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All Reporters → bankr-lexis → Volume 1994

Opinions in bankr-lexis Volume 1994

REQUEST BY METROPOLITAN LIFE INSURANCE COMPANY FOR PAYMENT OF ADMINISTRATIVE EXPENSE OPINION Introduction Before the Court is Metropolitan Life Insurance Company’s (“MetLife”) Request for Payment of Administrative Expense (“Request”) and the objections to the Request filed by Sharon Steel Corporation (“Debtor”), Mueller Industries, Inc. (“Mueller”) and Citibank, N.A., as agent for the B...
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OPINION The instant adversary proceeding (“the Proceeding”) arises as a result of our previous decision of November 1, 1993, reported at 160 B.R. 757 (“Union Meeting I”), denying confirmation of competing plans proposed by UNION MEETING PARTNERS (“the Debtor”) and' by the Debtor’s principal secured creditor, LINCOLN NATIONAL LIFE INSURANCE CO. (“Lincoln”). In Union Meeting ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Debtors’ objection to claim 7 filed by Farm Credit of North Florida, ACA. The Court held a hearing on August 26, 1993, and upon the evidence presented, enters the following findings of fact and conclusions of law: FINDINGS OF FACT On August 5,1985, debtors gave claimant a promissory note in the amount of $75,500....
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MEMORANDUM AND DECISION DENYING STAY AND PRELIMINARY INJUNCTION On December 3, 1993, Keene Corporation (“Keene”) filed its Chapter 11 petition with this Court. At the time of the filing, Keene was a defendant in approximately 101,000 lawsuits involving asbestos-related property damage, personal injury or death. Adverse judgments, aggregating approximately $63 million, had been rendered ag...
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MEMORANDUM OPINION Agribank, FCB (“Agribank”) moved this Court to lift the automatic stay on 933 acres of real estate. This is a core proceeding under 28 U.S.C. § 157(b)(2)(G) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I terminate the automatic stay as to the 933 acres of real estate. FACTUAL BACKGROUND ...
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MEMORANDUM OPINION Agribank, FCB (“Agribank”) and Danny R. Nelson, Chapter 7 trustee, have moved for summary judgment on their separate complaints objecting to the discharge of Jay Worley Kingsley and Charlene Kay Kingsley (“debtors”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(J) over, which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), an...
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DECISION Before the court is a motion brought pursuant to Bankruptcy Code § 522(f)(1) and Bankruptcy Rules 4003(d) and 9014 by Fi-rooz Abrahimzadeh a/k/a Fred Abrahim, (“Debtor”) to avoid the judicial lien of TEC Products Co., Inc. (“TEC Products”). The following constitutes the Court’s findings of *677 fact and conclusions of law as required by Bankruptcy Rule § 7052. T...
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*796 Table of Contents FINDINGS OF FACT Page Introduction 796 The Hawxhurst Accident and Activities in the New York Court (January 1982-January 1986) 797 Relevant Proceedings in the Bankruptcy Court (January 1986-December 1988) 798 State Court Litigation (1986-1991) 799 Lack of Notice to TWA 800 Presentation of the Present Motions 801 Pettibone’s...
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ORDER On October 20, 1992, the Panel filed its decision affirming the trial court. The published opinions issued are reported as In re Newbery, 145 B.R. 998 (9th Cir. BAP 1992). A notice of appeal to the Ninth Circuit Court of Appeals was filed on October 29, 1992. Subsequently, the parties reached a settlement of their dispute and Newbery Electric, Inc., filed a motion for a voluntary dism...
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OPINION The Massachusetts Housing Finance Agency (“MHFA”) moves for an order requiring the chapter 11 debtor, Indian Moto-cycle Associates III Limited Partnership (the “Debtor”), to repay funds the Debtor disbursed from its operating income prior to the filing of its chapter 11 petition on December 15, 1992. The Debtor used the funds, total-ling about $65,000, for the payment of a ret...
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OPINION The Debtor initiated this adversary proceeding on December 17, 1992 by fifing a Petition to Determine Tax Liability Pursuant to 11 U.S.C. § 505(a), and Objection to Claim (the “Petition”). The Court must initially decide whether the Debtor was a “responsible person” within the meaning of Internal Revenue Code (“IRC”) § 6672 during the time period in question. If this Court fin...
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MEMORANDUM DECISION RE: CROSS MOTIONS FOR SUMMARY JUDGMENT FACTUAL BACKGROUND The debtor, Mary Lowrie, failed to file tax returns for tax years 1980 and 1981. In 1984, Lowrie and her attorney met with an Internal Revenue Service (“IRS”) agent who prepared substitute 1040 forms, and 1902-B and 3547 forms. The substitute 1040’s contained only Lowrie’s name, address and social security number; t...
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OPINION Prior to seeking relief under chapter 13 of the Bankruptcy Code, debtor operated a business known as Cultured Creams and, as such, was subject to the requirements of the Illinois Retailers’ Occupation Tax Act and the Illinois Use Tax Act.1 The Illinois Department of Revenue (the “IDR”) filed a priority claim in the amount of $15,585.00 for unpaid taxes for the period of July 1988 throug...
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OPINION Debtors, Roger and Julie Woodside, filed a Chapter 13 bankruptcy petition on October 23,1992, and listed a debt of $952.80 owed to Williamson County, Illinois, as a traffic fine imposed against Roger Woodside for carrying an overweight load. On January 20, 1993, the debtors’ plan was confirmed providing for 10% payment to unsecured creditors, including Williamson County. Subsequently,...
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ORDER GRANTING SECURED CREDITORS’ MOTION FOR RULE 9011 SANCTIONS This Order grants HATTIE B. HINDS and E. EUGENE PRICE, Personal Representative of the ESTATE OF ERNEST PRICE, Deceased, (hereinafter “Secured Creditors”) Motion for Rule 9011 Sanctions against Phoenix Land Corporation, R.C. Ei-chenberger, its Vice President and Charles Neustein, its attorney, jointly and severally. In entering thi...
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DECISION & ORDER BACKGROUND On February 5,1990, Nadine Checho Friel (the “Debtor”) filed a petition initiating a Chapter 7 case. On February 15, 1990, the Office of the United States Trustee designated a Chapter 7 trustee (the “Trustee”), and on February 20,1990, a Section 341 Meeting Notice (the “Section 341 Meeting Notice”), *646 informing creditors that a meeting of c...
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MEMORANDUM OPINION This adversary proceeding is an action to *553 establish, under Section 523(a)(8) 1 , the non-dischargeability of a debt owed by the defendants to the plaintiff on account of a student loan. This matter comes before the court upon the parties’ cross motions for summary judgment. After reviewing the parties’ respective motions, inc...
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OPINION Factual Background On October 19,1990, Lyons Transportation Lines, Inc. et al. (“Lyons”) filed its voluntary Petition under Chapter 11 of the Bankruptcy Code. On November 1, 1990, Sable, Mako-roff & Gusky, P.C. (“SMG”) filed an Application to be appointed as counsel to the Official Committee of Unsecured Creditors (“Committee”). An order approving the SMG’s appointment effective as of...
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ORDER DENYING “MOTION OF DEFENDANT GENERAL PURPOSE STEEL, INC. TO ABSTAIN OR IN THE ALTERNATIVE TO STAY PROCEEDINGS PENDING REFERRAL TO INTERSTATE COMMERCE COMMISSION” Defendant General Purpose Steel, Inc. (“GPS”) moves for abstention from or stay of *879this adversary proceeding “Pending Referral to Interstate Commerce Commission.” Plaintiff Sunbelt Freight, Inc. (“Sunbelt”) objects. Upon cons...
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MEMORANDUM OF DECISION Responding to this court’s sua sponte show cause order, the plaintiff, Alfred O. Hiersche, Sr. (“Hiersche”) has filed papers to support theories by which his complaint, invoking *376 §§ 727(d)(1), 727(d)(3), 523(a)(2), and 523(a)(4), 1 might succeed. Having reviewed those submissions, I conclude that Hiersche cannot prevail under e...
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MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS DATED 5/7/93 FOR PARTIAL SUMMARY JUDGMENT AND SUMMARY JUDGMENT Two motions for summary judgment are before the court. The first is the Motion Dated 5/7/93 for Partial Summary Judgment filed by Reorganized CF & I Steel Corporation, formerly know as CF & I Steel Corporation, one of the reorganized debtors in this confirmed chapter 11 proceeding...
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OPINION DOES THE ONE YEAR PREFERENCE PERIOD FOR A NON-INSIDER TRANSFEREE, WHEN THE BENEFIT RUNS TO AN INSIDER CREDITOR, APPLY TO THESE FACTS? Facts. The underlying facts are not disputed. On December 14, 1976 the “Melvin M. Jelsema Irrevocable Charitable Religious Trust” (Religious Trust) was established with Robert Steed (Steed) as one of its Trustees. At all relevant times, he was Preside...
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MEMORANDUM OPINION Piper Aircraft Corporation has been designing, manufacturing and selling general aviation aircraft and associated spare parts *621 since 1937. Approximately 50,000 to 60,000 aircraft are still operational in the United States. Piper is attempting to reorganize under Chapter 11 of the Bankruptcy Code. Following confirmation of a plan, some of these plane...
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OPINION Before the court is the motion for summary judgment filed by the debtors, David A. Hebert and Dianne M. Hebert (the “Debtors”). The Debtors’ complaint seeks to avoid the $28,000 attachment made on the Debtors’ home by S.S. Hartwell & Co., Inc. (“Hart-*638well”). The complaint seeks to avoid the attachment as a preference based upon the Debtors’ preference avoidance rights under section ...
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162 B.R. 841 (1994) In re Emil NOURBAKHSH and Marlene Nourbakhsh, Debtors. Emil NOURBAKHSH, Appellant, v. John GAYDEN, Jr., and Miriam Gayden, Appellees. BAP No. SC-92-1615-AsRO. Bankruptcy No. 90-05884. Adv. No. 90-90529. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted March 17, 1993. Decided January 10, 1994. *842 Bernard Edwin Galitz, Poway, CA, for debtors/...
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MEMORANDUM OPINION This matter comes on to be heard upon the complaint of Norwest Bank of Iowa, N.A. d/b/a Norwest Card Services (“Norwest”) asking that its debt in the principal amount of $5,177.57 against Harvey W. Orndorff (“Debtor”) be declared nondischargeable pursuant to Section 523(a)(2)(A). This Court having heard the testimony of the witnesses, having examined the documentary evi...
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MEMORANDUM OPINION The issue before the Court involves the objections of NationsBank of D.C., N.A. (the “Bank”) to certain exemptions claimed by John W. Hanes, Jr. (the “Debtor”) in his Amended Schedule C. Specifically, the Bank contends that the Debtor may not exempt from the bankruptcy estate two televisions, a “stereo system,” and a video cassette recorder (“VCR”) under the Virgini...
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MEMORANDUM OPINION This constitutes the court’s decision on a motion by Stanbec, Inc., a partner in the debtor partnership, to reopen the debtor’s chapter 11 case, for damages under 11 U.S.C. § 303(1), and for sanctions under Federal Rule of Bankruptcy Procedure 9011. This court has jurisdiction under 28 U.S.C. §§ 1334(b), 151, and 157(b)(1). This is a core proceeding under 28 U.S.C. § 157(b)...
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MEMORANDUM OPINION ON MOTION TO DISMISS COUNTERCLAIM This Adversary Complaint relates to the bankruptcy proceeding of debtor Jeffrey E. *321Grossman (“Grossman”) now pending under Chapter 7 of the Bankruptcy Code, Title 11 U.S.C. The plaintiff group of bank entities (collectively “Westbank” or “Westbank entities”) sued Grossman in this Adversary proceeding. He counterclaimed. His Amended Counter...
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MEMORANDUM OPINION The Debtor initiated this adversary proceeding by filing a Complaint to Determine Dischargeability of Debt (the “Complaint”) on December 3, 1992. The issue before the Court is whether certain income tax deficiencies assessed by the Internal Revenue Service (the “IRS”) against the Debtor in the amount of $262,389.00 plus interest and penalties (the “Tax Debt”) are ex...
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OPINION AND ORDER Before the Court is a Motion to Dismiss the above-captioned adversary proceeding filed by the Defendant, Internal Revenue Service, (hereinafter “Defendant”). For the reasons provided herein, the Motion is granted. This matter is initially before the Court on a Complaint to Recover a Preference filed by the Debtor, John W. Dowdle, (hereinafter “Plaintiff’), seeking the retu...
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MEMORANDUM AND DECISION ON MOTION FOR SUMMARY JUDGMENT The Plaintiff and Debtor, LTV Energy Products Company (“LTV”), commenced this adversary proceeding to recover $22,517.60 from the Defendant Northern States Contracting Company, Inc. (“Northern”), and to expunge Northern’s claim in the amount of $1,727,240.65. LTV’s claim against Northern represents the unpaid purchase price for certai...
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ORDER SUSTAINING OBJECTION TO EXEMPTION OF SALARY ACCOUNT Gregory Manning, a codebtor in this case (“Debtor”), declared $4200 in a Great Western bank account as exempt under Florida Statutes § 222.11 (“F.S. 222.11”). The Trustee objected on the grounds that the money in the account was earned by the debtor as an independent contractor, not as an employee, and was therefore not exempt. For the...
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MEMORANDUM AND ORDER ON COMPLAINT FOR VIOLATION OF 11 U.S.C. § 525(a) The sole issue is whether I have authority to hear a § 525(a) proceeding brought by the non-debtor associates of a corporate chapter 7 debtor. For the reasons that follow, I conclude that I do not. BACKGROUND This case was commenced under chapter 11 on September 12,1991. On December 26, 1991, it was converted ...
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OPINION Introduction Before the Court for consideration is the request for approval of the Disclosure Statement (“Disclosure Statement”) filed by Glass Plaza Associates (“GPA”). The Disclosure Statement has elicited numerous objections. Among the objectors are Market Square Inn, Inc. (the “Debtor”) and David Lichtenstein (“Lichtenstein”), the Debtor’s President and sole share...
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*273 MEMORANDUM AND ORDER Debtor objects to the claim of Dellwood Corporation (“Dellwood”) on several bases. Debtor objects to the $1,300 legal fee. Dell-wood has indicated that it will supply an itemized statement as to the fee claimed and that matter will be further addressed if not settled. Debtor also objects to Dellwood’s claim for the $60 filing fee for the filing of a motion for relief fr...
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OPINION The debtor, Edith Helga Beatty, requested dismissal of her Chapter 13 case following the bankruptcy court’s oral decision granting a motion to convert but prior to the entry of a written order. The bankruptcy court entered orders vacating the dismissal nunc pro tunc and entered an order converting the case. The debtor appeals. We REVERSE the bankruptcy court’s decision. F...
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MEMORANDUM OPINION The matter before the court is Debtors’ “Motion to Reopen Case to Enforce Discharge Injunction and Impose Sanctions for Actions in Violation and Contempt Thereof’. For the reasons which follow the motion will be denied. Frank A. Arone was scheduled in Debtors’ bankruptcy petition as a secured creditor and listed on the mailing matrix. 1 Although Ar-one’s liability as a co...
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MEMORANDUM OPINION This matter is before the court on the chapter 7 trustee’s motion for partial summary judgment and the State of Oregon’s Senior and Disabled Services Division of the Department of Human Resources’ motion for summary judgment. Although through their supporting documents the parties have sniped at each other about certain facts the legally relevant facts are undisputed; c...
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MEMORANDUM OPINION This adversary proceeding relates to the bankruptcy petition of Elmer and Linda *329 Schreiber (“Schreibers” or “Debtors”) filed under Chapter 11 of the Bankruptcy Code, Title 11 U.S.C. Their Plan was confirmed. Pursuant thereto, their house was later sold. The net proceeds of that sale are here in dispute. The United States asserts a tax lien against t...
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MEMORANDUM OPINION The debtor, Joe Linn Mills, appears by his attorney, Stephen B. Angermayer of Klenda, Mitchell, Austerman & Zuercher, Wichita, Kansas. The defendant, Marilyn Mills, appears by her attorney, Eric D. Bruce of Bruce & Davis, Wichita, Kansas. In-response to debtor’s Complaint to Determine Dischargeability of Debts incurred in a divorce action, Marilyn Mills, his fo...
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MEMORANDUM OF DECISION I. INTRODUCTION Chapter 7 Trustee Richard A. Marshack (“Trustee”) filed an action to avoid and recover preferential transfers totalling approximately $135,000.00 made by BILL L. WALTERS (“Debtor”) to WELLS FARGO BANK as Trustee under the Trust dated November 10, 1977, aka GETTY TRUST, aka NISA TRUST (“Defendants”). Trustee contends that each of these tr...
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ORDER DENYING MOTION FOR EXPENSES AND FEES This matter is before the court upon the defendant’s Motion For Expenses And Fees On Failure To Admit, the Memorandum of defendant and the Memo Contra by plaintiff/debtor.’ Defendant/creditor’s counsel relies upon Fed.R.Civ.P. 37(c) which reads as follows: If a party fails to admit ... the truth of any matter as requested under Rule 36, and if the party r...
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OPINION ON DISCHARGEABILITY OF UNEMPLOYMENT TAX The issue is whether unemployment contributions owed to the Michigan Employment Security Commission (MESC) are taxes allowable under a § 507(a)(7) priority and hence nondischargeable under § 523(a)(1)(A). I hold that they are. On September 30, 1991, the Debtor filed a voluntary petition for relief under chapter 7 *106 o...
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MEMORANDUM OPINION AND ORDER THIS MATTER came before the Court upon the Debtors’ Motion to Confirm Amended Chapter 13 Plan filed November 23, 1993, and the Objection thereto filed by Len Larson on December 10, 1993. On February 12, 1993, the Debtor, Rebecca Lopez, pawned certain jewelry with Len Larson and received the sum of $1,526.00. The pawn ticket, or receipt, after the name, address, te...
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MEMORANDUM OF DECISION This case is before the Court on the debt- or’s objection to the claim of the Internal Revenue Service. Initially, the debtor contested the accuracy of both the original amount claimed and the amount now claimed, but the parties have resolved those issues through concessions made in their respective briefs. The remaining issue deals with 11 U.S.C.A. § 346(a) and (i)...
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MEMORANDUM The matter is before the Court on the First Application (the “First Application”) of Counsel for Debtor for Allowance of Interim Compensation and Reimbursement of Expenses for the Period July 8, 1993 through October 31, 1993. The Applicant requests compensation in the sum of $286,622.00 and reimbursement of expenses in the amount of $66,184.43. On January 11, 1994, the Court held a he...
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MEMORANDUM I. INTRODUCTION Thomas G. Chiodetti and Karen A. McDonald (the “Debtors” or the “Plaintiffs”) commenced the above-captioned adversary proceeding on April 27,1993 by filing a three *7 count complaint against First Lake Corporation, a/k/a Diversified Financial Systems, Inc. (the “Defendant”). 1 In count I of their complaint, the Plaintiffs allege the following: 1) that the Defend...
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MEMORANDUM I. INTRODUCTION On September 13, 1993, the Chapter 7 Trustee (the “Trustee”) of the estate of John M. Moran (“Moran” or the “Debtor”) filed a Notice of Intended Public Sale with respect to real property located at 61-63 Savin Hill Avenue, Dorchester, Massachusetts in which the Debtor has an interest. The notice informed creditors that objections to the sale had to be filed with the...
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*859 ORDER DENYING MOTION TO DISMISS Appellee Walter T. Thompson, Ch. 7 Trustee, (“Trustee”) filed a motion to dismiss this appeal based on an untimely notice of appeal, contending appellant filed the notice of appeal beyond the time limits of Federal Rules of Bankruptcy Procedure 8002 and 9023. The order on appeal denied appellant’s motion to reconsider the bankruptcy court’s app...
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OPINION 1 Introduction On August 21, 1992 (“Filing Date”), Earl L. Brace and Martha J. Brace (“Debtors”) filed a voluntary Petition under Chapter 12 of the Bankruptcy Code. Before the Court is the Debtors’ Motion for Determination of Secured Status. The Farmers Home Administration (“FmHA”) has filed a Proof of Claim which asserts a secured claim in the amount of $707,195....
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DECISION PARTIALLY GRANTING UNITED STATE’S MOTION FOR SUMMARY JUDGMENT AND GRANTING SUMMARY JUDGMENT IN FAVOR OF THE TRUSTEE In its prior decision in the above-captioned adversary proceeding, In re Wolensky’s Limited Partnership, 163 B.R. 615 (Bankr.D.D.C.1993), this court set forth an analysis of the issues it found to be pertinent to the resolution of who was entitled to ...
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MEMORANDUM OF OPINION AND ORDER I. In this voluntary Chapter 7 proceeding, Brian A. Bash (the Trustee) seeks the recovery of certain preferential transfers made by The George Worthington Company (the Debtor) within the ninety-day period prior to bankruptcy petition filing. Defendant, American Tool Companies, Inc. (ATC) caused to be filed its motion for summary judgment. The issue to be resolved...
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT • On June 22, 1993, plaintiffs David Gerald Bishop and Nancy Cecile Bishop (“Mr. Bishop;” “Mrs. Bishop;” “debtors”) filed their complaint commencing this adversary proceeding against the United States of America ex rel. Internal Revenue Service (“USA”). The document was titled “Complaint to Determine Dischargeability of Federal Income Tax.” The body of t...
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DECISION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT Salem Five Cents Savings Bank (“Salem”) brought this complaint seeking a determination of its secured status and for turnover and an accounting as to 17 notes and mortgages which were the subject of a prior motion for relief. Paul J. Grella (“Trustee”) has agreed that 16 of the 17 notes and mortgages described in the complaint are subject to valid ...
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*78 MEMORANDUM OPINION In this chapter 11 case, the debtor sold at public auction real property which was subject to a deed of trust held by Crestar Bank. The court’s order of sale provided for sale free of all liens, and the net proceeds after closing costs were paid to Crestar Bank in partial satisfaction of its deed of trust loan. Unfortunately, the realty was also subject...
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MEMORANDUM This adversary proceeding is before the court on motions for summary judgment filed by the plaintiff and the defendant. The plaintiff is the bankruptcy trustee for The Custom Center, Inc. He brought this suit against the Internal Revenue Service (the IRS) to collect a tax refund. He also asks the court to disallow the IRS’s claim until it pays the tax refund. In response to the...
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OPINION A INTRODUCTION Presently before the court is the motion of III ENTERPRISES, INC. V (“the Debtor”) requesting this court to find that no binding contracts exists, or, alternatively, to reject the purported executory contract (“the Motion”), between it and Pueblo Chemical, Inc. (“Pueblo”). Resolution of the Motion requires us to initially analyze and apply certain f...
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DECISION AND ORDER BACKGROUND On June 2, 1993, the Debtor, Richard F. DeCosmo (the “Debtor”), filed a petition initiating a Chapter 7 case. On his schedules the Debtor claimed a homestead exemption of $10,000.00 in his residence at 165 Brent-wood Lane, Fairport, .New York (“Brentwood Lane”). The Debtor also listed his former spouse, Terese DeRuyter (“DeRuyter”), as an unsecured credi...
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MEMORANDUM OPINION The Trustee of PC Systems, Inc. (“PC Systems” or “Debtor”) filed a complaint to *384 avoid preferential transfer pursuant to 11 U.S.C. § 547 against Stewart E. Fason (“Fa-son” or “Creditor”) on August 3, 1993. The Complaint is based upon a voluntary foreclosure on all of the assets of PC Systems by Fason on or about June 30, 1991. At the time of the for...
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ORDER — CROSS MOTIONS FOR SUMMARY JUDGMENT A pretrial conference on Plaintiffs’ Complaint was held on August 30, 1993. Plaintiffs, Steven C. and Mary C. Souers, appeared by their attorney, Jerrold Wanek. Defendant, Nevada Ready Mix, appeared by its attorney, Deborah S. Krauth. At the conclusion of the hearing, the Court set deadlines for the filing of cross motions for summary judgment. Suc...
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MEMORANDUM OPINION AND ORDER Debtors TIE/Communications, Inc. and Chatios Systems, Inc. object to the three claims of The Elbert A. Kaplan Living Trust totaling approximately $988,374. Consolidated with these proceedings is a related adversary proceeding Chatios filed against Elbert A. Kaplan and TX Technologies, Inc. This is the court’s decision after trial on these core matters, and after rem...
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ORDER Heard on January 6, 1994, on the Motion of Gruhn, Chambliss and Bahner, et al., for reconsideration of our November 10, 1993 Order allowing Trustee to recover excess payments to creditors, or in the alternative, to alter or amend judgment. The trustee objects on the ground that the motion is but a veiled attempt to circumvent Local Bankruptcy Rule 10(d), as the movants have *18 failed...
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MEMORANDUM The question raised by the plaintiffs motion for summary judgment is whether a previous state court fraud judgment should be given collateral estoppel effect in this dischargeability action under 11 U.S.C. § 523(a)(2). The court concludes that the judgment should be given collateral estoppel effect. FACTS On January 30, 1992, the plaintiff herein, Rally Hill P...
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OPINION 1 We have a coonskin cap, but can we pioneer? Can the Court do the extraordinary or are we limited to convention? The intent of the *285Congress under Chapter 11 of the Bankruptcy Code is to encourage reorganizations to save businesses, but does the proposal by the debtor, Lake Ridge Associates, go beyond this? Really, the facts in this proceeding are not in dispute. It is the applicat...
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OPINION I The bankruptcy court granted summary judgment in favor of the defendant in a nondischargeability action under Bankruptcy Code (“Code”) Section 523(a)(2) on the basis that the plaintiff had not advanced additional funds in connection with the extension or renewal of credit. We REVERSE and REMAND. II FACTS The appellant, Cho Hung Bank (“Bank”), held a junior lien on real prope...
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OPINION The debtor moved to vacate a default judgment of nondisehargeability and dismiss the underlying complaint based on defective service of process. At issue was whether the debtor’s attorney was served with a copy of the summons and complaint as required by Fed.R.Bankr.P. 7004(b)(9), which provides for service on the debtor by mailing copies of the summons and complaint to the de...
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MEMORANDUM OF DECISION AND ORDER The Debtor, Avery Eliseu (“Eliscu”), brought this matter before this court by filing an “Amended Motion of Debtor to Withdraw Waiver of Discharge, for Reinstatement of the Automatic Stay Pursuant to 11 U.S.C. [Section] 362(a), and for the Entry of an Order of Discharge” (“Amended Motion”). Later, after a hearing and order regarding the filing of a supporting mem...
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MEMORANDUM This matter came before the Court for trial on December 20, 1993, on the United States of America’s [hereinafter “Government”] Complaint to determine discharge-ability of tax liability under Sections 507 and 523. The matter was taken under advisement pending consideration of the relevant statutory and case law, as well as the evidence and Stipulations introduced at trial. Smith contends...
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MEMORANDUM OPINION I. INTRODUCTION Triskett Illinois, Inc., a secured and unsecured creditor of the Debtor, T.C. Associates Limited Partnership, initiated an adversary proceeding to determine the validity of an attorney’s lien asserted by Triskett’s former counsel, Carl F. Dixon and his law firm, Beeler, Schad & Diamond, P.C. (collectively, “Dixon”). Dixon asserts this state stat...
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MEMORANDUM OPINION The debtors, William Ernest Kobs (“Bill” or “Mr. Kobs”) and Linda Ann Kobs (“Linda” or “Mrs. Kobs”), appear by their attorney, Steven L. Speth of Stinson, Lasswell & Wilson, Wichita, Kansas. Emprise Bank, N.A. (“Emprise Bank” or the “Bank”), appears by its attorney, Gary E. Patterson of Morris, Laing, Evans, Brock & Kennedy, Chartered, Wichita, Kansas. On Augus...
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MEMORANDUM This matter comes before the Court on the United States’ Motion for Summary Judgment filed on November 23, 1993. The Debtor/Plaintiffs Response to United States’ Motion for Summary Judgment and Debtor/Plaintiff’s Cross Motion for Summary Judgment was filed on December 22, 1993. Statement of Fact The Internal Revenue Service [hereinafter “IRS”] prepared “substitute returns” for ...
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RULING ON DEFENDANT’S MOTION . TO DISMISS COMPLAINT I. . In this adversary proceeding the trustee for the chapter 7 consolidated cases of Colonial Realty Company, Jonathan Googel, and Benjamin Sisti (the debtors), utilizing various provisions of the Bankruptcy Code, seeks to recover $10,500 transferred from the debtors to the defendant, Allan Vlerebome. The de *432 f...
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ORDER ON MOTION TO DISMISS Before the Court is a motion of Kinjite Motors, Inc., the defendant in this adversary proceeding, to dismiss based on lack of subject matter jurisdiction. During hearing on the motion, the attorney for the plaintiff, WMR Enterprises, Inc., the reorganized company, ore tenus moved that should this court find that it has subject matter jurisdiction but that this is a ...
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MEMORANDUM After an extensive hearing of January 6, 1994, on the Motion of NCHP Property Management (“NCHP”) for relief from the automatic stay in order to evict the Debtor and her family from a federally-subsidized housing unit, we entered an Order providing that [t]he automatic stay shall remain in effect only if and only as long as the Debtor ... shall a. Make the monthly...
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ORDER ON MOTION FOR ADEQUATE PROTECTION This matter is before the court on the motion of Premium Service Corporation of Columbia (PSC) for adequate protection of its interest in unearned insurance premiums being held by the debtor’s insurance agent, Poe and Associates, in the amount of $6,317.00. The trustee, John Venn, opposes the motion. This case was filed under chapter 11 of the Bankrup...
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MEMORANDUM OPINION AND ORDER This matter is before the court on the motion of the Defendants, Loi Tran and Biomedcare Corporation under Fed.R.Civ.P. 60(b), made applicable to adversary proceedings in bankruptcy cases by Fed.R.Bankr.P. 9024, to vacate a default judgment entered by this court in an adversary proceeding brought by the Trustee against the Defendants. For the reasons stated below, t...
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OPINION AND ORDER DISMISSING ADVERSARY PROCEEDING This matter is before the Court upon Debt- or Gregory McDowell’s (the “Debtor”) response to this Court’s order requiring him to show cause why his adversary complaint against the Honorable Judge Thomas Hey-dinger (the “Judge”), Huron County Court of Common Pleas, and John Ball (“Ball”), Guardian of the Estate of Joseph Brisboy, under 11 U.S.C. §...
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OPINION AND ORDER OVERRULING MOTION TO EXTEND TIME FOR FILING NOTICE OF APPEAL This matter is before the Court on Blake and Thora Wendt’s (the “Wendts”) motion to extend time for filing a notice of appeal under Rule 8002(c). The Court finds that the Wendts’ motion is not well taken and should be overruled. FACTS In an opinion and order dated December 17, 1993, 162 B.R. 485, this Court gra...
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*397 ORDER This matter comes before the Court on the Motion to Require Lender to Accept Plan Note, filed December 29,1993, by IPC Atlanta Limited Partnership (hereinafter “Debt- or”). The lender in this dispute is the Federal Home Loan Mortgage Corporation (hereinafter “Freddie Mac”), which opposes the Debtor’s Motion. The matters involved herein constitute a core proceeding over which this...
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OPINION ON BURDEN OF PROOF UNDER § 528(a)(4) On April 29,1993, the Debtor filed a voluntary petition for relief under chapter 7 of the Bankruptcy Code. The Plaintiff was listed in the Debtor’s Schedule F as holding an unsecured nonpriority claim. The Plaintiff timely sued the Debtor for a determination that the debt, which was reduced to judgment in state court, is not dischargeable i...
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MEMORANDUM OF DECISION ON MOTION OF CHAPTER 7 TRUSTEE TO RECONSIDER ORDER CONVERTING CASE TO CHAPTER 13 The Chapter 7 Trustee, John 0. Desmond, has asked this Court to reconsider its order allowing the motion of the Debtors, John J. Jeffrey and Marsha Jeffrey, to convert this Chapter 7 case to one under Chapter 13 of the Bankruptcy Code. In support of his motion, the Trustee states that he di...
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MEMORANDUM OPINION On November 22, 1993 came on to be heard the motion of debtor to hold the United States of America (the Internal Revenue Service) (“IRS”) in contempt. Pursuant to Bankr.R. 7052, the following are the Court’s findings of fact and conclusions of law in connection with such motion. The Court has jurisdiction of this contested matter under 28 U.S.C. § 1334(b) and the General Or...
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*495 MEMORANDUM OPINION REGARDING OBJECTION TO PLAN On August 9, 1993, Barclays American Mortgage Corporation filed an objection to confirmation of the Debtors’ plan. Although there are several grounds for this objection, the only one which remains unresolved is set forth in paragraph two of Barclays’ objection, which states as follows: The debtor’s plan provides, in paragraph 3, that arr...
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MEMORANDUM OPINION ON THE MOTION OF UNITED STATES FOR SUMMARY JUDGMENT INTRODUCTION Debtor Gwendolyn R. Hutchins (“Debtor” or “Hutchins”) discharged much of her debt in a prior Chapter 7 bankruptcy. In this second bankruptcy proceeding, she filed for relief under Chapter 13 of the Bankruptcy Code, Title 11 U.S.C. She initially filed an unsecured claim herein on behalf of a cr...
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ORDER This matter comes before the Court on the three adversary proceedings commenced by Ralph M. Rogers (hereinafter “Debtor”) against Sara Jane Overstreet and Alan W. Connell (collectively hereinafter “Defendants”). The Debtor brought these actions alleging the Defendants violated the automatic stay of 11 U.S.C. § 362 on three separate occasions. The Court finds that the issues cont...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE was heard before the Court on the objection of Havoco of America, Ltd. *600 (“Havoco”), a judgment creditor in this ease, to certain assets claimed as exempt by the Debtor. In general, Havoco objects to three categories of assets claimed as exempt, those being an individual retirement account or “IRA”, a home in Destín, F...
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ORDER This case is before the court on Debt- or’s Motion to Designate Federal Home Loan Mortgage Corporation Pursuant to 11 U.S.C. § 1126(e) (the “Motion to Designate”). At the time the Motion to Designate was filed, the motion for relief from stay of Federal Home Loan Mortgage Corporation (“FHLMC”) was pending, as was Debtor’s Disclosure Statement. Both the motion for relief and the ...
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MEMORANDUM OPINION AND ORDER ON TRUSTEE’S OBJECTION TO EXEMPTIONS THIS CAUSE came on for consideration upon Trustee’s Objection to Exemptions. The Court upon considering the Objection of Trustee, together with the record, and legal briefs submitted through counsel for the parties, makes the following findings of fact and conclusions of law, based on this core proceeding: Debtors file...
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*619 ORDER ON OBJECTION TO REPORT AND NOTICE OF INTENT TO SELL PROPERTY OF THE ESTATE “AS IS, IN ITS PRESENT CONDITION” THIS IS a Chapter 7 case and the matter under consideration is an Objection to the Report and Notice of Intent to Sell Property of the Estate, filed by Stephen Meininger (Trustee), the trustee in charge of administration of this case. The Objection was filed by ...
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MEMORANDUM OF DECISION In a prior decision in this case, the court denied the debtor’s motion to avoid four judgment liens encumbering his residence pursuant to section 522(f)(1) of the Bankruptcy Code on the ground that there was no *574 equity in the residence. However, the debt- or has subsequently convinced the court that there is a small equity, perhaps $30,000.00 or so, in the residence...
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DECISION ON TRUSTEE’S MOTION TO EXPUNGE CLAIM # 82 FILED BY THE RIVER CLUB PARTNERSHIP The trustee in bankruptcy of the Croton River Club, Inc., a debtor which was converted from Chapter 11 of the Bankruptcy Code to Chapter 7, objects to the secured claim in the amount of $225,138.00 filed by the River Club Partnership (“River Club”) with respect to two fifty foot condominium slips which River Cl...
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ORDER GRANTING TRUSTEE’S MOTION TO STRIKE DEFENDANT’S DEMAND FOR A JURY TRIAL The plaintiff Trustee in this adversary proceeding filed a Motion To Strike Defendant’s Demand For A Jury Trial (the “Motion to Strike”). The sole issue presented is whether, by filing a proof of claim in this bankruptcy case, the Defendant waived his right to a jury trial on all counts of the complaint. BACKGROUND T...
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MEMORANDUM OPINION This matter is before the Court on the trustee’s motion to determine claims against surplus funds from a tax foreclosure sale of property of the estate. BACKGROUND In December of 1992, the Yakima County Treasurer conducted a tax foreclosure sale of real property of the estate, commonly known as “Tampico Lot 2”. The County proceeded with the sale without ha...
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MEMORANDUM ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND ON DEFENDANT UNITED STATES OF AMERICA’S MOTIONS TO DISMISS AND TO STAY ADVERSARY PROCEEDING The plaintiff, Cumberland River Coal Company (Cumberland), commenced this adversary proceeding on May 17, 1993. By its Complaint, Cumberland seeks a declaration that the United States Department of Labor (DOL) is prevented from imposing ...
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MEMORANDUM OF DECISION The chapter 7 trustee has filed the present motion to require Neil and Mary Russell (collectively, “debtors”) to turn over to the trustee a parcel of real property. The debt *585 ors maintain the property is subject to an exemption. Debtor Mary Russell 1 was previously married to Steven B. Mortensen (“Mortensen”). Mary Russell and Mortensen obtained a divorce, and M...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for trial on December 7, 1993, on the Plaintiffs Amended Complaint under 11 U.S.C. §§ 547(b), 548(a)(2), and under C.R.S. § 7-62-101, et seq., the Colorado Uniform Limited Partnership Act (“CULPA”). Plaintiff alleges that this Court has jurisdiction over this action under 28 U.S.C. §§ 1334 and 157. He also asserts that this ...
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DECISION ON MOTION BY NAVISTAR FINANCIAL CORPORATION FOR SUMMARY JUDGMENT Navistar Financial Corporation (“Navis-tar”), the holder of a judgment against the defendant Chapter 7 debtors, Michael Anthony Stelluti and his wife, Joanne Stelluti, has moved pursuant to Federal Rule of Civil Procedure 56 and Bankruptcy Rule 7056 for summary judgment of Navistar’s causes of action for nondischargeabi...
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MEMORANDUM OF DECISION The debtors filed their chapter 13 petition in this Court on November 24, 1993. On December 2, 1993, the debtors filed a motion entitled “Motion for Contempt and Sanctions; Return of Property of the Estate; and Notice of Hearing.” This motion alleges that on December 1, 1993, the Idaho Central Credit Union (“ICCU”) placed a “freeze” upon funds in the debtors’ share ...
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I. INTRODUCTION The issue before this Court on cross-motions for summary judgment is whether consumer debtors can use Section 506 of the Bankruptcy Code to “strip down” tax liens on their house in a Chapter 11 case. The Internal Revenue Service (IRS) argues that the holding in Dewsnup v. Timm, 502 U.S.-, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), should be extended to Chapter 11 cas...
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ORDER — MOTION FOR RELIEF FROM STAY Hearing was scheduled on the Motion for Relief From Stay on November 19, 1993. Debtor, Stephen K. Thielking, was represented by his attorney Michael L. Jankins. Creditor, G. Dean Garland, and Receiver, Richard W. Kemler, were represented by attorney Robert B. Hanson. Deborah L. Petersen appeared as the Chapter 7 trustee. At the conclusion...
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MEMORANDUM OF DECISION PLEADINGS I. In this adversary proceeding, the plaintiffs’ complaint alleges the defendant, Hoff Companies, Inc., f/d/b/a Western Forest Products, received transfers which constitute preferential transfers under the provisions of 11 U.S.C. § 547. Specifically, the complaint alleges that within 90 days prior to the filing of the debtors’ chapter 11 peti...
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A jurisdictional challenge is made to Trade Finance Bank’s [hereinafter “Debtor’s”] eligi*559bility as a Chapter 7 debtor based on the following provision: A person may be a debtor under chapter 7 of this title only if such person is not a domestic insurance company, bank, savings bank, cooperative bank, savings and loan association, building and loan association, homestead association, credit uni...
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ORDER ON MOTION FOR RELIEF FROM ORDER TO PAY TRUSTEE CAME ON for consideration the motion of the Public School Retirement System of Missouri for relief from a “pay order” entered in this case. Pay orders are routine practice in chapter 13 cases in this district, and are issued pursuant to 11 U.S.C. § 1325(c). PSRS maintains that it should not have to honor such an order because the source of inco...
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OPINION This dispute arises as a result of the uncertain status of an executory contract prior to its assumption or rejection. Presented are issues of unjust enrichment. Putnam Lovell, Incorporated (“Putnam Lovell”) has filed a claim, later amended, in the sum of $210,000, for which it asserts an administrative expense priority under section 507(a)(1) of the Bankruptcy Code. Alternati...
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DECISION AND ORDER ON TRUSTEE’S APPLICATIONS TO EMPLOY PARAPROFESSIONALS CAME ON for hearing the Application of Andrew B. Krafsur, Chapter 7 Trustee, to Employ Paraprofessionals. The United States Trustee objected. Upon consideration thereof, the court finds and concludes as follows. JURISDICTION This court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b...
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City Mattress, Inc., the debtor in possession, has moved to employ the law firm of Damon and Morey as its counsel in this Chapter 11 proceeding. In the application for appointment, counsel disclosed that it had received a cash retainer of $15,000, together with a collateral mortgage to secure up to $85,000 of additional fees and disbursements. This mortgage encumbers real property that the debt...
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ABSTRACT OF JANUARY 19, 1994 BENCH RULING ON DEFENDANT’S MOTION TO DISMISS ADVERSARY PROCEEDING This dispute involves a lessee’s alleged failure to, inter alia, pay rent, return certain computer equipment (the “Equipment”) or to otherwise perform under a certain lease (the “Lease”) of such Equipment. The Lease was originally executed by Atlantic Computer Leasing Systems, Inc., ...
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MEMORANDUM OPINION AND ORDER Dudley B. Durham, Jr. and Barbara L. Durham, husband and wife, and their farming and trucking corporations, Double D Farms, Inc. and L. B. Trucking, Inc. filed *714 Chapter 11 petitions on December 20, 1983. Later, these eases were consolidated. The Durhams originally filed their petitions to avoid as a preferential transfer a crop lien held b...
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*525 OPINION Prior to the Chapter 13 bankruptcy filing of debtor, Steven Grear, the Internal Revenue Service (“IRS”) levied against bank accounts and a life insurance policy owned by the debtor and became a secured creditor as to these assets. In his Chapter 18 plan, the debtor proposed to turn over the cash proceeds of the bank accounts and the insurance policy to the IRS without payment o...
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MEMORANDUM OF OPINION AND ORDER In this voluntary Chapter 11 case, Louis Meyers Wermelskirchen and Dorothy S. Wermelskirchen (the Debtors) presented their proposed plan of reorganization (the Plan) for confirmation. Upon an evidentiary hearing of the matter, a review of the evidence adduced, and the record, generally, the following findings and conclusions are made: I. The Debtors sought ...
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OPINION Before the Court is the Motion of Ruth Segal (“Ruth Segal”) for Relief from the Automatic Stay Pursuant to 11 U.S.C. § 362(d) to permit her to liquidate certain stock in a company known as Giftco, Inc. (“Giftco”). The Stock in question is owned by the Debtor and is alleged by Ruth Segal to serve as collateral for Ruth Segal’s pre-petition loans to the Debtor. The motion is opp...
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MEMORANDUM ORDER DENYING EXEMPTION In re Gagne came on for hearing before the undersigned on the 1st day of December, 1993, and In re VanKirk came on for hearing before the undersigned on the 29th day of December, 1993, both on the trustee’s objection to claimed exempt property. Appearances were as follows: Julia Christians as and for the trustee (“trustee”) in both ...
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MEMORANDUM Hearing was held on January 19, 1994, on the Motion to Assume Agreement with the Abbott Bank (Abbott). Appearing on behalf of debtor were John Brownrigg and Michael Washburn of Erickson & Sederstrom, Omaha, Nebraska, and David Buelt of Omaha, Nebraska, and David Crawford of Schmid, Mooney & Frederick, P.C., Omaha Nebraska. Appearing on behalf of Abbott were Jerrold Strashei...
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OPINION Defendant/Debtor has brought a Motion to Dismiss the Complaint of Tandy Credit on the grounds that the Plaintiff is not a corporation which exists in, or is licensed to do business in the State of Maryland. Apparently, the Movant is asserting the “door closing” statute of Maryland found in Section 7-301 of the Corporations and Associations Article of the Annotated Code of Maryland. This...
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MEMORANDUM Before the Court is the Trustee’s Motion to Enforce Settlement Agreement. On March 17, 1992, the Trustee filed a Complaint against C.B. Hannay Co. (“Hannay”) to recover $17,050.85 in freight tariff undercharges and $1,453.08 in unpaid accounts receivable. On April 15, 1992, Hannay served its answer and paid $1,453.08 to the Trustee for accounts receivable. After this Court entere...
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DECISION AND ORDER Heard on January 11, 1994, on the complaint of the Estate of Margaret Ekelund to declare nondischargeable, pursuant to § 523(a)(4), a $52,547.52 Judgment and Execution issued on September 20, 1989 against the Debtor, J. Colin Dawson. At the conclusion of the hearing, and based upon the evidence adduced, we ruled that the debt in question was incurred as a result of defalcation...
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ORDER IMPOSING SANCTIONS FOR CAUSING UNNECESSARY LITIGATION On November 23, 1993, this Court was required to conduct a hearing to determine why an overdue stipulation or consent order settling the captioned adversary proceeding1 had not been filed, as promised. At the hearing, it became obvious that the reason for the failure of the parties to file the promised settlement stipulation turned on ...
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MEMORANDUM OF OPINION ON HOMESTEAD In this adversary proceeding the Debtor, Nick Julian, seeks to set aside a lien claimed by the Federal Deposit Insurance Corporation (FDIC) on property at 744 and 750 East Jefferson Blvd., Dallas, Texas. Mr. Julian asserts that the property is both his residential and business homestead. 1 This case presents a myriad of issues, which the cou...
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MEMORANDUM OPINION This matter comes before the Court on the motion of debtor Keith R. Leigh, (the “Debt- or”) for summary judgment pursuant to Federal Rule of Civil Procedure 56, incorporated by reference in Federal Rule of Bankruptcy Procedure 7056, on the complaint of Union National Bank of Marseilles (the “Bank”) to determine the dischargeability of a certain debt owed it by the D...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the matter under consideration is a Complaint filed by James M. Williams, Jr. and Carroll Williams (Debtors) in which they seek a determination of the dischargeability of their federal income tax liabilities for the tax years 1980 through 1984 (excluding 1982). The United States of America through the Inter...
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*449 ORDER By adversary proceeding, Sheryl Hudson, debtor in the above referenced Chapter 13 case seeks a determination of contempt against the United States of America by and through its agency the Internal Revenue Service (“IRS”). In essence, the debtor alleges a violation of the stay of 11 U.S.C. § 362(a). Based upon the evidence presented at trial I make the following findings of fact a...
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ORDER Johnny L. Hudson, debtor in the above referenced Chapter 13 case, filed this adversary proceeding against the United States of America acting by and through its agency the Internal Revenue Service (“IRS”) seeking a finding of civil contempt — in essence alleging a violation of the stay of 11 U.S.C. § 362(a). Based upon the evidence presented at trial I make the following findings of fac...
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*770 MEMORANDUM OPINION I. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 167(b)(2)®. II. FACTS Ricky Lee Bingham, d/b/a Bingham Oil & Gas (“Bingham”), became the operator of several wells on two different leases, the Duvall Brothers Lease and the Munger lease. The leases had eff...
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REVISED 1 ORDER The Chapter 7 trustee of the T.L. Welker and Virginia Dale Welker bankruptcy estate has moved the court for authority to sell real property free and clear of all liens and encumbrances and for approval of a contract of sale. The United States Department of Housing and Urban Development objects to the trustee’s request on the grounds that the sale will violate HUD’s statutory...
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MEMORANDUM OPINION ON MOTION TO DISMISS FACTS The plaintiffs have filed a dischargeability complaint against the defendants/debtors under § 523(a) of the Bankruptcy Code and have named as defendants John Boylan and Jane Doe Boylan who are non-debtors. The Boylans have moved to dismiss for lack of subject matter jurisdiction. In counsel’s memorandum in opposition to the motion, plaintiffs ...
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MEMORANDUM OPINION On January 22, 1993, Alfred Mirulla, the debtor and respondent herein, filed a voluntary petition under Chapter 7 of the Bankruptcy Code. In his petition, the debtor claimed a homestead exemption of $30,000.00 pursuant to N.H. RSA 480:1. On March 25, 1993, within the period for filing objections to claimed exemptions, the movant, a creditor holding a judicial lien and a p...
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OPINION This is a preference action. The principal issue raised is whether a pattern of late payments following dunning calls places the payments “in the ordinary course of business ... of the debtor and the transferee,” within the meaning of section 547(c)(2)(B) of the Bankruptcy Code. Stanley Miller (the “Trustee”), as trustee of the bankruptcy estate of A.J. Lane & Co., Inc. (“Lane...
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MEMORANDUM DECISION This matter is before the Court on an adversary proceeding commenced by Plaintiff, Richard D. Smith, Jr. (“Plaintiff’ or “Smith”) against Chapter 7 Debtor, Dana Edward Cunningham (“Debtor”), to determine dischargeability of an obligation under §§ 523(a)(2)(B) and 523(a)(6) and to deny Debtor’s discharge under § 727(a)(7). The parties submitted two joint pre-trial s...
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MEMORANDUM OPINION AND ORDER The chapter 7 came on for hearing before the Court on January 10, 1994. The issue before the Court is whether a portion of the net proceeds of the settlement which is attributed to lost future earnings is exempt from property of the estate under 11 U.S.C. § 541(a)(6). Under 11 U.S.C. § 541(a)(6) the bankruptcy estate includes “proceeds, product, offspring, rents o...
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Claims were filed by a number of individuals and firms who performed services for the debtor (“Wang”) other than as employees. Wang objected to the claims as to the alleged priority only. Wang concedes that the amounts claimed are in fact due. Wang and the claimants agree that the claimants are all independent contractors having no employer/employee relationship to Wang. Wang does not cont...
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MEMORANDUM OF OPINION ON EXEMPTIONS The issue before the court is whether various items of equipment constitute tools or equipment of the Debtors’ trade, which they may exempt under Texas law. The court finds that the items may be claimed as exempt. 1 *70 FACTS Freddy M. Legg and Nancy R. Legg (Debtors) filed for relief under Chapter 7 of the Bankruptcy Code on October 27, 1993. Floyd D...
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ORDER By motion, Nissan Motor Acceptance Corporation (“Nissan”) seeks to reopen this Chapter 13 cáse, to have debtors’ discharge vacated, to amend its previously filed proof of claim, and to have a trustee appointed to administer distributions for the remaining period of the Chapter 13 plan. After having heard and considered the evidence presented, I enter the following order denying Nissan’s...
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DECISION ON MOTION FOR CERTIFICATION OF CLASS ACTION AND RELATED MATTERS The law firm of Levy Phillips & Konigs-berg (“Levy Phillips”) filed identical proofs of claim in this matter on behalf of Daria Cer-venka and Melissa Scialabba (collectively “Claimants”). The claims purport to be filed on behalf of the Claimants “individually and as class representatives for all persons who used...
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DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Joan Arndt, (the “Plaintiff’), brought an adversary proceeding against Steven Hanna, (the “Debtor”), a Chapter 7 debtor, seeking a determination that an arbitration award (“Award”) against him rendered in the amount of $85,540.25 and confirmed by the Supreme Court of the State of New York, was nondischargeable under section 523(a)(2) of ...
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MEMORANDUM OPINION The issue in these cases is whether 11 U.S.C. § 1322(b) prevents the debtor from modifying the rights of a secured lender who holds a mortgage on a house which was, at the time the loan was granted, the debtor’s primary residence but, at the time of the bankruptcy filing, was no longer the debtor’s homestead. The issue has arisen in both eases in the context of confirmation o...
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DECISION AND ORDER INTRODUCTION George Ryan and Gloria E. Funaro (the “Plaintiffs”) brought on the instant motion for summary judgment in this adversary proceeding. They are seeking a determination of their rights to notes and proceeds thereof, secured by deeds of trust on real property held by Sprint Mortgage.Bankers Corp. (the “Debtor”), which was operating in the secondary...
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OPINION AND ORDER New Brunswick Savings Bank, (hereinafter “Bank”), has filed a Motion requesting this Court to issue an Order directing that certain monies held in an escrow account be paid over to it. The escrow account was created as a result of the efforts of the Chapter Seven Trustee in this case in selling property free and clear of liens. According to the settlement sheet ...
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MEMORANDUM OPINION This adversary proceeding for determination of the dischargeability of a debt came before the Court on December 13, 1993, for hearing on the parties cross motions for summary judgment. Upon, the moving and responsive documents, record made at hearing and the other files and records in this adversary proceeding, the Court grants plaintiffs motion for summary judgment and den...
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MEMORANDUM OPINION INTRODUCTION Before the court is a motion by the defendant Travellers International AG. (“Travel-lers”) to dismiss both counts of an adversary complaint brought by the debtor, Trans World Airlines, Inc. (“TWA”). By its complaint, TWA seeks a declaration that a $13,-693,100.42 deposit which it made pre-petition was a preferential transfer under Section 547 of th...
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MEMORANDUM OPINION Plaintiff filed a motion for summary judgment on his complaint to except debt from discharge pursuant to 11 U.S.C. § 523(a)(2), (4) and (6). In support of the motion plaintiff relies upon a state court consent judgment against debtor and the doctrine of collateral estoppel. For reasons stated in this opinion the motion will be denied. Findings of Fact ...
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MEMORANDUM DECISION DENYING DEBTOR’S RULE 60(B)(6) MOTION FOR ORDER MODIFYING STIPULATION AND ORDER AL & LP Realty Co. (“debtor”) has moved this court pursuant to Fed.R.Civ.P. 60(b)(6), as made applicable herein by Bankruptcy Rule 9024, for an order modifying a so-ordered stipulation among debtor and Arch Assets, Inc. (“Arch”), its largest creditor. Because debtor has not demonstrated...
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MEMORANDUM OPINION Hearing was held on November 23, 1993, on the motion of Berlin-Miles-Richels, Inc., (BMR) and Berlin-Miles-Richels Investments, Inc., (BMRI) to dismiss plaintiff chapter 7 trustee’s complaint to avoid a fraudulent transfer of property pursuant to 11 U.S.C. §§ 544(b), 548(a) and 550(b). The motion to dismiss alleges lack of subject matter jurisdiction and failure to state a ...
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DECISION This matter comes before the Court on cross-motions for summary judgment. The plaintiff is John W. Richardson, Chapter 7 Trustee (“Trustee”) in the bankruptcy case of M. Blackburn Mitchell, Incorporated, dba Mitchell Development (“Debtor”). The defendant is the Federal Deposit Insurance Corporation (“FDIC”), which is sued in its corporate capacity. The issue before the C...
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DECISION AND ORDER ON CONFIRMATION OF CHAPTER IS PLAN I. ISSUE The debtors in this Chapter 13 ease contend that notwithstanding the holding of Nobelman v. American Savings Bank, — U.S. -, -, 113 S.Ct. 2106, 2108, 124 L.Ed.2d 228 (1993), that Bankruptcy Code § 1322(b)(2) “prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an un-dersecured homestead mortgage to the fair ma...
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MEMORANDUM OPINION This matter comes before the Court on the “Joint Cross-Motion for Partial Summary Judgment on the Amended Motion of Che-quers Investment Associates II for Relief from the Automatic Stay and for Other Relief.” The Debtor, Churchill Properties VIII Limited Partnership, an Illinois limited partnership (Churchill), is represented by Attor *608 neys Keith Sh...
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DECISION ON MOTION TO DISMISS SECOND AND SOLE REMAINING CLAIM FOR RELIEF AND TO EXPUNGE PLAINTIFF’S PROOF OF CLAIM (CLAIM NO. 833) PARTIES The Plaintiff, Howard P. Goodman [hereinafter “Goodman” or “Plaintiff’], seeks severance pay and damages from the Debtors-Defendants under the Worker Adjustment and Retraining Notification Act [hereinafter “WARN”]. (29 U.S.C. §§ 2101-2109....
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*280 MEMORANDUM The question presented is whether a tardy claim is allowable in a Chapter 13 case. Late filing does not require disallowance. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I Connie and Sandra Gullatt filed Chapter 13 on February 11, 1993. Pursuant to Bankruptcy Rule 3002(c), 1 timely proofs of claim were due before June 16, 1993. On Au...
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MEMORANDUM OPINION The chapter 7 trustee seeks pursuant to 11 U.S.C. § 544(a)(1) to avoid the security inter*54est of defendant Colonial Pacific Leasing Company (hereinafter “CPL”) in two equipment leases. According to the chapter 7 trustee, CPL’s security interest may be avoided pursuant to this court’s holding in In re Funding Systems Asset Management Corporation, 111 B.R. 600 (Bankr.W.D.Pa.1...
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MEMORANDUM OPINION This matter comes before the Court on Keith L. Sowers’s (“Sowers’s” or “The Debt- or”) renewed motion for sanctions against Mark Fleckenstein (“Fleckenstein”), his law partner Mark Ames, and Fleckenstein’s clients, Drs. Maughan & Trice (collectively “The Defendants”). Upon consideration of the arguments of counsel and evidence presented at the October 19, 1993, hear...
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OPINION A trustee in bankruptcy brings this action to avoid allegedly fraudulent transfers made by a debtor to his wife. The most novel question presented is whether there was any transfer of property when the wife withdrew funds from the parties’ joint bank accounts. David J. Noonan (the “Trustee”), trustee in bankruptcy of David C. Rauh (the “Debt- or”), seeks to avoid four cat...
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SUPPLEMENTAL MEMORANDUM OPINION DETERMINING ESTATE’S INTEREST IN TRUSTS The Debtor in this Chapter 7 case scheduled certain property described as contingent unvested interests in various trusts. These trust interests were scheduled as exempt. GIAC Leasing Corporation (“Creditor”) filed an objection to the claim of exemption. Although framed as an objection to exemptions because of the form in w...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING REASONABLENESS OF COMPENSATION OF DOCUMENT PREPARATION SERVICES These Chapter 7 cases came on for a joint, consolidated evidentiary hearing on November 18, 1993, upon motions by the United States trustee to determine reasonableness of fees charged by various document preparation services utilized by the debtors for assistance in preparing each...
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OPINION This case raises the following question: If a corporation in sound financial condition delivers a promissory note for the purchase of its own stock, should the balance due on the note be equitably subordinated to other unsecured debt when the corporation later becomes insolvent and goes into bankruptcy years later? The question has particular significance for close corporation...
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ORDER ON MOTIONS TO REOPEN AND TO ADD CREDITORS Debtors Ronald L. and Lana Y. Renfro filed their Petition for relief under Chapter 7 on 26 August 1992. The Order and Notice re Meeting of Creditors, Deadlines, and Automatic Stay was entered 14 September 1992, and mailed the following day. Under “DEADLINES”, the Order and Notice provides: CLAIMS. DO NOT FILE A CLAIM AT THIS TIME. If assets are disco...
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OPINION AND ORDER ON REMAND This matter is before the Court pursuant to an order of remand entered by the district court. This Court’s prior opinion dealt with a variety of related issues which arose in these cases. In re Babbin, 156 B.R. 838 (Bankr.D.Colo.1993). Among those issues was the question of whether, in a Chapter 13 case, a proof of claim filed by an unsecured credito...
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MEMORANDUM OPINION Willie Battle, Debtor, filed a petition under Chapter 13 of the Bankruptcy Code on August 2, 1993. Camille Hope, Standing Chapter 13 Trustee (hereinafter “Trustee”), filed an “Objection to Claim” on December 9, 1993. Trustee contends that SunTrust Mortgage, Inc. is not entitled to payment of interest on its arrearage claim. SunTrust filed its response to Trustee’s o...
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OPINION This matter is before us on remand from a Memorandum/Order entered by The Honorable Louis H. Poliak of the United States District Court for the Eastern District of Pennsylvania on January 12, 1994. Judge Poliak had before him debtors’ appeal of our June 26,1992 order granting the motion filed *47 by Transamerica Consumer Discount Company (“Transamerica”) to conver...
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MEMORANDUM OPINION AND ORDER GRANTING TRUSTEE’S APPLICATION FOR APPROVAL OF FINAL DISTRIBUTION TO UNSECURED CREDITORS On February 8, 1994, a hearing was held on the Trustee’s Application for Approval of Proposed Final Distribution to Unsecured Creditors and the objection of Debtor David Green Property Management. 1 Trustee Danny Nelson represented himself. Debtor appeared by counsel Ronald ...
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*930 DECISION ON WHETHER TERMINATION OF ALLEGED EXECUTO-RY CONTRACT CONSTITUTED BREACH OF CONTRACT AND VIOLATED DEBTOR’S RIGHTS UNDER SECTION 365(e)(1) OF THE BANKRUPTCY CODE In this adversary proceeding, the Debtor (“Debtor” or “Nemko”) seeks damages in the amount of $500,000 for cancellation of a contract it contends it entered into with the Defendant Motorola Communications an...
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MEMORANDUM OP DECISION I. Introduction Cindy Ann MacDonald (“Plaintiff’) filed an adversary complaint in which she asserted that the transfer of her residence (“Property”) pursuant to a Marshal’s Sale upon a state court Writ of Execution and Levy, con *327 ducted April 1,1993, should be avoided under 11 U.S.C. § 548(a)(2)(A)' (1988) of the Bankruptcy Code (“Code”). ...
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ORDERS ON DEBTOR’S AND DEPARTMENT OF NAVY’S MOTIONS FOR SUMMARY JUDGMENT REGARDING DEBTOR’S ASSUMPTION OF GOVERNMENT CONTRACTS THIS CAUSE came on for hearing upon the Debtor’s motion to assume its executory contracts with the Department of Navy (Navy). Both the Navy and the Debtor filed cross-motions for summary judgment. The Court, upon considering the motions, affidavits, depositions an...
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*524 MEMORANDUM OPINION This matter comes before the Court on the December 28, 1993, motion by the committee representing the unsecured creditors of Brendle’s Stores, Inc., appointed pursuant to an Order by the Court. The committee seeks reimbursement of the out-of-pocket expenses incurred by its members in connection with attendance at official committee meetings. This Court fin...
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AMENDED OPINION Plaintiff Kemper Securities Group, Inc. filed the instant adversary proceeding in the name of the United States and on its own behalf to recover damages allegedly resulting from the failure of the chapter 7 trustee to timely object to the exemption claimed by debtors in certain pension and profit sharing plans worth approximately $430,000.00. Plaintiff seeks damages of $174,392....
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion by The St. Paul/Seaboard Surety Company and Allan J. Bentkofsky (“Defendants”) for summary judgment, dismissing the complaint filed in this adversary proceeding by Gary and Susan Slack, d/b/a Gary’s Riverside Diner (“Debtors”) on the basis that the Debtors lack standing to sue the ca...
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ORDER Defendants, Diamond Manufacturing Company, Inc. (“debtor”) and W. Jan Jankowski, Chapter 7 Trustee (“the Trustee”) in the underlying case, move for summary judgment as to all of plaintiffs claims in this adversary proceeding pursuant to Federal Rule of Civil Procedure (“FRCP”) 56 made applicable by Federal Rule of Bankruptcy *194 Procedure (“FRBP”) 7056. 1 ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court after Hearing on US Trustee’s Motion for Amended Order for Payment of Fees/Expenses. At the Hearing, the parties were afforded the opportunity to present evidence which they wished the Court to consider in reaching its decision. The Court has reviewed the pleadings as well as the entire record in the case. Based upon that review, ...
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MEMORANDUM OF DECISION ON TRUSTEE’S MOTION FOR PARTIAL DISTRIBUTION OF FUNDS I. ISSUES The present motion raises two issues — the first is whether a debtor’s no-fault automo *8 bile insurer who, prepetition, pays basic reparations benefits to the debtor is entitled to assert a statutory lien on the settlement proceeds received by the trustee, postpetition, i...
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Opinion Introduction All of the above matters revolve around a dispute between John M. Lutz (“Debtor”) and Miami Valley Bank (“Bank”) over the amount and status of the Bank’s claim. The parties agree that the threshold issue is whether the Bank’s first mortgage lien is “a claim secured only by a security interest in real property that is the debtor’s principal residence”...
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MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW Motel Investment Group, Inc. (“Debtor”) is a corporation formed to acquire a motel property (the “Motel”). The Motel was owned and operated by Michael Wu (“Wu”). Wu, together with John Huang, William Lin and Judy Chen, formed the corporate debtor as a vehicle to transfer the property to the new group who would then finance its rehabil...
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ORDER GRANTING MOTION TO DISMISS THIS CAUSE is before the Court upon the counterclaim defendants’ motion to dis*315miss, filed on December 27, 1993. This adversary proceeding was filed on November 4, 1993, upon the filing of Debtors’ “Motion for Turnover” against Bob Whorton and the Yell County Sheriff. Both defendants have answered the complaint. On December 13, 1993, the debtors filed a docume...
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ORDER GRANTING THE UNITED STATES MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon the cross-motions for summary judgment filed by the parties. The United States filed the response to the debtors’ cross-motion for summary judgment on January 14, 1994, at which time the matter was under submission. The debtors initiated this adversary proceeding on June 15,1993, seeking a determi...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint to determine the dischargeability of a student loan on the grounds of hardship. The matter was called for trial on February 9, 1994, the plaintiffs appearing by Connie Meskimen, and the defendant appearing with her attorney, Jack Dickerson. The Bankruptcy Code provides in pertinent part: ...
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OPINION AND ORDER These are two Adversary Proceedings in which fraud is alleged under 11 U.S.C. § 523(a)(2)(A) against Chapter 7 debtors. There is no commonality of parties, and the actions were tried separately. However, the Court has consolidated them for purposes of decision only, as they turn on a common issue of law. In the Sigrist case, Chemical Bank issued a “pre-approved” cre...
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AMENDED RULING ON OBJECTIONS TO FEE APPLICATIONS I. ISSUES This ruling deals with two of the final fee applications filed in these chapter 11 cases. The first issue is whether Zolfo, Cooper & Co. (Zolfo, Cooper), special financial advisor and bankruptcy consultant to C.F. Holding Corp. (Holding) and Colt’s Manufacturing Co., Inc. (Colt’s) (together, the debtors), breache...
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ORDER ON DEBTOR’S OBJECTION TO BERLINER HANDELS-UND FRANKFURTER BANK’S UNSECURED CLAIM AND MOTION FOR RECLASSIFICATION TO CLASS 1 SECURED CLAIM THIS CAUSE came on for hearing with notice to all parties of interest upon the Objection to Berliner Handels-Und Frankfurter Bank’s (BHF) Unsecured Claim and Motion for Reclassification to Class 1 Secured Claim filed by Immenhausen Corporation (Debtor)....
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case and the matters under consideration are cross-motions for summary judgment filed by Michael A. Cromer (Debtor) -and the Debtor’s former wife, Patricia Cromer (Plaintiff). The Motions were filed in connection with the Plaintiffs Complaint in which the Plaintiff seeks to except from the Debtor’s general discharge the debt allegedly...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion for Summary Judgment directed to Count III of a Complaint filed by W.H. Ford, as Trustee for himself and for his three children (Plaintiff) in the-above captioned adversary proceeding. In his four-count Complaint the Plaintiff originally sought a determination that the de...
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ORDER ON MOTION FOR RELIEF FROM ORDER GRANTING RENEWED MOTION TO ASSUME LEASE THIS IS a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion for Relief from Order Granting Renewed Motion to Assume Lease filed by Eugenia Newell (Newell), the former spouse of Michael Irwin (Irwin), the principal of Irwin Yacht Sales, Inc. (Debtor). In her Motion, Newell seeks r...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON MOTION TO AVOID LIEN THIS is a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion to Avoid Lien filed by Charles Ruten-berg (Debtor) in the above captioned case. In his Motion, the Debtor seeks to avoid a post-judgment writ of garnishment served by Barnett Bank of Pinellas County (Barnett) in order to reach the funds h...
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ORDER ON MOTION TO EXTEND TIME TO FILE MOTION TO INTERVENE AND MOTION TO INTERVENE IN ADVERSARY PROCEEDING THIS IS a Chapter 7 liquidation ease and the matter under consideration is a Motion to Intervene in the above-captioned adversary proceeding, filed by the United States of America (Government). The adversary proceeding was commenced by Bicoastal Corporation, d/b/a Simuflite, f/k/a Th...
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ORDER ON MOTION FOR STAY OF ORDER PENDING APPEAL THIS IS a Chapter 7 case and the matter under consideration is a Motion for Stay of Order Pending Appeal filed by Milton M. Arvay, Jr., et al. (Plaintiffs). The Plaintiffs are real estate salespersons associated with Bob Hamilton Real Estate, Inc. d/b/a Century 21 Bob Hamilton Real Estate (Debtor), a licensed real estate broker. The undispu...
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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 the liability owed by Hubert Earl Jenkins (Debtor) to Gerald T. Lane (Lane) who commenced this adversary proceeding. The claim of non-dischargeability is asserted pursuant to 11 U.S.C. § 523(a)(6) and is based on the allegation of Lan...
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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 challenging the dischargeability of a debt allegedly owed by William A. Latorre (Debtor) to Barry A. Cohen (Plaintiff), the Debtor’s former attorney. In addition, the Plaintiff challenges the Debtor’s right to a general dis *693 charge based on § 727(a)(4). In...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING THE DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT THIS IS a Chapter 7 case, and the matter under consideration is the dischargeability of certain tax obligations owed by the Plaintiffs to the United States of America (Government) for the calendar years 1987, 1988, and 1989. In its single count complaint, Mr. and Mrs. Greco (Debtor...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is a two count Complaint asserting two claims by Gordon L. Kiester, Trustee of the estate of Thomas Handy and Judith Handy (Debtors). The Complaint filed by the Trustee in Count I challenges the right of the Debtors to a general bankruptcy discharge based on § 727(...
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ORDER ON OBJECTION TO CLAIM THIS IS a Chapter 7 liquidation case originally commenced as a Chapter 11 case on August 20, 1991 and converted to a Chapter 7 liquidation case on June 26, 1992. On December 17, 1992 the Debtors filed a Motion for Refund of Excess Monies claiming that there will be more than sufficient funds on hand to pay all allowed claims. On January 25, 1993, this Court entered an ...
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ORDER ON ESTIMATION OF CLAIMS THIS IS A confirmed Chapter 11 case and the matter under consideration is the estimation of the contingent and unliquidated claims filed by Accent Homes, Inc., Woodvale Management Corp., Woodvale at Cypress-head, Inc., Hearthstone at Cypresshead, Inc., Dupree General Contractors, Inc., Foglia Construction Company, Inc., and Foglia-Du-pree Custom Homes, by and through ...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTION THIS CAUSE came on for hearing with due notice to all interested parties upon Objection to Claim of Exemption filed by the Chapter 7 Trustee (Trustee). Eric and Kelly Hanick claimed as exempt property commissions received by Eric Hanick (Debtor) on sales of real estate he procured as a real estate broker. It is the Trustee’s contention that the Debtor is...
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DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT In this Chapter 7 bankruptcy case, creditors Repro-Art Service, Inc. and the Provident Bank (“movants”) have filed a joint motion on objections to exemptions claimed by the debtor. Pre-trial conference was held regarding the objections and as a consequence cross-motions for summary judgment were filed by the movants and by the debtor. Debtor had filed...
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ORDER SUSTAINING OBJECTION TO CONFIRMATION At Cincinnati, in said District, on February 7, 1994. In this Chapter 13 case, trustee objected to confirmation of the Chapter 13 plan on the basis that the plan failed to include certain property of the debtor’s estate in its liquidation analysis, to determine whether the plan is in the best interests of creditors under § 1325(a)(4) of the ...
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ORDER RE DISCLOSURE STATEMENT AND BALLOT The debtor in this Chapter 11 case is a nonprofit corporation which operates a nursing home. Competing plans have been presented, one by present management, and one by Wesley Hall, another nonprofit entity which is interested in operating the facility. Debtor and Wesley Hall have presented a single disclosure statement which generally suffices to provide...
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MEMORANDUM OPINION I. INTRODUCTION This constitutes the court’s decision on cross-motions by plaintiff, E & C Holding Company (“debtor” or “E & C”) and defendant Township of Piscataway (“Piscataway”) for partial summary judgment as to the first and second counts of the complaint filed by the debtor in this adversary proceeding. The first count seeks a determination of the val...
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Dear counsel: The matter before the court is a Motion for Avoidance of Poor Liens (Rule 4003(d)) filed by Salem, South Dakota, Attorney Michael E. Unke on behalf of Debtors and objected to by Madison, South Dakota, Attorney Wilson Kleibacker, acting as Lake County State’s Attorney representing Lake County, South Dakota. The issue is whether a county, whose only privity is with a debtor’s creditor,...
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*32 MEMORANDUM The question presented is whether Bankruptcy Rule 9011 sanctions should be imposed upon this debtor for omissions and misrepresentations in the Schedules and Statement of Affairs. Sanctions are appropriate. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I The debtor worked as a district manager for Farmers Insurance Gr...
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MEMORANDUM DECISION GRANTING MOTION FOR PRELIMINARY INJUNCTION AND DIRECTING THE APPOINTMENT OF AN EXAMINER The debtor-in-possession, Keene Corporation (“Keene”), seeks declaratory and injunc-tive relief preventing the continuation of approximately 1,600 lawsuits. Commenced by Keene’s creditors and pending throughout the country, the lawsuits challenge the legality of Keene’s transfer of ...
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DECISION REGARDING EFFECT OF SECTION 506(a) AND (d) OF THE BANKRUPTCY CODE ON CHAPTER 13 WHOLLY UNSECURED SECOND MORTGAGE The Chapter 13 Debtors commenced an adversary proceeding seeking a determination by this Court that the Defendants be deemed wholly unsecured creditors in spite of the fact that they hold a valid perfected second mortgage on the Debtors’ principal residence. The Debtors fu...
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MEMORANDUM OPINION This adversary proceeding is before the Court upon the Order of Remand entered in the United States District Court for the Southern District of Mississippi, Jackson Di *532 vision. The Order of Remand was entered pursuant to an appeal filed by Wickes Lumber Company from this Court’s Order Dismissing Objection to Discharge and Memorandum Opinion. Wickes Lumber Company init...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on the Objection to Confirmation filed by Green Tree Financial Corp .-Mississippi and the Trustee’s Response to the Objection to Confirmation filed by Harold J. Barkley, Jr. Having reviewed the Stipulation of Facts and the briefs submitted by the parties, the Court finds that the...
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OPINION REGARDING APPLICABILITY OF AUTOMATIC STAY AND DEBTOR’S MOTION FOR CONTEMPT I. ISSUES There are two .major issues raised in this contested matter. First, did the Debtor hold an interest in a certain vehicle which was protected by the automatic stay imposed under 11 U.S.C. § 362(a)? Second, if so, did the Bank willfully violate the automatic stay by repossessing the...
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OPINION In In re Magosin, 75 B.R. 545, 547 (Bankr. E.D.Pa.1987), this court set down a specific formula to be used in applying the deceptively-opaque language of 11 U.S.C. § 522(f)(1), relating to avoidance of judicial liens. A lienholder has taken issue with the formulation set forth in Magosin, contending that it is inconsistent with the principles set forth by...
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OPINION A INTRODUCTION The matter before this court raises issues of first impression as to whether compensation for attorney fees and costs incurred by *245 certain of the alleged former customers (“the Customers”) of a brokerage firm liquidated under the Securities Investor Protection Act, 15 U.S.C. §§ 78aaa, et seq. (“SIPA”), are recoverable and...
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OPINION Introduction Old Electralloy Corporation f/k/a and f/d/ b/a Electralloy Corporation (“Debtor”) filed its voluntary Petition under Chapter 7 of the Bankruptcy Code on January 29; 1991 (“Filing Date”). Richard W. Roeder, Esq. (“Trustee”) serves as Chapter 7 Trustee. The Trustee filed the within Complaint against Climax Molybdenum Company (“Climax”) to recover $26,000 un...
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DECISION ON ORDER GRANTING JUDGMENT TO DEFENDANTS This matter is before the court for a decision based upon the uncontroverted facts set forth in the parties’ “Pretrial Order” (Doc. # 39) and the parties’ memoranda of law. 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. §...
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MEMORANDUM OPINION Before the Court is a Motion to Alter or Amend Order Granting in Part and Denying in Part Motion for Allowance and Payment of Administrative Priority (“Motion”) filed by Desert Hills Factory Stores (“Desert Hills”), a former landlord of the Debtor. The Motion seeks reconsideration of the Court’s denial of Desert Hills’ request that, the loss of future rents and its atto...
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MEMORANDUM OPINION This matter comes before the Court on motions of fourteen Defendants to dismiss Plaintiffs Adversary Complaints for failure to state a claim upon which relief may be granted pursuant to Bankruptcy Rule 7012(b). The Adversary Complaints seek to recover allegedly preferential payments made to the Defendants pre-petition. This is a core proceeding. 28 U.S.C. § 157(b)(2...
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ABSTRACT FROM BENCH RULING ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AND GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT The United States of America, on behalf of the General Services Administration (the “GSA”) and various other governmental agencies (collectively the “Government”), moves for relief from the automatic stay to set off funds owed by the Government to Eastern Air Lines (“Easter...
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MEMORANDUM OPINION This matter comes before the Court on the petition to avoid a lien filed by Henry Eartis Harrison (the “Debtor”) and the objections thereto of United Bell Credit Union (the “Creditor”). The Debtor seeks to avoid the Creditor’s judgment lien pursuant to 11 U.S.C. § 522(f)(1) on the ground that it impairs the Debtor’s homestead exemption claimed in the property. After...
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MEMORANDUM OPINION These matters come before the Court on the petition of John A. Betts (the “Debtor”) for a rule to show cause against Sharon Becker (“Becker”), William Surin (“Surin”), Kevin Mason (“Mason”), and the Honorable Stephen D. White (“Judge White”), requesting this Court to enter an order requiring them to show why they should not be held in contempt of this Court and for ...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of Philip V. Martino, as trustee (the “Trustee”) of the estate of Garofalo Finer Foods, Inc. (the “Debtor”), against First National Bank in Harvey (the “Bank”). The ultimate question the Court must decide is whether the repayments made to the Bank as a result of extensions of overdraft credit made by the Bank to th...
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OPINION BACKGROUND On February 19, 1993 Appellant Seymour Licht (“Licht”) filed a Motion to Terminate the Equity Holders Committee (“Motion to Terminate”) in the America West bankruptcy case. On February 27, 1993, the Official Committee of Equity'Security Holders (“Equity Committee” or “Committee”) filed a motion to strike Licht’s Motion to Terminate. The Committee also requested that Licht be s...
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MEMORANDUM OPINION JURISDICTION This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(a) (the district courts shall have original and exclusive jurisdiction of all cases under Title 11) and 28 U.S.C. § 1334(d) (the district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all the property, wherever located, of the debtor ...
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OPINION The debtor proposed a plan of reorganization that restructured the construction loan of the largest secured creditor into permanent financing. The plan paid the note on a 25 year amortization schedule with a balloon payment due at the end of the seventh year. The bankruptcy court found that the plan was proposed in good faith and satisfied the fair and equitable standards under 11 U.S...
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OPINION Debtor seeks summary judgment disallowing a $1.7 million claim asserted against her as a guarantor. The principal issue is whether Debtor validly waived the “Gmdsky defense,” under which a lender may not recover from a guarantor any deficiency remaining *323after a nonjudicial foreclosure on real property securing the principal obligation. I determine that Debtor waived the defense and ...
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DECISION AND ORDER BACKGROUND On February 28, 1992, American Environmental Services Co. Inc. (the “Debtor”) filed a petition initiating a Chapter 7 ease, and on March 13, 1992, the Office of the U.S. Trustee appointed a trustee (the “Trustee”). On July 1, 1993, the Trustee commenced an adversary proceeding against Blue Cross/Blue Shield of the Rochester Area (“Blue Cross”) to avoid certain pr...
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DECISION AND ORDER ON DEBTOR’S MOTION FOR CONTEMPT FOR VIOLATION OF THE AUTOMATIC STAY I. ISSUE Floyd K. Cameron, the debtor in this Chapter 13 case, seeks an order that Mechanics Savings Bank (the Bank) is in violation of the automatic stay provision of Code § 362(a) because the Bank has started a mortgage foreclosure action against a co-owner’s jointly held interest in...
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OPINION Introduction Before the Court are cross-motions for summary judgment on Lamar McCartney’s (“Debtor”) objection to Claim No. 6 filed by Integra National Bank North, successor to McDowell National Bank (“Integra”). It appearing that there are no issues of material fact, the matter is ripe for decision. Facts On September 26, 1989, Integra loaned Lamar’s Re...
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OPINION REVOKING DISCHARGE PURSUANT TO 11 U.S.C. § 727(d)(1) and (2) INTRODUCTION This case presents a textbook example of an individual, who finding himself in a seriously precarious financial position as a result of a $4 million defamation judgment, filed a Chapter 7 petition. Although Defendant sought to reap the substantial benefits which flow from filing bankruptcy, he elected to ignore ...
