in these related adversary proceedings raises the issue of the proper valuation of the replacement liens granted to certain reclamation creditors. While each of the reclamation creditors supplied the Debtor with different raw mat...
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DECISION AND ORDER Heard on June 13, 1990 on the Trustee’s Complaint to recover as a preferential transfer, a $26,818.34 payment to Narragansett Electric Company (“Narragansett”), made within ninety days of the filing of the bankruptcy petition. In their Joint Pretrial Order, the parties have stipulated 1 that a prima facie case exists under Section 547(b) with respect to the $...
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SUPPLEMENT TO REPORT AND RECOMMENDATION OF JULY 31, 1990 INTRODUCTION The facts in this case have been set forth at length in previous opinions, and most recently in a written opinion issued on July 31, 1990. 116 B.R. 951. As they are quite extensive, and for the most part are not essential to the present matter, I will refer only to those facts necessary to decide the pending motion...
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*33 DECISION ON MOTION TO DISMISS, ABSTAIN AND FOR MORE DEFINITE STATEMENT The defendants in this adversary proceeding seek alternative relief with respect to the complaint filed by the Chapter 11 debtor. The defendants have moved for a dismissal of the adversary proceeding pursuant to Fed.R.Civ.P. Rule 12, as adopted by Bankruptcy Rule 7012, on the ground that the complaint does...
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MEMORANDUM OPINION This ease was filed in 1984 and was confirmed June 25, 1985, by The Honorable Frank P. Barker. However, the author is not totally unfamiliar with the case since he has heard motions for relief from stay; contempt; dismissal; conversion; new trial; and stay of execution after becoming a Judge. The Honorable Frank P. Barker’s Order of Confirmation set out two provisions that have ...
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MEMORANDUM OPINION AND ORDER Hildegard Krenowsky has moved for summary judgment on her complaint asking that a debt due her by the Debtor, Eleanor Haining, be held nondischargeable in Haining’s Chapter 7 bankruptcy case. The complaint alleges: (1) that Haining fraudulently obtained monies from Krenowsky, (2) that Haining attempted to defraud Krenowsky by failing to list her on the original ...
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ORDER ON DEBTORS’ CLAIM OF EXEMPTIONS THESE MATTERS came on for consideration in the above-captioned Chapter 7 cases by the Trustee filing an Objection to the Debtors’ Claim of Exemptions. Each case is similar not only on the basis of the Trustee’s objection, but also to the specific exemption which is an ERISA qualified pension plan. On November 14, 1989, Debtor, Deborah J. Lee, fil...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration is a Complaint filed by Edwards Mobile Home Sales, Inc. (Debtor) seeking a permanent injunction and enforcement of the automatic stay provision of Section 362 of the Bankruptcy Code against Ohio Casualty Insurance Company (Ohio Casualty) and State of Florida Department of Highway Safety and Motor Vehicles...
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MEMORANDUM OF DECISION AND ORDER GRANTING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND DISALLOWING CLAIM The file in this case indicates that this proceeding was commenced by the filing of a petition under Chapter 7 of the Bankruptcy Code on February 15, 1985. A meeting of creditors pursuant to 11 U.S.C. section 341(a) was scheduled for and held on April 3, 1985. Under Bankruptcy Rule 3002(c) and ...
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I. FACTS In August 1986, R.B. Hawkinson and Beth L. Hawkinson (the Hawkinsons) signed a promissory note in the principal amount of $61,800.00 payable to Lendvest Mortgage, Inc. (Lendvest), secured by a deed of trust on certain property located at 1919 Valencia Street, Napa, California. On or about October 15, 1986, Lendvest assigned the Hawkinsons’ note to the appellants, Frank J. Ratto an...
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MEMORANDUM OPINION BACKGROUND On December 7, 1988, Hon. Art Dodrill (Dodrill), on behalf of the debtor, Bobby Bratton (Bratton), filed a complaint in the United States District Court for the Eastern District of Arkansas, Western Division, against his former bankruptcy attorneys, Mitchell, Williams, Selig, Jackson & Tucker (Mitchell Law Firm). The complaint alleged that the Mitchell L...
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MEMORANDUM DECISION ACTION Debtor/Plaintiff Harry Frederick Claus-sen (“Claussen”) filed an adversary complaint to determine the validity and priority *1012 of a statutory lien arising out of emergency medical services provided to his indigent wife which were paid for by Brookings County (“County”), South Dakota. This matter mandates that the Court balance valued competi...
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MEMORANDUM ORDER This proceeding came on for hearing on the plaintiffs’ motion for summary judgment. Randall L. Seaver appeared for the plaintiffs. Daniel W. Stauner 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. Based on the memoranda and arguments of counsel, and the file in this proceeding...
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MEMORANDUM OPINION On May 1, 1989, Catherine L. Boston (debtor) filed a voluntary petition for relief under the provisions of chapter 7 of the United States Bankruptcy Code. On October 26, 1989, the debtor filed a complaint against the Utah Higher Education Assistance Authority, the University of Utah Student Loan Service Center, the State of Utah, and the trustee, William Randal Wright, seekin...
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ORDER On this 24th day of September, 1990, Defendant’s Motion for Summary Judgment (Docket Entry No. 4) with Brief in Support (Docket Entry No. 5) as well as the Response of Plaintiff to Motion of Defendant for Summary Judgment and Brief in Support (Docket Entry No. 7) came before this Court for consideration. After review of these pleadings, this Court does hereby enter the following Findings of...
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OPINION This matter is before the Court on the complaint of the Trustee against the Debt- or, Sherri L. Lyons, and the State Employees’ Retirement System of Illinois (“SERS”) seeking the turnover to the Trustee of all of the Debtor’s contributions to the retirement system. The parties have stipulated to the material facts. The Debtor filed her voluntary petition pursuant to Chapter 7...
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MEMORANDUM OPINION INTRODUCTION On March 7, 1988, Rickey Martin Ajoo-tian and Gail Marie Ajootian, as husband and wife, doing business as Ajootian Properties # 1 and the Vintage Apartments, filed for relief under Chapter 11 of the *751 Bankruptcy Code. 1 On March 6, 1990, Debtors, through their attorney, Brett Price, filed a Complaint to Determine the Validity...
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DECISION GRANTING JUDGMENT TO THE TRUSTEE IN BANKRUPTCY FOR COMPREHENSIVE BUSINESS SYSTEMS, INC. The following matters are before the Court: Cashflow Design, Inc.’s complaint to confirm validity, priority and extent of its security interest (Adversary Proceeding Number 3-89-0017); U.S. Trustee’s Complaint for Preliminary Injunction (Adversary Proceeding Number 3-89-0018); Cashflow Design,...
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ORDER ON MOTION FOR ENTRY OF CERTIFICATE OF SUBSTANTIAL CONSUMMATION AND APPLICATION FOR FINAL DECREE THIS IS a confirmed Chapter 9 case of Lake Grady Road & Bridge District (Debt- or), a statutorily established special tax district created under the applicable provisions of Chapter 336, Fla.Stat. (1973). The matters under consideration are a Motion for Entry of Certificate of Substantial Consumm...
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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 Nita Pate Aughenbaugh, now known as Nita Pate McKnight, and her attorney, Mary L. Taylor (Ms. Taylor), contesting the dischargeability of a debt owed by Ms. McKnight’s former husband, Rodney Eugene Aughenbaugh (Debtor), to the Plaintiffs. This liability...
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DECISION ON ORDER DETERMINING STUDENT LOAN OBLIGATIONS TO BE EXCEPTIONS TO THE DEBTORS’ DISCHARGES AND ENTERING JUDGMENT 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)(I)-determinations as to the dis...
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ORDER This is a consolidated adversary proceeding commenced by the trustee on June 26, 1990, against thirteen defendants seeking recovery of alleged preferences and fraudulent conveyances. Ten of the answering defendants have filed demands for jury trial.1 Three defendants have not interposed any answer.2 In Granfinanciera v. Nordberg, — U.S. -, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme C...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding arises out of a financing agreement between plaintiff (and debtor in this Chapter 11 bankruptcy case) 604 Columbus Avenue Realty Trust (“the Debtor”) and defendant Capitol Bank and Trust Company (“Capitol Bank” or “the Bank”). The Bank loaned the Debtor $1.5 million to purchase real property located at 604-610 Columbus Aven...
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ORDER ON MOTION FOR CIVIL CONTEMPT THIS IS a Chapter 7 case. The matter under consideration is a Motion for Sanctions against A. Karl Stevens, attorney for the Debtor. The Motion was filed by V. John Brook, the Trustee of this Debtor’s estate.' The Court has considered the Motion, together with the record and argument of counsel, and is satisfied that it is appropriate to treat the Truste...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a confirmed Chapter 11 case, and the matter under consideration is a Motion for Summary Judgment filed by Madeline Sheila Galvin (Galvin) regarding the Debtor’s Objection to the amended proof of claim filed by Galvin. The Court has considered the Motion, together with the record, and finds the facts relevant to a resolution of this matter to be as follo...
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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 claim of non-dis- *838 chargeability asserted by Fresh Western Marketing, Inc. (Fresh Western). The claim of non-dischargeability is based on 11 U.S.C. § 523(a)(4) and the contention of Fresh Western that the obligation owed by Albert H. Pieper (Debt...
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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 due and owing by David J. Pitney (Debtor) to Jules M. Hanken (Plaintiff). Prior to the trial, counsel of record for the Debtor filed a Motion To Withdraw, which was granted, and the Debtor proceeded to try this case in proper pe...
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MEMORANDUM OPINION Pending before the Court is a motion filed by Neal Behimer and Sandra Behimer (debtors), seeking to add creditors after their chapter 7 discharge order. The debtors are seeking to add the claims of Rhonda Lou Ames, Ladene Nielsen, Martha Ann Arey [now Martha Ann Wills], J.B. Carrol, and Duane C. Carrol (Carrol-creditors). These claims are based on a September, 1989 judgment in t...
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MEMORANDUM OPINION AND ORDER ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT This adversary proceeding came before the Court upon the complaint filed by Roster Corporation (hereinafter “Roster”) to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2) and (6) and was heard on December 12, 1989, with the defendant/debtor acting pro se. No answer to the adversary proceeding ...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINIÓN THIS IS a Chapter 7 case and the matter under consideration involves a challenge to the Debtor’s right to a general bankruptcy discharge. The Amended Complaint, filed by the Plaintiff, James N. Kalvin, seeks the entry of an order denying the Debtor’s right to a general discharge pursuant to § 727(a) of the Bankruptcy Code. The facts ...
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ORDER ON MOTION TO DISMISS OR ABSTAIN WITH PROPOSED REPORT AND RECOMMENDATIONS PURSUANT TO BANKRUPTCY RULE 5011 THIS IS a confirmed Chapter 9 case filed by Lake Grady Road & Bridge District (Debtor). The matter under consideration is a Motion To Dismiss or, in the Alternative, To Abstain filed by the Debtor, one of the defendants in this adversary proceeding. The Debtor seeks d...
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MEMORANDUM OPINION Dal-Tile Corporation (“Dal-Tile”) has instituted a turnover action against Mary Reitmeyer, Trustee (“Trustee”) for the bankruptcy estate of Anthony P. Buono, d/b/a Anthony Buono Floors & Walls (“Debtor”), in which Dal-Tile Corporation (“Dal-Tile”) seeks to recover $15,931.62 from funds which Trustee received from Max Construction Co., Inc. (“Max”). Dal- *499 ...
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AMENDED OPINION 1 Franklin E. Agnew, III, Chapter 11 Trustee for Sharon Steel Corporation (“Debtor”) filed the within “Application” (“Motion”) seeking to have this court decide a tax issue involving the identity of the component members of the Unitary Group which includes the Debtor, for California Franchise Tax purposes. The Franchise Tax Board of the State of California (“Board”) has entered a s...
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ORDER On July 30, 1990, debtor S. Donald Norton filed a motion seeking the disqualification and recusal of United States Bankruptcy Judge Stacey W. Cotton in this individual Chapter 11 case. In order to avoid any question or appearance of impropriety, Judge Cotton, by Order entered August 8, 1990, requested Chief Bankruptcy Judge A.D. Kahn to reassign the motion for disqualification to an...
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MEMORANDUM OPINION Before the Court is a complaint instituted by the trustee consisting of six (6) counts in which he seeks to recover the value of several allegedly improper transfers of debtor’s property to and by the defendants. Defendants deny that the trustee is entitled to recover the value of the transfers under any of the legal theories set forth in the complaint. For re...
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FINDINGS AND CONCLUSIONS This matter is before the Court upon the request of the Debtor-In-Possession for an expedited hearing on its adversary complaint for injunctive relief. The complaint was filed on March 12, 1990 and the trial was commenced and concluded on March 13,1990. The Court announced its findings and conclusions and orders from the bench at the conclusion of the testimony and argu...
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ORDER The matter before this Court is a Motion for Summary Judgment filed by the Debtor seeking judgment in his favor on a § 523(a)(5) nondischargeability claim. The facts as stipulated are as follows: The Debtor, Anthony Boehmer, and the Plaintiff, Janis Schindler, were previously married to each other. Three children were born of the marriage. The couple was divorced on January 24,...
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RULING ON TRUSTEE’S MOTION TO DISMISS A hearing was held on June 11, 1990, on the U.S. Trustee’s motion to dismiss. James H. Cossitt appeared on behalf of the Debtor and John Waters appeared on behalf of the U.S. Trustee. At the conclusion of the hearing, the Court took the matter under advisement and now considers it fully submitted. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2...
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MEMORANDUM AND ORDER This adversary proceeding arises by Complaint of St. Luke’s Hospitals of Fargo, Inc. (Hospital) seeking recovery of unpaid medical expenses incurred by the Debtor. Advancing a plethora of theories, the Hospital first of all claims it has a perfected hospital lien in insurance settlement proceeds unaffected by the event of bankruptcy or exemption claim. In five se...
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MEMORANDUM OPINION This matter comes before the court upon the debtor’s motion for leave to proceed in forma pauperis concerning his appeal presently pending before the Bankruptcy Appellate Panel of the Ninth Circuit. BACKGROUND Debtor filed his petition for relief herein under Chapter 11 of the Bankruptcy Code on July 10, 1990. On July 27, 1990, following a hearing, this court entered an o...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court on a Motion for Reconsideration of Order Approving Application for Compensation and for Payment of Dividends to Creditors filed by Century Bank at Orchard Road (“Century Bank” or “Creditor” herein), Metro National Bank’s Objection, Trustee’s Objection, and Century Bank’s Response to Objections. This Court held a hearing on th...
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*673 ORDER — OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION; APPLICATION FOR TURNOVER OF PROPERTY On December 13, 1989, a hearing was held on Trustee’s application for turnover of property and Trustee’s objection to Debtors’ claim of exemption. The following attorneys appeared on behalf of their respective clients: Casey J. Quinn for Debtors and C.R. Hannan as Chapter 7 Trustee. At the...
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MEMORANDUM DECISION ON MOTION FOR RECONSIDERATION OF SUA SPONTE ORDER STAYING ADVERSARY PROCEEDING AND LIFTING AUTOMATIC STAY This motion for reconsideration poses two issues: (1) whether a bankruptcy court has inherent power to abstain (or defer to state courts) on grounds distinct from the statutory bankruptcy abstentions that are authorized by 11 U.S.C. § 305 and 28 U.S.C. § 1334(c); a...
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MEMORANDUM I. Facts The above-captioned adversary proceeding was commenced on June 4, 1990. Two motions relative to the adversary proceeding are now before the Court: the Commonwealth’s motion to dismiss, which the Court will treat as a motion for summary judgment, and the Debtor’s motion for summary judgment. Both motions were heard on July 25, 1990. Prior to the commencement o...
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*183 ORDER SUPPLEMENTING "ORDER DIRECTING U.S. TRUSTEE TO CONCLUDE 341(a) MEETING” FILED JULY 31, 1990 AND DETERMINING INSUFFICIENCY OF “UNITED STATES TRUSTEE’S SHOW CAUSE STATEMENT ...” AND CONCLUDING § 341(a) MEETING There comes on for consideration the “United States Trustee’s Show Cause Statement Why the § 341(a) Meeting Should Not Be Conclu...
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OPINION AND ORDER ON MOTIONS FOR RECONSIDERATION This matter is before the Court upon motions filed by Chapter 11 debtors, Ashgrove Apartments of DeKalb County, Ltd. (“Ashgrove”) and Shannon Woods Apartments of Union City, Ltd. (“Shannon Woods”), seeking reconsideration of this Court’s Opinion and Order entered August 13, 1990 which granted Federal Home Loan Mortgage Corporation (“FHLMC”) relie...
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OPINION AND ORDER DENYING APPROVAL OF DISCLOSURE STATEMENT L PRELIMINARY CONSIDERATIONS AND JURISDICTIONAL STATEMENT This matter is before the Court upon the requested approval of an Amended Disclo *763 sure Statement (the “Disclosure Statement”) filed by Chapter 11 debtor Cardinal Congregate I and upon this Court’s independent obligation to find that the Disclosure Stat...
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MEMORANDUM OPINION ON DEBTOR’S MOTION TO AMEND SCHEDULE B-4 Debtor Stewart S. Peacock (“Debtor”) has moved to amend his Exemption Schedule B-4 (the “Motion”). Debtor now seeks to claim as exempt from the bankruptcy estate certain property which was not exempt at the time Debtor filed his original schedule. His Motion is brought under 11 U.S.C. § 522(b)(2)(A) and recently enacted Ill.Rev.S...
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MEMORANDUM The trial of the Movant’s request for relief from the automatic stay was conducted on September 19, 1990 and September 21, 1990. At the conclusion of the testimony and argument, the Court announced its determinations and orders from the bench. This matter is a core proceeding pursuant to Section 157(b)(2)(G) of Title 28 of the United States Code in that it is based upon a motion for rel...
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ORDER This matter came before the Court on motion of the Ann Wynia, Commissioner of the Minnesota Department of Human Services, (Commissioner) to dismiss the cross-claims of Defendants Four Seasons Care Centers, Inc. (Debtors) for lack of jurisdiction. Appearances are as noted in the record. The Court having considered the arguments of counsel, having reviewed the files and records pertin...
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JOINT MEMORANDUM OPINION AND ORDER The clerk of this court has brought to the court’s attention that the duly appointed trustee in the within Chapter 7 eases has filed with the clerk written motions to extend the time within which creditors and interested parties may object to the discharge for the reason that the section 341 meeting has been continued. The trustee, Robert E. Craig, a member of th...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW PROCEDURAL POSTURE This case comes before the Court on an adversary proceeding filed to compel the Trustee to avoid the lien of the Internal Revenue Service (IRS) on the Debtor’s vehicles, inventories, and accounts receivable in order to fund the Plaintiff’s administrative claim under 11 U.S.C. § 546(c). Michael G. Trewin represents...
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DECISION ON MOTION FOR SUMMARY JUDGMENT The Chapter 11 debtor, J.T. Moran Financial Corp., and its affiliate corporation, J.T. Moran & Co., Inc., collectively referred to as (“the debtor”) have moved for summary judgment on their adversary complaint against the defendant, Phonetel Technologies, Inc. (“Phonetel”), a corporation having its principal place of business in Cleveland...
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MEMORANDUM OPINION AND ORDER INTRODUCTION The Internal Revenue Service (the “IRS”) filed a Request for Payment (the “Request”) in which it seeks to obtain $229.62 in interest and penalties arising from the trustee’s late filing of the estate’s 1987 tax return. The Trustee filed an Objection to the Request for Payment (the “Objection”), claiming that section 505(b) of the Bankruptcy C...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND ORDER THAT DEBT IS NONDISCHARGEABLE This matter is before the court on the plaintiff Chemical Bank’s Complaint to determine the dischargeability of a debt owed to it by debtor/defendant Patrick J. Neman (hereinafter “debtor”) and plaintiffs Motion for Summary Judgment on its Complaint and debtor’s Memorandum in Opposition. BACKGROUND Debtor, an...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIM OF EXEMPTION, AND DECLARING STATE STATUTE UNCONSTITUTIONAL This Chapter 7 case came on before the Court on July 27, 1989, for hearing on the Trustee’s objection to Debtors’ claim of exemption. Chapter 7 Trustee Mark C. Halverson appeared for the bankruptcy estate. Debtors appeared by Willard L. Wentzell, Jr. Upon the moving and respon...
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DECISION This matter is before the court on the objection of Citizen’s National Bank to confirmation of debtor’s proposed Chapter 13 plan and its motion for relief from stay. I. Facts The Debtor, Carvey Jones, purchased a 1989 Cadillac Brougham on March 31,1989. To do so, he borrowed $31,855.62 from Citizen’s National Bank (CNB). The loan was to be repaid, with interest at t...
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DECISION This opinion addresses two motions. First, the Debtor moves to modify this court’s order of April 30, 1990, which lifted the automatic stay nunc pro tunc allowing Ms. Rose Schrieber (“Schrieber”), the respondent, to take all action necessary and proper to satisfy her secured claim against real property owned by the Debtor and her husband known as Schrieberville Bungalo...
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MEMORANDUM OPINION This matter came before the Court on cross motions for summary judgment. Robert L. Finch, the trustee, seeks a determination that the proceeds of life insurance policies which the defendant Floyd Schrock is to receive as an heir of his deceased parents’ estate are not exempt. The debtor seeks a determination that such proceeds are exempt under New Mexico state law. Having con...
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MEMORANDUM OPINION This matter comes before the court on cross motions for summary judgment. This adversary proceeding was brought by plaintiffs, as creditors of the debtor, Gold Key Properties, Inc., against the defendant, as the trustee in bankruptcy, herein, seeking a declaration of this court that plaintiffs hold a valid and properly perfect: ed security interest in the debtor’s interest,...
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SUPPLEMENTAL ORDER REGARDING APPOINTMENT OF RETIRED NONUNION EMPLOYEES COMMITTEE On October 4, 1990 this Court authorized the appointment of an Official Retiree’s Committee, pursuant to § 1114 of the Bankruptcy Code, to serve as the authorized representative of the Debtors’ nonunion employees retired as of January 15, 1990, who are participants under Debtors’ retiree medical, dental and w...
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MEMORANDUM AND ORDER Before the court is a contested petition to commence an involuntary Chapter 7 bankruptcy proceeding. Ruan Leasing Company (Ruan) filed the involuntary petition against Eberhart Moving & Storage, Ltd. (Eberhart) on June 18, 1990. Ruan was the sole petitioning creditor. In its petition, Ruan averred, inter alia, that it was “without knowledge of cr...
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DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING BANKRUPTCY CODE § 547(c)(4) As with much in life, timing here is everything. The precise question before me is whether the “transfer” contemplated by the subsequent advance defense to a preference contained in § 547(c)(4) of the Bankruptcy Code (11 U.S.C.A. § 547(c)(4) (West 1979)) (the Code) occurs on the date a debtor delivers a ...
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MEMORANDUM OF DECISION This matter comes before the Court on the motion of the Chapter 7 Trustee for Financial Corporation of America (“FCA”) to compel the production of documents by New West Federal Savings and Loan Association (“New West”) and American Savings Bank, FSB (“ASB”), and on the motion by New West, ASB, and the Federal Deposit Insurance Corporation (“FDIC”) for a protective o...
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MEMORANDUM OF OPINION ON MOTION TO BE RELIEVED FROM THE AUTOMATIC STAY On February 16, 1990 First Security Bank of Utah, N.A. (First Security) filed suit against Cimarron Commodities, Inc., and various other parties in the United States District Court for the Northern District of Texas, Lubbock Division, No. CA-5-90-0034W. The complaint alleged that the defendants, both named and unnamed, parti...
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MEMORANDUM OPINION AND ORDER APPROVING SETTLEMENT AGREEMENT The only issue before the court is whether a proposed settlement agreement for division of post-petition rents between debt- or Foxhill Place Associates and secured creditor Travelers Insurance Company is reasonable. William R. Riley and William *710 C. Hanes, limited partners of debtor, objected to the settlement. T...
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DECISION ON FIRST EASTERN BANK’S DEMAND FOR A JURY TRIAL ON COATED SALES, INC.’S PREFERENCE ACTION I. FACTS On or about October 23, 1987, Coated Sales, Inc. (“CSI”) borrowed $5,000,000 from First Eastern (the “First Eastern Term Loan”), pursuant to a 1-year unsecured term loan agreement. The First Eastern Term Loan was evidenced by a demand note, dated as of the same day. The First E...
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ORDER ON MOTION TO CORRECT CLERICAL MISTAKES, TO VACATE JUDGMENT AGAINST OMC SERVICES, INC. AND TO ALLOW DMC SECURITY TO RESPOND TO COMPLAINT ALLEGATIONS This cause came on for consideration upon the Plaintiff’s Motion to correct two “clerical” mistakes in Plaintiff’s previous pleadings, to vacate the default judgment taken against Defendant OMC Services, Inc., and to permit Defendant DMC Security...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This cause came on for trial on February 6, 1990, on the Plaintiff’s Complaint against Defendants, Teamsters Union Lo*411cals 135, 413, 637 and 957 and Truckdrivers Union Local 407. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the General Order of Reference entered in this District. This matter is a core p...
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OPINION ON DISMISSAL OF INVOLUNTARY PETITION INTRODUCTION The Debtor, Centennial Insurance Associates, is an insurance agency. On February 16, 1990, an involuntary Chapter 7 bankruptcy petition was filed against the Debtor pursuant to 11 U.S.C. § 303. The petitioning creditors were Commercial Union Insurance Company, Stanley Dickinson, and Elizabeth Dickinson. On March 12, 1990, The Hartford ...
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DECISION AND ORDER Heard on March 27, 1990 on the Trustee’s Objection to the Priority Administrative Claim of Horizons Hotel Corporation (“Horizons”), filed on March 15, 1990. After hearing, counsel were requested to file legal memoranda addressing two issues: (1) whether Horizon’s claim is time barred, and (2) whether such claim constitutes an administrative claim pursuant to 11 U.S.C. §§ 507(a)...
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OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT This matter is before the Court on the Motion of Defendant, Midwest Drywall, Inc. (“Midwest” or “the Defendant”) for Vacation of Stay, for Summary Judgment and for Award of Reasonable Attorneys’ Fees and Costs. The Plaintiff filed a Cross-Motion for Summary Judgment against Midwest. The Court has jurisdiction over this matter pursuant to 28 U.S.C....
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DECISION AND ORDER Before the Court for determination is Rhode Island Hospital Trust National Bank’s Motion to Dismiss Belmont Realty Corporation’s multi-count Complaint seeking monetary damages. Upon consideration of the memoranda submitted in support of and in opposition to said motion, and assuming as we must the truth of the allegations in the complaint, pursuant to FED.R.CIV.P. 12(b)(6),...
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DECISION AND ORDER Heard on April 6, 1990 on the Amended Application of Reinaldo Quinones & Company, the accountant and external auditor of the debtor, for Nunc Pro Tunc Allowance of Interim Compensation, for accounting services rendered from August 1, 1989 to February 14, 1990. The Creditors’ Committee and Abbott Laboratories Puerto Rico, Inc. object to the application, for the reason that Quino...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW AND MEMORANDUM OPINION This cause came on for trial commencing August 1, 1988, upon the Complaint filed by Pan-Western Life Insurance Company (“Pan-Western” or the “Plaintiff”). This 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 under 28 U.S...
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MEMORANDUM OPINION Before me for resolution is the motion of HHL Financial Service, Inc. (HHL) for nunc pro tunc approval of its employment by the debtor as a specialized collection agency. By consensual order entered January 25, 1990 I appointed HHL as agent for the debtor, effective as of November 14, 1989 (the date HHL's application seeking appointment was filed). In that or...
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MEMORANDUM OPINION This matter comes before the Court on the motion for imposition of sanctions under Federal Rule of Bankruptcy Procedure 9011 filed by The CIT Group/Equipment Financing, Inc. (“CIT”), against Sam Alberto (the “Debtor”) and his attorneys Chill, Chill & Radtke, P.C. (“CC & R”), and the motion for an order to show cause filed by the Debtor against CIT and one of its attorne...
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MEMORANDUM This is a proceeding brought by LESLIE BETH BASKIN (“the Trustee”), successor to Defendant JAMES WADE (“Wade”) as Trustee in this voluntary joint Chapter 7 bankruptcy case, against Wade and his counsel, MEEHAN AND MEEHAN (“Mee-han”), to recover damages to the estate allegedly caused by the Defendants’ breaches of their respective duties as trustee and counsel to the trustee. ...
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DECISION RE MOTIONS TO DISMISS CROSS-CLAIM In this adversary proceeding, defendant Walter C. Evans filed a cross-claim against the other defendants in the case, Timothy Smith, Edgar Shott, and Patricia Shott. Smith has filed a motion to dismiss the Evans’ cross-claim against him on grounds of res judicata. Defendants Edgar Shott and Patricia Shott have also moved to dismiss the Evans’ cross-claim ...
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DECISION ON MOTION TO AMEND PROOF OF CLAIM OF ESTATE OF J. RICHARD VERKAMP, SR.; ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT; DISMISSAL OF PROOF OF CLAIM On October 18, 1988, claimant filed a motion to allow an amended proof of claim of the Estate of J. Richard Verkamp, Sr. (hereafter “claimant”). KDI filed a memorandum in opposition to the motion, and claimant then filed a reply memorandum...
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*150 MEMORANDUM DECISION Presently pending is the third application for interim allowance of fees and reimbursement of expenses filed by Chapter 11 trustee Richard M. Kipperman (“trustee"). At issue is (1) the propriety and reasonableness of the fees charged by the trustee; and (2) whether the trustee’s requested compensation may be based on disbursements to suppliers made by the trustee duri...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the court upon the complaint of Leonardi’s International, Inc. (the “debtor”) against Dickerson Enterprises, Inc., Rachel E. Dickerson, Donald F. Dickerson and J.T. Purdue as Co-Trustees, (the “creditors”) for breach of contract and for rescission or reformation of a lease, and the Court having heard the testimony, examined the eviden...
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MEMORANDUM DECISION Presently pending is the application of Christison & Martin (“applicant”) for allowance of fees and reimbursement of costs as counsel for the debtor-in-possession in its Chapter 11 case, and later as counsel for debtor in its Chapter 7 case. At issue is the propriety and reasonableness of attorney’s fees and costs charged by the attorney for the debtor-in-possession. O...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THE MATTER under consideration is a motion for relief from stay and for turnover of property allegedly not part of Debt- or’s estate filed by Gonzales Packing Company (Gonzales). The motion is based upon rights asserted pursuant to the Perishable Agricultural Commodities Act (PACA). 7 U.S.C. §§ 499a-499s (1988). Gonzales contends...
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OPINION On consideration before the Court is the objection filed by the debtor, Sylvia Tindall Levingston (Scott), to the claim of Roy Collins Construction Company, Inc., hereinafter referred to as Collins; response to said objection having been filed by Collins; and the Court having heard and considered same, hereby finds, orders, and adjudicates as follows, to-wit: I. The Cour...
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OPINION On consideration before the Court is a motion-filed by the debtors pursuant to 11 U.S.C. § 522(f)(1) to avoid a judicial lien held by Willie Bullins; response to said motion having been filed by Bullins; and the Court having heard and considered same, hereby finds as follows, to-wit: I. The Court has jurisdiction of the parties to and the subject matter of this proceeding pursuant to 28 U....
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MEMORANDUM RULING Draughon Training Institute, Inc., debt- or-in-possession (hereinafter referred to as “Draughon”), has filed this Rule to Show Cause seeking to have this Court declare that the actions of the defendant, Texas Education Association (hereinafter referred to as “TEA”), in denying the Certificate of Approval of Draughon to be null and void as in violation of the automatic st...
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ORDER ON OBJECTION TO CLAIM AND MOTION FOR EXTENSION OF TIME TO FILE PROOF OF CLAIM THE MATTER under advisement is Debtors, Michael and Linda Eustons’ Objection to Claim of Creditor, Ralph H. Martin (Martin) and Martin’s Motion for Extension of Time to File Proof of Claim. The Court reviewed the Objection, the Motion, and the record, heard argument and testimony of counsel and finds the r...
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OPINION On consideration of the motion to dismiss or, in the alternative for summary judgment, filed by the defendants, Bank of Falkner, and James McMillin, President of the Bank of Falkner; response to said motion having been filed by the plaintiff, Kerry Whitten Hill; and the Court having reviewed said motion, response, supporting exhibits and affidavits, hereby finds and adjudicates as follows...
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MEMORANDUM DECISION Chapter 13 trustee, Harry W. Heid (“trustee”), objects to the classification of the claim of Chrysler First Financial Services (“Chrysler”) on the ground that the claim is unsecured, and that their alleged lien is voided by the debtors’ § 522(f) election. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and § 157(b)(1) and General Order No. 312-...
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MEMORANDUM RULING AND ORDER The debtors-in-possession in these cases (hereinafter collectively referred to as “Draughon”), operate a number of proprietary schools in Texas, Louisiana and Mississippi. Draughon seeks to sell these schools to W.E. Walker, Inc., a Mississippi corporation (hereinafter “Walker”). The sale is contingent upon Walker’s receiving licensing and accreditation from va...
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OPINION On consideration before the Court is the objection to confirmation of the debtors’ Chapter 13 plan filed by City Finance Company; each of the parties having submitted memoranda of law addressing the issues raised in the said objection; all parties being represented by their respective attorneys of record; and the Court having considered same, hereby finds as follows, to-wit: I. The ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause was tried on October 9, 1990 upon the Amended Adversary Complaint for Reformation, filed by Federal Deposit Insurance Corporation, as Receiver for Sunrise Savings and Loan Association, a Federal Savings and Loan Association (hereinafter “F.D.I.C.”), filed against YARDARM RESTAURANT, INC. (hereinafter “the Debtor”). The interests of the Debtor in ...
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OPINION On consideration before the Court is the objection to confirmation filed by Credit Center of Amory, Inc., hereinafter referred to as Credit Center; both the debtor and Credit Center having appeared in open court with their respective attorneys of record; and the Court having heard and considered same, hereby finds as follows, to-wit: I. The Court has jurisdiction of the parties to a...
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DECISION AND ORDER Heard on September 5, 1990 on the complaint of the Trustee to recover, as a preferential transfer, a $2,442.56 payment to the defendant, Dupuis Oil Company (“Du-puis”), made within ninety days of the filing of the debtor’s bankruptcy petition. The parties have stipulated that a prima facie case exists under § 547(b), and that the only issue before the Court is whether the “...
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OPINION AND ORDER Before the Court is a Motion to Determine Extent, Priority, and Valuation of Security Interest under 11 U.S.C. § 506 filed by First Eastern Bank, N.A. (hereinafter “Bank”). For the reasons provided herein, we find that the Trustee, John J. Thomas, Esquire, (hereinafter “Trustee”) has a lien in a 1982 Mercedes automobile pursuant to 11 U.S.C. § 544(a) and that the Bank’s ...
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DECISION AND ORDER Heard on July 17, 1990 on the Motion of the Rouse Company 1 , (“Rouse”), for an order directing the debtor to perform certain obligations pursuant to 11 U.S.C. § 365(d)(3), to wit: payment of postpetition rent, late charges, attorneys’ fees and costs. The debtor operates a chain of women’s high quality retail clothing stores located throughout the Eastern sta...
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MEMORANDUM OPINION Plaintiffs Edward J. and Margaret T. Konieczka (“plaintiffs”) seek in this adversary action to have a debt owed to them by defendant Tom Hodak (“Debtor”) declared nondischargeable pursuant to 11 U.S.C. § 523(a)(9). They allege that the debt arises from a judgment entered in state court wherein liability was incurred by Debtor as a result of his operation of a motor vehicle wh...
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MEMORANDUM AND ORDER Before the Court for determination are objections by the debtor, Roth American, Inc. (hereinafter “debtor”) to three proofs of claim filed on behalf of former employees of the debtor represented by Local Union No. 401 of the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America, (hereinafter “Union”). Two of the proofs of claim, name...
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DECISION RE MOTION OF MORTGAGEES CONCERNING DEBTOR’S USE OF RENTS AS CASH COLLATERAL The Joint Motion Pursuant to 11 U.S.C. § 363(e) of TNE Funding Corporation (“TNE”) and Century Pension Income Fund XXIII (“Century”) to Prohibit Debt- or’s Use of Cash Collateral must be denied. The debtor operates an office building in the District of Columbia pursuant to a long-term ground lease. TNE an...
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ORDER ON MOTIONS TO DISMISS THIS CAUSE came on for hearing with notice to all parties in interest upon submissions entitled Third Motions To Dismiss and Notices of Default in Adequate Protection (Motions), filed by Glendale Federal Bank, F.S.B. (Glendale), in each of the above-captioned Chapter 11 cases. Through the Motions, Glendale contends that these cases should be dismissed and, in the alter...
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ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE EXPENSE THIS IS a Chapter 11 reorganization case and the matter under consideration is an Application for Payment of Administrative Expense filed by Banks Lumber Co., Inc. (Banks). The facts as established at the final evidentiary hearing relevant to the Application are as follows: Penthouse Travelers of Aripeka, Inc. (Debtor), is a ...
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MEMORANDUM OPINION The United States Trustee has requested the Court to alter its judgment and, instead of dismissing this case, enter an order converting it to a case under Chapter 7. The Debtor opposes this motion. For the reasons explained below, the U.S. Trustee’s motion will be denied. This Court’s memorandum opinion attempted to explain that the fundamental problem with converting a Cha...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THESE ARE four consolidated Chapter 11 cases involving Lakeside I Corporation (Lakeside I), Edward C. Tietig (Tietig), Emerald Lake Village (Emerald Village) and Emerald Lake Development & Construction, Inc. (Emerald Development), collectively referred to as the Debtors. The matter under consideration is a Motion for Summary Judgment filed by Citibank ...
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ORDER GRANTING MOTION FOR AWARD OF ATTORNEYS’ FEES AND COSTS THIS CAUSE came on for consideration upon a Motion for Award of Attorneys’ Fees and Costs pursuant to § 523(d) of the Bankruptcy Code. The Motion is filed by Donald J. Jeffares (Debtor) in the above-captioned Chapter 7 case, who was named as the Defendant in the above-captioned adversary proceeding filed by Chevy Chase Federal S...
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MEMORANDUM In each of these cases, debtor’s counsel has filed an application for approval of attorney’s fees. The applications are problematic because debtor’s counsel was paid after commencement of the cases without leave of the court. The fee applications are as follows: *528RONALD SCHROEDER AND KATHY SCHROEDER BK89-40480 Application for Attorney’s Fees (Fil. #49) Supplement to Application (Fil...
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ORDER ON APPLICATION FOR ORDER TO SHOW CAUSE THIS IS a confirmed Chapter 11 case and the matter presented for this Court’s consideration is an Application for Order to Show Cause, treated as a Motion (Motion) filed by Aquaproof Roofing Company, Inc. (Debtor). The Debtor in its Motion requested this Court to issue an Order to Show Cause directing Claflin Garst, Jr. (Mr. Garst) and his attorney, Er...
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DECISION This action is based upon an alleged violation of the automatic stay by Marine Bank West (“the Bank”). The trustee and *642 the Bank have filed cross-motions for summary judgment. The Bank has also filed a motion for annulment of the automatic stay. A stipulation of facts, briefs and oral arguments have been presented to the court. The issues are: 1. Did th...
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*217 ORDER ON MOTION FOR RELIEF FROM STAY THIS IS a Chapter 11 reorganization case and the matter under consideration is a Motion for Relief from Stay filed by Home Savings of America, N.A. (Home Savings). Home Savings in its Motion contends that the automatic stay should be lifted for cause “because of a violation of the so-called “due-on-sale” clause of the mortgage held by Home Savings. Ba...
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FINDINGS AND CONCLUSIONS The matter before the Court is an adversary proceeding initiated by the Bank of Washington, Plaintiff, against Delbert Hunter, Debtor. A trial was held on October 10, 1990, wherein both parties presented testimony and evidence. At the outset of the trial, Count I of the Adversary Complaint was dismissed upon the Plaintiffs request, and the matter proceeded upon the allegat...
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MEMORANDUM DECISION ACTION This decision adjudicates whether Chapter 7 debtors may reopen their closed case for the purpose of amending their schedules by listing an inadvertently omitted debt. The Court maintains jurisdiction under 28 U.S.C. § 1334, and this is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and (J). This memorandum constitutes findings of fact and conclusions of law purs...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case and the matter under consideration is a Motion for Summa *220 ry Judgment filed by Diane L. Jensen, Trustee (Trustee), the Plaintiff in the above-styled adversary proceeding. In the Motion, the Trustee alleges that there are no genuine issues as to any material facts and she is entitled to a judgment as a matter of law in her favor...
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DECISION This adversary case requires a determination of whether the activities of Rodney A. Larson (“Larson”) in the bankruptcy case of John M. Webster (“Webster”), a pro se debtor, constituted the unauthorized practice of law. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) and § 157(b)(2)(0). An evidentiary hearing was held on August 9, 1990. Larson faile...
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MEMORANDUM OPINION On January 24, 1989, this Court entered a Journal Entry of Judgment which incorporated certain findings of fact and conclusions of law stated on the record in open Court. In the Journal Entry of Judgment the Court found that the Debtors filed their petition in Bankruptcy on June 7, 1983, and that thereafter on June 18, 1983, Citicorp National Services, Inc. (“Citicorp”)...
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FINDINGS AND CONCLUSIONS The Trial of the Debtor’s Complaint was commenced and concluded on October 16, 1990. Upon consideration of the record as a whole, the Court announced its Findings and Conclusions and Orders from the bench on the same date. These Findings and Conclusions and Orders constitute the Final Orders of this Court. The Debtor's Complaint requests payment of a pre-petition business ...
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MEMORANDUM RE PARTIAL SUMMARY JUDGMENT MOTION OF IRS AND DEBTOR’S PROPOSED SETTLEMENT INDEX Page 1. RULING ON IRS MOTION FOR PARTIAL SUMMARY JUDGMENT ...26 1.1. Factual Background. ...27 1.2. IRS Partial Summary Judgment Motion. ...27 1.3. The Alaska Statute for Transferring Licenses. ..27 1.4. Federal Tax Lien Statute. ...27 1.5. Ninth Circuit Precedent. ...28 1.6. Conclusion. ...
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DECISION AND ORDER DENYING CONFIRMATION OF DEBTORS’ PROPOSED CHAPTER 13 PLAN Before the court is an objection of CityWide Building Finance Corporation (“CityWide”) to confirmation of the proposed chapter 13 plan of James G. McCullough and Fostina McCullough, debtors. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This matter is...
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MEMORANDUM REGARDING CROSS SUMMARY JUDGMENT MOTIONS Index Page PROCEDURE AND HOLDING 538 H JURISDICTION. 539 (M FACTS. 539 CO TEAMSTER TRUST’S CLAIM AGAINST WISE ARISING OUT OF WES-540 ^ cn 4^ té o té o £ té Eh té « té O té té xn i-3 fed > K xn >-3 fed té i-3 té Cj xn *-3 xn O t-1 > CJi 4^ N) cn 4^ 0...
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MEMORANDUM AND DECISION The question presented is whether a debtor may avoid a judicial lien pursuant to 11 U.S.C. § 522(f) if the lien is based on a debt claimed to be nondischargeable pursuant to 11 U.S.C. § 523(a)(7). Ira H. and Elizabeth H. Gartrell moved the Court for an Order pursuant to 11 U.S.C. § 522(f) to avoid two judicial lines of the Workers’ Compensation Board of the State of New ...
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MEMORANDUM OPINION Creditor Bank of New England has filed a motion to dismiss, which raises the same issue as this court’s contemporaneous order to show cause re dismissal as non-qualified debtor, viz, whether these trusts are “business trusts” within the meaning of the Bankruptcy Code. This Court has jurisdiction under 28 U.S.C. § 157(b)(2)(A), and *3 the general ...
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MEMORANDUM OPINION Carl and Bella Schachter, principals of Debtor, have objected to the distribution of property proposed by the Chapter 7 trustee. They maintain that they are subrogat-ed to the rights of First Seneca Bank, the Internal Revenue Service (“IRS”), and Pittsburgh National Bank (“PNB”) because they, i.e., the Schachters, have paid debts owed by Debtor to these creditors. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE having come before the Court upon the complaint of Terry Ellen Fixel and August La Rocco (the “creditors”) against Michael Marsowicz and Debbie Reichkind (the “debtors”), and Interiors By Michael Marsowicz, Inc., to determine the dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6), and the Court having exam...
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STATEMENT OF THE CASE Mary C. Griffith, Plaintiff, filed a “Complaint for Damages for Conversion of Funds; for Equitable Relief Against Both Defendants; and Under Title 11 USC § 523(c), for a Decree as to Arthur Griffith III that the Obligations are Non-Dis-chargeable” on June 5, 1990. Arthur Griffith III, Debtor, Defendant, and First Georgia Financial Corporation, Debtor, Defendant, filed timely...
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MEMORANDUM AND ORDER The debtors, who are grain and dairy farmers, executed “future delivery” contracts in the spring of 1988 with the defendant, Rakers Elevator, Inc. (“Rakers”), by which they sold soybeans to Rakers at a specified price to be paid upon delivery of the grain in the fall. During the course of the year, the debtors purchased seed, fertilizer, and chemicals from Rakers on a credit b...
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OPINION The debtors objected to the Internal Revenue Service’s (“I.R.S.”) penalty assessment pursuant to Internal Revenue Code § 6672 on the grounds that the assessment, which occurred during a prior bankruptcy case, violated the automatic stay of 11 U.S.C. § 362 and was, therefore, void. The United States appeals the order granting the objection. We REVERSE. FACTS On February 2...
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OPINION AND ORDER There are two matters pending before the Court. The motion for summary judgment filed by Chemical Bank (“Chemical”) and the opposition thereto by debtor/plaintiff, and the request to lift stay filed by Chemical. The Court will only address at this time the request to lift the automatic stay provisions of 11 U.S.C. § 362(a). Factual Setting On September 27, 1989 Nasco fil...
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MEMORANDUM DECISION This matter came on for hearing on Marley Orchards Income Fund I Limited Partnership’s motion for an order granting a preliminary injunction enjoining defendants, Rex M. Walker and Ruth L. Walker, from continuing prosecution of an action pending in Superior Court for Franklin County, Washington against Marley Orchards Corporation and William J. Gammie. Marley Orchards Inco...
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OPINION A. INTRODUCTION The instant proceeding prompts this court to consider, for the first time, the scope of a proof of claim filed by an assign-ee of a mortgage which had, in the past, been assigned to the United States Department of Housing and Urban Development (“HUD”) after HUD had accepted the mortgage in its Mortgage Assignment Program, established in 12 U.S.C. § 1715u(b) (“...
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MEMORANDUM OPINION Debtor filed his petition for relief under Chapter 7 on August 29, 1989. November 21, 1989 was established as the filing deadline for 11 U.S.C. § 523(c) and 11 U.S.C. § 727 complaints. First Chicago Credit Card requested an extension on said deadline and received it. First Chicago filed a complaint in two counts under 11 U.S.C. § 523. Count I alleged that debtor had issued a cas...
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MEMORANDUM OF OPINION AND ORDER The Debtors, Sis Corp. and Sisters International, Inc. (Debtors) are before the Court for a confirmation hearing on their amended joint plan of reorganization (Plan). Although characterized as “reorganization”, it is undisputed that the Plan proposes a liquidation of the Debtors’ assets. By way of chronology, the Debtors caused to be filed their voluntary petitio...
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MEMORANDUM OF OPINION AND ORDER I. The matter before the Court is the motion of Randolph Richard McKinney (Debt- or), to show cause why Pennsylvania Higher Education Assistance Agency (PHEAA) should not be held in contempt for having violated the injunctive provisions of § 524 of the Bankruptcy Code. [11 U.S.C. § 524(a)(2) ]. Upon a duly scheduled hearing, the Court has examined the ...
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MEMORANDUM OPINION This matter comes on to be heard upon the Second Amended Complaint of Carol Ann Lindley, a Creditor and ex-wife of the Debtor and Fred W. Woodson, Trustee, asking that certain transfers of the Debtor be found to be fraudulent, that the debt of Carol Ann Lindley be held to be nondis-chargeable and that the Debtor be denied a discharge of his debts. The Defendants have de...
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MEMORANDUM DECISION Express Freight Lines, Inc. can best be described as a debtor under siege. This court is now called upon to decide the debt- or’s motion to reject a collective bargaining agreement, the creditors’ committee’s motion to appoint a Chapter 11 trustee or, alternatively, to convert the case to one under Chapter 7. These motions are core proceedings under 28 U.S.C. § 157(b)....
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MEMORANDUM OPINION AND ORDER This matter comes on before the Court pursuant to the April 16, 1990, hearing on the Motion of Debtor, Patricia Rae Crouch, For Determination of Debtor’s Joint Tenancy Interest. The debtors, Edward Leroy Crouch and Patricia Rae Crouch, appeared in person and by and through their attorneys, F. Stannard Lentz and John P. Bennett. The Unsecured Creditors’ Committee app...
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MEMORANDUM, OPINION AND ORDER This matter comes before the court on the cross motions of the trustee, Pamela S. Hollis, and the State Employees’ Retirement System of Illinois (“SERS”) for summary judgment pursuant to Rule 56 of the Fed.R.Civ.P. which is applicable to these proceedings by virtue of Bankruptcy Rule 7056. For reasons explained in the opinion, SERS’s motion for summary judgme...
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DECISION AND ORDER S.E. Nichols Inc., the debtor and debtor in possession herein (the “Debtor” or “SEN”), seeks an order pursuant to section 365(a) of chapter 11 of Title 11 of the United States Code, 11 U.S.C. § 101 et seq. (the “Code”), authorizing the rejection of an unexpired lease for premises located on the fourth floor 275 Seventh Avenue, New York, New York (the “Fourth ...
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MEMORANDUM OPINION This matter comes to be heard on the joint motion of the Debtors and the Committee for the Unsecured Creditors (the “Committee”) for summary judgment pursuant to Federal Rule of Civil Procedure 56. In addition, Home Savings Association of Kansas City, F.A. (“Home Savings”) filed a cross motion for partial summary judgment. For the reasons set forth herein, the Court hav...
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OPINION This matter came on for consideration of the Trustee’s Final Report, Application for Compensation and Application to Close Case and Discharge Trustee pursuant to a regularly scheduled hearing on July 11, 1990, in Lufkin, Texas. This opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule of Procedure 7052 and disposes of all the issues presen...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case in which Terry E. Smith, the Trustee (Trustee) for the estate of Stephen L. Smith (Debtor), no relation, filed 137 adversary proceedings against various defendants who were all investors in an investment scheme conducted by the Debtor which ultimately turned out to be a “Ponzi” scheme. The matters presently under c...
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OPINION This matter came on for consideration of two Applications for Approval of Employment of Attorneys pursuant to a regularly scheduled hearing of August 15, 1990. While the Applications to Employ arise in two separate cases, the Court has consolidated these applications for purposes of this hearing only due to a commonality of the factual basis. This opinion constitutes findings of a...
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DECISION ON MOTION TO TRANSFER VENUE STATEMENT OF FACTS A. Background On November 22, 1990, Vienna Park Properties, (the “Debtor”), filed a petition under chapter 11 of the United States Bankruptcy Code in the Southern District of New York. Movants, United Postal Savings Association (“United Postal”) and Trustbank Savings, F.S.B. (“Trustbank”), (collectively the “Secured Cr...
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MEMORANDUM OPINION At Mobile in said District on the 11th day of September, 1990, before Arthur B. *587 Briskman, Bankruptcy Judge: This matter came on for hearing on the Debtor’s objection to Claim No. 53 of Colombia Joint Venture. After due deliberation on all testimony, pleadings, stipulation of facts, arguments and briefs subsequently filed, this Court concludes and order...
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OPINION This matter came on for consideration of Creditor’s Objection to Confirmation of Chapter 13 Plan pursuant to a regularly scheduled hearing on August 15, 1990, in Tyler, Texas. This opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 7052 and disposes of the issues presented to the Court. FACTUAL AND PROCEDURAL BACKGROUND Jackie R. Bush and ...
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THIS is a Chapter 7 liquidation case and the matters under consideration are Motions for Summary Judgment filed by the Debtor, Barry D. Haught (Debtor), and the Plaintiff, Resolution Trust Corporation (RTC), as successor in interest to Freedom Savings & Loan Association (Freedom). It is the contention of both RTC and the Debt- or that there are no genuine issues of material fact and that this adve...
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MEMORANDUM OPINION The matter before the court for decision is the dischargeability of claims made by J.C. Arney against both Matthew T. Moran and David M. Mangrum. The complaints against Mangrum and Moran are identical and were consolidated for trial. They involve multiple counts and allege that discharge should be denied under 11 U.S.C. § 523(a)(2)(A), section 523(a)(4) and section 727(...
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MEMORANDUM The issue is whether Tennessee law permits an exemption in the cash surrender value of an insurance policy on the life of the debtor where the beneficiary is the debtor’s sole proprietorship. The debtor may not exempt the insurance policy. I. In 1979, Marion Thurman Builder, a sole proprietorship, purchased an insurance policy on the life of Marion Thurman, naming *100“Marion Thurman B...
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ORDER DISAPPROVING DEBTORS’ APPLICATION TO EMPLOY FARM & GROVE REALTY COMPANY AND SUSTAINING OBJECTIONS BY THE U.S. TRUSTEE AND CITIBANK (FLORIDA), N.A. THIS CAUSE came on for hearing with notice to all parties in interest in the above-captioned consolidated Chapter 11 cases, upon an Application filed by Emerald Lake Development & Construction Company (Debtor) to retain Ackley Realty, Inc...
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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 admittedly due and owing by Dixie Lee Dorsey (Debtor) to American Express Travel Related Services, Inc. (American Express). The claim of nondis-chargeability is set forth by American Express in a three-count Complaint. The c...
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*164 OPINION This matter came before the court upon the debtor’s objection to claim # 1 of the Internal Revenue Service (“IRS”). The debtor is represented by Magar E. Magar of Portland, Oregon and the IRS is represented by Karen E. Stratton, Special Assistant U.S. Attorney for the District of Oregon. Findings of Fact The following facts do not appear to be disputed. This case was filed on...
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ORDER The Debtors jointly move to extend to August 17, 1990 the time during which they may file motions to assume or reject certain leases. Objections have been filed by various landlords holding leases of stores in which the Debtors have discontinued operations which the Debtors have included within their motion because they wish further time to market the leases. The court entered into the recor...
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DECISION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT The trustee in bankruptcy of two out of three entities which sold their car rental *314 businesses to the plaintiff, Dynasty Express Corp. d/b/a General Rent-A-Car Corp. (“Dynasty”), has moved for a partial summary judgment dismissing the first, second and ninth claims in Dynasty’s adversary action. The third selling entity, B...
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DECISION ON MOTION REGARDING RETAINER PAID TO DEBTOR’S ATTORNEYS Pastifico Matagliati, S.p.A., and Sefino, S.p.A., two unsecured, general creditors of the Chapter 7 debtor, D.L.I.C., Inc., object to the $17,000.00 retainer fee for legal services which the debtor paid to its attorneys before filing its Chapter 11 case. The Chapter 11 case was ultimately converted to a ease under Chapter 7 ...
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RULING ON FCBO’s MOTION FOR SUMMARY JUDGMENT The debtors, Glenn and Donna Freese (the FREESES), have objected to a proof of claim filed by Farm Credit Bank of Omaha (FCBO). Debtors contend that FCBO’s claim includes excessive interest charges. The excessive interest allegedly results from a breach of the Farm Credit Act. Debtors ask that the claim of FCBO be reduced. FCBO filed a motion f...
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DECISION ON MOTION FOR ORDER AUTHORIZING DEBTORS TO SELL THE THOMSON McKINNON INVESTMENT MANAGEMENT BUSINESS Thomson Advisory Group, Inc. (“TAG”), a corporation formed by an investment group and which includes three key employees of a publicly-held limited partnership, Thomson, McKinnon Asset Management, L.P. (“the Partnership”) seeks to acquire the debtor’s interest in the Partnership. The deb...
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ORDER DISMISSING CASE On May 24, 1990, the Court held a hearing on possible dismissal of the Debtor’s case under 11 U.S.C. § 707(b). The Debtor appeared with his attorney, L. Don Snow. The U.S. Trustee and Chapter 7' Trustee were both given notice of the hearing but did not attend or participate in the proceeding. The Court, having examined the Debtor and having heard the evidence and argumen...
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OPINION On August 28, 1990, the consolidated Debtors filed a motion to assume and assign to MY, Inc. (“MY”) a ten year lease executed in June of 1989 by the Debtor Sweats PX, Inc. as lessee with Evergreen Plaza Associates (“Evergreen”) as lessor and covering premises at Evergreen Plaza Shopping Center in Evergreen Park, Illinois. Evergreen opposes the motion on the ground that it was not ...
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DECISION ON ORDER TO SHOW CAUSE FOR AN ORDER PERMITTING DEBTOR TO ASSUME EXEC-UTORY CONTRACT The Chapter 11 debtor, Skylark Travel, Inc., has moved pursuant to 11 U.S.C. *353 § 365 to assume the Agent Reporting Agreement between itself and Airline Reporting Corporation (“ARC”) and for certain affirmative relief as follows: (1) restraining ARC from requiring any additional bon...
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MEMORANDUM OPINION This cause comes on for hearing upon the motion of Arkansas Valley State Bank (“AVSB”) requesting issuance of an order to the Trustee to disburse the proceeds generated from the sale of inventory consisting of approximately sixty (60) bicycles and miscellaneous parts. The parties stipulated to the facts as follows: 1. On November 21, 1985, the Debtor entered i...
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DECISION ON MOTION TO DISMISS Plaintiff, The Highway Equipment Company, filed a Chapter 11 bankruptcy case in this court in 1985, and on April 1, 1988, we confirmed a Chapter 11 plan in the case. The plan contemplates that litigation on behalf of the debtor will be carried on after confirmation. A Liquidating Trust Agreement was approved by this court as part of the Chapter 11 plan. All p...
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DECISION ON COMPLAINT FOR AN ORDER DETERMINING PARTIES’ RIGHTS IN CERTAIN UNIMPROVED REAL ESTATE The plaintiff, Lighthouse Bluffs, Corp., has commenced an adversary proceeding pursuant to Bankruptcy Rule 7001 for a declaratory judgment determining the parties’ interest in certain unimproved real estate and for other equitable relief against the Chapter 11 debtor, Atreus Enterprises, Ltd. ...