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MEMORANDUM This motion to avoid a judicial lien arises out of a seven year old bankruptcy case, filed on November 3, 1986. The Debtor’s discharge was entered on March 12, 1987 and the ease was closed on June 12, 1987. On September 22, 1993, the Debtor filed an application to reopen his bankruptcy case to avoid a judicial lien that was in existence at the time of the filing. We summari...
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*928 MEMORANDUM DECISION AND ORDER ON COMPETING PLANS OF REORGANIZATION Before the Court are two competing plans of reorganization, one proposed by the Debtors (as hereinafter described) and the other by the Banks (as hereinafter described). The Debtors’ Plan (as hereinafter defined) is based upon their confidence in their ability to produce cash flows sufficient to support payme...
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MEMORANDUM DECISION ON OBJECTIONS TO PROOFS OF CLAIM FILED BY MIRROR GROUP NEWSPAPER, PLC, MGN LIMITED AND RTI HOLDINGS, INC. We revisit, after trial, the request of Maxwell Newspapers, Inc. to expunge the proofs of claim filed by Mirror Group Newspapers, pic, and two of its subsidiaries, MGN Limited and RTI Holdings, Inc. I will refer to Maxwell Newspapers, Inc. as “Maxwell Newspaper...
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OPINION (Validity of Security Interest in Unearned Insurance Premiums) Abraham D. Sofaer, the Chapter 11 Trustee of Braniff International Airlines, Inc. (“Braniff’), has moved for an Order, pursuant to 11 U.S.C. §§ 105(a) and 364(c), determining the validity of a security interest claimed by Crossland Premium Funding, Inc. (“Crossland”). The Trustee asks this Court to determine w...
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MEMORANDUM OPINION This matter comes on to be heard upon the complaint of Itaparica, Ltd. (“Itaparica”) asking that its debt -against Patrick Lee Har-grove (“Debtor”) be declared nondischargeable and that judgment be entered in its favor in the amount of the nondischargeable debt. This Court has jurisdiction to hear this matter pursuant to 28 U.S.C. § 1334 and this is a core proceeding pursua...
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OPINION A INTRODUCTION Presently before this court in the voluntary Chapter 11 bankruptcy case of UNION MEETING PARTNERS (“the Debtor”) are (1) the Debtor’s request that we confirm its Third Amended Plan of Reorganization (“the Debtor’s Plan”) over the opposition of its first mortgagee, Lincoln National Life Insurance Company (“Lincoln”); and (2) Lincoln’s request that we...
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MEMORANDUM OPINION Introduction This ease presents the Court with a series of complex questions regarding whether the above-named municipal debtors should be permitted to remain in the bankruptcy court under their chapter 9 petitions. The record establishes that the debtors did not exercise pre-bankruptcy their assessment powers to require their member municipalities to contr...
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OPINION On appeal are separate judgments of non-dischargeability in adversary proceedings under 11 U.S.C. § 523(a)(6). 1 In a U.S. district court action, the court awarded appellee Ti-cor Title Insurance Company of California treble damages and attorney’s fees against the debtor under RICO, as well as a coextensive award for compensatory and punitive damages for fraud. In a state court cred...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on the 13th day of January, 1994, on the plaintiffs motion for summary judgment and the defendant’s motion for summary judgment. Ap *629 pearances were as fo...
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MEMORANDUM OPINION Manchester Heights Associates, L.P. (the “Debtor”), filed its petition under Chapter 7 of Title 11 of the United States Code on December 30, 1991. Upon request of the creditor Hutchinson-Massood Development, Inc. (Hutchinson-Massood) and application by the trustee to abandon any interest in alleged fraudulent transfers, the property was abandoned, pursuant to § 554 ...
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MEMORANDUM DECISION At issue is whether Imperial-Yuma Production Association’s (“PCA”) perfected security interest in the debtors’ option contract rights to purchase real property attaches to proceeds generated from the debtors’ postpe-tition exercise of its option contract rights and subsequent sale of the real property. This court has jurisdiction to hear this matter pursuant to 28 U.S.C. §...
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MEMORANDUM The trial of this adversary proceeding was conducted on February 9, 1994. The parties agreed that the matter would be submitted to the Court on the testimony and evidence at trial, including certain stipulated facts, and the arguments of counsel. At the conclusion of the trial, the Court granted the parties additional time to submit memoranda of law with respect to the disc...
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MEMORANDUM OF OPINION ON MOTION TO RECONSIDER JUDGMENT Several Defendants moved the court to reconsider its entry of a judgment against them. Finding that the judgment resulted from a settlement announced in open court, the court denies the motions for reconsideration.1 FACTS On April 19, 1993, Floyd D. Holder, Jr., the Trustee-in-Bankruptcy for Omni Video, Inc. (Trustee), filed this adversary pr...
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ORDER The matter before me is the disposition of two related adversary proceedings brought by debtor Charles Rex Teeslink against the United States of America, Department of the Treasury, Internal Revenue Service, A Government Agency of the United States of America (“IRS”) and James D. Walker, Jr. the Chapter 7 case trustee. In adversary proceeding number 92-01077A debtor seeks a dete...
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MEMORANDUM OPINION AND ORDER On or about February 25, 1993, Kevin and Carol Heckman (“Debtors”) filed the above-captioned adversary complaint against Meridian Bank (“Meridian”) to determine the validity, priority and extent of Meridian’s secured status pursuant to 11 U.S.C. §§ 502 and 506. On December 13, 1993, a telephone pre-trial conference was held between counsel and the Court. At that t...
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This is the court’s findings of fact and conclusions of law on the objection of the Trustee of Mission of Care, Inc. to the amended proof of claim (No. 9) of Christian Delivery Service, Inc. for $35,982.96. An evidentiary hearing was held on April 22, 1991. In its subsequent briefing, CDS amended its claim to $32,048.36. This is a core proceeding. 28 U.S.C. § 157(b)(2)(B). I. Backgro...
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OPINION Before the Court is the Motion of S & S Tool & Instrument Company (“S & S”) to Determine Value of Meridian Bank’s Secured Claim Pursuant to Bankruptcy Rule 3012 (the “Motion”) and S & S’s Objection to Proof of Claim No. 110 filed by Meridian Bank (the “Objection”). A consolidated hearing on the Motion and the Objection was held on January 25, 1994 and each party submitted a le...
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MEMORANDUM The question presented is whether a Chapter 11 trustee’s two-year period within which to commence an avoidance action under 11 U.S.C. § 546(a)(1) is counted from the appointment of the trustee or from the (earlier) filing of the petition. The two years is counted from the appointment of the trustee. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7...
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MEMORANDUM OPINION INTRODUCTION Before the court are cross-motions for summary judgment in an adversary proceeding filed by Plaintiff Haywin Textile Products, Inc. (“Haywin”) against Defendant/Debtor-in-Possession Bill’s Dollar Stores, Inc. (“BDS”) seeking reclamation of goods, pursuant to Section 546(c) 1 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. 2 and Fed.R.Bankr.P. 7001 and ...
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MEMORANDUM OPINION SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S 11 U.S.C. § 522(d)(10)(E') EXEMPTION OF INDIVIDUAL RETIREMENT ACCOUNT The trustee objects to the Debtor Linda Evenson’s claim of exemption in an individual retirement account (IRA) under 11 U.S.C. § 522(d)(10)(E). Because I agree with the trustee that the IRA plan or contract in this ease does not restrict the Debtor’s right to rec...
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MEMORANDUM OPINION The Debtor, Reuben Talbot Reinstein, (“Debtor”) was engaged prepetition in the business of options trading on the Chicago Board Options Exchange (“CBOE”). The primary non-exempt asset of the Debtor’s estate is his seat on the CBOE (the “Seat”). The issue before the Court is whether the proceeds of the sale of the Seat are subject to disposition in accordance with the rules of ...
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MEMORANDUM OF DECISION Following successful appellate defense of this court’s August 20,1992, fee awards, Norman, Hanson & DeTroy (“NH & D”), the debtor’s counsel, and the Pilot Group (“Pilot”), the debtor’s financial advisor, filed supplemental fee applications seeking fees and expenses associated with the appeals and interest on their approved fees. Casco Northern Bank, N.A. (“Casco...
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MEMORANDUM DECISION ON A MOTION FOR AN ORDER VACATING DEBTOR’S DISCHARGE AND EXTENDING THE TIME TO SERVE AND FILE AN ADVERSARY COMPLAINT OBJECTING TO DEBTOR’S DISCHARGE AND/OR THE DIS-CHARGEABILITY OF CERTAIN CLAIMS Judgment creditors Vincent Felico (“Feli-co”), George Feigenbaum (“Feigenbaum”) and Arthur Grossman (“Grossman”), (collectively, the “movants”) have moved this Court pursu...
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MEMORANDUM OF DECISION Before the court is the debtors’ objection to the claim filed by the United States of America for the Internal Revenue Service (“IRS”). The court adopts the parties’ Proposed Stipulation of Facts (D.E. 40) (see Appendix attached). It is agreed that the IRS claims for the years 1986,1987, and 1991 represent joint claims against both debtors. The parties further a...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came for trial before the Court on the Plaintiffs’ Complaint for Declaratory Judgment that their income tax liability for tax years 1983 and 1984 have been discharged in bankruptcy. The Court, having considered the evidence presented at trial, the arguments of counsel and the applicable law, makes the following findings of fact and conclusio...
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DECISION ON ISSUE OF DISCHARGE-ABILITY PURSUANT TO 11 U.S.C. § 727(a)(3) The Plaintiff, Bay View Laundry, Inc. (the “Plaintiff’), has brought an adversary proceeding to object to the discharge of Jeffrey A. Artura (“Debtor”) and Bay Hill Formáis, Inc. (collectively, the “Defendants”) pursuant to 11 U.S.C. § 727(a)(3) claiming that the Debtor has failed to keep adequate books and records f...
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MEMORANDUM ORDER SUSTAINING THE TRUSTEE’S OBJECTION TO CLAIM NO. 20 The above-entitled matter came on for hearing before the undersigned on the 23rd day of February, 1994, on the trustee’s objection to Employers Insurance of Wausau’s (“Wausau”) proof of claim. Appearances were as follows: James Ramette as and for the trustee (“trustee”); and Robert Judd for Wausau. FACTS ...
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DECISION AFTER TRIAL 1. Background This is a core proceeding under 28 U.S.C. § 157(b)(2)(F) wherein a Chapter 7 Trustee seeks to recover preferential payments to a trade supplier under 11 U.S.C. § 547. The Debtor filed a petition under Chapter 11 of the Bankruptcy Code on June 8, 1990, and converted to Chapter 7 on June 25, 1992. During the 90 days preceding the filing of the Chapter 11 Petitio...
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MEMORANDUM OPINION This matter is before the court on a motion for summary judgment filed by the Defendant, Illinois Student Assistance Commission (“ISAC”). The complaint seeks a determination that the Plaintiffs/Debtor’s student loans are dischargeable. The Debtor argues that the motion should be denied as there is a genuine issue of material fact as to when the student loans “first beca...
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ORDER ON MOTION FOR RECONSIDERATION The Department of Social and Health Services of the State of Washington1 moves for reconsideration of the Order Denying Motion for Relief from Stay entered 13 January 1994. The questions presented are: (1) whether the nature of the relief the Department ultimately seeks in the state court, modification of the Debtor’s child support obligation, is ipso facto caus...
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MEMORANDUM OPINION ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT On December 21, 1993, the Court held a hearing on the Plaintiffs Motion for Partial Summary Judgment and the Defendant’s Motion for Summary Judgment in this adversary proceeding which is a core proceeding under 28 U.S.C. § 157(b)(2)(F) and (L) as it deals with the recovery of alle...
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MEMORANDUM OPINION ON OBJECTION TO CLAIM OF JAMES B. MILLS, TRUSTEE AND KAREN D. MILLS Mr. Gatti’s, Inc., (“Debtor”) is a national franchisor of pizza restaurants. It filed a voluntary Chapter 11 petition on October 10, 1991. James B. Mills, Trustee and Karen D. Mills (hereafter collectively referred to as “claimant”) are lessors of real property, whose previously unexpired lease was ...
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MEMORANDUM OPINION Before the court is a motion for partial summary judgment filed by Marsha Kocu- *96 rek, Trustee, and a cross-motion for summary judgment filed by certain of the above-named defendants, hereafter collectively referred to as “Tax Claimants”. The specific relief sought in this adversary is a request by the Trustee to authorize the estate to sell its 65% u...
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MEMORANDUM OPINION AND ORDER The matters before the court are Trans-america Commercial Financial Corporation’s objections to claims. A hearing was held in Raleigh, North Carolina on January 20, 1994. The chapter 7 debtor, Tart’s T.V., Furniture and Appliance Company, Inc., operated a chain of appliance stores in North Carolina and South Carolina. The debtor closed its doors to the pu...
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MEMORANDUM AND ORDER ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT Wiley A. Wasden, III, Trustee in Debtor’s Chapter 7 case, initiated this proceeding on May 7, 1993, against the United States, the Georgia Department of Revenue and the Florida Department of Revenue. The United States and Georgia Department of Revenue timely filed answers, and the Florida Department of Revenue filed ...
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ORDER Before the Court is the Chapter 7 Trustee’s Application for authority to distribute $15,444.14 to Arrow Plumbing and Heating, a *91judgment creditor, after payment of Ms 11 U.S.C. § 506(c) administrative expense claim. The Debtor and Joseph F. Mulcahy, also a judgment creditor, object on the ground that Arrow’s judicial lien is avoidable as a preference under 11 U.S.C. § 547. On April 24,...
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ORDER The Debtor filed this adversary proceeding against the Rhode Island Department of Transportation requesting that the State be ordered, pursuant to 11 U.S.C. § 542, to turn over funds owed to the Debtor under certain construction contracts. The State has filed a Motion to Dismiss, on the ground of sovereign immunity, arguing that the relief sought in this action is barred by the Eleventh...
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OPINION The Debtor, Floyd V. Lagrow, has a Federal Employers Liability Act (FELA) claim against his employer, the Burlington Northern Railroad. In their schedules, the Debtors listed the claim as exempt. Their trustee in bankruptcy filed an objection to the claim of exemption. The Exemption Law of Illinois provides in part as follows: The following personal property, owned by the debtor, is exem...
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DECISION AND ORDER DENYING DEBTOR’S REQUEST TO MODIFY MORTGAGE Heard on December 16, 1993, to consider confirmation of the Debtor’s Chapter 13 plan. The Rhode Island Depositors’ Economic Protection Corporation (“DEPCO”), a secured creditor, objects to plan confirmation on the ground that the Debtor’s plan attempts to modify its secured interest in real estate (which serves as the Debtor’s pri...
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*250 OPINION This matter is before the Court on the motion of defendant, Duquoin National Bank (“Bank”), to file a notice of appeal instanter, which the Court construes as a request to extend the time for filing notice of appeal. The Bank missed by one day the deadline for filing its notice of appeal and now seeks an extension of time to appeal pursuant to the “excusable neglect” provision ...
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MEMORANDUM OPINION Before the court is the chapter 7 trustee’s objection to an unsecured creditor’s proof of claim as untimely. The creditor, New Pal Financing Group, argues that it filed a timely “informal claim” which was subsequently amended by filing a formal proof of claim eleven months after the deadline for fifing proofs of claim. The court has jurisdiction under 28 U.S.C. §§ 1...
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MEMORANDUM OPINION This constitutes the court’s decision on a motion by the Official Committee of Unsecured Creditors of the debtor, Investors and Lenders, for summary judgment avoiding the liens of eleven separate defendants. The eleven defendants have filed cross-motions for summary judgment. All eleven defendants made pre-petition loans to the debtor, secured by notes and mortgages...
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MEMORANDUM OPINION Two matters are before the court at this time. ESI Enterprises, Inc. (“ESI”) has brought a complaint at Adversary No. 93-1263-BM to recover the sum of $188,788.53 which ESI asserts are the proceeds of merchandise owned by it that was sold at going-out-of-business sales (“sales”) it conducted on debtor’s behalf shortly before debtor filed for bankruptcy. Debtor ...
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MEMORANDUM OPINION Two adversary actions are before the court at this time. Pittsburgh Police Federal Credit Union (hereinafter “PPFCU”) seeks a determination at Adversary No. 93-2352-BM that a'debt owed to it which arises from a loan application debtor submitted on February 18, 1991 is not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(B). Alegheny County No. 1 Federal Credit U...
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DECISION Two issues were determinative of the involuntary petition filed against the alleged debtor Lois Pierce. Was one of the petitioners, Orthopaedics Northeast, Inc., a creditor of Mrs. Pierce? If not, did the circumstances surrounding its joinder so taint the original petition that the numerical deficiency resulting from its disqualification as a petitioner could not be cured thr...
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OPINION The Creditors and the Debtor are adjoining landowners. The Creditors use their land to raise crops and cattle and the Debtor uses its land to raise cattle. In the mid 1970’s, the Debtor, desiring a border fence between the adjoining lands, requested that the Creditors erect a portion of the border fence. The Creditors and the Debtor agreed the border fence was to be divided into forty r...
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MEMORANDUM OPINION The United States Trustee (the “Trustee”) moves to dismiss this bankruptcy case for substantial abuse. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) over which the Court has jurisdiction pursuant to 28 U.S.C. § 1334(b), 157(a), and 157(b)(1). The main issue is the allowability of charitable contributions in computing expenses. For the reasons set forth below, I w...
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OPINION AND ORDER DENYING MOTION FOR ORDER AUTHORIZING AND ESTABLISHING PROCEDURES FOR INTERIM PAYMENTS TO PROFESSIONALS This matter is before the Court on Gen-lime Group, L.P.’s (the “Debtor”) motion for order authorizing and establishing procedures for interim payments to professionals and the United States Trustee’s (“UST”) objections thereto. The Court finds that the Debtor’s motion i...
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OPINION AND ORDER DISMISSING CASE WITH PREJUDICE This matter is before the Court upon Virgil and Diane Hildreth’s (the “Debtors”) “Notice Of Dismissal” which this Court has treated as a motion to dismiss the Debtors’ chapter 12 case under 11 U.S.C. § 1208(b) and the objections of Fahey Banking Company (“Fa-hey”) thereto. Fahey has also moved that the Court sanction the Hildreths and their counsel...
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OPINION AND ORDER DENYING AMENDED APPLICATION FOR ORDER AUTHORIZING EMPLOYMENT OF CONRAD J. MORGEN-STERN & ASSOCIATES, INC. AS FINANCIAL ADVISOR This matter is before the Court on the Genlime Group, L.P.’s (the “Debtor”) amended and restated application for order authorizing employment of Conrad J. Morgenstern & Associates, Inc. (“CMA”) as financial ad-visor and the United States Trustee’s (“UST”...
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MEMORANDUM OPINION This is a proceeding to determine if requiring debtor to repay her student loans would impose an undue hardship. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I find that the involved debt is dischargeable pursuant to 11 U.S.C. § 523(a)(...
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MEMORANDUM OPINION Debtors in this Chapter 11 case are the owners of two Subway Sandwich and Salad stores. Movants, Subway Real Estate Corporation and Doctor’s Associates, Inc. (collectively referred to as “Subway”), are parties to franchise and sublease agreements with the debtors. On February 22, 1994, this Court denied Subway’s Motion for a Declaratory Judgment that the franchise a...
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE AND DENYING DISCHARGE This matter is before the Court on Ag Credit ACA’s (“Bank”) complaint to deny William J. and Joyce D. Walton (the “Wal-tons”) a discharge pursuant to 11 U.S.C. § 727(a)(2)(A) and (a)(3). The Bank also seeks to except a $700,000 loan (the “Loan”) from the Bank to the Waltons from discharge pursuant to 11 U.S.C. § 523(a)(2)(B)....
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter is before the Court upon Robert and Karen Wright’s (the “Wrights”) complaint to except the debt of Paul Fowler (“Fowler”) from discharge under 11 U.S.C. § 523(a)(2)(A). The Court finds that the Wrights’ complaint is well taken and that the debt owed by Fowler to the Wrights should be excepted from discharge. FACTS Fowler filed a ...
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OPINION This appeal arises from an order confirming the debtor’s Chapter 13 1 plan which modified the rights of a lender whose note *767 was secured by a deed of trust on the debt- or’s principal residence. We REVERSE and REMAND. I.FACTS In May 1984, the debtor, Colleen Reeves, (“Reeves”), granted a first deed of trust on her residence to appellants, ...
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*461 MEMORANDUM OPINION Defendant, First State Bank of Joplin (“First State”), has moved for Summary Judgment as to all Counts of plaintiff’s Complaint. This is a core proceeding under 28 U.S.C. § 157(b)(2)(H) and (0) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I grant defendant’s motion. FACTUAL BACKGROUND Cl...
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RULING ON OBJECTION TO AND MOTION TO DISMISS THE PETITION I. The Westport Transit District (‘Westport Transit”), on January 7, 1992, sought relief under Chapter 9 of the Bankruptcy Code, apparently in response to having a judgment for $1,048,260 entered against it in a state-court antitrust action brought by Westport Taxi Service, Inc. (Westport Taxi”). West-port Taxi has objected to the ba...
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DECISION RE MOTION TO DISMISS This is a case in which the debtor proposes a plan that gives mortgaged property to a mortgagee in satisfaction of its allowed secured claim and proposes that any unsecured portion of the mortgagee’s claim be paid by the guarantors of the claim (subject to the limitations of their guarantees). The court concludes, on the unique facts of this case, that th...
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OPINION The chapter 7 trustee objected to debtor’s claim of homestead exemption, arguing that debtor was not entitled to claim such exemption under §§ 522(b) and (g)(1). 2 The bankruptcy court overruled the trustee’s objection and entered an order in favor of the debtor. We REVERSE the bankruptcy court’s order. FACTS On July 7, 1992, John L. Glass (the “Debt- or”), filed a petition un...
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MEMORANDUM OF DECISION ON MOTION TO DISMISS CERTAIN AFFIRMATIVE DEFENSES This contested matter is before us 1 upon a Motion to Dismiss Affirmative Defenses to the complaint filed by Plaintiffs, under Fed. R.Civ.P. 7(b) and Fed.R.Bkrtcy.P. 7007. The issue before us is whether sellers of goods under the Perishable Agricultural Commodities Act of 1930, as amended, 7 U.S.C. §§ 499a...
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DECISION RE MOTIONS FOR SUMMARY JUDGMENT On motions for summary judgment the court determines (1) that the defendant bank’s second deed of trust lien on the debt- or’s residence was perfected and is not avoidable under 11 U.S.C. § 544(a), despite the deed’s listing an erroneous square number, (2) that the error does not give rise to equitable estoppel, (3) that the payment of the prev...
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Memorandum of Decision John McKinnon (“McKinnon” or the “debt- or”) has moved to reopen his no-asset Chapter 7 ease in order to amend his schedules to add the Government Employees Federal Credit Union (“GEFCU”) as a creditor. For the reasons set forth below, I conclude that the case shall be reopened so that the amendment may be effected, notwithstanding the fact that the amendment is not...
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The debtor filed a complaint under 11 U.S.C. § 505 2 seeking to have his tax liabiHty determined, claiming that he was constitutionally exempt from federal income taxes. The IRS filed a motion to dismiss. The bankruptcy court granted the IRS’s motion. The debtor appeals. We AFFIRM. I. FACTS The debtor, John D. Robnett (“Robnett”) had failed to file his federal income tax returns for the yea...
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MEMORANDUM OPINION This case concerns whether William G. Booker should be granted a discharge for loans made for investment purposes by John J. O’Connor, CPO, Inc. and John J. O’Connor and Patricia M. O’Connor as trustees of the John J. O’Connor, CPO, Inc. Pension Plan (collectively referred to as “the O’Connors”) to Lambie Investments, Inc. (“Lambie Investments”). This Court finds that these ...
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MEMORANDUM OF DECISION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Just before the start of jury selection and trial scheduled for January 11, 1994, we granted 1 NYNB’s renewed motion for summary judgment dismissing CEPA’s complaint to avoid preferential transfers aggregating $5,716,000. Our doubts about the viability of CEPA’s ease were first raised by NYNB’s Motion for Judgment on the ...
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DECISION AND ORDER REGARDING OBJECTION TO PROOF OF CLAIM OF GEORGIA HIGHER EDUCATION ASSISTANCE CORPORATION The Debtor in this case objects to the proof of claim of Georgia Higher Education Assistance Corporation (“GHEAC”) on the ground that the claim is excessive because it includes unauthorized postpetition interest. In its response, GHEAC contends that post-petition interest is nondischarg...
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MEMORANDUM The matter being considered here is the Adversary Proceeding filed on behalf of Robert K. Howes and Margaret J. Howes (“Debtors”). These determinations and this Order are based on a consideration of the record as a whole, including the memorandum submitted by Counsel for the Debtors and the memorandum submitted by Counsel for Hannibal Clinic (“Defendant”). This is a co...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL Sitting by Assignment and Designation. This Adversary Proceeding relates to debt- or’s Chapter 7 bankruptcy. The debt- or/plaintiff brought this complaint to seek the dischargeability of debt owed his former wife. The issue is whether a $77,000.00 obligation agreed to under a Settlement Agreement related to their dissolution...
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ORDER DISMISSING CASE THIS MATTER came before the Court on March 8, 1994, upon the Motion to Abstain from Exercising Jurisdiction or to Dismiss Case filed pursuant to 11 U.S.C. §§ 305 and 1307(e) by Dawn K. Bandini, the former spouse of the Debtor. Upon consideration of the evidence adduced at trial, review of the briefs and other documentation submitted by the parties, the court file...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the trial of the Complaint to Revoke Discharge. Trial was held on March 17, 1994, at which Stephen T. Arnold appeared on behalf of the plaintiff and Bruce A. Condit appeared with the debtor. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court concludes that this ...
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ORDER DENYING MOTION TO FILE PROOF OF CLAIM The matter before the court in this chapter 11 case of Rose’s Stores, Inc. is the Motion for Extension of the Time to File Proof of Claim filed by Donna Myers on February 4, 1994. The motion will be denied. At the time of filing, the debtor operated 215 retail stores in 11 states. Ms. Myers alleges she sustained injuries resulting from a sl...
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ORDER OF DISMISSAL THIS CAUSE came before the Court upon the trial on the complaint for recovery of funds. During the pendency of the adversary proceeding, the trustee filed a complaint in intervention, disclaiming any interest in the funds. Trial was held on February 9, 1994, Karen Johnson appearing on behalf of the plaintiff landowner, Norman Jones, and Byron Rhodes, appearing on behalf of ...
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*438 MEMORANDUM OPINION ON CROSS-MOTIONS FOR SANCTIONS The debtor International Oriental Rug Center, Inc. (“Debtor”) filed for relief under Chapter 11 of the Bankruptcy Code, Title 11 U.S.C. On its motion, that proceeding was dismissed, but with reservation of jurisdiction over the pending cross-motions for sanctions. The Village of Downers Grove (the ‘Village”), althoug...
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ORDER RE OBJECTION TO EXEMPTION This cause is before the Court upon the Objection to Exemption, filed on September 18, 1993. Trial of this contested matter was held on March 17, 1994, at which Stephen T. Arnold appeared on behalf of the creditor Miller-Claborn Oil Distribution Company, Inc., and Bruce A. Condit appeared with the debtor. Jurisdiction over this matter, if it exists, is conferred b...
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ORDER THIS CAUSE is before the Court upon the following motions: 1. The plaintiffs Motion for Summary Judgment, filed on January 12, 1994, to which the defendants responded on February 8, 1994. The plaintiff filed a reply on March 9, 1994. 2. The Motion to Amend Pleadings, filed on February 8, 1994, to which the debtor responded on March 9, 1994. 3. The Motion to Abstai...
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ORDER STRIKING COUNTER-COMPLAINT THIS CAUSE is before the Court upon a sua sponte review of the file. On February 1, 1994, the Pine Bluff Arsenal Federal Credit Union filed a motion for relief from stay, to which the debtor filed, on March 8, 1994, a response and, contained in the same document, a “Counter-Complaint for the Return of Property to the Debtor’s Estate.” The Pine Bluff Arsenal Feder...
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ORDER OVERRULING OBJECTION TO CONFIRMATION AND DENYING MOTION TO DISMISS THIS CAUSE is before the Court upon the Objection to Confirmation and the Motion to Dismiss, both filed on December 23, 1993, by the creditors C.W. and Inge Fetner. Hearing on the issues was held on February 1, 1994, after which the parties submitted post-trial briefs to the Court. The debtors’ response brief was fil...
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ORDER THIS CAUSE is before the Court upon the objection by Planters and Merchants Bank of Gillett (the “bank”), filed on December 10, 1993, to the Trustee’s Amended Notice of Intent to Distribute Funds. The trustee and the bank submitted a stipulation of facts on February 3, 1994; the bank submitted a brief. Although the bank filed three claims in this bankruptcy ease, only two of the claims ar...
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MEMORANDUM OPINION AND ORDER The First National Bank of Boston (FNB) in its complaint seeks declaratory and injunc-tive relief to remedy alleged conduct of Columbia Gas System, Inc. (CG). FNB is the indenture trustee for security holders under an indenture whereby funds were borrowed to provide for an employee stock ownership plan (ESOP) within CG’s Employees’ Thrift Plan of Columbia Gas System....
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint to determine the dischargeability of a student loan on the grounds of hardship. The matter was called for trial on March 1, 1994, the defendants appearing by Connie Meskimen for the Student Loan Foundation of Arkansas, and Ginger Crisp for the University of Arkansas at Monticello. Th...
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MEMORANDUM OPINION This matter comes before the court on the parties’ cross-motions for summary judgment. This adversary proceeding has been brought by the trustee to avoid the fixing of *484 a lien on the debtor’s interest in certain real property, to quiet title to the property, and for declaratory relief. The parties have requested that the court decide this matter as a tr...
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*100 MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO VACATE JUDGMENT BIFURCATING CLAIM The defendant The Dime Savings Bank of New York, FSB (the “defendant”), seeks an order vacating a judgment which entered August 5,1991, bifurcating its first mortgage into secured and unsecured claims. See § 506(a). The defendant contends that a stipulation it entered into with the deb...
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ORDER The reorganized debtors’ objection to Claim No. 14678 is before the Court through the parties’ stipulated facts and briefs. The Court concludes that an oversecured creditor’s claim amendment to add a request for attorneys’ fees relates back to a timely filed proof of claim. Regardless, claimant made no effort to document how the claimed legal *651 fees were reasonably incurred under a p...
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MEMORANDUM AND ORDER ON MOTION TO DISMISS Sikorsky Federal Credit Union moves to dismiss this chapter 13 case or in the alternative to convert it to a chapter 7 case. Because I conclude that the debtors are ineligible for chapter 13 relief and that conversion to chapter 7 is in the best interests of creditors and the estate, the motion will be granted and this case will be converted to ch...
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ORDER GRANTING OBJECTION TO TRUSTEE’S NOTICE OF SALE This matter comes before the court as an objection to the Trustee’s notice of intent to sell a tract of land. During their marriage James and Linda Brollier acquired fee simple title to real estate in Kansas taking title in the husband-debtor’s name only. Subsequently they jointly conveyed away all but a *288 portion of...
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ORDER REGARDING DEBTORS’ MOTIONS TO AVOID JUDICIAL LIENS THIS MATTER came on for hearing on February 25, 1994, on the Debtors’ Motions to Avoid Judicial Liens Impairing Exemptions, with respect to Aurora National Bank South and Mercedes-Benz Credit Corporation. Both Aurora National Bank South and Mercedes-Benz Credit Corporation filed objections. In addition, Mercedes-Benz Credit Corporation fi...
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DECISION ON MOTION FOR SUMMARY JUDGMENT BASED UPON SUBJECT MATTER PRECLUSION FROM PRIOR GOVERNMENT AGENCY ORDER BACKGROUND This dischargeability action commenced by the Internal Revenue Service (“IRS”) against Jacob Freidus (“Debtor” or “Freidus”) is the most recent turn of events in connection with an ancient and protracted dispute. For over forty (40) years, the Debtor and ...
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ORDER Debtor filed the above referenced chapter 13 case on May 3, 1993. The United States of America acting by and through the Internal Revenue Service (“IRS”) filed an unsecured priority claim for $31,425.85 and a general unsecured claim for $3,170.41. A portion of the unsecured priority claim, the sum of $20,148.00, represented estimated liability in the amount of $5,037.00 for each tax year ...
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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, 157 and Local Rule 29 of the United States District Court for the Eastern Division of Missouri. This is a “core proceeding” pursuant to 28 U.S.C. § 157(b)(2)(A); which the Court may hear and determine. PROCEDURAL BACKGRO...
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ORDER In this Chapter 7 case and adversary proceeding, the Plaintiffs/Debtors filed a motion and complaint to avoid the judicial hen of the defendants Frey pursuant to 11 U.S.C. § 522(f), or in the alternative to value the extent of such lien. The Debtors have also filed an objection to the Proof of Claim of *478 Freys. All matters have been submitted on an agreed statement o...
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MEMORANDUM OPINION REGARDING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on the plaintiff JoAnne Miller’s motion for summary judgment. Plaintiff has filed a dischargeability complaint, alleging that a state court judgment against the debtors is nondis-chargeable under 11 U.S.C. § 523(a)(4) (fraud or defalcation of a fiduciary) and § 523(a)(6) (willful and maliciou...
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MEMORANDUM OPINION THIS CAUSE came before the Court on the Trustee’s Renewed Motion for Partial Summary Judgment on a Complaint for turnover of property to the estate pursuant to 11 U.S.C. § 542. The basis for the complaint, originally filed by Cascade International, Inc. (“Cascade”) as debtor in possession on February 4, 1992,1 was that the defendant, Lawrence Moses (“Moses”), while a director ...
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MEMORANDUM This motion for relief from the stay invites reconsideration of the question decided 11 years ago by Chief Judge Paine in In re Tucker, 35 B.R. 35 (Bankr.M.D.Tenn.1983) 1 ; whether an undersecured car financier’s interest in casualty insurance proceeds is limited by the confirmed Chapter 13 plan to the balance of its allowed secured claim. Tucker...
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ORDER This matter involves the reorganized debtors’ (“New Circle K”) objection to the final fee application of Salomon Brothers, Inc. (“Salomon”), filed October 8, 1993. Docket No. 14970. Applicant moved for summary judgment, Docket No. 15598, arguing it has an approved flat fee arrangement, negotiated with the debtor in possession and the official unsecured creditors’ committee. Salomon states...
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MEMORANDUM OPINION AND ORDER The issue in these Adversary Proceedings essentially is the validity, priority, and amount of the liens of Buckeye Union Insurance Company (“Buckeye Union”) and Dominion Bank (now First Union Bank) by virtue of docketed judgments upon the real estate of Douglas and Shirley R. Wilder (“Debtors”), the Debtors’ home, pursuant to Rule 7001(2). On September 21, 1989 the Deb...
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166 B.R. 504 (1994) In re Jonathan B. KELLOGG, Debtor. Jonathan B. KELLOGG, Plaintiff, v. KEY BANK OF MAINE f/k/a Key Bank of Central Maine, Defendant. Bankruptcy No. 91-52440. Adv. No. 92-5216. United States Bankruptcy Court, D. Connecticut. March 31, 1994. *505 Byron Paul Yost, Jonathan D. Zabin, Yost & Associates, P.C., New Haven, CT, for debtor/plaintiff. James M. Nugent, Charmoy & Nu...
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MEMORANDUM OF DECISION ON APPLICATION TO EMPLOY COUNSEL Debtors James G. and Patricia G. Francis (“the debtors”) filed a chapter 11 petition in propria persona on July 21, 1993. On December 15, 1993, the debtors filed an application to employ the law firm of Kimble, Mac-Michael & Upton (“the firm”) as legal counsel. The firm presently represents as bankruptcy counsel the debtors’ wholly owned cor...
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MEMORANDUM OF OPINION AND ORDER The issue before the Court requires a determination of whether the United States Trustee’s (UST’s) statutory fees and charges in a converted Chapter 11 case are to be shared on a pro rata basis with administrative claimants in the resulting Chapter 7 case, or whether such fees and charges are to be subordinated to the Chapter 7 administrative...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court on the Defendant’s Motion to Dismiss. Generally, the Defendant alleges that the Plaintiffs preference action is barred by the statute of limitations set forth in 11 U.S.C. § 546(a). After hearing arguments of counsel, and reviewing the pleadings and record generally, the motion is denied. I. This Court has core jurisdiction o...
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ADDENDUM This Court published its memorandum opinion and entered an order in this adversary proceeding on March 24, 1993.1 Georgia Power Company and Piedmont-Forrest Corporation appealed the Court’s decision to the United States District Court for the Middle District of Georgia. The district court entered an order of remand on February 8, 1994. The district court asks this Court to explain in mo...
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MEMORANDUM The Court presently confronts a controversy requiring an interpretation of Kentucky’s version of the Uniform Commercial Code. The Unsecured Creditor’s Committee (the “Committee”) has challenged the secured status of key creditors in this case, Texas Commerce Bank National Association, Nor-west Bank Denver, N.A., Banque Paribas and Den norske Bank AS (collectively, the “Bank Group”). T...
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MEMORANDUM OF OPINION AND ORDER This matter is before the Court upon the Debtor’s Motion For Extension Of Time To File Notice Of Appeal. The Debtor seeks to appeal a decision denying her motion to reopen her ease. The judgment denying the motion to reopen was entered February 10, 1994. The Motion For Extension Of Time To File Notice Of Appeal was filed March 11, 1994. Generally, Bankruptcy ...
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MEMORANDUM OPINION ON MOTION OF CENTENNIAL MORTGAGE CORP. FOR ALLOWANCE OF PRIORITY EXPENSE I. INTRODUCTION This case raises questions of first impression in this court regarding the interpreta *930 tion of 11 U.S.C. § 365(d)(3). The Debtor, Mr. Gatti’s, Inc., objects to the Motion For Allowance of Administrative Priority Expense filed by Centennial Mortgage Corp...
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MEMORANDUM DECISION This matter came on for trial before the Court on December 29,1993, on the amended complaint filed by Ameritrust National Bank, n/k/a Society Bank & Trust (“Ameritrust”), a creditor, and Robert Furr, Trustee (the “Trustee”) (collectively the “Plaintiffs”), objecting to the debtors’, Walter and Marian Davidson (the “Debtors”), discharge pursuant to 11 U.S.C. §§ 727(...
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DECISION Presently before the Court is Thomas A. DeClemente’s (“DeClemente”) motion to amend his answer, counterclaim and third-party complaint to include an objection to the dischargeability of his claim. This court has considered oral argument by counsel for the parties, the pleadings and legal memoranda submitted, and makes the following findings of facts and conclusions of la...
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OPINION This is an action to except a debt from discharge pursuant to 11 U.S.C. section 523(a)(2)(A). This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. section 1334. This is a core proceeding pursuant to 28 U.S.C. section 157(b)(2)(I). FACTS James F. Malget, Jr. (debtor) and Jeffrey L. Pipher (Pipher) were former co-workers and friends. In August or Sept...
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MEMORANDUM DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGEMENT I. INTRODUCTION Pepper/Holt Joint Venture, the plaintiff, has initiated this adversary proceeding against Roderick Group, Inc. and its wholly owned subsidiary, Hodevco, Inc., the debtor, to resolve a dispute regarding each party’s interest in a certain promissory note that is the debtor’s sole asset. Before the court is the plaintiffs m...
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DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT This matter comes before the Court upon a motion for summary judgment (“Motion”) by plaintiff, Bethpage Federal Credit Union (“Plaintiff’), determining that an alleged debt is owed by Joseph B. Mickel (“Debtor”) and that the debt is non-dischargeable. The Court has jurisdiction over this case pursuant to sec...
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*861 AMENDED 1 MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING COMPLAINT FOR TURNOVER OF PROPERTY AND FOR SANCTIONS FOR VIOLATION OF 11 U.S.C. § 362 The debtors, Jonathan D. and Laura J. O’Neal, have brought this adversary proceeding in response to a $116.00 loan payment automatically 'withdrawn from their personal checking account after they filed Chap...
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ORDER I. INTRODUCTION The plaintiff, First Tennessee Bank National Association (“Trustee”), filed this adversary proceeding on April 26, 1993 against Creekstone Apartments Associates and the Resolution Trust Corporation (“RTC”) as an interpleader action pursuant to Bankruptcy Rule 7022 and 28 U.S.C. § 1335 to determine the proper distribution of $167,260 currently held on deposit by ...
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MEMORANDUM I.Introduction: The question presented in this adversary proceeding is whether Franklin Equity Leasing Company (“FELCO”) violated the court’s June 23, 1993 Discharge Order by subsequently suing the debtor, Ramona E. Mau-pin, in state court to recover funds for the debtor’s post-petition use of a leased vehicle. For the reasons stated in this opinion, the court finds that FELCO did ...
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MEMORANDUM OPINION GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF THE PLAINTIFF The plaintiff moved for summary judgment based on the Truth in Lending Act, Maryland Credit Grantor Closed End Provisions, and the Maryland Consumer Protection Act. For the reasons stated, the plaintiff’s motion for summary judgment shall be granted in part and denied in part. This Court has found that the defendan...
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MEMORANDUM GRANTING THE DEBTORS’ PETITION FOR CONTEMPT FOR VIOLATION OF THE AUTOMATIC STAY I. INTRODUCTION The question presented is whether Eleventh Amendment sovereign immunity bars a federal bankruptcy court from issuing a money judgement against a state for attorney’s fees incurred in litigation awarding declaratory or injunctive relief for the state’s violation of the automatic stay impo...
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MEMORANDUM OPINION PARTIALLY DENYING DEBTORS’ MOTION TO AVOID JUDICIAL LIENS FINDINGS OF FACT 1. On June 6, 1991, the debtors, Ronald N. Esler and Phyllis A. Esler, filed the instant voluntary Chapter 7 bankruptcy petition. 2. In their Schedule B-l (real property), they disclosed a one-half ownership interest in “house and lot located at 1221 Calvert Road, Rising Sun, Ce...
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OPINION Before the Court is the objection of Ranger Insurance Company to Delta Underground’s motion for approval of an agreed order allowing settlement and compromise of claims, allowed unsecured claims and other relief, and the motions to dismiss or strike the objection of Ranger Insurance filed on behalf of Delta Underground, The Edge *597 Companies, Inc., Chevron U.S.A...
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MEMORANDUM DENYING THE DEBTORS’ MOTION TO DETERMINE TAX LIABILITY AND OBJECTION TO CLAIM OF THE INTERNAL REVENUE SERVICE I. INTRODUCTION: This matter comes before the court on the debtors’ Motion to Determine Tax Liability and Objection to Claim of the Internal Revenue Service. In their objection, the debtors sought an order disallowing the proof of claim filed by the IRS for tax years 1982, 1983...
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MEMORANDUM OF DECISION Before the court is a motion for summary judgment filed on December 10, 1993, by the plaintiff Mark E. Tulin (Tulin). The defendant, George R. Recck (Recck), had not obtained counsel at that time. Recck did secure the assistance of counsel who was granted leave until February 24, 1994, to file necessary papers. On February 22, 1994, Recck, through counsel, responded...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court for confirmation of debtors’ chapter 13 plan. At the hearing held January 4, 1994, the standing chapter 13 trustee and an unsecured creditor, Vector Industries LP, Ltd., (“Vector”) objected to confirmation. Upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court for confirmation of a chapter 13 plan on November 9, 1993. The standing chapter 13 trustee objects to confirmation of the amended plan of August 27, 1993. Upon the evidence presented at the hearing, the Court enters these findings of fact and conclusions of law: Findings of Fact Debtors filed their chapter 13 petiti...
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DECISION AND JUDGMENT PRELIMINARY STATEMENT This matter comes before the Court upon an adversary proceeding (“Adversary Proceeding”) commenced by the above-captioned plaintiff (“Plaintiff’) against the above-referenced debtor (“Debtor”). The Court has jurisdiction over this case pursuant to sections 157(a), 157(b)(1) and 1334(a) of title 28, United States Code (“title 28”) and the order of referra...
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*297 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon a Motion for Rehearing of an order granting motion to value collateral of Hancock Bank (“Hancock Bank”). The Court held a hearing on January 5, 1994, and upon the evidence presented enters these findings of fact and conclusions of law: Findings of Fact Debtors filed their petition un...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court for confirmation of debtor’s chapter 12 plan on December 9, 1993. Farm Credit of North Florida, ACA (“association”) objects to confirmation of the plan. Upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact The association is a member-owned agricultural credit cooper...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon motion of debtor to assume lease. Carolina Arms Limited Partnership objected to debtor’s motion and on October 13, 1994, the Court held a hearing. Upon the evidence presented, the Court makes the following findings of fact and conclusions of law: Findings of Fact Prior to filing her petition, debtor leased an apa...
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DECISION AND ORDER ON MOTION FOR SANCTIONS PRELIMINARY STATEMENT This matter comes before the Court upon two motions. The plaintiff (“Plaintiff’) moved for a protective order, expenses and sanctions in connection with a discovery dispute (“Motion”) with the debtor/defendant (“Defendant”). Defendant cross-moved (“Cross-motion”) in opposition to the Motion and for dismissal of certain claims fo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon debtor’s objection to claims 11 and 12 filed by Resolution Trust Corporation n/k/a Standard Federal Savings Bank (“Standard Federal”) and upon Standard Federal’s motion to dismiss the ease. The Court held hearings on March 2, 1993, and May 18, 1993, on the motion to dismiss and entered an interim order denying the moti...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the objections to exemption of Glickman, Witters and Marell, P.A. and the chapter 7 trustee. The Court held a hearing on November 10, 1993, and upon the evidence presented enters these findings of fact and conclusions of law. Findings of Fact Since 1981, debtor has worked as a real estate agent in West Palm Beach...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding seeking to determine the vahdity, priority and extent of hen came before the Court for trial on August 26, 1993. On May 13, 1993, this Court entered an order consolidating this adversary proceeding with plaintiffs objections to claim 3469, amended by claims 3778 and 3779, for all purposes. Accordingly,' the adversary proceedi...
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ORDER FOR WITHDRAWAL OF DECISION AND DISMISSAL . OF APPEAL On November 10, 1993, the Panel filed its decision affirming the trial court. The published opinion is reported as In re Specialty Plywood, Inc., 160 B.R. 627 (9th Cir. BAP 1993). A notice of appeal to the Ninth Circuit Court of Appeals was filed on November 19, 1993. Subsequently, the parties reached a settlement. The panel has reviewed t...
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DECISION AND ORDER PRELIMINARY STATEMENT The contested matter before the Court involves a dispute between two parties to a cash collateral stipulation: counsel to the debtor, Finkel, Goldstein, Berzow & Rosen-bloom (“Debtor’s Counsel”) and a creditor holding a secured claim, General Motors Acceptance Corporation (“GMAC”) The Court has jurisdiction over this case pursuant to sections 157(a), 157(b...
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ORDER ON OBJECTION TO CLAIM OF THE UNITED STATES THIS IS a Chapter 13 case and the matter under consideration is an Amended Objection to a Claim filed by the United States of America, through the Internal Revenue Service (IRS). The Objection was filed by Patricia Marie Blanco (Debtor), and is based on the contention that she should be absolved of the tax liabilities claimed by the IRS. The Debtor ...
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MEMORANDUM OPINION This matter comes before the Court on the motion of John A. Maurice (the “Debtor”) to stay an order pending appeal. For the reasons set forth herein, the Court hereby denies the motion. I. JURISDICTION AND PROCEDURE The Court has jurisdiction to entertain this motion under 28 U.S.C. § 1334 and Local General Rule 2.33(A) of the United States District Court for the Nort...
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MEMORANDUM OPINION The following matters come before the Court: the motion of John F. Dornik (“Dor-nik”) to lift the automatic stay and for other relief including sanctions against John A. Maurice, (the “Debtor”), and his attorney Kenneth Kozel (“Kozel”); the motion of Craig Phelps, the Chapter 13 standing trustee (the “Trustee”) to dismiss the Debtor’s Chapter 13 case; the Debtor’s m...
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*211 MEMORANDUM OPINION The narrow issue presented before the Court is the dischargeability of guardian ad litem fees incurred in connection with a divorce decree. In making its decision, the Bankruptcy Court looks only to the facts establishing the appointment of the guardian ad litem and the Superior Court’s order charging the debtor for a portion of the fees charged to find if these fact...
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166 B.R. 631 (1994) In re Roger A. MESSENGER, Jr. and Sheryl B. Messenger, Debtors. Robert H. WALDSCHMIDT, Trustee, Plaintiff, v. CHRYSLER CREDIT CORP., Defendant. Bankruptcy No. 93-07080-KL3-7. Adv. No. 393-0432A. United States Bankruptcy Court, M.D. Tennessee. April 8, 1994. *632 *633 Robert H. Waldschmidt, Trustee, Nashville, TN, pro se. W. Neal McBrayer, Nashville, TN, for Chrysler Credit Cor...
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DECISION AND ORDER RELEVANT FACTS AND LEGAL DISCUSSION Before the Court 1 is a motion by Plaintiff for an order authorizing amendment of her Adversary Proceeding complaint to add an additional claim for relief. Plaintiff seeks to have the added claim relate back to the original pleading so that it is not time-barred. See Fed.R.Civ.P. 15(c) (1994) (made applicabl...
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*320 MEMORANDUM LSI Financial Group (LSI) objects to the dischargeability of the debtor’s obligation to LSI pursuant to 11 U.S.C. § 523(a)(6). The issue presented is whether the debtor’s failure to keep her automobile insured constitutes a willful and malicious injury to LSI’s interest in the automobile. The court concludes that, under the circumstances presented here, it does not. The foll...
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MEMORANDUM OF DECISION GRANTING MOTION TO EXTEND TIME TO OBJECT TO DISCHARGE AND DIS-CHARGEABILITY In a bench ruling at the December 7,1993 hearing in this matter, we granted 1 the timely filed motions of Committee and Trustee to extend the time to file complaints objecting to Debtor’s discharge under § 727 2 or to the dischargeability of particular debts under § 523...
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OPINION AND ORDER The Court has for its consideration Debt- or’s Motion for Recusal, filed June 2, 1993, pursuant to Title 28 U.S.C. § 455 for disqualification of a Federal Judge from acting in a particular case on the grounds that the Debt- or believes this Court “... has formed an opinion about its motivations, litigation tactics and management, which has resulted in prejudice and b...
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OPINION AND ORDER Movant, Security Insurance Corporation of Hartford (SICOH), has filed a Motion and Request for Payment of Administrative Claim with regard to workmen’s compensation coverage furnished to the Debtor-In-Possession post-filing. Objections have been filed by the Debtor-In-Possession as well as the Commonwealth of Pennsylvania, Department of Labor and Industry, Office of Employme...
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DECISION AND ORDER BACKGROUND On August 5, 1992, the Debtor, Phillip E. Tyler (the “Debtor”) filed a petition initiating a Chapter 13 case. On his schedules, he listed his ownership of 2240 Hydesville Road, Palmyra, New York, (“Hydesville Road”) which he valued at $160,000 with total liens against it of approximately $395,000. One of the liens listed was a November 1988 first mortgage with an...
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MEMORANDUM I. BACKGROUND The matter before the Court arises from a “Complaint to Determine Extent and Priority of Liens” (“Complaint”) filed by Plaintiff, Marguerite C. McDonough (the “Plaintiff” or the “Debtor”), against Defendant, Plaistow Cooperative Bank (the “Defendant” or “Plaistow”), in which the Plaintiff, pursuant to 11 U.S.C. § 506(d), seeks to avoid a judicial hen held...
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DECISION Deborah Anne Henady filed a petition for relief under Chapter 7 of the United States Bankruptcy Code on July 30, 1993. The scheduled assets include a claim against her ex-husband in the amount of $22,000.00. This claim arises out of his failure to pay weekly support and various health care expenses for their children, as ordered by the Newton Circuit Court. On Schedule C, debt- or cl...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This Chapter 13 case concerns the extent of the codebtor stay found in Section 1301(c)(1) of the Bankruptcy Code. 11 U.S.C. § 101 et seq. 1 JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District...
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This matter 1 is before the court on Plaintiffs motion to strike Defendant’s jury demand. FACTS Atlantic Computer Systems, Inc. (the “Debtor” or “Atlantic”) brings this adversary *782 proceeding against Mutual of Omaha Insurance Co. (the “Defendant” or “Mutual”), to (i) avoid, as a preference, Mutual’s attempted perfection of its security interest in certain property; (ii) determine the p...
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DECISION In this adversary proceeding, the plaintiff, Ronald A. Schaefer, seeks a determination that the debtor, Tad M. Ballantyne, is indebted to him in the amount of $527,577 and that, pursuant to §§ 523(a)(2), (4) and (6) of the Bankruptcy Code, such debt is nondisehargeable. In addition, Schaefer asks that Ballan-tyne be denied a discharge, pursuant to §§ 727(a)(2)(A) and (B) and ...
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MEMORANDUM OPINION DENYING DEBTOR’S MOTION TO DISMISS COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT FOR FAILURE TO STATE A CLAIM FOR WHICH RELIEF CAN BE GRANTED The debtor filed a motion to dismiss the instant complaint to determine dischargeability of debt for failure to state a claim for which relief can be granted, pursuant to F.R.Civ.P. 12(b)(6) and Bankruptcy Rule 7012. The mo...
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ORDER ON TRUSTEE’S OBJECTION TO AMENDED PROPERTY CLAIMED AS EXEMPT THIS CAUSE came on for consideration, upon Trustee’s Objection to Exemptions claimed by Debtor in the above captioned case. The Court has considered the Objection, together with the record, and finds the undisputed facts as follows: Debtor filed for relief under Chapter 11 of Title 11 United States Code, on May 5, 198...
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MEMORANDUM I. PROCEDURAL BACKGROUND The matter before the Court for determination is the Motion of the plaintiff, Cenith Partners, L.P. (“Cenith” or the “plaintiff”) to remand the above-referenced civil action (the “action”) which was removed by the defendants, Hambrecht & Quist, Inc. (“H & Q”) and George Montgomery (“Montgomery”) (collectively the “defendants”) to this Court from th...
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MEMORANDUM DECISION REGARDING MOTION TO LIFT AUTOMATIC STAY AND REQUEST FOR AUTHORIZATION TO REPOSSESS COLLATERAL Debtor purchased a 1992 Honda Accord on August 22, 1992, and entered into a motor vehicle installment agreement with Shawmut Bank, N.A. (the “Bank”). On September 15, 1992, she registered the motor vehicle in New Hampshire and listed the Bank as the lienholder on the application for ...
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ORDER Before us is the Chapter 7 Trustee’s Motion to Assert Interest in Insurance Proceeds, and the objection of New London Trust Federal Savings Bank (New London) thereto. The relevant facts are these: On July 7, 1993, New London conducted a mortgagee’s foreclosure sale of the Debtor’s property, and was the successful bidder in the amount of $82,905.81, which was the full amount due under ...
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ORDER Before the Court is the Chapter 7 Trustee’s objection to claims filed by the Iron Workers District Council of New England. The Union argues that these claims, filed under 11 U.S.C. § 507(a)(4), totaling $85,492, are entitled to priority status as unpaid employer contributions to employee benefit plans. 1 The Trustee objects on the ground that the amount claimed as priority exceeds the...
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OPINION This is an action to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(4) and (a)(6). This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. *155 § 1384. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)®. FACTS Roger Gordon (plaintiff) owned Gordon Sand & Gravel, Inc. In 1986 he instituted a pension retirement pla...
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OPINION A INTRODUCTION Before this court is the Objection (“the Objection”) of FRANCES D. HARNED (“the Debtor”) to the amended proof of claim (“the Claim”) filed by Boulevard Mortgage Company (“Boulevard”), the mortgagee of the Debtor’s home. The Objection calls into question the important issue of the proper interest rate which must be paid on home-mortgage arrearages which ...
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MEMORANDUM OF DECISION AND ORDER ON MOTION TO REOPEN I. ISSUE Peter C. Dorsey and Cornelia M. Dorsey (the movants) have moved to reopen the Chapter 7 case of Donald C. Pratt (the debt- or) for the sole purpose of filing a complaint to determine the dischargeability of an unliq-uidated claim they hold arising out of the debtor’s alleged fraudulent conduct. The movants ass...
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RULING ON MOTIONS FOR SUMMARY JUDGMENT I. ISSUE The matters before the court are motions for summary judgment brought by two defendants in an adversary proceeding commenced by Pepsi-Cola Newburgh Bottling Co., Inc. (Newburgh) as a Fed.R.Bankr.P. 7022 interpleader action. Newburgh seeks to have the court determine the rights to the proceeds of a noncompetition agreement and a consulting agreem...
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OPINION Prior to its Chapter 7 bankruptcy filing, debtor Alpha Center, Inc. (“Alpha”), a not-for-profit corporation, provided mental health and counseling services to low income individuals in Pulaski and Alexander counties, Illinois. Alpha ceased operations in June 1992, and defendant Delta Center, Inc. (“Delta”), became the state-designated agency in place of Alpha to provide such s...
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ORDER The matters before the Court are Union Colony Bank’s (Bank) objection to debtor’s claim of exemption in a 1979 Century Classic, 24 x 52 foot mobile home (Mobile Home) and the issue of whether sanctions should be imposed against the debtor’s former counsel. The matters have been pled and briefed. The Court does not find that additional evidence or testimony is necessary to resolve th...
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DECISION AND ORDER: (1) VACATING THE ORDER OF CONFIRMATION, AND (2) REVOKING DISCHARGE Heard on October 25 and 26, 1993 on Plaintiffs’ Complaint requesting denial of the Debtor’s discharge under 11 U.S.C. § 727(a) or alternatively, revocation of the Order of Confirmation, pursuant to 11 U.S.C. § 1144. The Plaintiffs allege that the Debtor did not list them as creditors in her bankrupt...
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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)(A) and (0), which the Court may hear and determine. Venue is proper pursuant to 28 ...
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RULING AND ORDER O'íflbEBTOR’S MOTION TO AVOID LIEN I. ISSUE F. James Ash, the debtor in this Chapter 7 case, has moved to avoid a judicial hen (real estate attachment) impairing the federal homestead exemption he elected pursuant to Code § 522(d)(1). Robert Kaufman (Kaufman), the holder of the lien, contends that the hen may not be avoided because any debt arising from ...
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OPINION AND ORDER Before the Court 1 is a motion, filed within Debtor’s above-captioned adversary proceeding, by Poughkeepsie Savings Bank, FSB (“Movant”) for relief from the automatic stay 2 . Movant seeks this relief to pursue its appeal of a judgment rendered in favor of Debtor by New York’s Columbia County Supreme Court. RELEVANT FACTS Prior to Debtor’s...
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MEMORANDUM The matter before this court is a Petition (“the Petition”) of Michael Turner (“the Petitioner”), a non-attorney, to resume providing services to debtors under the supervision of a new attorney, Erik B. Jensen, Esquire (“Jensen”), who prosecuted the Petition on his behalf. The Petition was necessitated by this court’s finding of unauthorized practice of law on the part of t...
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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. PROCEDURAL BACKGROUND 1. Ric...
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OPINION AND ORDER On October 13, 1992, G.A. Resources, A Pennsylvania Partnership, (hereinafter “G.A. Resources”), filed a Complaint for Injunctive Relief against Laurel Run Corporation, (hereinafter “Debtor”), alleging that a certain culm lease and royalty agreement entered into between the parties on September 13, 1991 had been breached by the Debtor resulting in damages to G.A. Resources wit...
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MEMORANDUM DECISION REGARDING COURT’S SUBJECT MATTER JURISDICTION In its decision dated March 3, 1994, the Court granted the Debtor’s motion to appoint an examiner in this Chapter 11 case. Keene Corp. v. Coleman (In re Keene Corp.), 164 B.R. 844 (Bankr.S.D.N.Y.1994). On March 11, 1994, the Court entered its order (the “Examiner Order”) directing the United States Trustee to app...
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MEMORANDUM OF DECISION It is a rare thing for a court to have to write a decision overruling a legal argument which is patently meritless, but circumstances now require exactly that. The law firm of Hessinger & Associates has taken the position that there is an implicit exception to the Bankruptcy Code for attorneys. Hes-singer argues that after it has filed a Chapter 7 bankruptcy for a c...
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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)(B), which the Court may hear and determine. PROCEDURAL BAC...
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OPINION AND ORDER The Debtors, Robert Mass and Yvonne J. Mass, (hereinafter “Plaintiffs”), commenced this action against Bell Atlantic Tricon Leasing Corp. and First Eastern Bank, (hereinafter “Defendant” and “Bank”, respectively), requesting this Court to order the Defendant and Bank to turnover to the Plaintiffs property of the estate consisting of an account at the Bank which was garnished by...
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166 B.R. 195 (1994) In re Cheryl CLINTON, Debtor. Bankruptcy No. 93-75417. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. April 11, 1994. Vernitia A. Shannon, Atlanta, GA, for debtor. M. Regina Thomas, Atlanta, GA, Trustee. *196 DECISION AND ORDER DENYING MOTION TO ADD PARTY JAMES E. MASSEY, Bankruptcy Judge. Cheryl Clinton, the Debtor, moves for an order permitting her spouse...
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OPINION I Connecticut General Life Insurance Company (“Connecticut General”) appeals from the orders confirming the First Amended Plan of Reorganization submitted by the Paragon Group (the “Paragon Plan”) and denying confirmation of the competing Plan of Reorganization filed by C.R.H.C. of Tucson, Inc. (the “CRHC Plan”). II FACTS Hotel Associates of Tucson (“the Debtor...
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166 B.R. 484 (1994) In re Amado J. IZAGUIRRE, Debtor. ANTHEM LIFE INSURANCE CO., Plaintiff, v. Amado J. IZAGUIRRE, Defendant. Bankruptcy No. 92-70435. Adv. No. 93-6165. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. March 22, 1994. *485 *486 Bradley L. Cooper of Alston & Bird, Atlanta, GA, for Anthem Life Ins. Co. No one appeared on behalf of the debtor. ORDER DENYING PLAINTI...
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MEMORANDUM OPINION The application of Debtor, Bonnie Ruth Bradford, to avoid the judicial lien (Docket No. 7) of her former husband, Emery Bradford, pursuant to 11 U.S.C. § 522 was tried during the week of March 21, 1994. Trial was concluded March 25,1994. Both parties appeared and were represented by counsel. Findings of Fact After considering the pleadings, evidence, and arguments of ...
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MEMORANDUM OPINION The Court has heard the Application for Order Authorizing Employment of Wynne & Maney as Special Litigation Counsel to the Debtor (Docket No. 29) and Supplement (Docket No. 31), and the opposition by National Commerce Bank (“NCB”). After considering the pleadings, evidence, and arguments of counsel, the court makes the following Findings of Fact and Conclusions of L...
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MEMORANDUM OPINION This matter originated as a Complaint for Turnover of a 1993 Ford Mustang to Debtor by Southwest Recovery, an organization that repossess motor vehicles. The court makes the following Findings of Fact and Conclusions of Law and enters a separate Judgment in conjunction herewith, regarding turnover upon certain payments and adequate protection. To the extent any Findings of ...
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MEMORANDUM OPINION The Court held hearings on various Motions for Allowance of Administrative Claims as identified on Exhibit A. Pursuant to the record established at the hearings, the argument of counsel, and the Court’s own independent research, this Memorandum Opinion is being entered as Findings of Fact and Conclusions of Law under Bankruptcy Rules 7052 and 9014. This contested ma...
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MEMORANDUM OPINION This matter comes before the Court on Kevin R. Huennekens’s (“Huennekens” or “The Trustee”) motion for summary judgment on a counterclaim in three counts made by Carroll Lee Walker (“Walker”) that was submitted with his answer to a complaint filed by the trustee. This Court has jurisdiction over the matter by virtue of 28 U.S.C. § 1334 and Title 11 of the United Sta...
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OPINION AND ORDER This action is initially before the Court on a Complaint requesting a determination that a debt owed to the Plaintiff in excess of One Million Dollars be declared non-dischargea-ble pursuant to 11 U.S.C. § 523(a)(6). For the reasons provided herein, the Court denies the Plaintiff’s Motion for Summary Judgment. The facts are as follows. Following a civil non-jury...
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PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Hilda Gore (“Plaintiff’), the executrix of the estate of Bernard Gore (“Gore”), has moved under Federal Rule of Civil Procedure 56(a), made applicable to this proceeding by Federal Rule of Bankruptcy Procedure 7056(a), for an order granting partial summary judgment against the debtor. The plaintiffs motion, which alleges fraud or defalca...
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MEMORANDUM OPINION AND ORDER United Merchants and Manufacturers, Inc. objects to the proof of claim of the International Ladies’ Garment Workers’ Union National Retirement Fund. The United States District Court for the District of Delaware denied the Fund’s motion to withdraw the reference of this objection. This is the court’s decision on this core proceeding. 28 U.S.C. § 157(b)(2)(B...
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MEMORANDUM OF DECISION Plaintiff Sobel Building Development Partners (“Sobel”) seeks declaratory relief against William H. Broach (the “Trustee”) declaring its right to a fund of $71,000 (the “Sale Proceeds”) in the Trustee’s possession. The Trustee moves to dismiss the complaint for failure to state a claim. For the reasons stated below, the motion is granted without prejudice. Although the two ...
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*418 MEMORANDUM OF DECISION John T. Kendall, the duly appointed trustee of the above-captioned chapter 7 estate (the “Trustee”), objects to the claim of a homestead exemption by a debtor (the “Debtor”) who died shortly after filing the bankruptcy petition. For the reasons stated below, the Court concludes that the Trustee’s objection should be overruled, and the deceased Debtor’s claim of exe...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTION THIS IS a Chapter 7 case and the matter under consideration is an Objection to the claim of exemption of John Malcolm Snape and Rhoda G. Snape (Debtors). The Objection was filed by The Village of Cross Keys, Inc. (Cross Keys) an unsecured creditor of the Debtors. The Objection to the Debtors’ claim of exemptions asserted by Cross Keys is two-fold. ...
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ORDER ON ORDER TO SHOW CAUSE RE: CONTEMPT THE MATTER under consideration is a Request for Order to Show Cause filed by V. John Brook, Jr., (Trustee) who sought the issuance of an Order to Show Cause directing William and Elizabeth Pugh (Debtors) to show cause, if they have any, why they should not be held in contempt for not turning over certain assets claimed to be properties of the esta...
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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 one-count Complaint filed by Roses Pham (Plaintiff) seeking to except a debt owed to her by Phong Baccam (Debtor) from his general discharge pursuant to § 523(a)(2)(A). The facts relevant to resolution of this controversy as established at the final evidentiary h...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case in which the issue of whether or not the Plaintiff in Adversary Proceeding No. 92-273, International Paper Company (International Paper), and the Plaintiff in Adversary Proceeding No. 92-273, Adams Farms, et al. (Adams Farms), are in fact creditors thus have standing to prosecute these adversary proceedings. The *...
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MEMORANDUM OPINION Presently before the court is the Motion of the Class 4(b) Creditors to Dismiss Debtor’s Chapter 11 Petition (Case No. 93-1304). After a review of the pleadings and briefs, the relevant case law and argument of counsel, it is the decision of this court that the motion to dismiss is granted. FACTS Delaware Valley Broadcasters Limited Partnership (Debtor) is the owner/o...
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MEMORANDUM OF DECISION Before the court is the rehearing of the trustee’s objection to debtor’s claim of exemptions. Debtor claimed various assets as exempt by virtue of his ownership of the same together with his wife, Robin S. Pernia, as tenants by the entirety. Pursuant to court memorandum filed January 10, 1994, the parties submitted additional memoranda in support of their positions. T...
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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 challenge by James A. Miller (Miller) of the right to a general bankruptcy discharge of Myron Levine and his wife, Jacquelyn Levine (Debtors). The challenge is set forth in the Amended Complaint filed by Miller consisting of one count in which it is alle...
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ORDER ON MOTION FOR CONTEMPT AND MOTION TO STRIKE PLAINTIFFS’ MOTION FOR CONTEMPT THIS IS a Chapter 7 case and the matter under consideration is a Motion for Contempt filed on February 9, 1994 by Paul A. Bilzerian (Bilzerian), in proper person. Bilzerian in his Motion seeks a citation of civil contempt and imposition of sanctions against Lawrence L. Scott (Scott). On February 12,1994 Scott filed a...
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*450 Order on Motion to Reconsider the Order on Debtor’s Objection to Berliner Handels-und Frankfurter Bank’s Unsecured Claim and Motion for Reclassification to Class 1 Claim Entered by the Court on September 29, 1993; Motion to Reconsider the Order on Debtor’s Motion for Clarification of Debtor’s Objection to Berliner Handels-und Frankfurter Bank’s Unsecured Claim, and on Motion to Reconsider ...
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ORDER ON OBJECTIONS TO CLAIMS OF EXEMPTIONS THESE ARE two non-eonsolidated Chapter 7 cases which involve the same identical issue, that is the timeliness of an Objection to the claims of exemption of Robin and Elaine Lyle, the Debtors in Case Number 93-3269-8P7 and Jerry and Janice Weissman, the Debtors in Case Number 93-1905-9P7. The Objection to the claim of exemptions was filed by Step...
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ORDER ON OBJECTION TO SUBPOENA FOR HEARING, MOTION FOR PROTECTIVE ORDER AND REQUEST FOR SANCTIONS THIS IS a yet-to-be confirmed Chapter 11 case involving Edgewood General Partnership (Debtor) in which Daper Tampa, Inc. (Daper), a Florida corporation is the general partner. Mr. Joseph Simon (Mr. Simon), serves as an officer and director of Daper. The Objection and Motion under consideration were...
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ORDER DENYING MOTION TO DISMISS THIS IS a Chapter 13 case and the matter under consideration is a Motion to Dismiss the case of Robert and Hope Scott (Debtors). The challenge to relief under this Chapter is interposed by Peter Zaremba (Zaremba) who contends that the Debtors filed their Petition for Relief in bad faith and, therefore, their Chapter 13 ease should be dismissed. In the alternative...
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*463 FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS an adversary proceeding commenced in these yet-to-be-confirmed Chapter 11 cases of Hillsborough Holdings Corporation (HHC), now known as Walter Industries, Inc., and its 31 wholly-owned subsidiaries (collectively referred to as the Debtors). In this connection, it should be noted that none of the Chapter 11 ...
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ORDER DISMISSING CHAPTER 7 CASE The matter before the court is the Bankruptcy Admmistrator’s motion to dismiss the chapter 7 case for substantial abuse pursuant to 11 U.S.C. § 707(b). A hearing was held on April 6, 1994, in Raleigh, North Carolina. Eric Dominguez filed his voluntary petition for chapter 7 relief on November 16, 1993. At the time of the petition the debtor lived in Durham, Nor...
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166 B.R. 365 (1994) In re Russell Dean JOHNSON, Debtor. AMERICAN FAMILY FINANCIAL SERVICES, INC., Plaintiff, v. Russell Dean JOHNSON, Defendant. Bankruptcy No. 3-93-2574. Adv. No. 3-93-203. United States Bankruptcy Court, D. Minnesota, Third Division. April 22, 1994. *366 Dennis J. Holisak, Edina, MN, for debtor/defendant. D.H. Seel, Bloomington, MN, for plaintiff. ORDER DENNIS D. O'BRIEN, Chief...
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MEMORANDUM OPINION The issue before the court is whether Sandra L. Rishel’s (“Debtor”) attorneys’ fees are considered to be “compensation of the trustee” within the meaning of 11 U.S.C. § 363(j), thus disallowing the payment of attorneys’ fees as a cost and expense of the sale of property. After careful consideration and for the reasons stated below, the court determines that when a d...
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ORDER On January 13, 1994, objections to the Trustee’s Final Report were heard by this Court. James L. Snyder appeared on behalf of the U.S. Trustee’s office. Creditor, Bishop Engineering, Inc. Employee Profit Sharing Plan (“Profit Sharing Plan”) appeared by its attorney, David H. Goldman. Creditors, Bishop Engineering, Inc. and Barry and Joan Bishop (“the Bishops”) were represented b...
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OPINION BayBank has filed a $2,212,168 claim for “superpriority” under section 507(b) of the Bankruptcy Code. BayBank contends that orders of this court deprived it of adequate protection of its security interests in the property of Halmar Distributors, Inc. and its affiliate, Ralar Distributors, Inc. (the “Debtors”). The Debtors object to the claim. Resolution of the controversy invo...
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*271 MEMORANDUM OPINION Debtor Tina Marie Stone (“Stone”) has brought a motion (at Motion No. 93-1889M) to hold Robert Kasuba (“Kasuba”) in contempt for disobeying an order issued on March 5, 1993 which, among other things, enjoined him from the unauthorized practice of law in this court in the future. Stone asserts that Kasuba disobeyed the order in offering legal advice and by preparing t...
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MEMORANDUM OPINION Green Tree Consumer Discount Company (“Green Tree”) has brought a motion (at Motion No. 93-1738M) for permission to appraise debtors’ mobile home. Debtors assert that Green Tree’s request is “in bad faith” and insist that it is “estopped” from so requesting. They ask that a sanction in the amount of $300.00 be imposed upon Green Tree pursuant to Federal Rule of Civil Proced...
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MEMORANDUM OPINION Chrysler Corporation (hereinafter “CC”) has brought a motion seeking payment of its chapter 11 administrative claim and permission to satisfy the claim pursuant to a provision in an assumed executory contract which authorized CC to “apply” any “credit” due and owing to debtor to any debt owed by debtor to CC. Debtor does not object to allowance of CC’s administrative claim in...
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On this motion for summary judgment, the issue presented to the Court is whether a consumer-debtor’s conversion of proceeds from the sale of secured assets gives rise to a liability that is per se nondischargeable. Ross David Contella, the debtor herein, purchased a John Deere lawn and garden tractor, together with various accessories, on August 28, 1989. At the time of purchase...
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MEMORANDUM Hearing was held on December 8,1993, on a Motion for Summary Judgment filed by defendant. Appearing on behalf of trustee/plaintiff was John Siegler of Sims, Walker & Steinfeld, P.C., Washington, D.C. Appearing on behalf of defendant was Peter A. Greene, Thompson, Hiñe and Flory, Washington D.C. Also appearing on behalf of defendant was Gerald L. Friedrichsen, Fitzgerald, Sc...
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166 B.R. 581 (1994) In re HERMAN'S SPORTING GOODS, INC., Debtor. Bankruptcy No. 93-31529. United States Bankruptcy Court, D. New Jersey. April 18, 1994. Corey Lipoff, Jones, Day, Reavis & Pogue, New York City, Elizabeth S. Kardos, Crummy, Del Deo, Dolan, Griffinger & Vecchione, *582 Newark, NJ, for Herman's Sporting Goods, Inc., debtor. Richard M. Meth, Friedman Siegelbaum, Roseland, NJ, ...
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MEMORANDUM OF DECISION Creditor Peoples Heritage Savings Bank (“Peoples”) submitted an application for allowance and payment of an administrative expense (the “Application”). After due deliberation, this Court holds that Peoples’ administrative claim is entitled to superpriority only over Chapter 11 administrative expenses. I. BACKGROUND On January 21, 1993, the Debtor, ...
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ORDER FOR DISGORGEMENT OF FEES THIS MATTER is before the court sua sponte pursuant to F.R.P.B. Rule 2017(a) for determination as to whether the fees paid by the debtor in this case to his attorney for services rendered was excessive. A hearing was conducted on March 31, 1994 on notice to the debtor’s attorney, Arthur G. Haller, following which Mr. Haller was directed to file with the court his t...
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ORDER FOR DISGORGEMENT OF FEES THIS MATTER is before the court sua sponte pursuant to F.R.B.P. Rule 2017(a) for determination as to whether the fees paid by the debtor in this case to his attorney for services rendered or to be rendered is excessive. The hearing was conducted on March 31, 1994 on notice to the debtor’s attorney Arthur G. Haller, following which Mr. Haller was directed to file wi...
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MEMORANDUM OF DECISION The standing Chapter 13 Trustee (“the Trustee”) has moved this Court to dismiss, 1 or in the alternative convert, this proceeding on the basis that the debtor George Jordan, Jr. (the “Debtor” or “Jordan”) is ineligible for relief under Chapter 13 because the aggregate amount of Jordan’s unsecured debt exceeds the statutory limit of $100,000 imposed by...
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MEMORANDUM OPINION ON VALUATION OF COLLATERAL The above-styled cases came on for hearings before the Court on February 10, 1994, on creditors’ motions to value collateral. The Court has elected to consolidate discussion of the cases due to the virtually identical fact patterns and arguments involved in both cases. Debtor Charles F. Rowland and Debtors Joseph and Carrie Edwards filed petitio...
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MEMORANDUM OF OPINION This case was commenced by the filing of a Petition instituting a case under Chapter 11 and listing Joseph A. Trevino as the attorney for the Debtor on June 24, 1993. Mr. Trevino also filed a Statement of Compensation pursuant to Rule 2016(b) at that time. However, no application to approve employment of counsel was filed at that time. On July 15, 1993, Debtor’s Plan under...
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MEMORANDUM OF DECISION ON MOTION TO AVOID TAX LIENS UNDER 11 U.S.C. § 545(2) *813 Debtors bring this motion 1 to avoid federal and state tax liens and raise issues regarding a Chapter 7 debtor’s ability to avoid liens under 11 U.S.C. § 545(2). 2 We deny Debtors’ motion and hold that a Chapter 7 debtor does not have standing to bring an action to avoid such l...
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MEMORANDUM OPINION I. Introduction The matter before the court is a motion for partial summary judgment on an objection to claims filed on behalf of the Committee of Creditors Holding Unsecured Claims and the Committee in its separate post confirmation capacity as representative of the estate of Papercraft Corporation (hereafter “Committee” and “Debtor” respectively). Pursuant to...
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MEMORANDUM OPINION This matter came before the Court on the Debtor’s Verified Objection to Claim No. 1 of the Internal Revenue Service. Appearing as attorney for the Debtor, Charles Sirman, was Robert Branson. Philip Doyle appeared as attorney for the United States of America, Internal Revenue Service, and Richard Palmer, Trustee, appeared. After consideration of arguments of counsel ...
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ORDER ON MOTION FOR RECONSIDERATION OF CLAIM OF THE INTERNAL REVENUE SERVICE This Order constitutes the Court’s ruling on the United States’ Motion for Reconsideration of its Claim against the estate of Wor-thington Investments, Inc., and the Chapter 7 Trustee’s Memorandum Contra. At the conclusion of a hearing held March 22, 1994, the Court took this matter under advisement. In making its deter...
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AMENDED DECISION OPINION ON MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION At issue is whether a Liberian corporation, which is both a chapter 11 debtor and the *224 indirect owner of a majority interest in a Greek limited partnership, may vest this court with personal jurisdiction over the limited partnership on the theory that the partnership is a mere departm...
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MEMORANDUM OPINION This matter comes before the Court on Jay and Betty Jones’ (“Debtors”) Motion to Avoid Judicial Lien of Pinnacle Bank/Harvey. 1 The Court denies the Debtors’ request for rehef. JURISDICTION The Court has jurisdiction over this matter pursuant to 28 U.S.C. Section 1334 and General Rule 2.33(A) of the United States District Court for the Northern Dist...
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Memorandum of Decision on Motion for Relief from Stay or to Dismiss Case This contested matter is before us 1 on FGH’s motion for rehef from stay or for dismissal of Kent’s chapter 11 petition. 11 U.S.C §§ 101, et seq 2 Following oral argument of FGH’s motion on September 23, 1993, and an agreed briefing schedule, we requested supplemental briefs address...
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MEMORANDUM DECISION REGARDING THE TRUSTEE’S CLAIMS UNDER THE PERISHABLE AGRICULTURAL COMMODITIES ACT The defendant, CIT Business Credit Corp. (“CIT”) moves to dismiss certain claims (the “PACA Claims”) asserted in the Plaintiffs Amended .Complaint, filed November 12, 1993 (the “Amended Complaint”). The *569 PACA Claims seek, in substance, to invalidate the pre-petition securi...
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MEMORANDUM & ORDER The matter before the court is a Motion for Partial Summary Judgment filed on February 28, 1994, by the defendant, United States of America, acting through the Department of Treasury and the Internal Revenue Service arising from the Complaint filed by the plaintiffs, Richard D. Olson and Jean Olson, on August 30, 1993, to determine the dischargeability of certain pre-pe...
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DECISION AND ORDER GRANTING MOTION OF MENDELSON ELECTRONICS COMPANY, INC., TO MODIFY AUTOMATIC STAY OF 11 U.S.C. § 362(a) Before the court is a “Motion for Relief from Automatic Stay” (Doc. # 10) filed by Mendelson Electronics Company, Inc. 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...
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166 B.R. 279 (1994) In re CARPENTERTOWN COAL & COKE COMPANY, INC., Debtor. UNITED STATES FUEL COMPANY, Movant, v. CARPENTERTOWN COAL & COKE COMPANY, INC., Respondent. Bankruptcy No. 89-21629. Motion No. C & L-1. United States Bankruptcy Court, W.D. Pennsylvania. April 26, 1994. Joan G. Dorgan, Pittsburgh, PA, for debtor/respondent Carpentertown Coal & Coke Co., Inc. Vincent J. Res...