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DECISION ON MOTION FOR AN ORDER FURTHER EXTENDING THE DURATION OF A NOTICE OF PENDENCY The trustee in bankruptcy of the above-captioned debtors in his adversary proceeding against the defendant, Tri-Equities, Inc., has moved for an order extending the duration of a notice of pendency {“lis pen-dens ”) filed with the New York County Clerk on September 30, 1987. The trustee’s motion is made pursuan...
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ORDER REGARDING EMPLOYMENT OF PROFESSIONAL This ease came on for hearing on the motion of Inter-City Products Corporation. Michael B. Fisco and John C. Thomas appeared for Inter-City; Robert T. Kugler appeared for the debtor; Linda S. Jensen appeared for the Unsecured Creditors’ Committee; Charles A. Durant appeared for Robert F. Stahl, Jr.; Katherine A. Constantine appeared for John Neil...
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OPINION AND ORDER ON MOTIONS TO DISMISS, RELIEF FROM STAY AND TO EXCUSE THE RECEIVER’S COMPLIANCE WITH 11 U.S.C. § 543(b) This matter is before the Court upon the motions filed by Florida Federal Savings Bank (“Florida Federal”) seeking to transfer this Chapter 11 case to the United States Bankruptcy Court for the Middle District of Florida, relief from the automatic stay, dismissal of this cas...
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Habbo Fokkena is the trustee in these consolidated liquidation cases. In this adversary proceeding, he seeks a determination that First National Bank of Glidden (BANK) has no security interest in the proceeds of the sale of certain estate property. Trial was held in Fort Dodge, Iowa on January 19, 1990. Having considered the evidence and the arguments of the parties, the court now issues this d...
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MEMORANDUM OPINION This matter came before the Court to consider confirmation of the debtors’ chapter 13 plan. Associates Financial Services Company of New Mexico, Inc. (“Associ *577 ates”) objected to confirmation of the plan. The parties submitted briefs on the issue of whether the debtors can modify Associates’ claim. The dispute centers on whether the prohibition on modification found in ...
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DECISION ON MOTION FOR SUMMARY JUDGMENT The plaintiff, Harvey S. Barr, as Trustee of the debtor, Daniel H. Overmyer (“the Trustee”), has moved this court, pursuant to Fed.R.Civ.P. 56, which is made applicable to this adversary proceeding by Bankruptcy Rule 7056, for summary judgment on all counts of a complaint filed with this court on or about April 24, 1985 (the “Complaint”). The Compla...
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ORDER ON MOTION FOR DIRECTED VERDICT This cause came on for trial on September 11 and 12, 1990, upon the Second Amended Complaint filed by Frederick Ransier, Trustee in the Chapter 7 case of David and Francine Young. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the General Order of Reference entered in this district. By previous Order of this Court, this has been d...
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ORDER ON MOTION FOR APPROVAL OF SETTLEMENT OF BANNER ADVERSARY This cause came on for hearing commencing April 25, 1990, to consider the Trustee’s Motion for Approval of Settlement of Banner Adversary, and objections thereto by PepsiCo, Inc. (“PepsiCo”), the Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds (“Central States”), and Roy E. Crowe, Sr. Documen...
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MOTION FOR ALLOWANCE AND PAYMENT OF ADMINISTRATIVE CLAIM MEMORANDUM OF DECISION The foregoing motion was brought regularly before this court by Judith Ann Wilson (“Wilson”), trustee of the Dick Wilson 1988 Trust which is the successor in interest to the Topland Company, Inc. (hereinafter “Topland”), debtor Far West Corporation’s (“Debtor”) landlord. Wilson seeks an order requiring th...
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OPINION Debtor, an automobile dealer, moved to assume and assign a Porsche franchise. California state law, applicable via 11 U.S.C. § 365(c)(1), provides that such a franchise may be assigned only with the consent of the manufacturer, but that such consent shall not unreasonably be withheld. The principal question raised in this proceeding is the legal standard upon which the reasonableness of...
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DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Before the Court are two heatedly contested insurance claims of a Chapter 7 trustee arising out of separate alleged burglaries of the premises upon which the Debtor formerly conducted its retail consumer electronic business. ' The trustee commenced a lawsuit and has moved for partial summary judgment pur...
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MEMORANDUM AND ORDER I. 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)(0), which the Court may hear and determine. II. FACTUAL BACKGROUND This adversary ...
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ORDER On July 18, 1984, Herbert E. Russell filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. William R. Gibson, Esq., (Gibson) was appointed trustee on March 19, 1985, and Thomas S. Street-man, Esq., (Streetman) was appointed co-trustee on August 4, 1989. Gibson resigned as trustee as of February 20, 1990, and Streetman was auth...
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ORDER In this Chapter 7 case, the Trustee has filed Objections to Debtor’s claim of exemptions in an Individual Retirement Account (IRA). The matter has been submitted to the Court on an agreed statement of facts, with stipulated exhibits. Briefs have been filed by each party and the matter is now ready for decision. The agreed facts are as follows: 1. Debtor Richard Locke worke...
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MEMORANDUM OPINION AND ORDER BACKGROUND This matter comes before the Court on the “Motion for Reconsideration of Order of Court Denying Compensation to Attorneys for Debtor In Possession” filed by Gorman, Sheatsley & Hutchison, L.C. (“G.S. & H.”). In the Motion, G.S. & H. asks this Court to reconsider its Order of August 3, 1990, where the Court approved application of the $2,500.00 ...
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MEMORANDUM OPINION This adversary proceeding arose by Complaint filed June 22, 1990, by which the plaintiff, Citicorp Credit Services, Inc., seeks a determination that the Debtors’ outstanding indebtedness to it arising by reason of credit card charges is nondis-chargeable pursuant to section 523(a)(2)(A) of the Bankruptcy Code. The allegations are generally denied. The case came on for trial...
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MEMORANDUM OPINION ON MOTION FOR DISMISSAL Introduction James and Sharon Fuhrman (“Debtors”) first filed for relief under Chapter 12 of the Bankruptcy Code on November 12, 1987. The Debtors submitted two different plans of reorganization during the pendency of that case and each was denied confirmation. The case was dismissed on May 16, 1988 for failure to confirm a Chapter 12 plan. On June...
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ORDER On December 18, 1989, Gregory L. and Debra Kay Owens (debtors) filed a voluntary petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. On January 2,1990, the debtors filed a proposed plan of reorganization, and on January 16, 1990, General Motors Acceptance Corporation (GMAC) filed an objection to the proposed plan. A confirmation hearing was h...
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MEMORANDUM OPINION Now before the Court is an adversary proceeding, wherein the debtors/Plaintiffs, William and Mattie Oldfield (“Oldfields”), have requested that this Court declare their income tax debts for 1980, 1981 and 1983 to be discharged in their Chapter 7 case. The Defendant, Internal Revenue Service (“IRS”), contends that the Plaintiffs’ tax debts for the 1980, 1981 and 1983 tax...
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MEMORANDUM OPINION I. INTRODUCTION The cases before the Court involve objections to the confirmation of or the payment of claims under these Debtors’ Chapter 13 plans raised by Community Federal Savings and Loan Association (“Community Federal”). Because similar factual and legal issues are involved in these cases, this Memorandum serves to procedurally con *518 solidate...
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MEMORANDUM AND ORDER This matter is before the court on remand from the District Court with instruction to reconsider its bench decision of April 25, 1990. This court denied confirmation of the Debtors’ Chapter 13 plan holding that the plan, filed in a case converted from a Chapter 7, was in bad faith. The District Court, expressed no opinion on whether or not bad faith existed, inst...
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ORDER The present adversary proceeding was initiated by Andrew MacLean Stoll (hereinafter referred to as “Debtor”) on November 2, 1989 to determine the dischargeability of his tax debts for the years 1979 through 1985 totalling $48,887.59. Pursuant to a consent order filed on July 19, 1990, the Internal Revenue Service (hereinafter referred to as the “IRS”) and Debtor have agreed to resol...
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MEMORANDUM I. Introduction Stephen S. Gray, the Trustee of Leading Edge Products, Inc. and its subsidiaries, filed an objection to proofs of claim filed by Softvision, Inc. (“Softvision”). The filing of that objection precipitated the filing of a number of other pleadings, which, in turn, prompted the Court to adopt a procedure whereby the amount of Softvision’s claim and the issue o...
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MEMORANDUM ORDER REGARDING WHETHER ENTITIES OTHER THAN “INDIVIDUALS” ARE ALSO ENTITLED TO RELIEF UNDER § 362(h) OF THE BANKRUPTCY CODE Query, are entities 1 other than “individuals” also entitled to protection under § 362(h) of the Bankruptcy Code. Although subsection (h) of § 362 is on its face clearly limited to “individuals”, case law under § 362(h) has construed the word “i...
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MEMORANDUM This case is presently before the court upon the motion of Terry Coleman, former general manager of the debtors in these consolidated bankruptcy cases, to quash a subpoena duces tecum issued at the request of Third National Bank (Third National). Coleman seeks to quash the subpoena by invoking his fifth amendment privilege against self-incrimination. Having considered the argum...
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ORDER ON REAFFIRMATION AGREEMENTS On August 7, 1990, debtors filed their voluntary petition under Chapter 7 of the Bankruptcy Code. 1 Debtors were, and are, represented by counsel. Debtors scheduled as secured creditors: The holder of a claim for $112.06 secured by jewelry; the holder of a claim in the amount of $46,000 secured by a mortgage on debtors’ homestead; and Tinker Credit Union (“Ti...
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MEMORANDUM OPINION I. Background of FDIC’s Motion For Summary Judgment On October 28, 1987, the Trustee for the bankruptcy estate of Pernie Bailey Drilling Company (hereinafter “Pernie Bailey” or “Debtor”) filed a complaint commencing this adversary proceeding against the First RepublicBank Fannin, N.A. (hereinafter “First RepublicBank” or “the Bank”). Count I sets forth a cl...
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MEMORANDUM OF DECISION On August 2, 1990, Robert G. Cypher and The Cypher Company (collectively “Cyphers”) filed their MOTION OF ROBERT G. CYPHER AND THE CYPHER COMPANY FOR DISQUALIFICATION OF DEBTOR’S COUNSEL. Thereafter, on Septem *479 ber 4, 1990, Nephi Rubber Products Corp. (“Nephi”), the debtor herein, filed its VERIFIED OBJECTION AND PRELIMINARY RESPONSE OF NEPHI RUBBER...
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MEMORANDUM INTRODUCTION The issue before the Court is whether Bobby Dee Enterprises, Inc. and Duggan’s Liquor Store, Inc. (collectively, “Bobby Dee”) have a perfected security interest in a liquor license that is an asset of the Debtor’s estate. Bobby Dee filed a motion for relief from stay seeking permission from this Court to exercise its state law rights of foreclosure with respect to the liqu...
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MEMORANDUM AND SECOND AMENDED ORDER FOR PRE-TRIAL CONFERENCE, LIMITING TIME FOR COMPLETION OF DISCOVERY AND SCHEDULING JURY TRIAL1 After telephone status conference with attorneys for all parties on October 27, 1989, this Court entered an Order for Pretrial Conference, Limiting Time for Completion of Discovery and Scheduling Jury Trial. I had advised plaintiffs during the status conference that de...
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MEMORANDUM OF DECISION This matter came before the Court on a Motion for Relief from the Automatic Stay filed by Central Bank of the South on July 2, 1990. A preliminary hearing was held on that motion July 17, 1990. Following that hearing, this Court issued an order July 17, 1990 which allowed the Bank a fixed payment of $217.27 per month on current mortgage payments (long-term debt unde...
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MEMORANDUM OPINION AND ORDER On May 8, 1989, the Duplechains, confirmed Chapter 12 Debtors, filed a complaint to determine the validity of the security interest of Guaranty Bank of Mam-ou (the Bank) in farm equipment. Their Chapter 12 plan was confirmed on October 22, 1987. The equipment involved in the complaint includes two White tractors and a Massey-Ferguson combine sold in December, 1988 t...
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MEMORANDUM OF DECISION This matter came before the Court on Creditor Bowest Corporation’s Objection to *110Confirmation and Motion for Relief From Automatic Stay,' filed by the Creditor on June 1, 1990. After a review of the record in the case in the context of the applicable law, Creditor’s Objection to Confirmation is due to be OVERRULED and Creditor’s Motion for Relief from Stay is due to be D...
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DECISION ON MOTION TO DISMISS DISCHARGEABILITY COMPLAINT AS UNTIMELY FILED The Debtor moves pursuant to Fed.R. Bankr.P. 7012(b) (“B.R.”) 1 to dismiss the complaint of Citizens First National Bank of New Jersey, which seeks to except from discharge a $246,655.54 claim under Bankruptcy Code § 523(a)(2)(A), (4) and (6), 11 U.S.C. § 523(a)(2)(A), (4) and (6), on the ground that it ...
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ORDER DENYING CONFIRMATION OF AMENDED CHAPTER 12 PLAN Lupfer Brothers is a Missouri General Partnership which filed a Chapter 12 peti *1004 tion on or about May 1, 1990. The partners are two brothers, Frank and Billy Lupfer, and their wives. The debtor’s Chapter 12 Amended Plan proposes to pay secured creditors the value of their collateral over an extended period of time, with interest, and ...
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MEMORANDUM OPINION This cause is before the Court on the motion of the Debtor-in-Possession (“DIP”) to compromise employee and retiree claims upon rejection of various collective bargaining agreements and for the modification of retiree benefits. Also pending before this Court are the motion of the DIP to reject employee contracts, the motion of the DIP asking this Court to reconsider its...
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OPINION Before JONES, ASHLAND and VOLINN, Bankruptcy Judges. I. OVERVIEW In response to a motion for abandonment, the bankruptcy court held that Raymond Carey (“Appellant Carey”), the Chapter 7 Trustee for Desmond Lee Pauline (“Debtor”), had sixty (60) days to find a party willing to buy the Debtor’s home at a price sufficient to satisfy all of the liens on the home plus th...
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OPINION The debtor sought to avoid judgment-liens on her residence under 11 U.S.C. § 522(f). The judgment creditor contended that California law did not provide for a homestead exemption because the debtor had contracted for the voluntary sale of her residence and therefore the court should not avoid the liens. We affirm the bankruptcy court’s order avoiding the liens. PACTS The debtor/appe...
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OPINION The State of Oregon, Department of Veterans’ Affairs (“DVA”) appeals a bankruptcy court order reducing its lien on debtor’s property to the value of the property pursuant to 11 U.S.C. § 506. We reverse. FACTS This adversary proceeding was initiated when Chapter 7 debtor, Donald G. Lange, filed a complaint pursuant to 11 U.S.C. § 506(d) to avoid the undersecured portion o...
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MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW PROCEDURAL POSTURE This case comes before the Court on the U.S. Trustee's objection to the fees of the Debtors’ attorney. The Court notes that neither the Debtors, the creditors, nor the panel trustee objected to the fees of the Debtors’ attorney. The question presented is whether the fees of the Debtors’ attorney are reasonable...
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MEMORANDUM OPINION Upon the submission of joint stipulations of fact, lists of authorities and a request for a dispositive decision thereon, this Court will rule in favor of the Plaintiff, Alarice Ann Johnson, and discharge her student loan debt for the reasons of undue hardship as hereinafter set forth. STATEMENT OF FACTS The Defendant is United Student Aid Funds, Inc., a Delaware corporat...
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THIS CAUSE came on for consideration upon the Defendant, Louis Sullivan, M.D.’s Motion of the Secretary of Health and Human Services (Secretary) for Summary Judgment; Plaintiff, Visiting Nurse Association of Tampa Bay, Inc.’s (Debtor) Cross Motion for Summary Judgment; and Debt- or’s Motion to Assume Executory Contract, in Part, and to Reject Executory Contract, in Part. The Court reviewed the ...
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*919 MEMORANDUM OPINION AND ORDER REGARDING MOTION FOR SUMMARY JUDGMENT FILED IN OPPOSITION TO TRUSTEE’S MOTION FOR DETERMINATION OF TAX LIABILITY This cause is before the Court on a Motion for Summary Judgment filed by the City of McMinnville (City) and County of Warren (County), Tennessee in opposition to the Trustee’s Motion For Determination of Tax Liability. At issue is whether, as a mat...
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MEMORANDUM-OPINION This Chapter 13 case came before the Court on BancBoston Mortgage Corpora*860tion’s (“BancBoston”) objection to confirmation of the debtors’ proposed Chapter 13 plan. In essence, BancBoston contends that the debtors’ plan may not cure a home mortgage arrearage when they have previously received a Chapter 7 discharge, citing In re Binford, 53 B.R. 307 (Bankr., W.D.Ky.1985). In re...
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This matter came before the Court for evidentiary hearing on September 6, 1990 on Debtor’s continuing objection to Claim No. 8 for the Department of the Treasury for the Internal Revenue Service of the United States of America (hereinafter “IRS”). Steven L. Ballantine appeared for the Debtors. Tracy A. Anagnost appeared for the IRS. This is a core proceeding under 28 U.S.C. §§ 1334 and 157(a), ...
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DECISION VACATING APRIL 10, 1990 DECISION ON DETERMINATION OF RENTS AND ESCROW MONIES A motion for reconsideration (the “Fee Reconsideration Motion”) of this Court’s Order, dated August 7, 1990, granting counsel for Vienna Park Properties (the “Debtor”) a first interim award of compensation and reimbursement of expenses (the “Fee Award”) was made by Trustbank Savings F.S.B. (“Trustbank”) ...
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OPINION Background South Aiken, Ltd. (“Debtor”) filed a petition under Chapter 11 of the Bankruptcy Code on November 6, 1989. Presently before the court are two competing plans of reorganization, one by the Debtor and one by John Alden Life Insurance Company (“Alden”). Alden is the first mortgage holder on the Debtor’s sole asset, an office building known as Shadyside Place (the “Premises”)...
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DECISION AFTER TRIAL TO DETERMINE DISCHARGEABILITY OF MATRIMONIAL OBLIGATION The debtor’s ex-wife seeks to have $1,000,000 in payments due her pursuant to a Separation Agreement declared nondis-chargeable as support pursuant to 11 U.S.C. § 523(a)(5). We find nondischargeable only so much of the unpaid balance of that portion of the $1,000,000 marital obligation as may be necessary to prov...
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MEMORANDUM OF DECISION FACTS On May 7, 1984, Chalet Gourmet Sunset (“CGS”), Perinos Restaurant Inc. (“PRW”), Perinos Restaurant Downtown (“PRD”) and California Wholesale Electric Co. (“CWE”) filed separate petitions under Chapter 11 of the Bankruptcy Code. The cases were later consolidated for administrative efficiency. Relevant to this discussion are the sales of liquor licenses own...
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ORDER RE: ALLOWANCE OF ATTORNEY FEES On November 9, 1989, Debtor, James Contracting Group, Inc., filed a voluntary proceeding under Chapter 11 of the Bankruptcy Code. Thereafter, Attorney for the Debtor, Harold A. Corzin (hereinafter “Cor-zin”), moved on behalf of the debtor-in-possession to employ Corzin as attorney in these proceedings. Notice of this motion was given to the U.S. Truste...
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DECISION ON MOTION OF FIDELITY BANK, NATIONAL ASSOCIATION, FOR RELIEF FROM AUTOMATIC STAY THIS CASE came on for evidentiary hearing on October 24, 1990, of the motion of Fidelity Bank, National Association, for relief from the automatic stay (Document No. 112). The motion requests this court to lift the stay for cause, as provided by Section 362(d)(1) of the Bankruptcy Code, because the d...
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MEMORANDUM DECISION GRANTING MOTION TO TRANSFER VENUE On March 2 of this year at 4:47 p.m., this case was commenced when Suzanne Frame a/k/a Suzanne de Lyon (the “Debtor”) filed a voluntary Chapter 11 petition. Minutes thereafter, at 4:54 p.m., a voluntary Chapter 11 petition was filed by Suzanne de Lyon, Inc. a/k/a SDL, Inc. a/k/a Suzanne de Lyon, Inc. U.S.A. (“SDL” or the “Corporate Debtor”),...
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MEMORANDUM OPINION Background This matter is before us on remand from the United States District Court with instructions to issue a Memorandum Opinion providing specific findings of fact regarding the liabilities of Gary A. Davis (“Debt- or”) arising from the Willy’s Car Wash partnership. The issue in this preference action is whether the Debtor was insolvent on August 24, 1...
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DECISION AND ORDER Heard on October 17, 1990 on the objection of Harold Chorney, the former principal of the debtor corporation, to the Trustee’s Motion for a Rule 2004 Examination of John Boyajian, Esq., the attorney of record for the debtor corporation. Chorney objects to the Trustee’s proposed examination of Boyajian on the ground that, in addition to serving as counsel for the corpora...
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DECISION AND ORDER Heard on May 9, 1990 on the Complaint of Gene L. Schaefer (the debtor’s son-in-law), who requests that the claim against his father-in-law, A1 Winden, be declared nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A) and/or 523(a)(4). The debt in question, in the amount of $6,122.00 1 , is based on a judgment obtained by Schaefer in the Larimer County D...
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11 USC § 541 DETERMINATION 1 Bank seeks a determination whether post-petition rent paid to it from Debtors’ *768 tenant under a lease assigned to Bank pre-petition and after a default on a commercial mortgage is not property of Debtors’ Chapter 13 bankruptcy estate under 11 U.S.C. § 541(a). 2 An issue of first impression in this District, we hold Vermont’s ...
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DECISION The Debtors filed a joint petition for relief under Chapter 7 of the Bankruptcy Code on December 27, 1989. On Schedule B-4 of their Petition the Debtors claimed as exempt, pursuant to Section 282 of the New York Debtor and Creditor Law, an Individual Retirement Account (“IRA”) in the amount of $4,400.00. The Debtors also claimed as exempt an employee pension plan provided by Mast...
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MEMORANDUM OF DECISION ON PROPERTY OF ESTATE Trustee and Gabelharts seek a determination *756 1 that a Declaration of Trust executed by James Gabelhart, trustee, is invalid and its property declared part of Gabel-harts’ personal bankruptcy estate. Trustee and Gabelharts also seek to enforce a discharge of a mortgage on the property by extending a discharge of an assign...
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MEMORANDUM OPINION This matter is before the court on the defendant’s motion to dismiss and the plaintiff’s motion for summary judgment. The facts are not disputed and they are set out in the Complaint. In addition, the court takes judicial notice of the method of operations within the clerk’s office. The defendant moved to dismiss the Complaint because it was not the proper subject matter for an...
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MEMORANDUM DECISION AND ORDER RE: MOTION FOR RECONSIDERATION On May 21, 1990, C.U. Cars, Inc. filed a Motion for Reconsideration of Memorandum Decision and Order Entered on May 10, 1990 Granting Gillespie and Ottersen’s Post-Petition Interest and Attorney’s Fees (“Motion for Reconsideration”). The Trustee filed a Joinder in Motion for Reeonsider-ation on May 22, 1990, and Robert Gillespie, Jr., La...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: OBJECTION TO CLAIMS Edward J. Stanley (“Trustee”), Successor Trustee, filed an Objection to Allowance of Claims objecting to certain Proofs of Claim filed by James Watson Byrer (“Mr. Byrer”) and Julie Byrer (“Mrs. Byrer”) in the instant case. The Court heard the testimony of Mrs. Byrer and the arguments of counsel at hearings on the objection he...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon the Debtors’ Motion to Confirm their Chapter 13 Plan and the objections thereto filed by the Standing Chapter 13 Trustee and the Federal Deposit Insurance Corporation as Liquidator of Dominion National Bank (“FDIC”). The Debtors in their Plan propose that the Court determine that the fair market value of their residence in $...
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MEMORANDUM OF DECISION DENYING MOTION TO DISMISS TRUSTEE’S AMENDED COMPLAINT On November 6, 1989, Trustee filed an Amended Complaint 1 for damages against Defendants on three counts: Count 1, “Bad Faith” under 11 U.S.C. § 303(i); 2 Count II, “Equitable Subordination” under 11 U.S.C. § 510(c); 3 and, Count III, violation of the “Automatic Stay” under 1...
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MEMORANDUM OPINION AND ORDER THIS MATTER comes before the Court upon a PRO SE MOTION TO DISMISS COMPLAINT filed by the Defendants. A hearing was held on October 31, 1990, and following are the findings of the Court. *576 The bar date for filing complaints pursuant to 11 U.S.C. § 523 or § 727 was August 22, 1990. On August 17, 1990 the Plaintiff attempted to file a complaint with the Clerk o...
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DECISION AND ORDER DENYING TRUSTEE’S OBJECTION TO CLAIMS OF MILLER-VALENTINE GROUP FOR ADMINISTRATIVE CLAIM Dated at Dayton, Ohio this 10th day of October, 1990. This matter is before the court on the trustee’s objection to Miller — Valentine Group's administrative claim of $4,608 (Claim No. 32). This contested matter arises in this bankruptcy case which was referred to this court by...
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AMENDED ORDER GRANTING MOTION FOR SUMMARY JUDGMENT On September 6, 1990, a hearing was held on defendants’ Motions for Summary Judgment directed to all three counts of plaintiffs Second Amended Petition. Appearances were entered by Steven W. Garrett, attorney for plaintiff corporation Charles C. MacLean, III, Architect, Ltd.; Gary W. Allman, attorney for defendants Branson Mall, Inc....
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MEMORANDUM OPINION This matter is before the Court upon the motion of a Chapter 7 corporate debtor, *489 F.A. Dellastatious, Inc. (the “Debtor”), seeking an order directing that ail amounts distributed out of its estate to the Internal Revenue Service (the “IRS”) be allocated first to the Debtor’s trust fund tax liability. The issues raised here are (1) whether a Chapter 7 co...
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MEMORANDUM This case is before the court upon the plaintiffs motion for an order allowing the plaintiff to register the judgment entered in this case in any judicial district pursuant to 28 U.S.C.A. § 1963. The defendant opposes the motion. I. A judgment was entered against the defendant in this ease on February 10, 1989, in the amount of $33,342.57. Although the judgment is presently on appeal i...
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*19 MEMORANDUM OPINION In reality this is a single debtor, single creditor Chapter 13 reorganization. Debt- or purchased his 7,000 square foot home from creditor’s mother in 1983 for $248,-000.00. Debtor now owes $114,000.00 and creditor admits that debtor has equity in the property. In 1987 debtor filed his first Chapter 13. It was marked by hostilities and battles between debtor and credito...
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DECISION In this adversary proceeding, Steven Denlinger (“Denlinger” or the “Defendant”) seeks, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, incorporated by Rule 7012(b) of the Federal Rules of Bankruptcy Procedure, dismissal of the first amended complaint (the “Amended Complaint”) of Wedtech Corporation, the debtor and debtor in possession herein (“Wedtech” or the “Pla...
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MEMORANDUM INTRODUCTION The matter before the Court is the Trustee's objection to the proof of claim filed by the law firm of Friedman & Atherton on or around June 9, 1989. The Trustee has stipulated that Friedman & Atherton holds a claim in the amount of $158,629.20, but has denied that the firm holds a lien or security interest in the Debtors’ property for the repayment of the clai...
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CONSOLIDATED ADVERSARY PROCEEDINGS FINDINGS AND CONCLUSIONS AND ORDERS At Saint Louis, in this District, this 15th day of November, 1990. The expedited hearing upon the Plaintiffs’ motion for a preliminary injunction was called on October 11, 1990. Counsel for the Debtors appeared and presented oral argument upon the record in support of the motion. Counsel for the Government/Defendants appeared ...
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MEMORANDUM OPINION ON LANDLORD’S MOTION FOR IMMEDIATE POSSESSION OF PREMISES The issue in this case is whether a lessor is entitled to immediate possession of nonresidential real estate from a debtor in possession after the 60 day time period under § 365(d)(4) 1 has expired without an effective assumption of the lease by the debtor in possession. On November 9, 1989, Chris Kay Foods East, I...
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MEMORANDUM INTRODUCTION On April 23, 1990, Amnon Inbar (“In-bar”) filed an involuntary partner’s petition against the above-named individuals. In his petition, Inbar alleged that he is a gen*133eral partner of a partnership whose other general partners are Stephen and Joan Carp. In response to the involuntary petition, the Carps filed a motion to dismiss. The Carps assert that a partnership does ...
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MEMORANDUM OPINION In this chapter 7 case, J. Upadhyay filed a complaint to determine dischargeability of debt and to deny the debtor's discharge. Trial on the complaint was held on October 30, 1990, and at the conclusion of the trial this court made a bench ruling in favor of the debtor on all counts. An order reflecting the court’s bench ruling was entered on November 7, 1990. The sole rema...
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MEMORANDUM OPINION The issues addressed by this opinion are twofold. First, should the Debtor-Plaintiff be granted a preliminary injunction which prohibits the Defendant from continuing a pending legal action against the Debtor’s officers and directors? Second, should the Debtor be authorized to reject an alleged executory franchise agreement with the Defendant and, if so, is a covenant n...
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MEMORANDUM OPINION These two adversary proceedings arise from dischargeability complaints under 11 U.S.C. § 523(a)(2)(B) and were consolidated *301 for trial held on June 18 and 19, 1990. The plaintiffs, who are related business entities and represented by the same counsel, base their cases upon a single financial statement of the debtor. At the conclusion of the plainti...
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MEMORANDUM OPINION The court has considered the Motion to Dismiss filed by Banque de Paris et des Pays-Bas (Suisse) S.A. and the objection filed by ITOC Petroleum Corporation and Robbye R. Waldron, the Trustee of ITOC’s bankruptcy case, and the evidence adduced at hearing. The Motion to Dismiss is granted. The following constitute Findings of Fact and Conclusions of Law pursuant to Federal Rules ...