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MEMORANDUM DECISION At issue is whether a purchase money secured creditor may compel a debtor to file his statement of intention pursuant to 11 U.S.C. § 521(2)(A). A secondary issue is whether a purchase money secured creditor may compel a debtor to amend a statement of intention already filed in accordance with this section. This court has jurisdiction to hear this matter pursuant t...
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OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT I. FACTUAL AND PROCEDURAL BACKGROUND The following facts are not disputed. Plaintiff Arline Miller and Defendant Lionel Walpin were married on June 30, 1957 and thereafter lived together as husband and wife until January, 1991. Plaintiff Miller filed for divorce. The California Superior Court entered its order dissolving the marital statu...
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ORDER On January 27,1992, John Lyman (debtor) filed a chapter 7 bankruptcy petition. A matrix listing four creditors was filed the same day. On February 11, 1992, debtor filed his schedules and a signed verification of matrix. 1 All of the named plaintiffs in the instant adversary proceeding were listed as unsecured creditors on debtor’s schedules, but none of them were listed on the matrix...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON COUNT I OF THE COMPLAINT This matter came before the Court for hearing March 17, 1994, on the motion of Plaintiff, Aetna Casualty & Surety Company (“Aetna”), for partial summary judgment on Count I of its complaint. Aetna contends that under the doctrine of collateral estoppel the debt owed by the Debtor, Louis Lentine (the “De...
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166 B.R. 438 (1994) In re Patrick & Lilia ENDY, Debtors. Bankruptcy No. BK-S-90-24316-RCJ. United States Bankruptcy Court, D. Nevada. April 28, 1994. Joshua Landish, Las Vegas, NV, for petitioner. R. Palmer Cundick, Las Vegas, NV, U.S. Trustee. OPINION ROBERT CLIVE JONES, Chief Judge. The instant case was converted from Chapter 11[1] to one under Chapter 7 of the Bankruptcy Code. At a hearin...
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ORDER OF REMAND This matter came on for hearing before this Court December 9, 1993, on Barnett Bank’s Motion to Remand this action to the Circuit Court of the Fifth Judicial Circuit in and for Marion County, Florida (the “Circuit Court”). Having considered the motion, the argument of counsel and for the reasons set forth below, the Court remands this action to the Circuit Court. On April 30, 19...
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ORDER DENYING DEBTORS’ MOTION TO AVOID LIEN OF CENTURY FINANCE In the above captioned case the debtors sought to avoid the security interest of Century Finance on a 1980 Ford pickup truck, attached snow plow, and sixteen-foot trailer. Century Finance objected. Debtors appear by Donald B. Clark of Wichita, Kansas. Century Finance appears by Christopher W. O’Brien of Robbins, Tinker, Sm...
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ORDER DENYING MOTION TO QUASH SUBPOENA This matter comes before the Court on the motion of Richard N. Gowdy, Ph.D. (Dr. Gowdy) to Quash Subpoena. The Court held a hearing on shortened notice on March 30, 1994. The Court heard statements of counsel and legal arguments at that time. Having duly considered the positions of the parties, the Court makes the following Findings of Fact and Conclusions...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS This matter came before the Court for hearing on February 15, 1994, on the Defendants’, William R. Hancock, Jr. and Kimberly Hancock (the “Defendants”), Amended Motion to Dismiss. Having considered the motion, the arguments of counsel and for the reasons set forth below, the Court grants the Defendants’ motion. PlaintiffDebtor, Ven-Mar of Indian ...
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ORDER SUSTAINING DEBTORS’ AMENDED OBJECTION TO CLAIM OF IRS This matter came on for an evidentiary hearing before the Court January 3, 1994, on the Debtors’ Amended Objection to Claim of the Internal Revenue Service (the “IRS”). Having considered the objection, the response thereto, the demeanor and candor of the witnesses and for the reasons set forth below, the Court sustains the Debtors’ obje...
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ORDER GRANTING “MOTION FOR SUMMARY JUDGMENT” (AS TO PLAINTIFFS FUNDA ERFUN AND FERHAN OZEY) Plaintiffs Funda Ozey (“Funda”), Erfun Ozey (“Erfun”), Ferhan Salih Ozey (“Fer-han”) and Cüneyt Serdar (“Serdar”) move for summary judgment against defendant Erhan Ozey (“Erhan”). Upon consideration of the record herein, this Court determines, concludes and orders as follows. Erhan was married to Fun...
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DECISION ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT In this adversary proceeding, plaintiff/debtor pursues an adjudication resolving competing interests in a fund in its hands, the source of which was a sale of real property assets located in Missouri. Now before the court is plaintiff’s motion for partial summary judgment. Defendant Security Pacific Business Credit, Inc. (“SPBC”) filed...
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ORDER ON OBJECTION TO FEES FOR PERIOD SEPTEMBER 1, 1993 — DECEMBER 31, 1993 In connection with the quarterly review by the court of fee applications by professionals in these consolidated Chapter 11 cases, the official Injury Claimants Committee (“ICC”) filed a limited objection to the fee applications of Marcus Montgomery Wolfson & Bur-ten (“MMWB”) and Pacholder Associates, Inc. (“Pachol...
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DECISION ON MOTION BY AMERICANA HOTELS AND REALTY CORP. FOR SUPERPRIORITY ADMINISTRATIVE EXPENSE CLAIM PURSUANT TO 11 U.S.C. § 507(b) This matter is before the Court pursuant to a motion made by the secured creditor Americana Hotels & Realty Corp. (“Americana”), for an order: (i) fixing the value of its secured lien on property owned by J.F.K. Acquisition Group (the “Debtor”) pursuant...
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MEMORANDUM OPINION AND ORDER This adversary proceeding came on for hearing on March 22, 1994 on debtor’s Motion to Reconsider this Court’s Order of March 4, 1994 (Ct.Doc.No. 36) to the extent the Order directed the plaintiff to take a voluntary nonsuit in its action filed in the District Court of Massachusetts if it intended to proceed in this Court. As a matter of procedural history, this ...
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ORDER ON CONTEMPT AND F.R.B.P. 9011 This adversary proceeding deals with a controversy between the debtor plaintiffs and defendants who are lessors of premises occupied by plaintiff Transicoil. The present decision deals with a question of contempt of court on the part of defendants and counsel for defendants which the court has raised. This court has jurisdiction of this matter pursuant to 28 U.S...
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MEMORANDUM OPINION ON IMPACT OF PENSION EXEMPTION CLAIMS ON CHAPTER 13 PLAN, AMENDED UPON RECONSIDERATION 1. Issues Presented. The opposition to Debtor’s Chapter 13 plan has raised several issues that will be resolved at this time based upon material facts that are not in dispute. First, is Debtor eligible to be a debtor under Chapter 13? Second, has Debtor overfunded his oth...
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ORDER On April 30,1993, Jones Truck Lines, Inc., (the Debtor), filed a complaint to recover alleged preferential transfers from Central States, Southeast and Southwest Areas Pension Fund; Central States, Southeast and Southwest Areas Health and Welfare Fund (collectively Central States). The complaint also contains a count objecting to the secured status of the claims of Central State...
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MEMORANDUM OPINION This matter is before the Court to consider whether to confirm the Debtor’s Chapter 11 Plan of Reorganization. The Court will deny confirmation for the reasons stated below, any one of which, in the opinion of the Court, would be sufficient in and of itself. FACTS The Debtor is a general partnership that owns and operates an office building located at ...
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MEMORANDUM OPINION Preliminary hearing on Antoinette Atkins’ motion for relief from stay was held in Richmond, Virginia, on March 14, 1994. At this hearing the court also considered the motion to intervene of Travelers Insurance Company. On the relief from stay motion, the sole issue is whether the court will annul the automatic stay so as to validate a state court default judgment obtained b...
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MEMORANDUM OF DECISION The central issue in the trial of this complaint is whether a debt for uncompensated injuries resulting from the failure of debtor-defendant to maintain workers’ compensation insurance may be excepted from his discharge. *737 The uncontested facts are that defendant was engaged in the business of gathering manure from cattle yards in the Oklahoma panhandle and sprea...
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MEMORANDUM OP DECISION The present adversary proceeding is brought by John Krommenhoek (“trustee”), the chapter 7 trustee for Treasure Valley Opportunities, Inc. (“debtor”), to avoid an alleged fraudulent transfer to Natural Resources Recovery, Inc. (“NRR”). On January 10,1994, this Court denied NRR’s motion for summary judgment. NRR filed a motion to reconsider and alternative motion in ...
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ORDER ON APPLICATION FOR PAYMENT OF ADMINISTRATIVE CLAIMS This matter came before this Court on Application for Payment of Administrative Claims filed by Union Pacific Railroad Company and Missouri Pacific Railroad Company (collectively, the “Railroads”) asking this *666Court to approve payment of certain post-petition lease rental and freight charges to-talling $35,980.00 as administrative expe...
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OPINION These are consolidated appeals. The first order on appeal granted the debtor’s motion to dismiss the creditor’s adversary complaint, which asserted a claim of nondischargeability of his debt for fraud under § 523(a)(2)(A) *907 and objected to the debtor’s discharge under § 727(a). The second order on appeal awarded attorney’s fees to the debtor under § 523(d) as a...
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MEMORANDUM OF OPINION This adversary proceeding arises in the context of three administratively consolidated Chapter 11 cases.; it presents a question of the ownership of money. The debtors were, among other things, middlemen in the 900 number telephone business. They arranged for telephone programs created by “information providers” to be transmitted to local telephone companies, whose c...
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DECISION AND ORDER ON FEE REQUESTS In each of these Chapter 13 1 cases, Debt- or’s counsel has, in conjunction with a substantive motion or application, requested attorney’s fees after confirmation of a plan which provides for payment of fees, and within 120 days of a prior application. The requests are: CASE MOTION FEES AND COSTS Orris Temporary Reduction of Pla...
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MEMORANDUM OF DECISION ON DEBTOR’S COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT The above captioned adversary proceeding came on for trial before the Court on March 22, 1994. The plaintiff/debtor appeared by Garry L. Howard of Slape & Howard, Wichita, Kansas. Defendants, United States Department of Education and Wichita State University (‘"WSU”) appeared by Connie DeArmond, Assista...
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MEMORANDUM OPINION Before the court is Debtors’ Motion to Avoid the Judicial Lien held by Respondent, Frye Construction, Inc. The only issue is the fair market value of Debtors’ residence, the property to which the hen attached pre-petition. Debtor presented the testimony of James E. Lignelli, a real estate appraiser who holds an MAI designation. Using the comparable sales approach, Mr. Lignelli t...
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*380 ORDER ALLOWING FEES AFTER NOTICE to all creditors, the Court has carefully reviewed the fee applications and has considered the criteria specified in 11 U.S.C. §§ 326 and 330 and the requirements of F.R.B.P. 2016, and makes the following findings: The services rendered by Daniel Bakst, both as trustee and as attorney for trustee, were reasonable and necessary in the...
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MEMORANDUM OPINION This matter is before the court on cross-motions for summary judgment. The chapter 7 trustee claims that the Mellon Bank (hereinafter “Mellon”) made an unauthorized postpetition transfer under 11 U.S.C. § 549 of estate property consisting of funds in a bank account. Mellon answered that prepet-ition the debtors (hereinafter “Martins”) had executed an absolute irrevocabl...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the objections to confirmation of the debtors’ Amended Chapter 12 Plan filed by *955Montezuma Credit Union (“Montezuma”), Farm Credit Bank (“FCB”) and the Chapter 12 Trustee. Also before the Court are FCB’s motion to dismiss the debtors’ bankruptcy case, the motion by FCB for relief from stay as to the Litson property, t...
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166 B.R. 677 (1994) In re THOMAS COMPANIES, INC., a Delaware Corporation, d/b/a S. Thomas Companies, Inc., f/k/a Thomas Plumbing & Heating Company, Debtor. THOMAS COMPANIES, INC., a Delaware Corporation, Plaintiff, v. UNITED FIRE & CASUALTY COMPANY, Defendant. Bankruptcy No. 91-81531. Adv. No. 92-8037. United States Bankruptcy Court, C.D. Illinois. May 4, 1994. Barry M. Barash, Richard A....
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Before the court is the trustee’s motion for determination that the debtor’s obligation for post-petition payment of pre-petition attorney’s fees be discharged and for disgorgement to the debtor of unreasonable sums paid. Debtor’s counsel opposes the motion. FACTS Ruthie M. Dennis (“Dennis”) signed her chapter 7 petition on June 4, 1993 and it was filed on July 2, 1993. Her schedules ...
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MEMORANDUM J. Background Before the court in this Adversary Proceeding are cross motions for summary judgment relative to the Complaint of Robin Si-newitz (“Plaintiff’) against Gary Sinewitz (the “Debtor” or “Defendant”), her former husband. The issues arise out of a contempt action (Docket No. 89-1580) pending in the Commonwealth of Massachusetts Probate and Family Court, Middlesex Div...
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MEMORANDUM DECISION DENYING MOTION TO REOPEN NO ASSET CHAPTER 7 CASE The Cadle Company (“Cadle”) seeks an order pursuant to § 350(b) of the Bankruptcy Code (“Code”) reopening this no asset chapter 7 case. Cadle’s goal is to file an adversary proceeding pursuant to § 523(a)(2)(B) of the Code and Bankruptcy Rule 4007 to determine the dischargeability of its claim. Alternatively, it seeks le...
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MEMORANDUM OPINION This matter comes before the Court on Plaintiff’s Amended Complaint alleging breach of fiduciary duty, actual and constructive fraud, tortious interference with valid business relations and waste of corporate assets, and Defendant’s counterclaim for the recovery of wages and personal property. The Court has core jurisdiction over the Amended Complaint and non-core j...
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MEMORANDUM OPINION On December 6, 1993, the Exchange National Bank of Jefferson City (the Bank) filed this adversary proceeding against the Debt- or, A.J. Rackers, Inc., and its statutory trustees to “Determine the Validity of Security Interest.” A trial was set and held on March 30,1994 at which time the Court heard statements of counsel, evidence from witnesses, *170 and legal arguments. ...
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MEMORANDUM OPINION Plaintiffs in this adversary proceeding claim that debtor/defendants (“debtors”) converted and embezzled cattle and proceeds belonging to plaintiffs, and obtained such cattle from plaintiffs by false pretenses and misrepresentations. Therefore, plaintiffs ask that debtors’ obligation to them be excepted from discharge in this Chapter 7 bankruptcy case. This is a cor...
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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 heard March 9, 1994. This is an adversary proceeding to determine the dischargeability of a debt under § 523(a)(6) only. This is a core proceeding over which this Court has jurisdiction under 28 U.S.C. § 157(b). A. Scott Thompson (“...
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MEMORANDUM AND ORDER ON DEFENDANT ELAINE ANDERSEN’S MOTION TO ORDER TRUSTEE TO ABANDON PROPERTY AND TO LIFT STAY AND MOTION FOR SUMMARY JUDGMENT The chapter 7 trustee commenced this adversary proceeding on August 28, 1992, to recover an allegedly fraudulent transfer of an interest in a residence by the debtor to his wife, Elaine Andersen (“Andersen”), on December 8, 1986. Andersen seeks s...
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DECISION ON DISCHARGEABILITY OF DEBT This is an adversary proceeding brought by Michael McGrath, a judgment creditor in the amount of $44,966.36, seeking a determination by this Court that the judgment debt be deemed non-dischargeable pursuant to Section 523(a)(2)(A) of the Bankruptcy Code. The Debtors are the Plaintiffs mother and father. Based upon the testimony and evidence presented, the Pla...
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166 B.R. 694 (1994) In re David Leroy Kern REIFF, Debtor. Leesa Ann REIFF, Plaintiff, v. David Leroy Kern REIFF, Defendant. Bankruptcy No. 93-43051. Adv. No. 94-4002. United States Bankruptcy Court, W.D. Missouri, Kansas City Division. April 7, 1994. Theodore D. Barnes, Independence, MO, for plaintiff. Larry G. Chipman, Independence, MO, for debtor/defendant. *695 MEMORANDUM OPINION ARTHUR B. ...
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MEMORANDUM OPINION This adversary proceeding was filed to determine the dischargeability of debtor’s obligation arising out of an automobile accident which occurred prior to the bankruptcy filing. Plaintiffs obtained a judgment against defendanl/debtor (“debtor”) subsequent to the bankruptcy filing. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). The Court has jurisdic...
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ORDER At Butte in said District this 4th day of March, 1994. In this Chapter 11 case, the Debtor-In-Possession (DIP) has filed an objection to the proof of secured claim filed by First Interstate Bank of Commerce (Bank) in the sum of $69,578.17, plus post-petition interest, costs and attorneys’ fees. The latter items are not quantified in the Proof of Claim. The objection filed pursu...
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MEMORANDUM OPINION This matter comes before the Court on Motion To Strike filed by J. Coleman Tid-well, Chapter 7 trustee in this case. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(F). At issue in this matter is the construction of 11 U.S.C. § 546 and the application of its statute of limitation provisions to debtors in possession and trustees. Upon consideration of the leg...
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MEMORANDUM OPINION Debtor Frank A. Calderone, doing business as Frank A. Calderone Construction (hereinafter “debtor”), has brought this adversary action against Frank Mancino and Marian Mancino (hereinafter “defendants”) for breach of contract. He seeks to recover a final payment of $20,000.00 for constructing a residential dwelling for defendants plus an additional sum of $5,324.61 ...
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MEMORANDUM Hearing was held on March 18, 1994, on the Motion for Summary Judgment filed by Midwest Carriers Corporation. Appearing on behalf of Midwest Carriers Corporation was Robert Gallagher of Northampton, Massachusetts. Aso appearing on behalf of Midwest Carriers Corporation was Thomas Sala-dino of Fitzgerald, Schorr, Barmettler & Brennan of Omaha, Nebraska. Appearing on behalf o...
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OPINION I. INTRODUCTION The debtor, an ambulance service supplying transportation to Medicare patients seeks injunctive relief in this proceeding to prevent the Department of Health and Human Services (“HHS”) from suspending payment of its Medicare reimbursements because of alleged overpayments. The facts require harmonization of two independent federal statutes. Because restructurin...
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MEMORANDUM OPINION THIS ADVERSARY PROCEEDING is before the Court on Complaint seeking a determination of the dischargeability of certain federal income tax obligations. The answer alleges that 11 U.S.C. § 523(a)(1)(C) excepts the liabilities from discharge. The defendant has moved for summary judgment. The plaintiff responded to the Motion and the Court held a hearing on March 9, 1994. The Cour...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT Before the Court 1 are dispositive motions by both parties; Plaintiff has moved for summary judgment and Debtor has moved for dismissal of the Adversary Proceeding. *332 Plaintiff commenced the within Adversary-Proceeding by the filing of a complaint with the Court on November 14, 1991. Pursuant to the Advers...
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OPINION AND ORDER RE INTERIM PROCEDURES AND DENYING BREAK-UP FEES This matter is before the Court pursuant to Debtor’s Motion for Approval of the Interim Procedures Agreement and the objection thereto. An evidentiary hearing was required and held on April 12, 1994, after which the matter was taken under advisement. After due consideration of the pleadings, the evidence presented, the argu...
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*902 OPINION This appeal arises from a bankruptcy court’s order denying the Chapter 71 trustee’s motion for turnover of the debtor’s interest in an employer’s profit sharing and pension plan. The Chapter 7 trustee appeals. We AFFIRM. I.FACTS The debtors, Wilker and Janice Conner, (“Conners”), filed their Chapter 7 petition on May 2, 1991. The Conners claimed Janice Conner’s interest in her pensi...
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OPINION The Debtor’s Chapter 11 1 plan was confirmed by the bankruptcy court which provided that all real property taxes would become a lien upon the real property and no administrative claim against the Debtor. The secured creditor appealed the order confirming the plan. We AFFIRM. I. FACTS On August 25, 1989, the appellee, Carolina Triangle Limited Partnership (...
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OPINION AND ORDER ON DEBTORS’ REMAINING OBJECTION TO THE CLAIM OF THE IRS This matter is before the Court on the objection of debtors Jon and Patricia Ford to the proof of claim filed by The United States of America, Internal Revenue Service (“IRS”). Specifically, the debtors maintain that IRS has not applied income tax refunds *174due debtors for 1986 and 1987 to reduce their tax liabilities. T...
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OPINION AND ORDER ON CONFIRMATION OF PLAN This matter is before the Court upon the debtor’s request for confirmation of her chapter 13 plan and the Court’s duty to find that all requirements for confirmation have been met. 11 U.S.C. § 1325(a). The issue specifically before the Court at this time is whether the debtor’s plan, as proposed, meets the test imposed by § 1325(a)(4). An...
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OPINION AND ORDER ON OBJECTION TO CLAIM # 155A (RUSSELL SIMMONS) Larry E. Staats, the duly-appointed trustee of the bankruptcy estate of debtor, Correct Manufacturing Corporation, (“Correct”) has objected to the allowance of claim # 155A, filed on behalf of Russell Simmons. Simmons opposed the objection in writing, *459 but did not appear at the hearing held Oc...
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OPINION AND ORDER ON MOTION TO REDEEM Before the Court is a motion filed by Scott and Judy Stoddard (“Debtors”) seeking to redeem certain property subject to a security interest in favor of Star Bank pursuant to 11 U.S.C. § 722. Star Bank opposes the motion. The parties have stipulated the operative facts and the matter is before the Court on a question of law. The Court has jurisdiction in...
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ORDER SUSTAINING GUARDIAN LIFE INSURANCE COMPANY’S OBJECTION TO EXEMPTION THIS CAUSE came before the Court on April 5, 1994 for hearing on the objection to exemption filed by creditor, The Guardian Life Insurance Company of America (“Guardian”). The debtor, Fred Paul Solomon (“Solomon”), claims exemption for a “structured settlement annuity received as settlement of a 1984 lawsuit....” The ...
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MEMORANDUM OPINION This matter is before the Court on cross Motions for Summary Judgment. The issue to be resolved herein is whether criminal restitution payments are avoidable as preferential transfers pursuant to 11 U.S.C. § 547(b). This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b); it is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). The parties have entered ...
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ORDER DETERMINING DEBTOR’S COMPLIANCE WITH 11 U.S.C. § 365(b)(1) This cause was heard on December 16, 1993, to determine Prime Motor Inns, Inc.’s (“Prime”) compliance with this Court’s order of August 17, 1992 directing Prime to make certain repairs to a hotel property. The Court having considered the evidence, and having heard argument of counsel, makes the following findings of fact...
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MEMORANDUM OPINION AND ORDER GRANTING IN PART MOTION OF AECTRA REFINING & MARKETING, INC. FOR PAYMENT OF ADMINISTRATIVE CLAIM In this contested proceeding, AECTRA REFINING & MARKETING, INC. (“Aec-tra”) originally sought an order requiring immediate payment of an administrative expense claim in the amount of $101,390.63. This claim is for jet fuel sold during 1993 in the ord...
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*666 MEMORANDUM OPINION This matter comes before the Court on BancFlorida’s motion for summary judgment on Count III of its complaint against Frederick De Pasquale (the “Debtor”) pursuant to Federal Rule of Civil Procedure 56, incorporated by reference in Federal Rule of Bankruptcy Procedure 7056. For the reasons set forth herein, the Court having considered the pleadings, ex...
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MEMORANDUM DECISION AND ORDER GRANTING TRUSTEE’S OBJECTION TO DEBTORS’ CLAIMS OF EXEMPTIONS THIS CAUSE came before the Court on March 1,1994 at 9:30 a.m. upon the Trustee’s *767 Objection to Debtors’ Claims of Exemptions and Memorandum of Law in support thereof (“Trustee’s Objection”), and the Debtors’ Memorandum in Opposition to Trustee’s Objections to Claimed Exemptions (“Debtors’ Memoran...
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ORDER OF SHANDA1 This case came before the court on March 1, 1994 upon Susan Charney’s Motion for Award of Sanctions against her sister, Judith Herskowitz. At 3:30 p.m. on February 28, 1994, the day before the hearing, Judith Herskowitz filed a Motion for a Continuance setting forth numerous inane reasons why the matter should not be heard. They included the fact that she arbitrarily decided to b...
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ORDER GRANTING MOTION FOR CONTEMPT THIS MATTER having come before the Court on October 14, 1993 for final hearing on the Motion for Contempt brought by *987Plaintiff, SLK ASSOCIATES, INC., d/b/a BROMLEY’S, against Defendants, MIAMI MONEY STORE, INC., GEORGE KOVACS and JAY WEINBERG, seeking an Order of contempt against Defendants for wilful and intentional violation of this Court’s Temporary Rest...
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OPINION AND ORDER ON OBJECTION TO CONFIRMATION OF CHAPTER 11 PLAN Before the Court is an objection to the requested confirmation of a Substitute Plan of Reorganization, Replacement Modification and Second Modification to the Substitute Plan (collectively “Plan”), as collected and restated on April 18, 1994, proposed jointly by chapter 11 debtor Rivers End Apartments, Ltd. (“Rivers End...
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OPINION On consideration before the court is a motion for summary judgment filed by the plaintiff, A.G. Edwards and Sons, Inc.; response to said motion having been filed by the debtor, James H. Sams; and the court having considered same, hereby finds as follows, to-wit: I. This court has jurisdiction of the subject matter of and the parties to this adversary proceeding pursuant to 28 U.S.C. § 1...
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MEMORANDUM DECISION The Trustee, Robert Furr (the “Trustee”), and two creditors, Ellen and Laura Godley (the “Creditors”), filed a seven count complaint seeking denial of the discharge of Slade Godley (the “Debtor”), pursuant to 11 U.S.C. §§ 727(a)(2), (3), (4), and (5), avoidance of an alleged fraudulent transfer, and determination of non-dischargeability as to debts owed to the Creditors, p...
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MEMORANDUM OPINION The former Chapter 7 trustee in this case, Michael A. Grassmueck, Inc. has filed proof of claim # 7 in this case in the amount of $2,031.26 as an administrative expense claim. This matter comes before the court upon the debtor’s objection to that claim. BACKGROUND The facts are, essentially, undisputed. The debtor commenced this case by filing a voluntary Chapter 7 petiti...
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DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS COMPLAINT FOR LACK OF PERSONAL JURISDICTION [AND FOR LACK OF PROPER SERVICE] This court addresses the motion by the defendant, Ed. Zueblin, AG (“Zueblin”), to dismiss the plaintiff’s complaint filed in the above captioned adversary proceeding for lack of personal jurisdiction and for lack of proper service. For ...
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OPINION On consideration before the court is the motion for summary judgment filed by the plaintiff, U.S.A./FmHA; response to said motion having been filed by the defendant, Indi- *79 Bel, Inc.; and the court having considered same, hereby finds as follows, to-wit: I. This court has jurisdiction of the subject matter of and the parties to this adversary proceeding pursuant to 28 U.S.C. ...
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OPINION On consideration before the court is the complaint filed by the plaintiffs, Freeland & Freeland, attorneys at law, against the defendants, Wendell Blount, Saul Fesman, Paul Bousquet, Queen City Home Health Care Company, American Mobility, Inc., and Mississippi Durable Medical Equipment, Inc.; answers and affirmative defenses having been filed on behalf of said defendants; a cross-claim ...
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DECISION RE MOTIONS FOR SUMMARY JUDGMENT This is a dispute between the debtor, 5028 Wisconsin Avenue Associates Limited Part *701 nership, and its mortgagee 1 concerning the entitlement to rents owed by the debtor’s tenant, Copy King, Inc. The disputed rents have been held by the tenant in an escrow account pending resolution of the dispute. The court holds tha...
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MEMORANDUM OPINION PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT The Court held a hearing on Plaintiffs Motion for Summary Judgment on March 23, 1994. The Court has considered pleadings of the parties, the competent summary judgment evidence, the argument of counsel, and the legal authorities cited to the Court by the parties. Based thereon, the Court enters this Memorandum Opinion as a sta...
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MEMORANDUM OPINION This decision is occasioned by objections to Farm Credit Bank’s motions for remand of the above-captioned removed adversary proceeding and for abstention. The debtors, LaVerne R. Stigge and Ver-lene J. Stigge, appear by their attorneys, Jan M. Hamilton and Leon B. Graves of Hamilton, Peterson, Tipton & Keeshan, Topeka, Kansas; plaintiff Farm Credit Bank of Wichita, Wichita, K...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT Before the Court are two motions for summary judgment, one filed by the debtor, DAVID STEVEN BERG (“Debtor”), and one by plaintiff, SARA BLAUSTEIN (“Plaintiff’). The issue at bar is whether a debt owed by Debtor to his former spouse, Plaintiff, is nondischargeable as being in the nature of support, maintenance or alimony. For th...
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MEMORANDUM OPINION ON TRUSTEE’S COMPLAINT TO AVOID PREFERENTIAL TRANSFERS In this adversary proceeding, the Chapter 11 Trustee seeks to avoid as preferential transfers payments made by The Julien Company (“debtor”) to the defendant Rollins Cotton Company (“Rollins”) in the amount of $22,028,569.52. Rollins answered and filed a third party complaint against Bankers Trust Company (“BTCo”) a...
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*513 MEMORANDUM OF DECISION AND ORDER RE: CONFIRMATION OF PLAN I. ISSUE The dispositive issue in this proceeding is whether a court may confirm a debtors’ joint Chapter 11 plan whose feasibility concededly relies upon the receipt of the debtors’ future wages for a period of at least seven years. The debtors, who are husband and wife, contend that “present law is totally permissive of ...
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OPINION This matter comes before the court on the motion by the debtor-in-possession, New Valley Corporation (“New Valley” or “Debtor”), for an order (i) declaring that payment of allowed claims in full renders such claims unimpaired, and (ii) that the Debtor has no obligation to pay postpetition interest on unimpaired claims. The Debtor asserts as statutory predicates for the relief ...
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MEMORANDUM OPINION I. INTRODUCTION This is the court’s decision on the parties’ motions and cross-motions for summary judgment. The plaintiff in this adversary proceeding, Karen Bezner, trustee for the debtor Midway Inc. (“debtor” or “Midway”), filed a complaint on June 30, 1992 against United Jersey Bank (“UJB”) and numerous other defendants seeking turnover of property of t...
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MEMORANDUM OPINION This matter is before the Court on Objection Of The United States Trustee To Debt- or’s Application For Order Authorizing The Retention Of Accountant. A hearing on the Trustee’s Objection was held on March 23, 1994. Based on the evidence presented at the hearing, and the arguments of counsel, the Court will sustain the objection of the United States Trustee. These f...
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MEMORANDUM DECISION DETERMINING NON-DISCHARGE-ABILITY OF DEBT The defendants, husband and wife, filed a voluntary joint petition under Chapter 7 on April 30, 1993. On July 21, 1993, the plaintiff, Navistar Financial Corporation (“Navis-tar”), filed this adversary proceeding against the Debtors, objecting to their discharge under Section 727 of the Bankruptcy Code, and seeking a determination of...
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ORDER It has come to the Court’s attention that the above adversary proceeding has been pending without any substantial activity of record having taken place since December 7, 1992. This proceeding was commenced by the chapter 7 Trustee Theo D. Mann (hereinafter “Trustee”) against Robert Hahn (hereinafter “Debtor”) as a Complaint Objecting *694 to Discharge. The matters i...
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*308 MEMORANDUM OPINION This matter comes before the Court on Motion For Relief From Stay filed by Gosh-en Realty, through its agent, Bristol Properties Corporation, (“Movant”), a creditor in this Chapter 11 case. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(G). Based on the evidence presented and arguments of counsel, the Court will grant the Motion for Relief fro...
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OPINION A INTRODUCTION Presently before this court are several matters arising in the Chapter 13 bankruptcy case of DENISE J. GELLETICH (“the Debtor”), including an adversary proceeding (“the Proceeding”) filed by the Debtor and her husband, RONALD L. GELLETICH (“the Husband,” and with the Debtor, “the Plaintiffs”) 1 against HOUSEHOLD REALTY CORP. (“Household”). In...
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MEMORANDUM OPINION AND ORDER DENYING TRUSTEE’S MOTION FOR TURNOVER OF PROPERTY AND GRANTING MOTION OF CITIZENS STATE BANK FOR RELIEF FROM AUTOMATIC STAY On this day came on for consideration the Trustee’s Motion for Turnover of Property, filed by D. Michael Boudloehe, Chapter 7 Trustee (the “Trustee”), and the Motion for Relief from the Stay of an Act Against Property, filed by Citize...
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OPINION AND ORDER The issue is whether Jose Jaime Folguera Belvis (Folguera) may collect for his services performed after the petition was filed from estate assets, even though Debtor did not procure his appointment as a professional person within the meaning of 11 U.SC. Section 327(a) and Rule 2014 of the Federal Rules of Bankruptcy Procedure. The uncontested facts show: 1. Delta Petroleum (PR) ...
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OPINION Before the Court is the Motion of ERM Partnership to Strike Ballot pursuant to 11 U.S.C. § 1126(e) and for Related Relief (the “Motion”). ERM Partnership (“ERM”) is a New Jersey general partnership and a secured creditor in the chapter 11 bankruptcy case of Holly Knoll Partnership 1 (“Debtor”). In the Motion, ERM asserts several reasons why the ballot of E.W. Real E...
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166 B.R. 928 (1994) In re ETHANOL PACIFIC, INC., Debtor. Bankruptcy No. 94-00114. United States Bankruptcy Court, D. Idaho. April 5, 1994. *929 D. Blair Clark, Ringert Clark, Chartered, Boise, ID, for debtor. Ron Kerl, Service, Gasser & Kerl, Pocatello, ID, for petitioning creditors. MEMORANDUM OF DECISION ALFRED C. HAGAN, Chief Judge. In response to the filing of an involuntary chapter 7 pe...
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MEMORANDUM OPINION Facts Leon Basham, the Debtor, filed for Chapter 13 relief under the Bankruptcy Code, 11 U.S.C. § 1301, et seq. (the Code), on January 14, 1993. The Debtor listed only six creditors in Schedules D — F. Two of the claims are scheduled as secured. The Debtor scheduled a debt in the amount of $23,500 to Green Tree Acceptance Corp. (Green Tree) for the purchase of a...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case involves a dispute between the Debtors and the Umted States Trustee concerning the appropriate calculation of trustee fees under 28 U.S.C. 586(e)(1). JURISDICTION TMs Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for the Ea...
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The debtors in this proceeding have moved under 11 U.S.C. § 522(f) to avoid certain judicial liens which impair the debtors’ homestead exemptions. At issue is the extent to which a junior unavoidable tax lien will impact upon this right of avoidance. William and Susan Koehler filed a joint petition for relief under Chapter 7 of the Bankruptcy Code on January 21, 1994. At that time, they he...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER came on for consideration upon the Motion for Summary Judgment filed by the Plaintiff/Debtor in the above captioned case. This Court has considered all arguments and evidence consistent with a ruling on a motion for summary judgment. See Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. ...
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ORDER DENYING MOTION TO DISMISS This matter is before the Court on the Defendant’s Motion to Dismiss the Plaintiffs Complaint for Revocation of Discharge filed on December 27, 1993 and the First Amended Complaint for Revocation of Discharge filed on January 7, 1993. For the reasons stated below, the Court will deny the Motion to Dismiss. FACTS The Defendants filed this Chapter 7 bankrup...
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*971 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This matter is before the Court on the Plaintiffs Complaint to Determine Dis-chargeability of Debt. The Plaintiff seeks to have his debt of $17,124.60 plus interest declared nondisehargeable under 11 U.S.C. § 523(a)(6) as a debt for willful and malicious injury by the Defendant. The Plaintiff filed a Motion for Summary Judgment on F...
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MEMORANDUM OF DECISION AND ORDER DENYING MOTION FOR NEW TRIAL The issue is whether a bankruptcy court may enlarge the time for a trustee 1 to as *238 sume or reject unexpired leases of nonresidential real property when the motion for enlargement of time is made within the stab: utorily prescribed 60 day period, but no order granting it is entered within that pe...
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*141 MEMORANDUM DECISION This matter comes before the Court on the Debtor’s Motion to Enforce the Automatic Stay of Proceedings by Rule to Show Cause and the United States Motion for Relief from the Automatic Stay. After reviewing the papers, the relevant case law, and taking into consideration the arguments of counsel, the Court grants the request of the United States for relief...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION TO TRANSFER TO COURT OF FEDERAL CLAIMS This adversary action was initiated by Debtor, Plum Run Service Corp. (“Debtor” or “Plum Run”) against the United States of America, Department of Navy (“Navy”). The matter before the Court is the Navy’s Motion to Transfer this adversary action, pursuant to 28 U.S.C. § 1631 to the United States Co...
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DECISION AND ORDER PRELIMINARY STATEMENT The contested matter before the Court 1 involves a dispute concerning a fee application between two parties to a cash collateral stipulation: counsel to the debtor, Harvis, Trien & Beck (“HTB”) and a creditor holding a secured claim, Federal Home Loan Mortgage Corporation (“FHLMC”). For the reasons set forth below, the Court ho...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease came before the Court upon the Motion to Dismiss filed by the United States of America Internal Revenue Service (“IRS”). On January 25, 1994, the Court held a hearing on the motion and upon the argument of counsel and post-hearing submissions, the Court enters these findings of fact and conclusions of law. Findings of Fact This case was filed o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came on for trial on complaint to except a debt from defendants’ discharge pursuant to 11 U.S.C. § 523(a)(2)(A) and § 523(a)(4). The Court held a trial on January 13, 1994, and upon the evidence presented the Court enters these findings of fact and conclusions of law: Findings of Fact Stipulated by Parties ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon debtors’ objection to claim 11 filed by the United States of America for its Internal Revenue Service (“IRS”). The Court held a hearing on March 16,1994, and upon a stipulation of facts, the Court enters findings of fact and conclusions of law: Stipulation of Findings of Fact 1 The pa...
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ORDER DETERMINING RECEIPTS AND RECEIVABLES TO BE PERSONALTY, AND NOT RENTS Heard on April 25, 1994, on the Debtor’s emergency motion for the use of cash collateral, or in the alternative, for a finding that *327the Debtor’s occupancy income is not rents covered by Rhode Island Hospital Trust Na: tional Bank’s (“the Bank”) security interest. At issue is whether said receipts are personalty, and t...
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DECISION AND ORDER Heard on January 12, 1994, on the Debt- or’s complaint against Jacob Portnoy, Esq., for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. At the conclusion of the hearing, we asked the parties to submit post-trial memoranda, and they complied with our request. Upon consideration of the entire record and the submissions of the parties, we find that t...
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ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEBTORS MOTION FOR SUMMARY JUDGMENT AND MOTION TO DISMISS This matter came before the Court on February 3, 1994, on the Plaintiffs, Mayfair Builders, Inc. (“Mayfair”), Motion for Partial Summary Judgment. On February 11,1994, the Debtor/Defendant, Gregory Scott Gordon (the “Debtor”), filed a Motion for Summary Judgment...
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MEMORANDUM OPINION This matter is before the Court on the plaintiffs Motion for Summary Judgment filed herein on March 2, 1994. The defendant has filed a Response. The issue to be decided herein is whether a judgment debt owed by the defendant to the plaintiff is excepted from discharge pursuant to 11 U.S.C. § 523(a)(6). In this regard, the Motion for Summary Judgment raises the issue of whet...
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DECISION AND ORDER Heard on the Debtor’s motion to adjudge the Rhode Island Department of Transportation, Division of Motor Vehicles, in contempt, and also for the imposition of sanctions for its intentional and/or willful violation of the automatic stay. The legal issue presented is whether the automatic stay provided by 11 U.S.C. § 362(a)(1) prevents the State of Rhode Island from enforcing...
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MEMORANDUM OF DECISION Plaintiff Carolyn Lorenee (“Lorenee”) moves for abstention and remand of the above-captioned adversary proceeding to the state court where it was filed. She also moves for sanctions against defendants pursuant to rule 9011 of the Federal Rules of Bankruptcy Procedure for improper removal. For the reasons stated below, Lorence’s motions are denied. BACKGROUND ...
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MEMORANDUM OF DECISION ON ORDER REQUIRING PAYMENT OF POST-PETITION TAXES On March 18, 1994, we issued an Order requiring the Debtor to pay all outstanding post-petition taxes on nonresidential leases within twenty-one days, failing which such leases would be deemed rejected. Said Order was made in response to the motions of several lessors seeking the payment of post-petition lease ob...
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MEMORANDUM OF OPINION This Chapter 7 case is now before the court on motions raising questions about the operation of the automatic stay. One of the debtors owned stock in a corporation. The corporation owned real estate, but it paid neither its real estate taxes nor its franchise taxes. Because of the failure to pay franchise taxes, the corporation was dissolved. Because of the failure t...
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DECISION ON MOTIONS FOR SUMMARY JUDGMENT DECISION In this adversary proceeding, the Plaintiff-Debtor, Rene Garcia (the “Debtor”), seeks to have this Court determine null and void, a second note and mortgage executed by him, and held by Miriam Valdes (‘Waldes”), on property previously owned by the Debtor located at 90-10 Elmhurst Avenue, Jackson Heights, New York. This matter comes before this C...
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DECISION This matter is before the court on debtors’ motion to avoid the security interest of Hicksville Bank on their 1976 Chevrolet pickup truck. The truck has been claimed as exempt pursuant to I.C. 34-2-28-l(a)(2). Debtors contend that the truck is a tool of Mr. Shipman’s trade, entitling them to avoid the bank’s nonpossessory, nonpurchase-mon-ey security interest pursuant to 11 U...
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DECISION ON FEE APPLICATION This matter comes before the Court on the fee application of D’Amato, Forchelli, Libert, Schwartz, Mineo, Lamino & Carlino (“DFL”) as special counsel to Castle Ventures, LTD. (the “Debtor”) seeking compensation and the reimbursement of expenses for work performed in connection with tax certiorari proceedings on behalf of the Debtor. Opposition to the fee applic...
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MEMORANDUM OF DECISION This case involves the claim of the Internal Revenue Service (hereinafter “IRS”) against Bruce G. Rossiter (hereinafter “Debtor”), regarding the alleged liability of the Debtor under Internal Revenue Code § 6672(a), as a “responsible person” who willfully failed to ensure that withholding taxes were paid over to the IRS. I. STATEMENT OF FACTS The claim of ...
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ORDER Before the court is a motion for summary judgment filed by defendant CCC Associates Co., Inc. (“CCC”). In the underlying complaint, World Bazaar Franchise Corporation a/k/a World Bazaar (“debtor”) seeks to avoid and recover a preferential transfer in the principal amount of $28,037.52. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). The court will deny def...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DENY DIS-CHARGEABILITY OF DEBT AND FOR JUDGMENT This core proceeding came on to be heard on the adversary complaint of Automotive Financial Services, Inc., (“Kimbrough Properties” “AFS” or “plaintiff’) seeking to have its debt declared nondischargeable and seeking a monetary judgment. The Court has jurisdiction by virtue of 28 U.S.C. § 157(b)(2...
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MEMORANDUM OF OPINION J. INTRODUCTION The issue before this Court, on motion by debtor in possession Davey Roofing, Inc. (“Debtor”), is whether alter ego claims against Donald Davey (“Debtor’s principal”) constitute property of the bankruptcy estate. In bankruptcy, property of the estate does not belong to any individual creditor. If under Ninth Circuit and California law, De...
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MEMORANDUM OF OPINION AND ORDER In this proceeding, the liquidating trustee Saul Eisen (Trustee) filed his Complaint To Recover Voidable Preference. Defendant Harold Freeman Company (Freeman) filed its Motion To Dismiss for failure to state a claim upon which relief could be granted. Upon a hearing of the motion, the following constitutes the Court’s findings of fact and conclusions of law: The ...
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ORDER GRANTING SUMMARY JUDGMENT This proceeding is before the Court on the trustee-plaintiffs motion for summary judgment. The trustee filed a complaint to try, pursuant to 11 U.S.C.A. § 549, to recover an alleged postpetition transfer of estate property to State Farm Life Insurance Company (State Farm). The debtor intervened, and State Farm filed an answer leaving the actual defense of this ac...
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MEMORANDUM OF OPINION AND ORDER In this Chapter 7 matter (Brian A. Bash, The Trustee) seeks the appointment of Eugene E. Curtain (Curtain) of the Herbert E. *852Kohn Realty Company to serve as a real estate broker for the purpose of selling certain property of the bankruptcy estate of Lawrence Goldsby (The Debtor). In support of his motion for authorization to employ Mr. Curtain, the Trustee sta...
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MEMORANDUM I. INTRODUCTION The matter before this Court is an objection of Fleet Bank of Massachusetts, as Successor to Federal Deposit Insurance Corporation, as Receiver of Heritage Bank for Savings (“Fleet” or the “Bank”), to the Chap *712 ter 13 plan (the “Plan”) filed by the debtors, Franeiseek Legowski and Anna Legowski (the “Debtors”). II. FACTS On November 22, 1991, the Debto...
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MEMORANDUM OPINION AND ORDER INTRODUCTION These two unrelated cases each concern the extent to which a security agreement, entered into when an automobile was purchased, also covers unearned premiums for credit life insurance and an extended service agreement. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 15...
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*649 MEMORANDUM OF DECISION ON CONFIRMATION A confirmation hearing was held in this case on March 14 and 15, 1994. The debtor presented its case in support of confirmation of its plan and the Kansas Public Employees’ Retirement System (KPERS) presented its case in opposition. The debtor is represented by Daniel Flanigan and David Ferguson of McDowell, Rice & Smith, Kansas City, M...
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Opinion Introduction Old Electralloy Corporation f/k/a and f/d/b/a Electralloy Corporation (“Debtor”) operated as a specialty steel manufacturer with plants located in Oil City, Pennsylvania, Kokomo, Indiana and Frazier, Pennsylvania. The United Steelworkers of America (“USWA”) is the collective bargaining representative of the hourly employees at the Debtor’s Oil City locati...
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ORDER LIFTING THE AUTOMATIC STAY AND DISMISSING DEBTOR’S PETITION WITH PREJUDICE Introduction The debtor has filed three bankruptcy cases since 1985 and two this year. The first proceeding was filed under chapter 7 in 1985, case number 85-04515-G and remains pending before this Court. The debtor’s chapter 13 case was filed on June 14, 1993. On September 1, 1993, a hearing was heard before...
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OPINION DENYING ENTRY OF UAW’S 1113(F) ORDER This matter is before the Court upon remand from the Honorable Anna Diggs Taylor of the Eastern District of Michigan, directing this Court to rule on the merits of the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and UAW Local 2194 (collectively UAW’s Motion [for] Entry of Order Under § 1113(f)...
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MEMORANDUM DECISION DENYING MOTION TO DISMISS CLAIMS BASED ON COMPENSATORY CIVIL CONTEMPT The Debtor, Keene Corporation (“Keene”), seeks an order of civil contempt and an award of damages against Levy Phillips & Konigsberg (“LP & K”), a law firm that represents numerous asbestos injury claimants, and two of its partners, Stanley J. Levy and Moishe Maimon, on account ...
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MEMORANDUM OPINION Lloyd Y. Cooper, III, and Tamara J. Cooper appear by their attorney, James H. Thompson, Jr., Kansas City, Missouri. Nebraska Student Loan Program, Inc. (“NSLP”), appears by its attorney, Thomas L. Griswold of Payne & Jones, Chartered, Overland Park, Kansas. The debtors filed for relief under Chapter 13 on November 24, 1992. A Chapter 13 plan was confirmed on Ma...
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ORDER At Saint Louis, in this District, this 26th day of May, 1994. The matter before the Court is the “Motion to Confirm or, in the alternative, to Compel Abandonment” (“Motion”), filed on behalf of Rio Grande Properties II, L.P., a Delaware Limited Partnership (“Rio Grande”). These determinations and this Order are based on a consideration of the record as a whole, including th...
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OPINION Before: SULLIVAN 1 , RUSSELL and OLLASON, Bankruptcy JJ. The debtors sued First National Bank (“FNB”) alleging that FNB discriminated against them because the debtors are black. The debtors sought damages for violation of their civil rights. The bankruptcy court dismissed the complaint with prejudice based on res judicata principles. The debtors appe...
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*144 MEMORANDUM OF OPINION ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT Lyndel R. Roberts seeks to have her claim against Wendy Michelle Spencer (Debtor) declared nondischargeable pursuant to § 523(a)(9) of the Bankruptcy Code 2 asserting that the claim resulted from Debtor operating her motor vehicle while under the influence of alcohol or drugs. The court finds that the Debtor’s li...
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OPINION The Unsecured Creditor’s Committee (the Committee) filed an objection to NSB Film Corporation’s (the Debtor) motion to use cash collateral pursuant to a stipulation entered into with certain secured creditors. The bankruptcy court entered a conditional order approving the Debtor’s motion. The Committee appeals. We DISMISS. STATEMENT OF FACTS On September 24, 1992, an...
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OPINION Alfred and Ruth Nadel, creditors with a judgment hen against the debtor’s home, filed an objection to the debtor’s claim of homestead exemption. The bankruptcy court determined that the debtor was entitled to a homestead exemption in the amount available when the Nadéis’ lien attached to the property. The Nadéis appeal. We AFFIRM in part and VACATE in part the bankruptcy court’s d...
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OPINION The debtor appeals a money judgment and judgment of nondischargeability for $22,567 in credit card debt. The court determined the debt to be nondischargeable after considering the factors enumerated in the BAP case In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988). Debtor contends that Dougherty misconstrues 11 U.S.C. § 523(a)(2)(A) 1 basi...
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MEMORANDUM OPINION This is the court’s resolution of an order to show cause why sanctions should not be imposed on Brian Quentzel, Esq. under Federal Rule of Bankruptcy Procedure 9011 (“Rule 9011”) for misrepresentations and omissions of fact in a complaint, certification, and brief in this adversary proceeding. This matter arises from the petition of Charles and Mary Kouterick filed ...
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ORDER The matter being considered here is the Trustee’s oral request to correct a clerical mistake or error arising from omission. This determination is based upon a consideration of the record as a whole. The Debtor has orally opposed the Trustee’s motion. A summary of the documents that are the basis of this proceeding is set out below. [[Image here]] *900[[Image here]] Rule 60, Federal Rules ...
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MEMORANDUM OF DECISION AND ORDER DENYING CONFIRMATION OF PROPOSED PLAN OF REORGANIZATION The issue for decision is whether the partners of the debtor-in-possession may purchase the equity in a proposed reorganized debtor when a class of unsecured claims has rejected the plan, opposes confirmation and is not receiving payment equal to the full amount of its claim? 1 In other...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion For Relief From the Automatic Stay filed by State Street Bank and Trust Company (“Bank”) on February 11, 1994. Hearings were held on March 14, 1994, and April 7, 1994, at which time the Court took the matter under advisement. Fernando M. Egea (“Debtor”) appeared in person and by and through his attorney, Wi...
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DECISION AND ORDER ON MOTION FOR RELIEF FROM AUTOMATIC STAY DECISION AND ORDER This matter came on for trial on January 6, 1994, on the motion of the Federal Deposit Insurance Corporation (“FDIC”) for relief from the automatic stay of 11 U.S.C. § 362. The property which was the subject of this motion is approximately 10 acres of unimproved waterfront land on Long Island. 11 U.S.C. § 362 requir...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the Motion to Dismiss, or in the Alternative, for Relief from Stay filed by Alan Milton (“Milton”). Milton seeks dismissal of this Chapter 11 case for cause pursuant to 11 U.S.C. § 1112(b) and for the grounds set forth in 11 U.S.C. § 305 with respect to abstention. Alternatively, Milton seeks relief from stay for cause pursuan...
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DECISION AND ORDER ON MOTION OBJECTING TO CREDITOR’S CLAIM PRELIMINARY STATEMENT This matter comes before the Court1 upon a motion (“Motion”) by the chapter 7 Trustee (“Trustee”), who seeks to expunge the unsecured claim filed by creditor Norman Beer (“Creditor”). For the reasons set forth below, the Court holds that the Motion objecting to the Creditor’s claim is GRANTED and the Creditor’s claim...
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MEMORANDUM OPINION GRANTING MOTIONS FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT While the debtor’s Chapter 11 bankruptcy case was pending in this Court, the nondebt- or plaintiffs filed the instant “Complaint and Prayer for Jury Trial” in the state court against the nondebtor defendants (the debt- or’s attorney, its president and secured creditor) for alleged acts and omissions that...
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OPINION ON CONFIRMATION OF DEBTORS’ JOINT PLAN OF REORGANIZATION AND APPROVAL OF RELATED COMPROMISES AND SETTLEMENTS Best Products, Inc. and its affiliates (whom I will refer to together as “Best”), seek to confirm a joint plan of reorganization which has garnered the overwhelming support of all its creditor classes except for those (“Objec-tants”) which hold claims that are contractually...
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The Chapter 7 Trustee, A. Thomas Pokela, has filed a Complaint by Trustee to Avoid Unprotected Security Interest in Personal Property, an adversary matter that requires a determination of the validity, priority, and extent of a creditor’s lien in Debtors’ automobile. An answer was filed by Sioux Falls Attorney Kent R. Cutler on behalf of Defendant Dakotas United Methodist Federal Credit Union [her...
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MEMORANDUM OPINION AND ORDER DENYING MOTION OF COOK COMPANIES FOR RELIEF FROM THE AUTOMATIC STAY This matter came on before the undersigned United States Bankruptcy Judge on January 27, 1994, upon the Emergency Motion of the Cook Companies for Relief from the Automatic Stay (“Motion for Relief’), filed by Cook Group, Inc., Wilson-Cook Medical, Inc., Cook, Inc., Vance Products, Inc., and Sabin Co...
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RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT I. ISSUE Hal M. Hirsch, the Chapter 7 trustee of the consolidated estate of Colonial Realty Company, Jonathan Googel, and Benjamin Sisti (the debtors), filed a complaint on July 12,1993 against Michael Marinelli, the defendant. On November 15, 1993, the trustee filed an amended complaint containing four ...
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ORDER This case is before the Court on debtor E.L. Fitzgerald’s motion for the appointment of counsel pursuant to 28 U.S.C. § 1915(d). Debtor is presently incarcerated and seeks counsel to assist him as a debtor in this Chapter 7 case and as a defendant in an adversary proceeding. After carefully considering debtor’s motion, the trustee’s response, the record and the applicable law, t...
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DECISION AND ORDER BACKGROUND On April 16, 1992 the Debtor, Phyllis A. Kephart, M.D. (The “Debtor”), filed a petition initiating a Chapter 7 case. The only debts listed on the Debtor’s schedules were a first mortgage on her residence, a $12,000 personal loan with Marine Midland Bank, a student loan of less than $2,000 due to the Massachusetts Higher Education Assistance Corporation and an ind...
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DECISION REGARDING PLAINTIFF’S COMPLAINTS FOR DECLARATORY JUDGMENT Edward G. LeRoux, Jr. (LeRoux) and Albert F. Curran, Sr. (Curran) are debtors in separate cases before this Court. Before the Court are complaints filed by plaintiff, Summit Investment and Development Corporation (“Summit”), against each debtor seeking injunctive and declaratory relief to remove the defendants as gener...
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MEMORANDUM OPINION On November 15, 1993, Art Ackerson (Ackerson) filed an involuntary bankruptcy petition against Runaway II, Inc. (Runaway), a Missouri corporation, pursuant to 11 U.S.C. § 303 (1993). Runaway and Wayne Royal (Royal) filed a motion to dismiss. The Court held a hearing on the involuntary petition and the motion to dismiss on January 20, 1994. At that hearing, the Court deferre...
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DECISION ON MOTION AUTHORIZING DEBTOR TO EMPLOY COUNSEL, NUNC PRO TUNC Debtor filed this case under Chapter 11 on December 23, 1992. He paid a retainer of $7,500.00 to Jason Rosenberg, Esq. (“Rosenberg”) in connection with legal services in that regard. Rosenberg did not seek permission to be employed as required by 11 U.S.C. § 327 and Local Rule 31 until May 18, 1994. He asks that he be reta...
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OPINION This matter is before the court for determination of Debtor’s request for approval of his Amended Disclosure Statement and Plan. Shawmut Bank, N.A. and Signal Capital Corporation (the “Creditors”) have filed objections. The parties agree that the adequacy of the Statement and confirmability of the plan depend upon the treatment which I accord to Debtor’s rights under a te...
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MEMORANDUM AND ORDER A trial of the above-captioned case was conducted on February 2, 1994. After considering the evidence, applicable authorities and the argument of counsel, I make the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Debtor filed a petition for relief under Chapter 13 of the Bankruptcy Code on April 17, 1992. Debtor properly schedule...
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OPINION AND ORDER I.INTRODUCTION This adversary proceeding involves the application of 11 U.S.C. § 550, regarding recovery by the bankruptcy trustee of payments made to transferees of avoided transactions. The Chapter 7 Trustee, Walter T. Thompson (“Trustee”), alleges that a transfer from the Debtor, Food & Fibre Protection, Ltd. (“Food & Fibre”) to Defendant Ivan Jonovich (“Jono...
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ORDER RE: (1) MOTION TO DISMISS FOR LACK OF CORPORATE AUTHORITY; (2) MOTION TO ABSTAIN PURSUANT TO 11 U.S.C. § 305; (3) MOTION TO EXCUSE COMPLIANCE WITH 11 U.S.C. § 543 I.INTRODUCTION. Greyhound Financial Corporation (“Greyhound”) has filed three motions, each aimed, to a greater or lesser degree, at the right of the Debtor, Uno Broadcasting Corporation (“Debtor”), to maintain th...
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*548 MEMORANDUM & ORDER The plaintiff-creditor, Ramsey National Bank & Trust Co. (Bank), commenced the above-entitled adversary proceeding by complaint filed July 27, 1993, seeking a determination that outstanding indebtedness which arose from two unsecured loan transactions was nondischargeable pursuant to section 528(a)(2)(B) of the Bankruptcy Code. The defendant-debtor, Keith ...
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MEMORANDUM DECISION Thomas L. Schreiber and Jane L. Schreiber (“Creditors”) seek in their Amended Creditors’ Complaint Objecting to Discharge of Debtor to have their claim in the amount of $20,000.00 excepted from discharge under 11 U.S.C. §§ 523(a)(2)(A) and (a)(4). Ronald E. Selby (“Debtor”) has answered and the matter was tried on February 28, 1994. In Count I of their complaint, Creditors se...
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OPINION AND ORDER INTRODUCTION This case is before the Court on Cross-Motions for Summary Judgment filed by *276 Lawrence Cutler, Howard Cutler and Can-dette Cutler (“Cutlers”), on the one hand, and Robert J. Davis, Trustee (“Trustee”) for the Chapter 7 estate of Randy' Scott Cutler (“Debtor”), on the other. At issue is the complex and often tortuous interaction betw...
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MEMORANDUM OPINION This matter is before the Court on Motion For Relief From Stay Or To Dismiss Or Convert filed by Louise Y. Pulliam Kelley (“Movant”), a secured creditor in this Chapter 11 ease. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(G). The Court held a hearing on this motion on March 30, 1994. Based on the evidence presented at the hearing and the arguments of cou...
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MEMORANDUM OPINION This matter comes before the Court on the Trustee, Sheldon L. Solow’s motion for summary judgment in opposition to the motion to modify the automatic stay brought by CAM-CO Incorporated (“CAMCO”), CAMCO Connecticut (a division of CAMCO), Texas CAM-CO Incorporated, Avmar Incorporated, Ard-co Incorporated, and Aircraft Turbine Service, Incorporated (collectively refer...
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MEMORANDUM & ORDER The matter before the court is confirmation of the Debtors’ First “Amended” Plan of Reorganization (Plan) under Chapter 12 of the United States Bankruptcy Code. The Debtors, Wayne and Pamela Foertsch, filed their modified plan of reorganization on November 18, 1993. The standing Chapter 12 Trustee (Trustee) and Lincoln State Bank (Bank), the Debtors’ principal secured c...
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DECISION ON ORDER DENYING FIRST NATIONAL BANK, DAYTON’S MOTION FOR SUMMARY JUDGMENT ON OBJECTION FILED BY VARIABLE ANNUITY LIFE INSURANCE COMPANY ET AL. (“THE NOTE-HOLDERS”) 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 ...
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MEMORANDUM & ORDER The matter before the court is a motion filed by the official unsecured creditors’ committee on January 10, 1994, for an order converting the case from a Chapter 11 reorganization to a Chapter 7 liquidation pursuant to 11 U.S.C. § 1112(b) and the appointment of an interim trustee. The motion to convert was joined by First Western Bank & Trust of Minot, Butler Machinery ...
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OPINION Comes now before the Court the Motion of Carolyn Sue Buffington for Relief from Automatic Stay pursuant to regular setting in Beaumont, Texas. Also before the Court for consideration is the Motion of J.R. Buffing-ton to Avoid Judicial Lien Pursuant to 11 U.S.C. § 522(f). The parties agree that the identity of legal issues present in both motions requires that these motions be consider...
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MEMORANDUM OPINION This adversary proceeding came on for trial on plaintiff Shirley A. Bourassa’s complaint to exempt from discharge pursuant to 11 U.S.C. § 523(a)(5) certain obligations of her former husband, the debtor/defendant, Walter L. Bourassa. At the commencement *9 of the trial, the Court granted the plaintiff’s motion to withdraw that portion of the Complaint objecting to the debtor...
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OPINION Introduction On March 23, 1990, Mechem Financial, Inc. (“Mechem”) filed a voluntary Petition under Chapter 11 of the Bankruptcy Code. On that same day, Robert G. Dwyer, Esq. was appointed as Chapter 11 Trustee. The case was subsequently converted to Chapter 7 and Robert G. Dwyer, Esq. (“Trustee”) presently serves as the Chapter 7 Trustee. Northern Insurance Compa...
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OPINION Comes now before the Court the First Amended Complaint of Steven E. and Kathleen Fandre, hereinafter referred to as (“Debtors”) to Avoid Preference and Determine Dischargeability of Debt pursuant to regular setting in Plano, Texas. Pursuant to a joint pre-trial order all parties have waived oral hearing and requested that this Court address the issues presented in this case th...
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OPINION AND ORDER Before the Court is a Motion for Summary Judgment (docket' No. 9, filed on January 8, 1993)1 submitted by the trustee for the debt- or J. Gus Lallande, Inc. (Lallande) against plaintiff Caridev, Inc. (Caridev) in an action involving a contract for the sale of property by the trustee on behalf of debtor estate to plaintiff corporation. Caridev submitted its Opposition and Cross...
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DECISION & ORDER BACKGROUND On November 2, 1993, the debtors, Elroy Clark and Patricia Clark (the “Debtors”), filed a petition initiating a Chapter 13 case. On their schedules, the Debtors listed the City of Rochester and the County of Monroe as secured creditors for unpaid property taxes due for their residence at 125 Elmdorf Avenue (“Elmdorf Avenue”). On November 16,1993, the ...
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OPINION Before the Court is the Motion for Judgment on the Pleadings (the “Motion”) filed by the defendant Rental Tools/Equipment (“Defendant”). The Motion requires the Court to decide an issue expressly reserved by the Third Circuit Court of Appeals in its recent decision Construction Management Services, Inc. v. Manufacturers Hanover Trust Company (In re Coastal Group Inc.), ...
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OPINION Stanley Miller (the “Trustee”) has filed two motions for summary judgment under the Trustee’s multi-count complaint against numerous defendants. One motion concerns Counts 8 and 9 against Martin Hanley (“Hanley”), and the other concerns Counts 32 and 33 against Paul Lane and his wife Kathleen Lane (the “Lanes”). Paul Lane is the brother of Andrew J. Lane (the “Debtor”), ...
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MEMORANDUM OPINION At issue in this matter is whether the record should be reopened on remand. In *105 March 1993, the Court approved the fourth and final fee application of the law firm of David & Hagner, P.C. over the objections of the Federal Deposit Insurance Corporation (“FDIC”). The fees were for services rendered by David & Hagner in defending Gary and Ann Grimm (t...
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OPINION REGARDING STANDING TO BRING ALTER EGO ACTION On June 26, 1991, an involuntary petition for relief under chapter 7 of the Bankruptcy *599 Code, 11 U.S.C. § 101 et seq., was filed against R.C.S. Engineered Products Company. One of the petitioning creditors was Spartan Tube & Steel, Inc. Rather than responding to the petition as such, the Debt- or filed it...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon the Motion for Summary Judgment, with supporting brief, filed on March 30, 1994, to which the defendant responded on April 14, 1994. The plaintiff filed a reply on April 28, 1994, whereupon the matter was under submission. The plaintiff seeks to have a debt held nondischargeable, pursuant to Bankruptcy...
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ORDER DISMISSING DEFENDANTS THIS CAUSE is before the Court upon a sua sponte review of the file. Inasmuch as the complaint joins parties who may not be joined in this single proceeding, the complaint will be dismissed without prejudice to the filing of proper, separate adversary proceedings against each of the defendants. 1 On April 21, 1994, the debtor filed “Co...
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ORDER SUSTAINING OBJECTION TO MODIFICATION THIS CAUSE is before the Court upon the Objection to Modification of Plan After Confirmation, filed by SAC Federal Credit Union, on February 7,1994. The matter was called for hearing at which time the parties appeared, presented the Court with a stipulation of the facts, and argued their respective positions. The issue before the Court is whether the...
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OPINION The Federal Deposit Insurance Corporation (“FDIC”) moves for the court “to compel” Mitchell B. Robbins (the “Debtor”) to pay postpetition real estate taxes, condominium fees and other obligations related to properties subject to mortgages held by the FDIC. The motion demonstrates a basic misconception of the effect of a postfiling secured credit stipulation or adequate protection order. ...
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MEMORANDUM OPINION AND ORDER On March 24, 1994, the Court conducted a hearing on an Application for Authority to Employ Collection Agency, filed by Arnold S. White (“Trustee”). In the Application, the Trustee seeks authority pursuant to 11 U.S.C. § 327(a) to retain the services of Charlene Dunbar of Children’s Support Services of Ohio, Inc. (“Dunbar”) to assist in the collection of ch...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION TO TERMINATE AUTOMATIC STAY Metro North Company filed a Motion for Relief from Automatic Stay to take possession of leased premises from debtor Knight Jewelry, Inc., and to dismiss or convert the case to Chapter 7. At the hearing on April 20, 1994, appearances were: Metro by counsel Steve Horak; debtor by corporate representative Shai Harme...
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MEMORANDUM OPINION AND ORDER On March 31,1994, the Court conducted a hearing on the Application of Arnold S. White for Allowance of Compensation as Counsel for Trustee and the Final Report and Account of Trustee. At the hearing, Arnold S. White (“Trustee”) was present along with a representative of the Office of the United States Trustee (“U.S. Trustee”). No party in interest nor the ...
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MEMORANDUM OPINION These bankruptcy cases present a common issue of whether a debtor may claim the homestead exemption of $30,000 allowed un *491 der NH law, N.H. RSA 480:1 (effective January 1, 1993), and avoid liens impairing the exemption claim pursuant to 11 U.S.C. § 522(f)(1), Bankruptcy Rule 4003, and Local Rule 37, when the hens impairing the exemption claim were g...
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MEMORANDUM DECISION On June 12, 1992, STEPHANIE LYNN (“Debtor”), acting pro se, filed a complaint to have certain debts deemed dischargeable pursuant to 11 U.S.C. § 523(a)(8)(B). On July 15, 1992, an answer was filed by UNITED STUDENT AID FUNDS, INC. (“USAF”). The Debtor subsequently obtained the assistance of counsel on a pro bono basis. Various pretrial proceedings were conducted in thi...
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MEMORANDUM OPINION AND ORDER SIDNEY B. BROOKS, Bankruptcy Judge. THIS MATTER came before the Court on the Involuntary Petition in bankruptcy filed by two creditors of Oakley Custom Homes, Inc. (“Alleged Debtor”). The Court, after preliminary hearing held December 9, 1993 regarding the Alleged Debtor’s Motion to Dismiss, held a trial on the Involuntary Petition, February 15 and 16,1994...
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OPINION PROCEDURAL BACKGROUND This matter comes before the court on a motion in limine brought by Datek-Instacard Corporation (“Datek”) in the course of an estimation proceeding. The motion seeks a ruling whether the doctrine established by the United States Supreme Court in D’Oench Duhme & Co. v. FDIC, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956 (1942) (“D’Oench, D...
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*851 MEMORANDUM This matter comes before the Court on the Debtors’ Response to GMAC’s Motion to Terminate the Automatic Stay as to a Nissan automobile. The Debtors have requested a hearing on GMAC’s Motion. The Debtors’ statements fail to set forth sufficient grounds for a hearing on GMAC’s motion to terminate stay. The Debtors simply state that they have been past due on the account, but can ca...
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CORRECTED TEXT OF BENCH RULING DELIVERED JANUARY 27, 1994 DENYING MOTION TO DEEM BALLOTS TIMELY RECEIVED American Credit Indemnity Company (“ACI”) has moved to have its ballots, which were received five days after the ballot deadline, deemed timely received, notwithstanding that distribution has commenced under the debtors’ confirmed plan of reorganization. I. Commendably, neith...
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OPINION This is what should have been a simple eminent domain case. It is anything but that. It and its companion cases have passed through more state and federal courts than perhaps any eminent domain litigation in the history of this Commonwealth. As a result, the mere passage of time has spawned two of the many claims presented here — the taking *457authority’s claim for use and occupancy an...
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RULING AND ORDER ON DEFENDANT’S MOTIONS TO DISMISS OR FOR A MORE DEFINITE STATEMENT AND MOTION FOR SUMMARY JUDGMENT ROBERT L. KRECHEVSKY, Chief Judge. I. ISSUE In this adversary proceeding filed October 15, 1993, Hal M. Hirsch (Hirsch), trustee of the consolidated estate of Colonial Realty Company (“Colonial”), Jonathan Googel (“Googel”), and Benjamin Sisti (“Sisti”)...
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ORDER On May 10, 1994, this Court conducted a trial on the Complaint in the above-referenced adversary proceeding in McAlester, Oklahoma. Counsel appearing in person were Belva Brooks Barber on behalf of Red Oak Branch of Farmers State Bank of Quinton, and the Debtors appeared pro se. After a review of the evidence, the arguments of counsel and the applicable law, the Court does hereby enter the...
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MEMORANDUM DECISION Preliminary Statement On December 27, 1993, LOUIS A. MOV-ITZ, the Trustee, filed a complaint requesting: (1) the turnover of certain property; (2) an accounting; (3) that the Debtor’s discharge be denied under 11 U.S.C. § 727; and (4) that a permanent injunction issue enjoining the Debtor and any person or entity that received certain property of the estate fr...
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MEMORANDUM OPINION This case comes before the Court on trial to determine the ownership of two insurance policies and to determine title to certain equipment presently in the possession of one Scott Kessler. The Court held a two day bench trial on March 3 and March 4, 1994. The parties were given an opportunity to file post-trial briefs which they have done. Having duly considered the evidenc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE was heard on the confirmation of the Debtor’s proposed Chapter 13 plan. Ellen J. Wilson, the Debtor’s former wife and a creditor in the ease, objects to confirmation of the Debtor’s plan on the basis that the plan was not proposed in good faith as required under 11 U.S.C. § 1325(a)(3). After review of the relevant pleadings and file documents...
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ORDER AWARDING SANCTIONS THIS MATTER came on for hearing on May 20, 1994 on the motion of the debtors for the imposition of sanctions pursuant to 11 U.S.C. § 362 against White Sands Auto Sales, Ray Hudson Enterprises, and Northwest Florida Recovery, Inc. for willful violation of the automatic stay. The debtor appeared pro se and Ray Hudson and Brian Sparling appeared as witnesses for Ray Huds...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE was heard before the Court on confirmation of the Debtor’s proposed plan of reorganization. The Court, having reviewed the submission of documents and exhibits, the testimony of witnesses, and the argument of counsel, makes the following findings of fact and conclusions of law. For the reasons stated herein, the Court denies confirmat...
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OPINION A INTRODUCTION Presently before this court in the individual voluntary Chapter 11 bankruptcy case of ELLEN J. CALVANESE (“the Debtor”) are (1) the Debtor’s request that we confirm her Amended Plan of Reorganization, As Further Modified (“the Plan”) over the opposition of the first mortgagee of her residential realty, G.E. Capital Mortgage Corp. (“G.E.”); and (2) G...
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MEMORANDUM OPINION The debtor, Charles Joseph Hayes III, appears by his attorney, Richard C. Wallace of Evans & Mullinix, P.A., Lenexa, Kansas. The creditor, United Missouri Bank, appears by its attorneys, Norman E. Fretwell and *719 Betsy Morgan Garvin of Watson, Ess, Marshall & Enggas, Kansas City, Missouri. The Chapter 7 trustee, Carl R. Clark, appears by his attorney,...
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MEMORANDUM OPINION Two interrelated issues presently are before the court: (1) the appropriate method of marshalling estate assets in order to pay the se *808 cured claim of Huntington National Bank (hereinafter “Huntington”) pursuant to a settlement between Huntington and the chapter 7 trustee (hereinafter “trustee”); and (2) the trustee’s objection to the secu...
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ORDER GRANTING RELIEF FROM THE AUTOMATIC STAY This matter came before the court on the motion of Resolution Trust Corporation (RTC) for relief from the automatic stay filed February 16, 1994. The Debtor filed an objection dated February 28, 1994. The Chapter 13 Trustee did not file an objection on behalf of the Debtor’s unsecured creditors. No other interested parties objected. Counsel for RT...
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ORDER This matter comes before the court upon NationsBane Financial Services Corp.’s (hereinafter referred to as “NationsBane”), Objection to Amended Chapter 13 Plan. At the hearing, NationsBane was represented by Ronald F. Barbare of Lathan & Barbare, P.A.; the debtor was present and represented by Sheila R. Young of the Law Office of John Kirkland Fort; and the Chapter 13 Trustee wa...
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RULING ON PLAINTIFF’S MOTION TO AMEND COMPLAINT I. The trustee for the estate of Colonial Cheshire I Limited Partnership, the debtor in the underlying Chapter 7 case, filed an adversary proceeding on April 7, 1993 seeking the return of all or a portion of funds the debtor had transferred prepetition to the defendant-law firm. The complaint states that these funds were property of...
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ORDER This matter is before the Court to resolve the dispute between the Third Party Plaintiff (herein “the Bank”) and the Third Party Defendant (herein “Pruitt”). The matter between the Plaintiff and the Defendani/Third Party Plaintiff has been resolved by Order filed on January 14, 1994. On December 16, 1992 the Trustee filed suit to recover the payments from the Bank as unauthoriz...
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ORDER GRANTING INVOLUNTARY PETITION Before the court is the Involuntary Petition filed November 4, 1993, by Ford Motor Credit Company (hereafter called “FMCC”), Ford New Holland, Inc. (hereafter called “FNH”), and Kubota Tractor Corporation (hereafter called “Kubota”), seeking an order for relief under Chapter 7 of the Bankruptcy Code against Robert R. Knoth (hereafter called “Debtor”...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on May 23, 1994, upon the Debtors’ Motion for Post-Confirmation Modification of Plan filed March 30, 1994, and the objections thereto filed by Courtesy Ford and the Chapter 13 Trustee. The objection by the Chapter 13 Trustee is a technical objection, and the Debtors have agreed that they will correct that matter. On January 31, 19...
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MEMORANDUM DECISION John J. Bruton, Debtor, has moved to avoid the judicial hen of Spindrift Del Mar Homeowners Association (“HOA”) pursuant to 11 USC Section 522®, claiming that the hen impaired his homestead exemption. HOA opposes this motion, stating that Bru-ton did not reside at the property during those times required by the statute and is not entitled to a homestead exemption under the l...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This Case presents the question of whether a Chapter 13 plan which proposes to cure arrearages on a promissory note, secured solely by an interest in the Debtor’s principal residence, which matured prepetition is an impermissible modification of the mortgagee’s rights under 11 U.S.C. § 1322(b)(2). JURISDICTION This Court has jurisdi...
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DECISION ON EXCEPTION TO DIS-CHARGEABILITY AND OBJECTIONS TO DISCHARGE This is an adversary proceeding brought by First American Bank of New York (“FABNY”) against Arie Bodenstein and Marlene Bodenstein, Defendants, to have certain debt arising from personal guarantees of corporate loans declared nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2)(B) and to deny the Defendants’ discha...
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MEMORANDUM OPINION Debtor filed his petition for relief under Chapter 7 and received an otherwise uneventful discharge. An adversary action was filed by debtor’s former spouse and her dissolution attorney seeking determination of the dischargeability vel non of awards to both in the state court action. In that action debtor’s former spouse Lillian Marie Garcia, was the petitioner and David ...
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MEMORANDUM OF ORDER ON MOTION FOR AUTHORIZATION TO FILE A RIVAL PLAN UNDER CODE § 1121(C) At a hearing on June 9,1994,1 ruled that a rival plan could be filed by an unsecured creditor even though the disclosure statement for the debtor’s plan has been approved. This memorandum explains the basis for that decision. BACKGROUND This chapter 11 case was commenced on June 9, 1993. Th...
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MEMORANDUM OPINION Trial was held on February 14, 15, 18, and March 4, 1994, on plaintiffs complaint to determine dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(B). At the conclusion of the trial the court made findings of fact and conclusions of law from the bench and ruled for debtor defendant. This memorandum opinion supplements the court’s bench ruling. Findings of Fact ...
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MEMORANDUM OPINION Trial was held on February 28 and March 1, 1994, on plaintiffs complaint to determine the dischargeability of debt pursuant to 11 U.S.C. § 523(a)(2)(A) and (a)(4). After the presentation of evidence and the argument of counsel the court ruled in favor of plaintiff. This memorandum opinion supplements the court’s bench ruling. Findings of Fact Debtor filed a voluntary ...
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OPINION Before the Court are a number of cases which involve the right of a Chapter 12 Debt- or to make direct payments to priority and secured creditors without recompense to the Chapter 12 Standing Trustee. In two of those cases, Thomas Lee Ferguson & Catherine Ann Ferguson, (FERGUSONS), Case No. 92-91658, and John Robert Westpfahl & Patricia Ellen Westpfahl, (WEST...
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MEMORANDUM OPINION On September 28, 1993, the court held a hearing on Broadcast Capital, Inc.’s (hereinafter “Broadcast”) motion to reopen the case. The court granted the motion to reopen the case. Broadcast also had pending a motion to correct the confirmation order. At the end of the hearing, the court took the motion to correct the confirmation order under advisement. The court, ha...
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*771 ORDER EXTENDING INJUNCTIVE RELIEF THIS CASE involves St. Petersburg Har-bourview Hotel Corp. d/b/a The Hilton (Debtor) who filed its Petition for Relief under Chapter 11 of the Bankruptcy Code on March 3,1994. On the same day the Debtor also filed its Complaint in which it sought injunctive relief against First Union National Bank of Florida (Bank) who was, at the time of th...
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DECISION Linda L. Marlewski, formerly Linda L. Anderson (“Debtor”), seeks a determination that her student loan obligation to Great Lakes Higher Education Corp. (“Great Lakes”) is a dischargeable debt. Debtor asserts that under § 523(a)(8)(A) of the Bankruptcy Code, 1 her debt first became due *380 more than seven years before the filing of her Chapter 7 bankruptcy...
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Memorandum of Decision Before the court is the United States Trustee’s (UST’s) motion seeking disgorgement of fees by, and sanctions against, Keven A. McKenna, Esq., the debtor’s former counsel. After evidentiary hearings and briefing, I conclude for the reasons set forth below that, although there can be no fee disgorgement, sanctions will be imposed against Attorney McKenna for havi...
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DECISION AND ORDER PRELIMINARY STATEMENT This matter comes before the Court1 upon a motion (“Motion”) by creditor Shearson *765Lehman Brothers, Inc. (“Shearson”), for an Order: (1) vacating the order granting discharge to the above-referenced debtor (“Debtor”); (2) granting Shearson leave to file a proof of claim; (3) vacating the automatic stay to allow Shearson to prosecute its claim; and (4) g...
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DECISION, ORDER AND JUDGMENT DETERMINING RIGHTS BETWEEN RECLAIMING SELLER AND LIEN CREDITOR PRELIMINARY STATEMENT This matter comes before the Court upon a motion for summary judgment (“Motion”) by plaintiff Sandoz Pharmaceuticals Corporation (“Plaintiff’), and a cross-motion (“Cross-motion”) by the debtor, Blinn Wholesale Drug Co., Inc. (“Debtor”) for summary judgment dismissing Pla...
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DECISION AND ORDER ON CREDITORS APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF APPEAL By application and notice of motion dated March 29, 1994, National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) moves for an order pursuant to Bankruptcy Rules 8002(c) and 9006 extending the time to file a late notice of appeal. In support of the motion National Union shows: 1. National Un...
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DECISION AND ORDER ADDRESSING ATTORNEY’S RIGHT TO TESTIFY AND ADMISSIBILITY OF TAPE-RECORDED CONVERSATION PRELIMINARY STATEMENT This matter comes before the Court due to certain evidentiary issues which arose during *433 a hearing on a contested matter within the above-referenced case. The Court has jurisdiction over this case pursuant to sections 157(a), 157(b)(1) ...