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MEMORANDUM OF DECISION This matter having come before the Court on the debtor’s request for entry of a preliminary injunction against continued litigation of three consolidated civil actions pending in the United States District Court for the District of Arizona, 1 the request having been prosecuted on the basis of the parties’ papers, exhibits, affidavits and declarations, a hearing having b...
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MEMORANDUM OPINION AND ORDER ON TRUSTEE’S AMENDED MOTION TO AMEND PETITIONS AND SCHEDULES This contested matter arises from the amended motion 1 filed by Jack F. Marlow, Chapter 11 Trustee, which motion seeks to amend the bankruptcy petition in order to identify the debtor as “Julien J. Hohenberg d/b/a The Julien Company.” The Court has received memoranda and heard legal argume...
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MEMORANDUM OF OPINION AND ORDER I. This matter is before the Court upon the Trustee’s motion to compromise separate disputed claims against Arby’s, Inc. and Cox Cable, and to abandon a claim against Ponderosa and Prudential Insurance Company. Upon a duly scheduled hearing, the Court has considered the pleadings, arguments of counsel, and the record, generally, to arrive at the follow...
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MEMORANDUM OF DECISION I. ISSUE At issue in this core proceeding is the application of the “ordinary course of business” defense to an action seeking to recover an otherwise preferential transfer under the provisions of Bankruptcy Code § 547. The following background relies upon a stipulation of facts filed by the parties and a brief hearing which concluded on October 4, 1990. ...
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I. The matter before the Court is an application of Arter & Hadden (Applicant) for compensation and reimbursement of expenses incurred while rendering legal services to North Coast Industries, Inc. (NCI), a secured creditor of CVC, Inc. (Debtor). Upon a review of the application, arguments of counsel, and the record, generally, the application is hereby disallowed. II. The Debtor...
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MEMORANDUM OPINION Came on for hearing the Motion to Dismiss filed by Fusion Holding Corporation, and after considering the evidence, pleadings, memoranda and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith granting the Motion to Dismiss. To the extent any findings of fact herein are constru...
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*875 MEMORANDUM OF OPINION AND ORDER I. The matter before the Court is the motion of Ciuni & Panichi, Inc. (Ciuni) for application of interim compensation for services rendered by them as accountants for the Debtor, CVC, Inc. (CVC), pursuant to 11 U.S.C. § 328. II. Ciuni began working for CVC, pursuant to an appointment granted by this Court on July 24, 1989 and is...
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MEMORANDUM OPINION Came on for trial the plaintiff’s Complaint to Set Aside Fraudulent Transfers Pursuant to Texas Fraudulent Conveyance Act, Bus & C. Section 24.03 and 11 U.S.C. § 544(b). After considering the evidence, pleadings, memoranda and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewit...
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MEMORANDUM OPINION Came on for hearing the Motion for Partial Summary Judgment filed by Texas Trust Savings Bank, a successor in interest to Peoples Savings and Loan Association, and after considering the evidence, pleadings, memoranda and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith denying the ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEBTORS MOTION TO DISMISS Movant Debtors seek to dismiss each of their Bankruptcy actions pursuant to 11 U.S.C. § 1112(b) of the Bankruptcy Code. Movants’ motions are opposed by a creditor, Gertner, Aron & Ledet Investments (“GALI”). After considering the pleadings, evidence, memoranda, and arguments of counsel the court makes the following findings of f...
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ORDER GRANTING DEBTOR’S MOTION FOR STAY PENDING APPEAL This is a ruling on a motion for stay pending appeal. The debtor, Francis Queen, has requested a stay pending appeal of my Order entered September 19, 1990 granting relief from the automatic stay to the Nashua Trust Company. This case presents a novel question with regard to the “likelihood of success on the merits” factor that is normally app...
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MEMORANDUM OPINION Came on for hearing on February 1, 1990, Debtors' Motion to Avoid Judicial Lien, and after considering the testimony, pleadings, memoranda and arguments of counsel, this court makes the following finding of fact and conclusions of law and enters a separate judgement in conjunction herewith granting the motion to avoid lien. To the extent any findings of fact herein are constr...
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MEMORANDUM OPINION Came on for hearing the Motion for Valuation of Security of Bank One filed by the Debtor. After considering the pleadings, evidence, memoranda, and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in accordance herewith denying Debtor’s Motion. To the extent any Findings of Fact herein are construed to ...
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DECISION Ames Department Stores, Inc. (“Ames”) seeks an order pursuant to Sections 365(b) and (f) of the Bankruptcy Code, 11 U.S.C. § 365(b) and (f) (1986) authorizing a debtor subsidiary, Zayre Illinois (“Zayre”) (collectively, the “Debtors”), to assume a lease of non-residential real property located in Westmont, Illinois (the “Lease”), and assign it to Schottenstein Stores Corporation ...
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MEMORANDUM OPINION Debtor, a Missouri corporation, filed a voluntary petition under Chapter 11 on July 28, 1988. Notices were duly sent to all creditors, including the defendant Jay Wolfe Chevrolet, Inc. Debtor was a small town Chevrolet-Buick-Oldsmobile dealer. Defendant was and is a large Chevrolet dealer, operating in the metropolitan Kansas City area. Debtor frequently bought parts fr...
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DECISION OF MOTION OF THE DEBTOR IN POSSESSION TO SELL PROPERTY PURSUANT TO 11 U.S.C. § 363(b) AND (f). Engineering Products Co., Inc., a Chapter 11 debtor in possession (“EPC”), with the approval of the Official Committee of Unsecured Creditors, wants to sell substantially all of its assets pursuant to 11 U.S.C. § 363(b)(1) and (f)(3). 1 No formal disclosure statement or propo...
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ORDER Before the court is the adversary complaint of the debtors seeking damages for violation of the automatic stay pursuant to 11 U.S.C. § 362(h). 1 FACTS The debtors filed for relief under Chapter 13 of the Bankruptcy Code on April 7, 1989 and R. Geoffrey Levy was appointed Trustee. NCNB South Carolina was listed as a secured creditor on Schedule A-2 of the debtors’ s...
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*428 MEMORANDUM OPINION AND ORDER The matter before the Court is the Plaintiff, Suzanne Seymour’s complaint seeking a determination of the dischargability of a particular debt. The debt in question arose out of a general partnership known as Firs-tart. The debtor-Defendant, Richard T. Yates, was a general partner of that partnership, and accordingly is personally liable for partnership debts....
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ORDER This matter came before me on the Objections to Confirmation filed by Ford Motor Credit Company (“FMCC”). FMCC filed its Objections to Confirmation on June 27, 1989, (“Objections) to the Debtor’s Chapter 13 Plan dated June 1, 1989 (“Plan”). At the hearing the Court heard arguments from the attorneys for the Debtor and FMCC and from the standing Chapter 13 Trustee. The Court makes th...
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ORDER This matter came before the court for trial on April 26, 1990, on the Plaintiff’s Complaint to avoid a preference, and the defendant’s answer which raised the “earmarking” doctrine, contending that the transfer was not from the debtor, and therefore not a preference. Upon the evidence presented and the briefs and arguments of counsel, the court finds as follows: FACTUAL FINDINGS 1. ...
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ORDER On July 19, 1989, Charles R. Winters (“Winters”) filed a proof of claim seeking $5,488.40 as an administrative expense pursuant to 11 U.S.C. § 503(a) 1 The Debtor objected to Winters’ claim for administrative expenses and on November 16, 1989, the Court conducted a hearing on Winters’ claim. For the reasons more fully discussed below, the Court concludes that Winters is n...
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ORDER Before the court is confirmation of the debtor’s proposed Chapter 13 plan. Objections to the plan were filed by Linda Zerbst and Debbie Smith, alleging that the debt- or’s plan was not filed in good faith in violation of 11 U.S.C. § 1325(a)(3) 1 . FINDINGS OF FACT Linda Zerbst and Debbie Smith are the holders of separate unsecured claims against the debtor for h...
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ORDER Before the court is the debtor’s motion to use cash collateral pursuant to 11 U.S.C. § 363. 1 First Factors Corporation (“First Factors” or “the Bank”) objects and contends that the financing arrangement between First Factors and the debtor under their “Factoring Contract and Security Agreement” was a factoring agreement (“sale”) as to specific accounts or invoices rather...
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MEMORANDUM ORDER GRANTING TRUSTEE’S MOTION FOR RELIEF FROM ORDER PROVIDING ADEQUATE PROTECTION PAYMENTS; GRANTING TRUSTEE’S MOTION TO STAY JUDGMENT; AND DENYING QUAKER STATE’S MOTION FOR STAY RELIEF The Trustee in this case is administering the property of the Debtor, Mid-Atlantic *209 Fuels, Inc. [Mid-Atlantic], subject to various orders and agreements, including a lease/pur...
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MEMORANDUM OPINION ON DEFENDANTS’ MOTIONS TO DISMISS Defendants Kathryn Kelly (“Kelly”), JGC Trust # 2 (“JGC Trust”) and Thomas J. Connelly (“Connelly”) (collectively, the “Defendants”) have moved to dismiss the adversary complaints brought against them by plaintiff Winston & Strawn (“W & S”) (the “Adversary Complaints”) (the “Motions”). The Adversary Complaints seek to avoid certain tran...
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ORDER DENYING DEBTOR’S MOTION FOR REHEARING ON ORDER GRANTING RELIEF FROM STAY THIS CAUSE came before the Court on October 5, 1990, upon William J. Makarew-icz’s (the “debtor”) Motion For Rehearing of an order entered by this Court which granted relief from the automatic stay in favor of Alan and Carol Lee Jacoby (the “creditors”) pursuant to 11 U.S.C. § 362(d), and the Court having revie...
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OPINION Before us in the three above-named related cases is a motion of SECURITY PACIFIC NATIONAL BANK (“SPNB”), easily the Debtor’s largest secured creditor and also allegedly an unsecured creditor, requesting this court to direct the United States Trustee (“UST”) to appoint a new and separate Creditors’ Committee in the case of ORFA CORPORATION OF AMERICA (DEL.) (“ORFADEL”), in addition to th...
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ORDER Before the court is an adversary proceeding brought by George Willie Leverette and Wendy Brown Leverette (“the debtors”) against NCNB South Carolina seeking the turnover of debtors’ repossessed automobile from the defendant pursuant to 11 U.S.C. § 542(a) 1 , 2 . The debtors also seek a finding of contempt and an award of attorney fees. NCNB South Carolina asserts that the automobile...
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*411 ORDER Before the court is the motion of the Charter Club Certificate Holders of the Seabrook Island Ocean Club (“the Certificate Holders”) to set a time for the assumption or rejection of executory contracts pursuant to 11 U.S.C. § 365(d)(2). 1 ’ 2 The debtor and North Carolina National Bank of South' Carolina filed objections on the grounds that the Ce...
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MEMORANDUM OPINION Now before the Court is an adversary proceeding, wherein the Plaintiff, Worthen Bank & Trust Company (“Worthen”), challenged the dischargeability of the debt owed to it by debtor, James S. Smith (“Smith”). The matter came before this Court for hearing on September 13, 1990. Worthen appeared by counsel, Ken Cook, Esq. Debtor appeared in person and by counsel, Basil Hicks...
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MEMORANDUM OF OPINION ON MECHANIC’S LIEN Donald Leroy Burnett and Betty Louise Burnett (Burnetts) filed a motion to avoid a lien held by the Farmers Home Administration (FmHA). The dispute is whether a Development Plan which was expressly incorporated into a deed of trust created a valid contract for a mechanic’s lien on the Burnett’s homestead. 2 Finding that the lien is valid...
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ORDER This case is before the Court on Debtors’ Motion to Set Aside Judicial Lien. (Doc. 7) The pleadings include: The Provident Bank’s Memorandum in Opposition to Motion to Set Aside Judicial Lien (Doc. 6); Supplemental Memorandum of Creditor in Opposition to Motion to Set Aside Judicial Lien (Doc. 11); Creditor Provident Bank’s Submission of Evidence of Value and Request for Dismissal o...
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ORDER DENYING MOTION FOR AUTHORITY TO MAKE PARTIAL PAYMENT ON SECURED DEBT The matter before the Court is a Motion filed by the debtor-in-possession seeking to use $8,500.00 from cash collateral funds pledged to Premier Bank, N.A. (“Premier”). The debtor does not necessarily concede that this payment would be outside the already Court approved Agreed Cash Collateral Order under which it is now ope...
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MEMORANDUM OPINION AND ORDER DENYING TRUSTEE’S OBJECTION TO EXEMPTION This matter comes on before the Court pursuant to the April 12, 1990 hearing on the Trustee’s Objection to Debtor’s Exemption of IRA Plan. The debtor, Georgia Ida Galvin, appeared by and through her attorney Jan A. Way. The trustee, James S. Willis appeared pro se. FINDINGS OF FACT The facts herein are undispu...
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Before the Court is Adversary No. 89-1067, by which the Plaintiff, Wallingford’s, Inc. (“Wallingford’s”) seeks to establish that its claims against the Debtor/Defendant, Melvin Leslie Waning (“Waning”) are excepted from discharge. For the reasons set forth below, the Court today enters judgment for the Defendant. BACKGROUND Waning filed a Chapter 7 voluntary petition in bankruptcy on ...
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MEMORANDUM Hearing was held July 31, 1990, regarding Trustee’s Objection To Property Claimed as Exempt (Filing No. 8). Appearing on behalf of the debtor was John Steichen of Nye, Fellman, Moylan & Brown, Omaha, Nebraska. Appearing on behalf of the trustee was Brent Kuhn of Harris, Feldman, Stumpf Law Offices, Omaha, Nebraska. Pursuant to Neb.Rev.Stat. § 25-1563 (Reissue 1989), d...
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I. INTRODUCTION On June 6th, 1990, I conducted a hearing (the “Trustee Hearing”) on the motion of the official committee of unsecured creditors in this Chapter 11 case (the “Committee”) for an order directing the United States Trustee to appoint a trustee to serve as the fiduciary of this bankruptcy estate in place of the then debtor in possession, Carl M. Rheuban (“Debtor”). After co...
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MEMORANDUM OPINION Upon the motion of David Harold Adkins and Margaret Ann Adkins (“Debtors”) to avoid lien pursuant to 11 U.S.C. § 522(f)(2) 1 and the objection thereto, filed by Blazer Finance (“Creditor”), the Court finds the lien upon the Debtors’ three televisions, VCR, stereo, two speakers, phonograph, guitar and lawn mower (“Property”) is avoidable and the Property exemp...
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OPINION The instant motion of the two Debtor-Defendants in this proceeding seeks to have us dismiss the proceeding as an attempt to circumvent the Plaintiffs’ failure to file proofs of claim prior to the bar date in their related cases and to have us award them damages under 11 U.S.C. § 362(h). We agree that the proceeding must be dismissed as to the movants and consequently dismissed aga...
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OPINION Before the Court is the Objection to Exemption and Opposition to Debtors’ Motion to Avoid Liens. The Debtors, William Bruce Sugarek and Sharon Kay Sugarek, are farmers and filed a joint petition under Chapter 7 on August 7, 1989. Pursuant to 11 U.S.C. § 522(b)(1) the Debtors have chosen the federal exemptions and have claimed as exempt implements and tools of trade under § 522(d)(...
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OPINION A. INTRODUCTION The instant matter, retained in this court upon remand from a state court because of its status as a core proceeding in this reopened case converted from Chapter 11 to Chapter 7, presents an alleged creditor’s claim against a Trustee and his predecessor’s bonding company for failure to pay his claim in the distribution of the estate’s assets. In reviewing the ...
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The Court has before it the fee applications of William L. Needier & Associates and National Farm Management Ltd., filed by the respective parties in the above referenced case. Objections to the same have been received from newly-retained counsel for the debtors and the United States Trustee. The U.S. Trustee has also moved for an order under 11 U.S.C. § 329 to disgorge improvidently paid fees....
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DECISION This matter is before the court on debt- or’s application for approval of compensation to insiders and the objections thereto. Debtor seeks to continue compensating certain insiders at the same rate of pay and upon the same terms and conditions as those individuals were being compensated prior to the date of the petition. The application has the support of the unsecured creditors...
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DECISION AND ORDER DENYING MOTION OF BANC ONE MORTGAGE CORPORATION TO REOPEN CASE AND REVISE COURT ORDER Before the court is a motion of Banc One Mortgage Corporation entitled “Motion to Reopen Case for Limited Purpose of Revising Court Order and Notice of Opportunity for Objection and Hearing.” The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference en...
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DECISION AND ORDER This matter comes before this Court pursuant to an Order to Show Cause brought by the Debtor seeking an order (1) holding the Tivoli Motel (hereinafter the “Landlord”) and the Sheriff of Nassau County (hereinafter the “Sheriff”) in contempt for evicting the Debtor from his place of business in violation of the Automatic Stay, and *16 (2) directing those entities to restore ...
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MEMORANDUM OPINION Julian J. Bortolin, Trustee of the Western Educational Services, Inc. Pension Plan (the “Western Plan”) and Michael F. Per-rett and John R. Webster, Trustees of the Hathaway, Perrett, Webster, Powers & Chrisman Money Purchase Pension Trust (the “Hathaway Trust”) (together “Claimants”) filed secured claims for their respective entities (the “Claims”). Debtor objected to ...
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MEMORANDUM AND ORDER Debtor, John Richardson, seeks to avoid the lien of defendant, Deborah Richardson Leniclc, as an unsecured claim under 11 U.S.C. § 506(d). The defendant holds a second mortgage on real property owned by the debtor, and the parties have stipulated that the value of the property is less *547 than the balance due to the first mortgagee, Farm Credit Bank of St. Louis (“Farm C...
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OPINION This matter came before the court upon the defendant’s motion to dismiss this ad*597versary proceeding. The court may treat the motion to dismiss as a motion for summary judgment, B.R. 7012(b), and will do so as appropriate. The plaintiff is represented by Blair Henningsgaard of Astoria, Oregon and the defendant is represented by Mark Nebergall, Trial Attorney, Tax Division, U.S. Dept, of ...
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MEMORANDUM OPINION Before the Court is the Plaintiff’s motion for summary judgment in this action challenging dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(6). The parties filed stipulations of fact. In addition, Plaintiff filed an affidavit, brief, and documents in support of its motion. The Debtor/Defendant has not responded to the motion for summary judgment. The Court finds that t...
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ORDER ALLOWING EXEMPTION This case came on for hearing on the objections of the trustee and Park National Bank to the debtor’s claim of exemption of approximately $68,000.00 in an individual retirement account. G. Martin Johnson appeared on behalf of the trustee, James Michels appeared for the bank and James A. Lodoen appeared for the debtor. This court has jurisdiction pursuant to 28 U.S...
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MEMORANDUM DECISION Plaintiffs, Thomas G. Beach, Charles A. Carpenter, Charles R. Carpenter, Charles I. Trainer, Baker G. Clay, and Daniel J. McCarty (“Plaintiffs”), have sued First Union National Bank of North Carolina (“First Union”), seeking release from obligations related to a letter of credit, money damages, subrogation rights, and recovery of litigation expenses. First Union has mo...
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OPINION The Internal Revenue Service (IRS) appeals from the court’s order concluding that the IRS was estopped from asserting that the debtors’ 1984 income taxes were not assessed on April 16, 1987 for purposes of the dischargeability of the taxes, and consequently that the debtors’ tax liability to the IRS for the 1984 tax year was discharged. We reverse. FACTS The debtors Bria...
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MEMORANDUM DECISION Plaintiff, Peter M. Gennrich, trustee of International Ski Service, Inc. (“International Ski”), seeks to recover from Defendant, Montana Sport U.S.A., Ltd. (“Montana”), the value of what has been stipulated by Montana to be a preferential transfer. 1 The facts are not disputed. Within ninety days prior to filing its bankruptcy petition, International Sk...
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MEMORANDUM This Memorandum addresses a Motion by the three above-named Debtors, proponents of a joint Plan of Reorganization, who sought to have us temporarily disallow seven of eight proofs of claims filed in these various cases by Frederick Blum-berg, Esquire (“Blumberg”). Because Blumberg chose to present virtually no evidence to support his claims against the Debtors’ short but straig...
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MEMORANDUM OF DECISION RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff moves for a summary judgment in this adversary proceeding seeking a declaration that Defendants’ obligation to her was incurred by fraud and is therefore nondischargeable under Section 523(a)(2). Prior to the filing of the bankruptcy, Plaintiff sued Defendants in state court alleging, among other theories, the fraud cla...
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RULING RE: COMPLAINT TO RECOVER PROPERTY This matter is before the Court on the complaint of plaintiff, debtor, Cedar Rapids Meats, Inc. C.R. Meats seeks to recover property from defendant, the Insurance Commissioner for the state of Iowa, that C.R. Meats claims is part of its bankruptcy estate. C.R. Meats also seeks to reject a contract with the Insurance Commissioner that C.R. Meats cla...
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MEMORANDUM OF DECISION In this action, Plaintiffs-Debtors seek to avoid as a preferential transfer a judgment lien recorded against their real property within 90 days of the filing of the bankruptcy petition. At the trial, the Defendant-Creditor moved to dismiss the action at the conclusion of Plaintiffs’ evidence, B.R. 7041, and because of the legal issue presented, the Court took the mo...
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OPINION AND ORDER This is a short opinion with long consequences. It may considerably affect the relationship among developers, lenders, title insurance companies, general contractors and subcontractors for time to come. Here is a lesson that the law cannot become subordinated to convenience. In the construction industry and, unfortunately, in the realm of bankruptcy we are familiar ...
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ORDER ON MOTION TO DISMISS OR CONVERT THIS is a Chapter 11 case commenced by filing a Petition for Relief by Don Sellers Village Lanes, Inc. (Debtor) on September 21, 1990. The present matters under consideration are the following: 1) a Motion To Dismiss or Convert filed by Whitney Management Corporation (Whitney Management); 2) a Motion To Compel Payment of Rent, also filed by Whitney Manageme...
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ORDER ON DEBTOR’S VERIFIED MOTION FOR RELIEF UNDER 11 U.S.C. § 303(i) OR BANKRUPTCY RULE 9011 THIS IS an involuntary Chapter 7 case filed pursuant to Section 303 of the Bankruptcy Code by Robert F. Caravella (Carav-ella) against Raymond J. Kearney, Sr. (Kearney). The matter under consideration is a Motion filed by Kearney who seeks to recover, pursuant to Section 303(i)(l)(A) or (B) of th...
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OPINION Before the court is a motion filed by Home Savings of America, F.A. (“mov-ant”), a secured creditor in this chapter 11 proceeding, requesting that we transfer venue of this case to the Western District of Texas pursuant to 28 U.S.C. § 1412. Because we find that the interests of justice and the convenience of the parties favor venue in the Western District of Texas, we grant the motion. ...
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ORDER ON MOTION FOR ABSTENTION THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion To Abstain in the above-captioned adversary proceeding, filed by the United States of America (Government) on behalf of the Internal Revenue Service (IRS). In order to place the issue raised by the Government in proper focus, it should be helpful to recap briefly the procedural bac...
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ORDER ON MOTION FOR RELIEF FROM STAY, MOTION TO ABSTAIN, AND MOTION TO DISMISS THESE are three related Chapter 11 cases which have been substantively consolidated with thirteen other related Chapter 11 cases. The matters under consideration are Motions for Relief from Stay, Motions To Dismiss and Motions To Abstain, all filed by Aristech Chemical Corporation (Aristech) in the above-captio...
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ORDER ON MOTION FOR ALLOWANCE OF ADMINISTRATIVE CLAIM THIS is a Chapter 7 case and the matter under consideration is a Motion for Allowance of Administrative Claim filed by E.F. Hutton & Co., Inc. (E.F. Hutton). Through the Motion, E.F. Hutton seeks the entry of an order allowing any costs to be awarded to E.F. Hutton by the United States District Court for the Middle District of Florida ...
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*638 FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 11 case filed by Melvin R. McCoy (Debtor) and the matter under consideration is a claim of nondis-chargeability asserted by Tropical Exploration Corporation, Inc. (Tropex), who filed this adversary proceeding. The claim of nondischargeability is set forth in a two-count Complaint. In Count I, it is...
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PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMMENDATION PURSUANT TO BANKRUPTCY RULE 5011 ON MOTION TO ABSTAIN THE MATTERS under consideration are raised in several not-yet-consolidated Chapter 11 cases filed by Hillsborough Holdings Corporation (HHC), the parent of Walter Industries and 30 of its subsidiaries, all of whom seek relief under Chapter 11 of the Bankruptcy Code. The i...
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DECISION ON MOTION FOR AN ORDER APPROVING STIPULATION The trustee in bankruptcy of the above-captioned Chapter 7 debtor and Berkley Arms Apartment Corporation, a plaintiff in an action commenced in the Superior Court of the State of New Jersey (the “state court action”), have submitted a stipulation for approval by this court terminating the automatic stay in order to permit the state cou...
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MEMORANDUM ON PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS AND/OR FOR SUMMARY JUDGMENT The plaintiff, through this adversary proceeding, seeks a determination that the sum of $16,007.13 awarded it under the terms of a “Final Judgment” entered March 16, 1989, in the Law Court for Johnson City, Tennessee, against the debtor, Edward Brice Morrison, is nondischargeable. 1 Nondi...
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MEMORANDUM OPINION This matter comes before the Court on the joint motion of the Debtors and the Unsecured Creditors’ Committee (the-“Committee”) to strike portions of pleadings filed by Home Savings Association of Kansas City, F.A. (“Home Savings”) and for sanctions against Home Savings and its attorneys under Federal Rules of Civil Procedure 11 and 12(f) and Federal Rules of Bankruptcy ...
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*399 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This adversary proceeding came on for trial upon the complaint of Household Bank, N.A. (Household) against Angela Marie Touchard (Touchard), the debtor in this chapter 7 case. Household’s complaint sought judgment in the sum of $11,146.30 together with interest, costs, and attorney's fees, on a credit card debt owed Household by Touchard, a...
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DECISION AND ORDER Heard on August 23, 1990 on the motion of the Trustee for a determination that the State of Rhode Island does not have a right of setoff against funds owed by the State to the debtor, postpetition. The present dispute arises out of an order entered by this Court on March 15, 1990 approving a compromise between the State of Rhode Island, represented by John Farley, Esq., and the ...
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DECISION AND ORDER FINDING DEFENDANT IN VIOLATION OF AUTOMATIC STAY PROVISIONS OF 11 U.S.C. § 362 AND ORDERING TURNOVER OF FUNDS Before the court is a motion of Jacqua and Ernestine Figgers (Debtors) to find Dayton Power and Light Employees Federal Credit Union (Defendant) in violation of the automatic stay provisions of Section 362 of the Bankruptcy Code. The court has jurisdiction pursu...
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MEMORANDUM The issue is whether a corporate officer who pays a 100% tax penalty under 26 U.S.C. § 6672 acquires by subrogation a nondischargeable claim against the debtor, another corporate officer against whom the IRS might also have imposed “responsible person” liability. There is no right of sub-rogation. I. The debtor and Patterson were directors, officers and shareholders o...
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MEMORANDUM The issue is whether a Chapter 11 debt- or’s counsel must give the same notice of a prepetition retainer agreement that is required to be given of an application for approval of fees. Neither the Code, the Bankruptcy Rules, nor the Local Rules require such notice. I. The debtor filed Chapter 11 on April 24, 1990. With the petition, the debtor filed an application to e...
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MEMORANDUM OPINION This matter comes before the Court on the application of Max Chill and Steven R. Radtke (collectively referred to as the “Applicants”) pursuant to 11 U.S.C. § 331 and Federal Rule of Bankruptcy Procedure 2016 for allowance of interim compensation in the amount of $44,476.50 and reimbursement of expenses in the amount of $499.10, for the period January 5, 1990 through Au...
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MEMORANDUM OPINION AND ORDER ON DEBTOR’S MOTION TO DETERMINE STATUS OF CLAIM OF KENTUCKY CONSUMER PROTECTION DIVISION AND ON COMMONWEALTH OF KENTUCKY’S MOTION FOR ENLARGEMENT OF TIME TO FILE PROOF OF CLAIM This core proceeding 1 was heard on December 4, 1989, on the Debtor’s Motion to Determine Status and Amount of Claim of Kentucky Consumer Protection Division and on the Commonwealth of Kent...
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MEMORANDUM The issue is whether debtor’s counsel’s fee application should be reduced for intra-office conferences, attendance by two attorneys at the same court hearings, and other “duplications” of effort. Because counsel’s voluntary five percent reduction adequately compensates for any unreasonable or unnecessary “duplicative” billing, the fee application is approv...
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DECISION AND ORDER Before the Court is a motion by Agostine A. Charles 1 to lift the automatic stay to proceed with a personal injury lawsuit against United States Lines, Inc. & United States Lines (S.A.), Inc. Reorganization Trust (the “Trust”). By the same motion, Charles seeks to amend his claim from $90,000 to $400,000. The Trust objects to the motion and the amendment. ...
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DECISION AND ORDER Heard in Denver on May 10, 1990, on the request of the Inn at Silvercreek Homeowner’s Association (HOA), for payment of condominium fees as post-petition administrative expenses. The motion is opposed by the debtor, Silvercreek Development Company, and GEICO Financial Services, Inc., a secured and post-petition financing creditor. At the conclusion of HOA’s direct presentation, ...