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FINDINGS AND CONCLUSIONS SUPPORTING CONFIRMATION OF THREE PARTY PLAN The court has conducted a lengthy eviden-tiary hearing to consider confirmation of either of two competing plans of reorganization. One plan is proposed by P.J. Keating Company (the “Debtor”), whose management is selected by its Class A shareholders. The other plan (the “Three Party Plan”) is proposed by members of t...
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MEMORANDUM OPINION Debtor seeks (at Motion No. 94-590M) to have the involuntary chapter 7 petition brought against it dismissed. It also seeks pursuant to 11 U.S.C. § 303(i)(l) to recover attorney’s fees and costs incurred in resisting the involuntary petition and requests pursuant to 11 U.S.C. § 303(i)(2)(B) an award of punitive damages. According to debtor, the petition must be...
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OPINION After receiving their Chapter 7 discharge, debtors Alvin and Christine Hudson made payments on a debt they believed was still owing but which had, in fact, been discharged. The defendant, Central Bank (“Bank”), accepted the payments without advising the debtors they were no longer obligated on the debt. The debtors filed this *370 action for turnover and for sanctions, alleging that...
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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)(A), (O) and (K), which the Court may hear and determine. PROCEDURAL BACKGROUND 1...
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MEMORANDUM OF DECISION ON RENEWED MOTION OF NEW BED-FORD INSTITUTION FOR SAVINGS FOR RELIEF FROM THE AUTOMATIC STAY By its Renewed Motion for Relief from the Automatic Stay, New Bedford Institution for Savings (“the Bank”) seeks relief from the automatic stay, 11 U.S.C. § 362(a), to foreclose on the real property belonging to the Debtor, John E. Daly, and located at 233 Jefferson Street, Nort...
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OPINION A INTRODUCTION Before this court are a creditor’s Objections to, inter alia, the hourly rates sought to be collected in a request for interim compensation from related Debtors’ estates by the law firm of Fellheimer, Eichen & Braverman, P.C. (“FEB”), the Debtors’ counsel; and a motion of FEB for reconsideration (“the Motion”) of hourly rates allowed by t...
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MEMORANDUM OPINION AND ORDER ON OBJECTION TO CLAIM OF BENCH CRAFT FURNITURE On this day came on for consideration the Debtor’s First Amended Objection to the Claim of Bench Craft Furniture, filed by the Debtor, Dawn Husain (the “Debtor”). The Court, having heard the evidence and arguments of counsel, and having reviewed the pleadings and briefs on file herein, finds that the objection should be ...
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OPINION AND ORDER ON MOTION TO CONFIRM FIRST AMENDED CHAPTER 13 PLAN THIS MATTER is before the Court on the Debtor’s Motion to Confirm First Amended Chapter 13 Plan. At the time the case came on for hearing, this Court rendered its opinion from the bench denying the motion to confirm and giving the Debtor an opportunity to file a second amended plan. This opinion and order will supplement the o...
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DECISION AND ORDER DENYING CONFIRMATION OF DEBTOR’S PROPOSED MODIFICATION TO CHAPTER 13 PLAN Dated at Dayton, Ohio, this 9th day of June, 1994. This matter is before the court for decision based upon an evidentiary hearing held on May 4,1994. 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...
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MEMORANDUM OPINION AND ORDER At present, there are two related proceedings pending before the Court, both brought by the debtor’s former spouse. The first is a *332 motion to modify the automatic stay and the second is a complaint to determine the dis-chargeability of a debt. The parties have filed cross motions for summary judgment under Fed.R.Civ.P. 56, made applicable ...
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OPINION ON UNION’S MOTION TO CONFIRM AND DEBTOR’S CROSS-MOTION TO VACATE AN ARBITRATION AWARD The International Ladies’ Garment Workers’ Union, AFL-CIO (the “Union”), seeks to confirm an arbitration award which would compel The Leslie Fay Companies, Inc. (“Leslie Fay”) to adhere to a postpetition amendment to a collective bargaining agreement. Leslie Fay cross-moves to have me set aside t...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtors’ Motion to Reopen Chapter 7 Case and Vacate Discharge. At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished the Court to Consider in reaching its decision. This Court has reviewed the written arguments of Counsel, supporting affidavits, and exhibits as well as the ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court upon the United States Trustee’s (herein “U.S. Trustee”) Motion to Dismiss and Debtor’s Objection. At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. Both Debt- or and the U.S. Trustee filed Post Hearing Briefs. The Court has revi...
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MEMORANDUM GRANTING THE DEBTOR’S OBJECTION TO THE INTERNAL REVENUE SERVICE’S PROOF OF CLAIM I. INTRODUCTION The issue before the court is whether a closely held corporation’s monetary advances to its sole shareholder were taxable dividends or non-taxable loans. For the reasons stated *44in this memorandum, the court finds that the advances at issue were non-taxable loans. The following constitute...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Application for Authority to Employ Attorney as Special Co-Counsel to Trustee, the Objection of the Debtor to the Trustee’s Application for Authority to Employ Attorney as Special Co-Counsel to Trustee, and Debt- or’s Memorandum In Support thereto. At the Hearing, the parties were afforded the opportunity to present evidenc...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the United States Trustee’s Motion to Dismiss under 11 U.S.C. § 707(b). A Hearing was held in which the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the arguments of Counsel, exhibits, relevant statutory and case law, a...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Plaintiffs Complaint Citation in Contempt of Court and Defendant’s Answer. At the Trial, the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the arguments of counsel, exhibits, relevant statutory and case law, as...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon remand from the Honorable John W. Potter, Senior Judge for the United States District Court for the Northern District of Ohio, Western Division, with direction to set forth with some particularity finding for cause to dismiss this ease. This Court has reviewed the written objections of Counsel, ail Plans and Amendm...
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OPINION An art gallery entered into a five year lease agreement with a shopping center. Within ninety days of the art gallery’s bankruptcy petition, the gallery and the shopping center entered into a termination of lease agreement with the gallery transferring about $38,000 to the shopping center. Post-petition, the art gallery, as debtor in possession, sought to avoid the $38,000 tra...
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MEMORANDUM I. INTRODUCTION The matter before the Court is an adversary proceeding brought by Thomas K. Steele (the “Plaintiff’) against Paul K. Bou-tiette (the “Debtor” or “Defendant”), pursuant to 11 U.S.C. §§ 523 and 727. Pursuant to the Plaintiffs Complaint, the Plaintiff seeks that his claim be deemed non-dis-ehargeable under § 523(a)(2) (Count I) and that the Debtor be denie...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT The above-entitled matter came on for hearing before the undersigned on the 19th day of May, 1994, on a motion by Thomas *685 Miller (“trastee”), Timothy Moratzka (“Mor-atzka”) and Norwest Bank Minnesota, National Association (“Norwest Bank”) (collectively “the Movants”) for summary judgme...
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OPINION This matter comes before the court by way of Plaintiffs, Clifford Electronics, Inc., motion for an Order Determining the Nondis-chargeability of a Debt pursuant to 11 U.S.C. §§ 523(a)(2), 523(a)(4), and 523(a)(7). The debtor, Michael Anthony Prieto, filed opposing papers. The issues raised by this contested matter are core matters as defined by Congress in 28 U.S.C. § 157 et seq. Th...
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MEMORANDUM OPINION On May 18,1994, two matters came before the Court in this chapter 13 case. First, the Court took testimony and heard arguments of counsel on Andover Bank’s motion to dismiss the debtor’s chapter 13 case or alternatively convert it to a case under chapter 7. Second, the Court heard argument on the debtor’s motion for summary judgment on her complaint for avoidance of...
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OPINION This case and these proceedings are before the Court on Plaintiffs complaint filed on February 2, 1993, seeking to avoid a fraudulent transfer and to recover transferred property of the estate and objecting to debt- or’s discharge. See 11 U.S.C. §§ 548, 727. Similarly, these two adversary proceedings are related to another matter filed by Plaintiff in the main case objecting to Debt...
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OPINION In each of these cases, Creditor Tandy Credit filed a Motion To Extend Time For Filing Complaint Objecting To Discharge. Although the title refers to an objection to discharge, the relief requested in each motion is for an extension of a deadline within which to file a complaint objecting to the dischargeability of a claim. The prayer for relief in each motion requests that the Court ...
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MEMORANDUM OPINION This matter is before the Court on Motions for Partial Summary Judgment filed herein by defendant Acceleration National Insurance Company (“Acceleration”) and the Response filed by the plaintiff. Acceleration’s Motions are in regard to Counts VI, VII, and XII of the plaintiffs Complaint. This Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b); it is a...
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DECISION Richard and Lori Gonzalo (the “Debtors”), filed a joint Chapter 7 petition on June 17, 1992. At that time, they were the record owners of, and resided in a condominium unit located at 133A Stack Drive, Staten Island, New York (the “Condominium”). Schedule D of Debtors’ petition listed Citicorp Mortgage Inc. (“Citibank”) as a secured creditor secured by a mortgage affecting the Debtor...
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MEMORANDUM OPINION On September 16,1993, Susann E. Rostler (“Debtor”) filed an amendment to her bankruptcy schedules, claiming an increased homestead exemption of $100,000 under California Code of Civil Procedure (“C.C.P.”) § 704.730(a)(3)(B). Debtor claimed that as a result of her pre-petition use of the drug L-tryptophan she was rendered disabled and unable to engage in substantial gainful empl...
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RULING ON MOTION FOR PROTECTIVE ORDER I. Holders of certain subordinated notes (the noteholders and the notes) of Wyatt, Inc., a Chapter 11 debtor (the debtor), have attempted to obtain post-trial discovery, including several depositions and a request for production of documents, in aid of their motion for reconsideration of the court’s disal-lowance of their claims and for a new...
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MEMORANDUM AND ORDER ON OBJECTION TO PROOF OF CLAIM The debtor objects to a proof of claim for income taxes filed by the Department of the Treasury, Internal Revenue Service (the “Service”). Because I find that the debtor has offered no evidence to rebut the prima facie validity of that claim, and because I find the debtor’s legal arguments as to the invalidity of the claim to ...
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DECISION and ORDER ON NOTION TO DISMISS In this joint Chapter 7 case, the United States Trustee has moved to dismiss the case pursuant to 11 U.S.C. § 707(a). The motion came on for hearing before the court. This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(b) and the General Order of Reference entered in this District. This is a core proceeding arising under 28 U.S.C. § ...
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ORDER ON MOTIONS FOR 2004 EXAMINATION Two official committees in these consolidated Chapter 11 bankruptcy cases, the Unsecured Creditors’ Committee (“UCC”) and the Equity Security Holders’ Committee (“Equity Committee”), have moved for extensive examinations pursuant to F.R.B.P. 2004, with a comprehensive demand for production of documents by the proposed witnesses. The motions are oppose...
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ORDER ON MOTIONS FOR STAY OF PERSONAL INJURY CLAIMS PROCEEDINGS BY UNSECURED CREDITORS’ COMMITTEE The Official Committee of Unsecured Creditors (“UCC”) in these consolidated Chapter 11 bankruptcy eases has filed objections to 100 proofs of claim filed by asbestos claimants and proposes to conduct discovery in each of the contested matters so initiated. The Official Committee of Injury Claimants...
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DECISION & ORDER BACKGROUND On August 24,1992, the Debtor, Robert W. Hickey (the “Debtor”), a certified public accountant, filed a petition initiating a Chapter 7 case. On May 17, 1993, the Chapter 7 Trustee (the “Trustee”) filed an adversary proceeding against the Debtor, Margaret M. Hickey (“Margaret Hickey”), the Debtor’s non-filing spouse, and Gary E. Wood (‘Wood”) seeking to avo...
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MEMORANDUM OPINION AND ORDER In this ease, Larry Joe Poke and Karen Sue Poke jointly filed their petition in bankruptcy under Chapter 7 of the Bankruptcy Code on December 23, 1993 and received their discharge on March 25, 1994. Prior to the debtors filing their petition, on June 9, 1992, General Motors Acceptance Corporation (hereinafter “GMAC”) received a judgment against the debtors in ...
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MEMORANDUM OPINION AND ORDER The Court has before it a “Motion to Determine Tax Liability to the I.R.S.” filed by the trustee in the above captioned proceeding, pursuant to 11 U.S.C. § 505(b), requesting the Court to discharge the trustee, the debtor and any successor to the debtor from any further administrative tax liabilities arising from the sale of real property by the trustee and by vir...
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ORDER GRANTING MOTION OF DEFENDANT STATE OF OHIO, DEPARTMENT OF TRANSPORTATION FOR DISMISSAL AND REQUEST OF DEFENDANT KNOWLEDGE SOLUTIONS, INC. FOR ABSTENTION The adversary proceeding came on before the Court on March 18, 1994, for hearing on the motion of Defendant State of Ohio, Department of Transportation (“ODOT”) for dismissal or for a transfer of proceedings. ODOT appeared by Mark R...
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ORDER DENYING EX PARTE MOTION TO DIVERT MAIL The trustee has filed an ex parte motion to divert mail, requesting an order requiring the post office to deliver the debtor’s mail to the trustee’s office. The trustee asserts that the requested diversion will protect against mail vandalism and loss. Although there is no explicit authority in the Bankruptcy Code for the Court to grant the relief requ...
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ORDER ON MOTION FOR INSPECTION OF FILES AND DOCUMENTS This core proceeding 1 came on for hearing on motion of the Trustee seeking to inspect certain legal case files of the debtor, which files were transferred to certain other attorneys prior to the petition filing date. As basis for the motion, the Trustee asserts the following: 1. That the above-referenced case was converted to chapter ...
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DECISION In this matter, the Plaintiff and Movant herein, Norrell Health Care, Inc. (“Norrell”), seeks to have $150,000 in punitive damages awarded by an arbitrator declared nondis-chargeable under 11 U.S.C. § 523(a)(6). Norrell is represented by Robert White, Esq. of the firm of White & McMahon. The Defendants, Cynthia Clayton (“Clayton”) and David Wolff (‘Wolff)”, opposin...
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OPINION PROCEDURAL BACKGROUND This matter comes before the court as the result of a trial held October 29, 1993 in an adversary proceeding brought by Debtor, Matthew A. Leahey, requiring the court to determine whether his federal tax debt, including penalties and interest, is dischargea-ble under 11 U.S.C. § 523(a)(1)(C). This court found that the underlying tax debt owed to the Internal Re...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT OF AMSOUTH FINANCIAL CORP. This core proceeding came on to be heard on the timely-filed complaint of AmSouth Financial Corp. (“AmSouth”) seeking to have its debt excepted from the discharge provisions of 11 U.S.C. § 727, and objecting to the debtor’s general discharge. The court bifurcated the proceeding and h...
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ORDER Before the Court are motions by Frank W. Scroggins (“Plaintiff’), as Successor Trustee for Brown Transport Truckload, Inc., et al. (collectively referred to as “Debtor”) and by Thomson Consumer Electronics, Inc. (“Defendant”). Defendant has presented this Court with a Motion To Dismiss or, in the Alternative, for Summary Judgment. Conversely, Plaintiff has offered his own Motion to Set As...
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MEMORANDUM The question presented is whether the Chapter 7 trustee’s avoidance power under *4811 U.S.C. § 545(2) defeats the State of Tennessee’s perfected tax lien on personal property. The state’s lien prevails. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I Boat Land Company, Inc. is a Tennessee Corporation that engaged in business in Davidson County, Tennes...
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MEMORANDUM DECISION ON PETITIONING CREDITORS’ MOTION FOR DEFAULT JUDGMENT AND ALLEGED DEBTOR’S CROSS-MOTION TO DISMISS Republic National Bank of New York, Merchants Bank of New York, Israel Discount Bank of New York and Bank Leumi Trust Company of New York (the “Banks”), as petitioning creditors in this involuntary chapter 7 case, have moved this court (“the Motion”) pursuant to § 303...
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MEMORANDUM OPINION AND ORDER GRANTING FIRST TENNESSEE BANK NATIONAL ASSOCIATION’S MOTION FOR SUMMARY JUDGMENT This core proceeding1 came on for hearing on motion of First Tennessee Bank National Association (“First Tennessee”) seeking summary judgment on its action under 11 U.S.C. § 523(a)(2)(B) against Defendant Lynn Andrew Warner, Jr. (“Defendant”). As basis for its motion, First Tennessee aver...
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MEMORANDUM OPINION AND ORDER RE COMPLAINT TO DETERMINE DISCHARGEABILITY Plaintiff, Charles Sidney Chism, the above-named debtor (“Mr. Chism”) filed the instant adversary proceeding 1 seeking a judicial determination that certain obligations owing to defendant, Wanda Faye Tatum Chism (“Mrs. Chism”), as a result of a divorce decree are dischargeable. 11 U.S.C. § 523(a)(5). After consideration...
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MEMORANDUM OPINION I. FACTS The plaintiffidebtor here seeks to discharge his student loans under 11 U.S.C. § 523(a)(8)(B). That section permits the Court to order discharge of a student loan if excepting the loan from discharge would impose an undue hardship on the debtor and the debtor’s dependents. The debtor filed his Chapter 7 proceeding on January 15, 1993. He commenced this adversary ...
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DECISION ON OBJECTION TO CLAIM OF JOHN H. SUTTER The primary question in this objection to a landlord’s claim for damages on a terminated lease is whether the term “surrendered” in the limitation imposed by 11 U.S.C. § 502(b)(6) 1 applies when the landlord declines the return of the premises. The secondary question, which is compelled by conflicting computations of damages and ...
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MEMORANDUM DECISION This motion seeks to revoke an order entered in this case authorizing a sale, variously termed “Chapter 11 Sale” or “Bankruptcy Sale” or “Cash Raising Sale”, to be conducted on the premises of the debtor furniture retailer. The controlling question is whether Judicial Code § 959(b), 28 U.S.C. § 959(b), prevents merchants from using bankruptcy as a screen for condu...
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DECISION REGARDING MOTIONS FOR SUMMARY JUDGMENT Under the court’s consideration is the Motion for Summary Judgment filed by the plaintiff, Sovran Bank/DC National (“Sov-ran”); the Motion for Summary Judgment filed by the trustee; and the Cross-Motion for Summary Judgment filed by the Defendants, Joseph Aumiller and the United States. The parties assert that there are no genuine issues...
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ORDER Heard on May 11, 1994, on the Motion for Rehef from Stay filed by creditors Frances G. Cherenzia and Salvatore Cherenzia, III (“Cherenzias”), and the objection' of the Chapter 7 Trustee. The background regarding this dispute may be described briefly as fohows: On September 11, 1991, the Cheren-zias filed an action in the Rhode Island Superior Court against Anthony Giordano seeking, int...
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MEMORANDUM OPINION The matter before the Court is the motion of Knox Metals Corporation (“Knox” or “Defendant”) to dismiss William H. Grabscheid’s (“Plaintiff’ Or “Trustee”) adversary complaint to recover preferential transfers pur *914 suant to 11 U.S.C. §§ 547(b) and 550(a). Knox contends the statute of limitations set forth in § 546(a) 1 forbids the Trustee ...
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MEMORANDUM AND ORDER ON MOTION FOR SUMMARY JUDGMENT This matter comes before the Court on Plaintiffs’ Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment. Based upon the parties’ briefs, the record in the file and the applicable authorities, I make the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT Debtor, Robert Reid Lutz, Jr., and a thi...
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ORDER ON MOTION TO SELL REAL PROPERTY Debtors in each of the above-captioned cases filed Motions to sell certain real property, title to which was vested in the Debtors as of the date their Chapter 13 cases were filed. After a hearing to consider said Motions, it was determined that the real estate should be sold subject to the Court’s determination of whether Debtors were entitled to immedia...
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MEMORANDUM AND ORDER ON OBJECTION TO VALUATION On January 20, 1994, a confirmation hearing was held on Debtor’s Chapter 11 Plan of Reorganization. With the exception of NationsBank of Georgia, NA’s objection to the valuation of its collateral in the Plan, all issues regarding confirmation were resolved at the hearing. I confirmed Debtor’s Plan subject to the objection of NationsBank, ...
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DECISION AND ORDER DETERMINING CLASSIFICATION/SUBORDINATION OF CLAIMS AFTER CONVERSION FROM CHAPTER 11 TO CHAPTER 7 Before the Court are cross motions for summary judgment by the Chapter 7 Trustee, and claimants Robert and Betty Griggs, who are the former officers, directors and shareholders of the Debtor. The present dispute concerns the classification of two claims previously designated as ...
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*793 DECISION AND ORDER DETERMINING DISCHARGEABILITY OF INDEBTEDNESS In these cases challenging the discharge-ability of claims on grounds of fraud, the Debtor contends that the issue is simply one of responsibility. He denies having read documents, including a residential loan application, that bear his signature. He denies having known that the loan broker submitted the res...
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ORDER GRANTING MOTION TO REALIGN PARTIES CAME ON for consideration the foregoing matter. Plaintiff seeks to realign the parties in this litigation, casting the United States as the party plaintiff. Defendant United States objects. As a general rule, trial courts enjoy the discretion to realign parties as necessary, according to their actual interests in the litigation. United States v. Fidelity...
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ORDER ON MOTION FOR APPROVAL OF SETTLEMENT On January 26, 1994, Debtor filed his second amended Motion for Approval of Settlement setting forth that Debtor wished to settle a personal injury lawsuit for a total sum of $65,000.00. Debtor further seeks an order authorizing disbursement of the funds to permit payment of attorney’s fees, ex--penses of litigation, payment to the Debtor and Debtor’...
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MEMORANDUM AND ORDER ON MOTION FOR SEQUESTRATION OF RENTS AND REQUEST FOR ADEQUATE PROTECTION This matter came before the Court on the Motion of California Federal Bank, FSB for Sequestration of Rents and Request for Adequate Protection. On January 12, 1994, a hearing was held on the Motion. Based upon the evidence presented at the hearing, the parties’ briefs, and the applicable auth...
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MEMORANDUM OPINION Debtor Franklin Savings Corporation appears by its attorneys, R. Pete Smith and Jonathan A. Margolies of McDowell, Rice & Smith, Kansas City, Missouri. The Resolution Trust Corporation (“RTC”) appears by its attorneys, Michael J. Belfonte and Erlene W. Krigel of Krigel & Krigel, P.C., Kansas City, Missouri. The Office of Thrift Supervision (“OTS”) appears by its attorneys, Ma...
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OPINION AND ORDER Peoples First National Bank and Trust Company, Hazleton, PA, now by merger, First Eastern Bank, N.A. (hereinafter “Bank”), has filed an objection to the First Amended Chapter 13 Plan of Emil J. Haras-chak (hereinafter “Debtor”), alleging three (3) grounds as follows: (1) Section 1322(b)(2) of the Bankruptcy Code (antimodification provision) prevents the Bank’s secure...
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MEMORANDUM AND ORDER ON CONFIRMATION OF DEBTOR’S CHAPTER 13 PLAN The chapter 13 trustee objects to the confirmation of the debtor’s chapter 13 plan, alleging that the debtor is not eligible for relief under chapter 13. See 11 U.S.C.A. § 109(e) (West 1993). I agree. BACKGROUND The debtor filed a chapter 13 petition on April 23, 1993 (the “Filing Date”). On May 19, 1993...
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MEMORANDUM Before the court is the Trustee’s Objection to Debtors’ Exemptions and the debtors’ Amended Request to be able to receive Exempt Property. Although the Trustee’s Objection appears meritorious under both federal and state law, I conclude that under Taylor v. Freeland & Kronz, — U.S.-, 112 S.Ct. 1644, 118 L.Ed.2d 280 (1992), the Trustee is barred from objecting to ...
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OPINION AND ORDER The parties, Sandra L. Tallo, (hereinafter “Debtor”), and Third National Bank & Trust Company of Scranton, (hereinafter “Bank”), have pending before this court Debtor’s Motion pursuant to 11 U.S.C. § 506 seeking strip down of the Bank’s second mortgage and the Bank’s Motion for Relief from the Automatic Stay. The parties have agreed that our application of the S...
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MEMORANDUM This adversary proceeding was commenced by the Chapter 11 Trustee to recover alleged freight undercharges by the debtor, Best Refrigerated Express, Inc., to the Defendant, Bennett Transportation, Inc. Bennett Transportation, Inc. filed a Motion for Summary Judgment, asserting that it was not liable for any alleged undercharge by the debtor since Bennett Transportation is a small bu...
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DECISION AND ORDER GRANTING PARTIAL SUMMARY JUDGMENT TO DEFENDANT Before the Court are what it deems to be cross-motions for partial summary judgment on the Debtor’s Complaint to Determine the Dischargeability of Certain Student Loans under 11 U.S.C. § 523(a)(8)(A). 1 He asks that the loans be discharged because, he claims, the loans “first became due more than seven years (exclusive of any...
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MEMORANDUM OPINION The Defendants have filed a Motion to Dismiss the Complaint in this adversary proceeding asserting that the two counts in the Plaintiffs Complaint do not contain sufficient allegations to state a claim upon which relief can be granted. Because this Court agrees with the Defendants, the Motion to Dismiss will be granted. Count I of the Complaint alleges that the Debtors fa...
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MEMORANDUM OPINION AND ORDER This is the court’s Opinion on a motion for reconsideration occasioned by the court’s lack of clarity when making a bench ruling and in entering a subsequent order. I. Background TWA and its Unsecured Creditors Committee joined in a motion requesting the court to approve a settlement with the International Association of Machinists and Ae...
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OPINION AND ORDER For the third time in the past seven (7) years, this court has been asked to approve a bulk sale of all of the assets of Blue Coal Corporation and Glen Nan, Inc. (“Blue Coal”). Both of those prior motions met with court approval. See In re Blue Coal Corp., *556 67 B.R. 798 (Bkrtcy.M.D.Pa.1986) and In re Blue Coal Corp., No. 76-1311, No....
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MEMORANDUM OPINION Debtors filed a Motion to Reopen their Chapter 7 ease for the purpose of rescinding a Reaffirmation Agreement with Members America Credit Union (“Members”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, I deny debtors’ Motion to Reopen. ...
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MEMORANDUM Before the court is the question of whether the debtors’ obligations on two credit cards issued by Mercantile Bank of Illinois (“Mercantile Bank”) are dischargeable under § 523(a)(2)(A). I conclude that the debtors’ obligations to Mercantile Bank are not excepted from discharge under § 523(a)(2)(A). LAW Section 523(a)(2)(A) of the Bankruptcy Code provides that a debt will not...
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OPINION AND ORDER Defendant, Hart, Schaffner & Marx, (hereinafter “Defendant”), has filed the instant Motion to Dismiss the above-captioned complaint under Federal Rule of Civil Procedure 12(b)(6) and, in the alternative, a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56, both of which are made applicable to bankruptcy proceedings by the Federal Rules of Bankruptcy Pr...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT This is a second attempt by Greater Jacksonville Transportation Company (Debtor-in-Possession) to reorganize its affairs under Chapter 11 of the Bankruptcy Code. The first Petition for Relief was filed on August 1, 1989. The Debtor-in-Possession filed its Plan of Reorganization and its Disclosure Statement on April 6, 1990. The Disclosure Statement wa...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a yet-to-be confirmed Chapter 11 ease and the matter before the Court is a complaint for injunctive relief filed by the Minnelusa Company (Debtor) against A.G. Andrikopoulos, George A. Seifert, and John and Marjorie Dunn, as Trustees of the Dunn Trust (Defendants), judgment creditors of the Debtor. The facts relevant to resolutio...
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MEMORANDUM OPINION A trial to determine the dischargeability of a credit card debt was.held on April 21,1994. At the conclusion of the hearing, I announced that the debt was dischargeable and awarded debtor attorney’s fees and costs pursuant to 11 U.S.C. § 523(d). The following shall constitute the Court’s Findings of Fact and Conclusion of Law pursuant to Federal Rule of Civil Proced...
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ORDER ON OBJECTION TO ADMINISTRATIVE CLAIM OF LORAL THIS is a confirmed Chapter 11 reorganization case, and the matter under consideration is an Application for Administrative *447Expense, filed by the Committee for the Libraseope Retirement Plan (Loral) and the Objection to its Claim filed by the Debtor. In its Claim, Loral contends it is entitled to an allowance as cost of administration in the...
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MEMORANDUM I. INTRODUCTION Before the Court is a motion for summary judgment filed by the plaintiff, Kathleen A. Hull (the “Debtor” or “Plaintiff’) against the defendant, North Adams Hoosac Savings Bank (the “Bank” or “Defendant”). The motion seeks judgment on that portion of the Debtor’s complaint which seeks • to void a certain mortgage, dated January 5, 1988, from the Debtor to th...
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DECISION ON TRUSTEE’S OBJECTION TO CONFIRMATION CAME ON for consideration the foregoing matter. The debtor’s chapter 13 plan proposes that the trustee’s fee be assessed against each payment made to each creditor — including payments made to two secured creditors, BanePlus Mortgage Corp. (on the homestead arrearages), and Valley National Financial Service (a car payment). 1 ...
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MEMORANDUM DECISION PURSUANT TO § 727(a)(4)(A) OF THE BANKRUPTCY CODE Corning Vitro Corp. (“Corning” or the “Plaintiff’), seeks to deny the Debtor a discharge pursuant to § 727(a)(4)(A) and (A)(5) of the Bankruptcy Code; or, in the alternative, seeks to except from discharge the Debtor’s debt to Corning pursuant to Bankruptcy Code § 523(a)(2)(A). After trial on the merits, this Court find...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a Chapter 7 ease and the matter under consideration is the dischargeability of *443 obligations due and owing by Richard L. Montgomery (Debtor) to his former wife, Marsha Montgomery (Defendant). The Debtor seeks a determination that the two specific obligations imposed on the Debtor by the Divorce Decree are in the form of a ...
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AMENDED MEMORANDUM OPINION Thomas J. O’Neal, the Chapter 7 trustee in this involuntary bankruptcy (the “trustee”), brings an adversary proceeding against Southwest Missouri Bank of Carthage, Missouri (“SMB”), Mercantile Bank of Joplin, Missouri (“Mercantile”) and Richard and Jenny Mansfield (the “Mansfields”). This is a core proceeding under 28 U.S.C. § 157(b)(2)(E) and (F) over which...
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DECISION AND ORDER PRELIMINARY STATEMENT Before the Court 1 is a motion (“Motion”) by Debtor for an order expunging the claim of a creditor, the Federal Deposit Insurance Corporation (“FDIC”). Debtor’s Motion was made pursuant to section 502 of title 11, United States Code (“Bankruptcy Code”) and Rule 3007 of the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). ...
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MEMORANDUM OPINION This matter concerns the Chapter 13 Trustee’s objection to confirmation of a debt- or’s Chapter 13 plan after conversion from Chapter 13 to Chapter 7 and reconversion to Chapter 13. The Court considers whether to reinstate the original plan or require confirmation of a new plan. In the latter event, the Court must consider the length of time available for the debtor to comp...
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OPINION This appeal arises from a bankruptcy court’s order granting summary judgment in favor of the appellee. The appellee had filed a complaint for a determination as to the validity and priority of a deed of trust. The *399 Chapter 7 2 Trustee filed a cross-complaint asserting that the lien could be avoided under § 548(a). Cross motions for summary judgment ...
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MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT After a four day trial in the Superior Court Department of the Trial Court of the Commonwealth of Massachusetts, the Plaintiff, Burton M. Sack, obtained a judgment against the Defendant and Debtor, Robert B. Fried-lander. The court concluded that the Debtor wa...
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MEMORANDUM This ease involves a dispute as to ownership of the proceeds of certificates of deposit in which the debtor is a joint owner. This case is before the court upon Motion by Debtor for Turnover of Property. The debtor requests that the trustee be ordered to turnover and surrender proceeds of jointly owned certificates of deposit to Mr. Donald Betts, the debtor’s father, who was the sole ...
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ORDER DENYING CONFIRMATION Before the Court is the confirmation of the Debtors’ Chapter 13 plan. Comerica Mortgage Real Estate Loans (“Comerica”) filed an objection to confirmation of the Debtors’ plan. After considering arguments of counsel and reviewing the relevant law, the Court is of the opinion that confirmation should be DENIED. This order shall constitute the Court’s findings of fact an...
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168 B.R. 386 (1994) In re Daniel C. HANNA, Debtor. GULL INDUSTRIES, INC., an Oregon corporation, and BP Oil Company, an Ohio corporation, Appellants/Cross-Appellees, v. JOHN MITCHELL, INC., Trustee of the Estate of Daniel C. Hanna and Daniel C. Hanna, Appellees/Cross-Appellants. BAP Nos. OR-92-2283-VMeJ, OR-92-2285-VMeJ. Bankruptcy No. 390-33990-S11. Adv. No. 90-3388S. United States Bankruptcy Ap...
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MEMORANDUM OPINION This matter is before the Court on two adversaries, both captioned as a Complaint To Determine Validity, Extent, And Priority Of Lien pursuant to 11 U.S.C. § 506 filed by plaintiffs Addie Perkins and Jimmy Perkins, Debtors in the above styled cases. These are core matters pursuant to 28 U.S.C. § 157(b)(2)(K). Because of the similarity of facts and legal issues in th...
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OPINION The debtor and his wife received two refund checks, one from a real estate seller and another from an escrow company. The escrow company issued their refund check by mistake. The debtor deposited both checks. The appellee sought imposition of a constructive trust on the debtor’s subsequently purchased home based on the mistaken cheek. The bankruptcy court imposed a constructiv...
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MEMORANDUM OPINION Trial on the plaintiffs complaint to deny discharge pursuant to 11 U.S.C. § 727(a)(2) was held in Alexandria, Virginia, on June 1, 1994. At the conclusion of trial the court announced findings of fact and conclusions of law and ruled in favor of debtor. This opinion supplements the court’s bench ruling. Facts The debtor filed an individual Chapter 7 bankruptcy petition on Ma...
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MEMORANDUM OPINION Trial was held on May 26, 1994, on debtor plaintiffs complaint to enjoin continuation of defendant’s state court action as violative of the automatic stay. The parties stipulated to the facts and presented legal argument at trial. For the reasons stated in this memorandum opinion judgment will be entered for defendant, and the complaint will be dismissed. Fin...
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RULING AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S AMENDED EXEMPTIONS I. ISSUE The issue to be determined by this ruling is whether a Chapter 7 debtor’s exemption of the proceeds from an originally unscheduled prepetition personal injury claim should be allowed when, after the trustee has liquidated the claim, the debtor first amended his exemptions to list such claim. The parties have...
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OPINION A INTRODUCTION The two instant adversary proceedings (“the Proceedings”), permitted to be main- *858 tamed as class actions pursuant to Federal Rule of Bankruptcy Procedure (“F.R.B.P.”) 7023 and Federal Rule of Civil Procedure (“F.R.Civ.P.”) 23(b)(3), represent efforts by the named plaintiffs, on behalf of all former landlords of the Debtors’ stores (...
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This is the court’s decision on the motion to dismiss of the Harris County Appraisal District and the Harris County Appraisal Review Board (HCAD). Harris County has joined in this motion. That motion is denied. I. The Complaint Britt Airways, a wholly-owned subsidiary of Continental Airlines, Inc., filed its Chapter 11 petition in this court on December 3,1990. Two years later...
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*127 MEMORANDUM OPINION The matter before the court is Debtor’s Amended Second Omnibus Objection to Claims. Various claims were resolved by orders of this court dated March 22, 1994, and May 20, 1994. The only remaining issue concerns the priority of certain claims for severance pay arising from the permanent closure and sale of Debtor’s Youngstown, Ohio, plant. See Stipulation of Facts at ...
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MEMORANDUM OPINION Cassady-Pierce Company, Inc. (hereinafter “CP”) has brought a motion for summary judgment on its complaint at Adv. No. 94-2050-BM. Debtor was denied a discharge pursuant to 11 U.S.C. §§ 727(a)(3) and (5) in a previous bankruptcy case. According to CP, debtor should be denied a discharge in the present bankruptcy case for all those debts owed to creditors as of the f...
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MEMORANDUM OF DECISION On May 28, 1994, Northeast Express Regional Airlines, Inc. (hereinafter “Northeast”) and Precision Valley Aviation, Inc. (hereinafter “Precision”) filed for relief under Chapter 11 of the Bankruptcy Code. On June 14,1994, this Court granted a motion to consolidate both of these cases for adminis *259 trative purposes. On June 6, 1994, plaintiffs Nor...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION This adversary proceeding comes before the Court on the complaint of Lawrence H. (“Lawrence”) and Janet M. (“Janet”) Dube to determine the dischargeability of their federal income tax debt. After considering the arguments and evidence presented, the Court enters these Findings of Fact and Conclusions of Law. This is a core procee...
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MEMORANDUM OPINION The issue before the court is whether a Chapter 13 debtor can modify the postpetition interest rate claimed by an overseeured statutory lien creditor without violating 11 U.S.C. §§ 1322(b)(2), 1325(a)(5)(B)® and 506(b). After careful consideration, the issue is determined in the affirmative. I. FACTS Samuel and Alice DeSarno (“Debtors”) defaulted o...
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MEMORANDUM OPINION The matter before the Court is a motion for relief from the automatic stay. For the reasons stated below, the Debtors have 20 days to amend their exemptions. Relief from the automatic stay is denied at this time. If the Debtors are unable to raise a valid exemption, the court will reconsider the motion for relief from stay. I. FACTS The facts in this case are not in d...
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MEMORANDUM DECISION On May 6, 1994, this court entered a decision and order granting the defendant’s motion to dismiss, having found that sovereign immunity had not been waived pursuant to 11 U.S.C. § 106. White v. Department of Health and Human Services, 1994 WL 449442 (Bankr.D.D.C.1994). The plaintiffs have filed a timely Motion for Additional Findings and To Alter or Amend the Judgment p...
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OPINION DENYING DEBTOR’S MOTION TO ADD SPOUSE AS CODEBTOR The debtor Deloach Walker has moved the Court for an order permitting him to add his spouse Gertrude Walker to his voluntary Chapter 7 petition. The case was originally filed on May 3, 1994 and the motion to add the spouse as a codebtor was filed on May 31, 1994. The grounds stated for the motion are that the spouse has no income of her own...
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ORDER Before the Court are the Chapter 11 Trustee’s nunc pro tunc application to employ Peter Scotti and the firm Scotti & Associates (“Scotti”) as Real Estate Broker, and his application for leave to pay Scotti a broker’s commission. For the reasons discussed herein, and based upon the authorities referenced and quoted at length below, both applications are denied. ...
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ORDER MODIFYING AND EXTENDING COLLECTIVE BARGAINING AGREEMENT Heard on June 28, 1994, on the Debtor’s Motion for Order Extending Modification of Collective Bargaining Agreement, and on the objection of the United Food and Commercial Workers’ Union, Local 328 (“the Union”). As background, in our first encounter with this subject matter on October 15, 1993, we ordered: (1) a temporary 15% pay cut ...
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Decision Regarding Trustee’s Objection to Debtors’ Claim of Exemption Before the Court is the Chapter 7 trustee’s objection to debtors’ claimed exemptions. Debtor Robert Lima has a 401(k) Plan from his previous employer, Shaws, with a current balance of $10,000. Co-debtor Brenda Lima has an IRA account with a balance of $9,000. Debtors have $312,888 in unsecured debt mainly resulting from real e...
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MEMORANDUM OPINION This ease is before the Court on remand from the United States District Court, entered April 22, 1993, in which the U.S. District Judge directed the determination by this Court of the following questions: 1.“[WJhether there was any evidence of collusion between First Carolina and the Trustee that would negate First Carolina’s status as a purchaser ‘in good fait...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING MOTION FOR ORDER FIXING TIME WITHIN WHICH ESTATE MUST ASSUME OR REJECT EXECUTORY CONTRACT Came on for hearing on the 4th day of April, 1994, the Motion for Order Fixing Time Within Which Estate Must Assume or Reject Executory Contract (“Motion”), filed by Bobby J. Crowell, James Scott Crowell, and Robert John Crowell, d/b/a Hidden Oaks Estates...
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Memorandum, Decision on Debtor’s Motion to Dismiss Lessor’s Motion for Payment of Administrative Expenses I. INTRODUCTION Grossmont Shopping Center Company, (“Grossmont”), alleges that Bullock’s Properties Corporation, a subsidiary of R.H. Macy & Co., Inc., (“Debtor”), breached a lease for nonresidential real property (the “Lease”) located at the Grossmont Shopping Center in ...
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DECISION This matter was submitted for decision on an agreed statement of facts, memoranda, and oral argument. The sole issue before the court is whether the insolvency limitation set forth in 29 U.S.C. § 1405(b) applies in the circumstances of this case. Agreed Facts and Conclusions of Law I adopt the following agreements of the parties as my findings of fact and, to the extent included in t...
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MEMORANDUM OF DECISION Plaintiff-Debtor Forrest D. Owen (“Owen”) has filed a two-count complaint in which he attempts in Count I to recover costs, attorney’s fees and punitive damages for an alleged violation of the discharge injunction of 11 U.S.C. § 524, and seeks in Count II to avoid an attachment by trustee process. Before the Court today is Defendants’ motion to dismiss that port...
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DECISION This is an adversary proceeding brought by TI Federal Credit Union (“TI”) against Debtor John Carl Delbonis (“Debtor”) to determine the dischargeability of certain loans pursuant to 11 U.S.C. § 523(a)(8). 1 *2 The parties have submitted the issues to the Court for decision on an agreed statement of facts. The debtor has also filed a motion for summary ju...
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RULING AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S EXEMPTION I. ISSUE The issue to be determined by this ruling is whether a Chapter 7 debtor may exempt, under Code § 522(d)(10)(E), $15,000 held in an Individual Retirement Account (IRA), where the IRA was funded by a roll-over of a lump-sum payment made to the debtor by his employer when the employee pension plan terminated. The partie...
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MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS I. ISSUE The plaintiffs, Robert Ingala and Joann Ingala, commenced an action under Code § 523 to determine the dischargeability of an unliquidated claim asserted against the debt- or-defendant, Donald A. Seiarretto. The debtor has moved to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(5), incorpo...
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DECISION ON APPLICATION TO ESTIMATE CLAIM This is a claims estimation proceeding brought on by the creditor, Cofacredit, S.A. [hereinafter “Cofacredit”, “Creditor”, “Plaintiff’, or “Claimant”] to establish the value of its claim against the debtors, Windsor Plumbing Supply Co., Inc., Windsor Showroom, Inc., and Windsor World, Inc. [hereinafter “Debtors” or “Defendants”], a wholesale d...
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OPINION ON MOTION FOR RECONSIDERATION FACTS In 1992, the Fraternal Order of Eagles contracted with debtor Richard Mercer, dba Custom Renovators, for the construction of an addition to the Eagles’ building. The Eagles filed this adversary proceeding to determine the dischargeability of expenses which it incurred in obtaining completion of the contract, after the debtor failed to p...
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This decision addresses the issue of whether the trustee may recover interim compensation paid to the debtors’ former counsel under Bankruptcy Code Sections 330 and 331, 11 U.S.C., due to the administrative insolvency of the estate. Pending before the court is the Motion to Dismiss filed by the Defendant, Alfred Lawrence Toombs (“Toombs”), and the Motion for Summary Judgment filed by the Plaint...
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MEMORANDUM I. INTRODUCTION The matters before the Court for decision are the objections of the Federal Deposit Insurance Corporation, as Liquidating Agent of Capitol Bank and Trust Company (the “FDIC”), and the Resolution Trust Corporation, as the Receiver of New England Federal Savings Association (the “RTC”), to the Second Amended Plan (the “Plan”) filed by the above-referenced deb...
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MEMORANDUM OPINION ON MOTION TO RECONSIDER THE COURT’S ORAL DECISION FACTS IRS filed a claim against Debtor for a gross amount of $72,765.34: $2,570 being secured, $48,845.78 listed as priority taxes, and unsecured of $21,349.56. The claim arises from unpaid payroll taxes generated from Debtor and her ex-husband’s restaurant business. Debtor asserted that she has no *938responsibility for taxe...
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*320 PRELIMINARY STATEMENT Before the Court 1 is a motion (“Motion”) by the Federal Trade Commission (“FTC”) for summary judgment within the Adversary Proceeding it commenced against Debtor. FTC seeks judgment determining that Debt- or’s liability is non-dischargeable for having been procured through false pretenses, false representations or actual fraud. 2 ...
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ORDER DENYING DEBTORS’ MOTION TO AVOID LIEN On April 21, 1994, this contested matter came on for hearing, and thereafter was taken under advisement. Upon consideration of evidence received, of statements and arguments of counsel, and of the record herein, this Court, pursuant to F.R.B.P. 7052 and 9014, finds, concludes, and orders as follows. FINDINGS OF FACT On February...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the objection filed by Federal Land Bank to the Report by Debtors of All Priority Tax Claims Paid Pursuant to Debtors’ Confirmed Plan and Request for Discharge. Clement E. Becker and Marjorie A. Becker (“debtors”) appear by and through their attorney, Jan Hamilton. Federal Land Bank 1 appears by and through its atto...
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MEMORANDUM OPINION This matter was initially brought before the Court by The Official Committee of Unsecured Creditors for the S. Galeski Optical, Co. (“The Committee”), who by order of this Court substituted The S. Galeski Optical Company (“The Debtor”), as plaintiff in the above-referenced adversary proceeding. The Committee asks for summary judgment on its complaint for avoidance a...
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MEMORANDUM The question presented is whether a judgment creditor’s attempted prepetition levy on property of the debtor defeats the Chapter 7 trustee’s hypothetical judgment lien creditor status under 11 U.S.C. § 544(a). 1 The trustee prevails because the creditor’s levy was defective under Tennessee law. The following are findings of fact and conclusions of law. Fed.R.Bank...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the trustee’s Complaint to Determine Secured Status and Avoid Postpetition Transfers, and Objection to Claim. A status hearing was held on March 17,1993, at which time the Honorable James A. Pusateri took the matter under advisement. The parties have agreed to allow the undersigned to rule on this matter based upon the ...
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MEMORANDUM OPINION This matter comes before the Court on the Debtors’ Motion to Redeem Tangible Personal Property filed April 25, 1994. General Motors Acceptance Corporation (GMAC) filed an answer to.the motion, and the Court held a hearing to consider the issues raised by the parties. Having duly considered the motion and the arguments of counsel, the Court finds as follows: Facts The ...
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DECISION and ORDER This matter is before the court on a COMPLAINT filed by the debtor, Vic Bernaechi & Sons, Inc. (“Bernaechi”). On December 10, 1992, the court entered a judgment finding in part that defendant, John G. Loxas (“Loxas”), had a perfected security interest in fixtures, and an unperfected security interest in certain personal property of the estate. Loxas appealed this de...
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DECISION ON MOTIONS FOR AN ORDER OF CONTEMPT PURSUANT TO RULE 9020 AND DISCOVERY SANCTIONS PURSUANT TO RULE 7037 OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE AND CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT. This is an adversary proceeding in which the plaintiffs, Janet Sculler (“Sculler”) and Nagel & Rice, Esqs. (collectively, the “Plaintiffs”) seek to have their claims against the defendan...
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*809 Memorandum of Decision on Defendants’ Motions to Dismiss and for Summary Judgment Before us 1 are summary judgment motions 2 by eight maritime insurers to dismiss the Trust’s complaint on the grounds that the issues presented are, inter alia, nonjusticia-ble, noncore, inadequately pleaded, worthy of abstention, and, according to several forei...
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ORDER DENYING AMENDED MOTION TO EXTEND TIME TO FILE COMPLAINT TO DETERMINE DIS-CHARGEABILITY AND TO OBJECT TO DISCHARGE THIS MATTER is before the Court on the amended motion of Gwyndoline T. Earp and Curtis D. Earp (“creditors”) for an extension of time to file a complaint to determine the dischargeability of certain debts and to object to the Debtor’s discharge. On May 18, 1994, the creditors f...
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ORDER ON OBJECTION TO EXEMPTIONS THIS MATTER is before the court on Motions for Summary Judgment filed by the debtor, and by the Trustee and Genola Shelly, a judgment creditor (collectively the “Objectors”) with respect to objections to the debtor’s homestead exemption claim. The debtor also claims a peanut quota as exempt, to which objections have been filed. Having considered the pl...
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MEMORANDUM OPINION Prince George’s County, Maryland, has filed an Objection to the Confirmation of the Plan of Rehabilitation in this Chapter 13 case. The basis for the objection is that Prince George’s County is the holder of a secured claim which has not been dealt with in the Plan, in violation of the requirements of 11 U.S.C. § 1325. The claim of the County is based upon real esta...
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MEMORANDUM OPINION IN SUPPORT OF ORDER VACATING PARTIAL SUMMARY JUDGMENT In an earlier opinion 1 this Court held that future potential claimants who may assert postconfirmation claims related to aircraft manufactured prepetition by Piper Aircraft Corporation (“Piper” or “Debtor”) do not hold “claims” under § 101(5) of the Bankruptcy Code (the “Code”). In this adversary proc...
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ORDER Debtor filed a voluntary petition on December 15, 1992, and subsequently filed a motion to convert the case from Chapter 11 to Chapter 7 within the next ten days. The motion was granted and a panel trustee was appointed as the Trustee on December 28, 1992. The affairs of K.C. Aerospace, Inc. were inextricably linked to the affairs of Fortune Air, Inc., another corporation which filed bankr...
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*958 MEMORANDUM DECISION Procedural History This matter is before the Court pursuant to the “Motions to Assume Contract to Sell Real Estate Property and Pay Real Estate Commission” and the “Motions for Relief from Automatic Stay” filed by PAUL J. WINTER and JOSEPHINE M. WINTER (hereinafter the ‘Winters”) and MOHAVE REALTY, INC. (hereinafter “Mohave ...
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ORDER By motion filed December 10, 1993 the debtor, Arlinda Arnita Lee seeks to avoid the security interest of her creditor Davis/McGraw, Inc. (“Davis/McGraw”) in certain household goods and furnishings pursuant to 11 U.S.C. § 522(f)(2)(A). 1 The only issue is whether the security interest of Davis/ McGraw is purchase money. Having heard the evidence presented, considered a...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT The issue before the Court1 is the dis-chargeability of a debt. Plaintiff commenced the within Adversary Proceeding by the filing of a complaint with the Court on January 13, 1993. Pursuant to the Adversary Proceeding, Plaintiff seeks judgment determining that a certain debt for money owed by Debtor is non-dischargeable for having been incurred t...
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OPINION A INTRODUCTION Before this court for resolution is a Motion (“the Motion”) of the Internal Revenue Service (“the IRS”) for relief from the automatic stay in order to allow it to levy on the wages of CHARLES A. WEATHERLEY (“the Debtor”) on account of the Debtor’s alleged outstanding indebtedness to the IRS of over $560,000 for income taxes for the tax years from 19...
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MEMORANDUM OPINION INTRODUCTION The chapter 13 Trustee has objected to confirmation of the Debtors’ Chapter 13 plan *888 on the grounds that it does not propose to allocate all of their disposable income to payments under the plan. The Trustee also argues that the plan has not been proposed in good faith and that the case should therefore be dismissed. On the other h...
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MEMORANDUM OPINION This is the court’s decision on a motion by defendant Betty Simon, trustee (hereinafter “Simon”) 1 for summary judgment dismissing a complaint by plaintiffs John and Rita McGrath, the debtors, to avoid a tax foreclosure sale of the debtors’ residence under section 548(a)(2) of title 11, United States Code (the “Code” or “Bankruptcy Code”). This court has jurisdiction unde...
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MEMORANDUM OPINION This matter comes before the court on the debtor’s objection to claim #3 of Gentra Capital Corporation (Gentra), formerly known as RT Capital Corporation and as-signee of Pacific First Bank. BACKGROUND The debtor, Boulders on the River, Inc., is the developer, owner, and operator of an apartment complex in Eugene, Oregon. Pacific First Bank (Bank) provided the...
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Before the Court is the motion of Paragon Enterprises (“Paragon”), to require Cornwall Paper Mills Company (the “Debtor” or “Cornwall”) to pay administrative rents, pursuant to Bankruptcy Code (“the Code”) section 503(b), for the use and occupancy of premises located at 300 Executive Drive, West Orange, New Jersey. . 11 U.S.C. § 503(b). In support of this motion, Paragon has submitted the follo...
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MEMORANDUM ON MOTION FOR EXTENSION OF TIME TO FILE APPEAL The court has before it a “Motion For Extension Of Time To File Appeal Pursuant To Bankruptcy Rule 8002” (Motion For Extension Of Time) filed by George Petrenko (Petrenko) on May 19, 1994. By this Motion For Extension Of Time, Mr. Petrenko requests an extension of the ten-day period fixed by Fed.R.Bankr.P. 8002(a) for filing a ...
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OPINION AND ORDER GRANTING DAMAGES FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY This matter is before the Court upon Troy and Linda Smith’s (the “Smiths”) adversary complaint against GTE North Incorporated (“GTE”) seeking damages for GTE’s alleged willful violation of the automatic stay pursuant to 11 U.S.C. § 362. The Court finds that the Smiths’ complaint is well taken and that the Smith...
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OPINION AND ORDER DENYING DEBTOR’S MOTION TO DISMISS CASE AND GRANTING UNITED STATES TRUSTEE’S MOTION TO CONVERT CASE This matter is before the Court on Continental Holdings, Inc.’s (the “DIP”) motion to dismiss its chapter 11 case to which objections have been filed by the United States Trustee (“UST”), and Fowler Office Products, Inc. The UST has moved to convert the DIP’s chapter 11 ca...
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ORDER On October 31, 1988, Central Arkansas Broadcasting Company, Inc. (debtor) filed a voluntary petition for relief under the provisions of Chapter 11 of the United States Bankruptcy Code. The case was converted to Chapter 7 and James F. Dowden was appointed trustee. On December 11, 1991, the trustee filed a motion for authority to sell assets of the estate at public auction. Among ...
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MEMORANDUM This case involves competing claims between American National Bank, secured creditor of the debtors, and an alleged purchaser of hogs from the debtors as to the proceeds from the sale of approximately 1,704 head of hogs by the trustee in March of 1993 (See Ex. 139g). At trial it was established that the debtors had “sold” a number of the same hogs to more than one party, wi...
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MEMORANDUM OPINION The matter before the Court is plaintiffs’ motion for summary judgment on their complaint filed on December 3, 1993, under the Truth in Lending Act. 15 U.S.C. §§ 1601-1693r (“TILA”). In their complaint, the debtors/plaintiffs, Richard Lynch and Patricia Lynch, seek a determination that they have properly rescinded any security interest held by the defendant, GMAC Mo...
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MEMORANDUM OPINION On May 28, 1991, Hot Shots Burgers & Fries, Inc., (debtor) filed a voluntary petition for relief under the provisions of Chapter 11 of the United States Bankruptcy Code. The case was converted to a proceeding under Chapter 7 and M. Randy Rice was appointed trustee. On November 5, 1991, the trustee, pursuant to court order, sold certain property that was schedul...
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MEMORANDUM OPINION The matter before the Court is an objection to the claim of Pittsburgh National Bank (“PNC”) by Gary and Atleah Grubb (“Debtors”). For the reasons stated below the objection is sustained and the claim of PNC is disallowed. I. FACTS The Debtors filed their petition under Chapter 13 on November 19,1991. As of the date of the filing of the petition, t...
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DECISION AND ORDER DENYING DEMAND FOR JURY TRIAL This is an adversary proceeding filed by David B. Tatge (the “Trustee”), chapter 7 trustee, against the partners and former partners of the debtor partnership, seeking contribution pursuant to Bankruptcy Code Section 723(a) for the deficiency in estate assets to pay the allowed claims of creditors. In his answer, defendant Bramlett asserted a right...
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MEMORANDUM OPINION On October 5, 1992, John Coleridge Schleifer (“Debtor”) obtained a Chapter 7 discharge pursuant to Section 727 of the Bankruptcy Code (Title 11, United States Cpde). Debtor’s case was closed on October 6,1992. Pending before the court is a pro se motion by the debtor to reopen the bankruptcy case to determine the dischargeability of certain debts. For the...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the United States, on behalf of the Small Business Administration (“SBA”), for summary judgment on its Complaint to Determine the Extent, Validity and Priority of Liens and Interest in Property of the Estate. The Court has core jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(E) and 1334. Upon consideration of the p...
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MEMORANDUM OPINION This constitutes the court’s decision on a motion for reconsideration of an order denying an application for extension of time to appeal. The issue presented is whether receipt of an order after the time to file a notice of appeal has expired causes excusable neglect of such time period where the mov-ant knew the court’s decision before the order was entered. The co...
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REVISED FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL OF CLAIMS OF REGENCY SAVINGS BANK, F.S.B. Background The claims of Regency Savings Bank, F.S.B. (“Regency”) that are the subject of these Findings of Fact and Conclusions of Law represent one relatively discrete phase of an epic mass of interrelated litigation, which includes at least 15 other adversary proceedings p...
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MEMORANDUM OPINION The plaintiffs, Michelle Hildebrand and State Farm Insurance Company (“State Farm”), 1 have moved for summary judgment, *295 asking this Court to except their claims from discharge under 11 U.S.C. § 523(a)(9). In response, the debtor, Sharon H. Kugler, has cross-moved for summary judgment. For the reasons that follow, we deny both the plainti...
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ORDER DENYING RENEWED MOTION FOR HEARING ON CHARGING LIEN THIS CAUSE came on before the Court on February 15, 1994 at 3:00 p.m. upon Lyons and Farrar, PA.’s (“L & F”) Renewed Motion for Hearing on Charging Lien (“Motion”). In its Motion, L & F appears to be requesting that the Court enter an Order allowing a charging hen for Stinson, Lyons & Bustamente (“SL & B”). However, in its oral...
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ORDER ON FURTHER HEARING ON EMERGENCY MOTION FOR RELIEF FROM STAY THIS MATTER came on for further hearing on June 17, 1994 at 5:00 p.m. upon the Emergency Motion for Relief from Stay filed by Rolando Gamboa and Eva Gamboa, his wife (“Movants”). BACKGROUND Movants are the owners of the property of which the Debtor and his wife are in possession. 1 The Debtor and his wife are in possessio...
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ORDER Heard on June 22, 1994, on the amended fee application of Jack Pitts, Esq., the Attorney for the Debtor. Mr. Pitts was originally seeking compensation in the amount of $3,917 for services rendered while the case was in Chapter 11. At the hearing, however, when it became apparent that the first request lacked sufficient detail, Mr. Pitts was allowed to submit an amended application. In h...
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DECISION AND ORDER Heard on June 6 and June 7, 1994 on Debtor’s objection to the amended, secured claim of Rhode Island Depositors Economic Protection Corporation (“DEPCO”), in the amount of $98,489. The Debtor objects to the amount of the claim, contending that he made $45,100 in cash payments to Heritage Loan and Investment Company, DEPCO’s predecessor-in-interest, and has signed receipts f...
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EN BANC OPINION DENYING MOTION TO STRIKE FILED BY UNION STATE BANK Union State Bank, a creditor of debtor herein, filed a complaint objecting to debtor’s discharge. The adversary proceeding was filed on April 29, 1994. A pre-trial conference was set for July 12, 1994 and the proceeding was set for trial during the week of July 25, 1994. On June 23, 1994, plaintiff filed a Motion to Str...
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*32 ORDER GRANTING TRUSTEE’S MOTION FOR PARTIAL SUMMARY JUDGMENT Before the Court is the Trustee’s Motion for Summary Judgment in the above referenced adversary proceeding, and the objection of Intervenor, Integrated Properties V, Inc. (“Integrated”). The issue is whether, as a matter of law, Integrated’s alleged equitable interest in the general partnership interest of Donald Goodrich (“Goodric...
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DECISION AND ORDER Heard on April 26, 1994, on the Trustee’s Notice of Intended Sale of a liquor license to a secured creditor, 1 Mendon Realty Associates (“MRA”). The sale, as proposed, would 'convey title to the license to MRA, free and clear of liens, for $3,000. MRA will then be able to sell the license at its market value ($20,000 to $30,000) and to retain all of the proceeds. The Town...
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MEMORANDUM ORDER This matter came on for hearing Tuesday, May 10, 1994 on motion for summary determination by Linda C. Thiesse (“Debtor”) for the allowance of a claimed homestead exemption. Appearances are noted in the record. The Court, having received and considered arguments and memoranda of law of counsel, and being fully advised in the matter, now makes this MEMORANDUM ORDER pursuant to the ...
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MEMORANDUM OPINION AND ORDER On April 21, 1992, the Court conducted a hearing on the Motion to Approve Sale and Motion to Allow Consumer Debt filed by Lisa Jane Brown (“Debtor”). The standing chapter 13 Trustee (“Trustee”) participated in the hearing. Based upon the evidence presented and arguments in support of the Motion presented by Debtor’s counsel and the Trustee, the Court entered an Or...
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DECISION On July 14, 1989, debtors filed a petition for relief under Chapter 7 of the United States Bankruptcy Code. Their scheduled assets included “growing crops” which were given a value, as of the date of the petition, of $14,496.00. On Schedule B-4, they claimed an exemption in “41% of growing crops.” The “value claimed exempt” was placed at $5,950.00, approximately 41% of the sc...
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DECISION AND ORDER Heard on January 20, 1994, on Northeast Savings Bank’s motion for relief from the automatic stay. At the end of the hearing the Court denied Northeast’s request for leave to foreclose, without prejudice, and requested memoranda on the ancillary issue of whether the Debtor’s postpetition payments on the Northeast promissory note should be credited to principal or interest. B...
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MEMORANDUM OF DECISION Plaintiffs’ complaint, brought pursuant to § 523(a)(3)(A) and § 523(a)(3)(B) seeks a determination that Matthew P. Leahy’s (“Le-ahy”) obligations established by State of Maine’s Workers’ Compensation Board de- *12 erees survive his Chapter 7 discharge. The parties have submitted the case for decision on a stipulated record. For the reasons set forth below, I conclude ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Complaint to Determine Dis-chargeability filed on May 2, 1993, by Glenn R. Lindberg and Terry T. Lindberg (“debtors”). A hearing was held on July 12, 1994, at which time the Court took the matter under advisement. The debtors appeared in person and by and through their attorney, William C. Weber. The United States...
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ORDER DENYING TRUSTEE’S MOTION FOR PRELIMINARY INJUNCTION AND DENYING DEFENDANT’S MOTION TO DISMISS COUNT II This is an adversary proceeding in which the Trustee seeks to avoid a series of transfers between the Debtor, Americana Services, Inc. and the Debtor’s principals, Robert and Dottie Dick, and their wholly owned companies, Warehouse Consultants, Inc. and R.D.D. Associates, Inc. ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion by Sage-Dey, Inc. (“SDI”), Sage-Alien Co., Inc. (“SA”) and Addis & Dey’s, Inc. (“AD”) (collectively referred to herein as the “Debtors”) filed January 18,1994, for an order pursuant to § 502(a) of the Bankruptcy Code (11 U.S.C. §§ 101-1330) (“Code”) and Rule 3007 of the Federal Rules...
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MEMORANDUM OPINION FACTUAL BACKGROUND John Donato, Jr., d/b/a Mid Atlantic Industrial Co., filed this chapter 11 case on June 5,1994. The debtor owns and operates fourteen separate commercial real estate properties, and has moved to use the rents derived therefrom as cash collateral. Two secured creditors, Starbare II L.P. and Principal Mutual Life Insurance Company, have entered int...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court considers the motion of the Plaintiff, Herkimer County Trust Company (“HCT”), for summary judgment, filed in the within adversary proceeding, declaring that Mark Swimelar, Esq., in his capacity as Chapter 13 trustee (“Swimelar”) and Randy Sehaal, Esq., in his capacity as Chapter 7 trustee (“Sehaal”) (hereinafter...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court is presented herein with an objection filed by Wesley Carr (“Carr”) pursuant to Rule 4003(b) of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bank.P.”) with respect to certain exemptions claimed by Paul C. and Joyce E. Shurtleff (“Debtors”). The Court also considers Carr’s motion seeking an order terminating the aut...
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MEMORANDUM OPINION Findings of Fact and Conclusions of Law in Support of (I) Granting of Motion to Appoint Chapter 11 Trustee Pursuant to Section 1104 and (II) Denial of Debtor’s Applications to Retain Professionals Introduction This matter having been tried on June 14, 1994 through June 21, 1994 upon, inter alio^ the motion of Caisse Céntrale des Banques Popu...
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OPINION The Debtor seeks confirmation of a Fourth Amended Plan of Reorganization pursuant to 11 U.S.C. § 1129(b). The Debtor is the owner of two real estate projects consisting of an office building known as Concord and a business park known as Dale City. The Concord Property is impressed by a first lien in favor of Minnesota Mutual and the Dale City Property is impressed by a first l...
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MEMORANDUM OPINION AND ORDER INTRODUCTION The issue before the court is whether real estate, which was foreclosed upon prior to filing and which a deed for the property was executed and delivered, but never recorded, is property of the Debtor’s Chapter 13 estate. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§...
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OPINION Debtors Robert and Dawn Short seek to avoid the hen of American General Finance, Inc. (“American”) as a nonpossessory, non-purchase money security interest impairing an exemption claimed by them in household goods. See 11 U.S.C. § 522(f)(2). American objects that its hen is a purchase money security interest not subject to avoidance under § 522(f)(2) and that its hen retained this s...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL This Adversary proceeding relates to debt- or’s Chapter 7 bankruptcy. The creditor/plaintiff Harry Green (“Green”) brought this action to seek non-dischargeability of a judgment debt owed to him by Sidmond J. Pawlinski (“Debtor”). The issue is whether funds advanced by Green for the purpose of entering into limousine and automobile resal...
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MEMORANDUM DECISION On February 18, 1993, the debtor, Brickel Associates, Inc. (“Brickel”), filed for chapter *141 11 bankruptcy. Briekel listed Freight Based Customs Brokers, Inc. (“FBCB”), in its schedules as a creditor holding an unliquidat-ed claim for $15,091.86. While acting as a broker and customs service for Briekel, FBCB paid certain customs duties which were not reimbursed. FBCB fil...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING HEARING ON MOTION FOR FEES UNDER §303 AND SANCTIONS UNDER RULE 9011 (Amended and Reissued July 19, 1994) This action was commenced by filing on October 21, 1983 of an involuntary petition under 11 U.S.C. § 303 against Val Poterek & Sons, Inc. (“Poterek & Sons”), the alleged debtor. On December 8, 1993, this Court dismissed the inv...
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In this chapter 13 proceeding, an unsecured creditor challenges the priority which the Internal Revenue Service claims with respect to income taxes due for the 1988 and 1989 calendar years. At issue is whether the pendency of a prior bankruptcy proceeding served to toll the three year and 240 day priority periods as set forth in 11 U.S.C. § 507(a)(7)(A). John Eysenbach filed his present petitio...
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ORDER Debtors filed a petition for relief under Chapter 7 of the Bankruptcy Code on or about July 21, 1993. Debtors listed approximately 60 creditors, one of which was Beverly Lumber Co., the plaintiff in this adversary action. The address given for Beverly Lumber Co. was listed as 32821 East 8th Street, Kansas City, Missouri 64124. That is not, was not, and never has been the address of Beve...
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MEMORANDUM OPINION Richard Kronz and Sylvia Kronz (the “Kronzes”) have brought a motion requesting that the recently-entered order granting debtor Katherine Romano a general discharge be vacated and that they (and other creditors) be granted a reasonable opportunity to object to her general discharge. According to the Kronzes, the order was “inappropriate under the circumstances”. Debtor, for a ...
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DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Vincent Netherlands Properties, B.V., a corporation organized under the laws of The Netherlands, (the “Defendant”) holds by assignment a security deed on real property owned by Five Star Partners, L.P. (the “Plaintiff’ or “Debtor”) to secure a debt owed to the Defendant. When the Debtor filed this case, the Defendant had yet to comply w...
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OPINION I. Introduction. These two cases come before the court on motions for summary judgment. At issue is the interpretation and application of 11 U.S.C. § 547(c)(4), which defines the circumstances in which a creditor may assert the “new value” defense in a preference action. The first case, Pay ’N Pak Stores, Inc. v. Slide-Co., addresses the issue, as framed by the def...
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ORDER The background for this Order is as follows: On May 8, 1992, Debtors filed a petition for reKef under Chapter 7 of the Bankruptcy Code. The Chapter 7 Trustee filed a report of no distribution, and a discharge was entered on November 23, 1992. On November 9, 1993, Debtors filed a motion to avoid a statutory lien in favor of The United States of America, Internal Revenue Service (“IRS”)...
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DECISION and ORDER This matter is before the court on CITATION FOR CONTEMPT (“Motion”), which was filed on September 14, 1992, by John Lee Penrod and Alyce Jean Penrod against Financial Institutions Liquidation Corporation fik/a Mutual Guaranty Corporation, Successor in Interest to the Clinton County Farm Bureau Cooperative Association Credit Union. The parties filed a Stipulation of ...
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*368 MEMORANDUM GRANTING OBJECTION TO AMENDMENT OF CHAPTER 13 PLAN I.INTRODUCTION: This matter comes before the court on an objection filed by King Frog Rentals to the debtors’ proposal to amend this Chapter 13 plan to add King Frog as a secured creditor. The disputed issue is whether the court should construe two rent-to-own contracts as leases or conditional sales of ...
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RULING AND ORDER ON MOTION FOR RELIEF FROM FINAL ORDER I. ISSUE The matter before the court is a motion filed by Michael Industries, Inc. (Mil) on September 24, 1993, pursuant to Fed. R.Bank.P. 9024 and Fed.R.Civ.P. 60(b)(1), to relieve Mil from a final order the court entered on July 16, 1993. The relief Mil seeks, primarily based on the ground of “excusable neglect,” is that the court vacat...
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MEMORANDUM & ORDER The matter before the court is a Motion for Partial Summary Judgment filed on June 17, 1994, by the defendant, State of North Dakota acting through the North Dakota Tax Department (State), arising from the Complaint filed by the plaintiffs, Richard D. Olson and Jean Olson on September 2,1993, to determine the dischargeability of certain pre-petition tax obligations. The...
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OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT Before the Court is the second objection of Howard Industries, Inc. (“Howard”) to an amended proof of claim filed by the United States of America, Internal Revenue Service, (“IRS”). The Court has held several pretrial conferences regarding this contested matter and commenced a hearing. Following a recess of that hearing the parties agreed that ...
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MEMORANDUM AND DECISION ON APPLICATION FOR AN ORDER RETAINING ATTORNEYS By application dated March 15, 1994 Andrew M. Thaler, Interim Trustee, seeks an order: that the said Interim Trustee be ... authorized to retain Goldman, Horowitz & Cherno, Esqs. as his attorneys in all matters requiring the services of an attorney at law herein under a general retainer; and ... that in ...
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MEMORANDUM DECISION ON MOTIONS FOR SUMMARY JUDGMENT Before the Court are Motions for Summary Judgment filed by both the Debt- or/Plaintiff (“Ragone”) and the Defendant (“USA”). The parties have agreed that this adversary proceeding shall be submitted for decision of the Court on the pleadings. This Court has jurisdiction of this adversary proceeding pursuant to 28 U.S.C. § 1334. Venue is proper ...
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DECISION ON TRUSTEE’S MOTION TO REDUCE DEBTORS’ AUTOMOBILE EXEMPTION TO $2,100 THE MOTION The debtors, husband and wife, each claim a motor vehicle exemption in the amount of *783 $2,400 pursuant to § 282(1) of the New York State Debtor and Creditor Law in the same 1988 Toyota Camry, which is titled solely in the wife, for a total exemption of $4,800. The Chapter...
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RULINGS AND ORDERS ON UNITED STATES’ OBJECTION TO CONFIRMATION OF DEBTOR’S FIRST AMENDED PLAN AND TRUSTEE’S MOTION TO DISMISS CASE I. ISSUE Bankruptcy Code § 1325(a)(3) provides that the court shall confirm a Chapter 13 *497 plan if the plan “has been proposed in good faith....” 11 U.S.C. § 1325(a)(3). Despite the inherent generality and impreciseness of the...
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OPINION ON APPLICATION FOR ATTORNEY’S FEES The debtor’s attorney filed an application for an attorney’s fee of $4,678.50 on March 8, 1994. 1 This case was dismissed on March 1, 1994. 2 The court concludes that it should not consider the fee application under the facts of this case. Unless the court for cause orders otherwise, dismissal of a bankruptcy case re-vests the property of the e...
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OPINION ON OBJECTION TO CLAIMS OF WILLIAM GAUNTT AND AARON ARONOV The Enstar Group, Inc. filed an objection, as amended, to the unsecured claims of William Gauntt and Aaron Aronov. 1 The parties submitted the objection to the court based on briefs and arguments of counsel. The claims arise out of Enstar Group’s alleged obligation to indemnify Gauntt and Aronov from claim...
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DECISION Debtor Alton J. Wilson (“debtor”) has moved to avoid a judicial lien in favor of George S. Wynns (“Wynns”) pursuant to Bankruptcy Code section 522(f)(1). 1 The motion will be denied. I. INTRODUCTION The facts are undisputed. On January 3, 1994, debtor filed a voluntary petition under Chapter 13 of the Bankruptcy Code. At that date, debtor owned an...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This Memorandum Opinion and Order addresses the issue of whether Creditor Phoenix Home Life Mutual Insurance Company is a fully secured creditor. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for th...
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MEMORANDUM DECISION AND ORDER DISMISSING THE COMPLAINT WITH LEAVE TO RE-PLEAD CERTAIN CLAIMS In this adversary proceeding, the Debtors seek to subordinate the secured claim of the defendant, Crossland Federal Savings Bank (“Crossland”), to the claims of all other creditors, 1 and to transfer Crossland’s mortgage to the Debtors’ estates. According to the complaint, Crossland eng...
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MEMORANDUM OPINION This matter comes on to be heard upon the cross motions for summary judgment filed by Larry K. Kelley and Carol N. Kelley (“Debtors”) and the Oklahoma Tax Commission (“OTC”) in regard to the dischargeability of sales taxes owed by Debtors to the OTC for the tax period 1987 to 1988. The parties agree there are no disputed facts and therefore one party is entitled to judgment a...
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MEMORANDUM OPINION The matter before the court is the Motion of Artra Group, Inc. (“Artra”) to Abstain and Remand its First Amended Complaint (“Complaint”) to the Illinois State Court in DuPage County. The above named Defendants contest this motion, asserting that Ar-tra’s Complaint is properly before the court. For the reasons stated below, the court remands Counts I through IV of Artra’...
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ORDER DENYING MOTION FOR MANDATORY ABSTENTION AND REMAND ALTERNATIVELY, FOR DISCRETIONARY ABSTENTION AND REMAND On this day came on for consideration the Motion for Mandatory Abstention and Remand Alternatively, for Discretionary Abstention and Remand (the “Motion”), filed by the Plaintiff, Helen Ruth Manges (“Movant”). Movant seeks mandatory or permissive abstention and remand of this procee...
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MEMORANDUM OPINION The Court has heard Insurance Company of North America’s Complaint seeking a declaratory judgment that a debt owed it on various instruments signed by Alan J. Faden is non-dischargeable as to both of the Debtors, Alan J. and Harriet B. Faden. After consideration of the evidence, the pleadings, and the arguments of counsel, the Court makes the following Findings of F...
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ORDER DENYING OBJECTION TO PRIORITY CLAIM The matter before the court in this chapter 7 case is the trustee’s objection to claims of the Internal Revenue Service. A hearing was held on February 3, 1994, in Raleigh, North Carolina. The objection will be denied with respect to the priority claim, and the objection as to the unsecured claim will be allowed. The chapter 7 debtors, Virgil and Dianne B...
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MEMORANDUM OPINION The Court has heard the Motion to Vacate Confirmation Order of Debtor (Docket No. 547) and the Amended Motion to Vacate Confirmation Order of Debtor (Docket No. 569) filed by Gregory A. Slocum, Mat Willard, George A. Hill, Robert Lloyd Stich, Thomas T. Tucker, Larry Archibald, Otis Jones and Ralph Noack, and after considering the pleadings, evidence, memoranda and a...
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MEMORANDUM OPINION This case comes before the court on debt- or’s motion to avoid Farmer’s Home Administration’s lien on .farming machinery and equipment claimed by the debtor as exempt, pursuant to 11 U.S.C. § 522(f)(2)(B). 1 Also before the court is FmHA’s objection to exemptions claimed by the debtor pursuant to Va.Code Ann. §§ 34-26(7) and 34-27. 2 FmHA con...
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OPINION AND ORDER ON COMPLAINT TO RECOVER PREFERENCE Before the Court is the complaint of Frederick M. Luper, the Chapter 7 Trustee for Carled, Inc., (“Trustee”) to recover an alleged voidable preference from defendant, Columbia Gas of Ohio, Inc. (“Columbia”). This matter was tried to the Court on May 31, 1994. The Court has jurisdiction in this adversary proceeding pursuant to 28 U.S.C. § 1334(...
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MEMORANDUM OF OPINION AND ORDER I. On May 27,1994, this matter came on for a confirmation hearing on the Debtors’ Amended Plan of Reorganization (Plan). Charter One Bank (Charter One) and the Internal Revenue Service (IRS) filed objections to the Amended Plan. The IRS withdrew its objection during the course of the hearing. II. The Debtors are married individuals who ow...
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DECISION, ORDER AND JUDGMENT PRELIMINARY STATEMENT The Court is called upon to determine 1 the debt of Paul Silba (“Debtor”) to Burt Building Material Corporation (“Plaintiff’) non-dischargeable pursuant to section 523(a)(4) of the title 11, United States Code (“Bankruptcy Code”), and Article 3-A of the New York Lien Law. For the reasons set forth below, the Court holds th...
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MEMORANDUM OF OPINION AND ORDER In this Chapter 7 case the U.S. Trustee seeks to have the Court review compensation paid to the law firm of Kahn, Kleinman, Yanowitz & Arnson Co., L.P.A. (KKYA) which serves as counsel for National Magazine Publishing Company (the Debtor). The Debtor filed for voluntary relief under Chapter 7 on March 1, 1994. Pursuant to the requirements of § 329 ...
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MEMORANDUM OPINION The Court has heard the motion of Quality Beverage Company, Inc., Debtor, for Determination of Personal Property Tax Liability. 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 *312 findings of fact, they are hereby adopted as such. Jurisdic...
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MEMORANDUM OPINION ON AMENDED MOTION OF CAPITAL FACTORS FOR FEES AND EXPENSES ON COUNTERCLAIM COUNTS II, III, V, AND VI INTRODUCTION Following bifurcated trial on liability before the Court, Findings of Fact and Conclusions of Law (“Findings and Conclusions”) were made and entered. 158 B.R. 258 (1993). At the same time, orders were entered determining that the Plaintiff-Count...
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*604ORDER APPROVING SETTLEMENT AGREEMENT AND VACATING DECISION PREVIOUSLY PUBLISHED Upon considering the Motion of MAX ROUSE & SONS, INC. (“ROUSE”), for an order from this court decertifying and vacating its Memorandum of Decision dated March 5,1992, which decision was entered on March 11, 1992 and published as In re Specialty Plywood, Inc., 137 B.R. 960 (Bankr.C.D.Cal.1992) [“the Bankruptcy Cour...
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MEMORANDUM OPINION JURISDICTION This court has jurisdiction of this matter pursuant to 28 U.S.C. § 1334(a) (“the district court shall have original and exclusive jurisdiction of all cases under title 11”) and 28 U.S.C. § 1334(d) (“the district court in which a case under title 11 is commenced or is pending shall have exclusive jurisdiction of all the property, wherever locate...
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DECISION AND ORDER In the case of In re Vecchio, 20 F.3d 555 (2d Cir.1994) (decided April 7, 1994), the Second Circuit Court of Appeals held that the bar date for claims set forth in Bankruptcy Rule 3002 is void as to priority claims in a Chapter 7 case because 11 U.S.C. § 726(a)(1) does not distinguish between timely filed priority claims and untimely priority claims. Bec...
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MEMORANDUM & ORDER The plaintiff commenced the above-entitled adversary proceeding by Complaint filed on January 10, 1994, seeking to have an obligation stemming from a monetary judgment entered by a state court in connection with a divorce decree declared nondischargeable pursuant to 11 U.S.C. § 523(a)(5). The matter directly before the court arises by cross motions for summary judgment ...
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MEMORANDUM & ORDER The plaintiff-creditors, Charles Erickson, Karen Erickson, Clay Erickson, and Krisha Erickson (Ericksons), commenced the above-entitled adversary proceeding by Complaint filed on March 3, 1994, seeking a determination that any actual and exemplary damages which ultimately flow from a pending state court action be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(...
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*125 MEMORANDUM OPINION AND ORDER This cause comes before the Court in consideration of the Government’s Motion to Amend Judgment, the Trustee’s Motion to Strike, and the Government’s Opposition to the Trustee’s Motion to Strike. The Court has reviewed the arguments of counsel, relevant statutory and case law, as well as the entire record. Based upon that review and for the following reason...
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OPINION AND ORDER ON COMPLAINT Frederick L. Ransier (“Trustee”), trustee of the chapter 7 bankruptcy estate of Phyllis McFarland (“Debtor”), seeks a declaration of the estate’s interest in certain assets, the avoidance of certain transfers to Dan R. McFarland, the Debtor’s spouse, as fraudulent under state law, and a denial of the Debtor’s discharge. The Court has jurisdiction in...