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MEMORANDUM OPINION Several motions by Pitt Retail Ventures, Inc. (“Pitt Retail”) are before the Court at this time. Pitt Retail has brought: (1) a motion for reconsideration of the Order of September 25, 1990, approving the sale of Liquor License No. R-9908 to Glenda Tongdee; (2) a motion to stay the order approving the trustee’s motion to sell said liquor license; and (3) a motion for a new tria...
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ORDER ON APPLICATION FOR ALLOWANCE OF COMPENSATION AND REIMBURSEMENT OF EXPENSES Debtors filed their Chapter 13 petition herein on May 26, 1989. Debtors were represented by counsel, Mr. Herbert M. Graves, of Sullivan, Graves & Densmore, P.C., Oklahoma City, Oklahoma (hereafter referred to, individually and collectively, as “counsel for debtors” or “applicant”). Pursuant to 11 U.S.C. § 329...
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MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT THIS MATTER came before the court August 2, 1990 on cross motions for summary judgment. The plaintiff, Diasonics, is an unsecured creditor of Synergetics (“Debtor”). The Debtor filed its Chapter 11 petition for bankruptcy on June 7, 1988. On October 16, 1989, Diasonics filed its complaint in this adversary proceeding seeking to have...
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ORDER ON DEFENDANT’S MOTION TO DISMISS THIS MATTER is before this court on defendant’s Motion to Dismiss plaintiff’s Complaint for failure to state a claim upon which relief can be granted. The plaintiff subsequently responded to defendant’s mo *889 tion, and a hearing was held on September 20, 1990. During the hearing, it was determined that Count II of plaintiffs complaint stated a cause of...
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MEMORANDUM OPINION Before the Court is an involuntary Chapter 7 petition brought by Bank One Cleveland, Century Surety Company, Alliance Indemnity Insurance Company, and National American Insurance Company (“petitioners”) against Milo and Violet Prisuta (“alleged debtors”). Petitioners assert in their petition that they hold claims against alleged debtors aggregating approximately $1,000,000....
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MEMORANDUM OPINION In this chapter 7 adversary proceeding, we are faced with an issue, heretofore unresolved in this district, concerning the status of a debt which arose as a result of the owner’s failure to insure her automobile. The case is now before the court on the parties’ cross motions for summary judgment, pursuant to Fed.R.Civ.Pro. 56 and Bankr.R. 7056. For the reasons which fol...
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ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT These motions are before the court in an adversary proceeding initiated by the debt- or-in-possession. Both parties filed memo-randa in support of their respective positions, and a hearing was held October 4, 1990. The issue before the court is whether a debtor-in-possession can avoid a fede...
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*309 ORDER ON DEFENDANT’S MOTION TO DISMISS Although this court believes that a decision, on the sole issue presented by defendant’s motion and plaintiffs response, may be readily made and that the result is without serious doubt, the court is of the view that the few cases which have discussed the issue, and this court in its previous orders herein, have employed terminology whi...
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ORDER ON CITY NATIONAL BANK’S OBJECTION TO SALE THIS MATTER came to be heard before the Court on City National Bank’s (“CNB”) objection to the Chapter 7 Trustee’s proposed sale of property free and clear of lien and encumbrances. CNB also asks this Court to determine that CNB is entitled to the proceeds of such a sale. The Trustee asserts that CNB did not properly perfect its security int...
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dissenting: I respectfully dissent. Although the majority gives lip service to California’s policy of liberal interpretation of security agreements, it then concludes that the debtor’s “revenues” are not “contract” rights. I conclude otherwise. Since the only income of the debtor was from the patients, which rights were governed by' contracts, it makes no sense to say that this income was not inte...
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MEMORANDUM OPINION Before the Court is a motion by Pittsburgh National Bank (“PNB”) for reconsideration of an order issued by this court on June 26, 1990, declaring that PNB’s lien on Debtor’s property had been satisfied in full. PNB alleges in its motion that the order is violative of procedural due process guaranteed by the United States Constitution in that it was not given reason...
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OPINION A. INTRODUCTION We herein decide two matters related to the above entitled case, both of which were initiated by UNITED JERSEY BANK (“UJB”), the Trustee under a Trust Indenture (“the TI”) through which construction of a nursing home formerly operated by CS ASSOCIATES, d/b/a UNIVERSITY NURSING AND REHABILITATION CENTER, the Debtor in this case (“the Debtor”), was financed. The...
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ORDER ON MOTION TO DISMISS AND FOR EXTENSION OF TIME THIS MATTER came on for hearing on November 8, 1990, on the Motion of the Farm Credit Bank of Columbia (FCB) to Dismiss this Chapter 12 case and on the Debtors’ Motion for Extension of Time within which to file the debtors’ farm plan. For the reasons set forth below, FCB’s Motion to Dismiss will be granted and the Debtors’ Motion for Extensio...
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Before the court is the motion of a senior mortgagee of MacFarlane Webster Associates (“MacFarlane Webster” or the “Debt- or”) seeking, inter alia, an order pursuant to section 707(a) of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. (1988) (the “Code”), dismissing the instant chapter 7 bankrupt *695 cy case commenced by the filing of an involuntary petition fi...
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MEMORANDUM OPINION The debtor has voluntarily moved to dismiss this Chapter 11 case following termination of the automatic stay in favor of the secured creditor, Henderson Home Savings and Loan Association (“Henderson Home”). The concurrent pendency of a Chapter 7 case on the debtor’s behalf gives rise to the issue, heretofore unresolved in this district, of whether a debtor should be permitted...
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MEMORANDUM OPINION Before me is a motion brought by Heller Financial, Inc. (“Heller”), which seeks an order for “Sequestration of Rents” currently collected by Wynnewood House Associates (“debtor”) and that are allegedly the cash collateral of Heller. The facts may be summarized as follows and were stipulated to by the parties. I. The debtor filed a petition under chapter 11 of ...
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MEMORANDUM OPINION This matter is before the court on the motion of the Plaintiff, Nathan Yorke (“Yorke” or “Trustee”), as Trustee of the Debtor, Santa Fe Trail Transportation Company (“Debtor” or “SFTT”), for production of certain documents from the defendant, Santa Fe Industries, Inc. (“SFI” or “Defendant”). On May 11, 1989, the Trustee moved to compel SFI to produce certain documents w...
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MEMORANDUM OPINION ON INTERNATIONAL INSURANCE COMPANY’S MOTION TO DISMISS OR IN THE ALTERNATIVE TO ABSTAIN The Defendant International Insurance Company (“International”) has moved to dismiss, or alternatively, to abstain from hearing Count I of the Amended Complaint (“Complaint”) of the Official Creditors’ Committee of Products Liability and Personal Injury Claimants (“Committee”). Count...
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ORDER GRANTING MOTION TO DISMISS COMPLAINT THIS MATTER came for trial before the Court on November 14,1990, upon the complaint of Pembroke Development Corporation (the “debtor”) against Carteret Savings Bank, F.A. (the “creditor”) for Injunc-tive and Declaratory Relief, and the creditor having raised an ore tenus Motion To Dismiss Complaint, and the parties having submitted mem...
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ORDER RE: MOTION OF U.S. TRUSTEE TO DISMISS OR CONVERT This Chapter 11 case came on before the Court on November 20, 1990, for hearing on the motion of the U.S. Trustee for conversion or dismissal. The U.S. Trustee appeared by his attorney, Michael R. Fadlo-vich. Charles E. Spring appeared on behalf of Debtor. 1 Upon the moving and responsive documents, arguments of counsel, an...
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MEMORANDUM DECISION PRELIMINARY STATEMENT This matter comes before the court upon the request of the above-captioned Debtor, Oklahoma P.A.C. (“Debtor”) for a determination to what extent counsel for numerous secured creditors must file a verified statement pursuant to Bankruptcy Rule 2019. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1334(a) and 157(b)(2...
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DECISION RE APPLICATION FOR REMOVAL The United States of America sued John D. Croley in the district court in 1989 in United States v. Croley, Civil Action No. 89-0885 GAG (D.D.C.), to collect on three promissory notes for defaulted student loans. On October 26, 1990, Croley filed in this bankruptcy court a voluntary petition commencing a case under Chapter 7 of the Bankruptcy Code. On Octobe...
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ORDER RESTRICTING UNAUTHORIZED USE OF AND TURNOVER OF RENTS, GRANTING RELIEF FROM STAY, DENYING MOTION TO DISMISS, DENYING USE OF CASH COLLATERAL AND CONTINUING HEARING ON MOTION TO ACCEPT EXECUTORY CONTRACT THIS MATTER came before the Court for hearing on November 27, 1990, on the Motion’s of Secured Creditor, Waters Mortgage Corporation (“Waters”), to: Restrict Unauthorized Use of Rents and t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the court upon the complaint of Royal Food Markets, Inc. (the “debtor”) against U.S. Berkel Food Machines, Inc. (the “creditor”) for declaratory relief and for a determination as to the validity, priority and extent of a lien, and the Court having heard the testimony, examined the evidence presented, observed the candor and de...
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MEMORANDUM OF DECISION ON INTERIM APPLICATION OF COUNSEL FOR THE PROJECT NO. 6 PARTICIPANTS COMMITTEE FOR COMPENSATION AND REIMBURSEMENT OF EXPENSES AND APPLICATION FOR ALLOWANCE OF COMPENSATION FOR SERVICES AND REIMBURSEMENT OF EXPENSES OF ELECTRIC UTILITY CONSULTANT This matter is before the court on the Interim Application of Counsel for the Project No. 6 Participants’ Committee for Co...
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MEMORANDUM OF DECISION This opinion and order addresses a number of issues presently pending. Before discussing them specifically, a brief resume of the case will provide useful context. A. Background. This Chapter 11 case has been pending for over three years. 1 The Debtor, Eastern Maine Electric Cooperative, Inc., (EMEC), is a rural electric cooperative ...
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MEMORANDUM OF OPINION ON DISCHARGE The First National Bank of Amarillo (Bank) seeks to have the discharge of Tran-nie Lee Holmes and Jana K. Holmes (Debtors) denied under § 727(a)(5) of the Bankruptcy Code 1 . The court finds that the Debtors satisfactorily explained the loss of their assets and, therefore, the Bank’s complaint should be denied. Facts On June 11, ...
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MEMORANDUM DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court upon the Motion filed on December 19, 1989 by the Canadian Imperial Bank of Commerce (“Bank”) that the automatic stay imposed pursuant to Section 362(a) of the Bankrupt *395 cy Code be annulled. 1 The above-captioned Debtor, Oklahoma P.A.C. (“Debtor”) filed its Objection to this Motion on January 17, 19...
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MEMORANDUM OPINION Gerald E. Brown and Judy L. Brown filed their petition for relief under Chapter 11 on July 10, 1990. Debtors and the State Bank of Slater deny that Wood and Huston Bank have a claim secured by the proceeds of the Estate of Francis Lester Brown (father of Gerald E. Brown). For ease of discussion, Gerald and Judy Brown will be denominated as debtors; the State Bank of Slater as SB...
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OPINION In November of 1988, the Security State Bank of Hamilton (BANK) loaned the Plaintiffs $17,911.68 to purchase a 1985 Oldsmobile Cierra and took a security interest in the vehicle. In August of 1989, that loan and two others were consolidated into a single loan with the BANK again taking a security interest in the vehicle. The instrument evidencing the consolidated loan was a prepri...
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OPINION Background William J. Kubiak, Esq. (“Trustee”) filed the within adversary Complaint to Recover a Preferential Transfer in the amount of $634,864.94 from Vicorp Energy 1981 — A Private Drilling Program, Ltd. (“Vicorp 1981”) and Vicorp Energy, Inc. (“Vicorp Inc.”). *486 Following discovery, the Trustee and Vi-corp Inc. entered into an agreement in which Vicorp...
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*729 OPINION The law firm of MILLER and MILLER, counsel for the Debtor in this Chapter 13 bankruptcy case (“Counsel”), asks that we reconsider our Order of October 9, 1990, allowing it $1,200 of $2,000 sought as counsel fees for representation of the Debtor. Because we find that our award was already at the high end of the market rate for representation of a debtor in a Chapter 1...
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MEMORANDUM The legal issues involving the treatment of Nebraska county tax claims seem unending. In this case, I hold that a county’s claim for post-petition taxes accrues interest until confirmation at the Nebraska statutory rate of interest, and the claim for interest is entitled to administrative claim status. The County of Scotts Bluff, Nebraska filed an Application for Allowance and Paym...
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MEMORANDUM OF DECISION AND ORDER Plaintiff, Trustee James H. Cossitt (COS-SITT), seeks the return of a post-petition payment made by debtor to First American State Bank (BANK). Trial was held June 13, 1990 in Fort Dodge, Iowa. The court now issues this Memorandum of Decision which includes findings of fact and conclusions of law as required by Bankr.R. 7052. This is a core proceeding unde...
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MEMORANDUM OPINION AND ORDER This adversary proceeding was initiated by Pittsburgh National Bank (“PNB”) by the filing of a complaint to determine the validity, priority or extent of the debtors’ interest in property. The property in dispute herein is a potential cause of action held by the debtors against PNB. Essentially, the debtors seek to exempt any recovery realized from their potential sui...
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OPINION AND ORDER ON COMPENSATION FOR SPECIAL COUNSEL The Court has been requested to determine the allowance of compensation for services and the propriety and disposition of a retainer. The services were rendered by and the retainer paid to the law firm of Climaeo, Climaco, Seminatore, Lefkowitz & Garofoli Co., L.P.A. (“Climaco Firm”). The Court finds that the application of the Cli-maco Firm s...
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*528 MEMORANDUM OPINION This matter comes before the Court on the motion of CIT Group/Equipment Financing, Inc. (“CIT”) for reconsideration, or in the alternative, to vacate and defer the holding of the Court’s Memorandum Opinion and Order dated October 12, 1990, finding that CIT willfully violated 11 U.S.C. § 362. For the reasons stated below, the motion is denied. I.JURISD...
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MEMORANDUM OF DECISION This matter came before the Court on SouthTrust Mobile Services, Inc.’s Motion for Relief from the Stay or, in the alternative, Motion to Require Debtors to Redeem or Surrender Collateral or Expressly Reaffirm Debt. SouthTrust Mobile Services, Inc., contended that the Debtors, who had not been in default on payments to SouthTrust, were required by 11...
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OPINION AND ORDER GRANTING MOTION TO DISMISS CHAPTER 11 CASE This matter is before the Court on the Motion to Dismiss this Case (“the Motion”) filed by Oak Brook Apartments of Henrico County, Ltd. (“Debtor”) and the Objection of Mill Distributors and Louisiana Pacific Company (“the Objectors”). The Court heard the matter on August 14 and 27, 1990. The Court has jurisdiction in this contested matte...
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MEMORANDUM OPINION Upon the Debtors’ amended claim for,, exemption and the Trustee’s objection thereto, the Court, having examined the record including briefs submitted by both parties, makes the following findings of fact. FINDINGS OF FACT In May 1989, the Debtors gave a purchase money security interest in their mo *601 bile home to the predecessor in interest of Lender Service, Incorpor...
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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 filed by the plaintiff, Thomas C. Scott (“Trustee”), the duly appointed trustee in bankruptcy for Althea Marie Council (“Debt- or”), the debtor herein, and by the defendant, Ohio Public Employees Deferred Compensation Program (“Program”). The Trustee seeks judgment on ...
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ADJUDICATION A. FINDINGS OF FACT 1. The Debtor, DARILING COBB (“the Debtor”), filed the instant underlying Chapter 13 bankruptcy ease on October 18,1989. 2. Although the Debtor filed a matrix with the court at the time that she filed her petition, she made no further filings of any papers, including her Chapter 13 Statement and Plan, through May 4, 1990. At that time EDWARD SPAR...
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MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION I. Background A. The Prime Bankruptcy On September 18, 1990, Prime Motor Inns, Inc. (“Prime”) and fifty (50) of its direct and indirect subsidiaries, including Prime Management Co., Inc. (“Prime Management”) (collectively, the “Prime Debtors”) filed petitions for reorganization relief under chapter 11 of title...
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OPINION Background Wheeling-Pittsburgh Steel Corporation, Et Al. (“Debtor”), filed its Petition under Chapter 11 of the Bankruptcy Code on April 16, 1985. The Debtor’s Allenport and Monessen facilities received electric utility service from West Penn Power Company (“West Penn”) pursuant to a prepetition contract dated December 19, 1966 (the “Prepetition Contract”) until April 22, 1987, at...
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DECISION ON ORDER DENYING PLAINTIFF’S MOTIONS TO AVOID LIENS This proceeding, which involves the debt- or’s motions to avoid two judicial liens, 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, and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B) — allowance or disallow...
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DECISION ON ORDER DENYING DEFENDANTS’ MOTION TO DISMISS 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 administration of the estate, and (O) — other proceedings affecting ...
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MEMORANDUM OF DECISION This matter came before the Court on Debtor’s Motion to Reduce Claim and to Lower Payments, which sought to disallow the claim of Creditor Leader Federal Savings and Loan Association because of a discharge of the obligation in a previous Chapter 7 case. Debtor contended that the January 23, 1990 discharge relieved the Debtor of personal liability on debt secured by a mo...
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MEMORANDUM OF DECISION I. ISSUE In this adversary proceeding the plaintiff, People’s Bank, contends a debt due it from Thomas G. Kayser, the debtor, is nondischargeable because the debt was incurred by means of a materially false written financial statement submitted by the debtor to the plaintiff. See Code *667§ 523(a)(2)(B).1 The debtor concedes that the financial statement was, in part, false, ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court considers herein the Applications For Allowance of Professional Fees (“Fee Applications”) filed by the Unsecured Creditors’ Committee (“Committee”) on November 8, 1989, seeking compensation for its attorneys, Costello, Cooney & Fearon, Esqs. (“Costello”) for services rendered in each of these Chapter 11 cases, f...
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MEMORANDUM-DECISION, FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of the Application of Michael A. Adams (“Adams”), an unsecured creditor of Thomas G. and Patricia H. Joseph (“Debtors”), to “Intervene or Substitute” as a party-in-interest in a pending adversary proceeding commenced by J.K. Hage III (“Hage”) objecting, in part, to the discharge o...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter comes before the Court on the Debtor’s motion for an order seeking to enjoin the New York State Department of Insurance (“Insurance Department”) from revoking his license to act as an insurance agent within the State of New York. Debtor obtained a temporary restraining order from this Court purs...
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MEMORANDUM OF DECISION I. ISSUE The questions presented here are (1) whether a property management agreement between a real property owner and the debtor is property of the estate and (2) whether postpetition acts taken by a mortgagee foreclosing on the real property in securing the appointment of a receiver and the receiver’s subsequent actions in replacing the debtor violate t...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 12 PLAN I. PRELIMINARY CONSIDERATIONS AND JURISDICTIONAL STATEMENT This matter is before the Court upon the requested confirmation of a First Amended Plan of Reorganization (the “Amended Plan”) proposed by the debtor under Chapter 12 of the Bankruptcy Code. Bank One of Marion, N.A. (“Bank One”) objected to confirmation. The ma...
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MEMORANDUM OF DECISION Introduction. The Court has under advisement a Motion to Modify Plan filed in this Chapter 12 case by the Trustee, Mr. Fitzgerald. Debtors’ plan was confirmed in January of 1988, and has been the subject of two uncontested modifications sponsored by Debtors. Debtors have recently completed the last of their “sum certain” payments to Trustee for the benefit of their cr...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER This contested matter is before the Court by way of a motion to lift the automatic stay filed by John J. Muraco, Frank J. Muraco, Muraco Trust Associates and MSM Development Company of Central New York, Inc. (“Movants”) so as to allow the Movants to proceed with state court eviction proceedings with respect to the possess...
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MEMORANDUM This adversary proceeding is before the court upon cross-motions for partial summary judgment filed by the plaintiff and defendant. The question to be determined *791 at this stage of the proceeding is whether the trustee is liable to the plaintiff for damages for missing and defective equipment sold by the trustee to the plaintiff pursuant to a confirmed chapter 1...
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MEMORANDUM OPINION Now before the Court is Plaintiffs “Complaint to Determine Dischargeability of Debt and for Other Matters.” Trial was scheduled for September 26, 1990. The Plaintiff, Claude H. Smith, appeared through counsel Jim Lyons, Esq. The Defendant, James Jackson Webb, appeared through counsel, Warren Dupwe, Esq. The Trustee, A. Jan Thomas, appeared pro se. Plaintiffs Complaint all...
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ORDER ON MOTION TO DISMISS THESE ARE consolidated Chapter 11 cases, and the matter under consideration is a Motion To Dismiss the above-styled adversary proceeding filed by Federal Insurance Company (Federal Insurance). The Court has heard argument of counsel, has considered the Motion, together with the record, and is satisfied that the Motion is well taken and should be granted for the follow...
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DECISION This matter is before the court to consider debtor’s motion for an extension of the exclusive time that it has to file a proposed Chapter 11 plan, pursuant to 11 U.S.C. § 1121. Although the motion has the support of the unsecured creditors committee, two secured creditors, Summit Bank and Peru Trust Company, object. Section 1121 of the Bankruptcy Code gives the debtor the ex...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation case, and the matter presently under consideration is an adversary proceeding filed by Erwin and Ursula Weinreich (Plaintiffs) against Ben B. Langworthy, Jr. (Debtor). The Plaintiffs seek a determination that an obligation allegedly owing to them by the Debtor is nondischargeable pursuant to 11 U.S.C. § ...
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*141 ORDER ON APPLICATION FOR ALLOWANCE OF INTERIM COMPENSATION AND REIMBURSEMENT OF EXPENSES OF OPPENHEIMER WOLFF & DONNELLY, P.A., BROWN & WOOD, P.A., STICHTER, RIEDEL, BLAIN & PROSSER, P.A., AND KAHN CONSULTING, INC., AS ACCOUNTANTS FOR THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS THIS IS a yet to be confirmed Chapter 11 case filed on November 10, 1989, or a year ago. The mat...
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ORDER ON JOINT MOTION OF THE FERRO CORPORATION AND ARIS-TECH CHEMICAL CORPORATION FOR RECONSIDERATION OF ORDER ON MOTION FOR AUTHORIZATION TO FILE LATE OBJECTION AND COUNTERCLAIM AND ON MOTION FOR RULE 9011 SANCTIONS THIS CAUSE came on for consideration, ex parte, upon the Joint Motion of the Ferro Corporation (Ferro) and Aristech Chemical Corporation (Aristech) for Reconsideration of thi...
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ORDER ON APPLICATION FOR FEES BY ADDISON, KETCHEY & HORAN, P.A. THIS IS a Chapter 7 stockbroker liquidation case and the matter under consideration is the Application for Fees filed by Addison, Ketchey & Horan, P.A. (Addison, Ketchey). Addison, Ketchey was authorized by this Court to serve as special counsel for George Hadley, the Trustee in this Chapter 7 liquidation case after the Trustee filed...
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ORDER ON AMENDED MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR RELIEF FROM THE AUTOMATIC STAY THIS is a Chapter 13 case and the matter under consideration is an Amended Motion To Dismiss or, in the Alternative, for Relief from the Automatic Stay filed by NCNB National Bank of Florida, f/k/a Ellis Mana-sota Bank (NCNB). NCNB seeks a dismissal pursuant to § 1325(a)(3) of the Bankruptcy Code or, i...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTIONS THIS IS a Chapter 7 liquidation case and the matter under consideration is an Objection filed by the Trustee to the Debtors’ claim that funds held in a Glendale Federal Savings Employees’ Sheltered Pay Plan (Plan) are not property of the estate or, alternatively, are exempt from administration of the bankruptcy estate pursuant to Fla.Stat. ...
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ORDER ON OBJECTIONS TO CLAIMS OF EXEMPTIONS THESE are Chapter 7 liquidation cases, and the matters under consideration are Objections filed by the Trustee in each case to the Debtors’ claims that funds held in their respective ERISA qualified pension, employee stock ownership and/or profit-sharing plans are not property of the estate or, alternatively, are exempt from administration of th...
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DECISION RE MOTION TO DISMISS AND TRUSTEE’S MOTION FOR SUMMARY JUDGMENT The plaintiff, the trustee in the debtor’s Chapter 7 case, seeks turnover of the debt- or’s retirement fund. The court concludes that property immune from the reach of creditors under the anti-alienation provisions of ERISA, 29 U.S.C. § 1056(d)(1), is not property of the estate under 11 U.S.C. § 541(c)(2). In re Moore, 90...
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ORDER ON MOTION TO ALLOW FILING OF UNSECURED CLAIM (Farmers Home Administration) ORDER ON DEBTOR’S MOTION TO STRIKE CLAIM The issue presented by the above motions is: “Can Farmers Home file an unsecured deficiency claim in debtor’s Chapter 13, where: (a) It had no notice or knowledge of the pending bankruptcy when it foreclosed debtor’s real estate mortgage; (b) The debtor’s plan and schedu...
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MEMORANDUM DECISION RE: CROSS-LAND MORTGAGE CORPORATION’S MOTION TO PAY OVER OR SEQUESTER RENTS This matter came before the court on the motion of CrossLand Mortgage Corp. (“CrossLand”) to pay over or sequester rents collected during bankruptcy by the debtor from an apartment complex in which CrossLand has a recorded Deed of Trust and a recorded Assignment of Rents. FACTS CrossL...
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OPINION ON TRUSTEE’S MOTION TO AMEND PLAN The question on this submission is whether, upon trustee’s motion filed under 11 U.S.C. § 1329 to modify debtor’s plan, the plan should be modified to require debt- or to pay trustee for three full years and distribute to unsecured creditors 19 percent instead of 7 percent. Trustee’s motion was precipitated by the failure of several creditors to file cl...
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MEMORANDUM ON TRUSTEE’S OBJECTIONS TO DEBTORS’ AMENDED CLAIM OF EXEMPTION The court has before it objections filed March 1 and June 7, 1990, by Ann Mostol-ler, Trustee, to the claim of the debtor, James Hornsby Leamon, to an exemption in certain annuity plans established through the Tennessee Valley Authority Retirement System (TVARS). 1 The debtor claims his exemptions under T...
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MEMORANDUM DECISION ACTION Chapter 12 Trustee/Movant Rick A. Yar-nall (“Trustee”) filed a Bankr.R. 2004 (“2004”) examination motion to depose Debtors/Respondents Anthony Lee and Sharlene Marie Gross (“Debtors” or “Grosses”) on grounds the Trustee believes Debtors, post-confirmation, transferred real estate they failed to list on their schedules. Debtors resist any discovery attempt, arguing t...
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ORDER THIS MATTER came before the Court on October 23, 1990 for trial on the Plaintiffs Complaint against the Defendants (Debtors) objecting to discharge pursuant to 11 U.S.C. § 727(a)(2)(A), § 727(a)(4)(A), and § 727(a)(3). Following the presentation of evidence by both parties, the Court found in favor of the Debtors on the Plaintiffs claims under § 727(a)(3) and § 727(a)(4)(A). The Cou...
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STATEMENT OF THE CASE Roger Anthony Watson, Debtor, Defendant, filed a petition under Chapter 7 of the Bankruptcy Code on December 13, 1989. Bentley C. Adams, Jr., Plaintiff, filed a “Complaint Objecting to Discharge of Debtor” on May 11, 1990. Defendant filed a timely answer. A trial was held on October 2, 1990. The Court, having considered the evidence presented and the arguments of coun...
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MEMORANDUM OPINION AND ORDER The two matters before the court are the “Motion with Respect to Restraining OTS Action” filed by the chapter 11 debtor, Firstcorp, Inc., on December 7, 1990, and the debtor’s “Application for Temporary Restraining Order” filed on December 11, 1990, initiating an adversary proceeding against The Office of Thrift Supervision. A hearing was held in Raleigh, Nort...
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MEMORANDUM This memorandum contains the findings of fact and conclusions of law required by Fed.R.Civ.P. 52 and Fed.Bankr.R. 7052. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J). Findings of Fact, Conclusions of Law and Discussion This debtor purchased certain assets used in his shoe repair business and gave an unsecured note for the obligation. His wife also signed the note and ...
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ORDER ON CLAIM AND COUNTERCLAIM Memorandum. The above-styled adversary proceeding in the above-styled chapter 11 bankruptcy case was instituted when the debtor (on April 3, 1990) caused the removal to the bankruptcy court of a civil action in the state courts. The civil action was commenced by the plaintiff against the defendant (Womack) on his alleged guarantee of an indebtedness alleged t...
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MEMORANDUM OF DECISION This matter comes before the court on the APPLICATION BY SPECIAL COUNSEL FOR DEBTOR, PENDYGRAFT PLEWS & SHADLEY, FOR ALLOWANCE OF INTERIM COMPENSATION AND REIMBURSEMENT OF COSTS ADVANCED TO DATE. A hearing was held on October 29, 1990, after which the matter was taken under advisement. It is now ready for decision. JURISDICTION Pursuant to 28 U.S.C. § 157(...
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MEMORANDUM OP DECISION This matter comes before the court on Trustee William J. Tabor’s (“Trustee”) MOTION FOR SUMMARY JUDGMENT ON HIS COMPLAINT FOR ACCOUNTING AND TURNOVER OF ASSETS against defendants Employee Benefits Committee and Trustees of the Lilly Employee Savings Plan (“the Fiduciaries”), and Fiduciaries’ *1008 MOTION FOR SUMMARY JUDGMENT. The debtor/defendant, Sharo...
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ORDER This matter is before the Court pursuant to the Motion for Summary Judgment brought by La Salle Street Fund, Inc. of Delaware (hereinafter La Salle or landlord) (Doc.1981); La Salle’s Brief in Support *517 (Doc.1982); La Salle’s Supplemental Brief in Support of Motion for Summary Judgment (Doc.2026); Montgomery Ward, Inc.’s Memorandum in Opposition to La Salle’s Motion (Doc.2050); and D...
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MEMORANDUM OPINION This matter comes before the Court on the motions of Heritage Bank Tinley Park (“Heritage Bank”) for summary judgment pursuant to Federal Rule of Civil Procedure 56, incorporated by reference in Federal Rule of Bankruptcy Procedure 7056, and to dismiss the counterclaims filed by Jay A. Steinberg as trustee (the “Trustee”) of the estate of The Grabill Corporation (“Grabi...
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MEMORANDUM AND ORDER The issue to be decided is whether Barry Garneau, the Debtor, is entitled to a “hardship” discharge of his student loan pursuant to 11 U.S.C. § 523(a)(8)(B). Having reviewed the testimony and evidence presented at the trial of this matter, the Court finds that the Debtor has not sustained his burden to prove he is entitled to a “hardship” discharge. The Debtor filed a pet...
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OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding is before the court upon cross motions for summary judgment. The first motion was filed by the plaintiff, David M. Whittaker, the trustee (“Trustee”) of the Chapter 7 bankruptcy estates of Herbert and Versell Lamons. Defendant BancOhio National Bank (“BancOhio”) also moved for summary judgment. Both motions ...
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OPINION AND ORDER Before the Court is the complaint of Brenda Kessler (hereinafter “Plaintiff”) requesting a determination of the discharge-ability of a debt pursuant to 11 U.S.C. § 523(a)(5) of the Bankruptcy Code. For the reasons provided herein, we find the debt dischargeable. The facts are as follows. On or about March 9, 1989 the parties entered into a Marriage Settlement Agreement which...
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DECISION ON MOTION FOR DETERMINATION OF EXISTENCE •OF LEASE The movants, John Mountroukas, Christ Mountroukas, Peter Modroukas, Steve Moundroukas and Seven Star Diner, Ltd. (The “movants”) are the record owners of nonresidential real property on Fort Hill Road, Yonkers, New York (the “Property”), which they leased to the debtor, Seven Stars Restaurant, Inc., for the operation of a diner. The mo...
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DECISION ON ORDER TO SHOW CAUSE WHY DEFENDANTS SHOULD NOT BE PRELIMINARILY ENJOINED AND TEMPORARILY RESTRAINED FROM SOLICITING BUSINESS FROM PLAINTIFF’S CUSTOMERS. The Chapter 11 debtor, Golden Distributors, Ltd., has moved for a temporary restraining order and preliminary injunction to prevent the defendants, Bernard Reiss (“Reiss”) Alan Feig (“Feig”), and Arthur DiLorenzo (“DiLorenzo”) ...
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DECISION ON ORDER DENYING SUMMARY JUDGMENT TO THE DEFENDANT AND GRANTING PARTIAL SUMMARY JUDGMENT TO THE PLAINTIFF AND GRANTING THE PLAINTIFF’S MOTION TO SET PRETRIAL 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....
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DECISION AND ORDER CAME ON for consideration the Debtor’s Motion to Redeem Tangible Personal Property with Lien. Upon consideration thereof, the court finds and concludes that Debt- or is permitted to redeem the tangible personal property at a value substantially equivalent to the price yielded by a commercially reasonable sale. BACKGROUND FACTS On April 2, 1990, Susan Waters (“...
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MEMORANDUM DECISION CAME ON for consideration the objection of Defendant Debtor to the nondis-chargeability claim asserted by Plaintiff. Upon consideration of the evidence presented, the arguments of counsel and the pleadings in the matter, the court enters this its decision and order. JURISDICTION This case involves the dischargeability of certain payments incident to a divorce decree. The...
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OPINION CAME ON for hearing the Motion of The Landing Associates, Ltd., for determination of the allowed secured claim of a secured creditor, United Savings Association of Texas, F.S.B., by determining the value of the secured creditor’s interest in the subject property pursuant to 11 U.S.C. § 506(a). At the hearing, this court requested supplemental briefs regarding the issues relating t...
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ORDER GRANTING MOTION TO COMPEL DEBTORS TO DELIVER PROPERTY TO THE ESTATE This decision addresses the issue whether income accruing to an individual debtor during the course of a chapter 11 bankruptcy from his operation of a service oriented sole proprietorship is property of the estate. The creditors assert that all income accruing to the debtor post-petition and pre-confirmation is prop...
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MEMORANDUM OPINION The matter before the Court in this Chapter 7 proceeding is Debtors’ (hereinafter, Cheripkas if jointly, Ronald or Michele if individually) Motion for Enforcement of Discharge and to Determine Dis-chargeability of Debt. Defendant, Republic Insurance Company (hereinafter, Republic), relies upon an Order of Court in Civil Action No. 85-0486, issued April 2, 1986 by the Un...
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*597 FINDINGS OF FACT AND CONCLUSIONS OF LAW ON OBJECTIONS TO DEBTOR’S CLAIM OF EXEMPTION This case was heard on August 21, 1990, upon objections of the following creditors to debtor’s claim of exemption. 1. Sun Bank/North Florida, National Association 2. The Sherburne Construction Company, Inc. 3. Mayport Riverview Associates 4. D.G. Granger. On the evid...
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ORDER SUSTAINING TRUSTEE’S OBJECTION TO CLAIM NUMBER 64 OF THE UNITED STATES TRUSTEE This case is before the Court upon the Chapter 7 trustee’s objection to claim number 64 of the United States Trustee. The trustee objected to the claim suggesting that it is estimated and unliquidated and, cannot be allowed under 11 U.S.C. § 502(c). The Court, sua sponte, raised the issue of whether ...
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Ruling Re: Motion to Dismiss The matter before the Court is a motion to dismiss filed by John Hancock Mutual Life Insurance Company (“John Hancock”). John Hancock alleges two grounds in support of its motion to dismiss. First, John Hancock argues that the Debtors do not qualify as family farmers for purposes of Chapter 12 relief. Secondly, it is alleged that the Debtors have filed their Chapt...
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MEMORANDUM OPINION This case is before the Court upon objection by the Federal Deposit Insurance Corporation (FDIC) to property claimed exempt by the debtor. Upon the evidence presented, the Court enters the following Memorandum Opinion: FACTS An involuntary petition in bankruptcy was filed against debtor on September 13, 1989, and order for relief was entered on October 17, 198...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOR THIS ADVERSARY PROCEEDING AND OBJECTION TO CLAIM NUMBER 26 John Woodrow Ross, plaintiff, filed this adversary proceeding to determine the dis-chargeability of tax debts pursuant to 11 U.S.C. § 523. Plaintiff also filed an objection to claim number 26 of the United States of America objecting to priority status and penalties attaching to the taxes at i...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, Chevy Chase Federal Savings Bank, filed a two count complaint against defendants, Joe Alan and Sandra Elaine Graham, seeking an exception to discharge of a debt pursuant to 11 U.S.C. § 523(a)(2)(A) and (B), and denial of the discharge pursuant to 11 U.S.C. § 727(a)(4) and (5). Trial of this adversary proceeding was held on August 1, 2, and 4, 1...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon complaint to determine the dis-chargeability of tax debts for the years 1978 through 1984 pursuant to 11 U.S.C. § 523(a)(1). At trial, the parties stipulated that tax liability for all years except 1978 and 1979 was discharged. Upon the evidence presented, the Court enters the following Findings of ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is pending on complaint suggesting that judgment of a Maryland state court is nondischargeable pursuant to 11 U.S.C. §§ 523(a)(2)(A), (4), and (6). A trial was held on July 3,1990, and upon the evidence presented the Court makes the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT Plaintiffs, while attend...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff, Valerie Hall, as trustee of the estate of Sun Spas By Schaeffer, Inc., filed a five count complaint against the defendants Carson Lee Schaeffer (“Carson”), Pamela Schaeffer (“Pamela”), and Kellie Lee Schaeffer (“Kellie”) alleging fraudulent transfer [11 U.S.C.A. § 548]; violation of the bulk transfer provisions of Florida Statutes [§§ 676.104-1...
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SUPPLEMENTAL DECISION This supplements the court’s oral decision of October 23, 1990, granting the defendants’ motion to dismiss the plaintiff’s complaint seeking a determination that the plaintiff’s claim is nondischargeable and, alternatively, revocation of the debtor’s discharge. The plaintiff challenges the belated amendment of the debtor’s schedules to list plaintiff as a creditor in the...
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OPINION This case came before me for hearing on several motions filed in the above-captioned adversary proceeding and a motion to lift the stay in the main case which is related to the subject matter of the complaint. Because the decision on the motions to dismiss and for summary judgment filed by certain defendants, namely the debtor, Leonard A. Cordelia and John D. Yursha, will moot or otherwis...
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MEMORANDUM OPINION On April 24, 1990, I heard the Chapter 7 Trustee’s Objection to Claims against the estate of Daystar of California, Inc. submitted by David Miller and Kodash, Inc. Trustee objected to both claims on the ground they were untimely filed three months after the bar date. Miller and Ko-dash, Inc. responded that the objection should be overruled, because prior to the deadline, they...
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MEMORANDUM OPINION Came on for consideration the Emergency Motions to Compel Debtor to Surrender Possession of Non-Residential Leasehold Premises and for Payment of Administrative Claim Filed by Movant, Meritbanc Savings Association (“Meritbanc”). After considering the pleadings and memoranda filed by counsel, the court makes the following findings of fact and conclusions of law and enters a se...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW To the extent any findings of fact herein are construed to be conclusions of law, they are hereby adopted as such. To the extent any conclusions of law herein are construed to be findings of fact, they are hereby adopted as such. 1. On March 14, 1983, Texas General Petroluem Corporation, the Debtor, filed a petition for relief under Chapter 11 ...
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MEMORANDUM OPINION Came on for consideration the Motion To Set Aside Default Judgment filed by Debt- or, Moses Muzquiz, Jr., and the Trustee’s Motion for Sanctions contained in his Response To Moses Muzquiz, Jr.’s Motion To Set Aside Default Judgment and after considering the pleadings and memoranda, the court makes the following findings of fact and conclusions of law and enters a separa...
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MEMORANDUM AND ORDER Came on for hearing, Debtor’s Notice of Subrogation, and after considering the pleadings, memoranda, arguments of counsel and the 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 be findings of f...
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MEMORANDUM OPINION Came on for trial July 16, 1990 plaintiffs Complaint to determine the dischargeability of a debt, and after considering the pleadings, evidence, memoranda and arguments of counsel, the court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith. To the extent any findings of fact herein are construed to be con...
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MEMORANDUM OPINION Came on for consideration the initial Application for Interim Compensation, Reimbursement of Expenses, and Limited Use of Cash Collateral, as amended, filed by Ronald J. Blask, the attorney for Debtor. After considering the pleadings, memoran-da, and arguments of counsel, the court makes the following findings of fact and conclusions of law and enters a separate Judgment in c...
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MEMORANDUM OPINION Trial was held on the Debtor’s Objection to Claim of the Internal Revenue Service as to withholding taxes claimed by Internal Revenue Service to be due from Debtor for the second, third and fourth quarters of 1987. Debtor does not deny that Johnson Travel Agency was in business before, during, and after the time period at issue, or that it had employees subject to withholding b...
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MEMORANDUM DECISION This matter concerns a motion for change of venue made by the New Jersey Department of Environmental Protection (“NJDEP”) pursuant to 28 U.S.C. 1408, 1412 and Bankruptcy Rule 1014(a). The *175United States Trustee for the Eastern District of New York joins NJDEP in requesting a change of venue. After a hearing held on December 11, 1990 and for the reasons stated below, this mot...
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MEMORANDUM OPINION Debtor MCorp has moved to Reject Lease/Contract with Tower Center Development Associates, Ltd. Partnership (“Tower Center”). Principal Mutual Life Insurance Company (“Principal Mutual”) opposes, claiming the agreement is not a lease or executory contract subject to rejection. After considering the evidence, briefs, and argument of counsel, the court concludes Principal ...
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MEMORANDUM OPINION Came on for consideration the Objection to Claim No. 1 of American Oilfield Exchange, Inc. (“American”) filed by the Debtor. American contends it is due a commission on the sale of an oil rig by Debtors to Petra Drilling Corporation on oral contract and quantum meruit theories. After considering the pleadings and memo-randa filed by counsel and the evidence adduced at trial, th...
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DECISION AND ORDER Before the Court for determination is the motion of the plaintiff, Richard Guimond, for summary judgment on his complaint in the within adversary proceeding, alleging nondischargeability under 11 U.S.C. *171 § 523(a). In support of his motion, the plaintiff relies upon the November 9, 1989 judgment of the United States District Court for the District of Rhode Island, in whi...
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DECISION AND ORDER Heard on December 6, 1990, on the application for emergency relief filed by the Chapter 11 Debtor, Donuts of Seekonk, Inc. In response, defendants Michael Pa-nagakos and 1200 Corporation, Ltd. have filed motions to: (1) dismiss the Chapter 11 petition, and (2) for relief from stay. At issue is the possession/occupancy of a “Dunkin Donuts” store in Seekonk, Massachusetts. Pr...
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DECISION ON MOTION TO OBTAIN ESCROWED FUNDS PROCEEDS, COMPENSATION FOR ATTORNEYS’ FEES AND REIMBURSEMENT OF COSTS This case involves a dispute with Simon-Tye Associates and 135 Ventures, Inc., (the “Third Mortgagee”) over a portion of the proceeds of the sale of the Philadelphia Centre Hotel (the “Hotel”), plus interest. At the closing of the sale of the Hotel, the Third Mortgagee was pai...
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MEMORANDUM OPINION Virginia Packaging Supply Company, Inc. (VPS), is a debtor in possession in a Chapter 11 case commenced by an involuntary Chapter 7 petition filed on December 31, 1989. The order for relief under Chapter 7 was entered on January 18, 1990, and order of conversion to Chapter 11 entered on March 16, 1990. The court held a hearing on April 13, 1990, on the debtor’s motion to ap...
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MEMORANDUM OPINION The plaintiff Robert C. Teates brought this dischargeability adversary proceeding against the debtor pursuant to 11 U.S.C. § 523(a)(2)(B). Trial was held on November 3, 1989, at which time the court also heard argument on the debtor’s motion for summary judgment. Following trial the parties have submitted briefs. In addition to the adversary proceeding, the court h...
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MEMORANDUM OF DECISION Defendant Charles Duck (“Duck”) is a former bankruptcy trustee who was convicted of embezzlement from various bankruptcy estates and is now incarcerated. Duck is also a debtor in this chapter 11 case in which a trustee has been appointed. Plaintiff Paul W. Dickinson (“Dickinson”) was a creditor in a chapter 11 case in which Duck served as a trustee (the “Borelli case”). I...
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MEMORANDUM OPINION Citizens Federal Bank (“Citizens”) filed a complaint against the chapter 11 debtor Cardian Mortgage Corporation (“Cardian”) seeking a turnover from Cardian in the amount of $643,759.11 plus interest, fees and costs. Both parties filed motions for summary judgment, and hearing on the motions was held on May 22, 1990. The court has considered the extensive memo-randa of l...
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DECISION AWARDING PETITIONING CREDITORS COMPENSATION Are petitioning creditors entitled to have their attorneys’ expenses and fees reimbursed from the estate when the debtor voluntarily files for relief under Chapter 11 of the Bankruptcy Code (the Code) prior to trial on the involuntary petition? Traub, Bonacquist, Yellen & Fox (TBY & F), the law firm representing the petitioning creditor...
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MEMORANDUM OPINION The court held trial on the plaintiffs’ complaint to except from discharge pursuant to 11 U.S.C. § 523(a)(2) an indebtedness evidenced by a promissory note. The complaint relied upon both § 523(a)(2)(A) and (B); however, at trial plaintiffs limited their case to § 523(a)(2)(A). Also, although the debtor defendant’s answer alleged a counterclaim against the plaintiffs based upon ...
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MEMORANDUM OPINION ON CLASS PLAINTIFFS’ MOTION TO CERTIFY CLASS AND FOR AUTHORIZATION TO FILE CLASS PROOF OF CLAIM Class Plaintiffs consist of twelve persons who obtained certification of a class in their action against Debtor Tom Livaditis (“Debtor”) in the District Court for the Northern District of Illinois (the “District Court”). Class Plaintiffs have now moved for certification of th...
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OPINION The Debtors, Harold E. Rubin (“Rubin”) and Marvin J. Nadler (“Nadler”), seek to exclude from their bankruptcy estates their benefits under the pension plan of Halmar Distributors, Inc. (“Halmar”). Alternatively, if the benefits are included in the estates in the first instance, the Debtors contend that they are entirely exempt as “reasonably necessary ... for support” within the m...
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MEMORANDUM DECISION AND ORDER Thomas and Peggy Whitelock (White-locks), the debtors in this chapter 13 case, sought confirmation of a plan providing full payment plus interest of a specially classified cosigned unsecured claim. Non-cosigned unsecured claimants were to receive a thirty percent dividend on their claims. Barbara W. Richman (Richman), the Standing Chapter 13 Trustee, objected...
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MEMORANDUM OPINION AND ORDER Plaintiff brings this action against the Debtor Defendant for determination as to the dischargeability of particular debts pursuant to 11 U.S.C. § 523(a)(5). The parties stipulate that this Court has jurisdiction of the subject matter and of the parties, pursuant to 28 U.S.C. § 1354 and § 157 and that this is a core proceeding. The sole issue remaining to be decided b...
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MEMORANDUM OP DECISION The court has been requested by the firm of Roetzel & Andress (R & A), counsel for the Chapter 11 Trustee, 1 to award compensation at the full hourly rate for travel time. R & A has submitted eight interim fee applications in each of these cases. The U.S. Trustee (Trustee), has consistently objected to R & A’s billing of travel time at counsel’s full hour...
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MEMORANDUM OF DECISION The court is presented with a motion for use of cash collateral filed by the debtor and debtor in possession, Graham Square, Inc. The debtor seeks to use the rental income secured to The Union National Bank of Pittsburgh (UNB) and The Central Trust Company of Northeastern Ohio (Central Trust) to operate its business as it attempts to reorganize. Both UNB and Central Trust...
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ACTION A motion to dismiss the Chapter 7 bankruptcy petition of Ronald and Rhonda Harris (“Ronald”, “Rhonda” or together as the “Debtors”) on grounds of substantial abuse is before the Court. For reasons articulated below, the Court concludes that the Debtors’ circumstance does not warrant dismissal under 11 U.S.C. § 707(b). The instant matter is a core proceeding pursuant to 28 U.S.C. § 157(b)...
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MEMORANDUM OF DECISION RE: COMPENSATION OF COUNSEL The court is asked to award compensation, pursuant to 11 U.S.C. § 330, to John B. Wirtz, former counsel for the debtors in possession. Mr. Wirtz initially applied for compensation on July 14, 1989. Although not specifically so stated, it is obvious that he was at that time seeking interim compensation pursuant to 11 U.S.C. § 331. The Unit...
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MEMORANDUM DECISION ACTION A case of first impression as to whether a warranty deed in escrow agreement may be given equitable adjustment considerations accorded an executory contract under South Dakota law, is before the Court. For reasons articulated below, the Court concludes that a deed in escrow is entitled to equitable adjustment treatment under South Dakota law. Restitution to...
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AMENDED MEMORANDUM ' OF OPINION The matter before the Court is upon the Complaint of the plaintiff, Herbert Spilka, for a determination that his claim against the debtors is nondisehargeable under 11 U.S.C. § 523(a)(3). Trial in the matter was held on November 16, 1989 and the decision taken under submission. The following shall constitute Findings of Fact and Conclusions of Law pursuant ...
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MEMORANDUM OF DECISION This matter comes before the court on trustee’s complaint to determine liens. The parties have filed factual stipulations, stipulations of admissibility of exhibits, and trial briefs. The case has been submitted on the stipulated record. Background Good Ship Appledore, Ltd., filed its Chapter 7 petition in bankruptcy on March 21, 1988. William H. Howis...
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DECISION The Indiana legislature has exercised the option it received from Congress to opt out of the Federal Bankruptcy exemptions. See, 11 U.S.C. § 522(b)(1); I.C. 34-2-28-0.5. Among the various exemptions created by Indiana law is one which is available only in the event of bankruptcy. Pursuant to I.C. 34-2-28-l(a)(5), an Indiana resident may exempt: *352 Any i...
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DECISION The cross motions for summary judgment require this court to decide when Park Bank’s claim against the debtor, arising out of a guaranty of a $168,000 loan, became secured by a mortgage on certain real estate owned by the debtor. If Park Bank’s claim obtained secured status on June 12, 1989, when the debtor executed a consolidated note to Park Bank, the transaction is a preferent...
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ORDER ON ORDER TO SHOW CAUSE THE MATTER under consideration is an Order to Show Cause directed to O. Sanford Jasper as Tax Collector of Pinellas County, and Robert Joseph, his employee (collectively referred to as the Tax Collector). The Order to Show Cause is based on an application filed by Chief Charley’s, Inc. (Debtor), alleging the Tax Collector is in violation of the automatic stay ...
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MEMORANDUM OPINION Trial was held on the trustee’s complaint to set aside prepetition transfers of money by the debtor to the defendant. The complaint alleged the debtor had made both preferential transfers, avoidable under 11 U.S.C. § 547, and fraudulent transfers, avoidable under 11 U.S.C. § 548. At the conclusion of trial the Court orally stated findings of fact and conclusions of law, *499...
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OPINION ON DEBTORS’ PETITION TO ALLOW PAYMENT OF INSURANCE PROCEEDS This matter is before the Court on the petition of the Debtors to assume a purported executory contract for the sale of a mobile home and to use a portion of certain insurance proceeds to complete the contract. The two legal issues to be decided are whether the Court has jurisdiction to act on the Debtors’ petition pending an a...
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MEMORANDUM OPINION This matter came on for hearing on motion of Selma Community Builders, Incorporated, Movant, for payment of an administrative expense by the Debtor, Leon’s Casuals Company, Incorporated. Appearing were Irvin Grodsky, Attorney for the Debtor, and Robert R. Blair, Attorney for the Movant. After due deliberation on counsels’ arguments, stipulations of fact, and briefs subs...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case arises from the objection of debtor Apex Oil Company (“Apex”) to the claim of the United States Customs Service (“Customs”). The issues in this case are derived from the importation of petroleum products and a dispute as to their country of origin. This case presents two issues: 1) Whether this Court has and should exercise jurisdic...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case involves issues arising from a confirmation hearing of the First Amended and Restated Plan of Reorganization (the “Plan”) filed by a group of six persons (the “Proponents”) 1 . During a hearing on November 29,1990, the parties, by agreement, presented only their arguments on all questions of law relating to plan confirmat...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came before the court on July 23, 1990 on the complaint of T.R.C., Inc. for non-dischargeability of a debt in accordance with 11 U.S.C. § 523(a)(6). The debt was an award against the debtor in the Maryland Circuit Court for tortious interference with TRC’s contract with the Ta-Yang Yacht Building Company. This award included punitive damages and ...
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OPINION Before the Court is a motion for summary judgment filed by the plaintiff, Nassau *651 Suffolk Limousine Association, Inc. (“Nassau Suffolk”) in this adversary proceeding against the debtor, Adam C. Jardula. Nassau Suffolk is contesting the dischargeability of the debt owed it, listed in Schedule A-3 of the debtor’s bankruptcy petition in the amount of $16,846.41. Jard...
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DECISION This matter is before the court on a motion to dismiss. The motion has been filed on behalf of the Area Five Counsel on Aging and Cincinnati Insurance Company. Movants claim the debtor is not eligible for relief under Chapter 13 because his noncon-tingent, liquidated, unsecured debts exceed $100,000.00. Relief under Chapter 13 of the Bankruptcy Code is restricted to individu...
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MEMORANDUM DECISION ON COUNT I FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause came on for trial before the Court on the 12th and 13th days of October, 1989, upon Count I of Plaintiffs Second Amended Complaint which seeks this Court to declare that CAPITAL FACTORS, INC. was the alter ego of CAPITAL BANK, the instrumentality of CAPITAL BANK, an agent for CAPITAL BANK, a partner of CAPITAL B...
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ORDER DENYING REHEARING This matter came on before the court on the debtor’s motion for reconsideration of an order dismissing this case for failure of the debtor to appear at the first meeting of creditors. After due consideration of the arguments and representations of counsel, the court finds as follows: The trustee’s report of the first meeting indicates that the debtor’s counsel was present a...
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MEMORANDUM OPINION APPROVING APPLICATION FOR ATTORNEYS’ FEES FOR COUNSEL FOR CREDITOR PURSUANT TO 11 U.S.C. SECTION 503(b) THIS MATTER came before the Court on August 27, 1990 upon the Application for compensation of ARTHUR C. NEI-WIRTH, ESQUIRE, counsel for the Creditors Larry and Roslyn Tromer pursuant to 11 U.S.C. Section 503(b). The Application of Attorney Neiwirth requests this Court to aw...
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*112FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came on for trial before the Court on August 14, September 20, and October 23, 1990. The Court has examined the evidence and considered the testimony presented, observed the candor and demeanor of the witnesses, considered the arguments of counsel, and being otherwise duly advised in the premises, does hereby make the following findings of fac...
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ORDER ON DEBTOR’S MOTION TO REJECT BIDS This cause came on before the court on August 30, 1990, on the Debtors’ Motion to Amend Report of Auction Sales and Motion to Confirm and Reject Bids. Debtors sought to amend their report of the per acre price of the bid of Mauricio Gluck for Parcel # 5, Tract 4, from their reported value of $14,000 per acre to the true bid value of $6,800 per acre,...
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MEMORANDUM OF DECISION A-I Credit Corporation (“A-I”) has moved for summary judgment seeking a determination that it is entitled to funds held by the trustee on account of a refund of unearned insurance premiums under policies previously insuring the Debtor, Big Squaw Mountain Corp. (“Big Squaw”). A-I claims an ongoing security interest in those funds by virtue of a premium financing agre...
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MEMORANDUM OPINION Before the Court is a document titled “Motion' For Reconsideration Of Claim Of Jeffrey Mondell Which Was Denied Without Notice and Hearing” in which claimant seeks to have vacated an order subordinating his priority claim for unpaid wages to the claims of other unsecured creditors. Mondell contends that his right to procedural due process was violated in that...
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MEMORANDUM OPINION Before the Court is an objection by the chapter 7 trustee to an exemption claimed by debtors. The trustee seeks to have vacated an order of this court granting debtors leave to amend Schedule B-4 of their bankruptcy petition or, alternatively, to have the court determine that debtors are not entitled to exempt certain shares of stock. The trustee contends that debtors are n...
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ORDER On August 10, 1988, E.I. Parks No. 1 Limited Partnership (debtor) filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. A confirmation hearing on the first proposed plan of reorganization was held on July 13 and 14, 1989, and confirmation was denied. The debtor filed an amended proposed plan of reorganization on August 7, 1989...
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ORDER On December 12, 1989, the trustee 1 for the estate of Herbert E. Russell (the estate) filed this adversary proceeding, seeking a declaratory judgment and a turnover order, against Couch Dennis; Bonnie Dennis; Sandra King, Executrix of the Estate of Howard Meek, Deceased; Raymond Pittman; Helen Pittman; Virgil Lewis; and Jerry Minor Lewis (defendants). The complaint allege...
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ORDER This matter is before the court on the motion of the Internal Revenue Service (IRS) to dismiss the above-styled adversary proceeding. In response to the IRS’s motion, Debtor filed a motion to amend the complaint and filed a response opposing the motion to dismiss. For the reasons set forth below, Debtor’s motion to amend is granted and the IRS’s motion to dismiss is granted. Th...
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MEMORANDUM OPINION This adversary proceeding concerns the validity and extent of a certain lien held by the defendant on the residence of the plaintiffs pursuant to '§ 506(d) of the Bankruptcy Code. More specifically it involves the question of whether a chapter 7 debtor can use § 506(d) to value the real property supporting a mortgage debt and have the secured claim reduced to the value ...
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ORDER On April 24, 1990, James Wise filed a voluntary petition for relief under the provisions of chapter 13 of the United States Bankruptcy Code. The debtor’s schedules listed the IRS as an unsecured creditor, without priority, with a claim of $12,959.21. On June 8, 1990, the United States of America, on behalf of the Internal Revenue Service (IRS), filed a proof of claim in the amount o...
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MEMORANDUM OPINION This opinion concerns whether to grant the creditor Mitsubishi Electronics America, Inc.’s (“MELA”) Motion for Relief from the Automatic Stay so as to Permit Arbitration to Proceed. This Court has jurisdiction under 28 U.S.C. § 157(b)(2)(B), and the general reference order dated February 11, 1985 by the U.S. District Court for New Hampshire. PROCEDURAL HISTORY ...
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ORDER GRANTING MOTION TO LIFT STAY On the 21st day of June, 1990, came on for hearing the Motion Requesting Relief from Stay filed by NCNB Texas National Bank by and through its attorney of record, Haynes and Boone and Response to said Motion filed by Debtor, Brighton Company, by and through its attorney or record, Truman & Spicer, in the above-styled and numbered case. The Court reserved ruling,...