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OPINION A. INTRODUCTION Presently before this court in the voluntary Chapter 18 ease of KEITH A. WALKER (“the Debtor”), filed on July 6, 1994, is the Debtor’s “Expedited” Motion for Temporary Restraining Order and Injunctive Relief, Contempt, and Sanctions for Violations of the Automatic Stay (“the Motion”). The Motion was filed in response to the participation of certain par...
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*611 OPINION AND ORDER OVERRULING MOTION TO DISMISS FOR LACK OF JURISDICTION, OVERRULING OBJECTION TO PROOF OF CLAIM AND SUSTAINING OBJECTION TO CONFIRMATION This matter is before the Court upon the United States of America’s (“IRS”), on behalf of the Internal Revenue Service, motion to dismiss the chapter 18 case of John and Deborah Camp (the “Debtors”) for lack of jurisdiction....
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OPINION AND ORDER SUSTAINING OBJECTION TO AMENDED PRIORITY PROOF OF CLAIM AND AMENDED SECURED PROOF OF CLAIM OF THE STATE OF MICHIGAN This matter is before the Court upon Freightway Corporation’s (the “DIP”) objection to the State of Michigan, Department of Treasury, Revenue Division’s (the “State”) amended priority proof of claim and amended secured proof of claim. The Court finds that the DIP’S...
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171 B.R. 79 (1994) In re GOLDEN TRIANGLE CAPITAL, INC., Debtor. GOLDEN MORTGAGE FUND # 14, a joint venture, Appellant, v. James KENNEDY, Trustee of Golden Triangle Capital, Inc., Appellee. BAP No. SC-92-1545-AsVO. Bankruptcy No. 91-05063-H7. Adv. No. 91-90441-H7. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted November 17, 1993. Decided July 28, 1994. *80 Jean ...
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*586 OPINION AND ORDER GRANTING MOTION TO STRIKE AND DENYING MOTION TO “APPROVE” PROPOSED MANAGEMENT AGREEMENT AND MANAGEMENT PLAN This matter is before the Court upon Marion Carefree Limited Partnership’s (“MCLP”) motion to “approve” a proposed management agreement and management plan between MCLP and Westminster Management Company (“Manager”) pursuant to 11 U.S.C. § 363 to whic...
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ORDER GRANTING RECONSIDERATION AND VACATING MAY 23, 19W ORDER Before the Court is the motion of Rhode Island Hospital Trust National Bank for reconsideration of our May 23, 1994 Order, wherein we approved a reaffirmation agreement between the Debtor and the Bank, but in a lesser amount than provided in the agreement. Upon consideration of the pleadings and the authorities relied upon therein,...
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DECISION DISMISSING CHAPTER 11 CASE The protagonists in this matter are not strangers to legal fray. Nicholas E. Purpura (“Purpura” or “Debtor”) and Barbara Maida (“Maida”), the Debtor’s former spouse, slugged it out for eight (8) years in a divorce action at various levels of the New York State court system. After exhausting his appellate remedies and still unable to make peace with ...
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OPINION AND ORDER GRANTING MOTION OF COMMONWEALTH CONSTRUCTION CORPORATION, ET AL TO CONVERT CHAPTER 11 CASE TO CHAPTER 7 CASE AND DISMISSING UNITED STATES TRUSTEE’S MOTION TO APPOINT CHAPTER 11 TRUSTEE AS MOOT This matter is before the Court on the motion of Commonwealth Construction Corporation, Merit Plumbing, Inc., Country Construction, Inc., Transtar Electric, Inc., Active Building S...
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MEMORANDUM This matter comes before the Court on the Objection to Exemptions filed by Citizens National Bank [“Citizens”] and by the United States Trustee [“Trustee”]. The Trustee filed an Objection to Exemptions on February 25,1994, and Brief in Support of Objection to Exemptions on April 26, 1994, objecting to the exemption claimed for pre-paid life insurance. The Trustee claims tha...
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MEMORANDUM This matter came before the Court upon the plaintiffs Motion for Summary Judgment against defendants George and Norma Fein-sod and Eugene DeBlasio. The issue before the court is the validity of the deeds of trust from the debtor to the Feinsods and DeBla-sio. For the reasons set forth below, the court concludes that the Feinsod and DeBla-sio deeds of trust lack sufficient d...
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ORDER DENYING OBJECTIONS TO DEBTOR’S HOMESTEAD EXEMPTION The Trustee and various creditors object in part to debtor’s claim of homestead exemption. Upon consideration of evidence received, of statements and arguments of counsel, and of the record herein, the Court, pursuant to F.R.B.P. 9014 and 7052, now finds, concludes and orders as follows. FINDINGS OF FACT Erhan Ozey (“Ozey;” “debto...
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OPINION Background and Facts Margaret Mainardi (“Mainardi”) is an independent licensed paralegal who specializes in preparing divorce kits. Although most of her work is in the area of divorce, Mainardi also offers assistance in preparing Chapter 7 bankruptcy forms; she completes about four sets per year. John Michael Bright (“Debt- or”) hired Mainardi for assistance in completing Chapter 7 ...
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MEMORANDUM OPINION Hearing was held on March 24, 1994, on alleged debtor’s motion for attorney fees following dismissal of the involuntary chapter 7 bankruptcy petition filed by Crestar Bank and joined by Old Point National Bank. Crestar Bank objected to the motion and filed a separate motion to dismiss. The court took the matter under advisement following argument of counsel. For reasons sta...
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170 B.R. 596 (1994) In re Harold George KURTZ, Debtor. Jeanette MONTGOMERY, Plaintiff, v. Harold George KURTZ, Defendant. Bankruptcy No. 93-48388-S. Adv. No. 93-5295-S. United States Bankruptcy Court, E.D. Michigan, Southern Division. August 9, 1994. *597 William Nivan Renwick, Detroit, MI, for plaintiff. Eric H. Clark, Old Redford, MI, for defendant. OPINION DENYING MOTION FOR SUMMARY JUDGMENT ...
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*1020 ORDER Steven Wayne Koeller filed his petition for rehabilitation under Chapter 13 on December 17, 1991. He converted to Chapter 7 on November 1, 1993. Among the assets he listed was a rental house at 6200 South Wal-rond, Kansas City, Missouri. The Chapter 7 Trustee and the first lien holder initially felt there was value in this property, but subsequently the Trustee re...
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OPINION AND ORDER ALLOWING RICKETTS & ONDA’S APPLICATION FOR INTERIM PROFESSIONAL FEES AND EXPENSE This matter is before the Court upon Rick-etts & Onda’s (“R & 0”) interim application for compensation and reimbursement of expenses as counsel for Marion Carefree Limited Partnership (“MCLP”). The United States Trustee has objected to the allowance of certain professional fees and the reimbursement...
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MEMORANDUM DECISION ON MOTION OF THE UNITED STATES OF AMERICA FOR LEAVE TO FILE THIRD AMENDED CLAIM AND FOR ALLOWANCE OF CLAIM, AND RESPONSE TO TRUSTEE’S CLAIMS RECOMMENDATIONS. CAME ON for consideration in the above styled case the motion of the United States of America on behalf of the Internal Revenue Service (“IRS”) for leave to file a third amended proof of claim and for an order...
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DECISION AND ORDER Heard on November 23,1998, on the applications of: (1) Jack Pitts, attorney for the Debtor, requesting $23,051 in fees and expenses; (2) Mardo & LaChapelle, accountants for the Debtor, in the amount of $12,-209; and (3) Kenneth S. Goldworm, Esq., the State Court Receiver, requesting fees and expenses of $5,321. BACKGROUND Alcon Corporation filed its Ch...
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PARTIAL ADJUDICATION ■A FINDINGS OF FACT 1. MELISSA N. JOYNER (“the Debt- or”) filed a Chapter 7 bankruptcy case on March 31, 1994. 2. On June 15, 1994, STEVENS INSTITUTE OF TECHNOLOGY (“Stevens”) filed the instant adversarial proceeding seeking to obtain a determination that an alleged indebtedness to it of $10,456.24 was nondis-chargeable pursuant to 11 U.S.C. § 523(a)(8). 3. On Aug...
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*66 ORDER DENYING DEBTOR’S REQUEST FOR TRIAL BY JURY This matter comes before the Court upon the request of the alleged Debtor, John S. McNaughton, for a Trial by Jury. An involuntary petition under 11 U.S.C. § 303 was filed against the alleged Debtor on July 18, 1994 by Rubins, Ease, Rubins, Cambiano & Bryant (Rubins). According to the petition, the alleged Debtor owes Rubin...
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MEMORANDUM DECISION The matter before the Court is a Complaint to Determine the Validity, Priority and Extent of Lien filed by Yankton, South Dakota, Attorney Douglas R. Kettering on behalf of Plaintiff Farm Credit Services [hereinafter “FCS”] and answered by Yankton, South Dakota, Attorney John Har-melink on behalf of Defendant Debtors [hereinafter “Debtors”]. The underlying issue is...
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ORDER This matter is before the Court on remand from the Ninth Circuit Court of Appeals directing the Bankruptcy Court to determine the damages of Mercedes-Benz Credit Corp. (“MBCC”) due to rejection of an unexpired lease “under the terms of the lease’s liquidated damages clause as interpreted by Washington law.” The Ninth Circuit held: The lease was merely breached, not rescinded or...
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MEMORANDUM OF OPINION AND DECISION Before the Court is Debtor, George R. Lamb’s Motion for an order directing Cashel-mara Condominium Association (Cashelmara) to show cause why they should not be held in contempt of his discharge order to which Cashelmara filed a Brief and Supplemental Brief in opposition. A January 25, 1994 order granted Debtor’s motion to reopen his Chapter 7 case to permit...
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MEMORANDUM DECISION GRANTING MOTION FOR RELIEF FROM AUTOMATIC STAY The Debtor’s landlord seeks relief from the automatic stay to continue pre-petition eviction proceedings commenced against the Debtor in the Civil Court of New York. While the parties’ submissions raise interesting questions of law as to whether the landlord can evict the Debtor — at least under the existing warrant of evi...
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MEMORANDUM OPINION The matter before the Court is the confirmation of debtor’s chapter 13 plan and the objection of Andover Bank (“Andover”), a secured and unsecured creditor, to confirmation. For the reasons set out below, the Court denies confirmation of the debtor’s chapter 13 plan. On December 23, 1993, the debtor filed a petition under chapter 13 of the Bankruptcy Code. The events lead...
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MEMORANDUM OF DECISION This case is before the court for confirmation of Mary Lewis’ Chapter 13 plan. Because of the recurring nature of the issue presented, 1 the Bankruptcy Bar Association for the District of Maryland (“BBA”) was invited to select persons to file amicus curiae briefs. An amicus brief was filed by James M. Hoffman, Esquire, and Gregory P. Johnson, Esquire, at the request...
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MEMORANDUM OPINION The Kansas Economic Development Revenue Bond Act 1 empowers a city “to issue revenue bonds, the proceeds of which shall be used for the purpose of paying all or part of the cost of purchasing ... facilities for ... commercial development” 2 and “to enter into leases or lease-purchase agreements with any person, firm or corporation for such faci...
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MEMORANDUM OPINION AND ORDER The Columbia Gas Transmission Company (TCo) moves this court for an order approving a settlement of TCo’s 1990 rate case before the Federal Energy Regulatory Commission (the settlement motion). TCo’s customers, various state agencies, and the cities of Charlottesville and Richmond in Virginia support the motion. Opposed to the motion are the United States ...
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This is the court’s decision on whether Lucas Aerospace (Lucas) is entitled to an enlargement of time pursuant to Fed. R.Bankr.P. 9006(b)(1). This adversary proceeding was precipitated by the refusal of Continental Airlines, Inc. (Debtors) to consider a reclamation claim made by Lucas under 11 U.S.C. § 546(e) and U.C.C. § 2-207. In an order dated October 24, 1991, this court approved of uniform pr...
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This is the court’s decision on the motion of Bill’s Dollar Stores, Inc. (BDS) for reargument on the motion of New Orleans Printing Service, Inc. (NOPS) to transfer venue of this adversary proceeding. I.The Prior Proceedings NOPS filed its venue motion and opening brief in this adversary proceeding on May 16, 1994. That brief contained an affidavit of Dennis M. LaBorde, Esquire, Louisiana counse...
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MEMORANDUM OPINION In his capacity as former Chapter 7 trustee, Sherman B. Lubman (“The Trustee”) brings this matter before the Court on a motion to reopen the Chapter 7 case of D. Kenneth Winebrenner and Maruta Wine-brenner (“The Debtors”). Upon consideration of the motion, response to the motion, arguments of counsel, evidence presented at the February 10, 1994 hearing, and briefs submitted...
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MEMORANDUM OPINION AND ORDER RE APPLICATION OF FIRST TENNESSEE BANK NATIONAL ASSOCIATION PURSUANT TO 11 U.S.C. § 506(B) AND OBJECTIONS THERETO This core proceeding 1 came on for hearing on the application of First Tennessee National Association (“First Tennessee”) seeking payment of certain fees and expenses in the amount of $28,715.67 pursuant to its secured claim. The Court has jurisdiction...
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MEMORANDUM OPINION Debtor has objected to an amended proof of claim submitted after the bar date by Victor Liberatore, d/b/a Terra Erie Associates (hereinafter “Terra”). According to debtor, Terra’s claim should be disallowed because it is time-barred and because the amounts sought by Terra are not provided for by the terms of a lease agreement between the parties. Terra denies that its claim i...
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OPINION Debtor, Charles Simon, was injured on the job on February 28, 1984, while working for Missouri Pacific Railroad Company (hereafter “Missouri Pacific” or “railroad”). Subsequently, on January 6, 1987, Mr. Simon and Missouri Pacific entered into a Release and Settlement Agreement (hereafter “Agreement”) pursuant to which the railroad agreed to pay Mr. Simon, or his estate upon h...
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MEMORANDUM OPINION AND ORDER REGARDING APPROPRIATE VALUATION STANDARD FOR REDEMPTION Emma Marie Penick (“Debtor”) filed her voluntary Chapter 7 petition on March 8, 1994. On April 25, 1994 the Debtor filed her motion to redeem a 1989 Geo Spectrum on which General Motors Acceptance Corporation (GMAC) is owed $4,465.07. Debtor claims that the vehicle is only worth $800 and seeks to redeem i...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER came on for consideration upon the Motion for Summary Judgment filed by the Plaintiff/Debtor, and Cross-Motion for Summary Judgment filed by the United States of America in the above captioned case. This Court has considered all arguments and evidence consistent with a ruling on a motion for summary judgment. See Celotex v. Catrett, ...
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*367 Memorandum of Decision I. Introduction Hessinger & Associates is supposedly a law firm. It is in fact an interstate business controlled nationally by Earl Cook and locally by David Hansen, neither of whom are lawyers. Joseph Hessinger is supposedly the owner of the firm. He is in fact the front man for Cook and Hansen. The business practices of Hessinger & Associat...
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FINAL ADJUDICATION/MEMORANDUM A. DISCUSSION In an Order dated August 10, 1994, this court determined that the student loan obligation of MELISSA N. JOYNER, the Debt- or-Defendant in this proceeding (“the Debt- or”), was not dischargeable in accordance with § 523(a)(8)(B), because the Debtor was not entitled to relief pursuant to the “undue hardship” exception to that provisio...
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MEMORANDUM OF OPINION ON EXEMPTION This case calls for a determination of the validity of exemptions claimed in a Chapter 7 *583 ease. Billy R. Cate and his wife, Betty A. Cate, (Debtors) filed for relief under Chapter 7 of the United States Bankruptcy Code on December 30, 1993. On April 8, 1994, Debtors filed an amended Schedule C — Property Claimed as Exempt and claimed thei...
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In the present proceeding the Court is asked (1) whether certain leases of real estate were duly terminated according to their terms before the filing of the Debtor/tenant’s Chapter 11 Petition, and (2) if they were so terminated, what are the legal consequences thereof relative to the Chapter 11 reorganization effort. The Court is of the view that since “termination” of a lease has no meaning ...
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MEMORANDUM OPINION On April 27, 1994, the court held a continued healing on the motion of Debtor to modify his confirmed Chapter 13 plan and the objections of certain creditors thereto. This memorandum opinion concerns the objection of the Internal Revenue Service (hereinafter the “IRS”), a classified unsecured creditor of Debtor. The parties have stipulated that there are no disputed...
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AMENDED ABSTRACT OF BENCH RULING ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Big Yank Corporation (“Big Yank” or “Debtor”) seeks to avoid Bank One, Lexington N.A.’s (“Bank One”) alleged interest under a certain mortgage (the “Mortgage”) in the Debtor’s Lexington, Kentucky warehouse and distribution center (the “Property”). Bank One, within ninety days prior to the filing of the Debtor’s chapter 11 pe...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This case concerns the appropriate interest rate to be applied on a fully secured claim under a Chapter 13 plan. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United States District Court for the Eastern District of Missouri. This is a “core proc...
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*148 ORDER MODIFYING THE AUTOMATIC STAY This case is before the Court on Trafalgar House, Inc.’s Motion for Relief from Stay (Doc. No. 49, filed on April 12, 1994). The Court conducted a hearing on April 29, 1994, and after receiving evidence and the testimony of witnesses, the Court reserved ruling on the matter. Following the hearing, the parties submitted memoranda which contained proposed fi...
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DECISION ON MOTION FOR SUMMARY JUDGMENT This matter is before this Court pursuant to an adversary proceeding commenced by the Official Committee of Unsecured Creditors of Interstate Cigar Co. (the “Committee,” or “Plaintiff’) seeking to recover certain accounts receivable from the Defendants, Sidney, Joel, and Gary Spielfogel (the “Defendants”). The Defendants have made a motion for summary jud...
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MEMORANDUM OPINION Pending before the Court is the May 24, 1994 Objection to Confirmation by Secured Creditor First State Bank of Huntsville (“FSBH”) to the debtors’, James Paul Leach and Cynthia Leach (“Debtors”), Chapter 13 bankruptcy plan. I. JURISDICTION This Court has jurisdiction over this pending matter pursuant to 28 U.S.C. § 1334. Further, the above proceeding is a core proceed...
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171 B.R. 321 (1994) In re Anna M. BUTLER, Debtor. Anna M. BUTLER, Plaintiff, v. William LEJCAR, Defendant. Bankruptcy No. 94 B 09039. Adv. No. 94 A 00880. United States Bankruptcy Court, N.D. Illinois, Eastern Division. August 16, 1994. *322 Marshall A. Levin, Chicago, IL, for debtor/plaintiff. Jonathan L. Smith, Balin Smith and Associates, Chicago, IL, for defendant. MEMORANDUM OPINION JACK B. ...
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OPINION This proceeding is before the Court on Plaintiffs two-count complaint seeking to except from discharge a money judgment entered in state court on September 10, 1993, for attorney’s fees and costs in the amount of $6,765.00, plus interest. See 11 U.S.C. § 523(a)(6). The Court conducted a trial on April 28, 1994, and upon review of the evidence presented and the parties’ memoranda, enters...
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170 B.R. 984 (1994) In re BLOOMINGDALE PARTNERS, an Illinois limited partnership, Debtor. Bankruptcy No. 91 B 11678. United States Bankruptcy Court, N.D. Illinois, Eastern Division. August 15, 1994. *985 *986 Douglas J. Lipke, Robert J. Patton, Vedder, Price, Kaufman & Kammholz, Norman B. Berger, James T. Markus, James L. Lucari, Holleb & Coff, Chicago, IL, for debtor. Philip V. Martino, ...
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OPINION This case is before the Court on Snap On Credit’s Motion for Relief from the Automatic Stay, filed on April 28, 1994. The Court conducted a hearing on May 23, 1994, and upon review of the evidence presented and the parties’ memoranda, enters the following findings of fact and conclusions of law. Fed. R.Bankr.P. 7052. The Court has jurisdiction pursuant to 28 U.S.C. § 1334. FINDINGS ...
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*901 MEMORANDUM OPINION AND ORDER INTRODUCTION The issue in this case is whether the Debt- or can modify the rights of a junior mortgage holder pursuant to § 1322(b)(2), when the junior mortgagee’s claim is totally unsecured. JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the United State...
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MEMORANDUM DECISION GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Abraham Sokol (“Sokol”) filed a voluntary Chapter 7 petition on January 13, 1994. On April 22, 1994, the State of New York (“State”) commenced an adversary proceeding under 11 U.S.C. § 523 to determine the dischargeability of a debt up to $5 million that Sokol allegedly owes to the State stemming from a state court convi...
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OPINION The Chapter 13 trustee objects to confirmation of the debtor’s amended Chapter 13 plan on the ground that it improperly discriminates between unsecured creditors in violation of 11 U.S.C. § 1322(b)(1). Specifically, the trustee objects that the plan provides for 100% payment to one unsecured creditor, United Missouri Bank (“Bank”), while providing less than 100% payment to other unsec...
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MEMORANDUM OPINION DISMISSING CASE WITHOUT PREJUDICE Background This matter is before the Court upon remand to this Court for the narrow purpose of determining whether the debtor’s action in the case resulted in unreasonable delay in the distribution of assets for this ease and if so whether this chapter 7 case should be dismissed with or without prejudice. On February 1, 199...
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MEMORANDUM OPINION This matter comes before the court on Debtors’ Motion for Partial Summary Judgment on the Claim of Cathie Carbajal. Debtors’ primary contention on this motion for summary judgment is that several of Carbajal’s claims are barred by statutes of limitation. This court, however, lacks jurisdiction to decide the limitations issues presented. Therefore, the motion for partial...
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MEMORANDUM OPINION GRANTING PLAINTIFF’S MOTION TO LIFT STAY AND FINDING THE DEBT NON-DISCHARGEABLE PURSUANT TO 11 U.S.C. § 523(a)(6) This matter is before the Court on Plaintiffs’ Motion to Lift Automatic Stay regarding the execution on a default judgment which was obtained in Berrien County Circuit Court on September 28, 1993. On November 25, 1992 this Court granted the Plaintiffs’ M...
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ORDER FOR PAYMENT OF FEES AND EXPENSES On June 9, 1994, the Court conducted a hearing on the application for fees and final *293 report and account filed in this estate. This Order reflects the Court’s determination based upon the hearing and based upon its independent review of the bankruptcy file, and final report and account. At the hearing, the Court questioned T...
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MEMORANDUM OPINION AND ORDER ON FIRST APPLICATION OF BE-NESCH, FRIEDLANDER, COPLAN & ARONOFF FOR ALLOWANCE OF INTERIM COMPENSATION AND REIMBURSEMENT ÓF EXPENSES AS COUNSEL FOR THE DEBTOR FOR THE PERIOD MAY I, 1993, THROUGH MARCH 31, 1991 On November 10, 1993, Decor Corporation dba The Art Works and dba The Picture Show, an Ohio Corporation (“Debtor”) filed a voluntary petition for reo...
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PRELIMINARY DECISION ON MOTION FOR RELIEF FROM STAY Haymarket Cooperative Bank (“Haymark-et”) seeks relief from the automatic stay so that it may foreclose on property mortgaged to it by Debtor. At the preliminary hearing it was agreed that I would first determine the efficacy of the waiver granted by Debtor to Haymarket pre-petition, as that issue may be determinative. If it should p...
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DECISION ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION Donald J. Orkin (“debtor”) was the sole proprietor of a real estate business. On June 22, 1992, he established the Donald J. Orkin Retirement Plan (the “Plan”). In the same month he transferred $271,000 into the Plan, representing the proceeds of an individual retirement account (“IRA”). Under the terms of the Plan, debtor...
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SUMMARY ORDER: OFFICIAL RETIREES’ COMMITTEE FEE AND EXPENSE APPLICATION The Official Retirees’ Committee has filed an application for allowance of administrative expenses pursuant to section 503(b)(4), a first application for interim allowance of compensation and reimbursement of expenses by counsel for the Retirees’ Committee, and a second application for interim allowance of compensation and re...
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MEMORANDUM OF DECISION AND ORDER ON OBJECTION TO CONFIRMATION OF CHARTER IS PLAN I. The matter before the court is the confirmation of a Chapter 13 plan to which The *501 Dime Savings Bank of New York, FSB (“Dime”), the holder of a first mortgage on the debtor’s residence, has filed an objection. The issue for decision, submitted by way of a stipulation of facts and the parties’ memoran...
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MEMORANDUM This Chapter 11 case is before the court for a determination of whether certain unpaid attorney fees previously awarded to the debtor-in-possession for his legal representation of Chapter 13 debtors are the property of his bankruptcy estate or whether they are excepted from that category by 11 U.S.C. § 541(a)(6) as “earnings from services performed by an individual debtor after the c...
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MEMORANDUM OPINION AND ORDER ON MOTION TO RECONSIDER DEBTOR’S APPLICATION TO EMPLOY BENESCH, FRIEDLANDER, COPLAN & ARONOFF AS ITS GENERAL ATTORNEYS On November 10, 1993, Decor Corporation dba The Art Works and dba The Picture Show, an Ohio corporation (“Debtor”) filed a voluntary petition for reorganization under chapter 11 of the United States Bankruptcy Code. The Debtor is engaged i...
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ORDER Before the court is plaintiff’s motion to amend complaint. In the original complaint, plaintiff seeks to avoid and recover preferential transfers in the amount of $198,597.08. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(F). The court will grant plaintiffs motion. FACTS On February 13, 1992, National Steel Service Center, Inc. (“NSSC”) filed f...
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OPINION A secured creditor filed a motion for relief from the automatic stay under § 362(d)(1) and (2). 2 Since there was no equity in the property and the debtor’s plan was uncon-firmable as a matter of law, the bankruptcy court granted the motion for relief under § 362(d)(2). The debtor appeals. We AFFIRM. I. FACTS The debtor/appellant, Sun Valley Newspaper, Inc...
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MEMORANDUM ORDER GRANTING BANK TV OLATHE, N.A.’s APPLICATION FOR ALLOWANCE OF FEES, COSTS AND CHARGES ON OVERSE-CURED DEBT This matter is before the Court on the application for allowance of fees, costs and charges on overseeured debt filed by Bank IV Olathe, N.A. (Bank) pursuant to the provisions of 11 U.S.C. § 506(b). FACTS On October 18, 1991, the Bank initiated litigatio...
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OPINION Richard Bracey (“Bracey”), a former chapter 7 debtor, appeals an order of the bankruptcy court holding that the appellee, the California Franchise Tax Board (“FTB”) did not violate the discharge injunction provisions of section 524 by attempting to collect delinquent prepetition taxes. The issue centers on whether the taxes were discharged in Braeey’s chapter 7 case. For the r...
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173 B.R. 777 (1994) In re Leonard HAIMES, Debtor. UNITED STATES of America, Plaintiff, v. Leonard HAIMES, Defendant. Bankruptcy No. 90-39632-BKC-RAM. Adv. No. 91-0242-BKC-RAM-A. United States Bankruptcy Court, S.D. Florida. August 12, 1994. *778 Lance H Baker, Ft. Lauderdale, FL. Douglass E. Wendel, Palm Beach, FL. MEMORANDUM OPINION JAMES G. MIXON, Bankruptcy Judge. On December 21, 1990, Leonar...
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MEMORANDUM OPINION This matter is before the Court on Motion for Surrender of Non-Residential Property filed by William Bradley (“Movant”). This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(E). After conducting a hearing, the Court finds that Movant is entitled to relief under 11 U.S.C. § 365(d)(4). These findings of fact and conclusions of law are published in compliance with Fed.R.Ban...
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MEMORANDUM AND OPINION SEEKING TO MODIFY PLAN AND PROVIDE FOR IRS CLAIM This cause came to be heard on the timely filed motion of the United States of America, a creditor acting through the Internal Revenue Service (“IRS”), seeking modification of the Debtor’s1 confirmed chapter 13 plan. This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 157(b)(1) and 1334. Moreover, the Court fin...
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MEMORANDUM OPINION ON COMPLAINT TO REVOKE ORDER OF CONFIRMATION AND ON MOTION TO CONVERT OR DISMISS CASE The plaintiff, First Union National Bank of Florida (“First Union”), as trustee of Florida Housing Finance Agency Multi-Family Guaranteed Mortgage Revenue Bonds, 1989 Series H (the “bonds”), for the apartment property known as Lakeside North at Alta-monte Mall (“Lakeside”), filed this ...
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MEMORANDUM OPINION A motion for stay relief was filed by Cynthia Edwards Fullwood (“Movant”) against the debtor, Jimmy Alvin Fullwood, Sr. (“Debtor”). The motion seeks authority to allow Movant to pursue Debtor in a state court contempt action arising out of a domestic relations judgment. After considering evidence presented at a hearing on July 15, 1994, and arguments of counsel, the Court d...
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ORDER DISMISSING CASE INTRODUCTION The Debtor built the Amherst Post Office in Amherst, Massachusetts under contract with the United States Postal Service. On September 13, 1991, the Chapter 7 Trustee, Roger Brown, filed this adversary proceeding against the Postal Service, alleging breach of contract as the result of failure to pay all amounts alleged to be owed by the Debtor. The Summons and Co...
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MEMORANDUM OPINION AND ORDER The above-styled adversary proceedings under 11 U.S.C. § 727(a) were consolidated for trial. Trial was held on July 11, 12, 13 and 19, 1994. At trial, the following parties and attorneys appeared: Joseph Q. Adams, Trustee, and his attorney Steven J. Adams; Margaret Keeling, plaintiff, and her attorney Phyllis A. Dewitt; Steven K. Balman, attorney for plain...
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ORDER I. INTRODUCTION This ease involves the adequacy of a Chapter 7 Debtor’s attorney’s fee disclosures, the reasonableness of the fees charged and the question whether a Chapter 7 Debtor’s pre-petition obligation to make post-petition installment payments for pre-petition legal work is discharged. All of these matters are before the court pursuant to an order to show cause directed...
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DECISION ON DEBTOR’S MOTIONS TO AVOID LIEN This case came on for hearing on April 12, 1994, of the motions of the debtor to avoid a hen of the creditor, John D. Fernandez, P.A. (Documents Nos. 18 and 19). The motions present an unusual twist on homestead judicial hen avoidance in Florida in circumstances where tenants by the entireties become tenants in common and then one co-tenant conveys h...
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OPINION AND ORDER On January 18, 1994, the United States Trustee’s Office filed a Motion to Dismiss the above-captioned Chapter Eleven case. The stated reasons for dismissal allege (1) a failure to file timely monthly reports pursuant to 11 U.S.C. § 704(8) which failure causes an inability of the Trustee to supervise the administration of the .case as required by 28 U.S.C. § 586; (2) ...
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*563 OPINION AND ORDER By Stipulation of Facts, the Defendants, Berkheimer Associates and Central Tax Bureau of Pennsylvania, have raised the issue of whether an occupation tax and a related millage tax owed by the Debtors to the above-named Defendants are excepted from discharge. Since the millage tax is computed by relation to the occupation tax, it has been stipulated betw...
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MEMORANDUM OPINION On May 9, 1994 came on to be heard the motion of T.F. Stone Companies, Inc., a reorganized debtor (“Debtor” or “Plaintiff”) for summary judgment and the cross motion for summary judgment filed by Lucy Harper, County Treasurer of Bryan County, Oklahoma (“Bryan County” or “Defendant”). Pursuant to Bankr.R. 7052, the following are the Court’s findings of fact and concl...
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DECISION The Plaintiff, Citibank, N.A. (hereinafter “Citibank”), commenced an adversary proceeding against the debtor/defendant, Claude Emery (hereinafter “Debtor/Defendant”), to revoke the Debtor/Defendant’s discharge pursuant to 11 U.S.C. § 727(d)(1) and Bankruptcy Rules 7001(1) and (4), on the grounds that the Debtor/Defendant procured his discharge through fraud. (Fed.R.Bankr.P. i...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court sua sponte upon a Motion for Dismissal pursuant to 11 U.S.C. § 707(b). At the Hearing, the Parties were afforded the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The record remained open pending submission of Amended Schedules I and J by Debtors and remarks from t...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon the Court’s own Motion for Hearing pursuant to Dismissal of this case under the provision of 11 U.S.C. § 707(b). This Court has reviewed the arguments of counsel, exhibits as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that the Motion for Hearing pursuant to...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Plaintiffs Motion for Summary Judgment, Memorandum in Support, and Defendant’s Answer to Motion for Summary Judgment. The Court has reviewed the written arguments of Counsel, transcripts, supporting exhibits, as well as the entire record in the case. Based upon that review, and for the following reasons, the Plaintiffs Motion...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon the Motions for Summary Judgment filed by the Defendant and Plaintiff. The Court has reviewed the written arguments of Counsel, supporting memoranda, and exhibits, as well as the entire record in the case. Based upon that review, and for the following reasons, this Court finds that the Plaintiffs Motion for Summary Judgment s...
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MEMORANDUM ORDER GRANTING MOTION FOR RELIEF FROM AUTOMATIC STAY The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Hennepin County Support and Collection Services (“Hennepin County”) for an order granting relief from the automatic stay. Appearances were as follows: Thomas Aarestad for Hen-nepin County; and Darrel Baska for...
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DECISION ON OBJECTION TO CLAIMED EXEMPTIONS Richard E. O’Connell, Esq., the Chapter 7 Trustee (hereinafter “Trustee”) filed an objection to the claim of Robert L. Taft (hereinafter “Debtor”), of an exemption of $55,000 in his Simplified Employee Pension (hereinafter “TCC SEP”) and $3,400 in the Debtor’s Individual Retirement Account (hereinafter “TCC IRA”). Since the Debtor did not op...
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MEMORANDUM OPINION REGARDING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT Came on for hearing on the 16th day of August, 1994, the Plaintiffs Motion for Summary Judgment, filed July 22, 1994 (“Motion”). The Motion was fully briefed and argued by the parties’ counsel at the hearing. Background The above-captioned adversary proceeding seeks the Court’s determination tha...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court sua sponte upon a Motion for Hearing pursuant to Dismissal of this Case under the provision of 11 U.S.C. § 707(b). This Court has reviewed the arguments of Counsel, exhibits as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that the Motion for Dismissal of this case...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court after Hearing on Debtor’s Motion to Reopen Chapter 7 Case for Purpose of Adding Additional Creditors and Objections to Debtor’s Motion to Reopen Closed Bankruptcy Case filed Post-Hearing by D.A. Fedrigo (hereafter “Fedrigo”). At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished th...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon the Continued Hearing on United States Trustee’s (hereafter “Trustee”) Motion to Dismiss Chapter 7 Petition. At the Hearing, the parties were afforded the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. The Court granted Debtor leave to amend schedules to includ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court after Hearing on Trustee’s Objection to Claim of PACO Development Partners II (hereafter “PACO”) and PACO’s Response. At the Hearing, the parties were afforded the opportunity to present the evidence and arguments they wished the Court to consider in reaching its decision. Leave was granted to the Trustee to file a Response no ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court on Plaintiffs Complaint to Avoid Preferential Transfer and Defendants Answer. The parties agreed to submit written arguments and stipulations. The Court has reviewed the written arguments of Counsel, Briefs, all correspondences and exhibits, as well as the entire record in the case. Based on that review and for the following reaso...
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OPINION This matter comes before the court on defendants Rodney Stokes, Chief of the Michigan Department of Natural Resources Real Estate Division, and Crystal N. Incorporated’s respective motions for summary judgment. In this adversary proceeding, debtor and plaintiff Devon Earl Tranter has asked the court to set aside the sale of certain real property that had been bid off to the State of Mic...
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MEMORANDUM DECISION Ralph Boldt, Chapter 7 Trustee, filed a Notice of Intent to Distribute Estate which included fees for paraprofessional services and certain costs for case file storage. The United States Trustee opposes the distribution, stating that the Chapter 7 Trustee may not receive compensation over the statutory cap of 11 U.S.C. § 326(a) even if the duties were performed by a paraprof...
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OPINION This opinion is rendered for the purpose of providing the District Court the basis of this Court’s oral bench decision of August 3,1994 which granted motions for relief from the automatic stay provided for by Section 362 of the Bankruptcy Code brought on by secured mortgage lien creditors General Electric Capital Corporation (“GECC”) and the Resolution Trust Corporation as Receiver of St...
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MEMORANDUM DECISION RESOLVING DISCOVERY DISPUTES AND ISSUE OF WHETHER LIQUIDATION OF AOHL IS A FOREIGN PROCEEDING FOR PURPOSES OF 11 U.S.C. SECTION m Section 304 of the Bankruptcy Code (the “Code”) authorizes a “foreign representative” in a “foreign proceeding” to petition the United States Bankruptcy Court to enjoin actions by creditors against a debtor or property of the estate, to ...
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MEMORANDUM The question presented is whether Tennessee fraudulent conveyance law permits the Chapter 7 trustee to avoid this debtor’s pre-bankruptcy purchase of a single premium insurance policy and transfer to family members of a remainder interest in real property. The transfers are avoidable. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I Between 1982 and 1...
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MEMORANDUM DECISION BRUCE ELLIOT MELTZER (“Debtor”) seeks in his Complaint, filed pursuant to this Court’s March 28, 1994 Order, to discharge his liability due to Beverly A. Mantovani (“Creditor”), whom he claims to have inadvertently omitted from his bankruptcy schedules. In response to the Complaint, Creditor filed her Answer, Affirmative Defenses and Counterclaim, essentially denying the a...
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ORDER ALLOWING FEES After notice to all creditors, this Court has examined all pending fee applications filed in this case. The Court has considered these applications and finds that the following allowances are reasonable. The Court finds that reasonable compensation to Robert Furr, chapter 7 trustee (“trustee”), is $333.91, plus expenses of $0.34. The Court finds that reasonable compens...
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MEMORANDUM OPINION AND ORDER Sandra Davis, the former spouse of the debtor, Thomas Cullen Davis, moves the court to order the United States Marshal to seize and sell the debtor’s homestead in Fort Worth, pursuant to the Texas turnover statute, Texas Civ.Prac. & Rem.Code § 31.-002(a). 1 The debtor contends that Ms. Davis cannot use the Bankruptcy Code to preempt the Texas pr...
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MEMORANDUM The trial of this adversary proceeding was conducted on August 15, 1994 and August 16, 1994. At the conclusion of the trial, the Court announced its determinations and orders from the bench. This is a core proceeding pursuant to Section 157(b)(2)(I) of Title 28 of the United States Code. The Court has jurisdiction over the parties and this matter pursuant to 28 U.S.C. §§ 151, 157...
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*1015 ORDER This matter is before the Court on a Motion for Summary Judgment, filed on behalf of Virginia Vaughn (“Plaintiff’), on her complaint to determine the dischargeability of certain debts that arose from a judgment entered against Gerard M. Quinn, Defendant/Debtor (“Debtor”), by the St. Charles, Missouri, County Circuit Court. The Plaintiff has requested that the debts be declared n...
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MEMORANDUM-OPINION This action is brought by the Chapter 7 Trustee of Transport Associates, Inc. (“Trustee”) against Jackson Oil Company (“Jackson”) to avoid as preferential transfers a total of $148,209.58 transferred by Transport Associates to Jackson in payment for petroleum products. This matter is presently before the Court on Jackson’s Motion for Summary Judgment. Jackson advances t...
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OPINION AND ORDER This Adversary Proceeding comes before the Court on the plaintiffs’ Motion for Summary Judgment. In support of their motion, the plaintiffs rely on the judgment entered by the Circuit Court of Fairfax County against the debtor on June 29, 1993. The plaintiffs assert that as a result of the state court judgment, the debtor is collaterally es-topped from defending agai...
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ORDER RE: STATUTE OF LIMITATIONS INTRODUCTION This case involves a loan from Liberty National Bank (“Liberty”) to Arminex, Inc., a company owned by the Debtor. The note was guaranteed by the Small Business Administration (“SBA”). The loan was originally made in 1986 and Arminex, Inc. defaulted in 1987. The loan was guaranteed by the Debtor and secured by the equity in a house owned jointly by him ...
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MEMORANDUM OPINION AND ORDER RE: CREDITORS’ APPLICATION TO DISTRIBUTE FUNDS INTRODUCTION This case presents the question of the appropriate rate of interest to be allowed an oversecured creditor pursuant to Section 506(b) when the credit agreement provides for an increased interest rate upon default. FACTS The Debtor owned a 116 unit apartment complex in Glendale, Arizona. ...
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MEMORANDUM OF DECISION I Plaintiffs are debenture holders asserting claims against debtors in the approximate amount of $90 million. Under the terms of a Chapter 11 reorganization plan confirmed on June 16, 1993, Circle K was sold to CK Acquisitions Corporation for $399.5 million in cash. CK Acquisitions Corporation was controlled by an investment entity known as Investcorp. In ...
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MEMORANDUM OF DECISION This proceeding arises, on cross motions for summary judgment filed by plaintiff D. Christopher Ward, the appointed Chapter 7 trustee (“trustee”) and defendant Communications Data Services, Inc., an Iowa corporation (“CDS”). Plaintiffs motion is denied and defendant’s motion is granted. The complaint was filed inter alia to invalidate defendant’s Iowa statutory artisan’s lie...
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MEMORANDUM OPINION The debtor, Naomi Sue Wilson, came before the Court on July 19, 1994, seeking a hardship discharge of her student loan obligation to the defendants, collectively known as MOHELA, pursuant to 11 U.S.C. § 523(a)(8)(B). This is a core matter and the Court has jurisdiction by virtue of 28 U.S.C. § 1334 and 28 U.S.C. § 157(b)(2)(I). FINDINGS OF FACT The debtor owes approxi...
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MEMORANDUM OF DECISION Debtor Gary W. Faneher has filed for Chapter 7 relief. Debtor, in the past, has been employed as a bar and restaurant manager, although he is not currently employed in that profession. In his amended schedules he lists stock in a corporation known as MCGB, Inc. with a value of $9,000. Debtor claims $1,000.00 of the value of the stock attributable to a Karaoke machine as exem...
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MEMORANDUM OF DECISION Debtors Thomas and Tina Peters have claimed a homestead exemption, pursuant to Idaho Code § 55-1001 et seq., in their 1989 Windjammer motor home valued at approximately $25,000. The Chapter 7 Trustee Ford Elsaesser and Creditors Ken and Alexandra Kobezak objected to the claim of exemption on the grounds that the motor home is not covered by Idaho Code § 55-1001, the homes...
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ORDER Heard on July 19 and July 27,1994, on the Chapter 7 Trustee’s request for a temporary restraining order and preliminary injunction. In this proceeding, the Trustee seeks to prevent Resolution Trust Corporation’s (RTC) foreclosure sale of real estate which the Debtor transferred to his ex-wife, Traci Cic-cone, and his cousin Raymond Suglia, allegedly in violation of R.I. Gen. Laws § 6-16...
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ORDER Before the Court for determination is a “Motion for Stay Pending Appeal” filed by the Roger H. Froment (the “Debtor”) on August 19, 1994. The Debtor is seeking a stay of this Court’s order of August 12,1993, in which the Court, upon motion by filed by Federal National Mortgage Association (the “Lender”), dismissed the Debtor’s case pursuant to 11 U.S.C. § 109(g). 1 I. Background T...
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ORDER This matter comes before the Court on the cross Motions for Summary Judgment, filed by Embry Robertson Bailey (hereinafter “Plaintiff”) and Marvin Chatham (hereinafter “Defendant”). These Motions involve the determination as to the dischargeability of particular debts. As such, this matter is a core proceeding over which this Court has jurisdiction. See 28 U.S.C. § 157(b)(2)(I). The C...
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OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Background and Facts On October 19, 1990, Everlock Fastening Systems, Inc. (“Everlock” or “Plaintiff’) filed a voluntary petition under Chapter 11 of the Bankruptcy Code. On or within 90 days prior to October 19,1990, Everlock’ made the following transfers by cheek to Health Alliance Plan (“HAP” or “Defendant”): Da...
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MEMORANDUM DECISION Robert and Jacqueline Page, husband and wife, worked farmland in Columbia County as tenants of Dale Zander (“Zander”). During the summer and fall of 1992, crops on that land were damaged by deer. On June 1, 1993, a judgment for eviction and money damages in the amount of $6,775 was entered against the Pages in favor of Zander. After being given notice of eviction by Za...
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MEMORANDUM DECISION Nye C. Pelton (“Pelton”), filed for protection under chapter 13 of the Bankruptcy Code. His case was converted to chapter 7 on September 8, 1992. One of his scheduled assets, a receivable from Anderson Livestock (“Anderson”), is the subject of this dispute between Farm Credit (“FC”) and Pelton’s bankruptcy trustee. Pursuant to an agreement, Pelton selected cattle ...
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171 B.R. 345 (1994) In re Tracy Ann RIDDER, Debtor. Tracy Ann RIDDER, Plaintiff, v. GREAT LAKES HIGHER EDUCATION CORPORATION, Defendant. Bankruptcy No. LM13-91-00850. Adv. No. 93-2442-13. United States Bankruptcy Court, W.D. Wisconsin. August 12, 1994. Melvyn L. Hoffman, Hoffman, Addis & Brandau, La Crosse, WI, for debtor/plaintiff. Lloyd J. Blaney, Madison, WI, for defendant. MEMORANDUM DEC...
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*332OPINION The issue before the Court represents the second stage of hearings to determine if the Chapter 12 Debtors may make direct payments to creditors, thereby bypassing the Chapter 12 Trustee and avoiding his statutory fee. At the first stage, this Court denied numerous challenges to the legal status of the Chapter 12 Trustee, and the manner in which his fees are calculated, but held that in...
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*852 MEMORANDUM OPINION Each of the subject Adversary eases is related to and arose out of an involuntary petition for relief filed against debtor Greenfield Direct Response, Inc. (“GDR”) on July 20, 1992. Originally under Chapter 7 of the Bankruptcy Code, Title 11 U.S.C. On September 8,1992, each proceeding was converted to one under Chapter 11. Among defendants to the ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING MOTION TO ABSTAIN OR DISMISS OF CAISSE CENTRALE DES BANQUES POPULAIRES I. FINDINGS OF FACT A. The Principal Parties and Their Claims Against the Debtor. 1. On May 9,1994, Bellevue Place Associates (“BPA” or the “Debtor”) filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. JE 57. ...
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*547DECISION & ORDER This matter comes before the Court on the objection of Marble Bank to the trustee’s final report and proposed order of distribution of the debtor’s estate. Marble Bank seeks to participate in the trustee’s proposed distribution as an unsecured creditor for a deficiency resulting from the foreclosure sale of certain real property which secured its claim. Marble Bank asserts th...
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MEMORANDUM OPINION Piper Aircraft Corporation (“Piper” or “Debtor”) seeks relief to reduce its unpaid real property and personal property tax obligations for the years 1989 through 1993. The Debtor’s right to seek such relief under § 505 of the Bankruptcy Code is challenged by the tax collector and by the holder of a tax certificate. The Debtor has filed a Motion for Determination of Amount...
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MEMORANDUM In In re Glenn, 760 F.2d 1428 (6th Cir. 1985), the Sixth Circuit held that a Chapter 13 debtor’s power to cure defaults and reinstate a home mortgage under 11 U.S.C. § 1322(b)(5) 1 ends with the sale of the mortgaged property. These debtors filed Chapter 13 after a courthouse sale of their mortgaged homestead but before the recording of a trustee’s deed to the successful purchase...
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171 B.R. 525 (1994) In re The APPLIANCE STORE, INC., and Northeast Consumer Technology Stores, Inc., Debtors. Joseph P. NIGRO, Trustee, Plaintiff, v. PITTSBURGH POST-GAZETTE, Defendant. Joseph P. NIGRO, Trustee, Plaintiff, v. MONTEREY COUNTY HERALD COMPANY, Defendant. Bankruptcy Nos. 92-21573-BM, 92-21574-BM. Adv. Nos. 94-2137-BM, 94-2213-BM. United States Bankruptcy Court, W.D. Pennsylvania. Aug...
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MEMORANDUM OF DECISION On June 17, 1994, Notre Dame Federal Credit Union (“Notre Dame”) filed its MOTION TO APPROVE REAFFIRMATION. On July 5, 1994, Fred R. Hains, counsel for the debtor, filed his OPPOSITION TO MOTION TO APPROVE REAFFIRMATION. The court held a hearing on the motion on July 21, 1994, and took the matter under advisement on July 27, 1994. For the reasons set forth below...
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MEMORANDUM OPINION Several matters are before the court at this time. Debtor MetCo Mining And Minerals, Inc. (hereinafter “debtor”) has brought a complaint against PBS Coals, Inc. (hereinafter “PBS”) at Adversary No. 93-2356-BM in which it seeks to recover the sum of $81,-942.03 for coal sold to PBS for which PBS has not paid. PBS has responded with a counterclaim against de...
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MEMORANDUM OF OPINION ON HOMESTEAD EXEMPTION This case calls for a determination of the validity of the homestead exemption claimed in a Chapter 7 case. Santiago Nerios and wife, Benita Nerios (Debtors) filed for relief under Chapter 7 of the United States Bankruptcy Code 1 on February 28, 1994. The Debtors claimed their homestead exemption pursuant to the Texas Property Code. ...
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MEMORANDUM I. PROCEDURAL BACKGROUND: The debtor, David L. Printy (the “debtor”) filed a voluntary Chapter 11 petition on April 7, 1994 and remains a debtor in possession. In his Schedules Of Assets and Liabilities, specifically Schedule C-Property Claimed as Exempt, the debtor claimed as exempt $80,-000 of his interest in an individual retirement account (“IRA”) at Richfield Bank with an appr...
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MEMORANDUM OF DECISION Presently before the Court is the application Lindquist and Vennum, and Elsaesser, Jarzabek & Buchanan, (“Elsaesser”), attorneys for the Official Unsecured Creditors Committee, for an order authorizing the payment of fees and costs pursuant to 11 U.S.C. § 3B1. I. BACKGROUND The Official Unsecured Creditor’s Committee’s (“Creditors Committee”) empl...
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MEMORANDUM OPINION The matter before the court is Debtor’s motion seeking reconsideration of our opinion and order of July 5, 1994, 169 B.R. 126, overruling Debtor’s objections to certain claims of its former hourly employees for priority for severance pay. Previously, we determined that the severance pay to which these employees were entitled was subject to (a) administrative priority under 11...
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OPINION AND ORDER GRANTING MOTION FOR AUTHORITY TO PAY SUCCESS BONUSES TO CERTAIN OFFICERS AND EMPLOYEES (CORRECTED) This matter is before the Court pursuant to the Debtor’s Motion for Authority to Pay Success Bonuses to Certain Officers and Employees. A hearing was held on August 24, *675 1994, on the motion and the matter was taken under advisement. After due consideration of the motion, th...
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MEMORANDUM OPINION Debtor Master Mortgage Investment Fund (Master Mortgage) filed its Fourth Amended Plan of Reorganization on November 18, 1993 (the Plan). The Plan was duly transmitted to the creditors and all parties in interest of record together with a copy of the *932 Disclosure Statement previously approved by the Court. The Court considered the Plan and six object...
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MEMORANDUM OF DECISION DENYING SUMMARY JUDGMENT TO PLAINTIFFS AND DISMISSING DISCHARGEABILITY COMPLAINT Plaintiffs’ Motion for Summary Judgment requires us to decide 1 whether the so-called *534 “trust” impressed upon the assets of buyers of fruits and vegetables by § 499e of the Perishable Agricultural Commodities Act (PACA), 7 U.S.C. § 499a-t, creates a fiduciary...
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MEMORANDUM OPINION The issue before the Court is whether or not this Court should abstain and dismiss *550 the within Adversary Proceeding or hear and determine whether or not the asserted tax liability is dischargeable if the Plaintiff/Debt- or is first found to be a responsible individual within the purview of § 6672 of the Internal Revenue Code. Oliver Morgan Anderson...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION TO LIFT THE AUTOMATIC STAY THAT IS INCORPORATED IN THE MOTION FOR SUMMARY JUDGMENT This matter is before the court on Mary Phillips’ motion for summary judgment made pursuant to Fed.R.Bankr.P. 7056 and Fed. R.Civ.P. 56. Mary requests that this Court enter summary judgment in her favor on her Objection t...
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ORDER This proceeding is before the Court for determination whether the adversary complaint, filed under 11 U.S.C. § 523(a)(2), (4), should be dismissed as untimely. See 11 U.S.C. § 523(c)(1), Rule 4007(c), Fed. Bankr.R. The pro se parties were required by order of March 2, 1994, to submit additional pleadings on this issue. Adversary Docket No. 11. Both have done so...
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MEMORANDUM OPINION AND ORDER This proceeding is before the Court on Star Media Group, Inc’s Application for Employment Nunc Pro Tunc and Award of Compensation, and the objections thereto filed by the Debtor, WAPI, Inc., and MLQ Investors, L.P. Appearing at the March 30-31, 1994, hearing of this proceeding were J. Patrick Darby, attorney for WAPI, Eric Anderson, attorney for MLQ, and R...
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JOURNAL ENTRY Before the court is the Motion for Summary Judgment by the Internal Revenue Service (“IRS”) (Fil. # 9), and the debtor’s Resistance thereto (Fil. # 19). I conclude that the Motion for Summary Judgment should be sustained. FACTS The parties have agreed that there is no genuine dispute of fact in this case. On April 26, 1991, approximately a week and a half beyond the tax deadline,...
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MEMORANDUM OPINION This matter comes before the Court on the amended motion for contempt for an alleged willful violation of the automatic stay of 11 U.S.C. § 362(a), filed by Jimmie Lee Sump-ter, Jr. (the “Debtor”) seeking an award of actual and punitive damages, costs and attorney’s fees, pursuant to 11 U.S.C. § 362(h). Responses in opposition thereto have been filed by the responde...
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171 B.R. 601 (1994) In re EBP, INC., dba Epic Steel, Debtor. Bankruptcy No. 93-12399. United States Bankruptcy Court, N.D. Ohio, Eastern Division. September 6, 1994. Steven S. Davis, Cleveland, OH, for debtor. Bruce W. McClain, West Lake, OH, for creditors committee. MEMORANDUM OF OPINION AND ORDER RANDOLPH BAXTER, Bankruptcy Judge. The matter before the Court is the Debtor's Motion To Strike an...
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*513 MEMORANDUM DECISION ON APPLICABILITY OF ATTORNEY-CLIENT PRIVILEGE TO DOCUMENTS IN DEBTOR’S POSSESSION Frederick Modell (the “debtor”) and Republic National Bank of New York (“Republic”), Merchants Bank of New York, Israel Discount Bank of New York (“IDB”), and Bank Leumi Trust Company of New York (“Bank Leumi”) (collectively, the “Banks”), as petitioning creditors, have been engaged in inf...
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MEMORANDUM DECISION DENYING MOTION TO REOPEN NO ASSET CHAPTER 7 CASE By order of this court dated on or about August 19, 1992, Dr. Barry Martin Wein-traub, a voluntary chapter 7 debtor, obtained a discharge in bankruptcy pursuant to § 727 of the Bankruptcy Code (“Code”). Before us is his motion dated April 15, 1994, for an order pursuant to § 350(b) of the Code reopening his no asset chap...
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MEMORANDUM OF OPINION AND ORDER I. This adversary proceeding came on for trial on the 27th day of July and 16th day of August, 1994, on the Trustee’s Complaint to Revoke and Deny Discharge pursuant to 11 U.S.C. § 727(d)(1) and/or (d)(2) on the basis that Robert Deskins (Deskins) fraudulently concealed assets from the bankruptcy Trustee. As such, the case falls within this Court’s...
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MEMORANDUM OPINION AND ORDER ON TRUSTEE’S OBJECTION TO APPLICATION FOR FEES AND EXPENSES OF SQUIRE, SANDERS & DEMPSEY AS COUNSEL FOR THE COMMITTEE OF UNSECURED CREDITORS On June 23, 1994, the Court conducted a hearing on the Trustee’s Objection to Application for Fees and Expenses of Squire, Sanders & Dempsey (“SSD”) as Counsel for the Committee of Unsecured Creditors. The Objection o...
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DECISION AND ORDER PRELIMINARY STATEMENT The contested matter before the Court 1 derives from a motion (“Motion”) by the chapter 7 trustee (“Trustee”) for an order disallowing an exemption claimed by the debtor (“Debtor”). The issue raised by the Motion is whether the assets in a trust, created by Debtor pursuant to an allegedly qualified Keogh pension plan, may be exempt ...
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*776 AMENDED OPINION The question in this proceeding is whether the Debtor’s interest as the beneficiary of a family trust is property of the Chapter 7 bankruptcy estate. This Court holds that the Debtor’s interest in the trust is property of the estate because it does not qualify for spendthrift trust or discretionary trust protection under section 541(c)(2) of the Bankruptcy Co...
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ORDER On this 7th day of March, 1994, the Motion for Summary Judgment filed January 12, 1994 by the United States of America (Docket Entry No. 15); the Memorandum in Support of Motion for Summary Judgment (Docket Entry No. 16); the Objection to Motion for Summary Judgment of Internal Revenue Service and Plaintiffs’ Motion for Summary Judgment filed February 1, 1994 (Docket Entry No. 19); Plainti...
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MEMORANDUM OPINION The Georgia Department of Human Resources, ex rel., Katrina Hill, Verliss Wright, and Erica Wright, Plaintiff, filed an adversary proceeding on March 17, 1994. Larry Webb and Barbara Webb, Defendants, filed their response on March 30, 1994. A trial was held on August 24, 1994. The Court, having considered the stipulation of facts and *708the arguments of counsel, now publishe...
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OPINION Renee Stewart Irizarry, the Debtor, filed a complaint in bankruptcy court against Marion Luette Schmidt. The bankruptcy court denied the Debtor’s request for a restraining order, and granted Schmidt’s motion for summary judgment. The Debtor appeals these rulings. We AFFIRM. I. FACTS The parties do not dispute the relevant facts. The Debtor owns real property located at 16621 Kenne...
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MEMORANDUM AND OPINION I. This matter comes before the Court on a motion for summary judgment filed by the debtor-in-possession, Spearing Tool & Manufacturing [“Spearing”]. Spearing filed this adversary proceeding against defendants Buccaneer Tool & Die Company, MST Steel Corporation, United Materials Company, Emmie Die and Engineering, and Griffin Steel Corporation [c...
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OPINION This is an appeal from the bankruptcy court’s judgment declaring that an award of attorney’s fees and costs in a California marital dissolution proceeding constituted nondis-chargeable alimony, maintenance, or support under 11 U.S.C. § 523(a)(5). 2 We AFFIRM. JURISDICTION Original subject-matter jurisdiction was founded on 28 U.S.C. § 1334(b). This was...
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MEMORANDUM OF DECISION Creditor Washington Federal Savings & Loan Association, formerly known as First Federal Savings & Loan Association, Inc., (‘Washington Federal”) is seeking retroactive relief from the automatic stay as to certain property in the above-entitled case. Creditor Associates Financial Services, Inc., (“Associates”) filed a response to the motion asking the Cour...
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MEMORANDUM ORDER This is the trustee’s objection to attorneys’ fees requested by debtor’s attorneys. The debtor filed a voluntary petition under Chapter 11 of the Bankruptcy Code on May 8, 1992. On June 19, 1992, the Court entered an order approving the employment of Stum-bo, Hanson & Hendricks as debtor’s counsel. The debtor’s case was converted to a proceeding under Chapter 7 on October 8, 19...
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DECISION AND ORDER DENYING “MOTION TO VACATE ORDER AVOIDING LIEN OF FIRST NATIONAL BANK” Presently before the court is a “Motion to Vacate Order Avoiding Lien of First National Bank.” 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)(A) and (K). FACTS On February 23,1...
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RULING ON OBJECTION TO EXEMPTION I. ISSUE The debtor, Cynthia Morzella, filed her Chapter 7 petition on December 10, 1993, listing as an unencumbered asset valued at $55,000 a one-half interest in her residence located at 57 Pine Ridge Drive, Harwinton, Connecticut. The debtor, electing in her bankruptcy petition the Connecticut state law exemptions, claimed the residenc...
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ORDER ON SUMMARY JUDGMENT MOTION This adversary proceeding came before this Court on June 14, 1994, on a pretrial hearing on the Amended Complaint filed by the plaintiff on January 20, 1994 (Court Doc. No. 42), as well as a Motion for Summary Judgment filed by the defendants on May 13, 1994 (Court Doc. No. 48). The Court heard extensive argument on the defendants’ Motion for Summary J...
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DECISION AND ORDER GRANTING DEBTORS’ “MOTION TO AVOID JUDICIAL LIEN” (DOC. # 24); ORDER VACATING “ORDER REQUIRING FILING OR MOTION IS DENIED” (DOC. #42) Presently before the court is an objection of Huntington National Bank to the debtors’ claim of exemption and motion to avoid judicial lien. The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in ...
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DECISION AND ORDER This matter is before us again1 on remand from the United States District Court, 153 B.R. 607, ordering us, inter alia, to reexamine and recalculate the compensatory and punitive damages awarded in our Decision and Order dated November 14, 1991. I. BACKGROUND A. Factual History The relevant facts stem from business dealings between the parties which began in 1984, when Arthur...
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INDEX INTRODUCTION. 711-712 Monahan Facts/Context. 712-713 Cole Facts/Context. 713-714 Murphy Facts/Context. 714 GENERAL DISCUSSION. 714-717 Cash Surrender Value. 717-719 Death Proceeds. 719-721 CONCLUSION. 721 MEMORANDUM OPINION INTRODUCTION “Great cases like hard eases make bad law. For great cases are called great, not by reason...
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INDEX Introduction. 464-65 Background. 465-66 Appeals. 467 Administrative Appeal. 467 Motion to Intervene Appeal. 467 Motion to Direct Funds Appeal. 467 Motion for Interpretation Appeal. 467 Motion for Protective Order Appeal. 467-69 Recap Re Procedural Posture. 469 The Essential Issue and Dispute. 469-70 The Doctrine of Res Judicata. 470-7...
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MEMORANDUM This matter comes before the Court on the Motion of the Defendant, Credit Bureau Systems, Inc. for summary judgment and on the corresponding Motion of Plaintiff, Russ Wil-key, Trustee, for summary judgment. The precise issue in this case centers around an interpretation of 11 U.S.C. § 547(c)(7). The facts of this case are quite simple. The Trustee has sued the Defendan...
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MEMORANDUM ORDER This proceeding came on for trial on June 7, 1994. Thomas G. Wallrich appeared for the plaintiff and Joseph A. Wentzell appeared for the defendant. This court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and Local Rule 201. This is a core proceeding under 28 U.S.C. .§ 157(b)(2)(I). ISSUE The issue presented by this proceeding is whether the plaintiff’s c...
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MEMORANDUM OPINION This case was heard by the court on May 27, 1994, on the objection of the chapter 13 trustee to allowance of the claim of the Internal Revenue Service in the amount of $4,000 filed herein on December 23, 1993. The claim is for the estimated income tax liability of the debtor for the tax periods ending 12/31/90 and 12/31/91. The trustee objects to allowance of the claim on t...
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MEMORANDUM DECISION I. Introduction This matter comes before the court on debtor’s objection to the proof of claim filed by the United States (“IRS”) in the chapter 13 bankruptcy of Joyce Wilhelm (“debtor”). By this objection, the court has been asked to determine the amount of personal income tax owed by the debtor. Only the years 1985, 1986 and 1987 are at issue. T...
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ORDER This matter having come on for hearing upon the debtors’ objection to claim number four of the Internal Revenue Service (“IRS”); due notice having been given; Thomas Anthony Poiroux having appeared with his attorney, Michael B. Smith, and William Sawyer, Assistant United States Attorney, having appeared for the IRS; and testimony having been taken and the matter having been taken under ...
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ORDER This matter having come on for hearing upon plaintiffs complaint to determine dis-chargeability of debt versus the United States; due notice of said hearing having been given; the debtor having appeared with his attorney, John Kroutter, and Carol Koeh-ler Ide having appeared for the United States; and testimony having been given and the matter having been taken under submission, the Cou...
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DECISION In this adversary proceeding, the plaintiff, United States of America, has asked the court to deny the debtors, Joseph J. Birkenstock and Generóse M. Birkenstock, a discharge pursuant to 11 U.S.C. § 727(a)(4) and to rule that its tax claim against, the defendant debtors is nondischargeable pursuant to 11 U.S.C. § 523(a)(1)(C). The court has jurisdiction under 28 U.S.C. § 1334(b). This i...
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MEMORANDUM OPINION This adversary proceeding was brought by the Debtor, PBR Communications Systems, Inc. (“Debtor”), to determine the validity of the claim of Jefferson Bank (the “Bank”) against the proceeds generated from the sale of the Debtor’s assets. The Bank seeks entry of a summary judgment determining that it has a valid and perfected security interest in the sale proceeds inc...
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OPINION AND ORDER SUSTAINING LAWRENCE D. HIRSCH’S OBJECTION TO PROPOSED DISTRIBUTION OF THE CHAPTER 7 ESTATE This matter is before the Court pursuant to the Hirsch Law Office’s Objection filed by Lawrence D. Hirsch to the Proposed Distribution of the Chapter 7 Estate. A hearing was held August 30, 1994 and arguments were presented on this matter after which the matter was taken under advi...
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MEMORANDUM OF DECISION AND ORDER ON MOTION TO DISMISS CASE I. INTRODUCTION In this contested matter the Movant, People’s Bank (hereinafter “People’s”), seeks to have dismissed the pending Chapter 13 case of Alan A. Winder and Ruth Winder (hereinafter “Debtors”) on the basis of the Debtors’ alleged ineligibility for relief under Chapter 13 pursuant to 11 U.S.C. § 109(e). Specifically,...
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ORDER SUSTAINING CREDITORS’ OBJECTION TO EXEMPTIONS This matter came before the Court for hearing March 21, 1994, on Creditors’, Mary Kottis, Paul Burke, Harry Casey and William McManus (collectively the “Creditors”), Objection to Exemptions. The Creditors assert that the Debtor, Thomas DeFelice (the “Debtor”) has not been domiciled in the State of Florida for the 180 days immediately preceding ...
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ORDER Before the court is Defendant’s second motion for protective order. Currently pending in state court is a criminal proceeding which arises from essentially the same facts as Plaintiffs complaint to determine discharge-ability. As a result of Defendant’s prior assertion of his Fifth Amendment privilege against self incrimination, by order entered November 3, 1993, resolution of this adversa...
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ORDER This matter is before the court on the motion of Nasaro, Inc. (“Nasaro”) to intervene as of right in this adversary proceeding under Bankruptcy Rule 7024, incorporating F.R.Civ.P. Rule 24(a)(2). Plaintiff opposes Nasaro’s motion. Debtor was in the business of aerosol manufacturing and packaging. The business was operated from a warehouse (the “Property”) in Atlanta. When Debtor’s petition wa...
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ORDER This matter is before the court on the Third Amended Application of TelAmerica Corporation for Allowance and Payment of Administrative Claim for Services Rendered and Reimbursement of Expenses (the “Third Application”) filed June 15, 1993 pursuant to 11 U.S.C. § 503(b)(1), 503(b)(3)(D) and 503(b)(4). The Third Application seeks compensation and reimbursement of expenses in the f...
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ORDER This adversary proceeding is before the court following trial. Plaintiff (the “Bank”) seeks a determination of dischargeability of its claim against Debtor. 1 The Bank’s claim against Debtor arises from the embezzlement of approximately $224,000 from the Bank committed by Debt- or’s wife. Debtor’s wife began her employment with the Bank in May, 1988, as a bookkeeper. Her employment ...
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ORDER This case is before the court on Movant’s motion for clarification or in the alternative for relief from the automatic stay; on Debt- or’s motion for contempt; and on Debtor’s request for oral argument. By order entered October 25, 1993, the parties were directed to brief the issues. Briefs have been filed by both parties. Debtor filed a pleading requesting oral argument “[d]ue to the s...
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ORDER On March 7, 1994, Defendant filed an answer and a motion to set aside the default judgment entered February 23, 1994. Plaintiffs motion for default judgment was filed December 29, 1993; Defendant failed to respond to that motion. Plaintiffs complaint to determine dischargeability was filed and summons issued November 12, 1993. Defendant shows in his motion to set aside the ...
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MEMORANDUM OPINION This matter is before the Court on Motion to Retain Tax Refund filed by Sylvia Ford Brown (“Trustee”). This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(E). Based on the evidence presented to the Court, *156 Trustee’s motion will be denied. The Court publishes these findings of fact and conclusions of law in compliance with Fed. R.Bankr.P. 7052. FINDINGS OF FACT ...
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CONTESTED MATTER ORDER ON MOTION FOR CONTEMPT Frank and Susan Cardillo, the debtors in this Chapter 7 case, (the “Debtors”) move for an order holding a creditor, Moore-Handley, Inc. (“Moore”), in contempt and imposing sanctions for violating the automatic stay. Without this court’s approval, Moore garnished Mr. Cardillo’s wages shortly after obtaining an order determining that a debt owed...
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MEMORANDUM OPINION I. INTRODUCTION The Debtor, Michael R. Sparks, has been a broker, developer, and operator of real estate in the Chicago area since 1961. He has specialized in owning and operating apartment buildings with a focus on so-called “corporate suite” furnished apartments. Faced with various financial difficulties, Mr. Sparks filed a voluntary chapter 11 petition on Se...
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*904 ORDER OVERRULING TRUSTEE’S OBJECTION TO EXEMPTION This matter came before the Court May 19, 1994, on the Chapter 7 Trustee’s objection to exemptions. Upon the agreement of the parties, the Court directed the parties to submit memoranda of law on the issue of whether the Debtor’s interest in an annuity was exempt under Florida law. Having considered the submitted memoranda and for the r...
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ORDER ALLOWING FEES After notice to all creditors, this court has examined all pending fee applications filed in this case. The court has considered these applications and finds that the following allowances are reasonable. The Court finds that reasonable compensation to Marika Tolz, as chapter 7 Trustee, is $979.81, plus expenses of $2.72. The Court finds that reasonable compensation to Ma...
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ORDER DENYING DEBTOR’S MOTION FOR ORDER AUTHORIZING ASSUMPTION AND ASSIGNMENT OF LEASE AND SUBLEASE FREE AND CLEAR OF LIENS, CLAIMS, ENCUMBRANCES AND INTERESTS (STORE NO. 4100) AND SETTLEMENT OF SB PARTNERSHIP’S CLAIMS This matter is before the Court on the motion filed by Food Barn Stores, Inc. (Food Barn) on June 23, 1994, for an Order Authorizing Assumption and Assignment of Lease and ...
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MEMORANDUM OPINION On May 10, 1994, and July 12, 1994, the court heard two motions for summary judgment brought by the trustee. The trustee challenges the applicability of the Negotiated Rates Act of 1993 (“NRA”) as well as the constitutionality of the NRA itself. The court took the matters under advisement and now issues the following opinion. FACTS Americana Expressways (“...
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OPINION Before the Court is Debtor’s Application for Approval of Final Distribution and for Final Decree Closing Case along with an Objection of Farmer City State Bank to the same. Debtor recovered the sum of $14,804.49 from Ackerman Chevrolet as a result of a preferential transfer made by Debtor to Ack-erman within the ninety-day period prior to the filing of Debtor’s bankruptcy petition. ...
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MEMORANDUM OPINION FACTS AND BACKGROUND This matter is before the Court on the defendant’s motion for summary judgment of dismissal of the plaintiffs preference action. The primary issue, one of first impression in this District, is whether the debtor may pursue preference claims posteonfirmation, where the plan contains no reservation of rights or retention of jurisdiction to pr...
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MEMORANDUM OPINION This matter is before the Court on Objection To Allowance Of Claim filed by Jimmy W. Clark (“Debtor”). This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(B). Based on the evidence presented to the Court, Debtor’s objection will be overruled. The following findings of fact and conclusions of law are published in compliance with Fed.R.Bankr.P. 7052. ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is an action to recover an allegedly fraudulent transfer of a security interest in the assets of the Debtors to Texas Commerce Bank-Houston, N.A. (“TCB”) and to equitably subordinate TCB’s claim. These Findings of Fact and Conclusions of Law are entered after a full eviden-tiary trial before the Court. The Court ha...
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RULING ON MOTION OF FEDERAL DEPOSIT INSURANCE CORPORATION FOR EXTENSION OF TIME TO OBJECT TO DISCHARGE I. The Federal Deposit Insurance Corporation (FDIC), by motion filed on June 28,1994 in this Chapter 7 ease, requests a 180-day extension of time, from July 15, 1994 to January 16,1995, in which to file an objection to'discharge or dischargeability. The FDIC contends that Leonard Ginsberg, the ...
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DECISION REGARDING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND PLAINTIFF’S MOTION TO AMEND COMPLAINT AND MOTION FOR SUMMARY JUDGMENT Under the court’s consideration are two motions for partial summary judgment filed by the Defendant, Ralph D. Kaiser Company (“RDK”), and the motion to amend complaint and motion for summary judgment filed by the Debtor/Plaintiff, Barbara Rothenberg (“R...
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ORDER In this adversary proceeding, the Chapter 7 Trustee seeks a determination as to the payment of claims against the estate from assets liquidated by the Trustee, including several lienhold interests of two competing claims of the U.S. Economic Development Administration (“EDA”), and Yellowstone County, Montana (“County”). A motion for partial summary judgment as to the first priority ...
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OPINION AND ORDER GRANTING MOTION TO DISMISS This matter is before the Court on the United States Trustee’s (“UST”) motion to dismiss Lori Anne Christie’s (“LAC”) chapter 7 bankruptcy case pursuant to 11 U.S.C. § 707(b). Upon consideration of the evidence adduced at trial and the oral arguments of the parties, the Court finds that the UST’s motion is well taken and should be granted. The Court ...
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OPINION AND ORDER DISMISSING COMPLAINT TO DENY DISCHARGE AND COMPLAINT TO EXCEPT DEBT FROM DISCHARGE AND DENYING MOTION TO DISMISS BANKRUPTCY CASE This matter is before the Court on the Fahey Banking Co.’s (“Bank”) complaint to deny Steven Ray Parsell (“SRP”) a discharge pursuant to 11 U.S.C. § 727(a) and to except the debt owed by SRP to the Bank from *228 discharge under § ...
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*571OPINION AND ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT AND SCHEDULING PRETRIAL HEARING UPON AMENDMENT TO BANKRUPTCY SCHEDULES This matter is before the Court upon William and Kathleen Long’s (the “Longs”) motion for relief from judgment (the “Motion for Relief’) from this Court’s order compromising claim dated June 23, 1994 (the “Order”). The Longs have also filed an amendment to their ban...
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter is before the Court upon the adversary complaint of Charles P. Homan (“CPH”) which seeks to except the alleged debt of Joseph T. Perretti (“JTP”) from discharge under § 523(a)(6). The Court finds that the CPH’s complaint is well taken and that JTP’s debt to CPH should be excepted from discharge. FACTS The debtor JTP filed his pet...
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MEMORANDUM DECISION What is a law-abiding bank to do? It obeyed state law and froze $541 when served with a facially valid writ of execution. Now the debtor demands that the bank pay $10,-000 in punitive damages on the theory that honoring a writ of execution violated the bankruptcy discharge injunction with respect to a debt that the debtors had intentionally omitted from their bankruptc...
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OPINION AND ORDER DISMISSING COMPLAINT TO DENY DISCHARGE AND DENYING MOTION TO DISMISS BANKRUPTCY CASE This matter is before the Court on the Fahey Banking Co.’s (“Bank”) complaint to deny Lou Ann Irey (“LAI”) a discharge pursuant to 11 U.S.C. § 727(a) and to except the debt owed by LAI to the Bank from discharge under § 523(a). The Bank has also moved to dismiss LAI’s chapter 7 case purs...
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MEMORANDUM OPINION On June 9, 1994, the debtor, All American Manufacturing Corp. (“All American”) filed an adversary complaint (the “Complaint”) *396 against defendants, Quality Textile Screen Prints, Inc. (“Quality Textile”) and Vendor Funding Co., Inc. (‘Vendor Funding”). The Complaint seeks (1) a determination of the validity, priority and extent of any liens held by Vendor Funding and Q...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Motion for Summary Judgment. The Court has reviewed the written arguments of Counsel, affidavits, exhibits, as well as the entire record in the case. Based upon that review, and for the following reasons, the Court finds that Plaintiffs Motion for Summary Judgment should be Granted. FACTS On June 17, 1993 ...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiff’s Verified Complaint For Temporary And Permanent Mandatory Injunction, Motion For Preliminary (Affirmative) Injunction, Motion For Emergency Hearing, Supplemental Brief In Support of Plaintiffs Motion For Preliminary Injunction, and Reply Brief, and Defendant’s Memorandum in Opposition to Plaintiffs Motion for Prel...
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MEMORANDUM OPINION AND DECISION This case comes before the Court on remand from the Court of Appeals, and after a Hearing on Plaintiffs Writ of Execution Issued to Defendant to Garnish Defendant’s Interests in the Bell and Beckwith Profit Sharing Retirement Plan and Trust (hereafter the “Plan”). A Hearing was held on June 22, 1994. At the Hearing, the parties were afforded the opportunity to pr...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Debtor’s Motion to Avoid Lien pursuant to 11 U.S.C. § 522(f). The Court has reviewed the documents submitted and the relevant case law, as well as the entire record in this matter. Based upon that review, and for the following reasons, the Court finds that the Debtor’s Motion should be DENIED. FACTS In December of 1979, the Debtor...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court for Hearing on a Motion for Authority to Sell Personal Property Free and Clear of Liens brought by the Debtor and the Objections filed by the United States Trustee, State Home Savings Bank and Ewers-Bogojevieh and Company. The United States of America filed a Response. A Hearing was held in which the parties were afforded the oppo...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Plaintiffs Motion for Summary Judgment, Memorandum in Support, Reply, and Motion to Strike; and Defendant’s Motion in Opposition, Memorandum in Support, Motion for Summary Judgment, Memorandum in Support, and Final Reply. This Court has reviewed the arguments of counsel, exhibits as well as the entire record in the case. Bas...
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ORDER OF DISMISSAIj THIS CAUSE is before the Court upon the Motion to Dismiss, filed on April 11, 1994, by the United States of America. The United States seeks dismissal of this case for cause, pursuant to Bankruptcy Code section 707(a). Hearing on the motion was held on August 11, 1994. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a), 1334. Moreover, this Court...
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DECISION AND ORDER SUSTAINING OBJECTION TO SECURED CLAIMS Introduction There is authority from other Districts to the effect that if a Chapter 13 debtor agrees to pay the value of collateral (or, because of 11 U.S.C. § 1322(b)(2), the full amount of a mortgage claim) as a secured claim and then later endeavors to surrender the collateral after it has declined in value, and endeavors to re...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint for turnover, filed on June 15, 1994. On the same day that the petition-in-bankruptey was filed, June 2, 1994, the debtor’s 1978 Ford Bronco was sold by the Sheriff to William T. Walker. Debtor seeks return of that vehicle in which he claims exemptions pursuant to 11 U.S.C. § 522(d)(2), (5)....
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ORDER DENYING MOTION TO AMEND FINDINGS THIS CAUSE is before the Court upon the debtors’ Motion to Amend Findings of Fact and/or to Alter or Amend Judgment, filed on August 8,1994, to which the creditor Agribank, FCB (“Agribank”) responded on August 26, 1994. This Court previously ruled in this case that the forty acres1 upon which the debtors currently reside may not be claimed exempt as homeste...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Debtors’ Motion to Avoid Lien pursuant to 11 U.S.C. § 522(f); and Debtor’s letter filed with the Court on July 14, 1994. The Court has reviewed the documents submitted and the relevant case law, as well as the entire record in this matter. Based upon that review, and for the following reasons, the Court finds that the Debtor’...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE is before the Court upon the trial of the complaint to determine dis-chargeability of debt. The plaintiff Gary Carter is a certified public accountant who practices in Ashdown, Arkansas. Carter previously owned an accounting practice in the Dallas-Fort Worth area, but moved to the Texarkana area to be near his elderly parents. In Marc...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW THIS CAUSE came before the Court upon the trial on the merits of the dischargeability action filed by the debtor. Debtor seeks a determination that any debt owed to the Eldridges is dischargeable in his bankruptcy case. 1 I. The defendants, Reuben and Sandra El-dridge, obtained a personal injury tort judgment against Rising Fas...
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ORDER DENYING MOTION TO DISMISS This Cause came before the Court upon the Motion to Dismiss, filed by the defendant on June 2, 1994, and amended on August 22, 1994. The motion alleges that the adversary proceeding was not filed within the statutory two-year limitations period. The debtor filed a Chapter 11 bankruptcy petition on April 28, 1992. This adversary proceeding was filed on A...
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ORDER OF REMAND THIS CAUSE is before the Court upon the plaintiff’s “Objection to Removal of State Court Action,” filed on August 12, 1994, which the Court will treat as a motion for remand, and the Trustee’s Motion to Intervene, originally filed in the state court proceeding. Inasmuch as the Court will remand this matter, adjudication of all other pending motions are better left to the discreti...
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ORDER DENYING MOTION FOR STAY PENDING APPEAL THIS CAUSE is before the Court upon the debtor’s Motion for Partial Stay of Order, filed on August 2,1994, to which the creditor, Carder Investments, Inc. responded. The debtor’s reply is also before the Court. I. THE NATURE OF THE PROCEEDINGS On July 26, 1994, the Court heard numerous motions pending in the bankruptcy ca...
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*503 MEMORANDUM OF DECISION AND ORDER ON TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTIONS I. Issue Code § 522(d)(ll)(D) permits a debtor to exempt “[t]he debtor’s right to receive ... a payment, not to exceed $7,500, on account of personal bodily injury, not including pain or suffering or compensation for actual pecuniary loss, of the debtor....” The question...
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MEMORANDUM ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT The debtor, Randal Charles Fox, commenced this adversary proceeding by filing a Complaint on June 17, 1994, seeking a determination of the dischargeability of his federal income tax liabilities for 1985 and 1986.1 The Internal Revenue Service (IRS) responded on July 25, 1994, with a motion entitled “Motion to Dismiss for Failure to State a C...
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ORDER THIS CAUSE is before the Court upon the Motion to Reopen Case, filed on August 24, 1994, by creditors James K. and Marianne Bailey. Although the nature of the relief sought is unclear from the motion, the creditors apparently seek to reopen the case in order to modify the discharge injunction under section 524 of the Bankruptcy Code. Specifically, the creditors seek to pursue a ...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 case and the matter under consideration is a Motion to Dismiss the Complaint, originally filed by Bieoastal Corporation, d/b/a Simuflite, fik/a The Singer Company (Bicoastal) against Paul A. Bilzeri-an (Debtor). The Complaint filed by Bicoas-tal set forth nine separate claims, in each of which Bicoastal challenged Bilzerian’s right *113to the protecti...
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ORDER ON MOTION SEEKING A DETERMINATION OF TAX LIABILITY TO ST. PETERSBURG THIS is a confirmed Chapter 11 case and the matter before the Court is a Motion filed by Koger Properties, Inc. (Debtor) that seeks a determination of tax liability owed to the City of St. Petersburg (City). In its Motion, the Debtor seeks a determination as to what is the appropriate accrued rate of interest accru...
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ORDER ON DEFENDANT’S MOTION TO DISMISS ADVERSARY COMPLAINT This is a Chapter 11 case and the matter under consideration is a Motion to Dismiss the Complaint. The Motion under consideration is filed by William T. Darling and his wife C. Ann Darling (Debtors) who contend that the Complaint filed by South Trust Bank of Southwest Bank (Bank) is time barred thus subject to dismissal. The facts which ar...
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ORDER ON MOTION FOR COSTS AND ATTORNEY’S FEES THIS IS a Chapter 7 case and the matter under consideration is a Motion for Costs and Attorney’s Fees filed by Richard Maes-trelli (Debtor), the Defendant in the above-captioned adversary proceeding. The facts relevant to the resolution of this controversy as they appear from the record are as follows: On November 30, 1992, Barnett Bank o...
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ORDER ON OBJECTION TO CONFIRMATION THIS IS a yet to be confirmed Chapter 11 case of Immenhausen Corporation (Debtor) and the matter under consideration is an Objection to Confirmation of the Plan filed by the Debtor, by Berliner Handels-und Frankfurter Bank (Bank), and the Debtor’s attempt to resort to § 1129(b) cram-down provision of the Bankruptcy Code in order to overcome the rejection...
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DECISION ON MOTIONS TO DISMISS ADVERSARY PROCEEDINGS These proceedings, two of fourteen adversary proceedings commenced on February 15, 1994 by the Chapter 7 Trustee in bankruptcy of Ted A. Petras Furs, Inc. (“Debt- or”), were filed to recover alleged preferential transfers pursuant to section 547 of the Bankruptcy Code (“Code”) and Rule 7001(1) of the Federal Rules of Bankruptcy Proc...
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ORDER ON MOTION FOR RELIEF FROM STAY This is a Chapter 11 case and the matter under consideration involves a dispute between the landlord, Centres of Gulfside, Ltd. (Landlord), a limited partnership, and PAV-CO Enterprises (Debtor), a Florida corporation. The controversy centers around the contention of the Landlord that a certain lease executed by the Landlord and the Debtor on August 5,...
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ORDER ON CONFIRMATION OF REPUBLIC BANK’S AMENDED PLAN OF REORGANIZATION THIS is a yet-to-be confirmed Chapter 11 case and the matter before this Court is the proposed Plan of Reorganization filed by Republic Bank (Bank) in the above captioned case. It should be helpful to recap briefly the background of the Chapter 11 case to gain a better understanding of the issues under consideration. ...
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*366 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 Eugene V. Allen (Trustee), who seeks to set aside a certain transaction by Mildred E. Crawford (Defendant). The Trustee’s claim for relief is set forth in his three Count Complaint. In Count I the Trustee seeks to avoid the transaction as a fra...
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ORDER ON MOTION TO DISQUALIFY COUNSEL THIS is a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion to Disqualify James Fetterman (Fet-terman) from representing Presidential Realty, Inc. (Debtor) as counsel of record in this Chapter 11 case. The Motion is filed by Moors & Cabot (Moors & Cabot), a creditor of the Debtor. In its Motion, Moors & Cabot contends that Fet...
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ORDER ON MOTION FOR RELIEF FROM STAY THIS IS a yet to be confirmed Chapter 11 case and the matters under consideration are two Motions both of which seek relief from the automatic stay imposed by § 362 of the Bankruptcy Code. The Motions are filed by Billy Ray Ary (Mr. Ary) and Emmanuel McClain (Mr. McClain), both citizens of Alabama and former employees of Jim Walter Resources (Debtor), an affili...
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ORDER ON APPLICATION TO EMPLOY STICHTER, RIEDEL, BLAIN & PROSSER AND JONES, DAY, REAV-IS & POGUE AS SPECIAL COUNSEL FOR TRUSTEE THIS is a Chapter 7 liquidation case and the matter under consideration is an Application to Employ Stiehter, Riedel, Blain & Prosser and Jones, Day, Reavis & Pogue (Law Firms) as Special Counsel for the Chapter 7 Trustee filed by Ralph Jay Harp-ley, the duly app...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 case and the matter under consideration is the right of Joseph Creazzo (Debtor) to obtain relief under Chapter 7 of the Bankruptcy Code. The challenge is presented by a Motion to Dismiss filed by Thomas E. Duvoisin, Liquidating Trustee (Liquidating Trustee) who seeks a dismissal of the Debtor’s Chapter 7 case for “cause” pursuant to § 707(a) of the...
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ORDER ON MOTION FOR LEAVE TO FILE FORMAL AMENDED PROOF OF CLAIM AND MOTION TO ENLARGE TIME TO FILE PROOF OF CLAIM THESE are yet-to-be confirmed Chapter 11 eases and the matter under consideration is a Motion for Leave to File Formal Amended Proof of Claim and Motion to Enlarge Time to File Proof of Claim filed by Thomas A. Cevera, Jennifer Cevera, and Doreen Beth Cevera (Claimants) in the...
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ORDER ON AMENDED MOTION FOR RELIEF FROM STAY BY SIMMIE BOWERS, JR. AND SHERYL BOWERS THIS IS the second attempt by Greater Jacksonville Transportation Company (Debt- or) to achieve rehabilitation under Chapter 11 of the Bankruptcy Code. The present matter under consideration is a Motion for relief from the automatic stay filed by Sim-mie Bowers, Jr. and Sheryl Bowers (Bowers) who seek relief fr...
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ORDER ON OBJECTION TO EXEMPTIONS THIS is a Chapter 7 liquidation case and the matter before the Court is the second aspect of an Objection to Claim of Exemptions, filed by Village of Cross Keys, Inc. (Cross Keys), a creditor of John and Rhoda Snape (Debtors). Cross Keys in its Objection initially urged two grounds based on which, according to Cross Keys, the Debtors are not entitled to re...
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ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Before the Court is the Debtor-Defendant’s Motion to Dismiss the above captioned adversary proceeding, under Fed.R.Bankr.P. 7012. The relevant, undisputed facts are as follows: On February 21, 1992, the Picture Group, Inc. and Gary Wagner entered into an agreement whereby the Picture Group agreed to license and market photographs taken by Wagner, and ...
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MEMORANDUM DECISION DENYING MOTION FOR CONFIRMATION AND GRANTING MOTION TO LIFT AUTOMATIC STAY The debtor has sought confirmation of a plan of reorganization in this single-asset real estate Chapter 11 ease under the “cram-down” provisions of Bankruptcy Code § 1129(b). For the reasons more fully discussed below, the plan cannot be confirmed and the secured creditor’s motion to lift th...
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DECISION AND ORDER The Chapter 13 Debtors seek to treat the second mortgage held by Beneficial Mortgage Company of Rhode Island as wholly unsecured, and to remove said mortgage from their principal residence. In its objection, Beneficial argues that Nobelman v. American Sav. Bank, — U.S. —, 113 S.Ct. 2106,124 L.Ed.2d 228 (1993), precludes any modification of its lien on the Debtors’ home....
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ORDER ON OBJECTION TO CLAIM # 11 THIS is a Chapter 7 liquidation case and the matter before the Court is an Objection to Claim #11 filed by the Chapter 7 Trustee (Trustee). Claim # 11 is filed by H.D. Roberts Real Estate Co., Inc. d/b/a Roberts Real Estate (Roberts) as an unsecured claim in the amount of $139,000.00. The Claim is based on a real estate commission allegedly due Roberts for locating...
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*357ORDER ON MOTION TO DISMISS COMPLAINT, TO STAY DISCOVERY AND FOR SANCTIONS THIS is a Chapter 7 liquidation case and the matter under consideration is a Motion to Dismiss Complaint, to Stay Discovery and for Sanctions, filed by Mobil Mining and Minerals Company (Mobil). In its Motion, Mobil seeks dismissal of the complaint, or in the alternative a stay of the discovery of this proceeding. The M...
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ORDER ON CREDITOR’S MOTION FOR REHEARING AND RECONSIDERATION OF ORDER DETERMINING CREDITOR IN CONTEMPT FOR VIOLATION OF THE AUTOMATIC STAY THIS CAUSE came before the Court on May 31, 1994 upon the motion of Creditor Stanley B. Branham (“Branham”) for rehearing or reconsideration of the Court’s Order of April 5, 1994 determining Branham in contempt for violation of the automatic stay. The ...
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OPINION OVERVIEW Debtors appeal a default judgment denying their discharge pursuant to § 727(a). 1 We VACATE the judgment. STATEMENT OF FACTS On April 5, 1993, appellee Federal Deposit Insurance Corporation (FDIC) filed a complaint objecting to the debtors’ discharge pursuant to § 727. The complaint alleged jurisdiction and then restated, without any addition...
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MEMORANDUM OF DECISION This matter arises out of the rejection of a lease for commercial property between Wolf Partnership (‘Wolf’) as the lessor and debtor Ames Department Stores, Inc. (“Ames”) as the lessee. As discussed below, this Court finds that Wolf is entitled to lease rejection damages in the amount of $827,478.36 (plus amounts for post-petition real estate taxes and post-petition co...
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ORDER ALLOWING AND SUBORDINATING CLAIM OF INTERNAL REVENUE SERVICE On February 2, 1994, the court held a hearing on the response of the Internal Revenue Service to an order to show cause for disallowance of its claim. Douglas S. Polsky appeared for the IRS and Gary D. Barnes appeared for the bankruptcy trustee. The court made an oral ruling from the bench on that day. The issue at the heari...
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MEMORANDUM DECISION SUMMARY OF FACTS AND OF DECISION. 441 PRINCIPAL FINDINGS OF FACT. 444 DISCUSSION. 450 I. FAMILY FEDERAL’S CLAIMS AGAINST MANNING. 450 A. Compensatory Damage Claims. 450 B. Punitive Damage Claim. 455 C. Contribution Claim. 455 II. FAMILY FEDERAL’S CLAIM FOR DECLARATORY RELIEF. 455 A.Breach of Duty To Davises. 456 III.CLAI...
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MEMORANDUM OPINION THIS CAUSE came before the Court on the emergency motion of the Debtor, St. Johns Home Health Agency, Inc. (“St. Johns” or “Debtor”) for authority to assume, as an executory contract, its Provider Agreement with the Secretary of the United States Department of Health, Education and Welfare, now known as the United States Department of Health and Human Services (“HHS...
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DECISION ON MOTION TO REJECT EXECUTORY LICENSING AGREEMENT INTRODUCTION Chapter 11 debtor G. Licensing, Ltd., formerly known as Gitano Licensing, Ltd., with *756 the support of the Official Committee of Unsecured Creditors (the “Committee”), moves 1 to reject a certain executory license agreement (the “License”) with the John Forsyth Company, Inc. (“Forsyt...
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DECISION RE MOTION OF SECRETARY OF HEALTH AND HUMAN SERVICES RIGHT TO RECOUP The Secretary of Health and Human Services (“Secretary”) has filed a motion requesting that the court affirm his right to make recoupment under a Health Insurance Benefits Agreement (“Provider Agreement”) with the Debtor and in the alternative, if this court deems it necessary, to grant the Secretary relief f...
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MEMORANDUM OF DECISION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT The principal issue presented by these motions is whether, under Massachusetts law, G.L. c. 184, § 17, a Chapter 7 Trustee is bound by a prepetition judgment against the Debtor to partition by sale certain real property of which the Debtor is a co-owner, where the other co-owner recorded a notice of the partition action bu...
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MEMORANDUM OF OPINION AND ORDER. EBP, Inc. (the Debtor), doing business as Epic Steel, is engaged in the business of producing structural, reinforcing and other steel products for multiple-family residential units and other commercial projects. The Debtor sought relief in this Court by filing its voluntary petition for relief under Chapter 11 of the Bankruptcy Code [11 U.S.C. 1101, et seq.]....
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MEMORANDUM OF OPINION AND ORDER Kahn, Kleinman, Yanowitz & Amson, Co., L.P.A. (KKY & A) seeks an order altering or amending this Court’s Judgment Entry of August 1, 1994, 170 B.R. 329. Specifically, KKY & A requests that the Court amend its findings to reflect that the retainer paid by Debtor to KKY & A was a classic retainer, not property of the estate, and therefore subje...
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DECISION ON OBJECTION TO DIS-CHARGEABILITY OF JUDGMENT AND RESTITUTION ORDER The events which gave rise to this dispute date back to the time when the chapter 7 debtor, Dyana Landrin, was employed as a teller by the plaintiff, Community Mutual Savings Bank (“Bank”). Landrin does not deny that during her employment she took approximately nineteen thousand dollars ($19,000.00) from the ...
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ORDER Before the Court is Debtors’ objection to the proof of claim filed by the Internal Revenue Service (“IRS”). After reviewing the objection, the briefs filed and the relevant law, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052. JURISDICTION The Court has jurisdiction over the subject matter' pursuan...
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OPINION Debtors’ counsel, Mayer, Glassman & Gains (“MG & G”), submitted an application for allowance and payment of attorney’s fees and expenses. The bankruptcy court denied the application. MG & G appeals. We affirm. I. Background Harold and Linda Hanson (“debtors”) filed their joint petition for relief under chapter 7 of the United States Bankruptcy Code 1 on De...
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MEMORANDUM Before the court is the limited question of whether the debtor may limit the interest of Nebraska State Bank of Overton in the debt- or’s hay and cash collateral of hay to the value of the hay as of the date the bankruptcy case was commenced. This matter arose in connection with a Motion for Authority to Use Cash Collateral (Fil. # 4) and a Motion to Incur Secured Indebtedness (Fil...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This ease is before the Court upon the objection to exemption filed by the trustee. The Court held a hearing on the objection May 25,1994, and upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact Debtor and her former husband entered into a separation and property settlement *120 agreement...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon objections by debtor and Enstar to claims 7 and 28 filed by the United States of America Internal Revenue Service (“IRS”). The Court held a hearing on May 19, 1994, and upon the evidence presented enters these findings of fact and conclusions of law: Findings of Fact From 1969 through October, 199...
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MEMORANDUM This adversary proceeding is before the court upon the Trustee’s Motion for Summary Judgment and the Resistance by First National Bank of Morrill. I conclude that summary judgment should be entered in favor of the trustee. FACTS The relevant facts are undisputed. The Chapter 7 bankruptcy trustee seeks to avoid an allegedly unperfected security interest held by First National Bank of...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon the complaint of AT & T Universal Card Services Corporation seeking to except a debt from discharge pursuant to 11 U.S.C. § 523(a)(2)(A). A trial was held on July 27, 1994. Upon the evidence presented the Court enters the following findings of fact and conclusions of law: Findings of Fa...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon the chapter 7 trustee’s motion for civil contempt and sanctions against Richard Jaffe and the Jaffe Corporation as General Partner of J-3 Land Partners, Ltd., for violation of the automatic stay imposed by lí U.S.C. § 362(a). Hearings on the motion were held January 25, March 24, April 7, and May 17,1994, and, ...
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MEMORANDUM This adversary proceeding concerns the dischargeability of a debt that may arise from a pending claim for alleged intentional interference with business relations, breach of fiduciary duty, and appropriation of good will (See A93-4110, A93-4116, and District Court Case No. 4:CV93-3163). Before the court is the Motion for Summary Judgment by the defendant-debtor, Dennis R. W...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court upon motion of Osprey International, Ltd. (“Osprey”) to permit election of stock. The Court held a hearing on the motion on March 17, 1994. Upon the evidence presented, the Court enters these findings of fact and conclusions of law: Findings of Fact Osprey filed an -unsecured claim in the amount of $198,382.21. Debt...
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MEMORANDUM This case presents the question of whether a car is exempt property as an “immediate personal possession” under Nebraska Revised Statutes § 25-1556(1). Before the court is the Objection to Exemptions by the Chapter 7 Trustee and the debtor’s Resistance thereto. The Objection of the Trustee is sustained. I conclude that 1987 Cutlass Oldsmobile of the debtor is not exempt property un...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon a complaint filed by Charles W. Grant, Chapter 7 Trustee. The nineteen-count complaint seeks to determine the priority, validity and extent of liens, avoidance of hens pursuant to 11 U.S.C. § 545(2), avoidance of preferential and fraudulent transfers pursuant to 11 U.S.C. §§ 547, 548 and 544(b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ALLOWING CHAPTER 11 ADMINISTRATIVE EXPENSE OF STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION This ease is before the Court upon a Motion for Chapter 11 Administrative Expense filed by the Florida Department of Environmental Protection (“State”). The Court held a hearing on March 23, 1994, and upon the evidence presented enters these findings of...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding came before the Court upon complaint filed by Harold M. and Sharon E. Mahon seeking denial of discharges of defendants pursuant to 11 U.S.C. § 727(a)(2), (a)(3) and (a)(4). A trial of this adversary proceeding was held on June 1, 1994, and upon the evidence presented the Court enters these findings of fact and conclusions of la...
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MEMORANDUM This adversary proceeding concerns the dischargeability of a debt that may arise from a pending claim for alleged intentional interference with business relations, breach of fiduciary duty, and appropriation of good will (See A93-4111, A93^4116, and District Court Case No. 4:CV93-3163). Before the court is the Motion for Summary Judgment by the defendant-debtor, Marlon A. M...
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OPINION Prior to the filing of her Chapter 7 proceeding in bankruptcy, the Debtor was involved in an automobile accident with Mary Sharp (SHARP). The Debtor was insured by The Farmers Automobile Insurance Association (FARMERS), with the policy providing in part as follows: OUR RIGHT TO RECOYER PAYMENT. B. If we make a payment under this policy and the person to or for whom payme...
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166 B.R. 854 (1994) In re Wilma Joy YOUNG, Debtor. Bankruptcy No. 93-41057-S. United States Bankruptcy Court, E.D. Texas, Sherman Division. April 4, 1994. *855 Andrew E. Jillson and Michael Held, Jenkins & Gilchrist, P.C., Dallas, TX, for Loan Recovery Systems I, II. Scott A. Ritcheson, Hardy & Atherton, P.C., Tyler, TX, for debtor. Mary E. Morrison, Munsch, Hardt, Kopf, Harr, & Dinan...
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MEMORANDUM DECISION REGARDING OBJECTION TO DEBTOR’S EXEMPTIONS The Trustee and Olympic Towers Condominium object to the Debtor’s exemption claims — other than the exemption for domestic animals and food — either because the exemptions are not permitted by law, or should not be permitted unless the Debtor provides more specific information from which the parties can determine if the claime...
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MEMORANDUM ORDER SUSTAINING DEBTORS’ OBJECTION TO TRUSTEE’S FINAL REPORT OF ESTATE AND PROPOSED DIVIDENDS AND ALLOWING CLAIM OF INTERNAL REVENUE SERVICE This cause came before the Court on April 14, 1994, at 9:30 a.m., on the Debtors’ Objec *164 tion to Trustee’s Final Report of Estate and Proposed Dividends, and on the Debtors’ Motion for Leave to File Proof of Claim For IRS. The Court hav...
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MEMORANDUM OPINION This matter comes before the Court on National Enterprises, Inc. Liquidating Trust’s complaint to avoid alleged preferential transfers of certain assets to Associates Leasing, Inc. (“Associates”). This Court has jurisdiction over the matter pursuant to 28 U.S.C. §§ 157(b)(2)(F) and 1334. Venue is appropriate pursuant to 28 U.S.C. § 1409. Upon consideration of the ar...
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ORDER DENYING PARTIAL SUMMARY JUDGMENT, AND MEMORANDUM OF DECISION In this Adversary Proceeding two Chapter 7 Debtors, who had operated a business as partners, seek a determination of federal tax liability under 11 U.S.C. § 505, and additionally seek a determination that the Internal Revenue Service has violated the automatic stay provision, 11 U.S.C. § 362(a), by filing certain federal tax l...
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MEMORANDUM This is a battle between the debtor, a garnishing creditor and the Chapter 7 trustee over unpaid alimony owed to the debtor. Because garnishment of unpaid alimony is not prohibited by Tennessee law and because a Tennessee debtor’s exemption in unpaid alimony is effective only with respect to alimony that becomes due more than 30 days after assertion of the exemption, the garnishing cre...
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OPINION The Federal Deposit Insurance Corporation (“FDIC”), as successor-in-interest, filed a complaint to determine the nondischarge-ability of debt pursuant to 11 U.S.C. §§ 523(a)(2)(A)1 and 523(a)(2)(B) of the Bankruptcy Code. The bankruptcy court determined that the debt owing to the FDIC was nondisehargeable under § 523(a)(2)(B) since it had reasonably relied on a materially false financia...
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MEMORANDUM OPINION Before the Court is the Motion of National Penn Bank, f/k/a National Bank of Boyer-town (“Movant”) for Dismissal of Bankruptcy for Bad Faith Filing or, in the Alternative, Relief from the Automatic Stay of 11 U.S.C. § 362 and Motion to Enjoin the Use of Cash Collateral (the “Motion”). Based on the record made at the hearing held on July 26, 1994 and August 1, 1994, we grant...
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DECISION AND ORDER DENYING CONFIRMATION OF DEBTOR’S PLAN This cause was heard before the Court on Confirmation of the Debtor’s plan of reorganization to which objections were filed by the Debtor’s largest secured creditor. The Court, having reviewed the submission of documents and exhibits, the testimony of witnesses, and the argument of counsel, makes the following findings of fact and c...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion to Abstain filed by Peoples State Bank and Trust Co. (“Bank”). A hearing was held on May 16, 1994, at which time the Court took the matter under advisement. The Bank appeared by and through its attorney, Robert Nugent. Harry D. Krug (“debt- or”) appeared by and through his attorney, Tim Girard. The trustee, Er...
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OPINION Before this Court are the contested fee applications of various professionals who provided services in the above bankruptcy case. 1 Applying for approval of fees and reimbursement of expenses are counsel to the Debtor, Obermeyer, Rebmann, Maxwell and Hippel (“Obermeyer”); counsel to the Committee for Unsecured Creditors (the “Committee”), Adelman, Lavine, Gold and L...
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SUPPLEMENTAL MEMORANDUM OPINION Before the Court is a motion for turnover of funds filed by Jonathan E. Kroner (“Kroner” or “Plan Trustee”), the successor administrator and trustee of the College Bound, Inc. 401(k) Retirement Plan and Trust (“the 401(k) Plan” or “Plan”). The Plan Trustee seeks turnover from the Chapter 11 Trustee of monies including both withheld employee contribution...
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MEMORANDUM OPINION AND ORDER The matter before the court is the motion to dismiss filed by the defendant, Texas Department of Transportation (“DOT”). DOT alleges various reasons why this court does not have jurisdiction over this adversary proceeding, but the main issue is whether, under 11 U.S.C. § 106(a), DOT has waived its sovereign immunity by its conduct. The court concludes that DOT, by m...
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Before the Court are matters under 11 U.S.C. § 502(b). They are objections to three claims, totalling over $600,000, which were filed against the estate of this Chapter 7 Debtor, Cardon Realty Corporation. The claims have been filed by three Pension Funds seeking the unpaid balance of pension plan withdrawal liability under the “Multi-employer Pension Plan Amendments Act of 1980” (“MPPAA”), whi...
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MEMORANDUM OPINION Pending before the Court is Larry E. and Deborah J. Cummings’ (the debtors) Motion to Set Aside Discharge Order and Reopen Case to Accord Further Rehef to the Debtors filed on February 15, 1994. The Court held a hearing on May 2, 1994. The parties filed a Joint Stipulation of Facts on July 20, 1994. I. Jurisdiction The Court has jurisdiction over this pending matter p...
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MEMORANDUM DECISION ON MOTION FOR PARTIAL SUMMARY JUDGMENT The issue before the court is the ownership of certain real property. Technical Land, Inc. (“Technical”) asserts title to the property by virtue of a marshal’s deed issued on January 7, 1993, pursuant to an execution sale on a judgment lien. The plaintiffs assert that this deed was ineffective to convey any interest to the deb...
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OPINION BayBank asserts it lacks adequate protection of its security interest in rents from four commercial properties included under its mortgages and rent assignments. It moves for an order requiring G. Burton Mullen (the “Debtor”) to turn over to it all “net rents” (after expenses). Alternatively, BayBank requests an order requiring the Debtor to “segregate” the monthly net rents, ...
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MEMORANDUM AND ORDER ON COMPLAINT TO DETERMINE DIS-CHARGEABILITY OF DEBT UNDER 11 U.S.C. SECTION 523(A)(5) The plaintiff seeks a determination that a certain hold harmless obligation created by a dissolution decree is nondischargeable under § 523(a)(5). For the reasons that follow, I find that the debt is nondischargeable. SCOPE OF INQUIRY Parties and state courts are increasing...
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*265 SUPPLEMENTAL ORDER On June 25, 1993, the debtor, Jones Truck Lines, Inc., (plaintiff) filed this adversary-proceeding against Foster’s Truck and Equipment Sales, Inc. (defendant), to recover alleged preferential transfers under 11 U.S.C. §§ .547 and 550 in the sum of $114,-836.00. The court entered a default judgment in favor of the plaintiff on February 4, 1994. The defendant filed a “mot...
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*599 ORDER On January 31, 1994, this Court, sua sponte, issued an order for Ron L. Goodman (Goodman) to appear and show cause why he should not be sanctioned for violation of Bankruptcy Rule of Procedure 9011 and/or referred to the Arkansas Committee on Professional Responsibility for preparing and filing a bankruptcy petition containing false statements. A hearing...
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MEMORANDUM OPINION DENYING CLAIMANT’S MOTION BASED ON 28 U.S.C. §§ 157(b)(2)(B) and 157(b)(5) TO TRANSFER DETERMINATION OF CLAIM TO THE DISTRICT COURT ISSUE This opinion decides the narrow and very limited question of whether a disputed, unliq-uidated claim for damages related to the termination of employment is a “personal injury tort” for purposes of 28 U.S.C. §§ 157(b)(2)(B) and 1...
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172 B.R. 894 (1994) In re Robert M. BERG, d/b/a Berg Heating, Air Conditioning & Sheet Metal, Debtor. Robert M. BERG, Plaintiff, v. Scott TUROW, Annette Turow, Wayne Kibar, Kathleen Kibar, Richard Alan Ginkowski and Robert J. Jambois, District Attorney, Kenosha County, Wisconsin, His Assistants, Employees, Agents and Successors, Defendants. Bankruptcy No. 92-24793-DEI. Adv. No. 94-2260. Unite...
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DECISION RE TRUSTEE’S RIGHTS TO SURVIVING DEBTOR’S INTEREST IN REAL PROPERTY OWNED AS TENANT BY THE ENTIRETY This matter comes before the Court pursuant to an objection by James Rerisi (the “Debtor”) to the Chapter 7 Trustee’s motion to sell certain properties owned by the Debt- or and his non-filing, now-deceased wife and to retain the net sales proceeds for the benefit of the Debtor’s estat...
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ORDER Before the court is plaintiff Deborah C. Cummings’ complaint to set aside foreclosure of real property by defendant Knute A. Anderson (“Anderson”) and to avoid the deed under power. The complaint came on for trial and both plaintiff and defendant were present and represented by counsel. This is a core matter pursuant to 28 U.S.C. § 157(b)(2)(A) and (H). The court’s findings of fact and co...
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*372 REISSUED MEMORANDUM OPINION ON DEBTORS’ CHAPTER 13 PLAN Introduction Debtor’s Chapter 13 Plan came on for confirmation hearing. No objections were filed. However, this Court has an independent duty to determine that the Plan satisfies the requirements of law before confirming that Plan. 11 U.S.C. § 1325(a)(1). In re Rimgale, 669 F.2d 426, 431 (7th Cir...
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MEMORANDUM OF OPINION ON SETOFF OR RECOUPMENT The issue in this matter is whether prepet-ition credit card billing offsets and cash re- *847 eeived by Conoco, Iric. (Conoco) within 90 days prior to bankruptcy are permissible re-coupments or whether they are offsets prohibited by § 553 of the Bankruptcy Code. 1 The court finds that the $179,681.77 Conoco took was an...
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MEMORANDUM ORDER This proceeding came on for trial on June 17 and 20, 1994. Sue Ann Nelson, Molly Shields and Mary Jane Miller appeared for the plaintiffs. Thomas Linguanti and John A. Marrella appeared for defendant United States of America and Francis C. Ling appeared for defendant State of Minnesota. This court has jurisdiction pursuant to 28 U.S.C. § 157(a), 28 U.S.C. § 1334, 11 ...
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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 *917 U.S.C. § 157(b)(2)(I), which the Court may hear and determine. PROCEDURAL BACKGROUND ...
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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. PROCEDURAL BAC...
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Drunken driving is a plague that persists as a threat to the health and safety of all Americans. Even before the advent of the automotive age, legislatures recognized the dangers of alcohol abuse and sought through legislation to curb this problem. One of the earliest of these attempts was the Dram Shop Act. 1 More recently, Congress has attempted to restrict the dischargeability of ...
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OPINION COMES NOW before the Court pursuant to regular setting the Motion of Alfred S. Garcia and Rosie A. Garcia for Relief from Automatic Stay. This opinion constitutes findings of fact and conclusions of law in accordance with Fed.R.Bankr.P. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND In March of 1989, Debtors purchased a certain tract of land ...
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ORDER In this adversary proceeding, the Chapter 7 bankruptcy Trustee and Intervenors, United States of America, Internal Revenue Service (IRS) and the Montana Department of Revenue (DOR) seek turnover of assets held by the various Defendants on grounds such assets are property of the bankruptcy estate under 11 U.S.C. § 541. Each Defendant resists the challenge. Trial of this cause was hel...
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MEMORANDUM OPINION I. INTRODUCTION The Debtors, Aargus Polybag Co., Inc., Imperial Bag Co., Inc., and Sac Pak, (herein referred to as the “Debtors”) were manufacturers of polyurethane goods. The plaintiff in this adversary proceeding is one of the Debtors, Aargus Polybag Co., Inc., (“Aar-gus”). Commonwealth Edison Co., Inc., (“Commonwealth Edison”) supplied electricity to Aargus ...
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172 B.R. 481 (1994) In re PINE VALLEY MACHINE, INC., Debtor. Bankruptcy No. 93-41924-HJB. United States Bankruptcy Court, D. Massachusetts. September 28, 1994. *482 *483 *484 James M. Lynch, U.S. Trustee. Christopher Alberto. G. Devon Bascomb. Paul R. Salvage. Steven Weiss. Jonathan R. Goldsmith. Peter M. Stern. Daniel C. Cohn. Martha A. Hildebrandt. Guy B. Moss. Francis S. Moran, Jr. Joel N. Ros...
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MEMORANDUM OPINION AND ORDER THIS MATTER came on for hearing on September 12, 1994, on the Trustee’s Objection to the Debtor’s Claims of Exemptions. The facts are not in dispute. Debtors claim an exemption under C.R.S. § 13-54-102(1)© for thé cash surrender value for two life insurance policies. The total cash surrender value for both policies is less than $5,000.00. The statute involved pr...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Christine Friauf (“Debtor”) to confirm modification of her chapter 13 plan, and on an objection to the motion by the Internal Revenue Service (“IRS”). Appearances were as follows: Michael Urbanos for the IRS; Ian T. Ball for the Debtor; and Stephen Creasey for the ch...
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MEMORANDUM OPINION This matter comes before the Court on the motion of the Official Committee of Unsecured Creditors in the case of For You Management & Development Corporation (the “Committee”) seeking, inter alia, dismissal of this Chapter 11 proceeding on the ground of bad faith. The facts are set forth below. 1 I. FACTS This case was filed by the debtor on...
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OPINION AND ORDER Before the Court is a Motion for Summary Judgment (docket No. 9, filed on November 29, 1993) submitted by defendants Jorge del Valle and Diana Ferrer Marrero alleging that the fiduciary relationship between themselves and plaintiff and/or their assignees has been waived, thereby, prohibiting plaintiff from asserting nondischargeability of the debt pursuant to 11 U.S....
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MEMORANDUM OF DECISION I. INTRODUCTION Before the Court is a motion for summary judgment filed by Plaintiffs, Elizabeth Brixi-us (“Brixius”) and Jeffrey Butler (“Butler”) (collectively, the “Plaintiffs”) against the Defendant, George C. Christian (the “Defendant” or “Debtor”) on a complaint to determine the nondischargeability of a debt under 11 U.S.C. § 523(a)(4). A. Fact...
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MEMORANDUM OPINION A hearing was held September 30,1994 on the debtor’s objection to claims filed by the Washington State Employment Security Department (“ESD”), the Department of Labor and Industries (“L & I”), and the Department of Revenue (“DOR”),1 referred to collectively herein as the “State.” The debtor objects not to the amount of the claims but to the priority of the penalty portions of t...
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ORDER ALLOWING DEBTORS TO CURE DEFAULT AND SUSTAINING DEBTORS’ OBJECTION TO CLAIM OF AGRIBANK, FCB A. INTRODUCTION This is a Chapter 13 case. Pending before the Court is a motion of the debtors for an Order allowing them to cure a default due creditor AgriBank, FCB, as well as debtors’ objection to the claim of AgriBank. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (B) over which...
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MEMORANDUM ORDER The above-entitled matter came on for hearing before the undersigned on the 2nd day of June, 1994, on a motion by Michael and Laurie Buck (“the Debtors”) to confirm modification of their chapter 13 plan, and on an objection to the motion by the Internal Revenue Service (“IRS”). Appearances were as follows: Michael Urbanos for the IRS; Ian T. Ball for the Debtors; and Stephen Cre...
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ORDER By motion defendants seek dismissal of this adversary proceeding and a related objection to the claim of Easy Money Title Pawn, Inc. filed by the debtor-plaintiff in the underlying Chapter 13 ease. Plaintiffs complaint alleges violation by the defendants of the Georgia Criminal Usury Statute (O.C.G.A. § 7-14-18), Georgia Racketeer Influenced and Corrupt Organizations Statutes (O...
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MEMORANDUM OPINION Plaintiff brings this adversary proceeding claiming an award of attorney’s fees against Keith Alan Kline, debtor/defendant (“debt- or”), is excepted from discharge pursuant to 11 U.S.C. § 523(a)(5). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth...
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MEMORANDUM OPINION This adversary proceeding was filed by Brenda Ford (“plaintiff’), the former wife of debtor/defendant Jonnie W. Buckallew (“debtor”)1. Plaintiff claims a judgment debt incurred during the parties’ divorce in the amount of $13,000.00 is nondisehargeable. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(...
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MEMORANDUM OPINION Chapter 7 trustee Jere L. Loyd (the “trustee”) objects to the exemption claimed by debtors in the structured settlement payments Mr. Walters receives. This is a core proceeding under 28 U.S.C. § 157(b)(2)(B) over which the Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(b), 157(a), and 157(b)(1). For the reasons set forth below, the trustee’s objection is SUSTAINED in ...
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DECISION ON MOTIONS REGARDING THE PROCEEDS FROM THE SALE OF THE DEBTOR’S MEDICAL PRACTICE INTRODUCTION Armando J. Solis, M.D. (“Solis” or the “Debtor”) moves, pursuant to 11 U.S.C. § 105(a), essentially, for a judgment declaring that the proceeds of the sale of his medical practice are not property of the estate. Jeffrey Sapir, the chapter 13 trustee (“Trustee”) objects and moves to modif...
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In all aspects of life, humankind strives to achieve a state of being in which the whole equals more than the sum of its parts. At times, however, we are left with disjointed parts having only a resemblance to the original whole. Such a condition is common to bankruptcy, but seldom so graphically as in the present case. Moog Employees Federal Credit Union initiated this adversary proceeding to ...
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OPINION Debtor, whose sole asset is an office building that is substantially overencumbered, attempts to confirm a plan of reorganization under the “new value” exception to the absolute priority rule. I conclude that the plan is not fair and equitable, whether or not it satisfies .the new value exception, because it does not serve recognized goals of reorganization, and because it wou...
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ORDER This adversary proceeding is before the Court on the plaintiffs motion for a preliminary injunction. Plaintiff seeks to enjoin the defendants from erecting a fence or any form or manner of barricade on the debtor’s property which would prevent traffic from crossing debtor’s property when going from one portion of plaintiffs property to another por*692tion of plaintiffs property. After cons...
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OPINION REGARDING CITY OF KENT-WOOD’S MOTION FOR SUMMARY JUDGMENTITO DISMISS/TO ABSTAIN I. ISSUES This adversary proceeding raises a number of complicated issues. Does this court have jurisdiction to hear, and render a final order or judgment in, this adversary proceeding, which was filed after confirmation of the Debtor’s chapter 11 plan of reorganization? Even if the court has ...
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DECISION ON PLAINTIFF’S REQUEST FOR A DEFAULT JUDGMENT AND DEFENDANT’S REQUEST FOR LEAVE TO FILE A LATE ANSWER Ambassador Factors Corporation (“Ambassador”), the plaintiff, seeks the entry of a default judgment in this nondisehargeability action commenced against the Chapter 7 debtor, David James Roth. In sum, Roth has yet to submit an answer or otherwise move notwithstanding that the com...
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MEMORANDUM OPINION These matters come before the Court on Count I of the complaint of Laura M. Gryne-vich (“Ms. Grynevich”) against Michael P. Grynevich (the “Debtor”) pursuant to 11 U.S.C. § 523(a)(6) for the determination of the dischargeability of a certain debt, and on the Debtor’s petition for payment of his attorney’s fees pursuant to 11 U.S.C. § 523(d). For the reasons set...
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MEMORANDUM OPINION This adversary proceeding is related to the consolidated bankruptcy cases of three business entities, each filing under Chapter 7 of the Bankruptcy Code: Gerardo Leasing, Inc. (“Gerardo Leasing”), Gerardo & Sons Motor Service, Inc. (“Gerardo & Sons”), and Getco, Inc. (“Getco”). Plaintiff William A. Brandt, Jr., Trustee for each of the three debtors, filed this five-...
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AMENDED MEMORANDUM OPINION AND ORDER DENYING DEBTOR’S MOTION TO REINSTATE I. The debtor has filed a Motion to Set Aside Dismissal, Reinstate Bankruptcy Petition, Extend Time to File Chapter 11 Documents and Waive Reinstatement Fee. The procedural history of this case leading up to this motion is as follows: On March 28, 1994, the debtor filed this Chapter 11 bankruptcy case. On April 8,...
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Memorandum Opinion and Order This chapter 7 case came on for hearing before the Court on January 22, 1993 on a Motion to Compel Trustee to Return Exempt Property, filed by the debtor on November 27, 1992. Debtor seeks the return of his Individual Retirement Account (“IRA”), plus interest, which debtor had claimed as exempt property and which had been appropriated by the Chapter 7 Trus...
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ORDER SUSTAINING OBJECTION TO ORDER DIRECTING THE CORRECTION OF DEFECTIVE PLEADING I. In this case, 1 the Internal Revenue Service filed a “Request for Payment of Internal *539 Revenue Taxes,” (currently Form 6338 A(C) (Rev. 6-88)). This form asserts “Administrative Claims” for taxes due from the debtor, and requests payment. A copy was apparently served on the debtor. Because this “Req...
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DECISION AND ORDER PRELIMINARY STATEMENT Plaintiffs filed the within Adversary Proceeding seeking a determination that certain of Debtor’s obligations are non-dischargeable for having been incurred through fraud or defalcation while Debtor was acting in a fiduciary capacity. Before the Court is Plaintiffs’ motion for summary judgment (“Motion”); Debtor opposed the Motion and cross-mo...
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OPINION This is a preference case brought by the chapter 7 trustee of Farrell & Howard Auctioneers, Inc. (the “Debtor”), a licensed aue- *713 tioneer. Among the defenses of Lawrence Lynch Corp. (the “Defendant”) is the contention that the payment in question came not from funds of the Debtor but rather from either the Defendant’s funds or funds of others whose property th...
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*53 MEMORANDUM AND ORDER ON MOTION TO MODIFY PLAN AFTER CONFIRMATION The movant, Keycorp Mortgage Inc., seeks to modify the debtors’ confirmed chapter 13 plan so that its claim will be treated as fully secured, rather than secured in part and unsecured in part. 1 For the reasons that follow, I conclude that Keycorp’s motion must be denied. BACKGROUND The debt...
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MEMORANDUM OPINION This matter comes before me on Debtor’s First Motion to Modify Chapter 13 Plan After Confirmation (“Motion to Modify”) filed by Ruby Lee East (“Debtor”) on March 25, 1994. Mellon Mortgage Company (“Mellon”), a secured creditor in the case, has filed an objection to Debtor’s proposed modification. After having conducted a hearing on the motion on April 18, 1994, I took the m...
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ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT BACKGROUND AND UNDISPUTED FACTS On May 2,1986, debtors and Lumbermen’s Investment Corporation (“LIC”), the mortgagee on debtors’ principal residence, entered into a mortgage agreement on debtors’ principal residence. On March 30, 1989, debtors filed their voluntary petition for relief under Chapter 13 of the Bankruptcy Code. 1 ' On the same date...
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OPINION This matter having come before the Court on a Motion for Summary Judgment filed by Defendant, United States of America/Internal Revenue Service (IRS), and Responses thereto; the Court, having heard arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy ...
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MEMORANDUM OF DECISION ON OBJECTION OF UNITED STATES TRUSTEE TO APPLICATION FOR APPROVAL OF EMPLOYMENT OF ATTORNEY FOR OFFICIAL COMMITTEE OF UNSECURED CREDI TORS 1 I. On August 5, 1994, the Official Committee of Unsecured Creditors (the Committee) in the Chapter 11 case of Joseph A. Calabrese (the debtor), filed an application to approve the employment of Pepe & Hazard...
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MEMORANDUM OPINION In this matter, Pacific Northwest Group A (“PNGA”) seeks allowance and payment of an administrative claim under 11 U.S.C. § 365(d)(3) 1 . The claim arises out of the debtor’s rejection of a Lease Agreement, dated February 1, 1993 (the “Lease”), between the debtor as lessee and PNGA as lessor. PNGA claims that under Section 365(d)(3) it is entitled to payment ...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MSI Financial Group, Inc., (“MSI” or the “Plaintiff”) brings this adversary proceeding against the debtor Douglas C. Mullins (the “Debtor” or the “Defendant”) for a judgment denying the Debtor’s discharge and determining that a debt owed by the Debtor to the Plaintiff is not dischargeable. The Defendant moves for summary judgment on the grou...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Juanita Price (the “Debtor” or “Plaintiff’) seeks to recover from Adam Gaslowitz (the “Defendant”) funds paid to him as her attorney in partial settlement of an interpleader action initiated by Metropolitan Life Insurance Company (“Metropolitan”) in the United States District Cou...
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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 the debt for federal income taxes and civil fraud penalties due and owing by Frank W. Miller and his wife, Melinda J. Miller (Debtors) in the amount of $106,235.45. The claim of nondischargeability is asserted by the United St...
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MEMORANDUM OPINION The purpose of this opinion is to announce my decision on the defendants Environmental Protection Agency’s and Department of Housing and Urban Development’s motion to dismiss the plaintiffs amended complaint. The motion is filed under both Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) which govern bankruptcy proceedings through Bankruptcy Rule 7012. *913...
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ORDER ON OBJECTION TO CLAIM NO. 11 OF INTERNAL REVENUE SERVICE THIS CASE came on for consideration on the Objection to Claim No. 15 of Internal Revenue Service filed by Frank G. Marsiat (Debtor). The Debtor objects to claim no. 15, which amends claim no. 11, because claim no. 11 was filed two days after the bar date for filing claims. In response to the objection, the IRS asserts that the failu...
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OPINION The debtor in possession failed to make postpetition contributions to its employees’ health plans and pension funds in breach of its obligation under collective bargaining agreements (CBAs) with its unions. It sought and was granted an interim order pursuant to 11 U.S.C. § 1113(e) providing prospective downscaling of benefits in four CBAs and sanctioning, nunc pro tunc, ...
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*262 FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding is before the Court upon a complaint filed by debtors, Floyd and Elizabeth Binkley, to determine the dischargeability of tax debts for the years 1979 through 1989. A trial regarding this issue was held on June 21, 1994. After hearing the evidence presented, the Court makes the following Findings of Fact and Conclusions o...
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MEMORANDUM OF DECISION Background and Statement of the Issues. The State of Idaho, Department of Labor & Industrial Services (“State”), which holds creditor claims assigned to it by certain former employees of the Debtor, has objected to the proof claim of Z, Inc. dba Paul’s Market (“Paul’s”). The State contends that Paul’s claim is not entitled to priority, which status it has a...
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OPINION AND ORDER DISMISSING COMPLAINT FOR WILLFUL VIOLATION OF THE AUTOMATIC STAY This matter is before the Court upon John Estep’s (“Estep”) adversary complaint against Fifth Third Bank (“Bank”) seeking damages for the Bank’s alleged willful violation of the automatic stay pursuant to 11 U.S.C. § 362. The Court finds that Estep’s complaint is not well taken and should be dismissed. ...
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OPINION OVERVIEW Appellant Airwork Corp. repaired the debtor’s damaged aircraft engine. The debt- or moved the court to release to Airwork the insurance proceeds payable to the debtor for the loss. The unsecured creditors committee and Safeco, a secured creditor with an interest in both the engine and the insurance proceeds, resisted the motion. Airwork offered various theories t...
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OPINION Creditor commenced an adversary proceeding seeking to except from discharge a debt arising from a state court judgment against the debtor for sex discrimination and willful withholding of wages under 11 U.S.C. § 523(a)(6) 2 . The bankruptcy court ruled that the judgment debt was nondischargeable and awarded the creditor attorney’s fees incurred in prosecution of the...
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OPINION OVERVIEW The Appellant Karen Raiman, a Chapter 7 Debtor, filed a motion to enforce discharge in the bankruptcy court relating to certain tax claims asserted against her by the California State Board of Equalization. In addition, Debtor requested compensatory sanctions be imposed against the creditor. The bankruptcy court found that the tax claims were not dischargeable and en...
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OPINION AND ORDER DENYING MOTION TO AVOID LIEN This matter is before the Court upon Michael and Kelly Krueger’s (“Debtors”) motion to avoid a lien held by City Loan Financial Services (“CLFS”) in certain furniture (the “Furniture”) acquired with the proceeds of a loan obtained from CLFS. The Court finds that the Debtors’ motion is not well taken and should be denied. FACTS T...
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*780 OPINION This matter having come before the Court on a Motion for Summary Judgment filed by Defendant, Larry Stults, Administrator of the Estate of Opal Stanza, and Responses thereto filed by Plaintiffs and Defendant, First National Bank in Toledo; the Court, having heard arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and con...
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OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS, GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND AVOIDING FRAUDULENT TRANSFER This matter is before the Court upon Trustee Elizabeth Vaughan’s (the “Trustee”) motion for summary judgment against Donna J. McDowell (“DJM”) on the Trustee’s complaint to avoid an alleged fraudulent transfer pursuant to 11 U.S.C. § 548 to which DJM ...
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ORDER This matter is before the Court on the “First Amended Complaint for Turnover, Accounting and Payment of Money Owed”, filed on behalf of Charles W. Riske (“Trustee”), and the Trustee’s “Motion for Summary Judgment”. The Trustee has requested that Luther Oliver (“Debtor”) be ordered to turn over to the Trustee the sum of $94,768.53 in tax refunds received by Debtor after the commencement ...
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ORDER This matter comes before the Court on the issues raised by the Trustee’s Objection to Debtor’s Claim of Homestead Exemption, filed by Theo D. Mann (hereinafter “Trustee”). A hearing on the Trustee’s Motion was held on August 26,1994, during which time a dispute arose as to whether or not a particular item of property belonged to the Chapter 7 bankruptcy estate of Curtis Wilhem M...
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ORDER This matter comes before the Court on the request for confirmation of the Chapter 11 plan of reorganization by Atlanta Southern Business Park, Ltd. (hereinafter “Debtor”). The Debtor seeks the confirmation of its plan over the objections of NationsBank of Georgia, N.A. (hereinafter “NationsBank”), a secured creditor. The matters involved herein constitute a core proceeding over ...
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MEMORANDUM OPINION These two cases are before the Court on a common question of law concerning the entitlement of the debtors to assert the Kentucky homestead exemption in these Chapter 7 cases. A short review of the facts is necessary as a preliminary matter. Eli Powell (“Powell”) filed his proceeding under Chapter 7 on February 9, 1994. Among the listed assets is his residence ...
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DECISION PRELIMINARY STATEMENT Before the Court1 is the motion (“Motion”) of The Troy Savings Bank (“Troy”) for a change of venue to this Court of the bankruptcy case of Huntington & Kildare, Inc. (“H & K”). H & K voluntarily commenced its bankruptcy case in May of 1994 by the filing of a petition in the United States Bankruptcy Court for the District of Connecticut (Bankr.Case No. 894-21930). LA...
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DECISION This action involves a complaint to avoid allegedly fraudulent and preferential transfers, under 11 U.S.C. §§ 544(b), 547 and 548. Plaintifí/Debtor, Pajaro Dunes Rental Agency, Inc. (“PDRA”), claims that a $1 million nóte against it in favor of Defendants, Laurence Spitters, et al. (“Spitters”), supposedly used to finance construction of a new office building and c...
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ORDER Heard on January 27, 1994, on the Creditor Committee’s Petition for Instructions regarding the disposition of $31,855.52 held in escrow with the Chairman of the Committee. The background and travel are as follows: More than five years ago, on June 19, 1989, the funds in question were delivered to Stephen Barrett, as Chairman of the Creditors’ Committee, for distribution to Class Four un...
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ORDER DENYING DEBTOR’S MOTION TO QUASH NOTICE OF RENEWED § Ski MEETING, AND REQUEST FOR EXPEDITED HEARING Before the Court is the Debtor’s Motion to Quash Notice of Renewed § 341 Meeting and Request for an Expedited Hearing by Teleconference on the Motion. It is the Debtor’s position that the Trustee’s Notice of Renewed § 341 Meeting should be quashed, on the ground that the Trustee i...
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The Plaintiff, who is the Debtor’s former wife, requests a determination that certain obligations of the Debtor imposed under the terms of a Decision and Order of the Washington County Family Court, are nondis-ehargeable under 11 U.S.C. § 523(a)(5), on the ground that said obligations are in the nature of alimony or support. The matter was taken under advisement on the written submissions of the ...
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MEMORANDUM DECISION ON OBJECTION TO DEBTOR’S DISCHARGE Tzvi Nof (“Nof’) seeks judgment pursuant to §§ 727(a)(3), (a)(4)(A), (a)(4)(D) and (a)(5) *315 of the Bankruptcy Code (“Code”) denying Chaim Gannon (“Gannon” or “debtor”) his discharge in bankruptcy. Alternatively, he requests that his undisputed debt of $39,-987.50 be declared nondisehargeable pursuant to §§ 528(a)(2...
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172 B.R. 718 (1994) In re Katherine M.J. McGREGOR, a/k/a Mary Jo K. Higginbotham, Debtor. Bankruptcy No. 94-41302-JFQ. United States Bankruptcy Court, D. Massachusetts. October 21, 1994. *719 Ralph Stein, Salem, NH, for Katherine M.J. McGregor. Richard Askenase, Shapiro & Kreisman, Framingham, MA, for Countrywide Funding Corp. OPINION JAMES F. QUEENAN, Jr., Chief Judge. Katherine M.J. McGreg...
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DECISION AND ORDER ON TRUSTEE’S APPLICATION TO RETAIN ATTORNEY By application dated May 16, 1994, Kenneth P. Silverman moves for the entry of an order of this court approving the employment of Jaspan, Ginsberg, Schlesinger, Sil-verman & Hoffman as attorneys for the trustee. On June 6, 1994 the office of the United States Trustee indicated that it had “no objection” to the entry o...
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MEMORANDUM OF OPINION ON MOTIONS FOR CONDITIONAL APPROVAL OF DISCLOSURE STATEMENT AND FOR RELIEF FROM THE AUTOMATIC STAY Mohammed S. Barakat filed bankruptcy on October 22, 1993, principally to protect his apartment building from foreclosure by Life Insurance of Virginia (“LIV”), which is an undersecured creditor. The LIV note, made by the debtor and four relatives, was all due on Septemb...
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*137 MEMORANDUM ON PRIORITY OF LIEN OF DEFENDANTS UNITED STATES OF AMERICA AND UNION PLANTERS NATIONAL BANK An involuntary case was commenced against the debtor, Dorrough, Parks & Company, on April 27, 1992, and an order for relief was granted under Chapter 7 on June 18,1992. This adversary proceeding was the subject of a previous memorandum opinion and order filed on November 4, 1993, resolvin...
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OPINION Is there any bite in the Bankruptcy Code’s toothless tiger, 11 U.S.C. § 521(2)? Consumer debtors who are not in default on secured consumer debts sometimes flout the mandate in section 521(2) that they state (and perform) an intention to reaffirm the *684 debt, surrender the collateral, or redeem the collateral by paying its value. Instead, debtors who are not otherwi...
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MEMORANDUM OPINION AND ORDER Edward G. Grant, trustee, brings this adversarial proceeding for turnover of property and other relief pursuant to §§ 542(a), 548(a)(2) and 550 of the Bankruptcy Code. This matter came to trial on September 8, 1994. For the reasons stated herein, the Court finds in favor of the trustee. FINDINGS OF FACT Tidewater Sand Co., Inc. (“Tidewater”) was engaged in t...
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MEMORANDUM OPINION Douglas Ray Schroeder and Ann Denice Schroeder (hereinafter “Debtors”), filed a petition under Chapter 7 of the United States Bankruptcy Code on September 9, 1991. The Debtors hsted as an asset, real property known as 596 Counsel Oaks Drive, Waldorf, Maryland (“Property”), and valued the Property at $112,000.00 in Schedule A. The Debtors hsted two consensual credito...
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MEMORANDUM OPINION AND ORDER In this adversary proceeding, the defendants Barrincorp Industries and Dominion Automotive Industries have moved to dismiss, or alternatively, for summary judgment. While the parties agree that the proceeding is non-core, they all consent to the entry of a final judgment by this court on the issues resolved by this Opinion. I. Procedural History...
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MEMORANDUM OPINION AND ORDER On March 7, 1994, a hearing was held on Timothy Seyferth’s Amended Second Motion for Contempt, the final motion in a series of contempt pleadings. The bankruptcy trustee supported Mr. Seyferth’s current motion and previous motions for contempt, and by order entered January 31, 1994, was permitted to intervene in the contempt proceedings which are the subje...
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MEMORANDUM OPINION AND ORDER This is the court’s decision on Trans World Airlines, Inc.’s (TWA) motion for summary judgment with respect to claim number 6791 filed by Ann G. Spadafora. I. JURISDICTION Original jurisdiction for this matter lies in the United States District Court for the District of Delaware. 28 U.S.C. § 1334. The District Court has referred that jurisdiction to this cou...
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ORDER — COMPLAINT OBJECTING TO DISCHARGE On April 19,1994, the Complaint Objecting to Discharge came on for trial. Plaintiff, Bill Kirk, appeared pro se. Defendant/Debtor, Cheryl L. Boughner, was represented by her attorney, Michael R. Brown. At the conclusion of the hearing, the Court took this matter under advisement upon a briefing deadline. Post-trial briefs have been filed and the Court now ...
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DECISION ON MOTIONS TO DISMISS AND FOR SUBSTANTIVE CONSOLIDATION OF THE BANKRUPTCY CASES I. INTRODUCTION Before me are three motions. 1 Because they are interrelated, I will decide them together. First are motions 2 filed by Status Eyes Ltd. (“Status Eyes”) and Traekwise Sales Corporation (“Traekwise”) to dismiss the Chapter 11 cases 3 of Paolo Gu...
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ORDER GRANTING MOTION TO LIFT STAY The United States of America on behalf of the Internal Revenue Service (“IRS”) requests relief from the automatic stay pursuant to 11 U.S.C. § 362(d) to set off a prepetition income tax refund due to the Debtors against the IRS claim filed in this case. The Debtors filed a petition for relief under chapter 13 of the Bankruptcy Code on March 22, 1994. Debtors...
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MEMORANDUM DECISION CAME ON for consideration the complaint of Robert Beeter, the debtor (“plaintiff’ or “debtor”) for violation of the automatic stay, 11 U.S.C. § 362(a), and to enforce the permanent discharge injunction of 11 U.S.C. § 524(a), against Tri-City Management Services, Inc. (“Tri-City”), in connection with post petition actions taken by Tri-City in pursuit of collection of co...
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MEMORANDUM OPINION This adversary proceeding is before the Court on the debtor’s motion to dismiss for failure to timely file a complaint seeking a nondisehargeability determination pursuant to 11 U.S.G. § 523(c) within the deadline specified by Bankruptcy Rule 4007(c). The deadline for filing complaints was set for July 25, 1994. Eckel Industries, Inc. filed their complaint on July 26, 1994 1 T...
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MEMORANDUM OPINION In the prior hearing the trustee was granted judgment by default with regard to the *48 defendant Oneida Development Corporation. In the present hearing conducted on June 17, 1994 the Court heard extensive oral argument with regard to the plaintiffs motion for entry of summary judgment against the defendant Bar-Land Corporation. The defendant has oppose...
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Memorandum of Decision Before defendant George Vierra filed his chapter 7 bankruptcy petition, he was a defendant in a state court action in South Carolina. He answered the complaint, but his default was later entered when he failed to comply with discovery orders. The court *418 held' a default hearing and made specific findings of fraud in awarding plaintiff D. Parker Stokes $100,000.00 in ...
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MEMORANDUM OPINION This matter comes before the Court on the Motion of Bank One — Milwaukee (“Bank One”) to Allow a Late Filed Claim, Debtor’s Memorandum, and Bank One’s Reply to Debtor’s Memorandum. The Debtor is represented by Attorney Gary C. Flanders. Bank One is represented by Attorneys Darren L. Besic and Kevin M. Kelly. The Trustee is represented by Attorney Mary P. Gor-man, but she ha...
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ORDER ON DEBTOR’S COMBINED OBJECTION TO PROOFS OF CLAIM On September 16, 1991, debtor, jointly with her late husband, filed a voluntary petition under Chapter 13 of the Bankruptcy Code. 1 In March 1992, a Chapter 13 plan was confirmed by the court in that ease. Debtor thereafter suffered extensive health problems and her husband later died. Being unable to complete her plan, de...
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RULING ON MOTION FOR PAYMENT OF ADMINISTRATIVE CLAIM I. ISSUE Seaboard Security Company (Seaboard) filed a motion on May 2, 1994 for payment to it of an administrative claim in the amount of $8,416.30, a sum allegedly due Thomas M. Germain (Germain), the original trustee appointed in the Chapter 7 case of Charter Oak Security Agency, Inc. (the debtor). Seaboard’s asserted entitlement to such p...
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MEMORANDUM OPINION AND ORDER INTRODUCTION This ease presents the issue of whether potentially exempt property should be included in the best interest of creditors test of § 1325(a)(4) and the best efforts of the debt- or test of § 1325(b). JURISDICTION This Court has jurisdiction over the subject matter of this proceeding pursuant to 28 U.S.C. §§ 151, 157, 1334 and Local Rule 29 of the ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the trustee’s motion for termination of the Chapter 12 proceeding and for discharge of the debtors and trustee. Farmers Home Administration (“FMHA”) objected on the basis that the debtors failed to pay all disposable income into the plan for distribution, that the debtors made unauthorized expenditures out of ...
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MEMORANDUM OPINION AND ORDER CONTAINING THE COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW CCEC Asset Management Corporation (CAMC) seeks a judgment against Chemical Bank under 11 U.S.C. § 550 upon the avoidance of a series of three transfers under 11 U.S.C. § 544. The court issued a partial summary judgment by bench ruling on March 21, 1994, and conducted a trial of the remaining is...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW The Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Health and Welfare Fund and the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund (“Funds”) filed claims herein. They moved for estimation of their claims for the purpose of counting their vote against the debtor’s proposed Plan of Reo...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Following trial on the merits of the captioned Adversary proceeding, both sides having rested and the evidence and argument of the parties having been considered, the Court now makes and enters the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. Plaintiff FCC National Bank (“Plaintiff”) is a financial institu...
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ORDER DETERMINING GARNISHEES’ OBLIGATIONS UNDER GARNISHMENTS SERVED OUTSIDE THE DISTRICT OF KANSAS These proceedings are before the Court on the garnishees’ answers to. garnishment orders and the motion of garnishee Firstar Bank Madison (Firstar) for a determination of its obligations. Firstar appears by counsel Lynn M. Stathas and Cindy Dillard. Garnishee Wachovia Bank of Atlanta (Wa-cho...
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ORDER On the July 9, 1991, Jones Truck Lines, Inc. (Jones) filed a voluntary petition for relief under the provisions of Chapter 11 of the United States Bankruptcy Code. On July 7, 1993, Jones filed a complaint for turnover of property and for money judgment against IXL Manufacturing Company, Inc. (defendant). Jones sought to recover the sum of $15,703.34, plus interest, representing ...
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173 B.R. 106 (1994) In re TIERRA PETROLEUM, INC., dba Texas Coastal Petroleum of Oklahoma, Inc., Debtor. Bankruptcy No. 92-41087. United States Bankruptcy Court, E.D. Texas, Sherman Division. October 27, 1994. *107 Gary Derer, Celina, TX, for debtor. Christopher Graves, Oklahoma City, OK, for Bodard & Hale Drilling Co. OPINION DONALD R. SHARP, Bankruptcy Judge. COMES NOW before the Court for con...
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*1008 OPINION COMES NOW before the Court for consideration Certain Defendants’ Motion to Dismiss and Abstain from Hearing Plaintiffs’ Adversary Proceeding, Certain Defendants’ Motion for Determination that Adversary Proceeding is Non-Core, Certain Defendants’ Motion to Dismiss Plaintiffs’ Adversary Proceeding Pending the Resolution of Earlier-Filed Related Litigation in U.S. District Court, and ...
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DECISION This adversary proceeding arises out of and relates to this Chapter 13 case filed by Jacob L. Barr (“Barr” or “Debtor” or “Plaintiff-Debtor”) on July 26, 1993. The Chapter 13 Trustee’s motion to dismiss the case was granted at a hearing held before this Court on May 11, 1994. The order granting the motion was signed on July 6, 1994. It provided for the Debtor’s right to convert the c...
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OPINION COMES NOW before the Court the Motion to Abstain and Remand and Brief in Support Thereof (“Remand Motion”) filed by the Plaintiffs in the above-referenced adversary eases (“Plaintiffs”) and the Emergency Motion of Shell Oil Company for Relief from Automatic Stay (“Lift Stay Motion”) pursuant to regular setting in Beaumont, Texas. The parties agreed that the issues in both moti...
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OPINION Comes now before the Court the Motion of Defendants NationsBank of Texas, N.A. f/k/a NCNB Texas National Bank, N.A. (“Bank”) and Federal Deposit Insurance Corporation (“FDIC”) (collectively referred to as (“Defendants”) for Sanctions pursuant to regular setting in Plano, Texas. This opinion constitutes findings of fact and conclusions of law in accordance with Fed.R.Bankr.P. 7052 and ...
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ORDER In the above cases, the United States Trustee has challenged fee practices employed by counsel for the consumer debtors. Either Manning and Associates (“Manning”) or Hessinger & Associates (“Hessinger”), represented debtors in the Chapter 7 bankruptcies. Counsel argue their post-petition receipt of fees based on pre-petition retainer agreements, including cashing checks obtained pre...
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MEMORANDUM OPINION ON TRUSTEE’S OBJECTION TO HOMESTEAD EXEMPTIONS The matter before the court is David Gro-choeinski’s, trustee in the above captioned bankruptcy cases (“Trustee”), Objection to Larry Miller’s (“Larry”) and Barbara Miller’s (“Barbara”) homestead exemption claims. Larry and Barbara are two individual Debtors under two related Chapter 11 bankruptcy cases who are collectively...
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MEMORANDUM OF DECISION: THE MOTION FOR ENTRY OF AN ORDER RELEASING AND DISCHARGING THE MEMBERS OF AND PROFESSIONALS TO THE OFFICIAL BONDHOLDERS’ COMMITTEE I. Introduction On November 8, 1998, the confirmation hearing on the Debtors’ First Amended Plan of Reorganization as Twice Modified (“Plan”) commenced. On that day, the Official Committee of Bondholders of Envirodyne Indu...
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MEMORANDUM OPINION REGARDING CREDITOR’S MOTIONS TO COMPEL STATEMENT OF INTENTION The issue before the court is whether a purchase money secured creditor may compel the debtor to file a statement of intention under 11 U.S.C. § 521(2)(A). Jurisdiction exists pursuant to 28 U.S.C. § 1334. These matters are core proceedings pursuant to 28 U.S.C. § 157(b)(2)(A). PROCEDURAL BACK...
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MEMORANDUM OPINION Harley Fincher and Tammy Fincher, Plaintiffs, filed on September 14, 1993, a “Complaint to Determine Dischargeability of Debt and Objection to Discharge of Debtor Terry Holt.” Terry Holt, Defendant, filed an answer on October 27, 1993. Plaintiffs filed an amendment to their complaint on July 22, 1994. 1 A trial was held on July 26, 1994. The Court, having...
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DECISION ON DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S SECOND AMENDED COMPLAINT This is an adversary proceeding in which Plaintiff, Flexi-Van Leasing, Inc. (“Flexi-Van” or “Plaintiff’) seeks to have its debts owed by the Defendant, Joseph F. Perez, the Debtor herein (“Perez” or the “Debtor”), deemed nondischargeable pursuant to Bankruptcy Code sections 1 523(a)(2)(A), 523(a)...
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DECISION ON MOTION TO EXPUNGE OR REDUCE NEW YORK STATE REAL PROPERTY GAINS TAX AS NOT ENTITLED TO PRIORITY STATUS PURSUANT TO 11 U.S.C. SECTION 507(a)(7) This matter is before the Court pursuant to a motion by E. Thomas Williams, Jr. (the “Debtor”) to expunge and/or reduce the claim of the New York State Department of Taxation and Finance (the “Department of *460Taxation”) for, inter alia, amoun...
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OPINION The Application for Interim Compensation for Counsel to Debtors (“Application”), filed by Franklin Harris Hytken (“Applicant”), came on for hearing pursuant to regular setting. This opinion constitutes findings of fact and conclusions of law in accordance with Fed.R.Bankr.P. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND Debtors retained Appl...
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OPINION Comes now before the Court the Motion of Bruce and Jennifer Christie (“Debtors”) to Compel Compliance with Stipulation or Alternatively for Relief Under Rule 60(b)(3) 1 (“the Motion”) pursuant to regular setting in Plano, Texas. This opinion constitutes findings of fact and conclusions of law. FACTUAL AND PROCEDURAL BACKGROUND Debtors filed for relief under chapter 11 of the C...
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OPINION AND ORDER DENYING MOTION TO REOPEN CASE AND DISMISSING MOTION TO ABSTAIN AS MOOT This matter is before the Court upon Christopher F. Jones’ (the “Debtor”) motion to reopen his prior bankruptcy case (the “Motion”) to which creditor Joseph L. Young (‘Young”) has filed an objection. Young has further moved that the Court abstain from hearing the Debtor’s bankruptcy case. The Court fi...
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OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter is before the Court upon the adversary complaint (the “Complaint”) of Blaine F. Heeter (“BFH”), Frances Heeter (“Frances”) and Blaine Heeter, II (“BH2”) to except the debt of David M. Birt (“Birt”) from discharge under 11 U.S.C. § 523(a). The Court finds that the Complaint is well taken and that Birt is liable to BFH and Frances ...
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173 B.R. 799 (1994) In re William H. SHEPPARD, Debtor. Ralph GREEN d/b/a New Motors, Movant, v. William H. SHEPPARD, Respondent. Bankruptcy No. 93-75139. United States Bankruptcy Court, N.D. Georgia, Atlanta Division. October 25, 1994. *800 Debbie C. Pelerose, Atlanta, GA, for movant/creditor. William H. Sheppard, pro se. CONTESTED MATTER DECISION ON CLAIMANT'S MOTION TO DISMISS, OBJECTION TO CO...
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MEMORANDUM AND ORDER ON COMPLAINT FOR AN INJUNCTION AND APPLICATION FOR PRELIMINARY INJUNCTION BACKGROUND The plaintiff, Turbine Technologies, Inc., seeks to enjoin the Internal Revenue Service (“IRS”) from filing a notice of tax lien against its assets. The relevant facts, which are undisputed, are drawn from (i) the Stipulation of Facts by Turbine and the IRS, filed August 24, 1994...
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In this Chapter 11 proceeding, counsel for the debtor has filed an application for an interim allowance of compensation and reimbursement. Specifically, the firm of Damon & Morey seeks fees in the amount of $69,796 for the period from December 17, 1993, through April 30, 1994, and the reimbursement of expenses incurred during this same period in the amount of $7,979.17. The Office of the United...
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ORDER DENYING CONFIRMATION OF PLAN The matter before the Court is confirmation of the Second Amended Chapter 11 Plan of Reorganization proposed by Concrete Designers, Inc., dba Harry Wellnitz Co., Debt- or-in-Possession herein (“Debtor”). Objections to confirmation of Debtor’s Plan of Reorganization were filed by John H. Crites (“Crites”), Karl A. Demmler (“Demmler”), and Taggart Building Sup...
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MEMORANDUM OF DECISION GRANTING DEBTORS’S EXEMPTION Debtor seeks to exempt a cash management account, savings account, and accounts receivable, all of which derived from the proceeds of an insurance policy on her late husband’s life, under 12 V.S.A. § 2740(19)(H). Trustee filed a timely objection to the proposed exemption under 11 U.S.C. §§ 522(a)(1) and Fed.R.Bkrtcy.P. 4003(b). 1 We overrule...
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MEMORANDUM OPINION Before the Court is a Complaint to Compel Turnover of Property filed by Faith Missionary Baptist Church (“FMBC”). FMBC alleges that the Internal Revenue Service (“IRS”) wrongfully levied against property belonging to FMBC in order to satisfy the personal tax liabilities of Roger and Nan Gorham (hereafter sometimes referred to collectively as the “Gorhams”). Accordingly, FMBC ...
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MEMORANDUM OPINION ON TRUSTEE’S MOTION TO DETERMINE WHETHER PROPERTY IS PROPERTY OF THE ESTATE On November 9, 1993, this court held a hearing on the Trustee’s Motion to Determine Whether Property is Property of the Estate filed in the above-referenced case. In reality, such a determination should be made in an adversary proceeding as required by Bankruptcy Rule 7001(2). The issue, however, ce...
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MEMORANDUM OF DECISION First National Bank of Damariscotta (“First National”), holding a claim secured by a mortgage on the debtors’ principal residence, has moved for relief from § 362’s automatic stay. 1 Having considered the evidence, including the parties’ post-hearing stipulations, for the reasons set forth below, First National’s motion is granted, but only to the ext...
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MEMORANDUM OPINION Madalene McCauley, Debtor, Movant, filed a “Motion to Require Turnover of Property” on May 20,1994. Movant filed a supplemental motion on July 1, 1994. A hearing was held on July 21, 1994. The Court, having considered the record and the arguments of counsel, now publishes this memorandum opinion. Movant purchased a 1991 Plymouth Grand Voyager van. Chrysler Credit Corporat...
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OPINION This ease raises three questions: Is it a violation of the automatic stay for a credit union to “freeze” a debtor’s deposit account for the purpose of preserving the credit union’s claimed right of setoff against the debt- or’s loan indebtedness? May the account now be set off against the entire debt balance *966 even though at the filing the debtor was current on...
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OPINION The Chapter 7 trustee filed an adversary proceeding seeking to recover certain renewal commissions paid to the debtor postpetition. The bankruptcy court denied the trustee’s motion for summary judgment and granted the debtor’s motion for summary judgment, determining that the renewal commissions represented earnings from postpetition services of the debtor that were not property o...
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*138 MEMORANDUM OPINION The Court decides that it lacks jurisdiction over this adversary complaint 1 but in the alternative, even if it has jurisdiction, it should abstain. Debtors filed for relief under Chapter 13 on May 18,1993. Their Schedule A lists real property located at 2804 16th Street, Leavenworth, Kansas, at a value of $73,000.00. While the Summary ...
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BACKGROUND On January 5, 1994, the Debtor, Joan M. Bedell (the “Debtor”), filed a petition initiating a Chapter 13 case. On her schedules the Debtor listed her ownership of a residence at 97 Clark Street, Canadaigua, New York (“Clark Street”) and indicated that the property had a value of $63,000.00 and was subject to the following liens: (1) a mortgage in favor of the Resolution Trust Cor...
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*475 DECISION ON MOTIONS FOR SUMMARY JUDGMENT IN THE INSTANT PREFERENCE ACTIONS Service Merchandise Company Inc. (“Service Merchandise”) moves for summary judgment in two adversary proceedings commenced against it by the post-confirmation debtor, Child World, Inc. (“Child World”). In these adversary proceedings, Child World seeks to avoid as preferential two pre-petition rental p...
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ORDER Debtors appear by their attorneys, Gene A. DeLeve, Max Jevinsky and Todd A. Norris of the law firm of Berman DeLeve Ku-chan & Chapman, Kansas City, Missouri. The Official Unsecured Creditors’ Committee (Creditors’ Committee) appears by its attorney, Carl R. Clark of the law firm of Lentz & Clark, P.A., Overland Park, Kansas. This case began with the filing of an involuntary...
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MEMORANDUM OPINION BACKGROUND Adventist Living Centers, Inc. (“Debtor”) leased a nursing home facility located in *509 Belleville, Illinois known as Notre Dame Hills Convalescent Center (“Notre Dame”) from Belleville Associates, Ltd. pursuant to a ten-year lease commencing on January 1, 1987 (the “Lease”). Belleville Associates, Ltd. was the owner of the real propert...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING TRIAL This Adversary Complaint relates to Debt- or’s bankruptcy proceeding filed under Chapter 11 of the Bankruptcy Code, 11 U.S.C. Debtor here seeks adjudication of conflicting lien claims over rent and non-rent revenues from the hotel owned by Debtor. Trial was held. Having considered the oral testimony, documentary evidence, stipula...
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MEMORANDUM OF OPINION THIS CAUSE is before the Court for consideration of Pennington and Haben, P.A.’s fee application and the Debtors’ objection to the fee application. The Court having heard argument of counsel, and having reviewed the pleadings and other documents in the file, finds that Pennington and Haben, P.A. is entitled to the full amount of compensation requested in the fee applicatio...
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MEMORANDUM OPINION ON THE ALLOWANCE OF ADMINISTRATIVE EXPENSES THIS CAME on for hearing on the motion of the Chapter 7 trustee, Mark Freund to determine the allowance of administrative expenses in the Chapter 11 case which preceded the conversion of this case to Chapter 7. David Fleming, Esq., attorney for the debt- or-in-possession during the administration of the Chapter 11 has obje...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on a Motion for Summary Judgment filed by the United States of America (“United States”), and a Cross-Motion for Summary Judgment filed by the debtor. The underlying adversary proceeding was initiated by the filing of a Complaint by Debtor to Determine Dis-chargeability of Debt. A hearing was held on the motions on June 27...
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MEMORANDUM OPINION This matter came before the Court on an Objection to Claim filed by the Trustee, Wilbur Babin. The Trustee objects to a claim filed by the Internal Revenue Service (“IRS”). A hearing was held on the Objection, at which time the Court heard the statements of the Trustee and counsel for the IRS. Upon consideration of these statements, the record in the case and the applicable la...
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MEMORANDUM I. BACKGROUND On July 28, 1982, Hemingway Transport, Inc. (“Hemingway”) and its wholly owned subsidiary, Bristol Terminals, Inc. (“Bristol”) (collectively, the “Debtors”), filed voluntary petitions under Chapter 11 of the Bankruptcy Code. The Chapter 11 cases were converted to cases under Chapter 7 in November of 1983. After notice and a hearing, in April of 1987, the two ...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Debt- or’s Amended Objection to Claim 4 (Fleet Mortgage) (Doc. No. 33). Claim 4, filed by Fleet Mortgage Corporation included attorney’s fees and costs incurred in this bankruptcy in the amount of $590. A hearing was held on this issue on August 31, 1994. After hearing the evidence presented, the Court makes th...
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MEMORANDUM OF DECISION ON OBJECTION TO DISCHARGE I. ISSUE The matter before the court is a complaint brought by the plaintiff, Robert Rogers, the former husband of Antoinette Aiello, also known as Antoinette Rogers, the debtor, objecting to the granting of her discharge. The plaintiff relies, for the most part, on Code § 727(a)(4)(A) (“(a) The court shall grant the debtor a discharge un...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon an Application for Fees and Expenses filed by the law firm of Lowndes, Drosdick, Doster, Kantor & Reed who represented creditor California Federal in this bankruptcy. California Federal also filed Claim Number 18 seeking attorney’s fees and costs for bankruptcy in the amount of $8,316.89 for services rendered b...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case came before the Court on the United States of America’s (Internal Revenue Service) Motion to Dismiss with Prejudice for Bad Faith Filing. A hearing was held on October 5, 1994, and based upon the evidence presented the Court enters findings of fact and conclusions of law: Findings of Fact 1. The debtor filed a series of f...
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This is a Chapter 7 case in which an Adversary Proceeding was commenced by the plaintiff, Marine Midland Bank (“Marine”) under 11 U.S.C. § 523(a)(6) 1 seeking a declaration that two sanction awards in favor of Marine 2 must survive discharge in this lawyer-debtor’s voluntary, personal bankruptcy. By Motion for Summary Judgment, Marine argues that such declaration is comman...
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OPINION I The Debtors in these two appeals filed Chapter 13 plans which separately classified nondischargeable student loans. In both cases, the plans provided for 100% payment on the student loans, with much smaller percentages on the remaining unsecured claims. The trustee objected to both plans on the ground that the classification, and different treatment, constituted unfair disc...
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OPINION The debtors, David and Shirley Ham, seek to dismiss a complaint filed by the plaintiffs, Emery Toth, Andrea Williams, and Donald Rhule, to determine the dischargeability of certain debts. The debtors assert that the plaintiffs’ complaint was not filed within the limitation period prescribed by Bankruptcy Rule 4007(c) and is, therefore, time-barred. The debtors filed their Chapter 7 ...
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MEMORANDUM This adversary proceeding is before the court on the complaint of Thomas E. DuVoi-sin, Liquidating Trustee, alleging that defendants, Anne B. Wilde and her two children, Ashley A. Wilde and Byron B. Wilde, received preferential transfers from the debtor, Southern Industrial Banking Corporation (“SIBC”), which are avoidable as preferences under 11 U.S.C. § 547(b). Having considered th...
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*935 MEMORANDUM OF DECISION Background. The following undisputed facts appear in the record. In October of 1987 Plaintiffs Edward and Julianna Kudma purchased a mobile home and the real property upon which it was located. Between January of 1990 and June 28, 1998, the date Plaintiffs filed for Chapter 7 relief, several judgments were obtained by creditors and recorded as hens against Plai...
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MEMORANDUM OF DECISION On July 27, 1994, Debtor Citicorp Park Associates (“Citicorp”) filed for protection under Chapter 11 of the Bankruptcy Code. Citicorp’s main asset consists of a parcel of land in South Portland together with the buildings thereon. Aetna Life Insurance Company (“Aetna”) has a secured claim against Citicorp for approximately $8.9 million, and Citicorp asserts that the val...
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ORDER On the 1st day of September, 1994, the Chapter 13 Plan; Objection by Melvin and Enola Chilcoat; Response by the Debtors; Response by the United States Trustee; Objection to the Claim of Melvin and Enola Chilcoat by the Debtors; and, Response by Melvin and Enola Chilcoat came before the Court for hearing. Counsel appearing in person were Robert Inglish for the Debtors; Lonnie Eck, Chapte...