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MEMORANDUM OPINION AND ORDER The debtor, 1880 Superfine Lane, Inc., is a 45-unit condominium complex. It filed a Chapter 11 case on May 13, 1987, and succeeded in having a plan confirmed on September 30, 1987. On October 14, 1989, its remaining nine units were sold at auction. This contested matter concerns a dispute as to whether 1880 Superfine Lane Condominium Council is entitled to any of the p...
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OPINION 1 At the hearing held December 6 and December 8, 1990 on confirmation of the Amended Joint Plan of Reorganization (“Plan”) for Wheeling-Pittsburgh Steel Corporation, Et A1 (“Debtor”), the only remaining unresolved objections to confirmation of the Plan were those filed by: (a) U.S. Environmental Protection Agency (EPA) (b) U.S. Economic Development Administration and Shawmut Bank ...
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MEMORANDUM OPINION AND ORDER Alfred J. Lindh, the attorney for debtor’s ex-wife, filed a complaint asking the court to determine whether an award of attorney’s fees arising from a matrimonial action constituted an exception to discharge under 11 U.S.C. § 523(a)(5). The following *13 is the court’s findings of fact and conclusions of law. On January 27, 1987, Paul A. and Jo Ellen Brenegan we...
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MEMORANDUM OPINION JJ’s Home Style Laundry, Inc., and Gil-lom Smith, Jr., are debtors in possession in chapter 11 cases consolidated by order entered on April 2, 1990. In this contested matter, Viking Credit Corporation (Viking) filed a motion for relief from the automatic stay. Final hearing on the motion was held on October 22, 1990, and the court took the matter under advisement. ...
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*29 MEMORANDUM OPINION This case deals with a complaint brought by the trustee, Keith L. Phillips, seeking turnover of certain shares of stock held by the defendant, Thelma C. Smith. It comes before the court on motion for summary judgment and order approving replacement lien. After considering argument by counsel in the memoranda filed and at a hearing on September 12, 1990, thi...
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MEMORANDUM OPINION The plaintiff, Adel H. Bulman, seeks to determine the dischargeability under 11 U.S.C. § 523(a)(5) of awards made in her favor in a decree of divorce from the debt- or, Vincent Page Bulman. This adversary proceeding comes before the court on cross motions for summary judgment as to a lump sum award by the divorce court and an award for attorney’s fees and court costs. T...
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ORDER ON MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 7 liquidation case, and the matters under consideration are two Motions for Summary Judgment. One is filed by Charles L. Weissing, Trustee (Trustee), the Plaintiff, and the other by American Residential Elevators, Inc. (American Residential), one of the named Defendants in the above-captioned adversary proceeding. The Trustee in his ...
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ORDER ON DEBTOR’S MOTION FOR SUMMARY JUDGMENT THIS IS an involuntary Chapter 7 liquidation case and the matter under consideration is the Debtor’s Motion for Summary Judgment. It is the contention of the Debtor that there are no genuine issues of material facts, and that the Debtor is entitled to a judgment in his favor as a matter of law dismissing with prejudice the involuntary Petition...
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ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY, OR IN THE ALTERNATIVE, ADEQUATE PROTECTION THIS IS a Chapter 11 case, and the matter under consideration is a “Motion To Lift *606 Stay or for the Provision of Adequate Security” [sic], treated as a Motion for Relief from Automatic Stay, or in the Alternative, for Adequate Protection, filed by Pennsylvania House, Inc. (Pennsylva...
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ORDER This matter is before the court on the Trustee’s objection to the claim of HFC Commercial Realty, Inc. (“HFC”) and on HFC’s motion to require final accounting and release of cash collateral. Hearing on HFC’s motion was held June 7, 1990, and both Debtor and HFC filed post-hearing briefs. By order entered June 21, 1990, Debtor’s case was converted to Chapter 7 and a trustee was appointed. ...
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ORDER ON MOTION TO INTERVENE One of the most crucial aspects of this Chapter 11 reorganization case is a claim asserted by Christopher Urda (Urda), which was joined later on by the United States of *773 America (Government). This civil suit styled, “United States of America ex rel. Taxpayers Against Fraud and Christopher Urda v. Link Flight Simulation Corporation, CAE-Link Corporation and Sin...
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ORDER This matter is before the court on the motion of Vincent J. Scott to disqualify the court for bias, to stay the proceedings and to strike the testimony of R.W. Whisman. For the reasons set forth below, Debtor’s motions are denied. Pursuant to 28 U.S.C. § 144, whenever a party to any proceeding makes and files a timely and sufficient affidavit that the judge before whom the matter is pending ...
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*224 OPINION The matter before this court is a motion filed on September 28, 1989 on behalf of creditor General Motors Acceptance Corporation (“GMAC” or “Creditor”) to compel the debtors to assume or reject an unexpired lease. The motion seeks inter alia an order compelling debtors to assume or reject a lease for a 1987 Buick Century automobile, vehicle identification ...
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DECISION AND ORDER Heard on the motion of the Chapter 11 debtor, Broad Sound Park Associates, to establish the market value of Debtor’s property in the City of Revere, Massachusetts, for tax purposes, for the years 1987-1990, pursuant to 11 U.S.C. § 505. At the urgent request of the Debtor (and with the consent of the City of Revere), because of the necessity to provide a judicial determination of...
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*980 OPINION AND ORDER GRANTING EXTENSION OF DEBTOR’S EXCLUSIVE TIME AND DENYING APPLICATION FOR EMPLOYMENT OF TGI FINANCIAL, INC. This matter came on for hearing upon Debtor’s motion for extension of Debtor’s exclusive time to obtain acceptance of plan, to which objections were filed by the Scarborough Group and the Unsecured Creditors’ Committee and upon Debtor’s application fo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objection filed by Fadel Elbadramany, a creditor, to property claimed exempt by the debtor. Upon the evidence presented, the Court makes the following findings of fact and conclusions of law: FACTS 1. Robert Douglas Stanley (debtor) and Ardyth Ann Stanley were husband and wife at all relevant times. 2. On Octob...
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MEMORANDUM This is an action to determine the validity, priority or extent of a lien in $3,917.02 of proceeds from the sale of corn. The defendant, Bank of Brainard, holds possession of the funds which plaintiff, debtor, asserts should be turned over to him. The parties have submitted this matter to the court for decision upon a stipulation of facts. Debtor filed a bankruptcy case un...
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MEMORANDUM This is an action by the debtor, Milo Smith, to determine the validity, priority or extent of the defendant, Ruthelma Smith’s interest in payments to be made under a land sale contract. Her interest, which was obtained in connection with her divorce from the debtor, is also sought to be avoided under 11 U.S.C. § 544. The parties have submitted this matter to the court for decision upon ...
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MEMORANDUM In its Motion for Relief from Stay or Adequate Protection (Fil. # 15), plaintiff, Barry J. Nelson, d/b/a B.J. Nelson Transportation, seeks relief respecting two trailers which plaintiff sold to debtor under an oral contract. Plaintiff retained title to the trailers to secure payment of the purchase price. Plaintiff is the registered owner of the trailers on the certificates of ...
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MEMORANDUM OPINION The matter presently before this court is the Municipal Authority of the City of Monongahela and the City of Monongahela’s Motion To Dismiss The Debtor’s Petition As Improperly Filed. The motion is granted and the petition is dismissed. I. FACTS Carroll Township Authority (hereinafter “CTA”) was organized under the Municipality Authorities Act of 1945. 53...
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ORDER DENYING CONFIRMATION OF DEBTOR’S SECOND AMENDED PLAN In this Chapter 13 case the debtor proposes to satisfy his ex-wife’s claim by transferring to her a portion, but not all, of the property upon which she claims a security interest. Since I find that such treatment violates Section 1325(a)(5) of the Bankruptcy Code, confirmation of the debt- or’s Second Amended Chapter 13 Plan is denied....
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OPINION I. Introduction Presently before the court, on remand from the District Court, is the application of Frank Cirillo, debtor herein, for a permanent injunction restraining Tice Entertainment, Inc. (“Tice”) and Mark Levine from proceeding against Cirillo in a state court contract action. In accordance with the opinion and order of the District Court, this court has determine...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING HEARING ON MOTION OF RODNEY HUNT FOR RECONSIDERATION OF ORDER DISALLOWING HIS CLAIM. Following trial before the Court and considering the evidence and argument of counsel on the Motion of Rodney Hunt for reconsideration of the Order entered March 16, 1988 disallowing his claim, and for leave to file his late claim, the Court now makes and ...
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*397 MEMORANDUM OPINION ON MOTIONS FOR SUMMARY JUDGMENT Pasada Del Rey (“Plaintiff” or “Partnership”) and Robert B. Pearson (“Defendant” or “Debtor”) both filed motions for summary judgment. Defendant alternatively moved for partial summary judgment. The undisputed facts are as follows: Defendant filed his voluntary petition for relief under Chapter 7 of Title 11 of the...
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*550 MEMORANDUM OPINION ON MODIFICATION OF 11 U.S.C. § 1322(b)(2) CLAIM PURSUANT TO 11 U.S.C. § 506 On September 18, 1990, the Court heard the Motion for Default Judgment filed by Ralph W. Boullion and Ann Elaine Boullion (“Debtors”) against Franklin D. Sapp and Gail C. Sapp (“Defendants”). The Defendants did not appear. Upon the evidence adduced at the hearing, the pleadings of the Debtors, ...
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MEMORANDUM AND ORDER This adversary proceeding arises by Complaint of. the Chapter 7 Trustee challenging the extent and validity of Norwest Bank Minnesota, N.A. (Norwest) right to a lien in post-petition collateral arising by virtue of a stipulation for use of cash collateral. The Complaint, filed on January 31, 1990, and as amended on May 21, 1990, sets forth three separate theories only...
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DECISION AND ORDER INTRODUCTION Cablevision Systems Corporation, et al. (hereafter “Plaintiffs”) instituted the instant adversary proceeding seeking a determination from this Court that a debt evidenced by a judgment entered against the Debtor for violations of 47 U.S.C. § 553, the “Cable Act”, is non-dischargea-ble as a willful malicious injury pursuant to § 523(a)(6) of ...
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MEMORANDUM This matter comes before the court upon Motion to Dismiss and Request for Expedited Hearing by Production Credit Association of the Midlands (the “PCA”) (Fil. #7), Motion to Dismiss and Request for Expedited Hearing by Wauneta Falls Bank (Fil. # 14), and Application for Judgment in the Event of Dismissal by the United States Trustee (Fil. # 20). The debtors were in a previous Chapter 1...
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OPINION AND ORDER GRANTING PAYMENT OF SECURED CLAIM, INTERIM COMPENSATION OF TRUSTEE AND COMPENSATION OF ATTORNEY FOR TRUSTEE This matter came on for hearing upon the joint motion by NBD Business Finance, Inc. and trustee for authority to pay secured claim; application for interim compensation of trustee; and application for compensation as attorney for trustee to which objections have be...
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MEMORANDUM The Treasurer of Harlan County, Nebraska, as the holder of a secured claim for county real estate taxes, objects to debtors’ Chapter 12 plan because it proposes to pay the tax claim over thirty (30) years at a rate of interest less than that required under Nebraska law. As my prior decision in In re Davison, 106 B.R. 1021 (Bankr.D. Neb.1989) is to be reconsidered, amicus briefs wer...
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OPINION The Debtor is moving to reopen this closed Chapter 7 proceeding in order to reduce and avoid, pursuant to 11 U.S.C. § 522(f), two judgment liens of The Bank of Smithtown (“Smithtown”) on his residence. 11 U.S.C. § 522(f) authorizes a debtor to avoid judicial liens that impair the debtor’s exemption. The debtor claims that Smithtown’s liens impair his homestead exemption. Smithtown...
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MEMORANDUM This Chapter 13 case is before the court for consideration of the Trustee’s Objection to the Third Amended Plan (Fil. # 25). The dispute involves calculations of the trustee’s ten percent (10%) fee under 28 U.S.C. § 586(e)(2), which provides: Such individual (a chapter 12 or 13 standing trustee) shall collect such percentage fee from all payments received by such individual under...
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AMENDED MEMORANDUM OPINION ON DEBTORS’ OBJECTION TO CLAIM OF UNION FEDERAL SAVINGS BANK Union Federal Savings Bank (“Bank”), assignee of Waterfield Financial Corporation, argues that it is entitled to an unsecured claim for attorney fees incurred pre-petition when it commenced mortgage foreclosure proceedings on the Debtors’ home. The issue here is whether the parties’ pre-petition agreem...
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MEMORANDUM AND ORDER Before the court is an Application For Interim Fees And Expenses filed by the Debtor’s counsel, Moss & Barnett, brought pursuant to sections 330 and 331 of the Bankruptcy Code. The Application, filed November 9, 1990, requests interim fees of $122,382.85 for 925.15 hours of legal services provided the Debtor for the period July 17,1990 through October 31, 1990 in...
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DECISION This case involves the common but unfortunate combination of bankruptcy and divorce. The facts are undisputed and both parties agree that it can be decided on summary judgment. Bankruptcy Rule 7056. This is a core proceeding under 28 U.S.C. § 157(b)(2). The debtor, former husband of the defendant, filed this adversary proceeding to determine the dischargeability of an award of a port...
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MEMORANDUM OPINION RE: DEBTORS’ ELIGIBILITY FOR CHAPTER 12 RELIEF Onalee Kervin and Cozette McCormick (the “Creditors”), creditors of Otto R. Voelker and Anita C. Voelker (the “Debtors”), filed a Motion to Dismiss the Debtors’ Chapter 12 case pursuant to § 1208(c) on the ground that the Debtors are not family farmers and are therefore ineligible for Chapter 12 relief. After a hearing, the...
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The plaintiff, Bank of India (hereinafter “the Bank” or “Plaintiff”) moves for summary judgment pursuant to Fed.R.Civ.P. 56, made applicable to this proceeding by Bankruptcy Rule 7056, denying the debtor Moti Sapru (hereinafter “the Debtor”) his discharge pursuant to 11 U.S.C. § 727(a)(4)(A). The Debtor cross-moves for summary judgment to dismiss the Plaintiffs complaint for failure to state a ...
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MEMORANDUM ORDER AUTHORIZING EMPLOYMENT OF PROFESSIONAL PERSONS The above-entitled matter came on for hearing before the undersigned on the 13th day of November, 1990 on applications of the debtor in possession (the “Debtor”) un *840 der 11 U.S.C. § 327(a) for orders authorizing it to employ Michael LeBaron and Lar-kin, Hoffman, Daly & Lindgren, Ltd. as its attorneys and Buan...
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ORDER GRANTING TRUSTEES’ MOTIONS FOR SUMMARY JUDGMENT THESE Chapter 7 cases came on for hearing on June 25, 1990, of the motions for summary judgment filed by the trustees in the contested matters begun when the trustees objected to the debtors’ claims of exemption. Debtor Rosenquist and debtor Kenneth Hartón are both eligible participants in the 1988 Harris Corporation Retirement Pl...
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124 B.R. 5 (1990) In re R. Bruce REEVES, Debtor. BAMCO 18, Plaintiff, v. R. Bruce REEVES, Defendant. Bankruptcy No. 89-498, Adv No. 90-1026. United States Bankruptcy Court, D. New Hampshire. November 21, 1990. *6 Nathan T. Foose, Gray, Wendell & Clark, Manchester, N.H., for R. Bruce Reeves. Sharon C. Boyle, Sheehan, Phinney, et al., Manchester, N.H., for BAMCO 18. MEMORANDUM OPINION JAMES E....
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ORDER On November 14, 1988, J.W. Gore and Judy Gore filed a voluntary petition for relief under the provisions of chapter 12 of the United States Bankruptcy Code. Confirmation of the debtors’ first proposed plan of reorganization was denied on December 21, 1989, 113 B.R. 504. The Gores filed a second amended plan on February 21, 1990. A confirmation hearing was held on March 26, 1990, and...
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OPINION AND ORDER ON OBJECTION OF RESOLUTION TRUST CORPORATION AS CONSERVATOR OF COMMONWEALTH FEDERAL SAVINGS AND LOAN TO DEBTOR'S USE OF CASH OR RENTS GENERATED BY THE PROPERTY OWNED BY THE DEBTOR I. PRELIMINARY CONSIDERATIONS AND JURISDICTIONAL STATEMENT This matter is before the Court upon an objection (the “Objection”) by Resolution *254 Trust Corporation as Conservator of Commonwealth ...
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OPINION AND ORDER ON FEE APPLICATION OF ATTORNEYS FOR DEBTORS This matter is before the Court upon an application by counsel for the debtors for a final allowance of compensation for services and reimbursement for expenses. Sara J. Daneman, the Chapter 7 trustee (“Trustee”) and the United States of America, Small Business Administration (“SBA”), objected to the application and the matter ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on Objection to Trustee’s Intention to Compromise Objection to Claim of Hall-Toledo, Inc. 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 testimony, and other evidence presented, and the wr...
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*777MEMORANDUM OPINION AND ORDER This cause comes before the Court on Plaintiffs Complaint requesting that the Defendant be denied a discharge in bankruptcy and/or it be determined that certain alimony obligations be declared nondis-chargeable. A pre-trial was held on the complaint and a trial date was scheduled. This date was subsequently vacated and the parties have agreed to submit only the iss...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Debtor’s Memorandum in Support of Disal-lowance of Post-Petition Interest on Unsecured Claim of United States of America, Internal Revenue Service. No written arguments were filed by the Internal Revenue Service. The Court has reviewed the Debtor’s Memorandum, as well as the entire record in this case. Based on that review, a...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after a Continued Show Cause Hearing on Why Donnerberg T.V.’s Motion Should Not Be Dismissed for Failure to Prosecute and Hearing on Motion of Debtors’ for Certificate of Contempt. The Court has reviewed the evidence, as well as the entire record in this case. Based on that review, and for the following reasons, the Court finds that Do...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on Claimants’ Objection to the Trustee’s Final Determination of their customer claim. The Trustee has filed a Counterclaim seeking approval of the Motion to Confirm the Determination of the Claim of John and Mary Brauninger. A preliminary Hearing on the Motion was held. At the Hearing, both parties had the opportunity to prese...
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*43 MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Cross-Motions for Summary Judgment filed by the Trustee and the Defendants, Patrick and Sandra Wagener. The Court has reviewed the exhibits and the written arguments of counsel, as well as the entire record in this case. Based on that review, and for the following reasons, The Court finds that the Trustee’s...
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ORDER This cause comes before the Court on the parties Cross Motions for Summary Judg *772 ment. A Pre-Trial was held on the Debt- or’s Complaint for Violation of Bankruptcy Discharge and the parties agreed to submit this matter to the Court upon the record and the written arguments of counsel. The Court has reviewed the exhibits and the written arguments of counsel, as well as the entire rec...
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*51MEMORANDUM OPINION AND ORDER This cause comes before the Court on Plaintiff’s Complaint requesting damages for Defendant’s violation of Stay. The Defendant filed a Motion for Summary Judgment and Memorandum in Support as well as a Motion to Stay Response to Interrogatories. A Hearing was held on the Motion to Stay. The Court granted the Motion to Stay. Subsequently, the Court has reviewed the M...
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DECISION GRANTING JUDGMENT TO DEFENDANT HIGHER EDUCATION ASSISTANCE FOUNDATION This matter has been submitted to the court for decision on the basis of a stipulation of facts and legal memoranda of the parties. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(I...
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MEMORANDUM DECISION This matter comes before the court on a complaint to determine dischargeability of a debt pursuant to 11 U.S.C. § 523(a)(6), filed by American Honda Finance Corporation against Robert T. Grier. Based upon the pleadings, documents, and the transcript of a trial, as well as the respective memoranda of law submitted by the parties, the court having considered same hereby ...
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MEMORANDUM The instant adversary proceeding is a sequel to an earlier proceeding arising out of this same bankruptcy case and involving the same parties. The decision of May 31, 1990, dismissing the earlier proceeding is reported at 114 B.R. 434 (cited herein as “Evans /”). In Evans I, we held that LOUISE EVANS, the Debtor in this individual Chapter 13 bankruptcy cas...
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DECISION AND ORDER Heard on May 22, 23, 24, June 21 and 22, 1990, on the Motion of the Debtor 1 to “Strike Report [Number Two] of Examiner as a Sham and Deception upon this Court”. The examiner, Michael Weingarten, and Eastland Bank, the largest secured creditor, both oppose the motion. Also heard and taken under advisement was the Motion of John Boyajian, Esq., to Withdraw as ...
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ORDER AND NOW, this 14th day of November, 1990, upon receipt of the Defendant’s timely withdrawal of its Proof of Claim and upon consideration of the Plaintiffs’ Motion to Alter or Amend Judgment and/or to Reopen the Record (“the Motion”), it is hereby ORDERED as follows: 1. The Motion is DENIED. Our prior decision, at 114 B.R. 434 (Bankr.E.D.Pa. 1990), never held without reservation (“probably”) ...
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MEMORANDUM OPINION Before the Court are two motions by Attorney Allen N. Brunwasser (hereinafter “Brunwasser”) filed on behalf of the Debtors, to-wit: 1) Motion To Remove K. Lawrence Kemp As Trustee and Kemp & Kemp, Esquires From These Cases (filed at Motion No. 89-7873M); and 2) Motion To Recuse Judge Bernard Markovitz. Also before the Court is the Trustee’s ...
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MEMORANDUM OPINION AND ORDER INTRODUCTION On November 28, 1989, trustee John Y. LaBarge (hereinafter the “Trustee”) filed his Motion to Clarify, Allow & Pay Claims (hereinafter the “Motion”), in which he objects to the payment of post-petition interest on a home loan arrearage owed to Community Federal Savings and Loan Association (hereinafter “Community Federal”). Community Federal, holder of a ...
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MEMORANDUM OPINION This matter comes before the Court on the Debtor’s Application for Final Decree. Attorney Gary C. Flanders represents the Debtor, Mold Makers, Inc. Attorney Sheree L. Gowee represents the United States Trustee (Trustee). BACKGROUND On November 23, 1988, the Debtor filed a Voluntary Petition for bankruptcy relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101-13...
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ORDER Pending in this Chapter 7 case is a Petition For Employment of Paralegal by the Trustee. On July 17, 1990, the Court entered an Order employing the law firm of Alexander, Baucus & Linnell, P.C. as attorneys for the Trustee. The pending Petition states that Linda C. Walsh and James Romenesko are employees of the above law firm as paralegals/legal assistants and that it is the pr...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This matter is before the Court on the Debtors’ Objection to the Claim of the Internal Revenue Service of the United States of America (hereinafter the “IRS”). The Court is called upon to determine whether the IRS may amend a claim filed on its behalf by the Debtors after the claims bar date. JURISDICTION This Court has jurisdiction over the subje...
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MEMORANDUM OPINION The Court, on its own Motion pursuant to an Order dated June 15, 1990, initiated proceedings under Section 707(b) of the Bankruptcy Code. At the initial hearing, the Court requested briefs from the Debtors, represented by Attorney Philip Hart, and the United States Trustee, represented by Attorney Richard Cuellar, on the question of whether the Court has the author...
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MEMORANDUM OF DECISION This matter came before the Court on the Debtors’ February 8, 1990 motion to restrain Creditor B.F. Goodrich Employees Federal Credit Union from closing accounts held by Debtors with the financial institution and to award Debtors costs incurred from the Credit Union’s actions. Debtors contended that: I. Creditor’s action was a violation of the automatic stay pr...
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MEMORANDUM OP DECISION DETERMINING NATURE, EXTENT AND PRIORITY OF LIENS Debtor, a Colorado limited partnership, commenced this adversary proceeding 1 *595 against Defendants to determine their respective interests in revenue at the Clarion Sacramento Hotel in California (Hotel). We hold that revenue from Hotel room sales is personal property, rather than rent from...
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MEMORANDUM OPINION AND ORDER INTRODUCTION Pursuant to section 510(b) of the Bankruptcy Code, the Unsecured Creditors Committee (the “Committee”) filed a motion to subordinate the claim of the United States Department of Labor (the “DOL”), which it brought on behalf of the Lenco, Incorporated Employees' Stock Ownership Plan and Trust (the “ESOP”) 1 The DOL argues that because its claim is re...
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DECISION ON MOTION FOR ORDER . APPROVING DISCLOSURE STATEMENT, AUTHORIZING DEBTOR TO SOLICIT ACCEPTANCE OF ITS PLAN OF LIQUIDATION AND FIXING A FINAL DATE FOR RECEIPT OF VOTES UPON DEBTOR’S PLAN This application presents what appears to be a matter of first impression, namely, whether a debtor in an involuntary Chapter 11 case, where no order for relief has been entered by the court, may join w...
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MEMORANDUM OF DECISION This case came before the Court on the Alabama Surface Mining Commission’s motion for payment of civil environmental penalties as 11 U.S.C. § 503(b)(1)(A) actual, necessary costs and expenses of preserving the estate. The Commission is the enforcer for state reclamation law for surface mines. The context of this decision is a Motion for Summary Judgment on the issue...
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MEMORANDUM OPINION On October 21, 1986, an involuntary petition for relief under the provisions of chapter 7 of the United States Bankruptcy Code was filed against Mid-South Cabinet & Millwork, Inc. (Mid-South). On November 23, 1988, James Allen Brown, the trustee for the chapter 7 estate, filed this adversary proceeding against Heigel Lumber & Hardware (Heigel) to recover two ...
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MEMORANDUM OPINION The issue before the court is a motion for relief from stay under 11 U.S.C. § 362 by First Community Bank to permit it to liquidate its asserted secured interest in a Three Bouys Sunseeker boat and to collect the remainder of the proceeds from the sale of a second Three Bouys boat being held by the trustee pending order of this court. The motion is opposed by inter-venors John ...
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ORDER ON PLAINTIFF’S MOTION FOR ASSESSMENT OF ATTORNEY’S FEES This matter is before the Court on Gail Ann Shearer’s (“Plaintiff”) motion for assessment of attorney’s fees. Plaintiff seeks to have this Court award her attorney’s fees for fees arising in this adversary proceeding to determine the dischargeability of debts. Having considered the argument of counsel and for the reasons set forth be...
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MEMORANDUM DECISION DISMISSING CASE Debtor filed his Chapter 7 petition on October 5, 1988. Sears, Roebuck & Co., a secured creditor in consumer goods, wrote to debtor’s attorney on October 28, 1988, requesting that debtor make a statement of intention with regard to Sears’ security interest under 11 U.S.C. § 521(2), which requires that an individual debtor with secured consumer debts fil...
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*811 OPINION This matter is before the Court on an Objection to Exemption and Amendment to Objection to Exemption filed by Creditor, Bank of Charleston (Bank) and on the Debtor’s Response to Objection of Exemptions. The Court, having heard arguments of counsel and having reviewed the briefs of the parties and the record of Debtors’ bankruptcy, makes the following findings of fact and conclusi...
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MEMORANDUM DECISION AND ORDER PRELIMINARY STATEMENT On March 22, 1990, the Trustee of the Chapter 7 estate of Sara Rose Hoffpauir and John Calvin Hoffpauir filed an Objection to the Debtors’ Claim of Exemptions as to proceeds received from a personal injury action. On April 3, 1990, the Debtors filed a Response to the Trustee’s Objection. At the initial hearing on this matter on July 6, 199...
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OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY This adversary proceeding in Chapter 7 asks whether debtor’s obligation to pay 40 percent of his military retirement to defendant, his ex-spouse, is a dischargeable debt. The parties agreed to submit the question on briefs and the record. Defendant has filed a motion for summary judgment. The complaint asserts that the obligation is a dischar...
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ORDER On August 7, 1989, El Ark Industries, Inc., filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. On August 10, 1989, on the debtor’s motion, Henry Morris, Esq., was appointed trustee. On April 9, 1990, the debtor and the trustee filed a liquidating plan of reorganization. The United States of America, on behalf of its agency, the U...
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ORDER GRANTING SUMMARY JUDGMENT I. Introduction. Wayne A. Brosman, d/b/a Pacific Mechanical, filed a chapter 7 bankruptcy petition on September 16, 1986. Through mistake or inadvertence, he failed to list Homestate Insurance Brokers of Alaska, Inc. as a creditor in the petition and in the matrix. The deadline for filing proof of claims was January 12, 1987. No proof of claim was file...
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OPINION AND ORDER ON DEBTOR’S MOTION FOR CONTEMPT This proceeding is before the Court pursuant to the Motion for Contempt filed by the Debtor, U.S. Electric, Inc. (hereinafter “Debtor”), against Basic Distribution, Inc. and its President, Andrew W. Kerr, (hereinafter collectively “Basic”). By its Motion, Debtor seeks to have Basic found in contempt for violation of § 362, release all mech...
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OPINION AND ORDER ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION This matter is before the Court on the Objection of Larry E. Staats, Trustee herein, to Debtors Claim of Exemption of payment for personal bodily injury. 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 under 28 U....
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MEMORANDUM AND ORDER The Court is called upon in this case to determine the effect of the Uniform Commercial Code on a creditor’s security interest in oil and gas properties. Specifically, the Court must decide whether assignments of the debtor’s working interests in oil and gas leases given as security for loans to the debtor were required to be perfected as security interests under the ...
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MEMORANDUM OPINION The above referenced adversary proceeding was tried before this Court on July 19, 1990. Briefs requested by the Court from the parties were filed on October 15, 1990. Upon consideration of the evidence adduced at the trial, the pleadings of the parties, the briefs of the parties, the argument of counsel, and the Court’s own independent research, the Court is of the opin...