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OPINION Before the Court is a contested matter initiated by the Debtor’s Answer objecting to PECO Energy Company’s (“PECO Energy” or “PECO”) Motion for Direction of Payment of Administrative Expense. PECO Energy’s Motion requests an order allowing PECO an administrative expense in the amount of $2,150.27 for post-petition utility services which PECO claims were provided to the Debtor. PECO also ...
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MEMORANDUM The Plaintiffs, Danny and Cathy Lail, initiated this adversary proceeding by filing a Complaint on December 27, 1993, alleging that the debtor is liable for his business associates’ conduct and that the resulting obligation is nondischargeable under 11 U.S.C.A. § 523(a)(2)(A) or (a)(4) (West 1993). The parties agreed at trial to rely on the Chancery Court of Roane County, Tennessee...
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OPINION The question presented by this case is whether an installment contract for the sale of a business to the debtors is an executory contract assumed by the debtors under § 365 or whether it constitutes a financing device granting the seller a secured claim that may be modified in the debtors’ Chapter 12 plan. Approximately a year prior to bankruptcy, debtors Larry and Linda ...
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ORDER ON OBJECTION TO AMENDED PROOF OF CLAIM OF FEDERAL NATIONAL MORTGAGE ASSOCIATION The matter before the Court is the Objection filed by Debtor, Ridgewood Apartments of DeKalb County, Limited (“Debtor”) and Cardinal Realty Services, Inc. (“Cardinal”), the Debtor’s general partner, to the Amended Proof of Claim of Federal National Mortgage Association (“Fannie Mae”). Fannie Mae’s or...
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MEMORANDUM OPINION ON SARAH J. HOHENBERG’S MOTION FOR SUMMARY JUDGMENT These two adversary proceedings were consolidated by a consent order entered May 24, 1994. Sarah J. Hohenberg has now filed a verified motion for summary judgment, with supporting memoranda, to approve a consensual marital dissolution agreement between Sarah J. Hohenberg and the debtor Julien J. Hohenberg, which motion furth...
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INTRODUCTION Before the .court is a motion by Defendants New Castle Associates, et al. to dismiss the Complaint filed by Plaintiff-Debtor McMahon Books, Inc. Plaintiff seeks declaratory relief pursuant to 28 U.S.C. § 2201, 1 injunc-tive relief pursuant to 11 U.S.C. § 105(a), 2 and relief pursuant to the Delaware Landlord-Tenant Code, 25 DelC. ...
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ORDER DENYING MOTION TO AVOID LIEN THIS CAUSE is before the Court upon the debtor’s Motion to Avoid Lien, filed on July 7, 1994. The debtor seeks to avoid federal tax liens assertedly because they impair an exemption in their homestead property. The parties have stipulated to the facts and submitted briefs in support of their respective positions. The Court has jurisdiction over this matter p...
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ORDER DENYING MOTION TO SET ASIDE ORDER TO ALLOW CLAIM AND OBJECTION TO CLAIM THIS CAUSE is before the Court upon the debtor’s “Motion to Set Aside Order to Allow Claim and Objection to Claim” filed on May 25, 1994. The parties have submitted a stipulation of fact and have briefed the issue of whether the United States may claim interest accruing during a prior bankruptcy case which was dismi...
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OPINION AND ORDER ON RELIEF FROM THE AUTOMATIC STAY AND COMPLAINT FOR DECLARATORY RELIEF Before the Court are several matters which involve essentially similar legal issues. Ottawa Properties, Inc. (“Ottawa”) filed a motion for relief from stay in the chapter 11 case of Concord Square Apartments of Wood County, Ltd. (“Debtor”). The Debtor opposes that motion. The Debtor also has initiated an ...
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ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT THIS CAUSE is before the Court upon the Defendants’ Motion for Partial Summary Judgment, filed on September 2, 1994. The trustee and the intervenor filed responses to the motion and the defendants filed a reply on October 5, 1994. Between 1979 and 1981, the debtor, as an employee of Shoney’s, Inc. became a joint venturer with oth...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon the plaintiff’s Motion for Summary Judgment, filed on September 19,1994. Pursuant *914 to Court request, the debtor defendant filed a response on September 27, 1994. The plaintiff seeks to have a debt held nondis-ehargeable, pursuant to Bankruptcy Code section 523(a)(6), on the grounds that the...
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MEMORANDUM OF OPINION ON LIEN PRIORITY In this adversary proceeding the court is called upon to determine the validity and priority of liens held by The State National Bank, Big Spring, Texas (National Bank) and The United States Internal Revenue Service (IRS) 1 The Court finds the IRS lien has priority. *225 FACTS By order filed September 29, 1986 in the 39t...
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OPINION A Chapter 7 1 debtor had his discharge revoked based on fraud and concealment of insurance proceeds. The debtor appeals. We REVERSE. I. FACTS The debtor/appellant, Ron Dean Bowman (“Bowman”) received his Chapter 7 discharge on October 1,1992. On October 19,1992, the appellee, Belt Valley Bank (“Belt Valley”) filed a complaint to revoke Bowman’s dis ...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on the Motion for Order Terminating Automatic Stay filed by Monroe Bank & Trust and Debtor’s Objection. At the Hearing, the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in making its decision. The Court has reviewed the entire record in the case. Based upon that review, an...
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In this Chapter 13 proceeding, Mary Belk-nap has objected to the consideration of a plan filed on behalf of her former husband, Michael E. Belknap. At issue is whether the debtor can satisfy the debt limits established under the applicable provisions of section 109(e) of the Bankruptcy Code. Specifically, Mary Belknap contends that certain alimony obligations are to be credited against the limits...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtors’ Motion for Leave to Dismiss and the Trustee’s Objection. A Hearing was held, and the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. Both parties also filed Post-Hearing Memoranda. The Court has reviewed the arguments of Counsel, e...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court on Plaintiffs Motion and Brief for Summary Judgment to Deny Discharge of Debts, or alternatively, to Exclude Debt From Discharge; and Defendant’s Memorandum in Opposition. The Court has reviewed the written arguments of counsel, exhibits, as well as the entire record in the case. Based upon that review, and for the followi...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtor’s Motion to Void Sheriffs Sale of Real Property of the Estate; Motion of Gale Astles for Relief From Stay and Memorandum in Opposition to Debtor’s Motion to Void Sheriffs Sale; and Motion for Relief from Stay by MIF Realty. A hearing was held on October 5, 1994. At the hearing, the parties were afforded the opportunity...
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MEMORANDUM OPINION These matters come before the Court on the motions to strike the fourth affirmative defenses of Greater Orlando Aviation Authority (“GOAA”), Jacksonville Port Authority (“JPA”), and Palm Beach County (“PBC”), (collectively referred to as the “Creditors”), and to strike their counterclaims for recoupment. The motions are brought by Sheldon L. Solow (the “Trustee”) as...
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MEMORANDUM OPINION AND ORDER This cause comes before the Court upon Plaintiffs Motion for Summary Judgment, Memorandum in Support, and Reply; and Defendants’ respective Memoranda in Opposition, Cross-Motions for Summary Judgment, Memoranda in Support, and Replies. Upon review of the written arguments of counsel, supporting affidavits, and exhibits, the Court concludes the WSOS Communi...
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MEMORANDUM OPINION AND ORDER This cause came before the Court on Plaintiffs’ Complaint to Determine Dischargeability of Debt, and Defendant’s Motion to Dismiss. A trial was held in which the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the written arguments of counsel, exhibits, relev...
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SUPPLEMENTAL OPINION REGARDING TRUSTEE’S OBJECTION TO THE IRS CLAIM This matter was brought before the Court upon the trustee’s objection to a late claim *473 filed by the Internal Revenue Service (“IRS”). Following oral argument, this matter was taken under advisement. The Court sustains the trustee’s objection and disallows the late filed claim of the IRS in its entiret...
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MEMORANDUM This matter is before the Court on a motion by Dalkon Shield Claimants Anthony, Florence and Jason Shukis to interpret the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”) and the related documents under which the Robins Bankruptcy is being managed. The Movants have requested the Court to order that: (1) The Plan requires the Dalkon Shield Claimant...
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*10 MEMORANDUM OPINION The matter before the Court is a Motion of the United States Trustee (“Trustee”) for Order Dismissing the Case and for Other Relief (“Motion”). In the Motion, the Trustee requests that the case be dismissed pursuant to 11 U.S.C. § 1307(c), that the Court assess sanctions and/or costs against the debtor and that the Court enjoin the debtor from refiling any petition in...
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OPINION Before the court is the chapter 7 Trustee’s motion for authority to sell real estate free and clear of ah hens, and an objection thereto filed by the Revenue Commissioner of Mobile County, Alabama. For reasons explained below, the County’s objection is overruled and, accordingly, the motion is granted. The Trustee proposes to sell 15,300 square feet of land zoned for hght...
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OPINION The issue before the Court is whether the Debtors’ discharges should be denied pursuant to § 727(a)(3) of the Bankruptcy Code for failure to keep or preserve records, 11 U.S.C. § 727(a)(3). The Debtor, Alan Vandewoes-tyne, was in the business of buying and selling hogs (BUSINESS). His son, Brett Vandewoestyne, also a Debtor, participated in the operation of the BUSINESS. 1 ...
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MEMORANDUM-OPINION This matter is presently before this Court on Creditor, Patricia Lannan’s (“Lannan”), Objection to Debtor’s treatment of her claim for child support arrearages without interest. Debtor, Steven W. Crable (“Crable”), takes the position that Lannan is not entitled to post-petition interest on her claim because it is an unsecured claim. Lannan, on the other hand, advances the p...
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ORDER Heard on August 3, 1994, on Healthcare Partners’ Motion for an order compelling David M. Ryan and Health Concepts, Inc. to disgorge and restore funds allegedly improperly expended under a Cash Collateral Order dated March 28, 1994, and for sanctions and contempt. Also before us for consideration is Health Concepts’ application for compensation in the amount of $40,792 for services rendered...
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*232 MEMORANDUM-OPINION This matter is presently before this Court on two related motions. The first is Debtors, Rickey H. Gifford and Shannon D. Clopton-Gifford’s (“the Giffords”), Motion to Compel Fort Knox Federal Credit Union (“the Credit Union”) to release the freeze on Debtors’ share draft account no. 9638361. The second motion is the Credit Union’s Motion to Terminate Stay. Having ...
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MEMORANDUM DECISION I. Introduction. This matter came before the court on the debtors’ objection to the claim of the Internal Revenue Service (“IRS”). On the stipulation of the parties, the matter was submitted on the briefs and without oral argument. For the reasons stated in this Memorandum Decision, the unsecured and priority portions of the claim of the IRS will be disallowed as untimel...
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DECISION ON MOTIONS FOR PRELIMINARY INJUNCTIONS This matter comes before the Court upon orders to show cause dated January 26,1994, brought on by New England Marine Services, Inc. (“NEMS”) and Bunker Group Virginia, Inc. (“BGV”) (hereinafter collectively referred to as the “Debtors”) 1 seeking preliminary injunctions enjoining Water Quality Insurance Syndicate (“WQIS”) from...
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DECISION ON TRUSTEE’S COMPLAINTS TO SET ASIDE FRAUDULENT TRANSFERS Before the Court for adjudication, after trials, are two separate adversary proceedings instituted by the chapter 7 trustee of two related companies to set aside as fraudulent, the transfer of certain monies to Defendants by the Debtors. Because the facts and applicable law are so similar, these two adversary proceedin...
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MEMORANDUM OF DECISION Before the Court for decision are two motions, namely “Debtors’ Motion to Confirm Modified Plan, or in the Alternative, to Convert Case to a Proceeding under Chapter 11” (“Motion to Confirm Modified Plan”) and “Objection By G.L.B. Corp. to Debtors’ Modified Plan of Adjustment” (“Objection to Debtors’ Modified Plan”). A. Factual Background On April ...
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MEMORANDUM OF DECISION This matter came before the court on cross-motions for summary judgment filed by ORIX Credit Alliance, Inc. (plaintiff) and Bank of Tuscaloosa (defendant). Each party requests the court to find its interest in the property at issue to be superior to the other party’s interest and to resolve the priority dispute in its favor. The court has reviewed the briefs, su...
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*212 MEMORANDUM OPINION This matter comes before the Court on the complaint of the Trustee in Bankruptcy. The trustee objects to the debtors’ discharge, and asks this Court to refuse to grant a discharge pursuant to 11 U.S.C. § 727. After consideration of the record and pleadings, and of the testimony and argument heard at a trial held October 25, 1994, the Court makes the fo...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS MATTER came on for consideration upon Motion for Summary Judgment filed by Lenard J. Miller on Motion for Allowance of Administrative Expense, and Motion for *288Summary Judgment of Debtor on Objection to Administrative Claim of Lenard Miller in the above captioned case. This Court has considered all arguments and evidence consistent with a ruling on a mo...
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*734 MEMORANDUM OPINION I. INTRODUCTION The Chapter 13 standing trustee objected to the proof of unsecured claim filed by American Express Centurion Bank (“AMEX”) on the sole ground that the proof of claim was filed late. This Court holds that tardiness bars allowance of a claim. 1 Therefore, the objection is sustained and AMEX’s claim will not be allowed. ...
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MEMORANDUM OF OPINION AND ORDER This matter came before this Court upon Defendant, Blue Cross And Blue Shield of Ohio’s (Blue Cross) Motion For Summary Judgment filed pursuant to Bankruptcy Rule 7056. The Plaintiff, Richard B. Ginley (Trustee) filed a Complaint To Avoid Postpe-tition Transfer And For Return Of Property Or Its Value premised on § 549 of the Bankruptcy Code. 11 U.S.C. §...
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MEMORANDUM OF OPINION AND ORDER In this contested matter, the Court must determine whether certain conduct allegedly conducted by the Defendants, Dennis and Betsy Burlin (the Burlins) constituted a violation of the automatic stay provision of § 362(a) of the Bankruptcy Code [11 U.S.C. 362(a) ]. On March 3, 1994, co-debtors Lee and Linda Gordon (the Debtors) caused to be filed their voluntar...
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OPINION A INTRODUCTION Before us is the issue of whether this court should confirm the Debtor’s [sic] Joint Amended Second Plan of Reorganization Pursuant to Chapter 11 of Title 11 of the United States Code (“the Plan”) over the Objections of the Debtors’ largest secured creditor, Midlantic Bank, N.A., successor to Continental Bank (“the Bank”). These Objections are now confi...
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MEMORANDUM OPINION On March 31, 1994 the debtor, Lisa F. Allen, entered into an agreement to lease a Hot Point washer and dryer from Affordable Rent-to-Own, dba Rentown USA (Rentown). On April 7, 1994, about one week after leasing the washer and dryer, the debtor filed a voluntary petition under Chapter 13. Ren-town moves for a relief from stay to repossess the washer and dryer. Before de...
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OPINION DENYING APPROVAL OF STIPULATION FOR RELIEF FROM AUTOMATIC STAY WITHOUT PREJUDICE The issue before the court is whether an order should be entered which approves a Stipulation For Relief From The Automatic Stay which was submitted by the attorneys for the Debtor and the Creditor without notice to other parties in interest. 1 For the *241 reasons stated, ...
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OPINION RE: MOTIONS FOR SUMMARY JUDGMENT FOR MOOTNESS AND FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED These matters come before the court on essentially two motions for summary judgment. First, both William G. Lasich, the trustee in this matter, and Firemans Insurance Company of Newark, New Jersey (“Firemans”), the surety on the blanket bond covering chapter 7 panel...
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ORDER On September 12, 1994, the Bankruptcy Appellate Panel Clerk’s office issued a Notice of Deficient Appeal and Possible Dismissal in this appeal because the notice of appeal was filed beyond the ten day time period allowed by Federal Rule of Bankruptcy Procedure 8002. Appellant’s response to the notice of deficiency has been received and reviewed. The record indicates that the notice of a...
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OPINION The debtor attempted to modify a confirmed Chapter 11 1 plan. The bankruptcy court ruled that the confirmed plan was “substantially consummated”, thereby statutorily barring modification. The debtor appeals. We AFFIRM. I. FACTS The debtor/appellant, Antiquities of Nevada, Inc., aka Antiquities International (“Antiquities”), is a retailer in the Forum Shopping Center at Caesar’s ...
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MEMORANDUM AND ORDER ON OBJECTION TO CONFIRMATION This matter comes before the Court on the objection of California Federal Bank, FSB (“California Federal”) to confirmation of Debtors’ Chapter 11 Plan of Reorganization. A hearing to consider confirmation of the plan was held on June 9, 1994. Based upon the evidence adduced at that hearing, the briefs submitted by both parties, and applicable ...
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MEMORANDUM OF OPINION GRANTING PLAINTIFFS’ PETITION FOR PRELIMINARY INJUNCTION This adversary proceeding arises in a bankruptcy case referred to this Court by *926 the Standing Order of Reference entered in this district on July 24, 1984 and is determined to be a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (G) and (0). Accordingly, this Court is authorized to enter ...
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DECISION AND ORDER ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT Before the Court 1 is the Trustee’s motion (“Motion”) for summary judgment, granting the relief requested in his Adversary Proceeding. One defendant, Marguerite Carney (“Carney”), opposed the Motion by filing a cross-motion for summary judgment. Both motions were made pursuant to Federal Rule of Civil P...
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MEMORANDUM OF DECISION ON EXTENT OF AVOIDING POWER Bankers moves 1 for reconsideration 2 of our October 24, 1994, bench ruling denying its earlier “Motion in Limine Concerning Limitation on the Extent of the Debtor’s Avoiding Powers” under 11 U.S.C. § 544(a). That motion asked us to issue an'order ruling that Debtor’s avoiding powers ... relating to the perfection of Bankers’ lien on the ...
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MEMORANDUM, OPINION AND ORDER This matter is before the Court on a Motion for Reconsideration brought by Ziebell Water Service Products, Inc. 1 In this motion, Ziebell requests the Court to reconsider its order denying Ziebell’s motion for Leave to File Proof of Claim Instanter filed several weeks after the date set by the Court by which claims had to be filed. See ...
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MEMORANDUM OF DECISION ON MOTION AND CROSS MOTION FOR SUMMARY JUDGMENT This adversary proceeding1 involves a Chapter 11 debtor who borrowed funds from a lender who was not licensed under statute to lend by the State of Vermont. Hearn seeks to avoid the loan. Wentworth, an as-signee of the original promissory note, opposes. Both parties filed Rule 56 motions. At hearing, we denied summary judgment...
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MEMORANDUM OPINION AND ORDER OF COURT THIS MATTER came before the Court for trial on September 8, 9, and 16,1994. At the trial, Plaintiffs were represented by Peggy J. Anderson and Roman C. Pibl of Dufford & Brown, P.C. and Defendant was represented by Paul G. Quinn. I. INTRODUCTION Plaintiffs, Defendant, and several others were joint venturers in the Merham Company Joint Ventur...
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ORDER ALLOWING ATTORNEYS’ FEES AND EXPENSES Counsel for the debtor, Woner, Glenn, Reeder & Girard, has filed a Second Interim Application for Attorneys’ Fees and Expenses in the amount of $14,113.61 for the period of January 1, 1994 through March 31, 1994. Peoples State Bank & Trust Co. (Bank) objects to the form of the fee application as well as the amount of the fees charged. In par...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court pursuant to the Motion for Allowance of Attorney’s Fees filed by City National Bank & Trust (“City National”), and the objection thereto filed by Rodney Williams and Georgia L. Williams (“debtors”). A pretrial conference was held on June 20, 1994, at which time the Court took the matter under advisement. *308 ...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court to determine whether American Freight System, Inc. (“AFS”), is “no longer transporting property” within the meaning of 49 U.S.C. § 10701(f)(1)(A). *606 JURISDICTION The Court has jurisdiction over this proceeding. 28 U.S.C. § 1334. This is a core proceeding. 28 U.S.C. § 157(b)(2)(A) and (0). The Neg...
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MEMORANDUM DECISION Chrysler Creditor Corporation (“Chrysler”) objects to the confirmation of debtors’ Chapter 13 reorganization plan and requests an order from this Court dismissing the Chapter 13 case, or alternatively, modifying the reorganization plan. This matter is a core proceeding pursuant to 28 U.S.C. § 157, and the Court has jurisdiction over this matter pursuant to 28 U.S.C. § 13...
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ORDER DENYING IN PART AND GRANTING IN PART TRUSTEE’S OBJECTION TO EXEMPTIONS This matter comes before the Court by way of an objection filed by the Trustee as to two claims of the Debtor — (1) to the proceeds of a non-fully vested ERISA-qualified retirement plan with Bay Title Company (“Bay Title Plan”); and (2) an Individual Retirement Account (“IRA”). For the reasons indicated below, the ob...
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OPINION AND ORDER OVERRULING OBJECTION TO CLAIM This matter is before the Court upon Robert and Marsha Silveous’ (the “Debtors”) objection to the proof of claim filed by the United States of America (“V.A.”), on behalf of the Veterans Administration. The Court finds that the Debtors’ objection is not well taken and should be overruled. FACTS The Debtors filed a petition under chapter 13 o...
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MEMORANDUM DECISION The line of authority supporting the application of an expanded preference liability known, inter alia, as the Deprizio Doctrine has recently been precluded by legislative enactment. However, seeking to slip ■through a perceived open window in this jurisdiction, John S. Pereira, Chapter 11 Trustee (the “Trustee”) of 3204 Holland Owners Corp. (...
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OPINION AND ORDER DENYING MOTION TO MODIFY CHAPTER 12 PLAN, TO DEEM PLAN COMPLETED AND FOR DISCHARGE AND GRANTING MOTION TO DISMISS CHAPTER 12 CASE This matter is before the Court upon James and Margie Fennig’s (the “Debtors”) motion to modify their chapter 12 plan (the “Plan”), to deem Plan completed and for discharge to which Citizens Commercial Bank (the “Bank”) has filed an objection. The Bank...
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DECISION AND ORDER This matter comes before the Court on the motion of LW-SP2, L.P. (herein “LW”) for refief under 11 U.S.C. § 362(d)(1) and (2) 1 with respect to the six hotels owned by Krisch Realty Associates, L.P. (herein the Debtor). Trial was held in Harrisonburg, Virginia, on June 28, 1994. The Court has reviewed the testimony of the witnesses, the documentary evidence o...
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MEMORANDUM OPINION At Orlando, in said District on the 22nd day of June, 1994, before Arthur B. Brisk-man, Bankruptcy Judge. Andrew Baron appeared for the Debtor. John Meininger appeared for the Trustee. The Trustee objected to the Debtor’s claim of exemption pursuant to Title 11 U.S.C. § 522 and Fla.Stat.Ann. §§ 222.29-.30. *674 FINDINGS OF FACT ...
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OPINION1 Introduction Before the Court are three related matters which involve the rights or lack thereof of Dewey A. Wagner (“Debtor”) in a certain parcel of real estate which contains approximately 19 acres, located in Cranberry Township, Venango County, Pennsylvania (the “Property”). Pennwest Farm Credit, ACA (“Pennwest”) obtained judgment against the Debtor in the Venango County Court of Com...
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DECISION ON ORDER DENYING 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 affecting the administration of the estate, (E)— orders to turn over property of the estate, an...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the Court on the Debtor’s Objection to Secured Claim(s) and Petition Other Relief (sic) and Volkawagen Credit, Inc. ’s Response to Debtor’s Objection to Secured Claim(s) and Other Relief. After considering the pleadings, the stipulation and the briefs filed by each party, the Court finds that the Deb...
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AMENDED ORDER DENYING UNITED STATES’ MOTION FOR RELIEF FROM STAY AND AWARDING TRUSTEE INTERPLEADER FUNDS Before the Court are the United States’ Motions to Lift Stay or for Adequate Protection, NationsBank’s Interpleader Complaint, and the United States’ Motion for Appointment of Trustee. In the course of the proceedings the parties agreed to the appointment of a trustee and that moti...
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DECISION ON CHAPTER 7 TRUSTEE’S OBJECTION TO PROOF OF CLAIM FILED BY THE INTERNAL REVENUE SERVICE JURISDICTIONAL STATEMENT 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 admin...
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MEMORANDUM OPINION The Debtor, Cadwell’s Corners Partnership (the “Debtor” or “Cadwell’s”) is the owner of a strip shopping center subject to a first mortgage and assignment of rents held by Massachusetts Mutual Life Insurance Company (“Mass Mutual”). Upon default by the Debtor, Mass Mutual obtained the appointment of a receiver in a state court foreclosure action. Soon thereafter, th...
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Before the Court is the Chapter 7 Trustee’s objection to a proof of claim filed by the New York State Teamsters Conference Pension & Retirement Fund (“Pension Fund”). The Trustee objects to the Pension Fund’s assertion that its “withdrawal liability” claim deserves priority status pursuant to 11 U.S.C. § 507. Debtor Buf-Air Freight, Inc. (“Buf-Air”) participated in a multiemployer pension ...
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CORRECTED DECISION ON ORDER DENYING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FIDELITY FINANCIAL SERVICES (DOC. 0-1) AND GRANTING MOTION BY PLAINTIFF, CHAPTER 13 TRUSTEE, FOR SUMMARY JUDGMENT AGAINST DEFENDANT FIDELITY FINANCIAL SERVICES AND IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT FILED BY FIDELITY FINANCIAL SERVICES (DOC. 19-1) This proceeding, which arises under 28 U.S.C. § 1334...
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MEMORANDUM OF DECISION Defendant Hexcel Corporation (“Hexcel”), the above-captioned debtor, seeks partial summary judgment disallowing the claims of plaintiff Fine Organics Corporation (“Fine Organics”) for future environmental response costs. Hexcel bases its motion on 11 U.S.C. § 502(e)(1)(B). For the reasons stated below, Hexcel’s motion is granted. SUMMARY OF FACTS Fine Orga...
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ORDER ON FEE APPLICATIONS OF COOPERS AND LYBRAND THIS CAUSE came on for consideration upon Final Evidentiary Hearing of United States Trustee’s and Debtor’s Objection to Coopers and Lybrand’s Application for Compensation and Reimbursement of Expenses. The Court having considered the evidence, together with the record, makes the following findings. I. BACKGROUND OF DEBTORS The ab...
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ORDER GRANTING RELIEF FROM THE STAY The Housing Authority of the City of Decatur, Georgia moves pursuant to 11 U.S.C. § 362(d) for an order modifying the automatic stay imposed by section 362(a) to permit it to evict the Debtor from an apartment she occupies. The Housing Authority contends that on or about November 22,1993, it terminated a lease with the Debtor for nonpayment of rent in accor...
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MEMORANDUM OPINION THIS MATTER came before the Court for a hearing on October 18, 1994, regarding the Order issued September 21, 1994 by the Honorable Edward W. Nottingham of the United States District Court for the District of Colorado. The issue presented is a matter of first impression before the Bankruptcy Court. On September 21,1994, Judge Nottingham ordered, inter alia, that this Bank...
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MEMORANDUM OF DECISION Before the Court is the “Application for Compensation and Reimbursement by Petitioning Creditors in Chapter 7” (the “Compensation Application”) filed by petitioning creditors Hatchette Magazines, Inc., K III Magazine Corporation, Orchard Motorcycles, Inc., Pioneer Engineering & Manufacturing Company and the Conde Nast Publications, Inc. (the “Petitioning Credito...
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MEMORANDUM OF DECISION This Chapter 7 case is before the court on the trustee’s motion for a turnover of proper *966 ty from one of the debtors. The property in question is corporate stock. It was awarded to the debtor under an employer’s incentive plan before the filing of this bankruptcy case, but the debtor was entitled to unrestricted ownership of the stock only because h...
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MEMORANDUM OPINION ON DISCHARGEABILITY In this adversary proceeding, the court must determine whether the debt of William Ernst Berry, III (Debtor) is dischargeable. 1 Plaintiffs, approximately thirty individuals, 2 claimed the debt is nondischargeable under § 523(a)(4) of the Bankruptcy Code 3 due to the Debtor’s fraudulent misrepresentation *452 ...
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MEMORANDUM OF DECISION This Chapter 7 case is before the court on the trustee’s objection to an exemption claimed by the debtor in a workers’ compensation action. Because awards arising from such actions are exempt under Illinois law, the objection is overruled and the exemption allowed. Jurisdiction This matter is within the jurisdiction of the district court pursuant to 28 U.S.C. § 1334(b...
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MEMORANDUM OF DECISION ON SUMMARY JUDGMENT MOTIONS This matter arises from the debtor’s objection to a proof of claim filed by the United States on behalf of the Internal Revenue Service. It is now before the Court on opposing motions for summary judgment. The IRS is represented by James J. Long, Trial Attorney in the Tax Division of the Department of Justice and Lee Thompson, United States Attor...
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MEMORANDUM OPINION Plaintiff Amie M. Bast (the “plaintiff’) filed two adversaries in this ease which were consolidated for trial by Order of this Court on October 5, 1994. In Adversary No. 94-5016 plaintiff claims the debt owed to her by debtor/defendants (the “debtors”) is nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2) and (4). In Adversary No. 94-5015 plaintiff asks this Court to find ...
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MEMORANDUM OPINION Mary DeMaggio filed for chapter 13 bankruptcy relief on April 10, 1992. At the time of the filing of the petition, she owed the Town of Northwood $15,228.41 for unpaid real estate taxes and $753.64 for unpaid public assistance loans, including accrued interest at rates specified by the applicable state statutes up to the date of the filing. See Debtor’s Second Amend...
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MEMORANDUM OPINION Like most, Joni Barrows borrowed money to finance her professional education. On the date of her graduation from Marquette University dental school in May of 1987, Dr. Barrows owed a total of $78,845.00 1 under the Health Education Assistance Loan program (hereinafter “HEAL” loans) and approximately $20,000 2 in Guaranteed Student Loans from th...
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DECISION AND ORDER SUSTAINING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPT PROPERTY Before us is the Chapter 11 Trustee’s Objection to the Debtor’s Claim of Exempt Property. The issues raised and presented for determination are: (1) whether the Trustee’s objection to the Debtor’s claimed exemption of two causes of action was filed out of time; and (2) if the Trustee’s objection was timely ...
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DECISION AND ORDER Heard on July 28, 1994, on the Plaintiffs motion to determine ownership to $25,000 in insurance proceeds paid by CIGNA Property & Casualty Insurance Company (“CIGNA”), as the result of a casualty loss to the Debtors’ real property on December 21, 1991. The relevant facts, which are not in dispute, are as follows: Robert L. Natale, Jr. and David Campopiano were ...
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MEMORANDUM OPINION DEFENDANTS’ MOTION TO DISMISS The matter before the court is the Motion of Connecticut Mutual Life Insurance Company, The Cooper Companies, Inc., Presidential Life Insurance Company (“Presidential”), M D Sass RE/Enterprise Partners L.P., and Grass Partners (“Grass”) (these parties shall be collectively referred to as “Defendants”) to Dismiss the complaint o...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiffs sought in this adversary proceeding to bar dischargeability under 11 U.S.C. § 523(a)(2)(B) of certain debts assertedly due to them. They assert that Defendant misrepresented his cash flow and income on financial statements allegedly relied on in connection with loans, contending that it was half of that represented. All counts except ...
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OPINION A. INTRODUCTION The Plaintiffs in the instant proceeding have, in their post-trial briefing, narrowed the issue before us to whether this court should declare that accounts receivable generated by their home health care services performed on behalf of the Debtor hospital are not property of the Debtor’s estate because they constitute the res of a constructive trust cr...
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MEMORANDUM OF LAW This case is before the court on an adversary proceeding complaint filed by Kendall and Angela Meggs objecting on fraud charges to the debtor, Verner M. Booth’s, discharge of his obligation to them. After reviewing the evidence heard at trial and the briefs of the parties in the context of applicable law, the court finds that the Meggs’ $13,176.95 claim, based on a s...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of the National Enterprises, Inc. Liquidating Trust to avoid and recover, pursuant to 11 U.S.C. §§ 547 and 550, a transfer made by the debtor to Tee-Lok Corporation. This is a core proceeding, over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(F) and 1334. The parties have stipulated to the facts, su...
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MEMORANDUM OF OPINION This adversary proceeding relates to the bankruptcy case of the defendant, Debtor Thomas R. Volpert, Jr. (“Debtor” or “defendant” or “Volpert”), filed under Chapter 7 of the Bankruptcy Code. The Plaintiff, People of the State of Illinois, ex rel. Secretary of State George Ryan, by and through Attorney General Roland W. Burris (“State” or “Attorney General”), file...
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ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiffs complaint seeks a declaration that defendant is barred from seeking to collect certain taxes due to its confirmed plan. It has moved for summary judgment under Fed.R.Bankr.P. 7056. Effectively, the Court is presented with cross motions for summary judgment. 1 STATEMENT OF THE FACTS Hollytex, a manu...
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*6 DECISION AFTER TRIAL This Adversary Proceeding arises under 11 U.S.C. §§ 542 and 546(c) and involves the business relationship between the Debtor and Hiross Industries. Although the two companies occupied the same building when Morrison commenced this voluntary Chapter 11 case, they only had two official affiliations. First, Morrison leased space from Hiross, which it used as its storage...
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ORDER The matter being considered here is the DefendanVDebtor’s motion for an extension of time to file a notice of appeal. This Order is entered after consideration of the record as a whole. On October 7, 1994, the Court entered an Order that, in part, granted a money judgment against the Defendant/Debtor. Pursuant to Rule 8002(a), the last day to file a notice of appeal was October 17, 19...
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MEMORANDUM OPINION ON FIRST AND FINAL APPLICATION OF McNERY & VOELKER, P.C. FOR COMPENSATION FOR THE PERIOD AUGUST 2,1993 THROUGH FEBRUARY 28, 1994 Came on for hearing on April 20, 1994 the First and Final Application of McNery & Voelker, P.C. for Compensation in the above-styled and numbered case. After hearing the evidence and arguments of counsel, the court took the matter under ad...
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AMENDED MEMORANDUM OPINION 1 Plaintiff, Soneet R. Kapila, the Trustee for the bankruptcy estate of Data Lease Financial Corporation (“Trustee” or “Kapila”), has filed a motion for summary judgment on a complaint against the Defendant and Debtor in this case, Roy W. Taimo (“Debtor” or “Taimo”) to except a debt from discharge. The complaint asserts that a debt arising from an...
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*359 MEMORANDUM OF DECISION Before the Court is the “Motion of Howard Spring, as General Partner of the Lydig Shopping Center (the “Landlord”) to Compel Debtor to Assume or Reject Lease and for Immediate Payment of Postpetition Rent” (the “Landlord’s Motion”). At the hearing on the Landlord’s Motion, all of the issues, save one, were resolved by agreement of the parties. The narr...
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OPINION A INTRODUCTION In the aftermath of confirmation of the plan of reorganization and closure of the Chapter 11 bankruptcy case of a well-known franchisor of video rental stores, WEST COAST VIDEO ENTERPRISES, INC. (“the Debtor”), MICHAEL and MARILYN WILLIAMS (“the Movants”), former franchisees of the Debtor, seek to reopen the case to determine their rights to make a late...
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MEMORANDUM OPINION At Orlando, in said District on the 15th day of August, 1994, before Arthur B. Brisk-man, Bankruptcy Judge. Stephen Milbrath and Peter Hill appeared for the Debtor. Michael Levin appeared for LSL Biotechnolo-gies, Inc. Debtor seeks confirmation of his Chapter 13 plan pursuant to 11 U.S.C. § 1325. LSL Biotechnologies, Inc. moved to dismiss. FINDINGS OF FA...
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MEMORANDUM This Memorandum addresses the Trustee’s Motion for Summary Judgment dated September 19,1994, and the Defendants’ Motion for Summary Judgment filed on October 6, 1994. The determinations and orders in this *290 matter are entered after a consideration of the record as a whole. This Adversary Proceeding is based upon an Amended Complaint to Enforce the Stay ...
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MEMORANDUM OPINION Several matters are before the court at this time. Richard Kronz and Sylvia Kronz (the “Kronzes”) seek a determination at Adversary No. 93-2576-BM as to the validity, priority, and extent of their mortgage lien against real property located at 406 Cubbage Street and 117 East Mall Plaza in Carnegie, Pennsylvania. Debtors deny that the lien is valid and alternati...
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MEMORANDUM OF DECISION The matter before the court is a Motion for Summary Judgment filed by the defendant, the United States of America, on behalf of its agency, the Internal Revenue Service (IRS), in an action brought by William Gail Jones, Jr. (Debtor) to determine the dis-chargeability of certain of his tax debts. The Debtor filed a response to the IRS’s motion, and the court took the...
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MEMORANDUM OPINION I. INTRODUCTION BOSP Investments and BOMAT Investments (collectively, “BOSP”) request the payment of administrative expenses by this estate for the following: (1) attorney’s fees and costs in connection with the defense of a lawsuit brought by entities controlled by the Debtor; (2) management fees paid to entities controlled by the Debtor after BOSP terminated ...
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JOINT DECISION ON MOTION REGARDING ELECTION OF TRUSTEE Factual Background The relevant and undisputed chronology of these cases is as follows: August 5, 1994 — John J. Sforza (“Sforza”) and Alfred L. Maurer (“Maurer”) (collectively the “Debtors”) filed voluntary petitions under Chapter 7 of the Bankruptcy Code. They each scheduled the American National Red Cross (the “Red Cross”) as a cre...
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OPINION This matter came before the court upon objections to confirmation of the debtors’ chapter 13 plan by the State of Oregon, Adult and Family Services Division (creditor). The creditor is represented by Bonnie Canary and the debtors are represented by Caroline Cantrell, both of Portland, Oregon. The creditor is the holder of an allowed unsecured claim against one of the debtors, Candi Co...
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DECISION ON MOTION FOR SUMMARY JUDGMENT Suzanne Myers (“Myers”) filed her original petition in this case under Chapter 7 on December 18, 1992. On April 27, 1993, the case was converted to one under Chapter 13. In this adversary proceeding, filed June 20, 1993, she seeks relief against the Federal Home Loan Mortgage Co. (commonly, and herein, called “Freddie Mac”) and Century Mortgage...
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ORDER OF REMAND This cause came before the Court upon the Motion to Remand, filed by the plaintiff on November 15, 1994, to which the defendant Larry Cummins, responded on November 22, 1994. On November 10, 1994, Larry Cum-mins filed a Notice of Removal of litigation *1007 pending in the state court since 1991. The notice of Removal averred that the complaint was filed on...
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RETAINED PROCEEDING BLACKWELL N. SHELLEY, Bankruptcy Judge. Contested Matter MEMORANDUM This matter is before the Court on the Daikon Shield Claimants Trust’s (“Trust”) motion to interpret, in part, the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”) and the related documents under which the Robins Bankruptcy is being managed. The Trust requests the Court t...
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MEMORANDUM Several matters are before the Court: two motions for relief from the automatic stay, one filed by Federal Home Loan Mortgage Corporation (“Freddie Mac”) and the other by First NH Mortgage Corporation (“First NH”), as well as Freddie Mac’s objection to confirmation of the Debtor's Chapter 13 plan. The facts are not in serious dispute, although the Debtor’s proposed treatment of the u...
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ORDER GRANTING MOTION FOR SUMMARY JUDGMENT THIS CAUSE is before the Court upon a Motion for Summary Judgment, filed on August 26,1994, by the defendants. Previously, upon a sua sponte review of the file, the Court directed the parties to brief the issue of whether this adversary proceeding was barred by either the doctrine of collateral estoppel or res judicata. Both...
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ORDER GRANTING APPLICATION TO HIRE ATTORNEY THIS CAUSE is before the Court upon the debtor-in-possession’s Application for Order Authorizing Retention of Special Counsel filed on September 30, 1994, pursuant to 11 U.S.C. § 327(e). The debtor seeks to hire John W. Hall, 1 a distinguished attorney specializing in criminal law, for the special purpose of representing the debto...
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ORDER GRANTING MOTION TO REOPEN THIS CAUSE is before the Court upon the Motion to Reopen, filed on July 14, 1994, to which the debtor responded on August 11, 1994. Hearing on the matter was held on November 22, 1994, after which the Court made a ruling on the record. This Order is issued pursuant to the statements made by the Court at the hearing. The United States seeks to reopen the case, purs...
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DECISION AND ORDER GRANTING SUMMARY JUDGMENT TO INTERNAL REVENUE SERVICE, DENYING “DEBTORS’ AMENDED OBJECTION TO PROOF OF CLAIM OF INTERNAL REVENUE SERVICE,” AND ALLOWING UNITED STATES’ CLAIM Before the court is the United States’ motion for summary judgment (Doc. #27). The court has jurisdiction pursuant to 28 U.S.C. § 1334 and the standing order of reference entered in this district. This mat...
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MEMORANDUM The question is whether a claim for property damage can be nondischargeable under § 523(a)(9) 1 of the Bankruptcy Code. Only claims for personal injury or wrongful death can be nondischargeable under 11 U.S.C. § 523(a)(9); property damage claims are outside the scope of that section. The following are findings of fact and conclusions of law. Fed.R.Bankr.P. 7052. I. On February ...
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DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT and CREDITOR’S OBJECTION TO CHAPTER 13 PLAN 1. PROCEDURAL BACKGROUND The Debtors, Vivian P. and Fannie M. Brown (the “Debtors”), seek confirmation of their Third Amended Chapter 13 Plan (the “Plan”) and move for summary judgment in their adversary proceeding against Shore-wood Financial, Inc. (“Shorewood” or the “mortgagee”). In their adversary c...
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ORDER This matter comes before the Court on the Motion for Relief from the Automatic Stay or, in the Alternative, Allowance of an Administrative Expense Claim, filed in this case by Richard Fazio (hereinafter “Fazio”). By his Motion, Fazio seeks authority to enforce *1012 an allegedly postpetition claim against Growth Development Corporation (hereinafter “Debtor”), an act...
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MEMORANDUM I. INTRODUCTION The matter before the Court is the objection filed by the Chapter 7 Trustee (the “Trustee”) to the Debtor’s claimed exemption in individual retirement accounts. The objection raises the following issue: Is property held in an individual retirement account (“IRA”) exempt from property of the estate pursuant to 11 U.S.C. § 522(d)(10)(E), and, if so, to what extent is ...
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*39 MEMORANDUM & ORDER The plaintiff commenced the above-entitled adversary proceeding by Complaint filed on June 6, 1994, seeking to have obligations stemming from a state court divorce decree as well as expenses associated with its enforcement declared nondischargeable pursuant to 11 U.S.C. § 523(a)(5). The matter directly before the court arises by a motion for summary judgmen...
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MEMORANDUM AND ORDER This matter arose by Complaint filed January 28, 1994, with the plaintiffs/Debtors claiming the defendant Federal Crop Insurance Corporation (FCIC), effectuated a pre-petition setoff which constitutes a recoverable preference. The plaintiffs moved for summary judgment and the parties, by stipulation, have agreed that no genuine issue of fact exists and the issue may be re...
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MEMORANDUM & ORDER The plaintiff-creditor, First National Bank of McClusky (Bank), commenced the above-entitled adversary proceeding by Complaint filed on September 20, 1993, requesting that the defendant-debtor, Randy Zinke (Zinke), be denied a discharge generahy pursuant to 11 U.S.C. § 727(a)(2) and (a)(4). In the alternative, the plaintiff seeks to have outstanding prepetition indebted...
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*861 DECISION ON TRUSTEE’S MOTION FOR PERSONAL IMMUNITY AND ALTERNATIVE MOTION TO ABANDON PROPERTY Under the court’s consideration is the Trustee’s emergency motion requesting that the court grant him authority to operate the estate’s property with personal immunity for violation of local housing regulations and common law tort liability to the extent caused by the estate’s e...
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AMENDED MEMORANDUM DECISION This matter is before the court on the motion of the United States Trustee to surcharge the chapter 7 trustee the sum of $3i,456.03. 1 Statement of Facts On July 10, 1992, Michelle Evon Rollins filed a voluntary chapter 7 petition. Her schedules, particularly Schedule B, indicated that she was entitled to receive, prior to the commencement of ...
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MEMORANDUM DECISION This matter comes before the court on defendant’s motion to dismiss the above-referenced adversary proceedings. The motion was heard on July 7, 1994. Facts On April 1,1992, the debtor, Catwil Corporation (“Catwil”), filed its voluntary Chapter 11 petition. About two years later, on March 7, 1994, this Court authorized the Official Committee of Unsecured C...
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AMENDED MEMORANDUM DECISION ON WESTERN FARM CREDIT BANK’S MOTION TO ALTER OR AMEND ORDER DISMISSING CASE AND/OR FOR RECONSIDERATION This matter comes before the court on Western Farm Credit Bank’s (“Bank”) motion to alter or amend and/or for reconsideration of the court’s order dismissing debtors' Chapter 12 case. Introduction After four years as debtors under Chapter 12 and...
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MEMORANDUM & ORDER The Chapter 7 Trustee, Phillip D. Armstrong (Trustee), commenced the above-entitled action by Complaint filed on February 17, 1994, seeking to avoid the security interests given by the debtors to Dakota Western Bank of Bowman (Bank) in specified CRP payments and oil royalty payments. 1 The Trustee essentially asserts that the Bank’s security interests in the ...
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ORDER DENYING NORMAN TALMO’S MOTION TO DISMISS Defendant Norman Taimo filed an Amended Motion to Dismiss (“Motion”) which was heard on December 1,1994. The Motion was filed pursuant to Fed.R.Bankr.P. 7012, and asserts that the complaint, filed by Soneet R. Kapila as Trustee (“Trustee”) of Data Lease Financial Corporation (“Data Lease”) to recover an avoided transfer pursuant to 11 U.S...
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*190 MEMORANDUM OPINION We are called upon in this proceeding to determine which of two competing claimants shall recover from debtor’s estate for shipments of calcium silicon (hereinafter “CaSi”) that Bozel Mineracao e Ferroligas (hereinafter “Bozel”) produced and debtor HH(US) ultimately sold to its own customers. Bozel and Richard Kempe, Receiver for Hofflinghouse & Company Limited (hereinaf...
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MEMORANDUM OPINION REGARDING PLAINTIFF’S MOTIONS FOR PARTIAL SUMMARY JUDGMENT David B. Tatge, the Trustee in this Chapter 7 case, filed this adversary proceeding pursuant to Bankruptcy Code section 723(a) against various partners and former partners in the debtor partnership. The Trustee seeks contribution from the defendants for the deficiency in estate assets to pay those claims on whic...
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OPINION The debtor objected to the Internal Revenue Service (“IRS”) claim on the grounds that the statute of limitations had expired and that consents executed between the tax matter partner and the IRS were invalid. In addition, the debtor attempted to set aside a closing agreement based on an alleged misrepresentation by the IRS. The bankruptcy court overruled the objection to the IRS claim. T...
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OPINION I A car dealer perfected its security interest in a motor vehicle twelve days after the security interest became effective between the parties. The bankruptcy trustee brought an action to avoid the security interest pursuant to Bankruptcy Code (“Code”) Section 547. Oregon law contains a twenty day grace period for perfection of such interests. The bankruptcy court ruled that the Orego...
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OPINION C.F. Brookside, Ltd. (“Brookside”) appeals an order of the bankruptcy court reaffirming its prior grant of summary judgment in favor of Skyview Memorial Lawn Cemetery (“Sky-view”). We affirm in part and reverse and remand in part. I. Background In 1979, Brookside sold an apartment project located in Redondo Beach, California (the “Project”), to Affordable Housing Corpora...
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CONSOLIDATED FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER, AS TO § 505 TAX MOTION FILED BY UNITED STATES OF AMERICA IN MAIN CASE NO. 89-62082, AND JUDGMENTS AS TO COUNT I OF ADVERSARY PROCEEDING NO. 91-6073 AS SUPPLEMENTED, AND ADVERSARY PROCEEDING NO. 90-6030 1 I Statement of Proceedings 1. William Grant Walters (“Debtor William”) and Terry Geralyn Wal...
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OPINION The former counsel for the Chapter 12 1 debtors and debtors in possession filed his first and final fee application following his withdrawal as the debtors’ counsel. The debtors objected to the fee application. Following a hearing on the fee application and objection, the bankruptcy court entered an order which awarded fees and costs to the debtors’ former counsel. The debtors appea...
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MEMORANDUM In this fraudulent conveyance action brought by the Chapter 11 trustee, I hold that former counsel to the debtor-in-possession is ethically disqualified from representing the defendant. Counsel for the defendant, Mr. John Guth-ery, has filed a motion seeking a determination of his ability to continue as counsel in this adversary proceeding. This is an action by the tru...
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ORDER This matter arises on the Chapter 13 Trustee’s motions to dismiss with prejudice and for imposition of sanctions against Debt- or and Debtor’s attorney. Hearing was held August 1, 1994. Debtor did not appear. Pursuant to direction of the court at the hearing, Debtor’s attorney filed a post-hearing report August 22, 1994 (the “Report”). An amendment to that report (the “Amendment...
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MEMORANDUM OPINION Mercantile Bank of St. Louis, the creditor in this Chapter 7 bankruptcy case (“Mercantile”), moved this Court to compel the debtors to reaffirm the debt to Mercantile for a 1992 Pontiac Sunbird, VIN # 1G2JB14T8N7560179 (the “Sunbird”), to redeem said collateral, or, in the alternative, to surrender the Sunbird. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (0...
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MEMORANDUM OF DECISION Gulf USA Corporation (“Gulf’) and Pintlar Corporation (“Pintlar”) (collectively referred to hereinafter as “debtors”) filed this adversary proceeding against The Fidelity and Casualty Company of New York (“Fidelity”) and Continental Insurance Company (“Continental”) for violation of the 11 U.S.C. § 362 automatic stay. (Fidelity and Continental and hereinafter collec...
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DECISION FINDING THAT THE PARTNERSHIP OF “COUNTRY SQUARE PROPERTIES” DID NOT DISSOLVE AUTOMATICALLY UPON THE FILING OF DEBTOR’S CHAPTER 11 PETITION IN BANKRUPTCY; ORDER CONTINUING PROCEEDINGS This matter is before the court upon the Defendant’s motion to dismiss the Plaintiffs complaint for failure to state a claim. The court has jurisdiction by virtue of 28 U.S.C. § 1334 and the standing order...
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OPINION A. INTRODUCTION The posture of the above-captioned individual Chapter 11 cases of two brothers and their respective wives is unusual and is explained by the fact that the matter was reassigned to this judge in the midst of a plan-confirmation process which the predecessor judge had apparently determined should occur prior to the court’s trying (1) underlying adversary...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 liquidation ease and the matter under consideration is a Complaint filed by Mario Amici (Debtor) seeking a determination that two penalties assessed against the Debtor by the Internal Revenue Service (IRS) are dischargeable. The Debt- or also requests injunctive relief against the IRS. The Complaint contains t...
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OPINION This case is before the Court on remand from the Honorable Michael M. Mihm, Chief United States District Judge for the Central District of Illinois. The Debtors, BOBBY GENE COX and VERNA JEAN COX1, filed a Chapter 13 bankruptcy petition on November 25, 1991, but the controversy underlying this dispute did not begin there. Back in 1985, the DEBTORS began residing at a house located at 404 ...
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On these cross motions for summary judgment, the debtor and his ex-spouse ask this Court to determine the proper application of a Chapter 7 discharge to obligations arising under a judgment of divorce for payment of certain real property taxes. Specifically at issue is whether the concept of maintenance under 11 U.S.C. § 523(a)(5) extends to the debtor’s duty to contribute to payment of real esta...
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MEMORANDUM This adversary complaint is before the Court. Appearing on behalf of debtor is Albert Burnes of Omaha, Nebraska. Appearing on behalf of the defendant is Paul Peter, of Bruckner, O’Gara, Keating, Hen-dry, David & Nedved, P.C., Omaha, Nebraska. This memorandum contains findings of fact and conclusions of law required by Fed. Bankr.R. 7052 and Ped.R.Civ.P. 52. This is *...
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MEMORANDUM OF DECISION ON MOTION FOR RELIEF FROM STAY I. ISSUE The principal issue presented in this relief from stay proceeding is what interest the debtor’s estate has in a joint bank account established by the debtor’s brother which, without the knowledge of the debtor, listed the debtor as a joint owner with the brother. II. BACKGROUND Anthony Sciarra (Anthony), the brother of Gerald N. ...
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MEMORANDUM OPINION AND ORDER CONTINUING AND MODIFYING PRELIMINARY INJUNCTION The Court conducted a hearing on November 28, 1994 in furtherance of an Order Entering Preliminary Injunction entered by Chief Bankruptcy Judge Cristol on November 4, 1994 (“November 4 Order”). The November 4 Order was entered following emergency hearings on November 3 and 4, 1994 on the Verified Complaint of the for...
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OPINION Cumberland Farms, Inc. (the “Debtor”) has brought these proceedings against thirteen Massachusetts municipalities and one Maine municipality to contest the valuations of some forty-seven parcels of real estate. At issue are real estate taxes for fiscal years 1988 through 1993, all of which have been paid except the 1992 taxes. Also contested is the rate of interest on the 1992...
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MEMORANDUM OPINION This matter came before the Court for hearing on November 30, 1994, on the debtors’ motion to convert to Chapter 13 or, in the alternative, dismiss so that the debtors could re-file under Chapter 13. The question raised by the debtors’ motion was whether the debtors, whose case was pending prior to enactment of the Bankruptcy Reform Act of 1994 and whose debts exceeded the al...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiff, Angela Beshears, seeking the Court to determine that a certain debt owed by the defendant, Murphy L. Beshears, III, is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). The trial in this matter was held on the 23rd day of August, 1994. From the evidence presented, the Court makes the following findings o...
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MEMORANDUM OPINION AND ORDER This proceeding comes before the Court on the complaint of Patricia Ewing for a determination under 11 U.S.C. § 523(a)(5)(B) that all sums due in connection with her divorce from the debtor, Robert Michael Ewing, are in the nature of support and thereby nondis-chargeable. Specifically, plaintiff refers to the award she received in the Circuit Court of the ...
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AMENDED SUPPLEMENT TO BENCH OPINION OF NOVEMBER 2, 1994 RELATING TO ASSIGNED RENTS AS PROPERTY OF THE ESTATE This Opinion supplements the bench opinion of November 2, 1994. 1 At that time, the Court orally ruled that assigned rents arising from the operation of Debtor’s shopping center are property of the Debtor subject to the Code’s constraints on the use of cash collateral pursuant to § 3...
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OPINION Before the Court is Nancy L. Bennett’s (the “Plaintiff’) Complaint to Determine Dis-chargeability of Debt Pursuant to 11 U.S.C. §§ 727(b) and 523(a)(5) (the “Complaint”). 1 Plaintiff is the Debtor’s estranged wife, having initiated a divorce proceeding in state court prior to the Debtor’s bankruptcy filing. Plaintiff seeks a determination from this Court that her cl...
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OPINION INTRODUCTION The debtor brought this motion to estimate secured creditor ICC Lincoln Limited Partnership’s (“ICC”) claim at zero, to vacate ICC’s 1111(b) election and to vacate and strike ICC’s plan objection and voting ballot. ICC crossmoved seeking authorization to withdraw its 1111(b) election so that ICC may cast a ballot on its unsecured deficiency cla...
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OVERVIEW The debtor and others formed a “Massachusetts Trust” which acted as surety for certain investment loans. The surety failed to pay on claims after the loans had defaulted. When the debtor filed his chapter 7 petition, the creditors brought an action under 11 U.S.C. § 523 to bar discharge of their claims. After trial, the bankruptcy court adjudged the debts nondischargeable. We AFFI...
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OPINION A INTRODUCTION This proceeding presents the issue of whether the Debtor herself must have obtained property by false pretenses, false representation, or fraud in order to have a debt declared non-disehargeable on the basis of 11 U.S.C. § 523(a)(2)(A). We agree with those cases which do not confine § 523(a)(2)(A) to instances where a debtor receives a direct benefit from such actio...
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MEMORANDUM A. BACKGROUND On December 1, 1994, this court presided over a consolidated hearing on the Motion of U.S. Concord, Inc. (“Concord”) for Relief from the Automatic Stay under 11 U.S.C. § 362(a) Enjoining [Both Above-Captioned] Debtors from Use of Cash Collateral, for an Accounting and for Turnover of Cash Collateral or, Alternatively, to Dismiss [These] Case [sic] Pursuant to 11 U...
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OPINION James Kaczmarczik filed an adversary proceeding against Jerry and Geraldine Van Meter, the debtors. Kaczmarczik mailed the complaint and summons to the Van Meters, and concurrently filed the same. As a result, • the Van Meters received an unfiled complaint and an unissued summons. The Van Meters were never served with a filed complaint or an issued summons. Recognizing that th...
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OPINION I The bankruptcy court allowed a law firm with a prepetition secured claim against the debtor’s property to represent that debtor as general counsel in the bankruptcy case. We hold that a professional with a claim secured by the debtor’s property should be viewed as not disinterested as a matter of law. We REVERSE. II FACTS CIC Investment Corporation (“Deb...
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OPINION This appeal concerns the timely issue of the length of the statute of limitations provision applicable to a trustee that is appointed pursuant to § 546 of the Bankruptcy Code. Some courts have found Softwaire Centre and San Joaquin in disagreement on this issue. The debtor in possession operated the estate for seven years at which time the case was converted ...
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OPINION OVERVIEW The Franchise Tax Board of the State of California (the FTB) continued to receive money from a wage garnishment of the debtors after receiving notice of the debtors’ Chapter 13 bankruptcy and instigated other proceedings against the debtors for a period of some five years. On motion by the debtors, the court assessed against the FTB the debtors’ attorney’s fees a...
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OPINION Counsel for a Chapter 11 2 debtor and debtor in possession filed its first and final fee application following successful confirmation of the debtor’s plan of reorganization. The bankruptcy court entered an order which awarded fees in an amount less than requested by counsel and costs in full. Counsel filed a motion for clarification of the bankruptcy court’s order...
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OPINION Jose Antonio Santiago (“debtor”) is the debtor in the above-captioned chapter 11 case. Floyd Irons (“Irons”) filed an adversary proceeding against the debtor and several other parties not in bankruptcy. The bankruptcy court dismissed the complaint as untimely filed. From this order, the plaintiff appeals. For the reasons stated herein, we reverse the decision of the bankruptcy court. ...
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ORDER DENYING REQUEST FOR PAYMENT OF ADMINISTRATIVE EXPENSE FILED BY AMERICAN DRUG STORES, INC. AND DENYING MOTION FOR RECONSIDERATION OF DISALLOWANCE OF GENERAL UNSECURED CLAIM This matter is before the Court on the request for payment of administrative expense filed by American Drug Stores, Inc. d/b/a Oseo Drug Stores (American Drug) and the objection to the request filed by Food Ba...
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ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT This adversary proceeding came on for hearing on September 1,1993, on the parties’ cross-motions for summary judgment. Clinton E. Cutler appeared for the plaintiff. Randall L. Seaver appeared for the defendant. I granted the defendant summary judgment on December 29, 1993. Dairy Fresh Foods, Inc. v. Ramette (In re Country Club Market, Inc.) 162 B.R. 226 ...
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OPINION A bankruptcy trustee sought sanctions against several state court defendants for willful violation of the automatic stay of 11 U.S.C. § 362(a) when the state court, after determining that defense issues were not affected by the automatic stay, granted the defendants’ motion for a summary judgment, dismissed the lawsuit, and awarded them costs. The bankruptcy court ruled to the contrary,...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon Debtor’s Objection to the Amended Proof of Claim filed by the Internal Revenue Service (hereafter “IRS”); the United States’ Opposition to Debtors’ Objection to Proof of Claim; and the supplemental memoranda filed by both parties. This Court has reviewed the arguments of Counsel, exhibits, relevant statutory and case law, as...
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MEMORANDUM OPINION AND ORDER We 1 begin this opinion with dictum. Often it makes the better point. They think themselves anointed. Ah, take the cash, and let the credit go, Nor heed the rumble of a distant drum! —The Rubaiyat of Omar Khayyam *625 Over all of these years we have heard the argument of credit unions seeking a favored status 2 in the bankruptcy court which the law s...
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MEMORANDUM OPINION This court has before it a Motion To Prohibit The Use Of Cash Collateral filed by Crestar and the Debtor’s Response thereto. Both parties have submitted supplemental memoranda which this court also has considered. At the preliminary hearing, Crestar’s motion was denied due to insufficient evidence upon which this court could find that the funds at issue were Crestar...
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ORDER In this adversary proceeding, the Chapter' 7 Trustee and Intervenors United States Internal Revenue Service (IRS), and Montana Department of Revenue (DOR), seek turnover of assets of the Defendant Grant Investments Fund (Grant), a partnership, on the grounds that Grant is the alter ego of the Debtor Edward Towe. Intervenors/Defen-dants Gumpel, Brooks, and Rector are investors and pa...
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MEMORANDUM AND ORDER This case is before the court to consider motions filed by the United States Bankruptcy Trustee requesting that sanctions be imposed against Mr. Clay B. Statmore and that he be compelled to provide an accounting (Fils. # 164 and # 172). Prior to the hearing Mr. Clay B. Statmore was provided notice that he shall attend the hearing and show cause why he should not b...
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MEMORANDUM OPINION This opinion sets forth the court’s decision on a motion by plaintiff E & C Holding Company, the debtor-in-possession (hereinafter “the debtor”), to vacate the court’s order of April 26, 1994 granting partial summary judgment in favor of defendant Township of Piscataway (hereinafter “Piscataway”). The court determined on that motion that Piscat-away held a claim against defen...
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MEMORANDUM, OPINION AND ORDER This matter is before the court on the motions of Lucille Jackson, the debtor, to enforce the automatic stay and for sanctions and the motions of Midwest Real Estate Investment Company Partnership to lift the automatic stay and objecting to a claim filed on its behalf by the Debtor. 1 For the reasons stated below, the court grants the Debt- or’...
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DECISION and ORDER On September 28, 1993, Bobilya Chrysler, Plymouth, Dodge, Inc. (“Bobilya Chrysler”), Plaintiff, filed its COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT (“Complaint”) against Rick Douglas Gross (“Gross”), Debtor herein. At the beginning of trial on the Complaint, counsel for Bobilya Chrysler moved orally to amend the pleadings to conform to the evidence. Following ...
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ORDER DETERMINING SECURED CLAIM OF STATE FARM LIFE INSURANCE COMPANY This matter came before this Court upon the motion of State Farm Life Insurance *201 Company (“State Farm”) to determine its secured claim in the above referenced case. This opinion holds that State Farm’s secured claim is equal to the amount of indebtedness owed under the Deed of Trust Note and its modifications, other co...
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*12 OPINION COMES NOW before the Court for consideration the Emergency Motion of Shell Oil Company for Relief from the Automatic Stay (“Lift Stay Motion”). This opinion constitutes findings of fact and conclusions of law to the extent required by Fed.R.Bank.P. 7052 and disposes of all issues before the Court. FACTUAL AND PROCEDURAL BACKGROUND United States Brass...
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INTRODUCTION The Florida Department of Insurance has filed two motions in this Chapter 11 case. One requests an order authorizing a Rule 2004 examination of specified officers and directors of the debtor; the other requests an order dismissing the case or, in the alternative, transferring venue to Florida. The debtor and its wholly-owned insurance company subsidiary, acting through the...
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MEMORANDUM OF DECISION Before the court are First Citizens Bank’s (“First Citizens” or “the bank”) objection to the debtor’s exemption claim in a self-directed individual retirement account (“IRA”) and the debtor’s motion to avoid First Citizens’ lien in the same asset. For the reasons set forth below, the bank’s objection is overruled and the debtor’s lien avoidance motion is, after ...
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MEMORANDUM OPINION On July 23, 1993, Billy G. Billingsley and Ruth Ann Billingsley (debtors) filed a voluntary petition for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. On August 19, 1993, the debtors filed a complaint against Helena National Bank (the Bank), Charles D. Roscopf (Roscopf), Trustee, Gene Ridge, and Wanda Ridge to set aside an alleged preferential ...
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MEMORANDUM OPINION DISMISSING TRUSTEE’S COMPLAINTS [ADV. NOS. 93-513S-JS AND 93-530U-JS AND DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT [ADV. NO. 93-503I-JS FINDINGS OF FACT 1. On May 5, 1992, involuntary Chapter 7 bankruptcy petitions were filed in this Court against Advance Insulation & Supply, Inc., Baltimore Home Insulation, Inc., Colonial Insulation & Supply, Inc., and...
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ORDER HOLDING DEBT TO BE NONDISCHARGEABLE This matter is before the Court on the complaint filed by Phoenix Bowling Corporation (Phoenix) to determine the discharge-ability of an obligation owed to it by the debtor Jeanne Marie Mason, a/k/a/ Jeanne Marie Campoli, a/k/a Jeanne Marie Towner. After reviewing the evidence produced at trial and the briefs of the parties, the Court determin...
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MEMORANDUM OPINION INTRODUCTION Before the court in this adversary proceeding is a motion by the Debtor plaintiff for a preliminary injunction to enjoin the defendant from prosecuting a California state court action against former and present directors of the Debtor plaintiff. Because I find that the Debtor plaintiff could suffer irreparable harm from the indemnification and coll...
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MEMORANDUM OPINION I.INTRODUCTION The Debtors in this chapter 13 case bought a 1992 Bonneville with secured financing from Bank One. They now want to “strip down” Bank One’s lien on the car so that they can satisfy that lien by paying only the value of the car, which is less than the total balance remaining due Bank One. Relying upon In re Hernandez, 162 B.R. 160, 163 (Bankr.N.D.Ill.1993)...
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ORDER This matter comes before the Court on the Motion for Summary Judgment filed in this proceeding on August 16,1994, by the defendant Southern Wipers, Inc. (hereinafter “Southern Wipers”). By its Motion, Southern Wipers seeks judgment in its favor in an adversary proceeding commenced by the former trustee Robert E. Brizendine, and currently pursued by the successor trustee Frank W....
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SUPPLEMENTAL OPINION REGARDING NEW VALUE EXCEPTION TO THE ABSOLUTE PRIORITY RULE In In re U.S. Truck Co., Inc., 800 F.2d 581 (6th Cir.1986), the Court held that the stockholders of a corporate debtor can, consistent with the requirement of 11 U.S.C. § 1129(b)(2)(B)(ii), 1 retain their shareholder interest by making a contribution to the reorganized debtor that is both substantial and esse...
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MEMORANDUM OPINION On November 12, 1992, Guy Hamilton Jones, Jr. (“Jones”) and Guy Jones, Jr., P.A. (“the P.A.”) filed voluntary petitions for relief under the provisions of Chapter 7 of the United States Bankruptcy Code. Jones is an attorney, who conducts his legal profession through the professional association, Guy Jones, Jr., P.A. Richard L. Ramsay was appointed the trustee in bot...
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DECISION ON TRUSTEE’S OBJECTION TO CLAIM OF EXEMPTION Kathleen P. Dwyer, the Chapter 7 Trustee (“Trustee”) objected to the debtors’ claim of a $92,000 exemption in their residence pursuant to M.G.L. c. 188, § 1. The objection was based upon the fact that the Declaration of Homestead names both of the debtors as declarants. It appears that the debtors acquired the property in both of ...
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DECISION ON MOTION FOR POSSESSION AND PAYMENT OF ADMINISTRATIVE RENT CLAIM This matter is before the Court on the motion of Mellon Financial Services Corporation # 1 (“Mellon”) for an order seeking immediate possession of certain premises now or formerly leased and occupied by Thinking Machines Corporation (“Debtor”). Mellon also seeks payment of an administrative rent claim. At the hearing i...
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SUPPLEMENTAL OPINION Concerned Citizens for Addison Community Hospital Authority [“Concerned Citizens”] filed a motion to intervene in this chapter 9 proceeding under Fed.R.Bankr.P. 2018. For the reasons stated in this opinion, 1 the Court concludes that the motion should be denied, but that members of Concerned Citizens who are creditors must be allowed an opportunity to be heard under 11 ...
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MEMORANDUM OPINION This adversary proceeding came before the court on February 16, 1994, for hearing upon the third-party defendants’ motion pursuant to Federal Rule 12(b)(1) and Bankruptcy Rule 7012 to dismiss the third-party complaint for lack of subject matter jurisdiction. Having considered the briefs filed by the parties and the arguments of their counsel, *510the court has concluded that ...
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DECISION AND ORDER This adversary proceeding is before the Court on cross motions for summary judgment. The complaint of Debtor Kerry Lynn McGraw seeks a ruling that thirty-six and one-half percent (36$%) of his military pension, previously ordered paid to his ex-wife, Jenifer A. McGraw under a Judgment Entry and Decree of Divorce, constitutes a dis-chargeable debt under 11 U.S.C. § 523(a...
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OPINION This matter came before the court upon objections to the claims of Charles Robinow-itz and Lawrence Erwin. Charles Robinow-itz represents Suzan Brewer, a creditor, and represented the trustee for certain purposes when the ease was proceeding under chapter 11. Mr. Lawrence Erwin i-epresents himself as attorney for the debtor while the case was pending under chapter 11. The court wi...
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MEMORANDUM OPINION Debtor Americana Services, Inc. filed its petition for relief on December 14, 1993. Steven C. Block was duly appointed trustee and brings this adversary action against Warehouse Consultants, Inc., R.D.D. & Associates, Inc., f/k/a Robert D. Dick & Associates, Inc., Robert D. Dick and Dottie K. Dick. Count I sought to avoid the transfer of certain assets by debtor thr...
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DECISION and ORDER ON (1) MOTION TO TERMINATE EXCLUSIVITY PERIOD and (2) MOTION TO DECLARE MEDIATION IMPASSE In these consolidated Chapter 11 bankruptcy cases, two official committees have *145 filed motions which are now before the court for decision. The Official Unsecured Creditors’ Committee (“UCC”) has moved “For Order Terminating or Modifying Exclusivity Period to Permi...
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DECISION RE TEACHERS INSURANCE and ANNUITY ASSOCIATION MOTION FOR ADEQUATE PROTECTION The Chapter 11 debtor in this case is the owner of the building in which the Hyatt Regency Cincinnati hotel is housed and operated. Permanent financing for the construction of the building was provided by Teachers Insurance and Annuity Association of America (“TIAA”). Now before the court is a motion by ...
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DECISION AND ORDER ON MOTION FOR FEES UNDER § 506(c) In this Chapter 11 ease a plan was confirmed May 11, 1994. The debtor and counsel for the debtor, Keating, Meuthing and Klekamp (“KMK”), now move for an order pursuant to 11 U.S.C. § 506(c) to allow them to collect from the proceeds of sale of the real estate which was the subject of the bankruptcy case, $9,324.62, the unpaid balance of its att...
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ORDER DENYING DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS This proceeding came on for hearing on the defendants’ motion for judgment on the pleadings. Gordon B. Conn, Jr., appeared for the plaintiff. Jane S. Welch appeared for the defendants. This court has jurisdiction over this motion pursuant to 28 U.S.C. §§ 157(a) and 1334, Bankruptcy Rule 5005, and Local Rule 201. This is a ...
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MEMORANDUM AND ORDER Vallie Slider, ex-wife of John P. Slider, Debtor, filed the above adversary complaint against John P. Slider, Debtor, seeking a judgment order that $7,800 due to be paid by Debtor, pursuant to a “SEPARATION AGREEMENT,” dated March 22, 1988, was unpaid and was alimony and therefore is not discharged under 11 U.S.C. § 523(a)(5). Plaintiff also seeks interest, court costs and a...
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DECISION RE OBJECTION TO CLAIM OF CITY OF NEW YORK, ETC. Debtor, Eagle-Picher Industries, Inc., filed objections to proof of claim # 165291 filed by the New York City Health and Hospitals Corporation; proof of claim # 165292 filed by the City of New York and its affiliated agencies, agents and entities; and proof of claim # 165293, filed by the New York City Housing Authority. Each of the...
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INTERIM RULING ON MOTION TO DISMISS CHAPTER 12 PETITION I. The issue presented in this interim ruling on a motion to dismiss the debtor’s Chapter 12 petition is whether the debtor qualifies as a family farmer by having received more than 50 percent of her 1993 income from a farming operation. Code § 109(f) provides: “Only a family farmer with regular annual income may be a debtor under chapter ...
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ORDER DENYING LOUIS ANAGNOS’ MOTION TO DISMISS TRUSTEE’S COMPLAINT AND AMENDED COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION THIS MATTER came before the Court on December 1,1994 at 9:30 a.m., on the Motion of Defendant, LOUIS ANAGNOS, to Dismiss Trustee’s Complaint and Amended Complaint for Lack of Subject Matter Jurisdiction. The Court having heard argument of counsel having reviewed the...
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*77 FINDINGS OF FACTS AND CONCLUSIONS OF LAW The Plaintiff/Debtor, ARTHUR ROSEN-BLATT, (hereafter “ARTHUR”) seeks a determination that a net distributive award and attorneys’ fees award rendered by New York State Supreme Court in favor of Defendant/Former Wife, BELINDA F. WITTLIN, (hereafter “BELINDA”), is dischargeable under 11 U.S.C. § 523(a)(5). The parties agreed to submi...
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MEMORANDUM AND ORDER THIS MATTER came on before the Court for trial on Plaintiffs pre-petition legal malpractice claims. 1 Appearances were made by Peter J. Lucas of Doherty, Rumble & Butler, P.C., on behalf of Plaintiff Miramar Resources, Inc., and by David M. Rich of Clana-han, Tanner, Downing and Knowlton, P.C., on behalf of Defendant Thomas B. Webb. The first issue in ...
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OPINION AND ORDER COMPELLING SANDY KARLAN, ESQ., BENSON WEINTRAUB, ESQ. AND CARLOS RODRIGUEZ TO COMPLY WITH DISCOVERY AND DENYING MOTION TO QUASH THIS CAUSE was heard on October 12, 1994 on remand from the United States District Court for the Southern District of Florida. Background These proceedings are conducted pursuant to an Order of Remand (the “Remand Order”) enter...
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THIS CAUSE having come before the Court upon agreement of the parties for decision by the Court without trial, and the Court having reviewed the pleadings, the record and the entire file, and being otherwise fully advised in the premises, the Court makes the following findings of fact and conclusions of law: FINDINGS OF FACT 1.On May 9, 1994, PRP Wine International, Inc. (“PRP”) timel...
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OPINION On this motion, we are reconsidering our denial of the trustee’s summary judgment motion seeking disgorgement of monies paid to the Township of Pemberton (“Township”) following the sale of assets of debtor’s estate. FACTS Tabone, Inc. (“debtor”) filed a petition for relief under Chapter 11 of the Bankruptcy Code on February 25, 1991. Debtor’s case was converted to Ch...
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*68 FINDINGS OF FACT AND CONCLUSIONS OF LAW This adversary proceeding seeking to avoid prepetition transfers as preferences came before the Court for a trial on September 21, 1994. Upon the evidence presented, the Court enters the following findings of fact and conclusions of law: Findings of Fact Plaintiff, Graphic Productions Corporation (“GPC”), is seeking to...
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MEMORANDUM OPINION Trial was held on August 9, 1994, on plaintiffs complaint to except a debt from *611discharge pursuant to 11 U.S.C. § 523(a)(2)(A). At the conclusion of the trial, the court granted leave for plaintiff to amend the complaint1 to include a claim under 11 U.S.C. § 523(a)(6). The court took the matter under advisement. For the reasons stated in this memorandum opinion, the debt ...
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Decision on Motion to Avoid a Judicial Lien The debtor, Irene Vizentinis (hereinafter, the “Debtor”), moves pursuant to 11 U.S.C. § 522(f) to avoid a judicial lien as impairing her homestead exemption under New York Civil Practice Rules and Procedure (hereinafter, “CPLR”) Section 5206(a) and New York Debtor and Creditor Law (hereinafter, “DCL”) Section 282. The City of New York (hereinafter, th...
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*628 MEMORANDUM OPINION Hearing was held on September 29, 1994, on debtors’ objection to a proof of claim filed by creditor who had obtained a deed in lieu of foreclosure on certain property in partial satisfaction of a promissory note secured by a deed of trust on the property. Debtors allege that creditor’s execution of this deed in lieu of foreclosure “constitutes a full r...
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MEMORANDUM OPINION Margaret Rose Hilt and Leonard D. Hilt owned a residence homestead as joint tenants with right of survivorship 1 before Margaret filed a petition for divorce in 1985. The District Court of Shawnee County, Kansas, entered a divorce decree on September 16, 1985, granting Margaret Hilt the homestead and Leonard Hilt a judicial lien 2 on the homest...
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MEMORANDUM ORDER DENYING MOTION TO DISMISS THE INTERNATIONAL SHOE FITS The Debtor, BANCO LATINO INTERNATIONAL (“BLI”), initiated an adversary proceeding against the Defendant, AMAZONAS INTERNATIONAL BANK, LTD. (“Amazonas”), a banking institution organized under the laws of The Bahamas, to recover on an unpaid placement 1 that matured and became fully due and payable shortly...
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MEMORANDUM OPINION Barkley 3A Investors, Ltd., filed a voluntary Chapter 11 petition 1 on June 13, 1994, and continues in possession of its office building property under 11 U.S.C. §§ 1107 and 1108. 2 PFL Life Insurance Company (“PFL”) holds debtor’s $2.5 million note secured by a mortgage and assignment of rents on the building property which is valued between...
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MEMORANDUM OPINION This matter comes before the Court on the complaint of AVCO Financial Services, Inc. (“AVCO”) for determination of the discharge-ability of a debt owed to it by Everette Abdul’Faruq and Shawna Abdul’Faruq (the “Abdul’Faruqs”) pursuant to 11 U.S.C. § 523(a)(2)(B). This is a core proceeding, over which this Court has jurisdiction pursuant to 28 U.S.C. §§ 157(b)(2)(I) and 1334...
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*885 MEMORANDUM OPINION This matter came before the Court to determine whether Kenneth P. and Mary Jean Carlson have a valid customer claim before the Securities Investor Protection Corporation (“SIPC”). SIPC was created by the Securities Investor Protection Act of 1970 (hereinafter referred to as “SIPA” or “the Act”), to establish a procedure by which customers dealing with the purchase and sa...
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MEMORANDUM OF OPINION The Debtor in this case asserts that his exemption claims became final in the chapter *921 11 phase of his case since no creditor objected within the time specified in Rule 4003(b) of the Federal Rules of Bankruptcy Procedure. The Trustee appointed after the Debt- or converted the case to chapter 7 argues that the Debtor is wrong on two counts: first, be...
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It is a sure sign of financial distress when a consumer takes a cash advance on á credit card to pay the minimum installment due on other unsecured obligations. Unfortunately, personal involvement often obscures that which may be obvious to outsiders. At issue in this core proceeding is whether this practice nonetheless demonstrates actual fraud within the meaning of 11 U.S.C. § 523(a)(2)(A), so ...
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OPINION REGARDING OBJECTION TO PROPOSED SETTLEMENT The Debtor filed for relief under chapter 11 of the Bankruptcy Code on August 21, 1989. The Court entered an order confirming the Debtor’s plan of reorganization on July 11, 1992. On April 26, 1994, the case was converted to chapter 7 pursuant to 11 U.S.C. § 1112(b)(8). On June 21, 1994, the chapter 7 trustee filed a settlement stipul...
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OPINION The issue before the Court is whether the Debtor may use her deceased husband’s homestead exemption in addition to her own homestead exemption pursuant to 735 ILCS 5/12-901 et seq. The material facts are not in dispute. The Debtor, Etta Rhoades, has lived at her personal residence at 417 West Howard in Kenny, Illinois, for 35 years. She lived with her husband at the resid...
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OPINION Before the Court is Debtor’s Complaint to Determine Dischargeability of Debt. In or about October 1978, Kyle Doherty (“Doherty”), who was enlisted in the United States Navy, sold his automobile to Robert Stafford (“Stafford”), who was also in the Navy. Three days later, and before title to the vehicle was transferred from Doherty’s name to Stafford’s name, Stafford was involved in a...
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MEMORANDUM OF DECISION Before the court is the Chapter 7 trustee’s objection to Janice Reider’s secured proof of claim. For the reasons set forth below, I conclude that Ms. Reider holds rights superi- or to the estate in one half of a $24,205.11 fund held by the trustee and, therefore, overrule the trustee’s objection and order that the funds be disbursed to her at once. 1 ...
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MEMORANDUM OPINION On October 31,1994, a hearing was held to consider Mark E. Maloy’s (“Debtor”) Motion to Reopen this Case. For the reasons stated hereafter, Debtor’s motion will be denied. These findings of fact and conclusions of law are published in accordance with Fed. R.Bankr.P. 7052. FINDINGS OF FACT Debtor’s Motion to Reopen was opposed by Arthur L. Phillips, an attorney at law in his ...
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MEMORANDUM OF DECISION I. BACKGROUND The matter before the Court is a “Motion To Avoid Real Estate Attachments Under Section 522(f)” (the “Motion”) filed by the Debtor, William J. Witkowski (the “Debtor”). The Motion seeks to avoid judicial liens held by Shawmut Bank, N.A. (“Shawmut”), Sylvan Nursery, Inc. (“Sylvan”) and Edwin’s Gifts Too (“Edwin”) 1 (collectively,...
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*2 MEMORANDUM OF DECISION Shape, Inc. (“Shape”) alleges that a transfer of stock should be avoided as fraudulent under the constructive fraud provisions of 11 U.S.C. § 548(a)(2) and Maine law — 14 M.R.S.A. § 3575(1)(B). This Court agrees and the transfer is avoided pursuant to Section 548 and the defendant Midwest Engineering Inc. (“MEI”) is ordered to pay Shape $1,444,744.41...
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MEMORANDUM Before me are two motions filed by the defendant, Commonwealth of Pennsylvania Department of General Services. One motion seeks dismissal the above-captioned adversary proceeding; the second motion requests that abstention be granted. The plaintiff/debtor opposes both requests for relief. For the following reasons, I conclude that abstention is warranted. I. A. ...
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MEMORANDUM OF DECISION ON CROSS MOTIONS FOR SUMMARY JUDGMENT The narrow issues raised by the cross motions for summary judgment concern whether or not the Internal Revenue Service is entitled to a priority claim for unpaid income taxes, and the stare decisis effect of a decision of the Court of Appeals for the Tenth Circuit. The plaintiffs-debtors brought their complaint seeking a determination ...
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MEMORANDUM DECISION AFTER TRIAL Shakespeare could have had the facts of this case in mind when he wrote: “Neither a borrower nor a lender be,/for loan oft loses both itself and friend * * * ” Hamlet, Act 1, Scene 3. This adversary proceeding was commenced by Jack Kuper (“Kuper”) to obtain a declaration that a $100,000 personal loan made to the debtor is nondischargeabl...
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MEMORANDUM OF DECISION Before the Court for determination are several motions arising out of a “Complaint for Avoidance or Preferential Transfers, Breach of Agreement, and Breach of Contract/Distribution Agreement” (the “Complaint”) filed by the Debtor, Aero-Fastener, Inc. (the “Debtor” or “Plaintiff’) against Si-erracin Corporation (“Sierracin” or “Defendant”). I. FACTS The...
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AMENDED MEMORANDUM OPINION Before the Court is a complaint filed by Bettye Phillips to obtain declaratory relief regarding potential claims Bettye Phillips may have against the Debtor. The Court consolidated the complaint for trial with an adversary proceeding filed by the Debtor against Bettye Phillips (Adversary No. 94-6020). At the conclusion of the trial, the Court rendered its findin...
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Decision on F.R.B.P. 9011 Sanctions This decision addresses the imposition of sanctions pursuant to Fed.R.Bankr.P. 9011 (hereinafter, “Rule 9011”). For the reasons that follow, we find the Debtor’s former attorney, Howard J. Diller, Esq. (hereinafter, “Diller”), subject to sanctions. This proceeding is subject to the bankruptcy court’s jurisdiction under 28 U.S.C. §§ 1334(b) and 157(a) and the Ord...
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MEMORANDUM OPINION MODIFYING AUTOMATIC STAYS Debtors filed these cases under Chapter 11 of the Bankruptcy Code just prior to commencement of the hearing in a condemnation proceeding by the State of Maryland. The State’s motion for relief from stay filed in each case requires the court to reconcile, in the context of a reorganization case, the State’s exercise of its power of eminent d...
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MEMORANDUM TO ORDER OF SEPTEMBER 30, 1994 On September 30, 1994, the Court entered an order denying the Defendants’ motion for summary judgment, and granting the Plaintiffs motion for partial summary judgment. Pursuant to Fed.R.Civ.P. 52(a), as incoipo-rated by Fed.R.Bankr.P. 7052, this memorandum sets forth the findings of fact and conclusions of law on which that order was ba...
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MEMORANDUM OF DECISION Presently before the Court is the trustee’s objection to chapter 7 debtors Perry Lee and Kathryn Eileen Bianeavilla’s claim of exemptions. The trustee objects to the following property which the debtors have claimed as exempt under Idaho Code § ll-605(l)(a): *932 Computer Desk: $ 25.00 Computer 1 $250.00 Entertainment Cabinet $300.00 Stereo System $100.00 ...
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MEMORANDUM OF DECISION Presently before the Court is the debtors’ motion for sanctions for violation of the automatic stay and D.P.C.K., Inc. d.b.a. AutoRen-tal of Coeur D’Alene’s (“AutoRental”) motion for relief from stay. I. BACKGROUND Both motions concern an agreement entitled, “Consumer Rental-Purchase Agreement” (the “Agreement”) which Donald M. Wyatt and Betty Lou Wyatt (the “debt...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS is a confirmed Chapter 11 case and the matter under consideration is an Motion Seeking Payment of Administrative Expense Claim Pursuant to 11 U.S.C. § 503 filed by Bay Cardiac Imaging, Inc. (Bay Cardiac), together with an Objection to the Motion filed by Barclay’s Business Credit, Inc. (Barclay’s). In its Motion, Bay Cardiac seeks to recover as an administ...
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MEMORANDUM OF DECISION This is an action to deny a discharge to Defendant Maurice Gregory Bourget, a Chapter 7 debtor, brought by the Plaintiffs under Section 727(a) of the Bankruptcy Code. Regrettably, because the Court finds after trial of the action that Defendant falsified his business books and records, and made fraudulent transfers of his property within a year prior to filing for bankruptcy...
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ORDER ON MOTION TO VALUE COLLATERAL THIS is a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion to Value Collateral filed by the Min-nelusa Company (Debtor). In its Motion, the Debtor seeks a determination of the value of 1,500 shares of stock of the Debtor. The stock is allegedly pledged to a group of creditors of the Debtor, A.G. Andrikopoulos, George A. Seife...
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ORDER ON MOTION FOR SANCTIONS This is the last chapter in a long-drawn out odyssey of Helen Costello (Debtor) in not only this Division of this District but also for a change of scenery in the Orlando Division, and ultimately in the Northern District of Georgia. Victor Levine (Levine) who got tired of being constantly frustrated by the Debtor due to her repeated attempts to seek the prote...
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FINDING OF FACT, CONCLUSION OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 ease and the matter under consideration is the dischargeability, vel non, of a debt in the amount of $1,491.56 owed by Linda K. Futch (Debtor) to Beneficial Florida, Inc. (Beneficial). The claim of nondischargeability is set forth by Beneficial in a three-count Complaint. Beneficial alleges that Debtor’s failure to purch...
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ORDER ON MOTION FOR F.R.B.P. 9011 SANCTIONS AGAINST TRUSTEE AND TRUSTEE’S COUNSEL THIS IS an aborted Chapter 11 case and the matter under consideration is a Motion filed by Hugh Lee Nathurst, III (Debtor) who seeks an order imposing sanctions against Stephany Carr, Trustee of the Debt- or’s estate (Trustee). The undisputed facts which appear from the record and which are relevant to the Motion un...
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ORDER ON OBJECTION TO CLAIM OF EXEMPTION This is a chapter 7 liquidation case and the matter under consideration is a challenge by Diane Jensen, Trustee of the estate (Trustee) to the claim of exemption asserted by Myron Bubnak (Debtor). The property involved which is claimed as exempt is a 1983 Holiday Motor Home. It is the Trustee’s contention that the motor home cannot be claimed as ex...
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ORDER ON MOTION FOR ENLARGEMENT OF TIME TO FILE PROOF OF CLAIM THIS IS a confirmed Chapter 11 case and the matter under consideration is a Motion for Enlargement of Time to File Proof of Claim filed by Theodore Stone (Stone). The facts relevant to the resolution of this controversy as they appear in the record are as follows. Stone’s connection with the Debtor’s predecessor in intere...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION John P. White and Sarah Beth White, his wife, (Debtors) filed their joint Petition for Relief on August 19, 1991. On their Sehed- *112 ule of Liabilities, the Insurance Company of North America (INA) was duly scheduled by the Debtors as an unsecured creditor holding a claim in the amount of $116,791.21. The present a...
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ORDER ON APPLICATION FOR AUTHORITY TO EMPLOY MDM SERVICES, INC., AS ENVIRONMENTAL CONSULTANT THIS is a Chapter 11 case and the matter before the Court is an Application for Authority to Employ MDM Services, Inc. (MDM), as Environmental Consultant filed by the Debtor River Ranch Inc., d/b/a Outdoor Resorts River Ranch (Debtor). The Application is opposed by the United States Trustee on the basis...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OF LAW THIS IS a Chapter 7 liquidation case and the matter undeh consideration is a Complaint to Determine Dischargeability of a Debt filed by Franklin Edward Keisler and Barbara Dean Keisler (Debtors). The facts relevant to the resolution of this controversy as they appear in the record are as follows. Franklin Keisler (Debtor) ser...
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ORDER ON MOTION TO DISMISS THIS IS a Chapter 7 liquidation case and the matter under consideration involves a motion filed by Ronald Burcham (Debtor) who seeks to dismiss the Complaint filed pursuant to Section 523(c) of the Bankruptcy Code by American Express Centurion Bank Optima Account (American Express). The Motion to Dismiss is based on the contention of the Debtor that the Complain...
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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 Helen Burgan (Plaintiff) challenging the right of Steve Feder (Debtor) to receive a discharge. The Plaintiff in her one-count Complaint alleges that the Debtor should be denied his discharge pursuant to § 727(a)(4) of the Bankruptcy Code becaus...
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ORDER OVERRULING SOUTH FLORIDA BANK’S OBJECTION TO DEBTORS CLAIM OF EXEMPTIONS THIS IS a Chapter 7 case and the matter under consideration is an objection by South Florida Bank to the claim of Richard E. Ripp and Susan T. Ripp (Debtors) that two vacant lots located at 6741 Cadet Avenue, Fort Myers, Florida, which are adjacent to the Debtors’ primary residence are exempt, pursuant to Florida Con...
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*612FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS is a confirmed Chapter 11 case and the matter before the Court is a complaint filed by St. Petersburg Harbourview Hotel Corporation (Debtor) against 0. Sanford Jasper, Pinellas County Tax Collector, J.T. Herndon and Jim Smith (Plaintiffs). The Complaint was originally filed in the Circuit Court for Pinellas County, and was remove...
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ORDER ON MOTION TO COMPEL PERFORMANCE OF DEBTOR THIS IS a confirmed Chapter 11 case and the matter under consideration is a Motion to Compel Compliance filed by Walter H. Turpin, Eva Persons and Fred J. Turpin (Lessors). The motion seeks to compel, Golden Triangle Film Labs, Inc. (Debtor), to perform under a commercial retail property lease (Lease) which Lessors claim was assumed by the Debtor pur...
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ORDER ON MOTION FOR SUMMARY JUDGMENT THIS is a Chapter 7 liquidation case and the matter under consideration is a Complaint filed by First USA, Inc. (Plaintiff) against Thomas Savage (Debtor) seeking a determination that the debt due and owing the Plaintiff by the Debtor is nondischargeable pursuant to § 523(a)(2)(A) of the Bankruptcy Code. In due course, the Debtor filed an Answer in whi...
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FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION THIS IS a Chapter 7 case and the Complaint in this Adversary Proceeding was filed by Buddy Ford (Trustee), the original Trustee of the estate, who asserted five claims against Neil Turk Feldman, M.D., P.A., Defined Pension Plan and Neil Turk Feldman, as Trustee of the Neil Turk Feldman, M.D., P.A., Defined Benefit Pension Plan (F...
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MEMORANDUM OPINION AND ORDER This matter comes before the Court on the Motion of the Chapter 13 Trustee, James E. Kohlhorst, to Dismiss the above-captioned Chapter 13 case, pursuant to the provisions of Bankruptcy Code Section 109(e). The Trustee is represented by Attorney Mary P. Gorman. The Debtors are represented by Attorney Harvey A. Meyers. The IRS (U.S.A.) is represented by Attorney Sam...
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MEMORANDUM OF DECISION The Debtor, Parke Imperial Canton, Ltd. objects to a Notice of Removal filed by Developers Diversified Realty Corporation, Great West Life and Annuity Insurance Company, Great West Life Assurance Company and SouthTrust Bank of Central Carolina (collectively, the Removers). The Debt- or also moves that the complaint be remanded to the state court and/or that this cou...
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MEMORANDUM OPINION In this adversary proceeding plaintiff filed a complaint seeking to except a debt from debtor’s discharge pursuant to provisions of 11 U.S.C. § 523(a)(5) and also to deny debt- or’s discharge in bankruptcy pursuant to 11 U.S.C. § 727(b). In response debtor moved to dismiss, alleging that plaintiff is without standing to bring the action. Because this court finds that the plain...
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MEMORANDUM OPINION This proceeding comes before the court on plaintiffs’ complaint to determine the dis- *422 chargeability of attorney and commissioner fees awarded against debtor defendant pursuant to 11 U.S.C. § 523(a)(5) and on the plaintiffs motion to reconsider the judgment order entered April 28,1994, which dismissed the complaint. At trial the parties stipulated t...
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MEMORANDUM OPINION Final hearing was held on November 14, 1994, on Debtor William. Howard Dunham’s motion to Show Cause Against Curtis Black for an alleged violation of the automatic stay. Because the contempt judgment, entered to uphold the dignity of the state court, did not violate the automatic stay, the court denied the motion. This memorandum opinion supplements the court’s bench ruling...
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MEMORANDUM Before the court is the Motion for Summary Judgment by Defendants Raymond Bantz, Clinton Bantz, John Blount, and Dennis Bantz (Fil. # 82), the Resistance by the Trustee (Fil. # 95), the Motion to Disqualify by the Trustee (Fil. # 107), the Objections to the Motion to Disqualify (Fils. # 109, # 111, and # 113), and the Exception by Defendant Roger McMann to Plaintiffs Brief (Fil. # 10...
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*272 FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Motion for Administrative Expense filed by the Florida Department of Environmental Protection (“State”). The Court held hearings on August 17, and August 22, 1994. Upon the evidence presented, the Court enljers these findings of fact and conclusions of law: Findings of Fact Debtor owned property which cont...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This case is before the Court upon Gregory A. Anderson, P.A’s (“Anderson”) Amended and Restated First Application for Allowance of Compensation for Professional Services Rendered and Reimbursement of Costs and Expenses Incurred as Counsel for the Chapter 7 Trustee. Upon the evidence presented at the hearing held September 22, 1994, the Court ent...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This proceeding is before the Court upon a complaint in an adversary proceeding filed pursuant to Rule 7001(1), (7), and (9), and Rule 2017(a), Federal Rules of Bankruptcy Procedure, to recover monetary damages and to obtain injunctive and declaratory relief pursuant to 11 U.S.C. § 329, and pursuant to the Florida Deceptive and Unfair Trade Practices Ac...
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MEMORANDUM Before the court is the Trustee’s Objection to Claim of Exemption (Fil. # 95), and the Resistance by the debtors (Fil. # 104). The debtors assert that a lump-sum wrongful death settlement paid to their deceased daughter’s estate, and subsequently paid from the estate to debtors, is exempt from claims of the debtors’ creditors under Nebraska Revised Statutes §§ 25-1563.02 and 44-371...
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MEMORANDUM OPINION This matter is before the court, and is ripe for decision, on the defendants’ motion for summai’y judgment. The plaintiff, a Chapter 11 debtoi*-in-possession, (hereinafter “debt- or”) relies on 11 U.S.C. § 548(a)(2) to recover real property which he lost through a land sale contract foi’feiture. The defendants have asked the court to apply the holding of BFP v. Resolution Tm...
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MEMORANDUM DECISION I. INTRODUCTION Plaintiff Swiss Bank Corporation (“Swiss Bank”), as agent for Mitsubishi Bank Limited, Dresdner Bank AG, Caisse Nationale de Credit Agricole, and Instituto Bancario San Paolo di Torino (collectively, “Banks”) filed a complaint seeking a declaration that Banks’ lien on a 3/8 inch strip of real property (the “Strip”) currently owned by debtor Van Nes...
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MEMORANDUM OF DECISION ON OBJECTIONS TO DEBTOR’S CLAIM OF EXEMPTIONS AND TO MOTION TO AVOID JUDICIAL LIEN I. Robert A. Herd, the debtor, in his Chapter 7 petition filed on August 3, 1994, claimed, pursuant to Code § 522(d)(1) and (5), a $7,900 exemption in his residence, described as a “1976 Egghabor [sic] 33’ Boat.” The debtor’s schedules listed the boat, valued at $15,000, as subject to a...
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MEMORANDUM OPINION Creditor the United States of America through the Internal Revenue Service (hereafter IRS) has moved the court for relief from the automatic stay to apply certain proceeds arising from contracts entered into between Medina Reforestation and the United States Department of Agriculture (hereafter USDA) to the debtors’ tax debt. The IRS has waived its right to a final dete...
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ORDER DENYING TRUSTEE’S MOTION TO DISMISS ADVERSARY PROCEEDING WITH PREJUDICE The Chapter 7 Trustee moves for an order approving a settlement with the Debtors pursuant to which the Debtors would pay to the estate $24,000 in exchange for a dismissal of this adversary proceeding and a full release of claims of the estate against Classic Electric Company. The Trustee objects to the Debtors’ disc...
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ORDER This matter is before the Court on confirmation of the Third Amended Plan of Reorganization filed by the debtor. Objections to the proposed plan were filed by Citizens Bank & Savings, White and Son Enterprises, Inc., and the trustee, Jan Eberhardt. The hearing in this matter was held on the 21st day of July, 1994. From the evidence presented, the Court makes the following findings of fact. ...
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MEMORANDUM OPINION Before the court is an objection filed by Schewel Furniture Company, Inc. (Schewel) to confirmation of the chapter 13 plan of debtor Dorothy E. Leftwieh. FACTS The debtor has purchased a number of items of furniture from Schewel pursuant to installment sale agreements over the past few years. The earliest relevant contracts are two dated October 14, 1991. ...
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OPINION A minor and her guardian filed a civil suit in state court alleging that the debtor had had non-consensual sexual intercourse with *21 the minor. The debtor filed a Chapter 7 2 petition prior to the state court trial. The minor’s attorney alleged that he never received the notice of the § 341(a) meeting of creditors, but did receive actual notice of the...
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OPINION OVERVIEW The debtor and his spouse executed a marital settlement agreement which transferred to the spouse as her separate property a beneficial interest in a partnership held for her in trust and separate ownership of the family residence. In return, the debtor received as separate property his spouse’s community interest in his medical practice and in his legal educatio...
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OPINION I. FACTS In September 1989 Debtor William Ramsey (“Ramsey”) entered into negotiations to borrow money to refinance his house. A group of investors (“the Investors”) 2 became the lenders under the note and are the appel-lees to the instant appeal. Vista Mortgage Corporation (“Vista”) arranged the loan as real estate broker, prepared the required federal disclosu...
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OPINION I The court denied the appellant’s application to be employed as counsel for the debtor in possession on the basis that counsel was not disinterested. Later, the appellant filed a fee application requesting administrative claim status for the fees it charged in providing services to the debtor in possession. The court denied this application. We AFFIRM, but base our ruli...
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OPINION I MCI Telecommunications Corporation (“MCI”) appeals an order of the bankruptcy court denying MCI’s motions to stay an adversary proceeding pending arbitration and for relief from the automatic stay to assert a counterclaim in the arbitration proceeding. We hold that a bankruptcy court must enforce an agreement to arbitrate a claim that is noneore. Accordingly, we REVERS...
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MEMORANDUM OF DECISION These administratively consolidated Chapter 11 cases have come before the court on the debtors’ motion to approve a settlement of certain claims arising from a failed leveraged buyout. The settlement is supported by the debtors’ major secured creditors and the unsecured creditors’ committee. It is opposed by Tamona Enterprises, Inc., and fifty-five other general uns...
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OPINION The debtors filed an objection to an amended proof of claim filed by a secured party after the secured party foreclosed on the collateral eight months after repossession. The debtors assert, in an effort to bar the secured party from obtaining a deficiency judgment, that the secured party elected to retain the collateral in satisfaction of the obligation and that the sale was ...
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MEMORANDUM OPINION This matter is before the Court on the debtor’s Motion for an Order avoiding the hen of the Internal Revenue Service (“I.R.S.”) on certain real property, filed herein on June 1, 1993. The debtor filed his Memorandum in Support on November 22, 1993, and the I.R.S. filed its Response on December 20, 1993. An Agreed Order setting the briefing schedule in this matter had been ente...
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Memorandum Opinion The matter before the Court is the confirmation of the Chapter 13 plan of the debtors, Thomas W. and Joy A. Smith (the “Smiths”) and the objection thereto of Diversified Financial Systems, Inc. (“Diversified”), a secured creditor. Also before the Court is a request for sanctions brought by Diversified in its motion to compel discovery. The Court ruled upon the motion to com...
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OPINION AND ORDER DENYING APPLICATION TO EMPLOY ATTORNEY WITHOUT PREJUDICE This matter is before the Court on Perrys-burg Marketplace Company’s (the “DIP”) application to employ the law firm of Nathan & Roberts (the “Firm”) as attorneys for the DIP (the “Application”) and the United' States Trustee’s (“UST”) objection thereto. The Court finds that the Application is not well taken and sho...
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MEMORANDUM OPINION ON CONFIRMATION OF THE DEBTORS’ CHAPTER 13 PLAN The Debtors filed a voluntary petition for relief under chapter 13 of the Bankruptcy Code on June 8, 1994. That date was one day after they received their chapter 7 discharge in Case No. 94-20214.1 In this case, Saginaw Automotive Federal Credit Union objected to the confirmation of the plan and so a full evidentiary hearing was...
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*456 OPINION AND ORDER EXCEPTING DEBT FROM DISCHARGE This matter is before the Court upon Katy McLeod’s (“Debtor”) complaint to determine dischargeability of an educational debt of $3,000.00 (the “Loan”) under 11 U.S.C. § 523(a)(8) to which Nebraska Student Loan Program, Inc. (“Lender”) has filed an answer. Lender has filed a counterclaim for judgment on the note evidencing the Loan. Upon con...
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MEMORANDUM OPINION Several matters are before the court at this time. The United States trustee argues that granting debtors relief would be a substantial abuse of chapter 7 of the Bankruptcy Code and has moved to dismiss debtors’ chapter 7 petition pursuant to § 707(b) of the Code. Debtors oppose the motion and deny that granting such relief would constitute substantial abuse. Debtors in...
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MEMORANDUM OPINION Several matters are before the court at this time. Doctor’s Associates, Inc. has brought a motion (at No. 94-1279M) seeking payment as an administrative expense of postpetition *26royalties and advertising fees that accrued pursuant to certain franchise agreements. Subway Real Estate Corporation and Subway Restaurants, Inc. have brought motions (at Nos. 94-1280M and 94-1281M,...
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ORDER ON OBJECTION TO PROOF OF CLAIM THIS MATTER is before the Court on an objection filed by Barnett Bank of Alachua County, N.A. (the “Bank”), a creditor, to the claim of Iantha Whittaker, another creditor. *362 At a hearing on the Bank’s motion, the Court granted leave to the parties to file memoran-da of law regarding the validity of Mrs. Whittaker’s claim. At issue i...
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ORDER DENYING PLAINTIFF’S MOTION FOR REHEARING THIS MATTER is before the Court on the motion of the plaintiff, Woodman H. Miner, Sr. for rehearing with respect to this court’s order dismissing the instant adversary proceeding for failure to state a claim upon which relief can be granted. For the reasons set forth herein, the Motion for Rehearing shall be denied. In this proceedin...
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MEMORANDUM OPINION THIS MATTER came on for hearing on the Motion of the debtor, Susan Lynn Raper, for contempt against the Santa Rosa Teach *108 ers’ Federal Credit Union for the violation of the automatic stay provisions of 11 U.S.C. § 362(a). Having heard the testimony of the witnesses, and considered the documentary evidence presented, arguments of counsel, and memoran...
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MEMORANDUM OPINION This matter is before the Court on a complaint filed by the plaintiff, Opal Jean Burgess, seeking the Court to determine that a debt owed to her by the defendant, Tammy Sue Martin, is non-dischargeable pursuant to 11 U.S.C. § 523(a)(6). The trial in this matter was held on the 26th day of July, 1994. From the evidence presented, the Court makes the following findings of fac...
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ORDER This matter is before the Court upon the motion of Jim Walter Homes, Inc., for relief from the automatic stay pursuant to 11 U.S.C. § 362 in order to obtain possession of real estate. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A) an...
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MEMORANDUM OPINION This adversary proceeding was tried before the Court on July 26, 1993 on a complaint by the plaintiffs asserting that certain obligations stemming from their investment in the proposed real estate development project with the debtor are nondischargeable under § 523(a)(2)(A) of the Bankruptcy Code as involving monies advanced and obtained by “false pretenses, a false...
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DECISION GRANTING MOTION TO DISMISS Erith Fern Wright (the “Plaintiff’), an officer and shareholder of the debtor-corporation, Buildwright Homes, Inc. (the “Debtor”) filed an adversary proceeding in this court. In this complaint the Plaintiff alleges that the United States, through its agency, the Internal Revenue Service (“IRS”), filed a *866Notice of Federal Tax Lien against the Debt- or to sec...
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ORDER DENYING DEBTOR/DEFENDANTS MOTION TO DISMISS This matter is before the Court on the motion filed by debtor/defendant Ali R. Ham-rah to dismiss Mary J. Smith’s amended complaint objecting to discharge. Hamrah bases his motion on the failure of Smith’s counsel to serve the summons and complaint within ten days of issuance of the summons as required by Fed.R.Bankr.P. 7004(f). *110 FACT...
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MEMORANDUM OPINION The matter before the court is a motion filed on behalf of Debtor for reconsideration of our order of March 24, 1994, denying confirmation of the joint plan of reorganization filed by Debtor and the law partnership of Marriner and Crumrine on feasibility grounds. Objections to the motion were filed by Encotech, Inc., Bernard Lalli, Rosalyn Lalli, the Middle Monongahela Industria...
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OPINION In this adversary proceeding, Catherine B. Stebbins-Hopf (the “Debtor”) seeks to discharge approximately $9500 of government guaranteed student loans held by the Texas Guaranteed Student Loan Corporation (“TGSLC”) under section 523(a)(8)(B) of the Bankruptcy Code 1 on the grounds that repayment of the loans will constitute an undue hardship. The question presented is whether a single ...
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MEMORANDUM OPINION In these consolidated adversary actions, Hughey L. Debolt, a chapter 13 debtor (hereafter “Debtor”), seeks a determination that certain obligations pursuant to orders of the Ohio state court in his divorce proceeding created debts dischargeable in this bankruptcy- At Adversary 93-2552, Debtor contends that Mary L. Debolt, his ex-wife, possesses a dischargeable clai...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The within motions presently before the Court were filed on September 23, 1994, by Hudson Engineering Corporation (“Hudson”). Hudson seeks to consolidate adversary proceedings 93-70055A, 94-70113A, and 94-70112A, pending before this Court pursuant to Federal Rule of Civil Procedure (“Fed. R.Civ.P.”) 42(a), as made applica...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER On November 4, 1998, Community Bank, N.A. (“Community Bank”) commenced an adversary proceeding against David A. Lyons (“Debtor”) and his nondebtor wife, Susan Lyons (“Mrs. Lyons”), seeking a determination concerning their respective interests in rental income generated by real property jointly owned by them. The Debtor re...
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MEMORANDUM OPINION AND ORDER This Contested Matter comes before the Court on the Motion for Relief from the Automatic Stay filed by CMF Loudoun Limited Partnership (“CMF”), the holder of a security interest in property owned by the debtor, Nattchase Associates Limited Partnership (“Nattchase”), which collateral consists of real property located in Loudoun County, Virginia. The obligat...
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OPINION INTRODUCTION TWA filed its Chapter 11 petition on January 31, 1992. TWA served as debtor-in-possession during the entire case, and its second amended plan of reorganization (the “Plan”) was confirmed on August 11, 1993, effective November 3, 1993. TWA commenced this adversary proceeding on March 10, 1992 (the “Adversary Proceeding”). On June 23, 1992, the Court authorized...
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INTRODUCTION Before the court are Counts I and II of an adversary proceeding brought by the Plaintiffs-Debtors against Defendants Federal Deposit Insurance Corporation and Recoil Management Corporation in which Plaintiffs seek (a) as Count I, the enforcement of the automatic stay of 11 U.S.C. § 362(a) and damages relating to the violation thereof and (b) as Count II, the turnover of certain prop...
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MEMORANDUM This matter came before the court upon the Notice and Application for Allowance of Compensation and Reimbursement of Expenses filed by counsel for the debtor and the objection of the United States Department of Housing and Urban Development (“HUD”). The issue presented is whether funds in which HUD has a security interest may be used to pay the debtor’s attorney fees incurr...
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AMENDED DECISION ON SANCTIONS 1 Once in a long while an attorney for the debtor in possession in a chapter 11 case, who is an officer of the court, engages in *519 conduct which is sufficiently violative of that relationship that sanctions must be imposed so as to preserve the integrity of the bankruptcy process. This is such a ease. I. The sanctionable conduct arises from statements ma...
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OPINION AND ORDER GRANTING ORDER FOR RELIEF UPON INVOLUNTARY PETITION This matter is before the Court on the involuntary bankruptcy petition filed by Neill Ann Hancock, Administrator, WWA of the Estate of Louis A. Schultz (“LAS Estate”), Kadish & Bender (“K & B”), Neill Ann Hancock, Executrix of the Estate of Ann J. Schultz (“AJS Estate”), Yamaha Motor Corp., U.S.A (“YMC”), and Prospec El...
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MEMORANDUM OPINION The matter before the Court is the Motion of Defendants Helmsley-Spear, Inc. and Northern Illinois Gas (collectively referred to *694 as “Defendants”) to Dismiss Count VII and XI, respectively, of the Plaintiffs Complaint. Catherine Steege, not individually but as Trustee (“Trustee” or “Plaintiff’) for the Estate of Superior Toy and Manufacturing Co., I...
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MEMORANDUM IN SUPPORT OF ORDER OVERRULING OBJECTIONS TO CLAIM NOS. 708, 801, 804 AND 834 The debtor’s agent, Edward Hostmann, Inc. and the unsecured creditors’ committee objected to various priority tax claims filed by several states. The common issue presented is whether the unpaid priority tax claims which were allowed in the debtor’s first chapter 11 (“Sprouse I”) retained their priority cha...
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MEMORANDUM OPINION Before the court are seven adversary proceedings, each brought by the Assistant United States Trustee for the Western District of Virginia against Martin Garrett, Allan Garrett, and Joe Garrett, all of whom are affiliated with the Garrett & Garrett law firm of Danville, Virginia. In each proceeding, the Trustee requests that the defendants be permanently enjoined fr...
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MEMORANDUM OPINION AND DECISION This cause originally came before the Court upon the Motion For Order of Dismissal of this Chapter 12 case by creditor Grower Service Corporation (hereafter “Grower”), and upon Debtor’s Response. Memoranda were filed on the Motion, and a Hearing was held. At the Hearing, the Court instructed the parties to file additional memoranda. Debtor filed a Motion For Conv...
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*860 MEMORANDUM OPINION AND ORDER This cause comes before the Court on Plaintiffs Complaint to Determine Dis-chargeability of a Debt. A trial was held which the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the arguments of Counsel, exhibits, relevant statutory and cas...
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MEMORANDUM OPINION This adversary proceeding involves a dispute between two law firms who represented *284 the same creditor in this bankruptcy case over their rights to payment from a promissory note. The makers of the note are the debtor and its principals, the Linehans. Because of the lawyers’ dispute over the note payments, the debtor commenced this adversary pro...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court upon arguments by counsel for both parties presented in letters filed with the Court. This Court has reviewed the arguments of counsel, exhibits, as well as the entire record-in the case. Based upon that review, and for the following reasons, the Court finds that the Defendant shall return all funds withdrawn from the Plaintiff...
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MEMORANDUM The issues before the Court concern (1) the adequacy of notice to a creditor of a bankruptcy filing, and (2) the bankruptcy court’s discretion to extend the deadline for filing complaints objecting to a debtor’s discharge and to nondischargeability of a claim, after the expiration of the filing deadline. A. PROCEDURAL HISTORY The facts involved in this case are no...
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OPINION REGARDING CONFIRMATION OF CHAPTER 13 PLAN INTRODUCTION On April 20, 1994, Great Lakes Exteriors, Inc., obtained a default judgment in Oakland County circuit court against Patrick Mannor. The judgment is for $41,383.30, an amount which comprises damages of $41,020.46 and $362.84 in interest, costs and attorney fees. Mannor filed for chapter 13 relief eight days later. His Schedule F in...
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ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS The Plaintiff in this adversary proceeding, Oscar Huff, has filed a Notice of Appeal and an Amended Notice seeking reversal of this Court’s order declaring dischargeable any debt owed to him by Jessé Brooks pursuant to 11 U.S.C. § 523(a)(6). 1 Mr. Huff has filed a motion seeking leave to appeal in forma pauperis pursuant to 28 U.S.C. § 19...
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ORDER GRANTING MOTION TO ALLOW VETERINARIAN TESTIMONY This matter comes before the Court pursuant to the Motion to Allow Veterinarian Testimony filed by Peoples State Bank and Trust Co. (“plaintiff’) on September 16,1994. A hearing was held on October 24, 1994, and the Court took the matter under advisement upon the subsequent filing of briefs by the parties. Plaintiff appeared by and through it...
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OPINION AND ORDER GRANTING, IN PART, MOTION TO MODIFY MARCH 13, 1994 ORDER THIS MATTER comes before the Court on the Chapter 7 Trustee’s motion to modify, or effectively void, a cash collateral agreement which grants a tax lien creditor, the State of Colorado, summary relief from the automatic stay on conversion of the Debtor’s Chapter 11 case to Chapter 7. 1 The Trustee oppose...
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MEMORANDUM OPINION GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Introduction The United States of America on behalf of its agencies, the Internal Revenue Services and the Department of Housing and Urban Development, by and through the attorneys for the Eastern District of Michigan brought this motion pursuant to Fed.R.Civ.P. 56. This matter is before the Court upon P...
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AMENDED OPINION The debtor’s plan proposed a “dirt for debt” transfer to two lienholders encumbering the primary asset of the estate. The first position lienholder objected to the plan on the grounds that: (1) the plan erroneously estimated the value of the land to be exchanged; (2) the plan was not proposed in “good faith;” (3) the plan violated the “best interests of creditors” test...
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MEMORANDUM OF DECISION Mary Hainline, a creditor and former spouse of the debtor, moves for relief from the section 362 automatic stay. I. BACKGROUND Mary Hainline, formerly known as Mary Neal (“Hainline”), was married to debtor Thomas Neal (“Neal”) for approximately six years. During their marriage, Neal attended medical school while Hainline provided the couple’s primary support. Towa...
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MEMORANDUM OPINION This dischargeability action arises out of a transaction in which the plaintiffs purchased a new residence from a corporation in which the debtor was the chief operating officer and one of the principal shareholders of the corporation. The plaintiffs contend that there were numerous defects in the structure and that they sustained substantial monetary damages in cor...
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ORDER This matter is before the Court on a motion filed by the debtors for the return of certain personal property, to hold Don Johnson in contempt of court for willful violation of the automatic stay, and for actual and punitive damages. 11 U.S.C. § 362(h). The hearing in this matter was held on the 20th day of September, 1994. From the evidence presented, the Court makes the following findi...
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*387 ORDER At Butte in said District this 7th day of December, 1994. In this Chapter 7 case, the Chapter 7 Trustee filed a Motion To Determine Tax Liabilities and payment thereof after sale of an asset by the estate which resulted in substantial federal and state capital gains taxes. The motion is resisted by the U.S. Internal Revenue Service (IRS) and Office of the U.S. Tru...
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ORDER This matter coming before the Court upon the motions of Herman E. Thomason and Michael C. Matsos, individually and on behalf of Executive Park Hotel, Ltd. (“movants”), seeking relief from the automatic stay concerning the Ramada Inn in Huntsville, Alabama under 11 U.S.C. section 362(d), and seeking conversion or dismissal of this case under 11 U.S.C. section 1112; and after notice and a h...
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MEMORANDUM OPINION On April 28,1994, the court held a hearing on the objection of Debtor to the request of Clarklift South, Inc. for payment of administrative expenses in connection with a certain lease dated February 28, 1990, of two forklifts by Debtor. The court also considered the limited objection of Congress Financial Corp. to such request for administrative expenses. At the con...
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OPINION Clarence E. Shaw and Betty Shaw (“Shaws” or “Debtors”), filed a Complaint to cancel a second mortgage held by Federal Mortgage and Investment Corp. (“Federal”) and to disallow Federal’s proof of claim. In response, Federal filed an Answer and asserted a counterclaim against the Shaws. Federal also filed an Amended Answer. Before the Court is the Shaws’ motion requesting Partial Su...
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ORDER DETERMINING VALUE OF COLLATERAL AND APPROPRIATE INTEREST RATE The matter before the court is the motion of the chapter 13 debtors, John and Earnestine Adams, to value collateral and to determine the appropriate interest rate to be paid on a partially secured arrearage claim. A hearing was held in Raleigh, North Carolina on September 6, 1994. Mr. and Mrs. Adams filed their chapter 13 petition...
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OPINION AND ORDER On October 25, 1994 Plaintiff presented their case against the Defendants relative to a Complaint objecting to the dischargeability of certain debt incurred by the Debtor/Defendants. That Complaint was filed under 523(a)(2)(A) and alleged that various charges made by the Debtors within days of their bankruptcy filing were debts that should not be discharged because of “false pret...
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OPINION AND ORDER The Debtor-in-Possession, Berwick Associates, Ltd., has filed an Objection to the Proof of Claim of the Columbia County Tax Claim Bureau alleging an indebtedness arising from real estate taxes for the years 1991 and 1992 in the amount of One Hundred Seventy-Three Thousand Seven Hundred Eleven and 49/100 Dollars ($173,711.49). The Objection challenges the allegation by the Ta...
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OPINION AND ORDER The Debtors have filed a Chapter Seven bankruptcy and, in that bankruptcy, have filed a Motion to Avoid a Judicial Lien against the Respondent, Corkscrew Woodlands Associates, Inc. (hereinafter “Respondent”). The Debtors are the owners of a parcel of real estate situate in Estero, Florida, the value of which is claimed to be Thirty-Eight Thousand Dollars ($38,000.00)...
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OPINION AND ORDER The facts are not in dispute. The Debtors, John and Dalen Castellanos (hereinafter “Debtors”), have filed a complaint under 11 U.S.C. § 506 of the bankruptcy Code in an attempt to “strip down” two of three mortgages against their property. It is stipulated that a first mortgage lien of Sovereign Bank f/k/a Penn Savings Bank is collateral for an indebtedness of Sixty-Eight ...
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OPINION AND ORDER The court has for consideration the Objection of the United States Trustee to the Disclosure Statement of Pagnotti Enterprises, Inc.. For the reasons provided below, the objection to the disclosure statement is sustained. The United States Trustee’s objection to the disclosure statement is based on one fact; the disclosure statement is not signed by the attorney who prepared it...
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OPINION AND ORDER Before the court for consideration is an Objection of Joseph Gorman, Esquire, Trustee in Bankruptcy, (hereinafter “Trustee”), to claim number 18 filed on or about March 11, 1992 by Honesdale National Bank, (hereinafter “Bank”), in the approximate amount of Two Hundred Forty-Five Thousand Dollars ($245,000.00). The Trustee is currently holding the settlement proceeds of litig...
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OPINION AND ORDER Before the court is an objection by Richard Simpson, (hereinafter “Objector”), to the Debtor’s proposed Chapter 11 Plan and also, a Motion filed by Richard Simpson and Phyllis Simpson, (hereinafter “Movants”) request*638ing the lifting of the automatic stay so that the Movants can proceed to enforce their state law remedies against certain real estate owned by the above-captio...
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OPINION AND ORDER The facts in the controversy before the Court are not in dispute. Blue Coal Corporation, a bankruptcy filed to Case No. 76-1311, is a creditor of Beltrami Enterprises, Inc. and Lucky Strike Coal Corp. which are related Chapter 11 bankruptcy cases filed to 5-91-00866 and 5-91-01571 respectively. Both Beltrami and Lucky Strike listed Blue Coal as a “disputed” creditor ...
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OPINION AND ORDER Pending for resolution are various objections filed to the Debtors’ Third Amended Plan. For the reasons provided herein, the objections are sustained. The court, however, will continue the automatic stay or injunction, as the case may be, for an additional forty-five (45) days from the date of this Opinion and Order.1 Within this forty-five (45) day period, the Debtors must fi...
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MEMORANDUM OF DECISION By motion, the United States Trustee seeks an order of disgorgement of attorney’s fees from Attorney Steven A. Adamson in the amount of $4,000.00. FACTS This case was filed by the debtors, D. Earl Campbell and J. Mae Campbell under chapter 11, on November 5, 1992. The petition and schedules filed by the debtors included a statement of attorney compensation to the effect M...
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MEMORANDUM This matter comes before the Court on the defendant’s Motion to Dismiss Complaint of the Securities and Exchange Commission filed August 16, 1994. In support of their motion to dismiss, the defendant states that the Court lacks jurisdiction over the issues raised by the Complaint, that the Commission lacks standing to bring an action under Section 523 and that the complaint...
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MEMORANDUM OPINION I. INTRODUCTION The matter before the court is a motion for sanctions by the Northern Trust Company (“Northern”) against Douglas Gowan (“Gow-an”), Gowan’s motion to dismiss the Northern’s motion, and Gowan’s counter-motion for sanctions against the Northern and its attorneys. VIII South Michigan Associates (“Debtor”) is a limited partnership which held a l...
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*971MEMORANDUM OPINION ON TRUSTEE’S MOTION FOR SUMMARY JUDGMENT AS TO COUNTS II AND III OF THE COMPLAINT This matter is before the court on the Trustee’s Motion for Summary Judgment (“Summary Judgment Motion”) in his favor on two counts of his second amended complaint (“Complaint”). Counts II and III of the Complaint seek to avoid certain ownership transfers made by Larry Miller (“Larry”) and Bar...
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OPINION Before the Court is the Trustee’s motion to resolve the Trustee’s objection to the claim of exemption to the proceeds of the Debtor’s Individual Retirement Account (“IRA”) and declaring the IRA to be property of the estate. The Court heard argument on December 13, 1993 and reserved the decision. The following constitutes the Court’s findings of fact and conclusions of law. ...
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MEMORANDUM This case came before the court for hearing on May 17, 1994, upon the debtors’ motion filed April 20, 1994, requesting an order finding that attorney David Lufkin “has willfully violated the automatic stay of 11 U.S.C. § 362(a), thereby committing civil contempt.” This is a core proceeding. 28 U.S.C. § 157(b)(1) and (b)(2)(0). See In re Depew, 51 B.R. 1010, 1014 ...
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MEMORANDUM OPINION RE CONFIRMATION OF DEBTOR’S PLAN The Debtor in Possession, the Beare Company, has proposed a Plan of Reorganization which is before this Court for confirmation. The only creditor objecting to confirmation is First American National Bank (“Bank”), Debtor’s largest secured creditor. This memorandum opinion contains findings of fact and conclusions of law. Fed.R.Bankr.P. 7...
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MEMORANDUM OPINION AND ORDER DENYING DEBTOR’S APPLICATION FOR WAIVER OF THE CHAPTER 7 FILING FEE On October 13, 1994, the debtor, Cynthia L. Rainey Thompson, filed a Voluntary Chapter 7 Petition, together with completed Schedules and Statements, as well as an application for waiver of the Chapter 7 filing fee. 1 A hearing was held on November 16, 1994 to determine whether the debtor is entitl...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE INTEREST RATE DETERMINATION This cause is before the Court for a determination of the appropriate interest rate to be paid to First American National Bank (“First American”) on a pre-petition debt. This Court must first determine whether the interest rate on the pre-petition debt may be adjusted. If so, the court must then determine the proper ra...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW RE DEBTOR’S MOTION FOR APPROVAL OF ASSUMPTION OF EXECUTORY CONTRACTS This matter is before the court on a Motion for Approval of Assumption of Executo-ry Contracts filed by the Debtor, The Beare Company. After thoroughly reviewing the documents presented to the court and considering the testimony given by witnesses, as well as the record as a whole,...
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MEMORANDUM ON OBJECTION TO CONFIRMATION FILED BY SECURITY PACIFIC HOUSING SERVICES Security Pacific Housing Services (Security Pacific), a secured creditor, objects to confirmation of the debtor’s Chapter 13 Plan filed September 9,1994, as modified on October 19, 1994, by a First Amended Plan Prior to Confirmation (Plan). The sole confirmation issue is whether the Plan, which provides for the...
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MEMORANDUM The debtor, Ruby Helen Daugherty, commenced this adversary proceeding on October 13, 1993, seeking a determination that two educational loans owing First Tennessee Bank (Bank) are dischargeable under the “undue hardship” provisions of 11 U.S.C.A. *955 § 528(a)(8)(B) (West 1993). The Bank filed a Countercomplaint on January 28, 1994, seeking a determination that...
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OPINION AND ORDER Before the Court is a Motion for Summary Judgment (docket No. 8) 1 filed by the trustee of debtor Kiddy Toys, Inc. (Kiddy) on October 1, 1992 against defendant PRUSA Distributing Corp. (PRUSA) pursuant to 11 U.S.C. § 547. Defendant filed its Opposition and Request for Summary Judgment (docket No. 17) on February 3,1993 to which plaintiff filed its Reply (d...
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*162 MEMORANDUM OF DECISION RE: TRUSTEE’S OBJECTION TO DEBTOR’S CLAIM OF EXEMPTION UNDER CODE § 522(d) (10) (C) I. ISSUE The issue presented is whether Bankruptcy Code § 522(d)(10)(C) permits a debtor to exempt from the bankruptcy estate a $25,000 insurance disability payment received nine days prior to the filing of his petition, where the payment remained segregated in the debtor’s bank acco...
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MEMORANDUM OPINION This adversary proceeding was brought by the plaintiffs, who are the Chapter 7 trustee for the debtors and NationsBank of North Carolina, one of the principal creditors of the debtors. The purpose of this proceeding is to “invalidate, avoid, and cancel” a deed of trust which was executed by the debtors on November 18, 1991. The deed of trust was executed to secure a...
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ORDER THIS MATTER comes before the court upon an adversarial proceeding filed by Corestates Bank of Delaware, N.A. (“Cores-tates”) seeking to have a $5,820.48 debt owed to it by one of the joint debtors, Charles M. Richardson (“Charles Richardson”), excepted from discharge pursuant to 11 U.S.C. 1 Section 523(a)(2)(A). 2 A hearing on the matter was held on September...
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ORDER THIS MATTER comes before the Court upon an adversarial proceeding filed by Aet-na Life & Casualty Company (“Aetna”) seeking a determination as to whether it is entitled to a recoupment of pre-petition over-payments under a disability insurance policy from post-petition payments to one of the joint debtors, Cecilia E. LaPierre (“La-Pierre”), and if so, what is the amount subject to t...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW On March 7, 1994, came on to be heard this declaratory judgment action. Following are the Court’s Findings of Fact and Conclusions of Law. Findings of Fact 1. Molly Bartholow, Standing Chapter 13 Trustee (“Trustee”) is in a quandary as to the disbursement of automobile insurance proceeds paid by Allstate Insurance Company (“Allstate”) to “Lecinda ...
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ORDER In this Chapter 13 case the Chapter 13 Trustee (“Trustee”) has objected to confirmation of the Debtors’ Chapter 13 Plan on the grounds it fails to satisfy the “disposable income” test of 11 U.S.C. § 1325(b)(1)(B) by failing to include $914 per month in exempt social security disability income when determining the amount of payments to be made under the Plan. 1 The Debtors respond that t...
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MEMORANDUM OPINION This matter comes before the Court on The Riggs National Bank of Washington, Incorporated’s (“Riggs”) complaint to determine the dischargeability of a debt allegedly owed to it by George T. Ross (“Ross”). Upon consideration of the memoranda submitted, arguments of counsel, and evidence presented at the May 6, 1994 trial and the parties’ proposed findings of fact and...
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ORDER APPROVING IN PART AND DENYING IN PART APPLICATION FOR FINAL PAYMENT OF ATTORNEY’S FEES AND EXPENSES Before the Court is an Application For Final Payment Of Attorney’s Fees And Expenses (“Application”) filed by Robert R. Barron, P.C. (“Applicant”) on September 6, 1994. The Applicant seeks approval to apply a $2,490.00 prepetition retainer to approved fees and expenses. The United Sta...
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MEMORANDUM OPINION Before the court is a complaint objecting to the dischargeability of a debt allegedly1 owed by defendant to plaintiffs under 11 U.S.C. § 523(a)(2)(A). This alleged debt arose from plaintiffs’ purchase of a part-time podiatry practice from defendant. Specifically, plaintiffs claim they sustained approximately $30,000.00 in damages as a result of misrepresentations made by defen...
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ORDER This matter is before the Court on debtors’ objection to the proof of claim filed by the United States for priority income tax debts. Debtors contend that the claim should not be allowed because it was filed more than ninety (90) days following the petition date. The United States contends that (1) their formal proof of claim merely amended a timely informal claim and thus, the ...
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ORDER REGARDING RENEWED MOTION FOR SANCTIONS INTRODUCTION This matter involves a renewed motion for sanctions brought by the Chapter 7 Trustee, *950James M. Ford, against the United States Trustee and Mark St. Angelo. The United States Trustee and Mark St. Angelo appealed the sanctions order originally issued by this court. On appeal the District Court reversed and remanded the sole issue of monet...
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ORDER I. INTRODUCTION The Court held an evidentiary hearing on two discrete issues relating to the confirmation of this Debtor’s Plan of Reorganization. These are 1) whether a consenting impaired class has accepted the Plan as required by 11 *428 U.S.C. § 1129(a)(10), and 2) whether the Class 5 vote cast by creditor Southeast Deer Valley Associates (“SEDV”) should be des...
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ORDER ON MOTION FOR STAY PENDING APPEAL The movants are creditor parties to a Kansas industrial revenue bond transaction financing the construction of a Holiday Inn Hotel operated by debtor in Olathe, Kansas. 1 This Court entered an order on August 5, 1994, denying the creditors’ joint motion for relief from automatic stay aimed at gaining possession of the hotel. 2 ...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion filed June 6, 1994, by Brian A. Bromka (“Bromka”) to dismiss the complaint filed by Anthony J. Comis and Elizabeth C. Comis (“Debtors”) on December 9, 1993, against Bromka and the County of Oneida (“County”). Also before the Court is a second motion filed June 6,1994, by Bromka seeki...
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MEMORANDUM OPINION Andrew Schwartz, the chapter 7 trustee of Harry Levin, Inc., t/a Levin’s Furniture, has commenced two separate adversary proceedings. The first, Adv. No. 94-0451, has *564 named Peter J. Kursman as the sole defendant, while the second, Adv. No. 94-0452, names Jetronic Industries, Inc. as the sole defendant. Both proceedings were filed on June 3, 1994. ...
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MEMORANDUM OPINION Before the court is a motion filed by the Standing Trustee and joined in by the debtors which, in effect, seeks modification of the debtors’ confirmed plan to reclassify the secured claim of Chrysler Credit Corporation (“Chrysler”). Also before the court is Chrysler’s objection to the motion. Having considered the motion, the objection and the undisputed facts and having he...
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MEMORANDUM OPINION The matter before the court is a motion for relief from automatic stay filed on behalf of Margaretten & Company, Inc. (“Margaret-ten”), which was objected to by the trustee. Margaretten seeks relief from the automatic stay in order to foreclose on the “lot and improvements” located at 4350 Ben Lane, Walkertown, North Carolina. The dispute arises from the fact that t...
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OPINION This adversary proceeding is before the Court on the complaint of Bank One Columbus, N.A. (“Bank One”) the issuer of a credit card to the defendant-debtor, Frances Cutri McDonald (“the Debtor”), seeking to except its claim from discharge pursuant to 11 U.S.C. 523(a)(2)(A), (a)(2)(B), and (a)(2)(C). Bank One also requests costs and attorney’s fees incurred in pursuit of this ac...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW ON MOTION FOR LEAVE TO FILE NOTICE OF APPEAL Pursuant to Bankruptcy Rule 7052, following are the Court’s Findings of Fact and Conclusions of Law on the motion of Kenneth L. Nichols (“Nichols”) for leave to file notice of appeal. Findings of Fact 1. On August 23, 1993, the Court heard Nichols’ Motion to Reopen Case. At the hearing, the Court ruled that Ni...
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MEMORANDUM OPINION Before the Court is the Debtor’s Motion for Approval of Disclosure Statement and Plan Voting Procedures (the “Motion”). The Debtor seeks approval of a Disclosure Statement in connection with its Third Amended Plan of Reorganization filed on October 3, 1994, more than one year after confirmation of Debtor’s Second Amended Plan of Reorganization (the “Confirmed Plan”)...
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MEMORANDUM OPINION Before the Court is the Motion of Arvi-da/JMB Partners (“Partners”) and Arvida Realty Sales (“Sales”), defendants in the above-captioned adversary proceeding (Partners and Sales are together referred to as “Movant”) to Dismiss Complaint for Injunc-tive Relief and Damages or, in the alternative, Motion for Abstention (the “Motion”). 1 Movant urges this Cou...
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MEMORANDUM OF DECISION NATURE OF PROCEEDINGS The Debtors and Defendants, Thomas Garcia Montes and Margaret Lourdes Montes (Debtors), filed a joint voluntary Chapter 7 petition for relief on July 2, 1993. Pursuant to 11 U.S.C. § 341(a), the first meeting of creditors was held on August 4, 1993. Mary Lucero (Mrs. Lucero) commenced the instant adversary proceeding on October 4, 199...
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MEMORANDUM OF DECISION NATURE OF PROCEEDINGS The Debtors, Peter Pham and Nancy Pham (“Debtors”), filed a joint voluntary Chapter 7 petition on August 1, 1994. The Debtors assert in them filed Schedule C entitled “Property Claimed Exempt” a $65,000 exemption in real property pursuant to California Code of Civil Procedure (“CCP”) § 704.730. The real property subject to the claimed exemption is ...
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OPINION AND ORDER GRANTING MOTION TO COMPROMISE PERSONAL INJURY CLAIM This matter is before the Court upon the motion of Sara J. Daneman, Chapter 7 Trustee (“Trustee”), to approve the compromise of the disputed wrongful discharge and discrimination claim against Johnson Controls, Inc., which is the subject of a lawsuit pending in the United States District Court for the Southern District of O...
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MEMORANDUM OPINION This matter came before the Court on First Union National Bank of Florida’s Objection to Debtor’s Exemptions. Appearing were Margaret Hull, Assistant United States Trustee, Mac Heavener, attorney for First Union National Bank of Florida, and Richard Hennings, attorney for the Debtor. After reviewing the pleadings, stipulation of facts, receiving arguments of counsel...
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MEMORANDUM OPINION AND ORDER DENYING DEBTOR’S “APPLICATION FOR WAIVER OF THE CHAPTER 7 FILING FEE” On October 25, 1994, the debtor, Donna R. Beeeham, filed a Voluntary Chapter 7 Petition, together with completed Schedules and Statements, as well as an application for waiver of the Chapter 7 filing fee. 1 A hearing was held on November 16, 1994 to determine whether the debtor is entitled to th...
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MEMORANDUM OPINION The Court has heard the Complaint for the Determination of Dischargeability of Claim and for Declaratory and Injunctive Relief filed by Buttes Gas and Oil Company against California Regional Water Quality Control Board (“Regional Board”), et al. (Docket No. 33), and after considering the pleadings, memoranda, testimony and arguments of counsel, the court ...
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MEMORANDUM OPINION The court has heard the Second Amended Application for Payment of Taxes as Post-Petition Administrative Expenses (Docket No. 236), and after considering the pleadings, memoranda, testimony 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 ...
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MEMORANDUM OPINION The Court has heard Beverly Jean Border’s Complaint To Determine Dischargeability of a Particular Debt (Docket No. 1), and after considering the pleadings, evidence, and argument of counsel makes the following findings of fact and conclusions of law and renders a Judgment for Plaintiff. To the extent that any findings of fact are deemed to be conclusions of law they...
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ORDER On November 8, 1993, Myra Stanley, the debtor, filed a voluntary petition for relief under the provisions of Chapter 13 of the United States Bankruptcy Code. The debt- or’s schedules list Superior Federal Bank (Superior Federal) as a secured creditor with a claim in the amount of $10,600.00. The collateral for this secured debt is listed on the debtor’s schedules as “...
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ORDER THIS MATTER comes before the Court on the Debtor/Defendant’s Motion to Alter or Amend Memorandum Opinion and Judgment of November 23, 1994, 179 B.R. 253, and Extend Time for Appeal filed on December 5, 1994. The Court, having reviewed the file and being advised in the premises, DOES FIND as follows: 1. The Debtor/Defendant filed his Motion to Alter or Amend Memorandum Opinion and Judgment o...
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MEMORANDUM OPINION Before the Court is the Complaint filed by Frankford Bank a/k/a Frankford Trust Company (the “Bank”) under 11 U.S.C. § 523(a)(2) objecting to the discharge of a debt arising out of the Debtor Barbara Chryst’s guaranty of certain loans made by the Bank to her various businesses. 1 Trial wa,s held on April 7, 1994, April 8, 1994 and May 12, 1994. 2 ...
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DECISION BE: DEBTOR’S MOTION TO AVOID LIEN Debtor Donald Karrer moves to avoid Paul Braunger’s judgment lien against his homestead. Braunger resists. Hearing was held on June 15, 1994, in Sioux City. This is a core proceeding under 28 U.S.C. § 157(b)(2)(0). Karrer filed his chapter 7 case on November 8,1991. He scheduled the following real estate: Plot 48, The Heights, an Ad...
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The matter before the court is the Wemi-monts’ motion for summary judgment. The Wernimonts claim that their income tax liability to the Iowa Department of Revenue and Finance (IDOR) for the 1985 tax year is dischargeable and that they may avoid the IDOR’s tax hens. Hearing was held November 8, 1994, in Sioux City, Iowa. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I) and (K). ...
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ORDER RE: TRUSTEE’S COMPLAINT TO AVOID TRANSFERS The matter before the court is the final trial of the Trustee’s complaint to avoid transfers to John P. Michelosen, Jr. pursuant to 11 U.S.C. §§ 544 and 547. Trial was held September 13, 1994, in Cedar Rapids, Iowa. Joseph A. Peiffer appeared for the Trustee. Michael C. Dunbar and Steven Kroff, admitted pro hoc vice, appeared...
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OPINION Background and Facts On or about April 10, 1987, Defendant guaranteed the payment of a note payable to Plaintiff executed by Gazelle International, Inc. (“Gazelle”) in the amount of $100,000.00, and on or about April 15, 1987, Defendant similarly guaranteed a $50,000.00 note payable to Plaintiff by Gazelle. The principal of each note was due one (1) year from the date of its execution to...
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OPINION Before the Court is the motion for summary judgment filed by TIERNEY, KALIS *57 & LUCAS (LAW FIRM), the Defendant in an adversary proceeding brought by FLEET BANK OF MASSACHUSETTS, NA. (FLEET BANK), as assignee of the Debtor, PATRIOT ILLINOIS CORPORATION (PATRIOT), to recover a fraudulent conveyance. PATRIOT owned and operated a 320 unit apartment complex known a...
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MEMORANDUM OPINION AND ORDER ON DEBTOR’S MOTION TO SUBSTITUTE COLLATERAL This matter came before the Court for a hearing on the Motion to Substitute Collateral filed by the Debtor, Mr. Ralph Suter. Appearing were Mr. James M. Gaines, the attorney for the Debtor, and Ms. Melissa Wimberly Larsen, the attorney for AmSouth Bank of North Alabama. The matter was submitted upon the record in the cas...
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MEMORANDUM OPINION ON HEALTH SCIENCE PRODUCTS’ MOTION FOR INJUNCTIVE RELIEF AND TO COMPEL TURNOVER, MOTION TO HOLD DEFENDANTS IN CONTEMPT AND MOTION FOR EMERGENCY EXPEDITED HEARING This matter came before the Court on the Debtor’s Motion for Injunctive Relief and to *123 Compel Turnover, Motion to Hold Defendants in Contempt and Motion for Emergency Expedited Hearing. An emergency hearing w...
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ORDER GRANTING MOTION TO CONVERT AND OVERRULING OBJECTION TO CONVERSION This matter is before the Court on a Motion to Convert from Chapter 7 to Chapter 13 filed by the Debtor on July 12, 1994 and an objection to conversion filed by an unsecured creditor, Mr. Reuben Self, on August 19, 1994. 1 After notice, a hearing was held on August 22, 1994. Appearing at that hearing were M...
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ORDER GRANTING MOTION FOR RELIEF FROM THE AUTOMATIC STAY FILED BY HUBBARD PROPERTIES, INC. This matter is before the Court on a Motion for Relief from the Automatic Stay filed by Hubbard Properties, Inc. After notice a *110hearing was held on August 15,1991 at which Mr. Michael G. Trucks, the attorney for the Debtor, and Mr. Thomas G. Tutten, the attorney for the Movant appeared. The Movant is a l...
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ORDER DENYING MOTION FOR RELIEF FROM THE AUTOMATIC STAY FILED BY PROPERTY MANAGERS, INC. This matter is before the Court on a Motion for Relief from Automatic Stay filed by Property Managers, Inc. After notice, a hearing was held on August 15,1994 at which Mr. David L. Morgan, the Debtor, Mr. Joe S. Erdberg, the attorney for the Debtor, and Mr. G. Hampton Smith, III, the attorney for the ...
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MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR RELIEF FROM THE AUTOMATIC STAY FILED BY DIANA A. SMITH This matter is before the Court on a Motion for Relief from the Automatic Stay filed *571 by Diana A. Smith, an unsecured creditor of the Debtor, Tricare Rehabilitation Systems, Inc. 1 Ms. Smith is also the plaintiff in a pending breach of contract action an...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER Presently before the Court is a motion by Bernard Friedman (“Debtor”) for an order pursuant to § 502 of the Bankruptcy Code (11 U.S.C. §§ 101-1330) (“Code”) and Rule 3007 of the Federal Rules of Bankruptcy Procedure (“Fed.R.Bankr.P”) disallowing the claim of the New York State Department of Taxation and Finance (“Departme...
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ORDER ON UNITED STATES TRUSTEE’S MOTION TO DISMISS CHAPTER 7 CASE THIS CASE came on for consideration on the United States Trustee’s Motion to Dismiss Chapter 7 Case Pursuant to 11 U.S.C. § 707(b). In the Motion, the U.S. Trustee requests that this Chapter 7 ease be dismissed pursuant to § 707(b) because granting relief would be a substantial abuse of the provisions of Chapter 7 of the Bankrupt...
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*165 OPINION Before this Court is the Trustee, Michael McLaughlin’s (the “Trustee”) Complaint against Hoole Machine and Engraving Corp. (“Hoole Machine”) to avoid allegedly preferential payments totaling $19,525.90 made by the Debtor, Parkline Corporation (“Park-line”) within 90 days of the filing of the Debtor’s bankruptcy petition. On February 5, 1993, this Court conducted ...
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OPINION Before this Court are the following applications brought by the Debtors, Michael and Judith Peller in the instant adversary proceeding: 1) the request for a permanent injunction against the enforcement of a Judgment entered in the matter of Syracuse University v. Neil Peller, et al., Superior Court of New Jersey, Law Division, Bergen County; 2) for a determination th...
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OPINION On November 12,1993, the Court conducted a trial in the matter of Hilda De La Cruz et al. v. Edward S. Cohen, Adv. No. 91-2094. The following constitutes the Court’s findings of fact and conclusions of law. FACTS From October, 1984 until the end of 1990, the debtor, Edward S. Cohen (“Debtor” or “Defendant” or “Cohen”) and his father, Nathan Cohen, mana...
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ORDER This matter came before the Court on the Plaintiffs Motion for Summary Judgment and Brief in Support of Summary Judgment filed on or about June 20, 1994. The defendant filed an Answer Brief and Statement of Genuine Issues in Opposition to Plaintiffs Motion for Summary Judgment on July 5,1994. The plaintiff filed Proposed Findings of Fact and Conclusions of Law with attached Exhibits. ...
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ORDER This adversary proceeding is before the Court on Plaintiffs motion for summary judgment. Plaintiff seeks a determination that a certain liability in the amount of $15,- *299 000 be excepted from discharge under 11 U.S.C. § 523(a)(6). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Upon consideration of the motion and the record, and for the reasons set forth below, the Court...
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ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This adversary proceeding is before the Court on Plaintiffs motion for summary judgment. Plaintiff seeks a determination that a certain liability in the amount of $38,-000 be excepted from discharge under 11 U.S.C. § 523(a)(6). This is a core proceeding under 28 U.S.C. § 157(b)(2)(I). Upon consideration of the motion and the record...
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ORDER This adversary proceeding is before the Court on cross-motions for summary judgment. In his complaint, Plaintiff-Debtor seeks a determination that a jury award of $500,000 to Defendant arising out of the parties’ divorce is dischargeable because it constitutes a property settlement. Defendant counters that the obligation is in the nature of alimony, maintenance, or support and thus is n...
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ORDER This adversary proceeding is before the Court on cross-motions for summary judgment. In his complaint, Plaintiff-Debtor seeks a determination that a jury award of $250,000 to Defendant arising out of the parties’ divorce is dischargeable because it constitutes a property settlement. Defendant counters that the obligation is in the nature of alimony, maintenance, or support and thus is n...
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MEMORANDUM OPINION This matter came before the Court on the Debtors’ Objection to Proofs of Claim filed by Luis R. Gutierrez (“Gutierrez”). After reviewing the pleadings, evidence, receiving testimony, exhibits, arguments of counsel, and authorities for their respective positions, the Court makes the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT The Debtor filed for relie...
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MEMORANDUM OPINION This matter came before the Court on the complaint of the Plaintiff, American Express Travel Related Services Company, Inc. to determine the dischargeability of indebtedness owing to them from the Debtors/Defendants, Thomas Roberto Diaz and Nelly Maria Diaz. Appearing for the Plaintiff, American Express Travel Related Services Company, Inc. were attorneys Gilbert We...
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*872 MEMORANDUM OPINION This matter came before the Court on the ■motion of the Debtor, Michael Elliott Smith for sanctions. Appearing were Robert Bran-son, attorney for the Debtor, Michael Elliott Smith, and Ted Estes, attorney for Lowe Enterprises and C.B. Lowe. Creditor, Lowe Enterprises and C.B. Lowe, individually, filed a Motion for Award of Attorneys’ Fees and Costs whi...
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MEMORANDUM ON MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES AND ORDER THEREON Gary Plotkin, Chapter 7 trustee (the “Trustee”) in the bankruptcy case of Stanley Mark Cohen (“Debtor”) filed an adversary proceeding against Pomona Valley Imports, Inc. dba Metro Motors (“Pomona”) seeking to avoid various purchases of new automobiles by the Debtor on the grounds ...
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MEMORANDUM OPINION Hearing was held on September 7, 1994, on the confirmation of debtors’ Revised Plan of Reorganization dated July 19, 1994. Creditor Warrenton Farm Credit, ACA, objected to confirmation on numerous grounds. The court took the matter under advisement. After hearing the respective arguments of counsel and after reviewing proposed findings of fact and conclusions of law submitt...
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MEMORANDUM-DECISION, FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER The Court considers herein motions by Danny Dale Cromer and Betsy Cromer (“Debtors”) and Robert E. Littlefield, Esq., Chapter 13 Trustee (“Trustee”) which seek an order expunging a proof of claim filed by Beneficial Homeowners Services Corporation (“Beneficial”). Also before the Court is Beneficial’s cross-motion seeking an order ...
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DECISION ON OBJECTION TO DISCHARGE PURSUANT TO 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A) Congress Talcott Corporation filed a complaint on November 5, 1992 seeking to bar debtor’s discharge under 11 U.S.C. § 727(a)(2)(A) and § 727(a)(4)(A). Trial of this adversary proceeding commenced on June 28, 1993, 1 continued on September 27, 1993 2 and December 6,1993 3...
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OPINION This matter is before the Court on a Complaint by the Trustee in Bankruptcy asserting certain causes of action in favor of the Debtors, Charles Henry Holler and Carlinda Kathleen Holler, against the above-captioned Defendants. The causes of action arise from a contractual relationship between Charles Henry Holler and Defendant, Trooper Publications, Inc. (TPI) and the stock ownership in...
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*16 ORDER This matter is before the court on the debtors’ Motion to Dismiss, and the objections to said motion filed by Robert F. Anderson, Trustee herein, and two creditors, the Resolution Trust Corporation [RTC] and Raymond J. Bartlett, individually and as personal representative of the estate of May Bartlett. Based upon the pleadings and arguments of counsel, this court finds ...
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ORDER This matter came before the Court on the confirmation of Debtors, Emma and Freddie Townsend’s, First Amended Chapter 13 Plan. At the confirmation hearing, attorney for the Chapter 13 Trustee, Diana Daugherty, objected to confirmation because under the amended plan, the proposed payments will not pay in enough funds to pay off home mortgage arrears within the 24 months stated in the plan.1 Am...
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DECISION Pursuant to 11 U.S.C. § 523(a)(8), Seton Hall University seeks to except from discharge the debt allegedly incurred by the Debtor, David T. Van Ess. The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). Venue in this case is proper pursuant to 28 U.S.C. §§ 1408 and 1409. The following cons...
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190 B.R. 269 (1994) In re CROSSROADS MARKET, INC. Bankruptcy No. 93-12964. United States Bankruptcy Court, N.D. Mississippi. December 12, 1994. Doris C. Landon, Oxford, MS, for Crossroads Market, Inc. D. Ronald Musgrove, Smith and Musgrove, Batesville, MS, for Mechanics Bank. Kenneth H. Coghlan, Hickman, Goza & Gore, Oxford, MS, for Merchants & Farmers Bank. Ralph M. Dean, Assistant U.S. ...
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OPINION ON MOTION TO AVOID LIEN In this case, the Bankruptcy Court has been called upon to determine questions relating to the discharge rights of the debtor. I This Court has jurisdiction over the case pursuant to 28 U.S.C. § 1334. Moreover, the Court finds that the matter before it is a “core matter” within the meaning of 28 U.S.C. § 157(b)(1) as exemplified in 28 U.S.C. §...
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OPINION ON DEBTORS’ OBJECTION TO INTERNAL REVENUE SERVICE PROOFS OF CLAIM Debtors Raymond and Rogers Mae Jackson filed this bankruptcy case on February 7, 1990. The plan has a 57-month duration, ending on November 7, 1994. The debtors have filed several objections to the claims of the Internal Revenue Service. I. The first objection was filed on May 16, 1994, The Internal Re...
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MEMORANDUM OPINION The Court having heretofore entered its Order finding that the educational loan, which is the subject matter of this Adversary Proceeding, falls within the category of those loans where repayment would work an undue hardship upon the Debtor to pay and, therefore, adjudged that the said loan was dis-chargeable. To supplement the said Order, the Court makes the following addition...
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MEMORANDUM DECISION DISALLOWING CLAIM NO. 281, SKILLMAN E. SIEWERT There has been no lack of diligence by the claimant in pursuing his claim. Unfortunately for the claimant, mere tenacity is not a basis for the allowance of a claim. To the extent that the claim is one for malpractice, it must be disallowed because the claimant was neither a client of the debtor law firm nor within the...
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FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter having come before the Court pursuant to the Debtor’s Motion for Preliminary Injunction & Declaratory Relief, filed June 21, 1994. William D. Baker and George King represented the Debtor. Both Pinal County, through attorney Lowell Rothschild, and Maricopa County, through attorney Barbara Caldwell, responded. Pi-nal County file...
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FINDINGS OF FACT, CONCLUSIONS OF LAW and MEMORANDUM DECISION (Dkts. 31, 34, 51, 65, 66, 200) PROCEDURAL HISTORY Confirmation was first argued on June 29, 1993 before Judge Ollason. (Dkt. 123). A further hearing was rescheduled for November 10, 1993. (Dkt. 167). That hearing was continued to December 14, 1993. (Dkt. 170). On December 14, 1993, this matter was again continued on th...
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ORDER In this Chapter 13 case the Trustee objects to confirmation of the Debtors’ Plan, contending the Debtors’ tithing of $200 per month violates the “disposable income” requirement of 11 U.S.C. § 1325(b). The Debtors argue that their longstanding practice of tithing and their religious lifestyle support confirmation, urging application of In re Navarro, 83 B.R. 348 (Bankr.E.D.Pa.1988). This...
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MEMORANDUM OPINION AND DECISION This cause comes before the Court on the Objection of D.M. Reid Associates, Ltd. to the Trustee’s Notice of Intent to Make a First and Final Distribution, the Trustee’s Response to the Objection, and the Reply of D.M. Reid Associates, Ltd. A Hearing was held and the parties were afforded the opportunity to present evidence and make arguments they wished the Cou...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimant Mary Williams, DS-159245, to interpret the A.H. Robins Reorganization Plan (“Plan”). Williams has accepted an Option 3 offer by the Daikon Shield Claimants Trust (“Trust”) in full compensation of her Daikon Shield related injuries. She now seeks to bring a state medical malpractice action based on her Daikon Shield re...
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MEMORANDUM This matter is before the Court on motion by the Daikon Shield Claimants Trust (“Trust”) to interpret the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”), and to interpret the Trust’s rules governing alternative dispute resolution (“ADR”). The Trust asks the Court to: (1) Interpret the Trust’s ADR rules to find that an ADR referee has no authority...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimant Jeanette Harris, DS-296511, to extend the time for submitting her Option election form. Harris’ claim against the Daikon Shield Claimants’ Trust (“Trust”) was disallowed on July 13,1991, for failing to elect an Option before expiration of the twelve-month deadline, as provided by Section B of the Claims Resolution ...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimant Mary Louis, pursuant to Federal Rule of Civil Procedure 60(b)(6), for reinstatement of her disallowed claim. Her prayer for relief rests on the undisputed fact that she did not actually receive any notices or correspondence from the Court or the Daikon Shield Claimants Trust (“Trust”). For reasons given below, the Co...
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MEMORANDUM This matter is before the Court on motion by the Daikon Shield Claimants Trust (“Trust”) seeking an interpretation of a portion of the A.H. Robins bankruptcy reorganization plan (“Plan”) and an order thereof. Certain claimants 1 responded in opposition *514 to the motion, and the Court held oral hearing on July 6, 1993. With this Memorandum and accompanying Order, the Court int...
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ORDER This day came Man Jay Hodin, Esquire, in response to this Court’s Order to Show Cause issued on January 22,1994. The Court having heard evidence and argument, and for the reasons stated from the Bench, finds the Respondent Alan Jay Hardin in contempt of Court for the following contemptuous actions: 1. Filing a complaint in the United States District Court for the Southern District of Flori...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimant Rita E. Tower, DS-310197, to vacate the decision of the arbitrator in her Fast-Track Arbitration. Tower, who is proceeding pro se, styles her motion “Notice to Vacate.” For reasons which follow, the Court denies her motion. Tower is a timely Option 3 claimant who agreed in May, 1993, to submit to binding Fast-T...
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MEMORANDUM This matter is before the Court on motion . by Daikon Shield Late Claimant Cruzita R. Ocasio, LADS-51544, seeking an interpretation of the A.H. Robins bankruptcy reorganization plan1 (“Plan”). Ocasio asks the Court to declare that her pending state court suit is an Unreleased Claim under the Plan, and therefore not subject to this Court’s injunction against Daikon Shield suits. For re...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimant Ada S. Mantush, DS-276481, asking the court to order the Daikon Shield Claimants Trust (“Trust”) to reinstate her claim. The Trust disallowed her claim because she failed to meet the deadline for returning an option selection form. Her prayer for relief rests on the argument that she did not actually receive any notic...
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MEMORANDUM This matter is before the Court on a motion by Daikon Shield claimant Miriam Alma-lich and others for an extension of time beyond a deadline established by the Daikon Shield Claimants Trust (“Trust”). The deadline, set on August 1,1994, is the last date on which claimants may file forms necessary to complete their claims. Claims remaining incomplete after that deadline may be disallow...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimants Trust (“Trust”) Claimant Anthony Gunnell, DS-221545, to increase the limit on his potential award under alternative dispute resolution (ADR). When Gunnell elected to resolve his claim through ADR, the limit on awards was $10,-000. Thereafter the Trust raised the limit to $20,000. Claimant, by counsel, asks the Court...
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MEMORANDUM This matter is before the Court on motion by Daikon Shield Claimants Laura Welch and Kenneth Welch for permission to use certain documents in their pending lawsuit against the Daikon Shield Claimant’s Trust (“Trust”). The Trust has responded in opposition, the Court has heard oral argument, and the matter is ripe for decision. For reasons which follow, the Court will deny the motion. ...
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MEMORANDUM This matter is before the Court on a motion by Daikon Shield Claimant Kathryn M. Besag, et al., for an interpretation of various portion of the Reorganization and the Claims Resolution Facility under which the A.H. Robins bankruptcy is being managed. Mov-ants ask several questions requiring this Court to interpret portions of: (1) the Debt- or’s Sixth Amended and Restated Plan of Reor...
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MEMORANDUM This matter is before the Court on the Movants’ motion to interpret, in part, the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”) and the related documents under which the Robins Bankruptcy is being managed. The Movants have requested that the Court interpret these instruments in the following manner: (1) Claims Resolution Facility (“CRF”) § G.2 g...
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MEMORANDUM This matter, arising from Daikon Shield Claimant Glenna F. Kidd’s motion to show cause, was heard by the Court on November 22, 1994. For the reasons which follow, the Court will treat Kidd’s motion as a motion to reinstate a disallowed claim and will deny her any relief. I. Kidd initially submitted her Option 3 claim form in March, 1990. After reviewing her claim, the Trust extended ...
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MEMORANDUM This matter is before the Court on Mov-ant’s motion to interpret, in part, the Sixth Amended and Restated Plan of Reorganization of the A.H. Robins Company (“Plan”) and the related documents under which the A.H. Robins Company bankruptcy is being managed. The Court will grant the Movant’s motion and issues its interpretation in this Memorandum. I. Movant is the twenty year old ...
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MEMORANDUM This matter is before the Court on Mov-ant’s Motion For Relief From Injunction to Stay the Running of State Statute of Limitation Pending a Forthcoming Motion to Interpret the Plan. The Court will grant Mov-ant’s motion to the extent set forth below. Movant, an Option 3 claimant, received and rejected her initial offer and requested re-review. Pursuant to this request, her claim is be...
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ORDER Lavon Lyons (“Debtor”) has asserted the right to a jury trial in this adversary proceeding seeking recovery for alleged fraud against defendants Southeastern Bank and R. Eugene Crews pursuant to the Supreme Court’s holding in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989). The adversary proceeding filed by Debtor is a core matter. 28 U.S.C. §§ 157...
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MEMORANDUM DECISION GRANTING MOTION OF DEBTOR TO EXPUNGE CLAIM # I OF WILLIAM HURLEY The debtor, Ralph Urban (“Urban” or “Debtor”) has sought to have this court disallow a $15,000 claim filed by William Hurley (“Hurley”). Hurley’s claim is based on Urban’s rejection of an executory contract for the sale of certain real property. The Debtor and Hurley have been engaged in litigati...
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AMENDED MEMORANDUM OPINION This opinion amends the court’s memorandum opinion entered in this case on July 26, 1994. Trial was held on July 11, 1994, on plaintiffs complaint to enjoin defendant’s conveyance of real estate on the ground that it would violate the codebtor stay pursuant to 11 U.S.C. § 1301. After hearing evidence and argument of counsel the court took the matter und...
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ORDER SUSTAINING OBJECTION TO EXEMPTION This case came on for hearing on the objection of Mary Maranda to the debtor’s claim of exempt property. J. Thomas Church appeared for Mary Maranda and Michael J. Iannacone appeared for the debtor. Pursuant to the pleadings and the file in this case, I make the following memorandum order: BACKGROUND 1 Pre-bankruptcy The debtor and Mary Maranda...
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ORDER This matter came before the Court for hearing on July 21, 1994, pursuant to an objection by the Chapter 7 Trustee to the Debtor’s claimed exemption, under 11 U.S.C. § 522(b)(2)(A) and Minn. Stat. § 550.37 subd. 22, of a right of action for sexual discrimination and harassment. Mary E. Langan appeared on behalf of the Trustee and Keith Chwialkowski appeared on behalf of the Debtor. Upon re...
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OPINION REGARDING PARTIAL ASSIGNMENT OF DEBTOR’S INTEREST IN PROMISSORY (WRAP) NOTES I. ISSUES Among other things, this adversary proceeding raises the following issues. First, does the Official Unsecured Creditors Committee (the “Committee”) have standing to bring this adversary proceeding against Oak Park Village Limited Partnership and Oak Park Village No. 2 Limited Partnership (the “Defenda...
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ORDER ON MOTION FOR SUMMARY JUDGMENT and ORDER ON OBJECTION TO CLAIM #12 OF OB/ GYN SOLUTIONS, L.C. THIS is a yet-to-be confirmed Chapter 11 case and the matter under consideration is a Motion for Summary Judgment filed by OB/ GYN Solutions, L.C. (OB/GYN), one of the defendants named in this Adversary Pro *481 ceeding commenced by Richard R. Six (Debt- or), and a Motion for S...
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