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MEMORANDUM DECISION: On May 18, 1989 the debtor, A & H, Inc. (“A & H”), filed its bankruptcy petition. On May 31, 1989 Ryder Truck Rental, Inc. (“Ryder”), filed a general unsecured proof of claim in the amount of $14,511,000.00 based upon a November 10, 1988 state court judgment stemming from an accident involving a truck leased from Ryder by the debtor. In that case, Ryder counterclaimed...
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MEMORANDUM OPINION On August 3, 1990, Sharon K. Mullins, by and through her attorney, Hal B. Hav-lisch, filed an individual voluntary petition for protection under Chapter 7 of the Bankruptcy Code. Ellen Briones was appointed as Trustee on August 15, 1990. The first meeting of creditors concluded September *81012, 1990, with the Trustee’s report indicating a no asset case. On October 15, 1990, AYC...
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MEMORANDUM OPINION Came on for trial plaintiffs Complaint to Recover Money or Property from defendant. After considering the evidence, pleadings, memoranda and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith, in favor of plaintiff. To the extent any findings of fact herein are construed to b...
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OPINION This case comes before the court upon motion of the debtor for entry of an order directing it to turn over proceeds from the sale of certain personal property to Summit Trust Company, a secured creditor in this case. Subsequent to the filing of the motion and responses thereto, and a hearing on the motion and responses, this court, pursuant to separate motion, converted the case from on...
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MEMORANDUM OF DECISION AS TO MOTION TO DISMISS Plaintiff, Arthur C. Unger, Chapter 11 Trustee, for Stereo Equipment Sales, Inc. (the “Debtor”) seeks to avoid and recover a transfer of funds which he asserts is preferential and avoidable under 11 U.S.C. § 547 of the Bankruptcy Code. Defendant, INAC Corp., moves to dismiss the Complaint on the single ground that the transfer described in the compla...
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MEMORANDUM OPINION SUSTAINING OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN AND LIFTING AUTOMATIC STAY Equitable Bank, N.A. filed an objection [P. 7] to the confirmation of the debtors’ Chapter 13 plan and a motion to lift the automatic stay. For the reasons set forth in this opinion, confirmation will be denied and the motion to lift the automatic stay will be granted. FINDINGS OF FACT 1. T...
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MEMORANDUM OPINION This matter came on for regular hearing pursuant to a Motion to Dismiss by the United States of America (Internal Revenue Service), hereinafter IRS, to dismiss on the grounds that Debtor is disqualified from filing for relief under Chapter 13 of Title 11 pursuant to § 109(e) in that the IRS alleges that Debtor owes in excess of $100,000.00 in unsecured non-contingent liquidat...
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MEMORANDUM OPINION This opinion concerns the objection of the trustee in bankruptcy to a proof of claim filed in the case by Construction' Consultants International Corporation (“CCIC”). Elizabeth A. Stuckey filed a Chapter 11 petition on July 12, 1988. Her case was converted to a chapter 7 on March 29, 1989, and Robert G. Mayer was appointed as her chapter 7 trustee in bankruptcy. ...
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ORDER On July 11, l£>89, Walter John Giller, Jr., (debtor) filed a voluntary petition for relief under the provisions of chapter 11 of the United States Bankruptcy Code. The debt- or claimed the following real property and personal property as exempt pursuant to 11- U.S.C. ■§■ 522(b)(2), Ark.Code Ann. §■ 16-66-218 (Supp.1989), Ark. Const. art. 9, § 1, and Ark.Code Ann. § 4-42-502 (1987): ...
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ORDER IMPOSING SANCTIONS AND NOW, this 28th day of June, 1990, upon observing that Vito F. Canuso, Jr., Esquire (“Canuso”) failed to appear at the hearing of June 26, 1990, continued by Ca-nuso’s agreement to that date from May 31, 1990, to determine what defenses, if any, Canuso has to the charge of contempt of this court, which appears to be both civil and criminal, for failing to comply with...
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MEMORANDUM OPINION On August 6, 1990, John F. Ames, trustee, filed an application to sell the debtor’s residence free and clear of liens and interest of co-owner pursuant to 11 U.S.C. § 363(b)(1). The property in question is *10 held by the debtor as tenants by the entirety with his wife, who has not filed for bankruptcy protection. The debtor has claimed the property exempt under 11 U.S.C. §...
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ORDER AUTHORIZING SALE OF ASSETS, FREE AND CLEAR OF LIENS, DISBURSING PROCEEDS FROM SALE AT TIME OF CLOSING, AND GRANTING AND RECOGNIZING LIENS This cause came on for hearing pursuant to notice on September 19, 1990, upon the Motion of the Trustee (“Motion”) on behalf of Tennessee Chemical Company (“Debt- or”) for the sale (“Sale”) of assets to Boli-den Intertrade A.G. (“Boliden”), filed August 29...
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MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT BY DEFENDANT I Statement of Proceedings This adversary proceeding came before the Court on a Motion for Summary Judgment filed by the Defendant on July 5, 1990. By Order of this Court dated July 13, 1990, the Plaintiff was given 15 days to file a response or answer to said motion and upon so doing the Defendant...
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MEMORANDUM OPINION This matter is before the court on a motion to lift the automatic stay imposed 11 U.S.C. § 362(a). The question to be decided is whether the filing of a bankruptcy petition by a general contractor operates to stay a mechanic’s lien enforcement action brought by a subcontractor if the general contractor is not the owner of the real property against which the lien is pend...
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MEMORANDUM In this case Mahlon Chapman and Judith A. Chapman (debtors) filed their Chapter 13 petition on February 14, 1990. The plan filed by the debtors proposed to “cram down” the loan of General Motors Acceptance Corporation (GMAC) which is secured by a lien on the title of a 1989 Grand Prix Se automobile. GMAC filed objections to the plan, a hearing has been held, the issues have been brie...
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MEMORANDUM OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Facts The property which is the subject of this dispute was leased by Fletcher Oil Co., Inc., 1 the owner of record, to Second National Bank (“SNB”) on August 5, 1977. The lease was for a 15-year term and included options for renewal. SNB built and occupies a branch office on the property. On August 2, 1982, the ...
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125 B.R. 177 (1990) In re Ronald A. WALKER, Debtor. In re Richard A. D'AGOSTINO, Debtor. OXFORD VIDEO, INC., Plaintiff, v. Ronald A. WALKER, Defendant. OXFORD VIDEO, INC., Plaintiff, v. Richard A. D'AGOSTINO, Defendant. Bankruptcy Nos. 88-11850, 88-11851, Adv.Nos. 89-1129, 89-1130. United States Bankruptcy Court, E.D. Michigan, S.D. August 31, 1990. *178 Stanley T. Dobry, Warren, Mich., for plain...
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MEMORANDUM AND ORDER This matter is before the court on motion of Circle Business Credit, Inc. (Circle), as the lessor of certain equipment, for an order prohibiting the use by the Debtor of funds generated by the subleasing of said equipment. The Motion, filed October 24, 1990, while not a motion for relief from stay nor a motion to assume or reject an unexpired lease, does propose ...
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MEMORANDUM OPINION AND ORDER OF DISMISSAL 1 AND RECOMMENDATIONS TO UNITED STATES ATTORNEY FOR NORTHERN DISTRICT OF INDIANA This Chapter 11 case came before the Court on August 24, 1990 for final hearing on Motion to Dismiss this case filed by the U.S. Trustee on August 9, 1990, after notice to all creditors and parties in interest. Submitted. Evidence and arguments heard. The parties stip...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Trustee herein, Terry R. Pickard, Esq. (“Trustee”) has filed an Application In Support of Motion For Allowance Of Payment Of Interim Compensation And Reimbursement of Expenses of Attorney and Accountant (“Fee Application”). The Fee Application seeks approval of interim compensation to be paid to Byrne, Costello & Pickard, P.C...
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I. INTRODUCTION The issue in dispute is whether 11 U.S.C. Section 544(a)(3) enables the holder of an equitable interest in real property to avoid the transfer of another equitable interest in the subject real property. A. Procedural History On July 11, 1990, Thomas R. Zeigler (“Plaintiff”) filed a complaint (“Complaint”) against Hathaway Ranch Partnership, a California li...
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ORDER This matter came before me upon a Motion by Defendant, E.R. Ginn, III, to Amend or Supplement his Answer in this adversary proceeding by adding five counterclaims, three for breach of contract, and two tort claims against Plaintiff Federal Deposit Insurance Corporation. After reviewing the motion, the memorandum submitted, and hearing arguments of counsel, this Court is of the opinion that ...
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OPINION Before the Court is the objection filed by the Chapter 7 Trustee to the claim of exemptions filed by one of the Debtors, CYNTHIA SUE WIMMER. The Debtors filed a joint Chapter 7 petition in bankruptcy on December 11, 1989. As of that date, the Debtor had terminated her employment with Ruppman Marketing Services, Inc., and was entitled to demand a lump sum distribution of at le...
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COMBINED ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT BACKGROUND Defendant 1 was a dealer and merchant of perishable agricultural commodities (“produce”) and subject to the Perishable Agricultural Commodities Act of 1930, as amended in 1984, 7 U.S.C. § 499a, et seq. (“PACA”). Between July 22, 1989, and Octobe...
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MEMORANDUM AND ORDER On October 25, 1990, a Continued Hearing on Confirmation of the Debtor’s Plan of Reorganization and Hearing on Motion for Confirmation pursuant to 11 U.S.C. Section 1129(b) was held in Savannah, Georgia. An Objection to Confirmation was raised by Trust Company Bank of Coffee County (“Trust Company”), a secured creditor, alleging that the proposed plan does not meet th...
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MEMORANDUM ORDER Pending before the Court is the Trustee’s Adversary Complaint for turnover of property of the estate in two bankruptcy proceedings. The two matters were consolidated by the Court and submitted by the parties upon a stipulation of facts contained in the Joint Pretrial Statements in the respective cases and the arguments of counsel. This Memorandum Order constitutes finding...
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MEMORANDUM OPINION This matter came on for hearing on the Motion of the Debtor-defendant, Adam Jackson Whitley III, for Summary Judgment and Cross-motion of the Plaintiff, Tommy Cain, for Summary Judgment. After due deliberation on all testimony, pleadings, arguments and briefs subsequently filed, this Court concludes and orders as follows: FINDINGS OF FACT The Debtor, Adam Jackson Whitley III, fi...
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OPINION AND ORDER CAME ON for hearing the application of Robert Moffitt, chapter 11 trustee in this case, for compensation under Sections 326(a) and 330(a) of the Bankruptcy Code. Also considered at the same hearing was the Trustee’s Final Report and Accounting. The liquidating agent under the confirmed Chapter 11 Plan filed an objection. Upon consideration thereof, the court finds and co...
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MEMORANDUM OPINION This matter was brought forward by a motion to extend the time for filing an action under 11 U.S.C. § 523(a)(2), (4) or (6). It involves an alleged creditor who had filed suit against Debtor W.G. Hall, Jr. prior to the filing of this bankruptcy case but who was omitted from the original schedules; allegedly by oversight. This alleged creditor, Mr. H.J. Thomas, was notif...
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ORDER Upon the written stipulation of all the parties that no improprieties have taken place in this matter, and upon their representations made in open court that all disputes of a judicial nature which may arise in this Chapter 7 proceeding shall be placed only before this court, and it therefore appearing that no order of the court is necessary to insure the proper conduct of the parties, it is...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case involves the solicitation of confirmation votes by a creditor, an Indenture Trustee, in an effort to reject the debtors’ proposed plan of reorganization. The Indenture Trustee has asked this Court to determine whether the Court must approve all materials used in such solicitation prior to their dissemination. JURISDICTION This court has ...
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MEMORANDUM OPINION Windham Power Lifts, Inc. filed this complaint against the Department of Defense1 to recover $31,264.03 for storing and insuring property of the government for a period of eleven months following the debtor’s petition in bankruptcy. Trial was held October 24, 1990.2 Many of the facts were undisputed. The remainder are found by the court pursuant to Bankruptcy Rule 7052. The gove...
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ORDER GRANTING MOTION TO ' AVOID SECURITY INTEREST IN EXEMPT PROPERTY On September 5, 1989 debtors filed their Motion To Avoid Security Interest In Exempt Property as against the lien held by Avco Financial Services. On October 16, 1989 Avco Financial Services of Indianapolis, Inc. filed its Response And Objection To Motion For Avoidance Of Lien. These matters came on for hearing on December 6, 1...
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MEMORANDUM OPINION AND ORDER I. Statement of Proceedings This contested matter came before the court on the Objection of Citizen’s Federal Savings and Loan Association (hereinafter “Citizens”) filed on January 23, 1990 to the Debtor’s Second Petition to Modify Plan After Confirmation. The court held a pre-hearing conference on this matter on March 23, 1990 and ordered the pa...
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MEMORANDUM OPINION As framed by the Commonwealth of Kentucky Revenue Cabinet, a creditor in this chapter 11 case, the question to be decided is, are the tax claims numbered 21 through 34 on the Revenue Cabinet’s proof of claim the liability of the debtors herein, that is the Sullivan Brothers as a partnership, or are they, as claimed by the debtors, the responsibility of Sullivan Brothers, Inc., ...
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131 B.R. 710 (1990) In the Matter of Thomas Allen CRONK and Karen Marie Cronk, Debtors. Bankruptcy No. 90-23-D H. United States Bankruptcy Court, S.D. Iowa. June 14, 1990. Martha Easter-Wells, Davenport, Iowa, for debtors. J.W. Warford, Des Moines, Iowa, Chapter 13 Trustee. Ellen Kay Curry, Davenport, Iowa, for Mississippi Valley Credit Union. ORDER—OBJECTIONS TO PLAN RUSSELL J. HILL, Bankruptcy...
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RULING RE: DETERMINATION OF NATURE AND EXTENT OF LIENS HELD BY TRAVELERS INSURANCE COMPANY This matter is before the Court on the complaint of plaintiff, Airport Inn Associates, Ltd., to determine the nature and extent of the liens held by defendant, Travelers Insurance Company. The parties entered into a stipulation of facts and exhibits, and submitted the matter to this Court on briefs ...
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ORDER ON FEE APPLICATIONS Applications were filed in these two estates by Mr. James R. Chadderdon seeking compensation both for his services as Trustee and for the services that he performed in his capacity as attorney for the Trustee. Similarly, applications have been filed for compensation by Mr. Paul T. Ge-freh in his role as special counsel for the Trustee in each estate. In supp...
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OPINION Prior to the Debtor filing its bankruptcy proceeding, the Defendant had been employed by the Debtor and had sued the Debtor for wages due. In December of 1987, the litigation was settled for $42,-500.00 and judgment was entered for that amount. To satisfy the judgment, the Debtor made an initial payment of $10,-000.00, and over a twenty-two month period, four $5,000.00 payments in...
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ORDER DENYING AMERITRUST BANK’S MOTION FOR EXTENSION OF TIME AND CLARIFYING PARTIES’ RIGHTS This matter comes before the Court on the Motion for Extension of Time to Object to Discharge (“the Motion for Extension of Time”) filed on June 16, 1989, by Ameri-trust Bank, Johnson County, f/k/a Franklin Bank and Trust Company (“the Bank”). A hearing was held on August 30, 1989. The Court now denies t...
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ORDER DENYING DEBTOR’S MOTION TO AVOID LIEN AND GRANTING MOTION OF GEORGE AND MARIE HARLAN FOR RELIEF FROM STAY This matter comes before the Court on the Motion to Avoid Lien filed on January 2, 1990, by the Debtor and on the Motion for Relief from Stay filed on January 5, 1990, by George and Marie Harlan (“the Harlans”). The matters were heard on February 20, 1990. The Court now denies the Mot...
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*211 ORDER GRANTING MOTION FOR DEBTOR’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING TRANSAMERICA COMMERCIAL FINANCE CORPORATION’S MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on the Motion for Partial Summary Judgment filed by the Debtor on March 3, 1989, and on the Motion for Summary Judgment filed by Transamerica Commercial Finance Corporation (“Transameri...
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DECISION AND ORDER OVERRULING OBJECTION OF FIRST NATIONAL BANK OF POTH TO DEBTOR’S CLAIM OF HOMESTEAD EXEMPTION CAME ON for hearing the objection of First National Bank of Poth Debtors to Debtors’ asserted homestead exemption. Upon consideration thereof, the court finds and concludes that the objection must be overruled. BACKGROUND FACTS The Debtors owned some rural land outside Floresville, Texas...
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DECISION AND ORDER ON LIEN VALIDITY AND PRIORITY This matter is before the court upon the objections to the confirmation of the plan of the debtor in possession. With one exception, Butler Landmark, Inc.’s (“Butler Landmark”) objections have been resolved by the debtor in possession. The exception is Butler Landmark’s claim to a first and best lien in collateral described in its financing...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER FOR JUDGMENT Heard in Denver, on May 8, 1990, on the plaintiffs’ complaint to have the obligations represented by two promissory notes declared nondischargeable, pursuant to § 523(a)(4). The issue before the Court is whether the “Middleswarth settlement” and the two notes issued pursuant thereto, were intended to address all claims asserted by the ...
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MEMORANDUM OPINION Came on for hearing on November 16, 1990 the Emergency Motion to Modify the Automatic Stay To Allow Prosecution of a Pending State Court Lawsuit filed by Jorge A. Gutierrez, as Receiver for Rio Grande Savings and Loan Association, in Liquidation. Responses opposing the relief sought were filed by the Debtor, Ronald A. Piperi, Ray C. Wilson, Creditor’s Trustee of Mortgag...
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MEMORANDUM DECISION FINDINGS OF FACT AND CONCLUSIONS OF LAW OVERRULING OBJECTIONS TO EXEMPTIONS I. BACKGROUND This matter came before the Court for hearing on September 25, 1990, on objections to a claimed exemption. The Court received various evidence, heard the argument of counsel for the Debtor, counsel for Steven Friedman, the Trustee, and counsel for the Florida Patient’s Compen...
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The Trustee sued AM Cable for breach of a Chapter 11 post-petition contract with Debtor. AM Cable moved 1 for an order dismissing the Trustee’s complaint on grounds that: (a) we lack subject matter jurisdiction over this proceeding; (b) both the Bankruptcy Court and the U.S. District Court for the Eastern District of New York lack in personam jurisdiction over AM Cable; (c...
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OPINION Background On January 29,1985, Presque Isle Apartments, L.P. (“Debtor”) executed a ninety-day promissory note (“Note”) in the amount of $300,000 bearing an interest rate of 12% per annum in favor of First Fidelity Bank (“Bank”). The Bank was secured by a second mortgage on the debt- or’s 96 unit apartment complex. The Note provided that, in the event of default, the Bank was entitle...
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MEMORANDUM AND ORDER The matter before the court is the confirmation of the Debtors, Daniel C. and Candace R. Lund’s, Amended Chapter 12 Plan of Reorganization with Addendum. The United States of America through the Commodity Credit Corporation objects to the plan of reorganization, asserting that the plan impairs the Agricultural Stabilization and Conservation Service’s right of administrative...
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ORDER ON MOTION TO ALLOW LATE FILING OF PROOFS OF CLAIM THIS IS a Chapter 11 reorganization case and the matter under consideration is a request by the United States of America (Government) seeking leave to file five (5) proofs of claim totalling in excess of $300 million. In its Motion the Government contends that while the claims were concededly filed one (1) day after the bar date, neverthel...
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MEMORANDUM DECISION (amended) In this adversary proceeding the debtor, Dorothy M. Brantley, filed a complaint to recover $7,227.15 collected from her by defendants on a discharged debt. She contends the actions of defendants violated the permanent injunction against collection of discharged obligations imposed pursuant to 11 U.S.C. § 524(a)(2). Facts On November 20,...
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MEMORANDUM THIS MATTER comes before the court upon Debtors’ Notice of Lien Avoidance (Fil. # 20). Geo Virus, Inc. and Superior-Deshler Co. have filed Objections to Lien Avoidance (Fil. # 37 and Fil. # 38). Parties have filed a stipulation of facts (Fil. # 64). Debtors seek to avoid liens in approximately 2,400 bushels of corn and 520 bushels of wheat under 11 U.S.C. § 522(f). The debtors claim the...
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MEMORANDUM OPINION This dispute arises in the context of Placid Oil Company’s (“Placid’s”) Objection to Administrative Claim Filed by the Internal Revenue Service (“Objection”). Appearing on behalf of Placid were Khent Rowton and Richard Bruse of the law firm of Simon, Anisman, Doby, Wilson & Skillern. The Department of Revenue (referred to herein as the “Government” and the “IRS”) was represente...
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SECOND REVISED MEMORANDUM OPINION Before the Court for consideration is Placid Oil Company’s (“Placid’s”) Objection to Administrative Claim Filed by the Internal Revenue Service (“IRS”). After hearing oral argument on the objection, the Court took the matter under advisement. After reviewing the objecting and responsive documents, the Court denies Placid’s objection. The Court has ju...
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ORDER On October 10,1989, Spa Equipment Systems, Inc., d/b/a Floor Design (“Spa”) filed its Motion for Summary Judgment concerning F.E. Harding Paving Co., Inc.’s Complaint filed in Adversary Proceeding No. 89-3005. 1 On November 24, 1989, F.E. Harding Paving Co., Inc. (“Harding”) filed its own Motion for Summary Judgment both with respect to the debtor, Venture Properties, Inc...
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Before this Court are: (1) Debtor-plaintiff Decalcomania Manufacturing Corporation’s Verified Complaint for judgment avoiding the transfer of property as a fraudulent conveyance and vesting possession and title in the subject property in the debtor, and (2) defendant City of Camden’s *671 Motion to Dismiss the adversary proceeding. The following constitutes this Court’s findings of...
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*754 MEMORANDUM OPINION This matter comes before the court on objection by Gerald M. O’Donnell, chapter 13 trustee, to confirmation of the plans in these related chapter 13 cases. A consolidated -hearing on the objections was held on December 12, 1990. For the reasons stated below, this court sustains the trustee’s objections. Facts The facts are undisputed. The deb...
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OPINION Before the Court is the Debtors’ Second Amended Joint Plan of Reorganization under Chapter 11 of the United States Bank *416 ruptcy Code (“the Plan") dated May 31, 1990 submitted by Resorts International, Inc., (“Resorts”), Resorts International Financing, Inc., (“RIFI”), Griffin Resorts, Inc., (“GRI”) and Griffin Resorts Holding, Inc., (“GRH”), all debtors herein col...
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ORDER ON APPLICATION OF THE IRS FOR PAYMENT OF ADMINISTRATIVE EXPENSE THIS CAUSE came on for hearing with notice to all parties in interest upon an Application of the Internal Revenue Service (IRS) for payment of administrative expenses in the above-captioned Chapter 11 case. The facts are without dispute and T.J. Lunsford, Jr., d/b/a T.J. Express (Debtor) admits that he is in fact indebted to the...
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ORDER The Plaintiff/Trustee and Debtors filed a Complaint under Bankruptcy Rule 7001 to contest the tax assessed pre-petition against the Debtors by the Defendant, *63 Montana Department of Revenue (D.O.R.) under the Montana Dangerous Drug Tax Act, Section 15-25-101, et seq., Mont.Code Ann. (1987). The Complaint states thirteen different counts for relief, all of which are de...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER ON OBJECTIONS TO PETITION UNDER CHAPTER 9 On April 5, 1990, a hearing was held on the Objections to Petition Under Chapter 9 filed by Richard S. Kitchen, Sr., Gerald D. Goldberg, Arthur D. Foster, and Joanne L. Andrews Pappas and Chris J. Pappas (collectively referred to as “Objectors”). Pursuant to B.R. 7052 and 9014, the Court makes the fol...
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ORDER On September 22, 1989, 105 B.R. 912, this court ruled that costs related to the disposal of hazardous wastes generated by a court appointed examiner during the pendency of Chapter 11 proceedings are not properly chargeable against the interests of the secured creditor under 11 U.S.C. § 506(c). The State of Wisconsin (Department of Natural Resources) appealed this court’s decision and orde...
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ORDER SUPPLEMENTING MEMORANDUM OPINION AND ORDER GRANTING PRELIMINARY INJUNCTION DATED OCTOBER 18, 1990 Upon the Motion (the “Motion”) of Prime Motor Inns, Inc. and Prime Management Co., Inc. (collectively “Prime”) seeking entry of a temporary restraining order and preliminary injunction (the “Supplemental Relief”) supplementing the Court’s Memorandum Opinion and Order Granting Preliminary Injunct...
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MEMORANDUM DECISION I. BACKGROUND This case is before the Court upon stipulated facts. In August 1967, debtor Sheila Weisman (formerly Sheila Peters but referred to herein as “Weisman”) bought a single family home located at 565 Cambrian Drive, Campbell, California, with her then husband, Marc Peters (“Peters”), defendant in this action. Their marriage was terminated, effective November 4, 1985. P...
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ORDER GRANTING MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT AND DENYING MOTION TO DISMISS This matter comes before the Court on the Motion for Approval of Rejection of Collective Bargaining Agreement with Local 550R, United Food & Commercial Workers’ Union (“the Motion to Reject”), filed on April 27, 1990, by the Debtor, Indiana Grocery Co., Inc. (“IGC”), and on the motion to dismiss ...
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ORDER DENYING MOTION TO REJECT COLLECTIVE BARGAINING AGREEMENT This matter comes before the Court on the Motion for Approval of Rejection of Collective Bargaining Agreement with Local 550R, United Food & Commercial Workers’ Union (“the Motion to Reject”), filed on October 5, 1989, by the Debtor, Indiana Grocery Co., Inc. (“IGC”). A hearing was held on November 27 and 28, 1989. The Court n...
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OPINION AND ORDER IN CONNECTION WITH APPLICATION OF DEBTOR TO EMPLOY HONING-MAN, MILLER, SCHWARTZ & COHN AS ATTORNEYS FOR THE DEBTOR The debtor has filed an application seeking to employ Honingman, Miller, Schwartz & Cohn (“HMS & C”) as its attorney in this Chapter 11 proceeding which was filed on or about November 26, 1990. The United States Trustee has objected to the appointment on the...
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OPINION AND ORDER ON FEES OF HUGHES & DORSEY I. INTRODUCTION This matter is before the Court on the Final Fee Application of Hughes & Dorsey (H & D or Applicant) pursuant to the provisions of 11 U.S.C. § 330. A hearing was held on this matter. From the commencement of the case, October 10, 1986, through confirmation, April 21, 1989, H & D billed total costs and fees a...
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ORDER DENYING DEBTORS’ MOTION TO AMEND ORDER DIRECTING PAYMENT OF DISPOSABLE INCOME AND DENYING FARM CREDIT BANK’S MOTION TO AMEND PLAN The matter before the Court is the motion seeking amendment of this Court’s order directing payment of disposable income, filed by debtors on October 29, 1990, and the related motion to amend the debtors’ Chapter 12 plan, filed by Farm Credit Bank on November 9...
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*339ORDER GRANTING MOTION FOR RECONSIDERATION The Opinion and Order of July 7, 1989 is hereby amended as follows: 1. Substitute “Jay Shulman” for “Jay Shuster” in Finding of Fact No. 8. 2. Strike Conclusions of Law Nos. 7(b), 7(c), 10, 19 and 20. Interim compensation in the amount of $53,147.98 and reimbursement of out-of-pocket expenses in the amount of $3,050.67 are hereby awarded to the law fi...
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OPINION A. INTRODUCTION The instant proceeding, concerning the Debtor’s efforts to recover $7,990 in cash (hereinafter “the Funds”) which the State of New Jersey (hereinafter “the State”) is attempting to retain as the fruits of a civil forfeiture proceeding, placed several interesting and difficult issues before the court. We cannot finally resolve all of issues because we find that...
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DECISION FACTS The Debtor, S & S 31 Flavors Inc., is in the business of operating a Baskin & Rob *203 bins Franchise and filed a petition for relief under chapter 11 of the Bankruptcy Code on May 10, 1989. The Debtor’s primary reason for seeking relief under chapter 11 was to resolve disputed claims for unpaid taxes with the Internal Revenue Service (hereafter the “IRS”)...
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MEMORANDUM OPINION ON CREDITOR’S CLAIM OF NON-DISCHARGEABILITY THIS MATTER- came on to be heard upon a complaint to determine discharge-ability of a claim alleged to be due the plaintiffs from the debtor. The complaint is based on Sections 523(a)(2)(A) and 523(a)(4) of the Bankruptcy Code, with accompanying state claims for fraud and civil theft. This court has jurisdiction pursuant to 28 U.S.C...
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DECISION AND ORDER ON SUA SPONTE SHOW CAUSE HEARING REGARDING IMPOSITION OF SANCTIONS FOR IMPROPER REMOVAL GAME ON for hearing sua sponte the defendants herein to show cause why sanctions should not be imposed pursuant to Rule 9011 for improperly removing the aforementioned action from state to federal court. The court concludes that sanctions should be imposed. BACKGROUND...
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MEMORANDUM OPINION This matter comes before the court on a motion by Cumis Insurance Society, Inc. (“Cumis”) to reopen debtors’ chapter 7 bankruptcy case. A hearing was held on September 17, 1990, where the matter was taken under advisement, and the parties were directed to submit memoranda and a written stipulation of facts. After considering the arguments of counsel at the hearing and t...
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*83 MEMORANDUM, OPINION & ORDER This matter comes before the Court on the application of attorney David F. Platek (“Platek”) for allowance of final compensation and reimbursement of expenses. The following constitutes the Court’s findings of fact and conclusions of law. FACTS Diamond Mortgage Company of Illinois and A.J. Obie and Associates, Inc were related entities in...
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